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Scottish Court of Session Decisions >>
Walter Campbell v The Creditors of The York-Buildings Company. [1780] Mor 15828 (22 February 1780)
URL: http://www.bailii.org/scot/cases/ScotCS/1780/Mor3615828-064.html Cite as:
[1780] Mor 15828
Walter Campbell v. The Creditors of The York-Buildings Company
Date: 22 February 1780 Case No. No. 64.
Special casus amissionis requisite in proving the tenor of bills of exchange.
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Mr. Campbell insisted in an action for proving the tenor of a bill of exchange for £.200, drawn by Bishop, one of the York-Buildings Company's overseers in Scotland, upon Mildmay, cashier to the Company. That such a bill once existed, did not admit of doubt, nor was there any evidence of its having been retired; but the pursuer not being able to condescend on any circumstance accounting for its disappearance, it was
Pleaded for the Creditors of the Company: In all actions of this kind, a special casus amissionis must be established by the pursuer; otherwise, documents might be reared up of a nature and appearance totally different from those which are said to be lost; Bankton, B. 1. Tit. 24. § 12. & B. 4. Tit. 29. § 2.; Erskine, B. 4. Tit. 1. § 54.; February 19, 1679, Swinton contra The Laird of Tofts, voce Writ. This is especially requisite in the case of bills, where partial payments are generally marked on the back of the voucher of debt, and where the debtor, relying for his acquittance on the delivery or cancellation of the bill itself, does not think it necessary to demand a formal discharge.
The Lords found, “That the pursuer must condescend farther before he is allowed a proof of the tenor and casus amissionis of the bill libelled.”
