Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Geills Smith
v.
Patrick Hepburn

Date: 2 March 1637

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George Barclay, for a just debt, assigns a bond to his mother, Geills Smith. Patrick Hepburn, executor to the said George, denounces the said bond to be comprised; after the date of the said assignation, but before the intimation thereof; and, after the intimation of the said assignation, comprises the said bond. The assignee contends, That she has best right to the said bond, as having an assignation thereto for a true debt before the debt was contracted to Patrick Hepburn; and, before any comprising was deduced at his instance, the assignation was lawfully intimated to George Barclay's debtors. It was alleged by Patrick Hepburn, That he has best right to the bond, by reason he had denounced the same to be comprised, before any intimation of the assignation: and seeing an assignation unintimated hinders not the cedent to make another assignation; which, being intimated first, will be preferred to the first assignation; Patrick Hepburn having, by his denunciation, begun the process of his comprising, and thereby coming in place of the cedent, no posterior intimation could prejudge him. The Lords preferred the assignee.

2d MS. Page 38.