NEGOTIORUM gestio may be proved by

parole, 576. NON-AGE. See Minor, Pupil. NON MEMINI, Party swearing, in oath

on reference, 1624. Cross-Examination of witness who depones non memini,

20:25. NOTARIAL INSTRUMENT. See In

strument. NOTARY – Formerly churchmen were

notaries, 675; their powers to act as such are now limited to signing wills for persons who cannot write, ib., 768. Powers of, extend over all Scotland, 1192; exceptions in regard to property in burghs, and formerly as to crownlands, ib. British Consul can act as notary abroad, 1193. Acts of foreign notary are effectual in Scotland, 1194. The acts of one who is habit and repute a notary are valid, although he is not properly qualified, 674, 1191. How fur notary may act where he is personally interested, 676, 1191; where his relatives are interested, ib. Regulation as to stamped certificates, ib. Rules as to notarial subscription of deeds by persons who cannot write, 673, see Writing. Notarial subscription of wills, 767; of bills, 794. Rules as to notarial instruments, 1186, see Instruments. Docquet by notary, 1199, see Docquet. Notary's protocol-book, 1210, see Protocol. Questions of international law as to acts of

notaries, see Foreign. NOTES, Witness referring to, 2005, see

Memoranda. Judge is required by statute to make notes of evidence in trials by jury, 2033; when the notes, or copies of them, may be called for, ib.; supplying evidence of deceased itness from

them, 117, 1933, 1961. NUMBER of witnesses required, 2038;

two socii criminis are full proof, 1697 ; one witness is not, ib., 2038; but one witness corroborated is sufficient, 2039; in actions laid on several acts of the same slander, one witness to each act enough, ib.; same rule as to several acts of adultery, ib.; and in repeated acts of the same crime, 2040. In cases of circumstantial evidence, only one witness necessary to each circumstance, 2042; difference between law of England and Scotland on this point, 1696, 2043. How far witnesses must corroborate each other, 2044, 2024.

sions, 1969 : by Separatists, ib.; by any person who has religious scruples against making oath, see Affirmation ; how far peers are privileged from making oath, 1353, 1504, 1968, see Peer ; witnesses under twelve years old are examined on affirmation, not on oath, 1677; minor may emit oath as a party, 1502; but pupil may not, ib.; when may witnesses be precognosced on oath? 1749; prisoner's declarations may not be taken on oath, 1412 ; how oath is administered in general, 1505, 1970; Jew, Mahommedan, &c., is sworn in the way he considers binding, 1970 ; swearing deaf and dumb persons, 1501 ; prohibition against administering oaths where not required or recognised by law, 1064; this does not apply to ratifi. cation of deeds by married women, ib.,

737, note. OATH LV LITEM is derived from the

Roman law, 1506 ; is competent in cases of spuilzie, 1507; and cases laid on wrongful acts of defender, ib.; or of one for whom he is responsible, 1508; competent in cases laid on the edict nauta caupones, &c., 1509; it is incompetent where there is proof from ordinary sources, 1510; but is not excluded by the party against whom it is tendered having taken evidence ex parte, ib. ; a foundation must be laid for it by proving the spuilzie or wrongful act, 1511; it is admitted to prove the quantities and values of the articles, 1512 : how far it is conclusive, ib.; differences in effect between oaths in litem and in supplement, 1525 ; it may be taken before a jury, 1513; it is of little use since the admission of party witnesses,

OATH_Its nature as a means of securing

EXECUTIONS by messengers and other

officers, of legal warrants and diligence,
1213 ; when necessary, ib., 12:26 ; com-
petency of officer, 1214 ; notarial instru-
ment cannot be used in place of, 12:26 ;
form and requisites of, 1218, 1226-43 ;
they may be partly printed, 1217; how
far probative', 12:26; admissible only
on matters intrinsic to their purpose,
1227.

Authentication of, 1228; what the
witnesses attest, 1229; blank executions,
1230; executions of summonses and
petitions, 1281 ; of diligences, 1233; of
criminal libels, 1234; executions must
be conform to their warrants, 1235; how
they must narrate citation or service,
1236. When officer unable to execute
his warrant, 1237. Irregularities in
executions sometimes overlooked, 1238.
Executions may be written out ex inter-
vallo, 1239; may be amended, ib. When
objections to executions must be stated,
1240. Execution lost or amissing, when
presumed regular, 1241. When execu-
tion can be challenged by exception,
1242, et seq.; challenge by reduction and
by improbation, 1244, et seq.; admissi-
bility of messenger and witnesses to

prove falsity in execution, 1248,
EXECUTOR-Reference to oath of an

executor, 1587; admission of, 1466 ;
how far admissions of the deceased are
evidence against an executor-creditor,

1468.
EXEMPLIFICATION of decrees in fo-

reign courts, 1283. See Foreign.
EXHIBITING person to jury who is in-

admissible as witness, 1727; exhibiting
forged writings, 923; exhibiting other

articles, 2047. See Production.
EXHIBITION of writings in possession

of party, 1328; in possession of opposite
party, 1335 ; of a third party, 1344 ;
means of compelling production and ex-
hibition of writings, 1316; actions of
exhibition, and exhibition and delivery,
ib. See Production, Havers.
EXPERT, 1995. See Ilandwriting,

Science, Witness.
EXPLAINING documents by extrinsic

evidence. See l’arole, Record, Issue,

Verdict.
EXTENT_Old extent, proof of, 1268.
EXTINCTION—Mode of proving extinc-

EXTRACTS Continued

specifying number of pages, 1254; sign.
ing each page, ib.; extract is appropriate
to decree, 1250; excerpts of parts of pro-
cess, ib.; extract not now required for
citing witnesses and havers, ib., 1351,
1887; extract of act and warrant in se-
questrations is probative in all her Ma-
jesty's dominions, 125,5 ; extracts of pro-
ceedings in Sheriff-courts, ib.; of letters
of tutory, ib.; of decree of proving the
tenor, 664. See Tenor.

must be authenticated by proper
officer. 1256; if ex fucie regular, are al-
missible without proof of authenticity,
1257, 1363; or of accuracy, ib.; are pre-
sumed to be regular, 7; but may be
challenged as irregular or inaccurate,
1258. Competency of inquiring whe-
ther extract has been issued prema-
turely, 1259, 7; correction of extracts
disconform to their warrants, 1200; in-
formal extract conviction received to
disprove allegation of malice in police
apprehending a party, 1261; when ex.
tract is sufficient on case being taken to
higher court for review, 1262.

from registers of private writings
1263; where original deed retained in
record, 1264; from register of probative
writs, ib.; of inhibitions and interdic-
tions, ib.; of instruments of sasine, re-
version, &c., ib.; of summonses of inter:
ruption of prescription, 1264 ; from sro
gister of hornings, 1265.

from records of Chancery, 1260) :
how far probative, ib.; effect in proving
the old extent, 1268. Extract from re.
gister of patents in Chancery, 1270.

From the register of births, deaths,
and marriages under old law, 1271 ;
under Registration Act of 1854, 1272.

of registry of ships, 1273, Ser
Registry.

when will extract satisfy produe-
tion in improbations, 1274. See Impro-
bation,

questions of international law re-
garding extracts, 1283, et seq. See

Foreign.
EXTRINSIC Evidence, when admissible

to contradict and modify or explain pri-
vate writings, 153, 178, 186; issue, 45;
verdict, 47, 1072 ; judicial record, 1064.
See Parole, Issue, Verdict, Record, Extraci.

qualities in admissions, 1487, ste
Admissions; in oaths on reference, 1640,
see Oaths.

FAC-SIMILE inadmissible in questions

of handwriting, 138, 927.
FACTOR, How far statements by, are evi-

dence against principal, 1471; compe.
tency of reference to oath of, 1589; com.

munications with factor are not privi-
leged as confidential, 1863. Are entries
in factor's books evidence in questions
between him and principal ? 1180. Is
his oath in supplement admissible to
prove payments by him ? ib., note. See
Confidentiality.
FEAR-Its effect as an item of circum-

stantial evidence, 274 ; admissions
emitted under influence of fear, 1452;
prisoners' declarations emitted under

fear, 1408.
FILIATION, semiplena proof in actions of,

1519; pursuer's oath in supplement, ib.;
see Oalh. Rules as to proof in cases of
legitimacy and bastardy; see Consisto-
rial. Of the presumption pater est, &c.,

313; see Presumption.
FISHING diligence incompetent, 1339.

See Production.
FOREIGN Law must be proved as fact,

1988; what comes under term foreign
law, 1987, 1989, note; proof by foreign
lawyers examined as witnesses, 1987;
mere residenters in foreign country in-
competent, ib.; application to examine
English lawyers on commission refused,
as they could attend trial, 1956. Re-
mitting case for opinion of foreign law-
yers, 1988; how far opinion is conclu-
sive, ib., 1989; suggestions for improv-
ing mode of investigating foreign law,
1990, and note. 22 and 23 Vict., c. 63.
24 and 25 Vict., c. 11, 1987, note 5, and
pages

1215-16.
Statutes, how proved, 1056.

Witnesses examined on commis-
sion, 1940-43; in jury cases, 1954; on
adjusted interrogatories, 1958–60; dur-
ing vacation commission granted by
Lord Ordinary on the Bills, 1947–1955 ;
when is proof that witness is still abroad
required ? 1962 ; who may be commis-
sioners to examine foreign witnesses in
consistorial causes, 1916, see Commis-
sions, Depositions. It is not an objection
to foreign witness that he received a
liberal allowance for coming to trial,
1737, and note. Compelling witnesses
in England or Ireland to attend trial in
Scotland (and vice versa) in criminal
cases, 1894 ; in civil cases, 1897, page
1208; to attend before commissioner ap-
pointed by Scotch Court to examine wit-
nesses and havers in England or Ireland,
1895, page 1213; reciprocal provisions,
1896, page 1213; when commission is
for taking proof in a submission, 1898;
when must witness' expenses be ten-
dered ? 1894, 95, 96, 97.

Examining foreign witnesses by
interpreter, 2021 ; taking declarations
from foreign prisoners, 1419, 1422.

International law as to prescription,
523; as to prescriptions relating to heri.

FOREIGN Contimied-

tage, 524 ; as to those which merely
limit the right of action or proof, 525;
those which extinguish the debt, 532;
those which limit it as by implied con-
dition in the contract, 635.

International law as to deeds,
1024; those relating to heritage, 1025,
1030; obligation to convey heritage,
1030; direction by foreign will to trus-
tees under Scotch trust-deed, 1033; heir-
at-law cannot approbate and reprobate
under foreign will bequeathing heritage,
10:2; foreign will may revoke formal
bequest of heritage, 1034 ; foreign deed
as to moveables valid if formal by lex
loci contractus, 1026; so as to foreiyn
will, ib.; but contract as to movables is
null if informal by that law, ib.; in the
Scotch courts a will will be held well
made if executed either according to the
lex loci executionis or the lex domicilii,
1042, note 10; will by British subject is
well made if made according to the law
of the place of execution, or of the tes.
tator's domicile there, or of that part of
her Majesty's dominions where he had
bis domicile of or ib.; deed executed
abroad but intended to take effect in
Scotland, 1028 ; what if lex rei sitæ pre-
scribes a form for making real right ef-
fectual ? 1029; probate or confirmation
under foreign will, 633, 1029; is a for-
mal Scotch deed probative in a foreign
court ? 1036; is a regular foreign deed
probative in Scotland ? 1038; what if
instrumentary witnesses to foreign deed
are inadmissible here? 1041.

Where lex loci contractus requires
writing to a contract provable by parole
in court where action arises, 1043; and
vice versa, 1045; is a foreign nuncupative
will valid in Scotland ? 033.

What country forms the locus con-
tractus in agreements ? 1049; in bills,
ib., 365.

Contract valid or invalid according
to lex loci solutionis, 1050.

Bills and indorsations which is
locus contractus in ? 365, 1049; questions
of onerosity are determined by Scotch
rules of evidence, 364 ; foreign vill
warrants summary diligence here, 1194,
note 1.

Notaries, their instruments are
valid in this country, 1194; foreign pro-
test on bill warrants summary diligence,
1194, note 1; British consuls may act
as notaries abroad, 1193; admissibility
of attested copy by foreign notary of
deed retained by him according to the
lex loci contractus, 1286.

Courts. Exemplifications of de-
crees of foreign courts, how far admis.
sible, and what they prove, 1081, 1283,
of merchant's books in proving, 1179,
see Books ; Pursuer's oath in stipple-
ment to prove, 1515, see Oath ; trien-
nial prescription of, 476, see Prescrip-
tion.

GAZETTES—On what matters they are

evidence, 1058; when does notice in,

raise presumption of knowledge, 1059,
GRATUITOUS promises, how provable,

695.
GUARDIAN. See Tutor, Curator, Vinor.
GUARANTEE. See Cautinary Ooliga-

tion.

FOREIGN Continued

note 1+; certificate of probate of foreign
will, 1284; English and Irish probaten,
ib.; sealing extract-decree of Scotch
court for production abroad, ib.; extract
of deed recorded in foreign court-books,
1285; cases as to production of original
of deed recorded in Scotch register re-
quired in a foreign court, 1286; in se-
questrations extract act and warrant is
probative in all her Majesty's dominions,
1250 ; Seotch court will recommend
foreign court to allow access to its re-
cords when required in this country,
1355.

Stamps. Deed having stamps re-
quired by lex loci contractus is valid here,
1001; foreign bills negotiated in Britain
must be stamped, 989, 1002 ; will court
of this country hold deed null because
not bearing stamp required by lex loci
contractus ? 1003.
- Customs, questions as to proving
custom of foreign country to explain

deed, 237.
FORGERY, proof of, by instrumentary

witness, 908; one witness swearing
deed is forged is not full proof, 916 ;
dead witnesses are presumed to support
it, 915; proof of handwriting, 918, see
Handwriting; proof from stamp; paper
mark, anachronisms, and other circum-
stances, 255, 289, 929 ; must instrumen-
tary witnesses first be examined ? 931 ;
in question of forgery of one signature
is it relevant to prove forgery of an-
other? 18; and of other bills ? ib.; and
that holder is a notorious forger? ibi.;
or that he had other forged notes in his
possession, 36; proving that defender
was warned that other bills issued by
him were forged, 34 ; when must forged
document be produced, 2051; are jury
allowed to examine it? 923; how far
adoption of forged bill creates liability,

568.
FRAUD, Burden of proving, 7; is of the

substance of issue embracing it, 67-69 ;
may be proved by parole, 628 ; parole
admitted to prove averments of fraud in
obtaining bills and indorsations, 344,
359; in obtaining possession of deed,
953, 957; mandatory taking a right in
his own name in place of his principal's,
576; proof of fraud to contradict writ.
ings, 174 ; see Parole; to contradict
judicial record, 1065, see Record ; judi-
cial examination on averments of fraud,
1996 ; oath of reference on averments
of, 1548; privilege of witness to decline
answering questions inferring fraud,
2016; fraud in vitiating documents ;

See Vitiation.
FURNISHINGS, admissibility and effect

HANDWRITING, evidence of, in cases

of forgery and improbation, 754, 918;
evidence of those familiar with the
handwriting of the alleged writer, 756,
918; its value, 920; how far one bank
officer is admissible to prove handwrit.
ing of another, 80 ; comparatio literarum,
756, 922; by the court and jury, 756,
923; by writing-masters, engravers, &c.,
756, 925 ; value of their evidence, ib.;
admissibility of fac similes, 138, 927 : is
proof of handwriting admissible without
examining instrumentary witnesses?
931 ; may jury look at the documents ?

923 ; See Forgery, Improbation.
HAVERS are cited on certified copy in.

terlocutor, 1255, 1351, 1889; forcing
them to produce writings in civil courts,
1346, see Production; in arbitrations,
1356, 1899; in church courts, 1900;
in courts-martial, 1902 ; procedure
against havers residing in England or
Ireland, 1354, 1894, et seq., see Foreign ;
sheriff citing havers residing in Scotland
beyond his jurisdiction, 1892; examiu.
ing minors and pupils as havers, 1352;
mode of examining harers, 1357; what
questions he is bound to answer, 1358 ;
he may not refuse to produce on ground
that document is irrelevant, ib.; he way
be examined to prove existence of a
document at a certain date, ib.; Cress-
examination, ib.; examination on the
merits incompetent, 1359 ; mode of
authenticating documents produced,
1360.

- Messenger's citation against havers,
1225, see Cilation; messenger's execu-
tion, 1226, see Ereculion; person when
cited as haver may not be dealt with as
if cited on criminal libel, 1225.

How far statements made by harer
may be used against him as admissions,
1438; or in place of his deposition as a
witness, 1858, 1926; or as an oath on
reference, 1563.

What writings haver is bound to
produce, 1335, et seq., see Production:
how far production privileged on ground
of confidentiality, 1861, 1873; see Con-

fidentiality.
HEARSAY Evidence, 83; generally in-

admissible, 84; competent to prove that
a statement was made, if that is a fact
in the cause, 86, 1377 ; to prove notice,
ib.; general repute, 87; statements of
parties to show their dispositions or
feelings towards others, 88, 1377; state-
ment by patient to medical attendant,
90, 1383 ; statements made in presence
of opposite party, 91, 1380 ; those which
forined part of the res gestæ, 92, 1381;
or led to certain conduct, 94; statements
made de recenti of acts in question, 95 ;
these are liberally admitted in trials for
rape and similar cases, 98; are they ad-
missible in civil cases ? 99, see Party;
hearsay that witness identified prisoner
recently after the crime, 100, 2006 ;
proving that witness previously made
contradictory statements, 101, 1806; it
is not competent to contradict a witness
by proof of what he said in precognition,
101, note 8; hearsay of statements by
dead witness admissible, 102 ; but not
if witness inadmissible at the time, 103;
is it admissible if he has become in-
sane? 104; or gone abroad? ib.; how
hearsay of dead witness is proved, 106,
107, 1930–34, 1939–1953.

See Deposi-
tion, Witness.

Hearsay of hearsay, is it admis-
sible ? 109.

of contents of documents. See
Parole, Copy.
HEIRS, Burden of proof in services of, 3;

presumption against fairness of dealings
for sale, &c., of expectancies, 8; ques-
tions of prescription where claim is made
against heir of original debtor, 461, 520.

See Prescription.
HERITAGE, Proof of obligations regard-

HOLOGRAPH WRITINGS Contd.-

tions in holograph writings, 755; holo-
graph additions in deeds not holograph,
731-735 ; must holograph writings be
subscribed ? 757-758 ; they do not prove
their dates, 762 ; how far they are ef-
fectual when date is challenged. 764 ;
acknowledgments of intimation of as-
signation are probative of their dates,
766 ; documents referred to in holograph
writings, 753, 808, see Writings. Prov-
ing the tenor of holograph writings,
1291.

Vicennial prescription of, 412; see
Prescription.
HOMOLOGATION as obviating defects

in authentication of writings, 852; what
deeds admit of homologation, 854 ; do
deeds by pupils ? 856 ; or deeds obtained
by fraud ? 857; or vitiated in substantia.
libus ? 858 ; consent essential to hoinolo-
gation, 862; one incapable of consent
cannot homologate, ib.; nor can one who
does not know of existence of the deed,
863; effect of ignorantia juris, 864; can
a party plead both that the deed is for-
mal and that it has been homologated ?
865; homologation may be express or
implied, 866 ; circumstances which infer
it, 867.

Effect of, 868; does it set up the
deed as ab initio valid ? ib.; it does not

affect third parties, ib.
HONORARIES to advocates and physi-

cians presumed to have been paid, 392.
HUSBAND-In what cases admissible as

witness against wife, and vice versa,
1714-1722; may be used as production
in trial of wife, 1727; how far affected
by admissions by wife, 1468, see Admis-
sions; when reference to wife's oath ad-
missible against, 1576, see Oath.

- and wife, proof of marriage, 539,
see Marriage; proof in consistorial causes,
sce Consistorial, Adultery; admitting
communications between husband and
wife to prove the terms on which they
lived, 89, 1859; confidentiality of commu-
nications between, 1858, 1724, see Confi-
dentiality; deed by husband in favour
of wife effectual, although undelivered,
940; effect of deed by husband to wife
and children being placed in her hands,
962, see Delivery ; power of spouses
jointly to revoke provisions in marriage-
contract, 980 ; mutual will by husband
and wife holograph only of husband,
sustained on his death, 772, see Wife.

IDENTIFICATION of articles produced

in evidence, 2053; a person inadinis-
sible as witness may be produced to
jury for, 1727; competent to show that
witness identified the prisoner recently

2 R