been held not to be evidence against his landlord of the quantity of manure laid on the farm (g), or of the sum expended by the tenant on repairs (h). And the private books of one partner were held not to be admissible against the representatives of his copartner (who was not proved to have seen them), to instruct payments alleged to have been made by the former to the latter (). The books in these cases were considered not to have the trustworthy character of those which are made up in the ordinary course of business. Yet where a question as to the intromissions of a person (e.g., an executor) arises at an interval of several years, the Court will pay regard to entries appearing to have been made in bona fide at the time in books which do not come within the category of mercantile or business books (k). And if such books are adduced to prove the receipt of money, they will also be admitted to show that it was paid away again (1). A factor's or steward's books will probably be admitted to prove payments made on behalf of his constituent (m).

§ 1181. Mercantile and business books will only be received if they appear to have been regularly kept, and if they are free from interpolations and marks of concoction; for if a party were allowed to found on books which are open to the suspicion of having been fabricated, a very wide door would be opened to fraud (n). The admissibility of books, when regularly kept, is limited to such mat

(g) Paterson v. Blair, 1819, 2 Mur., 179. and And., 23.

were no company books. Clerk.

(h) Laing v. Hay, 1829, 1 De.

(i) Smith v. Logan, 1826, 5 S., 32; affd., 4 W. S., 47. There (k) Fisher v. Fisher, 1850, 13 D., 245, per L. Just.

(1) Campbell v. M'Cartney, 1843, 14 D., 1086-M‘Kay v. Ure, 1847, 10 D., 89. See infra, § 1182. (m) The view in the text is supported by Ersk., 4, 2, 14, and Tait Ev., 275; where it appears that the factor's oath in supplement is admissible. (n) Ersk., 4, 2, 4—Tait Ev., 274-Ivory v. Gourlay, 1816, 4 Dow, 467. This was an action by Gourlay's assignee against a bankrupt estate for payment of four parcels of flax, furnished by Gourlay to the bankrupt. The first item was instructed by an account with a note indorsed in the bankrupt's handwriting, and was regularly entered in Gourlay's books. The second had been entered in his day-book to the debit of another person connected with the bankrupt, but had been carried to the bankrupt's debit in the ledger, a marking to that effect in a different handwriting appearing on the margin of the day-book. The third parcel was entered in the day-book at the bottom of a page, out of its order in date, and seemingly interpolated. The fourth was regularly entered; and latterly it was not disputed. The pursuer founded on his books to prove resting-owing of all the items, and to prove continuousness of the account as eliding prescription of the first item. On this and other evidence the Court of Session gave decree for the whole; but the House of Lords reversed the judgment, and remitted the case, with a finding that there was sufficient evidence of the first item (unless it was prescribed), but not of the second and third items.

ters as fall directly within their province, and of which they are the ordinary and proper record. Accordingly, in an action founded on alleged guarantee for the price of goods, where goods had been previously furnished on the defender's credit, and paid for by him, and where the books of the pursuer contained an entry that the furnishings for which payment was demanded had been made to the same person, and on the same order, the Court held that the books, with the oath in supplement of the pursuer's salesman, was "not a lawful course of evidence" to establish the averment of guarantee (o).

§ 1182. Nor are mercantile books full proof in favour of the merchant, being his own writings, made up ex parte (p). This principle was applied in a narrow case where a bank account, containing entries to the debit and credit of the same person, was entered in separate books (a "deposit journal" and a "ledger "); and the bank failed in consequence to prove their advances, although it was admitted that if the entries had been in a continuous account, the customer could not have founded on the one side of it without giving effect to the other (r).

§ 1183. Partly on the principles above illustrated, but chiefly on account of their being written admissions, a party's books may be used in evidence against him, notwithstanding the general principle that undelivered documents are like unuttered thoughts, and not admissible in evidence. The competency is not limited to the business books of a party. Thus private books holograph either of a merchant (s), or of one who is not in trade (t), are admissible to prove payments made to him, goods received by him, and similar facts. And business books in the handwriting of a party's bookkeeper are admissible for the same purpose, the party being presumed to have authorised or been privy to their contents (u). Entries in a pass-book kept by the creditor in certain debts, and made either by her or by her daughter under her directions, were held to prove payments to account; which, being indefinite, were attributed

(0) Buchanan v. Scott, 1816, noted in Hume D., 422. (p) Hatton v. Buckmaster, 1858, 15 D., 574. (r) British Linen Co. v. Thomson, 1853, 15 D., 314; see supra, ? 1180. (s) Purveyance v. Cuningham, 1677, M., 12,623. The books proved both the receipt of the principal sum and the payment of several years' interest. (t) Wardlaw v. Gray, 1662, M., 12,620-Lowrie v. Drummond, 1675, M., 12,622. To understand this report see the case between the same parties in 1675; 2 B. Sup. (Stair's Decisions), 181-Burnett, 1662, 2 B. Sup., 296--Currier v. Halyburton, 1688, M., 12,625. (u) Knox v. Martin, 1850, 12 D., 719. This

rule is observed in daily practice.

VOL. II.

E

to interest on a bond, although in her oath of calumny she deponed that they were made to account of bills (x). So the triennial or sexennial prescription may be overcome by entries of payments of interest, &c., in the debtor's books written by himself or by his book-keeper (y); and in questions of onerosity of bills, the books of the holders are often important evidence against themselves (z). A party's books are also admissible against him to prove a course of dealing, when that is relevant to the issue (a),1

§ 1184. The books and balance sheet of a company are conclusive in questions between the partners or their respective executors, as to the share which each partner drew (b). And on the ground that all the partners are presumed to be aware of entries made by the company's book-keeper, these were admitted in a question whether a private debt of one partner had been paid from the company's funds, or with money furnished by a third party (c).

§ 1185. A detached account charge and discharge was once held to prove repayment of money advances, having been holograph of the creditor, and found in his repositories after his death (d). But the more just view seems to be against admitting such accounts, unless docqueted or signed, because they are often made in anticipation of transactions which may have never been completed (e).

The rules as to the effect of the books of an agent against his principal, a cedent against his assignee, and the like, are noticed elsewhere (f); as are also the rules as to the authentication of docqueted accounts (g).2

(x) Couper v. Young, 1849, 12 D., 190.

2 S., 118. See also Berry's Reps. v. Wight, 1822, 1 S., 433.

?? 342, 362.

4 S., 331.

14 S., 803.

(y) Black v. Shand's Crs., 1823, (z) See supra, (a) Blair v. Russell, 1828, 6 S., 836-Calder v. Calder, 1825, (b) Blair v. Russell, supra. (c) Kenney v. Walker, 1836, (d) Millar v. Bonar, 1708, M., 12,626. (e) Nasmyth v. (f) See the chapter on Admissions, infra, ? 1434, (g) Supra, 2788, et seq.

Bower, 1665, M., 12,621.

et seq.

1 In an action of resting-owing, where the defence was non-liability, a proof was allowed, and partial excerpts from the pursuer's books produced. It was held incompetent to tender these excerpts with a view to prove payment, no such plea having been stated, and no excerpts or productions made with reference to such a defence; Goodwin v. Maclean, 1857, 19 D., 878.

2 It was held by the Second Division that an entry in a bank pass-book, duly initialed by the officers of the bank, being a writ in re mercatoria, is a probative writ as against the bank, and cannot be challenged ope exceptionis, but only by reduction. But the House of Lords, reversing the decision of the Court of Session, held that such an entry was merely prima facie evidence against the bank, and was challengeable ope ex

CHAPTER XII.-OF NOTARIAL INSTRUMENTS.

§ 1186. A notarial instrument is the narrative under the hand of a notary, detailing procedure which has been transacted by or before him in his official capacity. It is not made on oath, but is within the general oath de fideli administratione, which the notary takes when he enters on his office. A notarial instrument is the only competent mode of proving those facts of which it is the recognised record; whereas upon other matters it is usually inadmissible, because, being beyond the powers intrusted by law to the notary, it is non-official.

§ 1187. Thus, on the one hand, an instrument of sasine is indispensable to the proof of infeftment by symbolical delivery (a); while under the modern system infeftment is constituted by expeding and recording an instrument in the statutory form (b).1 A no

(a) Stair, 4, 42, 9-Ersk., 2, 3, 34. 11 Vict., c. 49, 25.

(b) 8 and 9 Vict., c. 35, ? 1-10 and

ceptionis; Rhind v. Commercial Bank, 1857, 19 D., 519. Lord Cowan considered that these entries in pass-books were in every respect equivalent to deposit-receipts :—“ I think it clear that, in the absence of written evidence, or of an offer to prove the entry a mistake by the oath of the pursuer, the pass-book must be taken hoc statu, and until reduced, as good evidence of the debt;" reversed, House of Lords, 10th February 1860, 3 Macq., 643. In Fraser v. Bruce it was held that an entry in a depositor's pass-book with a savings bank, of a payment made to a third party, who affixed his signature to an entry, is competent evidence of the receipt of the money by the third party; 1857, 20 D., 115. Many recent cases as to the admissibility of entries in the books of deceased persons against their interest will be found in the English reports; Drett r. Corser, 21 Beav., 52-Webster v. Webster, 1 F. and F., 401—Bright v. Legerton, 7 Jur. N. S., 559-Rawlins v. Rickards, 28 Beav., 370.

1 It may be convenient to note briefly the alterations, in so far as they bear upon the forms of deeds noticed in this and other chapters, effected by the Titles to Land Act, 21 and 22 Vict., c. 76. The main feature of the act is the recording a conveyance of lands in the Register of Sasines, in place of an instrument of sasine following upon the conveyance. An instrument of sasine is therefore (21) no longer necessary. Where it is not desired to record the whole of the conveyance, the act (22) authorises a notarial instrument to be expede in favour of the party to whom the conveyance is granted, in which such parts of the conveyance as relate to the lands in which a real right is desired to be obtained are set forth. "The object of the notarial instrument is simply to furnish a certified excerpt from the conveyance." Section 4 dispenses with instruments of resignation ad remanentiam, and provides that, in place thereof, the warrant of resignation be recorded in the Register of Sasines, or a notarial instrument be expedo and recorded as in the case of an ordinary conveyance. When an instrument of resignation ad remanentiam is used, it may be recorded (? 19) at any time during the life of

tarial instrument is the only competent proof of resignations ad remanentiam (c); and at one time it was required to resignations in favorem; but, after having fallen into desuetude (d), it was abolished by statute with regard to the latter class of actus legitimi (e). An instrument by a notary is necessary to prove intimation of an assignation or translation (f), unless when the intimation is acknowledged by a writing under the debtor's hand (g). By statute a notarial instrument is indispensable to a disentail (h); and to completing the title of the creditor's heir, and in some cases that of his singular successor, under the Heritable Securities Acts (i). The protest of a bill or promissory-note, and all other protests, can only be proved by notarial instruments (k). A writ of this nature was also required for proving requisition and consignation of the sum borrowed under the obsolete security of wadset (1).

§ 1188. On the other hand, wherever law does not require the interference of a notary, his acts are unauthorised, and his instruments are inadmissible. Thus an instrument of protest upon the fact was rejected as evidence of wrongous imprisonment in an ac

(c) Stair, 2, 2, 2-Ersk., 2, 7, 19, 20. 11 D.,

37.

(d) Renton v. Anstruther, 1848, (e) 8 and 9 Vict., c. 35, § 9. (f) Stair, 4, 42, 9— Ersk., 3, 5, 3-2 Bell's Com., 17. (g) Ersk., 3, 5, 4-Bell's Com., supra— Bell's Pr., 1465—Supra, ? 766. There are also equivalents to intimation, which do not require the intervention of a notary, e. g., the assignee's raising action against the debtor, and the debtor's paying him interest; see Bell's Com., supra.

(h) 11 and 12 Vict., c. 36, ?? 3, 12. (i) 8 and 9 Vict., c. 31, 22 1, 4, 5; extended to all heritable securities by 17 and 18 Vict., c. 62. 413-Bell's Pr., 339-Thomson on Bills, 443.

(k) 1 Bell's Com.,

(1) Ersk., 2, 8, 19, 25.

the party in whose favour it is expede. An instrument of sasine being no longer necessary, the precept of sasine is, by section 5, dispensed with. By sections 6, 7, 8, and 9, writs of confirmation and resignation (written on the conveyance itself) are substituted for charters of confirmation and resignation. Other sections of the act provide for the simplifying and shortening of the forms by which a party conveys lands to which he has only a personal right. Section 33 extends the provisions of 6 and 7 Will. IV, c. 33 (by which instruments of sasine are declared free from challenge on the ground of erasures), to recorded notarial instruments. None of the provisions of the act are compulsory (20), so that all the forms for the constitution, transmission, and completion of land rights in use before the passing of the act may still be employed. See Analysis of the Titles to Land Act, by Mr George Ross, Advocate, and Menzies' Lectures on Conveyancing, 3d edition, 1863. Similar changes as to the forms applicable to burgage tenure are effected by a later statute, 23 and 24 Vict., c. 143.

2 A notarial protest is not now necessary to prove the presentment and dishonour of a bill or promissory-note, in order to preserve recourse against the drawer or indorser. That may be proved prout de jure to the effect of preserving such recourse; 19 and 20 Viet., c. 60, % 13.