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Scottish Court of Session Decisions >>
Frazer v Frazer. [1678] Mor 844 (12 February 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor0200844-041.html Cite as:
[1678] Mor 844
Before intimation, the cedent's oath, is competent, to the prejudice of the assignee.
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Hugh Frazer of Easter-tyre, and Frazer of Streichen, as cautioner, having granted a bond of 1000 merks to Alexander Frazer, who assigned the same to Robert Frazer, in whose name process was intented against Streichen the cautioner; who alleged absolvitor, because he offered him to prove by Robert's oath, that the pursuit was to the behoof of the Lord Salton, his son or grand-child in his family; and by the Lord Saltan's oath, that the same was paid or compensed.—It was answered, That granting the pursuit was to the behoof of William Frazer oye to the Lord Salton, who produces a translation from Robert Frazer, and thereby might proceed in his author's name or his own; but when any thing is referred to the cedent's oath, he may exclude the same by the translation; it being a certain rule, that the cedent cannot depone in prejudice of the assignee.—It was replied, That the process being in the cedent's name, intented before any intimation, becomes thereby litigious; and an assignation or translation, though prior to the pursuit, yet not being intimate before the pursuit, and thereby the cedent not being denuded, his oath is competent against the assignee.
Which the Lords sustained, and ordained the cedent to depone.
