Administrator's Oath, if relevant against his Constituent?
Daughters of William Waddel v. William Wadderstoun of Haugh
Date: 16 July 1707 Case No. No 336.
A bond granted, payable to two co-tutors nominatim, for the use and behoof of their pupils, in contemplation of a disposition granted by these tutors, of some moveables belonging to their pupils, being assigned to them after their majority, it was found that the debtor could not prove payment by the oath of the surviving tutor, one of the cedents, the other being dead, and both officio functi.
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William Wadderstoun of Haugh having granted a bond for 1030 merks, payable to Thomas Waddel and James Wadderstoun, uncles and tutors to the three daughters of umquhile William Waddel in Gilmertoun, for the use and behoof of the said pupils; and William Wadderstoun being charged to make payment of the bond at the instance of the said three daughters and their husbands, as assignees constituted after their majority by their two tutors; he suspended upon this reason, that he offered to prove by the oath of James Wadderstoun, one of the said tutors yet alive, that the sums in the said bond were satisfied and paid to him and the co-tutor, except the odd thirty merks.
Answered for the chargers, That, however, during the tutory any charge at their tutors' instance might have been taken off by their oaths; now the office being expired, the tutors who are functi cannot depone to the prejudice of their former pupils, to whom they granted virtute officii the assignation charged on; more than if after count and reckoning a tutor found liable in a balance, having granted in payment thereof an assignation to any effects due to himself, it could be pretended that his oath could prejudice the assignee; 2do, One of the tutors who were conjunct in the administration being now dead, the other's oath can no more be taken than he could act by himself; and both being cocreditors in the bond, as one of them could not charge without the other's concourse, neither can one discharge without the other; nor could this tutor's oath afford recourse against the representatives of the other tutor. And here the surviving tutor and the suspender are brothers-in-law, who may collude to the charger's prejudice.
Replied for the suspender, The manner of probation by the tutor's oath is in this case most competent; because the bond charged on was granted to the tutors nominatim, in contemplation of a disposition granted by them to the suspender, of some moveables belonging to their pupils. And as the suspender could have been charged for payment at the tutors' instance, it is competent to him to instruct any reason of suspension by the tutor's oath. And the oath of any one of the tutors is sufficient, seeing that would give recourse to the chargers, against the other's representatives.
The Lords found, that the tutor's oath could not prejudge the chargers.
