The Lords ex officio examined witnesses as to the custody of a bond, but not as to the payment of it.
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There was a bond granted by the Laird of Minto as principal, Lugton, James Crichton, and the Earl of Eglinton cautioners, in anno 1641, to Adam Napier and his spouse in conjunct fee. Alexander Napier, as heir to his father, pursues this Earl of Eglinton, as heir to his father, for payment, who alleged, Absolvitor, because Minto having disponed his estate to his son, under express provision to pay the debt, the same was satisfied by Minto younger, and was retired lying by him a long time, or by Robert Urie, who had the trust of Minto's affairs and writs, and Minto younger being lapsus bonis, and Robert Urie being dead, the pursuer had either practised with Minto upon his necessity, or upon Robert Urie's friends to give him back the bond; and for evidence that the bond has been satisfied and retired; 1mo, It had lain dormant above these thirty years, without either payment of annualrent, or any diligence; 2do, The late Earl of Eglinton being forfeited by the usurpers, his creditors were appointed to give in their claims, or else to be excluded, and yet no claim was given in for this debt; and, therefore, craved that witnesses might be examined ex officio for proving of the points foresaid. The pursuer answered, That it was an uncontroverted principle in our law, that witnesses could not prove payment of any debt due by writ, nor take the same away; and as to the pretences adduced by the defender, they import nothing, for the delay of seeking payment, or claiming the sum, was because the said Adam Napier was with Montrose in the war, and his heir remained a minor, and his wife, was married to another husband. The defender answered, That the wife was liferenter of the sum, and she and her second husband would certainly have sought her annualrent, or claimed the sum, which takes off the excuse of the pursuer's minority; and albeit writ be not taken away by witnesses ordinarily, yet where the matter is so ancient, and the evidences so pregnant, the Lords use not to refuse to examine witnesses ex officio.
The Lords ex officio ordained witnesses to be examined as to the being of the bond in the custody of Minto, or his doers, being a matter of fact; but would not examine them as to the payment made thereof.
