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Hugh Fraser, to whom an estate in Scotland had been devised, upon the failure of heirs-male of Lady Erskine the mother of Fraser Davies, brought an action for declaring the illegitimacy of the latter, founded on an allegation, that Thomas Davies, husband to Lady Erskine, and father of Fraser Davies, had been antecedently married to Elisabeth Nugent.
In support of this action, Mr. Fraser, inter alia, referred to a certificate and two missive letters, said to be holograph of Thomas Davies, which contained an acknowledgement of his former marriage. Copies of these writings were preserved in a process of declarator of marriage, which had been instituted by Elisabeth Nugent before the Commissaries of Edinburgh; but the originals had been taken out of the process by her, and never restored.
Mr. Fraser Davies, the defender, brought an action of reduction-improbation, in which these writings were called for, under the usual certification; and Mr. Fraser, in order to obviate that action, insisted in another for proving their tenor.
The original action, which called in question the legitimacy of a person more than thirty years after his birth, was viewed in an unfavourable light. And some of the judges doubted how far the removal of the writings by the party principally concerned, could be sustained as a proper casus amissionis, in favour of one who had only a collateral interest. But the chief ground of the decision seemed to be the peculiar nature of the proof requisite in the action of proving the tenor; with regard to which it was
Observed on the Bench: A proving of the tenor is a useful, but at the same time a dangerous remedy; since without due attention, it may give an opportunity of raising up valid and effectual documents, in the place of informal or of forged deeds. It has therefore been wisely provided, that the evidence to be adduced by the pursuer shall not be confined to the tenor of the writings, but shall at the same time establish their authenticity; Stair, B. 4. T. 32. § 5, 9. Thus, with regard to holograph deeds, it is not enough for the pursuer to prove, that writings of the purport libelled had once existed. Had they been extant, it would have been incumbent on him to have likewise shewn, that they were the genuine hand-writing of the party, and subscribed of the dates which they are said to have borne. Erskine, Book 3. Tit. 2. § 22.; Proof, Div. 4. § 4. Here then the present action must be for ever ineffectual, because from the disappearance of the writings themselves, such a proof cannot now be obtained.
The judgment of the Court was in these words:
“The Lords, having considered the whole circumstances of the case, dismiss the action.”
Lord Ordinary, Eskgrove.Act. Maclaurin, A. Ferguson.Alt. Henry Erskine. Geo. Ferguson.Clerk, Robertson.
Fac. Coll. No. 157. p. 245.
*** Notwithstanding this decision, the Judges who spoke expressed their opinion, that even after decree obtained in the action of reduction-improbation, Mr. Fraser would be intitled to found on the letters in question, though not as holograph deeds, yet as a circumstance of evidence.
