A minor's procurators rashly referred to the other party's oath. The minor altho plainly lesed had no remedy.
Click here to view a pdf copy of this documet : PDF Copy
In the concluded clause, Cubie contra Cubies, it was alleged against some bonds of provision, granted by a father to his children, 1mo, They were never delivered, 2do, They were satisfied and paid, in so far as they had got sums equivalent thereto from their father, posterior to these provisions; whereunto it was answered, (as appeared by the debate in the act of litiscontestation) that these bonds being now in their hands, they needed not prove delivery; neither; did such writs require a formal delivery, To the second, That donations by parents were presumed to be distinctæ liberalitates. Replied, That cannot be supposed, because they offered to prove by their oaths that they were given in satisfaction of their former debts. Which reply being found relevant, three of them compeared, and deponed, that when their father gave them these sums, he expressly declared he gave it them over and above their bonds of provision; and the fourth said, she got her sum from her elder siter, Helen Cubie, but neither said it was in satisfaction or not. These oaths falling to be advised this day, it was objected by the pursuer of the reduction, that he was minor, and disclaimed the debate made for him, being plainly lesed thereby, seeing the presumption of law militated for him, that the posterior payments must be ascribed to satisfy and extinguish the prior bonds, quia debitor non præsumitur donare, and there was no necessity of referring it to oath, that it was either given or accepted in satisfaction; and therefore craved to be reponed, as has been often decided, Young contra Paip, voce Presumption, and 12th Nov. 1698, Sydserf, Ibidem. The Lords were sensible the process was wrong managed, but seeing it was juratum, they refused to repone him now. But as to the sister, whose oath was not special, they ordained her and her sister Helen to be re-examined, what the father declared when he gave Helen the money to deliver to her younger sister, if he said it was over and above what she was provided to, or in part of it pro tanto, and what Helen said to her sister when she gave it her. Neither did the Lords regard that it was contended to be an extrinsick quality, that the father gave it them over and above their portions, and so ought to be aliunde proved, for they thought the causa dandi intrinsick. Parallel cases to this have been so oft decided and marked, that this might have been omitted, had it not been for the special circumstance of the oath, which exeems it from the common case and presumption ‘quod debitor non donat nisi expresse id actum fuisse appareat;’ and that it was unnecessarily referred to oath by a procurator, to the prejudice of a minor, his client.
Fol. Dic. v. 1. p. 584. Fountainhall, v. 1. p. 65.
