Scottish Court of Session Decisions

Subject_1 BILL OF EXCHANGE.
Subject_2 DIVISION II.

The Porteur's Action against the Person upon whom the Bill is Drawn.
Subject_3 SECT. I.

Of Bills not Accepted.

William King
v.
Aisdale

Date: 23 November 1714
Case No. No 81.

The possessor of a bill not accepted, borrowing the money from the person drawn upon, on an obligation to repay, if the drawer should not pay by a time limited; found not entitled to plead, when the money was demanded from him, that the drawer had not been discussed. But, the creditor having re-drawn on the drawer, and not having duly negotiated the draft, was found, on that account, to have lost his recourse on the person to whom he had paid the money.

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John Richardson, draws two bills on William King; one for L. 75, payable to Robert Aisdale; and another for L. 50, to Adam Wright.

King, having no effects, refuses to accept; but, in respect of Aisdale and Wright, who were linen-merchants, and wanted the money to be laid out at a market, King takes receipts of the money on the back of the said two bills; and advances L. 100 Sterling; for which he takes Aisdale and Wright's promissory note, obliging them jointly to repay the said sum to King; in case that Richardson should not, in due time, pay a bill that King was to draw upon him for the like sum. This obligation is dated the 5th of August 1709.

Upon the 2d of October thereafter, King draws a bill of L. 100, payable to Mr John Glassils, upon the 4th of November, directed thus, To Mr John Richardson, at the Three Cups in St John's Street, near Smithfield, London; which bill is protested for not payment upon the 7th of November.

King now pursues Aisdale, one of the two obligants, for payment of the said L. 100 Sterling, with annualrent and exchange.

It was alleged: No process, because Richardson was not duly discussed; no diligence being done against him; but only a protestation for not payment.

It was answered for the pursuer: That he was under no obligation to discuss Richardson; he having advanced the money, not upon Richardson's bill, but upon the defender's obligement; bearing, that if the money were not duly paid by Richardson, he and Wright should repay the same.

‘The Lords repelled that allegeance.’

It was further alleged: That King having taken receipts upon Richardson's bills; and likewise having taken a separate qualified security from the defender and Wright, he ought, quamprimum, to have drawn upon Richardson, for his own and the defender's relief; and, in case of not due payment, he ought to have acquainted the defenders, and furnished them with instructions, viz. Richardson's former bills and discharges; whereby they might recur and operate their own relief: All which he neglected; and did not so much as draw a bill till the 2d of October, near two months thereafter, and not payable till the 4th of November, never presented nor protested for not acceptance, but, three days after the term of payment, protested at London, at a place pretended to be Richardson's dwelling-house; but he not found personally, nor any advice for what appears given to him of such a draught, or that he had advanced money, or that he was to draw.

The pursuer answered: That having advanced his money in a friendly manner, he was obliged to do no diligence; for, by the obligement libelled, which is clear, there was no bill then drawn; but to be drawn; in which he might use his own discretion to draw when he thought fit; and yet he did draw within two months; and protested for not payment when the bill fell due, and advised the defender of the protest: Neither was he obliged to deliver up the instructions of the payment of Richardson's former bill; nor could he do it safely, unless the defender had offered payment; and, upon the whole, he was nowise in the case of a possessor of a bill, who is bound to negotiate with diligence.

It was replied: That the pursuer having taken double security, viz. a receipt of the money in Richardson's bill, whereby Richardson became bound to answer his re-draught; and, by the quality of the defender's obligement, being bound to re-draw; and the defender only liable in case of Richardson's not due payment; the defender was but subsidiarie liable, and the pursuer obliged to have drawn more timeously, and upon fewer days; and to have presented the bill for acceptance, or protested in case of not acceptance; and to have advised the defender and Wright, that they might have seen to their relief.

‘Which the Lords sustained, and assoilzied the defender.’

Dalrymple, No 116. p. 162.