[1704] Mor 15810
Subject_1 TENOR.
Subject_2 Date: My Lord Register and Mr George Douglas
v.
The Heritors of Birse
26 December 1704
Case No.No. 47.
Pregnant adminicles of a decree of Prorogation of a tack of teinds sustained.
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My Lord Register, and Mr. George Douglas his factor, pursue a reduction and improbation of the heritors of Birse their rights and titles to their teinds.
The defenders produce a three nineteen years tack to Gordon of Clunie, in the year 1585, which they allege was prorogated for six nineteen years in the year 1618, and the first extract having miscarried by reason of the tacksman’s selling a great part of his lands to several heritors, they raise and repeat a proving of the tenor of the prorogation, and insist upon several pregnant adminicles; as, 1mo, The original tack; 2do, A copy of a decreet of augmentation in the year 1618, imposing a considerable burden upon the tacksman, and bearing that a recompence was granted in consideration of that burden; 3tio, The minute-book, expressing the recompence to be a prorogation of six nineteen years; 4to, A sub-tack relative to the principal tack and prorogation, and sub-setting a part of the teinds for the same years to which the prorogation extended; 5to, Possession conform; 6to, Offered to prove by witnesses, who saw the prorogation amongst the records shortly before the late fire.
To all which it was answered: That the tenor of a decreet cannot be proved, because the validity of it depends upon several formalities, which witnesses are not presumed to know, nor allowed to prove; and by express act of Parliament, the tenor of horning and executions thereof cannot be proved; and there is par ratio, and stronger in the case of decreets, which are judicial acts. Lawyers have been for many years of that opinion; and so my Lord Dirleton does fully express himself upon the word tenor.
It was replied: There is no law against proving the tenor of decreets, nor any reason nor uniform practice in the contrary; and the 94th act James VI. anent
hornings, is a particular statute in that case, which cannot be extended, but affords a great argument for admitting of tenors in other cases; for, by that act it is clear that tenors, even of executions of hornings, were then allowed; and seeing the law was not extended to decreets, or other executions, there is no place to argue from it. And as to Dirleton’s opinion, it is in the case of a comprising, which depends upon great variety of formalities and executions, and is also a decreet. Yet, upon the 29th of June, 1675, in the case of Birny against Montgomery, No.25. p. 15796. a pursuit for proving the tenor of a comprising was sustained upon pregnant adminicles, the executions of comprising being extant and entire; and in this case the adminitles are most plain, especially the decreet of plat contains a great augmentation, and burden upon the tacksman, and mentions a recompence given; and the proper and only recompence allowed in law is a prorogation, which proceeds as a consequence of the augmentation, without any separate summons, execution, or process; so that the heritors recovering that decreet of plat, there can be no question of sustaining the tenor. “The Lords admitted the adminicles and tenor to probation.”
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