Administrator's Oath, if relevant against his Constituent?
Scot v. Cockburn
Date: 6 March 1627 Case No. No 324.
Found in conformity to Monteith against Smith, supra.
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In an action betwixt Scot and Cockburn, for payment of a bairn's part of gear falling to the pursuer, and which was pursued against the executor of the defunct, the Lords found an exception of exoneration noways relevantly qualified nor instructed, which was found upon decreets recovered by the creditors of the defunct against the said executor, where the debts contained in the said decreet were only proved by the executor's own oath, or her being held as confessed; which probation of debt, after that manner and sentence following thereupon, without other lawful adminicle to prove the debt, the Lords found not sufficient to exoner the executors, and to prejudge either the bairns of their legitim, or any other lawful creditor of the defunct qualifying a lawful debt; neither did the Lords respect what the executor alleged, that where the debts were referred to her oath, which she knew to be true debts, that in such cases she could not perjure and manswear the same, and therefore, that she ought not to be prejudged to pay the debts, being truly known to her, and not to be exonered thereby; which the Lords repelled, seeing they found that other creditors could not be prejudged, as said is; in which cases it would appear, that the judge ought not to decern upon such manner of probation, but with the hazard to the party obtainer of the sentence, that he should be subject to relieve the executor at all other creditor's hands, who should have more lawful manner of probation to verify their debt; and, for that cause, to be subject to refund the money so paid by the executor; and that the executor here, before sentence should be recovered upon her confession, desired the judge to provide, for this; see 13th March 1627, Ker contra La. Covington, infra.
Act. Scot.Alt. Sharp.Clerk, Scot.
Fol. Dic. v. 2. p. 238. Durie p. 285.
