The retiring of an apprising and assignation to it, found probable only scripto vel juramento.
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In a competition of the Creditors of Cromarty, it was alleged, against an assignation to a comprising in favours of Joseph Brody, That it was instrumentum apud debitorem repertum, and so extinct, by being in possession of the common debtor, who could not ex post facto revive it by delivering the blank assignation. Now, that the assignation and apprising were once retired by the debtor, appears from this circumstance; the assignation is of a date two years anterior to Brody's back-bond, which he gave at the delivery, in respect the sums in the assigned apprising were greater than those due to the assignee; and the retiring of the assignation and apprising was offered to be proven by witnesses.
The allegeance is only relevant to be proven scripto vel juramento; and it were a dangerous preparative to take away men's rights by witnesses, it being customary for apprizers to have blank assignations lying by them, till they meet with a merchant.
Replied, The assignee being dead, his oath cannot be had; but it is offered to be proven by the cedent, Dean-of-Guild Hamilton, and other witnesses, that the apprising, with the assignation, was delivered to Cromarty.
The Lords found the allegeance only probable, scripto vel juramento.
Fol. Dic. v. 2. p. 218. Harcarse, (Comprisings.) No 335. p. 81.
