Scottish Court of Session Decisions

Subject_1 ASSIGNATION.
Subject_2 Intimation by what equivalents suppliable.

L Westraw
v.
Williamson & Carmichael

Date: 14 March 1626
Case No. No 62.

The debtor found not in mala fide to pay, although he had private knowledge of the assignation, there being no formal intimation.

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Alison Nisbet having recovered decreet against Marion Williamson and James Carmichael, her spouse, for payment of certain sums of money, she constitute James Johnston of Westraw, assignee thereto, with power to him, either to charge for the funis in her name, or in his own name as assignee. Whereupon charges being execute in the cedent's name, the Lords found the reason of suspension relevant against the assignee, bearing, that the saids persons, suspenders, who were charged, had made payment or the sums, wherein they were decerned, to the cedent, before any intimation of the assignation: Which payment made to the cedent before any intimation, the Lords found sufficient to liberate them at the hands of the assignee, notwithstanding that the assignee alleged, that the suspenders knew that the Laird of Westraw was made assignee before their payment, and that they offered to tranfact with him thereanent, so that they could never be repute to be in bona fide in reporting of that discharge, as done before intimation of the assignation, the same being known to them, as said is: Likeas, the assignee alleged, That he had lawfully execute inhibition upon the said assignation, before the obtaining of the said discharge, by the which the suspenders are constitute in mala fide to have made payment to the cedent, since the time of the executing of the said inhibition, which was raised upon the said assignation, whereby all the lieges were constitute in mala fide to do any deed, which might make the said assignation ineffectual; notwithstanding whereof, the payment made, and discharge reported, before any lawful intimation of the assignation was sustained, seeing the Lords found, that the knowledge of the assignation put not the defenders in mala fide to pay the cedent, which ought to have been intimate to them, after a legal manner, and so made known to them legally and the inhibition not being specifice execute, and intimate to the suspenders, could not be repute an intimation, especially seeing also that inhibitions properly had force against immoveables, and did not strike upon this subject controverted, And therefore the letters were suspended simpliciter.

Act. Oliphant. Alt. —— Fol. Dic. v. 1. p. 64. Durie, p. 192.