Scottish Court of Session Decisions

Subject_1 OATH.
Subject_2 DIVISION I.

Oath in litem.
Subject_3 SECT. VII.

Where the Oath in litem ought to be taxed.

Man
v.
Campbell of Ledchary

Date: 19 November 1737
Case No. No 23.

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In a spuilzie, the question being, how the quantity of goods spuilzied was to be proved, the defender pleaded, that though the oath in litem should be admitted instead of any other proof on the pursuer's part, yet he, the defender, aught to have a conjunct proof. Answered, Such conjunct proof is without precedent, the constant practice being per modum pænæ to admit the pursuer's oath in place of all other proof. In our ancient practice, this oath was subject to no modification, though afterwards a practice was introduced of obliging the pursuer, before deponing, to give in a condescendence of his damages, which the Lords modified, and afterwards obliged the pursuer to give his oath in litem to be a further check, in case the modification were too high. The Lords refused a conjunct probation, but ordained the pursuer, before deponing, to give in a special condescendence of the corns and straw spuilzied, and of the grounds of the estimate made by him. See Appendix.

Fol. Dic. v. 2. p. 11.