the preceding clauses. If, however, the whole cannot be delivered, or if any of those delivered contain matter beyond the debt assigned, the clause will show with whom, respectively, the custody of the writs common to both parties is to remain, and will contain an obligation on the cedent, or on the assignee, as the case may be, to make the writs not delivered, or those delivered and which relate to more than the subject of the assignation, furthcoming when required by the one party or the other. In such case, there must be a correct specification of the writs to which the obligation for exhibition relates. In general, it will be advisable, when the separate interests in any deeds are of importance, to register such deeds for preservation. The writs, however, relating exclusively to the debt assigned, belong to the assignee, who is entitled to possession of them, without any express obligation to deliver them up to him;1 and, so far as the writs assigned contain other matter, the cedent (or assignee, as the case may be) is clearly entitled to exhibition on necessary occasions, without special obligation to that effect.2 CLAUSE. The clause of registration is for preservation, or, if necessary, execu- REGISTRATION tion; and if the short form of this clause, authorized by the Titles Act of 1860, be used, the execution will be on six days' charge. Where the old and longer form of clause was employed, it was not usual to consent to a six days' charge, because the registration of assignations is not intended to authorize summary diligence as for a liquid sum. The holder can proceed only by an ordinary action, on the warrandice, for making good loss or damage in case of eviction, and for that purpose registration is not necessary. CHAPTER II. THE assignation, when executed, requires of course to be delivered INTIMATION OF to the assignee; and the rules with respect to the delivery of deeds in ASSIGNATION. general, as formerly explained, and likewise on the subject of equivalents to delivery, may be here simply referred to. There is nothing exceptional or peculiar on these points in connexion with assignations of debts or other personal or moveable estate. I will presently notice certain subjects besides debts which may be conveyed by assignation, or as to the assignation of which cautions seem necessary; likewise the form of assignations in security. But, before entering on these departments of this subject, it will be convenient to consider what is necessary, besides delivery of the assignation, to complete the title of the assignee to a debt, and to divest the cedent. I refer to the Intimation of the assignation, which requires to be given to the debtor or obligant in the debt assigned. 1 Finlaw, 25th June 1670, M. 6544. 2 Reid, 24th Nov. 1857, 20 D. 83. INTIMATION OF ASSIGNATION. The principles on which intimation completes, and is necessary for the completion of, the assignee's title, are instructively discussed by Professor Menzies,' who shows that, agreeably to the ordinary rules which require possession, actual or constructive, in order to perfect the transference of property from one to another, intimation, in the case of a 'chose in action,' is considered tantamount to obtaining delivery or possession. This doctrine was held by Craig, who says, 'Civilis quædam possessio per intimationem concurrit. To the same effect the Court of Session speak of the necessity of an assignee intimating his assignation to the debtor, and so constituting him the assignee's debtor; and the English Judges say (as speaking to the assignee), You must place ' every person who has an equitable or legal interest in the matter under 'an obligation to treat it as your property. For this purpose you must 'give notice to the legal holder of the fund. In the case of debt, for 'instance, notice to the debtor is tantamount to possession.' 3 The assignee then, you will observe, must constitute the debtor as his debtor. He must place all concerned under an obligation to treat the debt as his property. The cedent personally is under such obligation, by having granted the assignation. The debtor, however, does not necessarily know anything of that document or transaction. It relates to a debt due by him, but he is not a party to it; and there is no register for publication of the transfers of mere personal obligations. Without intimation, therefore, to him, matters remain, as far as he is concerned, just as before. He stood bound to the cedent, and knows of no change. But, by the conception of his obligation, he is expressly bound to pay to the cedent, or his assignees; or, if the bond or debt is not expressly payable to assignees, the law (in the case of an assignable debt) will supply these words, and the debt is equally payable to the cedent or his assignees. The new creditor, as the assignee, is thus the proper payee; and all that is wanted is to certiorate the debtor of that fact in due form. This is done by making intimation to the debtor of the assignation. The assignee exhibits that document, and says to him, You were bound to pay to the cedent or his assignees. I am his assignee, and am now the payee, as much as if the bond or debt had 'been originally payable to me.' The intimation is thus, on ordinary legal principles, enough to place the debtor under obligation to pay to the assignee, and to regard him and no other as the payee. It is just like the draft or order by a creditor on his debtor in a cash-balance. Such balance being payable to the creditor or his order, the debtor is bound by law, after the order is presented to him, to pay to, or hold for, the payee in the order, and no one else. Then, as to third parties, they can claim through the cedent 1 Menzies, p. 248, et seq. 2 Wallace, 22d January 1663, M. 837. 3 Ryall v. Rowles, referred to in Jarman and Bythewood's Conveyancing, vol. v. 461. only. But what he has is only the debtor's obligation to pay to him. So long as the debtor's obligation to pay to him subsists, his (the cedent's) creditors, or others deriving right through him, can attach, or be made assignees of, that obligation. But, as soon as the obligation to pay to him (the cedent) is terminated, there is nothing remaining which can be taken or obtained from him. We have seen that the intimation of the assignation to the debtor substitutes the assignee as the creditor in the full right and place of the cedent, and terminates all obligation to pay to the cedent; and supposing any creditor of the cedent, afterwards, to attach the debt in the hands of the debtor, as if still due to the cedent, the answer would be,-the cedent is divested, and I, the debtor, am now bound to pay, not to him, but to the new creditor, the assignee. In like manner, a second assignation in the circumstances would transfer nothing. 1 These views may be illustrated by reference to the following cases: -Thus, where an assignation had been granted, but not intimated, the debtor in good faith paid the debt to the original creditor; such payment operated a good and effectual discharge to the debtor. Moreover, where two parties, respectively, have claims against each other, the one party can plead his claim by way of compensation or set-off against the claim of the other; but the plea of compensation does not arise if the claim founded on by the one party consists of a debt which has been merely assigned to him, and the assignation not yet intimated. The assignee's title to the debt in such circumstances is imperfect, and, until the assignation is intimated to the debtor, the assignee is not the creditor in the debt, to the effect of compensating the counter debt due by him; and such assignee, if he does not intimate the assignation in his favour before the debt due by him is assigned to a third party, and the assignation thereof intimated to him, cannot thereafter plead compensation at all." NECESSARY TO These cases show that the intimation is necessary, not merely for INTIMATION placing the debtor in mala fide, but for completing the assignee's title; DIVEST CEDENT. and, moreover, as no one can be fully divested of a debt until another is invested, we shall find that intimation is necessary for divesting the cedent, and has long been so regarded by the law of Scotland. Craig says that, if a right of reversion has been assigned to two different persons, that one who has first intimated his right shall be preferred; and it has been so found in many 3 cases. Further, when the cedent has died, an unintimated assignation granted by him is preferable to the right of his ordinary executor, supposing that no creditors are competing. But confirmation of a debt, as 1 M'Gill, 4th July 1558, M. 843; M'Dowal, 8th June 1714, M. 840. 2 Wallace, before cited, 22d Jan. 1663, M. 837; see also Ferguson, 12th Dec. 1665, M. 2652; and Barham, 29th Nov. 1733; 3 Drummond, 22d June 1492, M. 843; ASSIGNATION. INTIMATION OF forming part of the estate of the deceased cedent, expede by an executorcreditor of such cedent, is preferable to the right of the cedent's assignee under an unintimated assignation. The reason is, that the ordinary executor of the deceased cedent is just the representative of the deceased, and can take nothing in preference to a third party to whom such cedent had assigned the debt. But the executor-creditor is also a third party; his confirmation is equivalent to completed diligence in his favour, but yet even such diligence could take nothing from the cedent, or as being part of the cedent's estate, if the cedent had been divested by the mere assignation. Another case may be cited as showing strongly the necessity of intimating whatever is necessary to perfect the assignee's right. An assig'nation, revocable, though duly intimated, and the power of revocation 'afterwards renounced, was postponed to a posterior assignation, for ' onerous causes, also intimated, in respect the discharge of the power of revocation was not intimated.' 2 But, upon intimation of the deed or deeds by which the assignee is substituted in the place of the cedent, the assignee makes the debtor bound to pay to him. The assignee has become the creditor, and fully vested in the debt; the cedent is thereby divested, and his creditors or subsequent assignees, having claims only through him, are excluded. We have seen that a second assignation, duly intimated, is preferable to the first assignation, not intimated; on the other hand, the debtor, if after intimation he pays to the original creditor, is liable to pay a second time to the assignee.. Payment, in such circumstances, is made to the wrong party, and is no payment of the debt which has been assigned.3 To delay intimation, therefore, might lead to a claim of damages on the assignee's part against the party whose duty it was to intimate. A claim by the assignee of a bond was sustained against the heir of a lawagent, for the loss upon a loan of £1000, negotiated twenty-five years previously, on the ground that such loss arose from the omission of intimation which was necessary to complete an assignation. In many cases there may be no risk of double assignations; but, in transacting business connected with loans, the only rule consistent with safety and comfort is to see the security at once, and without delay, completed in all particulars. This is the more important, from the terms of the Bankrupt Act of 1856,5 which, in conformity with some earlier Acts, now superseded, declares that the act and warrant of confirmation in favour of the trustee shall ipso jure transfer to, and vest in, him for the creditors of the bankrupt, as at the date of the sequestration, the moveable estate of the bankrupt, so far as attachable for debt, to the same effect as if actual delivery or possession had been obtained, or intimation made at that date. In case of the cedent's bankruptcy, therefore, there will be 1 Sinclair, 5th July 1726, M. 2793. 2 Crockat, 22d Jan. 1743, Elchies, voce Assignation, No. 5. 3 Hope, 12th June 1816, F. C. no opportunity allowed for remedying a previous omission. If the assignation has not been intimated before the act and warrant of sequestration is issued, the trustee's right being by the force of the Statute first completed, the previous assignee will be excluded. Lillie's case. also shows the necessity of preserving evidence for instructing the fact of intimation. Lord Kames says that the intimation must be in the cedent's name, as the assignee has nothing to say to the debtor, but qua procu'rator; and, in an anonymous case, it was found enough that the cedent himself, and not the assignee, gave the intimation. But the deed to be intimated is the assignee's. He is the party interested in completing his own title; and though, no doubt, intimation given in due form by the cedent, and proved in writing, would be good and effectual, the proceedings heretofore in use to be adopted in intimations have been always, and in strictly correct principle, in name or on behalf of the assignee. The intimation may be made notarially; and, if so, either in virtue MODE OF of a short and simple form authorized by the Act of 1862, or in the INTIMATION, form previously in use; or without the intervention of a notary, by producing the assignation to the proper party, delivering a copy to him, and obtaining from him a probative acknowledgment that the assignation has been intimated; or, in virtue of the Act, by sending to the proper party a certified copy of the assignation through the post-office, and obtaining from him a written acknowledgment of the receipt. Indeed, the intimation may be made in any way which brings the knowledge of the assignation home to the debtor, provided always that proof of the fact can be adduced. When given notarially, the proceeding in use before the passing of the Act of 1862 was as follows: A procurator for the assignee (whose power of procuratory was duly OLD FORMS. constituted by the lawful possession of the assignation), together with a notary-public and two witnesses, attended the debtor, the procurator having in his hands the assignation. The procurator, in presence of the notary and witnesses, exhibited to the debtor the principal assignation, stated its terms, and delivered to him a full and complete copy, attested by the notary as correct; stated that, as procurator, he intimated the assignation to the debtor, and protested that he (the debtor) should hold the same duly and legally intimated, should not pretend ignorance thereof, or of the intimation, and should not make payment to any other than the assignee, or those in his right; and that, if the debtor should do in the contrary, he should be liable to pay to the assignee not only the amount of the debt, but also damages and expenses. Thereupon the procurator took instruments in the notary's hands, by presenting a piece of money to him; in other words, he asked the notary to make out a formal notarial instrument recording what had been done. These statements were all inserted in a schedule, running in name of 1 Kames' Elucidations, p. 319. 2 A. v. B, 25th Jan. 1540, M. 843. |