What understood to make a lis pendens. - Assignation granted pendente lite. - Marriage pendente lite. - Encroachments pendente lite. - Titles made up pendente lite.
Nicol Sommerville v. -
Date: 20 June 1673 Case No. No 5.
Where the matter is litigious before assignation, the cedent's oath is good against the assignee, not as a witness, but as a party, and he may therefore be holden as confest.
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There being a point of form reported from the Outer-house to this effect: An assignee having charged the debtor, he suspended upon a reason of compensation, which was found relevant to be proved by the cedent's oath, because the cause was litigious before the assignation, and a diligence was granted to the debtor against the cedent to depone; but he not having compeared, the question was, Whether the debtor should proceed in further diligence by horning and caption, to force the cedent to compear, as if he had been a witness to prove his exception; or if that the debtor might cite him personally, or at the market-cross of Edinburgh, if out of the country, and thereupon might obtain him holden as confessed upon the verity of his reason, and if his being holden as confessed would prove against the assignee, or if the assignee was obliged to produce him.
The Lords found, that the assignation being taken after the cause was litigious, it could not prejudge the debtor, but that if the cedent was personally apprehended, or at the market-cross of Edinburgh, if out of the country, it would prove against the assignee.
