dence, e.g., admissions by the granter, and the res gesta of the subscription.

§ 1316. On account of the delicacy of the investigation, it used to be the practice for the Inner House to examine witnesses in actions of proving the tenor (p); and commissions to take the proof were refused except in special cases (r), or were granted to one or more of the judges (s). An ordinary commissioner was sometimes appointed to examine infirm witnesses, or such as resided beyond the jurisdiction of the Court (1). The modern practice has been for the Lord Ordinary in the cause to take the proof (u). But commissions to others than the judges have in several cases been granted without a special reason being assigned (x); the Court, however, being more particular in selecting their commissioner in actions of proving the tenor than in less difficult cases (y).

VI. Effect of the Decree and Extract-decree.

§ 1317. A decree of proving the tenor revives the missing deed to the same effect as if it had continued in existence (z). And an extract of the decree is probative, like an extract of a recorded deed (a).

§ 1318. The object of the action being thus to overcome the loss of a writing, and not to determine its effect or validity, a decree of proving the tenor is not res judicata in a challenge of the deed on the head of forgery (b), or impetration, or collusion (c);

(p) Ersk., 4, 1, 58-Tait Ev., 211-Shand's Pr., 840. (r) Authorities in preceding note-Ferrier v. Berry, 1823, 2 S., 305. (8) Ersk., supra-Gordon, 1752, M., 15,823. (t) Ersk., supra-Scott, 1787, Hailes, 1015-Cases of Comb v. M Millan, 1773; E. Aberdeen v. Forbes, 1775; and Pringle v. St Clair, 1771 (not reported), noted in Shand's Pr., 840. (u) Shand's Pr., 840-Falconer v. Stephen, 1849, 11 D., 1338. (x) Anderson v. M'Connochie, 1843, 5 D., 494—Cases of Pringle v. Mack, 1821, and Small v. Smith, 1826 (not reported), noted in Beveridge's Forms of Process, 413, and Shand, supra. (y) In M'Comb v. M'Millan,

Pringle v. Mack, and Small v. Smith, supra, the commission was taken to the sheriff of the county; whereas in Ferrier v. Berry, supra, a commission to that officer was refused because a special reason for it was not assigned. In Anderson v. M'Connochie, supra, a commission to two justices of the peace was refused; while in Boyter v. Rintoul, 1832, (5 De. and And., 215; affd., 6 W. S., £94), noted on this point in Shand's Pr., 840, the proof was taken by an advocate. (2) Ersk., 4, 1, 59-Tait's Ev., 212Shand's Pr., 842. (a) Ersk., supra-Tait, supra-Shand, supra.

(b) Stair, 4, 32, 11-Ersk., supra-Nory v. Meikle, 1672, 1 B. Sup., 657-Tait, supra-Shand, supra. (c) Inglis v. Hay, 1712, M., 2744-Baillies v. Johnston, 1780, M., 15,833. Still less will it be a good defence to the proving that the deed was executed by a minor without consent of his curators. See Carse v. Kennedy, 1714, M.,

13,247.

because such objections are not competent defences to an action of proving. Again, where the defender in an action on a deed as revived by a decree of proving the tenor alleges that the right has been extinguished, a distinction seems to exist as to the competency of this plea. If it is averred that the non-existence of the deed arose from its having been retired or cancelled on the right being extinguished, then such discharge was a competent defence to the action of proving, as it negatived the allegation of a proper casus amissionis (d). Accordingly, if that defence was pleaded and repelled in the action of proving, the decree is res judicata on the point. Nay more, if such a defence is for the first time pleaded in an action to enforce the deed as restored, the Court may hesitate to entertain it, because it was "competent and omitted" as a defence to the action of proving. On the other hand, if the supposed discharge and the casus amissionis are independent, then, as the discharge was not a good defence in the action of proving the tenor, it may be pleaded in defence to an action on the deed, as restored by the decree of proving (e).2

(d) See Miln v. Duchess of Lauderdale, 1687, M., 15,805. See supra, ? 1300. (e) Inglis v. Hay, 1712, M., 2744. See also Hamilton v. Hamilton, 1713, M., 15,819.

2 In the recent case of Winchester v. Smith some important observations on the scope and effect of the action of proving of the tenor fell from the bench. The circumstances out of which the case arose were these:-A mutual disposition and settlement was executed by spouses in favour of the survivor. It contained a clause providing for the distribution of the means and estates upon the death of "the longest liver," and a reserved power to revoke "at any time during our joint lives." On the death of the husband, William Smith, the deed was produced with the wife's signature and those of the instrumentary witnesses cancelled. The action was brought by one of the beneficiaries under the settlement for the purpose of setting up the deed. Some of the judges were disposed to doubt whether, in the circumstances, Grace Winchester, the pursuer, had a good title to sue. The deed provided that, upon the death of the longest liver of the spouses, one-half of the whole means and estates was to be divided equally, share and share alike, among the surviving children of Robert Smith, "and one-fourth to Grace Winchester and the heirs of her body." It was argued that the declaration and provision [not being a conveyance of anything in favour of the parties named, but only a mortis causa destination of any succession which might actually be left by the survivor of the spouses, and seeing that the pursuer would have no jus quæsitum under it, unless she happened to survive the widow, her mother, who during her life might exhaust the whole means and estate] did not confer any right upon the pursuer which could enable her to maintain the action. The opinion of the majority, however, seemed to be, that any party who on the face of a deed has a prima facie interest in it, is in titulo to prove the tenor of it; and that the pursuer here had a prima facie interest. The casus amissionis, which the pursuer alleged and attempted to instruct, was,

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§ 1319. When it is alleged that a deed was destroyed by a depositary in conformity with the granter's directions, decree of prov

that Mrs Smith, during the life of her husband, but without his knowledge, and in a fit of passion at one of the beneficiaries, had deleted her own name and the names of the instrumentary witnesses. Mrs Smith was examined as a witness, and deponed that she had destroyed the deed in the circumstances described, but that she had immediately repented of what she had done, and had, after the death of her husband, of new subscribed her own name, and inserted those of the instrumentary witnesses. Her evidence, however, was quite unsupported; and the majority of the Court held that the evidence of one witness, having a material interest in the validity of the deed, was not sufficient to overcome the presumption that it had been duly cancelled during the lifetime of the husband. But Lords Cowan and Deas were of opinion that the real evidence of facts and circumstances was confirmatory of the widow's testimony, and showed that a mutual deed, which was not revocable by one of the granters alone, had been cancelled or mutilated without the knowledge of the husband. They held, therefore, that the casus amissionis had been established, and that the pursuer was entitled to succeed in her action. But they were willing that the terms of the interlocutor should be similar to those adopted in Falconer's case (11 D., 220 and 1338), which were, " In respect of the peculiar circumstances of the present case, find the terms of the writing or codicil proven, and decern; under reservation of all questions as to the effect of said writing or codicil." Lord Neaves thought that such a reservation was incompetent; "but, if such a reservation is necessary or proper, we had better not allow the proving of the tenor at all. The very object of this action is to undo the cancellation, and a decree in it, by its very nature, repones all parties against that act as if it had never taken place. The deed cannot, I conceive, be reared up by a proving of the tenor, without being reared up to its full effect." And the Lord Justice-Clerk (Inglis) observed, that while under ordinary circumstances he would think such a reservation very unmeaning, "because there is necessarily such a reservation implied in all decrees of proving of the tenor," he thought it objectionable here, because the only question on which the pursuer desired a decision was that which it was proposed to reserve. But the opinion of the Lord Justice-Clerk principally proceeded on the view, that an action of proving of the tenor was inapplicable to the circumstances of the case; and that to decide the questions raised under the summons would be to decide questions which ought never to be decided under such a summons, and dangerously to extend the scope and effect of the action of proving of the tenor. The pursuer did not merely ask the Court to declare that a valid deed was of a certain tenor, but she asked the Court to set up an ineffectual will, cancelled and obliterated in vital parts. Whether the cancellation, in the circumstances under which the will was found, is to have the effect in law of destroying the will, or whether the will can be restored as a legal instrument against the effect of the cancellation, is a question wholly unsuited for a process like this." In the case of Falconer, the deed was destroyed after the death of the granter, and the Court, after finding and decerning that the deed was of a certain tenor, reserved the question, Whether in law the mandate which authorised the cancellation operated ipso facto as a revocation, and was effectual although the deed was not actually destroyed until after the death of the mandant? Although, in Winchester, the deed was mutilated during the lifetime of the granters, the sufficiency of the mutilation to affect the rights of the beneficiaries appears to be a question very similar to that which was reserved in the case of Falconer. In both cases the deeds were cancelled; the one during the lifetime, the other after the death, of the granter; and the true question in either case appears substantially the same, Did the cancellation, mutilation, or destruction of the deed by the person who cancelled

ing the tenor will be pronounced, in order that matters may be restored to the state in which they were before the casus amissionis; the parties prejudiced by the deed being entitled to show in another process that it ought not to be enforced (ƒ).

§ 1320. An extract-decree of proving will prevent certification contra non producta in an action of reduction-improbation (g); but without prejudice to any investigations as to the genuineness of the original deed. Such an improbation, however, is not likely to be successful, if the tenor has been proved by the writer and instrumentary witnesses, or even by other witnesses deponing that they saw a deed of the tenor libelled duly signed and attested, without any appearance of vitiation or forgery (h), or if the tenor has been proved by adminicles under the hand of the party who propones the improbation. Lord Stair seems to hold that if the defender compeared in the action of proving, and if the tenor was proved by the instrumentary witnesses, the decree of proving will be equivalent to a decree of declarator of verity of the writ, and the defender will be excluded from afterwards insisting in an improbation (i).

(f) Falconer v. Stephen, 1849, 11 D., 1338. See also Forbes v. Lady Culloden, 1712, M., 13,236. (g) Stair, 4, 32, 11-Ersk., 4, 1, 59-Stewart's Answr., voce "Tenor," p. 306-Tait Ev., 212-Shand's Pr., 636; and Tait's MS. there citedMein v. Dunse, 1701, M., 2742-Anderson v. Lowes, 1675, M., 15,796-Bogle v. Anderson, 1683, M., 5192—Waddell v. Waddell, 1707, M., 12,593. See also Hill v. Cuthbertson, 1692, 4 B. Sup., 11-Brown v. Craw, 1698, M., 15,806; 4 B. Sup., 401, S. C. (h) Stair, 4, 32, 11-Ersk., 4, 1, 59.

(i) Stair, 4, 32, 10.

or destroyed it extinguish the right of which it was the evident? Had he authority to cancel or destroy it; and was the authority competently exercised? If the defender's argument in Falconer, that the mandate to destroy operated ipso facto as a revocation, was well founded, then the deed was not a valid instrument any more than the mutual deed in Winchester; a condition being attached to it which made it as inoperative as if it had been destroyed by the granter during his life; and, on the other hand, if the mutual deed in Winchester was not revocable by the sole act of one of the spouses, then, although lost or mutilated before the death of either of the granters, it became, it would appear, when restored and set up after the death of either of them, a complete and operative deed. It is not very obvious at first sight why parties seeking to restore a deed in such circumstances should be compelled to have recourse to a remedy other than the remedy which an action of proving of the tenor provides; and there is difficulty in drawing a distinction between the cases in which the validity of the lost or mutilated deed may be competently established in a proving of the tenor, and those in which its validity must be otherwise established. In every such action, indeed, the Court is forced to consider, as the first question in the inquiry, whether the circumstances under which the deed was lost did or did not import the extinction of the right of which it was the evident; and it is only when satisfied that they did not, a sufficient casus being otherwise instructed, that decree will be given; Winchester v. Smith, 1863, 1 Macph., 685-Falconer v. Stephen, 1849, 11 D., 1338.

§ 1321. It may be added that there is sometimes considerable difficulty in extricating mutual actions of reduction-improbation and proving of the tenor. If the improbation is first instituted, and the defender alleges that the deed has been lost, the Court will sist process, in order that he may raise a proving of the tenor. And this is a just course, because if a party prejudiced by a lost deed could exclude a proving of its tenor by raising an improbation of it, and obtaining decree of certification contra non producta, the result would not depend on the real merits and justice of the case, but on the mere priority of institution of the actions, and such a course would leave room for fraud. Yet where the defender in an action of improbation, instead of producing the deed called for, offers to set it up by proving its tenor, there may be reason to suspect that the alleged loss is a device for having the deed sustained without some nullity or informality being exposed, or without its falsity being discovered by comparison with genuine writings of the party (k). In such cases the Court endeavour to discriminate between improbations which are bona fide challenges on the head of forgery, and those of which the object is to embarrass the party in right of a genuine deed in his attempt to prove its tenor. Every case of this kind must depend on its own special circumstances. If the fair inference from these is that the deed was lost accidentally, or was destroyed without the connivance of the party who founds on it, the Court will give decree of proving its tenor, leaving the other party afterwards to establish his averments of falsehood (); whereas, if the circumstances throw suspicion upon the original validity of the deed, and if a special casus amissionis is not established, decree of proving the tenor will be refused (m), and the action of improbation will terminate by decree of certification contra non producta.

§ 1322. Where an action was raised to prove the tenor of a deed which had been deposited with a third person for conditional delivery to the grantee, the Court, while they decerned in the action, directed that only one extract of the decree should be issued, to be placed in the hands of the depositary on the same terms as the original deed (n).

(k) See this difficulty noticed in Dirleton and Stewart, voce "Tenor;" and in Brown v. Craw, 1699, M.. 15,806; 4 B. Sup., 401, S. C. (1) See Ker v. Kay, 1880,

8 S., 1008-E. Lauderdale, 1770, Pat. Ap. Ca., 234-Waddell v. Waddell, 1707, M., 12,593-Anderson v. Lowes, 1675, M., 15,996. (m) See Fumarton v. Lutefoot, 1675, M., 1755-Paterson v. Houston, 1837, 16 S., 225-Graham v. Graham, 1847, 10 D., 45. (n) Ferrier ». Berry, 1824, 3 S., 226.