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.
John Spotiswood, v. Archibald M'Neil
Date: 4 March 1778 Case No. No 85.
A bill protested for not acceptance, found to be equivalent to an intimated assignation, and preferable to a posterior arrestment in the hands of the person drawn upon.
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Grahame being indebted to Spotiswood, gave him a bill for the money on M'Tavish, his debtor. M'Tavish refusing to accept, the bill was duly protested for non-acceptance, and afterwards for non-payment, 1st May 1775.
Thereafter Spotiswood, and his attorney, raised diligence on the bill, and arrested, in the hands of M'Tavish, 30th October 1775; and brought a furthcoming. Archibald M'Neil, a creditor of Grahame's, likewise arrested in the hands of M'Tavish, 17th September 1775, upon a depending action against Grahame, in which he afterwards obtained decreet.
A competition ensued betwixt Spotiswood and M'Neil, as to their preference upon the funds in M'Tavish's hands; in the course of which, Spotiswood repeated an action against M'Tavish for payment.
Pleaded for Spotiswood: Grahame's bill on M'Tavish, and the protest for non-acceptance, are equivalent to an intimated assignation; and, therefore, must be preferable to M'Neil's arrestment, which is posterior to the protest.
Pleaded for M'Neil: If Spotiswood had chosen to take the bill and protest as a virtual assignation, his action for payment lay against M'Tavish alone, as his proper debtor. He could not have had recourse against Grahame; for, the only warrandice implied in an assignation, is, that the debt exists; not that the debtor is solvent. But Spotiswood, by using arrestment in the hands of M'Tavish, rejected to rest on his security, and hold the bill as an assignation. The diligence imported, that M'Tavish remained debtor to Grahame, and that Spotiswood had still recourse on Grahame; which is inconsistent with the plea, that he is assigned to the debt. M'Neil's arrestment being prior to that used by Spotiswood, he is preferable.
The Court were of opinion, that the using of the arrestment afterwards, did not bar Spotiswood from pleading his preference on the bill and protest, as equivalent to an assignation intimated.
The judgment was, ‘In respect of the bill drawn by Grahame upon M'Tavish; presented to him for acceptance on the first March 1775, and protested against him for not payment, on the first of May thereafter, find John Spotiswood and his attorney, preferable on the sums due by M'Tavish to the common debtor.’
For Spotiswood, Solicitor General.Alt. Crosbie.
Fol. Dic. v. 3. p. 79. Fac. Col. No 18. p. 33.
