The delivery back of a bond uncancelled must be proved scripto vel juramento of the receiver, if no force be alleged, and witnesses here cannot be received ex officio.
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In the action betwixt the said parties, wherein, by interlocutor, the Lords did did find, that the provisions granted by Mr William, who was then apparent heir to his father, in favour of his mother-in-law and her children, were not obligatory, as being founded upon a contract of marriage, whereby the said Mr William was to receive a considerable tocher, seeing the marriage was dissolved, within year and day, by the decease of his future spouse; it was farther alleged, That, by a prior bond and contract, he was obliged for the same provision. It was replied, That, if any such bond was granted, it was thereafter cancelled, and was not obligatory. It was duplied, That it was offered to be proved, by witnesses of near relation, that the bond was only borrowed up upon trust from the father, and cancelled by the son, without his knowledge or order. It was answered, That the same was only probable scripto vel juramento.—The Lords having advised, if, in this case, they might examine witnesses ex officio, as being an alleged trust betwixt father and son, did at last find, that it was only probable scripto vel juramento of the son, there being no force alleged, but a naked trust, especially seeing the only parties concerned were a mother-in-law and her children. See Appendix.
Fol. Dic. v. 2. p. 116. Gosford, MS. No 989. p. 667.
