No exception will be sustained unless proponed at Litiscontestation.
Barrens, Dutchman, v. Hutchison
Date: 9 February 1631 Case No. No 45.
Found in conformity with the above. The quality resolves into an exception, and ought to have been proponed before litiscontestation, and a qualified oath protested for. In this case, it was the verity of the subscription which was at issue; not whether the deed was holograph.
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The Dutchman pursuing for a debt, which he instructed by production of a ticket marked with two initial letters of the defender's name; the verity of the which subscription being referred to his oath, and he compearing, and by his qualified oath granting the subscription, but declaring that he had paid the debt, the ticket being dated sixteen years since, and he never being pursued therefore; the party's contending, That this part of the deposition should not be respected anent the payment, because it was not referred to his oath; and that he ought not swear an exception which he ought otherwise to prove; and the defender alleging, That seeing the writ being imperfect was supplied by his oath, he might declare qualificate upon the whole cause, and upon the verity of the debt, if it was yet owing unpaid;—;the Lords found, That that part of the oath bearing payment of the debt ought not to be respected, and that the defender was not freed thereby; but if he would propone an exception of payment, (which the Lords found he might do, if he pleased, in the same state of the process) that they would suffer him to propone the same, and that he ought to prove it, as accords of the law, otherwise than by his own oath. Here the ticket libelled bore on the back payment of a part of the debt, and the presumption that the rest was owing was more considerable than any thing shown to the contrary.
Act. Craig.Alt. Russell.Clerk, Gibson.
Fol. Dic. v. 2. p. 300. Durie, p. 566.
