A tutor's oath not relevant to prove a condition or agreement with the defunct against the pupil.
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In an action of a count and reckoning betwixt the two infants, it was alleged for the defender, That he being pursued upon his father's back-bond, obliging him to make count and payment of the means of umquhile Fergus Eccles, his brother, to Thomas Eccles, and umquhile Andrew Eccles, the pursuer's father. It was answered, Upon condition that Mr. Hugh, the defender's father, should have the third part to himself, the question was concerning the manner of probation. The pursuer alleged, It was only proveable scripto, he being a pupil and his father dead. The defender alleged, It was proveable by the tutor's oath, being so likely in itself, that Mr. Hugh being the third brother should have the third share, and that Thomas, the tutor, did accordingly allow him the third share; and there was produced a testificate of Balloche, that there was an agreement.
Notwithstanding whereof, the Lords refused to take the tutor's oath, ex officio, seeing they found, albeit it were affirmative, it could not prove against the pupil.
