Scottish Court of Session Decisions

Subject_1 QUALIFIED OATH.

Sutherland of Forse
v.
Sutherland

1740, Jan. 29.
Case No. No. 5.

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Kinminity having got an indorsation from the poor woman to a bill of 350 merks, which she alleged to be in trust; he acknowledged the getting the indorsation, but said it was a gift. The question was, Whether this was intrinsic; and indeed if the circumstances were true, the thing seemed improbable; at least it seemed to be too great a donative. Several of us, particularly Royston, Dun, Murkle, et ego, were clear that it was intrinsic; but the President thought that when the facts set forth in the intrinsic quality seemed probable, he would believe the quality, but if the fact was improbable, he would not believe it, without further proof. This I could not agree to, or think that intrinsic or extrinsic could depend upon the Judge's opinion of the facts being probable or not, and I mentioned a decision, 13th June 1728, L. Badefurrows against Mr Francis Downie. However the Lords remitted to the Ordinary to give a proof before answer of the various circumstances at the time of the indorsation.