Assignation to a creditor of as much of the first and readiest of the rents of the cedent's lands, that should happen to be due to him at the time of his decease, as would satisfy and pay the sum of L.1400 Sterling, was found to be a general assignation, and as such would give no preference without a confirmation.
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The Duke of Hamilton, executor confirmed as nearest of kin to his father, raised a process of multiplepoinding against his father's creditors, wherein compearance was made for Sir James Gray and Edward Callendar, whose respective interests stood thus: Edward Callendar was creditor to the late Duke in L. 900 Sterling, for which he had obtained a decreet against the present Duke, as executor confirmed before the Commissaries of Edinburgh. Sir James Gray was creditor to the late Duke in L. 1400 Sterling, and, for his further security, obtained an assignation from him, “Of as much of the first, best, and readiest of the rests of the rents of his lands and estate in Scotland, that should happen to be due to him the time of his decease; and in and to as much of the first and readiest of his hail moveables, goods, gear, debts, sums of money, and others whatsoever, that should happen to pertain and belong to him the time foresaid, as would completely satisfy and pay the said sum.” This general assignation was intimated to Mr Crawford, then factor on the Duke's estate, in March 1714, some, time after the Duke's death, but long prior to this Duke's confirmation.
Sir James craved preference upon his assignation, which being the first completed right, took the subject out e medio.
It was objected for Mr Callendar; That this being a general assignation, by the act 26th, Parl. 1690, expressly needs confirmation. It was answered, That as to the rents of the Duks's estate in Scotland, due at the time of his decease, the assignation was special, Sir James being assigned to the special sum of L. 1400, out of the first and readiest of these rents; and therefore, as to these, he ought to be preferred. And it was contended, that there is the same reason why this assignation should be sustained without confirmation, as any other special assignation whatever. It seems, indeed, the great care of our legislature that the goods of defuncts be not embezzled; and matters have been ordered so distinctly, that defunct's goods cannot be intromitted with, but that there shall be a clear charge against the intromitter. This, if it did not introduce, has occasioned the continuance of confirmation in general dispositions and assignations, which otherwise might be completed in the disponee or assignee's person, by possession in moveables and intimation in debts, the same way as an adjudication or disposition of heritage is completed by infeftment after the debtor or disponer's death. In this view there can be no necessity of confirming this assignation, in so far as it relates to the bygone rents; because the assignee cannot possibly intromit with any parcel of these rents, without, at the same time, making up a distinct charge against himself, by his receipts of payments made to him by the factor, which the factor must keep for his own exoneration, and which always will remain a standing charge against the assignee.
It was replied, That whatever may be argued, this is certainly a general clause; there is no particular debtor mentioned, nor special sum due, it being even uncertain, whether any should happen to be due or not; and so falls both under the meaning and words of the act of Parliament.
‘The Lords found Sir James could have no preference upon his assignation.’
Fol. Dic. v. 1. p. 338. Rem. Dec. v. 1. No 38. p. 77.
