It was referred to a party's oath, whether he had, at subscribing a bond, affirmed himself to be major. He deponed, that he did not remember. Found, that he could not be called upon to depone again more particularly.
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Mr James Wemyss of Lathocker's son, seeking reduction of a bond, granted by him to Mr Richard Maitland, upon reason of his being then minor; and the defender alleging, That, at the subscribing of the bond, the pursuer affirmed, and protested, that he was major; which exception being found relevant, the defender referred the same to the pursuer's oath, who, by his oath, deponed, that he remembered not if he did then affirm or protest himself to be major or not; and further deponed, that he could not declare to his knowledge, so far as he could remember: At the advising of the process, it being contraverted by the defender, that, seeing the pursuer had not deponed upon the exception positive, and had not denied it expressly, being in facto proprio et recenti, which binds him in law to answer determinately, and not to say nakedly, that he remembers not; that, therefore, he ought yet either to depone affirmative or negative, or else the exception ought to be found proved. The Lords repelled the objection, and found the oath, as it was conceived, sufficient to condemn the defender, for the pursuer could not be compelled to depone further, than as he remembered; and having deponed so, the same was found enough, and was found not to prove the exception.
Act. Stuart.Alt. Gilmor.Clerk, Gibson.
Durie, p. 887.
