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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mrs Elizabeth Nimmo v Andrew St Clair. [1771] Hailes 430 (26 July 1771) URL: http://www.bailii.org/scot/cases/ScotCS/1771/Hailes010430-0223.html Cite as: [1771] Hailes 430 |
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[1771] Hailes 430
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TENOR - PROVING OF THE TENOR.
Subject_3 What is sufficient evidence for that purpose?
Date: Mrs Elizabeth Nimmo
v.
Andrew St Clair
26 July 1771 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, V. 292; Diet. 15,825.]
Auchinleck. The only question at present is, as to the proof of the tenor. Proving the tenor is a nice question. Here it is pleaded that there must be adminicles in writing; but it is proved that Lady Jane Nimmo put the deed in the fire. One owes a bill, and asks to see it; he swallows it: would he be allowed to require adminicles in writing for proving its tenor? As the casus amissionis is admitted, the assignation, without power of revocation, is also proved. But here there is an extraordinary clause, that of delivery to Mr Nimmo; it requires an adminicle in writing, and it is not even proved by witnesses.
Kennet. Lady Jane admits that the deed was delivered to Mr Nimmo; and so Mr Nimmo himself averred. If Lady Jane had kept possession of the second deed, it would have been no better than the first, in whose place it was substituted.
Pitfour. The intention of granting the deed at all, is inconsistent with the idea of revocation. Lady Jane acknowledges that she left the deed upon the table; that Mr Nimmo took it and kept it: it was to be the ground of a translation. Mr Nimmo was the proper custodiar, being the father of the grantees of the fee.
Coalston. It is agreed that the casus amissionis is proved, and that the deed was destroyed by Lady Jane. When a special casus amissionis is proved, there is no occasion for adminicles in writing. We must not separate the proofs. Lord Marchmont's evidence, written adminicles, real evidence of the res gesta, may not be sufficient singly, but are jointly; so we must judge when the destruction of a deed by a tortious act is proved.
Alemore. It is said that here is an extraordinary clause: Not so; for every clause in a deed is common or extraordinary, secundum subjectam materiam. This clause is not extraordinary; for a contrary clause would have been inconsistent with the purpose of the parties.
On the 24th July 1771, the Lords “found the casus amissionis and tenor proved.”
Act. R. M'Queen, H. Dundas. Alt. H. Campbell, A. Lockhart.
The electronic version of the text was provided by the Scottish Council of Law Reporting
