Scottish Court of Session Decisions

Subject_1 TENOR.

Maxwell
v.
Dalswinton, &c

1743, Jan. 11.
Case No. No. 3.

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(In the note relative to this case, voc Recognition, Lord Elchies refers to the Session papers, which are in the volume marked No. 18. The question chiefly at issue was, Whether it was necessary to prove the tenor of a particular contract founded on, which was not extant? The opinion in general upon the subject which his Lordship held was, “That where nothing was to follow but the extinction of a right or debt, proving the tenor was not necessary; but where the right was not to be extinguished, but to subsist and be transmitted, then a proving of the tenor seemed to be necessary.” There was another question, Whether there could be recognition to the Crown, ob non solutum canonem, where the feu-duties belonged to a Lord of erection? The Court held the gift of recognition by the Crown in this case good, although the lands were Church lands, and belonged to a Lord of erection. Lord Elchies doubted of the soundness of this judgment, and it would seem had written his reasons for doubting upon one of the Session papers, but that paper does not appear.) Ed.