Subject_1 ASSIGNATION. Subject_2 Intimation by what equivalents suppliable.
The Faculty of Advocates v. Sir Robert Dickson
Date: 25 July 1718 Case No. No 72.
A communing with a debtor was found not to supply the want of intimation; promise of payment not being alleged.
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The Faculty of advocates, as assignees to Mr Matthew M'Kell, having charged Sir Robert Dickson upon his bond; he suspended, and produced certain receipts granted by the cedent, whereof he craved deduction.
It was alleged: That the receipts wanted writers name and witnesses; and though they be instructed holograph, they could not prove their dates.
It was answered: He offered to prove, that they were holograph, and of the true date they bear, by the cedent's oath; which he contended was receiveable against the assignees the chargers; because he had rendered the matter litigious before intimation of the assignation.
It was replied: That there being a communing betwixt the Faculty and Sir Robert, upon the subject of the assignation, and these payments, in order to a transaction, Sir Robert took the advantage to raise a process before intimation, which can afford him no advantage; because it was a point of civility in the Faculty, not to intimate or charge, but to acquaint him in the discreetest manner of an onerous right, in order to obtain payment, and then Sir Robert entered as fairly into a communing, and, taking the advantage of a delay, did execute the summons; so that the precise question is, Whether he was in mala fide so to do? The chargers admit, that private knowledge does not prejudge the debtor, or take off the necessity of intimation, and that a second assignee or an arrester would have been preferable; but do contend, that Sir Robert having entered into a communing, was in mala fide to take the advantage.
It was duplied: That an assignation not intimated was incompleat; and the suspender was in bona fide sibi vigilare; he had made real and true payment to the cedent, and it was but just to use all lawful means to obtain allowance thereof; and adduced several decisions, the last of November 1622, Murray contra Durham, No 56. p. 855.; 15th July 1624, Adamson contra Mitchel, No 61. p. 859.; and 14th March 1026, Laird of Westraw against Williamson, No 62. p.859.
It was triplied: That none of the decisions did meet this case; and albeit private knowledge does not put the debtor in mala fide, yet an assignation may be compleated, without a formal intimation, No 63. p. 860. where an assignee having writ a letter to the cedent, and having got his answer, was preferred to an arrester; and 11th December 1674, Home and Elphihgston contra Murray, No 66. p. 863. a promise of payment was found suffcient.
It was quadruplied: An intimation cannot be supplied without a document in writ, or at least a promise of payment upon a communing.
‘The Lords found a communing did not supply the want of intimation, and no promise of payment being alleged, the suspender was in bona fide to render the matter litigious.’
