It was alleged, that a bond had been surruptionsly taken from among the debtor's writs. Not allowed to be proved by witnesses, but the creditor examined.
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In a double poinding, Sir William Scot against the Creditors of Sir Thomas Dishington, the Lords found a bond produced by William Dishington, brother to Sir Thomas, one of the creditors, not to be a good writ, whereupon he could desire to be answered as a creditor, seeing it was never delivered to him by the maker, but by the contrary, the same remained ever in the custody and keeping of the said Sir Thomas and his wife, after whose decease (Sir Thomas's self being then out of the country) the said William at his own hand, he being then in service with Sir Thomas's wife, took the bond out of a coffer pertaining to the said Sir Thomas, and told his wife where the same was among these other writs within her dwelling-house, where she died; which allegeance was found relevant, albeit the bond was since then registered by the said William, and that comprising had also followed at his instance thereupon; and because the proponer offered to prove the exception foresaid by witnesses, the Lords before they would give an answer to that, if it was probable by witnesses, (which they found hard to be done tending to destroy the bond) ordained the party to be examined ex officio, who being examined confessed the same, and so the bond was not sustained.
Act. Cunningham.Alt. Stuart, Oliphant & Burnet.Clerk, Hay.
Fol. Dic. v. 2. p. 217. Durie, p. 366.
