Scottish Court of Session Decisions

Subject_1 PART I.

BILL OF EXCHANGE.

Brown and Company,
v.
Hutchison Dunbar

Date: 8 December 1807
Case No. No. 21.

Noting a bill on the day of payment is good negotiation, tho' the protest be not extended till some days afterwards.

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Robert Ogle of London drew a bill for £125 on Sinclair Wright of that city. It was indorsed by the drawer to Hutchison Dunbar of Edinburgh, who indorsed it to Brown and Company of Leeds. Brown and Company indorsed it to their bankers in London, Messrs. Foster, Lubbocks, and Company. It became payable on the 3d of July 1807, that being the last day of grace; on that day it was presented for payment; and payment being refused, it was noted by William Armstead, a notary, in the usual way, “2, 6 W. A. 3d July 1805.”

Thus noted, but without any regular instrument of protest, it was returned to Brown and Company, who wrote immediately to Dunbar in these terms:

“The bill we received from you the 9th of May (say R. Ogle upon Sinclair Wright, No. 21, Whitehorse Lane, London, from the 30th April 1805, at two months, amount £125.) is returned to us for non-payment, but, not being protested, have returned it to our bankers to have the needful done. When we receive it, shall send it to our friend in Edinburgh, who will call upon you for payment.”

Dunbar refused to pay the bill. Brown and Company gave him a charge for payment, which he suspended.

The suspender stated various defences, in particular that the bill had not been protested in due time, and that due notice of the dishonour was not given to him, since the letters of the chargers mentioned the bill not being protested, which authorised him to think that it was not negotiated, nor any recourse against him intended.

The Lord Ordinary “Sustained the reasons of suspension.”

But on a reclaiming petition and answers, the Court were clear that the noting was sufficient negotiation, and that the letter, signifying only that the bill had not yet been protested, left fully to be understood the fact that it had been noted, which is a common practice, the protest being afterward drawn out in regular form. The Court therefore altered the Lord Ordinary's interlocutor, and sustained the recourse against the suspender.

Lord Justice Clerk, Ordinary. Act. James Moncrieff. Alt James Keay. S. Macknight, W. S. and David Wardlaw, Agents. F. Clerk. Fac. Coll. No. 13. p. 39.