A prior assignee found obliged to show onerosity, in competition with an arrester who had charged, but not denounced.
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One Craw arrests in the hands of certain persons some sums and corns addebted by them to one Mr James Irvine, who was addebted to Craw in some money; for satisfaction whereof they being pursued to make the same furthcoming, compeared a person who was made assignee to the particulars arrested by the said Irvine, and alleged, That the goods should be decerned to pertain to him, m respect of the assignation made to him before the arrestment, and that the same was also intimate before the arrestment; in fortification whereof the said assignee condescended on the onerous cause, for making of the said assignation, and offered him to prove, that Irvine his cedent being debtor to sundry persons his creditors, in certain sums of money, this assignee at his desire promised to the saids creditors payment of their debts: Likeas, he had truly made payment to them, for satisfaction whereof, and relief of the said payment, the said assignee got the said assignation, and so depending upon that onerous cause, he ought to be preferred to the arrester; and the foresaid cause he offered to prove it by the oaths of the saids Irvine's creditors, to whom he had made payment. It was answered for the arrester, That that assignation ought not to be respected in prejudice of him who was a lawful creditor, and who had a registrate obligation, which was a sentence against the common debtor, long before the said assignation; before the which assignation he had also charged his debtor, and who becoming bankrupt and fugitive out of the country since, could not make an assignation to another of his creditors in prejudice of his debt and sentence, and charge preceding, thereby to prefer one creditor at his pleasure to another doing more timely diligence; and so alleged that that assignation came under the statute of dyvours, specially seeing there was no writ extant to prove the preceding debt, for which the alleged assignation was made. It was answered for the assignee, That there was no necessity for him to shew any preceding debt in writ; for, what was betwixt Irvine and his creditor, it was neither pertinent nor possible for him to know, but it was certain, that he, at Irvine's desire, having promised to pay them, and having according thereto made payment, and receiving this assignation for his relief or warrant, he therefore hath a just cause of his debt, whereupon he offered to give his own oath of verity, which is the manner of probation, prescribed by the act; and so he ought not to be urged to any further probation, and yet he also offered to prove the whole cause of the assignation by the oaths and depositions of the saids persons creditors of the said Mr James Irvine, who were persons omni exceptione majores, viz. the one being the bishop of Dunkell, and the other the minister at. The Lords astricted the assignee to prove by writ, that Irvine was debtor to these two persons paid by the assignee, and would not sustain the same to be proven by the parties' oaths, neither would sustain the said allegeance of the cause of the assignation to be proven by the assignee's own oath, notwithstanding of the statute; but that part anent the debt owing by Irvine to the creditors, being proven by writ, they found the rest of the allegeance, anent the promise and payment made by the assignee, might be proven by the saids two creditors their declarations, otherwise the Lords would prefer the arrester, whose diligence they found sufficient, consisting of the foresaid obligation registrate, and preceding charge of horning, albeit the denounciation was not execute, nor followed thereupon.
Act. Nicolson, jun. et sen.Alt. Hope et Person.Clerk, Gibson.
Durie, p. 48.
