Transactions in a Foreign Country, will be judged of, as to Proof and Effect, by the Law of the Place, so far as founded in the jus gentium, not where merely statutable.
Subject_3 SECT. II.
Cedent's Oath.
John M'Morland v. William Melvill
Date: 28 June 1666 Case No. No 14.
A bond was executed in England after the English form, and assigned there also. The cedent's oath was found good against the onerous assignee, tho' it was argued that the assignation was according to the Scotsstile, and that the debtor, tho' residing in England, was a Scotsman, and knew the custom of Scotland.
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William Melvill, and one Hatter an Englishman, both residing in England, gave bond to Gawin Lourie residing there, after the English form, who assigns it to John M'Morland. Melvill suspends upon this reason, that he had made payment to Gawin Lourie the cedent, which he offered to prove by Gawin's oath, and which could not be refused, because he offered to prove that it was the custom of England, that the cedent's oath can never be taken away by assignation, as it is in Scotland, but that assignations are only as procuratories, and that payment might be proven there by witnesses, to take away writ. It was answered, that the law of Scotland must regulate the case, because the assignation is according to the Scots stile, and the debtor, albeit residing in England, was a Scotsman, and knew the custom of Scotland.
The Lords found that the manner of probation behoved to be regulated according to the custom of England; and so, that payment might be proven by witnesses, or by the cedent's oath, yet so, as the cedent could not be holden as confest, but the debtor or suspender behoved to produce him, and move him to depone. Wherein the Lords so declared, because they were informed, that the suspender proponed the allegeance, because the cedent was quaker and would not swear at all.
Fol. Dic. v. 1. p. 318. Stair, v. 1. p. 382.*** Newbyth reports the same case:
John M'Morland, assignee constitute by Gavin Lourie to a decreet of L. 200 Sterling, owing by William Melville to him, pursues the said William Melvill for payment; and it being alleged for the defender, that he had paid the debt to the cedent, Gavin Lourie, which ought to liberate him, and which payment he would prove by the cedent's oath; to this it was answered, not relevant to be proven by the cedent's oath, but only scripto vel juramento of the assignee, according to the laws of Scotland, which behoved to be the rule in this case, being amongst Scotsmen. It was replied, the bond was an English bond, granted to the cedent who lived in England, and was there animo remanendi; and albeit the assignation was conceived after the way of Scotland, yet that could not alter the nature of the bond, nor of the manner of probation of the payment of the debt according to the law of England. The Lords found the defence of the payment made to the cedent relevant to be proven by the cedent's oath, in prejudice of the assignee, in regard the bond was an English bond, subscribed in England, the nature whereof could not be changed by the assignation. But found, that if the cedent were holden as confest, and would not depone, it should not be profitable to the defender, which the Lords so qualified, because the cedent was a quaker, and so would not give his oath, and which the Lords thought was proponed of purpose by the defender, because he knew the cedent would not give his oath, nor depone.
