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Captain Francis Charteris and Mr Patrick Middleton v Sir Robert Sinclair of Stevenstown. [1707] Mor 2876 (27 November 1707)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Mor0702876-092.html Cite as:
[1707] Mor 2876
Captain Francis Charteris and Mr Patrick Middleton v. Sir Robert Sinclair of Stevenstown
Date: 27 November 1707 Case No. No 92.
In a competition between assignations and a bond containing a corroboration of an assignation, the bond, being prior, was preferred, as the debtor subscribed it; which was considered to be equivalent to intimation.
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This was a competition about the Lady Dalhousie's liferent annuity. Charteris and Middleton, as creditors to my Lord Bellenden, her second husband, had formal assignations thereto, duly intimated. Sir Robert Sinclair produced a bond granted to him by the Lord Ballantyne and Earl of Dalhousie, containing a corroboration of an assignation to my Lady's jointure; it was objected against this by the other creditors, that they behoved to be preferred, because his assignation was not intimated, and theirs were. Answered, It needed no other intimation but Dalhousie's signing the bond; for, to whom were they obliged to intimate it, except to him? and that was sufficently supplied by his being obligant in the bond and assignation. Answered, Private knowledge is not equivalent to an assignation, but it must be a legal one, which can only he by a notary and instrument, that being an essential solemnity to complete assignations, as was found, Durie, p. 128. 15th June 1624, Adamson against M'Mitchell, No 61. p. 859. 2do, Though the assignation be in eodem corpore with the bond, yet Dalhousie was not concorned in the assigning paro; that belonged to Ballantyne to look to, and therefore it is to be presumed he regarded only the bond; and not the assignation, as was found in a parallel case, the last of November 1622, Sir John Murray contra Durham, No 56. p. 855. 3tio Dalhousie was not the sole party to whom it should have been intimated, but the tenants who pay it, were also concerned, as Stair insinuates, tit. Assignations, §. 8. Duplied, Legal knowledge of an assignation may be sundry ways inferred, besides an intimation; such as, by writing a missive letter, or paying a year's annualrent; and the subscribing of an assignation is as strong as any these cases. 2do, Though a witness is not bound to know the contents of a writ, yet a party obligant is bound to know what he subscribes. The Lords preferred Sir Robert Sinclair, and found there was no necessity of any other intimation, except Dalhousie's subscribing the writ, which sufficiently supplied it. See Assignation.
