Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sarah Douglass, and Irvine of Woodhouse, her Son, v. Graham of Mossknow
Date: 4 July 1694
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This was a reduction of a decreet in foro in 1683, finding Irvine of Bonshaw had been tutor to the said Woodhouse, and, in the event of the count, that he was debtor in £17,000, for which they had adjudged Bonshaw's estate. The first reason was, That the decreet did not determine nor divide the several manners of probation according to the nature of the articles, but the pursuer had led witnesses on them all; whereas, his being tutor, and the defender's being infeft, could only be proven scripto; which was a clear nullity. The Answer to this was,—He was libelled against as tutor, and his deeds of pro-tutory were evidently proven, and also acknowledged by himself, in so far as he craved deduction for lands wasted by the English; which presupposed his intromission as tutor. The Lords repelled this, and found it no nullity.
The second reason was, That the witnesses were not sworn; seeing their depositions wanted these words in the end, “This is the truth, as they shall answer to God.” answered,—Though the clerk had omitted this, and that the invocation of the name of God was essential to an oath, as that which struck terror, yet it was here materially supplied; because it bore, in the beginning of the deposition, that they were solemnly sworn, which includes all solemnity of the words. The Lords also repelled this nullity.
The third, and more material reason, was, That, by the age of the witnesses, it appeared that two of them were but ten years old the time of the facts inferring the tutory, whereupon they depone; and things observed in pupillarity cannot make faith; seeing they are not then arrived to that maturity of judgment as to understand things. The Lords considered, if they had been examined on a commission de recenti, and been alive, there was some pretence; but, being now dead, et proximi pubertati, when they saw the things on which they deponed; and giving a good causa scientiœ, because they were his tenants' sons, and lived in the place, and conversed daily there: though at the time of their examination parties were not present, (as now, since the Act of Parliament 1686,) yet, quoad initialia testimoniorum, as their age and the like, they were not debarred, but had liberty to object: Therefore the Lords also repelled this reason; especially seeing there were three or four other witnesses who concurred with them in the same things, and against whom there was no such objection. So, on the whole matter, the Lords adhered to the decreet, and refused to loose it.
