demanded, which, in the case of days of grace, will be the last day of grace.1 If the bill be payable on demand, it is the date of the bill itself; and so if the bill be payable at sight.2 Bank notes are specially excepted from prescription in the act. This prescription is suspended by the creditor's minority, so that it is presumed, that were a person to indorse a bill to a minor, say two days before the termination of the six years, it would not prescribe against the minor until two days after his reaching majority. Prescription cannot be pleaded where the bill is merely produced as an article of discharge in an accounting.5 No acknowledgment within the six years of the bill being due will interrupt the prescription, as in other legal prescriptions. Thus, marking of payment of interest within the years-the best proof that the principal was unpaid-was not admitted as an interruption; though in one case the court thought fit, on account of "the special circumstances," to admit a document of date the day before the termination of the six years to elide prescription.8

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But a separate document, granted within the six years, or after it, may be effectual not as saving the bill from prescription, but independently of it; and if held sufficient for that purpose will carry a prescription of its own, which will generally be the ordinary prescription of debts. It has to be observed, however, that as the prescription presumes payment, no document during the period of prescription will be effectual, unless it be sufficient of itself to constitute an obligation; whereas, after the period of prescription a document merely admitting that the debt has not been paid will suffice.10 The bill, in short, is destroyed by the prescription, but the original debt, of which it was the representative, if not paid, subsists. There are only two ways, however, in which the statute admits of its being proved: the oath of the debtor, or a writing under his hand." As in the case of the triennial prescription the oath must be taken in all its parts, as a simple admission or denial of the debt;1 but an oath which admitted the constitution of the debt, but

.12

1 12 Geo. III. c. 72, § 37. 23 Geo. III. c. 18, § 55.-2 Moffat v. Marshall, 31st January 1838.-3 12 Geo. III. c. 72, § 59.- Ibid. §. 40.-5 Hall v. Arnot, 19th December 1837.-6 Th. 630.-7 Ferguson v. Bethune, 7th March 1811.- Lindsays v. Moffats, 19th March 1797, M. 11137.9 Watson v. Hunter & Company, 18th February 1841.-10 Th. 639. Campbell v. Ballantyne, 21st June 1839. Wood v. Howden, 7th February 1843.-- 12 Geo. III. c. 72, § 39.-12 Noble v. Scott, 23d February 1843. Galloway v. Moffat, 18th July 1845.

was qualified by a vague statement that it had been paid by a relation, precluded prescription. The writ does not require to be down to the date of the demand, for if it show that the debt was unpaid at the termination of the six years, the presumption is against the debtor, and he must show that it has been paid. So it was decided where the debtor wrote to the creditor in these terms:-" Send a copy of the bill, and the payments made on the back of it, so that I may settle the balance." 3 Such a document cannot, of course, prevent any party to a bill, except the author of the document, from profiting by the prescription of the bill. Nor can a writ by a party who is not the obligant have any effectso, a receipt by a banker-discounter, of the contents of the bill as retired by the drawer, did not save him from the effects of prescription in a claim against the acceptor.* Where the party died within the years of prescription, and his son and representative paid a sum to account within the years, yet on the years having elapsed, denied all knowledge of the bill, the plea of prescription was sustained, subject to a reference to the party's oath.5 In the oath he did not assert that he had made the payment by mistake, and indeed appeared by his deposition to have made it in the understanding that it was a just debt; and he was found liable."

Prescription may be interrupted by action brought by the creditor. The action may be summary diligence (see Sect. 11), where that method is competent; or by bringing into court an ordinary action; or by a claim in any competing process, as a Sequestration, Ranking and Sale, &c.; but the analogy will not hold of a claim in a private trust. It is necessary that the action should have gone to the extent not merely of preliminaries, but of bringing the matter under judicial notice, and of intimation to the debtor. Thus a registered protest was not sufficient without a charge.10 (See Sect. 11.) An ordinary action must proceed to the extent of citation, and if it go no farther, as a citation prescribes in seven years, so will the assistance given by it to the

'Paul v. Allison, 10th March 1841. See Christie v. Henderson, 19th June 1833. Th. 637.-3 Russell v. Fairie, 23d May 1792, M. 11130. See M'Kenzie v. Noble, 15th February 1827.- Buchanan v. Macdonald, 15th July 1840.-5 Darnley v. Kirkwood, 6th March 1845.-6 Rankin v. Kirkwood, 5th February 1846.-7 12 Geo. III. c. 72, § 37.-8 Fraser v. Urquhart, 11th June 1831. Walker v. Easton, 17th June 1831.-* See these heads in Index.-9 Th. 632.-10 Scott v. Brown, 12th December 1828.

bill. If decree has been obtained, the prescription of forty years begins to run, and a decree against one of several acceptors constitutes the debt in the bill against the others.2

SECT. 10.-Lost or Stolen Bill.

When a bill is lost or stolen it of course ceases to be a document of debt in favour of him from whom it has so passed, but he may still obtain payment by procuring the warrant of a judge, and giving security to the person against whom he claims. If the bill is in his own name exclusively (as by being payable to him by name and not indorsed, or being specially indorsed to him), and so cannot be used by any finder, the security is only against the original holder (or rather an indorsee of his) claiming upon it again, should it be found. If it is in a state in which it may be claimed by any bearer, the security must be to the effect that the original holder will make restitution if a new holder succeeds in a claim for payment. Should the person called upon to pay a bill thus lost, or one which has been destroyed, deny that such a bill had existed, the contents may be established by an action of "proving the tenor," which can only be brought before the Court of Session.5 The person wishing to have recourse on a bill which he has lost, must attend to all the requisites of protest and notice, &c., as above, in the same manner as if he had the bill in his possession. In the case of bills payable to the bearer, notice of the loss must be sent to all the parties. This notice is different from notice of dishonour, which is merely a personal obligation on the holder, as to which he is acquitted if he have done his best to fulfil it. In the present case, notice must come home to the party, before he can be bound by it. As a matter of prudence, notice should be sent whatever the nature of the bill may be-whether it be in a state in which any bearer may present for payment, or be payable only to a special payee; and all parties should, as far as possible, be warned by advertisement against taking the bill.

SECT. 11.-Action and Diligence.

It may be necessary to give a brief view of the manner in

1 Th. 631.- Ibid. 633.-3 Glen on Bills, 171.- Th. 320.-5 Ibid. 319. D. P. 505.- Bayley, 302. Th. 511.-7 Bayley, 131. Ch. on. B. 275.

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which bills and notes are made effectual against the parties bound by them, by legal process, though this subject in general belongs to another department of the work.* Bills and notes, like any other obligatory document, may be enforced by a process before any competent court in the ordinary form. In certain circumstances, however, they are specially placed in the class of privileged documents, upon which execution may proceed without action, registration in the books of a court being held equivalent to a decree obtained and recorded in that court.1 The operation of this practice is more fully explained elsewhere. To entitle a bill or note to the privileges of summary diligence, it is necessary that there be no defect on the face of it, or that all the requisites as to stamp, sum, signature, absence of correction or erasure, &c., as above described, be fulfilled, and protest must have been taken and recorded. After a bill had passed through several indorsations, addresses were inserted under the names of the Indorsers, which turned out to be more or less erroneous, and they were inserted in the Protest. The House of Lords held that this did not vitiate the bill, as it was the subsequent insertion of words which did not affect the substance of the obligation; and that the protest was not injured by the insertion of this surplus matter.2

It will be a good defence against the diligence, and a ground for suspending it, that any of the requisites of due negotiation in presentment, notice, &c., have been neglected. "Summary execution is competent only for the amount of the bill or note, with interest from its date in case of nonacceptance, or from the term of payment in the case of nonpayment, as also for exchange of any other sum, if specified in the bill. But such a claim, whether for exchange, re-exchange, damages, interest, or expenses, when not specified in the bill, can be recovered only by ordinary action, or if the diligence is suspended, by being included with the other sums charged for, and thus made the subject of discussion in the suspension." 1."3 Diligence proceeds against the acceptor of a bill (if it have been accepted), or the maker of a note, and these with the drawer (in the case of a bill) and indorsers (if there be any), are all equally liable, and any one or all may be sued; an indorser from whom payment is

* See below, Part XIV.-1 1681, c. 20. 1696, c. 36. 12 Geo. III. c. 72. $41. 23 Geo. III. c. 18, § 55.-+ See below, Part XIV.- See above, p. 319.-2 Russell v. Creighton, 11th May 1843. 2 Bell, 81.

Th. 553,

exacted having recourse against previous indorsers and the drawer. If the bill have not been accepted, diligence proceeds against the drawer and indorsers. An acceptor can bring no action on the bill, but if he have accepted it for accommodation, he has indemnity against the party accommodated.1 Summary diligence on bank notes embraces interest from the period of demanding payment. Summary diligence does not proceed on checks or drafts on bankers.3 In 1838, the process of summary diligence was simplified, and extended to Sheriff Courts.*

Th. 579. Statutes as above.- 5 Geo. III. c. 49, § 4.-3 Th. 557.— * See Part XIV. Chap. V.