If probative of its Onerous Cause against Creditors and Donatars of Escheat.
Auld v. Smith
Date: 29 January 1629 Case No. No 437.
An assignation by a bankrupt to his brother, bearing to be for security of debts owing him, found reducible, unless the assignee would instruct otherwise than by his own oath that he was creditor.
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One being made assignee to a debt owing to the cedent, and thereafter the same debt being arrested by another creditor to the cedent, the said cedent being bankrupt, and the dispute being betwixt the arrester and the assignee, the assignee craving preference as anterior to the arrester, and the assignation being made for debts owing by the cedent, and for satisfying some others of the cedent's true creditors; it was found, That if the assignee could not instruct by writ that the cedent was, the time of the assignation, debtor to himself, that the assignation could not be sustained, and it was not found sufficient probation of the debt, that the assignee offered to give his own oath thereon, alleging no other probation to be required by the act of Parliament anent bankrupts; which the Lords found was not sufficient, but was found ought to be proved otherwise than by the assignee's oath, specially because there was evident presumption of fraud, qualified betwixt the said assignee and the cedent, who were confident persons, being two brethren, and there were some circumstances qualified, whereby it appeared that there was simulation betwixt them, and consequently that the assignee could not dispone the same by making election to pay such of the cedent's creditors as he pleased, and thereby to prejudge another creditor, and which other having arrested and comprised that same debt assigned, albeit after the assignee was denuded in favours of other creditors whose debts were true and instructed, yet the said creditor compriser was preferred as said is, because of the defect in the assignation made by the one brother to the other, who could not shew any debt owing to him for which it was made.
Clerk, Gibson.
Fol. Dic. v. 2. p. 252. Durie, p. 418.
