A cedent's oath is not good against an onerous assignee, to prove payment, compensation, or any direct exception against the debt; but where compensation was proved scripto, and the assignee pleaded recompensation, the cedent's oath was sustained to take off this plea.
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John Boyd late Bailie of Edinburgh, as assignee by Mr James Logan and Mary Cave his mother for sums received by them, to the duties of a tenement in Leith, and certain acres near thereto for the crop 1666, pursues Storie the tenant for payment, who alleged compensation upon a bond of 500 merks due to him by the cedent, before the assignation, It was replied, That the tenant having been tenant for several years before, had enough of these years in his hand to satisfy the sum of 500 merks wherewith he would now compense. It was duplied, That these former years were paid and discharged, which being found relevant, the defender produced several discharges, one by Mary Cave and Mr James Logan, of a part of one year's rent; against which it was objected, That Mary Cave the liferenter having the right, had not written that discharge, and it wanted witnesses, and so is null. It was answered, That discharges by masters to their tenants use commonly to be written by servants, and subscribed by the masters without witnesses; and as custom allows bills of exchange, orders, and receipts of merchants, though neither holograph, nor having witnesses, so much more receipts and discharges by masters to their tenants which are of less moment, and if the contrary were sustained, all tenants might be ruined by their masters' heirs, or executors, or singular successors; and though after arrestments or diligence, such discharges might be quarrelled, yet these discharges were granted before any assignation or arrestment, and Logan the fiar was writer of this discharge.
The Lords, in respect of the custom between master and tenant, sustained the discharge, the tenant making faith that he received the same from his master before the assignation.
There was another discharge produced, granted by a malt-man, bearing, that he had received a part of the farms by warrant of Mr. James Logan, and another granted by Mr James Logan, as having warrant and right from the said Mary Cave liferenter. It was objected against these discharges, that there was nothing produced to instruct Mary Cave's warrant to the malt-man and her son. It was answered, That the same was offered to be proved by Mary Cave's oath. It was replied, That the oath of Mary Cave the cedent could not he made use of against this pursuer her assignee. It was duplied, That albeit a cedent's oath cannot prove against an assignee, as to the right assigned, to take it away by payment, compensation, &c. which is not the case here, the tenant having instructed compensation by writ;—against which the assignee having triplied upon rents of former years not assigned, utitur jure auctoris, and can be in no better case than Mary Cave his cedent; who, if she were pursuing for these former years, the tenant would get her oath, that he had paid the same by her warrant;
The Lords found that the warrant might be proved by Mary Cave the cedent's oath.
Fol. Dic. v. 2. p. 235. Stair, v. 2. p. 282.*** Dirleton reports this case:
The Lords sustained a discharge granted by a master to his tenant upon payment of his duty, though it was neither holograph, nor subscribed before witnesses, but pretended to be subscribed by the granter, which the Lords did in respect of the custom, and that masters and tenants are in use to give and take discharges without witnesses; and that in the case of writs, letters, and bills betwixt merchants, the Lords are in use to sustain them, though they want witnesses; and there is the same, if not more reason in the case of tenants, by reason of the great and exuberant confidence betwixt them and their masters. Some of the Lords thought it hard to recede from the law, there being no limitation or exception in behalf of tenants; et ubi lex non distinguit nec nos; and that there is a great disparity betwixt merchants and tenants; counts, letters, and bills of exchange, and other writs of that nature, being secret transactions betwixt merchants and their correspondents, whereunto witnesses and other persons, neither are in use to be, nor is it fit they should be privy; whereas discharges by masters to tenants are in use to be, and there is no inconvenience that they should be subscribed before witnesses; and there is no difficulty to get witnesses to them; and if they want witnesses, and be not holograph, masters may be prejudged, it being easy to imitate and forge a single subscription; and there being no means of improbation of the same. See Writ.
