A bond having been deposited, until conditions should be performed, and got up irregularly, without performance, the depositary and communers were ordered to be examined, although the effect might come to be to extinguish the bond.
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In a contract betwixt Robert Lawder of Edringtoun and Sir James Douglas, the said Robert set a tack of some lands to Sir James, upon which contract he being charged, to fulfil the heads thereof, the said Robert suspends, alleging, That the contract was consigned in a depositar's hands, to remain undelivered while Sir James should fulfil the conditions agreed, whereon he condescended, and if he did not, the contract to cease; and Sir James Douglas having recovered the same by some unorderly means, the conditions not being kept, no execution ought to follow at his instance thereon; which he offered to prove by the depositar, and other trysters betwixt the parties, the time of the contract: And the charger alleging, That this was only probable by writ, or oath of party, seeing the allegeance tended to destroy the contract, which being a mutual contract, and now in his possession, could not be taken away by the depositions of any persons, except the party's own declaration, for the reason of suspension tending to destroy the contract, could not otherwise be admissible, albeit sometime the depositar's oath might be taken, to approve a security before it was delivered, when the party and depositar are pursued for delivery thereof; but where the writ is in the party's own hands, and the allegeance tends to destroy the same, it were an unheard of preparative to admit that manner of probation to destroy it; notwithstanding whereof, the Lords found no necessity to restrict the probation to the party's oath, but found that ante omnia, they would examine the depositar and trysters, ex officio, and thereafter they would consider the reason.
