BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Mr Edgert and Abraham Edins Merchants in Rotterdam, and Patrick Home Writer to the Signet their factor v Robert Hunter Merchant in Edinburgh. [1707] Mor 13196 (20 March 1707)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Mor3113196-002.html Cite as:
[1707] Mor 13196
Mr Edgert and Abraham Edins Merchants in Rotterdam, and Patrick Home Writer to the Signet their factor v. Robert Hunter Merchant in Edinburgh
Date: 20 March 1707 Case No. No 2.
A declaration upon faith and honesty, given in Holland, by Anabaptists, (whose religion does not allow them to take an oath) sustained as equivalent to an oath.
Click here to view a pdf copy of this documet : PDF Copy
Mr Abraham and Edgert Edins and their factor having pursued before the Sheriffs of Edinburgh Robert Hunter merchant there, for payment of 430 gilders as the balance resting for some goods sent to him in the year 1696, he offered to prove by the pursuers' oaths, that the foresaid goods, were sent to him to be sold and disposed of on their risk, which he had done, and a part of the price could not be recovered, by the buyer's, proving insolvent; which ought to be allowed, Upon which a commission being granted to Alexander Carstairs, factor at Rotterdam, to take the oaths of Messrs Edins, who are Anabaptists; they first made faith before the Skepin in Rotterdam, and then before Mr Carstairs, declaring upon faith and honesty (their religion not permitting them to take an oath) that they gave no orders to the defender to sell the goods. Which commission being reported to the Sheriffs, and advised, they found it not proved that the defender was authorised to dispose of the goods, and therefore decerned. Mr Hunter, when charged on the Sheriffs' decreet, suspended for this reason, that the Sheriffs had committed iniquity in sustaining the chargers' declarations upon faith and honesty in place of depositions upon a point referred by the suspender to their oaths; because, 1mo, This is inconsistent with the commission, which only gave warrant to report the chargers' oath; 2do, It is expressly contrary to the laws of this nation, which dispense not with the oaths of any person, whatever opinion they may be of; 3tio, The power of dispensing with the terms of an oath is magis imperii quam jurisdictionis, at least falls not under the power of an inferior judge; and if such reports were allowed, all foreigners would plead exemption from taking the oaths.
Answered for the chargers; It is not the question what way Quakers or Anabaptists must depone by our law; for the chargers live in Holland, and by the law there such declarations are sustained. And they who refer any thing to the oaths of Jews, Mahometans, Persians, Papists, Quakers, Anabaptists, Indians, and Heathens, must take it in the form their religion allows; otherwise there could be no trading or commerce maintained with them.
The Lords sustained the declaration upon faith and honesty as equivalent to an oath, and found the letters orderly proceeded.
