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Scottish Court of Session Decisions >>
Nisbet v Williamson, Foulis, and Nisbet. [1642] Mor 2774 (22 June 1642)
URL: http://www.bailii.org/scot/cases/ScotCS/1642/Mor0702774-022.html Cite as:
[1642] Mor 2774
An assignation intimated before arrestment is preferable.
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In a triple poinding, Foulis being debtor to Nisbet in a sum, for which the said Foulis being charged by another Foulis, assignee to the said Nisbet; and Nisbet compearing as another of his creditors, who had arrested the sum in Foulis's hands, for satisfying of the debt owing to them by their common debtor; and Williamson compearing as another of the said common debtor's creditors; the assignee claiming preference to the arrester's creditors of the common debtors, in this sum controvsrted, because he was made assignee before these other parties arrestments, and had done diligence before them, the common debtor being his lawful debtor, as is confest by him in his assignation; and the arresters answering, That they should be preferred to the assignee, seeing the assignation was made by a bankrupt in meditatione fugæ, there being no debt which the assignee can instruct was owing to him; likeas, he was then the cedent's servant, and so presumed a confident person; and the assignee opponing his assignation thereto; the Lords preferred the assignee to the arresters, the assignee giving his oath that the cedent was his true debtor the time of the assignation, in as great sums as that money assigned; and he giving so his oath, the Lords found no necessity, that the assignee should be holden to qualify by any other writ, that the cedent was his debtor, in respect of the act of Parliament, which admits that probation by the parties oath; for, as when any party buys lands, or goods, from any person who becomes bankrupt, the alienation cannot fall, albeit the buyer cannot instruct, by a preceding writ, that the seller was his debtor in any sums of money, the alienation being done bona fide; even so in this case.
Clerk, Hay.
Fol. Dic. v. 1. p. 178. Durie, p. 895.
