Execution of letters of intimation at the market-cross of Edinburgh, and pier and shore of Leith, not bearing production of the assignation intimated, found null.
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There being a competition betwixt George Watson, a creditor to Sir Robert Forbes and John Monro, donatar to his escheat, about a sum due to the said Sir Robert; George Watson craves to be preferred, because he has an assignation duly intimate to the debtors by letters of supplement at the market-cross of Edinburgh, pier and shore of Leith, prior to the denunciation and declarator.
It was alleged for the donatar; That the intimation was null, because the execution did not bear production of the assignation intimate, but only, in general, that intimation was made by virtue of, and conform to, the letters of supplement in all points.
The Lords having remitted to the Ordinary to inquire, if, by the custom, executions of letters of intimation are in use to express production of the assignation, and to report;
For clearing this point, there is produced a declaration, signed by a great many notaries and messengers of good reputation and experience, declaring, that, by the constant practice, executions do bear production of the assignation intimated; and thereupon it was alleged, that the execution of Watson's intimation was null.
It was answered for Watson; There is little regard to be had to impetrated declarations of that sort; but the matter ought to be determined, with regard to the importance of these letters of intimation, which of themselves are sufficient; because they proceed upon a bill to the Lords, which bill bears production of the assignation, and the deliverance runs in these terms, “ Fiat ut petitur, because the Lords have seen the assignation;” and letters passing the Signet on that bill, there is no further need of a second production of the assignation at the market-cross and pier and shore, which would be but an empty formality.
It was replied; That bills for letters of intimation pass, of course, periculo petentis; and the Lords are not in use to consider the instructions; neither are the clerks of the bills very careful to see that these instructions are really produced. 2do, The only use of letters of intimation is, in regard that the party having no residence within Scotland, there can be no intimation made personally, or at the party's dwelling-house; and the letters are only to supply the want of a domicile, that the market-cross and pier and shore shall be reckoned equal to an intimation personally, or at a dwelling-house; so that all other formalities requisite in intimations to parties in Scotland, are to be observed in the execution of letters of intimation, both in reason and by practice.
The Lords found the execution of the intimation, not bearing the production of the assignation, null.
Fol. Dic. v. 1. p. 259. Dalrymple, No 125. p. 174.
