Where the Qualified Oath imports a Denial of the Libel.
Robert Learmonth v. Lawrence Russell
Date: 9 December 1664 Case No. No 1.
Oath qualified was not sustained, importing compensation, but was admitted to be given by way of exception.
Click here to view a pdf copy of this documet : PDF Copy
Robert learmonth being pursued by Lawrence Russell, for the price of wines, and the matter referred to his oath, gave in a qualified oath, bearing, that the wines in question were sent to him, not to be sold till further order, and that therefore he kept them unsold till the end of the year.; and when they were in hazard of spoiling them for L. 12 Starting the ton; and that he that sent them was debtor to him by bonds and decreets in a greater sum It was alleged, Neither member of she quality was competent; not the first, because it was offered to be proved that the wines at that time gave L. 20 Sterling; and not the second, because it was an exception of compensation, and relative to writ.
The Lords sustained the first member of the quality, but rejected the second, and found it relevant to be proved, by way of exception.
Fol. Dic. v. 2. p. 296. Stair, v. 1. p. 238.*** Newbyth reports this case:
Lawrence Russel being creditor to Harry Moffat, and having arrested in Robert Learmonth's bands all sums due by him to the said Harry, which he referred to his oath, who deponed qualificate, viz. That the said Harry having brought some wines from France, he had put them in the deponent's cellars at Leith till he should come home, where they continued so long that they did spoil, whereupon he sold them at such rates and to such persons as could be got; and that he was not debtor in the money that was got for them, because the said Harry was debtor to him in greater sums. The Lords found they would receive Robert Learmonth's oath with the quality given in, that the wines by lying in his hands, by the debtor's order, were spoiled, and the price was such as he deponed upon; but would not receive that part of his oath, bearing that Moffat was debtor to him, unless he would instruct the same by writ.
