Protest for non-acceptance, is equivalent to an intimated assignation.
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James Gray, in 1729, drew a bill upon the Earl of Dundonald, for L. 17: 10s. payable to William Mitchell on demand. The bill was next day protested for non-acceptance. An action for payment was raised against his Lordship. His Lordship brought a multiplepoinding; a James Mitchell, having, as creditor of Gray, used arrestments in the Earl's hands, and obtained decree of furthcoming.
The Lord Ordinary ‘preferred Mitchell the arrester, in respect of his diligence, to the interest produced for William Mitchell.’—William Mitchell, in a petition, pleaded, That there was no competition between creditors of James Gray. The petitioner is not Gray's creditor, but the Earl's; having paid Gray full value for the draft on the Earl. Having intimated his right by the protest taken; he became as effectually possessed of the debt, as if the Earl had granted a bond for it to Gray; Which Gray had assigned to the petitioner; and which the petitioner had intimated. James Mitchell's diligence, therefore, commenced after Gray was denuded, and must be utterly ineffectual.
Answered: A protest for non-acceptance, ought not to be accounted equivalent to an intimated assignation; for the drawer of the bill continues liable; whereas the assignee has no recourse on the cedent. Besides, Gray was bankrupt in terms of the statute of 1696; so that whatever the Earl owed to him, was subject only to the diligence of his creditors, not to his own arbitrary disposal.
The Lords altered the Lord, Ordinary's interlocutor; and preferred the holder of the draft to the arrester.
Lord Ordinary, Lord Justice Clerk.For Petitioner, P. Wedderburn.For Respondent, P. Boyle.
Fol. Dic. v. 1. p. 97. Session Papers in Advocates' Library.
