Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION I.

Allegeances how relevant to be proved.
Subject_3 SECT. III.

What Proof relevant to take away Writ.

Alexander Chisholm
v.
Renies

Date: 6 February 1668
Case No. No 80.

Witnesses ex officio examined to instruct the cause of a bond, the sum being filled up by another person than the writer of the bond.

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Alexander Chisholm, as executor to John Graham of Orchel, pursues William and Archibald Renies for a bond, granted by them to the defunct, in anno 1635, who alleged, That the true cause of the bond was by transaction of a blood-wit, made by the Laird of Gloret and Mr James Row, in whose hands this bond (then being blank) was put, and which unwarrantably came in the hands of Orchel the party, who, instead of 400 merks, filled up 2000 merks, which is offered to be proved by the arbiters' oaths, yet in life. The pursuer answered, That his bond could not be taken away by witnesses, especially extrinsic witnesses, there being no writ relative to this bond, or of the same date, or witnesses that might give any presumption of the cause thereof. The defender answered, That there were here far stronger presumptions, viz. that this bond hath been dormant thirty-three years, albeit it bore no annualrent, and Orchel was known to be in great necessity, and, by ocular inspection, it appears to be filled up with another hand, and blotted, which presumptions, being so singular, give ground enough to the Lords to examine witnesses ex nobili officio.

The Lords ordained the witnesses and arbiters to be examined ex officio, reserving to themselves what these testimonies should operate, in respect of the antiquity and singularity of the case.

Stair, v. 1. p. 520.