Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Alexander Ross v. Andrew Balfour
1696.
July2,and
Nov.27.
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July 2—Arbruchell reported Alexander Ross, son to Kilravock, against Mr Andrew Balfour, Writer to the Signet; being a competition between two assignees upon their respective intimations. Alexander Ross contended his was first intimated to the debtor, by his paying a year's annualrent to the cedent, whose liferent of the sum was reserved in the body of the assignation; and the cedent's discharge to the debtor made express mention of this assignation; which was equivalent to an intimation.
Answered by Mr Balfour—Though my assignation be posterior, yet it was first legally intimated by way of instrument; and the discharge aforesaid cannot amount to a legal intimation; yea, private knowledge has not been sustained as sufficient;—Dury, ult. November 1622, Murray; 15th June 1624, Adamson; March 14, 1626, Wishaw. 2do. This assignation is inter conjunctas personas, viz, an aunt and a nephew; and so is very suspect.
Replied,—Though cessio nominis does not, in rigore juris, denude the cedent of the actio directa ossibus ejus inhœrens; yet if the debtor be any way certioriorated of the assignee's right, that is sufficient to put him in mala fide;—l. 3. C. de Novat. l. ult. D. de Transact.
The Lords, before answer, allowed the Ordinary to try if the first assignation was a delivered evident, or retained by the cedent; though she had an interest to do so, in respect it bore a reservation of her liferent; but being among so near relations, this was not so much regarded: as also to try if the second assignation was onerous or gratuitous; for if it was not onerous, then it was a contravention of the warrandice by which the cedent stood debtor to the first assignee; as was found, 15th July 1675, Alexander against Lundies.
Vol. I. Page 724.
November 27.—Arbruchel reported again the competition between Mr Andrew Balfour and Ross, mentioned 2d July 1696; and the Lords now prefer Mr Andrew, the last assignee, not so much because he had the first legal intimation by a notary's instrument, (for the Lords agreed there might be several other legal ways of intimating and completing assignations beside that,) but also in respect of the circumstances, that the second was onerous, and the first inter conjunctas personas, an aunt and a nephew; and there appeared some design of fraud in cheating Mr Balfour.
