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Scottish Court of Session Decisions >>
M'Gill v Hutchison. [1630] Mor 860 (22 January 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor0200860-064.html Cite as:
[1630] Mor 860
Subject_1 ASSIGNATION. Subject_2 Intimation by what equivalents suppliable.
M'Gill v. Hutchison
Date: 22 January 1630 Case No. No 64.
A letter written to the debtor by the assignee, with his answer promising payment, held equivalent to intimation.
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In a double poinding, betwixt two creditors, for a sum owing to their common debtor, by his debtor; and whereto the said debtor had made the one assignee, and which was arrested thereafter by the other creditor, who craved to be preferred to the said assignee, seeing he had affected the sum by his arrestment, and the assignation to the other party, albeit before the arrestment, yet it was not intimate; and the assignee answering, that he had done equivalent to an intimation, in so far as he had written to the common debtor's debtor, acquainting him with his assignation, and desiring him to make payment to him, who had written back to him his missive, wherein he promised to make him payment, and which missive was before the arrestment; and the other answering, That that missive was not a legal intimation, and could not be respected against him, who was a cocreditor, and had done lawful diligence to affect the money; for the said missive being a private deed, and which betwixt them might be of any date they pleased-seeing there is no means to improve the same, wanting witnesses, it may have what effect it can against the writer, but ought not to work against him, who cannot be prejudged thereby.—The Lords found, that this missive, dated before the arrestment, was as sufficient as any intimation: Therefore preferred him to the arrester; for if the writer of the missive had at that time given bond to that assignee, to pay him that sum, the arrestment thereafter would not have prejudged the assignee, and the missive was alike, wherein he had promised to pay him; but it appears not alike, for the bond behoved to have witnesses, whereby the manner of improbation was extant, which was not so in the letter, See Proof.
Clerk, Hay.
Fol. Dic. v. 1. p. 64. Durie, p. 484.The same case is thus reported by Kerse:
Intimation sustained, given by an letter written by the assignee to the debtor, and by his answer making days of payment, idq. contra tertium cessionarimn.
Kerse, MS, fol. 55.Also by Spottiswood:
James Turnbull being addebted to Captain Semple in L. 300, the Captain assigneth it to William M'Gill in Edinburgh, who, upon his assignation, acquainteth James Turnbull, the debtor, of it, and desireth payment of it conform to his assignation, without making any other legal intimation thereof. James writeth back to the assignee, that he hath no money at present, but promised to pay him at Martinmas next. Before payment, Mr John Hutchison, a creditor of Captain Semple's, arrests the same sums in James Turnbull's hands. The question falling out betwixt the assignee and the arrester, which of them should be preferred, the assignee leaned to his assignation for an onerous cause, and the debtor's letter, whereby he acknowledged the debt, and promised payment, which was equivalent to an intimation. The arrester alleged, That the assignation, without intimation, gave him no right, and the debtor's letter might prejudge himself, but none else. The Lords preferred the assignee, in respect of the assignation and letter foresaid.
