Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Robert Mein and James Young, his Tutor, v. Agnes Gray
Date: 21 June 1699
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Whitehill reported Robert Mein, and James Young, his Tutor, against Agnes Gray, relict of William Mein, postmaster in Edinburgh. The said William, dying in 1696, left an estate of about £20,000 Scots, in merchant-ware, debts standing out, and household plenishing; and Agnes, his relict, having intromitted without making inventory, Robert Mein, as executor to his brother, pursues the relict for count, reckoning, and payment; and craves his oath in litem may be taken on the value of his brother's estate, in respect of her deceitful embezzlements and concealments, she having vitiated the count-books, by ocular inspection: 1mo. By tearing out leaves thereof; 2do. By scoring out articles in the books extending to £9000, as if paid in his time, whereas, by the uniformity of the ink, &c. it appears all done since his death; 3tio. By interlining the book in several places since: which being deeds so palpably fraudulent, the mean of probation is suppressed; and therefore, in odium of her dole, the child's tutor, who can give most pregnant verisimilitudes of his knowledge, ought to have his oath in litem against her.
Alleged by the defender,—That an oath in litem, by our law, is only in cases of spuilyie and masterful violence, by ejection or intrusion; which cannot be pretended here. 2do. It is competent to none but the party injured and skaithed, who may be presumed to know his own loss; but a third party or tutor cannot. 3tio. He must be dominus litis, and the estimation must be ad utilitatem jurantis, and cognition behoved to proceed of the defunct's estate and condition; and an oath in litem is only in supplement of that probation, but was never craved to stand for all. 4to. Though the Roman law permitted an oath in litem in many cases promiscuously, as in actionibus bonœ fidei, in rei vindicatione, and where there was either dolus or culpa vera, vel prœsumpta, per contumaciam,—yet the modern lawyers show it is laid aside now, as making pursuers too much judges in their own cause; so Zypœus, in his Notitia Juris Belgici, testifies of France; Mynsinger, in his Observat. Practicœ of Germany; and Voet, ad Pandectas, says, Hodie non obtinet, sed judices id quod interest ex bono et œquo œstimant. 5to. Esto it were competent ob difficultatem probationis, occasioned ex dolo adversarii, yet here was no fraud on the defender's part, but ignorance; for as to the leaves torn out, it is offered to be proven it was one Dalton, an Englishman's book, who had begun to write his accounts in it, and her husband getting it, these leaves whereon he had begun to write were taken out; and as to the deleting the debtor's names, she, being to produce the count-book to the commissaries, thought it indecent that noblemen and gentlemen's names should be read and propaled there, which moved her to score them out; and the interlinings were done in her husband's time; and one of the children recklessly did tear a part of the book.
Answered,—Our law has not restricted the oath in litem to spuilyie and violence; but the same must be received wherever the probation fails by the defender's fraud, the parity and analogy of law being the same in both, else dole may escape unpunished. 2do. This privilege transit ad hœredes et creditores; and though l. 42. D. de Reg. Jur. presumes an heir ignorant of his predecessor's deeds, yet this is sufficiently taken off by a positive probation, That the heir and his tutors know the condition of the defunct's estate; which is inferred from thir grounds, familiarity, near neighbourhood, relation, and intimate correspondence with William Mein, the defunct, with the said William's own acknowledgments and declarations anent the value of his estate, and the testimonies of famous persons who traded with him, in buying and selling every day, and were oft in his shop, &c. And, seeing law requires no more but that the party be verisimiliter instructus et informatus de rebus defuncti, si habitavit cum eo et negotia sua ei communicare solebat, and these qualifications all centering in this tutor,—he ought to be allowed an oath in litem for his pupil's behoof: And this is founded on the opinion of the following lawyers:—as Wesembecius, ad tit. D. de in Litem Jur.; Menochius de Quœst. Arbitrar. lib. 2. cas. 208 et 160; Plotus, in his tract, de Jurejurando in Litem; Anton. Faber. in Codic. Sabaudo dict. tit. Mavii Decisiones Wismarienses, lib. 6. decis. 372 et 374; Mascardus de Probat. Conclus. 531. num. 43. et seq. and l. 4. D. de in Litem Jurando, admits a tutor to give this oath; as also, l. 7. D. de Adm. et Peric. Tutor.
The Lords thought the case new; and whatever might be pretended for taking the oath of the party damnified, yet it seemed a stretch to extend this to a tutor; and, on the other hand, some remedy was necessary to repress such malversation in corrupting of count-books after a party's decease, whether it should be by a juramentum in litem, or taking a talis qualis probatio; therefore the Lords judged the case to deserve a hearing in their own presence.
