Where the Qualified Oath imports a Denial of the Libel.
Sir Patrick Home v. Mr Robert Colt
Date: 20 February 1685 Case No. No 7.
One examined upon oath, whether money he had lent to a corporation belonged to a third party, deponed, that party (now dead) had put money in his hands, but afterwards recalled it. The quality found intrinsic.
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The case between Sir Patrick Home and Mr Robert Colt, Advocates, about the means of one William Hepburn, sutor in the Canongate, was heard. Hepburn having been examined on death-bed, on a petition given in by Sir Patrick Home to the Bailies of Edinburgh, if the money he had lent to the Incorporation of the Cordiners there, was the money of Captain Stewart, to whom Sir Patrick was confirmed executor? He confessed, the Captain, a little before his death, had laid L. 100 Sterling in beside him, but that he afterwards called for it, and divided it amongst his soldiers. As also the Deacons, and Masters of the said Trade, being examined, (which the Lords found irregular, to examine a man's debtors, to whom the money belonged,) some of them declared, he called it Captain Stewart's money, which he might do, under this pretext, to seek better caution for it. This cause being advocated, and the oath of Hepburn alleged to contain an extrinsic quality, and that he ought to prove his restoring the money to Captain Stewart, the Lords, on Castlehill's report, found the quality intrinsic, and therefore assoilzied. See 1st July 1624, Kinloch against Lord Conservator, infra, h. t.
Fol. Dic. v. 2. p. 296. Fountainhall, v. 1. p. 342.
