In a question whether the oath of the cedent could prove against a gratuitous assignee, the assignee's oath was ordained to be taken before answer whether the assignation was onerous or not.
Click here to view a pdf copy of this documet : PDF Copy
William Wright as assignee by John Shiel in Carlowrie, obtained decreet against George Shiel in Nortoun, as heir to John Shiel his brother, for payment of two bonds. George Shiel suspends upon this reason, that the assignation was gratuitous, without onerous cause, which he offered to prove by the assignee's oath, and offered to prove by the cedent's oath that the debt was satisfied.
The Lords having at length considered, and debated this case among themselves, whether the cedent's oath could prove against an assignee, when the assignation was gratuitous, some were of opinion that it could not, because nothing can prove but writ or two witnesses, or oath of party, and the cedent is not the party, but the assignee; and albeit the cedent could be a witness, he is but one; and because it is a rule with us, that the cedent cannot depone in prejudice, of the assignee, unless the charge be to the cedent's behoof; and we have no exception, whether, it be gratuitous or onerous; but the most part were of opinion, that in gratuitous assignations, the cedent's oath should prove; because an assignee is but procurator in rem suam, and doth not proceed upon his own right, but utitur jure auctoris; and therefore, albeit for commerce, our custom hath not allowed the oath of the cedent in prejudice of the assignee; yet the case in a gratuitous assignation hath neither been debated nor decided; and therefore in it, the cedent's should be sufficient, seeing it cannot be presumed that he who voluntarily gifted, will swear to his assignee's prejudice; and that truly the cedent is party, and the assignee pursues but as procurator in rem suam. And seeing we have no law regulating this case, equity and expedience ought to rule it; but in equity no man can put his debtor in a worse condition, without his consent, either as to the matter, or as to the manner of probation; and in expedience, the excluding of the cedent's oath in this case, opens a way for fraud, that after debts are paid, they may be assigned, even freely, and the debtor is excluded from his probation of the payment.
The Lords before answer, ordained the assignee's oath to he taken, whether the assignation was for a cause onerous or not.
