The presumption of instrumentum penes debitorem, found not to take place relative to real rights.
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The debate between Liermont of Balcomy and Mr William Gordon, advocate, brother to Lesmore, was advised. Lesmore had an apprising on Balcomy; when he pursues for mails and duties, Balcomy raises a declarator that it was in trust, and enforced it from this, that the said apprising, with the charter and sasine, were lying beside the debtor in his charter-chest, and so was in the case of instrumentum apud debitorem repertum, which presumes liberation. Answered, Whatever presumption of being retired this may infer against personal rights, and principal evidents, yet it had no force in real rights, because they might all be got at the register, and extracted by the debtor, and so the finding them beside him could enforce no transaction nor delivery. The Lords found the trust not proven, mainly on this ground, that they would not take away heritable rights by presumptions and conjectures.
But the next day, on a bill given in by Balcomy, representing that he offered to prove by witnesses present, who heard Lesmore say, when he was paying the compositions, and transacting with some feuars, that it was not his interest but Balcomy's; the Lords, before answer, allowed these persons ex officio to be examined thereanent.
This cause being heard again on the 26th of January, it was contended by Sir William Gordon, that his right could not be taken away by extraneous witnesses, especially women. The Lords refused to admit women-witnesses, though one of them was the Lady Lesmore, Mr William's own mother; but she was Balcomy's sister, and the Lords allowed any other habile witnesses to be examined on the qualifications of the trust.
Fol. Dic. v. 2. p. 139. Fountainhall, v. 1. p. 391.
