Holden as contest, sustained in a forthcoming, where the arrestee deponed, that he did not know how much he was owing to the common debtor.
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Irving having obtained decreet against Carruthers for making forthcoming of his rent, arrested for his master's debt, and the same being suspended, and Carruthers being first examined, and having deponed upon what rent he paid, and what rent he was due, and having been ordained to be re-examined on his rent in the year 1672, whether it was resting or paid, he deponed that he did not remember. Whereupon it was alleged, That he ought to be holden as confest, because he was obliged to depone positive, in so recent a fact of his own, whereof he could not be thought ignorant, and if this were allowed, it would afford a method for parties to shun their oath without hazard of perjury, for they could not be redargued upon their memory, as they could be in a palpable fact, and therefore, where in such cases parties remember not, the Lords, if they see cause, give them time to inform themselves, and then put them to a positive answer.
The Lords held Carruthers as confest, conditionally, that if he came and deponed positive within a fortnight, either acknowledging or denying the particular he should be received.
Fol. Dic. v. 2. p. 184. Stair, v. 2. p. 317.*** Dirleton reports this case:
The summons being referred to the defender's oath, who having declared, that as to what was referred to his oath, he could not remember, nor be positive, it was debated amongst the Lords, whether the oath did prove or not, or if the defender should be holden as confest, in respect he was to declare de facto proprio et recenti, and in such a case the presence of non memini is neither excuseable nor relevant. And so it was found by the Lords, though some were of opinion, that a person compearing and declaring upon oath, that to his knowledge he did not remember, could not be holden as confest, seeing he cannot be said to be contumacious, and to want memory is not a fault; and after a party has declared, it is only to be considered, whether the oath proves or not.
