Administrator's Oath, if relevant against his Constituent?
Lauder v. Chalmers
Date: 24 January 1685 Case No. No 333.
Where a husband was sued for furnishings to himself, his wife, and children, the wife, and children, were the evidence upon oath as to the goods taken off by them.
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Colin Lauder merchant in Edinburgh, as assignee by Alexander Blair merchant, pursues Chalmers of Gadgirth for payment of an account of ware taken off by him, his lady, and children, from the said Alexander. He deponed on a commission, that, though the account was near L. 1000 Scots, yet he was only owing for ware taken off by his special warrant and order, L. 105 Scots. On this, Colin gives in a bill, showing that the rest of this account was truly furnished to his Lady and children, and that she was not inhibited, and the furniture did not exceed their rank and quality, and Alexander Blair was his nephew and ordinary merchant, and that he did not furnish them with necessaries aliunde, and so there needed no special warrant nor order for furnishing; and therefore craved he might be re-examined, and that his wife and children might likewise depone. The Lords having, considered the bill and answers, they first decerned for the L. 105 confessed, and granted a new commission to re-examine Gadgirth, if it consisted with his knowledge, that the articles in the account were furnished to his Lady and children; as also his Lady and children to depone, if they received the goods contained in the said account; which was done, though they were in familia, and she vestita viro, and though they were not so much as convened in the summons.
March 10.—In Colin Lauder's case against Chalmers of Gadgirth, mentioned 24th January 1685, the Lords having advised the second report, they decerned against him for the particulars acknowledged by his Lady and children to be received by them, notwithstanding of the quality in his oath, that he discharged Alexander Blair, the pursuer's cedent, to furnish them, seeing they were not exorbitant, nor furnished aliunde; and notwithstanding of the quality adjected by the Lady to her oath, that Alexander Blair promised to take back the silver-lace; seeing it was yet in her hands for these several years; and they held one of his sons as confessed, because he would not depone but with this quality, that it was gifted to him, which is not presumeable, his part of the account being L. 137 Scots; the pursuer, before extract, proving that the prices contained in the account are the ordinary prices that such goods were sold for at the time; which the pursuer having done, and the depositions being advised, the Lords decerned.
Fol. Dic. v. 2. p. 239. Fountainhall, v. 1. p. 333, & 349.
