The maxim chirographum apud debitorem repertum, &c. extends not only to a bond found in possession of the debtor, but to an assignation found in possession of the cedent, and therefore, proof by witnesses to the contrary was rejected.
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Anna Fairly alleging, That she had obtained an assignation from umquhile Mr Alexander Dick, as factor for his father, in satisfaction of a sum due to her by his father, pursues for delivery of the assignation. The Creditors alleged, That the assignation being in the hands and custody of Mr Alexander, the granter, it must be proved by writ, he being dead, that it was delivered, and not by witnesses; for there is nothing more frequent, than parties, upon intentions, to subscribe bonds, assignations, and other rights, and yet do not, de facto, deliver them; or, if they have been delivered, to satisfy them and retire them, If witnesses were admitted to prove the delivery, or re-delivery of such writs, the lieges would be in extreme insecurity, contrary to our law, that admits not witnesses above an hundred pounds; and therefore chirographum apud debitorem repertum præsumitur solutum; which presumption cannot be taken away by witnesses. The pursuer answered, That though this holds in bonds, where there is a debtor, and no other adminicle to instruct the debt, yet this is an assignation, and the cause thereof otherwise instructed, and most likely to be truly done; and it is offered to be proved, that this assignation was delivered back to Mr Alexander, to be made use of as agent for the pursuer.
The Lords refused to sustain this member of the probation; but, because of the poverty of the poor woman, recommended the case to the creditors, to be favourable to her, and did forbear to write the interlocutor.
