Subject_1 ASSIGNATION. Subject_2 Intimation by what equivalents suppliable.
Leith v. Garden
Date: 16 February 1703 Case No. No 70.
An assignee wrote to the debtor, and shewed him his assignation. The debtor, nevertheless, paid to the cedent, The payment found unwarrantable, there being no third parties in the field.
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The Laird of Troup being addebted to Anachy in 197 merks by ticket, this is assigned to Leith of Leith-hall, who writes a letter to Troup, signifying his right, and afterwards shows him the assignation, but does not legally intimate it by a notary and instrument. Troup being pursued by the assignee, produces a discharge from Anachy, the cedent: Against which it was objected, That he was in mala fide to pay the cedent, and rely on his discharge, after he had shewed him his right by assignation.—Answered, Private knowledge non relevat, law having fixed on the solemnity of an intimation by way of instrument, and intimations not made in that manner are not to be regarded; as was decided 30th November 1622, Durham against the Lady Winton, No 56. p. 855.; 15th June 1624, Adamson contra Macmitchel, No 61. p. 859.; and 14th March 1626, Nisbet and Williamson, No 62. p. 859.—Replied, That holds in a competition betwixt co-creditors, as where two assignees, or an arrester and assignee are competing, there no intimation is sustained, but what is made by form of instrument; but here there is no competition, but the question singly dated betwixt the assignee and the debtor, who, by collusion, goes and agrees with the cedent, after the assignation was shewed to him; and, on getting an ease, pays and recovers his discharge.——The Lords found the payment unwarrantable, and that it could not defend him against the assignee, though it was not legally intimated, there being no co-creditor in campo.
Fol. Dic. v. 1. p. 64. Fountainhall, v. 2. p. 180.
