Proving of the tenor, in what cases dispensed with?
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It comes sometimes to be a question, Whether a lost writ can be supplied by adminicles, without a proving of the tenor, or if a formal proving of the tenor be necessary. As to which, it was laid down as a rule, That if the writ is such, upon which a permanent right is to be set up, or on which execution is to follow, such writ cannot be supplied without a proving of the tenor: But if the writ be only such as imports the extinction or restriction of a debt, it may be supplied by adminicles without a proving of the tenor.
Accordingly, in the present case, where the question was concerning a contract said to have been entered into between Hay of Aberlady and Maxwell of Friercase in the year 1644, for restricting to securities certain rights, ex facie irredeemable in the person of Aberlady, to certain parts of the estate of Friercase, the Lords found, that it was competent to Glenriddel the pursuer, to found upon the documents produced to instruct the restriction of the rights in Aberlady’s person by the contract 1644, without a formal proving of the tenor of that contract, and found the documents produced sufficient for that purpose.
