Found that a party might found on the concession and acknowledgment, in a paper granted by the contrary party, and at the same time might deny the other facts which made against him, alleged in the same paper.
Click here to view a pdf copy of this documet : PDF Copy
In an action of exhibition at Sir Patrick Home's instance, against the Earl of Home, of an old apprising, grounds thereof, &c. it being, among other things, alleged for his Lordship, That the disposition granted, by Sir Patrick's remote author, of the apprising, was lying by the granter the time of his decease; and, therefore, that it not being a delivered evident, another person who got a posterior disposition, and whom the Earl represents, ought to be preferred: And, for proving the allegeance, the Earl having produced a petition to the Lords, given in by Sir Patrick's immediate author, wherein he acknowledges, That the shids papers were lying by his cedent the time of his decease; the said petition, containing also a narrative of another matter of fact; which, if proven, or acknowledged, would overturn the Earl's defences: The question came to turn on this, Whether the Earl was obliged to take the said petition, he founded on, as it stands? Or, if he could found upon one part thereof that makes for him, and leave out another which makes against him?
And it was contended for the Earl, That he Was absolutely free to found on the judicial acknowledgment contained in the petition, without being obliged to take the contents of the petition entirely together; because, that even in a judicial oath, where the tie is greater; yet when it contains extrinsic qualities, the oath is divided; and any acknowledgment therein stands binding for the party, while the extrinsic qualities are rejected, unless otherwise proven. Now an oath is of more weight, because it a juratum est; whereas Sir Patrick had nothing to support the stories in his author's petition, but his author's naked and ultroneous assertion; for example, If, in the present case, it had occurred, that when Sir Patrick's author gave in the petition, the other party had alleged that the writ was undelivered, and referred the same to the petitioner's oath, and that he had deponed in the very terms of his petition, certainly it might have been pleaded, that the defence was proven by the oath, and yet still the petitioner was obliged to prove the other matters of fact in the petition, and consequently that the oath might have been divided, and not taken as it stood.
Answered for Sir Patrick: That oaths bearing extrinsic qualities do not concern the present case, which relates to one individual writ, containing matter of fact, which cannot be divided: And, if the Earl had adduced witnesses for proving the writ to be lying by the defunct, and if they had deponed in the terms of the petition foresaid, their depositions could not have been divided, but would have been taken entirely as they stood, to prove against the Earl as well as for him; so that seeing the Earl produced the said petition, and made use of it in modum probationis, it must be taken entirely as if stands, and cannot be divided.
It was further urged for Sir Patrick: That his allegeance was founded, not only upon the certain rule and principle of law, quod approbo non reprobo: But also it is clearly determined by the common law, in L. 7. ff. de bon Libert. where it is said, “Nam absurdum videtur, licere eidem partim comprobare judicium defuncti partim evertere.” And Eod. tit. “sed iniquum est, nec opportet liberto hoc indulgeri, quia non debet ex parte, obligationem comprobare, ex parte tanquam de iniqua quæri:” And L. 16.ff. de admin. Tutor: “Sed verius se putare, posse tutorem eam conditionem adolescenti deferre, ut id quod gessisset tutor in contrahendis nominibus aut in totum agnosceret; aut a toto recederet.” L. 11. ff. de Neg. Gest. “quod si in quibusdam lucrum factum suerit, in quibusdam damnum, absens pensare lucrum cum damno debet.” And the gloss upon that law says, “approbare quædam et quædam reprobare non potest quis, sed debet vel omnia approbare vel omnia reprobare.” And Jason upon L. 55.ff. de Legat 1. “approbatio quæ fit ut eodem instanti reprobetur, not debet attendi.” And Anton. Faber in his Ration. upon L. 13. § 26. ff. de Action. Empt. says, “Quid ergo si venditionem, pro parte approbare velim, pro parte vero improbare? Non sum audiendus, quia absurdum est, unum eundemque actum pro parte approbare, pro parte improbare.”
Answered for the Earl: That the common brocard quod approbo non reprobo, takes place in single facts, and where the subject is one, but not where the same is complex. For V. G. each party in pleading, may lay hold on what is judicially acknowledged by the other; and by taking instruments thereon it stands fixed: But when a variety of facts is alleged, a contradictor's laying hold on his party's acknowledgment of one, does nowise tie him to the acknowledgment of all the rest: For this were, as if when a charge and discharge is offered in a count and reckoning, and the parties obliged, by the act of sederunt, to acknowledge or deny, it should be thereupon contended, that the acknowledgement of one article, should tie to the acknowledgement of the whole, 2do, The Viscount of Stair plainly says, Inst. p. 523. That the brocard can only be understood as to the same individual:—So it is further cleared from the disposition of the common law, whereby it is evident, that “confessio non ultra prejudicat, quam quoad interrogantem, Gloss in L. Fin. ff. de interrog. in jur. fac. Et scriptura privata facit sidem contra proferentem, non pro eo, nisi ab adversario fuerit probata, L. 26. § fin. ff. Depos. Confessioni factæ in judicio datur fides contra se, sed non pro se, Gloss. fin. ad L. I. C. de Confess. Scriptura potest tenere pro parte, et pro parte non tenere, Gloss. in L. I. C. de Latin. Lib. toll.” And both Zoesius and Perezius state the present question very plainly, “Quæri possit an necesse sit litigans totam acceptet confessionem, an vero et partem tantum acceptare valeat, partem rejicere?” And both answer, “Si separata sint capitula nihil implicat partem consessionie acceptare, partem rejicere, Zoesius ad Tit. de Confes. Perez, ad. Tit. Cod. eod.”
Replied for Sir Patrick: That the citation from Stair is plainly contrary to what the Earl asserts; for there, treating of the jus accrescendi, in the case of legacies, he says, That the accrescence is necessary; and the portion accrescing cannot be rejected; because it befalleth by one integral right, which either must be accepted wholly, or rejected wholly, and therein approbans, non reprobat. As to the citations out of the common law, they do not meet the case: For L. 26. § fin. ff. depos. does not concern the case less or more: And Zoesius and Perezius are of a downright contrary opinion, particularly Perezius, upon the title of the Cod. de Confessis. N. 15. where he states the question, “Sed dubitatur an debeat totam acceptare confessionem, an vero sufficiat partem acceptare? Quod non videtur ex ratione, quod circa eundem actum non admittatur divisio; et in omni prope materia, totum acceptare debeat, aut reprobare.”
The Lords at first inclined to find, That the contents of the petition could not be divided, but must be taken entirely together; but, upon fuller information, and petition and answers,
Their Lordships found, That the Earl might found on the concession and acknowledgment in Sir Patrick's cedent's petition; that the disposition granted to him was lying by the granter the time of his decease; and at the same time might deny the other facts alleged, and offered to be proven in the same petition.
Act. Ipse.Alt. Sir James Nasmyth.Clerk, Gibson.
Fol. Dic. v. 1. p. 48. Bruce, p. 161.
