Where resting owing is referred, are payment, or satisfaction, or payment to a third party, at the pursuer's desire, intrinsic?
Blair v. Balfour
Date: 18 June 1748 Case No. No 24.
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Blair in Errol, as creditor to Paterson of Dunmuir, having arrested in the hands of Balfour of Dunbog and in the furthcoming the pursuer having referred to Dunbog's oath what he was resting owing to Dunmuir at the time of the arrestment, be deposed, that he was resting to him by bond the sum of L. 2932 Scots, but added several qualities, partly resolving in payments, partly in compensations, and, inter alia, that he had paid to John Imire, town-clerk of Cupar, at Whitsunday 1735, the sum of L. 833 : 6 : 8d. upon a decree of furth coming at his instance against the deponent for a debt due by Dunmuir, but which decree he did not produce.
On advising this oath, a general topic was broached from the Bench, viz. That in all cases where testing owing is referred to oath as a general denial of resting owing would be sufficient to exoner the defender, it were wrong that because a man has but of tenderness condescended upon the manner in which be made the satisfaction, his oath should not be held probative of every thing deponed, whether a proper payment or not. But as this was to overturn what had been so long deemed the settled principles of our law, so it could at no rate apply to this case where the payment was deponed to be made in consequence of a decree for unless for the decree be produced the debtor is not exonered but might be obliged to pay over again.
Accordingly the lords refused to allow this payment till the decree should be produced.”
Fol. Dic. v. 4. p. 204. Kilkerran, (Oath.) No 2. p. 359.
