Subject_1 ASSIGNATION. Subject_2 Intimation by what equivalents suppliable.
Ogilvie v. Ogilvie
1681.
December. Case No. No 68.
A disposition to a Lady's jointure, found sufficiently intimated, so as to exclude an arrester, that either the tenants were cited at the assignee's instance, to pay to him, or the disposition was produced in the Baron Court, and intimated to the tenants, although the decree given on it, was afterwards turned into a libel.
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The Lady Airly having disponed her liferent to Sir David Ogilvie her son, and he thereupon having taken out an decreet against the tenants in an Baron Court; which being suspended upon double poinding, there was compearance made for Thomas Ogilvie of Logie, who craved to be preferred upon the ground, That he having pursued the Lady for a sum due by her, he did arrest the rents in the tenants hands upon the dependence; which having taken effect by a sentence, he had raised a summons to make arrested goods furthcoming. Answered for Sir David, That he ought to be preferred, because his mother had granted a disposition to him of her liferent, for onerous causes, long prior to Logie's arrestment, which was produced and intimate to the tenants when the decreet was obtained before the Baron Court; and accordingly they had actually made payment to him of their rents. Replied, That the decreet being turned in a libel upon several informalities, it was null quoad omnes effectus; and so could not be sustained to have the effect of an intimation of Sir David's dsposition; and the tenants were in mala fide to make payment to Sir David, after Logie's arrestment. Duplied, That albeit the decreet was turned in a libel, yet the disposition being produced in Court, it was a sufficient intimation to the tenants; and, therefore, they did warrantably make payment of their rents to Sir David.——The Lords preferred Sir David Ogilvie upon his disposition, as being sufficiently intimate, he proving either the tenants were cited at his instance, to make payment to him of their rents, or that the disposition was produced in the Baron Court, and intimate to the tenants.
Fol. Dic. v. 1. p. 65. Sir P. Home, MS. v. 1. No 23.
