Oath of the cedent to prove payment not good against an onerous assignation.
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In a suspension of William Cunninghame against John Rosse, who being assignee made by Mr Matthew Crawford, had charged the said William for payment of some money addebted by him to the cedent, for the price of some lands, bought from the cedent by the suspender, and which he alleged in his suspension he had lawful cause to retain against the assignee, seeing the cedent in the contract of alienation of the said lands had disponed the farms of that crop, the year of the alienation, which were nevertheless uplifted and intromitted with by himself, the quantity, price, and intromission whereof he referred to the oath of the cedent, and who now being non solvendo, the same was alleged ought to be received against the assignee, and that he ought not to be prejudged by the said assignation made to his prejudice, seing as it would meet the cedent's self, the non liquidation, and all being elided by the referring to his oath, so ought the same to be admitted against the assignee. The Lords found that the cedent's oath could not be taken against the assignee, therefore, seeing the debt was not liquidated against the cedent's self, and they ordained the money (for the same was consigned in the suspension) to be given to the assignee, he finding sufficient caution to repay the same to the suspender, whensoever the cedent should be constituted lawful debtor to the suspender, in the liquidated farms foresaid, disponed to him in the said contract, and when his intromission therewith should be lawfully tried; for the making of the assignation to the cedent, who was become non solvendo, was not found to be sufficient to prejudge the suspender of his execution of that head of the contract, wherein the cedent was obliged to him, inhibition being also executed by the suspender thereupon against the cedent, before the making of the said assignation.
Clerk, Hay.
Fol. Dic. v. 2. p. 235. Durie, p. 274.
