In proving the tenor of writs, the casus amissionis need not, in some cases be condescended on.
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Elizabeth Anderson, daughter and executrix to Mr. David, her father, makes an assignation to Robert Mein, merchant, of certain debts; whereupon the said Robert raised process before the Commissaries; and the assignation was thereafter lost. This assignation was made by Elizabeth, with consent of Allan Keith, her husband; and the tenor thereof is, by a summons, craved to be proved and made up; the pursuer having produced divers adminicles. It was alleged for the Laird of Niddrie, who had right from John Anderson, brother to Elizabeth, and who had right from her, That casus amissionis must not only be libelled, but specially condescended on, and made probable; because it is offered to be proved, that there was a factory granted by the said Elizabeth to this pursuer, and upon which factory he did pursue, and obtain payment from some of the debton, to the said Elizabeth’s behoof, and upon trust; and if any such assignation was thereafter granted, it was upon trust, it being ordinary to entrust friends with such assignations, and to the granters to keep them beside them, or in their own proper power, though intimated; and this pursuer cannot say, nor can he make it appear, that ever he gave money for this assignation, nor that ever it was in his custody as his own evident : And therefore, unless casus of his amissio thereof, be condescended upon, there can be no process. It was answered, That casus amissionis can in very few cases be condescended upon, far less proved; men often-times tining their writings, not knowing how or where.
The Lords found, That, in the case of a such a personal writ, whereupon nothing followed but intimation, and the intenting of an action, and upon consideration of many other circumstances, casus amnissionis should not be condescended upon.
