Oath of the Debtor, if good against his Creditors?
Elphinston v. Hume and the Laird of Stenhope
Date: 11 December 1674 Case No. No 305.
The oath of an arrestee not good against an arrester.
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The Laird of Stenhope being debtor to Captain Johnston's son, as executor confirmed to Captain Johnston, assigns the same to Mr James Elphinston, who having shown the assignation to Stenhope, he promised payment; and upon the assignation and promise, he obtained decreet against Stenhope before the Sheriff of the shire. George Hume having arrested the sum in Stenhope's hand to be made furthcoming for payment of a debt due to him by Johnston, obtained decreet before the Lords for making furthcoming. Stenhope suspends on double poinding; in which competition was alleged for the arrester. That he had arrested before any intimation of the assignation, and so is preferable. It was answered for the assignee, That Stenhope having accepted of the assignation, and by his promise become debtor before the arrestment, he was no more debtor to the cedent, nor could any arrestment for the cedent's debt, after he ceased to be debtor, become effectual; and if this were not sufficient, Stenhope's promise could not be loosed, seeing he had rested thereupon.
The Lords found that the acceptance of the assignation before the arrestment is relevant to prefer the assignee, but that is not probable by Stenhope's oath, but either by writ or oath of knowledge of the arrester; and if it be not so proved, they found that Stenhope was only liable in single payment, unless there had been transaction or undertaking of the hazard.
Fol. Dic. v. 2. p. 236. Stair, v. 2. p. 292.
*** Dirleton's report of this case is No 66. p. 863., voce Assignation.
*** For the same reason, as in the above case, in a special declarator of escheat the rebel's oath was not sustained against the donatar, to prove that the bond pursued for was paid before denunciation, 10th February 1663. Montgomery against Montgomery, No 5. p. 3615., voce Escheat.
