Delivery of a writ probable by the notary and witnesses inserted in it, where it was not produced by the person in whose favour it was granted, but by a third party.
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Duncan Drummond pursues Colin Campbell for payment of a debt of his father, because, in a writ betwixt his father and him, the father had disponed all his moveables to him, and he had undertaken his father's debt, whereby the pursuer, as creditor, had interest to pursue him to pay this debt; the defender having alleged, That the bond and disposition was never a delivered evident, either to the father or to the son; but two blanks subscribed by them both were put in the hands of notary, to fill up the bond and disposition; but, before delivery, both parties resiled, and desired the notary to cancel and destroy them, yet eight or nine years after the notary gave them up to this pursuer, and neither to the father nor to the son; and the question being how this should be proved;
The Lords, before answer, ordained the notary, and witnesses inserted, to be examined ex officio, which being done, their testimonies proved as is alleged before. Then the question was in jure, whether the depositation of writs could be proved any other way, than by the oath of the party in whose favour the writs were conceived, he having the same in his hands.
The Lords found, that seeing these two writs were not produced by the father, nor the son, by and to whom they were mutually granted, but by a third party, in whose favour a clause therein was conceived, in that case, the deposition probable by the writer and witnesses inserted, and by the said testimonies found the writs null.
