John Brysson and Claud Henderson Merchants in Glasgow, v. The Duke of Athol
Date: 7 February 1710 Case No. No 2.
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In the action of forthcoming at the instance of John Brysson and Claud Henderson, against the Duke of Athol, as debtor to Jean Hardie, relict of Hugh Hardie merchant in Perth, James Hardie her brother, and John Hardie merchant in Edinburgh.
The Lords found, that Peers are bound to depone in common form, in cases where the libel is referred to their oath, as the only mean of probation.
Fol. Dic. v. 2. p. 53. Forbes, p. 395.*** Fountainhall reports this case:
The Duke of Athol being pursued by a merchant in Perth, for an accompt referred to his oath, he alleged, by the articles of the Union, he had all the privileges due to the English Peers, whereof this was one, not to he obliged to depone, but only to declare upon their honour. This point was fully debated in the case of Arnbath against the Duke of Gordon, where it was argued, that, by the English law, they had not that method of proving by oath, as in the common law and customs of other nations; and when they give in their articles upon oath, it is no more than an oath of calumny upon the matter, that they think they have reason to believe it to be true. The Lords were very cautious ere they proceeded to determine this, and wrote to the Chancellor and Judges of England by the President, to get some light and directions therein; but they shunning to give any opinion in so nice and delicate a point, the Lords found this day, that Peers were bound to depone where the oath was final and decisive of the cause, whatever they might plead in oaths of calumny or credulity, as oaths in litem, or on the verity of debts, or the like.
