Subject_1 ASSIGNATION. Subject_2 Intimation by what equivalents suppliable.
Alexander Johnstone v. John Spevin
1682.
March. Case No. No 69.
A discharge which contained a narrative, mentioning an assignation, was found, in a competition, not equivalent to intimation.
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One having assigned a bond with the bygone annualrents, and afterwards granted a discharge, by two notaries, of some of these annualrents that had been truly paid before the assignation, though not discharged before intimation of the assignation, which was subscribed by one notary, at the date, and by another some months after the discharge.
It was alleged for the assignee, in a competition, That, though his assignation be not formally intimated, the narration of the assignation in the discharge is equivalent to an intimation. 2do, The discharge acknowledging the assignation, though it had but one notary, as it had two, is equivalent to the cedent's oath, that he gave command to the notary, which supplies the want of the other notary; and, being in gnœmio of the discharge, is as good as if it had been acknowledged in writ before the granting of the discharge.
Answered: Intimation in a competition of creditors must be formal by instrument, which the narrative of the discharge is not equivalent to; nor does the narration of the assignation supply the legal solemnities. 2do, The debtor, who received the discharge, being truly creditor for an onerous cause, upon the warrandice thereof, would have got the cedent's oath, the assignation being for love and favour; and the assignation is reducible on the act of Parliament 1621, as in fraudem creditor is.
The Lords found the assignation was not validly intimate, and preferred the debtor on that head, without giving answer to the other points.
