$ 1214.

In competitions of creditors, objections which cannot usually be pleaded except by reduction may be pleadled by way of exception (6). 1245.

When the ground of challenge of an execution infers fraud or falsehood in the messenger or witnesses, reduction-improbation seems to be necessary (c); whereas such blunders or irregularities as do not infer falsehood may be pleaded by simple reduction ().

$ 1246. In inferior courts, where actions of reduction are incompetent, objections to executions of summonses or petitions may be pleaded by way of exception if they are of a patent character. If not, they may, in the Sheriff-court, be pleaded by articles improbatory and approbatory, on which a record is made up as in actions of reduction-improbation (e). It is a preliminary to this procedure that the party challenging the execution shall consign a sum not exceeding £5, or under 10s., to be forfeited to the other party in case of the objection being repelled (f).

§ 1247. Executions of criminal libels may be challenged by exception on any relevant ground, there being no procedure in any criminal court corresponding to actions of reduction, or articles improbatory and approbatory (9). If the prisoner is absent, the ob

(6) More's Notes, 378—Shand's Prac., 258; 597—Stewart v. Brown, 1824, 3 S., 56 - Holmes v. Reid, 1829, 7 S., 535, per L. Mackenzie. (c) M.Vittie ». Barbour, 1838, 16 S., 1184–Balfour v. Robertson, 1839, 1 D., 458—Shand's Prac., 258.

(d) M.Lellan v. Graham, 30th June 1841, F. C.-Shand, supra. (e) A. S., 10th July 1839, % 91. A recent writer on the practice of Sheriff-courts considers that this proceeding is only competent where the execution is fabricated, and that latent objections to genuine executions in the Sheriff-court cannot be pleaded except by reduction in the Court of Session ; M'Glashan (Barclay's ed.), 189. This view is supported by Macdonald v. Sinclair, 1843, 5 D., 1253, notes to Lord Ordinary's interlocutor. It is under. stood that the practice in Sheriff-courts upon the point is not uniform.

V) A. S., 10th July 1831, § 91. (9) 2 Hume, 247—2 Al., 341; and Proudfout, April 1823, there cited.

merly, if he had not actually done so." The opinion of the majority, however, appears to be consistent with sound principle ; for, were it true that the statute rendered specification unnecessary, one or other of two important alterations in practice would seem to follow-either (1) that the cases in which an execution could be challenged ope exceptionis on the plea that the solemnities had not, in point of fact, been observed (a plea which could not previously have been stated ope exceptionis in face of the statement in the execution), would be indefinitely increased; or (2) that challenge of an execution ope exceptionis would be altogether excluded, seeing that no patent objection could be stated to an execution which did not specify the formalities—thus leaving the defender in every such case only the cumbrous remedy of reduction.

VOL. II.

jection may be stated by his counsel, in order to prevent him from being fugitated (1). But the cautioner in his bail-bond may not plead the objection, unless the prosecutor moves for forfeiture of the bond (i).

§ 1218. The messenger and subscribing witnesses are admissible to prove that an execution under their hands is false ; but their evidence ought to be weighed scrupulously (k). It seems not to be indispensable for the party challenging to examine these per

Indeed, his case may be that they concocted a false return, and are in a conspiracy against him (1).10

sons.

(h) Grant, 1827, Syme, 245— Anderson, 1834, Bell's Notes, 229—Lacy, 1837, 1 Swin., 493—Ross, 1837, ib., note.

(1) Smith, 1836, 1 Swin., 301-Laird, 1838, 2 Swin., 178.

(k) Aitchison e. Patrick, 1836, 15 S., 360—Kay v. Rodger, 1832, 10 S., 831-See supra, 8 908, et seq. (1) Kay r. Rodger, ib.-Supra, 2931, et seq.

10 Several cases on the subjects treated of in this chapter have been lately decided. In service of note of suspension and interdict under 1 and 2 Vict., c. 86,2 6, a copy of the interlocutor ordering service must be served with note; Anderson v. Drysdale, 1862, 1 Macph., 46. The citation need not be written on service copy of summons. This was held in a case where the citation was attached to the summons by wafers, and the messenger's name was written across the junction between the two documents; Hamil. ton v. Monkland Iron and Steel Co., 1863, 1 Macph., 676. A sheriff-officer who falsely adhibits the name of another person as a witness to a citation commits forgery; but if he gets a person to sign as a witness a blank sheet of paper, and thereafter writes an execution of citation above the signature, he may be indicted for a crimen falsi, but not for forgery; H. M. Adv. r. Fraser, 3 Irv., 467.

TITLE III.

OF EXTRACTS FROM OFFICIAL RECORDS, AND OF

OFFICIAL COPIES OF DOCUMENTS.

§ 1249. In order to prevent the originals of public records from being lost or injured, as well to secure ready access to them by all the lieges, they usually remain in the custody of their respective keepers, and their terms may in most cases be proved by extracts or office copies. Authenticated copies of documents may also be obtained by judicial procedure in cases where one party is entitled to the custody of writings in which others are interested; and where an original document has been lost or destroyed, it may be supplied by means of a decree of proving the tenor, extracted in common form.

The admissibility of all these extracts and copies arises from their having the same characteristic-namely, being prepared under official care, and authenticated by the proper officer. Their admissibility is an exception, for obviously good reasons, from the rule which rejects copies and excerpts on the ground that they are secondary evidence.

CHAPTER 1.-EXTRACTS AND EXCERPTS FROM JUDICIAL

RECORDS.

1

$ 1250. The original processes, with the interlocutors and decrees in the courts in this country are preserved in the archives of the respective courts. Their terms may be proved by extracts or excerpts duly certified by the proper officer, which are admissible without their being proved to be correct, and without the signature of the officer authenticating them requiring to be proved (a). This rule is in daily observance in criminal courts, where extracts by the respective clerks of court are received as full proof of previous convictions, res judicata, and the like, without any evidence beyond what is required for identifying the prisoner as the person to whom they refer. In civil cases, also, the extract-decree is the warrant for diligence by which the judgment may be enforced; and in proceedings relating to heritable property, e.g., services, adjudications, and reductions and declarators regarding that kind of property, the extract-decree often forms an important link in a progress of titles.

§ 1251. In most of the civil courts in Scotland the extract-decrees used to set forth the whole proceedings in the cause; a practice which occasioned many technical objections, as well as much useless expense and delay (6). The evil, although pointed out by Lord Stair (c), continued till the act 50 Geo. III introduced the system of short extracts, which contain only the decerniture referring by date or description to the documents (if any) on which the action is laid (cl). Under the powers conferred by a subsequent statute, the Court of Session framed similar styles for extracts of decrees in Sheriff-courts (e). In criminal cases the extracts have been confined within proper limits. They set forth merely the prisoner's name and designation, the crime charged, the verdict (or if the case was not decided by jury, the finding of the magistrate or sheriff), and the sentence or absolvitor.

$ 1252. By an Act of Sederunt, passed in 1829, it was ordained that extracts of decrees in the Court of Session, and other civil courts in Scotland, should bear “a docquet in the handwriting of the officer by whom the extract is signed, stating by whom it is

(a) See infra, % 1257. (6) See L. Dirleton v. L. Eastnisbet, 1623, M., 12,180 - Pitcairn, 1671, M., 12,181–Lawrie v. Gibson, 1671, M., 12,532.

(c) Stair, 4, 46, 27.

(d) 50 Geo. III, c. 112, sch. A and B. The directions in this statute were not strictly observed until the office of extractor in the Court of Session was placed upon its present footing by 1 and 2 Vict., c. 118, % 18. The short forms introduced by 50 Geo. III, may be used for decrees obtained before the act; A. S., 26th Feb. 1831.

(e) 6 Geo. IV, c. 23, § 2—A. S., 27th Jan. 1830, sch. C. A similar power was conferred on the Judge-Admiral for abridging extracts in the Admiralty Court by 1 and 2 Geo. IV, c. 39, 27; and a committee of Sheriffs were empowered to prepare forms for abridging extracts in Commissary Courts by 4 Geo. IV, c. 97, 82 2, 17. These are no Inger separate courts; 11 Geo. IV, and 1 Will IV, c. 69, % 21, 29,

et

written, by whom it has been collated, and at what date it was completed by the signature of the extractor; and in all cases where such docquet has not been duly made, the extracts shall be held as improbative” (s). A subsequent act of Parliament provided, that in all extracts (including extracts of fictitious decrees on registered deeds and on instruments of protest on bills) there should be inserted a warrant for execution of the decree, in terms of the schedule appended to the act (9); which also provided that the extracts should be “subscribed and prepared in other respects, as extracts are at present subscribed and prepared” (1). Another statute (i), passed on the same day, conferred full powers on the Court of Session for regulating their own forms of procedure; and the extractor of decrees in that Court was placed under the superintendence and direction of the junior Principal Clerk of Session, acting under the directions of the Court (k). Their Lordships considered that the forms introduced by the first of these acts superseded the provisions of the Act of Sederunt of 1829 in regard to extracts of all their decrees, and not merely of such as could be followed by diligence; and accordingly, their Lordsbips enacted that, instead of affixing a docquet, the extractor should specify, in writing, on the last page of the extract the date on which the same was completed by his subscription (1). The Act of Sederunt of 1829, however, has not

1 been expressly repealed as to extracts of decrees in inferior courts, in which a warrant for execution is not inserted in terms of the Diligence Act (m). But in the forms for extracts in the Sheriffcourt prescribed by the Act of Sederunt of 27th January 1830, the docquet required by the Act of Sederunt of 1829 is omitted; and the extract concludes with a docquet in this form, “Extracted by me, sheriff-clerk (or sheriff-clerk depute) of the county of

$ 1253. Extract of decrees of the Court of Session must bear at the commencement the date of the decree (n), and at the termination the date on which the extract is signed (). They ought also

o) to specify the place where they are subscribed; but the want of this requisite was held not to vitiate an extract which commenced

(1) A. S., 6th March 1829. This act was held not to apply to decrees for expenses in the Bill-Chamber; Ross v. Webster, 1837, 15 S., 1238.

(9) 1 and 2 Vict., e. 114, 2% 1, 9; sch. 1, 6.

(h) Same act, % 1, 9.

(i) 1 and 2 Vict., c. 118, 22 18, 33. (k) 1 and 2 Vict., c. 118, 18.

(1) A. S., 24th Dec. 1838 (as to form of extracts), % 6. (m) See M‘Glashan (Barclay's ed.), 359, 360.

(n) Where a decree, dated 8th July, bore to be signed upon the 11th of that month, the Court held that the extract was correct in setting forth the latter as the date of the duiree; Cleland v. Clark, infra.

(0) 1 and 2 Vict., c. 114, sch. No. 1.