Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.
Date: Caffanbrald
v.
Captain Irving
11 February 1634 Click here to view a pdf copy of this documet : PDF Copy
Caffanbrald in Holland pursues Captain Irving upon a bond made to him, in anno 1624, for £5000. It was alleged by the defender, [to be null;] because it wants witnesses. It was replied, That the pursuer refers to the defender's oath, whether he did not truly subscribe the bond and the debt was truly owing the time of subscription. It was duplied, That although he would grant to subscribe the bond, it was also true that the same was paid; whereupon he would give his oath qualified. Whereunto it was alleged, That he could not swear his exception, but must prove the payment otherwise, juramento partis vel scripto. To the which it was answered, That the libel being founded upon a null bond, and the sum resting owing, the haill libel must be referred to the defender's oath, seeing the bond, being null, could not be a sufficient title to instruct the debt, without the defects thereof were supplied by his oath; and, therefore, his oath ought to be taken, not only upon the subscription, but also upon the verity of the debt. Which the Lords sustained.
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