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.

Robert Bruce, Petitioner

Date: 19 June 1696
Case No. No 104.

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Robert Bruce of Bordy, by a petition, represented, that he had granted bond to the deceased Daniel Nicolson, for 1000 merks, bearing borrowed money, yet truly it was a salary for agenting his law business, and which, being now assigned to Bailie John Murray, he craved the Lords would, ex officio, examine the writer, and subscribing witnesses, in the bond, anent the true cause of it; which being proven, it might be declared null condictione, ob causam datam causa nonsecuta. The Lords refused this bill; for they considered whatever might be done for expiscation where the writ bore allenarly onerous causes in the general; yet where it bore speciatim ex causa mutui the same could not be canvelled, save only scripto vel juramento of the creditor, and which mean of probation he had omitted to crave, though Daniel was several months in prison before his execution. Some may think strange, why witnesses should be allowed to prove a trust, and not to qualify the narrative of a bond: only trusts are more frequent in relation to heritable rights.

Fol. Dic. v. 2. p. 221. Fountainhall, v. 1. p. 722.