Scottish Court of Session Decisions

Subject_1 QUALIFIED OATH.

Lord Eglinton
v.
Lady Forrester

Date: 13 November 1742
Case No. No. 6.

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A bill by Lord Elphingston to Lord Forrester in 1716 being sued up; and a question arising upon the prescription, which was appointed to be heard in presence; to avoid that dispute the pursuer referred resting owing to Lord Elphingston's oath; who on oath acknowledged the bill, and that it was not paid, but added that before granting the bill he was creditor in a greater sum to Lord Forrester, and that at a meeting a short time before Lord Forrester's death, he promised to give up the bill how soon it came to his hands. The first quality of compensation was found extrinsic agreeably to many precedents, because compensation supposes both debts resting owing, and therefore he must prove the debt resting to him. But the promise afterwards to give up the bill was found intrinsic, and therefore the allegeance resting owing was found not proved. Arniston, thought if only the verity of the subscription, and that it was not paid, had been referred to oath, the quality would have been extrinsic.