A bond being prescribed, the pursuer alleged he might prove resting owing by the defender's oath. Found the defender was not obliged to give his oath; and if he should confess, he was not bound in foro humano to pay.
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Napier of Kilmahew, as executor to Sir George Maxwell of Newark, pursues Sir Hugh Campbell of Calder, for payment of a sum contained in his bond to the said Sir George in 1667. Alleged, 1mo, The bond is null, wanting the writer's name and designation. Answered, He can never quarrel the bond on that defect, because they referred the verity of his subscription to his own oath; whereupon there is a commission directed to Cockston, to take his deposition at home, in respect of his indisposition and age; and when he comes to depone, he denied that he ever signed any bond to Newark in 1667; whereupon they finding it was only a mistake in the extractor, the bond being truly dated in 1661, and he had made the figure like to a 7, allowed him a new commission to depone, if he did not truly sign that bond in 1661; which commission was neglected to be extracted, and so the term is circumduced for not reporting it. Calder applies by a new bill, representing, 1mo, That they ought to have furnished him with the act. 2do, They had disguised the date to preclude him of an obvious defence of prescription arising from the bond dated in 1661, and no pursuit for it till 1702, being 40 years thereafter. Answered to the first, The law does not oblige the pursuer to furnish the act in this case; and as to the second, it was a mere error in writing one figure for another. The Lords granted a new commission, on Sir Hugh's own charges, to be reported betwixt and a certain day, but declared they did not loose nor take off the circumduction; but if he should happen to die before the time of his deponing, the decreet should go out against him; but allowed him to be heard on the separate defence of prescription; against which, it was alleged by Kilmahew, that esto it were prescribed, yet that did not so take away the debt, but I may still prove it to be resting owing by his oath. Answered, Prescription being founded on so long a taciturnity and silence, it is reputed equivalent to a discharge, and passing from the debt, and a total extinction thereof; so that the debtor's confession that it was never paid, can neither revive it, nor make it convalesce. The Lords found, after 40 years prescription, the party was not obliged to give his oath, whether it was yet resting owing; and though he should confess it, yet he was not in foro humano liable for the debt, whatever he might be in foro poli et conscientiæ. Then Kilmahew replied on interruptions, by processes within the 40 years, and his own minority; which the Lords found relevant, and admitted to his probation.
