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Scottish Court of Session Decisions >>
Sir William Ashurd v Thomas Robertson. [1692] 4 Brn 13 (1 December 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Brn040013-0026.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir William Ashurd v. Thomas Robertson
Date: 1 December 1692
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Sir William Ashurd against Thomas Robertson. The Lords found that regularly this bond could not be taken away by examining witnesses ex officio to prove it was retired; but allowed the Ordinary to hear them, on thir points: Whether William Cokburn's oath might not be taken as to the way and manner how he came by it, being delivered blank, and having filled up his own name in it; seeing there was an instrument taken against him by Thomas Robertson before he assigned it. 2do, That he was now broke. 3tio, That he assigned it to Mr. William Dallas, his own son-in-law, a conjunct person, and so it is presumed to be without an onerous cause; and whether these specialities might not bring it to William Cokburn's oath, whether he had it for an onerous cause; or if only Ashurd's oath could be taken, if his cause was gratuitous; or if the witnesses in the instrument must be first examined as to the verity thereof; and if the Commissaries had committed iniquity in finding it only probable scripto aut juramento, seeing the nobile officium, by which witnesses only can be examined in such cases, does privately belong to the Lords of Session, and cannot be exerced by inferior judges.
