Scottish Court of Session Decisions

This is a reduction of the settlement of the late Mrs Macdonald of Lassintullich, the grounds of reduction being facility and circumvention, and that the testatrix was not of disposing mind. The pursuer is the daughter, and the defender the son of the testatrix, and the pursuer alleges a title to sue the action as being disponee under certain previous settlements, which, she alleges, the defender fraudulently destroyed.

The defender denied the pursuer's title, and maintained that it could only be proved by a decree of proving of the tenor of the previous settlements founded on. The pursuer, on the authority of certain old cases, maintained that where a deed is alleged to be destroyed by the opposite party in a suit, a formal action of proving the tenor is not necessary, and the deed can be set up as against the party who destroyed it by a proof in the cause, either along with or separate from the proof on the merits. The Lord Ordinary having heard counsel upon the question of title has now issued an interlocutor sisting process to enable the pursuer to bring a proving of the tenor.

To this interlocutor the following note is appended:—

“The deeds in question constitute the pursuer's title in the present process. It appears to the Lord Ordinary that before the pursuer can insist in the action these deeds must be set up by their tenor being regularly proved. And it further appears to the Lord Ordinary that this must be done by a formal proving of the tenor carried through before the Court, not by an incidental jury trial in the present case. The deeds are not mere evidence, nor is Mrs Kennedy a defender, but a pursuer. The deeds are essentially and indispensably the title of Mrs Kennedy, and must, as such, be raised up in the formal manner required by law.”