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Scottish Court of Session Decisions >>
James Wardlaw v Mr Robert Petillo. [1671] Mor 12456 (11 July 1671)
URL: http://www.bailii.org/scot/cases/ScotCS/1671/Mor2912456-295.html Cite as:
[1671] Mor 12456
A brother being assigned to a bond or decree for no onerous cause, and so a donation, the Lords sustained compensation to be proved by the cedent's oath, without the necessity of reduction upon act 1621.
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Wardlaw being charged at the instance of Mr Robert Petillo, as assignee constituted by George Petillo his brother, in and to the sum of 420 merks, contained in a decree-arbitral, decerned in favours of the said George, did suspend upon this reason, that he offered him to prove by the cedent's oath that he was debtor to him in as much for goods received, whereupon he gave in a condescendence. It was answered for the charger, That the cedent's oath could not be taken to the prejudice of the assignee, for an onerous cause. It was replied, That they offered to prove by the assignee's oath, that his assignation was for no onerous cause, but a mere donation by one brother to another, which could not hinder compensation to be proved by the cedent's oath, as was found in a case betwixt Forbes against Forbes, where a bond was assigned by a father to a second son. The Lords did sustain the reason of suspension, and found it probable by the cedent's oath, to take away the assignation, it being but a mere donation, and that there was no necessity to reduce upon the act of Parliament, as being done in fraudem.
Fol. Dic. v. 2. p. 231. Gosford, MS. No. 376, p. 185.
