Scottish Court of Session Decisions

Thomas Paterson, lately residing at Biggarford, youngest son of the late Gavin Paterson residing there, raised an action of proving the tenor of a lease. The action was directed against his father's trustees, and his nephew, Gavin Paterson, junior, son of his eldest brother, deceased. The lease was libelled to have been granted to the pursuer by his late mother, with consent of his late father, for 1000 years, and to include the lands and houses of Biggarford, at a rent of one shilling per annum. The lease was said to be burdened with the payment of £5 per annum to a brother of the pursuer, named Robert, and £2 per annum to a sister, Jean, during their respective lives; and they were co-pursuers of the action.

The pursuers produced an extract of the lease as recorded in the Register-House at Edinburgh, and they libelled the casus amissionis of the principal lease in these terms:—“That the said lease or missive of lease has since fallen by, and is lost, and cannot now be found, notwithstanding that the strictest search for the same has been made.” The lease was libelled on as subscribed by the pursuer, Thomas Paterson.

The defenders alleged that no such lease had ever been granted, and that the pursuers were attempting a fraudulent imposition; and they pleaded, inter alia, that no relevant casus amissionis was libelled.

The pursuers tendered an amendment of the libel of the following tenor:—“That as there were other parties besides the said Thomas Paterson, pursuer, interested in the said deed, he was strongly urged to get the same recorded, and having, in the month of October, 1835, occasion to be in Edinburgh, the pursuer, the said Thomas Paterson, carried the said deed along with him, and, on the 19th day of the said month and year, proceeded with it to the Register-Office, and delivered it to the keeper of the register of probative writs, in order to be registered; that the said deed was thereupon duly recorded, and was, as such, returned to the pursuer; that he put the deed in his pocket, and, in the course of the same afternoon, went to different places in the town of Edinburgh; that on the following morning, the pursuer, Thomas Paterson, missed the said deed out of his pocket, and though he made every search for it, that he could, was unable to find it.”

It appeared from a deposition of Thomas Paterson, who had been previously examined as a haver, in a reduction-improbation of the alleged lease, and also from three several declarations which had been emitted by him before the sheriff, in the course of a criminal precognition which, at one time, was taken respecting the alleged existence and disappearance of the lease, that he gave the most evasive and contradictory accounts, respecting every particular of importance connected with the deed. His father and mother were both dead before it was heard of; one of the instrumentary witnesses was merely said to be a James Thomson, residing at Glasgow, since dead, and as to whom no clue could be given. The other instrumentary witness, when examined as a haver, in the reduction-improbation, deponed, that he had not the lease, and never saw it. The pursuer, Thomas Paterson, in the deposition and declarations already mentioned, some of which he declined to sign, from the difficulty he felt in writing, stated, that he had himself taken the lease to the Register-House in Edinburgh to be recorded, being guided there by a porter whom he met in the street, and that next day he got back the extract and principal deed, and when going through the streets with each of these deeds in a separate pocket, he made acquaintance with a stranger, with whom he went to drink; that he got drunk, and the following morning the principal lease was out of his pocket, but the extract was left; that he lost no money at the time; and that he was unable to point out the house where this happened, or to give any clue to it whatever. The pursuers offered to adduce some witnesses who, they said, had seen the deed, and others who would prove that their mother had declared her intention of executing the deed.

The defenders contended that the libel, as laid, did not set forth a relevant casus amissionis; and no adminicle was produced tending to show that any genuine deed had ever existed, and, therefore, the Court could not sustain the adminicles and allow a proof. And they pleaded that, when the circumstances of the case were considered, the rule which required the libelling of a relevant casus should not be relaxed in this instance, but the libel should be dismissed, with expenses.

The pursuers answered, that, where the deed lost was of such a nature that it was not commonly cancelled, without a written discharge or renunciation, it was not necessary to libel a special casus amissionis; that the extract produced was a sufficient adminicle, and there was still one instrumentary witness alive who might be examined, and who had only been imperfectly examined as a haver in another process; besides which, the pursuers were ready to prove by parole that their mother had declared her intention of executing such a deed.