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Scottish Court of Session Decisions >>
The Creditors of John Moonie, Merchant in Calton, v Hugh Broomfield. [1736] Mor 12471 (3 December 1736)
URL: http://www.bailii.org/scot/cases/ScotCS/1736/Mor2912471-314.html Cite as:
[1736] Mor 12471
Oath of the Debtor, if good against his Creditors?
The Creditors of John Moonie, Merchant in Calton, v. Hugh Broomfield
Date: 3 December 1736 Case No. No 314.
An arrestee may prove any ground of compensation by the common debtor's oath, though bankrupt, that was liquid before the laying on the arrestment.
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The said Broomfield being debtor to Moonie, both by bond and bill, and likewise in an open account, he, in payment of these debts, advanced money, and furnished goods to Moonie; who having turned bankrupt, arrestments were laid by his creditors in Broomfield's hands; and, in the forthcoming thereon, the debt being referred to his oath, he acknowledged that he owed to the common debtor money, by bond and bill, and likewise an open account to an uncertain extent; but added, that, before the arrestments, he had made payments and furnishings to Moonie, which, by an account stated betwixt them after the bankruptcy, reduced the balance to so much:
Whereupon the arresters pleaded; That the oath was probative against the defender, in so far as he has owned that he owed so much by bond and bill, &c.; but, with respect to the quality adjected thereto, of the payments and furnishing made to him by Moonie, it was extrinsic, and not competent for him to depone thereon; as it neither was, nor could be, referred to him, the reference being in common form, scil. what he was owing to the common debtor at the time of the arrestment; and, if his own oath, without some other instruction, were sufficient to extinguish the bond, it would be in the power of any person, to whose oath a debt was referred, to create another by a simple averment to balance it.
Answered for the defender; That having referred the extent of the debt to his oath, and he having accordingly sworn, that the balance was only so much at the time of the arrestment, there was an end of the question; so that he could not be liable for any more. But, 2do, If needful, he offers to prove the verity of the furnishings, and money-payments by Moonie's oath.
Replied for the arresters; That, in effect, they are legal assignees; and, as voluntary ones cannot be hurt by the oath of the cedent, so neither ought they; e, g. If Moonie had assigned the defender's bond, it would not have been competent for him to object articles of compensation probable by Moonie's oath; he behoved to answer the assignee, and operate payment of his counter claim the best way he could.
Duplied; There is a great difference betwixt an onerous assignee or indorsee, and an arrester; for the first purchases the right, not so much on the faith of the cedent, as because he sees no part of the bond or bill marked received on the deed itself; but an arrester, who tries to affect subjects where he can find them, must take them just tantum et tale as they are, under all the burdens with which they belong to his debtor; therefore his oath must be as competent against the arresters as it would be if the question were with himself; neither does it make any difference that he is bankrupt, that not inferring an infamia of any kind.
The Lords found, That he could prove, by the common debtor's oath, any ground of compensation that was liquid before laying on the arrestment.
