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SCOTTISH_Shaw_Court_of_Session

Page: 369↓

Hunter

v.

Geddes No. 115.

Court of Session

2d Division F.

Jan. 29 1835

Lord Jeffrey, Lord Glenlee, Lord Meadowbank, Lord Medwyn, Lord Justice-Clerk

John Hunter, W.S., Pursuer.— D. F. Hope— Anderson. George Geddes, Defender.— Skene— Pyper.

Subject_Proof—Reference to Oath.—

1. Terms of an oath on reference which held to prove a debt to be resting-owing, although the party, in conclusion, deponed generally, that it was not resting-owing—he having assigned as the reason, that the creditor was satisfied that the money had been accounted for, whereas the preceding part of the oath was inconsistent with this statement. 2. How far competent to refer to documents in taking an oath on reference.

The pursuer, Hunter, as trust-assignee of Charles Macdonald, late agent at Huntly, for the Aberdeen Banking Company, raised an action against the defender, Geddes, for payment of £300 alleged to have been advanced to him by Macdonald, and referred the whole cause to the oath of Geddes. A commission was granted to take the oath at Aberdeen, when the following procedure took place:—

“Whereupon appeared the said George Geddes, who being solemnly sworn and interrogated, depones, That he is a farmer at Haddoch: That in 1829 he resided at Haddoch, which is about three miles and a half from Huntly. Depones, That he knows Mr Charles Macdonald, late bank agent in Huntly. Depones, That he knows Cornhill of Park: That there are several markets held there in the year: That there is one about the middle of May: That the deponent is in use to go to the markets held in that place: That he thinks he was there in the month of May, 1829: That he thinks, but is not sure, that the market-day in that month that year was on the 14th day of the month. Depones, That he took money with him to that market; and he thinks the amount was between £300 and £400: That he recollects where he got that money: That he got some part of the money from the said Charles Macdonald, on the deponent's father's account: That the money so got from Mr Macdonald amounted, as he thinks, to about £300: That he thinks he got this money from Mr Macdonald the day previous to the said Cornhill market: That the deponent was in Huntly the day previous to said market: That he saw Macdonald in Huntly on that day, and in the banking-office at Huntly: That Mr Macdonald said, in answer to the deponent's enquiry, that he, Macdonald, did not know how much money the deponent's father had at his credit in the bank. Interrogated, and desired to state what further took place? Depones, That Mr Macdonald gave the deponent the sum of money before deponed to, on the deponent's father's account, and said that he would afterwards explain how the deponent's father's account stood: That the deponent gave an acknowledgment to Macdonald for the sum so received from him, and this was all that took place. Interrogated in what terms the said acknowledgment was? The question objected to as incompetent, in respect that the pursuer's proof must depend upon the result of his reference to oath, and that he cannot prove his case by any reference to a writing, either founded on and found to be inadmissible, or of which he has given no specification or notice. Answered, that whatever might be the effect of this objection in a question with a third party, there could be neither incompetency nor surprise in obtaining from the party himself a full statement of all the circumstances that occurred, and of all that he did in the business; and the pursuer's counsel added, that he was now willing that the defender, to assist his memory, should look at No. 3 of process, if he wished to do so. The Commissioner, in respect it is not competent to examine a party upon oath, on the terms of a written document not founded on, sustains the objection.

“Whereupon the pursuer appealed to the Lord Ordinary.

“Interrogated whether, and when, if ever, the deponent again saw the said Charles Macdonald, relative to this matter? Depones, That he frequently saw Macdonald subsequent to the said market, but he does not recollect how long after the market it was when he next saw Macdonald. Interrogated, What passed between him and Macdonald subsequently relative to this transaction? Depones, That at one of the said meetings with Macdonald, he told the deponent that his father had not so much money in the bank as the £300: That Macdonald said, that the deponent's father had about £112, 10s. in the bank: That at the time of this meeting the deponent's father was dead, having died in December, 1828, and previous to the time the deponent received the said money from Macdonald: That Macdonald said at said meeting, that to save the deponent the expense of confirmation, he (Macdonald) would make the deponent's father debtor to the bank, in the difference between the said £300 and £112, 10s. Interrogated, Whether Macdonald said any thing more on this occasion? Depones, That Macdonald said nothing more. Interrogated, What deponent said in answer to what had previously been said by Macdonald? Depones, That he said nothing: That the deponent allowed Macdonald to please himself in the matter. Interrogated, When this meeting with Macdonald took place? Depones, That it was, as he thinks, in the month of September, 1829. Depones, That he never had any further conversation with Macdonald relative to the said transaction. Interrogated, Whether the deponent ever expede a confirmation to his father? Depones, That he did. Depones, That his father was a farmer and cattle-dealer. Interrogated, Upon whose authority, or on what ground, he applied, in May, 1829, to Macdonald for money on his father's account? Depones, That he applied for it on the ground that he had been appointed executor by and for his father. Interrogated, Whether he knew that Macdonald subsequently became bankrupt? Depones, That he did hear that Macdonald became bankrupt in 1830. Interrogated, Whether, in the present year, the deponent had a meeting with Macdonald on the subject of the said transaction? Depones, That he saw Macdonald in February last: That he called on him in consequence of a letter from the pursuer, Mr Hunter, to enquire how he had been applied to about the transaction: That Macdonald said that he had no recollection of the transaction, and promised to give the deponent a letter to the pursuer on the subject: That he did not offer Macdonald any money on this occasion. Interrogated, Whether he ever offered, or gave to Macdonald, on any other occasion, any money, with reference to the transactions above deponed to? Depones, That he never did. Depones, That he never paid back any part of the sum received from Macdonald before deponed to. Interrogated, Whether he is willing to produce the appointment of himself, as executor to his father above-mentioned? Depones, That he is. Depones, That he supposes it is at home. Interrogated, Whether, at the period when he drew the said sum of money from Mr Macdonald, he had expede a confirmation to his father? Depones, That he is not sure whether he had or not, but he rather thinks it was after. Interrogated, If he has in his possession, and is willing to produce this confirmation? Objected, that the pursuer is not entitled, under this reference, which is a transaction depending entirely upon the oath of the defender, to refer to the tenor of, and still less to require him to produce any written document. The Commissioner sustains the objection, and the question was passed from. Interrogated, Whether the bank account of the deponent's father is in his possession, or was ever exhibited to him? Depones, That he received from Mr Macdonald a copy of his father's bank account, as he thinks in September, 1829, and at the same time of the conversation before deponed to. Interrogated, Whether the balance on said account, as in the beginning of May, 1829, corresponded with what Macdonald at that time stated it to be? Depones, That it did. Interrogated, If he is willing to produce said account? Objected to for the defender's counsel, that this question should not be put, and the Commissioner sustains the objection. Depones, That he does not recollect of having stated any objections to Macdonald to the account furnished by him. On the deposition being read over, the defender's counsel called the deponent's attention to that part of the deposition which states, that the deponent never gave back, or offered to Macdonald on any occasion, any money, with reference to the transactions before deponed to, depones, That the deponent's father had a cash-account with Macdonald, as agent for the Aberdeen Bank, and the deponent paid to Mr Macpherson, who succeeded Mr Macdonald as bank-agent at Huntly, the balance due on his father's cash-account, when the deponent received up the bond. Interrogated, How much he paid on this occasion? Depones, That he thinks it was £178, 10s., being the balance of the said £300. Interrogated, When this took place? Depones, That he does not recollect, but thinks it was about a year after Macpherson was appointed bank-agent. Interrogated, For what sum his father had a cash-credit? Depones, That he had a credit for £600. Interrogated, Whether he has any documents relative to his settlement with Macpherson, or the bank, on that occasion; and, particularly, Whether an account was rendered to him by Macpherson or the bank, of the balance he was called upon to pay? Depones, That he has the bond for the cash-account, but he has no recollection whether an account was rendered to him by Macpherson or not. And being called upon to produce the said documents, objected to as incompetent. And the Commissioner having heard parties verbally, sustains the objection. Interrogated, Of what articles the bank's account consisted at this time? Depones, That he does not recollect of what the balance was composed, but he paid the balance, however made up, and got up the bond as above deponed to. Interrogated, Whether, in giving up an inventory of what his father was possessed of at his death, on occasion of his confirmation, be included any sum as due by the bank to his father? Objected, that this question has no reference to the accounting between the defender and the bank, or any claim at the instance of Macdonald or the bank against the defender, but is plainly proposed for an irrelevant and invidious purpose. The Commissioner sustains the objection.

“The Commissioner was requested to put the general question, Whether the deponent is resting-owing the debt sued for? The pursuer objects to this question being put by the Commissioner.—All which is truth, as the deponent shall answer to God.”

This deposition having been reported to the Lord Ordinary, his Lordship, “In respect that the Commissioner has sustained several objections to the course of examination proposed by the pursuer, which ought to have been repelled—that the oath itself is in several parts ambiguous or inconsistent—and that it is not yet completed by answering the general question, of whether the debt pursued for is resting-owing or not;” before answer, appointed Geddes to be re-examined, and ordained him to come to Edinburgh for that purpose. The Lord Ordinary at the same time issued the subjoined note. ^*

_________________ Footnote _________________

* “The Lord Ordinary is fully aware of the danger and inexpediency of granting re-examinations, after an oath has been reported; but this is plainly a case of a very suspicious character, and in which it would be particularly unadvisable to narrow the undoubted privilege of a party referring to refresh the memory, and probe the conscience of his opponent, as well as to test his veracity, by all competent interrogatories, however minute and detailed. In the Lord Ordinary's opinion, the former Commissioner has unduly abridged this privilege, and that in several important particulars; especially—1st, By refusing to put the interrogatory, as to the terms of the acknowledgment given, or to allow the acknowledgment itself to be exhibited to the deponent; 2d, By refusing to put the interrogatory, whether he is willing to produce the account he says he received from the Bank, and which he had sworn, corresponded with what Macdonald had previously said as to the state of that account; and 3d, By refusing to order production of the documents relative to his final settlement of that account, the existence of which he, to a certain extent, admitted.

“As to the first of these points, the Lord Ordinary is clearly of opinion that it was quite competent to ask in what terms the acknowledgment was expressed, or more particularly, whether it contained a promise to repay the money to Macdonald.

“If there had been no writing on the subject, it seems scarcely doubtful that the deponent might have been asked, whether at the time he promised to pay back the money to Macdonald; and the question of competency plainly cannot be affected by the circumstance of the acknowledgment being in writing. As to the fitness of showing that writing to the deponent, the Lord Ordinary thinks there is as little doubt; not certainly for the purpose of rearing it up as a ground of obligation, or in any way evading the stamp acts, but merely for the purpose of refreshing his memory, and perhaps stimulating his conscience as to his having actually made such a promise—to which, if it had been verbal, it is thought he could not have refused to speak. By allowing such exhibition, it appears to the Lord Ordinary that there would not have been the least approach to any recognition of the writing as of any force or validity, either as an obligation or as evidence; and after such exhibition, as well as before, it must have been by the oath, and the oath alone, that the case would still be decided. If he swore that he never subscribed it, or that he subscribed it without reading it, there would be an end in this cause of all enquiry into the existence or effect of that acknowledgment; while, if he swore that he signed it knowingly, the oath would merely import, and ought perhaps merely to express, that having seen that writing, he is now certain that at receiving the money, he did promise to pay it back to Macdonald, whenever he might demand it; a fact which seems obviously material to the issue, especially if followed up by the questions, how he came to make that promise, and whether or why he broke it, &c.

“Upon the second point, as to producing the bank account, the matter seems still clearer. He not only refers to that account in his oath, but swears that it corresponded with a certain previous statement of Macdonald. Its tenor, in this respect, therefore, is truly a part of his oath, and being in his own possession, it seems to the Lord Ordinary, that it ought clearly to have been exhibited. It is material even to himself, that if his memory deceived him in this respect, the error should be corrected. It is still more material that the other party should not suffer by his falsehood or rashness, if by means of a farther or more sifting examination, the oath may be made consistent with truth. Accordingly, upon a similar ground, a re-examination was ordered in the case of Fraser, 27th June, 1809, Fac. Col., and very recently in that of Young and Pollock, 25th May, 1832 ( 10. Shaw, 570). The case of Cooper against Hamilton, which is most fully stated in Wilson and Shaw's Appeal Cases, Vol. II. p. 59, is still more decisive as to the right of a party, even without a re-examination, to see and to found on the tenor of all writings referred to in an oath of reference, though not produced to the deponent at his examination. The same observations apply to the third article above mentioned. If there be any such documents, the deponent is bound to refer to them to correct any misrecollection which may have been produced by the lapse of years; and the pursuer is entitled to see them, either to aid in clearing up such misrecollections, or to force the deponent out of a false statement. The Lord Ordinary has said, that the oath is in some respects ambiguous or contradictory. He alludes, in part, to the statement made peremptorily in the early part of the deposition, that the money was got from Macdonald on his (the deponent's) father's account, when it appears from the sequel, that the father had been dead for six months; and that the money, in so far as it was an advance, must therefore have been obtained on the deponent's own account only, but chiefly to the plain and unconditional admission near the close of the original examination, that he never afterwards gave Macdonald any money with reference to this transaction, and never paid back any part of the sum received from Macdonald before deponed to. Upon this statement the deposition is apparently closed, without objection or offer of explanation. And it is only upon reading it over, before signing, that, upon his attention being called to this admission by his own counsel, the deponent makes the statement as to a repayment to Macpherson, a succeeding bank-agent—as to which the account and documents already mentioned as withheld are referred to, and required to be seen by the pursuer. The way in which the statement proposed to be thus tested is made, seems to furnish a strong additional reason for allowing the test to be unsparingly applied.

“Reference was made at the debate to certain extracts from the bank books, by which the falsehood of the deponent's statement, as to the accounts furnished at the settlement made by him with that body, seem strongly established. The Lord Ordinary, however, is of opinion, that those cannot be founded on in this process to invalidate the oath. But as a re-examination is granted, he thinks their tenor should be previously communicated to the deponent and that, after this is done, he may be interrogated as to the way he reconciles them with his former statement. If he declines looking at them, or answering in regard to them, the oath must be taken as he makes it. But the consequences may be serious in relation to proceedings of a different description. The Lord Ordinary has required the defender to come to Edinburgh for examination, because the case is now so serious as to require the assistance of counsel, and his attendance here must be less burdensome than their journey to such a distance.

“The Lord Ordinary observes, that in some early cases, sifting questions are rejected, and re-examination refused ob metum perjuri, that is, as he understands, lest the party, when reluctantly driven to answer by the force of truth, shall contradict a false statement originally made, either from rashness or dishonesty; but he has no idea that any countenance can be given to so strange a scruple at the present day. The party referring has, at all events, a right to get all the truth that, by any legal method, he can extract from his opponent; and even as to him, he is plainly in far less danger of the pains of perjury if he is driven, whether by skilful interrogation, or exhibition of documents, to retract a false statement, originally hazarded, while still under examination in the civil suit, than if left to vindicate that false statement, after it has been made the instrument of scandalous injustice in a criminal action.”

The following examination thereafter took place:—

“Compeared George Geddes, farmer at Haddoch, who being solemnly sworn, and his former deposition having been read over to him, and interrogated, and his attention being called to that part of his former deposition in which he stated that he had received from Macdonald a copy of his father's bank account; and being required to produce the said bank account, depones and produces a document titled on the back—‘Mr John Geddes, farmer, Haddoch, 2d September 1830,’—which is marked by the deponent, Commissioner, and clerk, as relative hereto. And depones, that he received the same from Macdonald. And being interrogated, whether the said account now produced shows any payment made by Macdonald to the deponent in May 1829? the deponent, upon inspection of the said account, depones, that it does not. And being farther interrogated, depones, that the said account appears to have been balanced after his father's death, and by it there is stated to be a balance due by the deponent's father to the Bank;—but the deponent adds, that Mr Macdonald, at a previous meeting which took place, after the deponent had got the money, stated that there was a balance due by the Bank to the deponent's father, but that he would make the deponent's father apparently debtor to the Bank, by getting an order upon the Bank by a person of the name of John Geddes, who lived at Bodylaird, near Huntly; and Macdonald explained, that his object for doing this was to save the deponent from confirming. And his attention being called to that part of his former deposition, in which, being interrogated, ‘Whether the balance of said account’ (that is, his father's account with the Bank), ‘as in the beginning of May, 1829, corresponded with what Macdonald at that time stated it to be;’ and in which part of said deposition he deponed ‘that it did;’ and being now required to say whether the entry in the account now produced corresponded with what Macdonald stated at the time of delivering it? Depones, that it does not correspond with what Macdonald at the time stated the real balance to be. And being interrogated in what particular the statement of Macdonald differed from the account delivered to him? Depones, that it differed in this, that Macdonald stated that there was money due by the Bank to the deponent's father, while, by the account, his father is made debtor to the Bank. And being interrogated, depones, that he thinks Macdonald mentioned the sum which was due by the Bank to the deponent's father, but he does not now recollect what he stated it to be. And being farther interrogated, depones, that before he got up his father's bond to the Bank, he paid to the Bank the two sums of £100, and £147, 10s. entered in the account; and depones, that the last of these sums the deponent paid to Mr Macpherson, who succeeded Macdonald in the agency of the bank at Huntly, but he does not recollect to whom the first sum was paid, whether to Macdonald or Macpherson. Depones, that he never paid any other sums on his father's account, after his father's death, either to Macpherson or Macdonald. And the commissioner having directed the deponent's attention to the fact, that the £147, 10s., entered in the account as paid by him, bears to be dated 2d September, 1830, and that he has deponed that he made that payment to Macpherson as the successor of Macdonald, the deponent is required to say how he reconciles that with his previous statement, that the said account was delivered to him by Macdonald, at a meeting which he had with him as bank-agent? Depones, that he still thinks that the account produced was got from Macdonald, and that he does not think he ever got any account from Macpherson. And being farther interrogated, depones, that he is satisfied he got the account from Macdonald before he paid the £147, 10s., and that the account was got while Macdonald was bank-agent. And after his attention had been repeatedly called to the subject, depones, that he can give no farther explanation in regard to it; but adds, that his memory may have failed him, and that he may have got it from Macpherson; and if he did so, he cannot recollect whether he got another account from Macdonald or not. And being interrogated for the pursuer, what induced him to make the foresaid payments? Depones, that the cautioners in the bond were pushing him to get it up. And being interrogated whether, when he got the £300 from Macdonald, as deponed to in his former deposition, he gave an acknowledgment to Macdonald for the money? Depones, not that he recollects. And his attention being now called to his former deposition, in which he depones, ‘that he gave an acknowledgment to Macdonald for the sums so received from him;’ and being asked to reconcile these two statements, depones, that to the best of his recollection, he gave no acknowledgment. And being shown a document, No. 3 of process, and interrogated whether the signature adhibited to it is his signature? Depones, that he thinks it is. And the deponent being required to peruse, and having perused the said document, and being again required to say whether he gave any acknowledgment to Macdonald for the money he got from him? Depones, that he does not remember having given any, nor does he think he gave him the document which has just been perused by the deponent; but depones, that he won't take upon himself to swear that he did not give Macdonald an acknowledgment at the time, nor will he swear that he did not deliver to him the document which he has now read. And being interrogated whether he thinks it probable that he gave Macdonald the foresaid document? Depones, that he might, and he will not swear against it; but that he cannot recollect. And being interrogated whether, after receiving the £300 from Macdonald, the deponent never paid Macdonald any money on his own account? Depones, that he never did, and Macdonald never asked any, for Macdonald knew that none was due; and no demand was ever made on him, on Macdonald's account, till he received Mr Hunter's letter last winter. And being interrogated by the Commissioner whether he explained to Macdonald, when he got the money from him, on what ground the deponent had right to any money that might be due to his father by the Bank? Depones, that he told Macdonald that he was his father's executor, but he did not show him any confirmation in the deponent's favour, nor did he show Macdonald his father's will; but he believes Macdonald knew about it. And the counsel for the defender having required the pursuer, who has now stated that his special interrogatories are concluded, to put the general question of whether the debt pursued for is resting-owing or not; and the pursuer having declined to do so, he requested the Commissioner to put that question; and the pursuer having, under the special circumstances of the case, objected to the question being put, the Commissioner, in respect of the terms of the Lord Ordinary's interlocutor, conceives that the question ought to be put. And the deponent being interrogated whether the sum of £300, received by him from Macdonald, as previously deponed to, is still resting-owing by the deponent or not? Depones in answer, that Mr Macdonald was satisfied that the money was accounted for; and depones that the debt is not due, and that his reason for so deponing is, that as before stated, Mr Macdonald was satisfied that the money was accounted for. All which is truth, as the deponent shall answer to God.”

On advising the two depositions, the Lord Ordinary pronounced this interlocutor, adding the note below: ^* “Having resumed consideration

_________________ Footnote _________________

* “The Lord Ordinary is perfectly aware that he has nothing to do with the credit due to an oath of reference, and must give effect to it, if at all intelligible, however palpably and disgracefully false it may appear. But, in order to give effect to it, its true tenor and import must, at all events, be ascertained; and, where it is made up of a series of flat contradictions and glaring inconsistencies, this is not so easy. He supposes, however, that he must take the deponent's last statements, when positive, as entirely superseding the first; and reconcile minor incongruities, so as, if possible, to support his substantive averments. The oath is the pursuer's evidence, and it is for him to show, that resting-owing is sufficiently proved by its tenor. If it were entirely unintelligible, the defender would be entitled to be assoilzied. Now, the oath, in this case, certainly is not very intelligible in all its parts. But the Lord Ordinary is of opinion, that resting-owing is sufficiently proved by its tenor.

“He thinks the constitution of the debt, as a debt due to Macdonald, clearly enough established. The advance of the £300 by that person, on 13th May, 1829, is fully admitted; and though something is said of its being advanced out of the balance due on the father's account with the bank; yet, the true tenor of the oath is, not that it was actually so advanced—all that is said is, that the state of that account was not then known, but that an account would be afterwards rendered, from which it would appear. The nature of the debt was therefore in pendente (or at least unknown) at the time of the advance. If there was £800 at the father's credit, then it was a transaction with the bank. But if there wan nothing at his credit, it was necessarily an advance by Macdonald, for it is not pretended that the son ever had any account with the bank. Now, passing over the disgraceful contradictions as to what Macdonald said on the state of the father's account, and by payment of what sums that account was ultimately settled—there are two things very clearly proved by the oath. 1st, That a state of the father's account was furnished, with which the deponent was satisfied, and in terms of which he actually settled, by payment of the precise balance then specified. And, 2d, That he never paid, either to Macdonald or to the bank, any other sums than those composing that balance, subsequent to the advance in May 1829. Now, the account thus described, adopted, and settled by the deponent is at last produced by him, and its tenor is truly a part of his deposition; and taken along with the rest of that deposition, it clearly establishes these three things. 1st, That at the father's death, and in May 1829, there was nothing due to him by the bank; but, on the contrary, that he was indebted to it in the sum of £245, 10s. 2d, That the advance of £300 in May 1829 to the deponent is no where entered or noticed in that account, or at all recognised as a bank transaction. And, 3d, That the only payments he ever made were two sums (in April and in September, 1830), making together the precise balance of £245, 10s. due at the father's death, by the extinction of which, at the last of these dates, the account was finally closed, and the bond given up to the cautioners.

“The Lord Ordinary holds it, therefore, to be completely proved, by the oath, and relative productions made by the deponent himself, that the £300 was advanced by Macdonald personally to the defender; that it never was credited to the bank, or due to it;—and finally, that no part of it was ever repaid, either to the bank, or to Macdonald,—and that the whole is consequently still resting-owing to the person by whom it was advanced.

“If this be the true result of the facts established by the oath, it is supposed to be plain enough that the defender could not alter, or at all effect, that result, by swearing, that, in his opinion, the debt was not resting-owing. That is a conclusion in law over which he has no control. But, in truth, he has qualified his opinion in such a way, as to remove all difficulty. For all that he says in answer to that general question is, ‘that Macdonald was satisfied that the money was accounted for; and therefore, and for that reason alone, he thinks the debt is not resting-owing. Now, the Lord Ordinary conceives this to be clearly an extrinsic quality in the oath, if it be not something still more irrelevant;—for 1st, It is an averment, not as to any fact known to the deponent, but as to the state of another person's mind, from whom he does not say he ever received any statement of his satisfaction; who is, in fact, through his trustee, the pursuer of this action; and whom he represents, indeed, in another part of his deposition, as having professed to bave no recollection on the subject;—and 2dly, Unless the whole of the rest of the oath is supposed to be retracted, Macdonald's being satisfied was palpably no ground whatever for inferring that the debt was not resting-owing. The whole scope of the defence is, that it was the bank, and not Macdonald, to whom it was due. If it was ever accounted for at all, therefore, it must have been by the defender's subsequent payments to the bank,—the last and largest of which (if not both) he swears to have been made to Macdonald's successor in the agency, and long after the period of his removal. The only ground assigned for the legal inference (for it is no more), that the debt is not resting-owing, is therefore manifestly irrelevant to support that conclusion, even if it were a fact capable of being proved by the oath of the defender, instead of a most improbable and rash conjecture as to the sentiments of another person.’

of the debate, with the two several depositions of the defender, and whole process, finds, that by the tenor of the said depositions, the constitution of the debt pursued for is sufficiently established, and no facts deponed to, which import that it was ever paid, or in any other way satisfied, discharged, or extinguished; finds, therefore, that the pursuer has proved the debt to be resting-owing by the said oath of the defender; and, accordingly, repels the defences, and decerns in terms of the conclusions of the libel; finds expenses due, allows an account thereof to be given in, and remits the same, when lodged, to the auditor to be taxed, and to report.”

Geddes reclaimed.

Lord Glenlee.—No doubt the defender was bound to produce the account mentioned in his oath, and if the Court put a different construction on it from what he does, we are bound to give effect to it, and we did so in a late case. Now, from the account produced, it appears that no balance was due his father, and though he says the debt claimed is not resting-owing, that is because M'Donald was satisfied. He does not say on what grounds M'Donald was satisfied, but it is just a (simple assertion of his own, without telling us why; and it being plain that no such money was owing his father, either Macdonald or the bank must be entitled to recover, and I am for adhering.

Lord Meadowbank.—I agree.

Lord Medwyn.—There are many points in the Lord Ordinary's note I don't agree with. I know that if a party refers to documents, as confirming his oath, they may be produced, and his inference from them overruled if not supported by them. But when he does not refer to them himself, but is asked if he has documents, and is called on to produce them, I don't think that warranted by the law of Scotland. The only question is quid juratum est? and in determining this, we are not to take absolutely his own conclusion, because it rests simply on the assertion that Macdonald was satisfied, and taking all the oath together, I am inclined to think that that inference cannot be drawn. There is no statement in it, that Macdonald admitted that he had paid on his father's account. Then he says, his reason for holding that it is not resting-owing, is, that Macdonald was satisfied; but Macdonald's conversation, as detailed by himself, is not an acknowledgment that he was satisfied, and, therefore, though I don't agree with positions of the Lord Ordinary, I come to the same conclusion as to the result.

Lord Justice-Clerk.—I agree with Lord Medwyn as to the delicacy of setting up writings against an oath; but when a party refers in any way to documents as grounds of his deposition, they become truly parts of it. The acknowledgment here is certainly not to be looked at, but the account is totally different. He depones that the balance of the account corresponded with what Macdonald had stated it to be. Then it was right to have it produced, and it becomes necessarily part of the oath to which we are entitled to refer, as was decided in the case of Cooper, affirmed in the House of Lords. Then, when the general question was put, he merely says it is not resting-owing, because Macdonald was satisfied, and when we go back to that, he depones that Macdonald had said he had no recollection of the transaction, and I am, therefore, for adhering.

The Court accordingly adhered.

Solicitors: John Hunter, W. S.— M'Millan and Grant, W.S.—Agents.

SS 13 SS 369 1835