An assignee having neglected to intimate during the cedent's life, an executor-creditor of the defunct confirmed the subject, as still in bonis defuncti. The Lords preferred the assignee.
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In a competition betwixt the executors-creditors of Mr Thomas Ridpeth, about a sum due to Mr Thomas by bond, and by him assigned to John Hume, who not having intimate it in Mr Thomas's lifetime, did thereafter get payment of a part of the same, and a bond of corroboration for the rest thereafter;—Torwoodlie, for a debt due to him by Mr Thomas Ridpeth, confirms himself executor-creditor to Mr Thomas, and alleges, That he ought to be preferred, because the assignation made to John Hume was an incomplete right, wanting intimation; so that the sum remained in bonis of Mr Thomas Ridpeth, and that he had followed the only legal way to affect it, by confirming himself executor-creditor to Mr Thomas; and albeit the assignee may force any other executor to pay him, yet not an executor-creditor, who is executor to his own behoof for satisfying his debt.—It was answered, That the assignation, though not intimate, being a special assignation, albeit it cannot have execution by horning, yet it is the undoubted ground of an action, even after the defunct's death, against the debtor, and no executor-creditor can have right thereto.
Which the Lords found relevant, and preferred the assignee.
Fol. Dic. v. 1. p. 180. Stair, v. 1. p. 647.*** Gosford reports the same case:
In a competition betwixt John Hume and Pringle of Torwoodlie, who should have best right to a bond of 2000 merks, due by Rentoun of Billie, Hume craved preference, as being assignee made to the bond by the creditors, and payment of a part thereof, made conform; and Pringle craved to be preferred, as being executor-creditor confirmed to the creditor, who, albeit he had given an assignation to Hume, yet the same was never intimate during his lifetime; and so it remained in bonis defuncti.——The Lords preferred the assignee, and found, That an assignation, albeit not intimate during the cedent's lifetime, was not null, but the assignee might pursue the debtor after the cedent's decree; yet as to the quot due to the Bishop, the assignee was liable; and this was found in this case, in respect the assignee had intimate, by getting payment of a part of the bond before the executor-creditor was confirmed; otherwise it would have been altered.
