Witneses were ex officio sustained to take away an exception, that the bond craved to be paid was instrumentum apud debitorem; the manner of delivery being most special.
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Southside having right to a bond granted by Richard Cass, did transact therefor with Charles Cass's curators, as being heir, or apparent heir, to the said Richard, for which he got bond from the said Charles, with consent of his curators, for 5500 merks; against which transaction, Charles being reponed by a decreet of reduction, and both parties put in their own place, Southside did pursue the said Charles Cass, as representing Richard, for payment of the said bond. It was alleged for the defender, That the bond, which was the ground of the pursuit, was in the defender's own hands and possession, and instrumentum apud debitorem repertum præsumitur solutum, It was replied, That the said, bond was only delivered in contemplation of the transaction; and the pursuer craved, that the depositor, in whose hands the bond was put, with a translation thereto, and Mr John Smith, who were the defender's curators, and others who meddled in that transaction, might be examined ex officio. It was duplied, That the bond being now retired, and in the defender's keeping, that debt could not be proved but scripto vel juramento. The Lords did sustain the summons and reply, notwithstanding of the defence and duply, and ordained witnesses to be examined ex officio, because the manner of the delivery of the bond, and the cause thereof, were so evident, and the probation so strong and pregnant.
Fol. Dic. v. 2. p. 216. Gosford, MS. No 349. p. 168.
