Scottish Court of Session Decisions

Subject_1 QUALIFIED OATH.
Subject_2 SECT. V.

No exception will be sustained unless proponed at Litiscontestation.

Captain John Grant of Easter Elchies, as Assignee by Archibald Innes of Auchluncart,
v.
Major Alexander Anderson

Date: 20 June 1705
Case No. No 50.

That a assigned ticket, to hold count for a sum, was holograph, being referred to the granter's oath, and he having deponed acknowledging so much, but that in terms of the ticket he had accounted with the cedent; the quality was found extrinsic, and the cedent's oath upon the accounting allowed to be taken cum onere expensarum.

Click here to view a pdf copy of this documet : PDF Copy

In the action at the instance of Captain Grant against Major Alexander Anderson, for payment of L. 79 Scots contained in his ticket, whereby he stood obliged to hold count for that sum to Innes of Auchluncart the pursuer's cedent; the ticket being quarrelled as null for want of writer's name and witnesses, the pursuer offered to prove by the defender's oath, That he both written and subscribed the ticket. And he having in his deposition acknowlegded the same to be holograph, but that he had in the terms thereof counted with Auchluncart for the money, the Lords found the oath supplied the nullity of the ticket, and the quality to be extrinsic, and therefore decerned; albeit it was alleged for the defender, That the defects of the ticket being only supplied by his oath, the oath could not be divided. 2do, The ticket is not of the nature of a clear and liquid obligation, where one obliges himself to pay a sum, but is allenarly to hold count, which of itself implies, that the person to whom it is granted is debtor on the other hand, and that there are mutual claims; upon which the defender having deponed, that seems to make a complete probation.

Then the defender offered to prove by the cedent's oath, that he did count with him in the precise terms of the note for the sum, and allowed the same in the first end of what he was resting at the time of the counting; which must prove against the pursuer, though an assignee for an onerous cause, seeing the obligement is only to count for the sum.

Answered for the pursuer; If the defender had counted with Auchluncart, he would either have got a writ under his hand acknowledging so much, or retired his own note, neither of which is done. 2do, The cedent's oath is not to be taken to the prejudice of his assignee; nor even the assignee's oath after a cause is thus concluded, where the oaths may clash, and prove contradictory.

But if the Lords incline to ordain the cedent to depone, the pursuer acquiesceth, so be it is with the burden of all expences debursed in the process.

The Lords allowed the cedent's oath to be taken cum onere expensarum.

Fol. Dic. v. 2. p. 299. Forbes, p. 6.