Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 21 January 1686
The Earl of Southesk v. Murray of Philiphaugh
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The Earl of Southesk pursuing an adjudication against Murray of Philiphaugh, the debtor offers to restrict him to a parcel of land; and the rental being admitted to probation, Southesk referred it to Philiphaugh's oath. Alleged,—He is not obliged to swear; because, when another creditor comes to adjudge, he may deduce another probation, viz. by the tenants and witnesses, and, if they should differ, it may reflect upon his oath. Answered,—This can infer no more hazard of perjury than if one creditor should refer the passive titles to a debtor's apparent heir's oath, and another should prove it aliunde.
The Lords, on Forret's report, found, if one were adjudging the whole, the debtor is not bound to depone, because there on the subject the other creditors would have interest; but where one adjudges only a part, there they found that it might be referred to his oath.
