Witnesses were, ex officio, examined, whether a bond of provision had been deposited, and upon what terms.
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Sir Archibald Stewart of Blackhall, in the disposition of his estate to his son, reserved a faculty to burden the estate with L. 20,000 for provisions to his younger children; and, in prosecution of this power, Mr John Stewart, younger of Blackhall, gave a bond to Anabella Stewart, his sister, for 8000 merks, but put it in his father's hands; and he gave it in keeping to Birsbane of Bishopton, his son-in-law; but Anabella coming by the bond, she marries one Fergusson, without consent of her father and other friends, far below her own quality and degree; and she charging, Blackhall suspends, That it was never a delivered evident, but only consigned and depositated, first, in her father's hand, and then by him in Bishopton's, on this express condition, that it was not be given up without the consent of Blackhalls, elder and younger; and yet she had, viis et modis, got it out of Bishopton's cabinet, and so ought to put it back again there. Answered, The bond being now in my custody, you cannot take it away but by my oath; and if you found on a depositation that is not probable by witnesses, but only by my oath; and if I acknowledge it, then the terms may be cleared by the depositar's oath; and if it were otherwise, then bonds, and the clearest securities, may be taken away by the depositions of witnesses, contrary to the uncontroverted principles of our law. Replied, That bonds to extraneous persons, once come into their hands, cannot be taken away, but scripto vel juramento; but in bonds of provision to children, where the father alive, and the child not yet married, the presumption runs stronger that it was not delivered, epecially considering her gross misbehaviour; and, in many cases, the Lords have allowed, witnesses ex officio, to be examined anent the delivery of writs, and on probation have found them null and. extinct, 14th February 1629, Farquhar against Wallace, Div. 1. § 6, h. t.; 25th November 1631, Douglas against Lauder, Div. 5. § 7, h. t.; and 15th December 1681, Mercer against the Lady Aldie, Ibidem, marked by President Newton; for though witnesses cannot take away a writ, yet they may be adduced to clear circumstances in the matter of fact. Some of the Lords thought the depositation could not otherwise be proven but by her oath; and if she confessed it, then the depositar might be examined what were the terms; and if she denied it, and owned she came fairly by the bond, there was an end of it; for they thought parents might obviate this, either by making it only payable, she marrying with their consent, or by reserving a power to alter; but the plurality ordained the witnesses in the bond with Blackhall and Bishopton to be examined ex officio, if there was any depositation, and what were the terms and conditions on which it was made, and how it came out of their hands, which was looked on as a great preparative, if it should be followed in other cases.
Fol. Dic. v. 2. p. 217. Fountainhall, v. 2. p. 207.
