Although delivery of a writ, is presumed by being in the hand of the party, in whose favour it was granted, yet it was allowed to be proved by witnesses, that a deed was found among the papers of the granter at his death.
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Umquhile Mr Hugh Cathcart having disponed all his estate, both heritable and moveable to Hugh Cathcart of Carletoun, his brother's son, and apparent heir to John Cathcart now of Carletoun, as heir to his father, pursues Corsclays for payment of a bond of 1200 merks due by Corsclays to Mr Hugh, secluding executors, The defender alleged, That he had equal interest, as nearest of kin to Mr Hugh, with the pursuer's father, the one being the brother, and the other the sister's son, and offered to prove that this disposition remained by the defunct, Mr Hugh, till his sickness, and was seized upon, amongst his writs, by Carletoun, in whose house he lived and died. It was answered, That this was only probable scripto vel juramento; for this writ being in the pursuer and his father's hand, the law presumes the delivery, and all the interest the defender could have, is but a share of the annualrents resting at the defunct's death; but if witnesses were admitted to take away writ, by proving it was by the defunct, it would endanger the most of all securities. It was replied for the defender, That though writ cannot be taken away by witnesses, in cases where writ is adhibited, as in proving the payment thereof, or the like, yet they are competent in all other cases, as in force, fraud, and in any sensible fact, necessarily inferring an exclusion of the writ, as the being thereof in the coffers or cabinets of dying persons, without which, there were no way to secure their interest, but any person that could be master of their writs, might re-deliver retired bonds, and fill up a blank bond, and deliver dispositions, and other writs, which, though the defunct had once intended, yet did not make the same effectual by delivery, nor did he insert a clause dispensing with the not delivery thereof.
The Lords found the defence relevant, and probable by witnesses, that Mr Hugh's disposition was in his own possession the time of his death, without a clause dispensing with the not delivery.
Fol. Dic. v. 2. p. 217. Stair, v. 2. p. 694.*** Fountainhall reports this case:
1679. February 13.—A Disposition is quarrelled as an undelivered evident in the granter's lifetime. The Lords found this relevant to annul it, that it was offered to be proven, that it was seen after his decease, among his papers; but if the disposition had been in lecto, the objection of not delivery would have been repelled, because then it would have been of the nature of a testament, or universal legacy, which the Lords declared was valid and obligatory, though lying beside the defunct the time of his decease, and not delivered in his lifetime.
