instruments, the same principles apply as in improbations of private writings (t). The written attestation by the notary and witnesses cannot be cut down upon their merely deponing non memini (u); while their oaths admitting their subscriptions, but denying that the facts set forth took place, are to be received with suspicion (x). It is presumed that dead witnesses would have deponed affirmatively (y).

Several cases analogous to those in this chapter have occurred. in regard to messengers' executions (2).

CHAPTER XIII.—OF OFFICIAL WRITINGS BY MESSENGERS-AT-ARMS AND OTHER OFFICERS OF THE LAW.

§ 1213. The citation of parties and witnesses called to appear in courts of law, the intimation of various steps of legal procedure, and the execution of legal diligence, are intrusted to official persons, whose formal written narratives are the proper, and, in general, the only competent proof of the officers' proceedings. These writings are of two classes; 1st, the citation or schedule, by which the officer intimates the service to the party on whom it is made; and, 2d, the execution, which is returned by the officer to the Court or to his employer, and which is an authenticated narrative of the official act. Before noticing these writings separately, a few matters common to them both will be adverted to.

§ 1214. All writs or letters running in the name of the Sovereign may be executed by messengers-at-arms, and in civil matters by them only (a). Criminal letters and indictments, and warrants from the Court of Justiciary, may be served by messengers-at-arms, by macers of the court, or by sheriff-officers of the county in which they are executed (b). Services and intimations in the Court of Session are usually made by messengers-at-arms. But the Court

(1) See supra, 2 909, et seq.

(u) Supra, 2 910-Berry v. Balfour, 1822,
(y) Supra, 915-Wood v.

3 Mur., 116.
(x) Supra, 2 911.
Cramond, 1562, M., 12,650—L. Newbottle v. Simpson, 1594, M., 12,651.

(z) Infra, 2 1226, et seq.

-Acts 1672, c. 6, and 1693, c. 12.

242-2 Al., 327.

(a) Darling's Office of a Messenger, 3, et seq.

(b) 11 and 12 Vict., c. 79, 2 6—2 Hume,

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sometimes direct warrants for the apprehension of delinquents to be executed by its own macers; and in such cases these officers only are competent. The macers of the Court of Session also execute captions for the return of processes which have been borrowed (c). Services and intimations in other courts are intrusted to their respective officers. By statute, warrants by a Sheriff against parties charged with crimes committed within his jurisdiction, and warrants against parties as in meditatione fuge, may be executed in another county without being indorsed by the Sheriff or sheriffclerk of that county, provided they are executed by a messengerat-arms, or by an officer of the court from which they are issued (d). Witnesses in criminal proceedings and prosecutions for pecuniary penalties before any courts or magistrates in Scotland, although residing beyond their respective jurisdictions, may be cited by a messenger-at-arms, by an officer of the court or magistrate who grants the warrant, or by an officer of the place where the person cited may be at the time (e).

The Court of Session once authorised a sheriff-officer to cite witnesses and havers in Shetland in a case before them; the nearest messenger having been distant 300 miles from the place of service (s)."

A notary is not qualified to act as a messenger-at-arms or officer of court; and therefore, a notarial instrument is not admissible in place of an execution (9).

$ 1215. The faith placed in citations and executions thus depends on their being under the hand of the proper officers. They

(d) 1 and 2 Vict,

(c) Bell's Law Dic., voce Macer-Shand's Prac., 119. c. 118, 225.

(e) 11 Geo. IV, and 1 Will. IV, c. 37, & 8. (f) Mitchell, 1764, M., 7355. The application was not opposed. (9) Haswell v. Mag. of Jedburgh, 1714, M., 12,270.

1 The Court have refused to grant warrant to sheriff-officers to execute a decree of the Court of Session against a party at Kirkwall, in Orkney, although it was stated that there was no messenger-at-arms in the county of Orkney,—the nearest messenger residing at Thurso, in the county of Caithness. The Lord President (M`Neill) observed, —" I do not think there is such a case of necessity as will warrant us in granting the prayer of this petition, unless we are prepared to do so in every similar case;" Miller's Trustees, petitioners, 1856, 19 D., 139. In a previous case, however, the Second Division granted warrant to have a summons served in Orkney by a sheriff-officer. As such warrant can only be granted in virtue of the nobile officium of the Court, it is necessary that it should be signed in the Inner House ; James Cooper and Others, petitioners, 1854, 16 D., 1104. See also Kennedy, June 19, 1862, 24 D., 1131 ; and James Hoseason, petitioner, June 9, 1863 (not yet reported), where the application was made direct to the Inner House.

will, however, be sustained, if the persons whose signatures they bear were habit and repute qualified (h). Baron Hume doubts whether this applies to executions of criminal libels (i). A messenger, like a notary, cannot act in matters where he is personally interested (k). Relationship to the parties seems not to disqualifv (1).

§ 1216. Two witnesses used to be required in citations and +xecutions; but one is now sufficient in all of them, whether in civil or criminal processes (m); and in all diligences except poindings, where two witnesses are still required (n). Witnesses are not now required to citations of parties, witnesses, or havers un the Small Debt Acts (0), services and citations under the Sequestration Act (p), and citations of jurors or witnesses in civil or criminal cases (r).

§ 1217. All executions, and citations or schedules, may be either written or printed, or partly both (8).

I. Of the Officer's Citation or Schedule.

$ 1218. The citation or schedule—the writ by which the officer certifies the fact of service to the person upon whom it is madevaries in its form and requisites according to the nature of the service.

The citation on a summons in the Court of Session must be sub

(h) Stuart v. Hay, 1676, M., 3092—Lermont v. Lermont's Heirs, 1699, M., 3096— See Ogilvie, 1681, 3 B. Sup., 410— Tait Ev., 7—Supra, & 1191. An execution by a messenger who had been deprived of office, and his deprivation advertised in the public prints, was held ineffectual in Hunter v. Montgomery, 1732, M., 3097; and in Somerville v. Jarviswood, 1608, M., 3091, the Court seem to have considered that publication at the market-cross of the head burgh where the officer dwelt would exclude the plea of habit and repute qualified. The “ Regulations for Messengers-at-Arms,” which were approved of, and confirmed by the Court of Session, by A. S., 10th March 1772, prescribe ($ 10) the mode of publishing deprivation and suspension of these officers at the marketcross and church doors, and by advertisement in the newspapers ; but they do not declare that all executions under the hand of persons so published shall be null. (i) 2 Hume, 242.

(k) Dalgliesh v. Scott, 1822, 1 S., 506—Supra, % 1191. (1) Supra, & ib.

(m) 9 Geo. IV, c. 29, $ 6—7 Will. IV, and 1 Vict., c. 41, $ 21–1 and 2 Vict., c. 114, X 32 (explained and re-enacted on this point by 9 and 10 Viet., c. 67)—13 and 14 Vict., c. 36, sch. B-16 and 17 Vict., c. 80, sch. F, J.

(n) 1 and 2 Vict., c. 114, 232–9 and 10 Vict., c. 67—7 Will. IV, and 1 Vict., c. 41, 20.

(0) 6 Geo. IV, c. 48, sch.—7 Will. IV, and 1 Vict., c. 41, $ 3. (p) 2 and 3 Vict., c. 41, 2 138. (r) 11 Geo. IV, c. 37, 7—16 and 17 Vict., C. 80, sch. G.

(8) 9 Geo. IV, c. 29, 8—1 and 2 Vict., c. 114, 2 32; explained by 9 and 10 Vict, c. 67—2 and 3 Vict., c. 41, 8 138.

was present (w), and that he saw, knew, and heard (or words to that effect) the procedure which he records (6). The docquet to an instrument of sasine in the old form must mention the number of pages of which the instrument consists, if it is written bookwise on more than one sheet (c). The notary's name ought to be both stated at length in the beginning of the docquet (d), and subscribed to it. But the subscription has been dispensed with, where the name was set out in the notary's handwriting in the body of the docquet (e). Any alterations by way of deletion, superinduction, or the like, in the instrument should be mentioned in the docquet (f).

A shorter docquet is used in less important instrunents, and was once sustained in the case of a sasine (9).

$ 1200. The docquet is no longer necessary to instruments of resignation ad remanentiam (h); and an ordinary testing clause has come in its place in instruments of sasine in the new form (1). Instruments of disentail (k), and instruments in favour of the creditor's heir under the Heritable Securities Act of 1815 (1), also, coliclude by a testing clause.

a

$ 1201.

As to the contents of notarial instruments, reference

(C) 1686, c. 17

(f) 2 Ross,

4 S., 190 ; and a docquet has been sustained in which there were three omissions and three other clerical errors, none of them being in substantialibus; M'Ghie v. Leishman, 1827, 5 S., 758.

(a) M·Intosh v. Inglis, supra. It is usual, but not necessary, to state that the notary was asked and required to officiate; Duff Feud., 118. See Craig, 2, 7, 8.

(6) Primrose v. Dury, 1612, M., 14,326. -A. S., 17th January 1756- Kirkham v. Campbell, 1822, 1 S., 423. Immaterial errors on this point have been overlooked; as in Morrison v. Ramsay, 1826, 5 S., 150—M'Ghie v. Leishman, supra-Dickson v. Cunningham, 1829, 7 S., 503; affd., 5 W. S., 657.

(d) As to whether this is requisite see Maxwell v. E. Nithsdale's Tenants, 1680, M., 16,837; questioned in MIntosh v. Inglis, supra.

(e) Gordon v. Murray, 1765, M., 16,818—Cullen v. Thomsons, 1731, M., 16,842, supra, 2 758. 189—Anderson v. Thomson, 1828, 6 S., 463–Howden v. Ferrier, 13 S., 1097. As to erasures in instruments of sasine and resignation, see 6 and 7 Will. IV, c. 33, infra, 2 1208.

(9) Maxwell v. E. Nithsdale's Tenants, supra. Vict., c. 35, 28. Instruments of resignation in favorem are abolished; same act, 2 9.

(i) 8 and 9 Vict., c. 35, sch. B-10 and 11 Vict., c. 47, sch. C—10 and 11 Vict., c. 48, sch. L-10 and 11 Vict., c. 49, sch. D. The statutory form in the first noted act (for sasine in lands not burgage) contains no blank for the number of pages, but bears merely that the instrument is on “ this and the preceding pages.” It is thought that this, although evidently an omission, will protect sasines under the act in which the number of pages is not mentioned. Mr Duff (on Recent Stat., p. 7) entertains a different opinion. (k) 11 and 12 l'ict., c. 36, sch.

(1) 8 and 9 Viet., c. 31, sch. 3.

(h) 8 and 9 It com

must be made to books of forms; a summary of the general rules on the subject being sufficient for the purpose of this treatise.

The only safe rule to observe in practice regarding all instruments is, that they ought to narrate fully and accurately the procedure which they are designed to record.

$ 1202. An instrument of sasine in the old form is the narrative of an act of infeftment in land and its accessories, by delivery of appropriate symbols of possession in presence of a notary. mences with an invocation of the Deity (“In the name of God, Amen"), as a solemn adjuration to the truth of the narrative (m). It then sets forth the date of the formal act, by the day of the month and the year, both of the Christian era and of the Sovereign's reign (n). It requires to coincide with the precept or warrant to infeft (), as well as to narrate the formal act by the appropriate symbol (p); although slight inaccuracies on these points have been overlooked, especially where the sasine had been followed by possession (r). If the sasine is in favour of the heir or singular successor of the party whose name appears in the precept, the con

(2) This is necessary; Office of a Notary, 49.

(*) Office of a Notary, 49—Duff Feud., 104. An instrument is null if its date is not mentioned in one or other of these modes; but it is an open question whether it must bear both the year of the Sovereign's reign and of the Christian era ; Macfarlan, 1853, 15 D., 708. It seems that omitting the day of the month is not fatal, if there is no doubt, from the date given, that the recording took place within sixty days from the sine; Dickson v. Goodall, 1820, Hume D., 925, note. A discrepancy between the years of the era and the reign has been held fatal; Mag. of Brechin v. Arbuthnot, 1840, 3 D., 216. An instrument of sasine fell (before the act 6 and 7 Will. IV, c. 33) in consequence of the year of the Christian era being written on erasure; Hoggan v. Rankin, 1835, 13 S., 461; affd., 1 Rob., 173; as did also an instrument of sasine bearing date 4th October 1820, in the 58th year of the reign of Geo. IV; Lindsay v. Giles, 1844, 6 D., 771.

(6) Hogyan v. Ranken, 1 Rob. Ap., 173, per L. Brougham (questioning Gordon v. E. Fife, 1827, 5 S., 550)— Guthries v. L. Guthrie, 1667, 3 B. Sup., 140— Murray v. Murray, 1708, 4 B. Sup., 701—Wallace v. Dalrymple, 1742, M., 6919. A precept to inleft in the granter's lands, described by a general name, covers sasine in every particular part of them; Graham's Tr. v. Hislop, 1753, M., 6921 – Mackenzie v. Buchanan, 1743, M., 14,323—Hill v. D. Montrose, 1833, 11 S., 958. See Belshes v. Stewart, 21st January 1815, F.C.

And an infeftment in an annuity, proceeding on an assignation to that effect of a warrant to infeft in the full fee, has been sustained; Bonthrone v. Benthrone's Tr., 1805, Hume D., 238.

(p) Davidson v. M‘Leod, 1827, 6 S., 8– Ker v. Scot's Crs., 1702, M., 14,310—Stirling, 1724, M., ib.-Mag. of Brechin v. Arbuthnot, 1840, 3 D., 216.

(1) Inaccuracies in mentioning sasine by delivering the appropriate symbol were "verlooked in E. Wigton v. E. Cassilis

, 1630, M., 14,320–L. Lamerton v. Home, 1682, V., 14,309 ; 14,321—Gordon v. Brodie, 5 B. Sup., 587–Pringle v. Murray, 1725, M.,