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Scottish Court of Session Decisions >>
Wallace v Edgar. [1663] Mor 837 (22 January 1663)
URL: http://www.bailii.org/scot/cases/ScotCS/1663/Mor0200837-026.html Cite as:
[1663] Mor 837
Subject_1 ASSIGNATION. Subject_2 Whether Assignation not intimated denudes.
Wallace v. Edgar
Date: 22 January 1663 Case No. No 26.
The cedent is not denuded by his assignation without intimation; and intimation cannot be considered barely as giving preference in competition; but as a step of diligence necessary to complete the assignee's right.
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James Wallace, as assignee by James Scot, to a decreet obtained against John Edgar in Dumfries, having charged thereupon, Edgar suspends and alleges compensation, upon debts due by Scot, the cedent to the suspender, before the intimation of his assignation; and, therefore, according to the ordinary course, debts due by the cedent, before intimation, are relevant against the assignee, and condescends upon several bonds and decreets against the cedent, assigned to the suspender, before the charger's intimation. The suspender answered, That albeit any debt due by the cedent to the debtor, before intimation, will be relevant to compense against the assignee; yet that will not extend to sums assigned to the debtor, before the charger's assignation, unless that assignation had been intimate, before the charger's intimation, because the assignation only doth not constitute the suspender creditor, or the cedent debtor, until it be intimate; and so there being no debitum and creditum, before the intimation, there can be no compensation, which is contributio debiti et crediti. The suspender answered, That the assignation constituted the right, and the creditum; but the intimation was only necessary in case or competition of other assignees, and he needed not intimate to Scot, quia intus habet, in respect Scot was owing him as much.
The Lords found no compensation, unless the suspender had intimate his assignation to the cedent, and so had constitute him his debtor, before the cedent was denuded, by the charger's assignation and intimation. (See Compinsation and Retention.)
