Where the names and designations of the witnesses were not proved, yet the casus amissionis being not-tour, the bond old, and its verity not questioned, the tenor was found to be proved.
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Mr. Robert Trotter, doctor of medicine, being creditor in two bonds to Home of Eccles, he pursues his heir, and on his renunciation obtaining a decreet of constitution, he adjudges; but, in the great fire in the meal-market, the 3d of February, 1700, these rights among his other papers are burnt; whereupon he raises a proving of the tenor, wherein sundry pregnant adminicles being adduced, the Lords were clear enough anent the truth and reality of the debts, but it stuck with them that none of the witnesses had deponed, who were the writer and witnesses in the bonds, nor what were their designations. It appeared from the extract of the decreet, that one of them was holograph, but that the other was libelled as signed before witnesses, and no vestige nor evidence of probation who were the writer and witnesses therein; and if this were once dispensed with, then other false or null bonds might be Just, and then made up, and so the nullity palliated and concealed, which is of dangerous consequence. Answered, 1mo, The common debtor had renounced, which he would not have done if they had laboured under such intrinsic nullities; and his objecting thereof would no more have brought him under the hazard of incurring a passive title, than if he should object that it was not signed by the defunct. 2do, witnesses clearly depone that they read the bonds, and that they appeared to be formal complete writs, without any defect; and it is impossible that they, on a single transient reading, can remember the writer’s name, with the witnesses and their designations; yea, there is not a creditor of twenty, that, on losing his bonds, can tell who were the writer and witnesses therein; so to require this, were to make the tenor of personal moveable bonds impossible to be made up: In heritable bonds there is not indeed this hazard; because the precept of sasine, which is ingrossed in the body of the infeftment, (except in ward-lands) contains the witnesses and writer ad longum; but in other simple bonds there is no such direction to be found. The Lords saw a manifest inconveniency on both sides; but the casus amissionis being notour, and the bonds old, and not questioned as to their verity by the debtor and his other creditors; and being only craved to sustain the diligence of adjudication led thereon, they found the tenor of the bonds proved, notwithstanding of that omission; which some thought a dangerous preparative, if taken in the general, abstracted from special circumstances, as what may favour nullities and forgeries; and, on the other hand, not one creditor of an hundred can condescend on the writer and witnesses in all his bonds, when lost or consumed by fire.
Fountainhall, v. 2. p. 371.*** Dalrymple reports this case:
Doctor Trotter pursues a proving the tenor of two bonds, which had been produced in several processes, and whereupon adjudication of the debtor’s estate was recovered; in which the casus amissionis and tenor being admitted to probation, at advising the probation the defenders being absert, it did appear to the Lords that the adminicles were pregnant, both by documents in writ, and testimonies of witnesses who had seen the bonds and the casus amissionis clearly proved, viz. that they were burnt in his house in Edinburgh with his furniture and other writs. One of the bonds being holograph, the Lords made no difficulty in finding the tenor thereof proved; but as to the other bond it occurred to the Lords, that the inserting of writer’s name and witnesses, and witnesses subscribing, are of the essentials of a bond, and accordingly were libelled in this tenor. But there was no testimony of witnesses deponing that the writer and witnesses libelled were writer and witnesses of the bond, nor did any of the documents in writ adminiculate that point; whereupon the Lords demurred, and delayed the decision as to that bond for some days; and having this day resumed the consideration thereof, it occurred to the Lords that the difficulty above-mentioned was great, seeing by the style of the tenor, writer and witnesses must be condescended on and found proved, otherwise the tenor cannot be made up. Upon the other hand it was argued, that if this difficulty should take place, and found a defence in a tenor, it would be impossible to prove the tenor of any solemn unregistrated writ except heritable bonds or dispositions. whereupon infeftments had followed, which infeftments for the most part do ingross the designations of the writers and witnesses as immediately subjoined to the precept of sasine, but no relative writ either voluntary or diligence would afford any document to instruct the writer’s name or witnesses, nor do witnesses usually notice, nor can be supposed to remember such circumstances, nor can the creditors, or persons in whose favours bonds or other solemn writs are made, so much as condescend upon or remember writer’s name or witnesses, whereby it would be impossible to make up the tenor of lost writs; which would be a very great inconvenience, especially in such a general calamity as happened in the late fire at Edinburgh. And though there be difficulty in this, and may be in other cases, by making up the tenor even as to writer and witnesses without a clear document and probation; yet, 1mo, The prejudice is much more upon the other hand. 2do, In this case the writ was advised, and deliberately considered, in order to found a process, and appeared to those employed who have deponed to be a legal formal writ. 3tio, There can be no fear of the affected losing of suspected writs and making them better by a tenor, because tenors are made up by documents and adminicles, whereof the Lords are judges; and where there lies the least ground of suspicion against the writ lost either as to the formality, much more as to the quality, or even as to the existence of that writ unextinguished, in such cases the Lords would weigh the whole, and would not make up the tenor if there remained any suspicion against the debt; but where there remains no question, either as to the reality, or formality of the debt, it were hard there should be no remedy.
