Scottish Court of Session Decisions

Subject_1 COMPETITION.

Creditors of Charles Gray

1749, Nov. 24.
Case No. No. 7.

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In the competition of the arresting creditors of Charles Gray, Baird and Company being on the priority of their arrestment preferred for payment of a bill accepted by the said Charles Gray and James Gray his brother, Miller and Company, the creditors postponed, insisted that Baird and Company should assign the bill against James Gray. Answered, Not bound to assign, because they knew that James was truly no more than cautioner. Then compearance was made for James, and a proof allowed him, and proved pretty convincingly by the Company, the creditors in the bill, that it was given as security to them for relief of their engagement for Charles for a bargain of victual, which they were forced to pay;—but the question recurred, Whether a proof by witnesses was competent? However, as this claim of assigning is only a claim in equity, that proof was sufficient not to oblige them to assign,—and I quoted the case 24th February 1708, Kennedy against Vans. (Dict. No. 24. p. 3370.) However, Miller may, as creditor to Charles Gray, yet confirm his right of relief.