Scottish Court of Session Decisions

The Rev. Andrew Browne, minister of the parish of Beith, brought this action to prove the tenor of a bond of annuity and disposition in security, by which the late Mrs Margaret Gibson or Spier bound herself and her heirs and successors to pay to the pursuer and his successors in office, as trustees, an annuity of £25, to be laid out by the minister, with the approbation of the kirk-session, for the benefit of such poor persons in the parish as the kirksession might select, debarring the interference of the parochial board; and in security of the obligation disponed certain lands. The deed contained a clause of absolute warrandice.

The testamentary trustees of the late Mrs Spier were called as defenders.

The history of the bond and the casus amissionis were thus stated by the pursuer:—“The bond of annuity and disposition in security libelled was duly executed by the said Mrs Margaret Gibson or Spier on 8d March 1860. It was afterwards, by her instructions, recorded in the General Register of Sasines at Edinburgh on 30th July 1860. It was thereafter, in or about the month of November 1860, delivered by Mrs Spier to the pursuer as an irrevocable deed. He received it as such, and made known, by intimation from the pulpit and otherwise, the benevolent intentions of the granter. The first payment of the said annuity was made by the granter to the pursuer, in terms of the deed, at or about the term of Martinmas 1860, and the annuity continued to be regularly paid to the pursuer, and was laid out and expended by him in terms of the directions contained in the bond, during the life of Mrs Spier. In or about the month of November or December 1862, Mrs Spier sent her servant to the pursuer with a verbal request that he would send her the bond for perusal. He

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accordingly did so, and the bond was handed by the servant to Mrs Spier. The bond was never returned by Mrs Spier to the pursuer. She died in February 1870, and it was not found among her papers. As the annuity continued to be regularly paid, and as the bond was a recorded deed, the pursuer did not press Mrs Spier to return the deed to him. It has been stated that through some mistake or misapprehension Mrs Spier had put the bond in the fire. Notwithstanding the most diligent search among Mrs Spier's papers, and every exertion and inquiry on the part of the pursuer, the said bond has not been found. An extract from the record is herewith produced.”

Trayner for the pursuer.

There was no appearance for the defenders.

A proof before answer as to the sufficiency of the adminicles and the casus amissionis was allowed. The proof instructed the averments of the pursuer. It did not, however, appear in evidence whether Mrs Spier had destroyed the bond intentionally or through inadvertence.

When the case came up on the proof, the Lord President intimated his doubt whether, looking to the terms of the Act 1617, c. 16, the pursuer had sufficient interest to entitle him to resort to a proving of the tenor, and suggested to counsel the propriety of considering the effect of an extract from the Register of Sasines when the conveyance itself is registered.

At advising—