Scottish Court of Session Decisions

Subject_1 ASSIGNATION.
Subject_2 What rights are established by Assignation without the necessity of intimation.

Earl of Argyle
v.
Lord M'donald

Date: 14 December 1676
Case No. No 35.

A disposition of the superiority to the vassal himself, implies an assignation, and needs no intimation.

Click here to view a pdf copy of this documet : PDF Copy

The Earl of Argyle having purchased the superiority of Knodyeer from Lochnell, he pursues a reduction of M'Donald's right, who holds the same of Lochnell, and now of Argyle; and M'Donald having alleged, that Argyle was obliged to relieve Lochnell of the disposition of that superiority, that he had formerly made to M'Donald; the allegeance was found relevant; and M'Donald's oath of calumny being craved thereupon, he failed to compear, and thereupon decreet of reduction was pronounced and extracted. M'Donald does now pursue reduction of that decreet, and offers to give his oath of calumny, and thereupon craves to be reponed to his defence, and so have a term assigned, and an incident for obtaining the writ out of Lochnell's hand. The pursuer answered, That he was willing to repone the defender to his oath of calumny, and to his defence, if instantly verified: Otherwise he adhered to his decreet, which being in foro upon certification, it was as strong as if a terra had been assigned to prove, and M'Donald had succumbed, though there were but neglect: But here was contumacy, that being present in town, he did not depone, and hath not any excuse, the decreet being in the midst of the Session.

The Lords reponed M'Donald to his oath of calumny, but refused to give a new term to prove, or any diligence, the intimacy betwixt M'Donald and Lochnell being notour: But if M'Donald should depone that he was not mailer of the bond at present;——The Lords superseded the extract till the first day of February, that if any such bond were produced betwixt and then, it might be received.

M'Donald further alleged, That his feu could not be reduced for not payment of the feu-duty, because he produces a right to the superiority from Lochnell, the common author; which comprehending a disposition of all right, is equivalent to a discharge, or to an assignation to the feu-duties, which being granted to the debtor himself, needs no intimation; so that albeit the pursuer being first insest, hath right to the superiority; yet the defender's disposition of the superiority secures him as to the bygones before the pursuer's infeftment. It was answered, That the right of superiority carrieth therewith, without any special right, all the casualties of superiority, though fallen before the right; and therefore neither feu-duties, nor other casualties, fall to executors, but to the heir, unless they be separate actually by a decreet, innovating their nature, and turning them into a liquid debt.

The Lords found, That albeit the superiority carries the right of all casualties, which are not separate before the disposition of the superiority; yet the same may be separate, not only by a decreet, but by an assignation intimate; and found the disposition of the superiority to the vassal himself to imply an assignation, which needed no intimation. (See Implied Assignation.)

Fol. Dic. v. 1. p. 63. Stair, v. 2. p. 478.