Subject_1 ASSIGNATION. Subject_2 What rights are established by Assignation without the necessity of intimation.
Urquhart v. Barclay
Date: 6 March 1639 Case No. No 33.
Assignation of a contract of wadset was found to establish the right in the assignee's person, so as to entitle him to use requisition after the cedent's death, without any intermediate step of diligence.
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By a contract betwixt umquhile John Urquhart, tutor of Cromarty, and umquhile Barclay of Towie, the Laird of Towie, having wadset to the said John Urquhart, certain lands, bearing a clause, “That, notwithstanding of the wadset, the debtor should be obliged to pay the sum upon the requisition of 60 days;” to the which contract, the umquhile tutor makes John Urquhart, son to the Laird of Cromarty, assignee, who, according to the contract, after the decease of the tutor cedent, and also after the death of the umquhile Laird of Towie, the debtor requires the son and heir of the said debtor, he being at that time served and retoured heir, upon the said contract, to make payment, conform to the contract; which requisition is made to the said son and heir, he being then minor, and to his tutors and curators generally; which contract is thereafter registrate by the assignee, and charges raised thereupon, and suspended: In which suspension, it being questioned, that the requisition could not be sustained, being made by the assignee to the heir of the debtor, after the decease both of the creditor and debtor, and the contract then not being registrate, which not being decerned, nor sentenced, at the cedent's instance; the cedent could not, in law, make any requisition which could be effectual, before he had recovered decreet. And also, he alleged, that by no private warrant could this party have power to make requisition to the defenders tutors and curators; but he ought to have purchased letters of the Lords, giving warrant to require the minors, tutors, and curators, which not being done, the requisition cannot be sustained. These allegeances were both repelled; and the Lords found no necessity, that the contract should be registrate at the assignee's instance, before he could require, seeing it was registrate at his instance against the suspender, as heir to his father passive, after that requisition, and so, which the Lords found, might be drawn back to the requisition; and also, they found, that there was no necessity to have the Lords letters, in supplement, to warn tutors and curators; but sustained the order; and yet it is usual, in such cases, to obtain letters to warn the tutors and curators of minors; albeit it was found not necessary, or if it should be omitted, that the omission should annul the requisition. See Redemption. See Citation.
Act. Nicolson.Alt. Baird.
Fol. Dic. v. 1. p. 63. Durie, p. 878.
