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Scottish Court of Session Decisions >>
Earl of Southesk v Duke of Hamilton. [1682] Mor 15801 (2 February 1682)
URL: http://www.bailii.org/scot/cases/ScotCS/1682/Mor3615801-033.html Cite as:
[1682] Mor 15801
What to be considered adequate as casus amissionis?
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Mr. John Ellies and the Earl of Southesk having raised a proving of the tenor of a bond of £.1000 Sterling, granted by the Lord Lanerk to James Livingstoun, considered in anno 1645, and the libelled casus amissionis being, that the bond was produced in the year 1656, before Commissioners of the Chancery of England, and miscarried,
It was alleged: That the casus amissionis was not circumstantiate, and the bond might have been paid and retired; and this were of a dangerous preparative, seeing persons after payment destroy their bonds; and here debtor and creditor are both dead.
The Lords sustained the casus amissionis, and documents in writ as adminicles; and found the tenor proved by the depositions; though the witnesses inserted deponed, that they did not remember of the bond. But here were great presumptions of the not-payment; for my Lord Lanerk died at Worcester in the year 1651, and the bond was pursued against the executors of Lord Dirleton, the cautioner, in anno 1653, and assigned by them to Mr. John Ellies. The bond was also registered in the year 1654, after the debtor’s death; and a year’s annual-rent was paid after the act of “debtor and creditor.”
