That a bond was deposited until performance of a condition, and that it had been surreptitiously taken away, was not allowed to be proved by the oath of the depositor, but only of the charger.
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In a suspension betwixt Mr James Williamson and Joseph Tennent, wherein the said James Williamson alleged, He was wrong charged to pay L, 1000 conform to his bond, because the said bond was never delivered to the charger, but after the subscription thereof was deposited in Abraham Adamson's keeping, to be retained by him until the like sum addebted to the charger by the suspender's brother, should be discharged by the charger, which he hath not done, but by the contrary, in the depositer's absence, and by the knowledge or consent, either of the party or of the depositer, he hath opened the deposter's chest, and taken out the bond, and registered the same, and charged the suspender, which conditions he offered to prove by the depositor's oath. The Lords found this reason relevant to be proved only by the oath of the party charger, or writ, but not by the oath of the depositer, but found, that they Would take the party's oath in presence of the depositer.
Act. Nicolson.Alt. Stuart.Clerk, Hay.
Fol. Dic. v. 2. p. 217. Durie, p. 280.
