The assignation of a lease, or of the rents of an estate, is perlikted by possession, without the necessity of inti mation, but such asssignation, although intimated, is not valid in a competition with• creditors, it the assig nee has allowed the cedent to remain in possession.
Where there are many obligants, intimation made to any one is sufficient for completing the conveyance ; but it cannot prevent those, to venom no intimation was giv en, from making payment to the cedent.
Certain assignations require no intimation : I. Trans missions, or indorsations, of bills of exchange ; among which arc included inland bills. 2. Bank-notes, or bank bills ; which are fully conveyed by the bare delivery. 3. Assignations of assignable reversions need not be in timated, but must be recorded in the register of rever sions. The recording of the conveyance of a moveable bond, however, does not supply the want of intimation; because the records are not intended to serve for pub lication, in the case of personal rights, but merely for safe custody, or as a warrant for diligence. 4. A right of lands, not perfected by seisin, does not, from its na ture, admit of intimation. 5. Legal, or judicial assig nations, such as marriage, or adjudication, need not to be intimated ; because they derive force from the law itself, and carry the full right to the subjects conveyed, without the interposition of any legal solemnities, (Stair, b. iii. tit. i. 4 13, 14.) There is nothing in these con veyances, however, which can put the debtor in niala fide; he is therefore, in tuto, to pay to the wife, or to the original creditor in the debt adjudged, until the marriage, or adjudication, be notified to him.
An assignation carries to the assignee all rights which corroborate or strengthen the right conveyed, and all di ligences which have proceeded upon it. Hence the as
signee may use diligence, either in his own name, or in that of the cedent, while he is alive. But letters of diligence, which have been issued in name of the cedent, cannot be executed by the messenger in the name of the assignee ; for messengers have no power to judge of the import of transmissions, but are confined, in their exe cutions, to the will of the letters. An assignee, how ever, may raise a caption in his own name, upon a horn ing raised in name of the cedent.
In a right conveyed simply in trust, all questions rela tive to the extent of the trustee's powers depend on the nature and purposes of the trust. If it is intended that the trustee shall have full power over the subject, he may use all acts of property ; but if the trust be granted merely for one special purpose, the powers of the trus tee, though not limited in the right, ought to go no far ther.
After an assignation has been intimated, the debtor cannot prove payment or compensation by the oath of the cedent, unless the matter has been made litigious by an action commenced prior to the intimation. But the debtor may refer to the oath of the assignee, . that the assignment was gratuitous, or in trust for the cc dent. If the assignation be partly onerous, and partly gratuitous, the oath of the cedent is good against the assignee, only in so far as his right is gratuitous.
All defences competent against the original creditor in a moveable debt, which can be proved otherwise than by his oath, continue relevant, even against an onerous assignee, according to the rule : 4ssignatus utitur jure auctoris. See Ersk. List. b. iii. t. v. Bell's Diet. of the Law of Scotland, v. Assignation. (z)