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Hume v Hume. [1632] Mor 848 (21 July 1632)
URL: http://www.bailii.org/scot/cases/ScotCS/1632/Mor0200848-047.html Cite as:
[1632] Mor 848
Subject_1 ASSIGNATION. Subject_2 Formalities of an Instrument of Intimation.
Hume v. Hume
Date: 21 July 1632 Case No. No 47.
Intimation at the market-cross of the head burgh, or even at the dwelling-house, if not personally, does not put the party in male fide to pay.
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The deceased Samuel Hume being decerned by a decreet-arbitral, to pay to his mother yearly, a yearly duty of victual, whereto she having made one her assignee; which assignation being intimate at the market-cross of the head burgh of the sheriffdom, where the party dwelt, and within the which the lands lay, for which the victual should be paid: The assignee desiring this decreet-arbitral, the same being registrate, to be transferred in him active, and in the heir of Samuel Hume, party obliged to pay the said victual, passive, who compeared, and alleged, That the mother to whom the said victual was payable, had discharged to the said Samuel that decreet, and granted her satisfied of that clause concerning the payment of the victual, and had exonered him thereof; and which, albeit it was confest to be done after the assignation and intimation thereof, yet the said Samuel might lawfully do it, notwithstanding thereof, seeing the said intimation was never lawfully made to him; and the assignation and intimation preceding, made at the market-cross, could not put him in mala fide, to pay his own just creditrix, and to take exoneration from her. This allegeance was found relevant, notwithstanding of the preceding assignation and intimation, which the debtor was not holden to know, not being made to himself: For, if the intimation had been made at the debtor's dwelling-house, it might have remained as obscure to him and unknown, as the intimation made at the market-cross; therefore it would be considered, if such intimations at parties dwelling houses, be sufficient against them, or else they must be made personally to them. (See Bona Fide payment.)
Act. Mowat & Hepburn.Alt. Craig.Clerk, Gibson.
Durie, p. 649.
