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In a declarator of non-entry, pursued by the E. of Rothes as donatar against L. Grant, an exception being admitted, bearing, that the Earl of Rothes had subscribed a precept of clare constat in favour of the defender, which was delivered to the defender, and so thereby become his evident; the defender thereafter delivered it to the pursuer, to the effect he might append the Earl's seal thereto, which was in the pursuer's keeping; which exception the Lords found could not be proved by witnesses, but only by the Earl of Rothes's oath, or else writ, seeing it tended to make up an evident, and which could not be lawfully done by witnesses; albeit the defender alleged. That this might as well be proved by witnesses, as the having of evidents in actions for delivery of writs, or as in actions of proving of tenors, which are proved by witnesses; which the Lords found not alike, seeing this, as said is, tended to make up an evident, which is not the intent of actions of delivery of writs, where the having is only to be proved; and in actions to prove tenors, there are ever relevant adminicles required, besides the witnesses, and a relevant cause of omission, besides the verity of the deed, and a specific tenor of the writ.
Act. Aiton.Alt. Belshes.Clerk, Gibson.
Fol. Dic. v. 2. p. 216. Durie, p. 245.
