Walker v. Nisbet [1915] ScotLR 439 (11 March 1915)

Walker v. Nisbet [1915] ScotLR 439 (11 March 1915)

The pursuer's attempt to prove the tenor of the lost promissory-note incidentally in an ordinary action was incompetent because the note was the foundation of the action and there was no relevant averment of casus amissionis; mere assertion of loss without explanation or evidence of circumstances was insufficient to overcome the legal presumption that the note had been paid or destroyed.

Citation
[1915] ScotLR 439
Parties
Pursuer/appellant: James Walker; Defender/respondent: James Y. Nisbet
Jurisdiction
Scotland
Judgment Date
11 March 1915
Procedural Posture
Civil Appeal / Appeal From Sheriff Court to Court of Session Inner House, Second Division
Outcome
appeal dismissed; defender assoilzied (absolved) from conclusions of the action
Legal Topics
Proving the Tenor, Casus Amissionis, Promissory Notes, Admissibility of Parole Evidence, Burden of Proof in Lost Documents
Civil Procedure Evidence Commercial Law Proving the Tenor Casus Amissionis Promissory Notes Admissibility of Parole Evidence Burden of Proof in Lost Documents

Case Brief

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Parties

James Walker

Pursuer/appellant

James Y. Nisbet

Defender/respondent

Procedural Posture

Civil Appeal / Appeal From Sheriff Court to Court of Session Inner House, Second Division

Legal Issues

  1. 1 Whether the pursuer could prove the terms of a lost promissory-note incidentally in an ordinary action without a separate action of proving the tenor.
  2. 2 Whether the pursuer's averments disclosed a relevant casus amissionis justifying exceptional proof of the tenor by parole evidence.

Ratio Decidendi

The pursuer's attempt to prove the tenor of the lost promissory-note incidentally in an ordinary action was incompetent because the note was the foundation of the action and there was no relevant averment of casus amissionis; mere assertion of loss without explanation or evidence of circumstances was insufficient to overcome the legal presumption that the note had been paid or destroyed.

Court Disposition

appeal dismissed; defender assoilzied (absolved) from conclusions of the action

Orders

  • Appeal dismissed.
  • Sheriff-Substitute's interlocutor of 22nd January 1914 affirmed.