Witnesses inserted in a bond were examined ex officio, whether the bond, which bore for borrowed money, was in renovation of a former bond.
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James Brown pursues the reduction of a bond of 300 merks granted by him to Matthew Lawrie, on this reason, that Matthew having married the pursuer's sister, he and his mother were bound in the contract of marriage to pay 500 merks of tocher, whereof 200 being paid, his mother gave bond for the remanent 300 merks, which she thereafter paid, and got the said Matthew his discharge; but after her decease, the said Matthew presented the said bond of 300 merks to the said James Brown, as being granted by his said mother, which the said James renewed by the bond in question, bearing borrowed money, and cancelled his mother's bond without taking a discharge, and now produceth the defender's discharge of the pursuer's mother's bond of 300 merks, and therefore craves that this bond, being obtained by circumvention, it might be reduced, and offered to prove by witnesses inserted in the bond, that the cause thereof was the mother's bond, which was cancelled when this bond was granted and subscribed. The defender alleged, That the witnesses inserted could not be admitted to take away this writ, bearing borrowed money, and to ascribe another cause thereto, which would overthrow that great security of the lieges, that writ cannot be taken away by witnesses, which hath no exception of the witnesses inserted, who, though they may be adduced for clearing any dubious expression in the writ, what was communed or meant by the parties, yet cannot alter the clear substantials thereof, by proving there was no borrowed money, but another cause, seeing it was the pursuer's fault and neglect to insert any other cause than the true cause, if it were so, but he might and ought to have inserted the true cause, as being a renovation of his mother's cancelled bond. It was answered for the pursuer, That the defender being commonly held to be malæ famæ, he dare not refer the whole reason to his oath, but offers to prove by his oath, that the cause of the bond was not borrowed money, as it bears, and by the oath of the witnesses inserted, that the true cause was the mother's bond which was cancelled, whereof he produceth a discharge, and therefore humbly craves that the Lords, ex nobili officio, would examine the witnesses accordingly.
Which the Lords granted in this case, upon the reasons foresaid.
