In the proof of a tenor; the defender's advocate, cited as a witness for the pursuer, bound to depone, whether he saw the writ, and what its tenor; but not to divulge any thing communicated to him, which could not appear from the writ itself.
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The Creditors of Wamphray having pursued probation of the tenor of a contract of marriage betwixt Wamphray and his Lady, whereby the Lady dispones her estate of Wamphray in favours of her husband and his heirs, constituting him fiar, whereby the estate might be liable to his debts: Witnesses were adduced for probation of the tenor, amongst whom Mr David Dunmore advocate, was adduced as one.—It was alleged for the Lady Wamphray, That Mr David Dunmore was not a habile witness, because he had been advocate for the Laird of Wamphray as his ordinar, and so could not be brought as a witness to discover the weakness and secrets of his cause; for suppose that Wamphray should have consulted him how to defend against the probation of the tenor, and had acknowledged there was such a writ, he could not be adduced to depone that he knew that there was such a contract, as being known to him in manner foresaid.—It was answered, That the privilege of advocates can only relate to the secrets communicated to them by their clients; but a contract of marriage being so solemn a deed amongst so considerable persons, can be no secret, and therefore advocates have still been put to depone upon the having of writs, though put in their hands by their clients; and therefore, on the like reason, the probation of a tenor being only the probation of the existence of a writ, and what the tenor of it was, he ought to depone: As the Lord Gosford's oath was taken upon the tenor of a decreet arbitral, upon production of an information under his servant's hand, when he was advocate, giving direction for the form of the decreet arbitral, which the Lord Gosford did remember, and acknowledged that it was so.
The Lords ordained Mr Dunmore to depone if he saw the contract of marriage in question, and what the tenor of it was; but would not put him to depone concerning the existence or tenor of it, by what had been communicated to him by his client at consultation, otherways than by the sight of the writ itself.
Fol. Dic. v. 1. p. 26. Stair, v. 2. p. 388.*** This case is reported by Gosford in the following manner:
The Creditors of the Laird Wamphray, against the Lady Wamphray, in the proving of the tenor of the contract of marriage betwixt the Laird and Lady, at the instance of the said creditors against the Lady; Mr David Dunmore advocate being cited, as a witness by the creditors; it was observed, That he could not be received, because he was an advocate, and could not be bound to depone upon his client's secrets; and that he was employed for the parties.—It was answered, That he had not been craved to depone upon any consultation or private advice, but upon the tenor thereof; the Lady having most maliciously destroyed her own double, and her husbands, of purpose that her husband's creditors, who were deeply engaged for him, might be defrauded; whereas it was proved by the contract of the husband, in contemplation whereof, the creditors did engage.——The Lords did ordain the said Mr David to depone upon the true tenor of the contract; seeing that could not concern any private advice or secret of his calling or employment.
