Definition
Proving of the tenor is a Scottish legal action brought to establish the original contents of a lost or destroyed deed. Where a written instrument has been lost and secondary evidence of its terms survives — through copies, witnesses, or other materials — this action allows a party to formally prove before a court what the deed contained, so that the established tenor (meaning, substance or purport) may stand in the deed's place for legal purposes. The action is essentially a proceeding in proof-substitution: it does not recreate the deed itself but creates an authoritative judicial record of what the deed said, which can then be founded upon as if the original instrument existed.
Common Confusion
"Proving of the tenor" is sometimes loosely equated with mere secondary evidence of a document's contents, but it is a distinct formal action, not simply an evidentiary argument. At common law and in most modern jurisdictions, the loss of an original document is handled through rules of evidence permitting secondary evidence (copies, parol testimony) once loss is established. Proving of the tenor is instead a standalone judicial proceeding — the point of the action is to obtain a court's authoritative finding on the contents, producing a result with res judicata effect. Researchers should not conflate it with the English and American evidentiary doctrine of the "best evidence rule" and its exceptions.
Why It Matters in Research
This term is specific to Scots law and appears almost exclusively in Scottish legal sources and in Anglo-American dictionaries that drew on Scottish practice references — principally Bell's Dictionary and Digest of the Law of Scotland. Researchers encountering this term in historical American or English legal dictionaries should treat it as a transplanted Scots law entry rather than evidence of a corresponding English or American action of the same name.
Several navigational points deserve attention:
First, the persistence of this entry across multiple editions of Black's Law Dictionary (from the first edition onward) reflects the compilers' habit of including Scots law terms without clearly flagging their limited geographic scope. A researcher finding this entry in Black's should not assume the action existed in American courts.
Second, the word "tenor" here carries its historical legal sense — the substance, purport, or general import of an instrument — not its common meaning of a musical voice range, nor the narrower sense sometimes given to it in bills of exchange (where tenor refers to the time of payment). Tracking the word "tenor" across legal sources requires attention to context; the same word appears in distinct legal doctrines.
Third, if researching Scottish private law or historical Scottish conveyancing, proving of the tenor connects to broader Scots doctrines on lost titles, sasine, and the requirements for establishing real rights in land. The Scottish Court of Session had jurisdiction over such actions. Modern Scots law has substantially reformed these procedures.
Fourth, Law Mind corpus researchers working in historical deed or title chain contexts — particularly involving Scottish estates or early Scottish-American land grants — may encounter references to this action in correspondence, pleadings, or title abstracts without further explanation. Knowing its procedural nature (a court action, not merely an evidentiary step) is essential to understanding the historical record.
Historical Dictionary Support
All three source dictionaries — both editions of Black's and Burrill's — give virtually identical entries: a single sentence defining proving of the tenor as a Scots law action for proving the tenor of a lost deed, with Bell's Dictionary cited as authority. The uniformity signals copying rather than independent research, and none of the entries elaborates on procedure, evidentiary standards, or the effect of a successful action.
Bell's Dictionary and Digest of the Law of Scotland (various editions through the nineteenth century) is the authoritative source behind all three entries. Researchers seeking more than the skeletal definition should go directly to Bell. The historical dictionaries are useful only to confirm the term's existence and general character; they provide no procedural depth.
Notably, none of the historical entries distinguish between the evidentiary question (what did the deed say?) and the procedural mechanism (a formal court action to establish that finding with binding effect). That distinction is the most substantively important thing about the term and is entirely absent from the dictionary record.
Jurisdictional Note
Proving of the tenor is a Scots law action with no direct English common law or American equivalent. English and American practice addressed lost instruments through evidentiary doctrines rather than standalone actions of this kind. Researchers working exclusively in English or American legal contexts will not encounter this action as a live procedural category.
Encyclopedia Cross-Reference
For background on evidentiary methods of proving document contents generally, see civpro_153: Methods of Proving Character — Rule 405 (Reputation, Opinion, Specific Instances) (The Law Mind Civil Procedure & Evidence Encyclopedia). Note that this encyclopedia entry addresses American federal evidence doctrine and is not directly applicable to Scots law procedure; it is useful only for understanding the broader category of proof-of-contents issues in an evidentiary framework.