Innes v Craig
| Jurisdiction | Scotland |
| Judge | Lord Pitmilly. B. |
| Judgment Date | 22 June 1821 |
| Court | Court of Session (Inner House - Second Division) |
| Docket Number | No. 105. |
| Date | 22 June 1821 |
Lord Pitmilly. B.
83.
Competition—Creditor of Defunct.—
William Home deposited with Innes a bond in security of arrears of rent due by his son and son-in-law, tenants of Innes. No assignation, although promised, was ever granted, but Innes drew the interest on the bond for several years. After Home's death, the debtor in the bond raised a multiplepoinding, in which Innes claimed to be preferred; but he was opposed by Craig, who held an intimated assignation to the bond granted by the executor of Home, in payment, as he alleged, of rent due by Home himself, and for money advanced to the executor to pay off Home's debts. Innes then raised an action against the representatives of Home, to have it found that the bond was impledged with him, and that they were bound to assign it to him, or to relieve it by payment of the debt. This action being conjoined with the multiplepoinding, the Lord Ordinary found,1—
1. That though the representatives of Home were bound to assign the bond, yet this being now imprestable by the assignation to Craig, decree should go against them for the balance due on the bond; and,
2. In respect of Craig's assignation, and that Innes did not take any document of debt or assignation to the bond, with warrandice, during Home's life, Craig was to be preferred.
But the Court, holding Innes to be a creditor of Home, while Craig was a creditor only of the executor, altered the interlocutor, so far as it preferred Craig; found Innes entitled to be ranked on the fund in medio, and remitted to the Lord Ordinary to ascertain the extent of the claim; whether Craig was also entitled to the character of a creditor; and had, after Home's death, made advances on the assignation to pay his debts, and as to the effect thereof.2
Inne's Authorities.—3 St. 8, 71; 3 Ersk. 9, 42; Gordon, Dec. 21, 1671, (3894); Kilhead, Dec. 16, 1674, (3124); Tait, Feb. 12. 1779, (3142); Bull, Nov, 20. 1781, (3861).
(See 2 Bell, 23.)
H, as cautioner for a debt owing by another, deposited a bond due to himself with I, in security of the debt, but did not assign it. H died and his executor assigned the bond to C. Held in a competition for the contents of the bond that I, as a creditor of H, the defunct, was preferable to C, the assignee of the executor.
1 The interlocutor was in these terms :—‘Finds, that the claimant, George Craig, in virtue of the assignation in his...
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