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David Aitken v James Finlay. [1702] Mor 9423 (10 November 1702)
URL: http://www.bailii.org/scot/cases/ScotCS/1702/Mor2209423-035.html Cite as:
[1702] Mor 9423
Whether a Party can be required to depone a second time upon special Interrogatories?
David Aitken v. James Finlay
Date: 10 November 1702 Case No. No 35.
A defender, to whose oath a libel had been referred, acknowledged he had received the money, but that it was in payment of a sum due by the pursuer. The pursuer offered to prove, by the defender's oath, that he owed him no sum, unless on a bargain which never took effect. Found incompetent to re-examine.
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In a concluded cause, David Aitken contra James Finlay in Balchrystie, the pursuer had offered to prove, by the defender's oath, that he owed him 300 merks, which he had given him on his promise to repay it; as also, had intromitted with thirty sheep, the value whereof he libelled, with L. 100 as their profits since. Finlay depones, and confesses he received the money; but adds, that it was in payment and satisfaction to him of as much due to him by Aitken, and that he never promised to repay it; and as to the sheep, acknowledges he took nine ewes of the pursuer's, but it was by virtue of an order and warrant from the Laird of Ardross, as his proportion of a militia horse, to the outputting whereof he contributed as a fraction. At advising, it was agitated among the Lords, whether the quality adjected to the oath, that what he got was in payment of a debt owing to him, was intrinsic, or if he behoved to condescend on the particular debt owing to him, and prove it.—The Lords did think he was not fully interrogated as he ought to have been, yet found the quality intrinsic, and would not burden him now with any further probation; but, as to the sheep, found the taking them by Ardross's order extrinsic, unless he produced it; though the summary execution for the proportions of the militia used seldom to be in writ. Then the pursuer offered yet to prove, by the defender's oath, that any ground of debt, to which he could ascribe his receiving of the money confessed, was only due upon a minute of tack betwixt them, which was never delivered, but depositated upon conditions, which never existing, the tack expired and fell.—The Lords considered this might involve the man in contradicting his former oath; for, if he should acknowledge the interrogatory as it is conceived, it would be plainly inconsistent with his former oath, bearing, he took it in payment and satisfaction of a debt owing him, and so might infer perjury; and being omitted, they refused now to re-examine him thereupon, and decerned; modifying the price of the nine sheep, with their bygone profits, to L. 50 Scots for all. See Qualified Oath.
Fol. Dic. v. 2. p. 15. Fountainhall, v. 2. p. 159.
