Scottish Court of Session Decisions

Lord Justice-Clerk—What the pursuer here seeks to do is practically to prove the tenor of a document said to be missing, and that not by a proper process of proving the tenor, but as an incident in an ordinary action. Assuming that this might be permissible, the pursuer's attempt is to prove by parole evidence that he paid £265 to a bank in order to get up a promissory-note on which he was a co-obligant with two others. I am clearly of opinion that such an attempt was incompetent, and was rightly decided to be so.

The pursuer further proposed to prove by parole evidence that certain people had seen this promissory-note in his possession, obviously that they might speak to its terms. To make such proof competent, as in a proving of the tenor, very specific averments would be necessary, and here there was no such process, and could not be, as a proving of the tenor is only competent in the Court of Session. But on the assumption that an incidental inquiry of this kind might be competent, I have no difficulty in holding that what the pursuer seeks to prove here cannot be reached in such a way. Here the document to which the question related was necessarily the very basis of the action, and calls for a proper setting forth of a casus amissionis entitling the party to lead evidence otherwise not competent as proof.

The case here being that the pursuer desires to have it held that he took up and got into his possession the promissory-note in question, the direct way of meeting this Would be that he should produce it. This he is unable to do. Now it is, I think, plain that in the case of such a document as a bill of exchange or promissory-note very strong reasons would be necessary to induce the Court to allow proof to set up the debt of which, if produced, it might be proof. The case quoted tends to show this. Here the success of the pursuer would depend on his being able to satisfy the Court that it had gone missing in such circumstances that it could be held to be still in force, for the natural presumption, redarguable only by strong proof, is that a bill that cannot be produced is no longer in force. It is a document which if it gets into the hands of an obligant does so because he has met his liability, and he is therefore entitled to destroy the document of debt.

I am unable to hold that in this case there is any proper averment to entitle the pursuer to the concession as regards mode of proof which may be granted in a proper case of casus amissionis. That the pursuer avers that he placed the promissory-note in the custody of another co-obligant, and that on a search it cannot be found, amounts to no more than an assertion of loss, but states nothing relevant as to cause. He in no way accounts for the loss. There is no case of alleged fraud or of accident, such as fire—the averment is the bare averment of loss and nothing else. Nothing is set forth or competently proved to negative the legal presumption that the note may have quite legitimately ceased to exist as an enforceable document of debt.

I do not enter into further detail or an examination of the authorities quoted to us, as this has been done very fully in the opinion of Lord Salvesen, which has my entire concurrence. I would move your Lordships to find in terms of the findings in the Court below and to assoilzie the defender.

Lord Salvesen—[ Read by Lord Guthrie]—[ After narrating the facts, supra]—In these circumstances the pursuer has attempted to prove by parole the fact that he paid a sum of £265 to the bank to meet a promissory-note which he had granted along with two other co-obligants for the defender's accommodation. Both of the Sheriffs have held such a proof incompetent, and accordingly disallowed questions which were put with that object. In my opinion they were right in so doing, and the contrary was indeed not very strenuously maintained.

The pursuer, however, took exception to the disallowance of other questions which were put, the purpose of which was to prove that witnesses had seen the promissory-note in question in the pursuer's possession, and I presume that if these questions had been allowed the witnesses would have been asked to speak to its terms. I do not think these questions would have been incompetent in a proper action of proving the tenor, assuming that a proof had been allowed on relevant averments. Such an action is not competent in the Sheriff Court; but there are cases where the contents of a writing which is no longer in existence may be proved incidentally without the necessity of bringing an action of proving the tenor. An illustration of this rule is found in the case of Young v. Thomson, 1909 S.C. 529. It is, however, noteworthy that the action there had been commenced in the Court of Session, and that the writ which was allowed to be proved incidentally consisted of entries in a pass-book which ought to have been in the possession of the pursuer but was alleged by him to have been lost. It was further pointed out by Lord Dundas that the missing document was “not of the quality, e.g., of a title-deed, but of a much humbler kind; and is not substantively founded upon as the basis of an action, but pleaded by way of exception to prove the extinction of a debt.” In all these respects the present case is in marked contrast. The pursuer's case depends entirely on his being able to establish that he took up a promissory-note to which he had become a party for the accommodation of the defender, and the best evidence of this would have been the production of the promissory-note itself. Without it he has nothing but parole evidence, and although the two documents I have already referred to might be good adminicles in an action of proving the tenor, no proof would have been allowed in such an action unless a proper casus amissionis had been relevantly averred. This I think follows from a series of cases. Thus in Carson v. M'Micken, May 14, 1811 F.C., in an action of proving the tenor of a bill said to

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