Scottish Court of Session Decisions

Subject_1 RES INTER ALIOS.
Subject_2 SECT. I.

Proof.

John Russel of Braidshaw
v.
James Baird of Chesterhall

Date: 13 January 1710
Case No. No 21.

An oath taken not in a formal process, but in the course of on attempt to discover the effects of a deceast, found not to be res jurata, so as to assoilzie the deponent, in an action against him.

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Lord prestonhall reported John Russel of Braidshaw contra James Baird of Chesterhall. Russel being a creditor to the deceased Bailie Baird, he pursues James Baird, for payment of L. 35 Sterling contained in a ticket, arid L. 60 Sterling in another granted by him to the said Bailie. Alleged The first sum of 35 Stirling is included in the latter and larger ticket of L. 60 Sterling, upon which I have sworn, you Russel having both deferred it to my oath, and interrogated me upon what I was owing to the deceased Bailie Baird, and I deponed that I owed him nothing but the last L. 60, the L 35 being then allowed and included. And it being both te deferente et interrogante, it is res jurata, after which there is no further inquiry but singly an juratum sit? Answered, That Bailie Baird having died in considerable debt, and particularly to Mr Russel, now pursuer, and several indirect methods having been used to smother, conceal, and embezzle his means and effects, application was made to the Lords to grant diligence for expiscating and trying where they were, and amongst others this defender was one, who, upon examination, acknowledged he was debtor to the defunct in these two sums, but that the first was comprehend in the last, and it was by mere omission he got not up the first ticket. Now, this can never be res jurata, it being on no process nor act of litiscontestation, nor had Russel then any right to these debts, his confirmation qua executor being long posterior to his deponing; and hoc non agebatur to pursue him for payment of them, but only to find out Bailie Baird's smuggled effects. Besides, the quality is purely extrinsic, and he could never exoner himself by his own oath, both the tickets being extant and found in the creditor's possession uncancelled. Replied, There is nothing more clear than that he has deponed parte deferente, and this same pursuer specially interrogated him what he owed the defunct, and by the laws of the world an oath is the end of strife; and the Romans, who understood the interest of mankind best, have said no less, Gaius, L. 1. D. DeJurejur. makes an unexceptionable defence, “maximum expediendarum litium remedium. in usum venit jurisjurandi religio;” and Paulus, L. 2. “Eod. Juramentum speciem transactions continet, majoremque habet authoritatem. quam res judicata.;” and L. 27. “Eod. loco solutionis cedit.” And the quality adjected is certainly intrinsic, the diagnostic of that being, if it answer the interrogatory affirmando et negando, as this precisely does. Being asked what he was owing, he answers, I owe him only the last sum of L. 60 Sterling, and it does not alter the case that both tickets are now produced; for L. 29. C. De Transact. says, “Sub praetextu novorum instrumentorum repertorum quæ generali transactionis finita sunt rescindi prohibent jura.” So careful has law been to preserve this exception unquarrellable, that an oath once deferred, no supervenient nor emergent instruction can diminish its authority; and in the case between Sochan and Balbarton, No 20. p. 14034. the Lords found an oath probative though taken in a deserted arbitration; and there be many cases in law where a party may have another's obligation lying beside him, and yet not one sixpence due, as Grotius says, “Ad debitum constituendum non sufficit obligatio nisietiam et nandum sit dissoluta,” The Lords considered his oath was taken in no formal process, but in an extraordinary tria; and that Russel, the pursuer now, had then no tile to these debts; therefore they found it was not res jurata so as to assoilzie Mr Baird; for though what he swore might be true, yet the law did not authorise the judges to believe it, but he must prove the quality of his oath some other way.

Fol. Dic. v. 2. p. 347. Fountainhall, v. 2. p. 553.