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Scottish Court of Session Decisions >>
Home and Elphingston v Murray of Stenhope. [1674] Mor 863 (11 December 1674)
URL: http://www.bailii.org/scot/cases/ScotCS/1674/Mor0200863-066.html Cite as:
[1674] Mor 863
Subject_1 ASSIGNATION. Subject_2 Intimation by what equivalents suppliable.
Home and Elphingston v. Murray of Stenhope
Date: 11 December 1674 Case No. No 66.
It was alleged that the debtor had promised payment to the assignee. Found that this promise, if proven scripto, but no: other-wise, would be equivalent to intimation.
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In a competition betwixt an assignee and an arrester, it was alleged, That the assignee should be preferred, because the assignation was anterior to the arrestment; and, though it was not intimate, yet the equivalent was done, in so far as, the debtor being desired to make payment to the assignee, and shewing his assignation, did promise to pay the same; which, upon the matter, was like a bond of corroboration, which certainly would prefer the assignee, notwithstanding he had not intimate his assignation.
The Lords found, That if the said promise were verified by writ, it should exclude the arrester; but that it could not be proven by the debtor's oath, in prejudice of the arrester: And even as to the debtor, the said promise could not bind him, being made in contemplation of a right supposed to be in the person of the assignee; which being found not to be a valid right, there were no reason that the debtor should pay twice.
And whereas it was pretended, That if the debtor had not accepted the debt, and promised payment, the assignee would have done diligence, so that he would have been preferable to the arrester:——The Lords thought, that sibi imputet that he had not perfected his right, as was found before in the case of Pitfoddel's contra Donaldson.
Reporter, Forret.Clerk, Gibson.
Fol. Dic. v. 1. p. 64. Dirleton, No 201. p. 89.
