Scottish Court of Session Decisions

Lord Curriehill, who delivered the leading judgment, said—The suspender's averment is that the payments he alleges were made and accepted as payments of this specific debt. The respondent depones generally that they were not, but in answer to the most of the specific questions put to him, his general answer is, “I don't recollect.” This cannot be said to be an admission of the suspender's averments, and in that sense the oath is certainly not affirmative of the reference. But, on the other hand, when a party says he does not recollect in a reference to his oath, there is a distinction betwixt a thing which he cannot be expected to recollect and a thing which is a factum proprium and of recent date, so recent that he might reasonably be expected to remember it. In the latter case the circumstance is regarded as a refusal to depone. The party does not incur the pains of perjury, but he is held confessed as one who declines to answer. This is a well-known principle in the law of evidence. “Such negative oath when it is emitted upon a recent fact, of which the swearer cannot, from the circumstances of the case, be presumed ignorant, is considered as a concealing or dissembling of the truth.” (Ersk. 4, 2, 14.) The question is, does this case fall under that rule or not? That the matter was factum proprium there can be no doubt. But was it of so recent a date that the charger could not reasonably be expected to remember it? I don't think he was in that position. The facts all occurred since March 1864, and the oath was emitted in November 1865. Therefore they were matters which it would be unreasonable to suppose he could have forgotten. That is enough for the decision. But it may be observed that not only were the facts recent, but during the intervening period, they were brought under the charger's notice in the record, in which they were most specifically detailed, and in which answers were judicially made for him, and of course under his instructions.