Scottish Court of Session Decisions

Subject_1 OATH.
Subject_2 DIVISION I.

Oath in litem.
Subject_3 SECT. III.

If sustained against the Delinquent's Cautioners.

Andrew Forrester
v.
Merstoun and Ker

Date: 7 November 1684
Case No. No 7.

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Andrew Forrester, bow-maker, having pursued Merstoun and Ker, as cautioners, in an indenture for Merstoun, apprentice to the said Andrew, for damage sustained by him, the said apprentice having embezzled his bows and other goods, and disposed of them without his master's knowledge; and the libel being admitted to probation; the pursuer proved that the boy did steal several particulars, viz. bows, guns, &c. and also did prove several extrinsic thefts from other persons, and he craved, That he might have juramentum in litem, as to the quantities and prices, in regard it being a domestic theft, it was impossible for him to prove all the particulars otherwise than by his own oath. The Lords, finding there was a tract of thieving and embezzling of his master's goods by the apprentice proved, they allowed Forrester, the master, to condescend upon the particular species, quantities, and prices, and to give his oath in litem; reserving to the Lords modification after his deposition.

Fol. Dic. v. 2. p. 9. P. Falconer, No.92. p. 63. *** This case is reported by Sir P. Home:

1685. March.—Andrew Forrester, bow-maker in Edinburgh, having pursued Merstoun and Ker, as cautioners in an indenture for Merstoun, his apprentice, for damages sustained, by the apprentice stealing and embezzling the pursuer's bows and goods, and disposing upon them and without his knowledge; and the libel being admitted to his probation, the pursuer, to prove that the apprentice did steal from him several particulars, as bows, guns, and others; and also to prove, that he did steal several other things from other persons; and at the advising of the probation, the pursuer having craved that he might have juramentum in litem as to the quantities and prices, in regard it being a domestic theft, it was impossible for him to prove all the particulars stolen, otherwise than by his own oath; the Lords find, That there was a tract of thieving and embezzling of the master's goods by the apprentice proved, the pursuer ought to condescend upon the particular species, quantities, and prices; and allowed him to give his oath in litem, reserving the modification to the Lords.

Sir P. Home, MS. v. 2. No 716. p. 234. *** This case is also reported by Fountainhall:

1684. November 7.—In the case of Andrew Forrester, bower, contra Merstoun, his apprentice, it was alleged, from 1. 5. and 6. D. Ad Leg. Aquil., That though nimia sævitia præceptoris vel magistri erga discipulum culpæ annumeratur, yet modica castigatio permittitur, and that his taking the apprentice back was not a passing from his prior damages; for though dissimulatione tollitur injuria, yet that is only of verbal injuries, and not of our pecuniary interests. The Lords having this day advised the probation by witnesses led by both parties, found the apprentice's embezzling and taking away his master's goods without his consent, proved; and therefore ordained Captain Forrester to condescend and depone in litem upon the quantities and prices, reserving to the Lords, at the advising of his oath, to modify; as also, they suspended the letters against the Captain as to his obligements in the indentures, viz. as to the taking back the boy, or giving back the apprentice-fee, in regard the boy is proved to be vicious, so that the master could not safely receive him; they likewise assoilzied the cautioners in the indentures, as to the boy's absenting himself the times bypast, and the re-entry to his service for the years to come, in regard of the offer, and the Captain's refusal, but not as to such damage as the Lords shall modify. This interlocutor seems to dissolve the indentures, as to the three years thereof yet to run; and the reasons moving the Lords to assoilzie the cautioners were, because they had proved that Andrew Forrester had refused to take him back to his service, but declared he had nothing to say to his apprentice.

Thereafter Captain Forrester having given in a bill, craving his oath in litem might be taken, not only as to his apprentice's embezzlements, but also as to any other damages he had sustained by his absence and want of his service, his own expense at law, diversion from his employment, and loss of time, and gave in a general condescendence of his damnum emergens et lucrum cessans each of these ways; and they having given in an answer to this bill, and both being advised on the 15th of November 1684, the Lords ordained Andrew Forrester to condescend in special on the quantities, species, and value of the goods taken from him by his apprentice, how many golf balls, how many clubs, staffs, musket barrels, &c. and to depone anent the same; and refused to sustain the remanent articles of his condescendence.

And the Lords having advised his oath, extending to L. 700 Scots, modified L. 150 Scots for the damage he sustained by his apprentice. And they having given in a bill, craving he might be ordained to declare why he was more positive on twelve dozen of clubs than on a lesser or greater number, and quæ ratio credulitatis; and though he said the boy had lifted money from Collington, yet that Collington declared the boy never came to him to lift his master's money; the Lords adhered, on the 17th January 1685, quia juratum est.

Fountainhall, v. 1. p. 103.