§ 1323. Where the creditor in a bond had succeeded in proving the tenor against one co-obligant, the Court would not receive the decree as proving the casus amissionis and adminicles in an action by him against the other debtor, but required the creditor to lead his whole proof of new (o). CHAPTER VI.-OF ACTIONS OF TRANSUMPT. § 1324. Where a person has an interest in a deed to the custody of which another has right, he may get an authenticated copy or "transumpt" of it prepared by means of an action of transumpt (a). This action was also used for the purpose of having a lost notarial instrument made up from the notary's protocol after his death (b). It is competent either before the Judge Ordinary or the Court of Session, and is chiefly useful where the deed cannot be recorded in a public register (c). The same action may comprehend a number of deeds, and may be laid either on an obligation under the hand of the defender to grant transumpts, or on the pursuer's interest in the subject of the deed (d), e.g., where it forms part of the titles to his property. The summons calls on the party having the custody of the deed to produce it for transumption. The granter and grantee, or their representatives, must either concur in the action, or be called as defenders. All others claiming interest may be cited edictally (e). § 1325. The writings are produced in Court, and correct duplicates, called "transumpts" of them, are made out, and are collated and signed by the clerk of court (f). The pursuer thereupon obtains decree declaring that the transumpts shall bear as full faith as extracts from the record of the court. (a) The substance of (0) Broomhall v. E. Lauderdale, 1665, M., 14,028. this section is taken from Ersk., 4, 1, 53, and Tait Ev., 202. See also Stevenson v. Pitcairn, 1711, M., 2456. (b) Stair, 2, 3, 25—Ersk., 2, 3, 43—Stirveling v. Monteith, 1566, M., 12,447. See also Irving v. Corson, 1681, M., 12,522-Supra, ? 1210. (c) In Stevenson v. Pitcairn supra, where two persons were interested in certain bonds, the Court ordered them to be recorded, each party taking out an extract at his own expense. (d) In the latter case the pursuer must bear the ex(e) Ersk., 4, 1, 53. (f) Ersk., supra. The pense; Ersk., 4, 1, 53. style of the summons given in 3 Jurid. Styles makes the transumpts be authenticated by the Clerk-Register when the action is in the Court of Session. Transumpts obtained by this means are probative in ordinary cases. But they will not be received if the deeds are challenged on the ground of falsehood (g). A transumpt taken in the Court of Session-not one taken in an inferior court-would probably satisfy the production in reductions on other grounds (h). § 1326. As already mentioned, it is competent to have lost, destroyed, or mutilated, registers of births, deaths, and marriages under the recent Registration Act transumed on a summary petition to the Court of Session (i). § 1327. Notarial copies of documents are excluded, under the rule which requires the best evidence (k). But they will be received if the original documents have been lost or destroyed (1); and they are evidence in any case where the parties consent to their admission. Copies prepared and authenticated by foreign notaries of deeds which are retained by them, and of which only such copies are given out to the parties, seem to be admissible (m). (g) Ersk., supra. 55; noted supra, ? 1157. (m) See supra, 2 128. (h) See supra, ? 1275. (k) See supra, 134. (i) 17 and 18 Vict., c. 80, 144. (1) See supra, TITLE IV. OF THE RULES AS TO PRODUCING WRITINGS, AND § 1328. The rules as to the admissibility and effect of the different kinds of written evidence having thus been detailed, we proceed to consider how writings are produced in evidence, and recovered from persons who refuse access to them. The rules on these matters vary according as a document is in the hands of the person who founds on it,-of his opponent,-or of a stranger to the suit. I. Of Writings in the hands of the party who founds on them. When a writing is in the hands of the party who founds upon it, he may make it available in evidence by merely producing it, and (if it is not probative) proving its authenticity. In cases in the Court of Session, the production must in general be made at an early stage of the cause, in order that the party who has documents in his hands may not have an unfair advantage over his opponent. It is necessary that, "along with the summons and with the defence, the parties shall respectively produce the deeds or writings on which they respectively found, so far as the same are in their custody or within their power" (a). § 1329. For the same reason, the parties are required with their (a) 6 Geo. IV, c. 120, 3. Under this regulation if a party founds on a document in his own hands, but does not produce it from not intending to use it in evidence, the other party can insist for production; West Middlesex Assur. Co. v. Cleugh, 1840, 2 D., 1053. revised pleadings to produce any additional documents therein founded on, and which are in their hands (b). Documents in their hands which they mean to use in evidence, but on which they do not found in their pleadings, may be produced any time before the record is closed (c). But "after the record is made up and closed, it shall no longer be competent for the party in any case to produce any writing which was in his possession or within his power at the time of completing the record, unless he shall instruct it is noviter veniens ad notitiam; but it shall be competent to the parties" to "produce such writings previously in their power, as may be rendered necessary by the production of papers made by the other party after the record is closed" (d). It is the practice in the interlocutor closing the record to reserve right to the parties to make their productions within a short time, usually eight or ten days. § 1330. In cases tried by jury in the Court of Session, the production of writings is regulated by the Act of Sederunt, 16th February 1841, which applies, although the writings are in the hands of the party who founds on them (e). It provides that "all writings which are meant to be put in evidence at the trial of a cause must be lodged eight days before the trial, with the clerks of the Register House; and notice shall be at the same time given to the agent for the opposite party of the writings being lodged; and no writings but those lodged as aforesaid shall be admitted, except by consent, as evidence at the trial. But, nevertheless, it shall be competent to the Court to permit writings to be given in evidence at the trial on its being established to the satisfaction of the Court that they could not be lodged eight days before the trial, nor before the period at which they are actually produced or exhibited to the opposite party, and that notice to the opposite party had been given of the particular writing or writings proposed in such case to be produced" (f).1 (d) A. S., 11th July 1828, 55. (c) A. S., 11th This provision was (b) 6 Geo. IV, c. 120, ? 8—A. S., 11th July 1828, ? 55. July 1828, 54, 55. enforced in Brodie v. Brodie, 1827, 5 S., 900; and in the cases noted infra (i). (e) Cameron v. Cameron's Tr., 1850, 13 D., 412. 19. 1841, (f) A. S., 16th Feb. 1 In Maclean v. Maclean's Trustees, the pursuer moved for a warrant on the Lord Clerk Register or his deputes to transmit certain deeds, which had been recorded, to the clerk of the process, in order that the rule established by the Act of Sederunt, 16th February 1841, 19, requiring all documents to be used at the trial to be lodged with the clerk eight days before the trial, might be complied with. The Depute-Clerk Re § 1331. These provisions apply to cases tried of consent of parties by the Lord Ordinary without a jury (g), or by arbiters sitting as a jury (h), under the late Court of Session Act. § 1332. In applying the Act of Sederunt of 1828, the Court presume that documents are "within the power" of a party if they are in the hands of his law-agent or his servant (i). But he may overcome this presumption by showing that he applied unsuccessfully for the documents with a view to production before the record was closed (j).2 (g) 13 and 14 Vict., c. 36, 46. (h) Same Act, ? 50. (i) Wright v. Bell, 1836, 15 S., 242-Hamilton v. Cuthill, 1828, 7 S., 21-Peter v. Mitchell, 1826, 5 S., 193-But see Gordon v. Trotter, 1831, 10 S., 47. (j) Peter v. Mitchell, supra-See also Kerr v. D. Roxburghe, 1822, 3 Mur., 131. gister appeared, and objected to give up the deeds, maintaining that he was bound to do no more than attend and produce the deeds at the trial. The Court refused the motion, holding that the provision of the Act of Sederunt would be satisfied by the production of extracts of the deeds; Maclean v. Maclean's Trustees, 1861, 23 D., 1262. 2 Some uncertainty and difference of opinion has prevailed as to the application of section 55 of the Act of Sederunt, 11th July 1828. In Irvine v. Irvine, 1857, 19 D., 284, a letter addressed to the defender in an action, and admittedly all along in his possession, was allowed to be produced in the course of the defender's proof, after the record had been closed; it being alleged to be necessary in order to meet a point made for the first time in the course of the pursuer's proof. The Lord Ordinary (Handyside) held that the act applied only to writings and documents founded on by the parties in the record, or on which they meant to found and use in support of their respective averments on record; and that the letter in question-the use of which arose only in the course of the proof as a piece of evidence to clear up dates spoken to by witnessescould have neither value nor relevancy as affecting the statements on record. The Court adhered to the Lord Ordinary's interlocutor. In Anderson v. Gill the commissary refused to allow the claimant to produce, after the record was closed, a letter which had been all along in his possession; and the Court of Session and the House of Lords affirmed the judgment. It was argued, in the House of Lords, that the Act of Sederunt did not apply to the Commissary Court; but it was held that the act regulated procedure in that court, and that, from the position the objectors took up from the first, the claimant ought to have known the importance of the document, and produced it; Anderson v. Gill, 1858, 20 D., 1326; affirmed, April 16, 1858, 3 Macq., 180. In Borthwick v. Lord Advocate, where minutes of debate were laid before the whole judges, two questions were chiefly argued :-(1) Were the documents in the possession or within the power of the party at the time of completing the record? (2) Were the documents founded on in the record? The Court were of opinion, that to bring a writing within the provisions of the act it required to have been within the power of the party, and to have been founded upon in the record. But while they were of opinion that the act required the concurrence of these two conditions, considerable difference of opinion existed as to the application of the act to the documents in question. The question arose in a suspension. The suspender alleged that a decree and charge thereon obtained at the instance of the Lord Advocate on Her Majesty's behalf, proceeding upon an affidavit |