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Scottish Court of Session Decisions >>
Smith v Hepburn and Barclay. [1637] Mor 2804 (2 March 1637)
URL: http://www.bailii.org/scot/cases/ScotCS/1637/Mor0702804-046.html Cite as:
[1637] Mor 2804
Assignation intimated, preferred to a posterior comprising, although the denunciation was made before intimation of the assignation; because a denunciation does not affect the sum, nor make it so real, but that the assignee may effectually perfect his intimation thereafter.
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One Barclay having made Geills Smith assignee to a bond of money addebted to him, after which assignation, one Hepburn, creditor to Barclay, having denounced this bond to be comprised; after which denunciation, the prior assignee intents summons against the debtor of the sum assigned for the payment thereof to him as assignee, which he alleged to be a sufficient intimation, and whereby he craved preference to the compriser, who, although he had denounced before his said intimation, yet seeing he was assigned long before, and had summoned the debtor assigned, which was his intimation, before the completing of the comprising, his prior intimation, before the comprising, and prior assignation, before the denunciation, ought to give him preference; even as if one had acquired an heritable disposition of his debtor's lands, if any other creditor had thereafter denounced these lands to be comprised, before he had perfected charter and sasine upon that prior disposition, the said denunciation and comprising following thereon, would never have preferred him to the said prior disposition, and charter and sasine perfected thereafter. The Lords preferred the prior assignee, being a lawful creditor, albeit a conjunct person, to the said posterior compriser; and found the denunciation made by the compriser before the intimation of the assignation, was no just cause to give the compriser preference to the assignee, but sustained the said assignation, although intimate after the denunciation, which denunciation, the Lords found did not affect the sum to the denouncer, nor made it to be so real, but that notwithstanding thereof, the assignee might perfect his intimation effectually thereafter; and yet an arrestment after assignation will be preferred to that assignation, if not intimate before.
