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The defender being called for delivery and exhibition of a bond, which was libelled to have been put by the pursuer, and depositated by him in the defender's hands to the pursuer's use; and the defender alleging, That the depositation in his hands of the same by the pursuer, to the pursuer's own use, could not be proved but by writ or oath of the party-depositar, who was defender, or by the oath of the party-maker of the bond. This allegeance was repelled, and the summons in that part about the depositating thereof was found probable by witnesses, as the having of the same, or the having of the writs in other such cases are probable by witnesses.
Hay, Clerk.
Fol. Dic. v. 2. p. 226. Durie, p. 426.*** Spottiswood reports this case:
Robert Farquhar pursued Robert Wallace for exhibition and delivery to him of as bond made to the pursuer, and which the pursuer put in the defender's hands, to be made forthcoming to the pursuer, whensoever he should it. The question was about the probation, that it was put in the defender's hands by the pursuer, which the defender alleged could only be proved saripa vel jaramento partis: The pursuer contended it might be proved by witnesses even as the having of an evident is ordinarily proved by witnesses. The Lords sustained it to be proved prout de jare.
