Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION II.

Single Witness, in what cases sustained.
Subject_3 SECT. II.

Oath of the Debtor, if good against his Creditors?

Alexander Nairn of Drumkilbo
v.
James Ogilvie, Bailie depute of the Regality of Cupar in Angus

Date: 2 December 1713
Case No. No 312.

Click here to view a pdf copy of this documet : PDF Copy

James Ogilvie having commenced a reduction and declarator of extinction against Mr John Ogilvie his brother, when out of the kingdom, of two bonds granted by the former to the latter, upon a ground of compensation referred to his oath; Alexander Nairn, Mr John Ogilvie's creditor, did thereafter, before any act was extracted, arrest in James Ogilvie's hand and pursued a furthcoming against him as debtor to Mr John by those bonds.

The Lords found it relevant for James Ogilvie to prove by Mr John's oath, that he was debtor to James to extinguish the debt due by him to Mr John, the matter being rendered litigious before the arrestment, with this quality, that James should report Mr John's oath; for Mr John not being within the kingdom, and he and his brother conjunct persons betwixt whom there might be collusion, the Lords would not allow James to prove against his brother by holding him as confest to the prejudice of the arrester.

Fol. Dic. v. 2. p. 237. Forbes, MS. p. 7.