Subject_1 ASSIGNATION. Subject_2 Intimation by what equivalents suppliable.
Earl of Aberdeen and Creditors of Merghiston, Competing
Date: 30 July 1729 Case No. No 73.
Found, that private notification made to a factor, which he entered in his books, was not equivalent to intimation to the debtor. But this reversed on appeal.
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In a competition betwixt a prior assignee and posterior arresters of the same sum, the assignee pleaded preference upon a private notification given to the debtor's factor, who had accordingly, by a memorandum in his compt-book, mentioned the said assignation; which memorandum was urged equivalent to a formal intimation, as inferring the debtors knowledge of the conveyance.—It was contended on the other hand by the arresters, Imo, That in point of relevancy nothing which is extrajudicial can supply an intimation, but what implies the debtor's undertaking an obligation to the assignee. 2do, In point of proof, That in competition the debtor's undertaking such obligation can only be proved by a formal writ, or by the competing arrester's oath of knowledge. 3tio, An intimation made to a factor was never reckoned equivalent as if made to the debtor himself.——The Lords found, That the private notification made to the factor, and entered in his book, is not equivalent to an intimation to the debtor; and therefore preferred the arresters.
Fol. Dic. v. 1. p. 64.
*** In this case the Lords had found, on 2d June 1729, ‘The qualifications of the notification, made to Dackmont, (the factor) and marked in his book, relevant, and proven to be equivalent to an intimation to the debtors; and therefore preferred the Earl of Aberdeen, the assignee.’
By a subsequent interlocutor, of 30th July 1729, they ‘found the qualifications of the notification made to Mr Hamilton, (the factor) and marked in his book, and other qualifications pleaded upon by the assignee, were not equivalent to an intimation to the debtors; and therefore preferred the creditors-arresters.’
The case was appealed; and the following is an extract from the Journals of the House of Lords, of their decision.
1730. April 9.
After hearing counsel upon the petition and appeal of William, Earl of Aberdeen, complaining of a sentence or decree of the Court of Session in Scotland, of the 30th of July 1729, made on the behalf of Alison Callender, widow of Mr John Buchanan, James Haliburton, Henry Guild, Andrew Dunnet, and William, Earl of March, and praying, ‘That the same may be reversed, and that the decree of the said Court of the 2d of the said July may be affirmed.’ As also upon the joint answer of the several persons above-mentioned, put into the said appeal; and due consideration had of what was offered on either side in this cause,
It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament assembled, That the said sentence or decree of the 30th of July 1729, be and is hereby reversed; and that the said decree of the 2d of the same month be, and is hereby revived and affirmed: And it is hereby further ordered, That the L. 1000 secured by the bond, in the appeal mentioned, and interest for the same from Martinmas 1725, be paid to the appellant.
For Earl of Aberdeen, Appellant, C. Talbot, R. Dundas.For Earl of March, Alison Callender, &c. Respondents, P. Yorke, D. Forbes, C. Areskine.
Journals of the House of Lords, p. 530.
