A suit for making up the tenor of a comprising was sustained, in respect adminicles were most pregnant, and the executions were extant and entire.
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A pursuit for making up the tenor of a comprising was sustained, in respect the adminicles were most pregnant; and, in special, the executions were still extant and entire.
Clerk, Monro.
*** It was thought, that much caution and tenderness should be used in processes of the nature foresaid, for proving the tenor of comprisings; seeing comprisings are to be considered either as decrees or as executions; and, in effect they are both upon the matter; in respect the messenger decerns, adjudges, and dispones the lands and others comprised; and therefore the same ought to be subscribed, both by the messenger, who in subsidium doth that which the party ought to do, and doth dispone his estate in satisfaction of his debt, and by the clerk of the comprising, as a decree; and the tenor of decrees cannot be proved but by extracts; and a comprising being, as said is, processus executivus, and ultimate execution, it ought not to be proved but per relationem nuncii, and execution under the messenger’s hands. And it were hard that executions should be made up by witnesses, and probation of the tenor, seeing there may be a nullity in the same if they were extant; and though witnesses may remember they had seen executions, they can hardly remember upon the precise tenor of all the words of the same; and if the tenor of the executions might be made up, there should be no security, seeing prescription, which is the greatest security of the people, may be evacuated, upon pretence that’there was an interruption by the execution of a summons, but that the same, being lost, is made up, by proving the tenor; and by an act of Parliament, K. Jam. VI. Parl. 6. Cap. 94. it is ordained, “That the tenor of letters of horning, and executions thereof, is not proveable by witnesses;” and there is parity, if not more reason, as to comprisings, whereby the greatest estates may be taken away, by a decree for proving the tenor.
