Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Proof by Witnesses
Date: 23 February 1671
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In an action for making up the tenor of a lost contract of marriage, for adminicling the wife's liferent provision in that contract, there was produced a charter and seasine relative to a contract of marriage of such a date: this was found sufficient for instructing the contract in that part; but when they came to make up to the provisions in favours of the bairns of the marriage, they had no other way but by offering to prove by the writer and witnesses in the contract that they were such as they did condescend upon, which being but a small competency, and noways unsuitable to the father's quality, this manner of making up behoved to be received. Against which it was alleged,—That this were a most dangerous preparative to make up a writ by witnesses, though they be the witnesses insert, where there are no adminicles in writ that can be adduced for making it appear that ever there was any such writ. Replied,—That they have adduced adminicles in writ for making appear there was such a contract, and that by it the wife was provided in such a jointure; and all contracts having clauses of provision in favours of the bairns, which provisions are offered to be proven per testes instrumentarios, ye cannot divide the contract so as to stand pro parte and fall pro altera parte, especially they being noway exorbitant.
The Lords found it might be made up by the witnesses insert.
