Subject_1 ASSIGNATION. Subject_2 Nature and Effect of an Assignation.
Knows v. E of Marr.
Date: 9 January 1634 Case No. No 18.
The cedent retaining possession, and the assignee taking a factory from him, found to extinguish the assignation.
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The Earl of Marr being addebted to Michael Elphingston the sum of 7000 merks, by two heritable bonds, which were apprised from the said Michael, by James Knows assignee constitute, by two of Michael's creditors: The Earl of Marr is pursued by the said James appriser, to make the said sums furthcoming. —In the action compears Thomas Bruce, provost of Stirling, for his interest, and alleges the said sum should be made furthcoming to him, because he was made assignee to the said sums, by the said Michael, and his assignation intimate, before any denunciation used by the compriser.—To which it was replied, That the assignation was null, because it was offered to be proven, that notwithstanding of the assignation, the cedent was in possession in uplisting the annualrents diverse times after the date of the said pretended assignation; and that Thomas Bruce himself had taken a factory since the said assignation, from the said Michael; and as factor, had given discharges to the Earl of the annualrent, whereby he had past from the assignation.—To which it was answered, That the assignee had given no discharges as factor, after the intimation of his assignation; and what he did before, cannot prejudge him; because his assignation was no perfect right; before it was intimate; but after the intimation became perfect.—To which is was replied, That the acceptance of a factory annihilated the assignation, and extinguished the same, and the posterior intimation could not make non ens to revive; which reply the Lords found relevant.
