Walker v Nisbet
| Jurisdiction | Scotland |
| Judgment Date | 11 March 1915 |
| Date | 11 March 1915 |
| Docket Number | No. 74. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Salvesen, Lord Guthrie.
ProcessProving of the tenorIncidental proof of tenorMissing document the basis of the actionPromissory-noteCasus amissionis.
One of three parties, who had all signed a promissory-note as cautioners for the granter, brought an action against the granter in the Sheriff Court for repayment of the sum contained in the promissory-note, which sum the pursuer averred had been paid by him. The pursuer could not produce the promissory-note; but he averred that he had placed it in the custody of one of his fellow-cautioners who had since died, and that although search has been made among his papers it has not yet been found. In the course of a proof the Sheriff-substitute refused to allow certain questions proposed by the pursuer, the object of which was to establish the terms of the promissory-note.
Held that the questions had been rightly disallowed, in respect that it was incompetent incidentally to set up in the course of an action the tenor of a document founded on as the basis of the action. Held further that, in any event, an action of proving of the tenor in the Court of Session would have been incompetent, as there was no relevant averment of casus amissionis.
In March 1913 James Walker, farmer, Dumbarton, brought an action in the Sheriff Court at Edinburgh against James Y. Nisbet, Currie, Midlothian, concluding for payment of a sum of 265, but under deduction of the sum of 100 already paid to account.
From the pursuer's averments on record it appeared that the sum sued for represented the contents of a promissory-note signed by the defender and also by the pursuer and two other persons as cautioners for the defender, which the pursuer averred he had paid on 15th February 1905 when it fell due, after obtaining an undertaking in writing from the defender and his wife that the defender would repay him. The promissory-note was not produced by the pursuer in the process, the only explanation made on record for its absence being a statement that it was placed by the pursuer in the custody of one of the fellow-cautioners, who had since died, and although search has been made among his papers it has not yet been found.
A proof was allowed and led, the import of which appears sufficiently from Lord Salvesen's opinion. In the course of the proof the pursuer proposed to lead evidence that certain people had seen the promissory-note in his possession, his object being to establish by their evidence the tenor of the document, and to use the document thus established as evidence of payment. The defender's agent having objected to this evidence the Sheriff-substitute (Guy) sustained the objection, and on the motion of the agent for the pursuer granted leave to appeal to the Sheriff. The Sheriff (Maconochie) adhered, and remitted the case to the Sheriff-substitute for further procedure, who thereafter found in fact that the pursuer had failed to prove that he made the payment in question, and assoilzied the defender from the conclusions of the action.
The pursuer appealed to the Court of Session, and the case was heard before the Second Division (without Lord Dundas) on 14th,15th, and 19th January 1915.
Argued for the appellant;The terms of the promissory-note could be proved incidentally in the Sheriff Court process without a separate action of proving the tenor.1 The questions should therefore have been allowed. The averments showing the casus amissionis were sufficient, and the cases cited by the respondent did not apply, because in the present case the promissory-note was required to prove an obligation of relief, and it had been lost in the custody of a co-cautioner.
Argued for the respondent;The questions had been rightly disallowed. The promissory-note in the present case was the foundation of the action, and it was therefore incompetent to prove its terms incidentally in the action. Young v. Thomson1 was no authority to the contrary. A separate action of proving the tenor in the Court of Session would be required, but for such an action the necessary averments showing the casus amissionis were lacking.2 In the case of a bill these required to be particularly clear.3
At advising on 11th March 1915, the following opinions bearing on the question which is the subject of this report were delivered,
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...
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