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Weatherston v Her Tutors. [1665] Mor 9420 (00 June 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor2209420-029.html Cite as:
[1665] Mor 9420
Whether a Party can be required to depone a second time upon special Interrogatories?
Weatherston v. Her Tutors
1665.
June. Case No. No 29.
Tutors who had sworn to an inventary in a confirmation, were required to make oath again as to alleged omissions.
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In a process pursued at the instance of Margaret Weatherston, and John Lermont her husband, against her tutors, for making count, reckoning, and payment of her father's moveables pertaining to her; it being alleged, That they could not be further charged than the inventory contained in her father's confirmed testament; it was answered, That the inventory being given up, and confirmed by the tutors themselves, the pursuers offered to prove, by their own oaths, that they intromitted with more than was confirmed, and greater prices than those confirmed. Replied, That they were not holden to swear contrary to the oath in testament. Answered, Sibi imputent, and tutors giving up inventory in name of their pupils, should do it so faithfully, as they may not be liable to circumvention and omission therein, else minors could be in no security, who, in such cases, are more privileged than others.
The Lords repelled the allegeance, and ordained the tutors to swear; but withal, if any thing after oath should be found omitted, or ill appretiated, that the same shall be confirmed by a dative before sentence.
Fol. Dic. v. 2. p. 14. Gilmour, No 151. p. 107.***Newbyth reports this case:
1665. June 22.—Margaret Weatherston being executrix confirmed to her father, and the inventory being given up by her tutor, who made faith thereupon, in regard of her minority, the said Margaret being now past tutory, pursues her tutors for count and reckoning of their intromissions as her tutors; the account being produced, it is offered to be proven, by the tutors oaths, that they had intromitted with more goods, and had got greater prices, than those contained in the inventory, and for which they ought to be countable. It is alleged by the tutors, That they cannot now depone, least it infer perjury; and that the pursuer has no right to these goods, ill appretiated or omitted, till they be confirmed.—The Lords found, that the tutors ought to depone, both as to the prices received, and as to the intromission; and found, that it could not infer perjury against them, having given their juramentum credulitatis at the confirmation of the testament; but found, that the pursuer behaved to confirm, and take a dative ad omissa before extracting of the decreet.
