A person being pursued for exhibition of writs, it was found that he was not obliged to instruct how he put them away, otherwise than by his own oath; but that he ought to be special, as to whom he delivered them.
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Patrick Tailziefer pursues Gordon of Gordonstoun, for exhibition and delivery of certain evidents of lands, whereof Gordonstoun granted receipt to Mr William More, and obliged him to make them forthcoming. And in a competition betwixt Alexander Crawford, for whose children Tailziefer acts, and Gordonstoun, wherein Mr William More was called, Crawford “was preferred, and found to have best right to the lands,” and consequently to all the evidents thereof, and specially to Gordonstoun's bond, to Mr William More. It was answered, That albeit in the competition, Crawford was preferred; yet he derives no right from Gordonstoun, or Mr William More; nor can the preference import an assignation to Gordonstoun's obligement, to restore the writs to Mr William More, so that Gordonstoun can only be convened by this exhibition, in common form, “Referring it to his oath, that he had the writs since the citation, or that he had them before, and had put them fraudfully away;” and therefore, as to the having before citation, neither writ nor witnesses are admitted to prove the having, but only the party's oath, because the delivery of writs uses not to be upon written discharges, but parties deliver them de manu in manum, without considering whether they have given receipts or not.
The Lords found, That the pursuer derived no right from Mr William More to the receipt or obligement produced; and therefore found him not obliged to instruct how he put away these writs, otherwise than by his own oath; but found that he ought to be special therein, to whom he delivered them, and upon what account, unless Mr William More did concur in the exhibition.
