Anignation intimated, though not delivered, is effectual.
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In a competition betwixt M'Lurg, assignee by Boyd of Pinkell, and Blackwood, his creditor arrester; it was alleged for the assignee, That his assignation and intimation were before the arrestment.—It was answered for the arrester, That the assignation was never the assignee's delivered evident, but was retained in Pinkell, the common debtor, his hand; and that the intimation was null, being made by a person who was no notary, but known to be flagitious.—It was replied, That intimation supplies delivery, after which the assignee hath interest to force the cedent to exhibit and deliver; and though he should cancel the assignation, the assignee may prove the tenor of it, using the intimation as an adminicle, as was found in the case of Dick of Grange and Sir Laurance Oliphant*; yea in the case of Mr John Bain against Campbell†, it was found, That a debtor taking a bond in name of his creditor, though not delivered, that creditor had right to found upon it, and to force the debtor to deliver, And as to the notary's not being authorised, it was offered to be proven he was holden and repute notary, which is all the leiges can know; and though he were flagitious, the intimation may be redargued by the witnesses insert.
The Lords found the assignation being intimate before the arrestment, though not delivered, was preferable, and that the notary's being holden and repute such was sufficient.
Stair, v. 2. p. 762.
*** An assignation in trust being intimated, a conveyance to the cedent's creditor need not be intimated de novo, Stirling against Smith, 5th December 1712, Forbes p. 641. voce Trust.
