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 (2). A party's books are also admissible against him to prove a course of dealing, when that is relevant to the issue (a).

$ 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 (6). 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 wliether 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 liis 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 (9).2

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

(y) Black v. Shand's Crs., 1823, 2 S., 118. See also Berry's Reps. v. Wight, 1822, 1 S., 433.

(2) See supra, 22 342, 362.

(a) Blair v. Russell, 1828, 6 S., 836–Calder v. Calder, 1825, 4 S., 331. (6) Blair v. Russell, supra.

(c) Kenney v. Walker, 1836, 14 S., 803. (d) Millar v. Bonar, 1708, M., 12,626.

(@) Nasmyth v. Bower, 1665, M., 12,621.

(f) See the chapter on Admissions, infra, 2 1434, (9) Supra, 2 788, et seq.

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 er

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 (6). A no

(b) 8 and 9 Vict., c. 35, % 1–10 and

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

9

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 ( 1) no longer necessary. Where it is not desired to record the whole of the conveyance, the act (& 2) 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 expede 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 (s), 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 (?).

$ 1188. On the other hand, wherever law does not require the interference of a notary, his acts are unauthorised, and his instruinents 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.

(d) Renton v. Anstruther, 1848, 11 D., 37. (e) 8 and 9 Vict., c. 35, $ 9.

(f) Stair, 4, 42, 9Ersk., 3, 5, 3—2 Bell's Com., 17.

(9) Ersk., 3, 5, 4—Bell's Com., supraBell's Pr., 1465—Supra, 2 766. 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, 223, 12.

(0) 8 and 9 Vict., c. 31, 22 1, 4, 5; extended to all heritable securities by 17 and 18 Vict., c. 62. (k) 1 Bell's Com., 413--Bell's Pr., % 339—Thomson on Bills, 443. (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 Vict., c. 60, 2 13.

а

tion of damages (m), and as evidence of the state of a vessel in an action on a policy of insurance (n), and as evidence of the insufficient state of a mill in an action for abstracted multures (0). In these cases the instrument was held probative of the fact that a protest had been taken, that being a proceeding in presence of a notary,—but inadmissible to prove the state of matters on which the party thought fit to protest, the proper evidence of these being by witnesses examined on oath. This is a more correct mode of dealing with such evidence than that which was sometimes adopted when the Court used to sit both as judge and jury, and when it was not unusual to admit notarial instruments as evidence on matters on which they were non-official, provided they were adminiculated by evidence on oath (P). But even at that time the Court more than once refused to admit notarial instruments as evidence of such facts ().

In like manner a notarial instrument is inadmissible as evidence of such intimations or citations as are by law intrusted to messengers-at-arms (8).

§ 1189. On the same principle, while a notarial instrument is probative of the facts which are intrinsic to its purpose as an official narrative (t), it is not admissible to prove such as are extrinsic (u). So an instrument of intimation of an assignation is not admissible to prove the existence either of the assignation or of the right assigned (x). Nor is an instrument of sasine presumptive evidence of the existence of its warrant (y), except in ancient matters, or when prescriptive possession has followed on it (). Owing to the sasine in favour of an heir entering by hasp and staple not proceeding on a precept, the instrument thereupon is probative both of the fact of the entry and of the heir’s propinquity (a).

It is also thought that a notarial instrument will be admissible on extrinsic matters, where, from the notary and witnesses having died, secondary evidence may be received.

(m) Hosie v. Baird, 1828, 4 Mur., 417.

(n) Thomson v. Bisset, 1823, 3 Mur., 297.

(0) Clark's Tr. v. Hill, 1827, 4 Mur., 205. (p) Lawrie v. Gibson, 1671, M., 12,501—Glass v. Stuart, 1715, M., 12,507—Stair, 4, 42, 9-Ersk., 4, 2, 6.

(r) Anstruther v. Thomson, 1611, M., 12,499— Lawrie v. Miller, 1629, M., ib.-See also Malvenius v. Hepburn, 1686, M., 583. (8) Haswell v. Mag. of Jedburgh, 1714, M., 12,270.

(1) Stair, 4, 42, 9Ersk., 2, 3, 34, and 4, 2, 5-Bell's Pr., % 2220, 1—Tait Ev., 4–Balfour v. Lyle, 1832, 10 S., 853.

(u) Ersk., 4, 2, 5-Bell's Pr., supra. (y) Stair, 2, 3, 19–Ersk., supra-Bell's Pr., supra-D. Roxburghe v. Kerr, 1822, 1 Sh. Ap. Ca., 157-Ker v. Ker, 1583, M., 12,509-- Norval v. Hunter, 1664, M., 12,517— Mitchell v. Cowie, 1672, M., 12,520.

(2) Stair, supra—1594, c. 218. (a) Stair, 2, 3, 19–Ersk., 2, 3, 38—-Cases in M., 12,513, el seq.

(2) Ersk., supra.

§ 1190. A notarial instrument is only admissible to prove facts palpable to the senses, not to prove matters of opinion (b).

§ 1191. The admissibility of notarial instruments arises from their being executed by persons duly qualified. But in order to prevent fraud, and to protect instruments ex facie probative, it is enough if the persons whose signatures they bear were habit and repute notaries at the time (c). Acts by a notary for his own behoof in matters in which he is personally interested are invalid (d); but it is doubtful whether he may not act against his interest, e.g., by giving sasine upon a precept granted by himself (e). The validity of an instrument, however, will not be impaired by an interest which has emerged after its date (ƒ). It is "irregular and unsuitable” in the managing partner of a bank to act as notary in the affairs of the bank; but a mere stock-holder seems not to be disqualified (g). In instruments which require a procurator the same person cannot act as such and notarially (h). A notary may act in matters in which his relations are concerned (i); although it would seem that he cannot officiate in favour of his wife (k).

(b) Miller v. L. Cullernie, 1541, M., 12,498. (c) Cunningham v. Sempil, 1553, M., 3091-Seton v. Cant, 1593, M., 12,448-L. Huntly v. L. Forbes, 1619, M., 12,449-Spence v. Reid, 1610, M., 3092-Douglas v. Chieslie, 1615, M., ib.—Stair, 4, 42, 9-See infra, § 1215. (d) Leith Bank v. Walkers, 1836, 14 S., 332— of a notary, 36-Duff Feud., 14; 117-See also See infra, ? 1215. (e) See More's

Russell v. Kirk, 1827, 6 S., 133-Office L. Gormock v. the Lady, 1583, 16,874. Notes, 404-Duff Feud., 117-Cheap v. Philp, 1667, Dirl. Dec., 34-Howieson v. Gibson, 1629, M., 645; 16,879—Sim v. Clark, 1831, 10 S., 85—Russell v. Kirk, supra. (ƒ) Mackenzie v. Smith, 1830, 9 S., 52.

1813, F. C.

(g) Farries v. Smith, 9th June (h) Scott v. L. Drumlanrig, 1628, M., 846-Mack. Inst., 3, 5, 3.

(i) Reid v. Grindlay, 1830, 9 S., 31-Duff Feud., 14; 117. 1848, 10 D., 1365.

(k) See Tait,

3 The act 18th Vict., c. 25, enacts (? 1), that when any person called as a witness in any court of civil judicature in Scotland, or requiring or desiring to make an affidavit or deposition, shall refuse or be unwilling, from alleged conscientious motives, to be sworn, it shall be lawful for the judge, or other presiding officer, to allow him to make a solemn affirmation or declaration. In the case of Andrew Marshall, petitioner, 1862, 24 D., 376, it was held that the act did not apply to the case of a notary-public, and that the oath de fideli, which a notary is required to take on his admission, could not be dispensed with.

4 A trust-disposition and settlement of heritage and moveables, executed for the granter by two notaries, was reduced as not validly authenticated, because one of the notaries (who was a law-agent, and there being a declaration in the deed that the trustees might employ and pay one of their number as law-agent) was nominated a trustee under the deed; Ferrie v. Ferrie's Trustees, 1863, 1 Macph., 291. See supra, 2 676, note 7.