No exception will be sustained unless proponed at Litiscontestation.
Kinlochy v. Lord Conservator
Date: 1 July 1624 Case No. No 44.
It was referred to oath, whether a bond wanting witnesses was holograph. The defender acknowledged, but added, the debt was paid. The quality found extrinsic.
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The Conservator being pursued by one Kinlochy, for payment of money contained in his bond, against which pursuit, he alleging nullity of the bond, because it wanted witnesses; whereto it was replied, That it was holograph, which was referred to the party's oath; and he being sworn thereupon, deponed, that the bond was his hand writ, but that he took it on his conscience, that he had truly paid the sum therein contained, to the person to whom the bond was made many years since; which bond was given to him out of his own charity without any onerous or other necessary impulsive cause to the person to whom he was bound being his near kinsman for his help there being more than thirty years since the date thereof, and the person to whom it was given living many years after the bond who died but lately in a poor estate, aod who, if it had been unpaid, would not have omitted or delayed so long to have sought it; and it being found by his executors since his decease, who had made Kinlochy the pursuer assignee thereto, he had good reason to defend himself against that pursuit; which oath being considered by the Lords, they found, that the oath confessing the hand-writ proved the reply, and had no respect to the second part of his declaration bearing the payment; seeing that was an exception which he could not swear himself, to import his liberation, not being referred to his oath; and so the Lords divided the deponer's oath, which usually is respected ever conjunctly as the same is given.
Clerk, Hay.
Fol. Dic. v. 2. p. 299. Durie, p. 134.
