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Scottish Court of Session Decisions >>
Carmichael v Bertram. [1701] Mor 8236 (4 July 1701)
URL: http://www.bailii.org/scot/cases/ScotCS/1701/Mor2008236-004.html Cite as:
[1701] Mor 8236
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In the competition betwixt Walter Carmichael in Easter Anniston and Alexander Bertram of Nisbet, two assignees to one debt; Carmichael had the first assignation, but last intimated at the market-cross of Edinburgh, and pier and shore of Leith, in regard the debtor was out of the kingdom; Bertram, though the last assignee, had intimated first at the cross and pier, only he had not raised letters of supplement. 2do, He had produced his assignation in a process raised in his cedent's name, which was equivalent to a legal intimation, and this also before Carmichael's intimation. It was objected by Walter Carmichael, That he had the only formal intimation, and that Bertram's was null; for, 1mo, It wanted a supplement, and none without the kingdom could be cited or certiorate without the warrant and authority of the King's signet-letters, to be executed at Edinburgh and Leith, as the communis patria of all Scotsmen. And as for producing it in the clerk's hands, that can as little have the effect of a legal intimation; 1mo, Because the defender being absent, and not compearing in that action, it can never certiorate him; 2do, It does not crave the decreet to go out in his name as assignee, but in his cedent's name. The Lords preferred Carmichael's intimation, though posterior, and found the other informal and null.
Fol. Dic. v. 1. p. 547. Fountainhall, v. 2. p. 117.
