Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION IV.

Private Deed, how far probative.
Subject_3 SECT. I.

If probative of its Onerous Cause against Creditors and Donatars of Escheat.

Livingston
v.
Abernethy and Lord Kilsyth

Date: 28 January 1625
Case No. No 435.

An assignation, expressing that it was made for sums of money addebted by the cedent, was found to afford evidence of its own onerosity.

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In an action Livingston contra Abernethy and Lord Kilsyth, whereof the case was, that the Lord Kilsyth being addebted to one Lennox in the sum of 500 merks, to which sum Lennox makes Balfour his assignee, and in the assignation it is expressed, that it is made for sums of money addebted to him by the cedent; and which assignation is intimated to the Lord Kilsyth, and that same day of the intimation it is arrested by Abernethy, creditor to Lennox, conform to his bond; which bond was long before the date of the assignation made to Balfour; upon the which arrestment and assignation, so made by the said two parties, the Lord Kilsyth suspends upon double poinding; wherein the two parties compearing, and disputing which of them had best right to the sum, the arrester alleged, That he should be preferred to the assignee, in respect of the bond for debt owing to him before the assignation, and that he offered to prove, that his arrestment, albeit executed the same day of the intimation, was yet executed that day preceding the hour and time of the said intimation, and so was before the intimation affected to him, by his arrestment, as a lawful creditor, verified by the bond produced; whereas, the assignee ought not to be preferred, there being no preceding cause in writ before the assignation extant, which might constitute the cedent debtor to the assignee; and so the said assignation fell under the statute of dyvoury, seeing it is made in his fraud and prejudice, who is a true and lawful creditor, and done to a conjunct person, the cedent being the assignee's sister's son, and no writ being extant to qualify the cedent his debtor, and the cedent being otherways altogether unanswerable to pay the arrester's debt, being now fugitive, and the assignee having acquired, beside this assignation, all other means and estate, pertaining to the cedent his debtor. This allegeance was repelled, and the assignee was preferred to the arrester; because the arrester had not done any more diligence upon the arrestment, and the assignee had charged upon his assignation; albeit the arrester alleged, That he could do no more diligence, seeing, immediately after the arrestment, the Lord Kilsyth had drawn in the matter, by suspension and double poinding, the dependence whereof made all further process and charges to cease; which was not respected. And the Lords found, that it was sufficient to the assignee, to qualify the cause of his assignation, viz. that it was made to him, for sums owing to him by the cedent, by the assignee's own oath; which oath of his the Lords found sufficient to instruct the debt, and cause of the making of the assignation; and found, that it was noways necessary to instruct or qualify the same by any preceding writ, made by the cedent to him; but that it was enough and sufficient, if he should swear by his oath, that he was addebted to him at the time of the assignation in as great sums, as the sum whereto he was assigned; and repelled the allegeance proponed for the arrester, in respect thereof.

Nota.—This decision is contrary to that made betwixt Duff and Kellie, 23d March 1624 (see. Appendix); and to another betwixt Young and Denniston, 12th February 1622 (supra), and to other cases; see Appendix.

Act. Per Se. Alt. Nicolson, elder, & Primrose. Clerk, Gibson. Fol. Dic. v. 2. p. 250. Durie, p. 160.