Where the Qualified Oath imports a Denial of the Libel.
Sinclair v. Sinclair of Barrock
Date: 18 December 1703 Case No. No 11.
Receipt of money being acknowledged upon oath, a quality that the same was imputable to other debts, than those libelled, not sustained.
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Sinclair of Southdun being debtor in several sums of money to Sinclair of Barrock, by bond and otherwise, pursues a declarator of extinction of these debts, and produces two receipts, and libels upon an article of 500 merks received by the defender, by and attour the sums contained in these receipts, which, with other articles, he refers to oath. Barrock depones, and acknowledges the receipt of the sum of 500 merks libelled by and attour the sums contained in the two receipts, and that he gave no receipt for the 500 merks, none being sought; and adds, that Southdun was debtor to the deponent in several other sums at that time, by and attour the sums contained in the bond and tack libelled upon.
At advising, the pursuer craved allowance of the said 500 merks. It was alleged for Barrock, That the receipt of the money was only proved by his oath; and the same oath bears, that other sums were due to him without writ, to which other sums he imputes the said 500 merks. It was replied, The quality that other sums were due to the deponent without writ is extrinsic, and must be otherwise proved than by his oath; for, if he deponed, that the payment was made and received in satisfaction of other debts not proved by writ, then the quality might be reckoned intrinsic.
“The Lords allowed the article of 500, merks, and found, that the defender's deponing there were other debts not proved by writ, did not prove, seeing he did not also depone, that the payment was given and received, in satisfaction of these other debts.”
