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Scottish Court of Session Decisions >>
Callander v Wallace. [1717] Mor 9416 (10 July 1717)
URL: http://www.bailii.org/scot/cases/ScotCS/1717/Mor2209416-025.html Cite as:
[1717] Mor 9416
Whether a Party may be required to depone super facto alieno? - Whether Oath of Party must be special?
Callander v. Wallace
Date: 10 July 1717 Case No. No 25.
A party was required to depone specially on the way and manner in which he had paid.
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John Callander of Craigforth pursues Hugh Wallace of Ingliston, for an account of iron-work, chimneys, &c. furnished to him in 1685, and referring the libel to his oath, he depones, he owed him nothing upon that account; and being urged to be more special, refused to say any more. Whereupon Callander gives in a bill, craving he might be re-examined, and ordained to condescend more particularly, if or not he received the goods libelled, and how he paid it; for in generalibus latet dolus.—The Lords thought there might be an error in the interrogatories; for, where the question is, are you resting owing such a debt? the special interrogatories for expiscating the matter of fact must be premised, before you come to the general, else one may be ensnared in a contradiction. But the Lords suspected the case here was, that Ingliston got these goods furnished to him when he was cash-keeper to King Charles, and so capable to get Callander payment of what the public owed him; and that Ingliston looked upon them as freely gifted, and therefore thought he had freedom to swear he owed him nothing; and that Callander finding he can be no more serviceable to him, craves payment thereof.—The Lords ordained Ingliston to be re-examined, seeing parties ought not to depone upon law, but only super facto; not whether they think them themselves obliged in law, but whether they received such goods, or sums, and on what account, and in what terms, or how they paid, or can exoner themselves of it, as gifted, or otherwise? And the Lords, at advising, will consider how far the qualities adjected are proper and pertinent, and prove themselves without any further yea or not.
Fol. Dic. v. 2. p. 14. Fountainhall, v. 2. p. 380.
