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An assignation, though intimated after an arrestment, was preferred, the arrestment being upon a dependence, and no decreet yet recovered against the common debtor.
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Mr Hugh Douglas, cautioner for Mr Andrew Lermonth, minister at Libberton, being decerned to pay the debt; the said Mr Hugh receives for his relief from Mr Andrew an assignation to certain bolls of victual, to be paid by certain tenants, off the lands of, for his stipend of the crop 1638, which was not sown on the ground the time of the assignation; and after the said assignation, The said Mr Hugh arrests the said victual in the tenant's hands, and thereupon intents action against them, to make arrested corns furthcoming: In the which action William Mitchell, another creditor of the said Mr Andrew, compears, who had arrested the same corns, and claimed to be preferred to Douglas, in respect of his anterior arrestment before the arrestment executed by Douglas; and albeit the assignation to Douglas be prior, yet the same ought not to be respected, except it had been also intimate before his, which was not done, and the arrestment made by Douglas is after his arrestment. Attour, it cannot be respected as an intimation of the assignation, but in effect is a passing from the assignation, seeing he hath arrested the corns as the cedent's corns, and not as pertaining to him as assignee, and no ways making mention of the assignation; so that it cannot be respected as an intimation of the assignation, but rather that it is a confession that the corns still pertained to the cedent; and further, the assignation can give him no right, being of corns which were not then extant, neither being sown nor growing, and of the law non entis nulla est obligatio. The Lords repelled the allegeance, and sustained the arrestment as sufficient intimation of the assignation, albeit of corns not then growing, but being for a stipend of a year ensuing, seeing the minister lived while it became due to be paid to him; especially the arrestment was sustained as a sufficient intimation against this other defender, who had not obtained as yet sentence against Mr Andrew Lermonth, constituting him his debtor, and so who could not be a just party, to claim arrested goods to be made furthcoming, before he had obtained sentence for his debt.
Act. Hope.Alt. Ellies.Clerk, Gibson.
Fol. Dic. v. 1. p. 178. Durie, p. 864.
