This was an action of proving the tenor of a bond of annuity, granted by the deceased John Finlay of Parkhouse to Mrs Elizabeth Fleming. Mr Finlay's trustees, the defenders, made no opposition. The Court, having sustained the adminicles, allowed a proof, from which it appeared that Elizabeth Fleming and her husband had been examined by the commissioner. It also appeared that the writ produced by the pursuers for proving the tenor of the bond was an extract from an instrument of sasine in favour of Elizabeth Fleming, proceeding upon a bond of annuity, granted by John Finlay, “whereby, for the causes therein mentioned, the said John Finlay bound and obliged himself, and his successors, to make payment to the said Elizabeth Fleming of a free annuity,” &c.
The Court were of opinion, that the depositions of the pursuers should not have been taken; that the whole sasine ought to have been extracted; and that there ought to have been better evidence produced of the causes of granting the bond; but, as there was no opposition, their Lordships decerned in the proving.
