^■^imfimmsiimi 
 
 M$f 
 
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 M^MM:
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
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 '",illj i\i '^SuCj*'''* ^•'^* ,^om^ifimcnfs,
 
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 ^ 
 
 A TREATISE 
 
 ON 
 
 THE LAW OF EVIDENCE 
 
 IN SCOTLAND 
 
 BY 
 
 WILLIAM GILLESPIP: DICKSON 
 
 ADVOCATK 
 PROCUREUR AND ADVOCATE-GENERAL OF TllH MAIRITIUS. 
 
 SECOND EDITION 
 
 EDITED BY 
 
 JOHN SKELTON, ADVOCATE. 
 
 IN TWO VOLUMES. 
 VOL. 1. 
 
 7) 
 
 EDINBUEGH: 
 
 BELL & BRADFUTE. 12 BANK STREET. 
 
 WILLIAM MAXWELL, LONDON. 
 
 MDCCCLXn'.
 
 jniiN BAXTKi;, ri;ixTE]i. j.\Jii;s coui;t, head ov jioukd, EiUNBUncn. 
 
 ■xV,
 
 
 TO 
 
 THE DEAN AND FACULTY OF ADVOCATES 
 
 THIS TREATISE IS INSCRIBED 
 
 AS 
 
 A TRIBUTE OF SINCERE ESTEEM, 
 
 AND 
 
 IN ACKNOWLEDGMENT OF 
 
 MUCH KIND AND VALUABLE ASSISTANCE 
 
 RECEIVED BY THE AUTHOR 
 
 FROM 
 
 MANY OF HIS BRETHREN OF THE BAR 
 DURING ITS PREPARATION.
 
 PREFACE TO SECOND EDITION. 
 
 The First Edition of this work has been out of print for several years. Mr 
 Dickson's absence from this country, and the pressure of oflScial engage- 
 ments, prevented him from superintending the issue of a new edition. At 
 his request I undertook the duty of seeing the present edition through the 
 press, and of bringing it into conformity with the existing state of the law. 
 
 The alterations on the text are unimportant, and chiefly verbal. The op- 
 portunity which I have had of comparing the text wdth the decisions and the 
 Institutional writers has confirmed my previous impression — an impression 
 whicli, I believe, is generally entertained by the Profession — that the work 
 is not only substantially, but minutely, accurate. Several important statutes 
 have been passed, and many decisions of great value have been pronounced, 
 since the First Edition appeared. These are mentioned in the Additional 
 Notes, — the Additional Notes being referred to by numerals, the Notes to 
 tiie First Edition by letters. The leading decisions, more particularly those 
 on points of practice, are fully analysed ; and, wherever practicable, the 
 opinions of the Judges are given in their own words. 
 
 I have to acknowledge, in a special manner, my obligations to Mr W. E. 
 Gloag, Advocate, from whom I have received most material aid and advice ; 
 and without the assurance of whose co-operation I should not have ventured 
 to undertake the revision of a w'ork which embraces so wide a field, and 
 touches on so many depjxrtments of our law. 
 
 J. S. 
 
 EuixBuuGH, 20 Alva Stuekt, 
 January lb(>4.
 
 PREFACE TO FIRST EDITION. 
 
 For several years the want oi" a Treatise on the ^loderii 
 Rules of Evidence in Scothmd has occasioned much incon- 
 venience and difficulty both in the study and the practice of 
 this branch of law. The object of the following pages is to 
 supply the desideratum. With this view the author has 
 endeavoured to collect and analyse all the Scotch authorities 
 upon the subject. He has also borrowed whatever light could 
 be thrown upon it from other systems of jurisprudence, espe- 
 cially those of England and America ; and that nut merely 
 by examination of the corresponding chapters in the best 
 English treatises, and in the comprehensive and philosophical 
 work of Professor Greenlcaf, but also by constant reference 
 to the decisions and other original authorities in English and 
 American law. Care has at the same time been taken to 
 point out any peculiarities in the law of Scotland, which de- 
 stroy or im])air the applicability of illustrations from the sys- 
 tems of other countries.
 
 Vlll PKEFACE. 
 
 On points of practice the author has seldom trusted merely 
 to works upon forms and to his own observation, but has 
 consulted gentlemen engaged in both branches of the profes- 
 sion : and he has availed himself of information kindly fur- 
 nished by ^Ir Lothian, Procurator-tiscal of Edinburgh, and 
 by several of the Clerks of Court on matters within their 
 departments. 
 
 Throughout his labours he has derived much assistance 
 from Mr Tait's work, in which nearly all the authorities on 
 the law of evidence prior to the year 1834 are ably digested. 
 ISir Archibald Alison's volumes on the Criminal Law have 
 also been referred to on all questions relating to that dej)art- 
 ment of the subject. From these sources information lias 
 been derived on several matters which have not Ijcen treated 
 by any of the institutional writers, or brought before the 
 Supreme Courts for decision. 
 
 The author has great pleasure in expressing his hearty 
 thanks to those gentlemen who have favoured him with in- 
 formation and suggestions duiing his labours. The kind- 
 ness of many of his brethren of the J^ar he has endeavoured 
 to acknoAvledge in the dedication. But he cannot deny him- 
 self the gratihcation of tlianking, in an especial manner, Mr 
 Sheriff Logan for a perusal of a considerable portion of his 
 manuscript w^ork on Cautionary Obligations, Avhich contains 
 a lucid commentary up(m the law of evidence a[)plical)le to 
 that subject, and upon the doctrine of reimterventus. To 
 the miwearit'd kindness of Mr Patrick Fraser, Advocate, the 
 author is indebted lor many valuable suggestions, offered 
 during a rcvisal (tf the greater part of the work as it passed 
 tliroiigh tlir press. Another of his bn'thren of the \\m\ by
 
 FRKKACE. IX 
 
 collating nearly the whole references to autlioritics, lias iiiiu Ii 
 increased the value ol' the work, and laid the author under 
 very great obligations. 
 
 Notwithstanding the means which have been used for se- 
 curing copiousness and accuracy, the author is aware that 
 errors must have escaped detection, lie would fain hope 
 that they are few, and that they will not prevent the work 
 from being a useful aid in the study and practice of the Law 
 
 of Evidence. 
 
 W.G. \). 
 
 Em.Ni!Uia.u, 7 Fettes How, 
 lOth July 1855.
 
 CONTENTS. 
 
 Pago 
 
 List of Abbreviations, . , . xvii 
 
 Index of Cases, .... xxiii 
 
 Introductory Chapteij, . . . Ixxi 
 
 PART FIRST. 
 
 GENERAL RULES APPLICABLE TO ALL KINDS OF EVIDENCE. 
 
 Title I. — Of the burden of proof, . . .1 
 
 Title II. — Of the rule that the evidence must be rele- 
 vant, . . . .18 
 Chapter I. Of the rule generally, . . .18 
 II. Relevancy of evidence of character, . . 25 
 
 III. Relevancy of evidence in questions of knowledge, in- 
 
 tention, and malice, . . .33 
 
 IV. Of admitting collateral facts to discredit an opponent's 
 
 witnesses, . . . .38 
 
 Title III. — Of proving the issue and libel, . 39 
 
 Chapter I. Of the libel and issue, . . . 31> 
 
 II. Of the verdict, . . . .43 
 
 III. Variance between the allegation and the proof, . 49 
 
 IV. Of the rule that the substance of the issue or libel 
 
 must be proved, . . . . (51 
 
 Title IV. — Of the rule which requires the best evi- 
 dence, . . . .70 
 Chapter I. Of the rule generally, . . .70 
 tl. Of hearsay evidence, . . .7.") 
 III. Of the admissibility of parole proof of the contents of 
 
 \\ritiug8, .... 112
 
 Xll 
 
 CON'TKX'l'S. 
 
 Chapter IV. Of the julniissibility of copies and excerpts, 
 
 V. Secondary evidence of dncunients lost or withheld, 
 
 Title V. — Of the admissibility of tarole and other ex- 
 trinsic EVIDENCE TO AFFECT WRITINGS, 
 Chapter I. Of its admissibility to contradict or modify writings, 
 II. Of its admissibility to explain writings, 
 
 III. Of the admissibility ofcnstom and nsage of trade to 
 
 modify or explain writings, 
 
 IV. Of contradicting and modifying deeds by writ or oath 
 
 of party, .... 
 
 Title VI. — Of evidence as divided into direct and in- 
 direct ; AND OF THE DIFFERENCE BETWEEN CIR- 
 CUMSTANTIAL AND PRESUMPTIVE EVIDENCE, 
 
 Title VII. — Of circumstantial evidence, 
 
 Title VIII — Of presumptions, 
 Chapter I. Of the general nature of presumptive evidence, 
 11. Of the presumption in favour of life, 
 
 III. Of the presumption jjo/f?- est quern nuptice demo7istrant, 
 
 IV. Of presumptions from possession, 
 V. Of the presumption of onerosity of bills of exchange 
 
 and promissory-notes, 
 VI. Of tlie presumptitin against donations, 
 XU. Chirograplmm apud dchitoran rcpertum presumitur so 
 lidum^ 
 VIII. Chirographmi non cxta7is p>resumHiir solutiim, 
 IX. Of the presmnption aribing from the apoclia trhwi an 
 noriirn, 
 X. Of the presumption that lionoraries have been paid, 
 XI. Of the presumption tliat payment has been made by 
 
 the proper debtor, 
 XII. Tutor presuin/'tur intus habere, 
 
 Title IX. — Of prescriptions. 
 Chapter I. Of the general nature of ju'escriplions, 
 
 II. Of the vicennial prescription of holograph writs, 
 III. Of the sexennial prescription of bills and notes, 
 rV. Of the quinquennial prescription of ministers' stipends, 
 
 verbal bargains, &c., 
 V. Of the triennial prescription of merchants' accounts 
 &c., . . . 
 
 VI. International questions of prescription. 
 
 111 
 
 118 
 119 
 140 
 
 171 
 
 178 
 
 181 
 
 184 
 
 218 
 218 
 225 
 233 
 242 
 
 249 
 269 
 
 278 
 
 280 
 
 281 
 283 
 
 285 
 287 
 
 290 
 290 
 297 
 301 
 
 322 
 
 327 
 350
 
 378 
 374 
 377 
 383 
 
 3S-, 
 386 
 387 
 
 CONTENTS. XIII 
 
 Vame 
 
 PPfP^ X. — Of restrictions of the mode of i'roving certain 
 
 FACTS, . . . oG(J 
 
 Chapter I. Proof of marriage, .... 360 
 
 11. Proof of obligations regar(lin<j: lieritaj^e. . . 364 
 
 III. Proofs of rights and obligations regarding moveables, 3G8 
 
 IV. Proof of contracts of partnership, and joint adventure, 373 
 V. Proof of contracts of service, 
 
 VI. Proof of contracts of mandate, 
 VII. Proof of trust, 
 YIII. Proof of intromissions u'ith moveablr's and money, 
 IX. Proof of loan of money, 
 X. Proof of promise to pay money, 
 XI. Proof of gratuitous i)romises, 
 XII. Proof of cautionary obligations and obligations of relief, 387 
 
 XIII. Proof of obligations which the parties have agreed to 
 
 commit to writing, . . . 392 
 
 XIV. Proof of payment and performance of obligations con- 
 
 stituted by writing, . . . 393 
 XV. Proof of payment and performance of obligations not 
 
 constituted by writing, . . .395 
 XVI. Of inferring payment from circumstances, . 397 
 XVII. Proof of renvmciation of rights and obligations con- 
 stituted by writing, . . . 404 
 XVIII. Proof of renunciation of rights and obligations not con- 
 stituted by writing, , . . 4U5 
 XIX. Proof of fraud and wrong, . , . 406 
 XX. Proof of wills and legacies, . . . 407 
 XXI. Proof of judicial acts and decrees, . . 409 
 
 PART SECOND. 
 
 RULES APPLICABLE TO THE DIFFERENT INSTRUMENTS OF 
 EVIDENCE. 
 
 BOOK FIEST. 
 
 OF WRITTEN EVIDENCE. 
 
 Title I. — Of private writings, . . . 413 
 
 Chapter I. Of their authentication, . . .414 
 
 II. Of writings which do not require the statutory solem- 
 nities, .... 4G7
 
 XIV 
 
 CONTENTS. 
 
 Chapter III. Can defects in tbe solemnities of deeds be supplied by 
 proof of their authenticity ? . 
 IV. Of rei interventus, 
 V. Of homologation, 
 
 VI. Of deeds objected to on the groimd of vitiation, 
 VII. Of deeds mutilated for the purpose of cancellation, 
 VIII. Of the improbation of deeds which are probative ex 
 facie, .... 
 IX. Of the delivery of deeds, 
 X. Of the acceptance of deeds, 
 XL Of stamps to private writings, 
 XII. Kules of international law regarding deeds. 
 
 Title II. — Of writings of a public and official character, 
 4:n^d of analogous writings. 
 Chapter I. Of acts of Parliament, 
 
 II. Of the journals of Parliament, 
 
 III. Of the Rotuli Scotice, . 
 
 IV. Of gazettes, 
 V. Of records of courts of law, 
 
 VI. Of registers of deeds and other private writings, 
 
 VII. Of the registry of ships, 
 
 VIII. Of the registers of births, deaths, and marriages, 
 
 IX. Of other official registers, 
 
 X. Of histories, tombstones, &c., 
 
 XL Of mercantile and other account books, 
 
 XII. Of notarial instruments, 
 
 XIII. Of citations and executions by messengers-at-arms and 
 
 other officers, .... 
 
 Page 
 
 496 
 497 
 518 
 529 
 545 
 
 550 
 566 
 593 
 595 
 613 
 
 633 
 633 
 636 
 637 
 637 
 638 
 658 
 664 
 672 
 686 
 692 
 695 
 699 
 
 713 
 
 Title III. — Of extracts from official records, and of 
 
 official copies of documents, . . 731 
 
 Chapter I. Of extracts and excerpts from judicial records, . 731 
 
 II. Of extracts from registers of private writings, . 738 
 
 III. Of certified and examined copies of writings in official 
 
 records or custody, . . . 747 
 
 IV. International law regarding extracts and examined 
 
 copies, . . . • .750 
 
 V. Of proving the tenor of writings which have been lost 
 
 or destroyed, .... 756 
 
 VI. Of actions of transumpt, . . • 781 
 
 Title IV. — Of the rules as to producing writings and re- 
 covering THEM BY diligence, . . 793
 
 CONTENTS. 
 
 XV 
 
 BOOK SECOND. 
 
 OF STATEMENTS AND OATHS BY THE PAllTIES TO THE CAUSE, 
 AND BY PERSONS REPRESENTING THEM, 
 
 'i'lTLE 1. Of STATEMENTS MADE (nOT ON OATH) BY A PARTY 
 
 IN FAVOUR OF HIMSELF, 
 
 Title II. — Of statements made (not on oath) by a party 
 
 AGAINST HIS INTEREST, 
 
 Chapter I. Of admissions and confessions on record, 
 
 II. Of judicial examinations, 
 
 III. Of prisoners' declarations, 
 
 IV. Of using in one cause judicial declarations, admissions 
 
 &c., made in another cause, . 
 V. Of extrajudicial admissions, 
 VI. Of extrajudicial confessions, 
 VII. How far admissions or confessions made by one person 
 
 are evidence against another, 
 VIII. Of implied admissions and confessions, 
 IX. Of qualified admissions, 
 X. Of the probative value of admissions and confessions, 
 
 Title III. — General rules as to the oaths of the parties 
 TO the cause, .... 
 
 Title IV. — Of the oath in litem, 
 Chapter I. Of its competency, .... 
 
 II. Of its eflects, .... 
 
 Title V. — Of the oath in supplement, 
 Chapter I. Of its competency to prove furnishings by a merchant, 
 II. Of its competency in actions of aliment of natural 
 children, .... 
 
 III. Of the mode of taking the oath in supplement, and 
 
 of its effects, .... 
 
 Title VI. — Of the oath of calumny, . 
 Chapter I. Of its competency and effect in ordinary caui-es, 
 
 II. Of its competency and effect in consistorial causes, 
 
 Title YIl. — Of the oath on reference. 
 Chapter I. Of its competency, .... 
 IT. Of retracting a reference to oath, 
 
 III. Of deferring to the oath of the parly who makes the 
 
 reference, 
 
 Pug..- 
 
 813 
 
 814 
 
 822 
 822 
 827 
 834 
 
 SoO 
 856 
 8G1 
 
 8G9 
 
 877 
 881 
 883 
 
 890 
 
 893 
 893 
 897 
 
 890 
 899 
 
 902 
 
 90o 
 
 908 
 908 
 912 
 
 914 
 915 
 
 927 
 
 928
 
 XVI 
 
 CONTEXTS. 
 
 I'iisre 
 
 Cliapter IV. Of referring to the oath of one person as binding an- 
 other, ..... 929 
 V. Of the examination and re-examination, . . 946 
 VI. Of the intei'pretation and efiect of the oath on reference, 950 
 VIL Of contradicting and exphiining the oath by documents 
 
 to which it refers, . . .952 
 
 VIII. Of qnalified oaths on reference, . . . 955 
 
 IX. Of holding as confessed and reponing, . .971 
 
 Title YIII. — Of affidavits, .... 974 
 
 BOOK THIED. 
 
 OF TESTIMONY, OR THE EVIDENCE OF PERSONS EXAMINED 
 
 AS WITNESSES, . . . '. 979 
 
 Title I. — Of the admissibility of witnesses, . 979 
 
 Chapter I. General rule as to admissibility, . . 979 
 
 II. Of witnesses objected to on account of non-age, . 980 
 
 III. Of the admissibility of persons labouring under mental 
 
 disease, .... 985 
 
 IV. Of the admissibility of deaf and dumb witnesses, . 988 
 V. Of the exclusion of witnesses on the ground of atheism, 989 
 
 VI. Of the exclusion of witnesses on the ground of out- 
 lawry, ..... 993 
 VII. Of the admissibility of accomplices, . . 994 
 
 VIIL Of the admissibility of the parties to the cause, . 999 
 
 IX. Of the admissibility of the relations of the parties, , 1004 
 X. Of exclusion on the grcnni<l of agency, . . 1010 
 
 XL Of exclusion on account of bribery and promise of re- 
 ward, . . . . .1018 
 XII. Of exclusion on account of the party having tutored 
 
 them, ..... 1019 
 XIII. Of exclusion on account of having heard the evidence 
 
 of previous witnesses, . . . 1025 
 
 XIV. Of exclusion on account of enmity to the party against 
 
 whom the witnesses are adduced, . . 1026 
 
 XV. Of certain grounds of exclusion existing under former 
 
 law but now abolished, . . . 1034 
 
 XVI. Of witnesses disqualified as to one of several parties, . 1038 
 XVII. Of admitting exceptional witnesses where there is 
 
 penuria testium, .... 1040 
 
 Title II. — Uf objections to the credibility of witnesses, 1042
 
 CONTENTS. XVll 
 
 Page 
 
 Title 111. — Ur stating and i-kuving objections to wit- 
 nesses, . . . 1053 
 Chapter T. Of the tiiue for stating and proving the objections, 1053 
 IT. Of the mode of proving the objections, . . 10o5 
 III. Of reprobators, . . . . lOJ'J 
 
 Title IV, — Of the exclusion of witnesses on the ground 
 
 OF JUDICIAL AND OFFICIAL POSITION ; AND OF 
 EVIDENCE EXCLUDED FROM REGARD TO THE PUB- 
 LIC SERVICE, .... 1061 
 
 Chapter I. Of the exclusion of judges on matters which occurred 
 
 before them judicially, . . . lOGl 
 
 II. Of the exclusion of jurors on matters which occurred 
 
 among them in that capacity, . . 10G4 
 
 III. Of examining witnesses as to deliberations in Parlia- 
 
 ment, ..... 1067 
 
 IV. Of official communications with, and investigations by, 
 
 public functionaries, . . • 1068 
 
 1074 
 
 Title V. — Of evidence privileged on the grol^nd of con- 
 fidentiality, .... 
 Chapter I. Of confidentiality in communications betw^een i)arties 
 
 on the same side of the cause, . .1074 
 
 II. Of confidentiality in communications between husband 
 
 and wife, . . . .1075 
 
 III. Of confidentiality in communications between a party 
 
 and his legal adviser, . . .1077 
 
 IV. Are communications made by a party to a clergyman 
 
 or physician privileged ? . . .1091 
 
 Title VI. — Of the procedure for compelling witnesses to 
 
 attend and depone, . . . 1096 
 
 Title VII. — Of the personal protection of witnesses, . 1109 
 
 Title VIII. — Of the examination of witnesses, . 1 1 1 1 
 
 Chapter I. Before whom the examination is conducted, . 1111 
 11, Of the rule that witnesses must depone hi cot(sa, and 
 
 of transferring depositions from another cause, . 1 116 
 
 III. Of examinations before and after answer, . .1124 
 
 IV. Of taking depositions to lie m ?-e^<'«//s, . • 1126 
 V. Of taking depositions in civil jury causes, where at- 
 tendance at the trial cannot be obtained, . 1133 
 
 VI. Of taking the depositions of dying witnesses in criminal 
 
 cases, . . • • .1138 
 
 . . b
 
 XVlll 
 
 CONTENTS. 
 
 Chapter VI 1. Of tbe rule that witnesses imist be sworn, . 
 VIII. Of the mode of conducting the examination, 
 IX. Of writing out the depositions, . 
 X. Of circumduction, .... 
 XI. Of the number of witnesses required to complete a 
 legal proof, and of corroboration and contradiction 
 in testimony, .... 
 
 Page 
 
 1140 
 1143 
 1177 
 1181 
 
 1182 
 
 BOOK FOUETH. 
 
 OF REAL EVIDENCE, OR EVIDENCE DERIVED FROM THINGS, 
 
 1187 
 
 Addenda et Corrigenda, 
 
 Appendix, 
 
 No. I. Act 3 and 4 Vict., c. 59, 
 II. Act 6 and 7 Vict., c. 82, 
 
 III. Act 15 and Ifi Vict., c. 27, 
 
 IV. Act 16 and 17 Vict., c. 20, 
 V. Act 17 and 18 Vict., c. 34, 
 
 VI. Act 18 Vict., c. 25, . 
 
 VII. Act 19 and 20 Vict., c. 56, 
 
 VIII. Act 26 and 27 Vict., c. 85, 
 
 IX. Act 19 and 20 Vict., c. 113, 
 
 X. Act 22 Vict., c. 20, 
 
 XI. Act 22 and 23 Vict., c. 63, 
 
 XII. Act 24 and 25 Vict., c. 11, 
 
 XIII. Forms of Deposition, 
 
 Index, 
 
 1197 
 1203 
 1203 
 1204 
 1206 
 1207 
 1208 
 1210 
 1211 
 1211 
 1212 
 1213 
 1215 
 1216 
 1218 
 
 1223
 
 LlS'l' OF AmUUCN'lATloNS 
 
 MX 
 
 LIST OF ABBREVIATIONS. 
 
 Ad. ou Jur. Tr. . . . Adam oa Jury Trial in Scotland, 1836. 
 
 Ad. and Ell Adolplius and Ellis's Reports, King's Bench. (Eng.) 
 
 Al Alison's Principles and Practice of the Criminal Law in Scot- 
 land, 1832. 
 
 Anderson Andcrsim's Pioports, Common Pleas. (Eng.) 
 
 Andrew Andrew's Eeports, King's Bench. (Eng.) 
 
 Arkley Arldcy's Pieports of Cases in the Court of Justiciary. 
 
 A. S Acts of Sederunt of the Court of Session. 
 
 Atk Atkyn's Eeports, Chancery. (Eng.) 
 
 Bankt 
 
 Barn, and Ad. . . . 
 Barn, and Aid. . . . 
 Barn, and Cres. . . . 
 Bayley ou Bills . . . 
 
 Beavan 
 
 Beck 
 
 Bell's Ap. Ca. . . . 
 
 Bell, Com 
 
 Bell, Die 
 
 Bell, Fo. Ca 
 
 Boll on Deeds . . . 
 Bell's Notes .... 
 Bell on Testing Clause 
 
 Bell, Oct. Ca. 
 Bell's Pr. . . 
 Benth. Jud. Ev. 
 Best, Pr. of Ev. 
 Best on Pros. 
 
 Bing 
 
 Bishop, Mar. and Div 
 
 Bankton's Institute of the Law of Scotland, 1761. 
 Barncwall and Adolplius' Pieports, King's Bench. (Eng.) 
 Barnewall and Aldcrson's Reports, King's Bench. (Eng.) 
 Barnewall and Cresswell's Reports, King's Bench. (Eng.) 
 5th edition, 1830. (Eng.) 
 Beavan's Eeports, Roll's Court. (Eng.) 
 Beck's Medical Jurisprudence, 7th ed., 184"2. 
 Bell's Cases in the House of Lords. 
 
 Bell's Commentaries on the Law of Scotland, 6th ed., 1826. 
 Bell's Dictionary of the Law of Scotland, 4th ed., 1838. 
 Bell's Folio Cases in the Court of Session. 
 Bell on the Forms of Deeds in Scotland, 3d ed., 1811. 
 Boll's Notes to Hume on Crimes, 1844. 
 
 Bell's Lectures on the Solemnities required to Deeds iu Scot- 
 land, 1795. 
 Bell's Octavo Cases iu the Court of Session. 
 Bell's Principles of the Law of Scotland, 4th ed., 1839. 
 Bentham's Rationale of Judicial Evidence, 5 vols., 1827. 
 Best's Principles of Evidence, 2d ed., 1854. (Eng.) 
 Best on Presumptions, 1844. (Eng.) 
 Bingham's Reports, Common Plciis. (Eng.) 
 Bishop on the Law of Marriage and Divorce. (American.)
 
 XX LIST OF ABBREVIATIONS. 
 
 Black. Com Blackstone's Commentaries. (Eng.) 
 
 H. Black Henry Blackstone's Keports, Common Pleas. (Eng.) 
 
 W. Black Sir William Blackstone's Reports, King's Bench and Common 
 
 Pleas. (Eng.) 
 
 Bligli Bligli's Cases in the House of Lords. 
 
 Bos. and Pul. . . . Bosanqnet and Puller's Reports, Common Pleas. (Eng.) 
 
 Br. Sup Brown's Supplement of Cases in the Court of Session. 
 
 Br. Synop Brown's Synopsis of Cases in the Court of Session. 
 
 Brod. and Bing. . . . Broderip and Bingham's Reports, Common Pleas. (Eng.) 
 
 Broun ...... Broun's Reports of Cases in the Court of Justiciary. 
 
 B^o^^^l, C. C Brown's Chancery Cases. (Eng.) 
 
 Brown, Pari. C. . . . Brown's Parliamentary Cases. (Eng.) 
 
 Buoh. Rep Buchanan's Reports of Remarkable Cases in Scotland. 
 
 Bull. N. P. .... Buller's Law of Nisi Prius. (Eng.) 
 
 Burge Burge's Commentaries on Foreign and Colonial Laws, 1838. 
 
 Burnett Burnett's Criminal Law in Scotland, 1811. 
 
 Burrow Burrow's Reports, King's Bench. (Eng.) 
 
 Camp Campbell's Nisi Prius Reports. (Eng). 
 
 Car. and Kir. . . . Carrington and Kirwan's Nisi Prius Reports. (Eng.) 
 
 Car. and Marsh. . . Carrington and Marshman's Nisi Prius Reports. (Eng.) 
 
 Car. and Pa Carrington and Payne's Nisi Prius Reports. (Eng.) 
 
 Chitty on Bills . . . Chitty on Bills of Exchange, 9th ed., 1840. (Eng.) 
 
 Chitty, Cr. L. . . . Chitty's Criminal Law. 2d ed., 1826. (Eng.) 
 
 Chitty, R Chitty's Reports, King's Bench. (Eng.) 
 
 CI. and Finn. . . . Clark and Finnelly's Cases in the House of Lords. 
 
 Clark Clark's Cases in House of Lords. 
 
 CoUyer CoUyer's Chancery Reports. (Eng.) 
 
 Cowper Cowper's Reports, King's Bench. (Eng.) 
 
 Cox, Ch. Ca Cox's Reports, Chancery. (Eng.) 
 
 Cox. Crim. Cases . . Cox's Criminal Law Cases. (Eng.) 
 
 Cr. and Phil Craig and Phillip's Reports, Chancery. (Eng.) 
 
 Cr. and St Craigie and Stewart's Cases in the House of Lords. 
 
 Craig Craig's Jus Feudale, 1732. 
 
 Crawf. and Dix. . . . Crawford and Dix's Irish Circuit Reports. 
 
 Cromp. and Jer. . . Crompton and Jervis' Reports, Exchequer. (Eng.) 
 
 Cromp. and Mee. . . Crompton and Meeson's Reports, Exchequer. (Eng.) 
 
 Cromp. Mee. and Ros. Crompton, Meeson and Roscoe's Reports, Exchequer. (Eng.) 
 
 Curt Curteis' Ecclesiastical Cases. (Eng.) 
 
 Dav. and Mer. . . . Davidson and Merival's Reports, Queen's Bench. (Eng.) 
 
 1) Cases in the Court of Session, from 1838 to 18G2, by Dunlop 
 
 and others, 
 
 De. and And. . . . Deas and Anderson's Cases in the Court of Session. 
 
 De Gex, Mac. and G. . De Gex, Macnaughton, and Gordon's Cases in Chancery. (Eng.) 
 
 Dennison Dennison's Crown Cases. (Eng.) 
 
 Dickens Dickens' Reports, Chancery. (Eng.) 
 
 Dig Digest (Pandects) of Civil Law. 
 
 Dirleton Dirleton's Doubts on the Law of Scotland, 1715. 
 
 Dow Dow's Cases in the House of Lords. 
 
 Dow and CI Dow and Clarke's Cases in the House of Lords. 
 
 Dow. and Ry. . . . Dowling and Ryland's Reports, King's Bench. (Eng.)
 
 J,IS1" OF ABBliEVIATIONS. XXI 
 
 Dowliuj^ Dowliiig's Cases in I'ractice. (Eng.) 
 
 Dufl", Feud. ( (III. . . Diiir's FYudiil Couvcyancing, 183m. 
 
 Durf. and E I )nrford and Eu.st's Reports, King's Bench. (Eng.) 
 
 Ea.st Ea&t's Reports, King's Bench. (Eng.) 
 
 Elch. . . . • . . . Elchies' Cases in the Court of Session. 
 
 Elch., Notes .... Elchies' Notes to his Cases. 
 
 El. and Bl Ellis and Blackburn's Cases in Queen's Bench and E.xclii- 
 
 quor. (Eng.) 
 
 El. Bl. and El. . . . Ellis, Blackburn, and Ellis' Queen's Bench Reports. (Eng.) 
 
 Eng. Jur English Jurist Reports. 
 
 Ersk Erskine's Institutes of the Law of Scotland, ed. 1842. 
 
 Esp Espinasse's Nisi Prius Reports. (Eng.) 
 
 F. and F Foster and Fiulayson's Cases at Nisi Prius. (Eng.) 
 
 F. C Faculty Collection of Cases in Court of Session. 
 
 Ferg. Con. Law . . . Fergusson's Consistorial Law, 1829. 
 
 Ferg. Con. Rep. . . . Fergusson's Consistorial Reports, appended to his Consistr.rial 
 
 Law. 
 Ferg. Rep. in Div. Ca. Fergusson's Reports in Divorce Cases. 
 Forsyth on Tr. . . . Forsyth on the Law of Trusts, 1844. 
 
 Fost Foster's Crown Law, 3d ed., 17Sj)2. (Eng.) 
 
 Fount Fountainhall's Cases in the Court of Session. 
 
 Eraser on Pers. and "(^ f Eraser on the Law of Scotland applicable to Personal and 
 Dom. Rel. . . j \ Domestic Relations, 1846. 
 
 Gale Gale's Reports, Exchequer. (Eng.) 
 
 Gale and Dav. . . . Gale and Davidson's Reports, King's Bench. (Eng.) 
 Gilbert, Eq. R. . . . Gilbert's Equity Reports. (Eng.) 
 
 Glassford Glassford on Evidence, 1820. 
 
 Greenleaf Greenleaf on Evidence, 1854; vol. i, 7th ed.; vol. ii, ."Sth rd.; 
 
 vol. iii, 2d ed. (American.) 
 
 H. Black See Black. 
 
 Hagg. Con. Rep. . . Haggart's Consistory Reports. (Eng.) 
 
 Hagg. Ec. R Haggart's Ecclesiastical Reports. (Eng.) 
 
 Hailes Hailes' Cases in the Court of Session. 
 
 Hale Hale's Pleas of the Crown, 2d ed., 1800. (Eng.) 
 
 Har. and Wol. . . . Harrison and WoUaston's Reports, King's Bench. (Eng.) 
 
 Hare Hare's Reports, Vice-Chancellor Wigram's Court. (,Eng.) 
 
 Harg., St. Tr. ... Hargrave's State Trials. 
 
 Holt Lord Holt's Reports. (Eng.) 
 
 Holt, N. Pr Hulfs Nisi Prius Reports. (Eng.) 
 
 How. St. Tr Howell's State Trials. 
 
 Hunter's Land, and Ten. Hunter's Law of Landlord and Tenant, 2d ed.. 184.'). 
 
 Hume Hume's Commentaries on the Criminal Law of Scotland, "d 
 
 ed., 1829. 
 
 Hume D Hume's Decisions in the Court of Session. 
 
 Hurl, and Gord. . . . Hurlstonc and Gordon's Exchequer Reports. (Eng.) 
 
 Irv Irvine's Cases in the Court of Justiciary. 
 
 Ivory's Ersk Erskine's Institutes of the Law of Scotland, Mr Ivory's edi- 
 tion, 1824.
 
 -XXU LIST OF ABBREVIATIONS. 
 
 Jac. and Walk. . . . ,lacob and Walker's Reports, Chancery. (Kiij;.) 
 
 Jacob TacoL's Reports, Chancery. (Eng.) 
 
 J. Shaw See Shaw. 
 
 Jur Scottish Jurist. 
 
 Jur. N. S New Series of English Jurist Reports." 
 
 Karnes' Law Tr. . . Karnes" Law Tracts, 4th ed., 1792. 
 
 Keble Keble's Reports, King's Bench. (Eng.) 
 
 Keen Keen's Reports, Chancery. (Eng.) 
 
 Kent Kent's Commentaries 1840. (American.) 
 
 L. J Law Journal Series of Reports. (Eng.) 
 
 L. T Law Times Series of Reports. (Eng.) 
 
 Lea, Ca. Temp. Hardw. Lea's Cases in time of Lord Hardwick. (Eng.) 
 
 Lea, C. C Leach's Crown Cases. (Eug.) 
 
 Levinz Levinz"s Reports. (Eng.) 
 
 Lewin, C. C Lewin's Crown Cases. (Eng.) 
 
 Loftt Loftt's Reports, King's Bench. (Eng.) 
 
 M Morrison's Dictionary of Decisions in the Court of Session. 
 
 Ma. and Sel Maiile and Selwyn's Reports, King's Bench. (Eng.) 
 
 Mack. Cr Mackenzie on the Criminal Law of Scotland, 1716. 
 
 Mack. Inst Mackenzie's Institutes of the Law of Scotland, 1716. 
 
 Macf. Pr Macfarlane's Practice of the Court of Session in Jury Causes, 
 
 1837. 
 
 Macf. R Macfarlane's Reports of Jury Causes. 
 
 Maclau Maclaurin's Cases in the Court of Justiciary. 
 
 Macph Cases in Court of Session from 1862, by Macpherson and 
 
 others. 
 
 Macq Macqueen's Cases in the House of Lords. 
 
 Man. and Gr. ... Manning and Granger's Reports, Common Pleas. (Eng.) 
 
 Man. Gr. and Scott . Manning, Granger, and Scott's Reports, Common Pleas. (Eng.) 
 
 Man. and Ry. . . . JMauning and Ryland's Reports, King's Bench. (Eng.) 
 
 Marsh Marshall's Reports, Common Pleas. (Eng.) 
 
 M'L. and Rob. . . . Maclean and Robinson's Cases in the House of Lords. 
 
 Mee. and Wei. . . . Meeson and Welsby's Reports, Exchequer. (Eng.) 
 
 Meriv Merivale's Reports, Chancery. (Eng.) 
 
 Mod Modern Reports. (Eng.) 
 
 Moo. Cr. Ca Moore's Crown Cases. (Eng.) 
 
 Moo. Pr. C. C. . . . Moore's Privy Council Cases. (Eng.) 
 
 Moo. and Mai. . . . Moody and Malkin's Nisi Prius Reports. (Eng.) 
 
 Moo. and Pa Moore and Payne's Reports, Common Pleas. (Eng.) 
 
 Moo. and Rob. . . . Moore and Robinson's Nisi Prius Reports. (Eng.) 
 
 Moo. and So Moore and Scott's Reports, Common Pleas. (Eng.) 
 
 More More's Notes to Stair's Institutes of the Law of Scotland. 
 
 Mur Murray's Reports of Cases in the Jury Court. 
 
 Myl. and Cr Mylnc and Craig's Reports, Chancery. (Eng.) 
 
 Myl. and Kee. . . . Mylne and Keen's Reports, Chancery. (Eng.) 
 
 Napier on Prescr. . . Napier on the Law of Prescription in Scotland, 1854. 
 
 Nev. and Man. . . . Nevile and Manning's Reports, King's Bench. (Eug.) 
 
 Nev. and Per. . . . Nevile and Perry's Reports, Queen's Bench. (Eng.)
 
 LIST OF ABBKEVIATIONS. xxiii 
 
 Patou'tf Ap. Ca. . . . Paton'« Cases iu tho llouho of Lords. 
 
 Fea. Ev IVako on Evidence, 5tli ed., 1822. (Eng.) 
 
 Pea. R I't-ako'b Ni.si Prius Ik'iiorts. 
 
 Vev. and Dav. . . . Perry and Davidson'.? Pieports, Queen's BencJi. 
 
 Phill Phillips on Evidence, 9th cd., 1843. (Eng.) 
 
 Phill. Ec. It Philliiiiore's Ecclesiastical Reports. (Eng.) 
 
 Pitc. Tr Pitcairu's Criminal Trials in Scotland. 
 
 Pollex Pollexfen's Reports. (Eng.) 
 
 Price Price's Reports, Exchequer. (Eng.) 
 
 P. Williams .... See Williams. 
 
 Reg. Maj Kcgiaiu Majestateni. 
 
 Rob. Adni Robinson's Admiralty Reports. (Eng.) 
 
 Rob. Ap. Ca Robertson's Cases in the House of Lords. 
 
 Rob. Ap. Ca., vol. i or ii Robinson's Cases in the House of Lords. 
 
 Rob. Eccl. Rep. . . . Robertson's Ecclesiastical Reports. (Eng.) 
 
 RoUes' Abr Rolles' Abridgment. (Eug.) 
 
 Rose. Cr. Ev. ... Roscoe's Evidence in Criminal Cases, 3d ed., 184G. (Eng.) 
 
 Rose. Ni. Pr Roscoe's Evidence at Nisi Prius, 8th ed., 1851. (Eng.) 
 
 Ross Lea. Ca. . . . Ros.s' Leading Cases on the Law of Scotland. 
 
 Ross Lee Ross' Lectures on Conveyancing, 1822. 
 
 Russ Russell's Reports, Chancery. (Eng.) 
 
 Russ. Cr Russell on Crimes, 3d ed., 1848. (Eng.) 
 
 Russ. and My. . . . Russell and Mylne's Reports, Chancery. (Eng.) 
 
 Russ. and Ry. . . . Russell and Ryan's Crown Cases. (Eng.) 
 
 Ry. and Moo. . . . Ryan and Moody's Nisi Prius Reports. (Eng.) 
 
 S Cases in Court of Session from 1821 to 1838, by Shaw an.( 
 
 Dunlop and Others. 
 
 S. C Same Ca.se. 
 
 Salk Salkfield's Reports. (Eng.) 
 
 Saund Saundcr's Reports. (Eng.) 
 
 Sch. and Lef. . . . Schoales and Lefroy's Chancery Reports. (Ireland.) 
 
 Sc. Jur Scotti.sh Jurist Series of Reports. 
 
 Scott Scott's Reports, Common Pleas. (Eng.) 
 
 Scott N. R Scott's New Reports, Common Pleas. (Eng. 
 
 Sel. N. P Selwyn's Law of Nisi Prius, 11th ed., 1845. (Eng.) 
 
 Sh. Ap Shaw's Cases in the House of Lords. 
 
 Sh. Dig Shaw's Digest of Decisions in the Supreme Courts of Scot- 
 land. 
 
 Sh. and M'L. . . . Shaw and Maclean's Cases in the House of Lord.^. 
 
 Sh. Just. Ca. ... P. Shaw's Cases in the Court of Justiciary. 
 
 Shand's Pr Shand's Practice of the Court of Session, 1848. 
 
 J. Shaw John Shaw's Cases in the Court of Justiciary. 
 
 Siderf Siderfin's Reports. (Eng.) 
 
 f^ii" Simon's Reports, Vico-Chancollor's Court. (Eng.) 
 
 Sim. ami Stu. . . . Simons and Stuart's Reports, Vice-Chancellor's Court. (Eng.) 
 
 Skin Skinni.r's Reports, King's Bench. (Eng.) 
 
 Smaile and GifT. Chan. Smaile and Giflord's Reports in (,'hancory.XEug.) 
 
 Smith's Lea. Ca. . . Smith's Loading Cases. (Eng.) 
 
 Rt- Tr State Trials, reported by Cobbett and Howell. 
 
 f^tair ... Stair's Institutes of the Law of Scotland.
 
 XXIV LIST OF ABBREVIATIONS. 
 
 Stark. Ex Starkie on Evidence, 3d ed., 1842. (Eng.) 
 
 Stark. K. . . . . Starkie's Reports. (Eng.) 
 
 Stew. Answ SteM-art's Answers to Dirleton's Doubts on the IjUW of Scot- 
 land. 
 
 Story, Cent! Story's Conflict of Laws, 2d ed., 1841. 
 
 Strange Strange's Reports. (Eng.) 
 
 Swab, and Trist. . . Swaboy and Tristram's Probate and Divorce Cases. 
 
 Swanst Swanston's Reports, Chancery. (Eng.) 
 
 Swin Swiuton's Cases in the Conrt of Justiciary. 
 
 Sym Syme's Cases in the Court of Justiciary. 
 
 Tait Ev Tait's Law of Evidence, 3d ed., 1834. 
 
 Taunt Taunton's Reports, Common Pleas. (Eng.) 
 
 Taylor Taylor on Evidence, 1848. (Eng.) 
 
 Temp, and Mew. . . Temple and Mew's Criminal Cases. (Eng.) 
 
 Thomson on Bills . . 2d ed., 1836. 
 
 Toml. L. Die. . . . Tomlin's Law Dictionary. 
 
 Turn, and Russ. . . Turner and Russell's Reports, Chancery. (Eng.) 
 
 Tyrw Tyrwhitt's Reports, Chancery. (Eng.) 
 
 Tyrw. and Gr. . . . Tyrwhitt and Granger's Reports, Exchequer. (Eng.) 
 
 Vaugh Vaughan's Reports, Common Pleas. (Eng.) 
 
 Ventr Ventris' Rejjorts, King's Bench and Common Pleas. (Eng.) 
 
 Vern Vernon's Reports, Chancery. (Eng.) 
 
 Ves Vesey junior's Reports, Chancery. (Eng.) 
 
 Ves. sen Vesey senior's Reports, Chancery. (Eng.) 
 
 Ves. and Bea. . . . Vesey and Beame's Reports, Chancery. (Eng.) 
 
 AV. and S AVilsou and Shaw's Cases in tlie House of Lords. 
 
 Wallace Wallace's Principles of tile Law of Scotland. 
 
 Wigram Wigram on "Wills, 3d ed. (Eng.) 
 
 "Willes Willes' Reports, Common Pleas, &c. (Eng.) 
 
 Wills, Circ. Ev. . . . Wills on Circumstantial Evidence, 1838. (Eng.) 
 
 ' Wils Wilson's Reports, King's Bench and Common Pleas. (Eng.) 
 
 Wils. Exch Wilson's Exchequer Reports. (Eng.) 
 
 P. Williams .... Pere William's Reports, mostly in Chancery. (Eng.) 
 
 Youuge Younge's Exchequer Reports. (Eng.) 
 
 You. and Coll. Ch. R. . Younge and Collyer's Reports, Vice-Chancellor's Court. (Eng.) 
 
 You. and Coll. Ex. R. Younge and Collyer's Exchequer Reports. (Eng.) 
 
 You. and Jer. . . . Younge and Jervis' Exchequer Reports. (Eng.)
 
 INDEX OF CASEP. 
 
 XXV 
 
 INDEX OF CASES. 
 
 Abbot V. Abbot, 635. 
 
 II V. Massic, 149. 
 Abercrombio, 441. 
 Abercrombio v. Acliirfon, 402. 
 
 // V. Innes, 453. 
 
 '/ V. Story, 244. 
 
 Aberdeen Banking Co. v. Maberly, 1153, 
 1154. 
 
 n College v. Lady Hay, 142. 
 
 » Earl, 709. 
 
 II Earl V. Duncan, 710. 
 
 n V. Forbes, 770. 
 
 » Magistrates of, 1131. 
 
 // Magistrates of v. IMore, 89, 974, 
 
 975, 1117, 1122. 
 
 * Kailway Co. v. Blaikie, 141, 493, 
 
 637, 649. 
 
 n Town & C. Bank v. Clark, 4. 
 
 Abergeldy, Lady v. ber Son, 394. 
 Abernethy v. Forbes, 278, 421, 424, 531. 
 
 // V. Ogilvy, 721, 725. 
 
 Aboyne, Earl of v. Town of Edin., 23. 
 
 u Lady v. her Tenants, 951. 
 
 » V. Magistrates of Edin., 170. 
 Abraham v. Dubois, 601. 
 Accero v. Petroni, 1151. 
 Adair v. Adair, 569. 
 Adam v. Anderson, 839. 
 
 // V. Boyd, 260. 
 
 '/ V. Drummond, 534. 
 
 » V. M'Lachlan, 871, 914, 915, 918, 
 929, 943, 744. 
 
 II V. Sutherland, 1198. 
 
 '/ V. Wylie, 528. 
 Adams, 1106. 
 
 I, V. Floyd, 1169. 
 
 « V. M'Intosh, 988. 
 
 // V. Pct.T?, 374. 
 
 II V. Reid, 1053. 
 n V. Scott, 984. 
 Adamson, 765, 812. 
 
 '/ V. Adamson, 382. 
 // V. Porteous, 737. 
 Adie V. Gowans, 65. 
 Advocate-General v. Smith. 144, 549. 
 
 Advocate-General v. Sinclair, 115. 761, 
 
 762, 1115. 
 Advocate, Lord v. Urquhart, 703. 
 Aglionby v. \Vatson, 129. 
 Agnew V. Agnew, 394, 579. 
 
 '/ V. M'Kae, 310, 956. 
 Aikman, 136, 178. 
 
 II V. Aikman, 5, 573. 
 
 n V. Cockburn, 1182. 
 
 n V. D. Hamilton, 1125. 
 Aimers, 1188. 
 
 Ainslie v. Chisholm, 473, 485, 873. 
 Airley, Earl v. Sharp, 954. 957. 
 Airth, L. v. Blackwood, 757. 
 Aitchison's Assignee v. Drummond, 939, 
 
 940. 
 AitcHson v. Herring, 386. 
 
 o V. M'Donald, 258, 923. 
 
 // V. Patrick, 96, 552, 688, 730, 
 
 1035, 1132. 
 
 '/ V. Robertson, 101, 873. 
 
 n Sinclair, 1029. 
 
 Aitken v. Charles, 4. 
 
 // V. Finlay, 947, 949, 954, 966. 
 
 « V. Goodlets, 228. 
 
 n V. Hewat, 802. 
 
 V. Mitchell, 236. 
 
 « V. Neill, 903. 
 
 u v. Reid, 27, 77. 
 
 •I v. Weir, 1023. 
 Aitkenhead v. Aitkenhead, 569. 
 
 » V. Black, 807. 
 
 Alton v. M'Culloch, 18. 25, 1150. 1155. 
 Alcock V. Delay, 95, 613. 
 
 AT V. Eason, 293, 294, 295, 296, 329, 
 337, 339, 341, 344, 363, 824, 
 829, 880, 957, 1126. 
 Alderson v. Clav, 99. 
 Alexander, 44, 79, 429, 878. ' 
 
 '/ V. Alexander, 485. 
 
 » V. Badenoch, 354, 358. 
 
 V. Gillan, 122. 124, 172. 177. 
 
 " V. M'Court, 865. 
 
 » V. Montgomery, 393. 499, 500. 
 
 • V. Oswald, 737, 757.
 
 i.XM 
 
 INDEX OF CASES. 
 
 Alexander V. Suulf, 711. 
 Alison, 739, 810, 1110. 
 
 II V. Alisou, 374, 379, 727. 
 Alison's Cessio, 852. 
 Alison V. Seton. 258. 
 
 « T. Watson, 1001. 
 Alenonv. Furnival, lOG. 109, 113. 
 Allan, 30. 
 
 » V. Allan, 580. 
 
 " V. Baird, 57, 02. 
 
 '/ V. Beveridi:;e or Munnocli, 271, 273. 
 
 '/ V. Blair, 430, 431, 553. 
 
 '/ V. Edinburgh Parochial Board, 124. 
 
 » V. Galli, 709. 
 
 '/ V. Ker, 760. 
 
 '/ V. M'Kean, 553. 
 
 // V. Millar, 720, 725, 726. 
 
 n V. Murray, 5. 
 
 '/ V. Ormiston, 309, 813, 319, 870. 
 
 '/ V. Thomson, 176, 846. 
 
 » V. Young, 543, 9G1. 
 AUardyce v. Forbes, 447, 469. 
 
 '/ V. Robertson, 65, 66. 
 
 Allen V. Denstone, 873. 
 
 u V. Pink, 133. 
 Alva, Earl v. Stirlingshire Freeholders, 
 
 740. 
 Alves V. Bunbury, 751. 
 
 II V. Hogson, 602. 
 Anderson, 735, 810. 
 
 n and Others, 865. 
 
 » V. Creditors, 891. 
 
 „ V. Anderson, 470, 472, 705, 856. 
 
 « v. Blair, 1125. 
 
 // V. Boyd, 112, 773. 
 
 » V. Buchanan, 244, 245. 
 
 . V. Buck, 375. 
 
 II V. Clauston, 871. 
 
 » V. Cook, 443, 444. 
 
 » V. Drysdale, 730. 
 
 V, Dolard (Elgin's Trs.), 1087. 
 
 » V. Forth Marine Co., 120. 
 
 '/ V. Gill, 16, 470, 539, 557, 558, 
 
 564, 785, 1060. 
 
 u V. Guild, 491. 
 
 V. Hallev, 341, 374, 957. 
 
 V. Jeffi-f.v, 054, 854, 855, 870, 
 
 ion". 
 
 // V. Johnston, 558. 
 
 II V. Lorimer, 254. 
 
 T. Lows, 779, 780. 
 II V. Maconochie, 776. 
 
 V. Marshall, 865, 1092, 1095. 
 // V. Monteith, 977. 
 
 V. Murray, 1118, 1120. 
 
 V. Pott, 125, 824. 
 /' V. Pvper, 12. 
 
 II V. liintoul, 882, 883. 
 
 II V. Bank of Scotland. 524, 527, 
 
 551, 552. 
 
 V. Smith, 121. 
 
 V. Sprout, 1023. 
 
 V. Tarbet, 386, 468. 
 // V. Thomson. 70C. 
 
 Anderson v. Watson, 648, 649, 
 V. Wisliart, 808, 1156. 
 " and Child v. Wood, 333. 
 
 Andrew and Otliers, 865. 
 
 II V. Andrew, 112. 
 
 " V. Bulk, 255. 
 
 '/ V. Murdoch, 644. 
 Andrews v. Dobson, 158. 
 
 " V. Thomson, 447. 
 Angus V. Magistrates of Ediiiburgli, 1039. 
 Angiesea, Marq. of v. L. Hatherton. 24. 
 Aunandale, 755, 770, 811. 
 
 // V. Dalziel, 1128. 
 
 II M. V. Hope, 769, 774. 
 
 // M. V. Johnston, 283. 
 
 // Peerage, 124. 
 
 Anon V. Anon, 1007, 1076. 
 Anstie v. Nelms, 154. 
 Anstruther v. Lewis, 949. 
 
 // V. Thomson, 119, 701. 
 
 V. Wilkie, 919, 923. 
 Apotliecary Co. v. Bentley, 9. 
 Arbuckle v. Taylor, 1071. 
 Applegirth v. Lockerby, 409. 
 Arbuthnot v. Burnet, 436. 
 
 // V. Campbell. 501. 
 
 n V. Douglas, 308. 313. 
 
 ti V. Pyper, 258. 
 
 II V. Rait, 403. 
 
 '/ V. Reid, 504. 
 
 u V. Symon, 329. 
 
 V. Scott, 376. 
 Archibald v. Marshall, 453. 
 Ardblair, Lady v. her Husband, 401. 
 Argyle, Countess of v, Sherilf of Moray, 
 127, 404. 
 
 II D. V. M'Lean, 757, 770. 
 
 II E. V. L. M'Donald, 403. 
 Armstrong, 1006. 
 
 II V. Edin. and Leith Shipping 
 
 Co., 12. 
 V. Jolmstone, 302, 304, 1030. 
 V. Sharp, 1030. 
 V. Vair, 32, 113. 
 
 <. V. Wilson, 5, 543. 
 
 Armstrong's Assig. v. Leith Bank, 1035. 
 Armstrong's Trs. v. Leith Bank, 1137. 
 Anicil V. Robertson, 97, 151, 152, 690. 
 Aruot V. Brown, 1161. 
 
 II V. Drysdale, 1200. 
 
 II V. Gairdcn, 449, 635. 
 
 '/ V. Scott, 461, 463. 
 Arran, L. v. Crawford, 854, 855. 
 Artliur and Others, 718. 
 
 '/ V. Callin, 125. 
 Arrat v. Lindsay, 940. 
 Arrol V. King, 68. 
 
 '/ v. Marshall, 259. 
 Ashburton, L, v. Baillie, 229, 231. 
 Askew, 685. 
 
 Atherton v. MolTat, 726. 
 Athole, D. V. Spankie, 98, 516. 
 
 V. Torrie (Glentilt Case), 23, 
 247.
 
 INDEX OF CASES. 
 
 XXVll 
 
 Atkinson v. Walls, 141. 
 Atterbury, Bishop, 110, 557, 558. 
 Attor.-Gen. v. Bowinau, 32. 
 
 « V. Biiaut, 1071. 
 
 II V. Dnuninoiul, 151, 155, 100. 
 
 V. IJiidldir, 1001, 1002. 
 
 " V. The.akson, 037. 
 
 Auchonlock v. Gonlon, 888. 
 
 '/ V. Miller, 258. 
 
 Auchmutie v. Ferguson, G90, 743, 1151. 
 Augliterlony, 718. 
 Auld V. Aikman, 340, 350. 
 // V. Magistrates of Ayr, 793. 
 // V. Smith, 137. 582, 583. 
 Avery v. Pixloy, 540. 
 Aveson v. L. Kiunaird, 79, 1070. 
 Ayton V. Duncan, 403. 
 
 " V. Napier, 475. 
 
 Bacon v. Chesney, 857, 873. 
 Badger v. L. Blautyre, 737. 
 Bailey v. Paterson, 22. 
 Baillie, 981. 
 
 " V. Baillie, 288. 
 
 . V. Bryson, 10, 29, 33, 92. 1044, 
 1140, 1155. 
 
 " V. Doig, 304, 720. 
 
 " V. Dunbar, 740, 745. 
 
 " V. Fraser, 128, 404. 
 
 » V. Johnston, 770. 
 V. Lockhart, 440. 
 
 " V. Mcnzies, 384. 
 
 « V. Pitilloch. 773. 
 
 • V. Scott, 418. 
 
 II V. Somorvel, 451. 
 
 II V. Wilson, 285. 400. 
 V. Young, 293, 324. 
 Bain v. Balfour, 740. 
 
 » V. Whitehaven Rail. Co., 010, 080. 
 Baird v. Baird, 854. 
 
 " V. Jaap, 474. 495. 
 
 /' V. Leslie, 909. 
 
 » V. Mitchell, 1153. 
 
 u V. Montgomery, 331. 
 Baker v. Buckle, 070. 
 
 '/ and Adams v. Scottish Sea lusur. 
 Co., 24, 872. 
 Balbirnie, L. v. L. Urtill, 630. 
 Balfour v. Balfour's Tr., 277. 
 
 * V. Laudails. 328, 340. 
 
 " V. Lyie, 34. 64, 008. 701. 711. 
 
 " V. Robertson, 729. 
 
 " V. Sharj), 695, 900, 902. 
 V. Thomson, 501, 512. 
 
 1 V. Wallace. 08. 
 Balingall v. Robertson, 431. 
 Ballindalloch v. Dalnoy. 743. 
 Ballard v. Way, 630. 
 Ballegarno, L.'v. Hav, 138. 
 Ballautyue v. Carter. 380. 300. 512, 513. 
 Ballender v. Law, 775. 
 Ballcntine v. Ross, 824. 
 Balmcr v. Hogarth. 53, 64, 00. 
 Balmerino's Crs.. L. v. I.adv ('oujiwr. 1128. 
 1129. 
 
 Balmerino, L. v. Lochinvar, 942. 
 Balnagowu v. Mackenzie, 757. 
 Banuatyne v. Charteris, 981, 982. 
 
 V. Wilson, 254, 204, 400. 
 Balvaird v. Latimer, 591. 
 Bamfield v. Massey, 25, 28. 
 Banbury Peerage Ca.se, 239, 240, 241. 
 
 « V. Matthews, 104. 
 
 Bank of Australasia v. Harding, 052. 
 
 Bank of Scotland v. , 298. 
 
 II V. Telfer's Crs., 455. 
 
 Banner v. Gikson, 354. 
 Bannerman v. his Crs., 1004, 1053. 
 II V. Feuwicks, 20, 20, 33. 
 
 Bannormans v. Smith, 231. 
 Baptie v. Barclay, 234. 
 Baptist Churches v. Taylor. 122. 380. 
 liarber v. Gingell, 375, 431. 
 Barbour v. Caddell. 436. 
 " V. Grierson. 009. 
 
 v.Newall, 599, 709, 711. 
 Barclay v. Alexander, 55. 
 '/ V. Barclay, 138. 
 » V. Biunie. 931. 
 
 V. Brown, 456, 810. 
 // V. College of St Ancb-ews, 240. 
 // V. Gifford, 1105. 
 Barden v. De Keverberg, 24. 
 Bargaddie Coal Co. v. Wark, 1080. 
 Bargeny v. Kennedy, 390, 
 Barings v. M'Queen, 4. 
 Barker v. Gingell, 521. 
 " V. Kippen, 334. 
 Barnes v. Hamilton, 940. 
 Barnet v. Colville, 390. 
 Barnwell, 839, 840. 
 Barr v. Bruce, 53. 
 Barrens v. Hutchison, 901. 
 Barret v. E. Home, 353. 
 Barrett Navigation v. Shower, 751. 
 Barrick v. Buba, 88. 
 Barrie v. Tait, 831. 
 Barron v. Ross, 364. 
 Barstow v. Cook, 227. 
 
 V. Inglis, 270, 484. 
 Bartholomew v. George, 989. 
 
 If v. Stephens. 113. 
 
 Barton v. Plummer, 1106, 1107. 
 Bartwhistle v. L. CI. Register, 755, 811. 
 Batchellor v. Honvwood, 558. 
 Bate V. Hill, 25, 28. 
 Batcman v. Bailey. 81. 
 
 " v. Pennington, 471. 
 
 Bath's Exr., Lady v. Johnston. 1078. 1083. 
 Bathgate v. Armstrong. 1080. 
 
 '/ Lady v. Coclirano. 5r.9, 573. 
 
 '/ V. Macadam. 824. 
 
 Baugli V. Murray, 112. 
 Brtvlev, Petitioner, 755. 
 Bavli.^ V. Att.-Gen., 160. 
 Bavnov, 330. 
 
 ■ " V. Belshea, 436. 
 '' V. Caino. 449, 635. 
 V. M'Grcgor, 42. 55. 
 V. M-Millan. 591.
 
 XXVIU 
 
 INDEX OF CASES. 
 
 Bayne v. Nisbet, 568. 
 Baxter, 1019. 
 
 " V. Kilgour, 1179. 
 Beaton, 865. 
 
 Beatsou v. Skene, 1069, 1070. 
 Beattie, 608. 
 
 II V. Baird, 361. 
 
 '/ V. llaliburton, 544. 
 
 n V. Lanibie, 496. 
 
 // V. Law, 169. 
 
 '/ V. Lee, 716. 
 
 /' V. Leii^htou and Mitchell, 1197. 
 
 „ V. M-Kay and Paterson, 749, 808. 
 
 /' V. M'Lellan, 63, 717. 
 
 // V. Park, 725. 
 
 '/ V. Paterson, 1198. 
 
 V. Rodger, 829. 
 II V. Thomson, 167. 
 Beaumont v. Fell, 162. 
 // V. Field, 159. 
 
 „ V. L. Glenlyon, 248. 
 
 // V. Mountain, 634. 
 
 Beck V. Learmonth, 334. 
 Becket, 1008. 
 Beg V. Nichols, 901. 
 
 // V. Rig, 725. 
 Begbie v. Brown. 248. 
 
 II V. Fell, 703, 766. 
 Begrie. 1023. 
 Belch, 256. 
 Bell, 84L 
 
 II V. Bell, 867, 1152. 
 » V. Fleming, 474. 
 // V. Gib, 939. 
 // V. Gow, 369, 669, 1197. 
 '/ V. Halliday, 124, 144. 482. 
 " V. King, 1036. 
 " V. Laraont, 177. 
 " V. M'Kuno, 259. 
 1 V. Marshall, 160. 
 '/ V. Mow, 46], 651. 
 ■1 V. Rcid, 1124. 
 «- V. Robertson, 1117. 
 V V. Syme's Trs., 918. 
 Bell's Creditors v. Dunbar, 514. 
 Belshes v. Stewart, 707. 
 
 // V. Elphinstou, 737. 
 Bennet v. Bennet's Trs., 618. 
 u V. Burgess, 250. 
 I, V. Faulden, 394. 
 Bennison, 193, 1153. 
 Beuyon v. Creswell, 666. 
 Bernal v. ]\I'Dougal, 8. 
 Berry v. Balfour, 713. 
 
 I, V. Murdoch, 253, 254, 883. 
 // V. Wil.son, 41. 44. 
 Ben-y's Reps. v. Wight, 340, 698, 872. 
 
 II Trs. T. Boyle, 344. 869. 
 Bertram v. Barry." 41, 102. 
 V. Milne. 1020. 
 V. Steel. 903. 
 Berty v. Darmer, 8. 
 Berwick v. Horsfall, 112. 
 Betson v. L. Grange, 1086. 
 
 Bett V. Hardy, 817, 946. 
 Betts V. Menzies, 1075. 
 Beveridge, 1160. 
 
 // V. Henderson, 120, 253, 261, 880 
 
 V. Scott, 142. 
 Bibb V. Thomas, 548. 
 Biddulph v. Lord Camoys, 635. 
 Bilsborough v. Bosomworth, 882. 
 Biuuey v. Kennedy, 903. 
 
 II V. Vaux, 8. 
 Binnie v. Biunie, 1182. 
 II V. Black, 008, 927. 
 „ V. Willox, 922, 924, 925. 
 Birch V. Depeyster, 153. 
 Birnie v. Montgomery, 757. 
 Birnie's Assignee v. Darroch, 385. 
 Birnies v. Polmaise, 424. 
 Birrel v. Moffat, 435. 
 Bishlop V. Mersey and Clyde Nav. Co., 4. 
 Bisset V. Bisset, 383, 384, 394. 
 Black V. Anderson, 825. 
 II V. Bell, 393. 
 ,1 V. Black, 317, 320. 
 // V. Booth. 275, 278. 
 // V. Campbell, 93, 687. 
 // V. Croall, 4.5, 643. 
 II V. Shaud's Crs., 314, 315, 316, 340, 
 344, 698, 872. 
 Blackadder v. Cockburn, 281, 282. 
 
 V. Milne, 328, 330, 332, 385. 
 Blackell v. Lang, 1068. 
 Blackett v. Sang, 66. 
 Blackwood, 1057. 
 
 // V. Hamilton, 774. 
 
 II V. Hay, 15, 136, 252. 
 
 II V. Milne's Crs., 723. 
 
 II V. Purves, 746. 
 
 // V. E. Sutherland, 708. 
 
 Blaikie v. Duncan, 27, 42. 
 Blaikies v. Aberdeen Railway Co., 803, 
 
 1103, 1104. 
 Blair, 30, 47, 1007, 1057. 
 
 V. Blair, 124, 126, 140, 148, 149, 
 
 160, 1G5, 166. 
 '/ V. Balfour, 318, 918, 941, 943, 953, 
 
 961. 
 " V. Hamilton, 277. 
 " V. Horn, 307, 814. 
 
 1 V. M'Phun, 947, 955. 
 
 " V. Magistrates of Brechin, 1120, 
 
 I V. Peddle, 442. 
 
 V. Russell, 698, 857. 
 
 II V. Stewart, 455. 
 Bland v. Short, 833. 
 Blako V. Pelford, 1071. 
 
 // V. Turner, 304. 
 Blankley v. Winstanley, 169. 
 Blantyre, Lord, 444. 
 
 II V. Glasgow, Paisley, &c., Rail. 
 Co., 1161, 1162. 
 Bloney, Baroness de v. Oswald's Reps., 
 
 1152. 
 Bloomfield v. Young, 393. 
 Blnxam v. E. Rosslyn, 811.
 
 INDEX OF CASES. 
 
 XXIX 
 
 Bluck V. Galbwartliv, lO'.d. 
 Blundell v. Gladstone, 14'J. 
 Blyth V. Trotter, 11:51. 
 Blyths V. Jl'Bain, (545. 
 Boag V. Fisher, 259, 304. 
 
 // V. Gilliea, 1U71, 1072. 
 Boddy V. Boddy, 10. 
 Boe V. Anderson, 027. 
 Boettcher v. Carron Co., 1133, 1130. 
 Bog V. Hepburn, 470. 
 Bogle V. Anderson, 779. 
 
 '/ V. Heirs of Sandiiills, 528. 
 Boghall, Lady v. Dueh. Lauderdale, 754. 
 Bolton V. Corporation of Liverpool, 1078. 
 Bone V. Bird, 848. 
 
 Bouethrone v. Bouetlirone's Tr.s., 707. 
 Bounar v. Simpson, 1141, 1142. 
 Bontein v. Bucluman's Crs., 053, 1118. 
 Bontine v. Boutine, 1199. 
 Booms, 880. 
 
 Borrowstouness Kirk-Session, 738. 
 Borthwick v. L. Advocate, 104, 785, 787. 
 '/ V. Bremner, 253, 372. 
 
 IT V. Carrutiiers, 8. 
 
 » V. Christi.\ 929. 
 
 '/ L. V. L. Galashiels, 745. 
 
 " V. Lawrie, 571, 594. 
 
 '/ V. Ramsay, 319, 907. 
 
 " V. Scott, 403. 
 
 Boswal V. Boswal, 450, 457, 458. 
 Boswell V. Boswell, 450, 495, 522, 532, 
 535, 538, 539. 
 V. Gray, 920. 
 " V. Irvine. 9:^0. 
 '/ V. Selkrig, 874. 379. 
 Bowie V. Bowie, 144, 018. 
 Bothwells V. Karl of Home, 420. 
 Bottemby v. Forbes, 152, 171. 
 Bouchier v. Lawson, 002. 
 Bovil V. Dixon, 421, 484. 
 Bowack, 597. 
 Bowan v. Ashley, 590. 
 Bowden v. Henderson, 232. 
 Bower v. Russell, 1078, 1084. 
 Bowman v. Kcr, 384. 
 Bowie V. Harvey, 927. 
 Boyd V. Anderson, 700, 804, 853. 
 
 " V. Fraser, 310, 311, 312, 817, 320. 
 " V. Kerr, 230, 903, 947. 
 " V. M'Keuna, Oil. 
 " V. Malloch, 757. 
 
 " V. Laird of Niddrie, 500, 507, 572. 
 '/ V. Reid, 1008. 
 II V. Storie, 480. 941. 
 I' V. Union Bank, 522. 
 Boyd's Crs. v. Martin's Exrs., 606. 
 Boycs V. Abercromby, 903. 
 
 '/ V. Dinwoodiea, 479, 499. 
 Boyes' Trs. v. Hamilton. 332, 840. 
 Boycs V. Henderson, 323. 
 Boyle V. Yule, 828. 1021. 
 
 II V. Cardinal Wiseman, 111. 
 Bovs V. Gillies, 940. 
 Bo'yter v. Rentoul, 112, 768, 773, 774, 776. 
 
 Bracegirdie v. Bailey, 1050. 
 Brack v. Johnston, 018. 
 
 11 V. Hogg, 408, 508, 609. 
 Blackenridge v. Menzies, 124. 
 Braidfoot v. Elphinston, 902. 
 Braidwood v. Braidwood, 1125. 
 
 II V. Hunter, 09. 
 
 Braidy v. Fairney, 474. 
 Bramwell, 608. 
 Brand v. Charteri,g, 2, 4. 
 
 II V. Linton, 597. 
 Brash v. Steele, 28, 806. 
 Braisfsr's Case, 984. 
 Bn aly v. Reed, 858. 
 Brebner v. Cook, 288. 
 Brechin, Mags, of v. Arbuthnot, 707. 
 Breichin v. Muirhead, 245. 
 Bremer v. Freeman, 024. 
 Brenton v. Maxwell, 932. 
 Breton v. Cope, 088. 
 Brett v. Beales, 034, 636. 
 Bridges v. Fordyce, 124. 
 Bright V. Legerton, 22, 699. 
 Brisl)ane v. Glasgow Merchants, 122, 179. 
 British Linen Co. v. Drummond, 352. 
 
 // V. Martin, 209, 273. 
 
 II v. Thomson, 095, 097, 
 
 883. 
 Britton v. Lang, 695. 
 Broad v. Pitt, 1093. 
 Brock V. Kellock, 222. 
 r.rodiL-, 1013, 1039. 
 
 II V. Blair, 25, 20, 27, 29. 
 
 " V. Brodie, 524, 784. 
 
 II V. Douglas, 772. 
 
 n V. Johnston, 43, 62. 
 
 « V. Shcddon, 304, 308. 
 
 " V. Thomson, 710. 
 Brady v. Cromarty's Crs., 127, 404. 
 Broom v. Edgley, 924, 930, 931. 
 Broomfield v. Young, 448, 452. 458. 
 Broorahall v. M. Douglas, 1118. 
 
 " v. L. Lauderdale, 781. 
 
 Broughtou V. Aitchison, 245, 246. 
 
 Poor Wife of v. M'Call, 400. 
 
 // V. Westoun, 349, 354. 
 
 Brouster v. Lees, 897. 
 Brown, 21, 30, 805, 983. 
 
 Petitioner, 497, 738. 
 
 " V. Aikeman. 394. 
 
 " V. Bedwell, 599. 
 
 " V. Brodie, 336. 
 
 '/ V. Brown. 550. 
 
 'I V. Campb.dl, 389. 512. 
 
 I V. Craw, 779, 780. 
 
 " V. Crawford, 300, 321, 870. 
 » V. Cuthill. 1155. 
 1/ V. Davis. 201. 
 
 II v. Dow, 902. 
 
 1 V. Edgley, 925. 
 » V. Fergiison, 923. 
 '/ V. Fleming. 245. 
 
 V. (iardner. 501. 506. 
 '/ V. Gilfillan. 1129.
 
 xx.x 
 
 INDEX OF CASES. 
 
 Brown v. Goodwin, 25. 
 
 " V. Henderson, 279, 651. 
 " V Herries, 534. 
 « V. Johnston, 429, 430, 483. 
 " V. Kerr. 285. 
 " V. Kerr of Kilbcrry, 1179. 
 » V. Langley, 143. 
 " V. Lawrie, 135. 
 '/ V. Love, 1161. 
 " V. M'lntvre, 318, 954. 
 " V. M'Kic', 1004, 1054. 
 II V. Mason, 396. 
 « V. Miller, 828. 829. 851, 820. 
 " V. Mitchell, 958, 961, 968. 
 " V. Moncur, 53. 
 " V. Muir, 527. 
 " V. Murray, 893, 896, 897. 
 " V. Nisbet, 712. 
 -/ V. Kankine, 456, 810. 
 II V. College of St Andrews, 176. 
 ', V. L. RoUo, 392. 
 // V. Smith, 903. 
 /' V. Watts, 612. 
 II V. Webster, 141. 
 II V. Lady Whittingliame, 517. 
 '/ V. Wilson, 6-50, 1028, 1003. 
 II & Co. V. Dunbar, 711. 
 11 and M'Leish. 998. 
 Brown's Trs. v. His Relations, 419. 
 Brownliill, 1106. 
 Brownlee v. Waddell, 581. 
 
 II V. Tennant and Co., 46, 463. 
 
 Browntree v. Jacob, 120. 
 Bruce, Petitioner, 120. 
 
 u V. Alexander, 576, 932, 933. 
 » V. Borthwick, 558. 
 
 & Co. V. Beatt, 873, 938. 
 V. Brace, 457, 458, 519, 572, 775. 
 V. Buchan, 474. 
 V. Carstairs, 169. 
 V. Hamilton, 499. 
 V. Jack, 330, 331, 918, 934. 
 V. Linton. 1001. 
 V. Xicolopulo, 113. 
 V. Petrie, 903. 
 V. Robson. 226. 
 V. Stewart, 457, 458, 470. 
 Brunton v. Angus, 340. 
 Bryan v. Murdoch, 377, 429, 482. 
 Bryce, 1008, 1096. 
 II V. Dickson, 544. 
 ff V. Kilpatrick, 386. 
 Bryden, 42. 
 Bryson, 1197. 
 
 // V. Duke of Athole, 892. 
 
 // V. Aytoun, 294, 348. 
 
 // V. Crawford, 38, 74, .381, 882, 470, 
 
 493. 559. 
 II v. Inglis, 26. 
 Bucclfuch. D. V. Fringle. 1161, 1162. 
 Buchan. 981, 983. 
 » V. Boyd, 973. 
 // V. Gauch, 431. 
 II V. Risk, 461. 
 
 Buchan v. Robertson Barclay, 313, 316, 
 943. 
 II E. V. Scot. Widows' Fund, 365. 
 II V. Taits, 705. 
 Buchanan v. Baillie, 894, 897. 
 V. Baird, 366, 507. 
 V. Buchanan. 22, 288, 397, 500, 
 551, 557, 560, 564, 900, 901. 
 // V. Crawford, 273. 
 
 " V. Cullen, 796. 
 
 " V. Denniston, 470. 
 
 V. Dickie, 420. 
 // V. Duncan, 486. 
 
 H V. M'Artey, 476. 
 
 II V. Magistrates of Dunfermline, 
 
 345, 346, 872. 
 " V. Logie, 972. 
 
 V. Macdonald, 303. 
 II V. Mollison, 278. 
 
 " V. Osborne, 650. 
 
 II V. Paterson, 548. 
 
 II V. Rucker, 751, 901. 
 
 V. Scott, 697. 
 // V. Yuills, 716. 
 
 Buckingham. Duchess v. Winterbottom, 
 
 1153. 
 Buist V. Lyon, 882, 883. 
 BuUen v. Mitchell, 112, 693. 
 Bullock V. Smiths, 1105. 
 Burbidge v. Sturrock, 63, 174, 176. 
 Burgess v. Burgess, 817, 825, 858, 860. 
 
 // V. Stainton, 017. 
 Burgh. V. Jenkins, 574. 
 Burke and M'Douall, 37. 210, 994. 1042. 
 
 1144. 
 Burleigh v. Fearn, 723. 
 II V. Stibbs, 107. 
 
 Brown v. Ogilvie, 231. 
 Burness v. Pennell, 63, 466. 
 Burnett v. Lutgrue, 1179. 
 // V. Maitland, 277. 
 Burnett, 79, 105, 649, 876. 
 '/ V. Ewan, 371, 527. 
 n V. Ritchie, 258. 
 Burns v. Burns, 253, 255, 256, 266, 855. 
 '/ V. Cumming, 904. 
 II V. Hart, 31, 34. 
 Burnside v. Bruce, 965. 
 Burr V. Harper, 557. 
 Burrell v. Hodge, 1155. 
 Burt V. Palmer, 872. 
 Burtenshaw v. Gilbert, 548, 549. 
 Burton and Saddlers Co., 801. 
 Bushby v. Renny, 500. 
 Butchart v. Dun. & Arbroath Rail. Co., 28. 
 // V. Ireland, 329. 
 
 '/ V. Moodie, 332. 
 
 Bute, Earl of v. Halyburton, 534. 
 Bute, Marquis of v. Cooper, 112. 762. 
 Butler V. Moore, 1093. 
 Butters v. Loch, 924. 
 Buxton V. Garnish, 94, 95, 613. 
 Byres v. Johnston, 572, 578, 582. 
 Byron v. Caw, 910.
 
 INDEX UF CA«ES. 
 
 X X x 1 
 
 Cuddull, (54'J. 
 
 " V. Siuclair, ■il'i, ■Hi. 
 » V. Moitlikiiiil & JoliiLstou.,-, 1020. 
 Ca.lzow V. Wilson, 108, 371, GOO. 
 Oaiu and Quin, 843. 
 Cairiicross v. Ilcatluy, 794. 
 
 V. Mitchell, 259, 2UG, 830. 
 Cairn v. Wil.son, 892. 
 Cairns, 57, 58. 
 Cairns and Others, 1007. 
 Cairns v. Gurioch's Crt'ditors. 403, 424. 
 » V. Gcrrard, 499, 500. 
 » V. Hunter, 901. 
 « V. Kipiien, tJ88, 873, 1144. 
 // V. Marian^ki, 54, G3. 77, 2G5, 81G. 
 Calder v. Aitchison, 149, 152, 175. 
 
 >, V. Calder, G08, 717, 727, 894, 896, 
 900. 
 Calderwood v. Courtie, 775, 10C3. 
 Caledonian v. Dumbartonshire Railway 
 
 Co., 48, 4G7. 
 Caledonian llailway Co. v. Lockhart, G89. 
 Callander v. Eddingtou, 11G5. 
 1/ V. Fiddes, 431. 
 
 „ V. Kilpatrick, 489, 540. 
 
 '/ V. Wallace. 346, 947, 948. 
 
 Calpie V. Kennedy, 393, 394. 
 Cameron, 112, 800, 843, 1098, 1132, 1192. 
 V. Anderson, 901, 11G2. 
 V. Armstrong, 921, 922, 925. 
 // V. Cameron, 324, 335, 474. 
 
 fi V. Camerons, 818. 
 
 '/ V. Cameron's Trustees, 92, 784. 
 « V. Dunskine, 964. 
 '/ V. Fvasi-r, 558, 561. 
 
 II V. Hamilton, 52. 
 
 V. Kerr, 40. 1112. 
 » V. Lawson, 1005. 
 
 V. Mackie, 618, 919. 
 V. M'Ewan, 725, 727. 
 // V. M'Phersons, 141. 
 
 V. Paul, 922, 1001. 
 Campbell, 34, 44, 839, 842, 1190. 
 
 » V. Aberdeen Insurance Co., 7. 
 V. Arrott, 883, 890. 
 V. Avr Bank, 255. 
 // V. Ballantvnc, 315, 874. 
 V. Bell, 434. 
 V. Black, 811. 
 V. Blackaddtr, 870. 
 V. Boswell, 143. 
 
 V. Campbell. 103, 229, 304, 308, 
 401, 712, 795, 796, 807, 939, 
 1079, 1082, 1087. 
 V. Cockburn. 279, 285. 
 •I V. Cooper's Trustees, 870, 
 // or Brown, 996. 
 Campbell, Lady v. Earl Crawford, 804. 
 // V. Crawford, 1005. 
 
 « V. Davidson, 89, 90, 805, 1121. 
 
 // V. Dougall, 507, 512. 
 
 « T. Douglas, 302, 956. 
 
 „ V. Dryden. 266. 
 
 V V. Fisher. 449. 
 
 Campbell v. Fry .son, G88. 
 " V. Gib.son, 490. 
 
 " V. Graham, 259. 
 
 V. Grant, 336, 431, 485. 
 V. Gray, 377. 
 
 V. Grierson, 295, 326, 341, 957. 
 V. Halkftt, 298. 
 V. Hill, 266, 830, 832, 
 « V. Kennedy, 137. 
 
 " V. Lainont, 226, 231. 
 
 V. Lang, 247. 
 
 V. M-Alibter, 271, 278, 774. 
 V. M'Cartney, 696, 882, 883. 
 V. Macfarlane, 79, 869, 877,1166 
 '/ V. M'Gibbon, 259. 
 
 V. M'Glashan, 499. 
 V. M'liaren, 894, 1180. 
 V. M'Lauchlan, 387, 388, 391. 
 V. M'Neil, 721, 823. 
 V. Jlitchell, 49. 
 '/ V. Montgomery, 480. 
 
 V. Monro, 388, 391, 514, 618. 
 II V. Murray, 741. 
 
 II V. Earl Itadnor, 168. 
 
 II V. lialston, 125. 
 
 II V. Robertson, 367, 441, 498, 505. 
 
 II V. Sassen, 137. 
 
 V. Scotland, 312, 882, 960, 962. 
 // V. Stein, 330, 353. 
 
 // V. Stewart, 245. 
 
 V. Tait, 949. 
 
 V. Turner, 206,830,922,924,925. 
 V. Tyson, 1145, 1159. 
 V. Wilson, 247, 248. 
 // V. York Buildings Co., 765. 
 
 and Smith, 1041. 
 Campbell's Trs. v. Campbell, 618, 627. 
 Campbelton, Mags, of v. Galbraith, 67. 
 Cannon v. Gordon, 568. 
 Cant V. Lochs, 934, 935, 962. 
 
 '/ V. Kinloch, 973. 
 Cantach v. Rose, 137. 
 Cardross, L. v. E. Mar, 568. 
 Cargill V. Dundee, and Perth Rail. Co., 12. 
 a V. Gould and Co., 250. 
 II V. Somerville, 245. 
 Carin v. Wilson, 892, 972. 
 Carlton v. Strong, 688, 808, 1121, 1129. 
 Carlisle v. Lawson, 179. 
 Carlyle Francis, Petitioner, 497. 
 Carmichael v. Demjister, 946. 
 V. Melville. 736. 
 V. Wilson, 591, 
 Carnarvon v. Villebois. 636. 
 Carnegie, 891, 989, 1030. 
 
 » v. Cruickshanks' Crs., 709. 
 " v. Napier, 895. 
 '/ v. Ramsay, 457. 
 v. Scott, 704. 
 Carnegy v. Carnegy, 882, 883. 
 Carnoustie, L. v. L. Meldrum, 1108 
 Carnoway v. Stewart, 401. 
 Camsfield. Lady v. D. Gordon. 328. 
 Carpenter v. Wahl, 28.
 
 XXXll 
 
 INDEX OF CASES. 
 
 Curraway v. Ewing, 429. 
 Carrick v. Kav, 570. 
 
 « V. Martin, 833. 
 
 /' V. Mills. 201. 
 Carricks v. Saundors. 106, 159. 
 Carruthers, 841, 1036. 
 
 " V. Graham, 552. 
 
 « V. Johnston, 252, 253. 
 
 V. Thomson, 106, 123. 
 Carse v. Halvburtou, 245. 
 
 II V. Kennedy, 548. 585, 776, 960. 
 Carsen, Warren, and Co. v. Miller, 248, 
 
 1198. 
 Carson v. M'Micken, 765. 
 Carstaii"s v. Stewart, 225. 
 Cash V. Taylor, 375. 
 Cassilis, E. v. Bargeny, 403. 
 
 // V. Kennedy, 445, 459, 534. 
 
 Castlehill v. Watson, 258. 
 Castlemilk, L. v. AVhiteford, 1108, 1127. 
 Castleton v. Turner, 148, 160. 
 Cathcart v. Cathcart, 648. - 
 
 '/ V. L. Crosselays, 576. 
 
 " V. Dick's Reps., 487. 
 
 " V. Gordon, 741. 
 Cathie, 846. 
 Cato V. Irvina;, 243. 
 Catt Y. Howard, 609, 1164. 
 Cavalari, 88, 1116, 1123. 
 Chalmers, 718. 
 
 " V. Carruthers, 230. 
 
 // V. Chalmers, 14, 382, 882, 883. 
 
 V. L. Craigievar, 385, 395. 
 
 II V. Ciiningham, 1119. 
 
 '/ V. Douglas, 1156. 
 
 '/ V. Jackson, 927, 928. 
 
 n V. Monro, 1014. 
 
 Chancellor v. Gray, 769. 
 
 // V. Seltzer, 939. 
 
 Chanter v. Borthwick, 1040. 
 Chapelain v. Baillie, 817. 
 Chaplin v. Allan, 388, 391, 508. 
 Chajiman v. M'Bean, 471. 
 Charteris v. Charteris, 279. 
 Charters v. Barry, 525. 
 Chatto, 112, 1192. 
 Chatto V. Ord, 622. 
 
 n V. Pyper, 1155, 1169. 
 Cheap V. Amot, 257. 
 
 " V. Cordiner, 335. 
 
 '/ V. Mowat, 500. 
 
 '/ V. Philp, 133, 702. 
 Cheine v. Western Bank, 252. 
 Cheyn v. L. Rosehill, 567, 576. 
 Cheyne v. Keith, 386. 
 Cheisly v. Cheisly, 593. 
 Child V. Grace, 879. 
 Chisholm v. Chisholm, 549, 584. 
 
 " V. Stecdman, 274. 
 
 Chisman v. Count, 878. 
 Chri.stie, 865, 1005, 1041. 
 Christian v. Kennedy, 51, 88, 114, 1095. 
 Christie v. Adamson, 1181. 
 Christie'8 Daughters v. Christie, 368, 958. 
 
 Christie v. Hendersuu, 302, 311, 317, 820. 
 
 II V. Thomson, 42. 
 Christisons v. Kerr, 257. 
 Christmas v. Whinyates, 547. 
 Church V. Sharp, 611. 
 Church of England Fire and Life Assur- 
 ance Co. V. Hodges, 390, 392, 
 497. 508. 
 
 'I V. Wink, 513. 
 
 Clacknianan, Ij. t. L. Allardyce, 708. 
 Clackmannan v. Nisbet, 514. 
 Clapperton v. Hume, 705. 
 Clark, 1030, 1033. 
 
 /■/ V. Blairgounie, 434. 
 
 '/ V. Burns, 123. 
 
 '/ V. Callander, 369, 392, 509, 1126. 
 
 '/ V. Clark's Trs. 93, 94, 100, 114. 
 
 " V. Cuthbertson, 834. 
 
 " V. Dallas, 318. 
 
 " V. Glen, 385. 
 
 '/ V. Greig, 1005, 1028, 1030, 1038, 
 1058. 
 
 '/ V. Hay's Trs, 277. 
 
 " V. Hyndman, 921, 922, 925. 
 
 " V. Lamont, 507. 
 
 '/ V. Mitchell, 776, 800. 
 
 >r V. Mullich, 757. 
 
 '/ V. Ross, 389. 
 
 'I V. Scott, 169. 
 
 '/ V. Spence, 32, 62, 804, 853, 1086. 
 
 'I V. Stevenson, 827, 848. 
 
 // V. Thomson, 63, 106, 736. 
 Clarke's Trs. v. Hill, 701, 870, 873, 1149. 
 Clarkson v. Ball, 728. 
 Clarkson's Trs. v. Gibson, 312, 960. 
 Clayton v. L. Nugent, 149. 
 Cleilland v. Bonar, 402. 
 Cleland v. Baillie, 288. 
 
 II V. Clark, 733, 734, 737. 
 
 '/ V. Cleland, 650, 552, 554, 555, 
 556, 654, 656, 1183. 
 Cleland's Creditors, Ranking of, 88, 90, 
 
 1123. 
 Cleland v. Fleming, 1120, 1123. 
 
 II V. Mack, 26, 33. 
 
 II V. M'Lellan, 1179. 
 
 '/ V. AVeir, 65, 102. 
 Clerk V. Armstrong, 76. 
 
 // V. Brebner, 616, 753. 
 
 II V. DaUas, 317, 966, 968. 
 Clinan v. Cooke, 145. 
 Closmadeuc v. Carrell, 604. 
 Cloup V. Alexander, 223. 
 Clouston V. Morris, 1127, 1129. 
 Clunie v. Sterling, 65. 
 Clydesdale, 983. 
 
 Clydesdale, M. v. E. Dundonald, 165. 
 Clydesdale, L. v. Menzies' Crs., 768. 
 Clynne v. Johnstone, 757, 760. 
 Clyno V. Snody, 343. 
 Cobbett V. Hudson, 1003. 
 Cochrane v. Black, 524. 
 
 " L. Mary v. Col. Erakine, 617. 
 
 1 V. Ewart, 365.
 
 INDEX OF CASES. 
 
 xxxiu 
 
 Cochrane v. Ferguson, 804, 825, 320, 988, 
 955. 
 V. Ferrier, 750, 810. 
 
 . V. Lyle, 931. 
 
 I, V. Houston, 398, 399. 
 
 // V. Prentice, 304, 337. 
 
 '/ V. rrinj,'lc, 507, 571. 
 
 II V. Suiitli, 247. 
 
 Coclirancs v. ThonisDU, 508. 
 Cochrane v. Urquhart, 724. 
 
 V. Wallace, 42, 149, 109, 1120. 
 Cockburn, 1110. 
 
 n V. L. Craigiovar, 572, 589, 590. 
 
 V. Gibson, 429, 430. 
 
 II V. Hamilton, 384, 348. 
 
 // V. Johnston 051. 
 
 II V. Logan, 301. 
 
 Cogan V. Ebden, 40, 1007. 
 
 II V. Lyon, 1103. 
 Coldingham, L. v. Crosbie, 403. 
 Cole V. Sherard, 034, 703. 
 Colebrook v. Douglas, 901, 937. 
 Colegravo v. Mauby, 147. 
 Colemane's Case, 198. 
 Collett V. L. Keith, 853, 854. 
 Collie V. Pirie's Trs., 582, 583, 591, 592. 
 Collins, 981. 982. 
 
 II V. Blantern, 137. 
 
 '/ V. N. British Bank, 1090, 1097. 
 
 '/ V. Hamilton, 03. 
 Colquhoun v. Corbet, 125. 
 
 II V. Dumbarton Freeholders, 741 
 
 n V. M'Rae. 380. 
 
 II V. AVilson's Trs., 123, 506. 
 
 Colvil V. Haly, 745. 
 Comb V. M'Millan, 770. 
 Combe v. Hossack, 104, 870. 
 Commcllin. 1007, 1008. 
 Commercial Bank v. Hanna, 709. 
 
 n V. Kinnaird, 423, 484. 
 
 // V. Paton, 544. 
 
 II V. AVink, 513. 
 
 Common, 1140. 
 Common Seal v. Trail, 277. 
 Comrio v. Grogor, 577. 
 Conachar v. Conachar, 921, 923, 924. 
 Conacher v. Robertson, 819. 
 Condie v. Bnchan, 554. 
 
 // V. IM -Donald, 7. 
 
 " V. Peddie, 402. 
 
 'I V. Stewart, 13. 
 Connachcr, 835. 
 Connaway, 1192. 
 Connell v. Fairlie, 716, 728. 
 
 II V. Stalker, 250. 
 Connor, 640. 
 
 Constance v. Brain, 1026. 
 Cook V. Greenock Marino Ins. Co., 177. 
 
 // V. Jeffrey, 854, 855. 
 
 II V. M'Janct, 809. 
 Cooke V. Maxwell, 1008. 
 
 // V. AVilson, 034. 
 Cooper, James, and others, Petitioners, 714. 
 
 // V. Blick, 61. 
 
 Cooper V. His Creditora, 638. 
 
 '/ V. Donald, 3^4. 
 
 // V. Hamilton,348.872,911, 947,953. 
 
 '/ V. Mackenzie's Trs., 141. 
 
 '/ V. Mackintosh,35,42,95, 100, 1009. 
 Coote V. Boyd, 108. 
 
 // V. Bcrty, 28. 
 Cope V. Cope, 240. 
 Copland v. Bethuno, 1128, 1132. 
 Copley V. Dav, 000. 
 Corbett v. Douglas, 374, 379. 
 
 '/ V. Syme, 00. 
 
 II V. Vans, 293. 
 Corbets V. Love, 1130. 
 Corraack v. Anderson, 570. 
 
 II V. Heathcote, 1084, 1085. 
 Corrie v. Aitken, 259. 
 
 '/ V. Barbour, 542, 599. 
 Corsar v. Durie, 772. 
 Corse's Creditors v. Peddie, 286. 
 Corstorphine, Master of v. His Tenants, 
 
 282, 283. 
 Corry v. Bretton, 859. 
 Coult V. Angus, 418, 
 Coulton, 1017. 
 Coupar V. Ogilvy, 308. 
 
 // L. V. L. Pitsligo, 894. 
 
 II V. Leslie, 831, 832. 
 
 // V. Young, 698, 880, 883. 
 Coupland and Beattie, 998. 
 Couseland v. Cuthil, 92. 
 Cousin V. Gemmill, 758. 
 Couts V. Gouts, 002. 
 Coutts V. Straiten, 427, 428, 429, 468. 
 Cow V. Craig, 435, 519. 
 Cowan's Trs. v. Carstairs. 938. 
 Cowan V. M'Cormack, 924. 
 
 II V. Campbell, 68. 
 
 II V. Magistrates of Edinburgh, 23. 
 
 // V. Ramsay, 582, 583. 
 
 II V. Watt, 41, 538, 
 Cowie V. Farnie, 377. 
 
 // V. Fleming, 1005. 
 
 '/ V. HalsaU, 544. 
 Cowper V. Marquis of Bute, 1117. 
 Cox V. Comiller, 1173. 
 Crabb, 1027, 1033. 
 Craig V. Budge, 127, 405. 
 
 // V. Brock, 724. 
 
 // V. Collison, 434. 
 
 II V. Creighton, 903. 
 
 II V. Galloway, 275. 
 
 II V. Hill, 372, 856. 
 
 II V. M'Beath and Stevenson, 1197. 
 
 /' V. Marjoribanks, 34, 65, 113, 853, 
 1008, 1072, 1073. 
 
 " V. IMoncrieft", 520. 
 
 '/ V. Richardson, 438. 
 
 II V. Shiels, 259. 
 Craighall, L. v. Kinniumonth, 293. 
 Craigie V. Croll, 1112. 
 
 II V. Hoggan, 81, 819. 
 
 II V. Moodie, 1177. 
 
 '/ V. Scobie, 430, 483.
 
 XXXIV 
 
 INDEX OF CASES. 
 
 Cragievar'a Tntcirs v. Gray, 335. 
 Craigtbrtb, Lady r. Murray, 911. 
 Craigmiller, L. v. Chalmers, 127, 179,404. 
 Cranston v. Ker, 1129, 
 Cranstoun, Lord v. Cnnningliam, 1153 
 n V. Home, 371. 
 
 II v. Sw'inton, 773. 
 
 // Lord V. Tnrnbull, 757. 
 
 Craucour v. St George Steam Packet Co., 
 
 833, 895, 898, 905. 
 Craw V. Cnlbertson, 386. 
 Crawford, 1029. 
 
 II and Lindsay Peerage Case, 90, 
 
 91, 112,' 17G, 037,692,850. 
 V. Bennett, 138. 
 n V. Bovd, 963. 
 
 Lad/v. Campbell, 799, 800. 
 V. Crawford, 277, 519, 620. 
 II T. Haig, 305. 
 
 /' V. Kerr, 579. 
 
 II V. Lord Lamington, 789, 800. 
 
 // V. Menzies, 247. 
 
 T. M'Carter, 941. 
 V. Eobcrtson. 259, 266. 
 V. Royal Bank, 264. 
 II Earlof V. Ogilvie, 712. 
 
 II V. Simpson, 329, 335. 
 
 " V. Valleuce's Heirs, 570, 583. 
 
 II V. "Wood, 725. 
 
 Crawfurd's Children v. Crawfurd, 617. 
 Creightons v. Deans, 725. 
 Crichton. 478. 
 
 // V. Campbell, 952. 
 ,/ T. Crichton's Trs., 528, 1014. 
 II V. Fleming, 1057. 
 // V. Grierson, 419. 
 // V. Logan, 932, 934. 
 ,/ V. Maitland, 393. 
 // V. Symc, 390, 468. 
 V. Watt, 253. 
 Crisp V. Anderson. 604. 
 Crofts V Crofts, 833. 
 Croker v. Marquis of Hertford, 624. 
 Cromar v. D. Gordon, 929, 937. 
 Crombie v. M'Ewan, 723. 
 Crookenden v. Fuller, 624. 
 Crosbie v. Picken, 427, 428, 431. 
 
 // V. Shiell, 500. 
 Crossan, 101^. 
 Crowder, 186. 
 
 Crowther v. Solomons, 116, 604. 
 Cruikshank v. Cruikshank, 272, 277. 
 Crurnstane v. Cockburn, 1019. 
 Crutchy v. Mann, 601, 602. 
 Cubbison v. Cubbison, 538. 
 
 II V. Hyslop, 787. 
 Cuddie, 1032. 
 Cullen V. Anstruthcr, 378. 
 II V. Buchanan, 284. 
 // V. Ewing, 25. 34, 54, 1125. 
 II V. M'Lean, 374. 
 II V. Smoal, 293, 330, 339, 345, 350, 
 
 822, 874, 960. 
 n V. Stewart, 243. 
 
 Culku V. Thomson and Kerr, 805.* 
 // V. Thomsons, 436, 473, 706. 
 Cullen's Trs. v. Watson, 725, 726. 
 Cultcrallers v. Chapman, 428, 429. 
 Cuming v. Aberdeen Presbytery, 458. 
 // V. Andrew, 328. 
 // V. Cuming, 676. 
 II V. Kennedy, 538, 1177, 1179. 
 V. Marshalls, 397, 695, 900, 901. 
 V. SmoUet, 247. 
 Gumming, 84. 
 
 // V. Grant, 1106. 
 
 II V. Hendrie, 279. 
 
 Cumming's Trs. v. Simpson, 328. 335, 344. 
 Cuningham, 47, 480, 703, 811, 1029. 
 // V. Dunlop, 169. 
 
 V. L. Sempill, 432, 617, 702. 
 V. Chalraer, 1103. 
 Cuningliame v. Greenlees, 774. 
 
 // Lord V. Lord Cardross, 931 . 
 
 Cunningham v. Agnew, 251. 
 
 II V. Cunningham, 519. 
 
 // V. Duncan, 13. 
 
 // V. M-Gachen, 50. 
 
 // V. M'Leod, 724. 
 
 II V. Montgomery, 11. 
 
 V. Mowafs Trs., 548, 584. 
 ,1 V. Boss, 939. 
 
 // V. Piamsay, 475. 
 
 ;/ V. Spcnce, 439. 
 
 Cunninghame v. Brown, 1154. 
 Cuuningharae's Exrs. v. Hume, 276. 
 Cunninghamhead v. Town of Lanark, 532, 
 
 535. 
 Curling v. Eobertson, 670. 
 Curtis V. March, 634. 
 Currence v. Hackett, 473. 
 Currie v. Ford, 399. 
 II V. Glen, 927. 
 Currier v. Halliburton, 483, 697, 871. 
 Curror v. Dickson, 792. 
 Cuthbort, 651. 
 
 '/ V. Gumming, 150, 171, 177. 
 
 '/ v. Peacock, 168. 
 
 Cuthbort son v. Young, 41, 247. 
 Cuthill V. Burns, 408, 649. 
 // V. Monteith, 254. 
 
 Daes V. Scougall, 323. 
 
 Daincs v. Hartley, 1156. 
 
 Dale V. Dumbarton Glass Co., 629. 
 
 '/ V. Humfroy, 152, 173. • 
 Dalgleish v. Christie, 305. 
 
 // V. Scott, 715, 728. 
 
 Dalison v. Stark, 96. 
 Dalkeith, E. v. Book, 617. 
 Dallas V. Eraser, 125. 
 
 // V. Mackenzie, 308, 330. 
 
 II V. Mann, 52. 
 
 " V. Paul, 435, 527. 
 Dalling v. M'Kenzie, 931. 
 Dalryraple Cause, 439. 
 
 // V. L. Closeburn, 393. 
 
 // V. Dalrymple, 1 153.
 
 ].\1)KX OF CASES. 
 
 xxxv 
 
 Dalziel v. Liiulores, 300, :i:il, 870. 
 
 " V. D. Qnoonsbcrry'.s Ex., 4C, 05, 
 102, 049, G54, 050. 
 
 " V. Hicliiiioiid, 022. 
 Daniel v. Pitt, «72. 
 Darby v. Ou.scly, 0'J3. 
 Darling, 44. 837. 
 
 '/ V. Grievo, GO, 87. 
 Daruley v. Kirkwoo.l, 203, 204, 302, 311, 
 317, 320, 321, 840, 350, 823, 
 824, 917. 
 Dartmouth, Mayor of v. IIoulds\vorth,1082. 
 Daveron, 1027. 
 Davidson, 835, 1011, 1188. 
 
 '/ V. Aiknian, 135, 382. 
 
 " V. Maf?. of AnstnitlitT, 142. 155. 
 
 '/ V. Charteris, 430. 081. 
 
 " V. Davidson, 10, 242, 528. 
 
 " V. T. of Edinbuvgli, 124, 754. 
 
 " V. E. Fifo. 1107. 
 
 V. Gibb, Gil. 
 V. Hav, 340. 
 V. Heddell, 650. 
 
 " V. Kydc, 018. 
 
 V. Lyall, 701. 
 
 " V. M'Lcod. 707, 708. 
 
 '/ V. E. Middlcton, 1170. 
 
 // V. Eandal, 277. 
 
 " V. Robertson. 375. 
 
 V. Watson, 320. 
 
 ti and Francis, 752, 1107. 
 
 Davie v. Johnstone, 934. 
 Davies v. Lounde.s, 01. 
 
 // V. Miller, 859. 
 Davis V. Jones, 120, 13G. 
 
 // V. Williams, 509. 
 Dawson v. Mag. of Glasgow, 703. 
 Deacon's Case, 37. 
 Dear v. Knight, 1050. 
 Deas V. Town of Edinburgh, 143. 
 
 // V. Fullorton. 120. 
 Deans, 96, 409, 530, 750. 
 
 // V. Steel, 310, 332, 341. 
 Debeze v. Maun, 168. 
 Delamote v. Lane, 24. 
 De la Vega v. Viauna. 352. 
 Dempster, 639, 752, 837, 844, 997. 
 
 '/ & Co. v. Dryburgh, 54. 
 
 " V. Dundee Sea Box, 23. 
 
 '/ V. Willison, 425. 
 
 Denham v. Ogilvic, 25, 20, 33. 
 Denholm v. E. Balcarras, 1085. 
 Denniston v. Cumpbtdl, 500, 612. 
 
 H v. Thomson, 250. 
 
 Denny v. MacNish, 1003. 
 Donovan v. Cairns, 304, 308. 
 De Grosberg, 242. 
 Do Eeily, 1012. 
 Desborough v. Rawlins, 1082. 
 Deuchar v. Brown, 388. 
 Devaynes v. Robinson, 1000. 
 Devon Iron Co. v. E. Mansfield, 1126. 
 Dewar v. M'Gregor, 436. 
 Dick, 931. 
 
 ])i(tk v. Alton, 824. 
 '/ v. Gibson, 328. 
 '' v. Olipliant, 573. 
 Dick's Tr. v. Dick, 455. 
 Dickie v. Montgomery, 474. 
 Dickson v. AiKliison, 141, 710. 
 " v. Barbour, 141. 
 '/ v. Cunningham, 445, 706. 
 
 V. Dickson, 34, 277, 278. 369. 
 '/ v. Evans, 8. 
 '/ v. Humo, 507. 
 '/ V. Ker, 937. 
 n V. M'Aulay, 308, 325, 335, 340. 
 
 V. M'Kalla, 870, 030. 
 '/ V. Heir of Newlands, 652. 
 V. General Peel, 1070. 
 V. Ponton, 92, 100, 104, 409. 
 '/ V. Taylor, 609, 1171. 
 '/ V. Veitch, 773. 
 // V. Earl of Wilton, 1070. 
 '/ & Sons V. Dickson & Co., 20, 34. 
 Dicksons v. Goodall, 453, 707. 
 Dignan, 31. 
 Dimmach v. Tliomson and Firrastone, 421, 
 
 484. 
 Din V. Gillies, 428, 429. 
 Dingwall v. Gardner, 737. 
 Dinwoodie v. Johnstone, 486. 
 Dirlcton, Lord v. Lord Eastnisbet, 732. 
 Disbrow v. Macintosh, 752. 
 Disher v. Kidd, 487. 
 Dishingtoune, 560. 
 D'Israeli v. Jowett, 688. 
 Divine, 35. 
 Dixon V. Ilancond, 669. 
 
 II V. Monkland Canal Companv, 1161. 
 Dobbie v. Gaff, 87, 904. 
 
 II V. Johnston and Russell, 45, 46, 64, 
 93, 643, 646, 789, 10G6, 1067. 
 1124, 1125. 
 " V. Aberdeen Railway Co., 33, 1135. 
 " V. Richardson. 221. 
 II V. Stevenson, 698, 543. 
 Docherty, 1057. 
 Dodd v. Morris, 25. 
 Dodds V. Walker, 133. 
 Doe d. Allen v. Allen, 161. 
 " Beach v. E. Jersey, 157. 
 " Brown v. Brown, 147. 
 '/ Brune v. Rawlings, 817. 
 " Frvor v. Coombs, 603. 
 11 Gord v. Needs, 150, 161. 
 " Hulin v. Richards, 874. 
 " Oxenden v. Chichistor, 140, 157. 
 " Perkes v. Perkes, 547. 
 '/ Smith V. Galloway, 159. 
 " Thomas v. Bevnou, 154. 
 '/ Wcstlako V. Westlake. 148. 
 '/ AVintcr v. Perratt, 146, 
 Doc v. Bird. 823. 
 '/ V. Cartwriu'ht, 94. 
 " V. Cole, 113. 
 " V. Coombs, 116. 
 " V. GilVord, 113.
 
 XX XVI 
 
 INDEX OF CASES. 
 
 Doe V. Hurvey, 98. 
 
 '/ V. Hiscocks, 159, IGl, 162, 104. 
 » V. Perkins. 11G3, 1164. 
 // v. Randall. 91. 
 n V. Ross, 107, 113, 115, 116. 
 '/ V. Sisson, 24. 
 // V. Wliitefoot, 116. 
 '/ v. Whitehead, 8. 
 Doig V. Ker, 448. 
 
 Don T. Don, 797, 828, 858, 1168. 1171. 
 ,, Y. Lippnian, 267. 268, 304, 339, 351, 
 
 356. 508, 619, 628, 630, 631. 
 „ V. "Watt, 489. 
 Donald, 1042. 
 
 n V. Hart, 1072, 1106, 1107. 
 '/ V. Kircald}', 770. 
 Donaldson, 094, 1144. 
 " v. Buchan, 22. 
 
 ir V. Cunningham. 954, 957. 
 
 // V. Donaldson, 424. 
 
 n V. Ewing, 330. 
 
 // V narrower, 388, 392. 
 
 f, V. M'Donell, 252, 258. 
 
 n Y. Manchester Insnr. Co., 109. 
 
 // V. Murray, 314, 340, 473, 485. 
 
 // V. Ord. 616. 
 
 n V. Ste^Yart, 77, 452, 551, 1020, 
 
 1059. 
 ,/ V. Walker, 286, 470. 
 
 DonneU's, R., Case, 199. 
 Donellan's Case, 199. 
 Doud T. Simpson, 239. 
 Doner v. Maestaer, 608. 
 Dougal V. Hamilton, 1198. 
 
 „ V. Murdoch, 894, 897. 
 Dougall V. Dougall, 27, 1183. 
 
 // V. Gordon, 476. 
 Douglas, 848, 1057, 1120. 
 
 // Cause, 77, 191, 199, 240. 
 // V. Duke Argyle, 330, 348. 
 „ v. Bothwell, 283. 
 II V. Chalmers, 708. 
 // V. Chreslie, 702. 
 ,/ V. Christie, 432. 
 
 V. Clapperton, 389, 512, 514. 
 „ V. Dalrymple, 380. 
 ,1 V. Douglas' Trustees, 525. 
 „ V. Graham, 773, 981, 982. 
 ,/ V. Gricrson, 335, 348, 963. 
 II V. Hamilton, 3. 
 „ V. Lauder, 570, 577, 582. 
 „ V. LitHegill's Creditors, 439. 
 II V. Robin, 540. 
 „ V. Scott, 288. 
 
 V. Walker, 893, 897, 898. 
 II V. Wilson, 477. 
 n V. Young, 544. 
 ,/ Heron & Co. v. Alexander, 901, 
 
 937. 
 „ // V. Clark, 453. 
 
 „ " V. Grant's Trs., 309. 
 
 „ // V. Richardson, 304, 
 
 306, 337. 
 Pf.w. E.. 885. 
 
 Dow V. Dow, 546, 758, 760, 762, 767. 
 
 Dowd, 864. 
 
 Dowdy V. Graham, 385, 882. 
 
 Dowues V. Cassels, 4. 
 
 Downie v. Burgan & Co., 1054. 
 
 'I V. M'Killop, 572, 579. 
 Dreghorn, 994. 
 Drett V. Carser, 699. 
 Drew V. Drew, 933. 
 Dronnan v. Montgomery, 448. 
 Drum, L. v. Tenants of L. Lesmore, 910. 
 Drummoud, 1029. 
 
 II V. Alexander, 1005. 
 
 II V. Bisset, 386. 
 
 '/ V. Campbell, 421, 487, 570. 
 
 583, 584. 
 V. Crighton, 310, 311, 317, 
 320, 956. 
 " V. Drummond's Cred., 488. 
 
 // V. Gilmour, 972, 973. 
 
 /' V. Hunter, 112. 
 
 '/ V. Kerr, 725. 
 
 // V. Nicolson's Creditors, 134. 
 
 '/ V. Ross, 156. 
 
 // V. Stewart, 333, 
 
 // V. Swayne, 271. 
 
 r/ V. Thomson's Trs., 116, 759. 
 
 Drumquhassil v. L. Glenhegies, 910. 
 Drysdale v. Johnstone, 121, 125. 
 I, V. Ritchie, 590. 
 II V. Sornberg. 725. 
 II V. Wood, 824. 
 Du Barre v. Livette, 1093. 
 Du Bost V. Beresford, 36, 77. 
 Dudgeon v. Forbes, 1134. 
 Duff, 703. 
 
 II V. Boyd, 740. 
 n V. E. Biachan, 704. 
 (/ V. Falconer, 848. 
 n V. E. Fife. 437, 438, 495, 497. 558. 
 // V. Innes, 323, 564, 1130. 
 '/ V. Keith, 922. 
 Duffus V. Lawson & Mackay, 5, 369, 069. 
 n L. V. Monro, 910. 
 '/ V. Mag. of W^ick, 1182. 
 Duggan V. Wight, 379. 
 Duguid V. Mitchell, 649, 909, 911. 
 Duke V. Ferguson, 369. 
 Dumbarton Glass Co. v. Coatsworth, 127, 
 129. 
 II Mag. of V. Campbell, 787. 
 
 Dumblain, Bishop of v. Kinloch, 246. 
 Dumfries, Presbytery of, 1110. 
 Dunbar v. Pres. of Auchterarder, 1179. 
 It Mag. of V. Heritors of Dunbar, 23, 
 
 169, 170, 171. 
 n V. Harvie, 688, 695, 748, 749. 
 n V. Innes, 399, 448. 
 II Mag. of V. Kellv, 170. 
 II V. M'Dowall, 425. 
 // V. E. Morton, 759. 
 
 V. Stoddart, 52. 
 II V. Vassals of Muchrorae. 527. 
 Duncan, 829, 840.
 
 INDEX OF CASES. 
 
 XXXVll 
 
 Duncan v. Ainott, 7.'37,' 7(J4. 
 II V. Bulbirnie, 08. 
 
 V. Barron, 501. 
 » V. BriK'o, 450. 
 
 V. L. Clerk Register, 811. 
 » V. Chile Trustees, 37G. 
 
 V. Dun, 243. 
 '/ V. Finlatcr, 1125. 
 
 V. lM.rl.es, 824, 870, 873, 931, 937. 
 /' V. Ilii.iiislcy, 840. 
 '/ V. Kordanz, 1110. 
 " V. Scrinigeonr, 447, 451. 
 V. Thomson, 1021, 1022. 
 '/ anil Breeliin, 998. 
 Dunfermline, K. v. ("allender, 476, 1077. 
 Dundas v. Aitken. 787. 
 V. Belch, 853. 
 
 and Robertson v. Belch, 8G9, 1117. 
 V. Dundas, 237, 618, 019. 
 '/ V. His Fatlier's Exrs., 478. 
 " V. Holl.orn, 402. 
 » V. Lewis, 478, 495. 
 » V. Smith, 259. 
 II V. Symington, 745. 
 Dundee Mas. and Seamen v. Wedderburn, 
 169. 
 '/ Pcrtli and Aberdeen Railway Co. 
 
 V. Kicliardson, 520. 
 » Provost and Magistrates of v. 
 Morris, 144, 471. 
 Duulop's Trs. v. Belhaveu, 805, 818. 
 Dunlop V. Buclianan. 42. 
 
 '/ V. Deputy-Clerk Register, 755. 
 » V. Dunlop, 472, 474. 
 » V. Lambert, 148. 
 // V. Nicolsou, 727. 
 // V. Reid, 259, 260, 830. 
 Dunmore v. Lutfort, 746. 
 
 1/ Coal Co. V. Young, 389, 511, 
 
 512, 514. 
 Dun V. Craig, 727. 
 Dunn V. Dunn, 910. 
 Dunns v. Livingstone, 824. 
 Dunse, Feuars of v. Hay, 23, 248. 
 
 // Presbytery, 1105. 
 Durham, 1003, 1110. 
 
 // V. Mair, 27, 1021. 
 Durie v. Coutts. 408. 
 
 II Lord V. (4ibson, 449, 458, 471, 474. 
 Dury V. Dury, 425, 455. 
 Durward v. Wilson, 259. 
 Dyco V. Lord James Hay, 247. 
 
 u V. Patcrson, 474, 483, 538, 871, 943, 
 977. 
 Dye V. Reid, 805, 854. 
 Dykes, 641, 1141. 
 II V. Hill, 937. 
 
 Earl T. Vas3, 1069, 1071, 1072, 1073. 
 
 Earle v. Picken, 884. 
 
 East Lotliian Bank v. Turnbull, 465. 
 
 Easton v. Johnstone, 319, 931. 
 
 Eccles v. Ecclcs, 935. 
 
 Eddie v. Monklauds Rail. Co., 337, 339. 
 
 Edeu V. Blake, 130. 
 Edgar v. Darling. 920. 
 
 // T. Ewing, 958. 
 Edge v. Salisbury. 100. 
 Edinburgh, Mag. of v. Howart, 703. 
 
 " II Mackav and Co. v. 
 
 Bond, 976. 
 
 " u v. Warrender, 1149. 
 
 " Slinisters of v. The Magis- 
 
 trates, 788, 795. 
 Proc.-Fisc. of V. Campbell. 920. 
 
 " II V. Murray, '.)20. 
 
 '/ '/ V. "Wilson, 920. 
 
 " Senatus Academicus of v. The 
 
 Magistrates, 170. 
 
 // Town of V. Lothian, 851. 
 
 " Leith, and Hull Shipping Co. 
 
 V. Ogilvie, 92, 695, 808. 
 
 " and Glasgow Bank v. Samson, 
 
 541, 542, 602. 
 
 '/ and Glasgow Bank v. Simp- 
 
 son. 484. 
 
 » Roval Infirmary of v. Lord 
 
 Advocate, 631, 532. 
 Edmiston, 710. 
 
 '/ V. Sime, 449. 
 
 Edmond, 865. 866, 808. 
 
 // V. Grant, 137, 138, 256. 
 
 '/ V. Main, 69. 
 Edmonston v. Bruce, 129, 372, 509. 
 Edmonstone v. Bryson, 179. 
 
 '/ V. Edmonstone, 444. 
 
 '/ v. Hamilton, 856. 
 
 // V. Lang, 390, 496. 
 
 // V. Webb, 75. 
 
 '/ Lord V. Lord Woolmet, 447. 
 
 Edmunds v. Newman, 823. 
 Edward v. Fyfe, 265, 574. 
 Edwards, 57. 
 
 II V. Begbie, 42. 
 
 // V. Crock, 78. 
 
 // V. Mackintosh, 1068, 1069, 1072, 
 
 1090. 1156. 
 Eglinton, E. v. Countess, 857. 
 
 II E. V. Durham, 558. 502. 
 
 // V. Montgomery, 532. 
 
 Elder, 835. 
 
 // V. Gray, 349. 
 
 // V. Hamilton, 334. 
 
 II V. Jack, 1053. 
 
 II V. Marshall, 488. 
 
 II or Smith, 81, lOll, 1104. 
 
 " V. Young, 704. 
 Elgin, Mag. of v. Robertson, 220, 247. 
 
 II Pres. of V. Mag. of Elgin, 171. 
 Elibank, Lord v. Hamilton. 380, 381. 
 Elics V. Inglistoun. 144. 568. 
 
 '/ V. "Watson, 851, 942. 
 Elkin V. Jansen. 7, 13. 
 Ellias V. Cass, 575. 
 Ellies V. Elliot. 470. 
 Elliot V. Elliot, itlO, 911. 
 
 " V. Faulkc, 450. 
 
 '/ V. Nicolson. 1006.
 
 XXX VI 11 
 
 INDEX OF CASES. 
 
 Elliot V. NorthuinbiTland Glass Co., 822. 
 
 " V. Scott, 824, 894, 897. 
 
 >' V. Lord Stair's Trs., 166. 
 Elliots V. Ainslie, 926. 
 
 » V. Kiddle, 435, 458. 
 Ellis V. Eraser, 824. 
 " V. Haig, 120. 
 i> V. Duke of Hamilton, 1021. 
 // V. White, 345. 
 Ellison V. Cookson, 168. 
 Elmslie v. Alexander, 86, 690, 799, 853, 
 872, 1048, 1049, 1117, 1200. 
 Elphinston v. KoUo, 614. 
 
 " V. Salton, 774. 
 
 Eliabinstone v. Lord Cranstoim, 449. 
 
 " V. f^Ipliinstonc, 920. 
 
 V. Home, 942. 
 Elphinstoun v. E. of Lothian, 1162. 
 Eirick"s Trs. v. Duif, 823. 
 Elsara V. Faucett, 28, 78. 
 Elton V. Larkins, 823. 
 P^merson v. Blonden, 873. 
 Errol, Lady v. Cruickshanks, 281, 282, 283. 
 Erskine v. Erskine. 519, 528, 608, 724, 
 1013, 1014. 
 V. Hamilton, 403. 
 
 " V. Earl of Kincardine, 1141. 
 
 " V. Ramsay, 614. 
 
 " V. Ronton, 745. 
 
 " V. Robertson, 1039. 
 V. Smith, 1005. 
 
 '/ V. Steven, 228. 
 Ettles V. Robertson, 305, 309. 
 Eustace v. Pringle, 254, 256. 
 Evans v. Beattic, 873, 874. 
 
 " V. Bircli, 6. 
 
 II V. I'^vans, 1184. 
 
 '/ V. Getting, 693. 
 Everingham v. Roundell, 91, 116. 
 Ewart V. Murray, 324, 331. 
 Ewen V. Ewen's Trs., 419. 
 Ewing V. Burns, 23. 
 
 II V. Crichton, 77, 114, 804, 823, 873. 
 
 " V. Culleii, 65. 
 
 " V. Gumming, 306. 
 
 '/ V. Dundas, 959, 960, 962. 
 
 " V. M'Eachen, 919, 921. 
 
 // V. Earl of Mar, 68, 81, 88, 1132. 
 
 II V. Semple, 448. 
 
 '/ V. Earl of Strathmore, 285, 286. 
 Ewing's Trs. v. Farquharson, 50. 
 Eyre v. Lamby, 857. 
 
 Fagan v. M'Kenzie, 1006, 1038, 1039. 
 Fair v. Cranston. 421, 487. 
 Fairholm v. Fairholm'a Trs., 223, 231, 
 1113. 
 
 " V. Livingston, 323. 
 
 Fairlie, 1035. 
 
 // V. Brown, 488. 
 
 " V. Denton, 877. 
 
 '/ V. Fairlie, 580. 
 
 " V. Hastings, 873, 874. 
 Fairly v. Dick's Crs., 279, 514, 579, 582. 
 
 Fairly v. O-lIallerau and Brown, 42. 
 Fairiicy v. L. Melville, 178, 918, 934. 
 Fairweather, 1188. 
 
 " V. Alison, 543. 
 
 Falahill, Adjudgers of v. Cunningham, 737 
 Falconer v. Arbutlmott, 427, 431, 430, 440 
 '/ V. Beattie's Heirs, 614. 
 
 '/ V. Falconer, 167, 499, 500. 
 
 " V. Kinuoar, 1177, 1179. 
 
 " V. Lawson, 169. 
 
 '/ Lord V. Taylor, 169. 
 
 I' V. Stephen, 548, 586, 771, 776, 
 779, 804, 805, 853, 854, 870. 
 Falconers v. Smith. 722, 725. 
 Fall V. Sawers, 1023. 
 Farie v. Drummond, 708. 
 Farmers v. Myles, 443, 554. 
 Farquhar, 988, 989. 
 
 " V. Lyon, 744. 
 
 // V. Shaw, 138, 256, 576. 
 
 '/ V. Sloane, 261, 260, 870, 871. 
 
 // V. Wallace, 394. 
 
 Farquhar's Trs. v. Stewart, 272. 
 Farquharson V. Anderson. 1014, 1019, 1020 
 1057. 
 
 " V. Lord Advocate, 331. 
 
 Farqnharson's Trs. v. Stewart, 278. 
 Farr v. Price, 612. 
 Farrar v. Johnstone, 354. 
 
 '/ v. Leitli Banking Co., 355, 350. 
 Farries v. Smith, 433, 702. 
 Faulks v. Park, 68. 
 Fea V. Elphinston, 890. 
 Fell V. Lyon, 266. 
 Fenton, Lord v. Drummond, 954, 957. 
 
 " V. Currie, 52. 
 
 '/ V. Livingstone, 623. 
 
 // V. Skinner, 277, 278. 
 Fen wick v. Brinkworth, 120. 
 Fergus v. Fergus, 144. 
 Ferguson, 59, 718, 724, 837. 
 
 '/ and Others, 1043. 
 
 V. Bethune, 309, 313, 315, 873. 
 
 '/ V. Blair, 487. 
 
 '/ V. Bnrnet. 425. 
 
 « V. King, 124. 
 
 '/ V. M'Gachan, 54. 
 
 II V. Macpher.son, 468. 
 
 ,f V. Mair, 328. 
 
 V. Maitland, 942. 
 
 // V. Marjoribanks, 615. 
 
 // V. Ofiicers of State, 242. 
 
 // V. Paterson, 364. 
 
 V. Skirving, 170, 657, 677, 691, 
 1179. 
 
 '/ V. Young, 285, 280, 287. 
 
 Ferguson's Executors v. Campbell, 394. 
 Ferrie v. Ewing, 370, 371. 
 
 // V. Ferrie's Trs., 433, 469, 497, 702. 
 
 II V. Mathie, 261, 264. 
 Ferrierv. Berry, 776, 780, 1127. 
 
 II V. Earl Errol, 305, 337, 350. 
 
 '/ V. Graham, 929, 944. 
 
 '/ V. Morehead, 380.
 
 INDEX OF CASES. 
 
 XWIX 
 
 Ferrier v. Young, 7')o. 
 Fettes V. Gordon. 'Z'lU. 
 Ficl.l V. Selciin, 174. 
 Fife Bank v. Tlioiusou's Trustees, 4GG. 
 '/ V. Daw, 'JG8. 
 // V. Duff, oOU. 
 
 // Earl V. K. Fife's Tr.'^., 40, 41. 42, 87, 
 107, 108, 4'J7, 43(5, 442, 443, 
 GOO, Gl'J, 552. 555, 562, 656, 
 807, 808, 860. 1044, 1118, 
 1128, 1137, 1152, 1165. 
 '/ V. Fife, 225. 227. 
 // Y- Inues, 344, 070. 
 // Earl V. l^irrie, 787. 
 Fife's Trustees, Jiarl of v. Duncan, 123. 
 Fife V. Wooiliuan, 244, 245. 
 Fimster v. Milne, 145. 
 Fiucham v. Wuirliead, 319, 967. 
 Findlater, 984. 
 Finlay v. Currie, 375, 521, 527. 
 
 " V. Outram, 927. 
 Finlayson v. Finlayson, 812. 
 
 " V. Gown, 329. 
 
 " V. Lauder's Executors, 394. 
 
 " V. Lookup, 1118. 
 
 " V. Mackenzie, 1182. 
 
 " V. Murray, 266, 870, 871. 
 
 Finncrty v. Tipper, 36. 
 Fisher v. Bontine, 796, 797, 800, 1080. 
 
 " V. Campbells, 507. 
 
 " V. Fislier, 696. 
 
 " V. Izataray, 1103. 
 
 " V. Litligow. 951. 
 
 " V. Mel son, 771. 
 
 // V. Ronalds, 1171. 
 
 '/ V. Smith, 548, 586, 762. 
 
 // V. Ure, 334. 
 Fitch V. Jones, 15. 
 
 Fithie's Ciiildreu v. Earl Northesk, 574. 
 Fitz V. Rabbits, 115. 
 Fitzimmons v. Linton, 998. 
 Fleming v. Corbet, 137, 361, 363. 
 
 " V. Fleming, 124. 
 
 " V. Gibson, 277. 
 
 // V. M'Intosh, 772. 
 
 r/ V. Newton, 659. 
 
 '/ V. Robertson. 601. 
 
 f, V. Scott, 489, 540. 
 
 f> V. Simpson, 922. 
 
 '/ V. Wilson, 520. 
 Fletcher, 449, 1017. 
 
 // V. Watson, 648. 
 Flint V. Alexander, 285. 
 Flockhart v. Lawson, 156. 
 Florence v. Florence, 148. 
 Foggo V. Craise, 65. 
 
 // v. Hill, 376, 395, 515, 792, 856. 
 Folkes T. Chadd, 38. 
 Folley V. Douglas, 237, 904, 906. 
 Forbes, 31. 
 
 Forbes' Exrs. v. AVestern Bank, 376, 430. 
 Forbes v. Forbes, 111. 
 
 V. Magistrates of Aberdeen, 44, 45, 
 643. 
 
 Forbes v. Alison, 370. 
 
 " V. Craigie's Crs., 318, 967. 
 
 " V. Lady Cullodeu, 648, 585, 586, 
 779. 
 
 " V. Lord Duflus, 927. 
 
 " V. Edinburgh Assurance Co., 06. 
 
 '/ V. Fonm-rean, 252. 
 
 '/ V. Forbes' Crs., 941, 943, 949, 903. 
 
 " V. Gordon. 593. 
 
 " V. Hudson, 695. 
 
 '/ Lord V. Marquis of Huntley, 471. 
 
 // Lord V. Leys, 1174. 
 
 " V. Kirk, 33", 34, 54, GO, 157. 
 
 " V. Milne, 882. 
 
 " V. Morrison, 4, 691, 935. 
 
 " V. L. Pitsligo, 891, 935 
 
 » V. Reid, 442, 553. 
 
 '/ V. Renton. 519. 
 
 // V. Shaw, 964. 
 
 II V. Sinclair, 546. 
 
 // V. Smith, 1127. 
 
 '/ V. Lady Udnv, 1014. 
 
 '/ V. Ure, 790, 791. 
 Forbes' Trustees v. A\'ulsh, 767, 773. 
 Forbes v. Watson, 723. 
 Ford V. His Creditors. 925. 
 Fordel v. Caribber, 138, 577. 
 Fordyce v. Cockburn, 618. 
 
 II V. Fordyce, 479, 519. 
 Forfar, Brovost of v. Cutlibert, 652. 
 Forgie v. Henderson, 1165. 
 Forlong v. Taylor's Executors, 155. 
 Forrest, 817. 
 
 '/ V. Carstairs' Representatives, 274, 
 328, 329, 348. 
 
 // V. Marshall, 428, 429. 
 
 " V. Thomson, 543. 
 
 '/ V. Veitch, 438. 
 Forrester v. Boucher, 225, 228. 
 
 " L. V. L. Elphinstone, 318, 9G8. 
 
 II V. Forrester, 767, 1053. 
 
 II V. Merston, 893, 895, 896, 897. 
 
 Forstcr v. Forstor, 1 184. 
 Forsyth v. Kilpatrick. 242. 
 
 // V. Simpson, 329. 
 Forteith v. E. Fife, 27, 79, 96, 1090, 1091. 
 Forth Marine Insur. Co. v. Burnes, 874. 
 Fortoun v. She wan, 614. 
 Fortrose Election, 1168. 
 Fortune v. Luke, 252. 
 Fotheringham v. Hunter, 371, 1126. 
 
 II V. Mould, 948. 
 
 // V. Watson, 386. 
 
 Foulds V. Meldrum, 977. 
 Foulis, L. V. L. Lovat, 121, 384. 
 Foulkes V. Seilway, 26. 
 Fowler v. Maoartnev, 141. 
 
 II V. Paul, 102, 753, 1155. 
 Francis v. Grover, 471. 
 Frank v. Foster. 321. 
 
 '/ V. Frank. 444. 550, 554. 
 Eraser, 92, 194, 409, 648, 718, 730, 734, 1 194 
 " V. Lord .\dvocate, 593. 
 " V. Baruetson, 727.
 
 xl 
 
 INDEX OF CASES. 
 
 Frascr v, Bruce, 5, 269, 385, 608, 699. 
 
 '/ V. Davies, 758, 773. 
 
 " V. Duubar, 796. 
 
 " V. Eraser, 533, 728, 742, 762, 939, 
 948. 
 
 '/ Y. Hair, 6. 
 
 n V. Hill. 854, 856. 
 
 /' V. Hopkins, 669. 
 
 " V. Laug, 797, 798. 
 
 '/ v. Lookup, 620. 
 
 // V. Lord Lovat, 482, 794, 796, 1020, 
 1024. 
 
 „ V. IMackav, 824, 880. 
 
 ,/ V. M-Gowan, 275, 278. 
 
 „ V. M'Keitcli, 328, 329. 
 
 // v. Maitlaud, 651, 1183. 
 
 n V. NichoU, 801, 803, 1097. 
 
 II V. Sandeman, 806. 
 
 II V. Thomson, 558. 
 
 ,1 V. Ur.phart, 304, 308, 394. 
 
 // V. AVilliamson, 370. 
 
 ,/ V. Wilson, 74, 560, 565, 856. 
 
 ,/ & Wright, 560. 
 Fraserburgh, Town of v. L. Saltoun, 1107. 
 Freere v. Peacocke, 21. 
 French v. Cathcart, 399. 
 
 ,/ V. Patton, 608. 
 
 I, V. Earl of Wemyss, 228, 231 . 
 Frendraught, L. y. L. Banff, 774. 
 Friend y. Skelton, 27, 33. 
 Frier y. Richardson, 259. 
 
 // Y. Patersou, 333. 
 Frisell y. Thomson, 752. 
 Fullerton, 1026. 
 
 // Y. Town of Dumbarton, 791, 796. 
 
 Fulton, 222, 843. 
 
 II Y. Johnstone, 364. 
 II Y. M'Alister, 711. 
 Fumertoun y. Lutefoot, 772. 
 Furneaux y. Hutchins, 24. 
 Furness v. Cope, 74, 695, 808. 
 Fyfe Y. Bean, 486. 
 
 II V. Carfrae, 317. 
 
 II Y. Kedslie. 273. 
 
 ,1 Y. Miller, 341, 346, 859, 872. 
 
 Gadgirth, L. y. L. Auchinleck, 1118. 
 Gadgeard, L. v. Sheriff of Ayr, 921. 
 Gainer v. Cuninghame, 618. 
 Gairdner y. Brown, 367. 
 Gairs Y. Taylor, 324, 331. 
 Galbraith v. Cunningham, 614, 631. 
 
 II V. Edin. & Glasgow Bank, 425, 
 
 446, 459. 
 n V. Graliam, 166. 
 
 // Y. Galbraith, 184. 
 
 Y. M'Neil, 928. 
 II Y. Narden, 6. 
 
 Gale Y. Dumbarton Glass Co., 373. 
 
 II Y. "Williamson, 145. 
 Gall Y. Bird, 20, 529. 
 // Y. BoYil. 521. 
 // Y. Evist, 968. 
 // Y. Fordyce, 612, 883. 
 
 Gall V. Watt, 108. 
 Gallic Y. Mackenzie, 277. 
 GallowaY, 982, 1044. 
 
 // Y. Burgh of Dumbarton, 705, 710 
 
 ,/ Y. Galloway, 329, 340, 435. 
 
 '/ Y. Gilmer, 1177. 
 
 " E. Y. Gordon, 727. 
 
 /, Y. Grant, 1125. 
 
 E. Y. Maxwell, 910. 
 // E. Y. Telziefer, 919. 
 
 II Y. Thomson, 429. 
 
 Gait Y. Boyd, 276. 
 Garden v. Chalmers, 395. 
 ,/ Y. Pilmore, 578, 582. 
 // V. RamsaY, 354. 
 // V. Rigg, 307. 
 Gardner, 58. 
 
 Peerage Case, 236, 237, 539, 240, 
 241. 
 // Y. Mag. of Kilrenny, 1131. 
 // V. M'Kenzie, 67. 
 ,/ Y. MarshaU, 27. 
 
 V. Reekie, 93, 112, 687, 692. 
 Garioch y. Forbes, 504. 
 Garland y. Stewart, 227. 
 Garnock y. Wilson, 286. 
 Garth y. Howard, 873. 
 Gavin y. Montgomerie, 795, 858, 1005, 
 
 1038, 1040, 1079, 1084. 
 Gaw V. Weems, 558. 
 Gay wood, 810. 
 
 // Y. M'Keand, 445, 534. 
 
 Geary y. Physic, 1123. 
 Geehin v. Cochrane, 1 014. 
 Geddes v. Geddes, 242. 
 ,/ Y. Parkhill, 1020. 
 „ Y. AVallace, 129, 404. 
 Geddy v. Telfer, 519. 
 Geekie y. Proctor, 1137, 1140. 
 Geikie y. Hutchison, 759. 
 Geils Y. Geils, 1120, 1121, 1122, 1154. 
 Gellatley y. Jones, 19, 253, 559, 562, 874. 
 George v. Scott, 877. 
 Ghose Y. Manickehund, 176. 
 Gib Y. Walker, 388, 391. 
 Gibb, 988. 
 
 II and Others, 718. 
 II Y. Livingstone, 158. 
 II V. Ogg, 501. 
 „ Y. Wathen, 23, 1152, 1155. 
 // Y. Winning, 128, 178, 952. 
 Gibson, 21, 1144, 114J5. 
 // v. Adinston, 742. 
 // Y. Anderson, 95, 100. 
 // v. Ewan, 1162. 
 II Y. Howie, 371. 
 II v. Huttons, 527. 
 II v. Kennedy, 554, 856. 
 II v. Pollock, 1158. 
 ,/ Y. Scott, 403. 
 /, v. Small, 174. 
 ,/ v. Stevenson, 1063, 1068, 1155, 
 
 1167. 
 /, X. Walker, 534.
 
 INDEX OF CASES. 
 
 xli 
 
 Gibsons v. Marr, 20, 63, 822, 1004. 
 Gifford V. Kciniio, '.)3;}, 'J51. 
 Gilchrist, 840. 
 
 11 V. BalloehiU'V Railway, 15. 
 // V. Murray, 310, 907. 
 // V. Wliickrr, 12. 
 Giles V. Jones, 148. 
 
 Gillespie v. Donaldsnn'.s Trus., IGO, 473, 
 474. 403. 
 // and Mills, 045. 
 // V. Mocin, 139. 
 Gilfillan v. Brown, 927. 
 Gillies, 58. 
 
 '/ V. Murray, 724. 
 Gillott V. Oftbr, 121. 
 Gilmour, 1144. 
 
 « V. Stewart's Reps., 931, 973. 
 Girdwood v. Campbell, 23, 109, 170. 
 
 V. Wilson, 510. 
 Glasgow, Airdrie & Monkland Junction 
 Railway Co. v. Drew, 125. 
 II E. V. Hamilton, 4. 
 » Com. of V. Ninimo, 551, 554. 
 " Hammermen v. Crawford, 700. 
 " Ho.spital V. Campbell. 403. 
 II Mag. of V. Daw.son, 1131. 
 « Royal lutiruiary v. Caldwell, 385. 
 // Tailors v. Blaikie, 403. 
 Glass V. Christison, 1000. 
 II V. M'Intosb. 480. 
 <, V. Stuarts, 110, 701. 
 Glegg V. Lew, 002, 1152. 
 Glen, 1008, 1030. 
 '/ V. Binnie, 137. 
 // V. Black, 723. 
 ,1 V. National Bank, 258. 
 Glenbervie, Mag. of. 1129. 
 Glendinings v. Earlson, 228. 
 Glendinniug v. Brown, 1030. 
 II V. Glendinning, 480. 
 
 tt V. E. Nitbsdale, 1118. 
 
 // V. Wyllie, 507, 572, 594. 
 
 Gloug V. Mackintosh, 322. 
 Glyuv. Johnstone, 88, 208, 030, 803, 974, 
 
 975 1100, 1117, 1123. 
 Gobbi V. Lazzaroni, 331, 337, 339. 
 Goblet V. Beechy, 149, 153. 
 Goddart v. Briti.sh Linen Company, 871. 
 Godfray v. M'Aulay, 038. 
 Goldie, 1005. 
 
 " V. Aitken, 591. 
 II V. Poldean'a Crs.. 280. 
 Gollan V. Gollan, 534, 530, 1199, 1208. 
 Goodal V. Newton, 347. 
 Gooden v. Murray, 890, 1000. 
 Goodfellow V. Madder, 255, 828. 
 Goodicr v. Lake, 110. 
 Goodinge v. Goodinge, 148, 100. 
 Goodlet Campbell v. Lennox, 389, 601. 
 Goodright, 32. 
 
 » V. Glazier, 550. 
 
 // V. I\ross, 240. 
 
 Goodtitle v. Soutlurn, 159. 
 Goodwin, 094, 840, 1191. 
 
 Goodwin v. Maclean, 098. 
 Goom V. Ailalo, 107. 
 Gordon, 770, 842. 
 
 /' Lord G.'h CiLse, 80. 
 
 " V. , 730, 742, 897. 
 
 " V. Anderson, 141, 172, 493, 494, 
 503. 
 
 " V. Bogle, 304, 308. 
 
 '/ V. Brodii', 707, 708. 
 
 '/ V. Campbell, 20, 828, 829, 830, 921 
 
 " V. Carmichael, 501. 
 
 y V. Chri.stie, 952. 
 
 » V. Cruickshanks, 920. 
 
 " V. Cusigne, 902, 907, 909. 
 
 " V. Dewar, 572. 
 V. Dunnet, 942. 
 
 " V. Fan|uhar, 520. 
 
 » V. E. Fife, 538, 707. 
 
 " V. Forbes, 725, 745, 746. 
 
 » V. Glen, 141, 915. 
 
 " L. V. Glendonwvn, 398. 
 
 » D. V. Lady H. Gordon. 1119. 
 
 '/ V. Gordon, 893, 921, 940, 972. 
 
 '/ V.Grant, 1120. 1121. 
 
 " V. Gray, 709, 772, 773, 774. 
 
 " V. Junes, 334. 
 
 " V. Johnstone, 279. 
 
 » V. Lcarmonth, 279. 
 
 '/ V. Lyle, 523. 
 
 II V. Macculloch, 589. 
 
 " V. M'Ghie, 280. 
 
 " V. M'Intosh, 393. 480, 496. 
 
 '/ V. M'Pherson. 490. 
 
 " V. Maitlaud, 270, 593. 
 
 " V. Marjoribanks, 143, 144. 
 
 " V. Maxwell, 401, 403. 051. 
 
 II V. ]\riller, 92, 848. 
 
 1 V. Montfith, 481. 
 
 '/ V. Murray, 380, 436, 448, 473, 706. 
 
 " V. Nielson. 1104. 
 
 '/ V. Orrock. 1127, 1134. 1136. 
 
 " Peerage Case, 235. 
 
 '/ V. Pratt, 250, 258. 955, 965, 972. 
 
 'I V. Lord Pitsligo, 500, 512. 
 
 " V. Robertson, 141, 172. 
 
 * V. Ross, 476. 
 
 " V. Sinclair, 877. 
 
 « V. Sloss, 541. 
 
 " V. Stewart, 850. 
 
 '/ V. Sutherland. 490, 541. 
 
 '/ V. Suttie, 815. 
 
 // V. Thomson. 172. 
 
 // V. Trotter. 120, 178, 785. 
 Gordon's Tr. v. Williamson, 120. 
 
 // Tutors, 891, 935. 
 Gordon v. Worlie, 279. 
 Gormock. L. v. the Lady, 433. 434, 702. 
 Gorrison v. Pirrin, 150, 175. 
 Gourlay v. Urquhurt, 274. 
 Govan v. Boyd. 017. 
 Gow V. Craig, 500. 
 
 " V. M'Donald, 930, 951. 
 Gowans v. Thom.son, 894, 895. 897. 
 Gowan's Trs. v.Carstairs, 132, 360,500, 507.
 
 xlii 
 
 INDEX OF CASES. 
 
 Graham, lOOG. 
 
 " V. Cochrane. 300, 870. 
 V. Corhet. 509, 518. 
 Grahams v. Ferguson, 927. 
 Graham v. Gillespie, 542. 
 Graham v. Gordon, 609, 611. 
 " V. Gowans, 501. 
 
 V. Graham, 758, 770. 772, 778, 
 775, 780, 789, 809. 
 • V. Hope, 638. 
 " V. Johnstone, 555. 
 
 V. Jolly, 525. 
 II V. Kennedy, 960. 
 " V. Earl of Leven, 330. 
 " V. Loch, 1164. 
 II V. Logie, 910. 
 " V. Macalpine, 816. 
 
 V. M'Lachlan, 39, 51, 52. 
 V. M'Leod, 429. 
 '/ V. Maxwell, 652. 
 '/ V. Marquis of Montrose, 440. 
 V. Newlands, 1066. 
 V. Ogilvv, 247. 
 '/ V. Orr, 499. 
 // V. Pate, 322. 
 
 V. Sprott, 796, 797. 
 V. Stirling, 932, 933. 
 // V. Tours, 932, 933. 
 V. Veitch, 399, 400. 
 '/ V. Westenra, 102. 
 » V. Writers to the Signet, 248. 
 Graham's Creditors v. Grierson, 452. 
 II Trustee v. Hislop, 707. 
 
 // Trustee v. White, 1164. 
 
 Granger v. Geils, 132. 
 Grant, 44, 462, 641, 730, 839, 1017, 1141. 
 // and Others, 35. 43, 67. 
 " V. Anderson, 300. 
 // V. Baillie, 520. 
 " V. Cruickshanks, 487. 
 '/ V. Grant, 124, 449, 500, 1089, 1121. 
 " V. Grant's Crs., 318, 943, 967. 
 « V. Jackson, 869. 
 " V. Johnston, 512, 515, 695. 
 " V. Kerr, 451. 
 II V. M 'Donald, 389, 601. 
 '/ V. M'Gregor, 973. 
 // V. M'Lean, 282, 283. 
 II V. Maddox, 150. 
 " V. Marshall, 918. 
 // V. Murdoch, 522, 530. 
 '/ V. Mennons, l."7. 
 II V. Iiichardson, 504. 
 » V. Shepherd, 536. 
 II V. Sinclair, 107. 
 " V. Stoddart, 144, 471. 
 // V. Watt, 132. 
 II V. Wishart, 342, 377. 
 Grassick v. Farquharson, 420, 421, 487, 
 
 488. 
 Graves v. Kay, 857. 
 Gray, 365. 
 
 '/ V. , 1039. 
 
 // V. Ballegerno, 477, 478. 
 
 Gray v. Finlayson, 705. 
 '/ V. Grant, 385. 
 " V. Gray, 524. 
 '/ V. Harper, 153. 
 '/ Lord V. Hope, 721. 722. 
 » V. Johnstone, 515, 608. 
 " V. Earl of Lauderdale, 138, 1061. 
 II V. Leny, 922. 
 '/ V. M'Nair, 49. 
 '/ V. Monro, 882. 883. 
 '/ V. Palmer, 870. 
 II V. Keid, 282. 
 
 " and Company v. Robertson, 431. 
 II V. Scott, 275. 
 II V. Earl of Selkirk, 447. 
 '/ V. Sutherland, 476. 
 II V. Young, 110, 1127. 1135. 
 Great Northern Rail. v. Inglis, 97, 109, 
 689, 691, 1164. 
 II V. Laing, 614. 
 Great North of Scotland Railway v. Cadell, 
 
 789. 
 Green, Captain, 215, 990, 991. 
 // V. Alston, 736. 
 II T. Howard, 163. 
 II V. Kopke, 224. 
 Greenhill v. Ford, 913. 
 Greenock Bank v. Darrock, 612. 
 // V. Eccles, 1050. 
 
 '/ V. Greenock, 166. 
 
 Greenough v. Gaskell, 1078, 1079. 1084, 
 
 1085. 
 Greenslade v. Dane, 34. 
 Gregson v. Ruck, 107. 
 Greig, 685. 
 
 // V. Boyd, 958. 
 II V. Clark, 472, 560. 
 '/ V. Crosbie, 791. 
 
 // V. Edmonstone, 92, 101. 409, 1068. 
 // V. Moricc, 854, 904, 906. 
 II V. Duke of Qneensberry, 247. 
 Gresly v. Mousley, 1091. 
 Greville v. Chapman, 1158. 
 Grierson v. Carruthers, 289. 
 // V. Grierson, 428, 429. 
 // V. King, 393, 480. 
 
 V. Scotts, 500. 
 '/ V. Thomson, 882, 883. 
 
 V. L. Zester, 656, 855, 856. 
 Grieve, 84. 
 
 // V. Cant, 500. 
 // V. Miller, 489, 490. 540. 
 '/ V. Pringle, 501, 503. 
 Grindlay v. Saunders, 8, 737, 738. 
 Grindel v. Brendon, 749. 
 Grub V. Portcous, 331, 833, 349, 919, 951. 
 Grubb V. Mackenzie, 822. 
 Gudgen v. Besset, 120. 
 Gunn V. Marquis of Breadalbane, 68. 
 '/ V. Fraser, 136, 145. 
 II V. Gardner, 33, 88, 1155. 
 // V. Goodalls, 32. 
 " V. M'Gregor, 640. 
 Guthrie v. Cochrane, 143, 161, 177.
 
 INDEX OF CASES. 
 
 xliii 
 
 Guthrin V. I'Vntrie, 582. 
 " V. Mackortiton, 274. 
 " V. Monro, 157. 
 Guthrics v. L. Ciuthrio, 707. 
 Guy V. Sliarp, 1G7, 1G8. 
 
 '/ aud Company v. Hallam, G, 24, 172, 
 175'. 
 
 Hadflen v. Sliorswood, 568, 5G9. 
 Haddington Election, 72G. 
 Haddoway v. Goddart, fJ2, 1064, 1132. 
 
 " V. Ingli.s, 475, 
 
 Hagan, 998. 
 Haig V. Buclianan, 799. 
 
 " V. Service, 245, 401. 
 Haigh V. Belclier, 18. 
 Hailes, Master of v. Abbot of Newbattle, 
 404. 
 " V. Woman, 872. 
 Hair v. Berwick, 977. 
 Haldane v. Gray, 149, 175. 
 Halden v. Ker, 452. 
 Halkerston v. Kadie, 386, 468. 
 
 « V. Lindsay, 943. 
 
 Halkctt V. Earl of Elgin, 1161. 
 Hall V. Arnot, 303. 
 
 II V. Ball, 107. 115, 116. 
 ' V. Bar, 384. 
 '/ V. Brown, 179, 817. 
 // V. Hardie, 927. 
 '/ V. Hill, 168. 
 
 » V. Otto, 29, 78, 79, 819, 820, 877. 
 " and Sons v. Scott, 220. 
 Hallam v. Gye, 13, 1118. 
 Halley v. Leitch, 609. 
 Halliday v. Halliday. 958. 
 
 // V. Railton, 112, 114, 116. 
 '/ V. Rule, 1011. 
 Haltoun, L. v. E. Northesk, 403. 
 Halwcll V. Lady Cnniing, 580. 
 Halyburton v. Blair, 401. 
 '/ V. Cook, 286, 287. 
 
 u V. Halyburton, 481. 
 
 II V. Prov. of Jedburgh, 720. 
 
 Hamilton, 876. 
 
 II D. y. Aikraan, 23. 
 
 » v. Master of Balmerino, 1129. 
 
 V. Boyd, 137. 920. 
 '/ V. Cuthill, 785, 787. 
 
 I). V. Douglas, 794. 
 V. Durie's Tr., 760. 
 " V. Gib.son, 284. 
 
 * D. V. Hamilton, 1090. 
 
 1 V. Hamilton, 98, 363, 383, 384, 
 
 441, 579, 590, 705, 729, 777. 
 a V. Herries, 322. 
 
 Hamilton's Crs. v. Hamilton, 440. 
 Hamilton v. Hope, 97, 690, 817, 819, 877, 
 1157. 
 " V. Hunter, 726. 
 
 * V. Kinnear, 543, 544. 
 " V. Lindsay, 385, 927. 
 " V. M'Ghie, 63. 
 
 V. Maine, 852, 916. 
 
 llaiuilton V. AlarsLall, 377. 
 // & Co. V. Martin, 333. 
 
 " V. Monkland Iron aud Steel Co., 
 
 726, 730. 
 
 I V. M..nteith, 543. 
 V. Moir, 470. 492. 
 
 // V. Murray, 726. 
 
 » V. L. Oriiiiston, 277, 328. 
 
 » V. Lady I'ittenweem, 394. 
 
 » V. Porterfield, 650. 
 
 II V. D. of Queensberry, 125. 
 
 II V. D. of Queensberry 's Exec.. 
 
 125, 570. 
 
 n V. Reid's Trustees, 172. 
 
 » V. Sinclair, 449. 
 
 // V. His Sisters, 568, 569. 
 
 " V. Smith, 393. 
 
 • Lady v. Stevenson, 07. 
 
 " V. Symington, 274. 
 
 n V. Wright, 389, 500, 511. 
 
 Hamilton's Exr.s. v. Struthers, 483, 497, 
 
 597, 955, 959. 
 Hammermeu of Glasgow v. Crawford, 385, 
 
 386. 
 Hampshire v. Pierce, 162. 
 Hampson v. Hampson, 1090. 
 Hanna v. Neilson, 737. 
 Hannah, 640, 1035. 
 
 " V. Uiggins, 1044. 
 Hannay, 59, 1065. 
 
 Hannay's Trustees v. E. Galloway, 806. 
 Hard v. Anstruthcr, 649. 
 Hardie, 83, 85, 108, 113, 116, 1008, 1027. 
 
 '/ V. Hardie, 441, 476. 
 
 n V. Macall, 12. 
 
 // v. Allan, 927. 
 Hare, 994. 
 
 Hare v. Geddes, 474, 488. 
 Hariot v. Cunningham, 246, 882. 
 Harkes v. Mowat, 27. 
 Harkness, 1024, 1032, 1033. 
 
 v. Graham, 524, 528. 
 
 " V. Harkness, 552, 555. 
 
 Horner v. Haitly, 772. 
 Harper v. Hume, 272, 380. 
 
 " V. Jaflray, 614. 
 
 " v. Robinson. 1061, 10G2, 1063, 
 1072. 1155. 
 Harrat v. Wise, 638. 
 Harris v. Berrall, 548. 
 
 " and Co. v. Crosbie, 258. 
 
 // V. Churchill. 121. 
 
 // v. Harris, 857. 
 Harrison, 886. 
 
 Harrold v. PoUexfen. 95, 613. 
 Harroway v. Wells, 134. 
 
 // V. Hartley, 773. 
 
 Hart V. His Tenants, 719. 
 '/ V. Taylor, 81, 1144. 
 Harvey, 81, 87, 560, 647. 1103, 1132. 
 
 II V. Gibson, 803. 
 
 II V. Hewitt, 46. 
 Harvey's Trustees v. Leslie, 1127, 1131. 
 Harvie v. Crawford, 361, 364.
 
 XllV 
 
 INDEX OF CASES. 
 
 Harvie v. Gordou, 520. 
 
 II V. Inglis, 8G1, 828, 831. 
 Harvey v. Miller, till. 
 Harvie v. Eosjers, 220. 
 
 If V. Smith, 7, 114-4, 1149. 
 Harwood v. Goodriglit, 550. 
 Hussingtoii, L. v. Bartilmo, 432, 477. 
 Hastie v. "Warden, 33, 63. 
 Hastings, March, of v. Exrs. of M. Hast- 
 
 408, 616, 753. 
 Hastings, Warren, 692. 872. 
 Haswell v. Mag. of Jedburgh, 701, 714. 
 
 719, 720. 
 Hathaway v. Barrow, 650. 
 Hatton v. Buckmaster, 695, 697. 
 
 « V. Peddie, 76, 172, 817. 
 Hawes v. Forster, 107. 
 Hay, 112, 393, 394, 844, 865, 1192. 
 
 " V. Boyd, 79, 386, 817, 822. 850, 877, 
 
 1155. 
 " V. Corstorphine, 230. 
 " V. Cockburn's Trustees, 670. 
 II V. Crawford, 105. 
 '/ V. Gumming, 461. 
 II V. Deuney. 1127. 
 /' V. Edin. and Glas. Bank, 807, 1082. 
 " V. Fulton. 952. 
 /' V. Giht, 719. 
 II V. Horn, 120. 
 '/ V. Jameson, 746. 
 II V. M'Michael, 582. 
 " V. M'Teir, 129, 393. 
 " V. E. Morton, 40. 
 " V. Moorhouse, 98. 
 " V. Murdoch, 677. 
 II V. Ogstoun, 918, 935, 936. 
 '/ V. Wingate, 896. 
 ./ V. AVright, 582. 
 Hay's Execs, v. Earl of Linlithgow, 353. 
 Hays v. Hay, 124. 
 Headrick, 649. 
 Heal V. Kenworthy, 224. 
 Healey v. Thatcher, 859. 
 Heane v. Rogers, 857. 
 Heathcote's Divorce Bill, 191. 
 Heddle V. Baikie, 326, 925, 946, 947, 948, 
 
 955. 
 Heddlestone v. Goldie, 1144. 
 Hempsen, 981. 
 
 Henderson, 58, 103, 1057, 1159. 
 // V. Dalrymplo, 708. 
 
 " V. Dunbar, 894. 
 
 V. Gardyne, 1120, 1123. 
 /' V. Hay, 544. 
 
 II V. Lumsden, 791. 
 
 V. M'Artney, 561. 
 V. M'Culloch, 272. 
 // V. Malcolm, 652. 
 
 // V. Monteith, 551, 554. 
 
 " V. Morton, 225. 
 
 " V. Murray, 512, 617. 
 
 V. Richardson, 725, 726, 727. 
 '/ V. Robb and Others, 106. 
 
 '/ V. Robertson, 1071, 1072. 
 
 Henderson v. Royal British Bank, 689. 
 V. Selkrig, 617. 
 
 • V. Smith, 917. 
 
 • V. Steeh^ 608. 
 
 II V. Stewart, 304. 
 
 " V. Thomson, 720. 
 
 V. Wilson, 445, 619. 
 Hendry and Craighead, 865. 
 Henning v. Hewatson, 607. 
 Henry, 1056. 
 
 " v. Adey, 751. 
 // V. Evans, 1033. 
 II V. Lyon, 928. 
 '/ V. Pearson, 170. 
 II V. Young, 46, 59, 60, 649. 
 Hepburn, 1035, 1047. 
 
 V. Barclay, 788, 795, 800. 
 " V. Cowan, 558, 859. 
 
 '/ V. Hamilton, 179, 934. 
 
 // V. Hepburn, 318, 967, 968. 
 
 ri V. Kirkwood, 528. 
 
 n V. Nasmyth, 461. 
 
 /' V. Lord Waughton, 477. 
 
 Hercules Insurance Co. v. Hunter, 64. 
 Heriot v. Blyth, 468, 469. 
 '/ V. Watson, 932. 
 '/ V. Wight, 481. 
 Heriot's Hospital, Feofees of v. Gibson, 
 143. 144. 
 V. M'Donald, 168, 169. 
 Heron v. M'Geogh, 269, 272. 
 Herries' Peerage Claim, 224. 
 Hewitt V. Pollock, 927. 
 Higgins V. Livingstone, 123. 
 Highgate v. Boyle, 377. 
 Hill V. Burns, 419. 
 " V. Cuthbertson, 779. 
 '/ V. Cameron, 949. 
 " V. Magistrates of Edinburgh, 23. 
 II V. Fletcher, 83, 84, 653, 655, 820, 902, 
 
 1072. 
 u V. Hill, 690. 
 II V. Kinloch, 42. 
 '/ V. Lindsay, 97, 691. 
 // V. Duke of Montrose, 707, 708. 
 Hilson V. Marshall, 386. 
 Hilton V. Lady Cheynes, 708. 
 Hinshaw v. Hinshaw, 1025. 
 Hippsley, 840. 
 Hislop V. Hislop, 271. 
 
 " V. Howden, 870. 
 Hissleside v. Littlegill, 591. 
 Hodges V. Drakeford, 613. 
 
 II V. Horsfall, 145. 
 Hodgson, 30. 
 
 Hoseason, Petitioner, 714. 
 Hog, 1057. 
 
 '/ V. Hog, 408. 
 II V. Souter, 47. 
 '/ V. M'Lellan, 725, 726. 
 Hogg V. Hume, 230. 
 » V. Law, 325, 941 . 
 » V. Nimmo, 12. 
 Hoggan V. Rankin, 538, 707, 710.
 
 INDEX UF CASES. 
 
 xlv 
 
 Hukoiiibu V. Stewart, 54. 
 Holding V. Elliot, 135. 
 Ilolehouso V. Walker, 28. 
 Holman v. Johnson, G02. 
 Holmes, ii83, lOlo. 
 
 // V. Keiil, 710, 72'J, 1073. 
 Homo V. Bcntiiick. lUOS, lOG'J, 1071. 
 
 " V. 15io\vii, WJ. 
 
 II Earl of V. L. Buccleugh, 247. 
 
 " V. Colt, 'JG2. 
 
 " V. Donaldson, 299. 
 
 '/ V. (irav, 23. 
 
 " V. Hardy, 114, 804, 853. 
 
 " V. Ht'nderson, (■>41, 1141. 
 
 « V. Horn.-, 43'J, 501, 510, 700. 701, 
 910, 981. 
 
 • V. .histico-Clerk, 520. 
 
 If V. Turves, 540, 009. 
 
 » V. Lord Kenton, 720. 
 
 '/ V. Scott, 370, 050, 856. 
 
 » V. "Wedderburn, 274. 
 Homes v. Anderson, 283. 
 Honeymau v. Camjibell, 3G2. 
 
 // V. Smith, 837, 801, 804. 
 
 Hood V. Darling, 488. 
 
 // V. Keeve, 872. 
 
 « V. Williamson, 11, 40, 1114. 
 Hook V. Hook, 1103, 1177, 1182. 
 Hope, 862, 1079, 1092, 1095. 
 
 ff V. Dickson, 525. 
 
 II V. Fulcher, 693. 
 
 // V. Prosser, 1110. 
 Hopetoun, Earl of v. Scots Mines Co., 446, 
 
 447, 459, 482, 621, 623. 
 Hop Pringle v. Home, 711. 
 Hopkins v. D. Athol, 408, 425, 430 
 Hopkirk v. Deas, 934. 
 Hopwood V. Hopwood, 107. 
 Horn. 57. 
 
 11 V. Hay, 137, 138. 
 
 '/ V. M'Laren, 990, 1142. 
 
 n V. E. Murray, 941. 
 Hornel v. Cordon, 802. 
 Horsburgh v. liuthune, 313, 314. 
 
 » V. Horsburgli, 167, 108, 458, 
 
 471. 
 Hosie V. Baird, 701. 
 Hossack, 844. 
 Hoston V. Tbreshio, 332, 335, 330, 936. 
 
 « V. Paul, 15. 
 Houlditch V. .Johnston, 927. 
 
 // V. AI'Dougal. 052. 
 
 Houldsworth v. Walker, 790, 803. 
 Housfhill Co. V. Neilson, 41. 
 Houston V. Aberdeen, 1030. 
 
 u V. Hamilton, 277. 
 
 t V. Houston, 127, 398, 428, 429. 
 
 » V. Nisbet, 940. 
 
 V. Schaw, 401. 540, 770, 909. 
 V. Yuill, 319, 321, 870. 
 How, Elizabeth, 232. 
 Howard v. Tucker, 857, 873. 
 Howden, 844. 
 
 II V. Ferrier, 536, 538, 700, 710. 
 
 Howden v. Howden, 270, 399, 549. 
 Howies V. Wyllie, 957. 
 Howieson, 982, 1144. 
 
 u V. Gikson, 702. 
 
 Hubert. 888. 
 
 Hubner v. Steuier, 352, 356. 
 Huddle.stone v. Briscoe, 612. 
 Huggane v. Scott, 478. 
 Hughes V. Gordon, 123, 124, 145. 
 
 » V. Turner, 144, 549. 
 Humbie v. Humble, 451. 
 Hume, 763. 
 
 '/ V. Dickson, 444. 
 II V. Hume, 758, 761. 
 /' V. Hyslop, 396. 
 /' V. Livingstone, 243. 
 II V. Kenton, 737. 
 // V. Taylor, 961. 
 Humphreys {soi disant E. Stirling), 90, 
 108, 116, 212, 561, 692. 693, 
 754, 829, 832, 851, 855, lOlo, 
 1078, 1088, 1117, 1122, 1157. 
 1172, 1195. 
 Hunt V. Commissioners of Woods and 
 Forests, 1129, 1131. 
 " V. Hort. 126, 160. 
 Hunter, 44, 57, 81, 87, 904, 993, 1057. 
 '/ and Others, 43, 81, 201, 848, 1016, 
 
 1018, 1019, 1023, 1039. 
 n V. Broadwood. 824. 
 n V. Carson, 00, 106, 689, 873. 
 « V. Dodds, 83, 691, 815, 1054, 1150. 
 '/ V. Dufts, 276. 
 // V. Dunn, 127, 404, 937. 
 . V. Geddes. 951,952, 953. 
 '/ V. George's Trustees, 255, 263. 
 » V. Gibson, 36. 
 // V. Halyburton, 438. 
 II V. Hill, 687. 
 " V. Kehoe, 1176. 
 » V. L. Kinnaird's Trustees, 281, 
 
 282, 283, 319, 908. 
 » V. M'Alister, 277, 278. 
 » V. Miller, 145, 150. 
 " V. Montgomery, 715. 
 II V. Nisbet, 147. 
 " V. Nicolson, 277, 851. 
 » V. Orr, 50. 
 • V. Peter's Creditors, 535. 
 // V. 1). Quecnsberry's Exrs., 11 iW. 
 
 1102. 
 I, V. Robb, 1039. 
 n V. Thomson, 304, 324, 401. 
 Huntly, L. v. L. Forbes, 103, 432, 702. 
 Hurst V. Beach, 108. 
 Ihu-band v. Blair, 947. 
 Hutchison ami Others. 1038. 
 V. Bowker, 150. 
 V. Ferrier, 93, 94, 98, 012. 
 '/ V. Thomas, 55. 
 
 V V. Tod, 112, 763. 
 
 HuUon V. Warren, 172, 175. 
 lluxton V. Edin. and Glas. Rail. Co.. 7'.iS. 
 Hyslop V. Gordon, 229.
 
 xlvi 
 
 INDEX OF OASES. 
 
 Hvslop V. Howden, 314, 315, 840. 
 ■ " V. Miller, 26, 32, 856, 884, 1137, 
 1168, 1170. 
 « V. Nairne, 151, 152. 
 " V. Staig, 20, 26, 1078, 1090, 1137, 
 1170. 
 
 linrie v. Heriot's Hospital, 169. 
 Inch V. Inch, 86. 
 Inglis V. Boswell, 593. 
 
 « T. Cuninghame, 174, 176, 691, 814. 
 
 « V. Fuller, 927. 
 
 « V. Gardner, 41, 42, 1088, 1169. 
 
 II V. Great Northern Kailwav Co., 42. 
 
 » V. Harper, 145, 470, 478, 493, 495. 
 
 " V. Hay, 759, 772, 776, 777. 
 
 " Y. Inglis, 243. 
 
 a V. Lane, 669. 
 
 " V. M'Cubine, 470. 
 
 '/ V. Kobertson, 62, 64. 
 Ingram v. Steinson, 440. 
 Innerleith, Laird of v. Bishop of Glasgow, 
 
 440. 
 Innes, 1030. 
 
 » V. Earl of Fife, 530, 536, 710. 
 
 // V. Glass, 688, 1144, 1164, 1165. 
 
 •> V. Innes, 38, 234, 235, 236, 237, 
 240, 241, 451, 1008, 1059, 
 1060. 
 
 " V. Kerr, 124. 
 
 " V. Lawson, 250, 940. 
 
 'I V. L. Peterborough's Exrs., 100. 
 
 II V. Swanston, 40. 
 Ironside v. M'Gowan, Oil. 
 Irvine, 721. 
 
 n Town of, 1100. 
 
 » V. Earl of Aberdeen, 642. 
 
 " Y. Carruthers, 951. 
 
 " V. Dickson, 318, 968. 
 
 " V. Falconer, 402. 
 
 // V. IrYine, 578, 785, 922. 
 
 '/ V. Lang, 547. 
 
 '/ V. M'Lore, 447, 480. 
 
 // V. Maxwell, 496. 
 
 '/ V. Tait, 524. 
 Irving, 29, 30, 33. 
 
 '/ V. Charteris, 287. 
 
 It V. Corson, 781. 
 
 n V. Irving, 1060. 
 
 . V. Maxwell, 328, 551. 
 
 '/ V. Lady Saphock, 1028. 
 livings V. Kilpatricks, 954. 
 Isles V. Gill, 370, 942. 
 
 n Bishop of the v. Schaw, 528. 
 Hansen, 1110. 
 
 Ivison V. Edinburgh Silk Co., 97, 611, 69). 
 Ivory V. Gourlay, 695, 696. 
 Ivy's, Lady, Creditors, 693. 
 Izatt, 803. 1100. ' 
 
 II V. Kennedy, 716. 
 
 Jack V. Fiddes, 527. 
 " V. .Jack. 468. 1113. 
 " V. Lyall, 11)9. 
 
 Jack Y. Mouatt, 940. 
 » V. Pearson, 725. 
 H V. Kobertson, 962. 
 Jackson y. Bull, 821. 
 '/ V. Munro, 880. 
 
 V. Thomson, 86, 1050. 
 V. "Williamson, 279, 285, 431. 
 Jacob Y. Lindsay, 009. 
 Jac(iues, Serravs, & Co. v. Watt, 369. 
 Jaffray v. Boag, 369. 
 
 '/ V. Robertson, 123, 250. 
 11 V. Simpson, 149, 371, 1087. 
 James v. Catherwood. 602. 
 
 II V. Watkins, 1071. 
 Jameson v. Barclay, 831, 906. 
 '/ V. Grahaine, 250. 940. 
 
 n Y. Main, 29, 818. 
 
 V. Sheriff, 452. 
 " v. Wilson, 927. 
 Jamison v. Hay, 726. 
 Jantzen v. Easton, 828, 830, 831, 921, 
 
 1170. 
 Jardine v. Currie, 275. 
 " v. Harvie, 977. 
 
 V. Lady Melgum, 893, 890. 
 " V. Sheridan, 859. 
 " V. Simpson, 651. 
 Jarvis v. Anderson, 796, 807, 1079, 1083. 
 Jeans v. AVheedon, 96. 
 Jedburgh, Master of v. Elliot, 1029. 
 Jeffrey v. Kyle, 370, 689. 
 a V. M'Gregor, 803. 
 11 V. Walton, 133. 
 '/ V. Lord Wamphray, 711. 
 Jeffreys, 763. 1144. 
 Jenkins v. Blizard, 638. 
 Jenkinson v. Campbell, 764. 
 Jenner v. Crofts, 828. 
 Jennings v. Griliiths, 670. 
 Jerviswood, Lord v. Lord Livingston, 433. 
 Jobson v. Pieid, 235. 242. 
 Joel V. Gill, 418, 451. 
 
 " V. Johnstone, 256. 
 Johnson v. Browning. 821. 
 Johnston, 99, 103, 104, 390, 1035, 1044, 
 
 1057, 1170. 
 Johnston's Assignee, 318, 319, 967. 
 Johnston v. Clerk, 123. 
 •> V. Keyden, 1129. 
 
 '/ V. Law, 948. 
 
 " V. Macdonald, 4. 
 
 • v. Robertson, 144. 
 '/ V. Scott, 1117. 
 " and Company v. Athwell, 599. 
 
 V. Scott, 97, 314, 331, 346, 692. 
 Johnstone, Justice, Trial of, 557. 
 V. Aitken, 365. 
 V. Bell, 284. 
 // V. Berry, 528. 
 
 // V. Coldstream, 418, 424, 448, 
 
 466. 
 » V. Dean of Guild of Aberdeen, 
 
 935, 937. 
 II V. Ferrier, 222.
 
 INDEX OF {JASES. 
 
 Johnstone v. Grant, 389, 300, GOl, <>1H 
 943, 915. 
 
 » V. Johnstone, 443, 449, 458, 
 
 471, 474. 
 
 » V. Napier, 4G1. 
 
 •I V. Paterson, 525. 
 
 " V. Peniiycook, 1151. 
 
 " V. Straciian, 491. 
 
 " V. Union Canal. 118, 121. 
 
 " V. Usborne, 175. 
 
 Johnstoncs v. Mags, of Kilrenny, 100. 
 Jolly V. M'Gregor, 137, 828. 
 
 ' V. M'Ncill, 303. 
 Jones V. p]dney, 122. 
 
 " V. Henry, 159. 
 
 II V. Howell, '.t4. 
 
 " V. M-Ewen and Mitchell, 02. 
 
 " V. Newman, 101. 
 
 " V. Randal, 030. 
 
 " V. Koss, 9. 
 
 " V. Strathan, 138, 139. 
 
 " V. Strand, 1107. 
 
 " V. Tarleton, 113. 
 
 " V. Thomson, 78. 
 
 " V. Williams, 23. 
 J ordain v. Lashbrook, 001. 
 
 Kay V. Gordon, 774. 
 
 II V. Hazcel's Trustees, 824. 
 '/ V. Rodger, 100, 088, 730, 748, 749. 
 Kay's Reps. v. Cleghorn, 902, 903. 
 Kedder v. Reid, 450. 
 Keddie v. Christie, 1052. 
 
 » V. Walker, 859. 
 Keiller v. Thomson's Trs., 147, 158, 102. 
 Keir v. Magistrates of Stirling, 42. 
 
 " V. Pardowie, 686. 
 Keith V. Johnstone's Tenants, 366, 507. 
 
 » V. Purves, 1088. 
 
 '' V. Robertson, 449. 
 
 " V. Smart, 03, 1105. 
 Keith"s Trustees v. Keith, 525. 
 Kell V. Jlorrison, 705. 
 Kellie v. Home, 1130. 
 Kello V. Kiimear, 1130. 
 Kelly, 83, 844. 
 
 " V. Kelly, 407. 
 
 » V. Small, 871. 
 Kemps V. Ferguson, 471, 531. 
 Kendal & Co. v. Campliell, 122, 930, 938. 
 Kennedy, 74, 83, 407, 840, 1033. 
 
 " V. Allen, 00. 
 
 '/ V. Arbuthnot, 421, 424, 491 
 
 » V. Bell, 11. 
 
 " V. Cameron, 203, 544. 
 
 " V. Dalrymple. 281. 
 
 '/ V. Donald, 334. 
 
 " V. Graham, 708. 
 
 " V. Hope, 793. 
 
 " V. M-Lean, 227 
 
 r' V. OswaM, 448. 
 
 '/ V. Rose, 1198. 
 
 " V. Young, 373 
 
 n V. Walker, 698. 
 
 Kennedy v. Watson, 430. 483. 
 Kennoway v. Ainslie, 112, 7C1. 
 Ker V. Marquis of Ailsa, 970. 
 '/ V. Baird, 50. 
 " V. Brown, 257. 
 " V. Bryeon, 931. 
 
 " V. Lady Covington, 932, 933, 936, 937. 
 " V. Downie, 518. 
 '/ V. Fyffe, 1153. 
 '/ V. Gibson, 428. 429. 
 // V. Hamilton, 248, 1115, 1125. 
 II V. Hay, 478. 
 " V. E. Home, 353. 583. 
 " V. Hopkirk and Imlack, 949. 
 " V. Hotchkis, 427, 438. 
 '/ V. Hunter, 179. 
 '/ V. Kav, 709, 780. 
 '/ V. Ker, 080, 701, 708, 910, 948. 
 " V. Lady Ker's Trustee, 408. 
 « V. Ker's Trustee, 018. 
 // V. Mags, of Kirkwall, 330, 331, 345. 
 // \. M'Ewan, 541. 
 II V. Mackay, 804. 
 II V. Martin, 218. 
 II V. Penman, 76, 97, 090, 815, 1023 
 
 1104. 
 '/ V. Riddell, 430, 483. 
 'I V. Robertson, 384. 
 " V. Duke of Roxburtjhe, 785, 805, 1078 
 
 1082, 1090. 
 " V. Ruthvcn, 274. 
 " V. Scot, 741, 745, 747, 803, 1103. 
 " V. Scot's Creditors. 707. 
 '/ V. Skedden, 127, 404. 
 « V. Steedman, 051. 
 " V. Sun Fire Office, 653. 
 // V. Wauchope, 107. 
 " V. Woods, 290. 
 Kerr, 1188. 
 
 " v. Bremner, 048. 
 Kibbles v. Rose, 705, 710. 
 
 '/ V. Stevenson, 500, 711. 
 Kilbuck, Minister of, 328. 
 Kid V. Bunyan, 1080, 1087. 
 
 // V. Dickson, 433. 
 Kidd V. Brown, 880. 
 Kidstone v. Stead, 250. 258. 
 Kilmahew v. Cunningham, 1149. 
 Kilmarnock Railway Co., 790, 791. 
 Kilpatrick v. Ferguson, 447, 490. 
 '/ V. Kiljiatrick, 134, 380. 
 
 Kilwinning, Commendator of v. L. Blair 
 
 727. 
 Kincaid v. Dickson, 950. 
 
 " V. Stirling. 305, 506. 
 Kincardine, Countess of v. Brownhall 7^3 
 
 '/ Ear] of, 1090. 
 
 King V. Baillie. Oil. 
 » V. Crichton, 541. 
 " V. Magistrates of Elgin, 691. 
 n V. Greenock Bank, 458. 
 " V. Holt. 037. 
 » V. Johnson, 62. 
 1 V. Lufle, 234.
 
 xlviii 
 
 INDEX OF CASES. 
 
 Kingv. Kiui:, 19. 77, 112, 1034, 1044, 
 104'). 1057, 1058, 1059, 1156, 
 1170. 1184. 
 
 » V. Reeks. 599. 
 
 // V. Steveuson, 1012. 
 
 II V. Strathern, 740, 747. 
 Kingan v. Watson, 27, 77, 108, 562, 1156, 
 
 1157. 
 Kinghorn, Earl of v. Hay, 505, 512. 
 
 " Vicar of v. Lord Sealield, 656, 
 
 856. 
 King's Advocate, 812. 
 
 v. Craw, 11. 
 Kingstone's Creditors, 611. 
 Kinloch, 1084, 1162. 
 
 Sir A., 1079, 1084. 
 
 y V. Forbes, 972. 
 V. Mercers, 309. 
 Kinlochy v. Lord Conservator, 300. 
 Kinnaird v. M'Dougal, 135, 178. 
 
 '/ V. Yearaan, 277, 278. 
 
 Kinnear v. Kellie, 772. 
 Kinnear's Exr. v. Eae's Exr., 891. 
 Kinnoul v. Hunter, 738. 
 Kippcn V. Darley, 167, 1199. 
 Kircliner v. Venus, 176. 
 Kirk V. Guthrie, 46, 78, 649, 1020. 1059, 
 
 1096, 1117. 
 Kirkaldy v. Dalgairns' Trustees, 481. 
 Kirkbam v. Campbell, 706, 708. 
 Kirkland v. Cadell, 53. 
 
 » V. Nisbet, 152. 
 
 // V. Slater, 871. 
 
 Kirkman v. Cockburn, 637. 
 Kirkness, Lady, 745. 
 Kirkonnell, L.V. L. Barnbarrocb, 712, 724. 
 
 728. 
 Kirkpatrick, 988. 
 
 // T. Donaldson, 828, 831. 
 
 II V. Ferguson, 496. 
 
 Kirkton v. Lord Hunthill, 650. 
 Kirkwood v. Patrick, 532. 
 
 '/ V. Wilson, 929, 938. 
 
 Kitchen v. Fisher, 32, 95, 851, 1137. 
 Knox V. Crawford, 271, 279. 
 
 '/ V. M'Caul, 52, 220, 343, 971. 
 
 n V. Martin, 878, 697, 872. 
 Kyle V. Logan, 277. 
 
 " V. Macpherson, 46. 
 
 Lord -Advocate v. Craw, 241. 
 
 II V. Druramond, 570, 572, 
 
 578. 
 
 " V. Lord Forbes, 157. 
 
 // V. Foulden, 242. 
 
 » v. Hay, 93. 307. 
 
 » v. Home, 851. 
 
 '/ V. Moffat, 653. 
 
 Lacy, 718, 730. 
 Laidlaw, 812. 
 
 » V. Hamilton, 311, 319. 
 
 » V. Park, 541. 
 
 » V. Smith, 824. 
 V. Spittal, 1142. 
 
 Laidlaw v. Wilson, 485. 
 
 Lafone v. The Falkland Islands Company, 
 
 1090. 
 Laing v. Adamson, 15. 
 II V. Anderson, 250. 
 '/ V. Hay, 696. 
 // V. Laing, 6, 385. 
 Laird, 21, 191, 730. 
 La Pine v. Semple's Creditors, 614. 
 Lamb v. Blackburn, 712, 724, 727. 
 
 // V. Dunn, 337, 338, 339. 
 Lambton v. Marshall. 264. 
 Lamerton, Lord v. Home, 707. 
 Lamington v. Kincaid, 754. 
 Lamond's Trs. v. Merry, 332, 1199. 
 Lamont v. Lament's Creditors, 611. 
 Landles v. Gray, 1183. 
 Ijane v. Matheson, 67. 
 Lang, 984. 
 
 n V. Brown, 49, 481. 
 // V. Bruce, 122, 647, 768. 
 '/ V. Lillie, 29, 1155. 
 Langham v. Sandford, 168. 
 Langhorn v. Alnutt, 873, 874. 
 Langley v. Earl of Oxford, 823. 
 Lapsley v. Grierson, 226. 
 Larg, 1008. 
 Lauder v. Chalmers, 931, 934. 
 
 // V. M'Gibbou, 318, 341, 957, 967, 
 
 968. 
 '/ V. Millars, 525. 
 // V. Mowat, 409. 
 '/ Magistrates of v. Brown, 23, 170. 
 Lauderdale, Earl, 780. 
 
 '/ E. V. Duchess of Lauderdale, 
 
 1128. 
 V. His Tenants, 394, 396. 
 E. V. Mackay, 766. 
 Laurie v. Laurie, 448, 469, 478. 
 Law and Others, 1038. 
 
 II and Turner v. Linton, S98. 
 n V. Gibsone, 128, 178, 404, 405, 1126. 
 '/ V. Hume, 746. 
 '/ V. Johnstone, 966, 968. 
 '/ V. Lundin, 922. 
 II V. M'Laren, 611. 
 Lawrence v. Camyibell, 1091. 
 Lawrie v. Craik, 395, 505, 515, 516. 
 n V. Donald, 648, 649. 
 " V. Drummond, 225, 577, 871. 
 '/ V. Gibson, 119, 701, 732. 
 » V. Miller, 701. 
 » V. Eeid, 530. 
 Laws V. Reid, 1163. 
 Lawson v. Auchinleck, 370, 617. 
 // V. Eddie, 220, 237, 904. 
 " V. Fairie, 902. 
 // V. Milne, 324. 
 II V. Murray, 120, 178, 919. 
 II V. North British Railway Co., 62, 
 63, 146. 
 Layer's Case, 37. 
 Lea V. Landale, 692. 
 n V. Longdale, 594.
 
 INDEX OF CASES. 
 
 xlix 
 
 Lee V. Meecoek, 108. 
 
 " V. Taiii, lf)8. 
 Leannoiitli v. Alexander, 582. 
 
 '/ V. Kussell, 957, 007. 
 
 Leckie v. Leckie. 572. 
 
 '/ V. Liud.say, 'J04. 
 Leisliniau v. Mercer, 201, 205. 
 Leitcli, 30. 
 Leitli V. ElphinstoH, 541. 
 
 // V. Leith, 017. Gll». 687. 
 
 '/ Bank v. Matherrf, 433. 
 
 " " V. Walker's Trs., 456, 702. 
 Lomain v. Stanley, 473. 
 Leuaghan v. IMuiikland Iron and Steele 
 
 Co.. 02. 
 Lepp.r V. Brown, 235, 236. 
 Lermont v. Lerinout's Heirs, 715. 
 Lenioch, Lord v. L. Preston, 380. 
 Lesnuire v. Man^uis of Iluntly, 772. 
 Leslie v. Blackwood, 18. 
 
 V. Mags, of Brechin, 344, 346, 872. 
 /' V. Curtis, 609. 
 
 '/ V. De la Torre. 129. 
 
 '/ V. Grant, 1U78, 1081. 
 
 " V. Leslie, 361. 
 
 // V. Millers, 484. 
 
 n V. Mollison, 348. 
 Letters v. Black, 43. 
 Levon, Earl of v. Arnot, 300. 
 
 // and Melville. E. of v. Cartwriglit, 
 160. 
 
 >i V. Board of E.xcise, 1070. 
 
 n V. Young, 41, 1009, 1072, 1073. 
 
 '/ V. Young & Co., 825. 
 Lewellyn v. AVinkworth, 375. 
 Lewis V. Blair, 866, 875. 
 Leys, Masson & Co. v. Lord Forbes, 41. 
 Liddell, 1035. 1057. 
 Liddle v. Dick's Creditors, 528. 
 Lillie V. Finlater, Oil. 
 Lilliesv. Lillie, 112, 758, 773, 774. 
 
 » V. Smith, 708. 
 Limond, 769. 
 
 ft V. Held, 725, 900. 
 Lindores, Lord v. Foulis, 712. 
 
 '/ V. Stewart, 569, 580. 
 
 Lindsay, 1023. 
 
 » V. Barmacotte, 134. 
 
 " V. Earl of Bnclian, 305, 308. 
 
 " V. Chapman, 832. 
 
 1 V. Gilelirist. 55'.t. 
 V. Giles, 447, 707. 
 
 " V. Henderson, 167. 
 
 " V. Kerr, 11. 
 
 V. Mofl'at, 313. 
 
 '/ V. Thomson, 1182. 
 Linlithgow Mags. v. Edinburgh and Glas- 
 gow Railway, 169. 
 Linton v. Dundas. 520. 
 Linwood V. Hathorn, 653. 
 Liston V. Gallownv, 248. 
 Little, 1018. 1028. 
 
 » V. Graliani, 891. 
 
 " V. Halliday, 361. 
 
 Little V. Hillstones, 394. 
 
 '/ V. E. Xithsdalo, 745, 747. 
 
 // V. Sniitli, 93, 113, 25.3, 255, 256, 
 200, 830, 845, 852, 853, 1021, 
 1072, 1073, 1126. 
 
 f and Company, v. Muir, 421. 
 Little's Trustees v. Kaird, 310, 956. 
 Littlegill, 951. 
 Littlejohn v. Hepburn, 434. 
 Livingston, L. v. Falhouso Feuars, 606. 
 
 * V. Lord Napier, 708. 
 
 Livingstone, 47, 1131, 1132. 
 
 « V. 1 liuwoodie, 70, 96, 798. 
 
 " V. Menzies, 832. 
 
 " V. Murray, 795, 804, 829, 
 
 8.-i3, 858, 1168. 
 
 •' V. Nairn, 424. 
 
 " V. Fresby. of Hamilton, 520. 
 
 Lloyd V. Frcshfield, 1079. 
 
 '/ V. Welsby, 375. 
 
 " V. Willan, 872. 
 Loch, 840. 
 Lockhart v. Baillie, 570. 
 
 ri V. D. Gordon, 284. 
 
 // V. Hamilton, 5-39. 
 
 '/ T. Kav, 448. 
 
 " V. Lockhart, 520. 
 
 V. M'Donald, 124. 
 V. Mitchell, 302, 316. 340, 872. 
 
 II V. D. of Queensberry, 284. 
 Lockerby v. Stirling, 883. 
 Lockie, 500. 
 
 Lockyer v. Sinclair. 137. 
 Logan V. Bmwn. 373. 
 
 n V. Carlile, 727. 
 
 II V. Ilowatsoii, 920. 
 
 // V. I-ogan, 478. 548, 567, 586. 
 
 // V. M'Adam, 827, 848. 
 
 II V. Wallace, 854. 
 Logans v. Wright, 161, 162. 
 Logic V. Ferguson. 496. 
 London Joint Stock Bank v. A. Stewart, 
 
 375. 
 Londonderry, Exrs. of E. v. E. Stair, 1108. 
 Longmore v. Lindsay, 600. 
 Longneckcr v. Hyde, 873. 
 Longworth v. Yelverton, 78, 114, 361. 362, 
 
 363, 787, 805, 818. 
 Lord V. Colvin, 1152. 
 Loudon V. Jackson, 502. 
 
 II V. Loudon, 018. 
 Loughton. 1000. 1076. 
 Low V. Allardice, 361. 
 " V. Bcatson, 4-50. 
 '/ V. Taylor, 824. 
 Lowe V. Bayne. 903, 904. 
 Lowndes v. Douglas, 407. 
 Lowrie and Cairns, 804. 
 
 II V Drummond. 697. 
 
 n T. (iibson, 520. 
 
 II V. Mercer, 1059, 1060. 
 Lowson V. Matthew. 376, 431. 
 Lovat, Lord v. Sherilf of Nairn. 650. 
 
 " V. Lord Lovat, 911. 
 
 /
 
 INDEX OF CASES. 
 
 Lovat V. Lovat, 401. 
 Lowe, 981, 982, 985, 988. 
 Loveden v. Lovedeii, 857. 
 Lowit', 1144. 
 Lucas V. Briston. 150, 175. 
 
 /' V. De la Cour. 869. 
 Lugton, Lady v. Hepbiirn. 274. 
 Lumsdaiiie v. Balfcnir. 7'JO, 1085. 
 Lumsden v. Allan, 6(i9. 
 
 » V. Gordon. 9o0. 
 
 '/ V. Marr, 489, 540. 
 
 Lundie, 1007. 
 
 " V. Douglas, 137. 
 Lyell V. Brand, 894. 896, 940. 
 Lyle V. Crichtou, 323. 
 n V. Graham, 893. 
 Lynedoch v. Listou, 112, 757. 
 Lvon V. Earl of Aboyne, 538. 
 ■// V. Butter, 420, 421,487,488,830,832. 
 /' V. Lamb, 12. 
 « V. Mitchell, 334. 
 
 M'Adam v. Fogo, 308. 
 
 // V. Walker, 21, 360. 
 M'AIister v. Gemniil, 123, 253, 1198. 
 
 tr V. M'AIister, 90, 1152. 
 M'Alpines v. Parson.?, 631. 
 M'Audrew v. Hunter, 330, 346. 
 
 " T. Eobertson, 466. 
 
 M'Ara v. Watson, 540, 543. 
 M'Arthur v. Brown, 240. 
 " V. Croal, 655. 
 
 n V. M'Briar and Johnston's Trs., 
 
 668. 
 i> V. M'Arthur, 878. 
 
 '/ V. Paterson, 558. 
 
 " V. Simjison, 501. 
 
 Aslon V. Glen, 578. 
 Avoy. 59. 
 Bain, 1027. 
 
 Bayne v. Davidson, 237, 906. 
 Bean v. M'Phcrsou, 474, 487. 
 Bey V. Keid, 6. 
 Bryde v. Bryson, 568. 
 Galium, 32, 718. 
 // Jean, 222. 
 
 " V. Corner, 846. 
 
 V. M'Call, 920, 921, 1168. 
 Callay v. Inglis, 428. 429. 
 Candlish v. Forbes, 20, 830. 
 Carter, 982, 983. 
 Cartney v. Guthrie, 718. 
 Christie v. Fisher, 292. 
 Clatchie v. Brand, 1011. 
 Clure V. Jaftray, 789. 
 Comb V. M'Millan, 776. 
 Conochie v. Paul. 790, 791. 
 Cowan V. Wright, 137, 138, 795, 806, 
 
 807, 1085, 1089. 
 Craken v. Pearson, 95, 101. 
 Crowe V. Bell, 903. 
 Cubbin V. Stephens, 597. 
 " V. Tumbull, 541 , 544, 891, 1 142 
 
 ti V. Babington, 1110. 
 
 M'CullochJv. Litt, 27, 77. 
 M'Donald, 1013, 1071. 
 
 '/ V. Burden, 917, 950. 
 
 " V. Callender, 396. 
 
 " V. Cooper, 923. 
 
 " V. Ferguson, 66. 
 
 " V. Jackson, 307. 
 
 " V. Langton, 259, 261. 
 
 " V. Laugton and Others, 253. 
 
 /' V. M'Ghie, 758, 775. 
 
 V. M'Gregor, 393, 394. 
 
 " V. M'Kennon, 762. 
 
 '/ V. M'Leod, 727. 
 
 '/ V. Widow of a Peer, 892, 1097. 
 
 M'Donell v. Donaldson, 250. 
 M'Donnell v. Ranken, 55, 917. 
 M-Douall V. Prior of Ardchattan, 736, 737. 
 
 '/ V. Rep. of Kennedy, 530. 
 
 M'Dougal, 1108. 
 
 '/ V. Clapperton, 179. 
 
 M'Dougall V. Applecross, 288. 
 
 V. Campbell, 329, 331. 
 M'Dougall's Crs. v. M'Dougall, 271. 
 M'Dougall V. Foyer, 490. 
 
 " V. Oliphant, 429. 
 
 M'Dougal V. Whitelaw, 245. 
 M'Dowal V. Douglas, 257. 
 
 « V. M'Ghie, 547, 766. 
 M'Dowall V. Campbell, 559, 560, 561. 
 
 /y V. M'Lurg, 329. 
 
 V. Wighton, 519, 552, 553, 561. 
 M'Duif V. Stewart, 394. 
 M'Ewan v. Cotching, 881. 
 
 // V. Crawford, 388. 391. 
 
 n V. Graham, 253, 540, 541. 
 
 " V. Muirhead, 924. 
 M'F'arlane, 718. 
 
 '/ V. Brown, 333. 
 
 '/ V. M'Nee, 765. 
 
 M'Gale, 559. 
 M'Gavin, 694, 844. 1140, 1143. 
 
 '/ V. Stewart, 830, 833. 
 M'Gie, 59. 
 M'Ghie, 1035, 1046. 
 
 // Y. M'Kirdy, 23, 55, 97, 690, 855. 
 
 " V. Leishman, 445, 706, 708. 
 
 II V. Lord Tester, 582. 
 M'Gibbon v. M'Gibbon, 521, 524, 526. 
 M'Gilchrist v. Rowan, 703. 
 M'Gill V. Edmondstone, 567. 
 
 " V. Forret, 394. 
 
 // V. Hutchison, 476. 
 M'Gillivray v. Campbell, 708. 
 M'Gilvray," 985. 
 M'Ginnes, 119'2. 
 
 " V. Harvey, 640. 
 
 M'Glashan v. Dundc(^ & Perth Rail., 12. 
 
 n v. Her Majesty's Adv., 1072. 
 
 M'Gowan v. M'Kellar', 260, 264, 266. 
 
 // v. Montgomery, 279. 
 
 M'Gregor, 724. 1065. 
 
 '/ V. Gibson, 251, 253. 
 
 V. M'Gregor, 313, 314, 315, 874, 
 970.
 
 INDEX OF CASES. 
 
 M'Gregor v. Strathfilliin, l'2'2. 
 
 * V. Stewart, 35)1. 
 
 M'Fadyen and Others, U'.iS, 1145. 
 M'Guire. 1084. 
 M'lIaiHe, 69. 
 M'Hardi.-, 84. 
 
 M'lldownie v. Graham, 448. 
 M'llhoso V. Reid, 371. 
 M'lhiocli V. M'liitvrc, 430. 
 M'llwraith v. Il-Mickia, 429. 
 M'Indoe v. Frame, 308, 300, 315, 319, 870. 
 M'lunes v. Moore, 137. 
 M'Intosh or M'Lacldan, 217, 835, 994. 
 
 // V. Blair, 1005. 
 
 " V. Flowerdno, 20, or,, 08. 
 
 V. Great AVcstern JJail., 1124. 
 
 // V. In^lis, 705, 700, 711. 
 
 V. M'lutosh, 572, 589, 590, 741. 
 
 " V. M'Kenzio, 724. 
 
 V. M'TavisIi, 127. 404. 
 
 '/ V. Ogilvy's Trustees, 173. 
 
 M'lntyre, 58. 
 
 » V. Graham, 1932. 
 
 II V. M'Farlane, 470. 
 
 '/ V. M'Farlam.'s Trustees, 493. 
 
 M'Uquham v. Cal. liail. Co., 790, 791. 
 M'llwliam V. Kerr, 255, 890. 
 M'iver V. Humble, 070. 
 
 'f V. M'Callum, 851. 
 M'Kay and Broadly, 718. 
 
 f/ and Others, 835. 
 
 // V. Cariiiichael, 328, 830. 
 
 // V. Davidson, 694. 
 
 I' V. M-Lachlun, 648, 833. 
 
 " V. M-Leods, 1057. 
 
 » V. M-Neill, 837. 
 
 // V. Robertson. 543. 
 
 // V. Ure, 696, 883, 953. 
 
 // V. Wiglit, 1019. 
 
 M'Kean v. 719. 
 
 M'Kee v. Nelson, 1157. 
 M'Kellar v. Lambert. 93. 
 
 '/ V. Scott, 827, 833, 905. 
 M'Kechnie, 839. 
 
 f and Campbell, 839. 
 
 M'Kennal v. Wilson, 27. 
 M'Kenzie v. Town of Burntisland, 284. 
 
 ri V. Burnet, 435. 
 
 " V. Eraser, 449. 
 
 '/ V. Gordon, 287. 
 
 // V. Learnumth, 23. 
 
 // V. M'lntosli, 924. 
 
 // V. M'Kruzie, 503, 519. 
 
 I, V. M'Rae, 149. 
 
 // V. Trotter, 507. 
 
 JI'Kcnvar v. Vernon, 972. 
 M-Killop, 1057. 
 
 M'Kinlav, 040, 724. 1013, 1015. 
 V. Gillon, 373. 520. 
 
 n V. (Tdrddii, 865. 
 
 V. M'Kinhiy, 330, 331, 332, 333. 
 M'Kirdy v. Anstruthir, 8. 
 
 I, V. M-Lachhm, 799. 
 M'Kostie V. Ilalley, 542, 643. 
 
 M'Laclilan v. Baird, 62. 
 M-Lachlan v. Campbr-ll, 252, 737, 1183. 
 M'Laggan v. M'Earhine, 175. 
 M'l.aren v. Buik, IH, 304, 337, 343, 916. 
 '/ and Otliers. 836, 862. 
 
 'I V. Finlay. 727. 
 
 V. iM'Cullocli, 903. 
 // V. M'Donald, 912. 
 
 // V. Liddell's Trs., 119,485. 
 » V. Rae, 15. 
 '/ V. Wink, 873. 
 IM'Larty V. Borland, 771. 
 M'Lauchlau v. Douglas and Kidston, 1094, 
 1140. 
 // V. IM'Dougal, 726. 
 
 // V. Thomson, 287, 308, 309. 
 
 M'Lauchlane v. Henderson, 261, 264. 
 M'Laurin v. Stuart, 648, 891, 973. 
 M'Lea v. Reid, 807. 
 M'Lc-an, 1006, 1008, 1087. 
 M'Lean"s Divorce Bill, 235. 
 M' Lean V. Elder, 1182. 
 
 '/ V. L. Macdonald's Com., 825. 
 '/ V. JIacfarlane, 045. 
 V. M'Lean, 3. 
 V. :Morris.m, 5, 542, 830. 
 V. Ogilvie. 964. 
 " V. Otiicers of State, 3. 
 " V. Richardson, 374, 500, 515. 516, 
 
 1126. 
 // V. Sibbald, 1120, 1121, 1163. 
 M'Leay v. Lehose, 5. 834. 
 M'Lellan v. Gibson, 03, 1158. 
 
 r/ V. Graliam, 716, 723, 729. 
 M'Lennan v. Murray, 924. 
 
 « V. Reid. 922. 
 
 M'Leod, 16, 21, 104, 640. 
 ir V. Bruce, 177. 
 fi V. Cunningharae, 125, 819. 
 // V. M'Lean, 769, 772. 
 If V. M'Leod, 145, 156, 1087, 1088, 
 
 1158. 
 ,f V. Urquhart, 98, 122, 510. 
 M'Lerie v. Glen, 225. 
 M'Loskey v. Glasgow and Clyde Co., 2 . 
 
 // V. Glas. Marine Insur. Co., 798. 
 
 M'Liire, 1024. 
 
 '/ V. Jaft'rav. 789, 799. 
 M'Lurg V. E. Dalliousie, 484. 
 M'Jlanus, 1038, 1039. 
 M'JIastrr V. Brown, 363, 385, 829, 832. 
 M'Math V. Oliphant. 449, 563. 
 M'Micken v. Kenm'dv, 447. 
 M'Millan, 30, 81, 835. 
 
 II V. Campbell, 709, 710. 720, 727. 
 
 V. M-Millan, 469, 478, 503. 
 n V. Price, 245. 
 
 V. Stewart, 543, 917 
 M'Morran v. Black, 435, 443, 500, 519. 
 M'Nab V. Lockhart, 930, 931. 
 
 II V. Telfer, 92, 100, 113, 287. 
 M'Nair v. Gray, 125, 567. 
 M'Namara. 985, 988, 1056. 
 M'Naught, 840.
 
 Hi 
 
 INDEX OF CASES. 
 
 M'Naught V. Graham. (il2. 
 M'Naughton v. Glass, 906. 
 
 V. M'Nau^liton, -290. 341, 
 
 374, 957. 
 V. Muriav. 520. 
 M-Neil. G6. 
 
 " V. Black. 389, 501. 512. 514. 
 
 " V. Blair. 311. 319, 870. 
 
 » V. M'Neil, 354, 1011, 1167. 
 M'Neill, 718. 1129. 
 
 " V. Caltlwell, 42. 
 
 '/ V. M-Kissock, 312, 960. 
 
 " V. Eorison, 25, 27, 28. 
 M'Neille v. Cowie, 456, 457. 527. 
 :\I'Xicol V. 31'Nti], 316, 870. 
 M'Niven y. Hunter, 611. 
 M'Phcrsou, 31, 59, 93. 
 
 // V. Aiichlossiu, 893, 894. 
 
 V. Jl-Plierson, -501. 
 M'iMier.sons v. Koss, 8. 
 M-Phun V. Giithrio. 407. 
 
 " V. Reid, 1179. 
 JI-Quarry. 983. 
 M'Queen, 909. 
 
 " V. Ctyne's Trustees, 727, 728. 
 
 // V. Murdoch, 608. 
 
 n V. Robson, 640, 846, 847. 
 M'Eae v. Blair, 865. 
 M'Raith v. Murdoch, 474. 
 M'Rori V. M'Whirter, 98, 366, 607, 512, 
 
 516. 
 M-Rostie V. Halley, 542, 543, 1126. 
 M'Taggart and Others, 846. 
 M'Tavish v. Campbell, 335. 
 
 // V. L. Saltoun, 314, 315, 321. 
 
 M-Vicar v. M'Callum, 738. 
 M'Vittie V. Barbour, 729. 
 ll'Whir V. Maxwell. 45, 643, 1066. 
 
 '/ V. Oswald, 823. 
 M'William, 26. 
 
 Maberly and Co., 1134, 1152. 
 Macalpino v. Macaliiine, 1012. 
 Macandrew v. Hunter, 313, 314, 340, 342, 
 
 343. 
 Macara v. Wilson, 933. 
 Macartney v. Mackenzie, 97. 
 Macaulev v. Buist, 12. 
 Maccaul," 1022. 
 
 Macclesfield, Earl of, 24, 1141. 
 Macnimeu's Trs. v. Edinburgh and Glas- 
 gow Bank, 459. 
 Macer v. Lord Aldie, 398. 
 Macdonald, 1006, 1118. 
 
 // V. Crawford, 319. 
 
 // V. .Jackson, 325. 
 
 '/ V. Kelly, 377. 
 
 // V. Macdonald, 425, 445. 
 
 * V. Sinclair, 729. 
 
 " V. Stewart, 603. 
 
 MacdonaWa Trs. v. Rankine, 487, 488. 
 Macdougall v. Brisbane, 461. 
 Macdougalls v. Gordon, '2. 
 Macdowall v. Loudon, 330, 360. 
 
 Macfarlaue, 83, 707. 
 
 " V. Brown, 324. 
 
 " V. Fisher, 381. 
 
 " V. Grieve, 447, 496. 
 
 " V. Liiwis, 69. 
 
 'I V. Macfarlaue, 825. 
 
 V. Watt, 118, 161, 916. 
 V. Young, 29, 33, 147, 655, 
 990. 
 Macfarquhar v. Calder, 408. 
 Macgregor, 44, 292, 646. 
 
 " V. Strathallan, 99. 
 
 Macgillivray v. Soutar, 42. 
 Machargs v. Camitbell, 653, 1118. 
 Macindoe v. Lyon, 1119. 
 Mack V. Oleland, 856. 
 Mackintosh v. Lady Ashburton, 1161. 
 '/ V. Baillie, 323, 325. 
 
 '/ V. Fraser, 44. 79, 645. 
 
 n V. Grant. 109, 599, 611, 612. 
 
 II V. M'Konald, 431. 
 
 II V. Mackintosh, 687. 
 
 // V. M'Quteu, 790. 
 
 '/ V. Pitcairn, 873. 
 
 Mackay and Others, 835, 842. 
 II V. Ambrose, 374, 379, 381. 
 " ■ V. Baillie, 15. 
 " V. Earl of Lauderdale, 772. 
 V. Mackay, 239, 240. 
 V. M'Leods, 77, 822, 1021, 1022, 
 
 10.54, 1057, 1136. 
 V. Milne, 650. 
 V. Ure, 317, 347, 348, 872. 937, 
 
 93S 
 V. Waddel, 1183. 
 Mackie v. Town of Edinburgh, 1018. 
 11 V. Hilliard, 709. 
 // V. Maxwell, 741. 
 // V. Watson, 398, 399. 
 II V. Wight, 655, 852. 
 Mackellar v. Lambert. 369, 1119, 1123. 
 '/ V. I), of Sutherland, 27, 34, 64, 
 
 65. 
 Mackenzie, 87, 96, 608, 848, 1138. 
 V. Batlmrst, 999. 
 " V. British Linen Co.. 545. 
 
 // V. Brodie, 271, 375, 387, 396. 
 
 II V. Buchanan, 707. 
 
 '/ V. Burnett, 435, 477. 
 
 " V. Town of Burntisland, 335. 
 
 " V. Crawford, 608. 
 
 I, V. Dott, 6, 489. 
 
 II V. L. Dundas, 767, 774, 855. 
 
 V. Dunlop, 145, 148, 150, 151, 
 172, 173, 175, 421. 
 // V. Dunlop, Wilson & Co., 151, 
 
 175, 176, 177. 
 V. Town of Elgin, 691, 815, 
 
 873 
 V. Lord Elibank, 384. 
 V. Hall. 620, 631. 
 V. Henderson. 1021, 1106. 
 V. Home, 1165, 1166. 
 '/ V. Mackartney, 690.
 
 INDEX OF CASES. 
 
 Illl 
 
 Mackenzie v. Miick;iy, 822. 
 
 '/ V. Mackfiiizie's Trs., 485. 
 
 " V. Monro, TOo. 
 
 // V. IVIiirrav, llaO. 
 
 '/ V. Jioss, 1120, 112;^. 
 
 '/ V. liny, ]02r,, 1027, lir);'). IK;?. 
 
 « V. Sniitli. 4;!;'., 702. 72S. '.)(»:;. 
 
 '/ V. Stewart, oDO, ;i01, a02, 4:31, 
 
 4'J9, 828, 8;il. 
 
 '/ V. TrottiT, 'Ml. 
 
 v. Too, 1080, 1082. 
 Mackersey v. Guthrie, '.)77. 
 Macicersie v. Maekenzie, 1077. 1089. 
 Mackilligan v. Maokilligan, r)o2. 
 Mackinlay v. Mackiulay, ^24, 330, 332, 
 
 3:!;",. 
 Maclaclilan v. Koad Trustees, 856, 859. 
 Maclaine v. Maelaiue, 157. 
 Maclareu v. liuik, 910. 
 
 » or Eaw v. AVilson, 6, 13. 
 
 Maclean v. Maclean "s Tr.s., 100, 784, 785, 
 810. 
 
 // V. Jliller, 84. 820. 
 Macleans v. Smith, 253. 
 Macleod, 1023, 1159. 
 
 // V. Cunninghame, 456. 
 Maclurg v. Blai'kwood, 572. 
 
 '/ V. E. Dalhousie, 484. 
 Macnamara, 1105. 
 Macneil v. Livingstone, 287. 
 Macpherson, 1104, 1105. 
 
 '/ V. JIaci.her.s(.n, 448, 455, 1153. 
 
 Macquecn v. Colvin, 095. 
 
 >f V. M'Intosh, 095. 
 
 '/ V. Robson, 040. 
 
 Macrae, 752. 
 
 Maden v. Cattanach, 992. 
 Magee V. Atkinson, 121. 
 Mahler and B.'rrenliard, 640, 835, 837, 802. 
 Maiklera v. M-(iruther, 578. 581, 582. 
 
 // V. AValkcr, 375, 431, 521. 
 
 Main and Aitchison, 9S3. 
 If V. "Wilson, 304, 309. 
 Mainwaring v. Baxter. 924. 
 Maitland v. Baillie, 318, 902, 967, 968. 
 Maitlaud v. Caskogill, 802, 891, 935. 
 
 " V. Maitland. 474. 
 
 " v. NeiLson, 490. 
 
 Makellor v. Hunter, 270. 
 Mair v. Thonis, 579, 581. 
 Malcolm, 755, 811. 
 
 '/ V. r.alt'our. 284. 
 
 " V. Ballendene, 251 , 253, 257, 200, 
 
 830. 
 
 '/ V. Barden, 528. 
 
 » V. Stewart, 1128. 
 
 Malloch V. Graiiani, 583. 934. 
 Malvenius v. Baillie, 873. 938. 
 
 n v. Hepburn, 119. 701. 
 
 Mauderson v. M-Minn. 501, 512. 
 
 '/ V. M'Niven, 389. 
 
 Man V. Campbell. 897. 
 
 « V. Walls, 491. 
 Mann v. Forrest, 904. 
 
 Mann v. Mann, 709. 
 
 » V. Sniitii, 05, 805. 
 Mansfield, Hunter, & Co. v. Dongla.s, 259. 
 
 '/ V. M-llmun,259. 
 
 " V. Maxwell, 690, 091, 815. 
 
 '/ V. Stewart. 809, 811. 
 
 Maiison v. Baillie. 220. 
 JIanuel v. F'raser. 79, 877, 1051, 1155. 
 Mar, Earl of v. his Vassals, 802, 891, 985, 
 
 1100. 
 March, Earl of v. Montgomery, 773. 
 
 '/ V. Sawyer. 440, 1012. 
 
 Marianski v. Cairns, 47. <149. 
 
 /' V. Henderson. 05. 
 
 Marriage v. Lawrence, 091. 
 Marsh V. Coinett. 088. 
 
 « V. Keilh, 1091. 
 Marshall, Andrew, I'etitinner, 702, 1142. 
 
 '/ V. Anderson, 1030, 1171. 
 
 '/ V. Basil, 934. 
 
 // V. Forrest, 918. 
 
 '/ Earl V. Eraser, 282. 
 
 // V. Lyell, 379, 382. 
 
 // V. Lynn, 129. 
 
 Marquis v. Bitchie, 8. 
 Martin, 988. 
 
 « V. Crawford, 5, 649, 737. 
 
 '/ V. M'Lean, 50. 
 
 'f V. liobb, 804. 
 
 // V. Smith, 287, 903, 904. 
 
 // V. Wingate, 389, 500, 512, 514. 
 Marwick v. Norfolk, 221. 
 MasQu V. Earl of Aberdeen, 308, 333. 
 
 r, V. Forrest, 903. 
 
 '/ V. Limbrev. 548. 
 
 ff V. Mcrrv, 1011. 
 
 r> V. Tait.'OS. 
 l^latbcrs v. J.awrie, 97, 108, 077, 690, 736. 
 Mathesou, 1105. 
 
 // V. Boss, 604, 60(), 008, 012. 
 
 Mathieson v. Mathieson, 277. 
 Mathison v. Alison, 245. 
 Maule V. Moncrietf, 141. 
 
 // V. Bobb, 129, 
 
 « V. Somers, 296. 
 Maugban v. Hubbard, 96, 609, 1163. 
 Mavcr v. Russell, 435. 
 Maxton v. Brown, 98, 149. 
 Maxwell. 1184. 
 
 1/ V. Aitkcnhead, 394. 
 
 ri V. Black and Morrison, 58, 69. 
 
 '/ V. Brown. 276. 
 
 '/ V. Buchanan. 852, 873. 
 
 '/ V. Burgess, 122. 
 
 // V. Drumlanrig. 120. 
 
 (/ V. Falconer, 403. 
 
 « V. tiriersou. 504. 
 
 « V. Herries, 308, 318, 325,067, 968. 
 
 " V. Houston, 531. 
 
 '/ V. J^. Innerwick, 711. 
 
 « V, MaxweU, 374, 379, 648, 586, 
 
 737. 758. 
 
 '/ V. E. Nithsdale's Tenants, 700. 
 
 // V. L. Portrack, 708.
 
 INDEX OK CASES. 
 
 Maxwvll V. Kfiil. 095, TO'J. 
 
 V. Welsli, 333. 
 May V. Malcolm. 723, 725, 726. 
 n V. May, 108, 677. 
 n L. V. Koss, 449. 
 Meason Y. D. Quecusbcrry's Exis., 1161, 
 
 1162. 
 Meek v. Dunlop, 429, 440, 444, 721. 
 Meers v. Ansell, 101. 
 Megget V. Brown, 53. 
 Meikle v. Snedden, 63. 
 
 // V. Stewart, 956. 
 
 '/ V. Tennant, 958. 
 Meikleham, 735, 810. 
 IMclrose v. Hastie, 246. 
 Moiu V. Duiise, 762, 767, 779. 
 
 // V. Gray, 894. 
 
 // V. Niddrie, 769. 
 
 '/ V. Towers, 929, 943, 945. 
 Melen v. Andrews, 879. 
 Mcldrum, 723, 985. 
 
 " V. Colquhoun, 170. 
 
 Mellen, 983. 
 Melvil V. Dnimmond, 617. 
 
 n E. Y. E. Perth, 918, 951. 
 
 If Y. Murray, 575. 
 Melville's, Lord, Case, 114, 117, 876. 
 Melville v. Alexander, 285. 
 
 // Y. Crichton, 558, 559. 
 
 // L. v. Douglas' Trs., 506, 515, 517. 
 
 '/ v. Montgomery, 287. 
 
 '/ V. Swinton's Creditors, 708. 
 Melvin v. Nicol. 495. 
 Menzies, 1066. 
 
 n v. Barrv, 1110. 
 
 // V. Duff^ 94, 366. 
 
 ,> v. Hay, 138. 
 
 II V. Morrison, 990. 
 Mercer v. L. Aldie, 399. 
 
 // V. Dalgardno, 277. 
 
 // Y. Reid, 23. 
 
 I, T. Rutherford, 23. 
 IMorchiston v. Robertson, 258. 
 Merry v. Dun, 759, 775. 
 
 II v. Howie, 449, 535. 
 
 n v. Masson, 769. 
 Merse, Synod of v. Scott, 112, 759, 761. 
 Messer v. Simson, 52. 
 Mette v. Dalziel, 317, 347. 
 Mexican Co. v. South African Co., 1169. 
 Meyer v. Sefteen, 103. 
 
 // & Mortimer v. Leunard, 341, 34G, 
 957. 
 Meyers v. Willis, 671. 
 Middlesex Insurance Co. v. Cleugh, 783. 
 Middleton v. Rutherglen, 140, 181, 264. 
 Miles v. Finlavson, 29. 
 Mill V. Nicol, 44, 646, 1065. 
 Millar, 86o, 1043. 
 
 // V. Baird, 319, 340, 651. 
 
 II V. Bonar, 698. 
 
 // V. Fraser, 1023. 
 
 II V. Millar, 706. 
 
 ,1 V. Mitchell, 224. 
 
 JliHur V. Small, 1087, 1124. 
 
 '/ V. Tremanondo, 361, 387. 
 Miller, 865, 983, 100(5, 1027, 1043, 1108. 
 
 '/ V. Bothwell, 553. 
 
 '/ V. Coopc'r, 972. 
 
 '/ V. Dott, 389, 512. 
 
 II V. Edin. & Glas. Rail. Co., 051, 791 . 
 
 II V. Farquharson, 439, 409. 
 
 '/ v. Fortlieringham, 174. 
 
 II v. Fraser, 104, 112, 114, 188, 502, 
 676. 077, 1023, 1149. 
 
 II v. Geils, 05. 
 
 '/ V. Kipi)en, 202, 263. 
 
 II V. Laml^ort, 457, 977. 
 
 '/ V. L. Cullernie, 702. 
 
 II V. Lindsay, 738. 
 
 II V. Little, 375, 431, 521. 
 
 II V. Miller, 123. 
 
 II V. Moifat, 87. 88, 92, 100, 112, 114, 
 409, 053, 833, 852, 870. 
 
 " V. Moodie, Oil. 
 
 '/ V. Olipliant, 135, 883. 
 
 II V. Robertson, 5. 
 
 // V. Royal Bank, 642, 543. 
 
 II V. Travers, 157. 
 
 II v. Ure, 716. 
 Millers v. Baikie, 448. 
 Miller's Trustees, Petitioners, 714. 
 Mills, 82, 1047. 
 
 II v. Albion Insurance Co., 125, 631, 
 817. 873. 
 jliln v. Duchess of Lauderdale, 777. 
 II V. Lord Lauderdale, 757, 770. 
 Milne, 835, 800, 1145. 
 
 // v. Donaldson, 882, 883. 
 
 II V. Forbes, 514. 
 
 // Y. Leisler, 92, 119. 
 
 '/ v. Leys, 109. 
 
 // v. Littlejohn, 19. 502. 
 
 // V. Samson, 114, 151, 152, 175, 177. 
 
 // V. Smith, 514. 
 Milroy, 875. 
 
 // V. Milroy, 591. 
 Milton V. Milton, 1060. 
 
 II L. Y. Lady Milton, 1014, 1184, 
 1020, 1184. 
 Milward v. Forbes, 853, 854, 861. 
 I\lincey v. Dennis, 152, 171. 
 Minnie's Creditors v. Broomfield, 319, 967. 
 Minty v. Donald, 956. 
 Mitclu'll, 714, 1023, 1024. 
 
 Y. Berwick, 113, 383, 873, 1078. 
 
 // V. Cowie, 701. 
 
 II V. Cunningham, 520. 
 
 V. Ferrier, 969, 970. 
 V. Hepburn, 723, 832. 
 
 II v. M'Adam, 308. 
 
 // V. Mackilnay, 967, 968. 
 
 II V. M'Kinlay, 319. 
 
 // V. Miller, 440, 1032. 
 
 // v. Pinkerton, 393, 408. 
 
 /' v. Rankin, 1. 
 
 '/ v. Stewart, 542. 
 
 // v. The Lieges, 764.
 
 INDEX OF CASES. 
 
 Iv 
 
 -Mitrlirll V. Wright, 408, 9o7. 
 MitcJiidson V. MowLray, 401, fi5l. 
 
 '/ V. Nicol, 1147. 
 
 Mitchio V. Duncan, 775. 
 Moclirio, W.i'). 
 Molfat V. Moftat, 317, 324, 709. 
 
 '/ or I\I'Coull, 723. 
 
 " V. K'Kenzic, arjO, 258. 
 
 '/ V. Marshall, 30'J, 334. 
 
 " V. Phin, 384. 
 IMoir V. Dons, 720. 
 Mollison's 1'rs. v. Crawford. 855. 
 Moiuighan, 93, 9G, 1003, 1004. 
 Moucrioff V. Burnett, 270. 
 
 " V. Durham, 330, 331. 
 
 " V. MoniiMninv,408, 425,430,431. 
 
 " V. Waugh, 329. 
 
 Moncur v. Waddoll, 438. 
 Monkton v. Carrnichael, 279, 574. 
 Mouiniu^k v. Kencusky, 911. 
 Monmoutli, D. of v. Suott, 712. 
 Monro, 735, 810. 
 
 '/ V. Aitoji, 255, 266. 
 
 // V. Coutts, 393, 408. 479. 
 
 " V. Crawford, 1052, 1000. 
 
 " V. Gordon, 745, 740. 
 
 // V. M'Keuzio, 1127, 1129. 
 
 '/ V. M'Leod, 932. 
 
 'f V. Monro, 429, 430, 509. 
 
 '/ V. Twistletou, 1070. 
 Montrose Peerage, 094. 
 
 // D. of V. M'Cauley, 803, 892. 
 
 Monymusk, Lord v. Pitarro, 580. 
 Monvpennv v. Black, 939. 
 Moodie, 1110. 
 
 « V. Anderson, 147. 
 
 " V. Moodie, 500, 510. 
 Moody V. Rowell. 1151. 
 Moonie's Crs. v. Broomficld, 941, 943. 
 Moore v. Smith, 879. 
 
 t' V. Young, 924, 930. 
 Montgomerie v. Ainslio, 119, 742. 
 Montgomery, 378, 989, 1020. 
 
 // V. Baglillie's Tenants, 959. 
 
 '/ V. E. Cassili-s, 1118. 
 
 " V. Fowles, 304. 
 
 " V. M. Lothian, 478, 480. 
 
 '/ \. M'Clung, 1182. 
 
 " V. Montgomery, 727. 
 
 Montgomery's Executors, 381. 
 Monteith v. Henderson, 505, 1000. 
 V. Itobb, 361, 302. 
 
 i> v. Smith, 930. 
 
 Moran, 79, 82, 878. 
 Moray, E. v. Dunbar, 120. 
 Moreton v. Lockhart, 791. 
 
 u V. Macdonald. 1130. 
 Morgan v. Bridges, 857. 
 
 t, V. Hunter, 1054. 1132. 
 
 V. Jlorris, 3, 41, 43, 45, 47, 02, 91. 
 075, 070, 077. 
 i\Iorison v. Bruce, 402. 
 Moristoun v. Nisbet's Tenants, 281. 
 Merries v. Glen, 611. 
 
 Morris v. Davies, 239, 240, 241. 
 
 " V. Monro, 871, 932, 933. 
 
 " V. Morgan, 3, 62. 
 J!orrisonv. Allanlice, 170. 
 
 " V. Cowan, 1131. 
 
 « V. L. Salton, 444. 
 
 " V. MacLean's Trs., 19, 24, 444, 
 653,655, 784, 785, 1158. 
 
 '/ V. ]\Iiller, 708. 
 
 'I V. Morrison, 509, 570. 
 
 « V. Munro. 639. 
 
 " V. Ni.sbet, 445, 534. 
 
 " V. Kamsav, 445, 706. 
 & Co. V. iieid, 1134. 
 V. Kobertsr)n, 124, 481. 
 
 " V. E. Leven, 746. 
 
 '/ V. Forbe.-i. 727. 
 
 V. Kirk, 236, 237. 
 
 '/ V. Lennard, 989. 
 
 .' V. Tumour, 473. 
 
 '/ V. Watson, 1127. 
 Mortimer v. Archibald, 957, 958. 
 
 i> V. M'Nicol, 1152. 
 
 f> V. Jlortimer, 825, 826, 858. 
 
 V. Shortall, 139. 
 
 // V. Somerville, 76, 856, 1088. 
 
 Morton v. Hunters, 76, 704. 
 
 // V. Hunters & Co., 102, 161, 162, 
 164, 453, 708, 710. 
 
 '/ V. Lord Clerk Register, 742, 755, 
 811. 
 
 // V. Scott, 793. 
 
 " V. Young, 524. 
 
 " E. V. Stewart, 23, 55. 
 Moses V. Craig, 138. 
 Mossam v. Dame Theodosia Ivy, 563. 
 Motteram v. Eastern Counties Eail. Co., 
 
 Ill, 749. 
 Mowat V. Banks, 298, 300. 
 
 '/ V. E. Northesk, 948. 
 
 " V. L. Xorthesk, 938. 
 Mountquhannie, Lady v. St Andrews, 705. 
 Muckarsie, 800. 
 
 // V. Wilson, 1061, 1062. 
 
 Mudie v. Ochterlonv, 375, 379. 
 Muir, 59, 1009, 1027, 1047. 
 
 " V. Anderson, 1161. 
 
 " V. Braidwood. 55, 431. 
 
 v V. Crawford, 288, 500. 
 
 // V. Cunningliani, 300. 
 
 " v. Gemmell. 135, 382, 830. 
 
 '/ V. Hood, 716. 
 
 // & Co. V. M 'Donald, 260. 263. 
 
 '/ V. Muir, 1136. 
 
 " V. Stevenson, 377. 
 
 '/ V. Wallace, 496. 
 Muirhead, 1071. 
 
 '/ V. Chalmers, 304, 393. 
 
 '/ V. Clelland, 1029. 
 
 '/ V. Darnston, 277. 
 
 '/ V. Town of Haddington, 344 
 
 872. 
 
 " V. Muirhead, 825. 
 
 Muller V. Robertson, 28.
 
 I VI 
 
 INDEX OF CASES. 
 
 Mimn V. Godbold, 107, 115. 
 
 " V. JI-Gregor, 1128. 
 ]\runro V. Graliam. 328. 
 Murcliie v. Jlacfarlane, 542, 543. 
 Murdocli & Co. v. Lee, 49. 
 
 V. JMoir. 501. 510, 512. 
 '/ V. Wyllie, 381. 
 Mure. 1151. 
 
 '/ v. Mure, 549, 584. 
 Murray, 58, 753, 1145. 
 " V. Burnett. 910. 
 
 Dean of v. L. Coxon. 893, 896. 
 V. Elliot. 882. 
 " V. Fleming, 419, 423. 
 " V. Jones. 148. 
 
 '/ V. Laurie's Trs., 870, 918,936,945. 
 " V. Liston, 169. 
 
 V. Murray, 272, 525, 626, 707, 
 912, 922. 924, 947, 972, 
 1169, 1180, 1184. 
 '/ V. Phillips, 976, 977. 
 " V. Semple. 447. 
 " V. Shaw, 705. 
 '/ V. Sinclair, 1041. 
 '/ V. Smith, G18. 
 rr V. Taylor, 266. 
 
 V. Thomson, 308, 401 . 
 n V. Tod, 22, 1152, 1183. 
 t, V. Trotter, 323. 
 Mutrie, 365. 
 Myres v. Sari, 151, 175. 
 
 Nairn v. M-Intosh, 883. 
 Nairne v. Drunimond, 944. 
 
 „ V. Ogilvie. 941, 943, 946. 973, 1029. 
 Napier v. Balfour, 330, 332, 342. 
 
 // V. Carson, 599, 609, 709. 
 
 // V. Dick, 373. 
 
 /, V. E. of Eglinton, 393, 577. 
 
 II V. Graham, 318. 966. 
 
 // V. Sanderaan, 259. 
 
 II V. Smith, 348. 
 Napiers v. Lord Elpldnstone, 722. 
 Napier's Trs. v. Morri.son. 247, 248. 
 Nasmyth v. Bower, 485, 698. 
 
 I, V. Hare. 464, 471, 472, 473, 479, 
 
 546, 771. 
 
 // V. Lawrie, 259. 
 
 Nat V. Coon. 624. 
 Nathan v. Jacob, 858. 
 National Bank v. Forl)Cs, 1036. 
 
 II V. Heath, 795. 
 
 „ V. Hojie. 305, 308, 337. 
 
 // Exch. Co. V. Drew, 789, 802, 873. 
 
 // V. Easton, 466. 
 
 I, V. Glas. & Kilmarnock 
 
 Bail. Co., 790, 791. 
 Neil V. Vashon, 373, 501. 
 Neill and Bruce, 983. 
 
 II V. Andrew, 382. 
 
 '/ V. Caesilis, 366, 516. 
 
 II & Co. V. Campbell and Hopkirk, 931. 
 
 ,/ // V. Hopkirk, 330, 342. 
 Neilson v. Leighton, 177. 
 
 Ncilson V. Jlackcnzie, 109. 
 
 // V. liitchie, 52. 
 Newbottle, Lord v. Simpson, 713. 
 Newlands, 1143, 1144. 
 Newmills v. Smiths, 288. 
 Newry, &c.. Railway Co. v. Graham, 1108. 
 Newton v. Collogan, 476. 
 Nicol V. Eraser, 601. 
 
 " V. Law, 952. 
 
 '/ V. Sykcs, 1137. 
 Nicholls V. Dowding, 869. 
 Nicholson v. Smith, 860. 
 Nicolson V. Chancellor, 740. 
 
 '/ V. M'Alister, 50, 890, 985. 
 
 " V. Macalister's Trustee, 325. 
 V. M'Leod, 316, 926. 
 
 " V. Monro, 330. 
 
 " V. JIurray, 347. 
 
 '/ V. Nicolson, 828, 990, 991, 1168, 
 1171. 
 Nimmo, 591. 
 
 " V. Sinclair, 774. 
 
 II V. Stewart, 29, 607, 641, 738. 
 Nisbet V. Baikie, 323, 326. 
 
 '/ V. Culleu, 828, 829. 
 
 " V. Hope, 740. 
 
 // V. Johnston, 286. 
 
 II V. M'Clelland, 830, 834. 
 
 '/ V. Newlands, 500. 
 
 // V. Short, 394. 
 
 // V. Smith, 288, 289. 
 
 II V. Taylor's Exrs., 924. 
 
 II and Romanes v. Nicoll, 302. 
 Nisbet's Trustee v. Morrison, 869, 870, 
 
 930, 931, 936. 
 Nithsdale, Earl v. Westraw, 746, 747. 
 Niven, 1029, 1033. 
 Noble V. Scott, 294, 806, 917. 
 Nobles V. Armstrong, 324, 326. 
 Nodin V. Jlurrav, 108. 
 Norkat V. Home. 398, 400. 
 Northesk, Earl, 485. 
 
 II V. Cheyne, 1081. 
 
 Norman, 1018. 
 Norris, 231. 
 
 II V. Wood, 492. 
 North British Railway v. Tod, 124, 141, 
 
 142, 143. 
 Nortliern Railway Co. v. Inglis, 97. 
 Norton's Trustees, Baron, 144. 
 
 II II V. Ly. Menzies, 
 
 618. 
 Nerval v. Hunter, 701. 
 
 I, V. Ramsay, 478, 481, 582. 
 Nory V. Meikle, 776. 
 
 Ochiltree V. Miller, 386, 
 O'Connor v. Malone, 656. 
 Officers of State v. Alexander, 833, 1112. 
 II II V. Earl of Stirling, 801 . 
 
 O'Neil, 989. 
 O'Neills, 1032. 
 Ogle V. Smith, 924. 
 Ogilvie, 715.
 
 INDEX OF CARES. 
 
 Ivii 
 
 Ogilvie V. Buillio, 450. 
 
 " V. Lord Biilmerino, 576. 
 
 " V. Din's Heirs, 484. 
 
 " V. Magistrates of Edinburgh, 93, 
 G87. 
 
 '/ V. Findlittcr, 425. 
 
 " V. Kor, 591. 
 
 " V. Moss, 488. 
 
 « V. Kobertson, 532. 
 Ogiivy V. Cuniniinj,', 144. 
 
 '/ V. Murray, G14. 
 
 » V. Napier, 774. 
 
 " V. Scott, 28, 524. 
 
 » V. Smart, 518. 
 
 « V. Stewart, 3SI2, 393. 
 
 « V. Tavlor. (iOl, G12. 851. 
 Oliver, 90, 96, 1104. 
 01ii)liant V. Ker, 928. 
 
 '/ V. Mona^'an, 364. 
 
 V. Peebles, 539. 
 Omeron v. Dowrick, 637. 
 Ommancy v. Stilwell, 231. 
 Onions v. Tyrer, 548. 549. 
 Ord V. Barton, 668. 
 " V. Dufls, 330, 348. 
 // V. Innes, 277, 278. 
 «/ V. M'Calluni, 645. 
 Ormiston, Lord v. Hamilton, 334, 443. 
 Ormond v. Wylic, 89. 
 Orr V. Wallace. 448. 
 Orrok v. Gordon. 801. 
 
 // V. Peter, 720, 725. 
 Oswald V. Lawrie, 141, 690, 691. 1120, 
 
 1131. 
 Oxenden v. Chichester, 163. 
 Oxent'ord v. Cockbiirn, 384. 
 Oxford Poor Rate, The, 634. 
 
 Padon V. Govan, 957. 
 
 Pagan v. Wylie, 542. 
 
 Paip V. Newton, 1060. 
 
 Palmer v. SteM-art, 648. 
 
 Pampin v. Melville, 370. 
 
 Panmure, Lord v. Crockat, 524. 
 
 Panton v. Gillies, 469. 
 
 Paris V. Smith, 106, 112, 749. 
 
 Park V. University of Glasgow, 514. 
 
 II V. Langland's Representatives, 284. 
 
 '/ V. Mackenzie, 496. 
 Parken v. Royal Exchange Assurance Co., 
 
 631. 
 Parker v. Imperial Fire OfiBce, 852. 
 Parkhurst v. Lowten, 1170. 
 Parkins v. Bainbridge, 471. 
 
 » V. Ilawkshaw, 874. 
 Parlby v. Parlby, 1147. 
 Parry, 886. 
 Parton v. Cole, 94. 
 Paterson, 42, 041, 1008, 1145. 
 
 » v. Blair. 696. 
 
 11 V. Bonar, 502. 
 
 " v. Cochrane. 329. 
 
 '/ V. Duncan. 976. 
 
 n V. Eccles, 658. 
 
 Paterson v. Edington, 366, 373, 374. 
 " V. Grcig, 273. 
 
 V. Hall, 1154. 
 
 V. Houston, 745, 771, 780, 852. 
 853. 
 " V. Inglis, 472. 
 
 V. M'Keuzie, 331, 385, 1182. 
 V. Mitchell, 558. 
 V. Ritchie, 60. 
 
 V. Shaw. 20, 27, 54. 77, 817. 
 » V. Smith, 436. 
 
 » V. Strachan, 340. 
 
 " V. Taylor, 931. 
 
 II V. Walker, 68. 332. 
 // V. Wallace. 69. 
 
 // V. Wright. 389, 510. 
 
 Paterson's Trs. v. Johnston. 87. 
 Patrick V. Godwin, 828, 831. 
 Patterson v. Robertson, 120. 
 Pattison v. Cainjjbell, 259. 
 Pattinson v. Robinson, 793, 914, 915, 924. 
 Paton, 1110. 
 
 'I V. E. Zetland, 606. 
 II v. Paton, 789, 796, 800. 
 " v. Pitcairn, 932. 
 Paton's Creditors, 425. 
 Patons v. Hamilton, 165. 
 Patrick v. Watt, 283. 
 Paul v. Alison, 317. 
 
 " v. Barclay and Curie, 1001. 
 
 " V. Commercial Insurance Co., 806, 
 
 1054. 1136. 
 " V. Gibson. 977. 
 " V. Gilmour, 236, 904. 
 " V. Harper, 556, 559. 
 " V. Laing, 910, 912, 1089. 
 • v. Meek, 107. 
 
 '/ V. Old Shipping Co., 1054, 1134. 
 Paxton V. Courtney, 152. 171. 
 II V. Forster, 308, 350. 
 " V. Paxton, 10. 
 " V. Pophani, 137. 
 Peacock v. Glen, 53. 
 
 '/ V. Smiles, 949. 
 Pearse v. Pearse, 1085. 
 // V. Turner, 669. 
 Pearson v. Corrie, 165. 
 
 // V. Walker, 102, 106. 
 Peat v. Wilson, 250. 
 Peddio v. Doigs, 536. 
 Pedley v. Wcllesley. 1008. 
 Peebles v. Town of Perth, 872. 
 Pemberton v. Pomborton, 548. 
 Pender, 59, 1043, 1045, 1168. 
 Penman v. Watt, 1181. 
 Pennycook v. Campbell, 478. 
 IT V. Thomson, 424. 
 
 Pentland v. Bell. 253. 254. 256^ 266. 
 II v. Hare, 419, 420, 423. 531,532. 
 '/ v. Scott, 498, 609. 
 
 Peppermill v. Room, 757, 776. 
 Percy v. Meikle. 481. 
 Perry v. Bouchier, 600. 
 II V. Meikle, 448.
 
 Iviii 
 
 INDEX OF CASES. 
 
 Perryman v. M'Clymont, 428, 429, 977. 
 Peter v. Mitc-liell, 785. 799. 
 
 >i T. Ross. 426. 721. 
 
 n V. Smith. 846. 
 
 '/ V. Terrol, 101, 108, 175. 
 Petrie v. Lithgow, 436. 
 Pharnehc'st v. Moscropt, 1 24. 
 Phccnix Insurance Co. v. Young, 910, 925. 
 Philip V. Cheap, 435, 497. 
 
 '/ V. Gordon, 8. 
 
 » V. Milne, 311. 
 
 » V. Heritors of Cniden, 644, 737, 
 1064. 
 
 ' V. Pitcairn, 527. 
 
 n V. Cross, 1181. 
 Phillippg V. Briard, 152, 173. 
 Phillpots T. Eae, 878. 
 Phipps V. Tanner. 541. 
 Place V. Dennison, 976. 
 Plauche v. Fletcher, 002. 
 Plenderleith or Dewar, 842. 
 Plunkett V. Cobbett, 1007, 1073. 
 Piery v. Ramsay, 428, 429. 
 Pike, 984. 
 
 Prickhard v. Sears, 857. 
 Pirie, 981. 
 Pitcairn. 732. 
 
 Pitfoddles, Lord v. Lord Glenkardy, 939. 
 Pitmedden. Ladv v. Gordon. 591. 
 Pitts V. BeckiU, 107. 
 Pitullo V. Forrester, 538, 539. 
 Pollard V. Wybourn, 858. 
 Pollock V. Giimour, 126, 148, 160. 
 
 n y. King, 834. 
 
 // V. M' Andrew, 98, 122, 129. 
 
 " V. Mather, 54. 
 
 '/ V. Morris, 114. 
 
 f> V. TurnbuU, 148. 
 Porteous v. Bell, 445. 
 
 « V. Fordyce, 938. 
 
 // V. Lord Harries, 394. 
 
 V. M'Beath, 303, 390, 830. 
 Porter, in re, 749. 
 Porterfield v. Stewart, 568. 
 Portliouse v. Parker, 376. 
 Potts, 913. 
 
 t, V. Pollock, 1144. 
 Polwart, Lord v. Halvburton, 398, 399. 
 Powel V. Edmunds. 122. 
 Power, Petitioner, 755. 
 Pratt V. Abercromby, 500. 
 Preistnell v. Hutcheson, 1125. 
 Prershard v. Brackenridge, 252. 
 Prescott V. Flinn, 375. 
 Preeton v. Scott, 282, 480. 
 Preston's Trs. v. Preston, 365. 
 Price V. Page, 162. 
 
 // V. Ramsay, 878. 
 Primrose v. Dury, 706. 
 
 ff V. Lord Rossyth, 499. 
 Pringle, 1191. 
 
 // V. Biggar, 941,943. 
 V. Campbell. 940. 
 V. Keill, 431. 
 
 Pringle v. Mack, 776. 
 
 " V. Manderston. 964. 
 
 " V. Murray, 283. 707. 
 
 " V. Pringle, 278. 
 V. St Clair, 776. 
 Pringles v. Gribton, 244. 
 Proctor V. Carnegie, 708. 
 Promoter Life Assurance Co. v. Barrie's 
 
 Representatives, 856. 
 Proudfoot, 729. 
 Provan v. Gray, 375. 521. 
 
 " V. Tclfer's Trs., 788, 1090. 
 Pullars V. Walker, 9. 
 Punton, 1191. 
 
 Purcell V. Manamara, 10, 14. 
 Purdie v. Steel, 248. 
 Purves, 641, 1141. 
 
 " V. Cairns, 981. 
 Purves' Trs. v. Purves' Exrs., 617, 618, 
 
 619, 623, 624, 627, 629. 
 Purveyance v. Thomson Cuningham, 697. 
 Pym V. Campbell, 120, 136. 
 Pyne v. Pyne, 1000. 
 Pyper v. Thomson, 8. 
 
 Queen, 1058. 
 
 Queen's Case, 100, 1140, 1143. 
 
 Queensberrv, Duke of v. Barker, 439, 981, 
 
 982. 
 Queensferry Sea Box v. Stewart, 438. 
 
 Eae V. Hay, 9. 
 
 " V. M'Lay, 68. 
 Rae's Creditors, Trs. for v. Gordon, 409. 
 Raillon v. Mathews, 66. 
 Eait V. Galloway, 505, 516, 883. 
 
 '/ V. Primrose, 95, 100, 121. 
 Rajah of Coorg v. East India Co., 1069, 
 
 1070. 
 Ralston v. Lament. 303. 
 
 '/ V. Rowat, 1036. 
 Ramage v. Charteris, 334. 
 Eambert v. Coken, 609. 
 Ramsay, 712, 848. 
 
 V. Aiken, 201, 263, 870, 871. 
 
 " V. Butchers of Perth, 381. 
 
 " V. Cochrane, 1131. 
 
 " V. Lord Craigic, 1118. 
 
 " V. Kinloch, 246. 
 
 " V. M'Lellan, 4. 
 
 " V. Maule, 581. 
 
 '/ V. Nairne, 25, 40, 1141, 1183. 
 
 '/ V. Petti grew, 727. 
 
 « V. Wilson, 244. 
 
 '/ V. Wintoun, 288. 
 Ramsbottom v. Mortley, 95, 613. 
 
 " V. Tunbridge, 94. 
 
 Randal v. Innes, 353. 
 Randolph v. Gordon, 558. 
 Ranken v. Alexander, 641. 
 
 " V. Drew, 41. 
 Rankin v. Dickson, 1040. 
 Rankino v. Adair, 319, 967, 968. 
 
 '/ V. Corson, 726.
 
 INDEX OF CASES. 
 
 lix 
 
 Ilaukiiie v. Ruukiiu-, 1 0-0. li. v. 
 
 V. Keid, ilH, 4iM, 4"Jo. H. v. 
 
 » V. Williuiiisoii, 430. K. v. 
 
 Kiitcliffo, 8GG. K. v. 
 
 Ifiitcliir V. Kiitclift' aiid Anderson, 74"J. K. v. 
 
 Uatlibone v. Cilkiiuy, 4. li. v. 
 
 Kattrays, 768. K. v. 
 
 Kawlins v. llickards, 099. K. v. 
 
 Ra\v.sou V. Johnston, 1152. li. v. 
 
 V. Walker, 120. K. v. 
 
 Read v. Tasstr, 688, 090. li. v. 
 
 Rt.'uson V. Tranters, 845. li. v. 
 Kedpath v. Forth Marine Insurance Co., li. v. 
 
 834. K. V. 
 
 Rood V. Deere, 608. R. v. 
 
 Reeves, 02. li. v. 
 Reid, 31, 38, 844, 847, 984, 988, 989, 997. R. v. 
 
 " V. Earner's Heir, 932, 933. li. v. 
 
 « V. Batte, 98. R. v. 
 
 " V. Baxter, 427. R. v. 
 
 '/ V. Binning, 965. R. v. 
 
 " V. Brown, 226, 231, 451. R. v. 
 
 " V. Duff, 708, 1022. R. v. 
 
 '/ V. Grindlay, 433, 702. R. v. 
 
 » V. Henderson, 371. R. v. 
 
 " V. Uupe, 923. R. v. 
 
 » V. Ht)skins, 75. R. v. 
 
 " V. Hutchison, 109, 110. R. v. 
 
 '/ V. Jobson, 236, 242. R. v. 
 
 " V. Johnston, 237. R. 
 
 '/ V. Kedder, 530, 537, 538, 539. R. 
 
 '/ V. Ker, 304. R. 
 
 '/ V. Laing, 304. R. 
 
 « V. Lamb, 749. li. 
 
 // V. Lanf,', 828. R. 
 
 " V. Ogilvie, 282. R. 
 
 » V. Froudfoot, 388, 391. R. 
 
 '/ V. Stoddart, 817, 873. R. 
 
 " V. Reid's Trustees, 434. R. 
 
 " and Co. v. Sinclair, 1.56. R. 
 
 " V. Walker, 125. R. v. 
 
 Redford v. Borley, 105. R. v. 
 
 licdpath V. Huntley, 497. li. v. 
 
 Rennie, 24, 1142. R. v. 
 
 Renny v. Cuthell, 1182. R. v. 
 
 » V. Will, 922, 944, 1002. R. v. 
 
 Renton v. Lady AiUni, 589. R. v. 
 
 " V. Anstruther, 700, 709. R. v. 
 
 '/ V. Fullurton, 839. R. v. 
 
 '/ V. North British Railway, 142. R. v. 
 
 » L. V. L. Wedderburu, 932, 939. R. v. 
 
 Re.sp V. Fields, 884. U. v. 
 
 Reusse V. Meyers, 009. R. v. 
 
 Reynolds v. Syme, 031. R. v. 
 
 Reg. V. Hall, 873. R. v. 
 
 " V. Hill. 986, 988, 1056. H. v. 
 
 '/ V. Inhabitants of Bedfordshire, 77. R. v. 
 
 » V. Leathaiu, 1091. R. v. 
 
 " V. Mellor, 640, 048. R. v. 
 
 // V. Parish, 375, 431, 521. R. v. 
 
 R. V. Adey, 1171. R. v. 
 
 R. V. Aickes, 088. R. v. 
 
 R. V. Appleby, 879. R. v. 
 
 R. V. Baldrv, 803. R. v. 
 
 Ball, 87. 
 
 Baynos, 1169. 
 
 Bellringer, 169. 
 
 Benedict, 247, 248. 
 
 Blake, 875. 
 
 Burdett, 8. 
 
 Burke, 38. 
 
 Butcher, 867. 
 
 Cain, 867. 
 
 Castlctou, 100, 115. 
 
 Chevert(jn, 803. 
 
 Clarke, 851. 
 
 Clinch and Macklay, 192. 
 
 Coppull, 105. 
 
 Court, 804. 
 
 Courvoisier, 187, 195, 199. 
 
 Culpepper, 110. 
 
 Do Bereiiger, 035. 
 
 Drew, 862, 864. 
 
 Duchess of Kingston, 1095. 
 
 Edgar, 869. 
 
 Elridge, 868. 
 
 Enoch, 862. 
 
 Falconer and Bond, 808. 
 
 Felton, 888. 
 
 Ferric, 656. 
 
 Franklin, 636. 
 
 Fursey, 113. 
 
 Gardner, 037. 
 
 Giizard, 1064. 
 
 Gilhani, 863, 1095. 
 
 Gill, 189. 
 
 Lord G. Gordon, 030. 
 
 Gore, 1006. 
 
 Gould, 867. 
 
 Grant and Craig, 867. 
 
 Greene, 636. 
 
 GritBn, 807, 1093. 
 
 Guttcridgo, 1139. 
 
 Hardy, 875. 1071. 1167. 
 
 Harriot, 803. 
 
 Hay, 1093. 
 
 Plazy, 7, 10. 
 
 Hind, 1139. 
 
 Hodges, 202, 215. 
 
 Holt, 57, 037. 
 
 Holy Trinity, 98. 
 
 Hunt, 37, 105. 
 
 Ings, 115. 
 
 Inhabitants of Castle Morton, 604. 
 
 Inhabitants of Laugunno, 134. 
 
 Inhabitants of St Paul's, 612. 
 
 James, 807. 
 
 Jeffries, 035. 
 
 Jervis, 10. 
 
 Jones, 867. 
 
 Kennilworth, 114. 
 
 Laugher, 864. 
 
 Lockhart, 867. 
 
 Looker, 188. 
 
 M'Kenna, 875. 
 
 Mainwariug, 749. 
 
 ]\Iannings, 195, 198, 19'.t, 207, 876, 
 
 Miirsh, 215.
 
 Ix 
 
 INDEX OF CASES. 
 
 K. V. Martin, til. 
 K. V. L. Melville, C3G. 
 K. V. Miller. 169, 171. 
 K. V. Mills, 802. 
 R. v. :Moore, 656. 
 K. V. Mours. 98. 
 K. v. Mosey, 867. 
 K. V. Morgan, 1143. 
 R. V. Morton, 802. 
 R. V. Mountford, 166. 
 R. V. Norcott and Okeman, 191. 
 R. V. Nicholas, 984. 
 R. V. O'Connell, 98, 105. 
 R. V. Osborne, 83. 
 R. V. Oxford, 61. 
 R. V. Parker, 803. 
 R. V. Plumer, 877. 
 R. V. Pountuey. 864. 
 R. V. Pressly, 90. 
 R. V. L. Preston, 1097. 
 R. V. Reading, 240. 
 R. V. Roberts. 37. 
 R. V. Rogers, 7. 10. 
 R. V. Roui>ell, 887. 
 R. V. Rush, 191, 192, 195. 
 R. T. St Martin's. Leicester, 1163. 
 R. V. Scott, 170, 1109. 
 R. V. Sergeant, 1005. 1006. 
 R. V. SerA-a, 991. 
 R. V. Sheridan and Kirwin, 98. 
 R. V. Sippet, 867. 
 R. V. Simons, 884. 
 R. V. Sourton, 240. 
 R. V. Sparkes, 1093. 
 R. V. Spilsbury, 867. 
 R. V. Stone, 808, 875. 
 R V. Stripp, 863. 
 R. V. Stubbs, 996. 
 R. V. Sutton, 635. 636. 
 R. V. Tarrant, 96. 
 R. V. Taylor, 804, 991. 
 R. V. Tliistlewood, 13, 115. 
 R. V. Tippets, 868. 
 R. V. Turner, 9, 875. 
 R. V. Warlo, 109, 171. 
 R. V. Wakefield, 1006. 
 R. V. Walker, 83. 
 R. V. Waricksliall, 867. 
 R. V. Watson, 37, 108, 875. 
 R. V. Wheeling, 808. 
 K. V. White, 808. 
 R. V. Wiiitworth, 1139. 
 R. V. Wilson, 886. 
 R. V. Wink, 83. 
 R. V. Woodfall, 44, 66, 1066. 
 R. V. Wright, 1159. 
 R. V. Wylie, 37. 
 
 Rhind v. Commercial Bank, 119, 
 699. 
 u V. Mackenzie. 388. 
 Rich V. Coe, 670. 
 
 Richardson, Loch, & Maclaurin v. 
 Merrv and The Shotls Ir 
 1199.' 
 
 Richardson, Loch, & Maclaurin, v. Bclha- 
 
 ven, 332. 
 Ricliardson, 187, 190, 190, 202, 1024. 
 V. Biggar, 421, 531. 
 „ V.Forbes, 109, 113. 
 
 // V. Forbes' Trustee, 803. 
 
 » V. Haddington, 356. 
 
 „ V. Michie, 403. 
 
 ,t V. Newton, 554. 
 
 u V. Watson, 159. 
 
 Richraan v. M'Lachlan, 031. 
 Kicluaond v. Pelican Insurance Co., 259. 
 Riddell v. Scott, 528. 
 Riddick v. Wightman, 132. 
 Riddle V. Inglis, 579. 
 Riddoch v. Younger, 137. 
 Rigg V. Durward, 521. 
 Piiggs V. Drummond, 795. 
 Right V. Price, 425. 
 Riley V. M'Laren, 890, 918, 922, 985. 
 Rintoul V. Buyter, 470. 
 Rippinier v. Wright, 004. 
 Rires v. Rires, 520. 
 Ritchie v. Cunningharae, 237. 
 „ V. Ferguson, 40, 374, 648. 
 // V. Lang, 609. 
 « V. Little, 294. 348. 349. 
 „ V. Lyall, 921. 
 // V. M'Kay, 915, 945. 
 '/ V. Pilnier, 718. 
 « V. Ritchie, 114, 278. 
 Robb's Sequestration, 1117. 
 Robb Y. Campbell, 800, 1179. 
 
 II V. Forrest, 612. 
 Roberts v. Allatt, 1170. 
 II v. Doxon, 103. 
 // V. Malston, 28. 
 Roberton v. Roberton, 222, 227, 520, 618. 
 Robertson, 84, 559, 843, 846, 856, 863, 
 805. 
 V. Abercrombie, 440. 
 V. Allardice, 1120, 1123. 
 V. Annan, 201, 541, 830. 
 V. M. of Annandale, 329, 353. 
 
 354. 
 V. D. Athol, 1053. 
 V. Baillie, 520. 
 V. Barclay, 819. 
 V. Baxter, 525, 859. 
 V. Bisset, 487. 
 
 Y. Burdekin, 258, 268, 354,631. 
 V. Clarkson, 312, 957, 969. 
 Y. Duff, 145, 383. 
 V. Dunbar, 1004. 
 V. Ettles, 597. 
 V. Ferguson, 113. 
 V. Fleming, 42. 
 474^ H V. French, 140. 
 
 V. Galloway, 510. 
 V. Gamach, 0. 
 V. Gordon, 750, 1152. 
 James " v. Gow, 148. 
 
 on Co " v. riyndman, 758, 709, 773, 
 
 854, 855.
 
 INDEX OF CASES. 
 
 Ixi 
 
 Robertson v. Barouess Keith, 114'J. 
 
 // V. Ker, 430, 444. 
 
 '/ V. M'Caig, 444. 
 
 " V. Mackintosh, o'23. 
 
 '/ V. MiiL-kt'iizie, 1048, IH'J. 
 
 '/ V. Mason, 1177, 1171>. 
 
 V. (J^ilvie, GUU. 
 V. Ovilvy's Tr.s., 144, 421, 470, 
 
 471, 522, 531, 532, (J18. 
 V. Ogle, 8. 
 V. I'utrie, 237, '.•04. 
 
 " V. Ramsay, 4'J, 507. 
 
 V. Roburt.son, 121, 1198. 
 
 " V. Royal Assiiciatiuu, 332. 
 
 V. Thoiu, 400, 800, 944. 
 
 '/ V. Vaughtoii, 90. 
 
 " V. Youug, 431. 
 
 II and Co. v. Ruutledge, 601. 
 
 Robertson's Creditors v. Musou'a Diapo- 
 
 nees, 017. 
 Robins v. Dolphin, 024. 
 Robinson v. Bland, 031. 
 
 II V. Vornon, 009. 
 
 '/ V. Witemburg, 426. 
 
 Robison, 723. 
 
 '/ V. Rae, 384. 
 
 " V. Robison, 105, 106. 
 V. White, 1060. 
 Robson V. Alexander, 851, 854, 860. 
 Rodger v. Kay, 188. 502. 
 Rodgers, 718. 
 
 // V. Harvie. 23, 55, 247. 
 Roe V. Davis, 107. 
 Roger, 1000. 
 
 '/ V. Cooper, 921. 
 Rogers v. Cathcart, 354. 
 
 " and Co. v. Murduch, Robertson, 
 and Co., 544. 
 Rollands v. Rollaud, 435, 443, 497. 
 RoUo V. Simpson, 279. 
 Romano. Lord v. Nisbet, 393, 394. 
 Ronald, 112, 718, 724, 758, 773. 
 
 » V. Robertson, 051. 
 
 // V. Sang, 773, 775. 
 Rose V. Gollon, 95, 101. 
 
 '/ V. Grant, 788, 800. 
 
 '/ V. Juuor, 77, 1027, 1057. 
 
 // V. Mackenzie, 1129. 
 
 11 V. M'Leay, 13, 878. 
 
 II V. M-Leod, 290. 
 
 '/ V. Medical Invalid Insurance Com- 
 pany, 7y5, 1074. 
 
 II V. Robertson, 27. 
 Rosenberg, 815, 1123. 
 Ross, 730, 851, 805, 1031, 1094. 
 
 '/ V. Aglionby, 436. 
 
 » V. Hain, 590. 
 
 « V. Baxter, 558. 
 
 H V. Crawford, 385. 
 
 '/ V. Elliot, 395. 
 
 " V. Findlater. 051. 
 
 " V. Fisher, 112, 701. 
 
 '/ V. Fleming, 328. 
 
 " V. Forbes, 1127. 
 
 Ross, Bishop of v. FouUcr, 527. 
 // V. Fra.ser, 904, 1048, 1198. 
 '/ V. (iardin, 532. 
 'I V. Gray, 242. 
 " V. Home, 408. 
 '/ V. M'Beau, 07, 09. 
 '/ V. M'Leay, 787. 
 '/ V. M'Vean, 03, 69. 
 II V. MacLeod, 302. 
 '/ V. Miller, 138, 558. 
 " V. Mitchell, 835. 
 '/ V. Munro, 50. 
 " V. Robertson, 303, 308. 
 » V. Ross, 354, 447, 448, 501, 018, 747, 
 
 753, 794. 
 '/ V. Master of Saltoun, 329, 330. 
 '/ V. Shaw, 334. 
 II V. Steven, 000. 
 '/ V. Stirling, 123. 
 '/ V. Waddell, 501. 
 // V. Ward, 1033. 
 i> V. Webster, 012, 733. 
 Rosyth, Lord v. Wood, 281, 282. 
 Rothes, Earl v. Grant, 574. 
 " V. Leslie, 470. 
 
 Rouatt, 88, 1123. 
 
 Rough V. Gt. Northern Rail. Co., 80, 81. 
 Routledgc v. Carruthers, 235, 238, 240. 
 Rowallau, Lord v. Muir, 919. 
 Rowat v. Whitehead, 1101. 
 Row v. Dick, 475, 483. 
 
 '/ V. Row, 274. 
 Rowc V. Brentou, 103. 
 Rowland v. Stevenson, 924. 
 Roxburgh Case, 147, 149. 
 Roxburghe, D.of v. Chatto, 87, 1081, 1087. 
 " v. Ker, 701. 
 
 " V. Robertson, 171, 172. 
 
 Roxburghe's Trs., Duke of v. Young, 769. 
 Roxburgh, Procurator-Fiscal of v. Kerr. 
 
 500, 615, 516. 
 Roy V. Campbell, 304, 308. 
 II V. Thomson, 317, 347. 
 Royal Bank v. Broughton, 823, 872. 
 
 II V. Smith & Co., 031. 
 
 Royle V. Hamilton, 147. 
 Ruddiman v. Merchant Maiden Hospital, 
 
 424. 
 Rue V. Houston, 527. 
 Rule V. Duke of Hamilton, 950. 
 Rules V. Craig's Crs., 447, 448, 451. 
 Rule's Reps. v. Mags, of Stirling, 247. 
 Runciman v. Craigie, 124. 
 Russell, 645. 
 
 " V. Earl of Argyle, 330. 
 V. Campbell, 242, 243. 
 V. Crichton, 5. 1021. 
 » V. Dunbar, 284. 
 " V. Farie. 313. 
 " V. Eraser, 398, 493. 
 " V. Freen, 146. 
 " V. Glon, 857. 
 
 V. Kirk, 433, 702. 712. 
 " V. Listou's Trustee. 1030.
 
 Ixu 
 
 INDEX OF CASES. 
 
 Ku^sell V. Mill. 489, 490. 540. 
 
 // V. I'liisley, 406. 
 Russel's Trustees v. Kussel, 114, 768. 
 Rutherford v. Bowdmi Feuars, 393, 438. 
 V. Marshall, 922. 
 
 * V. Kutherlord, 570, 577. 
 
 Kutherfords v. Rutherford's Trustee, 382. 
 
 1/ Exrs. V. Marshall, 1002. 
 
 Rutherfurd, 1039. 
 
 It V. Carruthers, 1152. 
 
 II V. Hay, 483. 
 
 Ruthven v. Earl of Callender, 727. 
 
 V. Clark, 229. 
 Routledge v. Carruthers, 21. 
 Ryau, 990. 
 
 Rvmer v. M'lutyre, 373. 
 Ryrie v. Ryrie, 280, 398, 400, 878. 
 
 Saddler v. M'Lean, 333. 
 Saliue's Childreu v. Callender, 745. 
 bait, 35. 
 
 Salte V. Thomas, 688. 
 Salton, Lord (or Halton) v. Hepburn, 
 1030. 
 II V. Salton, 614. 
 Saltoun, Lord v. Eraser, 402. 
 Sandeman v. Thomson, 6. 
 Sanders v. Hewat, 284. 
 II V. Jardine, 724. 
 // V. Reid, 1152. 
 Sanderson v. Donaldson, 370. 
 Sandilands v. Nimmo, 1000. 
 
 II V. Sandilands, 1130. 
 
 Sands v. Her Tenants, 228. 
 Sandy v. Sandy, 236, 237, 239. 
 Sawers v. Balgairuiu, 833, 834, 1077, 1169. 
 
 II V. Forrest, 363, 364. 
 Sayer^^v. Wagstatf, 1162. 
 Sayer"s Assignee v. Haldane, 924. 
 Scanlans, 187. 
 Schan v. Boswell, 851. 
 tjchaw V. His Tenants, 480. 
 
 // V. Wause, 852, 873, 895. 
 Schoning, Maria, and Anna Harlin, 888. 
 Schultze V. Robinson, 369, 616, 669. 
 tSchuurmans v. Stephen, 113, 114, 152, 
 
 174, 177, 1159. 
 Sclanders v. Hill, 441, 468. 
 Sclater v. Clyne, 425, 446. 
 Scotland, Bank of v. Telfer's Crs., 455. 
 ,/ V. Robertsons, 766. 
 
 „ V. Reid, 399. 
 
 Scot V. Douglas, 875. 
 Scott, 259, 776, 841, 983, 1031. 
 ii V. Brown, 302, 304. 
 ,1 V. Brydun, 304. 
 // V. Burd, 908. 
 „ V. Cairns, 126, 404. 
 „ V. Caverhill, 440, 101 1. 
 // V. Chalmers, 827, 905, 906. 
 ,/ V. Cockburn, 936, 937. 
 II V. Craw's Agent, 1017. 
 // V. Dalrymple, 448. 
 // V. Dickson, 593. 
 
 Scott V. Dishington's Crs. 572, 577. 
 " V. Dohcrty, 27. 
 II V. Donaldson, 341. 
 II V. Douglas, 470, 875. 
 " V. Lord Dumlanrig, 702. 
 " V. Dun, 830. 
 " V. Elliot, 242, 957. 
 '/ V. Erskine, 832. 
 '/ V. Fletcher, 242. 
 '/ V. Gillespie, 895, 897. 
 " V. Gray, 313, 314, 321, 1130. 
 " V. Gregory's Trustees, 331. 
 // V. Grieves, 724. 
 n V. Hatton, 146, 172. 
 '/ V. Kilmarnock Bank, 264. 
 '/ V. Laiug, 257. 
 (/ V. Letham, 724. 
 /' V. Livingston, 923. 
 " V. M'Cartney, 883. 
 -/ V. M'Gavin, 26, 27, 32, 77, 103, 
 
 805, 1008. 
 // V. Miller, 114, 116, 381, 622, 668, 
 
 669, 804. 
 II V. Moncrieff, 711. 
 ,1 V. Lord Napier, 793, 796, 797, 
 
 1086. 
 // V. Scott, 273, 275, 276, 278, 725. 
 ti V. Tosh, 614. 
 If V. Wilson, 1121. 
 '/ V. Yuille, 358. 
 Scottish Marine Ins. Co. v. Turner, 822. 
 II Missionary Society v. Home Mis- 
 sion Committee, 160. 
 II Provincial Assur. Co. v. Pringle, 
 
 502. 
 II Union Insnr. Co. v. M. Queens- 
 berry, 139. 
 ScouUer v. Gunn, 51. 
 Scrimgeour v. Betson, 539. 
 Scruton v. Catto, 41. 
 Seath V. Taylors, 398, 403. 
 Selden v. Williams, 153. 
 Selfe V. Isaacson, 1007, 1026, 1076. 
 Selkirk, Earl v. Douglas, 148. 
 II II V. Gray, 616. 
 
 II V. Inglis, 277. 
 Selkrig v. Somerville, 943, 945. 
 Sellar, 1032. 
 
 Selwood v. Mildmay, 159, 162. 
 Sempil, Lord v. Murray, 478, 480. 
 Semple v. Givan, 243. 
 
 II Lord V. Lord Somerville, 393. 
 Suton V. Cant, 432, 702. 
 // V. Paterson, 762. 
 Seth V. Hain, 382. 
 Settou V. tSetton's Trs., 440, 444, 5ol, 
 
 1136, 1171. 
 Sliarp V. Clark, 178. 
 
 II V. King's Trustees, 1182. 
 // V. Napier, 498. 
 Kharpe, 886. 
 
 -/ V. Smith, 243. 
 (/ V. Stevenson, 538. 
 Sliavv V. Farquhar, 487.
 
 IMJKX OF CASIlS. 
 
 Shiiw V. Kurbea, 147. 
 
 '/ V. Lewis, 40H, GIG, G29, G;50. 
 '/ L. V. Palmer, 404. 
 « V. Shaw, V2\, 4:!1, 4.'')G. r,24, 52G. 
 '/ Stewart V. Macl'arlaiie, 707. 
 »/ Stewart v. Walker, 1125. 
 Shearer v. Christie, 245. 
 Shelby V. Grey, 35G. 
 Shcddan, 102<J. 
 
 // V. Crawford, 4'JG. 
 
 </ V. Patrick, 024, 043. 
 
 II Petitioner, 755. 
 
 Shiel V. Crosbie, 497. 
 Shephard v. Gosnold, 170. 
 Shepheard v. Fraser, 1071. 
 Shepherd v. Campbell, 943. 
 
 V. Grant's Trs., 622, 530, 531, 
 53'J. 
 // V. Innes, 429, 482. 
 
 // V. Meldrum, 329, 341, 374. 
 
 Sherman v. Sherman, 878. 
 Sheriff, Mary, 981. 
 
 '/ V. Henderson, 450. 
 •I V. Sheriff's Trustees, 922. 
 " V. Stein's Assignees, 50. 
 Shultzo V. Campbell, 143. 
 Shumach v. Lock, 873. 
 Shiels, 29, 30, 38, 1100. 
 Shireff V. L. Lovat, 173. 
 Shirra v. Douglas, 388, 508. 
 Shore v. Wilsons. 151, 1G9. 
 Short V. Habkin, 481. 
 
 '/ V. Stoy, 877, 879. 
 Shrewsbury Peerage Case, 636, 694. 
 Sibbald v. Fraser, 882, 883. 
 
 '/ V. Sibbald, 554. 
 Sidney's Trial, Algernon, 557. 
 Sillick V. Booth, 233. 
 Sills V. Brown, 1159. 
 Sim V. Clark, 702. 
 
 '/ V. Cruikshauks, 527. 
 " V. Donaldson, 425, 551. 
 « V. Grant, 6, 245. 
 // V. Inglish, 135, 178. 
 // V. Miles, 3G1. 
 // V. Sim, 1184. 
 Simmons v. Simmons, 1184. 
 Simpson, 319, 809, 967, 1192. 
 « V. Barclay, 619. 
 // V. Brown, 298. 
 " V. Fiulay. 500, 593. 
 '/ V. Fleming, 502. 
 V. Liddle, 32. 
 
 V. Macfarlane, 806, 974, 1117. 
 I' V. Boss, 904. 
 " V. Archbishop of St Andrews, 
 
 449. 
 // V. Strachan, 49, 567. 
 Simson v. Fordyce's Trustees, 169. 
 Sinclair, 62. 982. 
 
 'I V. Alexander, 615, 627, 1153. 
 II \. Brown, 12. 
 
 V. Town of Dysarf, 23. 
 « V. Fraser, 750, 752. 
 
 Sinclair v. .I.-hnston, 918, 942, 943. 
 '/ V. L'lnl Advocate, 701. 
 V. M'Arthur, 21, 191. 
 V. M' Death, 448. 
 " V. Jlossend Iron Co., 510. 
 </ V. Murray, 614. 
 V. Purves, 582. 
 II V. J{owan, 1113. 
 
 V. Sinclair, 292, 304. 319. 389, 
 401, 424, 512, 590, 721, 725, 
 894, 896, 956. 964, 9G5, 967. 
 // V. Sinclair's Crs., 769. 
 // V. Thomson, 1152. 
 Sinton v. Irvine, 825. 820. 
 Sivwright V. Borthwick, 123. 
 Skellv V. Duff. 710. 
 Skelton V. M'Laren, 499, 509. 
 
 Skreii V. , 366, 368, 507. 
 
 Skene v. Balfour Kanipay, 374, 379. 
 // V. Forbes. 165. 
 
 // V. Lumsden, 483, 871, 1117. 1123. 
 Skirving v. Smellie, 248. 
 Slailden v. Sergeant, 1050. 
 Slaney v. Wade, 91. 
 Sloan V. Birtwistle, 307, 325. 
 Slumond v. Wood, 395. 
 Small V. Smith, 776. 
 '/ V. Spence, 135. 
 Smart v. Ewing, 757. 
 
 ir V. Prujean, 145. 
 Smeal v. Wilson, 999. 
 Smeiton, Lord v. Dunfermline Vassals, 
 
 708. 
 Smellie v. Cochrane, 296, 329. 
 V. Gillespie, 296, 374. 
 V. Miller. 329. 
 Smollct V. Bell and Kannie, 134. 
 Smith, 30, 31, 73, 90, 103, 108, 195, 217, 
 720, 723. 730, 842, 835. 989. 
 996, 1013, 1018. 1023, 1057, 
 1123, 1129, 1144, 1145. 
 1191, 1193. 
 '/ Brodie, and Others, 1038, 1107, 
 1129. 
 Smith and Campbell, 865. 
 " and Milne, 16, 104. 
 " V. Aikman, 170. 
 II V. Allan and Pavntor, 246. 
 " V. Earl of Airley, 793, 795. 
 " V. Anderson, 65. 
 " V. Bank of Scotland, 91. 426. 439, 
 
 442. 500, 519, 551. 552. 
 II V. Battems. 99. 120. 
 /' V. Bcadw.ll, 853. 
 II V. B.dl, 331. 
 " V. I'nchanan, 357. 
 " V. Chamberlaine, 240. 241. 
 /' V. East India Co., 1008. 
 II V. Falconer, 344. 348, 874. 
 " V. Flowcrduc, 611. 
 " V. Fuge, 669. 
 
 II V. Duke of Gordon, 107, 458, 638. 
 '/ V. Green, 52. 
 " V. Grierson, 361.
 
 INDEX OF CASES. 
 
 Smith V. Hall, 719. 
 
 " V. Ivorv, 347. 
 
 " V. Jamesons, 1149, 1183. 
 
 " V. Jeffreys, 153. 
 
 " V. Lord Jersey, 155. 
 
 " V. Kemp. 97, 689. 
 
 " V. Knowles, 1120, 1123. 
 
 " V. Logan, 696, 809. 
 
 '/ V. Mackay, 106. 689, 690. 
 
 " V. M'Aulay, 657. 
 
 /' V. M'Keand, 461. 
 
 « V. Maxwell, 13, 874, 877, 878. 
 
 '/ V. Miller, 331. 
 
 " V. Mitchell, 814. 
 
 II V. Morgan, 1163. 
 
 'I V. ]\Im-doch, 261. 
 
 '/ V. North British Insur. Co., 445. 
 
 " V. Prickett. 1050. 
 
 " V. Pullar, 101, 104, 370, 854, 869, 
 1051. 
 
 ■I V. Ranken, 522. 
 
 /' V. Robertson, 92, 127, 409, 999. 
 
 " v. Ruramens, 656. 
 
 " V. Stark, 265, 266, 830. 
 
 '/ T. Weddear, 497. 
 
 " V. Wilkins, 24. 
 
 '/ V. Williamson, 720. 
 
 II V. Wilson, 18, 141, 150. 
 Smiths V. Taylor, 407, 420, 421, 487. 
 Smith's Children v. E. of Winton, 329, 340 
 Smyths \. Pentland, 859. 
 Snadon v. Stewart, 95, 99, 101, 1150. 
 Snaith v. Mignav. 601. 
 Snare v. E. of Fife's Trs., 72. 
 Sneddon v. Addie, 12. 
 Snodgrass v. Buchanan, 419, 423. 
 Soilleux V. Soilleux, 1184. 
 ^Solicitors v. Writers to the Signet, 248. 
 Somervail v. Stratoune, 335. 
 Someryil v. Somervil, 708. 
 Somerville, 950, 951. 
 
 II V. , 725. 
 
 II V. Earl of Annandale, 520. 
 
 II V. His Debtors, 891, 935. 
 
 II V. Jarvis^vood, 715. 
 
 // V. Muirhead's Exrs., 830, 333, 
 
 401. 
 Lord V. N., 371. 
 Soutar, 720. 
 
 // and Others, 1184. 
 
 II V. Soutar, 286, 308, 947. 
 Soutar's Reps. v. Soutar, 314. 
 Souter V. M'Intosh, 89. 
 Southesk, Earl of v. D. of Hamilton, 766, 
 767. 
 V. Reddy, 324, 325. 
 E. of V. Simpson, 335. 
 E. of V. L. Stormonth, 1128. 
 South Metropolitan Gas Co. v. M. Lothian, 
 
 100, 870. 
 Soward v. Leggett, 4. 
 Spalding, 1019, 1027, 1028. 
 
 '/ V. Lawrie, 166. 
 
 Sjialding v. Shaw, 943, 945. 
 Specks, 1032. 
 Speir V. Dunlop, 44, 832. 
 Spence v. Chaplin, 383. 
 
 II y. Duncan, 121. 
 
 " V. Fowlis, 274. 
 
 H V. Howden, 76, 100. 
 
 '/ V. Reid, 432, 702. 
 
 II V. Ross, 589. 
 
 // V. Scott, 288. 
 Spencer v. Billing, 102. 
 Spicer v. Cooper, 150. 
 Spink V. Johnston, 76. 
 Spott's Crs., 447. 
 Spottiswood V. Prestongrange's Crs., 882, 
 
 458. 
 Spring V. Eve, 635. 
 Springthrope, 19, 858. 
 Sprat V. Pennycuick, 141, 479. 
 Spruel V. Crawford, 379. 
 Sproul V. Wilson, 409. 
 Squire v. Campbell, 143. 
 St George v. St Margaret, 241. 
 Staclqiole v. Arnold, 121. 
 Stainton v. Stainton's Trs., 393, 408, 479. 
 Stamiield y. Hamilton, 399. 
 Stamfield's Crs. v. Scott, 567. 
 Stanefield, 840. 
 Stanley v. Bernes, 624. 
 
 « V. White, 23. 
 Stalker, 1117, 1123. 
 Stark y. Kincaid, 508, 509. 
 
 II V. Napier, 398, 400. 
 Steele v. Steele, 124, 144. 482. 528. 
 Steil V. Lord Orbiston, 179, 940. 
 Stein V. Bonar, 653. 
 // V. Forbes, 259. 
 » V. Marshall, 1075. 
 Stein's Assignee v. Brown, 1153. 
 
 n Assignees y. E. of Mar, 620, 937. 
 Stenhouse, Crs. of, 760, 762. 
 Stephen y. Pirie, 485, 824, 883. 
 Stei)hen3, 30, 79, 84, 89, 1108. 
 Stephenson v. Macpherson, 106. 
 
 " V. Stephenson's Trustee, 309. 
 
 Steven v. Dundas, 1071. 
 
 " V. Simpson, 273. 
 Stevens v. Finney, 94. 
 Stevenson and Others, 1151. 
 
 « V. Campbell, 319, 967. 
 
 V. Kyle, 313, 330, 340, 344, 348, 
 818. 
 
 // V. Macpherson, 106, 690. 
 
 n V. Manson, 120, 178. 
 
 y. Moncrieff, 123, 148. 
 
 " V. Pitcairn, 781. 
 
 V. Scott, 1001, 1002, 1168. 
 
 V. Stevenson, 318, 442, 554, 
 
 669, 953. 
 V. Watson, 719. 
 
 II V. Wright, 373. 
 
 V. Young, 803, 1103. 
 Stewart, .36, 82, 85, 818, 835, 839, 994, 
 1138, 1141, 1197.
 
 INDEX OF CASES. 
 
 Ixv 
 
 Stewart Joliii, 984. 
 " V. Af^now, 484. 
 
 V. JSuillie, 524, 5'2G, 989. 
 V. Bauiiiitym;, 378, 381, 382. 
 " V. 15iid, 543. 
 " V. Bhickliall, 570. 
 
 V. Uoyes, 1144, 1159. 
 '/ V. Brown, 71G, 72G, 729. 
 " V. Bruce, 458. 
 " V. Buchaniin, 100. 
 " V. Burk, 14:5. 
 '/ V. Central Bank of Scotland, 37G, 
 
 393. 
 " V. Dalryrnple, 741. 
 " V. Dou^'la.s, 30G. 31G, 350. 
 II V. Ferguson, 178, 180, 51G. 
 
 V. Fraser, 45, 4G, 643, 10G2, 1065. 
 " V. Gordon, G, 12, 39G. 
 " V. Grajme, G18. 
 
 V. Hay, 225. 
 " V. .Idhnstone, 875. 
 " V. Kirkliill, 551, 554. 
 
 V. Leith, 507. 
 '/ V. Lindsay, 3G1, 3G2. 363, 82G. 
 II V. M'Donald, 615, GIG, 753. 
 " V. M'Gregor, 789. 
 v. M'Keand, 236. 
 V. M'Ra, 725. 
 " V. M'Whirter, 950. 
 // V. Macdonald. 728. 
 " V. JIacfarlanc, 72, 1137. 
 II V. Maxwell, 747. 
 '/ V. Menzies, 63, 137, 856. 
 
 V. Mitchell, 824. 
 " V. Tlie Countess of Moray, 501. 
 
 V. Riddock, 279, 570. 
 « V. Robertson, 967. 
 
 V. Russell, 430, 483, 832. 
 V. Scott, 334, 349. 
 II V. Stew^art, G3, 123, 135, 317, 419, 
 429, 440, 444, 453, 580, 930, 
 1121. 
 V. Symcs, 385, 935. 
 '/ V. Telfer, 964. 
 '/ V. Wathertone, 481. 
 '/ V. Watson, 618. 
 II V. Walpole, 956. 
 
 V. Whitefoord, 138. 
 /' V. Wright, G. 
 
 V. Wylie, 250, 258. 
 Stuart V. Mags, of Edin., 119, 650, 873. 
 '/ V. Hay, 715. 
 " V. Hutchison 461. 
 II V. I.ovell, 36. 
 
 .' V. Maconochio, 399, 400, 402. 
 II V. Mitchtll, 695, 808. 
 II V. Miller, 1079. 
 '/ V. Smith, 431. 
 Still & Co. V. Gall, 421. 
 Still's Trustees v. Chivas, 49. 
 Stirling, Presbytery of, 1110. 
 
 '/ & Dunfermline Railway v. Edin- 
 burgh & Glasgow Railway, 124. 
 V. 707, 932. 
 
 Stirling, E. Vide Humphrey.^. 
 
 // Earl of V. Lord Advocate, 764. 
 
 " V. Cliristie, 920. 
 
 '/ V. Earl of Glasgow, 447. 
 
 II V. Hendcrsiin, 321. 
 
 '/ V. Lang, 302. 
 
 V. M'K.nzie, 229. 
 V. M'Phadrick, 372. 
 
 II V. Stewart, 347. 
 
 // V. Stirling, 381. 
 Stirveling v. Monteith, 781. 
 Stock V. Aitkcn, G. 
 Stockfleth V. De Tastet, 851, 854. 
 Stoddart v. Arkley, 4.3G, 476, 477. 
 
 II V. Grant & Others, 166, 167. 
 Stone V. Aberdeen In.surance Co., 1134. 
 
 " V. General Marine Insur. Co.. 654. 
 Stormont, Tutor of v. His Pupil, 287. 
 Storach v. Cheyne, 443. 
 Stothart v. Jolnistono's Trs., 88, 156, 739, 
 
 1117. 
 Strachan v. Edzelo's Creditors, 746. 
 
 '/ V. Lindsay's Creditors, 745. 
 
 '/ V. Monro,"68, 69. 
 
 II V. Tomlins, 1179. 
 Strahorn v. Cunningham, 323. 
 Straiton v. Robertson, 444. 
 
 // V. Straiton, 225. 
 Strang v. Stewart, 1148. 
 Stratheru v. Masterman & Co., 268, 354, 
 
 631. 
 Strathmore, Earl of v. Earl of Strathmore'i 
 
 Trustee, 106, 538. 
 Strathnavar, Lord v. M'Beath, 378. 
 Straton's Trustees v. Cunningham, 160. 
 Striviling v Menteith, 712. 
 Strode v. Russell, 160. 
 Strong V. Stewart, 1027. 
 Strowan v. Cameron. 650. 
 Stnithers v. Dykes, 1119. 
 Stuart. Vide Stewart. 
 
 // V. Moore, 751. 
 Sturrock v. Greig, 108, 677, 690. 10G9, 
 
 1073, 1117. 
 Sulmond v. "Wood, 395. 
 Summers v. Fairservicc, 100, 117. 
 Sundins v. Sherifls, 1021. 
 Sutherland, 481. 1191. 
 
 // V. Presbytery of Dornocli, 
 
 1179. 
 
 // V. Gibson, 35. 
 
 V. Hay, 504, 513. 
 
 " V. Johnstone, 883. 
 
 " V. Montrose Shipping Co., 132. 
 
 // V. IMorrison, 543. 
 
 •I V. Sutherland, 16G. 
 
 Sutor V. Cramond, 468. 
 Sutter V. Aberdeen Arctic Co., 090, 1128, 
 
 1133. 
 Suttie V. Ross, 474, 475. 
 Sutton V. Ainslie, 1136. 
 
 II V. Bath, 750. 
 
 // V. Sadler, 4, 220. 
 Swan. 843.
 
 Ixvi 
 
 INDEX OF CASES. 
 
 Swan V. AUau. 737. 
 
 " V. Carrutber.-*. 1120. 
 « V. Swan. 947, 948. 
 Swauson v. Archibald, 709. 
 Swayne v. Fife Bauk, 10, 14. 
 Sweating v. Pearce, 176. 
 Sweet V. Lee, 149, 153. 
 Sweney, 1057. 
 Swanfiu V. Chelmsford, 284. 
 Swinton v. Beveridge, 264. 
 
 V. Brown, 433, 461, 497, 051. 
 
 V. Thorn, 257. 
 ,/ V. Lord Tofts, 281. 
 
 V. Swinton, 3, 12, 1113, 1125. 
 
 Lord V. Lord Westnisbet, 931. 
 Syme v. M-Inroy, 825. 
 Symon, 864. 
 
 Tait, 703. 
 
 '/ V. Davie, 1149. 
 " V. Stevenson, 865. 
 '/ V, Pollock, 592. 
 Tarbet v. Bennet, 363, 385, 829. 
 
 <, V. Master of Poisset, 1029. 
 'I'arrass v. Innes, 309. 
 Tassie v. M'Lintoch, 372, 388, 391. 
 Taylor v. AUardyce, 328. 
 "// v. Braco, 448. 
 " v. Briggs, 150. 
 
 V. Crichton, 95G. 
 « v. Dobbins, 487. 
 '/ V. Forbes, 220, 971. 
 » V. Foster, 1078. 
 « V. Grieve, 500. 
 » V. Hall. 919. 
 // v. Kello, 137. 
 // v. Littb-, 976. 
 ./ v. M'Whinnio, 542, 543. 
 II V. Malcolm, 538. 
 // V. Mauford, 977. 
 '/ V. Mather, 261. 
 // V. Parry, 636. 
 II V. Ranken, 242. 
 I, V. Scott, 602, 615, 1153. 
 -/ V. Simson, 389. 
 Tead v. Martin, 669. 
 Telfer.v. Barrow, 712. 
 
 V V. Hamilton, 500, 519, 524. 
 " V. Maxton, 525. 
 II V. Sijence, 940. 
 Temple v. Lady Whittinghame, 474, 932 
 
 933. 
 Tennaut & Co. v. Hamilton, 20, 38. 
 (/ V. Lord Traquair, 394. 
 // V. Tennant, 551, 554. 
 Tennent v. Tennent's Trustees, 440. 
 I'etley v. Earton, 1169. 
 Tliallane v. Orrock, 385. 
 Thilusson v. Woodford, 146. 
 Thi.stle Bank v. Leny, 491. 
 Tlioirs V. Tolquhoun. 288. 746. 
 Thorn V. .Jardine. 329. 
 
 // V. North British Bank, 71, lUO. 
 IOC, 109, 110, 142. 
 
 Thorn V. Sheriffs. 118. 
 Thomas v. Dumbreek, 917. 
 II V. Morgan, 860. 
 " V. Newton, 1171. 
 II V. Pinkston, 1027. 
 '/ V. Tliomas, 162. 
 Thomson, 103, 409, 094. 841, 985. 1035, 
 1057. 
 „ V. A B, 921. 
 
 II V. Marquis of Aunandale, 521, 
 
 564. 
 II V. Balvaird, 303. 
 
 V. Bell, 546. 
 r, V. Bisset. 701, 1165. 
 
 V. Borthwick. 440, 441. 
 /, V. Marquis of Breadalbane, 392. 
 
 // V. Campbcirs Trustees, 373. 
 
 ;/ V. Carnegy, 902. 
 
 „ V. Crichton, 483. 
 
 // V. Davenport, 121. 
 
 V. Duncan, 943, 957, 966, 969, 
 970. 
 II V. Lord Duncan, 828, 353. 
 
 V. Easton, 304. 
 It V. FuUerton, 466. 
 
 // V. Gavin, 716. 
 
 V. Gall, 257. 
 " V. Garioch, 147. 
 
 V V. Geekie, 5, 121, 270. 
 
 // V. Gilkison. 389. 
 
 „ V. Gillie, 1071. 
 
 I, V. Duke of Hamilton, 950, 951. 
 
 V. Earl of Linlithgow, 304, 348. 
 II V. M'Lauchlane, 261, 262. 
 
 ii V. M-Crummond'sTrs.,446,459. 
 
 „ V. Martin, 1042. 
 
 I, V. Moffat, 1161. 
 
 II V. Monkland Steel Co., 128. 
 
 I, V. Murdoch, 56, 248. 
 
 '/ V. Murray, 13. 
 
 // V. Paterson, 924. 
 
 I, V. Robertson, 959. 
 
 V. Ross, 395, 921. 
 V. Sheill, 429, 492. 
 II V. Simpson, 916, 925. 
 
 II V. Stevenson, 676, 743. 
 
 // V. Stewart, 520, 753. 
 
 II V. Terney, 178. 
 
 V. Thomson, 505, 853, 854, 948, 
 
 967. 
 V. Westwood, 328, 329, 333. 
 V. Wyld, 926. 
 Still, and Co. v. Gall, 487. 
 Tliomson's Trustees v. Clark, 1086. 
 „ v. Monteith, 398, 
 
 400. 
 Thomson & Company, v. Sharp, 262, 940, 
 
 941. 
 'I'lircshrie v. Hyslop, 148. 
 Thricplaiid v. Rutherford, 787. 
 'J'hvune v. Protherve, 612. 
 Tiiorbuni, 1006. 
 
 ,- V. Chartoris, 23. 
 
 v. lloby, 805, 818.
 
 INDEX OF CASES. 
 
 1 x \' i i 
 
 Thornton v. Charles, 107. 
 
 // V. M(U.\, 107. 
 
 // V. Miliio, 44y. 
 
 Tickel V. Short, 878. 
 Tidmarch v. Groiior, 544. 
 Tiley v. Cowlinp;, 855. 
 
 Tillibolo, Barony of v. 1030. 
 
 Tinkler v. Walpole, 669. 
 
 V. Tit hill, 473. 
 
 Tod V. Boattio. 400. 
 " V. Flockhart, 396. 
 '/ V. Wightman, 333. 
 " V. Winclielsea, 96. 
 " &c. V. Boag, 009. 
 Todd, 843, 1004, 1038. 
 Tomkins v. Attorney-General, 749. 
 Tomlius V. Attorney-Geucral. 688. 
 Topham v. MGregor, 103. 
 Tojuting V. Barr, 517. 
 Torrance v. Brvson, 334, 835. 
 Torrie, Lord v.' Wardlaw, 928. 
 Torsons, Lord v. Pringle, 958. 
 Towart v. Sellars, 4. 
 Townsend Peerage Case, 21, 77, 238, 240. 
 
 » V. Drakeford, 107. 
 
 'I Manjuis of v. Strangroom, 139. 
 
 Trail v. Christie, 121, 
 Traill v. Traill, 477. 
 Traquair, Earl of v. Gibson, 428, 429. 
 
 /' V. Hender-son, 421, 531. 
 
 Lord V. Earl of Winton, 579. 
 Trelauney v. Coleman, 78, 1157. 
 Trewhitt v. Lambert, 94. 
 Trimbey v. Vignier, 352. 
 Trimmer v. Bayne, 162. 108. 
 Trodden v. Sweetman. 52, 53, 60. 
 Trotter v. Clark, 957. 
 
 " V. Home, 758. 773, 775. 
 
 " V. Martin, 389, 512, 514. 
 
 " V. Pitcairn, 568. 
 
 '/ V. Kobertson, 280, 287. 
 
 n V. Trotter, 618, 1152, 1153. 
 Trotters v. Lundy, 572, 589, 690, 725. 
 Trueman v. Loder, 175. 
 Troup V. Begg, 19, 562. 
 
 // V. Rigg, 558. 
 TiiUoch V. Davidson, 789. 
 
 // V. Tulloch, 1000. 
 Tiirnbull v. Allan & Sons, 466. 
 
 V. Borthwick. 348, 917, 948, 950. 
 
 n V. Doods, 16, 470. 472. 556, 557, 
 560, 561, 564. 
 
 II V. Forsvth, 787. 
 
 „ V. M-Ki'e. 376. 
 
 <i V. Smellie, 976. 
 Turner. 863. 
 
 « V. Gibb & M'Donald. 243. 
 
 -/ V. Power. 94, 95, (513. 
 Turner's Crs. v. His Children, 579, 581, 
 
 692. 
 Tweeddale, M. of v. Brown, 76. 177. 
 
 ;; V. L. Dniramelzier, 1060. 
 
 // V. Hume. 120. 
 
 » V. Kerr. 50, 60. 
 
 Twoedic 30, 1142. 
 
 V. Loch, 374, 379. 
 
 '/ V. M'Intyre, 504. 
 
 '/ V. Williamson, 330. 
 Tytler v. Mackintosh, 25, 1068, 1071. 
 
 Udalut, 868. 
 
 Ulrick V. Litchfield, 160. 
 
 Underwcwjd v. Lord Cnurtoun, 859. 
 
 " V. Wing, 2:53. 
 
 Union Ins. (!o. v. Bontine, 611. 
 
 " V. ]\Iarquis of Qucensberrv, 
 
 121. 
 United Mutual Mining & General Assur. 
 
 Co. V. Murray, 40. 498, 513. 
 Ure V. Pollock, 1117. 
 Urquhart v. Nairn, 871, 932. 
 
 II V. Urquhart, 143, 495. 
 
 " V. Officers of State, 707. 
 
 Vallancc, 844. 
 
 V. M-DonalL 450. 
 Van Charaut v. IM'Kay, 259. 
 Vans V. Brown, 393. 
 
 '/ V. Malloch, 469. 
 
 '/ V. Murray, 307. 
 Van "Wort v. "Wf)olcy, 822. 
 Vaughan v. Martin, 1163, 1164. 
 Veitch V. Ibn-sburgh, 433, 434. 
 
 " V. Patcrson, 286, 399, 401. 
 Verlue v. Ward, 148. 
 Vincent v. Cole, 94. 
 
 Wauchope v. Hamilton, 120. 
 ^Vaddell v. Madderstoun, 945. 
 V. M(M-ton, 333. 
 II V. Waddell, 779, 780. 
 
 V. Waddell'3 Tr., 470, 474, 475, 
 
 476. 
 V. Wadderstoun. 935. 
 Waddell's Trustee v. Scott, 4, 401. 
 Walker, 58. 722, 1064. 
 •I Petitioner, 999. 
 " V. Adamson, 441. 
 II V. Broke, 769, 772. 
 " V. Buchanan, Kennedy & Co.; 14, 
 
 382. 
 " V. Caledonian Railway Co.. 123, 
 145, 156. 
 V. Clerk, 958, 961, 962. 
 V. Duncan. 390. 
 " V. Easton, 740. 
 II V. E. Egliuton's Tutors. 727. 
 V. Flint, 366, 606, 507. 1198. 
 V. Gibson, 539. 
 V. Home, 386. 
 » V. Macadam, 14, 21. 
 II V. M'Isaac, 25. 
 V. M'Nair, 332. 
 V. Milne, 367. 
 II V. Pollock. 669. 
 V. Ritchie, 29, 62. 
 V. Robertson. 25. 26. 1150. 
 V. Ronald. 648, 766.
 
 Ixviii 
 
 INDEX OF CASES. 
 
 Walker v. Simpson, 332. 
 
 « V. Steele, 44, 393, 408, 549. 
 « V. Walker, 234, 240, 527. 
 Walkeuslmw v. Kuaijperny, 298, 308. 
 Wallace, 57. 
 
 ,f V. Barrie, 250. 251, 253. 
 1/ V. Campbell, 451. 
 // V. Dacres, 61G. 
 u V. Dalvrmple, 707. 
 
 V. E. i)un<lonald, 739, 745. 
 u V. Gray, 611. 
 « v. Kernal, 705. 
 « V. M'Kissock, 330, 874. 
 ,/ V. Miller, 377, 392. 
 // V. Muir. 407. 
 
 V. Robertson, 922, 724, 999. 
 ,> V. Scott, 265. 
 V. Small, 860. 
 ,/ V. Wallace, 390, 392, 496, 508. 
 1/ V. W^ishart, 517. 
 Wallis V. Littell, 120, 136. 
 Walpole, L. v. L. Cbolmondeley, 156, 
 
 160. 
 Walton V. Green, 858. 
 Wamphray's Crs. v. Wampbray, 1081, 
 
 1086. 
 Warde v. Stewart, 150, 175. 
 Wardlaw v. Gray, 697, 871. 
 « V. E. Mariscbal, 477. 
 
 V. Maxwell, 615, 616, 753. 
 // T. Pitello, 940. 
 
 Wardrop v. Dickie, 1012. 
 Wark V. Bargaddie Coal Co., 132, 516, 
 
 1080, 1117, 1198. 
 Warnock v. Murdoch, 592. 
 Warrund v. Falconer, 1071. 
 Warrander v. Thomsons, 243. 
 Warren v. Bray, 677. 
 Warrickshall's Case, 861. 
 Warrick v. Foulkes, 37. 
 Waterpark v. Fennel, 157. 
 Waters v. Houjjjbton, 600. 
 Waterston v. Edin. & Glas. Bank, 597. 
 Watson, 718, 1057, 1131, 1132. 
 // V. E. Aucbinloss, 305. 
 // V. Brown, 873. 
 // V. Burnet, 52. 
 n V. Erskine, 769. 
 « V. Forrester, 382, 472. 
 // V. Gardner, 120. 
 n V. Glass, 676, 1118, 1120,1132, 
 
 1135. 
 // V. Hamilton, 429, 433, 434, 482, 
 
 485, 656, 824, 999. 
 ', V. Hunter, 306, 473. 
 /r V. Hunter & Co., 313, 314, 340, 
 
 398. 
 // V. Johnstone, 340. 343, 473. 
 f, V. Kidston, 141, 142, 149. 
 f, V. King, 688. 
 r/ V. Morri.-;on, 937. 
 ,, V. Paul, 883. 
 „ V. L. Prcstonhall, 335. 
 n V. Scott, 477, 760, 762. 
 
 Watson V. Simpson, 1001. 
 '/ V. Thomson. 541. 
 // V. Watson, 3, 144. 
 Watt, 62, 843, 862, 867, 1188. 
 f, Y. Blair, 1155. 
 // V. Johnscm, 1003. 
 // V. Mitchell, 807. 
 // V. Stewart, 518. 
 // V. Watt, 1113. 
 Waters v. Barrie, 489. 
 Watts V. Barbour, 712, 723. 
 
 >r V. Lawson, 860. 
 Wauchope v. Hamilton, 120. 
 // V. Niddric, 472. 
 
 '/ V. D. of lioxburghc, 165. 
 
 Warrcnder v. Thomson, 243. 
 Weatherly v. Turnbull, 465. 
 Webber v. Maddocks, 545. 
 Webster, Dr, 30, 184, 186, 196. 202. 
 // V. M'Lellan, 332. 
 « V. Thomas, 285. 
 // V. Webster, 699. 
 Weddcrburn v. Dundas, 277. 
 
 T. Nisbet, 282, 403. 
 Weir V. Laing, 617. 
 // V. Moffat, 497. 
 // V. Russell, 179, 387, 391, 946. 
 // V. Simpson, 809. 
 // V. Steele, 148. 
 Weirs v. Ralston, 418, 428, 429. 
 Welsh V. Ker, 390, 924. 
 // V. Macpherson, 718. 
 // V. Milligan, 439. 
 // V. Milne, 1153. 
 // V. Stewart, 101. 
 rf V. Welsh, 553. 
 Wemyss v. Australia Co. of Edin., 1113. 
 // V. Christison, 934. 
 
 V. Hay, 448, 449, 450. 
 // V. Maitland, 951. 
 // V. Murray, 278. 
 „ V. Stewart, 520. 
 // V. Wemyss, 501, 1021. 
 Westenra V. M'Neill, 821. 
 Western Bank v. Baird, 1200. 
 Weston V. Ernes, 122. 
 Westerdell v. Dale, 670. 
 Wharton Peerage Case, 636, 755, 811. 
 Whealler v. Methven, 22, 38, 176, 177. 
 Whitakor v. Tatham, 162. 
 White, 845, 981, 988, 1056. 
 '/ V. Ballantyne, 12. 
 " V. Brown, 940. 
 f> V. Clark, 101, 1134, 1149. 
 // V. Cleugh, 28. 
 // V. Crockatt, 896. 
 'f V. Currie, 333. 
 // V. Finlay, 250, 528. 
 // V. Girdwood, 977. 
 // V. Henderson, 447. 
 ff V. Knox, 435. 
 // V. Murdoch, 924. 
 // V. Barken, 129. 
 II V. Simjison, 1001.
 
 INDEX OF CASES. 
 
 Ixix 
 
 White V. Spottiswood, 520. 
 
 Whitehaven, &c. lv;iil. Co. v. Macfiidyeii, 
 
 G8'J. 
 Whitefoortl v. Aiton, 127. 
 Whitelaw v. Ruthven, 1118. 
 WhitLhcad, 812. 
 
 // V. Armstron<^, 5. 
 
 II \. Henderson, 543. 
 
 II V. May, 157. 
 
 // V. Scott, 76. 
 
 II V. Thomson, G52, 762. 
 
 // and Morton v. (Jalbraith, G40. 
 
 Whilford v. Tutin, '.)4, '.l7, lOCJ. 
 Whittuck V. Waters, G'JO. 
 Whyte, 840, 841. 
 n V. Knox, 443. 
 // V. Sj.ence, 324, 326. 
 // V. Whyte, 271, 273. 
 Whytelaw v. L:ui^', 019. 
 Wick Election, 726. 
 Wigglesworth v. Dallison, 173. 
 Wight, 30, 85, 1044. 
 
 II V. Ewinj,'. 850, 873, 1078. 
 // V. Earl ot llopctoun, 146. 
 " V. Liddell, 24, 818, 853, 870, 873, 
 
 874, 1020, 1136, 1164. 
 ri T. Ritchies, 259. 
 Wightmau v. Do Lisle, 618. 
 
 '/ V. Johnston, 252, 258. 
 
 // V. Moncur, 252, 256. 
 
 Wigtown, Mags, of v, M'Clymont, 170. 
 
 '/ E. V. E. Cassillis, 707, 711. 
 
 Wigton, E. V. Gray, 240. 
 Willde V. Chalmers, 5, 269. 
 II V. Flowerdcw, 600. 
 II V. Jackson, 781, 1012. 
 // V. Wilson, 259, 261. 
 Wilkies v. Gordon, 120, 136, 178. 
 Williams v. E. India Co., 7, 10. 
 '/ V. Eyton, 221. 
 
 II V. Farrington, 1170. 
 
 " V. Inncs, 872, 923. 
 
 " V. Jones, 352, 356. 
 
 '/ V. Williams, 852. 
 Williamson, 1027. 
 
 » V. Lord Balgillo, 282. 
 
 " V. Corric, 1036. 
 
 " V. Dinwiddle. 124. 
 
 " V. Fra.ser, 106. 
 
 '/ V. Kennedy, 504, 1123. 
 
 // V. reacock', 319, 969. 
 
 II V. Taylor, 859. 
 
 II V. Tcunant, 577, 846. 
 
 II V. Thriepland, 737, 745. 
 
 II V. Urquhart, 435, 477. 
 
 V. White, 896. 
 II V. Williamson, 426. 
 
 Willis V. Jeruegan, 878. 
 
 II V. Barnard, 78. 
 Willock V. Auchterlonv, 618. 
 Willox V. Farrell, 3. "96, 675, 676, 603, 
 
 1120, 1123. 1136, 1137. 
 Wills V. Howden. 118. 
 Wilson's Crs., 998, 1048. 1188, 1193. 
 
 Wilson, 30, 43, 73, 433. 836, 837, 842, 
 843, 847, 1017, 1038, 1081, 
 1144, 1163, 1190. 
 '/ V. Aitken, 676, 743. 
 
 V. I5ev.-ri.lge, 830, 833. 
 " V. Dawling, 286. 
 II V. Glas. and South Western Rail. 
 Co., 76. 97, 109, 141. 149, 
 156, 493, 999, 1053, 1164, 
 1165. 
 // V. Gf.rdon, 22, 177. 
 II V. Ilaiiiing, 645. 
 and Hall, 865. 
 V. Hart, 561. 
 II V. Hodges, 5. 
 " V. Howden, 856. 
 " V. Jamieson, 87, 600. 
 . V. Kay, 295. 
 
 V. Kirkwood, 90, 102, 1122. 
 V. Lod.r, 252, 257, 258. 
 // V. Mitchell, 265. 558. 
 '/ V. Paterson, 271, 278. 
 // V. Tattie, 727. 
 // and Philips, 722. 
 
 V. Pollock, Gilmour, &.Co., 254. 
 II V. Priiigle, 431. 
 // V. Pnrdie's Children, 138. 
 
 V. Raeburn, 427, 431. 
 „ V. Rustall, 1093. 
 /, V. R.)l)inson, 932. 
 II V. Lord Saline, 740. 
 (/ V. Smith, 471. 
 
 V. Stnitlurs, 1161, 1162. 
 V. Strang, 294, 310, 311, 319, 341. 
 ,1 V. Swan, 324, 372. 
 
 V. Tours, 242, 334, 348. 
 // V. Turner, 874. 
 // V. Weir and Strang, 27, 34, 1123. 
 „ V. Wilson, 165, 402, 734. 
 Wilsons V. M'Knight, 653. 
 Wilson's Trustees v. Stirling, 495. 
 Winchester v. Smith, 547, 588, 764, 765. 
 
 771, 777, 779. 
 Wing V. Angrave, 233. 
 Wink v. Mortimer, 302, 340. 
 Winram v. Anderson, 449. 
 Winrahame v. Files, 276, 277. 
 
 // V. Petratt, 146. 
 
 Winter v. Wroot, 78. 
 Winterton v. Crawford, 147. 
 Wintou v. Gibson, 14, 251, 253, 474, 483, 
 
 II V. Thomson, 774. 
 Wintoun, Earl of v. Gibson, 727, 892. 
 II II V. Kingston. 1128, 1131. 
 
 „ II V. Ramsay, 288, 289. 
 
 Wintnip, 988. 
 Wiseheart v. Hume, 737. 
 AViseman v. Morrison, 1034. 
 Wishart v. Arthur, 384. 
 
 V. David.son, 1117, 1123. 
 II V. Falconer, 370. 
 n V. Hume, 648. 
 Woddrop V. Finlay, 124. 
 Wodrow V. Paterson, 1126.
 
 ixx 
 
 INDEX OF CASES. 
 
 Wolf V. Scott, 500. 
 Womcrsloy v. Dully, 177. 
 Wood, 864, 1193. 
 
 // V. Braddock, 869. 
 '/ V. Cranioud, 713. 
 '/ V. Howden. 313, 875. 
 t, X. Kello, 695. 902. 
 /' V. Ker, 459, 538, 611. 
 II V. Moncur, 592. 
 II V. Morris, 100. 
 " V. Ncirtheru Eeversion Co., 287. 
 II V. Robertson, 386, 388. 
 II V. Young, 1036. 
 II Small, & Co. V. Spence, 381, 382. 
 Woodrow V. Wright, 386. 
 Woods, 1144. 
 Woodward v. Cotton, 634. 
 AVorkman v. Young, 960, 967. 
 AVright, 35, 722, 723, 865, 1031. 
 II V. Arthur. 1079. 
 V. Bell, 785, 787. 
 " V. Burns, 648. 
 V. Dick, 723. 
 V. Din, 1060. 
 // V. Ewing, 112. 
 V. Ker, 378. 
 V. Liddell. 688, 855. 
 V. Lindsay, 851, 870. 
 V. M'Farlane, 967. 
 V. M'Leod, 538. 
 V. Moffat, 723. 
 II V. Murray, 611. 
 
 V. Lord Eutherfurd, 973. 
 „ V. Shiel, 940. 
 „ V. Wright, 299, 308. 
 Wrights of Glasgow v. Cross, 248. 
 Wright's Tr. v. Hamilton's Tr., 690. 
 Wyatt V. Gore, 1068. 
 
 „ V. M. Hertford, 857. 
 Wyche v. Blount, 360. 
 // V. Brand, 558. 
 Wylie, 85, 841, 844. 865, 963 967. 
 
 „ V. Latta, 950. 
 Wynne, 844. 
 
 „ V. Humbertson, 1090. 
 ,/ V. .Jackson, 602. 
 Wyper v. Harvey, 245. 
 Wyse V. Wyse, 300. 
 
 Yallop, 668. 
 
 Yates V. Thomson, 615, 619, 621. 622, 
 
 630. 
 Yeaman v. Trotter, 725. 
 Yeaton v. Fry, 753. 
 Yeatman v. Dempsev, 1108. 
 Yeats V. Yeats' Tr., 449, 450, 469. 474. 
 York Buildings Co., 355, 614. 
 
 I, V. M'Kenzie, 642. 
 
 II V. Gosoman, 253. 
 Yorkstoun v. Grieve, 436. 
 Young, 84, 194, 984. 
 // V. Brandcr, 670. 
 ■I V. Earl of Bute, 892, 1096. 
 ,1 V. Calderwood, 709, 710. 
 // V. Cleghorn, 67. 
 II V. Giffen, 6. 
 " V. Glen, 441, 442, 551. 
 -/ V. Grote, 542. 
 // V. List, 377. 
 // V. Livingstone, 727. 
 II V. Nicolson, 728. 
 ,/ V. Patton, 923. 
 „ V. Pollock, 261, 264, 266. 
 (/ V. Sheridan, 252. 
 " V. Simpson, 394. 
 /, V. Ritchie, 442, 444, 497, 553. 
 II V. Thomson, 705. 
 // V. Watt, 832. 
 It V. Wauchope's Heirs, 568. 
 „ V. Wright, 823, 874. 
 I, V. Young, 933. 
 I, & Co. V. Commissioners of Excise. 
 
 1068, 1069. 
 II II V. Dewar, 143. 
 
 ,/ V. Muir, 856, 869. 
 ,/ V. Playfair, 931. . 
 // Ross, Richardson, & Co. v. Muir, 
 815. 
 Young's Children v. Anderson, 436. 
 
 // Trs. V. Paisley Bank and Scott, 
 489, 540. 
 Younger v. Pollock, 917, 949, 950. 
 Yule V. Robertson, 926. 
 
 Zincean v. Kinlock, 726.
 
 A TREATISE 
 
 ON 
 
 THE LAW OF EVIDENCE 
 
 IN SCOTLAND. 
 
 Every cause which comes before a court of justice embraces two 
 questions, namely, tirst, Avhat are its facts ; and, second, what is the 
 law applicable to those facts. The first of these questions is deter- 
 mined by evidence, which is of various kinds, according to the na- 
 ture of the facts to be ascertained and the means available for in- 
 vestigating them. In all systems of jurisprudence there are rules 
 for determining the admissibility and value of the different kinds 
 of evidence, and the modes in which they may be adduced ; the 
 main object of such rules being, to exclude valueless and deceptive 
 proofs, to secure regularity in the investigations, and to confine 
 within reasonable limits the duration and expense of judicial pro- 
 ceedings. 
 
 Most countries also recognise forms for the efi'ectual constitu- 
 tion, transmission, and extinction of certain rights and obligations ; 
 wliilo some transactions are not completed uiilil (hoy have been en- 
 tered in an aiq)ropriat<.' register, in order thai their existence may 
 Ih' known to all persons interested in them.
 
 Ixxii INTllODUCTOKY. 
 
 The Law ul' Evidence comprelieiids the rules as to judicial in- 
 vestigation into matters of fact, and the general principles regard- 
 ing formal writings and registers ; the technical details of which 
 fall within the province of the Conveyancer. 
 
 In the following pages the Law of Evidence in Scotland will he 
 considered in two parts ; the first of which will embrace the gene- 
 ral rules applicable to all kinds of evidence ; and the second will 
 deal with the more detailed rules regarding the different items of 
 which the proof in a cause may be composed, or — as they are usu- 
 ally termed — the different instruments of evidence.
 
 PAET FIRST. 
 
 GENERAL RULES APPLICABLE TO ALL KINDS 
 OF EVIDENCE.
 
 PART FIRST. 
 
 GENEEAL RULES APPLICABLE TO ALL KINDS OF 
 EVIDENCE. 
 
 TITLE I. 
 
 OF THE BURDEN OF PROOF. 
 
 § 1. In every case of disputed fact the first question to be 
 determined is, — upon whom does the burden of proof lie ? On this 
 depends the effect of cither party faiHng to prove his averments, as 
 well as the point, sometimes an important one, which party is to 
 open (a). 
 
 § 2. The fundamental principle regarding the burden of proof 
 is, that it rests with the party who would fail if no evidence were 
 adduced on either side (b). Accordingly, it always lies on the pur- 
 suer in the first instance ; because he is in petitorio, and no one by 
 merely raising an action can require his antagonist to disprove his 
 allegations ; and because in pari casu melior est conditio 2>ossi- 
 dentis (c). 
 
 (n) In civil jury trials in Euglaml, the question of the onus ofton arises at tho trial 
 in a discussion upon this latter point ; Taylor, 270 ; but in Scotland, the Court at an 
 earlier stage of the case, fix which party is to stand pursuer of the issue ; Macf. Pr., 99, 
 100. In criminal prosecutions in both countries, questions of the onus probandi are 
 evolved during the trial, as it always falls on the prosecutor to begin, while there is 
 sometimes a difficulty in determining how far he must go in his proof before being en- 
 titled to a verdict. (6) 1 Starkic Ev., 418— Taylor, 261. (c) Mitchell 
 r. Rankine. 1832, 10S..71G.
 
 2 nURDKN OF I'UUOF. § 3- 
 
 § 3. Whore there are mutual cuiijoiiied actions tlie question 
 which party must take the onus, depends upon the presumptions 
 arising; in the circumstances. If a defender has been obliged to 
 raise an incidental process, — as of declarator, reduction, or proving 
 of the tenor, he must prove the facts thereby put in issue ; because 
 the ver}^ ground on which he has to raise such an action is, that 
 the burden of proof lies upon him (d). When, however, the second 
 action is not necessary for the plea of the defender in the first, his 
 raising it will not transfer the burden. Tluis, where an heir raised 
 a reduction of his ancestor's settlement upon the head of deathbed, 
 and the trustees under it brought a declarator of liege poustie, and the 
 actions w^ere conjoined, the heir was made pursuer of the issue (e). 
 In conjoined actions of implement and reduction of a decree-arbi- 
 tral, the pursuer of the reduction (which came first into Court), was 
 allowed to stand pursuer of the issue {/)} In competing claims 
 for a succession, so long as neither party has been served heir, the 
 burden of proof ought not to be laid on one rather than on the other, 
 as both are in jJetitorio, and are generally on an equal footing as to 
 legal presumption. Accordingly, the recent Act regarding services 
 directs the Sheriff in cases of competing petitions of service to con- 
 join the petitions, and take evidence, " allowing to each of the par- 
 ties, not only a proof in chief with reference to his own claim, but a 
 conjunct probation with reference to the claim of the other parties " 
 (g). When the conjoined petitions are advocated, and a trial by 
 jury directed (Ji), there will be a difficulty as to which party is to 
 stand pursuer of the issue. In one case of this kind where a party 
 claiming to be heir was opposed by three competitors, claiming to 
 be connected with the deceased in a more remote degree, and all 
 denpng his relationship, the Court, in an advocation of the con- 
 joined petitions of service, appointed him to stand pursuer of the 
 
 (d) Thus -when the defender in a possessory action to have an erection removed 
 brings a declarator of his right to put it up, he stands pursuer of the issue ; Brand v. 
 Chatteris, 1842, 4 D., 345. (e) Macdougalls v. Gordon, 1831, 9 S., 392. The 
 
 deed being valid ex facie, was good till reduced. The question here was, which party 
 was entitled to stand pursuer. {/) M'Pliersons v. Ross, 183], 9 S., 797.1 (</) 10 
 
 and 11 Vict., c. 47, J 11. (h) Ibid., § 17. 
 
 1 Here, as in the case of Macdougalls, the question was, who was entitled to stand 
 pursuer, and so to have (he right of reply, to which the pursuer of an issue, at the date of 
 these decisions, was entitled. But as. according to present practice, the defender has 
 the right to speak last, the question who is entitled to stand pursuer does not now occur ; 
 13 and 14 Vict., c. 36, § 44.
 
 § 3. BURDEN OF I'ROOF. 3 
 
 issue in the first trial, as against all the other competitors. The 
 verdict was against him ; and the case is now in Court with regard 
 to farther procedure (i).^ In competitions of heirs, however, when 
 one claimant has been served, and another raises a reduction 
 of his service, tlie question arises upon the title of the latter to re- 
 duce ; the retour ur decree of service presumes propinquity, and the 
 new claimant must stand pursuer of the issue, whether he is near- 
 est heir to the deceased (Ic). But it would seem that this is not 
 the rule in reductions at the instance of the Crown as nlfimus 
 hacres {I). In one case where each of two claimants served himself 
 heir, and brought a reduction of the other's service, each had to 
 stand pursuer of an issue of his own propinquity (m). But there 
 were specialities in this case. In such competitions the onus fre- 
 quently shil"ts in the course of the trial, as it is the form of the 
 action, and not presumptions from the facts of the case, wdiich fixes 
 the burden in the first instance (n).^ 
 
 Where the question of a right of public road w^as raised by the 
 proprietors of the ground bringing an action of declarator that 
 there was no public road in the direction, the Court required the 
 
 {i) Morris v. Morgan, 13tli Xov. 1853. The case has been appealcd.2 (A) Wil- 
 
 lox V. Farrcll, 1846, 8 D., 1226— M'Lean v. M'Lean, 1849, 11 D., 880— Douglas v. 
 Hamilton, 1760, 2 Pat., 143. {1} M'Lean v. Off. of State, 1846, 5 Bell's App. 
 
 Ca., 60. (m) Watson v. Watson, 1834, 7 W and S., 535 ; and 1836, 14 S., 734. 
 
 (n) See beloiv, ? 12. 
 
 2 The competition in this case occurred in a multiplepoinding brought by the judi- 
 cial factor on the estates in question, and not, as stated in the text, in an advocation of 
 conjoined petitions. The verdict, which the Court applied on the motion of the defen- 
 ders, was that the case of the pursuers was not proven. In the appeal (besides the argu 
 ment on the terms and form of the verdict) it was contended (1) that the judicial fac- 
 tor, as representing the estate, was the proper contradictor of the issue, and that as he 
 had not been made a defender of the issue, there had been no proper contradictor ; (2) 
 that tlie cases of all the claimants should have been sent to trial at once before the 
 same jury, and that the appellants should not have been made to stand pursuers against 
 all the other claimants. But the House of Lords approved of the procedure adopted 
 for tlie trial, and held that those claiming beneficial interest on the estate wore the pro- 
 per defenders of the issue, and that no greater obligation had been imposed on the 
 appellants than every one in similar circumstances had necessarily to undertake. The 
 House, however, thought that the verdict was uncertain, and they remitted the cause ; 
 Morgan v. Morris, 1855, 2 Macqueen, 342. 
 
 3 Where tlie defender, in a reduction of his confirmation as executor-dative qua near- 
 est of kin, denied the pursuer's legitimacy, and the pursuer did not aver that his father 
 and mother hail been regularly married, but stated that they were habit and repute 
 married persons, the Court refused the pursuer an issue, but, with consent of the defen- 
 der, allowed him a proof of his legitimacy, reserving the question whether he was a com- 
 petent witness ; Swinton r. Swinton, 1862, 24 D., 833. 
 
 a2
 
 4 BUKDE^" OF PROOF. § ^^- 
 
 dt'fendcr in the action to stand pursuer of the issue, on the ground 
 tliat lie was the real claimant, and that the proprietors were really 
 on the defensive (o). It was observed on the hench tliat there is 
 no general rule as to the burden of proof in such cases, Imt that the 
 decision then pronounced W'Ould rule the greater proportion of them 
 in future. 
 
 § 4. It is only wdien the defences contain a simple denial of 
 the pursuer's averments, that the onus falls as a matter of course 
 upon him. In the more common case of the defence being laid 
 upon explanations or counter averments, which in their nature 
 admit of proof, the question which party must take the lead is 
 determined by more discriminating rules {p). 
 
 The leading rule is one " which natural reason and common 
 sense dictate," namely, that the party alleging the affirmative must 
 prove it (q). And the operation of this rule is not determined by 
 the mere form, but by the substance and effect of the averment, 
 which can generally be stated either affirmatively or negatively by 
 a slight change of expression (r). 
 
 This leading rule, however, is subject to several exceptions. 
 
 § 5. Where the legal presumption is in favour of one party's 
 plea, tlie party maintaining the opposite must prove it, although 
 involving a negative (s). Thus one who alleges that a person is not 
 sane must prove it, the presumption being in favour of sanity (t).'^ 
 Thus also, as there is a strong presumption against documents vi- 
 tiated in essential parts, it falls on those claiming under such deeds 
 
 (o) Barings v. M'Queen, 1853, 15 D., 455. In some previous cases where the point 
 was not raised, the proprietor stood pursuer of the issue; Forbes v. Morrison, 1851, 13 
 D., 1404. (p) For example, where a landlord brought an ejectment against a 
 
 party claiming to sit by sublease from the landlord's tenant, and the landlord denied 
 that the principal tenant's lease gave power to subset, it was held that the existence of 
 the power must be proved by the tenant ; and, the lease having been lost, the subtenant 
 was ejected; E. Glasgow v. Hamilton, 1851, 13 D., 1290. (g) 1 Starkie, 418— 
 
 (The quotation in the text is from this work)—! Phil., 403— Taylor, 261—1 Greenleaf, 
 98— DoMTies V. Cassels, 1829, 2 De. and And., 134— Aitken v. Charles & Co., 1830, 8 
 S., 446, per Lord Justice-Clerk Boyle — Bishop v. Mersey and Clyde Nav. Co., 1 830, 2 
 De. and And., 295— Eathbone v. Glenny, 1833, 11 S., 574— Brand v. Charteris, 1842, 4 
 D., 345— Eamsay v. M'I.ellan, 1845, 8 D., 142— Johnston v. Macdonald, 1834, 12 S., 
 568— ■Waddell's Trus. v. Scot, 1833, 11 S., 655. (r) Soward v. Leggett, 1836, 
 
 7 C. and P., 613 ; per Lord Abinger, 1 Starkie Ev., 418. (s) 1 Starkie Ev., 422 
 
 —1 Phil., 495— Taylor, 263. {t) Towart v. Sellars, 1815, 5 Dow, 231— Bell's 
 
 Prin., 2108.4 
 
 * Sutton V. Sadler, 1857 : 3 Scott's N. K., 87.
 
 § 6. nuuDKN (»]• ritooF. 5 
 
 to prove that the altenitioiis were imiJe iiiiioeeiitly (w). The l(;gal 
 I»re,sumptioii in iavour of life re(|uires the party averring deatli to 
 prove it, or circumstances sufficient to overcome the presump- 
 tion (iv).^ In an action for infringement of a patent, the exist- 
 ence of the patent is prima facie e\ddence of its originality, so as 
 to throw the onus of proving tlie opposite on the defender (x).^ A 
 party granting an acknowledgment in such terms as, " Eeceived 
 from A B the sum of £12," and alleging that it was not granted 
 with the view of creating an obligation to repay, but for some other 
 purpose, e.g., as a receipt for money paid him on behalf of a joint 
 adventure, must prove his averment {ij).'' But wOiere the acknow- 
 ledgment is in a bill on which prescription has run, the burden of 
 proof is reversed {z). Where bills were challenged as having been 
 obtained from a party without value and on false representations, 
 and where the holders alleged that they received them from him 
 as donations, the Court required the cliallenger to stand pursuer of 
 the issue, although he pleaded that the presumption against dona- 
 tions threw the onus probandi on the holders of the bills (a). • 
 § 6. Where a presumption in favour of an averment arises 
 from tlio course of trade or business, the opposite must be proved, 
 
 (m) Whitehead v. Armstrong, 1836, 14 S., 544 — Armstrong v. "Wilson, 1842, 4 D., 
 1347— Miller v. Robertson, 1835, 13 S., 813— M'Lean v. Morrison, 1834, 12 S., 613. 
 
 {w) Tait, 478, and cases there cited— Wilson v. Hodges, 1802, 2 East., 312. 
 
 {%) Russell V. Crichton, 1838, IG S., 1155. {y) Martin v. Crawford, 1850, 12 D.. 
 
 960— Allan v. Murray, 1837, 15 S., 1130.7 {z) See the chapter on Sexennial 
 
 Prescription. (a) Willde f. Chalmers, 1854, 16 D., 961. 
 
 5 There being a presumption tliat a man's domicile of origin continues his domicile, 
 the onus lies on the party who alleges a dillerent domicile ; Aikman v. Aikman, 1801, 
 3 Macqueen, 854;jBer Lord Wcnsleydale, 877. 
 
 6 A certificate of registry was held such prima facie evidence of title to a ship, that 
 those holding it obtained unconditional recal of arrestments used by creditors of the 
 former owners, though the arresters averred that the transference was fraudulent and 
 collusive ; Dufl'us & Lawson v. Mackay, 1857, 10 D., 430. 
 
 7 Fraser v. Bruco, 1857, 20 D., 115. In Thomson «;. Geekic, 1861, 23 D.. 693, 
 Geekio raised an action for £30, founding on a document in the following terms : — 
 " Received from G the sum of £30 sterling, as per agreement." The document was 
 holograph of and signed by the defender. The majority of the Court held that the 
 words " as per agreement " did not ailcct the otius probandi, and that it was to be pre- 
 sumed that the money had been advanced in loan, and not as a consideration for certain 
 services, as alleged by the defender. But the Lord Justice-Clerk Inglis (dift'ering from 
 the rest of the Court) thought the document disclosed an apparent ambiguity, that the 
 party founding on it ought to sliow that the agreement referred to was consistent with 
 his claim ; and, thorofuro, that tho onus? wns in the fir.^t instance on the pur.=;uer.
 
 6 BURDEN OF PROOF. § 6- 
 
 altliuugh a negative (6). Thus in actions upon contracts inferring 
 Avarrandice, e.g., a contract for tlie sale of a horse, it does not lie 
 ■with the i^ursuer to prove a special warrandice, but with the de- 
 fender to prove that there was none (c).^ And under an issue of 
 partnership it is presumed, until the contrary is proved, that the 
 contract was to carry on business as open and avowed partners -{d).^ 
 Thus also, where there had been a regular course of business be- 
 tween the pursuer and defender, under which the latter received 
 money from the former and accounted for it statedly, the burden 
 of proving that he did not account in any individual instances falls 
 on the pursuer (e).^*^ On the same principle, where there is proof 
 of the regular practice of a house of business to dispatch its letters 
 in a particular manner to the post-office, it is not necessary to prove 
 that the individual letter in question was so despatched (/); and 
 proof that a letter was put into the post-office seems to lay the onus 
 of proving non-delivery on the party averring tliat fact {g)}^ 
 
 ' {b) Stewart v. Gordon, 1881, 9 S., 466. (c) M'Bey v. Eeid, 1842, 4 D., 349. 
 
 (d) Fraser v Hair, 1848, 10 D., 1402. (e) Tait, 466, and cases ib. cit.— Evans 
 
 V. Birch, 1811, 3 Camp., 10— See Gye and Co. v. Hallam, 1834, 12 S., 311. 
 
 (/) Sandeman v. Thomson, 1831, 10 S., 4— Eobertson v. Gamach, 1835, 14 S., 139 
 —Stock V. Aitken. 1846, 9 D., 75— Galbreatli v. Warden, 1820, Hume D., 79.' 
 
 (^r) Stewart v. Wriglit, 1821, 1 S., 213, and cases in preceding note." 
 
 8 Section 5 of the Mercantile Amendment Act provides, — " Where gooda sludl, after 
 the passing of this Act, be sokl, the seller, if at the time of the sale he was without 
 knowledge that the same were defective, or of bad quality, shall not be held to have 
 warranted their quality or suflSciency, but the goods, with all faults, shall be at the risk 
 of the purchaser, unless the seller shall have given an express warranty of the quality 
 or sufBciency of such goods, or unless the goods, have been expressly sold for a specified 
 and particular iJurjTOse, in which case the seller shall be considered, without such war- 
 ranty, to warrant that the same are fit for such purpose." — 19 and 20 Vict., c. 60. The 
 term " goods " in the Mercantile Amendment Act, comprehends horses (Young v. Gif- 
 fen, 1858, 21 D., 87— Sim v. Grant, 1862, 24 D., 1033) ; and, therefore, the purchaser of 
 a horse suing for recovery of the price, on the ground that the horse was unsound, was 
 required to put in issue whether the defender gave an exj^ress warranty that tlie horse 
 was sound ; Young v. Giff"en, ut supra. 
 
 9 A pursuer, who wished to prove a partnership, and that each partner had equal 
 shares, was obliged to take ^ issue whether the parties carried on business as copart- 
 ners with equal shares, although he argued that there was a presumption for equality ; 
 Aberdeen Town and County Bank v. Clark, 1859, 22 D., 44. 
 
 1" When accounts have been balanced, and docqueted as correct, for a series of years, 
 the onus of proving error lies on the party disputing them ; Maclaren or Law v. Wil- 
 son, 1862, 24 D., 577— Laing v. Laing, 1862, 24 1)., 1362. 
 
 11 Mackenzie v. Dott, 1861, 23 D., 1310. The service of various statutory notices 
 is sulficicntly proved by proof that they were put in the post-office duly addressed in 
 such time as to admit of delivery in the ordinary rourse within fhe period proscribed by
 
 § 7. BURDEN OF mOOF. 7 
 
 § 7. lu gt'iiL'ial, ulsu, the iicgutive must be proved when it in- 
 volves a criminal omission, and there is consequently the presump- 
 tion of innocence against it (A). Accordingly, in an action in Eng- 
 land for putting combustil>les on board the plaiiitiir's ship without 
 notice of their nature, in consequence of which the ship was burnt, 
 the plaintiff had to prove the want of notice (i) ; and in a prosecu- 
 tion for cutting trees without consent of the j^roprietor, who had 
 given directions for conducting the prosecution, but had died before 
 the trial, his non-consent to the cutting had to be proved (k).^ The 
 same principle is often illustrated in prosecutions laid upon neglect 
 of duty. But in cases of concealment of pregnancy, the prosecutor 
 has only to prove the pregnancy, and the negative fact of the panel 
 not having revealed her condition to any one will rest on the aver- 
 ment to that effect in the libel until it be disproved (I). This arises 
 from the impossibility of the prosecutor proving concealment from 
 every person, and the facility with which the panel can show that 
 she revealed her state to some person, if that be the fact. It comes 
 under the rule as to a fact falling peculiarly within the party's own 
 knowledge (m). 
 
 The negative must also be proved where it is an averment of 
 fraud («), or of omission or irregularity, which, although not crimi- 
 nal, is culpable (o). On this ground, in an action on a policy of 
 sea insurance, the defence that the vessel was not fully equipped, 
 although a negative, must be proved (p) ; and the same holds as to 
 an averment of concealing material facts in a contract of insur- 
 ance (q). On the same principle, where an extract decree ex facie 
 regular, but which did not bear the date of extracting (that not 
 being necessary), was charged on, and the charge was suspended on 
 the ground that there was no proof of the six days having elapsed 
 
 (A) 1 Starkie Ev., 421—1 Greenlcaf, 106. (?) Williams v. E. lud. Co., 1802, 
 
 3 East., 192. (A) R. v. Hazy, 1826, 2 C. and P., 458 12— see also R. v. Rogers, 
 
 1811, 2 Camp., 654. (l) 1 Hume, 294—1 Al., 155. (m) fnfra, §§ 9 and 10. 
 
 (n) Campbell v. Aberdeen Ins. Co., 1841, 3 D., 1010. (o) 1 I'hil., 493— Taylor, 
 
 263—1 Greculcaf, 106. (p) Harvie v. Smith, 1818, 1 JIur., 302. (y) El- 
 
 kin V. Jansen, 1845, 13 M. and W., 655— Campbell v. Aberdeen Ins. Co., 1841, 3 D., 
 1010 — See another illustration of the principle noticed in the ti-xt in Condio v. M'DonaM, 
 1834, 13 S., 61. 
 
 the particular Act — see 19 and 20 Vict., c. 58, g 9 (Registration of Voters) ; 19 and 20 
 Vict., c. 103, § 50 (Nuisance Removal) ; 20 and 21 Vict., c. 73. § 10 (Smoke Nuisances 
 Amendment) ; 25 and 26 Vict., c. 89, 5§ 62, 63 (Companies Act, 1862). 
 
 12 The prosecution was for the statutory oflence of cutting trees •' without the con- 
 sent of the owner ;'" 6 tieo. Ill, c. 36.
 
 8 BURDEN ON PROOF. § 7- 
 
 before the extract was made, it was held that the suspender must 
 prove that the extract was issued prematurely (r). So a party 
 alleging that an arbiter decided without hearing parties, stands pur- 
 suer of the issue (s). 
 
 § 8. A party who maintains against another a forfeiture on the 
 ground of non-implement of a condition of the possession, must prove 
 the non-implement ; because the other party may maintain his pos- 
 session till ground be shewn for disturbing it. On this principle 
 it was held in England that a landlord attempting to eject his 
 tenant on the ground of failure to insure against fire, must prove the 
 failure, and that he will not be relieved from doing so by the neglect 
 of the tenant to produce the policy, the only effect of its absence 
 being to let in secondary proof of it (t). In the same manner the 
 party averring deficiency in value must prove it, as in the case of 
 land assigned in payment of a legacy (u). The burden of proving 
 the fairness of a transaction with an expectant heir for burdening or 
 selling his expectancy, is held in England to lie on the party deal- 
 ing with him {lu). This, although apparently an exception to the 
 general rule, is really an illustration of it, because there is in Eng- 
 land a presumption against such contracts being fair. Accordingly 
 in Scotland, where there is no such presumption, the heir challeng- 
 ing the transaction has to prove that it was unfair or fraudulent (x). 
 
 § 9. Another exception to the general rule is, that a party must 
 prove his averment either affirmative or negative of a fact peculiarly 
 within his knowledge (y). Thus one who pleads his nonage at a 
 particular date must prove it (z). Thus also when the subject of 
 a contract of hiring was sound when borrowed, but was unsound 
 when returned, the borroAver has to prove that he bestowed proper 
 care upon it (a).^^ It is partly on this ground that when goods 
 
 (r) Grindlay v. Saunders, 1830, 8 S., 642, (s) M'Pherson v. Ross, 1831, 
 
 9 S., 797. {t) Taylor, 263— Doc v. Whitehead, 1838, 8 A. and E., 571, 
 
 (m) 1 Starkie, 420— Berty v. Dormer, 1701, 12 Mod. R., 526. (w) Bernal v. 
 
 M'Dougal, 1814, 3 Dow, 151, and cases cited by defender in M'Kirdy v. Anstruther, 
 1839, 1 D., 855. (x) M'Kirdy v. Anstruther, 1839, si/2)ra. (y) 1 Starkie 
 
 Ev., 420—1 Phil., 495— Taylor, 269—1 Greenl., 105— Philip v. Gordon, 1848, 11 D., 
 179, per Lord Jeffrey— R. v. Burdett, 1820, 4 B. and Aid., 140, per Holroyd— Dickson 
 V. Evans, 1794, 6 T. R., 57, per Ashurst. See also tVi/ra, § 16 ad fincm. {z) Bortli- 
 
 wick V. Carruthers, 1787, 1 Term R., 648. (a) Robertson v. Ogle, 23d June 1809, 
 
 F.O.— Binney v. Veaux, 1679, M., 10,079— Pyper v. Thomson, 1843, 5 D„ 498— Mar- 
 quis V. Ritchie, 1823, 2 S., 386. 
 
 ^^ A horse died in the hands of an intending purchaser who had him on trial ; and 
 the Court, holding that the intending purchnFser had not proved that the death of tlie
 
 § 10. BL'KUKN OF i'ii(JOF. f) 
 
 have been [)Ut on board a earrying vessel in a sound condition, but 
 have been delivered damaged, the shipper must prove such a cafius 
 fortuitus as will exonerate him {h)}^ And if the vessel has been 
 stranded, it is not enougli for him to prove generally that the crew 
 were careful in landing the cargo, but the loss at sea (jf the parti- 
 cular goods must be made out (r-). 
 
 § 10. The exception last noticed holds even against the accused 
 in criminal cases, notwithstanding the presumption of innocence. 
 An example of this occurs in cases of concealment of pregnancy, 
 where it lies on the prisoner to prove that she revealed her condition 
 to some person (d). So, in a prosecution for having game in one's 
 possession without a qualification, it was held in England that the 
 accused must prove his qualification (e) ; and the same rule was 
 applied in an action in England for the penalties for practising as an 
 apothecary without a license (/). This principle will be applied in 
 all prosecutions, civil or criminal, for doing what no one is permitted 
 to do without a special qualification {cj). The same principlejias 
 been adopted by the legislature in the Acts for protecting the coinage 
 {h)^'^ and for preventing forgeries of bank notes (i), and frauds upon 
 the revenue by erasing or altering stamps on paper or vellum (k) ; 
 all which statutes lay on the panel the burden of proving a lawful 
 excuse for his possession of the coining utensils, forged notes, or 
 altered stamps, as the case may be.^^ 
 
 (6) Joiic3 V. Ross, 1830, 8 S., 495. This also arises from tlie peculiar rules of tho 
 edict nautae caitponcs, &c. (c) Eae v. Hay, 1832, 10 S., 803. (rf) 1 Hume, 
 
 294—1 Al., 155. (e) R. v. Turner, 1816, 5 Ma. and Sel., 206. (/) Apoth, 
 
 Co. V. Bentlcy, 1824, Ry. and Mo., 159. {g) 1 Phil., 490—1 Greenl., 105— 
 
 Taylor, 270. (A) 2 "Will. IV, c. 34, § lO.'^ (0 45 Geo. Ill, c. 89, § 6, 
 
 (k) 3 and 4 Will. IV, c. 97. 
 
 horse was not caused by his fault, held that he should pay the owner its value ; Tullurs 
 V. Walker, 1858, 20 D., 1238. 
 
 1* It is provided by g 17 of the Mercantile Amendment Act—" That from and after 
 the passing of this Act, aU carriers for hire of goods within Scotland shall bo liable to 
 make good to the owner of such goods all losses arising from accidental iire while such 
 goods were in the custody or possession of such carriers." — 19 and 20 Vict., c. 60. 
 AVhen goods are damaged or lost on board ship without " the actual fault or j.rivity " of 
 the owners, tho owners arc not liable for " an aggregate amount exceeding eight jiounds 
 for each ton of the ship's tonnage," as defined in the Act 25 and 20 Vict., c. 63, g 54 
 (Merchant Shipping Acts Amendment Act, 1862). 
 
 15 The Act 2 Will, IV, c. 34, is repealed by 24 and 25 Vict., c. 95. But there are 
 various provisions to the eftect stated in the text in the Coinage OftVnccs Act, 24 and 
 25 Vict., c. 99. See ?? 6, 7, 8, 23, 24, 25. 
 
 1* So in proceedings under the Passengor.=: .Aincndmcnt .\''(, a party pleading (hat a
 
 10 BURDEN OF PUOOF. ' § 10- 
 
 'j'lie reasun for the exception in tliese cases is the extreme diffi- 
 culty, sometimes amounting to impossibility, of proving the opposite 
 averment ; ^vhereas the party within whose knowledge the fact must 
 lie, if it exist, can have comparatively little difficulty in proving 
 
 it (0. 
 
 § 11. The English authorities recognise another exception to 
 the rule that the affirmative must he proved, namely, where the 
 negative averment is essential to the case of the party making 
 it (m). No Scotch decision has been found which expressly settles 
 this principle ; but it seems to be supported by the rules, that the 
 party averring want of probable cause must prove it (n); and that 
 an heir reducing a service by his ancestor's widow to her terce, 
 must prove that a living child Avas not born of the marriage, even 
 where the widow admits that the marriage was dissolved within 
 year and day (o). 
 
 (0 See 1 Greeul., 105. (m) 1 Starkie Ev., 623— Taylor, 263— Williams v. 
 
 E. India Co., 1802, 3 East., 192— R. v. Eogers, 1811, 2 Camp., 054— R. v. Hazy, 1826, 
 2 C. and P., 458. (w) Swayue v. Fife Bank, 1836, 14 S., 726— See also Purcell 
 
 V. Macnamara, 1808, 1 Camp., 200, 9 East., 361. (o) Paxton v. Paxton, 1840, 
 
 2 D.. 1102. 
 
 ship is exempt from the provisions of the Act, must prove the exemption ; and in any 
 information, complaint, or process under the Act, the defender must prove any exemp- 
 tion, proviso, or condition, of which he desires the benefit ; 18 and 19 Vict., c. 119, § 89. 
 There is a similar provision in the Tweed Fisheries Act, 20 and 21 Vict., c. 148, § 75. 
 So (§ 70 of that Act and § 10 of the Tweed Fisheries Amendment Act, 22 and 23 Vict., 
 c. 70) any person having foul salmon in his possession must prove that they were not 
 taken from the river contrary to the provisions of the Act. The proof that herrings or 
 herring fry, sold, disposed of, or possessed, during the annual close time by any person in 
 the localities adjoining the west coast of Scotland, were not taken contrary to the enact- 
 ments relative to the Scotch Herring Fishery, lies on the party accused ; 24 and 25 Vict., 
 c. 72, 2 1. The English Act 1 and 2 Will. IV, c. 32, provides, ? 42, " that it shall not be 
 necessary in any proceeding against any person under the Act to negative by evidence 
 any certificate, license, consent, authority, or other matter of exception or defence ; but 
 the party seeking to avail himself of any such certificate, license, consent, authority, 
 or other matter of exception or defence, shall be bound to prove the same." This Act, 
 so far as relating to licenses to deal in game, is extended to Scotland ; 23 and 24 Vict., 
 c. 90, 2 13. Thus, also, if a person sells an article with a false trade mark, or with the 
 trade mark of another person and without authority, and neglects or refuses on demand 
 by a Justice of Peace to tell from whom he got it, such neglect or refusal is deemed 
 prima facie evidence of his knowledge that the trade mark was false or used without 
 authority ; 25 and 26 Vict., c. 88, g 6. On similar principles, the Merchant Shipping 
 Act of 1862 provides, § 28, that in case of damage to person or property arising by the 
 non-observance of any regulation made under the Act, the damage shall be deemed to 
 have been occasioned by the wilful default of the person in charge of the deck of tlie 
 whip at the time, unless it is shown that circumstances made a departure from the regu- 
 lation necessarv ; 25 and 26 Vict., c. 63, f 28. '
 
 § 12. jnJHDEX OF ritooF. 11 
 
 It is not easy, however, to define the limits of this exception ; 
 as, in one sense, every averment on which a party rehes is essential 
 to his case. Its proper })rovince seems to be where the negative 
 averment is the foundation of the libel or of some special defence, 
 and is not merely a denial of an aflirmative allegation on which the 
 opposite party has in the first instance to found.^^ 
 
 § 12. It is not always necessary for the party bearing the burden 
 to prove his case out and out. He will satisfy the onus by proving 
 a fact wliich, in the absence of contrary evidence, raises a presump- 
 tion that his averment is true (^j). Upon his doing so, the burden is 
 reflected on to the other party, by whom it must be borne until he 
 again can stand upon some fact of presumption, which, unless redar- 
 gued, warrants a decision in his favour. Thus, while the pur-suer of 
 a declarator of Imstardy must bear the onus in the first instance, he 
 has only to prove that the defender was habit and repute a bastard 
 in order to throw on him the burden of pro\'ing his legitimacy (q). 
 On this ground, where a daughter raised an action of reduction of a 
 service obtained by a nephew of their common ancestou, and the 
 nephew alleged that she was illegitimate, the daughter being in peti- 
 torio had to stand pursuer of the issue whether she was the deceased's 
 legitimate daughter, in order to make out a prima facie case of 
 legitimacy ; but it was observed on the bench that the onus " may 
 
 {p) 1 Stivrkic Ev., 421. {q) K. xVdv. v. Craw, 1C69, M., 12,637— Cuuniugham 
 
 V. Montgomery, 1670, M., 12,637— Bank., 1, 5, 52— Ersk., 3, 8, 66— Lindsay v. Kerr, 
 1821, 2 Sh. Ap. Ca., 148. The report of Lindsay v. Kerr in the House of Lords states 
 that the question in the text was raised in that case ; but the pleadings show clearly that 
 the i)artios were agreed as to the law, and that they only diftcred as to whether the liabit 
 and repute had been proved. 
 
 17 Wliere a daughter, whose mother had died in Scothmd, sued her father for litr 
 share of the goods in comnnmion, and the father defended on tlxe ground that the law 
 of Scotland did not apply, because he was not domiciled in Scotland either at the 
 date of the marriage or at the date of its dissolution, the Lord Ordinary thought that as 
 the questicm of domicile was raised in defence, the defender should lead in the proof. 
 But the Court decided that the onus of proving a Scotch domicile at the dissolution of 
 the marriage lay on the pursuer, as it was the basis of her ca.'^e, but that the defendiT 
 should undertake the proof of a foreign domicile at the date of the marriage, as that Wii.s 
 not a part of the pursuer's case but the basis of a special defence ; Kennedy v. Bell. 
 185'J, 22 D., 26'J. 
 
 "When a proprietor diverts running water on his land from its ordinary channel " ho 
 must show that he does so in a la\vful manner, and is not diverting without returning 
 any water which he does not use for primary purposes," — per Lord Justice-Clerk (Inglis), 
 Hood V. Williamson. 8t1i Feb. 1861, 22 D., 496.
 
 12 BURDEN OF PROOF. § 1^"-^- 
 
 shifi ill the course of the trial" (r)}^ Proof of a certain usage of 
 trade \d\l throw the hurJeu of proving a departure from it in a par- 
 ticuLar transaction upon the party alleging that fact (s). If a party 
 averrino- insanity proves that the individual in question had been 
 cognosced, he casts on the other party the burden of proving 
 sanity (0 ; and proof that the grantor of a deed was naturally weak 
 and facile, although legally capable of making a deed, has been held 
 to reflect the burden of proving that he fully understood the parti- 
 cular deed upon the party claiming under it (m). In the same way, 
 in reductions on the head of deathbed, the pursuer has only to prove 
 that at the date of the deed the deceased was ill of the disease of which 
 he died ; whereupon the defender must make out his exception that 
 the deceased survived sixty days (iv), or went to kirk and market(a'). 
 In an action of damages against a railway 'company or coach pro- 
 prietor, for injury sustained through the fault or negligence of 
 the defenders, or their servants, or through the insufficiency of their 
 carriages or works, where the defenders admit the injury, but deny 
 that it was occasioned by any fault or defect for which they are 
 responsible, it is enough for the pursuer to shew that it arose from 
 the insufficiency or fault alleged, whereupon the defenders will have 
 to prove that the defect was one for which they are not respon- 
 sible (y). Nay more, the fact that the machinery gave way, when 
 applied to its proper purpose, raises the presumption of its insuffi- 
 ciency, and throws on the defenders the burden of proving the 
 opposite (z). 
 
 § 13. The onus may shift in consequence of the presumption 
 arising from unexplained mora to bring forward a claim (a), or 
 
 (r) Gilclirist v. Whicker, 1852, 14 D., 919. (s) See Stewart v. Gordon, 1831, 
 
 9 s., 466. (t) Ivory's Ersk., p. 200, note 241— Bell's Pr., § 2103. 
 
 (m) White V. Ballanlyne, 1823, 1 Sh. Ap., 472, reversing. (?<-) 1G96, c. 4. 
 
 (z) Adam on Ju. Tr., 62— Hog^' v. Nimmo, 4 Mur., 301— Hardie v. Macall, 1847, 9 
 D., 698. (y) M'Glashan v. Dundee and Perth Ry., 1848, 10 D., 1397— Macauley 
 
 V. Buist, 1840, 9 D., 245— Anderson v. Pyper, 1820, 2 Mur., 269— Cargill v. Dundee 
 and Perth Ry., 1848, 11 D., 210— See also Sneddon v. Addie, 1849, 11 D., 1161. 
 
 (z) Per Lord Fullerton in Macauley v. Buist, sicpra. His Lordship observed that in 
 such a case the pursuer is not bound to prove a specific defect ; but it is enough if he 
 shews that the accident took place in circumstances which raise the presumption of a 
 defect, as where a crane when at work flew to pieces. Upon this ground, proof that a 
 stage-coach broke down lays on the proprietor the burden of proving its sufficiency ; 
 Lyon V. Lamb, 1838, 16 S., 1188. (o) Sinclair v. Brown, 1837, 15 S., 770. This 
 
 does not hold if the delay is not beyond that occurring in the usual course of business. 
 or if it can be otherwise satisfactorily accounted for ; Armstrong v. Edin. and Leith 
 Shipping Co., 1825, 3 S., 464. 
 
 IS Swintnn v. Swinton, 1862, 24 D., 833— see vipra, I ."., note 3.
 
 § 15. BUliDKX OF PROOF. 13 
 
 cluillenge itcuis in an account {l>),^^ and this applies forcibly to the 
 presumption springing from acquiescence (c). 
 
 § 14. In criminal cases also the prosecutor may shift the bur- 
 den of proof on to the i)risoner, by proving facts wliich lead to a 
 legal presumption of guilt.-" Thus in cases of murder, the malice 
 essential to the crime "is inferred prma /«cie in the act itself of 
 intentional killing ; and it lies therefore with the panel to overcome 
 this presumption l)y evidence on his part of some of those circum- 
 stances of necessity or excusable infirmity, which may serve liim 
 for a defence " (d). If treason is proved, and knowledge of it is 
 traced to the prisoner, he is in strictness bound to prove that he 
 discovered it to some person, otherwise undue concealment will be 
 presumed (e). Thus also Baron Hume thinks tliat in a prosecution 
 for marrying without proclamation of banns, the prosecutor, by 
 proving that no certificate of proclamation was produced to the 
 minister at the marriage ceremony, transfers to the panel the bur- 
 den of proving that the proclamation was duly made (/). Much 
 reliance, however, should not be placed on such precedents in cri- 
 minal cases, which are usually too full of specialities to admit of 
 being fixed rigidly by rules as to conflicting presumptions. Eflect 
 should always be given to a reasonable ground for inferring inno- 
 cence, although a nice adjustment of opposing probabilities should 
 lead to a contrary result (g). 
 
 § 15. It may be added that, generally speaking, less strong 
 evidence will shift the burden when the party bearing it has to 
 prove a negative, than when he has to prove an affirmative (h). 
 
 (b) Cunningham v. Duncan, 1837, 2 Sh. and M'L., 984, aff., 12 S., 678— Rose v. 
 M'Leay, 1887, 2 Sh. and M'L., 958, aff., 8 S., 1037, 11 S., 546— Condie v. Stewart, 
 1834, 13 S., Gl— Smith v. Maxwell, 1833, 11 S., 323— See also Thomson v. Murray, 1824, 
 3 S., 297.19 (c) Cases in preceding note. {d) 1 Hume, 254—1 Al., 49 
 
 — Blackst., 4, 201. (e) R. v. Thistlewood, 1820, 38 How, St. Tr., 691— Tay- 
 
 lor, 270. (/) 1 Hume, 466. (</) See this subject fully treated in the 
 
 title on Presumptive Evidence, infra. ( h) See this observed as to the pursuer 
 
 proving want of jirobable cause in an issue of judicial slander and malicious prosecution ; 
 per Just. -CI. Boyle, in llallam v. Gye, 1835, 14 S., 199 — see also K. r. Thistlewood, su- 
 pra — 1 Hume. 460 — Elkcu c. Juiison, 1845, 13 JI. and W., 055. 
 
 19 Maclaren or Law v. Wilson, 1862, 24 D., 677. 
 
 20 This rule is applied in various statutes. For example, to warrant conviction for 
 selling spirits in premises without a certificate, it is sufficient " in the absence of con- 
 trary evidence " to prove that some person other than the owner or occupant was at the 
 time found there drunk and di-iuking, and that such premises are, by repute, kept as a 
 shebeen, or had the utensils and fittings usually found in houses licensed for the sale 
 of spirits ; 25 and 26 Vict., c. 35, ? 19 — sec supra. § 10. note 17.
 
 14 BURDEN OF PROOF. § 16- 
 
 § 16. On the other hand, the Lurden of proof is not transferred 
 by sHght presumptions, but by those which are direct and tangible, 
 and to which one is shut up as the inference fairly deducible from 
 the circumstances. Accordingly, where the pursuer of an action 
 of damages for malicious prosecution had to prove want of probable 
 cause, it was held not enough for him to prove the defender's non- 
 appearance at the trial of the case complained of, because there 
 may be good grounds for preferring an indictment, although it may 
 be unjust to carry it to a trial (/). On the same principle, proof of 
 the act of suicide does not satisfy the burden of proving insanity 
 shortly before death (J:). Where a disposition ex facie absolute was 
 averred to have really been granted in trust, the disponee's state- 
 ment that the narrative of the price paid was untrue, but that not- 
 withstanding of this the disposition was absolute, was held not to 
 lay on him the burden of disproving the allegation of a trust (l)}^ 
 Nor is the presumption of onerosity in favour of the holder of a 
 bill of exchange removed by his admission that the particular 
 value specified in it was not the value really given (w).^^ g-^t sus- 
 
 (i) Per Ellenturgh in Purcell v. Macnamara, 180G, 1 Camp., 200, 9 East., 361— 
 See also S-n-ayne v. Fife Bank, 1836. 14 S., 726, where tlie onus of proving want of pro- 
 bable cause was liolclnot to be satisfied. (k) Walker r. Macadam, 1806, 1 Dow, 
 187. (/) Chalmers v. Chalmers, 1845, 7 D., 865. (m) Winton v. Gib- 
 son. 1831, 9 S., 662. 
 
 21 In Walker v. Buchanan, Kennedy & Co., 1857, 20 D., 259, a question occured as to 
 the burden of proof in reference to a deed ex facie absolute, admittedly granted at first 
 in security, but of which the qualification had, it was alleged, been cancelled by mutual 
 consent. The representatives of an annuitant raised an action of count and reckoning 
 against parties to whom the right to the annuity had been conveyed by an assignation 
 ex facie absolute. The defenders admitted that it was at first an assignation in security 
 merely, and had been qualified by a back -letter ; but they averred that the back-letter 
 had afterwards been given up and cancelled, and that it was agreed that the transaction 
 should be held to be an absolute assignation. This alleged change in the transaction 
 was denied by the pursuers. Lord Ivory (Lords President (M'Neill) and Curriehill con- 
 curring) thought the case materially different from the case of a right constituted origin- 
 ally by a deed ex facie absolute and unqualified. To that case the presumptions of sta- 
 tute applied, and the onus was exclusively on the party who challenged the absolute 
 nature of the deed ; but the same presumptions did not apply to the case of a right 
 which, though exfigura verborum conceived in an absolute form, was, in the primary act 
 of its constitution, given and intended to operate as a security merely; in that case the 
 question was not one of constitution but of alteration, and the burden of proof rested 
 on the party alleging the alteration in the transaction. Lord Deas held that the case 
 was one in which the pursuers had failed to adduce the statutory proof of trust. 
 
 22 But where in a suspension, by the acceptor of a bill for value received, of a charge 
 by the drawer, the charger stated that the bill had been drawn and negotiated for the 
 purpose of obtaining money for a joint adventure in which the suspender and he were
 
 § IG. BUIiDKX OF PROOr. 15 
 
 pieiuus circumstances, coml)inci] with a I'ulsc narrative oi" payment 
 of a price, will lay the Imrdcn on the party claiming under the 
 deed (ji).-^ A. prima facie pioof Avill sometimes be sustained where 
 the party against "whom it is adduced can easily redargue it, if it 
 be erroneous. For example, in an action of damages for injury 
 caused by the negligence of the defenders' servant when in charge 
 of their carriage, the pursuer was held to have discharged the bur- 
 den of proving ownership by showing that the carriage bore the 
 defenders' nameplate (o) ; and the burden of proof as to the driver 
 being their servant was shifted by showing that he had stated so at 
 the time of the accident {p). In such cases the pursuer must ad- 
 duce some evidence of the ownership or employment, because it is 
 the foundation of his case ; but a^5?7*;«rt /acze proof wdll suffice, as 
 it is a lact which Hes peculiarly within the defender's know- 
 ledge (</). It has been held that a woman claiming parochial re- 
 lief for her child has a prima facie case, sufficient to lay on the 
 parochial board the burden of proving that she can maintain both 
 herself and it {r).-^ 
 
 (n) Hotson v. Paul, 1831, 9 S., 685. (o) Gilchrist v. Ballochncy Kail. Co., 
 
 1850, 12 U., 979. (/j) M'Laren v. Rae, 1827, 4 Mur., 382 ; per Lord Chief Com- 
 
 missioner. But this case may be questioned, in so far as it admitted hearsay as prima 
 facie evidence of a fact in the cause. {q) Compare g§ 9 and 12. (r) Mackay 
 
 r.Baillie, 1853, 15 D., 971.21 
 
 the partners, that the adventure resulted in loss, which loss he, the charger, had paid ; 
 that the suspender fell to pay a part of tliat loss, and that he, the charger, restricted his 
 charge to the amount so duo by the suspender ; the majority of the Court held that 
 the bill afforded no presumption of value, and that the charger required to prove the 
 joint adventure on which he founded ; Blackwood v. Hay, 1858, 20 D., 631. 
 
 23 " Where any bill or note has been lost, stolen, or fraudulently obtained, the 
 holder of such bill or note suing or doing diligence thereon shall be bound to prove that 
 
 value was given him for the same ; but such proof may be made bv parole evidence." 
 
 19 and 20 Vict., c. 60, § 15. 
 
 In England, illegality or fraud in a previous holder throws on an indorsee the bur- 
 den of proving consideration. But mere want of consideration on the previous holder 
 has no such effect ; Fitch v. Jones, 1552, 2 Ellis and Blackburn, 238, 244. 
 
 The indorsee of a bill or note indorsed after it has become payable (and after the 
 passing of the Mercantile Amendment Act) is subject to all exceptions competent 
 against the indorser ; 19 and 20 Vict., c. 60, g 16. 
 
 21 In Laing v. Adamson, 1857. 19 D., 749. the Lord President (M'NeiU), expressing 
 the opinion of the Court, said " AVc do not consider that the case of Mackay lised any 
 abstract or absolute rule that, in such an application as the present, by a woman with 
 one child, the burden of proving that she is able to support that child is necessarily 
 laid on the parochial board. That depends on the circumstances of each case. The 
 circumstances for consideration may vary much, and little may turn the onus one way 
 or another."
 
 16 BURDEN OF PllOOF. § 16- 
 
 A party pleading on an instrunieut as a will holcigraph of the granter, maintained 
 that he sufficiently discharged the onus incumbent on him by proving that it was all in 
 one handwriting, and that, after that was proved, the presumption was in favour of the 
 authenticity of the will ; and he referred to the observations of Lord Jeffrey in Turnbull 
 V. Doods, 1844, 6 D., 903, as supporting that position. But the Court held that the onus 
 lay on the party propounding a document as a holograph will, to prove, not only that the 
 deed was all in one handwriting, but also that it was the deed of the alleged granter, 
 and that Lord Jeffrey's observations could not be regarded as establishing any contrary 
 doctrine. The judgment was affirmed on appeal ; Anderson v. Gill, decided 25th June 
 1850, but reported in 20 D., 1326, affirmed 1858, 3 Macqueen, 180. " When there is a 
 question of the authenticity of wi'itiug, the evidence in the case of deeds mortis causa 
 requires to be more satisfactory than in that of deeds inter vivos, especially if in the 
 latter case the alleged writer is still alive " — per Lord Mackenzie in Anderson v. Gill. 
 Lord FuUerton thought that the circumstance, that such a document was found in the 
 proper repositories of the deceased, might transfer the onus and throw on the other party 
 the necessity of showing that the document jDroduced was a forgery. 
 
 Since a man can hardly, without immediate detection, intrude himself unauthorised 
 into a public office, the onus of proving that a person acting in an official capacity was 
 duly appointed, is easily discharged. Thus, in a criminal prosecution for assaulting an 
 officer of the law, the appointment of the officer is proved sufficiently by his own oath, 
 if there be no evidence to the contrary. This rule was applied in the case of an assault 
 on water bailies under the Tweed Fisheries Acts. So, in a trial of a panel for having, 
 as post-master, infringed the Post-office Statutes, parole proof of the panel's appointment 
 was received by Lord Ardmillan on Circuit, though it was proved that there was a 
 wi-itten appointment by the Post-master General, which was not produced. In like 
 manner, in proceedings under the Passengers Amendment Act, the oath of a party that 
 he is an Emigration Officer, or a Custom-House Officer, is sufficient proof of his appoint- 
 ment, if there be no contrary evide^ice ; Lord Advocate v. Smith and Milne, 1859, 3 Ir- 
 vine, 507, 513— Lord Advocate v. M'Leod, 1858, 3 Irvine, 79, 91—18 and 19 Vict., c. 
 119, § 90 — Best on Evidence, 458 — Taylor, 155, 3d edition, and cases there quoted. 
 
 The foIlo\sang note as to the rules of evidence in Excise cases, showing the number 
 of averments in an information which the prosecutor does not require to prove, is ex- 
 tracted from' Bateman's "Excise Laws," p. 79, note (js) : — " The general rule of evi- 
 dence on the trial of a penal information is, that where the facts that constitute the 
 offence are all of a. positive nature, they must be established in evidence affirmatively by 
 the prosecutor. But where they are of a ner/ative nature, and afford ground of defence 
 and exemption from penalties, especially when such exemption comes by way of proviso 
 in a separate clause or Act of Parliament {Rex v. Jervis, 1 East., 647), they must be 
 proved by way of defence on the part of the defendant. The former part of this rule, 
 however, is greatly modified in favour of the prosecutor in Excise cases ; in which 
 several formal, and indeed substantial proofs are allowed to be dispensed with, or taken 
 for granted unless the contrary be proved. Thus an averment that a person is a com- 
 missioner, or officer, or office-keeper, is to be proved by the fact of his having acted as 
 such (7 and 8 Geo. IV, c. 53, § 17). And an averment that the Board has ordered a 
 possecution or made an election therein, is to be deemed sufficient without proof 
 (7 and 8 Geo. IV, c. 53, § 71 ; 4 and 5 Will. IV, c. 51, § 28). And a Treasury order 
 or Board's order, may be proved by the official letters, communicating the same to the 
 officer (7 and 8 Geo. IV, c. 53, § 72). An entry may be proved without producing the 
 original, and a non-entry by the general entrybook (7 and 8 Geo. IV, c, 53, § 19). 
 And an averment that a person is an excise trader, may be supported, although he car- 
 ries on the trade without entry. A person may be proved to be unlicensed by general
 
 § 10. I5URDEN OF PROOF. 17 
 
 evidence ; the production of his liceiiHc, if ho has one, rests upon himself. Survey 
 books and specimen papers are evidence of the facts tlierein entered; and it is a rule of 
 the Court of Excliequer to admit in evidence extracts and calculations from such books, 
 if the books themselves be in Court. Permits may be proved by the counterpart and 
 request note (2 Will. IV, c. IG, § 1!)). A judgment of condemnation in the Exche- 
 quer is conclusive evidence to all the world. The onus of jjroof of payment of duty, or 
 of the identity of Roods mentioned in a permit, lies on the dofendunt or claimant (7 and 
 8 Geo. IV, c. 53, § 76 ; 2 Will. IV, c. 16, § 28 ; and 3 and 4 Will. IV, c. 53, § 29). 
 In all cases of seisure the events are to be proceeded upon without inquiry into the fact 
 or form of seizure (7 and 8 Geo. IV, c. 53, § 64). And, generally, defects in form of 
 informations in summary proceedings are to be disregarded (7 and 8 Geo. IV c 53 
 § 73). 
 
 " In penal informations a day certain is always fixed for the commission of the of- 
 fence, but to support such statement or allegation it is not necessary to prove that the 
 offence was committed on the day named. If it is proved to have been committed on 
 any day before exhibiting the information, and within the time limited by law, that i 
 sufficient to support the information." . ..." So with respect to the place, the evi- 
 dence is not tied up to the place laid, and may be of any place, provided it be not out of 
 the magistrate's jurisdiction." . ..." So with respect to quantities and numbers. 
 Certain quantities and numbers are always stated in the iuformation, but if a larger 
 quantity, or a greater number, is stated in the information than is proved by the wit- 
 nesses, still it will not vitiate the information." . . . . " But if the quantity and 
 number proved be more and greater than the quantity and number stated in the informa- 
 tion, the quantity and number stated in the information can only, on the hearing of 
 such information, be condemned. So when an information charges an offence to be 
 committed in various ways" . ..." if the offence is proved to have been done 
 by any one of these methods, it will be sufficient to maintain the information." 
 
 " Prior circumstances leading to the fraud, in respect of which a seizure has been 
 made, are admissible as circumstances to weigh with the jury, to prove that such fraud 
 was carried on." 
 
 In Excise and Customs cases, informers and officers are, under the Excise Statutes, 
 competent witnesses (7 and 8 Geo. IV, c. 53, § 75, and 3 and 4 AVill. IV, c, 53, g 118).
 
 18 RELEVANCY OF EVIDENCE. § H- 
 
 TITLE II. 
 
 OF THE RULE THAT EVIDENCE MUST BE RELEVANT. 
 
 CHAPTER I. — OF THE RULE GENERALLY. 
 
 § 17. The proper object in every trial being to lead the jury to 
 a correct verdict upon the issue, it is the practice to exclude evi- 
 dence which cannot afford an inference on some point in favour of 
 either party. This is done in order to prevent time being uselessly 
 consumed, and the attention of the jury being diverted from the 
 real question, and also to prevent evidence from being led which 
 the opposite party cannot have anticipated, so as to be prepared to 
 contradict it (a). It frequently happens, however, in the course of 
 a trial, that the relevancy of material facts is not at once apparent. 
 The Court has therefore to rely a good deal on the discretion and 
 fairness of the counsel conducting the case, and they will rarely re- 
 ject proof of facts, merely because at the time they appear to be ir- 
 relevant, if the counsel states on his professional responsibiUty that 
 they are material (b). There is much greater risk of injustice 
 from excluding than from admitting evidence objected to as irrele- 
 vant; and the Court can always caution the jury against being 
 misled by it, if it should turn out to be objectionable. The length 
 to which this ground for exclusion is carried will be seen from the 
 following illustrations. 
 
 § 18, In an action against the proprietor of a journal for libel, 
 it is incompetent to prove that similar libels were contained in 
 other journals, because they may all have been untrue (c). It is 
 
 (a) 1 Phil., 4G0 — Taylor, 233. In proofs by commission there is little or no risk of 
 misducision from this soixrce ; the chief objection is the waste of time. But in jury- 
 trials there is risk of misdecision also. Wherever facts have been found irrelevant, they 
 will not be allowed to be proved ; M'Laren v. Bulk, 1829, 7 S., 780. (6) This 
 
 is also the English practice ; 2 Starkie Ev., 313—1 Starkic Ev., 603— Haigh v. Belcher, 
 1886, 7 C. and P., 389. A striking illustration of tlie leniency of the Court in this 
 respect is seen in Rush's case, which was conducted by the panel himself; Sep. Rep., 
 pp. 26, 32. (c) Alton v. M'Culloch, 1823, 3 Mur., 288— Leslie v. Blackwood, 
 
 1822, 3 Mur., 181.
 
 § IS. RELEVANCY OF EVIDENCE. 19 
 
 incompetent in an action of divorce for adultery to prove the al- 
 leged paramour's loose and unbecoming behaviour witli other per- 
 sons than the defender, or his suspension from tlie clerical office ((/). 
 But the pursuer in an action either of divorce or of damages for 
 adultery, may prove the general behaviour of the paramours towards 
 each other, and even facts not specially averred, which indicate un- 
 usual intimacy between them about the time libelled on (e)} Un- 
 der an issue of forgery of the signature of one of three alleged par- 
 ties to a bill, that party was allowed to prove that another of the 
 signatures was forged ; but correspondence between the agents of 
 the parties after the bill fell due was only allowed to be used for 
 proving an admission of genuineness in the signatures, not in order 
 to shew liability on another ground (/). It is also relevant in such 
 cases that the party's name had been forged to other bills in similar 
 circumstances ((/), and that the drawer or holder is a notorious 
 forger (h).^ In an action of damages for a nuisance to the pursuer's 
 
 (d) Kinfi; v. Kinp^, 1842, 4 D., S'JO. (e) King v. King, supra — Springthrope, 
 
 1830, 8 S., 751—1 Fraser, 604— But in Baillie v. Bryson, 1818, 1 Mur., 323, the Lord 
 Chief Commissioner would allow evidence only of general behaviour, not of particular 
 facts. (/) GoUatley v. Jones, 1851, 13 D., 961. (g) Troup v. Begg, 
 
 1838, 1 D., 356. (A) Milne v. Littlejohn, 1838, 1 D., 137. 
 
 1 In an English case, the pursuer of a divorce was allowed to give evidence of acts of 
 adultery between the alleged paramours, of later date than the last act charged in the 
 petition, for the purpose of shewing the character and quality of the previous familiarity ; 
 Boddy V. Boddy, 1860, 30 L. J., Mat. Cases, 23. In a divorce by a wife, evidence of 
 repute as to the paternity of the illegitimate children of the paramour was rejected ; 
 A V. B, 1858, 20 D., 407. In a divorce, the defender (the husband) tendered as a wit- 
 ness a medical gentleman, for the purpose of proving that he had inspected the alleged 
 paramour, and found her to be virffo intada. The Court rejected the evidence, because 
 such evidence should not be resorted to except of necessity, and because, if allowed at 
 all, the inspection should bo by a neutral person appointed by the Court, seeing that, 
 as the alleged paramour was not bound to submit to a second inspection, the pursuer 
 could not test the evidence offered ; Davidson v. Davidson, 1860, 22 D., 749. 
 
 2 In a reduction of a trust-deed and two codicils one question was, whether they 
 were not unauthcnticated, in respect of the grantor having signed after the witnesses. 
 The Lord Justice-Clerk (Inglis), in charging the jury, observed, that if the jury were 
 satisfied that the witnesses had signed one of the deeds before the grautcr had signed it, 
 that was a material circumstance to be taken into account, in considering whether tlie 
 other deeds had been attested by the witnesses in tho same way ; because, as it was of 
 course tho testator's purpose to have his deeds well authenticated, the fact that the 
 witnesses had signed one of them, without seeing him sign or hearing him acknowledge 
 his signature, indicated an erroneous notion on his part with regard to the testing of 
 deeds ; and if he thought the one deed so attested well authenticated, it was not difficult 
 to suppose that he might have got the others attested in the same manner ; Morrison r, 
 Maclean's Trustees. 1862, 24 D., 625, 630. 
 
 b2
 
 20 RELEVANCY OF P:VIDENCE. §18- 
 
 property from the defender's works, one of the defender's witnesses 
 having deponed, on cross-examination, that he knew Glasgowfield, 
 a property adjoining the works, but that he never heard of any 
 damage being done there, the pursuer was not allowed to ask him, 
 whether he knew of any sum having been paid by the defenders to 
 the proprietor of Glasgowfield for alleged damage (/)■ In an action 
 against a mercantile company for executing orders wdiich they 
 knew were intended for the pursuers, it was held incompetent to 
 prove that they did so on an occasion ten years before (k). Proof 
 of a similar act within a. recent period would probably have been re- 
 ceived. In an action for recovery of property alleged to have been 
 fraudulently acquired the defender is not obliged to undergo a 
 judicial examination as to how he made his own fortune (I). Where 
 the defence to an action on a policy of insurance was, that the ship's 
 crew were drunk and inattentive, and the compasses unfit, the pur- 
 suer was not allowed to prove that other sailing masters were afraid 
 of their vessels on account of hazy weather at the time of the 
 wTeck (to). AVhere a party pleaded probable cause in defence to an 
 action for having in the year 1820 stated to officers of police that 
 the pursuer had committed a forgery, he was not allowed to prove 
 that information had been given to the public prosecutor in 1817 as 
 to the offence ; the proof being irrelevant owing to the length of 
 time intervening, although it would have been relevant if near the 
 period in issue (n). And on the same ground a letter of a recent 
 date is, while one of an old date is not, relevant evidence of provo- 
 cation in an action of damages for insult or defamation (o).^ 
 
 § 19. It was once held incompetent in a question of paternity 
 to prove a likeness between the alleged father and child, because it 
 was " too much a matter of fancy and loose opinion" to aid in de- 
 
 (i) Tennant and Co. v. Hamilton, 1839, M'L. and Rob., 821, reversing 1 D., 502. 
 
 (k) Dickson & Sons v. Dickson & Co., 1830, 5 Mur., 223— See also Dicksons 
 Brothers v. Dickson & Co., 1816, 1 Mur., 55. (1) Gordon v. Campbell, 22d Dec. 
 
 1809, F.C.— M'Candlish v. Forbes, 1825, 4 S., 58. (m) M'Loskey v. Glasgow and 
 
 Clyde Co., 1843, 6 D., 2. (n) Gibsons v. Marr, 1823, 3 Mur.. 268. (o) 
 
 Hyslop V. Staig, 1816, 1 Mur., 21— see also Bannerman ?;. Fenwicks, 1817, 1 Mur., 252. 
 
 3 In a reduction of deeds granted by the pursuer, the pursuer took two issues— 
 (1) of insanity, (2) of facility and lesion. The defender was not allowed to take an 
 issue of homologation in answer to the issue of insanity, but he was allowed, in opposi- 
 tion to the pursuer's second issue, to take an issue whether, when the pursuer was 
 not labouring under weakness of mind and facility, he homologated the deeds. The 
 Lord Justice-Clerk (Hope) dissented, and thought that the defender should raise a de- 
 clarator to establish his plea of homologation ; Gall u. Bird, 1855, 17 D., 1027.
 
 § l9. RELEVANCY OF EVIDENCE. 21 
 
 cidiiig the case correctly (p). liut in tlio Douglas cause (q) this 
 evidence was not only admitted without objection, but was dwelt 
 upon by Lord Mansfield ; who observed, " I liavc always considered 
 likeness as an argument of a child being the son of a parent ;" 
 while Lord Chancellor Camden said of the claimant, that his com- 
 plexion and the colour of his eyes and hair proved that he was not 
 the child of the person from whom it was contended he had been 
 bought. The prosecutor in a trial before the Justiciary Court for 
 child-murder, after proving that the child had six toes, was allowed 
 to ask a witness whether any members of the panel's family had 
 supernumerary fingers and toes {r), the fact being palpable, al- 
 though the inference to be deduced from it was only matter of 
 opinion. The Court of Session, however, held it incompetent in a 
 question of insanity to prove insanity of the party's relations («) ; 
 but on the case going to the House of Lords on another branch, 
 Lord Chancellor Eldon spoke of tliis as a " very delicate point" (f). 
 Several years after this case, the counsel for a panel, who pleaded 
 insanity in defence to a charge of murder, put a question to a wit- 
 ness in order to prove hereditary insanity, whereupon it was observed 
 from the bench that the House of Lords had held such evidence to 
 be incompetent (w). The Crown counsel, however, did not press his 
 objection ; and the question was put, but without eliciting any in- 
 formation. Where a panel pleaded insanity, evidence that his 
 maternal aunt had been insane was rejected (v)^ 
 
 (p) Rutlidge V. Carruthers, 20th Jan. 1810, F.C. (q) 1769, 2 Pat. App. Ca., 
 
 143, 177. In the TouTisend Peerage Case, in Jlay 1843, the House of Lords admitted 
 and used evidence of family likeness ; 79 Journ. House of Lords, IJOl. (r) Laird, 
 
 1848, Arid., 471. So a white man was held not to be the father of the mulatto child 
 of a white woman, although he admitted having had connection with the mother ; Sin- 
 clair V. M'Arthur, 12th Nov. 1812 (not rep.), noted in 2 Fraser, 8, and Hume Sess. Papers, 
 winter 1812-13, vol. i, No. 5. (6) Walker v. M'Adam, 1806, M. Proof App^ 
 
 No. 3. (t) M-Adam v. Walker, 1813, 1 Dow, 148, 177, 5 Paton Appeals, 675. 
 
 This evidence was received without question as to its competency in Smythe i-. Cham- 
 berlayne, 1792, reported in App. to the Gardner Peerage Case, p. 352. («) 
 
 M-Leod, 1838, 2 Swin., 88, per Lord Cockburn. His Lordship probably referred to the 
 case of Walker v. M'Adam above noted {i). (w) Gibson, 1844, 2 Broun. 332. 
 
 * Lord Deas, at Circuit, refused to receive, in supiwrt of a plea of insanity, evident* 
 that the paternal uncle of the panel had been insane ; Lord Advocate i: Brown, 1865, 
 2 Irvine. 154. 
 
 Evidence of hereditary insanity is not inadmissible in P^ngland ; Freore v Peaoocke. 
 1843, and Tyrell v. .Tenn(>r, 3 Curt.. 664, 669. 
 
 In an aotion of damages for wrongful confinement in a lunatic asylum, the defender 
 was allowed to recover and put in evidence private memoranda written by the pursuer
 
 22 RELEVANCY OF EVIDENCE. § 19- 
 
 In a question whether a party left his property past his relations, 
 proof is received of the terms on which he lived with them, as tend- 
 ing to shew the probahilities as to his conduct (x). 
 
 § 20. Sometimes the want of a connecting link will cause evi- 
 dence to be rejected which would otherwise have been received.^ 
 Thus it is incompetent in a question of the current price of goods 
 (pickled herrings) in the home market, to prove the prices in a 
 foreign market of similar goods, not proved to have been of the 
 same manufacture or lot (y). But the price of one set of goods 
 may be evidence as to the price of another set in the same market, 
 if proved to have been made at the same time, and by the same 
 manufacturer, or of the same lot of metal ; or in the case of wine, if 
 they have come from the same butt or cask (z). The current 
 prices of goods even of a different manufacture may be evidence in 
 a question whether those in issue, and for which a certain price was 
 agreed to be paid, were warranted as of the best quality (a). In 
 England in an action of trespass in one part of a continuous belt of 
 planting, the plantiflf may prove his acts of ownership in another 
 
 (z) As in Murray v. Tod, 1817, 1 Mur., 225— Buchanan v. Buchanan, 1810, Buch. 
 Eep., 89. This is the constant practice in such cases. (t/) Whealler v. Methuen, 
 
 1843, 5 D., 402, 1221— See also Wilson v. Gordon, 1828,6 S., 1012, where the Court, 
 in an action for payment of plaster-work executed in Glasgow, refused the defender a 
 commission to examine witnesses in London as to the charges there in support of his 
 defence that the work was overcharged. (z) Bailey v. Paterson, 1828, 4 Mur,, 
 
 480— Whealler v. Methuen, supra, per Lord Medwyn. If the pursuer proves that other 
 articles of the same kind manufactured by him were good, the defender may shew that 
 some were bad ; Bailey v. Paterson, supra. {a) "Whealler v. Methuen, supra, 
 
 5 D., 1221. 
 
 when in the asylum, because although {per Lord Deas) it was a valuable general principle 
 in criminal cases that documents which had not been delivered or published ought not to 
 be brought up against a party any more than his own private thoughts, yet in an 
 inquiry as to sanity, what was wanted, was to know the- man's private thoughts. 
 
 5 In an action of divorce by a wife, a letter written by the parish minister to his 
 assistant in reference to the baptism of a child, said to be the illegitimate child of the 
 defender, was held to be admissible in evidence, having been shown to the defender, 
 and commented on by him in a subsequent letter. On the other hand, a letter on the 
 same subject by the assistant to the minister, which had not been shown to tlie de- 
 fender, was held inadmissible ; A «. B, 1858, 20 D., 407. 
 
 A letter by a deceased solicitor, purporting to be written on tlie authority of A, and 
 coming from the custody of the person to whom it was addressed, was held not receiv- 
 able in evidence, as a letter written by authority of A ; Bright v. Legerton, 1861, 30 
 L. .1. Ch., 338. 
 
 A complaint in a Police CVnirt, libelling that the panel had received goods knowing 
 them to have been stolen, was quashed as irrelevant, because there was no averment 
 that the gnods had been stolen ; Donaldson v. Buchan, 1861, 4 Trvine, 100.
 
 § 20. RELEVANCY UK EVIDENCE. 23 
 
 part of it (b). In a question wlictlier packages of yarn were defi- 
 cient in quantity the pursuer was allowed to prove that some pack- 
 ages which had been furnished under the same contract, and which 
 he had rejected, were deficient (c). In an action of declarator by 
 a house-prcjprietor in a royal burgh, to establish a servitude of 
 drawing water, possession by the other inhabitants, as well as by 
 the pursuer and his authors, is relevant, all the inhabitants being 
 united under the corporation (d) ; and the same rule applies to a 
 burgh of barony (c). But the opposite has been held as to inhabit- 
 ants of a village who have no such common tie (/). So in a 
 question of jirescriptive right to a servitude of road, the proof was 
 limited to the possession of the proprietor of the dominant tene- 
 ment and his tenants, and was not allowed to embrace possession 
 by tenants upon other properties (j/). A right of public road, how- 
 ever, may be vindicated by any member of the community ; and 
 traflic along it by the public generally may be proved (h). In a 
 question as to the interpretation of a statute imposing an assess- 
 ment, the House of Lords held it not relevant to prove the practice 
 followed as to payment by other individuals assessed, the defender 
 not being a party to their acts (/). But it is otherwise when a 
 right to lev;y' dues is maintained on the ground of usage (Jc) ; and 
 where a general proof of usage is allowed in order to explain an 
 ambiguous clause in the statute imposing the duty (T). In the trial 
 of the Earl of Macclesfield for taking payment for ofiices in his 
 appointment as Lord Chancellor, he was allowed to prove that pay- 
 ments had been received on appointments by previous Chancellors, 
 in order to make good his defence tliat it w'as the ancient practice 
 
 (6) Stanley v. AVbite, 1811, U East., 332— See also a similar case as to trespass in 
 the bed of a river ; Jones v. Williams, 1837, 2 M. and W., 3liG. (c) Gibb v. 
 
 Wathen & Co., 1829, 5 Mur., 03. {d) Tliorburn v. Charteris, 1841, 4 D., 169. 
 
 This holds as to other servitudes also; Sinclair v. Town of Dysart, 1780 (House of 
 Lords), M., 14,619. (e) D. Hamilton v. Aikman, 1832, H. of Lords, 6 W. S., 
 
 77, per "Wynford— Home v. Gray, 1846, 9 D., 286 ; 19 S. Jur., 109, and authorities 
 cited there — But see Feuars of Dunse v. Hay, 1782, M.. 1824. (/) Feuars of 
 
 Dunse v. Hay, s^tpra — M'Kcnzie v. Learniouth, 1849, 12 D., 132. (ff) E. Morton 
 
 V. Stewart, 1813, 1 Dow, 91— But see M'Ghic v. M'Kirdy, 1850, 12 D., 442; and 
 Rodgers r. Harvie, 1829, 7 S., 287. (A) The Glentilt ca.-^e, 1850, 12 D., 328 ; 
 
 affd. 1852, 1 Macj., 05— Mercer t-. Reid, 1840, 2 D., 520— IMercer v. Rutherford, 1840, 
 2 D., 616. (0 Ewiiig ,-. Burns, 1839, ML. and Rob.. 435. 456. (/t) Town 
 
 of Lauder v. Brown, 1754, 5 Sup., 819, and M., 1987— Hill v. Mag. of Edinburgh, 1830, 
 8 S., 449— Cowan v. Mag. of Edinburgh, 1828, ♦> S., 58fj— Demister v. Dundee Sea 
 Box, 1831, 9 S., 313. (l) Girdwood v. Campbell, 1829, 7 S., 840, and 1830, 9 S., 
 
 170 — E. of Aboyne i-. Town of Edinburgh, 1776, M., 1972 — See a similar principle re- 
 cognised in Mag. of Dunbar r. II. r. of Dunbar, l>-'-)i>, 1 Sh. and M'L.. 195-202.
 
 24 ' RELEVANCY OF EVIDENCE. § 20- 
 
 and a perquisite of the office to do so (m) ; Lut the proof was 
 hmited to the same appointments as those hiid in the impeach- 
 ment (??). 
 
 In a trial for poisoning a child with king's yellow, the panel's 
 counsel asked a witness whether he knew of any instances in 
 Apothecaries' Hall " of mistakes in retailing medicines of as dan- 
 gerous a nature, as if king's yellow had been sold for sulphur ;" but 
 the question was not allowed, as no foundation had been laid for it 
 by proving that the king's yellow administered had been bought 
 there, or that king''s yellow had ever been sold for sulphur (o). 
 
 § 21. In some of the cases noticed in the preceding paragraphs 
 the evidence w\as rejected on the principle that res inter alios actae 
 aliis neque nocent neque prosunt, and that any inquiry into them is 
 therefore irrelevant {p). 
 
 The same principle is followed in England {q).^ 
 
 {m) Trial of E. Macclesfield, 1725, 16 How, St. Tr., 1180. [n) Ibid., 1142. 
 
 (o) Rennie, 1822, Sh. Cr., 82. (i?) So in an action for demurrage it is incom- 
 
 petent to prove that demurrage was claimed by owners of another vessel under similar 
 circumstances ; Wight v. Liddell, 1829, 5 Mur., 39— But see a narrow and doubtful 
 case, Gye and Co. v. Hallam. 1832, 10 S., 512. (?) 2 Starkie Ev., 313—1 Phil., 
 
 462 Taylor, 234. Thus the custoTu in one parish or manor is not evidence of the cus- 
 tom in another, unless they arc held by the same tenure, or the custom is general : M. 
 Anglesea v. L. Hatherton, 1842, 10 M. and W., 235— Doe v. Sisson, 1810, 12 East., 62 
 — Furneaux v. Hutchins, 1778, 2 Oowp., 808. The principle stated in the test is also 
 illustrated by Barden v. de Keverberg, 1836, 2 M. and W., 61— Smith v. Wilkins, 1833, 
 6 C. and P., 180— Delamote v. Lane, 1840, 9 0. and P., 261. Mr Taylor (p. 234) well 
 states the ground for the rule to be, that " the conduct of one man under certain circum- 
 stances or towards certain individuals, varying, as it will necessarily do, according to the 
 motives which influence him, the qualities he possesses, and his knowledge of the 
 character of the persons with whom he is dealing, can never afford a safe criterion by 
 which to judge of the behaviour of another man similarly situated, or of the same man 
 towards other persons." 
 
 6 When an action is based on a general fact, as negligence, concealment, insanity, 
 or the like, the point sometimes arises, whether the evidence of men of skill or men of 
 business should be brought, to show that the general fact which it is desired to prove is 
 a fair deduction from the evidence, or whether it should be left to the jury to draw that 
 conclusion for themselves. Thus in a trial of an issue whether an insurance of a vessel 
 had been obtained by concealment of circumstances material to the risk, questions to an 
 insurance agent, adduced as a witness, (1) whether, if he had known an alleged fact, 
 he would have disclosed it, and (2) whether certain circumstances were material to the 
 risk, were disallowed, as inquiries as to the witness's individual opinion merely. But 
 the Court treated as an undecided point, on which they abstained from giving an opinion, 
 whether it would have been competent to ask what, in the judgment of the witness, 
 would be the opinion of underwriters generally as to the materiality of the facts, — or 
 whether it ought to be left to the jury to determine for themselves as to the materiality 
 of tlie facts concealed ; Baker & Adams v. Scottish Sea Insurance Co., 1856, 18 D., 691. 
 So in the case of Morrison, 1862, 24 D., 631, medical men, a? witnesses, were asked
 
 § '^3. RELEVANCY OF EVIDENCE. 25 
 
 CHAPTER II.— RELEVANCY OF EVIDENCE OF CHARACTER. 
 
 § 22. As evidence of the good or bad character of the parties 
 usually affords little or no aid towards a correct verdict, the general 
 rule is against its admissibility (r). On the other hand, this evi- 
 dence is often important in actions which involve character and 
 conduct ; and in such cases it is generally admitted, under certain 
 rules designed for preventing surprise. 
 
 First, As to the character of the pursuer and those associated 
 with him in the cause : — 
 
 § 23. In actions of damages for defamation, where the defender 
 takes an issue of verilas convicii, or impugns the pursuer's charac- 
 ter on record, the pursuer may support his character in denial of 
 the injurious allegations, and in anticipation of the defender at- 
 tempting to prove them (s). Even where the defender has not 
 taken the initiative, the evidence seems competent for the j)ursuer 
 in this class of actions ; because his character, the subject of the 
 alleged damage, is in issue {t). Such evidence is of course admis- 
 sible where the defender has in his proof attacked the pursuer's cha- 
 racter (w). 
 
 Evidence in support of the injured partj^'s character in actions 
 of damages for seduction is relevant in England, both on the ques- 
 tion whether the defender seduced her, and on the amount of 
 damage occasioned by his act {x)} Wliotlier her character can be 
 
 (r) 1 Phil., 466, 7—1 Taylor, 253—1 Greenl.. 72. (s) Aiton i-. M'CiiUoch, 
 
 1823, 3 Mur., 284— Denham v. Ogilvie, 1827, 4 IVIur., 196—2 Starlde Ev., 305— Taylor. 
 ^54. (0 Tytler v. Macintosh, 1823, 3 Jhir., 239-WaIkLn- v. Robertson, 1821. 
 
 2 Mur., 511— Macf. Pr., 216. Tliis has been repeatedly allowed without objection, :w 
 ill Cullen v. Ewing, 1832, 10 S., 497— Rauisay v. Nairne, 1833, 11 S., 1033— Brodie v. 
 Blair, 1834, 12 S., 944— M'Neil v. Rorison, 1847, 10 D., 15. The English practice rejects 
 this evidence unless the pursuer's character has been attacked on record or in evidence ; 
 2 Starkie Ev., 350—1 Phil., 467— Taylor, 253. (m) 1 Phil., 468—2 Starkie Ev.. 
 
 306. (x) BaniHeld v. Massey, 1808, 1 Camp.. 460— Bate v. Hill, 1823, 1 Car. 
 
 and Pa., 100— Brown v. Goodwin (Irish Circ), cited in Taylor, 259—2 Starkie Ev., 
 806. These authorities shew that the English Courts do not follow Dod.l r. Morris, 
 1814, 3 Cani[i. 519 ; where, in an action of damages by a father for seduction of hi.s 
 daughter, it was held that her cross-examination on her indelicate conduct to the de- 
 fender wf)uld not let in the pursuer's proof of her good character by witnesses genorallv, 
 but only by re-examining her. 
 
 whether, on a consideration of the evidence, thoy believed a testator to be insane ; buf 
 the Lord Justice-Clerk (Inglis) told the jury, that that was not a question for the medi- 
 cal witnesses, but that it was for the jury to determine, on a consideration of the facts 
 proved, as to the sanity of the t.'sfator. 
 
 1 Such evidence seems admissible in Scotland also; Walker r. M'I.<aac, 1857. 19 P.. MCi.
 
 26 RELEVANCY OF EVIDENCE OF CHARACTER. § 23- 
 
 set up, if the defender lias not attacked it on record or in evidence, 
 has not been determined. 
 
 In charges of rape and assault with intent to ra\asli, the prose- 
 cutor may anticipate the common defence, that the connection was 
 voluntary, by proving the woman's good character, although the 
 defender has not impugned it on record {y). But he may not do so 
 at the commencement of the trial {z). 
 
 Wherever the pursuer has been allowed to support his charac- 
 ter, it would seem that the defender may impugn it by counter evi- 
 dence («). 
 
 § 24. The principle that the pursuer's character is in issue in 
 actions of damages for defamation allows the defender to lead evi- 
 dence against it, where he has attacked it on record, or taken an 
 issue of justification {b). The English authorities are not agTced 
 as to the competency of such evidence where the defender does not 
 justify (c). Here it has been admitted where there was no justifica- 
 tion {(1) ; and the decisions allowing the pursuer to anticipate the 
 defender's evidence in such cases proceed on the assumption of its 
 competency (e). In a recent case, however, Lord President Boyle 
 rejected general evidence against the pursuer's character in an 
 action of defamation, because the defender had not attacked it on 
 record or by an issue of justification (/). 
 
 § 25. Where the pursuer's bad character is a ground of defence, 
 as in actions of damages for breach of promise of marriage (^), and 
 actions laid on dismissal of servants, the defender may prove it ; but 
 he will have to take a counter-issue. The falsehood of the slander 
 is presumed in actions for defamation where the defender is not 
 [irivileged {h). But the Veritas convicii may be proved in defence, 
 provided it is put articulately in a counter-issue {%), but not 
 
 (y) M'William, 1846, Arkl., 209. The prisoner had stated in his declaration that 
 the connection was voluntary. {z) M'William, supra. [a) Walker v. 
 
 Robertson, 1821, 2 Mur., oil— Cleland v. Mack, 1829, 5 Mur., 72. {h) Hyslop 
 
 V. Staig, 181 G, 1 Mur., 21— Macf. I'r., 216. (c) Starkie, vol. ii, pp. 305, 641, 
 
 and Taylor, 2.58 (3d edition, 332), are in favour of the admissibility ; Philips, vol. i. 
 p. 467 (10th edition, 502), takes the opposite view. The cases are fully noted in all 
 these works. {d) Hyslop v. Miller, 1816, 1 Mur., 49— Denham v. Ogilvie, 1827, 
 
 4 Mur., 196 — Macf. Pr., 216 — See also Lord President Hope's charge in Brodie v. Blair, 
 1836, 14 S., 267, 269. (e) Supra, note {t). (/) Bryson v. Inglis, 1844, 
 
 6 D., 363. This case was compromised before discussing the exception to his Lordship's 
 ruling. (^f) Foulkes v. Sellway, 1801, 3 Esp., 23G. {h) In cases of privi- 
 
 lege the purpuer has to prove that the slander is false ; M'Intosh v. Flowerdew, 1851, 13 
 D., 726. (i) Scott V. M'Gavin, 1821, 2 Mur., 486— Walker v. Robertson, 1821, 
 
 ibid., 512— PRtcnson r. Sbaw. 1830, 5 Mur., 281— Brndie i'. Blair, 1836, 14 S., 267. 
 
 1
 
 § 25. RELEVANCY OF EVIDENCE OF CHARACTER. 27 
 
 otherwise {j).'^ Nor can it be proved without a counter- issue, 
 where the deleiiJer tenders it in mitigation of damages, and not in 
 justification ; for tlie pursuer has a substantial interest to prevent 
 the damages from being reduced to a nominal sum by means of 
 l)roof of which ho has not had notice (A*).^ In actions of this na- 
 ture, however, the defender, Avithout taking a counter-issue, may 
 prove in mitigation of damages that the slander was not raised by 
 him, but was communicated to him l)y anotlier person (J), or was 
 currently reported at the time (in). As such evidence is admitted 
 in order to negative the expressed or implied allegation that the 
 defender is a malicious calumniator, and not to shew that the slan- 
 derous statements are true, the defender will be prevented from 
 founding on tlie proof for the latter purpose, if there is not a counter- 
 issue (w). Where a party wrote a letter to another, charging him 
 with having committed a capital crime (meaning rape), and where 
 in defence to an action of damages for the slander he founded on 
 conduct of the pursuer as having given rise to the charge, and in a 
 gTcat measure palliating it, but without amounting to a complete 
 justification, the Court allowed him to prove the conduct in mitiga- 
 
 (y ) Cases in preceding note — M'Neill v. Rorison, 1847, 10 D., 15 — Scott v. Dolierty, 
 1843, 6 D., 5. In Paterson v. Shaw, supra, a mistake in the locus in the counter-issue 
 prevented the tnith of the slander from being proved. {k) M'Neill v. Rorison, su- 
 
 pra.^ [I) Aitken v. Reid, 1819, 2 Mur., 149— Forteith v. E. Fife, 1821, 2 Mur., 
 
 467— Paterson v. Sliaw, 1830, 5 Mur., 279— See also Durham v. Mair, 1796, Hume, D.. 
 599— Rose i;. Robcrtsou, 1803, ib., 614— Gardner v. Marshall, 1803, ib., 620— M-Kennal 
 V. Wilson, ib., 628. (w) Scott v. M'Gavin, 1821, 2 Mur., 486, per Lord Chief 
 
 Commissioner — Kinpan i-. Watson, 1828, 4 Mur., 490, per eundem — M'Culloch v. Litt, 
 1851, 13 D., 960, per Lord Wood— See also Dougal v. Dougal, 1833, 11 S., 1026. 
 
 (n) Aitken v. Reid, s?/;>m— Brodie v. Blair, 1836, 12 S., 941 ; 14 S., 267, S. C— 
 M'Culloch V. Litt, supra. Besides, common report is hearsay of the Veritas ; see § 87. 
 
 2 Friend v. Skelton, 1855, 17 D., 548. — Veritas convicii (the allegation by the de- 
 fender of time, place, and circumstances being suflRcicntly precise) is a complete defence 
 in all actions of damages for slander ; Jlackellar v- Duke of Sutherland, 1859, 21 D., 222. 
 See the previous cases reviewed by the Lord Justice-Clerk (Inglis) ; Wilson v. Weir & 
 Strang, 1861, 24 D., 67. — Per contra, " Truth is not always a justification of libel. It 
 may be an aggravation, as where the allusion is to a bodily defect, or to a family mis- 
 fortune, for which the party taunted was not to blame, and which ho could not help ; or 
 it may be, at best, only a ground of mitigation, as where an individual in everj- com- 
 pany, and on every occasion, publicly taunts another in whose conduct he has no per- 
 sonal interest, with some old and generally forgotten immoral act or act of impropriety "; 
 liOrd Deas, Ordinary, in Friend v. Skclttui, supra {V'wA Division). 
 
 A defender of an action for defamation, wlio takes an i>suo in justification, reipiirts 
 to prove up to the innuendo ; Harkes v. Mowat, IStVJ, 24 P., 701. 
 
 3 Blaikie v. Duncan, isn?, 19 D., 984. lOO.'S.
 
 28 RELEVANCY OF EVIDENCE OF CHARACTER. § 25- 
 
 tion of damages, although he had not taken an issue of justifica- 
 tion (o). The evidence was not admitted to prove the Veritas con- 
 vicii, but to shew the circumstances which provoked the slander, 
 and which were therefore part of the res gestae (p). 
 
 § 26. In other actions besides those laid on defamation, evidence 
 against the character of the subject of the suit is admitted, where 
 it throws light on the question in issue and on the amount of 
 damages : and the same principle admits evidence of the bad char- 
 acter of the injured party in certain criminal cases. On this ground 
 in actions of damages in England for seduction of the pursuer's 
 daughter, and for criminal conversation with the pursuer's wife, 
 their wanton or immodest character, and even particular instances 
 of connection, may be proved (q), unless they occurred after those 
 with the defender (r). In such cases (none of which are reported 
 on these points in Scotland), the evidence is admissible, although 
 the pursuer has not attempted to set up the character in question (s). 
 In an action of assythment, the defender was allowed to prove his 
 defence that the deceased had been subject to bad habits, and that, 
 at the instigation of his family (some of whom were pursuers), he 
 had lived separate from them, that he had not supported them, and 
 had bestowed his savings on a woman with whom he carried on an 
 adulterous intercourse ; these facts being relevant on the question 
 of damage (t).^ 
 
 I 27. In an action of damages for adultery with the pursuer's 
 
 (o) Ogilvy V. Scott, 1836, 14 S., 729, 1080 ; see this case noticed by the Lord Jus- 
 tice-Clerk (Hope) in M'Neill v. Rorison, 1847, 10 D., 33. (p) On this point see also 
 White V. Cleugh, 1847, 10 D., 334— Holehouse v. Walker, 1853, 15 D., 665— Muller v. 
 Robertson, 1853, 15 D., 661. * (q) Coote v. Berty, 1698, 12 Mod., 232— Roberts 
 V. Malston, Sel., N. P., 24— Elsam v. Faucett, 1799, 2 Esp., 562— Bamfield v. Massey, 
 1808, 1 Camp., 460— Bate v. Hill, 1823, 1 C. and P., 100— Carpenter v. Wahl, 1840, 3 
 Per. and Dav., 457—2 Starkie Ev., 305—1 Phil., 467— Taylor, 255—1 Greenleaf, 72— 
 See also an unreported Scotch case noted in 1 Fraser, 676. (r) Elsam v. Faucett, 
 supra, Sel., N. P., 25. (.s) Authorities in note (g). (l) Brash v. Steele, 
 1845, 7 D., 639. 
 
 * In an action for reparation for bodily injuries which, the pursuer alleged, had in- 
 capacitated him for business, the defenders, without having impugned the pursuer's 
 character on record, put questions to him and to some of his witnesses with a view to 
 Tirove that he was of intemperate habits. The Lord .Justice-Clerk (Inglis) held the line 
 of examination to be competent. Lord Cowan doubted the propriety of allowing such 
 evidence when there were no averments as to character on record. The line of defence 
 was not followed oixt, and consequently the pursuer examined no witnesses on the sub- 
 ject. But he was allowed the expense of witnesses brought to speak to the point, had 
 it been necessary ; Butchart v. Dundee and Arbroath Railway Co., 1859, 22 D., 184.
 
 § 28. RELEVANCY OF EVIDENCE OF CHARACTEU. 29 
 
 wife, evidence of liis loose conduct and character, during the mar- 
 riage was admitted, as bearing on the damage which he had sus- 
 tained from tlie acts comphiined of ; hut liis general loose character, 
 and his having been divorced from a furmcr \\\l'v, were not allowed 
 to be proved («). Wliere in an action of damages })y a schoolmaster 
 for being turned out of his school, the defence was that he deserved 
 dismissal, tlie defender was allowed to prove how tlie pursuer 
 taught the scliool ; but the Lord Chief Commissioner was inclined 
 to prevent a general proof of his character (x). 
 
 § 28. In an action of damages against officers of police for 
 wrongous ai)prehcnsion of the pursuer as a resetter, and improper 
 treatment of her wliile in custod}', where the defenders pleaded 
 that they acted in discharge of their duty in consequence of the 
 suspicious circumstances against her, and denied having treated her 
 improperly, they were allowed to prove several previous complaints 
 against her, with the procedure thereon, and a conviction in the 
 police court, as these facts might have justly influenced them in 
 detaining her in custody (y). In another action of a similar kind, 
 where the defence was that the pursuer had been " furiously intoxi- 
 cated," and had committed a breach of the peace, and where there 
 was an issue whether the defender acted in the lawful execution of 
 his duty, he was allowed to prove the pursuer's general behaviour 
 in his family, and that he was a violent man, but not particular acts 
 of violence {z). Thus also the defender in an action of damages for 
 assault may prove that the pursuer is of a quarrelsome or fierce dis- 
 position, if that is averred on record as justifying or palliating the 
 attack (a). As, however, the pursuer's character is not iTsually in 
 issue in the cases in this section, the defender's record must give 
 some notice of the Line of proof, although it does not seem neces- 
 sary that it should impugn the pursuer's general character for ho- 
 nesty or peacefulness as the case may be (b). 
 
 Thus also in trials for murder and stabbing, the prisoner may 
 prove the general quarrelsome and violent temper of the person 
 attacked (c), but not particular acts of violence on the prisoner at 
 
 (w) Baillie v. Bryaon, 1818, 1 Mur., 330— See also Brodie v. Blair, 1834, 12 S., 941 
 — 1 Fraser, 676. (z) Miles v. Fiiilay.son, 1829, 5 Mur., 86. (y) Nimmo 
 
 V. Stewart, 1832, 10 S., 844. The extract conviction was received, althoufrh it did not 
 bear that the witnesses had been sworn. (2) Jameson i". Main, 1830, 5 Mur., 
 
 120, 1. (a) Walker ». Ritchie, 1836, 14 S., 1128— Lang v. Lillie, 1826, 4 Mur., 
 
 85— Bannerman v. Fenwicks, 1817, 1 Mur., 252 — (See this case noticed by Lord Pit- 
 milly in Lang v. Little). (6) Compare cases in the three preceding notes with 
 
 Hall w.Otto, 1818, 1 Mur., 444, and Macfarlane v. Young, 1824, 3 Mur., 412. 
 
 (,c) Shield, 1846, Arkley, 171— Irving, 1838, 2 Sw., 109.
 
 30 RELEVANCY OF EVIDENCE OF CHARACTER. § 28- 
 
 a considerable interval (two months) before (cZ), or attacks upon 
 third persons {e). Even general character for violence can only be 
 proved when there is a special defence (/). 
 
 § 29. The accused in a charge of rape, or assault with intent to 
 ravish, may prove the woman's unchaste character, and even par- 
 ticular acts of criminality, both as circumstantial evidence to nega- 
 tive the charge, and as an alleviation of the crime (</). But the 
 prosecutor must have notice of this line of evidence (h), unless he 
 has attempted to set up the woman's character (/). There is some 
 doubt whether the proof is limited to her conduct before the act 
 libelled (k). It is true that the loss of virginity is apt to make a 
 woman reckless of her virtue ; but this seems rather to affect the 
 weight of the subsequent evidence, than to be a ground for rejecting 
 it ; as proof of gross indecency might satisfy the jury that the wo- 
 man is really of a lewd disposition, and might therefore negative 
 the charge. It seems competent to prove that before the act li- 
 belled she had connection with other persons besides the prisoner (Z), 
 and that she was in the habit of associating with prostitutes (m). 
 But an inquiry into the character for modesty of any individual of 
 her companions will be excluded, unless perhaps in regard to one 
 who is distinctly alleged to be a common prostitute {n).^ 
 
 (d) Shiels, supra. (e) Irving, supra. (/) Brown, 1836, 1 Sw., 293. 
 
 (g) 1 Hume, 304—1 Al., 215—2 Al., 531— Allan, 1842, 1 Broun, 500— Blair, 1844, 
 2 Broun, 1G7— Tweedie, 1886, Bell's Notes, 84, 1 Sw., 22— Leitch, 1838, 2 Sw., 112. 
 
 (A) Hume, ib.— 1 AL, 216—2 Al., 531— M'MiUan, 1846, Arkley 209— Wight, 1836, 
 1 Sw., 49— Blair, supra. (i) Wilson, 1813, Hume, ib.— Al., ib. 
 
 (k) Leitch, 1838, 2 Sw., 112, Bell's Notes, 84. In Wilson's case (supra), evidence 
 of the woman's subsequent conduct was received ; but Baron Hume disapproves of the 
 decision ; 1 Hume. 304. It is incompetent in England ; 1 Phil., 468—2 Starkie, 305. 
 
 (/) Blair, 1844, 2 Broun, 167— Stephens, 1839, 2 Sw., 348— Smith, 1805, Burnett, 
 4G2— 2 Al., 581— contra, Allan, 1842, 1 Broun, 500. In one case where the prisoner 
 put in a special defence, alleging that the woman was at the time, and continued to be, 
 an immodest woman, and on the evening after the alleged injury had been found in bed 
 with another man, Lord Medwyn allowed the latter fact to be proved, but only as bear- 
 ing on the quality of the assault and extent of injury, and refused to allow proof of 
 subsequent immorality ; Leitch, supra. Only criminal acts with the prisoner are re- 
 ceived in England ; Hodgson's case, 1812, R. and R., 211—1 Phil., 468—2 Starkie, 
 305.5 (m) Webster, 1847, Arkley, 269. (w) Webster, supra. 
 
 5 Taylor in his 3d Edition, vol. i, p. 332, note 3, says that Hodgson's case has been 
 over-ruled. Best says that the question is open in England ; Best on Evidence, § 260. 
 
 6 In a trial for rape, although the immoral character of the principal witness may 
 be proved without a special defence, due notice should be given to the prosecutor of the 
 panel's intention to impeach her character. 
 
 In a recent trial for rape, the Court rejected evidence of the unchastity of the woman.
 
 § 30. KELF.VANCY OF FA'IDENCK OK CllAliAGTKlt. 31 
 
 Secondly, As to the character ut" thu dofeiidur : — 
 § 30. In criminal prosecutions it is tlie constant practice to ad- 
 rait proof of the panel's good character, both as circumstantial evi- 
 dence in his favour, and in mitigation of puiiishment. But the 
 prosecutor is never permitted to attack the prisoner's character, 
 unless the latter has set it up ; and even then he very seldom goes 
 beyond cross-examining the prisoner's witnesses on the point. The 
 prosecutor, however, may prove that the panel has been previously 
 convicted of the crime libelled, and in charges of theft that he is 
 habit and repute a thief, provided the libel gives notice of these 
 specific aggravations.'^ In principle, the admission of such evidence 
 is not an exception to the general rule ; and the Court frequently 
 directs the jury to disregard it in determining upon the main 
 charge. But in i)ractice juries attach considerable weight to this 
 kind of evidence as bearing on the wliole case.^ Where theft, aggra- 
 
 some years before the date of the alleged crime, wheu there was no offer to prove con- 
 timied uncliastity up to the date of the crime. It was held tliat the rule, that, in rape, 
 the chastity of the woman mi^'lit be impeached, had this limitation, tliat the unchastity 
 to be proved must be at or immediately before the date of the offence ; if the panel 
 proved her uncliastity then, he could carry back his proof as far as he pleased. The 
 Court indicated an opinion against the competency of evidence of acts of unchastity with 
 other persons besides the prisoner, and the Lord Justice-Clerk (Inglis) said that his 
 opinion was in conformity with that expressed by Lord Moncreiff in the case of Allan, 
 referred to in note [1), which was against the competency of that kind of evidence ; 
 Lord Advocate v. Reid, 18G1, 4 Irvine, 124—34 Jur., 108. It is understood, however, 
 that such evidence is frequently led in practice ; it was led without objection in the 
 case of Francis Dignan, 1854, 1 Irvine, 357. When it is intended to lead such evidence 
 in defence, distinct notice of the names of parties, places, and dates, ouglit to be "-iven ; 
 Reid, ut supra — Lord Advocate v. Forbes, 1858, 3 Irvine, 186. 
 
 7 The aggravation of habit and repute a thief is not established by proof that the 
 panel had born that character for a year ; Adv. r. M'Pherson, 1862, 4 Irv. It is not 
 competent to prove that a panel is habit and repute a resetter. But it was held compe- 
 tent to inquire what was the character of the persons who frequented the panel's house ; 
 Burns v. Hart, 1856, 2 Irv., 571. 
 
 8 An exception to the ordinary practice has been introduced by the late Act consoli- 
 dating the Statute-Law against oflV-nces relating to tlio coin ; it is provided by that Act 
 (2 84) that in the trial of an indictment for committing an otlVnco after a previous con- 
 viction or convictions, the previous convictions sliall not be taken into consideration 
 until till- panel lias pleaded giiilty to the subsequent oflence, or been found guilty of it 
 by verdict of the jury, that the prisoner shall then be a^ked whether he has been 
 previously con\icted as alleged in the indictment, and if he does not admit the previous 
 conviction, the evidence of it shall then be laid before tlie jury ; provided that if a 
 panel, on his trial for a subsequent offence, offers evidence of his good character, the 
 prosecutor may reply, by evidence of the conviction of the panel for the previous of- 
 fence, and in that case the jury shall enquire concerning such previous conviction or 
 convictions at the same time that they enquire concerning such subsequent offence ; 
 24 and 25 Vict., c. 99, § 34.
 
 32 KELEVANCY OF EVIDENCE OF CHARACTER. § 30- 
 
 vated b}' the panel being habit and repute a thief, and robbery are 
 charged alternately, and the evidence in the opinion of the Court 
 applies to robbery, the aggravation (which is limited to the charge 
 of theft) may not be proved (p). The prisoner's evidence of cha- 
 racter has often special reference to the individual offence ; e.g., in 
 a charge of murder, his kindly behaviour towards the deceased, and 
 his loj'alty in a charge of treason or sedition. Sometimes even 
 blemishes in the panel's character may be relevant evidence in his 
 favour, as his cowardly or deceitful disposition in crimes shewing 
 great boldness and daring, — liis stupidity in crimes shewing in- 
 genuity, — or, as in the trial of Burke for murder, where the fact of 
 his having carried on a trade of body-lifting was dwelt upon by his 
 counsel. Dean of Faculty (late Lord) Moncreiff, as accounting for 
 his having dead bodies in his house under suspicious circumstances, 
 
 § 31. In civil cases the defender's character is held not to be in 
 issue : and therefore he may not prove that it is good, unless the 
 pursuer has attacked it (r). This rule has been applied in actions 
 of damages for defamation (s), and for illegal imprisonment (t). 
 Even in cases directly involving the defender's character, the proof 
 has been excluded, as in actions laid on fraud (u), and embezzle- 
 ment (x). But in these cases there seems to be no good reason for 
 depriving the defender of such circumstantial evidence : which 
 would have been admitted if the same charge had been made 
 against him in a criminal Court {y). 
 
 § 32. The defender's character may not be attacked by the pur- 
 suer, as by proving his dissipated habits in an action by a master 
 against his apprentice for deserting his service (z) ; or his quarrel- 
 some disposition in an action of damages for assault (a). 
 
 § 33. When evidence of character is competent, the general rule 
 
 (;;) M'Callum, 1836, 1 Sw., 64. (r) Macf. Pr., 218. In Hyslop v. Miller, 
 
 181 C, 1 Mur., 49, where the defender in an action of defamation pleaded compensatio in- 
 juriarum in con.sequence of the pursuer having called him a disgraced officer, he was 
 allowed ijroof of his good character in order to rebut that charge. (s) Scott v. 
 
 M'Gavin, 1821, 2 Mur., 493— Cooper v. Mackintosh, 1823, 3 Mur., 359— In Armstrong 
 V. Vair, 1823, 3 Mur., 317, where such evidence was led without objection, the Court 
 did not interfere, but remarked that the case would not be a precedent. {t) 
 
 Simpson v. LidcUe, 1821, 2 Mur., 580. (m) Clark v. Spence, 1825, 3 Mur., 474 
 
 —1 Phil., 467— Taylor, 253— Goodright, 1789, Bull., N. P.. 29G— Att.-Gen. w. Bowman, 
 1791, 2 B. and P., 532, note. (x) Kitchen v. Fisher, 1821, 2 Mur., 591. (y) 
 
 The decisions referred to are opposed in principle to those noticed above, § 23, (s), {x). 
 (z) Gunn v. Goodalls, 1835, 13 S., 1142. (a) Haddoway v. Goddart, 
 
 1816, 1 Mur., 151. Here the defender had tried to set up his character by cross- 
 examining the pursuer's witnesses.
 
 § 34. HELPWANCY OF KVIDENCE OE CHARACTER. 33 
 
 admits evidence only of general character, not of particular facts ; 
 because one will seldom be at a loss to meet a false attack upon his 
 general character, whereas he might he taken by surprise in having 
 to disproyo special cliargcs (h).^ 
 
 CHAPTER III. — RELEVANCY OF EVIDENCE IN QUESTIONS OF 
 KNOWLEDGE, INTENTION, AND MALICE. 
 
 § 34. The knowledge, intention, or malice of a person, can 
 often be gathered oidy from a number of circumstances not indi- 
 vidually important ; and therefore, when the issue involves such 
 facts, evidence is received which in other cases would be held irre- 
 levant (c). Thus in an issue whether the defender falsely stated to 
 certain officials that the pursuer had uttered a forged bank note, 
 knowing it to be forged, where the defender took an issue of pro- 
 bable cause, he was allowed in evidence of the pursuer's guilty 
 knowledge to prove that warning had been given him by the bank 
 with regard to other forged notes (cI). Certain instances of the 
 defender having slandered the pursuer being in issue, other in- 
 stances of similar slander not set forth may be proved, as indicating 
 the animus wdth which those in issue were uttered {e)} But this 
 
 {b) Biumennan v. Ffiiwicks, 1817, 1 Mur.. 252— Cleland v. Mack, 1829, 5 Mur., 72 
 — Denham v. Ogilvie, 1827, 4 Mur., 19G— Baillie v. Bryson, 1818, 1 Mur., 323— Sheils, 
 1846, Arkl., 171— Irving, 1838, 2 Swiii., 109—1 Greeul., 70— Taylor, 258—2 Starkie, 
 304, 305. But in an action of damages against a coach proprietor for an overturn, proof 
 that the driver was rash was rejected, while facts showing him to he rash were held 
 admissible ; Gunn r. Gardner, 1820, 2 Mur., 196. And in an action of damages against 
 a jailor for violence to the defender when in liis custody, the pursuer's quarrelsome dis- 
 position was not permitted to be proved, and the Lord Chief Commissioner (Adam") re- 
 marked, " to prove his disposition you must shew particular acts of violence," but on 
 this evidence being tendered, it was rejected on the ground of surprise and want of 
 notice; Maefarlano v. Young, 1824, 3 Mur., 412 — See also supra, § 27, (u), (x). 
 
 (c) Sec piT Lord Jeffrey in Hastie v. Warden, 1848, 11 D., 240. (rf) Gibsons v. 
 
 Marr. 1823. 3 Mur., 250. {e) Forbes v. Kirk, 1841, 4 D., 1177. 
 
 9 In an action of damages against a railway company for injuries sustained in an 
 exclusion train, the degree of culpa is proper for the consideration of the jury in assess- 
 ing damages; Dobie v. Aberdeen Railway Co., 1856, 18 D., 862. 
 
 1 In Friend v. Skelton, 1855, 17 D., 548, Lord Deas observed (558)—" I wish to 
 make it quite clear that I give no opinion on the question — nor do I understand your 
 Lordship in the chair to have done so — whether, when it is set forth generally that the 
 slander uttered on an occasion specially libelled had been repeated at another time, and 
 
 C
 
 34 RELEVANCY OF EVIDPZNOE IN § 34- 
 
 Avas not allowed as to expressions which had been the subject of a 
 separate issue that had been abandoned on account of error in the 
 locus (/). And where there were special issues of separate slanders 
 in presence of certain individuals, proof of similar slanders to other 
 persons was rejected {g), the Court remarking that the proof would 
 have been allowed if there had been a general issue (7i).^ In an 
 action of damages on account of the defender having fraudulently 
 executed a mercantile order, in the knowledge that it had been in- 
 tended for the pursuer, the Court rejected evidence that the de- 
 fender had several years before executed similar orders improperly, 
 the object in tendering the proof being to shew that he knew that 
 the order in issue was meant for the pursuer (^). But this decision 
 may be questioned. In an issue whether A knew that a certain 
 assignation had been granted, proof of the knowledge of his agent 
 B is relevant, although not conclusive (k.).^ 
 
 § 35. The same principle applies in criminal cases. Thus in a 
 trial for reset, it is a relevant circumstance that the panel had been 
 previously indicted for resetting goods from the same thieves from 
 whom he was charged with receiving those libelled on (l).^ In pro- 
 
 (/) Forbes v. Kirk, 1841, 4 D., 1177. {(/) Cullen v. Ewing, 1832, 10 S., 497, 
 
 743_Oraig v. Marjoribanks, 1828, 3 Mur., 344. (A) In CuUen v. Ewing, ibid. 
 
 (0 Dickson v. Dickson and Co., 1830, 5 Mur., 223, and 8 S., 933. See this case 
 noticed supra, § 18. {k) Balfour v. Lyle, 1832, 10 S., 853 ; 11 S., 906. 
 
 (l) William Campbell, Aberdeen Autumn Circuit, 1847, per Lord Mackenzie, not 
 reported. See also 1 Hume, 114, 115. 
 
 on other occasions, such repetition of the slander may or may not be competently proved 
 as indicating the animus. When such a question arises, it will be jiroper to attend to 
 the case of Forbes v. Kirk, and to some other cases which have occurred in practice, 
 although perhaps not reported." 
 
 2 Where in reference to two alleged acts of slander the defender established the 
 Veritas, proof of them was held not to aid the proof of a third act of slander, which being 
 deponed to by one witness only, was held not sufficiently established. The proof in the 
 case had been taken in the Sheriff Court ; Wilson v. Weir and Strang, 1861, 24 D., 67. 
 
 3 Evidence of the malice of an agent will not prove the malice of his client, unless 
 it be shewn that the agent, in acting maliciously, was carrying out the wishes or repre- 
 senting the feelings of his client ; Mackellar v. Duke of Sutherland, 1862, 24 D., 1124. 
 
 Evidence of a general belief in the neighbourhood where a person resided, that he 
 was insane, held inadmissible to prove that a party who transacted witli him knew of 
 the insanity ; Greenslade v. Dane, 1855, 20 Beavan, 284. 
 
 * But see Burns v. Hart, supra, § 30, note 7. Baron Hume (vol. i, p. 114), referred 
 to in note {I), says, in reference to the circumstances proving guilty knowledge by a re- 
 setter—" Of aU these it is a powerful confirmation if the panel or his author is a reputed 
 thief or resetter." On this passage the Lord Justice-Clerk (Hope) observed that it had 
 " been reprobated fur the last forty years ;" Burns v. Hart, supra.
 
 § 3C. QUESTIONS OF INTENTION, &C. 35 
 
 secutioiis under the Coining Acts, tiie previous convictions for the 
 same ofl'eiico are relevant evidence for tlie jury in considering the 
 point of guilty knowledge ; but their weight will he impaired by a 
 considerable time liaving ela^jsed since their dates (m).^ They must 
 always be libelled on. 
 
 § 36. In a charge of forgery and uttering, it is material evi- 
 dence of the panel's g'uilty knowledge, that other forged notes have 
 been found on his person {n), or that he had previously made un- 
 successful attempts at uttering the notes (o). But such attempts 
 must be libelled on (p). In a charge of murder, previous expres- 
 sions of malice, or acts indicating that disposition, towards the de- 
 ceased are relevant ; but in order to prevent surprise, the proof is 
 restricted to expressions or conduct wliich occurred shortly before 
 the alleged crime, unless the indictment libels previous malice (r).^ 
 The prosecutor may, however, prove malice without hbelling it, if 
 the panel gives in a special defence of want of malice (s). Where 
 the prisoner is indicted for certain seditious expressions at a public 
 meeting, other expressions in the same speech may be proved, al- 
 though not libelled on, in order to shew the animus of the speaker 
 (t). But it is not settled whether words spoken at another meeting 
 not libelled on, held at the same time and for the same objects as 
 the one libelled on, can be proved for that purpose, without being 
 
 (m) Sutherland and Gibson, 1848, 1 Jn. Shaw, 135. (n) See 1 Al., 419. 
 
 (o) 1 Hume, 157, note — 1 Al., 416. The same remark is frequently made in cases 
 of uttering base coin ; see 1 Al., 455. (]}) Hume, ibid — 1 AL, 417. (r) See 
 
 this illustrated in 1 Hume, 257, and 1 Al., 11, In one case where the prosecutor had 
 not libelled previous malice, he was restricted to a fortnight before the date of the 
 murder; Divine, 16th June 1824 (High Court), noticed Al., supra. In ilillar, 1887, 
 1 Sw., 486, the Court admitted evidence of threats sliewing malice six weeks before the 
 murder, but only on the prosecutor stating that he would by other evidence bring the 
 malice (whicli was not libelled on) down to Mithin a fortnight of the crime. 
 
 (») Wright, 1835, 1 Sw., 6. (0 Grant and Others, 1848, J. Shaw. 54. 
 
 5 But see form of procedure in indictments under the Coinage Acts, according to 
 which the substuntive offence charged must be disposed of before the previous convic- 
 tions are proved ; 24 and 25 Vict., c. 29, § 34 — See ante, § 30, note 8. 
 
 6 In a trial for murder where malice was libelled, evidence of malice six or eight 
 weeks before the death was admitted ; Lord Advocate v. Salt, 18G0, 3 Irv., 549. 
 
 In a trial for murder of a woman, proof that the prisoner had within twenty-four hours 
 after the woman's death used expressions indicating malice toward her was admitted ; 
 also proof that on the second day after the alleged murder, a person, since deceased, had 
 complained of the conduct of tlie prisoner to the murdered woman ; Advocate v. Stewart, 
 1855, 2 Irv., 179. 
 
 C2
 
 ;U) RELEVANCY OF EVIDENCE IN §36- 
 
 luinated iu the indictment {u). A letter written on 30th April 
 1845 is not admissible evidence of a conspiracy libelled as having 
 f ommcnced in March 1848 ; the interval being too great to indicate 
 i-outiunity of criminal intent (x). 
 
 § 37. In England, also, collateral facts are admissible in order 
 to shew knowledge, malice, or intention (?/). Thus, in an action 
 by the indorsee upon a bill, where the defendant proved that the 
 payee's name was fictitious, and the plaintiff thereupon alleged that 
 the defendant knew it was so, or had given authority to the drawer 
 so to draw the bill, evidence of suspicious circumstances regarding 
 other bills accepted by the defendant, but not relating to the one in 
 question, was admitted in order to prove the allegation (z). " In 
 actions of defamation other words written or spoken by the de- 
 fendant, either before or after those declared upon, after issue 
 joined, are under the general issue admissible as proof of actual 
 malice, or deliberate intention ; and for this purpose it makes no 
 difference whether the language on which the action is founded be 
 equivocal or clear, whether the collateral words tendered in evidence 
 be addressed to the same party to whom tlie slander is alleged in 
 the declaration to have been spoken, or to a stranger, or whether 
 these words be in tliemselves actionable or not" (a). But the 
 collateral libel will only be received if it refers directly to the one 
 in issue, or relates to the same subject matter, as by repetition of 
 the same slander, or by use of other words which shew the same 
 train of thought, thereby indicating a continuity of rankling malice 
 on the part of the defendant (b). If it shews an animus of a diffe- 
 rent slander it will be rejected (c). It will also be excluded if the 
 evident object in tendering it is unfairly to recover damages for 
 publishing it, and not to shew the defender's animus in the libel in 
 issue {d). In an action of damages in England for false imprison- 
 ment, where the defendant pleaded not guilty, and a justification in 
 respect of the plaintiff having committed a felony, and where the 
 latter plea was abandoned and apologised for at the trial, the fact of 
 
 (w) Grant and Others, supra. Tliis evidence being offered and objected to on the 
 ground of surprise and want of libelling, the Crown counsel waived the question ; but 
 the Court observed that " it must not be considered as a ruling by them that language 
 intimating an intention of conspiracy could not be proved, though the specific occasion 
 on which it was used was not stated in the libel ;" per Lord Justice-Clerk Hope. 
 
 (x) Grant and others, 1848, J. Shaw, 54. (y) 2 Starkie Ev., 313—1 Phil., 461— 
 
 Taylor, 246—1 Greenl., 71— See also Du Bost v. Beresford, 1810, 2 Camp., 511, t7ifra, 
 § 88. (z) Hunter v. Gibson, 1804, 2 H. Black, 288. (a) Taylor, 246. 
 
 (6) Finnerty v. Tipper, 1809, 2 Camp., 72, per Lord Mansfield. (c) Fin- 
 
 nerty v. Tipper, supra. {dj Stuart v. Lovell, 1817, 2 Starkie R., 95 — Taylor, 248.
 
 §30. QUP:S'riO.NS OIMNTKNTION, itc. 37 
 
 tlie justilicatiou was held relevant matter for the jury iu estimating- 
 the damages, hecausc it was evidence of malice, and a great aggra- 
 vation of the defendant's conduct, as showing an animus of per- 
 severing in the charge to the very last (e). 
 
 § 38. The same principle holds in criminal cases in England 
 (/). Thus in an indictment for knowingly uttering a forged hank- 
 note, proof that the prisoner had shortly before uttered another 
 forged note of the same manufacture, and that a inimber of these 
 were in circulation at the time, is admitted to show his guilty 
 knowledge, although the indictment is silent upon them (r/). And 
 where the prisoners were charged with having conspired to cause 
 themselves to be believed persons of large property, for the purpose 
 of defrauding tradesmen, proof of other instances of false represen- 
 tation by them was received (A). On the same principle in trials 
 for treason, seditious language uttered by the prisoner at other times 
 regarding the conspiracy charged (i), or an " overt act not laid, may 
 be given in evidence, if it be a direct proof of any of the overt acts 
 laid :" and this is competent although the acts not libelled on were 
 committed in a foreign country (Jx)? 
 
 § o'J. It appears from these illustrations that the English prac- 
 tice is rather more liberal than ours in receiving collateral facts 
 in questions of knowledge and intention. TJiis diiference, and the 
 great dissimilarity between the forms of pleading in the two coun- 
 tries, render some caution necessary in applying the English de- 
 cisions to Scotch cases (/). 
 
 (e) Per Lord Abiuger iu Warwick v. Foulkes, 1844, 12 M. and W., 507. 
 
 (/) 1 Pliil., 472— Taylor, 249. {(/) l\. v. Ball, 1808, 1 Camp., 824— R. v. 
 
 Wylie, 1804, 1 Bos. and Pul. New R., 92. (A) R. v. Roberts, 1808, 1 Cami-.. 399. 
 
 (t) R. V. Watson, 1817, 2 Starkie R., 134—1 Phil, 470— See also R. v. Hunt. 1820. 
 3 Bar. and Al., 572— Layer's case, 1722, 16 State Tr., 164. <Jc) Foster, 10— 
 
 Deacon's case, 1746, 9 State Tr. (fo. ed.), 558— Layer's case, 1722, 16 State Tr., 221— 
 1 Phil., 470. (Z) Iu regard to criminal cases, the English doctrine of " Election" 
 must he kept in view. In this countiy it is competent, and is the practice, to include 
 in one indictment any number of separate offences of any degree of malignity, and only 
 where trying all of them at once would interfere with the justice of the case, does the 
 Court direct a separation of the trials ; 2 Hume, 171^ — Burke's Trial, 1828, Sep. Rep. A 
 separation, however, is very rarely required in practice. But in England the indict- 
 ment is framed in this way only in misdemeanours. In felonies the practice so to in- 
 dict " has from motives of Jiunianity been considerably modilied ; for as an indictment 
 containing several distinct charges is calculated to embarrass a prisoner in his defence. 
 *# . 
 
 ~ At a trial in England for obtaining money on falsp pretences, evidence that tiie 
 panel had within a week of the time i-liarged in tiie libel obtained money on similar 
 false pretences was not admitted ; Reg. r. Holt, I860, S C.^v. ( 'r. Ca.<.. 411.
 
 38 
 
 ADMITTING COLLATERAL FACTS, &C. § 40- 
 
 CHAPTER IV.— OF ADMITTING COLLATERAL FACTS TO DISCREDIT 
 AN opponent's witnesses. 
 
 § 40. It is incompetent to enter into an irrelevant inquiry for 
 the purpose of discrediting an opponent's witness or testing his ac- 
 curacy (m)} But some license in this respect is allowed in 
 examining witnesses to matters of opinion in science or the like ; as 
 their evidence can generally he tested only hy inquiring into the 
 data for their propositions, and by examining them upon analogous 
 and often hypothetical cases (?^). 
 
 the judges in the exercise of a sound discretion are accustomed to quash indictments so 
 framedrwlienever it appears, before the jury are charged, that the inquiry is to include 
 separate crimes. When this circumstance is discovered during the progress of the 
 trial, the prosecutor is usually called upon to select one felony and to confine himself to 
 that, unless the offences, though in law distinct, seem to constitute in fact parts of one 
 continuous transaction ;" Taylor, 242. (m) Thus in Innes v. Innes, 1837, 2 Sh. 
 
 and M'L., 417, affirming 13 S., 1059, where a party against whom a witness was ad- 
 duced attempted to prove that she had falsely represented herself to be the wife of a 
 certain person who had no concern with the cause, the evidence was held incompetent 
 both in the Court of Session and House of Lords, the Lord Chancellor Lyndhurst ob- 
 serving, " there would be no end of proceedings if the entering into such collateral issues 
 were ire'rmitted.'" So in Tennant v. Hamilton, 1839, M'L. and Rob., 821, per Chancellor 
 Cottenham— Whealler v. Mcthuen, 1843, 5 D., 1221—1 Starkie Ev., 189, 603—2 
 Starkie Ev., 313. Of course this does not apply to matters directly impugning the 
 witness's credibility, as malice, previous conviction of a crime, and the like. See the 
 chapter on the Credibility of Witnesses, infra. {n) This is the constant practice 
 
 in cross-examining scientific witnesses. In questions of forgery, specimens of the 
 handwriting of the same individual, although quite unconnected with the writing in 
 issue, may be shewn to the witnesses to test their accuracy, as in Bryson v. Crawford, 
 1834,' 12 S., 937— Rose v. Millar, 1831, 10 S., 95— See also Folkes v. Chadd, 1782, 
 3 Doug., 157. 
 
 ' It is incompetent to examine a witness on matters not connected with the subject 
 of the issue or libel, with the view, if her evidence should be false, of damaging her 
 credibility ; ruled in a trial for rape ; Lord Advocate v. Reid and Others, 1861, 4 Irv., 
 124. A witness for a prisoner said that lie could not speak English, and accordingly 
 gave his evidence in Irish. In cross-examination, he was asked if he had not spoken 
 in English to two persons in Court, and on his answer in the negative, the Crown pro- 
 posed to contradict him by examining these persons. The Irish Court of Criminal Ap- 
 peal held that the evidence ought to be rejected as raising a collateral issue ; Reg. r. 
 Burke, 1858, 8 Cox, Crim. Cas., 44. *.
 
 § 41 OF TlIK LIBKL AND ISSUE. 39 
 
 titlp: III. 
 
 OF PROVING THE ISSUE AND LIBEL 
 
 Having thus considered the rules as to the relevaucy of different 
 items of evidence, we proceed to treat of the application of the 
 whole proof to the libel and issue in the cause. As preliminary to 
 this inquiry, a few observations on the general nature of the issue 
 and verdict will be necessary.^ 
 
 CHAPTER I. — OF THE LIBEL AND ISSUE. 
 
 § 41. Jury trials in the Court of Session are conducted, and the 
 verdicts in them arc returned, with reference to "issues;" which are 
 queries putting to the jury categorically the points they have to 
 decide (a). The issues are prepared by the parties by whom they 
 are respectively required ; and are adjusted between the parties 
 with the aid of the Court (6). When so adjusted, they are settled 
 as the issues in the cause, and contain the only questions which the 
 jury have to determine. In the earlier jury cases every material 
 fact on which the parties ditfered was put in issue articulately (c). 
 But this practice was discontinued on account of its inconvenience. 
 For a number of years the issue, while fairly bringing out the facts 
 
 (o) Lord Cockbiiru thinks it would be a groat improvement to abolish issues ; Graham 
 ... M'Lachlan, 185:1. 15 D., '.UU. (/>) 18 ana 14 Vict.. -•. Sf., ? 38. (c) M'F. 
 
 on Issues, (i. 
 
 1 The present practice of the Court is. in most cases, to send a ca-oo to trial on issues 
 without any previous jud-ment on the relevancy of the pursuer's case, leaving questions 
 of law and relevancy for determination by the judge at the {rial.
 
 40 OF THE LIBEL AND ISSUE. § 41- 
 
 011 Avliicli the litigation turns, lias done so in a general and compre- 
 hensive manner (d)? 
 
 § 42. In criminal cases, and in proofs on commission in civil 
 causes, the proof is adduced with reference to the libel itself with- 
 out an issue.^ Eut issues are required when a case fitted for a jury 
 is, by consent of parties, tried by the Lord Ordinary without a jury, 
 under the recent Court of Session Act (e).^ When the Lord Ordi- 
 nary tries in this way (either with or without consent) questions of 
 fact which should be investigated Avithout a jury trial or proof on 
 
 (d) This practice was introduced Ly Lord Cliancellor Eldon, directing one general 
 issue to be laid before the jury in the second trial of the Earl of Fife's case, in place of 
 the seven special issues on which the case had been tried before ; E. Fife v. E. Fife's Trus- 
 tees, 1823, 1 Sh. Ap., 498. In actions of damages for defamation, each slander is still 
 put separately in issue ; see Lady Kamsay v. Nairue, 1833, 11 S., 1033.3 (e) 13 
 
 and 14 Vict., c. 36, g 4G. 
 
 2 Yv'hat is to be put in issue is the ground of action, from which is derived the in- 
 ference that forms the conclusion of the summons ; therefore what is called an issue 
 of resting owing, is not properly an issue at all, being extracted from the conclusions 
 instead of the condescendence and pleas in law, where only the grounds of action are 
 found ; j^e^r Lord Justice-Clerk, United Mutual Mining and General Assurance Co. v. 
 Murray, 18G0, 23 D., 69, 72. 
 
 When parties adjust issues to try tlie cause, and when these issues are approved of 
 by the Court as the issues for trying the cause, they will be held to embrace the whole 
 grounds of action on which the parties mean to insist, and to imply a departure from, 
 and abandonment of, every ground of action embraced by the summons that is not 
 embodied in tlie issues. Thus where, in an action of declarator of five different rights 
 of way, issues to try the cause, were adjusted and approved, which referred to two of 
 the paths only, there was held to be a virtual abandonment of the cause as regarded the 
 other three paths, and the Court would not permit the pursuers at a later stage of the 
 cause, to abandon the action quoad these three roads, reserving their right to bring a new 
 action, under the Act 6 Geo. IV, c. 120, and Act of Sederunt, 11th July 1828, but as- 
 soilzied the defender ; Hay v. Earl of Morton, 1862, 240 B. M., 1054. 
 
 3 In an action of damages for defamation where the first issue states precisely an 
 act of defamation, and the time when, jjlace where, and persons before whom, it was 
 uttered, the pursuer may in his second issue put to the jury whether the defender did 
 not say tlie same tiling repeatedly, without putting in the issue the days or places of 
 such repeated statements ; Innes v. Swauston, 1857, 20 T)., 250. 
 
 ^ The general rule is, that whenever matter of fact is in dispute, the case should go 
 to a jury, and the Court will not grant proof on commission except on special cause 
 shown. Where both parties wished a proof by commission as to an alleged practice of 
 trade, the Second Division refused to grant commission, and directed the parties to pre- 
 pare issues; Cameron v. Kerr, 1861, 23 D., 1257. 
 
 5 In Hood V. Williamson, 1861, 23 D., 496, the Lord Justice-Clerk observed that 
 cases likely to result in special verdicts were proper for trial by the Lord Ordinary 
 without a jury, and the provision of the statute was intended to provide for such cases ; 
 but ordinnry jury questions should go to a jury.
 
 § 44. OF TiiK ]Am:]. am) issue. 41 
 
 commission, there is uo issue, but the Lord Ordinary fixes the ques- 
 tion on which the proof is to be adduced {/).^ 
 
 § 43. The issues, when unandjij^ous and articulate, must be 
 construed as they stand; so that, although they put to the jury a 
 wider, a narrower, or even a diilcrent point I'rum that which is 
 brought out in the record, their true construction by themselves 
 determines their meaning (</). 
 
 § 44." On the other hand, if" the issue is ambigTious, the record 
 may be used fur tlie i)urpose of explicating it (h). This must al- 
 ways be done in tiiuls under a general issue ; which is framed upon 
 the footing of the record being referred to for the specific grounds 
 of action and defence {i).'' 
 
 (/) 13 and 14 Vict., c. 30, g 48. (</) Leys, Masson & Co. v. Lord Forbes, 
 
 1831, 5 W. S., 384, aliirming 9 S., 933. In tliis case liOrd Chancellor Brougham ob- 
 served, the ollicer who framed tlie issue " may have miscarried as much as you please ; 
 he may have put one fact in issue when there was another fact to be put in issue ; 
 he may have made the grossest blunder ; but you are bound by tlie issue he has 
 framed as it now stands." See also E. Fife v. E. Fife's Trustees, 1816, 1 Mur., 137 — 
 Bertrams v. Barry, 1818, 1 Mur., 347— Berry v. "Wilson, 1841, 4 D., 139— Cuthbertson 
 V. Young, 1851, 14 D., 301. In a recent trial, however, under an issue whether a bank- 
 rupt had been concerned in tlie giving of a sum to a creditor as a consideration for " con- 
 curring in facilitating or obtaining " his discharge, the presiding judge observed, that 
 nothing could be established under the words " facilitating or obtaining," as these were 
 not in the record, or in the section of the statute founded on ; and the trial accordingly 
 proceeded on that footing ; Inglis v. Gardner, 1843, 5 D., 1029, per Lord Justice-Clerk 
 Hope. (h) Bertrams v. Barry, 1818, 1 Mur., 347— Leven v. Young, 1818, 1 Mur., 
 
 355 — Scruton v. Catto, 1822, 3 Mur. 61 — See also per Lord Justice-Clerk Hope in Berry 
 V. Wilson, 1841, 4 D., 139. («; See Macf. on Issues, 9— Cowan v. Watt, 1833, 
 
 11 S., 999. 
 
 6 The Lord Ordinary may competently under this provision fix for proof questions 
 exhaustive of the cause ; Kanken v. Drew, 1855, 17 D., 303. 
 
 7 On this point the opinions recently expressed in the House of Lords are at variance 
 with the practice in the Court of Session. In the Househill Co. v. Neilson, 1843, 2 
 Bell's Ap., 24, Lord Campbell mentioned with much commendation, the practice in the 
 Courts in Scotland, of controlling the proof to be led under a general issue by the aver- 
 ments in the record, and stated that the House liighly approved of, and would most care- 
 fully guard that practice ; and the judgment of the House proceeded on a recognition 
 of that practice. There has been no subsequent decision in the House of Lords incon- 
 sistent with these views. But in I\Iorgan r. Morris, 1855, 27 Jur., 600, the Lord Chan- 
 cellor (Cranworth) and Lord Bruugliam expressed an opinion that, after the issue was set- 
 tled, the record could not be looked to, and the case of Neilson was spoken of as a special 
 case, because it was a patent case. Wlien the case of Morgan v. Morris came again be- 
 fore the House of Lords, in 1858, 3 Macq., 339, Lord Chancellor Chelmsford said, " It is 
 most important always to boar in mind that the questi(m to be tried is involved in the 
 issues, and in these alone, and that you are not at liberty to go out of them for the pur- 
 pose either of limiting thu inquiry or doliiiing with more particularity the points to be
 
 42 OF THE LIBEL AND ISSUE. § 45- 
 
 § 45. Altliougli after the issues have been fixed t]iey cannot be 
 altered except of consent {j ) ; yet an accidental error or miscopj 
 may be corrected at the instance of either party, although the other 
 objects (A:).^ And in allo^\^ng a new trial the Court may direct it 
 to be on a different issue, which they consider better calculated than 
 the former one to meet the justice of the case {I). 
 
 § 46. The interlocutor of relevancy in a criminal case corre- 
 sponds to the approval by the Court of the issue. It ties down the 
 prosecutor to evidence in support of the libel as found relevant, and 
 it excludes the prisoner from denying that the acts charged against 
 him are criminal. Accordingly, in a trial for publishing blasphem- 
 ous works, in which the truth of the Bible was denied, the usual 
 interlocutor of relevancy having been pronounced, the Court pre- 
 vented the prisoner (who defended himself), from pleading to the 
 jury that the Bible deserved the aspersions he had cast upon it(m). 
 
 {}) Cochran v. "Wallace, 1820, 2 Mur., 29G. {k) M'Neill v. CaldweU, 1853, 
 
 15 D., 590— Cooper v. Mackintosh, 1823, 3 Mur., 358— Dunlop v. Buchanan 1828, 5 Mur., 
 17— Macf. Pr., 75— See also Inglis v. Gardner, 1843, 5 D., 1029, per Lord Justice-Clerk 
 Hope. In Edwards v. Begbie, 1850, 13 D., 227, where the schedule of damages had 
 been omitted in engrossing the issue, the Court allowed it to be added on a motion made 
 after notice of trial had been given. (I) E. Fife v. E. Fife's Trustees, 1823, 1 Sh. 
 
 Ap., 493— Inglis v. Great Northern Rail. Co., 1851, 1 Macq., 112. (m) Pater-son, 
 
 1843, 1 Broun, 629— See also Letters v. Black, 1848, Arkl., 497. 
 
 determined by the jury." The same views were expressed in the House of Lords in the 
 case of Bryden, 1855, 2 Macq., p. 34, and in the very recent case of Robertson v. Flem- 
 ing, 1861, 33 Jur., 691, G98. On the other hand, it has, on several occasions, been very 
 distinctly announced from the bench in Scotland that this doctrine is " opposed to the 
 whole course of our i^ractice, and to the principle and purpose of our system of closed re- 
 cords ;" per Lord President in Keir v. Magistrates of Stirling, 1858, 21 D., 171. See also 
 Fairley v. O'Halleran and Brown, 1855, 18 P., 78— Christie v. Thomson, 1859, 21 D., 348, 
 per Lord Deas — MacGillivray v. Soutar, 1860, 23 D., 212, 215. There has been no change 
 in the practice of our Courts on this point, and records are still before the presiding 
 judge at jury trial for general reference, and are used for the imrpose of controlling 
 and limiting tlie proof. 
 
 ^ Where a tenant stated in his record and issue that certain operations by his land- 
 lord, of which he comiDlained, were made " about the month of April 1850," the Court 
 refused to allow him to correct the record and issue by substituting for that date. " the 
 spring of 1851 ;" Hill v. Kinloch, 1855, 17 D., 958. But where it was put in an ad- 
 justed counter-issue whether the pursuer of an action for defamation had committed for- 
 nication " in the house No. 5 Brown Street," the issue was amended by striking out 
 " No. 5," and adding the word " Lane " after Street, there being no No. 5 eitiier in 
 Brown Street or Brown Street Lane, and Brown Street Lane being the place mentioned 
 in the condescendence ; A. B. v. Skae, 1857, 19 D., 958. Tlie Court allowed an altera- 
 tion on a closed record, before issues were adjusted, of the alleged date of the defama- 
 tion, which was the subject of the action, the error being a mere inadvertency, and the 
 record itself affording the means of correcting it ; Bayne v. Macgregor, 1862, 24 D., 
 1126— Mrs Blaikie v. Duncan, 1857. 19 D., 1095.
 
 4-7. OF TTTE VERDICT. 43 
 
 CHAPTER II. — OF THE VERDICT. 
 
 § 47. Ill civil tiiuls tlie verdict is delivered in Court orally by 
 the chancellor of the jury ; and, after being C(jniniitted to writing 
 by the clerk, is read aloud to the jury, in order that any error in 
 taking it down may be corrected.^ In criminal trials the verdict 
 used to be delivered to the judge in writing and sealed up. The 
 judge then opened the enclosure, read the verdict, and delivered it 
 to the clerk of Court, by whom it was engrossed verbatim in the 
 record: and the original and record-copy having been compared, 
 the verdict as recorded was read aloud by the clerk in presence of 
 the jury (w). But this practice was the source of many technical 
 objections, which materially interfered A\dth justice ; and therefore 
 oral verdicts were introduced by statute (o). They are now used 
 ahnost invariably ; for even where the verdict is committed to writ- 
 ing by the jury for the sake of accuracy, it is read by their chan- 
 cellor as an oral verdict. The verdict on being announced by the 
 chancellor is written down by the clerk, and read over to the jury 
 as in civil cases. The advantage of this practice is, that if the ver- 
 dict is ambiguous, or does not meet the issue or libel, the judge 
 may call the attention of the jury to the circumstance, and may re- 
 inclose tlieni, and even decline to receive the verdict until it has 
 been corrected {])). The written verdict, on the other hand, must 
 be copied into the record with all its imperfections, and cannot be 
 altered or explained by the jury after they have assented to it in 
 Court (?'). But as the object of reading it over to them is to secure 
 their assent, they may repudiate it in Court at the time ; otherwise 
 the chancellor and clerk might concert and record a false verdict (s). 
 For this reason, also, a written verdict would be ineffectual, if it was 
 
 (n) 2 Hume, 428—2 Al., 637. (o) 54 Geo. Ill, c. G7— 6 Geo. IV, c. 22, § 20 
 
 — 9 Geo. IV, c. 29, § 15. The last of these Act.s abolished the written verdict in all 
 rases vrliere it is returned before the Court adjourns. ( p) Adam on Jur. Tr., 235 
 
 —2 Al., 637, and cases there cited— Wilsons, 1826, Symc, 43— Hunter and Others, 1838, 
 2 Sw., 15, per Lord Justice-Clerk Boyle — Brodie i-. Johnston, 1845, 2 Broun, 559, per 
 Lord Cockburn— Grant and Others, 1848, J. Shaw, 01. (r) 2 Hume. 429—2 .\1., 
 
 642. (s) Ibid. 
 
 ' 11" in a trial of civil causes, after three hours deliberation, nine or more of the jury 
 shall agree, a verdict may bo returned. If after .six hours deliberation nine of the jury 
 have not agreed on a verdict, the jury may be discharged ; 22 and 23 Vict., c. 7. 
 
 " Not Proven " is a competent verdict in civil causes ; Morgan r. Morris, 1865, 2 
 Macqueen, 342, 350. It is the usual deliverance in the ecclesiastical diurts of Scot- 
 land, when a person ;vccused is assoilzied on the proof.
 
 44 OF THK VERDICT. § 47- 
 
 liaiided privately to the judge and not read over and assented to by 
 the jury in Court (t). The general rule against explaining the 
 written verdict by questions put to the jury was somewhat over- 
 looked in a case where the prisoner was incorrectly designed, and 
 the Court asked the jury if the verdict referred to him ; and on 
 their answering that it did, pronounced sentence accordingly (u) ; 
 and in another case where the verdict mentioned the libel as an in- 
 dictment, and the Court asked the jury if it meant the criminal 
 letters on which the prisoner had been tried (x). But in both of 
 these cases the meaning of the verdict was manifest without the 
 explanation. In a previous case the Court asked the chancellor of 
 the jury what they meant ])y the ambigTious written verdict of 
 " guilty, but not to the extent libelled." Baron Hume, however, 
 states good grounds for questioning that decision (?/). 
 
 § 48. When the verdict has been engrossed in the way above 
 mentioned, it becomes part of the records of Court, subject to the 
 general rule as to such writings, by which it is probative and con- 
 clusive proof of what the jury meant to find(s). Accordingly it may 
 not be contradicted by showing that the jury, although allowing it 
 to be recorded as their verdict, were concussed into emitting it, or 
 that they did not really consent to it by a majority, or unanimous- 
 ly, where that is necessary (a), or by proving that they understood 
 that mitigated findings, which it contained, would have exempted 
 the prisoner from capital punishment, which tlicy intended their 
 verdict to do (b). Nor may a recommendation to mercy be added 
 to the recorded A'Crdict (c). On the same principle, in interpreting 
 the verdict it is incompetent to receive evidence of what the jury 
 intended to find (d), or (with the exception aftermentioned) to 
 look at the evidence on the trial, even although the verdict is am- 
 bigTious (e), or self-contradictory (/).^ It may, however, be im- 
 
 (t) On tliis ground the verdict in a trial before a Sheriff under a special statute was 
 overturned; Forbes v. Mag. of Aberdeen, lltli Feb. 1800, F.C. (//) Alexander. 
 
 1823, 2 Al., 642. (x) Campbell, 1823, 2 Al., 642. (.y) D. Grant, 1818. 
 
 2 Hume, 426. (z) 2 Hume, 426, et seq.— Adam on .Ju. Tr., 235—2 AL, 640, 642. 
 
 (a) 2 Hume, 427— Mill v. Nicol, 1767. Maclaurin, 372— Maekintcsh v. Fraser, 1834, 
 12 S., 872— See also Forbes v. Mag. of Aberdeen, 11th Feb. 1809, F.C. (!>) Mac- 
 
 gregor, 1752, Maclaurin, 149. (c) Darling, 1830, Bell's Notes, 295. But the 
 
 Court intimated that they would pay regard to the recommendation in fixing the punish- 
 ment, {d) Macgregor, supra — Adam on Jur. Tr., 232 — K. v. Woodfall, 1770, 5 
 Burr., 2661. (e) Spcir v. Dunlop, 1825, 4 S., 92— Walker v. Steele, ib., 323— Berry 
 v. Wilson, 1841, 4 D., 139— Adam on Jur. Tr., 235. (/) Hunter, 1838, 2 Sw., 1. 
 
 2 " In the case of a verdict which is ambiguous, imperfect, or inconsistent, its effect is
 
 § 48. OF THK VKHDICT. 45 
 
 piigiied oil grounds vvliieli striki' at its essential justice, — as tliat 
 the jury wore tampered with and misconducted themselves gross- 
 ly ((/), that they cast lots lor the verdict (/<), or that it was returned 
 to the judge privately, -wnthouf* being read over to tho jury in Court, 
 
 and without their consenting to it (i).* 
 
 tf 
 
 (g) M'Whir v. Maxwell, 1836, 16 S., 299— See Black v. Croall, Jan. 1854, in pen- 
 dente? (h) Stewart v. Fra;^er, 1830, 5 Mur., lOG— Adam, Jur. Tr., Appx., No. 
 14. But it was lield that the jury are iuadmis.'iible to prove such an allegation ; Stewart 
 V. Fraser, and M'Whir v. Maxwell, siqjra. This point is considered afterwards in treat- 
 ing of the admissibility of the judge and jury as witnesses. (i) Forbes v. Mag. 
 of Aberdeen, 11th Feb. 1809, F.C. 
 
 to be derived, and only to be derived, from the terms in which it is expressed. It is a 
 written document submitted to the legal consideration of a Court, and always to be con- 
 strued by the legal wisdom and faculties of the Court ; the Court alone is the tribunal 
 which must say whether the verdict is ambiguous, &c., or not. If it is not ambiguous, 
 &c., it must be applied, and judgment must proceed upon it. If the Court is of opinion 
 that it is ambiguous, the ambiguity, &c., cannot be remedied by the Court changing the 
 expressions of the verdict ; as in that case the Court would encroach on the province of 
 the jury. The only redress which they can administer is ordering a new trial "; Adam 
 on Jury Trial, p. 295, quoted and adopted by the Lord Chancellor (Chelmsford) in Mor- 
 gan V. Morris, 1858, 3 Macqueen, p. 337. 
 
 3 16 D., 431. A new trial was granted on the ground of inadequacy of the damages 
 awarded, but nothing is said in the report about tlie conduct of the jury. 
 
 ■* In the late case of Dobbie v. Johnston and Russell, 1861, 23 D., 1139, where the jury 
 returned a verdict which they intended as a verdict for the pursuer, but which was held 
 to be clearly for the defender, the law of verdicts was carefully considered. In answer 
 to an issue whether the pursuer had been induced to purchase bank stock by false and 
 fraudulent representations made by the defenders, the jury returned a verdict that the 
 pursuer was induced to make the purchases by the false representations of the defenders, 
 but that these representations were not fraudulent. That verdict, the presiding judge 
 informed them, was necessarily, in his opinion, a verdict for the defenders, but the fore- 
 man of the jury said it was meant as a verdict for the pursuer. The verdict was re- 
 corded as returned. It contained no assessment of damages. The pursuer moved for 
 a new trial, and produced affidavits by the foreman and nine of the jurymen, who de- 
 clared that they meant the verdict to be for the pursuer ; that unless they had thought 
 it was for the pursuer, they would not have returned it; that they had agreed on 
 the amount of damages whicii they were prepared to have f<iund due, and that the fore- 
 man wouhl have stated the amount, but that from what was said by the judge, he re- 
 ceived the impression that tho assessment of the damage was tho province of the Court. 
 The verdict was therefore objected to as proceeding on a misapprehension by the jury. 
 It was also objected to as being neither a complete special verdict, because it con- 
 tained no assessment of the damage, nor a general verdict, because it contained no 
 general finding for jmrsuer or defender. The Court held that, with regard to what 
 passed in open Court, the statement by the presiding judge was conclusive, and tliat 
 affidavits of the jurymen could not have been received in contradiction of that state- 
 ment, nor regarded if inconsistent with it ; but they considered that there was in fact 
 no inconsistency between tho judge's statement and the affidavit ; that the verdict was 
 a distinct and exhaustive answer to the issue ; that it was a general verdict, and 
 llmt it was no objection to it, as sucli, that it contained no general finding for pursuer or
 
 46 OF THE VERDICT. § 49- 
 
 § 49. Kutwithstandiug tins strictness, clerical errors which 
 have been committed in engrossing the verdict in civil cases, may 
 be corrected on application to the Court {k), and this would pro- 
 bably be allowed in criminal cases also (l). Baron Hume mentions 
 a few instances in which the original and the record copy of the 
 written verdict were compared in consequence of it being alleged 
 
 (k) Kirk v. Gutlirie, 1817. 1 Miir., 279— Dalziel v. D. Queensherry's Exrs., 1826, 4 
 Mur., 18— Macf. Prac, 230— See also Ritcliie v. Ferguson, 1849, 12 T)., 119. 
 
 CO See Henry v. Young, 1846, ArM., 105, where the word " her " had been written 
 over " him " in the record of a criminal sentence by the Sheriff, and the Court hold it 
 not to be fatal, on the presumption that the sentence had been read over to the prisoner 
 in its altered state. 
 
 defender ; that, inasmuch as it negatived fraud, it was necessarily a verdict for the de- 
 fenders ; that an assessment of damages could not have altered the nature of the verdict, 
 but would have been useless and absurd ; and that no regard could be paid to the state- 
 ment of the jury that they would not have returned the verdict unless they had thought 
 it was a verdict for the pursuer, because that amounted to an assertion by the jury that 
 they would, from favour to the pursuer, have abstained from returning a verdict in ac- 
 cordance witli the facts. 
 
 Lord Wood, holding the affidavits immaterial, found it unnecessary to determine for 
 what purposes they were admissible, or whether they were admissible at all. Lord 
 Cowan thought that, in regard to what passed in Court, the statement of the presiding 
 judge, made from his notes at the trial, could alone be received ; and that the jurymen 
 could not be allowed, either directly by themselves, or through their foreman, to im- 
 pugn what passed in their presence and in open Court, in reference to the verdict re- 
 turned and recorded with their consent ; but that, with respect to occurrences not in 
 presence of the Court, and which might affect the regularity of the procedure and con- 
 duct of the jury, the affidavits might be legitimately considered ; when the foreman had 
 committed a mistake as to the views of the jury, that had been allowed to be the sub- 
 ject of inquiry by affidavit tendered immediately on discovery of the error. His Lord- 
 ship lield, however, that the affidavits of jurymen were not admissible to prove the mis- 
 conduct of the jury, or other wrongous procedure, whereby the verdict had been impro- 
 perly obtained or unjustly returned ; but that the affidavits of all other persons were ad- 
 missible for that puriiose. Lord Benholme would have hesitated to admit the competency 
 of the affidavits had they been intended to impeach the verdict returned and assented 
 to in open Court; it would be very dangerous " to admit of such ex post facto impeach- 
 ment by the jury of their own solemn and public declaration on oath ;" Dobbie v. John- 
 ston and Russell, 1861, 23 D„ 1139— Harvey v. Hewitt, 1840, 8 Cowling's Practice Cases, 
 598— Cogan v. Ebden, 1757, 1 Burrows, 383— Stewart v. Eraser, s?/jc>ra— M'Whir v. 
 Maxwell, supra. 
 
 That it is not necessary, that in a general verdict there should be a general finding 
 for either pursuer or defender, was decided in Kyle v. M'Pherson, 1856, 18 D., 1031. 
 
 There was held to be no good objection to the competency of a verdict which was 
 returned in the absence of the pursuer's counsel and agent, who came into Court when 
 the clerk was writing it out ; Dobbie v. Johnston and Russell, supra. The Court refused 
 a motion for a new trial, on the ground of the verdict having been returned and de- 
 livered to the clerk of Court in absence of the judge, holding that the parties having 
 taken no exception to his absence, had consented to dispense with his presence ; Brown- 
 lie V. Tennant & Co., 1855, 17:D., 422.
 
 § 50. OF TilE VKl;l)l(JT. 47 
 
 that they were dissimihir (w). But it does uot api^ear whether 
 this could he done in order to correct the record, or only in order 
 to overturn it, if inaccurate. The same learned commentator thinks 
 it a difficult (question whether the Court could entertain the allega- 
 tion tliat a material word had hy inadvertence been omitted in a 
 written verdict, e.g., that not had been omitted before guilty {n)} 
 
 § 50. The House of Lords recently took a much wider view 
 than had previously been entertained of the power of the Court of 
 Session over verdicts in civil trials before them. This occurred 
 in an action of reduction improbation of certain transferences of 
 money and bills, where tlio issues were alternatively, " whether the 
 defender, taking advantage of the weakness and facility" of the 
 ancestor of the pursuer, " did by fraud or circumvention or intimi- 
 dation procure the subscriptions," &c., to the documents in issue. 
 The jury returned a verdict " for the pursuer ;" which, having been 
 entered on record in these terms by the clerk, was objected to as 
 ambigiious, because it did not show^ which of the alternatives in 
 issue was found proved. The House of Lords, on the opinion of 
 Lord Truro, held that this was a mis-entry by the clerk, that the 
 record should have borne that the jury found that the particular 
 " documents were obtained from the deceased by such and such 
 means," — but that the entry might still be corrected by the Court 
 from the notes of the judge who presided at the trial. The case 
 was accordingly remitted to the Court of Session ; and the entry ol 
 the verdict was amended so as to make it specific on the several 
 facts in issue (o). This proceeding, borrow^ed from the English 
 practice, is a convenient novelty in the law of Scotland.^ 
 
 (m) Blair, 1681, 2 Hume, 429— Cunningham, 1730, ib.— Hog v. Souter, 1738, 
 Hume, ib.— See also Livingstone, 1749, ib., and Maclaurin's Cr. Ca., No. 55, S. C. 
 («) 2 Hume, 430. (o) Marianski v. Cairns, 1852, 1 Macq., 212, and 15 D., 2fi8.« 
 
 5 Perhaps the competency of such an alteration could not now be doubted, after the 
 observations made in the House of Lords in Marianski v. Cairns, 1851 and 1854, Mac- 
 queen, p. 212, 76G — Morgan v, Morris, 1858, 3 Macquecn, 323. 
 
 6 The judgment of the Court was affirmed on appeal ; Marianski v. Cairns, 1854, 1 
 Macqueen. Tiie rule of practice appears, however, to have been misunderstood and 
 misapplied by the Court in the subsequent case of Morgan v. Morris. The distinction 
 between what was then held to be beyond the power of the Court, and what in the case 
 of Marianski was held to be within the competency of the Court, seems somewhat narrow. 
 In Morgan v. Morris, the issues adjusted in a multiplepoinding regarding the estate of a 
 deceased, were, (1) whether the pursuer A. M. was nearest and lawful heir of the de- 
 ceased ; (2) whether the pursuer J. M. was, along with A. M.. next of kin of the deceased. 
 The jury found " the case for the pursuers is not proven." The Court applied the verdict 
 on the motiim of the defenders, and repelled the claims of A. M. and J. .M. On appeal.
 
 48 OF THE VERDICT. § 51- 
 
 § 51. Ill connection with this subject, it may bo mentioned 
 that decrees-arbitral are not effectual until they have been dehvered 
 as finished writs, or have been recorded. If the arbiter has only 
 
 the House of Lonls lield that the verdict was imcertain, because it did not show whether 
 the pursuers had failed iu proving both the issues, or only one of them ; and the cause 
 having been remitted, the Court of Session endeavoured to follow out the procedure 
 sanctioned in the case of Marianski, by amending the verdict. They considered the 
 notes of evidence of the ]iresiding judge and his notes of his charge, and having re- 
 quested his Lordship to state in what manner he would at the trial have directed the 
 verdict to be entered, if any motion had been made respecting the general terms in 
 which the verdict was returned, his Lordship stated that he would have directed the 
 clerk to enter a verdict that the jury "find the case for the pursuers is not proven, and 
 therefore that upon the first issue they find that it is not proven that the pursuer A. 
 M. is nearest and lawful heir of" the deceased : " and upon the second issue, that they 
 find that it is not proven that the pursuer J. M. is, along with said A. M., next of kin 
 of the" deceased. The Court thereupon " find that it is competent for the Court, after 
 a verdict has been taken down in terms wliicli are uncertain or ambiguous, to consider 
 and exainine the notes of the evidence, and the sumining i;p of the judge, with the re- 
 port of his opinion, in order to ascertain, provided they have clear materials for doing 
 so, the true meaning of the jury according to the actual substance of the questions at 
 issue between the parties on the evidence adduced, so as to enter the verdict in the 
 form and manner adapted to the trutli and reality of the case. And with the mate- 
 rials afi'orded to the Court in this case in the judge's notes of the evidence, and of his 
 summing up, and his opinion in the case, the Lords find, in concurrence with the 
 view taken by the judge at the trial, that substantially one point, and one point only, of 
 importance was in dispute between the parties, and on which the answer to each issue 
 equally depended ; viz., whether the father of the piirsuer " was a brother of the father 
 of the deceased ; and that if the pursuers failed to prove that, a verdict finding such 
 failure " clearly imported in the intention and opinion of the jury that a negative an- 
 swer must be returned, equally on each of the issues ;" and their Lordships accordingly 
 directed the verdict to be entered in the terms in which (as above quoted) Lord Justice 
 Clerk (Hope) had stated tliat he would at the trial have directed them to be entered. 
 But the House of Lords, on appeal, distinguished the case from that of Marianski, which 
 they held merely to authorise the correction of an erroneous entry by the clerk of a 
 good and sufficient verdict ; but they held that in the case of Morgan, it was not the 
 entry which was erroneous, but the verdict itself which was bad and uncertain ; where 
 an uncertain verdict was once received and recorded, the Court had no power to amend 
 it, and the only remedy was a new trial ; an erroneous entry of a verdict rightly re- 
 turned might always be corrected, but not a bad verdict. Lord Cranworth thought the 
 amended verdict as bad as the original verdict, because it merely deduced the special 
 findings applicable to each issue from the general verdict, whereas the only reason why 
 the general verdict had been held uncertain, was that it could not, by logical deduction, 
 be specially applied to each issue ; Morgan v. Morris, 1855, 2 Macqueen, 342, 350; 
 1856, 18 D., 797; 1858, 3 Macqueen, 323. Where a jury returned a special verdict, 
 which did not afford sufficient materials for a judgment in favour of either party, the 
 Court directed a new trial; Caledonian and Dumliartonshire Railway Co., 1854, 17 D., 
 25. But where a jury give damages for matters which they cannot competently in- 
 clude in their verdict, such an error may, it is thought, be corrected without a new 
 trial; ^er Lord Chancellor in Morgan v. Morris, p. 334, quoting Dalziel v. Queensberry's 
 Executors, 4 Mur. 18.
 
 § 52. OK THE \'ERDICT. 41) 
 
 issued a copy of liis decree witliout parting with the principal (/)), 
 or has only delivered the principal to the clerk of the suhniission (v), 
 it is held to he an intended not a final decree. An iuiperfect 
 decrce-arl)itral, even in a verhal sulnuission, cannot he completed 
 by proving what the arl)iter intended to find (s). Nor are notes 
 issued hy him intimating the terms of his intended judgment equi- 
 valent to a decree, as they do not contain a final decision (t). 
 Consequently the issuing of them will not empower the arbiter to sign 
 a decree-arbitral in their terms after the submission has expired (u). 
 The sultject of the preceding paragraphs is resumed in treating 
 of the effect of judicial records, and the admissibility of extrinsic 
 evidence to contradict or explain formal writings. 
 
 CHAPTER III. — VARIANCE BETAVEEN THE ALLEGATION AND 
 
 THE PROOF. 
 
 § 52. As the object of making up a record is to bring out the 
 facts in dispute betw^een the parties, and thus to prevent surprise 
 on either side, a (lifferent case from that wdiicli is averred cannot 
 be proved, although it may in itself be a good ground of action or 
 defence. On the other hand, slight and immaterial differences be- 
 tween the libel or the issue and the proof will be disregarded, be- 
 cause they cannot prejudice the other party, and ordinary care will 
 not prevent them from occasionally happening. The question, 
 whether the variance in any particular case is substantial, depends 
 on the nature of the allegation, and tlie object for whicli it is made. 
 It is therefore impossible to lay down any precise rules for deter- 
 mining such questions. Tlie application of the general principle, 
 how^cver, will be seen from the following illustrations. 
 
 A case laid upon a verbal agreement between the pursuer and 
 defender cannot be made out under the stipulations of a written 
 lease from a third party to the defender (x). Under a summons 
 laid on a vitiated bill, decree cannot be obtained for payment uf a 
 different bill, wdiich had been retired by the one libelled on (?/). A 
 
 (;j) Gray i?. M'Nair, 1831, 5 S., 735 ; affil., 5 W. aiul S., 305. See this noticed in 
 the cliapter on the Delivery of Decfls. (r) Robertson v. Ramsay, 1783, M., 653, 
 
 17,009; Hailcs, 912, S. C, compared \\nth Simiisou t-. Strachan, 1736, JI., 17,007 ; Elch. 
 Arbitration, No. 2. («) Campbell v. Mitchell, 1831, 9 S., 875. (0 Lang v. 
 
 Brown, 1852, 15 D., 38. («) Lang v. Brown, stipra. {x) Still's Tr. v. Chivas, 
 
 1829, 8 S., 9. (if) Murdoch & Co. v. Lee, 1801, House of Lords, 2 De. & And., 
 
 341, note. 
 
 D
 
 50 VARIANCE BETWEEN THE ALLEGATION § 52- 
 
 party claiming delivery of a bill bearing to be indorsed by him, and 
 wbicli he alleged he had delivered to the defender for a special pur- 
 pose, may not prove that his signature was forged, there being no 
 averment in the summons to cover such a case (2). An action laid 
 upon a bill indorsed by the pursuers to the defender cannot be sub- 
 stantiated by a bill indorsed by the defender to a bank and there- 
 after retired by the pursuers (a). Proof of au act of homologation 
 will not be sufficient under a general issue of usage of trade, even 
 where, if properly averred, it would have been conclusive of the 
 case (b). An action laid on an agreement between the pursuer and 
 defender to keep house togetlier at their inutual expense, cannot 
 be substantiated by proving a claim for board ajid maintenance (c). 
 A claim for payment of £1000 as the tocher due to tlie pursuer on 
 his marriage with the defender's daughter, canrutt be made out by 
 proving the defender's promise to give £1000 to his daughter for 
 herself and her children (d). So in an action for repaj^ment of a 
 sum as having been advanced to the defender, the pursuer may not 
 prove a case of professional negligence in tlie defender (who was 
 her law agent), in advancing the money for her on a bad security 
 (e). Under an issue whether a certain cliange in the direction of 
 the boundary stream between two properties had been produced by 
 the improper operations of William Kerr, evidence of operations by 
 Gilbert Kerr was excluded (/). On the same principle it is incom- 
 petent in an action for defamation to prove a different slander (g), 
 or one uttered in a different language (h), from the slander averrred. 
 And where the issue embraces a specific slander, " or other expres- 
 sions to that effect," the alternative will only cover sliglit variations 
 from the words specified, and not entirely different words' although 
 similar in meaning (i). It was also recently held that under an 
 issue wliether the defender had by an innuendo cliarged the pursuer 
 with "having been a prisoner at the bar of a police court charged 
 vdth a criminal offence, and having obtained possession of pledges 
 or pledged goods by improper or unlawful means, or under circum- 
 stances inferring criminal conduct" on his part, it would not be 
 competent to state the inrmendo to the jury as being, that the pur- 
 
 (z) Ker V. Baird, 1827, 5 S., 926. {a) Ewing's Tr. v. Farquharson, 1829, 7 S., 
 
 464. (b) Sheriff v. Stein's Assig., 1828, 4 Mur., 457. But the homologation is 
 
 relevant evidence of the usage; ib. 464. (c) Cunningham v. M'Gachen, 1831, 9 
 
 S., 472. {fTj Nicolson v. M'Alister, 1830, 8 S., 488. (e) Hunter v. Orr, 1837, 
 
 16 S., 201. (/) M. Tweeddaler. Kerr, 1821, 2 Mur., 572. («/) Ross r. 
 
 Monro, 1803, Hume, 621. (h) Martin v. M'Lean, 1844, 6 D., 981. (i) Martin 
 
 V. M'Lean, ib. — Ross v. Monro, ib.
 
 § 52. AND THK rUOOF. i)l 
 
 suer had received goods knowing them to be stolen (k). Lord 
 Chief Commissioner A<l;im once observed that "scoundrel" and 
 "rascal*' are so far synonymous, that an issue laid upon the one 
 expression might he proved li}"^ evidence of the other (Z). An im- 
 portant illustration of the conse<iuenccs of a variance between the 
 issue and the proof occurred in a recent case, where a party raised 
 an action of damages on the gTound that the defender by himself, 
 or others authorised by him, had entered the pursuer's premises, 
 searched them on a cliarge of theft or reset, and carried away from 
 them a quantity of lead, on the false pretence that it had been 
 stolen from the defender; and on the farther ground, that this was 
 done maliciiiusly and without probable cause ; and w'liere the de- 
 fender pleaded that he had without malice acted under a regular 
 warrant obtained from a magistrate for recovery of lead which had 
 been stolen fr('m his premises. The case having l)een tried on an 
 issue whether the defender, by himself, or those acting under his 
 authority, had wrongfully and illegally entered the pursuer's pre- 
 mises, and carried away the lead on the false and calumuii.>us alle- 
 gation that it had been stolen, the presiding judge directed tlie jury 
 that the warrant which the defender had obtained was legal and 
 valid, but that the pursuer was entitled to a verdict, if the jury 
 were satisfied that the entry and seizure had been made by or on 
 behalf of the defender, maliciously and witliout probable cause. 
 On a bill of exceptions, however, it was held that this direction 
 was erroneous, that the pursuer couhl not under his record and is- 
 sue prove that the defender had acted maliciously and without pro- 
 bable cause in applying for the warrant, and that the jury should 
 have been directed tliat if the entry and seizure were made by con- 
 stables acting under the warrant, the defender was entitled to a 
 verdict (m). The ground of decision Avas, that the pursuer by his 
 averments and issue undertook to prove that the defender had en- 
 tered the premises and made the seizure wrongfully an<l illegally, 
 without a legal warrant ; whereas, at the trial he attempted to 
 prove that the defender had c-btaineil and used a legal warrant 
 maliciously, and without i)robable cause. Consequently, although 
 the pursuer's proof would have entitled him to a verdict under an 
 issue of malice and want of probable cause, it was not a proper an- 
 swer to the issue on which the cause was tried. Tliis case also il- 
 lustrates the principle that when malice is essential to the pursuer 
 
 (A) Scouller v. Gun. 1852, 14 D.. 020. (/) Christiau t-. Keunedy, 1818, 1 Mur., 
 
 427. per Lord Chief Conimii'.sioner. (m) Graham i-. M'Lauchlan. 1853, 15 D.. 889. 
 
 n 2
 
 52 VARIANCE BETWEEN THE ALLEGATION § 52- 
 
 obtaiiiing a verdict, it must not only be proved at the trial, but 
 must be covered by the issue.^ 
 
 1 Wliere the pursuer's avermeuts disclose a case of privilege, malice must be averred 
 aud put in issue. But where, in an action of damages for slander, the pursuer's aver- 
 ments do not disclose a case of privilege, and wliere therefore he does not take an issue of 
 malice, and where the evidence discloses that the defender was in a privileged position, it 
 would rather appear that the pursuer can maintain his case by proof of malice, though it be 
 neither expressly covered by his issue nor averred in his record. The principle seems to 
 be somewliat of this kind : — A pursuer, in an action for defamation, cannot get a verdict 
 unless the defamation be held malicious, either by presumption of law, or as the con- 
 clusion from evidence. But malice is always presumed where no privilege is dis- 
 closed ; disclosure of privilege rebuts the presumption of malice and shifts the onus ; 
 but where the privilege is disclosed, not on the pursuer's averments, but during the 
 trial, it would seem that the pursuer can support by evidence the presumption with 
 which he started, and satisfy the onus prohandi which the disclosure of malice has 
 thrown on him; Fenton v. Currie, 1843, 5 D., 707— Dunbar v. Stoddart, 1849, 11 D., 
 587 — Graham v. M'Laughlan, ut supra, per Lords Justice-Clerk Hope and Wood. But 
 see Dallas v. Mann. 1853, 15 D., 74G, in which, in an action of damages for the defender 
 having ■mongfuUy lodged information with a procurator iiscal that the pursuer had 
 been guilty of theft, it was held that an averment of want of probable cause was es- 
 sential to the pursuer's action, and the Court refused to allow an averment to that 
 effect to be added on revisal, but dismissed the action as irrelevant. See also Cameron 
 V. Hamilton, 1856, 18 D., 423, and Watson v. Burnet, 1862, 24 D., 494, in which latter 
 case an action of damages for defamation, brought by a servant against her mistress, 
 was dismissed as irrelevant for want of an averment of malice, the Court refusing to al- 
 low the pursuer to add the averment. 
 
 The following cases, lately decided, afford additional illustrations of the principle 
 that only the case averred can be proved. In defence to an action of damages for hav- 
 ing wrongfully given the pursuer into custody of a policeman, the defender set forth on 
 record that the pursuer had assaulted him ; but at the trial he endeavoured to prove 
 that the pursuer had assaulted two ladies in his, the defender's, society. It was held 
 that his record did not cover that defence; Smith v. Green, 1854, 16 D., 429. Where 
 an heritable subject was wrongly described in a summons and condescendence the Court 
 refused to allow an issue in regard to it, " as described in the schedule appended," 
 in which schedule the subject was described correctly ; Messer v. Simson, 1857, 19 D., 
 664. In an action for payment for work done, brought on the ground of employment, 
 the Court refused an issue, whether the defender " apjiroved of and adopted " the work ; 
 but allowed an issue, whether the work was executed on the employment of the defen- 
 der; Neilson v. Ritchie, 1861, 23 D., 1300. So in an action by the representatives of 
 a solicitor for a business account prescribed, the defender deponed on reference that he 
 employed the agent in an action, but on condition that he was to be paid for his ser- 
 vices only if the action was successful ; the Court held that the oath was negative, be- 
 cause the contract it admitted was not the contract libelled ; Knox v. M'Caul, 1861, 24 
 D., 16. In the case of Trodden v. Sweetman, the question whether a case somewhat dif- 
 ferent from that alleged might be proved, occurred in rather unusual circumstances. The 
 action was for the price of potatoes, averred by the pursuer to have been sold at £5, 5s. per 
 ton, and the defender admitted the purchase, but alleged that the pirice was £4, 5s. per ton. 
 The pursuer proposed as an issue, whether he had sold and delivered to the defender 40 
 tons of potatoes, and whether the defender was owing him £205 (£5 having been paid to 
 account), his object being, that if he failed to prove a sale at £5, 5s., he might still get a
 
 § .03. AND THE P1U>()F. 53 
 
 § 53. A variance between the reason or ground of action lil)elleJ 
 and that proved may be fatal, although the contract and facts are 
 correctly set forth. Tims, where a bill or assignation is challenged 
 on the ground of non-onerosity, effect will not be given to the oath 
 on reference of the holder or assignee admitting want of bona 
 Jides (w). And in an action of reduction by a tenant of his lease, 
 the only ground of action being that the defender had fraudulently 
 misrejjresentcd the extent of the farm, a case of error in essentialihus 
 as to the extent will be inellectual (o). So where a party raised an 
 action for repayment of a certain sum, on the ground of the de- 
 fender's refusal to execute venditions of shares of a ship in terms 
 of a contract between them, and where the defender offered to exe- 
 cute the requisite deeds, the pursuer was not allowed to demand 
 the money on the ground of the contract being null under the Ke- 
 gistry Acts {p). On the same principle, where an action was raised 
 against creditors on a sequestrated estate, on the ground that cer- 
 tain acts inferring their liability were Avithin the powers of the 
 trustee, it was held incompetent to make out the case, in respect of 
 acts alleged to have been beyond his powers (r). But in a case of 
 facility and impetration it was held that the issue, whether the 
 grantor of certain writings and securities was " weak and facile and 
 easily imposed upon," would cover a case of helplessness and de- 
 pendence of old age, with its incapacity to resist violence or intimi- 
 
 (n) Brown v. Moucur, 1837, 15 S., 1230— Megget v. Brown, 1827, 5 S., 343. 
 
 (o) Balmcr v Hogarth, 1830, 8 S., 715, infra, § 67. See also Peacock v. Glen, 1821, 
 I S., 168. (/>) Barr v. Bruce, 1846, 9 D., 222. (r) Kirldand v. Cadcll. 
 
 6th July 1839, F.C. 
 
 verdict for the market price of the potatoes, or at least for their price at the rate ad- 
 mitted by the defender. But the Court held that the pursuer was bound to put in issue 
 whether he had sold the potatoes at £5, 5s. per ton, and whether the defender was 
 owing £205. On trial of this issue, the jury found for the defender, and added to tlicir 
 verdict a finding that the potatoes were sold at £4, 5s. per ton, and that that price wft.<» 
 stated in the pursuer's letter of offer, by mistake, for £5, Ss. The Court, however, on 
 the motion of the pursuer, in absence of the defender, who was a foreigner, and who 
 failed to sist a mandatory (his former mandatory having become bankrupt), decerned 
 against the defender for £170, being the price of the potatoes at £4, 5s. But it was re- 
 marked on tlie bench, that tJie pursuer's motion would have been considered aa raising 
 a very difficult and important qutstion, liad the defender appeared to resist it ; Trodden 
 V. Sweetman, 1862. 24 1>., tilX) and 1360. It would rather seem that in this case the 
 pursuer got in judgment wliat he was not allowed to put in issue. 
 
 Where, in an action against directors of a bank, the pursuers on record rested their 
 action on the joint delinquency of the defenders, they were held not entitled to an is.'^ue 
 cliarging against any one of the defenders an individual and several ilelict, in which it 
 was not said that any of the other defenders were pnrtieipnnt ; Western Hank of Scot- 
 land r. Bairds. 1862, 24 D.. 859.
 
 54 VAKIANCE BETWEEN THE ALLEGATION § 58- 
 
 datiou, and that sucli incapacity would l)e sufficient without prov- 
 ing weak or defective intellect (s). 
 
 § 54. An error in the cliaracter in which the pursuer sues will 
 be fatal, if it goes to the essence of the case, as where he claimed 
 the balance due to him as overseer of a certain building, and it ap- 
 peared from the evidence that he had been contractor (t). The 
 same rule appHes to the character in wliich the defender is sued ; 
 so that an action against a party as " owner or part owner" of a 
 ship, will not sustain a claim for the same sums on account of his 
 administration and management of the vessel (w) ; and a summons 
 laid on tlie passive title under a charge to enter heir will not cover 
 a liability oii the ground of gestio pro haerede (x). 
 
 § 55. Although it may be highly probable that the contract or 
 slander averred is the same as that proved, yet a variance between 
 them in a matter of essential description will be fatal ; because the 
 other party having come prepared to meet a certain defined case, 
 he might be surprised and seriously prejudiced, if a case materially 
 different in description were allowed to be proved against him. 
 Accordingly, under an issue wdiether certain false play at cards 
 took place in a certain person's house in Great King Street, proof 
 of such play in his house in Melville Street was excluded (y). In 
 one case where a slander was averred as having been uttered on 
 the Pier of Leith, but was proved not to have been uttered on the 
 pier commonly known by that name, but on the custom-house pier 
 or shp, the pursuer's counsel gave up that part of his case. But 
 the presiding judge observed that, if it had been insisted in, he 
 would have left it to the jury to say wdiether in common accepta- 
 tion the general term " Leith Pier" comprehended the pier or slip 
 in question (z). A variance on this head, however, will only be 
 fatal where the locus is essential to the description of the subject 
 of the action, as where from the nature of the case it might prevent 
 the defender from proving an ahbi. The locus contractus is gener- 
 ally immaterial, unless where a question of jurisdiction is involved. 
 
 § 56. Mis-description in the date may be fatal ; as where the 
 issue was whether the defender lodged a slanderous paper in process 
 on or about I8th November 1828, but the paper put in evidence 
 was dated 18th February 1828 (a). And a summons of consti- 
 
 (s) Cairns v. Marianski, 1850, 12 D., 1286. (0 Holcombe v. Stewart, 1842, 
 
 4 D., 1316. See also Pollock t-. Mather, 1828, 7 S., 675— Shaivl Pr.. 217. 
 
 (u) Dempster & Co. v. Dryhurgh, 1837, 16 S., 109. (.r) Ferguson v. M'Ga- 
 
 chan, 1829, 7 S., 580. (?/) Paterson v. Shaw, 1880, 5 Mur., 281. (z) Forhes 
 
 V. Kirk, 1842, 4 D., 1177. (a) Cullen 7j. Ewing, 1832, 10 S., 497, 14S.
 
 § 57. AND THK rKOoF. ^■».') 
 
 tution on a bill duscribod as of tbu Uth of tlic muutb, was held not 
 to cover decree for payment of a bill dated the 19th (b). In such 
 cases the date is essential to the identification of the subject of the 
 action, since, if errors in it were overlooked, the other jtarty might 
 be materially prejudiced in his defence, and would not have the full 
 benefit of the decree as res Judicata. When such conseiiuences 
 would nnt ensue, errors on this head will be overlooked, as where a 
 summons for the aliment of a bastard child stated the birth to have 
 been on 3d February, but the pursuer in her oath in supplement 
 deponed that it happened on ?.d January (c). So in an action for 
 repayment of money as having been ailvanced on a certain day, 
 where the pursuer succeeded on a pro(»f, and the defender there- 
 upon referred the case to his oatli, tlie pursuer got decree, although 
 he deponed that the sum had been advanced not on the day libelled, 
 but at different times and in several sums (d). Here, however, the 
 pursuer was in the favourable position of having already proved his 
 case as laid ; and he was therefore entitled to decree, unless his 
 deposition sliewed that he was in the wrong.^ 
 
 Where a summons was laid on a bill as drawn by the pursuer, 
 it was held incompetent to proceed with the action as for a bill in 
 which his name had been written by another person for him by 
 procuration, and which he had afterwards adopted (c). 
 
 '§ 57. A verdict by which only a part of the issue or libel is 
 found proved, is good as to that part, unless the omission alters the 
 nature of the case. And, on the other hand, wliurc the verdict 
 finds more than the issue covers, it will be good to the smaller ex- 
 tent, provided the variance is only in extent or degree, not in kind. 
 For example, where a summons claimed a right of way as having 
 been acquired by the inhabitants of certain towns and places in the 
 neigbourhood, a verdict fhidiiig a public right of way was effec- 
 tual (/).3 The English law on this point is stated by Mr Star- 
 
 (6) Barclay v. Alcxaudcr, 1846, 8 D.. 549. There was also a mis-description in libel- 
 ling on the partial payments of the contents of the bill. See also Freebairn v. Dal- 
 rymplc, 182'J, 7 S., 47G. (c) Hutchison v. Thomas, 1828, 6 S., 1130. 
 
 (rf) JriKmnell r. Kankcn, 1830, 8 S., 815. (e) Muir v. BraiJwood, 1831, 10 
 
 S.. 83— Jackson r. Williamson, 1825, 4 S., 292. (/) Rogers v. Harvie, 1829, 7 
 
 S., 287— M'Gliio v. M'Kinly, 185(t. 12 D., 442. But see E. of Morton v. Stewart,. 1813, 
 1 Dow, 91. 
 
 2 In an action for slander the pursuer was allowed, after the record was closed, to 
 correct an frroneons statement of the date of tho alleged slander ; Bayne v. Macgregor, 
 1862, 24 D., n26~supra, J 45, note 8. 
 
 ^ The piirsuers of a summons tn have the defenders ori'ciinod to remove oK«tructions
 
 56 VARIANCE BETWEEN THE ALLEGATION § 57- 
 
 kie ((/) and Mr Greenleaf (h) in the following terms — There is a 
 material distinction between variance ^Yhich arises from redundan- 
 cy in the allegation and that which arises from redundancy in the 
 proof. In the former case, a variance hetAvccn the allegations and 
 the proof will he fatal, ii' the redundant allegations are descriptive 
 of that which is essential. But in the latter case redundancy can- 
 not vitiate merely because more is proved than is alleged, unless 
 the matter superfluously proved goes to contradict some essential 
 part of the allegation. Thus if the allegation were that, in consi- 
 deration of £100, the defendant promised to go to Eome, and also 
 to deliver a certain horse to the plaintiff, and if the plaintilf should 
 fail in proving the latter branch of the promise, the variance would 
 be fatal, although he sought to recover for the breach of the former 
 only, and the latter allegation was unnecessary. Eut if he alleged 
 only the former part of the promise, proof of the latter along with 
 it would be immaterial. In the first case, he has described an un- 
 dertaking which he has not proved ; l)ut in the latter he has merely 
 alleged one promise, and proved that and also another. But where 
 the subject is entire, as, for example, the consideration of a con- 
 tract, a variance in the proof shews the allegation to be defective, 
 and is therefore material. Thus, if it were alleged that the defen- 
 dant promised to pay £100 in consideration of the plaintilf's going 
 to Kome and also delivering a horse to the defendant, an omission 
 to prove the whole consideration alleged would be fatal. And if 
 the consideration had been alleged to consist of the going to Eome 
 only, yet if the agreement to deliver the horse were also proved, as 
 forming part of the consideration, it would be equally fatal, the en- 
 tire thing alleged and the entire thing proved not being identical. 
 
 § 58. Cases of variance between the libel and verdict are dealt 
 with strictly in criminal cases ; and for this obvious reason, that 
 penal consequences ought only to follow on a verdict which finds 
 the prisoner guilty of the specific crime charged against him. The 
 prisoner will tlK;refore be assoilzied, if he is found guilty not of the 
 offence libelled, l)ut of one different, although analogous. This is 
 the case where a verdict of guilty of reset is returned in a charge 
 of theft, and where the prisoner accused of rape is found guilty of 
 
 (ff) 1 Starkie, 460. (A) 1 GreenL, 89. 
 
 from a road of which the pursuers and their predecessors had, from time immemorial, 
 " free use, and over which tliey have the right and servitude of road," were held to have 
 failed in the proof of their case, although they established a public righf of way along 
 the road; Thomson v. Murdoch, 1802, 24 I)., 075.
 
 § GO. AND THE PROOF. 57 
 
 assault witli intent to ravish {{). For the same reason the prose- 
 cutor in a charge of moLLing and rioting may not prove that one 
 of tlie prisoners forced a person to take an unlawful oath, as that is 
 not one of the ordinary acts of a mob (j). So a verdict of guilty 
 of robbery will not meet a charge of theft, and vicn verm (Jc). And 
 a conviction of a specific crime of murder or wilful iire-raising is 
 incompetent in a charge of conspiracy of workmen to keep up 
 wages by means of these crimes (l). 
 
 § 59. But a verdict which finds an offence only lower in degree 
 than the one libelled, without being specifically different, is good 
 for the smaller crime. On this ground a verdict of culpable homi- 
 cide may be competently returned under an indictment for murder, 
 because it finds homicide without the malice which goes to consti- 
 tute the capital crime (m). Mr Alison doubts whether a verdict 
 of theft would not be good in a charge of stouthrief, which is mas- 
 terful theft («). But it is difficult to reconcile this view with the 
 principle that robbery (which, according to Baron Hume (o), is the 
 modern name of stouthrief) is specifically different from theft ( p). 
 Where there is a main charge coupled with an aggravation, the jury 
 may of course find the former proved and negative the latter. Mr 
 Alison (q), however, thinks that such a verdict is not good when 
 the aggravated offence is laid specifically, e.g., " assault with intent 
 to ravish." This question is not likely to arise, as the practice is to 
 charge the main offence independently, with the aggravation added 
 to it thus, — " assault, especially when committed with intent to 
 ravish." In some cases a verdict finding only part of the charge 
 proved is equivalent to one of acquittal ; as, where forgery and 
 uttering are libelled, but the verdict only finds the forgery, which 
 is not a point of dittay without the uttering (7-). On the same 
 principle, a party t'hargod with having used a measure not autho- 
 rised by the Weights and Measures Act, was assoilzied under a 
 verdict which only found that he had the measure in his posses- 
 sion (s). 
 
 § 60. A verdict finding tlie offence as having been committed 
 at a different time or place from those libelled is bad ; because these 
 are essential to the description of the crime, and a variance in them 
 
 (f) Hume, 449, 2 Al., r,45. (./) Cairns, 1837, 1 Sw., 507. 
 
 {k) Wallace, 1821, Rh. Or., 30—1 Al.. 227. (/) Ihintor^ 1838, 2 S\v., 1. 
 
 (m) 2 Humo, 186—2 Al., 282, 045. See Horn. 1824. Rli. Or., 114. (n) 1 Al.. 228. 
 
 (o) 1 Hume, 104. {p) Supra, {k). (9) 2 Al., 288. fi46. 
 
 (r) Edwardis 1827. Sym.\ 277, .ind Appx.. 47. (*) Allan r, Baird, 1812. 2 
 
 Broun, 204.
 
 58 VARIANCE BETWEEN THE ALLEGATION § 60- 
 
 luav have deprived the panel of his defence of an alibi (t). This 
 rule was applied somewhat strictly to the case of an assault charged 
 as committed in a house occupied by Jane Riddell or Turnbull, but 
 which was proved to have been occupied not by her, but by her son 
 George Turnbull (w). In another case, where the prisoner was 
 charged with having stolen a thimble from a lockfast chest of 
 drawers, it was held a fatal variance that the proof shewed it was 
 from a box on the top of tlie chest (x). But a slight variance, 
 which could not have prejudiced the prisoner in his defence, will 
 not be fatal ; as where a rape was cliarged as having been commit- 
 ted at or near the wall whicli " forms the west boundary" of a cer- 
 tain bleaching green, and it turned out that the wall was the south 
 boundary (y).^ 
 
 § 61. Slight differences between the description and the proof 
 of the subject of the crime have been held fatal. In a charge of 
 rape on Christian Urquhart, " daughter of, and then and now or 
 lately residing wdth Alexander Urquhart, labourer at Knockie, in 
 the parish of Turiff and county of Aberdeen," the proof established 
 that, at the time libelled, she was living with another person ; and 
 the panel was acquitted, although there was no doubt of the iden- 
 tity (2). And in a charge of murdering a child, "daughter of Marion 
 
 (f) 2 Hume, 207. On this account, when the time or place of the offence cannot be 
 precisely fixed, the prosecutor is allowed to add to his usual description the words " or 
 at some other time (or place) to the prosecutor unknown ;" 2 Hume, 215. But if tlie evi- 
 dence shews that he has done this unwarrantably, the Court will probably interfere and 
 stop the trial ; see GiUies, 1831, Bell's Notes, 107, 198— AValker, 18S8, ibid., 199. 
 
 (m) Cairns, 1837, 1 Sw., 597. (x) Gardner, 1837, 1 Sw., 548. This decision 
 
 may be questioned. {y) Henderson, 1836, 1 Sw., 316. The subject of this sec- 
 
 tion is fully treated in 2 Hume, 207—2 Al., 257— Bell's Notes, 207. 
 
 (z) Murray, 1826, 2 Hume, 197, note— 2 Al., 285. 
 
 * A panel was charged with liaving committed an offence in Oban, in the parish of 
 Oban and county of Argyle. There was no parish of Oban, but the Lord Justice-Clerk 
 (Boyle) allowed the prosecutor to amend the indictment by striking out the words "in the 
 parish of Oban ;" Lord Advocate v. M'Intyre, referred to in Maxwell v. Black and Morri- 
 son, 1860, 3 Irvine, 592, in which, where a panel was convicted in the Sheriff-court on a 
 cliarge of an offence, said to have been committed in his own house in the parish of 
 Auchtermuchty in Fife, the conviction was quashed in the High Court on admission 
 that the panel's house was in the neighbouring parish of CoUessie. This case was held 
 to be distinguished from that of M'Intyre, because in the case of Maxwell there was a 
 false averment about the locus of the offence, whereas in the case of M'Intyre it was not 
 averred that the offence had taken place in any existing geographical area different 
 from the true locus. The Lord Justice-Clerk (Inglis) laid it down as a general rule 
 that if in an indictment the parish be stated incorrectly, tlie error will be fatal to tho 
 indictment ; Maxwell v. Black and Morrison.
 
 §01. AND THE FKUOF. 59 
 
 Hepburn," it was proved that the mother (wliose name was Hep- 
 burn), ]iad been l)aptised " Elspetli Menuy," after her motlier, wliose 
 last name was " Memiy," that she had dropt the name " Elspeth," 
 had given her name as "Menny" when examined before the She- 
 riff, and only wliile six months in one service had been called 
 "Marion." This was held a fatal variance, although " Money" is 
 the common Scotch abbreviation for " Marion," and there was no 
 doubt that constahat de persona («). A cluirge of assaulting a per- 
 son named M'Tiggan was n(jt allowed to be proved by evidence of 
 an assault on one M'Figgan (6), although otherwise the descriptions 
 agreed. But if the injured party is riglitly named, an error in his 
 designation will be overlooked, if it does not affect his identifica- 
 tion ; as where he was descril)ed as a merchant, and it appeared 
 that he was only a merchant's clerk (c), and where he was described 
 as a lamp-lighter instead of a bill-sticker (d). In one case, where 
 the person alleged to have been murdered was designed as the 
 daughter of two persons correctly named, but the father was de- 
 scribed as a Wright instead of a tailor, the charge was abandoned (e). 
 It appears, however, that if the prosecutor had pressed the case, 
 the Court would have directed the jury to convict (/). According- 
 ly in a charge of theft of a black and white plaid, which was proved 
 to be blue and white, the variance was held immaterial (g). 
 A similar decision was pronounced where, in a charge of forgery 
 and uttering, the uttering was libelled as made to Galloway, the 
 agent at Airdrie for the National Bunk, and the proof showed that 
 the document had been given to Somerville, and by him to Gallo- 
 way, who was in the bank at the time (h).° 
 
 Farther illustrations on these points will be found in the works 
 of Baron Hume, Mr Burnett, and Mr Alison. It must be observed, 
 however, that the last named author states the law too strictly as 
 
 (a) Ferguson, 1831, Sh. Cr., 239. (6) Muir, 1821, Sli. Cr., 55. 
 
 (c) M'Avoy, 1837, 1 Sw., 456. (rf) M'Gee, 1837, 1 Sw., 425. 
 
 (e) Ilaunay. 1800, 2 Ilunic, 197. (/) Per Lord Meadowbank in ]\I'Gee, sttpra. 
 
 (f/) Hunry v. Young, 1846, Arid., 105. (A) Pender, 1836. 1 Sw., 25. 
 
 •'• A iirisoncr charged with the murder of " Ale.xander Davidson, sawyer at Dallu- 
 lich, in the parish of Edinkillio and shire of Elgin," was held entitled to a verdict of 
 not guilty, on jiroof that the murdered person, Alexander Davidson, sawyer, resided at 
 Dallulioh. in the jiarish of Ardclach and sliire o{ Nairne; Lord Advocate v. M'Pherson, 
 1824 ; explaineil hy tlie Lord .TusticeClork (Inglis) in Maxwell i.-. Black and Morrison, 
 I860, 3 Irv., 5'.t2. Tlio ni^tice of the case of M'Pherson in -Mison's Practice, p. 262, is 
 erroneous.
 
 (30 VAEIANCE BETWEEN THE ALLEGATION §61- 
 
 to variauce between the libel and the proof, both in regard to the 
 corpus delicti (i) and locus delicti (A-). 
 
 § 62. Where there is clearly a variance between a party's line 
 of proof and his record, the Conrt will interfere during the trial ; 
 but if it is doubtful, the case will be allowed to go to the jury, un- 
 der a direction as to the variance (l). For example, where an as- 
 sault by firing a loaded gun w^as laid as at a wood called Straiton 
 Dean, and some of the witnesses called the place Struckon Dean, 
 the Court held that if the act were proved to have been committed 
 at the latter place, the objection would have been fatal, but that 
 the evidence was contradictory, and that it lay with the jury to de- 
 cide the matter (m). 
 
 § 63. When the presiding judge is doubtful whether there is a 
 fatal variance between the evidence and the issue, especially in civil 
 cases, he frequently directs the jury to return a special verdict, 
 finding the facts which they consider to have been proved : and 
 the Court have thereupon to determine whether the verdict affirms 
 or negatives the issue. It is also competent for the presiding 
 judges in civil cases in the Court of Session " to order and direct 
 any facts not falling under the issues, but which shall appear in 
 evidence, and which they shall deem material to the merits of the 
 case or important to the decision of the law, to be found by the 
 jury, and to be indorsed on the issue or issues, or on a paper or 
 parchment to be attached to the issue and issues, and certified under 
 the hands of the judge who tries the cause, and returned with the 
 verdict and issues to the Division of the Court of Session or the 
 Lord Ordinary by whom the case was sent to the jury " (n). But 
 this power has been very seldom exercised (o).^ 
 
 § 64. There are important differences between the Scotch and 
 English law in questions of variance. In criminal cases in Eng- 
 land, it is held that " if the charge be of a felonious assault with a 
 staff, and the proof be of such an assault with a stone ; or if a 
 wound alleged to be with a sword be proved to be inflicted with an 
 axe ; or if a pistol be stated to have been loaded with a bullet, and 
 it turns out to have been loaded with some other destructive ma- 
 
 (t) See per Lord Justice-Clerk in Henry i'. Young, s?//;ra, commenting on 2 AL, 297. 
 
 (k) Per Lord MoncrielF in Patcrson v. Ritchie, 1848, J. Shaw, 1, commenting on 2 
 AL, 262. (l) See Forbes v. Kirk, 1842, 4 D., 1177, supra, § 65. (m) Corbet, 
 
 1828, Syme, 339. (w) 59 Geo. Ill, c. 35, 2 9—11 Geo. lY, and 1 Will. IV, 
 
 c. 69^ ? 1- (^) Compare Hunter v. Carson, 1822, 3 Mur., 234, with M. Tweeddale 
 
 r. Kpt. 1821, 2 Mar., 672, and Darling v. Grieve, 1822, 3 Mur., 94.6 
 
 « Troddon »•. Swpr-fmnn, 1802. 24 D.. 13ro. .^nprn. ? 52. note 1.
 
 § G5. AND THE PROOF. '31 
 
 terial ; or if tlie death averred to have been eaubed by one kind ot 
 poison be shewn to have been occasioned by another, tlie charge is 
 substantially proved, and there is no variance " {jj). But in our 
 practice, if the indictment so far mis-described the injury as in most 
 of the cases referred to, without adding " or with some other instru- 
 ment," or poison, &c., " to the prosecutor unknowni," there can be 
 little doubt that tlic Court would interfere. In civil cases in Eng- 
 land, almost every disagreement between the allegation and the 
 proof, except in matters clearly unimportant, used formerly to be 
 fatal (/•). But in consequence of the delay and injustice arising 
 from this practice two statutes were passed, under wliich it is com- 
 petent for the Court or presiding judge, even where there is a mate- 
 rial variance, to cause the record to be amended on certain condi- 
 tions as to costs (6'). Another difference between the practice in 
 the two countries is, that in England precise proof may in many 
 instances be rendered unnecessary by the form of allegation shew- 
 ing that the party did not mean to bind himself to it. In such 
 cases sums, magnitudes and the like are averred under a scilicet or 
 videlicet, — e.g., where a plaintiff declared that the defendant is in- 
 debted to him in a certain sum, to-wit, £26, being the unpaid ba- 
 lance of a larger sum {t). 
 
 CHAPTER IV.— OF THE RULE THAT THE SUBSTANCE OF THE ISSUE 
 OR LIBEL MUST BE PROVED. 
 
 § 65. The substance of the issue, or of the libcd where there is 
 no issue, must be proved ; otherwise the verdict will be held as for 
 the defender. But it is enough that the issue or libel be proved 
 substantially ; and it is not necessary that immaterial facts which 
 it embraces be made out. An ambiguous verdict is equivalent to 
 one for the defender ; because it lies with the pursuer to prove his 
 case, and to get the jury to find that he has done so {u). Accord- 
 ingly, where two or more criminal charges arc laid alternatively, 
 and a general verdict of guilty is returned, as it cannot be discover- 
 
 {p) Taylor, 184— R. v. Oxfonl, 1840, 9 C. and P., 525, 548— R. v. Martin, 1832, 
 5 C. and P., 128. (r) Taylor, 141. (») 9 Geo. IV, c. 15—3 and 4 
 
 Will. IV, c. 42, I 23. (0 Seo 1 Starkie Ev., 454— Taylor, 561— Cooper v. BUck, 
 
 1842, 2 Ad. and Ell., 915, per Patteaon, J. («<) Adam Ju. Tr., 235—2 Hume. 
 
 442. et seq.
 
 G2 PROVING THE SUBSTANCE OF THE ISSUE. § 65- 
 
 ed which of the crimes the jury meant to find proved, tlie panel 
 must be acquitted (y).i But in civil cases the Court allow a new 
 trial wdiere an amhiguuus verdict is returned {iv).^ Tlic Court will 
 not listen to an objection of tliis nature, wliicli is based ou a cap- 
 tious or hypercritical construction ; but wall sustain the verdict, if 
 its meaning is clear according ti> a natin-al and common sense read- 
 ing, although it should not be framed with technical precision or 
 strict logical accuracy (x).^ On this account, the verdict of "not 
 proven" in a civil case is eijuivaleiit to a hnding for the defender, 
 although properly such verdicts are confined to criminal cases (y)^ 
 It was mentioned in a previous paragraph, that an and)iguous ver- 
 dict may be amended from the notes of tlie judge who tried the 
 case (z); but this principle is of too recent introduction to liave yet 
 been expiscated by decisions.^ WJicn the jury have found a ver- 
 dict o]i all the material issues, the presiding judge may discharge 
 them froni making a return on issues which he considers imma- 
 terial {((). 
 
 § 6G. What is the substance of the issue depends on the nature 
 and circumstances of the individual case. The foUomng decisions 
 will illustrate the vicAvs of the Court on the point. If a party libels 
 unnecessarily that a deed is onerous, he is not bound to prove oner- 
 
 (v) Watt, 1824, Sli. Or., 128— M'Lachlan v. Baird, 1825, 2 Hume, 442— Sinclair, 
 1825, Sh. Cr., 138. But see lleeves, 1843, J Broun, 612. In Brodie v. Johnston, 1845, 
 2 Broun, 659, where a verdict of guilty of stealing " a part of the articles " was return- 
 ed in a charge of stealing several articles enumerated, the Court held tliat sentence 
 might pass on tlie verdict. But in Allan v. Baird, 1844, 2 Broun, 294, a conviction and 
 sentence forfeiting " a tin measure," where two were found in possession of the panel, 
 and were both produced, was held ineffectual.! (w) As in Inglis v. Robertson, 
 
 1841, 4 1)., 342, 902.2 (x) Lawson v. North British Rail. Co., 1850, 12 D., 1250.3 
 
 (y) Walker v. Ritchie, 1830, 14 S., 1128— Morris v. Morgan, Nov. 1853, in pen- 
 denteA (z) 2 50. [a) In Clark v. Spence, 1825, 3 Mur., 472, 481, the 
 
 Lord Chief Commissioner observed that this might be done of consent. In the English 
 case of King v. Johnson, 1839, M'L. and Rob. Ap. Ca., 1, it was considered by the House 
 of Lords to be ijuite clear that consent of parties is not required. 
 
 1 Jones V. M'Ewan and Mitchell, 1853, 1 Irv., 334, and Kirkaldy, 1850, 1 Irv., 338, 
 note. 
 
 2 Morgan v. Morris, 1 858, 3 Macqueen, 323. 
 
 3 Lenaghan v. Monkland and Iron Steel Co., 1857. 19 D., 975. 
 
 4 Not proven is a competent verdict for the defender in a civil cause ; Morgan v. 
 Morris, 1855, 2 Macqueen, 842. 
 
 5 The law appears to be, that if the verdict be rightly returned by the jury, an error 
 in writing out the verdict may be amended ; but if a jury return an ambiguous verdict, 
 and if that verdict be received by the judge, tlio only remedy is a new trial ; Morgan v. 
 Morris, ut anpra. See ante, § 50, note. C.
 
 § 6G. PROVING THE SUBSTANCE OF THE ISSUE. 63 
 
 osity (b). In a question of usaj^t- of trade a party averring invari- 
 able custom succeeded, althougli lie proved a custom usual but not 
 invariable (c). Under an issue whether a transaction was entered 
 into without value or consideration, tJie party maintaining the con- 
 tract will succeed if he proves a fair onerous consideration, altliough 
 it may not be full and adequate value (d). The case of Cairns v. 
 Marianski, before noticed (e), ilhistrates the application of the rule 
 to an issue of facihty and iinpetration. Where damages were 
 claimed under an issue whctlier the pursuer's lands were inundated 
 in conse(iuonce of tlie insufliciency or improper construction of a 
 bridge, a verdict finding tliat "the l»ridge was insufficient, and as- 
 sessing the damages at £200 " was held good, although it was ob- 
 jected that it did not deduce tlie damage from the insufficiency as 
 an effect from a cause (/). Under an issue whetlier tlie defender 
 had induced the pursuer to purchase bank stock from lain by false 
 and fraudulent concealment " as to the credit and solvency of the 
 bank," the pursuer is not bound to prove that the bank was actually 
 insolvejit at the date of the purchase (g). In such a case, not only 
 must it be shewn that the false statement was made, but there 
 must be proof, or ground for presuming, that the other party relied 
 on it as an inducemeiit to the contract (h). In an action of 
 damages for Avrongous imprisonment, tlie pursuer must prove injury 
 or damage, and may not staiid merely on the irregularity ('/).° Not 
 only sexual connection, but the use of seductive arts on the part of 
 the defender, must be prt>ved in an action of damages for seduc- 
 tion (A-). Where the knowledge of a party himself is in issue, the 
 
 (6) Hamiltou v. M'Ghie, 1828, 7 S., 140— see next note. (c) Biirbidge v. 
 
 Sturroclr, 1832, 10 S., 520. In such cases the expense occasioned by the unnecessary 
 averment is laid on the party who made it. (d) Hastie & Co. v. Warden & Son, 
 
 1848, 11 D., 240— See also per Lord Cottenham in Stewart v. Stewart, 1842, 1 Bell's 
 Ap. Ca., 796, 81 C, affirming 11 S., 327. (e) Cairns v. Mariansld, 1850, 12 D., 
 
 1286 ; supra, § 50. (/) Lawson v. North British Kail. Co., 1850, 12 D., 1250. 
 
 ((/) Keith V. Smart, 1832, 10 S., 514. {/() M-Lellan v. Gibson, 1843, 6 D.. 
 
 1032. See also Burnes v. Pennell and Others, 1849, Bell's Ap. Ca., 541. 
 
 (t) Beattie v. M'Lellan, 1846, 8 D., 930— See also Clark v. Thomson, ISIG, 1 Mur., 
 187— Collins v. Hamilton, 1837, 15 S., 895. (*) Stewart v. Meuzies. 1837, 15 
 
 S., 1198. 
 
 6 The law hero stated seems open to question. Where in an action of damages for 
 wrongous imprisonment, the pursuer gut a verdict with nominal damages, he was held 
 entitled to expenses; Ross t-. JI'Vean, 1800, 22 D., 1144. " It is a \\Tong to any one 
 to use the diligence of the law against his estate witliout legal warrant, be the conse- 
 quences of that illegal act what they may ;" per Lord Justice-Clerk (Inglis) in Meikle 
 V. Snedden. 18G2. 24 D.. 723.
 
 64 PROVING THE SUBSTANCE OF THE ISSUE. § 66- 
 
 knowledge of his agent, although relevant evidence, is not full 
 
 proof (?)• 
 
 § 67. Fraud, wrongful intention, malice, and the like, are of 
 the substance of issues wliieli embrace them.'^ Accordingly, in an 
 action by a tenant against his landlord, the issue whether the de- 
 fender had made a "false and fraudulent" representation to the 
 pursuer as to the extent of the farm was held to be negatived by a 
 verdict finding that he- had done so " falsely but not fraudulent- 
 ly " (m).^ The defender was assoilzied where the issue was whether 
 a certain insurance " had been effected on a fraudulent over-valua- 
 tion of the machinery with the intention of destroying the same by 
 fire," and the jury found it had been effected on a fraudulent over- 
 valuation, but not with that intention (w). Here, however, the in- 
 surance company were obliged to take an issue in that form, because 
 they were attempting to reduce a decree-arbitral which had been 
 pronounced against them. If the action had been at the instance 
 of the insin-ed for payment of the loss, the issue would have been 
 entirely different (o). Under an issue whether tlie defender had 
 failed to advance all or any part of the sum of £1000, in terms of a 
 certain agreement, and whether he wrongfully retained all or any 
 part of certain bills, &c., to the loss and damage of the pursuer, a 
 verdict which found that the defender had failed to advance part 
 of the £1000, but which was silent as to the wrongful retention, 
 was held not to affirm the issue ; and a new trial was ordered (p). 
 Where one who had acted as executor for a certain person, was 
 
 {I) Balfour v. Lyle, 1832, 10 S., 853, 11 S., 90G. (m) Balmer v. Hogarth, 
 
 1830, 8 S., 715. The only ground of action was fraiid. If the facts found by the ver- 
 dict had been relevantly averred, they -would have sustained a decree. Accordingly 
 the judgment reserved to the pursuer to bring a new action. (n) Hercules Ins. 
 
 Co. V. Hunter, 1837, 14 S., 147 and 1187, 15 S., 800. (o) Per Lord Moncrieff 
 
 in 14 S., 1140, and per Lord. Mead owbank in 15 S., 802. (p) Inglis v. Robert- 
 
 son, 1841, 4 D., 902. 
 
 7 In actions of damages for slander in legal pleadings, it must be put in issue 
 whether the alleged libellous statements were inserted in the pleadings maliciously. 
 This is the settled general rule of practice, but if the pursuer can shew that the state- 
 ments are impertinent to the question raised by the pleadings, he may be entitled to a 
 verdict without proving malice ; Mackellar v. Duke of Sutherland, 1859, 21 D., 22G. 
 
 8 In answer to an issue whether the pursuer had been induced to purchase bank 
 stock by the false and fraudulent representations of the defenders, the jury returned a 
 verdict that the pursuer had been induced to purchase the shares by the false represen- 
 tations of the defenders, but that these representations were not fraudulent. The ver- 
 dict was held to be for the defenders, although the jury explained that they meant it as 
 a verdict for the pursuer ; Dobbie v. Johnston and Russell, 1861, 24 D., 1189.
 
 § 68. PROVING THE SUBSTANCE OF THE ISSUE. 65 
 
 called upon by the executor under a later will to account for his 
 intromissions, and the issue was whether the defender, knowing or 
 believing in the existence of the later deed, " wrongfully retained 
 possession of the deceased's cltccts," and the jury fuund that he had 
 acted " blaiiK-abl}' " in not connuunicating information which ho 
 had received regarding tlio existence of the later deed, the Court 
 held that the verdict fell short of the issue (r). The question has 
 been raised, whether under an issue of fraud it is necessary to prove 
 moral fraud (.s). It has been decided that under issues of facility, 
 fraud, and lesion, it was not held necessary that moral fraud, or 
 specific acts of contravention should be established, and that it is 
 enough if, looking to the circumstances of the gTanter, there w^re 
 used persuasions which he was not in a condition to resist (/). 
 
 § 68. The principle thus noticed, however, applies only where 
 the fraudulent or illegal nature of the act is left to the jury. If it 
 is a legal inference from the facts averred, the verdict will stand : 
 if it finds these facts to be proved, although it does not also find 
 the consequent fraud or crime. For example, where the issue was 
 whether the defender had fraudulently purchased certain heritable 
 propert}', knowing that it had been previously sold to another per- 
 son, and the jury returned a special verdict finding the facts in 
 issue, but without the word fraudulently, the Court held it to be 
 a verdict for the pursuer, because fraud w^as the necessary legal in- 
 ference from these facts, which constituted the crime of stellion- 
 ate (m).^° On the same principle, in ordinary cases of defamation 
 the pursuer is entitled to a verdict wdtli damages, if he proves that 
 the slander was uttered by the defender, although he does not shew 
 that it was either false or malicious, because these are presumed 
 from the uttering (v)}'^ But in privileged cases, where the pre- 
 sumption on these points is in favour of the defender, the pursuer 
 must prove the falsehood and malice (x), even where malice seems 
 
 (r) Clelaud v. Weir, 1848, 10 D., 924. But it was held that the accounting must 
 proceed in terms of the verdict. (s) Miller v. Geils, 1848, 10 D., 715. 
 
 (t) Cluuie V. Sterling, 1854, 17 D., 15. See also Smith v. Anderson. 1849, 9 D., 
 710.9 («) Foggo V. Craise, 1840, 2 D.. 1379.10 (v) AUardyce v. Robert- 
 
 son, 1830, 4 W. S., 118, per Lord AVynford— Ewing v. Cullen, 1833, G W. S., 678, per 
 tfunrf.— Craig v. JIarjoribank.-*, 1823, 3 Mur., 35— Sh. Dig., ii, 1200, and iii, 423.ii 
 
 (x) Marianski v. Henderson, 1841, 3 D., 1030— Adio v. Gowans, 1847, 9 D.,495— 
 M'Intosh V. Flowerdew, 1851, 13 D., 72G. See also cases in preceding note. 
 
 9 In a reduction on the grounds of facility, fraud, and circumvention, the pursuer 
 is bound to put in issue only fraud or circumvention ; Mann v. Smith, 1861, 23 D., 435. 
 
 10 Morrison v. Somer^-ille, 1860, 23 D., 232. 
 
 11 Mackellar r. Duke of Sutherland, 24 D., 1124. 
 
 E
 
 66 PROVING THE SUBSTANCE OF THE ISSUE. § 68- 
 
 to be inferable from the expressions tliemselves (y).^^ The same 
 principle is illustrated by the celebrated case of the King against 
 Woodfall ; where the charge was printing and publishing a sedi- 
 tious libel signed " Junius," and it was held that the verdict " guilty 
 of printing and publishing onli/," did not amount to a conviction, 
 because some of the jury might have meant not to find the whole 
 sense and meaning put on the innuendoes proved (z). 
 
 § 69. On the other hand, fraud or criminal intent is not essen- 
 tial to the verdict, unless it be essential to the cause. And in some 
 cases a verdict negativing a criminal intent will not be equivalent 
 to a verdict of acquittal, but will stand as a conviction of a minor 
 charge. Thus in a reduction of a bond of caution, where the issue 
 was whether the pursuer had been induced to subscribe the bond 
 " by undue concealment on the part of the defenders," the Court of 
 Session held that a deliberate and intentional withholding of facts 
 must be proved ; but the House of Lords reversed this judgment, 
 on the ground that the question involved was the concealment, and 
 that the motive or intention was wholly immaterial (a). A ques- 
 tion of this nature recently arose in an important criminal cause, 
 where the charge was sedition, by using at certain meetings lan- 
 guage " intended and calculated to excite popular disaffection, com- 
 motion, and violence and resistance to lawful authority," and the 
 prisoners were found guilty of sedition, in so far as they used lan- 
 guage " calculated to excite popular disaffection and resistance to 
 la^^ul authority." After a very full discussion, this was held a 
 good verdict of sedition, to which crime the intention libelled was 
 not essential, although, if it had also been found, it would have 
 
 (y) M'Neil, 1776, 5 Slip., 573— Allardyce v. Eobertson, stipra. (z) R. v. Wood- 
 
 fall, 1770, 5 Burr., 2661. So in an action in England for words (" j«<?- ^aroWcs ") where 
 the defendant pleaded not guilty, and the jury found " qicod locutus est verba," it was 
 held that this verdict was imperfect, and that the plaintiff could not have judgment ; 1 
 Siderfin, 234— Adam Ju. Tr., 232. See also Kennedy v. Allen, 1848, 10 D., 1293. 
 
 (a) Kail ton v. Mathews, 1844, 6 D., 536, reversed 3 Bell's Ap. Ca., 56, See also 
 Forbe.g v. Edinburgh Assur. Co., 1832, 10 S., 451. "With these cases compare Balmer 
 V. Hogart, supra, § 67 {m). 
 
 12 Proof of the general disposition of mind of a defender, at the time of the defama- 
 tion, or other act on which an action of damages may bo founded, may be sufBcient to 
 satisfy the onus on the pursuer to prove malice; M'Donald v. Ferguson, 1853, 15 D., 
 545. So in an action of damages for the defender having called the pursuer a thief, 
 where the defence was that the defender was acting in an official capacity and was mak- 
 ing inquiry about stolen money, the pursuer had to take an issue of malice, but it was 
 observed that proof that the defender, in calling the pursuer a thief, went beyond his offi- 
 cial duties, might be proof of malice ; Blackett v. Sang, 1854, 16 D., 989, and 26 J., 455.
 
 §72. I'HOVLXG Tin: SUBSTANCE OF THE ISSUE. 67 
 
 aggravated tliu oUcirl' (h). 'J'hc saiiiu piiiicij)lo is illustrated in 
 trials for murder, in which the jury may H(';;;itivo the murderous 
 intent and return an eliectual verdict oi" culpable homicide (c). 
 
 § 70. Upon the same principle, when a party is responsilde for 
 the actings of another, it is nut necessary for tin- jury to liiid tliat 
 he took part in them. Thus, under an issue whether the defender 
 " wrongously, illegally, and oppressively imprisoned the pursuer in 
 a certain safe or cell," &c., it was proved that the pursuer had been 
 ill-treated by certain soldiers to whose custody the defender had 
 committed him ; whereupon the jury found for the pursuer, on the 
 gTound of the defender's perfect knowledge at the time of the con- 
 finement, but " did not find " that he was present either when the 
 pursuer was put in or when he was taken out ; and they assessed 
 the damages accordingly. This was held a good verdict for the 
 pursuer, on the ground that the defender was responsible for the 
 persons who did the wrong (d). 
 
 § 71. Where a completed act is in issue, a verdict which only 
 finds that it was intended to be done is insufficient ; as, where in a 
 charge of murder or theft a verdict of guilty of intent to commit 
 the crime is returned. Nor is a verdict finding a one-sided inten- 
 tion enough when mutual intention is required by the issue. Thus 
 in a question of prescriptive right to harbour dues, where the issue 
 was whether the pursuers under a certain title had for the prescrip- 
 tive period levied the dues, the verdict that they had done so "in as- 
 sertion of their right," was hold to be for the defender, as the issue 
 meant, whether they had done so " in exercise," and not merely "in 
 assertion," of their right, and the judge had directed the attention 
 of the jury to the distinction (e). 
 
 § 72. In many cases, especially in actions of damages, the 
 question whether the substance of the issue is proved is important 
 only in determining the liability for expenses. In actions for de- 
 famation the pursuer is almost invariably held to have succeeded 
 and to be entitled to expenses, if he has got a verdict, although 
 only nominal damages (e.g., one shilling) are awarded; because 
 his object was to clear his character ; which he has done under 
 such a verdict (/). But the Court are not tied up absolutely as to 
 
 (6) Grant ami Others, 1848, J. Shaw, 02. The presiding jndgc called the attention 
 of the jury to the distinction they had drawn by leaving out the words " and intended ;" 
 and ascertained that they had done so purposely. (c) Supra, § 59. 
 
 (d) Ross V. M'Boan. 1845, 8 D., 250. (c) Mag. of Campbelton v. Galbreath, 
 
 1844, 7 D., 220, 255. (/) Gardner v. M'Kcnzic. 184C., 8 D.. 859— Lady Hamil- 
 
 ton V. Stevenson, 1822, 3 Mur., 80— Lane v. Matheson, 1841, 3 D., 434— Young v. Cleg- 
 
 b2
 
 t)8 PKOVING THE SUBSTANCE OF THE ISSl.E. § 72- 
 
 tliis rule, so ii3 to be deprived of all discretion in the matter (g). 
 Accordingly, in one case of defamation, where the defender justified 
 on the Veritas convicii, and the jury gave only nominal damages, 
 the Court refused expenses to the pursuer, apparently on the ground 
 that the jury meant to attach a stigma to her character (Ji). But 
 this decision is not of much weight, as the Inner House were di- 
 vided two to one, and the Lord Ordinary agreed with the minor- 
 ity.i3 
 
 § 73. In an action by an engineer for payment of his account, 
 where the defender took a counter issue of want of skill, and the 
 jury found for the pursuer, but assessed the amount at one-fourth 
 of what he claimed, the Court found the pursuer entitled to modi- 
 fied expenses ; and, in consideration of the injurious nature of the 
 defence, refused to make the modification proportional to the three- 
 fourths of the sum claimed, being the portion which the jury had 
 disallowed (/). On the other hand, in actions for reparation of pa- 
 trimonial loss, w^here the pursuer gets only nominal damages, he is 
 held to have failed, and not to be entitled to expenses {h). This, 
 generally holds even in actions of damages for assault ; which, al- 
 though involving injury to the feelings, are brought for recovery of 
 pecuniary compensation, and not in order to clear character (T). In 
 one case of invasion of personal liberty, a verdict for the pursuer 
 with only nominal damages carried expenses in his favour (w) ; 
 whereas in a similar case, a verdict finding that the defender (a 
 criminal ofiicer) was chargeable wdth gross dereliction of duty, but 
 not giving any damages against him, w^as held to entitle the de- 
 horn, 1832, 10 S., 248— M'Jntosh v. Flowerdew, 1851, 14 D., 133— Eae v. M'Lay, 1852, 
 15 D., 80 — Shand, 1028. ( y) Rae v. M'Lay, supra. It was here observed that, 
 
 iu determining whether there is ground for refusing expenses, the Court will be mainly 
 guided by the opinion of the judge who tried the case. [h) Mason v. Tait, 1851, 
 
 13 D., 1283. (0 Gunn v. M. BreadalLane, 1849, 12 D., 404. 
 
 {k) Patcrson v. Walker, 1849, 11 D., 1085. {I) Strachan v. Monro, 1845, 7 
 
 D., 993— Muckarsie v. Dickson, 1848, 11 U., 164— Ewing v. E. Mar, 1852, 14 D., 330. 
 
 (7») Cowan V. Camj^bell, 1833, 12 S., 221. This was a case of wrongous apprehen- 
 sion and imprisonment. 
 
 13 In Duncan v. Balbirnie, 18C0, 22 D., 934, where the jury returned a verdict for 
 the pursuer and assessed the damages at One Shilling, no expenses were given. But 
 in Balfour v. Wallace, 1853, 10 D., 110— Faulks v. Park, 1854, 17 D., 247— Arrol v. King, 
 18 D., 98 — a verdict for the pur.suer with nominal damages was held to carry expenses. 
 In Faulks v. Park there had been a tender of a sura larger than that found due. These 
 were all actions of damages for defamation. The general rule is, that a verdict for the 
 pursuer with nominal damages carries expenses ; but the rule is not absolute or inflex- 
 ible ; Arrol c. King, tupra — Duncan v. Balbirnie, tupra.
 
 § 74. provintt thk si:ijstancI': of tjik issue. 00 
 
 fender to expenses (?<). Exj)eiises would prol)ably be given in a 
 case of assault, where the nature of the attack and the status of the 
 parties shewed that the defender meant it as an insult (o)}* 
 
 In actions laid upon contract, it will depend on the circum- 
 stances of each case wdiich party is to be held as successful and en- 
 titled to expenses (p). 
 
 § 74. The general verdict of guilty in criminal cases means 
 guilty of all tlie charges as libelled (r), although they may be laid 
 as "the crimes libelled, or one or more of t]iem"(.s). Verdicts of 
 "guilty art and part," and "accessory art and part," are also good 
 verdicts of conviction (f). Baron Hume thinks that a verdict of 
 guilty not of the crime but of the pains of law is insufficient, as 
 these are not within the province of the jury ; but that a verdict 
 finding special fa<'ts which amount to the crime charged, and also 
 finding the panel liable to the pains of law, will be a good verdict, 
 as the Court may disregard tlio addition (u). 
 
 (n) Eoss V. M-Bean, 1845, 8 D., 250. The pursuer here had been improperly con- 
 fined iu a safe or cell. (o) See opinions of Court in Strachan v. Monro, and 
 Muckarsie v. Dickson, siqira. In such cases merely nominal damages might shew that 
 ilio jury did not take this view of the assault ; see Ewing v. E. Mar, supra. 
 
 (p) Cases in Sh. Digest, voce "Expenses," § 203, et seq. (r) 2 Hume, 442 — 
 
 2 Al., 644. (s) M'Haffie, 1827, Syme, App., 43—1827, Syme, 295. 
 
 {t) 2 Hume, 441—2 AL, 044. (ti) 2 Hume, 443. Baron Hume mentions 
 
 instances in which " guilty of the pains of law " has been sustained. 
 
 '* In an action for wrongous imprisonment, a pursuer, who got a verdict but with 
 nominal damages only, was held entitled to his expenses ; Ross v. M'Vean, 1860, 22 D., 
 1144. Where, in an action of damages for breach of promise of marriage, the jury 
 found for the pursuer and assessed the damages at twenty shillings, the pursuer had 
 expenses, la. Macfarlane i;. Lewis, 1858, 21 D., 107, an action of damages for injury to 
 property, where the jury asse.'^sed the damages at five shillings, tlio Court refused to 
 give expenses. See on the practice of the Court as to expenses when a pursuer is 
 found entitled to a sum much less than he demands; Edmond r. Main, 1854, 20 J., 
 442 — I'atersoii c. Wallace, 1855, 17 D.. '.t82— Braidwood v. Iluntor, 185G. 18 D.. 574.
 
 70 OF THE RVLE WHICH § 7;')- 
 
 TITLE IV. 
 
 OF THE RULE WHICH EEQUIRES THE BEST EVIDENCE. 
 
 CHAPTER I. — OF THE RULE GENERALLY. 
 
 § 75. In general a party must adduce the best attainable evi- 
 dence of the facts he means to prove («). This rule is founded on 
 the presumption, that one who tenders the less trust-worthy of two 
 kinds of proof within his reach, does so in order to produce an im- 
 pression which the better proof would not create ; for, if they would 
 lead to the same result, he would probably not select the less con- 
 vincing of them. The rule is also designed for preventing trials 
 from being burdened with unnecessary investigations into the au- 
 thenticity of secondary proofs ; by which the time of the judge and 
 jury would be wasted, and their attention might be diverted from 
 the real points in issue. The rule is thus directed to the specific 
 character, not to the strength or amount, of the proof. It excludes 
 evidence, the substitutional nature of which implies that more ori- 
 ginal evidence can be obtained.^ But it does not require each fact 
 to be proved by the greatest attainable amount of evidence ; for all 
 proof beyond what will satisfy the jury is superfluous and unneces- 
 sary ; and it must be left to the party to determine what amount of 
 evidence is sufficient for that purpose. The rule is chiefly directed 
 against the admission of hearsay evidence, and of copies or parole 
 of the contents of documents ; these all inferring the existence of 
 more original proof of the facts which they set forth. The excep- 
 
 (a) Burnett, 598— Bell's Pr., § 2258—2 Al., .505—1 Starkie, 500—1 Phil., 417- 
 Greenl., 108— Taylor, 280. 
 
 1 Thus letters written Ijy parties who may be examined as witnesses, are not evidence 
 at all of the facts stated in them. They can be used only by putting them in the 
 hands of the writer in the witness box to refresh his memory. The Court, for this rea- 
 son, refused to grant diligence for recorery of such documents ; Livingstone v. Din- 
 woodie, 1860, 22 D., 133.3.
 
 ^ 77. KI'XilUUKS THE Bi:ST EVIDKN'f 'K. 71 
 
 tion by which these secondary proofs are admitted, when tlie ori- 
 ginal witness has died, or the original document has been lost, 
 tends to illustrate the general rule ; because the circumstances un- 
 der which they arc admitted shew that the party did not select in- 
 ferior evidence in order to mislead the jury. 
 
 § 76. This rule does not make it imperative on a party to bring 
 forward the most convincing of all his attainable means of proof; 
 it only requires him to adduce evidence, which in its own character 
 is primary and not substitutionary. For example, " in a case of a 
 claim for debt, the creditor may have the benefit of written corre- 
 spondence and the entries in the debtor's books ; and he may have 
 a bill or bond. Can it be said that if, for some reason best known 
 to himself, he puts his case on the general obligation, as inferred 
 from the correspondence and books of his adversary, and proves it, 
 a verdict must go against him because he did not found on the bill 
 or bond ? The answer is obvious, that the party who holds these 
 separate modes of proving his case by evidence all primary and ad- 
 missible in itself, may take any one he chooses, and cannot be im- 
 peded in that course by the co-temporaneous evidence of another 
 open to him, and wliich might have been easier. No doubt, if the 
 defender says that the agreement or obligation was embodied in a 
 written contract, and that that contract, if produced, would be 
 found to aifect the issue, that is quite relevant. But on that sup- 
 position the written contract is made part of the defender's case. 
 It would lie on him to produce it, and not on the pursuer "(6). 
 
 § 77. Accordingly, although each channel of investigation must, 
 so far as possible, be traced to its fountain-head ; yet where there 
 are independent sources of information, evidence proceeding from 
 any one of them is admissible, provided more original evidence 
 from the same source cannot be obtained ; and the competency of 
 the evidence tendered is not affected by the existence of better evi- 
 dence from some other source which is still unexhausted (c). This 
 principle was well brought out in a recent case, as to whether a 
 bank, which had advanced money to four joint-adventurers on their 
 bill, had agreed to hold, as a special security, shares of the bank 
 stock standing in the names of two of the joint-adventurers. The 
 other two adventurer.? having, in order to prove the agreement, ad- 
 duced both parole and written evidence, including a letter of their 
 
 (b) Per Lord FuUcrtou in Tliom v. North British Bauk, 1850, Vi D., 143. infra, I 
 11. The existence of tlie more direct evidence was not discovered until the trial had 
 proceeded .some length. (r) Greenl., 110 — Taylor. "282.
 
 72 OF THE RULE WHICH § 77- 
 
 oAYii, which stated that they inclosed a "letter of undertaking" 
 from the bank ; the bank called on the presiding judge to direct 
 the jury that the letter of undertaking, being the best proof of the 
 averment, required to be produced or accounted for, before the 
 secoudcUT proof could 1)0 entertained. His Lordship having refused 
 to do so, the Court sustained his ruling, on the ground that it was 
 not proved that the letter of undertaking embodied the agreement 
 in issue, and because, although it did, the evidence adduced was 
 competent (d). On the latter point, Lord Fullerton observed, " It is 
 a manifest abuse of terms to say that this is secondary evidence. It 
 is a connected series of primary evidence ; because each element of 
 it is primary evidence, and the best evidence of each particular fact 
 or circumstance which it has been brought to establish. The whole 
 proof thus composed does not lose its primary character, merely by 
 its being shewn that the agreement might have been more easily 
 proved in another way." 
 
 § 78. Upon the same principle, in an action for reparation of 
 damages sustained by the pursuer in business in consequence of 
 certain acts of the defender, the pursuer having adduced two wit- 
 nesses, who had not any particular acquaintance with his affairs, 
 but spoke generally to his business having fallen off after the acts 
 complained of, their evidence was allowed to go to the jury, al- 
 though it appeared that the pursuer had a book-keeper, who was 
 not examined. But the inferior and unsatisfactory nature of the 
 evidence so adduced was one of the considerations which induced 
 the Court to grant a new trial (e). This case well illustrates the 
 principle, that while evidence of a primary character will not be 
 rendered inadmissible, its credibility may be materially affected by 
 the existence of better evidence from another source ; and that the 
 Court will grant a new trial, if they are satisfied that the jury have 
 erred in consequence of having placed too much reliance on the in- 
 ferior evidence adduced before them.^ 
 
 § 79. On this principle also, circumstantial proof is not rendered 
 inadmissible by there being an eye-witness to the fact, who has not 
 
 (d) Thorn V. North British Bank, 1850, 13 D., 134. (e) Snare v.. E. Fife's 
 
 Trustees, 1852, 14 D., 895. 
 
 2 When the Court thought tliat the evidence on which a verdict had been obtained 
 was unsatisfactory, and when the evidence of tlie principal witness had been taken on 
 fommission abroad, the Court granted a new trial, chiefly because the principal witness 
 had returned to the country and might be examined before the jury; Stewart v. Mac- 
 farlane, 1856. 18 D., 786.
 
 § 80, REQUIRES THE BEST EVIDENCE. 73 
 
 been examined. But his unexplained absence will be matter for 
 the jury to consider in weighing the proof adduced (/). Such ab- 
 sence, however, is unimportant where the party has a legal pre- 
 sumption in his favour ; because one so situated is entitled to a ver- 
 dict in the absence of contrary proof. 
 
 § 80. In criminal trials ibr forgery, the party whose signature is 
 said to have been fabricated, is in general a necessary witness, be- 
 cause the jury should not be deprived of the most convincing proof 
 of the charge, and the absence of such a witness could seldom be 
 supplied by circumstantial evidence (g).^ But it is not certain 
 whether in a charge of forgery of the subscription of a banking 
 company, every one of the partners who use the firm signature 
 must be examined, or whether the fabrication may not be proved 
 by the bank officers acquainted with all their subscriptions. On 
 the one hand, an official who is daily accustomed to observe and to 
 pass the signatures of the several partners, is familiar with them 
 all ; whereas, in general, each of the partners can only speak with 
 confidence as to his own. The professional accuracy of such offi- 
 cials, and their freedom from the l>i;is of interest, also make their 
 evidence trust-worthy; while the great inconvenience which would 
 often result from rec^uiring every one of the signing partners to at- 
 tend at the trial, makes that course inexpedient. On the other 
 hand, the characteristics by which a subscription is identified may 
 be so completely destroyed by many causes, — as a bad pen, a shak- 
 ing hand, an uncomfortable posture, illness, hurry, and the like, — 
 that those best acquainted with the person's handwriting would 
 not recognise it. From such causes the evidence of mere opinion 
 as to the forgery might be fallacious ; and if it were relied on, a 
 conviction might be obtained of a crime which was not committed 
 by any one. The inconvenience attending a full proof of the fact 
 does not seem to be a sufficient reason for risking such a result. 
 Mr Alison mentions a case (h) where a clerk acquainted with the 
 signatures of the partners of >Sir W. Forbes's bank was admitted to 
 prove a forgery of the signature of that firm, without any of the 
 
 (/) Burnett, 561-2 Al., 505. (g) 1 Al., 411—2 Al., 508. (A) Smith. 
 
 1827, 1 Al., 411. The absence of a report of the circumstances of this case impairs its 
 value as a precedent. 
 
 3 In a trial for forgery, where the persona whose names were said to be forced, were 
 abroad and refused to attend as witnesses, evidence of persons who knew their signatures, 
 and deponed that the signatures in question were forgeries, wns admitted, nnd th^ 
 panel wns ronvirtod : Lord Adv<iratp f. AVilson. 18.'i7. 2 Irv.. (i27.
 
 74 OF THE RULE WHICH § 80- 
 
 partners having been called. But tins decision, which was pro- 
 nounced on circuit, cannot be held to fix the law on so important a 
 point. Afterwards, in a trial for forging a bank-note, bearing the 
 names of Coventry and Buclian, the prosecutor adduced a teller 
 and a clerk of the bank who deponed that Coventry was dead, and 
 Buchan was confined by illness ; that the names of these persons 
 appeared to be engraved, and were positively not their signatures, 
 and that the whole impression was a forgery. Lord Justice-Clerk 
 Boyle thereupon delivered the unanimous opinion of the Court that 
 the evidence of forgery was suflicient in the circumstances of the 
 case (i). 
 
 More recently, Lord-President Hope held, in a civil trial, that 
 the subscription of a bank oflicer to a bank account must be proved 
 by the ofiicer himself ; and that, as no special reason was given for 
 his non-attendance, his signature could not be proved by another 
 bank officer who was familiar with his handwriting (¥). 
 
 § 81. From those cases it would appear that there is no general 
 rule, by which one bank officer is admissible to prove the subscrip- 
 tion of another, or of one of the partners ; but that the Court may 
 in their discretion waive the strict rule in special cases, e.g., where 
 the pretended signature appears on a note which is proved to be an 
 impression from a forged plate. This relaxation ought to be made 
 with greater care in regard to subscriptions occurring incidentally 
 in the course of business, than in case of those written uniformly, 
 like the subscriptions to bank-notes, which are prepared in great 
 numbers at the same time, under similar circumstances, and with 
 the design of uniformity (I). It is held in England that the signa- 
 tures to Bank of England notes may be proved by the clerks fami- 
 liar with them, without calling the actual subscribers (w); and 
 that entries in a banker's books which are open to all the banker's 
 clerks, and daily consulted by them, may be proved by any of them, 
 as well as by the actual writers (n). 
 
 § 82. It has sometimes been considered that in cases of impro- 
 bation of attested deeds it is incompetent to lead proof compa- 
 ratione Uterarum, without first adducing the instrumentary wit- 
 nesses (o). This question is considered in the chapter on impro- 
 bation of such documents. 
 
 (t) Kennedy, 1829, Bell's Notes, Gl. (k) Bryson v. Crauford, 1834, 12 S., 937. 
 
 (I) See 2 Hume, 395 ; note. (m) Bank prosecutions, Russ. & Ry., 378—2 
 
 Russ. on Crimes, 393. (n) Furness v. Cope, 1828, 2 Moo. & Pa., 197. 
 
 (o) Eraser v. Wilson, 1842, 4 P., 1171. per Lord Justice-Clerk Hope.
 
 § 84. KEQUIKES THE BEST EVIDENCE. 75 
 
 A decision already cited (^j) shews that tlie liandwriting of do- 
 cuments written by persons who were admissible as witnesses 
 under the former law had in general to be proved by them, and 
 could not be proved by persons familiar with their handwriting. 
 It is thought that the recent statutes by which the parties to the 
 cause have been rendered admissible do not make it incumbent on 
 a party to examine his opponent on the authenticity of the oppo- 
 nent's writing ; because the adducer's case is a direct contradiction 
 of the evidence which such a witness must be expected to give. 
 There is no reason why a party should not tender himself as a wit- 
 ness on the autlienticity of his own handwriting ; yet, as the other 
 party may examine him, the Court would probably not regard the 
 withholding of such evidence as fatal to the case, but would leave 
 it as matter for tlio jury to consider in weighing the evidence.* 
 
 CIIAl'TER II. — OF HEARSAY EVIDENCE. 
 
 § 83. Hearsay evidence is testimony delivered by one who de- 
 pones, not from his personal knowledge of a fact, but from his re- 
 collection of what another told him regarding it. It is evidence as 
 to which the jury must determine on the trust- worthiness, not only 
 of the witness examined before them, but also of another person, 
 the real observer of the fact, whose statement they get only at se- 
 condhand. Hearsay is thus like the copy of a document, the exa- 
 mination of which involves the two questions, whether it is a cor- 
 rect copy, and what credit is due to the original, 
 
 § 84. By an old and firmly established rule, hearsay evidence 
 is inadmissible (q). The reason is, that it is not the best evidence, 
 
 (j)) Supra, (k). See also Burnett, 501— Edmonstone v. Webb, 1801, 3 Esp., 264. 
 (q) Stair, 4, 43, 15 — 2 Hume, 406 — Burnett, 600 — Tait, 430. Hearsay was excluded 
 in Balfour's time; Balfour Prac., 381 : Ami tho Act 1090, c. 16, rescinded Fletcher of 
 
 * In trial of an issue whether the defendant had been prevented by the war with Rus- 
 sia from procuring a cargo at Odessa, it appeared that the master communicated with 
 the defendant's agent at Odessa by aid of an interpreter. Held that evidence by the 
 master of what the interpreter (interpreting the agent at Odessa) said to liim, was re- 
 ceivable as evidence of what was said by tlie agent. The ratio of judgment was the 
 great inconvenience to commerce, should it be made necessary, in such cases, to call the 
 intorprcters : Reid v. lloskin.^ 1855, 5 E. and R.. 720.
 
 76 HEARSAY. § S4- 
 
 anJ is not delivered on oatli ; for the oath of tlie narrator cannot 
 attach to the original statement that safeguard against falsehood. 
 Besides, the truthfulness, and powers of observation and recollec- 
 tion, of the observer of the fact cannot he tested by cross-examina- 
 tion ; the light which his manner would throw^ upon his testimony- 
 is lost ; while the fact of his hearsay statement being tendered, in- 
 stead of his deposition in open Court, creats a suspicion that the 
 latter would not be so favourable to the party. ^ 
 
 § 85. The exclusion of hearsay applies to questions put by the 
 Court and Jury, as well as from the bar (r) ; and its exclusion is 
 pars judicis ; so that if it has been admitted in a proof on commis- 
 sion, it sliould be deleted before the proof is read by the Court {s)? 
 
 %S^. In applying this rule, however, it is necessary to dis- 
 criminate between those statements which are original evidence, 
 and those which proj)erly fall under the term hearsay. The first 
 rule on this point is, that wherever the fact that a certain state- 
 ment was made is relevant, independently of the question whether 
 it is true, it may be proved as original, and not hearsay, evidence {t). 
 This, indeed, is often the only question in issue, as in cases of ver- 
 bal slander, verbal contract, perjury, and the like. So, proof that 
 a certain notice or intimation was given is original evidence (u). 
 And the report of an architect may be read in order to shew that 
 it was made, but not to prove the facts which it contains {x). 
 On the same principle, a letter written to a party, stating that an 
 opinion of counsel adverse to his claim had been received, is admis- 
 sible to prove the intimation, but not the terms of the opinion {y) ; 
 and a memorial and relative opinion were admitted in order to 
 
 Saltoun's forfeiture, on the ground, among others, that one of the witnesses had deponed 
 ex (luditu. On this ground also a report made hy order of the Court is not evidence so 
 far as it was made on information furnished hy others, who have not heen examined as 
 witnesses; M. Tweeddale v. Brown, 1821, 2 Mur., 565. See also Sheils, 1846, Arkl., 
 171. (r) Science v. Howden, 1719, 2 Mur., 169. (s) Morton v. Hunters, 
 
 1830, 4 W. S., 379, 388.2 {t) Stair, 4, 43, 15— Burnett, 60]— Taylor, 371. 
 
 {u) Spink V. Johnston, 1830, 5 Mur., 305— Kerrs v. Penman, 1830, 5 Mur., 144— 
 W'hitehead v. Scott, 1830, 1 Moo. and Rob., 2—1 Phil., 186—1 Greenl., 128, 9. 
 
 {x) Hatton v. Peddie, 1830, 6 Mur., 156. {y) Wilson v. Glasgow and S. 
 
 Western Kail. Co., 1851, 14 D., 1. 
 
 ' The extrajudical statements of a party to a cause may be proved ^by those wiio 
 heard them, although the party himself is now a competent witness; Morrison v. 
 Somerville, 1860, 23 D., 232. 
 
 2 f'lf-rk r. Arnislrong, 1862, 24 1)., 1315.
 
 § 88. HEARSAY. 77 
 
 ebew that the parties, who had consulted the counsel, did not act 
 in bona Jide in regard to a transaction to which tlie opinion re- 
 ferred {z). 
 
 § 87. On the same principle, proof of cliaracter, reputed owmer- 
 ship, notoriety, and the like, although comprehending a number of 
 hearsay statements, is adn;iissible; because the question is — wdiether 
 the report or repute exists, — not, whether it is true (a).^ Conse- 
 quently, evidence that a slander was currently reported, although 
 competent in mitigation of damages, may not be used in order to 
 prove the Veritas convicii {b). 
 
 § 88. The conversations of an individual, being the ordinary 
 indications of the state of his mind, his sentiments and disposition, 
 and his feelings tow^ards any one, are admissible as evidence of 
 such facts (c). The)' are not hearsay ; because their relevancy does 
 not depend on the truth of the statements which they contain, but 
 on their indicating certain beliefs or feelings in the speaker. Ac- 
 cordingly, while expressions of ill-will uttered by a witness are re- 
 ceived when he is objected to on the gTound of enmity (d), the ob- 
 jection that he was tampered with cannot be proved by persons nar- 
 rating his statements that he had received a bribe or a promise (e). 
 On the same principle, in a question in England as to whether a 
 picture which had been exhibited was meant to be a caricature 
 of certain persons, where it was important to ascertain what im- 
 pression it had made on the spectators, proof of statements which 
 they had uttered while looking at it was received (/). On this 
 principle, also, in questions of pedigree, conversations of the mem- 
 bers of the family are admitted, in order to shew whether the 
 claimant was received and treated as a relation (g) ; and counter 
 evidence of the same kind is admitted to shew he was treated as 
 the child of a stranger (//). 
 
 (z) Ewing r. Crichton, 1827, 4 Mur., 183. (a) Stair, 4, 43, 15— Burnett, 601— 
 
 Tait, 432— Gla.ssforcl, 001—1 riiil., 188— Taylor, 371—1 Grecnl., 120.3 
 
 (6) Aitken r. Reid, 1810. 2 Mur., 148— Scott v. M'Gavin, 1821, 2 Mur., 485, G— 
 Kiugan r. W'atson, 1828, 4 Mur., 400— Paterson v. Shaw, 1830, 5 Mur., 270— Macculloch 
 V. Litt, 1851, 13 D., 060. (c) 1 Phil., 180— Taylor, 372—1 Grtenl., 120. See 
 
 Cairns v. Marianski. 1850, 12 D., 1286. affid. 1 Macq., 212. (d) As in King v. 
 
 King, 1841, 4 D., 124— Rose v. .Tuner, 1846, D., 12. (c) Donaldson v. Stewart, 
 
 1842, 4 D., 1215. See Mackay v. M'Leods, 1827, 4 Mur., 281. (/) Du Best i-'. 
 
 Beresford, 1810, 2 Camp.. 512. {</) Douglas cause, 1760, 2 Pat., 110 — Town- 
 
 send Peerage case, May 1843, 70 11. Lord's Journals, 201, et neq. — Taylor, 414 — 1 Phil., 
 217 — 1 Grciul., 131. (A) Townsend Peerage case, May 1843, 7!) Jouru. H. 
 
 Lords, 201, et seq. 
 
 3 The Queen v. Inhabitants of Bedfordshire, 1855, 4 E. and B.. 535.
 
 78 HEARSAY. § ^0- 
 
 § 89. The same priuciple is applied in England to actions of 
 damao-es for adnltery, where verhal and written communications 
 which passed between the husband and wife, and their statements 
 to third persons regarding each other, are admissible evidence for 
 both parties, in order to shew the terms on which the spouses 
 lived (/). Such evidence seems also to be competent in this coun- 
 try (A-). But the admissibility is limited to communications and 
 statements before the alleged criminality ; because after that time 
 tlic behaviour of the spouses towards each other must have become 
 altered, and the proof of it is open to the suspicion of collusion or 
 insincerity (Z).* 
 
 I 90. On this principle, also, evidence is received in England 
 of the statements which a patient made to his medical attendant, 
 with regard to his symptoms and sufferings (but not as to their 
 cause). ; the reason being that such statements are the natural and 
 ordinary expression of co-existing feehngs, and are in a great 
 measure the data upon which the medical treatment proceeds (w). 
 This principle was applied somewhat liberally in an action by a 
 husband to recover payment of a policy of insurance on the life of 
 his wife. After the surgeon who had attended her had given evi- 
 dence for the pursuer as to the lady's health, stating that his opinion 
 was founded chiefly on her answers to his questions, the defender 
 was allowed to prove statements which she had made to other in- 
 dividuals on the same subject. The Court considered that this evi- 
 dence was the best which the case admitted of, and had to be re- 
 sorted to " from the nature of the thing." But " in strictness such 
 declarations are admissible, not so much as evidence of the confes- 
 
 (j) 1 Phil. 189, 195—2 Starlae, 354—1 Greenl., 129. Communications between the 
 spouse.g were admitted for this purpose in Trelauney v. Coleman, 1817, 2 Starkie, E., 
 191, 1 Barn, and Aid., 90 S. C— Willis v. Barnard, 1832, 8 Bing., 376— Elsam v. Fau- 
 cett, 1798, 2 Esp., 562— Winter v. Wroot, 1834, 1 Moo. and Bob., 404— Edwards v. 
 Crock, 1801, 4 Esp., 39. Their conversations with other persons were received in Jones 
 V. Thomson, 1834, 6 C. and P., 415— Willis v. Barnard, supra. [k) See Kirk v. 
 
 Guthrie, 1817, 1 Mur., 275. (/) Kirk v. Guthrie, supra — Milton v. Webster, 
 
 1835, 7 C. and P., 198— Edwards v. Crock, supra— WiWia v. Barnard, supra— 2 Starkie, 
 354. (»0 1 Phil, 190— Taylor, 372—1 Greenl., 129. It is not settled whether 
 
 such proof is admissible in tliis country ; see Hall v. Otto, 1818, 1 Mur., 443, 4. 
 
 4 In a declarator of marriage founded on averments of cohabitation and habit and 
 repute, held competent to ask witnesses the opinion they formed at the time, from the 
 conduct and conversation of the pursuer and defender, as to the footing on which they 
 lived. But evidence, offered by the pursuer, of statements made by her not in presence 
 of the defender, was rejected ; Longworth v. Yelverton, 1862, 24 D., 696.
 
 § 92. HEARSAY. 79 
 
 sion of the wife against her husband, as of the actual state of lier 
 health in her own opinion at the time." The Court were also a 
 good deal iiilluenced hy the evidence being cross to the surgeon's 
 deposition («).* 
 
 § 91. When a party's express or implied admissions may be 
 proved against him, evidence of statements made by others in his 
 presence is admissible, with the view of shewing his conduct on the 
 occasion. This kind of proof is constantly admitted in criminal 
 prosecutions (o) : and it is equally competent, although less fre- 
 quent, in civil cases (p). On this principle, also, where the sufferer 
 in a case of rape had died ])efore the trial, the prisoner was allowed 
 in contradiction of her disposition before a magistrate to prove state- 
 ments which her husband had made in her presence ; because, if 
 she did not contradict them, they were like her own statements ()•)• 
 So where statements by a party's agent are admissible against him, 
 those made by other persons in presence of the agent may be 
 proved, with the view of indicating his conduct on the occasion (s). 
 In these cases the statements may be proved by any witness who 
 was present, as well as by the person who made them (t). It is 
 thought that in treating evidence of this kind, juries often regard 
 the hearsay statement itself, instead of the relative conduct of the 
 party or agent, which is the evidence properly before them. In 
 order to estimate such proof aright, they would require much more 
 knowledge of the individual's disposition than can usually be ob- 
 tained (21). 
 
 § 92. Statements, which would otherwise be excluded as hear- 
 say, may be proved when they form part of the res gestae of acts 
 given in evidence (x). The reason is, that words which accompany 
 actions, or which are so connected with them as to arise from co- 
 existing motives, form part of the conduct of the individual ; which 
 cannot be rightly understood, unless his words as well as his acts 
 
 (n) Aveson v. Lord Kinnaird, 1805, 6 East., 188, per Grose, J. (0) Burnett, 
 
 602— 2 Al., 518— Bell's Notes, 288— Alexander, 1838, 2 Sw., 110— Moran, 1836, 1 Sw., 
 231. {p) Hall I.-. Otto, 1818, 1 Mur., 444— Forteith f. E. Fife, 1821, 2 Mur., 473 
 
 —Hay V. Boyd, 1822, 3 Mur., 13— See Cami.bell v. Macfarlnnc, 1840, 2 D., 663. 
 
 (r) Stephens. 1839, 2 Sw., 350. (s) Manuel v. Eraser, 1818, 1 Mur., 389. 
 
 (t) Forteith v. E. Fife, supra, and cases in Notes (o) and (p). (ti) On the 
 
 subject of this section see the chapters on Admissions, infra. {x) 2 Hume 4U6 
 
 —Burnett, 602—2 Al., 517—1 Phil., 201— Taylor, 375. 
 
 5 In an action of damages for xsTongous confinement in a lunatic asylum, the private 
 memoranda written by the pursuer when in the asylum were admitted as proof of his 
 state of mind; Macintosh i: Eraser, 1859. 21 D.. 783.
 
 so HEARSAY. § 92- 
 
 are proved. In general, also, the actions and the co-relative words 
 are so interwoven, that they cannot be separated without destroy- 
 ing the connectedness and intelligibility of the narrative ; whereas 
 experience teaches us that such a dissociation would generally im- 
 pede the discovery of truth ; for coincident words and actions are 
 far more frequently in unison than the reverse (?/). The admissi- 
 bility of statements on this ground is determined by the judge ac- 
 cording to their connection with the relative facts, and in the exer- 
 cise of a sound discretion ; it being extremely difficult, if not 
 impossible, to bring this class of cases within the limits of a more 
 particular description (2). The admissibility usually depends on 
 whether the declarations were co-temporaneous with the facts, and 
 so connected with them as to illustrate their character (a); or in 
 legal lano-uaffe, whether the words and acts occured unico contexfu. 
 Yet it is not necessary that they be co-temporaneous, " for the na- 
 ture and strength of the connection are the material things to be 
 looked to ; and, although concurrence of time cannot but be always 
 material evidence to show the connection, yet it is by no means es- 
 sential " (6). On the other hand, a statement which resolves into 
 a narrative of a past occurrence will not be admitted to qualify or 
 explain it (c). The application of these principles will be seen from 
 the following cases. 
 
 § 93. In trials for rioting, proof of the cries of the mob is ad- 
 mitted in order to show its purpose and character (d); and expres- 
 sions used by any one of several persons engaged in an unlawful 
 undertaking (provided they are in furtherance of the common de- 
 sign), are admissible against the whole in exj)lanation of their 
 
 (2/) This subject is well illustrated by Mr Greenleaf, vol. i, page 108, et seq. Baron 
 Hume (vol. ii, p. 406, note) observes upon it — " very often words uttered to a witness 
 are a substantial point of the res gestae told by such witness ; are the cause and motive 
 why the witness himself has proceeded to do a certain thing ; and he cannot relate truly 
 and intelligently what he did, without mentioning why and how he came to conduct 
 himself in that way. Put the case that John finds James lying wounded and bleeding 
 on the highway, and James tells John that he has been fired at with a pistol and robbed, 
 and that the robber is dressed so and so, and has robbed him of such and such articles, 
 and has gone off by such and such a road. Now here, if Jolm in consequence pursues 
 by that road and takes a man dressed as has been told him, and on a search the articles 
 mentioned and a pistol bearing marks of being recently fired are found on him, certain- 
 ly this verbal information from John is a link and circumstance of the fact, is an act in 
 the progress of the business, and equally admissible as the rest of the story." 
 
 (z) 1 Greenl., 137. (a) Greenl., supra. (b) Per Ch.-Just. Denman 
 
 in Rough v. Great Northern Rail. Co., 1841, 4 Per. and Dav., 691— Taylor, 379. 
 
 (c) 1 Greenl., 138— Taylor, 380. (d) 2 Ilurae, 407, note— Lord G. Gordon's 
 
 case, 21 How St. Tr., 542.
 
 § U;i HEAItSAY. 81 
 
 acts (e). So where uue of several prisoners obtained a certain cer- 
 tificate which was founded on as suspicious against them, proof of 
 the stateiuout made by tliat prisoner on ajtplyinu; for it, was received 
 in exculpation (/). Thus also, in a trial for nuirder, the prosecu- 
 tor was allowed to aslc a witness whether a boy came to his shop 
 and asked for ])oison, but not whether tlio boy said he came from 
 Deanside, that statement being held (rather strictly) as not part of 
 his act on the occasion (gr). So the pursuer in a question of nui- 
 sance to his house by a manufactory, was allowed to prove that 
 persons had looked at the house with the view of taking it on lease, 
 but not the reason they had assigned for not taking it (h). Where 
 a person was charged w^ith having committed a forgery upon his 
 father, who declined giving evidence for the crown, the prosecutor 
 was allowed to prove that the father, on the document being pre- 
 sented to him, had said it was forged (i). But this decision went 
 partly on the declinature, in consequence of which the father was 
 in some measure viewed as if he had been dead. So in an action 
 of damages for assault, where one of two boys wdio had been on the 
 spot at the time was dead, and the other was not known, the pur- 
 suer was allowed to ask anotlier witness whetlier she heard them 
 make an exclamation at the time, and what the exclamation was(^). 
 But this decision probably proceeded on the special circumstances 
 of the case, fully more than on the exclamation being part of the 
 res gestae. Again, in a charge of rape aggravated by administering 
 intoxicating drugs, the prosecutor was allowed to ask a witness 
 whether the person who mixed the liquor, and who Avas not the 
 prisoner, had stated at the time his reason for doing so (/). In an 
 English case (m), wdiich has been considered authoritative, the 
 statement made by a person on his return home late at night, to 
 the effect that he had been evading the diligence of his creditors, 
 was allowed to be proved in a question whether he had committed 
 an act of bankruptcy. This decision strongly illustrates the prin- 
 
 (e) 2 Hume, 407, note— 1 Phil., 199— Taylor, 381. (/) Hunter, 1838, 2 
 
 Sw., 12. {ff) Elder or Siuitb, 1827, Symo, 121. With this case compare Craigie 
 
 r. Hoggan, 1838, 16 S., 584 (alHrnied on merits, Macl. and Hob., 942), where in an 
 action of declarator of marriage, the defender was allowed to ask a witness what the 
 pursuer's father had stated to him as to liis purpose in calling for the pursuer at an inn 
 some distance from homo, in which she was living with the defender. But this case 
 was decided on its special circumstances. (h) Hart v. Taylor, 1827, 4 Mur., 811. 
 
 (0 Harvey, 1835, Bell's Notes, 292. {k) Ewing v. Earl of Mar, 1851, 14 D., 
 
 314, per Lord President Boyle. (/) M-Millan, 1833, Bell's Notes, 290. 
 
 (7h) Bateman v. Bailey, 1794, 5 Dur. and East., 512, noticed per Lord Denman in 
 Rough r. Great Northern By., 1841, 4 Per. and Uav.. 092. and in Taylor, 379.
 
 82 HEARSAY. § 93- 
 
 ciple, that tiio admissibility of the statements depends on the 
 strength and nature of their connection with the relative act, not 
 on their being co-tcmporaneous with it.^ 
 
 § 94. On the same principle, words spoken to a witness which 
 have caused him to take certain steps relevant to the cause, are ad- 
 mitted, e.g., an information which led him to search for the stolen 
 goods, or to apprehend the prisoner {ii). So in a question of boun- 
 daries of a common, the pursuer was allowed to ask a shepherd 
 what directions his master, a former tenant, had given him as to 
 the boundaries ; the object being to shew what directions he had 
 acted upon (o). But this evidence should be limited to such a short 
 account of the statement as is necessary for making the narrative 
 connected, and in general should not include a repetition of the 
 statement itself. Accordingly, the Court usually requires the pro- 
 secutor to put his question thus, " In consequence of something you 
 heard from such a person, did you search," &c. 
 
 § 96. Akin to the principle thus noticed, is that which in 
 criminal cases admits proof of statements made by the injured par- 
 ty de recenti after the alleged crime. Such expressions being the 
 natural outpourings of feelings aroused by the recent injury, and 
 still unsubsided, are a consequence and continuation of the res 
 gestae, and corroborate the party's evidence for the crown ; while on 
 the other hand a discrepancy between his sworn testimony and his 
 statements recently after the alleged offence is a favourable cir- 
 cumstance for the prisoner. On these grounds, such evidence has 
 for a long period been admitted both for the prosecution and de- 
 fence, after the injured party has been examined (/j). Thus the 
 prosecutor was allowed to prove the statement which one who had 
 been robbed made an hour afterwards to a person to whose house 
 he came, and whom he roused from bed (r). So where an opera- 
 tive had been assaulted, and had vitriol thrown on his clothes for 
 combination purposes, the account given by him immediately after 
 the injury, to the woman with whom he lodged, was received for 
 the cro^vn (s). And the prosecutor may examine a police officer 
 upon the complaint made to him de recenti by the person robbed, 
 
 (n) Bell's Notes, 290. (o) Hunter v. Dodds, 1832, 10 S., 833. (p) 2 
 
 Hume, 406, note— Burnett, G02— 2 Al., 513, 522. (r) Macfarlane, 1826, 1 Al., 
 
 244. (s) M'Kay and Counaclier, 1823, 2 Al., 514. 
 
 6 In a trial for murder, violent language by the prisoner toward the deceased, and 
 complaints by the deceased of the prisoner, both within twenty-four hours of the death, 
 were admitted ; Lord Advocate v. Stewart, 1855, 2 Irv., 179.
 
 § 98. HEAUSAY. 83 
 
 but not on statements made by that person on tlic day of trial (t). 
 Nor will a statement be received wliich was uttered five or six 
 hours after an alleged robbery; because the party's feelings have 
 had time to subside during the interval (ii). In the same way, the 
 prisoner, in a charge of sheep-stealing, was allowed to ask a witness 
 what the owner of the sheep had said to him wliile on tlie road fol- 
 lowing their track (x); but in a charge of roltbjry be was not per- 
 mitted to prove statements made five or six hours afterwards by 
 the alleged sullcrer (//); and in trials for discharging loaded fire- 
 arms, the Court excluded statements wliich had been uttered two 
 and three days after the alleged crime (;;;). 
 
 § 9G. The law of this country does not recognize the distinc- 
 tion taken in England, by Avhich proof that the injured party 
 stated de rccenti he had been robbed, or the like, is admitted, while 
 proof that he named the prisoner as the assailant is excluded (a), 
 and the details of the statement cannot be proved, except in cross- 
 examination {h). Here it is competent to prove the statement as 
 it was made (c) ; although in practice the prosecutor usually con- 
 fines himself to a general examination upon it, while the prisoner's 
 counsel often enters minutely into its details. 
 
 § 97. In considcrijig the admissibility of this kind of evidence, 
 regard must be had not only to the time which intervened between 
 the alleged offence and the statement, but to the whole circum- 
 stances, e.g., the extent and nature of the injury, and the opportu- 
 nities which the sufferer liad of expressing his feelings. For ex- 
 ample, while the statement Avliich a party, seriously injured, made 
 at a short interval to the persons he first met should be received, 
 yet if he uttered no complaint, and manifested no sj^mptoms of ex- 
 citement to them, his statements to other persons, although at no 
 gi-eater interval, should be rejected, because they are the narrative 
 of a previous occurrence, and not the expression of unintermitted 
 excitement {d). 
 
 % 98. When applying this principle to cases of rape, and 
 assault with intent to ravish, the Court has admitted a very exten- 
 
 (0 Kelly, 1820, Bell's Xotes, 288. («) Moran, 1 Sw., 231. (z) Mills, 
 
 1844, Bell's Xotes, 275. (y) Moran, supra. (z) Ilardio, 1831, Sh. Cr., 
 
 237— Kennedy, 1838, 2 Sw., 214. (a) K. v. Wink, 1834, G C. and P.. 397— K. 
 
 V. Osborne, 1842, Car. and Jlarsh, G24. But see the remarlcs of Mr Justice Cresswell 
 in the latter case ; see also Taylor, 374. (6) R. v. "Walker, 1839, 2 M. and Rob., 
 
 212 — R. V. Osborne, supra. (c) Authorities in notes to preceding section. 
 
 (d) See HiU v. Fletcher, 1847, 10 D., 7, infra. 
 
 ¥ 2
 
 84 HKAUSAY. § 98- 
 
 sive iiivestigatiuu into tliu injured party's statements (e). Cum- 
 plaints made by her at intervals of two days (/), and of nearly a 
 month {g), have been admitted for the prosecution; while the 
 prisoner has been allowed to prove expressions which she uttered 
 next day (Ji), and to ask whether "any time in April" she had 
 stated that the connection was voluntary {i). The reason for this 
 peculiarity is the importance of sifting the woman's whole conduct 
 and explanations regarding the charge, which is easily made in 
 order to restore a lost character or to gratify jealousy; while it is 
 difficult for the prisoner to disprove it, where there has been a 
 voluntary connection. 
 
 Yet, while "immediate disclosure is expected, and concealment 
 creates suspicion" {k), allowance must be made both for the ex- 
 treme excitement, sometimes amounting to frenzy, which so 
 terrible an outrage causes in the sufferer s mind, and for her na- 
 tural reluctance to publish her disgrace (Z). It is therefore always 
 important to ascertain the footing on which she stood towards the 
 persons she first met, as compared with those to whom she told 
 her story; and her state of health and spirits during the interval, 
 as well as her disposition and character, should also be investi- 
 gated. Without considerable light on such circumstances the jury 
 cannot estimate aright the value of the woman's subsequent nar- 
 rative. 
 
 In general, the prisoner will not be allowed to prove the 
 contradictory statement, without laying a foundation for it by 
 examining the injured party {m). The same principle applies a 
 fortiori to the attempts of the crown to support that witness' 
 testimony by proving de recenti statements. 
 
 § 99. Evidence of the pursuer's statements de recenti has been 
 rejected in civil actions of damages at her instance for assault 
 with intent to ravish (%). But in the last case on this point some 
 
 (e) 1 Hume, 309—2 Hume, 407, note— Burnett, 554, 602—1 AL, 217, 224—2 Al., 
 524. See also Stephens, 1839, 2 Sw., 350. (/) Grieve, 1833, Bell's Notes, 288. 
 
 {g) M'Millan, 1833, Bell's Notes, 288. {h) Gumming, 1828, Syme, 330. 
 
 (i) Young, 1 823, 2 Hume, 409, note. The date of the alleged crime does not ap- 
 pear. See also M'Millan, supra. (k) Per Lord Justice-Clerk Boyle in M'Millan, 
 1833, Bell's Notes, 288. (Zj A strilcing illustration of this occurred in the case 
 of M'Millan, sujjra; where the girl's silence had been persisted in for a month, and had 
 only been relinquished on her being threatened with a visit from a doctor ; yet the 
 panel was convicted of assault with intent to ravish, and was transported for life. 
 
 (m) M'Hardic, 1834, Bell's Notes, 288. Sec also Robertson, 1842, 1 Broun, 152. 
 
 (n) Maclean v. Miller, 1832, 5 De. and And., 270— Hill v. Fletcher, 1847, 10 D., 7, 
 per Lord Justice-Clerk Hope. His Lordship observed that there was a diiference of
 
 ^ 101. HKARSAY. ^.'> 
 
 interval liaJ elapsed between the time when she was detected in 
 suspicious circumstances and her statement, which might have 
 been, and probably was, concocted. The decision also went partly 
 on the circumstance that the woman had not been examined; 
 the case having occurred before the late statute admitting party- 
 witnesses. The point may therefore be considered as open in 
 cases where the statement was recent, and where a foundation has 
 been laid fur the question by examination of the pursuer. 
 
 The admissibility of statements made by the parties de recenti, 
 and of those forming part of the re* (jesfae, is noticed afterwards. 
 
 § 100. Hearsay evidence is often admitted in criminal cases to 
 prove that a witness had identified the prisoner recently after the 
 crime (o). The reason is, that evidence of identification is valu- 
 able in proportion to the freshness of the witness' recollection ol" 
 the person's features and appearance; so that an impression which 
 enables one with perfect confidence to identify a stranger at an 
 interval of a few hours or days will often fade during the weeks or 
 months which elapse before the trial.^ 
 
 § 101. Until recently the deposition of a fatness on oath 
 could not be either supported or contradicted by evidence of his 
 extrajudicial statements, except in the cases mentioned in the pro- 
 ceeding paragraphs (p). But a recent statute provides that it 
 shall be competent in any action or proceeding to examine any 
 witness as to "whether he has on any specified occasion made a 
 statement on any matter pertinent to the issue, different from the 
 evidence given by him in such action or proceeding; and it shall 
 be competent in the course of such action or proceeding to adduce 
 
 opinion among some of Ixia brctlircu on the bcncli whom he had consulted upon tlie 
 pciint. (o) 2 Al., 628. Thus in a charge of horse-stealing from Hart, the pro- 
 
 secutor was idlowed without objection to prove by the oflacer who apprehended the pri- 
 soner, that Hart had identified the prisoner on Friday, as the man wlio stole his horse 
 on the previous Wednesday ; Wight, 1836, 1 Sw., 47 ; Bell's Notes, 288. 
 
 (;>) 2 Hume, 381— Burnett, 4(;3— 2 Al., 522— Bell's Xote.s, 270— Hardie, 1831. Sh. 
 Cr., 237— Wyllie, 1829, Sh. Cr., 22:;. 
 
 ' UTien a boy of seven years old was examined as a witness in reference to an al- 
 leged murder, subsequent witnesses were asked what the boy had said on the subject 
 within forty-eight hours after the commission of the crime charged. U was objected that 
 the evidence was hearsay and inferior to that of the boy himself; but answered that it 
 was the practice of the Court to admit such evidence, to test the value of the evidence of 
 a witness so young, and to .shew what he said df recenti ; Lord Adv. r. Stewart, 1855, 2 
 Irv., 179. In an action of divorce against a husband, the question whether the alleged 
 paramour (who had been a witness) had, at the birth of her child, said who its father 
 was, was admitted to ishow the consistency of her statenniit on the subject throughout ; 
 A r. B. IS.^S, 20 1>.. 407.
 
 86 HEARSAY. § 101- 
 
 evidence to prove tliat such witness has made such different state- 
 ment on the occasion specified" (r). The object of this enactment 
 is to prevent a mtness who had given contradictory accoinits of the 
 same matter from being received as perfectly trust-worthy. The 
 witness must first be cross-examined upon the point ; l)ut after that 
 has been done other evidence may be led to prove the contradic- 
 tion.^ Of course the party against whom such evidence is adduced 
 may cross-examine the ^^itnesses who speak to the contradictory 
 statement. He ought also to be allowed to prove by other evidence 
 that the statement really made on the occasion does not conflict 
 with that given by the witness on oath ; otherwise a party against 
 whom a "^-itness is adduced might select from a number of persons, 
 to whom the statement was made, the only one vvlio took up an 
 erroneous impression of it; and the consequence would be, that its 
 real nature would be misrepresented. But the statute is silent on 
 this point. The rule stated at the commencement of this section 
 subsists except in so far as thus altered by statute. Practically it 
 may be regarded as abrogated.^ 
 
 § 102. Tlie excex^tions hitherto considered from the rule 
 against admitting hearsay, are founded on the nature of the fact to 
 be proved, or the object for which the evidence is tendered. The 
 law of this country also admits hearsay in all cases where the 
 
 (r) 15 Vict., c. 27, § 3. 
 
 8 SucL evidence will be admissible altliougli the witness' deposition and liis ijrevious 
 statement be not in direct and absolnte contradiction ; Jackson v. Thomson, 1861, 31 
 L. J. N. S., Q. 13., p. 11—17 and 18 Vict., c. 125, § 22. 
 
 Counsel for a prisoner (in a trial for stabbing and riot) proposed to ask a witness 
 (a person said to have been injured by the prisoner) whether, at certain places, the 
 witness had said to two Procurators Fiscal named, that he had received the injuries 
 in question from an individual who was not one of the prisoners ; and stated that he 
 meant, by putting the question, to lay a foundation for examining the Procurators 
 Fiscal in contradiction of the witness if necessary ; the Lord Justice-Clerk (Hope), on 
 Circuit, disallowed the question ; Lord Advocate v. O'Donnel, 2 Irv., 236. But in 
 Inch V. Inch, 1856, 18 D., 997, evidence by an agent of wliat a witness had said in 
 precognition was allowed, in contradiction of the evidence of the witness, due founda- 
 tion having been laid. 
 
 In Emslie v. Alexander, 18G2, 1 Macphcrson, 209, Lord Neaves remarked that it was 
 not competent to contradict a witness by proof of what he said on precognition; and the 
 Lord Justice-Clerk (Inglis) said he had often rejected such evidence in criminal cases. 
 It seems competent, however, to contradict a witness by proof of what he said when 
 under examination as a bankrupt ; and the notes of his deposition, taken and authenti- 
 cated by the Sheriff, maybe recovered and adduced as proof for that purpose ; Emslie v. 
 Alexander, supra. 
 
 9 The statement in the text seems too absolute.
 
 § 104. HEARSAY. ^^7 
 
 person whose stateineut is narruted was admissible when he spoke, 
 but has died before the trial («). The reason is, that such evi- 
 dence is the best which the circumstances admit of; that there is no 
 ground for suspecting it is tendered for an improper purpose; and 
 that injustice would more frequently arise from excluding it, than 
 from admitting it under a ja'opcr direction from the judge as to 
 its credibility. Evidence of this kind is highly trust-worthy when 
 it has been made deliberately under the apprehension of death. 
 But statements which witnesses deceased uttered even in ordinary 
 conversation, and while in perfect health, are equally admissible (/). 
 
 § 103. Hearsay of a deceased person, however, will be ex- 
 cluded, if he was inadmissible as a witness when he made the 
 statement («). Accordingly, in a case of filiation, where the pur- 
 suer died after a semiplena jjrohatio had been adduced, her death- 
 bed statement could not be proved by the oath of her mother, who 
 had been sistcd as pursuer. As the original pursuer was not 
 an admissible witness, — the case having occurred before the recent 
 statute (cc), — her hearsay statement could not be proved after her 
 death ; and it was incompetent to take the oath of any other person 
 in supplement of a semiplena proof {y). The Lord Chief Commis- 
 sioner once rejected hearsay of a deceased person's opinion as to 
 the mental capacity of a certain individual, which was the question 
 in issue {z). It is doubtful whctlier this decision can be supported, 
 unless the ojiinion would have been inadmissible as original evi- 
 dence. 
 
 § 104. Permanent insanity has the same effect as death upon 
 the competency of a witness; and it may therefore be fairly argaied, 
 that proof of statements by one so afflicted should be received, if 
 they were made while he was sane (a). This view (on which 
 there are no decisions) derives support from two cases already 
 noticed, where the declinature of the witness to depone {h), and the 
 
 («) Bell's Pr., § 2259— Buraett, GOO— Tait, 431—2 Al., 515— Bell's Notes, 291— D. 
 Roxburghe v. Chatto. 1753, Elcli. Witness, No. 38— E. Fife v. E. Fife's Trustees, 1816, 
 1 Mur.. 95— Millar r. Jloftat, 1820, 2 Mur., 318, 324— Wilson v. Jamieson, 1827. 4 
 Mur., 308— Mackenzie, 1827, Syme, IGO— Hunter, 1838, 2 Sw., 1. Hearsay of state- 
 ments made by a deceased witness is admitted, wliere a written deposition had been 
 taken from him in presence of a magistrate ; Mackenzie, 1827, Syme, 158. Sec infra, 
 § 117. (0 Authorities in preceding note. (w) Bell's Pr., § 2259 — ilillar r. 
 
 Moffat, 1820. 2 Mur.. 318, 325— Patterson's Trustee v. Johnston, 1816, 1 Mur., 74— 
 Tait, 431. (x) 16 Vict., c. 20. {y) See Dobie i,-. Gaff, 1843, 6 D., 1385. 
 
 (z) Darling v. Grieve, 1822, 3 Mur., 90. (a) Bentham Ev., iii, 408— Biirnelt, 
 
 601— Tait, 431. {h) Harvey, 1835, Bell's Notes, 292; siqyra, i 93.
 
 88 HEARSAY. § 1(^4- 
 
 iuability of the addueer to iind him (c), partly induced the Court 
 to admit proof of his statements. In another case (of rather old 
 date), certificates by persons imprisoned abroad as captives of war 
 ■were received, because they were the best evidence that could be 
 got in the circumstances, the witnesses being completely beyond 
 the party's reach (d). Severe illness of a witness, however, is not 
 a ground for admitting hearsay of his statements (e) ; the proper 
 course being either to delay the trial, or to examine the witness on 
 commission. Still less will the refusal of one who is abroad to give 
 evidence before a commissioner of Court render hearsay or an 
 affidavit of his statements admissible (/). A witness so situated 
 cannot reasonabl}'' object to being examined in regular form; and, 
 therefore, admitting secondary evidence of his statements would 
 give opportunities for collusion and cooking up ex parte evidence. 
 Hearsay of statements made by a foreigner who had left the coun- 
 try, and whose residence was unknown, was held inadmissible as 
 evidence for a prisoner ; and a written statement by another witness 
 in the same situation was also rejected (cf). So held as to hearsay 
 of statements by a Scotsman who had left the country, or at least 
 whose residence was unknown {h)}^ 
 
 § 105. The fact of the witness' death, or insanity, — if that be 
 a ground for admitting hearsay (2), — must be established to the 
 satisfaction of the Court before the secondary evidence of his 
 statements will be received. But a prima facie proof of the fact 
 will suffice; and the Court in exercise of its discretion may admit 
 hearsay on the point {j). 
 
 § 106. The best proof of what a deceased witness said is his 
 deposition taken on commission to lie in refe7itis, or his examina- 
 tion in a previous trial of the cause (k). It is doubtful whether 
 
 (c) Ewing V. E. Mar, 1851, 14 D., 314 ; supra, § 93. {d) Banking of Cleland's^ 
 
 Creditors, 1708, M., 12,634. (e) Gun v. Gardner, 1820, 2 Mur., 196— Slothart' 
 
 V. Johnstone's Trustees, 1821, 2 Mur., 541. (/) Glyn v. Johnstone & Co., 1834, 
 
 13 S., 126. (ff) Cavalari, 1854, 1 Irvine, 564. (A) Eouatt, 1852, 1 
 
 Irvine, 79.1" ^^^ gge supra, ? 104. (J) Hearsay was admitted where a 
 
 person deponed he had been at the individual's funeral; Christian v. Kennedy, 1818, 1 
 Mur., 424 ; and where one deponed that he knew the original witness had been con- 
 victed of a capital crime, and had been hanged ; Miller v. Moffat, 1820, 2 Mur., 325. 
 See analogous cases upon admitting parole proof of lost documents, infra, § 157. 
 
 (A) See this fully considered in treating of the examination of witnesses. 
 
 1" In England, the Court refused to grant a commission to examine witnesses in 
 Russia, when Russia and England were at war ; because to do so, would be to authorise 
 communication with th( Queen's enemies; Barrick v. Buba, 1855, 16 Scott, 492.
 
 § 106. HEARSAY. 89 
 
 the deposition of one cxaniined as a haver may ho used us his 
 evidence in causa after his death {I). The statements of a de- 
 ceased witness may not he i)roved hy his precognition taken hy the 
 adducer's agent ; hecause sjuch examinations are conducted, not 
 with the view of hringing out a fair statement, hut of ascertaining 
 what the witness can say in favour of the party examining {rit)P 
 On this ground a precognition taken with a view to a criminal 
 prosecution and signed by the witness is inadmissible ; although 
 such examinations are usually conducted with more impartiality 
 than precognitions by private persons (w). In a case of rape, how- 
 ever, the information which the injured party had given to the 
 public officials was allowed to be proved by parole of a person who 
 had been present when she emitted it {o)}'^ 
 
 Voluntary affidavits by persons deceased are not admitted ; be- 
 cause they are usually prepared for an ex 'parte purpose, and arc 
 open to suspicion of having been collusively dressed up (/>) for the 
 
 (J) It was rejected by the Lord Chief Commissioner in Campbell v. Davidson, 1827, 
 4 Mur., 178. (jn) M'Intosh, 1838, 2 Sw., 103— Ormond and Wylie, 1848, Arkl., 
 
 488. in) Cases in note (m). (o) Stephens, 1829, Bell's Notes, 292—2 
 
 Sw., 348. It is not easy to see a sufficient ground for distinction between this case and 
 those iu the preceding note (m). (jj) Mag. of Aberdeen v. More, 1813, Hume 
 
 D., 502. 
 
 ^1 See as to competency of contradicting a witness by proof of what he said on pre- 
 cognition, supra, § 101, note 8. 
 
 12 In a trial for murder, the prosecutor oiTered in evidence, the deposition of a party 
 who had died before the trial, and who was not the party injured. The deposition had 
 been emitted in the presence of the Sheriff and Procurator Fiscal. It was objected for 
 the prisoner that the deposition was inadmissible, because it did not bear to be emitted 
 in prospect of death ; and because it was the general rule in criminal practice that all 
 the evidence must be emitted in presence of the prisoner, to which the admission of the 
 <Iying declaration of the injunul person was the only recognised exception. The Court 
 iield that there was no ground for distinguishing between the dying declaration of the 
 person injured, and of any other person competent to be a witness ; and that the cir- 
 cumstance that tlu' declaration did not bear to be emitted in view of death, formed no 
 i.bjection to its admissibility, and they received the evidence. 
 
 In comi)eting petitions for service, aged witnesses were examined on commission. 
 One claimant died ; and his son did not represent him, but presented a new petition for 
 service to the common ancestor. Held, in a jury trial between that claimant and the 
 former and surviving claimants, that the latter were entitled to read to the jury the de- 
 position of two of tlie aged witnesses who had since died. But the Court, in admitting 
 the evidence, were influenced by the fact that, at the commission at which the evidence 
 of these witnesses was taken, the father of the new claimant, who had the same interest 
 as he, was present ; Souter v. M'Intosh, 1859, 21 D., 835.
 
 90 HEARSAY. § 106- 
 
 occasioii ; and lor the same reason certificates will very rarely be 
 received (q), except in ancient matters (r)}^ 
 
 § 107. The most common way of proving a deceased witness' 
 statements is by adducing the person to whom they were made, 
 who can be cross-examined as to how the subject was introduced, 
 and the circumstances under which the statements were made. It 
 would seem that a letter or note holograph of the deceased witness 
 may be used (s). Such a document however may often be subject 
 to the same objection as his afiida\dt ; while on the other hand, if 
 it was written incidentally, or in answer to questions fairly put, it is 
 much better than ordinary hearsay.^* Letters wTitten by a deceased 
 member of the family, and a manuscript pedigree compiled by an 
 ancestor of the claimant ante litem motam, were received in a peer- 
 age case to prove the pedigree, which was ancient {t). Where a 
 wdtness deponed that he had a conversation with a person since 
 dead, during w^hich that person referred to a book to refresh his 
 memory as to a fact otherw^ise known to him, the Court held that 
 that fact might be proved without producing the book {u). 
 
 § 108. In considering the English authorities on these points, 
 it will be observed that the general rule in that country is against 
 
 (gr) Compare Humphreys {soi-disant E. Stirling), 1839, Swinton's Rep., 177, and 
 Appx., 86, witli Ranking of Cleland's Creditors, 1708, M., 12,G34 ; svpra, § 104, {d). 
 
 (r) Stair, iv, 43, 5— Tait, 40G. (s) See GampLell v. Davidson, 1827, 4 Mux., 
 
 173— M'Alister v. MvUister, 1833, 12 S., 198— Wilson v. Kirkwood, 1822, 3 Mur., 205. 
 
 {t) Crawford and Lindsay Peerage Case, 1842, 2 CI. and Finn., New Cases, 559, and 
 13 D. (H. Lords), 32. 00 Oliver, 1827, Syme, 224. 
 
 13 Where the clerk to a kirk-session deponed that the moderator, who had since died, 
 had, at a meeting of the kirk-session, made a statement relative to an interview with 
 the defender, which the clerk entered on the minutes of meeting of the session to the 
 dictation of the moderator, and where the clerk deponed to the accuracy of the minute, 
 the Court indicated an opinion in favour of the admissibility of the minute as proof of 
 what the moderator said ; hut, before deciding the point, directed that the surviving 
 members of the kirk-session who had been present should be examined ; A v, B, 1858, 
 20 D., 407. 
 
 11 In a trial for murder. Lord Justice-Clerk (Hope) and Lord Handyside, Lord Ivory 
 dissenting, rejected, as evidence of a fact in the cause, a diary or book of memoranda 
 in the liandwriting of the deceased. It was argued that the writing of a deceased was 
 better evidence than hearsay of what he said, and ought to be admitted on the same 
 principle ; but the Lord Justice-Clerk obseiTed that there was a great diiference ; be- 
 cause, when hearsay evidence was received the witness could be examined as to the 
 manner of the deceased when saying the words deponed to, and as to the circumstances 
 in which they were said ; but as to the time when jottings were made in a diary, and the 
 motives for making them, there was no proof at all ; Lord Advocate v. Madeline Smith, 
 18.57, 2 Ii-v., f;41, 647, 062.
 
 § 109. HEARSAY. 91 
 
 admitting hearsay of deceased witnesses, and it is only received in 
 some excepted cases ; namely, (1) Questions of pedigree, (2) Ques- 
 tions of public or general interest, (3) Questions regarding ancient 
 possession, (4) IJeelarations by deceased witnesses against their 
 interest, (5) Dying declarations, (G) Declarations of deceased 
 witnesses made oilicially, or in the course of their business (x). 
 
 Hearsay is only admitted in these cases in England when ori- 
 ginal evidence cannot be obtained. It is therefore unnecessary to 
 notice the rules regarding them ; as the admissibility of hearsay of 
 dead witnesses in Scotland is general. 
 
 § 109. The question is still open, whether hearsay of hearsay 
 is admissible when both the original witness and the narrator are 
 dead. It is easy to "conceive a case in the criminal Court where 
 it would be absolutely necessary to receive such evidence, as a 
 murdered man having stated who was the murderer to a person 
 since dead " (y) ; and where the facts are simple and likely to be 
 remembered, such evidence would be credible. On the other hand 
 these are exceptional cases ; for in general, hearsay of hearsay would 
 be of no value in e^^dence, and would be more apt to mislead 
 than assist the jury. This point arose in a case where Lord 
 Pitmilly expressed a clear opinion in favour of the admissibility ; 
 but the other judges waived deciding on it (z). Eecently, however, 
 the present Lord Justice-Clerk^^ held such evidence to be inadmis- 
 sible upon the propinquity of one claiming a succession (a). 
 
 In England hearsay of hearsay is admitted in cases of pedigree 
 where both declarants were within the family, and had died before 
 the trial, and where the statements were made ante litem motam (6). 
 And an ancient xDedigreo prepared or adopted by an ancestor of 
 the claimant is also admissible, on the presumption that he knew 
 it to be correct, cither from personal knowledge, or by information 
 derived from deceased members of the family (c)}^ 
 
 (x) See these uoliced iu 1 PliiUips, 211— Taylor, 392—1 Grcenleaf, 168. 
 
 (y) Per Lord Justice-Clerk Boyle in Smith v. Bank of Scotland, 1826, 5 S., 98. 
 
 (2) Smith V. Bank of Scotland, supra. (a) Morgan v. Morris, Nov. 1853, not 
 
 yet reported. See on this point § 160. (6) 1 Phil., 227— Taylor, 416— Doe v. 
 
 Randall, 1828, 2 Moo. and Pa., 20— Monlrton r. Att.-Geu., 1831, 2 Russ. and My., 147, 
 166— Slancy i-. Wade, 1836, 7 Sim., Oil, and 1 My. and Cr., 355. 
 
 (c) Davies v. Loundes, 1843, 7 Scott, N. R., 218; 6 Man. and Gr., 527— Slaney v. 
 Wade, stipra — Monkton v. Att.-Gen., supra — Crawfurd and Lindsay Peerage case, supra, 
 § 108. 
 
 '5 The late Lord Justice -Clerk (Hope). TIio puint is not mentioned in any of the 
 reports of the case. 
 
 "5 Held in England tliat the contents of a document cannot be proved by a copy of 
 a copy; Everingham i-. Roundell, 1838, 2 Moo. and Robb., 138.
 
 92 CONTENTS OF WRITINGS §^1^- 
 
 CHAPTEK III.— OF THE ADMISSIBILITY OF PAROLE PROOF OF THE 
 CONTENTS OF WRITINGS. 
 
 § 110. An important brancli of the rule wliicli requires the best 
 evidence is, that the terms of documents which may be produced 
 must be proved by the documents themselves, and cannot be proved 
 by parole evidence (d)} The reason is, that witnesses are extreme- 
 ly apt, from want of observation or memory, to mistake the terms 
 of writings, the effect of which often depends on their precise 
 words ; and that, each document being intended to be read as a 
 whole, its meaning would often be misunderstood if a statement of 
 only a part of it were admissible. Besides, there is ground for sus- 
 pecting that the party tenders the parole evidence, because produc- 
 ing the document would not be equally favourable to his case. 
 
 § 111. This rule of course applies to all those matters which 
 law requires to be committed to writing, as decisions of Courts of 
 record (e), convictions of crimes (/), dispositions of heritage (g), 
 bills of exchange (h), discharges (0, and contracts which the par- 
 ties have stipulated should bo in writing (k). 
 
 And where a document is the of&cial narrative of acts and pro- 
 ceedings which law requires to be so recorded, parole of them is 
 excluded, although they may be simple and easily rempmbered. 
 The instruments of notaries, and messenger's executions, are (with 
 
 (d) 2 AL, 508—1 Phil., 421— Taylor, 283. (e) Edinburgli Shipping Co. v. 
 
 0"-ilvie, 1819, 2 Mur., 137— Dickson v. Ponton, 1824, 3 Mur., 440— Greig v. Edmonstone, 
 1826, 4 Mur., 70— Smith v. Robertson, 1832, 10 S., 829. See Baillie v. Bryson, 1818, 
 1 Mur., 326 ; where the record of a Court was allowed to be read by the clerk of that 
 Court, sworn aa a witness. (/) Miller v. Moffat, 1820, 2 Mur., 323— Fraser, 
 
 1839, 2 Sw., 436—2 Hume, 355. {{/) Stair, 1, 10, 9— Ersk., 3, 2, 2, and 4, 2, 
 
 20. See the chapter on proving obligations regarding heritage, wfra. {h) M'Nab 
 
 i;. Telfer, 1821, 2 Mur., 481— Couselaud v. Cuthil, 1830, 5 Mur., 149. 
 
 (i) Cameron v. Cameron's Tr., 1820. 2 Mur., 234— Gordon /•. Miller, 1838, Macf. R., 
 174. (Jc) Ersk., 3, 2, 4— Bell's Pr., I 2-5 — Tait, 224, 318. See the chapter on 
 
 proving such contracts, infra. 
 
 1 If a letter or private document is to be read to the jury, the whole of it must be 
 read. In that it differs from a jjublic document. " A document which is to be received 
 in respect of its being a public document, returned in jaursuance of some Act of Parlia- 
 ment, or the performance of some public duty, is valid for that reason. If any imper- 
 tinence creeps into it, that is something which does not belong to it, that ought to be 
 exclndcd, and in truth it is no part of it, and ought not to be read with it;" Milne v. 
 Leislor, 1862, 31 L. J. N. S., Excb.. 257. per ('. B. Pollock.
 
 § 118. NOT PUOVEABl.K RY TAKOLK. 93 
 
 very few exceptions) the ouly competent proof of their official 
 acts Q). And the burgh books liavc been held necessary in order 
 to prove the election of the magistrates (m), or to show who were 
 members of council at any time (n). On the same principle the 
 written declaration is the only comx)etcnt proof of the statements 
 made by a prisoner when oxaniincd before a magistrate (o).^ 
 
 § 112. A contract which tlic parties have reduced into writing 
 cannot bo proved by witnesses, although in its own nature it may 
 admit of that kind of evidence. The reason is that the parties hav- 
 ing mutually selected the writing as the proof ami measure of their 
 contract, its existence and terms arc jxirtes confrachis (p). For ex- 
 ample, a -lease for one year (r), and an agreement to ahment a per- 
 son (s), cannot be proved by witnesses ; where they have been re- 
 duced to writing.^ 
 
 § 113, On this principle also, where parties have agreed verbally 
 to be bound by the terms of a certain document, parole of its con- 
 tents is inadmissible, because it was by mutual consent made the 
 measure of their contract, as if they had regularly signed it. Thus 
 in an English case, where a landlord and tenant had agreed verbally 
 
 (Z) Seo the chapters on notarial instruments and messengers' executions, infra. 
 
 (m) Gardner v. Reekie, 1828, 4 Mur., 438. So in Ogilvie v. Magistrates of Edin- 
 burgh, 6th Feb. 1810, F. C, it was held that the minutes of a meeting for electing a 
 deacon of an incorporation of a Roj-al Burgh could not be contradicted by parole ; see § 
 118 (a). in) Black v. Campbell, 1819, 5 Dow, 23. (o) Little v. Smith, 
 
 1845, 8 D., 2G5 ; 1847, 9 D., 737—2 AL, 509, 576. See the chapter on Prisoners' De- 
 clarations, infra. (p) 3 Starkie, 757—1 Greenl., 114— Taylor, 286. 
 
 (r) Monaghan, 1844, 2 Broun, 131. See also Hutchison v. Ferrier, 13 D., 837 ; af- 
 firmed on another point, 1 Macii., 196. («) M'Kellar v. Lambert, 1828, 4 Mur., 
 541. 
 
 2 But it may be proved by parole evidence that a panel was duly cautioned before 
 he emitted his declaration, and was in his sound and sober senses when he emitted it, 
 although these facts are not stated in the declaration or in a docquet ; Lord Advocate 
 V. Hay, 1858, 3 Irv., 181— Lord Advocate v. Macphcrson, 1862, 34 Sc. Jur., 140. 
 
 It would appear that evidence cannot bo received as to what took place in Court at 
 a jury trial, in contradiction of the notes of the presiding judge ; Dobbie v. Johnston 
 and Russell, 1861, 23 D., 1139. Seo § 48, note 4. 
 
 The Register of County Voters is conclusive evidence of qualification ; 24 & 25 Vict., 
 c. 83, § 42. The Certificate of Incorporation of a joint-stock company is conclusive evi- 
 dence that all the formalities requisite prior to incorporation have been complied with ; 
 25 & 26 Vict., c. 89, ? 192. 
 
 3 The question put to a pursuer, who was a witness, '• What was your interest or 
 share in the copartnery between you and your brutiier?" held incompetent; because it 
 had been proved that there was a written contract of copartnery ; Clark r. Clark's Trs., 
 1860, 23 D.. 74.
 
 94 CONTENTS OF WRITINGS § 113- 
 
 to a lease on the terms contained in a prior written lease between 
 the landlord and a third party, it was held that the document must 
 be produced {(). So where a tenant after the expiry of a written 
 lease continues to possess by tacit relocation, the terms of the im- 
 plied contract cannot be proved without the writing {v^. And in 
 an action by the secretary of a society against certain of the mem- 
 bers for pajmient of his salary, where the resolution of the commit- 
 tee under which he had been engaged was contained in a book of 
 which the plaintiff usually had charge, it was held that his know- 
 ledge of, and acting under, the resolution inferred adoption of it as 
 a A\Titten contract, so that he could not prove the terms of his en- 
 gagement ^\'ithout the book (x). On the same principle, in an 
 action for payment of work, where it appears that there had been 
 a written contract between the parties, and the claim is upon an 
 alleged verbal order for extra work relating to the same subject, it 
 is settled in England that the plaintiff must produce the writing, 
 in order to shew whether it includes the work claimed for, and 
 what was the stipulated rate of remuneration (?/), 
 
 § 114. But the existence of a document, inadmissible from 
 want of subscription, will not exclude parole proof of the contract 
 to wdiich it refers, because it indicates only a proposed, not an ac- 
 tual written agreement (z). Yet if rez interventus has followed on 
 and validated an informal document, parole of the terms of the con- 
 tract will be excluded, because the writing is admissible and bind- 
 ing (a).* Where the written contract cannot be used for want of a 
 stamp, its terms may not be proved by parole ; but the writing 
 must be stamped and produced (6).^ 
 
 (<) Turner v. Power, 1828, 7 B. and C, 625, Mo. and Mai., 131, S. C— The docu- 
 ment being on a wrong stamp, was excluded ; and a non-suit was directed in conse- 
 quence ; see infra, § 114, {h). {u) Menzies v. Duff, 1851, 13 D., 1044— But see 
 Tait, 222. [x) Wliitfurd v. Tutin, 1834, 10 Bing., 395. (y) Vincent v. 
 Cole, 1828, Mo. and Mai., 257 ; 3 Car. and Pa., 481, S. C— Buxton v. Cornish, 
 1844, 1 Dow. and L., 585— Jones v. Howell, 1835, 4 Dowl., 176— Parton v. Cole, 1842, 
 6 Eng. Jur., 370; see infra, § 121, {i). (z) Eamsbottom u. Tunbridge, 1814, 2 
 Ma. and Sel., 434— Stevens v. Pinney, 1818, 8 Taunt., 327— Doe v. Cartwright, 1820, 
 3 B. and Aid., 326— Trewhitt v. Lambert, 1839, 10 Ad. and Ell., 470. (a) See 
 the chapter on rei interventus below. (h) Hutchison v. Ferrier, 1857, 13 D., 837 ; 
 (approved of in tlie House of Lords when affirming the judgment on another point, 1 
 
 4 " The rule that you cannot prove the contents of a wiitten instrument by parole, 
 is just as clearly applicable, according to all the authorities, to an instrument that is 
 validated rei interventu, as to an instrument that is originally probative ;" per Lord Jus- 
 tice-Clerk in Clark v. Clark's Trustees, 1800, 23 D., 74, 79. 
 
 5 In a late English case the judge held that an unstamped document embodying the
 
 §110. NOT PROVEABLE BY PAROLE. 95 
 
 § 115. Wlieuover it is maturiul tu pruvc tlie existence or terms 
 of a document of any kind, and not merely the truth of facts which 
 it records, the document itself must be produced, and parole cannot 
 be substituted for it. This (for example) has been held as to the 
 terms of a correspondence (c), and whether it was marked "pri- 
 vate" (cZ), as to the written regulations of a market (e)," written 
 instructions to sailing masters (/), and a written opinion of coun- 
 sel {(j). So it is incompetent to ask a witness what is the amount 
 of property or legacies in a settlement (A), whether a deed contains 
 a clause in certain terms («), or whether a certain vessel is entered 
 in the registry (Ic). 
 
 § 116. On the other hand, where the document is a narrative 
 of facts, its existence will not exclude independent parole proof of 
 these facts (Z), unless they are formal proceedings ox actus legitimi, 
 of which an official WTitten statement is required (m).^ Such pa- 
 role evidence is not tendered in order to prove the contents of the 
 writing, or as a substitute for it ; but the two modes of proof are 
 independent sources of information upon the same raiatter. For ex- 
 ample, births, deaths, and marriages may be proved by parole as 
 well as by entries in the parish register {n). And where a witness 
 was objected to on the ground of infamy, the party who adduced 
 him was allowed to prove by parole that he had undergone his 
 
 Macq., 196)— Ramsbottom v. Mortley, 1814, 2 Ma. and Sel., 445— Buxton v. Cornish, 
 1844, 1 Dow. and L., 586— Turner v. Power, supra, (0— See also Harold v. Pollexfen, 
 1844, 6 D., 1103. (c) Cooper v. M'Intosh, 1823, 3 Mur., 358— Gibson v. Ander- 
 
 son, 184G, 9 D., 1— Queen's case, 1820, 2 Brod. and Bing., 28G, 290. [d) Cooper 
 
 V. M'Intosh, mpra. (e) M'Cracken v. Pearson, 1821, 2 Mur., 553. 
 
 (/) Kitchen v. Fisher, 1821, 2 Mur., 686. {g) Cooper v. M'Intosh, supra. 
 
 (A) Rose V. GoUan, 1816, 1 Mur., 84. (i) Dalzicl v. D. Queensberry's Ex., 
 
 1825, 4 Mur., 14. (Jc) Suadon v. Stewart, 1819, 2 Mur., 63. (I) 8 Starlde, 
 
 786— Taylor, 296. (m) Supra, ? 111. («) 2 AL, 507— Starkie, supra 
 
 — Taylor, supra. 
 
 terms of an arrangement, which arrangement was pleaded by the plaintiff, was no better 
 than waste paper ; and therefore ho allowed parole evidence of the arrangement, and 
 gave judgment fur tlie plaintiff. But the Court of Queen's Bench, on appeal, lield that 
 although the document could not be received in evidence, because it was unstamped, 
 yet the existence of it excluded proof by parole, and they quashed the judgment and 
 ordered a new trial ; Alcock v. Delay, 1856, 4 E. and B., 660. 
 
 6 See Rait v. Primrose, 1859, 21 D., 965. See § 122, note. 
 
 7 A notarial protest is not now necessary to prove the presentment and dishonour of 
 a bill or note in order to preserve recourse against the drawer or indorser. They may 
 be proved ^roK< de jure to tJie effect of preserving such recourse ; 19 & 20 Vict., c. 60, 
 I 13.
 
 96 CONTENTS OF WRITINGS § 116- 
 
 liunislnncut (iinprisonmoiit), althongli the fact was entered in the 
 books of the jail (o). So the fact that a witness had stood on tlie 
 pillory may be proved by parole, although the extract conviction 
 is the only admissible proof that it was for a crime inferring in- 
 famy (p). 
 
 § 117. On this principle the evidence emitted by a deceased 
 witness in a former trial of the cause, may be proved by the per- 
 sons who heard it, although he may have also emitted a written de- 
 position (r), and although his evidence may have been taken down 
 by a short-hand writer (s) ; while, on the other hand, the deposi- 
 tion of a deceased witness taken on commission is not excluded in 
 consequence of his deposition in Court on a former trial being ex- 
 tant in the judges' notes (0- Thus also in a prosecution in Eng- 
 land, in which the depositions do not require to be taken in writing, 
 parole of what the witnesses said is received, w^ithout producing a 
 note which the magistrate or clerk of Court had made of it at the 
 time («)• Oil lliis ground also, where a witness depones that he 
 observed certain facts, and wrote a full account of them in a letter 
 to any one, his oath is the pro])er evidence of them ; and the letter 
 does not require to be produced, unless the party wishes to prove 
 its terms {x). So where a witness swore that he had a conversa- 
 tion with a person since deceased, who referred to a book to refresh 
 his memory on a fact otherwise known to him, the witness was al- 
 lowed to repeat that person's statement as to the fact, without pro- 
 ducing the document (y) ; and it is never necessary to put in evi- 
 dence the memorandum which a witness merely uses for the pur- 
 pose of refreshing his memory (z).^ 
 
 § 118. In some cases parole proof of the proceedings of meet- 
 ings was excluded, on the ground that they could only be proved 
 
 (o) Aitchison v. Patrick, 1836, 15 S., 360. (/-') Dean's case, 1729, 2 Hume, 
 
 355. (r) Mackenzie, 1827, Syme, 158— Tod v. Winclielsea, 1828, 3 C. and P., 
 
 887. (s) Taylor, 354. The same rule applies when the oath is proved in a 
 
 charge of perjury ; Monaghan, 1844, 2 Broun, 131. (0 Willox v. Farrell, 1848, 
 
 10 D., 807. ' (h) R. v. Tarrant, 1833, 6 Car. and Pa., 182— R. v. Pressly, 1833, ib., 
 183— Robertson v. Vaughton, 1838, 8 Car. and Pa., 252— Jeans v. Wheedon, 1843, 2 
 Mo. and Rob., 486. (x) Forteith v. E. Fife, 1820, 2 Mur., 468. 
 
 (y) Oliver, 1827, Syme, 224. (z) Dalison v. Stark, 1803, 4 Esp., 163— R. v. 
 
 Tarrant, 1833, 6 Car. and Pa., 182— R. v. Pressly, 1838, ib., 183— Maugham v. Hub- 
 bard, 1828, 8 B. and C, 14.8 
 
 8 Nor can such a document be recovered by a diligence ; Livingstone r. Dunwoodie, 
 1860, 22 D., 1333.
 
 § 120. NOT PROVEABLE BY PAKOLE. Ul 
 
 by the minute prepared ou tlie occasion (a). But the proi)er mode 
 of proving such matters is by the oaths of persons who were pre- 
 sent, who may use the minute to refresh their memories, if they 
 were engaged in its preparation (b).^ This rule applies to proceed- 
 ings of directors of joint-stock companies ; the Act w^hich allows 
 these to be proved by the signed minutes having been designed for 
 extending and not for limiting the mode of proof (c). It \^uld 
 seem, however, that when the minutes of proceedings form part of 
 the records of a court of law, as minutes of meetings of creditors 
 under the Sequestration Acts, they are the only admissible proof of 
 the res gestae ((?). 
 
 § 119. Wo have already seen that when a question arises be- 
 tween a society and a third party as to the terms of a contract, and 
 where his aduption of the contract as noted in the society's minute- 
 book is to be inferred from the circumstances, parole of the terms 
 of the transaction is excluded (e). In such a case tlie question is 
 not as to the truth of the minutes, but as to the terms of the con- 
 tract which they set forth. 
 
 § 120. As contrasted \\dth the case last noticed, it has been 
 
 (a) So ruled as to the proceedings of a senatus academicus ; Hamilton v. Hope, 
 1827, 4 Mur., 239— and of road trustees ; M'Ghie v. M'Kirdy, 1850, 12 D., 442. The 
 quasi public character of such bodies seems to account for these decisions, which arc, 
 with deference, thought to be erroneous. See also Ivison v. Edinburgh Silk Co., 1846, 
 9 D., 1039— and § 111, (m). (6) Kers v. Penman, 1830, 5 Mur., 145— Arneil 
 
 V. Robertson, 1848, 5 D., 400— Mathers v. Lawrie, 1849, 12 D., 433— "Wilson v. Glasgow 
 & S. Western Co., 1851, 14 D., 1— Northern Rail. Co. v. Inglis. 1851, 13 D., 1315. 
 
 (c) Northern Ry. v. Inglis, supra. This decision was pronounced on the provisions 
 of the English Act of 8 Vict., c. 16, gg 98, 99, which are similar to those of the Scotch 
 Act 8 Vict., c. 17, § 101.10 (d) Smith v. Kemp, 1828, 4 Mur., 404. See also 
 
 § 111 (wi). (e) Whitford v. Tutin, 1834, 10 Bing., 395, supra § 113. Compare 
 
 with this case Hill v. Lindsay, 1847, 10 D., 78. 
 
 9 In a case regarding the proceedings of a provisional committee of a projected rail- 
 way, the Lord Justice-Clerk (Inglis) observed, " Minutes of meetings by parties who meet 
 to deliberate about some project in which they have a common interest, are not evidence 
 at all. This was settled in the case of Macartney v. Mackenzie, which has ever since 
 been followed as an authoritative judgment. But they may be taken as adminicles of 
 evidence, and may, along with other e\-idence, be brought forward to prove the pro- 
 ceedings at the meetings. I am not speaking of meetings of corporate bodies, or of any 
 thing of that kind, but of meetings of parties met to deliberate about some project 
 which they have in common. A person may bo put into the box to depone to the accu- 
 racy of a minute of such a meeting ; but the minute itself is no evidence at all. and 
 does not even prove the presence at the meeting of anybody who does not subscribe it. 
 But by making a party to the minute a witness, it may be established who were pre- 
 sent at the meeting"; Johnston v. Scott, 1860, 22 D., 393, 402— Macartney v. Macken- 
 zie, 1831, 5 W. and S., 604. 
 
 10 19 and 20 Vict., c. 47. § 40. 
 
 G
 
 98 CONTENTS OF WRITINGS § 1'20- 
 
 Lelcl in England that parole of the terms of resolutions which have 
 been ostensibly read at a public meeting is admissible in proving 
 its proceedings ; because the question is not what does the paper 
 contain, but what was the resolution proposed verbally to the 
 meeting ; and because the speaker may have materially deviated 
 from the terms of the paper in his hand (/). On the same prin- 
 ciple, in a trial for administering an unlawful oath, the terms of it 
 were allowed to be proved by a witness, who stated that he believed 
 the accused read the words from a paper, which was not pro- 
 duced (g). 
 
 § 121. The rule thus illustrated only excludes parole evidence 
 of matters set forth in the document, and therefore collateral facts 
 relating to the same transaction may be proved by witnesses, if in 
 their own nature they admit of that kind of proof. For'ex ample, 
 where a written contract of copartnery only authorised certain 
 branches of trade, parole was admitted to prove that the partners 
 had homologated transactions by the directors in another branch (h). 
 So in an English case, where there had been a written contract 
 for repairing the inside of a house, and improvements had 
 been made on the outside, the contractor suing for the latter as 
 under verbal orders, was not rec[uired to produce the written 
 ao-reement (i). Thus also where a tenant had possessed for several 
 years under a missive, which did not mention the duration of the 
 lease, but raised the inference that it was for more than one year, 
 the Court of Session allowed that part of the contract to be proved 
 by witnesses (k). And parole proof of the duration was admitted 
 in England, where the tenant held under written rules, which were 
 silent on the point (/)." 
 
 On the same principle, a tenant may prove by parole the fact 
 of his occupation, where that is relevant to the case, because the 
 terms of his written lease are not involved (m). And one who sues 
 
 (/) R. V. Sheridan and Kirwan, 1811, 31 How St. Tr., 673— R. v. O'ConneU, 1843, 
 separately reported by Armstrong and Trevor, 235, 237. {ff) R. v. Moors, 1805, 
 
 6 East., 421, note. (h) Maxton v. Brown, 1839, 1 D., 367. (i) Reid v. 
 
 Batte, 1829, Moo. and Mai., 413. Compare with this case those noted above, § 113, (y). 
 
 (/fc) M'Leod V. Urquhart, 1808, Hume, D., 840. See also M'Rorie v. M'Whirter, 18th 
 December 1810, F.C. ; and Pollock v. M'Andrew, 1828, 7 S., 1891 ; infra, g 166— See also 
 Duke of Athole v. Spankie, noted in Hume D., 786. (l) Hay v. Moorhouse, 
 
 1839, 6 Ring. New C, 52. {m) R. v. Holy Trinity, 1821, 7 B. and C, 611— Doe 
 
 V. Harvey, 1832, 8 Bing, 239, per curiam— Hamilton v. Hamilton, 1825, 4 Mur., 8— See 
 Hutchison v. Ferrier, 1851, 13 D., 837 ; 1 Macq., 196. 
 
 I 
 
 n The date of an undated bill or note may be proved by parole. But a bill or note 
 issued without a date will not authorise summary diligence ; 19 and 20 Vict., c. 60, § 10.
 
 § 122. NOT PHOVEABLE BY PAROLE. 99 
 
 certain persons as members of a copartnery may show by parole 
 that they acted as sucli, and ho is not IjounJ to put in evidence the 
 written contract of copartnery ; because its provisions are coUateral 
 to his ground of action (n). On this principle also, where jjrima 
 facie evidence of ownership of a vessel is sufficient, as in an action 
 of damages for wrongous arrestment, it is not necessary to produce 
 the registry (o).^^ 
 
 § 122. From these rules it follows that a party who objects to 
 parole, on the ground of its involving the terms of a writing, must 
 shew that the document embraces the facts which the witness is 
 tendered to prove ; and the parole proof will not be rejected merely 
 
 (n) Alderson v. Clay, 1816, 1 Starkie R., 405. (o) Snadon v. Stewart, 1819, 
 
 2 Mur., 67. See also JohnstoDe, 1829, 2 Al., 507 ; infra, ? 132. 
 
 12 The following recent decisions will farther illustrate the principle treated of in the 
 text : — 
 
 A tenant under a written lease, by which he had undertaken to keep the fences in 
 his farm in good tenantable condition, pleaded in defence that when he signed his lease 
 his landlord had promised to fence the farm, and that he had not fulfilled the promise. 
 Held that it was incompetent to prove the defence, because it was an attempt by parole 
 evidence to engraft a condition on a written lease ; Macgregor r. Strathallan, 1862, 
 24 D., 1006. 
 
 A was the drawer and B the acceptor of a bill for accommodation of C. D, as 
 agent for all the jmrties, drew out a minute of agreement, which was duly executed ; 
 the agreement set forth that A was to retire the bill to the extent of one-fourth of 
 the sum in it, and B to the extent of three-fourths ; and that it was agreed that C 
 was to give A an heritable security for the one-fourth, and B an heritable secu- 
 rity for the three -fourths ; and that C had accordingly executed these bonds. D, the 
 agent, advanced the money in the bill, and it was indorsed and handed to him. B 
 afterwards, without A's knowledge, assigned to D the heritable security granted to him 
 by C. B and C both became bankrupt, and D, the agent, charged A on the bill. A 
 suspended, and averred that he had instructed D, as his agent, to procure from C a full 
 security for all his (A's) liabilities under the bill, and that D had failed to fulfil these 
 instructions, inasmuch as he had procured a security to the extent of one-fourth of the bill 
 only ; and he farther pleaded, that, in taking from B the assignation to his security, D 
 had violated tlie spirit of his instructions and the understanding of the parties. D 
 pleaded that his charge could be resisted only by proof of no value by his writ or oath ; 
 and that the final agreement of parties was to be found in the agreement only, in which 
 it was stated fiiat the security to be given by C to A was to cover only the one-fourth 
 of the amount in the bill. But the Court held, that as A's plea resolved, not into a de- 
 fence of no value, but a defence grounded on D's neglect or unskilful performance of 
 professional duty, it might be proved jarowi de jure; and that his averment as to the in- 
 structions given to his agent D was an averment of a contract totally distinct from that 
 embodied in the minute, and that proof of it was therefore not excluded ; M'Alister v. 
 Gemmel, 1862, 24 D., 956. This judgment has been affirmed on appeal, March 1863. 
 
 In an English case, evidence to show, contrary to the terms of a deed, that it was 
 agi-eed that the consideration was not to be paid in money but satisfied by delivery of 
 goods, was rejected ; but evidence was admitted to show that in point of fact goods were 
 accepted in satisfaction of the consideration; Smith v. Battems, 1857, 26 L. J., Exch., 232. 
 
 g2
 
 100 CONTENTS OF WETTINGS § 122- 
 
 on suspicion of that being the case (^ ). Accordingly in an Eng- 
 lish case the Court refused to stop the examination of a witness, 
 who stated that a written agreement relating to the matter in dis- 
 pute had been produced in a former trinl between the same plain- 
 tiff and defendant ; but that he did not know its contents, or who 
 were the parties to it (r). On the other hand, if a witness is asked 
 whether a certain statement was made, the counsel on the other 
 side may require that he be first asked whether it was made in 
 WTiting, and if the witness answers that it was, the examination 
 will not be allowed to proceed (s).^^ 
 
 § 123. The rule thus considered not only excludes parole of 
 the terms of a writing as a whole, and a detailed statement of its 
 contents, but also every question which involves a narrative of any 
 matter which the document records. Thus it has been held incom- 
 petent to ask a witness what is the import of a correspondence (t), 
 or the nature of an action (?<), who is the granter of a written 
 lease {x), or the acceptor of a bill (?/), or whether decree was ob- 
 tained in a certain action (z), or what is the extent of jurisdiction 
 under the titles of a burgh (a), whether certain names are in 
 
 (p) This principle is illustrated by the case of Thom v. N. British Bank, 1850, 13 
 D., 134, st/pra. ? 77. (r) Wood v. Morris, 1810, 12 East., 237. (s) The 
 
 Queen's case, 1820, 2 Brod. and Bing., 292. (f) Gibson v. Anderson, 1846, 9 
 
 D., 1. (w) Stewart r. Buchanan, 1816, 1 Mur., 38. (x) Innes v. Lord 
 
 Peterborough's Exec, 1828, 4 Slur., 433. {>/) M'Nab v. Telfer, 1821, 2 Mur., 
 
 481. But parole seems admissible to prove who retired a bill ; S. C. 
 
 (z) Dicbsons v. Ponton, 1824, 3 Mur., 440. (a) Johnstones v. Mag. of Kil- 
 
 renny, 1828, 6 S., 620. 
 
 13 At the trial of an action for relief of a call on bank shares, on the ground of a sale 
 of the shares, by intervention of stock-brokers, by the pursuer to the defender, the ques- 
 tion occurred whether a sufficient transfer of the shares had been offered to the defen- 
 der. The pursuer's stock-broker deponed, " There are printed rules as to transfers, and 
 these guide our jDractice ;" and in respect of the existence of these printed rules, the 
 defender objected to the question. Whether the transfer tendered was " in ordinary terms 
 and according to your practice, and was it tendered according to your practice ?" But 
 the Court, afiSrming the ruling of Lord Ardmillan, the presiding judge, held that the 
 question was competent, because, although it was proved that these were rules, it had 
 not been proved that these rules regulated either the terms of transfers or the mode of 
 tendering them. The Lord President (M'Neill) was not prepared to say whether, even if 
 there had been such proof, j^arole evidence of practice would have been excluded ; Eait v. 
 Primrose, 1859, 21 D., 965. But where, in a question as to a partnership between the 
 pursuer and her brother, it was proved that there had been a written contract of co- 
 partnery, not probative, but validated by rei interventiis ; the question, "What was your 
 share in the copartnery ?" was held incompetent, though there had been no express 
 proof that the interests of the partners was provided for in the contract ; Clark v. Clark's 
 Trustees, 1860, 23 D., 74.
 
 § 125. NOT FllOVEABLE BY PAKOLE. 101 
 
 the commission of tlio peaco (?>), or whether a certain vessel in 
 entered in the registry (c). So parole is admissible to prove when 
 a certain apprenticeship was entered on, but not the date of the 
 written indenture (d). A witness may be asked whether a letter 
 was written and sent by one person to another, and whether the 
 witness made a copy of it, but not what the letter or copy contain- 
 ed (e) ; and it is competent to inquire whether the witness was 
 asked to become cautioner for a party, and agreed to do so, but not 
 whether he took from the principal debtor a written obligation in 
 certain terms (/). A witness may be asked if a certain action 
 was brought, but not by whom it was brought, when that is mate- 
 rial to the issue {(j) ; and it is competent to examine him as to 
 wdiether certain operations were discontinued, but not to ask 
 wdiether they were interrupted by an interdict (h). Nor may a 
 witness even be asked what he stated in certain letters written 
 by himself, wdiich might have been produced (/). 
 
 § 124. A document, however, has frequently to be mentioned 
 to a witness with the view of asking him a competent question re- 
 garding it, as in some of the cases noticed in the preceding 
 section. When this is done, the document should be described 
 generally, so as to identify it to the witness ; but the particular 
 point of it which is involved in the issue shpuld, if possible, be 
 avoided. The Court will not allow the question to be put in a form 
 which involves a statement of the contents of the document ; as 
 where a witness is asked whether he wrote a letter in certain 
 specified terms, or whether he carried a letter agreeing to refer 
 certain matters to arbitration {J). 
 
 § 125. In general the exclusion of parole where there is written 
 evidence applies to examinations in cross as well as in chief (A'). 
 But when the cross-examination only follows up the examination 
 in chief, questions, otherwise inadmissible, will be allowed, if they 
 are necessary in order to prevent the jury drawing a wrong infer- 
 ence as to a document to which the witness has referred. Thus one 
 who deponed that he received a certain decree was allowed to be 
 
 (6) Cooper v. Mackintosh, 1823, 3 Jlur., 359. (c) Suadon v. Stewart. 1819, 
 
 2 Mur., 63. {d) Spence v. Howden, 1819, ib., 109. (c) Miller v. Moffat, 
 
 1820, 2 Mur.. 318— Wliyto v. Clark, 1817, 1 Mur., 241. (/) Clark v. Thomson, 
 
 1810, 1 Mur.. 100. (y) Smith v. Puller, 1820, 2 Mur., 345. {h) Welsh 
 
 V. Stewart, 1818, 1 Mur., 404. (t) Aitchison v. Robertson, 1840. 9 D., 15. 
 
 (j) Peter v. Terrol, 1818. 2 Mur., 30. (k) Greig v. Kduionstoue, 182(), 4 
 
 Mur., 70— liodc V. Gollan. 1810, 1 Mur., 84. But sou M'Cracken v. Pearson, 1821. 2 
 Mur., 653.
 
 102 CONTENTS OF WRITINGS § 125- 
 
 asked its date (I), and a witness wlio said Lo had discovered certain 
 heritable bonds over an estate, was allowed to be asked whose 
 snbscriptions they bore (m). On the same principle, where a party 
 objected to a ^vitness being asked on re-examination if he had lodged 
 in Court a minute agreeing to make a certain payment in conse- 
 quence of consent of the parties, the question was admitted with a 
 view to explaining an answer given on cross-examination (n). 
 
 § 126. When parole is inadmissible on account of there being 
 written evidence of the facts, a note taken by a witness who heard 
 the document read is incompetent (o). 
 
 § 127. It is generally pars judicis in the Court, or in the com- 
 missioner taking the proof, to prevent parole evidence of the con- 
 tents of documents from being received (p ). But while this ought 
 to be observed when the matter is important to the issue, or in- 
 volves a detailed statement of the terms of a document, it ought 
 not to be rigorously enforced when the fact is incidental and easily 
 remembered. 
 
 § 128. There are a few excexjtions to the rule which has thus 
 been considered : — 
 
 "Witnesses are admissible to prove a custom either of a number 
 of persons or of an individual, although each instance stands upon 
 writing, and could not be proved as a specific fact except by writ- 
 ing. For example, the general practice over an estate, to require 
 the tenants to reside on their farms, was allowed to be proved by 
 witnesses, although parole evidence of a clause of residence in an 
 individual lease was rejected (r). The general price of freeholds 
 in a county at a particular time was allowed to be proved by 
 parole ; whereas the price paid in a particular instance could not be 
 shown without the deed of sale (s). And although the premium 
 in a certain contract of insurance cannot be proved without the 
 policy, parole of the general rate of insurance at the time was held 
 to be competent (f). On the same principle, witnesses were re- 
 ceived in an English case to prove that William Spencer was in the 
 habit of accepting bills drawn on James Spencer and Company (u). 
 And there is an old Scotch case where it was held competent to 
 
 (l) Cleland v. Weir, 1835, 13 S., 1143. (m) Pearson v. Walker, 1835, 13 S., 
 
 1138. (n) Fowler v. Paul, 1821, 2 Mur., 440. The report does not mention the 
 
 answer given on cross-examination. (o) Wilson v. Kirkwood, 1822, 3 Mur., 199. 
 
 (p) Morton v. Hunter and Co., 1830. 4 AV. S., 379, 388. (r) Dalziel v. D. 
 
 Queensberry's Execr.s., 1825, 4 Mur., 14. (s) Graham »•. Westenra, 1827, 4 
 
 Mur., 294. (0 Bertrams r. Barry. 1818. 1 Mnr.. 345. (»/) Spenrer r. 
 
 Billing, 1H12, 3 Camp.. 310.
 
 g 130. NOT I'ROVEABLE liY PAROLE. lOP. 
 
 prove by witnesses tliat a certain notary was in the practice of 
 giving sasines as Slierill'-clerk (lo). 
 
 § 120. It would seem that the rule wliirli excludes parole of 
 the contents of dociinicnts is also relaxed, where the evidence is the 
 result of an inspection of numerous books or i>apers, which could 
 not be conveniently cxiiniine'l in Court (x). But while matters of 
 pure fact — as a mode in wlii<h books were kejjt and their!being 
 vitiated (i/), the state of accounts between the parties (2), the sol- 
 vency of a party at a certain date (a), and tlie like— may be proved 
 in this manner, a witness will not be allowed to state the impres- 
 sion wdiich he lias received as to the conduct or feelings of 
 individuals to whom the papers relate (6). The reason for this 
 distinction is, that such matters do not require to be investigated 
 by a skilled witness, but fall pecuHarly within the province of the 
 jury who should be kept from the risk of bias by the opinion which 
 a witness may have formed (perhaps erroneously) upon the question. 
 Nor is such evidence of impression admissible in regard to docu- 
 ments which the witness has destroyed ; the proper course in that 
 case being to prove the contents of the documents by secondary 
 evidence, and leave the jury to draw their own inference^ from 
 them (c). 
 
 § 130. A witness may be asked whether he has been convicted 
 of a crime which affects his credibility, although the answer in- 
 volves the terms of a judicial record {d). The reason is, that one 
 who has examined a witness on the footing of his evidence being 
 credible cannot plead that it is incredible on a point so simple and 
 so completely within the knowdedge of the witness. Besides, the 
 party who states the objection can seldom be prepared with wTit- 
 ten evidence to prove it. But, when infamy was pleaded under 
 the former law as a ground for excluding the wdtness, it could not 
 be proved without the extract conviction ; otherwise an unwilling 
 witness might have escaped from giving evidence, by pretending 
 that he had been convicted of a disqualifying crime (e). 
 
 (w) L. Huntly c. L. Forbes, 1019, M., 12,449. (i) 2 Al., 509—1 Starkie, 
 
 502—1 Phil., 483— Taylor, :i25. (>/) Campbell c. Cuini.bell. l»o4. 12 S., 573. 
 
 (z) Roberts v. Doxon, 17'.»T, I'ou. C, 83. (o) Meyer v. Seften, 1817, 2 Starkio 
 
 R., 274. In Rowe v. brenton, 1828, 3 Mtin. and Ry., 212, a witness was allowed to be 
 asked the result of bis examination of certain old records, in order to prove that they 
 corresponded in substance witii ouo which had been read. (6) Topliam v. 
 
 M'Gregor, 1844, 1 Car. and Kir., 320. (c) Topham v. M'Grcgor, supra. 
 
 {d) Henderson, 1838, Bell's Notes, 26G — Thomson, 1842, ib. — Johnstone, 1845, 2 
 Broun, 401— Ca.'^es in Bell's Notes. 255. (0 2 Hume, 855—2 Al., 443— Tait. 
 
 34fi. See contra, S,-ott r. M-(r,ivin, 1821, 2 M\ir., 4W— Smith, 1829. 1 1>.\ and Mid.. 183.
 
 104 CONTENTS OF WRITINGS § 130- 
 
 In England, the relaxation of the strict rule in examinations in 
 imtialihus (on the voire dire) has been more general : so that if the 
 witness discloses any document affecting his competency, he may 
 be examined and cross-examined as to its contents (/), unless the 
 WTiting is in Court ; in which case it must be produced in order to 
 prove its terms {g). Questions of this nature arose chiefly upon 
 the objection of interest, before recent statutes had abolished that 
 ground of exclusion. 
 
 § 131. The patent nature of the fact that a person holds a 
 public office, and the strong presumption arising from the undis- 
 turbed exercise of his functions, render it unnecessary to prove the 
 fact by his written appointment {li). Where, however, his right 
 is put directly in issue, the Avritten title requires to be produced.^* 
 
 § 132. A witness may be examined upon o, factum proprium of 
 a simple nature and arising incidentally in the cause, although 
 there may be written evidence of it, for there is little or no risk of 
 his being mistaken upon such a matter (^). Thus a witness may 
 be asked how long he was at home on furlough, without the party 
 producing the regimental books {j) ; and whether he agreed to ac- 
 cept, and received a certain sum per pound as composition for his 
 debt (/t-); and whether an action was raised by him or against him 
 for a certain claim (J). So in a prosecution for theft, where the 
 proprietor of the stolen goods has right to them under a written 
 title, his oath is competent evidence of ownership, both on the 
 ground thus noticed and because it is enough for the prosecutor to 
 prove that the goods were in the lawful possession of the person 
 from whom they were stolen {m). In all such cases, however, the 
 
 (/) Taylor, 326—1 Phil., 154. {g) Taylor, ib.— Phil., ib. {h) 2 Al., 
 
 507— Banbury v. Matthews, 1844, 1 Car. and Kir., 380—1 Phil., 432— Taylor, 112, 324. 
 But see § 111, (w). (?) See svpra, § 130. {j) Millar v. Fraser, 1826, 4 
 
 Mur., 110. (^) Combe v. Hossack, 1826, 4 Mur., 52. {I) Dicksons v. 
 
 Ponton, 1824, 3 Mur., 440 Smith v. PuUer, 1820, 2 Mur., 345. (?») Jolinstone, 
 
 1829, noted in 2 AL, 507. 
 
 1* In a proceeding for recovery of Crown-rents, which depended for its validity on a 
 certificate which required, under statute, to be granted by an officer of the revenue, it 
 was held proved that the party who signed the certificate was an officer of the revenue, 
 although his appointment was not produced, and although he was not examined as a 
 witness. In a question of fact whether a person who performs an act, was entitled to 
 perform it as a public officer, it is sufficient to show that he was de facto in the exer- 
 cise of the office ; Borthwick v. Lord Advocate, 1862, 1 Macpherson Rep., 94, per L. J.-C. 
 Inglis— Lord Adv. v. M'Leod, 1858, 3 Irv., 79— Lord Adv. ;•. Smith and Milne, 1859. 
 3 Irv., 507, ante, § 16, note 24.
 
 § 131 NOT PKOVEABLE BY PAROLE. 105 
 
 strict rule should only be relaxed where the fact arises incidentally, 
 or in a subordinate branch of the cause. Where it is the question 
 directly in issue, the appropriate written evidence of it will be re- 
 quired (w). 
 
 § 133. It has been held in England that in trials fur conspi- 
 racy, rioting, and the like, the inscriptions and devices on the ban- 
 ners displayed by the conspirators may be proved by parole (o). 
 The reason is, that these inscriptions are the public expression of 
 the objects of the assembly ; they have rather the character of 
 speeches than writings, and are short and easily remembered; where- 
 as, if the banners themselves had to be produced, it would often be 
 necessary to trace them through a number of different hands ; and 
 that investigation (which would involve parole of their contents by 
 way of identification) would, in general, be impossible from the na- 
 ture of the case. On the same principle, in the trial of Daniel 
 O'Connell, tlie prosecutor w\as allowed to prove by parole the terms 
 of printed placards, which had been posted up in the locality of 
 an assemblage on the day on which it took place, and the mottoes 
 on an arch tlirown over one of the streets ; and the objection that 
 it had not been shewn by whom the placards on the arch had been 
 put up was repelled. But the evidence would not have been re- 
 ceived unless there had been proof that there w^as an assemblage of 
 people on the occasion (p). 
 
 The rules as to admitting parole of lost documents are consider- 
 ed afterwards (r). 
 
 CHAPTER IV. — OF THE ADMISSIBILITY OF COPIES AND EXCERPTS. 
 
 § 134. Another application of the rule which requires the best 
 evidence is, that when a document is in existence and accessible, it 
 must be produced, and a copy or excerpt from it wall not be ad- 
 mitted (s). The ground for this strictness obviously is, that copies 
 are often inaccurate from inadvertence, that admitting them would 
 afford opportunities for misleading the jury, and that a party is most 
 
 (n) 2 Al., 507. (o) R. v. Hunt, 1820, 3 B. and Aid., 666— Sheridan and Kir- 
 
 wan's case, 1811, 31 How St. Tr., 673— Redford r. Birley, 1822, 3 Starkio R., 'JO— 3 
 Starkie Ev., 1174 — Taylor, 207. (p) R. v. O'Couuell, 1843, separate report, 
 
 235-237. But see R. r. Coppul, 2 East ., 25, (r) Infra, i \iZ. et seq. 
 
 («) Burnett. 598—2 Al., 505- Taylor, 280.
 
 lOG ADMISSIBILITY OF COPIES AND EXCERPTS. § 134- 
 
 likely to teuder such secondary evidence in order to gain an impro- 
 per advantage from a discrepancy between it and the original docu- 
 ment. Excerpts are subject to the additional objection that, being 
 selected ex parte, they are likely to create a different impression 
 from that which the whole document -would produce. For these 
 cogent reasons the rule has been applied strictly, so as to exclude 
 not only copies made incidentally, but also those which are authen- 
 ticated by notaries {t), or sworn to be correct {u) ; and even copies 
 taken before a Commissioner of Court are rejected (x), except in 
 the special cases noticed afterwards. A party will hot render the 
 copy admissible by tendering the principal in order that they may 
 be collated (?/) ; because the principal should have been lodged in 
 time for inspection, as well as for comparison with the copy {z)} 
 
 % 135. In regard to admissibility, all signed duplicates are 
 principals (a). So the statutory duplicate of the minute-book in 
 a sequestration is admissible to prove the proceedings (6), but 
 neither of the duplicates is evidence of documents engrossed in 
 them (c). So where the possession in issue has followed upon a 
 copy, as where a tenant has possessed on a copy of his lease, the 
 copy of it is admissible, being his title of possession {d). But 
 where the question was, whether certain deeds bearing the signa- 
 ture of the late Earl of Fife (who was blind) were genuine, a char- 
 tulary which had been prepared and kept by the grantor's man of 
 
 {t) Stair, 4, 2, 8— Tait, 214. {u) Clark v. Thomson, 1816, 1 Mur., 163— 
 
 Paris V. Smith, 1823, 3 Mur., 336 — South Metropolitan Gas Co. v. M. Lotlilan, 1838, 
 Macf. Pi., 13— Kay «. Bodger, 1832, 10 S., 831— Summers v. Fairservice, 1842, 4 D., 
 347. In Stevenson v. Macpherson, 1827, 4 Mur., 275, a copy admitted on record to be 
 a true copy was rejected. This decision would probably not be repeated. In Clark v. 
 Thomson, supra, the admissions in the pleadings were not allowed to be read as proving 
 the contents of a bond. But an opposite decision was pronounced in Pearson v. "Walker, 
 183.5, 13 S., 1138. (x) Henderson v. Robb and Others, 1838, Macf. K., 171 ; per 
 
 Lord President in Thom v. N. British Bank, 1850, 13 D., 184. Sec infra, i 140. 
 
 (y) Henderson v. Kobb, supra — Carricks v. Saunders, 1850, 12 D., 922. 
 
 {z) In civil jury trials all documents must be lodged eight days before the trial ; Act 
 of Sederunt, 16th Feb. 1841, § 19.i (a) E. v. Castleton, 1795, 6 Durf. and East., 
 
 236 — Alivon v. Furnival, 1834, 1 Crorap. Mee. and Roscoe, 292— See this strikingly il- 
 lustrated in the E. Strathmore v. E. Strathmore's Tr., 1837, 15 S., 449 ; affirmed 1 Rob. 
 Ap., 189. {b) Hunter v. Carson, 1822, 3 Mur., 232— Stephenson v. Macpherson, 
 
 1827, 4 Mur., 275. (c) Smith v. Mackay, 1835, 13 S., 323. 
 
 {d) Williamson v. Eraser, 1834, 12 S., 466— Carruthers v. Thomson, 1836, 14 S., 
 464. See Whitford v. Tutin, 1834, 10 Bing., 395. 
 
 1 Production of extracts of recorded deeds, eight days before the trial, is sufficient 
 ::ompliance with the Act of Sederunt; Maclean v. Marlean's Trustees, 1861, 23 D., 1262.
 
 § 136. ADMISSIBILITY OF COPIES AND EXCERPTS. 107 
 
 business was liuld inadmissiLlo to prove tliat liis Lordship had 
 granted a certain deed there recorded, and liad signed it with his 
 own hand (e). Wlien deeds are executed in counter-part, each 
 party signing the copy delivered to the other, eacli copy is in Eng- 
 land held to be primary evidence against the subscriber (/), but 
 only secondary evidence of the terms of the counter-part ((/). In 
 an old Scotch case where both counter-parts bore a certain margi- 
 nal addition, which in the copy held by A was signed by him, and 
 bore a faint trace of another signature, and which in the copy lield 
 by B was signed by A l)ut not by B himself, the Court sustained it 
 against B, on the ground that his holding the copy with the addi- 
 tion uncancelled shewed in the circumstances that it formed part 
 of the contract (7/).^ 
 
 § 130. It is hold in England that the bought and sold notes 
 w^hich a broker delivers to the contracting parties are primary evi- 
 dence, and must be produced or accounted for before recourse can 
 be had to the broker's book, from which the notes were made 
 up (i). When one party wishes to enforce the contract, it is enough 
 for him to put in evidence the note which he holds ; whereupon the 
 other party must prove any discrepancy which he may allege to 
 exist between it and the other note (k). It is still an open question, 
 whether in the event of disagreement between the notes the 
 broker's book can be resorted to (I). It may be used where notes 
 were not exchanged (w). 
 
 (e) E. Fife v. E. Fife's Tr., 181G, 1 Mur., 107. (/) Roe v. Davis, 1806, 7 
 
 East., 363— Paul v. Meek, 1828, 2 Y. and Jer., 116— Burleigh v. Stibbs, 1793, 5 Durf. 
 aucl E., 465— Taylor, 302. (ff) Doe v. Ross, 1840, 7 Mee. and Wei., 102— Hall v. 
 
 Bull, 1841, 3 Scott New Ser., 577— Munn t-. Godbold, 1825, 3 Bing., 292, 11 B. Moore, 
 49, S. C. Being secondary evidence, it will be admitted although unstamped ; Munn 
 V. Godbold, supra — Paul v. Meek, supra. As to stamps for counter-parts of leases, see 
 16 and 17 Vict., c. 59, J 12. (A) Smith v. D. Gordon, 1701, M., 16,987. 
 
 (i) Goom V. Aflalo, 1826, 6 B. and C, 117— Thornton v. Meux, 1827, Moo. and Mai., 
 43— Ilawes v. Forster, 1834, 1 Mo. and Rob., 368— Taylor, 299. (k) Hawes v. 
 
 Forster, svpra. {I) See Townend v. Drakeford, 1843, 1 Car. and Kir., 20 — 
 
 Gregson v. Ruck, 1843, 4 Ad. and El., New Ca., 737, 747— Thornton i;. Charles, 1842, 
 9 Me. and Wei., 802 ; contra Baron Parke's opinion in the case last noted. See Taylor, 
 300. (m) Townend v. Drakeford. supra— ?ilts v. Beckell, 1845, 13 Me. and 
 
 Wei., 746, per Baron Parke. 
 
 ' See Grant v. Sinclair, 1861, 23 D., 796, in which, when two copies of a lease were 
 made, neither of them duly attested, and the one was kept by the landlord and the 
 other by the tenant, the landlord's copy bore that there was to be a break at the end of 
 seven years, and the Court indicated an opinion that that meant a break optional to 
 either party; but the tenant's copy, which in some other respects differed from that of
 
 108 ADMISSIBILITY OF COPIES AND EXCERPTS. § 137- 
 
 § 137. When a register is made up from a day-book or scroll, 
 the fair copy is in England held to constitute the register (n). But 
 in this country the Court will probably require both to be pro- 
 duced (o), unless the original scroll has been lost. 
 
 § 138. All copies printed from the same composition of types 
 are primary evidence of each other (j))- But an impression taken 
 in a copj'ing press from a written document has been rejected in 
 England (r).^ Lithographic copies cannot (except of consent) be 
 handed to the jury in questions of identification of handwriting ; 
 for, however skilfully they may have been prepared, they almost 
 always bear marks of constraint, showing that they were drawn 
 slowly and in fragments of letters at a time, instead of being writ- 
 ten continuously, like ordinary handwriting (.s). 
 
 § 139. A party is sometimes barred by personal exception 
 from objecting to a copy being received against him, as where it 
 had been made by himself from his own letter-book, neither the 
 original letter nor the letter-book being in the hands of the other 
 party (t). So the copy of an interlocutor engrossed in a bill of 
 advocation was allowed to be used against the advocator, as it had 
 been prepared deliberately, and founded on judicially by him (u). 
 And on the same principle where the terms of an indenture were 
 in issue, letters of horning by the one party, and letters of suspen- 
 sion by the other, in both of which the deed was narrated, were 
 received in proof of its terms; but the presiding judge observed 
 that the original should have been produced (x). And whether 
 the copy has been prepared by a party or not, yet if he has founded 
 
 (n) May v. May, 1737, 2 Strange, 1073— Lee v. Meecock, 1805, 5 Esp., 177—1 Star- 
 kie, 243. (o) See Sturrock v. Greig, 1849, 12 D., 166— Mathers v. Lawrie, ib., 
 
 433. ip) K. V. Watson, 1817, 32 How St. Tr., 82, 86 ; 2 Starkie R., 129, S. C. 
 
 —Hardy's Case, 1821, 1 Green's Trea. Tr., 228. (r) Nodin v. Murray, 1812, 3 
 
 Camp., 228, per Lord Ellenborough. (s) Kingan v. Watson, 1828, 4 Mur., 494 — 
 
 E. Fife V. E. Fife's Tr., 181G, 1 Mur., 108 — They seem to be admissible of consent; 
 Humphrey's case, 1839, reported by Swint., 117. See contra, E. Fife v. Fife's Tr., svpra. 
 
 {i) Gall V. Watt, 1827, 4 Mur., 319. (u) Cadzow v. Wilson, 1830, 5 Mur., 102. 
 
 (z) Peter v. Terrol, 1818, 2 Mur., 30. 
 
 the landlord, bore on the margin that the break was to be optional to the tenant. The 
 Court, on considering a proof, and concluding on the proof that the addition was made 
 with the sanction of the landlord's factor, gave effect to the tenant's copy. 
 
 3 In a trial for murder the Court (Lord Justice-Clerk Hope dissenting) admitted a 
 copy taken by a copying-press of a letter from the deceased to the accused ; holding 
 that, although the original was not found in possession of the accused, the fact that it 
 was copied in a copying-press raised a presumption that it was sent ; Lord Advocate v. 
 Madeline Smith, 1857, 2 Irv., 690.
 
 § 141. ADMISSIBILITY OF COPIES AND EXCERPTS. 109 
 
 on it ill tlio cause, he will not be allowed to oliject to the other 
 party doing so likewise. 
 
 § 140. When insisting on the production f)f the ori.dnal docu- 
 ments would occasion loss of evidence, the rule ahuve illustrated is 
 relaxed, and copies or excerpts taken at the sight of a Commis- 
 sioner of Court at a diet duly intimated to the parties are admitted. 
 This procedure is necessary where documents are in the hands of 
 persons residing beyond the jurisdiction of the Court, who refuse 
 to deliver them up (y). The same practice is followed where gi-eat 
 inconvenience would arise to the persons to whom the original 
 documents belong, if they were obliged to surrender tliem for pro- 
 duction before and at the trial. Thus the Court admit excerpts 
 from cess books, the originals being required for carrying on the 
 business of the office (z), and excerpts from the books of a public 
 company, which are in daily use in the company's business (a). 
 And there is ground both in prineii)lc and practice for extending 
 the rule to books of private mercantile companies and individuals ; 
 whose business ought not to be impeded by depriving them of their 
 books (6). This procedure is also competent where books or docu- 
 ments contain entries of a private character which do not affect 
 the case, and which the haver is entitled to keep from the public 
 eye. The party who loads the proof has no interest or concern 
 with these entries, and the only way in which he can get them se- 
 parated from the others is by means of excerpts taken before a 
 Commissioner. This is especially the case when the issue concerns 
 only the party's own dealings with the company or merchant (c). 
 The rule was also applied to a draft minute which was bound up 
 with other drafts prepared in the office of the haver (a law agent) in 
 connection with the business of his other clients (d). 
 
 But copies and excerpts taken on commission are only admitted 
 on grounds such as those above set forth ; the general rule exclud- 
 ing them wdiere the originals can be produced without unnecessary 
 inconvenience (e). 
 
 § 141. It is not the oath of the haver in the Commissioner's 
 
 (y) Richardson . Forbes, 1850, 22 Sc. Jur., 431 — Alivon v. Furnival, 1834, 1 Cromp. 
 Mee. and Ros., 270, 291. See § 146. (?) Mackintosh v. Grant, 1829, 8 S.. 184. 
 
 (a) Donaldson v. Manchester Ins. Co., 1833, 11 S., 570— Thorn v. N. Britisli Bank, 
 1850, 13 D., 134— Great Northern Ry. Co. r. In-^Hs, 1850, 12 D., 1194. 
 
 (b) Per Lord Fullerton in Tliom v. N. British Bank, supra — Reid v. Hutchison, 1836, 
 14 S., 720— Nelson v. Mackenzie, 1839, Macf. R., 251. (c) See per Lord Fuller- 
 ton in Thorn v. N. British Bank, supra. (d) Wilson v. Glasgow and S. "Western 
 Ry. Co., 1851, 14 D., 1. (c) Supra, § 134.
 
 no ADMISSIBILITY OF COPIES AND EXCERPTS. § 141- 
 
 report tliat authenticates an excerpt. The Commissioner should 
 certify of his o-wn knowledge that it was properly taken (/). The 
 parties however seldom insist upon colhition in presence of the 
 Commissioner ; the usual practice being for tlie haver to produce 
 the original and copy in presence of that officer and the agent for 
 the parties, whereupon his statement on oath that it is correct is 
 entered in the report. Excerpts so taken are admissible on the 
 trial (g). 
 
 But excerpts which had merely been sworn to before the Com- 
 missioner, without the originals having been produced, at a diet at 
 which the other party's agent was not present, were held to be in- 
 admissible at the trial (h). 
 
 § 142. In cases wdiich do not go to a jury, the practice has 
 been to admit the excerpts, when regularly taken, without further 
 proof of their accuracy. But in jury trials it would seem that they 
 must be proved by a witness swearing to that fact {i). And in one 
 case where excerpts from a person's books were tendered, and he 
 was in Court at the time, the presiding judge refused to admit them^ 
 mthout his being examined in explanation (k). The originals, 
 however, do not require to be produced ; although it is proper to 
 have them in Court at the trial, in case they should be required 
 for collation. 
 
 Copies of documents are always admissible of consent ; and it is 
 usual in practice to receive them in order to save expense. In jury- 
 trials this ought to be done by a note of admissions signed by the 
 party's counsel or agent (l).'^ 
 
 (/) Per Lord Justice-Clerk in Summers v. Fairservice, 1842, 4 D., 347. See also 
 Thom V. N. British Bank, supra. (ff) See Summers v. Fairservice, supra — Reid 
 
 V. Hutchison, 1886, 14 S., 720. (h) Summers v. Fairservice, svpra. 
 
 (i) Gray v. Sutherland, 1849, 12 D., 438— See Thom v. N. British Bank, supra. 
 This is a useless and often inconvenient practice. (k) Reid v. Hutchison, 1836, 
 
 14 S., 720. (l) Act of Sederunt, 16th Feb. 1841, § 22— Macf. Pr., 200. See 
 
 § 134, («). 
 
 ■* The i-ule, that copies are not receivable in evidence, is in general inapplicable 
 to documents of a public or quasi public character ordered or authorised by Act of Par- 
 liament. Many recent Acts provide that copies of such documents shall be received 
 in evidence, if certified by the proper officer, without proof of his signature or official 
 position. For example, copies of rules of Friendly Societies, and documents relating 
 to such societies, purporting to be signed by the registrar, are competent evidence with- 
 out proof of the signature (18 and 19 Vict., c. 63, §§ 30, 48) ; coiiies of registers under 
 the Burial Act are evidence of the burials entered therein (18 and 19 Vict., c. 68, § 31). 
 Copies of the registers of British ships have the same effect as the original register (18
 
 § 143. EVIDENCE OF DOCUMENTS LOST, &C. HI 
 
 CHAPTER V. — SECONDARY EVIDENCE OF DOCUMENTS LOST 
 OR WITHHELD, &C. 
 
 § 143. Secondary evidence is admitted to prove the contents of 
 documents which are withheld by an opponent, or which have been 
 destroyed or lost without fault in the party founding on tliem (m). 
 In such cases the adducer leads tlic best evidence in his power ; 
 and it is not to be presumed that he tenders the secondary evidence 
 improperly, in the belief that the original would not support his 
 case.^ 
 
 (w) Macf. Pr., 197—2 Al.. 509—1 Staxkio, 398, 502— Taylor, 303. 
 
 and 19 V^ict., c. 91, g 16) ; copies of special rules for a colliery, certified under the hands 
 of one of the inspectors, are evidence that such rules have been duly established at the 
 colliery (23 and 24 Vict., c. 151, gg 15, 26). Thus, also, subscription of a printed me- 
 morandum or articles of association of a Joint-Stock Company is equivalent to subscrip- 
 tion of the original deed or deeds ; and copies of the reports of inspectors appointed un- 
 der the Joint-Stock Companies' Acts, authenticated by the seal of the companies, are 
 legal evidence of the opinion of the inspectors (19 and 20 Vict., c. 47, §§ 11, 52 ; 25 and 
 26 Vict., c. 89, § 61). So copies of registers under the Nuisance Removal Act, signed 
 by the keepers of such registers, and of resolutions by the local authority under that Act, 
 signed by the chairman, are competent evidence (19 and 20 Vict., c. 103, gg 33, 51). 
 So extracts of entries from a register of births, authenticated by the registrar, are evi- 
 dence (17 and 18 Vict., c. 80, ? 57). 
 
 It is a general rule in England that " whenever any book or other document is of 
 such a public nature as to be admissible in evidence on its mere production from the 
 proper custody, and no Statute exists which renders its contents proveable by means of 
 a copy, any copy thereof, or extract therefrom, shall be admissible in evidence," " pro- 
 vided it be proved to be an examined copy or extract, or provided it purport to be signed 
 and certified as a true copy or extract by the officer to whose custody the original is 
 entrusted " (14 and 15 Vict., c. 99, § 14). Thus it has been that bye-laws of a railway 
 company, made pursiiant to the provisicms of the Railways Clauses Act (England), and 
 confirmed and allowed, were public documents, of which certified cf>pies were admis- 
 sible ; Motteram v. Eastern Counties Railway Company, 1859, 7 Scott's C. B. N. S., 58. 
 So also registers of births, marriages, and deaths, the books of Bank of England, or East 
 India Company, &c., are in general provcablo by examined co]>ies (Best on Evidence, 
 3(1 edition, G03). In Boyle r. Cardinal "Wiseman, 1855, 10 Exch., 654, Chief-Baron 
 Pollock observed, " I entertain some doubt whether, when the examination of the whole 
 question takes place, it may not be found that there is no diftVrence between documents 
 which are of a public nature, such as registers, records, and matters proceeding from 
 courts of justice and other public places, and documents which, though of a private na- 
 ture, are meant to be made public, such as commercial instruments, charter parties, 
 bills of exchange, bonds, and such matters, which are the indiciac of property tliroughout 
 the world ;" it might possibly be right not to deal with the latter as with private letters. 
 * "Wlien the defender in a divorce declined to appear for the purjiose of identifica- 
 tion by the pursuer's witnesses, the pursuer was allowed to show the witnesses the photo- 
 graph of the defender; Forbes v. Forbes, 1861, 24 D., 145.
 
 112 EVIDENCE OF DOCUMENTS LOST, &C. § 143- 
 
 The justice of this rule is most apparent where the principal 
 has been destroj^ed by the opposite party. Accordingly, where one 
 had burnt a disposition, the draft was received against him (n) ; 
 and parole has repeatedly been admitted to prove the contents of 
 documents which an opponent had destroyed (o), and to supply 
 clauses which he had obliterated (p). Even in a trial for forgery 
 the prosecutor may prove the terms of the fabricated document by 
 parole, where the prisoner has destroyed or defaced it (r). 
 
 § 144. The contents of a lost document, also, may be proved by 
 a copy (s), or by parole (t).'^ And secondary evidence is admitted 
 more readily when the original writing was old, and had been fol- 
 lowed by possession (u). So the existence and descent of a peer- 
 age may be proved by cotemporaneous documents of a public and 
 private nature, and by usage, if the original patent has been lost (x). 
 Thus also in ancient matters an instrument of sasine followed by 
 possession is presumptive evidence of the warrant which it nar- 
 rates (y) ; and entries of an old date in a chartulary, proved to be 
 in the handwriting of the time are admissible (z) ; and in a ques- 
 tion of the mode of electing burgesses to sit in Parliament, an old 
 printed list of burgesses was admitted in proof of the usage 118 
 years before (a). But secondary evidence of old documents will 
 not be admitted if the originals are extant. For this reason a 
 printed copy of the Rotuli Scotae (the original of which is in exist- 
 ence) was rejected in a peerage case (h). 
 
 (n) Ross V. Fisher, 1883, 11 S., 467. (o) Kennoway v. Ainslie, 1752, M., 
 
 12,438— Hutchison v. Tod, 1823, 2 S., 318— Anderson v. Boyd, 1827, 5 S., 927— Boyter 
 V. Rintoul, 1832, 5 De. and And., 215— Lillies v. Lillie, 1832, 11 S., 160. 
 
 (p) Ronald, 1830, 8 S., 1008. (r) 1 Hume, 164 ; Chatto, 1753 ; Cameron, 
 
 1754 ; Hay, 1810, there cited. (s) Synod of Merse v. Scot, 1753, M., 15,823— 
 
 Miller v. Moffat, 1820, 2 Mur., 322— Wright v. Ewing, 1828, 4 Mur., 586— Baugh v. 
 Murray, 1834, 12 S., 279— Drummond v. Hunter, 1834, 12 S., 620 ; affirmed on merits, 
 7 W.S., 564. (0 Paris v. Smith, 1823, 3 Mur., 335— Miller v. Eraser, 1826, 4 
 
 Mur., 115— Halliday v. Railton, 1830, 5 Mur., 323— M. Bute v. Cooper, 1830, 4 W.S., 
 835— King v. King, 1842, 4 D., 590. (u) Bullen v. Mitchell, 1816, 4 Dow., 
 
 297, 320— Lynedoch r. Listen, 1841, 3 D., 1078, 9— Bull, N.P., 254. (x) Craw- 
 
 furd and Lindsay Peerage Case, 1848, 2 CI. and Finn., 534 ; 13 D. (H. of Lords' Ca.), 
 32. {y) Stair, 2, 3, 19—1594, c. 218. [z) Bullen v. Mitchell. «/pm. 
 
 [a) Gardner v. Reekie, 1828, 4 Mur., 439. (b) Crawford and Lindsay Case, 
 
 supra, (x). ^ 
 
 2 When the contents of a lost document are proved by parole, its construction is for 
 the Court, not for the jury ; Berwick v. Horsfall, 1858, 4 Scott's C. B. N. S., 450. 
 
 Where a plan referred to in a deed was lost, the Court held extrinsic evidence com- 
 petent to prove the parcels mentioned in the deed ; Andrew v. Andrew, 1855, Eng. 
 Jur.. N. S., i, 885.
 
 § 147. EVIDENCE OF DOCUMENTS LOST, ScC. 113 
 
 Wlien the loss of a Llucumcnt has occurred wliile it was in the 
 liands of" the party t'ouiiiliii;^" on it, the Court will hesitate to admit 
 secondary proof of its contents ; as such cases are usually attended 
 with suspicion. They will prohaltly re(iuiru the party to shew a 
 special casus amissionis not attrihutable to any fault on his' part (c). 
 
 § 145. If a party when required to produce a doeunient has 
 failed to do so, his opponent may prove its contents liy parole rir a 
 copy {(l). And on the same principle in a trial for treason, where 
 the prisoner had prevented a witness from removing a placard, the 
 prosecutor was allowed to prove its terms by another placard which 
 had been put up a few yards off, and which the witness swore he 
 believed to have been printed from the same types (e). 
 
 § 146. A further exception from the strict rule is recognised in 
 England, and w^ould probably be admitted in this country, when 
 the production of the original document is impossible or highly in- 
 convenient, as in the case of inscriptions on monuments, walls, and 
 the like (/).^ But a notice which hail merely been fixed to the 
 w^all by a nail had to be produced (r/). So wdiere a document is in 
 the hands of a person abroad (A), or of a third party who refuses to 
 produce it on account of some right of retention or security, second- 
 ary evidence of its contents is admitted in England {i). If, how^- 
 evcr, the person is entitled to withhold the document on account of 
 privilege of a public office, the principle that the community has 
 an interest to keep it from publication excludes secondary proof of 
 its terms {k). 
 
 § 147. Whether a sufficient case of loss or destruction of the 
 principal has been established, must be determined by the judge, 
 
 (c) See Schuurmans v. Stephen, 1832, 10 S., 839, itifra, § 148. {d) Robert- 
 
 son V. Ferguson, 1820, 2 Mur., 804— IM'Nab v. Teller, 1821, 2 Mur., 481— Armstrong v. 
 Vair, 1823, 3 JIur., 317— Mitchell v. Berwick, 1845, 7 D., 481. (<-) Hardy's 
 
 case, 1821, 1 Green's Trca. Tr., 227. (/) Doe v. Cole, 1834, G Car. and Pa., 
 
 359— K. V. Fursey, 1833, ib., 81. So in Bartholomew v. Stephen.s, 1839, 8 Car and Pa., 
 728, Mr Justice I'atteson admitted a copy of a notice which had been on a board on the 
 top of a pole, that all dogs found trespassing on the premises would be shot. See also 
 1 Starkie, 603— Taylor, 311. {g) Jones v. Tarleton, 1842, 9 Jle. and Wei., G75. 
 
 (h) Alivon v. Furnival, 1834, 1 Cromp., Mce. and Eos., 277— See Richardson v. For- 
 bes, 1850, 22 Sc. Jur., 431. Supra, ? 140. (i) Doe i;. Clifford, 1847, 2 Car. and 
 Kir., 448— Doe v. Ross, 1840, 7 Me. and Wei., 102. f») Little v. Smith, 1846, 
 8 D., 265, and 9 ib., 737, S. C— Craig i'. Marjoribanks, 1823, 3 Mur., 347. 
 
 3 A copy of a printed notice posted on the walls of Ibralia, of which Prince Gort- 
 schakoff was in the military occupation, prohibiting in his name the export of wheat, was 
 admitted as proof that export of wheat was prohibited; Bruce r. Nicolopulo, 1855. 11 
 Exch , 129. 
 
 VOT,. I. H
 
 114 EVIDEN'CE OF DOCUMENTS LOST, S:C. § 147- 
 
 althoiigh it should involve a question c>f disputed fact (l). He may 
 decide upon the evidence of one ^vitncss (m), or upon the deposi- 
 tions of persons examined as havers (n)^ ; and he is entitled to use 
 his own discretion as to the competency of the proof adduced be- 
 fore him, without behig tied down to strict rules of evidence ; so 
 that he may even receive hearsay upon the point (o). It also lies 
 with the judge, and not with the jury, to determine whether a copy 
 of a missing document is sufficiently proved to he laid before the 
 
 § 148. It must of course depend on the circumstances of each 
 case, whether the party has exx)ended such an amount of care and 
 diligence in searching for the document, as will entitle him to 
 prove its contents by secondary evidence. He does not require to 
 exhaust every possible chance of recovering it (r). But he must 
 show that he has m bona fide used every means whicli prudence 
 would suggest as likely to attain that object {s). Accordingly, a 
 copy tendered on the ground of the original not having been pre- 
 served was rejected, because no proper search for it was proved, 
 and because the copy had been made after the commencement of 
 the suit, while the original had existed several months thereafter, 
 and should have been preserved {t).^ And where the principal was 
 traced into the hands of the party tendering the secondary evidence, 
 and it was not proved to have been lost without his fault, jDarole of 
 its terms was rejected, although there was no ground for suspecting 
 that he had destroyed it fraudulently {u). Where documents are 
 said to be withheld, it is enough for the party tendering the se- 
 
 (J.) This is seen in everyday practice. The English rule is the same, Taylor, 304 — 
 Best on Ev., 346. (m) Miller v. Eraser, 1826, 4 Mur., 115— Hallilay v. Eailtou, 
 
 1830, 5 Mur., 323— Scott v. Miller, 1830, 5 Mur., 242. (n) Home v. Hardy, 1842, 
 
 4 D., 1184— Ewing v. Crichton, 1827, 4 Mur., 184— Scott v. Miller, 1830, 5 Mur., 242. 
 
 (o) See Christian v. Kennedy, 1818, 1 Mur., 424— Miller v. Moiiat, 1820, 2 Mur., 325 
 — R. V. Kennilworth, 1845, 7 Ad. and EL, 642. See supra, § 105. {p) See 
 
 Pollock V. Morris, 1845, 7 D., 073. Supra, § 141. {r) Taylor, 304. 
 
 (s) This is well brought out in Lord Melville's trial, 1806, 29 How St. Tr., 690-703. 
 See also cases in 1 Mur., 299, 345 ; 2 Mur., 304; 3 Mur., 200. {f) Milne v. 
 
 Samson, 1843, 6 D., 355. («) Schuurmans v. Stephens, 1832, 10 S., 839. 
 
 4 Clark V. Clark's Trs., 1860, 23 D., 74. 
 
 The pursuer of a divorce proposed to examine herself as a haver to prove the loss 
 •of a document, and so make way for parole proof. The Court held that she was an 
 incompetent witness ; and, as the loss of the document was not otherwise proved, re- 
 jected the parole evidence ; Longworth v. Yelverton, 1862, 24 D., 696. 
 
 5 Ritchie v. Ritchie, 1857, 19 D., 605— A v. B, 1858, 20 D., 407— Clark i'. Clark's 
 Trs., 1860, 23 D., 74— Russell's Trustees v. Russell, 1862, 24 D.. 1141.
 
 § 149. EVIDENCE OF DOCUMENTS LOST, &C. 11 
 
 condary proof to trace tliom intu his opponent's hands, after which 
 it hcs on the latter to sliuw that liis possession has terminated (v). 
 In England tlie search docs not reiiuire to have hcen made recently, 
 or with special reference to the cause, if it has l)fen with sufficient 
 care (x). Where there are duplicates of the principal, they must 
 hoth he accounted for heforo tlio secondary evidence will he re- 
 ceived (u). liut this docs not Imld in England as to contracts 
 executed in counterpart (z). In a claim hy the crown for arrears 
 due under a tack of tcinds, the tack not heing produced by the 
 crown, Lord Neaves in the Exchequer Court ruled that secondary 
 evidence of its terms is admissible, and that an action of proving 
 its tenor is not necessary. His lordship's decision was given with 
 reference to the law of England, to which the law of the Exche- 
 quer Court in Scotland is in some respects assimilated. This 
 ruling may he questioned (a). 
 
 § 149. It seems not to have been settled in this country 
 whether the existence of an authentic copy will exclude parole of 
 the contents of the original. In one case where a placard was 
 admitted, a witness having sworn he behoved it to be identical 
 with one whic-h had been put up a few yards off", but which he was 
 prevented by the panel from taking down, Lord President Hope 
 remarked that the existence of the copy excluded parole of the 
 terms of the original (&). But this Avas only obiter dictum, and 
 may be explained upon the principle that all impressions from 
 the same setting of types are primary evidence of each other (c). 
 Later practice seems not to distinguish in point of admissibility 
 between the various degrees of secondary evidence ; although the 
 general superiority of copies in point of credibility is recognised (d). 
 This is the rule in England, and seems to be well founded; because 
 the existence, and still mure the authenticity, of any copy may be 
 unknown to the party leading the proof; the copy may be scarcely 
 (if at all) more trustworthy than parole of the contents of the ori- 
 ginal; while the ojiposite principle would exclude parole when 
 
 (>;) R. V. TliistlewooJ, 1820, 33 How St. Tr., 757, 758— R. v. Ings, 1820, ib., 989— 
 Taylor, 313. (x) Fitz v. Rabbits, 1837, 2 Moo. and Rob., GO. In this case a 
 
 search made three years previously was held sufficient. See also Taylor, 309. 
 
 (y) R. V. Castleton, 1795, 6 Durf. and East., 236. (z) Doe v. Ross, 1840, 7 
 
 Mee. and Wei.. 102— Hall v. Bull, 1841, 3 Scott N. C. 577— Munn v. Godbold, 1825, 
 3 Bing., 202 ; 11 B. Moore, 49, S.C— Taylor, 301, 2—supra, § 135. 
 
 (a) Adv.-Gen. v. Sinclair, 1855, 17 D., 290. {b) Hardy's case, 1821, 1 
 
 Green's Trca. Tr., 227. (c) See § 138. (rf) See Scott v. Miller, 1830, 5 
 
 Mur., 242— Hallilay v. Railton, 1830, 5 Mur., 324. 
 
 h2
 
 lit) EVIDENCE OF DOCUMENTS LOST, &C. § 149- 
 
 there is an abstract, and an abstract when there is a full copy; and 
 consequently a scale of several degrees of secondary evidence would 
 be formed, each of which would require to be exhausted before the 
 one lower down could be reached. Such a practice would encum- 
 ber cases both in preparation and at the trial with lengthened 
 and often difficult collateral investigations. None of these disad- 
 vantages are counter-balanced by corresponding benefits, and any 
 risk of injustice from admitting the different kinds of secondary 
 proof indiscriminately is excluded, as it is always in the power of 
 the other party to produce the copy or abstract which he considers 
 more trustworthy than the evidence adduced against him (e). 
 
 § 150. It seems not to be indispensable to the admission of a 
 copy that it should have been collated with the original (/). But 
 of course its value is much enhanced by that security. There must 
 however be evidence, varying with the circumstances, to show that 
 it is a true copy, and it will probably not be received without such 
 proof, unless the original and copy are both of ancient date (g). A 
 copy of a copy is inadmissible in England (/?). But the point 
 seems not to have been decided in this country (i). Before se- 
 condary evidence of a document will be received, there must be 
 proof or ground for presuming that the principal was admissible, 
 as that it was stamped (Jc),^ and probative (l), wdiere these are re- 
 quisite; and a party will not be allowed to found upon a scroll un- 
 less he has proved that the deed was executed (on). But it does not 
 seem to be necessary that the instrumentary witnesses (appearing 
 to be so from the secondary proof adduced) should swear to a dis- 
 tinct recollection of their attestations, provided they have a general 
 
 (e) Hall V. Ball, 1841, 3 Scott's New Ca., 577— Doe v. Ross, 1840, 7 Mee. and Wei., 
 102— Taylor, 354—1 Starkie, G19. (/) Bishop Atterbury's trial, 1723, 16 How 
 
 St. Tr., 494, 509. (g) See Swin. Eep. of Trial of Humphreys (soi-disant E. of 
 
 Stirling), 1839, p. 175. {h) Everinghani v. Eoundall, 1838, 2 Moo. and Rob., 
 
 138 — Taylor, p. 356. {i) See J 109, as to hearsay of hearsay. 
 
 {k) Goodier v. Lake, 1737, 1 Atk., 446— Crowther v. Solomons, 1848, 18 Law Journ. 
 New Ser. (Com. PI.), 92— R. v. Culpepper, Skin., 673— Doe v. Whitefoot, 8 Car. and 
 Payne, 270. It would appear that stamping will be presumed ; 1 Bell Com., 322 — Tait, 
 154 — Shand's Prac., 838 — Crowther v. Solomons, supra. Where there is faint trace of 
 a stamp of some kind, the onus of proving it is deficient lies on the party alleging that ; 
 Doe V. Coombs, 1842, 3 Ad. and EL, 687—1 Greenl., 107. (Z) Ersk., 4, 1, 56— 
 
 Tait, 211. {m) Drummond v. Thomson's Trs., 7 W. S., 564. 
 
 ^ It seems to lie on the party who objects to secondary evidence of a lost deed to 
 prove that the deed was not stamped; Closemadowc v. Carrel. 18 C. B., 36— Best on 
 Evidence, 3d edition, 310.
 
 § 150. EVIDENCE OF DOCUMENTS LOST, &C. 117 
 
 recollection of the fact; aud such evidence will not be considered 
 necessary where there is a stronp^ ])roof that the original was pro- 
 perly attested (w). 
 
 The subject of the foregoing sections is treated at some length 
 in the chapters on actions of ])roving the tenor, where the rules as 
 to admitting the secondary evidence without a process of that kind 
 will be found, 
 
 (n) See Lord Melville's trial, 180G, 29 How St. Tr., 734. See this noticed in the 
 chapters on Proving of the Tenor, in//a.
 
 118 ADMISSIBILITY OF PAROLE TO AFFECT WRITINGS. § 151- 
 
 TITLE V. 
 
 OF THE ADMISSIBILITY OF PAROLE AND OTHER EXTRINSIC 
 EVIDENCE TO AFFECT WRITINGS. 
 
 § 151. In following up the rule which requires the best evi- 
 dence we proceed to consider the principle by which it is incom- 
 petent to contradict, modify, or explain writings by parole or other 
 extrinsic evidence. The grounds for this principle are, that the 
 parties have constituted the writing as the only outward and visible 
 expression of their meaning, and that, a document deliberately 
 prepared as the record of a transaction being the best of all proof, 
 to admit parole or extrinsic circumstances in contradiction or ex- 
 planation of it, would be to allow the legal effect of superior evi- 
 dence to be altered by that which is specifically inferior (a). 
 
 § 152. These principles apply not only to formal deeds, but 
 also to missives, letters, minutes, and all other documents, which 
 embody the terms of contracts between the parties, or obligations 
 by one of them, and which are really designed for recording and 
 proving their final intentions (h)} The rule also applies (but with 
 
 (a) Tait, 326—2 Al., 609—1 Greenl., 353— Taylor, 742—2 Pliil, 850—3 Starkie, 
 752. {/j) Tlie principle has been applied to a letter of guarantee ; Wills v. How- 
 
 den, 1831, 4 D. and A., 437— Tliam v. Sheriffs, 1725, Rob. Ap., 535 ; and to a minute 
 by counsel settling a case on a trial ; Johnstone v. Union Canal Co., 1834, 12 S., 304, 
 and 1 Sh. and M'L., 117— infra, § 164 ; and to markings of partial payments of a bill ; 
 Macfarlane v. Watt, 1828, 6 S., 556— See also 2 AL, 610— Taylor, 746—2 Phil., 
 850. 
 
 1 A bank pass-book is not a fitted, but only a current account, and a bank may, in 
 defence to an action by a customer for the balance as appearing in the pass-book, prove 
 that a sum has been entered twice by mistake, although tlie entries are initialed by the 
 oi3acers of the bank. This was ruled by the House of Lords, reversing the judgment of 
 the Court of Session, where it had been held that the several entries were acknowledg- 
 ments by the bank of receipt of money, and could be disproved ope exceptionis, only by
 
 § lo:'.. ADMISSIl'.lI.ITY OF I'Al;(Jl,E TO AFFKC'l' WUITINGS. 110 
 
 some specialties) to iiistniiuonts and registers which the law has 
 intrusted to recognised ollicials as the ajjpropriate record of formal 
 or judicial proceedings. But when an official narrative is not re- 
 quired by law, its existence will not exclude parole proof of the 
 facts ; nor will witnesses be inadmissible in regard to matters 
 wliich, althougli recorded in an official instrument along with facts 
 requiring that mode of proof, do not fall properly within its 
 sphere {c)? 
 
 The inadmissibility of extrinsic proof to modify these writings 
 is considered afterwards in treating of them {d). In the following 
 chapters, we shall only notice the application of the rule to writ- 
 ings executed by the parties, or those for whom they are respon- 
 sible. 
 
 CHAPTER I. — OF THE ADMISSIBILITY OF PAROLE AND EXTRINSIC 
 EVIDENCE TO CONTRADICT OR MODIFY WRITINGS. 
 
 § 153. The first branch of this rule is, tliat a written instrument 
 may not be contradicted or modified by the evidence of witnesses. 
 Thus parole is inadmissible to contradict the consideration in a 
 
 (c) Stair, 4, 42, 9— Ersk., 4, 2, 5— Bell's Pr., 2220, 1— Tait, 4— Anstrutlier v. Thom- 
 son, IGll, M., 12,499 — Lawrie v. Gibson, 1671, M., 12,501 — Malvenius v. Hepburn, 
 1686, M., 583— Stewart v. Mag. of Edinburgh, 1697, M., 12,536— Glass r. Stuarts, 1715, 
 M., 12,507— Montgomerie v. Ainslie, 16th Nov. 1816, F. C. {d) See the chap- 
 
 ters on judicial records, notarial instruments, and messengers' executions. 
 
 the writ or oath of the pursuer ; Rhind v. Commercial Bank. 1857, 19 D., 519 ; rcYcrsed, 
 1860, 3 Macqueen, 643, and 32 Jur., 283. 
 
 The docqucted balance sheets of a mercantile company (which are documents in re 
 mercaloria, and do not require the statutory authentication) may be challenged im pre- 
 cise allegations of error, as of errors in calculation, errors of accounting, &c., but the 
 onus is on the challenger ; JI'Larcn v. Liddell's Trustees, 1860, 22 D., 373, and 1862, 
 24 D., 577. Tliis rule was applied in a case where a parochial board disputed the ac- 
 curacy of the accounts of their inspector, which had been marked as examined, and 
 docqueted as correct by tlie finance committee, for several successive years. When mer- 
 cantile accounts had been duly docqueted for a considerable series of years, and when 
 a long period had elapsed after tlie date of the last docquet without challenge of the 
 accounts, the Court held that the grounds of challenge should be limited to errors patent 
 on the face of the balance sheets, and which conld be corrected by moans of the balance 
 .sheets themselves; M'Larcn v. Liddell's Trustees, 1862. fupra. 
 
 2 Milne v. Leisler. 1862, 31 L. .1. Exch., 2".7. S.-r s>!pra. § 110. \xo\f 1.
 
 120 ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. § 123- 
 
 deeJ (<),^ (unless tlicre is collusion) or to prove tliat the obligation 
 in it was restrictalilc in a certain event (/), or was contingent or 
 conditional (g)," or prestaLle by instalments (h), when the contract 
 does not bear such conditions. So the tenant under a written lease 
 for sixty-nine j-ears was not allowed to prove an alleged parole 
 agreement entered into with the landlord when the lease was exe- 
 cuted, by which rent was not to be paid for the first years' crop (t). 
 And a clause in a lease bearing that buildings had been valued at 
 the entry cannot be contradicted by parole (A:). It is also incom- 
 petent to prove by witnesses that a bond or bill was not intended 
 to create an obligation (?) ; or that a written contract between a 
 landlord and outgoing tenant was not meant to disturb a previous 
 agreement, but merely to satisfy the incoming tenant (m) ; or that 
 a receipt bearing money to have been paid is erroneous, and that a 
 different arrangement was made between the parties (n).^ On the 
 
 (e) Gordon v. Trotter, 1833, 11 S., 696— Bruce, Pet., 1696, M., 12,329— Ellis v. 
 Haig, 1693, 4 Sup., 40— Deas v. Fullerton, 1710, M., 921, 12,336— Browntree v. Jacob, 
 1809, 2 Taunt., 141. A party founding on his bill bearing to be for a certain value, 
 may not prove that the true value was different ; Hay v. Horn, 1823, 2 S., 546. 
 
 (/) Patterson v. Robertson, 1844, 6 D., 944. (ij) Maxwell v. Drumlanrig, 
 
 1626, M., 12,304— Wilkies v. Gordon, 1618, M., 12,407— Wauchope v. Hamilton, 1574, 
 M., 12,209— Rawson v. Walker, 1816, 1 Starkie R., 361— Ellis v. Haig, supra. 
 
 (h) Watson V. Gardner, 1834, 12 S., 588. (i) Gordon's Tr. v. Williamson, 
 
 3d Feb. 1830, 8 S., 430 ; 2 De. and And. S. C, 227, and session papers. 
 
 (A:) Lawson v. Murray, 1825, 3 S., 536. (1) E. Moray v. Dunbar, 1630, M., 
 
 12,306 — Beveridge v. Henderson, 1841, 4 D., 87— See the chapter on the presumed 
 onerosity of biUs and notes. (m) M. Tweeddale v. Hume, 1848, 10 D., 1053. 
 
 (n) Anderson v. Forth Marino Ins. Co., 1845, 7 D., 268. 
 
 1 Thus it was held incompetent to prove, contrary to the terms of the deed, that it 
 had been agreed that the consideration for the deed was to be not money but goods, 
 but competent to prove that goods had de facto been accepted as the consideration ; 
 Smith V. Battams, 1857, 26 L. J. Exch., 232. 
 
 2 A distinction is taken in England between an averment of an agreement or condi- 
 tion suspensive of a contract, and of an agreement or condition modifying the contract ; 
 in the former case parole proof is admitted, because the object is not to contradict the 
 terms of the contract, but to suspend its operation ; in the latter case the object is to 
 limit the meaning of a deed which is admittedly a valid contract, and the evidence is 
 inadmissible. Thus an agreement that a contract should, till a certain event, be 
 suspended altogether, was allowed to be proved, while (at nisi prius) parole proof of an 
 agreement that a contract was to have only a partial operation rejected ; Pym v. Camp- 
 bell, 1856, 6 E. and B., 370— Gudgen v. Besset, 6 E. and B., 986— Wallis v. Littell, 
 1861, 31 L. J., C. P., 100— Fenwick v. Brinkworth, I860, 2 F. and F., 86. So also 
 parole proof was admitted to show that an undated written < contract was not intended 
 to operate from the date of its delivery, but only from a subsequent and uncertain 
 period ; Davis ?•. Jones, 1866, 17 Scott's 0. B., 625. 
 
 3 A receipt for money is evidence of a loan, and of obligation t^") repay. That is not ex-
 
 § iOfx ADMISSIBILITY OF TAliOLE TO MODIFY WJUTINOS. 121 
 
 same principle where the testing clause in a probative deed Lad 
 been inserted ex intervaHo in a blank left fur it (according to a 
 common practice), it was held incompetent to prove by parole that 
 the parties intended that the deed should not have a testing clause ; 
 as that contradicted the obligations to which they had set their 
 signatures (o).* 
 
 § 154. On the same grounds, where the obligants appear ex 
 facie of the deed to be principals, it is incompetent, as against the 
 creditor, to prove by parole that they are principal and caution- 
 er (^)), or merely agents for another party, the real contractor (r).^ 
 And when the meaning of a minute of agreement was, that the two 
 parties should pay a certain sum ecjually, and one of them advanced 
 the whole, it was held incompetent for the other to prove an alleged 
 verbal agreement, by which he was not to be liable in relief of the 
 htdf except in a certain event, which did not happen (s). So it is 
 incompetent to prove by parole that a disposition ex facie absolute 
 was meant to be only a security (/"), or a trust (w). 
 
 § 155. On this principle, also, where the terms of a general 
 discharge embrace a particular debt, parole will not be received to 
 prove that that debt was intended to be excepted (x) ; and where 
 
 (o.) Shaw V. Shaw, 1851, 13 D., 877. {p) Drysdale v. Johnstone, 1839, 1 
 
 D., 409,— see § 170, (m), («). (r) Anderson v. Smith, 1830, 8 S., 304— Magee v. 
 
 Atkinson, 1837, 2 Mee. and Wcl., 440 — Stackpole v. Arnold, 1814, 11 Massacliussets 
 K., 27 — 1 Greenl., 354 — Taylor, 7u9. (s) Johnstone v. Union Canal Co., 1834, 
 
 12 S., 304 ; affirmed 1 Sh. and M'L., 110. (0 L. Foulis v. L. Lovat, 1G2G, M., 
 
 12,734. But see Union Ins. Co. v. M. Queeusberry, lb42, 1 D., 1203, infra. 
 
 {u) See the chapter on proving trusts, infra. (x) Harris v. Churchill, 1822, 
 
 1 S., 370— Trail v. Christie, 1745, Elch. Writ, No. 20— Spunce v. Duncan, 170G, M., 
 12.333. 
 
 pressed in the document, but is the legal consequence of receipt of money. But it may 
 be proved that the footing on whicli tlie money was received was different from loan ; 
 Thomson v. Geekie, 1861, 23 D., 693. Parole proof that a sum advanced, acknowledged 
 in the following terms, — " I hereby acknowledge the receipt of £100 from A B, and 
 agree to pay interest of the same if demanded," was a donation and not a loan, waa re- 
 jected as incompetent; Robertson v. Robertson, 1858, 20 D., 371. 
 
 •* A mandate to fill up the testing clause of a delivered deed is presumed ; Rait r. 
 Primrose, 1859, 21 D., 965. 
 
 * Parole evidence cannot bo admitted for the purpose of exonerating an agent who 
 has entered into a written contract in which he appears as principal, even though he 
 should propose to show, if allowed, that he mentioned his principal at the time of en- 
 tering hxio the contract; Gillolt v. Oll'or, 1853, 18 Sfolt's C. B., 905. But parole .«!oems 
 admissible to shew that otlier parties were the true principals to the effect, not of releas- 
 ing the parties to the deed, but of obliging the true principals ahso ; 2 Smith's Leading 
 Ca.<5e3, uf^tc on Thomson v. Pavenpnrt, 309, 320.
 
 122 ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. § 155- 
 
 a policy of iusiirauce ^vas on " goods from Surinam to London, in 
 ship or ships," it was held incompetent to prove by witnesses that 
 a particular ship had been excepted by a verbal agreement {y). 
 And in a minute of sale of woodsy in which a certain portion of 
 them was reserved, the seller Avas not allowed to prove by parole 
 that an additional part had been reserved verbally (z). 
 
 § 156. "Witnesses are also inadmissible to add stipulations to a 
 written contract. This was hold where one who had purchased at 
 a sale by auction alleged that the auctioneer stated that on the 
 lots being knocked down, they were to be held as delivered, there 
 being no such condition in the articles of roup («). And a similar 
 decision was pronounced in England, where it was alleged that the 
 auctioneer in a sale of timber had verbally warranted the lots as 
 containing a certain quantity of wood, the articles of sale being 
 silent on the point (6). Thus also where there is a written lease 
 the landlord may not prove by witnesses an additional obligation 
 by the tenant to build houses (c), or to pay for summer fallow left on 
 the farm by the outgoing tenant {d).^ And where the parties had 
 executed a written contract of sale of grain, it was held incompetent 
 to prove a verbal obligation on the seller to carry the grain twenty 
 miles beyond the place where he delivered it (e). On the same 
 principle, a party is not entitled to add to missives of a sale of 
 heritage a verbal agreement to hold the contract rescinded, if the 
 price should not be paid within six years (/). And where there 
 Avas a written agreement to furnish cast-iron pipes at a certain rate, 
 it was held incompetent to prove by parole a verbal stipulation fix- 
 ing the quantity {(j). This case stands distinguished from one no- 
 ticed above (/i), in which, the duration of a lease having been blank 
 in the written missive on which the tenant possessed, the Court 
 allowed the term (which was evidently longer than one year) to be 
 explicated by parole, In the latter case a duration of some period 
 had to be imported into the contract ; and therefore the deed could 
 
 {y) Weston v. Ernes, 1808, 1 Taunt., 115. (z) Kendal and Co. v. Campbell, 
 
 1766, M., 12,351. {a) Lang v. Bruce, 1832, 10 S., 777. {b) Powel v. 
 
 Edmunds, 1810, 12 East., 6— See also Jones v. Edney, 1812, 3 Camp., 286. 
 
 (c) Maxwell v. Burgess, 1773, M., 12,351. The proof tendered included relative ad- 
 missions of the tenant. {d) Alexander v. Gillon, 1847, 9 D., 524. 
 
 (e) Brisbane v. Glasgow merchants, 1684, M., 12,328. (/) Baptist Churches- 
 
 V. Taylor, 1841, 3 D., 1030. {g) Pollock v. M'Andrew, 1828, 7 S., 189. 
 
 {h) M'Leod V. Urquhart, 1808, Hume D., 840. 
 
 e Or to put up fences; M'Gregor v. Strathallan, 1862, 24 D., 1006.
 
 § 158. ADMISSIBILITY OF PAUOLE TO MODIFY WRITINGS. 123 
 
 not exclude extrinsic pro(jf on that i)oiut. Jjiit in tlic former case 
 the documents without the verbal addition constituted a complete 
 contract, fixing the price of the iron which should be taken, but 
 leaving the quantity to the jjurchaser's option; and therefore the 
 parole proof tendered would have materially altered the nature of 
 that transaction. 
 
 § 157. The principle thus illustrated excludes not only parole, 
 but all extrinsic evidence (except writ or oath of the party) by 
 which the legal construction or effect of a deed might be modified. 
 Thus a party may not impugn his obligation by shewing he was 
 not Ijound in law to undertake it (/). And (unless fraud is alleged) 
 previous communings and correspondence are inadmissible to mo- 
 dify the obligations under a deed (k), or to negative the considera- 
 tion on which it bears to proceed {!).'' 
 
 § 158. >So a formal deed may not be added to or modified by 
 an antecedent minute between the parties (m)^; and the legal con- 
 
 (t) Higgins V. Livingstone, 1816, 4 Dow, 341 — Jaffray v. Eobertson, 1712, M., 
 12,337— Ross V. Stirling, 1816, 4 Dow, 442, (Irish). (k) Miller v. Miller, 1822, 
 
 1 Sh. Ap., 308— Clark v. Burns, 1835, 13 S., 338— Hughes v. Gordon, 1819, 1 Bligh, 
 287— Stevenson v. Muncrieff, 1845, 7 D., 418. (l) Stewart v. Stewart, 1842, 1 
 
 Bell's Ap., 796. {vi) Sivright v. Borthwick, 1828, 7 S., 210— E. Fife's Tr. v. 
 
 Duncan, 1824, 3 S., 241— Carruthers v. Thomson, 1836, 14 S., 464. 
 
 7 When parties have reduced their respective undertakings and obligations into 
 writings, and these writings do not form a completed contract, as in the case of an offer 
 and acceptance which do not correspond, it is incompetent to prove verbal communings 
 •with the view of proving that parties had come to a complete understanding and agree- 
 ment. Thus where, in answer, to a written offer for the sale of lands, an intending 
 purchaser wrote that he accepted the offer on a certain understanding in reference to 
 certain matters, to which no reference was made in the offer — it was held that the offer 
 and acceptance did not form a completed contract, and that it was incompetent to prove 
 that the understanding in the acceptance referred to verbal representations made by the 
 offerer prior to tl)e offer ; Johnston i-. Clark, 1855, 18 D., 70. "With this compare the 
 case of Colquhoun v. Wilson, in which, when a written offer to take lands in feu was 
 accepted with certain conditions, and the offerer took possession and executed opera- 
 tions on the lands, which were held to be beyond the power of a tenant, and to be acts 
 of proprietorship, it was held that a completed contract was not constituted by the let- 
 ters, that it was incompetent to prove the offerer's verbal assent to the ccmditions men- 
 tioned in the acceptance, but that the incomplete contract was rendered binding rei in- 
 tervening and that the conditions in the letter of acceptance were binding conditions of 
 the contract; ("ohiuhouu i-. Wilson's Trustees, 1800, 22 D., 1035. 
 
 In an action on a contract fur haulage at so much per horse, the number of horses 
 not being mentioned in the contract, it was held incompetent to prove that there had 
 been a list of horses made out, on which list, though it was not mentioned in the con- 
 tract, the contract proceeded; W^alkcr v. Caledonian Railway Co., 1858, 20 P.. 1H12. 
 8 See M'AIister r. Gemmil, 1862, 24 D., dbG—xupra, | 121. note 11.
 
 124 ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. § loS- 
 
 stmctioii of a patent of peerage may not be altered by referring to 
 the marriage-contract on which it proceeded (n). On the same 
 principle it was held that, where a lease had been sanctioned by 
 and embodied in an Act of Parliament, the preliminary contract 
 between the parties (two railway companies) could not be read as 
 sanctioning a voidance in a certain event (o). Thus, also, in con- 
 struing a statute no regard can be had to the standing orders of the 
 House of Commons (j:>), or to the discussions in Parliament before 
 passing the bill, or to the bill as differing from the Act itself (r). 
 It follows, that where there is a regular deed between parties, a 
 separate contract as to matters within its provisions cannot be 
 gathered by slight inferences from writings and actings, especially 
 if dated before the document (s). 
 
 § 15U. On the same principle a formal decree-arbitral may not 
 be modified by referring to the notes previously issued by the ar- 
 biter to the parties, because before pronouncing the decree he may 
 have altered the views which the notes embody (f). And if it bears 
 to proceed on grounds within the submission, or on the whole cir- 
 cumstances, the notes may not be used to shew that the arbiter 
 went partly on data beyond the submission (x). Yet where an 
 error calculi is alleged, it would seem that the preliminary notes, 
 containing the detailed findings and the data on which the decree 
 proceeded, may be looked at (y). In some old cases arbiters were 
 examined in order to explain their ambiguous awards (z). But this 
 has been properly refused in later decisions (a). And, although in 
 
 (n) Annandale peerage case, noticed by Lord Moncrioff in Blair v. Blair, 1849, 12 
 D.. 109, and in Lockhart );. M'Donald, 1840, 2 D., 424— See also Innes v. Kerr, 13th 
 Nov. 1810, F.C., as noticed by Lord Moncrieff in these cases. (o) Stirling and 
 
 Dunfermline Rail. Co. v. Edinburgh and Glasgow Rail. Co., 1852, 14 D., 747. 
 
 (p) North British Rail. Co. v. Tod, 1845, 5 Bell's Ap. Ca., 184, reversing 8 D., 726., 
 (r) Allan r. Edinburgh Parochial Board, 1849, 11 D., 1391— Bridges r. Fordyes?, 
 1844, 6 D., 968; affirmed, 6 Bell's Ap., 1. (s) Alexander v. Gillon, 1847, 9 D., 
 
 524— Hughes v. Gordon, 1819, 1 Bligh, 287. (t) Ferguson v. King, 1828, 6 S., 
 
 1006— Mackenzie v. Girvan, 1840, 3 D., 318— Brackenrig v. Menzies, 1841, 4 D., 2T4. 
 and 14 Scot. Jur., 109— Laing v. Brown, 1852, 15 D., 38— Runciman v. Craigie, 1831, 
 9 S., 629— Bankt., 1, 23, g 22. (z) Cases in preceding note compared with 
 
 Steele v. Steele, 22d June 1809, F. C, and Bell v. Halliday, 1825, 4 S., 286, see infra, 
 I 184. {y) Morrison v. Robertson, 1825, 1 W. S., 143. {z) Fleming r. 
 
 Fleming, 1555, M., 624— Pharnehcst v. Moscropt, 1611, M., ib.— Hays v. Hay, 1671, 
 M., 12,319— Grant v. Grant, 1679, M., 10,439, 40— Davidson v. T. of Edinburgh, 1684, 
 M., 12,327. All these cases occurred before the Act of Sederunt, 29th April 1695, g 25, 
 declaring decrees-arbitral reducible only on the grounds of corruption, bribery, and 
 falsehood. («) Williampon v DinTriddie, 1777, 5 Sup., 428— Woddrop v. Finlay. 
 
 1794, M., 628— Bankt., 1, 23. 2 22.
 
 § 160. ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. 125 
 
 the special case of a judicial reference tu the arbiters named in a 
 contract which takes the parties bound to refer tlieir disputes, the 
 Court may remit to the arbiters to explain their award, or even to 
 reconsider it with a view to certain objections (b), — the general 
 rule is, that a decree-arbitral, like any other finished wTit, must 
 stand or fall on its own merits, and must be construed by itself (c). 
 This, however, does not exclude the examination of the arbiters on 
 questions of fact regarding the regularity of the proceedings, as 
 whether they decided without hearing parties or allowing a proof, 
 or wliether they differed before devolving on the oversman (d).^ 
 
 § IGO. Where parties have by missives or correspondence 
 bound themselves to enter into certain obligations by a formal deed, 
 these documents are admissible on the question, whether the deed 
 as extended but not yet executed embodies the agreement. But in 
 order to be binding, tlie antecedent documents must prove a con- 
 cluded intention to contract, the deed being only required for giving 
 technical effect to it {«), A draft adjusted by the parties may also 
 be used in such questions, although the consequence may be to 
 break off the agreement (/). 
 
 Except in such special cases, however, an extended deed may 
 not be contradicted by reference to the draft; because, if they differ, 
 there is a presumption y^r/s et dcjure that the draft was departed 
 from, and the deed agreed to as extended {g)}*^ So the testator's 
 instructions to his agent cannot be used in order to modify the con- 
 struction of a regular will (/t), or to alter the proper meaning of the 
 
 [b) Reid v. W^alker, 1828, 7 S., 82. In a regular judicial reference, a remit to the 
 tirLiter to explain liis award was made, but only of consent of parties ; Anderson v. Pott, 
 1833, 11 S., 778. (c) Cases in the preceding notes {t), (a), and (6). Sec also 
 
 M'Nair v. Gray, 1831, 5 S., 735 ; affid., 5 W. S., 305. {d) See Carse, Acts of 
 
 Sederunt, 17th Dee. 1783 and 10th Aug. 1784— Arthur v. Callin, 1773, M., 667 ; Hailes, 
 634, S. C.— See Colquhoun v. Corbet, 1784, (H. of Lords) 2 Pat., 626. 
 
 (e) Campbell v. Ralston, 1842, 4 D., 1310— MiUs i-. Albion Ins. Co., 1827, 5 S., 930; 
 affid., 3 W. S., 218— See also Hamilton v. D. of Queensberry's Exrs.,.1833, 12 S., 206. 
 
 (/) Dallas V. Fraser, 1833, 11 D., 1058. {g) Drysdale v. Johnstone, 1839. 
 
 1 D., 413, per L. Gillies. (A) M-Leod v. Cunningham, 1841, 3 D., 1288. 
 
 9 It is competent, in order to determiuo wliether a decree of absolvitor from the 
 conclusions of an action as laid, supported the defence of res judicata in a second action, 
 to read the opinions of the Judges at advising to ascertain the meaning and scope of 
 the decree founded on ; Glasgow, Airdrie, and Monkland Junction Railway Co. v. 
 Drew, 1861, 23 D., 835. 
 
 1" The deed in the case quoted was not only extended but executed.
 
 126 AD.MISSIBIIJTY OF TAROl.E TO MODIFY WRITINGS. § 160- 
 
 term "heirs"' uiuler it (/). In one case the instructions to the 
 agent (admitted to have heen his only guide in preparing the deed) 
 were used in order to fill in the name of a legatee which had been 
 omitted (^•). But this case (as it has been reported) is more than 
 questionable (?). 
 
 § 161. In the cases hitherto noticed, the party's object in ten- 
 dering the proof was to shew that the writing did not correctly or 
 fully set forth the stipulations originally agreed to. It is a differ- 
 ent, and often a difficult, question, wdiether the averment that 
 obligations constituted by writing were modified by a subsequent 
 verbal agreement, may be proved by witnesses. The principles 
 which exclude parole to affect a written contract as ab initio do not 
 apply to such a case. And the only ground on which the evidence 
 could be rejected is, that an obligation which has been constituted 
 by writing cannot be extinguished by parole. But the latter prin- 
 ciple is of a much more limited character than the former ; and for 
 the obvious reason, that although it must be presumed that par- 
 ties make their written contract the only measure of their obliga- 
 tions, they not unfrequently agree to alter and modify these after- 
 wards without executing a new deed. The Court have had consi- 
 derable difficulty in dealing with this class of cases, which have 
 not yet been cleared up by decisions. 
 
 § 162. On the one hand, it has been held incompetent to lead 
 parole proof of an agreement altering a deed, where the adducer 
 does not offer to prove acts of possession by the other party under 
 the new agreement, or mutual actings upon it, or circumstances 
 which shew that it was adopted and proceeded upon by the other 
 party; whereas a proof of facts and circumstances of these descrip- 
 tions has repeatedly been admitted. Thus a vassal who was pro- 
 hibited by his feu-charter from building ale-houses, was not allowed 
 to prove by witnesses that his superior consented to his using one 
 of the buildings as an hotel (m). And parole was held not admis- 
 sible to prove that written instructions to a stock-broker to purchase 
 shares had been altered verbally (n). And in a summary petition 
 by a master against a servant for having deserted his employment, 
 
 (t) Blair v. Blair, 1849, 12 D., 97. As to parole for explaining the term "heirs," 
 see next Title. (A-) Pollock v. Gilmour, 1777, M., 8098, and M., Legacy Appx., 
 
 No. 1. (l) Per L. Cockburn in Blair v. Blair, supra — Hunt v. Hort, 1791, 3 Br. 
 
 C. C, 311. (ot) Scott V. Cairns, 1830, 9 S., 246. (») Stevenson v. 
 
 Manson, 1840, 2 D., 1204.
 
 § 163. AlJMlSSIIillJ'J'Y OF TAlloLE TO MODIFY WIMTINGS. 127 
 
 where the master alleged that a wiitteu eoiitract of service for seven 
 years at thirty shillings per week of wages had heen renounced, 
 and a new one at twenty-live shillings had heen suhstituted for it, 
 the Court held that the allegation could not he proved hy parole (o). 
 They have also rejected parole of the averment that a legacy which 
 had been left by writing had been revoked verbally ( ^j) ; and in 
 several cases it has been held that renunciation of rights and obli- 
 gations constituted by writ could not be proved by parole evi- 
 dence (r). A similar view is also seen in a case where the land- 
 lord in a written lease, which sti[)ulated that the rent should be 
 paid fore-hand, alleged that the lease had fallen in consequence of 
 the tenant having intimated his inability to comjjly with that con- 
 dition. The Court held that the intimation could only be proved 
 by the tenant's writ or oath (s).^ 
 
 § 1(J3. The strict rule which these decisions indicate was re- 
 laxed in the following cases. Where one alleged that a written 
 contract to fish and cure herrings at a certain specified rate had 
 been abandoned by mutual consent, and that a new contract with 
 a different stipulation as to the price had been agreed to, the case 
 was sent to a jury, and on the trial the Lord Chief Commissioner 
 admitted parole of facts and circumstances to prove the new agree- 
 ment, of which no direct evidence was tendered. His Lordship, 
 however, observed, '' To do away with a written agTeement the 
 proof must be solemn and clear, and I shall watch it" (t). Again, 
 where a contract for raising a certain quantity of ironstone at a 
 specified rate per ton payable fortnightly had been entered into by 
 written missives, and the work had been performed, and payment 
 had been made for the first half at a specified rate and for the se- 
 cond half at a lower rate, the Court, in an action for payment of 
 the difference of the second half, held that it was competent to 
 prove by parole that it had been raised at the lower rate under a 
 
 (o) Dumbarton Glass Co. v. Coatsworth, 1847, 9 D., 782. See infra, g 1G6. 
 
 (/<) Houston r. Houston, 1G31, M., 12,307— Whitefoorcl i-. Aiton, 1742, M., 8072. 
 
 (r) Ker r. Slicddau, 1737, Elcli. "Locus PenitenticP," No. 3 — Countess of Argyle v. 
 Shcrift" of Moray, 1583, M., 12,300— L. Craigmillar c. Chalmers, 1039, M., 12,308— 
 Hunter v. Dunn, 1809, Hume D., 584— Broily v. Cromarty's Crs., 1688, M., 12,328— 
 Ersk., 3, 3, 8— Tait, 325. («) Smith v. Robertson, 1831, 9 S., 751.5 
 
 {t) Craig V. Budge, 1823, 3 Mur.. 320. The jury found for the defender, who main- 
 tained the original contract. See also M'Intosh v. M'Tavish, 1828, G S., 992. 
 
 5 The Court refused to allow a proof at large of the intimation, but they held that 
 the tenant had ottered the rent deliito tempore.
 
 128 ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. § J 63- 
 
 verbal contract, which in that respect altered the original written 
 agreement (ii). Their Lordships were a good deal influenced by 
 the fact that the action had not been brought till the working under 
 the contract had come to an end. A similar decision was pro- 
 nounced in a recent case (w), where a tenant founded on a written 
 lease for fifteen years, which stipulated for a grain rent convertible 
 into money at the fiar's prices, but the landlord contended that after 
 four years' possession the parties had agreed verbally that the rent 
 should be fixed in money at a sum, which until the year before the 
 case arose had been considerably less than the converted value of 
 the original grain rent. In support of his allegation, the landlord 
 founded on certain letters written by the tenant craving a reduction 
 of rent, and on the receipts for rent during nine years, none of 
 which made reference to a grain rent ; but he did not produce any 
 proper writs of the tenant proving the alleged alteration on the 
 contract. The evidence, however, was held to prove that there had 
 been an alteration by agreement, and not merely by favour of the 
 landlord. The Court treated the case (which came up by advoca- 
 tion from a Sheriff Court) as a jury question, and while considering 
 that " it is always a hazardous proceeding to allow a deviation from 
 the terms of a written agreement, and one which requires strong 
 proof," they held that the proof was suflicient for the purpose. 
 
 § 164. This is an important case, especially as it occurred with 
 a purchaser from the party who had granted the lease, and with 
 whom the alteration had been arranged. It is thought not to con- 
 flict with a previous decision (x), where a tenant maintaining that 
 his rent under a written lease had been abated by verbal agree- 
 ment, failed to satisfy the Court that the abatement was more than 
 voluntary on the part of the landlord. In another case (?/), how- 
 ever, where a tenant pursuing his landlord for wrongous sequestra- 
 tioD, craved an issue whether the rent under his written lease had 
 been altered by a vcr])al agreement, the Court before sending the 
 case to trial took the unusual course of deciding by anticipation on 
 the mode of proof ; and, finding that the tenant did not aver any 
 written agreement modifying the lease, held that it was incompe- 
 tent to prove that fact by parole. This decision was pronounced 
 with special reference to the terms of the condescendence, which 
 
 (w) Thomson v. Monkland Steel Co., 183G, 14 S., 393. (w) Baillie v. Fraser, 
 
 1853, 15 D., 747. (x) Gibb v. Winning, 28tli May 1829, F. C., and 7 S., 677, 
 
 S. C, noticed in Baillie v. Frasor, supra, per Lord Ivory. (?/) Law v. Gibsone, 
 
 1835, 13 8., 396.
 
 § IGG. ADMISSIBILITY OF I'AROLE TO MODIFY WRITINGS. 129 
 
 showed that the tenant meditated a general pruoi'by witnesses, and 
 had no specific case of acting upon and taking payment under the 
 new lease, as in one of the decisions mentioned al)ove. The Court 
 seem to have considered that the agreement to abate raiglit liave 
 been proved by " facts and circumstances." 
 
 Again, where a contract of copartnery provided that a certain 
 partner was to bear his proportion of the loss, the House of Lords 
 held that the circumstances, including the conduct of the partners, 
 omission to claim, and inconsistent representations throughout a 
 long litigation, proved either tliat tlie real intention of parties had 
 been different, or that a new agreement had been entered into {y). 
 
 § 165. The result of these cases seems to be, that although 
 parole is in general inadmissible to prove that a written contract 
 has been abandoned or altered by a subsequent verbal arrangement, 
 yet if the actings of the parties clearly show that this is the case, 
 the Court will not maintain the writing against the real facts. In 
 such cases, also, direct testimony will be admitted to expiscate the 
 terms of the new agreement, care being taken not to place much 
 reliance on the recollection of the witnesses as to its precise terms. 
 
 § 16G. But where a contract, which in its own nature requires 
 writing, has not merely been modified or limited without its iden- 
 tity being impaired, but has been altered in an essential part, so as 
 to have become substantially a new contract, it is manifest that no 
 evidence except writing will be received to prove the second agi'ee- 
 ment ; for the rule which would have excluded parole of the obli- 
 gation originally, is not obviated by the fact of there having been 
 a previous contract between the parties relating to tlic same mat- 
 ter {z). Thus it is fixed in England that in contracts for which the 
 Statute of Frauds prescribes writing, alterations of this nature re- 
 quire the same kind of proof; e.g., where it was alleged that an 
 alteration had been made on the time of delivery under a contract 
 of sale (a) ; and where one port was said to have been substituted 
 for another in a contract of ship insurance (h). The same principle 
 
 (y) Geddes v. Wallace, 1820, 2 Bligh, 270— See also Maule v. Robb, 1807, Hume 
 D., 835— Hay v. M'Teir, noted ib., 836— Agliouby v. Watson, 1809, ib., 845, as to prov- 
 ing by facts and circumstances tbat the landlord waived his right under a clause in the 
 lease excluding assignees and subtenants. (z) This principle is brought out e 
 
 converso iu the case of Pollock v. M'Andrew, 1828, 7 S., 189, supra, g 156 ; where it 
 was observed by Lord Glenleo that if the party had alleged that the number of pipes 
 had been fixed by a subsequent verbal agreement, that might have been proved by pa- 
 role, (a) Marshall v. Lynn, 1840, Mec. and Wei., 109. (6) Leslie v. 
 De la Torre, cited 12 East.. 583— White v. Parken. 12 East., ib.— 2 Phil., 356— Taylor. 
 753. 
 
 VOL. I. I
 
 130 ADMISSIBILITY OF PAROLE TO MODIFY WHITINGS. § 166- 
 
 is seen in a case of alleged alteration on a written contract of ser- 
 vice, of Avhicli more tlian a year had still to run (c). So the prin- 
 ciple that until a lease for a longer period than one year has been 
 reduced into writing or followed hy rei interventus, either party is 
 entitled to resile, may render parole proof of an alteration on the 
 terms of a written lease unavailing, unless it embrace actings or 
 possession under the new contract. And upon this view the cases 
 above noticed of alteration as to the rent stipulated under a written 
 lease may be reconciled, although the reports do not so distinguish 
 between them. 
 
 § 107. In cases which in their own nature require written evi- 
 dence, a distinction must also be taken between proving the alter- 
 ation in order to show that the original contract has been aban- 
 doned, and proving it to constitute a new contract ; oath of party 
 being always competent for the former purpose, but incompetent 
 for the latter, unless rei interventus has ensued on the contract as 
 so altered (d)}^ 
 
 (c) Dumbarton Glass Co. v. Coatswortli, 1847, 9 D., 732, supra, 2 162. 
 
 (d) See infra, I 242. 
 
 11 On this subject, viz., the effect of a verbal agreement to waive or modify a written 
 agreement, it is thought that the law deducible from the opinions delivered in the House 
 of Lords in the recent and important case of Wark v. The Bargaddie Coal Co., may be 
 stated to be in substance as follows :— An agreement to waive or modify a written sti- 
 pulation may be competently and completely proved by parole evidence alone, parole 
 evidence being, for this purpose, as competent as oath of party, and differing from it 
 only in probative force, and not in competency. But a verbal agreement to waive 
 or abandon a written stipulation, whether proved by parole or by oath of party, 
 is not bimling although it be proved. Either party may resile from the verbal agree- 
 ment and insist on standing by the written agreement ; and, therefore, an averment 
 that there has been a verbal agreement to waive or modify a written stipulation, is, if 
 unsupported by any further averment, irrelevant, and will not entitle the party making 
 it either to an issue or to a reference to the oath of his opponent ; since, although the 
 verdict or oath were in his favour, he nevertheless could not succeed, because there 
 would still remain to his opponent a locus penitentiae. But if to the averment of verbal 
 agreement to waive or abandon a written stipulation, there be added averments that acts 
 amounting in law to rei interventus have followed on the verbal agreement, then such 
 averments will warrant an issue whether the things complained of, as in violation of the 
 written agreement, were done with the consent of the person who complains of them, 
 and the pursuer of that issue will not be restricted in that proof to the writ or oath of 
 his opponent, but may use all the ordinary methods of proof ; and if he give sufficient 
 evidence of the rei interirjitus, and of the verbal agreement, then the verbal agreement 
 will be as obligatory and effectual as if it had been embodied in writing. But although 
 these propositions seem warranted by the judgments delivered in the House of Lords, 
 it may perhaps be doubted whether that case can be regarded as establishing them to 
 their full extent as principles of Scotch law ; as views of the exact import and effect of
 
 § 168. ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. 131 
 
 § 168. It will also be kept in view that while verbal modifica- 
 tions (in wliatever way they are provc<l) maybe maintairio<l against 
 
 the judf^ment, not aiiparriitly cutiroly uiiifcjnn ami fnnsistent, havo been expressed an 
 the bench. 
 
 The action was founded on an alleged violation of a lease of minerals. All the 
 minerals in the lands of Bargaddie were let by a written lease, but the tenants engaged 
 to leave a barrier between the Bargaddic and the adjoining mineral fields. The tenant 
 worked out, at certain places, tlie barrier between Bargaddic and the adj(jining mineral 
 field of Bredisholme ; and the action raised by the proprietor of Bargaddic was founded on 
 this violation of the lease. The tenant stated in defence that the landlord had verbally 
 agreed to waive the stipulation about the barrier, and that he, the tenant, had removed it 
 accordingly in the knowledge and with the acquiescence of the landlord. The Court of 
 Session thought that tliis statement involved two sejjarate defences, the one founded on the 
 verbal agreement, suj-ported by rci intervcntus ; the other on the landlord's acquiescence, 
 apart from, and falling to be dealt with, as unconnected with the verbal agreement ; 
 and they held that there were no sufficient averments to support this latter defence. 
 AVith regard to the former defence, the Court held parole proof of the alleged agreement 
 incompetent ; and, that being so, they held it illogical and incompetent to found on the 
 rei interventus in support of the verbal agreement. To do so, the Lord Justice-Clerk 
 (Hope) observed, would be to reason in a circle ; because, before the actings of parties 
 could be referred to the verbal agreem.ent, it was necessary to prove that agreement inde- 
 pendently of these actings, which, ex hypothcsi, was incomj^etent, there being admittedly 
 no written proof. But in the House of Lords tliis mode of dealing with the defender's 
 case was disapproved of, and it was held that the defence could not be separated as was 
 done in the Court of Session, but that all the grounds of it ought to be considered to- 
 gether. The House agreed with the Court in holding that a written agreement could 
 not be varied or waived by words only, because, so long as matters were entire, there 
 remained a locus penitentiae to the person consenting to the variation or waiver ; but their 
 Lordships held that, if there had been rei intervcntus following on such a parole agree- 
 ment, the agreement was no longer revocable, but became as binding as if it had been 
 made in writing. The Lord Chancellor (Chelmsford) observed that the appellants 
 might very well say that, although separately these two things, consent and acquies- 
 cence, might be insufficient, "■ ye\. juncta juvant"; and the House remitted the cause 
 with a declaration that the Court ought to have directed an issue " "Wliether the barrier 
 coal was worked and removed with the consent of the pursuer ? " 
 
 This case has been more than once explained from the bench, and it is important 
 to keep in view the opinions which have been expressed of its meaning and effect. In 
 the recent case of Sutherland v. Montrose Shipbuilding Co., Lord Cowan observed that 
 the judgment of the House of Lords in the case of Wark went no further than this, that 
 " acts of acquiescence at variance with the terms of a written agreement may be the 
 subject of parole proof "; and, in the same case, the Lord Justice-Clerk (Inglis) stated 
 his understanding of the law applied in the case of Wark to be " that, where there are 
 averments of ac([uiescence in operations inconsistent with the terms of the written con- 
 tract, they may be admitted to proof ; and, if it appear that the acquiescence waa the 
 consequence of a previous arrangement, that it is then competent to prove that arrange- 
 ment." Still more recently. Lord Deas observed that what was decided in the House 
 of Lords was, that the proof of the alleged consent " was not limited to the landlord's 
 writ. The alternative of the landlord's oath, so far as we can see from the reports, was 
 not suggested bv the parties." On the other hand, the view taken by Lord Curriehill 
 
 i2
 
 132 ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. § 168- 
 
 eitlier of the parties to the original contract, they will be unavailing 
 as against a purchaser or other third party who is entitled by law 
 to rely ou the wTitten title (e). 
 
 § 169. Of course the rule by which extrinsic evidence is inad- 
 missible to add to the stipulations of a deed, does not apply to 
 matters collateral to the document ; because on these there is no 
 written agreement between the parties. In such questions, there- 
 fore, the nature and object of the writing must be considered, so 
 that on the one hand obligations or conditions may not be added to 
 a deed designed for recording all the agreement which the parties 
 made on a particular subject, — while on the other hand a writing 
 intended to embrace only certain branches or stipulations of an 
 agreement ought not to be stretched to matters beyond its purvieu ; 
 
 (e) So held where a verbal statement of rent due under a written lease was pleaded 
 against a purchaser of the lessor; Riddick v. Wrightman, 1790, Hume D., 776 — Grant 
 V. Watt, 1802, ib., 777, note. 
 
 was, that the ground of decision was in effect that the piece of ground upon which the 
 operations complained of took place was not included in the lease at all, — an opinion 
 founded, probably, on the consideration that, although the whole of the minerals in 
 Bargaddie were ezfigura verborum included in the lease, the tenants were restricted from 
 working that part of them to which the action referred. Bearing in view these inter- 
 pretations of the judgment of the House of Lords, it seems doubtful how far it can be 
 aflBrmed that parole evidence of an agreement to waive or modify a written stipulation 
 in regard to land is competent and sufficient to establish the existence of the agreement, 
 and that the agreement so established is irrevocable and effectual if rei interventus have 
 followed on it. At all events the principle cannot be extended to the constitution of a 
 contract relative to land. A verbal contract relative to land cannot be proved by parole, 
 but by oath of party only ; while, if so proved, it will be obligatory if followed by rei in- 
 terventus. Hence, if a party aver a verbal contract, and acts constituting rei iiiterventus 
 following on it, he will, at least if he prove the rei interventus, be entitled to refer to his 
 opponent's oath whether there was such a verbal agreement ; but he will not be entitled 
 to a proof at large of the agreement. Nor, probably, could the principle in the case of 
 Wark be applied to the case of a modification of a written contract so essential as truly 
 to create a new contract. In such a case, the party alleging the change would probably 
 be confined to his adversary's writ or oath. Thus, since the judgment in the case of 
 Wark, it has been held incompetent to establish by parole evidence a verbal lease for 
 999 years ; and, in another case, it was held incompetent to establish by parole an agree- 
 ment to allow the builder of a ship two months longer than the time stipulated in a 
 written contract, but in this latter case it was held that there was no rei interventus ; 
 Wark V. Bargaddie Coal Co., 185C, 18 D., 772 ; reversed 1859, 3 Macqueen, 4G7, and 
 81 Jur., 323 and 767— Sutherland v. Montrose Shipbuilding Co., 1860, 22 D., 665, 
 671, 673— Gowan's Trs. v. Carstairs, 1862, 24 D., 1382. The case of Gowan's Trustees 
 has been appealed. See also Edmondston v. Bruce, 1861, 23 D., 995 ; and Granger v. 
 Geils, 1867, 19 D., 1010, opinion of liOrd Deas.
 
 § 170. ADMISSIBILITY OF PAKOLE TO MODIFY WRITINGS. 133 
 
 fur, if it wore, extrinsic evidence would be excluded on matters 
 Avhich the parties purposely loft to be expiscated by tliat means. 
 
 The most prominent illustrations of tliis principle occur where 
 the writing is a short memorandum, in which only certain points 
 of the contract are recorded. Thus in an English case where soon 
 after the sale of a horse the seller had given the purchaser a paper 
 in these words, " bought of G. P. a horse for the sum of £7, 2s. 6d., 
 G. P.," and the purchaser averred that there had been a verbal war- 
 ranty, parole of the warranty was admitted, on the ground that 
 the paper had been intended merely as a memorandum of the trans- 
 action, or a receipt for the price, and not as a written contract of 
 sale (/). So in an action for not taking proper care of a horse, 
 which had been hired upon a memorandum in pencil on a card in 
 these terms, " Six weeks at two guineas, W.W.," Lord Ellenborough 
 admitted parole to prove that at the time of the contract it had 
 been stipulated that, as the horse had a habit of shying, the person 
 who took it on hire was to be liable to all accidents (</). His Lord- 
 ship's opinion well illustrates the rule applicable to these cases : — 
 " The written agreement merely regulates the time of hiring and 
 the rate of pa^^ment ; and I shall not allow any evidence to be given 
 by the plaintiff in contradiction of these terms ; but I am of opinion 
 that it is competent to the plaintiff to give in evidence suppletory 
 matter as part of the agreement." 
 
 § 170, The application of the same principle to writings of a 
 more elaborate nature will be seen from the following illustrations. 
 The agent for a landlord having written to a proposing tenant, ac- 
 cepting his offer for a farm which had been advertised, and the 
 offerer having afterwards signed a minute or memorandum prepared 
 at a meeting with the agent, and containing the sul)ordinato stipu- 
 lations of the intei^ded lease (^\•llich memorandum lie alleged had 
 also been signed by the agent), the landlord refused to complete 
 the arrangement. An action having then been raised at the in- 
 stance of the proposing tenant against the landlord and agent, the 
 landlord was assoilzied on the ground that he had not authorised 
 his agent to conclude a lease, and the agent was allowed to prove 
 by parole the offerer's understanding that he had only authority to 
 make a bargain subject to the landlord's approval (/<). So in an 
 
 (/) Allen V. Pink, 1838, 4 Me. and Wei., 140-144 ; 6 Dowl., CG8, S. C. 
 
 (^) Jeffrey v. Walton, 181G, 1 Starkio R., 267. See a doubtful case on this point ; 
 Cheap V. Philip, 106r>, M., 12,012. questioned by Tait, 334. (A) Dodds v. 
 
 Walker, 1822, 2 S., 81. The action was for implement as agninst the landlord, and 
 failing that, for damages as against the agent.
 
 134 ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. § 170- 
 
 Eugiisli case where the assignment of an indenture bore, as the 
 consideration, that £3, 10s. had been paid b}^ the old master to the 
 new, it was hekl competent to prove that the old master had re- 
 ceived the money from the parish funds to make the payment (i). 
 Again, where a father and son had been joint tenants under a writ- 
 ten lease, the father's executors were allowed to prove ^jrozf^ dejure 
 that the croj) and stocking had belonged to him exclusively, al- 
 though in cases of joint tenancy there is a presumption that the 
 crop and stocking are joint property (k). The ground of this de- 
 cision evidently was, that the written lease was intended for fixing 
 the obligations of the tenants as regarded the landlord, and not for 
 embodying a contract between the lessees as to their respective in- 
 terests. The same principle is strongly manifested in two older 
 cases : in which the question was how one of the joint obligants in 
 a bond could prove that he was only bound as a cautioner, where 
 the question occurred with those in right of the other obligant {!). 
 In the one case the party alleging he was cautioner was allowed 
 a proof before answer, in which he showed that the money had 
 been paid to, and applied to the use of, the other party, and that 
 several communings had taken place between them with a view 
 to the latter granting a bond of relief. Upon this the Court, 
 by a narrow majority, found that the allegation was proved (m). 
 In the other case referred to, the Court " had no doubt of the com- 
 petency of a proof by facts and circumstances," in order to show 
 that one of the joint obligants (who had paid the debt and claimed 
 to rank for the whole sum in the bankrupt estate of the other) was 
 truly a cautioner; and on considering the proof they found the 
 averment to be substantiated (/i).^^ 
 
 Some further illustrations of this principle will be found in a 
 previous section on the necessity for producing the written contract, 
 when the matter in issue is collateral to it (o). The cases on the 
 
 (i) R. V. Inhabitants of Llangunno, 1831, 2 B. and Ad., G16. (k) Kilpatrick 
 
 V. KOpatrick, 1841, 4 D., 109. (1) Such a proof is incompetent as in a question 
 
 with the creditor; supra, § 154. (to) Drummond v. Nicolson's Crs., 1697, M., 
 
 12,329. (w) SmoUet v. Bell and Rannie, 1793, M., 12,854. See also per Lord 
 
 Cuninghame in Lindsay v. Barmcotte, 1851, 13 D., 725. (o) Supra, § 121. 
 
 In Harrowar v. Wells, 1749, Elch. "Prescription," No. 31, a verbal bargain setting hay 
 in steelbow for nineteen years was allowed to be proved at the end of that period, al- 
 though there was a written lease of the same duration which did not contain any clause 
 to that effect. 
 
 12 Proof that a party appearing ex facie of an invoice the vendor, was not so, admitted.
 
 § 172. ADMISSIBILITY OF I'Altol.K To MODlFk' WllITIXGS. 135 
 
 converse rule, that stipulations cannot be added by parole to a writ- 
 ing wliich embodies the whole contract, have also been noticed (p). 
 
 § 171. Where tlie party founding on a deed admits on record, 
 or by writ or oath, tliat it d(jes not contain a true account of the 
 transaction, the door will l)c opened to extrinsic jiroof of the facts, 
 and to parole, if tlieir nature admits of that mode of proof. In 
 such a case the deed is (to the extent of the admission) collateral 
 to the real contract, and inconsistent with it.-'^ 
 
 On this ground where the gi'anter of an absolute disposition, 
 which narrated payment of a price, sued the grantee for a balance 
 of the price as still unpaid, the grantee was allowed to prove prout 
 dejurc his defence that the transaction had really been a security 
 for advances (r). Thus also where it is proved by writings under 
 the hand of the disponee in an absolute conveyance, that it w^as a 
 trust for some purpose, the terms of the trust may be expiscated 
 by the trustees' judicial examination (s), by facts and circum- 
 stances (t), and even by parole proof (u). So where the creditor 
 in a bond admitted in his oath on reference that the consideration 
 was the price of a mare, it was held that a latent defect in the 
 animal might be proved by parole (x). And in an action on a bond 
 in which the consideration set forth was borrowed money, the Court 
 allowed a proof by oath that it had been granted for the price of a 
 horse, and by witnesses that the creditor had agreed to uphold the 
 horse, whereas it was not in sound health (?/). 
 
 § 172. On the same principle when it is admitted on record or 
 by writ or oath, or appears from the deed itself, that it was exe- 
 cuted on a certain condition, parole of non-implement of the condi- 
 tion is admissible.i'^ For example, in an action on a bond for the 
 
 (p) Supra, § ir)6. (r) Miller r. Oliphaiit, 1843, 5 D., 85G. 
 
 (») Muir V. Gemmel, 1805, Hume D., 342. (<) Davidson v. Aikman, 1805, 
 
 M., 14.584, 1 Dow, 1 ; 2 Bligh. 529. S. C— Small v. Speuce, 1833, 12 S., 42. 
 
 (m) Stewart v. Stewart, 1777, 5 Suii., 031, Hailes, 7G2. S. C. (x) Sim v. 
 
 lugUsh, 1674, M., 12,321. (//) Kiimaird v. M'Dougal, 1694, 4 Sup., 184— See 
 
 Brown v. Lawrie, 1676, M., 12,324, wliirli illustrates the sajne principle. 
 
 because the invoice was not necessarily the contract of pai-ties ; Holding c. Elliott, 1860, 
 5 H. and N. Exch., 117. 
 
 13 Blackwood v. Hay, 1858, 20 D., 631. 
 
 1* In an English case it was held competent to prove by parole that parties before 
 they signed a contract hail agreed that it was not to operate a.s a contract, except on 
 fulfilment nf a condition, because, although proof to contradict or vary the terms of an 
 admitted agreement be incompetent, it may be proved that a document wa.s never
 
 136 ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. § 172- 
 
 price of certain deals, where the defence was that the creditor had 
 agreed not to ask payment if he sold more at the same place, and 
 that he liad sold more there, the condition was allowed to be proved 
 scnpfo, and the selling in breach of it j^rout dejure (2). Thus, also, 
 in a suspension of a charge on a bond, the Court, after proof by the 
 creditor's oath that the bond had been granted as for an apprentice- 
 fee, admitted parole evidence that the apprentice had been mal- 
 treated and put away when only half the stipulated time had ex- 
 pired («). And in a suspension of a charge on a bond dated the 
 same day as an indenture with the creditor as master, the Court, 
 holding that the deeds were parts of one transaction, and that the 
 indenture was the consideration for the bond, received parole evi- 
 dence of the creditor's bankruptcy and consequent inability to im- 
 plement the indenture (6). Notwithstanding the ancient dates of 
 these decisions, they seem to be consistent with modern rules of 
 evidence. 
 
 § 173. It has been already observed (c) that a writing not 
 signed by the parties may be made the record and measure of their 
 contract, by their agreeing verbally to be bound by its terms. In 
 such cases the main contract is verbal, the writing being only im- 
 ported into it by a reference ; and therefore all the verbal stipula- 
 tions by which the parties modified the contract contained in the 
 document may be proved by parole. Thus in an English case, 
 where the printed catalogue in a sale by auction mentioned a dress- 
 ing-case with silver fittings, the auctioneer was allowed to prove 
 by parole that before the bidding for it began he stated that it had 
 only plated fittings, and that as such the article was offered for 
 sale ; and the Court held that it lay with the jury to determine on 
 what footing the sale had proceeded (d). On this ground, also, it 
 is thought that when a tenant has continued in possession after the 
 expiry of his written lease, either he or the landlord may prove by 
 parole any deviation from the written contract, which is onlj prima 
 
 (z) Wilkies v. Gordon, 1618, M., 12,407. (a) Aikman, 16C5, M., 12,311. 
 
 (6) Gunn v. Fraser, 1714, M., 12,337. (c) § 113. (rf) Eden v. 
 
 Blake, 1843, 13 Me. and Wei., 614. 
 
 meant to be an agreement; Pym v. Campbell, 1856, 6 Ellis and Blackburn, 370 — 
 Wallis V. Littell, 18C1, 81 L. J. C. P., 100; also, that an undated written contract was 
 intended to operate not from the date of delivery but from a subsequent period ; Davis 
 V. Jones, 1856, 1 7 Scott's C. B., 625.
 
 § 175. ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. 137 
 
 facie evidence of tlic terms of the verbal lease ^vllich has been en- 
 grafted on it (e). 
 
 § 174. The rule which excludes extrinsic evidence in contra- 
 diction of a writing suffers an exception, where it is averred that 
 the writing was not intended to be the record of a contract, but the 
 cover of an ulterior transaction of such a nature that the parties 
 would not have conmiittcd it to writing. Were extrinsic evidence 
 not admissible to prove allegations of this kind, it would be impos- 
 sible to bring such latent transactions to light ; and one of the 
 parties would succeed in using the deed as proof of an agreement 
 essentially different from the true one. In such cases, also, evi- 
 dence by witnesses must be received ; because, if the allegations 
 are true, there will probably not be written proof of them. Accord- 
 ingly, parole and extrinsic evidence is admitted to prove that the 
 consideration of a contract was illegal (/), or a tur^is causa {g). 
 And in a declarator of marriage founded on written acknowledg- 
 ment, the defender may prove that the writing was not executed 
 for the purpose of constituting marriage, but coUusively in order 
 to deceive certain persons into the belief that the parties were 
 married {li)^^ 
 
 § 175. On the same principle, when a deed is challenged as 
 being a fraudulent device to defeat the rights of the granter's cre- 
 ditors, parole of the averment is admissible {i) ; and this holds 
 where the case is laid on the statutes 1621, c. 18, or 1G96, c. 5, for 
 cutting down such transactions {k). 
 
 (e) See Tait, 222— supra, g 113. (/) Paxton v. Popham, 1808, 9 East., 
 
 407, 421— CoUins v. Blantern, 1767, 2 Wils., 341—1 Smith's Lea. Ca., 153— Taylor, 
 748—2 Phil., 307. (g) Lundie v. Douglas, 1681, 2 Sup., 265. 
 
 (A) Stewart v. Menzies, 1841, 2 Rob., 547— M'Inues v. Moore, 1781, M., 12,683— 
 Taylor v. KcUo, 1786, M., 12,687— Maclauehlan v. Dobson, 1796, M., 12,693— Grant v. 
 Mennons, 1812, Fcrg. Coust. Law Appx., 110— Jolly v. Macgregor, 1828, 3 W. and S., 
 85 ; and Campbell v. Kennedy, 1753, note to ib., 135— Campbell v. Sasseu, 1826, 2 W. 
 S., 309— Lockycr v. Sinclair, 1840, 8 D., 582—1 Eraser, 213, 4. (0 2 Bell's 
 
 Com., 244, 240— Cantach v. Rose, 1832, 10 S., 477— Horn v. Hay, 1847, 9 D., 651— 
 Edmond v. Grant, 1853, 16 D., 703— M'Cowan v. Wright, 1852, 14 D., 968, and 15 D., 
 494. {k) 2 Bell's Com., 189, 191, 192— Glen v. Binnie, 1026, M., 12,551— Auld 
 
 V. Smith, 1629, M., 12,552— Riddoch v. Younger, 1639, M., 12,544— Hamilton v. Boyd, 
 
 15 " The contract of marriage has tliis pecidiarity, in which it diflcrs from all other 
 contracts, that, let the document containing a declaration of marriage bo as clear as it 
 may, the cifect of it may nevertheless be taken off by proving that it was written and 
 delivered with other intentions than of constituting marriage ;"/5«- Lord Justice-Clerk 
 (Inglis) in Fleming r. Corbet, 1859, 21 D„ 1034.
 
 138 ADMISSIBILITY OF PAKOLE TO MODIFY WRITINGS. § 176- 
 
 § 17G. The same principle admits parole and other extrinsic 
 e\T.dence to prove the allegation that the parties subscribing the 
 deed did not adhibit a valid consent to it, as in reductions on the 
 ground of force and fraud (l), or minority and lesion (w) ; and 
 where it is alleged that the subscription was obtained on false pre- 
 tences (».), or that when the deed was lying undelivered and blank 
 in the date and disponce's name, a certain party unwarrantably 
 took possession of it, and filled in his own name (o). So parole is 
 admissible to shew that a deed bearing a regular attestation was 
 not signed before witnesses (p). And on the same ground parole 
 was received to prove that a bill had been granted on deathbed as 
 a legacy, had not been delivered, and had been signed by the drawer 
 after the acceptor's death. (r). 
 
 On this principle also witnesses were admitted to prove that 
 the grantee of a deed had fraudulently obtained the grantor's sub- 
 scription to it, without a clause which had been previously arranged 
 lietween them, and the same proof was received to supply the omis- 
 sion (s). The fraudulent suppression of an important clause is 
 equivalent to impetration of a deed which the party did not intend 
 to grant. But the proof of fraud in such a case would require to 
 be clear. 
 
 § 177. Courts which have an equitable jurisdiction, — as all the 
 Courts of law in this country, — may also admit parole evidence to 
 control writings, where the chc^Uenger, without alleging fraud, 
 directly impugns the deed as a fair record of the transaction, so 
 that if his averments are true, the deed could not be enforced with- 
 out violating the real contract between the parties. Thus where an 
 assignation by the proprietor of an entailed estate bore to be ab- 
 solute, both the Court of Session and House of Lords held that it 
 was merely a right in security ; the ratio decidendi being that this 
 olearly appeared to be the real nature of the transaction from the 
 circumstances, one of which was that the negotiation had proceeded 
 
 1670, M., 12,555— Gibb v. Livingstone, 1736, 5 Sup., 897— Hailes, 100, M., 909, S. C. 
 — M'Cowan v. Wright, supra — Edmond v. Grant, supra — Horn v. Hay, supra — Burton's 
 Bank. Law, 144. {I) Barclay v. Barclay, 1674, M., 10,488— Stewarts v. White- 
 
 foord, 1677, M., 16,489— Gray v. E. Lauderdale, 1685, M., 10,497—3 Starkie, 765. 
 
 (ffi) Crawford v. Bennet, 1827, 2 W.S., 608— L. Ballegarno v. Hay, 1683, M. 
 12,327. {n) Moses v. Craig, 1773, M., 12,352. (o) Fordel v. Caribber, 1677, 
 
 M., 12,324 — Menzies v. Hay, 1694, 4 Sup., 147. (p) See tlie chapter on the im- 
 
 probation of deeds, infra. (r) Farquhar v. Shaw, 1757, M., 12,341. Tho proof 
 
 was led again.st an onerous indorsee. («) Wilson v. Purdie's children, 1744, M., 
 
 12,339 —Jones v. Stathain, 1741, 3 Atk., 388.
 
 § 178. ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. 139 
 
 on a proposal by tliu proijrictor's agent for a loan on redeemable 
 annuity (t). In giving judgment in this case Lord Cottenham ob- 
 served, that the English Courts of Ei^uity were familiar with the 
 principles applicable to it. " If it were not competent for a Court 
 of Equity to give effect to a transaction different from what the 
 deeds executed represented to be the character of it, one of the 
 most important branches of its jurisdiction would be cut off, and a 
 security would be afforded to frauds which are now easily detected 
 and defeated." " The only question is the intention of parties." 
 " In ascertaining such inteiition it is competent for the Court to 
 form its judgment upon the whole of the transaction, and upon 
 evidence dehors the deed ; such evidence being used, not for the 
 pur}»ose of i)utting a construction upon the deed, but of superadding 
 an eipiity, controlling the estate and interest given by the deed." 
 Again, where a party in Dundee wrote to a stock-broker in Glasgow, 
 desiring him to purchase certain shares at £1, 3s., and the broker, 
 finding them entered at that price in the Glasgow share list, replied 
 that he had made the purchase, — in an action by the broker for 
 £2, 3s. per share, the Court held that he was entitled to prove that 
 the Glasgow lists had erroneously omitted to notice a call of £1 per 
 share, that the purchaser knew that fact, and that the contract had 
 really been made at 3s. per share of premium (x). This case comes 
 within the principle well stated by Mr Greenleaf, that " parole is 
 admitted to contradict or vary a writing where it is founded on a 
 mistake of material facts, and it would be unconscientious or un- 
 just to enforce it against either party according to its expressed 
 terms" (y). Several cases have occurred in England illustrating 
 the same rule, l)ut involved in specialties as to forms of pleading. 
 They bring out this principle, however, that a Court of Equity will 
 not interfere, unless it be clearly convinced by the most satisfactory 
 evidence, first that tlic mistake complained of really exists, and 
 next that it is a mistake which ought to be corrected (z). 
 
 § 178. The rule by which a written contract is conclusive, 
 only applies in questions between the parties and those deriving 
 
 {t) Scottish Union Insur. Co. v. M. Queensberry, 1842, 1 D., 1203; affd., 1 Bell Ap., 
 183. {x) Carricks v. Saunders, 1850, 12 D., 812. The case having gone to a 
 
 jury, resulted in a verdict for the pursuer ; ib., 922. (y) 1 Greenl., 387. 
 
 (z) Taylor, 750, citing M. Townseud v. Stangroom, 1801, 6 Yesey. 329 — Mortimer v. 
 Shortall, 1842, 2 Drury and Warren, 371, per Lord Chancellor Sugden— GiUespie v. 
 Moon, 1817, 2 Jonson, Ch. Ca. (American), 585, per Ch. Kent. On this subject, see 
 also 1 Story's Eq. Jur., g IGl, et /leq. — Sugden nn Voiidurs ami rurcliasers (184fi), 288 — 
 Jones V. Statham, supra, § 17*3 (s).
 
 140 ADMISSIBILITY OF PAROLE TO MODIFY WRITINGS. § 178- 
 
 right from tliein. Strangers may adduce all evidence which the 
 nature of the facts admit of to modify, control, or add to the in- 
 strument ; for they cannot he held bound by the terms of a deed, 
 in the preparation of which they were not enabled to secure their 
 own interests. There seem to be no Scotch authorities precisely 
 fixing this rule. But it is firmly established in England (a)}^ 
 
 CHAPTER II.— OF THE ADMISSIBILITY OF PAROLE AND OTHER 
 EXTRINSIC EVIDENCE TO EXPLAIN WRITINGS. 
 
 § 179. The next rule as to the conclusive character of written 
 evidence is, that the meaning of the parties to a deed must be 
 gathered from the w^ords of the deed itself, and from these only, to 
 the exclusion of parole and other extrinsic proof of the intention of 
 the parties. The duty of the Court in dealing with the document 
 is not to discover the abstract or secret intention of the parties as 
 contradistinguished from what they have expressed, but to construe 
 and give effect to the words in which they have deliberately set 
 forth their final intention. This rule is a necessary consequence of 
 that illustrated in the immediately preceding chapter ; for, unless 
 the extrinsic evidence would support, it must conflict with and 
 control the legal construction of the deed. In the one case it would 
 be useless, and in the other the admission of it would be a violation 
 of the rule referred to (6). 
 
 § 180. Before considering this subject in detail, it is well to 
 notice what constitutes the deed or other written expression of in- 
 tention, to which the Court must give effect. 
 
 (a) 3 Starkie, 790—2 Pliil., 354— Taylor, 756—1 Grecnl., 350. 
 
 (5) On the general nature of this rule, see Bell's Pr., § 1694 ; per Lord Moncrieff 
 in Blair v. Blair, 1849, 12 D., 109 — 2 AL, 509. The subject is copiously treated in the 
 following hooks ; Wigram on Wills (3d edition), 17, et seq. — 1 Jarman on Wills, 349, et 
 seq.—Z Starkie, 761—2 Phil., 276—1 Greenl., 354— Best on Ev., 246. 
 
 16 The rule that it cannot be proved, except by the writ or oath of the grantee, that 
 a deed ex facie absolute was granted in trust, applies only when the question is between 
 a truster, or one in his right, and a trustee, or one in his right ; and was held not 
 to apply in a case where a party, on being sued for a debt, averred that the pursuer was 
 merely the trustee of another, who was the true creditor, and who had discharged tlie 
 defender; Middleti:>n v. Rutherglen, 1861, 23 D., 526.
 
 § 181. WRITINGS WHICH REFER TO PLANS, &C. 141 
 
 The rule, thou, dut-s not couliiic the Court to the perusal of a 
 single writing ; for a contraet often extends over a number of writ- 
 ings executed with reference to each other ; and an unattested 
 document is sometimes imported into a signed deed. Accordingly, 
 when a deed refers to another document {e.g.^ a list of debts, a 
 specification, or a plan), as supplementing or illustrating its pro- 
 visions, it will be construed in connection with that document ; 
 which by the reference is incorporated into and made part of it. 
 This is the constant practice in regard to deeds which refer to 
 plans (c) ; and Acts of Parliament containing similar references 
 are construed in the same way {d). So when a contract for con- 
 structing a railway, machinery, or the like, refers to a specification 
 of the work, or to a scale of prices, it is read as if the document 
 referred to had been embodied in it (c). And written leases which 
 bear reference to rules made by the proprietor for his whole estates, 
 are treated as if these rules had been engrossed in each deed (/). 
 On this principle, also, in a question whether a certain forest, which 
 was not specified in an old decree of valuation of teinds, was really 
 embraced by it, where the decree was endorsed upon and made 
 special reference to an antecedent scheme of valuation, the Court 
 admitted the light which the scheme threw upon the question ; and 
 finding that it did not embrace the forest, they held that that sub- 
 ject had not been valued (</). In like manner, the list of debts re- 
 ferred to in a composition-contract is binding on the bankrupt and 
 his cautioner Qi)} 
 
 § 181. On the same principle where a personal bond by a vassal 
 bore that it was in implement of certain articles of roup, and partly 
 narrated them, the Court looked at the articles in a question 
 whether the bond was to bo regarded as a perpetual obligation on 
 
 (c) See, for example, Oswald v. Lawi-ie, 1828, 5 Mur., 9— Fowler v. Macartney, 1831. 
 s., 705— Watson v. Kidston, 1839, Macf. R., 213. (</) Maule v. MoncriefT. 
 
 1840, 6 Bell's Ap. Ca., 333— N. British Ry. Co. v. Tod, 1846, 5 Bell's Ap. Ca., 184, re- 
 versing 8 D., 726. (fi) Aberdeen Ry. Co. v. Blaikie, 1851, 13 D., 527— Wilson 
 V. Glasgow and S. Western Ry., 1851, 14 D., 1. (/) Gordon v. Robertsons, 
 1825, 3 S., 656 (reversed on merits, 2 W. S., 115)— Gordon v. Andersons. 1828, 3 W. 
 S., 1. (^) Cameron v. M'Pberson, 1853, 15 D., 657. (A) Atkinson v. 
 Walls, 1833, 11 S., 429— Dickson v. Barbour, 1828, 6 S., 850. See also Gordon's Trs. 
 1-. Glen, 1828, S., 393— Smith v. Wilson, 1824. 3 S., 393. 
 
 1 As to the eft'ect of a reference in a settlement t«i a list of legatees, see Sprot v. 
 Pennycuick, 1855, 17 D., 840; and Cooper v. Mackenzie's Trustees, 1860, 22 D.. 880; 
 the questions in both cases arising out of the same deeds.
 
 142 WRITINGS WHICH REFER TO PLANS, &C. § 181- 
 
 the vassal, or as one which terminated on his disponing to a bona 
 Jide purchaser (i). Again, where a projected railway company and 
 a proprietor, through whose lands their line ran, entered into an 
 agreement, which stipulated that the company should be allowed 
 to take land beyond what was specified in their statutory notices, 
 and which bound the parties to submit all questions between them 
 to a certain person as referee ; and where the parties afterwards 
 executed a deed referring to that person all demands, claims and 
 questions at the instance of the proprietor against the company, — 
 it was held that the deed of submission must be read with and con- 
 strued by the previous agreement, and consequently that the arbiter 
 had power to authorise the company to take land not included in 
 their statutory notices (,/ ). And where a proposed sale of land by 
 a town council had been advertised in terms of an Act of Parlia- 
 ment, and had been carried out under articles of public roup and a 
 subsequent disposition in favour of the purchaser, both of which 
 documents mentioned the subjects as having been thus advertised, 
 it was held competent in a question as to their boundaries to look at 
 the advertisement, which was regarded as an integral part of the 
 contract, and necessary to its validity (k). The three last cases 
 shew that the competency of construing one deed with reference 
 to another is not limited to cases where the documents are contem- 
 poraneous, but applies wherever there is sufficient ground for hold- 
 ing that they are mutually dependent as parts of one transaction. 
 
 § 182. So strong is the principle of construction thus noticed, 
 that the Court wall not receive the main contract without the 
 document to which it refers, where that is " of such a nature as to 
 affect the meaning of the part produced in relation to the matter 
 which it is the object of the writings to prove" (l). And an inter- 
 locutor in a process cannot be put in, unless it is accompanied by 
 such other proceedings in the case as are necessary for making that 
 which is tendered intelligible (w). But, on the other hand, the 
 Court will not look at the subsidiary document except in so far as 
 it is incorporated into the main deed by the reference (w) ; the na- 
 ture and object of which must therefore be kept in view in consi- 
 dering its effect. For example, where a will merely mentioned by 
 
 {i) Aberdeen College v. Lady Hay, 1852, 14 D., 675— Brown v. Webster, ibid. 
 
 {j) Renton v. N. British Ry. Co., 1847, 9 D., 1209. {k) Davidson v. Mag. 
 
 of Anstruther, 1845, 7 D., 342. (0 Per Lord FuUertou in Thorn v. N. British 
 
 Bank, 1850, 13 D., 134— Watson v. Kidston, 1839, Macf. R., 213. (/») Beve- 
 
 ridge v. Scott, 1822, 3 Mur., 105, 6. (w) N. British Ry. Co. v. Tod, 1846, 5 
 
 Bell's Ap. Ca., 201, per Lord Cottcnhani, Ch.
 
 § 183. WRITINGS WHICH REFER TO PLANS, &,C. 143 
 
 way of narrative that tlu; testator liud executed a deed of entail, 
 the heir under the latter deed was held not to be excluded from 
 challenging it, in consequence of his having taken a bequest under 
 the will ; whereas, if the two deeds had been read together as one 
 settlement, he would not luive been allowed to approbate the one 
 and reprol)atu the other (o). 
 
 § 183. It follows from these principles, that when parties in- 
 tend their written contract to be construed in connection with any 
 document beyond or "dehors" it, that intention must be either 
 expressed or (dearly implied in the main deed. Accordingly where 
 a plan was merely exhibited at entering into the contract, without 
 being executed along with the deed, or imported into it by a refer- 
 ence, the deed must be construed independently of it {p). This 
 rule holds a fortiori, where a reference to a plan or other document 
 was deleted in adjusting the draft of the deed (r). So w^here A and 
 B jointly signed a promissory note to a certain society for money 
 wliieh A had borrowed, and at the time of the loan a printed 
 but unsubscribed book containing the society's rules was given by 
 the society to B, — it was held that B could not resist payment on 
 the ground of an agreement as contained in the book that he should 
 have notice before proceedings were raised against liim, the book 
 mentioning that such was the course adopted by the society in 
 making good their claims (s). There is a case, however, in w^hich 
 the magistrates of Edinburgh were interdicted from building in 
 the New Town on certain ground marked as pleasure-ground on a 
 plan which had been exhibited to the feuars, but wdiich was not 
 referred to in their charters. The ratio decidendi was, that the 
 magistrates had held out to the public that the city would be built 
 in conformity mth the plan, and on that footing had obtained 
 statutes from the legislature and large contributions from the people 
 of Scotland, chiefly with a view to the amenity of the city, to which 
 the pleasure-ground in question very much contributed (f). But 
 
 (o) Urquhart v. UrquLart. 1853, 13 D., 742; affirmed, 14tli July 1853. 
 
 (p) Ftoflees of Hcriofs Hospital v. Gibson, 1814, 2 Dow, 301 — Gordon i-. Marjori- 
 banks, 1818, 6 Dow, 87, affirming. (The Court of Session decision will be found iu a 
 note to Young & Co. v. Dowar, iu/ra) — Squire v. Campbell, 1836, 1 Mylne and Craig, 
 459— N. Brit. Ry. Co. i'. Tod, supra, (n). See also Stewart i-. Burke, 9th Dec. 1820, F. 
 C. — contra, Young v. Dewar, 17th Nov. 1814, F. C, and Schultze v. Campbell, 29th 
 Nov. 1815, F. C. (r) Campbell v. Boswell, 1841, 3 D., G39— Guthrie v. Cochrane, 
 
 184G, 19 Sc. Jur., 69. (s) Brown r. Langley, 1842. 4 Man. and Gran., 466. 
 
 (t) Deas V. Town of Edinbur-h, 1772. 2 Pat. Ap. Ca., 259, reversing. Perhaps this 
 case mav be brought under tlir principle noticed in 9 180. infra.
 
 144 WRITINGS WHICH REFER TO PLANS, &C. § 183- 
 
 this decision was pronounced in a bill-chamber case, and left the 
 question of right to be settled afterwards. It has been doubted in 
 the highest quarter (w). The proprietors of ground having procured 
 a feuing plan, on which various stances and proposed streets were 
 delineated; and certain stances which were thereafter feued having 
 been described in the feu-contract as bounded by certain streets 
 and otherwise, as shown on the feuing plan, which however was 
 not signed with reference to the contract; it was held that the re- 
 ference was merely for identification, and did not incorporate the 
 plan into the contract (v), 
 
 § 184, Whether the case of Deas v. Town of Edinburgh was 
 properly decided or not, there is no doubt of the principle, that the 
 main deed will be construed on the footing of the subsidiary docu- 
 ment being imported into it, although that is not expressed, if it is 
 clearly deducible from their mutual terms and purposes. Thus 
 where arbiters had made up a detailed state at pronouncing their 
 decree, the Court allowed it to be referred to in a question whether 
 they had exceeded their powers, that being doubtful on the decree 
 alone (cc). On the same principle, where a party has left several 
 deeds of settlement or codicils unrevoked, they will be read together 
 as one deed, and as mutually explaining each other, whether they 
 were executed on the same day (y), or at considerable intervals (2).^ 
 It would even seem that a codicil which has been revoked may be 
 looked at as explaining the testator's intentions under his will (a).^ 
 Thus also, where a party resident abroad executed an absolute dis- 
 
 {u) Per Lord Chancellor Eldon iu Gordon v. Marjoribanks, supra, and Feoflfees of 
 Heriot's Hospital v. Gibson, supra. (u) Johnston v. Robertson, 1854, 16 D., 1049. 
 
 (z) Steele v. Steele, 22d June 1809, F. C, Session Papers. See also Bell t;. Halli- 
 day, 1825, 4 S., 286. (y) Fergus v. Fergus, 1833, 11 S., 862. 
 
 (z) Watson v. Watson, 1841, 3 D., 522— Robertson v. Ogilvy's Tr., 1844, 7 D., 286 
 — Grant v. Stoddart, 1849, 11 D., 860 (reversed on merits, 1 Macq., 163)— Ogilvy v. 
 Cumming, 1852, 14 D., 363— Baron Norton's Tr., 1851, 13 D., 1017 (compared with 
 Bowie V. Bowie, 1801, Hume D., 765). See an old case as to three entails and a bond, 
 which the Court treated as one deed; Elies v. IngHstoun, 1669, M., 16,999.2 
 
 (a) Adv.-Gen. v. Smith, 1852, 14 D., 583. See contra, Hughes v. Turner, 1835, 8 
 My. and Kee., 666. 
 
 2 Baird v. Jaap, 1856, 18 D., 1246 — Provost and Magistrates of Dundee v. Morri.'?, 
 1858, 3 Macqueen, 134 ; reversing judgment of Court of Session. 
 
 3 Erased words in a testamentary writing may be looked at for the purpose of show- 
 ing what the testator had at one time intended, and what he knew when ho wrote the 
 deed : per Lords Cranworth and Wensleydale, in Provost and Magistrates of Dundee v. 
 Morris, supra.
 
 §186. WRITINGS WHICH KEFEU TO PLANS, <fel'. 14.') 
 
 positiou, but in the letter in whieli he transmitted it to the disponee 
 stated that he granted it only in trust and on the faith of a back 
 bond being prepared without delay, and where the disponee received 
 and acted under the deed in the knowledge that the granter had 
 made that intimation, the letter was read along with the deed, as 
 limiting the disponee's right to trust (b). And where the bond for 
 a certain sum had been executed the same day as an indenture be- 
 tween the grantee as master and the grantor's brother as appren- 
 tice, the Court found that the coincidence in date was relevant to 
 presume that the indenture and apprentice-fee therein mentioned 
 were the consideration of the bond, tlie debtor "astructing the same 
 by the writer and instrumentary witnesses" in the deeds (c). 
 
 § 185. If the main deed expressly refers to anotlier writing, 
 the Court will admit parole to identify that writing (d)} But the 
 proof so adduced will require to be clear and conclusive ; otherwise 
 a different document might be imported into the deed from that 
 which the parties intended (e). Except where the main writing 
 expressly refers to another document, or where a coincidence among 
 writings is manifested by their mutual purposes, the Court will not 
 allow them to be connected by parole (/).^ 
 
 § 186. Yet in cases of contract or obligation, if separate docu- 
 ments indicate, without clearly proving, that they were meant to 
 be combined, the proof may be supplemented by showing that the 
 parties acted upon them on the footing of their coincidence. For 
 example, where a contract for building a corner house specified the 
 cost of the several parts of the w^ork, and was executed according 
 
 (6) Eobertson v. DiifF. 140, 2 D., 275, particularly Lord Fullcrton's opinion. 
 
 (c) Gun V. Frascr. 1714, M., 12,335. See also Gale i\ Williamson, 1841, 8 Mee. and 
 Wei.. 405. (rf) Inglis v. Harper, 1831, 5 AV. S., 785— M-Leod v. M'Leod, 1824, 
 
 3 Mur., 432— Hodges v. Horsfall, 1829, 1 Russ. and My., 116— Clinan v. Cooke, 1802, 
 1 Schoales and Lef., 33. (e) Hughes v. Gordon, 1819, 1 Bligh, 287— Hodges v. 
 
 Horsfall, supra — Clinan v. Cooke, su2}ra. (/) Smart v. Prujean, 1801, 6 Vesey, 
 
 5C0— Taylor. 755. See also Mackenzie v. Dunlop, 1853, 10 D., 129, 136. 
 
 4 Walker v. Caledonian Railway Co., 1858, 20 D., 1102, per Lord Justice-Clerk Hope. 
 
 5 A feu was described in a fou-contract as bounded " on the north by a road running 
 across my seven roods of land," and the question arose whether the feuar was entitled 
 to the use of a road passing across tho seven roods, from one end to the other, or merely 
 to a road which was made across part of the seven roods. Tlie Court, in determining 
 the question, rca<l the contracts under which the rest of the seven roods was feued ; 
 Fiinister v. Milne, 1860, 22 D., 1100. So in construing the term "fallow-break," occur- 
 ring in a lease, the Court read previous leases of the same farm ; Hunter v. Miller, 
 1862, 24 D., 1011. 
 
 VOL. I. K
 
 146 AVRITINGS WHICH REFER TO PLANS, &C. § 186- 
 
 to a plan ^vbicll was shewn to the contractor before the work began, 
 but was not referred to in the deed, the Court held the contractor 
 bound by the plan, as if it had been expressly referred to in the 
 aoTeement (</). And where lands had been advertised to be let for 
 eio'hteen years, and a lease had been executed, which contemplated 
 several years' duration but omitted the number, and where posses- 
 sion for some years had followed, during which the tenant made 
 considerable outlay, the Court held the term of the lease to be 
 eio-hteen years (h). This view is also supported by the cases of 
 Deas against the Magistrates of Edinburgh {i), and Robertson 
 against Duff (,/), already noticed. The principle of these cases is, 
 that the conduct of the parties is the best expositor of their con- 
 tracts; and a party lies under a personal exception against repudi- 
 ating the explanation which he has put on his own deeds.^ 
 
 § 187. The foregoing paragraphs tend to illustrate e converso 
 the rule noticed at the outset of this chapter,— that a writing in 
 which a person has recorded his final intentions may not be ex- 
 plained by extrinsic evidence. This rule forms a branch of a much 
 wider subject — the principles of construction of deeds; which will 
 require to be noticed here in order to make the rule in question 
 intelligible. 
 
 § 188. First — The primary rule of construction is, that the 
 words of every deed are to be understood in their plain, ordinary, 
 and proper acceptation {k). Under this rule a deed is not con- 
 strued by strictly etymological, any more than by a vulgar and inac- 
 curate, interpretation; but according to the meaning which persons 
 of ordinary intelligence naturally attribute to its language (l). 
 
 § 189. Secondhj—li it is clear from some parts of a deed that 
 the granter has used certain words in a peculiar or inaccurate sense, 
 that will be held to be their meaning in other parts of the deed 
 
 (g) Scott V. Hatton, 1827, 6 S., 233. (A) Russell v. Freen, 1835, 13 S., 752. 
 
 ({) Supra, ? 183. {j) Supra, ? 184. {k) This rule, which requires uo 
 
 authority in 'its support, is stated in 1 Bell's Com., 432-Bell's Pr., § 524-Wigram on 
 WiUs, 15 (proposition i)— 2 Jarman, 743 (proposition xvi)— 2 Phil., 257—1 Greenl., 
 355— Thellusson v. Woodford, 1799, 4 Vesey, 329, per Alvanley, Master of the Rolls- 
 See Doe d. Winter v. Perratt, 182G, 5 Barn, and Cress., 77, per Justice Holroyd— Ro- 
 bertson V. French, 1803, 4 East., 135, per Ellenborough, Chief-Justice. 
 
 {I) 1 Bell's Com., 432— See also Lawson v. N. British Ry. Co., 1850, 12 D., 1250— 
 The text does not embrace the peculiar rules for construing entails. 
 
 6 Wri^'ht V. Earl of Hopetoun, 1858, 20 D.. 955.
 
 § 192. ADMISSIBILITY OF PAR(JLE TO EXPLAIN WRITINGS. 147 
 
 where tliey occur in tlie same connection, or appear to be used in 
 the same signification (wi). 
 
 § 190. On this ground the terms "heirs" and " heirs male" have 
 been construed to mean the special class of heirs mentioned in the 
 context of the deed {n). The same principle is illustrated by the 
 cases of Westlake v. Westlake, and Castlcton v. Turner, noticed 
 afterwards (o). It applies where the peculiar meaning is manifest 
 from one or more of a scries of deeds which embody a single trans- 
 action (jj); while, on the othe;- hand, any peculiar sense which a 
 party has attributed to words in a separate and independent deed, 
 will not be regarded (q). The same principle is illustrated by a 
 class of cases noticed afterwards (r), in which the word" heirs" 
 occurring in later deeds taken by a certain party is construed to 
 mean the heirs of provision pointed out by his previous settlement ; 
 because it is presumed that he meant to favour the class of heirs 
 for whom he had already shown his preference. 
 
 § 191. Thirdly — The meaning of a deed having thus to be dis- 
 covered from its own words, extrinsic evidence cannot — except in 
 some cases of ambiguity {s) — be admitted for the pui-pose of ex- 
 plaining it, or of shewing the intention of the parties under it (t). 
 
 § 192. Accordingly, it is incompetent to prove by parole that 
 by "acre" the contracting parties meant Scotch, and not Imperial, 
 acre {u);'' and when the proper legal construction of the term 
 
 (/«) Wigram, 15 (proposition i) — 2 Jarman on "Wills, 744 (proposition xviii) — 2 
 Phil., 275—1 Greenl., 355— Royle v. Hamilton, 1799, 4 Vesey, 437, compared with 
 Winterton v. Crawford, 1830, 1 Rus. and Mylne, 407. («) Roxburghe case, 1807. 
 
 M. " Tailzie," No. 13 ; affd. on appeal, 5 Wils. and Sh., Appx. — Moodie v. Anderson, 
 1829, 7 S., 743— Hunter v. Nisbet, 1839, 2 D., 16. (o) § 193. 
 
 {p) Colegrave v. Manby, 1826, 2 Russ. R., 252— Wigram, 16, note— See KeiUer v. 
 Thomson's Tr., 1824, 3 S., 396, infra, § 208, and see supra, I 180, et seq. 
 
 {q) Doe d. Brown v. Brown, 1809, 11 East., 441. (r) § 219. 
 
 (.?) g 213, et seq.— I 221. {t) "Wigram, 17 (proposition ii)— 1 Greenl., 354 — 
 
 2 Phil., 282. Accordingly, the Lord Chief Commissioner rejected the evidence of the 
 Lord President tendered in explanation of the written rules of a jail, although tliey had 
 been prepared under his approval ; Macfarlane v. Young, 1824, 3 Mm-., 409. 
 
 (m) Thomson v. Garioch, 1841, 3 D., 025. 
 
 7 It was held that the meaning of the term " acre " was fixed by the Acts, 5 Geo. 
 IV, c. 74, and 5 and 6 Will. IV, c. 03 (the latter prohibiting the use of local weights 
 and measures), to mean imperial acre. But where goods were sold at a price " per stone, 
 and each stone to consist of 22 pounds," whereas the Act 5 and Will. IV, c. 63, § 11, 
 provides that the weight denominated a stone shall consist of 14 standard pounds 
 avoirdupois ; it was held that the bargain was not null under the Act, but that the sale 
 
 k2
 
 148 ADillSSIBlLITY OF PAROLE TO EXPLAIN WHITINGS. § 192- 
 
 " heirs" has been ascertained, with reference to the nature of the 
 subject conveyed and the destination in any previous deeds by the 
 same party, his intention to favour a particuhir cLass of heirs can- 
 not be proved by parole (v), or by a holograph note of directions 
 from which his agent prepared the deed (u'). So where articles of 
 roup in a judicial sale were clearly expressed, effect was given to 
 their proper construction, and the evidence of the common agent 
 who had prepared them, and a correspondence between him and 
 the judicial factor, were held inadmissible for the purpose of giving 
 them a different meaning (x). It is therefore incompetent for one 
 of the parties to a contract to prove by extrinsic evidence what he 
 intended by the words in the deed {y). Nor can one of the con- 
 tracting parties examine the other as a witness, upon his under- 
 standing of the words of the contract, when it is founded on by a 
 person in right of that other party (2). 
 
 § 193. On the same principle, where a party devised to 
 "Matthew Westlake my brother, and to Simon Westlake my bro- 
 ther's son," it was held in England that Simon the son of Matthew 
 was intended; and proof that the testator had declared his intention 
 to favour Simon, the son of another brother, was held inadmis- 
 sible (a). And where the testator left provisions to his wife and 
 niece (who were the only females named in the will), and the 
 latter part of the deed contained a certain devise to " her," Lord 
 Hardwick, finding that in other places throughout the will the tes- 
 tator had applied " her " to his wife, held that the word had that 
 meaning in the place in question, and therefore refused to admit 
 parole to prove whether the wife or niece had been intended (6). 
 
 {v) E. Selkirk v. Douglas, 1762, M., 4369 (5th point) and M., 12,350; affd. 1779, 2 
 Pat. Ap. Ca., 449— Shaw v. Forbes, 1687, M., 4,22,^— contra Weir v. Steile, 1745, M., 
 11,359 ; which was compromised before final decision ; see Elch. " Presumption," No. 17 
 —See § 219. {iv) Blair v. Blair, 1849, 12 D., 97. See also Goodinge v. 
 
 Goodinge, 1749, 1 Ves. Sen., 230 — Murray v. Jones, 1813, 2 Ves. and Bea., ^l^— contra, 
 PoUock V. Gilmour, 1777, M., 8098, and M., Appx. " Legacy," No. 1, infra, § 211. See 
 g 219. [x] Stevenson v. MoncriefF, 1845, 7 D., 418. See also Mackenzie v. 
 
 Dunlop, 1853, 16 D., 129. {ij) Pollock v. Turnbull, 1827, 5 S., 195— Threshie v. 
 
 Hyslop, 1833, 12 S., 105- Florence v. Florence, 1832, 10 S., 326. [z) Dunlop v. 
 
 Lambert, 1837, 15 S., 884, 1232 (reversed on merits, M'L. and Rob., 663)— Vertue v. 
 "Ward, 1843, 5 D., 1251. {a) Doe d. Westlake v. Westlake, 1820, 4 B. and Aid., 
 
 57. {h) Castleton v. Turner, 1745, cited 2 Ves. Sen., 216. 
 
 was at so much for each 22 pounds; Robertson v. Gow, 1858, 20 D., 1170— Giles v. 
 Jones, 1855, 24 L. J. Exch., 259. Parole evidence is not admissible to explain a word 
 defined by statute; Smith's Leading Cases, 5th edition, i, 534.
 
 § 1 1);"). ADMISSIBILITY OF l^VIKJJ.K TO KXl'LAIN WRITINGS. 140 
 
 It follows from tlio rule thus noticcil, that when a written contract 
 does not contain technical words, the Court will construe it, and 
 will limit the inquiry before the jury to the question whether it has 
 been implemented (c).^ 
 
 § 194. Fourthly — When a deed contains words unknown in or- 
 dinary phraseology, these must be explained by extrinsic evidence, 
 on the same principle hy which a deed written in a foreign language 
 must be translated by interpreters. When the technical expres- 
 sions in the deed have been explained, it is construed as if the 
 words of interpretation were substituted for those in which the 
 deed is expressed {d). 
 
 § 195. On this principle the word "soum" (pasture for a certain 
 number of sheep or cattle) may be explained by proving its cus- 
 tomary meaning in the district to which the deed applies (e). 
 When a contract to execute work is expressed in terms short and 
 unintelligible, parole of their meaning is admissible (/). So parole 
 evidence was received to prove that a "cutting shop" included an 
 engine-house and stalk {(j). On the same principle, where one has 
 been in the habit of designating certain persons or things by pe- 
 culiar terms or nicknames, the meaning of these words when oc- 
 curring in his writings may be explained by extrinsic proof, — as in 
 a case where a legacy had been left to "Mrs G.," and parole was 
 admitted to shew that the testator had been in the habit of calling 
 a Mrs Gregg by that abbreviation Qi). So the words "bankers" 
 and "mods.," occurring in the will of a sculptor, were explained by 
 evidence of persons in the same profession {i). On this principle, 
 also, in construing an old deed, the Court will look at other deeds 
 of the period in order to explicate its phraseology {h). 
 
 (c) Haldano v. Gray, 1842, 4 D., 1307— Maxtou v. Brown, 1839, 1 D., 367— Jaffray 
 V. Simpson, 1835, 13 S., 1122— Wilson v. Glasgow and S. West. Ry. Coy., 1851, 14 D., 1 
 —See also Calder i-. Aitcliison, 1831, 9 S., 777 ; aflFd., 5 W. S., 410. 
 
 {d) 1 Bell's Com., 433 — Wigraui, 48 (proposition iv) — 2 Phil., 277. 
 
 (e) M'Kcuzie v. JI-Rae, 1825, 4 S., 146. See a similar case as to the meaning of 
 '■ out-town multure " in a lease ; Cochrane v. Wallace. 1820, 2 Mur., 297. 
 
 (/) Sweet V. Lee. 1841, 3 Man. and Grang., 452. {g) Watson v. Kidston, 
 
 1838, ]\Iacf. R., 213 ; 1 D., 1254. (/i) Abbot v. Massie, 1706, 3 Vcs., 148, ex- 
 
 plained by Baron Rolfe in Clayton v. Lord Nugent, 13 Mee. and Wei., 204. 207— See 
 also Blundcll v. Gladstone, 1841, 11 Sim., 467— Taylor, 784. (/) Goblet r. 
 
 Beechy, 1829, 3 Sim, 24, as noticed in Wigram. 179, 185. But see Doe d. Oxenden v. 
 Cliichister, 1810, 4 Dow, 65, infra, § 206 (m). [k) Roxburgh case, 1810, per L. 
 
 Ch. Eldon, 5 W. and S., Apx.— per L. Moncricff in Blair v. Blair, 1849. 12 D.. 110— See 
 also Cochrane v. W^allace, 1820, 2 Mur., 296. 
 
 s Where parole evidence is given of the contents of a lost document, its construction 
 is for the Court nut frr the iurv ; Berwick c. Horsrull, 1858, 4 Scott's C. B. N. S., 450,
 
 150 ADMISSIBILITY OF PAKOLE TO EXPLAIN WRITINGS. § 196- 
 
 § 196. Fifthly — A large proportion of the technicalities of trade, 
 science, and the like, have been engrafted on words which have a 
 kindred meaning in ordinary language. It follows from the rule 
 last noticed that extrinsic evidence is admissible to show the pecu- 
 liar meaning of words so used ; for law presumes that the words of 
 every deed have been employed with reference to its subject mat- 
 ter (l).^ 
 
 § 197. Thus parole was admitted to prove that in the contracts 
 of a particular trade a "thousand" rabbits meant twelve hun- 
 dred {ni) ; that a contract for three j'^ears' service in a theatre at a 
 certain rate " per week" only referred to the weeks during the 
 theatrical season (w) ; that "cotton in bales" meant in compressed 
 bales (o); that "good" barley was diiferent from "fine" barley, so 
 that an offer by letter to sell the one was not accepted by an an- 
 swer agreeing to buy the other {p). So it may be shewn that a 
 contract for a number of pockets of hops "at 100" means at that 
 price per ton {r)}^ On the same principle, where a dissenting con- 
 
 (0 1 BelPs Com., 433. {m) Smith v. Wilson, 1832, 3 B. and Ad., 728. 
 
 {n) Grant v. Maddox. 1846, 15 Mee. and Wei. 737. (o) Taylor v. Briggs, 
 
 1827, 2 Car. and Pa., 525. {p) Hutchison v. Bowker, 1839, 5 Mee. and Wei., 
 
 635. {r) Spicer v. Cooper, 1841, 1 Gal. and Dav., 52. 
 
 9 In construing the term fallow-hreak in a lease the Court read previous leases of 
 the lands and a report by a skilled agriculturist, but refused a proof of the tenant's 
 averment that the term was technical, and that its meaning was different from that put 
 on it by the reporter, and ultimately adopted by the Court ; Hunter v. Miller, 1862, 24 
 D.. 1011. 
 
 1*^ Thus parole proof was admitted to prove that pig iron. No. 1, meant Clyde and 
 Dudyvan iron ; Mackenzie v. Dunlop, 1856, 3 Macqueen, 22 ; — that an obligation to load 
 on board a vessel at Trinidad a full and complete cargo of sugar molasses, imported an 
 obligation to load a cargo packed in a manner customary at Trinidad, though there was 
 no custom of the kind at London, where the contract was entered into ; Cuthbert v. 
 Gumming, 1855, 11 Hurl, and Gord., 405 ; — that a bale of gambier meant, in the Gam- 
 bier trade, a bale of a particular size and description ; Gorrissen v. Perrin, 1857, 2 Scott's 
 C. B. N. S., 681 ; — that in the oil-trade oil is held to be " wet " if it contain any water 
 at all, however little ; Warde v. Stewart, 1 Scott's C. B. N. S., 88 ; — that a contract for 
 best palm oil was satisfied if the oil delivered contained a substantial portion (as one- 
 fifth) of best oil; Lucas v. Bristow, 1858, Ellis and Ellis, 907. 
 
 Where the terms of the particular contract have, besides their ordinary and popu- 
 lar, a scientific and peculiar meaning, the parties who have drawn up the contract, 
 with reference to that particular department of trarle or business, must fairly be taken 
 to have intended that the words should be used, not in their ordinary, but in their 
 peculiar sense. This is only acting upon the sound principle that contracts are to be 
 interpreted and carried out according to the intention of the parties ; and it is only giv- 
 ing effect to that principle when one gives to the words their peculiar as distinguished
 
 § 109. AD.MISSlHll^ITY OF PAltOlJ'! To KXl'LAIX \VJ{lTIN(iS. 
 
 1.01 
 
 gregatiou signed a ''cull" or iuvitatiuu tu a certain clerg^'man, which 
 bore, "on your accepting of this call we promise you all dutiful 
 respect, &c., together with a suitalde maintaiiiance;" and where the 
 minister having accepted the call sued the subscribers for a certain 
 salary, they were allowed to i[)r oyo, prout dejure, that according to 
 the law and practice of their church and the mutual understanding 
 of the parties, the words referred to were not intended to constitute 
 a civil obhgation (s). And where a testator left certain bequests 
 to "godly persons" and "godly preachers of Christ's holy gospel," 
 it Avas held in a leading English case to be competent to prove that 
 in the religious body tu which the testator adhered these terms w^ere 
 used to designate a certain description of persons and preachers (t). 
 
 § 198. In order to entitle a party to prove that words wdiich 
 are in common use have a peculiar meaning by usage of trade or 
 the like in a certain contract, he must aver that fact on record (?<) ; 
 and the proof must be sufficiently clear and strong to overcome the 
 presumption that the words are used in their ordinary accepta- 
 tion (x). 
 
 § 199. The proof referred to is only competent in order to ex- 
 plain the technical language of the wTiting in question, not to show 
 what is its proper construction and efi'ect. Accordingly, where a 
 party bound himself " to guarantee an agent for four per cent, for 
 commission and guarantee," the Court construed the writing to 
 mean a guarantee for payment of the price for which goods sent to 
 the ao-ent should be sold, and held that the evidence of mercantile 
 men was inadmissible to |)rove that in practice the words compre- 
 
 («) Arneil v. Robertson, 1841, 3 D., 1150.— See also Hyslop v. Nairne, 1825, 4 S., 84. 
 
 {t) Shore v. Wilsons (Lady Hewley's trust), 1842, 9 Clark and Fin., 355. See also 
 Att.-Gen. v. Drummoud, 1841, 1 Dru. and War., 353. (m) Milne v. Samson, 
 
 1843, 6 D., 355— Guthrie v. Cochrane, 1846, 19 Sc. Jur., 69. See also Mackenzie v. 
 Dunlop, Wilson, &, Co., 1853, 16 U., 129. (x) 1 Bell's Cora., 433— Guthrie o. 
 
 Cochrane, supra. » 
 
 from their popular acceptation. This can only be carried out by means of parole evi- 
 dence ; Myers v. Sari, 1861, 30 L. J., Q. B., 8, per Cockburn, C. J., p. 12. 
 
 A mercantile iisage can be proved only by a multiplication of particular usages, and 
 therefore it is competent, with a view to establish mercantile usage, to prove what a per- 
 son dealing in the. kind of trade in question understood to be meant by the technical 
 term ; Mackenzie r. Dunlop, sujira. In that case the Lord Justice-Clerk observed, " There 
 can be no do\ilit tliat we have never in Scotland gone so far as they have done in Eng 
 land, in admitting evidence of understanding or usage in order to construe thereby a 
 written document;" Mackenzie v. Dunlop, 1853, 16 D., 12:>. 139. But thp judgment 
 pronounced in that case was reversed on appeal.
 
 152 ADMISSIBILITY OF PAROLE TO EXPLAIN WRITINGS. § 199- 
 
 liended an aiWitlonal guarantee for the agent's faithful conduct (?/). 
 In this case, Lord Chancellor Brougham observed that the bar 
 " must be well aware that in mercantile cases — not in other cases 
 — the learned judges have regretted they have gone so far as put- 
 ting a letter into the hands of a witness, and saying what does it 
 mean"(2).ii 
 
 §200. Under {he fourth and ffth rules thus noticed, the ex- 
 trinsic evidence is admitted in order to ascertain what the granter 
 of the deed meant by the words which he used ; and not to attri- 
 bute to these words any unexpressed meaning which he might be 
 supposed to have contemplated. This principle was involved in the 
 case of Lady Ilcwley's trust («) already noticed ; where the major- 
 ity of the judges seem to have considered that the extrinsic evidence 
 Avas admissible to show the meaning Avhich was attributed to the 
 words in question by the religious body to which the donor adhered; 
 but that general evidence of tlie opinions of the donor could not be 
 received in order to show in what sense she meant the words to be 
 understood (b). Baron Parke observed in this case, " when the ap- 
 propriate meaning of the words occurring in the deed has been 
 ascertained by competent evidence, then the deed is to be read as 
 if tlie equivalent expressions were substituted ; and no further evi- 
 
 {y) Culder v. Aitcliison, 1831, 9 S., 777 ; affd. 5 W. S., 410. Sec svjjra, § 193, (c). 
 
 {z) See also Milne v. Samson, svpra, (w) ; and compare Arneil v. Robertson, Hislop 
 V. Nairn, supra, g 197, and Schuurmans v. Stephen, 1832, 10 S., 839, 11 S., 779. On 
 this subject generally, see chapter iii. of this title, infra, § 230, et seq. 
 
 (a) Supra, g 197. {b) Mr Greenleaf (vol. i, p. 386, note) observes that "the 
 
 precise question, whether the religious opinions of the founder of a charity can be re- 
 ceived as legal exponents of his intention or belief, can liardly be considered as defini- 
 tively settled " by this case. 
 
 11 This has been held incompetent ; Kirkland v. Nisbet, 1859, 3 Macqueen, 766. 
 
 The rule appears to be, that proof of mercantile practice will be admitted to explain 
 but never to contradict a contract ; Muncey v. Dennis, 1856, 1 H. and N., 216 — Dale v. 
 Humfrey, 1858, Ellis and Ellis, 1004. Thus, where a party who chartered to China a 
 vessel, wliich was consigned to his agent there, pleaded that, in respect of a custom to 
 that effect in China, the agent in China was entitled to procure charters for the home- 
 ward voyage, proof was rejected of the custom, as not within the contract ; Phillipps, 
 1 Hurl, and Norm., 21. On the other hand, where a brok(n-'s note showed that he was 
 not principal in the transaction, but did not disclose the principal, the other party to 
 the transaction was allowed to support an action against him as principal, by proof of a 
 rule in the business, that, where the principal was not disclosed, the broker should be 
 liable as principal ; Dale v. Humfrey, 1858, supra. 
 
 A custom must be reasonable and not unrighteous or unfair ; Paxtun v. Courtnay, 
 1860, 2 Fost. and F., nisi prius, 131 — Bottomley v. Forbes, 5 Bingham N. C., 121.
 
 § 20'2. ADMISSIBILITY OK PAl^OLK TO KXI'LAIN WHITINGS. 153 
 
 dence of the peculiar sect ur religious opinions, or any otlier cir- 
 cumstance attending the parties to the deed, is admissible to explain 
 or control tlioir meaning." " It matters not that the opinions of 
 the testator would make such a disposition (as that wliich the words 
 indicate) unlikely ; in such a case quod vohiit non dixit." In an- 
 other of the English decisions (o) noticed above, the Court would 
 not admit evidence, that when the will was read over the testator 
 stated that by the word " mod'." lie meant his models. Again, in 
 an action between the parties to a WTitten contract of sale of a cer- 
 tain quantity of " ware potatoes," where the purchaser tendered 
 evidence to prove not only the meaning of the term, but that the 
 contract had been made for a particular kind of wares. Lord Den- 
 man's ruling that the latter part of the evidence w^as admissible, 
 and that the jury might give effect to the agreement on that foot- 
 ing, was held to be erroneous, upon the gTound that such proof 
 went to vary and limit the written contract {d). 
 
 § 201. It is not easy to reconcile with these authorities a case (e) 
 in wliich the word "privilege" occurring in a contract between the 
 master and owners of a vessel was allowed to be explained, not 
 merely b}' showing the general meaning of the word in the language 
 of trade, but also by proving that the parties had expressly attri- 
 buted a certain meaning to it when they entered into the contract. 
 Lord Chief-Justice Gibbs observed, " the conversation is admissible 
 evidence of mercantile understanding, if not farther. And if the 
 term had been used in different w^ays, the conversation is evidence 
 to show in which sense it was used on the present occasion." So in 
 an American case (founded on by Mr Greenleaf), where two book- 
 sellers had contracted for the sale of a certain work at " cost," pa- 
 role of conversations between them at the time of making the 
 agreement was received, in order to show what meaning they at- 
 tached to the term (/). Mr Taylor justly observes that little 
 weight should be attached to these decisions (r/). 
 
 § 202. Sixthly — Extrinsic proof is admissible in every case to 
 show the circumstances which surrounded the granter of the deed 
 when he subscribed it, as well as those which were antecedent or 
 coincident to its execution (li). The object of such a proof is to 
 
 (c) GoLlet V. Beechy, 1829, 3 Sim., 24, supra, g 195, (<). {d) Smith v. 
 
 Jeffryes, 1846, 15 Mc. and Wei., 561. (e) Birch v. Depoyster, 1816, 1 Starkie 
 
 R., 210. (/) Gray r. Harper, 1 Story's Rep., 574—1 Grcenl., 358, 385— See 
 
 also Selilen r. Williams, 9 AVatts (American). 0— Sweet v. Lee, 1841, 3 M. and Gr., 
 452, 460. (.7) Taylnr, 774. {h) Wif^Tnin. "il (iTopos. v)— 2 Philip*. 
 
 294. 5—1 Jarman, 363.
 
 154 AnMISSlBILlTY OF PAROLE TO EXPLAIN WRITINGS. § '202- 
 
 enable the judge to examine the deed as nearly as possible from 
 the point of view from which the granter saw it ; for the nearer he 
 can approach to that point, the more likely is he to construe the 
 deed as the granter would have done. This evidence, therefore, is 
 not admitted for the purpose of attributing to the deed a meaning 
 which its words do not convey, but of learning the appropriate 
 meaning of its words when used by a person in a certain situation. 
 Accordingly, when the deed has been elucidated by proof of the 
 surrounding and antecedent circumstances, it mnst be construed on 
 the footing that its words have the meaning which they bear when 
 so regarded; and, except in certain cases of ambiguity (i), there 
 can be no inquiry into the unexpressed intention of the granter, the 
 bias of feeling in his mind, or the probabilities as to his making the 
 provisions which the deed is found to contain. 
 
 § 203. This principle admits evidence of the knowledge of the 
 granter regarding the subject of the deed.^^ Thus, in an English 
 case, where a testator devised to his niece and her three daughters, 
 Mar}^, Elizabeth, and Ann; and at the date of the will the niece 
 had three daughters so named, but EUzaheth was illegitimate, the 
 other two being legitimate, it was held competent to prove that 
 the niece had had a legitimate daughter Elizabeth, wlio died some 
 years before the date of the will, and that neither lier death nor 
 the birth of the illegitimate daughter had been known to the tes- 
 tator {j). So if one left a bequest to a person named, and it ap- 
 peared that there were two persons of the name, proof that the 
 testator was only acquainted with one of them would be admit- 
 ted (k). Again, suppose a person resident in India bequeathed a 
 gold watch, and he had one in India in constant use, and another 
 which he had left in London twenty years before, proof of these 
 circumstances would free the bequest from the ambiguity raised by 
 the fact that the testator had two watches (J). In the same man- 
 ner, proof of the amount of interest which the granter of a deed 
 had may be admitted to clear up his bequest, e.g., "If I grant a 
 man an estate for life, without saying whether for his life or mine, 
 is not evidence admissible to shew what interest I had in the pre- 
 
 {«■) See g 213, et seq. {J) Doo d. Thomas v. Beynon, 1840, 4 Per. and Dav., 
 
 193 ; 12 Ad. and Ell., 431, 8. C. (k) See Wigram, 58. (l) Wigram, 59, 65. 
 
 12 A testator bequeathed his lands in a certain parish. He had lands in the parish, 
 and also other lands not in the parish, but which, at the date of the bequest, were re- 
 puted to be so ; it was held thnt thpso Intter lands jmssed : Anetee r. Nelms, 185f). 1 
 H. and N., 225.
 
 § 204. ADMISSIBILITY OF I'AHOLK 'iU KXIM-AIN WHITINGS. 155 
 
 mises ? For if 1 was tenant in the fee, lie will take the estate for 
 his own life, but if tenant in tail or for life only, he will take for 
 mine" (w). 
 
 § 204. Under this rule, also, conimunings between the parties 
 antecedently to the contract are admissible, not in order to modify 
 the words of the deed by a specific proof of any previous arrange- 
 ment, but in order to shew the position from which the parties 
 viewed the deed. For example, in a question regarding the rights 
 of a widow under her marriage-contract, a relative correspondence 
 which passed between her husband and her father before the mar- 
 riage was held admissible for the latter purpose, but not for the 
 former (n). The Lord Chancellor Cottenham observed, "There 
 were produced, and commented upon at your Lordship's bar, several 
 letters which passed before the execution of the contract. There 
 was also produced and commented upon, the will of the husband 
 made at a time considerably subsequent to the date of the contract. 
 I apprehend, according to the strict rules of evidence, those docu- 
 ments ought to be entirely rejected; rejected so far as they might 
 be supposed to be produced for the purpose of putting any con- 
 struction upon the instrument itself. The marriage-contract must 
 speak for itself; the rights of the parties must be ascertained from 
 the language of that marriage-contract, and not from anything 
 which may have passed before, and still less from anything which 
 may have passed afterwards. At the same time it is certainly 
 within the rules of evidence, and therefore may legitimately be 
 looked into to see what were the circumstances existing at the 
 time the marriage-contract took place. The marriage-contract 
 speaks of a certain pension. Now, what that pension was, and 
 what knowledge the parties had of that pension, are subjects as to 
 which these documents may be looked at for the purpose of ex- 
 plaining the intention iu the marriage-contract itself; every Court 
 of justice having a right to have all the information which was in 
 the possession of the parties contracting, to place itself in the 
 situation of the parties, for the purpose of putting a construction 
 upon the instrument to which they have liccome parties." On the 
 same principle, in an action of damages by a tenant for not being 
 put in possession of the whole subject claimed under missives of 
 
 (m) Per .Tustice Baylcy iu Smith v. L. Jersey, 1821, 2 Brod. and Bing.. 551. 
 
 (n) Forlong v. Taylor's Exrs., 1838, 3 Sh. and M'L., 177, 210— See also per Lord 
 Jeffrey in Davidson v. Mag. of Anstnither, 1845, 7 D., 351. See the rule on this head 
 stated by L. Ch. Sugdpn. in Att.-Gen. r. Drumniond, 1842, 1 Dm. and War., 3r>7.
 
 156 ADMISSIBILITY OF PAltOLE TO EXPLAIN WRITINGS. § 204- 
 
 lease, the commimings wliicli passed between tlie parties before 
 they executed the missives were allowed to be proved, as the res 
 gestae out of which the contract arose (o). x\nd where parties 
 agreed by a bill of lading for a sale of certain stores, proof of a pre- 
 vious verbal agreement between them was admitted, in order to 
 shew the circumstances from which the written contract origin- 
 ated (p). So proof of the res gestae at granting a bill of exchange 
 was admitted in a question whether it was meant to be in full of a 
 disputed claim, or only in payment of interest {q)P 
 
 § 205. Seventhly — In questions as to the subject of a deed, or 
 the person favoured by it, extrinsic evidence is admissible for the 
 purpose of identification, provided the description be sufficient to 
 point out some individual person or thing (r). In such cases it 
 may appear, (1) Tliat the description is appropriate and complete 
 as to one object, and not appropriate to any other object; or (2), 
 That the description is Avholly inappropriate to the person or thing 
 which it is supposed to designate ; or (3) That it is partly a right 
 and partly a wrong description ; or (4) That it describes not only 
 one, but any one of several objects. 
 
 § 206. (1) There can obviously be no difficulty when the de- 
 
 (o) M'Leod V. M'Leod, 1824, 3 Miir., 433. In Drummond v. Koss, 1824, 3 S., 315, 
 in a question -whether a deed hearing to he a discharge of an adjudication was not 
 merely a suspension of its operation, the Court looked at correspondence hetween the 
 parties both before and after the deed, because without it the agreement was unintel- 
 ligible, {p ) Koid cSt Co. V. Sinclair, 1827, 4 Mur., 379. See also Stothart v. 
 Johnstone's Tr., 1821, 2 Mur., 544, 5. {q) Flockhart v. Lawson, 1831, 9 S., 873, 
 10 S., 472, S. C. See also Wilson v. Glasgow and S. Western Ry. Co., 1851, 14 D., 1. 
 
 (r) Lord Walpolo v. Lord Cholmondeley, 1797, 7 Durf. and E., 138—2 Evans' 
 Pothier, 210. 
 
 13 In an action founded on failure to fulfil a contract for horse haulage, the pursuer 
 proposed an issue, — whether the defender agreed to perform the horse haulage work 
 specified in a schedule annexed. There was a written contract, but it made no men- 
 tion of the number of horses to be employed. The number was, however, stated in the 
 schedule ; and the pursuer averred that a list in terms of the schedule had been made 
 out prior to the contract, and that the contract had been entered into with reference to 
 it. He jmjposed to prove previous communings of the parties, and urged that his object 
 was not to put a meaning on the contract, but to shew the circumstances when the con- 
 tract was made. But the Court, holding it incompetent to connect the list with the 
 contract by parole, and incompetent to prove previous communings, disallowed the issue. 
 " The principle is well established, that when communings are followed by a written 
 contract, it is not competent to allow any part of the communing, or even of letters that 
 may have passed between the parties, to be held as part of the written contract, or to 
 refer to them so as to enlarge or control the terms of the written contract ; Walker v. 
 Caledonian Railway Co., 1858. 20 1)., 1102. per L. .T.-C. Hnpo, 1105.
 
 § '208. ADMISSIBILITY OF PAROLE T(J KXl'LAIN WRITINGS. 157 
 
 scription of the deed is accurate and unambiguous. If it correctly 
 defines one subject, extrinsic evidence will not be admitted to ex- 
 tend or vary its application (s). For example, in an English case 
 where a person devised all his freehold estates in the county of 
 Limerick and in the city of Limerick, and he liad no real estate in 
 Limerick county, and only a small estate in the city, evidence that 
 he intended to devise his real estates in Clare county was reject- 
 ed (t) ; and where a party devised his "estate of Ashton," evidence 
 was held inadmissible to shew that he used to designate by tliat 
 term not only his estate known by that name, but also his lands in 
 certain adjoining parishes (ii). On the other hand, if a large estate 
 has for some time borne a name which originally defined only a 
 part of it, there arises an ambiguity as to whether the whole or the 
 part was intended, and extrinsic evidence on the point will be ad- 
 mitted (x)}*^ 
 
 § 207. (2) Where the description is inapplicable, tlie obliga- 
 tion or bequest will be held void for uncertainty (i/). 
 
 § 208. (3) Where the description is partly applicable, and 
 partly inapplicable, to the person or thing said to have been intend- 
 ed, the rule is, that if the accurate description is sufficient for the 
 purpose of identijEication, the erroneous addition would be disregard- 
 ed ; because falsa demonstratio non nocet, si de corpore constat (z) ; 
 and extrinsic evidence will be admitted to clear up any doubt on 
 the point. This principle is seen in a case where a legacy left by 
 a trust-deed to "Janet Keillor or Williamson, confectioner in Dun- 
 dee," was claimed by Agnes Keillor, widow of Wedderspoon, who 
 had been a confectioner in Dundee. As she had a sister, Janet 
 
 («) Wigram, 51 (proposition v). {t) Miller v. Travers, 1832, 8 Bing., 244. 
 
 («) Doe d. Oxenden v. Chicliister, 181G, 4 Dow, 65. In a previous case the English 
 judges were divided on a similar point; AVhitohead v. May, 1801, 2 Bos. and Pull., 593. 
 
 (x) Doe d. Beach v. E. Jersey, 1818, 1 B. and Aid., 550; 3 B. and Cress., 870. See 
 also per L. Justice-Clerk Hope in Forbes v. Kirk, 1842, 4 D., 1177. 
 
 {y) See § 211, 212. (z) See Maclaine v. Maclaine. 1852, 14 D., 870— 
 
 L. Advocate v. L. Forbes, 1750, 1 Cr. and St., 482, reversing — Guthrie v. Monro, 1833, 
 11 S., 4G5. 
 
 1* A grant conveyed certain lands in lease, extending to about 200 acres, " and the 
 village of Scartnaglowrane," and part of Whitechurch and Tincurry, containing by es- 
 timation 148 acres. Parolo evidence of use, &c., was admitted to shew that 1700 acres 
 of mountain land had always been enjoyed as part of the " village of Scartnaglowrane," 
 and was comprised in the term village, and jia-ssed by the grant. " viUago " being held 
 to be in law a term capable of such a construction : Waterpark v. Fennel. 1859. 7 Clark. 
 House of Lords, 650.
 
 158 ADMISSIBILITY OF PAROLE TO EXPLAIN WRITINGS. § 208- 
 
 Keiller, married to a seamau named Wliitton, and residing in 
 Brouglily Ferry near Dundee, the trustees raised a multiplepoinding 
 for determining who had right to the legacy. Janet Keiller did 
 not compete ; and Agnes Keiller or Wedderspoon founded her claim 
 on the circumstance that in five previous wills with eight codicils 
 (which were all holograph) found in the truster's repositories she 
 was named "Keiller," and designed " confectioner in Dundee;" be- 
 ing described in one as "Janet Keiller, confectioner in Dundee;" in 
 another as "Keiller, spouse to Wedderspoon, confectioner in Dun- 
 dee;" while, in a third codicil, a legacy was left to "Helen Smith, 
 whom Mrs Wedderspoon takes the cliarge of," and it was proved 
 that the claimant had been in the habit of corresponding with the 
 truster and receiving money from him for behoof of Helen Smith. 
 The claimant being thus identified as the person pointed at by all 
 these ^-ills and codicils, she maintained that the clerk who transcribed 
 the trust-deed had erroneously transcribed "Williamson" instead of 
 "Wedderspoon" from the holograph wills; and the Court adopted 
 that view, being "clearly of opinion that no other person could be 
 meant except the claimant" (a). In a subsequent case arising out 
 of the same succession, a legacy to "William Keiller, confectioner 
 in Dundee," was claimed by William Keiller, confectioner in Mon- 
 trose, and by James Keiller, confectioner in Dundee ; but William 
 having retired from the competition, the Court preferred James, 
 being satisfied that he was the party whom the testator meant 
 to favour. It appeared that James was a relation of the truster, 
 and had been on habits of intimacy with him ; that he was the only 
 confectioner of the name of Keiller in Dundee ; and that William 
 Keiller had never been a confectioner there, and had not been a 
 confectioner at all till within a few months before the truster's 
 death (h). It may be questioned whether the descriptions in these 
 cases were not so erroneous, that the Court in effect made the be- 
 quest which the truster had intended, but not expressed (c). 
 
 § 209. Again, where a testator in England devised to his wdfe 
 stock in the 4 per cent, annuities of the Bank of England, and it 
 was shewn that at the date of the will he had no such stock, but 
 
 {a) Keiller v. Thomson's Tr., 1824, 3 S., 396. (h) Keiller v. Thomson's 
 
 Tr., 1826, 4 S., 724. (c) In Andrews v. Dobson, 1788, 1 Cox, 425, where a 
 
 legacy had been left to James, the son of Thomas Andrews in Eastcheap, printer, and 
 there was no Thomas Andrews in the place, but a James Andrews, printer, who had by 
 his first wife a son Thomas related to the testator, and by his second wife a son James 
 not so related, the Court would not admit evidence to shew that the testator had in- 
 tended Thomas the son of James, instead of James the son of Thomas.
 
 §211. ADMISSlini-ITY OF PAROl.K TO EXri,AlN WHITINGS. 159 
 
 that lie liad I'dnucily possessed some stock of that kind, whlrh he 
 had sold and invested in 3 per cent, long annuities, the Court held 
 that tlie bequest was substantially one of stock, which was not de- 
 feated by the misdescription, and therefore they found that the 
 long annuities wore carried by it (d). In another English case, 
 where the subject of an agreement was lands "in the occupation of 
 widow Kellet and her son," and no lands were occupied by her at 
 the date of the will, the precise meaning of the words was con- 
 trolled by extrinsic evidence, showing that there were lands which 
 had been possessed by her before her death two years previously ; 
 and these lands were held to be carried by the will (e). And where 
 a lease described the subject as "all that part of Blenheim park, 
 situate in the county of Oxford, now in the possession of S.," \\'ithin 
 certain boundaries, ''with all the houses thereto belonging, which 
 are in the occupation of S.," it was hcM that a luiuse lying witliin 
 the l)ounds, but not in the occupation of S., would pass (/). And 
 where one devised "Trogue's farm, now in the occupation of C," it 
 was held that the whole farm passed, although it was not all in C.'s 
 occupation (</). 
 
 § 210. It will be observed that none of these English cases 
 raised an ambiguity in the proper sense of the term. They were 
 mere c^uestions of identification, in which extrinsic proof was re- 
 quired, in order to discover whether the description in the deed 
 could, notwithstanding its erroneous qualities, be applied to the 
 person or subject in issue. If the descriptions in these cases had 
 been applicable alike to several persons, evidence of the granter's 
 intention would have been admitted, as in questions of latent am- 
 biguity (h). 
 
 § 211. Eighthj — When the words of a deed, illustrated by evi- 
 dence of the surrounding circumstances and of the meaning of any 
 technical words occurring in it, are insufficient to determine the 
 granter's meaning, extrinsic evidence will not be admitted to prove 
 what he intended, and the deed will be void for uncertainty, — 
 perinde est ac si scriptum non esset (/). This rule follows from the 
 principle that the duty of the Court is to expound what the deed 
 
 (d) Selwood V. Mililmay, 1796, 3 Vesey, 306. [e) Beaumont v. Field, 1818, 
 2 Chitty's R., 275. (/) Doe d. Smith v. Galloway, 1833. 5 B. and Ad., 43. 
 
 (ff) Goodtitlo V. Southern, 1813, 1 Ma. and Sel., 299. (A) See § 215. 
 
 (e) 1 Bell's Com., 434— Bell's Pr., § 524— Wigram, 83 (proposition vi)— 1 Jarman. 
 349_Jones v. Henry, 1815, 4 Dow, 145— per L. Abingcr in Doe v. Hiscocks, 1839, 6 
 Me. nnd Wei., 3G9— per Parke in Doe d. Gord v. Needs, 1836, 2 Me. and Wei.. 139— 
 Richardson v. Watson. 1833, 4 B. and Ad., 787.
 
 160 ADMISSIBILITY OF PAKOl.E TO EXPLAIN WKITINGS. § 211- 
 
 declares, and not to import into it the unexpressed intentions of 
 the parties (A-).^^ 
 
 § 212. Accordingly, parole evidence is inadmissible for the 
 pm-pose of filling in a name left blank (l), or reconciling conflicting 
 clauses in a will (m), or of ascertaining who was meant by a devise 
 which on the face of the will is indeterminate, e.g., "to one of the 
 sons of A," who has several sons (n). 
 
 § 213. Ninthly — Notwithstanding the rules stated under the 
 third and eighth propositions, extrinsic evidence of the granter's in- 
 tention is admissible in some cases in order to clear up an ambiguous 
 description in a deed. This exceptional rule does not come into 
 operation unless the ambiguity remains after the deed has been il- 
 lustrated by proof of the circumstances which surround the grant- 
 er (o), and of the meaning of any technical words which the deed 
 contains (p ). It seems only to apply where the object of the 
 proof is to discover who or what the grantor of the deed meant by 
 a description which applies to more than one person or thing. 
 
 § 214. On this point it is necessary to observe a distinction 
 which has been borrowed from the law of England between patent 
 ambigTiities, or those appearing on the face of the deed, and latent 
 ambiguities, or those which arise Avhere the words of the deed in 
 
 (k) See supra, § 179. [l) Baylis v. Atty.-General, 1741, 2 Atk., 239— Castle- 
 
 don V. Turner, 1745, 3 Atk., 257— Hunt v. Hort, 1791, 3 Bro. C. C, 2,11— contra, Pol- 
 lock V. Gilmour, 1777, M., 8098, and M., Appx. " Legacy," No. 1, questioned in Blair 
 V. Blair, 1849, 12 D., 112, per L. Cockburn. See § 160. (m) Ulrick v. Litch- 
 
 field 1742, 2 Atk., 372. So parole is inadmissible for proving to which of two ante- 
 cedents a certain relative applies ; I;. Walpole v. L. Cholmondeley, 1797, 7 Durf. and E., 
 138— Castledon v. Turner, supra. (n) Strode v. Russell, 1708, 2 Vern., 625. 
 
 See also Goodinge v. Goodinge, 1749, 1 Ves. Sen., 230— Edge v. Salisbury, 1749, Amb., 
 70— Green v. Howard, 1779, 1 Bro. C. C, 31. (o) Siqm, § 202. 
 
 {p) Supra, II 194,196. 
 
 15 A legacy was left to the Scottish Missionary Society of the Established Church of 
 Scotland. It was competed for by the Scottish Missionary Society, which was uncon- 
 nected with any denomination, and by the Home Mission Committee of the Church of 
 Scotland, the objects of the latter society not being strictly missionary. The majority 
 of the Court held the legacy should go to the Scottish Missionary Society, and the words 
 " of the Established Church of Scotland " only /aZsa Jmo«s<m-;2o; Scottish Missionary 
 Society v. Home Mission Committee, 1858, 20 D., 634. Parole evidence was admitted 
 to explain a devise to William Marshall, " my second cousin," the testator having no 
 second cousin of that name, but two cousins once removed, whose names were William 
 Marshall and William J. R. B. Marshall ; Bennet v. Marshall, 1856, 2 Kay and J., 740. 
 See as to the evidence competent for the purpose of identifying entailed lands, Earl 
 of Leven and Melville v. Cartwright, 1861, 23 D., 1038. and 33 J.. 521.
 
 § 215. ADMISSIBrLITY OF PAROLE TO EXPLAIN' WRITINGS. IGl 
 
 tlieiiiselves are neitlier amljiguou.s nor obscure, hut arc sJiewn to bo 
 equally applicable to more than one person or thing (r). 
 
 § 215. On the one hand, a latent ambiguity may be solved by 
 proving which of several ol)jects the gvanter intended by a descrip- 
 tion which applies indifferently to them, all (.s). Thus where an 
 instrument of sasine described the bailie as "Brown in Duljbs," and 
 it was averred that there were more persons than one answering 
 the description, extrinsic proof was held admissil)le for pointing out 
 which of them had been intended (t). And in an English case 
 where lands had been left to John Clucr of Calcot, and there were 
 two persons, father and son, who corresponded to that description, 
 parole of the testator's intention to bequeath to the son was admit- 
 ted (u). So where a devise was to "John Allen, the grandson of 
 my brother Thomas, and I hereby charge the same with the pay- 
 ment of £100, to each and every the brothers and sisters of the 
 said John Allen, to whom I give the same accordingly;" and it 
 appeared that at the date of the will, Thomas, the testator's brother, 
 had two gi'andsons named John Allen, one of whom had several 
 brothers and sisters, while the other had one brother and one sis- 
 ter; the Court received proof of the testator's declarations, although 
 uttered after the date of the will, to shew which grandchild he had 
 intended (x). On the same principle where the lands of Craig are 
 sold, and the seller has North and South Craigs, parole is admis- 
 sible to shew which he intended (y). 
 
 In the cases thus noticed, the object of the extrinsic proof was 
 not merely to shew circumstances in relation to the granter, from 
 which the Court might by construction ascertain the meaning of 
 the deed ; but, on the footing that the deed when read l)y the light 
 of surrounding circumstances was still ambiguous, proof of the 
 gi-antcr's intention was admitted, in order that the Court might, as 
 in a question of fact, determine which oliject ho meant to point out 
 by the latently ambigiious description. Since, therefore, the ex- 
 
 (r) Th^s distinction was introduced into English law by L. Bacon (Maxims Reg., 23); 
 and is fully discu-ssed in "Wigram on Wills, 101 (proposition vii) — 3 Starkie Ev., 755, 
 768, 1269—2 Phil. Ev., 311—2 Taylor Ev., 781-Sugden on Vendor and Purch., 174. ' 
 
 (s) Bell's Pr., § 524 — per Lord Ch. Brougham in Logans v. Wright, 1831, 5 "\V. S., 
 246— and in Morton v. Hunters & Co., 1830. 4 W. S., 386— Wigram, supra— Starkie, 
 supra — 2 Phil., 315 — Taylor, supra — Sugden on Vendor and Purch., 175. 
 
 (C) Jlorton I'. Hunters, supra. (w") Jones v. Newman, 1750, 1 W. Black.. CO ; 
 
 exi)lained in Doe v. Hiscocks, 1839, 5 Mee. and \Vcl., 370. (r) Doe d. Allen v. 
 
 Allen, 1840, 12 Ad. and El., 541 ; 4 Per. and Dav.. 220, S. C. Sec a similar case, Doe 
 d. Gord V. Needs, 1836, 2 Me. and Wei., 129. (y) Macfarlane v. Watt, 1828, 
 
 6 S., 556, per L. Pitmilly— Mecrs i-. Ansell, 1771. 3 Wils., 275—3 Starkie, 769. 
 VOL. I. L
 
 162 ADMISSIBILITY OF PAROLE TO EXPLAIN WRITINGS. § 215- 
 
 trinsic evidence is admissible to prove intention as an independent 
 fact, it may embrace both circumstances which indicate inten- 
 tion (z), and dechirations of intention made at the time of granting 
 the deed («). Whether declarations uttered before or after its exe- 
 cution will be received, seems to depend on circumstances, as the 
 occasions on which they were made, their dates compared with the 
 date of the deed ; the question being whether the particular decla- 
 ration tendered is relevant to infer intention as at the date of the 
 deed {h).* 
 
 § 216, On the other hand it has been laid down repeatedly, and 
 with authority, that evidence of the granter's intention is inadmis- 
 sible for the purpose of clearing up a jjaient ambiguity. In a Scotch 
 case already cited, Lord Chancellor Brougham observed, "you are 
 not to go out of the deed, where there is no latent ambiguity but 
 only a patent ambiguity, in order by any extrinsic evidence to clear 
 up a doubt that arises before your eyes upon the face of it. If it is 
 a latent ambiguity, if evidence dehors the deed raises that doubt, 
 3"ou may have recourse to evidence dehors the deed to settle it. 
 That rule is as old as the time of Lord Bacon, when he held the 
 Great Seal, and that rule holds in all the Courts here and in Scot- 
 land" (c). The same learned judge repeated this doctrine in an- 
 other case which had been appealed from the Court of Session {d). 
 Professor Bell thus states the rule, — "There are two kinds of ambi- 
 
 ■ (z) Selwood V. Mildmay, 1797, 3 Yes. Jun., 306— Doe d. Chevalier v. Huthwaite, 
 1820, 3 B. and Aid., 632— Keiller v. Thomson's Tr., 1826, 4 S., 724, supra, § 208— 
 Wigram, p. 162. (a) Selwood v. Mildmay, supra — Hampshire v. Pierce, 2 Ves. 
 
 Sen., 216. (i) Both previous and subsequent declarations have been held ad- 
 
 missible ; Beaumont v. Fell, 1823, 2 P. Will., 140— Doe d. Hiscocks v. Hiscocks, 1839, 
 5 Me. and Wei., 363, per Abinger— Price v. Page, 1799, 4 Ves., 680— Whitaker v. 
 Tatham, 1831, 7 Bing., 628 — Doe d. Allen v. Allen, supra {x). In Trimmer v. Bayne, 
 1802, 7 Vesey, 517, Lord Chancellor Eldon observed, " I fear there is no possibility of 
 saying parole declarations, both previous and subsequent, are not admissible." " But 
 there is a very great difference upon the point whetlier they are all equally weighty 
 and efficacious. A declaration at the time of making the will is of more consequence 
 than one afterwards ; and a declaration after the will as to what he had done, is en- 
 titled to more credit than one before the will as to what he intended to do ; for that in- 
 tention may very well be altered, but he knows what he has done." See also Wigram, 
 162— See contra, Thomas v. Thomas, 1796, 6 Durf. and E., 671. 
 
 * In thus treating of the mode of solving latent ambiguities, the views adopted by 
 Vice-Chancellor Wigram in his admirable Treatise on the Interpretation of Wills 
 (pp. 101, et seq.), have been in a great measure followed, as being most consistent both 
 with principle and with the English authorities, to which a copious reference has been 
 indispensable. See § 229. 
 
 (c) Logans v. Wright, supra, 1831. 5 W. S., 246. {d) Morton v. Hunters & 
 
 Co., tupra, 1880, 4 W. S., 386.
 
 § 211. ADMISSIHIJ.ITY OF PARCJLE TO EXPLAIN WRITINGS. UVd 
 
 guity, which are to be dealt with difTerently, 1st, An ambiguity 
 patent or apparent on the i'aee ot" the contract, which, unless it can 
 be solved by the context and nature of the contract, may be fatal; 
 2d, A latent ambiguity, arising not from the words, but in their ap- 
 plication; and in this case extraneous evidence is admissible to 
 clear up the difficulty" (c). 
 
 § 217. The same rule holds in England. It is thus stated by 
 Chief-Justice Gibbs : "The Courts of law have been jealous of the 
 admission of extrinsic evidence to explain the intention of a testa- 
 tor ; and I know only of one case in which it is permitted, that is, 
 where an ambiguity is introduced by extrinsic circumstances. Then, 
 from the necessity of the case, extrinsic evidence is admitted to ex- 
 plain the ambiguity (/)." The doctrine is more fully expounded 
 by Lord Abingcr in a leading case in the Exchequer. After notic- 
 ing that the circumstances surrounding the testator may be proved 
 in order to illustrate the meaning of the will, his Lordship ob- 
 served — "There is another mode of obtaining the intention of the 
 testator, which is by evidence of his declarations, of the instruc- 
 tions given for his will, and other circumstances of the like nature, 
 which are not adduced for explaining the words or meaning of the 
 will, but either to supply some deficiency, or remove some obscurity, 
 or to give some effect to expressions that are unmeaning or ambi- 
 guous. Now^ there is hut one case in which it appears to us that 
 this sort of evidence of intention can properly be admitted; and 
 that is, where the meaning of the testator's words is neither ambi- 
 guous nor obscure, and where the devise is on the face of it perfect 
 and intelligible, but from some of the circumstances admitted in 
 proof, an ambiguity arises as to which of the two or more things, 
 or which of the t^vo or more persons (each answering the words in 
 the will), the testator intended to express. Thus, if a testator de- 
 vise his manor of S to A B, and has two manors of North S and 
 South S, it being clear he means to devise one only, whereas both 
 are equally denoted b}" the words he has used, in that case there is 
 what Lord Bacon calls an 'equivocation,' that is, the words equally 
 apply to either manor, and evidence of previous intention may be re- 
 ceived to solve this latent ambiguity; for the intention shows what 
 he meant to do; and when you know that, you immediately per- 
 ceive that he has done it by the general w^ords he has used, which, 
 in their ordinary sense, may properly bear that construction. It 
 appears to us, that in all other cases parole evidence of what was 
 the testator's intention, ought to be excluded upon this plain ground, 
 
 (f) Bell's Pr., § 524. (/) Oxenden v. Chichister, 1816. 4 Dow. 93. 
 
 L'2
 
 104 ADMISSIBILITY OF PAllOhE TO KXTLAIN WKITINGS. § 217- 
 
 tluit Lis will ought to he made in writing, and if liis intention can- 
 not he made to appear hy the writing explained hy circumstances, 
 there is no ^nl^"' (g). 
 
 The English text writers also agree in holding that while latent 
 ambiguities may, patent ambiguities may not, be cleared up by 
 proof of the granter s intention (/?). 
 
 § 218. From the dicta of the Lord Chancellor sitting in the 
 Scottish Court of last resort, the opinion of a leading institutional 
 writer (Professor Bell), and the English authorities above cited, the 
 rule ^^-ill probably be held as fixed, that proof of intention is inad- 
 missible in order to explain a patent ambiguity. There is, however, 
 not a little looseness and some conflict in the English authorities 
 on the point (0 ; while no satisfactory reason has yet been given 
 for the distinction in this respect between patent and latent ambi- 
 guities. It is usually defended on the ground that as a latent am- 
 biguity is raised by evidence dehors the deed, it may be laid or 
 removed by the same means (j). Vice-Chancellor "Wigram (k) 
 has exposed the fallacy of this explanation, which would be per- 
 fectly logical if the extrinsic proof admitted to remove the ambi- 
 guity were of the same character as that by which it had been 
 raised. But the ambiguity arises in the attempt to identify the 
 person or thing described in the deed, wdthout proof of the granter s 
 intention as an independent fact; whereas the rule in question 
 allows the ambiguity so raised to be solved by proof, direct or cir- 
 cumstantial, of intention. Mr Wigram (I) accordingly sums up 
 his remarks on this point by observing that the decisions admitting 
 evidence of intention "must be considered to a great extent as ar- 
 bitrary and not to be explained upon any determinate principle. 
 They appear to be decisions in wdiich a general principle has been 
 sacrificed to meet the hardship of particular cases." 
 
 § 219. It will l»c kept in view, however, that the exclusion of 
 extrinsic evidence in cases of patent ambiguity is limited to proof 
 of the grantor's intention as a fact independent of the deed (m). 
 Evidence of any facts relating to the subject conveyed (n), of any 
 material circumstances which surrounded the granter (o), and of 
 the meaning of peculiar phrases occurring in the deed (p), is 
 
 iff) Doe V. Hiscocks, 1839, 5 Mee. and W' el., 368, 369. (/*) 8 Starkie, 755, 
 
 768— Taylor, 785— Sugden on Vend, and Purch., 175— Wigram, 184—2 Evans' Potliier, 
 208. (i) See ^Vigram, 130. (/) Morton v. Hunters, ."iqtra, 4 W. S., 387. 
 
 (yfc) Wigram, 121. {l) Wigram, p. 130. (m) See W^igram, 177. 
 
 (n) Supra, § 205, et seq. (o) Supra, I 202, et seq. (p) Supra, § 194, et seq.
 
 § 211). ADMISSIBILITY OF PAUULK TU KXI'LAIN WRITINGS. i*!.') 
 
 equally admissible wliutlier tliu uiabiguity is patent or latent. The 
 differenee between such evidence and evidence of intention is well 
 illustrated by the mode in whicli the Court explicate the term 
 "heirs." That is a ilexible, or patently ambiguous, term; the mean- 
 ing of whieh varies wath the nature of the subject conveyed, the 
 antecedent titles of that subject, and even of other subjects to 
 which it may be accessory (</). Accordingly, in order to ascertain 
 the meaning of the term in any instance, these extrinsic circum- 
 stances are not only admissible, but most material. For example, 
 the primary meaning of the word is the heir ah intestato in heri- 
 tage (r). Yet in conveyances of a/eudum novum it means heir of 
 conquest (s);^® while in personal bonds and deeds which transfer 
 personal estate, it points to the party's executors (t). If there has 
 been a previous destination of an estate, limiting the succession, 
 the general term heirs, or heirs whatsoever, will in all the subse- 
 quent destinations of the subject be understood as describing, not 
 the heirs at law, but the heirs of the former investiture, unless 
 strong circumstances raise the inference that the original destina- 
 tion was meant to be altered (u)}"^ Again, where one who has 
 taken a right to himself and to heirs of a certain character, acquires 
 ailjudieatiuns, reversions, or any collateral securities affecting tlie 
 subject, and takes the conveyances thereto to himself and his heirs, 
 that term will be construed to mean the heirs to whom the lands 
 were provided ; as it is not to be presumed that a party would make 
 one class of his heirs the debtors, and another class the creditors on 
 the same subject (y). For a similar reason, where a proprietor in a 
 feudum antiquum purchases the teinds of his lands under a disposi- 
 
 {q) Ersk., 3, 8, 47. (r) Ersk., supra. (s) Ersk., supra. 
 
 (t) Ersk., s(//?ra— Pearson v. Corrie, 1824, 4 S., 119— Blair c. Blair, 1849, 12 D., 97. 
 
 {u) Ersk., si/pra— Hay v. Crawford, 1698, M., 14,899— Skene v. Forbes, 1725, M., 
 11,354— M. Clydesdale v. E. Dundonald, 1727, M., 14,930— Kaukine v. Kankine, 1736. 
 Elch. "Mutual contraet," No. 4— Patons v. Hamilton, 1797, M., 11,376 — Wilson v. 
 Wilson, 1811, Hume D., 534. ((;) Ersk., w^ra— "Waucbopc v. D. Koxburghe, 
 
 14th December 1815, F. C. ; affd. 1 W. S., 41. 
 
 'c A destination in favour of " heirs whatsoever " of a party, operates, if he takes no 
 right himself, in favour of his heir of line, not his heir in conquest. Where an estate, 
 conquest in the granter, was destined to the grandchildren of the granter, whom failing, 
 to the grauter's " heirs whatsoever," and the grandchildren took the estate and died 
 in childhood, it was held that tlie grantor's heir of line was entitled to succeed ; had 
 the grandchildren not taken the estate, the granter's heir in conquest would have suc- 
 ceeded; had the destination been to the grandchildren and their " heirs whatsoever, " 
 their heirs in conquest would have taken ; Robison v. Robison, 1859, I'l 1 >., 905. 
 
 '■ Jlenzies on ('niivoy,in'ing, 2d edition, 669; 3d edition, 099.
 
 166 ADMISSIBILITY OF PAROLE TO EXPLAIN WRPPINGS. §219- 
 
 tiuu to himself and his heirs, these, although a/cuchnn novum, go 
 to his heir in heritage {w). 
 
 § 220. From these cases {x) it Avill be seen that the extrinsic 
 inquiry is admissible in order to discover Avhat intention the granter 
 has expressed by a word which has different but fixed meanings in 
 different circumstances. When the meaning of the word has been 
 so ascertained, the deed, no longer ambiguous, must receive its 
 proper legal effect; and it is therefore incompetent by parole, by 
 the instructions given for preparing the deed, or by any other ex- 
 trinsic evidence, to prove that the granter meant to attribute some 
 peculiar meaning to the word referred to {y)}^ 
 
 § 221. Tenthhj — Where, from two provisions or bequests to the 
 same effect occurring in separate deeds, the question arises whether 
 both or only one be effectual, it would seem that extrinsic evidence 
 is admissible to solve the difficulty. 
 
 § 222. On this point it is necessary to observe, that when a 
 testator leaves two testamentary deeds or bequests in favour of the 
 same persons, the primary rule is, that unless the one is revoked 
 by the other expressly, or by plain implication, both shall receive 
 effect, as such must be presumed to have been the granter's inten- 
 tion (2). Yet this presumption will yield to a contrary inference, 
 where the terms of the deeds imply that the second bequest, if 
 identical in amount with the first, was meant to be a repetition of 
 it, or if differing in amount, was intended to be substitutionary : 
 the burden of proof always lying on the party who maintains that 
 
 {xv) Greenock v. Greenock, 1736, M., 5612. But an heir of entail purchasing hia 
 teinds under a fee-simple title, does not bring them under the fetters of the entail ; en- 
 tails being stricti juris, and dejjending on statute; Spalding v. Laurie, 1784, M., 14,461. 
 See also Galbraith v. Graham, 14th January 1814, F. C. {x) The cases tlius 
 
 cited are merely by way of illustration ; a full exposition of the law on the point being 
 beyond the scope of this treatise. The authorities are collected in Blair v. Blair, 1849, 
 12 D., 97 ; and are very fully and ably analysed in the session papers of that case (Ad- 
 vocates' Library Collection). (y) The cases on this point are cited supra, § 192, 
 (f), (w). {z) Stoddart v. Grant and Others, 1852, 1 Macq., 163 ; reversing 11 
 D.^ 860— Gillespie v. Donaldson's Tr., 1831, 10 S., 174— Sutherland v. Sutherland, 
 1825, 4 S., 220— Elliot v. L. Stair's Tr., 1823, 2 S., 250— Clark r. Hay, ib., 313— Stra- 
 ton's Tr. v. Cunningham, 1840, 2 D,, 820— Bell's Pr., § 1871—1 Williams on Execu- 
 tors, 134. 
 
 18 The judgment in the case of Robison supra involved the apparent anomaly, that 
 the meaning of the term " heir whatsoever," and the intention of the granter, were held 
 to be affected by events happening after the granter's death. But the Court held that 
 to be no sufficient objection to the judgment ; Robison v. Robison. mpra.
 
 § 223. ADMISSIBILITY OF PAROLE TO KXI'LAIN WRITINGS. 107 
 
 only one of tiic bocj^ucsts was meant to stand (a). In determining 
 this question, the Court will look chiefly at the terms of the deeds 
 themselves. But they may also admit the extrinsic fact that the 
 testator's fortune increased or diminished })etwcen the dates of his 
 deeds, as that throws considerahlc light on the question (b)}^ 
 
 § 223. It is not so clear whether evidence, direct or circum- 
 stantial, of the testator's intention can be admitted. In one old 
 case, where a party by two deeds, executed within a fortnight of 
 each other, mortified certain annuities for the board and education 
 of poor children, both deeds being precisely the same, except only 
 that the later in date appointed one more bo}' to be educated, and 
 mortified a larger sum, than did the former, — in a question whether 
 the second was to be held as additional to or substitutional for the 
 first, the Court of Session found that the two mortifications sub- 
 sisted as separate deeds. The truster's heir reclaimed against this 
 judgment, and prayed that the person who prepared and wrote 
 both deeds, and who was one of the instrumentary witnesses to 
 both, should be examined as to the truster's directions and declara- 
 tions on the point in issue, and generally as to wdiether it was 
 his intention that both should subsist, or that the second should 
 include the first and stand alone. The Court of Session having 
 refused this petition, the House of Lords on appeal altered the judg- 
 ment, and remitted with an order on the Court to allow the proof 
 craved (c). The proof was thus received in order to show that the 
 granter of the two deeds intended that only one of them should 
 stand. Its object was to redargue the legal construction of the 
 deeds as both subsisting declarations of intention. In another case 
 where two legacies of the same amounts had been left to the same 
 persons, the Court had regard to the fact that the testator's affection 
 for them had increased, while he had no predilection for his heir-at- 
 law, and, proceeding partly on tliat iiroof, the Court gave efiect to 
 the double bequest (cl). It would seem that proof of intention is 
 
 (a) Horsburgli i-. Ilor.sburgh, 1847, 9 D., 331—2 "Williams on Ex., 1107, and cases 
 there cited — Cases in note {z). (b) Per Lord Truro in Stoddart v. Grant, supra 
 
 — Lindsay v. Henderson, 1827, 5 S., 297 — per Lord Jeflrey in Ilorsburgh v. Hor.sburgh, 
 supra — Gny i\ Sharp, 1833, 1 My. and Kec., 589. (c) Falconer v. Falconer, 
 
 1721, Rob. Ap., 377— Sec also Kcr v. Wauchope, 1694, 4 B. Sup., 201. 
 
 (rf) Lindsay v. Henderson, supra. 
 
 '9 There is a presumption in the law of England against double portions in family 
 settlements, but (per Lords Chelmsford and Wensleydale. Lord Cranworth dissenting) 
 not in the law of Scotland ; Kippon v. Darley, 1858, 3 Mac^uecn, 203 — Beattio r. Thom- 
 son, 1861, 23 D.. !ir,3_lTopwood r. Hopwood, 1S.'.9, 7 Clnrk's H. of L., 728.
 
 168 ADMISSIBILITY OF PAROLE TO EXPLAIN WRITINGS. § 223- 
 
 adinissible in Eugiaud, where two bequests are so nearly alike as 
 to create the inference that onl}' one of tliem Avas meant to take 
 eiFect (e). In allowing that inference to be overcome by x^roof of 
 actual intention, the Court in effect support the declared intention 
 of the granter, as the object is " not to show that the testator did 
 not mean what he has said, but on the contrary to prove that he 
 did mean what he has expressed" (/). This principle applies in 
 England wherever the proof is tendered to " rebut an equity" {g); 
 as, for example, to show that a debtor leaving his creditor a legacy 
 did not mean that it should go in satisfaction of the debt (h), to 
 prove that a portion advanced to a cliild after the date of a will, 
 was not intended to be an ademption of a legacy to the same 
 amount (/). But where the Court, on construing the deeds together 
 conclude that they are both subsisting, extrinsic evidence is inad- 
 missible in England (except in replication) for the purpose of prov- 
 ing that they are substitutionary, because such evidence would con- 
 tradict and limit the expressions in the deed (^').-^ 
 
 The competency of thus proving intention has been challenged 
 in a recent case ; where the Court considered that the intention of 
 the testator was to be determined solely from the terms of the 
 deeds themselves (l). But the question of the admissibility of ex- 
 trinsic evidence did not require to be decided in that case. 
 
 § 224. Eleventhly — In construing ambiguous expressions in 
 deeds, especially those of ancient date, it is competent to prove the 
 usage or possession which has followed on them, and which is the 
 parties' own exposition of their language and intentions. This, 
 indeed, is the best mode of explaining obscure or obsolete expres- 
 sions in old writings (m). . 
 
 (e) Hurst v. Beach, 1821, 5 Mad., 351, adopted by L. Ch. Sugden in Hall v. Hill, 
 1841, 1 Dm. and War., 127— Coote v. Boyd, 1789, 2 Br. C. C, 521— Lee v. Pain, 1844, 
 4 Hare, 216. But see cmtra, Guy v. Sharp, supra. (/) Per Sir J. Leach, in 
 
 Hurst r. Beach, mpra. {g) Taylor, 792—3 Starkie, 783— Langham v. Sanford, 
 
 1816, 19 Ves., 641. {h) Cuthbert v. Peacock, 1707, 2 Vern., 593. 
 
 (?) Debeze v. Mann, 1787, 2 Bro. C. G., 165— Ellison v. Cookson, 1788, ib., 307, 1 
 Ves., 100 S. C.— Trimmer v. Bayne, 1802, 7 Ves., 508. {k) Hurst v. Beach, 
 
 1821, 5 Mad., 351— Hall v. Hill, 1841, 1 Dru. and Yv^ar., 127, per L. Ch. Sugden— Guy 
 V. Sharp, 1833, 1 My. and Kee., 608, per L. Ch. Brougham— But see Coote v. Boyd, 
 1789, 2 Br. 0. C, 521— Campbell v. E. Eadnor, 1783, 1 Bro. C. C, 271. 
 
 (I) Horsburgh v. Horsburgh, mipra, particularly opinion of Lord Justice-Clerk Hope. 
 
 {m) Per L. Wynford in Hcriofs Hospital v. M'Donald, 1830, 4 W. S., 101 ; affirming 
 F. D. Tf-ind Ca., 156—2 Phil., 346— Taylor, 780—3 Starkie, 775— Sugden on Vrnd. 
 
 '" IJopfT on Legax^ies, 4th edition, 1023.
 
 §226. ADMISSIBILITY OK PAliOl,]-: TO EXPLAIN WRITINGS. 109 
 
 § 225. Accurdiiij^iy, where u elualer Jcscribeii it.s subject both 
 by measurement and as possessed by A B and bounded by a certain 
 yard, and a question rose whether a piece of ground included in the 
 description by measurement, but not so possessed or bounded, was 
 conveyed, the Court, on considering a proof which they had allowed 
 before answer, held that the description by measurement was erro- 
 neous, and must be controlled by the possession and boundaries (n). 
 So in a question between a superior and vassal as to their respective 
 liabilities for parish burdens under a doubtful clause in the feu-char- 
 ter, proof of their mutual actings for a number of years after its 
 date is admissil»le and important to solve the difficulty (o). Thus 
 also a thirlage on tenants within a certain barony to grind the 
 " whole grindal)lo corn and gi'ains at the barony mill," may be ex- 
 plained by supervening usage to mean a thirlage of all growing 
 corn except seed and horse corn, being the thirlage which the 
 barony mill had enjoyed liy immemorial custom (^j). On the same 
 principle in construing crown charters to burghs and other ancient 
 deeds, the English Courts have repeatedly given effect to contem- 
 poraneous and consequent usage (r). 
 
 § 226. This kind of proof is also admissible iu questions as to 
 the articles subject to impost, and the amount of dues exigible, 
 under ancient Acts of Parliament in favour of magistrates of burghs 
 and the like {&). 
 
 and Purch., 178. The English authorities speak of this as proof of contemporaneous 
 usage. But that term does not accurately define usage which, ex hypothcsi, must always 
 follow on the instrument in question. See per Lord Brougham in Mag. of Dunbar v. 
 Her. of DuuLar, infra, § 226. (ra) Clark v. Scott, 1826, 5 S., 109 ; 6 S., 1028. 
 
 (o) Bruce v. Carstairs, 1773, M., 2333; affirmed on appeal — Dundee Masters and 
 Seamen j;. Wedderburn, 1830, 8 S., 547 — Heriot's Hospital v. Macdonald, supra, {m) — 
 Imrie v. Heriot's Hospital, 1828, S. D. Teind Ca., 152. {p) Simson v. Fordyce'a 
 
 Tr., 1824, 3 S., 225. See Cunningham v. Dunlop, 1836, 15 S., 295, where, in a ques- 
 tion as to the extent of a servitude of pasturage tixed by decree-arbitral, proof of the 
 eubsequeut possession was admitted. See also L. Falconer v. Taylor, 1775, 2 I'at. Ap. 
 Ca., 373— Falconer v. Lawson, 1778, ib., 442— Cochran v. Wallace, 1820, 2 Mur., 297— 
 Bcattie v. Law, 1787, Hume D., 729. (r) R. v. Varlo, 1775, 1 Cowp., 248— 
 
 Blankley v. Winstanley, 1789, 3 Durf. and E., 279— R. v. Bellringer, 1792, 4 ib., 810— 
 K. V. Miller, 1795, 6 ib., 280— per L. Ch.-Just. Tindal, iu Shore v. Wilson, 1842, 9 CI. 
 and Finn., 509 — In Att.-Gen. v. Drummond, 1842, 1 Dru. and War., 368, Lord Chan- 
 cellor Sugden observed — " One of the most settled rules of law for the construction of 
 ambiguities in ancient documents is, that you may resort to contemporaneous usage to 
 ascertain the meaning of the deed. Tell mo what you have done under such a deed, 
 and I will tell you wiiat the deed means." See also Sugden on Vend, and Pureh., 178 
 —2 Phil., 346—3 Starkie, 775— Taylor, 780. (s) Mag. of Linlithgow v. Edin. 
 
 and Glas. Railway Co., 1845, 7 D. 1071 ; 1 Macq. Ap. Ca.. 1— Milne i-. Leys, 1852, 14 
 D., 798— Murray v. Listou, 1843, 5 D., 1054— Girdwood v. Campbell, 1829, 7 S.. S^O.
 
 170 ADMISSIBILITY OF PAKOLE TO EXPLAIN WRITINGS. § 227- 
 
 § 227. Even public statutes of ancient date may be construed by 
 the light of contemporaneous and consequent usage, as the expositor 
 of their scope and meaning (t). Thus, in construing the important 
 public statute of 1579, c. 74, where the question was whether the 
 poor of a parish, which contained both a landward district and a 
 burgh, were to be managed and maintained separately or as the 
 poor of one parish, proof of the relative usage was held in the House 
 of Lords to be admissible as explaining the statute, the terms of 
 which left the question doubtful («-). So in a question whether 
 interlocutors pronounced by presbyteries required to be authenti- 
 cated in terms of the Act 1686, c. 3, which applies to " all interlo- 
 quitors pronounced by the Lords of Councill and Session, and all 
 other judges within the kingdome," proof of the usage on the point 
 was admitted, and was the chief ground on which both the Court 
 of Session and House of Lords sustained the interlocutors in ques- 
 tion, although they did not bear the statutory authentication (x). 
 And in a recent case, not yet reported, where the question was 
 whether the provisions of the Acts 1633, c. 6 — 1690, c. 17 — 1693, 
 c. 22 — 1706, c. 6 — regarding the right of presbyteries to supervise 
 schools and universities, applied to a certain public burgh school, 
 
 and 9 S., 170— E. Aboyne v. Mag. of Ecliuburgh, 1775, M., 1972— See also Mag. of 
 Lauder r. Brown, 1754, M., 1987; 5 B. Sup. 819, S. C— Mag. of Dunbar i;. Kelly, 
 1829, 8 S., 128— Mag. of Wigtoun v. M'CIymont, 1834, 12 S., 289. As to the effect of 
 usage following on royal charters and statutes creating a university, see Senatus Aca- 
 dcraicus of Edinburgh v. Mag. of Edinburgh, 1851, 14 D., 74, now (April 1854) under 
 appeal.2i (<) Besides the authorities in the following notes, see Stair, 3, 3, 6 
 
 — Ersk., 1, 1, 45— Meldrum v. Tolquhon 1675, M., 5737— Henry v. Pearson, 1838, 
 16 S., 827 — Sugden on Vend, and Pureli., 178 — 3 Starkie, 777 — Shephard v. Gos- 
 nold, Vaughan's Kep., 169— E. v. Scott, 1788, 3 Durf. and E., 604. 
 
 (m) Mag. of Dunbar v. Her. of Dunbar, 1835, 1 Sh. and M'L., 134, 195. In giving 
 judgment in this case, Lord Brougham observed, — " It is quite true that as against a 
 plain statutory rule no usage is of any avail. But this undeniable proposition supposes 
 the statute to speak a language not to be misunderstood, a language plainly and indubi- 
 tably differing from the purport of the usage. When the statute, speaking on some 
 points, is silent as to others, usage may well supply the defect, especially if it is not in- 
 consistent with the statutory directions where any are given ; or, when the statute uses 
 a language of doubtful import, the acting under it for a long course of years may well 
 give an interpretation to that obscure meaning, and reduce that uncertainty to a fixed 
 sense ; optimus legum interpres consuetudo, which is sometimes termed contemporaneous 
 exposition ; and where you can carry back the usage for a century, and have no proof 
 of a contrary usage before that time, you fairly reach the period of contemporary expo- 
 sition." The Court below were divided on the point, 11 S., 879. (x) Ferguson 
 V. Skirving. 1850, 12 D., 1146; affirmed 1 Macq., 232. 
 
 2' Affirinfd 26th Mav 1854. 26 J., 5 0.
 
 § 230. ADMISSIBILITY OF I'AKOLK TO EXPLAIN WRITINGS. 171 
 
 the Court were of opinion (but did not dociJe the point) that proof 
 of the usage by Avliich the statutes had been followed was admis- 
 sible in explication of their scope and meaning {'J)-^ 
 
 § 228. But while usage is admissible to explain such writings 
 in so far as their construction is doubtful, it cannot be received for 
 the purpose pf altering or controlling their meaning when clear {z). 
 The allegation that a right constituted by writing has been lost or 
 limited by non-use, must be maintained upon the law of prescrip- 
 tion. 
 
 CHAPTEH III. — OF THE ADMISSIBILITY OF CUSTOM AND USAGE OF 
 TRADE TO MODIFY OR EXPLAIN WRITINGS. 
 
 § 229. It has already been seen that extrinsic evidence is ad- 
 missible to prove any peculiar meaning which custom or usage of 
 trade has assigned to words occurring in a deed (a), and that ambi- 
 gTious expressions may be read by the light of the usage by which 
 the deed has been followed (&). An important class of questions re- 
 mains, — namely, as to proving the custom of a district or commu- 
 nity, or the usage of a particular trade, in order to supply omissions, 
 or to modify expressions, in written contracts and obligations.^ 
 
 § 230. In the first place, it is clearly incompetent for one of 
 
 the parties to a written contract to prove custom in contradiction of 
 
 the writing; because " the engagements of the parties to each other 
 
 by the express stipulations of a written instrument exclude all con- 
 
 . sideration of the custom of the country" (c).^ This rule (which 
 
 (y) Presb. of Elgin v. Mag. of Elgin, 7th March 1854.22 (j) Per Lord 
 
 Brougham, in Mag. of Dunbar v. Her. of Dunbar, supra — E. v. Varlo, 1775, 1 Cowp., 
 248— R. V. Miller, 1795, 6 Durf. and E., 280—3 Starkie, 775. (a) Supra, g 194, 
 
 el seq. (6) Supra, § 224, et seq. (c) Duke of Roxburghe v. Robertson, 
 
 17th July 1820, 2 Bligh, 156, 168, per L. Ch. Eldou; reversing 28th June 1816, Hume 
 D., 867— Bell's Pr.. 101. See also Taylor, 765, 9—2 Phil., 345. 
 
 22 Reported 1861, 24 D., 287. It was proved that the school was a public burgh 
 school ; and on the questions. Whether the acts applied to burgh schools, or to parish 
 schools only, and whether, if they applied to both, the right of the presbyteries had 
 been derelinquished as to burgh schools, it was held that the acts applied, and that the 
 usage in the burgh had been in conformity with the acts ; and the tight of the presby- 
 tery was sustained without proof of usage in other burghs, which was not allowed. 
 
 1 The usage will not receive elTect if unreasonable, unrighteous, or unfair ; Paxton 
 V. Courtnay, 1860, 2 F. and F., 131— Bottomley v. Forbes. 5 Bing. N. C, 121— Cuthb-rt 
 V. Cumming, 1855, 11 Hurl, and Gord., 405. and 10 Hurl, and Gord.. 809. 
 
 2 Muncev »•. Dennis, 18."i('i. 1 TInrl. and Norm.. 21 li.
 
 1 72 ADMISSIBILITY OF CUSTOM § 230- 
 
 liardly requires authority): is well illustrated by some cases in tlio 
 House of Lords, where leases which provided tliat all the fodder 
 except hay should be consumed on the land and never be sold or 
 removed, and that all the dung should be laid on the farm the last 
 year of the lease, were not allowed to be controlled by proving the 
 custom of the district to remove the straw of the way-going crop {d). 
 So where a contract for building a corner house fully specified the 
 rate per yard, &c., for the different parts of the building, and the 
 house w^as built according to a plan which showed there was circu- 
 lar work, and which was held in the circumstances to have formed 
 part of the contract, the builder was not allowed to prove a practice 
 to charge double prices for circular building (e). 
 
 § 231. Proof of custom is inadmissible, not only where the 
 written contract expresses, but also where it fairly implies, a con- 
 trary stipulation (/). Accordingly, where a written lease contained 
 full provisions as to the tenant's remuneration for improvements, 
 he was not allowed to prove a custom by which the landlord gave 
 his tenants an additional allowance, although such proof would not 
 have expressly contradicted the deed (g). And where a written 
 lease, which was full and minute in its stipulations, did not take 
 the tenant bound at his entry to pay for the preparation of the sum- 
 mer fallow by the outgoer, the landlord, wdio paid the amount to the 
 outgoer, was not allowed to prove that by the custom of the district 
 the incoming tenant had to refund it to him (Ji). So where the 
 powers of the manager of a company were detailed in writing, and 
 he offered to prove that by usage of trade persons in his situation 
 appointed the servants under them, the evidence was excluded, al- 
 though the written contract was silent on the point (/). On the 
 same principle where iron was bought under certain scrip-notes 
 which described it as " good merchantable brand," the Court were 
 of opinion that the purchaser could not prove that by the course of 
 dealing of the sellers (who were extensive iron masters and iron 
 merchants) brand frr)m particular works ought to have been deli- 
 vered (j).^ 
 
 {d) Duke of Roxburghe v. Robertson, svpra — Gordon v. Robertson, 1826, 2 W. S., 
 115; reversing 3 S., 056— Gordon v. Anderson, 1828, 3 W. S., 1 ; reversing 4 S., 13. 
 
 (e) Scott V. Hutton, 1827, 6 S., 233. (/) 2 Phil., 339— Smith's Lead. Cases, 
 
 306, 309— per Parke in Hutton v. Warren, 1830, 1 Me. and WcL, 466, 477. 
 
 {g) Gordon v. Thomson, 1881, 9 S., 735. (h) Alexander v. Gillon, 1847. 9 
 
 D., 524. {i) Gye & Co. v. Hallam, 1832, 10 S., 512. {J) Mackenzie v. 
 
 Dunlop, 1853, 16 D., 129.3 From the mode in which the point arose, it was not ex- 
 pressly decided. 
 
 3 Judgment reversed; and held that it might be proved that, according to flie general
 
 § 'l'6-l. TO MODIFY AND KXl'l-ALN WIUTIXOS. 173 
 
 The principle of these eases is, tluit iis the contract by implica- 
 tion embrtiees the matter on which the proof of custom is tendered, 
 the parties are presumed to have considered that matter, and not 
 left it to be imported by parole into their agreement. In other 
 words, the terms of the writing are more in accordance with the 
 exclusion than with the admission of the extrinsic proof. Under a 
 lease a portion of land was reserved for fallow and green crop, and 
 it w^as provided that the tenant should plough that portion, and be 
 allowed a certain sum for ploughing, — held that he could not claim 
 an additional allowance at common law {k).^ 
 
 § 232. On the other hand, when a question arises on a point 
 for which the written contract neither expressly nor by implication 
 provides, the parties are presumed to have contracted with reference 
 to the customary rule, wdiich may therefore be proved as supple- 
 menting the written agreement. Thus wdiere a feu-contract pro- 
 vided that each feuar should make up the street opposite to his own 
 feu, but there was no provision as to making up the street opposite 
 the vacant stances, one of the feuars was allowed to prove the 
 practice of superiors to make up that part of the street (J). And 
 where the trustees of an outgoing tenant sold the turnips of his 
 last crop, and this was not excluded by the terms of the lease, proof 
 that they had acted according to the custom of the district was 
 admitted in an action by the landlord for the proceeds of the 
 sale (m).^ 
 
 {k) Shireff v. L. Lovat, 18o4, 17 D., 177. [1) Hatton v. Peddie, 1830, 5 Mur., 
 
 157. (»0 Hamilton v. Reid's Tr., 1824, 2 S., 611— See also M'Intosh v. 
 
 Ogilvy's Tr., 180G, Hume D., 822— "Wiggleswortb v. Dallisou, 1779. 1 Smith's Lead. 
 Cases, 300. 
 
 usage of trade, the scrip notes, according to their true construction, referred to the special 
 kind of iron alleged ; and that as general usage of trade could be proved only by proof 
 of an accumulation of particular usages, it was competent to prove that parties dealing 
 with the defenders so understood their scrip notes ; but the mere dealing of the sellers 
 could not of it.self control the meaning of the notes; Mackenzie v. Dunlop, 1856, 3 
 Macqueen, 22. 
 
 * A charterer of a vessel to China, the ship to be consigned to his agents, was not 
 allowed to prove that, according to a custom in China, the agent there, as the charterer's 
 consignee, was entitled to provide charters for the homeward voyage, because no such 
 stipulati(m was in the contract; Phillipps v. Briard, 1 Hurl, and Norm., 21. 
 
 On proof that, according to the usage of a particular trade, a broker who purchased 
 without disclosing his principal was liable as principal, — a broker was made liable as 
 principal, notwithstanding that the terms of the bought and sold notes, though they did 
 not disclose tlie principal, clearly expressed that the broker was contracting as an agent 
 and not on his own account ; Dale v. Humfrey, 1858, Ellis and Ellis, 1004. 
 
 5 A custom that umlerwriters are not held liable for general average, in respect of the
 
 174 ADMISSIBILITY OF CUSTOM §233- 
 
 § 233. This principle is specially applicable to mercantile con- 
 tracts, which are often expressed shortly and on the mutual under- 
 standing that the custom of trade regulates all matters not expressly 
 pro\-ided for. Accordingly, " all contracts made in the ordinary 
 course of trade, and without special stipulation, are presumed to 
 incorporate the usage and custom of the trade to which they relate. 
 The trade as exercised, and its usual practice known to the parties, 
 are mutually understood to he within their intention in forming 
 their bargain, and to be relied on in their execution of it" {n).^ 
 Thus where a contract of sale does not specify the term of payment, 
 the buyer may prove usage of trade to allow a certain period of 
 credit (o). Where a merchant in Aberdeen bought from a merchant 
 in Eotterdam a certain quantity of timber, and a question arose, 
 whether the timber delivered was of the proper size, the seller 
 proved it was right according to the mode of measurement used in 
 Eotterdam, while the purchaser contended that he was entitled to 
 have the timber as by the measure used in Aberdeen. The chief 
 question, therefore, having come to be, whether Rotterdam or 
 Aberdeen was to be held the port of delivery, the Court allowed 
 the purchaser's letter (which was silent on the point) to be shewn 
 to mercantile witnesses, in order that they might state whether 
 they would understand the delivery under the contract to be at 
 Aberdeen or Rotterdam. The evidence also embraced the custom- 
 ary mode of measurement, on the Supposition of Rotterdam being 
 the port of delivery (p.) So in a case arising out of a written con- 
 tract to make a road, the contractor taking the stones from a quarry 
 belonging to the employer, the former was allowed to prove that 
 by usage of trade the chips belonged to him {q)? 
 
 (n) 1 Bell's Com., 440. (o) Burbidge & Co. v. Sturrock, 1832, 10 S., 520. 
 
 {p) Schuurmans v. Stephens, 1832, 10 S., 839, and 11 S., 781. 
 {q) Inglis V. Cunninghame, 1826, 4 Mur., 74. 
 
 jettison of goods stowed on deck, is a valid custom, and may be proved without contra- 
 dicting the ordinary terms of a policy, Miller v. Fotheringham, 1861, 6 Hurl, and 
 Norm., 278. Where bought and sold notes of mining shares speciiied the term of pay- 
 ment biit not the term of delivery, it was held competent to prove a custom of deliver- 
 ing the shares on payment; Field v. Selean 1861, 6 Hurl, and Norm., Exch., 617. 
 
 6 Gibson v. Small, 1853, 4 H. of L., 397— Smith's Leading Cases, 5th edition, vol. i, 
 529. 
 
 7 Proof of custom was allowed, to show that a bale of gambler meant, in the Gam- 
 bier trade, a package of a particular size and description,— that oil is " wet " if it contains 
 any water, however small the quantity— that a contract to deliver "best palm oil " is im 
 plemented if one-fifth, or other substantial porlion, of the oil delivered was best oil; Gor-
 
 § 'IXj. to modify and KXl'LAIX Wl.'ITINGS. ITf) 
 
 § 234. iJut while custom of trade is thus admissible, wherever 
 a contract in re mercatoria implies that such was the intention of 
 the parties, it is not (in this country at least) received indiscrimin- 
 ately in mercantile agreements. Unless the terms of the writing 
 are technical, the evidence of mercantile men will not be admitted 
 to explain it; because the construction of a written contract is for 
 the Court, not for the jury (/•). And if the writing is so copious 
 and precise in its stipulations, as to shew that it is a record of the 
 whole agreement relating to the point in issue, and not merely a 
 statement of some of its heads, the rest being left to usage of trade, 
 the Court will give effect to the agi'eement as recorded, and will 
 not allow stipulations to be added to it by a proof of usage (s). 
 The sphere of this kind of evidence is therefore limited to inter- 
 preting any technical words in the document, and supplying any 
 customary conditions which the pjarties may be presumed to have 
 tacitly agreed to. Aided by such evidence, the Court will construe 
 a mercantile agreement on the same principles as they apply to all 
 written expressions of a person's intention.^ 
 
 § 235. Little assistance can be derived from the law of Eng- 
 land in questions of this kind ; for " there can be no doubt that we 
 have never in Scotland gone so far as they have done in England 
 in admitting evidence of understanding or usage in order to con- 
 strue thereby a written document" {t).^ Nor does there seem to 
 be any reason for abandoning our own principles for the more lax 
 rules of English law ; since among the judges and text WTiters of 
 that country there is a strong feehng towards limiting the admis- 
 sion of this kind of proof («). It is more probable that our judges 
 will profit by the experience which has satisfied eminent English 
 
 (r) Calder v. Aitchison, 1831, 9 S., 777 ; affirmed 5 W. S., 410— Haldane v. Gray, 
 
 1842, 4 D., 1307— Peter v. Terrol, 1818, 2 Mur., 31, per L. Pitmilly— Milne v. Samson, 
 
 1843, 6 D., 355— But see M'Laggau v. M'Farlane, 1813, Hume D., 101. See supra, 
 § 193. (s) Gye & Co. v. Hallam, supra, § 231 — Mackenzie v. Dunlop, Wilson, 
 & Co., 1853, 16 D., 129. {t) Per Lord Justice-Clerk Hope iu Mackenzie v. 
 Dunlop, 1863, 16 D., 139. (u) Per Lord Brougham in Calder v. Aitchison, 1831, 
 5 W. S., 41G, supra, | 199— Per curiam in Hutton r. Warren, 1835, 1 Me. and Wei., 
 475 — Johnstone v. Usborne, 1840, 11 Ad. and El., 557— Per Lord Denman in Trueman 
 r. Lodcr, ib., 597— Taylor, 771-3 — Per Story iu the schooner Reside, 1835. 2 Sumne 
 (American). 567, cited in Taylor, 773. 
 
 rissen v. Perrin, 1857, 2 Scott's C. B. N. S., G81— Warde v. Stewart, 1 Scott's C. B. N. 
 S., 88— Lucas v. Bristow, 1848, Ellis and EUis, 907. 
 
 8 Myers v. Sari, 1861, 30 L. J. Q. B., 8, 12. 
 
 9 But the judgment in this case was reversed ; MacKenzie v. Dunlop ; see \ 231 
 note 3.
 
 17G ADMISSIBILITY OF CUSTOM § 235- 
 
 lawyers, that the indiscriminate admission of sncli evidence has 
 been attended witli injustice. 
 
 § 236. When a writing has been lost or withheld, the custom 
 or usage of trade in the matters to which it relates is admissible 
 along with other secondary evidence to prove its contents (x). 
 
 § 237. As to the nature and extent of the custom required, 
 where proof of custom is admissible, the rule is that it must be 
 so uniform and notorious, that both parties may fairly be presumed 
 to have had it in view when contracting (y) ; while, on the other 
 hand, it .does not require to be perfectly invariable (z)}^ The cus- 
 tom of the country will commonly prevail over any local usage in 
 matters of a general mercantile character (a) ; whereas, in provin- 
 cial matters, stich as contracts for service, the custom in the district 
 wall be regarded, provided it be uniform and notorious (b). In 
 leases, proof of a local custom will suffice ; but it must be so exten- 
 sive as to be well know^i and recognised ; the practice on a small 
 estate of three or four farms not being sufficient (c)." 
 
 (a-) Crawford and Lindsay Peerage Case, 1848, 2 CL and Fin., 534 ; 13 D. (H. of 
 Lords), 32— Brown v. College of St Andrews, 1851, 13 D., 1355. (y) 1 Bell's 
 
 Com. 440— Bell's Pr., § 101— Per L. Ch. Commissioner in Inglis v. Cunningham, 1826, 
 4 Mii'r., 81. (z) Burbidge v. Sturrock, 1832, 10 S., 520— Morrison v. AUardice, 
 
 1823, 2 S., 434— Girdwood v. Campbell, 1831, 9 S., 170— Whealler v. Methuen, 1843, 5 
 D., 1221— Bell's Com., supra. (a) See Bell's Com., supra— BelVs Pr., g 101— 
 Mackenzie v. Dunlop, Wilson & Co., 1853, 16 D., 129. {h) Morrison v AUardice, 
 
 1824, 2 S., 434— See infra, § 850. (c) Allan v. Thomson, 1829, 7 S., 784— 
 
 10 It requires long and invariable usage to supersede the general law of the country 
 in any particular locality. So, where a proof was attempted that scourers of linen in 
 Paisley had, in virtue of a local custom, a right to retain linen sent them for scouring, 
 in security of an account due to them for scouring other quantities of linen, it was held 
 that, as the usage proved was merely fluctuating and of a few years' standing only, it 
 could not receive effect ; Smith v. Aikman, 1859, 22 D., 344. On the other hand, to 
 support a case on mercantile usage, " there needs not either the antiquity, the uniform- 
 ity, or the notoriety of custom, which, in respect of all these, becomes a local law. The 
 usage may be still in the course of growth ; it may require evidence for its support in 
 each case ; but, in the result, it is enough if it appears to be so well known and ac- 
 quiesced in tliat it may be reasonably presumed to have been an ingredient tacitly im- 
 ported by the parties into their contract "; Justice Coleridge (delivering opinion of Privy 
 Council) in Ghose v. Manickchund, 1859, 7 Moore's Indian Ap., 263, 282. 
 
 A usage in Lloyd's Coffee-house, as to persons insuring there, was held not to apply 
 where contracting parties were ignorant of it ; Sweating v. Pearce, 1861, 9 Scott's 
 C. B. N. S., 534 ; and the presumption that parties made an agreement with reference to 
 a local usage, has no place when one of the parties does not know of the usage ; in that 
 case evidence of the usage will not be admitted; Kirchner v. A'enus, 1859, 12 Moore's 
 Privy Council Pieports, 361. 
 
 " According to the Law of England, the custom of the country may be proved to
 
 § 238. TO MOIMFV OK KXl'LAIN WKITIXGS. 177 
 
 L'lidfr an issue wlicllitr ii \A\[ puyaljlu ut a llcslicrs shop in 
 Glasgow had been presented during l)usiness liours, the custom as 
 to tlic hours of the flesliers in the district, or of fleshcrs generally, 
 and not as to business hours in general, was held to form the 
 rule (d). 
 
 There is sometimes a (juestion which of two different usages, 
 prevailing in different places, lias to be regarded. It has been held 
 that in an action on a policy with a Scotch insurance company, the 
 equipment of sails, &c., must be complete according to the usage in 
 Great Britain, not in Nova Scotia, where the vessel was built and 
 owned (e) The usage prevailing in the port of delivery was held 
 to fix the mode of measurement in a contract of sale of timber (/). 
 In an action for the price of ornamental plaster work executed in 
 Glasgow, the customary prices there were held to be the rule, and 
 proof of those in London was refused (;/). For a full discussion of 
 the bearings of the lex loci contractus, the lex loci solutionis, and the 
 lex rei sitae, in such questions, reference must be made to the work 
 of Judge Story (//).^2 
 
 § 238. Proof of usage or custom will not be admitted^to sup- 
 plement the terms of a written contract, unless it is averred on 
 record and covered by the issue (i). 
 
 Alexander v. Gillon, 1847, 9 D., 524— M'Leod v. Bruce, 1816, Hume D., 842— M. 
 Tweeddale v. Brown, 1821, 2 Mur., 505 — Compared with Bell v. Lament, 24th June 
 1814, F. C— 1 Bell's Com., 74, 440. (d) Neilson v. Leighton, 1844, 6 D., 622. 
 
 (e) Cook V. Greenock Marine Ins. Co., 1843, 5 D., 1379. (/) Schuurmana 
 
 V. Stephens, 1832, 10 S., 839; 11 S., 779. {g) Wilson v. Gordon, 1828, S., 
 
 1012.— See also Whealler v. Methuen, 1843, 5 D., 1221. {h) Story, Confl., ? 270, 
 
 et seq. (i) Milne v. Samson, 1843, 6 D., 355 — Mackenzie v. Duulop, Wilson & 
 
 Co., 1853, 16 D., 129— Guthrie v. Cochrane, 184G, 19 Sc. Jur., 69. 
 
 ailect the terms of a tenancy, but, under that rule, evidence of the usage of a particular 
 estate is not admissible unless it be shewn that the tenant was aware of it. " The law 
 takes cognisance of the division of the country into counties and parishes, which are 
 legal and public divisions, but not into properties or estates, which are purely private "; 
 rolloek, C. B., "Womcrsley v. Dally, 1857, 26 L. J. Exch., 219. 
 
 12 Where the defendant, by a charter party executed in London, agreed to load on 
 board a vessel at Trinidad " a full and complete cargo of sugar molasses," the custom 
 at Trinidad, to jiack up such cargoes in a certain manner, was held imported into the 
 contract, although there was no such custom at London ; Cuthbert v. Cumming, 1855, 
 11 Hurl, and Gord., 405, antl 10 Hurl, and Gord., 809. 
 
 Vt)L. I. 
 
 M
 
 178 CUNTHADlt'TING ANT' M()l>lKYlN(i DI'^EDS i^ '2:^.1- 
 
 CHAPTEU IV. — OF CONTRADICTING AND MODIFYING DEEDS BY 
 WRIT OR OATH OF PARTY. 
 
 § 239. The terms of every writing may be contradicted, re- 
 stricted, or modified by the oath on reference of the party founding 
 upon it, or by liis writ emitted after its date. Tlius where a deed 
 narrates a price paid, non-payment may be proved by the granter's 
 writ or oath (i). The oatli of party was admitted to prove that a 
 chiuse in a lease, binding the parties respectively to pay for amelior- 
 ations or deteriorations (as the case might be) at its expiry, in- 
 cluded a mill erroneously and contrary to the real agreement (j). 
 It was proved by oath of party that the true consideration in a 
 bond bearing to be for borrowed money was an indenture with the 
 debtor's son as an apprentice ; whereon parole evidence of mal- 
 treating the son was admitted as a ground for suspending diligence 
 on the bond (Jc). And oath of party was received to prove that a 
 bond was granted for the price of a horse, whereupon a condition 
 to take back the horse if it did not please, and the existence of 
 latent flaws in it, were proved by witnesses (/). Writ or oath is 
 also admissible to show that a disposition ex facie absolute was con- 
 ditional, and that it was a blunder to state the contrary (m). And 
 the existence of a latent condition voiding the contract may be 
 proved by oath of party ; so as to let in parole evidence of non-im- 
 plement (n). By statute, also, writ and oath of party are admissible 
 to prove the ground of reduction on the Act 1621, c. 18, for defeat- 
 ing fraudulent alienations by bankrupts ; and they are the only 
 competent evidence of trust under the Act 1696, c. 25. 
 
 § 240. It is competent to prove by writ or oath that a deed was 
 modified by subsequent agreement, as where it is alleged that the 
 term of removal in a lease was delayed (o), or the rent abated (p), 
 or that written instructions to a broker were altered verbally (r). 
 
 {i) Gordon v. Trotter, 1833, 11 S., 696. (J) Lawson v. Murray, 7 S., 380— 
 
 See also Faimey v. Lord Melville, 1662, M., 12,308. (k) Aikman, 1665, M., 
 
 12,311— See also Gun v. Eraser, 1714, M., 12,337. (/) Sim v. Inglish, 1674, 
 
 M., 12,321— See also Kinnaird v. M'Dougal, 1694, 4 B. Sup., 184. (m) Stewart 
 
 V. Ferguson, 1841, 3 D., 668, 674, per Lord Ordinary Ivory. (n) W^ilkies v. 
 
 Gordon, 1618, M., 12,407— Kinnaird v. M'Dougal, 1694, 4 B. Sup., 184. 
 
 (o) Thomson v. Terney, 1791, Hume D., 780— See Sharp v. Clark, 1807, Hume 
 D., 577. {p) Gib v. Winning, 1829, 7 S., 677— See also Law v. Gibsone, 
 
 1835, 13 S., 396. (r) Stevenson v. Manson, 1840, 2 D., 1204.
 
 § 242. 15V WKIT (>U OATJI OF I'ARTY. 17i» 
 
 The stipulations iu a charter party may be inoJiiicd by subsequent 
 written directions, so as to constitute a new contract («). 
 
 § 241. A party's oath is admissible to prove that he renounced 
 a riglit constituted by deed, as a written lease (/), or a bond («), or 
 to prove that a creditor with an inffftment of annual-rent acce])ted 
 a part of the lands in satisfaction of his right (x), or that a creditor, 
 on receiving part payment, discharged a debt on which he had led 
 adjudication (//). Thus, also, a concert among creditors to suspend 
 diligence against their common debtor was held binding, although 
 not reduced to writing, and oath of party was received to prove 
 it (z). The principle, indeed, holds universally that the law from 
 favour to pacta liheratoria does not insist on written proof of them ; 
 since, if they are admitted on oath, there is no ground for doubting 
 their genuineness (o). 
 
 § 242. There is sometimes a difficulty as to the competency 
 and effect of proving by oath of party obligations additional to those 
 contained in a deed. The following distinctions are suggested on 
 the point, on which there are few decisions. Wherever the addi- 
 tional obligation does not in itself require writing for its constitu- 
 tion, it may be proved by oath on reference, in order to compel spe- 
 cific implement {b). Again, if the party founding on a deed admits 
 that a stipulation which in itself requires ^mting, was one of the 
 conditions of the real agreement, he will not be allowed to enforce 
 the deed without implementing the condition ; which may thus 
 indirectly be made effectual. One who founds on an additional 
 stipulation which requires writing for its constitution, will also be 
 allowed to enforce it specifically, if he proves its existence by his 
 opponent's oath, and proves prout de jure that rei interventus has 
 ensued on the faith of it (c). But, on the other hand, if the party 
 founding on a deed denies on his oath on reference that it was con- 
 tingent on or burdened with a verbal addition of this nature, the 
 
 («) Hall V. Bro\sii, 1814, 2 Dow, 3G7. {t) Craigmillar v. Chalmers, 1639, 
 
 M., 12,308. (m) Hepburn v. Hamilton, 16G1, M., 8465. (x) Ker v. 
 
 Hunter, 1666, M., 8465. (y) SteiU'. L. Orbiston, 1679, M., 8467. Here there 
 
 had been rei interventus on the transaction. {z) M'Dougal i-. Clapperton, 1726, 
 
 M., 8468. (a) Ersk., 3, 2, 3— Tait, 225. On the same ground, an agreement to 
 
 remove without warning may be proved by the tenant's oath ; Edmonston i^. Bryson, 
 1744, M., 12,415, 13,884 — Ivory's Ersk., 382, note 135; and an agreement to dispense 
 with renunciation of a lease may be proved by the oath of the landlord ; Carlisle v. 
 Lawson, 24th Jaiuuiry 17o2 (not rep.), cited in Edmonston r. Bryson, supra, and Ivory's 
 Ersk., ib. {b) See Weir v. Kussoll, 1703, M., 12,331— Brisbane v. Gltisgow 
 
 Merchants, 1684, M., 12,328. (c) See § 166, ami the chapters on rei interventus. 
 
 below. 
 
 m2
 
 180 CONTRADICTING AND MODIFYING DP:EDS, &C. § 2^'l- 
 
 iVn'iuor luay be enforced alone, and the latter, being an independent 
 obligation not validly constituted, will fall ; unless its defects have 
 been removed b}' rei interventus (d). 
 
 § 243. Where a written contract contains ambiguities, tliey 
 may be cleared up by oath on reference as to the real meaning of 
 parties (e). 
 
 {d) Sco on these points Tuit, 220. (e) Stewart v. Fergnson, 1841, 8 D., 
 
 668, per Lord (Ordinary) Ivory.
 
 §245. lUHKCT AM) INDIIiKCT EVII)i:Nri:. IM 
 
 TITLE VI. 
 
 OF EVIDENCE AS DIVIDED INTO DIRECT AND INDIRECT ; 
 AND OF THE DIFFERENCE BETWEEN CIRCUMSTAN- 
 TIAL AND PRESUMPTIVE EVIDENCE. 
 
 The rulus cliscusscd in tliu preceding' chai)ters relate chielly to 
 the admissil)ility of evidence. We proceed now to consider the 
 difFereut modes in wliich the evidence, when admitted, Ijears on 
 the questions in issue. 
 
 § 244. Every item of the evidence in a cause is either direct 
 or indirect. By the former term is meant evidence expressly afhr- 
 mative or negative of the issue. The only question therefore in 
 regard to such evidence is, whether it is to he helieved, — that is, 
 whether the document is genuine and its contents true, or whether 
 the witness has accurately observed and remembered, and has 
 truthfully related, the facts to which he speaks. On the other 
 hand, indirect (which includes circumstantial and jjresumptive) 
 evidence, consists o^ tx factum prohatum of one kind, Irom which a 
 diifcrent fact, tho factum probandum, has to be inferred l)y a pro- 
 cess of reasoning. Consequently, indirect evidence embraces two 
 inquiries, — first, whether there is sufficient proof of the probative 
 facts ; and, second, if so, whether the fact in issue is deducible 
 from them by an inference sufficiently strong to found a verdict. 
 
 § 245. A strict metaphysical anal3^sis shows that much of what 
 is constantly received as direct evidence is really inferential. This 
 is the case as to all evidence of identity ; where the direct proof is, 
 that certain characteristics known to belong to a certain person 
 occur in the person identified, and the identity is an inference de- 
 duced from the coincidence, coupled with our experience that two 
 persons seldom resemble each other so closely that accurate obser- 
 vation will not distinguish them (a). Accordingl}--, although every 
 
 (a) See on tlii:?, Keid on the Tntellectnal Powers, Essay vii, cli. 3, ? 004.
 
 182 DIKECT AND INDIRECT EVIDENCE. § '245- 
 
 iiiaii leels a moral certainty in identifying his own acquaintances, 
 persons often confidently but erroneously infer identity in regard 
 to strangers, from regarding points of coincidence and overlooking 
 points of dissimilarity (b). In the same way, when I swear that 
 certain letters were written to me by a friend or correspondent, the 
 direct proof is that these letters and those of my friend possess the 
 same characteristics of handwriting and style, that the subjects of 
 the letters in issue are what usually occur in his correspondence, 
 and that these letters are in sequence and connection with those 
 addressed by me to him, and (as I presume) received by him ordy. 
 From such circumstances I conclude with perfect confidence that 
 the letters were written by my friend. I may be right as to the 
 primary facts, yet my inference may be erroneous, owing either to 
 an unusual number of coincidences occurring in the particular case, 
 or to the letters in issue having been fabricated. 
 
 § 24:0. In ordinary acceptation, however, evidence of tliis na- 
 ture is not treated as indirect or inferential ; l)ut those facts which 
 the witness may depone to, although embracing his inferences 
 from more direct facts, are regarded as direct evidence, unless when 
 they l)ear on the facts in issue through the medium of an inference. 
 Evidence of identification and the hke is therefore regarded as 
 direct, unless when the witness states the points of similitude, and 
 leaves to the jury to infer the identity. 
 
 §247. The terms "circumstantial" and "presumptive" evi- 
 dence are often used synonymously. But in correct legal language 
 they are different species of the genus "indirect" evidence. In 
 this view, presumptive evidence consists of a single fact or a small 
 group of facts, from which another fact is inferred, on account of the 
 general experience of mankind having found them to be frequently 
 coincident. In presumptive evidence, therefore, we arrive at the 
 result not so much by reasoning out the inference applicable to the 
 facts of the particular case, as by observing that that case comes 
 within a category of cases, from which a certain inference is usually 
 deducible (c). On the other hand, cases of circumstantial evidence 
 cannot be thus generalised. Each one is individual and pecuKar, 
 
 [b) Several instances of erroneous identification are collected infra, 'i 262. 
 
 (c) According to the view stated in the text, every case of presumptive proof may be 
 reduced to a syllogism, of which the major premiss is, " Most A are B," e.g., " Most 
 persons holding bills are onerous creditors," or " Most persons liaving the possession of 
 moveables are the proprietors of them." But cases of circumstantial evidence cannot 
 be so resolved, because there are no categories of similar cases with which they can be 
 classified.
 
 § 247. DIUKCT AMD IN]JlUi:( T KVIDKXCE. 183 
 
 and tlic result is ol)taiiic<l hy a pi-ocess ol" reasoning applied to tlic; 
 specific circumstances proved, independentl}' of" precedents. Such 
 cases often embrace a number of presumptions, and require a La- 
 lancing of conflicting probabilities ; whereas, in a pure case of pre- 
 sumptive evidence the facts are simple, and the inference is recog- 
 nised at once by all men of ordinary understanding (cZ). 
 
 (il) The distinction between circiimstuntial and jircsuniptivo evidence is well stated 
 in 1 Starlvic, 558.
 
 184 CIRCUMSTANTIAL EVIDENCE. § "248- 
 
 J ITLE VII. 
 
 OF CIRCUMSTANTIAL EVIDENCE. 
 
 § 248. Having thus explained generally the nature of circum- 
 stantial evidence, we proceed to examine it in detail (a). There 
 are few more important branches of law; for not only does evidence 
 of this kind enter more or less into every judicial investigation, but 
 farther, " most of the facts upon which courts of justice act, not 
 only in civil but in criminal cases, even in those which affect the 
 lives of individuals, are established by circumstantial proof" (&). 
 It is essential to the well-being of society that crimes should not 
 go unpunished merely because they have been committed in secret; 
 and that civil rights should not be lost on account of there being 
 no direct proof of the facts on wliich they depend. But if circum- 
 stantial evidence were not credible, no such views of expediency 
 could entitle us to rely upon it. We do so because reason, expe- 
 rience, and the common assent of mankind prove its trustworthi- 
 ness. It is not only our guide in the ordinary affairs of life ; it is 
 also the ground of our belief in the highest religious and scientific 
 truths. The demonstrations of Butler, Paley, and Chalmers are 
 different congeries of circumstantial proofs. So are the physical 
 systems of Newton and Copernicus. Indeed there is not a science 
 or brunch of philosoj^hy, mathematics alone excepted, which does 
 not depend more or less on circumstantial evidence. 
 
 In treating of this subject wdth reference to judicial investiga- 
 
 (a) This subject is treated by Mr Burnett, 518, et seq., and Mr Alison, vol. i, p. 74, 
 241, 445. In England it is the subject of an ample commentary by Mr Starkie, vol. i, 
 p. .560. et teq., 3d ed. ; and of a work by Mr Wm. Wills. It is also treated of in Mill's 
 Logic, B. iii, ch. 23— Benth. Jud. Ev., B. v. — and Mcnochiis de jjresumjjiiombus ; and it 
 is expounded by Chief- Justice Shaw in the trial of Dr Webster, reported separately by 
 O. 15emis, 1850. (^j Per L. Wynford in Galbraith v. Galbraith, 1881, 5 W. 
 
 S., 87.
 
 §251. CIRCUMSTANTIAL EVIDENCE. 185 
 
 tions, wc .sliall lirst cuiisiiltT tluj i.riii(i])los of circiiinstuutial ovi- 
 deiico, ami tlnii analyse a few illii.strative cases. 
 
 § '249. All huiuau acts aiul trausactions arc jiaits of a great 
 tissue of circmnstunres spreading over the history and cliaracter of 
 the individuals cunccrncd, and reaching to tlie external Avorld. Of 
 all these circumstances none arc independent or isolated ; but each 
 is united and intertwined by countless links and ties with its ante- 
 cedents, its adjacents, and its consequents (c). Every day we meet 
 some of these groups of circumstances, whose relative dependence 
 and sequence we observe ; and by reading and conversation ^ve par- 
 ticipate in similar experiences of other men. From these materials 
 we form opinions as to the mutual contingency both of human ac- 
 tions and of material phenomena; and that not oidy in their outward 
 manifestations, but even in their latent causes and results. We 
 learn to discriminate more or less successfully between the essential 
 and the accidental qualities of similar cases, and to trace the prin- 
 ciples of combination in new groups of circumstances. Sometimes 
 we know only certain members of the series, but from these we can 
 ascertain those which are awanting. 
 
 § 250. To discover the missing from tlic known facts — the 
 facta probanda from i\\Q facta probata — is the province and object 
 of circumstantial evidence. The result depends on the probability, 
 sometimes amounting to moral certainty, of the coincidence be- 
 tween them, as compared with any coincidence of an opposite na- 
 ture. The ground-work of the reasoning by wdiich we decide the 
 question is our belief in the permanence of the order of nature in 
 the moral as well as the material world ; for we find moral causes 
 operating with almost as great uniformity as physical, although 
 from the latency of mental operations, their slight and often am- 
 biguous indications, and the countless diversities of individual 
 characters, we are more apt to mistake them than material pheno- 
 mena ((/). 
 
 § 251. The facts which circumstantial proof may embrace are 
 innumcralde, as are the occurrences in the course of nature and so- 
 ciety, and the incidents of daily life. They may be classified into, 
 1st, Circumstances of a purely material nature ; 2d, Those relating 
 to men and the lower animals in their character of living beings ; 
 and, 3d, Mental idienomena, inferred (as they must always be) from 
 external indications. 
 
 These classes of circumstances will be noticed in their order. 
 
 (c) From 1 Starkic, 560. ('0 From Wills on Circ. Ev.. 10.
 
 186 CIRCUMSTANTIAL EVIDENCE. § 252- 
 
 § 252. I. — Opportunity to commit the offence must be the basis 
 of every criminal charge. It embraces nearness in time and place 
 to the scene, possession of the means by which it appears to have 
 been committed, or of power to procure them, and the appropriate- 
 ness of the means within the prisoner's reach, to produce their sup- 
 posed effect. Sometimes possession of the individual instrument 
 Avitli Avliich the crime Avas perpetrated is traced to the accused, and 
 goes far to prove his guilt. An example of this occurred in a case 
 of burglary in England, where one-half of a broken knife lay beside 
 the opened window, whicli bore marks of the blade, and the other 
 half precisely fitting it was found on the prisoner's person (e). In 
 another case a witness sw^ore that the broken piece of the key left 
 in the forced lock was part of one which recently before he had 
 made for the prisoner (/). In a case of murder, also, the wadding 
 used in charging the gun was a piece of paper which precisely 
 fitted another piece taken from the prisoner's pocket, so that they 
 formed a printed ballad, the lines of which ran across the tear {g). 
 In another case the bruised marks on the face of the assaulted per- 
 son corresponded to the wards of a large key belonging to the pri- 
 soner, with whicli the blow was said to have been given. Some- 
 times the prisoner is brought to the scene of the crime by his shoes 
 exactly fitting the bloody footprints on the floor, and on the clay 
 or snow outside, the identification being complete owing to peculiar 
 marks, e.g., a patch on the sole put on with nails of a different size. 
 Of the same nature is proof that the threads of the cut web found 
 in the prisoner's possession, and those of the part left on the loom, 
 correspond exactly when examined with a magnifying glass. 
 
 § 253. In cases of murder, the existence of recent stains of 
 blood on the prisoner's clothes is not of much weight by itself; 
 because injuries wdiich draw blood happen occasionally to every 
 person, and the occupations of some people expose them daily to 
 such accidents, or to stains from other bloody objects. But such 
 marks may be important from the part of the prisoner's dress 
 where they occur, and from their combination with other circum- 
 stances ; as in a trial for murder where there were marks of blood 
 and milk on the knee of the prisoner's trousers, and milk had been 
 
 (e) 1 Starkie, 562. — See a similar case mentioned by Chief-Justice Shaw in Dr Web- 
 ster's trial, separate report, p. 40(3. (/) Crowder, 1831, 1 Al., 318. 
 
 {g) R. V. Mountford, 1835, 1 Moo. C. C, 441, as noticed in Wills, 97— Benth. Jud. 
 Ev., B. v., ch. 15—3 Hans. Pari. Deb., p. 1740 (3d Series), where Lord Eldon relates a 
 similar case.
 
 § 255. CIRCUMSTANTIAL EVIDENCE. 187 
 
 spilt uii the ll(jui- wlicrc the Ixjdy lay (A). Aii-.tlior physical cir- 
 cumstancG of a criminating nature, and which occurs in daily 
 practice, is possession of the stolen goods shortly after the theft. 
 And in prosecution for coining, the prisoner's possession of a num- 
 ber of base coins of the same manufacture as the one libelled on, 
 creates a high probability that it was either coined or uttered by 
 
 him. 
 
 § 254. Sometimes evidence of this character bears with absolute 
 
 certainty an inference highly important to the cause; — as where 
 writing of a certain pretended date appears on paper which is 
 proved to be of a later manufacture; where the bullet with which 
 a man was killed is too large to fit the pistol which some one had 
 placed beside him to make believe that he had committed sui- 
 cide (0 ; and where a ragged rusty knife covered with blood is in 
 the dead man's liand, but the wound is smootli as if cut with a 
 razor. So the inference that a crime had been committed by a 
 certain person wuuM be conchisive if it were proved that no one 
 else was near the scene of it during the time within which it must 
 have been perpetrated; Avliile an alUn (which is seldom satisfac- 
 torily proved) necessarily infers innocence. In the trial of Cour- 
 voisier for murdering his master, Lord William Eussell, certain 
 marks appeared on a back door of the house, as if indicating that 
 it had been broken open ; but they did not show sufficient force 
 for that purpose and they appeared to have been made from within, 
 with a bent poker found in the prisoner's pantry. The only ways 
 by which the house could be approached by the back, were over a 
 wall covered with dust, which bore no marks of any one having 
 been upon it, or over some tiling which was so old and frail that it 
 w^ould not have borne the weight of any person. These circum- 
 stances proved that the appearances of burglary were fabricated; 
 and they were strong circumstances against the prisoner (J). 
 
 § 255. But highly important as evidence of this nature is, con- 
 siderable caution is required in estimating it. The conclusiveness 
 of the inference up to a certain point tends to make us overlook 
 the want of a sufliciently strong connection between that inference 
 and the fact in issue. — A striking instance of this occiirred in Eng- 
 land in the trial of Isaac Looker for sending threatening letters, 
 where the evidence of handwriting was contradictory, but the 
 
 (A) Scanlan.s, High Court of Justiciary. '• Edinburgh Courant " Newspaper. 15tli 
 Juue 1852.— See also Richardson's case, noted infra, ^ 285. («) A case of this 
 
 kind happened at Liege in 1764: 3 Paris and Fonblanque Med. .lur., 34, 39. 
 
 (./) R. V. Courvoiser, 1840, Wills nn Circ. Ev., 241.
 
 188 CIRCUMSTANTIAL EVIDENCE. § 255- 
 
 paper on wliiili tlie letter was written, and tliat of two other similar 
 letters, and of a scrap of paper found in the prisoner's bureau cor- 
 responded exactly, their ragged edges fitting, and tlie water-mark 
 of the maker's name, wliicli liad been in three parts, being complete 
 when the pieces were placed together. On this proof the jury con- 
 victed the prisoner; and he was sentenced to transportation. The 
 judge and jury having retired for a few minutes, the prisoner's 
 son, a youth of about eighteen years of age, was brought up by the 
 prisoner's attorney, and confessed the crime. He then wrote from 
 memory the contents of the letter, Avhich on comparison left almost 
 no doubt of the truth of his statement, as it only differed a little 
 from the very words of the original, and contained the same mis- 
 takes in spelling. The proof was completed by his making an 
 exact duplicate of the document, on being requested to copy it in 
 Court. Two days afterwards he was tried and convicted. It ap- 
 peared that he had access to his fathers bureau, which was com- 
 monly left open. On this case Mr Wills justly remarks that, con- 
 sidering that any one had access to the father's repository, the 
 weight of the circumstance on which he was found guilty was over- 
 rated (k). The case of the pistol already referred to illustrates the 
 same risk of error; for had the bullet fitted, the conclusion would 
 have been drawn that the party had killed himself, unless there 
 had been very strong circumstances of an opposite tendency. On 
 tins point it may be noticed that the water-mark of the year on 
 paper is not to be relied upon; for it has re})eatedly been proved 
 that manufacturers issue paper marked of a date some months in 
 advance, and sometimes use moulds of a very different date from 
 the true one (I). The same may be said of the dates affixed to 
 books; for example, Mr Napier's recent work on the law of pre- 
 scription bears on the title page the year 1854, whereas it consists 
 of two parts, the first of which was published fourteen years before, 
 and the second in the beginning of November 1853. 
 
 § 256. Circumstantial evidence of a physical character may 
 also be fabricated; and the more simple the facts which infer the 
 conclusion, the easier is the forgery (m). In this way Jacob was de- 
 ceived into believing that Joseph had been killed ; and the theft of 
 Joseph's cup appeared to be brought home to Benjamin. So the 
 circumstance of prints from the prisoner's shoes being found on the 
 
 (k) Wills' Circ. Evid., 141— R. v. Looker, Annual Reg., 1831, p. 9. 
 (0 See Ro.lgor r. Kay, 1834, 12 S., 317— Miller v. Eraser, 1826, 4 S., 551— Wills, 
 20, 114. (to) a striking instance of this is noted infra, J 288.
 
 §257. CIRCUMSTANTIAL EVIDENCE. 189 
 
 scene may bu dclu.sive, owing tu the real culprit having worn 
 another person's shoes in order to divert suspicion from himself. 
 This might easily happen where the true criminal is one of a num- 
 ber of men who lived together in a bothy or lodging house, so that 
 he could probably find some fellow-lodger's shoes which would fit 
 liiiu. Two known instances have occurred in England (and there 
 have probably been many more) (n), in which the real thief when 
 pursued passed the stolen property to a stranger, who was there- 
 upon erroneously convicted of the crime. The one was a case of 
 horse stealing, for which tlie supposed thief was executed, and 
 which the real culprit afterwards confessed (o). In the other (a 
 case of cattle stealing) the innocent party was sentenced to trans- 
 portation for life, but was pardoned in consequence of a representa- 
 tion of the circumstances. On being apprehended he had assumed 
 a false name to conceal his situation from his friends (jj)- Tlie 
 possession may also have been the work of animals of secretive 
 habits. In a French case a man was convicted of stealing several 
 gold pieces ; which had been found in his trunk. After his execu- 
 tion the real culprit was found to be a magpie, Avhich had secreted 
 the pieces there without his knowledge, by dropping them through 
 a small hole in the lid (q). 
 
 § 257. A striking instance of fabricated circumstantial evidence 
 occurred in a trial for manslaughter in England, where a wdtness 
 s\vore that the prisoner committed the deed with heavy blows from 
 a bludgeon. On cross-examination he was requested by the pri- 
 soner's counsel to show with wdiat amount of violence the blows 
 had been given, w'hen the stick flew into pieces on his striking it 
 on the table. The consequence was a verdict of acquittal. But 
 the secret history of the case was, that the weapon had been bor- 
 row'cd by the prisoner's attorney, and had been roasted in an oven. 
 The error into wliicli the prosecutor fell was allowing the risk of 
 such a contingency, and failing to trace the history of the weapon. 
 On account of such risks of tampering, the dishes, portions of the 
 intestines, &c., which are supposed to contain traces of poison, 
 should always be sealed up with great care, and put into a place of 
 security, and before any experiments upon them begin, the seals 
 should be carefully examined to show that they are entire. 
 
 (n) The author may be permitted to express the opinion, that juries are apt to infer 
 giiilt of tlieft from recent possession, without sufficiently corroborating circumstances. 
 
 (0) Sir M. Hale, Pleas of the Crown, vol. ii, ch. 30. (p) K. v. Gill, Annual 
 
 Reg., 1827, W'ills on Circumstantial Evid., 55. (q) Case mentioned in Benth. 
 
 Ev., B. V, ch. 3, § 5, and in Dumont's edition of ib., p. 148.
 
 1<M) CIRCUMSTANTIAL EVIDENCE. § 258- 
 
 § "258. Tlie object of these remarks is not to east discredit on 
 this branch of circumstantial proof, but to show its true value, and 
 the propriety of suspending an}' judgment suggested by the circum- 
 stance when it stands alone. This is peculiarly the case where the 
 circumstance is of a criminatory character. No doubt the bare 
 possibiUty of the evidence having been fabricated by some person 
 is not sufficient ; yet if the prisoner's previous character, the state- 
 ment he nnikes when apprehended, the opportunity for fabrication, 
 and other circumstances, coincide with the idea of his innocence, 
 he ought to be acquitted ; while corroborating circumstances of an 
 opposite tendency ought to lead to his conviction. It sometimes 
 happens that the most anxious care in judge and jury does not re- 
 sult in a true verdict. But such errors are not confined to cases of 
 circumstantial evidence. They are incident to all human judg- 
 ments : and the only rule that can be given in such cases is, that 
 wherever there is a reasonable doubt as to the conclusiveness of the 
 proof, the verdict should be on the side of mercy. 
 
 § 259. II. — Circumstantial proofs of the second class, namely, 
 those relating to man and the lower animals in their character of 
 living beings, are often important. For example, in every charge 
 of a crime requiring violence it must be shown that the accused 
 liad sufficient strength to commit it. This is peculiarly necessary 
 in those trials for rape where it is alleged that connection was ob- 
 tained by force, as eminent medical jurists are of opinion that a 
 healthy grown woman cannot be ravished by a man of ordinary 
 strength, unless she has been stunned or terrified into submission. 
 Many cases of supposed alibi (apart from mistakes as to identifica- 
 tion and time), resolve into the question whether the prisoner, by 
 running, riding, or travelhng in some other way, could have been 
 in both places within the time sworn to. Dick Turpin's famous 
 ride illustrates this kind of inquiry (r). 
 
 § 260. Again, in trials for murder, the direction of the cut or 
 stab is often important ; as where it had evidently been given by a 
 left-handed person, and the accused has that peculiarity (s). In 
 one case the mark of a bloody left hand on the left arm of one 
 found dead, showed that some other person had been on the spot 
 either at the time of the murder or shortly afterwards. The de- 
 ceased had been found in bed with her throat cut ; matters being 
 arranged to indicate that she had destroyed herself. She had been 
 murdered by persons who occupied the room adjoining, and forming 
 
 (r) See also the cases noted infra, ? 285, 290. («) Richardson, 178G, Bur- 
 
 nett, 524. infra. ? 285.
 
 §202. riRCUMRTAN'riAl. KVIDKXCK. llH 
 
 the only uccoss \f) Iht apailjnoil {(). A ruiaurkalih' case oi" tliis 
 kind occurred wliere the liody of a gentleman was i'oniid lying- in 
 a ditch near London, pierced completely thrungh with his own 
 sword ; his gloves and some other things having been laid on a 
 bank, to induce the belief that he liad committed suicide. But 
 there was no blood about the place, and none followed on drawing 
 out the sword. The body was discoloured and bruised ; and the 
 neck was so flexible that the chin could be turned from one shoulder 
 to the other. The man had been strangled (m). 
 
 § 261. Questions of succession, parentage, and the like, some- 
 times depend on inferences from the course of nature in the animal 
 kingdom. In the Douglas cause (v), for example, the strong like- 
 ness between the children and Sir Jolni and Lady Stewart was 
 dwelt upon by Lord ]\Ians field as an important fact in favour of tlie 
 relationship; while Lord Camden noticed that the children were 
 unlike the persons from whom it was averred they had been bought. 
 Strong evidence of this kind was adduced in a criminal trial in a 
 Circuit Court for child-murder, where the coincidence of the child 
 having six toes, and of some members of the prisoner's family hav- 
 ing the same conformation, went far to prove the maternity {iv). 
 So in an action of paternity brought by a woman of a white race 
 against a man of the same colour, the defender, although he ad- 
 mitted having had connexion with the pursuer, was assoilzied, be- 
 cause the child was a mulatto (x). 
 
 § 202, Cases of personal identity depend on a similar inference 
 from the ordinary course of nature. But, while an accurate ob- 
 server or an intimate acquaintance can almost always distinguish 
 one person from another, remarkable cases of mistaken identity 
 have occurred, in which individuals have been found to resendde 
 each other much more closely than those who have not studied 
 this subject would suppose (?/). In such cases an identification 
 
 (t) R. V. Norkott and Okcman, 1629, 14 St. Tr., 1324. (u) 1 Starkie, 572. 
 
 (v) Douglas cause, 17C9, 2 Pat. Ap. Ca., 144, 177 — See supra, \ 19. 
 
 \w) Laird, 1848, Arkl., 471. (j) Sinclair v. M'Artlmr, 12tli November 1812 
 
 (not rep.), Hume's Sess. Pap., Winter 1812-13, vol. i, No. 5, and noted in 2 Fraser, 8. 
 
 (if) Many instances of mistaken identity might be given. The following will suflice 
 for illustration: — The personal resemblance between Page, a notorious highwayman, 
 and Mr Frank Douglas, a man of fashion, was so strong, that one of some persons 
 robbed swore positively that Jlr Douglas was the man who connnitted the offence. Mr 
 Douglas narrowly escaped conviction, and tlie mystery was afterwards explained on the 
 apprehension of Page. — (Paris' Med. Jurisp., vol.i, p. 222, and vol. iii, p. 143; Gentle- 
 man's Magazine, vols. 27 and 28 ; Beck's Med. Jurisp., 408.) Baron Rolfe, in summing 
 up the evidence in Rush's case (Separ. Rep., p. 88), stated that he remembered an in-
 
 ll»2 
 
 CITtrUMSTAXTTAI. EVIDENCE § 262- 
 
 from moles, naevi maferni, cicatrices, and other peculiar marks, is 
 uf the greatest importance; for although persons are sometimes 
 
 stance of a man having been lianged on a mistaken identification. In 1797 two men 
 were convicted and hanged for the murder of Mr Syder Fryer, a lady who was in com- 
 pany with the deceased at the time of the murder having positively sworn to the iden- 
 tity" Several years afterwards the murder was conffessed by two men who were on the 
 scaffold for other crimes.— (R. v. Clinch and Macklay, 3 Paris and Fonblanque, 144 ; 
 Wills on Circ. Evid., 91.) A man identified as having committed a robbery proved an 
 alibi from the Court books, which showed that at the very time of the offence he was on 
 his trial for a similar crime, where he had also been mistaken for the real offender ; case 
 of Male, quoted (but with a wrong citation) in Benth. Ev., B. v, ch. 15, ? 4, note. A 
 person on whom a highway robbery had been committed swore positively that the 
 prisoner committed the act. He was ordered out of Court, and in the interval another 
 man, who awaited his trial on a capital charge, was placed beside the prisoner. The 
 witness was then brought back, and solemnly charged to be careful as to his answer ; 
 when on looking at the dock, and seeing two persons so much alike, he became 
 speechless and petrified with astonishment, and declined answering. The other man 
 was tried and executed for a dift'erent crime, and, a few hours before his execution, he 
 acknowledged that he had committed the robbery in question.— (3 Paris and Fon- 
 blanque, 143.) A most remarkable case on this head occurred before the Parliament 
 of Toulouse in 1560. Martin Guerre had been absent from his home for the space 
 of eight years. An adventurer named Arnauld Du Ti]li, who resembled him, formed 
 the design of taking his place, and actually succeeded so far as to be received by the 
 wife of Martin as her husband, and to take possession of his property. Children were 
 born to this union, and he lived three years in the family with four sisters and two 
 brothers-in-law of Martin, without their suspecting his identity. It became, however, 
 a subject of dispute. Several hundred witnesses were examined, and of these thirty or 
 forty swore he was the real Martin Guerre; nearly the same number declared that ho 
 was Arnauld Du Tilh ; while others deposed that the resemblance between the two men 
 was so great that they could not decide wliether the prisoner was an impostor or not. 
 The perplexity of the judges on this occasion was very great; but in spite of many 
 things that weakened his cause, they were on the point of deciding in favour of Arnauld, 
 when the arrival of the true Martin developed the deceit. Even when confronted, the 
 effrontery of Du Tilh was such as to lead many to doubt, until the brother and sisters 
 of the absent person fully recognised him; Causes Celebres de Pitaval, vol. i, p. 1. 
 The case is mentioned by Fodere (Med. Jur., vol. i, ch. 2), and Beck (Med. Jurisp., 
 405). Several other instances of mistakes in identity will be found in the books on 
 Medical Jurisprudence, and in the Cyclopedia of Practical Medicine, art. Identity. From 
 these instances it is evident that great caution is necessary in questions of identification ; 
 especially when the witness is not familiar with the appearance of the person he swear3 
 to. As Baron Eolfe remarked in his charge in Rush's case (1849, Sep. Rep., 88), 
 " There is no sort of evidence that ought to be more cautiously received, or that is more 
 often proved unfounded, than the identification of a person, where that person is a 
 stranger." In criminal cases especially, a conviction should never be rested on such 
 evidence without corroboration. Witnesses have sometimes sworn confidently to identi- 
 fication, where they had only seen the person in the light caused by the flash of a 
 pistol. M. Gineau, Professor of Experimental Physics in tlic Imperial College of France, 
 exposed the untrustworthiness of such proof by firing several primings of pistols in a 
 dark room. The light produced was strong but fuliginous, and so rajildly extinguished
 
 §20;"). CIRCUMSTANTIAL EVIDENCE. 193 
 
 ruimd wlio bear a strong i)orsoiial rcsomblance, a farther coincidence 
 in regard to such marks is in tlie higliest degree improbable. In 
 the trials of the Mannings (z) and Dr Webster the identification of 
 the murdered persons \vas completed by the evidence of the dentists 
 who had made their false teeth. 
 
 § 263. Important circumstantial proof may be derived from 
 personal habits. A detective officer, by pitching a nut into the 
 lap of a person in woman's clothes, discovered the disguise, as the 
 man brought his knees together instead of sjjreading out the dress 
 to catch the nut, as a woman would have done. Pliny (a) men- 
 tions an instance of two slave boys who resembled each other 
 closely being sold as twins ; but the imposture was discovered from 
 the one speaking a language of Asia, the other that of Transalpine 
 Gaul. The same kind of evidence was used by a local judge in 
 this country a few years ago, in a summary trial for stealing 
 pigeons, which the culprits declared they had reared. The sheriff 
 had the birds taken to a rising ground where they were allowed to 
 escape. They immediately flew directly to the dovecot from wliich 
 they had been stolen. 
 
 § 264. The phenomena which indicate parturition (A), puberty, 
 death (c), and survivorship ((7), and indeed most matters falling 
 under this class of circumstantial proofs, belong to the science of 
 medical jurisprudence. They are so fully treated by the writers 
 on that subject as not to require any detailed notice here. One 
 striking case may be mentioned (as it is not to be found in the 
 reports), wdiere the suspicion that a w^oman had been poisoned 
 arose from a dog having died suddenly, after licking up some stuff 
 thrown out of a vessel into which she had vomited. This circum- 
 stance led to an investigation; which resulted in the trial, con- 
 viction, and execution of her husband for murdering her by ar- 
 senic (e). 
 
 § 265. III. — As the state of mind in every sane man must 
 
 that it was imiiossiblo to identify tlie person firing. (Causes Celcbres par Mejan, vol. 
 iv, p. 329 ; Beck, Med. Jurisp., 407.) Of as little value is identification by one whose 
 faculties are obscured by age or disease. Jacob easily cheated Isaac into blessing him 
 instead of Esau. In may be added, that the means of identification may be destroyed 
 by many causes — as age, disease, distress. This subject is noticed by Beck, Fodere, and 
 other writers on Medical Jurisprudence. 
 
 (2) Infra, \ 280. (a) Pliny, Ilist. Natur., lib. vii, ch. 12. Several cases of 
 
 mistaken identity are collected by this author. (6) See this subject partly 
 
 noticed infra, in treating of the presuniptiou^a^cr est qucm nuptiac demons/ rant. 
 
 (c) See infra, chapter on the presumption of life. (<f) See infra, ib. 
 
 (e) Bennison, High Court of Justiciary, " Edinburgh Courant," 27th July 1850. 
 VOL. L N
 
 194 CIHCUMSTANTIAL EVIDENCE. § 2G5- 
 
 coincido "with his conscious acts, circnmstances indicating mental 
 phenomena (being the third class of circumstantial proofs) are 
 often of great importance. This is especially true in most criminal 
 causes, where the illegal intention and motive is of the essence of 
 the charge. Convincing evidence may also bo derived from the 
 manifestations of natural affection either in man or in the lower 
 animals. When Solomon decided between the two mothers, he 
 showed how simple and conclusive such proof might be. So in a 
 question of dog-stealing, the animal's recognition of his master 
 would be the best of all evidence. Mr Alison mentions a trial for 
 theft by housebreaking, where the fact that a fierce watch-dog on 
 the premises had not barked on the night when the house was en- 
 tered, contributed to fix the crime upon one who had been a ser- 
 vant in the house, and was familiar with the animal (/). Almost 
 as strong evidence sometimes flows from the second nature which 
 habit forms; as in the case of deserters, who have been detected by 
 their mechanical obedience to the sudden word of command. 
 
 But the circumstantial evidence of this nature adduced in Courts 
 of law is seldom so simple or so satisfactory; and therefore it re- 
 quires a more detailed examination. 
 
 § 266. Commencing with evidence of motive, we observe that 
 the commission of some crimes would gratify the passions of any 
 man as well as of the accused. But many crimes can gratify only 
 a few, perhaps only one man; and they are inexplicable without 
 supposing the existence of a motive incident to the circumstances 
 and character of some individual. Accordingly, while proof of a 
 special motive is unnecessary and generally impossible in trials for 
 theft, robbery, and rape, it is almost indispensable in trials for mur- 
 der, wilful fireraising, perjury, and the like ; for without it the con- 
 duct of the supposed criminal would want the coherence of a sane 
 man's actions (g). No doubt there are cases where we are forced 
 to believe that the prisoner is guilty, although we cannot discover 
 or conceive any motive for his act. But such cases, which seldom 
 occur in practice, leave room for a defence of insanity. 
 
 § 267. Sometimes proof of one crime shows the motive to an- 
 other. Tins has frequently occurred in compound charges of theft 
 
 (/) Young, 1828, 1 AL, 323. (ff) But a special motive is sometimes proved 
 
 in cases of the first class in theft of a key or of a box of little value, where the object is 
 to obtain jewels, or a forged deed which the fabricator wishes to destroy. A remarkable 
 case on this head occurred in the trial of Eraser, 1847, Arkley, 329, where the prisoner, 
 in order to revenge himself on a certain man, had personified him one night, and in 
 that character had connection with the man's wife. The prisoner was convicted.
 
 I 
 
 § 270. CIRCUMSTANTFAT, EVIDENCE. 195 
 
 or robbery and murder (//). Fn llic trial ol' Leitli for murdering his 
 wife, and in several otlier cases, tlie pri.soner's motive was to marry 
 a woman with wIkjiii lie had been carrying on an adulterous inter- 
 course. The tliirty murders of Burke and Hare were perpetrated 
 in order to sell the l)odies of their victims to T)y Knox. Murder 
 has also sometimes been committed to get rid of a civil debt, as in 
 the cases of Kush and Dr Webster. And the most common motive 
 in crimes of wilful fireraising is to recover the sum insured {{). 
 
 § '2G8. But while evidence of motive will give harmony and 
 conclusiveness to a full circumstantial proof, it should be received 
 with caution. The probability as to which one of a number of 
 persons committed a certain crime, depends far less on the compara- 
 tive advantages it would bring to each of them, than on their indi- 
 vidual characters and circumstances. A murder which some men 
 would commit for a florin, or to gi'atify national hate, has proliably 
 never for a moment entered the mind of the heir to whom it would 
 bring a dukedom. 
 
 § 2C9. Evidence that the motive has produced purpose or in- 
 tention is much Uiore important, but must also be examined with 
 care. Mere threats often spring from temporary irritation without 
 deep-rooted hostility. They indicate a rash and unguarded, rather 
 than a determinedly malignant, character; and the very utterance 
 of them, as every one well knows, tends to defeat their execution. 
 The man who has resolved on a crime, is more apt to keep his pur- 
 pose to himself, or to confide it to an associate under the seal of 
 secrecy. Even the most wary, however, sometimes let their wicked 
 purposes peep out accidently in the freedom of companionship, or 
 the weakness of drunken confidence. When such unguarded hints, 
 dark and apparently unmeaning at the time, coincide with the 
 subsequent tokens of guilt, they are strong cords in the net of crim- 
 inating e\'idence. 
 
 § 270. The strongest proof of intention is preparation of the 
 means for committing the crime. This, if done secretly, if the 
 means would not suit any other purpose i\»r which the person is 
 likely to have procured them, or if a false purpose has been assigned 
 for them, is the strongest of antecedent circumstances. It shows 
 
 (h) As in Courvoiser's case — case of the Mannings, infra, § 286. 
 
 [i) In the trial of William Smith, 12th April 1854, for the murder of William 
 M'Donald, the alleged motive was to recover the proceeds of policies of insurance 
 opened by him on M'Donald 's life, on which he had not an insurable interest. This 
 part of the case was proved, nlong with other circumstances of grave suspicion. The 
 charge was found not proven. 
 
 N 2
 
 196 CIRCUMSTANTIAL EVIDENCE. § 270- 
 
 uot only deep-seated intention, ])nt execution begun; so tliat if the 
 crime has been committed with the instruments thus provided by 
 the prisoner, it will not require a strong proof from other quarters 
 to cou\dct him. Sometimes the murderer's intention appears from 
 his having thrown out false statements as to his victim's health, 
 with the view of preparing the acquaintances for the catastrophe. 
 And there have been cases where, in order to divert suspicion from 
 himself, one has simulated kindness towards his intended victim. 
 
 § 271. As opposed to evil motive and intention, is the previous 
 good character of the accused, and his kindness, when not capricious 
 or simulated, towards the person injured. Such circumstances, as 
 they make guilt improbable a priori, are entitled to weight in ex- 
 culpation. Yet it is a trite remark, that persons of unblemished 
 reputation have committed the most heinous crimes ; and that evil 
 impulses and fits of moral aberration are found more or less in all 
 mankind. Besides, the desire of preserving character and status is 
 incident to the possession of them ; and has prompted not only the 
 most extensive forgeries and embezzlements, but even murders (A-). 
 
 § 272. With regard to all indications of intention, however, it 
 will be observed that, although they raise an a priori probability 
 that crime may be committed, and are most important when the 
 commission of a crime by some person has been proved, they afford 
 no proof of the crime itself. Such evidence ought never to be re- 
 garded, unless it be established that the crime to which the inten- 
 tion points has been perpetrated. It is also true that the means 
 whicli the prisoner used for a certain purpose may have produced 
 much more serious results than he designed; as, for example, where 
 one intending only to hurt another gives him a mortal blow, or in- 
 tending maliciously to burn articles within a house sets it on fire, 
 or when medicines given to a woman without her knowledge to 
 procure abortion cause death. In such cases it is not a sufficient 
 ground for acquitting of the greater crime that the proved intention 
 corresponded with a crime less aggravated ; for, if the greater of- 
 fence was the natural consequence of the means employed, the 
 " reckless and corrupt disregard of the result constitutes the dole 
 or malice, the depraved and wicked purpose " which the law holds 
 to be essential to the greater crime (I). Accordingly the accused, 
 in order to escape that consequence, must show not only that his 
 intention was to commit the slighter offence, but that the means 
 which he employed were only commensurate with such an intention. 
 
 (k) As in Eichardson, 1786, Burnett, 524, infra— Dt Webster's case, Sep. report- 
 Rush's case, Sep. report. [1) 1 Hume, 256. et seq.
 
 § 274. CIKCUMSTAN'J'IAL EVIDENCE. V.>~ 
 
 § 273. Some jurists have considered that in charges of the 
 more aggravated crimes, their enormity is a reason for convicting 
 on incomplete proof, under the old pernicious maxim, in atrocissimis 
 leviorcs conjecturae svfficimit ct licet Judici jura transfjredi. With 
 more reason in modern times tlie same circumstance is often pleaded 
 in favour of the accused. Its proper bearing is well stated by Mr 
 Starkie in these words : " When any doubt exists as to the coijncs 
 delicti, whether any crime has been committed, the very reverse of 
 the above maxim is true; the more atrocious the nature of the crime 
 is, the more repugnunt it is to tlie ct)mmon feelings of human na- 
 ture, the more improbable it is that it has l)een perpetrated at all. 
 But when it has once been clearly established that a heinous crime 
 has l)een committed, and tlie only (question is the perpetrator, it is 
 manifest that the atrocity of the crime in the abstract raises no 
 probability either for or against the accused, although under parti- 
 cular circumstances it may be a matter of great importance. Thus 
 on a charge of infanticide, where there is a doubt whether the child 
 was destroyed by design or by accident during a secret delivery, the 
 very atrocity of the offence raises a strong degree of probability in 
 favour of the latter conclusion. On the other hand, were it clear 
 from the circumstance under which a body was found that the party 
 had been murdered, then, the corpus delicti being established, the 
 atrocity of the offence would in the abstract raise no probability 
 either in favour or against any individual. But if, in tlie particular 
 instance, the question were, whether the son of the deceased or a 
 stranger was the guilty agent, then a probability from the particular 
 circumstances would operate in favour of the son" (»i). 
 
 § 274. Considerable light is often derived from the correspon- 
 dence or antagonism between the offence and the character or habits 
 of the accused ; as in skilful forgeries, and crimes which indicate 
 daring or ingenuity, or which required acquaintance with the pre- 
 mises where they were committed, or with the habits of the person 
 injured. Passing without remark from circumstances so ob^^ous, a 
 word or two may be said of the conduct of the accused person after 
 the crime has been committed. Fear or attempts at flight on the 
 part of one directly charged with a serious crime are of little weight 
 as indications of guilt. Chief-Justice Shaw has well observed, in 
 his charge to tlie jury in Dr Webster's trial for the murder of Dr 
 Parkman, " Such are the various temperaments of men, and so niie 
 
 (m) 1 Stuvkio. 550, niite. See also IViitli. Ev., R. v. ili. 17 — \\'\]h on ('ire Ev. 
 157.
 
 198 CIRCUMSTANTIAL EVIDENCE. § 2^4- 
 
 tlic occurreuce of the sudden arrest of a person upon the charge of 
 a crime so heinous, that who of us can say how an innocent or a 
 guilty man ought or would be likely to act in such a case ? or that 
 he was too much or too little moved for an innocent man ? Have 
 you any experience that an innocent man, stunned under the mere 
 imjiutation of such a charge, wdll always appear calm and collect- 
 ed r* or that a guilty man, w^ho by knowledge of his danger might 
 be somewhat braced up for the consequences, would always appear 
 agitated, or the reverse (%) ?" The fearless composure of Mrs Man- 
 ning (o) on her apprehension might have been mistaken for the 
 effect of conscious innocence ; as the flight of the accused in another 
 case was one of the circumstances which led to his conviction and 
 execution for a murder which it was afterwards proved he did not 
 commit (^3). 
 
 § 275. Fear, however, will generally indicate guilt when it is 
 prompted by some remark immaterial in itself, but latently con- 
 nected with the circumstances of the crime. A striking instance 
 of this occurred in a case where a marine serving on board a ship 
 was apprehended on a charge of a murder which had been commit- 
 ted four years previously. Without any express allusions being 
 made to the crime, he was asked where he had been about three 
 years before, to which he answered that he had been employed in 
 London as a day labourer. He was then asked where he had been 
 employed that time four years, on which he immediately turned 
 pale, and would have fainted had not water been administered to 
 him. That so striking an effect should have followed from so 
 simple a question, w^hen the one preceding it produced no similar 
 emotion, showed a secret cause of fear pointed to the date of the 
 murder (r). 
 
 § 276. In the same way falsehoods or equivocations by accused 
 persons may be important when the facts to which they refer are 
 only latently connected T\dth the crime. K the connection is ob- 
 vious, such circumstances afford little or no indication of criminali- 
 ty; for a man must have both candour and courage to make admis- 
 sions which may subject him to the vexation, inconvenience, and 
 risk of a criminal prosecution. 
 
 § 277. Attempts to fabricate and suppress evidence and to 
 
 [n] Report by G. Bemis, p. 480. See this point fully discussed in Benth. Ev., B. v, 
 ch. 8, et seq. (p) Infra, § 286. {p) Coleman's case, 1748, "Wills, 68, 71 ; 
 
 citin.e 1 Remarkable Trials, 162, 172, and 4 ib., 344. (r) Wills, 69 ; citing 6 
 
 Celebrated Trials, 19. The prisoner was tried and convicted.
 
 I 
 
 § 278. CIltCUMSTANTlAl. KVIDExNCE. l^D 
 
 subboru wilueissos avo much more forcible indications of guilt (s) ; 
 for they show a consciousness that the undisguised truth is not 
 consistent with the party's innocence. They also cause the rest 
 of his evidence to be justly viewed with suspicion and distmst ; 
 omnia presumuntur contra spoliatorem. For the same reason at- 
 tempts to destroy human remains — as in the cases of Dr Webster 
 and the Mannings (0 — can seldom bo explained on any hypothesis 
 but that of murder. Yet some persons are so habituated to cun- 
 ning and crooked ways, that they will rather call in the aid of 
 falsehood, than leave truth and a righteous cause to their native 
 strength. Such expedients, which are sometimes resorted to by a 
 party's advisers or officious friends without his knowledge, are as 
 dangerous as they are reprehensible («). 
 
 § 278. The general nature of the circumstances which compose 
 this kind of ]»roofs having been thus indicated, they will now^ be 
 considered as they are found associated in practice. 
 
 Circumstantial evidence may produce every possible degree of 
 conviction, from a mere turn in the balance of probabilities up to 
 moral certitude. It often embraces facts which, viewed indepen- 
 dently, raise slight and doubtful inferences; but which, when united, 
 compel unhesitating belief. Indeed, it is the cumulative force of 
 the whole circumstances, their mutual interlacing and consistency, 
 and their unison in pointing to the same result, which constitute 
 the characteristic value of this kind of evidence. The more nu- 
 merous, therefore, the circumstances which lead to the same con- 
 clusion, and the w'ider the sphere in point of time, and space, and 
 persons from which they are taken, the greater their united force 
 becomes ; as the more rays a lens can collect into one small focus, 
 the greater their combined intensity. A case oi circumstantial 
 proof is often compared to a chain, — but not correctly, since a 
 chain breaks if there is a single weak link. It is rather Hke a 
 
 (s) As in Douellan's case, reported by Guruey, p. 54 — R. Doniicll's case, 1817, re- 
 ported by Fraser, p. 171 — Wills, 73, et seq. — Courvoisier's case, 1840, Uiirrated by Wills, 
 241. {t) Infra, \ 286. Some cases of this kind are mentioned by Wills, 77, 165. 
 
 (m) See Burnett, 532—1 Starkie, 564 — Wills, 82. In the Douglas cause tlie fabrica- 
 tion by Sir Jai<. Stewart of Iclters from Lu Marre the surgeon put the right side of the 
 case in the greatest jeopardy ; see 2 Evan's Pothier, 337. And in a trial of a man in 
 England for murdering his niece, one of the leading circumstaucos which led to his 
 conviction and execution was, tliat being admonisheil to bring' her forward at the iiext 
 assizes, ho produced another child, and the fraud was detected. The truth was, that 
 the niece had fled from his house in consciiuence of i^ome severe correction he lind ad- 
 ministered to her ; Coke, Third In.stitutes, cap. 104.
 
 200 CIRCUMSTANTIAL EVIDENCE. § 278- 
 
 "rope made up of many slender filaments twisted together; for it 
 has strength more than sufficient to bear the stress laid upon it, 
 though no one of the filaments of which it is composed would be 
 sufficient for that purpose" (a?). 
 
 § 279. Again, the strength of such a proof docs not depend on 
 the intrinsic importance of the component circumstances, or on the 
 manifestness of the connection between a few broad facts and the 
 result. Paley has well observed, that on the contrary, broad, ob- 
 vious, and explicit agreements prove little, for they are easily forged; 
 whereas, when some of the coincidences are minute, circuitous, or 
 oblique, their ver}' indirectness and subtilty gives them force, be- 
 cause they are farther removed from the risk of successful fabrica- 
 tion (?/). The most convincing circumstantial proofs are those in 
 which minute coincidences are united and interlaced with such as 
 are obvious ; the one set excluding risk of design, the other rivet- 
 ting the whole proof to its appropriate inference. 
 
 § 280. Much has been said as to the comparative value of direct 
 and circumstantial evidence. That in the abstract'; direct evidence 
 is superior cannot be disputed, for it involves only a question of 
 belief, in which the risk of misdecision is limited to falsehood or 
 error in the witnesses ; whereas circumstantial evidence involves 
 both belief and judgment, with the double risk of falsehood in the 
 witnesses and error in the judge or jury. On the other hand, cir- 
 cumstantial proof is often far more trustworthy than direct, as the 
 two occur in practice ; for although false testimony or forged writ- 
 ings may pass undetected when they are limited to a few simple 
 facts, it is almost impossible to fabricate successfully a complete 
 case of circumstantial proof. Accordingly, direct evidence is pre- 
 ferable to circumstantial where the witnesses can be implicitly be- 
 lieved ; whereas circumstantial evidence has the superiority in be- 
 ing more free from attempts at fabrication, and almost entirely be- 
 yond the risk of undetected concoction (z). Juries have often 
 dra'WTi this distinction by convicting on circimistantial evidence in 
 the face of a direct proof of alibi sworn to by the prisoner's friends. 
 No doubt circumstantial evidence has sometimes produced erroneous 
 vordicts, followed liy tlie extreme penalty of the law. But this 
 
 (x) Reid on the Intellectual Powers, Essay vii, ch. 3 (of Probable Reasoning). See 
 infra, g 291, (4), as to circumstantial proof resembling a chain. (y) Horae 
 
 Paulinae, ch. 1. — See also Whatoly's Rhetoric, part i, ch. 2, § 4. This is strikingly il- 
 lustrated by the case noted wfra, 'i 288. (z) On the comparative value of direct 
 and circumstantial proof, see Benth. .Jud. Ev., B. v, ch. 15, ? 4 (vol. iii, p. 248, et scq.) 
 —2 Hume, 385— Burnett, 523— Tait, 440— Boll's Law Diot., voce "Circumstantial Evi- 
 dence " — Willp, 2(i, et seq.
 
 §281. CIRCUMSTANTIAL KVIDENCE. 201 
 
 may also hv said uf the least ubjcctinualjlc dI' all uvidciicc, the deli- 
 berate and clearly proved confession of the accused («); and there 
 is good ground for believing, with the writer of an able and in- 
 teresting treatise on this subject (b), that more mistaken sentences 
 have followed upon false and mistaken direct testimony than upon 
 erroneous inferences drawn from circumstantial evidence. 
 
 § 281. With regard to the sufficiency of circumstantial proofs, 
 there is manifestly a great difference between civil and criminal 
 causes. In most civil trials, uidess delict is involved, the compet- 
 ing parties are on an equal footing, and he ought to win who has 
 the preponderance, however slight, of probabilities in his favour (c). 
 But in criminal cases the verdict ought always to be on the side of 
 mercy, unless the jury are perfectly satisfied of the prisoner's guilt. 
 It is not enough that his guilt be a rational and probable inference, 
 as well as the most probable of several inferences, from the circum- 
 stances. It must also bo the only rational hypothesis which they 
 will bear (d). The evidence must be so " clear, satisfactory, and 
 conclusive, as to leave no rational doul)t in the minds of the jury 
 that the prisoner is giiilty " (e). " What, then, is reasonable doubt ? 
 
 (a) Cases noted in Wills, G3, et seg.— Taylor, 580, 1. — See the chapters on confessions, 
 infra. (6) Wills, 24G. (c) Even among purely civil cases there is a dif- 
 
 ference in the comparative sufficiency of circumstantial proofs. Lord Stair observes 
 (4, 45, y), '-Every probability is not probative, nor deserves the name of presumption, 
 and frequently many presumptions do concur to make up that probation ; and tliere 
 may be many opposite probabilities from different consequences and considerations, so 
 that if the prevalence be not great it will not infer against a possessor the loss of his 
 possession, much less against a proprietor the loss of his property ; nor will it infer an 
 obligation against a party that is otherwise free. But if the question be about attain- 
 ing the possession of that which neither party possesses, but craves to recover as their 
 prior possession, or if the point of right be dubious, the prevalence of the presumptions, 
 though far less than in the former cases, may infer sufficient probation." 
 
 (d) In this way, as Mr Starkie observes (vol. i, p. 560, note), circumstantial proof is 
 analogous to the reductio ad absunlttm in geometry, the truth of the proposition being 
 attained in each by disproving every other hypothesis ; in the one to an absolute and 
 mathematical, in the other to a moral certainty. In the geometrical proof, however, 
 every possible hyjiothesis (and there are generally only two) may be known, whereas in 
 the circumstantial proof the known hypothesis are much more numerous, and it is pos- 
 sible that some existing hypothesis has escaped observation. (e) Charge of 
 Lord Justice-Clerk Boylo in Hunter and Others (Glasgow Cotton Spinners' case), 1838; 
 Swinton's Kcport, 3G7. See alse Lord Meadowbank's charge in the trial of Humphreys, 
 where his Lordship observed (Swinton's Keport, p. 353), " Should you doubt of tlie evi- 
 dence being sufllcicnt to bring the charges home to the prisoner, you have to give him 
 the full benefit of tliut doubt. But to entitle you to do so, these doubts must be well 
 considered, and the circumstances on which they are founded deliberately weighed. To 
 doubts which are not reasonable you have no right whatsoever to yield. Your duty is 
 to consider what is the rational and r.-asonubU' inference to be drawn from the whole
 
 20"2 CIECUMSTANTIAL EVIDENCE. § 281- 
 
 It is a term often used, probably pretty well understood, but not 
 easily defined. It is not mere possible doubt ; because everything 
 relating to human affairs and depending on moral evidence is open 
 to some possible or imaginary doubt. It is that state of the case 
 which, after the entire comparision and consideration of all the evi- 
 dence, leaves the minds of the jury in that condition, that they can- 
 not say they feel an abiding conviction, to a moral certainty, of the 
 truth of the charge" (/). 
 
 § 282. It follows from these principles that if the evidence 
 merely proves that the crime in issue was committed by one of a 
 certain number of persons, without showing beyond a reasonable 
 doubt which was the individual perpetrator, they ought all to be 
 acquitted ; for it is better that ninety-nine guilty should escape than 
 that one innocent man should suffer. The counsel for the Mannings 
 tried hard to bring the case for the prosecution to this dilemma ; 
 each of them admitting that the crime must have been committed 
 by one or other of the prisoners, but urging that there was not 
 proof to fix it on his client. The result, as often happens in such 
 cases, was that both were convicted as joint perpetrators of the 
 crime. 
 
 The application of the foregoing remarks will be best seen from 
 a few illustrations. 
 
 § 283. In the trial of John Downie and Alexander Milne for 
 theft in 1824 (cf), the facts were, that a carpenter's workshop in 
 Aberdeen was broken into on a particular night and some work- 
 men's tools were carried off from it. On the same night, the count- 
 ing houses of Messrs Davidson at Foot-dee, and of Messrs Catto & 
 Co., on the Links of Aberdeen, were also broken into, and goods 
 and money to a considerable extent were stolen from them. The 
 prisoners were met by two policemen at seven in the following 
 morning in one of the streets of Aberdeen, at a distance from all 
 of the places of depredation. Immediately on seeing the officers 
 they began to run, and being pursued and taken, there was found 
 
 circumstances; in short, whether it be possible to explain the circumstances upon 
 grounds consistent with the innocence of the party, or whether, on the contrary, they 
 do not necessarily lead to a result directly the reverse." In E. v. Hodges, 2 Lewins' C. 
 C, 227, Mr Baron Alderson observed, that to enable llic jury to bring in a verdict of 
 guilty, it was necessary not only that it should be a rational conviction, but that it 
 should be the only rational conviction which the circumstances would enable tliem to 
 draw. (/) Charge of Ch.-Just. Shaw in Dr Webster's case, Bemis' Report, 
 
 p. 470. See also Burnett, 524 — 1 Starkie. 577 — Wills, 149— Bell's Diet., td supra, 
 (ff) 1 Al., ?A'i.
 
 § 284. ClliCUMSTANTIAL EVIDENCE. 203 
 
 ill tii(j possession of each ul' llieiu a cousidurablc quantit} uf the 
 articles taken from Catto & Co.'s liouse, ])ut none of the things 
 taken eitlier from the carpenter's slioji or from Davidsoi- s. But in 
 Catto & Co/s wareJiouse were found a l>ro\vn coat and other articles 
 which had come from Davidson's, and which had not been there 
 the previous evening when the shop was locked up ; while in 
 Davidson's premises were found the tools which had been abstracted 
 from the carpenter's. Thus, the recent possession of the articles 
 stolen from Catto & Co.'s, the early hour when the panels had them 
 in their hands, their attempt to escape, and their failure to account 
 for their possession, proved that they were the depredators in that 
 warehouse ; the fact of the articles taken from Davidson's having 
 been left there connected them with that ju-ior housebreaking; 
 while, again, the tools taken from the carpenter's shop, and found 
 in Davidson's, identified the persons who broke into that last house 
 with those who committed the original theft at the carpenter's. 
 The result was, that both the panels were convicted of all the 
 thefts. 
 
 § 284. A similar set of circumstances occurred in the trial of 
 Charles Bowman in 1826 (h). This man was accused of no fewer 
 than nine different acts of theft by housebreaking, committed in 
 and around Aberdeen, at various times during the summer of 1825 
 and winter 1825-26. He had been living an industrious and ap- 
 parently regular life as a carter, and no suspicion had been awakened 
 against him until one occasion when, some of the stolen articles 
 having been discovered in a broker's shop, and traced to him, his 
 premises were searched, and some articles from all the houses 
 broken open, along with an immense mass of other goods, evidently 
 stolen, were found in a large chest, and concealed about various 
 parts of the house. Their number, variety, and the places where 
 they were found, were quite sufficient to convict him of reset ; but, 
 as they were discovered at the distance of many months from the 
 times when the various thefts had been committed, the difficulty 
 was how to prove he was the original depredator. 
 
 The charges selected for trial were five in number, connected 
 with each other as nearly as possible in point of time. In none of 
 them was the prisoner identified as the person who had broken into 
 the houses, although the thief had been seen, and more than once 
 fired at. But in all 1bo first four houses which had been entered 
 were discovered some of the articles tnken from the others ; and in 
 
 (A) 1 Al., 314.
 
 204 CIRCUMSTANTIAL EVIDENCE. § 284- 
 
 the prisoners custody were found some articles taken from tlicm 
 all, while three of the windows broken bore the marks of an instru- 
 ment which coincided exactly with a chisel left in the last house. 
 Two days after the housebreaking of that house, the owner's watch 
 was shown by the prisoner to a shopkeeper in Old IMeldrum, near 
 Aberdeen, to whom he afterwards sold it. 
 
 It was thus manifest that the whole five housebreakings had 
 been committed by the same person, and on a uniform plan. The 
 hypothesis that the prisoner had received the goods from the thief 
 without having either stolen them or known them to be stolen, was 
 excluded by the number and nature of the goods and the places 
 where they were secreted ; while the possession of the watch, being 
 sufiiciently recent to infer theft of it, and the absence of any trace 
 of one from whom the prisoner could have received the goods, ex- 
 cluded the idea that he was a resetter. The jury consequently 
 found him guilty of all the five charges of housebreaking ; and the 
 Court (Lords Pitmilly and Alio way) approved of •the verdict. 
 
 § 285. In Autumn 1786, a young woman who lived with her 
 parents in a remote district was one da}^ left alone in the cottage, 
 her parents having gone out to harvest-work. On their return 
 home, a little after mid-day, they found her murdered, with her 
 throat cut in a most shocking manner. The circumstances in which 
 she was found, her character, and the appearance of the wound, all 
 concurred in excluding any idea of suicide, and making it certain 
 that she had been murdered. 
 
 The post-mortem examination satisfied the medical witnesses 
 that the wound had been inflicted by a sharp instrument held in 
 the murderer's left hand. The deceased was also found to have 
 been some months gone with child. On examining the ground 
 about the cottage, there were discovered the footsteps seemingly of 
 a person who had l)ccn running hastily from the cottage, and by an 
 indirect road, through a quagmire or bog in which there were step- 
 ping-stones. It appeared, however, that the person in his haste 
 and confusion had slipped his foot and stept into the mire, by which 
 he must have been wet nearly to the middle of the leg. There 
 were discovered, also, along the track of the footsteps and at certain 
 intervals, drops of blood ; and on a small gateway near the cottage, 
 and in the line of the footsteps, some marks as of a bloody liand. 
 Not the slightest suspicion at this time attached to any particular 
 person as the murderer ; nor was it even suspected who might lic 
 the father of the child of which the girl was pregnant. 
 
 The concourse of persons at the funeral having afforded a good
 
 §285. CIRCUMSTAXTIAl. EVIDENCE. 2()r> 
 
 o])l)urtiiiiit3' Inr ((iiiijiariug tlicir sliues witli tlic ioutpriiils, an ux- 
 iiiniiuitiuu tuok place, during wliicli tlic shoes of oue young man 
 were found to correspond exactly to the impressions in dimensions, 
 shape of the foot, and form of the sole, which was newly mended 
 and had large hobnails in a certain number and position, and fitting 
 to the marks in the footprints. The lad, on being asked where he 
 had been the day the deceased was murdered, re[)lied, seemingly 
 without embarrassment, that he had been all that day employed at 
 his master's work ; a statemi^nt which his master and fellow-ser- 
 vants, who were present, confirmed. As tliis Avent so far to remove 
 suspicion, a warrant of conmiittal was not then granted ; but, some 
 farther sus])icious circumstances occurring a few days afterwards, 
 he was apprehended. 
 
 On his examination he acknowledged that he was left-handed; 
 and some scratches being observed on his cheek, he said he had got 
 them when pulling nuts in a wood a few days before. But he ad- 
 hered to his statement that he had been on the day of the murder 
 employed constantly at his master's work, at some distance from 
 the place where the deceased resided. His fellow-servants, how- 
 ever, recollected that on the forenoon of that day, when they were 
 employed with tlic ])risoner driving their master's carts near a cer- 
 tain wood, he saiil he must run to the smith's shop (which was on 
 the way to the deceased's cottage), but would be back in a short 
 time ; and that he accordingly left his cart under their charge for 
 that purpose. It was then proved that he had called at the smith's 
 shop on the pretence of wanting something which it did not appear 
 he had any occasion for ; and a young girl, who happened to be 
 about a hundred yards from the deceased's cottage, saw a person 
 corresponding in appearance and dress to the prisoner, running 
 hastily towards the cottage, but without having seen him return ; 
 from which it was probable he had gone on the other side of a 
 small eminence, where the footsteps referred to were traced. The 
 time when this person was seen by the girl corresponded with the 
 time when the prisoner had been away from his fellow-servants. 
 On his return, after an absence of half an hour (the time being fixed 
 by one of the servants having looked at his watch), they remarked 
 that he had been longer away than he said he would ; to which 
 he replied, that he had stopped in the wood to gather some nuts. 
 They observed at this time one of his stockings wet and soiled, as 
 if he had stepped iiilo a jiuddle ; on which they asked him where 
 he had been. He answered he had stepped into a certain marsh; 
 on which his fellow-servants observed, " that he must have been
 
 20G CIRCUMSTANTIAL EVIDENCE. § 285- 
 
 either drunk or mad if he had stepped into that marsh," as there 
 \\'as a foot-path along the side of it. It appeared, l^y comparing 
 the time he was absent with the distance of the cottage from the 
 place where he had loft his fellow-servants, that he might have 
 gone there, committed the murder, and returned to them in the in- 
 terval. It was then proved that the stockings he had worn that 
 day had been found concealed in the thatch of the apartment where 
 he slept, and appeared to be much soiled and to have some drops of 
 blood on them. The blood he first accounted for by saying that 
 his nose had been bleeding some days before ; but on it being ob- 
 served that he had worn other stockings on that day, he said that 
 he had assisted at bleeding a horse when he wore these stockings. 
 It was proved, however, that he had "not assisted, but had stood on 
 that occasion at such a distance that none of the blood could have 
 reached him. The mud upon the stockings was also found on ex- 
 amination to correspond precisel}- with that adjoining to the cottage, 
 and which was of a very peculiar kind, no other mud of the kind 
 being found in the neighbourhood. 
 
 It then appeared that the prisoner had been acquainted with the 
 deceased (who was considered to be weak in intellect), and liad on 
 one occasion been seen with her in a wood, in circumstances that 
 led to suspicion that he had had criminal connection with her ; and 
 that on being gibed wdtli having such intercourse with one in her 
 situation, he seemed much ashamed and hurt. It was proved far- 
 ther, by the person who sat next to him when the shoes were 
 measuring, that he trembled, much, and seemed a good deal agitated; 
 and that, in the interval between that time and his being appre- 
 hended, he had been advised to fly, when his answer was, " where 
 can I fly to." 
 
 On the other hand, evidence was brought to show that, about 
 the time of the murder, a boat's crew from Ireland had landed on 
 the coast, near to the dwelling of the deceased, and it was said that 
 some of them might have committed the murder. But no conceiv- 
 able motive could be discovered for their doing so, and there was no 
 appearance of any of the cottages having been plundered. The jury 
 by a great plurality of voices found the prisoner guilty. And in the 
 interval before his execution, he confessed he committed the mur- 
 der to hide his shame, knowing the girl was with child to him {i). 
 
 The only weak part of this case was in the proof of motive. 
 But the suspicion of a criminal connection was sufficient to indicate 
 
 (i) RicLardson, 1786, Burnett. 524.
 
 ^28G. CIRCUMSTANTIAL EVIDENCE. 207 
 
 one, ami coinp^'to a circiuiistaiiticil proof of a most conclusive 
 character. 
 
 § 280. An afle(iualo motive was fully proved in the case of the 
 Mannings ; in which the rest of tlie evidence also was very con- 
 clusive. 
 
 On 17th August 1849, after Tatrick O'Connor, a ganger in the 
 customs, had been missing for several days, a body, identified as 
 his, was found in a hole under the flags in the back-kitchen of a 
 house in Berniondsey, naked, iml)ed(led in lime, and having the legs 
 bound back witli strong cord to the haunches. The head and skull 
 were frightfully mangled, the skull being not only fractured in six- 
 teen places, but also showing a bullet hole, from which a ball was 
 extracted. There could be no doul)t tliat O'C'onner had been mur- 
 dered ; and suspicion immediately fell on tlie jx-i'sc'i^s who had 
 occupied the house, one Manning and his wife, with whom the de- 
 ceased had been on intimate terms, but who liad suddenly disap- 
 peared three days before the body was discovered. They were both 
 tried for the crime on 25th October 1849 (/.•)■ 
 
 From medical evidence it appeared that about a week had 
 elapsed between death and the discovery of the remains ; so that 
 the investigation as to the immediate res gestae was narrowed to 
 the 9th or 10th of August. 0' Conner had left home as usual on 
 the morning of the 9th ; and at a few minutes after five on the 
 afternoon of that day, he was seen about 150 yards from the Man- 
 ning's house, and walking in that direction. That was the last 
 occasion on which he was seen alive. 
 
 The criminal nature of the intimacy between the deceased and 
 Mrs Manning was manifest ; and there was good ground to believe 
 that her husband was aware of it. She had been in the habit of 
 visiting O'Connor in liis lodgings, and remaining for a long time 
 closeted with him ; and on one of these occasions (the Friday nearly 
 a week before the murder) they were heard conversing about rail- 
 way scrip, Mrs Manning having consulted him as to what shares 
 she ought to buy. She had opportunities on these occasions of 
 kno^^^ng where he kept his cash, and scrip for railway shares, which 
 he had to a large amount. She was aware that O'Conner possessed 
 considerable funds ; and her husband's knowledge of the same fact 
 was proved ; while one witness stated that Manning told him his 
 mfe knew that O'Connor had made a will in her favour. 
 
 (Jt) The following note of the case is taken from the " Times " of 26th and 27th 
 October 1849.
 
 208 CIRCUMSTANTIAL EVIDENCE. § 286- 
 
 It was then proved that a medical student who had lodged in 
 the house for some time before the 28th July (when he left in con- 
 sequence of the prisoners stating that they meant to go out of 
 town), had repeatedly been spoken to by Manning about the efi'ect 
 of Avounds in the head, and as to what part of the head a fatal blow 
 could be struck, and about shooting with an air-gun. Manning 
 had also asked him what kind of drugs would best produce stupe- 
 faction, or partial intoxication, so as to get a person to " put his 
 hand to paper ; " and this conversation had occurred immediately 
 after Manning had been speaking about O'Connor, and his having 
 considerable sums of money. The male prisoner had also, after 
 seeing a wax figure of Eush at an exhibition, asked this mtness 
 whether a murderer would go to heaven. 
 
 On the 25th of July the male prisoner ordered a crowbar and a 
 quantity of lime, and when asked whether he wished grey or white 
 lime, answered, he wished the kind which would burn quickest. 
 The lime was delivered at the house on the same day ; the crowbar 
 was sent on the 28th ; and both were received by Mrs Manning, 
 who complained that the bar was a shilling dearer than the price 
 agreed on. Manning had met the boy with it on the street, and 
 challenged him for carrying it without a cover, as he did not wish 
 an^'ltody to see what he was purchasing ; and Manning accordingly 
 went into a stationer's shop and Ixjught brown paper, in which he 
 wrapped it up. On the 8th of August the female prisoner bought 
 a shovel, saying to the shopkeeper that she wished a strong one ; 
 and it was sent home the same day. The fractures in the skull cor- 
 responded wdth blows from the crowbar, and a shovel was required 
 for laying in the lime. These different articles (only one of which, 
 the shovel, could be required for any household purpose) were thus 
 all prepared within a short time before the murder, both prisoners 
 having been concerned jointly in purchasing them. There was no 
 proof as to the pistol and bullet ; but some gunpowder and tissue 
 paper were found in Manning's coat pocket. 
 
 It was next proved, that on the 8th Mrs Manning wrote to 
 O'Connor a note in affectionate terms, asking him to dine with them 
 that day; but it was posted so late that he did not receive it in 
 time to dine with them on the 8th. He was in the house for some 
 hours in the later part of the evening ; and on the 9tli he had shewn 
 the invitation to some friends, and had been seen close to the house 
 immediately before the dinner hour (half-past five), as already men- 
 tioned. What happened in the house was not divulged ; but on 
 the evening of the 9th, about a quarter after six o'clock, Mrs Man-
 
 § 28G. CIRCUMSTANTIAL KVIDENCE. 209 
 
 iiiiig was ill O'Coiiiier's lodgings, where she remained about tliree 
 quarters of an hour, and tlien left, taking a parcel with her. She 
 repeated her visit a little later on the evening of the 10th ; and on 
 leaving, was observed l)y the persons in the house to be pale, and 
 to tremble very much. On tlic I'itli, when some friends of O'Conner 
 called at her house to iiKpiiro about him, she observed, without 
 anything having been said to lead to such a remark, " Poor Mr 
 O'Conner ! ho was the best friend I had in London." On this occa- 
 sion her countouanee was observed to change ; whereupon the \vit- 
 iiesses inquired if she was unwell. 
 
 It was farther proved that the Mannings had, on the 13th, sold 
 all their furniture to a broker, both of them having been engaged 
 ill the treaty for the sale, which commenced several days before the 
 supposed date of the murder. 
 
 On the 13th and 14th they left London. The female prisoner 
 had her luggage ticketed "Mrs Smith, passenger, Paris;" and she 
 was found some days afterwards in lodgings near Edinburgh, under 
 the name of Smith. One of her parcels, left at the London terminus 
 of the railway, ticketed " Mrs Smith, passenger, Paris, to lie till 
 called for," was found to contain dresses marked with blood ; and 
 a dress among those sold to the broker bore similar marks. Mrs 
 Manning's retreat was discovered in consequence of her having 
 offered to sell railway scrip to a stranger ; and a considerable quan- 
 tity of scrip, identified as O'Conner's, along with money and bank 
 notes, was found in her trunk, after she had denied having any 
 scrip. 
 
 The male prisoner was found in Jersey. The day before leaving 
 London he told the broker's servant, that if he was inquired after 
 she was to say she had not seen him for a fortnight. The same day, 
 on being asked by the broker if he was to sleep in his own house 
 that night, he said he would not do so for twenty pounds. On his 
 apprehension, lie at once threw the w^hole blame on his wife, and 
 described how she had fired the pistol at the back of O'Conner's 
 head ; but he gave no explanation on being asked about the frac- 
 tures in the skull. If was also proved, that after the murder he 
 had sold some scrip for £110 to a broker, when he represented 
 himself to be O'Conner ; and that a bank note for £100 (being part 
 of the price) had been cashed at a bank, and bore his own signa- 
 ture. 
 
 From this circumstantial proof it was unquestionable that 
 O'Conner had been murdered in the i\Iannings' house ; and the 
 only question was, whether the guilt of both prisoners was clearly 
 VOL L
 
 •210 CIRCUMSTANTIAL EVIDENCE. § 286- 
 
 proved, or whether one of them might not have done the deed, 
 witliont the other having been a principal or accessory before the 
 fact ? Manning's conversation with the medical stndent, his order- 
 ing the lime and crowbar, his anxiety to have the latter concealed, 
 and his statement that his wife committed the act in his presence, 
 ^"ithont his interference, while he did not try to explain the frac- 
 tures on the skull, more especially implicated him ; while her re- 
 ceiving the lime and crowbar, ordering the shovel, writing the note 
 to O'Connor, and going to liis house the very evening of the mur- 
 der, the bloody marks on her dress, and her manner on the occa- 
 sions above noticed, more particularly inferred her complicity. 
 These circumstances, with the joint arrangements for sale of the 
 furniture and flight, and the division of the booty, showed that 
 the murder and robbery had been a pre-arranged scheme, carried out 
 by the prisoners jointly. 
 
 The jury had no difiiculty in finding them both guilty ; a verdict 
 in the justice of which the whole country agreed with them. 
 
 § 287. In the trial of Burke and Macdougal for the murder of 
 the old woman Docherty (T), the circumstantial evidence was cor- 
 roborated by the testimony of Hare, a socius criminis. No doubt 
 could be entertained of Burke's guilt, and the jury accordingly 
 found him guilty. The proof against Macdougal showed that she 
 lived in the house with Burke as his wife, and had been there the 
 previous evening when the old woman was brought in, that she 
 was in bed in the room immediately before the murder, but that 
 when Burke and Hare commenced the attack, she (along with 
 Hare's wife) left the room and staid outside the door for a quarter 
 of an hour till all was over. Her knowledge that Burke intended 
 to murder the woman was proved ; and she went along with Burke 
 and the Hares part of the way when the body was taken to the dis- 
 secting room by a porter. It was highly probable, therefore, that 
 she knew the murder was about to be committed, and remained 
 outside to prevent any stranger entering. Yet there was a reason- 
 able ground for doubting whether she had been thus assisting, or 
 whether on the contrary she had been merely passive in not inter- 
 fering to prevent the murder committed by her husband. The jury 
 took the more merciful view and found the case against her " not 
 proven." But Mr Alison (m) mentions that the opinion on the 
 bench was that both prisoners were guilty. 
 
 (Z) 24th Dec. 1828, Syine, 346, anrl separate report. (m) 1 Al., 75.
 
 § 288. ClliCUMSTANTlAL EVIDENCE. 'ill 
 
 § 288. The cuiii]>ilcr uf the Causes Celebrcs uientions a curious 
 case of successful fabrication of circumstantial proof, Ijut without 
 vouching for its authenticity {n). An old widow kept a small shop 
 in a street in Paris, with a small back room where she slept. It 
 was believed in the neighbourhood that she had amassed a great deal 
 of money. Ilcr only servant for a long time had Ijceu a boy w'lio 
 slept on the fourth storey of a tenement near his mistress's house, 
 but not communicating with it. In order to get to his sleeping 
 place he had therefn'c to go round by the street ; and wdien he 
 went home at night, he locked the outer door of the shop, and took 
 the key, of which he had the sole charge and possession. One 
 morning the neighbours were alarmed by finding the shop door 
 open earlier than usual, without any movement being observed in- 
 side to indicate that the old woman or the boy had risen. No 
 mark of \'iolence was seen on the door. On the neighbours entering 
 they found a bloody sword on the floor of the shop, and the woman 
 lying in bed killed wdtli thrusts of the weapon, one hand clutching 
 a bunch of hair and the other a cravat. Near the bed was found a 
 box which had been broken open. The shop-boy was seised. It 
 was found that the sword and cravat belonged to him, and that the 
 bunch of liuir corresponded with his. In his room w-as found the 
 key of tlie door, tlic only means by which the shop could have been 
 entered without violence. On these circumstances being ascertained 
 the lad was subjected to the "question": under the agonies of tor- 
 ture he confessed: and he was broken on the wheel. Not long 
 afterwards a tavern-boy, who was arrested for some other crime, 
 confessed in his d}ang declaration, that he alone had been the mur- 
 derer. The tavern where he served adjoined the old widow's house. 
 He was intimate with the shop-boy ; and had been in the habit of 
 putting up the boy's hair en queue, and in this w^ay had gathered 
 from the comb a quantity of hair, out of which he gradually formed 
 the bunch gTasped in the dead woman's hand. He had no lUfliculty 
 in getting one of the cravats and the sword of his companion, and 
 of taking an impression off the door key so as to have a false one 
 made. 
 
 The circumstantial evidence against the shop-])oy (supposing 
 the case to be authentic) was probably so convincing that a jury 
 would have found him guilty. But it presents this peculiarity, that 
 the whole of the real evidence was of that apjjarcnt and manifest 
 character wliicli admitted of easy fabrication ; while it wanted 
 
 (n) The case is quoted on the authority of Jeremy Bentham (Jud. Ev., B. iii, ch. 15 
 note apud fin.), whose reference to the Causes Celebres (vol. 5, p. 438) is inaccurate. 
 
 2
 
 212 CIRCUMSTANTIAL EVIDENCE. § 288- 
 
 those minute and casual coincidences which ahiiost always occur in 
 real life. This manifestness could not have escaped the attention 
 of the shop-boy, if he had committed the act ; and it was difficult 
 to beheve that he would have left such glaring proofs behind him, 
 when he had time and opportunity to remove them all. Perhaps 
 the proof would not have been considered complete without the 
 confession — a striking illustration of the worthlessness of confes- 
 sions extorted under that most wicked practice. 
 
 § 289. Contrasted with the case last mentioned is that of 
 Humphreys, the rejected claimant of the Stirling Peerage (o). 
 The earldom had been dormant for a number of years ; when Mr 
 Humphreys, who in early life had been a schoolmaster in England, 
 and bore an unblemished reputation, came to this country and took 
 steps to establish his pretended right to it. He produced a copious 
 and elaborate set of title-deeds and other documents, which, if 
 genuine, would have proved his pedigree ; and by the usual form 
 of an ex parte inquest he was in 1831 gerved heir to the last earl. 
 He claimed to vote at the election of Scottish representative peers ; 
 and raised certain actions against the proprietors in possession of 
 lands alleged to belong to the earldom. In 1833 an action was 
 raised in the Court of Session at the instance of the Officers of 
 State, to have the service and subsequent title-deeds set aside, as 
 fabricated; and in that case the Lord Ordinary, after a good deal of 
 investigation into the authenticity of the documents founded on by 
 Humphreys, came to the opinion that the fabrication had been 
 established, and in 1836 his Lordship pronounced an interlocutor 
 reducing the services. Mr Humphreys was thereupon prosecuted 
 before the High Court of Justiciary for forgery and uttering. 
 
 The documents extended over two centuries, and embraced a 
 great number of writings, some of which referred to persons known 
 to history. It was a minute analysis of these documents, and espe- 
 cially of their dates, which proved that nearly the whole had been 
 forged, but with an astonishing amount of skill and elaborateness. 
 
 One document, bearing to be an ancient extract from the Chan- 
 cery Office of a crown-charter, and having the dingy hue of genuine 
 old age, consisted of several leaves stitched together. But the 
 portion which the stitching covered was uniform in colour with the 
 rest of the deed; whereas, if the document had been genuine, there 
 would have been a marked difference in colour between the exposed 
 
 (o) Separatelj' reported by Mr Swintoii.
 
 § 280. CIRCUMSTANTIAL EVIDENCE. 213 
 
 and the covered puitiuiis. — Tliu sumo dtjciimciit had certain red 
 marginal lines drawn on it. But official persons, familiar with the 
 extracts of the period, swore that red lines were not introduced into 
 the Chancery Office till a much later date. Some technical mis- 
 takes in the deed were also detected by skilful conve^'ancers. 
 
 This extract bore that the original charter had been sealrd mi 
 7th December 1639, and attested by " John (Spottiswood) Arch- 
 bishop of St Andrews, our chancellor ;" wIkj had demitted that 
 office thirteen months befui'c the date referred to. 
 
 But the most conclusive as well as interesting- circumstances 
 regarded a print of a French map of Canada by " Delisle, premier 
 Geographe du Koi, avec i)rivilege pour vignt ans 1703." On the 
 l»ack of this maj) were certain signed memoranda and narratives, 
 dated in 170(J and 1707, which had been founded on as establishing 
 the authenticity of the extract cliarter. The map naturally formed 
 part of the claimant's muniments ; as the Earls of Stirling had a 
 grant of lands in Nova Scotia ; and it was also not extraordinary 
 to find on the back of it the writings referred to. It was proved, 
 however, that Delisle had not been appointed Geographer Royal 
 until August 1718 ; and that it was the practice of engravers, and 
 in particular of Delisle, to preserve their plates marked ^^dth the 
 original year of publication (irom which the copyrights ran), mak- 
 ing alterations on them as they thought fit from time to time. The 
 original issue of impressions in 1703 (of which several were pro- 
 duced) bore simply Delisle's name ; but the iiarticular impression 
 in (Question could not have been issued until after 1718 when he 
 acquired his patent of oflice. The necessary consequence was that 
 the dates 1706 and 1707 of the writings on the back of it were false. 
 To make the proof of fabrication still more convincing (if that 
 were possible), it was proved that Fletcher, Bishop of Nismes, the 
 pretended writer of one of the notes dated 1707, had died in 1711, 
 that is, seven years before the publication of the pai)er on whicli it 
 was indorsed. 
 
 A striking circumstance connected witli the series of documents 
 was, that repeatedly during the investigations in tlie civil Court, 
 when a hiatus occurred in the jiroof, it was filled up l»y some addi- 
 tional documents discovered in the interval before the cause pro- 
 ceeded farther. 
 
 The forgery of the peiUgree and series of titles was thus com- 
 pletely established ; but the jury not being satisfied that Hum- 
 phreys had uttered them in the knowledge of their character, re- 
 turned a vi'rdict of ■' nnt in-.iven " ;is to tlial part of the charge, and
 
 214 CIRCUMSTANTIAL EVIDENCE. § 289- 
 
 he was accordingly assoilzied. From the erudite nature of the fa- 
 brication and the acquaintance with the technicalities of Scotch 
 conve3'ancing which it exhibited, as well as the skilfulness of the 
 manipulation displayed throughout the writings, it was manifest 
 that they had not been executed by Humphreys himself; while 
 the fact that they had been considered authentic by his legal ad- 
 "sasers in the civil case, and his previous good character, left in the 
 minds of the jury a reasonable doubt of his having uttered them 
 knowing that they were forged. 
 
 § 290. These citations will be closed with the case of the Count 
 de Morangies (^)); which illustrates the superiority of credible cir- 
 cumstantial proof, when conflicting with direct proof of a question- 
 able character. The Count, requiring to borrow money to the 
 amount of 300,000 livrcs, trusted an obscure money-broker, and 
 through her a pretended mone^^-lender, with bills of his, to that 
 amount and upwards, payable to order. The pretended lender de- 
 manded payment of the whole. But the Count declared that only 
 1,200 livres had been delivered to him. The lender's case consisted 
 of the bills, and the evidence of three alleged eye-witnesses to the 
 delivery of the whole. On the side of the Count it was proved that 
 the distance between his house and the lender's was such that it 
 was impossible that any one person could have traversed it thirteen 
 times with the different parcels of money within six hours, as the 
 lender's witnesses declared had been done ; while the history of the 
 money-lender's hfe, traced from the date of the pretended acquisi- 
 tion of so large a fortune to the time of the transaction, showed 
 the fact of her having possessed it, or nearly so large a sum, to be 
 in a high degree improbable upon any proof, and quite incredible 
 upon the evidence adduced. The Count's proof being upon matters 
 within the lender's own knowledge, it was likely she could have 
 disproved it, if it had been false. The Count was assoilzied. 
 
 § 291. The foregoing commentary will have shown that the 
 rationale of circumstantial evidence cannot be reduced to systema- 
 tic propositions. Some general rules, however, may be evolved 
 from it (r). 
 
 1. Every one of the circumstances essential to the conclusion 
 should be established by its own appropriate and independent proof; 
 
 (p) Bentham Jud. Ev., B. v, ch. 13, sect. 5; citing Liiiguit's Plaidovors. 
 (r) See Benth., B. v, ch. 15, ? 1—1 Starkie, 571, et 5^7.— Wills, 135. e/ acq.
 
 § 291. CIRCUMSTANTIAL i-:viih:nck. 215 
 
 in other wuixl.s, the .superstructure of theory should ouly Ije raised 
 on a fuundation of undoubted facts (s). 
 
 This rule ai)plies with peculiar force to proof of the corpus delicti, 
 the fact that the crime in question has l)een committed by some 
 person (t). 
 
 2. The probative value of a number of apt circumstances in- 
 creases in proportion to the numljer of independent sources from 
 which they are derived («). 
 
 When any concatenation of circumstances is consistently de- 
 tailed by a single witness, the coherence of his narrative is intrinsic 
 evidence of its credibility. When the different circumstances of 
 the group come from a number of independent sources, their mutual 
 coherence renders them in the highest degree credible, and the 
 chance of misdecision is limited to the inferences deducible from 
 them. 
 
 3. When each of the probative facts contributes immediately its 
 own inference to the common conclusion, their compound strength 
 
 (s) Baion Aldcrson has justly observed (R. v. Hodges, 2 Lewins, C. C, 227), " The 
 mind is apt to take a pleasure in adapting circumstances to one another, and even in 
 straining them a little, to force them to form parts of one connected whole ; and the 
 more ingenious the mind of the individual, the more likely is it, in considering such 
 matters, to overreach and mislead itself, to supply some little link that is awanting, to 
 take for granted some fact consistent with its previous theories, and necessary to render 
 them complete." [t) Several melancholy instances have occurred of persons be- 
 
 ing executed for murders, where the supposed sufferer had not been killed by any one. 
 See them collected in Wills' Circ. Ev., 162. Such cases show that the mere fact of a 
 person having gone amissing, combined with proof of murderous intent in the accused, 
 is not sufficient ground for concluding that the person has been murdered. On the 
 other hand, it is not always indispensable that the body be recovered ; otherwise there 
 would be impunity for murders committed at sea (see Burnett, 536 — Captain Green's 
 case, March 1705). Accordingly, in an English case, a witness swore that a mariner 
 had proposed to kill his captain, that during the night the witness was alarmed by noise 
 of violence, and upon going on deck saw the mariner throw the body of the captain 
 overboard, and it was also proved that near the spot a billet of wood was found with 
 which a fatal blow might liave been given, and that the deck and part of the prisoner's 
 dress were stained with blood. It was urged on behalf of the prisoner, that as the cap- 
 tain's body had not been seen, he might have been picked up alive by one of the nu- 
 merous vessels near the place. But tlio Court left the jury to say whether he had not 
 been killed before being thrown overboard ; and as they were satisfied that he had, they 
 retunied a verdict of guilty, which was followed by the prisoner's execution (R. v. JIarsh, 
 1792, 2 Leach, C. C, 571). It is humbly thought that the judge's charge limited too 
 much the question before the jury, since they might have returned a verdict of guilty 
 although they had not been satisfied of the fact of death before the casting overboard, if 
 they were morally certain that the murder wixs completed by the violence and that act 
 in combination. (m) The increasf may be botler lopresented by a mathematical 
 
 than a merely arithmetical progression.
 
 216 CIKCUMSTANTIAL EVIDENCE. § 291- 
 
 is multiplied (x) as their number is increased ; and they may jointly 
 establish the fact in issue, although all of them, when viewed inde- 
 pendently, may bo explicable upon other hypotheses. 
 
 4. When the proof of each of a series of facts raises an inference 
 of the existence of another fact in the series — only the last of them 
 inferring the existence of the fact in issue — the probability of the 
 truth of the issue (in so far as it depends on that line of evidence) 
 diminishes as the number of the facts increase, and the inconclu- 
 sivcness of any one inference in the series is fatal to the whole. 
 
 In this sense a circumstantial proof is like a chain, which cannot 
 be stronger than its weakest link, and which becomes continually 
 weaker as each new link is added, till it breaks with its own 
 w^eight (^). 
 
 5. The existence of a single probative fact absolutely incompa- 
 tible with a hjqDothesis deducible from all the other probative facts 
 necessarily excludes that hypothesis ; for, as the whole of the actual 
 facts must have been consistent, some other hypothesis must exist, 
 with wdiich all the probative facts will coincide. 
 
 6. When the inconsistency betw^een any of the probative facts 
 and the h}']3othesis deducible from the rest of these facts is not ab- 
 solute but probable, the conclusiveness of that hypothesis is dimi- 
 nished in proportion to the strength of the contrary probability. 
 In criminal trials, therefore, the prisoner ought to be acquitted if 
 the inference of guilt, when weighed against the supposed incon- 
 sistency, is not sufficiently convincing to exclude all reasonable 
 doubt. 
 
 7. The conclusiveness of a circumstantial proof is not a suffi- 
 cient reason for non-production of attainable direct evidence ; and, 
 as a party is not likely to trust the decision of his case to an infer- 
 ence, when he could prove it directly, the withholding of the testi- 
 
 (x) " Probable proofs by being added, not only increase the evidence, but multiply 
 it." Butler's Analogy (Fitzgerald's edition), 285 — See also MiU's Logic, B. iii, eh. 23, 
 2 6. Thus (to take tlie simplest case), suppose the probability of the truth of the in- 
 ference that A is B to be as two to three, and the probability of the truth of another in- 
 ference that C is B to be as three to four ; " of every twelve things which are A, all ex- 
 cept four are B by the supposition ; and if the whole twelve, and consequently these 
 four, have the characters of C likewise, three more will be B on that ground. There- 
 fore out of twelve which are both A and C, eleven are B." Mills, ut supra — See also 1 
 Starkie, 5G9, note. (.y) See this fully illustrated in Beutham, B. v, ch. 15, § 1, 
 
 note — See also Mill's Logic, supra. Mr Mill justly observes, " a hearsay of a hearsay, 
 or an argument from presumptive evidence, depending not upon immediate marks, 
 but upon marks of marks, is worthless at a very few removes from the first stage."
 
 §291. CIRCUMSTANTIAL EVIDENCE. 217 
 
 luuny of" eye-witnesses impairs tlic ])n;bative value of a merely eir- 
 cumstantial proof adduced by liim. 
 
 Lastly. In general the affirmanee of the issue should not be left 
 to direct proof alone, when corroborating circumstances are attain- 
 able. Accordingly, unmixed direct proof almost never occurs in 
 practice, exee|)t when it is limited to the writ or oath on reference 
 of the adducer's opponent.^ 
 
 J It has been thought unnecessary to multiply cases on this subject. The trials in 
 Scotland which, since the publication of tlie first edition of this work, have excited 
 greatest interest and attention, are those of H. M. Advocate v. Madeline Smith, in 1857 
 (Special Report by Mr Irvine), and H. M. Advocate v. Jessie M'Intosh or M'Lachlan, in 
 September 18G2 ; but neither of these cases presented specialties involving any impor- 
 tant illustrations of the principles of circumstantial evidence, or requiring detailed 
 analysis.
 
 21.*^ GENERAL NATURE OF PRESUMPTIVE EVIDENCE. § 202- 
 
 TITLE VIII. 
 
 OF PRESUMPTIONS, 
 
 CHAPTER I. — OF THE GENERAL NATURE OF PRESUMPTIVE 
 EVIDENCE. 
 
 § 292. A presumption is an inference as to the existence of one 
 fact, drawn from the existence of another fact, and manifest to 
 most persons of ordinary inteUigence (a). 
 
 The principle of all presumptions, therefore, is, that whenever 
 we have come to regard two facts as associated in coincidence or in 
 sequence, proof of the existence of the one leads, more or less 
 forcibly, to belief in the existence of the other. Hence presump- 
 tions may be classified either according to the grounds of the con- 
 nection between the facts proved and the facts presumed, or accord- 
 ing to the degrees of their probative force. A cursory glance will 
 be taken at these general aspects of presumptions before noticing 
 them individually. 
 
 (a) Stair, 4, 45, 9 — Ersk., 4, 2, 34 — 1 Starkie, 558. The difference between circum- 
 stantial and presumptive evidence has ah-eady been noticed (j^ 247). Kfictio juris dif- 
 fers from them both. It exists where law, disregarding evidence and probability, holds 
 as true what may be untrue, or what cannot possibly be true (Ersk., 4, 2, 38). Thus 
 summonses narrate a complaint to the Sovereign by the real party, which might be true, 
 but is always false ; while the rules that the Sovereign cannot do wrong, that an heir is 
 eadem persona cum defuncto, and that the person of a wife is sunk in that of her husband, 
 are examples of impossible fictions. Sometimes a presumption runs into a fiction, as 
 does the presumption palrem esse quera nuptiae demonstrant in England, whenever the 
 birth was so recently after the marriage that conception in wedlock was impossible. 
 The nature of &fictio juris was much discussed m Kerr v. Martin, 1840, 2 D., 752, which 
 involved the question whether the fiction that the parents of children legitimated ^er 
 subsequens matrimonium were married at the birth, applies in Scotland. The Court held 
 that it does not.i 
 
 1 The judgment was, that a child born out of wedlock was legitimated by tlie snhse-
 
 § 293. GENERAL NATURE OF PRESUMPTIVE EVIDENCE. 210 
 
 § 293. (i) All inference is sonietiines dniwii as from cause to 
 effect. Tlius it is presumed tliat brilicry in a \vitiiess will produce 
 false testimony, and facility is presumed to arise from being on 
 deathbed. More frequently the inference is from a proved effect 
 to a latent cause or motive, e.g., the presumptions that a child born 
 in wedlock was begotten by the mother's husband ; that one who 
 pays interest owes the principal ; that libellous expressions have 
 been dictated by malice ; and that deeds vitiated in suhstantialibus 
 have been wrongfully altered after subscription {b). 
 
 (2) It is presumed that relations which have once existed 
 have continued (c). Thus it is not necessary to prove the continu- 
 ance or renewal of a general mandate. The relation of debtor and 
 creditor is presumed to subsist till a discharge is proved, or till the 
 presumpti»,»n is overcome by a contrary inference arising from mora 
 or some other relevant circumstance, 
 
 (3) Where acts are proved which indicate a certain chain or 
 stream of events, subsequent acts in the series ^^^ll be presumed (t^- 
 But this is a weak inference, since the hypothesis of the earlier acts 
 having ])een so connected may be erroneous ; while altered inten- 
 tion, accident and many other circumstances may have prevented 
 their completion. — More forcible are presumptions from tlie later 
 to the earlier acts in the supposed series (e), as in questions of pre- 
 scriptive right, where, upon proof of possession during the memory 
 of man, possession is presumed upwards to the date of the title.^ 
 So the existence of a decree is, after an interval, a sufficient reason 
 for presuming the existence of its grounds and warrants. — Again, 
 the intermediate acts in a supposed series ^Adll be presumed when 
 the extremes are proved ; probatis extremis presumuntur media (/). 
 This is illustrated in proving possession, where it is enough to show 
 
 (6) Stair, 4, 45, 17, (4)— ib., 4, 42, 19, (2). (c) Best on Presumptious, 186. 
 
 (d) 3 Benth, 213— Best, 75. (e) Benth, 213— Best, 75. (/) Stair, 
 
 4_ 40, 20— il... 4, 45, 17, (22)— Best, 75.- 
 
 quent marriage of its parents, and was its father's heir, although a lawful marriage be- 
 tween its mother and another man had intervened. Six of the judges held that legi- 
 timation per subsequens matrimonium depended on the fiction that the father and mother 
 (if the child were married at its birth, that this fiction was contradicted by the inter- 
 vening marriage, and that the child was therefore illegitimate. The majority thought 
 that the rule, that a child born out of wedlock was legitimated per subsequens viatrimo- 
 nium, was a positive rule of law. not depending on fiction, and that therefore the child 
 was legitimate. 
 
 2 For example — If it be proved that the public have liad uninterrupted possession of 
 a right of way for a long period of years, though fewer than forty, a jury is warranted 
 in presuming, if there be no evidenf-'^ t" tb.' mntmry. that tb^y bad similar possession
 
 220 GENERAL NATURE OF PRESUMRTIVE EVIDENCE. § 298- 
 
 aets of possession at intervals of time ; from which law presumes 
 that the possession continued throup,-hout the Avhole ])eriod embraced 
 by the proof (g). 
 
 (4) Law presumes that the ordinary course of nature has 
 run (Ji). This is seen in the presumptions regarding the period of 
 gestation (/), the duration of life (k), and the like. So it is pre- 
 sumed that a pupil is unable to contract, and that a girl below the 
 age of puberty cannot consent to sexual intercourse. 
 
 (5) Similar to the presumptions last noticed, but less forcible, 
 are those which flow from the ordinary course of human conduct (I); 
 some of which, indeed, spring from the laws of nature. The course' 
 of trade and business give rise to an analogous class of infer- 
 ences (w) ; e.g., that bills are onerous, that cliirographum apud de- 
 hitorem repertum presumifur sohifum, and the presumption from the 
 apocha trium annorum? 
 
 (6) Another principle in presumptions is, that where one side 
 of the issue is injurious to a party, law will hold the other as true 
 till it be disproved. This is shown in the presumptions in fiivour of 
 innocence, sanity,^ and legitimacy, and of freedom from conven- 
 tional obligations and from servitudes {n). So all possession is 
 
 [g) Stair, supra. {h) Best, 1 70. (/) See infra, g 314, et seq. 
 
 {k) Infra, ^ 299, et seq. {1} Best, 170, 179. (7ft) Best, 179. 
 
 (w) Stair, 4, 45, 17, (2, 3, 5)— lb., 4, 42, 21, (3). 
 
 before the date to which the i^roof goes back. But there is no room for that pre- 
 sumption, if there be proof that immediately prior to the date to which the proof of 
 possession by the public goes back, there was adverse possession ; Harvie v. Rogers, 3 
 W. and S., 251— Magistrates of Elgin v. Robertson, 1862, 24 D., 301. So in actions of 
 filiation it is a general principle that, when the defender admits connection with^'the 
 mother within the period of gestation, and if it be proved that he had opportunity of 
 connection at or about the time of conception, connection at that time may he pre- 
 sumed ; Lawson v. Eddie, 1861, 23 D., 870. 
 
 3 A sale of goods is, if there be no special agreement, presumed to be for ready 
 money. This presumption was applied to a case where the goods could only be de- 
 livered by parcels at intervals of time, to the effect of holding that a partial payment 
 was due on each partial delivery ; Hall & Sons v. Scott, 1860, 22 D., 413. 
 
 Professional employment is prima facie on the footing that the professional services 
 are to be remunerated, but circumstances may rebut the presumption ; Manson v. Baillie, 
 1855 — 2 Macqueen, 80, 81, ^er Lord Chancellor Cranworth. In a previous case. Lord 
 Rutherfurd held that an allegation that an agent had agreed to ^ive his services gra- 
 tuitously, could be proved only by tlje agenfs writ or oath ; and his Lordship's inter- 
 locutor was affirmed ; Taylor v. Forbes, 1853; reported 24 D., 19. But see Knox v. 
 M'Caull, 1861, 24 D., 16. 
 
 * Sutton V. Sadler, 1857, 3 Scott's C. B. N. S., 87.
 
 § 295. GENEKAl. NATURE OF I'UEyUMPTIVE EVIDENCE. 221 
 
 presumed In be lawful (o/^ ; aud oiiiuia presumenda solenniter 
 acta {jj).^ 
 
 All presumptions tix the party agaiust whom they are pleaded 
 with the burden of proof. They have already been noticed with 
 reference to that subject {q). 
 
 § 294. In a legal jioint of view, the most important division of 
 presumptions is according to their degrees of probative force (r). 
 In this respect they are divided into jjresunqjtioutfi Juris et dejure — 
 presiDitpt iones Juris tardum — -dxni'prcsuinptionis hoiuinis veJJudicis{s). 
 The first class are presumptions to which law gives efi'ect absolute- 
 ly, and which may not be contradicted by any evidence, however 
 strong and clear {t). In some cases the conclusiveness of these 
 inferences arises from their natural strength ; but it is often an 
 adventitious quality which law attaches to them from reasons of 
 policy (w). Presumptions Juris et de Ju7X are scattered over our 
 statute and common law, and have place both in civil and criminal 
 causes. The following are the most important of them : — 
 
 § 295. (1) In all civil questions where the rights of husband 
 and wife depend on the birth of a living child, it is ])resviin.ed Juris 
 et dejure that it did not live if it was not heard to cry (x). And 
 where the question w^as whether the parents were entitled to a be- 
 quest left to them on condition of their "having two children living 
 at any time," the Court held that the averments that a second child 
 had been born, alive, and continued to live during three-quarters of 
 
 (o) lb., 4, 45, 17. (2). {^j) Stair, 4, 46, 27 — Best on Presumptions, 74, et seq. 
 
 {q) Supra, I 5, et seq. (r) The division sometimes adopted into jsrwM/n/j/iowea 
 
 juris and presumptiones facti is thought to be erroneous. All presumptions are facli ; 
 both the evidentiary matter and the inference being facts. (s) Stair, 4, 45, 
 
 12— Ersk., 4, 2, 35. {t) Stair and Erslc, ut supra. (u) Following 
 
 up a view already suggtstoil — ? 247, note (c), — the peculiarity oi presumptiones Juris et de 
 jure may be stated thus — that V\\\\\e presumptiones juris and presumpfiones /tominis velju- 
 dicis have their natural probative value under a syllogism with the major premiss " Most 
 A are "R •" iu presumptiones juris et dejure law creates an unnaturally close connection 
 between the evidentiary and the presumed facts, and raises the major permiss into " All 
 A are B." (x) Reg. Maj., 2, 68— Stair. 2, G, 19— Ersk., 1, 6, 40— Dobie c. 
 
 Richardson, 1705, M., C183. 
 
 5 In like manner, of two possible meanings of a deed, according to the one of which 
 the deed will be legal, acconling to the other illegal, the law will presume the former 
 to be the true construction; Best on E\id., 3d. ed.. 447. So the law will prefer a mean- 
 ing which makes a deed valid, to one which makes it void; Marwick v. Norfolk, 1855, 
 4 Ellis and Blackb.. 397.411. 
 
 •^ Williams v. Eyton, 1859, 4 Hurl, and Norm., 357.
 
 222 GENERAL NATURE OF PRESUMPTIVE EVIDENCE. § I'.iO- 
 
 au Lour, that it had been seen to breath repeatedly, and that its 
 heart had been distinctly felt to beat, were not relevant, because it 
 was admitted that the eliild had not been heard to cry {//). The 
 rule has not been applied in prosecutions for child-murder.^ 
 
 (2) Law presumes that a pupil cannot understand his civil 
 rights, and therefore that contracts and obligations undertaken by 
 him are null (2). It seems strange that this rule should be so ab- 
 solute, while pupils are every day punished for crimes. A child 
 below seven years old, however, is held not to have understanding 
 sufficient to commit a criminal act (a). 
 
 (3) A girl below twelve years of age is held to have neither 
 understanding nor physical development sufficient to consent to 
 sexual intercourse ; so that proof even of eager consent will not pre- 
 vent a verdict of rape against one having connection with her (&). 
 In England it is held on the same grounds that a boy below four- 
 teen cannot commit a rape (c). The reverse has been decided in 
 this country (d). A pupil, however, cannot consent to marry (e) ; 
 and in this question proof that malitia suppleat aetatem, although 
 admitted by the canon lawyers, is rejected in Scotland (/). 
 
 (4) The statutory crime of concealment of pregnancy involves 
 the presumption Juris et de jure that a woman who conceals her 
 condition from every person, and does not call for help at the birth, 
 had a criminal indifference about the fate of her child ((/). 
 
 (5) The statutes for preventing base coin (A) ,^ and forged Bank 
 of England notes (^), have made the possession by unauthorised 
 persons of counterfeit coin or notes, or of apparatus for preparing 
 them, full proof of crime, although it is only a strong presumption 
 of it. 
 
 {y) Roberton v. Robcrton, 1835, 11 S., 297. This decision, which was pronounced 
 against a very clear opinion of Lord Meadowbank, is thoiight to be questionable. 
 
 (z) Stair, 1, 10, 13, (1)— Ersk., 3, 1, 16. {a) 1 Hume, 35—1 Al., 666. 
 
 (h) 1 Hume, 303—1 Al.. 213. (c) 1 Hale, 630. {d) Fulton, 
 
 1841, 2 Swin., 564 (this decision was pronounced on circuit) — Burnett, 102. 
 
 (e) Ersk., 1, 6, 2, and Ivory's note, 134—1 Fraser, 42. (/) Ersk., ib.— 
 
 1 Fraser, 43— Johnstone v. Ferrier, 17th November 1770. F. C. M., 8931. 
 
 {g) 1 Hume, 295—1 Al., 153. {h) 2 W. IV, c. 34. [i) 45 Geo. Ill, c. 89. 
 
 7 In England, evidence of the performance of any vital act, as of the beating of the 
 heart, is, in civil causes, proof that the child was born alive ; Brock v. Kellock, 1861, 
 30 L. J. Ch., 498. In Scotland, under an indictment for child-murder, the prosecutor 
 must prove that the child was fully born, and had an existence separate from the 
 mother; Jean M'Callura, 1858, 3 Irvine, 187. 
 
 8 Coinage Offences Act, 24 and 2o Vict., c. 99, ii^ 6, 7, 8, 23, 24, 25. The Act 2 
 Will. IV, c. 34, is repe i]e ! by 24 and 25 Vict., c. 95.
 
 § 297. PRESUMPTIONES JURIS KT I)E JVUK. 223 
 
 (6) The law of dfiitlibed makes facility and improper influence 
 a presumption yzw/s et de jure from the granter of the deed l»einj^ 
 at the time of its execution ill of the disease of which he died, and 
 dying within sixty days after its date, without having been at kirk 
 or market in tlic interval {k).^ 
 
 (7) Deeds which one who was insolvent at tlieir dates, and 
 who has afterwards become bankrupt, granted in favour of conjunct 
 or confident persons without onerous causes are presumed, juris et 
 de jure, to be fraudulent devices to defeat the rights of his credi- 
 tors (0- 
 
 (8) It is a presumption juris et de jure that no one is ignorant 
 of the law of the land (/»). Even a foreigner contracting in this 
 country is presumed to know the law applicable to the agreements 
 into which he enters (;i). 
 
 § 29G. Presumptiones juris, ixnd presumptiones hominis vel judi- 
 CIS (o), (unlike presumj^tiones juris et dejure), may be overcome by 
 contrary e\'idence. They differ from each other ordy in this, that pre- 
 sumptiones juris have an established j)lace in law', partly on account 
 of their natural strength, and partly from the repeated occurrence 
 of the facts from which they flow ; they may be said to spring from 
 the experience of the law; \x\iQYQ<)i'& presumptiones hominis veljudi- 
 cis emerge daily in individual cases, and are suggested by the ex- 
 perience of the judge or jury. These tw^o classes of presumptions 
 do not differ in point of probative force. Both of them admit of 
 various degrees of strength ; and a presumptio juris may be over- 
 come by a presumptio Jwminis veljudtcis, as the presumption of in- 
 nocence yields to proof of circumstances inferring guilt.^" 
 
 (k) IGOf), c. 4— stair, 3, 4, 27— Ersk., 3, 8, 06— Bell's Pr., § 1786, et seq. 
 (l) 1C21, c. 18—2 Bell's Com., 186. (m) Stair, 4, 45, 17, (20)— Ersk., 1, 
 
 1, 21, and 8, 3, 54—1 Hume, 26— Cloup v. Alexander, 1831. 9 S., 448. 
 
 (n) Cloup V. Alexander, supra. (o) Stair, 4, 45, 12 — Ersk., 4, 2, 37. 
 
 9 When a holograph mortis causa ^vTiting is prejudicial to the heir at all. it is pre- 
 sumed to have been executed on deathbed, but the contrary may be proved ; Fairholme 
 V. Fairholme's Trs., 1856, 10 D., 178. 
 
 10 " A presumptio juris may be introduced either by statute or custom ; it may have 
 its origin in some strong natural probability, assented to by the general voice of man- 
 kind, or in some usage of trade, drawing uniformly the same inference from a certain 
 fact, or combination of facts ; but, before it can have the authority of a proper />««/»»/>- 
 tic juris it must be recognised and take its place as a part of the system to which it be- 
 longs. Till it has been so recognised it is fact, and not law." There is no presumptio 
 juris that an agent, purchasing or selling for a disclosed foreign principal, is personally 
 liable. The question in each case is for a jury. The presumption of fact, that the
 
 224 GENERAL NATURE OF PRESUMPTIVE EVIDENCE. § 297- 
 
 § 297.. Ill England it would seem tliat the distinction between 
 these classes of presumptions lies in this, that the judge is bound 
 to direct, and the jury to find, in favour of a party holding a pre- 
 sumptlo Juris mirebutted ; so that, if they disregard it, new trials, 
 toties quoties, will be granted as matter of right — but that, on the 
 other hand, it 'is discretionary in the Court to grant a new trial 
 where the verdict is only against a presumiMo liominis vel Judi- 
 cis (p). Another difference between these classes of presumptions 
 in England is, that wherever the facts which raise a, presumptio ju- 
 ris appear on the pleadings, the Court will draw the inference with- 
 out the aid of a jury ; which they will not do when the presumption 
 is only hominis vel judicis. As our law of presumptions was ma- 
 tured before the introduction of jury trial in civil causes, and as 
 our criminal practice has never allowed exceptions from the judge's 
 charo-e. the first of these distinctions has not been established in 
 this country. The second, however, is consistent with our prin- 
 ciples and practice." 
 
 § 298. '^oTHQ presumptiones juris can only be redargued by writ 
 or oath of party ; while in regard to others the contradictory proof 
 is unlimited. All the former class are noticed in the following 
 chapters, which embrace the leading presumptiones jtiris established 
 in Scotland.^2 
 
 (p) Best on Presumptious, 17 and 44 — 1 Phil., 460. Englisli lawyers are not agreed 
 under which of these heads several of their presumptious should be ranked. 
 
 agent is liable, is stronger when he buys than when he sells, because it is more easy to 
 suppose in the former case than in the latter that the agent imdertakes specific imple- 
 ment ; Millar v. Mitchell, 1860, 22 D., 833— Heald v. Kenworthy, 1855, 10 Hurl and 
 Gord.. 742— Green v. Kopke, 1856, 18 Scott's C. B., 549. 
 
 11 Where the patent of creation of a Peerage does not appear, it is a fundamental 
 proposition in peerage law that the presumption is in favour of heirs male, but that pre- 
 sumption may be rebutted; Herries' Peerage Claim, 1858, 3 Macqueen, 585, per Lord 
 Brougham. 
 
 12 Reference may here be made to the following statutory presumptions under re- 
 cent acts : — A bill of lading in the hands of a consignee or indorsee, for value, is con- 
 clusive evidence of the shipment of the goods entered in the bill as against the person 
 signing it, unless the holder has received actual notice, at the time of receiving the bill 
 of lading, that the goods were not in fact laden on board : Provided that the party 
 signing the bill may, if the goods have not been shipped, exonerate himself by showing 
 that the misrepresentation in the bill of lading was caused without his fault and by the 
 fraud of the shipper, or holder, or other person through whom the holder claims; 18 
 and 19 Vict., c. Ill, § 3. 
 
 When goods are sold for a specified and i)articular purpose, warranty that they are 
 fit for that purpose is implied ; 19 and 20 Vict., c. 60, ? 5. 25 and 26 Vict., c. 88, ?? 19 and 
 20, provides that, after 31st December 1863, in sales of articles with a trade mark, there
 
 § 3<»l. PRESU.MITIOX OF I.IFK. 225 
 
 CHAPTER II. — OF THE PUESU.MITION IN FAVOUR OF LIFE. 
 
 § 21)9. The law ut" Sci^thiiid recog-uises a prcsuinjjtinii in lavour 
 of tlio coiitiiiiiaiice of life for a reasonable period, so as to lay the 
 burden of jn'oving death ujjon tlie party alleging that faet (a). A 
 preeise limit to this ))resuniption has not been tixed. Lord Bank- 
 ton states it at a hundred years (b) ; Lord Stair says some extend 
 it to that time, and others only to eighty years (c) ; \\]\\h Mr 
 Erskine does not define its duration (d)} 
 
 § 300. Of course this presumption may be overcome Ij}' direct 
 evidence of death ; and in several cases regarding persons supposed 
 to have died al)road the Court admitted evidence on this head from 
 sources not strictly regular, as being the best proof that the circum- 
 stances admitted of (e). 
 
 The presumption of life may also be overcome by circumstances 
 which raise a contrary proba))ility. The following cases illustrate 
 the views of the Court on the ^joint. 
 
 § 301. On the one hand the presumption of life was held not 
 to be overcome in the following cases. Where a sailor in the 
 prime of life disappeared suddenly at a seaport in England, and was 
 not heard of during forty years afterwards, the Court presumed that 
 
 (a) Stair, 4, 45, 17 (lH)— Ersk., 4, 2, 36. {b) Bank., 2, G, 31, and see Car- 
 
 stairs V. Stewart, 1734, M., 11,G33, Elch. " Presuinption," No. 13. (c) Stair, 
 
 supra. (d) In considering this presumption, the number of years at which an 
 
 actuary M-ould calculate the value of the life ought to be proved, as aflording the datum 
 point of its probable duration. The Court could then fix what additional years they 
 woidd allow, according to the circumstances of the case. (e) Lawrie v. Drum- 
 
 mond, 1070, M., 12,(343— M'Lerie v. Glen, 1707, M., 12,565 (Fountainhall)— Henderson 
 V. Morton, 1710, M., 12,646— Stewart v. Hay, 1760, M., 11,675— Forrester v. Boucher, 
 1760, M., 11,674— Sec tnfra, § 304, compared with Straiten v. Straiten. 1767. M., 
 11,679— Tait, 482. 
 
 shall bo implied a warranty that the trade mark is genuine ; and in sales of articles on 
 the label of which there is a statement respecting " the number, quantity, measure or 
 weight " of the article, or the place in which it was made or produced, a warranty .shall 
 he implied that the statement is in no material respect untrue, unless in cither case the 
 contrary shall be expressed in writing signed by or on behalf of the vendor, and delivered 
 to and accepted by the vendee. 
 
 1 " We have fortunately no rule founded on presumptions derived from the lapse of 
 any fixed period of time, and every case which I have ever seen shows how unwise it 
 would be to attach any such weight merely to the lapse of a certain number of years, 
 without regard to the age and character of the party and his condition in life, and the 
 character of the country in wliich he was last resident ;" Lord Justice-Clerk Hope in 
 Fife I'. Fife, 1855, 17 D., 954. 
 
 VOL. 1. p
 
 22(:i PRESUMPTION OF LIFE. § 301- 
 
 lie survived his fatlier wlio died four months after the disappear- 
 ance (_/*). 
 
 In 1801 a man ag-od thirty k^ft Gkisgow for America. The last 
 letter from liim (wliicli was to his brother) Avas dated in 1804, and 
 lie had not been heard of from that time to the date of the action 
 in 18-15. He had never written to his wife, having been much dis- 
 satisfied with her conduct when he left. About 1803, wdien he was 
 known to be alive, she began to coliaT)it in Glasgow wath another 
 man, wdth w^hom she continued to live till his death in 1810 ; and 
 during the whole of the intervening period that person and she 
 W'ere reputed man and wife. In a question Avhether that person 
 and she w'ere married, and whether their children (the one a pos- 
 thumous child, and the other born in 1808) were legitimate, the 
 Court held that there w^as not ground to infer that the first husband 
 was dead when the second connection began, or at any time during 
 its subsistence, and consequently they held that the children were 
 illegitimate (g). So wdiere there w^ere letters in 1819 from a per- 
 son in New York of middle age stating that he had then two sons, 
 it was held in 1834 that the lapse of the intervening years, and the 
 want of intelligence during them, did not raise a presumption that 
 both he and his sons had died {h). Again, the Court held that it 
 was not sufficient to infer death, that the individual, who at the 
 date of the action would have been about fifty years old, had gone 
 to Tobago as a sailor, and had not been heard of for twenty years (i). 
 In another case a man bred a seaman had in 1803 left Liverpool 
 for Pictou ; and at the time of the action in November 1841 no 
 tidings of him had been received since 1804. This person's heir 
 having claimed two sums, one of which he had right to if his an- 
 cestor had died before the case came into Court, while he had only 
 right to the other in the event of the ancestor having died either be- 
 fore 1812 or after 1832 ; the Court considered it likely that the ances- 
 tor died before 1841, and therefore allowed the heir to receive the 
 former sum and corresponding interest, on finding security to re- 
 
 (/) Bruce v. Eobson, 1834, 12 S., 486. The question arose on a claim by the fa- 
 ther's trustees, to be allowed credit for a debt due by the son, whicli, twelve years after 
 the disappearance, they had paid, on the assumption that he had survived his father. 
 
 {ff) Lapsley v. Grierson, 1845, 8 D., 34. This case was very carefully and elabo- 
 rately considered both by the bench and the bar. (A) Reid v. Brown, 1834, 12 
 S., 278. (0 Campbell v. Lament, 1824, 3 S., 145. The point occurred in an 
 application by the party's heir, to uplift a sum on the presumption of death, and the 
 Court seemed willing to allow this on cauticm ; which, however, the heir could not find. 
 See the same case ten years later, infra, § 306.
 
 § 303. PRESUMPTION or LIFE. 227 
 
 })Ocit ill case the i)arty liiul sni\i\cil; l»iil ihu}' required the latter 
 sum to remain coiisi.^ned in the meantime, lieeause there were no 
 data lor ascertaining- the pro]»aM(; time of the siij)itosed death (k). 
 
 § 302. In a recent case where a judicial factor loco ahsentis 
 raised an action for reducing a service obtained liy one whose right 
 as heir would have l)ecii posterior to that of" the ahsentee, if alive, 
 tlie defender pleaded that the factor had no title to sue, and at all 
 events that his absent constituent was U) be regarded as dead. It 
 appeared that about nineteen years previously the latter had left 
 this country for New Orleans, that he had not Ijcen heard of since, 
 and that although the succession had opened before his departure, 
 lie was likely not to have known of it, as it was taken up by an- 
 other person, whose title was not set aside until several years after- 
 wards. On these facts the Court, while sustaining the general 
 competency of the pursuer's title as factor loco ahsentis, were much 
 perplexed by the question of the absentee's death ; as they did not 
 consider that there was sufficient ground for holding the presump- 
 tion of life to be overcome. They ended in sustaining the compe- 
 tency of the action, on the absentee's sisters (whose right was also 
 preferable to the defender's) becoming joint pursuers with the fac- 
 tor ; since, if the absentee were alive, the instance of the factor was 
 good, and if he were dead, the sisters were entitled to sue (T)} 
 
 § 303. On the other hand the presumption in favour of life may 
 be overcome by proving that the individual was engaged in a peril- 
 ous occupation, that he sailed in a vessel which has not been heard 
 of, although it should have long ago reached its destination, or that 
 he has been abroad for many years without any intelligence show- 
 ing that he is still alive, especially if he had previously been accus- 
 tomed to correspond with his friends at home. Regard is also paid 
 to the circumstance of his friends or relations reputing him to be 
 
 (A-) Garland v. Stewart, 1841, 4 W, 1. (/) Kennedy v. M-Lean, 1851, 13 
 
 D.. 705. 
 
 2 A labourer deserted his wife and child and went to America. He was never heard 
 of after 1833. The Court refused to hold that he was dead in 1850, when, if alive, he 
 would have been about fifty-two years of age; Fife i*. Fife, 1855, 17 D., 951. An indi- 
 vidual who, if alivo in 18G2. would liave been seventy years old, was last heard of in 
 Nova Scotia in 1849. In 1854 his brother died, and the succession to his property 
 opened to him if he was alive. Careful inquiries were made about him in the places 
 where he had previously lived, but no information was obtained. In an action by his 
 representatives it was held, in 1862, tljat tlio presumption for his survivance had not 
 been overcome; Barstow v. Cook, 1862, 24 D., 790. 
 
 r 2
 
 228 PREsr^rPTioN of life. § 303- 
 
 dead (m). When the Court consider the inference of death to be 
 sunu'iently strong, they give effect to it at once ; but when they 
 think there is a chance, not very remote, of the person being still 
 alive, they require the party claiming any succession or other right 
 on the footing of his death to find securit}^ to repeat in the event 
 of the absentee being found to be in life. 
 
 § 304. Thus the presumption of life was overcome in an old 
 case where a soldier had gone to France six or seven years before, 
 had been engaged in a "flagrant war," and had not been heard of 
 since ; because the death of private soldiers cannot always be ascer- 
 tained in such cases (n). Again, when one had gone to Barbadoes, 
 and after being successful in business and acquiring a considerable 
 estate there, had become a privateer on the coast of Jamaica, had 
 not returned to Barbadoes, and was there reported to be dead, the 
 pursuer, who was his wife, having produced an aflPectionate letter 
 from him, dated about three years before the action, promising to 
 return to Scotland in a short time, and having also deponed that 
 he had not written her since, and that she did not know of his be- 
 ing alive; these circumstances were held to overcome the presump- 
 tion tliat he was still in life (o). Death was inferred from the cir- 
 cumstance that the person had embarked for Norway two years be- 
 fore, and that neither the ship nor any on board of her had been 
 heard of since (p). Where an adjudication against one charged in 
 1739 to enter heir to his father was challenged in 1754, upon the 
 ground that the supposed heir was dead before the date of the 
 charge, the Court, on advising (ex parte) a proof of a current report 
 that the heir had sailed from Philadelphia in a ship bound for the 
 West Indies which had never been heard of afterwards, and was re- 
 ported amissing, together with hearsay that the wife of the master of 
 the vessel had married again, sustained the reason of reduction (r). 
 In June 1806 a person sold an estate for a price payable by instal- 
 ments. In the following autumn, having entered the service of 
 the East India Company, he sailed for India. The ship was never 
 heard of after passing the Cape of Good Hope ; and the general be- 
 
 (wi) For a strong illustration of this (although a questionable decision) see Aitken v. 
 Goodlets, 1707, M., 5553, M., 12,046. Several instances where repute of death was re- 
 garded are given below. (n) French v. E. Wemyss, 1G77, M., 12,644. See also 
 Glendinings v. Earlston, 1631, M., 12,725. (o) Sands v. her Tenants, 1678, 
 M., 12,645. This, being an action of mails and duties by the widow as liferentrix on 
 her husband's death, was a favourable case for the pursuer. (p) Erskine r. 
 Stephen, 1622, M., 11,656. (r) Forrester v. Boucher, 1670, M., 11,674. The 
 report does not state when the vessel sailed.
 
 §305. PRESUMPTION OK IJKK. 2*29 
 
 licC was that shr liml romidci-cil at sou ami thai all (Hi Ixjard liad 
 pcrislied. One of the instalments, 1)CC0iiiing- duo at Whitsunday 
 1808, was lodged by the imrcliaser with the seller's hanker. On 2d 
 Novomhcr 1808 the seller's hrother was served heir to him on the 
 evidence of two witnesses deponing to the projtinrjnily and the he- 
 licf of the family that tlie seller died in India. The case came be- 
 fore tlic Court in January 1811, in a suspension hy the purchaser 
 of a threatened charge for payment of the instalments then due. 
 Their Lordships considered the case a very doubtful one; and on 
 their suggestion it w^as arranged by the brother finding security to 
 warrant the purchaser against all risk from the payment, the bond 
 of caution being limited to seven years from 24th January 1811 (s). 
 § 305. Again, where trustees had been appointed to divide a 
 sum at the deatli of two annuitants for £10 cacli, and it appeared 
 that lioth of them had gone abnjad, the one as a iirivate soldier, and 
 the other as a common sailor, that neither had been heard of for 
 thirty-two years, and it was reported that the soldier had been 
 wounded in the battle of Walcheren, — the Court, after advertise- 
 ments in Scotch and English newspapers, allowed the sum to be 
 paid to the party ultimatel}' entitled to it, on a personal bond being 
 granted by him and his two sons to make tlie annuity and arrears 
 furthcoming, if the annuitants claimed them {(). In another case 
 the Court allowed the substitutes in certain legacies to uplift them 
 on caution, where the legatees first favoured were two brothers, 
 sailors, one of whom had been absent for thirty-four, and the other 
 for twenty-four years, the latest intelligence from the former liaAing 
 been about one year after his departure (during which year he had 
 written several letters home) , and no letters having ever been re- 
 ceived from the latter («). A similar course was followed as to a 
 person wlu) had left twenty-five years before for the East Indies, 
 and was reputed to be dead (x). So Avhere a legacy was left to one 
 who was in the Eastern seas at the time, and failing him to his sis- 
 ter, the Court, on account of his absence for seventeen years witli- 
 out any intelligence, allowed her representatives to uplift it on 
 caution (//). In another case a question arose in 1849, as to the 
 succession by eonipiest to James, the tliird (ddest of five brothers, 
 Andrew, Samuel, dames, ]\rattlie\v, and William. SanuiLd. who was 
 
 («) L. Ashhurton v. Baillie, 7th February 1811, F. C. (0 Stirling v. Mac- 
 
 kenzie, lSt7. 9 D.. 023. ()/) Fettes v. Gordon. 1825. 4 S., 149. The ages are 
 
 not reported. (x) lly.sloi, /■. Gordon. 1830. 8 S.. 019. Age not reported. 
 
 {!/) Rutliven v. Clark. 1(528, M., 11,029, 8048. It wa.s said that tlie expense of a 
 proof would have exhausted the legacy.
 
 -30 PRESUMPTION OF LIFE. § 30')- 
 
 a seaman in the royal navy, had not been heard of since 1814 ; if 
 alive at the date of the action, he would have been in his sixty- 
 third year; Andrew had predeceased James; and Ins daughter, on 
 the footing that Samuel also had predeceased James without issue, 
 made up a title as heir of conquest to James, and entered into pos- 
 session. It appeared that there Avas a connnon belief in Sanmel's 
 death, and that repeated advertisements in the newspapers had 
 failed to bring forward either him or anv one claimino; to be his 
 heir. The two younger brothers, Matthew and AVilliam, having 
 applied to tlie Court for the appointment of a factor loco absentis to 
 Samuel, who, they contended, might be alive, or might have left 
 issue, the application was refused on Andrew's daughter finding 
 caution for the full rents drawn and to be drawn by her, which she 
 would have to repeat in case it turned out that she was not the true 
 heir. The Court gave no sanction to her selling the estate ; and 
 she would have had consideral)le difficulty in doing so, in conse- 
 quence of the state of the title (z). 
 
 § 306. Again, where it was proved that a man had gone to To- 
 bago as a sailor, had soon afterwards taken service on board a priva- 
 teer, there being hearsay that a boat in which he was had been 
 swamped, and that he had been drowned ; and where he had not 
 ])een lieard of for twenty -nine years, and his family, after making- 
 inquiries, believed him to be dead, the Court allowed his heir (with- 
 out finding caution) to uplift a capital sum which belonged to 
 him («.). So where decree had been obtained against a woman for 
 payment of articles furnished for her house-keeping, and she sus- 
 pended a threatened charge thereupon on the ground that her hus- 
 band had not been called in the action, it was held a relevant an- 
 swer that he had been out of the country for twenty years, and that 
 she was reputed a widow (6). In a claim for terce and jus relictae 
 it was held sufficient to infer the husband's death that one of the 
 same name, and appearing from the circumstances to be the same 
 person, had been hired to go to the East India Company's factories 
 in Bengal about nineteen years before, and had not been heard of 
 since, that he was commonly reputed to be dead, and that the pur- 
 suer had on that footing been paid part of his wages by the India 
 Company (c).^ 
 
 [z) Chalmers v. Carruthers, 1849, 11 D., 1359. («) Campbell v. Campbell's 
 
 Tr., 1834, 12 S., 382. See the same case ten years earlier, stqjra, \ 301. 
 
 (/;) Hay V. Corstorphiue, 1063, M., 5956. (c) Hogg v. Hume, 17U(1, M.. 12,645. 
 
 - A mau was, in 1858, held to be dead who in 1856 kff New Zealand I'.r Sidney :
 
 § 301). PRESUMPTION OF LIKE. "ilU 
 
 § 307. It is nut u sufficient gruund tVir inferring deatli, tliat the 
 person's lieir lias expede a service to liini (t/), or lias taken out con- 
 firmation as his executor (e), both of these proceedings being ex 
 'parte. Tliey may, however, be relevant circumstances in the 
 case (/) ; and under the modern practice the publication which 
 precedes a service makes it a more valuable adminicle of evidence, 
 than was a service in the old form (^). 
 
 § 308. The greatly increased communication with most foreign 
 countries, and the admirable postal arrangements over nearly the 
 whole world, ought, in most cases, to make a shorter period of ab- 
 sence sufficient to infer death, than was recognised in former times. 
 
 § 309. In England the presumption of life ceases with seven 
 year's absence, on the analogy of the statutes 1 James I, cap. 11, 
 § 2, regarding bigamy, and 19 Charles II, cap. G, § 2, regarding 
 
 [d) L. Ashburton v. Baillie, 7th Febniary 1811, F. C— Campbell u. Lamout, 1824, 
 3 S., 145— Rci.l V. Brown, 1834, 12 S., 278. (e) French v. E. Wemyss, 1C77, 
 
 M., 12,044— Bannermaus v. Baunernian, 1738, M., 11,602- Burn v. Ogilvie, 1753, M., 
 11,067. (/) Cases in two preceding notes. {g) 10 and 11 Vict., 
 
 c. 47, I 7. 
 
 the ship never having reached Sidney or buen heard of again ; Norris, 1858, Swab, and 
 Trist. Prob.. p. 0. 
 
 Mr Fairhohne, of Chapel, died in May 1853. He destined lii.s personal estate to his 
 nephew. Lieutenant James Fairholme, and failing him, to George Fairholme, brother 
 of James. George Fairholme claimed the personal estate on the ground that hi.s brother 
 had predeceased the testator. Lieutenant James Fairholme left England in May 1845 
 along with Sir John Franklin's expedition to the Arctic Seas. The party consisted of 
 one hundred and thirty-three individuals. They wintered in Beachy Island ; but were 
 not heard of afterwards till 1854; when Ur Eae, a chief factor in the Hudson's Bay Com- 
 pany's service, was told by the Esquimaux that, about the spring of 1850, they liad 
 seen a party of about forty white men near the north shore of the island called King 
 William's Land ; that they seemed thin, and were supposed to be in want of provisions; 
 and the Esipiimaux (whose language none of them could speak) understood that their 
 ship had been crushed by the ice, and that they were going in search of deer. At a 
 later date, in the saine season, the dead bodies of thirty persons were discovered by the 
 Esquimaux on the continent, at a place supposed to be Back's River. Various articles 
 were lying beside them ; and, among other things, a silver fork which was deponed to 
 £is having belonged to Lieutenant Fairholme. Fresh bones and feathers of geese were 
 found near the dead bodies ; and it was proved that the wild fowl did not, in their 
 migrations, reach that part of the coast till about the end of May. "Witnesses conver- 
 sant with the locality ileponed that it was nearly impossible that any of those who ac-, 
 compauied the expedition could iuive survived so long as 1853 without having been heard 
 of. In these circumstancis the Court ordered jjayment to George Fairholme of his 
 uncle's personal estate, without requiring caution ; Fairholme v. Fairliolme's Trs., 1858, 
 20 D., 813. Ill an English eas(>, Sir John Ivomilly held that a sailor who formed one of 
 Sir John Franklin's expedition, and who. when he sailed, was young and strung, hud 
 survived January 1860; Ommaney v. Stihvell, 1856. 23 Btavaii's Ch.. 328.
 
 232 PRESUMPTION OF LIFE. § 309- 
 
 leases ; iu both of which that period is prescribed (h). But this 
 rule raises no inference as to the time of the supposed death (i).^ 
 
 § 310. Puzzling questions of succession sometimes arise where 
 persons died from the same cahimity, as in cases of shipwreck, 
 battle, suifocation, and the like. Some codes have laid down gene- 
 ral rules of presumption for such cases, where the circumstances do 
 not indicate which person was the survivor. Thus in the Roman 
 law, where a father and a son fell in the same battle, the son was 
 held to have survived ; and where a father, or mother, and son 
 perished in the same calamity (cf/., shi})wrcck), the question de- 
 pended on whether the son was above puberty ; if he w^as, he was 
 held to have survived ; if not, his father or mother was presumed 
 to have outlived him Qc). In the case of a husband and wife, the 
 former was held to have survived (?). By the Code Napoleon (m), 
 " if those who perished together were less than fifteen years old, 
 the older of them is presumed to have survived ; if they were both 
 beyond sixty years old, the younger is presumed to have survived ; 
 and if one of them was within fifteen and the other beyond sixty, 
 the former is presumed to have survived ;" if they were both with- 
 in these extremes and of different sexes, the male is held the sur- 
 vivor, unless the difference between the ages exceeded a year ; and 
 if they were of the same sex, the law, favouring the order of nature, 
 holds that the younger died last. In Mr Beck's valuable treatise (n) 
 the medical jurisprudence of such questions is fully considered, and 
 the decisions both in the English and foreign Courts are carefully 
 analysed. It will there be seen that in some cases the less robust 
 persons usually survive — as the youngest where all are overtaken 
 with thirst, and the women, where both men and women die of 
 suflTocation from carbonic acid gas. Important evidence may often 
 be derived from the relative positions of the bodies ; and in every 
 
 (h) See 1 Phil., 449— Best on Presump., 190. (i) See 1 Phil., ib.— Best 
 
 on Presump., 191. {k) Dig., L. 34, T. 5 (de rebus dubiis), 9, ^J 1, 4, and L. 
 
 34, T. 5, 22. [l) lb., L. 34, T. 5, 9, { 3. (m) Code Civil, § 720, 
 
 1. 2. (n) Beck's Med. Jurispr., 389. 
 
 3 Best on Evidence, 3d ed., 509. This presumption, however, does not hold where, 
 from the circumstances of the case, there was no probahility that the person would have 
 been heard of though alive; Bowden v. Henderson, 1854, 2 Smale and Giflf. Ch., 360. 
 
 Probate in England was granted of a will as by a widow who died in February 1857. 
 Her hu.sband had gone to America, and had reached Albany, New York, in April 1850, 
 and liad not been heard of since, though inquiries had been instituted; Elizabeth How, 
 1858, Swabey and T:ist. Probate, 53,
 
 § 3T2. PRESUMPTION OIM.IFE. 233 
 
 case there should be an iiKiniry into tin; existence of any disease or 
 ])eciiliarity of constitution tending- to accelerate death. 
 
 § 311. Several cases have occurred in Enj^liind on this suhject, 
 but without bringing out any tixed presumptions ; and the result 
 seems to be, that each question must be remitted to a jury for de- 
 cision on its own circumstances (o). A recent writer {p) on that 
 law remarks, that if the phiintilT can show no I'mther evidence than 
 the assumption that from age or sex one party struggled longer 
 than another, it seems that no decree would be given in favour of 
 the claim.* 
 
 No authority in the law of Scotland has been found on these 
 points.^ 
 
 CHAPTER III— OF THE PRESUMPTION PATER EST QUEM NUETIAE 
 
 DEMONSTRANT. 
 
 § 312. Law justly presumes the legitimacy of all who are con- 
 ceived during lawful wedlock, according to the maxim of the Koman 
 iwuQi^ pater est quern nuptiae demonstrant (a). This presumption 
 applies only whore tliere was such an interval between the marriage 
 and the birth tliat, by the laws of nature, the conception can reason- 
 ably be believed to have taken place during marriage (&). 
 
 (o) Best on Presumptions, p. 193, 201— Taylor. 130— Sec Sillick r. Booth, 1 Young 
 and Col., 117, 126, per Knight Bruce, Y. C. (;^) Best on Presumptions, 
 
 p. 201. 2. (a) Dig., L. 2, T. 4, 5— Stair, 3, 3. 42— Ersk., 1, 6, 49— Buukt., 1, 2, 
 
 3_\Vallaco, 2G4— Tait, 488. This presumption is fully and ably treated of by Mr Eraser, 
 2 Pcrs. and D(mi. Rel., 1, et seq. (6) Authorities in note (a). In England a 
 
 * In Wing r. Angrave, 1860, House of Lords, 30, L. J. Ch., 65, it was held tliat 
 when several persons die from the same cause, there is no presumption either that 
 they all died at the same time, or that any one of them died before the others. When, 
 in a wri ck at sea, a husband and wife were swept overboard and drowned, the Court 
 licld that they could not decide which of them died first ; Underwood v. "Wing, 1855, 
 24 h. J. Ch., 293— Best on Evidence, 3d ed., 512. 
 
 5 Tlie Mtrcliant Sliijiping Act's Amendment, 1862, 25 and 26 Vict., c. 63, enacts (g 
 21), tluit in all proci-cdings for recovery of wages, as having been due to seamen or ap- 
 prentices lost with tlie ships to which they belonged, if " it is sliown by some official 
 return produced out of the custody of the Registrar General of Seamen, or by other 
 evidence, that tlic ship has, twelve months or upwards before the institution of tlie pro- 
 ceeding, left a port of departure, and if it is not shown that she has been heard of with- 
 in twelve months after such departure, she shall be deemed to have been lost, with all 
 hands on board* either immediately after the time she was last heard of, or at such 
 later time as tlie Court hearing the case may think probable."
 
 234 ?HEBVMPTlO:s PATER EST §313- 
 
 § 313. The presumption has no place in proving the paternity 
 of one who claims legitimation per subsequens maMmonium (c). 
 Lord Stair lays down that it holds whether the marriage is regular 
 or clandestine, provided the parties could have contracted a lawful 
 marriage (d). It also seems to apply Avhere the children were born 
 during a cohabitation which followed on a promise of marriage (e). 
 But where a man, sued to fulfil a promise of marriage followed by 
 copula, admitted that he had had intercourse with the pursuer, and 
 that on her becoming pregnant he had, by her urgent desire, given 
 her a An'iting acknowdedging that he had pre\aously promised to 
 marry her, but where he stated that he had not had connection with 
 her afterwards, — the defence to the action being that the pursuer 
 had subsequently become pregnant to another man, — the Court held 
 that the presumption patei^ est, &c., was not sufficient to jDrove that 
 the second child had been begotten by the defender, and they there- 
 fore required the pursuer (apparently before answer) to state whether 
 she could prove any cohabitation after the date of the writing (/). 
 This case justly recognises a distinction between a promise which 
 has been followed by cohabitation, and a promise with isolated 
 coitus; holding that tlie latter is not sufficient to raise the presump- 
 tion in question.^ 
 
 § 314. Of course this presumption applies if the husband has 
 had access to his wife at the commencement of the ordinary period 
 of gestation. As, however, exceptional periods not unfrequently 
 occur, the jjresumption covers these within certain reasonable 
 limits ; because law both presumes against adultery and in favour 
 of legitimacy. Accordingly, while the common period of gestation 
 
 child is presumed to be legitimate altliougli born within a day after the marriage ; and 
 the shortness of the interv^al is only an element in the evidence by which the presump- 
 tion may be overcome ; Co. on Litt., 244, a — 1 Eolle's Abridg., 358, voce Bastard, letter 
 B— 1 Blackst. (Stewart's 3d ed.), 570— King v. Luffe, 1807, 8 East., 193, 208. The 
 ground for this anomaly is, that the English law not admitting legitimation per subse- 
 quens matrimonium (as Scotch law does), yet refuses to bastardise the cliild of parents 
 who were married during its gestation ; Blackst., ut supra. 
 
 (c) Innes v. Innes, 1835, 13 S., 1050 ; affd. 2 Sh. and M'li., 417. {d) Stair, 
 
 3, 3, 42, and 4, 45, 20. (c) Stair, supra; and see Craig, 2, 18, 19, 21. 
 
 (/) Baptie v. Barclay, 1665, M., 8413, Gilmour's report. The report by Stair (M., 
 ib.) does not state that the proof was only before answer, but bears broadly, " the Lords 
 found that the presumption was not suiScient unless it had been a formal marriage." 
 
 1 In the case of "Walker v. Walker, 1857, 19 D., 290, a person born before the mar- 
 riage of his mother was held to be the son of the man she afterwards married, although 
 his mother, wlien of an advanced age, and after her husband's death, emitted a declara- 
 tion to the contrary.
 
 § 314. QUEM NUPTfAK DEMONSTRANT. '2.?)i) 
 
 is 280 days (tliat is nine caleiKlur iiKUitlis imd ;i week, or ten lunar 
 niontlis) (j/), the presumption in ipiestion applies ii" the liuslniml 
 has had access any time not later than six complete lunar months(A), 
 which is a week or two shorter than the period which physiologists 
 consider necessary for maturing a living cliild (/). 
 
 Protracted gestations are rare in comparison with those which 
 are accelerated ; and therefore the other limit to the presumption 
 is only ten months (/.'). 1 1 has not been settled whether this means 
 calendar or lunar months; hut the weight both of authority and 
 reason is thonght to be in favour of the longer period (/). If the 
 niilv ujiporUuiities for access have been cillier later or earlier than 
 
 {g) Bock, Mod. Jurisp., 35G— Taylor, Med. Jurisp., 5G8— Evidence in Gordon Peer- 
 iiKo case, and in Innes v. Innes, 1837, 2 Sh. and M'L., 417, 13 S., 1050. 
 
 (A) Stair, 3, 3, 42— Bankt., 1, 2, 3— Ersk., 1, 6, 50— Wallace, 264— Tait, 489—2 
 Fraser, 1 — Routlcdgo v. Can-utliors, 19th May 1812, V. C, per L. President — Lcpper v. 
 Brown, 1802, Hume D., 488— See also JoLson v. Reid, 1832, 10 S., 504; 7 F. C, 45G. 
 The Roman law recognised six solar months; Dig., L. 1, T. 5, 12. Our law has from 
 favour to legitimacy substituted lunar montlis ; Ersk., ut supra. 
 
 (i) It seoms to bo nearly agreed among medical jurists that a seven month's child 
 may live and thrive, that a child of less than six months will not survive, except pcr- 
 hai>s for a few minutes, and that a child born between six and seven months of concep- 
 tion will be sickly but may live. Conseciuently, if the child is fully matured and 
 healthy, there is very strong ground for doubting whether it could have been conceived 
 less than seven calendar months before delivery ; Beck, 362 — Taylor, 518, et seq. Ac- 
 cordingly, in Heathcote's divorce bill (1851, 1 Macq., 277), where the wife's adultery 
 was proved, and she bore a full-grown child six lunar months and one week after her 
 husband's return from abroad to her sociot)', the bill was passed, and contained a clause 
 bastardising the cliild. But in M'Loan's divorce bill (1851, 1 Macq., 278), where it was 
 clearly proved that the wife had committed adultery before leaving England to join her 
 husband in India, and she bore a child seven lunar months and a day after she rejoined 
 him, the House of Lords passed the bill, but refused to introduce a bastardising clause. 
 As no one attends the House to protect the interests of the child, their Lordships require 
 a strong case to be made out before they introduce a clause of bastardy ; 1 Macq., ut supra. 
 
 (/t) Bankt., 1, 2, 3— Ersk., 1, 6, 49— Tait, 489—2 Fraser, 1. See also next note. 
 Stair, 3, 3, 42, somewhat loosely mentions the presumptive period as at nine, ten, or 
 even eleven months. 
 
 (I) As tho presumption was originally derived from the civil law, the solution of this 
 question may partly depend on tlic mode of calculating time which that law referred to. 
 The Digest (L. 1, T. 5, 12— L. 38, T. 16, 3, g 11, 12) lays down both the six and ton 
 month's periods on the authority of Hippocrates, who defines the month at thirty days. 
 (Hipp, departu octomcstri {adfinem), Frankfort ed., 1596, page 222.) This is consistent 
 with the time pointed at by the Twelve Tables, which decree that a child born ten months 
 after the husband's death shall bo hold legitimate. (Table 4. Law 3. See Bouchaud 
 sur XII Tab., tom. i, \>. 478.) Taking tho Greek calendar at the date when the tables 
 wore conipilod (B.C. 450), months of thirty days will bo tho rule; ami by tlie Roman 
 reckoning the result will be nearly tlie same- oigiit of tlie Roman months alternating 
 thirty one and twoiily-uine days, and of tlic remaining four months, one numbering
 
 236 PRESUMPTION PATER EST. § 314- 
 
 these periods respectively, the presumption in question does not 
 apply, and therefore the legitimacy of the child must be proved ; 
 so great a departure from the usual period of gestation reversing 
 the hurdcn of proof (m). 
 
 § 315. In actions of filiation of children born liastards the Court 
 have assoilzied the defender, when the pursuer's case depended on 
 an alleged gestation of 301 days (w), of 306 days (o), and of eleven 
 lunar months— 308 days {p). Bo an admitted connection, five 
 months before delivery, was held not to raise a semiplena prohatio 
 of paternity (r); while in another case, the unusual period of gesta- 
 
 twenty -eight and the other three twenty-nine days. (Smith's Diet, of Greek and Ro- 
 man Antiq., Art. Calendarium, 2d ed., p. 229.) 
 
 According to TouiUer, the Roman law meant months of thirty days. (Be droit civil, 
 torn, ii, pp. 113, 115.) This is also the opinion of Attorney-General Copely (Lord Lynd- 
 hurst)'in summing up officially, and not as counsel for either claimant, the evidence in 
 the Gardner Peerlige case. (Separate Report, p. 328.) Bouchaud, citing Hippocrates 
 and Galen, holds that solar months were intended, and he defines them at thirty days 
 ten hours 'and thirty minutes (Sur XII Tables, tom. i, p. 481, 2); and Erskine takes 
 the same view (B. 1, T. 6, ? 50), which is supported by the Cod. Justin., L. 7, T. 63, 
 5, pr. Opposite opinions on the question whether ten calendar or ten lunar months form 
 the rule, were expressed by the Lords Ordinary Gillies and Meadowbank in an import- 
 ant case, which the Court decided on other grounds; Sandy v. Sandy, 4th July 1831, 
 2 S., 406 (new cd.). 
 
 Independently of the Roman law, there seems to bo good ground for fixing the time 
 at ten calendar months ; because the analogy of the six month's period for the accele- 
 rated delivery .requires the usual period of ten lunar months to be extended, so as to 
 cover cases of occasional protraction. This view is supported by a case of filiation where 
 the Court found a party liable for the aliment of a bastard, although the only alleged 
 or proved connection was exactly ten calendar months before the birth ; Morrison v. 
 Kirk, 7th February 1795, not reported, but cited at length in the pursuer's "Informa- 
 tion " in Sandy v. Sandy, supra. 
 
 Medical jurists are not agreed as to the probability, or even the existence of cases of 
 protracted gestation. The correct view seems to be that a delay of two or three weeks 
 beyond the ordinary period is not unfrequent, and that there are well established cases 
 of gestation for forty-four and even forty-six weeks ; that is, four to six weeks beyond 
 the common period; See Taylor, Med. Jur., 528, et scq.—B&ok, Med. Jur., 363, et seq.— 
 The medical evidence in the Gardner Peerage case, and in Innes v. Innes, 1837, 2 Sh. 
 and M'L., 417, 13 S., 1050, was very contradictory on this point. 
 
 By the Code Civil (§ 315), " the legitimacy of a child born three hundred days after 
 the dissolution of the marriage cannot be contested." 
 
 (m) In the Gardner Peerage case, where the period founded on was three hundred 
 and eleven days (eleven lunar months and three days) a deal of proof was gone into, 
 and the House of Lords, without entering into the discussion of the uUinium temims, de- 
 cided against the legitimacy. See also Reid v. Jobson, 1832, 10 S., 594, 7 F. C, 456, 
 S. C— 2 Eraser, 5. (w) Innes v. Innes, 1837, 2 Sh. and M'L., 417, affirming 
 
 13 S., 1050. ' (o) Boyd v. Kerr, 1843, 5 D., 1213. (p) Steward v. 
 
 M'Ke'and, 1774, M., 11,664, 5 Sup., 554, Hailes, 595, S. C. (r) Paul v. Gil- 
 
 mour, 1824, 3 S.. 368. See also Aitken v. Mitchell, 1806, Hume, 489— Le per v. Browu,
 
 §817. (,>rf:M xi'i'TiAi-: i>KM(>xsrii.\.\T. 2H7 
 
 tiou alleged (six lunar mouths auJ twenty-two days) was one of the 
 grounds on which the Court held the paternity not proved, the child 
 heing full grown (.s). An ()pp(j.site result however was arrived at 
 where the defender had opportunities of access eight lunar months 
 (except four days) hefore the l)irth (/) ; and a proved connection 
 exactly ten calendar months hefore hirth, with the woman's oath in 
 suppleniciit (liat the child was then Legotten, was held sufficient (m). 
 In all such cases, therefore, the unusual period of alleged gestati(jn 
 is held to be an important element in the pn)of, jnaking it likely 
 that some other person than the defender had hegot the diiM 
 about the ordinary period. It therefore lays the onus xrroharuU on 
 the mother ; whereas in questions of legitimacy the presumption 
 jjater esf, &c., protects all cases within the prescribed periods, al- 
 though the circumstance of unusual gestation may be an important 
 element in the proof adduced to overcome the presumption (y).^ 
 
 § 316. Although the child of a married woman may have been 
 born during the period covered by the presumption pater est quern 
 7mptiue (hmonsfrant, tliat presumption may be overcome by proof 
 that the husband could not have begotten it. 
 
 § 317. This may arise from the husband being impotent {iv). 
 The case then assumes a very difiicult and delicate character, and 
 has generally to be solved by the medical jurist. If the husl)and is 
 dead the conditions of his organs will be important (x) ; and the 
 
 1802, Hume, 488. In Keid v. Johnston, 1832, 7 F. C, 456, a child born one day less 
 than six months after the marriage, was, after a proof, held to be a bastard. 
 
 (s) Folley v. Douglas, 1848, 10 D., 1424. {() Robertson v. Petrie, 1825, 
 
 4 S., 333. (u) Morrison v. Kirk, not reported. Lord Meadowbank's notice 
 
 of tliis case in Sandy v. Sandy, 2 S. (new ed.), 408, is corrected in the Session Papers 
 of Sandy, where the case is fully narrated. (y) See Innes v. Innes, 1837, 2 Sh. 
 
 and ML., 448, per L. Chancellor — Gardner Peerage case, supra. (w) See Stair, 
 
 3, 3, 42— Ersk., 1, 6, 50— Dig., 1, 6, 6— Tait, 489—2 Fraser, 2. (x) Dundas v. 
 
 Dundas, 1705, M., 4083— Sandy v. Sandy, 1823, 2 S., (new ed.), 406, and Sess. Papers. 
 
 2 "When a child was born seven months and a half after the first alleged intercourse 
 with the defender, and there was no proof that the birth was premature, it was held that 
 the circumstances did not raise a presumption of paternity against the defender ; Ritchie 
 V. Cunuinghume, 1857, 20 D., 35 ; but intercourse during the period of gestation, and 
 opportunity at the time of concoi)tion, will raise the presumption of paternity; Lawson v. 
 Eddie, 1861, 23 D., 876. As parties may now be witnesses, the evidence in filiation 
 cases is taken and dealt with arf in other cases, and there is now no question as to semi- 
 plena probation ; M'Bayne v. Davidson, 1860, 22 D., 738. 
 
 See, on the subject of protracted gestation, Taylor's Medical Jurisprudence, 7th ed., 
 1861, p. 610 and 624.
 
 238 PHERUMPTION PATER EST § 317- 
 
 Court could probably order such au cxamiuation {y). An inspection 
 of the husband's body during life is competent in England {z). 
 
 § 318. The presumption will also be overcome, where during the 
 whole period between six and ten months the husband was absent 
 so continuously from his wife's society that ho could have had no 
 opportunity of connection {a). Such absence, whether arising from 
 imprisonment, residence at a distance, or any other cause, must be 
 completely proved; and therefore the fact that the husband had 
 resided about twenty miles distant from his Avifo, without proof of 
 continual absence, was held not to be enough {b). It is not neces- 
 sary, however, that he should have been out of the country or beyond 
 
 seas (c). 
 
 § 319. But the illegitimacy is sometimes maintained upon cir- 
 cumstantial or moral evidence, and not on physical impossil)ility. 
 In such cases, if it is not proved by the clearest evidence that the 
 spouses had not connection during the presumptive period, the 
 child will be held legitimate, although the wife had also adulterous 
 connection, in which the conception may have taken place (cZ). The 
 status of legitimacy does not depend on a balance of the probabilities 
 whether the conception occurred during the conjugal, or during the 
 illicit, intercourse. Our institutional writers go farther, holding that 
 the presumption prevails, unless where physical causes prevented 
 the spouses from having connection (e) ; and in this they are sup- 
 ported by the unanimous opinion of the whole Court in a carefully 
 considered case ; in which, however, the point did not require to be 
 decided (/). In a later case, where the legitimacy of a child born 
 nine calendar months and twenty-nine days after the husband's 
 death was contested, the Court allowed a proof as to the state of 
 the husband from his marriage till his death, and as to the alleged 
 lewd character of his wife. The proof showed that his legs were 
 broken and much shrivelled, that one of them crossed the other, and 
 that he had been confined to bed for many years before the earHest 
 possible date of conception. A man who had for years slept in the 
 same room with him, and who knew his condition, " was of opinion 
 that it was not possible for him" to have had sexual intercourse ; 
 
 {y) It is understood that the M.S. records of the Commissary Court show several 
 examples of this practice. (z) Townsend Peerage case, 1843, 75 Journ. H. 
 
 Lords, 224. (a) Stair, 3, 3, 42— Ersk., 1, 6, 50— Tait, 489—2 Eraser, 4. 
 
 {h) Routledge v. Carruthers, 19th May 1812, F. C. ; Buchan. Rep., 121 ; 4 Dow, 392 ; 
 2 Bligh, G92, S. C. (c) Stair, 3, 3, 42— Ersk., 1, 6, 50— Tait, 489. 
 
 {d) Authorities in next two notes— Best on Presumptions, 71—1 Phillips, 443— Tay- 
 lor, 92—2 Starkie, 196. (c) Stair, 3, 3, 42— Ersk., 1, G, 50— Bell's Pr., g 162G. 
 See also Tait, 489. (/) Routledge v. Carruthers, supra, {h).
 
 §320. QI'KM NFPTIAE DEMOX^TRANT. 289 
 
 bat two wonitu wIkj had dressed liis corpse could not say tliat tliat 
 was impossible. It was also proved that the wife's character was 
 worthless, and that she liad luul intercourse with other men. The 
 Court, on advising the proof, held that the child was a bastard {g). 
 This case seems not to come witliin the strict rule ; since the proof of 
 absolute incapacity was nut complete, and the Court allowed it to 
 be supplemented by circunistcUitial evidence of a general character. 
 It has been quoted {h) as indicating a departure from the old rule 
 which ro(pnres a physical impossibility, and following the more just 
 principle now recognised in England, that in each case the qnestion 
 is, whether the jury looking to the whole evidence, moral as well 
 as physical, and having regard to the onus lying on the party alleg- 
 ing bastardy, are satisfied that the husband had not such connection 
 with the mother as by the known laws of nature could have made 
 him the father of the child (/). But although the case of Sandy 
 tends to weaken the doctrine that proof of physical impossibility is 
 indispensable, it cannot be said that the Court in deciding that case 
 expressly sanctioned the opposite principle.* 
 
 § 320. Stair, Craig, and Bankton, following the Canonists, hold 
 that the presumption ^:)a^er est, &c., may be overcome by the concur- 
 ring testimony on oath of the mother and her husband (A-). Er- 
 
 {g) Sandy v. Sandy, 1823, 2 S., 406, (new ed.), and Session Papers. 
 
 {h) 2 Fraser, 2— See also Doud v. Simpson, 1843, 9 D., 511. {i) Morris v. 
 
 Davies, 1827, 3 Cur. and Pay., 215, 5 CI. and Fin., 163, S. C— Banbury Peerage case, 
 1811, 1 Sim. and Stu., 153, and App. to Gardner Peerage case, p. 432, S. C— 1 Phil., 
 443— Best on Presumptions, 71 — Taylor, 92. The former English rule required a 
 physical impossibility in the husband to have been the father. Best and Phil., siqna — 
 2 Starlde, 196. 
 
 * Since g 319, et scq. of the text were written, the First Division of the Court have 
 held that the presumption joaie?- est, &c., may be overcome by such evidence as thoroughly 
 satisfies the mind of the Court that the child is illegitimate, although there is not any 
 proof of physical imiiossibility of connection between the spouses about the time of con- 
 ception. The evidence was chiefly conijTOScd of the declarations of the spouses, both of 
 whom had repeatedly declared the eliild to be a bastard ; and these declarations were 
 corroborated by circumstances. The proof presented the very peculiar feature, of the 
 husband having co-habited with his wife after the birth of the child ; having allowed it 
 to remain in the house ; and having even treated it with kindness. But the efl'ect of 
 this conduct on his part (which, under onlinary circumstances, would have been conclu- 
 sive of the child's legitimacy) was taken oflf by the extraordinary fact that he had treated 
 with similar kindness another child of his wife whicli unquestionably was a bastard, 
 begotten when he was absent from the country on foreign service. — Mackay r. JIackay, 
 1855, 17 D., 494.3 
 
 {k) Stair, 3, 3, 42— Craig. 2, 18, 20— Bankt., 1, 2, 3— Decretal. 4, 17, 3. See also 
 ibid.. &c.. 2, 19. 10. 
 
 3 This note is from the addenda to the first edition.
 
 240 ?RF.SVMPTK)N TATFR i:sr §320- 
 
 skinc (?) seems to liavo doubts upon this (question, but states that 
 "it is an agreed point by all writers, that if either of the spouses 
 have, before making such oath, acknowledged the child as lawful, 
 there is a right acquired to him by that ackuowdedgment, which is 
 ULit to bo taken away by any posterior testimony to the contrary." 
 These authorities show that we do not in Scotland follow the rule 
 of English law (m), Avhich, from regard to decency, refuses to allow 
 the spouses to be examined on the fact of non-access, or on facts 
 which tend to prove or disprove access. But there is good ground 
 for questioning the doctrine that either repudiation or acknowledg- 
 ment by the spouses is conclusive. It is more in accordance with 
 principle to hold that this evidence should be weighed along with 
 the other proof in the case, and should only receive that value which 
 is justly due to the testimony of the persons who are most likely to 
 know the fact, but who are not beyond the reach of either accidental 
 or intentional mis-statement {71).'^ 
 
 § 321. The conduct of the spouses toward the child is more trust- 
 worthy than their testimony on the question of his legitimacy. If 
 they have uniformly acknowledged and behaved towards him as their 
 own child, it will be hardly possible for any one, and especially for 
 either of them, to prove him to be illegitimate (0) ; whereas it will 
 be a strong circumstance of an opposite tendency that they have 
 uniformly treated him as the bastard issue of the wife's paramour (p). 
 The circumstance of the child having been uniformly treated l)y the 
 mother and her paramour as the fruit of their connection is of great 
 importance (r). Of course the best evidence of this kind is where the 
 
 (Z) Ersk., 1, 6, 49. (m) K. v. Beading, 1734, Lee's Ca. Temp. Hardwick, 
 
 79— Goodright v. Moss, 1777, 2 Cowp., 594— Cope v. Cope, 1833, 5 Car. and Pa., 604; 
 1 Mo. and Rob., 269, S. C. — Smith v. Chamberlaine, per Sir W. Wynne, Apjjx. to Gard- 
 ner Peerage case, p. 370— R. v. Sourton, 1836, 5 Ad. and EIL, 180—2 Starkie, 200— Tay- 
 l(jr, 642. But in England the husband and wife may be examined upon the date of the 
 marriage, the birth of the child, and other matters not involving evidence of non-access ; 
 same aiithorities. {n) See Innes v. Innes, 1837, 2 Sh. and M'L., 453 — Douglas 
 
 cause, 1769, 2 Pat. Ap. Ca., 143 — 2 Eraser, 7. This was the rule in the Roman law ; 
 Dig., L. 25, 3, 5, g 8— ib., L. 28, 2, 14, ^ 2. (o) Per L. Chancellor Cottenham 
 
 in Morris v. Davies, 1837, 5 CI. and Fin., 242, 246 — Le Marchant's preface (p. xviii) to 
 report of Gardner Peerage case. (jj) Townsend Peerage case, 1843, 75 Journ, 
 
 H. of Lords, 181, et seq. — Gardner Peerage case, p. 333 — Banbury Peerage case, Appx. to 
 ib. — Morris v. Davies, supra — compared with Routledge v. Carruthers, 19th May 1812, 
 F. C, Buchanan's Rep., 121 ; affd., 2 Bligh, 692— Bankt., 1, 2, 3. (r) It formed 
 
 a main branch of the Townsend Peerage case, where the presumption pater est, &c., was 
 
 * See Walker v. Walker, su2)ra, ? 313, note 1, and Mackay v. Mackay, supra, § 319, 
 note *.
 
 § 324. QUEM NUPTTAE UEMONSTRAXT. '- + 1 
 
 cuiiducL ul butli tlic spuiLscs and nl the puraiiiuur .shows thai they 
 all regarded the child as the fruit of the illi(dt intercourse. Accord- 
 ingly, Lord Chancellor Cottenhani observed with regard to certain 
 evidence of this nature, " Tliese are the unequivocal acts of the only 
 three persons who could have what may be called knowledge of who 
 was the father of the child, ;ill r(»ii(uriiii-- in this, that he was not the 
 child of Mr Morris (the liushand). Can the conduct of any one of 
 the three be reconciled with the supijosition that it was his child, or 
 could possibly be his?" («) 
 
 § 3*22. The declarations of these parties will consequently be 
 admitted wlien they form part of their conduct, as their speaking to 
 and aliout till' iliild as legitimate or the reverse, or (as happened 
 in one case) wliere the husl»and reproached his wife with having 
 given birth to the child (t). But a line ought to be drawn between 
 such evidence and hearsay of independent verbal statements of these 
 parties; which should not be received indiscriminately while the 
 persons who emitted them are alive; because, in that case, they ouglit 
 to be examined as witnesses (w). 
 
 § 323. The circumstance that the mother concealed the birth 
 from her husband leads strongly to the inference that the child is 
 illegitimate {iv). In England the presumption of legitimacy does not 
 apply where the s^wuses lived apart under a divorce a mensa et tJioro ; 
 since law presumes that they obeyed the decree of the Court which 
 separated them (x). This rule has not been recognised in Scot- 
 land (//). In neither country does a voluntary contract of separa- 
 tion exclude the presumption ; although, of course, it may bo an 
 important circumstance in a proof of bastardy. 
 
 § 324. The presumption pafrem esse, &c. , is strengthened by the 
 circumstance that the child possessed the status of legitimacy, and 
 that his opponent wittingly delayed to challenge it (2). And, on 
 the other hand, the circumstance tliat llie child acccptt-d letters of 
 legitimation from the Crown was held to be prejudicial to his 
 right {a). 
 
 held to be overcome ; see 75 Jourii. H. of Lords, 201, e( seq. — Sec also Inncs v. Innes, 
 supra — Morris v. Davles, supra. (s) Morris v. Danes, supra. {t) Morris v. 
 
 Davies, supra. • (m) Supra, I 84, 92. This view is favoured by the observations of 
 
 the Lord Chancellor in the Gardner Peerage case (p. 333) and Sir W. Wynne in Sniythe 
 V. Chamberlayno, 1792, Appx. to ib., 370. But see Inues r. Innes, «//>ra— Morris t-. 
 Davies, supra. («•) See Banbury Peerage ca.so and Morris v. Davies, supra • in 
 
 both of which this cirouiustauce occurred. See also 2 Fraser, 7 — Code Ci\-il, § 313 — 2 
 Touiller, 125. (2) Bull, N. P., 112— Best on Presumptions, 71— Taylor, 02— St 
 
 George v. St Margaret, 1 Salk., 123. (y) Bell's Pr., § 162G. {z) Stair, 3, 3, 42— 
 
 Cases in Mor., 12,635, 6, 7—2 Fraser, 8. (a) L. Advocate v. Craw, 1G69, M., 2748. 
 
 VOL. I. Q
 
 •24"2 PRESUMPTIONS FKO.M POSSESSION. § 325- 
 
 § 325. Iniportaut evidence iniiy be derivetl IVom the venfris iii- 
 spectio, especially where a Avidow states that she is pregnant of a 
 posthumous child (b). The resultof an extrajudicial inspection has 
 therefore been admitted (c). But it is believed that the Court can- 
 not order the examination (d).^ 
 
 § 326. A slighter proof will suffice to overcome the presumption 
 pater est quern nuptiae demonstrant in an action against the alleged 
 paramour for aliment of the child, than in a proper question of the 
 child's status; and, if the Court find the paramour liable in ali- 
 ment, they will reserve entire the question of stattis as regards tlie 
 child (e). 
 
 CHAPTER IV. — OF PRESUMPTIONS FROM POSSESSION. 
 
 § 327. As corporeal moveables are transferred by every species, 
 of alienation without a \mtten title, the possessor of them is pre- 
 sumed to be the proprietor (a). This presumption maybe overcome 
 by i^vooi prout dejure. When the proof is by witnesses, it must not 
 only show that the moveables once belonged to the person seeking 
 to recover them, but that his possession terminated in such a way 
 that the subsequent possessor could not have acquired a right of 
 property in them (&). " If I have a watch, it is not relevant for the 
 
 (h) Dig., L. 25, 4. In England the heir of a deceased proprietor may force the 
 widow to undergo inspection, if she asserts that she is pregnant ; 1 Blackst. (Stewart's 
 23d ed.), 570— Macpherson on Infants, 568. (e) Jobson v. Reid, 1832, 10 S., 
 
 594 ; 7 F. C, 456, S. 0. {d) It was ordered in Ross v. Gray, 1669, M., 16,455, 
 
 where there was strong ground for suspecting the widow's virtue. But see De Grosberg, 
 1765, M., 16,456, and L. Advocate v. Foulden, 1732, M., 16,456. The statute 2 Rob. I, 
 cap. 25, requires a woman, who pleads pregnancy in suspension of punishment, to 
 undergo inspection. (e) Reid v. Jobson, supra— Dig., L. 25, 3, 5, § 8, 9. 
 
 (a) Stair, 2, 1, 42— ib., 3, 2, 7— ib., 4, 30, 9— Ersk., 2, 1, 24— Bell's Pr., g 1314— 
 More, 150 — Tait, 307, 483. Accordingly, a person living in the house with another is 
 presumed to be the proprietor of money and clothes, &c. kept in a chest which belongs 
 to that other person, but of which the lodger keeps the key ; Taylor v. Ranken, 1675, M., 
 9118. (J) Authorities in note (a)— Scott v. Fletcher, 1665, M., 11,616— Scott v. 
 
 Elliot, 1672, M., 12,727— Geddes v. Geddes, 1678, M., 12,730— Forsyth v. Kilpatrick, 
 1680, M., 9120— W'ilson «;. Tours, 1680, M., 11,090— Russell v. Campbell, 1699 (Fount.), 
 4 B. Sup., 468— Ferguson v. Officers of State, 1749, M., 11,618. 
 
 5 It is thought that the Court may, in certain cases, competently make such an 
 order when the woman is a party to the suit ; but not when she is not, except in the 
 case of a criminal prosecution ; Davidson v. Davidson, 1860, 22 D., 749.
 
 § 328. PRESUMPTIONS FKOM POSSESSION. 243 
 
 Wcitclimaker to say, 1 oltcr to jjrove that the* watch was iniiie hist 
 week, to give him rei vindications in; Init lie must prove quoniodo 
 desiit jjossidere, else it is presumed to be mine who now have it ; for 
 the dominion of moveahlos transmits without writ, and ofttimes witli- 
 out any witnesses present, ami therefore, ere you can recover them, 
 you must first prove that you Itjst the possession clam, vi, or preca^ 
 via, or hy some title not alienative of the proi)erty, as loan, or the 
 like" (c). This rule applies \uA only to those smaller articles which 
 pass from hand to hand, hut even to an article of considerable bulk, 
 as a thrashiiiu- mill. Accordingly, where a tenant had been removed 
 under a declarator of irritancy and decree of removing, and on 
 his removal greatly in arrear of rent the landlord took possession 
 of the thrashing mill on the farm, and sold it to the incoming 
 tenant, by whom it Avas possessed without challenge for five years ; 
 a creditor of the old tenant having attempted to carry off the mill 
 by a poinding, the Court sustained tlie possession as sufficient to 
 presume ownership, and refused to require the landlord (wdio was a 
 party to the action) to prove an alleged contract with the former 
 tenant, under which he took the mill in part payment of the arrears 
 of rent {d)} 
 
 § 328. The presumption may also be overcome b}- contrary in- 
 ferences from the facts of the case, as by proof that the possessor 
 is a carrier or shipper of goods (e), or is the servant or agent of the 
 party wdio seeks to recover the goods, and who is a dealer in goods 
 of the kind (/). So an executor seeking to recover moveables al- 
 leged to have belonged to his ancestor, will overcome the presump- 
 tion arising from possession, if he proves that the goods W'cre in 
 bonis defuncti at his death ; which is fairly held to throw the bur- 
 den of proAang a just title on the party wdio subsequentl}^ acquired 
 them ((/). And where a widow, having continued in possession of 
 her husband's moveables, entered into a second marriage, her child- 
 ren by her first husband were preferred in a claim for those articles 
 
 (c) Russell V. Campbell, siipra. {d) Sharpe v. Smith, 1832, 11 S., 38. 
 
 (6) W^irramler v. Thomsons, 1710, M., 10,009— Tait, 48G. (/) CiUleu v. 
 
 Stewart, 1833, 11 S., 733— Turner v. Gibb and M-Donald, 1830, 4 W. S., 154, atKrming 
 5 S., 358. (y) luglis r. Inglis, 1070, M., 12,727— Semplo v. Givan, 1G72, M., 
 
 12,117— Hume v. Livingstone, 1G78, Mor. Sup. (Stair's Decisions), p. 81— Stair, 3, 2, 7. 
 
 1 Possession of a shii). and consequent right to tlie freight, canmjt be acquired by a 
 mortgagee, by intimation of liis mortgage, or by mere intimation that he takes possession. 
 He must take possession by some overt act ; such, for example, as putting a man on 
 board; Duncan v. Don, 1861, 23 D., 544— Cato i>. Irving, 5 Be Gex and Smale, 210. 
 
 Q2
 
 244 PRESUMr'rioNs fko:\i I'ossessiox. § 328- 
 
 ■\vliicli were proved to have beloni;ed to their father at his death (Ji). 
 In one case the following facts appeared — Cnnninghaiu gave Aitken- 
 liead the custody of curious jewels of considerable value, conform 
 to inventory under the depositor's hand, lie then left the country, 
 drew bills on Aitkenhead, and died abroad. Aitkenhead transferred 
 the bills and the custody of the jewels to Kainsay, taking from him 
 and Byres a bond to make them furthcoming. Kamsay having hid 
 the jewels in his cellar, Byres got access to them unauthorisedly, 
 removed them, and pledged some of them to Wilson. In a com- 
 petition betw^een Wilson and Kamsay (who had become Cunning- 
 ham's executor), the presumption arising from Byres' possession 
 was held to be overcome by the original subscribed inventory, a 
 letter from B^tcs dated before the impignoration admitting the 
 jewels to be Cunningham's, and proof that Byres had broken into 
 the cellar, combined with the fact that he was not a dealer in such 
 wares, and that the jewels were not suitable to his quality as articles 
 for personal use. These circumstances were held not only to prove 
 that Byres was not the proprietor of tlie jewels, l)ut also to exclude 
 Wilson's plea that he had in bona fide trusted Byres as such {i). 
 On the other hand, where a creditor of one wdio was an undischarged 
 bankrupt (although the sequestration had practically terminated), 
 poinded tlie bankrupt's household furniture, wdiereupon another per- 
 son claimed it, stating that it had been }»urchased by him at an ap- 
 praised value and left with the bankrupt, from motives of friendship) 
 to him and his family, and where the furniture had never been re- 
 moved from the bankrupt's house, but had been possessed and used 
 by him as his own for six years, it w^as held that the presumption 
 arising from possession w^as not overcome by the circumstances of 
 the bankruptcy and the original purchase by the bankrupt's friend, 
 and that, as that party had failed to prove a loan or hire by him to 
 the bankrupt, the latter must be presumed to be proprietor (k). 
 Lord Moncreiff and Lord (Ordinary) Ivory, holding that the pre- 
 sumption of the bankrupt being proprietor was overcome, treated 
 the case as one of reputed ownership, and held that the bankrupt's 
 possession did not in the circumstances raise such a repute. But 
 the case was decided independently of that doctrine. 
 
 § 329. The principle last referred to (which is a rule of mercan- 
 tile law, not of evidence) is thus stated by Mr Bell {I): " Where 
 
 {h) Abercromby v. Story, 1687, M., 11,618. (^■) Ramsay v. Wilson, 1666, 
 
 M., 9113— See also Pringles v. Gribton, 1710, M., 9123. {k) Anderson v. 
 
 Buchanan, 1848, 11 D., 270. With this case compare Fife v. Woodman, 1841, 4 D., 
 25o. {I) 1 Bell's Com., 250.
 
 § 32'.). PRESUMl'TIOXS FROM POSSESSION. 245 
 
 one is uiiiiecessarily or l)y the lolliisiuii ur gTuss negligence of the 
 true owner permitted t<j give himself an appearance to the world as 
 if he were proprietor of goods and wares not Ijelonging to himself, 
 and this l)y exereising acts of OAvnershij), and l)y hcdding a posses- 
 sion seemingly uncontrolled ; his creditors will be entitled to pro- 
 ceed against the goods as if they really belonged to him." The 
 foundation of the rule is fraud or collusion, or at least neglect, in 
 the proprietor of goods, in allowing another person to have that 
 possession of them which warrants persons unacquainted ^\^th the 
 latent right to give him credit (»0- When the goods originally 
 belonged to the person left in possession of them, by wlujm they 
 w^re sold without being delivered to the true owner, the right >>[ 
 the latter will fail in competition with the creditors of the former, 
 on the additional ground that traditionibus, non nudis pactis, domi- 
 nia rerum transfemntur.'^ 
 
 (to) 1 Bell's Com., 250 (3), et scg.— Stair, 1, 9, 11— Bell's Pr., § 1315, G— Per L. 
 Muncrciff iu Anderson v. Buchanan, mjmi. The following cases have occurred on ques- 
 tions of reputed o\\-nership ; Carse v. Halyhurton, 1714, M., 9125 — Breichan v. Muir- 
 head, 1810, Hume D., 215— Cargill v. Somerville, 1820, ib., 223— M-:Millan v. Price, 
 1837, 15 S., 91G— M'Dougal v. Whitelaw, 1840, 2 D., 500— Fife v. Woodman, 1841, 4 
 D., 255— Shearer v. Cliristie, 1842, 5 D., 132— Campbell v. Stewart, 1848, 10 D., 1280 
 —Brown v. Fleming, 1850, 13 D., 373. 
 
 2 Tlie principle of the common law, that undelivered goods remain the property of 
 the seller, is untouched by the Mercantile Amendment Act, 19 and 20 Vict., c. 60, and 
 tlie practical consequences of the principle remain unimpaired, except so far as express- 
 ly taken away or modified by the Act; Wyper v. Harvey 18G1, 23 D., 606. Tlie Act 
 provides, ? 1, that where goods have been sold, but have not been delivered, and have 
 been allowed to remain in the custody of the seller, no creditor of the seller shall attach 
 the goods, to the efl'ect of preventing the purchaser or others in liis right from enforcing 
 delivery of them. It has been held that the case of a horse sold and left with the seller, 
 wlio was authorised to take the use of it and to sell it on behalf of tlie purchaser, did 
 not fall within this clause ; because goods of which the seller was allowed the use, and 
 which he had power to resell, were not, in the sense of the Act, " goods left in the cus- 
 tody of tlie seller," — the right of custody not imjilying right to use or sell ; Sim i-. 
 Grant. 1802, 24 D., 1033. 
 
 " The law requires, in cases of civil or constructive delivery, the same description 
 and extent of possession which was formerly in the seller to be, after the sale, vested in 
 the pnreha.^ei- ; " Lord President Blair in Broughton c Aitcheson, 15th November 
 1819, F. C. In a recent case, wliere spirits sold by a distiller and i)aid for, the sale 
 being entered in the distiller's books, were allowed to remain in a warehouse in the dis- 
 tillery, to wliich the distiller had one key and the excise oflicers another, the spirits 
 were hehl not to be transferred to the purcliaser, but to form part of the sequestrated 
 estate of the seller; Mathison v. Alison, 23d December 1854, 17 D., 274. A keeper of a 
 bonded warehouse who receives spirits from a distiller, receives them in deposit to liold 
 fur the distiller, not to deliver to tlie purchaser ; and a keeper of a bonded warehouse 
 was lield not entitled, without an order from the distiller, to make delivery to a pur-
 
 246 PRESUMPTIONS FKOM POSSESSION. § 330- 
 
 § 330. When the possessor of a moveahle does not claim the 
 property' of it, but some inferior right, e.g., of pledge, to which the 
 possession may be attributed, his admission that he is not proprie- 
 tor will not throw on him the burden of proving such inferior title ; 
 but the admission will bo taken with its qualification {ii). Accord- 
 ingly, where a party when sued for delivery of certain articles ad- 
 mitted that they were not his property, but stated that they had 
 been pledged by the pursuer's wife for a debt due by her and the 
 pursuer, of which debt she had no proof except an irregular account- 
 book, and where the alleged proprietor had no proof besides the 
 qualified admission, the Court found that the possessor was not ob- 
 liged to give up the articles except on payment of his del)t (o). 
 
 § 331. In regard to heritage the general rule ajjplies, that in 
 pari casu melior est conditio j)ossidentis (p). Under the Act 1617, 
 c, 12, which establishes an absolute right of property in one who 
 has possessed heritage uninterruptedly for forty years " following 
 and ensuing" the date of his infeftment, it is enough for the party 
 to prove possession as far back as the memory of man can reach, 
 whereupon law will presume that it existed from the date of the 
 right (r).^ 
 
 Possession by a churchman for thirteen years of any subject as 
 part of the benefice, creates a presumptive title in his favour, under 
 the maxim of the canonists decennalis et triennalis possessor non 
 tenetur docere de titido {s). The rule arises from the risk of loss under 
 which the titles of churchmen lie, in consequence of the frequent 
 change of incumbents. It is not of the nature of a prescription, but 
 is merel}^ a presumption which may be rebutted, as by the terms of 
 the titles showing that the incumbent has been possessing beyond 
 his right (t). The presumption, being intended to supply the want of 
 
 [n) See infra, chapter on iruplied admissions. (o) Hariot v. Cunningham, 
 
 1791, M., 12,405— :\rore, 151. {p) Ersk., 2, 1, 24. (r) Ersk., 3, 7, 3— 
 
 Talt., 486. (s) Stair, 2, 8, 29— Ersk., 3, 7, 33— More's Notes, 147. 
 
 (t) Ersk., svpni—E. Wigtown v. Gray, 1622, M., 10,998— Bishop of Dunblane v. Kin- 
 loch, 1676, M., 7950— Ramsay v. Kinloch, 1676, 3 Br. Sup., 137— Barclay v. College of 
 
 chaser, though the name of the purchaser was marked by the seller on the casks when 
 they were sent; Smith v. Allan and Poynter, 1859, 22 D., 208 — Melrose v. Hastie, 1851, 
 13 D., 880 — Lord President Blair's judgment in Broughton v. Aitchison, supra. 
 
 A sale by auction, under a levy warrant for payment of excise duties, was held not 
 to divest the owner of goods which were sold but allowed to remain in his possession ; 
 M 'Arthur v. Brown, 1858, 20 D., 1232. 
 
 ■* Regi.stration of long leases, i.e., of leases for tliirty-one years and upwards is equi- 
 valent to possession ; 20 and 21 Vict., c. 20, § 16.
 
 § ;-J32. PKESUMI'TIONS FliO.M POSSESSION. 241 
 
 writlcii litles, would i)i-()l)!il.ly not l)u cxtcudod to rights to vicarage 
 (ciiids, wliich ;ire constituted !.y usage, not by writing (u). The pre- 
 8uniitti(m is good, not only to the incumhcnt at the time, but to all 
 his successors, each being entitled to found on the possession of 
 previous incund)ents (x). 
 
 The Court of Session passed an Act of Sederunt on KJth De- 
 cember 1G12, by Avhicli they declared that in time to come they 
 would decide all questions with regard to church lands and livings 
 pertaining to churchmen, l>y their possession for thirty years im- 
 mediately preceding the suit concerning them (y).* 
 
 § 332. Possession by the public of a road as a public road for 
 forty years, or beyond the memory of man, raises a presumption 
 that they have a right of way along it (z), arising from a grant or 
 dedication, either express or implied («).^ This presumption is al- 
 
 St Andrews, 1684, M., 11,001— Graham v. Ogilvy, 1862, M., 7955— Rule's Keps. v. 
 Magistrates of Stirling, 1708, M., 11,002— Greig v. D. Quecnsber^3^ 21st November 
 1809, F. C. (w) Erslc, 3, 7, 34. (x) Ersk., ib. On this subject see 
 
 Connell on Parishes, 439, et seq. {y) Ersk., 8, 7, 34— E. Home v. L. Buccleugh, 
 
 1612, M., 10,998. {z) Rogers v. Harvie, 1833, 5 S., 917, and 4 Mur., 25 ; affd.. 
 
 3 \Y. S., 251— Crawford v. Mcnzies, 1849, 11 D., 1127— D. Athole v. Torrie (Glentilt 
 case). 1852, 12 D., 327; affd., 1 Macq., 65— Cuthbertsou v. Young, 1851, 14 D., 301; 
 affd., March 1854— Campbell v. Lang, 1851, 13 D., 1179; affd., 6th May 1853. 
 
 (a) Napier's Tr. v. Morrison, 1851, 13 D., 1404, especially L. Just.-Clerk Hope's 
 opinion— D. Athole v. Torrie, supra, per L. Chancellor St Leonards, 1 Macq., 77— See 
 also Dyce v. L. James Hay, 1852, per eund., 1 Macq., 311— Campbell v. "Wilson, 1802, 
 3 East., 294— R. v. Benedict, 1821, 4 B. and Aid., 547. But sec; contra, Cuming i-. 
 Smollett, 1852, 14 D., 885. 
 
 * The title acquired by a minister of a parish, by possession for thirteen years of land 
 or other subjects as part of his benefice, is a presumptive title only, and the presumption 
 may be displaced by proof that the possession was on some other footing than of pro- 
 perty. The title is presumed from and depends on the possession ; but possession for 
 thirteen years of a subject as part of a church benefice, will support not only a posses- 
 sory but also a declaratory action ; and a decree following on it and giving effect to it, 
 would, it is tliought, amount to an active and permanent written title in favour of the 
 incumbent, by which possession might be recovered after having been lost. But the 
 title acquired by possession alone, if not supported by a decree, is a title merely to de- 
 ft nd, not to acquire or recover possession ; it is not of such permanent character as to 
 survive the loss of possession. So, when a piece of land which, prior to 1814, had been 
 possessed for more than thirteen years as part of a church benefice, ceased then to be 
 so possessed, it was held tliat the minister of the parisli liad not, in 1856. a title to re- 
 cover possession; during part of the interval between 1814 and 1856 the piece of land 
 had lain unoccupied, but latterly it had been possessed by othci-s; Cochrane v. Smith, 
 1859, 22 D., 252. 
 
 Tlie opinions in the case of Coclirane v. Smith seem to proceed on a rejection of the 
 Act of Sederunt, as either not applicable to a question about the right to a benefice, or 
 as not in force. 
 
 s Magistrates of Elgin v. Uob.'itson, 1862, 24 D.. 301, ./;..' . I 293. note 1.
 
 248 PEESUMPTIONS FKOM POSSESSION. § 332- 
 
 inost ahvays sufficient!}' strong to ostablisli the riglit. But it is 
 not necessarily conclusive ; and it may therefore be overcome by 
 contrary inferences, e.g., where the road is through a private policy, 
 or "wliere it had been made shortly before the commencement of the 
 prescriptive period as a private avenue {J)), or as a road to a private 
 quarry (c). The reason is, that as it cannot fairly be presumed 
 that a proprietor by allowing persons to pass along a road of such 
 a private character intended to create an absolute and perpetual 
 jtublic right along it, the possession will be attributed to sufferance 
 during his pleasure, and not to constructive or implied grant of 
 pubhc way (d). In this 'respect, therefore, a public right of way 
 differs from a servitude of road. While the former depends upon 
 grant express or presumed, the latter may arise either from grant 
 or from positive prescription, the sasine of the dominant proprietor 
 combined \nth forty years' possession creating an indefeasible right 
 not only to the subjects specially described, but also to those privi- 
 leges which are accessory and tributary to them, among which ser- 
 %atudes of way are included (e).^ 
 
 § 333. The immemorial exercise of corporation privileges raises 
 a presumption that the body which has enjoyed them had been 
 constituted a corporation (/). 
 
 § 334. It is often said that recent possession of stolen goods 
 raises a presumption that the possessor is the thief, so as to lay on 
 him the burden of proving that he acquired them honestly. But 
 possession may arise from so many causes reconcileable with in- 
 nocence — e.g., honajide purchase from the thief, transfer of the pos- 
 session by him in order to escape detection {g) — that no such gene- 
 ral rule ought to be laid down. Baron Hume accordingly ob- 
 serves (li) — " That recent possession shall in every case be sufficient 
 
 {b) Napier's Tr. v. Morrison, supra — Campbell v. Wilson, supra — R. v. Benedict, 
 swpra— See also Purdie v. Steil, 1749, M., 14,511. (c) Ker v. Hamilton, 1823, 
 
 2 S., 149, Session Papers. [d) Authorities in two preceding notes. 
 
 (c) Stair, 2, 7, 2— Ersk., 2, 7, 3— Mackenzie, Inst., 2, 9, 11 (Works, vol. ii, p. 306)— 
 Bell's Pr., I 993— Beaumont v. L. Glenlyon, 1843, 5 D., 1337, and cases there cited— 
 Listen V. Galloway, 1835, 2 Bell's Illust., 129— Dunse v. Hay, 1732, M., 1824. 
 
 (/) Ivory's Ersk., 214, note 260— Wrights of Glasgow v. Cross, 1765, M., 1961— 
 Begbie v. Brown, 1766, M., 7709— Skirving v. Smcllie, 1803, M., 10,921— See also So- 
 ciety of Solicitors v. Writers to the Signet, 1800, M., Appx. College of Justice, No. 1 — 
 Graham v. Writers to the Signet, 1825, 1 W. S., 538. [g) See supra, g 256. 
 
 (A) 1 Hume, 111. 
 
 •> As to the difference between a public and a ser\'itude road see Thomson ik Mur- 
 doch and others. 1862, 24 D., 975— Carsen, Warren, & Co. v. Miller, 13th March 1863, 
 25 D.
 
 § 335. PRESUMPTIONS FROM POSSESSION. 'IVJ 
 
 to convict, would l)e too l)rocid a position. Like tliat of other cir- 
 cumstances, its weight may he greater or less according to the re- 
 lative ])articulars of the story. JJut generally it seems to he true 
 that if'tlie jtanel is found in possession recently after the thing has 
 heen stolen, in which case it is unlikely that he should have got it 
 otherwise than 1)}' stealing, this is alwaj's a strong ingredient of 
 evidence, and such as, with the aid of any other material circum- 
 stance, will and ought to l»e held a relevant ground of conviction." 
 The weight of the circumstance depends upon the nature of the ar- 
 ticles stolen, and the condition or occupation of the possessor ; and 
 such circumstances have also an important hearing upon the time 
 over which the suspicion of guilt should run. For example, the 
 possession within a few hours after theft of articles wliicli pass 
 rapidly from hand to hand would hardly raise a prohahility of guilt, 
 while it is otherwise as to the possession at the distance of days 
 and even weeks of a hulky commodity, e.g., a herd of cattle, or a 
 hoat, or even a large quantity of trifling articles which had heen 
 stolen en masse (/). 
 
 CHAPTER V. — OF THE PRESUMPTION OF ONEROSITY OF BILLS OF 
 EXCHANGE AND PROMISSORY NOTES. 
 
 § 335. Law recognises a strong presumption that bills of ex- 
 change and promissory notes are onerous transactions in regard to 
 all the persons interested in them, and in general this presumption 
 can only be overcome by the writ or oath on reference of the credi- 
 tor in the bill. This presumption springs from the ordinary course 
 of business ; and it is a favourite of the law, partly from its advan- 
 tage to trade in enabling bills to pass from hand to hand as bags of 
 money, partly from its preventing frivolous objections and pro- 
 longed investigations being started to stop diligence on bills, and 
 because the proper legal constructiitn of these writings ought not 
 to be controlled by parole evidence. The presumption of onerosity 
 will be considered, 1st, as between the drawer and acceptor of the 
 bill ; '2d, as between the drawer and payee ; and, 3d, as between 
 
 (j) See on this Hume, supra — Burnett, 556 — 1 Al., 320 — Best cm Presumption, 304 
 —Taylor, 102. See supra, § 283. 284.
 
 •250 PRESUMPTION TUAT ACCEPTOR OF A BILL § 335- 
 
 tlie iiulorsee or holder and tlie person from whom the right was de- 
 rived. 
 
 As promissory notes are subject to the same rules as bills, they 
 vdW in the following paragraphs be included under that general 
 term. 
 
 I. Presumption of Oncrosity as hetiveen the Drawer and Acceptor. 
 
 § 336. The acceptor of a bill is presumed to have received for 
 his acceptance a valuable consideration from the drawer ; and in 
 general this presumption can only be overcome by the drawer's 
 writ or oath (a)} This rule holds not only in the common case of 
 an action at the instance of the drawer or indorsee against the ac- 
 ceptor, but also when the draw^er in an action against him by an 
 indorsee pleads want of notification of dishonour, and is met by the 
 allegation that the bill was accepted for his own accommodation. 
 In a case of this nature the Court held that the averment of non- 
 onerosity could only be proved by the drawer's writ or oath (6). 
 And wliere an indorsee suing the acceptor of a bill admits that he 
 is trustee for the draw^er ; the acceptor's defence of non-onerosity 
 can only be proved by the drawer's wait or oath (c). 
 
 § 337. AVhen there are several acceptors, all are presumed to 
 be on an equal footing with regard to onerosity ; and, therefore, 
 when one acceptor, having paid the bill, sued his co-acceptors for 
 relief pro rata, it was hold that their defence, that they accepted 
 for his accommodation, could only be proved by his writ or oath (d). 
 
 § 338. Mr Erskine holds that when a bill docs not bear to be 
 
 (a) Ersk., 3, 2, 29— Tait, 474— Thomson on Bills, 86— Jaffray v. Robertson, 1712, 
 M., 12,337- M'Donell v. Donaldson, 1825, 4 S., 87— Peat v. Wilson, 1827, 6 S., 225— 
 Bennet v. Burgess, 1828, 6 S., 854 — Jamieson v. Graham, 1832, 11 S., 80— Connel v. 
 Stalker, 1849, 12 D., 169— Cargill v. Gould & Co., 1852, 14 D., 485. The consideration 
 docs not require to be present value ; Moffat v. M'Kenzie, 1822, 2 S., 75. See also 
 Stewart v. Wylie, 1849, 11 D., 1123— Kidstoue v. Stead, 21st Jan. 1809, F.C.— WaUace 
 V. Ban-ie, 1793, M., 1484. {b) Whyte v. Finlay, 1831, 9 S., 304. 
 
 (c) Jameson v. Grahame, 1832, 11 S., 80— Innes v. Lawson, 1828, 6 S., 513. 
 
 (d) Laing v. Anderson, 1827, 5 S., 851. 
 
 1 " Proof by writ or oath does not mean a proof by writ and oath. If the defender 
 fail to prove his defence by writ, he may have recojjrso to proof by oath ; but he is 
 then confined to the oath as his only evidence, the reference to oath being a judicial 
 contract that tlie case is to be determined by what his adversary sliall depone "; Lord 
 Justice-Clork Inglis, in Gordon v. Pratt, 1860, 22 D., 907.
 
 § 338. RECEIVED VALUE FItOM DUAWEll. '^51 
 
 for value, tlie acceptor is presumed not tol)e tlie drawer's delator (e). 
 Ikit tliis doctrine has beeu questioned (/) ; and it cannot be recon- 
 ciled with two cases where onercjsity was presumed, although the 
 value set fortli was admitted to be untrue (</). An acceptor who 
 wishes to exclude the presumption, may do so by accepting " for 
 honour" (h). Again, where the drawer of a bill, alleging that he 
 had joined the acceptors in it for the accommodation of a third 
 l)arty (whose name was not on the bill), sued them for relief of 
 their proportion of the contents, it was held that their allegation, 
 that they accepted for the accommodation of the pursuer and his 
 brother, could only be proved by the pursuer's writ or oath (i). 
 Lord Ordinary Fullerton, whose judgment was adhered to in the 
 Inner House, observed in this case that " the principle which seems 
 to be adopted, and, as it appears to the Lord Ordinary, justly adopt- 
 ed in such cases, is, that among the parties to a bill, whether an 
 accommodation bill or not, the liabilities created ex facie of the 
 document must receive effect, unless taken off by the writ or oath 
 of the apparent creditor."^ 
 
 (e) Ersk., 3, 2, 30, citing Cunningham v. Agnew, 1711, M., 1531. 
 
 (/) Ivory's Ersk., p. 62G, note, 73— Thomson, 89— Tait, 474. (ff) In Wal- 
 
 laces V. Barrie, 1793, M., 1484, wlierc the bill bore to be for " value received in flax," 
 and the acceptor alleged that it was an accommodation bill for the drawer's behoof, the 
 Court held that the admission did not annul the bill, and that, uotwitlistanding of it, 
 value was to be presumed. It was observed on the bench, without qualification, that 
 '• the law presumes that the acceptor gets value for the bill ; and this presumption can 
 only be taken off by writ or oath of party." * In "Winton v. Gibson, 1831, 9 S., 662, 
 where the bill bore to be for value in plumber work, and the acceptor alleged that it 
 \\as for the drawer's accommodation, it was held that the presumption of value was not 
 dune away by the admission that the particular value set forth was untrue. See also 
 Malcolm i-. Balleudene, 1835, 13 S., 1021. (A) Ersk., 3, 2, 30— Tait, 474. 
 
 (i) IM'Gregor v. Gibson, 1831, 9 S., 483. Lord Glenlce observed— " All that is re- 
 ferred to the pursuer's oath is the nature of the transaction ; but it will still be open to 
 prove aliunde on the merits as to payment that the pursuer never gave the money to 
 VVardlaw," the third party fur wlicisc accouniHiiLitinn tln' lull w;i>< iillc>_'.'d to bavo been 
 made. 
 
 2 The admission of the drawer was, tliat the acceptance was not for value when it 
 was granted ; but ho stated that he had discounted the bill and handed the proceeds to 
 the acceptor. 
 
 3 In a suspension by the acceptor of a bill of a charge by the drawer, the charger 
 stated that he and the suspender had entered into a joint adventure, that tiie bill had 
 been made to raise money for the adventure, that he (the charger) discounted the bill, 
 employed the proceeds in the joint adventure, and afterwards retired the bill ; tliat the 
 joint adventure had resulted iu loss, and the suspender's sliare of the loss was a certain 
 sum loss than the sum in the bill, to which the drawer restricted the cliarge. The de- 
 fender denied the joint adventure, and alleged tliat the bill was for the accommodation 
 of the drawer. The majoritv of the Court held fliat the drawer's statement showed that
 
 252 PRESUMPTION THAT ACCEPTOR OF A BILL § 339- 
 
 §339. AYhcre a bill bears to be for "value in account," full 
 value is not presumed ; and the question whether it has been given 
 depends on the result of an investigation into the state of accounts 
 between the drawer and acceptor (k). This is also the rule when 
 it appears from the drawer's Avrit or oath that the value was in ac- 
 count (1). 
 
 § 3tt0. As the presumption that bills are onerous is designed 
 for the benefit of trade, and the protection of genuine and bona fide 
 transactions, it yields whenever the manifest or admitted facts 
 show that the transaction was not onerous {in). What course will 
 then be followed depends on the strength of the ^9?-m« /ac/e case 
 against onerosity. If it is clear, the Court may at once give eftect 
 to it {n) ; whereas if it leaves the question doubtful, they will allow 
 
 {k) Wightmau v. Jolinstou, 1700, 4 Sup., 477— Wiglitman v. Moncur, 1701, ib., 497 
 —Wilson V. Loder, 1848, 10 D., 5G0. It was hero held that " value in account " means 
 as between the drawer and acceptor, and not as between the drawer and payee. Com- 
 pare this case with Forbes v. Fonnereau, 1741, Elch., " Bill," No. 24 M., 1472, and 
 Cheine v. Western Bank, 1848, 10 D., 1523. See Thomson, 92. 
 
 {I) Carruthers v. Johnstone, 1830, 8 S., 957— Donaldson v. M'Donell, 28th January 
 1826, F. C. See also Young v. Sheridan, 1837, 15 S., 664— Fortune v. Luke, 1831, 10 
 S., 115— Pershard v. Brackenbridge, 1793, M., 1523, 
 
 (m) See the cases on the presumption in favour of onerous indorsees, infra. 
 
 (n) Thus where a person in prison, in order to obtain his liberation, had accepted 
 renewals of bills which included not only the original bills, but also sums which the 
 charo-er said were due as the expense of diligence on them, which sums had not been 
 properly liquidated, diligence on these bills was suspended without caution or consigna- 
 tion; M-Lauchlans v. Campbell, 1821, 1 S., 172. In the year 1838 a party sued the 
 trustees of his son (who had died in December 1834), for payment of a bill for £300, 
 bearing to be for value received, payable two months after its date of 20th July 1832, 
 and signed by the son as acceptor. The defenders founded on the following facts ; 
 which were all either admitted or proved. In 1822 the son succeeded to an estate, 
 which the father managed till tlie son's majority in 1828. In 1830 the father was se- 
 questrated, and the son clainied on his estate as a creditor for £800, which the father 
 explained to be the balance due on his intromissions ; but this claim was not paid. In 
 October 1831 the father was imprisoned for debt, and afterwards obtained the benefit 
 of the act of grace on taking the usual oath, when he made no reference to any claim 
 a^^ainst the son. He was liberated in March 1832, on the incarcerating creditor failing 
 to aliment him. In August 1834 (two years after the date of the bill libelled on), he 
 sued his son for aliment, representing himself to be in destitution, but maldng no allu- 
 sion to the bill ; and in that action he was admitted to the benefit of the poor's roll, on 
 the ground that he had no funds of his own. These facts the Court, although with 
 difficulty, held to be suffici(,nt to overcome the presumption of onerosity, and they ac- 
 
 the bill did not prove what debt, if any, was owing by the suspender, and they directed 
 investigation. Lord Deas thought that the bill should receive effect, except so far^as 
 it was qualified and restricted by tlie cliarger's admissions ; Blackwood v. Hay, 1858, 
 20 D., 631.
 
 § 340. HECKIVEl) \AI,1 E FlfOM DKAWKR. 2ij?> 
 
 a |ii'i)oi" prout dv Jure ui' iiou-uiicrosity (o). Soiuetinies tliey only 
 all'iw such a proof " before answer " (^j). When the transaction 
 appears to be merely irregular, without there being ground to sus- 
 pect mala fides or non-(inerosity, the ordinary rule will Ijc ap- 
 plied (r) ; and if a proof wliicli has been allowed comes uj) merely 
 to suspicion, and not to full pnxjf, the acceptor must full lia<k on 
 the drawer's writ or oath (.s-).* 
 
 cordiiif^'ly assoilzied tlic trustees; Burns v. Burns, 1841, 3 D., 1273. Sec also M'Ewau 
 V. Graham, 1833, 12 S., 110 (uoticeil on the bench in M'Lachlans v. Campbell, supra), 
 where the Court, being satisfied from ocular inspection that a name had been erased 
 from below that of the apparent acceptor, refused action thereon against him. The 
 admitted circumstances also seemed to be considered suflicient to show that the trans- 
 action was not bona fide and onerous. See also Carruthers v. Johnstone, 1830, 8 S., 
 1*57. 
 
 (o) Thus in M'Donald v. Langton and Others, 183G, 15 S., 303, where the indorsees 
 charging on a bill hud acquired it after the term of payment, and after it had been 
 noted for non-payment, and where the acceptors having alleged that they were not 
 debtors in the bill, and that the chargers were duly made aware of that fact, recovered 
 writings which inferred, but did not conclusively prove, these averments, the Court al- 
 lowed them a farther proof jsrowi dejure, accortling to " the general rule to allow investi- 
 gation by parole evidence, where there is reason to suspect unfair dealing as to bills of 
 exchange." See this case noticed by Lord Justice-Clerk Boyle in Beveridge v. Hender- 
 son, infra. 
 
 (p) Thus where Beveridge and Colville had been on an intimate footing for a num- 
 ber of years, and had been mixed up together in a variety of bill transactions, and where 
 a bill at four mouths drawn by Colville and accepted by Beveridge in August 1834, had 
 been conveyed by Colville to Monro, discounted by Monro at a bank, paid and taken up 
 by Monro on non-payment by the parties to it, and paid to Munro by the trustee on 
 Colville's estate ; and where Colville having died in 1837, without having claimed any 
 part of the bill from Beveridge, Colville's representatives, in 1841, charged Beveridge 
 for payment, and Beveridge suspended on the ground [inter alia) that the bill had been 
 granted for Colville's accommodation ; the Court, in consideration of the circumstances, 
 allowed a proof before answer of certain allegations by Beveridge, which, if true, showed 
 that Colville had been the real debtor in the bill ; Beveridge v. Henderson, 1841, 4 D., 
 87. See other instances in which the Court followed this practice ; Crichton v. Watt, 
 1831, 9 S., 516— Little v. Smith, 1845, 8 D., 205— Peutland t-. Bell, 1822, 1 S., 426. 
 See also Bortliwick v. Breniner, 1833, 11 S., 716. 
 
 (r) As in Wintou v. Gibson, 1831, 9 S., 662— WaUaces v. Barrie, 1793, M.. 1484— 
 M'Gregor v. Gibson, 1831, 9 S., 483— See also Malcolm v. Balleudene, 1835, 13 S., 1021. 
 
 (s) Little I'. Smith, 1847, 9 D., 703. See Berry v. Murdoch, 1822, 1 S., 364. 
 
 * Macleans v. Smith, 1855, 17 D., 950— York v. Gossman, 1861, 23 D.. 1245— 
 M'Alister v. Gemmil, 1802, 24 D., 956; afl"d., March 1863, supra, g 121, note 12. In- 
 quiry was allowed where the acceptor of a bill alleged that at a sale of farm stock he 
 had made a purchase, and accepted a blank bill drawn by the pursuer, who managed 
 the sale, on the understanding that the blank was to be filled up with the price of what 
 he had purchased, which was far less than the sum with which the drawer had filled 
 up tlie blank in the bill. The pursuer admitted that the bill was blank when it was
 
 254 PRESUMPTION THAT ACCEPTOR OF A BILL § 341- 
 
 § 341. In one case, where a claim for payment of tAVO bills arose 
 in the course of an accounting between the drawer and acceptor, 
 and where the circumstances attending the bills were strongly in- 
 dicative of their haA-ing been granted without value, the Court re- 
 quired the drawer, before answer, to give in a condescendence of 
 the value which he alleged he had given for them (t). This is an 
 advisable course when the circumstances are strong enough to re- 
 lieve the clraw^er from the l)urden of proof, although not sufficient 
 to substantiate the averment of non-onerosity.^ 
 
 § 342. When the acceptor makes specific averments of want of 
 value, and offers to prove them from the draw^er's books, the Court 
 generally sist diligence on the bill until the books shall have been 
 examined (u). Thus where a promissory note had been granted by 
 Hynde to his partner Berry, had been discounted by Berry, and 
 duly retired by Hynde ; and where Berry, being sued for the amount 
 by the trustee on Hynde's sequestrated estate, admitted that the 
 bill had been an accommodation bill, and that he had discounted 
 it, but added that it had been for Hynde's accommodation, to whom 
 he had accordingly paid the proceeds, the Lord Ordinary, after re- 
 mitting to an accountant to examine the books of the parties, as- 
 soilzied Berry ; and the Court adhered to the judgment (x). So 
 where the acceptors of four bills, on being sued by the drawers, 
 alleged that they had accepted for the accommodation of the latter, 
 by whom the bills had accordingly been retired, and where the 
 acceptors raised a counter action of reduction on the ground of 
 fraud, the Court, before answer, remitted to an accountant to exa- 
 mine the books of both parties {//). On the other hand, wdicre the 
 
 (t) Wilson V. Pollock, Gilmour, & Co., 1827, 6 S., 7. See also Eustace v. Pringle, 
 1776 Hailes, 130. (u) Berry v. Murdoch, 1822, 1 S., 328 — See also Cutliill v. 
 
 Monteath, 1825, 4 S., 164. {x) Berry v. Murdoch, supra. 
 
 {y) Pentlaud & Son v. Bell & Co., 1822, 1 S., 464. The drawer's books were found 
 to contain entries of two of the bills as for their accommodation ; and the circumstances 
 of the case, combined with the suspicious nature of the books, led the Court to allow the 
 
 signed, and that the acceptor had not made purchases to the extent of the sum in the 
 bill, but he alleged that the acceptor had agreed to sign the bill as a security for other 
 purchases, and had authorised the pursuer to fill up the blank with the sum in the bill, 
 which sum was covered by the stamp. However, the mere averment that a bill ex facie 
 complete was blank when an acceptor signed it, would not of itself entitle the acceptor 
 to a j>rooi prout dejure ; Anderson v. Lorimer, 1857, 20 D., 74. 
 
 5 This course was adopted in the case of Bannatyne v. Wilson, 1855, 18 D., 230, in 
 which the acceptor of a bill resisted an action on the bill by the holder of it, on the 
 ground that the bill had been an accommodation bill between the drawer and acceptor, 
 and that the charger was not an onerous bona fide holder. The circumstances were 
 thought to give rise to doubt as to the onerosity of the bill.
 
 § 344. RECEIVED VALUE FROM DRAWER. 20") 
 
 acc('iit(jr of a ]ii!l, l»ciii^- cliar^'ud Ity a Iniuk \vhii;li wa.s an iu<-l<jr.sec 
 of (he (Iiawer, alleged that he had accepted for the drawer's accom- 
 modation, and that the bank were nut onerous and bona fide holders, 
 and wliere he craved leave to prove the latter averment from the 
 l)aidv hooks, the Court held tliat the offer of proof "was too vague; 
 and tliey rc(|uired the acceittor to prove his averment Ity reference 
 to oath {%). 
 
 § 343. But while proof Ity the drawer's books, as equivalent to 
 his writ, may thus Ite allowed, whenever a specific case of non- 
 onerosity is averred ; and while the admitted or manifest circum- 
 stances may induce the Court to allow a proof of that fact ^rout de 
 Jure; it may be stated as an inflexible rule, that no unsupported 
 allegations against the ouerosity of a bill, however strongly and 
 articulately they may be proponed, will obviate the presumption in 
 question, or entitle the acceptor to any other proof than the drawer's 
 writ or oath {a). 
 
 § 344. This rule, how^ever, only applies where the acceptor 
 does not deny that the bill was duly signed by him. If his allega- 
 tion strikes at the validity of the document as his writ, e.g., where 
 he avers that it is a forgery, or that it was impetrated from him by 
 a fraudulent device, he ^^^Lll be allowed a proof at large, although he 
 has no j^y imu facie case on the admitted facts. This has been re- 
 peatedly held where the allegations were that the subscription had 
 been forged {h).^ So, a long trial ensued upon an issue whether 
 the acceptor's signature had been fraudulently obtained to the bill 
 when he was blind (c). And where MTlwham, the granter of a 
 promissory note to Kerr, alleged that it had been impetrated from 
 him by gross fraud and circumvention on the part of Kerr and his 
 wife, a proof 2>roM^ dejure was allowed, and established the allega- 
 tion {d). In every case, indeed, the allegation that the bill had 
 been obtained by fraud may be proved by parole evidence, pro\'ided 
 the averment be sufficiently specific (e). It would seem that this 
 
 acceptor a ^xooi prout de jure of their allegation against another of the bills. The 
 conclusions of the summons did not apply to the fourth bill. (z) Monro v. 
 
 Aytoun, 1822, 1 S., 338. (a) Supra, ? 336, {a). (b) Sec e.ff., Gel- 
 
 latley v. Jones, 1851, 13 D., 961. (c) Campbell v. Ayr Bank, Jlarch 1854. 
 
 (d) M'llwham V. Kerr, 1823, 2 S., 240. (e) Andrew v. Bulk. 1821, 1 S., 
 
 80— Burns v. Burns, 1841, 3 D., 1273, per Lord Fullerton— Little v. Smith, 1845, 8 D., 
 265, per Lord Justice-Clerk ; and 9 D., 762 — compared with Goodfellow v. Madder, 
 1785, JL, 1483 ; Hailcs, 978, S. C— Hunter v. George's Tr., 1834, 7 W. S., 339. See 
 
 6 The onus being on the party impugning the signature.
 
 25G PRESUMPTION THAT ACCEPTOR OF A BILL § 344- 
 
 oiily liolils where the fniiul alleged exists in the original concoction 
 of the hill or in its acquisition by indorsation, and that the allega- 
 tion of a fraudnlent use of the bill will not suffice (/).^ 
 
 § 345. In cases laid upon the Act 1621, c. 18, for defeating 
 o-ratuitous alienations by insolvent persons, the rule is, that if the 
 challenger proves that the granter and grantee were in a conjunct or 
 confident relation, he thereby transfers the onus prohandi ; where- 
 upon the party maintaining that the transaction is onerous must 
 prove that fact. Such is the rule in regard to deeds of alienation 
 and transference, which the grantee, if conjunct or confident to the 
 gTanter, must prove to be onerous, although they narrate an onerous 
 consideration ((/). The same principle holds as to bills, which will 
 not be presumed to have been accepted for an onerous consideration, 
 if the drawer is conjunct or confident to the acceptor {h). And the 
 circumstance that a bill bears to be for " value received," seems not 
 to entitle the drawer, if a conjunct or confident party, to the pre- 
 sumption of onerosity {i). On the other hand, when the drawer 
 does not stand in any of the relations which law recognises as com- 
 ing within these terms, the burden of proving that the bill is not 
 onerous lies on the party who challenges it {k). It may be added, 
 that the nullity Avhich the Act 1621, c. 18, introduces, does not 
 affect lulls granted by an insolvent debtor to conjunct or confident 
 persons when these bills have passed into the hands of those who 
 have " purchased them by true bargains, for just and competent 
 prices, or in satisfaction of their lawful debts, from the interposed 
 persons trusted by the said dyvours " or bankrupts. 
 
 § 346. It has been held that a bill which had been granted on 
 
 also Pentland & Son v. Bell & Co., 1822, 1 S., 464, siqyra, ? 342— Farquhar v. Shaw, 
 1757, M., 12,341— Eustace v. Pringle, 1776, Hailes, 130— and see infra, § 359, et scq. 
 
 (/) See per L. Fullerton in Burns v. Burns, swpra- and per L. Moncreiff in Little 
 V. Smith, 9 D., 764— con/ra Lord Justice-Clerk (Hope) in S. C, 8 D., 269. See infra, 
 g 359, etseq. {g) Ersk., 4, 1, 35—2 Bell's Com., 191, et seg-.- More, 61— Thomson 
 
 on Bills, 678. [h) 2 Bell's Com., 189 ; ib., 192 (3), citing Belch, 24tli Decemher 
 
 1808, not rep.— Thomson, 679. (0 See authorities in note {h) ; but see con- 
 
 tra, Wightman v. Moncur, 1701, 4 Sup., 497. {k) See Ersk., 4, 1, 35—2 Bell, 
 
 191— More, 61. As to who are conjunct or confident persons, see 2 Bell, 187 — Edmond 
 V. Grant, 1853, 15 D., 703. 
 
 7 19 and 20 Vict., c. 60, ? 15, infra, I 359, note. An acceptor of a bill, in an action 
 on the bill by the drawer, was allowed to prove, j^rout de jure, that the charger had ac- 
 cepted from the defender a sum of money for all the bills in his possession with the 
 defender's name on them, and had fraudulently retained this particular bill ; Joel v. 
 Johnstone, 1860, 22 D., 430.
 
 § 340. I{ECEivp:d value ehom dhaweii. 2r)7 
 
 deathbed is nut ciititJed to tliu prcsuiuptiuu ul' uuerusity when cliul- 
 lenged by the acceptor's heir-at-law (/). But this decision may ])C 
 questioned. 
 
 II. Fr^isuniplion of Ontro.slhj u.s bcUvetn Drawer and Payee. 
 
 § 347. Upon the grounds already noticed, the payee of a liill 
 or note is presumed to liave given an onerous consideration to tlic 
 drawer {in). This holds altliougli tlie bill was originally blank in 
 the payee's name (?/), and although it does not bear value as be- 
 tween him and the drawer (o). If, however, it bears to be for value 
 in account as between them, full value is not presumed, but will 
 depend on investigation {})). Where a bill was drawn thus. " Pay 
 to order of A value in account as per advice from L" (who was 
 the drawer), the Court held that it nieant account as between the 
 drawer and acceptor, not as between the drawer and payee, and, 
 consequently, that it was liable to the presumption of full value as 
 between the latter (r). 
 
 § 348. In general this presumption can be redargued only by 
 the payee's writ or oath on reference (s). But circumstances which 
 indicate suspicion will have the same effect in limiting, or (if suffi- 
 ciently strong) in overcoming this presumption, as they have on 
 the presumption of onerosity in the acceptance {{) or indorsation (w). 
 Accordingly, a bill drawn by the debtor in two bonds, payable to 
 the creditor in them, and not bearing to be for value, was held to 
 have been granted in satisfaction of the debt in the bonds, and not 
 for present value {x). 
 
 § 349. In bills or orders for delivery of goods, there seems to 
 be a presumption of onerosity as between the grantor and the party 
 
 (/) Christisons v. Kerr, 1734, M., 12,590, Elch., "Deathbed," No. 5. 
 
 (;«) Ersk.. 3, 2, 29— Thomson, 87— Tait. 470— Wilson v. Lnder, 1848, 10 D.. otiO— 
 Malcohn v. Ballrndcnf, 1835, 13 S., 1021— Ker v. Brown, 1715, M., 1539— Scott i-. 
 Laing, 1707, JI., 1535— Swinton v. Thorn, 1709, M., 1536. Tlie Earl of Forfar having 
 drawn a bill on his regimental agent in these terms, " Pay to T. Agnew or order, out of 
 the first subsistence you receive for me, which shall become due eight months after 
 date," in an action of recourse by the executor-creditor of Agnew against the drawer's 
 representatives nearly sixteen years afterwards-, the Court presumed value as between 
 the Earl and Agnew; M'Dowal v. Douglas, 1731, M., 1541. (n) Thomson v. 
 
 Gall. 1805, Hume. 53. (o) Authorities in note {in). [p) See Wilson v. 
 
 Loder, 1848, 10 D., 500. See supra, 'i 339. (r) Wilson i'. Loder, supra. 
 
 (s) Authorities in note (7«), supra. (t) See supra. § 340, et seq. 
 
 (m) See infra. ? 354, et seq. (r) Cheap f. Aruot. 1712, M., 1537. 
 
 VOL L H
 
 258 PRESUMPTION THAT INDORSEE OF A BILL § 349- 
 
 iii "vvliose favour they arc granted. But it may be overcome by 
 parole evidence (y). 
 
 ITT. Presumption of Onerosity as hehveen the last and j^revioics 
 
 holders. 
 
 § 350. There is a strong presumption that the holder of a bill 
 obtained it from the indorser or previous holder for an onerous con- 
 sideration (z). This applies although the indorsee's right was not 
 onerous at first, provided he ultimately came to hold the bill for 
 value (n).^ And he is considered an onerous indorsee where he has 
 only a joint right with another person (b). The same exception 
 applies here as in the presumptions already noticed, that where the 
 indorsation appears on the bill, or is admitted to be for "value in 
 account " between the indorsee and indorser, full value is not pre- 
 sumed, but depends on the state of accounts between these par- 
 ties (c). 
 
 § 351. Tn strictness, the presumption of onerosity in the indor- 
 sation applies only to bills and promissory notes. But indorsations 
 of custom-house debentures have been presumed onerous (d), al- 
 though they seem not to have the i)rivilege of bills in being free 
 from latent objections against prior holders (e). 
 
 (y) ArLuthnot v. Pyper, 1714, M., 1505— Merchiston v. Robertson, 1672, M., 1534; 
 2 Sup., 629, S. C. (z) Ersk., 3, 2, 31— Thomson, 86— Tait, 477. This is an 
 
 old rule; see Auchinleck v. Miller, 1715, M., 1537. It applies although the bill does 
 not bear to be payable to order ; Robertson v. Burdekin, 1843, 6 D., 17. 
 
 (a) Stewart r. Wyllie, 1849, 11 D., 1123— Glen v. National Bank, 1849, 12 D., 353— 
 Kidston v. Stead, 21st Jan. 1809, F.O. ; see also Moffat v. M'Kenzie, 1822, 2 S., 75. 
 
 {b) Aitchison v. M'Donald, 1823, 2 S., 478. (c) Sujira, 'i 339— Wightman v. 
 
 Johnstone, 1700, 4 B. Sup., 477— Wilson v. Loder, 1848, 10 D., 560; per Lord Medwyn; 
 see this case supra, g 347 [p). See also Donaldson v. Macdonncll, 26th Jan. 1826, 
 F. C. The case of Harris and Co. v. Cro.sbie, 1775, as reported in 5 B. Sup., 393, is 
 against the rule in the text. But that report is erroneous ; see the case in Hailes, 616, 
 and M., 2577. See also Burnet v. Ritchie, 1778, M., 1519. (rf) L. Castlehill v. 
 
 Watson, 1760, M., 1475. But WTit or oath will probably not be held necessary to over- 
 come this presumption; see supra, \ 349. (e) Alison v. Seton, 1750, M., 16,981 ; 
 Elch., " Bill," No. 46, S. C. 
 
 8 An indorsee who received a bill in security of a previous debt by the indorser is 
 an onerous holder ; and where a drawer indorsed a bill in order that the indorsee might 
 get it negotiated, and, when the indorsee was unable to get the bill negotiated, told him to 
 keep it for a previous debt, the indorsee, in an action against the acceptor, was held an 
 onerous holder. " A bill may be put into a party's hands for a particular purpose, and 
 tliere may be engrafted on his title of possession a different purpose ;" Gordon v. Pratt, 
 1860, 22 D., 903.
 
 § 354. UECElVElJ VALUE FROM INDORSEE. 259 
 
 § 352. Except in cases of a really suspicious character, tlie pre- 
 sumption of the indorsation being onerous can be overcome only by 
 the holder's writ or oatli on reference (/). It will not give place 
 to the strongest averments of non-onerosity, which are not borne 
 out by the apparent or admitted facts (y). It has been sustained 
 even where the facts raised some suspicion (7t). 
 
 § 353. This presumption has been applied where the indorsa- 
 tion was challenged under the Act WMi, c. 5, as having been 
 granted in security of former advances and not for present value. 
 In such cases the challenger has been ol)liged to prove his allega- 
 tion by writ or oath {{). When the bill is challenged on the Act 
 1621, c. 18, as granted inter conjunctos without value, it will Ite 
 good in the hands of an onerous indorsee (/i). Where the indorsa- 
 tion itself is challenged under that Act, the same principles will 
 apply as where the ol)jection is taken against the acceptance {I). 
 
 § 354. The question has often been raised, AVhether an indorsa- 
 tion made after the term of payment of the bill is presumed to be 
 onerous ? ^ 
 
 It is now settled, on the one hand, that the circumstance of the 
 indorsation having occurred at that stage, is not sufficient of itself 
 to exclude the presumption (m). Thus where a bill dated 1st June, 
 and payable 3d December, 1818, accepted by M'Kellar in favour of 
 M'Callum, had been indorsed by M'Callum to M'Gowau in Decem- 
 ber 1823, — in an action by M' Go wan against M'Kellar shortly after 
 
 (/) Authorities in note (z), supra. 
 
 Iff) Wight V. Ritcliies, 2-lth June 1809, F. C— Scott, 19th Dec. 1809, F. C— Craig 
 V. Shiels, 15th Dec. 1809, F.C.— Denniston v. Thomson, 1822, 1 S., 319— Cairncross v. 
 Mitchell, 1824, 2 S., 774— Naysraith v. Lawrie, 1824, 3 S., 166— Dunlop v. Reicl, 1827, 
 6 S., 796— Napier v. Sandiman, 1829, 8 S., 273— BeU v. M'Kune, 1831, 9 S., 587— 
 Boag I'. Fisher, 1849, 11 D., 3G2 :— Contra, Corrie v. Aitken, 1765, M., 1520. In the 
 case of Van Cherant v. M'Kay, 1735, Elch., "Bill," No. 7, which, as reported, seems to 
 go against this rule, the Session Papers (vol. 8, p. 1024) show that the .-auspicious cir- 
 cumstances appeared from the holder's oath. (h) See cases in following notes. 
 
 (t) Mansfield, Hunter, & Co. r."M'Ilmun, and lidem v. Douglas, 1770, both noted in 
 M., "Bills," Appx. No. 2, and Hailes, 350— See also Stein v. Forbes, 1791, M., 1142— 
 Richmond v. Pelican Insu. Co., 1805, M., " Bankrupt," Appx. No. 24— Dundas v. Smith, 
 1808, M., ib., No. 28, and Campbell v. M'Gibbon, 1780. M., 1139— compared with 
 Campbell v. Graham, 1713, and Durward v. Wilson, 1700, M., 1119 and 1120— Arrol v. 
 Marshall, 1821, 1 S., 67— Pattison v. Campbell, 1827, 5 S., 208. (A-) Supra, 
 
 2 345. {I) Supra, § 345. (»»t) 1 Bell's Com., 403— Wilkie v. Wilson. 
 
 30th November 1811, F. C— Frier v. Richardson, 1806, M., '-Bills," Appx. No. 19— 
 Crawford v. Robertson, 30th June 1814, F. C. — Pattison v. Campbell. 1827, 5 S., 208 — 
 Per Lord (Ordinary) Corehouse in M'Donald i'. Langton, 1836, 15 S.. 304 — and cases 
 in following notes. 
 
 9 Infra, note 10. 
 
 r2
 
 260 PRESUMPTION THAT INDOKSER OF A BILL § 354- 
 
 his indorsation, it was held that he was entitled to the privilege of 
 an onerous holder, there being no marks of dishonour upon the bill 
 to raise the suspieion that it was not negotiable (w)- Again, in a 
 question between the drawers and indorsees of a bill, where the 
 latter admitted that they had not originally been parties to it, that 
 after it was past due they had taken it up (without indorsation) 
 from a bank where it had been discounted, that part of it had been 
 previously paid liy the acceptor, and that the acceptor was the 
 brother of one of the indorsees, who were a mercantile company, — 
 it was held that these circumstances were not sufficient to prove 
 that the indorsees were not onerous holders ; and no other proof of 
 non-onerosity being offered, the Court refused to suspend a charge 
 by the indorsees against the drawer (o). So where a bill accepted 
 by Adam in favour of J. & T. Gilchrist, having been blank indorsed 
 to a bank, had been protested, and two months after protest had 
 been transferred to Boyd, and where Boyd charged Adam for pay- 
 ment, — in a suspension by Adam on the ground that he had had 
 certain dealings with the Gilchrists, and that they had along with 
 his other creditors agreed to accept of a composition, it being far- 
 ther arranged that the amount of their claim should be settled under 
 a reference, but that in order to defeat that arrangement the Gil- 
 christs had furnished money to Boyd to take up the bill, and that 
 Boyd was therefore not an onerous indorsee, — the Court held that 
 these allegations of Adam could only be proved by Boyd's writ or 
 oath (|>). In another case Young had accepted bills for £40, £30, 
 and £16 respectively to M'Carter, the first of them being dated in 
 June, and the two others in August 1823, and M'Carter having 
 discounted them Avith a bank agent, they came into the hands of 
 Pollock, who alleged that M'Carter had retired them, and that he 
 was M'Carter's onerous indorsee. Young having died in December 
 1824, Pollock raised action against his heir in February 1829. 
 The defender, without denying that the bills had been onerous, 
 jjleaded that they had been retired by Young, who (he alleged) had 
 £100 lying in the bank when the bills fell due, and that M'Carter, 
 after indorsing them to the bank, had never properly reacquired 
 tliem. The bills for £40 and £16 l)oro no mark of noting; the one 
 for £30 was noted, but no protest had been extended upon it ; and 
 
 (n) M'Gowan v. M'Kellar, 1826, 4 S., 498. (o) Muir & Co. v. M'Donald, 
 
 1831, 9 S., 535. This case was not meant to touch the question whether a proof prout 
 dcjure might have been allowed in support of tlie suspender's allegations. Sec note to 
 Lord Ordinary's interlocutor. {2>) Adam i'. Boyd, 1830, 8 S., 914.
 
 § 35G. RECEIVED VALUK FKOM INDORSEE. 2G1 
 
 uu till' back of this l)ill wvro ji)t,tin;^s in tliu hand of tlio l)Uiik 
 agent's clerk, which {inter aJia) l)on', "Two Itills £40," and de- 
 ducted tliat sum Ironi " Keccipt £100." Pollock denied that tliese 
 jottings hud any reference to a settlement with the l)ank, and 
 pleaded that nothing appeared on tlie face of the £30 bill to make 
 him doubt that it as well as the others were subsisting documents 
 of deht. The Court sustained that plea, and held that the alleged 
 fraud or non-oncrosity could only be proved by Pollock's writ or 
 oath (/•). 
 
 § 355. On the other hand, the fact that an indorsation was 
 dated after the bill fell due goes far towards excluding the pre- 
 sumption in favour of oncrosity ; and it will not require strong cor- 
 roborating circumstances to throw upon the indorsee the burden of 
 proving that he holds under an onerous transaction («). If tlie bill 
 bears marks of dishonour, the presumption of onerosity will be held 
 not to apply, because as the indorsee acquired the bill when it was 
 ex facie not a negotiable instrument, there is not ground to pre- 
 sume that lie gave value for it as negotiable {t). The " noting" by 
 a notary-public on protesting the bill will usually be a sufficient 
 mark for this purpose, although it will not always overcome the 
 presumption of onerosity {ii). 
 
 § 356. The law of England differs considerably from ours in 
 this class of cases. It is there held that an indorsee, whose right 
 was acquired after the bill had fallen due, is subject to all the latent 
 objections which attach to the document {x)}'^ 
 
 (r) Young V. Pollock, 1831, 10 S., 8. (s) 1 Bell's Com., 403. See this il- 
 
 lustrated by the following cases : — Ramsay v. Aitken 1825. 4 S., 390 — Robertson v. 
 Annan, 1825, 4 S., 40— Leishman v. Mercer, 1822, 1 S., 318— Thomson v. JI'Lauch- 
 lane, 1823, 2 S., 497 (as noticed in Thomson on BiRs, 98)— Farquhar v. Sloan, 1830. 9 
 S., 112— Macdonald v. Langton, 1836, 15 S., 303— Beveridge v. Henderson, 1841, 4 D., 
 87— With which cases compare Fcrrie v. Mathie, 1824, 3 S., 174 — M'Lauchlane r. 
 Henderson, 1831, 9 S., 753. (/) 1 Bell's Com., 403— Wilkie v. Wilson, 30th 
 
 Nov. 1811. F. C. (u) Compare the opinions of Lord (Ordinary) Corehouse in 
 
 Macdonald c 1-angton, 1836, 15 S., 303, and Lord Balgray in Smith i'. Murdoch. 1829, 
 7 S., 071, with Young v. Pollock, 1831, 10 S., 8, supra, (r), where a party was pre- 
 sumed to bo the onerous holder of a group of three bills between the same parties and 
 of nearly the same dates, all of tlicm having been indorsed after tlic dates of payment, 
 and one of them bearing ex facie marks of noting. Professor Boll (Princ, g 332), citing 
 Macdonald v. Langton, supra, lays down that if a bill has been noted as dishonoured 
 the indorsee will be liable to all latent exceptions. But neither in that case nor in 
 Smith V. Murdoch, to which the same learned author also refei-s, did the iJoint arise 
 purely. (x) Chitty on Bills (9th cd.), 218— Bayley on Bills, 159— Taylor v. Matlier. 
 
 1789, 3 Durf. and E., 83, note— Brown r. Davis, 1789, ib., 80. See also 1 BeU's Com.. 402. 
 
 i<^ The law of Scotland on this point lias been assimilated to the law <>f EngLmd by
 
 262 pRESUMrTiox that indokser of a bill I 357- 
 
 § 357. The following decisions show what circumstances the 
 Court consider sufficient to exclude the presumption of onerosity, 
 or (if not strong enough for that purpose) sufficient to warrant in- 
 vestigation into the facts by other proof besides the indorsee's writ 
 or oath. 
 
 Where the acceptors of a bill, which they alleged was an accom- 
 modation bill, suspended a charge at the instance of the last of 
 three indorsees, and the charger in his oath on reference, admitted 
 that he was not an onerous holder, but stated that he held as trus- 
 tee for a previous indorsee, whose right he alleged on record was 
 onerous and bona fide, the Court suspended the diligence on cau- 
 tion, although it was contended that the oath had not overcome the 
 presumption of the onerosity either of the prior indorsations or of 
 the acceptance {y). Again, where Kippen, as indorsee of a bill for 
 £139 drawn by James Macgill & Co. on Miller, charged Miller, who 
 alleged that the bill had been fraudulently filled in with that sum 
 instead of £3, as he had intended; and where it appeared that there 
 was no such firm as James Macgill & Co., and that James Macgill 
 was an undischarged bankrupt, and Kippen the concurring creditor 
 in his sec[uestration ; the Court suspended the diligence without 
 caution or consignation (z). Thus also in an action by the holder 
 against the acceptors of a bill blank indorsed, it was held sufficient 
 to overcome the presumption of onerosity that the holder admitted 
 ha^-dng received the bill from his brother, who was the drawer's 
 trustee, that he had given in a statement as to the value which was 
 inconsistent with the terms of the bill, and that the action had not 
 been raised until three years after the bill had fallen due, and after 
 his brother the trustee had become bankrupt (a). In another case 
 
 (v) Thomson & Co. v. Sharp, 1849, 11 D., 887. (2) Miller v. Kippen, 1848, 
 
 n D., 233. See also Carrick v. MiUs, 1828, 6 S., 735. (a) Thomson v. 
 
 M'Laiichlane, 1823, 2 S., 497. 
 
 the IGth section of the Mercantile Amendment Act, which provides :— " When any bill 
 of exchange or promissory note shall, after the passing of this Act, be indorsed after the 
 period when such bill of exchange or promissory note became payable, the indorsee of 
 such bill or note shaU be deemed to have taken the same subject to all objections or 
 exceptions to whicli the said bill or note was subject in the hands of the indorser;" 19 
 and 20 Vict., c. GO. According to the law of England, the latent objections to which an 
 indorsee of an overdue bill is subject, are those intrinsic to the bill, but not objections 
 arising from collateral circumstances, such as a right of set-oflf against the former 
 holder. It would appear that the original absence of consideration is not held to be 
 one of the equities which attach to the instrument ; Byles on Bills, 8tli edition, 154— 
 Mercantile Law Commission of 1855 on the differences between the laws of Scotland 
 and England as to Bills and Notes.
 
 § 357. KECEIVKI) VALI.K FKUM INDOItSEE. 2G3 
 
 tlic drawer iiml iii<Ii)rser of a ])ill hud addressed a letter to one of 
 the acceptors, pi-oiuisiiig to retire it wIkh (hie ; the indorsee was 
 l)rot]ier-in-law to the drawer, and the indorsation was dated after 
 the drawer had executed a trust-deed for Ijehoof of liis creditors, 
 and after a bank (of whicli tlie drawer was agent) had seized on all 
 his property in consequence of his defalcations. In an action hy 
 the indorsee against the representatives of the (jther acceptor, where 
 the pursuer alleged that the consideration had not been money ad- 
 vanced, but business in law agency, the Court, after remitting to 
 an accountant to examine the books of the parties, assoilzied the 
 defenders; and the House of Lords affirmed the judgment (6). 
 Again, J. A. & Co., were drawers of a bill which they discomited 
 with a bank. Having been dishonoured and protested, it was re- 
 tired ; and J. A.'s brother (wdiose name appeared as indorser, and 
 in whose favour a receipt had been granted by tlie bank) charged 
 the acceptor for payment. He suspended on the ground that it 
 was an accommodation bill, and that the hokler was not an onerous 
 indorsee; and in support of his allegation he produced a letter from 
 J. A. & Co., dated the day after the bill had been retired, stating 
 that it was then in their hands ; which letter it was maintained 
 showed that the liill had been retired by J. A. & Co., and had after- 
 w^ards l)een conveyed to the indorsee. The Court, satisfied from 
 these circumstances that the indorsation was not onerous, suspended 
 diligence on the bill, Avithout requiring caution (c). Wliere the 
 acceptor of a bill raised a suspension of a charge by an indorsee on 
 the ground that the bill had been granted in order to induce the 
 drawer to drop a prosecution against the acceptor for theft, that it 
 had been produced at the trial, and that the indorsation was not 
 onerous ; and where it appeared that the indorsation had been pos- 
 terior to the trial, but that a part of the bill, which had borne the 
 date of indorsation, had been torn off ; the Court granted the sus- 
 pension, which the acceptor had only asked to be passed on cau- 
 tion ((/).^^ 
 
 (b) Hunter v. George's Tr., 1832, 10 S., 561 ; aflfd., 7 W. S., 333. The opinion of 
 Lord Wynford (wlio proposed the judgment in tlie House of Lords) tends towards re- 
 laxing the presumption in favour of onerosity. But Lord Moncreiif observed, in Miller 
 r. Kippen (11 D., 23.5), that he would not be inclined to rest much on the opinion of 
 that learned Lord ; as the rules on this branch of Scotch law seem to have been new to 
 him, and to have amazed him. (c) Ramsay v. Aitken, 182G, 4 S., 390. With tliis 
 
 case compare JIuir i,-. M'Dcmald. 1831, S., 535. (d) Kennedy v. Cameron, 1823. 
 
 2 S., 102. 
 
 11 In an action by X. B., as holder of a bill drawn by A. B. & Co., against ihe ac-
 
 2i;4 PRESUMPTION THAT INDORSEE OF A BILL § 358- 
 
 § 358. On tlie other hand, the })rcsiimpti()n of onerosity has 
 been a])plicd in favour of the last holder of a bill blank indorsed, 
 although he had received it from a stranger on discount, after it 
 had been stolen from the proper owner (e).^ Nor will the presump- 
 tion be overcome merely by mora to raise action on the bill ; six 
 years having been fixed by statute as its limit. Accordingly the 
 presumption has been held to apply where an indorsee had held the 
 bill for nearly five years without claiming upon it, his account of 
 how he had acquired it, and of the mora, being satisfactory (/). 
 Before the introduction of the sexennial prescription, however, it 
 was held that the lapse of three years and upwards without demand 
 on the bill deprived the indorsee of his presumption of onerosity {g). 
 Where the indorsees of a bill for £27 charged the acceptor and 
 drawer, who suspended on the ground {inter alia) that they had 
 
 (e) Scott V. Kilmarnock Bank, 27tli February 1812, F. C— Lambton v. Marshall, 
 21st June 1799, F. C. See also Crawford v. Royal Bank, 1749, M., 875, and Swinton 
 V. Beveridge, 1799, M., 10,105, where the same principle was applied as to stolen bank 
 notes. In none of these cases was the holder privy to the theft. In Swinton v. Beve- 
 ridge the public prosecutor had purchased the notes knowing them to have been stolen, 
 and his right to them was sustained against that of the party from whom they had been 
 stolen, as lie had given value for them to the previous holder. (/) Ferrie v. 
 
 Mathic, 1824, 3 S., 174— M'Gown v. M'Kellar, 1826, 4 S., 498. See also M'Lauchlane 
 V. Henderson, 1831, 9 S., 753— and Young v. Pollock, 1831, 10 S., 8. su2wa, \ 354 (r). 
 
 (^) See cases in Brown's Synop., 244, 5. 
 
 ceptor, it appeared that the bill had been granted for accommodation of A. B. & Co., 
 of which firm A. B., brother of N. B., was sole partner, that the estates of A. B. & Co. 
 had been sequestrated, but no claim was made in the sequestration by N. B., that 
 there were no entries in N. B.'s books relative to the bill, that N. B. had had access to 
 the repositories of A. B., and that there had been a delay of three years in bringing the 
 action. Proceeding on these and other circumstances, the Lord Ordinary (Anderson) 
 held that N. B. was not entitled to the privileges of a hona fide onerous holder. The 
 Court altered that interlocutor, and appointed the charger to state where he got the bill 
 and what he gave for it; and they afterwards, under commission, recovered documen- 
 tary evidence. They came to the conclusion that the pursuer, a conjunct and confi- 
 dent person, had failed to show that he acquired the bill for value, and that it was 
 proved to have been an accommodation bill, and therefore they found him not entitled 
 to the privilege of a hona fide onerous holder, and assoilzied the defender. The Lord 
 Justice-Clerk (Hope) said, that to find the pursuer not a hona fide holder, would have 
 been enough to support the judgment, whether he was an onerous holder or not; Ban- 
 natyne v. Wilson, 1855, 18 D., 230— Middleton v. Rutherglen, 18G1, 23 D., 526. 
 
 12 This is not now law ; by the 15th section of the act 19 and 20 Vict., c. 60 (Mercan- 
 tile Amendment Act), it is provided, that " Where any bill or note has been lost, stolen, 
 or fraudiilently obtained, the holder of such bill or note, sueing or doing diligence 
 thereon, shall be bound to prove that value was given by him for the same; but such 
 proof may be made by parole evidence."
 
 § 3(;(). KECEIVED VALUE FltOM INDORSEE. 205 
 
 granted to llic imlorsees a new liill I'di' £47, in order tliat it miglit 
 be discounted, and its proceeds applieil in cxtinctifin of" tlie liill 
 charged on ; tlie indorsees alleging, on the other hand, that they 
 only held the £47 bill in security ol' the other; the Court held that 
 the suspender's allegation could only Ite proved by the charger's 
 writ tir oath (//). 
 
 § 351). The presumption in lavonr uf an indorsee proceeds on 
 the footing that he acquired the bill with the legal consent of the 
 previous holder ; and its application, therefore, is limited to cases 
 Avhich imjtugn the onerosity of the transaction from Avhicli his right 
 arose. Where, however, the objection is that the indorsee acquired 
 the bill by fraud, and that therefore ho is not entitled to retain or 
 use it for any purpose whatever, the presumption in question has 
 no place ; and the averment may be proved jjrow^ de Jure, although 
 there should be nothing in the patent or admitted facts to call the 
 holder's right in question (/). Tins rule, for example, must apply 
 where it is allcge(l that the indorsation is forged, or that the party 
 holding a liill Idank indorsed stole it from the previous holder. In- 
 deed, if the proof of such averments were limited to the holder's 
 writ or oath, the consequence Avould be that frauds of this kind 
 would cscajje detection ; since the holder would take care not to 
 leave written evidence of his act ; and he would be entitled to de- 
 cline examination on oath upon the facts, as that would involve 
 him in the risk of a crimin;d prosecution.^^ 
 
 § 360. In order to bring the case within the principle thus 
 stated, it is not enough for the party who challenges an indorsation 
 to aver either that the indorsee conspired with the indorser for the 
 
 (A) Haig V. Service, 1832, 11 S., 145. («) The distinction stated in the text 
 
 is supported by the cases cited supra, § 344. See also Wilson v. Mitchell, 1827, 5 S., 
 318, where a party charged as payee and indorser of a promissory note alleged that the 
 indorsation was a forgery, and the Court being satisfied by a comparison of the indor- 
 sation with specimens of the party's genuine handwriting, suspended the diligence. 
 Again, in an action by Fyfe against Edward for delivery of a bill which the defender 
 some time previously had gi-anted to the pursuer, where the latter proved that the bill 
 had been abstracted from the hands of a messenger with whom lie had deposited it, the 
 Court ordered the bill to be restored ; Edward v. Fyfe, 1823, 2 S., 431. So in Cairns v. 
 Marianski, 1850, 12 D., 020 (afl'd. on bill of exceptions, 1 Mactj.. 212), where the heir of 
 an olil man got decree of reduction of [inter alia) certain indorsations to bills in favour 
 of the old man's son-in-law, on the ground that they had been impetrated from him by 
 fraud and circumvention when he was weak and facile ; the proof was unlimited. See 
 also Smith v. Stark. 1831, 10 S.. 150— Wallace v. Scott, 1848, 10 D., 1277— Lcishman 
 V. Mercer, 1822, 1 S.. 353. 
 
 13 Sor ly and 20 Vict., c. 00, J 15; supra, \ 358, note 11.
 
 2GG PRESUMPTION THAT INDORSEE OF A BILL, &C. § 360- 
 
 purpose of defeating latent objections to the liill, or tliat tlie indorsee 
 frandnlentlj used the indorsation for a different purpose from that 
 wliich the indorser intended. The ordinary cases against the oner- 
 osity of an indorsation imply one or other of these frauds. It is 
 only where the objector directly impugns the indorsee's right to 
 hold or use the bill, and condescends specifically on a fraudulent 
 acquisition of it, that the principle referred to applies, and that the 
 proof of the fraud is unlimited (k). 
 
 § 361. In several cases where there was an appearance of col- 
 lusion between the indorsee and the drawer, the Court allowed the 
 indorsee to be judicially examined (l). But they have always re- 
 fused this mode of investigation when the allegations against oner- 
 osity were not supported l)y circumstances of a suspicious charac- 
 ter {m). 
 
 § 362. The Court also allow an investigation into the books of 
 the indorsee and indorser where there is some ground for suspecting 
 non-onerosit}^ (w) ; and they will prol)ably not refuse to suspend 
 diligence on the bill upon caution, where the allegation of non- 
 onerosity, although not supported by the admitted facts, is offered 
 to be proved from the indorsee's books (o). 
 
 § 363. Where a notary public had been employed by bank 
 agents to protest their bills, under an arrangement by which he 
 only drew one-fourth -of his business charges, and they received the 
 remainder, in an action of damages at their instance against him 
 on account of a blunder which he had committed, the Court found 
 that he might prove prout dejure his averment that they were not 
 onerous holders of the bill, and consequently would not have re- 
 ceived the amount of the bill if it had been formally protested (p). 
 The Court considered that, apart from any question as to the illicit 
 nature of the agreement, the rule that non-onerosity could only be 
 proved by the indorsee's writ or oath, did not apply to sucli a case. 
 
 [k) On the subject of this paragraph see Burns v. Burns, 1841, 3 D., 1273, per Lord 
 FuUerton— Little v. Smith, 1845, 9 D., 764, per L. Moncreiff— Crawford v. Robertson, 
 30th June 1814, F. C— M'Gown v. M'Kellar, 1820, 4 S., 498— Young v. Pollock, 1831, 
 10 S., 8— See contra, per Lord Justice-Clerk in Little v. Smith, 8 D., 269— See §§ 345 
 and 353, as to frauds against the indorser's creditors. (Z) Campbell v. Turner, 
 
 1822, 1 S., 292— Cairncross v. Mitchell, 1824, 2 S., 774— Fell v. Lyon, 1830, 8 S, 543 
 —Smith V. Stark, 1831, 10 S., 150. See also Little v. Smith, 1845, 8 D., 265— Malcolm 
 V. BaUendene, 1835, 13 S., 1021. (rn) Dunlop v. Rcid, 1827, 5 S., 796— 
 
 Campbell v. Hill, 1826, ib., 54. {n) Finlayson v. Murray, 1822, 1 S., 569— 
 
 Pentland v. Bell, 1822, 1 S.. 464— Farquhar v. Sloan, 1830, 9 S., 112— Campbell v. 
 Dryden, 1824, 3 S., 320. (o) Cases in preceding note, comjiared with Monro 
 
 V. Ayton, 1822, 1 S.. 338. (^)) Murray v. Taylor, 1829, (i S., 802.
 
 § HG5. PRESUMPTION OF ONEROSITY. 267 
 
 IV. Presumption ofOnerositij of Foreign Bills and Indorsations. 
 
 § 3G4. When action is rai.sL'(l in Scotland (jn a Ijill Avhicli was 
 granted or indorsed in a foreign country, the question sometimes 
 arises, wlictlier the defender's averment of non-onerosity must be 
 proved by writ or oatli, or whether it may be instructed ^^row^ de 
 jure, if such proof is competent Ijy the lex loci contractus. The 
 leading authority in this branch of international law is the case of 
 Don V. Lippmann, decided by Lord Brougham in the House of 
 Lords (v). In that case the action was against the representatives 
 of the acceptor of a bill drawn and accepted in France, and admitted 
 to be payable there, the acceptor being a Scotch landed proprietor, 
 who had returned to Scotland before the bill fell due. The de- 
 fenders pleaded that, as the action had not been raised till nineteen 
 years after the date of payment, the case came under the sexennial 
 prescription ; wlicreas the pursuers contended that it must be de- 
 termined by the prescription existing in France, the locus contrac- 
 tus. The Court of Session having sustained the latter plea, the 
 House of Lords reversed the judgment, and found that the sexen- 
 nial prescription ai)plicd, and that therefore the pursuer could not 
 succeed unless he proved by the defender's WTit or oath both the 
 original constitution and the subsistence of the debt in the bill. 
 The ground of reversal was, that while the lex loci contractus fixes 
 the nature and effect of the obligation undertaken by the parties, 
 the lex fori must regulate the mode by which the contract may be 
 enforced, and by which any defences to its validity or subsistence 
 may be investigated and proved. 
 
 § 365. This decision expressly regulates those cases only where 
 the mode of proof is limited by statute in consequence of the credi- 
 tor having delayed to raise his action. But the principle of the de- 
 cision applies ecpially to cases where the creditor's proof is limited 
 on account of the nature of his allegations. Accordingly, where a 
 promissory note, dated in Edinbm-gh, granted by a Scotsman re- 
 siding there, and payable to a London comiJany, but without a spe- 
 cified place of payment, had in England been indorsed by the payee 
 to an English company, and by them to an English bank, in a sus- 
 pension raised by the granter of a charge, at the instance of the 
 l)ank, it was held that the bill was a Scotch document, capable of 
 
 (r) 1837. 2 S. and JI'L.. 682, reversing 14 S.. 241.
 
 268 PRESUMPTION OF ONEKOSITY. § 365- 
 
 being endorsed althoiigli it did not hear to be jiayable " to order," 
 and tbat the granter's averments against the onerositj of tbe indor- 
 sation coidd only be proved by writ or oath according to Scotch 
 hiw, and not^ro?^^ dejure as in England (s). It was here admitted, 
 both b}' the bench and the bar, that if the note had been found to 
 be an English document, the indorsation would have been ineffec- 
 tual ; as the note did not bear to be payable " to order," which in 
 England is essential to make such a writing indorsable. 
 
 Again, where a bill drawn by an English firm upon their agent 
 in Scotland, and payable in England, had been indorsed by the 
 drawers to their bankers in the latter country, in a suspension at 
 the instance of the acceptor, it was held that the bill was a Scotch 
 document, and that the allegation that the indorsation was not 
 onerous could only be proved by writ or oath, according to the prac- 
 tice in this country {t). 
 
 § 366. In both of these cases it will be observed that the bill 
 was a Scotch document ; and therefore they do not expressly settle 
 whether, in an action in Scotland on a foreign bill, the defence that 
 the acceptance or indorsation is not onerous, can be proved only by 
 the creditor's ^^^.■it or oath. But there can be little or no doubt that, 
 according to the principle of these cases, and of the case of Don v. 
 Lippmann (above referred to), the Court of the debtors domicile 
 ought to apply their own rules of evidence for determining the 
 question of onerosity, whether the document was of Scotch or of 
 foreign origin (it). 
 
 Some farther illustrations on this subject will be found in the 
 chapter upon international questions in the law of prescription.^^ 
 
 (s) Eobertson v. Burdeldn aud Co., 1843, 6 D., 17. {t) Strathern v. Master- 
 
 man and Co., 1850, 12 D., 1087. {^i) The view stated in the text is opposed 
 
 to the case of Glyn v. Johnstone, 1830, 8 S., 889, where a bill accepted in Scotland by 
 Scotsmen, payable in London, having been indorsed to a London company, and by them 
 been discounted with and indorsed to a bank, — in an action in the Court of Session by 
 the bank against the acceptors, it was held that the bill was an English debt, that the 
 defender's allegations of non-onerosity in the indorsation could be proved prout de jure, 
 according to the practice in England, and that the Scotch rule, which required proof by 
 the indorsee's writ or oath, did not apply. That decision, however, it is conceived, 
 must now be regarded as overturned by the case of Don v. Lippmann. Its authority 
 as a precedent has been challenged in that case, as well as in the cases of Robertson v. 
 Burdekin, and Strathern v. Masterman and Co., noticed in the preceding paragraphs. 
 
 I"* All bills drawn within the United Kingdom payable to, or drawn on, any party 
 within the LTuited Kingdom, arc now inland bills ; 11) ami 20 Vict., c. GO, ? 12.
 
 § 367. PRESUxMI'TION AGAINST DONATION. 269 
 
 CHAPTER VL— OF THE rRESCMPTION AGAINST DONATION. 
 
 I. Of the Presumption cjenerally* 
 
 § 367. As ijiaiikiiul do iiul (Vcqiiently x^rcjudicc themselves to 
 benefit others, a deed or trausactioii is held not to he a donation if 
 the circnmstances are fairly consistent with a dili'erent inference, 
 e.g., loan, deposit, or sale (a). This is a weak presumption, and 
 may be overcome not only by direct evidence prout tie Jure, but by 
 contrary inferences drawn from tlie relative position of the parties, 
 the nature of the right claimed, and the circumstances attending 
 the transaction. The older authorities press this presumption too 
 far ; some of them holding that nothing should be held a donation 
 if the facts could l)ear any other construction. The proper prin- 
 ciple is merely that the burden of proving donation lies on the 
 party who avers it ; and that the mere fact that a sum of money 
 has been placed by one person in the hands of another is not of it- 
 self sufficient to i)rove that it was deposited animo donandi (6). 
 Where bills were challenged as having been obtained from a party 
 without value and on false representations, and where the holders 
 alleged that they received them l'ru)ii liim as donations, the Court 
 required the challenger to stand pursuer of the issue, although he 
 pleaded that the presumption against donations threw the onus ixro- 
 handi on the holders of the bills (&*).^ 
 
 * This prt'sumption is not properly stated in the brocard donatio non premmitur ; for 
 the principle is not merely that there is no presumption in favour of donation, hut that 
 there is a slight presumption against it. (a) Stair, 1, 8, 2,'and 4, 45, 17 (14) 
 
 — Ersk., 3, 3, 92. (6) British Linen Co. v. Martin, 1849, 11 D., 1004— Heron 
 
 V. M'Geogli, 1851, 14 D., 30, per Lord Fullerton. (6«-) Wilkic v. Chalmers, 
 
 1854, 16 D., 961. 
 
 * Perhaps the presumption is not so weak as is implied in the text. The general 
 statement, that it may be overcome by evidence prout dc jure, is believed to be good law; 
 but there have been important dicta lately to the opiwsite effect. When one is in pos- 
 session of money received by him from another, it will be held that he got it under an 
 obligation to repay ; and if he maintains that he got it on any other footing, he must 
 prove it. Between loan and donation there is, as the general rule, no hesitation ; the 
 law presumes loan, not donation. "When the receipt of money is proved by a simple 
 acknowledgment, loan is presumed ; but it is thought competent to prove by parole that 
 the money was received as a gift; Eraser c. Bruce, 1857, 20 D., 115. "W'here receipt 
 of money was acknowledged in these terms, '• Received £30, as per agreement," it was 
 held competent to prove by parole that the money was given and received as a dona- 
 tion ; and the majority of the Court thought that the words, " as per agreement,"'
 
 270 PRESUMPTION AGAINST DONATION. § 808- 
 
 § 368. I'aymcnts by a parent or one in loco parentis will in 
 doubtful cases be regarded as made expietafe, and not as loans or 
 
 aflfected neither the onus nor tlie competency of discharging the onus by parole. 
 They held that the evidence had not overcome the legal presumption for loan ; hut 
 the Lord Justice-Clerk (Inglis) held that the document presented an apparent am- 
 biguity, which the party using it was bound to remove, and that, as he had not done 
 so, he should not recover ; Thomson v. Geikie, 18G1, 23 D., 693. It is not easy to 
 reconcile this case with the opinions of some of the judges in another recent case, in 
 which receipt of money was acknowledged in these terms, " I acknowledge the receipt 
 of £100, and agree to pay interest on the same, if demanded." Lord Benholme (Ordi- 
 nary) held, in an action on this document, that the defence that the money was a gift 
 must be established by the defender, but that he might prove it prout de jure. The Se- 
 cond Division recalled his Interlocutor, and found that the defence could not be proved 
 by parole evidence. Perhaps the ground of judgment was that the receipt was an ad- 
 mission of a loan, and that donation could not be proved by parole in opposition to its 
 terms ; but the opinions of the Lord Justice-Clerk and Lord Cowun went far beyond 
 that. The Lord Justice-Clerk laid down, without any qualification, as the doctrine of 
 the law of Scotland, that " a donation cannot be proved by parole "; and Lord Cowan, 
 as expressly, said "donation of money can only be proved scripto vel juramento." 
 
 Questions as to the nature and force of this presumption, and the evidence by which 
 it may be overcome, have occurred in reference to the effect of possession of an in- 
 dorsed deposit-receipt. It seems quite clear that the possession of an indorsed deposit- 
 receipt, or of money drawn by means of an indorsed deposit-receipt, does not remove 
 the presumption against donation, or relieve the party from the necessity of proving his 
 defence of donation. But as to the manner in which the presumption may be overcome, 
 the recent cases seem to leave room for distinction, and perhaps for hesitation. Where 
 an indorsee of a deposit-receipt uplifted the money after the death of the indorser, and 
 alleged, in defence to an action by the executor of the indorser, that the indorsation 
 had been made by the indorser with the intention of making a gift to the sister of the 
 indorsee, the Court held that the defender's offer to prove this defence by his own testi- 
 mony (not his oath on reference), was incompetent. If his evidence was incompetent, 
 so, necessarily, would all other parole evidence have been, however sufficient, if compe- 
 tent. The question, whether the indorsation was not a mere mandate recalled by the 
 death of the mandant, in which case the defender would have had no title to uplift the 
 money, was discussed in this case, but was not made the ground of judgment, which 
 was the incompetency of j)arole evidence to establish donation ; Barstow v. Inglis, 1857, 
 20 D., 230. On the other hand, where, in an action by an executrix for £1000, which 
 had belonged to the deceased, the defence was that the deceased had presented the 
 money to the defender by indorsing a deposit-receipt, and that the defender had drawn 
 the money before the death of the indorser, the Court allowed the defender to take an 
 issue of donation ; Mackellar v. Hunter, 1858, 20 D., 761. And in another case, in an 
 action by the representatives of a deceased against her agent, calling on him to ac- 
 count for a bill, it was held that his defence, that the deceased handed him the bill 
 and directed him to make a gift of it to a third party, and that he had done so before 
 his client's death, might be proved ^;ro?/< de jure, as it resolved into a defence of mandate; 
 and Lord Cowan, delivering the judgment of the Court, took the distinction between 
 the case of an attempt to enforce donation not completed in the lifetime of the donor, 
 and of an attempt to set aside a donation completed during his life. In the former case, 
 parole evidence, his Lordship held, would be incompetent; because promise or obligation
 
 § 370. PRESUMPTION AGAINST DONATION. 271 
 
 advances. This Wiis lidil wlicrc a lallicr liad |iiir(-liasocl up a caj)- 
 taincy for his son when a lieutenant, ami regularly entered the pay- 
 ment in an account in his son's name in his l)Ook.s (c) ; where a 
 father had made payments to his son and heir, which were not 
 more tlian sufficient for his maintenance and education (d) ; and 
 where a wealthy uncle had paid sums fur the education and outfit 
 of a nephew and niece in poor circumstances, entering them in his 
 books, but not taking any document of debt for them (e). Even 
 where an elder brother in good circumstances had assisted in main- 
 taining his younger brother during his apprenticeship, entering the 
 payments in his books, but without taking any document of debt 
 from the younger brother, or intimating to him that the i)ayments 
 were meant merely as loans, tlie Court held that they had been 
 donations ; the claim for repayment having been made by the elder 
 brother's creditors in his sequestration (/). Again, on the ground 
 of presumed intention, properties Avhich a father had iiurchased in 
 order to give votes to his sons were held as donations to tliem, al- 
 though his settlement declared that any sums due by them at his 
 death should bo im])utcd to their provisioiis (</). And where one 
 spent £67,000 in paying liis son-in-law's debts, no entry of it ap- 
 pearing in his books, and no vouclier I'ur it being found in his re- 
 positories, it was held to have been ultimately a donation, althougli 
 
 (c) MacDougall's Or. v. IMacDongall, 1804, M., "Bankrupt," Appx. No. 21. 
 
 (d) Hislop V. Hislop, 18tli Jan. 1811, F. C. (e) Cainpl)t41 v. M'Alistcr. 
 1827, 5 S., 219— Wilson v. Pater.son, 1820, 4 S., 817. (/) Drummoud v. Swayne, 
 1834^ 12 S., 342. (ff) AVliyte v. W'hyte, 1841, 3 D., 468. 
 
 to make a donation cannot 1)0 proved by parole ; his Lordship indicated an opinion that, 
 in the latter case, parole proof might be competent ; Mackenzie v. Brodle, 1850, 21 1)., 
 1048. In a still more recent case, in an action against the housekeeper of a deceased for 
 the contents of four deposit-receipts, the defence was that they had been indoi-sed in gift : 
 and the money in three of them had been iiplifted before the death of the indorser, and 
 in the other after her death. Proof in the case was taken in the Sherifl'-court ; and in 
 the First Division it was dealt with as a case in which the onus was upon the defender, 
 and in which the evidence did not satisfy the onus. No distinction was taken in the 
 opinions between the tliree receipts drawn before death and the one drawn after it, and 
 the opinions seem to assume the competency of parole proof in both cases ; Allan c. 
 Beveridge or Munnoch. 1801,23 D., 417, 33 Jur., 200. In an action by executors 
 ao'ainst a family doctor for debts due to the deceased, the defender produced the receipts 
 which lie had granted, and which he said had been handed to him by the deceased 
 in order gratuitously to discharge the debt ; the Court adjusted an issue to try wliether 
 the defender had obtained possession of the receipts, mthout the debt having been paid 
 or otherwise extinguished, and intimated that the defender might, xsnthout a counter 
 issue, establish liis defence of donation ; Knox r. Crawford, 1862, 24 D., 1088.
 
 272 PRESUMPTION AGAINST DONATION. § 3G8- 
 
 at first it seemed to have been meant as a loan. Tliis is a strong 
 case, as the fatiier-in-law had received interest dnring his hfe on 
 the amount {Ji). 
 
 § 369. A different view was taken in regard to payments made 
 in 1811 and the three following 3'ears by a practising writer in 
 Dumfries to his brother when a divinity student in Edinburgh, to 
 help to maintain him at college, and to relieve a temporary neces- 
 sity ; the latter having in 1815, and again in 1832, written to his 
 brother (it seemed spontaneously) with a note of the sums and of 
 some counter-payments. Although the brother Avho made the 
 advances had not entered them in his books, and had died in 1834 
 without it appearing that he had ever demanded re-payment, the 
 Court sustained a claim therefor brought several years afterwards 
 by his representatives (/). Again, where a party who possessed 
 slender means^, and had several relations to whom he had bequeathed 
 sums by his settlement, blank indorsed a deposit-receipt for £200, 
 and placed it in the hands of one of his nephews, whom he had 
 named an executor and residuary legatee ; and where the nephew 
 uphfted the contents of the receipt, and the uncle died six weeks 
 afterwards without having required the nephew to pay him the 
 amount, which, if a gift to the nephew, would have materially en- 
 croached on the bequests to the deceased's relations, and in one 
 view might have absorbed the whole, — the Court held that there 
 was not sufficient proof of the nephew's averments that the receipt 
 had lieen meant as a donation to him (k). A similar decision was 
 pronounced in a case where a party, who was bed-rid from paralysis, 
 liad, shortly after executing a trust-deed of settlement under which 
 the trustees were residuary legatees, handed to one of the trustees 
 deposit-receipts for sums which nearly exhausted the whole resi- 
 due. The Court held that donation was not to be inferred from the 
 mere possession of the documents ; and that it lay with the party 
 alleging donation to prove it ; Avhich in the circumstances he had 
 failed to do (I). In the two cases last mentioned it was an import- 
 ant circumstance against the inference of donation, that the party 
 who received the documents of debt had been appointed by the 
 alleged donor to administer his funds. In another case, where a 
 
 (A) Farquhar's Tr. v. Stewart, 1842, 3 D., 658. («) Murray v. Murray, 
 
 1843, 6 D., 176. (/c) Henderson v. M'Culloch, 1839, 1 D., 927. See Cruik- 
 
 shank v. Cruikshank, 1853, 16 D., 168, where a deposit-receipt taken by one in his own 
 and his son's name for a sum equal to nearly his whole means was held not to be a 
 donation mortis causa to the latter. (0 Heron ;;. M'Geoch, 1851, 14 D., 25. 
 
 See also Harper i-. Hume, 1850, 22 Sc. .Jui-., 577.
 
 §371. PRESUMPTION AGAINST DONATION. 273 
 
 person the day before liis deatli iliiccteJ his rlcrk to draw £800 
 from his hank account, and to deposit it again in Ijank under a re- 
 ceipt in name of his house-keeper, tlie Court held that it had been 
 meant as a donation ; tlic confidence and kindly regard which the 
 deceased had shown b. the house-keeper, and his liberal provision 
 for her in his trust-deed, making that the most proltablc inference 
 in the circumstances (m).^ 
 
 § 370. When the question is whether sums given or payments 
 made on behalf of a certain person are to be imputed as part of a 
 provision secured to him by the settlement of the party who made 
 the payment, the presumption against donation does not apjily; and 
 each case nmst be decided on tlie terms of the relative deeds and 
 its own circumstances {n). 
 
 § 371. In claims of remuneration for maintaining a person at 
 bed and board, the presumption against donation comes into con- 
 flict with the rights of hospitality and benevolence ; and it is some- 
 times difficult to determine whether the alimony was gratuitous or 
 the reverse. If the person entertained was major and capable of 
 contracting obligations, it ^vill be held m duhio that the entertain- 
 ment was given to him from motives of hospitality, or in consider- 
 ation for past or expected services ; because the host might have 
 stipulated for remuneration if he had meant tlie entertainment not 
 to be gratuitous (o). This also holds when the entertainment is to 
 a minor whose father is alive (p), or who has tutors or curators ; 
 because the intention to exact board should have been embodied in 
 a mutual contract with the minor or those acting for him (r). If, 
 however, the host earns his livelihood by entertaining strangers, ali- 
 
 (m) British Linen Co. v. Martin, 1849, 11 D., 1004. («) Compare Fj-fe v. 
 
 Kedslic, 1847, 9 D.^ 853— Buchanan v. Cra^-ford, 1822, 1 S., 385; affirmed 2 Sh. Ap., 
 445_Whyte V. Whyte, 1841, 3 D., 4G8. See also Scott v. Scott, 1846, 8 D., 791— and 
 mjjra, § 222, et seq. (p) Stair, 1, 8, 2— Ersk., 3, 3, 92. (y^) Ersk., 
 
 supra — Cases in M., 11,425, G. But see Steven v. Simpson, 1791, M.. 11.4.38, where a 
 lad, having quarrelled with his stepmother, had been taken into the house of his uncle, 
 and there maintained for a year and a-half with his father's knowledge ; and the Court, 
 on the father's death, sustained the uncle's claim for payment of the aliment. 
 
 (r) Ersk., 3, 3, 92. 
 
 2 Allan V. Beveridgc or Muunoch, 1801, 23 D., 417, 33 Scot. Jur., 209, supra, ? 367. 
 note '. Where a widow laid out money in improving the heritage of her son, the heir 
 (then a pupil), which heritage she liferentcd, it was held in an accounting between the 
 heir and his mother's representatives, that the sums expended were not to be looked on 
 as donations, but that the representatives wore entitled to take credit for them so far 
 as the heir took benefit ; Paterson v. Greig, 1862, 24 D., 1370. This case was taken to 
 appeal, but compromised. 
 
 VOL I. S
 
 274 PRESUMPTION AGAINST DONATION. § 371- 
 
 luoiiy, -wlietlier given to a major or to a minor, will not be regarded 
 as gratuitous (s). Wlien the person alimented is a lunatic, or a pupil 
 or minor without tutors or curators, and the host is not a near re- 
 lative, the entertainment will, in dubio, he held not to be gratuitous, 
 because there was no one with whom the party could have made a 
 contract for repayment (J). And the same principle will be applied 
 to alimony afforded to a pupil whose father or tutors are out of the 
 country (m). But if the host is either the mother or in loco parentis 
 of such i:)upil or insane person, the aliment will be considered as 
 furnished from natural affection, or from a sense of natural obliga- 
 tion, and therefore there mil not be a good claim for repayment, 
 although the person maintained had not a father or tutors with 
 whom an onerous contract could have been made (x). Yet a claim 
 for recompense wdll be sustained if the person alimented had such 
 independent means as made benevolence unnecessary (?/), It is not 
 presumed that even the father of one who has an independency in- 
 tended to maintain and educate him without remuneration {z). But 
 the circumstance tliat a pupil or lunatic succeeded to an indepen- 
 dency Avhile he Avas being thus supported will only give a claim for 
 the expense incurred subsequently, not for bygone alimony, which 
 at the time was meant to be gratuitous («). Where a lady who had 
 a considerable fortune had resided with her brother-in-law from 
 childhood to forty years of age, on her subsequent marriage a claim 
 at his instance for aliment during the wdiole period was sustained 
 against her and her husband ; because there certainly was a good 
 claim for the alimony furnished during her minority, and it w^as 
 to be regarded as continued afterwards per tacitam reconventio- 
 ncm (b). 
 
 § 372. The presumption against donation does not apply to 
 deeds inter virum et uxorem, which the granter claims right to re- 
 voke as gifts. The party founding on a deed of that nature must 
 
 (#) Stair, 1, 8, 2 (" lu all cases, &c.") — Ersk., supra — Forrest v. Carstairs, 1715, M., 
 9713, 11,098. (/) Stair, suj)ra — Ersk., supra. (w) Ersk., supra — 
 
 See Chisholm v. Steedman, 1707, M., 11,428, one of the reports of -wliich states that the 
 claim was sustained ; the other that it was unsuccessful. [x) Stair, supra — 
 
 Ersk., supra— Kex v. Ruthven, 1637, M., 11,436— Hamilton v. Symington, 1G67, M., 
 382— Guthrie v. Mackerston, 1672, M., 10,137— Row v. Row, 167G, M., 11,436. See 
 also Gourlay v. Urquhart, 1C97, M., 11,438. {y) Ersk., supra — L. Lugton v. 
 
 Hepburn, 1672, M., 11,435 — Row v. Row, supjra. (z) Ersk., supra — See infra, 
 
 i 37-5. (a) Ersk., 3, 3, 92— Home v. Wcdderburn, 1757, M., 412— But see Lady 
 
 Lugton I'. Hepburn, 1672, M., 11,435, and Gourlay v. Urquhart, 1697, M., 11,438. 
 
 (fj) Spence v. Fowlis, 1681, M., 11,437.
 
 § B74. PRESUMPTION AGAINST DONATION. 1^7") 
 
 ](;;i(l evidence of its alk-ged onerous ciiiise ; tin- narrative of ouorosity 
 
 iinl liciiii;- probative (c).^ 
 
 II. Of the Presumxition cujainst Donation by o Dehfor la In'.s 
 
 Creditor* 
 
 § 373. Tlic i.rcsinn].tion a,<>ainst donation is generally strong-ost 
 in regard to a deed or i)aynient l)y a debtor to his creditor ; because 
 one is not likely to make a present and continue under an obliga- 
 tion wlicn the .same act might set him free {d). This prcsumptiou 
 has place whether the alleged donation was made de presenti or 
 mortis causa, and whether the parties are, or are not, relaticjns. 
 But each ease depends on its individual circumstances ; and the 
 Court will take into view every fact which tlirows light upon the 
 debtor's intention, — as, for example, the relationship or intimacy of 
 the parties, the nature of the obligation, and of the supposed gift, 
 and the occasion and way in which the latter was made (e). The 
 application of this principle is illustrated by the following cases. 
 
 § 374. Where one who had in his hands funds belonging to his 
 son, major and forisfamiliated, made payments to him and on his 
 behalf, these were held not to be donations, although the father 
 had not entered them in his books, or kept vouchers for them (/). 
 Again, a marriage was dissolved by the wife's death in 1809 ; where- 
 upon £400 fell to her sou as his share of the joint estate of his 
 parents. In 1819 he received " in free gift " from his father (\A'ith 
 
 (c) Jardine v. Currie, 1830, 8 S„ 937— Gray v. Scott, 1703, M., 12,602. 
 
 * This presumption is usually stated by the brocard debitor non prestmitur donare. 
 But that docs not adecxuately express a presumption against such donations. 
 
 (rf) Stair, 1, 8, 2— Ersk., 3, 3, 93. (e) Per Lord Justice-Clerk Hope in 
 
 Scott t'. Scott, 1846, 8 D., 791. {/) Fraser v. M'Gown, 1839. 2 D., 144— Black 
 
 V. Booth, 1835, 14 S., 113. 
 
 3 When a husband makes a gift to his wife of such a Iciud that she cannot have the 
 benefit of it till after his death, it will be a question of circumstances whether that will 
 be regarded as an onerous proAision or as a revocable donation ; and, if the wife is not 
 otherwise jirovidt'd for, the presumption will probably be that it is an onerous provision. 
 Thus where a husband insured his life in name of his wife, was sequestrated, and died 
 while undischarged ; the Court of Session held that the policy was a donation revoked 
 by the sequestration, and tiiat, therefore, the sum in it was part of the sequestrated es- 
 tate ; but the House of Lords altered and preferred the widow, holding that, as she 
 was not otherwise provided for, the policy was an onerous provision, not revocable, and 
 not cut down by the sequestration; Craig v. Galloway, 1860, 22 D., 1211 ; rev. 1801, 
 4 Macqueen, 267. 
 
 s2
 
 •27(J PRESUMPTION AGAINST DONATION. § 374- 
 
 wliom he had boon for some time in partiicrsliip as a jcAveller), 
 goods worth £1300, and he discharged his father of that sum as 
 part of any provision the father might make to him. In 1831 he 
 was sequestrated ; and in the sworn inventory of his assets he took 
 no notice of the £400. In 1838, after being discharged under a 
 composition contract, he claimed that sum from his father. The 
 Court, without hearing the father's counsel, rejected the claim (j/). 
 
 § 375. Where the father's outlay is in the way of education 
 and maintenance, the question is sometimes difficult. If the father 
 had actually money in his hands belonging to the child, such out- 
 lays may be allowed to compensate the interest (Ji). But a different 
 view ^^'ill probably be taken where the father's debt is contained in 
 a formal obligation. Thus where a father had borrowed money on 
 bond from certain trustees for his children, and had, many years 
 afterwards, been sequestrated, a claim by his children for arrears of 
 interest was held not to have been extinguished b}^ the aliment fur- 
 nisliod by him to them, there being no appearance of an intention 
 on his part to keep up a counter-claim therefor (i). The Court also 
 refused to impute towards a provision by marriage-contract sums 
 which a father had expended in clothes and money payments to 
 his daughter, who had been left a widow with a family unprovided 
 for, had lived in his house during a considerable part of the time 
 over Avhich the advances extended, and to whom lie had given a 
 regular yearly allowance from the commencement of her widow- 
 hood (k). 
 
 § 376. AVhere there is no natural obligation to maintain, a differ- 
 ent view wall probably be taken. Thus expenditure by a person in 
 maintaining and clothing his sisters while they lived in his family 
 was imputed towards their claim against him for the interest on 
 their provisions (?). And where the grantee of a bond for £600 
 claimed on the death of the granter the arrears of interest from its 
 date, his claim was rejected on the ground that it had been more 
 than paid T)y an annuity of £120, which the granter had allowed 
 him (?rt). 
 
 § 377. Where one has become bound to make a certain pro- 
 
 (g) Howden v. Howden, 1841, 3 D., 388. (A) Wiurahame v. EUes, 1668, 
 
 M., 11,433— Maxwell v. Brown, 1G69, M., 11,435. (i) Gait v. Boyd, 1830, 8 
 
 S., 332. See also Cunninghamc's Exrs. v. Hume, 1731, M., 11,438. {k) Scott 
 
 V. Scott, 1846, 8 D., 791. The sums were entered in the father's books. 
 
 [l) Gordon v. Maitland, 1757, M., 11,453, 11,101. (ot) Hunter v. Duffs, 
 
 1831, 9 S., 703 (affd. on another point, 6 W. S., 206). Compare with this case Mon- 
 crieff u. Bnrnott, 1775. M., 11,455.
 
 § ;-57S. rKESUMlTlOX against IKjXATION. 'J7( 
 
 vision to his cliild or gTandchiM, any ic;^ii(ifs lie may leave to him 
 will 1)0 helil as additional and not suhstitutional, unless an opposite 
 intention apiiuais IVnin the circnmstances ; because it is likely that 
 such an act proceeded iVoni a natural desire to add to the child's 
 succession (n). This has been held wliere the father's funds would 
 not cover all liis legacies and the ])rovisions (o). On the samo 
 principle a legacy hy a father was held to be additional to one left 
 to the ehild by Ids grandfather and lying in the fatlier's han<ls (p). 
 The same rule seems also to apply to provisions by an unrdc in 
 favour of his neidiew and heir-at-law, to Avhom he had previously 
 granted a gratuitous bond (r). It also liolds where the antecedent 
 obligation by the father was an onerous obligation intei^ vivos, and 
 not by way of provision (.s). But provisions b}^ a liusband in favour 
 of a wife \y\\\ generally l)e held to be in satisfaction of his obliga- 
 tions by marriage-contract, even where the provisions are dissimilar 
 in character (/). Whatever provision a father settles on his daugh- 
 ter on her marriage is presumed to be in extinction of all her rights 
 under her father's marriage-contract, or under preAdous bonds of 
 l)rovision (m). And where a father was bound by his marriage- 
 contract to leave 100 merks to the children of the marriage, a bond 
 of provision for that sum to his only child was held to have met the 
 obligation (.r). 
 
 § 378. The presumption against donation by a debtor ma}' be 
 overcome l)y the narrative of the deed in issue. This was held 
 where the deed bore to be for services rendered to the grantor and 
 
 (n) Wedderburn v. Dundas, 1827, 5 S., 790— Ord v. Innes, 1685, M., 11,492— Clark 
 V. Hay's Tr., 1823, 2 S., 313. See also Hunter v. Nicolson, 1836, 15 S., 159— Stair, 4, 
 45, 17 (15)— and see stij)ra, ? 370. (o) Clark r. Hay's Tr., 1823, 2 S., 277 
 
 (new ed.) ; see supra, § 221. ( p) Wiurahame v. Elles, 1668, M., 11,489. 
 
 See also Ord v. Innes, supra— BdUom v. Balfour's Tr., 1842, 4 D., 1044. 
 
 (r) See Dickson v. Dickson, 1671, M., 11,490— Cruikshank r. Cruikshank, 1065, IM., 
 11.489— Robertson v. Eobertson, 1728, M., 11,471. («) Hunter v. M'Alister, 
 
 1836. 15 S., 159. (/) Kyle v. Logan, 1594, M., 11,462— Common Seal v. Trail, 
 
 1611, M.. ib.— Crawford v. Crawford, 1614, M., 11,463— Kinnaird v. Zeaman. 1682, M., 
 11,483, 11,469— Selkirk v. Inglis, 1686, M., 11,465— Mercer v. Dalgardno, 1694. M., 
 12,563— Houston I'. Hamilton. 1708. M., 11,465— Hamilton v. L. Ormiston, 1712, M., 
 11 4C,8— Muirhcad r. Darniston, 1615, M.. 6152— lilair v. Hamilton. 1714, M., 6110; 
 compared with Fenton v. Skinner, 1073, M., 11,491. («) Ersk., 3, 3, 93— Cases 
 
 in M., 11,474-11,481. (x) Davidson v. Randal, 1706, M., 6966, 11,465— In 
 
 Gallie v. Mackenzie, 1782, M., 11,374, and Fleming v. Gibson, 1661, M., 11,463, a bond 
 of provision was held to be extinguished by a legacy. In Burnet v. Maitland. 1709, M.. 
 11,467, a bond of provision for 4000 merks to a daughter was held to comprehend a 
 previous one for 3000. Sec a similar decision, Matliieson r. Mathieson. 1766. M.. 
 11,453.
 
 •278 PRESUMFnON AGAINST DONATION. § 378- 
 
 liis predecessors (?/), for the better provision of the chikl in whose 
 favour it was grauted (z), and for love and favour (a). So the se- 
 cond deed may be regarded as an additional provision in conse- 
 quence of its being conditional, while the previous obligation is not 
 so (h).-" 
 
 § 379. It is not sufficient to render outlays debts that they have 
 been entered in the books of the party making them, or even that 
 vouchers for them have been preserved (c); nor, on the other hand, 
 will the want of either or both of these circumstances be sufficient 
 to prove that the outlays were meant as donations {d ) ; because 
 attention to these matters usually arises as much from business 
 habits, as from any particular pur^joso in reference to the outlays. 
 But such circumstances are relevant, and may sometimes turn the 
 scale in the question of intention (e). 
 
 CHAPTER \U.—CHIROGRAPUUM APUD DEBITOREM REPERTUM 
 PRES UMl T UR SOL UTUM. 
 
 § 380. When a deed of obligation is found in the hands of any 
 one of the obligants, it is presumed to have been implemented or 
 extinguished (a). This rule has peculiar force in regard to bonds, 
 bills, and the like, which are frequently discharged by re-delivery 
 
 (y) Abernethy v. Forbes, 167G, M., 11,492— also Wemyss v. Murray, 1706, M., 
 11,4'J3. (z) Ordi'. Inneses, 1085, M., 11,492. (a) Fenton v. Skinner, 
 
 1673. M., 11,491— Dickson v. Dickson, 1671, M., 11,490, compared with Kinnaird v. 
 Zeaman, 1632, M., 11,463, 11,489, and Pringle v. Pringle, 1793, M., 11,472. 
 
 (i) Hunter v. M'Alister, mpra. (c) See Scott v. Scott, 1846, 8 D., 791— 
 
 Campbell v. M'Alister, 1827, 5 S., 219— Wilson v. Paterson, 1826, 4 S., 817. 
 
 (rf) See Eraser v. M'Gown, 1839, 2 D., 144— Black v. Booth, 1835, 14 S., 113. 
 
 (e) See Buchanan v. MoUison, 1822, 1 S., 324 (new ed.); affd. 2 Sh. Ap. Ca., 445— 
 Farquharson's Tr. v. Stewart, 1841, 3 D., 658. (a) Stair, 1, 7, 14— ib., 4, 32, 3 
 
 — ib., 4, 45, 24— Ersk., 3, 4, 5— More, 126— Tait, 467. 
 
 4 A party had a property burdened with a debt to his sister. He made an absolute 
 conveyance to her of part of the property, and afterwards pleaded that the conveyance 
 was granted on the understanding that it was to operate a discharge of part of the debt, 
 and ho pleaded debitor non jjresumUur donare. But it was held that the presumption 
 could not be pleaded against the words of the deed, which expressed an unqualified con- 
 veyance ; Ritchie v. Ritchie, 1858, 20 D., 1093.
 
 § .'^Kl. ClIIIWdRAVllVM Mil) l)i:niT(HiKM llKl'EUTiM. 2 < 'J 
 
 \\itli(jiit tlic iiitfi-pdsit ion dl' writing (A). It luis iil.s<j liooii ajtijlied 
 to ol)ligations which affect heritage ; as a lieritable l)on(l completed 
 ])y info ftrncnt and followed by assigDation and relative sasine (c) ; 
 and in the case of a back-bond of trust found uncancelled in the 
 hands of the trustee {d). But this presumption does not hold as to 
 such obligations regarding heritage as are not likely to be extin- 
 guished without deeds of_ retrocession ; e.j/., in the case of a decree 
 of apprising found in the hands of the debtor, \vhere the Court re- 
 fused to " take away heritable rights by presumptions and conjec- 
 tures ((')." This presumption was held to apply where the cautioner 
 in a bond had possession of it (/). And where an assignation 
 which a party had granted in security of a debt due by his father, 
 was found in the cedent's hands, the Court, in a competition be- 
 tween the cedent's creditors and the heir of the assignee, sustained 
 the presumption in question against an oflfer to prove prout de 
 jure that the cedent received the deed in order to use it as agent 
 for the assignee (</). The presumption does not apply to bilateral 
 deeds {h)} 
 
 § 381. The presumption is excluded by the circumstance of the 
 creditor holding a bond of corroboration or other deed which re- 
 cognises the subsistence of the debt (/). 
 
 The rules as to the proof by which this presumption may be re- 
 dargued are given afterwards in treating of the presumptions re- 
 garding the delivery of deeds. 
 
 (Jb) Monkton v. Carmichael, 1623, M., 11,404— Gordon v. Johnstone, 1703, M., 
 11,408— Campbell v. Cockburn, 1728, M., 11,534— -Jackson v. Williamson, 1825, 4 S., 
 292. (c) Rollo V. Simpson, 1710, M., 11,411— Ersk., sujrra. {d) Charteris 
 
 V. Charteris, 1712, M., 11,413. (e) Gordon v. Learmonth, 1684, M., 11,406, 
 
 16,181 ; 2 B. Sup., 57, S. C. (/) Monkton v. Carmichael, supra— GoxAon v. 
 
 Johnstone, supra — See Stair 1, 7, 14. {g) Fairlcy v. Dick, 16G0, M., 12,278 — 
 
 Stair, ib. {h) Stewart v. Riddock, 1677, M., 11,40(3. See the chapters on deli- 
 
 very of deeds, infra. (/) M'Guwan v. Montgomery, 1703, M., 11,407 — Brown v. 
 
 Henderson, 1703, M., 11,408— See also Gordon v. Worlie, 1633, M., 4400. 
 
 1 A bill for value in furnishings, discounted by the drawer and retired by the accep- 
 tor, is in the hands of the acceptor proof that, to the extent of tlie sum in the bill, he 
 has paid an account for furnishings due by him to the drawer at the date of the bill ; 
 Gumming v. Ilcndric, 1861, 23 D., 1305. 
 
 "Where a party, on the death of his creditor, averred that tlie debts had been gratui- 
 tmisly discharged, and in proof exhibited the receipts which lie himself had granted, 
 there was a conllict of two presumptions, the one in favour of discharge from ]iossessiou 
 of the documents, the other adverse to the alleged donation. The Court, in an action 
 by the executors of the creditor, adjusted issues, of which tiie executors stood pursuers ; 
 Knox t'. Crawford, supra. § 367, note '.
 
 280 cniKOGRAPlIUM NON EXTANS. § 382- 
 
 CHAPTEK WU.— CniROGRAniUM NON EXTANS PRESUMITUR 
 
 SOL UTUM. 
 
 § 382. When the creditor in a written obligation cannot pro- 
 duce his document of debt, hiw presumes that it has been restored 
 to the debtor and cancelled on the debt being discharged, or that 
 the creditor cancelled it in order to extinguish the obligation {a). 
 This presumption strikes at the existence of the deed as a ground 
 of obligation ; but does not impair the subsistence of the debt on 
 other and independent grounds. Accordingly, where a party had 
 granted bond for £84 sterling, and diligence had followed thereon, 
 and he had afterwards granted a new bond for a fifth part of that 
 sum, on a back-bond from the creditor providing that if the latter 
 obligation were punctually implemented the former would be dis- 
 charged, but that if the sum contained in it were not punctually 
 paid at the stipulated terms, diligence should proceed on the ori- 
 ginal obligation, in which case the second bond would be given up; 
 in an action for payment of the original bond, the Court held that 
 the non-production by the creditor of the second deed did not raise 
 the presumption that the debt therein had been discharged ; and 
 consequently, as the condition in the back-bond had not been puri- 
 fied, they sustained the claim for the original debt (h). It will be 
 observed, however, that this was not a proper case of novation, in 
 which the original obligation is extinguished on the second deed 
 being substituted for it. In a case of novation the non-production 
 of the second deed would raise the presumption of payment or dis- 
 charge of the debt. 
 
 § 383. This presumption can seldom be overcome without an 
 action of proving the tenor of the missing document ; in which the 
 ccmis amissionis must be averred and proved. The rules on this 
 subject are noticed in treating of actions of proving the tenor. 
 
 {a) Swinton v. L. Tofts, 1G79, 2 B. Sup., 246— More, ]26— Tait, 4G8. See also 
 Ryrie v. Eyrie, 1840, 2 D., 1210, as explained in the Lord Ordinary's note. 
 {b) Goldie V. Poldean's Crs., 1737, Elcli. "Presumption," No, 9.
 
 §380. APOCIIA TIULM Ay\oui:M. 281 
 
 ClIAlTEJl I\.— OF THE PUKSTMl'TION ARISING FROM THE AVOCIIA 
 TRIUM ANNORUM. 
 
 § 384. Ill till obligations i)restal)lo by ternily payments, — as 
 rents, feu-duties, salaries, interest oi" money, and the like, — if the 
 creditor has gi'anted three consecutive written discharges for three 
 corresponding terms' payments, all those previously due are pre- 
 sumed to have been settled (a). The reason is that, as a creditor 
 seldom discharges even (Jiie term's debt Avliilc the debts of previous 
 terms are outstanding, the existence of three consecutive discharges 
 makes it highly improbable that the debts of previous terms were 
 allowed to subsist. As, therefore, the presumption arises from the 
 reiteration of independent receipts, it will not be raised by the ex- 
 istence of fewer than three discharges, although embracing three 
 terms' dues (6). Nor will receipts for payments to account suffice; 
 but if they were granted with reference to a particular term's pay- 
 ment, and amount to the full sum then due, it seems that they may 
 be read as one receipt therefor (c) ; and where receipts for " the 
 balance" of rent for five consecutive years respectively were pro- 
 duced, the presumption was held to apply (c/). 
 
 § 385. It is only consecutive receipts which raise this presump- 
 tion ; and therefore it does not applj^ where an unsettled term in- 
 tervenes between the first and third discharge (e). The receipts 
 require only to l)e for three consecutive terms, of half j-ears or 
 quarters, and not for three full years (/). The presumption does 
 not arise from the graiitcr receiving payment for three consecutive 
 terms without granting written discharges ; because one of the cir- 
 cumstances necessary to infer i)ayment of the arrears is that the 
 written acquittances do not reserve a claim to tliein (g). 
 
 § 386. As this rule implies that the creditor wittingly granted 
 the discharges, it has been held that two discharges granted by a 
 father, and a third by his son and representative on his decease, do 
 
 (a) Stair, 1, 18, 2— ib., 4, 40, 35— Ersk., 3, 4, 10— Bell's Pr., § 567— More. 123— 
 Tait, 4G9. {b) Stair, 1, 18. 2— L. Rosyth i-. Wood, 1G31. M., 11,395. 
 
 (c) Blackadeler t-. Cockbuvu, 1G87, M., 3552. (</) Hunter i'. L. Kinnainl's 
 
 Tr., 182'J, 7 S., 548. (c) Stair, supra — Ersk., supra — and see Kennedy r. Dal- 
 
 ryniple, 1G22, M., 11,393. (/) Stair, «yra— Ersk., «H;>ra— Tait, 469. The 
 
 text writers do not state that the presumption is raised by successive receipts for less 
 tlian half-yearly payments. {g) Stair, 1, 18, 2, and Jlore's Notes, 123 — Bell's 
 
 Pr., ? 567— Tait, 470— Moristoun v. Nisbet's Tenants, 1631, M.. 11.394. But see contra. 
 Lady Errol v. Cruickshanks, 1605, M., 11,302.
 
 •282 ArOOHA TRIUM ANNORUM. § 386- 
 
 iiot raise the presmiii>ti(ai, unless tlie son's knowledge of tlie pre- 
 vious receipts were prowd (A). But the presumption applies al- 
 though two of the discharges were to the original debtor, and the 
 third to his representative (/). 
 
 § 387. With regard to discharges by the creditt>r's factor, Lord 
 Stair observes that three subsequent discharges are only sufficient 
 against the chamberlain during his commission, and against his 
 constituent who gave him power to discharge during that commis- 
 sion (A-). In two cases the Court refused to infer payment of by- 
 gones from the existence of three discharges by the creditor's 
 factor (I). But the opposite was found as to receipts for feu-duties 
 by a factor and chamberlain who had been in use to uphft the cre- 
 ditor's maills and duties {in), and as to receipts for rent by the fac- 
 tor who had framed the tenant's lease {n). The correct principle 
 seems to be that, while receipts by one who has a general manage- 
 ment of the property will suffice, it is otherwise as to receipts 
 granted by one who merely acted as receiver of certain terms' rents, 
 without holding such an office. Discharges by successive factors 
 will not raise the presumption ; yet if combined with other circum- 
 stances, they may go far to infer payment (o). 
 
 Where tenants had by their landlord's order delivered their 
 grain rents to certain merchants, the receipts granted by the latter 
 for three successive years were held not to infer payment of the 
 previous rents {p). 
 
 § 388. The presumption from the apocha trium annorum, ope- 
 rates in favour of the creditor, as well as of the debtor. Accord- 
 ingly, where the debtor in an annual-rent claimed repetition of one 
 year's duty w^hich he alleged he had paid twice, the Court sustained 
 the creditor's defence that three subsequent payments had been 
 made without reservation (r). 
 
 § 389. This presumption is excluded where the arrears have 
 been constituted by bond, bill, or decree ; because the subsistence 
 
 {h) Gray v. Eeid, 1699, M., 11,399 ; 4 B. Sup., 466, S. C. (0 Williamson 
 
 V L BaUnllo, 1631, M., 11,393. But see Lady Errol v. Cruickshanks, supra. 
 
 Ik) Stliir, 1, 18, 2. [l) Preston v. Scott, 1667. M., 11,397— E. Marshall v. 
 
 Eraser 1682 M., 3551, 11,399. The point did not arise purely in either of these cases. 
 See also Bhlcka'dder v. Cockhurn, 1687, M., 3552, 3 B. Sup., 648-Grant i;. M'Lean, 
 1757 M 11,402. (m) Wedderburn v. Nisbet, 1612, M., 7181. 
 
 ' (n) Hunter v. Kinnaird's Tr., 1829, 7 S., 548. The point was not expressly raised 
 j^^.j-e (o) See Stair. 1. 18, 2, 1st ed., quoted in More's ed., p. 156, note 2. 
 
 {p) Master of Corstorphine v. his Tenants, 1686, M., 11,396. (r) Reid v. 
 
 Dgilvie, 1729, M., 11,400— More's Notes, 124.
 
 § 302. i'KESUMPTlON OF I'AYMENT OF llONUUAUIKS. 283 
 
 of a (lcl)t so liquidated ought to be disproved by writing, or by a 
 more conclusive inference tliun the one referred to («).^ Yet if" tlic 
 circumstance is confirmed by long delay to claim payment, or Ity 
 other relevant facts, the arrears will be held to have been paid, even 
 where they were constituted by writing (/). 
 
 § 390. The presumption is limited to jn-cvious debts of tbe 
 same character as those embraced l)y the discharges ; and therefore 
 receipts for rent will not raise the inference that grassums due once 
 every five years, have been paid (») ; altliough the receipts may be 
 important in connection with other facts inferring payment (a-). 
 
 § 3'Jl. Where the receipts contain a reservation of the claim 
 for arrears, of course it will not be presumed that these have been 
 paid. The presumption may also be overcome by the debtor's WTit 
 or oath, and even l)y contrary circumstances sufficiently strong to 
 infer non-payment (?/). 
 
 CHAPTER X. — OF THE PRESUMPTION THAT HONORARIES HAVE 
 
 BEEN PAID. 
 
 § 392. Lord Bankton considers that advocates may sue for their 
 fees, but that it is discreditable to do so («). The correct view in 
 point of law (wdiatever may be said of its equity or policy) is, that 
 counsels' fees are honoraries, for which action does not lie (b). 
 
 (5) Ersk., 3, 4, 10 — See also Master of Corstorphine v. his Tenants, supra — Pringle v. 
 Murray, 1757, M., 11,403— L. Eosytli v. Wood, 1631, M., 11,395— More, 124— But the 
 presumption is not excluded by a mere note or memorandum which is not a proper 
 document of debt; M. Annandale v. Johnstone, 1728, M., 11,400. (t) Stair, 
 
 1, 18, 2— Ersk., supra— Grant v. M'Lean, 1757, M., 11,402— Douglas v. Bothwell, 1034, 
 M., 11.395— Homes v. Anderson, 1744, M., 11,401. {«) See Lady Errol v. 
 
 Cruickshanks, 1G05, M., 11,392. (x) See Hunter i-. L. Kinnaird's Tr., 1829, 
 
 7 S., 548. (i/) Stair, 1, 18, 2— Ersk., 3, 4, 10— Cases supra, in notes. 
 
 (a) Bankt.. 4, 3, 4. (6) Stair, 1, 12, 5— ib., 1, 13. 2— More, 12G— Bell's 
 
 Die, "Honorarium" — Shand's Prac, 81. But an agent who has received payment from 
 his client of fees as having been paid to counsel is bound to account to the counsel for 
 them ; Bell's Die, ib. — A B, 1837, 15 S., 748, note. Now that the profession of an ad- 
 vocate is followed as a means of livelihood, and not as under the Roman system, whence 
 the rule in the text is derived, there seems to be no good reason why a claim for re- 
 muneration should not be recognised by law. 
 
 1 Patrick v. Watt. 1859, 21 D., 637.
 
 284 PEESUIMPTION OF PAYMENT OF HONORAKIES § 392- 
 
 x\s professional etiipiette requires fees to be paid in advance, the 
 presumption is that this has been done (c). This presumption, 
 however, does not hokl where a sahiry is payable to a counsel under 
 special agreement ; in which case, also, the principle that the re- 
 muneration is an honorary is inapplicable (d). Professor Bell states 
 generally that the presumption is excluded b>' a special promise or 
 contract (e)} 
 
 § 393. At one time phj'sicians' fees also were regarded as 
 ■honoraries, and as not exigible by action except under a special 
 contract (/). But latterly this principle has been relaxed to a 
 great extent ; and the modern rule is that a physician may sue for 
 his fees, but that law presumes that his services have either been 
 rendered gratuitously or been remunerated at the time of attend- 
 ance (g). The presumption is held not to apply to attendance dur- 
 ing the deathbed sickness (h) ; which for this purpose has been 
 sometimes limited to the last sixty days of illness (/). This limit, 
 however, is not quite established (F). 
 
 § 394. The presumption may be overcome by evidence, direct 
 or circumstantial (I) ; and it was held not to apply where the 
 physician's account for medicines was unpaid, and where it was not 
 the custom of the district to pay the fees at the time of attend- 
 
 (c) Bell's Pr., g 568— Tait, 471. {d) M'Kenzie v. Town of Burntisland, 
 
 1728, M., 11,421, 11,102— Lockhart v. D. Queensbery, note to ib., M., 11,102. This is 
 evidently the case of Lockhart r. D. Gordon, 1730, M., 10,7CG ; where an advocate was 
 allowed to sue on a bond of annuity narrating that it had been granted for " services 
 done ; " Karnes' Session Papers, No. 447 — See also Bell's Pr., ? 668. (e) Bell's 
 
 Pr., supra. (/) Stair, 1, 12, 5— ib., 1, 13, 2— Johnstone v. Bell, 1716, M., 
 
 11,418. (ff) Tait, 471 — Bell's Pr., supra. Cases in next two notes. 
 
 (h) Sanders v. Hewat, 1822, 1 S., 310 (new ed.)— Kussell v. Dunbar, 1717, M., 
 11,419 — Malcolm v. Balfour, 1744, Elch., " Presumption," 15 — Park v. Langland's Reps., 
 1755, M., 11,421 ; and see Hamilton v. Gibson, 1781, M., 11,422— Bell's Pr., sujjra. 
 
 (i) Russell V. Dunbar, supra — Tait, 471. (k) See per L. President in 
 
 Sanders v. Hewat, supra, and Park v. Langlands, sw^jra. (I) In Hamilton v. 
 
 Gibson, 1781, M., 11,423, where an action was brought for fees for attendance, not during 
 the patient's last illness, the Court, while recognising the general principle, found " that 
 particular circumstances may make an exception," and accordingly they repelled the 
 defence. The nature of the circumstances is not reported. 
 
 1 In England, a barrister has no action for his fees ; he undertakes a duty, but does 
 not enter into a contract; Swinfen v. Chelmsford, 1860, 5 Hurl, and Norm., 890. In a 
 recent case where an advocate sued an agent for fees alleged to have been received 
 by the agent from his clients, and not paid to the advocate, the Court delayed decision 
 of the question, whether an advocate could sue for fees, and allowed a proof before 
 answer; CuUen v. Buchanan, 1862, 24 D., 1132.
 
 § 395. rUESUMl'TlOX that I'AY.MKNT WAS MADE, &C. 285 
 
 aiice (///). The jinsuiiiptioii ou;;lit not tu lioM in Scotland in re- 
 gard to the fees of the ordinary medical attendant of a family, the 
 nsual practice being to pay such Ijills once a year («). 
 
 CHAPTEJi XI. — OF THE PllERUMPTION THAT PAYMENT WAS MADE 
 BY THE PllOPER DEBTOR. 
 
 § 395. Where a debt has been paid, the natural inference, and 
 consequently the legal presumption, is that it has been paid by the 
 debtor or with his funds (a). 
 
 Thus a bill or promissory note with a general receipt is pre- 
 sumed to have been retired with the acceptor's or granter's money (b). 
 So a bill for the acceptor's accommodation, with a general receipt 
 by a bank (the last indorsee), was presumed to have been paid by 
 the acceptor or on his behalf; the question arising between the 
 drawer and a prior indorsee in whose possession the bill was found 
 with the receipt scored (c). And where a bill for the accommoda- 
 tion of a party not appearing on it, having been retired and marked 
 paid, was found in the hands of one of the acceptors, in a question 
 between him and a co-acceptor's heirs it was presumed to have been 
 retired with the funds of the true debtor (d). And a bill by two 
 acceptors, being found blank indorsed in the hands of one of them, 
 was presumed to have l)ecn paid by them c(|ually (e). But where 
 a bill accepted by a father and son was found in the father's hands, 
 and in a competition of the son's creditors the father claimed re- 
 payment of the whole, on the ground that the bill had been for the 
 son's accommodation, the Court held that it must be presumed that 
 the payment had been made with the funds of the son (/). Again, 
 where a party alleged that he had paid another person's debt, and 
 produced receipts in that person's name, which he had retained un- 
 delivered, he was obliged to prove by the debtor's writ or oath that 
 
 (to) Flint V. Alexander, 1795, M., 11,422 — Melville i;. Alexander, 1795, note to ibid. 
 
 (n) See Bell's Pr., ? 568. (a) Ersk., 3, 4, 6— Bell's Pr., ? 559— More, 126— 
 
 Tait, 472. {b) Ewing v. E. Stvatbinoic, 1832, 10 S., 803— Webster v. Thomas, 
 
 loth January 1819, F. C— Ferguson v. Young. 1793, M., 1488. (c) Brovs-n v. 
 
 Kerr, 1809, Hume D.. G2. (rf) Jackson v. Williamson, 1825, 4 S., 292. 
 
 (e) Campbell r. Cockburn, 1728, M.. 11,534. (/) Baillio v. Wilson, 1840, 
 
 2 D., 495. In tliis case tho fatlior and sou had evidently been in collusion.
 
 28(3 PRESUMPTION THAT PAYMENT WAS MADE, &C. § 395- 
 
 tlie pajTiiout had not lieen made from the liiiids of tlic hitter {(j). 
 A heritahlc bond lying cancelled in tlic hands of the debtor's heir 
 was presumed to have been paid by him, not by the executor {h). 
 Thus also a tenant was not allowed credit as against his landlord 
 for pa^'ments, the receipts for which, produced by him, were in the 
 landlord's name (z). And a factor's possession of bonds and bills 
 granted by his constituent does not raise the inference that the 
 factor paid them {¥). Again, where A subscribed the books of a 
 joint stock company for certain shares of stock for himself and 
 other persons respectively, and paid the advances upon their shares, 
 whereupon a certificate was made out bearing these parties to be 
 creditors of the company for the sums so paid up, it was presumed 
 that the several parties had advanced the sums applicable to their 
 respective shares (J). The presumption applies although the pay- 
 ment was made by the hands of a third party who holds a receipt 
 to that effect (?n). And where certain receipts for annual-rents in 
 the hands of one or two creditors bore that the sums therein men- 
 tioned had been paid by him for himself and in name and for behoof 
 of the other doT)tor, the Court held that the latter had contributed 
 his proportion of these payments. There were other receipts in the 
 hands of the same party bearing simply that the sums had been 
 paid by him; and it was not contested that he had made these pay- 
 ments from his o^\^l funds (w). 
 
 § 396. Tliis presumption may be overcome by the terms of the 
 receipt (o). Indeed one of the grounds of the presumption is, that 
 if a party pays mth his own funds the debt due by another, he 
 ought to take a receipt setting forth that fact. The presumption 
 may also be overcome by the writ or oath of the proper debtor {])) ; 
 
 {g) Halyburton v. Cook, 1711, M., 11,528. {h) Wilson v. Dawling, 1669, 
 
 M., 11,525. {i) Nisbet t>. Johnston, 1711, M., 11,528. See Veitch «. Paterson, 
 
 1G64, M., 11,383. {k) Garnock v. Wilson, 1714, M., 11,530. 
 
 [l) Corse's Crs. v. Peddie, 1708, M., 11,526. (m) Trotter v. Eobertson, 1672, 
 
 M., 11,526— Donaldson v. Walker, 1711, M., 11,528— Corse's Crs. v. Peddic, swjjra. See 
 also Nisbet v. Johnston, supra. [n) Gordon v. M'Gliie, 1711, M., 11,529. 
 
 (o) See Soutar v. Soutar, 1827, 5 S., 876, where an accommodation bill having been 
 paid in two instalments by one of the parties who was not the proper debtor in it, the 
 receipt for the first instalment being in general terms, while on the balance being paid 
 the bill and protest were given up to the party and a receipt was written on the bill in 
 these terms, "Received payment from G. S. as indorsee;" the Court held that both 
 payments had been made by him. A written declaration, however, by the creditor ex 
 intervallo will not be regarded ; indeed it is inadmissible as evidence to any eifect. Sec 
 Nisbet V. Johnston, mpra. {p) Trotter v. Robertson, 1672, M., 11,526 — Corse's 
 
 Crs. V. Peddie, 1708, M., il).— Halyburton v. Cook, 1711, M., 11,528— Ferguson v. Young. 
 1793, M.. 1488— Ewing v. E. Stratlimore, 1832, 10 S.. 863; aflTd., G W. S., 56.
 
 § 307. PRESUMPTION AS 'I'O CI.Anfft liY TUTORS. 287 
 
 \\h\c\i was foniicil.v regarded as tlic only adinissiljle proof on tlie 
 point (/•)• i^^it the later cases allow it to be redargued by a proof 
 237'out de jure, or by contrary inferences («). But in a recent case 
 it was held that a bill of exchange, bearing a general receipt of 
 payment by the last indorsee, and having the names of the accep- 
 tors cancelled, cannot found an action by a prior indorsee intcj whose 
 hands it comes, and who averred that the bill was retired by him, 
 unless he prove his averments as to tlie payment, cancellation, and 
 receipt, by the acceptors' writ or oath (/)• 
 
 CHAPTER XII. — TUTOR rRE^UMTTUR TNT US HABERE ANTE 
 R ED DVT A S RA Tl ONES. 
 
 § 397. Law presumes that a tutor, who has not accounted for 
 his intromissions, has in his hands funds belonging to the pupil 
 sufficient to meet any claim which he may have against the pupil's 
 estate («). This is a corollary to the rule that tutors are not bomid 
 to account till their office expires; and it has a wliolcsome tendency 
 to produce an early accounting, as well as to prevent tutors from 
 speculating on their own accomit with the funds under their official 
 care {h). This presumption is twofold— Is^ that the tutor holds 
 funds sufficient to meet any claim he may have against the pupil (c); 
 and, 2rf, that all purchases by him of rights aflecting the pupil's 
 estate were made with the pupil's money {d). It applies in an ac- 
 tion by a tutor against his ward after the decennial prescription has 
 extinguished his liability to account for his intromissions ; for quae 
 sunt temporal ia ad agendum are frequently ^jev-pe^i^a adexcipiendum; 
 and the pupil does not claim a balance from the tutor, but only 
 
 (r) Trotter v. Robertson— Corse's Crs. v. Peddie— Halyburton v. Cook, supra. And 
 SQeper curiam in Ferguson v. Young, supra. («) Halyburton t-. Cook, 1713, 
 
 M., 11,387— Macneil v. Livingstone, 1758, M., 11,534— MNab v. Telfer, 1821, 2 Mur., 
 481-M'Lauchlan v. Thomson, 1831, 6 F. C, 490; 9 S., 753, S. C— M'Kenzie v. Gor- 
 don, 1839, M'L. & Rob., 117, affirming IG S., 311— Wood v. Northern Reversion Co., 
 1848, 11 D., 254. See also Irving v. Churteris, 1714, M., 11,531. (<) Martin r. 
 
 Smit'h, 18.-.4, 1 7 D.. 143. (a) Stair, 1, 6, 28-Ersk., 1, 7, 32-2 Fraser, IGG, 
 
 7— Tait, 473. (i) See Ersk., 1, 7, 19. ' (c) Tait, 473— Authorities in 
 
 note (a). {d) Bankt., 1, 7, 40— Ersk., s(//>;-a— Tait, w;.ra— Fraser, supra— 
 
 Tutor of Stonnout v. his pupil, 1GG2, M., 11,624— Melville v. Montgomery. 1G7G. M.. 
 16,292— Cases in two next notes.
 
 288 PRESUMPTION AS TO CLAIMS BY TUTORS. § 387- 
 
 pleads in defence that the claim of the latter is presumed to have 
 been paid before the years of prescription had elapsed; a pre- 
 sumption which must be available to him until the tutor has ac- 
 counted {e). 
 
 § 398. This presumption affects not only the tutor, but his 
 onerous assignees holding bonds or securities which affect the pu- 
 pil's estate (/). But it does not apply to debts due to the tutor by 
 the pupil's ancestor ; because the only rational foundation for it re- 
 stricts it to expense incurred by the tutor on the minor's account ; 
 and it is repugnant to justice that a creditor's right to demand a 
 just debt should be postponed, in consequence of his having under- 
 taken a friendly and gratuitous office for his debtor; officium nemhii 
 debet esse damnosum (g). In the same way the presumption cannot 
 affect rights which a tutor acquired over his ward's estate before his 
 office commenced ; for he had not then funds belonging to the pupil 
 with which they could have been purchased. 
 
 § 399. The presumption applies to one who takes up office as a 
 pro-tutor (Ji). 
 
 § 400. This presumption will be overcome by the tutor's ac- 
 counts showing that he had not the requisite funds in his hands to 
 make the payment or purchase the debt objected to (?'). It will 
 also be redargued by proof that the pupil's father died embarrassed 
 and insolvent (the pupil not ha^^ng acquired funds from another 
 quarter), and that the tutor while in office had advanced money to 
 prevent the pupil's estate, which was heaAily burdened, from being 
 dismembered by diligence (k). Stair (?) and Bankton (m) cite a 
 case of the Earl of "Wintoun v. Eamsay (n), to show that the assig- 
 nee of a tutor, who had acquired a bond over his pupil's estate dur- 
 ino- the tutory, may get decree against the latter on finding caution 
 to repeat, in case the tutor's accounts should show that he had funds 
 in hand wherewith to have paid the debt. But in that case it ap- 
 pears that the defender offered to pay the sum to the pursuer on 
 
 (e) Ersk.. 1, 7, 32— Baukt., 1, 7, 40— Baillie v. BaiUie, 1714, M., 10.001— Douglas v. 
 Scott, 1737, Elch. "Tutor," No. 8; M., 10,004, S. C. (/) Stair, 3, 1, 22— 
 
 ib.. 1, 6, 28— M'Dougall v. Applecross, 1686, M., 16,308— Ramsay v. Wintoun, 1662, M., 
 9977_Cleland v. Baillie, 1679, M., 9983— Spence v. Scott, 1676, M., 9981— Brebner v. 
 Cook, 1714, M., 9998. See Nisbet v. Smith, 1685, 3 B. Sup., 594. ( ff) Ersk., 
 
 1, 7, 32— Bankt., 1, 7, 40— Newmills v. Smiths, 1687, M., 9989— Muir v. Crawford, 1696, 
 4 B. Sup., 298. {h) Buchanan v. Buchanan, 1765, M., 11,676 — Thoirs v. 
 
 Tolquhoun, 1686, M., 16,308— Nisbet v. Smith, supra. (i) Stair, 1, 6, 28 — 
 
 Ersk., 1, 7, 32. (k) Buchanan v. Buchanan, supra. (1) Stair, 1, 6, 28. 
 
 (m) Bankt., 1, 7. 40. O)^ E. Wintoun »\ Ramsay, 1662, M.. 11,523, 9977.
 
 § 400. PRESUMPTION AS TO CLAIMS BY TUTORS. 289 
 
 his finding the caution referred to, aii<l that tlie tutor was only one 
 of several, and had not personally introniitted with his ward's 
 funds (o), 
 
 (o) In the argument of Nisbet v. Smith, 1686, 3 B. Sup., 595, with regard to 
 assignees of tutors, it is mentioned tliat the decisions E. W^intoun v. Ramsay and Grier- 
 eon V. Carruthers (unreported), only " tie them to find caution." But little or no 
 reliance can be placed on the latter case, especially from its being coupled with the case 
 of E. Wintouu v. Ramsay, supra ; which, as already shown, was not a decision on the 
 point. 
 
 VOL. I.
 
 290 GENERAL NATUEE OF PEESCRIPTIONS. § 401- 
 
 JITLE IX. 
 
 OF PRESCEIPTIONS. 
 
 CHAPTER I. — OF THE GENERAL NATURE OF PRESCRIPTIONS. 
 
 § 401. The lapse of time lias important eifects in establishing 
 or extinguishing, fortifying or impairing, rights and obligations. 
 Besides the inferences which spring from undisturbed possession 
 on the one hand, and mora and acquiescence on the other, all codes 
 of law recognise absolute rules on this head ; founded partly on pre- 
 sumptions, and partly on grounds of pubhc policy. In this country 
 these rides pass under the general term "prescriptions;" although 
 some of them are more correctly called " limitations." Prescriptions, 
 then, may be defined as rules of law by which rights and obligations 
 are established or extinguished, or the modes of proving them are 
 limited, in consequence of the lapse of time. 
 
 § 402. From this definition it is manifest that prescriptions are 
 of several essentially different kinds. They may be classified into — 
 
 1. Those by which rights are fortified and established ; e.g., the 
 long positive prescription, and the Adcennial prescription of retours. 
 Such prescriptions are founded on the presumption which arises 
 from undisturbed possession; and they are designed not only to 
 protect true proprietors from the forgery of competing titles, but 
 also to give that confidence in the stability of rights of property, 
 which is essential to its improvement, and to the prosecution of 
 useful enterprises engaged in upon the faith of it (a). 
 
 2. Prescriptions which, proceeding on the presumption that the 
 creditor has relinquished his right, absolutely extinguish it, if it 
 has not been prosecuted within the prescriptive period; e.g., the 
 long negative prescription. 
 
 (^0 Dig., 41, ■?,, 1— Stair, 2, 12, 9— Ersk.. 8. 7. 1 
 
 A
 
 § 404. GENERAL NATURE OF PRESCRIPTIONS. 291 
 
 3. Prescriptions which proceed ou the presumption, or rather 
 the fiction, that the ol)ligant and obligee at entering into the con- 
 tract intended that it sliould only last for a limited period ; and 
 which are therefore implied conditions defining its duration ; e.(j., the 
 septennial limitation of cautionary obligations. 
 
 4. Prescriptions which are designed to protect IVom the perpe- 
 tuity of certain diligences and actions ; e.g., the triennial limitations 
 of arrestments and actions for wrongous imprisonment and spuilzies, 
 and the vicennial prescription of criminal ijrosecutions ; — and 
 
 5. Those wdiich d(j not affect the right or obligation, but which, 
 in order to obviate the evils arising from loss of evidence, limit the 
 proof either to the oath or to the writ or oath of the party in whose 
 favour they run ; e.g., the vicennial prescription of holograph writs, 
 the sexennial prescription of bills, and the triennial prescription of 
 merchant's accounts ; all of which spring from corresponding pre- 
 sumptions. 
 
 § 403. It is only the last class of prescriptions which directly 
 involve questions on the law^ of evidence ; and therefore it is only 
 these wdiich will here be examined in detail. Before entering upon 
 them, the other prescriptions may be emunerated. 
 
 § 404. 1. The long positive prescription was introduced by 
 1617, c. 12, for the protection of land rights. Under it possession 
 for forty years on charter and sasine, or (where there is no charter) 
 on sasines one or more continued and standing together, renders 
 the right secure against all future challenge (h). 
 
 2. Undisturbed possession of a moveable subject for forty years, 
 either with or without a waitten title, creates an indefeasible right 
 of property in it (c). Whence this rule arises has been a moot point 
 among Scotch lawyers. It does not come wdthin the enactments 
 regarding the long positive prescription ; for these are limited to 
 heritable subjects possessed on w'ritten titles. It has been main- 
 tained {d) under the long negative prescription noticed in next 
 paragTaph. But as the statutes by which that prescription is intro- 
 duced speak only of obligations " made" in favour of the party 
 against whom the prescriptions run, their provisions seem not to 
 apply to the claim by the original proprietor of a moveable subject 
 to vindicate his right of property. The correct principle seems to 
 be, that justice and public policy requiring that some fixed period 
 
 (b) Soo this treatffl in Erslc. 3. 7. 3. et scq.—^\oro. 276— BolPs Pr.. ? 2002. 
 
 (c) Stair, 2, 12, 2— Ersk., 8. 7. 7— More. 276. {d) See Napier on Prescrip- 
 tions, 38, et seq. — 111., 76, et seq. 
 
 t2
 
 292 GENERAL NATURE OF PRESCRIPTIONS. § 404- 
 
 of possession of moveables be sufficient to create an absolute right 
 of property in tliem, common law lias, on the analogy of the long 
 prescriptions, established a presumption jiwr/s et dejure, that a party 
 who has for forty years possessed a moveable subject is the pro- 
 prietor of it ((?). 
 
 3. The long negative prescription stands upon the statutes 1469, 
 c. 28, 1474, c. 54, and 1617, c. 12 ; which create forfeiture of a right 
 or obligation, heritable or moveable, mutual or unilateral, which the 
 creditor has neglected to exercise or prosecute for forty years (/). 
 It proceeds on the presumption of abandonment, 
 
 4. By 1617, c. 13, retours of services can only be challenged if 
 the summons of reduction is " intented, executed, and pursued" 
 within twenty years of the retour and service (g). The decree of 
 service under the new form of procedure has the benefit of the sta- 
 tute in the same manner as the old retours (7i). 
 
 5. By common law the right to prosecute criminally prescribes 
 after twenty years from the date of the ofi'ence, unless the accused 
 has been fugitated (i). 
 
 6. By 1696, c. 9, actions of count and reckoning competent to 
 pupils and minors against their tutors and curators prescribe if not 
 insisted in within ten years after majority (k). 
 
 7. By 1695, c. 5, the duration of cautionary obligations is, under 
 certain conditions, limited to seven years (l). 
 
 8. By 1669, c. 10, citations for interrupting prescriptions pre- 
 scribe in seven years. 
 
 9. By 1701, c. 6, the right to raise action for wrongous imprison- 
 ment prescril)es, if it is not exercised within three years after the last 
 day of the imprisonment (m). This applies only to actions for the sta- 
 tutory penalties, and not to actions at common law for damages (n). 
 It is also limited to wrongous imprisonment on criminal charges, and 
 does not include imprisonment for civil debts (o). 
 
 10. Actions for error against the persons of inquest were only com- 
 petent within three years from the date of the retour and service (p). 
 
 (e) See Stair, 2, 12, 13— Bankt., 2, 12, 1— Kames' Elucid., Art. 33, p. 240, 258— 
 More, 276. (f) See Ersk., 3, 7, 8— More, 265—1 Bell's Com., 335— Bell's 
 
 Pr.. 606. iff) See Ersk, 3, 7, 19— More, 271— Bell's Pr., 2024. 
 
 {h) 10 and 11 Vict., c. 47, ? 13— Duff on Recent Stat., p. 53. (?) 2 Hume, 
 
 136— 2 Al., 97— Macgregor (Murder), 1773, Hume, ib.— Ersk., 4, 4, 109. 
 
 (k) See Ersk., 3, 7, 25- More, 272— Bell's Pr., 635— See supra, § 397. 
 
 (l) See Ersk., 3, 7, 22— More, 272—1 Bell's Com. 356. (m) See Ersk., 
 
 4, 4, 110. (n) Bell's Pr., § 2035— Sinclair v. Sinclair, 1742, Elch., " Wrongous 
 
 Imp.," 9. (o) M'Christie v. Fisher, 1831, 9 S., 312. (p) 1494, 
 
 c. 57—1617. c. 13. 
 
 I
 
 § 40G. GENERAL NATURE OF PRESCRIPTIONS. 293 
 
 11. Arrestments preseribe within tlm-e years from laying tliem 
 on, wlicn the debt is liquid; and wli.u it is future or contingent, 
 they prescribe within three years respectively from its becoming 
 due or the contingency being purified (r). 
 
 12. Actions of removing can only be pursued within three years 
 after their respective warnings (s). 
 
 13. "Actions of spuilzies, ejections, and others of that nature" 
 (which include actions of intrusion (0, of " damages for demoHsh- 
 ing a mill" (w), and the like), must be pursued "within three years 
 after the committing thereof" {x). This prescription does not affect 
 an ordinary action for restitution of the loss occasioned ])y the 
 spuilzie, but only the action for violent profits (//). 
 
 § 405. The prescriptions which are more particularly examined 
 here are the vicennial prescription of holograph writs, the sexennial 
 of bills, the quinquennial of verbal bargains and of maills and duties, 
 and the triennial of open accounts. The first of these prescriptions 
 is founded upon the presumption that if a writ alleged to be holo- 
 graph has not been claimed upon for twenty years, it is not genuine. 
 The others proceed upon the double presumption that from the lapse 
 of the statutory period the alleged obligation was not contracted, or 
 that, if it was, it has been implemented or discharged. But " what- 
 ever general presumptions may have weighed with the Legislature in 
 passing the statutes which enact these prescriptions, they introduce 
 no presumptions, but enact certain specific and imperative rules on 
 the subject of probation" (z). 
 
 § 406. The cases, therefore, wliich arise on these limitations 
 involve two questions ; namely, Isf, Does the document or claim 
 come under the statutory rule ? And, 2d, If so, has the pursuer 
 proved his case by evidence of the kind to which he is limited ? 
 Thus, when the vicennial prescription is pleaded in an action upon 
 a holograph bond, it may be necessary under the first head to deter- 
 mine whether the writing is one of those struck at by the statute, 
 whether the full twenty years have run without minority or any 
 other impediment, and whether the defence has been ehded by 
 
 (r) 1 and 2 Vict., c. 114, ? 22. They formerly prescribed in five years; 16G9, c. 9. 
 
 (s) 1579, c. 82. See Ersk., 3, 7, 18. {() L. Craighall v. Kiuninmoiith, 
 
 1610. M., 11.068. (i/) Corbet v. Vans, 1610, M., 11,068. (x) 1579, 
 
 c. 81. Seo Ersk., 3, 7, 16. (y) Ersk., ib.— Baillie v. Young, 1835, 13 S., 472 
 
 —Cases in 3 B. S\Tiop., 1650. (z) L. Fullcrton in Darnloy i^. Kirkwood, 
 
 1845, 7 D., 600. See also per L. Just. -CI. Hope in Alcock v. Easson, 1842, 5 ib., 363, 4 
 — Cullen 0. Smeal, 1863, 15 ib.. 870.
 
 294 GENERAL NATURE OF PRESCRIPTIONS. § 406- 
 
 actioii or diligence. Then, if it sliall be found that the statutory 
 rule applies, the next point is whether the pursuer has proved the 
 genuineness of the bond by the defender's oath ; and this may 
 raise questions as to the interpretation of the oath, the effect of one 
 defender's oath against another, and the like. Similar questions 
 are involved in cases regarding the sexennial, quinquennial, and 
 triennicil prescriptions ; where the first point is, — Does the case 
 come under the statutory rule which limits the pursuer's proof to 
 the defender's WTit or oath ? and the second point is, — If so, has 
 the pursuer, by means of that evidence, proved both the constitu- 
 tion and the subsistence of the debt (a) ? 
 
 § 407. With regard to all the statutes referred to, the defender s 
 admissions on record are held to be equally binding upon him as 
 his writ or oath ; and that not so much from their being equivalent 
 to either of these kinds of proof, as in consequence of the funda- 
 mental rule of pleading, that the statements of fact made by a party 
 on record are conclusive against him (b). 
 
 § 408. Great caution, however, is required in using the record 
 in place of the statutory mode of xjroof. On the one hand, there is 
 no doubt that if the defender distinctly admits that the bond is 
 genuine, or that the debt is resting-owing, it will not avail him to 
 j)lead prescription, but decree will be given against him without a 
 reference to his oath (c). The same course ought also to be followed 
 in an action on a prescribed bill or account, when the defender dis- 
 tinctly admits that the debt is resting-owing, and states a defence 
 independent of any question as to its subsistence (d). But if the 
 defender in such an action, without admitting resting-owing, pleads 
 
 (a) The observations in this paragraph are taken from the cases of Alcock v. Easson, 
 1842, 6 D., 356, per L. Justice-Clerk Hope (which is the leading decision on this sub- 
 ject), and Darnley v. Kirkwood, 1845, 7 D., 595, per Lord Fnllerton. The application 
 of these rules to the different prescriptions is considered in treating of them. 
 
 (6) Noble V. Scott, 1843, 5 D., 727 — Alcock v. Easson, supra — Darnley v. Kirkwood, 
 supra — Wilson v. Strang, 1880, 8 S., 625. (c) Bryson v. Aytoun, 1825, 4 S., 180 
 
 — Ritchie v. Little, 1836, 14 S., 216 — Alcock v. Easson, sw^jra, per L. Justice-Clerk. 
 
 (d) For instance, if the defender admits that the debt was incurred and has not been 
 paid or discharged, but pleads compensation, the admission should be held to prove the 
 constitution and subsistence of the debt, the defender being left to prove his counter- 
 claim ; because, if his oath were taken, he would not be allowed to contradict his state- 
 ment on record, and if he repeated the statement in his oath with the qualification of 
 set-off, the Court would find the debt proved, but would require him to prove the 
 counter-claim, which would be an extrinsic qualification to his oath. This course, 
 however, is not to be followed where the defender on record pleads compensation with- 
 out admitting the debt. Sec the text. 
 
 i
 
 § 408. GENERAL NATUKK (,)F PKKSCHIFTIONS. 295 
 
 Oil record, Isf, prescription, and 2(1, uu alternative delcnce (such 
 as compensation), wliicli can only operate on the supposition that 
 the debt is resting-owing, the pursuer may not maintain that this 
 second plea involves an admission of the debt, and thereby proves 
 it. The dclender's position in such a case is, 1st, that the debt is 
 prescribed, "which means that resting-owing is denied, and can only 
 be proved by his own writ or oath ; and 2d, supposing that he 
 fails in that plea in consequence of the debt being held not pre- 
 scribed, or from his writ or oath being held to prove resting-owing, 
 — then, and not till then, comes in the alternative defence, " esto 
 that resting-owing shall be proved, decree may not be given against 
 me, because the debt is compensated," or is not exigible on some 
 other ground. The burden of proving that defence then lies upon 
 him ; and if he does not instruct it, decree will l)e given against 
 hiin. In such a form of pleading, therefore, if the case comes with- 
 in the statutory rule, the proper course is to find that, in terms of 
 the statute, the debt can only l)e proved by the defender's writ or 
 oath on reference, and to allow the i)ursuer to adduce such a proof 
 accordingly. If the debt is not proved by these means, of course 
 the defender gets absolvitor. If it is proved, his alternative plea 
 (e.g., of compensation) will come to be considered (e). The course 
 adopted in some cases, of finding that the prescription is elided by 
 the statements relating to the alternative defence, or that it does 
 not apply to the circumstances of the case, is plainly erroneous, and 
 has been reprobated in tlic recent and most authoritative deci- 
 sions (/). It is also erroneous to find in any case that, as the con- 
 
 (e) Several erroneous decisions on this head may be traced to the rule which requires 
 a defender to state all his grounds of defence at once, although some of them may be 
 prejudicial to the others. Were it not for this rule, a party sued for payment of a pre- 
 scribed bill or account would first plead a general denial of the debt, and maintain that 
 the only competent proof against him is his ewn writ or oath ; and afterwards, if it were 
 held either that the statute uu wliich he founded did not apply to the case, or that the 
 debt was proved by his writ or oath, ho would propone liis other defence, e.ff., of com- 
 pensation. Great care therefore is requisite, lest the rule of practice, whicli requires the 
 whole defences to be pleaded at once, should deprive the defender of his right to main- 
 tain that the general statutory rule, founded on tlie nature of the case as one of a privi- 
 leged class, shall bo applied ante omnia, and as prejudicial to any consideration whatever 
 of the circumstances of the individual case. See this fully considered in Alcock v. Eas- 
 son, 1842, 5 D.. 366, by Lord Justice-Clerk Hope, where his Lordship mentions that 
 Lord Chancellor Eldon greatly objected to the rule of pleading referred to, on account 
 of its tendency to deprive the defender of the proper efl'ect of his prejudicial pleas. See 
 also Campbell v. Grierson, 1848, 10 D., 361. (/) Alcock v. Easson. supra — 
 
 Campbell v. Grierson, supra.
 
 296 GENEEAL NATURE OF PRESCRIPTIONS. § 408- 
 
 stitution of tlie debt is adiuitted and payment is not averred, the 
 debt is resting-owing ; becanse the plea of prescription necessarily 
 implies a denial of resting-owing (g). 
 
 § 409. When the admission on record is qualified, effect must 
 be given to the whole of it, and unless it proves the subsistence of 
 the debt, the defence of prescription must be sustained. It is in- 
 competent to contradict the qualification by evidence ^7*0Mi dejure, 
 or to reject it as improbable, and, on the admission being thus 
 cleared of the qualification, to hold that it proves the debt (Ji). 
 
 In fine, the point to be determined, both in the vicennial pre- 
 scriptions and the shorter prescriptions above mentioned, is not 
 whether the deed is genuine or the debt due, but whether these 
 facts respectively are admitted by the defender on record, or by 
 writ or oath. 
 
 § 410. A defender allowing decree in absence to go against him 
 after the prescriptive period may open it up and plead prescription ; 
 a decree in absence not importing the statutory admission (i). 
 
 § 411. As these prescriptions or limitations are designed for 
 the protection of defenders, and are in their nature prejudicial to 
 the rest of the case, they must be maintained tempestive. If they 
 are waived, or are omitted until an order for a proof ^9roM^ de jure 
 has been granted and acquiesced in, or if, after having been pleaded, 
 they have been abandoned, they may not be maintained on the de- 
 fender finding that the evidence is unfavourable to him {¥). This 
 kind of defence ought also to be sustained or repelled at the thres- 
 hold of tlie case (J) ; and a proof ^row^ dejure before answer should 
 never bo allowed, because the very object of the statute and corre- 
 sponding plea is to exclude that mode of investigation as inconclu- 
 sive and apt to mislead (m). 
 
 These remarks will have cleared the way for a detailed consider- 
 ation of the limitations or prescriptions referred to, 
 
 ( g) Alcock V. Easson, supra. — Campbell v. Grierson, supra. (h) Alcock v. 
 
 Easson, supra. (t) Cases noted infra, § 453. {k) Ker v. Woods, 1832, 10 
 
 S., 774— M'Naughton v. M'Naugliton, 1813, Hume D., 396. See also Maule v. Somers, 
 1822, 1 S., 514— Smellie v. Gillespie, 1833, 12 S., 125, as referred to in L. Ordinary's 
 Note in Smellie v. Cochrane, 1835, 13 S., 544. (I) Per L. .Tustice -Clerk in Alcock 
 
 V. Easson, supra, 1842, 5 D., 356— Rose v. M'Leod, 1828, 7 S., 140. (m) Alcock 
 
 1'. Easson, supra.
 
 § 414. VICENNIAL PRESCRIPTION. 297 
 
 CHAPTER II.— OF THE VICENNIAL PRESCRIPTION OF HOLOGRAPH 
 
 WRITS. 
 
 § 412. The Act 16G9, c. 9, provides " that hoh)grapli missive 
 letters and liolograph bonds and subscriptions in compt books with- 
 out witnesses, not being pursued for within twenty years, sliall 
 prescribe in all time thereafter, except the pursuer offer to prove 
 by the defender s oath the verity of the saids holograph bonds and 
 letters, and subscriptions in tlie compt books." 
 
 § 413. The object of this statute is to prevent fabricated docu- 
 ments of obligation from being received as holograph, after the 
 means of detecting the fraud have been destroyed or impaired by 
 lapse of time. Nor is there any inconsistency between the privilege 
 and the prescription applicable to holograph writs ; for, while the 
 extreme difficulty of successfully forging a person's handwriting 
 throughout a deed makes it safe and proper to dispense with the 
 attestation of witnesses to such writings, yet, as the means of de- 
 tecting and proving forgery are perishable, the duration of the pri- 
 vilege ought to be limited. 
 
 § 414. This Act applies only to specific kinds of holograph 
 writings, namely, " holograph missive letters, and holograph bonds 
 and sul)Scriptions in comi^t books without witnesses." In one case 
 the following question arose— Lord Breadalbane having a recom- 
 mendation from the Scotch Privy Council to the Lords of the Trea- 
 sury for payment of £300, had delivered it to Sir Patrick IMurray 
 (who was then Eeceiver-General), with a note appended to it bear- 
 ing that the contents had been received by him from Sir Patrick, 
 who, on the other hand, granted his Lordship a holograph acknow- 
 ledgment bearing that the £300 was stated in his accounts, and 
 that if the same were allowed by the auditors, the money would be 
 paid to his Lordship. The article was passed by the auditors, and 
 in the fortieth year thereafter, Lord Breadalbane's heir claimed the 
 amount from the representatives of Sir Patrick. The defender hav- 
 ing pleaded, inter «?m, the \acennial prescription; to which the 
 pursuer answered that the document did not come within any of 
 the classes specified in the statute ; the Court first sustained the 
 defence on the statute, but afterwards modified this view, and 
 found that, in the whole circumstances of the case, no action lay 
 for the sum sued for; and the llcus^' nf Lords on appeal affirmed
 
 298 VICENNIAL PRESCRIPTION § 414- 
 
 tlie latter judgiueiit (a). Iji a case reported by Lord IMouboddo, 
 " the Lords found tliat a liolograi^li paper after twenty years could 
 not prove any fact tending to establish an obligation, and was to 
 be considered in every respect as good for nothing, unless supported 
 as the law directs" (b). It seems, however, that this decision was 
 not meant to extend the prescription to other documents than those 
 specified in the statute, but to show that it applied wherever a do- 
 cument falling within any of the statutory definitions was adduced 
 after the twent}' years in e\ddence of an obligation.^ 
 
 § 415. The Act is only directed against writings " pursued for" 
 after the twenty years. It does not affect documents used to in- 
 struct a defence, as payment or discharge. Whether it applies to 
 writings founded on after the twenty years to prove a defence of 
 compensation, which partakes of the nature of a counter-suit, has 
 not been settled (c). 
 
 § 416. This prescription is excluded by an action raised upon 
 the holograph writ within the twenty years (d), although the docu- 
 ment was not produced in Court during the process (e). But the 
 running of a counter-claim on the debt contained in the writing- 
 will not prevent the statute from operating upon it (/), although 
 pleading compensation upon the debt within the twenty years will 
 
 (a) Campbell v. Halkett, 1747, M., 11,634, Elch., " Prescription," No. 29, S.C; aflfd. 
 
 Cr. and St., 427. (6) Bank of Scotland v. , 1747, 5 B. Sup., 748. The 
 
 remainder of the report bears, " This case was put, — Suppose a holograph letter or de- 
 claration twenty years old produced to instruct that an assignation was in trust ; it 
 would signify nothing though the obligation would not arise in such a case from the 
 paper, but from the trust of whicli the paper was only a proof." 
 
 (c) The quinquennial and triennial prescriptions apply to defences of compensation, 
 as well as to actions on the obligation. See infra. (d) Act sitpra, g 412. 
 
 (e) Simpson v. Brown, 1791, Bell's Octavo Ca., 383. (/) Walkinshaw v. 
 
 Knajjperuy, 1737, Elch., " Prescription," No. 15. 
 
 1 The Act seems to apply to all holograph writings on which an obligation can bo 
 founded. A pursuer raised an action against the heir of his deceased brother, conclud- 
 ing alternatively for constitution of a sum of money advanced to the deceased brother, 
 as a debt against his heir, or for conveyance of certain heritable subjects. As to these 
 heritable subjects, he aveiTed that there had been a joint jrarchase by himself and his 
 brother, that his brother had agreed to convey his share to the pursuer on payment of 
 a sum of money, and that the pursuer had paid the sum concluded for. The pursuer 
 founded on letters which he said were holograph of his brother ; and in one of which 
 receipt of a large part of the sum concluded for was admitted, but the date of the last 
 of the letters was more than twenty years prior to the date of the action. In these 
 circumstances the plea of vicennial prescription was sustained ; and the Court found 
 tliat the letters could not be founded on " unless the pursuer offered to prove the verity 
 thereof by the defender's oath "; Mowat v. Banks, 1856, 18 D., 1093.
 
 § 420. OF IIOLOGUAl'lI WKITS 2D9 
 
 do so ((/). The L'flcct ol" the dociuueiil is itresurved liy niisiii*^ dili- 
 gence, as well as by suing, iiixjii it ; Imt merely registering it with 
 a view to charge the debtor will not snflK-e (h). Nor is a suspen- 
 sion of a threatened charge upon the writ sullicient, being an act of 
 the alleged debtor in anticipation of diligence which he meant to 
 resist («). 
 
 § 417. Professor More (/r) observes, that it "is generally agreed 
 that, to keep alive a holograph bond or other deed, it is not neces- 
 sary that any action or diligence sliould be raised upon it within 
 the twenty years, provided it has all along been acted upon and 
 recognised as a binding obligation, by the payment of interest or 
 otherwise. It is held to be ' pursued for' within the statutory period 
 l)y such acts recognising its validity, and the statute seems to con- 
 template cases where nothing has taken place or been done under 
 the document for twenty years." But this view, however just and 
 equitable, seems hardly to be consistent with the terms of the 
 statute (0- 
 
 § 418. The effect of action or diligence on the docimient is to 
 exclude the operation of the statute, and to keep the writ in force 
 until it be extinguished by the long negative prescription, or he 
 discharged {m). Mr More considers that payment of interest ujjon 
 the writ should have the same effect (w). 
 
 § 419. The twenty years commence at the date of the docu- 
 ment, although the obligation under it be future or contingent (o). 
 They do not run against minors during their minority (^9). 
 
 § 420. The statute does not extinguish the debt- or obligation, 
 but only the holograpli writ as proof of it ; and if the creditor prove 
 the "verity" — that is, the holograph quality of the "bond and 
 letter " — by the debtor's oath on reference, its full effect ^^^ll be 
 restored (/•). It is not enough merely to prove that the subscrip- 
 tion is genuine ; for that would only put the A\Tit into the position of 
 
 {g) Tnfra, g 435. [h) Wright v. Wright, 1717, M.. 11.208. 
 
 [i) Wright V. Wright, mpra, {k) More, 271. (/) It certainly 
 
 seems absurd that a payment under compulsion, or a decree in absence, should exclude 
 tlie proscription ; while a voluntary piiyment, which is the strongest recognition of the 
 authenticity of an obligatory document, should not have that effect. In this view of 
 the law, not only would a document on which interest had been paid for nineteen years 
 prescribe in the twentieth, but payment of interest continued after tlio twenty years 
 have run would not bar prescrii)tion. Perhaps the writs in such cases may be sustained 
 on the ground of rei interventus or homologation, or of personal exception against the 
 defender pleading the statutory rule. (w<) Act cited snjira, ^ 412. 
 
 (n) More, 271. (o) Act quoted supra, g 412 — Homo v. Donaldson. 1773, 
 
 M., 10,9l»2— More, 271. (p) Act quoted § 412. (;) lb.
 
 300 VICENNIAL PRESCKIPTION. § 420- 
 
 one signed but iinprubative (s). The " subscriptions" in the count 
 books, however, are effectual if their genuineness is proved by the 
 party's oath on reference (t). 
 
 No case seems to have arisen as to the effect of the defender 
 having admitted by writ that the document is genuine. 
 
 § 421. Where the original obligant has died, reference may be 
 made to the oath of his heir, who may have complete personal 
 knowledge of the fact in issue (u).^ But it is not enough for the 
 creditor to prove in this way the heir's opinion or inference from 
 comjMratio literarum or other circumstances, that the document is 
 genuine ; for the statute contemplates the party's oath of know- 
 ledge, not of mere credulity (y). Yet, where the heir deponed 
 that, looking to the circumstauces, "he could not have a doubt 
 upon the point," although he could not swear positively to the 
 fact, the Court held the statutory proof to be complete, one judge 
 remarking, — " Shall we not believe what the heir himself be- 
 lieves ? " (lu) 
 
 § 422. As the statute is not founded on a presumption of pay- 
 ment, the creditor does not require to refer to his debtor's oath 
 whether the debt is resting-owiug {x) ; and any statement on that 
 point is extrinsic to the reference (^). 
 
 § 423. It is not 'pars judicis to enforce this statute. The pre- 
 scription is a privilege of the defender, and must be pleaded ; and, 
 therefore, if he joins issue on a ^xooi prout dejure, he will be bound 
 by the result (z). 
 
 (s) E. Leven v. Arnot, 1715, M., 10,991— Dalziel v. L. Lindores, 1784, M., 10,994— 
 Graham v. Cochrane, 1725, M., 10,992 — Ivory's Ersk., p. 771, note — 1 Bell's Com., 
 330, correcting Ersk., 3, 7, 26. (t) Act quoted supra, § 412. 
 
 (m) Dalziel v. L. Lindores, 1784, M., 10,994, Hailes, 984, S.C.— Graham v. Cochrane, 
 1725, M., 10,992— Brown v. Crawford, 1741, M?, 9417— Co?i^ra Mackenzie's Observ., 
 Works, vol. i, p. 442.2 (j,) Brown v. Crawford, siipra (Kilkerran's Rep.), M., 
 
 9418. (w) Dalziel v. L. Lindores, as reported hy Hailes, supra. See also 
 
 Graham v. Cochrane, supra. (x) Muir v. Cunningham, 1695, 4 B. Sup., 269 
 
 — E. Leven v. Arnot, 1715, M., 10,991. (?/) Ersk., 4, 2, 11— Kinloch v. L. 
 
 Conservator, 1625, M., 13,231— Grant v. Anderson, 1705, M., 13,235. {£) Wyse 
 
 V. Wyse, 1847, 9 D., W^b— Supra, g 411. 
 
 2 Mowat V. Banks, 1856, 18 D., 1093, supra, § 414, note
 
 §42;"). SEXENNIAL PRESr'UIlTIOX. 301 
 
 CHAPTER III.— OF THE SEXENNIAL PRESCRirTION OF BILLS AND 
 TROMISSUHY NOTES. 
 
 § 424. The prescription of l)ills and promissory notes was intro- 
 duced by 12 Geo. Ill, c. 72, which enacts: — "Whereas the not 
 limiting bills and promissory notes to a moderate endurance in that 
 part of Great Britain called Scotland has been found by experience 
 to be attended with great inconveniences, for remedy whereof be it 
 enacted, by the authority foresaid, tliat no bill of exchange or in- 
 land bill or promissory note executed after the 15th day of May 
 1772 shall be of force or effectual to produce any diligence or action 
 in that part of Great Britain called Scotland, unless such diligence 
 shall be raised and executed, or action commenced thereon, within 
 the space of six years from and after the terms at which the sums 
 in the said bills or notes became payable" (a). 
 
 " Provided always, that no notes commonly called bank notes or 
 post bills, issued or to be issued by any bank or banking company, 
 and which contain an obligation of payment to the bearer, and are 
 circulated as money, shall be comprehended under the aforesaid 
 limitation or prescription ; and that it shall and may be lawful and 
 competent, at any time after the expiration of the said six years, 
 in either of the cases before mentioned (6), to prove the debts con- 
 tained in the said biUs and promissory notes, and that the same are 
 resting and owing, by the oaths or wTits of the debtor" (c), 
 
 " And it is hereby enacted and declared, that the years of the 
 minority of the creditors in such notes or bills shall not be computed 
 in the said six years" {d). 
 
 These enactments, which at first were only temporary, were 
 made perpetual by the 33 Geo. Ill, c. 18, § 35. 
 
 I. Scope and effect of this -p-escription. 
 
 § 425. Under the enactments thus quoted, a bill or promissory 
 note loses its force and effect as a probative document of debt, if ac- 
 tion or diligence is not raised upon it within the statutory period ; 
 but the creditor will nevertheless succeed in his claim, provided he 
 prove the debt contained in the bill or note, and the subsistence of 
 
 (a) § 37. (J) These referred to § 37 quoted above, and ? 38 as to bills 
 
 dated before the Act came into operation. (c) § 30. {d) ? 40.
 
 302 SEXENNIAL PRESGiaPTION. § 425- 
 
 that debt, by the ^vl•it or oath of the alleged debtor. '' During the 
 six years the bill proves itself ; and the burden of disproving value 
 or proving pajonent lies on the debtor, and is, of course, limited to 
 the writ or oath of the holder. After the lapse of six years the 
 burden of proving the ' debt contained in the bill,' and ' that it is 
 resting-owing,' is laid upon the holder of the bill ; and that, too, is 
 limited to the writ or oath of his adversary " (e). 
 
 § 426. Accordingly, a prescribed bill is not only ineffectual as 
 a sole ground of action, and incompetent as the foundation of sum- 
 mary diligence (/) ; but it cannot be used for any purpose which 
 involves its subsistence as an obhgatory document. A prescribed 
 bill was therefore held not to be a sufficient voucher of a claim in a 
 sequestration, so as to entitle the claimant to vote at the election 
 of the trustee ; and the circumstance that the claimant, as founding 
 on the debt in the bill, had been the concurring creditor in the 
 petition for sequestration, was held not to obviate the prescription 
 which the other creditors were entitled to plead (g)} It has some- 
 times been thought that after the six years action could only be 
 raised for the debt, and that a summons laid upon the bill w\as in- 
 competent (Ji). But the recent practice admits summonses so li- 
 belled ; because the statute allows the " debt contained in the bill " 
 to be proved in a certain way, and therefore in suing for the debt 
 the l)ill may be libelled on descriptione (i). 
 
 § 427. The statute, however, only applies to actions laid upon 
 bills as subsisting documents of debt. A claim of relief or recourse 
 for the amount, on the ground that the pursuer retired the bill on 
 behalf of the defender, does not come within the statutory rule ; for 
 it proceeds on the averment that the bill is extinguished, and there- 
 fore a reference to the debtor's oath as to its subsistence would be 
 inept. This principle was applied to a claim by the acceptor of a 
 bill against the drawer, on the ground that he had accepted and 
 
 (e) Per Lord FuUertou in Darnley v. Kirkwood, 1845, 7 D., 600. (/) Scott 
 
 V. Brown, 1828, 7 S., 192. Here an adjudication on a prescribed bill was held inept. 
 See this case infra, § 430 {z). So in Armstrong v. Johnstone, 1804, M., 11,140, dili- 
 gence by arrestment on a prescribed bill was held to be inept, and its nullity not to 
 have been removed by the subsequent oath of the debtor admitting the debt. 
 
 {g) Lockhart v. Mitchell, 1849, 11 D., 1341. See also Wink v. Mortimer, 1849, 11 
 D., 995.1 (/t) Stirling v. Lang, 1830, 8 S., 638— Bell's Pr., § 696. 
 
 {i) Christie v. Henderson, 1833, 11 S., 744— Napier on Prescriptions, 829— Shand's 
 Prac, 213. See also Bell's Pr., supra. 
 
 1 Nisbet and Romanes v. Nicoll. 1856, 18 D., 1042.
 
 §429. SEXENNIAL I'KESCUllTIOX. 303 
 
 paid tlu' bill nil the diiiwci's lidiali' {/,■). Ami wiiciv a bill had been 
 accepted by two parties in consideration of value to one of tliera, 
 the sexennial prescription was held not to apply in an action of re- 
 lief against him by the other acceptor, wIkj had been obliged to re- 
 tire it {I). Tlie same principle w^ill apply to a claim by the agent 
 of a party to a bill (not being himself an obligant in it) for repay- 
 ment of the amount, as having been advanced by him on behalf of 
 his constituent (m). But where the drawer of a bill, being the ac- 
 ceptor's law agent, had discounted it with a bank, and retired it 
 when due, taking a special receipt to that effect from the bank ; in 
 an action at the instance of his representatives against the acceptor 
 after the lapse of six years, on the ground that he had paid the bill 
 on the acceptor's bclialf, the statutory rule was applied (n). Here, 
 it will be observed, the action was at the instance of the proper 
 creditor in the bill against the proper debtor, which position of the 
 pursuer could not have been alfectod by the collateral transaction 
 wdth the bank ; and as the statute would have applied in an action 
 by the bank against the acceptor, it must have been equally appli- 
 cable to an action against him by the drawer, who had come into 
 the shoes of the bank. 
 
 § 428. The statute does not affect a l)ill when founded on to 
 instruct a defence (o), e.g., where one being sued to account for his 
 intromissions takes credit for payments of bills granted by the pur- 
 suer either to liimself (^j>) or to third parties (r). It has not been 
 settled whether a bill founded on to instruct a plea of compensation 
 comes under the statutory rule («). It will proliably be held to do 
 so ; because the equitable rule which allows a party to plead his 
 counter claim without a separate action of constitution, should not 
 exclude the other party from any pertinent plea either as to the 
 existence or the proof of the counter claim.^ 
 
 § 429. If, however, a bill has been granted by way of constitu- 
 tion or collateral security for an obligation existing independeutly 
 of it, the creditor suing for implement of that obligation is not af- 
 fected by the circumstance that the bill has been prescribed ; and 
 
 {k) Ralston o. Lament, 1792, M., 1533; 11,130, S. C. (0 JoUy v. M'Neill, 
 
 1829, 7 S., 666. (m) See Hall v. Arnot, 1837, 16 S., 263. (n) Buchanan 
 
 V. Mucdonald, 1840, 2 D., 1444. The distinction between tliis case and Ralston v. 
 Lamont, supra, is narrow. (o) Act quoted supra, g 424. (p) Thomson 
 
 V. Balvaird. 1834, 13 S., 212. (r) Hall r. Arnot, 1837, 16 S., 263. 
 
 (s) The triennial and quinquennial prescriptions apply to debts pleaded in compen- 
 sation. See infra. 
 
 2 This seems assumed in the case of Ross i: Robertson. 18o:i. 17 D.. 1144.
 
 304 SEXENNIAL PRESCRIPTION. § 429- 
 
 therefore he is not shut up to pvoviug his claim by his debtor's writ 
 
 or oath (0-^ 
 
 § 430. The statutory limitation does not apply if diligence has 
 been raised or executed, or action commenced, on the bill within 
 the six years (u). It was therefore held to be barred by a charge 
 of horning {x), or a horning and caption {y) on the bill ; but not by 
 merely protesting it and registering the protest (z), or by a general 
 charge upon it to enter heir to the original debtor (a). It is doubt- 
 ful whether the limitation is excluded by a meditatione fugae war- 
 rant ; which is a preliminary step to enable one to use diligence 
 effectually, rather than actual diligence (V). An informal (e) or 
 incompetent {d) action, or one before an incompetent court (e), or 
 against a m'ong party (/), raised during the six years, will not 
 keep a bill in force. Nor will an action in which the defender was 
 unable to appear from its having been raised in a foreign country at 
 war with his own {g). But the circumstance of the defender hav- 
 ing been an outlaw when the action was raised, will not prevent it 
 from excluding prescription (A). An action which has been al- 
 lowed to fall asleep will exclude {i) ; but it is more than doubtful 
 whether one which has been abandoned will do so {k). An action 
 in which the defender was assoilzied does not interrupt the long 
 prescription (?). In a case of quinquennial prescription it was held 
 to be no bar that the landlord had executed a sequestration in secu- 
 rity of rent not yet due, and had allowed the tenant to sell the se- 
 questrated effects ; such sequestration being by way of security for 
 the debt, and not diligence for payment of it {m). 
 
 (t) Hunter v. Thomson, 1843, 5 D., 1285— Sinclair v. Sinclair, 1823, 2 S., 600— 
 CampbeU v. Campbell, 1797, M., 1648. («) 12 Geo. Ill, c. 72, § 37, supra, § 424 
 
 —Roy V. Campbell, 1850, 12 D., 1028. (x) Henderson v. Stewart, 1830, 9 S., 
 
 180 Main v. Wilson, 1839, 1 D., 722 (here there was also a poinding) — Eraser v. 
 
 Urquhart, 1831, 9 S., 723. (y) Thomson v. Easton, 1831, 9 S., 759. 
 
 (2) Scott V. Brown, 1828, 7 S., 192— Douglas, Heron, & Co. v. Richardson, 1784, 
 M., 11,127— Armstrong v. Johnstone, 1804, M., 11,140. (a) Thomson v. E. Lin- 
 
 lithgow, 1708, M., 4504. {b) See Boag v. Fisher, 1849, 11 D., 362. 
 
 (c) Gordon v. Bogle, 23d June 1784, F. C, and M., 11,127- Baillie v. Doig, 2d 
 March 1790, F. C. (d) Cochrane v. Prentice, 1841, 4 D., 76. (e) M'Laren 
 
 V. Buik, 1829, 7 S., 483— More, 26d— Contra, Scott v. Bryden, 1706, M., 11,263. 
 
 (/) Reid V. Ker, 1739, Kilk., 414. {ff) Don v. Lipmann, 1837, 2 Sli. and 
 
 M'L., 682. The defender had not liad intimation of the action. (h) Brodie v. 
 
 Sheddan, 20th February 1821, F. C. («) Denovan v. Cairns, 1845, 7 D., 378. 
 
 (A-) lb. (0 Montgomery v. Fowles, 1751, Bell's Folio Ca., 203. 
 
 (to) Cochrane v. Ferguson, 1830, 8 S., 324. The petition for sequestration in this 
 case contained a prayer for decree of payment of the rent when exigible. 
 
 3 Blake v. Turner, 1860, 23 D., 15.
 
 § 432. SEXENNIAL PRESCRIPTION. 305 
 
 § 431. Eijuivalciit to action or diligence is (claiming upon the 
 1)111 in a sequestration umlor the Bankrupt Act (w)/ or in a ranking 
 and sale, or other itrocess of conijictition (o). But it was hold that 
 a bill is not kept in force hy having been produced under a dili- 
 gence against havers, in a process raised hy the debtor's tutors for 
 obtaining authority to sell his estate in order to pay off debt ; the 
 object of such a process not being to distribute the debtor's funds, 
 but to satisfy the Court as to the expediency of a sale (p). 
 
 § 432. The question has also been raised more than once 
 whether extrajudicial proceedings, adopted by creditors for the pur- 
 pose of making good their debts, can have the same effect as pro- 
 cesses of competition, in preventing their claims from prescribing. 
 In the first case on this point the Court found that it was not re- 
 levant to interrupt the sexennial prescription that the creditor had 
 emitted an affidavit to the verity of his debt under a composition 
 contract (r). The same point arose soon afterwards in regard to 
 the triennial prescription ; where a party having died insolvent, a 
 meeting of his creditors was held, which was also attended by the 
 factor loco tutoris for his children. It was there agreed that all the 
 creditors should assign their debts to a trustee, who should take a 
 general decree of constitution against the debtor's representatives. 
 The claims of some of the creditors w^ere prescribed at the date of 
 the meeting, but as to others the statutory period expired in the 
 interval between the meeting and the action of constitution. The 
 
 (n) By 2 and 3 Vict., c. 41, 2 26, " the presenting of or concurring in a petition for 
 sequestration, or the lodging a claim in terms of this Act in tlie hands of the interim- 
 factor, sherift'-clerk acting as factor or trustee, or the sheriif officiating as preses at any 
 meeting of croditors, shall interrupt prescription of tlie creditor's debt so petitioning, 
 concurring, or claiming, and in regard to such debt bar the effect of any statute of 
 limitations in England or Ireland, or Her JIajesty's dominions, and although the se- 
 questration shall be recalled, such interruption or bar shall notwithstanding be effec- 
 tual." Mr Bell (3 Com., 144) observes, that as to the English statute of limitations, 
 this only bars proceedings in Scotland. There was a similar but not so compreliensive 
 provision in the former Sequestration Act, 54 Geo. Ill, c. 137, § 52. See Crawford v. 
 Haig, 1827, 5 S., 705. The question lias been raised, but not decided, whether lodging 
 a claim under which the claimant did not wish to recover anything, would prevent pre- 
 scription. The creditor had u lien over the debtor's title-deeds, which enabled him to 
 recover from other parties ; Dalgleish v. Christie. 1833, 11 S., 321. (o) Douglais, 
 
 Heron, & Co. v. Richardson, 1784, M., 11,127— Nat. Bunk r. Hope, 1837, 16 S., 177— 
 Lindsay v. E. Buchun, 17th February 1854, 16 D., GOO. (/>) Ferrier v. E. Errol, 
 
 9th July 1811, F. C. (r) W'atsou v. Auchincloss, 1822, 1 S., 371 (new ed.). 
 
 < The corresponding section in the Act 19 and 20 Vict., c. 70. is the 100th. Tlio 
 provision is the same as in the Act 2 and 3 Vict. 
 
 VOL. I. U
 
 30G SEXENNIAL PRESCRIPTION. § 432- 
 
 Court lielJ that while the former had prescribed, the hitter had 
 not. This decision did not proceed on the ground of personal ex- 
 ception against the representatives or against those creditors who 
 by attendance at the meetings had concurred in the common sujper- 
 sedere of diligence ; l)ut it struck at the absent as well as the pre- 
 sent creditors, and gave to the extrajudicial proceedings, which had 
 been adopted in hen of action or diligence, the same effect as would 
 have flowed from formal process (.s). Again, where the holder of a 
 bill of exchange which was not prescribed acceded to a trust-deed 
 for behoof of creditors, Avhich with the deed of accession and subse- 
 quent infeftment narrated the debt; and where the debt was recog- 
 nised in the minutes of the creditors, in the correspondence of the 
 trustee, and in a deed of re-conveyance to the truster's heir ; in an 
 action at the instance of the creditor against the debtor's heir, it 
 was held that the latter could not plead the sexennial prescrip- 
 tion (0- The decision seems to have gone on the broad principle 
 that a creditor who accedes to a trust-deed for behoof of creditors, 
 takes a step equivalent to raising action on his claim (u). It could 
 not have proceeded on the ground that the debt had been admitted 
 by the other creditors within the six years ; as that would not have 
 excluded the statutory rule. Nor do the Court seem to have treated 
 the deed of re-conveyance (which was dated after the prescriptive 
 period) as a writ of the debtor admitting the debt. In another 
 case a party had executed a trust-deed for behoof of his creditors, 
 one of whom, holding an unprescribed bill granted by the debtor, 
 intimated to the law agents of the trustees that he believed he had 
 a claim on the estate, and asked what composition it was to yield ; 
 Avhereupon the agents replied that if he would transmit his claim 
 they would communicate it to the trustees and let him know their 
 answer. He did so, but took no farther steps till nine years after- 
 wards. Having then revived his claim, the Court held that it had 
 incurred prescription (tv). 
 
 § 433. There is evidently a conflict in these decisions. The 
 result of them seems to be, that a bill or account (for the same prin- 
 ciple applies to both) will not incur prescription where the creditor 
 has claimed upon it in an extrajudicial competition of creditors ; 
 such claim coming within the spirit of the statutory provision re- 
 
 («) Stuart V. Douglas, 1823, 2 S., 200 (new ed.). [t) Ettles v. Robertson, 
 
 1833, 11 S., 397. {u) In support of this view see also "Watson v. Hunter, 1841, 
 
 3 D.,'583, per Lord (Ordinary) Cockburn. (w) Ewing v. Cuming, 1835, 14 
 
 S., 1.
 
 § 43r). SEXENNIAL PRESCRIPTION. 30? 
 
 j^'unliii,^ ]misuil or diligence at liis instance; but tliat lUi nnlullillc(l 
 iiilciilinii to make and insist In sudi a claim will nut suflice (x).^ 
 
 § 4H4. Entering into a special snLinission lor deciding on a 
 claim saves it from prescrijjtion (//). But a general submission <ti' 
 all (juestions between tlie jiarlics lias been held not to bave this 
 effect (2). It does not ajipear from the report of the latter case 
 whether the prescribed debt had been claimed n]»on during the \)re- 
 scriptivc peri(Kl. There seems to be no ground for distinguishing 
 between such a claim in a general sulmiission and a sjiecial submis- 
 sion as to the individual claim. 
 
 §435. It has been held, as to the (]nin(juennial and triinnial 
 prescriptions, that founding judicially upon tlie debt as a defence on 
 the ground of compensation or retention saves it from prescrib- 
 ing («); whereas this does not arise from the mere concourse of 
 
 (x) With the cases in tlio preceding notes compare ? 451, and relative cases, 
 (y) Vans v. Murray, 14th June 1816, F. C— H. M. Advocate v. Hay. 1782, 2 Pat. 
 App. Ca. 272. (z) Garden v. Rigg, 1743, Kilk., " Prescription," No. 11. 
 
 (a) McDonald v. .Tackson, 1826, 5 S., 28— Sloan v. Birtwistle, 1827, 5 S.. 742. 
 
 5 Tlie ground of judgment particularly indicated by the Lord Ordinary Corehouse, in 
 the case of Ettles, was that prescription could not run against the bill while the holder 
 of it was, by accession to the trust, precluded from doing diligence on it. In the case of 
 Blair v. Horn, 1858, 21 D., 45, Lord Justice-Clerk (Inglis) said, that in the case of 
 Ettles the Court in effect held " that the trust and accession amounted to a reconstitu- 
 tion of the debt ;" and Lord Wood, in the same case, expressed an opinion, that where 
 a deed or other writing, within the years of prescription, is relied on as a reconstitution 
 of a debt originally contained in a bill, the deed or writing slioiild be libelled as the 
 ground of action. In Blair v. Horn, the debtor, in 1840, had granteil a trust-deed 
 conveying to trustees certain heritable property, on the narrative that his creditors, and 
 among tliem the Bank of Scotland (of which Blair was manager), had agreed to delay 
 enforcing their claims, and to take payment by instalments at twelve and twenty-four 
 months, and that, if he faileil to pay the instalments, the trustees should have power to 
 sell the subjects and pay the debts. The debts not having been paid, Blair, in 1856, 
 raised an action against the trustees for the balance on four bills due in 1839 and 1840. 
 In these circumstances the plea of prescription was sustained, it being held that the 
 trust-deed preclude<l the creditor from doing diligence for twenty-four montlis only, 
 since which time much more than six years had elapsed. In tlie case of Ettles, the 
 amount of the debt was mentioned in the trust-deed ; but not in the case of Blair. 
 Tlie law seems to be, that the plea of prescription yrill bo overcome — (1) by sucli 
 procfcdings on the bill within the period of prescription as amount to action or dili- 
 gence : (2) by writ after the lap.'se of the period of prescription ; (3) by such reconstitu- 
 tion of the debt as will enable the creditor to dispense with the bill ; and, perhaps. (4) 
 by such a transaction as may be held to imply an agreement that action or diligeme 
 sliould not be necessary in or<ler to keep up tlie debt. 
 
 u2
 
 308 SEXENNIAL PRESCHirTlOX. § 435- 
 
 debit and credit in compensation (6), or from retention (c), without 
 these being pleaded judicially. The same rules apply to the sexen- 
 nial prescription.^ 
 
 § 436. A judicial claim is required for preventing the statute 
 from applying, although the debtor has been under sentence of for- 
 feiture (d) or outlawry during the whole of the six years (e). 
 
 § 437. In order to bar prescription, the .action or diligence 
 must be at the instance of the creditor or holder of the bill. Sus- 
 pension by the debtor of a threatened charge on it has not this 
 effect (/') ; nor has action and decree raised by the debtor in the 
 bill against one bound to relieve him, that being res inter alios acta 
 as regards the creditor ((/). But diligence by one who is the holder 
 of the bill at the time prevents prescri^ition from running against 
 a subsequent indorsee, although the indorsation is blank, and the 
 diligence was not specially assigned (It). 
 
 § 438. Action or diligence against one obligant bars prescrip- 
 tion from running in favour of any other (i). Action raised against 
 the acceptor prevents prescription from being pleadable by the 
 drawer (J). 
 
 § 439. When prescription has been excluded by action or dili- 
 gence within the statutory period, the creditor's right is preserved 
 entire, to be followed forth either by that or by any other appro- 
 priate procedure (k). Nor does a bill on which action or diligence 
 has timeously followed again become subject to the operation of 
 the statute at the expiry of six years from the date of the measure. 
 
 (b) Galloway v. Galloway, 1799, M., 11,122— Dickson v. M'Aulay, 1681, M., 11,090 
 —Murray v. Thomson, 1665, M., 11,214— Maxwell v. Hemes, 1712, M., 11,218. This 
 holds also in the vicennial prescription ; Walkinshaw v. Knapperny, 1737, Elch., " Pre- 
 scription," No. 15. (c) Mason v. E. Aberdeen, 1709, M., 11,094— M' Adam v. 
 Fogo, 1780, M., 6252, Hailes, 875, S. C— Coupar v. Ogilvy, 1753, M., 11,107. But see 
 Dallas V. M'Kenzie, 1695, 4 B. Sup., 271— Mitchell v. M'Adam, 1712, M., 11,096. 
 
 (d) Camphell v. Campbell, 1770, 2 Pat. App. Ca., 193. This was a case of long posi- 
 tive prescription. {e) Brodie v. Sheddan, 20th Feb. 1821, F. C. See ? 430. 
 
 (/) 1 Bell's Com., 393. It was so held in a case of vicennial prescription ; Wright 
 V. Wright. 1717, M., 11,268. (ff) V. Arbuthnot v. Douglas, 1795, M., 11,133. 
 
 (A) M'Lauchlan v. Thomson, 1831, 9 S., 753. (i) Gordon v. Bogle, 1784, 
 
 M., 11,127 and 7532— M'Indoe v. Frame, 1824, 3 S., 295— Soutar's Eeps. v. Soutar, 
 1827, 5 S., 876-Nat. Bank v. Hope, 1837, 16 S., 177-Paxton v. Foster, 1842, 4 D., 
 1515— Lindsay v. E. Buchan, 17th Feb. 1854, 16 D., 600. (J) Roy v. Campbell, 
 
 1850, 12 D., 1028. (k) M'Lauchlan v. Thomson, 1831, 9. S., 753— Eraser v. 
 
 Urquhart, 1831, 9 S., 723 — Lindsay v. E. Bueban, supra — See also Donovan v. Cairns, 
 1845, 7 D., 378. 
 
 6 Koss V. Robertson, 1855, 17 D., 1144; Lord Curri
 
 § 44-J. SEXENNIAL IMiKSClMrTION. IjOO 
 
 r>ii( the effect of tlic action or <lili^-ouce is to preserve tlic liill in 
 loi-cc liiron^lioiit the years of tlic long negative prescription (/). 
 
 § 44U. Tlie six years eomnienee at tlie time wlien tlie sum in 
 tlu! hill ])ecame exigil)le (m). Accordingly, when the hill is pay- 
 ahle on (leniand, they begin fo mn from its date (;*). ]jut where 
 days of grace are alhnved, tht-y commence from the last of these 
 days, as payment cannot be exacted sooner. This is therefore the 
 rule as to bills payable at so many days or months after date, or on 
 a day specilied (o). Bills payable at sight do not begin to prescribe 
 until presentment. If the acceptance to such a bill is not dated, 
 the term runs from the date of the bill, wliicli is Ik Id to l)e the 
 date also of the presentment (j)). It is considered an open point 
 whether days of grace are allowed when the acceptance to such 
 bills is dated (r). They are admitted in bills payable a certain 
 time after presentment (s). 
 
 § 441. The years of minority of the creditr>rs in the liill or note 
 are not computed in the prescriptive term (t). 
 
 II. Provimj the Debt ajter tlie Bill has prescribed. 
 
 § 442. This prescription (as has already been observed) is 
 founded on a tw'o-fold presiim^jfion, 1st, that the bill did not create 
 a debt originally ; and, 2d, that if it did, the debt has been dis- 
 charged. The statute tljerefore enacts tliat the pursuer nmst 
 prove, 1st, that a debt was contained in the bill ; and, 2d, that that 
 debt is resting-owing : and it limits his mode of proof to the al- 
 leged debtor's writ or oatli on reference {u). As already noticed, 
 
 (0 M'Indoe v. Frame, 1824, 3 S., 295— More, 273. See also Fraser i;. Urqnhart, 
 183], 9 S., 723— M-Lauchlan v. Thomson, 1831, ib., 753— Ettles v. Eobcrtson, 1831, 11 
 S., 397 — JIain v. Wilson, 1839, 1 D., T22— contra, Ferguson v. Bethune, 7th March 
 1811, F. ('. (;») Act quoted supra, § 424. (w) Stephenson v. Stephen- 
 
 son's Tr., 1807, M., •' Bills," Appx. No. 20— Cook v. M' Janet, note to ib. — 1 Bell's Com., 
 398— Thomson, 628. (o) Douglas, Heron, & Co. v. Grant's Tr., 1793, M., 4G02 ; 
 
 affid., ib. ; 6 Brown's Pari. Ca., 276, S. C— 1 Bell's Com., 393. In Allan v. Ormiston, 
 1817, Hume D., 477, this was held as to a bill payable one day after date. 
 
 (/)) Kinloch v. Mercers, 1748, M., 477— Tarras v. Innes, 1740, M., 475, Elch., " Bill," 
 No. 21, S. C— Moflat v. Marshall, 1838, K; S., 400— Thomson, 377, 589. 
 
 (r) 1 Bell's Com., 393, 411— Thomson, 628. (s) 1 Bell's Com.. 411— Thomson, 
 
 628. The consequence of holding that bills payable at sight do not begin to prescribe 
 till presentment may be to keep them alive during the long prescription. But although 
 this seems inconsistent with the spirit, it is according to the terms of the statute 12 
 Geo. Ill, c. 72, g 37. Such bills therefore must bo left to those inferences arising from 
 mora on which (as already mentioned) the sexennial prescription has been founded. 
 
 {() 12 Geo. Ill, c. 72, g 40 : supra, I 424. (m) 12 Goo. Ill, c. 72, ? 39. quoted 
 
 supra. § 424.
 
 310 SEXENNIAL FKESCKlFnON. § 442- 
 
 eft'ect is given to uJmissiuiis on record as well as to tiiose in the 
 writ or oatli (w). If the pursuer can prove the constitution of the 
 debt by the defender's writ or admission on record, lie is only bound 
 to refer re sting-owing to tlie defender's oath (x). 
 
 § 443. I. — In order to prove the constitution of the deM it is not 
 enough for the creditor merely to instruct by the debtor's writ or 
 oath that the latter signed the bill. He nmst prove that the sub- 
 scription was such as to create an obligation for the debt which the 
 bill contains. Thus a defender was assoilzied Avho admitted his 
 subscription, but stated that he got no value, and signed the ])ill in 
 mistake for a receipt (?/). And the same was held as to the (|uali- 
 iied admissions that the defender signed the bill on a distinct un- 
 derstanding and agreement with the drawer (wliose heirs sued on 
 the bill), that it was not to constitute a debt against him, and that 
 he. would not be called on to pay {z) ; — and that the defender ac- 
 cepted the bill in order that the payee might with the proceeds re- 
 tire another bill to which the acceptor was a party, but that the 
 payee had not so applied them, that the deponent had to pay the 
 first bill, and did not know what had become of it («). So where 
 a defender deponed that the sum which he received for the bill 
 was in i)art payment of a previous bill by the pursuer to the defen- 
 der's father, and that the bill sued on had been meant as a receipt 
 
 (w) Su2)Ta, I 407. {%) Deans v. Steele, 1853, 16 D., 317— Wilson v. Strang, 
 
 1830, 8 S., 625. {y) Agnew v. M'Kae, 1782, M., 13,219. {z) Little's 
 
 Tr. V. Baird, 1827, 5 S., 820. (a) Drummond v. Crighton, 1848, 10 D., 340— 
 
 Lord Fullerton observed in this case, " the expression, the debt contained in the bill, 
 cannot mean the obligation created by the mere fact of signing the document. That 
 would be in substance rearing up the bill itself on the proof by the granter's oath that 
 the signature was genuine ; a construction at variance with the expressed object of the 
 statute. The words, I think, must be held to mean the debt or the sum of money inde- 
 jtendently of the bill in liquidation or evidence of which the bill was granted." . . . 
 " The admission that a party had signed a bill, and was willing to be bound for the 
 amount contained in it when advanced, is no proof of the debt, unless it be also proved 
 that the advance was actually made." The same view was thus illustrated by Lord 
 Mackenzie, " I put the case that the statute had said that the matter might be proved 
 by parole, and that a witness being called was asked if he delivered the bill to be dis- 
 counted, and said that he did. But when asked whether he saw it discounted liis an- 
 swer was, 'No! No! I know nothing about that.' Would that be evidence that it was 
 discounted? It would be a plain case of defective evidence." "Why then should we 
 apply a ditierent judgment? Does it follow that because a bill has been given to be 
 discounted, it has in reality been so ? I have said already what is the fact at this pre- 
 sent time (during the monetary crisis of 1848), that for every bill offered to be dis- 
 counted, a hundred are refused." See also on this case per I/uid I'resident M'Ncil in 
 Boyd V. Eraser, 1853, 15 D., 344.
 
 §444. SKXKNNIAL I'KESCim'TlOX. 311 
 
 lor the aiuount, the Court (hy a l)arc luajority) assoil/jcil liini ; bc- 
 (•aiiso his oath denied, instead of proving, that tlic bill had been 
 granted in order to constitute a debt (b). 
 
 § 444. Yet in order to prove the del)t contained in the bill, it 
 is not necessary tliat the dercnder should admit that value for it 
 was i)aid to liim. No doubt if the acceptor, when sued by the 
 drawer, (jualiiies liis admission oi" having signed the bill by stating 
 that he did so without value, or for the drawer's accommodation, 
 his nath disproves the alleged del)t. But if the bill is in the hands 
 of an onerous indorsee, such a (pialification will not avail the ac- 
 ceptor, tor his subscription was adhibited for the purpose of enabling 
 his friend to raise money on the bill as a docunjent of debt; and 
 by subscribing it he undertook the obligations of an acceptor in all 
 (luestions with third parties. Accordingly, where an acceptor stated 
 this defence to an action at the instance of an onerous indorsee of 
 the drawer, the Court decerned against him on the admission (c). 
 So where one of two acceptors of a bill, when sued by the drawer's 
 representative, admitted in his oath on reference that he had ac- 
 cepted, adding that he did so as cautioner for the other acceptor, 
 the Court, in two separate cases, held that his oath proved the 
 debt (d). In another case a similar decision was pronounced, the 
 fact that payments had been made to the co-acceptor, for whose 
 benefit the bill had l)ccn granted, being proved by markings in his 
 handwriting on the bill (e). If, however, the defender, besides 
 stating that he signed merely as cautioner for another person, de- 
 pones that value was not given to that person, his oath will nega- 
 tive the alleged debt ; just as the oath of an accei)tor in the ordi- 
 nary case, who denies that he received value, will not prove his 
 liability (/). Yet where a party, one of the acceptors of a bill, 
 being sued by the drawer's executors, deponed that he had signed 
 
 (i) Fraser v. Fraser, 27tli June 1809, F. C. (c) Philip v. Milno, 1800, M., 
 
 " Bills," Appx. No. 9. (d) M'Neill i-. Blair, 1825, 3 S., 459— Laidlaw v. Hamil- 
 
 ton, 1826, 4 S., 636. Lord Pitmilly has well observed in the former of these cases — 
 " The import of the oath is that value was given, not to Blair the deponent, but to 
 Jeffrey, and that Blair on that consideration became bound for the debt. This is an 
 onerous consideration so far as regards the creditors, who on the faith of it allowed 
 Jefl'rey to retain the money. It is of no consequence, as to the constitution of an obli- 
 gation, whether value is received by a man himself or by his friend.'' This case was 
 comiiromised on a threatened appeal ; see per Lord Craigie in Laidlaw c. Hamilton. 
 
 (e) Wilson v. Strang, 1830, 8 S., 625. (/) Compare the cases in the four 
 
 l>receding notes with Christie c. Henderson, 1833, 11 S., 744, commented on by Lord 
 IVlackenzie in Drummond «-. Crichton, 1848, 10 D., 340 ; and in Darnley i'. Kirkwood, 
 7 D., 599 ; and per curiam in Bc\vd v. Fraser, supra.
 
 312 SEXENNIAL PRESCRIPTION. § 444- 
 
 tbe bill, that it was a renewal of a runner bill to wliieli lie liad been 
 a party as cautioner for a co-accex)tor, and that payment of that 
 bill bad not been claimed from bim ; and wberc be was not asked 
 wbetber tlie otber acceptor of tbe original bill bad got value, — tbe 
 Court beld tbat bis oatli proved tbe debt in tbe second bill ; because 
 by means of it be bad got tbe old bill to wbicli be bad been a party 
 taken out of tbe way, and in tbis manner bad got value for bis ac- 
 ceptance {g). 
 
 § 445. It bas been beld tbat tbe debt is not proved by tbe 
 grantor of tbe bill admitting bis subscription, l)ut stating tbat be 
 was under sequestration at tbe time, tbat tbe object of tbe bill w^as 
 to give an undue preference to a particular creditor, and tbat tbere- 
 fore tbe bill was struck at by tbe Bankrupt Act (Ji) — or admitting 
 subscription, but stating tbat tbe bill was granted for an illegal 
 purpose (/). In auotber case tbe Court beld tbat it was extrinsic 
 in an oatb on reference to state tbat tbe bill bad been granted for 
 tbe price of smuggled goods, and tbat tbe defender beld bimself 
 not liable, as be bad been a loser by tbe transaction (Ji). But tbis 
 decision may be questioned. A mere statement tbat tbe wine for 
 wbicb a bill bad been granted bad turned out useless, was beld not 
 to prevent tbe granter's admission from proving tbe debt (I). 
 
 § 446. II. — Under tbe exceptional provision (§ 39) of tbe statute, 
 tbe creditors in prescribed bills may, at any time after tbe expiry 
 of tbe six years, prove tbe debts contained in tbe bills, " and tbat 
 tbe same are resting-oioing by tbe oatbs or writs of tbe debtor." 
 Tbe last part of tbe provision (as already observed) is founded on 
 tbe presumption tbat any debt wbicb may originally bave been con- 
 tained in tbe bill was discharged before tbe six years expired ; and 
 it bas raised tbat presumption into a strict statutory rule, tbat after 
 tbe lapse of tbe prescriptive period, tbe creditor, in order to recover 
 bis debt, must prove not only its constitution, but also its subsist- 
 ence, by bis debtor's writ or oatb on reference. 
 
 § 447. Accordingly, tbe statutory requirement will not be met 
 by tbe debtor's writ dated during tbe currency of tbe six years, 
 altbougb only a few days before tbeir expiry ; for tbe discbarge 
 may bave taken place, and tbe statute assumes tbat it did take 
 
 {g) Boyd v. Eraser, 1853, 15 D., 342. (A) Clarkson's Tr. v. Gibson, bth June 
 
 1820, F. C. (i) Campbell v. Scotland, 1778, M., 9530. [k) M'Neill v. 
 
 M'Kissock, 28th February 1805, F. C. " The Court were of opinion that the quality 
 resolved into a ground of challenge, which required to be supported by a proof." 
 (/) Robertson v. Clarkson, 1784, M., 13,244.
 
 § 448. SEXENNIAL PRESCRIPTION. 313 
 
 place, on some day before the wliolc six years elapsed ('/')•' Even 
 a writ dated the hist day of the statutory term, without counting 
 the days of grace, wliere these are alhjwed, lias been held insuffi- 
 cient (n). But the Court have given effect t(j a writ dated the last 
 day of the prescriptive term (o). As such a writ is in a very high 
 degree inconsistent with the idea of payment before tlie -whole 
 period expired ; and as its object probably was to exclude the sta- 
 tutory rule by voluntary acknowledgment, granted while the bill 
 could still 1)0 enforced ; there is good ground, both in reason and 
 eijuity, for giving effect to a writ so dated. Nor is this view ex- 
 cluded by the terms of the statute, which does not specify a date 
 for the writ by which the subsistence of the debt maybe proved (p). 
 § 448. Whenever the debtor's writ, if dated after the prescrip- 
 tive period, has shown that the debt was resting-owing at that date, 
 the Court have sustained it as proof of resting-owing as at the date 
 of the action; holding that it threw on the debtor the burden of 
 proving payment (v). In general this is the proper view. It will 
 be observed, however, that the statute re(iuires proof that the debt 
 is resting-owing, not that it was so at some date after the sexennial 
 period had elapsed. In principle, therefore, it seems to lie with the 
 Court to determine whether, looking to the character of the writ. 
 
 (to) Biichan v. Robertson Barclay, 1787, M., 11,128; Hailes, 1017, S. C— Russell 
 V. Farie, Bell's Oct. Ca., 125; M., 11,130, S. C— Arbuthnot v. Douglas, 1795, M., 
 11,133 — Horsburgh v. Bethune, 13th February 1811, F. C— Ferguson v. Betliune, 7th 
 March 1811, F. C. {«) Russell v. Farie, supra— Scott v. Gray, 1784, M., 11,126 
 
 —Allan V. Ormistou, 1817, Hume D., 477—1 Bell's Com., B9o— Supra, I 440. 
 
 (o) Lindsay v. MolVat, r.)th May 1797, M., 11,137. The Court were unanimously of 
 opinion that the prescription was barred by the debtor having subscribed a certain in- 
 ventory the very day before the prescription had run ; as that circumstance aflorded 
 most satisfactory evidence that the bill had not been paid within the six years. But 
 the opinions of seven judges " attributed the same efiect to an acknowledgment of 
 resting-owing made at any time witliin the six years." " To give no effect to an ac- 
 knowledgment of resting-owing within the six years, iu any case where there is a 
 possibility of tlie bill being paid before their completion, would be to introduce au in- 
 definite and arbitrary course of prescription, unwarranted by the statute ; the length of 
 which would depend entirely on tlie time which was to run between tlie date of the 
 acknowledgment and the expiration of the six years, and which might be only a year, 
 a month, a week, or a day, according to circumstances." This view (from which other 
 seven judges dissented) is altogether inconsistent with the statutory rule, as explained 
 in tlie text, and construed in many decisions. (jo) This view is supported by 
 
 the authority of Professor Bell, Com., ut supra. (r) See e.g., "Wood v. Howden, 
 
 1843, 5 D., 507— Watson i-. Hunter & Co., 1841, 3 D., 583— Stevenson v. Kyle, 1850, 
 12 D., C73— Macaudrew v. Hunter, 1851, 13 D., 1111. 
 
 7 M-Gregor v. M'Gregor, 18C0, 22 D., 1204.
 
 314 SEXENNIAL PRESCRIPTION. § 448- 
 
 its date as coiupartHl with the dates of the bill and action respec- 
 tively, and the whole attendant circumstances, the wi'it proves the 
 debt to be still duo, or (what is the same thing practically) whether 
 it I'Ajs on the debtor the burden of proving payment or discharge. 
 A memorandum which would be sufficient if granted shortly be- 
 fore the action was raised, might be inadequate if twenty years of 
 silence and moo-a had intervened between its date and the date of 
 the suit. 
 
 § 449. It is not necessary that the debtor's writ should be either 
 probative or lioh)graph (s) ; and, if holograph, it will be effectual 
 although it should not be signed (t). A writ which is brought 
 home to the debtor will suffice, provided it can be shown by either 
 intrinsic or extrinsic proof to apply to the bill in issue ; an express 
 reference thereto not being essential {u). If it can fairly be re- 
 ferred to the bill in issue, the burden of showing that it applies to 
 some other bill falls upon the defender (x).^ 
 
 § 450. Pa}Tiients of interest and partial payments of principal 
 after the six years have expired, if proved under the hand of the 
 debtor, mil prove resting-owing (y). But payments within the 
 statutory term are of no avail, as the debt may have been extin- 
 guished before the whole term expired (z). Yet a payment after 
 the six years has been held sufficient, although it was for interest 
 
 (s) Macandrew v. Hunter, 1851, 13 D., 1111— Hyslop v. Howden, 1843, 5 D., 507— 
 Black V. Stand's Crs., 1823, 2 S., 118. {() Watson v. Hunter & Co., 1841, 3 
 
 D., 583 — Hyslop v. Howden, supra, per L. Fullerton — Donaldson v. Murray, 1766, M., 
 11,110 — 1 Bell's Com., 333. {v) Watson v. Hunter, siqrra — Hyslop v. Howden, 
 
 1843, 5 D., 507 — Bell's Com., supra. (x) Cases in preceding note. 
 
 (y) Soutar's Reps. v. Soutar, 1827, 5 S., 876— M'Tavisli v. L. Saltoun, 1825, 3 S., 
 472— Black v. Shand's Crs., 1823, 2 S., 118— Scott v. Gray, 1784, M., 11,126. 
 
 (z) Horsburgh v. Betliune, 13th February 1811, F. C— Black v. Shand's Crs., supra 
 —1 Bell's Com., 333. 
 
 8 Johnston v. Scott, 1860, 22 D., 393. It is sufficient if the writ admits a debt due 
 under the bill or bills, and it is not essential that it should establish the precise balance 
 due at its date. So where, after the years of prescription, a debtor, in answer to a de- 
 mand for a balance on bills, wrote that the creditor's whole claim had been paid except 
 £93 ; and that of that balance £50 had been paid by another obligant, the Court held 
 that the writ instructed that at its date £43 was due, and directed argument and 
 inquiry as to whether more was then due, and as to the amount due at the date of the 
 action ; M'Gregor v. M'Gregor, 1860, 22 D., 1264. But where a creditor in prescribed 
 bills relied on letters written by the debtor after the period of prescription, admitting 
 generally the existence of debts due on bills, the proof by writ was held insufficient ; 
 because the admissions could not lie connected witli the bills sued for ; Blair v. Horn, 
 1859. 21 D.. 1004.
 
 §451. SEXENNIAL PllESCHIPTION. 315 
 
 running only tu the end ui" that time (a). Nu jjaymcnt ol" interest 
 or principal, however, will avail, where it is only vouched by the 
 creditor's writ or by markings in his hand upon the bill (h). Tn 
 one case a receipt for interest, being iu the handwriting oi' the cre- 
 ditor, but found in the debtor's repositories, was held to be equiva- 
 lent to the debtor's writ, and to prove resting-owing (c). But with 
 great deference to the authority of the very learned judges who de- 
 cided that case, it is conceived that such a document is not the ^vrit 
 of the debtor proving the debt to subsist. Quomodo constat that it 
 was not sent to the dol)tor spe numerandae peciiniae , or for the pur- 
 pose of obtaining a written answer implying an admission of the 
 debt ; which answer the debtor refused ? It can only be construed 
 as the debtor's writ through the medium of an inference, Avhich, 
 however probable and relevant in a proof at large, is humldy 
 thought not to accord with the strict terms of the statute. It may 
 also be observed that the view which the Court took on this point 
 was not essential to the decision of the case ; as there was a IkjIo- 
 graph letter of the debtor sufficient to prove resting-owing. 
 
 § 451. The debtor, however, will be bound by documents in 
 the handwriting of a person having authority to bind him ; because 
 quifacit'per aliumfacit per se. Accordingly, entries of payment of 
 interest in his books, but in the handwriting of his book-keeper, 
 were field sufficient ((/) ; and markings of interest on the back of a 
 bill, being in the handwriting of the debtor's agent or factor, re- 
 ceived the same effect, on account of his having special authority 
 to bind his constituents, who were a set of trustees (e). These cases 
 stand contrasted with a previous decision (/), where markings by 
 the debtor's factor, who had no such autliority, were held insuffi- 
 cient {g).^ 
 
 (o) M'Tavish v. L. Saltoun, 1825, 3 S., 472. (b) M'Indoe v. Frame, 1824. 
 
 o S., 295 — Fergiisou v. Butlnme, 7tli March 1811, F.C.— Bell's Com., supra. 
 
 (c) Hyslop i'. Howdeii, 1843, 5 D., 507. (d) Black v. Shand's Crs., 1823, 
 
 2 S., 118. (e) Campbell r. Ballantyne, 1839, 1 D., 1061. (/) Fer- 
 
 guson V. Betliune, 7tli March 1811, F.C. iff) See on this subject the chapter 
 
 (lu admissions by a factor or trustee. 
 
 ^ Whether a party has authority to sign for another, so that his writ shall bo the 
 writ of the other, is a question depending on the circumstances and proof in each case. 
 In <^cueral the writ of a factor or law agent is not the writ of liis constituent ; but if a 
 jiarty authorises another to act for him in reference to a particular piece of business, 
 with his full powers, in such a case the writ of the agent will be held the writ of the 
 purty ; M'Gregor i-. M'Gregor, 1860, 22 D., 1204.
 
 316 SEXENNIAL PRESCRIPTIOX. § 452- 
 
 § 452. Wlion the creditor in a bill lias obtained decree in ab- 
 sence against the debtor, on an action raised after the six years 
 have elapsed, either the debtor or his other creditors may open up 
 the decree ; which, although proceeding as on confession, is not 
 equivalent to the debtor's writ or oath (A). Nor is such a decree, 
 when passing on a summons which contains a reference to the 
 debtor's oath (according to an obsolete practice), effectual as one 
 which has proceeded on the debtor's failure to appear and depone 
 in a proper reference to oath {%). But a decree in absence obtained 
 after the six j^ears will stand until set aside in proper form Qi). 
 Where the granter of a prescribed bill presented a petition for se- 
 questration signed by himself and by the creditor in the l)ill, the 
 Court held that the resting-owing was not proved as against the 
 other creditors by the debtor's subscription of the petition (?). And 
 the circumstance of the creditor in a lull having attended a meeting 
 of the debtor's creditors after the six years had run, and of his 
 name as a creditor having been entered in the minutes without ob- 
 jection, does not prove that his debt is resting-owing ; for the credi- 
 tors are held not to be thereby barred from investigating the merits 
 of their mutual claims (m). Such cases are essentially different 
 from those in which the proceedings, being adopted before the 
 prescriptive period has expired, are held to have kept the bill in 
 force (?i). 
 
 § 453. When the creditor, from not having proof by the debtor's 
 wi-it, is constrained to refer to his oath, nice (|uestions sometimes 
 arise as to Avhether the oath comes up to the statutory requirement 
 to pnjve resting-owing. On the one liand, the debtor cannot 
 shelter himself under a general denial of resting-owing ; but must 
 specify the grounds on which his denial rests ; and if these show 
 that the debt subsists, his general denial will not protect him from 
 decree (o). But, on the other hand, he will be assoilzied if he de- 
 pones to extinction of the debt in some habile mode, although he 
 cannot specify the date or other details connected with it ; for such 
 an oath cannot be held to prove resting-owing. 
 
 (A) M-NicoU-. M'Neill, 1821, 1 S., 175— Buclian v. Robertson Barclay, 1787, M., 
 11,128— Nicolsont;. M'Leod, 23d November 1810, F. C— See also Black v. Shand's 
 Crs., 1823, 2 S. (new ed.), 110 ; and see infra, \ 4G0. {i) Nicolson v. M'Leod, 
 
 supra. See on tlii.s the chapter on holding as confessed in reference to oath, infra. 
 
 {k) Black V. Shand's Crs., supra. (l) Lockhart v. Mitchell, 1849, 11 D., 
 
 1341. (m) Stuart v. Douglas, 1823, 2 S., 200 (new ed.). (m) See supra, 
 
 i 432 (o) 1 Bell's Com., 333— Tait, 238— A B, 1751, M., 12,475.
 
 § 45G. SEXENNIAL PRESCRIPTION. 317 
 
 §454. Acconliii^Iy, wlicre the de fender stated distinctly that 
 he li;iil [laid llic hill several years hefore, Liit (-(jnlil not state the time 
 or mode of ])aynient, restin^-owing was held not to be proved (j^). 
 And the Court to(jk the same view of an oath that the deponent 
 paid to a son of the original creditor, or to some one authorised by 
 him, althou<;h he could not state distinctly to whom or at ■what 
 time the payment had been made ; there being ground for holding 
 that the son had authority to receive payment, and the deposition 
 being candid (>•). It seems also that the defender will be assoilzied 
 if he depones that he paid the debt to a third person by the credi- 
 tor's order, although he does not depone that that person accounted 
 to the creditor (.s-). 
 
 § 455. But where the debtor deponed that wliile he w^as in 
 India payment had been made by a relation in this country, and 
 where he could not assign a satisfactory reason for liis knowledge 
 or belief of that fact, the Court lield that the oath proved resting- 
 owing (/). And the defender's general denial of resting-owing was 
 disregarded where the only fact to wliich he (leij(med in support of 
 it was, tliat he had been tokl by a co-acceptor that payment had 
 been made by him (x). So wdiere the defender, who w^as one of the 
 partners of a dissolved company, deponed that he had not paid, and 
 did not know that any other person had ; that, at the dissolution 
 of the company, one of the partners undertook to pay a composition 
 on their debts, including the bill in question ; hut that he did not 
 know that such payment had been made, and that no claim of re- 
 hef had been made on him by the partner referred to ; the Court 
 held that the oath established the subsistence of the debt (i/). 
 
 § 456. When the defender depones to discharge not by simple 
 payment, but by a transaction under a WTitten contract, decree, or 
 other document, and it depends on the terms of the writing whether 
 the debt is extinguished, the Court will decide upon the construc- 
 tion of the writing, and will not take the defender's opinion of it ; 
 
 (p) Fj-fe V. CarfVae, 1841, 4 D., 152. (r) Roy v. Thomson. 1830, 8 S., 810. 
 
 («) Moffat V. Moffat, 1737, Elch., "Qualified Oatii," No. 4; M., 13,214, S. C— Bett 
 V. Hardie, 1759, M., 13,217— Clerk v. Dallas, 1711. M., 13,213. (() Paul v. 
 
 Alison, 1841, 3 D., 874. See Mette v. Dalziel, 1830, 8 S., 387. (z) Black i-. 
 
 Black, 1838, l(i S., 1221. Sec also per Lord Mackenzie in Daruley c. Kirkwood, 1845, 
 7 D., 59!t, comnicntin'r on Christie v. Henderson, 1833, 11 S., 744, in/ru. But see con- 
 tra, Mackay v. Ure, 1840, 11 U., 982. (>/) Stewart v. Stewart, 1823, 2 S., 558. 
 See also Christie v. Henderson, supra, and as noticed by Lord Mackenzie in Drunimond 
 V. Crichton, 1848, 10 D.. 340, aud;>er curiam in Boyd r. Fraser. 1853, 1.5 D., 342.
 
 318 SEXENNIAL PKESCKIPTION. § ^5(\- 
 
 for the question is one of law, not of fact (z). Accordingi}^, where 
 the defender deponed that the pursuer had acceded to a composition 
 contract, under which the composition on the debt amounted to a 
 certain sum, which the defender had consigned, the Court would 
 not give effect to this deposition, but required production of the con- 
 tract, the legal construction and effect of which were involved in 
 the oath («). And where the defender deponed that the debt had 
 been extinguished by an assignment which he had made under the 
 law of England of all his effects to his creditors, whereby all his 
 debts had been cleared off, it was held that the statement of the 
 nature and effect of that transaction could not be taken from the 
 defender, on whom the l)urden therefore lay of establishing his al- 
 leged discharge, by production of the deed or by other competent 
 proof (h). 
 
 § 457. But the defender's oath will not prove resting-omng, 
 where he states that the debt was extinguished by a separate trans- 
 action, which does not depend on the construction of a writing ; 
 e.g., where he states that the pursuer accepted goods in satisfaction 
 of the debt (c) ; or agreed to discharge it, and promised to give up 
 or cancel the bill whenever he had an opportunity (d) ; or where 
 the defender depones that he paid a sum which had been fixed be- 
 tween him and the pursuer in a compromise of the claim (e). 
 
 § 458. In all such cases, however, the Court will determine 
 whether the transaction as deponed to imports a discharge of the 
 debt. This is well illustrated by cases of alleged compensation. 
 If the debtor depones that the pursuer agreed that the debt sued 
 for should be held extinguished by the counter-claim, resting-owing 
 is not proved ; because it matters not what consideration induced 
 the creditor to discharge the debt in the bill if he really did so (/). 
 
 (z) This point is fully discussed in treating of the construction of oaths on reference. 
 
 {a) Brown v. M'Intyre, 1828, 6 S., 1022. See also Blair v. Balfour, 1748, M., 
 13.217. {b) Stevenson v. Stevenson, 1838, 16 S., 1088, per Lord Ordinary 
 
 FuUerton, whoso judgment was acquiesced in hy the parties, and approved of in tlie 
 Inner House. (c) See Johnston's Assignee, 1687, M., 13,241. 
 
 {(J) Grant v. Grant's Crs., 1793, M., 13,221— L. Forrester v. L. Elphingstone, 1742, 
 M., 13,215, as explained in Elch., "Qualified Oaths," No. 6. (e) See Napier 
 
 V. Graham, 1829, 1 De. and And., 218. (/) The view stated in the text seems 
 
 to be properly deducible from the following cases, as contrasted with those in the two 
 next notes; Grant t'. Grant's Crs., 1793, M., 13,221— Irvine «. Dickson, 1733, Elch., 
 "Qualified Oath," No. 1— Clark v. Dallas, 1711, M., 13,213— Maitland v. Baillie, 1707, 
 M., 13,212— Forbes v. Craigie's Crs., 1711, M., ib. ; 12,404, S. C— L. Forrester v. L. 
 Elphingstone, supra, («/)- Hepburn v. Hepburn, 1806, Hume D., 417— Johnston's As- 
 signee, 1687, M., 13,241— Maxwell v. Herries, 1712, M., 11.218, a^ ./?wm— Lauder v. 
 M'Gil)lKm. 1727. M.. 13,206.
 
 § 4G(). SEXENNIAL PRESCRIPTION. 310 
 
 lint wlioro tlio defender's (l(iii;il of icstin^-owiiig stands on a {Avu 
 of simple compensation, the Courl ImM that the oath proves the 
 subsistence of the orij?iii;d deht. and they require the debtor to 
 prove his counter-claim (<j). The reason is that compensation does 
 not operate ipso Jure as a dischar<;(' ; but it is an oijuitable ground 
 for resisting ])ayment of a del)t admitted orinovod to be still undis- 
 charged ; and tlio Court, not the debtor, has to decide whetjier the 
 counter-claim is good. 
 
 The case, however, will not come A\ithin the former branch of 
 this rule, if the defender states merely that it M'as his own under- 
 standing or intention that the debts should be nmtnallyexting-uished; 
 for the pursuer's consent is essential to such a transaction (h). The 
 subject of this and the preceding paragraphs is considered fully in 
 treating of qualified oaths on reference. Some cases illustrative of 
 the same doctrines will also bo found in the sections on the trien- 
 nial prescription. 
 
 III. Admissions by Co-acceptors. 
 
 § 459. Each acceptor's admission is proof only against himself, 
 and not against his co-acceptors {%). And where a bill bearing the 
 signature of a company firm was referred to the oaths of the part- 
 ners on the company being dissolved, the Court held that one of 
 them who had deponed negative wms entitled to absohHtor, and was 
 not bound to await the result of the action as against the other, 
 whose oath contained certain admissions (/.■). 
 
 § 460. If each of the co-acceptors both admits the constitution 
 of the debt and admits that he himself did not pay it, resting-owing 
 is held to be proved as against them all (/). And in one case where 
 
 {g) Simpson, 1728, M., 13,240 — Johnston's Assignee, supra — Bortlnvick v. Rarasay, 
 1697, M., 4981— Sinclair v. Sinclair, 1703, M., 13,205— Fincham v. Muirliead, 1707, 4 
 B. Sup., 005- Minnie's Crs. v. Broomfield, 173G, Elch., " Qualified Oath," No. 3— Mit- 
 chell V. M'Kinlay, 1761, M., 13,241— Runkiue v. Adair, 1799, M., 13,245— Stevenson v. 
 Caniphell. 1803, Hume D., 415— Millar v. Baird, 1819. ih., 480— Macdonald v. Craw- 
 ford, 1834, 12 S., 533— Sec also Williamson v. Peacock, 11th December 1810. F. C— 
 Gilchrist v. Murray, 1675. M., 13,210. (/<) Hunter v. L. Kinnaird's Tr.. 1830, 
 
 9 S., 154. (e) Allan v. Ormiston, 1817, Hume D., 477— Houston v. Yuill, 1822. 
 
 1 S.. 449— M'Neil v. Blair, 1823, 2 S., 174— JMndoe v. Frame, 1824, 3 S.. 295. 
 
 {k) Easton v. Johnston, 1831, 9 S., 440. {I) Laidlaw v. Hamilton, 1826. 4 
 
 S., 636 — Wilson v. Strang, 1830, 8 S., 625. In tliis way the oath cif each acceptor goes 
 to prove non-payment as against the others. But (hat would not prevent any of them 
 from being assoilzied, if he dciwncd that he know a co-acceptor had paid. Tlie question
 
 320 SEXENNIAL PEESCRIPTION. § 4G0- 
 
 two out of four acceptors admitted respectively that they had not 
 paid, and could not say whether any of the other acceptors had, the 
 Court, by a narrow majority, held resting-owing to be proved (m). 
 This decision, however, is humbly thought to be questionable, since 
 the proof of resting-OAving was incomplete so long as there was not 
 evidence that none of the acceptors had paid. The statute, proceed- 
 ing on the presumption of paj^ment by some one or more of the 
 debtors, seems to require resting-owing to be proved by the writs or 
 oaths of them all ; Avhcreas the decision referred to implies that be- 
 cause payment by the absent acceptors is not proved, therefore non- 
 payment must be presumed. Such an inference would be absurd 
 in the case of one of a large number of acceptors admitting that he 
 had not paid ; and it is thought that there is no room for a distinc- 
 tion founded on the number of acceptors admitting non-payment 
 by themselves, as compared with those regarding whose payment, 
 or the reverse, there is no proof. Where action is raised against all 
 the co-acceptors, and some of them allow decree in absence to go 
 out against them, it is held that the others resisting decree are 
 liable, if they admit that they did not pay, and do not depone that 
 any other person did (n). In such a case the fact of non-payment 
 by the absent acceptors is held to be sufficiently established by their 
 non-resistance, joined with the want of any contradictory statement 
 by the parties appearing. 
 
 lA^. Admissions by the Debtor's Representative. 
 
 § 461. If the heir of the debtor is sued for payment after pre- 
 scription has run on the bill, he is entitled in terms of the statute 
 to maintain that the creditor shall not succeed, unless he prove the 
 constitution and subsistence of the debt by the original debtor's 
 writ or by the heir's writ or oath. With regard to his oath the heir 
 is in a much more favourable position than the original debtor; for 
 while the latter, if he admits that the debt was incurred, must state 
 relevant grounds for maintaining that it is not resting-owing, the 
 heir (who very often knows nothing about his predecessor's debts) 
 
 would then remain, whether the oath of one acceptor deponing that another had paid 
 would free them all. See per L. Gillies in Christie v. Henderson, infra. 
 
 {m) Christie v. Henderson, 1833, 11 S., 744. See this case commented on in Darn- 
 ley V. Kirkwood, 1845, 7 D., 599— Drummond v. Crichton, 1848, 10 D., 340— Boyd v. 
 Fraser, 1853, 15 D., 342. Compare also Black v. Black, 1838, 16 S., 1220 ; supra. § 
 455, (7). (n) Boyd v. Fraser, supra— W^eil v. Blair, 1825, 3 S., 459. 
 
 f 
 
 I
 
 § 463. SEXENNIAL PKESCIUPTION. 321 
 
 is not required to iiiako any positive allegation oi' payment or dis- 
 charge ; and the enMlitor will Fail, unless the heir's oath imports a 
 distinet admission of re.sting-owing. Aecordingly, wliere the heir 
 of the aceeptor of a hill, heing sued after the preseriptive period, 
 admitted his ancestor's acceptance, hut could not state whether the 
 ancestor had paid the deht or not, the Court held that resting-owing 
 was not proved (o). And where the representative of an acceptor 
 who had died within the years of prescription had before their ex- 
 piry made a payment to account of the hill; and where, being sued 
 for the balance after the prescriptive period had expired, he denied 
 all knowledge of the bill and of the debt for which it had been 
 granted, but admitted the payment to account, of which he gave no 
 satisfactory exjdanation ; the Court sustained the plea of prescrip- 
 tion, and held that resting-owing had to be proved by the heir's 
 oath (p). So the heir of an acceptor was assoilzied, where he de- 
 poned that he was not aware of the existence of the bill till after 
 the lapse of the prescriptive period (q). 
 
 § 462. If the heir, not speaking from personal knowledge, 
 merely admits that his opinion or inference from the circumstances 
 is that the debt was constituted and is unpaid, the Court will not 
 hold these facts to be proved (?•). But if he swears that he has no 
 doubt upon the point, they wdll probably sustain the pursuer's 
 claim, since the defender, on a formal appeal to his conscience, 
 could not deny its justice (s). 
 
 § 463. Prescription is held to be overcome by payments of in- 
 terest (t), or payments to account of the principal (u) of the bill, if 
 made by the heir beyond the six years, and proved by his ^vrit (x). 
 Nor will he escape from this consequence by merely stating that he 
 made the payment under a mistaken impression of his liability (i/) ; 
 although that will, of course, be a relevant circumstance in a proof 
 by him that the principal del it liad been paid. 
 
 The competency and etlect of admissions by tutors, trustees, 
 and other administrators, and of reference to their oaths, are con- 
 sidered in treating of admissions and oaths on reference. 
 
 (o) Stirling v. Henderson, lltli March 1817, F. C. {p) Damley v. Kirk- 
 
 wood, 1845, 7 D., 695. See also Frank c Forster, 1842, 4 D., 1515. 
 
 {q) Houston v. Yuill, 1825, 4 S., 24. (r) See Brown v. Crawford. 1741, M., 
 
 9418, Kilkerran's report. («) See Dalziel v. Lindores, 1748, M., 10,994; Hailes, 
 
 984, S. C. {f) M'Tavish v. Lady Saltoun, 1826. 3 S., 472. 
 
 (jt) Scott V. Gray, 1784, M., 11,126. (:r) Supra, I 450. [y) M'Tavish 
 
 i*. Lady Saltoun, mipra — Scott v. Gray, supra. 
 
 VOL. I. V
 
 322 QUINQUENNIAL rRESCRIPTION. § 464- 
 
 CHAPTEK IV. — OF THE QUINQUENNIAL PRESCRIPTION OF MINISTERS' 
 STIPENDS, AND VERBAL BARGAINS CONCERNING MOVEABLES, &C. 
 
 § 404. The Act 1669, c. 9, enacts, " that ministers' stipends and 
 mnltures, not pursued for within five years after the same are due, 
 and likeways mails and duties of tenants not being pursued within 
 five years after the tenant shall remove from the lands for which 
 the mails and duties are craved, shall prescribe in all time coming, 
 except the saids ministers' stipends, multures, mails and duties, 
 shall be offered to be proven to be due and resting-owing, by the 
 defenders their oaths, or by a special writ under their hands, ac- 
 knowledging what is resting-owing: And that all bargains concern- 
 ing moveables or sums of money, probable by witnesses, shall only 
 be probable by writ or oath of party, if the same be not pursued for 
 within five years after the making of the bargain." 
 
 I. Scope and Effect of this Pi-escription. 
 
 § 465. The prescriptions which this statute introduced are ana- 
 logous to the sexennial and triennial proscriptions. The Act deals 
 wdth two different groups of cases, viz., 1st, ministers' stipends, 
 multures, and mails and duties, the first of which always stand 
 upon writing, the others being often, but not always, so consti- 
 tuted : — and 2d, verbal bargains concerning moveables or sums of 
 money. It makes the preservation of the ordinary mode of proof 
 of these several claims conditional on the creditor raising his action 
 within five years ; and in the event of his failing to do so, it limits 
 his proof to the debtor's writ or oath, and fixes on him the burden 
 of proving the subsistence, as well as the constitution, of the obli- 
 gation. 
 
 § 466. The Act applies to " stipends" although the charge was 
 vacant during the time for which they were payable (a). It was 
 held not to affect teind duties in the hands of the titular (&); or the 
 right of a patron who had paid ann to the minister's representatives, 
 and expended vacant stipend on pious objects, to recover from the 
 other heritors their proportions of such payments (c). 
 
 (a) Gloug V. Macintosh, 1753, M., 11,063 ; Elch., " Stipend," No. 8, S. C— Ersk., 
 3, 7, 20. (b) Hamilton v. Hemes, 1083, M., 11,061. (c) Graham v. 
 
 Pate, 1799, M., 11,063. The payments had been made by the tutor of the patron, who 
 was insane ; and the action of relief was at the instance of the patron's representative.
 
 § 469. QUINQUENNIAL PRESCRIPTION. o23 
 
 § 467. " Mails and duties" prescriljo whether the lease is writ- 
 ten or verbal {d), and whether it is of a rural or an urban tene- 
 ment (e). Tlio rule applies where the whole of an estate is let on 
 lease (/); l)ut nut where the mails and duties of a property arc 
 fanned out; as tlic Act only contemplates rents payable l)y tenants 
 in the natural i)0.ssession (f/). One who liml not possessed under 
 lease from the proprietor, l)ut by intrusion under a i)retended ri;^ht, 
 is not entitled to the benefit of the Act (A). And where a iiar, 
 holding a lease from the liferenter, had after the lessor's death en- 
 tered into possession as proi)rietor, tlie Court refused to ai)ply the 
 statutory rule in an action against him for arrears raised more than 
 five years after the lease had expired {i). It was pleaded that he 
 had not removed from the land ; but the chief ratio decidendi was, 
 that he was not truly a tenant in the sense of the Act. Where 
 the partners of a company for manufacturing paper were lessees of 
 a certain paper mill, and one of them procured an assignation from 
 the others of their interests in the lease, machinery, and trading 
 stock, on his obligation to relieve them of the rent, and to pay 
 them certain shares of the profits ; in an action by one of these 
 partners against the heir of the assignee for arrears of the pursuer's 
 share of profits, the Court held that they fell under the quinquen- 
 nial prescription (A-). But the decision may be questioned. 
 
 § 468. This prescription does not afi"ect arrears due by tenants 
 continuing in possession ; because its currency only commences 
 from the tenant's removal (/). It was held not to apply where a 
 tenant remaining in possession was sued by a former proprietor for 
 arrears due five years before the estate had been sold {m). It holds, 
 however, where the tenant " ran away out of the country," as well 
 as when he removed in the ordinary way (w). 
 
 The statute may be pleaded by the tenant's cautioner (o). 
 
 § 469. The prescription of " all bargains concerning moveables 
 or sums of money proveable by luitnesses" has evidently been de- 
 
 Tlie plea of prescription was resisted on the ground of the patron's insanity ; but the 
 ratio decidendi was, that tlio tutor in making the payments in question was to be consi- 
 dered as negotiorum gestor for the heritors. {d) Nisbet i'. Baikie. 1729. M., 
 11,059— Lyle v. Crichton, 1694, 4 B. Sup.. 153. {e) Boyes v. Henderson. 1823, 
 2 S., 190. The subject here was a brewery. (/) Fairholm v. Livingston, 1725, 
 M., 11,058. Ou this point correct Ersk., 3, 7, 28, by Ivory's Note, 365, to ib. 
 
 {g) Nisbet i'. Baikie, supra — Bankt., 2, 12, 29. (A) Robertson v. Macintosh, 
 
 1688, M., 11,053. (0 Murray v. Trotter, 1709, M., 11,054. (A-) Daes v. 
 
 Scougall, 1710, M., 11,056. {I) Act quoted supra, § 464. [m) Strahorn 
 
 V. Cunningham, 1739, M., 11.059. (h) ]\racintosh v. Baillie, 1753, Elch. Notes, 
 
 " Prescription," No. 35. (o) DulT v Innes, 1771, M.. 11.0".9. 
 
 X '1
 
 324 QUINQUENNIAL PRESCRIPTION. § 469- 
 
 signed to cover those independent mercantile transactions regarding 
 moveables, -which, from not being parts of current accounts, were 
 not protected by the triennial prescription. It includes, for example, 
 a verbal contract of sale of a cow (p), or a lot of sheep (r), a ver- 
 bal bargain to take the stocking on a farm at a valuation (s), and 
 a verbal bargain to deliver grain (f) ; in fact, " all sales, locations, 
 and other consensual contracts concerning moveables, to the con- 
 stitution of which writing is not necessary" (ic). But it does not 
 embrace a claim for the value of goods unwarrantably carried off 
 without an agreement (x) ; or a claim for the balance of the price 
 of goods which had been consigned with the defender in security 
 of money advanced {y) ; or an action of accounting by a merchant 
 against a commission-agent to whom he had consigned goods (z). 
 And a verbal bargain made at the commencement of a nineteen 
 years' lease, regarding the mode of disposing of the dung at its ter- 
 mination, was held not to come under the statute, as no demand 
 could have been made on the contract till long after the expiry of 
 the five years (a). Again, where on the death of a farmer in 
 March 1827, his son succeeded to the lease and his daughters took 
 the moveables ; and where the seed' for crop 1827 was supplied 
 from crop 1826 which belonged to the daughters, and the spring 
 labour for 1827 was performed by their horses ; and where in June 
 1827 the son took the stock from his sisters under a written agree- 
 ment and valuation, in which nothing was said about the claim for 
 seed and labour ; and where the son having died in 1842, his estate 
 was sequestrated in 1848, without the sum in the written valuation 
 having been paid ; the Court held that a claim by the daughters 
 for the value of the seed and labour did not fall under the statutory 
 rule (b). 
 
 § 470. The statute was evidently not meant to apply to bar- 
 gains which are constituted by writing, and it has therefore re- 
 ceived that interpretation (c). But where the pursuer of an action 
 for the price of grain alleged to have been furnished more than five 
 
 (p) Notles V. Armstrong, 11th June 1813, F. C. (r) Ewart v. Murray, 1730, 
 
 M., 11,067— Moffat v. Moffat, 1737, M., 13,214. («) Lawson v. Milne, 1839, 1 
 
 D., 603. (0 Whyte v. Spence, 1653, M., 11,065— Soutliesk v. Reddy, 1682, M., 
 
 11^066 ; 12,326. (m) Ersk., 3, 7, 20. (x) Baillie v. Young, 1835, 13 S., 
 
 472. (y) Macfarlane v. Brown, 1827, 5 S., 205. (z) Mackinlay v. 
 
 Mackinlay, 1851, 14 D., 162. {a) Wilson v. Swan, 1805, Hume D., 817. 
 
 (5) Gairs v. Taylor, 1849, 11 D., 1244. (c) Southesk v. Reddy, 1682, M., 
 
 11,066; 12,326, S. C— Hunter v. Thom.son, 1843, 5 D., 1285. See also Wliyte v. 
 Spence, 1683, M., 11 ,065— Canierou v. Cameron, 1801, Hume D., 472.
 
 §473. QUINQUENNIAL I'KEaClUPTlON. 325 
 
 years before, founded on a \mtten contract between him and tlic 
 defender for a sale of the grain at a certain ]triee, and offered to 
 prove by witnesses that the grain had ])vvn dclivured, the Court re- 
 quired liim to prove delivery (being the essential condition of the 
 obligation) by the defender's writ or oath (d). 
 
 § 471. It is a condition of these prescriptions that the de])t has 
 not been " pursued" within the five years (e), A petition for se- 
 questration of rent past due will save it from prescribing (/) ; but 
 sequestration raised cnrrente termino, in order to secure rent not 
 yet exigible, will not have this effect (g). Where before the expiry 
 of the five years the landlord stated his claim for arrears as a set-off 
 against a claim by the tenant, the Court held that he had thereby 
 excluded the prescription, as if he had raised action to recover pay- 
 ment (h). But where a landlord in defence to an action by his 
 tenant pleaded compensation upon rent which had been due for five 
 years, the Court applied the statutory rule, because compensation 
 does not operate until it is pleaded (/). 
 
 § 472. The prescriptions introduced by this statute do not run 
 against minors during their minority (k). 
 
 II. Proving the Debt after it has incurred Prescription. 
 
 § 473. After the ministers' stipends, multures, and mails and 
 duties have prescribed, the creditor must prove that they are rest- 
 ing-owing by his debtor s writ or oath on reference (l). And the 
 princijjle holds here as well as in the sexeimial prescription, that 
 the defender is not obliged expressly to depone tliat he paid. As 
 the pursuer must prove resting-owing, the defender's general denial 
 of that fact ^^^ll protect him, provided it is founded on statements 
 which import non-subsistence ()n). Accordingly, where a tenant, 
 sued for prescribed rents, deponed that there had been two roups of 
 
 {(i) Southesk v. Reddy, supra. (e) Act quoted supra, jJ 464. As to the 
 
 meaning of the term " pursued " see supra, § 430, et seq., and infra, g 498. 
 
 (/) Hogg V. Low, 1826, 4 S., 702. {g) Cochrane v. Ferguson, 1830, 8 S., 
 
 324. Tlie petition for sequestration prayed for decree of payment when the rent should 
 become due. {h) Macdonakl v. Jackson, 1826, 5 S.. 28 — Nicolson t'. Maculister's 
 
 Tr., 1832, 10 S., 759. See also Sloano v. Birtwistk', 1827, 6 S., 742. 
 
 («■) Mackintosh v. Baillie, 1753, Elch., " Prescription," No. 35 — Maxwell v. Hcrries, 
 1712, M., 11,218; 2677, S. C— Dickson v. Macaulcy, 1681. M., 11,090. 
 
 (A) 16G9, c. 9, ad/mem. (/) Act quoted supra, \ 464. (»;i) Supra, 
 
 ? 453, rt seq.
 
 326 QUINQUENNIAL PKESCIUPTION. § 473- 
 
 liis crop and stocking, wliicli had been attended by a person on be- 
 half of the hxndlord, and with the proceeds of which he understood 
 that the rent had been paid, resting-owing was held not to be 
 proved (n). In this case, also, the Court refused to hold the prin- 
 cipal tenant liable for admissions made on oath by his cautioner (o). 
 
 § 474. Payment of interest, if made after the prescription has 
 run, and if instructed by the defender's writ, will prove resting- 
 owing ( 2^)- Bi-it payments of interest, and multo majus partial pay- 
 ments of the arrears, if made within the five years, do not satisfy 
 the requirement of the statute {r). Nor will any payment have this 
 effect unless it is admitted on record, or is proved by the writ of the 
 debtor or some one authorised to bind him (.s). 
 
 § 475. There is a considerable distinction in the terms of the 
 Act as to proving the debts referred to in the preceding paragraphs, 
 and pro\^ng verbal bargains, after the five years have run; for while 
 the former must be proved by the defender's writ or oath to be rest- 
 ing-owing, the enactment as to the latter is, that they shall only be 
 proveable by writ or oath of party, if they be not pursued for with- 
 in the statutory period. The Court, however, have construed this 
 provision to mean that Avhen a verbal bargain is not sued upon till 
 after it has incurred prescription, the pursuer must refer to the de- 
 fender's oath its subsistence as well as its constitution {t). It seems 
 to be an open question, whether the pursuer, having written proof of 
 the bargain, is bound to prove by the debtor's writ or oath that the 
 obligation therein is subsisting (?<)• Had it not been for the de- 
 cisions as to what the oath must embrace, there would have been 
 little difficulty in holding that the defender's writ proving merely 
 the constitution of the bargain is sufficient. But from the terms 
 " writ or oath" of party occurring in the same connection, it seems 
 (questionable to apply different rules as to the facts which they must 
 respectively prove (x). In this view it is still doubtful whether 
 
 (n) Cochraue v. Feryuson, 1831, 9 S., 501. See also Heddle v. Baikie, 1847, 9 D., 
 1254. (o) The cautioner was freed under the septennial limitation. 
 
 {p) See supra, § 450. (r) Nisbet v. Baikie, 1729, M., 11,059— swpra, § 450. 
 
 (s) Supra, \ 450, el seq. {t) Campbell v. Grierson, 1848, 10 D., 361— Whyte v. 
 
 Spence, 1683, M., 11,005- Nobles v. Armstrong, 11th June 1813, F. C. 
 
 (m) See per L. Justice-Clerk in Campbell v. Grierson, sw/jra. 
 
 {x) It will be observed that the term " writ " of party as used in the text is not 
 meant to include proper written constitution of the contract. Bargains which have 
 been reduced to writing are not "proveable by witnesses," and, as already observed, do 
 not come within the statutory rule. The Act, however, seems to provide for the case of 
 a verbal bargain being proved by the party's writings ex post facto; and the question is, 
 whether after the live years these must prove not only its constitution, but also its sub- 
 sistence.
 
 § 477. TRIENNIAL i'UESCltlPTION. 327 
 
 tlio statutory proof is completed by the defender's \\Tit adiiiiltiu^ 
 the bargain, but dated before tlie five years expired. 
 
 CHAPTER v.— OF THE TRIENNIAL PRESCRIPTION OF MERCHANT S 
 ACCOUNTS, &C. 
 
 § 470. This is tlie oldest, and probably the most important, of 
 the shorter prescriptions of Scotch law. It was introduced by the 
 Act 1579, c. 83 ; which statuted and ordained " that all actions of 
 debt for house mails, men's ordinars, sci-vants' fees, merchants' 
 compts, and other the like debts, that are not founded upon written 
 ol)ligationg, be pursued within three years, othermse the creditor 
 shall have no action, except he either prove by Avrit or by oath of 
 Ids party." These few words, which compose the whole of this 
 short and pithy statute, have given rise to many, and not very uni- 
 form, decisions, * 
 
 I. Scope and Effect of this Prescription. 
 
 § 477. In its principle and effect this prescription is similar to 
 the quinquennial and sexennial prescriptions, of which it was the 
 forerunner. It is designed for preventing debts which are usually 
 settled mthin a short time after they are incurred, from being 
 maintained and proved by loose and untrustworthy evidence, when 
 the means of either contradicting such proof of their constitution, 
 or of proving their discharge, may have been lost through lapse of 
 time. With this object the statute limits the competency of a 
 proof pi'out de jure to cases where action is raised within three 
 years after the debt has been incurred ; and if action is not raised 
 till after that period, it requires the creditor to prove his case by 
 the debtor's writ or oath. This prescription therefore does not pro- 
 ceed on any presumption of relinquishment ; for the debt may be 
 proved by the statutory evidence any time within the years of the 
 long negative prescription. It is founded on reasons of public po- 
 licy, proceeding on the presumption that, if the debts which it spe- 
 cifies have not been sued for witliin three years, they have cither 
 not been incurred, or have been discharged ; and it determines by
 
 328 TRIENNIAL PRESCRIPTION. § 477- 
 
 a peremptory rule the only kind of evidence by wliicli the contrary 
 may be proved. 
 
 § 478. The Act has been liberally interpreted in regard to the 
 debts to which it applies. This has necessarily arisen from its 
 containing not only a pretty ^dde enumeration, but adding " the 
 like debts," thereby lca\ang to the Court to extend its application 
 to analogous cases. The want of precision in this expression has 
 occasioned some conflict in the decisions, in consequence of different 
 judges being differently impressed as to the degree of similarity 
 between certain debts and those enumerated in the statute («).^ 
 
 §479. ^' House mc«7s " comprehend only the rents of subjects 
 properly urban. Arrears of rents of a farm (h), or of a minister's 
 glebe land (c), are not included under the term " the like debts." 
 Where the lease embraces both a house and land, the question 
 whether it comes under the statutory rule will depend on whether 
 the house is accessory to the land, as in ordinary farms ; or whether 
 the land is accessory to the house, as in country villas. 
 
 Each term's rent prescribes from the time when it falls due, and 
 without regard to whether the tenant continues in possession or 
 removes (cZ). 
 
 §480. '^ Men's ordinm^s " m.en,n entertainment furnished by a 
 tavern-keeper, or in a boarding-house (e). And "the like debts" 
 include arrears of aliment due under a contract (/).^ But claims 
 made by the mother of a bastard child against the father for arrears 
 of its aliment are not included ; because the act only contemplated 
 claims founded on contract, whereas the father's debt arises out of 
 natural obligation, and the mother's claim is for relief of sums which 
 
 («) See per liords Fullerton and Mackenzie in Blackadder v. Milne, 1851, 13 D., 
 820, and,^er eosd., in M'Kay v. Carmichael, 1851, 14 D., 207. {b) Ross v. 
 
 Fleming, 1627, M., 12, 735. (c) Minister of Kilbucko, 1628, M., 11,083. 
 
 (d) Cuming's Tr. v. Simpson, 1825, 3 S., 645— Ferguson v. Mair, 1737, M., 11,103 
 — Ersk., 3, 7, 17. (e) Forrest v. Carstair's Reps., 1715. M., 11,098; 9713, S. 
 
 C— Thomson v. L. Duncan, 1808, Hume D., 466— Eraser v. M'Keitcli, 1838, 16 S., 
 1045 — See also Balfour v. Landails, 1683, Hare, 216. (/) Hamilton v. Lady 
 
 Ormiston, 1716, M., 11,100— Lady Carnsfield v. D. Gordon, February 1714, there cited 
 — and Cuming v. Andrew, 1722, ib. — per curiam in Thomson v. Westwood, 1842, 4 D., 
 8S3— contra, Irving v. Maxwell, 1687, M., 11,092— Dick v. Gibson, there noted.2 
 
 1 A claim for a statutory assessment, such as poor-rates, cannot be met by the de- 
 fence of the triennial prescription ; Munro v. Graham, 1857, 20 D., 72. 
 
 2 Taylor v. Allardyco, 1858, 20 1)., 401.
 
 § 482. TRIENNIAL PRESCRIPTION. 329 
 
 slio advanced on his belialf (g).^ It seems also to liave hecn held 
 that tlie Act docs not end trace claims for payment of aliment fur- 
 nished to a minor, wliicli arc r.itlicr like advances by a. negotiorum 
 gesfo7- thiin entertainment furnished hy an innkeeper under a con- 
 tract (h). There is some doulit, however, as to what claims for 
 aliment fall under tlic statute (i). 
 
 § 481. When an alimentary debt is within the Act, each term's 
 payment prescribes from the time when it became payable {k). 
 And where the two first items iu a continuous account were for 
 board and lodging for a certain number of weeks at a specified rate, 
 and the rest was for furnishings (chiefly of provisions), the Court 
 would not treat the entries for board as part of the account, but 
 held that they incurred prescription independently {l). 
 
 § 482. " Servcmfs fees" and "the like debts" comprehend not 
 only the wages of an ordinary servant (w), but also the yearly sum 
 payable to an apprentice under his indenture (n), and the salaries 
 or other remuneration of persons employed in higher situations — 
 e.g., a factor (o), a chaml)erlain and grieve {p), and one who ac- 
 companied his employer in his travels abroad, kept his accounts, 
 and disbursed his money (r). And a claim for remuneration of 
 services rendered by the pursuer to the defender, on the footing of 
 his being remunerated, falls under tlic statute, although an express 
 contract of service be not averred {s). But the Act was held not to 
 include the arrears of salary due by heritors to their parochial 
 
 (ff) Thomson v. Westwood, 1842, 4 D., 833— Finlayson v. Gown, 7tli .July 1809, F. 
 C— M'Dowall V. M'Lurg, 1807, M., "Prescription," No. 6— Butcliart v. Ireland, 1839, 
 1 D.. 1128, per L. (Ordinary) Fullerton— Thorn v. Jardine, 1830, 14 S., 1004, per eund. 
 See also Arhuthnot v. Symon, 1834, 12 S., 590— Paterson v. Cochrane, 1758, M., 11,080 
 —contra, Forsyth v. Sinip.son, 1791, M., 11,081, Bell's Octavo Ca., 361.3 
 
 (A) Davidson v. Watson, 1740, Cr. and St., 288, reversing JI., 11,077— per L. (Ordi- 
 nary) Fullerton in Thorn v. Jardine, supra. But see opinions of judges in Thomson v. 
 AVestwood, supra — and contra, Galloway v. Galloway, 1799, M., 11,122. 
 
 (i) See cases in preceding notes. (k) Ersk., 3, 7, 17 — Forrest v. Carstair's 
 
 Reps., 1715, M., 9713; 11,098, S. C. (Z) Fraser v. M'Keitch, 1838, IC S., 
 
 1045. (m) M-Dongall v. Campbell, 1833. 7 W. S., 19 ; affirming 8 S., 959. 
 
 («) Crawford v. Simpson, 1731, M., 11,102. (o) Smith's Children v. E. 
 
 Morton, 1714, M., 11,090 ; 4062, S. C. {p Ross v. Master of Saltoun, 1680, 
 
 M., 11,089. (r) Robertson v. Marq. Annandale, 1740, Cr. and St, 293. 
 
 (.s) Alcock V. Eiisson, 1842, 6 D., 356— Smellie v. Miller, 1835, 14 S., 12— Smellie 
 V. Cochrane, 1835, 13 S., 644— Sliepherd f. Meldruni, 1812. Hume D., 394. 
 
 9 
 3 MoncriolT/'. Waugh, 1859. 21 \\. 216.
 
 330 TRIENNIAL PRESCRIPTION. § 482- 
 
 sclioolmaster (f), or arrears of pay when claimed by a soldier from 
 his officer, to whom the same was payable by government («). 
 
 § 483. When wages fall under the Act, each term's payment 
 prescribes independently as it becomes due (oc). 
 
 § 484. '^ Merchants Gompts" mean primarily accounts incurred 
 to shopkeepers, or sellers of wares on credit {y). The term, in con- 
 nection with the general phrase of " the like debts," embraces ac- 
 counts to dealers whether wholesale or retail {%) ; to artificers who 
 furnish labour, not goods (a) ; and to surgeons and apothecaries (6) ; 
 and, generally, all accounts for furnishings, labour, and the like, 
 which are apt to run into credit, and which, being contracted with- 
 out writing, arc likely to be discharged without that formality (c). 
 The statute was held to include a claim by a sub-contractor against 
 the principal contractor for the cost of work in excavating the 
 foundations of a building, at a specified rate per yard, under a ver- 
 bal contract {d). Baron Hume reports a case wdiere an allowance 
 for superintending a contract to build houses was held not to incur 
 prescription (e). But this decision is more than questionable (/). 
 Accounts to printers {g), surveyors (Ji), and law-agents («), come 
 under the general clause in the Act ; and the same rule has been 
 applied to an annual factor fee for managing the affairs of a person 
 
 [t) Nicolson V. Monro, 1747, M., 11,080. The session papers show that the pursuer 
 was & parochial schoolmaster. (w) Graham v. E. Leven, 1709, M., 11,093. 
 
 (z) 1 Bell's Com., 331— Douglas v. D. of ArgyU, 1736, M., 11,102— Roiss v. Master 
 of Saltoun, 1680, M., 11,089. (y) " A merchant in Scotch phrase is a dealer 
 
 or shopkeeper, like the French marchand, a person who sells articles usually from day 
 to day on credit, but on short credit "; per L. Fullerton in M'Kinlay v. M'Kinlay, 1851, 
 14 D., 164. (z) Ord v. Duflfs, 1630, M., 11,083— Bruce v. Jack, 1670, 1 B. Sup., 
 
 609— Russel v. E. Argyll, 1610, M., 11,082— Ersk., 3, 7, 17. {a) Bayne, 1692, 
 
 M., 11,092— Tweedie v. Williamson, 1694, M., ib. (6) Ersk., 3, 7, 17—1 Bell's 
 
 Com., 331— See Macdowall v. Loudon, 1849, 12 D., 170. (c) Bell's Com., 
 
 supra. Mr Bell observes, that as the payment of money cannot in Scotland be proved 
 by parole, while the furnishing of goods may be so proved, the Act was intended, by a 
 presumption, to protect persons dealing with retail merchants, and those in a similar 
 situation, from a second demand. As to the statute introducing a presumption, see 
 mpra, \ 405. ((Z) M'Kay v. Carmichael, 1851, 14 D., 207, and supra, {a). 
 
 (e) Donaldson v. Ewing, 1819, Hume D., 481. (/) See per L. Fullerton 
 
 in Blackadder v. Milne, 1851, 13 D., 820. {g) Neill & Co. v. Hopkirk, 1849, 
 
 12 D., 618. (A) Stevenson v. Kyle, 1850, 12 D., 673. {i) Ersk., 3, 
 
 7, 17_1 Bell's Com., 331— Somerville v. Muirhead's Exs., 1675, M., 11,087— Dallas v. 
 M'Kenzie, 1695, 4 B. Sup., 271— Campbell v. Stein, 23d Nov. 1813, F. C. ; affirmed 6 
 Dow, 116— Ker v. Mag. of Kirkwall, 1827, 5 S., 802— Wallace v. M'Kissock, 1829, 7 S., 
 542— Napier v. Balfour, 1835, 13 S., 853— Moncrieff v. Durham, 1836, 14 S., 830— 
 M'Andrew v. Hunter, 1851, 13 D., 1111— Cullen v. Smeal, 1853, 15 D., 868.
 
 § 485. TRIENNIAL rUESClUPTION. 331 
 
 abruful (,/); to a cluiiii lor reiimueratioii by a clerk to a submis- 
 sion {k) ; and to a connnissitjn lor cash advances, when Ibrniing 
 part of a law-agent's account (/).•* 
 
 § 485. The statute, however, does not embrace all mercantile 
 accounts (m). It is held not to include a claim for the price under 
 an isolated sale of goods (n)f and whether it applies to a number 
 of articles sold under one contract, but. delivered at different times, 
 is doubtful (o). In a case already mentioned, where two daughters 
 of a deceased farmer claimed in the sequestration of his son's estate 
 the value of seed which had been supplied to the son from crops 
 belonging to them, and of labour perlyi-med by their horses ; the 
 trustee's defence of prescription was repelled (p). Accounts for 
 cash advances do not come within the Act (r). Consequently, 
 when a law-agent's account includes both cash advances and busi- 
 ness charges, the prescription is held to run against the latter, and 
 not against the former (s). If, however, the cash payments are 
 merely accessory to the business charges, and such as usually oc- 
 cur in business accounts, the Court will not allow them to be picked 
 out from among the items of professional charge, but will apply 
 
 (/) Grubb V. Porteous, 1836, 13 S., 603. (A) Farquharson v. H. M. Advo- 
 
 cate, 22(1 July 1754, M., 11,108, inaccurately noticed by Ersk., 3, 7, 17, 
 
 (0 Scott V. Gregory's Tr., 1832, 10 S., 375. (m) On the difference be- 
 
 tween merchants' accounts and mercantile accounts, see per L. Fullerton in M'Kinlay v. 
 M'Kinlay, 1851, 14 D., 164, st/pra (y). (n) Baird v. Montgomery, 1688, M., 
 
 11,01)2 — Ewart v. Murray, 1730, M., 11,007 — M'Gregor v. Stewart, 1811, Hume D., 
 472— Smith v. Miller, 1827, 5 S., 338. (o) In Bruce v. Jack, 1670, 1 B. Sup., 
 
 009, the statute was held to apply to such a case. But in M'DougaU i>. Campbell, 1833, 
 8 S., 959 ; 7 W. S., 19, the Court of Session held that a claim for the i3rice of cattle sold 
 and delivered in this way, and forming part of an account which embraced cash advances 
 and other items, fell under the statute. Lord Chancellor Brougham considered the 
 point doubtful, and reserved it by deciding the case on other grounds. 
 
 {p) Gairs v. Taylor, 1849, 11 D., 1244, supra, § 469. (r) Smith v. BeU, 
 
 1829, 7 S., 771— Ker v. Mag. of Kirkwall, 1827, 5 S., 802— Paterson t-. M'Kenzie, 1825, 
 3 S., 620— Moncrieff v. Durham, 1836, 14 S., 830. (s) Moncrieff v. Durham, 
 
 supra— KeT v. Mag. of Kirkwall, supra. 
 
 * And to an account to an engraver for preparing parliamentary plans of a projected 
 railway ; Johnston v. Scott, 1860, 22 D., 393. 
 
 5 Where prescription was pleaded in defence to a claim for the price of commodities 
 which were all furnished at one time, more than three and within five years prior to 
 the action, the pursuer pleaded that the triennial prescription did not apply to an ac- 
 count for a single furnishing, but that the quinquennial prescription would liave applied 
 had the five years elapsed. But Lord Kinluch repelled that plea, and held that the dis- 
 tinction was in the character of the transaction, not the number of furnishings ; and ho 
 sustained the defence of the triennial prescription ; Gobbi v. Lazzaroui, 1859, 21 D., 
 801.
 
 332 TRIENNIAL PRESCEIPTION. § 485- 
 
 the statute to the account as a wliole (f).'^ So an account incurred 
 to a newspaper proprietor for advertising prescribes, altliougli he 
 advanced the government duty (?/). The converse also of tlie same 
 principle would seem to hold ; so that business charges, and the like, 
 when occurring incidentally in an account "which does not fall 
 under the statute, and when mixed up wdth the other items of the 
 account, will not be held to have incurred prescription separately {x). 
 
 § 486. The statute includes an account incurred to a solicitor 
 in London employed to oppose a bill in Parliament (y). But where 
 a Scotch attorney in Exchequer had been deputed by the general 
 body of Scotch distillers to attend to their interests in regard to 
 certain legislative measures, under which employment he performed 
 several journeys to London, and was otherwise much occupied in 
 the business, the Court, in three cases, held that his claim for re- 
 muneration did not come wdthin the statute, because the business 
 was of a special character, arising ex mandafo, and not falling within 
 the ordinary business of the pursuer as a Scotch legal practition- 
 er (z). The authority of these decisions w^as recognised in a subse- 
 quent case, Avhere a claim by an engineer, who had been employed 
 as a skilled witness on a water company's bill, was considered by a 
 majority of the whole Court not to fall wdthin the triennial pre- 
 scription («). It was not necessary, however, to decide the point 
 expressly, as the claim was " founded on a written obligation." 
 
 § 487. The Act only strikes at accounts as between merchant 
 and customer, or employer and employee. It does not include ac- 
 counts between a commission-agent and his principal (h), or be- 
 tween the general body of owners of a ship and one of them who 
 as their administrator had drawn the freights (c) ; or accounts be- 
 
 {() See Napier v. Balfour, 1835, 13 S., 853. See also Hotson v. Threshie, 1883, 11 
 S., 482. (u) Robertson v. Royal Association, 1840, 2 D., 1343. 
 
 {x) So held in Boyes' Tr. v. Hamilton, 30tli June 1829, as reported in F. C. and 1 
 De. and And., 245. But see this case in 7 S., 815. See also Paterson v. Walker (per 
 Lords Bannatyne and Craigie), 19th June 1812, as noted in 13 D., 825. 
 
 (y) Webster v. M'Lellan, 1852, 14 D., 932— Deans v. Steele, 1853, 16 D., 317. 
 
 (z) Paterson v. Walker, 13th November 1812— Walker v. Simpson, 9th June 1813 
 (both noted in Blackadder v. Milne, 1851, 13 D., 820, and in Walker v. M'Nair, infra) 
 —Walker v. M'Nair, 1832, 10 S., 672 : 5 De. and And., 390, S. C. («) Black- 
 
 adder V. Milne, supra. {b) M'Kinlay v. M'Kinlay, 1851, 14 D., 162— 2«/ra, (ej) 
 
 (c) Butchart v. Moodie, 1781, M., 11,113 ; Hailes, 885, S. C. 
 
 6 The question whether a distinction can be taken between business charges by a law 
 agent and advances made by him in the course of business, as regards the application 
 of the statute, has been raised in two recent cases— Lamond's Trustees v. Merry, and 
 Richardson, Loch, & Maclaurin v. Bclhavcn— and is now under consideration of the 
 Court on minutes of debate.
 
 § 490. TRIENNIAL PRESCRIPTION. 333 
 
 twecu a party auil un inlrnmiitfr with his luixls (d) ; or claims l)y 
 a party against one Avlm Imd received his money as his agent, factor, 
 or consignee (e); or chiims Ly a mandatory or a negotiorum (jestor 
 for repayment of advances (/). Indeed no accounts arising out of 
 the contracts of mandate, or necjotiorum gestio, are considered to he 
 among " the like dehts" to accounts hy a merchant against his cus- 
 tomer ; and this is peculiarly the case in regard to accounts be- 
 tween commission-agent and emjdoyer, which were hardly knoAvn 
 in Scotland at the time when the Act 1579, c. 83, was passed (g). 
 
 § 488. Where one of several debtors has paid a merchant's ac- 
 count, his claim for relief against a correics does not come under the 
 triennial prescrii)tion (//). 
 
 § 489. In two cases where prescription was held not to apply, 
 the Court seem to have been partly inlluenced by tlie circumstance 
 that the accounts were between foreign merchants (/). But as they 
 related to consignments of goods to commission-agents, they did not 
 come within the statutory rule. The circumstance of the parties to 
 an account being foreigners is now held not to prevent it from pre- 
 scribing (F). 
 
 § 490. With regard to the extent to which merchants' ac- 
 counts and the like debts are struck at by the statute, it seems to 
 have been held, in a claim by a farmer for the price of wool and 
 cheese sold yearly to a merchant, that each year's sales prescribed 
 independently of the others (l). But whether this special case was 
 decided correctly or not, the general rule is completely established, 
 that the prescription of merchants' accounts does not run on the 
 items separately, but on the whole account when closed (m). And 
 the currency of the account is preserved by a new article being fur- 
 nished within three years of the preceding item (??) ; unless tlie en- 
 
 {d) Maxwell v. \Velsh, 1633, M., 11,084. 
 
 (e) Frier v. Putersoii, 1820, 4 S., 39G— Waddull v. Morton, 1825, ib.. 170— JI-Far- 
 lane v. BrowTi, 1827, 5 S., 205— Hamilton & Co. v. Martin, 1795, M., 11.120— And.-rsou 
 and Child i-. Wood, 1800, Hume D., 467. (/) Drummond v. Stewurt, 1740, M., 
 
 6858; 11,103, S. C— SadcUtT v. M'Leau, 1794, M,, 11,119; B.ll s Folio Ca., 104, S. C. 
 — Grubb V. Porteous, 1835, 13 S., G03. {</) M'Kinlay t;. M'Kinlay, supra— 
 
 Hamilton & Co. v. Martin, supra. (h) Bland v. Short, 1824, 3 S., 419. See also 
 
 Thomson v. Westwood, 1842, 4 D., 8SS— supra, g 480, {g), and supra, § 427. 
 
 (t) Hamilton & Co. v. Martin, supra — Anderson and Child v. Wood, supra. 
 
 (A) Sec infra, g 526, ct seq., and per L. Cunninghame in M'Kinlay v. M'Kinlay, supra. 
 
 (I) Tod I'. Wightnian, 1699, 4 B. Sui*., 463. The rejuirt is not very clear. 
 
 (m) 1 Bell's Com., 331; Ersk., 3, 7, 17— Somervillo r. Muirhead. 1687. M.. 11,087— 
 A B, 1685, Dirl. Dec, No. 318— Wiiite v. Currie, 1829. 8 S.. 154. Hero the nile in the 
 text was ajiplied, althoiigh eacli year's furnishings were added up into a distinct sum in 
 the creditor's books, and interest was charged separately on each amount. 
 
 (n) Mason v. E. Aberdeen, 1709, M., 11,094—1 Bell's Com., 332.
 
 334 TRIENNIAL PRESCRIPTION. § 490- 
 
 try was made as au aftortliought to escape from prescription (o) ; or 
 unless the new article was paid for separately, and so did not pass 
 into the account (jj). The currency of the account is preserved by 
 the later items, if originally furnished on credit, although payment 
 for them may have been recovered from a conceits of the defender (r). 
 Where prescription was pleaded against the earlier items of an ac- 
 count, and payment of later items had been recovered from a cor- 
 reus, it was held competent to refer to these later items to meet 
 the plea of prescription, although they had not been libelled 
 on (.§). 
 
 § 491. A law-agent's account, divided into branches applicable 
 to the different matters in which he is employed, prescribes as a 
 continuous account {t). And this holds as to a claim by an Edin- 
 burgh agent against the country agent who employed him, al- 
 though the account be divided into branches applicable to the 
 several clients («). But, in such a case, the Edinburgh agent's 
 claim against each of the clients individually seems not to be pre- 
 served from prescription by the branches which apply to the 
 others {x). 
 
 § 492. An account is not hold to be continuous, unless it is all 
 due by the same debtor to the same creditor. It is therefore not 
 continued by an article furnished by the debtor to the creditor, in 
 place of the opposite {y). The account is also closed by the debtor's 
 death, and is not continued by furnishings to his widow {%) or re- 
 presentative {a). It is an open question wh ether an account in- 
 curred to an individual can be continued by one to a firm of which 
 he becomes a member, or vice versa (6). But where two accounts 
 were incurred to an agent individually with less than three years 
 between them, and in the interval the client incurred an account 
 to a company of wdiich the agent was a partner, the latter account 
 
 (o) Stewart v. Scott, 1844, 6 D., 889— Gordon v. Innes, 1826, 4 S., 577. 
 
 Ip) Beck V. Learmonth, 1831, 10 S., 81. (r) Fisher v. Ure, 1836, 14 S., 660. 
 
 (s) Fisher v. Ure, supra. (i) Elder v. Hamilton, 1833, 11 S., 591— Moffat 
 
 V. Marshall, 1825, 3 S., 329 (new ed.). (m) Fisher v. Ure, siq^ra. 
 
 (z) See Fisher v. Ure, supra. (y) Ramage ?;. Charteris, 1782, M., 11,113. 
 
 (z) Wilson V. Tours, 1680, M., 11,089— Lyon v. Mitchell, 1819, Hume D., 481. 
 
 (a) Kennedy v. Donald, 1741, M., 11,089; 5 B. Sup., 710, S. C— Cockburn v. 
 Hamilton, 1712, Rob. Ap., 32— L. Ormiston v. Hamilton, 1709, M., 11,093—1 Boll's 
 Com., 332 (contra, Ersk., 3, 7, 17). This also holds as to a successor titulo luerativo; 
 Elder v. Hamilton, 1833, 11 S., 591. (6) The account was held not to be con- 
 
 tinuous by L. (Ordinary) Cunninghame in Torrance v. Bryson, 1840, 3 D., 186 (ac- 
 quiesced in) ; but this is questioned by L. Medwyn in Stewart v. Scott, 1844, 6 D., 893. 
 And in Barker v. Kippcn, 1841, 3 D., 905, the Court, in the special circumstances, held 
 it continuous, but waived dftermiiiing the general point.
 
 § 494. TRIENNIAL PRESCRIPTION. 335 
 
 vvus ln'M not to interrupt the continuity of tlio two others, so as to 
 cause the first one to prescribe independently (<■). 
 
 § 493. It in a condition oi" this prescription tluit the debts to 
 which it apph'cs be " not founded ujjomm'itten obltgattons ;" tlic rea- 
 son evidently bein<2,- tliat, if a dei)t is constituted l)y writin<,^, tlie 
 same formality will likely l)e observed in discharging it (d). This 
 exceptional rule has been applied to cases of rent under a written 
 lease (e), wages under a written contract of service (/), and the cost 
 of mason-work under a written contract (g). And where the agent for 
 a water company wrote a letter to an engineer stating that his pro- 
 fessional attendance would be required in London by the company 
 at a certain time, and mentioning a certain rate of remuneration, 
 which the agent supposed would suffice, the Court held that the 
 writing took the case out of the statute (h). Again, in an action 
 about the price of sheep, where the bargain was proved by the 
 written valuation of a person to whom the parties had referred the 
 point by an improbative missive, the Court held that the case did 
 not fall under cither the triennial or the quin(|uennial prescrip- 
 tion ('/). 
 
 § 494. But where goods were merely ordered in wTiting, an 
 action for the price of them is held not to come within the statu- 
 tory exception ; because the " obligation," in so far as it stands on 
 such a writing, is inchoate and incomplete (/>•). And on the same 
 principle, where one wrote to a young man, desiring him to come 
 and attend his son at a certain fee, the Court sustained a plea of 
 the triennial prescription in an action for the arrears (T). An op- 
 posite decision was pronounced in an action for aliment of a pupil, 
 which the Court held to come within the exceptional clause of the 
 statute, as the pupil had been " recommended by a letter of his fa- 
 ther" to the host (m). 
 
 (c) Torrance v. Bryson, supra. {d) On this see 1 Bell's Com., 332. 
 
 (e) Cumings Tr. v. Simpson, 1825, 8 S., 545. (/) M'Tavish v. Campbell, 
 
 1G77, 6 B. Sup., 543. See Mackenzie v. T. of Biirntislaml, 1728, M., 11,102; 11,421, 
 S. C. But see contra, Crawi'ord v. Simpson, 1731, I\r., 11,102. (y) AVatson v. 
 
 L. Prestonhall, 1711, M.. 11,005. Ste Hot.^on v. Throsbio, 1833, 11 S., 482. 
 
 (A) Blackadder v. Milne, 1851, 13 D., 820; noticed supra, § 486. 
 
 (i) Cameron v. Cameron, 24tb Juno 1801, Humo D., 472. (k) Cheap v. 
 
 Cordiner, 1775, M., 11,111— Ross v. Shaw, 1784, M., 11,115— Douglas v. Griorson, 1794, 
 M., 11,110 ; Bell's Folio Ca., 97, 102, S. C— 1 Bell's Com., 332. See also E. Southesk 
 V. Simson, 1G82, M., 11,066; 12,326, S. C— contra, Dickson v. M'Aulcy, 1681, M., 
 
 11,090— Boll V. . 1755, 5 B. Sup., 840. (/) Craigievar's Tutors t>. Gray, 
 
 1682, M., 11,091. (m) Somcrvail v. Stratoune, 1649. 1 B. Sup., 402.
 
 33() TRIENNIAL PRESCRIPTION. § 495- 
 
 § 495, Wiicrc an accoimt for funiishiiigs by tlie keeper of a 
 lodging and eating house, was sued upon as " per pass-book, com- 
 mencing 2d December 1833 and ending 9tli September 1837," 
 signed by the defender ; and where it appeared that the signatures, 
 if genuine, had been written before the entries, and that these had 
 been filled in by another person continuously ; the Court held that 
 there was no "wi'it constituting the debt, and that the prescription 
 applied (n). The case was decided on its special circumstances, 
 and mthout settling whether a properly subscribed account-book 
 in re mercatoria might be received as a written constitution of the 
 debt, the genuineness of the subscription (if disputed) being proved 
 by parole. 
 
 Where a master mason sued road trustees for the price of work 
 executed during a number of years, partly on written estimates and 
 partly on verbal orders, the whole being entered in a general ac- 
 count, in which there were entries of partial payments exceeding 
 the value of the work done on estimate, the Court applied the trien- 
 nial prescription to the account as a whole, and would not allow 
 the pursuer to pick out the items supported by writing, on the 
 ground that they fell under the exceptional clause of the statute (o). 
 It does not appear very clearly whether the Court considered that 
 the written estimates would have excluded prescription, if that 
 point had arisen purely. 
 
 It were well if the characteristics of the "written obligation" 
 which the statute requires were defined by some authoritative judg- 
 ment ; for the decisions on the point present neither harmony nor 
 definite principle. 
 
 § 496. The currency of this prescription is not impeded by the 
 creditor's minority (p). 
 
 § 497. The Act which introduced the triennial prescription or- 
 dained that all actions for the debts to which it refers "be pursued 
 within three years, otherwise the creditor shall have no action ex- 
 cept he either prove by writ or oath of his party." There are two 
 conflicting constructions of this enactment. 
 
 On the one hand, it is said that the Act peremptorily ordains 
 that if the action in which the claim is made was not raised before 
 the three years expired, the proof shall be limited to the defenders 
 
 (n) Campbell v. Grant, 1843, 5 D., 755. (o) Hotson v. Thrcshie, 1833, 11 
 
 S., 482. (p) I^rown v. Biodie, 1709, M., 11,150—1 Bell's Com., 331, 4.
 
 § 497. TRIENNIAL PRESCRIPTION. 337 
 
 M'rit (»r (jutli; and, tliui'et'oiv, the only imiiils t<j Itc regarded are, 1st, 
 Whetlier the deltt lulls williin any d" llie statutory defiuitious ? 
 and, 2d, Wlictlier the iiarliCnlar aetiuii in which prescription is 
 pleaded was raised lieforc the three years had expired ? This view 
 is supported l)y ohiter dicta in several cases as appearing in tlie re- 
 ports (r).^ 
 
 On the other hand, it is maintained tliat il" a jimper action for 
 the deljt was pursued within the three years, the prescription is 
 excluded ; and the creditor may prove his claim 2^>''^'if (^(^ J^^>'^ i'* 
 any suhsequent action, although raised after the statutory period 
 has expired. This view is favoured by several cases (s), and was 
 expressly found to he the true construction of the statute in a re- 
 cent and highly authoritative decision (/). In that case the claim 
 (which was for payment of an account) had within the three years 
 been judicially pleaded by way of recompensation in an action at 
 the instance of the creditor in the account against the debtor, and 
 luid, along with other questions between them, been the subject of 
 a judicial reference. The referee, however, died ; and on an action 
 for the debt being raised after the three j^ears had expired (but 
 without any undue delay on the part of the creditor), the debtor 
 pleaded the triennial prescription. Founding on the dicta above 
 mentioned, he maintained that, as the action had lieen raised after 
 the expiry of the three years, the only proof competent to the credi- 
 tor was the debtor's writ or oath. But the Court repelled that plea, 
 and held that prescription had been excluded by the previous pro- 
 ceedings. The grounds of decision were, 1st, That the debtor's 
 agreement to refer within the three years imported a waiver of the 
 plea of prescription, and barred him, personali exceptione, from that 
 
 (r) Per Lords Glenlee and Pitmilly in M'Laren v. Buik, 1829, 7 S., 488, 9— per L. 
 Just.-Clcrk Hope in AJcock v. Easson, 1842, 5 D., 363 — and per eund. in Cochrane v. 
 Prentice, 1841, 4 D., 79. (s) Douglas, Heron, & Co. v. Richardson, 1784, M., 
 
 11,127— Nat. Bank v. Hope, 1837, 16 S., 177. See also Ferrier v. Errol. 9th July 1811, 
 F. C, noted supra, J 431. {t) Lamb r. Dunn (First Division), 14th June 1854, 
 
 16 D., 944. 
 
 fi In a recent case. Lord Kinloch, in a note to an interlocutor, not reclaimed against, 
 expressly adopts this view of the Act. His Lordship says, — " The action in which the 
 Court is called to pronounce judgment, if beyond the three years, can admit no other 
 proof" (than writ or oath), "and the consideration of any other action is irrelevant;" 
 Gobbi V. Lazzaroni, 1859, 21 D., 801. But the opposite view, stated in the following 
 paragraph, has been adopted by both Divisions of the Court. Sec Lamb v. Dunn and 
 Eddie v. Monklands Railway Co., infra. 
 
 VOL. L Y
 
 338 TRIENNIAL PRESCRIPTION. § 497- 
 
 defence ; ami, 2d, That as tlio creditor had within the statutory 
 period " pursued " for his chxim before a competent tribunal and in 
 a competent form, and had therefore used proper statutory means 
 for excluding prescription, he could not be held to have lost the 
 benefit of his procedure in consequence of its having failed from 
 causes beyond his control and for which he was not to blame. The 
 Court went in a great measure upon the decisions in which plead- 
 ing the claim in competitions of creditors, and by way of compen- 
 sation to a judicial claim by the debtor, had been held to exclude 
 prescription. Lords Ivory and Kutherfurd, however, observed that 
 the terms of the statute seem to contemplate both an action in 
 which prescription would be pleaded, and a previous action by which 
 that plea might be barred. 
 
 § 498. This case supports another important principle, namely, 
 that the term " action pursued" in the Acts 1579, c. 83, and 1669, 
 c. 9, and " action commenced," &c., in the Act 12 Geo. Ill, c. 72, 
 are not limited to actions which the creditors raise by libelled sum- 
 monses ; but include every appropriate procedure which the credi- 
 tor may timeously adopt for following forth, prosecuting, or pursu- 
 ing for his debt. The real point, therefore, in the question whether 
 any previous procedure has excluded the prescription or not, is, 
 whether the creditor within the three years took proper steps for 
 making good his debt by a libelled action, by a reference which 
 properly embraces the debt, by claiming upon it in a competition of 
 his debtor's creditors, by pleading it in compensation or recompen- 
 sation against a debt due by him to his debtor, or by any other 
 competent step. If he has done so, the triennial prescription can- 
 not be pleaded in any subsequent action at his instance for making 
 good his claim. But w^hile the death of the referee in the case of 
 a submission, the inadequacy of the debtor's funds in a case of com- 
 petition, or any such contingency for which the creditor is not re- 
 sponsible, will not exclude him from the benefit of his timeous pro- 
 cedure, the prescription will not be barred by an action which has 
 failed in its purpose from its original incompetency, from its inade- 
 quacy to make the claim effectual, or from its having been aban- 
 doned by the creditor.^ 
 
 8 In a still more recent case, the views of the judges of the First Division in the 
 case of I>amb v. Dunn were fully adopted by the judges of the Second Division. It 
 was expressly recognised that a " pursuit " within the years of prescription, though un- 
 successful, might obviate the defence of prescription when pleaded for that purpose in a 
 subsequent action, and so enable the purbuer of that subsequent action to establish his
 
 §501. TRIENN'IAL I'lIKSCKIPTION. 839 
 
 § 4'J9. Yet ii" the dcht li;is \)vv\i jtlcailciJ hy way vi' coiiipeiisa- 
 tion against a debt of smaller amount, it seems that the creditor by 
 that j)lea lias preserved his claim ibr tlie whole debt from the trien- 
 nial prescription (?<). 
 
 § 500, It was observed in the case thus referred to that the 
 word " interrupt" is not properly a])plied to the procedure by wliich 
 the shorter prescriptions are barred or excluded ; but is only ap- 
 propriate to the long prescriptions (iv). The word " elide" expresses 
 the idea correctly; although it has sometimes been applied to proof 
 by the debtor's writ or oath, by which the debt after having pre- 
 scribed may be proved {x). It has also been observed that these 
 statutory limitations of the proof are inappropriately termed " pre- 
 scriptions" (y). As, however, that term is applied to them in the 
 body of the Act 1669, c. 9, and in the rubric of the Act 1579, c. 83, 
 as well as by aU our institutional writers, there is not much ground 
 for challenging it; and, if properly understood, it does not occasion 
 any inconvenience (z). 
 
 § 501. When the claim falls witliin any of tlie classes enu- 
 merated in the statute, and has not been followed fn'th \\'ithin the 
 three years, it prescribes, whether it is made by way of action or 
 
 (u) Per curiam in Lamb r. Dunn, supra. (^ic) Per Ij. President and Rutlier- 
 
 furd in Lamb v. Dunn, supra — Napier on Prescription, 716, et seq. (x) See cases 
 
 collected in Napier, 775 ; and per L. Eutlicrfurd in Lamb v. Dunn, supra. 
 
 (y) Per L. Justice-Clerk in Alcock v. Easson, 1842, 5 D., 362. (z) See per 
 
 L. Rutherfurd in Lamb v. Dunn, supra, and in Cullen v. Smeal, 1853, 15 D.. 882. 
 Lord Brouf^ham speaks of the triennial, sexennial, and vicennial "prescriptions" in 
 Don V. Lippman, 1837, 2 Sh. and M-L., 730. 
 
 case by proof prout de jure. But it was laid down that the claim within the years of 
 prescription, to have this effect, must have been made and urged in a competent judi- 
 cial proceeding in which it could receive effect. A mere notice of a claim would not be 
 enough ; nor a claim in an incompetent process ; nor a claim made in a competent pro- 
 cess and abandoned. In this case the action was brought, in 1851, for the price of fur- 
 nishings made in 1842. The defender pleaded prescription, and the pursuer pleaded 
 that that defence was obviated by what had taken place in an action raised in 1843 
 by the defender against him, the jmrsuer. In that process he (then defender) had 
 stated that he had the claim for the price of the furnishings in question, and jileadcd 
 that his claim for it should be reserved. He was successful in throwing out that ac- 
 tion. The Court held that, as he liad done nothing in the previous process but make 
 intimation of his claim, the defence of prescription was not olniated, as sucli an inti- 
 mation did not amount to pursuit in the sense of the Act ; Eddie c. Monklands Rail- 
 way Co., 1855, 17 D., 1042. An action within the years of prescription, made and 
 abandoned, will not obviate the pica of prescription; Gobbi i-. Lazzaroni. 1859, 21 
 D., 801. 
 
 t2
 
 340 TRIENNIAL PRESCKIPTION. § 501- 
 
 as a defeuce of coinpeusation (a). So a prescribed account was 
 held not to entitle the creditor to vote in the election of a trustee 
 on the debtor's sequestrated estate (Z>). And the same rule was 
 applied to a prescribed bill, fortified by the circumstance that the 
 holder was the concurring creditor in the petition for the debtor's 
 sequestration ; which the Court considered did not, in a competi- 
 tion of the debtor's creditors, import the statutory admission of 
 resting-owing (c). 
 
 § 502. But it has been held more than once that in a general 
 accounting Itetween the parties, one of them may not plead the 
 triennial prescription to individual items charged against him (d). 
 
 II. — Proving flic debt after it lias incurred prescription. 
 
 § 503. It has already been observed that the effect of the Act 
 1579, c. 83, is to lay on the creditor the burden of proving both 
 the constitution (e) and the subsistence of the prescribed debt, and 
 to limit liis proof to the debtor's writ or oath (/) ; admissions by 
 the debtor on record, however, lunding him in tlie mode already 
 noticed {g). 
 
 § 504. It is not necessary that the writ by which the constitu- 
 tion or subsistence of the debt is proved should be either probative 
 or holograph {h). An unsigned memorandum, holograph of the 
 debtor, and found in the creditor's repositories, has been sus- 
 tained {i). And a document which truly applies to tlie debt in 
 question, but without expressly referring to it, will suffice {k). 
 
 (a) Dickson v. M'Auley, 1681, M., 11,090— Galloway v. Galloway, 1799, M., 11,122 
 —Balfour v. Landails, 1683, M., 11,216. See also Paterson v. Strachan, 1808, Hume 
 D., 480— Miller v. Baird, 1819, ib.— Berry's Reps. v. Wight, 1822, 1 S., 433. 
 
 (6) AVink v. Mortimer, 1849, 11 D., 995. (c) Lockhart v. Mitchell, 1849, 11 
 
 D., 1341. {d) So held where the items challenged were a law-agent's accounts ; 
 
 Boyes' Tr. v. Hamilton, 1829, 7 S., 815— and where they were for furnishings of goods ; 
 Bi-unton v. Angus, 1822, 2 S., 61— and the salary of a factor ; Smith's children v. E. 
 Winton, 1714, M., 4062, 11,096. See contra, Paterson v. Strachan, 1808, Hume D., 480. 
 
 (e) The term "constitution " of the debt is objectionable, because its usual and pro- 
 per meaning is the decree or document by which a debt is made liquid. In questions 
 of prescription, however, it has become the common term for expressing the original 
 contraction or existence of the obligation. (/) See supra, l\ 406, 477 ; and 
 
 cases in following notes. (//) Supra, \ 407, et scq. (Ji) Macandrew v. 
 
 Hunter, 1850, 13 D., 1111— Hyslop v. Howden, 1843, 6 D., 507— Black v. Shand's Crs., 
 1823, 2 S., 118. («') Donaldson v. Murray, 1766, M., 11,110— Watson v. 
 
 Hunter & Co., 1841, 3 D., 583— Watson v. Johnstone, 1846, 18 Sc. Jur., 598. As to 
 the creditor's writ found in tlie debtor's repositories, see supra, § 450. 
 
 (A) Davidson v. Hay, 1799, Hume D., 460— Stevenson v. Kyle, 1849, 11 D., 1086; 
 12 ib., 673. 
 
 I
 
 § 507. TIUKNNIAL PKKSCHin'ION. 341 
 
 § 505. If the constitution of the debt i.s proved by the debtor's 
 writ or admission on record, the reference to his oath may be limit- 
 ed to the fact of resting-owing (l). 
 
 § 50(3. I. — With regard to proving the constitution of the debt, 
 tlie same principles apply as in cases under the sexennial and quin- 
 quennial prescriptions, namely, that the pursuer will fail in his 
 proof, unless the defender admits that a debt was contracted, or 
 admits circumstances from which that must be inferred (m). Thus 
 in an action for payment of a law-agent's account, where the de- 
 fender pleaded on record that the account had been incurred in a 
 process which had been carried on in his name, but in which he 
 had intimated to tlie pursuer that he did not intend to appear per- 
 sonally ; A\ hereupon the latter had agreed to conduct the ca.se for 
 a body of trustees, of which the defender was one ; the Court held 
 that the qualiiied admission did not prove the constitution of the 
 debt {n). So that fact is not proved where the defender states on 
 record or in his oath that the goods were furnished in order to ex- 
 tinguish a counter-claim by him against the pursuer (o) ; or that 
 they were furnished on the credit and obligation, not of the defen- 
 der, but of a third party {p). So in an action for payment of a con- 
 fectioner's account, where the defender admitted that his family 
 had dealt with the pursuer, but stated that he knew nothing about 
 the account sued for, as all such household matters had been under 
 the charge of his deceased wife, constitution of the debt was held 
 not to be proved (r). And where a party sued for payment of ser- 
 vants' wages admits the service, but adds that it w^as rendered in 
 return for board and maintenance, and on the footing of wages not 
 being payable, the constitution of the debt is not proved, because 
 the alleged obligation to pay wages is expressly denied (s). 
 
 § 507. On the other hand, where an action for payment of a 
 
 (/) Deans v. Steele, 1853, 16 D.. 317— Wilson v. Strang, 1830, 8 S., 625. 
 
 (to; Supra, 2 448. (n) Scott v. Donaldson. 1831, 10 S., 107. 
 
 (o) Campbell v. Grierson, 1848, 10 D., 361— Lauder v. M'Gibbon, 1727. M., 13.206. 
 
 {p) Meyer & Mortimer v. Leunard, 1851, 14 D., 99. In this case Lord Justice- 
 Clerk Hope observed, " Sujipose the case of an action for a dinner bill ; and the question 
 was asked. Did you eat the dinner? and the answer was, 1 did ; but it was as a guest — 
 that does not prove the constitution." (r) Fyfe v. Miller, 1837. 15 S., 1188. 
 
 (,«) Alcock V. Easson, 1842, 5 D., 356— Shepherd v. Meldruni. 1812, Hume D.. 394. 
 In Anderson r. Halley, 1847, 9 D.. 1222, the Court sustained the pursuer's claim for 
 wages so far as not prescribed ; because the legal presumption was, that the service had 
 not been rendered gratuitously. But the pursuer acquiesced in the Lord Ordinary's 
 judgment sustaining the defence as to the wages beyond the triennial period. See 
 contra. M'Nauj:hton v. M-Niiimhtnn. 1818. Hume D.. •■-.'.m.
 
 342 TRIENNIAL PRESCRIPTION. § 507- 
 
 iniiiter's account Avas raised against the solvent partner of a firm of 
 hiw-ag-ents, after the other partner had been sequestrated and the 
 partnership had been dissolved, the constitution of the debt was 
 held to be proved 1)}' the defender's deposition that the account had 
 been incurred in processes which had not been conducted for the 
 company, but solely on behalf of the insolvent partner (t). The 
 Court considered that as the account fell within the scope of the 
 partnership, the company must be held liable for it, unless the 
 printer's knowledge that it had been incurred merely on the insol- 
 vent partner's responsibility had been proved. The defender would 
 have been freed, if that fact had appeared in his oath. So where a 
 party, sued for payment of an account for defending a process 
 against him and certain persons, admitted in his oath on reference 
 that he had no agents except the pursuers to defend him ; that he 
 had handed to a co-defender a claim on which to found a plea of 
 compensation ; that the claim had been lodged in process accord- 
 ingly ; that he had had interviews with the pursuers regarding the 
 case, and had carried away the process for perusal when it embraced 
 papers in his name ; and that he did not recollect of having ever 
 told the pursuers that they were not to look to him for payment ; 
 the Court held that these admissions showed that he was bound for 
 the expenses sued for, although his oath contained a denial of his 
 obligation (u). In another case, where a law-agent sued the trus- 
 tee on a sequestrated estate for payment of a prescribed account, 
 the emplojTiient had been undertaken upon a letter from the coun- 
 try agent, who transmitted the process to the pursuer, and which 
 letter was signed by him and by the trustee. It stated that the case 
 was transmitted on the same terms as those on which it had been 
 sent to the pursuer for his advice at an earlier stage ; and these 
 terms were contained in a letter from the country agent, which sti- 
 pulated that he (the country agent) was not to incur any personal 
 responsibihty for the expenses. The Court held the constitution 
 of the debt to be proved as against the trustee by his subscription 
 of the country agent's letter, which did not infer that the trustee 
 was free from liability for the account incurred on his employ- 
 ment {x). So in an action by a law-agent in Edinburgh against a 
 provincial agent, who employed him to conduct certain cases for 
 the clients of the latter, the employment was proved by the defen- 
 
 {t) Nfill & Co. V. Hopkirk, 1849, 12 D., 618. (u) Grant v. Wishart, 1845, 7 
 
 D., 274. See also Napier v. Balfour. 1835, 13 S., 853, (x) Macandrew v. Hun- 
 
 ter. 1851, 13 D., 1111.
 
 § OUD. TKIKNNIAL rUKSCUIlTION. 343 
 
 der's letter; and the Court disregarded his stiiteineiit on record that 
 it was understood between Iiim and the pursuer tliat he was not to 
 incur personal responsil>ility (//). An opposite decision would 
 have been pronounced, if the pursuer's only proof had been an 
 admission so qualified, made by the defender in his oath on re- 
 ference (z).'-' 
 
 § 50(S. 1 1. — Willi regard to jjroving the subsistence of the 2»*e- 
 scribed dr/jf hy the dv\^t(n-'s writ, the same rule applies as in the 
 sexennial prescription (a), namely, tliat the writing will not be re- 
 garded, if it is dated during tlie currency of the statutory period; 
 for altlioiigh such a writing may prove rcsting-owing at its date, it 
 does not prove that payment was not made some time l)efore the 
 whole three years expired (b). Accordingly, a writing by the 
 debtor, but without a date, will not prove resting-owing (c), Such 
 cases, of course, are distinguished from those in which the docu- 
 ment amounts not merely to an admission of resting-owing, but to 
 a written constitution of the debt ; the existence of such a writ 
 altogether excluding the operation of the Act (d). 
 
 § 509. The debtor's writ may prove resting-owing, where that 
 is the fair inference from it, although its words do not expressly 
 admit the fact (e). For example, where the factor for the defen- 
 ders wrote a letter to the pursuer's agent stating that there was an 
 old claim against his constituents by the pursuer, " which certainly 
 ought to be adjusted and settled ; and it will be as agreeable to 
 them and their agents as it can be to the pursuer, if this can be 
 done"; the Court hold that the letter admitted that the debt had 
 not been discharged ; and tlioy remitted to the Lord Ordinary to 
 ascertain it^ amount, which, according to the letter, was really the 
 
 (y) Clyne v. Snody, 1830, 8 S., 1004. (z) Supra, ? 506. 
 
 (a) Supra, (> 443. {b) 1 Bell's Com., 332. As to a writing datod on the 
 
 last day of the three years, see supra, § 447. (c) M'Laren v. Bulk, 1829, 7 
 
 S., 483. But it would seem that the date may be proved by extrinsic evidence to have 
 been after the three years ; Watson v. Johnstone, 1846, 18 So. Jur., 598 ; affirmed on 
 another point. 6 Boll's App. Ca., 245. (d) See supra, g 493, ei seq. 
 
 (e) " The Act has received a very liberal interpretation in regard to proof of resting- 
 owing by writ ; and I think that now, if any person wishes to plead this prescription, he 
 had bctti-r not write at all, but maintain an absolute silence "; per Lord Fullerton in 
 Macandrew v. Hunter, 1851, 13 D., 1114. 
 
 9 In an action by the trustee of an agent against a clii-nt, the client pleaded pre- 
 scription, and deponed on oath that he had employed the agent in a process on the foot- 
 ing that the agent was to bo paid only if the civse was won ; which it was not. It was 
 lield that the oath was negative ; Kno.v v. M'C'aul. IStil. 24 !»., 16.
 
 344 TRIENNIAL PRESCRIPTION. § 509- 
 
 point in dispute (/). So where the debtor, in answer to letters 
 from the creditor threatening legal proceedings for the debt, wrote 
 to him that he would attend to it in the course of a few weeks at 
 farthest, and hoped the creditor would put himself to no farther 
 trouble about it, the Court held that resting-owing Avas proved by 
 the A^Titen promise of payment after the three years had expired (g). 
 So in an action for payment of a law-agent's account after prescrip- 
 tion, where the constitution of the debt was proved by the writ of 
 the debtor within the three years, resting-owing was held to be 
 proved l>y his letter, dated after that period, which, referring to the 
 creditor's demand for paj^nent, reminded him of the w^ay in which 
 the employment had been undertaken, and added, " I do not hold 
 myself liable, and decline to recognise any claim by you against 
 me" (Ji)}" 
 
 § 510. The mere fact that the books of the debtor do not con- 
 tain an entry of payment of the debt (how^ever important that cir- 
 cumstance might be, if a proof at large were admissible) does not 
 satisfy the statutory requirement of proving the debt by the debtor's 
 writ (^■). A distinction, however, has been taken on this point be- 
 tween the books of the debtor himself and those of one who acts as 
 treasurer, cashier, or the like, of the debtor, when a corporation or 
 similar body. Thus where the debtor was a burgh, the want of an 
 entry of payment in the books of the treasurer was held to prove 
 resting-owing against the corporation (k). And where a state of 
 the affairs of a sequestrated bankrupt, made up by an accountant 
 under the authority of the creditors, before the three years, had ex- 
 pired, bore that the pursuer's account was due for furnishings to the 
 
 (/) Smith V. Falconer, 1831, 9 S., 474. Tlie factor's writ was held to bind the con- 
 stituent, owing to the nature of the factor's employment. (ff) Stevenson v. 
 Kyle, 1850, 11 D., 1086 ; 12 ib., 673. (A) Macandrew v. Hunter, 1851, 13 D., 
 1111. (^') Cuming's Tr. v. Simpson, 1825, 3 S., 545. The Court seem to have 
 taken the same view in Black v. Shaud's Crs., 1823, 2 S., 119 (3d objection). But see 
 Berry's Tr. v. Bogle, 1822, 1 S., 402 (new ed.), the report of which is very unsatisfac- 
 tory as to the grounds of decision. {k) Leslie v. Magistrates of Brechin, 15th 
 November 1808, F. C— Muirhead v. Town of Haddington, 1748 (Kilkerran's Report) 
 M.. 2507. 
 
 10 In an action in 1854 for the price of furnishings in 1844, the defender pleaded 
 prescription, and the pursuer in reply founded on the following passage in a letter 
 written to him by the defender in 1848, — " The number of gallons is correct ; but I am 
 charged about Is. 6d. per gallon more than the agreed price." The subsistence of the 
 fbbt aftf-r the three years was held to be proved by writ, and jiroof proni dej'ure of its 
 amount was allowed; Fife r. Innos. 1860. 23 D., 30.
 
 § 512. TRIENNIAL PliESCRIPTION. 345 
 
 estate, and the trustee's books did not contain any entry of payment, 
 the subsistence of the debt was held to be proved (/). 
 
 § 511. These cases were decided before the leading case of Al- 
 cock V. Easson (m), where the Court, led by the Lord Justice-Clerk 
 Hope, returned to an accurate construction of the statute 1579, c. 83. 
 More recently, where the trustee on a sequestrated estate died 
 shortly after the last item of an account incurred to the law-agent 
 whom he had employed for the estate, and where no successor had 
 been appointed to the trustee, and no procedure had taken place in 
 the sequestration (which was still subsisting) after his death ; in an 
 action by the law-agent against the creditors on the estate, the 
 Court held that resting-owing was not proved by the want of an 
 entry of payment in the books of the trustee (w). Three of the 
 learne<l judges who decided this case adojited the judgment in the 
 previous case of Leslie v. the Magistrates of Brechin (o), but refused 
 to extend the rule there followed to the circumstances of the case 
 before them. But the Lord Justice-Clerk took a broader view, and 
 challenged the previous decision (jo). His Lordship observed, — 
 " Under the statute the debt is to he proved by the lurit of the debtor. 
 The absence of entries of payments where one might expect to find 
 them — in the books in which they ought to have been entered or 
 made — may create the strongest suspicion or moral belief that the 
 debt was not paid. But is not that mistaking what the statute re- 
 quires ? which is, that the debt shall be proved to be still due by the 
 ivrit — that is, the actual writ, acknowledgment, entry, or other 
 marking which positively establishes it to be unpaid." According to 
 the case of Leslie and the older case of Muirhead (q), the absence 
 of an entry of payment necessarily implies both that payment was 
 not made by the treasurer or by any other person on behalf of the 
 burgh, and that the debt was not discharged by compromise, trans- 
 action, or in any other way. It is thought that such an inference 
 is not warranted by a proper construction of the statute. 
 
 § 512. Payments of interest on the debt, and payments to ac- 
 count of principal, after the three years have expired, are held to 
 prove resting-owing, iiruvided they are instructed by the writ of the 
 
 (/) Buchanan v. Mags, of Dumfermline, 1828, 7 S., 35. But where the treasurer of 
 a burgh had not kept books, and certain accounts in his possession relative to the matter 
 in issue did not contain entries of papnent of the account, the Court sustained the de- 
 fence of prescription in favour of the burgh ; Ker v. Mags, of Kirkwall, 1827. 5 S., 802. 
 
 (m) Alcoek r. Ea.^son, 1842, 5 D.. 360. (n) Ellis v. White, 184t>. 11 D.. 
 
 1847. (o) Supra (k). {p) See also his Lord.ship"s remarks in Cullen 
 
 i: Sniral. 15 D.. 878. 4. (q) Sapra (fc).
 
 346 TIUENNIAL TEESClUrTlON. § 512- 
 
 debtor. But payments which were either made within the pre- 
 scriptive term, or which are proved by the creditor's writ, are in- 
 sufficient for this purpose (r). And in regard to payments to ac- 
 count of principal, it will be observed that the debtor's writ must 
 prove that they were made as such ; for a mere payment of a part 
 of the sum originally due, not being a payment to account, does 
 not infer that the difference is resting-owing (s). 
 
 § 513. Where a prescribed account appeared in a state of debts 
 which had been prepared by the trustee under a trust-deed for be- 
 hoof of the alleged debtor's creditors, resting-owing was held not to 
 be proved by the entry, as that was not shown to have been autho- 
 rised by the debtor {t). But the writ of a person authorised to 
 bind the debtor mil meet the requirement of the statute {u)}^ 
 
 § 514. Where action on a prescribed account was raised in a 
 Sheriff-court, and the Sheriff decided that the pursuer had failed to 
 establish the debt l)y the defender's writ, and afterwards held the 
 oath emitted by the defender on a reference to be negative ; and 
 where the pursuer having advocated against these judgments, the 
 Lord Ordinary held that he had failed to establish either the con- 
 stitution or the subsistence of the debt by the defender's oath ; and 
 the pursuer reclaimed against that judgment, and prayed the Court 
 to find the oath affirmative of the reference ; the Court held that he 
 was not entitled to contend before them that the debt had been 
 proved by the defender's writ {iv). 
 
 § 515. When the pursuer's proof of the subsistence of the debt 
 depends on the defender's oath, the same rules apply as in cases on 
 the sexennial prescription {x) ; namely, that the defender is not 
 entitled merely to depone "not resting-owing"; but must specify 
 the grounds on which his general denial is founded ; and the Court 
 will only give effect to his denial, when they consider it to be sup- 
 ported ])y the detailed statement {y). 
 
 § 516. If, however, the debtor depones that he paid the debt, 
 
 (r) See the cases cited supra, g 450. {s) See Damley v. Kirkwood, 1846, 
 
 8 D., 441, particularly Lord Mackenzie's oiiinion. [t) Fyfe v. Miller, 1837, 
 
 15 S., 1188. (m) See Leslie v. Mag. of Brechin, supra, \ 510 — Buchanan v. 
 
 Mag. of Dunfermline, supra, ib. — M'Andrew v. Hunter, 1851, 13 i)., 1111. See also 
 cases noted supra, \ 451, and in the chapter on admissions by factors and trustees. 
 
 (w) Meyer & Mortimer v. Lennard, 1851, 14 D., 99. (z) Supra, § 453. 
 
 {y) 1 Bell's Com., 333— Callander v. "Wallace, 1717, M., 941G— swjom, g 453, et seq. 
 
 '1 The rninute of a meeting signed by the chairman is the writ of the chairman ; 
 and, probably, in some circumstances, may be the writ of those who attend the meeting ; 
 Johnston v. Scott, 1860, 22 D.. 393.
 
 § 518. TRIENNIAL I'HESCIIIPTION. 347 
 
 but cannot specify the time or circumstances, liis oath will Ijc held 
 not to prove resting-owing (z). Nor does the oath prove the sub- 
 sistence of the debt, where the del)tor depones that he did not pay 
 liimself, if he states that he took proper steps for securing i)aynicnt 
 through the medium of a third person ; and in such a case it is not 
 necessary that he should depone that payment was actually made 
 to the creditor by the person so interposed («). Thus wliere a de- 
 fender deponed that he believed the account sued for had been 
 paid, because he had given money to his manager for the purpose, 
 but that he " did not know of his own knowledge " that the mana- 
 ger had paid the pursuer accordingly, and that he was not aware of 
 having seen any voucher for the payment, the Court held that the 
 oath did not prove resting-owing (b). And they took the same 
 view in an action for payment of an apothecary's account, where 
 the defender deponed that he gave his late wife money to pay his 
 accounts, and particularly the one sued for ; and that she told him 
 she paid them accordingly (c). This principle was recognised in 
 another case, where, however, the Court seemed inclined to draw a 
 distinction between the debtor's oath that he had given money to 
 his factor or wife to pay the account, and his oath that he had 
 handed money to a friend or special mandatory for the same pur- 
 pose. But this case (d), and another (e), in wdiich the same point 
 was raised, were compromised before decision. 
 
 § 517. In like manner resting-owing is disproved by the debt- 
 or's oath that he paid to a person having the creditor's authority to 
 receive the money, e.g., his partner (/), or some one who appears 
 from the circumstances to have been authorised to receive pay- 
 ment {(j). But where the defender deponed that ho had paid to 
 the pursuer's traveller, w^ithout seeing that that person had written 
 authority to receive payment, and without seeing other debtors of 
 the pursuer pay to him, resting-owing was held to be proved ; be- 
 cause the only alleged payment had been to one whose discharge 
 was not binding on the creditor (//). 
 
 § 518. Where the debtor depones that payment was made by 
 his factor or agent, and that his knowledge of the fact is derived 
 from that person's books or accounts, these will be held as imported 
 into the oath ; and if they prove resting-owing, the Court will de- 
 
 (z) See siipra, \ 454. (a) See supra, ? 454, et seq. (h) Mackay 
 
 V. Ure, 1849, 11 D., 982. (c) Stirling v. Stewart, 1797, 4 B. Sup., 383. 
 
 (d) Mette V. Ualziel, 1830, 8 S., 387. (e) Goodal r. Newton. 1825, note 
 
 to 8 S.. 387. (/) Nicolson v. Murray, 17i>2, M.. 13,211. (ff) Roy v. 
 
 Thomson, 1830, 8 S., 810. (h) Smith v. Ivory, 1807, Hume D.. 4C2.
 
 348 TRIENNIAL PRESCRirTION. § 518- 
 
 fide accordingly (/). But tlic debtor's deposition that he paid by 
 the hands of another person {e.g., his factor), does not devolve the 
 question of resting-owing to the oath of that person, or make a re- 
 ference to his oath competent {k). 
 
 The competency of referring to the oath of a praepositus or 
 general manager is considered afterwards (?). 
 
 § 519. With regard to oaths that the debt has been compen- 
 sated, or has been extinguished by transaction, compromise, re- 
 nunciation, and the like, the same rules apply as in cases of the 
 sexennial prescription (m). 
 
 If the defender, admitting that the account is unsettled, states 
 on record, or in his oath, that the charges are extravagant, or that 
 the proper amount has been covered by partial payments, the Court 
 will hold that the oath proves the su])sistence of an unsettled claim, 
 and will ascertain whetlier any and what balance is due by means of 
 a proof, or a remit to persons in tlie pursuer's trade or business (n). 
 
 III. Admissions hy the Debtor's Representative. 
 
 § 520. Until recently, the law as to the application of the tri- 
 ennial prescription in actions against the original debtor's lieir, was 
 in an unsatisfactory state. According to the plain meaning of the 
 act 1579, the creditor in a prescribed account is entitled to prove 
 the debt — that is, both its constitution and subsistence — only by 
 the writ or oath of his party ; and, therefore, if the action is against 
 the heir of the original debtor, the proof of these facts must be by 
 the heir's writ or oath. This rule was followed without distinction 
 in several older decisions (o) ; and its application has not been ques- 
 tioned in cases where the original debtor survived the three years. 
 
 § 521. But in regard to cases where the original debtor had 
 died before the whole three years had terminated, the rule referred 
 to Avas overturned by a case which occurred in 1808. In that 
 case {p) an action was raised by the heir of Leslie, a law-agent, 
 against the son and heir of Mollison, for an account incurred in de- 
 
 (j) Cooper V. Hamilton, 1826, 2 S., 728 ; affirmed 2 W. S., 59— Mackay v. Ure, 1847, 
 10 D., 89. {k) Mackay v. Ure, 1849, 11 D., 982. {I) See chapters 
 
 on oaths on reference. (m) Supra, ? 45(), et scq. (n) Bryson v. Ayton, 
 
 1825, 4 S., 180— Tunibull v. Borthwick, 1830, 8 S., 735— Smith v. Falconer, 1831, 9 
 S., 474— Ritchie v. Little, 1836, 14 S., 216— Napier v. Smith, 1838, 1 D., 245— Steven- 
 son V. Kyle, 1850, 12 D., 673. {o) Orel v. Duti's, 1630, M., 11,083— Wilson v. 
 Tours, 1680, M., 11,089— Thomson v. E. Linlithgow, 1708, M., 11,093— Cockburn t>. 
 Hamilton, 1712, Rob. App. Ca., 32— Forrest v. Carstairs' Children, 1715, M., 11,098— 
 Douglas V. D. Argyle, 1736, M., 11,102— Douglas v. Grierson. 1794, M.. 11,116. 
 
 (/)) Leslie v. Mollison, 15th November 1808, F. C.
 
 §521. TRIENNIAL FRKSCP.Il'TION'. 340 
 
 icuding an action aii;aiiist ]\Ii)llis(iii. in \vlii<li his son had Itoeusistod 
 as a party ; a considerahh; I'lut ^>l' thu account liavini;- thus Leen 
 incurred for Imsiness on lidiall' of the defender jiersonally. The 
 defender did not deny that the business bad been done ; but lie 
 said he believed the account, in so far as it was dated prior to his 
 father's death, had l)een i)aid l)y his father; and he pleaded the tri- 
 ennial prescription. Keference having then been made to his oath, 
 he deponed that he did not know whether the account had been 
 incurred by his father or not ; that he believed his father had paid 
 that and every other account he had incurred to his late law-agent, 
 as he had often heard his father say that Mr Leslie was indebted to 
 liini, liut tliat he (the defender) did not know that any settlement 
 had ever taken place between them. On considering this deposi- 
 tion the Lord Ordinary repcdled the defence of prescription. The 
 defender having reclaimed, it was observed l)y the Lord President 
 (Blair) that, " if the act 1579, c. 83, established a presumption that 
 accounts were paid during the currency of them, then the deposi- 
 tion in the present case would afford no proof to elide such pre- 
 sumption. But that act establishes no such presumption. The 
 presumption it creates is, that the account has l)een paid during the 
 years that have run since it was closed. On that presumption the 
 prescription of that act rests. Now that is taken off by the depo- 
 sition, which shows that this account has not been paid since it was 
 closed ; and therefore there is no room for the prescription in this 
 case." On these reasons (the report bears) the Court unanimously 
 adhered to the Lord Ordinary's interlocutor.^ The opinion thus 
 quoted received support from several cases (r) ; and, so late as July 
 1842, the First Division of the Court held that the triennial pre- 
 scription " did not apply " to a case where the original debtor had 
 died during the currency of the three j-ears, and his heirs admitted 
 that they had not jiaid the account (.s). Tliis decision, however 
 (which altered the interlocutor oi' the Lord Ordinary), seems to have 
 gone chiefly, if not entirely, upon the supposed conclusiveness of 
 
 (t-) Broughton v. Weston, 1826, 4 S., 496— Elder v. Gray, 1833, 11 S., 591— Ritchie 
 V. Little, 1836, 14 S., 216— Grubb v. Porteous, 1835, 13 S., 603— Per Lord Moncrieff in 
 Stewart i'. Scott, 1844, 6 D., 894. (s) Auld v. Aikman, 1842, 4 D., 1487. 
 
 12 The statement in the text of the case of Leslie v. MoUison seems not exactly ac- 
 curate. The account sued for, as appears from the Session papers, was a continuous 
 account, bearing to have been incurred in part by Mollison during his life, and partly 
 by the defender, the heir of MuUison, after MoUison's death. But the defender deponed 
 on his oath on reference, that before Mollison died, and before he, the defender, was 
 sisted in the process, Leslie had cea.std to be the agent, and that the process was 
 brought to a conclusion by anotlicr agent ; and so that no part of the account incurred 
 in the process after MoUison's death was incurred to liC^lie.
 
 350 TRIENNIAL PRESCRIPTION. § 521- 
 
 previous decisions ; and, since the introduction of the more accurate 
 views on the shorter prescrii)tions, its correctness in principle has 
 been more tlian once impugned (t). 
 
 § 522. The question was at last brought before the whole 
 Court (?<) , when their Lordships unanimously held that the doctrine 
 introduced by Lord President Blair, with its consequent decisions 
 and dicta, was erroneous. It has thus been definitely settled that 
 where the creditor in an account sues the heir of the debtor after 
 three years from the close of the account, he must prove by the 
 heir's writ, or oath, both the constitution and the subsistence of the 
 debt ; whether the original debtor died during the currency of the 
 three years, or after they had terminated.^^ 
 
 CHAPTER VI. — OF INTERNATIONAL QUESTIONS OF PRESCRIPTION. 
 
 § 523. Where an obligation lias been entered into, or is pres- 
 table in a foreign country, or where the contracting parties have 
 resided abroad for a number of years, the question may arise, 
 Whether effect is to be given to the corresponding Scotch or foreign 
 prescription ? 
 
 § 524. The first rule on this head is, that " Questions concern- 
 ing the prescription of heritage must be governed by the law of the 
 place where the heritage lies, and from which it cannot be re- 
 moved" (a). 
 
 § 525. Moveable rights and obligations, however, having no 
 fixed locus, the prescriptions relating to them are subject to differ- 
 ent rules on this point according to their several characters. They 
 will be considered under the following heads (6) : — 
 
 (t) Per Lord Fullerton in Auld v. Aikman, supra— Per curiam in Paxton v. Forster, 
 1842, 4 D., 1515— Darnley v. Kirkwood, 1845, 7 D., 595— Per Lord Mackenzie in Mac- 
 douall V. Loudon, 1849, 12 U., 170. (n) Cullen v. Smeal, 1853, 15 D., 868. 
 
 The judges' opinions in this case contain a full analysis of all the previous cases. The 
 same view is supported Ly the cases of Ferrier v. E. Errol, 9tli July 1811, F. C— and 
 Stewart v. Douglas, 1823, 2 S., 226— which are noticed in Lord Rutherfurd's opinion 
 in Cullen v. Smeal. {a) Ersk., 3, 7, 49— Voet., Lib. 44, Tit. 3, § 12. The 
 
 term "heritage " will only include land and its accessories, not moveable rights which 
 are heritable destinatione. {b) See the general classification of prescriptions, 
 
 supra, 402. 
 
 13 But " ' his party ' jilainly includes both the immediate debtor and the representa- 
 tive, where the action is brought against tlic representative ; and this, the just construc- 
 tion, is that which the statute has received in practice ;" per Lord Rutherfurd in Cullen 
 V. Smeal, 1853, 15 D., 882.
 
 § 527. INTERNATIONAL QUESTIONS OF PRESCRIPTIONS. 351 
 
 1. rrcscij|tti(iiis wliicli do nut iifiVct the right ur uliHgution, hut 
 only the mode of ciiloiciiig it ; and which operate hy limiting the 
 right of action or the proof; e.g., the shorter prescriptions ahove 
 noticed. 
 
 2. I'husc wliicli ahsolutely extinguish the o1)ligation by an ex 
 post /<i(f<j (Iteration, and not through the medium of an ini])lied 
 condition limiting its duration ; e.g., the long negative prescription. 
 
 3. Tliose which enter into the obligation at the outset, as im- 
 plied conditions limiting its endurance ; e.g., the septennial limita- 
 tion of cautionary obligations. 
 
 § 526. The law on the first of these classes of prescriptions has 
 been settled by a judgment of the House of Lords, proceeding upon 
 a learned and elaborate opinion of Lord Brougham. The question 
 arose on the following facts. On 13th October 1809, Sir Alexander 
 Don, then a prisoner in France, accepted two bills at four months' 
 date, drawn by Fagan and payable to Lippmann, tlie place of pay- 
 ment not being specified. He returned to Britain in 1810, before 
 the bills became payable, and remained in this country till his 
 death in 1826. After the bills fell due, and about four months after 
 Don's return, Lippmann adopted proceedings in the French Courts 
 against him and Fagan. These proceedings were sufficient, accord- 
 ing to the law of France, to interrupt the French prescription (if 
 applicable to the bills), and they resulted in a decree in absence, 
 which would not prescribe for thirty years. In 1829, nineteen 
 years after the date of the bills, Lippmann raised action in Scotland 
 against Don's heir, libelling on the bills and decree. The defender 
 having pleaded the sexennial prescription, the Court of Session 
 held that it did not a])ply to the circumstances of the case. But 
 the House of Lords reversed the judgment, and decided that efi"ect 
 must be given to the sexennial prescription. Some discussion 
 arose in the Court of Session as to whether France or Scotland was 
 to be lield the locus solutionis ; but in the House of Lords it was 
 admitted to be France, which was the place of acceptance (c). 
 
 § 527. The ground un which the Court of Session proceeded in 
 this case was, that the debt having been contracted in France, was 
 subject to disc-harge in accordance with the lex loci contractus, and 
 that prescription was in efi'ect a discharge vi Juris. Consequent!}', 
 as the Frencli prescription had l)een excluded by the French de- 
 cree, the debt had been kept alive, and was not subject to the Scotch 
 sexennial prescription. 
 
 (c) Don V. Lippmann, 1837, 2 Sh. and M'L., 682, 723, 728 ; reversing 14 S.. 241.
 
 3o2 INTERNATIONAL QUESTIONS OF PKESCRIPTION. § 027- 
 
 Lord Brougham exposed the fallacy of this reasoning. His 
 Lordship observed, "Whatever relates to the nature of tlie obligation 
 — ad valorem contractus — is to be governed by the law of the coun- 
 try where it was made, the lex loci; whatever relates to the remedy 
 by suits to compel performance or by action for a breach, ad decisio- 
 nem litis, is to be governed by the lex fori — the law of the country 
 to whose Courts the application is made for performance or for 
 damages. This principle was the ground of the decision in the 
 British Linen Company v. Drummond {d) ; and it has been since 
 folloAved in other cases ; as De La Vega v. Vianna (e), and in Trim- 
 bey V. Vignier (/), and Huber v. Stenier ((/). But it had been re- 
 cognised long before the case of the British Linen Company v. Drum- 
 mond, particularly in Williams v. Jones {li), upwards of twenty 
 
 [d) British Linen Company v. Drummond, 1830, 10 Barn, and Cress., 903. Here 
 an obligation which liad been entered into in Scotland, where the plaintiifs carried on 
 business and the defendants resided, being sued upon in England after six years from 
 its date, the Court of King's Bench held that the case fell within the English sexennial 
 limitation, and that the obligation was not kept in force for forty years, the term of pre- 
 scription applying to it by Scotch law. 
 
 (e) In De la Vega v. Vianna, 1830, 1 Barn, and Adol., 284, it was held by the Court 
 of King's Bench that where foreigners who had had transactions in Portugal came to 
 England, and one of them caused the other to be arrested for the debt accruing on their 
 transactions, the latter was not entitled to be discharged from custody, because by the 
 law of Portugal he was not subject to arrest for the debt. The Court distinguished be- 
 tween the interpretation of the contract, which must be by the lex loci contractus, and 
 the remedy, which is regulated by the lex fori debitoris. 
 
 (/) In Trimbey t». Vignier, 1834, 1 Bing. New Ca., 151, a blank indorsement in 
 France of a bill drawn there was held by the Court of Common Pleas not to have trans- 
 ferred the property of the bill, because by the law of France it had not that effect. 
 Chief-Justice Tindal observed, in giving judgment, " the rule which applies to the case 
 of contracts made in one country and put in suit in the courts of law of another country 
 appears to be this, that the interpretation of the contract must be governed by the law 
 of the country where the contract was made {lex loci contractus), the mode of suing and 
 the time within which the action must be brouglit must be governed by tlie law of the 
 country where the action is brought {in ordinandis judiciis loci consuetudo, uhi agitur) ." 
 His Lordship referred to Huber, De Conflictu Legum, (Praelec, vol. 2, tit. 3, sect. 7), and 
 to the cases of the British Linen Co. v. Drummond and De la Vega v. Vianna, supra. 
 
 {g) In Huber v. Stenier, 1835, 2 Bing. New Ca., 202, promissory notes made in 
 France were held by the Court of Common Pleas not to be subject to the French quin- 
 quennial prescription, which only applied to the tempus et modum actionis instituendae. 
 
 {h) In Williams v. Jones, 1811, 13 East., 439, an action for repayment of money 
 expended on behalf of the defendant in India was sustained in the Court of King's 
 Bench in England after six years, because the Englisli statute of limitations excepted 
 cases where the defendant had been beyond seas during the statutory term ; and the 
 action was held not to be barred in consequence of the defendant having resided in 
 India for six years after the cause of action arose, which residence had rendered action 
 for the debt incompetent in India.
 
 § 528. INTERNATIONAL QUESTIONS oK PRESCRIPTION. 353 
 
 years 'd'j^o; which, iiiilc('(l, cduM init well stjiml iipni) aii}' otlier 
 ground. Then, as,siiiiiiii.L;' this to l)u the setth.'(l rule here, tlie only 
 question is. Whether the Hniitution of action hehjii^s to tlie contract 
 or the remedy ? But some of these cases also decide that (juestion. 
 It is determined affirmatively hoth in the British Linen Company 
 V. Drummond and in Iluher v. Stonier; it is assumed as clear in 
 Williams v. Jones." 
 
 The learned lord tlien disposed of the argument tliat statutory 
 limitations of the mode of proof are of the nature of the contract, 
 and nijt merely of the remedy; and he observed, "The parties looked 
 to performance only, and to the time of performance; the argument 
 supposes them to have looked to a breach. The contract was to 
 pay at a certain time ; and if a breach was at all in contemplation, 
 and a secondary undertaking was engrafted upon that contingency, 
 it could only be an undertaking to answer for the consequences 
 generally of the breach, the damage arising from the breach, and to 
 be liable until it was made good. But nothing can be more violent 
 than the supposition that the breach of the contract is in the con- 
 templati(tn of the parties, and, indeed, nothing more contrary to 
 g\X)d faith. It is supposing that when men bind themselves to do a 
 certain thing, they are contemplating not doing it, and considering 
 how the law will help them in the non-performance of a duty." 
 
 § 528. Lord Brougham's exposition of the law is supported by 
 several previous Scotch cases (i), and by the opinions of Scotch and 
 
 (?) The Scotch yjrescription, being that of the lex fori, was sustained in the following 
 cases: — In Hay's Exrs. v. E. Linlithgow, 1708, M., 4504, the triennial prescription was 
 sustained in an action for payment of an account incurred in London by a domiciled 
 Scotsman. In Robertson v. Marquis of Annandale, 1740, Cr. and St., 293, an action 
 for payment of wages of a servant hired by a Scotsman in London being raised in Scot- 
 land four years after they were payable, the Court of Session and House of Lords held 
 that they fell under the Scotch triennial proscription, and did not subsist during the 
 currency of the English sexennial limitation. In Randal v. Innes, 1768, M., 4520; 5 
 B. Sup., 541 ; Hailcs, 225, S. C, the triennial prescription was applied in an action for 
 furnishings in England to an artillery oflicer, who had resided in Scotland from the 
 close of the account till his death five years afterwards. In Ker v. E. Home, 1771, M., 
 4522; 5 B. Sup., 541 ; Hailes, 408, S. C, the triennial prescriiition was ajiplicd to an 
 action for rent of a house in London ; the Court being " a good deal moved " by the 
 defender's having a house in Scotland, which fixed a domicile, and rendered him 
 amenable to the Courts of this country. In Barret v. E. Home, 1772, M., 4524 ; 5 B. 
 Sup., 541, S. C, the same decision was repeated, in an action for furnishings to the 
 same party while in London. The point was again decided in Thom.sou v. Duncan, 
 1808. Hume D., 406, which was an action for furnishings in London to a Scotsman 
 occasionally there. In Campbell v. Stein, 23d Novtmber 1813, F. C, the triennial pre- 
 scriplicin was iii)plied to an action by an English solicitor, for payment of his account 
 
 VOL. I. Z
 
 354 INTEENATIOXAL QUESTIONS OF PRESCRIPTION. § 528- 
 
 foreigu jurists of cmiuence (J), as well as Ly the English decisions 
 already noticed. It has been followed as a leading decision ever 
 since it was pronounced (k); and the previous conflicting cases, 
 which are analysed and refuted in Lord Brougham's opinion (l), 
 must now be regarded as over-ruled. Accordingly, where a Scotch 
 banking company, having an agency in England, entered through 
 their agent into transactions with a party, on which a balance arose 
 in their favour; and where in part payment of the balance the party 
 delivered goods to the bank agent, by whom they were sent to 
 Scotland, the price having been received by the bank ; and where, 
 on the bankruptcy of the party, the balance claimed from his estate 
 by the bank was held in the English Courts to be an illegal debt, 
 as arising out of transactions struck at by the Bank of England 
 statutes ; an action for repetition of the price of the goods havnig 
 then been raised in this country by the bankrupt's assignee against 
 the banking company, more than six years after the date of the 
 
 for business conducted for a domiciled Scotchman in an appeal case in the House of 
 Lords ; and this decision was affirmed on appeal ; Lord Chancellor Eldon observing 
 that it had been ruled that "where the merchant creditor resides in England, and hia 
 debtor in Scotland, the latter may plead the triennial prescription." In Broughton v. 
 "Weston, 1826, 4 S., 496, it was agreed by the parties and the Court tliat an account 
 incuiTed in England by a Scotchman resident there, was subject to the triennial pre- 
 scription. 
 
 The prescription of the lex loci contractus was held not to apply in the following 
 cases: — Robertson v. Marq. of Annandalc, supra. In Garden v. Ramsay, 1664, M., 
 4503, a bond granted in England being prescribed by English law while the parties re- 
 sided there, was sustained as the ground of action in Scotland, in respect it was drawn 
 in the Scotch form between Scotchmen, and bore a clause for registration and execu- 
 tion in Scotland. In Rogers v. Cathcart, 1732, M., 4507, a bill drawn in Virginia by a 
 Scotch supercargo on his constituent in Scotland and payable there, being pursued upon 
 after six years, the Court refused to apply the limitation existing in Virginia. In Mac- 
 neil V. M'Neil, 1761, M., 4517, a bill accepted and payable in Ireland was held not to 
 be subject to the Irish statute of limitations, the defender (a Scotchman) not having re- 
 sided in Ireland during the statutory period. In Ross v. Ross, 1811, Hume D., 473, the 
 same rule was applied in an action for repayment of money advanced in England— and 
 in Banner v. Gibson, 1830, 9 S., 61, in an action for an accounting, where tlie liability 
 to account had arisen in England. In both of these cases the debtor had left England 
 during the currency of the statutory period. 
 
 It will be observed that most of the cases thus noticed were partly decided on the 
 specialities of the debtor's real domicile, or his non-residence during the statutory period. 
 {/) Ersk., 3, 7, 48— Kames' Equity, 3, 8, 6— Bnrge, Com., vol. 3, p. 878— Story's 
 Confi. of Laws, ? 576, et seq.—Voet, Lib. 44, Tit. 3, g 12— Huber de confiictu legum 
 (Praelectiones, torn. 2), Lib. 1, Tit. 3, ? 7. {k) See Farrar v. Jolmstone, 1839, 1 
 
 D., 949— Robertson v. Burdekin, 1843, 6 D., 17— Alexander v. Badenach, 1843, ib., 326 
 — Strathern v. Masterman & Co., 1850, 12 D., 1087— «/;»•«, ?^ 365. (0 2 Sli. 
 
 and M'L., 731, et seq.
 
 § 532. INTKRXATfOXAL QUESTIONS OF PRESCRIPTION. 355 
 
 liuiisactidii ; llic; ('(jurl JiuJii it iiiiuiji|)(;ieiit lui' llu' (k-leudcrs to })lca(l 
 the English statute of limitations, heing of oi)inion that the lex fori, 
 and not the lex loci contractus ought to regulate in regard to the 
 plea of prescription (m). In this case, therefore, the transaction 
 which raised the (Question took place in England ; yet the English 
 statute of limitations was held not to affect its legal consequences 
 when proscTuted in a Scotch Court. 
 
 § 529. The ])rinciples expounded l>y Lord Brougham are in ac- 
 cordance with the statutes wliicii enact the short prescriptions in 
 this country, ami whieh make it imi)erative on the Court to a])ply 
 them to their appropriate writings and obligations, whether the locns 
 contractus he Scotland or a foreign country. 
 
 § 530. U])on tliese authorities it may now be laid down as 
 settled law that a foreign contract or obligation, when sought to lie 
 enforced in this country, is subject to such Scotch prescriptions as 
 merely limit the mode of j^roof or the right of action ; and that on 
 the other hand the Scotch Court is not bound or entitled to give 
 effect to a prescription of either of those natures prevailing in the 
 lex loci contractus. Moreover, the application of this rule does not 
 depend on whether the debtor resided in this country during the 
 prescriptive period. 
 
 § 531. At the same time, the fact that the debtor liad dwelt in 
 a foreign country during the period of prescrii)tion prevailing there, 
 although it does not entitle the Court of his sul)sequent domicile to 
 give effect to the foreign prescription, seems to raise a presumption 
 of payment ; because it is probable tliat the creditor did not delay 
 prosecuting his right until prescription had run against him. But 
 this presumption will yield to contrary proof or inferences from the 
 circumstances (w). 
 
 § 532. The law is not yet established regarding the international 
 effect of prescriptions which extinguish the debt, but do not, as by 
 an imphed condition, limit its endurance. The correct rule seems 
 to be, that if the obligant has resided in the locus contractus durin<»- 
 a time sulKcient to have entirely extinguished the obligation vi Juris 
 in that country, it will not revive on his removal to another countrv 
 where a similar i>rescription does not exist. This is the view of 
 Judge Story (o) ; whose observations arc repeated with approval bv 
 
 (m) Farrar v. Leith Banking Company. 1839. 1 D.. !)3G. („) Karnes* Equity 
 
 3, 8, G-Ersk., 3, 7, 48— York Buildings Co., 1783, M., 11,403. ,o) Storvs 
 
 Confl. of Laws, 582. 
 
 z 2
 
 3^0 INTERNATIONAL QUESTIONS OF PRESCRIPTION. § 532- 
 
 'Mr Bur2,-e (j))- It is favoured b}'- tlie decision of Huber v. Stenicr (r); 
 Avliere Lord Chief-Justice Tiudal carefully distinguished between a 
 foreign prescription which extinguishes the right, and one which 
 merely strikes at the remedy ; and held that the foreign prescri])tion 
 pleaded in that case was of the latter class. Lord Ellenborough in 
 deciding Williams v. Jones (s), wdiere effect was refused to a foreign 
 limitation of the right of action, observed, " If it go to extinguish- 
 ment of the right itself, the case may be different." And Lord 
 Brougham in his admirable opinion in Don v. Lippmann (t), ob- 
 served, "There is no occasion to question the doctrine laid down by 
 Dr Story in his able work, and approved of by the Court of Common 
 Pleas in Huber v. Stenier, that if the lex loci contractus makes the 
 obligation wholly void after a certain time, and if the parties have 
 resided within the jurisdiction during the whole of that period, it 
 may be taken as the guide of the Court where the action is brought. 
 This may be true, and yet leave the present question (as to prescrip- 
 tions affecting only the remedy) wholly untouched." 
 
 The supreme Court of the United States has decided the point 
 in accordance with Mr Story's views {u). 
 
 § 533. But while it would appear that the extinction of the 
 debt by the party's residence in the locus contractus during the pre- 
 scriptive period there recognised, should be effectual on his removal 
 to any other country, a party cannot shake himself free from his 
 obligation entered into in one country, by removing to another 
 country and residing there during the years of a prescription which 
 would have extinguished the debt, if that country had been the locus 
 contractus; but the debtor when sued in the locus contractus will 
 be liable so long as the debt is in subsistence according to the law 
 there prevailing. This principle was fully recognised in the fol- 
 lowing case, which involved a curious question as to the subsistence 
 of the debt against the foreign successor of the original debtor («). 
 
 § 534. A party contracted debt in Scotland, and was seques- 
 trated. He afterwards went to Eussia, where he resided for more 
 than ten years until his death ; and he left a fortune there, to which 
 
 {p) 3 Burge Com., 883. (r) Huber v. Stenier, 1835, 2 Bing. New Ca., 210, 
 
 supra, 'i 527. (s) Williams v. Jones, 1811, 13 East., 449, snpra, ib. 
 
 (t) Don V. Lippmann, 1837, 2 Sh. and M'L., 730, supra, ib. (u) Slielby v. 
 
 Grey, 11 Wheaton, 3G1, 371, 2, noted in Story's ponfl., § 581. See also pur Lord Cun- 
 ingbame in Farrar v. Leith Banking Co. 1839, 1 D., 947. His Lordship was in the 
 minority in this case, which did not properly involve the question noticed in the text. 
 
 {x) Richardson v. Haddington, 6th March 1821, F. C. ; remitted by House of Lords, 
 2 Sh. App. Ca. 406.
 
 § 034. INTERNATIONAL QUESTIONS OF PKESCRIPTION. 357 
 
 liis daughter, a domiciled Scotcliwoman, succeeded. She thereupon 
 raised an action in tliis country for hav^ing it declared that the 
 dehts had l)een extinguished hy the Russian decennial prescription. 
 The Court of Session, proceeding on the opinion of foreign lawyers 
 that that proscription extinguished dchts to which it applied, de- 
 cerned ill terms of the lihel, holding that, altliougli the llussian 
 prescription would Hot have heen a good plea in favour of the ori- 
 ginal dchtor, it was suflicient to extinguish the dchts, in so far as 
 they could alfect liis heir succeeding oidy to funds situated in 
 Eussia (?/). The case having heen appealed, the House of Lords 
 approved of the principle adopted by the Court below, so far as it 
 reo-arded the oridnal debtor; but considered that "it could not be 
 supported to the extent to which it has been pronounced, that tlie 
 del)ts are null and extinguished." Their Lordships accordingly found 
 that the debts were not extinguished. They did not decide as to the 
 liability of the heir ; but remitted to the Court below to review 
 their interlocutor appealed against, and to take a more full opinion 
 from Russian lawyers upon the nature and effect of the sequestra- 
 tion in regard to the question. 
 
 As to the subsistence of the original debtor's liability in Scot- 
 land, notwithstanding the Russian prescription, Lord Git'ford (who 
 heard the case in the House of Lords) observed — "It is impossible 
 that by a person's removal to Russia or any other country where 
 a different law prevails from that in Scotland, he can discharge 
 himself from those debts ; but he must, if he returns to that country, 
 be liable to be sued, leaving it open to him to avail himself of any 
 defence which the law of Scotland enables him to set up against 
 those demands." His Lordship mentioned the English case of 
 Smith V. Buchanan (z), in the time of Lord Kenyon, as having been 
 decided on the same principles. 
 
 The learned Lord was not so clear as to the heir's liability. On 
 that point he threw out his impression, without conclusively holding, 
 that "If, on the answer to the questions proposed to the Russian 
 lawyers, it shall appear that by the law of Russia those debts could 
 not be recovered there, because a person in Russia acquiring right 
 by Russian law would in Russia be exempted from the payment of 
 these debts, it would be difficult to say how, if this Russian came to 
 Scotland, he would be afi'ected in Scotland, he being relieved by the 
 law of Russia from those debts ; and if that be the law in the case 
 
 (y) The tenor of the opinions of tlio judj^es in the Court below is nientionetl by Lord 
 Giiford in his speech in the House of Lords. (z) Smith r. Bui'hanau, 1 East. 6.
 
 358 INTEKXATIONAL QUESTIONS OF PRESCRIPTION. § 534- 
 
 of a Russian, it is difficult to say how it can be different, if it is in 
 the case of a Scotch lady." 
 
 This case does not appear to liave come again before the Court. 
 
 § 535. The law is simple and clear as to prescriptions, or more 
 properly limitations, which enter into the contract ah initio, like 
 implied conditions defining its endurance. There is but one of 
 these in Scotch law, namely the septennial limitation of cautionary 
 obligations ; as to which the act 1695, c. 5, " statutes and ordains 
 that no man binding and engaging for hereafter for and with another 
 conjunctly and severally in any bond or contracts for sums of 
 money, shall be bound for the said sums for longer than seven years 
 after the date of the bond, but that from and after the said seven 
 years the said cautioner shall be eo ijjso free of his caution." The 
 true effect of this enactment is, that the obligations to which it 
 refers shall be read as if they contained a clause declaring that they 
 should only last for seven years («). Consequently this limitation is 
 of the nature of the contract, and not merely of the remed}''. It is a 
 statutory rule for interpreting obligations of a certain class entered 
 into in Scotland, and contracted with reference to the provisions of 
 the statute. On the one hand, therefore, the septennial limitation 
 ought to follow a Scotch cautionary obligation when sued upon in 
 another country ; wliile, on the other hand, it should not be applied 
 to a cautionary obligation entered into beyond Scotland, because 
 the parties did not contract on the footing that the obligation should 
 be so limited. 
 
 § 536. The case of Don v. Lippmann, and the authorities on 
 which it proceeded, e converso support this principle ; because the 
 ground of decision there was that the prescription of the lex loci 
 contractus was not of the nature of the contract, but merely affected 
 the remedy ; and Lord Brougham laid down distinctly that the in- 
 terpretation of the contract nmst depend on the rules of construc- 
 tion ap[)lying to it in the place where it was entered into. 
 
 § 537. The principle has also been expressly settled in a late 
 carefully considered case, where the septennial limitation was held 
 not to apply to a cautionary obligation executed in Russia, and sued 
 upon in this country (6). Lord Tullerton observed in that case, — 
 "If it could be held that the septennial limitation was a prescrip- 
 
 (a) Ersk., 3, 7, 24-1 BolPfi Com., 358— Scott v. Yiiille, 1831, 5 W. S., 443, per Lord 
 Cli. Brougham — Alexander v. Badenach, 1843, 6 D., 322. (h) Alexander v. 
 
 Badonach, supra.
 
 § 537. INTERNATIONAL QUESTIONS OF PEESCRIPTION. 359 
 
 tioii iMiintiiijj; out a iiarticular time within which action must be 
 brought, it would 1)0 impossible to deny that it would affect every 
 contract falling under its terms, in whatever country it was exe- 
 cuted, if sued upon in this But if the statute only 
 
 introduces a qualification of the contract itself, it is ecjually clear 
 that w^e are l)ound to lo<jk to the lex loci contractus, and not to apply 
 tlie statute to a contract entered into in a country to which it does 
 not extend." This decision gives completeness and consistency to 
 the international law of prescription.
 
 3GU i'liUOF OF MAKKIAGE. § 538- 
 
 TITLE X. 
 
 OF RESTRICTIONS OF THE MODE OF PROVING CERTAIN 
 
 FACTS. 
 
 § 538. From an early period restrictions on the mode of proving 
 certain facts have been establislied in this country. These have 
 sprung from the extreme distrust of testimony, and from the pro- 
 minence given to written proof, throughout the Scottish system of 
 evidence. Accordingly, it will be seen that a proof at large is in- 
 competent on most matters of importance on which the parties 
 might have secured written proof, or which from their nature are 
 apt to escape the recollection of disinterested witnesses. In gene- 
 ral, these restrictions limit the party to his opponent's writ or oath 
 on reference. But in some cases written proof is essential to the 
 constitution of the right or obligation. — The consideration of these 
 restrictions will lead us to notice incidentally, and by way of con- 
 trast, certain cases in which the proof is unlimited. 
 
 CHAPTER I. — PROOF OF MARRIAGE. 
 
 § 539. When marriage is constituted by consent de presenti, 
 wliether emitted in facie ecclesiae, before a magistrate, or simply 
 before witnesses, the proof of it may be by parole, or by WTit or oath 
 of party (a). And such consent may be proved by a writing sub- 
 scribed by the parties, although neither holograph nor probative (b).^ 
 
 (a) M'Adam v. Walker, 1813, 1 Dow, 148; 5 Pat. Ap. Ca., S. C— Stair, 4, 45, 9— 
 Ersk., 1, 6, 5, Ivory's Note— Bell's Pr., ^ 1518— More's Notes, 13—1 Eraser, Pers. and 
 Dom. Rel., 147. (i) Wyche i'. Blount, 1801, M., "Forum Competens," Appx. 
 
 No. 2 ; Ferg. Con. Rep., 27, S. C. — per Lords Fullerton, Mackenzie, and Jeffrey, in 
 Mackenzie v. Stewart, 1848, 10 D., 611 — Eraser, supra. 
 
 * Matrimonial consent may be expressed by an acknowledp^nieut by tlie one party if 
 made in presence of the otber. Thus a marriage was held to be contracted by an ac-
 
 §541. PROOF OF MARRIAGE. 361 
 
 § 540. A marriage constituted by consent inferred from ((jhalji- 
 tatiou as man and wile may also be i)roved ^^?*om/ dejure (c). 
 
 § 541. The pursuer of a declarator of marriage founded on jiro- 
 mise and sul)sequent copula, can only prove the promise by the 
 defender's WTit or oath on reference {d). At one time it was thought 
 that marriage could be constituted by courtship (as equivalent to 
 promise) and consequent copiila, the courtship being proveable by 
 parole (c). But the Court have deliberately decided that such a 
 mode of constituting marriage does not exist in this country (/). 
 
 (c) Stair, stipra—Ersk., 1, 6, 6— Bell's Pr., § 1518. (d) Harvie v. Craw-ford, 
 
 1732, M., 12,388-Millar v. Treraamondo, 1771, M., 12,395— Cockburn v. Logan, 1670, 
 M., 12,380— Stewart v. Lindsay, 1818, Hume D., 380- Sim v. Miles, 1829, 8 S., 89, 9G, 
 per L. Just 01. Boyle— Mackenzie v. Stewart, 1848. 10 D., 611— Monteith v. Robb, 1844, 
 6 D., 984—1 Fraser, 197. (e) BelFs Pr., g 1519— More's Notes, 13— Tait on 
 
 Ev., 306 — Lothian, Consist. Law, 41, 2. The doctrine stated by these writers was er- 
 roneously deduced from tlie following cases, where the Court allowed a proof before an- 
 swer of the pursuer's allegation, thus avoiding a decision on its relevancy — Smith v. 
 Grierson, 1756, M., 12,391 ; Ferg. Con. Rep. 134, S. C— Harvie v. Inglis, 1837, 15 S., 
 964 — Low V. Allardice, 1794, not rep., noted in Harvie v. Inglis. See these cases com- 
 mented on in 1 Fraser, Pers. and Dom. Rel., 192. (/) Monteith v. Robb, 1844, 
 6 D., 934. 
 
 knowledgment in these terms, — " I do hereby acknowledge Agnes Fleming to be my 
 wife," written and signed by Robert Corbet in presence of Agnes Fleming, and given 
 to and accepted by her; Fleming v. Corbet, 1859, 21 D., 1034. But parties do not ne- 
 cessarily contract marriage by such a document, however unambiguous ; because proof 
 is competent that it was granted for some other purpose, as, for instance, with the design 
 of deceiving other persons; Fleming v. Corbet, supra, g 174, note 15. In a late case be- 
 tween two parishes as to liability to aliment a female pauper, where the liability de- 
 pended on the validity of her alleged marriage, the Court held the marriage not esta- 
 blished, tliough both she and the man whom she claimed as her husband deponed that 
 they had exchanged matrimonial consent, — the Court thinking that the rest of the evi- 
 dence showed that the parties had not intended marriage ; -Beattie v. Baird, 1863, 1 
 Macph., 273. Where a female pursuer of a declarator of marriage aUeged that the defen- 
 der had, on several occasions, acknowledged her as his wife in presence of third parties, 
 hut not in her presence, the Court held the averments irrelevant; because these acknow- 
 ledgments, made when the pursuer was not present, coivld not constitute marriage ; and 
 because the pursuer did not aver that there had been any consent of which these ac- 
 knowledgments could bo held to be tlie proof: Little v. Halliday, 1855, 17 D., 578. 
 Tluit matrimonial consent has taken place may be proved by subsequent acknowledg- 
 ments ; Leslie v. Leslie, 18G0, 22 1)., 993— Longworth v. Yelverton, 1862. 1 Macpher- 
 son, IGl, 35 Jur., 101, and separate report, 1863. In Leslie v. Leslie, in an action by 
 tiio lady after her husband's death, marriage was held established by the terms of a corre- 
 spondence between them, in which they addressed each other as husband and wife. In 
 Longworth v. Yelverton the acknowledgments proved were held by Lord Ardmillan 
 (Ordinary) and by Lord President M'Neill to be insufficient proof of the previous con- 
 sent. But the opposite view was entertained by Lords CurriehiU and Deae. The case 
 has been appealed.
 
 3(32 TKOOF OF MARRIAGE. § 541- 
 
 Proof of courtship, however, may be of great importance as explain- 
 iiig the conduct of the parties where the meaning or ol)ject of the 
 defender's writ is in issue {g)."^ 
 
 § 542. The question arose in a recent case (Ji) Whether a writ- 
 ing signed by a party, but neither holograph nor tested, could prove 
 his promise, and being followed by copula, constitute a marriage ? 
 The Lord Ordinary, holding the writing to be sufficient, found in 
 favour of the marriage ; but in the Inner House his Lordship's 
 judgment was reversed, on the ground that there was very strong 
 reason for believing that the promise had been fraudently written 
 above a signature which the defender had written on the paper for 
 some different purpose. Lords Mackenzie, Fullerton, and Jeffrey 
 concurred in holding that the law does not require the written pro- 
 mise to be either holograph or tested ; the defender's subscription 
 to a promise in another person's handwriting being sufficient, pro- 
 ■\dded the Court are satisfied that the document was truly signed 
 by the defender, and delivered to the pursuer as a promise of mar- 
 riage. The Lord President did not pronounce an opinion on that 
 general question. 
 
 § 543. It is not necessary that the writing, if genuine, should 
 contain a specific promise of marriage ; but it will be sufficient if 
 such is its fair import. The promise may also be inferred from the 
 tenor of a course of correspondence (^). In like manner, the Court 
 may infer a promise from facts admitted by the defender in his oath 
 on reference, notwithstanding his denial of it {k).^ 
 
 (g) Honeyman v. Campbell, 1831, 5 W. S., 92— Mouteith v. Robb, supra. 
 (A) Mackenzie v. Stewart, 1848, 10 D., 611. (i) Honeymau (;. Campbell. 
 
 1831, 5 W. S., 144— per Lord Just.-Clerk Hope in Monteith v. Robb, 1844, 6 1)., 938. 
 (k) Stewart v. Lindsay. 1818, Hume D., 380. 
 
 2 Ross V. Macleod, 1861, 23 D., 972 — Longworth v. Yelverton, supra. 
 
 3 " The promise which the law requires in such a case must be a promise made and 
 accepted, or a betrothal ;" Lord Curriehill, in Ross v. Macleod, 1861, 23 D., 972. In 
 this very important case on this branch of the law, the defender had given a written 
 promise to marry the pursuer. There had previously been courtship and (as the ma- 
 jority of the Court thought) intercourse between the parties ; but the Court held, on the 
 evidence, that there had been no copula subsequent to the written promise. The main 
 question was, Whether tliere had also been a verbal promise prior to the intercourse ? 
 and the Lord Ordinary (Kinloch) thought that, although the verbal promise could not 
 be proved by ■witnesses, yet that facts and circumstances might be established by parole 
 evidence, out of which the Court might infer that a promise had been made. But this 
 view was explicitly rejected in the Inner House, and it was held that the promise could 
 not be competently proved in that way. The Lord President (M'Neill) stated the law on
 
 § 544. PUOOF OF MAKIHAGE. 3(;3 
 
 § 544. The uutliur of an ultlc and learned treatise is of" u|tiiiinii 
 that lh(! promise may he jinjved l»y the defender's judicial examin- 
 ation (/). It is tliouglit. liowrvcr, that correct practice does not 
 a(hnit this j)r(jcedure, tlic general rule excluding it nn matters which 
 cannot he proved by parole (m). 
 
 (/) 1 Frasnr, Plts. and Dom. Uel., I'.tT. In Sawers v. Fom-st, 1786, noted in 1 
 Frascr, 191, the pursuer was judicially oxaniined without objection. Mr Fraser (ib.) 
 mentions tluit the same course was followed in Stewart v. Lindsay, 1818, Hume D., 380. 
 Hut it appears from the report that the defender in that case was examined on oath, 
 after the Conimissaries had decided that the proof could only be by writ or oath. 
 
 (w) See Tarbet v. Bennct, 1803, Hume D.. 500— Porteous v. M'Beath, 1812, ib., 98 
 —Hamilton v. Hamilton, 1824, 3 S., 283— M-Master v. Browii, 1829, 7 S., 337— Alcock 
 /'. Easson, 1842, 5 D.. 356. See ou judicial examinations, infra, Part ii, b. ii, tit. 2, 
 
 the point as follows: — •■ The promi.se which is reijuisite in order to make marriii-^e, by 
 reason of its being followed by intercourse, is a promise as to which the proof is of a limit- 
 ed kind. It must be proof by the writ of the party, or by the oath of the party. The 
 Court must derive its knowledge of the promise direct from the i>a.rty himself, either 
 from his hand or from his mouth, and if it comes from his mouth, it is not to be dis- 
 tilled through the recollection or evidence of parties who repeat it. It must come direct 
 from the party to the Court. It must be admitted by him on oath, and if so, that would 
 supersede proof, for we do not require proof of what is admitted on oath. The fact of 
 there having been a previous courtsliip may, in some cases, be a fact of importance in 
 order to enable us to read with more certainty the document, or series of documents, or 
 course of correspondence. But still it is from this document or series of documents con- 
 stituting the correspondence that the evidence is deduced. They may require construc- 
 tion, and the facts that enable you to construe them may be important. But still the 
 evidence is the evidence of the party." This view of the law was fully recognised in 
 Longworth v. Yelverton, supra. In Longworth v. Yelverton Lords Curriehill and Deas, 
 who formed the majority, held the facts to be, that there had been a promise of mar- 
 riage in Scotland : that the first intercourse between the parties had subsequently taken 
 place in Ireland; that the parties had afterwards returned to Scotland, and that inter- 
 course had then taken place there, — and they held that marriage was constituted bv 
 the promise and subsequent cojji/la in Scotland. The Lord President dissented, on the 
 ground that assuming that there had been a promise in Scotland, which he doubted, still 
 the copula could not be connected with the promise. The copuki must be in Scotland ; 
 whether it is necessary that the promise should also have been given in Scotland ap- 
 pears doubtful ; per Lord President in Longworth v. Yelverton. It would appear that 
 if the promise be preceded as well as followed by intercourse, as if it take place in the 
 eourse of an illicit cohabitation, marriage may be, but is not necessarily constituted ; 
 Lord Deas in ilacleod v. lioss, supra. Previous illicit intercourse raises a presumption 
 against a marriage, or interposes an obstacle in the way of proving it, if the mode of 
 constitution alk^ged be promise subsequente copula, and still more if cohabitation and 
 habit and repute be the ground of the marriage. But if it be alleged that a marriage 
 lias been constituted by consent, no adverse presumption arises from the previous illicit 
 intercourse; per Lord Justiee-CliTk Iiiglis, FlemiuL' '•. Corbi't. 1K.V,», 21 P., 1034.
 
 3G4 PROOF OF MARRIAGE. § 545- 
 
 § 545. The subsequcut copula may bo proved j^row^ dejure (u), 
 including the dcfendcr'tj judicial examination {o)^ 
 
 CHAPTER II. — PROOF OF OBLIGATIONS REGARDING HERITAGE. 
 
 § 546. Heritable rights have long been considered too important 
 to be constituted or transmitted by verbal contract. Writing is 
 essential to all obligations regarding this class of rights ; and till it 
 has been adhibited eitlier party may resile as from an unfinished 
 bargain (p). This rule applies where one of the parties died, with- 
 out having resiled, before the writing had been executed (r). And 
 where a contract regarding heritage stands on offer and acceptance, 
 the latter as well as the former must be in writing; otherwise one 
 of the parties w^ould be bound, and the other free (s). Writings in 
 order to constitute or transmit heritage must be regularly tested or 
 holograph {t). Consequently, when the obligation stands on mutual 
 missives, both documents must have one or other of these requi- 
 sites (m). 
 
 § 547. These rules apply to the constitution and transmission 
 
 (n) Harvie v. Crawford, 1732, M., 12,388— Reid v. Laing, 1831, 1 Sh. Ap. Ca., 440, 
 449 — Ferg. Con. Law, 11-5. (o) Sawers v. Forrest, supra — Reid v. Lang, supra. 
 
 {]}) Stair, 1, 10, 9— Ersk., 3, 2, 2, and 4. 2, 20—1 Bell's Com., 328— More's Notes, 
 65. (r) Oliphant v. Monorgan, 1628, M., 8400. (s) Ersk., 3, 2, 2— Tait 
 
 on Ev., 221. But a written promise does not require a written acceptance; Ferguson v. 
 Paterson, 1748, M., 8440— l^Iuirhead v. Chalmers, 1759, M., 8444. It is perfected by 
 delivery; Fulton v. Johnstone, 1761, M., 8447. (t) Ersk., 3, 2, 2—1 BeU's 
 
 Com., 328— More's Notes, 65. (u) Ersk., 3, 2, 2— Barron v. Ross, 1794, M., 
 
 8463— More's Notes, 66. 
 
 4 The Act for amending the Law of Marriage in Scotland, 19 and 20 Vict., c. 96, 
 provides, g 1, that after 31st December 18G1 no irregular marriage contracted in Scot- 
 land by declaration, acknowledgment, or ceremony, shall be valid, unless one of the 
 parties had his or her usual place of residence there, or had lived there for twenty-one 
 days preceding ; and (2) that any persons so contracting an irregular marriage may, 
 within three months, apply to the Sheriff of the county and prove their marriage, and 
 the residence of one of them in Scotland for the requisite period ; that the Sheriff shall 
 then certify the marriage ; that it shall be entered in the Register of Marriages, and 
 that a copy of the entry shall be received " in evidence of such marriage and of such 
 residence."
 
 § 548. PROOF OF OBLIGATIONS REriARDING HERITAGE. 305 
 
 not only of proijcrty in luii<l, hut also of iufcri'jr real rights, e.g., 
 licrital)le securities and servitudes {x).^ 
 
 § 548. Leases of heritable subjects may be proved ])y parole 
 where the duration is only for one year {y). But writing is essen- 
 tial to the constitution of a tack for a longer period {z). And if a 
 
 (x) Stair, 1, 10, 9—1 Bell's Com., 328— More's Notes 220— Kincaid v. Stirling, 
 1750, Elch., " Servitude," No. 4. But see Johnstone v. Aitken, 1829, 7 S., 732, where 
 the Court, in the peculiar circumstances, allowed a proof before answer of an alleged 
 servitus luminis. In Mutrie, 20th June 1810, F. C, the rubric is — "A servitude ne 
 lumini/jus officiatur constituted by writing not holograph nor tested found to be good 
 against singular successors." But the case was too special to warrant its being stated 
 so broadly. The dominant and servient tenement had originally belonged to the same 
 person, who had sold tho former, and two years after the sale sent a letter, which was 
 not holograph or tested, to the purchaser, stating that he held himself bound not to 
 build so as to obscure the light of the tenement sold, and that a clause to that effect 
 had been omitted in the disposition. The Lord Ordinary held that such must have 
 been an implied condition of the sale. The report of this case in Mor. Synop. of Decis., 
 1808 to 1812, voce " Servitude," No. 6, bears that "the Court, as in the case of Gray, 
 1792, M., 14,513, held that a negative servitude can be ascertained by whatever afforrls 
 evidence that it was contracted between the parties that such a servitude should exist." 
 But this is not borne out by the report of the case in the Faculty Collection ; while in 
 the case of Gray the deed constituting the servitude was probative. 
 
 {!/) Stair, 2, 9, 4— Ersk., 3, 2, 2— Beirs Pr., ? 1188-1 Bell on Leases, 282, note— 
 1 Hunter on Land, and Ten., 347. (z) Stair, supra — Ersk., supra — Bell's Pr., 
 
 supra — Hunter, sujjra. 
 
 1 A servitude may be constituted by prescriptive use, or by written grant. In the 
 late case of Cochrane v. Ewart, the question occurred. Whether it could also be con- 
 stituted rebus ipsis etfactis? There the adjoining feus of the pursuer and defender had 
 belonged to one proprietor. On that of the pursuer there was a tan-work, and the water 
 used at the tan-yard was conveyed by a drain through the property afterwards acquired 
 by the defender. AV'hen the projjcrty came to be held by diflerent owners, tlie owner 
 of the lower tenement built a wall intercepting the drain; and an action to have the 
 obstruction removed was raised by the owner of the higher tenement. The purauer had 
 no prescriptive right. Lord Deas delivered the judgment of the Court. He held that 
 the right claimed by the pursuers resolved into a right of servitude, which might be 
 constituted, — (1) if it could be shewn that the water followed the natural declivity of 
 the ground; (2) by implied grant; (3) rebus ipsis etfactis, if the actings of the parties 
 fairly implied and recognised the existence of the right. He held that the right in 
 that ca^o was constituted both by implied grant and rebus ipsis etfactis. His Lordship 
 referred to the case of Preston's Trustees v. Preston, 1844, reported 22 D., 300, in which 
 a similar rigid of servitude had been held constituted rebus ipsis etfactis. But when 
 Cochrane i>. Ewart was appealed. Lord Chancellor Campbell aud Lord Chelmsford re- 
 jected the view that a servitude might be constituted rebus ipsis et factis; and aflSrmed 
 the judgment on the ground of implied grant, on the principle, that when a property 
 held by one owner was severed, and part of it was disponed, it was implied that any 
 right, used and necessary for the comfortable enjoyment of the part dii^poned, was car- 
 ried by the grant. This seems also the principle of the judgment of the case of Mutrie. 
 quoted sui>ra; Cochrane v. Ewart, 18G0. 22 D., 358; afl\, 1861. 4 Macqueen. 117. and 
 33 So. Jur., 435.
 
 366 PROOF OF OBLIGATIONS REGARDING HFinTAGE § 548- 
 
 lease for more tluin one year has been entered into by verbal agree- 
 ment, both parties have right to resile, and the contract will not 
 stand as a one-year's lease (a) ; because " its terms and conditions 
 must have been adjusted at the commencement for a course of 
 years, and would probably be quite unsuitaltle to a shorter period ; 
 and the allowing sneh an agreement to be binding for one year 
 would be to convert one transaction into another " (h). Yet if pos- 
 session has followed on such a lease, it mil be good for one year (c). 
 And if there has been possession for some years under a verbal 
 lease for more than one year, there is locus penitentiae as regards all 
 but the year current (c?), unless there has been rei interventus so 
 considerable as not to be consistent with a lease for one year, e.g., 
 paying a grassum, erecting expensive buildings, and the like (e).^ 
 
 § 549. When a tenant continues his possession after the expiry 
 of the time stipulated in his written lease, he is presumed to do so 
 on the same terms as under that contract (/). But the written 
 lease, although important, is not conclusive proof of the new agree- 
 ment, and any change on its stipulations may be proved 'prout de 
 jure {(j) ; the possession for each successive year being under a quasi 
 
 (a) Stair, stfpra — Bell's Pr., supra — 1 Bell on Leases, 281—1 Hunter, 348— Tait on 
 Ev., 221—2 Fraser on Pers. and Dom. Rel., 370— Cadell v. Sinclair, 1749, M., 12,416; 
 noted in Hume D., 390, S. C. Contra, opinions in Paterson v. Edington, 1830, as in 3 
 De. and And., 147— Ersk. Prin., 2, 6, 8. (b) Tait, szipra. 
 
 (c) Stair, 2, 9, 4—1 Hunter, 348—1 Bell on Leases, 282, note— Tait, Ev., 229— 
 Keith V. Johnstone's Ten., 1636, M., 8400— A B, 1791, M., 15,181. (d) Keith 
 
 V. Johnstone's Ten., sM/)ra— Buchanan v. Baird, 1773, M., 8478— Hunter, si/pra. 
 
 (e) A B, 1553, M., 8410 ; 15,209, S. C— Skene v. , 1637, M., 8401— M'Rorie 
 
 V. M'Whirter, 18th December 1810, F. C— See Neill v. Cassilis, 22d Nov. 1810, F. C. 
 
 More's Notes, 67. See on this point infra in the chapter on rei interventus, Part ii, b. i, 
 
 tit. 1, eh. 4. (/) 1 Hunter, 519. (g) Supra, § 173. See Menzies v. 
 
 Dulf, 1851, 13 D., 1044, mpra, § 113. Where a change is agreed to verbally on the 
 stipulations of a previous written lease, the tenant rather possesses under a verbal lease 
 than on tacit relocation. 
 
 2 A verbal lease for more than one year is binding if followed by rei interventus ; 
 but the verbal lease, though followed by rei interventus, cannot be proved by witnesses, 
 but only by writ or oath of party. " When the institutional writers or otlier authorities 
 speak of a verbal agreement not being binding even if it were admitted upon oath, they 
 always mean a verbal agreement upon which there has been no rei interventus. And, on 
 the other hand, when they speak, in other passages, of a verbal agreement being bind- 
 ing if rei interventus has followed upon it, they always mean a verbal agreement compe- 
 tently proved, that is to say, proved by the adversary's oath "; Lord Deas in Gowans v. 
 Carstairs, 1862, 24 D., 1382. But it may be proved also by his writ; Gowans v. Car- 
 stairs (where the question was as to a lease for 999 years), and W^alker v. Flint, 1863, 
 25 D.. 417, where the question was as to an alleged lease for 3 years. See supra, 167, 
 note 11.
 
 §551. PKOOF OF OBLIGATIONS REGARDING IIKKI'IWGK. i^C.T 
 
 vui'hul contract, wiiicli luluptcd all the ohligatioiis under thu prior 
 deed, except in so far as they were si)ecially departed from. 
 
 § 550. The rule whicli requires writing in ol)hji-ations regarding 
 heritage applies to suhmissions ; no contract of suhniission or de- 
 crce-arhitral of whicli that is the suhject being effectual, unless it 
 is contained in a probative or hologra])]i writing (//), oi- unless it has 
 been followed by rei inferventus (?'). 
 
 § 551. But while either party may resile from a verl)al obliga- 
 tion regarding heritage so long as matters are entire, yet if the party 
 who abides by the contract lias incurred expense on the faith of 
 performance, he will Ix.' entitled to reparation for these expenses 
 from tlic [tarty resiling. Tims when- the su1)scribers for a monu- 
 ment to the late Lord IMclville had agreed verbally with Sir I'eter 
 Walker for a site for the building, and had performed several opera- 
 tions on the ground ; and where, in consequence of the agreement, 
 he had altered his feuing plans, and the drains and levels on his 
 ground ; but the monument had afterwards been erected on another 
 site ; in an action at the instance of Sir Peter, the Court held him 
 intitled to " indemnification for any actual loss he might have sus- 
 tained, and for the expenses incurred in consequence of the altera- 
 tion of the site " (Jc). So where a party alleged that he had expended 
 a sum of money in erecting a dwelling house on a piece of ground 
 with the knowledge of the proprietor, and on the faith of his verbal 
 promise to execute a conveyance, but that the ground had subse- 
 quently been conveyed to a third party, the Court held that an 
 action for the expenses which tlie party had so laid out was relevant, 
 and that the rule which re(iuired the intervention of writing in o1)- 
 ligations regarding heritage did not apply (/). The case was re- 
 garded as laid on fraud, and tlie promise as Avell as the expenditure 
 were put in issue ; from which it would seem that parole was con- 
 sidered admissible to prove them both. In this case, however, as 
 well as that regarding Lord IMehdlle's monument, the action was 
 sustained only for the actual expenses incurred in consequence of 
 the agreement not having been implemented, and not generally for 
 the damage occasioned by non-implement. 
 
 (A) A B, 1584, M., 12,448— A B, 1617, M., 16,829— Gairdner v. Bro\\Ti, 1738, M., 
 8474— Tait, Ev., 223. (i) See ou rei interventus, infra. Part ii, h. i, tit. 1, ch. 4. 
 
 {k) Walker v. Milne, 1823, 2 S., 379. The summons concluilcd for implement or 
 damages, but the first alternative was departed from. See also Mackenzie i-. Trotter, 
 1729, M., 8437— Campbell v. Robertson, 1797. noted in Hume D.. 849. 
 
 {!) Bell V. Bell, 1841, 3 D., 1201.
 
 368 PROOF OF OBLIGATIONS REGARDING HERITAGE. § 552- 
 
 § 552. lu an old case, where parties had agTced to a verbal 
 lease for several years under the stipulation that if the tenant did 
 not enter he was to pay a year's rent as penalty or forfeit ; the 
 landlord having erected farm buildings, and the tenant having re- 
 fused to enter ; the Court sustained the claim of the former for the 
 penalty; whicli, being due under an obligation to pay money in a 
 certain event, did not require writ for its constitution, but could be 
 proved b}" the oath of the obligant (m). The principle of this case 
 seems to apply to all verbal obligations regarding heritage, where a 
 penalty is stipulated in the event of non-performance. 
 
 § 553. It was once held that a verbal promise to ratify an in- 
 formal disposition of land was binding, and could be proved by the 
 oath of the obligant (n). 
 
 The rules as to rei interventus are considered afterwards. 
 
 CHAPTER III. — OF THE PROOF OF RIGHTS AND OBLIGATIONS 
 EEGARDING MOVEABLES. 
 
 I. Proof of 'property in Moveables. 
 
 § 554. It has already been seen that the possession of corporeal 
 moveables raises a presumption of a right of property in them ; and 
 tliat this presumption may be overcome by proof proM^ dejure (a). 
 
 II. Nominate Contracts regarding Bloveables. 
 
 § 555. Contracts and obligations which relate to corporeal move- 
 ables, and have known prestations, may be proved prout de jure 
 whatever be the amount at stake (&). The reason is, that as the 
 heads of such agreements are simple and easily remembered, and 
 as law will supply the consequent mutual obligations, tlie proof may 
 safely be by parole, and the interests of trade require that it should 
 not be unnecessarily restricted. This rule applies to contracts of 
 sale, barter, and location of corporeal moveables (c). There is an 
 
 {m) Skeen v. , 1637, M., 8401— Stair, 2, 9, 4— Ersk., 2, 6, 30— Tait's Ev., 222. 
 
 (w) Christie's Daughters v. Christie, 1745, M., 8437. This decision is questioned by 
 Profe.ssor More, Notes to Stair, p. 66. («) Sypra, § 327, et seq. 
 
 {b) Stair, 4, 43, 4— Ersk., 4, 2, 20— Bell's Pr., '0, 89, 136, 196, 204— Tait, 298. 
 (c) Authorities in proceding note.
 
 § 557. ri;ooF of oiujcation'S REOARDrNG moveables. 369 
 
 exccjilitiii ill ict;iir(l lo sliii»s; lor iIm; .salu or tiiUi.st'crciice of whicli 
 writiii.i;' is riMinircil hotli liy coiiinioii l.iw (<l), and l»y the terms of 
 the Kc'j^istiy Acts (e).^ Tliis sulemiiity is also necessary in con- 
 tracts of aflVeiglitment, hy which the whole or a large part of a sliip 
 is located (/). But a contract to carry goods in a sliii) may lie 
 constituted verbally, and may be \)TO\ed prout dejiire {g). 
 
 In the cases above noticed, wliore writing is necessary, it is bind- 
 ing although not probative or Jiolograpli, ham^ in re mercator id (h). 
 
 § 55(5. When a contract concerning moveables stands on offer 
 and acceiitance, the most satisfactory proof is where Avriting has in- 
 tervened on both sides. But a written offer may be acce^ited ver- 
 lially (/), or by acting in terms of it, e.g., sending the goods wliich 
 the party offered to liuy (k). Even tacit acceptance is binding, as 
 wliere a merchant writes to his correspondent that he will send liini 
 certain (•onuiioditics at a specified price unless he bears from him 
 to the contrary, and the merchant to whom the offer is made does 
 not decline it ^^^thin a reasonable time (/). But whenever the offer 
 either expressly or by implication requires a written acceptance, 
 that is essential to the constitution of the contract.^ 
 
 § 557. Writing seems to be essential to the transmission of in- 
 corporeal rights, alth(jugh relating only to moveables. Thus the 
 conveyance of a written obligation to deliver grain at a certain 
 price cannot be proved by witnesses (m). And WTiting is essential 
 to assignations of written obligations {n) ; and eveu to the assigna- 
 
 (rf) 1 Bell's Com., 153. (e) 3 and 4 Will. IV, c. 55—8 and 9 Vict., c. 89— 
 
 12 and 13 Vict., c. 29, ^g 7, 20. See chapter on the registry of ships, infra. Part ii, h. ii. 
 tit. 2, eh. 7. (/) 1 Bell's Com., 539. (g Bell's Com., supra. 
 
 [h] Bell's Com., supra. See infra, g 784, et seq., upon WTitings in re mercaioria. 
 
 («■) 1 Bell's Com., 326. (k) Bell's Com., ib.— Bell's Pr., ? 70— I\rackellar r. 
 
 Lambert, 1828, 4 Mur.. 544. (/) Bell's Com., ib.— Bell's Pr., ib.— Jacques Serruys 
 
 & Co. V. Watt, rith Fel). 181 7, F. C— Jaffray v. Boag, 1824, 3 S., 375. (m) Clark 
 
 r. Callander, 9tli March 1819, F. C; 2 Mur., 89; affirmed 19th June 1819, 6 Pat. Ap. Ca., 
 422. (See copy of Lord Chancellor's speech in Session papers in the Advocates' Li- 
 brary, Fac. Col., 9th March 1819. (m) 1 Bell's Com., 328. 
 
 1 See as to title in ships, Duffus v. Mackay, 1857, 19 D., 430— Sclniltze v. lU,hh\- 
 son, 1861, 24 D., 120— Bell v. Guw, 1802, 1 Macph., 183. 
 
 2 In a written lease it was i>rovided that the lamllord or iueuining tenant should 
 have the option of taking, at a valuation, the half or whole of the way-going crop, on 
 intimation to the out-going tenant, six months before tlie expiry of the lease. The 
 Court h(>ld that a verbal intimation by the incoming tenant of his intention to take the 
 way-going crop had been competently proved by parole. Lord Deas thought tliat the 
 intimation should have been in writing ; Duke i'. Ferguson, 1862, 24 D., 547. 
 
 VOL. 1. 2 A
 
 370 PROOF OF OBLIGATIONS REGARDING I\IOVEABLES. § 557- 
 
 tion of a debt wliicli ma_y be constituted without that formality (o)^. 
 So, in an old case where two parties verbally excambed their shares 
 in two public companies, and earnest w^as given thereon, the Court 
 held that, as writing had not been interposed, there was locus peni- 
 tenfiae, upon the party wdio resiled returning the earnest, and pay- 
 ing the damages which he had occasioned to the other party by not 
 adhering to the bargain (^j). 
 
 § 558. Assignations to grants of patent must be in writing. 
 They must be entered in the " Register of Proprietors ;" " and until 
 such entry shall have been made, the grantee or grantees of the 
 letters patent shall be deemed and taken to be the sole and exclu- 
 sive proprietor or proprietors of such letters patent," and of the re- 
 lative rights and privileges (?•). In like manner copyrights cannot 
 be effectually assigned except by written assignment entered in the 
 Register Book of the Stationer's Company (s).^ 
 
 § 559. Writing is not essential to submissions regarding move- 
 ables ; both verbal submissions and verbal decrees-arbitral in such 
 matters being valid, if proved by oath of party on reference {t). 
 Strictly they may not be proved by wdtnesses, or even by the ar- 
 biters examined on oath (u). But " there may be particular cases 
 
 (o) Bell's Pr., § 1460— Smith v. Puller, 1820, 2 Mur., 344— Isles v. Gill, 1837, 1 D., 
 380, note— Forbes v. Alison, 1823, 2 S., 169. Contra, Panipin v. Melville, 1665, 1 B, 
 Sup., 506. {p) Lawson v. Aucliinleck, 1699, M., 8402. (r) 15 and 16 
 
 Vict., c. 83, 'i 35— Norman's Law of Patents, p. 147. (s) 5 and 6 Vict., c. 45, 
 
 ? 13. {t) Wishart v. Falconer, 1625, M., 17,013— Home v. Scott, 1671, M., 
 
 8402— Eraser v. Williamson, 1773, M., 8476 ; 12,417, S. C. {u) Ferrie v. Ewing, 
 
 1824, 3 S., 75 (new ed.) — Fraser v. Williamson, supra. But in Home v. Scott, supra, 
 the Court allowed the decree to be proved by the arbiter's oath. 
 
 3 The act 25 and 26 Vict., c. 85, gives certain abridged forms by which moveables 
 may be conveyed, moveable rights assigned, and the assignations intimated. 
 
 * A certificate of registration in the Piegister Book is prirna facie evidence of owner- 
 ship of copyright. In a recent case, the registered proprietor of the copyright of a song 
 raised an action against a party who had published the song ; and at the jury trial 
 which ensued (tlie verdict being for the pursuer), an exception was taken to the 
 charge of the presiding judge. Lord President M'Neill, in so far as he laid down that, 
 " in the event of jmma facie evidence being rebutted, the pursuer, the registered jiro- 
 prietor, might still support his title, without production of a formal instrument of assign- 
 ment, attested by two witnesses." This direction was held by the Court to be well 
 founded, and the judgment was affirmed on appeal. It was not decided by what evi- 
 dence the title of the pursuer could have been supported, if the prima facie title con- 
 ferred by the registration had been held to be rebutted. The pursuer produced, inter 
 alia, a written receipt by the authoress for the price. The Court refused to set aside 
 the verdict, as against evidence. But no objection to the competency of the proof, ex- 
 cept so far as covered by the exception to the direction, was insisted in ; Jeifrey v. 
 Kyle, 1856, 18 D., 906 ; aff. 1859, 31 Sc. Jur., 506.
 
 § 5G2. PROOF OF OBLIGATIONS KEGARDIXf; MOVI<:aBLES. 371 
 
 ol" siiKill t laiis.ictions wlicit- jaolttiMy tlic ('(•urt iiii;i;lit allcnv a huIj- 
 luissioii and a decree to }je proved by jjarole " (x). And this has 
 been allowed in submissions inter ticsiicos rc^ardinj:^ matters of 
 small importance (y). 
 
 Where the contract to submit or the decree-arl)itral requires to 
 be in writing, the document must be either holograph or proba- 
 tive (2). W it is not, it may be validated by ret inttrventuH (a). 
 
 § 5G0. A judicial reference, even when agreed to in writing, is 
 not a concluded contract till the authority of the Court has been 
 interponed to it ; and therefore either party may resile, if he can 
 satisfy the Court tliat tlie proceeding is inexpedient (6). It has not 
 been settled wlu'tlicr the }iower to resile exists independently of 
 the Court. 
 
 § 561. Transaction or compromise regarding moveables may be 
 proved l)y writ or oath of party, but not by parole (c), except in 
 trifling matters {d). Rei intervcntus will probably open the door 
 to a proof at large. In a keenly contested case where the issues 
 were, — Whether, under an arrangement of a certain case during a 
 trial, it was meant that a sum which a friend of one of the parties 
 took him bound to pay was by way of obhgation, or only as a chari- 
 table donation? and, AVhether the arrangement had been sanctioned 
 by the party (who afterwards attempted to disturb it) ? — parole evi- 
 dence was admitted along with the writings which passed on the 
 occasion ; and Lord Moncrieff charged the jury that " the question 
 whether an}'- agreement entered into was a compromise or not, de- 
 pends on the whole evidence, written and parole, taken together." 
 The object of admitting parole was to show the true meaning of 
 the letters, as contrasted with certain expressions contained in 
 them (e). 
 
 III. — Innominate Contracts regarding moveables. 
 
 § 562. IMr Erskine holds that contracts which are not distin- 
 guished by proper nomina juris, and which consist of mere recipro- 
 
 (x) Per Lord Glenlee in Ferrie v. Ewing, supra. (y) A B, 174G, M., 8475 
 
 —See also Gibson v. Howie, 1629, M., 1G,879. (z) See Part ii, b. i, tit. 1, ch. 1. on 
 
 the authentication of writings in submissions. (a) See Part ii, b. i, tit. 1. ch. 1, 
 
 on rei interventus. [b) Reid v. Henderson, 1841, 3 D., 1102. (c) Cranstoun 
 
 V. Homo, 1533, M., 12,297— L. Somerville i'. N., 1540, M., ib.— Fothcrinpham i-. Hun- 
 ter. 1708, M., 12,414. See also M'lllioso r. Reid, 1744, M., 12.389— Cadzow t-. Wilson, 
 1830, 5 Mur., 101— Burnett >\ Ewen, ir,80. M., 10.494. (d) Tait. 303. 
 
 (e) .lafl'ray v. Simp-son. 1835. 13 S.. 1122. 
 
 •1 A •-'
 
 372 PROOF OF OBLIGATIONS KEGARDING MOVEABLES. § 502- 
 
 cal obligations to give or perform, t'annot he proved by witnesses 
 when the subject is beyond £100 Scots; ''because, while in con- 
 tracts which lay mutual obligations on both parties, naturally flow- 
 ing from the contracts themselves, their meaning can hardly be 
 misapprehended by witnesses," " in verbal agreements in which the 
 articles do not necessarily arise from the nature of any known (.;on- 
 tract, but depend entirely upon the import of the words uttered by 
 the parties, inattentive hearers may, either by misplacing what was 
 spoken, or by mistaking its true meaning, be apt to change the 
 obligation into something quite different from what the debtor in- 
 tended " (/). This view is supported by the opinion of Lord Mon- 
 boddo in his report of a case of cautionry, which, however, was not 
 decided on that ground ((/). • Mr Tait (h) adopts the same rule, al- 
 though acknowledging that it has not been recognised by any deci- 
 sion. It does not appear to have been adopted in practice. On 
 the contrary, the tendency of several decisions is against the 
 rule (^). It is not likely, therefore, that it wdll be followed in 
 modern practice, especially as the admissibility of the parties as 
 witnesses has removed the chief ground on which Mr Erskine 
 maintained his doctrine.^ 
 
 (/) Ersk., 4, 2, 20. {ff) Tassie v. M'Linloch. 1764, 5 B. Sup., 899, 
 
 (h) Tait, Ev., 304. («) Sec Stirling v. M'Phadrick, 1628, M., 12,408— 
 
 Wilson V. Swan, 1804, Hume D., 817— Borth wick v. Bremner. 1833, 11 S., 716— Craig 
 
 V. Hill, 1830, 8 S., 833— Same parties, 10 S., 219. 
 
 5 The law seems to be correctly stated in the quotation from Erskine. In the case 
 of Edmonston v. Edmonston, Lord Benholme, delivering the judgment of the Court, 
 adopted the law as there laid down ; and added, — " It is clearly the law of Scotland, 
 not only in regard to heritage, but also in regard to moveables, that innominate con- 
 tracts, especially such as are of an unusual character, cannot be constituted verbally, or 
 proved by witnesses. Nor does it alter the rule that rei inierventus upon such verbal and 
 innominate contracts is alleged. For the uncertainty as to the terms of an innominate 
 verbal contract renders it impossible to determine what acts can be considered as con- 
 stituting a partial performance, or rei interventus following upon it." In the case of Ed- 
 monston, the pursuer set forth an agreement to the effect that he was to succeed to an 
 estate if he settled in a certain neighbourhood as a medical practitioner, and he said 
 that he had accordingly done so, abandoning his previous mercantile pursuits. It was 
 held that the agreement could not be proved by parole ; Edmonston v. Bruce or Edmon- 
 ston, 1861, 23 D., 995.
 
 § 5G4. TROOF OF CONTRACTS OF SERVICE. 373 
 
 CHAPTER IV. — PROOF OF CONTRACTS OF PARTNERSHIP AND .JOINT 
 
 ADVENTURE. 
 
 § 563. The contracts of partnership and joint iiJvuntiire may 
 l>e estaltUslu'd hy cxidonvc pmuf (lejurt (a). 
 
 CHAPTER W — PROOF OF CONTRACTS OF SERVICE. 
 
 § 5G4. A contract of service for a period not exceeding a year 
 may he proved proiU de Jure (b). Writing is essential to the con- 
 stitution of contracts for any longer period (c) ; neither parole {d) 
 nor oath of party (e) being admissible to prove them, unless there 
 has been rei intei^entus. A verbal contract for more than a year 
 cannot be enforced even for that period ; because its stipulations 
 were made mth reference to a contract essentially different (/). 
 Yet if the service has been entered upon, such a contract is effec- 
 tual for the year current ; each party being entitled to resile at the 
 end of that term ((/). And a verbal contract for more than one 
 year, which has been followed by such rei interventus as is incon- 
 sistent with only one year's duration, will be effectual for the whole 
 period (Ji). It was once held tliat a contract of service entered into 
 abroad for more than one year, and followed by entering into the 
 service, had been effectually constituted for its whole term, accord- 
 ing to tlie lex loci contractus, and might be proved by parole (i). 
 
 (a) 2 Bell's Com.. 622— Bell's Pr., ? 364— Tail's Ev., 299— Stevenson v. Wright, 
 1687, M., 12,732— Logan v. Brown, 1824, 3 S., 15— Thomson v. Camijbell's Tr., 1831, 
 5 W. S.. 16— M'Kinlay v. Gillon. 1831, 9 S., 90; affirmed 5 W. S.. 468. 
 
 (6) Ersk., 1, 7, 62, note— Bell's Pr., g 173—2 Fraser, Pers. and Dom. Rei., 369— 
 Tait, Ev., 298. (c) Ersk., supra — Bell's Pr., supra — 2 Fraser, 370 — Tait, supra — 
 
 Kennedy ('. Young, 1837, 1 Swin., 474— Caddell v. Sinclair, 1749, M., 12,416; S. C, 
 noted Hume D., 390— Paterson v. Edington. 17th June 1830, F. C. ; 8 S., 931 ; 3 De. 
 and And., 147, S. C. (rf) Kennedy i'. Young, supra. (<■) Caddell v. 
 
 Sinclair, supra— T&ii, 299. (/) Paterson v. Edington, supra. {g) Caddell 
 
 I'. Sinclair, supra — Tait, supra — Fra-^^er, »upra. [h) Sec Napier i'. Dick. 1805, 
 
 Hume D.. 388— Rymor v. M'Intyro, 1781, M., 5726; Hailes, 887, S. C— Neil v. 
 Va.-^hon, 1807, Hume D, 20. See the chapter on rei intcrvmnn. Part ii, !>, i, tit. 1, cli. 4. 
 
 [i] Gale r. Dumbarton Glass Co., 1829, 7 S., 369.
 
 374 PROUF OF CONTRACTS OF SERVICE. § 565- 
 
 § 565. Where a party sues another iur wages as having been 
 earned under a contract of service, he may prove prow^ dejure both 
 the fact of service and the terms on which it was rendered ; be- 
 cause such a case does not involve any question of locus penitentiae, 
 but only the questions, Was there service ? and if so. Upon what 
 terms {¥)? 
 
 § 566. When ^NTiting is required to prove a contract of service, 
 it must be probative or holograph ; and an informal missive with- 
 out rei interventus cannot be set up even by oath of party {I). 
 
 The rules as to the effect of rei interventus in validating informal 
 contracts of ser^dce are considered afterwards. 
 
 CHAPTER VI. — PROOF OF CONTRACTS OF MANDATE. 
 
 § 567. Contracts of mandate may generally be proved by pa- 
 role, and always by writ or oath {a). All these modes of proof are 
 competent in mandates to enter into such contracts regarding move- 
 ables as may be proved prout dejure ih). Writing is not even es- 
 sential to the constitution of a mandate to buy heritage. Thus 
 where one had bought an estate, another person alleging that the 
 purchase had been made for him under a verbal mandate may 
 prove his averment 'prout de jure (c). And where the representa- 
 
 {k) Thus one who liad taken charge of her brother's children for eight years was al- 
 lowed to prove proiU de jure an agreement that she was to he remunerated ; Sniellie v. 
 Gillespie, 1833, 12 S., 125 ; 18 S., 700. And such an agreement has been implied from 
 the fact of service performed by one living in the house of a relation, there being no 
 proof that it was to be gratuitous ; Anderson v. Halley, 1847, 9 D., 1222 ; supra, I 506, (s) 
 —Shepherd v. Meldrum, 1812, Hume D., 394— M'Naughton v. M'Naughton, 1813, 
 Hume D., 396— Adams v. Peters, 1842, 4 D., 599. Whereas when service had been 
 rendered by a neighbour not living in the house, the Court rejected a claim for wages, 
 maintained on the ground of implied obligation ; Ritchie v. Ferguson, 1849, 12 D., 119. 
 
 {I) Paterson v. Edington, swpra— Caddell v. Sinclair, supra— 2 Eraser on Dom. Rei., 
 378. {a) 1 Bell's Com., 478— More's Notes, 73— Tait Ev., 299— Cullen v. 
 
 M'Lean, 1838, 11 S., 733— Cases in Mor., 12,397, et seq. In the older cases writer oath 
 was often required. See B. Synop., 1896. (6) Authorities in i^rcceding note. 
 
 (c) Boswell V. Selkrig, 1811, Hume D., 350— Corbet v. Douglas, 1808, ib., 346— 
 Tweedie v. Loch, 5 B. Sup., 630— Skene v. Balfour Ramsay, ib. — Maxwell v. Maxwell, 
 ib.— per L. Glenlee in Mackay v. Ambrose, 1829, 7 S., 699— per Lord President Hope 
 in M'Lean v. Richardson, 1834, 12 S., 869— Alison v. Alison, 1771. M., 12,760; 6 B. 
 Sup., 630, S. C. These cases are noted fully, infra, g 576 (h).
 
 § 0(nS. 1'1{(J(JF OF MANDATK. 375 
 
 tivcs of a party luiiiiitainod thai a iiiaiidatc In buy houses iur him 
 could only be proved by writ or oath, the Court admitted parole ol 
 facts inferring that he had liomologated the purchase (d)} 
 ■ § 5G8. Mandates to draw, accept, or indorse ])ills, may be proved 
 by the writ or oath of the mandant (e). The old rule of Scotch law 
 required a written procuration (/). But it is now settled that sucli 
 mandates may be inferred from facts and circumstances ((/); e.g., the 
 general ju-actice of the principal to recognise the mandatory's sub- 
 scriptions (//), or his recognition of the individual bill (i). So a 
 party who has recognised a l)ill to which his name was affixed by a 
 thii-d person, is barred from alleging that it was forged, the recog- 
 nition implying authority {k). Procuration is also embraced l)y 
 the general authority of the agent or factor of a merchant residing 
 abroad (J). So the averment that it was the custom for commission 
 agents in a certain trade to draw bills on their principals per pro- 
 curation without a special mandate, and that this was known to a 
 person engaged in that trade, was held relevant to warrant an issue 
 of procuration, so as to make him liable for the amount (m).^ And 
 the power of the general manager of a company's business at a place 
 where neither of the partners resided, coupled with some other cir- 
 cumstances, was held to make the company lial)le for a bill drawn 
 
 (rf) Mudie V. Ouchterlony, 1766, M., 12,403; Hailes, 15; 120, S. ('. 
 
 (e) 1 Bell's Com., 399— Bell's Pr., ? 321— Thomson on Bills, 220. (/) lb. 
 
 (g) Bell's Com., ib.— Bell's Pr., ib.— Thomson, ib.— Davidson v. Robertson, 1815, 3 
 Dow, 218, reversing. (h) Bell's Com., »upra — Bell's Pr., supra. (0 Kelt's 
 
 Com., supra— Chitty on Bills, 31, et seg-.— Byles on Bills, 23— Llewellyn v. Wiuckworth, 
 1845, 13 Me. and Wei., 698— Cash v. Taylor, 1830, Lloyd and Welsby, 178— Prescott 
 V. Flinn, 1832, 9 Bing., 19. See also Provan v. Gray, 1821, 1 S., 92— Finlay v. Currie, 
 1850. 13 D., 278. {k) Miller v. Little, 1831, 9 S., 328— Maiklem v. Walker, 
 
 1833, 12 S., 53— Reg. v. Parish, 1837, 8 Car. and Pa., 94— Barber v. Gingell, 1800, 
 3 Esp., 60. (I) 1 Bell's Com., 400. {m) Anderson v. Buck, 1841, 3 
 
 I)., 975. 
 
 1 In Stewart v. Johnston, 1857, 19 1)., 1071, Lord Ar.lmillan, Ordinary, held that 
 an averment of verbal authority to contract for a feu of heritable subjects cannot be 
 competently proved by pande. But Lord Deas, in the Inner House, said that he was 
 not to be understood as assenting to that doctrine. 
 
 It is competent to prove by parole a mandate to make a donation ; Mackenzie r. 
 lirodie, 1859, 21 D., 1048. 
 
 - Implied authority to accept a bill p.r procuration for am.tli.T iiuiy arise in three 
 xviiys, — (1) the party signing per procuration may hold an nthee which of necessity im- 
 plies sucli authority ; (2) the authority may be implied from the practice of a particular 
 Hade; or (3) it may be inferred fn.m a pnvinu.s course of dealings between the parties. 
 A ship-niiisler has no authority to bind the owners in a bill dob London Joint Stock 
 Bank c. A. Stewart & Co., 1859, 21 D., 1327.
 
 37G riiooF OF mandate. § 5G8- 
 
 by the manager as per procuration (it). The tVmrt, however, demur 
 to inferring procuration from isolated acts of persons not in trade. 
 Accordingly, where a person appearing as acceptor of a hill alleged 
 that her name had been put to it by her daughter without autho- 
 rity, the Court, being " satisfied that she was not in trade, nor in 
 use to accept bills, that her daughter .never accepted for her with- 
 oTit special authority, wdiich she had done only about six times in 
 th(^ course of her life," suspended diligence on the bill (o). In 
 England procuration may also be established by parole of verbal 
 autliority (p). But it has been doubted whether the proof is so 
 unlimited in tliis country (r). 
 
 § 569. The possession by a factor of a promissorj^-note or bill 
 for the purpose of drawing tlie interest, which he had received and 
 discharged for several years with the creditor's authority, does not 
 infer a mandate to discharge the principal debt (s). This decision, 
 however, does not impugn the principle that authority to receive 
 and discharge a debt may be proved by such facts and circum- 
 stances as fairly bear that inference (t). Mr Tait holds that such 
 mandates, and mandates to pay money in order to constitute obli- 
 gations, although proveable in this way, cannot be made out by 
 parole of verbal authority («), on account of the risk of the wit- 
 nesses mistaking the purpose of the payment, and of the general 
 practice to employ writing in such cases. This is probably correct 
 as a general rule. But it wall not hold where a party selling move- 
 ables on verlial bargain authorises the buyer to pay the price to a 
 certain person ; for such a mandate is part of a contract proveable 
 by parole. Where money is admitted to have been paid to the 
 creditor by a third party, it would rather seem that parole is ad- 
 missible to show that it was paid by the debtor's order, and was 
 meant to be applied to a certain obligation (tv). Mere possession 
 by an agent of a deposit-receipt in favour of his client, who had not 
 indorsed it, does not imply authority to the agent to uplift the 
 principal (x).^ 
 
 (?i) Tumbiill V. M'Kie, 1822, 1 S., 353. "(o) Lowson v. Matthew, 1828, 2 S., 
 
 502. (i?) A B, 12 Mod., 504, per Holt— Porthouse v. Parker, 1807, 1 Camp., 82. 
 
 (r) Thomson on Bills, 221. («) Duncan v. Clyde Trustees, 1851, 18 D., 
 
 519 ; affirmed 1853, 25 So. Jur., 381. (0 Tait Ev., 300, 302— Sanderson v. Don- 
 
 aldson, 1830, 9 S., 74. (m) Tait, supra. But see Arbuthnot v. Scott, 1765, 5 B. 
 
 Snp., 910. (w) See Foggo v. HiU, 1840, 2 D., 1322. (x) Forbes' Exrs. 
 
 r. Western Bank, 1854, 16 D., 807. 
 
 3 See Stewart r. Central Bank of Scotland, 1869, 21 I)., 1180.
 
 § 572. PllOOF OF MANDATE. 377 
 
 § 570. All iulv(»ciitu sipiJCHiiiiij,' ill Citurt is prcsiiincd to liave u 
 iiiaiiilatu IVoiii his client; or, us the rule is usiuilly expressed, "an 
 advocate's gcnvn is his inaudatc (//)." But this j)rosu]uptioii may be 
 overcome; as a prohative written mamhite may he- sliowu to he a 
 r..rgery (z).* 
 
 § 571. A mandate to an agent to conduct law [)rocee(lings may 
 he ]>rove(l l)y the client's writ or oath. It will also he presumed 
 IVoni the agent's possession of the client's titles relating to the 
 matter in issue, or of a service copy of the summons which the 
 agent was employed to defend (a). And it will be inferred from 
 acts of honnjlogation or recognition by the client of the agency; e.g., 
 his having held meetings with the agent about the business (6) ; 
 having signed pleadings prepared by the agent in his name (c) ; 
 having conversed with the agent about the case, and carried away 
 the process for insi)ection, when it embraced papers lodged for 
 him ((f) ; and the like. So transmitting a bill to an agent presumes 
 a mandate to him to raise diligence upon it (e). Where a law- 
 agent admitted that he was employed by a client to protest a bill, 
 and to raise diligence on it against the debtor, which he did accord- 
 ingly ; but where he denied that he was instructed to carry the 
 diligence into execution ; it was held competent for the client to 
 prove p/'owY de jure his instructions to take that step (/).^ 
 
 CHAPTER VII. — PROOF OF TRUST. 
 
 § 572. Trust may be constituted by a WTiting which both vests 
 
 (y) Stair, 1, 12, 12— Ersk., 3, 3, 33— Mor., voce Advocate. (z) Haniilti.n r. 
 
 !\Iarshall, «n/m— Cowan v. Farnie, 183C, 14 S., 634. (a) Act of Sederunt, 10th 
 
 .Inly 1830, § 30— Hamilton v. Marshall, 25th November 1813, F. C— Muir v. Steven- 
 son, 1850, 12 D., 512. (b) Bryan v. Murdoch, 1824, 3 S., 282. 
 
 (c) Campbell v. Gray. 1821, 1 S., 87. (d) Grant v. Wishart, 1845. 7 D.. 274 
 
 —Wallace v. Miller, 1821, 1 S., 40— Gordon v. Sinclair, 1826, 4 S., 708. 
 
 (e) Macdonald v. Kelly, 1821, 1 S., 101. (/) Highgate r. Boyle, 1819. 
 
 Hume I)., 356. 
 
 ^ lint a party who had been represented by counsel, in a process in which decree had 
 gone out against him, was not allowed to suspend diligence on the decree, on the alle- 
 gation that ho had not authorisid the appearance made for him in the cause. It was re- 
 marked from the bench that the party might perhaps reduce the decree; Young r. List. 
 1862, 24 1)., 587. 
 
 5 Oormie v. Gregor, 1S6-J. 24 D., '.•85, 9.
 
 378 PROOF OF TRUST. § 572- 
 
 the trustee and contains the conditions of the trust, — by an absolute 
 deed qualified by a written declaration of trust, — by such a deed 
 ■with a verbal obligation as to its fiduciary character, — or, where 
 writing is not required for vesting the trustee, by a verbal transfer 
 of the subject, qualified by a written or verbal obligation to ad- 
 minister it for the trust purposes. 
 
 § 573. There is, of course, no difficulty as to the proof of a 
 trust, where its conditions are embodied in a writing ; the document 
 being the best, and the only competent proof of them. Where the 
 right as standing on the deeds is absolute, the obligation to hold in 
 trust may be proved by the writ or oath of the trustee (a). Ac- 
 cording to the older decisions these were tlie only competent modes 
 of proving that an absolute deed was qualified by a trust (b). But 
 towards the middle of the seventeenth century the Court admitted 
 proof by facts and circumstances, and even by parole (c). This 
 loose practice was remedied by the act 1696, c. 25 ; which still 
 regulates the mode of proving trusts. 
 
 § 574. This statute proceeds on the preamble that the intrust- 
 ing of persons without a declaration or backbond of trust in writing 
 was an occasion of fraud, and of many pleas and contentions ; and 
 it enacts, "that no action of declarator of trust shall be sustained 
 as to any deed of trust made for hereafter, except upon a declaration 
 or backbond of trust lawfully sub.scribed by the person alleged to 
 be the trustee, and against whom, or his heirs or assignees, the de- 
 clarator shall be intented, or unless the same be referred to the 
 oath of party simpliciter ; declaring that this act shall not extend 
 to the indorsation of bills of exchange, or the notes of any trading 
 company. "1 
 
 § 575. This act applies to trusts regarding moveable as well as 
 heritable property (d). But where the right in a moveable estate 
 is not constituted by writing, witnesses are admissible to prove that 
 it is held in trust (e). The common application of the act is where 
 
 [a) Act 1696, c. 25— Stair, 1, 12, 17— Ersk., 3, 1, 32—1 Bell's Com, 33— Bell's Pr., 
 g 1994. {b) Per Lord Braxfield in Stewart v. Baunatyne, 1777, Hailes, 762— 
 
 Forsyth on Tr., -54. (c) Stair, supra— Ersk., supra — Cases in Br. Synop, 1893, 4 
 
 —Wright V. Ker, 1G31, M., 12,703. {d) See Knox v. Martin, 1850, 12 D., 719 
 
 —Montgomery, 7th February 1811, F. C— More's Notes, 74. (e) L. Strath- 
 
 jiaver v. M'Beath, 1731, M., 12,757 — More, supra — Forsyth on Trusts, 54. 
 
 1 Where a party suspended a charge on a decree on an allegation of trust, the ques- 
 tion was raised Whether trust could be proved in a suspension, or whether a declarator 
 was necessary? Lord Cowan thougJit it might be proved in a suspension, but the party 
 brought a declarator; Cullen v. Anstruther, 1856, 18 D., 592.
 
 § 57*;. PROOF OK TRUST. 379 
 
 the trustee's right Hows directly IVoiii the truster. It is also appli- 
 cable where the right is derivcfl IVuiu a thinl party by the truster's 
 desire ; e.g., where a party selling an estate grants an absolute dis- 
 position to a person, who is truly trustee for the i)urchaser (/). 
 
 § 57G. But where the trust arises not from the act or consent 
 of the truster, but from the act of the trustee, — e.g., his sitontaneous 
 interference as a negotiorum gestor, — the trust may be proved by 
 parole (</). Nor is the proof limited to writ or oath where the party 
 claiming the beneficial right alleges that the dispouee under a deed 
 ex facie absolute had l)een employed by him to purchase the pro- 
 perty, and had wrongfully taken the titles in his own name ; be- 
 cause that is truly an averment of a purchase for the employer 
 under a mandate, and of a fraudulent attempt to defeat the pur- 
 chasers right ; whereas it is essential to a trust that the party 
 vested witli the subject should have acquired it by the consent of 
 the truster in order to fulfil the trust purposes (h). On the other 
 hand, the averment that the mandatory had been empowered to 
 take the titles in his own name for behoof of his employer involves 
 a proper case of trust, and can only be proved by the trustee's writ 
 or oath (i). 
 
 (/) Diiggan v. Wight, 1797, M., 12,761 ; affid., M., 12,767—1 Bell's Com., 33. 
 
 (,7) Sprucl V. Crawford, 1741, M., 16,2012—1 Bell's Com., 33. 
 
 (h) In Tweedie v. Loch (no date), 5 B. Sup., 630, and Skene v. Balfour Ramsay, ib., 
 a proof before answer was allowed of such an averment. In Maxwell v. Maxwell, ib., 
 the Court allowed a "proof," and in Corbet v. Douglas, 1808, Hume D., 346, a proof 
 prout de jure. The rule in the text is well stated by Lord Glenlee in Mackay v. Ambrose, 
 182'.), 7 S., 699, and by Baron Hume in his report of Boswell v. Selkrig, 1811, Hume 
 D., 350, where a proof by facts and circumstances was admitted. See also Mudie v. 
 Ouchterlouy, 1766, M., 12,403 ; Hailes, 15 S. C. 
 
 Professor Bell in his Priuciiiles, § 1994, (1), founding on Alison v. Alison, 1771, M., 
 12,760; 5 B. Sup., 630, S. C— Duggan v. Wiglit, 1797, M., 12.761 ; afl"d., M., 12,767— 
 and Mackiiy v. Ambrose, mpra. lays down that the rule stated in the text was abandoned, 
 and that the statutory proof is now required in the cases referred to. But the learned 
 Professor's view is not supported by the autliorities which ho cites. In Alison v. Alisou, 
 us reported by Mr Tait (5 B. Sup., 630), it was mutually agreed that tlie title should be 
 taken in the name of the person who had been employed to make the purchase ; the 
 object being to defraud the creditors of the real purchaser, and a proof by " facts and 
 circumstances " was allowed. In Duggan v. "Wight, where proof by writ or oath wa^s 
 held necessary, the real purchaser was a Roman Catholic, and disqualified from possess- 
 ing heritage; and it was agreed that the title should be taken for his behoof in name 
 (pf iiis agent. And in tlie case of Mackay v. Ambrose, the facts were of nearly the same 
 eiiaracter. [i) Duggan v. Wight, supra — Mackay c. Ambrose, sujjra — Boswell v. 
 
 Selkrig, xuimi. Hume D., 350. 
 
 2 See tiie ease of Spreul v. Crawford, supra, explained in Marshall v. I-ycll, 1859, 
 21 D.. 514.
 
 380 PROOF OF TRUST. g 577- 
 
 § 577. An averment that money deposited in bank in name of 
 one ol" the partners of a company really belonged to the firm was 
 held to come under the rules of partnership, not of trust, and to 
 be proveable prout de jure (h). And writ or oath was held not to 
 be the only mode of proving that payment of a bill to one of the 
 partners of a company had been made for the general behoof Q). 
 
 % 518. The question has been raised, whether the act 1696 
 applies to cases between the trustee and third parties, or only to 
 cases where the truster or those in his right insist against the trus- 
 tee. If a case involves fraud or conspiracy to defeat the just right 
 of the third party, there seems to be no doubt that proof, proiif de 
 Jure is admissible to establish the latent right. This is well illus- 
 trated in actions to set aside fraudulent conveyances by bankrupt's 
 to conjunct and confident persons (m). So where the purchaser of 
 the life-interest of an heir of entail granted to his brother a lease 
 of the entailed lands ; and where a sub-lease at a large increase of 
 rent was contracted immediately afterwards ; it was held competent 
 to prove prout de jure that the first lease was truly in trust for the 
 benefit of the lessor, in order that he might draw the surplus rent 
 after the death of the heir of entail (n). On the same principle it 
 was held competent for freeholders objecting to a claim of enrol- 
 ment to prove jjrow^ dejure that the claimant's alleged qualification 
 Avas confidential and nominal (o). And where a widower alleged 
 that funds in bank in name of his wife's sister had truly belonged 
 to his wife, the Court allowed a ])roof before answer, and were of 
 opinion that, the averment being of a conspiracy between the wife 
 and her mother and sister to defeat the husband's jus mariti, the 
 act 1696 did not apply (j:>). 
 
 § 579. The rule has sometimes been laid down lu'oadly that, 
 apart from considerations of fraud, a third party interested in prov- 
 ing a trust is not limited to the trustee's writ or oath ; because he 
 never had an opportunity of securing proof by the trustee's writ, 
 and he ought not to be shut up to proof by the oath of one to whose 
 
 (k) Baptist Churches v. Taylor, 1841, 3 D., 1030. See also Kilpatrick v. Kilpatrick, 
 1841, 4 D., 109. (l) Jackson v. Munro, 1714, M., 16,197. The reporter men- 
 
 tions that the decision went on the exception of bills and notes at the end of the act. 
 But that is probably a mistake, as the exception only applies to indorsations. See on 
 this case Tait, 310, and More, 74. (m) 2 Bell's Com., 192. 
 
 (w) L. Elibank v. Hamilton, 1827, 6 S., 69. (o) Ferrier v. Morcliead, 1790, 
 
 M., 8772. But the party who granted the title can only prove by the claimant's writ 
 or oath that it was in trust ; Douglas v. Ualrymple, 1770, 2 Pat. Ap. Ca., 187. 
 
 (p) Harper v. Hume, 16th July 1850, 22 Sc. Jur., 577. Sec also ? 575 {h).
 
 § 582. PEOOF OF TRUST. 381 
 
 lii.iKnn- or veracity ho liu<l nut tnistod (>•). The point, howcw-r, 
 has Liot been decided ; and it woidd seem that a proof jrr/'ow/ dejure 
 in such cases is inconsistent with the terms of tlie statute (s).^ 
 
 § 580. A person may prove j^rout dejure that an absolute ri^rht 
 in his favour is truly a trust (/). 
 
 § 581. With regard to the writs l)y which trust may be [)r(»ved, 
 any holograpli or probative writing signed })y tlie trustee, which 
 fairly implies a trust, will suffice, although it is neither a formal 
 deed nor an express admission of trust (w). Thus where a disi)Osi- 
 tion ex facie absokitc was alleged to be a trust for the disponee and 
 another, the disponee's letters importing a trust, with a deed signed 
 by them liotli, in wdiich they were described as "joint proprietors" 
 of the subject, liills for the price, and receipts for rents in their joint 
 names signed by the ex facie absolute proprietor, and some other 
 adminicles, were held sufficient (x). And a declaration of trust in 
 a stranger's handwriting, followed by the words " I agree to the 
 above," which were holograph of the disponee and signed by him, 
 is sufficient (ij). A trust has also been held proved by accounts 
 docquetted by the trustee along with parole evidence (z). 
 
 § 582. In one case it was even found that although the w^rit 
 declaring the trust is not holograph or tested, yet if the signature 
 to it is genuine, the requisite of the act is complied with, the de- 
 claration being " lawfully subscribed " by the trustee (a). In an- 
 other case it was observed by Lord Cringletie that a letter merely 
 signed by the trustee is enough, if he acknowdedges the subscrip- 
 tion (b). This view seems to be w^ell founded, according to the prin- 
 
 (r) Per L. President Hope in Scott v. Miller, 1832, 11 S., 2G— per curiam in Lord 
 Elibank v. Hamilton, 1827, 6 S., 69— Tait on Ev., 311. (s) In support of this 
 
 view see Elch. Notes to Stair, p. 75 — per Lords Balj^ri-ay and Gillies in Scott v. Miller, 
 supra— Forsyth on Trusts, G2. (/) Murdoch v. Wyllie, 1832, 10 S., 445. 
 
 (m) See Stirling v. Stirling, 1822, 1 S. (new ed.), 501— "Wood, Small, & Co. c. Spence, 
 1833, 12 S., 42— Ramsay v. Butchers of Perth, 1748. M., 12,757— Montgomery's Ex.. 
 7th February 1811, F. C. (x) Macfarlane v. Fisher, 1837, 15 S., 978. 
 
 (y) Bryson v. Cra%vford, 1833, 12 S., 39. (z) Stewart v. Bannatyue, 1777. 
 
 Hailes, 762 ; 5 B. Sup., 631, S. C. (a) Bryson v. Crawford, supra. 
 
 (b) Mackay v. Ambrose, 1829, as in 1 De. and And., 125. 
 
 3 Where tlie acceptor of a bill, in a snsjiension of a charge by the holder, alleged 
 that tlie holder was trustee for a third party, and that that party had discharged the ac- 
 ceptor of his obligations under the bill ; it was held that the act did not apply, because 
 the question was not "between a truster, or one in his right, ami a trustee or one in his 
 right, but between an alleged trustee and a third party," who had been a debtor of the 
 truster; and the Court accordingly allowed a proof; Middb ton v. Rutherglen, 1861. 23 
 1).. .VJC.
 
 382 PROOF OF TRUST. § 582- 
 
 ciple of rei interventus ; because the absolute right was given over on 
 the footing of the trustee obliging himself to divest ; and therefore 
 matters are not entire, so as to entitle him to resile from his im- 
 probative deed (c). 
 
 § 583. According to the statute, the writ must be subscribed 
 by the trustee {d)} 
 
 § 584. Trust may also be proved or inferred from the trustee's 
 admissions on record ; which, according to Scotch rules of plead- 
 ing, are conclusive against the party who makes them (e). 
 
 § 585. Although evidence 'prout de jure is inadmissible for 
 proving a trust, yet if a trust to some effect has been proved by 
 writ or oath, or by admissions of the trustee on record, the Court 
 will allow its conditions to be expiscated by the trustee's judicial 
 examination (/), by facts and circumstances {g), and even by parole 
 e-\adence {h)} 
 
 (c) See Rutherfords v. Rutherford's Tr., 1808, Hume D., 919— Buchanan v. Bu- 
 chanan, 1775, M., 17,051_Spottiswood v. Prestongrange's Crs., 1741, M., 16,811— Neill 
 V. Andrew, 1748, M., 10,406, 16,981. See the chapter on rei interventus, infra. 
 
 (d) Act quoted supra, 'i 574 — See also Watson v. Forrester, 1708, M., 12,755. 
 
 (e) Adamson v. Adamson, 1834, 12 S., 359— Chalmers v. Chalmers, 1845, 7 D., 865 
 — Seejaer curiam in Bryson v. Crawford, 1833, 12 S., 39 — and supra, ? 407. 
 
 (/) Muir V. Gemmell, 1805, Hume D., 342. {g) Davidson v. Aikman, 
 
 1805, M., 14,584 ; 1 Dow, 1 ; 2 Bligh, 529, S. C— Wood & Small v. Spence, supra. 
 (Ji) Stewart v. Bannatyne, 1777, 5 B. Sup., 6310 ; Hailes, 762, S. C. 
 
 * It seems settled that a writing signed by the trustee is sufficient, if the authenti- 
 city of tlie subscription be admitted or proved ; and it appears doubtful whether the 
 subscription of the trustee is essential. In a declarator against two defenders to have it 
 found that one of them, and a party deceased, represented by the other, had held a lease 
 in trust for the pursuer; the former defender admitted the trust, but the second defender 
 denied it. The proof against him consisted chieily of the books of the alleged trustee, 
 which were holograph of liim, but not signed by him. The Lord Justice-Clerk (Hope) 
 and Lords Wood and Cowan indicated an opinion that these books, as the writ of the 
 alleged trustee, were competent proof of trust ; but holding that, when proof of that kind 
 was admitted of trust, it was necessary that the proof should be clear and unequivocal, 
 they thought the books did not unequivocally establish trust, and, therefore, that the 
 proof was insufficient ; Seth v. Hain, 1855, 17 D., 1117. But in a subsequent case Lord 
 Deas, referring to the case of Seth v. Hain, said that he was not prepared to affirm that 
 the subscription of the alleged trustee could be dispensed with ; Walker v. Buchanan, 
 Kennedy, & Co., 1857, 20 D., 259, 269. In a still later case, the evidence relied on in 
 a declarator of trust, brought after the death of the alleged trustee, was a letter written 
 by his agent, and the oath of the agent that the letter had been written on the verbal 
 instructions of the alleged trustee. This evidence was rejected as not satisfying the 
 statute ; but had the instructions to the agent been embodied in a writing, signed by 
 the alleged trustee, the judgment would probably have been different ; Marshall v. 
 Lyell, 1859, 21 D., 514. 
 
 5 In Walker v. Buchanan, Kennedy, & Co., sjqna, the question was wliethor a deed
 
 § 588. PROOF OF TRUST. 383 
 
 § oBO. In general tlio writs oi tlic granter of" an altsolutc dis- 
 position cannot limit the right of the grantee ; yet where the 
 granter, l)eing al)roa(l at the time of executing such a deed, in 
 transmitting it executed to the disponee informed him \>y letter 
 that he signed only in trust, and on the faith of a l)ackl)ond hcing 
 prepared without delay, the Court rightly held that the letter must 
 be read along witli the deed, as qualifying tlie right of the dis- 
 ponee (/). 
 
 CI I A ITER VIII. — PROOF OF INTROMISSIONS WITH MOVEABLES AND 
 
 MONEY. 
 
 § 587. Intromissions with corporeal moveables, except sums of 
 money, may be in-ovedprout dejure {a). 
 
 § 588. When a person has unwarrantably intromitted with 
 money belonging to another, it would seem that not only the fact of 
 intromission, but also the amount of money received, may be proved 
 prout dejure; because the person to whom the funds belonged had 
 no power of securing written proof, and he did not trust to the in- 
 tromitter's oath (6). In general, also, such cases involve fraud, or 
 at least a wrongful act, on the part of the intromitter. These prin- 
 ciples were applied, in the last reported case, as to proving intro- 
 mission l)y one who was not an executor with funds belonging to a 
 
 (j) Robertson v. Duff, 1840, 2 D., 279, particularly Lord Fullerton's opinion, ib., p. 
 294— See supra, § 184, et seq. (a) Stair, 4, 43, 3— Ersk., 4, 2, 21— Spence v. 
 
 Chaplin, 1706, M., 12,333— Hamilton v. Hamilton, 1626, M., 12,359 (note)— Bisset v. 
 Bisset, 1624, M., 12,358. In Mitcliell v. Berwick, 1845, 7 D., 382, this doctrine was ex- 
 tended to a case where a tenant avi'rred that his landlord had got payment of rent by 
 the sale of crop and stock which had been sequestrated, and which the landlortl liad sohl 
 under an arranfjumcnt with the tenant. (6) See Ersk., supra — Tait, Ev., 
 
 313. 
 
 ex facie absolute was in trust. The lioldcr of the deed admitted that it had, at first, been 
 qualified by a back letter, but that the letter had been destroyed by agreement of par- 
 ties. In this case it wiis held that the presumptions of statute being intended for the 
 protection of writs in their constitution apparently absolute, while the vrrit in question 
 was proved to have been ab origine a security, it lay on the party alleging that the deed 
 had been changed from a deed in security to an absolute deed, to prove that allegation. 
 But liOrd Dcas thought that the rule of the statute should have been aiiplied, and the 
 deed sustained as an absolute deed, because there was not the statutory proof of trust. 
 See ante, § 16, note 2i.
 
 384 TROOF OF IXTKOMISSIOX. § 588- 
 
 deceased person ; \)rooi prouf dejinr liaviiig been received (c). In 
 some earlier cases, however (which are very shortly reported), the 
 amount of money so iiitromitted with was allowed to be proved only 
 by the intromitter's writ or oath (cZ). But these decisions would 
 probably not be followed now. 
 
 § 589. It has been held in several cases that where an heritable 
 creditor has entered into possession of the subject of his security 
 and drawn rents, the debtor, or one in his right, alleging that the 
 intromission has been suflScient to extinguish the del)t, may prove 
 that idct prout dejure (e). The reason is, that he did not trust to 
 the intromitter's oath, and he had no means of securing proof by 
 that party's writ ; for, even if written acknowledgments had been 
 granted to the tenants in the land, these may have been lost to the 
 party founding on the intromission, o\sdng to causes beyond his 
 control. The authority of the decisions referred to is impaired by a 
 case where parole proof that an heritable creditor had extinguished 
 the debt by intromission with rents, was held inadmissible by Lord 
 (Ordinary) Mackenzie, and the Court adhered to his judgment (/). 
 His Lordship felt difficulty in allowing the tenants to discharge 
 themselves of their rents by their own oaths, and he did not look 
 more favouralily on the oaths of third parties deponing that they 
 had seen the payments made. The Inner House seem to have 
 taken the same view. 
 
 § 590. The law is not settled as to the admissibility of parole 
 to prove intromissions by one authorised to receive money belong- 
 ing to another. The general rule probably is, that the trust reposed 
 in such a person implies that the amount of liis intromissions can 
 be proved only by his writ or oath, and not by parole (cj). But if 
 there is ground for suspecting fraud, or even if a specific case of 
 fraud is averred (A), there seems to be no reason to doubt that parole 
 mil be admitted ; otherwise a rule designed for the protection of 
 bonajide intromitters would secure the fraudulent from detection. 
 
 (c) Moffat V. Phin, 1671, M., 12,369. (d) Bisset v. Bisset, sz/pro— Hamilton 
 
 V. Hamilton, supra— Ker v. Eobertson, 1626, M., 12,359, note. 
 
 (e) Fowlls V. L. Lovat, 1626, M., 12,735, ad finem—W ishart v. Arthur, 1671, M., 
 9978— Baillie v. Menzies, 1711, M., 9990— Stair, 4, 43, 4— Ersk., 4, 2, 20— Tait, 324. 
 See Bowman v. Ker, 1697, 4 B. Sup., 384. (/) Robison v. Eae, 1830, 8 S., 
 
 541 ; 2 De. and And., 284, S. C. (ff) This follows e converse from Ersk., 4, 2, 
 
 21. It is supported by Hall v. Bar, 1647, 1 B. Sup., 445— Mackenzie v. L. Elibank, 
 1709, M., 12,372— and Cooper v. Donald, 1827, 6 S., 213. See also cases noted infra, 
 I 620. The contrary case of Vise. Oxenford v. Cockburn, 1677, 1 B. Sup., 560, seems 
 to have involved fraud, or something approaching it. [h) Vise. Oxenford v. 
 
 Cockburn, mpra. See also aupra., g^ 344, 345, and infra, \ 628.
 
 § 592. PROOF OJ.' INTROMISSION. 385 
 
 § 591. Where tlio })iout" is at the instance of tlie iutromitter — 
 e.g., in order to estalilisli linmoh^gation, rei inlerventus, possession, 
 and the like — parole is admissible (/). And it is thought that in 
 any case evidence ^>rott< dejure may be received, \vh(.ro tiie object 
 is to prove intromission merely as a fact, and not to lix on the- iutro- 
 mitter the receipt of particular sums of money .^ 
 
 CHAPTER IX.— PROOF OF LOAN OF MONEY. 
 
 § 592. A loan of money beyond £100 Scots (£8:6:8 sterlino) 
 can only be proved by the debtor's writ or oath on reference («). 
 Lord Stair lays down this rule generally as to all loans (b). But it 
 would seem that, when the amount does not exceed £100 Scots, 
 parole is admissible (c), unless it is the balance of a debt beyond 
 that sum (d). 
 
 Witnesses have been rejected where the defender admitted hav- 
 ing received the money, but denied that it was in loan (e). 
 
 It will not open the door to parole that it is tendered in support 
 of an iniprobative document signed by the debtor (/).^ 
 
 (j) Chalmers v. L. Craigievar, 1628, M., 12,368. (a) Gray v. Grant, 1789, 
 
 M., 4474— Tarbet v. Beuiict, 1803, Hume D., 500— Paterson v. Mackenzie, 1824, 3 S., 
 620— M'Master v. Brown, 1829, 7 S., 337— Biruie's Assignee v. Darroch, 1842, 4 D., 
 360. In Tarbet v. Bennet, and M'Master v. Brown, the defender's judicial examination 
 was held incompetent. (6) Stair, 4, 43, 4. See also Hume D., 500, note — 
 
 Tait Ev., 307. (c) Ersk., 4, 2, 20— Hammermen of Glasgow v. Crawford, 1628, 
 
 M., 12,408— Thallane v. Orrock, 1673, M., 12,585. See m/ra, § 611. (d) Clark 
 
 V. Glen, 1836, 14 S., 966. (e) Hamilton v. Lindsay, 1824, as noticed in 1 W. 
 
 S., 35. See Eoss v. Cra\\'ford, 1847, 19 Sc. Jur., 039. (/) Stewart r. Symes. 
 
 12th Dec. 1815, F. C. 
 
 1 It was held competent to Tprove prout dejure that the collector for a public iustitii- 
 tion had, during a series of years, received certain sums and failed to account for them, 
 though the accounts had been examined yearly ; Glasgow Royal Infirmary v. Caldwell, 
 1857, 21 D., ]. See Laing v. Laing, 17th July 1862, 24 D., 1362, as to the effect of 
 annual docquets of the accounts of an inspector of poor, in an action of count and reck- 
 oning against him ; supra, 'i 152, note '. 
 
 2 See Dowdy v. Graham, 1859, 22 D., 181. Where there is a written acknowledg- 
 ment of receipt of money, the party who received the money must sliow competently 
 tliat he did not receive it in loan ; Eraser v. Bruce, 1857. 20 D.. 115. See § 153, note 3, 
 and § 367, note '. 
 
 In an action for payment of money alleged to have been lent, it was held that tho 
 debt was not proved scripto, by two letters of tho debtor importing that he was in debt to 
 VOL. I. '1 li
 
 386 PROOF OF PROMISE TO PAY MONEY. § 593- 
 
 CHAPTER X. — PROOF OF PROMISE TO PAY MONEY\ 
 
 § 593. Writ or oath of party is requisite in order to prove a 
 promise to pay a sum exceeding £100 Scots (g) ; Lut a promise to 
 pay a smaller sum may be proved proid dejurc (Ji). And it would 
 seem that this is also the case when the amount is £100 Scots ex- 
 actly (J). In calculating the amount, the stipulated penalty is not 
 taken into ^dew (Jx). If the obligation as regards the debtor exceeds 
 the sum referred to, parole is not admissible on account of there be- 
 ing two or more creditors, each of whom is only entitled to a smaller 
 sum (T). If the obligation is beyond £100 Scots, witnesses are ad- 
 missible to the effect of sustaining decree for that sum (m). 
 
 § 594. It has been held that the objection to proving a promise 
 to pa}^ money by parole must be taken when the evidence is ten- 
 dered, and is barred by the debtor's delay to plead it till after the 
 proof has been adduced (?^). 
 
 [g] Fotheringham v. Watson, 1623, M., 16,830— Anderson v. Tarbat, 1668, M., 
 16,836— Gordon v. Murray, 1765, M., 16,851— Walker v. Home, 1827, 6 S., 204. Cm- 
 tra, Drummond v. Bisset, 1551, M., 12,381— Aitchison v. Herring, 1636, M., 12,275— 
 Dickson v. Dickson, 1671, M., 17,020— Colquhoun v. M'Rae, 1687, M., 12,388; most of 
 wliicli are of older date than the cases cited in support of the text. (Ji) L. 
 
 Lernoch v. L. Preston, 1636, Durie, 798— Craw v. Ciilbertson, 1663, M., 12,384. See 
 Cheyne v. Keith, 1664, M., 12,385. [i) L. Lernoch v. L. Preston, supra— 
 
 Hammermen of Glasgow v. Grant, 1628, M., 12,408— Ochiltree v. Miller, 1634, M., 
 16,834— Gordon v. Murray, 1765, M., 16,851— Anderson v. Tarbat, 1668, M., 16,836. 
 Contra, Bryce v. Kirkpatrick, 1675, M., 12,282. {k) Halkerston v. Kadie, 1628, 
 
 M., 16,831. (I) Anderson v. Tarbat, supra. (m) Gordon v. Murray, 
 
 1765, M., 16,851. {n) Wood v. Robertson, 1672, M., 12,225— Hay v. Boyd, 
 
 1822, 3 Mur., 16. 
 
 the punsuer, but not specifying either the amount or nature of the debt, and the action 
 was dismissed ; Hilson v. Marshall, 1861, 23 D., 1276. In an action for payment of 
 £30, as having been lent to the defender, the pursuer founded on an I U by the de- 
 fender's clerk for the defender. The defender answered that the pursuer owed him a 
 larger sum ; and he proved that he had sent his clerk to demand payment, and not a 
 loan, and had not authorised his clerk to give an I U. It was held that the pursuer 
 had not proved the loan ; Woodrow v. Wright, 1861, 24 D., 31.
 
 § ^idl. PROOF OF (JAlJTrON. 387 
 
 ClIAPTKK XI. — I'UOOK OK OHATUITOUS PROMISES. 
 
 § 595. Gratuitous promises Ciiii only l)e proved hy writ or oatli 
 on rt Irrciice, even where tlic aiiiniini is within £100 Scots(o). But 
 when sucli a })romise forms [nut ul' a eontra(3t jtrovetihle liy wit- 
 nesses, it may he competently included in tlie proof C/>).^ 
 
 CHAPTER XII. — PROOF OF CAUTIONARY OBLIGATIONS AND 
 OBLIGATIONS OF RELIEF. 
 
 § 51)6. Tlie many cases which have occurred as to the proof of 
 cautionary ol)hgatious are not marked hy uniformity, nor are the 
 rules on the point accurately defined by our institutional \VTiters. 
 
 The first question is whether, apart from any question of rei in- 
 terventus, a cautionary obligation can be constituted without writ- 
 ing. 
 
 § 597. Professor Bell (a) lays down that " in Scotland the rule 
 is that no cautionary obligation or guarantee can be constituted l)y 
 parole agreement; so that an acknowledgment or a reference to oath 
 will not constitute an eflPcctual guarantee." In another place (6) 
 the same learned author classes cautionary obligations among con- 
 tracts for which wTiting is required only in evidence, not ex solen- 
 nitate, and which may be proved by oath or admission of party. 
 The latter of these contradictory views is the correct one. It ac- 
 cords with the law laid down by Lord Stair (c), that " caution is in- 
 terposed any w^ay by which the consent is freely and truly given." 
 Mr Erskine (cZ), taking the same view, includes cautionary obliga- 
 tions among those for which writing is commonly used, as distin- 
 gTiished from those to the constitution of which it is essential. And 
 
 (o) Stair, 1, 10. 4— Ersk., 4, 2, 20— Tait Ev., 304— A B, 1672, 2 B. Sup., G27— 
 Weir V. Russell, 1703, M., 12,331— Campbell v. M'Lanchlan. 1752. M., 12,286— Millar 
 i>. Termamoudo. 1771, M., 12,395; Hailcs, 409, S. C. (p) Stuir supra. See 
 
 infra, g 599. {a) 1 Bell's Com., 371— See also Bell's Pr., ? 248. 
 
 (6) Bell's Pr., 2 18. (r) Stair, 1, 17, 3. (f/) Ersk.. 4. 2. 20. 
 
 • Maekcnzie v. Brodie, 1859, 21 D., 1048, supra, § 367. note i. 
 
 2 b2
 
 3S8 PKOOF OF CAUTION. § 597- 
 
 iii scATral cases the Court Lave held that olJigatiuiis of this kind 
 may he proved hy writ or oath of i)arty (e).^ 
 
 § 598. But there arc sorae cautionary ohligatious, whicli hy 
 immemorial usage have heen constituted only hy writing. In these 
 there seems to he locus penitentiae from the verhal undertaking ; 
 hecause where a party agrees verbally with a view to a suhsequent 
 written contract, the obligation is held to he suspended till the 
 writing has heen executed (/). This principle applies to judicial 
 caution (g); and probably it would he held in regard to caution for 
 public functionaries discharging their duties, and to caution for 
 cash credits {Ji). 
 
 § 599. AVhile, however, other cautionary obligations than those 
 just noticed may be constituted verbally, it is settled law" that they 
 can oidy be proved by the cautioner's writ or oath on reference, and 
 not by parole (i). To this rule there is only one exception, namely, 
 cautionary obligations wdiich form integral parts of such contracts 
 concerning moveables as are proveable by witnesses. These, as 
 well as the principal obligations to which they are accessory, may 
 be proved proM^ dejure (k).^ If, however, the caution to such an 
 obligation was interposed after an interval, it can only be proved 
 by the cautioner's writ or oath (?). 
 
 § 600. The next question is, whether the writing by which a 
 cautionary obligation can be proved must be holograph or proba- 
 tive ; or wdiether mere subscription to a document which imports 
 such an obligation is sufficient. 
 
 (e) Auchinleck v. Gordon, 1580, M., 12,382— Donaldson v. Harrower, 1668, M., 
 12,385— Deuchar v. Brown, 1672, M., 12,386. See also per curiam in Campbell v. 
 M'Lauchlan, 1752, M., 12,286— More's note to Stair, 1, 17, 3. (/) See infra, 
 
 § 608, et seq. {g) Shirra v. Douglas, 1798, M., 16,946— Chaplin v. Allan, 1842, 
 
 4 D., 616. It would seem from the first of these cases that rei interventus on the verbal 
 obligation will not make it efi"ectual. (h) See More's note to Stair, 1, 17, 3. 
 
 (2) Ersk., 4, 2, 20—1 Bell's Com., 371— Bell's Pr., § 18; 248— Cases supra, note (e) 
 — Eeid V. Proudfoot, 1758, M., 12,344. This holds although the obligation be under 
 £100 Scots; Tassie v. M'Lintoch, 1764, 5 B. Sup., 899— Deuchar v. Brown, 1672, M., 
 12,386— Wood V. Robertson, 1672, M., 12,225. {k) Ivory's note to Ersk., 4, 2, 
 
 20— Bell's Pr., § 249— More's note to Stair, 1, 17, 3— Gib v. Walker, 1751, Elch., 
 " Cautioner," No. 19— Bell, 13th Nov. 1812, F. C— Ehind v. Mackenzie, 20th Feb. 
 1816, F. C. See Campbell v. M'Lauchlan, 1752, M., 12,286— M'Ewan v. Crawford, 
 13th Feb. 1816, F. C— These cases are noticed infra, § 601. [l) Campbell v. 
 
 M'Lauchlan, supra — Campbell v. Monro, 1815, Hume D., 106 — Deuchar v. Brown, 1672, 
 M., 12.386. 
 
 1 Altered by the Mercantile Law Amendment Act, 19 and 20 Vict., c. 60, ? 6. See 
 infra, \ 601, note *. 
 
 2 Altered by Mercantile Law Amendment Act, \ 0. See infra, % 601, note *.
 
 § GOO. PROOF OK CAUTION. 389 
 
 (1.) 11' tlic iiiloiiiial oliligatioii luis l,»oen interposed in the course 
 of trade {<'.(j., a guarantee for goods already furnished) it is effec- 
 tual, althougli it has not l)eon folluwed l)y rei mferveutufi; writings 
 hi re mercaforid l)eing among those to which tlie statutory solem- 
 nities do not apply {in). 
 
 (2.) Tf (lie cautionary ohligation, altliough not in re merraforiff, 
 has heen followed hy ret mfervcntus, it will he effectual, although 
 tlie writing which emhodies it does not bear the statutory solemni- 
 ties. The rules as to the acts sufficient to constitute rei interventns 
 are considered afterwards {n). It is enough to mention here that 
 the right to resile from an improbative deed can only be exercised 
 while matters are entire, and is excluded where anj^thing has taken 
 place under the contract by which the relative position of the par- 
 ties has been materially altered. Some cases illustrative of the 
 doctrine are collected below (o). 
 
 (3.) When the case does not come within cither of the excep- 
 tions tlms noticed, it is settled law that a writing, in order to con- 
 stitute a cautionary obligation, must be either holograph or prijba- 
 tivo in terms of the acts regarding the autlientication of deeds (73). 
 If it is merely subscribed by tlie cautioner witliout the statutory- 
 formahties, it is null, although tlic party foinuling on it offers to 
 
 {m) 1 Bell's Com., 325—1 Bell's Illust., 176— Thomson v. Gilkison, 1831, 9 S., 520— 
 Goodlet Campbell v. Lennox, 1739, M., 16,932, 16,979— Clark v. Ross, 1779, M., 16,942, 
 as reported in Hailes, 817. In Paterson v. Wright:, 31st January 1810, F. C, afl'd. 
 4th July 1814, Appx. to 15 F. C, 506, tlie Court were much divided in opinion as to 
 wliotlier a guarantee for part furnishings is a document in re ncrcatoria; and the lean- 
 ing of the decision is against its being so considered. The point did not require to be 
 decided owing to the guarantee in that case embracing both p:ist and future furnisliings ; 
 and as the latter had been made on the faith of the guarantee, the rei interventns was 
 held to have validated the obligation as a whole, for the obvious reason, that the future 
 furnishings would not have been made except on the footing of a guarantee for the price 
 not only of them but of the others also. It is thought that, according to correct prin- 
 ciple, as well as on the authorities cited above, a guarantee for goods already furnished 
 is a proper mercantile transaction ; and this seems to have been the view of the Court 
 in two late cases, where the point was noticed incidentally from the bench, namely, Bal- 
 lantyne v. Carter, 1842, 4 D., 419 ; Johnston v. Grant, 1844, D., 875. 
 
 [n) P. ii, b. 1, t. 1, 0. 4, on rei intervmtus. (0) Brown v. Campbell, 1794, M., 
 
 17,058— Sinclair v. Sinclair, 1795, Bell's Fo. Ca., 140— Manderson v. M'Niven. 1802, 
 Hume D., 90— Douglas v. Clapperton, 1809, ib., 105— Dunmore Coal Co. v. Young, 1st 
 Fibruary 1811, F. C— McNeil v. Black, 1814, Hume D., 103— Miller v. Dott, 1814, ib., 
 105— Trotter v. Martin, 1817, ib„ 105— Grant v. Macdonald. 1827, 5 S., 317— Martin v. 
 Wingate, 1828, 6 S., 859— Hamilton v. Wright. 1836, 14 S.. 323 ; aft'd., 3 S. and M-L., 
 127— Taylor r. Simson, 1836. 14 S.. 935- Ballantyne v. Carter, 1842, 4 D., 419— John- 
 stone V. Grant. 1S44. 6 D., 875— Paterson v. Wriglit. mpra, [m). (p) See cases 
 analysed in 1 Bell's Illust.. 174. et seq.
 
 390 PROOF OF CAUTION. § 600- 
 
 prove the genuineness of the subscription by parole or by oath on 
 reference (r), or although the fact be admitted on record (s).^ 
 
 (4.) The question is still open, whether a guarantee for advances 
 by a bank to a merchant in the course of trade is valid, if it is 
 merely subscribed by the obligant, or whether it must bear the sta- 
 tutory solemnities. On the one hand it is maintained that such 
 transactions are res mercatoriae, a banker being merely a money 
 merchant ; and that as a guarantee for the price of past furnishings 
 of goods is valid although not holograph or tested, so ought a gua- 
 rantee for furnishings of money {£). On the other hand it is con- 
 tended, on grounds Avhicli, if more in accordance with law are less 
 consistent with justice, that a distinction should be drawn between 
 obligations Avhich are really commercial in their character and 
 those which have only an accidental relation to commerce ; and 
 that advances of money, although to a merchant, fall under the 
 latter class (m). 
 
 § 601. It has sometimes been considered that I'ei interventus 
 proceeding on a verbal guarantee, opens the door to parole proof of 
 the obligation {x). But the law is now settled, that even in such 
 
 (r) Crichton v. Syme, 1772, M., 17,047— Edmonstone v. Laug, 1786, M., 17,057— 
 Bell's Pr.. i^ 248-1 Bell's Illust., 175— More, 104. In Welsh v. Ker, 1823, 2 S., 126, 
 where reference to oath was allowed to prove the verity of the subscription, it appears 
 from the session papers that there was rei interventus. (s) Edmonstone v. Lang, 
 
 sMjsro— Walker v. Duncan, 1785, Hailes, 985— Wallace v. Wallace, 1782, M., 17,056— 
 More's note to Stair, 1, 17, 3. This doctrine is implied in the cases upon rei interventus 
 setting up an informal cautionary obligation. [t) In support of this view see 
 
 Thomson v. Gilkison, 1831, 9 S., 520 — per Lords Mcdwyn and Cockburn in Johnston v. 
 Grant, 1844, 6 D., 875 ; and per L. Cockburn (Ordinary) in Ballantyne v. Carter, 1842, 
 4 D.. 419. (m) See per Lords Moncrieff and Just.-Cl. Hope in Johnston v. 
 
 Grant, supra, and per Lords Gillies and FuUertou in Ballantyne v. Carter, supra. 
 
 (x) Johnstone, 1687, M., 12,388— See Porteous v. M'Beath, 1812, Hume D., 98. The 
 doctrine of rei interventus does not properly apply to a verbal guarantee ; as writing is 
 not essential to the constitution of a cautionary obligation. See supra, § 597. 
 
 3 This is contrary to the doctrine stated by Professor Bell, Prin., ? 249 (3), that a 
 writing of which the subscription is acknowledged is good evidence of cautionary. But 
 the iTile stated in the text has recently been expressly affirmed, and Professor Bell's 
 doctrine rejected. The general rule is, that a cautionary obligation is literarum obligatio; 
 and where there is no rei interventus, an improbative bond of caution is not binding. 
 Tliis was held wliere the deed was a bond of cautioji for a sum lent, unauthcnticated in 
 the English form, and where the cautioner admitted his subscrijition. But such a deed 
 may be validated rei interventu; and payment of the money on the faith of the bond 
 was held suflBcient rei interventus to validate the bond, though the cautioner did not 
 know of the payment; Church of England Life and Fire Assurance Co., 1857, 19 I)., 
 414, 1079. See infra, ? 601, note *.
 
 §G()1. PKOOF OF CAUTION. 301 
 
 a case the obligation can only be proved by tliu cautioner's oath on 
 reCerence or written ailmission (/y). In applying this rule to gua- 
 rantees for tlie price of future I'urnisliings of g(jods, a distinction 
 has been drawn between a general guarantee undertaken some time 
 before the goods are furnished, and a special guarantee interponed 
 before, but with immediate reference to a transaction, which is 
 agreed to and completed upon the faith of it. While guarantees 
 of the former class cannot be proved by parole (z), the others seem 
 to come under the rule whereby witnesses are admitted to prove a 
 cautionary obligation, which is truly incident and accessory to a 
 mercantile contract proveable by parole ; for it would be a narrow 
 view of that principle to limit it to cases where the guarantee inter- 
 posed in ipso actu with the main contract (a). Accordingly, where 
 Gibb having refused to sell lambs to Walker without a guarantee 
 for the price. Walker referred him to Simpson, who on Gibb's appli- 
 cation said, "If Walker buys your lambs, give them to him, and I 
 will see you paid ; " and where the lambs having been delivered to 
 Walker accordingly, Gibb sued Simpson for the price, the Court 
 allowed the obligation to be proved by parole (h). Here, therefore, 
 the guarantee, although not interposed at the moment of completing 
 the sale, or in the presence of the purchaser, was part of the res 
 gestae of the transaction, as much as if the whole matter had been 
 arranged at one time ; and parole was properly admitted to prove 
 the entire transaction.* 
 
 § 602. The principles above noticed apply to obligations of 
 
 (y) Weir v. Russell, 1703, M., 12,381— Tassio v. M'Lintoch, 17B4, 5 B. Sup., 899— 
 Campbell v. Monro, 1615, Hume D., 108, ad finem — M'Ewau v. Crawford, 13th Febniary 
 1816, F. C— Chaplin v. Allan, 1842, 4 1)., 616. (z) M'Ewan v. Crawford, sujrra. 
 
 See § 599. (a) This was the view of the majority of the Court in Campbell v. 
 
 M'Lachlan, 1752, M., 12,286, where, however, the point did not require to be decided. 
 
 (6) Gibb V. Walker, 1761, Elch. Notes, " Cautioner," No. 19. 
 
 * The law now is. that all cautionary obligations must be in writing. Much of the 
 law as to the constitution of cautionary obligations, stated in the text has been super- 
 seded by the Mercantile Law Amcndmeut Act, 19 and 20 Vict., c. 60. The 6th section 
 of the act pro\ides, " From and after the passing of this Act all guarantees, securities, 
 or cautionary obligations made or granted by any person for any other person, and all 
 representations and assurances as to the character, conduct, credit, ability, trade, or 
 dealings of any person, made or granted to the efi'ect or for the purpose of enabling 
 such person to obtain creilit. money, goods, or postponement of payment of debt, or of 
 any other obligation demaudable from him, shall be in writing, and shall be subscribed 
 by the person undertaking sucli guarantee, security, or cautiduary obligation, or making 
 such representations and assurances, or by some person duly authorised by him or 
 them, otherwise the same shall liave no effect." The act does not alter the previous 
 law as to the kind of writing necessary, (xecpt by pmvidinLi: that it must be svibscribed
 
 392 PKOOF OF OBLIGATIONS § 602- 
 
 relief; which in general caiiuot be proved by parole (c). When 
 they are undertaken in writing, the statutory formalities must be 
 observed ; but objections on this head will 1)0 obviated by rei iyiter- 
 ventus (d) ; and parole will be admitted to prove the obligation, 
 when it forms part of a transaction which may be established by 
 that means (e). 
 
 CHAPTER XIII. — OF THE PROOF OF OBLIGATIONS WHICH THE 
 PARTIES HAVE AGREED TO COMMIT TO WRITING. 
 
 § 603. Where law does not require writing de solennitate, it 
 will yet be essential, if the parties stipulate for it ; and either of 
 them may resile, as from an unfinished bargain, so long as writing- 
 has not intervened (/). This rule, of course, only holds where the 
 stipulation for written proof was a suspensive condition of the con- 
 tract (g) ; for if the parties bound themselves by the verbal bargain, 
 and merely agreed to reduce its conditions into writing for security, 
 they came under an obligation to execute a deed in the terms ar- 
 ranged (h). But this state of facts mil require to be proved, the 
 presumption being that a stipulation for wa-iting is a suspensive 
 condition. The same principle applies in legacies. If a person 
 expressly leaves a nuncupative legacy, it is valid and proveable by 
 
 (c) Ersk., 4, 2, 20— Donaldson v. Harrower, 1668, M., 12,385— Reid v. Proudfoot, 
 1758, M., 12,344— Clark v. Callander, 9th March 1819, F. C. ; affirmed on appeal, 19th 
 June 1819. {d) Wallace v. Wallace, 1782, M., 17,056. (e) Siqira, 
 
 gg 595, 599, 601. (/) Ersk., 3, 2, 4—1 Bell's Com., 327— Bell's Pr., § 25— Tait, 
 
 224, 318— Thomson v. M. Breadalbane, 1854, 16 D., 943— Wallace & Co. v. Millar, 
 1766, M., 8475 ; Hailes, 27 S. C— Brown v. L. Rollo, 1832, 10 S., 667. In Ogilvy v. 
 Stewart, 1700, 4 B. Sup., 473, this rule was applied, although earnest had thrice been 
 given on the verbal contract. In Campbell v. Douglas, 1676, M., 8470, it was held to 
 be an intrinsic quality in an oath on reference, that the parties had agreed to commit 
 tlie contract to writing. {g) Bell's Com., stipra — BeU's Pr., sujrra. 
 
 (Ji) Bell's Com., supra — Bull's Pr., supra. 
 
 by the cautioner or by some person authorised by him ; and it would appear that in 
 general it must be a probative writing. The 7th section of the act provides that no 
 cautionary obligation granted to or for a firm shall be binding after a change of the 
 firm, unless the contrary be expressed or necessarily implied. The 8th section deprives 
 cautioners of the benefit of discussion ; and the 9th provides that the discharge of one of 
 several co-cautioners shall operate the discharge of all. It lias been held that the 9th 
 section has no application to cautionary obligations constituted before the date of the 
 act ; Church of England Life and Fire Assurance Co. v. Hodges, 1857, 19 D., 1079.
 
 § GOG. COMMITTED TO WRITING. 393 
 
 parole, alllioiigli lie slmuM afterwards direct it to be committed to 
 writing, and sliouM ilii; lidorc tliat has l)een done (/); whereas a 
 more direction to a man ol' husiness to prepare a writ containing a 
 legacy is inchoate (/.•). 
 
 § G()4. On tlie same })rin(iple, where the parties to holograph 
 or prohative missives stipnlate tliat a deed shall he entered into 
 containing the conditions of the contract at length, they bind them- 
 selves to execute such a deed (J). But if the preliminary docu- 
 ments show that they intended there should not be a concluded 
 contract until the deed should have been executed, there is locus 
 penitenHae until that has been done (m). 
 
 § 605. The stipulation for written proof may be waived by con- 
 sent of parties; and the waiver may be proved by oath on reference, 
 by facts and circumstances (n), and perhaps by parole evidence 
 generally. 
 
 CHAPTER XIV. — PROOF OF PERFORMANCE OF OBLIGATIONS 
 CONSTITUTED BY WRITING. 
 
 § 606. Where a debt or obligation is constituted by writing, 
 the general rule is that writ or oath is required to prove payment 
 or performance of it in whole or part {a)} And this holds although 
 
 {i) Mitchell v. Pinkerton, 1744, Elch., "Legacy," 13. {k) See Monro v. 
 
 Coutts, 1813, 1 Dow, 437— Stainton v. Stainton's Tr., 1828, 6 S.. 363— Walker v. Steele, 
 1825, 4 S.— Ivory's Ersk., 3, 9, 7, note «. {I) Bloomfield v. Young, 1753, M., 
 
 9446— Rutherford v. Bowden Feuars, 1748, M., 8443— Muirhead v. Chalmers, 1759, M. 
 8444. (m) Alexander v. Montgomery, 1773, 2 Pat. Ap. Ca., 300 — Monro v. 
 
 Coutts, supra — Stainton v. Stainton's Tr., supra. (n) Hay v. M'Teir, 1806, 
 
 Hume D., 836, compared with Ogilvy v. Stewart, supra. (a) Stair, 4, 43, 4 — 
 
 Ersk., 4, 2, 21— Tait, 320. So held as to payment of a bond ; Napier v. E. Eglinton, 
 1071, M., 12,318— Vans v. Brown, 1627, 1 B. Sup., 143— Gordon v. M'Intosh, 1710, M., 
 16,974 ; and as to payment of a bill, Black v. Bell, 1831, 9 S.. 486— M'Donald v. M'Gro- 
 gor, 1803, Hume D., 499 ; as to payment of a legacy constituted by writ, Grierson r. 
 King, 1781, M., 17,054 ; of an annualrent, Dalrymple v. L. Closeburn, 1032. M., 9855, 
 12,300— Crichton v. Muitland, 1030, M., 12,300— Hay, 1626, M., 12,359— (Contra, L. 
 Semple v. L. Somerville, 1623, M., 12,357) ; payment of rent under a written lease. L. 
 Romano v. Nisbet, 1609, M., 12,355; and of feu-duty, Calpie v. Kennedy, 1631, M., 
 12,300 ; 1 B. Sup., 320. (The contrary decision, Hamilton v. Smith, 1667, M., 12,363, 
 is evidently erroneous.) 
 
 1 In Stewart r. Central Bank of Scotland, 1859, 21 D., 1194, Lord Deas expressed 
 an opinion, that a bank dcposit-receiiit was not sutliciently discharged by the bank ob- 
 taining possession of the receipt. His Lonlship tliought a written discharge was necos- 
 sarv.
 
 394 PROOF OF PERFORMANCE § 60G- 
 
 tho sum bo within £100 Scots (b). In one old case, where the debt 
 due under a "ticket" consisted of £300 Scots of money and the 
 price of a pipe of sack and a tun of beer, writ or oath was required 
 only as to payment of the latter (c). But this distinction is not 
 well founded ; because the origin of the debt is unimportant after 
 it has been constituted by writing. 
 
 The ground for this rule evidently is, that witnesses are apt to 
 mistake both the amount of money paid, and the precise object of 
 the payment ; while both in principle and practice an obligation 
 constituted by writing cannot l)e extinguished by parole. 
 
 § 607, An exception to the general rule occurs in regard to 
 written obligations ad facta praestanda ; the performance of these 
 being pro veable ^3ro?<^ dejure (d). Thus parole is admissible as to 
 contracts for executing works which are palpable, such as erecting 
 a bridge, or performing a YOjage (e), delivering grain (/), or a gold 
 chain (g), and the like (h). The reason is, that the fact is manifest 
 and easily remembered, while it must be presumed to have been in 
 fulfilment of the antecedent obligation, unless another cause for it 
 is proved. 
 
 Mr Tait limits this exception to the performance of acts in exact 
 implement of corresi3onding obligations ; so that where the obliga- 
 tion is to pay money, or to perform acts of one description, parole 
 is inadmissible to prove that it was implemented by acts of another 
 kind (/). But the cases on which that author founds hardly bear 
 out his view (k). The Court once rejected parole evidence of de- 
 
 (6) 1672, 2 B. Sup., G27— M'Donald v. M'Gregor, 1803, Hume D., 499— 
 
 M'Gill V. Forret, 1622, M., 12,357— Nisbet v. Short, 1624, M., 12,358— Hay, 1626, M., 
 12,359 — Maxwell v. Aitkenhead, note to Nisbet v. Short — L. Romano v. Nisbet, 1609, 
 M., 12,355 — Calpie v. Kennedy, supra. The Act of Sederunt 8th June 1597, admitting 
 parole below £100 Scots, only applies where the debt is not constituted by writ. 
 
 (c) Finlayson v. Lauder's Ex., 1620, M., 12,359. • {d) Stair, 4, 43, 4— Ersk., 4, 2, 
 21— Tait, 322. (e) Stair, ib.— Tait, ib. (/) Stair, ib.— Little v. Hillstones, 1620, 
 
 M., 12,356— Bisset v. Bisset, 1624, M., 12,358— Ferguson's Ex. v. Campbell, 1631, M., 
 12,361— Lady Abergeldie v. her Son, 1633, M., 12,361— Bennet v. Foulden, 1629, M., 
 12,360— E. Lauderdale v. his Tenants, 1662, M., 10,023— Agnew v. Agnew, 1687, M., 
 12,364. (ff) Hamilton v. Lady Pittenwcem, 1620, M., 12,357. (A) So held as 
 
 to delivery of salt under a bond; Young v. Simpson, 1629, M., 12,725 ; and as to return- 
 ing a process to the clerk of Court, where the agent's receipt stood unscored, and irre- 
 gularity in scoring receipts was offered to be proved ; Fraser v. Urquhart, 1831, 9 S., 
 723— See also Farquhar y. Wallace, 1629, M., 12,374. (e) Tait Ev., 323. 
 
 (k) These cases are, Tennant v. L. Traquair, 1600, M., 12,355 — Porteous v. Ii. 
 Harries, 1632, M., 12,361— M'Duff v. Stewart, 1674, M., 2565, 12,363— Sec cotitra, 
 Brown v. Akeman, 1049, 1 B. Sup., 423, where the Court allowed proof before answer 
 of delivery of grain in satisfaction of rent payable in money.
 
 § Gil. OK WRITTEN OBLIGATIONS. 81»5 
 
 livery of goods, under a bill *d' lading unretired (/). The decision, 
 however, may be (juestioned. 
 
 § 608. Payment may be proved by parole in cases of fraud ; 
 since, if the allegati(jns were true, there would judbaljly not be 
 better proof of them (m). 
 
 § ()()!). When a party entitled to receive money alleges it was 
 paid, he may prove the fact prout dejure; because the proper written 
 evidence of it would be a discharge subscribed by him, and deli- 
 vered to the other party, for the preservation of which the granter 
 is not responsible {n). This rule has repeatedly been applied in 
 proof of possession by drawing rent or interest of money (o), and 
 in proof of homologation and rei inierventus (p). But it does not 
 ajjply to averments made by the creditor of payments on account 
 of a prescribed debt, when founded on to prove resting-o^ving ; the 
 relative statutes requiring proof of that fact by the debtor's writ or 
 oath (r). 
 
 § (JIO. Where payment is averred by the debtor, not with a 
 view to extinguish the obligation, l)ut as a fact inferring rei inter- 
 ventus or the like, it is doubtful whether proof by the other party's 
 writ or oath is required. The relevancy of the fact in such a case 
 docs not depend on the precise amount of the money, whitdi is the 
 point most likely to escape the recollection of witnesses ; nor is the 
 parole proof opposed to the written obligation, as the party wlio 
 received the money denies that the obligation existed. On the 
 other hand, there is risk of the witnesses mistaking the object of 
 tlie payment ; while the party who made it ought to have taken a 
 written acknowledgment. It is thought that the proof should be 
 received (.s). 
 
 CllAFTEU XV. — rilOOF UF PAYMENT AND PERFORMANCE OF 
 OBLIGATIONS NOT CONSTITUTED BY AVRITING. 
 
 § Gil. i'ayments of money in implement of obligations not 
 
 (0 Wilson V. Kay. 1787, M., 12,353— Sec on this case Tait on Ev., 323. 
 
 (»0 Sec Slumond v. Wood, 1(302, M., 12,30'.»— Foggo v. Hill, 1840, 2 D.. 1022. iter 
 Lord Fullertou. See wfra, g C28. (n) Ersk., 3, 3, 50. (o) Chalmers v. 
 
 L. Craigievar, 1628, M., lO.OGl ; 12,308— Ross v. Elliot, 1030, JI., 12,309— Thomson v. 
 Ross, 1073, 2 B. Sup., 171. (/>) Garden v. Chalmers, 1636, M., 9024; 12,362. 
 
 See Foggo v. Hill, supra. (r) Sec supra, H 450, 512. (s) See Foggo v. 
 
 Hill, sitpra, particularly Lord Fullorton's opinion — Contra, Lawric v. Craik, 1607, M.. 
 8425; 12,305.
 
 39(5 PROOF OF PAYMENT, ctC. § 011- 
 
 eunstituteJ hy writ may l)e proved by parole, provided their several 
 amounts do not exceed £100 Scots. But writ or oath is generally 
 required in order to prove payment of any larger sum (a)} 
 
 § 612. Yet where the contraction of an obligation, proveable by 
 parole, and the paj^ment of it took place at the same time — as where 
 goods were bought and paid for on the spot — parole is admissible to 
 prove the payment, although amounting to more than £100 Scots ; 
 because T\Titing is not relied upon or expected on either side, and 
 there is no peculiar risk of the witnesses being mistaken upon the 
 matter (6). The same rule applies where the article sold is deli- 
 vered at an interval after the bargain, and the purchaser avers pay- 
 ment on delivery (c). In one case, where it was averred that the 
 price of a parcel of sheep had been paid a few days after the delivery, 
 according to the custom of the trade, the Court admitted parole of 
 the fact ((?). But this decision has been questioned (e). 
 
 § 613. In connection with this subject two cases may be men- 
 tioned in which the Court relaxed the strict rule as to proof of pay- 
 ment, where the money had been transmitted l^y post. In the first 
 of these cases the defender objected to an article of £100, entered 
 in the pursuer's account as money sent him by the pursuer by post 
 in bank notes ; but which he alleged he had not received, although 
 he admitted that he had by letter commissioned the pursuer to trans- 
 mit the money in that way. The Court having allowed a proof be- 
 fore answer, no direct evidence that the money had been despatched 
 was adduced, in consequence of it being the pursuer's practice to 
 
 (a) Act of Sederunt, 8th June 1579— Ersk., 4, 2, 21— Tait Ev., 336^Tod v. Flock- 
 hart, 1799, Hume D., 498— Hume v. Hyslop, 1687, M., 12,365. In E. Lauderdale v. 
 his Tenants, 1662, M., 10,023, 12,362, this rule was ajjplied to payment of rent under a 
 verbal lease. (h) Bell's Pr., § 565 — Tait, siqjra. (c) Stowart v. Gordon, 
 
 1831, 9 S., 466— Tait Ev., 337. {d) Macdonald v. Callender, 1786, M., 12,366. 
 
 (e) See Hume D., 499 — Tait, siqjra. 
 
 1 A party who has received money on behalf of another must show by proper 
 vouchers that he has discharged himself. He cannot do so by parole evidence ; Mac- 
 kenzie V. Brodie, 1859, 21 D., 1048. 
 
 A servant brought an action against his master for £32, as the balance of wages 
 at 9s. per week due him, and the defender stated that only £26 was due. It was held 
 that he was entitled to prove prout dejure that he had paid all the pursuer's wages ex- 
 cept £26, because the balance disputed was a sum less than £100 Scots. Lord Deas 
 observed, that he was not prepared to say that, in an action for weekly wages at 
 9s., or the like, the pursuer was limited in his proof to writ or oath of party if the sum 
 lie claimed exceeded £8, 6s. 8d.; nor, on the other hand, that a defender to such an 
 action was so limited in his mode of proof, if ho alleged tliat mmo tlian £8. 6s. 8d. was 
 paid; Brown v. Mason, 1856, 19 1)., 137.
 
 § C>\4. PROOF OF I'AYMENT, &€. 3'.)7 
 
 enclose and seal up liis icinittanccs with his <t\vii haml ; l)ut the 
 £100 li.id Ih'ch entt'ivd in his cash-hook on the evening of the day 
 when it liad l»een sent, and a copy of the letter remitting it had 
 been engrossed in Ids h'tter-hook. On advising the proof the Court 
 considered that the additional evidence of the pursuer's books, and 
 his oatli in supplement, would suffice to establish the payment (/). 
 The other ease referred to was an action for payment of £100, 
 which a dchtor of tlic pursuer had, at his desire, sent to tlie defen- 
 der in order to be remitted to the pursuer. The defender alleged 
 that he had remitted the amount to tbe pursuer by post in bank 
 notes, in compliance with his request, contained in a letter acknow- 
 ledged to be genuine. The circumstances founded on by the defen- 
 der, and admitted by the pursuer, bore a close similarity to those in 
 Gumming v. Marshall ; and the defender tendered his oath in sup- 
 plement to complete the proof. The Court was satisfied with this 
 evidence. They were chiefly moved by the circumstance that the 
 defender had acted from motives of friendship under a transaction 
 from which he was not to derive any benefit, and which was based 
 upon exuberant confidence ; and they therefore considered that the 
 strict rules of law should not be applied to the case. Their Lord- 
 ships also thought it was "as mucli a matter of doubt that tlie 
 letter had not reached the pursuer, as that it had been put into the 
 post office by the defender;" and they did not think the defender's 
 oath in supplement was necessary, although, as he had offered.it, 
 they allowed it to be taken ((/). These cases are thought to be of 
 little value as precedents. 
 
 CHAPTER XVI. — OF INFERRING PAYMENT FROM CIRCUMSTANCES. 
 
 § 614. Altliough, as seen in the preceding chapters, payment 
 cannot in general be proved by testimony, yet it may be inferred 
 from circumstances which produce a reasonable belief in the fact. 
 This exceptional i)rinciple, even more than the general iiile, is con- 
 sistent with the experience of mankind ; for, if we can seldom rely 
 on the accuracy and recollection of witnesses as to the amount and 
 object of an individual payment, we often find facts, unquestionably 
 
 (/) Ciimming v. Marshall. 1752, M., 12,366. {g) Bucliauan v. Buchanan, 
 
 Till February 1812, F. C, and session papers.
 
 398 PAYMENT INFERRED FROM CIRCUMSTANCES. § 614- 
 
 relating to the debt, wliicli produce in every reasonable iniiid belief 
 that it Las been paid. Some of these circumstances, from their 
 frequent occurrence, have given rise to x»resumptions of law, as seen 
 in the rules cliirograplium apud dehitorem I'epertum 'presumiiur solu- 
 tum (a), cMrographum non extans presumitur solutum (&), the pre- 
 smnption arising from the apocha trium annorum (c), and the pre- 
 sumption that honoraries have been paid {d). In like manner the 
 source of the triennial, quinquennial, and sexennial prescriptions is 
 the inference arising from wora. But, besides these established 
 rules, the concerns of daily life develop special circumstances not 
 less con\-incing, and therefore not less entitled to receive effect in 
 proving payment (e). 
 
 Such circumstantial proof has therefore been sustained, in re- 
 gard not only to illiquid claims, but also to debts constituted by 
 bill (/), bond (gr), and even by bond with heritable security (A). 
 
 § G15. The nature and strength of the circumstances which 
 should be held sufficient to prove payment, must necessarily vary 
 with the character of the debt, the mode in which it has been con- 
 tracted, the position of the parties, and other similar considerations. 
 No general rule on the point, therefore, can be laid doM'n more pre- 
 cise than this, that the circumstantial proof should only be sus- 
 tained where it leaves no reasonable doubt that the debt in issue 
 has been paid (i). 
 
 § 616. Delay to claim payment during a number of years short 
 of the prescriptive period corresponding to the debt, is, in general, 
 not sufficient without some corroborating circumstances ; as the 
 several terms required for this purpose have been defined by the 
 statutes regarding prescriptions (k). This has been repeatedly held 
 as to taciturnity for twenty or thirty years, and even where an ad- 
 ditional day of mora would have given the debtor the absolute pro- 
 tection of the long negative prescription (Z). Yet where the debt 
 
 (a) Supra, g 380, et seq. {b) Supra, ? 382, et seq. (c) Supra, 
 
 1 384, et seq. {d) Supra, ? 392, et seq. {e) Stair, 4, 45, 23— Bankt., 
 4, 34, 2— Ersk., 3, 7, 29— Tait, 444— Br. Synop., 1694— S. Dig., voce Payment, ? 56 — 
 Supra, § 161, et seq. (/) Ryrie v. Ryrie, 1840, 2 D., 1210— Russell v. Eraser, 
 1788, M., 11,390. (g) Norkat v. Home, 1624, M., 12,701— L. Polwart v. Haly- 
 burton, 1667, M., 12,704— Stark v. Napier, 1672, M., 12,707— Macer v. L. Aldie, 1681, 
 M., 12,708— Cochrane v. Houston, 1713, M., 12,715. But see Houston v. Houston, 1697, 
 M., 12,712. (/j) Stair, 4, 45, 23— Thomson's Tr. v. Monteith, 1834, 12 S., 842 
 — Mackie v. Watson, 1837, 16 S., 73— S. C, 14 S., 156. («) Cases in foUowing 
 notes. {k) Houston v. Houston, 1697, M., 12,712— Dobie v. Stevenson, 1823, 
 
 2 S., 358— L. Gordon v. Glendonwyn, 1838, 16 S., 645— Scath v. Taylors, 1840, 10 D., 
 877_Watson v. Johnstone, 1848, 6 Boll's Ap. Ca., 245. See § 018. {I) Graham v.
 
 § 617. PAYMENT INFERRED FROM CIRCUMSTANCES. 399 
 
 is of;! kind ii.-^uallv paid iiniiicdiattdy or after a short interval, lung 
 taciturnity lias been held sufficient to infer payment. Thus, before 
 the sexennial prescription of bills was introduced, the Court fre- 
 (luently inferred payment from the lajjse of twenty years and up- 
 wards without demand lor the debt (m). So, where a written obli- 
 gation was entered into, in 1G82, to deliver a certain amount of 
 grain of that year's crop under a high penalty in case of non-imple- 
 ment ; and, in 1722, the debtor granted an obligation waiving the 
 plea of the long negative prescription, but reserving his defence of 
 payment; the Conrt, in an action raised in the year 1759, for the 
 penalty, held that the.obligation must be presumed to have been 
 implemented {n). Thus, also, in an action by the heir of a husband 
 for payment of 2000 merks of tocher, it was found that the subsist- 
 ence of the marriage for eleven years inferred that the claim had 
 been paid, or that the husband had got as much of his wife's goods 
 as satisfied it (o). And in an action by an innkeeper for payment 
 of an account which extended over eighteen months, and included 
 entries for " lodgings," " supper," " toddy," " horse's keep," and the 
 like, the Court held that the pursuer must prove both the constitu- 
 tion and the subsistence of the debt ; because uniform practice 
 raises a presumption that a tavern bill was paid when contracted (p). 
 § 617. In every question of presimied payment, indeed, taci- 
 turnity is an important element, and, when corroborated by other 
 circumstances, has frequently been sustained as proving payment (r). 
 For example, the circumstance that the creditor in one debt had 
 paid the debtor sums on account of other transactions between 
 them, without deducting or reserving his own claim, combined with 
 mora, has been held sufficient (.s) ; and payment has been inferred 
 from the creditor having discharged the debtor of payment of sub- 
 
 Vcitch, 1823, 2 S., 594. In this case there were some circumstances corroborative of 
 the inference from mora, but the Court did not think them sufficient. See, also, Currie 
 V. Ford, 1828, 6 S., 1119, where payment of a legacy was not inferred from the lapse of 
 forty-nine years since the testator's death, proceedings having been instituted for pay- 
 ment a few years after the death, and ha\-ing been renewed at intervals afterwards. 
 
 (m) Cases in Br. Synop., 244, ct seq. (n) Dunbar ii. Innes, 1759, M., 11,644. 
 
 (o) Scotland v. Reid, 1G82, M., 11,416. (jo) Barnet v. Colville, 1840, 2 D., 
 
 337. (r) Besides the cases in the following notes, see Ij. Polwart v. L. Ilaly- 
 
 burtou, 1607, M., 12,704— Mercer t-. L. AMie. 1681, M., 12,708— Cochrane v. Houston, 
 1713, M., 12,715— Bargeny v. Kennedy, 1697, 4 B. Sup., 454— French v. Cathcart, 1696 
 4 B. Sup., 293— Mackio v. Watson, 1835, 14 S., 156; S. C, 1837, 16 S., 73— Howden 
 V. Howden, 1841, 3 D.. 388. («) Vcitch v. Paterson, 1664, M., 11,383— Stam- 
 
 field r. Hamilton, 1671. 1 B. Sup., 631. See also Stuart v. Maconochie, 1836, 14 S., 
 412.
 
 400 PAYMENT INFERRED FROM CIRCUMSTANCES. § 617- 
 
 sequent debts, without noticing the one sued for (/). The inference 
 from such courses of deahng is sometimes sufficient to prove pay- 
 ment, although a lengthened period did not intervene (?(). Again, 
 where, after fortj^-six years' mora, action was raised by the heir of 
 the creditor in a l)ond (his minority having saved the dcl)t from 
 prescription), and it appeared that a new bond had been granted 
 many years before for nearly the same amount b}^ the same parties, 
 with the addition of a new cautioner, which bond had been paid, 
 the Court held that payment of the debt sued for was to be pre- 
 sumed (x). In another case, payment of a bond by one brother to 
 another was inferred, where for nearly twenty years no claim had 
 been made for either principal or interest, although the debtor had 
 been habit and repute solvent till his death (which happened several 
 years before the action was raised), and where the creditor had, 
 during his late brother's lifetime, made up or acquiesced in a state 
 of accounts between them in which a considerable balance was 
 brought out against himself (y). Again, where a father in a com- 
 petition of creditors on the estate of his son, claimed on account of 
 their joint acceptance, which had lain over for four years without 
 any demand having been made against the son, the Court presumed 
 that it had been paid at maturity with funds belonging to the pro- 
 per debtor {z). But there was ground to suspect collusion in this 
 case.^ 
 
 § 618. On the other hand, payment of a bond for £500 was not 
 inferred in an action raised in the forteith year after the term of 
 payment, where there appeared to have been an intention to pay it 
 off a year or two after its date ; where interest on it had been paid 
 for five years from its date by one who had been agent for both 
 debtor and creditor, but no payment had been made after that time, 
 and where on the original debtor's death, thirteen years after the 
 date of the bond, no claim had been made thereupon, although his 
 creditors had been called by advertisement to come forward (a). 
 
 (t) Norkat v. Hume, 1624, M., 12,701. («0 See Thomson's Tr. v. Mon- 
 
 teith, 1834, 12 S., 842 — Stuart v. Maconochie, 1836, 14 S.,412 — Cases in two preceding 
 notes. {x) Stark v. Napier, 1672, M., 12,707. See also Tod v. Beattie, 1802, 
 
 Hume D., 487. (y) Ryrie v. Ryrie, 1840, 2 D., 1210. (2) Baillie v. 
 
 "Wilson, 1840, 2 D., 495. (a) Graham i\ Veitch, 1823, 2 S., 594. The report 
 
 bears tliat tlie Court were agreed that presumptive evidence of payment of a written ob- 
 ligation, in order to be conclusive, must be " utterly irreconcileablo with the idea that 
 the bond is still due." But the cases in the preceding notes shew that this is too strong- 
 ly stated. 
 
 1 Bannatyne v. Wilson, 1855, 18 D., 230.
 
 § 020. PAYMENT INFERRED FROM CIRCUMSTANCES. 401 
 
 And where a tenant oi' a larm under a lease for nineteen years was 
 entitled to deduction of rent (ju account of tlio laudlnrd resuming 
 possession of some land at an early pcritjd of the lease, and also to 
 reconipense for ameliorations made hy him (the tenant); and where 
 he continued during his lease to pay the wdiole rent without deduc- 
 tion, and on lea\^ng• the farm granted a bill for the balance of his 
 rent on that footing ; in an action at his instance three years after- 
 wards, wlien his claim, w'ith interest, amounted to nearly £900, tlie 
 Court held that there was not sufficient ground to infer that the 
 debt liad been discharged during the lease (b). Again, where a 
 party indebted in £G00 for the warrandice under a disposition and 
 decree-arbitral, granted bill for the amount, in an action against 
 his heir, several years after sexennial prescription had run on the 
 bill, the Court would not presume that the debt had l)een paid, al- 
 though that prescri[)tion is mainly founded on a presumption of 
 payment (c). 
 
 § G19. Nor does it raise a presumption of payment that the 
 debtor granted a later obligation for the same (cZ), or a larger 
 amount (e) ; or that in a subsequent transaction the position of the 
 parties as debtor and creditor was reversed (/). But these may be 
 important when in combination with other circumstances inferring 
 payment ; and, as already noticed, the fact of the later transactions 
 having been settled without reservation may suffice to prove that 
 the others are not outstanding (g). 
 
 Some other illustrations of circumstances which are insufficient 
 to infer payment are given above (Ji) . 
 
 § 620. It will also be presumed that a person liable to account 
 has done so, where, from the position of the parties, their previous 
 dealings, the custom of the trade or business, or other circum- 
 stances, that is the natural inference (i). Thus where two brothers, 
 Wilham and George, had been co-executors of their father, and had 
 lived together for a number of years after their father's death ; and 
 
 (b) Halyburtou (-. Blair, 1837, 15 S., 750. With this case compare Veitch t-. Pater- 
 son, 1664, M., 11,383. (c) Sinclair I'. Siuclair, 1823, 2 S., COO. See also 
 CampbeU v. Campbell, 1797, M., 1G48— Hunter v. Thomson, 1843, 5 D., 1285. 
 
 (d) Lady Ardblair v. her Husband, 1G78, M., 11,384, 5030. (e) Haig u. 
 
 Service, 1832, 11 S., 145. (/) Carnoway v. Stewart, 1611, M., 2600 ; 11,382 
 
 —Murray v. Thomson, 1665, M., 11,214; 11,383— Somervillc v. Muirhcad's Ex., 1675, 
 M., 11,384— W^xddell's Tr. v. Scott, 1833, 11 S.. 655. . (g) Sujira, § 617. 
 
 (A) Supra, § 616. Sec also Lovat v. Lovat, 1721, Rob. Ap. Ca., 355. (*) See 
 
 supra, § 6. 
 
 VOL. I. 2 C
 
 402 PAYMENT INFERRED FROM CIRCUMSTANCES. § 620- 
 
 where au action was raised by the curator bonis of George against 
 the representatives of William, about twenty years after George 
 had become insane, for pajTnent of sums uplifted by William on 
 account of the father's exccutry ; the Court presumed that William 
 had accounted to George for his share, or that some settlement had 
 taken place between them (&). So where a son infamilia had been 
 in use during his father's lifetime, but without a written commis- 
 sion, to collect debts belonging to his father, and make payments 
 without preserving vouchers ; in an action by the father's heir to 
 compel him to account for his intromissions, the Court would not 
 hold him liable for any sums beyond those which might be proved 
 by his TATit or oath (c). Thus, also, where, on a person becoming 
 superannuated, his eldest son had intromitted with his estate, in an 
 action raised by the other children against the intromitter, after an 
 interval of thirteen years, the Court would not require him to ac- 
 count, because the " reasonable presumption" was, that he had pro- 
 perly applied the funds (d). Again, wdiere a domestic servant had, 
 during three years, intromitted with grain and rents received from 
 his master's tenants ; an action of accounting having been raised 
 against his executor after a number of years (the servant having 
 died in another person's employment), the Court would not require 
 the defender to account for his ancestor's intromissions (e). And 
 where the servant of a tavern keeper, having left his service, was 
 called to account for his intromissions during a year, the Court 
 Avould not hold him Ijound to do so ; because, according to the cus- 
 tom of the business, such servants account every day, or at intervals 
 of a few days (/). Thus, also, the colonel of a regiment of militia 
 being sued by one of his captains for levy money, which he had re- 
 ceived for distribution about thirty years before, was assoilzied un- 
 less non-payment were proved by his writ or oath ; because the cus- 
 tom was to pay the officers their several shares without taking re- 
 ceipts {(j). 
 
 § 621. The ground of these decisions is, that the intromitter 
 must be presumed to have accounted at the proper time. E con- 
 verso, where a factor had received money to be lent out on security, 
 
 {h) Condie v. Peddie, 1848, 10 D., 941— See also Stuart v. Maconochie, 1836, 14 S., 
 412. (c) L. Saultoun v. Fraser, 1722, M., 11,425. 
 
 {(1) Wilsons V. "Wilson, 1783, M., 11,646. The parties wore in humble life. 
 
 (e) Irvine v. Falconer, 1671, M., 11,424 — Morison v. Bruce, there cited. 
 
 (/) Couts V. Couts, 1636, M., 11,423— Abercromhy v. Acliison, 1676, M., 12,708. 
 
 (g) iJundas v. HolLorn, 1678, 2 B. Sup., 223; S. C, 3 ih.. 217— Clcilland v. Bonar. 
 1669, 2 ib., 455.
 
 § i'l'SA. TAYMKNT INFEHHKD FI{OM CIRCTJMSTANX'ES. MC, 
 
 l)ut had retained it iu Ids iiaiid.s lor a iiumljcr td' years, and charged 
 hiiiiscdf with interest upon it, the Court, in an action raised thirty 
 years after tlie last of these entries, held that the factor must show 
 how the de1»t had heen discharged (h). 
 
 § G22. A striking instance of presumed payment occurs in 
 regard to duties and casualties which were payable l)y a vassal to 
 his superior before receiving a charter or precei)t renewing the 
 investiture. The circumstance of the superior granting the renewal 
 without reserving his right to these claims, does not raise a pre- 
 sumption of payment, which may be overcome l>y the vassal's writ 
 or oath, as was at one time supposed (?*), — but imjdies an absolute 
 discharge of the superior's claim, whether the question arises vdih 
 the vassal's heir or with his singular successor (k). But tliis rule 
 does not apply to the Crown, which ought not to suil'er for the 
 negligence of its officers (l) ; and it seems not to affect a subject- 
 superior granting a renewal in obedience to a charge by the vas- 
 sal (in). In other cases the implied discharge may be excluded by 
 a reservation iu the charter; but not by the clause of ordinary style, 
 " salvo ju7'e cujuslibet " (n). 
 
 In like manner, a disposition of a superiority by the superior to 
 the vassal imports a discharge or assignation of any feu-duties or 
 casualties which were outstanding at its date, partly on the ground 
 of presumed ])ay merit, and i)artly because accessorium sequitur 
 principale (o). 
 
 § 623. It \\\\\ be seen from the cases noted in the preceding 
 sections that the law as to presumed payment was matured by the 
 Court before the introduction of trials by jury in civil causes. Yet 
 as the question is one of fact, it may be remitted to the latter tri- 
 bunal {}) ) ; the previous cases being used as guides to the judge in 
 directing the jury upon the strength of circumstantial proof which 
 they should require, and not as precedents in point of law. In the 
 trial of sucli an issue direct parole proof of payment is admissible ; 
 but the jury will be cautioned to decide upon the real e\'idence, 
 
 (A) Cairns v. Gairoch's Crs., 1747, M., 11,389. (i) See Arbuthnot v. Rait, 
 
 1680, M., 11,385— Aytou i-. Duncan, 1G76, M.. 6464— Duff Feud. Con., 225. 
 
 (A) L. Wf.Ucrburn v. Nisbet, 1612, M., 6413; 6322— E. Cassilis v. Bargeny, 1682, 
 M., 6414— Maxwell r. Falconer, 1686, M., 6514— Gibson v. Scott, 1730, M., 6500— 
 Glasgow Tailors v. Blaikic, 1851, 13 D., 1073— Ersk., 2, 3, 23 ; ib., 2, 5, 46— Duff, 
 supra. See also Erskiue v. Hamilton, 1713, M., 6515. {Ji) See L. Haltoun v. 
 
 E. Northesk, 1672, M., 6506— L. Coldingknows v. Crosbie, 1611, M., 6506. 
 
 (wi) Ersk., 2, 5, 46— Glasgow Hospital v. Campbell, 1664, M., 6419. 
 
 («) Glasgow Tailors v. Blaikie, supra. (o) E. Argyle v. M'Donald. 1676. 
 
 M., 6323. {p) Seath v. Taylor. 1848. 10 D., 377. 
 
 2 C2
 
 404 PROOF OF RENUNCIATION § 623- 
 
 rather than ou the recollection of the witnesses ; as such matters 
 are not likely to be accurately observed or remembered l)y any but 
 the parties concerned, whose evidence (except when it is to their 
 own prejudice) is not trustworthy (r). 
 
 CHAPTER XVII. — PROOF OF RENUNCIATION OF RIGHTS AND 
 OBLIGATIONS CONSTITUTED BY WRITING. 
 
 § 624. The renunciation of a right or obligation constituted by 
 wi'iting may be proved by writ or oath on reference (a). As to 
 proving it by parole, the same distinction between direct and indi- 
 rect proof occurs as in proving payment of written obligations. On 
 the one hand, the renunciation of the obligation or right cannot be 
 established by witnesses deponing merely to a verbal abandon- 
 ment (6) ; because, as already observed, a written obligation usually 
 implies a written discharge, and witnesses are apt to mistake the 
 terms of the renunciation, some important condition or counter-part 
 of which may have either escaped their observation or been forgot- 
 ten. This rule has been applied to the renunciation of a decree- 
 arbitral (c), of a written lease (d), a decree of removal (e), an obli- 
 gation in a feu-charter binding the vassal not to build ale-houses 
 on the feu (/), and the like (g)} 
 
 § 625. On the other hand, the renunciation of a right or obli- 
 gation, although constituted by writing, may often be proved by 
 circumstances almost as clearly as by the party's writ or oath on 
 reference. Such evidence of the fact, therefore, is admitted, but 
 mth considerable caution (h) ; and if the case is before a jury, there 
 
 (r) See a similar class of cases noticed supra, g 163, et seq. (a) Ersk., 3, 4, 8 
 
 — Tait, Ev., Q25— Supra, ?? 240, 241. (b) Ersk., supra— T&it, supra. See 
 
 g 162. (c) Ker v. Skedden, 1737, Elch., " Locus penitentiae," No. 3. 
 
 (d) L. Craigmiller v. Chalmers, 1639, M., 12,308. (e) Countess of Argyle v. 
 
 Sheriff of Moray, 1583, M., 12,300— Hunter v. Dun, 1809, Hume D., 584. 
 
 (f) Scott V. Cairns, 1830, 9 S., 247. (c/) Master of Hailes v. Abbot of New- 
 
 bottil, 1534, M., 12,298— L. Shaw v. Palmer, 1605, M., 12,301— Brody v. Cromarty's 
 Crs., 1688, M., 12,328— Law v. Gibsone, 1835, 13 S., 396— Cases noted in § 162, et seq. 
 
 {h) Baillie v. Fruser, 1853, 15 D., 747— Geddes v. Wallace, 1820, 2 Bligh, 270— 
 Supra, 2 163. 
 
 1 Su2>ra, § 167, note ^^.
 
 §627. OK VVIUTTEN OBLIGATIONS. 4(J5 
 
 should be a (liroction from tlic jiulji,'e, that unless the proof elearly 
 cstahlishcs the fact of ahaiidoinrieut, effect ought not to be given 
 to it (/). What strength of circumstantial proof ought to be held 
 sufficient must dei>cnd on the characters of the right and document, 
 and the mutual position of the parties ; upon which jwints some 
 illustrative cases have been mentioned in pre\dous chapters (Jc). 
 
 § f)26. When there is circumstantial proof of renunciation, 
 direct parole evidence of the fact will also be received; but little 
 reliance shduld he placed on it, exce]»t where the witness is one of 
 the parties deponing to his own prejudice. 
 
 CHAPTER XVIII. — PROOF OF RENUNCIATION OF RIGHTS AND 
 OBLIGATIONS NOT CONSTITUTED BY WRITING. 
 
 § 627. The renunciation of rights and obligations constituted 
 verbally may be proved by writ or oath of party, or by facts and 
 circumstances (a). And if the verbal constitution and abandon- 
 ment occurred on the same occasion, both of them may be proved 
 by the same evidence (6). Where, however, the renunciation oc- 
 curred ex intervallo of the constitution of the obligation, it seems 
 not to be proveable by bare testimony to the oral al)andonment, 
 unless the amount is within £100 Scots (c). Mr Erskine, indeed, 
 observes that "an obligation wdiich is constituted verbally may be 
 extinguished by a verbal declaration of the creditor that he passes 
 from it." And from the context the learned author seems to have 
 meant that the declaration might be proved by parole ; for he 
 observes immediately afterwards, ''but debts formed b}* \mting 
 cannot be extingiiished without either the creditor's oath, or a 
 written acknowledgment signed by him ((?)." As. however, such a 
 rule would admit parole of the renunciation of obligations which 
 
 (i) See Craig v. Biulgc, 1823, 3 Mur., 320— M'liitosli r. M'Tavish, 1828, G S.. 992— 
 Law V. Gibsouo, supra. {k) Supra, jJ 103, et seq. — § 616, et seq. 
 
 (a) Supra, § 624-6. (6) See supra, § 612. Accordingly, if parole is admis- 
 
 sible to prove the constitution of the obligation, the extinction, when forming part of 
 the same res gestae, may be proved in the same way ; and if the obligation is proved by 
 oath of party, the statement that it wa.s renounced at the time is an intrinsic quality to 
 tlio oath. (c) See supra. § 611— Tait. Ev , 339. (rf) Ersk., 3. 4. 8.
 
 406 PROOF OF IJEXUNCIATION OF VERBAL OBLIGATIONS. ^ 627- 
 
 could not be proved by parole {e.g., a verbal promise to pay money), 
 ]\Ir Erskine may have bad in view merely the solemnities requisite 
 for an oftectiial renunciation, and not the mode of proving it. At 
 all events there can bo little doubt that the renunciation of a verbal 
 obligation cannot, as a general rule, be proved by parole ; for if 
 payment, the usual and natural mode of extinction, requires writ 
 or oath when the sum exceeds £100 Scots, parole ought not to be 
 received to prove discharge beyond that amount, by the unusual 
 mode of a gratuitous abandonment (e). 
 
 CHAPTER XIX. — PROOF OF FRAUD AND WRONG. 
 
 § 628. One who commits a fraud or wrong will carefully avoid 
 leaving wTitten proof of it ; and no reliance could be placed on his 
 oath on reference ; which, indeed, he would generally be entitled 
 to withhold, on the ground that nemo tenetur jurare in suam turpi- 
 tudinem. It follows, therefore, that witnesses must be admitted to 
 prove fraud and wrong, otherwise it would most commonly escape 
 detection {a). This rule is in every day observance in criminal 
 Courts ; where parole evidence, both direct and circimistantial, is 
 admitted, whatever be the character or atrocity of the offence. It 
 holds not less forcibly in civil causes ; the evidence of witnesses 
 being constantly received, even in contradiction of solemn deeds 
 and judicial records, when challenged on the ground of fraud. The 
 rules on this head are fully treated in previous chapters (i), ^nd 
 afterwards, in considering how far writings of different kinds are 
 probative. 
 
 (e) Tait Ev., 339. (a) Stair, 4, 3, 2, (G)— Ei«k., 4, 2, 21—1 Hume, 376— 
 
 (ilassford Ev., 242— Tait Ev., 311. {b) See mpra, ? 174, el seq., aa to admitting 
 
 parole of fraud to contradict written evidence-- and § 344, el seq., and g 359, as to bills 
 and indor.sations challenged on the hcail of iVaud. ^
 
 S G2:». I'KOOF OF WILLS AND LEGACIES. 407 
 
 CHAPTER XX.— PROOF OF WILLS AND LEGACIES. 
 
 § G2!). Writing is essential to the n<iiiiinatioii ul" an exe- 
 cutor (c). But legacies may be left verbally ; and, if proved by 
 parole, will be sustained to the amount of £100 Scots (£8 : 6 : 8 
 sterling), altbough the actual bcfjucsts exceeded that sum (d).^ In 
 one case where an executor-nominate was also residuary legatee, 
 the Court sustained to their full amounts nuncupative legacies 
 beyond £100 Scots, when proved by his oath on reference ; because 
 lie was merely a trustee under a right ex facie absolute, and was 
 tlierefore bound to administer the estate in terms of the deceased's 
 directions (e).^ 13ut in a subsequent case where the executor, being- 
 next of kin, was sued to divide the estate between himself and two 
 others, in terms of the testator's verbal directions ; and where on a 
 reference to his oath he deponed that the deceased had stated to 
 liini that such was his will, but that he (the deponent) had not con- 
 sented to make the di\asion, although he had not expressly refused ; 
 the Court found the claimants entitled only to £100 Scots each 
 as nuncupative legacies (/). The ground of decision in this case 
 seems to have been, that as the next of kin was entitled to the 
 succession by law, a legacy informally constituted could not burden 
 his right, except through his own express undertaking to pay it (g). 
 But there is good ground for maintaining that, as the next of kin 
 succeeds through the will of the deceased, implied from the absence 
 of another nomination, he ought not to be permitted to defeat the 
 testator's expressed and proved intention that his right should be a 
 trust in so far as regarded the verbal legacies. This view is sup- 
 l)orted by the authority of Dirlcton (//), Stewart (i), and Erskine (/.:), 
 
 (c) Stair, 3, 8, 34— Ersk., 3, 9, 7— Tait Ev., 224. 
 
 (rf) Stair, supra, and 3, 8, 36 — Ersk., supra— Tait, supra — Wallace v. Muir, 1629, M., 
 1350, 6847— Smiths v. Taylor, 1749, M., 6594; Elch., " Testament," No. 10, S. C. 
 
 (e) MTlum t;. Guthrie, 1738, M., 3857 ; 5 B. Sup., 203; Elch., " Legacy," No. 5, 
 S. C. (/) Smiths v. Taylor, supra. {g) See Ivory's Note, 676, to Ersk., 
 
 3, 9, 7. {h) Dirletou's Doubts, voce " Legacy." (i) Stewart's Answ., voce 
 
 " Legacy." (A) Ersk., 3, 9, 7— See also Tait Ev., 224. 
 
 1 KeUy i>. K.lly, 1861, 23 D., 703. 
 
 2 It was held that an executor who wa-s solo trustee, and to whom as such the whole 
 estate of tlic truster wa.^ convoyed, had no right to one-third of the dead's part, under 
 the act 1617. c. 14, although the bequest of the residue had failed by decease of the 
 legatee ; because, in that rase ho held as trustee for the truster's representatives ; 
 Lowndes v. Douglas. 1862, 24 D.. 1391. Now, by the act 18 and 19 Vict., c. 23, ? 8, 
 the executor-nominate has no right to any portion of th.-. de:id's part.
 
 408 PKOOF OF WILLS AND LEGACIES. § 629- 
 
 who lay down tLat verbal legacies beyoud £100 Scots may be con- 
 stituted verbally, and may be proved by the oath of the executor 
 or next of kin. 
 
 § 630. According to Dirleton (I), and Erskine (m), a universal 
 legacy may be nuncupative, and will be efiectual, if proved by the 
 oath of the next of kin. But Stewart thinks that writing is essen- 
 tial to its constitution (w). 
 
 § 631. A nuncupative legacy, if expressly left, will be effectual, 
 although the testator directed that it should be committed to writ- 
 ing (o). But merely giving verbal directions to a person to prepare 
 a will containing certain bequests does not import nuncupative 
 legacies to these persons ; because it is not a final expression of in- 
 tention (p). And an informal testament will not be sustained as 
 a verbal bequest of legacies of £100 Scots to the persons favoured 
 by it (r). 
 
 § 632. A mortis causa donation may be made without writ, 
 however valuable the subject may be (s). It has not been settled 
 whether it may be proved by parole, or only by the executor's writ 
 or oatli.^ 
 
 § 633. It was held in an old case that a nuncupative will made 
 and confirmed in England, where such wills are valid, is not effec- 
 tual to carry moveables in this country (t). But this decision, al- 
 though adopted by Lord Stair (u), and Mr Erskine (x), is thought 
 to be erroneous ; as an executor, formally appointed according to 
 the law of the deceased's domicile, is entitled to his moveable estate 
 wherever situated (?/). 
 
 [1) Dirl. Doubts, su^jra. (m) Ersk., 3, 9, 7. [n) Stew. Answ., supra. 
 
 (o) MitcheU v. Pinkerton, 1744, Elch., " Legacy," No. 13. (p) Mitchell v. 
 
 Pinkerton, sMpra— Macfarquliar v. Calder, 1779, M., 3600, as mentioned in note * to 
 Ivory's Ersk., 3, 9, 7— Monro v. Coutts, 1813, 1 Dow, 437— Stainton v. Staiuton, 1828, 
 6 S., 363— Walker v. Steele, 1825, 4 S., 323. (r) Moncrieflf v. Monypenny, 
 
 1711, M., 13,307; affd., Rob., 26. But see contra Hopkins v. D. Athol, 1728, M., 
 15,940 ; noticed infra, § 669. (s) Mitchell v. Wright, 1759, M., 8082. 
 
 {() Shaw V. Lewis, 1665, M., 4494. (m) Stair, 3, 8, 35. (x) Ersk., 
 
 3, 2, 41. (y) 2 Bell's Com., 683— Brodie's Ed. of Stair, 10, note A— Hog v. 
 
 Hog, 1791, M., 4619, affd. on appeal— Durie v. Coutts, 1791, M., 4624— Brack v. Hogg, 
 1827, 6 S., 113 ; affd., 5 W. S., 61— Ker v. Lady Ker's Tr., 1829, 7 S., 454— Mar- 
 chioness of Hastings v. Exec, of M. Hastings, 1852, 14 D., 489. See on international 
 questions regarding deeds, Part ii, b. ii, t. 1, c. 12. 
 
 3 A party placed money in a bank and took a deposit-receipt, payable to himself and 
 his wife, and the longest liver of them ; it was held that the deposit-receipt, being 
 neither holograph of the husband nor probative, did not constitute a legacy to the wife; 
 Cuthill V. Burns, 1862, 24 D., 849.
 
 § 634. PKUOF OF JUDICIAL ACTS AND DECUEKS. 409 
 
 CHAPTER XXI. — i'KOOE OF JUDICIAL ACTS AND DECREES. 
 
 § 634. Acts and decrees of Courts of Law can be proved only 
 by tlie signed minutes of Court, or by regular extracts formally 
 authenticated (a), — and not by the depositions of the judge, clerk 
 of Court, members of inquest, or other witnesses, however respect- 
 able (6). This rule holds even where the matter arises incidentally 
 in a cause ; as did objections under the former law to witnesses on 
 the ground of infamy (c). 
 
 If the record has been lost or destroyed, it may be restored by 
 means of an action of proving the tenor ; in which parole evidence 
 will be admitted (d). 
 
 How far judicial records are probative, as well as the competency 
 of parole to contradict, add to, or explain them, is considered else- 
 where (e). 
 
 Witnesses have been admitted to prove that a sum beyond £100 
 Scots had been consigned in Court in implement of an order to that 
 effect (/). But the decisions on the point (the precise grounds of 
 which are not reported) are more than questionable. 
 
 (a) See on judicial records and extracts, Part ii, b. ii, t. 2, c. 5, and t. 3, c. 1. 
 
 lb) Poor Wife of Broughton v. M'Call, 1542, M., 12,264; 1 B. Sup., 114— Lauder v. 
 Mowat, 1628, 1 B. Sup., 58, 262— Dickson v. Ponton, 1824, 3 Mur., 440— Greig v. Ed- 
 monstone, 1826, 4 ib., 70— Smith v. Robertson, 1832, 10 S., 829— Eraser, 1839, 2 Sw., 
 436. (c) Dean's case, 1729, 2 Hume, 355— Miller v. Mofifat, 1820, 2 Mur., 223 
 
 — Thomson, 1839, Bell's Notes, 256. [d) See on the action of proving the tenor, 
 
 Part ii, b. ii, t. 3, c. 5. (e) See siipra, § 48, et seq., and the chapters on judicial 
 
 records and extracts. Part ii, b. ii, t. 2, c. 5, and t. 3, c. 1. (/) Tr. for Rae's 
 
 Crs. V. Gordon, 1794, M., 12,367— Applegirth v. Lockerby, 1671, M., 12,706. 
 
 END OF PART FIRST.
 
 PART SECOm). 
 
 Ill'LlvS AITLICABLE TO THE DIFFEUENT 
 INSTRUMENTS OF EYIDENOE. 
 
 'I'nE Instruments of Evidence — that is, the sources from which 
 Oourts of Law derive information on matters of fact^ — are very nu- 
 merous ; as are also the ruh's re<;arding their admissibility and ef- 
 fect. These rules will l)e treated under the four following heads: — 
 
 I. Written Evidence. 
 
 II. Statements and Oaths of the parties not being adduced as 
 witnesses. 
 
 III. Testimony, or the evidence of persons adduced as witnesses. 
 
 IV. Real Evidence, ok evidence derived from things.
 
 4i:i 
 
 BOOK FIRST. 
 
 OF WRITTEN EVIDENCE. 
 
 § 635. Written evidence, in a classification of the instruments 
 of evidence, comprehends those writings which are prepared for 
 the purpose of preserving "WTitten memorials of facts and transac- 
 tions. It embraces two great classes of writings, namel}', those 
 which are prepared by the parties for the purpose of defining the 
 nature and import of their transactions, — and tliosc which are pre- 
 pared by public officers, as the pre-appointed record of matters 
 which concern the community. The latter class includes those 
 writings of a quasi public character ; which, relating to private 
 transactions, but affecting the interests of persons who are not 
 parties to them, are committed by law to official care. 
 
 The rules regarding the first of these classes of writings mil 
 now be considered.
 
 414 STATUTES KEGAKDINa TIIK § 03(5- 
 
 TITLE I. 
 
 OF PRIVATE WEITINGS, 
 
 CHAPTER I. — OF THEIR AUTHENTICATION. 
 
 § 636. The most ancieut mode of aiitlienticatiDg deeds in Scot- 
 land was by the sign of the cross, which both betokened a solemn 
 adjuration to implement the written contract, and was viewed as an 
 amulet for preserving it from injury. This universal symbol was 
 succeeded by seals bearing the coats of arms or initials of the par- 
 ties, and sometimes having " monograms," or devices in which the 
 letters of their names were fancifully combined, and were usually 
 united with the name of Christ, or of some tutelary saint. The 
 presence of witnesses was not essential to the authentication ; but 
 if any were in attendance when the deed was executed, the notary 
 inserted their names, with the prefix " his testihus ;" and he was 
 especially careful in doing so if they were persons of note, whether 
 lords or ladies. The authenticity of the deed was ascertained by 
 comparing the wax impression with the party's signet ; and if the 
 grantor admitted that the impression was genuine, but averred that 
 it had not been affixed by him, he had to bear the " skaith," on ac- 
 count of his " evil keeping " of his seal (a). 
 
 § 637. A mode of authentication so rude and simple gave rise 
 to fraud. The evil, and a partial remedy for it, appear in the act 
 1540. cap. 117, by which " it is statute and ordained, that because 
 mennis scales may of adventure be tint, quhairthrow great hurt 
 may be genered to them that awe (own) the samin : And that 
 mennis seales may be feinzicd or put to writinges, after their de- 
 cease, in hurte and prejudice of our soverain lord's lieges : That 
 
 (a) 1 Ross Lee. 123, et sey.— Reg. Mag., L. 3, c. 8. § 4, 5, 7— Mack. Obs. on 7 Pari. 
 .James V (1.040). c. 117— Ersk., 3, 2, 7— Duff F.iul. Con.. 4.
 
 § (541. AUTHENTICATION OF DEEDS. 415 
 
 tlicivl'on! iia faith Ijc }j,iveii in linn; cuiiiiniii^- to (»ny oltligatidii, 
 hand, or othci' writing under luie scale, Avithont the subscription of 
 him that awe the .sanien and witnesse (h) ; or else, gif the partie 
 cannot write, with the subscription of ane notar thereto." This act 
 was observed with reg'ard to the snhsiription oi' the party, or of a 
 notary in his name; Imt it did not secin-e authentication by the 
 witnesses (c). 
 
 §638, Shortly afterwards came the act 1555, c. 29; wlnCh 
 ordained, on the pain of nullity, that all reversions, and bonds and. 
 obligations, for making, sealing, and delivery of reversions, should 
 be sealed and subscribed l)y the granter, and " gif he cannot sub- 
 scrive, to subscrive the same with his hand led at the pen l»e ane 
 notar." 
 
 § 639. This mode of notarial authentication was evidently in- 
 adequate. It was altered by the act 1579, cap. 80, which still 
 regulates the subscription of deeds by persons who cannot write. 
 By this act " it is statute and ordained that all contractes, obliga- 
 tioues, reversiones, assiguationes and discharges of reversiones, or 
 eiks thereto, and generallie all writtes emporting heritabil titil, or 
 utheris bondes and obligationes of great importance, to be Jiiaid in 
 time cumming, sail be subscrived and seilled be the princii)al par- 
 ties, gif they can subscrive, utherwise be tw^a famous notars befoir 
 four famous witnesses, denominat be their special dwelling places, 
 or sum other evident takens, that the witnesses may be knawen, 
 being present at that time, utherwise the saidis writs to mak na 
 faith." 
 
 § 640. Ere long, sealing was found to be unnecessary in deeds 
 which were formally subscribed. It was therefore dispensed with 
 by the act 1584, cap. 4, as a requisite to any deed entered in a 
 public register under a consent to registration. And after the pass- 
 ing of this statute sealing fell generally into desuetude ; a change 
 which, ere Mackenzie's time (1686), had become "warranted by 
 uncontroverted custom" (d). 
 
 § 641. A new security for the authenticity of deeds was intro- 
 duced l)y the act 1593, c. 179 ; which, on the preandde of the in- 
 crease of falsity, especially by the bodies of deeds being written by 
 " sik persones as ar not commounly knawTn, and are not commoun 
 
 (J) The word " witnesse " is used in the plural ; see Duff Feud. Con., 6 — Thomson's 
 ed. of Statutes, vol. 2., p. 377, cap. 37. (c) Ersk., 3, 2, 7—1 Ross Lcc, 128 
 
 —Duff Feud Con., 6. (d) Mack., Obs. on 7 Tarl. James V (1546). c. 117, 
 
 and on 6 Pari. James VI (1579), c. 80— Ersk., 3, 2. 7,
 
 416. STATUTES REGARDING THE §641- 
 
 notaries, nor bruikes na cominouii office, as writers within this 
 realme ; and, gif the writer were knawn the samin wahl give great 
 light to the tryall of the truth or the falsed of the said writ and 
 evident," — " decernis and declaris that all original chartoures, con- 
 tractes, obligationes, reversiones, assignationes, and all other writtes 
 evidentcs to be maid hereafter, sail make special mention in the 
 hinder end thereof, before the inserting of the witnesses therein, of 
 the name, surname, and particular remaining place, diocesie, and 
 other denomination of the writer of the body of the foresaid original 
 wi-ittes and evidentes ; utherwise the same to make na faith in 
 judgment, nor outwith in time cumming : And to begin upon the 
 first daye of November next to cum." 
 
 § 642. Notwithstanding these acts, the Court did not visit 
 with nullity the omission of the statutory requisites, but allowed 
 both the subscriptions and the designations of the witnesses, and 
 the name and designation of the writer to be supplied by a conde- 
 scendence and proof. This occasioned the passing of the act 1681, 
 c. 5, one of the most important statutes in the law of Scotland. Its 
 terms are : — 
 
 " Our soveraign Lord, considering that by the custom introduced 
 when writting was not so ordinary, witnesses insert in writs, al- 
 though not subscribing, are probative witnesses, and by their for- 
 getfulness may easily disown their being witnesses. For remeed 
 whereof, his Majestie, with advice and consent of the estates of 
 Parliament, doth enact and declare, that only subscribing witnesses 
 in writs to be subscribed by any partie hereafter, shall be probative, 
 and not the witnesses insert not subscribing : And that all such 
 writs to be subscribed hereafter, wherein the writter and witnesses 
 are not designed, shall be null, and are not supplial)le by conde- 
 scending upon the writter or the designation of the writter and wit- 
 nesses : And it is further statute and declared that no witness shall 
 subscribe as witness to any partie's subscription, unless he then 
 know that partie, and saw him subscribe, or saw, or heard him give 
 warrand to a nottar, or nottars, to subscribe for him, and in evi- 
 dence thereof, touch the nottar's pen, or that the partie did at the 
 time of the witnesses subscribing acknowledge his subscription ; 
 otherwise the saids witnesses shall be repute and punished as ac- 
 cessorie to forgeric. And seeing writting is now so ordinary, his 
 Majestie, with consent foresaid, doth enact and declare that no wit- 
 nesses but subscribing witnesses shall be probative in instruments 
 of seising, instruments of resignation ad rcmanentiam, instruments 
 of intimation of assignations, translations, or retrocessions, to bands,
 
 §644. AUTHENTICA'I'ION OF DEEDS. 417 
 
 contracts, or other writs ; wliicli sliaJI liaijpcii lu b(j .subscribud in 
 
 any time hcieartor Aii<l that in all tin; saids cases, the 
 
 witnt'ssi's be designed in the l»odie of the writ, instrument, or exe- 
 cution respective, otherwise the same shall he null and void, and 
 make no faith in judgment, nor outwith." 
 
 § 643. Originally deeds requiring more than one sheet were 
 written on rolls of paper or parchment, the different portions of 
 which were pasted together, and were generally signed on the mar- 
 gin, across the joinings. This inconvenient form was altered by 
 the act 1696, c. 15 ; which allows (without requiring) deeds to be 
 written bookwise, under certain regulations for authenticating the 
 several sheets. It is in these terms — " Our Sovereign Lord, under- 
 standing the great trouble and inconveniency the lieges are put to 
 in finding out clauses and passages in long contracts, decreets, dis- 
 positions, extracts, transimipts, and other securities, consisting of 
 many sheets battered together, which must be either folded or 
 rolled up : Doth, for remeid thereof, with advice and consent of the 
 estates of Parliament, statute and ordain that it shall be free here- 
 after fur any person who hath any contract, decreet, disposition, or 
 other security above mentioned to write, to choose whether he wall 
 have the same WTitten in sheets battered together as formerly, or to 
 have them written by w^ay of book, in leafs of paper, either in folio 
 or quarto ; providing that, if they be written bookways, every page 
 be marked by the number, first, second, &c., and signed as the mar- 
 gins were before, and that the end of the last page make mention 
 how many pages are therein contained ; in which page only wit- 
 nesses are to sign in Avrits and securities wdiere witnesses are re- 
 quired by law ; and which writs and securities being written book- 
 ways, marked and signed as said is, his l^Iajesty, with consent fore- 
 said, declares to be as valid and formal as if they were written on 
 several sheets battered together, and signed on the margin, accord- 
 ing to the present custom." 
 
 These are the statutes which regulate the authentication of pri- 
 vate deeds. The requisites which they introduce, along with the 
 rules of common law on the same subject, will now be considered 
 in detail. 
 
 I. 0/ Naming and Designing the Parties. 
 
 § 644. Every dee<l ought to describe the parties accurately by 
 VOL. I. 2d
 
 418 DESCRIBING THE PARTIES IN DEEDS. § 644- 
 
 thcir lull names and designations or additions ; because law cannot 
 give effect to a writing in which either the granter or the grantee 
 is uncertain. Mr Erskine lays down that a deed is ineffectual, if 
 the parties are not so described in it as to be distinguished from all 
 others (e). But this is too strongly stated ; because where there 
 are several persons of the same name and business or the like in 
 one place, a deed granted by or to one of them will be sustained, 
 provided it can be shown to which individual the description ap- 
 plies (/). Even errors in the name and designation of the grantee 
 of a deed have been overlooked, where enough was left to identify 
 him (g). Every such case, indeed, is one of identification, and 
 may be cleared up by proof extrinsic, as well as intrinsic, to the 
 deed (h)} 
 
 The practical rule, however, is to name and design the parties 
 fully and precisely. The granter should be set forth at the com- 
 mencement, and the grantee in the dispositive or obligatory clause. 
 But there is no strict rule on this point ; insomuch that a wife's 
 consent to her husband's will was sustained, although she was only 
 mentioned in the testing clause (^). 
 
 11. 0/ Deeds containing Blanks. 
 
 § 645. Deeds which contain blanks in essential parts are ineffec- 
 tual at common law ; because the duty of a Court is to construe 
 and give effect to a party's expressed intention, not to construct 
 for him a deed which he failed to make. What is a blank in suh- 
 stantialihus depends on the purpose and terms of each deed. 
 
 § 646. Of course the subject meant to be conveyed by a dispo- 
 sition, and the sum to be due under a bond, are essential (h). But 
 if the deed w^as completed in these particulars when it was delivered, 
 it is valid, although it was blank when subscribed (J). Again, 
 
 {e) Ersk., 3, 2, 6— See also Tait Ev., 56. (/) See s^qna, ? 213, et seq. 
 
 [g) See supra, ? 208, et seq. {h) This subject is fully treated supra, g§ 195, 
 
 203, 205, et seq. (i) Johnstone v. Coldstream, 1843, 5 D., 1297. See also Weirs 
 
 V. Ealston, 22d June 1813, F. C. {k) But there is good ground for challenging 
 
 (with Prof. More, Notes, p. 104, 407) the authority of Coult v. Angus, 1794, M., 17,040, 
 Elch., " Cautioner," No. 18, where the omission to repeat the sum in the obligatory 
 clause of a bond of corroboration was held to be fatal, although the amount was set 
 forth distinctly in the narrative, and by reference to the bond which was meant to be 
 corroborated. {I) Baillie v. Scott, 1828, 6 S., 1016. 
 
 1 See remarks by the Lord Justice-Clerk (Inglis) in Joel v. Gill. 1859, 22 D., 12.
 
 § 467. BLANKS IN DEEDS. 419 
 
 wiicre a deed is granted as a trust lor some speeial purpose, and ncjt 
 to the grantee simply, lilanks in declaring the trust puqjoses may 
 be fatal. Thus a trust-deed wliieh directed the trustees to invest 
 and accmnulatc £GUOU till it should reach the sum of £ , and 
 
 tlien to lay it out in erecting and maintaining an hospital in Mon- 
 trose, similar to Robert Gordon's hospital in Al)erdeen, for main- 
 taining, clothing, and educating boys, was held by the House 
 of Lords to be inept (m). Yet if a deed of this kind confers on the 
 trustees or any other person power to fill in the items left blank, it 
 will be effectual (n). 
 
 § G47. In one case a trust-deed by a lady under voluntary in- 
 terdiction directed her trustees to pay her during her life such an 
 annuity as they should think reasonable, wdth power to them to 
 increase or diminish it as they should see cause, but the amount 
 not to exceed £ in any one year ; wliich allowance was to 
 
 be continued to her heir, subject to increase and diminution as 
 al'oresaitl, but not to exceed £ yearly. Another purpose 
 
 of the trust was for establishing a fund for paying off the truster's 
 debts, and making provision to her younger children, whom failing 
 to their lawful issue, not exceeding the sum of £ to each 
 
 child or issue, with power to the trustees to sell the trust property; 
 and if the price of it when sold should fall short of papng the debts 
 and provisions, and leaving a reversion of double the amount of the 
 said sum of £ for the heir, then the provisions should suffer 
 
 a proportional diminution, to the effect that the heir should always 
 have a reversion or provision double of that falling to each, of the 
 younger children. The deed also directed that the free proceeds of 
 the truster s moveable estate should be divided in the same propor- 
 tions. On the heritable estate being sold, the children of the heir- 
 at-law claimed the whole residue as heritable property. The Court 
 were much divided as to whether the trust-deed was efl'ectual, and 
 ultimately held that it was, and that the trustees had power, under 
 sight of the Court, to tix the provisions of the younger children (o). 
 This decision certainly went far enough, for the sum which it found 
 the younger children entitled to may have greatly exceeded that 
 which the truster intended to insert in the blank. In a subsequent 
 
 (m) Ewen v. Ewen's Tr., 1830, 4 W. S., 346 ; reversing 6 S., 479. See also Pent- 
 land V. Hare, 1829, 7 S., 640, infra, § 663 (/). (n) Hill v. Burns, 1824, 3 S., 
 389; affirmed 2 W. S., 80— Crichton v. Gricrson, 1826, 4 S., 553; affirmed 3 W. S., 
 329 — per Lord Wynford in Ewcn v. Ewen's Tr., supra — Murray i'. Fleming, 1749, M., 
 4076 — Snodgrass i>. Buchanan. ItUli Dec. 1806, M., "Service of heirs," Appx., No. 1 — 
 Brown's Tr. v. his relations. 1762, M., 2318. (o) Stewart v. Stewart, 26th Nov. 
 1813, F. C. But tliis case was decided before Ewen r. Ewen's Tr., supra (m). 
 
 2 D 2
 
 420 BLANKS IN DEEDS. § 447- 
 
 case a letter of guarantee to tlie amount of £ was sustained, 
 
 as not being blank in substantialihus, but containing a proposed 
 limitation which had been departed from (p). 
 
 § 648. An exception to the rule that a ^\Titing must be com- 
 pleted in essentialibus occurs in regard to bills. As the sum which 
 can be filled into the blank is limited by the stamp, a person who 
 affixes his name to a "skeleton bill" is held to render himself liable 
 for any sum which may be filled in above his signature, and which 
 the stamp will carry (r). 
 
 § 649. Formerly bonds used to be executed blank in the credi- 
 tor's name, and to be completed by the last holder inserting his own 
 name before doing diligence. Such bonds passed from hand to 
 hand without assignation ; they were secure from the plea of com- 
 pensation ; and their proceeds could not be attached by diligence. 
 In this way they afforded facilities for fraudulent preferences by 
 insolvent persons (f) ; and they were used for eluding the law 
 against deathbed aHenations. Accordingly, after having been for 
 some time discountenanced by the Court, they wore prohibited by 
 the act 1696, cap. 25, "anent blank bonds and trusts." 
 
 § 650. This statute, on the preamble that "the subscribing of 
 bonds, assignations, and dispositions, and other deeds blank in the 
 name of the person in whose favours they are granted, &c., are 
 occasions of fraud, as also of many pleas and contentions," statuted 
 and ordained that "no bonds, assignations, dispositions, or other 
 deeds be subscribed blank in the person or persons' name in whose 
 favours they are conceived, and that the foresaid person or persons 
 be either insert before or at the subscribing, or at least in presence 
 of the same witnesses who are witnesses to the subscribing before 
 the delivery, certifying that all writs otherwise subscribed and 
 delivered blank as said is shall be declared null"— "Declaring that 
 this act shall not extend to the indorsation of bills of exchange or 
 the notes of any trading company." 
 
 § 651. This act applies to trust-deeds blank in the names of 
 the trustees {uy ; and to deeds of entail executed before the names 
 
 (p) Buchanan v. Dickie, 1828, 6 S., 986. (r) Grassick v. Farquharson, 1846, 
 
 8 D., 1073, and cases there cited— Lyon v. Butter, 1841, 4 D., 178— Smith v. Taylor, 
 1824, 2 S., 755. See infra, ? 651, (a), and § 796, et seq. 
 
 (t) Stair, 3, 1, 5— Ersk., 3, 2, 6— M., voce, " Blank Bonds." (m) Pentland v. 
 
 Hare, 1829, 7 S., 640. But a blank in the names of some of the trustees is not fatal ; 
 
 2 This can hardly be regarded as settled by the decision referred to. Perhaps tlio 
 beneficiaries may be regarded as the true disponees ; see infra, § 874, note.
 
 § (If)!. I'.I.ANlvS L\ DEEDS. 421 
 
 oi' tlic heirs wore filled in (x). But a blank in tlie name of a post- 
 poned heir does not annul an entail as regards heirs nominated be- 
 fore hiin (/y). At one time l)ills signed blank in the payee's name 
 were held to come under the act 1G9G, cap. 25 (2). They have for 
 a long time been sustained on account of the exigencies of trade 
 and the custom to use "skeleton bills," and because bills come 
 ■within the general law-merchant rather than the nmnicipal rules of 
 individual states (a). On similar grounds, and by the words of the 
 exceptional clause in the statute, documents binding merchants, 
 manufacturers, and "trading companies" to deliver certain goods 
 to the holder are effectual, although the name of the grantee is not 
 in.serted (h).^ 
 
 see E. Traquair v. Henderson, 1822, 1 S., 527— Robertson v. Ogilvie'a Tr., 1844, 7 D., 
 236— Richardson v. Biggar, 1845, 8 D., 315. (z) Abcrnethie v. Forbes, 1835, 
 
 13 S., 263— Kennedy v. Arbuthnot, 1722, M., 1081 ; 1 Ross Ca., 566, S. C. 
 
 (y) Abermthio r. Forbes, supra. See Richardson v. Biggar, supra. 
 
 {z) En^k., 3, 2, 28— Thomson on Bills, 52. (a) 1 Bell's Com., 390— Fair v. Cran- 
 
 ston, 1801, M., 1677— Little and Co. v. Muir, 23d February 1803, 1 Bell's Com., 390— 
 Still and Co. v. Gall, 1805, Hume D., 53— Drummond v. Campbell, 1813, Hume D., 
 71— Smith r. Taylor. 1824, 2 S., 755— Lyon v. Butter, 1841, 4 D., 178— Grassick v. 
 Farquharson, 1846, 8 D., 1073. See § 648 (r). (6) Bovil v. Dixon, 1854, 16 D., 
 
 619. See also Mackenzie v. Dunlop, 1853, 16 D., 129; and Dimmack, Thomson. & 
 Firmstone v. Dixon in pendente, July 1854. 
 
 3 Although written obligations to deliver goods to the bearer are not invalid under 
 the act 1696, c. 25, they would probably bo held ineffectual at common law. In Bovil 
 V. Dixon the pursuer was the holder of a note by which tlie defender, an ironmaster, 
 bound himself to deliver 1000 tons of pig iron to the bearer. The defender refused to 
 deliver the iron, because the original purchaser, from whom the pursuer had bought the 
 note, had not paid the price, and was bankrupt ; and the defender pleaded that he was 
 entitled to retain the goods in security of the price. He argued, in the Outer House, 
 that the document was invalid under the act 1696, c. 25; this plea was repelled by 
 Lord Ruthcrfurd. and was not renewed in the Inner House, where the validity of the 
 document seems to have been taken for granted, and where the case was decided in 
 favour of the pursuer, on the ground that the grantor could not plead retention against 
 a bona fide and onerous holder. In Mackenzie v. Dunlop, supra, in which the pursuer 
 was holder of a similar note granted by the defender, the point discussed was whether 
 the defender was bound to deliver iron of a particular description — he admitted his 
 obligation to deliver iron, but a question was raised as to the kind of iron to be deli- 
 vered. But in Dimmack, Thomson and Firmstone v. Dixon, where the document 
 founded on was of the same kind, the scope and effect of the act 1696, c. 25. were very 
 carefidly considered by the whole Court, and all the judges were of opinion that the 
 document was not invalid under that act. It was thought tiiat the act regarded mainly 
 documents requiring formal authentication ; and, besides, that a document payable to 
 the bearer was not blank in the name of the creditor, because there was no blank left 
 for the creditor's name, and because the creditor was sufficiently described and identified 
 as the besuer of the document ; the document was complete when it was issued. wheren.<;
 
 422 BLANKS IN DEEDS. § 652- 
 
 § 052. A deed will nut be held blank in the grantee's name on 
 account of the granter not specifying the individual whom he means 
 
 the writings referred to in *tlie act were writings meant to be completed afterwards by 
 filling in the name of the grantee. Lord Curriehill thought that the act did not apply ; 
 because it was one of those statutes which render the observance of solemnities neces- 
 sary in framing wi-itten instruments, from the operation of which enactments his Lord- 
 ship held that all writings granted in mercantile transactions were exempt. Others of 
 the judges, however, were of opinion that the question in the case was not as to the 
 form of execution of the document, and that, except as regarded form of execution, wi-it- 
 ings in re mercatoria were in no different position from other writings. But while the 
 Court were unanimous in holding that the act 1696 did not apply, there was consider- 
 able diiference of opinion as to the validity of the document at common law. The ma- 
 jority of the Court saw no illegality in the document. But Lords Ivory, Deas and 
 Neaves thought a document of the kind invalid ; and observed that if it were sustained, 
 such notes might be issued in every trade, and a species of currency created which the 
 law did not recognise ; Dimmack, 1856, 18 D., 428. 
 
 The case of Dimmack was compromised ; but Bovil v. Dixon went to the House of 
 Lords, where it was again decided in favour of the pursuer, but on the special ground 
 that, by the correspondence and dealings which had taken place between the pursuer 
 and the defender, the defender had come under obligation to deliver the iron to the 
 pursuer. But the principle of the judgment in the Court of Session was not affirmed 
 in the House of Lords. On the contrary, the Lord Chancellor (Cranwortb) took occasion 
 to say that he held the document to be invalid. His Lordship observed that the effect 
 of such a document, if valid, was to give a floating riglit of action to any person who 
 might become possessed of it, which could not be tolerated by the law, either of 
 Scotland or England. The only cases in which such an action could be sustained were 
 those of bills of exchange and promissory-notes, depending on the law-merchant in the 
 case of bills of exchange, and on the statute of 12 Geo. Ill, c. 72, § 36, in the case of 
 promissory-notes ; no evidence was given of mercantile usage as to such documents. 
 The rule preventing such actions was by no means of a technical nature, but a rule 
 founded on extremely good sense. In Scotland as well as in England it was a good 
 defence to show illegality of consideration, such as turpis causa; it was the policy of 
 the law to preserve such defences intact. But this principle would be entirely defeated 
 if a contracting party could make a floating contract enforceable by bearer, who might 
 be a stranger to the contract. Bills of exchange had been made an exception for the 
 convenience of trade, but that exception was not to be extended ; that it required a sta- 
 tute to make promissory-notes transferable by indorsation, showed that there was no 
 such o-eneral privilege of such documents at common law. Independently of the law- 
 merchant and of positive statute, within neither of which classes these scrip notes were 
 included, the law did not, either in Scotland or in England, enable any man, by a writ- 
 ten engagement, to give a floating right of action at the suit of any one into whose 
 hands the writing might come, and who might thus acquire a right of action better than 
 tlie right of him under whom he derived his title.— Bovil v. Dixon, 1856, .3 Macqueen, 1, 
 13. This judgment in the House of Lords was subsequent to the judgment in the Court 
 of Session in the case of Dimmack. In a later case, iron-masters granted a written 
 oliligation to deliver certain tons of iron, payment being acknowledged by the docu- 
 ment, to the order of a party named ; he blank indorsed this document, and the holder, 
 a bank, sued the granters, who pleaded a counter claim against the person to whom they 
 liad originally sold the iron. The question was whetlicr the right to demand delivery
 
 § 653. BLANKS IN DEEDS. 42 :i 
 
 to favour, provided he depute.s iiiiotlier person to name liini (c). 
 Thus a disposition to the granter's wife in liferent, and any relation 
 whom she might name in fee, was sustained in favour of the indi- 
 vidual nominated by her (d) ; and a deed of settlement conveying 
 heritage to G. B. and the heirs of his body or assignees, "whom 
 fiiiling, to such of my mother's relations as my friend M. shall ap- 
 point by a WTiting under her hand," was licld effectual in fav(jur of 
 the persons wdiom she appointed (e). 
 
 § 653. The peremptory injunction of the statute, that the names 
 of the grantees be "either insert before or at the subscribing, or at 
 least in presence of tlie same witnesses to the subscribing before 
 the delivery," strikes at a deed which is tilled u[) in compliance 
 witli the grantor's directions contained in a separate writing, but 
 without the presence of the witnesses. Thus whore the friends of 
 a Scottish proprietor residing in India transmitted to liim both a 
 trust-deed, in wliicli tlio names of the trustees and the trust pur- 
 poses were filled up, and a skeleton deed in the same form, but 
 blank in these particulars ; and where the blank copy was signed 
 by the grantor and returned with letters stating his approbation of 
 its terms, but the other cojiy did not come to light ; and where the 
 conveyancer who had prepared the deeds filled into the skeleton 
 copy the names and trust purposes w^hicli had been inserted in the 
 duplicate, the Court lield that the deed was ineffectual both by the 
 act 1696 and at common law (/). Thus also where a deed of set- 
 
 (c) See supra, § 1)46. (</) Murray v. Fleming. 1749, M., 4075. 
 
 (e) Snodgrass d. Buchanan, 1806, M., " Service of Heirs," App., No. 1. 
 (/) Pentland v. Hare, 1829, 7 S., 640. The party founding on tlie deed was allowed 
 an opportunity to prove the tenor of the missing duplicate ; but he failed to do so. 
 
 of the iron was carried by the blank indorsation. The pursuer pleaded usage of trade ; 
 and Lord Handy.sidc (Ortlinary) found tliat an assignation was not necessary for its trans- 
 ference, but that, as a document in re mercatoria, it was transferable according to the 
 usage and practice of trade. This interlocutor, which was pronounced before the judg- 
 ment in the House of Lords in Bovil v. Dixon, was recalled in hoc statu. When the 
 ca.se was taken to the Inner House at a subsequent stage, it appeared to the Court that 
 the document in question had not originated in a sale, but had been got up as the 
 basis of a security, and thus could not be regarded as a writ in re mercatoria, and on 
 that ground the Court held that it had not been duly transferred to the pur.^uers ; 
 the transmissibility of such a document by indorsation was therefore not decided ; the 
 remarks of the Lord Chancellor in Bovil v. Dixon, however, seem as applicable to sucli 
 a document as to a written obligation to deliver goods to the bi-arer ; Commercial Bank 
 of Scotland v. Kinuaird, 1869, 21 D., 864; 31 Scot. .Tiir.. 478. Bills of lading' may be 
 taken in favour of the bearer, and may be transferred by a blank indorsation ; Bell's 
 Prin.. I 417—18 and 19 Vict., r. 111. '
 
 4-J4 BLANKS IN DEEDS. § 653- 
 
 tlement destined certain estates to A B and tlie heirs ol" his body, 
 A\honi failing to ; and the granter, five days after sub- 
 
 scribing the deed, signed before a different set of witnesses a docquet 
 which was appended to the deed, and which mentioned who the 
 granter wished should be inserted as substitutes ; and where the 
 deed was completed accordingly, the Court held that it "had not 
 been filled up in terms of the act 1696, and must therefore still 
 be looked on as blank in the substitution ;" but they sustained 
 the docquet as an independent deed of substitution in favour of the 
 person named in it (</). 
 
 In another case, where a deed of entail contained a destination 
 to certain heirs, "whom failing to such other person or persons " 
 as the granter should name by a writing under his hand; and 
 where, on the day on which he signed the deed, and in his holo- 
 graph letter transmitting it to his agent to be completed, the gran- 
 ter directed him to insert a certain name into the blank which had 
 been left for it, and that was done accordingly, — the Court sustained 
 the deed as effectual to the heirs standing before the heir so nom- 
 inated, but waived deciding on the validity of liis nomination (h). 
 The point is attended with considerable difficulty. 
 
 § 654. If ocular inspection shows that the grantee's name was 
 originally blank (as where it is in a different handwriting from- the 
 rest of the deed), or if the testing clause mentions that such is the 
 fact, without stating that the blank was filled up in terms of the 
 act 1696, the party founding on the deed will have to prove that 
 it was duly completed (i) ; and if the deed is challenged on the 
 head of deathbed, he will require to show that it was completed 
 while the granter was m liege poustie (Jc). But where the testing 
 clause mentions that the blanks were filled up at subscribing or in 
 presence of the instrumentary witnesses, before delivery, the deed 
 is probative ; and the challenger must bear the burden of proving 
 tliat the statute was not observed (1). 
 
 [g) Kennedy v. Arbuthnot, 1722, M., 1681 ; 1 Ross Ca., 566, S. C. The substitute 
 therefore acquired the estate indirectly through the heir-at-law of the previous grantee, 
 instead of taking it directly under the principal deed. {h) Abernethie v. Forbes, 
 
 1835, 13 S., 263. («) Donaldson v. Donaldson, 1749, M., 9080; 5 B. Sup., 236. 
 
 But see Ersk., 3, 2, 6. The cases of Sinclair v. Sinclair, 1746, M., 11,559, and Euddi- 
 inan v. Merchant Maiden Hosp., 1746, M., 11,562, referred to by Erskine, related to 
 writings dated before the act 1696. {k) Livingstone v. Nairn, 1702, M., 12,282 
 
 —Cairns v. Garrock's Crs., 1742, M., 1673. See Birnies v. L. Polmaise, 1678, M., 3242 
 — Pcnnycook v. Thomson, 1687, M., 3243. (/) Sinclair v. Sinchur, 1746, M., 
 
 ] 1,5.59. See Johnstone r. Coldstream, 1843, 5 D., 1297.
 
 § 657. WHAT PART OF DEED SIGNED. 425 
 
 III. What part of the Deed should he Signed. 
 
 § 655. Deeds signed by the sovereign are superscribed with tlie 
 royal sign-uuuiuul and subscribed by an officer of state. But in all 
 deeds by subjects the proper place for authentication is at the foot 
 of the writing ; and when they consist of more than one page, each 
 ought to be signed in this way. The act of authentication is not 
 complete till the party has signed the last page ; and, therefore, if 
 he fails to do so, the deed is inchoate and null, although the failure 
 arose from accident or weakness, and not from altered intention (m). 
 AVhether holograph writings unsubscribed are effectual is considered 
 afterwards. 
 
 § 656. The practice of subscribing before the testing clause is 
 completed sometimes occasions difficulty in filling in that part of 
 the deed above the signatures. In one case of a disposition of heri- 
 tage executed by an illiterate person, where the testing clause was 
 closely crowded and was written in a much smaller cliaracter than 
 the rest of the deed ; a part of it being parallel to, and a small part 
 rather below, the granter's signature, although al)0ve those of the 
 witnesses ; and where some words of style in the clause were on 
 erasure ; — there being no doubt of the genuineness of the subscrip- 
 tion and attestation, the Court sustained the deed (w). 
 
 § 657. As already mentioned, deeds consisting of more than one 
 sheet used to be WTitten on rolls of paper or parchment, the several 
 sheets being pasted together. They were subscribed for the pur- 
 pose of authentication as completed deeds, and were signed across 
 the joinings to prevent fraud by way of interpolation. But the 
 want of sidescription (which was not a statutory solemnity) was 
 overlooked, where fraud did not appear (o) ; and deeds by several 
 persons have been sustained, where only one signed the margins {p). 
 It was not unusual for such deeds to conclude with a clause autlin- 
 rising one of the parties to sidescribe as for the whole of them (r),* 
 
 (»«) Hopkins v. D. Athol, 1728, M., 16,940— Denip.'^tt.r v. Willison, 1799, M., 16,947 
 — Moncrieff V. Monypeniiy, 1710, M., 15,936; affd., Kob. Ap., 27— Kight r. Price, 1779, 
 1 Doug., 241. See infra, % 669. («) Dury v. Dury, 1753, M., 16,936; Elch., 
 
 " Writ," No. 27, S. C. (o) Ersk., 3, 2, 14— Tait, 70— Duff Feud. Con., 3— 
 
 Ferguson v. Burnet, 1748, Elch., "Writ," No. 22— Dunbar v. M'DowaU, 1702, 4 B. 
 Sup., 524— Sim v. Donaldson, 1708. M., 16,807, 16.713. Contra, Macdouald v. Mac- 
 donald, 1714. M., 16,808. {p) Ogilvie v. Findlatcr. 1674, M., 16,804— Patou's 
 
 C"rs., 1711, M.. 16,807. (r) Sclater «;. Clyne, 1831, 9 S., 248 (affd. on another 
 
 * See Galbraith r. Edinburgh and Ghisgow Bank, House of LonL-;, 1859, 31 Sc. Jur. 
 425.
 
 42G SUBSCRIPTION OF DEEDS § 658- 
 
 § 658. The present shape of deeds was introduced by the act 
 1696, c. 15 ; which, after narrating the inconvenience of the old 
 form, makes it "free for any person who hath any contract, decreet, 
 disposition," &c., "to choose whether he will have the same written 
 in sheets battered together as formerly, or to have them written by 
 way of book," "providing (mfer alia) that in the latter case every 
 page be signed as the margins were before," only the last page be- 
 ing signed by the witnesses. Deeds written bookwise and authen- 
 ticated in terms of the statute are declared as valid as those in the 
 old form. 
 
 § 659. The words "as the margins were before" have been read 
 as limiting and explaining the general enactment, so that a deed 
 written on several pages of one sheet is valid, although signed only 
 on the last (s)^; and an execution was sustained which consisted 
 of more than one sheet, one page (containing nothing material) not 
 being signed by the messenger, and another not by the appraisers (t). 
 Whether this rule of construction will protect a deed consisting of 
 several sheets, but signed only once on each sheet, instead of on 
 each page, has not been decided. 
 
 A deed consisting of several sheets, signed by a consenter only 
 on the last page, is not binding upon him (u). 
 
 IV. Of Subscription by persons ivho can ivrite. 
 
 § 660. It has already been mentioned that in olden times per- 
 sons unable to read or write authenticated deeds by a cross, and 
 afterwards by a seal. The subsequent statutes upon the subject are 
 confined to the authentication of deeds, leaving it to be determined 
 upon the facts of each case, whether a deed bearing the legal solem- 
 nities w^as truly consented to and signed. They distinguish only 
 two classes of persons, namely, those who can, and those who cannot, 
 WTite. As the best autheutication is the party's own subscription, 
 the act 1540, cap. 117 (a;), ordained all who could write to execute 
 their deeds in that way; while it appointed those who could not write 
 to use the hand of a notary. The act 1579, c. 80 {y), repeated the 
 
 point, 5 W. S., 625). (s) Smith v. Bank of Scotland, 4th July 1816, F. C- 
 
 Williamson v. Williamson, 1742, M., 1(;,933; 16,955; Elch., "Writ," No. 13, S. C. 
 
 {t) Peter V. Ross, 1795, M., 16,957. (m) Bothwells v. E. Home, 1747, M. 
 
 Ifl.Hll. (x) Quoted supra, 'i 637. (y) Quoted supra, § 639. 
 
 5 Robinson v. Wittemberg, 1860, 23 D., 181.
 
 § 6()3. BY PERSONS AVHO CAN WRITK. 427 
 
 rule as to the Ibriuer cla^is, and rccjuircd tlif latter to subscribe Ijy 
 two notaries before four witnesses. 
 
 § 661. If a person can only sign his name, however rudely, he 
 ought to authenticate his deeds with his own hand, although he 
 may be unable to read tliem (z). Nay more, a blind person who 
 can sign his name is one who can write in the sense of the statutes, 
 and who ought to sign with his own hand (a) ; but, if he chooses, 
 he may execute his deeds notarially (b). A blind person's deed 
 executed in either form and properly attested, is probative ; and, as 
 afterwards noticed, it is not essential that the deed be read over to 
 him before subscription (c). 
 
 § 662. None of the statutes detines the term subscription, which 
 is therefore regulated by custom and common law. Originally it 
 was by a monogram, as already noticed (d). 
 
 A peer subscribes by his title without his christian name ; using 
 only his highest title, unless there be special occasion for signing 
 by an inferior one (e). A peer's wife, who is not a peeress in her 
 own right, subscribes by her husband's title, with her christian name 
 or initials prefixed. Peeresses in their own right also generally 
 sign in tliis way, although they may use their titles alone. 
 
 Engiisli and Irish bishops of the Established Church sign by 
 their christian names or initials, prefixed to the names of their sees. 
 But bishops of other churches, not having legal torrito'ries, have 
 not this privilege (/). 
 
 The eldest sons of all peers except Imrons (although coming 
 under the prohibition of the act 1672, noticed below) have by long 
 custom been allowed to sign with their courtesy titles ((/). 
 
 § 663. All persons, except those above enumerated, ought to 
 sul)scribe by their christian names or initials, with their surnames at 
 length. The custom of calling landed proprietors by the names of 
 
 (z) "Wilson V. Raeburn, 1800, Iluinc D., 912. A subscription may be all written in 
 ciipital letters; Crosbio v. ricken, 1750. M.. 1G,814; Elch., "Writ," No. 25. 
 
 (a) E.Fife v. E. Fife's Trustees, 1823, 1 Sh. Ap., 498, fully noted infra, § G85— 
 Kerr v. Hotchkis, 1837, 15 S., 983— Coutts v. Straiton. 1681, M.. 12,601 ; 6842— over- 
 ruling Falconer v. Arbuthnot, 1761, M., 16,817 ; Elch., "Writ," No. 26, 
 
 (6) Reid v. Baxter, 1840, 13 S., 1063; 16 S., 273 and 994; aflfd., 1 Rob. App. Ca.. 
 60. The docquet in this case merely stated that the grantcr " from defect of sight or 
 dimness of vision, cannot see to read clearly, as he asserts." (c) Infra. § 685. 
 
 (rf) Supra, I 636. (r) Till the 16th century peers used often to prefix their 
 
 christian names; Tait Ev., 66. (/) Sec 14 and 15 Vict., c. 60. 
 
 ((/) Tlioir proper designiitions are in this form, ■'{"he lloinmrable William Ilemy 
 Scott, commonly called the Earl of Dalkeith."
 
 428 SUBSCRIPTION OF DEEDS § 663- 
 
 tlieir estates led to their signing by these alone, like peers. This usur- 
 pation of a lordly privilege occasioned the introduction of a clause 
 into the act 1672, c. 21, " concerning the privileges of the office of 
 Lyon King at Arms;" by which only noblemen and bishops are 
 allowed to sign by their titles ; and all other persons are ordained 
 to " subscribe their christian names or the initial letter thereof, 
 with, their surnames, and may, if they please, adject the designa- 
 tions of their lands, prefixing the word of to the said designations." 
 As the object of the act was not to secure the authentication of 
 deeds, and as its sanction is punishment of the offender, and not 
 nullity of the writing, deeds signed in this way are held to be effec- 
 tual (h). 
 
 § 664. If the subscription to a deed is genuine, and can rea- 
 sonably be regarded as representing the party's name, it will be 
 sustained, although it is faulty both in spelling and penman- 
 ship (/). 
 
 § 665. The oljject of the statutes which enjoin subscription — 
 namely to require an authentication which it would be difficult to 
 ftibricate — is in a great measure defeated where parties sign merely 
 with their initials. Indeed, one who can only scrawl two or three 
 letters can hardly be called a person who "can subscribe" (/). 
 The act 1672, c. 21 (A-), also, seems to forbid subscription by the 
 initials of both name and surname. But uniform practice, com- 
 mencing when writing was not a common accomplishment, has 
 settled the validity of deeds signed by initials (l) ; the act 1672 
 being considered as merely demonstrating the proper mode of sub- 
 scription by commoners, as contrasted with signature by the names 
 of their lands. There seem to be no exceptions as to the deeds 
 which may be validly signed by initials. Bonds (w), discharges (n), 
 leases (o), assignations (p), and contracts of service (r), have been 
 sustained when so authenticated ; and although it has been doubted 
 whether heritage could be carried by a deed signed in this way (s), 
 there is no principle or authority for the distinction. 
 
 (h) Gordon v. Murray, 1765, M., 16,818. {i) See Ferryman v. M'Clymont, 
 
 1852, 14 D., 508 ; compared with Din v. Gillies, 18tli June 1812, noted in Weirs v. 
 Ralston, 22d June 1813, F. C— M'Cally v. Inglis, 1821, 1 S., 69— See supra (z). 
 
 (J) 1579, c. 80, supra, § 639. (k) Supra, § 663. (I) Cases in follow- 
 
 ing notes. (m) Piery v. Ramsay, 1628, M., 16,801 — Houston v. Houston, 1631, 
 
 M., ib.— L. Culterallers v. Chapman, 1667, M., 16,803. (n) Grierson v. 
 
 Grierson, 1633, M., 16,802. (o) E. Traquair ;;. Gibson, 1724, M., 16,809. 
 
 (p) Coutts V. Ktraiton, 1681. M., 16,804. (r) Forrest v. Mar.sliall, 1701, M., 
 
 16,805. («) Crosbie v. Picken, 1749, M., \0.f^]4— Contra. Ker r. Gibson, 1693, 
 
 M., 16,805— Weirs v. Ralston, 22d June 1813, F. C.
 
 § OfJT. BY PERSONS WHO CAN WIJITE. 4-2!) 
 
 § G(J(J. But a iJcoii .sigiiL'il !)_) initials, alUiDii^li iiut null, is not 
 probative, like one which bears a I'lill subscripti<ju ; and it will not 
 receive effect, unless its authenticity is proved (t). Accordingly, a 
 deed subscribed in this way is not effectual as a warrant for summary 
 diligence, and cannot be enforced without an action (w). In seve- 
 ral cases proof of the party's custom to sign by initials was re- 
 quired (x). But such evidence, althougli highly important, espe- 
 cially if the instrumentary witnesses are dead, is not indispensable ; 
 for the first, as well as the last, of a number of deeds signed by the 
 person in this way ought to receive effect (y). A more important 
 circumstance is the party's recognition or adoption of the writing. 
 Every fact, however, which bears on the issue whether the deed is 
 genuine must be taken into view, as each case depends on the whole 
 evidence adduced before the jury upon the point. 
 
 § 667. A deed signed by a cross or mark is null ; as a person 
 who can only authenticate deeds in that way is one who " cannot 
 subscribe " (z). This is also the rule where the marks are intended 
 for the party's name or initials, but do not resemble them (a). Cus- 
 tom and favour to commerce have excepted from this rule docu- 
 ments in re mercatoria, e.g., mandates (6), docqucts to accounts (c), 
 and (what are even more important) bills and promissory-notes (cZ); 
 all which documents have frequently been sustained when authenti- 
 cated merely by a cross or mark (e). It is usual for the mark to be 
 attested by witnesses, especially in bills (/). But this, although 
 
 {t) Ersk., 3, 2, 8— Tait Ev., 66— M'llwraitb v. M'Mickin, 1785, M., 16,820— Carra- 
 way V. Ewing, 1611, M., 16,802. {u) Ersk., 3, 2, 8— Tait, 67 ; 117— Monro v. 
 
 Monro, 1820, Hume D., 81. {x) Piery v. Ramsay, 1628, M., 16,801— L. Cul- 
 
 terallers v. Chapman, 1667, M., 16,803— Stewart r. Stewart, 1670, 2 B. Sup., 475- 
 Coutta V. Straiten, 1681, M., 16,804— Ker v. Gibson, 1693, M., 16,805— Forrest v. Mar- 
 shall, 1701, M., ib.— Meek v. Dunlop, 1707, M., 16,806— Thomson v. Sheill, 1727, M., 
 16,810. (y) Houston v. Houston, 1631, M., 16,801— Grierson v. Grierson, 1633, 
 
 M., 16,802— Galloway v. Thomson, 1683, M., 16,805— E. Traquair v. Gibson, 1724. M., 
 16,809— Alexander, 1755. 5 B. Sup., 829-M'Ihvraith v. M'Mickin, 1785, M., 16,820— 
 Shepherd v. Innes, 1760, M., 16,818— Weirs v. Ralston, 22d Juno 1813, F. C. 
 
 (z) Ersk., 3, 2, 8— Duff Feud. Con., 11— Tait, 68— Graham v. M'Lcod, 1848, 11 D., 
 173. (a) Din v. Gillies, 18th June 1812, noted in Weirs i\ Ralston, 22d June 
 
 1813, F. C— M'Cally v. Inglis, 1821, 1 S.. 09, compared with Parryman v. M'Clymont, 
 1852, 14 D., 508. (6) Bryan v. Murdoch, 1824, 3 S., 282; affirmed 2 W. S., 568. 
 
 (c) Watson v. Hamilton, 1824, 3 Mur., 484. {d) Cases in notes (/). {g). 
 
 (c) The party's name is usually written by some person to identify the mark, thus — 
 John -|- Brown. (/) Brown v. Johnstone, 1662. M., 16,802 — Same parties, 
 
 1669. M., 16,803; 1 B. Sup., 679— Cockburn t-. Gibson, 8th Dec. 1815, F. C— 
 M'Dougall V. Oliphant, 1766. Hailes, 85.
 
 430 SUBSCRIPTION OF DEEDS § 637- 
 
 lii!i;lily useful, is nut iuJispeusable ((/). The indorsation to a de- 
 posit-reeeipt may be signed by a mark {g*).^ 
 
 § 668. Of course a document, even in re mercaforia, when 
 signed in this way, does not warrant summary diligence. It is 
 merely a ground of action ; the party who founds on it being bound 
 to prove its authenticity (Ji). 
 
 § 669. The act of authentication, in order to be effectual, must 
 be completed ; because until it has been, the deed is inchoate as 
 proof of the party's purpose. Accordingly, while a deed which a 
 person meant to sign by initials is valid (i), yet if, intending to 
 write his name at length, he stopped before finishing it, the deed is 
 null (A.-). This was held where a person on deathbed directed a will 
 to be prepared in certain terms, and after having it read over to 
 him, commenced to sign it, but became so weak that he could only 
 write the three first letters of his name (/). So, in another case, 
 where G-eorge Moncriefi", -after subscribing "George Mon"to his 
 will, became unable to finish his signature, upon which the law- 
 agent who had prepared the deed (but who was not a notary) led 
 his hand through the remaining letters, the Court reduced the deed, 
 some of the judges calling it "an abortive embryo that never ar- 
 rived at maturity or perfection " (m). In neither of these cases was 
 there any reason to suppose that the party had altered his intention 
 after commencing to subscribe ; but the deeds were in the condition 
 of those which a person fully intended to execute, but died before 
 completing. 
 
 § 670. The case last cited strongly illustrates another rule of 
 authentication, namely, that, both by the statute above noticed and 
 by common law, it is fatal to a subscription that the party's hand 
 
 ( g) Ker v. Riddell, 1803, Hume D., 50— Craigie v. Scobie, 1832, 10 S., 510— Brown 
 V. Johnstone, sw^pra— Kennedy v. Watson, 25th May 1816, F. C, compared with Stewart 
 V. Russell, 11th July 1815, F. C. See also M'llrioch v. M'Intyre, 2d Dec. 1826, F. C. 
 
 (^») Forbes' Exrs. v. Western Bank, 1853, 16 D., 243 ; 807. (/*) Cockburn 
 
 V. Gibson, supra — M'llrioch v. M'Intyre, supra — Monro v. Monro, 1820, Hume D., 81 — 
 Craigie v. Scobie, supra — Stewart v. Russell, supra. (i) Supira, % 065. 
 
 {k) See mpra, g 655. {I) Hopkins v. D. Atliol, 1728, M., 15,940. 
 
 (m) Moncrieff v. Monypenny, 1710, M., 15,936 ; affirmed, Rob., 26. See a similar 
 case, Allan v. Blair, 1685, 2 B. Sup., 58, where one of the grounds of reduction of a bond 
 was that a notary had led the granter's hand through part of the subscription. 
 
 5 No acceptance of a bill of exchange made after 31st December 1856 is sufficient, 
 unless it is in writing on the bill and signed by the acceptor or by some person duly 
 authorised by him ; 19 and 20 Vict., c. 60, ? H-
 
 § G72. BY PERSONS WHO CAN WRITK. 431 
 
 was led by auuthcr while udliiliitiii;:; it (n). ()iie who requires such 
 assistance "cuiniut suhscrihe " ; the safeguard whi(di comparatio 
 liferarum affords against forgery is lost ; while there is not suffi- 
 cient security that the party wrote with his full free will. On the 
 two first of these grounds, also, a subscription written over a tracing 
 by another person with a pencil, a pin, or the like, is invalid (o). 
 The signature, however, may be copied from the name written by 
 another person (p). 
 
 § G71. Where a party's name is written for him by another, 
 the deed is of course invalid. But the common practice among 
 rustics of authenticating bills in this way has induced the Court to 
 sustain such documents, on proof of the party's authority to sub- 
 scribe for him (q), or of his adoption or homologation of the bill(r). 
 
 The same rule would perhaps be extended to other documents 
 in 7'e mercatoria. 
 
 § 672. As the probative value of a signed deed arises from the 
 signature being supposed to have been adhibited to the writing 
 when completed (s), it follows that if extrinsic proof or ocular in- 
 si)ection show's that the deed was written above the signature, it 
 will fall, unless consent or homologation by the party be clearly 
 proved {t). The exception in regard to skeleton bills has been al- 
 ready noticed (w).^ 
 
 (n) MoncrieiF v. Monypenny, supra — Allan v. Blair, supra — Robertson v. Young, 
 1744, Elch., " Writ," No. 18— Ballingall v. Robertson, 1806, Hume D., 916— Shaw v. 
 Shaw, 1809, Hume D., 922— Wilson v. Pringle, 1814, Hume D., 923. In Falconer v. 
 Arbuthnot, 1751, M., 16,817, Elch., "Writ," No. 26, this rule was applied to a will by 
 a blind person, whose hand had been led by one who was not a notary. 
 
 (o) Crosbie v. Picken, 1750, M., 16,814, Elch., " W' rit," No. 25, S. C— Pringle v. 
 Keill, 1735, M., 16,810— Buchan v. Gouck, 1762, 5 B. Sup. 640. {p) W'ilson 
 
 V. Raeburn, 1800, Hume D., 912. By the first decision in Crosbie v. Picken, supra, the 
 deed was sustained on the footing that the signature had been copied, although it was 
 afterwards reduced on proof that the signature had been written over a scratching with 
 a pin. {q) Jackson v. Williamson, 1825, 4 S., 292 — Gray & Co. f. Robertson, 
 
 1835, 13 S., 720— Lowson v. Matthew, 1823, 2 S., 502. See also Muir v. Braidwood, 
 1831, 10 S., 83— over-ruling Culandar v. Feddes, 1775, 5 B. Sup., 394. 
 
 (r) Mackintosh v. Mucdonald, 1828, 7 S., 155— MiUer v. Little, 1831, 9 S., 328— 
 Maikl.m v. Walker, 1833, 12 S., 53— Reg. v. Parish, 1837, 8 Car. and Pa., 94— Barbar 
 t'. GiugoU, 1800, 3 Esp., 00— 5'«;>ra, § 568. (s) As to filling in the testing clause 
 
 above the subscription, see § 726, et seq. {t) See Muckenzio v. Stuwart, 1848, 
 
 10 D., 611— CampboU v. Grant, 1843, 5 D., 755— Stuart v. Smith, 1680, M., 15,928. 
 
 («) Supra, U 648, 651. 
 
 c All deeds granted by Her Majesty, her heirs or successors, in reference to the 
 private estates of Her Majesty, her heirs or successors, situated in Scotland, are valid, 
 though not executed according to the forms of the law of Scotland, if under the sign-
 
 4:V2 NOTARIAL SUBSCRIPTION. §673- 
 
 V. Of Suhscription by Notaries for persons who cannot twite. 
 
 § 673. It has already been seen that all persons who " can sub- 
 scribe " are bound to authenticate their deeds with their own sig- 
 natures (x), and that blind persons who can write may sign either 
 themselves or notarially (y) ; whereas persons who cannot write 
 what bears a reasonable resemblance to their names or initials must 
 use the aid of notaries (z). This, however, does not apply to affi- 
 davits, depositions, and declarations emitted before magistrates or 
 commissioners of Court by persons who cannot write ; the signa- 
 tures of these officials being sufficient, where the inability to write 
 is set forth. 
 
 § 674. The probative character of a notarial attestation mani- 
 festly arises from its being adhibited by persons for whose fitness 
 for so delicate an office the law takes proper security. But it would 
 be a dangerous source of fraud, as well as of insecurity in rights, if 
 mere defect in the qualifications of the attestors were fatal to a deed 
 which bore a formal notarial execution. Accordingly, the validity 
 of such a deed is secured, if the subscribers were habit and repute 
 notaries, although they were not properly qualified (a). 
 
 § 675. Before the Reformation the functions of the notary (as 
 of many other lay offices) used to be discharged by churchmen. 
 But the act 1584, c. 133, restricted the clergy to their clerical 
 duties, "the making of testaments only excepted" (6). Shortly 
 after this statute, a marriage-contract signed by a clergyman as 
 notary was sustained, on the ground (according to the report) that 
 the sanction of the act was not nullity in the deed, but deposi- 
 tion of the minister from his clerical office (c). But the decision 
 could not properly have stood on this ground ; as the writing was 
 informal from being signed by only one, instead of two persons 
 acting notarially. The Court probably proceeded on the rei inter- 
 
 (z) Supra, §§ 661, 664. {y) Supra, ? 661. (z) Supra, § 667. 
 
 (a) Cunningham v. Sempil, 1553, M., 3091— Seton v. Cant, 1593, M., 12,448— L. 
 Huntly V. L. Forbes, 1619, M., 12,449— Speuce v. Reid, 1610, M., 3092— Douglas v. 
 Chieslie, 1615, M., 3092. {b) See as to authenticating wills, § 767, et seq. 
 
 (c) L. Hassington v. Bartilmo, 1631, M., 16,832. 
 
 manual, attested by two or more witnesses; and, if granted mortis causa, are valid, 
 whether under the sign-manual, or signed by some other person in presence of the 
 granter, and by his or her direction in presence of two or more witnesses who attest 
 them ; 26 and 26 Vict., c. 37, ? 0.
 
 §678. xoTAiUAi, sruscuii'TroN. 483 
 
 ventus and homologation arising IVuni iIk- iiiuniage of the contract- 
 ing parties. 
 
 § G76. A notary is not discjuah'fied l)y relationship to any of 
 the parties to the deed {d). But one cannot act in a deed in his 
 own l"avour {e). Nor can the same notary subscribe for more than 
 one of the parties to a deed {/).'' 
 
 § 677. The act 1540, c. 117, required unly one notary in sub- 
 scription for persons who could not write. But that was altered by 
 the subsisting statute 1579, c. 80, whicli made two notaries indis- 
 pensible in " all contracts, obligations, reversions, assignations, and 
 discharges of reversions, or eiks thereto, and generally all writs 
 importing heritable title or other limids and obligations of great im- 
 portance" ((/). 
 
 § 678. Where a deed bearing a regular notarial subscrii)tion is 
 challenged on the ground that the alleged granter was able to write, 
 and did not authorise the notaries to sign for him, tlie burden of 
 j)roof lies on the challenger in the first instance, as the deed is pro- 
 bative until reduced {h). But if it be admitted or proved that the 
 
 (rf) Reid V. Grindlay, 1839, 9 S., 31— Duff Feud. Con., 14 ; 117. Can a husband 
 attest his wife's deeds'? See Tait, 1848, 10 D.. 1365. (?) Laird Gormock v. 
 
 the Lady, 1583, M., 16,874— Russell v. Kirk. 1827, 6 S., 133— Leith Bank v. Mathers, 
 1836, 14 S., 332. But merely holding stock in a bank will not disqualify a notary in 
 deeds in favour of the bank ; Farries v. Smith, 9th June 1813, F. C. Nor does an 
 emerging interest annul a deed which was attested by a notary competent as at its date ; 
 see Mackenzie v. Smith, 1830, 9 S., 52. (/) Craig t-. Bichardson, 1610, M., 
 
 16,829. {g) This act has been enforced in regard to a disposition of heritage ; 
 
 Kid V. Dickson, 1666, M., 16,835 ; leases of heritage, Swinton v. Brown, 1668, M., 
 3412, 8408 — Wilson, 1729, M., 16,842 ; renunciation of a lease, L. Jerviswood v. L. 
 Livingstone, 1632, M., 16,832, 7408 ; submissions regarding heritage, A v. B, 1617. M., 
 16,829 ; and other deeds relating to such subjects, although the value was within £100 
 Scots, A V. B, 1725, M., 16,842. As to rights not of great importance, see infra, § 748. 
 
 (h) Watson V. Hamilton, 1822, 3 Mur., 29; 481— Veitch v. Horsburgh, 1637, M., 
 
 7 A trust-disposition and settlement of heritage and moveables, executed for the 
 granter by two notaries, was reduced in toto, as not validly authenticated, because one of 
 the notaries was nominated a trustee and executor under the deed, although he did not 
 accept the trust. Tluro wa.s a declaration in the deed that the trustees might employ 
 one of their number as law-agent and might pay him, and as the trustee who signed as 
 notary was an agent, he was not without interest in the deed; it was admitted, and ap- 
 peared from tiie doequet, that he knew the contents of the deed. But according to the 
 principle of the judgment, the deed would have been equally invalid though nothing 
 but a bare trust right had been conferred on the notary, and although he had not been 
 aware of its contents. Lord Deas was not prepared to affirm that the objection wa.s 
 tantamount to the want of a statutory solemnity, and doubted wliether the deed mi-i-ht 
 not have been sustained, if, when it was made, no other notary could be got ; Ferrie r. 
 Ferrie"s Trustees, 1863. 1 Macph., 291. 
 
 VOL. I. 2 K
 
 434 NOTARIAL SUJ}S("H1PTH)X. § 678- 
 
 gTanter could write, aud if the notary's doc(|uet bears generally that 
 he could not, the party founding on the deed would probably re- 
 quire to prove that, at the time of executing it, the granter was 
 uualtle to write in consequence of sickness, accident, or the like, or 
 that he made a statement to that effect to the notaries, and autho- 
 liscd them to subscribe for him (i). In a competition of creditors, 
 where an assignation bearing to be granted by a person who was 
 usually able to write, was signed notarially, the docquet stating 
 that he was unable to write on account of sickness, and where the 
 deed was challenged as false, the Court declined to determine the 
 general point whether the ground of reduction was relevant, but, 
 before answer, they ordained the assignee to adduce what probation 
 he could to prove the alleged inability (k). It is thought that 
 such a docquet is probative of the cause of inability which it sets 
 forth. 
 
 § 679, If the granter of a deed, being able to subscribe, autho- 
 rised notaries to sign for him, it is plain that neither he nor those 
 in his right can impugn the subscription (T). It is doubtful if even 
 creditors or a competing singular successor can do so (m). The 
 notaries' knowledge of the fact would not affect the deed, but would 
 subject them to punishment for malversation (71). 
 
 § 680. To prevent notaries from subscribing deeds without 
 sufficient evidence of the grantor's authority, the Court of Session 
 by an Act of Sederunt did " prohibit and discharge notaries to sub- 
 scribe writs for persons who cannot write themselves, unless it 
 either consist in the notaries knowledge that he for whom or at 
 whose command they subscribe is the person designed in the writ 
 or that the same be attested by those who subscribe witnesses to 
 the notary's subscription, or by other credible persons, and which 
 the notary is to mention when he subscribes for the party" (o). 
 
 § 681. Originally the notary interposed by guiding the hand of 
 the granter of the deed, while the latter signed his own name (p). 
 But now the party signifies his authority by touching the pen of 
 
 16,834; 1 B. Sup., 365, S. C— Ogilvie v. Din's Heirs, 1612, M., 16,829— CampbeU v. 
 Bell, 1610, M., 16,828— Littlejohn v. Hepburn, 1608, M., ib. (i) See cases in 
 
 preceding note. (k) Clark v. Blairgounie, 1683, M., 16,837. See also Little- 
 
 john V. Hepburn, svjira. (l) Veitch v. Horsburgh, 1637, M., 16,834— Ogilvie 
 
 V. Din's Heirs, 1612, M., 16,829— Littlejohn v. Hepburn, 1608, M., 16,828— Duff Feud. 
 Con., 14. See Campbell v. Bell, 1610, M., 16,828— Watson v. Hamilton, 1822, 3 Mur., 
 29. (m) See Clark v. Balgounie, 1683, M., 16,837— Craig v. Collison, 1610, 
 
 M., 16,828— Reid v. Keid's Tr., 1835, 13 S., 1063 ; S. C, 1837, 16 S., 273— Duff, mpra. 
 
 (n) Tait Ev., 81. (o) Act of Sederunt, 21st July 1688. 
 
 (p) 1555, c. 29— Stair, 4, 42, 9— L. Gormock v. the Lady, 1583, M., 16,874.
 
 § G83. NOTARIAL SUBSCRIPTION. 485 
 
 tlio notaries, who thereupon udliihit their respeetive suljscri})tions. 
 This is the mode of attestation pointed out by the act 1681, c. 5 ; 
 which ordains that " no witness sliall subscribe as witness to any 
 party's subscription unless he then know that party, and saw him 
 subscribe, or saw or heard him give warrand to a notar or notars to 
 subscribe for him, and, in evidence thereof, touch the notar's pen, 
 or that the i»arty did, at tlie time of the witnesses subscri])ing, 
 acknowledge liis subscription." It would appear that under this 
 clause the want of touchin<>- the pen is not fatal, where the witnesses 
 heard the i^art}' acknowledge his subscrij)tion by notaries. 
 
 § 682. Tlie two notaries must sign ^mico contextu; because their 
 subscrii)tion represents that of the party, which is indivisable ; and 
 because the act 1579, c. 80, was designed to prevent fraud, by re- 
 quiring two notaries and four witnesses to be engaged together in 
 the authentication (r). They sign each page or leaf, adding the 
 letters N. P. to their signatures, and on the last page appending 
 also their mottoes. The deed ends with a testing clause stating 
 the party's subscription in the usual terms, but mentioning four in- 
 stead of two witnesses (s). Appended to it is the notaries' doc- 
 quet (t). 
 
 § 683. This instrument must state that the notaries had authority 
 to sign both the body of the deed («), and marginal additions when 
 there are any (x). If the statement of authority is omitted, it would 
 seem that witnesses cannot be received to prove it was given (y) . 
 Touching the pen in token of authority ought also to be stated ; but 
 it will 1)0 presumed, until disproved ; and the deed is valid although 
 that fact is not set forth (z). It is proper, but not indispensible, 
 to state the cause of the granter's inability to write (a). 
 
 (r) Ersk., 3, 2, 0— Duff Feud. Con.. 13— Tait, 78-AVhite v. Knox, 1711, M., 16.841 
 — Rollamls v. Rolland, 1767, M., 16,851— M'Morran v. Black, 1624, M.. 16,830— Cow 
 V. Craig. 1633, M., 16,833; 1 B. Sup., 343, S. C— A B, 1666, 2 B. Sup., 426. 
 
 (s) Duff Feud. Con., 13. (t) There is no universal form for the docquet. 
 
 It is usually written by one of the notaries, and signed by him and by the other, who 
 prefixes to his subscription the words " ita est," and adds to it " notary-public and co- 
 notary in tlie premises." (m) Birrel v. Moffat, 1745, M., 16,846, Elch., " Writ," 
 19, S. C— rhilip V. Cheap, 1667, M., 16,835, 17,019; 1 B. Sup., 544, S. C— Mackenzie 
 V. Burnet, 1688, M., 16,838— Williamson v. Urquhart, 1688, M., 16,838. In Birrel v. 
 Moffat, it was held that the statement of authority cannot be made in the deed, because 
 that cannot be looked at until the authority to sign it is proved. But this may be 
 doubted. (z) Elliots r. Riddle, 1605. M., 16,838. There is room for doubt 
 whether the want of this is a nullity ; as the general statement of authority to sign in- 
 cludes all the requisite subscrijitions, whether at the bottom or margin of each page. 
 
 {;/) Philip V. Cheap, supra. {z) Duff Feud. Con., 13_Tait, 79— Dallas r. Paul. 
 
 1704. M., 16,83!)- Maver i-. Russel, 1710, M., 10,841. (a) Tait, 80— Duff, 14. 
 
 '1 e2
 
 43(5 READING THE DEED § 683- 
 
 Where a notary's docquet contains his name in his own hand- 
 writing, it is valid, although it is not subscribed by him (/>). 
 
 VI. Of Beading the Deed to the Party before Subscription. 
 
 § 684, Every deed ought before subscription to be read over by 
 the party, or to him if he cannot read. The manifest propriety of 
 this proceeding led the Court in several cases to reduce deeds by 
 blind persons or persons unable to read, where the omission to read 
 them to the granters before subscription was combined with other 
 suspicious circumstances (c/). It was even held to be an essential 
 solemnity in all such deeds that they should be read over to the 
 party before subscription (e). And in one case a will signed by a 
 party was reduced (although there was no proof of fraud) on the 
 ground that the instructions for preparing it had been given in May, 
 and that when it was signed in August it was not read over or its 
 substance recapitulated to the granter who was then on his death- 
 bed (/). It was doubtful on the older cases whether a deed by one 
 unable to read required to be read to him in presence of the instru- 
 mentary witnesses {g). 
 
 § 685. These decisions (which were all pronounced before the 
 introduction of jury trials in civil causes) did not properly discrimi- 
 nate between what are by law solemnities essential to the execution 
 of deeds, and wdiat is merely a circumstance — although an impor- 
 tant one — in the question of fact, whether a deed formally executed 
 was truly consented to by the apparent granter. That distinction 
 was first brought out in the leading case of the Earl of Fife v. Sir 
 James DufP, in which the House of Lords, reversing the decision of 
 
 {b) Cullen V. Thomson, 1731, M., 16,842— Gordon v. Murray, 1765, M., 16,818. 
 
 {d) Falconer v. Arbuthnot, 1751, Elch., "Writ," No. 26— Ross v. Aglianby 
 (Lothian's case), M., 16,853; affd., 11th Juno 1794, 10 F. C, Appx., 8, as explained 
 by Lords Ch. Eldon and Redesdale in E. Fife's case, 1823, 1 Sh. App. Ca., 547, 567— 
 Bayne v. Belshes, 1793, Hume D., 908— Paterson v. Smith, 1809, Hume D., 921. 
 
 (e) In Barbour v. Caddell, 1790, Hume D., 906, it was so held as to a deed signed 
 by a mark. See also Petrie v. Lithgow, 1742, M., 15,941, S. C., Elch., "Testament," 
 No. 3 — Young's Children v. Anderson, 1688, M., 15,929. But when a deed was signed 
 notarially, it was held not essential to mention in the notary's docquet that it had been 
 read over to the party ; Yorkstoun v. Grieve, 1794, M., 16,856— Stoddart v. Arkley, 
 1799, M., 16,857— Dewar v. M'Gregor, 1801, Hume D., 913. Contra, Ross v. Aglianby, 
 1792, M., 16,853. (/) Arbuthnot v. Burnet, 1694, M., 15,929 ; and see Robert- 
 
 son V. Ker, 1742, M., 15,942 ; Elch., " Testament," No. 6, S. C. {g) Compare 
 
 Dewar v. M'Gregor, supra (e), Falconer v. Arbuthnot, supra (d), and Ross v. Aglianby, 
 s^/pra (e).
 
 ^(jSi). BEFORE SUBSCKII'TIOX. 4:57 
 
 the Court of Session, held that it is not an essential solenmily to a 
 deed signed hy a blind person that it be read over to him l)ef"ore 
 subscription. Accordingly, a deed executed by such a person with 
 his own subscription, and properly attested, is probative and elfec- 
 tual until redueed. In the action of reduction the granter's know- 
 ledge of its contents is presumed, but may be disproved ; and the 
 fact of not reading it over is admissible and important, but not 
 conclusive, evidence of the want of such knowledge (h). 
 
 {h) Duff V. the Earl of Fife, 1823, 1 Sh. Ap. Ca., 498 ; reversing 30th November 
 1819, F. C. Thiri v?a3 an action of reduction of a trust-deed and deed of entail, both 
 executed on 7tli October 1808, and of a deed altering them in some respects, which was 
 executed on 12th November of the same year. They were all subscribed by the Earl of 
 Fife with his ovra hand when ho was blind ; and each bore the attestations of two writ- 
 uesses named and designed in common form. The Court of Session had reduced the 
 two first deeds, on the ground of tlie omission to read them over before subscription, ami 
 also the deed of alteration, but without stating distinctly the ground of that part of their 
 decision. The House of Lords' judgment of reversal contains the following findings 
 (1 Sh. Ap., 509): " Find that, under the circumstances of this case, notwithstanding the 
 defect in sight of the Earl of Fife, proved upon the issues formerly tried in this cause, 
 the signature of the instriiments in (question by notaries was not required by the statute 
 of 1579, and that the signature of the Earl of Fife was the proper signature to give 
 effect to those instruments, according to the true intent and meaning of the statute ; 
 that the signature of the Earl of Fife appearing on the face of the said instruments, and 
 the instruments being aj^pareutly attested by two witnesses, the instruments apparently 
 so signed and attested are in law probative deeds ; and that to impeach such instru- 
 ments as probative deeds of the Earl of Fife the pursuer was bound to prove that the 
 witnesses, or one of them, did not see the Earl of Fife subscribe the said instruments 
 respectively, or hear him acknowledge his subscription thereto ; that to impeach the 
 said instruments respectively, though in law probative instruments, as the deeds of the 
 Earl of Fife, on the ground that the Earl of Fife did not know the contents of such in- 
 struments respectively when he subscribed the same respectively, and that therefore the 
 same were not respectively the deeds of the Earl of Fife, the pursuer was bound to prove 
 that the Earl did not know the contents of such instruments respectively when he sub- 
 scribed the same respectively ; that it is not a solemnity required by law that the said 
 instruments respectively should have been read ever to the Earl of Fife at the times of 
 the execution thereof respectively, or at any other time or times ; and that if such in- 
 struments respectively were duly executed and attested by the Earl, and in law proba- 
 tive instruments, the knowledge of the Earl of the contents thereof respectively must 
 bo presumed until the contrary should be shown ; but that proof that the said instru- 
 ments respectively were not read over to the Earl of Fife at the time of execution 
 thereof, is evidence to be received that he did not know the contents of such instru- 
 ments respectively, but that such evidence is not conclusive evidence that he did not 
 know the contents of such instruments respectively, inasmuch as his knowledge of the 
 contents of such instruments may be proved by other evidence from which such know- 
 ledge may be inferred ; that execution by the Earl of Fife of the instrument purporting 
 to be a deed of alteration of the deed of trust-disposition sought to be reduced, supix)s- 
 ing such deed of alteration was executed and attested according to the statute, and that 
 tlie Earl know tiie contents thereof, is evidence to be received to prove that tiie Earl of
 
 438 WITNESSES TO DEEDS. § 686- 
 
 § 68ii. Not long after that judgment the Court of Session found 
 that the allegations against a deed were not relevant to infer impe- 
 tration ; one of them being that it had not been read over or ex- 
 plained to the granter, who was blind when he signed it {i). 
 
 The rule thus settled with regard to deeds signed by blind per- 
 sons with their own hands, applies equally to deeds subscribed no- 
 tarially for persons unable to wi'ite. 
 
 VII. Whe7i Instrumental^ Witnesses are required. 
 
 § 687. When a deed is subscribed with the party's own hand, 
 the attendance of witnesses is required expressly by the acts 1540, 
 c. 117, and 1681, c. 5, and indirectly by the act 1593, c. 179. The 
 act 1579, c. 80, fixes their attendance at notarial subscription of 
 deeds importing heritable title, and deeds of great importance. 
 
 § 688. Mr Erskine (Jc), following Sir George Mackenzie Q), 
 and founding on two decisions of old date, holds that deeds sub- 
 scribed by members of a corporation, or even by a number of pri- 
 vate persons, are effectual without witnesses; the parties being 
 presumed to have been witnesses to each other's subscriptions. 
 But one of these cases (m) occurred before the act 1681, and re- 
 lated to a writing in re mercatoria; and the other (w) is not a pre- 
 cedent on the general point, as the obhgation undertaken by each 
 subscriber was less than £100 Scots, and the precise ground of de- 
 cision is not reported (o). Of the other cases which favour Mr 
 Erskine's view two (p) occurred before the act 1681, and in de- 
 crees arbitral, which were not strictly dealt with at that time ; and 
 in the remaining case of the same tendency (r), the writing (a 
 bond of astriction) had been homologated by both parties for seve- 
 
 Fife did know the contents of such trust-disposition and deed of entail respectively at 
 the time when such trust-disposition and deed of entail appear on the face thereof to 
 have been signed by the said Earl." 
 
 With these and some additional findings, the case was remitted to the Court of Ses- 
 sion for new trial on an issue — Whether the deeds in question were not the deeds of the 
 Earl of Fife ? The result of the second trial was to cut down the two principal deeds, on 
 the ground that one of the instrumentary witnesses had not seen the granter subscribe, 
 or heard him acknowledge his subscription ; E. Fife, 3 Mur., 497 ; 4 S., 335 ; 2 W. S.. 
 166. (i) Ker v. Hotchkis, 1837, 15 S., 983. {k) Ersk., 3, 2, 23. 
 
 {I) Mack. Obs. on 6 Pari. James VI (1579), c. 80, obs. 3. {vi) Forrest v. 
 
 Veitch, 1676, M., 16,970. (n) Sea-box of Queensferry v. Stewart, 1732, M., 
 
 16,899. (o) Bell on Testing Deeds, Lee. 3, p. 94. (p) Moncur v. Wad- 
 
 dfU, 1615, M., 16,876— Hunter ?;. Halyburton, 1632, M., 16,880; 11,620. S. C. 
 
 (r) Rutherford v. Feuars of Bowrlcn, 1748, M., 8443.
 
 § 080. WITNESSES TO DEEDS. 439 
 
 nil years.— Oil tlic utlier liaiitl, deeds signed by three («) and four {f) 
 co-obligants liavo been Iield ineffectual from wanting instruincntary 
 witnesses ; and a deed signed by the INlanjuis of Doughis, his cura- 
 tors and a third [)arty, fell in consc<iuence of the same defect, the 
 Court treating the oi»posite view as " unteiudde in any case" (m). 
 It is inconsistent with the terms of the statutes; and is objec- 
 tionable on the ground that one party to a deed cannot attest an- 
 other's subscrij)tio)i. Accordingly, there is good ground lor hold- 
 ing, with the majority of text writers (x), that instrumentary wit- 
 nesses are reijuired. however numerous the parties to the deed may 
 
 VI 11. Wlio matj he Instmmentary Witnesses. 
 
 § G8'J. it IS manifest that one who is either bliiul (//) <»r insane 
 when a deed is executed, cannot be an instrumentary witness to it. 
 Pui)ils also scorn not to be comi)etent for that office (;2). Accord- 
 ing to some eminent authorities women are disqualilied («). But 
 this is more than doubtful. Originally, if any were present at the 
 subscription, their names were included in the list of witnesses ap- 
 pended to the deed (6) ; and altliougli their exclusion in practice 
 naturally followed upon the statutes which reciuired the witnesses 
 to subscribe, and which were passed when not many men, and but 
 few women, could write ; there seems to be no good ground for ex- 
 cluding them in modern times, when they are perfectly fit for the 
 office (c). Accordingly, in the only modern case in which the 
 
 («) Miller v. Farquharson, 1835, 13 S., 838. The opinion of the Lord Ordinary in 
 this case (the very learned Lord Corehouse) is against Mr Erskine's view. 
 
 (<) Rankine i;. Williamson, 1G33, M., 1(3.881— See Welsh v. Milligan, 1794, Bell's 
 Fo. Ca., 44. («) Douglas v. Littlegill's Crs., 1742, M., 17,033 ; 5 B. Sup., 744 ; 
 
 Elch., "Writ," No. 11, S. C. (x) Bankt., 1, 11, 33— BeU on Testing Deeds, 
 
 Lee. 3, page 88, et ««g.— More, 398— Tait Ev., 83— DufT Feud. Con., 2S— Contra, 1 Boss 
 Lee, 151— The point was raised in Smith v. Bank of Scotland, 25th January 1821, 
 F. C. (y) A deed was reduced on the verdict of a jury finding that one of the 
 
 witnesses was almost quite blind; Cunningham v. Spence, 1824, 3 Mur., 402; 3 S., 205, 
 S. C. (z) Ersk., 4, 2. 27—1 Ross Lee. 148— Tait Ev., 84— Duff Fend. Con., 15 
 
 —Davidson v. Chartoris, 1738, JI., 16,899; Elch., " Witness," No. 2— But see contra D. 
 Quecnsl.crry e. Barker. 7th .July 1810, F. C— Home v. Home. 1582, M.. 8906— See also 
 Fountainhall, 3 B. Sup.. 344. (a) Ersk., 4, 2, 27— Bankt.. 1, 11, 27— ib., 4. 30, 
 
 20—1 Ross Lee, 148. In the opinions of .John Clerk (Lord Eldin), Adam Gillies (Lord 
 (rillies), and David Cathcart (Lord Alloway), in the Dalryniple cause, it is stated that a 
 woman cannot be an instrumentary witness; see 2 Hag. Con. Rep., Appx., 110, 124, 142. 
 
 (6) 1 Ross Lee, 125— More, 399. (c) The point is stated as doubtful by 
 
 Mackenzie, Obs. on 6 Pari. .Tames VI (1579). e 80— and Burnett on Cr., 390. note. Pro- 
 fessor More thinks women are admissible ; Notes to Stair, .^99.
 
 440 WITNESSES TO DEEDS. § 689- 
 
 point arose, an issue was tried, Whether the subscription of a fe- 
 male as witness was genuine ? — thereby inferring that she was com- 
 petent (d). 
 
 As the witnesses must subscribe the deed, a person who cannot 
 write, or who can only A\Tite his initials, is incompetent (c). 
 
 § 690. The old objection of interest was much limited in regard 
 to instrumentary wdtnesses, on the ground that the law should not 
 hold as disqualified those who were chosen by the parties to attest 
 their deeds (/). Thus legatees in small sums (g), and even a "con- 
 siderable legatee" (Ji), were held competent ; and deeds of nomina- 
 tion to a gratuitous office, e.g., trustee or executor, have been re- 
 peatedly sustained, where the person so named was one of the 
 witnesses to the granter's subscription (t). A will was even held 
 effectual, where one of the witnesses was both a legatee in a small 
 sum and an executor (k). But where the creditor in a bond was 
 one of the witnesses to the debtor's subscription, the deed was very 
 justly held null (I). The late statutes (m), which abolished the 
 objection of interest as a ground for excluding witnesses in Courts 
 of law, and admitted the parties as witnesses in most civil causes, 
 do not (it is thought) remove this objection to instrumentary 
 witnesses ; and considering how many and dangerous frauds would 
 be perpetrated, if a party could legally witness all deeds in his own 
 favour, there is good ground for retaining the disqualification. In 
 practice it need hardly be observed, one who has any interest under 
 a deed should never be chosen to attest it. 
 
 § 691. The objections of relationship (n), agency (o), and in- 
 famy {p ), were lield not to apply to instrumentary witnesses at a 
 time when these were peremptory grounds of exclusion in other 
 matters. But the admissibility of an instrumentary witness so 
 
 (d) Setton v. Setton's Tr„ 1816, 1 Mur., 10. The subscription was found not to be 
 genuine. (e) Setton v. Setton's Tr., supra — Meek v. Dunlop, 1707, M., 16,806 
 
 —Stewart v. Stewart, 1779, M., 16,906. (/) 1 Ross Lee, 148— Dufif Feud. 
 
 Con., 15. (ff) Ingram v. Steinson, 1801, M., "Writ," Appx., No. 2. 
 
 (k) Grahame v. M. Montrose, 1685, M., 16,887. {i) Mitchell v. Miller, 1742, 
 
 M., 16,900— Tennent );. Tennent's Tr., 1742, Elch., "Writ," No. 12— Scott v. Caver- 
 hiU, 1786, M., 16,779— Ingram v. Steinson, 1801, M., "Writ," Appx., No. 2— Contra, 
 Laird of Innerleith v. Bishop of Glasgow, 1613, M., 16,876— and Ersk., 4, 2, 27. 
 
 {k) Ingram v. Steinson, supra. [l) Eobertson v. Abercrombie, 1627, M., 
 
 16,879—1 Ross Lee, 148. (m) 15 and 16 Viet., c. 27, § 1—16 Vict., c. 20, R 2, 3. 
 
 («) Ersk., 4, 2, 27— Hamilton's Crs. v. Hamilton, 1713, M., 16,734— Falconer v. Ar- 
 l.uthnot, 1750, M., 16,759— Thomson v. Borthwick, 1742, Elch., "Witness," No. 16. 
 
 (o) Er.sk., mpra—ficott v. Caverhill, 1786, M., 16,779— E. March v. Sawyer, 1749. 
 M., 16,757. (p) Ersk., «M/yra— Baillie v. Lockhart, 1710, M., 8433; 10,891, S. C.
 
 § 693. WITNESSES TO DEEDS. 441 
 
 taiiitcil was liiiiitcMl to facts iiiiiiictliatoly connocteil with llic res 
 (jestae of executiu^^ the deed. And aceurdiii^ly, he was nut all<j\ved 
 to be examined as to ^vhethel• the granter of a bond, lieing in mino- 
 rity, had represented himself to be major (/•), or whether tlie 
 grantor of a deed affecting heritage was in Imje pousfie at its 
 date (i). 
 
 TX. How many Witnesses are required. 
 
 § 692. In all deeds signed by the party himself and reciuiring 
 to be attested, two witnesses are required, being the smallest num- 
 ber which could come under the term " witnesses " in the acts of 
 1540, and lOSl. Tlie act 1579, c. 80, requires four witnesses to 
 the notarial subscription of deeds importing heritable title and 
 deeds "of great importance" (0- The immber required in other 
 deeds and testaments signed notarially is considered afterwards. 
 
 The same witnesses may attest the subscriptions of any number 
 of parties, whether signing themselves or using notaries (w).^ 
 
 X. 0/ the Witnesses' knowledge that the Subscription is genuine. 
 
 § 693. The acts 1681, c. 5, prohibits persons from subscribing 
 as witnesses unless they " then know the party ; " and it declares 
 that persons contravening the provision shall be punished as acces- 
 sory to forgery. But this irregularity — like that of the witness not 
 seeing the party subscribe, or hearing him acknowledge his sub- 
 scription, for which the same sanction is provided (x) — is also fatal 
 to the deed (^). The act has been liberally interpreted as to the 
 extent of the witnesses' acquaintance with the party. He may 
 safely and validly attest, provided he has credible information from 
 those present, or even from the person subscribing, that tliat person 
 is the granter of the deed (2). In such cases, however, the meagre 
 
 (r) Thomson v. Borthwick, supra. (s) Ersk., sM/>ra— Hamiltou i: Hamilton, 
 
 siipra — But see Falconer v. Arbnthnot, supra. {I) This was enforced in Sclanders 
 
 V. Hill, 1710, M., G844— Abercrombie, 1G13, M., 16.829. (w) Hardie i-. Hardie, 
 
 6th December 1810, F. C. (x) See infra (a). (i/) Camiibill v. Kobert- 
 
 8on, 1698, M., 1G,887. See Young v. Glen, 1770, M., 16,905; Hailos, 364, S. C. 
 
 (2) In Walker v. Adanison, 1716, M.. 16,896, a deed was sustained where the wit- 
 nesses were merely informed by tlie neighbours and the person subscribing that she was 
 the granter ; but in Campbell v. Robertson, supra, where a boy of fourteen was called 
 
 8 The signature of a subscriber of the memorandum or articles of association of a 
 company, under the Companios Act 1862, is suffioirntly attested by one witness; 2-5 
 and 26 Vict., c. 89, U 11. lt>.
 
 442 WITNESSES TO DEEDS. § 093- 
 
 knowledge which the witness had as to the i2,rantor's identity would 
 be an important fact, if the deed were alleged to he forged. 
 
 § 694. The act 1681, c. 5, also enjoins that "no witness shall 
 subscribe as witness to any party's subscription, unless he" "saw 
 him subscribe," " or that the party did at the time of the witness' 
 subscribing acknowledge his subscription." If the witness signed 
 without having one or other of these proofs of authenticity, the 
 deed is null, although there is no doubt as to its genuineness (a). 
 In one of the trials of the Earl of Fife's case the point occurred, 
 whether a blind person's acknowledgment of his subscription to a 
 witness who did not see it adhibited is sufficient. The Lord Chief 
 Commissioner charged the jury thus : — " It is agreed that Wilson 
 the witness did not see the deed subscribed ; and therefore the 
 point to be proved is, whether the Earl acknowledged his signature. 
 Here the first question is. Was it vocally acknowledged ? It is ad- 
 mitted that the subscribing was not seen, and it is proved that there 
 was no vocal acknowledgment. This is a second step the pursuer 
 has made, which reduces the case to one of acknowledgment by 
 facts and circumstances. The question is. Whether the pursuer had 
 brought such evidence as satisfies you of the non-acknowledg- 
 ment ?" (6). His Lordship, therefore, held that the blind Earl's 
 subscription would have been validly attested, had the witness 
 merely heard him acknowledge it. In such cases there would be 
 no difficulty, if the deed had not been out of the granter's hands 
 between his subscription and acknowledgment. But even if it had, 
 the granter might have identified it to the witness' satisfaction, as 
 wdiere it consisted of a certain number of pages of paper or vellum 
 with certain marks. But a bare acknowledgment ex intervallo by 
 
 off the street to be a witness, and tUd not know the party, the deed was reduced, al- 
 though the Court .believed the subscription to be genuine. In reporting this case, 
 Fountainhall observes that the knowledge required " cannot be understood of a distinct 
 particular antecedent knowledge, but only that he called himself so to the witnesses, 
 else many bonds and other writs may be questioned on tliis head." 
 
 (a) £. Fife v. E. Fife's Trs., 1825, 3 Mur., 497 ; 4 S., 335 ; affirmed, 2 W. S., 166— 
 Forbes v. Reid, 1698, 4 B. Sup., 404— Young v. Ritchie, 1761. M., 17,047— Stevenson 
 V. Stevenson, 1682, M., 16,886— Blair v. Poddie, 1684, M., 13,942. In applying this 
 rule the Court discriminate between a distinct statement by the instrumentary witness 
 de recenti that he did not see the subscription adhibited or hear it acknowledged, and a 
 mere non memini, especially if some interval elapsed since the attestation ; see Smith v. 
 Bank of Scotland, 25th Jan. 1821, as noticed per curiam in E. Fife's case, 22d Dec. 
 1825, F. C— Young v. Glen, 1770, M., 16,905 ; Hailes. 364, S. 0. See on this the sec- 
 tions on the improbations of deeds, infra, § 907, et seq. {/>) E. Fife v. E. Fife's 
 Trustees, 1825, 3 Murray, 498. The V(>rdict was against the deed.
 
 § G98. wiTNi':ssES to deeds. 443 
 
 a blind person, witliont some sndi idmlilication, would lie insuili- 
 cient. 
 
 § 695. When the d<(il is not signed in presence of the attesting 
 witnesses, the granter sliould acknowledge his subscription to them 
 in express W(jrds. But a virtual arknowledgnient, or one exhibited 
 by conduct, not by words, is sullicient, provided it be clear and un- 
 equivocal (c). 
 
 § 096. In deeds signed by notaries the witnesses attest the 
 party's notarial execution, and not nierel)'^ the notaries' signatures. 
 The act 1681, c. 5, accordingly enjoins witnesses not to subscribe, 
 unless they " saw or heard the party give warning to a notar or 
 notars to subscribe for him, and in evidence thereof touch the 
 notar's pen." This enactment (like those already noticed) is en- 
 forced with nullity of the deed (d). 
 
 § 697. The attestation is valid, although the body of the deed 
 was purposely concealed from the witness ; for he iias only to at- 
 tend to the genuineness of the subscription, not to the terms of the 
 writing authenticated (e). 
 
 XI. Of Suhscription by the Instrument ary Witnesses. 
 
 § 698. As already mentioned, the act 1540, c. 117, ordained 
 that " na faith be given " to writs which did not bear the subscrip- 
 tions of the granter and witnesses. But the latter requisite was 
 not observed in practice (/). It was made imperative by the act 
 of 1681, c. 5 {g), and has since that time been considered as indis- 
 pensible to subscription either by the parties themselves or nota- 
 rially (A). The witnesses require to sign only the last page, how- 
 ever long the deed may be {i). 
 
 (c) Per Lord Chief Commissioner in Earl of Fife's case, supra, and per L.-Ch. Eldon 
 in same case on appeal, 2 W. S., 201 — Bell on Testing Deeds, 272. 
 
 (d) Storach v. Clieync, 1678, M., 12,(JG8. In Fanners v. Myk'S, 17G0. M., 16,849. 
 the deed fell, because tlirce of the witnesses did not hear the authority given or see the 
 notaries' pens touched. In Johnston v. Johnston, 1698, 4 B. Sup., 418, a deed was re- 
 duced, because two of the witnesses signed in presence of the granter, but without hear- 
 ing warrant given to the notaries, and another denied his subscription. See also An- 
 derson V. Cock, 1709, M., 16,840, where tlie nullity was that one of the witnesses added 
 to his signature, " witness to the co-notary's subscription." So deeds signed at different 
 places with two dift'orent witnesses to each notary's signature, instead of four witnesses 
 seeing tho whole notarial subscription, have been reduced, although the party admitted 
 his authority to sign; Rolland v. Kolland. 1767. M.. 16.851 — Whyte v. Knox, 1711, 
 M., 16,841— M-Morrau t-. Black. 1624, M., 16.830— 5M/)m. ? 682. 
 
 (e) Ormiston v. Hamilton. 1708, M., 1(),890. (/) Ersk.. 3. 2. 7. 
 ((/) Supra. § 642. (h) Ersk., 3, 2, 13— Tait, 82— Duff Feud. Con.. 16. 
 (.) 1696, c. 15.
 
 444 "WITNESSES TO DEEDS. § 599- 
 
 It is iiidispensible that each witness slioukl sign with his own 
 hand, and not use the intervention of another person whose pen he 
 has touched (k) ; and a subscription by initials is ineflectual (l). 
 Each ought to add the word " witness " to his signature ; but that 
 is not essential to the attestation (m). 
 
 § 699. Where one of the witnesses to a notarial subscription 
 added to his signature " mtness to the co-notary's subscription/' 
 the attestation was held to be limited, and the deed fell, although 
 the docquet bore that it was signed by two notaries before four 
 witnesses (»). 
 
 § 700. Witnesses who attest the subscriptions of several parties 
 signing unico contextu, require to sign only once ; but their subscrip- 
 tions should be repeated (although that is not indispensible), when 
 any of the parties sign separately (o). 
 
 § 701. The witnesses to subscription by the same party may 
 sign at different times, e.g., when one sees the subscription ad- 
 hibited and the other hears it acknowledged (p) ; and it is not in- 
 dispensible that witnesses to a notarial subscription should sign at 
 the same time (r). In all cases, however, the deed must be com- 
 plete before it is produced in judgment (s). And if it appears that 
 any of the subscriptions were adhibited ex intervallo, the jury will 
 have to determine on the evidence, whether the deed so attested is 
 the same as the deed executed (;'). 
 
 § 702. A deed signed by the witnesses in anticipation of a sub- 
 scription which, although genuine, was not adhibited or acknow- 
 ledged in their presence, is null (w).^ 
 
 XII. Of the Testing Clause. 
 
 § 703. Every formal deed must conclude with a testing clause, 
 in which are set forth the facts relating to its execution and au- 
 thentication. This clause mentions — (a) the number of pages of 
 
 (A) Setton v. Setton's Tr., 1816, 1 Mur., 9— Stewart v. Stewart, 1779, M., 16,906. 
 
 {I) Meek v. Dunlop, 1707, M., 16,806. (m) Morrison v. L. Salton, 1694, 
 
 4 B. Sup., 163— L. Blantyre, 1850, 13 D., 40. (n) Anderson v. Cock, 1749, 
 
 M., 16,840. (o) See Edmonstone v. Edmonstone, 1749, M., 16,901. 
 
 (p) Robertson v. M'Caig, 1823, 2 S., 544. (r) See Straiton v. Robertson, 
 
 1710, M., 8344. (s) Straiton v. Robertson, supra. (t) Compare 
 
 Frank v. Frank, 1795, M., 16,824, affd. 1809, 15 F. C, Appx., 753, with Hume v. Dick- 
 son, 1730, M., 16,898. (m) Young v. Ritchie, 1761, M., 17,047. 
 
 ' Maclean or Morrison v. Maclean, 1863, 1 Macph., 304.
 
 § 704. TESTING CLAUSE. 445 
 
 wliich the deed consists, when it extends over more tlian one — (b) 
 tlie name and designation of the writer — (c) tlie fact tliat tlie deed 
 was subscribed by the granter — (d) the date and place of sub- 
 scription — (e) the names and designations of the witnesses — (f) 
 the marginal additions, interlineations, or erasures, if there be any 
 such. 
 
 § 704. A — Mentioning the number of pages. — The act 1696, 
 c. 15, directs that, in deeds written bookways, " the end of the last 
 page make mention how many pages are therein contained." This, 
 however, is not indispensible in deeds written on one sheet (x); and 
 in other cases it is enough to mention merely the number of sheets 
 of which the deed consists (?/). Even errors in the enumeration of 
 the pages have been overlooked, where it served to indicate the 
 proper number ; as in the cases of a deed written on ten pages, 
 bearing to be " on this and the ten preceding pages" (2), and of an 
 instrument of sasine in the old form written on nine, and bearing 
 to be on eight pages (a). A deed was sustained where the testing 
 clause stated that it was written " on this and the twelve preceding 
 pages," and the word " pages" was on erasure {h)\ and where a deed 
 consisting of seven pages bore to be " written on this and the six 
 preceding pages," but x was on erasure, the deed was sustained (c); 
 as was also a deed which was stated to be " written on this and the 
 twelve preceding pages," the letters ve being on erasure (d). In 
 these cases the letters which were not written over erasures would 
 not have corresponded to any other numbers than those of which 
 the deeds respectively consisted. In another case a deed on several 
 sheets was sustained without the pages being numbered at all, the 
 catchwords identifying the several pages as consecutive. But the 
 Court were in a great measure moved by its being a marriage-con- 
 tract, on which marriage had ensued (e). 
 
 (x) Macdonald v. Macdonald, 1778, M., 16,956— Hailcs, 789, S. C— Robertson v. 
 Ker, 1742, M., 16,955, Elch., " Writ," No. 10, S. C— See supra, g 659. An instrument 
 of sasine on one page, bearing to be on tliis and the two preceding pages, was sustained ; 
 Morrison v. Ramsay, 1826, 5 S., 150. {y) Henderson v. Wilson, 1797, M., 
 
 17,059 ; 15,444 ; M., App. " Tailzie," No. 3, S. C. (z) Smith v. North B. Insur. 
 
 Co., 1850, 12 D., 1132. (a) Dickson v. Cunningham, 1829, 7 S., 503; atHrmed 
 
 5 W. S., 657 — See also M'Ghie v. Lcishman, 1827, 5 S. U., 758. Mentioning the pages 
 in instruments of sasine is required by 1686, c. 17. (6) Morrison v. Nisbet, 
 
 1829, 7 S., 810. (c) E.Cassilis r. Kennedy, 1831, 9 S., 663. Sasine and con- 
 
 firmation had passed on the deed forty years before the question as to its validity was 
 raised. (rf) Gaj-wood v. M'Keand, 1828, 6 S.. 991. (e) Porteous v. 
 
 Bell, 1757, 5 B. Sup., 855. This case was not properly decided on the principle of rei 
 interventus, by which there could be no doubt that the deed had been valid-.itod. See 
 the chapter on ret interventus, below, § 816, et seq.
 
 446 TESTING CLAUSE. § 705- 
 
 § 705. These decisions leave the question still open, Whether 
 a deed is null where the number of pages is omitted, or where the 
 statement of them is so inaccurate as to be equivalent to an omis- 
 sion? On the one hand, the act 169G docs not declare that deeds 
 in which the pages are not enumerated shall Ije held null. But on 
 the other hand, it only allows parties to write their deeds bookways, 
 provided the number of pages be mentioned ; and it is only deeds 
 marked and signed in the prescribed mode, which the act declares 
 to be valid as those in the old form. Compliance with the require- 
 ments of that act seems therefore to be an essential condition to 
 the validity of deeds w^-itten by way of book.^^ 
 
 § 706. It is proper, but not essential, that the number of sheets 
 be mentioned in deeds written in the old form of a roll, with the 
 several portions pasted together (/). 
 
 § 707. B — Naming and designing the icriter. — The act 1593, 
 c. 179, required all deeds to make special mention in " the hinder 
 end thereof, before the inserting of the witnesses therein, of the 
 name, surname, and particular remaining place, diocesie, and other 
 denomination of the writer of the body of the foresaid original writs 
 and evidents ; otherwise the same to make na faith in judgment 
 nor outwith in time coming." Although this enactment was suffi- 
 ciently clear and stringent, the Court disregarded it ; and where the 
 WTiter was neither named nor designed, allowed the defect to be 
 supplied by a condescendence and proof {g). This led to the pro- 
 
 (/) See Sclater v. Clyue, 1831, 9 S., 248. {g) See cases in M., 16,859 ; 
 
 16,860; 17,015 ; 17,019 ; 17,020—4 B. Sup., 163— Br. Synop., 2708. 
 
 10 It is thought that a deed cannot receive effect as probative by the law of Scotland, 
 if the number of pages be not mentioned in the testing clause. Where a deed was 
 written on five separate sheets of parchment, and on one side only of -each sheet, and 
 where the testing clause bore that it was " written on this and the four preceding skins 
 of duly stamped parchment," and did not state the number of pages on which it was 
 written, and where each page was not numbered. Lord Cowan (Ordinary) held that, in 
 both particulars, there was a non-compliance with the requirements of the statute, fatal 
 to the validity of the deed as a probative Scotch deed ; and the First Division found 
 that the deed was not " authenticated according to the requirements of the statutes," 
 and was not " probative according to the law of Scotland ;" Earl of Hopetoun v. Scots 
 Mines Co., 2d June 1854, reported 1856, 18 D., 739, 747. See also Thomson v. Mac- 
 Crummcm's Trustees, 1856, 18 D„ 470 ; affirmed and reported under name of Galbraith 
 and Others (MacCrummen's Trustees) v. the Edinburgh and Glasgow Bank, 1859, 31 
 Scot. Jur., 425. The act 19 and 20 Vict., c. 87, abrogating pagination as a solemnity, 
 does not affect the jjrovision of the act 1696, c. 15, or of any other act or acts of Par- 
 liament "as to mentioning in the testing clause the number of pages of which the deed 
 consists." See infra, \ 735, note.
 
 § 708. TESTING CLAUSE. 447 
 
 vision in the act 1081, c. 5, wliicli eiuictcd and declared that "all 
 writ.s tu l)e subscribed hereafter, wherein the writer and witnesses 
 are not desii:;ned, shall be null, and arc not suiipliable by conde- 
 scending upon the writer, or the designation of the writer and wit- 
 nesses." Since the passing of this act the omission to name and 
 design the writer of a deed has repeatedly been laid a nullity, 
 which could not be removed by proof (A)-^^ 
 
 § 708. As the act of 1681 is declaratory as well as enactive, it 
 may be said to have restored to fuU force the i)revious act of 1593, 
 whicli, although it had been disregarded by the Court, was still 
 unrepealed (i). But the full and precise designation required by 
 the older statute has not been exacted. It is enough if the general 
 terms of the act of 1681 be observed, by tlie writer's name and de- 
 signation being set forth in such a manner as to identify him ; and 
 the Court ^\•ill determine in each case whether the designation is 
 sufficient for that purpose (k). Thus deeds have been sustained in 
 which the writer was designed as " notary" (J), and "writer" (m), 
 {i.e., attorney), without the place being specified where he carried 
 on his business. And a deed in the Scotcli form, written and exe- 
 cuted in Dublin, the writer of whicli was designed as " A B, gentle- 
 man," was at first held null, but was afterwards sustained on the 
 ground that it must be presumed he resided in Dublin, in which 
 place " gentleman " was used to designate persons above the rank 
 of traders or manufacturers (w). So a testing clause in the terms 
 " I have subscribed these presents, written by A B at Auchter- 
 house," was held to be efl'ectual (o) ; as was also a deed in which 
 
 {h) Ross V. Ross, 1711, M., 16,867— Macfarlane v. Grieve, 1790, M., 8459, 17.057— 
 Kilpatrick v. Fergusou, 1704, M., 12,061, 17,022— Irvine v. M'Jore, 1710, M., 12,284. 
 In this last case the deed had been copied by an ignorant clerk from another deed 
 which had been written by a different person, and the clerk omitted to substitute his 
 own name for that of the writer of the other deed. (t) This seems to be Mr 
 
 Erskino's view ; see b. 8, 2, § 12. (k) Ersk., 3, 2, 12 — Ciises in following 
 
 notes— and infra, 'i 720. (l) M'Micken v. Kennedy, 1706, M., 16,916. 
 
 (m) Rules v. Craig's Crs., 1712, M., 16,920. (n) Murray v. Semple. 1714. 
 
 M., 16,921, afl"d. on another point, Rob., 282. (o) Duncan v. Scrimzeour, 
 
 1706, M., 16,914. 
 
 " Where a testing clause bore that the first eight pages of a deed were written by 
 W.J., and the remaining ten pages by G.H., and where an essential part of the deed, 
 occurring on page 15, was in fact written by W.J., it was lield that the deed was not 
 probative according to the law of Scotland, though it was argued that the true state of 
 the fact was evident from ocular inspection ; Earl of Ilopetoun v. Scots Mines Co., 
 1854, reported 1856, 18 D., 739, 747.
 
 448 TESTING CLAUSE. § 708- 
 
 the writer was designed as " clerk to the signet," in mistake for 
 " clerk to A B, A\Titer (or clerk) to the signet" {p). On the other 
 hand, a deed, the writer of which was merely described as " waiter 
 hereof," was held null, as omitting his designation entirely (r). 
 And a decree-arbitral, written by the clerk to the submission, was 
 found to be invalid, as not containing the WTiter's name and desig- 
 nation, although these w^ere mentioned narrative in the body of the 
 document w^hich was signed by liim as clerk to the submission (s). 
 And where a testing clause bore that the deed was subscribed at 
 Dashers, " before these witnesses, John Murdoch, officer in Dashers, 
 Hugh Mitchell, shoemaker there, and the said George Leny, wit- 
 ness also to the other marginal note on this page, place, date, and 
 writer foresaid," the deed was held null, although Leny was a pro- 
 fessional writer, and was well known in the place where the deed 
 was executed {f). 
 
 § 709. The act 1593, c. 179, ordains that the waiter be named 
 and designed " before the inserting of the witnesses." The deed, 
 however, is valid although their positions should be transposed (w). 
 And a testament was sustained, the writer of which was mentioned 
 in the body of the deed merely as a witness, but added to his sub- 
 scription "witness and writer hereof" {y). An assignation was 
 sustained in wdiich the writer was not designed in the testing 
 clause, but by the words " and writer hereof," being added to his 
 subscription as a witness. It was also held not to be too late to 
 complete the deed by making this addition, though it had been 
 produced in a process of competition for an ofiice of executor, and 
 the record had been closed, and an interlocutor pronounced, in 
 w^hich it was referred to in its incomplete state. The point, how- 
 ever, was mixed up with a question of homologation {x)}'^ 
 
 (p) Scott V. Dalrymple, 1781, M., 8838. (r) Kennedy v. Oswald, 1710 
 
 (not rep.), noted in Rules v. Craig's Crs., supra. (s) Perry v. Meikle, 25tli 
 
 November 1808, F. C. (t) Lockhart v. Kay, 16th February 1815, F. C. The 
 
 writer was not mentioned in any other place. See also Ross v. Ross, 1711, M., 16,867. 
 
 (m) Ewing V. Scrapie, 1739, M., 1352 ; 5 B. Sup., 211, S. C. (y) Dronnan 
 
 V. Montgomery, 1716, M., 16,869. {z) Macpherson v. Macpherson, 1855, 17 
 
 D., 357. 
 
 12 A settlement by a husband and his wife, conveying heritage, was holograph of the 
 husband except a few lines, which were unimportant, and which were written by the 
 wife. The deed bore to be " written with our own hands " (the number of pages, the 
 date, and the witnesses being mentioned). The Court liold (1) that the deed was holo- 
 graph of the husband; (2) that, in any view, it was duly authenticated, the conveyance 
 of the heritage furnishing a sufficient designation of the wi'iters of the deed ; Laurie r. 
 Laurie, 1859, 21 D., 240.
 
 § 711. TESTING CLAUSE. 447* 
 
 § 710. A (leod partly wiitton and })artly printed is efrcctiuil, 
 provided the person who lillerl in the written jiortions is named and 
 designed (y).^^ 
 
 § 711. The act of 1593 only recjnires the writer of the "hody" 
 of the deed to he mentioned ; whereas the act of 1(J81 speaks of the 
 writer generally, and requires the witnesses to he designed in the 
 " body of the writ." The proper construction of these provisions 
 is that, as the witnesses' names and designations are part of the 
 body of the deed, the writer of the clause which contains them must 
 be named and designed. But it has been repeatedly held that a 
 deed is valid although the writer of the testing clause is not named 
 and designed, i)rovided the writer of the previous part, the " hody," 
 of the deed is i)roperly set forth (z). If, however, the testing clause, 
 besides the res gestae of the authentication, contains part of the 
 substance of the deed, e.g., a consent l)y a person having an interest 
 
 (y) Stirling V. E. Glasgow. 1711, 4 B. Sup., 85G -Spotfs Crs., 1711, M., 1G,8G8— 
 AUardice v. Forbes. 1710, M., ltJ,8G-2. (z) Watson v. Scott, 1G83, M., 16,860 
 
 —Gray v. Scott, 1703, xM., 12,002— White v. Henderson, 1710, M., 16,864— L. Edmon- 
 stone V. L. Woolmet, 1722, M., 16,862, note— Andrews v. Thomson, 183G. 14 S., 58?^- 
 Lindsay v. Giles, 1844, 6 D., 771. 
 
 13 The 34th section of the Titles to Land Act, 21 and 22 Vict., c. 76, " An Act to 
 simplify the forms, and diminish the expense of completing titles to land in Scotland,"' 
 provides that " all deeds, writs, and instruments whatever, mentioned or not mentioned 
 in this act, having a testing clause, may be partly written and partly printed or en- 
 graved ; Provided always, that in the testing clause the date, if any, and the names and 
 designations of the witnesses, and the number of the pages of the deed or instrument, if 
 the number be specified, and the name and designation of the writer of the WTitten por- 
 tions of the body of the deed, writ, or instrument, and of the A\Titten portions of the 
 testing clause, shall be expresseil at length in writing; and such deeds, wiits, and in- 
 struments shall be valid and eflectual in the same manner as if they had been wholly 
 in writing." This provision is repeated in the 20th section of the act 23 and 24 Vict., 
 c. 143, extending the provisions of the Titles to Land Act to lands held by burgage ten- 
 ure. The interpretation clause, section 36 of the act 21 and 22 Vict., c. 76, declares that 
 the word " deed " shall include the various forms of deeds specially mentioned, " and other 
 deeds and decrees by which lands are conveyed, or rights in land are constituted or 
 conveyed ;" " and all codicils, deeds of nomination, decrees of declarator, and other writ- 
 ings bearing reference to conveyances separately granted, and naming or appointing 
 persons to exercise or enjoy the rights or powers conferred by such conveyances, shall 
 be deemed and taken, for the purposes of this act, to be part of the conveyances to which 
 they separately bear reference." And the word " instrument " is declared to include 
 all notarial instruments authorised by the act, and also instruments of sasine. The 
 word " writ " is not defined in the act. There is an analogous clause, section 2, in tiie 
 act 23 and 24 Vict., c. 143. 
 
 VOL. L '2 F
 
 448* TESTING CLAUSE. § 711- 
 
 iu it, tlie ^\^.•itel• of that portion must be iiaiiicd and designed, other- 
 wise it \Yi\l be null («).^* 
 
 § 712. C — Mentioning the fact of subscription. — The testing 
 clause, of course, should state distinctly that the parties signed the 
 deed in presence of the witnesses, at the place and on the day 
 specified ; and -when the execution is notarial, the testing clause 
 should run in the same terms as when the party signs with his own 
 hand, the subscription by the notaries being set forth in their doc- 
 quet {h). 
 
 § 713. But considerable errors in the narrative of the subscrip- 
 tion will be overlooked, if they do not destroy its true meaning. 
 Thus deeds have been sustained which were stated to have been 
 " written," not " subscribed," in presence of the witnesses (c) ; and 
 where the names and designations of the witnesses were inserted 
 without any statement that the deed had been signed before them, 
 each of their subscriptions having the word " witness " added to 
 it {d ). Deeds by two persons have also been held effectual, where 
 the literal meaning of the testing clause was that only one of them 
 subscribed (e). 
 
 § 714. D — Mentioning the date, and place of execution. — The 
 constant practice of conveyancers is to set forth in the testing 
 clause the date of execution ; and this ought always to be done, be- 
 cause it makes the deed effectual as of the date which it bears, un- 
 til that is proved to be false. But mentioning the date is not a 
 statutory requisite ; and therefore it is not indispensible to the 
 
 (a) See Johnstone v. Coldstream, 1843, 5 D., 1297. {b) Bell on Testing 
 
 Clause, 169— Duff Feud. Con., 13. (c) M'lldownie v. Graham, 1712, M., 
 
 16,931— Gordon v. Murray, 1765, M., 16,818— Sinclair v. M'Beath, 1788, Hume D., 
 773— Millers v. Baikie, 1829, 7 S., 444. {d) Uoig v. Ker, 1741, M., 16,900— 
 
 Wemyss v. Hay, 1 S., 47 ; affirmed, 1 W. S., 140. (e) Orr v. Wallace, 1712, 
 
 M., 16,919— Taylor v. Braco, 1748, M., 16,813, Elch., "Writ," No. 21, S. C— Dunbar 
 V. Innes, 1759, M., 11,644. The two first of these cases occurred in regard, to cautionary 
 obligations in which there was rei interventus, although that doctrine is not properly 
 brought out in the reports ; and, in the other case, of Dunbar v. Innes, the Court went 
 ])artly on the circumstance that the deed had been signed in counter-part. See also 
 Ikoomfield v. Young, 1752, M., 16,817 ; infra, § 721. 
 
 ^■* Mortgages and bonds by railway companies, stamped as directed in the act 24 
 and 25 Vict., c. 50, may be assigned by endorsement. The form of testing clause to 
 the endorsement given in the act makes no mention of the writer of it.
 
 § 7ir>. TESTING CI.AUSE. 449 
 
 validity of a deed ( /'). CoiisL'(|Uciitly, when a deed in not dated, a 
 party f'oundin<>- on it as of a eertain date may prove his averment 
 prout dejure (g). And if a deed is misdated through mistake or 
 ^\^t]lout a frau(hdent design, it is good as of its true date, wliicli 
 may be proved l)y extrinsic evidence (h). 
 
 § 715. But it has heen repeatedly held that misdating for a 
 fraudulent or improi)er purpose is fatal to a deed, in so far as it 
 might confer ])eneiit on any person privy to the fraud (*). Mr Tait 
 thinks that " it may deserve consideration how far a deed, admitted 
 or proved to be genuine, ought to be cut down entirely on account 
 of the falsehood of the date, and wliether it might not be sufficient 
 to hold it to ])e of a date the most unfavourable to the party found- 
 ing upon it." Yet even in tliis modified view, as well as in the 
 strict rule followed in the decisions, there seems to bo a want of 
 proj)cr discrimination between the civil and the criminal qualities 
 of the act of misdating. To refuse any effect to a misdated deed, 
 or to attribute to it the date most unfavourable to the party, Avhen 
 that is clearly not its true date, is to decide against the real facts 
 in regard to a matter of civil right and of evidence, on account of 
 considerations of a criminal and penal character ; while so indis- 
 criminate a mode of treating such frauds or misdemeanours might 
 inflict too great punishment in some cases, and too small in others. 
 The correct principle seems to be, that a misdated deed should be 
 received as of its real date, and that the question whether any, and 
 
 (/) Wemyss v. Hay, 1821, 1 S., 47; affirmed, 1 W'. S., 140— Grunt v. Grant, 1662, 
 M., 11,497— Bayne v. Caivie, 1G73, M., 11,540— Elphinstono v. L. Granstoun. 1682. 2 
 B. Sup., 12— and cases in M., 16,896; 16,925, et seq.; 16,970. 
 
 {g) Tait Ev.. 138— Fletcher, 1681. 2 B. Sup., 7— Hamilton v. Sinclair, 1G21, M., 
 16,925 — Thornton v. Milne, 1605, M., 12,277. So where marginal additions are not 
 specified in the testing clause, they must be proved to liave been signed the same day 
 as the deed, if their eftcct depends on their dates ; L. Durie v. Gibson, 1667, M., 16,927 
 — Johnstone v. Johnstone, 1088, M., 17,003. {h) Arnot v. Gairden, 1730, M.. 
 
 12,285— L. May v. Ross, 1667, M., 12,279— Yeats v. Yeats' Tr.. 1833, 11 S., 915— 
 Campbell i\ Fisher, 1838, 16 S., 1279— Winram v. Anderson, 1629, M., 6749. See also 
 Simpson v. Arclibishop of St Andrews, 1083, 2 B. Sup., 44. 
 
 (t) So held where a deed had been antedated to defeat the plea of deathbed; Mnry 
 V. Howit', 1801 ; atBrmcd 1806. M., " Writ." App., No. 3; — and to defeat an inhibition ; 
 Edmiston v. Simc, 1636, M., 17,062; — and to give an undue preference to an assigna- 
 tion, M'Math V. Oliphant, 1674, M., 12,665 ; 3 B. Sup., 36, S. C— Home v. Brown, 1672, 
 2 B. Sup.. 685— See also Keith v. Robertson, 1626, M., 12,271. But see M'Kenzie v. 
 Fraser, 1743, P^lch., " W^rit," No. 16, where a bill granted in March 1716, but dated 
 August 1715. to avoid the objection that the granter was in rebellion at its date, was 
 sustained on proof of onerosity. It seems to have been challenged by the granter ; but 
 the report is not clear on tliat point. 
 
 2 f2
 
 450 TESTING CLAUSE. § M 0- 
 
 Avliat, penalty should be inflicted ibr the wrongful act, ought to be 
 matter of separate investigation. This, moreover, is the only way 
 in wliich the fine to be imposed for the fraud would be secured to 
 the lisk, instead of going to a private person, who has no just right 
 to it. 
 
 § 716. A third party not implicated in the fraud would, of 
 course, be entitled to use a misdated deed as of its true date. 
 
 § 717. A deed executed on Sunday is valid (k). 
 
 § 718. The place where the deed is executed is generally men- 
 tioned in the testing clause. This is often of great use in questions 
 of authenticity ; but, not being a statutory requisite, it is not indis- 
 pensible (1). 
 
 § 719. E — Mentioning the names and designations of the ivit- 
 nesses. — The insertion of the designations of the witnesses was first 
 required by the act 1579, c. 80 ; which enjoined that notarial sub- 
 scription for persons who could not write should be " before four 
 famous mtnesses, denominate be their special dwelling places, or 
 sum uther evident tokens, that the witnesses may be knawen, being 
 present at that time, otherwise the sadis writs to make na faith " (m). 
 The sanction of this act was enforced in cases of notarial subscrip- 
 tion (n), to which the act was limited (o). But in subscription by 
 the parties themselves the names and designations of the witnesses, 
 if omitted, were allowed to be supplied by a condescendence and 
 proof (p), until the act 1681, c. 5, enacted and declared that all 
 writs to be subscribed by any party after its date, " wherein the 
 WTiter and witnesses are not designed, shall be null, and are not 
 suppliable by condescending upon the writer, or the designation of 
 the writer and witnesses " (r). 
 
 § 720. Under this statute the Court have repeatedly held deeds 
 null, in which the witnesses were either not designed at all, or were 
 
 (k) Duncan v. Bruce, 1684, M., 15,003-Yeats v. Yeats' Tr., 1833, 11 S., 915— Elliot 
 V. Faulke, 1844, 6 D., 411. (l) Vallance v. M'Douall, 1709, M., 16,930— 
 
 Ogilvie V. Baillie, 1711, M., 16,896; 16,930. S. C— Wemyas v. Hay, 1821, 1 S., 47 : 
 affirmed, 1 W. S., 140. (m) See the act quoted at length, sitpra, g 639. 
 
 (n) Sherriff f. Henderson, 1623, M., 16,877— Low v. Beatson, 1738, M., 16,899; 
 17,032. (o) Erskine (b. iii, t. 2, ? 11) considers that the plain intendment of 
 
 Ihe act 1579, was that the witness should he designed where tlie party signed with his 
 own hand, and that the words of the act admit of that construction. This, however, 
 may well be questioned— See 1 Koss Lee, 128. (p) Ersk., 3, 2, 11 : 3. 2, 19 
 
 — 1 Tloss Lee, 129. (r) See the act quoted supra, ? 642.
 
 § 721. TESTING CLAiSK. 451 
 
 (Icsigiicd erroneously (.v). What is a sunieient designation is not 
 nu'iitioned in the statute. It ought evidently to Le such a descrip- 
 fidii 111' thu witness' business (it" he has any), and residence, as pro- 
 perly identities him. But the Court have sustained much more 
 meagre designations, and have- eked them out hy inferences whieli, 
 perhaps, are hardly warranted by the terms of the statute. Thus 
 the designations " I\Ierchant," and " Chirurgeon " (t), and "Doctor 
 of IMcdicine" («), have been lieM sufficient ; the Court presuming 
 that the witnesses fcdhiwcd their resi)ective callings in the place 
 where the deed was signed. So the designation " AVriter" has been 
 sustained, on the supposition that it was usimI in its common signifi- 
 cation of law-agent, and that the witn(;ss folhnved that avocation in 
 the place where the authentication took place (x). But " Esquire" 
 has been held not to be sufficient (?/). A disposition w^as sustained 
 where one of the witnesses was described as " Robert RoUo, in- 
 dweller in Edinburgh " ; the party, however, l»eing ordained to 
 " condescend and design him " more specially (2). As the name 
 was unusual, there would be little difficulty in discovering the wit- 
 ness in this case. But a similar designation with a common name, 
 such as "John Smith" or "James Campbell," would not suffice ; 
 and the designation " indweller in London" would be inadequate, 
 unless the witness was a well-known person, as, for example, 
 Thomas Babington Macaulay, or Charles Dickens.^^ 
 
 § 721. Deeds have been sustained where the designations of 
 both wdtuesses were merely " in Inverasragan (a), and " at Auchter- 
 house" (6), without any connecting words ; the Court holding that 
 the witnesses were meant to be described as residing in the places 
 named. So a testing clause which bore that the deed was signed 
 " before these witnesses, the said Thomas jamiesou, writer hereof, 
 and Alexander Jamieson, at Leckie," was construed as meaning 
 that both witnesses resided at that place ; although it was pleaded 
 
 (s) Besides the cases in the following notes, see those as to the designation of the 
 writer of the deed, supra, {J 708. (t) Reid v. Brown, 27th June 1700 (not 
 
 rep.), noted in llulcs v. Craig's Crs., 1712, M., 16,920. («) Innes i-. Inncs" 
 
 Trs., 1800, Hume D., 911. (x) Rules v. Craig's Crs., supra. 
 
 {y) Humbie v. Humbie, 173G, Elch., "Writ," No. 3. {z) Grant r. Ki.ir, 
 
 1(398, M., l(i,913— See also Baillie v. Somervcl, 1672, M., 16,913. 
 
 (a) Wallace 1;. Campbell, 1749, M., 16,900. (6) Duncan v. Scriniztoiir. 
 
 170t). M.. 16.914. 
 
 1-^ '-Tlie proper designation of any person is a statement of his present oci-upatit>n 
 lud residence " : Lord Justice-Cli'rk (Tnglis) in -loel r. Gill, 1859. 22 D.. p. 12.
 
 452 TESTING CLAUSE. § "21- 
 
 uot uuiairly, tluit the proper designation of Thomas Jainieson (who 
 was not mentioned in a previous part of the deed) had been omit- 
 ted (c). But where the witnesses were described as " Gilbert Elliot, 
 inserter of the sum, and Archibald Nelson, servitor to the laird of 
 Cavers," the deed was held null ; and the Court refused to read 
 " servitors" in place of " servitor," which was the proper designation 
 of both witnesses (d). In another case, where the deed bore to 
 have been signed " before these witness, Eobert Brown in Ednam 
 and John Fish in Castlelaw, writer hereof, and witness to the mar- 
 ginal notes also," the objection that there was only one witness to 
 the marginal notes was repelled, because the writer of the deed had 
 used "witness" in the plural number in a previous part of the 
 clause, and there could be no doubt that he meant to include both 
 of the witnesses when he repeated the term (e). In a recent case 
 a deed was sustained which bore to have been " written by Thomas 
 M'Glashan, apprentice to James Carstairs and Son, town-clerks of 
 Cupar, subscribed before and in presence of the said James Car- 
 stairs, Junior," (whose name did not occur before) ; the Court pre- 
 suming that he was the junior partner of the house (/). 
 
 Where one of the witnesses to a bond was designed '* brother 
 german," in mistake for "brother in law," of a person properly 
 named and designed, the deed was held null, although there could 
 be no doubt that constabat de persona (g). 
 
 § 722. With regard to the names of the witnesses, it will be ob- 
 served that the acts 1579, c. 80, and 1681, c. 5, do not expressly 
 require these to be inserted ; in which respect they differ from the 
 act 1593, c. 179, which ordains the "name, surname, and particular 
 remaining place," &c., of the writer to be mentioned. The reason 
 for this distinction may perhaps have been, that as tlie witnesses' 
 names appeared in their subscriptions, their identification would be 
 complete, if only their designations were mentioned in the testing 
 clause ; whereas the writer of the deed could not be identified un- 
 less both his name and designation were set forth. But whether 
 the omission in the acts 1579 and 1681 arose from design or from 
 oversight, it is thought that a deed would be valid in which the 
 witnesses were designed, but not named; e.g., where the testing 
 clause bore that the deed was signed " before the witnesses sub- 
 
 (c) Jameson v. Sheriff, 1708, M.. ir,,mr,. (d) Halden v. Ker, 1714, M.. 
 
 10,924, affd., Cr. and St.. r,l. (f) Broonilicld r. Young, 1752, M., 16,817. 
 
 (/) Donaldson v. Stewart, 1842. 4 D.. 1215. (ff) Graham's Crs. r. 
 
 Gricrson, 1752, M.. 16,002.
 
 I 724. TESTING CLAUSE. 453 
 
 scribing, who arc both writers U> tlie signet in Kilinburgh." As, 
 liowevcr, this view has not received the sarictiun ol" tlic Court, ami 
 as the universal practice is to mention both the names and the 
 designations of the witnesses, that ought always to be done (/<)• 
 
 § 723. If tlic names of the witnesses are mentioned, a material 
 error in stating them is fatal to the deed ; whereas slighter inaccu- 
 racies are overlooked, si constat de persona. Thus, on the one hand, 
 where the christian name of one of the witnesses to a deed was 
 stated as " Thomas " in place of " Francis," and in another c^e 
 where he was named " John " instead of " Robert," the deed fell, 
 although the designation pointed out who had been intended (h)* ; 
 and a similar result followed where a witness signing '' Thoma.s 
 Hill" was described as "Thomas Hillock," the name by which he 
 was familiarly known, and by which he had formerly been accus- 
 tomed to subscribe {i). On the other hand, a deed was sustained 
 where one of the witnesses, who signed " Wm. C. Davys," was 
 mentioned in the testing clause as " Major W. C. Davis of Colonel 
 French's Levy " (J) ; and an instrument of sasine in the old form was 
 held valid under the act 1681, c. 5, where the Avitnesses subscribing 
 as " William Moir" and "Alexander Garrock" were mentioned in 
 the testing clause as "William Moor" and Alexander Garvock," 
 their designations being correct (A-). This decision goes far, as the 
 names inserted in the deed were not different modes of spelling 
 those of the witnesses, but were really different names. 
 
 § 724. F — Blentioning marginal additions, erasures, etc. — An 
 important use of the testing clause is to mention the marginal ad- 
 ditions, erasures, deletions, or other blemishes (if there be any), on 
 the integrity of the writing (l). These ought to be specified clearly 
 and minutely. If there are marginal additions, the testing clause 
 ought to state the pages on which they respectively occur, and that 
 they were signed by the parties before the witnesses w^ho attest the 
 deed. In mentioning words written on erasure, some conveyancers 
 are accustomed merely to state their number and the lines of the 
 pages where they appear. But this is a loose and dangerous prac- 
 
 (/() In Morton v. Hunter & Co., 1828, 7 S., 17'2 ; allVl., 4 AV. S.. 379, an erasure in 
 the christian name of a witnes.s was held not to be a nullity under the act 1G81, c. 5. 
 
 (/»*) Douglas, Heron, & Co. v. Clark. 1787. M.. 1G,908— Abereronihy r. Innes, 1717. 
 M., 17.0'2'2. (0 Archibald v. Marsli;dl. 1787. M., It5.',t07 ; Hailes, 1035, S. C. 
 
 This decision may be questioned. (J) Dicksons v. (ioodall, 1820, Hume D.. 02".. 
 
 {k) Stewart v. Stewart, 2d March 1815, F. C. (/) Ersk., 3. 2. 20— Ib-.'s I.e.-., 
 
 143— Duff Fond. Con.. 22— Tait Ev., 75.
 
 454 TESTING CLAUSE. § 724- 
 
 tice, as it would be easy to erase the words so mentioned, and to 
 substitute for them others of the same number but materially 
 different in meaning, without the testing clause furnishing mate- 
 rials for detecting the fraud. The only safe course, therefore, is to 
 repeat in that clause the words Avhich have been written on erasure, 
 mentioning the places in the deed where they occur, and stating 
 that they were so written before the deed was subscribed. If any 
 words are deleted they should be specified in the same way. 
 
 •^ § 725. When the testing clause mentions the alterations dis- 
 tinctly, in the mode above mentioned, the deed is probative in its 
 altered state, and any one who alleges that the alterations were 
 made after subscription or for a wrongful purpose, must bear the 
 burden of proving that averment. 
 
 How far deeds containing erasures or marginal additions will be 
 sustained, where the testing clause does not comply with these re- 
 quisites, is considered afterwards (m). 
 
 § 726. G — 0/ completing the testing clause. — According to strict 
 principle the testing clause of a deed ought to be completed either 
 before its authentication, or immediately afterwards, in presence of 
 the parties and witnesses subscribing (ii). But this rule could not 
 be followed in practice without causing great inconvenience ; as 
 many deeds are executed at a distance from the conveyancer's place 
 of business, and when neither the writer of the deed nor any other 
 competent person is at hand to complete it. The practice therefore 
 is to leave a blank for the date and place of execution, and the 
 names and designations of the witnesses, and to insert these j)ar- 
 ticulars as soon as can conveniently be done after execution. The 
 difficulty of defining any precise time within which the testing 
 clause may be completed, and the absence of any statutory rule on 
 the point, have led to considerable laxity both in the practice of 
 conveyancers, and in the decisions of the Court, in this class of cases. 
 An assignation was sustained in which the writer was not designed 
 in the testing clause, but by the words " and writer hereof" being- 
 added to his subscription as a witness. It was also held not to be 
 too late to complete the deed by making this addition though it 
 
 (m) See infra, g 731, and chapter on vitiations in writings, Part ii, b. i, 1. 1, c. 6. 
 
 {«) Every deed involves an anachronism ; because where the testing clause is com- 
 pleted before the execution, it narrates as past what has still to take place ; while, on 
 tlic other hand, if the &ubscri];)tion and attestation are adhibited before completing the 
 deed, they give probative effect to the nanative which is afterwards inserted above them, 
 itiid with the terms of wliich the parties and witnesses are seldom made acquainted.
 
 § "21. TESTING CLAUSE. 455 
 
 liuJ l)ccu proJiicoil in u pruccss ul' coinputitiuu lor uu office of exe- 
 cutor, and the record had been closed, and an interlocutor pro- 
 iiniiiiced ill which it was referred to in its incomplete state. The 
 [luiiit, however, was mixed u}) with a question of homologation (»*). 
 § 727. Tlie only limit which has yet been prescribed on the 
 point is, that the testing clause may not be completed after the 
 party has raised action or execution upon the deed, or has placed 
 it beyond his control in a public register (o). Thus a marriage- 
 eontract was sustained, although tlie testing clause had not been 
 completed until after both the spouses had died, and until eleven 
 years after the date of tlie deed (p). Thus, also, a deed of ratifi- 
 cation, the testing clause of ^vlIich was filled u}) alter an iiit<TVal 
 of thirty-two years, was held efi'ectual (r). In another case the 
 testing clause of a cash credit bond had been inserted immediately 
 upon subscription ; but after the deed had been for a considerable 
 time in the custody of the creditor, and after the principal debtor 
 had become bankrupt, it was observed tliat the name of one of tlie 
 witnesses had been engrossed erroneously ; whereupon an addi- 
 tion was made to the testing clause in the following terms — " I say 
 Robert Dickson, his servant, the word ' Gibson ' being a cliiro- 
 graphical error of the writer in filling up the last line of the testing 
 clause ; all written by the said James Fraser," who had written the 
 body of the deed. It was strongly pleaded that such an alteration 
 on a completed deed could not be made ex intervallo. But the 
 Court unanimously repelled the objection on the ground that the 
 testing clause might be completed, or errors in it corrected, any 
 time before producing the deed in judgment (s). Again, w'here a 
 deed, in which the name of one of the witnesses appeared as Cram- 
 mo>-d, had been given in for registration in the books of Council 
 and Session, had been entered in the minute book, and an extract 
 of it had been issued, as if it had been recorded ; but where before 
 it hail lieen actually engrossed in the register, the pcirty borrowed 
 it up in terms of the act 1685, c. 38, within six months of present- 
 ment, and added a clause mentioning that the name of the witness 
 was Crammowd, and where it was pleaded that the deed could not 
 
 (n*) Macphersou v. Macpherson, 1855. 17 1).. 357. (o) Bells Pr.. g 222G — 
 
 More's Notes, 406— Tail Ev., 104— Uuff Feud. Con., 19. S.e Diiry v. Dury, 1758, M., 
 10,936 ; Elch., " AVrit," No. 27, S. C, supra, 'i 656, as to a deed in which the testing 
 clause was crowded in above, and wus partly below the signatures. 
 
 [p) Dick's Tr. v. Dick, 1798, Hume D., 908. This case was not decided on the 
 ground of the rei intervenius arising from the marriage. (/•) Blair v. Stewart, 
 
 1827, 6 S., 51. («) Bank of Scotland v. Tclfer's Crs., 1790, M.. 16.909.
 
 4o6 TESTING CLAUSE. § 7'27- 
 
 be so altered after having bceu given in fur registration, and after 
 the granter's death, — tlie Court of Session and the House of Lords 
 repelled the objection (/). The reason was, that the deed had not 
 been beyond the party's control when it was borrowed up and cor- 
 rected. On the converse of this principle, the testing clause of a 
 deed cannot be completed or altered after it has been presented for 
 registration in the books of a Sheriff Court ; as there is no corre- 
 sponding power to borrow up deeds from these records (u). 
 
 The case where the Court seem to have gone farthest in sus- 
 taining deeds completed ex intervallo, was one in which they re- 
 pelled the objection to an instrument of sasine, that it proceeded 
 on a disposition, the testing clause of which was not completed 
 until some time after the sasine had been expede {x). The ground 
 of judgment, as appearing in the note of the Lord Ordinary (Mon- 
 creiff), was, that both the disposition and the instrument being for- 
 mal ex facie, they could not be challenged in the hands of a third 
 party on the ground of such a latent objection, which did not infer 
 fraud ; that the delivery of the deed was a warrant to the grantee 
 to complete the testing clause ; and that when a deed contains a 
 formal testing clause it must be presumed juris et de jure to have 
 been completed at the proper date {y)}^ 
 
 § 728. But while these cases show that the completion of the 
 testing clause ex intervallo is not incompetent, such an irregularity 
 ought in all cases to be avoided, and has been disapproved of in the 
 House of Lords (2). Nor can it be doubted that if a deed was im- 
 pugned on the ground that erasures or additions mentioned in the 
 testing clause had been made after subscription, the circumstance 
 that that part of the deed had been filled in at a considerable in- 
 terval, and out of the presence of the granter of the deed, would be 
 materially injurious to its validity (a). It will also be a proper 
 
 {t) Macleod v. Cunningliame, 1841, 3 D., 1288; affd., 5 Bell's Ap. Ca., 210. Both 
 the Court of Session and House of Lords were influenced by a report upon the practice 
 in the register olEce. (m) Brown v. Rankine, 11th March 1809, F. C. — Barclay 
 
 V. Brown, 1811, Hume D., 928. {x) Leith Bank v. Walker's Tr., 1836, 14 S., 
 
 332. {y) See also per L. Just.-Clerk in Johnstone v. Coldstream, 1843, 5 D., 
 
 1305— Shaw v. Shaw, 1851, 13 D., 877. [z) Per L. Brougham in Redder v. 
 
 Reid, 1840, 1 Rob. Ap., 183. (a) See Boswell v. Boswell, 1852, 14 D., 386, per 
 
 1" In a recent case, it was held that a transfer of shares of stock was sufficiently ten- 
 dered though the testing clause was not filled up ; and it was observed, in conformity 
 with the law in the text, tliat a party who subscribed a deed, leaving a blank for the 
 testing clause, and delivered it, gave a mandate to fill up the testing clause ; Rait v. 
 Primrose, 1859, 21 1)., 965. But see M'Neille v. Cowie, infra, note i', where it was 
 averred that no blank had been left fen- the testing clause.
 
 §731. TESTING CLAUSE. k') < 
 
 subject for inquiry regarding a deed coniidcted alter a long interval, 
 whether there were sullieient materials for filling it up in accord- 
 ance with tlie facts. 
 
 § 729. It is irrelevant to challenge a signed and completed deed 
 on the ground that tlic parties intended it should remain blank in 
 the testing clause and inqjrobative (l)).^'' 
 
 XITT. Of the Authentication of Manjinal AchUtions and 
 Tnterlhieations. 
 
 § I'M). When any addition requires to be made to a deed before 
 subscription, it ought to be written on the margin and signed by 
 the party with his name divided on each side of it; and it ouglit 
 also to l)e mentioned in the testing clause, in the mode described 
 in a previous section. Some conveyancers also require the instru- 
 mentary witnesses to sign such additions {<■) ; a precaution wliirli 
 certainly increases their proliative value, although it is neither rc- 
 cpiired l)y statute nor adopted in general practice. As there is no 
 statutory rule for the authentication of marginal additions, inter- 
 lineations, and the like, there is some doubt as to the consequence 
 of omitting any of the customary safeguards for their genuineness. 
 
 § 731. The party's signature, or at least his initials, to marginal 
 additions seem to be indispensible, even where they are mentioned 
 in the testing clause ; because such detached words are not authen- 
 ticated by merely subscribing the page, nor does the mention of 
 them in the testing clause suffice to import them into the deed ((/). 
 
 L. Just.-Clerk Hope. (6) Shaw i;. Shaw, supra. (c) See Duflf Feud. 
 
 Con., 22. This seems sometimes to have been considered necessary unless there had 
 been homologation, or the deed had been signed in counter-part ; see Bruce v. Bnice, 
 1770, M., 10,805; affirmed, 2 Pat., 258— Boswal v. Boswal, 1708, M., 17,025— A B, 
 1752, 5 B. Sup., 803. (d) See 1 Ross Lee, 143— Duff Feud. Con., 22— Miller 
 
 V. Lambert, 1848, 10 1).. 14 1'J— Carnegie v. Kamsay, 17%. 4 B. Sup.. 242— Bruce r. 
 Stewart, 1C06, 2 ib., 427. 
 
 17 The decision in the case of Shaw v. Shaw lias been doubted, and is not reconcile- 
 able with the case of M'Neille v. Cowie, where, when a pursuer averred that he had 
 sent to the defender a signed offer for a lease, which he afterwards withdrew, and that 
 after he had withdrawn it, the defender wrote a testing clause between the end of the 
 document and the pursuer's signature— tlic Court allowed him an issue, ^V^lether the 
 document was delivered as a ("oniplcted document to tlie defender before the testing 
 clause wiis added? and Wliether the defender, without the knowledge of the pursuer, 
 wrongfully added to the testing clause the words in .ju-'stion? M'Neille v. Cowie, 1858. 
 20 I)., 122'.t : 30 Scot. .lur.. 727.
 
 458 TESTING CLAUSE. §731- 
 
 But wlieu deeds are signed in counter-part, a marginal addition on 
 one of the duplicates, although unsigned, will be hinding on the 
 party who produces that copy (e) ; whereas it w^ill not he sustained 
 iu his favour (/). An addition holograph of the granter of the deed 
 is binding, although unsubscribed (g). In one case a bond, whicli 
 from its whole scope and tenor had evidently been meant to provide 
 an annuity of 300 merks, was sustained to that extent, although 
 the word "yearly" occurred only on the margin, and was not 
 signed (Ji). 
 
 § 732. It is not essential for the testing clause to mention that 
 the marginal addition was signed by the party or before the instru- 
 mentary witnesses ; the general statement as to the execution ap- 
 plying to it, as well as to the body of the deed (/). And for the 
 same reason, it is not indispensible to mention who is the w^riter of 
 the addition (k). But if ocular inspection shows that it was not 
 written by the writer of the body of the deed, it will fall, unless 
 it is holograph, or the writer of it is named (I). It was once held 
 that a marginal addition, signed by notaries along with the rest of 
 a deed by a person who could not write, was not binding, because 
 their authority to sign it w^as not set forth (m). But this decision 
 may be questioned, as the general statement of authority seems to 
 cover the subscription of these as well as the main part of the 
 deed (n). 
 
 § 733. It has been held tliat a marginal addition, whether holo- 
 graph or signed by the party, is not probative of its date, unless it 
 is mentioned in the testing clause or signed by the instrumentary 
 witnesses (o). 
 
 § 734. These remarks apply also to interlineations ; wdiich are 
 effectual when signed by the party, and mentioned in the testing 
 
 («) Stair, 4, 42, 19 (3)— Ersk., 3, 2, 20— Smith v. D. Gordon, 1701, M., 16,987— 
 Boswal V. Boswal, 1708, M., 17,025. (/) Stair, siqjra — Ersk., supra. 
 
 {g) See Bruce v. Stewart, supra — Horsburgh v. Horsburgh, 1848, 10 D., 824. 
 
 (A) Stewart v. Bruce, 1666, 1 B. Sup., 529. (?) Cuming v. Aberdeen Pres- 
 
 bytery, 1721, Rob. Ap. Ca., 364— Spottiswood v. Prestougrange's Crs., 1741, M., 16,811; 
 5 B. Sup., 709, S. C— King v. Greenock Bank, 1836, 14 S., 351— See also Bruce v. 
 Bruce, 1770, M., 10,805; affirmed, 2 Pat., 258— Broomfield v. Young, 1752, M., 16,817, 
 noted supra, \ 721. [k) Cuming v. Aberdeen Presbytery, supjra — Spottiswood v. 
 
 Prcstongrange's Crs., supra. (I) See L. Durie v. Gibson, 1667, M., 16,927. 
 
 (m) El^ots V. Riddle, 1695, M., 16,838. (w) See sw/jra, notes (i), (k). 
 
 (o) L. Duric v. Gibson, 1667, M., 16,927— Johnstone v. Johnstone, 1688, M., 17,063. 
 Lord Stair thinks it doubtful whether tlie marginal addition, oven when signed by both 
 the party and the witnesses, will be held as of the date of the deed, if it is not men- 
 tioned in the testing clause; Stair, 4, 42, 19 (3).
 
 § 735. TP:sTiNf; clause. 459 
 
 clause, but are suliject tu the same objt'ctions as marginal a.lditious, 
 when either oH these formalities is omitted. 
 
 XTV. 0/ Marking cnch Page of the Deed with its Number. 
 
 § 735. The act IGIJG, c. 15, requires that the pages of deeds 
 written bookwise be " marked mth the numbers first, second, &c. ;" 
 and this direction is followed in practice by marking the top of each 
 page with its number in words. But deeds have been sustained 
 where the numbers were only in figures (^9 ) ; and where the num- 
 bers of some of tlie pages were written in woids uu erasures, the 
 pages being undoubtedly continuous, as shown by the catchwords, 
 and the number of them being properly mentioned in the testing 
 clause (r). From this decision it would seem that the omission to 
 number the pages would not be visited with nullity, provided their 
 continuity and genuineness were unipiestional)le (s). Their num- 
 ber does not require to be mentioned in deeds which extend over 
 only one sheet, although consisting of several pages (f)}^ 
 
 (p) E. Cassilis' Tr. v. Kennedy, 1831, 9 S., CG3. (r) \Voocl v. Ker, 1838, 1 
 
 D., 14. (s) See supra, §§ 704, 5. (<) See supra, U 659, 704. 
 
 18 The case of Wood v. Ker hardly warrants the inference in the text. But this is of 
 little consequence, as it is now unnecessary to page deeds in any way. In a recent case, 
 Lord Cowan held that an unpaged deed, if held to be a Scotch deed, was iinprobative 
 and null ; the number of pages was, besides, stated erroneously in the testing clause ; 
 and the First Division found that the deed had not been executed in conformity with 
 the statutory solemnities, and could not receive effect as a deed probative by the law of 
 Scotland ; Earl of Hopetoun v. Scots Mines Co., 2d June 1854 ; reported 1856, 18 D., 
 739. In Thomson v. MacCrummen's Trustees a deed written on seven pages was re- 
 duced as not authenticated because the pages were not numbered, although their num- 
 ber was stated correctly in the testing clause, and at the bottom of each page there was 
 a catchword. The House of Lords held that the provisions of the statute were impera- 
 tive, and affirmed the judgment ; Thomson v. MacCrummen's Trustees, 1856, 18 D., 
 470; affirmed and reported under the name of Galbraith and others (MacCrummen's 
 Trustees) v. the Edinburgh and Glasgow Bank, 1859, 31 Scot. Jur., 425. 
 
 But after the judgment in that case in the Court of Session, and before the judg- 
 ment in the House of Lords, the act 19 and 20 Vict., c. 89, was passed, providing that 
 after 1st September 1856 it shall not be competent to challenge any deed on the 
 ground that the pages are not marked by numbers ; the act proNades that it shall not 
 be construed " to affect any question which may have been in dependence in any Court 
 prior to the passing of this act, or any judgment already pronounced, or any decree 
 which has already gone out, or the provision of the said recited act (1696, c. 16), or of 
 any other act or acts of Parliament as to mentioning in the testing clause the number 
 of the pages of which the deed consists, or the provision as to signing each page of the 
 deed, or any other provision of the said recited act."
 
 460 RATIFICATION OF DEEDS § 736- 
 
 XV Of Ratification of Deeds hy Married Women. 
 
 § 736. In olden times much inconvenience arose from deeds by 
 married women, although granted to third parties and for onerous 
 causes, being reducible on slight proof of marital influence. To 
 remedy this evil it became the practice to get wives to ratify their 
 deeds on oath before a judge, and out of the presence of their hus- 
 bands. This proceeding received the authority of the legislature 
 in the act 1481, c. 83 ; which, adopting a decision of the Lords of 
 Council, enacted that " ane woman conjunct fear, makand faith 
 (swearing) that scho sail never cum against the alienation thereof, 
 sail nocht be hearde afterwards to impugne the said alienation." 
 There is, however, no statute which enjoins judicial ratification, as 
 a solemuit}'- in deeds by married woman {u). 
 
 § 737 The ratification used to be emitted before a judge in 
 open Court. It now takes place in presence of any magistrate or 
 justice of peace at his private residence (x); the wife appearing be- 
 fore him, along witli a notary and two witnesses, and emitting a 
 solemn oath and declaration that the deed is subscribed by her 
 voluntarily, and that she will not challenge or impugn it {y). In 
 Erskine's time it was becoming the practice to use the wife's de- 
 claration, instead of her oath ; but that learned author doubts the 
 sufficiency of such ratifications (2). They would probably not be 
 sustained, unless emitted by persons having right by statute to ofi'er 
 declarations instead of oaths. 
 
 § 738. The procedure is usually recorded in a notarial instru- 
 ment («); Avhich is indorsed on the deed, and is signed by the wife, 
 the magistrate and notary, and two witnesses. But some convey- 
 ancers dispense with the attendance of a notary, and use simply a 
 narrative of the ratification, signed by the wife, the magistrate and 
 the witnesses (h). If the husband was present, the ratification is 
 null; as it is presumed to have been emitted under his influence (c). 
 
 (m) The subject of these sections is fully treated hy Mr Fraser in 1 Pers. and Dom. 
 liel., 4C3, et seq. {x) Ersk., 1, 6, 33—1 Fraser, 433— Duff Feud. Con., 188. 
 
 Being an act of voluntary jurisdiction, the ratification may take place before a judge or 
 magistrate within whose territory none of the parties reside. Ersk., ib. ; Fraser, ib. ; 
 Wallace, 219. (y; It was supposed that the oath had been abolished by the 
 
 general words of the act 5 and 6 Will. IV, c. 62. But the act 6 and 7 Will. IV, c. 43, 
 declares that the ratification should proceed on oath as formerly. [z] Ersk., 
 
 mpra. (a) Ersk., 1, G, 34— Duff Feud. Con., 188. (h) 1 Fraser, 434. 
 
 (c) Ersk.. .w;;m— Bank., 1, -5, 7G— Mack. Inst., 1, 6, 14 (vol. ii, 287)— 1 Fraser, 434.
 
 § 741. 15Y MAKHIKI) WOMEN. 4(31 
 
 Nuy more, it seems to l»e essential to tlio validity of the ratification 
 tliat liis al)sence be set forth (d). 
 
 § I'Si). The ratification, being a formal ministerial act, cannot 
 be proved by i>arole (e). It is incomplete ^vithout the signature of 
 the wife, or of two notaries subscribing for her if she cannot 
 write (/). 
 
 § 740. As this ceremony is not enjoined by statute, it is not 
 essential to the validity of a deed granted by a married woman. 
 Its purpose is not to authenticate the subscription, but to prove 
 that the deed, admitted to be genuine, was not extorted from the 
 granter by force or fear of her liusband. Accordingly, a deed which 
 wants this solemnity is valid, until reduced by the wife on the 
 ground that her husband coerced her to gTant it; and the want of 
 the ratification is only a circumstance, although a highly important 
 one, tending to prove coercion ((/). Professor Boll is therefore in 
 error, when he states that deeds by a wife "are presumed to pro- 
 ceed from her husband's undue influence, the i)re.^umption being 
 counteracted by her judicial ratification" (Ji). 
 
 In an action by a mother against her son for proving the tenor 
 of a deed executed by her during her husband's life, the facts of 
 her having the deed cancelled in her hands, and not ha^'ing• ratified 
 it, were held to raise a presumption that she had cancelled it her- 
 self (t). 
 
 § 741. On the other hand, a deed which has been formally 
 ratified cannot be challenged on the ground that the granter was 
 coerced by her husband into signing it ; and therefore an action of 
 reduction on that head would be dismissed as irrelevant (k). But 
 if the wife averred that the ratification, as well as the deed, was 
 
 ((f) Ersk., supra— FraseT, mpra. (e) Mitchelson v. Mowbray, 1635, M., 5960; 
 
 6073 ; 1 B. Sup., 354, 357 ; S. C— Swintou v. Brown, 1G68, M., 3412 ; 8408 ; S. C. 
 —1 Eraser, 434. (/) Bell v. Mow, 1630, M., 12,526— Gordon v. Maxwell, 
 
 1678. M., 12,533. Authorities iu preceding note. But see Arnot r. Scott, 1673, M., 
 6091. {g) Buohan v. Risk, 1334, 12 S., 511— Hepburn v. Nasm>-th, 1613, M., 
 
 6069 — Stuart v. Hutchison, 1681, M., 77G2 — lolmstone v. Napier, 1708. M., 16,511— 
 Hay V. Cuniming, 1706. M., 16,506 — Smith v. M'Kcand, 4th Juno 1835. 7 Se. Jur., 
 397— Ersk., 1, 6, 36— Bankt.. 1, 5, 76—1 Bell's Com., 143, nutc 1—1 Eraser, 435— Duff 
 Feud. Con., 189. In Maedougall Brisbane, 1st March 1850, 12 D., 917. the Court autho- 
 rised an instrument of disentail by a married woman to be judicially ratified ob majorem 
 cautelam; but were of opinion that the proceeding was unnecessary, as the estate was to 
 be acquired by her in fee-simple, and not by a third person, or in any degree by her 
 husband. (A) Bell's Pr., § 1615. (t) Houston v. Schaw, 1711, Rob. Ap. 
 
 Ca., 561. {k) 1481, c. 83— Mack. Inst., 1. 7, 14 (vol. ii, p. 287)— Craig. 2, 
 
 22. 15— Ersk.. 1, 6. 34—1 Bell's Com., 143— Bankt.. 1, o. 76.
 
 462 HATIFICATION OF DEEDS. § 741- 
 
 extorted from her vi et mefu of her husband, — is the formal act so 
 absokitely ^jro6«^/o joroftata of free consent that it cannot be coun- 
 teracted by any proof, however convincing ? In one case tlie Court 
 found the ratification " sufficient to purge all action siqier inetu, al- 
 though the woman replied that the same ratification and oath were 
 extorted also, per eandem vim et metum " (J). This decision is in 
 accordance with the uncpialified opinion of Craig (?w), that a wife 
 is not to be heard in challenge of her judicial consent ; while Mac- 
 kenzie also holds that the ratification absolutel}^ bars challenge 
 ^^ propter religionem sacrainenti" (n) ; and Bankton (o) lays down 
 that it excludes reduction, although she was actually compelled. 
 This view, however, which only allows redress where the coercion 
 is slight, and not where it is extreme, is challenged by Erskine {p) 
 as " contrary to the rules of reason and repugnant both to the canon 
 law (r), which gives conclusive effect only to such ratifications as 
 are made sine vi aut dolo, and to the principle on which our prac- 
 tice is founded ; for if the law accounts all ratifications made by 
 the wife in her husband's presence null from a presumption that 
 she is thereby laid under undue influence, it must a fortiori reject 
 such ratifications as shall appear upon positive evidence to have 
 been actually extorted from her ex vi aut metu of the husband." It 
 was perhaps on this ground that the Court once sustained a reduc- 
 tion of an infcftment, su2}er ccipite metus reverentialis, although it 
 had been judicially ratified (,9). Professor Bell observes that there 
 seems to be no doubt that a ratified deed cannot be challenged on 
 the ground referred to, unless the party taking benefit by the deed 
 should be proved to have been participant in the violence, or at 
 least to have had notice of it (t) . In this conflict of authorities 
 the question may be considered as open and douljtful (u)}^ 
 
 (Z) Grant, 1642, M., 16,483. (m) Craig, 2, 22, 15. (n) Mackenzie, 
 
 supra. (0) Bankt., 1, 5, 79— ib., 1, 5, 76. (p) Ersk., 1, 6, 34. 
 
 (r) Decretal, 2, 24, 28. Mr Eraser observes (i, 486) tliat this passage does not bear 
 out Erskine's statement, although the gloss upon it does. But the text of the decretal 
 means that only such ratifications are binding as are emitted " sine vi aut dolo, sponte." 
 
 (s) A V. B, 1612, M., 16,481. {t) 1 Bell's Com., 143. The learned Professor 
 
 observes that Erskine's doctrine is against the decision on which the act 1481, c. 83, 
 proceeded, and which is entered in the EoUs of Parliament as fixing the law on the 
 point. But the short note which has been preserved of the case seems not to warrant 
 that construction. (m) See farther on the point, Wallace, 219—1 Eraser, 435, 6. 
 
 19 Professor Menzies leans to the view that a judicial ratification by a married 
 woman does not afford an absolute security against challenge ; Lectures on Convey- 
 ancing, 3d ed., p. 41.
 
 § 744. I'.v MAi;i;iKij womkx. 463 
 
 § 742. Tlie only ul)ject of judiciul ratilicatioii lu-iiig to exclude 
 coerciou by the grunter's husljaiid, it does nut Inir challenge of the 
 deed on any otlier ground, i^uch as compulsion by a third person, 
 or fraud, or deathbed (x). Nor does it bar revocation of a deed as 
 a gift by the wife to her liusband; the law allowing donations inta' 
 virum et uxoixm to be recalled, not on the ground of force and fear, 
 but ne mutuo amove se spoUent (y). The ratification, therefore, only 
 protects the interest of third parties under deeds whereby the wife's 
 separate estate, or her conjunct right with her husband, may be 
 impaired. 
 
 XVI. Of Deeds for which Solemnities are required by jwivafe ar- 
 rangement, in addition to those enjoined by pidjlic laiv. 
 
 § 743. Persons sometimes prescribe for their deeds solenniities 
 additional to those required by common law; and the question then 
 arises, whether these are essential to the constitution of the relative 
 right or ol)ligation. The answer to this question depends on whether 
 the observance of the solemnity in issue is a condition suspensive 
 of the right or oltligation — or whether it is merely an additional 
 security designed for the protection of one of the individuals con- 
 cerned, and which he may insist upon or waive at his pleasure. 
 
 § 744. A striking illustration of the first class of solemnities 
 occurred in a case where a Scotchman, who had returned to his na- 
 tive country after a long residence in India, executed a will, which 
 concluded with the words, " In testimony of this being my last will 
 and testament, I hereto set my hand and seal, and declare it to be 
 written upon three pages, and signed in my own handwriting, this 
 28th day of September 1803 — James Nasmyth." The deed was in- 
 dorsed, " Will of James Nasmyth, 28th September 1803 ;" and it 
 bore several markings in pencil containing directions as to drawing 
 a new will, and several holograph alterations in pencil and red ink 
 upon the bequests. It had no seal ; and a portion of it below the 
 signature, wdiere the seal had probably been affixed, had been cut 
 away. The deed having been found in this state in a lockfast place 
 belonging to the testator, where he kept several private papers, the 
 executor named in it expede confirmation, and began to administer 
 
 (z) Ersk., 1, 6, 35 — 1 Friiser, 43(5. [y) Ersk., supra — 1 Eraser, 502 — Arnold 
 
 V. Scott, 1673, JI., 6091— Gordon v. Maxwell, 1678, M.. 6144— Borthwick v. Scott, 1724. 
 M., 6149. Contra, Mack. Inst., 1, 6, 14— Kichardson v. Michie, 1685, M.. 6147— Dirl. 
 and Stew., voce, inter virum H uxorum. 
 
 VOL. I. 2 G
 
 4(14 DKEDS REQUIRING SPECIAL SOLEMNITIES § 744- 
 
 the executoiy estate. Tlie deceased's next of kin thereupon raised 
 an action of reduction of tlie deed, on the ground that the seal had 
 heen cut off by the testator for the purpose of cancellation and re- 
 vocation, and that such was sliown to be his purpose by the pencil 
 alterations and other circumstances. To this it was answered that 
 the deed, being holograph and signed, w^as complete by tlie law of 
 Scotland, and that the seal not being necessary, its absence could 
 not infer cancellation. The Court of Session adopted the latter 
 view; but their decision was reversed in the House of Lords, 
 chiefly on the ground, that as the testator had prescribed a certain 
 solemnity for the authentication of his will, his removal of that 
 mark of concluded purpose amounted to cancellation (z).'^'^ 
 
 § 745. From this decision it follows a fortiori that, if the par- 
 ties to any deed declare that a certain form of authentication shall 
 be necessary to prove their consent, the omission or obliteration of 
 that conventional solemnity is (apart from any question of homo- 
 logation) fatal to the validity of the writing. 
 
 § 746. Contrasted with such cases, are those in which the deed 
 of copartnery or WTitten regulations of a j()int-stock company pre- 
 scribe a certain form for the transfer of its shares. It has re- 
 peatedly been held that these forms are intended for the security of 
 the company, by whom they may be insisted on or w^aived ; and 
 tliat thc}^ arc not essential to the constitution of an obligation un- 
 
 (z) Nasmyth v. Hare, 1821, 1 S. Ap., 65; reversing, 7th June 1817 (not reported). 
 Lord Chancellor Eldon observed — " I apprehend that with respect to a will of personal 
 estate, if there are any formalities observed beyond those which the law requires, the 
 law is, that a man may prescribe to himself the forms which shall or shall not be at- 
 tendant to his will. In this part of the island, your Lordships very well know, if a man 
 makes a will of personal estate — if I were to begin, ' I, John Lord Eldon, do so and so ' 
 — whether there was any signature or not, that would be a very good will. But I ap- 
 prehend, if I thought proper to conclude that will by saying, ' In testimony thereof to 
 this my will, I do hereby set my hand and seal ' — that it would be taken, according to 
 our principles of law, to be a declaration of my intention as a testator that the instru- 
 ment so authenticated is to be a will, and to be taken to be a will, according to the forms 
 which I myself have prescribed to observe. If, indeed, I were cut off in that moment 
 by sudden disease, before I could annex my seal, or before I could annex my handwi'lt- 
 ing, the will would do ; but if it was my professed intention on the face of the will to 
 have certain forms and ceremonies as attesting my execution of the will, and my inten- 
 tion that the will shall not be perfect till I have observed these forms, then (unless my 
 inability to do it is produced by some such circumstance) I apprehend the will would 
 not be mine ; though it would be mine if I had not made any declaration as to such 
 (for my purposes) necessary forms and ceremonies." , 
 
 20 WiLsone's Trustees v. Stirling and others, 1861. 24 D., p. 175, per Lord Curriehill.
 
 § 746. 15 Y PRIVATE AGREEMENT. 465 
 
 dertakon by any partner to transfer liis shares, under a contract of 
 sale or other agreement. Thus wliere a regulation of the East 
 Lothian Bank declared that shares might be sold, and transfers of 
 shares might be made, in such form and manner as should be laid 
 down by the directors, " but so as such transfer be made and ac- 
 cepted of by the purchaser in presence of two directors signing the 
 deed of acceptance ;" and where Weatherly, a partner, executed in 
 favour of Turnbull an absolute transfer of sliares, which was written 
 by the accountant of the bank, was executed in presence of the ac- 
 countant and teller, and was entered in the bank books, but was 
 not signed or accepted by the purchaser in terms of the regadations ; 
 and where the affairs of the Ijank having become involved, and 
 Turnbull having been called on as a partner to make an advance, 
 maintained that the transaction had not been completed; where- 
 upon Weatherly raised acti<m to have him ordained to sign the 
 transfer in terms of the regulations, and the bank sued him for his 
 share of the advance required ; — the Court held that the obligation 
 to transfer was complete, and must be implemented by Turnbull. 
 Their Lordships were of opinion that the regulation of the bank 
 could not affect the question as between the parties contracting ; 
 but, being intended only for the benefit of the bank, might be dis- 
 pensed with or not as the bank chose (a). Thus also, where the 
 contract of copartnery of the Edinburgh and Leith Glass Company 
 provided that when shares were sold or transferred the transfer should 
 be in a certain prescribed form, which included an acceptance by 
 the new shareholder, and bore the signatures of both parties, and 
 had to be recorded in the company's books ; and where Stuart, a 
 partner, granted an al)solute assignation of shares to Allan and Son, 
 qualified by a back-bond of security; but which assignation did 
 not contain any acce])tance by the assignees, and was not recorded 
 in the company's books ; and where Allan and Son intimated the 
 assignation (but not the back-bond) to the company, whereupon 
 their names were immediately entered in the company's " Journal 
 of Transfers," and, after Stuart had become bankrupt, their names 
 were entered in the " Register of Shareholders ; " and where they 
 were required by the company to pay certain calls on their shares, 
 but refused to do so on the ground that they were only assignees in 
 security, and that the forms necessary to the validity of the transfer 
 had not been observed ; — the Court held them liable as partners, on 
 
 (a) Weatherly «. Turnbull, 1824, 3 S., 92, and Ea-st Lothian Bank v. Turnbull, 1824, 
 ill.. 95. But see Lord Denman'ri remarks on tlicse cases in 7 W. S., u04. 
 
 ') ,, o
 
 4GG DEEDS EEQUIRIXG SPECIAL SOLEMNITIES. § 746- 
 
 the gi'oiind that the formalities in question were intended only for 
 the benefit of the company, and, if waived by them, could not be 
 insisted on by any other i)erson. And this judgment was afiirmed 
 on appeal (6). A similar decision was again pronounced both in 
 the Court of Session and House of Lords in a late case, where the 
 deed of copartnership declared that a sale or conveyance of stock 
 " shall in no case be valid towards making the purchaser or assignee 
 a partner, unless he shall be approved of by the directors, and a 
 minute to that eflFect entered in the Sederunt Books " ; that any deed 
 of sale or transfer shall be entered in the company's books, and 
 that until that has been done the purchaser shall not "be deemed 
 or entitled to exercise any of the rights of a partner." Even this 
 stringent clause, however, was held to be solely for the benefit of 
 the company, and not to be available to a purchaser of shares, en- 
 deavouring to escape from his liability as a partner (c). 
 
 § 747. The privileges which such clauses in a contract of co- 
 partnery confer on the company may be waived either expressly, 
 or by acts inferring homologation of the irregular transfer (d). 
 " And if it be once proved that the company did waive them, 
 they cannot be allowed afterwards to recur to them. It thus be- 
 comes just a question of evidence, whether the company are proved 
 to have waived their right of objection, and to have homologated 
 the sale and assignation " (e) ; and every such question must depend 
 on the circumstances of the particular case.^^ 
 
 (i) Tunibull V. Allan and Son, 1833, 11 S., 487 ; affd., 7 W. S., 281. 
 
 (c) Burnes v. Pennell, 1849, 6 Bell's Ap. Ca., 541 ; affirming 10 D., G89. See also 
 Robertson v. Thorn, 1848, 11 D., 353 — National Exchange Co. v. Easton, 1851, 14 D., 
 96— M'Andi-ew v. Robertson, 1828, 6 S., 950— Thomson v. FuUerton, 1842, 5 D., 379. 
 
 (d) Fife Bank v. Thomson's Tr., 1834, 12 S., 620. (e) Per L. President in 
 Fife Bank v. Thomson's Tr., supra. 
 
 21 In a recent case the Court had occasion to consider the effect of the exceptional sta- 
 tutory modes of authentication of the registers of public companies under the Companies 
 Clauses Act. The action was by a railway company for calls, and at the jury trial which 
 ensued the pursuers tendered a book as their register, to prove that the defenders held 
 the shares. The question of its admissibility was reserved for the Court. The Companies 
 Clauses Act, 8 and 9 Vict., c. 17, provides (? 29) that the production of the register of 
 shareholders shall be prima facie evidence that any party entered in it is a shareholder, 
 and of the amount and number of his shares ; and the 9th section of the act provides 
 how the register is to be kept; the names of the shareholders, the number of their shares, 
 and the amount of the subscriptions paid on them, are to be entered in the book ; and 
 it is provided that " the book shall be authenticated by the common seal of the company 
 being affixed thereto ; and such authentication shall take place at the first ordinary 
 mri-ting, or at the next subsequent iiic(,ting of the company, and so from time to time
 
 § 748. wiiiT;; not of (ji^eat impuktance. 407 
 
 CHAPTER. II. — OF WRITINGS WHICH 1)0 NOT REQUIRE THE 
 STATUTORY SOLEMNITIES. 
 
 The statutory rules considered in tlie previous cliapter are sub- 
 ject to several exceptions ; almost all of which have sprung from 
 the exigencies of business or from considerations of equity, in op- 
 position to the unqualified terms of the statutes. 
 
 I. Deeds not " of great importance." 
 
 § 748. The act 1579, e. 80, requires parties who cannot write 
 to use two notaries and four witnesses in writs imi)orting- heritalde 
 title and " other obligations of great importance ;" but leaves deeds 
 which do not come within these terms to be authenticated by one 
 notary and two witnesses, as required by the act 1540, c. 117. 
 There is not any similar distinction in the acts 1593, c. 179, and 
 1081, c. 5. But ]\[r Erskine considers that the latter act, wdiich 
 made the omission of the proper solemnities a ground of nullity, 
 
 at each ordinary meeting of the company." The Court were clear that the book, being 
 tlie pursuers' book, could not, at common law, be evidence in their favour ; that the 
 requirements of the statute were imperative; and, therefore, that the book could receive 
 no ellect, unless it was the register of the company, kept and authenticated in terms of 
 the act, — and they held that it was not so, the deviation from the requirements of the 
 statute on which they went being, that the book was made up on the plan of not enter- 
 ing the amount of the subscriptions paid on the calls. But the Court expressed their 
 views at length as to the authentication by sealing required by the act. It appeared 
 that before each ordinary meeting the fly-leaf of the book was sealed with the com- 
 pany's seal, and at each ordinary meeting the meeting held the book as sealed. But no 
 otlier part of the book was sealed, so that the seals had no apparent connection with the 
 entries. The Lord President (M'Neill) tliought that what the act required was the 
 authentication of the book as the current register, and that (he mode of sealing adopted 
 might bo hold sufficient comi)lianee with the act. But Lord Ivory, distinguishing 
 between authentilication and, identification, thought tliat the act required some authen- 
 tication of the entries ; that the mode of sealing adopted certified notliing whatever, 
 and that, therefore, the book was not authenticated in terms of the act ; Caledonian and 
 Dumbartonshire Junction Railway Co. v. Lockhait, 1855, 17 D., 917. 
 
 The stamp on a lease for less than a year of a furnished dwelling-house may be ad- 
 hesive ; and across the stamp must be written or stamped in ink the name or initials 
 of the parties to the instrument, and also tlie date of the instrument, " and proof of the 
 said writing upon or across the stamp as aforesaid, shall be a necessary part of the 
 evidence of the signing or making of the instrument in any case where such instrument 
 is not stamped with an impressed stamp." Provided where the parties to the instru- 
 ment are more tlian two, it shall be sufficient if one person only on each part shall 
 write his name or initials on tlie stamp ; 24 and 25 Vict., c. 21, g 14 ; and 24 and 25 
 Vict., c. 91, § 33. See a similar provision as to " agreements under hand," 23 and 24 
 Viet., e. 111. ? 12.
 
 468 WRITS NOT OF GEEAT IMPORTANCE. § 748- 
 
 must Ity tin.' just rules of interpretation be limited to writings ol" 
 importance, to wliicli alone the solemnities had been in use to be 
 adhibited («). Tliis is also the opinion of Sir George Mackenzie (6) 
 and Mr Eoss (c) ; and it is supported by the rules which admit 
 parole on man}' matters within £100 Scots, requiring proof by writ 
 or oath of party when beyond that sum {d). 
 
 § 749. The only writings coming under this exception are those 
 which relate to moveables within £100 Scots (£8 : 6 : 8 sterling) in 
 value (e) ; and the strict statutory rules apply to deeds regarding 
 subjects beyond that amount, and to all obligations regarding heri- 
 tage, however small be the sum at stake (/). The amount is esti- 
 mated with regard to the obligant {g), and witliout including the 
 penalty for non-implement (Ji). 
 
 § 750. If the obligation, being for more than £100 Scots, is 
 divisible {e.g., a bond for borrowed money), it is good for that sum, 
 on the creditor so restricting his claim {i). If it is indivisible {e.g., 
 an obligation ad factum praestandum) , specific performance of it 
 cannot be enforced {Ji) ; but damages for non-implement may be re- 
 covered to the extent of £100 Scots {I). An obligation which is 
 granted in corroboration or fulfilment of a previous one, but which 
 does not lay any new burden on the granter, has been deemed not 
 to be one " of importance," although it exceeds in amount the sum 
 referred to {m).^ 
 
 (a) Ersk., 3, 2, 13, and 3, 2, 10. The rubric of Crichton v. Syme, 1772, M., 17,047, 
 states that the act 1681, c. 5, was held to apply to all deeds although not of importance. 
 But the point could not have arisen, as the obligation there was for £10 sterling. See 
 Heriot v. Blyth, 1G81, M., 17,020. (b) Mack. Obs. on Act 1579, c. 80 (vol. i, 
 
 p. 281), Obs. 3. (c) 1 Ross Lee, 156. (d) Supra, ^ 592, 3, 5; 611; 629. 
 
 (e) Ersk., 8, 2, 10— Ross, supra— Tait Ev., 78— Duff Feud. Con., 10. 
 
 (/) 1579, c. 80— A B, 1725, M., 16,842 ; co7Ura, Ross v. Home, 1630, M., 16,831. 
 
 {ff) Ersk., sK^m— Anderson v. Tarbat, 1668, M., 16,836. (A) L. Halkerton 
 
 V. Kadie, 1628, M., 16,831. (i) Ersk., 3, 2, 10— Cases in M., 6840, 1, 2, 8, 4— 
 
 Supra, II 593, 629 ; contra. Jack v. Jack, 1672, 2 B. Sup., 665. (k) Ferguson v. 
 
 Macpherson, 1758, M., 16,848— Ersk., supra. As to whether an assignation is indivi- 
 sible, see Couts v. Straiton, 1681, M., 6842; contra, Sclanders v. Hill, 1710, M., 6844. 
 
 (Z) Ferguson v. Macpherson, supira. (m) Ersk., supra — Boll on Testing 
 
 Clause, 230— Sutor t;. Crammond, 1635, M., 3098— Jack v. Jack, 1671, M., 12,975; 
 16,836. But Fountainhall reports a later decision in this case to the opposite effect 
 (2 B. Sup., 665); which he challenges on the ground that it held the deed (a bond of 
 provision) altogether null, and refused to sustain it to the extent of £100 Scots. 
 
 ' Where a notary's docquet bore that two notaries had signed a trust-di.spositioii 
 and settlement at the de.sire of the granter, and it was held that one of the notaries was 
 disqualified as being a trustee under the deed, it was argued that the deed miglit be 
 sustained as a conveyance of moveables, though held as signed by one notary only. But
 
 § 753. IIOLOGHAI-H WJUTLNTJS. 4()9 
 
 II. ()f lloliujiiipli W lil'niijH. 
 
 §751. Lord Stair justly observes tliat " li..l..;^rapli writs siil.- 
 scribed are uiiquestionaldy the strongest proljatiou by writ, and 
 least imitable" {n) ; because it is much more difficult to counterfeit 
 a person's handwriting throughout a deed, than to forge the several 
 signatures to one not alleged to be holograph. Both writing and 
 subscribing a document, also, is a much more trustworthy expres- 
 sion of intention tlian merely subscribing a deed wTitten by another. 
 Accordingly holograph deeds are valid, although they do not men- 
 tion the writer or bear witnesses designed or subscril)ing (o). 
 
 § 752. This ijrivilege extends not only to deeds altogether holo- 
 graph, but also to those of which only the substantial parts are 
 so {p). And, on the other hand, where certain parts of the deed 
 are holograph, but the substantial are not, tlie statutory solemnities 
 are rerpiired (?').- 
 
 § 753. Of course where a deed by several parties is written by 
 one of them, and signed by them all, it is not hologTaph, and it 
 will therefore not bo sustained even against the party wdio wrote 
 it (s), unless its validity as against the others is not essential to the 
 constitution of the obligations upon him {}). But any number of 
 parties may effectually l)ind themselves under a deed written by 
 
 (n) Stair, 4, 42, 6. See also Ersk., 3, 2, 22—1 Bell's Com., 324. 
 
 (o) Authorities in following notes. It is therefore not a relevant objection to a holo- 
 graph deed that the subscribing witnesses did not see the granter sign, or hear him ac- 
 knowledge his subscription ; Yeats v. Yeats' Tr., 1832, 11 S., 915. 
 
 ( p) Stair, supra — Ersk., mpra. So held as to a bond holograph only in the debtor's 
 name, and the sum and date ; Vans v. Malloch, 1675 ; M., 16,885 ; — and as to a testa- 
 ment holograph only in the sums bequeathed and the legatee's names; case of Hartree's 
 testament, noted in Vans v. Malloch. See also Allardice v. Forbes, 1710, M.. 16,862— 
 Panton v. Gillies, 1824, 2 S., 632. (r) See Heriot v. Blyth. 1681. M., 17.020. 
 
 («) Sproul V. Wilson, 1809, Hume D., 920— Miller v. Farquharson, 1835, 13 S., 839. 
 
 (0 With tlie cases in the preceding note (which related to contracts), compare 
 M'Millan v. M'Millan, 1850, 13 D., 187, where a joint testament, signed by husband 
 and wife, hologi'aph of the former, was sustained as his deed ; although, if the wife had 
 predeceased, it would not have been valid as against her next of kin. The absence of 
 subscription by some of the parties in contracts may be obviated by rei interventus and 
 liomologation. See the chapters on these matters, infra. 
 
 it was held that the deed was of importance and required two n<itaries ; and tlmt, even 
 if it had not been so, seeing that, as appeared from the docquet, the granter had en- 
 trusted the making of his deed to two notaries, and not to one, the deed would still have 
 been null; Ferri(> v. Ferrie's Tnistees, 1863. 1 Maeph.. 291. 
 2 Laurie v. Laurie, 1850, 21 D., 240— <Sm/';<i, ? 709. n.-t.' '2.
 
 -170 HOLOGRAPH WRITINGS. § 753- 
 
 aaotlier person, by each writing on it with his own liand the words 
 '• I agree to the above," or the Hke, and adding his subscription (?<). 
 And a deed not hoh^graph may be made eflectual by being referred 
 to as vahd in a writing proved to be holograph (x). A guarantee 
 by a mercantile company, holograph of the acting partner, and 
 signed by him with the firm's subscription, was held valid, although 
 it was not in re mercatoria (?/). 
 
 § 754. A holograph deed not containing a statement that it is 
 so, is not probative; because its validity is a latent fact, which 
 must be proved by the party founding on it. But if it sets forth 
 its holograph character, it is received as probative (or prima facie 
 proof) of that fact ; wdiich the challenger must bear the burden of 
 disproving (a). It is true that much reliance should not be placed 
 upon such a statement ; which would probably be introduced into 
 a fabricated wTiting. But the rule is convenient in fixing the bur- 
 den of proof, and in giving probative effect to deeds truly holo- 
 graph. Ill one case wdiere a deed not bearing in gremio to be holo- 
 graph, was challenged as forged, Lord Jeffrey observed that the 
 party founding on the deed would discharge the burden of proof by 
 prima facie evidence that the signature and the body of the writ 
 were in the same handwriting ; upon which it would lie on the 
 challenger to prove forgery, on account of the presumption against 
 crime (a). But in referring to that opinion in a subsequent case (b), 
 Lord President Boyle observed, that the user of a deed not bearing 
 ex facie to be holograph, must prove that it is so.^ 
 
 {u) Bryson v. Crawford, 1833, 12 S., 39. (x) As in M'Intyre v. M^f^arlane, 
 
 1st March 1821, F. C— Inglis v. Harper, 1831, 5 W. S., 785 ; reversing 6 S., 864— See 
 also Hamilton v. Moir, 1710, M., 17,028; and infra, g 807. (?/) Buchanan v. 
 
 Denniston, 1831, 9 S., 557 ; S. C, 13 S., 841. (z) Ersk., 3, 2, 22—1 BeU's 
 
 Com., 324— E. Rothes v. Leslie, 1635, M., 12,605— Turubv.ll v. Doods, 1844, 6 D., 896, 
 per L. Jeffrey— Robertson v. Ogilvie's Tr., 1844, 7 D., 236— Waddell v Waddell's Tr., 
 1845, 7 D., 607, per L. Moncrieff— See also Donaldson v. Walker, 1711, M., 11,511, and 
 12,615— Contra, Ellies v. Elliot, 1630, 1 B. Sup., 312— Inglis v. M'Cubine, 1631, M., 
 16,962— A B, 1638, 1 B. Sup., 103. (a) Turnbnll v. Doods, 1844, 6 D., 896. ' 
 
 (b) Anderson v. Anderson, 1850, 22 So. Jur., 478. 
 
 3 Tlie general rule of law is, that a party who founds on a deed as holograph must 
 prove that it is so. Thus where a party produced a document in the form of a letter, 
 bearing to be addressed to him and to be signed by a party deceased, and which bore to 
 be a bequest of the whole moveable estate of the deceased, and where the document 
 was challenged as a forgery ; it was held that the onus of proving, not only that the 
 deed was all in one handwriting, but that it was all in the handwriting of the alleged 
 maker, lay on the party propounding the deed ; Anderson v. Gill ; decided 1850 ; re- 
 ported 20 D., 1326 ; affirmed 1858, 3 Mac(pieen, 180.
 
 § 750. IIOLUGRAPH WRITINGS. 471 
 
 §755. A general statement, Iiowl-vlt, that the deed i.s liolu- 
 graidi, will Hdt ciiiliiacu words written on erasure, or marginal ad- 
 ditions and interlineations; which must therefore he proved to he 
 genuine (c). If they are, the deed is effectual in its altered condi- 
 tion, although the words are in mbsfantkdibns (</). ]hit when any 
 question of deatld)ed or the like arises, in which the dates of such 
 alterations are important, these must he proved ; and merely prov- 
 ing when the hody of the deed was MTitten will not give them ef- 
 fect as of the same date (e). Holograph additions on the margin 
 are valid, although not signed l)y the party (/). It is sometimes 
 a question whether holograph alterations made by a party on his 
 deed (e.j/., in ])eneil or red ink) were intended to be effectual as 
 part of the deed, or were merely memoranda for enabling a con- 
 veyancer to draw' out a new^ will in terms of the party's directions ; 
 and in such cases it may be doubtful whether the granter intended 
 that his original deed should subsist until the execution of the new 
 one, or that it should be held as cancelled, and as no longer the 
 expression of his will. Every such question must depend on the 
 evidence in the particular case, and no rules can be laid down on 
 the point by w'ay of anticipation (g)^ 
 
 § 756. The proof that a writing is holograph may be either by 
 the direct testimony of persons wdio saw the party Avrite the deed, 
 or by the indirect evidence of those who are acquainted with his 
 handwriting, or who have compared the deed with WTitings ad- 
 
 (c) Robertson v. Ogilvie's Tr., 1845, 7 D., 236. (d) Robertsons. Ogilvie's 
 
 Tr., supra— Gra.nt v. Stoddart, 1849, 11 D., 860 ; afl'd., 1 Macq., 1G3— Wilson v. Smith, 
 1803, Hume D., 882— Horsburgh v. Horsburgb. 1848, 10 D., 824— See also Kemps v. 
 Ferguson, 1802, M., 10,949, and per Lord-Ch. Eldon in Nasmyth v. Hare, 1821, 1 Sh. 
 Ap. Ca., 74. (e) L. Durio v. Gibson, 1667, M., 16,927— Joliuston v. Johnston, 
 
 1688, M., 17,063 — Supra, g 733. (/) Horsburgh v. Horsburgh, supra — Bruce 
 
 V. Stewart, 1666, 2 B. Sup., 427. (ff) See Nasmyth v. Hare, 1821, 1 Sh. Ap. 
 
 Ca., 65, whore Lord Chancellor Eldon's speech is highly instructive on this class of 
 uiises. 
 
 ■• In England, alterations in pencil in a will are presumed to be deliberative, but 
 the presumption may be rebutted ; Parkins v. Bainbridge, 3 Pliil. Eccl. Rep., 321 — 
 Francis c. Grover, 5 Hare, 39, 46-49 — Bateman v. Pennington, 3 Moore's Pr. Ca., 223. 
 l\Iuch of tlie law about interlineations and erasures in tested deeds is inapplicable to 
 ]iokigrai)h deeds. There is a great distinction in liolograjih deeds between what is writ- 
 ten and what is obliterated. Wliat is written must have been written on purpisc ; but 
 the obliterations may have happened through mistake; per Lord Chancellor Chelmsford 
 in Magistrates of Dundee v. Morris, 1858, 3 Macij., 134. It is, therefore, competent in 
 such cases to read a word obliterated as part of the deed, if the word is necessary to the 
 sense; Chapman v. M'Briin. ISCO. "J^ I).. 746.
 
 472 HOLOGRAPH WRITINGS. § 75G- 
 
 mitted or proved to be genuine. On tliis subject, which is fully 
 considered afterwards (A), it is only necessary to observe here, that 
 the first kind of evidence is undoubtedly the best. The second is 
 trustworthy, provided the witnesses are persons of observation, and 
 have had sufiicient opportunities of seeing the party's handwriting 
 to make them familiar with it. But little or no weight is due to 
 the last ; for there are few trials upon the authenticity of deeds, 
 where " persons of skill " do not speak with equal confidence on op- 
 posite sides ; and, with very rare exceptions, they readil}^ give evi- 
 dence for the party who first applies to them (?'), The Court will 
 inspect the document for themselves when the question is decided 
 by them ; and in jury trials the jury Avill be allowed to make a 
 similar examination (k). The circumstances under which the deed 
 was produced, the place where it was found, and other similar mat- 
 ters may also be important in such inquiries (l). 
 
 § 757. According to Lord Stair, if holograph deeds " are not 
 subscribed, they are understood to be incomplete acts, from which 
 the party hath resiled : yet, if they be written in count books, or 
 upon authentic writs, they are probative, and resiling is not pre- 
 sumed " (m). The general rule both of law and practice, therefore, 
 requires that holograph deeds be subscribed in token of concluded 
 purpose. And the absence of this solemnity, combined with other 
 facts which indicate that the deed is inchoate, will be fatal ; as in a 
 case of a holograph will which was found, not in the maker's char- 
 ter-chest, but in his portable writing-desk, and which commenced 
 with his name, but contained several blanks, and was not sub- 
 scribed («). 
 
 By the words of the act 1696, c. 25, subscription by the alleged 
 trustee is required to a declaration or back-bond of trust (o). 
 
 § 758. On the other hand, a holograph writing unsubscribed 
 mil be sustained if there is no doubt that it was meant to be effec- 
 tual. This has been held as to the postscript to a holograph and 
 signed letter (p) ; and as to markings by a debtor in an account- 
 
 (A) Chapter on the improbation of writings, Part ii, b. i, t. 1, c. 8. («) This 
 
 remark has been frequently made from the bench, as per L. President Boyle in Turn- 
 bull V. Doods, 1844, 6 D., 901— Anderson v. Anderson, 1850, 22 Sc. Jur., 478— Per 
 L. Balgray in Greig v. Clark, 1829, 7 S., 773. (k) See chapter on improbation 
 
 of writings, Part ii, b. i, t. 1, c. 8. (Z) Anderson v. Anderson, supra— Sec 
 
 Na.smyth v. Hare, 1821, 1 Sh. Ap. Ca., 65. [m) Stair, 4, 42, 6. See also Ersk., 
 
 3, 2. 22. {n) Dunlop v. Dunlop, 1839, 1 D., 912. (o) See Watson v. 
 
 Forester, 1708, M., 12,755. (js) Wauchope v. Niddrie, 1662, M., 16.965— 
 
 A B, 1671, 2 B. Sup., 517. See also Paterson v. Inglis, 1717, M., 9441.
 
 § 758. llOLOGIiAPIl WUITJNGS. 473 
 
 l.uok kept by tlic creditur (/•) ; aixl receipts for partial payments 
 indorsed on a bond (s). So a liolograpli docquet by a notary sign- 
 ing for a person who cannot write is effectual altliough not sub- 
 scribed, if it contains tbe notary's name in grcmio (/). On the same 
 principle, a holograph, but unsubscribed, account, which the factor 
 for a landlord delivered to one of the tenants, was held to prove a 
 settlement between them, chiefly on account of the delivery {u). 
 And a memorandum holograph, but not subscribed, being found in 
 the creditor's repositories, is sufficient as the debtor's writ in cases 
 falling under the triennial or sexennial prescriptions (x). In one 
 Ciise, a deed of settlement declared that all legacies should be effec- 
 tual wliicli tlie testator should bequeath by separate writings or 
 memoranda, although not formally executed, provided they ex- 
 pressed his intention, and were "written, dated, and signed" by 
 him. lie left two liolograph documents bequeathing legacies. In 
 the one (consisting of one sheet of paper), the first page was dated 
 and not subscribed, and the second, dated nine days after, was sub- 
 scribed. The other was unsubscribed, but was marked on the back 
 " Additional Codicil," and began thus — " Additional Codicil, 83 
 Princes Street, 1st May 1830.— 1, J. D., leave the following addi- 
 tional legacies to my former legacies." The Court sustained them 
 both as valid codicils, Lord Balgray observing, that signing and 
 subscribing are not identical, as the Sovereign signs by superscrip- 
 tion (//). There is also an old case, in which an unsubscribed holo- 
 graph will was sustained ; but the report does not state whether it 
 bore the testator's name in the body {z). The authority of that 
 case, however, was disregarded in Dunlop v. Dunlop (a), in which 
 the Court considered it more difficult to sustain an unsigned testa- 
 ment than an unsigned contract, discharge, or the like, in which 
 there is onerosity or dehvery. In England, holograph wills con- 
 taining the testator's name in the body, but unsubscribed, were 
 good at common law {h). But a recent statute made subscription 
 essential to wills in that country (c).^ 
 
 (r) Stair, 4, 42, 6. (s) Currence v. Racket, 1688, 2 B. Sup., 121— Stair, 
 
 xupra. [l) Ciillon v. Thomsons, 1731, M., 16,842 — Gordou v. Murray, 1705, 
 
 M., 10,818. (m) Aiiislie v. Chisholm, 1696, M., 12,626. (x) Donaldson 
 
 V. Murray, 1706, M., 11,110— Watson v. Hunter, 1841, 3 D., 583— Watson i-. Johnstone, 
 1846, 18 Sc. Jurist, 598. {ij) Gillespie v. Donaldson's Tr., 1831, 10 S.. 174. 
 
 This decision is doubted by L. Mackenzie in Dunlop v. Dunlop. siipra, 1 D., 912. 
 
 (2) V. Tithill. 1010. M., 16,959. (a) Supra, (n). 
 
 (6) Lemaino v. Stanley. 1081, 3 Levinz, I — Morrison v. Tumour, 1811, 18 Vesey, 
 183— Na.smyth v. Haro, 1821, 1 Sh. Ap. Ca., 72, per Lnrd-Ch. Eldon. 
 
 [c) 7 Will. IV, and 1 Viet., c. 20. § 9. 
 
 5 I^ady Baird Preston conveyed her estates to trustees by n fxriiid tiust-disjposition
 
 474 II OLOGRAPH WEITIXGS. § 759- 
 
 § 759. It w(tul(l aocin that a holograph promissory note in 
 these terms — " I, John Brown, promise to pay," hut without tlie 
 granter's signature, is obligatory (d). 
 
 § 760. Holograph deeds not regularly attested are not probative 
 of the dates set forth in them ; for, if they were, the rights of com- 
 peting creditors or disponees, and of heirs in questions of deathbed, 
 ami the like, would often and easily be defeated by false dating (c). 
 
 § 761. In general the deed is objected to as being antedated ; 
 
 (d) Per Lord Balgray iu Gillespie v. Donaldson, 1831, 10 S., 174. See also the 
 cases A B (M'Eaith v. Murdoch), 1738, M., 1136; Elch., "Bill," No. 19, S. C.— Came- 
 ron V. Cameron, 1775, 5 B. Sup., 393— A B, 1750, M., 1442— A B, 1758, 5 B. Sup., 867 
 —Hare v. Geddes, 1786, M., 1446— M'Bean v. M'Pherson, 1806, Hume D., 57 ; in all 
 of -whieli cases bills bearing the drawer's name in the body, but not signed by him, were 
 sustained against the acceptors, at a time when the drawer's subscription was essential 
 to the constitution of the obligation in a bill. But see per L. FuUertou in Dunlop v. 
 Dunlop (supra), 1839, 1 D., 912. 
 
 [e) Ersk.. 3, 2, 22. Thus a holograph I U does not prove its date to have been 
 before the granter's bankruptcy ; Dyce v. Paterson, 1847, 9 D., 1141. A holograph dis- 
 charge does not prove its date against a singular successor to the debt, whether it is in- 
 ter conjunctos, L. Forbes v. iVI. Huntly, 1611, M., 12,603 — or not, Dickie v. Montgomerie, 
 1662, M., 12,606— Bruce v. Buchan, 1684, M., 12,609. The same rule applies to a holo- 
 graph bond in a competition of creditors ; Bell v. Fleming, 1672, M., 12,607 ; 2 B. Sup., 
 158, S. C— or with an inhibitor ; Braidy v. Fairney, 1665, M., 12,607 ; 12,275. A 
 holograph bond by a woman, dated before marriage, is not probative of its date as against 
 her husband ; Temple v. L. Whittingham, 1636, M., 12,490 and 12,606. A letter signed 
 by a partner with the iirm's signature does not prove its date, when founded on after 
 the company is dissolved ; Winton v. Gibson, 1831, 9 S. and D., 662. In cases of death- 
 bed, holograph deeds do not prove their dates; Yeats v. Yeats' Tr., 1833, 11 S., 915; 
 Maitland v. Maitland, 16th May 1815, F. C— Cases in Mor., pages 11,477 ; 12,607, 9, 
 12, 14. And the same rule applies to a holograph will challenged on the ground of fa- 
 cility or insanity ; Suttie v. Ross, 1838, 16 S., 429— Waddell v. Waddell's Trustees, 
 1845, 7 D., 605. On the same ground, the date of a holograph marginal addition is not 
 held to be that of the rest of the deed, and must be proved ; L. Durie v. Gibson, 1667, 
 M.. 16,927— Johnstone v. Johnstone, 1688, M., 17,063. 
 
 and settlement, and directed her trustees to pay all legacies she might leave by any 
 separate writing, letter, or jotting under her hand, found in her possession at her death. 
 Eight holograph writings were found in a box, along with the trust-disposition and 
 settlement. One of them was unsigned, but the initials of the testatrix were affixed to 
 a memorandum on the back of it ; the others were fully signed, and the testatrix was 
 not in the custom of signing by initials. It was held that the whole of the documents 
 formed part of the settlement. There was considerable difference of opinion on the 
 bench as to the validity of the unsigned document ; Baird v. Jaap, 1856, 18 D., 1246. 
 Entries in a bank pass-book, holograph of a bank, initialed by an officer of the bank, 
 were held probative ; Rhind v. Commercial Bank of Scotland, 1857, 19 D., 519 ; reversed 
 (m the ground that a bank pass-book was a current and not a fitted account, and that 
 tlif entries in it miglit be challenged; 1860, 3 Macq., 643-32 Sc. .Jur., 283.
 
 § 763. HOLOGRAPH WRITINGS. 475 
 
 but the .same priuciijlc iiul'ls wli.n' it is alleged tu lie the re- 
 verse (/). 
 
 § H')2. Stair (rj) and Erskine (h) lay down that holograph deeds 
 not tested are i)resiimed to have been granted on deathbed. But 
 it is evident that these liigh authorities had in view the question, 
 who must bear the burden of proving the date of such a deed ; and 
 that they did not mean to lay down that an untested holograph 
 deed is more probably false than true in its date, or was more pro- 
 bably granted on deathbed than in liege poustie. Accordingly, it is 
 thought that the rule should be stated thus : — A hologra^jh deed 
 untested is not probative of its date, which must therefore be corro- 
 borated by other evidence, according to the nature of the case ; and 
 the i)arty founding on the deed must bear the burden of proof, be- 
 cause he is in petilorio and maintains the affirmative {i). The cor- 
 roborating evidence ought to be strung in cases of deathbed, since 
 the grantor, being in full possession of his faculties, might be sup- 
 posed to have antedated his deed in order to defeat the legal pre- 
 sumption against deathbed deeds: — whereas, if the deed is chal- 
 lenged on the ground of facility or insanity, slight corroborating 
 circumstances should bo held sufficient to make it effectual as of 
 the date which it bears ; because the probabilities are very strong 
 against the supposition that the grantor, when incapable of making 
 a rational deed, wrote one with his own hand, and purposely af- 
 fixed to it a false date, prior to the commencement of his alleged 
 insanity or facility (k). In questions of fraudulent preference and 
 alienation, again, the corroborating evidence would require to be 
 strong, since there was a manifest object to gain by antedating the 
 deed. 
 
 § 763. In such cases the date affixed to the deed is not to be 
 regarded ^ro nonscripto. Although it is not full proof, it is an ele- 
 ment in the proof, to which the jury ought to give such weight as 
 
 (/) Row V. Dick, 1693, M., 16,699. See also Ayton v. Napier, 1686, M., 12,609. 
 In such cases tlie ilecd may be set up by the grauter's survivance, as where the objec- 
 tion is that it was granted during pupilarity ; Ayton v. Napier. {g) Stair, 3, 
 4, 29, and More's Notes, p. 316. {h) Ersk., 3, 8, 96. (i) Haddoway 
 V. Inglis, 1673, 3 B. Sup., 200— Cunningham v. Ramsay, 1677, note to ibid. This 
 point is well brought out in Lord Moncreiff's charge to the jury in "NVaddell v. AVaddell's 
 Tr., 1845, 7 D., 605 ; and by Lord President Hope in Suttie v. Ross, 1838, 16 S., 429 ; 
 Macf. Rep., 139, S. C. {k) Sec tliis distinction, as well as the whole law re- 
 garding the dates of liologTaph deeds, fully and clearly expounded by Lord Moncreiff in 
 his charge to the jury in ^V;l(ldell v. ^\'il(ldel^s Tr., supra. See also Suttie v. Ross, 
 supra.
 
 476 HOLOGRAPH WRITINGS. § 763- 
 
 it deserves in the circuiiistaiices, and looking to the motives which 
 the party may have had for misdating (l). 
 
 § 764. A holograph deed, challenged on the ground that it is 
 not of the date it bears, will be effectual as to matters which do not 
 depend on its date ; and, therefore, where a holograph disposition 
 was partly gratuitous and partly onerous, the Court in reducing it 
 ex capite lecil reserved its effect as a security for its alleged onerous 
 cause (w). 
 
 § 7G5. It would seem that only third parties — or in case of 
 deathbed the granter's heir — averring that the deed is falsely dated 
 to their prejudice can impugn the date which the deed contains (n) ; 
 and that both the granter of it (o), and the grantee who accepted 
 it (^), are havred 2)ersonali exceptione from challenging it on that 
 ground. 
 
 § 766. An exception to the general rule that holograph writings 
 are not probative of their dates exists in regard to a debtor's writ- 
 ten acknowledgment of intimation of an assignation. Practice and 
 repeated decisions have established such an acknowledgment to be 
 effectual, unless the competing creditor proves that the date is 
 false (r). 
 
 III. Of Testamentary Deeds. 
 
 § 767. Last wills often require to be executed in emergencies 
 by persons disabled from writing, when two notaries and four wit- 
 nesses cannot easily be procured, and when the presence of so many 
 persons in the sick chamber might be injurious to the testator. 
 On this ground testamentary deeds are probative, if authenticated 
 only by one notary and two witnesses (s). 
 
 § 768. Before the Reformation they used to be signed by clergy- 
 men acting as notaries ; and the act 1584, c. 133, which forbids the 
 
 [I) This seems to be the proper construction of Ersk., 3, 2, 22 ; and tlie law is so 
 laid down by Lord MoncreifF in Waddell v. Waddell's Tr., supra. {m) Gordon 
 
 V. Koss, 1702, M., 12,614 ; 5050, S. C. (ji) Tait Ev., 106— Duff Feud. Con., 
 
 27. (o) E. Dunfermline v. E. Callender, 1674, 1 B. Sup., 703. 
 
 {p) Scott V. Douglas, 1737, M., 12,616 ; Elch., " Prescription," No. 12, S. C. 
 
 (r) 2 Bell's Com., 18— Bell's Pr., ? 1465— More, 281— Tait Ev., 54— M'Gill v. Hut- 
 chison, 1630, M., 860 ; 12,605 ; S. C— Gray v. E. Selkirk, 1708, M., 4453 ; 1 Rob. Ap. 
 Ca., 1 ; S. C— Newton v. CoUogan, 1785, M., 850— Dougal v. Gordon, 1795, M., 851. 
 
 («) Stair, 3, 8, 34— Ersk., 3, 2, 23— Tait Ev., 109— Buchanan v. M'Artey, M., 
 16,958— Bog V. Hepburn, 1623, M., 16,960— Stoddart v. Arkley, 1799, M., 16,857— 
 Hardie v. Hardie, 6th December 1810, F. C— Rintoul v. Boyter, 1833, 5 De. and And., 
 215, aild., 6 W. S., 394.
 
 § 770. WILLS. 477 
 
 clergy to exercise lay offices, excepts the " making of teBtaments." 
 This privilege originally applied only to churchmen who had been 
 entered as notaries ; but long custom has extended it to all parish 
 clergymen of the established church, because their office frequently 
 brings them to dying persons when notaries cannot be got. Ac- 
 cordingly, a will signed for the testator by his parish clergyman 
 before two witnesses is valid and probative (f). In two old cases, 
 wills were reduced because signed by the minister of a diflercnt 
 parish from that in wliich the testator resided, and in which the 
 parish minister was present at the time (u). It would therefore 
 seem that the privilege does not extend to clergymen of dissenting 
 churches. 
 
 § 769. The question whether a particular deed is privileged as 
 a will, depends on whether it is of a testamentary nature, and not 
 on the circumstances attending its execution. Thus an assignation 
 executed by one notary for a person on deathbed is null (x); where- 
 as a postnuptial marriage-contract so authenticated has been sus- 
 tained, as being in fact a mutual will (y). The privilege does not 
 extend to mortis causa dispositions of heritage, which in form are 
 deeds i7iter vivos (z). But a nomination of tutors signed by clergy- 
 men in place of notaries has been sustained (a). 
 
 § 770. Wills are privileged only in the form, not in the sub- 
 stance, of the execution. Accordingly, the docquet must bear that 
 the subscription, whetlier by a notary or a clergyman, w^as by the 
 testator's authority (h). In one case where a will bore at the foot 
 the testator's name, and the docquet stated that she had put the 
 pen into the minister's hand " earnestly requesting " him to sign 
 her name for her, the Court held the deed to be invalid in that 
 form, but sustained it on the minister signing his own name, the 
 case having been superseded for that purpose (c). This decision is 
 said to be of doubtful authority (d). In another questionable case, 
 a legacy above £100 Scots was held to be constituted by a certifi- 
 cate signed by a minister in his own name, although the testator 
 had previously executed a wdll which did not mention the be- 
 
 (0 Stair, 3, 8, 34, and 4, 42. 7— Eisk., 3, 2, 23—1 Koss Lee. 159— Tait Ev.. 109- 
 Cases in following notes. (m) Hepburn v. L. Wangbton, 1606, M., 16,827— 
 
 Douglas V. Wilson, there cited. {z) Wardlaw v. E. Marischal. 1610, JL. 16.959. 
 
 {>/) Stoddart i-. Arkley, 1799. M., 10,857. See also L. Hassingtou v. Bartilnio, 1631, 
 M., 16,832, noted supra, g 675. (2) More, 404— Stoddart v. Arkley, supra. 
 
 (a) Gray v. L. Ballegerno, 1678, JL, 16,296. (6) Mackenzie v. Burnett. 
 
 1688, M., 16,838— Williamson v. Urquhart, 1688, M., 16,838. (r) Traill r. 
 
 Traill. 1805. M.. 15.955 ; 17,061, S. C. (d) Mere's Notes, 405— Tait. 110.
 
 478 WILLS. § 770- 
 
 qiiest (e). A nominatiou of tutors was once sustained, although 
 the ministers acting as notaries signed it after the testator's 
 death (/). This decision cannot be rehed on (g). 
 
 § 771. Erskine (/<) says that " testamentary deeds are so much 
 favoured, that if the testator's intention appear sufficiently, they 
 are sustained, although not quite formal, especially if they be exe- 
 cuted where men of skill in business cainiot be had." And he cites 
 a case in wliicli a will executed by a soldier when abroad, which 
 did not mention the writer, was sustained, apparently on the prin- 
 ciple of the testament urn militare of the civil law (i). In another 
 case the Court, " in the particular circumstances" (which were very 
 special), held that a legatum Uberatioms of two debts of 10,000 
 merks each, was validly bequeathed under certain informal writs, 
 which they allowed to be adminiculated by parole evidence (k). 
 But in modern cases the Court have repeatedly refused to give effect 
 to testaments and codicils which were not holograph, probative by 
 the act 1681, or executed by a notary, or minister, and two wit- 
 nesses (/). 
 
 § 772. A mutual will by a husband and wife, written and signed 
 by the former, and signed by the latter, was sustained as the hus- 
 band's will ; although it would not have been effectual as the wife's 
 if she had predeceased (m).^ A mutual will is thus different from 
 a contract, which is null as to all the obligants, if any of them are 
 not bound l)y it. 
 
 § 773. It is essential to wills, whatever be the form of their 
 authentication, that they be executed as finished writs. Accord- 
 ingly, where a testator in a holograph letter directed his agent to 
 prepare a codicil in certain terms, which he annexed in his own 
 
 (e) Dundas v. his father's Exr., 1639, M., 12,50L (/) Gray v. L. Ballegerno, 
 
 supra. iff) See Huggane v. Scott, 1664, 2 B. Sup., 362 ; where the Court 
 
 seemed to think it would be a good ground for reducing a will, that the clergyman and 
 ■witnesses signed after the testator's death. {h) Ersk., 3, 2, 23 — See Norvel v. 
 
 Eamsay, 1763, M., 12,290, noted infra, § 780. (i) Ker v. Hay, 1708, M., 
 
 16,968; 2 Fount., 411, S. C— See also Pennycook v. Campbell, 1709, M., 16,970— 
 Montgomery v. M. Lothian, 1702, M., 16,976— L. Sempil v. Murray, 1732, Rob. Ap. Ca., 
 282 — a.nd per curiam in Crichton, 1802, M., 15,952. (k) Norvel v. Ramsay, 
 
 1763, M., 12,290. (I) Rankine v. Reid, 1849, 11 D., 543— Dundas v. Lewis, 
 
 1807, Hume D., 917 ; Mor. Apx., " Writ," No. 6, S. C— Crichton, 1802, M., 15,952— 
 Logan V. Logan, 1823, 2 S., 253— See also M'Millan v. M'Millan, 1850, 13 D., 187— 
 Inglis V. Harper, 1831, 5 W. S., 785 ; reversing, 6 S., 864. (m) M'Millan v. 
 
 M'Millan, supra. 
 
 6 Laurie v. Laurie, 1859, 21 D., 240.
 
 § 775. WILLS. 479 
 
 handwriting, .uid signed, lading up u dui)licate of it in his reposi- 
 tories ; and where he died (nut su(Menly) ])efure a ibrmal deed had 
 heen prepared, ])ut after some eorrespondenec with his agent as to 
 its terms — the House of Lords, reversing the decision helow, held 
 tlie document to he only a contemplated, not a completed, codi- 
 cil (n). In another case a person executed a trust-deed for pay- 
 ment of such annuities, &c., as he should appoint hy a writing under 
 his hand, although informal ; and he also executed a relative deed 
 of instructions reserving power of alteration. lie afterwards sent 
 to his agent holograph and signed instructions for a new settle- 
 ment, the draft of which was transmitted to him when confined to 
 hed hy indisposition ; and he was seised one or two days after- 
 wards with an illness of wdiich he died, without having executed a 
 formal deed or initialed the draft. The Court refused to hold the 
 holograph instructions as equivalent to a will (o).' Thus, also, 
 where a testator signed and sealed a holograph testament conclud- 
 ing " In testimony of this heing my last will and testament I here- 
 to set my hand and seal ;" and the deed was found in his reposi- 
 tories with the seal cut (not torn) off, there being no suspicion that 
 a stranger had damaged it, — the House of Lords, reversing the de- 
 cision of the Court of Session, held that the testator had prescribed 
 a solemnity essential to the autlicntication of his will; and, having 
 himself withdrawn that, had intentionally mutilated and annulled 
 the deed (p). 
 
 § 774. A signed but iniprol)ative will cannot by rei mfervenfns 
 during the testator's life bo raised into a conveyance inter vivos (r). 
 Homologation, however, may exclude tlie heir-at-law from reducing 
 an informal will (.s).^ 
 
 lY. How far Discharges are privileged. 
 § 775. The statutory formalities must be observed in deeds of 
 
 (n) Monro v. Coutts, 1813, 1 Dow, 437. (o) Stainton v. Stainton's Tr., 1828. 
 
 6 S., 363. {p) Nasmyth v. Hare, 1821, 1 Sh. Ap. Ca., 65. There were also 
 
 alterations in red ink and pencil on the instrument, and extrinsic documentary evidence 
 of the testator's intention to execute a new will. See this case supra, § 744. 
 
 (r) Boyes v. Dinwoodies, 1800, Hume D., It 10. (s) See Fordyce v. Fordyce, 1743, 
 
 M., 6700 ; EIlIi.. " Testament," No. 9, S. C. See infra, g 852. et seq.. on homologation. 
 
 7 But where a tru.'^ter in a mortis causa trust-deed directed his trustees to pay Jiis cre- 
 ditors, as they and tlie amount of tlieir debts shoulil be set forth in a list to be hit 
 by the truster; it was held that tlie bequest was good, and could not be defeated by 
 failure of the trustor to leave such a list; Sprot »>. Pennycook, 1855, 17 I)., 840. 
 
 8 As to wills executed abroad, see 24 and 26 Vict., c. 114, and inf,a, § 1024, et seq. 
 
 VOL. I. 2 H
 
 480 DISCHARGES. § 775- 
 
 discliarge (with certain exceptions to be noticed immediately), when 
 the amount is beyond £100 Scots (f). This has been held in re- 
 gard to discharges of a debt of £100 sterling (u) ; of a bond (x) ; 
 and of a legacy (?/). 
 
 § 776. But receipts for rent are valid if only signed; a privilege 
 said to have been granted to tenants on account of their rusticity 
 and ignorance of business (z). The same rule is applied in practice 
 to receipts for feu-duties. 
 
 § 777. Discharges in re mercatoria come under the privilege in 
 favour of that class of writings (a). Professor Bell considers that 
 the discharge of a debtor on a composition-contract is valid, if sub- 
 scribed by the creditors without the statutory formalities, on ac- 
 count of the neglect among mercantile men to observe these in their 
 ordinary Avritings in important business matters {h). But, with de- 
 ference to that high authority, there is room to doubt whether a 
 deed of so important a character, for which no peculiar haste is re- 
 quired by the exigencies of trade, and which is only collaterally 
 allied to res mercatoriae, is valid without the rules of the statutes 
 being observed. 
 
 § 778. A receipt by an officer of a regiment for £50 sterling to 
 account of pay, not holograph or tested, was once sustained, pro- 
 bably on account of the practice not to authenticate such docu- 
 ments in terms of the statutes (c). 
 
 § 779. There is a great deal of looseness in practice as to the 
 authentication of discharges ; and, in particular, receipts for termly 
 payments of interest, annuities, premiums of insurance, and the 
 like, are almost always merely subscribed by the granter without 
 any attestation. It is not likely that the Court would hold such 
 receipts null. 
 
 § 780. In a case of a very special nature the Court sustained a 
 
 {t) Cases in three next notes — Supra, § 748. The report of the case Campbell v. 
 Montgomerie, 1822, 1 S., 446, states that an informal discharge was there sustained. 
 But the session papers show that there were a number of other points wliich were suflB- 
 cient for the decision of the case, without raising any such general question. 
 
 (m) Irvine v. Macjore, 1710, M., 12,284. {%) Gordon v. M'Intosh, 1710, M., 
 
 16,974. {y) Grierson v. King, 1781, M., 17,054 ; Hailes, 887, S. C. 
 
 (z) Stair, 4, 42, 6— Ersk., 3, 2, 23— Tait Ev., 125—2 Hunter on Land, and Ten., 
 428-Schaw v. his Tenants, 1667, M., 16,966— Preston v. Scott, 1667, M., 16,967— 
 Boyd V. Storio, 1674, M., 12,456; 16,968, S. C— Cunningham, 1684, 2 B. Sup., 66- 
 Glendinning v. Glendinning, 1685, M., 9213. (a) Infra, g 784, et seq. 
 
 {b) 2 Bell's Com., 504. This point was raised but not decided in Glass v. M'Intosh, 
 1825, 4 S., 1. (c) li. Sempill v. Murray, 1732, Eob. Ap., 282. See also Mont- 
 
 gomery V. M. Lothian, 1712. M.. IC,,97C,— Supra, ? 770.
 
 § 783. WRITINGS IN SUBMISSIONS. 481 
 
 legatum liherationis of twu IjoikIs of 1(),(J0(J iiierks each, bequeathed 
 by certain informal writings, whicli were ;i11<mv(m1 to be adminicu- 
 lated by ])ar(»](' jiroof (d). 
 
 \ . W'ritimjfi in Suhmissionti. 
 
 § 781. It has ahcady been shown in wliut cases writ is essential 
 to deeds of submission and decrees-arbitral (c). Wherever writ is 
 re(iuired for the decree, the statutory solenniities must 1)0 ob- 
 served (/). But there seems no reason for excluding irregular 
 awards as to moveables inter rusticos or in re mercatoria, where a 
 formal submissi<jn is not entered into (j/). 
 
 § 782. All writings executed by the arbiters in the course (jf 
 the proceedings are probative without the statutory solemnities ; 
 because they are quasi judicial acts, and the circumstances in which 
 they are written leave almost no room for forgery. This holds not 
 only in regard to interlocutory orders on the parties, but as to pro- 
 rogations of the submission (A), and devolutions to an oversman (/); 
 although without these the arbiters or oversman respectively would 
 not have power to pronounce their decrees. 
 
 § 783. It is usual for arbiters before final decision to issue notes 
 of their intended judgment. But they are not obliged to do so ; 
 nor are they bound to pronounce decree in terms of the views which 
 their notes contain. As the notes, therefore, do not express a 
 concluded determination, they are not equivalent to a decree-arbi- 
 tral ; and the issuing of them during the subsistence of the arbitra- 
 tion does not authorise the arbiters to sign a decree in terms of 
 them after the submission has terminated {j). A fortiori, it is in- 
 competent to modify or control a ibrmal decree-arbitral by referring 
 to the preliminary notes {h). But it would seem that they may be 
 used for the purpose of correcting an error calculi in the decree (J), 
 and of ascertaining whether the arbiters proceeded on grounds 
 
 (rf) Non-el V. Ramsay, 1763, M., 12,290. {e) See §? 550, 559. 
 
 (/) Plalyburtou v. llalyburton, 1708, M., 16.970— Short v. Habkin, 1711, M., 16,867 
 (altering an carliiT juilgment in same case, M., 17,029; 4 B. Su])., 832) — Percy r. 
 Meikle, 25th November 1808, F. C— Lang i;. Brown, 1852, 15 D., 38. 
 
 (</) See II 559, 784, et seq. [h) Stewart v. Wathcrtonc, 1804, M., 16,911— 
 
 Earkahly v. Dalgairn's Tr., IGth June 1809, F. C— Gordon v. Monleith, 10th December 
 1812 (where the objection that untested prorogations were not probative of their date.'?, 
 was repelled), A B (no date), M., 17,010: contra, Sutherland, 1744, M., 652. 
 
 (i) Stewart v. Wathertone, sujyrM — Kirkuldy v. Dalgairn's Tr., supra — Contra, Heriot 
 V. Wight, 1780, M., 661. 16,906; Hailes, 849. S. C. {j) Lang r. Brown, supra. 
 
 (k) Supra, g 159. {I) Morrison v. Robertson, 1825, 1 W. S.. 143. 
 
 '1 H -1
 
 482 WIMTINGS /iV A'^" MERCATORIA. § 783- 
 
 whicli they were not entitled to entertain {m), or wlietlier tlieir 
 decree embraces the whole matters which were submitted to 
 them {n), — provided the decree itself is ambiguous on these 
 points.^ 
 
 VI. Of Writings in re mercatoria. 
 
 § 784. The expedition required in mercantile transactions, and 
 their general subjection to i\xQJus gentium, rather than to the laws 
 of individual states, have excepted writings connected with them 
 from the statutory rules as to authenticating deeds. This is a safe 
 pri\'ilege ; because this class of writings almost always take effect 
 before the evidence as to their authenticity is likely to be lost or 
 impaired by lapse of time ; while most of the matters which they 
 embody may be proved by parole evidence. On these grounds 
 documents in re mercatoria are valid, if merely subscribed ; and if 
 their authenticity is disputed, it maybe proved ^roM^ c^e^^^re (o). 
 As already noticed, they may be signed by initials ( p ) ; and sub- 
 scription by a cross or mark, with adequate proof of its genuineness, 
 is also competent (r). It is proper, but not essential, that the 
 initials or mark be adhibited before subscribing witnesses {s). 
 
 {m) Steele v. Steele, 22<1 June 1809, F. C. (w) Bell v. Halliday, 1825, 4 S., 
 
 286. (o) Mack. Obs. ou 1579, c. 80 (vol. i, p. 281), Obs. 3— Ersk., 3, 2, 24— 
 
 1 Bell's Com., 325— More, 405— Tait Ev., 120. {p) 1 Bell's Com., mb— Supra, 
 
 § 665. (r) 1 Bell's Com., 325— Bryan v. Murdoch, 1824, 3 S., 282; aflfd., 2 
 
 W. S., 668— Watson v. Hamilton, 1824, 3 Mur., '^U— Supra, g 607. 
 
 (s) So held as to initials; Shepherd v. Innes, 1785, M., 589; 16,818— Thomson v. 
 
 9 A holograph decree-arbitral is effectual ; the decree of a judicial referee is good, 
 though neither holograph nor tested, if it be signed by the referee. So the opinion of 
 counsel, returned on a mutual memorial, is as binding as a decree-arbitral, if signed 
 by the counsel; Eraser v. Lovat, 1850, 7 Bell's Appeal Cases, 171. In a late case 
 the whole Court considered the validity of a decree-arbitral, pronounced in England, by 
 an arbiter who was an Englishman ; it was not holograph, and was not authenticated 
 according to the law of Scotland. Several of the judges thought that, although it was 
 in general necessary that a decree-arbitral should be a holograph or tested instrument, 
 yet the parties might dispense with authentication by express or tacit consent, as in the 
 case of a judicial reference or mutual memorial to counsel, and that such consent was 
 implied in the case before the Court, chiefly from the circumstance that the arbiter was 
 an Englishman, and presumably unacquainted with the solemnities of Scotch deeds. 
 But the majority of the Court were of opinion that if the deed would not be held valid 
 in England, it could not receive effect in Scotland ; but that if valid by the law of Eng- 
 land, its validity would bo recognised in tlie Scotch Courts, because it was enough that 
 the deed was valid secundum lec/em loci execulionis; E. of Hopetoun v. Scots Mines Co., 
 1856, 18 D., 739.
 
 §786. \\\{V\'\::r,'r^ IX RE MERCATORTA. 483 
 
 § 758. Professor licll lays down that one of tlie privileges of 
 mercantile writings is, that although not signed hy witnesses they 
 prove (heir dates {I). This is correct as to bills and notes; but 
 with regard to other writings in re mercatoria it seems to hold only 
 where the (lucstion relates to the ordinary mercantile purposes for 
 which such documents are granted If the writing is alleged to 
 have been executed on deathbed in order to defeat the granter's 
 heir, — or on the eve of bankruptcy in order to create a fraudulent 
 preference, — or to have been executed during minority, but dated 
 after the party came of age — it seems not to be pro])ative of its date ; 
 which must therefore be adminiculated by the party founding on 
 
 it («)• 
 
 § 786. The documents privileged as in re mercatoria arc thus 
 enumerated by Professor Bell (a:), " bills, notes, and checks upon 
 bankers, orders for goods, mandates and procurations, guarantees (y), 
 oticrs and acceptances to sell or buy wares and merchandise, or to 
 transport them from place to place ; and in general all the variety 
 of engagements, or mandates, or acknowledgments, which the infi- 
 nite occasions of trade may require." As it is thus writings really 
 connected with trade, and not all writings executed by merchants, 
 which are privileged, there is considerable difficulty in determining 
 whether some waitings which are collaterally connected wth mer- 
 cantile transactions are included. Of this nature are composition- 
 contracts (2), and guarantees for repayment of advances by a 
 bank (a) ; as to both of which writings there is considerable doubt 
 whether they are effectual without the statutory solemnities.^*' 
 
 Shiell, 1729, M., 16,810— Thomson v. Crichton, 1676, M., 16,968; and as to antlienti- 
 cation by a mark, Ker v. Kiddell, 1803, Hume D., 50— Craigie v. Scobie, 1832. 10 S., 
 610— Brown 1;. Johnstone, 1662, M., 16,802 — Kennedy v. Watson, 25th May 1816, F. C. 
 See Stewart v. Russell, 11th July 1815, F. C. (<) Bell's Com., supra. 
 
 (m) Skene v. Lumsden, 1662, M., 12,618— Row v. Dick, 1693, M., 16,699— Ruther- 
 furd V. Hay, 1739, Elch., " Writ," No. 7— Winton v. Gibson, 1831, 9 S., 662— Dyce v. 
 Paterson, 1847, 9 D., 1141— Compared with Currier v. Halliburton, 1683, M., 12,625 ; 
 and see infra, \ 806, a^s to how far bills are probative of their dates. 
 
 (x) 1 Bell's Com., 325. (y) As to guarantees, see supra, § 600 (1). 
 
 (z) See supra, § 777. (a) See supra, § 600 (4). 
 
 '0 Ail g\mrantee3 must be in writing, and must be subscribed by the party granting 
 tlio guarantee, or by some person duly authorised by him ; 19 and 20 Vict., c. 60, g 6. 
 Acknowledgments for cash advances not connected witli any mercantile transaction, 
 were hold by Lord Mackenzie not to be writings in re mercatoria; and as they were not 
 duly tested or holograph, they were held improbative, and ineftectuid to constitute 
 obligation, though the subscription to them was adniitteil ; Hamilton's Executors r. 
 Struthors, 1858, 21 D., 51. Notes obliging tlic grantor to deliver goods to the bearer
 
 484 DOCQUETED ACCOUNTS. § 787- 
 
 § 787. Discharges of mercantile accounts and for money paid in 
 settlement uf mercantile transactions are privileged ; and in con- 
 stant practice they are authenticated merely by subscription. 
 
 YII. Of Docqueted Accounts. 
 
 § 788. The practice of settling business transactions upon sub- 
 scribed or docqueted accounts without regular deeds, has rendered 
 them an exception from the statutory rules. They have for a long 
 time been sustained Avithout the statutory solemnities {h). Thus 
 an account between the collector and sub-collector of a public tax, 
 bearing a docquet not holograph, but subscribed by the latter, was 
 found probative against him of the sum which it contained (c). 
 So in an action by an executor for the price of 150 bolls of grain 
 furnished by his ancestor to certain millers, their receipt subjoined 
 to an articulate account was received as probative, although it was 
 neither holograpli nor tested {d). Thus, also, an account for furni- 
 ture delivered to a person deceased was held probative, although 
 only signed by him (e). And a minute specifying the balance 
 
 (6) Ersk., 3, 2, 24— Tait Ev., 122. Cases in Mor., 16,959, 60, 61, and 17,020. 
 (c) Stewart v. Agnew, 1680, M., 12,624. {d) Leslie v. Millers, 1714, M., 
 
 16,978. (e) Maclurg v. E. Dalhousie, 1678, M., 16,970. 
 
 were held to Le writings in re mercaioria; Bovil v. Dixon, 1854, 16 D., 619— Dimniack, 
 Thomson, & Firmstone v. Dixon, 1856, 18 D., 428. But Lord Chancellor Cranworth 
 was of opinion that they were ineffectual at common law; Bovil v. Dixon, 1856, 3 Mac- 
 queen, 1, 13 — see sM/jra, g 651, note 3. A document expressing the ohligatiim of the 
 granter to deliver goods to the order of a party named, was held not to he a writing 
 in re mercaioria, because it appeared to have been inade to create a security ; had it 
 passed between parties to a sale, it would probably have been regarded as a writ in re 
 mercaioria; Commercial Bank v. Kennard, 1859, 21 D., 864—31 Scot. Jur., 478. 
 Negotiability by indorsation is not, it is thought, one of the privileges of a writing in 
 re mercaioria. In the opinion of Lord Chancellor Cranworth in Bovil v. Dixon, supra, 
 that privilege, apart from special usage of trade, is confined to bills, promissory-notes, 
 and bills of lading; supra, \ 651, note 3. Thus a deposit receipt was thought not to be 
 a negotiable document, an indorsation on it being merely a mandate ; Barstow v. Inglis, 
 1857, 20 D., 230— Opinions of Lords Neaves and Ardmillan, see ante, § 367, note i. In 
 Edinburgh and Glasgow Bank v. Simpson, 1858, 20 D., 1248, Lord Ardmillan (Ordi- 
 nary) held the indorscr of a bank draft liable to the indorsee ; the point was not decided 
 iu the Inner House. Bonds and mortgages by railway companies may be transferred 
 by an indorsement in the statutory form ; 24 and 25 Vict., c. 50. The property of the 
 goods acknowledged by a bill of lading is transferred by indorsation to the indorsee. 
 All rights under a bill of lading vest in the indorsee or consignee, and he becomes 
 subject to all liabilities, in respect of such goods, as if the contract had been made with 
 himself; 18 and 19 Vict., c. Ill, § 1. But the statute does not affect any right of stop- 
 page in transitu or right to claim freiglit ; supra, ? 298, note ".
 
 §701. I )OCQUETED ACCOUNTS. 485 
 
 brought out against a client in his law-agvnt's account, lieiiig .suit- 
 scribed ]>y the former, is proof that he examined and approved of 
 tlie account (/). 
 
 § 781). As this privilege is designed only to cover accounts and 
 relative minutes and docquets in mercantile and other business 
 transactions, it does not apply to an acknowledgment apitended to 
 an account of advances of money (g), unless made by a banker. 
 Where, however, an account between an uncle and a nephew (both 
 of whom were farmers) consisted partly of furnishings for stocking 
 a farm, and partly of money advances, the Court sustained a doc- 
 quet appended to it, wdiich was signed, but not holograph or pro- 
 bative, and which acknowledged the del)t and promised to pay 
 it (h). 
 
 § 790. Accounts which come within the privilege are sustained, 
 if authenticated by initials, or by a cross or mark (i). Even un- 
 signed holograph docquets to accounts are valid (k). And a memo- 
 randum by a debtor, holograph but unsubscri1)ed, found in the 
 creditor's repositories, and mentioning the articles in a prescribed 
 account, was held to prove that the account was resting-owiug (T). 
 In another case a scroll account, holograph of a landlord's factor, 
 but not signed, was held to prove that the payments which it men- 
 tioned had been made by the tenant, to whom it had been delivered 
 by the factor (/»). But the Court would not sustain an account 
 on some loose sheets of paper, where the merchant in his oath on 
 reference admitted it to be holograph, but added that the debt was 
 not resting-owing (n). 
 
 § 791. An account wdiicli has evidently been filled in above 
 the debtor's signature will be rejected, unless there be clear proof 
 that it was inserted with his consent (o).^^ 
 
 (/) Mackenzie v. Mackenzie's Tr., 1831, 9 S., 730. But the client was held not to 
 be foreclosed from examining the items of the account. He would not have been, even 
 if the docquet had been holograph. (g) Laidlaw v. Wilson, 1844, 6 D., 630 — 
 
 See also Alexander v. Alexander, 1830, 8 S., 602. (A) Stephen v. Pirie, 1832, 
 
 10 S., 279— See E. Northesk. 1671, M., 10,967. (i) Watson v. Hamilton, 1824. 
 
 3 Mur., 484— Supra, § 067. {k) Stair, 4, 42, 3 (6). (/) Donaldson r. 
 
 Murray, 15th Jan. 1766, M.. 11,110. {m) Ainslie v. Chisholm, 1696, M., 12,626. 
 
 (n) Nasmyth t-. Bower, 1665, M., 12,621. (o) Campbell v. Grant, 1843. 5 
 
 D., lUd— Supra, § 672. 
 
 11 M'Larcn v. LiddeUV Trs., 1860, 22 D., 373— Same case. 1862, 24 I)., 577.
 
 48(j BILLS AND PROMISSORY-NOTES. § 792- 
 
 VIII. Of Bills and Fromissory-Notes. 
 
 § 792. Being in tlieir origin, and still in their most important 
 use, international documents, and being constantly required in the 
 course of commercial transactions, bills possess all the privileges of 
 ■writings in re mercatoria. The privileges of bills have been ex- 
 tended by statute to promissory-notes {p ) ; which will in the fol- 
 lowing sections be treated under the general term Bills. 
 
 § 793. In daily practice these documents are enforced both by 
 way of action and of summary diligence, if they are signed by the 
 parties without mtnesses named or subscribing. Bills authenti- 
 cated by initials (r), or a mark (s), are also valid, either with or 
 without subscribing witnesses (/'); but as their genuineness when so 
 authenticated requires to be proved, they do not warrant summary 
 diligence (li)}^ 
 
 § 794. Bills by persons wdio cannot write sliould be authenti- 
 cated by two notaries and four witnesses, designed in the notarial 
 docquet {x). And as that mode of authentication is probative in 
 AATitings which require the statutory solemnities, bills so subscribed 
 are warrants for summary diligence (y). Where a bill by a person 
 who cannot write is signed by one notary before two witnesses 
 named and designed in the docquet, it will be sustained in an ac- 
 tion {z) ; but it seems not to warrant summary diligence («). If a 
 bill granted by a person who cannot write is signed by one or two 
 notaries without witnesses, it is not probative (b) ; but it will be 
 sustained on proof of authority ; because, as already mentioned, a 
 bill to which the grantor's name has been written by another person, 
 although not a notary, is binding, provided there be clear proof that 
 the party authorised the subscription, or adopted or homologated 
 the bill (c). 
 
 § 795. In England a party is effectually bound by a holograph 
 
 (p) 12 Geo. Ill, c. 72, § 36, made perpetual by 23 Geo. Ill, c. 18, § 55. 
 
 {r) Supra, ^ 665. (s) Supra, § 607. {t) Sujjra, § 667. 
 
 (m) Supra, 'i 668. {x) Sujjra, ^ 673, et seq. {y) Tliomson on Bills, 654. 
 
 (z) Dinwoodie v. Johnston, 1737, M., 1419; 5 B. Sup., 888; Elch., "Bill," 16 S. C. 
 See this case noticed in Buchanan v. Duncan, 1765, M., 1451 ; 16,985. 
 
 (a) Thomson, supra. {b) Fyfe v. Bean, 1762, 5 B. Sup., 887 — Buchanan v. 
 
 Duncan, supra. (c) Supra, ^ 568, 671. 
 
 12 Ko acceptance of a hill, made after 31st December 1856, shall bind any person 
 unless it be in writing on the bill; 19 and 20 Vict., c. 60, § 11. Serjeant Byles holds 
 that a provision to the same effect in the corresponding English act, 19 and 20 Vict., 
 c. 97, would not be held to extend to foreign bills accepted abroad, if, by the law of 
 tiie place, a written acceptance was not necessary ; Bylcs on Bills, 8tli edition, 176.
 
 §798. 151 M.S AND PROMISSORY-NOTES. 487 
 
 note coiit.'iiiiiiig' his iiaiiic in the body, but unsu]).scrihed {d). Such 
 a document seeni.s ul.so to l)e binding in this country (e). But it 
 would not warrant suninmry diligence ; because the fact of h(jh)- 
 graph, on which its valitlity dei)ends, requires to be proved. 
 
 § 796. At one time bills signed blank in the creditor's name 
 were licld to fall under the act 1G96, c. 25, against blank \vrits. 
 But it has for a long time been settled law that one who signs his 
 name upon a blank bill stamp, authorises the party who holds the 
 "skeleton bill" to hi! in al>ove the signature whatever sum the 
 stamp will carry (/) ; and (unless where there is fraud) he cannot 
 object that the party appearing as payee was not the person he in- 
 tended ((/), or that he did not get notice of the bill being com- 
 pleted {h). 
 
 § 797. A bill may be signed by the drawer at any time before 
 being produced in judgment (/) ; and it is valid, if signed by him 
 after both the acceptor and the payee have died (A-). And if the 
 drawer in a bill payable to himself, is dead, liis lieir or confirmed 
 executor may sign it (/). But it is not settled whether summary 
 diligence can pass on a bill so completed (m). 
 
 § 798. A new holder into whose liands a bill has come, Idank 
 in the drawer's signature, may sign it as drawer («) ; and he may 
 then use summary diligence on it (o), as well as plead the presump- 
 tion of onerosity {p ). But where a bill, blank in the drawer, was 
 accepted payable to a person named, who handed it blank to one 
 of his creditors (instead of signing as drawer and indorsing it), 
 and the creditor signed it as drawer, it was held not effectual in 
 competition with an arresting creditor of the payee (r). 
 
 {d) Taylor v. Dobbins, 1 Strange, 399— Chitty on Bills, 163— Bayley on Bills, 38. 
 
 {e) Supra, iToSi. (/) See «wjora, ?§ 648, 651. (^7) Thomson, Still, & 
 
 Co. V. Gall, 1805, Hume D., 53— Drummond v. Campbell, 1813, ib., 71 — Smith v. Tay- 
 lor, 1824, 2 S., 755. (A) Lyon v. Butter, 1841, 4 D., 178. («) 1 Bell's 
 Com., 396 — Ferguson v. Blair, 1758, M., 1443, and cases in following notes. 
 
 (k) Shaw V. Farquhar, 1761, M., 1444— Cathcart v. Dick's Reps., 1748, M., 1439. 
 
 {I) 1 Boil's Com., 391— Fair v. Cranstoun, 1801, Hume D., 46 ; M.. 1677, S. C— 
 M'Bean v. M'Pherson, 1806, Hume D., 57 — Macdonald's Tr. v. Raukine. 13th June 
 1817, F. C— Over-ruling Robertson v. Bisset, 1777, M., 1445; 1676; and M., " Bills," 
 Appx., No. 6, S. C. (/«) Professor Bell (1 Com., 391) considers that summary 
 
 diligence is competent ; and tliis view is favoured by M'Bcan v. M'Pherson, supra. But 
 in Fair v. Cranstoun, supra, Lord Eskgrove inclined to doubt upon the point. 
 
 (»i) Thomson, Still, & Co. v. Gall, 1805, Hume D., 63— Disher v. Kidd, 1810, ib., 
 64 — Drummond v. Campbell, 1813, ib., 71— Smith v. Taylor, 1824, 2 S., 755— Grassick 
 t'. Farquharson, 1846, 8 D., 1073. (0) Cases in preceding note. 
 
 (p) Thomson, Still, & Co. v. Gall, sujira. (r) Grunt u. Cruikshanks. 1760. 
 
 M., " Bills, " Appx., No. 1. But see Thomson on Bill.s. 57.
 
 488 BILLS AND PROMISSORY-NOTES. § 790- 
 
 § 799. Action, but nut sniumary execution, will also be sus- 
 tained on a bill on which no drawer's name appears (s). This was 
 held where the payee was a third party named in the bill (J) ; where 
 a bill bearing the drawer's name in the body (but not written by 
 liim) was indorsed by him, and bore receipts for payments to ac- 
 count (u) ; where a bill indorsed by the drawer was blank in his 
 name and signature (x) ; and where the drawer's name was set 
 forth in the body, but without subscription or indorsation (y). Even 
 where none of these circumstances identify the drawer, tlie holder 
 of a blank bill is entitled to action upon it, his possession presuming 
 a just title (z). 
 
 § 800. A bill accepted blank, however, may be rendered in- 
 operative through fraud of the holder or those with whom he is in 
 concert (a). But the Court jealously refuse to extend this excep- 
 tion (b). 
 
 § 801. After tlie drawer's subscription has been adhibited, it 
 cannot be deleted or materially altered, without destroying the bill ; 
 and if there are several drawers, deleting the signature of one frees 
 them all, because it changes the relative rights under the original 
 contract. Thus where Kilpatrick and M'Leay were joint drawers, 
 and Watson was acceptor, of a bill for Watson's accommodation, 
 which was also indorsed by the drawers and by Watson's brother ; 
 and where Callender at the request of Watson's brother indorsed it, 
 and, supposing that M'Leay had signed as drawer in mistake for 
 indorser, he deleted M'Leay 's subscription as drawer and handed 
 the bill to Watson's brother to discount it at a bank ; and where 
 Watson having failed, and Callender having retired the bill raised 
 action for the amount against Kilpatrick, M'Leay, and Watson's 
 brother — the Court sustained their defences founded on the deletion, 
 and disregarded Callender's answer, that that had been done in bona 
 
 («) In M'Donald's Tr. v. Rankin, 13th June 1817, F. C, "the question whether ac- 
 tion is competent on a bill found in the repositories of a defunct, blank in the drawer's 
 name, was considered by the Court as already quite settled;" and their Lordships would 
 not order answers on the point, " lest it might be conceived that they entertained a 
 doubt upon it." (t) Drummond v. Drummond's Crs., 1785, M., 1445. 
 
 (m) Hare v. Geddes, 1786, M., 1446. (x) Ogilvie v. Moss, 1804, M., Appx., 
 
 " Bills," 17— A B, 1758, 5 B. Sup., 867. («/) A B, 1750, M., 1442. 
 
 (z) M'Donald's Tr. v. Rankin, s?//j>ra— Fairlie v. Brown, 1824, 3 S., 5— Elder v. Mar- 
 shall, 1830, 9 S., 133. (a) Hood v. Darling, 1808, Hume D., 59— per curiam in 
 Lyon V. Butter, 1841, 4 D., 178— and in Grassick r. Farquharson, 1846, 8 D., 1073— 
 Thomson on Bills, 56, 80. (h) Lyon v. Butter, supra — Grassick v. Farquharson, 
 supra — Thomson, sr/pra — Bayley, 40.
 
 § 802. BILLS AND PKOMISSOIiY NOTES. 489 
 
 Jide and for the purpose of rectifying a supposed error (t). Thus, 
 also, where a bank agent, who had discounted a l)lank bill, filled in 
 his own name as drawer and indorsed the bill to the bank ; and 
 where on their re-indorsing it U) him to operate payment, he deleted 
 his own name as drawer and got the person who had been originally 
 intended to l)e drawer to sign as such and as first indorser ; — in an 
 action by the bank against the acceptor, the ])ill was held to be null 
 both at common law and under the Stamp Acts (ri). But where 
 the holder of a bill blank indorsed for value (being an ignorant 
 person;, instead of indorsing it, as he should have done, wrote his 
 name on tlie face of the bill, so as ex facie to be a joint drawer; 
 and where, on the 1»ill being protested, the notary, observing the 
 irreguhirity, deleted the subscription and filled up the blank indor- 
 sation with the holder's name, the Court held that the bill was good 
 even as a warrant for summary diligence, because there was no al- 
 teration on the bill as originally constituted, but only a correction 
 of an accidental error which had come upon the bill after it had 
 been put into the circle {c)P 
 
 § 802. It has been held several times that a party by signing 
 a bill or note, in such a manner that he does not appear as a drawer 
 or indorser, will be liable as one of the obligants (/). Thus where 
 a note bearing, "I i)r()mise to pay to Don," was subscribed by A. 
 Watt, and bore on the back J. Watt's signature without an ind(jr- 
 sation, J. Watt was held a joint obligant in a question Avith Don {g). 
 Thus, also, where a bill accepted by two persons was signed on the 
 back by a third, who was not drawer, payee, or indorsee, the Court 
 held him jointly bound {li). And a bill addressed to A and B as 
 
 (c) Callentlor v. Kilpatrick and others, lOtli December 1812, F. C. ; Hume D., 70 ; 
 S. C. {d) Floraing v. Scott, 1823, 2 S., 44(5— Yoiin<<'s Tr. i'. Paisley Bauk ami 
 
 Scott (same case), 1831, 9 S., 574; contra, Lumsden v. Marr, 180G, Hume D.. 55. 
 
 (e) Russel v. Mill, 1810, Hume D., 63. See also Grieve v. Miller, 1817, ib., 68. 
 
 (/) 1 Bell's Com., 400. The learned Professor questions this doctrine. 
 
 {g) Don V. Watt, 26th May 1812, F. C. [h) Watters v. Barrie, 7th March 
 
 1818, F. C, noted in Hume D., 68, S. C. 
 
 i-i A bill was blank indorsed by the drawer and by the holder, and discounted by tho 
 holder at a bank. The bank clerk, by mistake, wrote above the names of tho drawer 
 and holder a special indorsation to the bank, so as to convert the blank indorsation into a 
 special indorsation. The words were afterwards deleted ; the holder ultimately paiil 
 tho bill, and raised an action on it against the acceptor; who pleaded, that as the bill 
 had been specially indorsed to the bank, and never indorsed by the bank, the holiler 
 was not indorsee; but the action was sustained on proof tliat the special indorsation 
 was a mistako by the Vtank clerk ; Mackenzie v. Dott. 18G1. 23 D., 1310.
 
 490 . BILLS AND PROMISSORY-NOTES. § 802- 
 
 acceptors, and signed by thoni "as acceptors," and by C as cautioner 
 for them, was held good against C as a principal obligant in a (ques- 
 tion \Yitli the creditor («'). This case illustrates the rule that in a 
 question with the holder all acceptors are principal debtors, the 
 subscription of any of them as cautioner being held only to regulate 
 their relief among themselves (Jc). 
 
 § 803. AVhcrc a party wlio meant to be indorser signed on the 
 face of the bill, and thereby appeared as joint drawer, the Court 
 suspended a charge against him at the instance of the drawer, the 
 crowded state of the bill and other circumstances satisfying them 
 that the signature had been by mistake (/). 
 
 § 804. A bill addressed to two persons, and accepted by only 
 one of them, who had written the bill, was once sustained on the 
 ground that every one of any number of acceptors is liable m soli- 
 dum, and that it Avas the duty of the acceptor who signed, and not 
 of the holder, to get the bill completed with the other signature, if 
 he wished to have relief to the extent of half the obligation under- 
 taken by his acceptance (m). 
 
 § 805, Erskine (n) lays down that, both by our law and the 
 general custom of trading states, bills without a date are null, not 
 only as bills, but even as grounds of action. As, however, he wrote 
 before skeleton bills had been sustained, his authority is not of much 
 weight. Now-a-days there seems to be no doubt that bills payable 
 on a day named are valid without the date of drawing or accept- 
 ance ; for it would be strange if writs so highly privileged as bills 
 were null on account of wanting what is not essential to ordinary 
 writings (o). It is even thought that a bill blank both in date and 
 term of payment may found action against the acceptor ; because 
 it is as complete evidence of his obligation as a skeleton bill (p).-^* 
 
 ({j M'Dougall V. Foyer, 13th February 1810, F. C. (k) 1 Bell's Com., 
 
 399— Thomson on Bills, 14— Campbell v. Gibson, 1753, Elch., "Bill," No. 54— M'Dou- 
 gall V. Foyer, supra. [l] Grieve v. Miller, 1817, Hume D., 68. See also 
 Russel V. Mill, 1810, Hume D., G3, supra (e). (w) Gordon v. Sutherland, 
 1761, M., 14,677. («; Ersk., 3, 2, 26. (o) Thomson, 61 — Ivory's 
 Note, 65, to Ersk., supra — Tait, 119. There may, however, be a question under the 
 Stamp Act, where the stamp will only carry a bill at a short date. Ivory's Note, ib. 
 
 (p) In England " a date is not in general essential to the validity ; for when a bill 
 has no date, the time, if necessary to be inquired into, will be computed from the day it 
 was issued or made ; and if a bill of exchange be made payable two months after date, 
 and no date be expressed, the Court will intend it to be payable two months after the 
 day it was made " ; Chitty on Bills, 148. 
 
 '^ Tlu.- date of a bill or promissory note issued without date may be proved by parole,
 
 § 807. BILLS AND PROMISSORY-NOTES. 491 
 
 § 80G. Bills arc i>rol>utive of their dates (r). This is even the 
 rule when a bill is alleged to have heen falsely dated for the pur- 
 pose of giving an undue preference to a particular creditor of the 
 grantor ; in which case the party making such an averment must 
 stand pursuer of the issue (s). But circumstances which cast sus- 
 picion on the onerosity of the transaction will shift the burden of 
 proof (/). Tlius where the mother-in-law of a l)ankrupt claimed to 
 vote in the election of a trustee on his sequestrated estate, upon a 
 promissory-note binding the grantor to pay " sixty days after sight" 
 a certain sum for value received in cash ; and where, although the 
 date written on the document was two years befcjre the sequestra- 
 tion, the "noting" upon it was only dated three days previously; 
 the Court refused to sustain the bill H'tr. prima facie proof of a debt 
 which would entitle the creditor to vote (w). In another case, 
 where a disposition by an insolvent party of his whole assets in fa- 
 vour of certain of his creditors was challenged by a creditor not 
 named in it, who, founding on a bill dated the same day as the dis- 
 position, alleged that the latter had been granted to his iirejudice, 
 the Court would not apply the presumption that the bill had been 
 accepted on the date marked on it (w^hich was the date of drawing), 
 although the parties to it resided in the same place, and there was 
 no proof that any interval elapsed between the drawing and accept- 
 ance. The ground of decision probably was, that the coincidence 
 of the bill and disposition in point of date raised some doubt upon 
 the bona fides of the transaction as a bill granted on that day, and 
 therefore its date required to be adminiculated {x). 
 
 § 807. In the same way bills are probative of their dates when 
 they are challenged on the ground of deathbed (?/). But as this 
 rule is designed for protecting genuine mercantile transactions, it 
 seems not to hold where there is ground for suspecting that the bill 
 is a device to defeat the law of deathbed ; as, for example, where the 
 
 (r) Ersk., 3, 2, 25—1 Bell's Com., 325— Thomson on Bills, 60— Tait Ev., 115. 
 
 (s) Authorities in preceding note. See supra, § 353 — Thistle Bank «>. Leny, 14th 
 May 1794, Bell's Folio Ca., 5. {t) See supra, U 340, 357. 
 
 (m) Anderson i-. Guild, 1852, 14 D., 866. (a-) Man v. Walls, 1702, M., 
 
 1006 ; 1083. See this case questioned in 2 Bell's Com., 185. (y) Ersk., 3, 
 
 2, 25— Bankt., 1, 13, 20—1 Bell's Com., 325— Thomson on Bills, 60— Tait Ev., 116— 
 Kennedy v. Arbuthnot. 1725, M., 1477; 12,015, S. C. — Johnstone f. Strachan, 1731, 
 M., 12,616. 
 
 provided " that summary diligence shall not be competent on any bill or note is.^ucd 
 without a date " : 10 and 20 Vict., c. f-O, ? 10.
 
 402 INFOEMAL WRITINGS REFERKED TO § 807- 
 
 granter is not in trade and the grantee is a near relation, or where 
 there is no trace of any transactions between the parties which 
 could have resulted in a bill for value. In such cases it is thought 
 that the burden of proof would be reversed, and that the date of the 
 bill, like that of a holograph deed, would require to be proved by 
 the party founding on it (z). 
 
 IX. 0/ Informal Writings re/erred to in Probative Deeds. 
 
 § 808. It has already been seen that a deed may be construed 
 in connection with other writings to which it refers (a). The ques- 
 tion remains, whether it is necessary in such cases that the writing 
 to which the reference is made should be holograph or probative. 
 
 On the one hand, if a deed refers to a writing, which is then in 
 existence, as containing explanations, details, or the like, regarding 
 the matters set forth in the deed, the reference will not be voided 
 in consequence of the document referred to being informal ; but the 
 probative quality of the main deed will be communicated to the 
 subsidiary document so far as that is necessary for the purpose of 
 the reference. Thus it is the constant practice in contracts for ex- 
 tensive works to refer to scales of prices, specifications of the de- 
 tails of the work, and the like ; which are merely signed by the 
 parties ^vithout bearing the statutory solemnities ; and documents 
 so referred to are held to be imported into the main deeds. Thus, 
 also, where the obligations on one of the parties, in a deed consisting 
 of two separate sheets, were written on one page, which was signed 
 by the parties and witnesses, l)ut without the writer and witnesses 
 being named or designed ; and where the other party's obligations 
 were on another page, which was both signed and probative in 
 terms of the statute 1681, c. 5, and in which the parties bound 
 themselves to "perform the above and within articles"; the Court 
 sustained the whole deed, " in respect the last page was relative to 
 the first" (6). On the same principle, where a person by a proba- 
 tive testament appointed an executor " subject to the payment of 
 such bequests as I may instruct him to jmy in a letter signed by 
 
 (z) Ersk., su2}ra — Tait, supra — See supra, I'i 340, 357, 760. See Norris v. Wood, 
 1743, M., 446G; 12,017, S. C, where promissory-notes granted in Ireland were held not 
 to prove their dates when challenged on the head of deathbed. But this case was de- 
 cided before the privileges of bills liad been extended to promissory-notes ; see Tait, 
 supra. (a) Supra, § 180, et seq. (6) Hamilton v. Moir, 1710, M.. 
 
 17,028, 4 B. Sup., 814.
 
 § 809, IN PROBATIVE DEEDS. 493 
 
 iiic of this date to the several [jcrsoiis therein named," declaring 
 that after tliese persons had l)een i)aid, tlie wliolc residue should 
 helong to the executor ; and where the testator died two days 
 afterwards, leaving- the will and a letter within it containing direc- 
 tions to the executor to pay certain legacies, which letter bore the 
 same date as the will, and was signed hy the testator, but was not 
 probative or hohjgraph ; and where the legatees offered to prove 
 that it had been signed simul ac semel with the will ; the House of 
 Lords, reversing the decision of the Court l)elow, held that the will, 
 by referring to the improbative letter, made it effectual ; and they 
 accordingly directed the Court of Session to send the case to a jury 
 on the question, whether the letter founded on w^as the one referred 
 to in the will (c). On this principle, also, where certain directions 
 by a truster to his trustees were contained in a document signed 
 but not probative, and having appended to it an additional direction 
 in the truster's handwriting, which commenced with the words " I 
 add to this," &c., and was signed by the truster, and concluded 
 thus, " wrote by myself this part of it," the Court held the whole 
 document to be effectual (d). And a person may make a docu- 
 ment written by another person effectual by adding to it, in his 
 own handwriting, tlie words, " I agree to the above," or the like, 
 and subscrilting tliem (e). On the same principle, where a party 
 left two hidograpli codicils of different dates, but written on the 
 same piece of paper, only the last of them being signed, the Court 
 held that the signature to it was sullicient to validate the first codi- 
 cil also (/). 
 
 § 809. Even where the writings arc separate, it is not essential 
 that the document to which the reference is made should be sub- 
 scribed by the party ; because the only object of the signature is 
 to identify the separate document as that at wliich the reference is 
 pointed ; and the fact of the identity may be ascertained by extrin- 
 sic proof, if it is disputed (g). Accordingly, where a missive on 
 which Anderson entered a certain farm took him bound to the con- 
 ditions set forth in the missive of Wilkins, who was tenant in an- 
 other farm on the same estate, and whose missive referred to cer- 
 
 (c) Inglis V. Harper, 1831, 5 W. S., 785; reversing 6 S., 8G4. (d) M'lntyre 
 
 V. Macfarlano's Tr., 1st March 1821, F. C. (e) Bryson r. Crawford, 1833, 12 
 
 S., 39. (/) Gillespie v. Donaldson's Tr., 1831, 10 S., 174, noticed supra. 
 
 § 768 iff) See "Wilson v. Glasgow and S. Western Ky. Co., 1851, 14 D., 1 
 
 —Aberdeen Ry. Co. r. Blaikie, 1851, 13 D.. 527— Gordon v. Andersons, 1828, 3 W. S.. 
 1— Russell r. Fraser, 1835, 13 S., 752— Sec also authorities cited supra. I 185.
 
 494 INFORMAL WRITINGS REFERRED TO § 809- 
 
 tain articles and conditions drawn up by the landlord for the diife- 
 rent farms on his property, and where Anderson, four years after 
 his entry, signed a draft lease which referred to these conditions, 
 they were held to be binding upon him, although he had not sub- 
 scribed them, and although he alleged that he was not aware of 
 their terms (h). 
 
 § 810, On the other hand, when a trust-deed or similar writing 
 refers to a paper of directions to be prepared under the grantor's 
 hand at some future date, it is held to mean a document liologTaph, 
 or authenticated in terms of the statutes ; and a WTiting merely 
 signed by the party is ineffectual (i). Thus where a testator execut- 
 ed a regular trust-settlement, in which he directed his trustees to 
 apply the residue of his estate to such purposes as he should point 
 out by any deed, letter, or memorandum of instructions to be exe- 
 cuted by him at any time during his life, or even on deathbed ; and 
 where he afterwards, with the intention of exercising that reserved 
 power, signed a codicil which was neither holograph nor tested ; 
 the Court held that the document was invalid and could not receive 
 effect as a testamentary writing (J). They distinguished between 
 such a case and that of Inglis v. Harper (k), where the informal 
 \\Titing, being in existence, was imported into the probative deed 
 by a reference. This distinction is also illustrated by a previous 
 case, where a formal trust-deed directed the trustees to " hold any 
 additional directions which I may give them as to the disposal of 
 my property by a writing under my hand, as part of this trust- 
 deed" ; and where on the same paper as the deed there was written 
 a codicil which directed the trustees to pay an additional legacy, 
 and which was signed by the truster, but was not holograph or test- 
 ed ; and where, about a year after the date of the trust-deed, the 
 truster executed a codicil which was written upon a separate paper, 
 and was regularly attested ; and to which a short codicil was sub- 
 joined containing a bequest to another legatee, but only signed by 
 the truster, without being holograph or tested. The Court held 
 that oidy the trust-deed and the probative codicil were valid ; and 
 they refused to sustain the other two codicils, although there was 
 no doubt of the genuineness of the subscrijitions to tliem, and al- 
 
 (A) Gordon v. Anderson, 1828, 3 W. S., 1. («) See the cases on this point 
 
 collected and analysed in 1 Ross Lea. Ca., 415, et seq. As to writings formal by the 
 law of the party's foreign domicile at the time, see cliapter on foreign deeds, infra, 
 \ 1024, et seq. (j) Rankine v. Reid, 1849, 11 L>., 543. (k) Supra, (c).
 
 §811. IN rUOBATIVE DEEDS. 495 
 
 tli()U<^ii the one appended tu the trust-dec<l hud been signeil the 
 day after that document, and the other had been signed the same 
 day as the codicil to which it was annexed (0.^^ 
 
 § 811. In this class of cases a distinction must also be drawn 
 between a reference in one document to another for the purpose of 
 incorporating its terms, and a mere narrative or incidental state- 
 ment in a deed that the granter had subscribed another deerl with 
 certain stipulations. Such a statement does not give validity to 
 the deed referred to; which will therefore be held null, if it is not 
 holograph or authenticated in terms of law (m). 
 
 {/) Dundas v. Lewis, 1807, Hume D., 917 ; M., " Writ," Ai)px., No. 6, S. C. The 
 case of Melvin v. Nicol, 1824, 3 S., 31, as reported, would seem to go agaiust this prin- 
 ciple, since a letter by a testator, dated sixteen years after the will to which it referred, 
 was sustained as directing the executor to pay certain legacies. But the letter was 
 holograph ; see the case noticed by Lord Wynford in Inglis v. Harper, supra, 5 W. S., 
 794. (to) See Duff v. E. Fife, 1828, 3 Mur., 497 ; 4 S., 385 ; aflfd., 2 W. S., 166 
 
 — Boswell V. Boswell, 1852, 14 D., 378— Uniuhart v. Urqnhart, 1851, 13 D., 742; affd., 
 14th July 1853. 
 
 1* Recent decisions seem hardly to warrant the broad distinction drawn in the text 
 between improbative deeds prior in date to the probative trust-deed in which they are 
 described, or of the same date, and writings executed after the probative deed. The 
 principle established by recent cases seems to be, that if a party convey his estates to 
 trustees by a probative trust-disposition and settlement, he may competently declare in 
 that deed what form of writing shall be held an authentic expression of his instructions 
 to his trustees ; and writings executed in that form will be effectual though neither 
 holograph nor tested ; and they may be effectual even although not signed. The trus- 
 ter can make the law as to the authentication of such writings for himself, — and wliat 
 is required is, not that they should be probative writs, but that they should be identified 
 as those described in the trust-deed, if of earlier date ; or as those intended in the trust- 
 deed, if of later date. On the other hand, if a truster provide additional formalities, 
 such as sealing, besides the Scotch statutory formalities, as requisite to the due authen- 
 tication of his deeds, writings executed by him without these additional formalities will 
 in general be ineffectual. In Rankine v. Reid, quoted in the text, the Court refused to 
 recognise an improbative codicil, mainly on the ground that the truster had not in his 
 trust-deed dispensed with the statutory formalities. But in Baird v. Jaap, 1 856, 18 D., 
 1240, the Court sustained a holograph codicil unsubscribed, because the testatrix in 
 hor trust-deed had directed her trustees to pay all legacies which she might leave by 
 any separate writing, letter, or jotting under her hand, found in her custody or posses- 
 sion at her death. This codicil was of earlier date than the trust-deed. In Wilsone's 
 Trustees v. Stirling, 1861, 24 D., 163, two sisters, by a mutual settlement duly authen- 
 ticated, directed their trustees to pay all legacies given " by letter or other writing 
 under our respective hands, whether formal or informal ;" and the Court sustained an 
 untested writing, subsequent in date to the trust-deed, holograph of one of the sisters, 
 and signed by both of them. As to the essentiality of additional solemnities required 
 by a testator, see supra, § 744. 
 
 voi>. r. 2 r
 
 496 CAN DEFECTS IN SOLEMNITIES OF DEEDS BE § 811- 
 
 How ftir these rules apply to deeds signed iii duplicate is noticed 
 afterwards. 
 
 CHAPTER III. — CAN DEFECTS IN THE SOLEMNITIES OF DEEDS BE 
 SUPPLIED BY PEOOF OF THEIR AUTHENTICITY? 
 
 § 812. As the object of the statutory formalities is to secure 
 genuine subscription, it might fairly be supposed that the want of 
 them would not be fatal to a deed which is admitted or proved to 
 be genuine. Accordingly, the Court under the older statutes al- 
 lowed the subscriptions and designations of the witnesses, and the 
 name and designation of the writer, when omitted, to be supplied 
 by extrinsic proof (a). But the legislature took a different view. 
 Proceeding on the principle that the validity of every deed should 
 be a patent fact, and should not depend on extrinsic evidence, how- 
 ever unexceptionable, they made the statutory solemnities compul- 
 sory, by declaring (act 1681, c. 5) that all deeds in which they were 
 omitted should be null and void. Even after the passing of this act 
 the Court sometimes returned to the former practice (6). But the 
 cases in which they did so have long since been overruled (c). 
 
 § 813. It is now settled law that a deed in which the writer is 
 not named and designed is null, and that the defect cannot be sup- 
 plied by the granter's admission on record, or his oath on reference, 
 that the sul)scription is genuine {d). In like manner a deed or 
 missive which is signed by a party without witnesses designed and 
 subscribing is null, and cannot be validated by proof of its authen- 
 ticity (e). Even the latent defect that one or both of the witnesses 
 attested the deed without seeing the grantor subscribe or hearing 
 
 (a) Supra, ?§ 642, 707. (f,) Beattie v. Lamhie, 1G95, M., 17,021— Irvine v. 
 
 Maxwell, 1707, M., 12,283. (c) Ersk., 3, 2, 19— Tait Ev., 128— Duff Feud. 
 
 Con., 25— Cases in following notes. (d) Kirkiiatrick v. Ferguson, 1704, M., 
 
 17,022— Logio V. Ferguson, 1710, M., 17,020— Muir v. Wallace, 1770, M., 8457; Hailes, 
 340, S. C— M'Farlane v. Grieve, 1790, M., 8459; 17,057; Hailes, 1080, S. C. 
 
 (e) Gordon o. M'Phersou, 1686, M., 17,021— Gordon v. M'Intosh, 1710, M., 16,974 ; 
 17,029. S. C— Russell v. Paisley, 1766, M., 16,904— Park v. M'Kenzie, 1764, M., 8449; 
 5 B. Sup., 639, S. C— Sheddan v. Crawford, 1768, M., 8456; 5 B. Sup., 639; S. C— 
 Muir V. Wallace, swpra— Maitland v. Neilson, 1779, M., 17,054— Wallace v. Wallace, 
 1782, M., 17,056— Kdmonstone v. Lang, 1786, M., 17.057.
 
 § 815. SUPPLIED BY PROOF OF THEIR AUTHENTICITY ? 4'J7 
 
 him acknowledge his subscription is fatal, notwithstanding an offer 
 of proof that th(3 party truly signed the deed (f).^'^ 
 
 § 814. The act 1.079, c. 80, in directing jicrsous who cannot 
 write to use two notaries and four witnesses, instead of one notary 
 and two witnesses as formerly, does not declare that deeds subscribed 
 in the old form shall be null, but only that they shall " mak na 
 faith ;" and the nullity declared in the act 1G81, c. 5, does not em- 
 brace this class of cases. Accordingly, deeds signed by only one 
 notary and two witnesses have been sustained, on the party found- 
 ing upon them proving that the grantor authorised the subscrip- 
 tion {g). But there are several contrary decisions (h). And it is 
 probable that the Court would exact the statutory requisite as es- 
 sential to deeds signed notarially, unless falling under one or other 
 of the classes of privileged documents (0-^^ 
 
 CHAPTER IV. -OF RET INTERVENTUS. 
 
 § 815. Informalities in deeds which require the statutory solem- 
 nities, and the want of writing, where that is usually required for 
 the constitution of the obligation in issue, may be overcome by rei 
 interventus {a)} This doctrine is an equitable qualification of the 
 
 (/) Young V. Ritchie, 1761, M., 17,047— Duff v. E. Fife, 1825 ; 3 Mur., 497 ; 4 S., 
 335; affd., 2 W. S., 166. (</) Redpath v. Huntluy, 1611, M., 17,011— Weir v. 
 
 Moffat, 1609, M., ib.— Sheil v. Crosbie, 1739, M., 16,842; 17,033; 5 B. Sup., 210; ib., 
 667 ; Elch., " Writ," No. 8, S. C. (A) Smith v. Weddear, 1627, 1 B. Sup., 239— 
 
 Rollands v. Rolland, 1767, M., 16,851— Swinton v. Brown, 1088, M., 3412; 8408, S. C. 
 See also Philip v. Cheap, 1667, M., 16,835 ; 17,019 ; 1 B. Sup., 544 ; S. C. 
 
 (t) See Duff Feud. Con., 25. (a) In order to avoid repetition the rules as \q 
 
 rei interventus proceeding on verbal obligations^ will be considered along with those re- 
 garding rei interventus on informal deeds. 
 
 16 Improbative cautionary obligations, not being in re mercatoria, and iuiprobative 
 acknowledgments for borrowed money, have been held per se not to create obligation 
 though the subscriptions of the parties were acknowledged ; Church of England Life 
 and Fire Assurance Co. v. Hodges, 1857, 19 D., 414 ; and Petition 6. Brown, 1794 ; and 
 Petition Francis Carlyle, 1788, noted 19 D., p. 417, 4*6 — Hamilton's Executors v. 
 Struthers, 1858, 21 D., 51. 
 
 17 A disposition and settlement of heritage and moveables, subscribed by two nota- 
 ries for the granter, was reduced in toto, because one of the notaries was disqualified, 
 being a trustee under the deed ; Ferric r. Ferric's Trustee.'', 1863, 25 D.. 291. 
 
 1 JRei interventus is matter of replication, and therefore when a party raised an action 
 
 O T O
 
 498 REI INTEKVENTUS. §815- 
 
 mlo, that wherever writing is requisite the parties arc entitled to 
 resile so long as the}^ have not executed, and (if necessary) deli- 
 vered, a valid deed. The doctrine " is grounded on the fact of tlie 
 person, otherwise imperfectly bound, having permitted another to 
 proceed on his obligation or agreement as if it were complete, and 
 to perform on the faith of it acts unequivocally referable to or re- 
 sulting from the agreement, and which, by the refusal to execute 
 tlie agreement, would prove detrimental to the person so misled or 
 encouraged to proceed" {h).^ Wherever such rei interventus has 
 taken place, locus penitentiae is barred, and the obligation must be 
 implemented. 
 
 § 816. As the object of the rule, therefore, is to obviate defects 
 in the form of contracts really undertaken, and not to force upon 
 any one an obhgation to which lie did not consent, it is essential 
 that real, although not formal, consent be admitted or proved. 
 Thus where a factor, whose factory did not contain power to grant 
 leases, made an agreement with a tenant for a new lease for nine- 
 teen years upon an increased rent, and entered the farm at the new 
 rent in a rental book of the estate, and wdiere the tenant possessed 
 for eleven years and paid the increased rent during the whole of 
 that period, the lease was held not to be binding on the landlord, 
 who denied that he had either authorised the factor to grant the 
 alleged new lease, or had been aware of the arrangement (c). Thus, 
 also, wdiere a tenant maintained that he held a lease for years, in 
 respect of his possession following upon informal documents which 
 had passed betw^een him and the father of his landlord, who although 
 still in minority was past pupillarity, the Court, without requiring 
 the proof of the alleged possession to be laid before them, rejected 
 the tenant's claim ; and the House of Lords affirmed the judgment ; 
 one of the grounds of which was, that the landlord's father had not 
 power to grant leases during his son's minority (c7). Thus, also, 
 where a paper of proposals for a marriage-contract had been deli- 
 
 (b) 1 Bell's Com., 329— See also Erpk., 3, 2, 3— Tait Ev., 131, 227, et seq. 
 
 (c) Campbell v. Kobertson, 1797, noted in Hume D., 849. There were other ele- 
 ments also in this case.— See a siinilar case. Sharp v. Napier, 1822, 1 S., 477. 
 
 (d) Pentland v. Scott, 1829, 7 S., 502 ; affd., 5 W. S., 28. 
 
 on an informal bond, he was permitted to add on revisal the facts and circumstances on 
 which he founded a plea of rei interventus ; United Mutual Mining and General Life 
 Assurance Society v. Murray, 1860, 22 D., 1185, 
 
 2 But rei interventus may take place by proceedings of the one party of which tlie 
 other party is not aware ; see infra, § 842.
 
 §811). REl lyTERVENTUS. 499 
 
 vered to the wife's brother, luit had nut l)ec'n sliown to her or licr 
 lather, it was held not to have heen raised into a binding eontract 
 by the subsequent marriage (e). On the same principle, where 
 there were several parties to a hnisc-, and some of them had en- 
 tered into a new lease wliich liad l)een followed by possession, a 
 co-lessee, wlm liad nut l)eeii a party t<» the new agreement, was huld 
 not to be bound l)y it, l)ecause lie had nut consented to it, and the 
 slight increase uf rent which had been paid fur the possession of 
 the year lulluwing ujxm it was uniiujturtant as a circumstance 
 against him, seeing thai (Ik- rent uniler the I'urmer lease had varied 
 in different years {/), 
 
 § 817. On this principle, also, a deed tu which one party's name 
 is forged will not be made effectual by the other party having acted 
 on the laitli of it (</); and rei interventus will not give effect to an 
 obligation written on a piece of paper which the party signed for a 
 different purpose (A), So an improbative deed of settlement, fol- 
 lowed by possession during the testator's life, is not effectual as a 
 conveyance inter vivos, because that is essentially different from the 
 deed which the party intended to execute (i). 
 
 § 818. It follows from the same principle that a "\mting signed 
 by a person while under curatory, without tlic consent of the cura- 
 tor, is ineffectual, although it be fulluwod l»y rei interventus (A-). 
 An antenuptial contract entered into by a minor having curators, 
 not having been signed by a quorum of them, was held not to be 
 ipso jure null (lesion not being proved) ; and it was observed that 
 the doctrine of the nullity of a deed entered into by a minor Avith- 
 out consent of his curators is not so absolute as to undergo no qua- 
 lification (?). 
 
 § 819. For the same reason, possession or other rei interventus 
 will not render a draft or offer for a lease obligatory, where the par- 
 ties had not finally agreed on its terms (?n). Tn such a case the 
 acts founded on were performed in the expectation or hope of a fu- 
 ture contract, not on the faith of one already concluded. The same 
 principle applies where the alleged contract contained some condi- 
 tion iirecedcnt, whirh was nut cfniplicd with, as in the case of a 
 
 (e) Campbells v. Ai'Glashau, Stli June 1812, F. C. (/) Graham v. Orr, 1831, 
 
 10 S., 135. {g) Skelton v. M-LaiLii, 1816, Hume D., 106— Falconer v. Fiilconer. 
 
 1830, 8 S., 312, per Lord Gillies. (A) See Mackenzie v. Stewart, 1848, 10 D., 
 
 611. As to skeleton bills see supra, §§ 648, 651. («) Boyes v. Dinwoodies, 
 
 1800, Hume D., 910. (A) Primrose v. L. Rossyth, 1579, M., 5980. 
 
 (/) Bruce r. Hamilton, 1854, 17 D.. 265. (m) Cairns r. Gerrard, 1833. 1 1 
 
 S.. 737— Alo.s.andor v. Montgomery. 1773. L' Tnt., 300.
 
 500 REI INTERVENTUS. §819- 
 
 lease where tlie landlord stipulated for caution for the rent, and the 
 tenant possessed for six years without having found caution {n) ; 
 and where written communings for a contract provided that there 
 shoukl not he a conchided agreement until a formal deed had heen 
 executed, but the possession took place without that condition liav- 
 ing heen fulfilled (o).^ 
 
 The effect of homologation upon deeds originally deficient in the 
 granter's consent is noticed afterwards {p). 
 
 § 820. As to the informalities which rei interventus will over- 
 come there is no limit. It operates when the deed is probative ex 
 facie, but labours under a latent ol)jection, e.g., that the witnesses 
 did not see the party sign, or hear him acknowledge his su))scrip- 
 tion (r); that the notaries did not subscribe unico contextu {s) ; or 
 that the deed was not executed before the witnesses and at the 
 place mentioned in the testing clause {€). 
 
 § 821. Patent informalities, also, fail to invalidate a deed which 
 has been followed by rei interventus. For example, this has been 
 held as to the non-subscription of witnesses {ii), the subscription of 
 only one notary and fewer than four witnesses (a;), and as to the 
 want of designation of the writer (y), and of the witnesses {z). In 
 like manner a marriage-contract in the English form, but wanting 
 the solemnities required by Scotch law, was allowed to affect the 
 husband's heritage situated in this country ; marriage having fol- 
 lowed on the faith of it («). 
 
 § 822. Documents merely signed by the parties without any 
 
 (n) Cairns v. Gerrard, supra. (o) Alexander v. Montgomery, supra. See 
 
 supra, \ G04. {p) Infra, I 852, et seq., on homologation. (r) Smith i'. Bank 
 
 ..f Scotland, 25th Jan. 1821, F. C, as noticed by Lord Glenlee in E. Fife v. Duff, 1825, 
 4 S., 335. (s) M'Morran v. Black, 1624, M., 16,830, 17,012— Gow v. Craig, 
 
 1633, M., 17,017. (t) Martin v. Wingate, 1828, 6 S., 859. (w) Grant v. 
 
 Grant, 1753, M., 13,841— Telfer v. Hamilton, 1735, M., 17,032. (x) Lockie v. 
 
 , 1G27, M., 17,014— Grieve v. Cant, 1626, M., 5681— Muir v. Crawford, 1628, M., 
 
 17,014— Cheap' i-.Mowat, 1626, M., 17,014— Nisbet v. Newlands, 1630, M., 5682; 17,016 
 — Grierson v. Scotts, 1699, M., 17,022— Crosbie v. ShieU, 1739, M., 16,842. 
 
 (y) Buchanan v. Buchanan, 1775, M., 17,051— Wolf t>. Scott, 1636, M., 17,017. 
 
 (z) Hamilton v. Wright, 1836, 14 S., 323 ; affd., 3 Sh. and M'L., 127— Kibbles v. 
 Stevenson, 1831, 5 W. S., 553— Falconer v. Falconer, 1830, 8 S,, 312— Taylor v. Grieve, 
 1800, M., " Arbitration," Appx., No. 8. {a) Busbby v. Renny, 1825, 4 S., 110. 
 
 3 But possession on an informal lease, before the date of entry Irat on the faitli of 
 the lease, would probably lie held to validate it rd inlerventu ; Pratt v. Aborcronaby, 
 1858, 21 D., p. 21, per Lord Benliolmo.
 
 §826, REl INTERVENTVS. 601 
 
 further authentication have repeatedly been sustained, where rei in- 
 terventus had ensued upon them (&). 
 
 § 823. Rei intcrvenfus will validate deeds signed by initials 
 without the statutory soleniuities (c), and deeds signed by a cross 
 or mark {d). 
 
 § 824. Even the want of sul)Scription by one of the parties to 
 a mutual contract may be obviated by this means, provided he truly 
 consented to the agreement recorded in the deed (e). Thus a mis- 
 sive signed only by the tenant, and found in tlie landlord's re- 
 positories (/), or a missive signed by the landlord and delivered 
 to the tenant {g), constitutes a binding lease, if possession followed 
 upon it. Thus, also, a marriage-contract signed by the hus])and 
 and by the wife's father, but not by her, was set up by marriage 
 and payment of tocher on the faith of it {h) ; and an agreement 
 between the father and mother of an illegitimate child for its ali- 
 ment, having been signed by the father and the mother's brother, 
 but not by the mother herself, and having been acted upon by the 
 parties, was held to be effectual (i). And where one of three par- 
 ties to a submission as to their respective rights of pasturage, agreed 
 verbally to the terms of the submission as contained in an informal 
 letter, which was signed by the others, but not by him ; and where 
 he appeared and adduced witnesses under the reference ; the decree- 
 arbitral was held to be effectual against one of the parties who had 
 signed the letter, but who contended that, as it had not been signed 
 by all the parties, it was not binding upon any of them {j ). 
 
 § 825. A written agreement, which both parties have neglected 
 to sign, will even be effectual as the measure of their contract, if 
 rei interventus has followed on the faith of its being imple- 
 mented (Jc). 
 
 § 826. In all cases where the signature of both or either of the 
 
 (6) See, for example, Duncan v. Barron, 1752, M., 16,984; 15,177, S. C— Goodlet 
 Campbell v. Lennox, 1739, M., 16,979— Manderson v. M'Minn, 1802, Hume D., 90— 
 Balfour v. Thomson, 1806, ib., 94— Grant v. M'Donald, 1827, 5 S., 317— Johnstone v. 
 Grant, 1844, 6 D., 875. (c) M'Arthur v. Simpson, 1804, M., 15,181. 
 
 {d) M'Neil v. Black, 1814, Hume D., 103— Neil v. Vashon, 1807, ib., 20. 
 
 (e) See More, 67, and cases there cited. (/) Stewart v. Countess Moray, 
 
 1772, 2 Pat., 317 ; reversing, M., 4393— Graham v. Gowans, 1792, Hume D., 784— Ross 
 V. Ross, 1790, ib., 774— Gordon v. Anderson, 1828, 3 W. S., 1. {g) Arbuthnot 
 
 V. Campbell, 1793, Hume D., 785— Murdoch v. Moir, 18th June 1812, F. C— M'Pher- 
 son V. M'Pherson, 12th May 1815, F. C— Home v. Home, 1684, M., 8421. 
 
 {h) Wemyss v. Wemyss, 1768, M., 9174. (t) Gibb i;. Ogg, 1835, 13 S., 612. 
 
 (j) Brown v. Gardner. 1730, M., 6659; 8474, S. C. {k) Gordon v. Car- 
 
 michael. 1800. Hume D., 805— Grieve v. Pringlo, 1797, M., o951— Cases infra, I 827.
 
 502 REI IXTERVENTUS. §826- 
 
 parties is invaiitiug, it is esseutial to ascertain wlietlier the defect 
 arose from inadvertauce, or from tlie want of substantial consent. 
 If it arose from the latter cause, the contract is ineffectual, not only 
 as against the non-subscribing party, but also as against those who 
 subscribed ; because each contracting party is in law presumed to 
 bind himself on the understanding and condition that all the others 
 shall be bound also. Accordingly, where a letter of guarantee had 
 originally been meant to be granted by two persons, and had been 
 written " We the undersigned," <fec., but had been subscribed by only 
 one of the parties, and been altered into " I the undersigned," and 
 had been followed by advances on the faith of its validity, the Court 
 held that it was not binding on the party who had signed it, there 
 being no proof that he had agreed to be bound as sole cautioner (I). 
 On the same ground, where a cash-credit bond in the name of five 
 parties took them all bound in solidum for advances made to one of 
 their number, but where one of the intended cautioners refused to 
 sign it, and money was advanced on the faith of the obligation as 
 partially signed, the Court held that it was not effectual against 
 those who subscribed, although the bank had not specially under- 
 taken to get it signed by all the parties {m).'^ Of course the prin- 
 cipal debtor would have been bound notwithstanding the omission ; 
 as his obligation could not have been contingent on the subscrip- 
 tion of the persons who joined him in the bond. And if the conduct 
 of the parties subscribing, or their writs or oaths, had shown that 
 they intended to be bound nothwithstanding the non-subscription 
 of the party who had refused to sign, they would have been held 
 liable in the same manner as if the deed had run in their names 
 
 (I) Loudon V. Jackson, 1825, 3 S., 558. (m) Paterson v. Bonar, 1844, 6 D., 987. 
 
 * Money was advanced in loan, on an obligation bearing to be granted by five par- 
 ties, four of them being cautioners. Three of the cautioners signed the bond, and the 
 principal obligant forged the name of the fourth ; it was held not binding on any of the 
 cautioners ; Scottish Provincial Assurance Co. v. Priugle, 1858, 20 D., 465. But where 
 a bond of caution in a suspension, bore to be signed by two cautioners, and one sig- 
 nature proved to be a forgery ; the Court, reversing tlie judgment of Lord Kinloch, 
 held tlie other cautioner liable in all the obligations under the bond. The distinction 
 taken between a bond of caution in a suspension and a bond of caution in favour of a 
 creditor, being, that in the latter case the caution is demanded by the creditor as the 
 condition of advancing the money, or not calling up the money advanced. In the for- 
 mer case the bond is the deed of the suspender, and originates with him ; the endeavour 
 of the charger is to get the note of suspension dismissed, and the bond of caution is 
 forced on him ; and he is entitled to leave tlie procuring of caution entirely to the sus- 
 pender, subject to the control exercised by tlie officials in the Bill Chamber ; Simi'son 
 r, Fleming, 18G0, 22 D., 679.
 
 § 827. REl INTKIiVENTL'S. OU:'. 
 
 alone {n). 'riiuro uiu alsu writings which, ulthuugh in the form of 
 mutual deeds, really contain independent provisions, and in which, 
 therefore, the want uf authentic suhscrijttion by one party does not 
 annul the deed as to tiie other. An example of this has already 
 been given in the case of a mutual will by a husband and wife, 
 which was sustained as a holograph will of the lurmer, although, 
 if the wife had predeceased, it would not have been elfectual as her 
 will, be(;ause it was not legally attested (o). 
 
 § 827. Again, although the proper purpose of the writing- 
 founded on is not to bind the parties to a concluded agreement, yet 
 if they intended it to do so, the right to resile from its stipulations 
 will be barrcil by ni intervenhis. This is uften exemplified in 
 leases, where documents not framed as formal deeds, l)ut folluwcij 
 by the tenant's possession on the faith of their being implemented, 
 have been held to constitute agreements for the periods stipulated. 
 One case of this kind is mentioned above, where the documents 
 sustained were a missive offer signed by the tenant, and a draft 
 lease prepared in accordance with it, and signed by him four years 
 after his possession had commenced {p). In another case, where 
 a draft lease written by the husband of the proprietrix and delivered 
 to the tenant, but not signed by either party, had been follow^ed by 
 possession and by payment of rent upon receipts for the first and 
 second half-year's rents "under the new tack," the Court held that 
 the tenant possessed on a written lease for the time specified in the 
 draft, being satisfied that the parties had completed an agTeement 
 in accordance with it (r). On the same principle, where a land- 
 lord signed a memorandum for preparing a new lease to one of liis 
 tenants, and handed it to a person who managed his money matters 
 in London, with directions to transmit it to the local factor for be- 
 hoof of the tenant, who was sister of both these persons ; and where 
 the tenant possessed for some time aitcr tlic cxitiry oi her old lease, 
 and certain letters were written by the laudlonl to the local factor, 
 which referred tt) the tenant's possession as one for years, and pro- 
 posed a new arrangement on the footing of her being remunerated 
 for loss of profits if the lease was interrujited ; the Court held that 
 in the whole circumstances the tenant possessed on a written lease 
 for years, as the memorandum had been intended to be binding on 
 the landlord, and the possession was to be attributed to that title (s). 
 
 (n) See Macdouald v. Stewart, 5th July 1810, F. C. 
 
 (o) M'Millan r. jM'Millan, 1850. 13 D., 187. (p) Gordon i'. Anderson. 
 
 1828, 3 W. S., \— Supra, § 800. (r) Grieve v. Tringlo. 17'J7, M., 5951. 
 
 (,«) Mackenzie v. Mr.ckenzic, 17'.)9, llumc P., 801.
 
 504 nEI iXTERVENTUS. §827- 
 
 Iii another case a letter addressed by the principal factor on an es- 
 tate (who had power to grant leases) to the local sub-factor, and 
 delivered by the latter to the tenant, having been followed by pos- 
 session and payment of rent in accordance with its terms, was sus- 
 tained against a singular successor of the landlord {f). On the 
 same principle, an obligation (although not holograph or tested) to 
 grant a lease, if delivered and followed by rei interventus, is effec- 
 tual {u). And where, shortly before a sequestration had been 
 wound up on a composition-contract with cautioners under a re- 
 gular bond of caution, the bankrupt, at the desire of the trustee in 
 the sequestration, obtained from another person a holograph letter 
 authorising the bankrupt to propose him as a security for the trus- 
 tee's commission ; which letter was handed to the trustee, but was 
 not laid before the creditors, or mentioned in the proceedings rela- 
 tive to the bankrupt's discharge ; in an action by the trustee against 
 the writer of the letter, the Court held that, as it formed part of the 
 consideration upon which the trustee consented to the discharge, it 
 was effectual as a cautionary obligation in his favour (pc)} 
 
 § 828. E conve7^so, a mere memorandum by a landlord on the 
 margin of his ledger, mentioning the term of a tenant's possession 
 to be fifteen years, having been followed by possession for part of 
 that period, was held not to constitute a written lease for the whole 
 term, the landlord having deponed that it was merely a note of a 
 verbal arrangement whicli the parties had made for a lease during 
 the time mentioned (?/). In reporting this case Baron Hume ob- 
 serves, "It is true that of late years much equitable favour has been 
 shown to tenants, in sustaining written titles of possession for a 
 term of years, though imperfect or informal, if they have been fol- 
 lowed with possession and payment of rent. And this seems to be 
 right where the writing, irregular and unshapely as it is, appears, 
 however, to have been intended by the parties at the time as the 
 permanent evidence of a finished agreement. But it would be 
 against all principle (and this length the Lorils have never gone) 
 
 (t) Arbuthnot v. Reid, 1804, Hume D., 815. (ii) Grant v. Richardson, 
 
 1788, M., 15,180— Garioch v. Forbes, 1750, M., 15,177— Sutherland v. Hay, 1845, 8 D., 
 283. (z) Tweedie v. M'Intyre, 1823, 2 S., 361. (y) Maxwell v. 
 
 Grierson, 1812, Hume D., 849. 
 
 5 Pencil jottings in a tenant's books, signed by landlord and tenant, and followed 
 by possession, were held to constitute a binding contract ; Williamson v. Kennedy, 
 1857, VJ D., 443.
 
 §829. REl INTERVENTUS. 505 
 
 to sustain to tlie same elTect some brief note or occasional memo- 
 randum, made by the landlord for his own private use, or some 
 transient and incidental mention of terms of set in a writing des- 
 tined for sonic (juite different purpose — for instance, a receipt for 
 rent. In signing such a receipt, unless it utterly deviates from tlic 
 usual style, tlie landlord cannot be presumed to have had anything 
 more in view than to acknowledge and discharge a payment of rent, 
 I have a note accordingly, but without the names of parties, of a 
 judgment given to that effect on the 10th of March 1798. Tlie 
 Court refused in this instance to sustain as a written title of posses- 
 sion, a receipt for rent signed by the landlord, written however by 
 the tenant, which l)ore that the money was paid as tlie first year's 
 rent of tlie new tack for twelve years." In another case, where a 
 tenant averring a nineteen years' lease, founded on receipts by the 
 landlord's factor for rent for eleven years, and an entry in the rental- 
 book kept by the factor mentioning the farm as let at the new rent 
 for nineteen years, the Court, treating these documents as if they 
 had been written by the landlord, held that they were insufficient 
 to constitute a lease under a written title {z). 
 
 These cases, accordingly, show that different effects may follow 
 from rei interventus upon an informal writing by which the parties 
 intended to constitute their agreement, and upon the writ of party 
 ex post facto proving a verbal agreement between them. The im- 
 portance of this distinction in contracts of lease and service will be 
 seen immediately. 
 
 § 829. The same equitably principle which excludes locus peni- 
 tentiae from an informal written contract, dispenses with the neces- 
 sity for writing in obligations which could not have been contracted 
 verbally, if matters had been entire ; such obligations being effec- 
 tual when they have been followed by rei interventus (a). This is 
 the rule, however important the subject maybe; as, for example, 
 in verbal feu-contracts (6), verbal sales of heritage (c), verbal con- 
 
 (z) Campbell v. Robertson, 1797, noted in Hunio D., 849. Tliere was also a ques- 
 tion as to the factor's powers to grant a lease ; see supra, § 816. 
 
 (a) Ersk., 3, 2, 8. {b) Rait v. Galloway, 1833, 12 S., 131. 
 
 (c) In Lawrie v. Craik, 1697, M., 8425, a verbal sale of herita<,'e was held to be effcc- 
 tnal on account of part of the price having been paid. In E. Kinghorn v. Hay, 1G74. 
 M., 8414, a verbal agreement for the sale of lands was sustained, in consequence of the 
 seller having purcliased up a mid-superiority in or.ler that the purch:iser might hold as 
 a crown vasLl, which had been part of the bargain. In Tliomson v. Thomson, 1099, 
 M., 8426, a verbal sale of a house, having been followed by delivery of tlie keys and ti- 
 tles, by a year and a half's possession by the purchaser, who during that time had eu-
 
 50G REl INTERVEXTUS. §829- 
 
 stitutions of servitude (c?), excambion (c), and submission as to 
 heritage (y"). 
 
 In like manner, a promise by a superior to enter an intending 
 purchaser of the property, without exacting the usual casualty, hav- 
 ing been followed by the purchase on the faith of the promise be- 
 ing performed, was held to be effectual (g) ; and a verbal consent 
 by a proprietor in a burgh to a neighbouring proprietor building 
 some distance into the street, having been acted upon b}' the build- 
 ing being proceeded with, locus penitentiae was held to be ex- 
 cluded (h).^ 
 
 § 830. With regard to verbal leases there is an important dis- 
 tinction depending on the extent and nature of the ret interventus. 
 As already mentioned, a verbal lease for a number of years may be 
 resiled from at the end of each j^ear, and possession wdll not make 
 it binding on either party beyond the year current (i). According- 
 ly, if the rei interventus founded on can be fairly ascribed to a right 
 of possession from year to year, it will not make a verbal lease for 
 a number of years effectual ; whereas such rei interventus as cannot 
 be reconciled wdth a lease for one year will prevent either party 
 from resiling from the verbal contract for the whole term Qc). 
 
 § 831. Thus, on the one hand, a verbal lease for a number of 
 
 tered into a contract with a third jjarty as to building a wall to the premises, was ^leld 
 to be binding. In Moodie v. Moodie, 1745, M., 8439, where three heirs-portioners re- 
 solved to set up their shares to roup among themselves, and Ann intending to purchase 
 agreed verbally with Agnes to pay a certain sum for her share without reference to the 
 price which should be fixed at the roup ; and on the faith of that arrangement Ann 
 made the highest offer for the whole, and was preferred ; whereupon Agnes refused to 
 implement the verbal bargain ; the Court held that locus penitentiae was excluded, as 
 Ann had made the purchase on the faith of the contract being implemented. 
 
 {d) Kincaid v. Stirling, 1750 (Kilk.), M., 8404— Ivory's Ersk., 428, note 182. 
 
 (e) L. Melville v. Douglas' Tr., 1830, 8 S., 841. (/) Brown v. Gardner, 
 
 1739, M., 5659; 8474— Pro-Fiscal of Koxburgh v. Ker, 1672, M., 12,410— L. Living- 
 ston V. Falhouse Feuars, 16G2, M., 2200. [g) Gordon v. Pitsligo, 1674, M., 
 8415. {h) M'Lean v. Richardson, 1834, 12 S., 865. (i) Supra, 
 I 548. [k) 1 Bell's Com., 329— Bell's Pr., § 1189— Ivory's Note 96 to Ersk., 
 2, 6, 21— Tait Ev., 229—1 Hunter on Land, and Ten., 353. 
 
 * But the verbal agreement itself cannot be proved except by writ or oath. See 
 Gowans v. Carstairs and Walker v. Flint, infra, § 832, note 7. Where a party made a 
 written offer to take a piece of ground in feu, and the offer was accepted in writing, 
 but under certain conditions, and where the feuar took possession and acted as pi'oprie- 
 tor, it was held that a valid feu-contract was completed, and that the conditions of the 
 acceptance formed conditions of tlie contract; Colquhoun ?'. Wilson's Trustees. 1860, 
 22 D., 1035.
 
 §833. RKl INTER VKNTUS. 507 
 
 years, fulluwod l>y possession and onlinary ini})rovcments in cultiva- 
 tion and niaiiagement, will nut \)X(i\(i\\i locus penitentiae at the end 
 of each year (i). And tins was lield to he the rule, where the 
 tenant had possessed on a written hjase, wliich was verhal as to the 
 term of endurance (jn) ; and wliere, in a jmh'eial rental of the lands, 
 the tenant had deponed that he ])Ossessod on a verhal tack f<jr nine- 
 teen years, and tt) that effect had suhscriljed a written oath, which 
 had heen left with the landlord's factor (w). 
 
 § 832. On the otiier liand, verhal leases for several years have 
 heen sustained where the tenant had paid a grassum on his en- 
 try (o) ; where he had spent considerable sums in improvements, 
 building offices and the like (p) ; and where he had converted the 
 subject of the lease (a lield of four acres) from common arable into 
 garden ground (g) ; — these being substantial acts in implement of 
 the contract as for the whole term agreed upon. Accordingly, an 
 old decision (r) is erroneous, in which the Court refused to sustain 
 a verbal lease of a house for nine years, wliere the tenant had, at 
 considerable expense, altered the partitions and reared up pews, in 
 order to convert the premises into a meeting-house. It is also dif- 
 ficult to reconcile with later authorities an old case, where the 
 tenant under a verbal lease for years was allowed to resile, although 
 he had entered to a part of the farm, and the landlord had built 
 barns and byres in the contemplation of the lease being completed; 
 the Court considering that, as these would serve for an}' other 
 tenant, the landlord would not be prejudiced by the resiling (6').^ 
 
 § 833. But while a verbal lease for years, if followed by sub- 
 tantial rei interventus, is effectual against the landlord and his heirs, 
 
 (l) Supra, \ 548 ; and authorities cited supra, \ 828 — Keith v. JohnstoDc's Tenants, 
 1636, M., 8400— Buchiiuan v. Baird, 1773, M., 8478— A t\ B, 1791, M., 15,181— M'Korie 
 V. M'Whirtcr, 18tli Dec. 1810, F. C. (w) Clark r. Lament, 27th Jan. 1816. 
 
 F. C. — M'Korie v. M'Whirter, supra. (n) Stewart v. Leith, 1766, M., 15,178; 
 
 Hailcs, 174, S. C. (o) A v. B, 1553, M., 8410; 15,209— M'Rorie v. M'Wliirter, 
 
 18th Dec. 1810, F. C— Bell's Com., «w/>ra— Ivory's Note, supra. (p) M-Rorio 
 
 V. M'Whirter, supra. (q) Campbell v. Dougall, 1813, Hume D., 861. 
 
 (r) M'Kenzie v. Trotter, 1729, M., 8437; questioned in More's Notes, 67. 
 
 («) Skene v. , 1637, M., 8401. 
 
 7 Contracts of lease for a term of years, like other contracts relating to heritage, 
 can be proved by writ or oath only ; if the contract which ia so proved be a verbal con- 
 tract, it will not be binding because there will be locus penitendae to the parties, unless 
 rei interventus has followed on the contract. The rei intercentus may be proved by parole 
 evidence, and will bar locus penitentiae ; Gowana v. Carstairs. 1862, 24 D., 1382 — "Walker 
 r. Plint, 1863, 1 Maoi-ii.. 417.
 
 508 REI INTER VENTUS. § 833- 
 
 it is not binding upon his singular successors ; as these are not af- 
 fected by any lease which has not been reduced to writing and fol- 
 lowed by possession {t). 
 
 § 834. A verbal contract of service for years is analogous to a 
 verbal lease in this respect, that either party may resile from it at 
 the end of each year, although the service has been entered upon, 
 or although the contract has been followed by any other rei inter- 
 ventus which is consistent with one year's service {u). On the same 
 analogy, and on the justice of the case, it is thought that if the ver- 
 bal contract has been followed by such rei interventus as is inappli- 
 cable to a term of only one year {e.g., payment of a high premium 
 on entry), it will be sustained for the full period stipulated. 
 
 § 835. It has been already observed that, in general, writing is 
 not essential ex solennitate to the constitution of cautionary obliga- 
 tions (^). Consequently, as there is not locus penitentiae hova. ihQ 
 verbal undertaking, the doctrine of rei interventus is usually inap- 
 plicable in this class of obligations. But in those cases where writ- 
 ing is usually interposed {y), and where a party when agreeing 
 verbally to become cautioner is therefore presumed to have in view 
 a subsequent written obligation, it may be a question whether rei 
 interventus on the verbal undertaking will make it binding. If the 
 interposition of writing in such cases is to be regarded as a condi- 
 tion suspensive of the obligation, then rei interventus upon the ver- 
 bal agreement will not render it effectual {z). This view derives 
 support from two decisions (a). But the analogy of the rule as to 
 verbal obligations regarding heritage is against holding that a ver- 
 bal cautionary obligation in the cases referred to is ineffectual 
 where the obligant did not stipulate that he should be free until 
 writino" should have intervened, and where rei interventus followed 
 on the faith of the verbal undertaking.^ 
 
 (t) 1449, c. 18— Stair, 2, 9, 4— Ersk., 2, 6, 24, 5—2 Ross' Lcc, 475— Bell's Pr., 
 I 1189—1 Hunter on Laud, and Ten., 430. [u) Supra, § 546. 
 
 (x) Supra, § 597. {y) See these mentioned suj^ra, g 598. 
 
 (z) Supra, 22 603, 819. (a) Sliirra v. Douglas, 1798, M., 16,946— Chaplin 
 
 V. Allan, 1842, 4 D., 616— See also supra, § 603. 
 
 8 A cautionary obligation not in re mercatoria is literarum oUigatio at common law, 
 to be evidenced by a deed executed with the solemnities of the statute 1681. But an in- 
 formal cautionary obligation may be validated rei interventu ; Church of England Life 
 and Fire Assurance Co. v. Hodges, 1857, 19 D., 422— Lord Justice-Clerk Hope. All 
 guarantees and cautionary obligations made after 21st July 1856 must be in writing,
 
 § 837. RE I INTER VENT US. 509 
 
 § 836. Verbal contracts for the sale and transference of incor- 
 poreal moveable rights may be validated by rei interventus (b). 
 Tliis, however, will not hold as to verbal transmissions of patents 
 or copyrights, for which writing is a statutory requisite (c).^ 
 
 § 837. Having thus explained the cases in wliirh rei interventus 
 operates, we proceed to consider the characteristics of the acts which 
 constitute it. 
 
 Their primary requisite is, that they une(iuivocally refer to the 
 informed or verbal agreement, and took place in consequence of 
 it {d). This principle is seen in the rules already noticed regard- 
 ing verbal leases (e). It is well illustrated by a case where an 
 agreement to become cautioner was contained in an informal mis- 
 sive, which mentioned that a regular bond for the contemplated 
 advance was to be executed by the principal and cautioner ; and 
 where a bond, apparently formal, bearing their signatures, was de- 
 livered to the creditor some time afterwards, on the faith of which 
 sundry advances were made by him to the principal ; but it turned 
 out that the supposed signature of the cautioner was a forgery. 
 The creditor thereupon contended that the missive followed by the 
 advances was binding ; but the cautioner replied that the advances 
 were made on the faith of the forged bond, and not of the missive ; 
 and the Court sustained that defence (/). On the same principle, 
 where a party had for several years been tenant in two farms, and 
 on being sued for the rent of one of them pleaded that it had been 
 let to his son on a new lease ; to prove which he founded on a scroll 
 lease to that party ; the Court repelled the defence on the ground 
 {inter alia) that there had been no change of possession, and, there- 
 fore, no rei interventus clearly attributable to the alleged new 
 lease {g). In another case, where a landlord failed to establish a 
 
 (i) Clark V. Callander, 9th March 1819, F. C; affid. 9th June 1819— Graham v. 
 Corbet, 1708, M., 8428. (c) See supra, g 558. (<i) 1 Btll's Com.. 329. 
 
 (e) Supra, g 830, et seq. (/) Skeltou v. M'Laren, 181G, Hume D., 106. 
 
 {g) Pentland v. Scott, 1839, 7 S., 502. 
 
 " otherwise the same shall have no effect"; 19 and 20 Vict., c. 60, § 6. See supra, § 601, 
 note *. " luuomiiiato contracts, especially such as are of an unusual character, cannot 
 be constituted verbally, or proved by witnesses. Nor does it alter the rule that rd in- 
 terventus upon such verbal and innominate contracts is alleged ; for the uncertainty as 
 to the terms of an innominate verbal contract, renders it impossible to determine what 
 acts can be considered as constituting a partial performance, or rei interventus following 
 upon it "; Edraonston v. Bruce, 1861, 23 D., 995, per Lord Benholme. 
 9 See supra, § 558, note *.
 
 510 REI INTERVENTUS. §837- 
 
 lease under an unsigned tack followed by possession, an important 
 circumstance against him was, that he had raised action against 
 another person for implement of a lease of the subject for the same 
 period (A).^" 
 
 § 838. Contrasted with these cases is one in which it appeared 
 that during the currency of a verbal lease, a new lease was entered 
 into by an informal missive signed onl}^ by the landlord, and im- 
 provements were executed by the tenant on the faith of it being- 
 implemented, but before the term of entry under it commenced. 
 The Court held that they constituted sufficient rei interventus (i). 
 And where an informal letter of guarantee for past and future fur- 
 nishings had been followed by furnishings on the faith of it, these 
 were held to be rei interventus upon both parts of the obligation ; 
 because it was one transaction, and the subsequent furnishings 
 would probably not have been made, unless security had been found 
 for the unpaid price of the others {k). Thus, also, w^here an infor- 
 mal tack of teinds had been followed l)y possession, the Court sus- 
 tained it in favour of the lessor's assignee, and overruled the lessee's 
 defence that he had possessed under a formal lease, which he had 
 procured from the parson after the date of the lease sued upon (Z). 
 
 § 839. What amount or description of acts will constitute rei 
 interventus, has occasioned some discussion. Lord Kilkerran, in 
 reporting a case which has often been quoted, states, " The rule by 
 which it is to be judged Avhether res be non Integra, so as to exclude 
 the locus penitentiae, was laid down to be this, that whenever any- 
 thing has happened on the faith of the verbal agreement, which 
 cannot be recalled, and parties put in the same place as before, then 
 res is understood not to be iiitegra, and there is no longer locus 
 2)enitentiae" (m). This definition has not been adopted by subse- 
 quent jurists (/i) ; and in particular it has been challenged by the 
 first Lord Meadowbank, who observed that " there is in it a con- 
 
 (k) Girdwood v. Wilson, 1834, 12 S., 576. (i) Murdoch v. Moir, 18th June 
 
 1812, F. C. {k) Paterson v. Wright, 31st Jan. 1810, F. C. ; aflfd., 4th July 1814 
 
 —See also Robertson v. Galloway, 1821, 1 S., 204. (I) Home v. Home, 1684, 
 
 M., 8421. (m) Moodie v. Moodie, 1745, M., 8439. (n) 1 Bell's Com., 
 
 329 — More's Notes, 66 — Authorities in following notes. 
 
 10 A party took possession of a mineral field under an informal missive, by which 
 he was to have twelve months to prove the ground, and other twelve to erect machinery ; 
 he remained in possession thirty months, and he was held bound by the missive, though 
 he pleaded he had done nothing but prove the field, which he had found not workable 
 to profit; Sinclair v. Mossend Iron Co., 1854. 17 D., 258.
 
 §841. A- /;/ /.\- ti:r \ 'i:xtus. 5 1 1 
 
 founding of tlie restitutio in inttyruin with tlie rei interventus" (o). 
 But it can liarJly be sujjposeJ that the learned Judges whose views 
 Lord Kilkerran reported, and that eminent lawyer himself, would 
 have confounded two matters so completely distinct. The error 
 merely lay in stating as the essential characteristic of acts of real 
 intervention that which is a frequent, hut not an indispensable, 
 quality in them (p). A better description is given by Lord Core- 
 house, and adopted by Lord-Chancellor Brougham — " To constitute 
 a 7-ei interventus it is not necessary that the party against whom it 
 is pleaded should derive benefit from wliat has been done. It is 
 enough if the party who pleads it is placed in circumstances on the 
 faith of the agreement by which his interest would suffer if it were 
 not implemented " (/•). Professor Bell states the doctrine in similar 
 terms : " There must (he says) be an inconvenience or alteration of 
 circumstances to the party who has been led to rely on the agree- 
 ment, though the change is not required to be irreparable. It is 
 sufficient that it be considerable, and that the disappointment would 
 be attended with loss" (.s). In fact, the doctrine is the counterpart 
 of that which allows either party to resile from an informal agree- 
 ment, provided he exercise his right before the other party has 
 taken such steps on the faith of the contract, that its non-implement 
 would occasion him material damage. That rei inferventu.s may 
 arise where the acts could be recalled, and the parties placed in the 
 same situation as at the date of the contract, is shown by the nu- 
 merous cases in which such acts as payment of part of the price of 
 the subject sold, and entering to the possession of it, have been held 
 to bar locus penitentiae. 
 
 § 840. Acts of real intervention often involve the principle of 
 homologation, by partial implement of the contract on the side of 
 him who afterwards attempts to resile from it. For example, this 
 is so in regard to payment and receipt of part of the price of the 
 subject sold ; and where the party wlio seeks to resile had com- 
 menced to act under the contract ; and in cases of submission, 
 where he had appeared and pleaded in the reference, but afterwanls 
 refused to implement the decree-arbitral on the ground of infor- 
 mality in the contract of submission. 
 
 § 841. Eei interventus may also arise from the independent 
 acts of the party who wishes to enforce the contract. This is illus- 
 
 (o) Dunmore Coal Co. v. Young, 1st Feb. 1811, F. C. (p) See Bell's Coin., 
 
 and More's Notes tit supra. (r) Hamilton v. Wright's Tr.. 1836, 14 S., 325 ; 
 
 aft'L, 3 Sh. and M'L.. 127. (s) 1 Bell's Com., 329. 
 
 VOL. I. 2 K
 
 512 REI INTERVENTUS. §841- 
 
 trated by cases where expenditure of money by the tenant on im- 
 provements (/), and advances of money or furnishings by the cre- 
 ditor ((/), his suspending diligence (Ji) or liberating the principal 
 debtor (/), on the faith of the informal lease or cautionary obh'ga- 
 tion, as the case may be, have been held to make it effectual. The 
 same rule applies where a party has interposed or continued bound 
 as cautioner on the faith of an irregular obligation by another per- 
 son to secure his relief (A;), or to join him as co-cautioner (/). And 
 a verbal sale of lands, under the condition that the seller should 
 buy up the mid-superiority, in order that the subjects might be held 
 directly of the Crown, was sustained in favour of the seller on ac- 
 count of his having implemented that condition (m). Thus, also, 
 where a superior promised verbally to enter gratis a party intending 
 to purchase the property, locus penitentiae was held to be excluded 
 in consequence of the party having made the purchase on the faith 
 of the promise being fulfilled (w). 
 
 § 842. But part of Professor Bell's description of the acts which 
 constitute rei interventus is, that they should be " known to, and 
 permitted by, the obligor to take place on the faith of the con- 
 tract" (o) ; and in another place he observes that " the knowledge of 
 the party, wdio is imperfectly bound, that the other is proceeding 
 on the faith of the agreement, is a necessary ingredient in the plea 
 of rei interventus ; and this cither actual knowledge, or knowledge 
 to be implied from circumstances necessarily leading to the proba- 
 bility of loss without any means taken to prevent it" {p). This 
 view, however, which is not supported by any other authority, and 
 is not consistent with the decisions referred to in the preceding 
 section, has been disregarded by the Court in a late case, where a 
 party defending an action on an improbative guarantee in favour 
 of a bank, followed by cash advances on the faith of it, pleaded that 
 
 (/) As in Murdoch v. Moir, 18th June 1812, F. C— Campbell v. Dougall, 1813, 
 Hume D., 861— M'Rorie v. M'Whirter, 18th December 1810, F. C. 
 
 {g) As in Manderson v. M'Minn, 1802, Hume D., 90— Balfour v. Thomson, 1806, 
 ib., 94— Grant v. Johnstone, 1845, 7 D., 390_Sinclair v. Sinclair, 1795, Bell's Fo. Ca., 
 140. [h) Douglas v. Clapperton, 1809, noted in Hume D., 105 — Trotter v. 
 
 Martin, ib. — Campbell v. Monro, 1815, Hume D., 106. {i) Duumore Coal Co. 
 
 V. Young, 1st February 1811, F. C— M'Neill v. Black, 1814, Hume D., 103. 
 
 {k) Brown v. Campbell, 1794, M., 17,058— Martin v. Wingate, 1828, 6 S., 859— 
 Miller v. Dott, 1814, Hume D., 105— Ballantyne v. Carter, 1842, 4 D., 419. 
 
 {I) Henderson v. Murray, 1765, M., 16,986. (m) E. Kinghorn v. Hay, 1674, 
 
 M., 8414. (n) Gordon v. L. Pitsligo, 1674, M., 8415. (o) Bell's Pr., ? 26. 
 
 {p) 1 Bell's Com., 329.
 
 § ^4;l l:l'l IXTKIIVEKTUS. ')13 
 
 there was no relevant allegation of rei interventus, as the pursuer 
 (lid not alleo(' that the arlvances had heen made in the presence of 
 tiie defender or with his knowledge. The Court held that an aver- 
 ment of knowledge was not necessary (r) ; and, as to implied know- 
 ledge, their Lordships' opinions show tliat none is required heyond 
 that which exists in every case, where a party who has suhscribed 
 a writing for a certain purpose, and delivered it to the party in 
 whose favour or on whose hehalf it has heen granted, with the in- 
 tention and in the expectation that it should be used for that pur- 
 pose, does not take steps to prevent it from being acted upon." 
 
 § 843. It has sometimes been maintained that negative acts 
 will not create rei intcrventus. This however is erroneous (.s). A 
 party may be as much prejudiced by another's not acting as by his 
 positive proceedings, while it may have been the very object of the 
 agreement to produce such conduct. Besides, as Lord Fullerton 
 has remarked, most negative acts may be stated positively {t). The 
 only peculiarity attending them is, that as they are less easily iden- 
 tified, greater care should be observed in inquiring whether they 
 arose from mere omission, or from reliance on the informal contract. 
 
 if) Johnstone v. Grant, 1844, 6 D., 875. Lord Medwyn observed, " I confess I can 
 discover no authority in our law for holding that actual knowledge of the advance is 
 necessary in such a case ; it being quite suflScient in my opinion that it is what he 
 must have contemplated at the time he put his name to the writing, as it directly autho- 
 rised it ; and he must be presumed to know that it would be used for the purpose for 
 
 which it was granted, as in fact it has been I do not find the element of 
 
 knowledge that the writing was acted on mentioned in any of our authorities, except, 
 
 perhaps, the most recent one If the agreement has been acted upon, as the 
 
 granter plainly knew it was intended to be when he subscribed it, and gave it to his 
 friend to bo used by him for tliis very purpose, this is all that can bo required to raise 
 up a personal exception against him from pleading that it is an informal writ which he 
 granted." Lords Moncreilf and Cockburn followed in the same strain ; while Lord 
 Justice- Clerk (Hope) limited his opinion to its not being necessary in that particular case 
 to aver knowledge. (s) See Ballantyne v. Carter 1842, 4 D., 419. In Suther- 
 
 land V. Hay, 1845, 8 D., 283, several of the judges thought that such negative acts of 
 the landlord as refraining from advertising a house as unlet, and from preparing for a 
 new lease, woiild bar a party who had contracted with him from resiling from an infor- 
 mal lease of it. (<) Ballantyne v. Carter, supra. 
 
 11 The doctrine in the text, tliat averment of knowledge is unnecessary, was adopted 
 in Church of England Life and Fire Assurance Co. v. Wink, 1857, 19 D., 414, and 1081. 
 Advances to a principal obligant on the faith of an improbative cautionary obligation 
 will render the obligation binding on the cautioners. But the Court will not go beyond 
 the decided cases in sustaining the plea of rei interventus, " so far as founded on facts 
 belonging to the actual completion and fulfilment of the contract ;" Church of England 
 Life and Fire Assurance Co. v. Wink, svpra. per Lord Justice-Clerk (Hope) — United 
 Mutual Mining and General Life Assurance Society, 1800, 22 D.. 1185. 
 
 2 K •>
 
 514 EFi rxTFRVEXTrs. §843- 
 
 In the follo\A'ing cases negative acts were sustained. Where a ver- 
 lial o-narantee to see a debt paid before a certain day had been fol- 
 loAved by dehiy of proceedings till then, the cautioner was held to be 
 bound (ii). Where a verbal caution had been interposed after a 
 contract of sale vnth a solvent purchaser ; and where, in consequence 
 of the caution and of the cautioner's conduct, the seller had refrained 
 from diligence ; and in the interval the purchaser had become bank- 
 rupt ; the obligation was allowed to be proved by the cautioner's 
 oath (jc). But, in general, merely refraining from doing diligence 
 will not be sufficient ; otherwise it might be said that every infor- 
 mal cautionary obligation is validated by this means (?/). Yet, if 
 the creditor has not merely contemplated, but has commenced to 
 do diligence, his interruption of the inchoate proceedings will suf- 
 fice to make effectual an informal cautionary obligation which was 
 granted to him for that purpose (z). Thus, also, where a minister 
 raised a summons of augmentation against the titulars of the tiends, 
 and abandoned it on their agreeing to give him a certain amount 
 of stipend ; and where, after he had done so, the commission for 
 planting churches expired, and did not revive until he had left the 
 charge, in consequence of which he had been unable to raise a new 
 action during his incumbency ; the Court held that the titulars 
 could not resile from their agreement, because matters were no 
 longer entire (a). In like manner, it has been held enough to set 
 up an informal letter of relief, that the cautioner continued bound 
 on the faith of it (b). And where a tenant executed an informal 
 renunciation of his lease, and, on his death shortly afterwards, the 
 possession was continued, not by his heir-at-law, but by his widow 
 and children, this, although not involving any positive act by the 
 heir, was held to have made the renunciation effectual against 
 him (c). 
 
 (m) Clackmannan v. Nisbet, 1624, 1 B. Sup., 130. See next note. 
 
 (x) Campbell v. Monro, 1815, Hume D., lOG. In this case, and that in the preced- 
 ing note, the Court seem to have thought that verbal caution without rei interventus is 
 ineffectual, and cannot be proved even by the cautioner's oath. But this is erroneous ; 
 see § 597, et seq.^"^ {y) Bell's Crs. v. Dunbar, 1810, noted in Dunmore Coal Co. 
 
 V. Young, 1st Feb. 1811, F. C— 1 Bell's Com., 329, note 1. (z) Dunmore Coal 
 
 Co. V. Young, supra — Milne v. Smith, 1823, 2 S., 501 — Douglas v. Clapperton, 1809, 
 noted in Hume D., 105— Trotter v. Martin, 1817, ib.— M'Neil v. Black, 1814, Hume D., 
 103. (a) Park v. University of Glasgow, 1675, M., 2535. 
 
 {h) Martin v. Wingate, 1828, 6 S., 859— Ballantyne v. Carter, 1842, 4 D., 419. 
 
 (c) Milne v. Forbes, 1830, 8 S., 990. 
 
 12 But see § 601, note *.
 
 § 84o. UKl IM'KliVEM'UiS. 515 
 
 § 844. Acts wliich <.<)ii.stitiite rti inlerventuti may be piuved 
 prout de Jure, although the antecedent obligation relates to heri- 
 tage (d). Wliere the act is of such a nature that it could nut be 
 proved by parole as the sole ground of an ol (ligation or discharge 
 {e.g., intromission with, or payment of, money), yet, if it is founded 
 on merely as a fact of real intervention, it wcnild rather seem that 
 it may he proved jrrout dejure (e). And where the fact of payment 
 or intromission is averred by the party who received the money, or 
 who is liable to account for the funds intromitted with, it may be 
 proved by parole ; because the joroper written evidence of such a 
 fact is a discharge under that party's hand, delivered to the person 
 from whom the money was received (/). 
 
 Where the acts founded on as rei interventus are proved, but the 
 party seeking to resile denies that they took place on the faith of 
 the informal obligation, the Court will determine the question from 
 the relative characters and bearings of the obligation and the acts 
 in question, with the aid of parole evidence on any kindred circum- 
 stances {g). 
 
 § 845. As t(j the mode of proving the obligation, there is of 
 course no difficulty where it has been embodied in an informal 
 vnriting; because that, being the written constitution and measure 
 of the contract, is the only coiupctent evidence of its terms (/«). 
 Where the contract was constituted verbally, the best evidence of 
 it is the writ of the party seeking to resile ; e.g., his written admis- 
 sion ex post facto, or in a sale of heritage a receipt under the hand 
 of the seller, mentioning the sums paid as part of the stipulated 
 price. Failing written proof, the oath of the party who attempts 
 to resile may be resorted to. When writ is required for the consti- 
 tution of an obligation while matters are entire, rei interventus does 
 not open the door to proof at large of its terms ; but merely obviates 
 the want of WTitten evidence.^^ Accordingly, verbal sales of heri- 
 
 ((i) M'Lean i-. Richardson, 1834, 12 S., 865— Gray v. Johnstone, 1838, Macf., R., 
 54. (e) See supra, U 591, 609, 610. (/) See mpra, ib. 
 
 (g) See illustrative cases supra, § 827, et seq.; and Vise. Melville ti. Douglas' Tr., 
 1830, 8 S., 841— Grant v. Johnstone, 1845, 7 D., 390— Procurator-Fiscal of Roxbur^'li 
 I'. Ker, 1G72, JI., 12,410. See Laurie v. Craik, 1697, M., 8425, where in an action laid 
 upon a verbal sale of heritage and payment of the price, the Court required reference to 
 the defender's oath not only as to the terms of the alleged contract, but also as to 
 whether he received tlie money in contemplation of that bargain, or quo alio nomine J 
 Tliis was regarded as a reference of the terras of the bargain. See per Lord Fullerton 
 in Foggo V. Hill, 1840, 2 D., 1334. (A) Supra, \\ 114, 179, et seq. 
 
 Tlic statement, that rei interventus obviates the want of written evidence, seems
 
 516 REi lyTEKVEyTiS. §845- 
 
 tage and verbal obligations affecting that class of rights, when fol- 
 lowed by rei intervenkcs, may be proved by oath on reference, but 
 not by parole («). 
 
 § 846. This is thought to be also the rule in regard to verbal 
 leases for more than one year, followed by rei interventus (A').^'* 
 But there are two special cases in which so strict a view was not 
 taken. In one of them the term in an informal missive had been 
 omitted, and the Court held that the circumstances imphed it to be 
 for the tenant's life (?)• And in the other case, where there had 
 been a similar omission, and the missive implied a lease for years, 
 they allowed the tenant to prove that the landlord had intimated 
 by proclamation at the church doors that he would grant leases for 
 nineteen years to such of his tenants as would enlist in a certain 
 regiment, and that the parties had afterwards verbally concluded 
 a lease for that term, upon which the tenant had enlisted accord- 
 ingly {m). 
 
 § 847. Yet, although parole of the verbal contracts above re- 
 ferred to is inadmissible, an incomplete proof of their terms from 
 the writ or admission on record of the party, may be eked out by 
 proof _prow^ dejure of the possession by which they have been fol- 
 lowed. This is a corroUary to the rule mentioned above, that ani- 
 bigTious expressions in deeds may be construed with the aid of the 
 consequent usage or possession, being the parties' own exposition 
 of their meaning (n). Accordingly, where a party raised action for 
 removal of certain buildings from ground which he maintained be- 
 longed to him, and the defender pleaded that the ground had been 
 
 {() Laurie v. Craik, 1697, M., 8425— M'Lean v. Richardson, 1834, 12 S., 865— Rait 
 V. Galloway, 1833, ib., 131— Stewart v. Ferguson, 1841, 3 D., 668, per Lord Ivory (Ordi- 
 uary)— Contra, Proc.-Fisc. of Roxburgh v. Ker, 1672, M., 12,410. ^ (k) Neill 
 
 V. Cassilis, 22d Nov. 1810, F. C— M'Rorie v. M'Whirter, 18th Dec. 1810, F.C.— More's 
 Notes, 67. (0 D. Athole v. Spankie, noted in Hume D., 786. 
 
 {m) M'lieod v. Urquhart, 1808, Hume D., 840. (n) Supra, § 224, et scq. 
 
 lianUy accurate ; the obligation must first be proved by the appropriate and competent 
 evidence, and rei interventus does not obviate the necessity of written evidence, but 
 merely prevents repudiation; see supra, ? 832, note 7, and g 167, note n. A recent case 
 in the House of Lords has been held not opposed to this rule ; there the tenant of a 
 mineral lease was debarred from working out a certain part of the minerals ; he averred 
 tiuit he had got the permission of the landlord to work that part of the minerals, and 
 alleged the landlord's acquiescence, and acts constituting rei interventus; and the House 
 of Lords directed an issue. Whether the minerals were worked and removed with con- 
 sent of the landlord? Wark v. Bargaddie Coal Co., 1856, 18 D., 772; reversed, 1859. 
 3 Macqueen, 467 ; and see supra, ? 167, note ••. 
 1* See ante, ? 832, note 7.
 
 § 840. EARNEST. 617 
 
 transferred under a verl)til contract of excaml^iuii, followed by rel 
 intei'ventus ; but the pursuer, while admitting the contract, denied 
 that it embraced the ground in issue : the Court decided the ques- 
 tion upon the possession by which the contract had been followed, 
 and which was of a patent and very marked character (o). 
 
 § 848. Cautionary obligations and obligations of relief followed 
 by rei intervtutus may bu proved l)y writ or oath of party ; but 
 parole of them is inadmissible, except where they form integral 
 parts of such verl)al contracts concerning moveables, as may be 
 proved by witnesses {l^)}^ 
 
 § 849. Before concluding this chapter a few remarks may be 
 made upon earnest, arles, or arrhae ; which is in some respects an- 
 alogous to rei intervciitus. It is a sum of money or some other 
 moveable, given by one party to the other in a verbal contract of 
 sale, hiring, or the like, as a token that their communing has re- 
 sulted in a bargain. From some texts of the civil law (/•) it has 
 been supposed that this formality imports that either party may re- 
 sile from the contract ; the one by forfeiting the earnest, and the 
 other by restoring it, and as much more as penalty. But the op- 
 posite doctrine is more in accordance with the civil law (s), and 
 has been adopted in this country, namely, that, in general, earnest 
 is evidentia rei of the bargain ha\ing been completed ; and that, 
 after it has been given and received, neither party can resile by re- 
 storing or forfeiting {€). Lord Stair lays down broadly that giving 
 earnest prevents the contract from being any longer a nudum pac- 
 tum ; so that, matters not being entire, neither party can resile (u). 
 The decisions, however, do not warrant holding the payment of a 
 trifling sum in name of arles to have the same effect as rei intei'ven- 
 tus. It has been decided that an excambion of shares in a joint 
 stock company, which is a contract requiring writ for its constitu- 
 tion, was not made binding by a guinea having been given in name 
 of earnest {x). And where the parties to a verbal sale of stockings 
 
 (o) Vise. Melville v. Douglas' Tr., 1830, 8 S., 841. {p) See the 
 
 subject of this section fully noticed supra, §§ 599, 601, 835. 
 
 (r) Code, 5, 21, 17— Inst., 3, 24, Pr. {s) Dig., 18, 1, 35, Pr.— Code. 4, 
 
 49. 3— lb., 4, 10. 5. {I) Stair, 1,14, 8— Ersk., 3. 3, 5— Mack. Inst., 3, 3, 1— 
 
 Bell's Pr., § 173 (1)— Moiv's Notes, 95—1 Hunter on Land, and Ten., 345—2 Eraser 
 on Pers. and Dom. Rei., 376— Brown v. Ly. Wliitfinghiim, 1029. M., 8468— Wallace v. 
 Wishart, 1800, Hume D., 383— Topping v. Barr. 1830, 8 S., 973. [u) Stair, 
 
 supra. (x) Lawson v. Auchinlcck, 1099. M., 8402. With this case compare 
 
 15 By tlif Mercantile Amendmi-'nt Ac-t all such oblij:ations must be in writing; 19 
 and 20 Viot., c 00, § 6. 
 

 
 olS EARNEST. § 849- 
 
 sjtipulated that their contract should be reduced to writing, loom 
 penitent iae was lield not to have been excluded in consequence of a 
 dollar having been given as arles (y). Earnest, therefore, does not 
 obviate the want of written evidence in contracts whicli require 
 that solemnity (2). It is merel}^ a mark of concluded consent iu 
 bargains which may be validly contracted by simple verbal paction. 
 
 § 850. But where earnest is by uniform and notorious local 
 custom interposed in certain contracts, it becomes indispensable to 
 their constitution (o). On the other hand, so much is this matter 
 subjected to local usage, that either party may resile and forfeit the 
 earnest money, provided that be the custom of the district (6). In 
 any case, if the earnest has been returned and accepted, the bargain 
 is held to have been departed from by mutual consent (c). 
 
 § 851. When tbe earnest money is merely nominal in propor- 
 tion to the subject of the contract (as a shilling in a sale of a box 
 of diamonds), it is held not to be part of the price, but "dead 
 earnest ;" whereas it is computed in the settlement, if its amount 
 is considerable (d). 
 
 CHAPTER v.— OF HOMOLOGATION AS OBVIATING DEFECTS IN THE 
 AUTHENTICATION OF DEEDS. 
 
 § 852. Defects in the authentication of deeds may be obviated 
 by homologation. This may be defined as the assent or approval 
 which the grantor of a deed, or one to whose interest any writing 
 or transaction is prejudicial, interpones to it by a posterior act, so 
 as to exclude an objection whicli otherwise Avould have been com- 
 petent to him (a). The doctrine of homologation, in so far as it 
 
 Graham v. Corbet, 1708, M., 8428, where the payment of five guineas as part of the 
 price of shares of stock was held to be substantial rei interventus. It had not been given 
 expressly as arles. See also Fraser, syjira. 
 
 (y) Ogilvy V. Smart, 1700, 4 B. Sup., 473— Ersk., 3. 3, 5— More's Notes. 95— Fraser, 
 supra. (z) This is the proper meaning of the texts of the civil law above re- 
 
 ferred to, mpra (r)— See Ersk., supra. («) Bell's Pr., ? 173 (l)-2 Fraser on 
 
 Pers. and Dom. Rel., 377— See also Ker v. Downie, 1670, M., 8470. 
 
 (6) Watt V. Stewart, 1703, M., 8472. (c) 2 Fraser, 376, 7. 
 
 (</) Ersk., 3, 3, 5—2 Fraser, 377— Bell's Die, voce "Earnest." But Lord Stair (1, 
 14, 3) and Sir G. Mackenzie (Inst., 3, 3, 1) lay down generally that earnest money is 
 .•omputed in the price. {a) Stair, 1, 10. 11-Er.k., 3, 3, 47-1 Bell's Com.. 145 
 
 — More's Notes, 67.
 
 § 854. liUMOLOUATlON. 5 IK 
 
 relates to deeds nut validly executed, and sume uf its principles in 
 regard to kindred matters, will now be considered. 
 
 § 853. The granter of a deed will be barred from objecting to 
 the execution of it, if he has held it out as genuine, or acted upon 
 it on that footing (h). Tlic cases already cited in illustrating the 
 doctrine of rci iufcrvrnht.s support this rule, wherever the acts per- 
 formed on the faith of the contract were known to the party who 
 afterwanis iik'adeil the infdrmality {<■). In like manner, the objec- 
 tion that a marginal addition containing an essential part of a deed 
 of conveyance was not authenticated, was held to have Ijeeu re- 
 moved by acts of homologation by the granter of the deed (d). 
 
 § 854. Deeds executed by a person sui Juris, but labouring 
 under some incompetency created by positive law, may be made 
 effectual by the homologation of the parties to whose interests they 
 are adverse. Thus an heir-at-law will not be allowed to challenge 
 ex ccvpite lecti a deed of his ancestor, if he homologated it (c) ; and 
 an heir of entail may be barred by homologation from challenging 
 a preceding heir's deeds on the ground that they were in contraven- 
 tion of the entail (/). Thus, also, where a party in his will named 
 his eldest son and heir to be his executor, and appointed him to 
 manage certain leases of heritage, and to account for the profits to 
 the testator's widow, under deduction of a certain sum for his own 
 trouble ; and where the heir died after having entered on the man- 
 agement, and accounted and drawn the remuneration during one 
 year; and where on his death the tutor of his heir contended against 
 the widow and younger children of the common ancestor that the 
 leases, being heritage, could not be carried by testament; the Court 
 held that the acts of homologation excluded that plea {g). In like 
 manner homologation was held to bar tlie objection to a decree of 
 adjudication, that it had passed u[)on an iusufiicient citation (//). 
 
 (6) Authorities in preceding note — Smith v. Bank of Scotland, 25th Jan. 1821, F. C; 
 affd., 2 Sli. Ai>., 282 (as noticed per curiam in E. Fife v. E. Fife's Tr., 4 S., 340) — 
 M'Dowall V. Wigliton, 1830, h Mur.. lOG; 9 S., 12 S. C— M'Morran v. Black, 1024, M., 
 16,830— Cow V. Craig, 1033, M., 10,833— Telfor v. Hamilton, 1735, M., 5057— Cases in 
 More, 67, et seq. [c) Supra, g 840 — Cases in More, supra. 
 
 {d) Bruce »'. Bruce, 1770, M., 10,805; affd., 2 Pat. Ap. Ca., 258. 
 
 (e) Reg. Maj., 2, 18, 10— Ersk., 3, 8, 99—1 Bell's Com., 98— Crawford v. Crawford, 
 1083, M., 5694— Evskine v. Erskine, 1082, M., 5703. (/) Forbes v. Ronton, 
 
 1840, 3 D., 149— Cunningham v. Cunningham, 1823, 2 S., 232; affd.. 1 W. S., 103— 
 See also Mackenzie v. Mackenzie, 1767, M., 5605. {g) P^rdyce v. Fordyce, 
 
 1743, M., 5700. This is a case of approbate and reprobate, although it is not so re- 
 ported. (A) Geddy v. Telfer. 1681. 2 B. Sup., 0.
 
 CyIO IIOMOLUGATION. § 854- 
 
 Eveii the want of jurisdiction was obviated, where the party against 
 whom the decree had been pronounced had homologated it (i). So 
 where a submission stipulated tliat it sliould fall unless tlie arbiters 
 pronounced decree within three months, and they did not do so till 
 after two years had ehipsed, the Court held that the objection had 
 been cured by acts of homologation of the parties submitting (A-) ; 
 and a similar result followed where the objection to a decree-arbi- 
 tral was that the submission had terminated ex lege, on account of 
 not having been duly prorogated (?). 
 
 § 855. Homologation by the party concerned in them validates 
 (>l)ligations undertaken by a factor or agent tdtra vires mandati (w); 
 ami by a person as taking burden on him for another from whom 
 he had no mandate to act (ii). Also the sale of a minor's heritage 
 It}- liis friends on his behalf was held to have been homologated by 
 liis having in majority received part of the price (o). It follows a 
 fortiori that acts of homologation by a major will validate deeds 
 which he granted during minority without consent of his cura- 
 tors {p)\ and tliat deeds by a woman during coverture are valid, if 
 she homologated them in viduity (r). They may also be made 
 effectual against her husband (s), or her heir {t), by homologation 
 of these parties respectively. 
 
 § 856. The question was once raised (w), Whether deeds by 
 pupils are capable of homologation ? Erskine distinguished be- 
 tween them and the deeds just referred to, in this respect, that 
 ■while the act of a married woman creates a natural obligation, al- 
 though the granter is incapable of binding herself in law; and while 
 a minor's deed with the consent of his curators is effectual ; the 
 obligatory act of a pupil is a nonentity, because, like an idiot, he is 
 
 {i) Lowrie v. Gibson, 1671, M., 5G22 ; 2 B. Sup., 511, S. C. See White v. Spottis- 
 wood, 1846, 8 D., 952 ; and Livingstone v. Presb. of Hamilton, 1846, 8 D., 898. 
 
 [k) Dundee, Perth, and Aberdeen Rail. Co. v. Richardson, 1851, 13 D., 552. 
 
 (/) Fleming v. Wilson, 1827, 5 S., 906. (m) Robertson v. Robertson, 1831, 
 
 <) s., 865— Mackinlay );. Gillon, 1830, 9 S., 90— Stein's Assignees v. E. Mar, 1827, 6 S., 1 
 —Robertson v. Baillie, 1758, 5 B. Sup., 345— Crawford v. Crawford, 1683, M., 5694. 
 
 (n) M'Naughton v. Murray, 1792, Bell's Octavo Ca., 253. (o) Linton v. 
 
 Dundas, 1729, M., 5624. (js) Craig v. Moncrieff, 1611, M., 5711— Rires v. 
 
 Rires, 1663, M., 5619— Home v. Justice-Clerk, 1671, M., 5711; 5688, S. C— Lockhart 
 V. Lockhart, 1677. 1 B. Sup., 790; 2 ib., 218, S. C— Somervile v. E. Annandale, 1688, 
 M., .5694— Ersk., S, 3, 47—2 Eraser Pers. and Dom. Rel., 239. {r) Mitchell v. 
 
 fJunningham, 1672, M., 5711— Gordon v. Farquhar, 1766, 5 B. Sup., 932 — Ersk., supra 
 — 1 Fraser Pers. and Dom. Rcl., 254; and Womyss v. Stewart, 2d March 1773 (unre- 
 pr.rtfcd), there cited. f.s) Grant /.. Baillie, 1830, 8 S , 606. 
 
 (I) Tliomson r. Stewart, 1R4(). 2 1)., 564. [ti) Harvie v. Gordon. 1726, 
 
 M., 5712.
 
 § 857. HOMOLOGATION. 521 
 
 uatumlly iiictqtaltle of consent (x). But this view is opposed to 
 the law laid down hy Professor liell, that h(jniologation may give 
 effect to deeds which would otherwise Ijc null and in no degree 
 hinding, as well as to those which exist imperfectly and subject to 
 exception (?/). Erskine's doctrine is also questioned by Professor 
 More (z); and it cannot be reconciled with several decisions already 
 cited (a), where deeds which did not create any natural obligation 
 on a party were held to be effectual in consequence of his homolo- 
 gation. 
 
 § 857. Deeds to which the granter's subscription has been pro- 
 cured by means of fraud admit of being homologated (6), although 
 they arc as deficient in real consent as those signed during minority. 
 Even a deed to wliicli u [tarty's signature has been forged may be 
 rendered binding on him (at least in the hands of one who is not 
 accesst)ry to the fraud), in consequence of the party appearing to be 
 the granter having, either expressly or by his conduct, accredited 
 the deed as genuine (c).^ 
 
 (x) Erslc, 3, 3, 47. (y) 1 BvlVs Coin., 145— See, however, Bell's Pr., g 27. 
 
 (z) More's Notes, 68. (a) Supra, g§ 855, 887.— See also M'Gibboii v. 
 
 M'Gibbon, 1842, 14 D., 605. (6) Eigg v. Durward, 1776, M., 5672 ; M., 
 
 '• Fraud," Appx., No. 2, S. C. — More's Notes, 68. Can a deed extorted by force be 
 homologated ? See Thomsou v. M. Annandale, 1829, 7 S., 305. (c) Provan v. 
 
 Gray, 1821, 1 S., 92— Miller v. Little, 9 ib., 328— Maiklem v. Walker, 1833, 12 ib., 53 
 — Findlay v. Currie, 1850, 13 1)., 278— Reg. v. Parish, 1837, 8 Car. and Pa., 94— Barker 
 V. GingcU, 1800, 3 Esp., GO— Supra, §§ 568, 671. 
 
 1 A deed which is null may be adopted, and if so, is good from the date of adoption ; 
 but the party maintaining that such a deed has been adopted, will probably, at least if 
 the nullity be on account of the incapacity of the party, be required to establish the 
 dued by a declarator. Thus, where in a reduction of a deed as (1) null because of tlio 
 insanity of the grantor, or (2) reducible on the ground of facility and circumvention, 
 the pursuer took issues applicable to these grounds of reduction, the Court allowed the 
 defender, in answer to the second issue, to take an issue. Whether the granter, wlien 
 not labouring under weakness of mind and facility, homologated the deed ? But they 
 refused to grant an issue of homologation, as counter to the pursuer's issue, on the 
 ground of insanity ; because if the pursuer succeeded in that issue he nullified and de- 
 stroyed tlie deed, and therefore there was notliing that couM be liomologated. But tlu' 
 jtiirty founding on the deed might establish by declarator tliat. though tlie granter was 
 insane when he executed tlie deed, he adopted it when sane, in which case it would I'o 
 set up as at the date of the adoption ; but homologation of a deed inipetrated by fraud 
 validates it aft iViiVio; Gall r. Bovil, 1855, 17 D., 1027. A bank, as holder of a bill, 
 charged a party who, ex facie of the bill, was an indorser ; he suspended on the ground 
 that the indorsation was forged; the charger averred that other bills drawn by the same 
 party, and bearing the suspender's indorsation, had been previously di.-<counted at the 
 bank; that intimation of these had been sent to the suspender, and that he had taken 
 no notice of them. Ii\ thopo eiiiMinistfinces, the charger propo.^eil to take an issuo,
 
 ■)') HOMOLOGATION. § 858- 
 
 ii'1'1 
 
 § 858. It is not yet settled whether deeds vitiated by erasures 
 or alterations in suhstantialibus are in all cases incapable of homo- 
 lo^nition. No doubt a deed of entail, lahournig under such an in- 
 formality, cannot be validated by this means ; because, if the en- 
 tailer did not execute and record a valid deed, his heirs are entitled 
 to take the estate unfettered, and their acts cannot raise into a strict 
 entail that which, as executed by an entailer, was null (c/). It 
 is also thought that if a gratuitous deed to the prejudice of the 
 granter s creditors or his heir-at-law, contains a vitiation in essen- 
 fialibus, the right of these parties to challenge it would not be ex- 
 cluded by their homologation, even where there was no ground to 
 suspect that the alteration had been made fraudulently by the party 
 founding on the deed (e). 
 
 § 859. Again, if one who has right under a deed of any kind 
 has fraudulently vitiated it, his possession upon it in that state, and 
 his deriving from it benefits which the granter did not confer upon 
 him, will not entitle him to maintain his right on the ground of 
 homologation or acquiescence by the persons having the adverse 
 interest ; because that would l)e allowing him to profit by his fraud 
 to the prejudice of parties who cannot be presumed to have known 
 the true state of his title {/). Nay more, although the adverse 
 party cannot plead ignorance of the discrepancy between the deed 
 as executed and the subsequent possession (as wdiere he is one of 
 the parties to the document), his acquiescence in that possession, 
 combined with the vitiated document, will not constitute a valid 
 right in favour of the party who unwarrantably made the alteration ; 
 and if the right requires written proof ex solennitate, the homologa- 
 tion will not be admitted for the purpose of making the vitiated 
 deed effectual, on the ground that the adverse party afterwards as- 
 sented to its terms. 
 
 § 860. But if a transaction which does not require writing for 
 its constitution has been recorded in a document containing erasures 
 or other alterations in substcmtialibus, and if that document has been 
 
 (d) Shepherd v. Grant's Tr., 1844, 6 D., 464 ; aifd., 6 Bell's Ap. Ca., 153— Boswell 
 V. Boswell, 1852, 14 D., 378. (e) See|jer curiam in Robertson v. Ogilvy's Tr., 
 
 1844, 7 D., 244— Smith t-. Ranken, 1835, 13 S., 401 ; affd., 1 Rob. Ap., 178. 
 
 (/) Gr'ant v. Murdoch, 1830, 8 S., 734 ; 3 De. and And., 10, S. C. ; infra, § 872. 
 
 Whether the suspender had adopted and accredited the subscription? The issue was 
 refused, because mere silence as to other bills, which it was not alleged the suspender 
 had paid or had ever seen, did not amount to adoption of tlie bill in question ; Boyd v. 
 T'nif.n Bank of Scotland, 1854, 17 I)., 159.
 
 § 802. HOMOLOGATION. ^^^^ 
 
 followed liy mutual actings of the parties which nucquivocally ap- 
 ply to it in its altered condition, there is some dillieulty in deter- 
 mining whether the deed, as well as the consequent real evidence, 
 can be received as proof of the transaction. Its admission is 
 favoured by an old decision, which is reported in these terms — 
 "Where a minute is null from want of witnesses, and vitiated and 
 interlined, it is sustained as homologated by the party, in so far as 
 he has received an assignation appointed to be made by the other 
 party and has comprised thereon" {(j). Nor is there any doubt 
 that in practical life documents containing alterations in essential 
 particulars arc frequently used and acted upon in onerous transac- 
 tions. But such cases raise a dilemma. If the acts of real evi- 
 dence are in themselves sufficient proof of the terms of the transac- 
 tion, tlie admission of the deed is unnecessary; whereas, if they 
 are not sufficiently explicit, and if the vitiated deed were admitted 
 to eke out or explain their meaning, an interpretation might thereby 
 be put upon them which they do not warrant, and jjerhaps one in- 
 consistent with that which would have been drawn from them in 
 connection with the document as originally framed. A similar diffi- 
 culty, however, exists to some extent in every case where question- 
 able evidence is admitted. On the whole, it is thought that the 
 writing, although altered in essential respects, may be received as 
 exegetical of the subsequent and relative actings of the parties. 
 This has been repeatedly done in regard to transactions in re merca- 
 toria. And bills and other mercantile documents have often been 
 sustained in their altered state, upon proof that they represented 
 the contract really entered into between the parties {h). Such 
 cases indeed, do not properly stand upon homologation of a docu- 
 ment containing vitiations. They are rather cases of contract 
 proved by facts and circumstances, the written record of which oc- 
 cupies a subsidiary place in the proof, and ought not to receive effect 
 in any particular in which it is not fully corroborated by the real 
 evidence. 
 
 § 861. A distinction must also be drawn between \atiations in 
 the body of a deed, and those which occur in the testing clause, or 
 relate to the authentication of the deed as a wdiole. Homologation 
 will obviate the latter, in the same way as it will cure the want of 
 the statutory solemnities. 
 
 § 862. As consent to the informal contract is essential in obli- 
 
 (g) Gordon v. I,.vlo, 1020, M., 17,012. {h) See infra. ? 889, et seq.
 
 524 HOMOLOGATION. § 862- 
 
 gations validated by rei interveiitus, so assent to it ex post facto is the 
 indispensable and characteristic element in all acts which may create 
 homologation (/). Conseqnently, one who is incapable of legal ob- 
 ligation cannot homologate. This is the case as to the acts of a 
 pupil or an idiot (A-), a wovaim. vestita vivo (I), and a minor without 
 consent of his curators (m). Acts of homologation by a minor 
 with his curator's consent were held not to create homologation of 
 a deed granted on deathbed by the minor's ancestor, which bene- 
 fitted the curators but prejudiced the minor (w). And although a 
 submission entered into by a wife regarding her heritage, bearing 
 nullities under the act 1681, c. 5, was held to have been homologated 
 by her husband having appeared and pleaded on her behalf before 
 the arbiters ; " for the husband being administrator for his wife, 
 his consent implies her consent" (o) ; — yet where a person on 
 deathbed disponed his heritage to his daughter (who was his heir- 
 at-law) and her husband in conjunct fee, whom failing to her hus- 
 band's heir ; and the spouses possessed on the deed jointly for many 
 years, the heir of the daughter was held entitled to challenge it ; 
 because the daughter's possession having been under the influence 
 of her husband, and his possession having been for his own advan- 
 tage, and not in his character of administrator for his wife, their 
 joint acts did not infer homologation (|>). On the same principle, 
 a deed of ratification executed by a debtor, while a process of rank- 
 ing and sale of his estate was depending, and therefore after the 
 matter had become litigious, was held not to bar the challenge of 
 competing creditors (r). 
 
 § 863. The principle, that assent is indispensable to homologa- 
 tion, implies that a party must be fully aware of the existence of 
 the deed supposed to be homologated by him, and with the state of 
 matters as afi'ected by it (s). Thus, where a bond had been drawn 
 in name of several apprisers, and subscribed by some of them, one 
 
 (?) stair, 1, 10, 11 — Ersk., 3, 3, 48—1 Bell's Com., 144— See analogous cases under 
 rei interventus, ? 816. {h) Ersk., 3, 3, 47— Morton v. Young, 11th Feb. 1813, 
 
 F. C. {I) Ersk., suprar—GiX&j v. Gray, 1672, M., 3324. [m) Brodie v. 
 
 Brodie, 1827, 5 S., 900— M'Gibbon v. M'Gibbon, 1852, 14 D., 605. 
 
 («) Irvine v. Tait, 1808, M., " Deathbed," Appx., No. 6. (o) Telfer v. 
 
 Hamilton, 1735, M., 5657. {p) Gray v. Gray, supra. (r) Harkness v. 
 
 Graham, 1833, 11 S., 760. (s) Stair, 1, 10, 11— Ersk., 3, 3, 48—1 Bell's Com., 
 
 14.S_0gilvie v. Scott, 1694, M., 5652— Stewart v. Baillie, 1841, 3 D., 463— Anderson v. 
 liank of Scotland, 1836, 9 Sc. Jur., 66— Shaw v. Shaw. 1851, 13 D., 877, and cases in 
 following notes— See also Cochrane v. Black, 1856, 17 D.. 321— L. Panmure v. Crockat, 
 1854, ib.. 85.
 
 § 8G4. HOMOLOGATION. 525 
 
 wlio had not subscribed ^vas lioM not to liave homologated it l)y 
 liaving concurred in certain legal itrocecdings in conformity with 
 its tenor ; there not being ground to infer that he knew of its exis- 
 tence (t). So where a party had for several years accepted the in- 
 terest on certain provisions in her father's deed of settlement, she 
 was held not to be thereby barred from claiming leyitiin, because 
 she had all the time been ignorant of its amount {u). And wdiere 
 a widow was entitled to £1000 oipis relictae and £20 of teroe ; and 
 lier husband executed a settlement making very inferior provisions 
 in her favour, and declaring that she was to forfeit these in the 
 event of a second marriage ; and where she and the other par- 
 ties concerned, acted for several years on the footing of the deed 
 being unchallengeable ; it was held competent to her to recur to her 
 legal rights, because any acts done by her as in homologation of the 
 deed, having been in ignorance of these rights, could not prove her 
 consent to surrender thorn {x). A fortiori^ if the party founding 
 on certain acts of an api)robatory character, has improperly con- 
 cealed from the other party the legal right of which the latter is 
 supposed to have deprived himself, these acts will not infer homo- 
 logation (?/).2 
 
 § SG4. But where a decree of apprising bore that a certain cre- 
 ditor was to rank iKiri passu with the party who had raised the 
 action, and tliat the latter had consented to that arrangement, and 
 where both the creditors named in the decree concurred in a fac- 
 tory for drawing the rents and paying them in terms of the decree, 
 an action of reduction which the original appriser raised of the decree, 
 on the ground that the consent referred to had not been signed by 
 him, was repelled on the ground of his homologation ; and his plea, 
 that " it was ignorantia juris that made him subscribe such a factory," 
 was disregarded (z). It appears from one of the reports of this case 
 
 [t) Telfer v. Maxton, 1061, M., 5631. {u) Johustone v. Paterson, 1825, 4 
 
 S., 234. (a-) Hope v. Dickson, 1833, 12 S., 222. [rj) Murray v. Murray's 
 
 Tr., 1820, 4 S., 374— And see Robertson v. Baxter, 1821, 2 Mur., 425. 
 
 (z) Charters v. Barry, 1087, M., 5050. In Graham v. Jolly, 1831, 5 W. S., 297 ; 
 Lord GitTurd laid down broadly tliat in cases of homologation ignorantia juris neminem 
 
 2 When homologation is pleaded by trustees against the claims of beneficiaries, or of 
 a widow, or the heir, or children, it must be shown that the acts founded on were done 
 by the parties in the full knowledge of their legal rights and of the value of their 
 claims ; Keith's Trustees v. Keith, 1857, 19 D., 1040 — See also Douglas v. Douglas' 
 Trustees, 1859, 21 D., 1006. Where a trustee for behoof of creditors, being an agent, 
 made professional charges, and the truster passed his accounts, — the truster was allow- 
 ed to challenge the accounts, because it was not shown that he knew that the tru.<tee 
 was not entitled to make professional charges; Lauder r. Millar.-*, 1859, 21 D.. I'i'yS.
 
 526 HOMOLOGATION. § 864- 
 
 that the objection to the decree was the want of the party's subscrip- 
 tion to the consent, which in point of fact he had adhibited. He 
 was therefore nnder a natural obligation to fulfil the decree. In 
 like manner, where a party really consented to a deed not formally 
 executed by him, his subsequent acts of homologation will bar his 
 right of challenge, and he will not be heard to plead that he did 
 not know the legal consequences of the informality. But where a 
 party was under no natural obligation to implement a deed, ignor- 
 ant ia Juris has been regarded as a sufficient answer to the plea that 
 he homologated it. This principle appears in the cases already 
 mentioned, where the ground on which parties Avere held not to 
 have homologated deeds containing provisions loss favourable than 
 their legal right was, that they had not been aware of the nature 
 and extent of the latter (a). The same doctrine is supported by a 
 decision where an heir-at-law, who was young and inexperienced, 
 succeeded in challenging a deathbed deed granted by his ancestor 
 to his prejudice, although he had executed a deed of ratification of 
 it ; the Court being satisfied that he had not been made properly 
 aware of the legal rights which the deed of ratification bore that he 
 had gratuitously abandoned (b). He had been cognizant of the 
 fact that his ancestor's deed had been executed on deathbed, but 
 not of his consequent legal right to take the grantor s whole heri- 
 table estate unafiected by it. 
 
 The Lord Justice-Clerk Hope observed in a recent case, — " I do 
 not think that knowledge in minority is to be held as suflicient to 
 instruct knowledge after the minor has attained majority" (c). 
 
 § 865. In one case, where a party challenged a deed on the 
 ground that one of the instrumentary witnesses had not seen him 
 subscribe or heard him acknowledge his subscription, and the party 
 founding on the deed denied the alleged informality and pleaded 
 alternatively homologation; the Court refused to allow him a 
 counter-issue of homologation, on the ground (infer alia) that that 
 would require averment and proof that the other party was aware 
 of his legal rights before homologating ; whereas there was not only 
 no averment of such knowledge, but, on the contrary, tlie averment 
 that no defects requiring homologation did exist (d).^ Without 
 
 excusat. But the judgment did not involve that general question. (a) Supra, 
 
 'i 863. See also Stewart v. Baillie, 1841, 3 D., 463. {h) Murray v. Murray's 
 
 Tr., 1826, 4 S., 374. (c) M'Gibbon v. M'Gibbon, 1852, 14 D., 611, per L. Just.- 
 
 Cl.'llope.' {d) Shaw v. Shaw, 1851, 13 D., 877. 
 
 3 Shaw r. Shaw is thought not to be a case of high autliority; see siqjra, § 729,
 
 § 866. HOMOLOrJATION. 527 
 
 presumiii<>- to question this decision as applicaljlo to tlie reronl in 
 tlie particular case, it is tlionglit to bo clear that tlie pleas of infor- 
 mality and lioniologation may 1)0 put in issue alternatively (e). The 
 party fouinhiio- on the deed may plead — 1st, it is formal, and I deny 
 that it lies under any latent ol)jection ; — and, 2d, if it does, the 
 other party knew of the fact (altliougli I did not), and, with that 
 knowledge, acted upon and homologated the deed. Nay, does not 
 the averment of homologation imply an averment that the party 
 homologating knew of the defect; so that express allegation of 
 knowledge is not indispensable ? 
 
 § 866. Homologation may be either express, as by executing a 
 deed of ratification, or implied from acts which unequivocally show 
 that the party assented to the deed in c[uestion, and which cannot 
 fairly be ascribed to any other purpose (/). What facts are sutK- 
 cient to imply homologation cannot, therefore, be stated by antici- 
 pation, as each case must depend on its o^\ni special circumstances. 
 It may be observed, however, by way of illustration, that while pay- 
 ment or other acts of implement usually betoken approval, yet, if 
 they were performed by a party under the pressure of legal dili- 
 gence or process, they lose their efiect of inferring homologation (g). 
 Nor is this in general implied from sul)scribing as witness to the 
 deed under challenge, because the witnesses are not presumed to 
 know the terms of the deed which they attest (Ji). In the case of 
 an heir-at-law attesting his ancestor's deathbed deed, it is farther 
 to be presumed that ho did so from fear of offending the grantor l)y 
 refusal (/). But homologation was inferred whore the heir-at-law 
 had both written and attested the deathbed deed (k). It has also 
 been implied from the simple act of attestation, where that indi- 
 cated assent ; as in cases of marriage-contracts attested by members 
 
 (e) See Anderson v. Bank of Scotland, 1836, 9 Sc. Jur., 66— Finlay v. Cuirie, 1860, 
 13 D., 278— Gibson v. Huttous, 1828, Macf. on Issues, 542— Walker v. Walker, 1844, 
 ib., 545 — Sim v. Cniikshanks, 1844, ib. — riiilp v. Pitcairn. 1838, ib., 549. 
 
 (/) Stair, 1, 10, 11— Ersk., 3, 3, 48—1 Bell's Com.. 145. (ff) Stair. 1, 10, 11 
 
 — Ersk., 3, 3, 48 — Dunbar v. Vassals of Mucbrome, 16G2, M., 6715 — Rue i-. Houstou. 
 1668. M., 16.484— Jack v. Fiddes, 1661, M., 5633; 2923, S. C— Burnet v. Ewen, 1680. 
 M., 16,494; cotUra, Bishop of Ross v. Foullcr, 1760, 2 B. Sup., 479. 
 
 (h) Ersk., aupra^l Bell's Com., 145— Cases in M., 6629, 30 ; 5638 ; 5646 ; 5654. 
 
 (\) Dallas V. Paul, 1704, M., 5677— Ersk., supra— 1 Bell's Com., 98. 
 
 {k) Brown v. Muir, 1736, M., 5624— Elch., " Deathbed," No. 6. 
 
 note 17, and remarks of Lord Ivory in M'Noillie v. Cowie, 1858. 20 D.. 1229. 30 Scot. 
 Jur.. 727. 
 
 VOL. 1. 2 J,
 
 528 HOMOLOGATION. § '86G- 
 
 of the family (0, ^^^'-^ ^ lease by a bishop witnessed by a member of 
 the chapter (m). So the Court hekl as equivalent to consent by a 
 husband, his having written and attested (n), and even having 
 simply attested his wdfe's deed (o). 
 
 § 8G7. Of course, homologation will not be inferred from acts 
 which took place under protest, or on a reservation of the right of 
 challenge (p).* 
 
 § 868. Homologation implied from a party's conduct has the 
 same effect as an express deed of ratification. It confirms as a 
 whole a deed which is indivisible ; whereas, if the deed consists of 
 independent parts, the homologation of one portion does not ratify 
 the remainder (r). Where a deed executed on deathbed contained 
 provisions in favour of several brothers and sisters of the heir-at- 
 law, payments made by him to some of them have been held to in- 
 fer homologation as to them all (s). But there must often be cases 
 where the party entitled to challenge a deed in favour of several 
 persons would be willing to abandon his objection only as to some 
 of them ; and, therefore, it is thought that circumstances which in- 
 dicate his disfavour, or even his indifference, to the persons who 
 found on acts relating to other grantees would be sufficient to limit 
 the effect of the homologation to its immediate objects. 
 
 § 869. Homologation, while it bars objections by the party ho- 
 mologating, and his representatives, does not affect third parties 
 competing on a real right (t). Thus, the debtor's homologation of 
 an heritable bond on which infeftment had followed, was held inef- 
 fectual to support it as a real right in competition, although suffi- 
 cient to make it binding as a personal ol)ligation (w). Lord Kil- 
 
 (Z) Davidson v. Davidson, 1714, M., 5652— Johnstone v. Berry, 1725, M., 5657— 
 Ersk., supra. {m) Bishop of the Isles v. Schaw, 1631, M., 5630. 
 
 (n) Riddell v. Scott, 1728, M., 5681. (o) Hepbiirn v. Kirkwood, 1686, M., 
 
 5650. {j}) Ersk., 3, 3, 49—1 Bell's Com., 146— Malcolm v. Barden, 1823, 2 
 
 S., 410— Crichton v. Crichton's Tr., 1826, 4 S., 553 ; affd., 3 W. S., 329— See Adam v. 
 Wylic, 1832, 5 D., 391, a special case as to reservation not commnnicated to the party 
 founding on the homologation. (r) Stair, 1, 10, 11—1 Bell's Com., 146. 
 
 (s) Steel V. Steel, 1774, M., 5669— Erskine v. Erskine, 1682, M., 5703; 5 B. Sup., 
 471. {() Ersk., 3, 3, 49—1 Bell's Com., 146-Bogle v. Hers, of Sandyhills, 
 
 1735, M., 8409. (w) Liddle v. Dick's Crs., 1744, M., 5721 ; Elch., " Homolo- 
 
 gation," S. C— See also Harkness v. Graham, 1833, 11 S., 760. 
 
 * Ratification hy children of their father's settlement, constituting his wife his uni- 
 versal legatory, was held not to bar their claim for legitim, because such a will carried 
 nothing but the dead's part; White v. Finlay, 1861, 24 D., 38.
 
 § 871. VITIATION IN DEEDS. 529 
 
 kciraii, ill reporting this decision, observes, that "it has never been 
 fouiiil ill ;iuy ease th;it liumologation was good in a competition." 
 But rrolbssor Bell considers this expression to be a " little too 
 broad" (x). There do not seem to be any cases defining the ])r()per 
 limits of tjie rule. 
 
 § 870. According to Mr Erskine, homologation gives the right 
 to which it applies the same ellect as if" it had been valid from the 
 beginning (i/). With more discrimination the learned Professor 
 whose opinions have been so often quoted in this chapter, lays down 
 that " where there is already an obligation existing, though im- 
 perfect or subject to exception, homologation may have the effect 
 of confirming it as good from the first. But where the deed or 
 obligation is null, homologation acts only as the adoption of what 
 is reduced to an intelligible and precise shape, but is in no degree 
 binding ; and the binding effect has in this case no retrospect" (z).^ 
 In the one event the homologation, being merely a waiver of a 
 technical objection, draws back to the date when the contract re- 
 ceived its essential element of consent. In the other, that was ad- 
 hibited subsecpiently, when by homologation the party for the first 
 time undertook the obligation. 
 
 CHAPTER VI. — OF DEEDS OBJECTED TO ON THE GROUND OF 
 VITIATION. 
 
 § 871. Integrity in the text is essential to the validitj' of every 
 deed ; and therefore alterations by deletion, superinduction, era- 
 sure, or the like, in any substantial part of it are almost always 
 fatal, unless the testing clause shows that they were made before 
 the deed was executed (a) . The reason is, that without such notice 
 the deed does not bear to have been authenticated in its altered 
 state ; and there is therefore no proof that the alterations were not 
 made after execution and without the authority of the grantor. 
 
 (x) 1 Bell's Com., 146, note 4. (y) Ersk., 3, 3, 49. 
 
 (z) 1 Bell's Com., 145. B.v this passage correct Bell's Pr., ? 27. 
 (a) Supra. § 724. 
 
 s This statement of the law is adopted by Lord Cowan in Gall r-. Bird. 185'). 17 I)., 
 1027. 
 
 •2 l2
 
 530 
 
 VITIATIONS IN DEEDS. § 871- 
 
 AVhere the alteration is by wordf! superinduced or written on era- 
 sure the objection is twofold, namely, 1st, That words which were 
 contained in the writing as executed have been obliterated ; and, 
 2(7, That words to which the grantor did not consent have been 
 substituted for them. Besides, the obliteration of essential parts of 
 a deed may have been the act of the granter ; and when it is not 
 mentioned in the testing clause, there is room for supposing that it 
 may have been made for the purpose of revocation (6). 
 
 It depends on the terms of each deed what are to be held altera- 
 tions 171 suhstantialihus. The following cases illustrate the views of 
 the Court on the point. 
 
 § 872. The subject of a deed is in suhstantialibus. According- 
 ly, where a bond had manifestly been altered from a smaller to a 
 larger sum, the Court held it to be null, and refused {in poenum 
 falsi) to sustain it for the sum originally agreed to (c). So where 
 in a disposition of land by a father to his second son, two lines were 
 erased, but without superinduction, in the place where the measure- 
 ment should have appeared, in an action raised by the father's heir 
 to have it declared that the disponee's widow possessed under the 
 deed a larger subject than had truly been conveyed, the Court, con- 
 sidering that the original description had been intentionally erased, 
 restricted the widow's right of possession ; and one judge (Lord 
 Cringletie) considered " that the erasure was of such a description 
 as to reduce the deed in toto. There might have been a restriction 
 to a right of liferent" (a'). In another case an instrument of 
 sasine in Coblehouse and other lands was held null in a claim for 
 enrolment on account of " Jiouse" bemg on erasure ; the rest of the 
 subjects not being sufficient for a qualification (e). 
 
 § 873. A^itiation in the name of the grantee is also fatal. This 
 was held where, throughout a mortis causa disposition, the letters 
 ohn of the disponee's christian name John were on erasure ; there 
 being no doubt that it had originally stood James ; and the testing 
 clause not mentioning that the alteration had been made before 
 subscription (/). And where the investiture in a deed of entail 
 
 (6) See the principles on which vitiations are fatal clearly stated by Lord Chancellor 
 Cottenham in Shepherd v. Grant, 1844, 6 Bell's Ap. Ca., 171 ; affirming, 6 D., 464. 
 
 (c) Lawrie v. Reid, 1712, M., 12,284— M'Douall v. Rep. of Kennedy, 1723, M., 
 17,063; aflfd., Rob. Ap., Ca., 488— Deans, 1673, 3 B. Sup., 9. (d) Grant v. 
 
 Murdoch, 1830, 8 S., 734; more fully reported in 3 De. and And., 10. 
 
 (e; Innes v. E. Fife, 1827, 5 S., 559 ; 2 W. S., 637. This case occurred before the 
 act 6 and 7 Will. IV (noticed infra, ? 882), as to erasures in instruments of sasine. 
 
 (/) Reid V. Redder, 1835, 13 S., G19; affd., 1 Rob. Ap. Ca., 183.
 
 § 874. \1T1ATI0NS IN DEEDS. .531 
 
 was to the entailer in liferent, and the heirs-male of his body in fee, 
 " whom failinf;-, to the eldest son living at the time of my decease" 
 &c., " whom failing," to another substitute, the words in italics be- 
 ing written on erasure throughout the deed, it was held null as to 
 all persons whose rights depended on the validity of the substitu- 
 tion so vitiated (</). But a vitiation in ihc name of one who is sub- 
 stituted to the heir founding on the deed, will nut annul it as to 
 the latter, because his right is independent of that of the heir whose 
 nomination is invalid (h). 
 
 § 874. Vitiations in the names of some of the trustees in a 
 trust-deed, or some of the executors in a will, do not annul the 
 deed, since the death or non-acceptance of these parties would not 
 defeat the purposes of the grantor (/). But it is doulitful whether 
 vitiation in the names of all the trustees, or in the name of a trus- 
 tee sine quo non, is not fatal as inferring cancellation {k). The 
 names of all the executors in a will being on erasure does not, it is 
 thought, void legacies which the will contains ; since these may be 
 validly bequeathed without nominating an executor.^ 
 
 {y) Shepherd v. Grant, 1844. 6 D., 464 ; affd., 6 Bell's Ap. Ca., 153. 
 
 {h) Maxwell ?;. Houston, 1725, Kob. Ap. Ca., 539— Ahernethie v. Forbes, 1835, 13 
 S.. 263— Richardson v. Biggar, 1845, 8 D., 315. [i) E. Traquair v. Hender- 
 
 son, 1822, 1 S., 527— Robertson v. Ogilvie's Tr., 1844. 7 D., 236— Richardson v. Biggar, 
 ff?/j»m— Kemps v. Ferguson, 1802, M., 16,949. [k) See per Lord Fullerton in 
 
 Robertson v. Ogilvie's Tr., supra. A trust-deed blank in the names of all the trustees is 
 null ; Pentland v. Hare, 1829, 7 S., 640. 
 
 1 A trust-deed will receive effect although all the tru.stees decline, or all predecease 
 the granter. It is clear, also, that a trust-deed will receive effect though the truster re- 
 cal the nomination of all the trustees mentioned in the trust-deed, or draw his pen 
 through their names, provided he nominate trustees in a codicil, holograph or otherwise 
 authenticated. It has been argued that, in such cases, the heritage is not validly con- 
 veyed, becau.'?e, in consequence of the ncal of the nomination of the trustees in the 
 trust-deed, there is no disponee in the dispositive clause, and the mere nomination of 
 ti-ustees in a codicil cannot supply the place of a de presenli conveyance. But that argu- 
 ment has been overruled, on the ground that it is fixed law that all the testamentary 
 deeds of a deceased are to be regarded as one settlement, the basis of which is the trust- 
 deed, if any ; and that, therefore, the nomination of trustees in a codicil imports their 
 names into the trust-deed, and brings them within the scope of the dispositive words. 
 Where a truster deleted the names of all of his trustees in his trust-deed, and named 
 new trustees in a holograph marginal note, signed by him, l>ut not noticed in the test- 
 ing clause, the deed was sustained. The marginal note was referred to in a liologi-aph 
 codicil, but the deed would, it is thought, have been sustained although there had been 
 no such codicil ; Royal Infirmary of Edinburgh v. Lord Advocate, 1861, 23 D., 1213. 
 Further, if a truster recal the nomination of all his trustees, and do not nominate 
 other trustees, there seems strong reason for holding that the deed would be sustained.
 
 532 VITIATIONS IN DEEDS. § 875- 
 
 § 875. The duration of a right is in substantialibus. Thus the 
 Court annulled a lease which had been altered from three to five 
 years (!) ; and a bond of thirlage which had been changed from a 
 temporary to a perpetual right (m) ; and another deed of the same 
 kind, from which there had been cut off a marginal addition limiting 
 the obligation to the landlord's minority (n). So, a back letter by 
 an absolute disponee, obliging him to reconvey before Martinmas 
 in the year eighteen hundred and forty-eight was held null, because 
 the word "forty" had been either superinduced or Avritten on 
 erasure (o). 
 
 § 876. Where the prohibitory clause in a deed of entail was 
 against selling, ahenating, &c., "either irredeemably or under re- 
 version," but the letters " irred" were on erasure, it was held to be 
 vitiated in the essential of a prohibition against alienation, and 
 therefore to be null as a deed of entail (p). The deed might ori- 
 ginally have borne the word "redeemably" but been altered after 
 subscription ; and in a previous case (r) a deed of entail containing 
 the word " redeemably" in mistake for " irredeemably" but without 
 vitiation had been cut down. In the case of Boswell the word as 
 
 {I) A B, 1625, M., 16,925. (»*) Ross v. Garden, 1685, 2 B. Sup., 80. 
 
 (n) Cunuingham-bead v. Town of Lanark, 1628, M., 12,274. (o) Kirkwood 
 
 V. Patrick, 1847, 9 D., 13G1. (p) Boswell i>. Boswell, 1852, 14 D., 378. 
 
 (r) Eglinton v. Montgomery, 1845, 7 D., 425; affd., 6 Bell's Ap. Ca., 136. 
 
 Though they had all predeceased the truster it would be sustained ; and it seems ditfi- 
 cult to give to their recal a stronger effect. Though, perhaps, the rules of feudal con- . 
 veyancing may require a de presenti conveyance to a disponee, it is not required that, 
 when a trust-deed comes into operation by the death of the truster, there should be a de 
 presenti conveyance to any existing disponee. It seems sufficient that there was a tnist- 
 disponee originally, though he may have died before the deed was effectual ; the pro- 
 visions to the beneficiaries having been made in a deed complete when it was made, it 
 is thought that the mere recal of the trust machinery would not affect the provisions in 
 their favour ; Lord Curriehill (Ordinary) in MacKilligin v. MacKilligin, infra. Tlie 
 deletion of the names of all the trustees would appear to put the deed in the same posi- 
 tion as if the nomination of trustees had been recalled, or as if they had all died ; and, 
 therefore, it is thought consistent with authority and principle to hold that the^deletion 
 of the names of all the trustees is not a vitiation of the trust-deed in substantialibus. 
 It may be open to doubt whether a trust-deed in which no trustees are named will, 
 in all cases, be regarded as null ; or whether the beneficiaries may not be regarded as 
 the true disponees ; Loiil Mackenzie in Ogilvic v. Robertson, supra — Lord Ivory in 
 Royal Infirmary of Edinburgh v. Lord Advocate, 23 D., 1222. A trust conveyance of 
 moveables without a trustee or executor would be effectual. In Pentland v. Hare, re- 
 ferred to in tlie text, the deed which was not sustained was, when it was signed, blank, 
 not only in the names of the trustees, but also in all the more important purposes of the 
 Irust ; Robertson v. Ogilvie's Trustees, 1844, 7 D., 236— MacKilligin v. MacKilligin, 
 1855, 18 D., 83— Royal Infirmary of Edinburgh v. I.onl Advocate, 1861, 23 D.. 1213.
 
 § 870. vri'rA'i'iONR in deeds. 533 
 
 sii])criii(liiced coiiKjidcd with the; whole uhject and tenor rd" tlie deed; 
 and there could not 1)0 the shadow of a doubt that the vitiation 
 arose from no other cause than ehiro;4rai)hical inistake. A decision 
 e(|ually against real justice, but following from the rigid rules which 
 have been adopted in this class of cases, was pronounced shortly 
 afterwards. In a deed of entail, framed and recorded for the pur- 
 pose of preventing alienation and alteration in the order of succes- 
 sion, the })rohibition on tlie latter head commenced with the words 
 '' That it shall not be lawful to or in the [lower of any of my said 
 disponces," &c., but the words not he laioful were on erasure, and 
 the testing clause did not mention the fact. A minute examina- 
 tion showed traces of several letters which had originally occupied 
 the space, and which would have suited the words " be lawful to. " 
 The Court were not much impressed with the faint remains of the 
 original words ; but having no doubt that the erasure occurred 
 in suhstantialihus of the deed, they w'ere reluctantly constrained by 
 the previous authorities to hold the deed to be imll (s). It is not 
 surprising that more than one eminent judge, in deciding this case 
 and the previous case of Bos well, should have regretted that the 
 law, as settled by a long train of decisions, left them no altei'native 
 but to reduce the deeds in which such errors occurred. In particu- 
 lar, Lord Iiutherfurd in the case of Fraser, following Lord Fuller- 
 ton's opinion in Boswell's case, observed " that there Avere decisions 
 which pointed at other principles ; and wdiich, concurring with 
 sound legal principles, w'ould have led to the adoption of what 
 would have been a much safer rule for the safety of the lieges. 
 The matter has come to such a height that it requires, for the safety 
 of the country, immediate statutory interference." ^ 
 
 (a) Fraser v. Fraser, 1854, 16 D., 863. 
 
 2 In a recent case where an entail was challenged, the law of erasures was thus laid 
 down, — "An erasure not mentioned in the testing claiise is presumed to have been 
 niiuU' after subscription, and the letters or words written on erasure are not authenti- 
 cated," .... and " are held not to have been written. If the letters written 
 on such an erasure are essential to the word, the word is held not to be there. If 
 the word is essential to the clause, the clause is held not to be there. If the clause 
 is essential to the deed, the deed is null and void." In the prohibition to innovate 
 or alter the order of succession, the word to and letters inn were written on an era- 
 sure ; this erasure was held not a vitiation, because the word innovate was not essen- 
 tial to the clause ; but in the clause declaring void the •' deeds of the said J. G., or of 
 iuiy of the said heirs or substitutes of tailzie " made in contravention of the entail, the 
 words or of any of wore on an erasure : and there the word ani/ was held by the majority 
 of the Ci)urt essential to the universality of the irritaney. and therefore to the entail. 
 Lord Benholnie held, that in dealing with eras^uros in entails, not only were the words
 
 534 VITIATIONS IN DEEDS § 877- 
 
 § 877. A bond granted under a condition which had been ob- 
 literated was found to be ineffectual, although there was no ground 
 for suspecting fraud, as the obliteration had probably been caused 
 by age or damp (t). In like manner, it was held fatal to a bond 
 that half a line near the term of payment had been obliterated (u) ; 
 and a disposition in which two lines in the clause setting forth 
 the onerous consideration were deleted, but still legible, was reduced 
 in an action at the instance of a creditor of the grantor (x). 
 
 § 878. Where the name of one of the instrumentary witnesses 
 to a deed was WTitten on erasure in the testing clause, and the word 
 "witness" added to his subscription was in another person's hand- 
 writing, the deed was held to be null (y). 
 
 § 879. In contrast with these cases it has been held not to 
 create nullity that certain words or letters are on erasure, where the 
 sense of the deed would not be affected by holding them pro non 
 scrijytis, or substituting for them any other words which could rea- 
 sonably be supposed to have occupied the space covered by the 
 vitiation. Thus, wliere the words jMges of were on erasure, in a 
 testing clause bearing that the deed was " written on this and the 
 twelve preceding j3rt(/es q/ paper," the deed was sustained (z). This 
 was also the case wdiere the testing clause of a deed written on 
 thirteen pages set forth that it was " on this and the twelve preced- 
 ing pages," and the letters ve were on erasure (a) ; and where the 
 testing clause of a deed bore to l)e written "on this and the six 
 preceding pages," but the letter x was written on erasure (b). In 
 like manner, it was held not to impair a charter of confirmation 
 vliat in the narrative of one of the sasines confirmed, the date of 
 which was described as " tertio die Junii annoque presenti" the last 
 of these words was written on erasure ; and the plea that the word 
 had originally been written pi'^^^^dict was overruUed, because there 
 was no doubt as to the identity of the sasine intended to be con- 
 firmed, the remainder of the description of which was accurate (c). 
 
 {t) E. Bute V. Halylmrton, 1712, M., 11,545. (m) Pitullo v. Forrester, 1671, 
 
 iM., 11,530; 12,281, S. C. (x) Brown v. Merries, 1701, M., 11,541. 
 
 [y) Gibson v. Walker, lUth June 1809, F. C. ; aflfd., 2 Dow, 270. 
 
 (2) Morrison v. NibLct, 1827, 7 S., 810. [a) Gaywood v. M-Eand, 1828, 
 
 fi S., 991. {b) E. Cassilis v. Kennedy, 1831, 9 S., G63. 
 
 (c) .\dam ,-. Drummond, 12th June 1810, F. C. 
 
 on thf; erasure to bo held not those ori^'iiially written thca-c, but it was to be supposed 
 that the words originally there were different, and such ?is would invalidate the clause : 
 Gollan V. Gollan, 1862, 24 D., 1410.
 
 § 882. VITIATIONS IN DEEDS. ,03o 
 
 § 880. Aitoratiuii in Lhu date ol' a deed, which is not an essen- 
 tial part, is not in general fatal (d), Bnt if it was made frandnlently 
 in order to defeat an objection of deathbed, or to give an undue 
 preference in a competition of creditors, it would seem that the 
 deed will not be effectual as of its proper date in the hands of the 
 person who vitiated it (e). 
 
 § 881. A deed executed without any vitiation may have l)een 
 altered fraudulently by one who either pleads the alteration as a 
 ground of nullity, or maintains the deed in its changed state. This, 
 like any other fraud, may be proved prouf de jure by the oj^posite 
 party who founds on the deed as it originally stood (/). But the 
 mere possibility of such an event will not save from nullity a deed 
 which is vitiated in suhstantiaUhn.s (g). 
 
 The rules as to holograph alterations on deeds have been noticed 
 already (h). 
 
 § 882. At common law vitiations in snhsfanfialihus of instru- 
 ments of sasine and resignation are fatal, although the instrument 
 should be recorded in its altered form. But this has been partly 
 remedied by statute (i) in so far as regards instruments of sasine 
 and resignation ad remanentiarii (not being jjropriVs manibus), which 
 contain words on erasure. The instruments in which sasine or re- 
 signation propriis manibus are set forth, being really dispositions 
 of heritable right, are nullified by vitiation in any substantial 
 part.^ 
 
 {d) Bayne v. Calvie, 1673, M.. 11,540— Arrot v. Gairden, 1730, M., 12,2^b— Supra. 
 2 714. (e) Merry v. Howie, 1801 ; affd., 17th March 1806, M., " Writ," Api.., 
 
 No. 3— See supra, § 715, where a douht is suggested as to wliether the decisions in sup- 
 port of this rule arc well founded. (/) See Cunuingliani-liead v. Town of 
 l.anark, 1628. M.. 12,274— Hunter v. Peter's Crs., 1670, M., 1687. 
 
 {g) See tliis well brought out in Boswell v. Boswell, supra, 14 D., 378. 
 
 {h) Supra, § 755. {%) 6 and 7 Will. IV, c. 33. 
 
 3 Recent statutes render instruments of sasine and instruments of resignation ad re- 
 manentiam unnecessary; and it is now competent to register, instead of the instruments, 
 the conveyance or the procuratory along with a warrant of registration, as provided in 
 the statutes,— or a notarial instrument in the statutory form ; 21 and 22 Vict., c. 76. 
 §§1.4; and 23 and 24 Vict., c. 143, g 3. The provisions of the act 6 and 7 Will. IV, 
 c. 33, that no challenge of an instrument of sasine or of resignation on the ground of 
 erasure shall receive effect, unless it is averred and proved that such erasure has bien 
 made for the purpose of fraud, or that the record is not conformable to the instruuuiit 
 as presented for registration, are extended to notarial instruments and instruments of 
 resignation ad remaimUiam in the forms authorised l.y the act 21 and 22 Vict., c. 76 ; 
 and to instruments of cognition and notarial inslrumeiils under ilie act 23 and 24 Viet., 
 c. 143; and to notarial in.-;truments under the Heritable Securities Act 8 and Vict.
 
 536 VITIATIOISIS IN DEEDS. § 883- 
 
 § 883. Where a deed contains distinct and independent mem- 
 bers or subjects, vitiation in one of them will not make it null as 
 to the others. Thus, one legacy in a will may subsist although an- 
 other falls (k) ;"^ and, as already observed, legacies may be validly 
 constituted by a will which is null in the nomination of an execu- 
 tor (?) ; and vitiations in one of the substitutions in a series of heirs 
 will not aifect heirs whose names occur before the vitiated por- 
 tion (in). Thus, also, where the names of some of the lands in an 
 heritable bond were on erasure, the security was sustained as to the 
 rest (ii). And an instrument of sasine, vitiated and falsified as to 
 one of the subjects contained in it, was held effectual as regarded 
 the others in favour of a disponee who had not been concerned in 
 the vitiation (o). But wherever the rights of the parties to a deed 
 depend on its being sustained as a whole, vitiation in one branch of 
 it will be fatal to the others also ; — as, for example, where a lease 
 with a cumulo rent, or a feu-contract with a cinnulo feu-duty, for 
 several portions of land is vitiated in one of the subjects. Even 
 where the rent or feu-duty is apportioned among the different sub- 
 jects contained in the deed, vitiation in regard to one of them will 
 be fatal to the whole deed unless it appear that the parties intended 
 the several members of it to stand independently. For example, 
 the tenant in a large farm, the rents for different portions of whicli 
 are sei)arately specified, may have considered the sum laid upon 
 one part to be too high, but to l)e compensated by better terms as 
 to the others ; and, if there was no such inequality, he must be pre- 
 sumed to have made his offer with the view of cultivating the whole 
 
 (k) Per Lord Chancellor in Grant v. Shepherd, 1844, 6 Bell's Ap. Ca., 153. 
 
 (/) Svpra, § 874. {m) Supra, ? 873. [n) Howden v. Ferrier, 1836, 
 
 13 S., 1097. With this case compare Innes v. E. Fife, 1827, 5 S., 559 ; affd., 2 W. S., 
 637 ; noticed sujjra, I 872. (o) Keir v. Pardowie, 1597, M., 17,062. 
 
 c. 31. These provisions do not apply to instruments of sasine, or of resignation jsrqprns 
 manibus, or where the conveyance or procuratory is itself registered. In case of error 
 or defect in any of the instruments, procuratories, or conveyances recorded under these 
 acts, it is competent to record them anew ; 23 and 24 Vict., c. 143, § 35. 
 
 * An erasure in a codicil does not necessarily vitiate the codicil if the clause on 
 tlie erasure be separable from the rest of the deed ; the Court are not entitled to pre- 
 sume that the words originally written on the erasure were words which would have in- 
 validated the codicil or any bequest in it. It has been thought, however, that an era- 
 sure in a deed of entail is in a different position, and that the party challenging the 
 entail is entitled to assume that the words originally in the erasure were such as would 
 destroy the deed as an entail; Peddie v. Doigs, 1857, 19 D., 820— Gollan v. Gollan, 
 1862, 14 D., 1410— See also Earl of P>uclian v. Scottish Widows' Fund Society, 1857. 
 19 D.. 556.
 
 § 88.0. VITIATIONS IN DEEDS. 537 
 
 farm, and finding employment for a certain stock of horses and farm 
 ini[)lements, as well as for his own time and capital. It may, there- 
 fore, be very fairly supposed that he would not have agreed to a 
 lease of a part of the farm ; — or, at least, that he would not have 
 contracted on the footing of an ahatement of rent corresjtonding 
 merely to tlic number of acres, to which some vitiation in the lease 
 may immediately' apply. Accordingly, the validity of such a lease 
 as a whole, being one of the main cousideratioiis on which the ten- 
 ant agreed to its terms, is an essential element in the contract, and 
 it cannot be treated as if the different portions of the farm had 
 been contained in separate leases. 
 
 § 884. The proper, and in general the only competent, way by 
 which alterations in substantial i)arts of deeds can be validated is 
 by being mentioned in the testing clause in such a manner as to 
 show that they were made before the deed was executed (p). In 
 a case alread}' noticed, a disposition mortis causa bore to be in fa- 
 vour of John Redder, the grantor's son, but the letters ohn were 
 w ritten on erasure throughout the body of the deed wherever the 
 name occurred, and in one place the name was followed by the word 
 'junior" which did not apply to John Kedder. The testing clause 
 stated that "these presents written," &c., "are subscribed by me in 
 favour of the said John Kedder, my son," &c. ; but it did not men- 
 tion that his name was written on erasure before the deed was 
 signed. The deed was held null both in the Court of Session and 
 House of Lords ; the Lord Chancellor observing that the testing 
 clause " did not go at all to prove that when the deed was executed 
 John was substituted for James." It was equally consistent with 
 the terms of that clause to suppose that the deed had been exe- 
 cuted as in favour of James Kedder ; and that, either from a change 
 of purpose in the grantor or in order to correct an error of the con- 
 veyancer, it had been altered in the interval between its executicm 
 and the completion of the testing clause (>•). 
 
 § 885. Alterations in the testing clause itself are more favour- 
 ably treated. As that part of a deed may be filled up any time be- 
 fore the document is produced in judgment, so before that step has 
 been taken the testing clause maybe corrected by erasure, superin- 
 (hictiou, or the like, and mentioning the alteration as having been 
 made in order to correct an error. Such an e.r y>o.s7 /ac/o addition 
 
 i/.| Sco supra. ? 724. ('t Kciil r. KpiLlrr. 1885, 13 S., 619: affd., 18-40. 
 
 1 Uob. Ai-. Ca., 183.
 
 538 VITIATIONS IN DEEDS. § 885- 
 
 to the deed is effectual, and is held (hy a legal fiction) to he au- 
 thenticated by the subscriptions of the party and witnesses (s). 
 
 § 886. In some very special cases deeds have been sustained, 
 not^^•ithstanding material alterations which were not mentioned in 
 the testing clause. Where one of the parties to a marriage-con- 
 tract, which was signed in duplicate, objected that the copy in the 
 other party's hands bore a marginal addition not duly authenticated, 
 the Court sustained the deed, because the copy of it produced by 
 the party objecting contained the same addition (t). And in a cele- 
 brated case, where three several deeds mutually referring to each 
 other were all executed in duplicate on the same day, the testing 
 clause in each deed referring to the simultaneous execution of its 
 double, and vice versa ; and where throughout the deeds a great 
 number of words were written on erasures, but no vitiation in suh- 
 stantialihus occurred in the same place in both duplicates of any 
 one deed ; the Court sustained all the deeds, on the ground that 
 each pair of duplicates might be read together, so as between them 
 to make up a valid deed ; and the House of Lords affirmed the 
 judgment {u). 
 
 § 887. Deeds have also been sustained where words m suh- 
 stantialihus vnritten on erasure in some places, were repeated with- 
 out vitiation in other parts of the deed {x). But there are conflict- 
 ing cases of not less authority {y) ; and it is difficult to see how 
 the mention of an essential word in one place will remove the ob- 
 jection that it is written on erasure in another place where it is re- 
 quired in order to make the deed effectual ; since, if a word of a 
 different meaning were substituted for it, the deed would be in- 
 complete in so far as the vitiated clause is concerned. In the cases 
 of Boswell and Fraser, already mentioned {z), there could be no 
 doubt that the alteration was completely in unison with the con- 
 text, as well as with the manifest purpose of the deed. It would, 
 therefore, seem that even where a word sul)stituted ex hypotliesi for 
 
 (s) See cases cited supra, § 727. (0 Boswal v. Boswal, 1708, M., 17,025 
 
 —See also Smith v. Duke of Gordon, 1701, M., 16,987— Cubbison v. Ciibbison, 1716, 
 M., 10.988. («) E. Strathmore v. E. Strathmore's Tr., 1837, 15 S., 449 ; 
 
 affd., 1 Rob. Ap. Ca., 189. {x) Wright v. M'Leod, 1672, M., 11,540— Lyon 
 
 V. E. Aboyne, 1709, M., 11,544— Gumming v. Kennedy, 1709, M., 11,542 (affd. on an- 
 other point, Rob. Ap. Ca., 19)— Gordon v. E. Fife, 1827, 5 S., 550 (questioned by Lord 
 Brougham in Hoggan v. Ranken, 1840, 1 Rob. Ap. Ca., 173)— Howden v. Ferrier, 1835, 
 13 S., 1097— See also Dyce v. Pater&on, 1846, 9 D., 310— Wood v. Ker, 1838, 1 D., 14. 
 
 (y) Hoggan »;. Ranken, si/pm— Reid v. Redder, supra, § 884— Cowan v. Watt, 1829, 
 7 S., 553— See Taylor v. Malcolm, 1829, ib., 547— Sharpe v. Stevenson, 1849, 12 D., 
 327— Cooper v. his Crs., 1833, 11 S., 896. {z) Supra, \ 876.
 
 § N'Jll VITIATIONS IN IJll.LS AND NOTKS. 539 
 
 tlu; word a|)puuriug in IIil- altijraliuii wduM l>e grossly inconsistent 
 with the rest of tlie deed, and \vi*idd render it nugatory, yet, il" it 
 couhl reasonal)ly l>e supposed that ,sueh a word oecupie<l the space, 
 the deed nnist Ite dealt with on that looting.^ 
 
 No weight can now be attached to some older decisions, where 
 the Court gave effect to presuniptif)ns and probal)ilities as to the 
 alterations having been made beibro execution («). 
 
 § 888. It is settled law that parole evidence is inadmissible to 
 prove that alterations which are not specified in the testing clause 
 were made before the deed w^as subscribed (6). This follows from 
 the rule (c) that if the authenticity of a deed is not a patent fact 
 attested in terms of the statutes, it cannot be proved by extrinsic 
 evidence. If alterations by marginal addition, interlineation, or the 
 like, not being mentioned in the testing clause, are alleged to be 
 holograph, that must be proved (d); as well as the dates of tlic 
 alterations if these are material to the cause (c). 
 
 § 889. The rules regarding vitiations in bills of exchange and 
 -promissory-notes are in some respects peculiar. On this account, 
 as well as from their importance, they require a detailed examina- 
 tion. 
 
 These documents, if altered in any material part after 1)eing is- 
 sued, and without consent of the parties, are null both at common 
 law and under the stamp acts (/). But alterations made before 
 issuing, and with consent of the parties, are not fatal to the bill or 
 note as a document of debt (r/) ; altliough in general they destroy 
 it as a warrant for summary diligence. 
 
 § 890. Erasure or deletion of the subscription of one acceptor or 
 obligant in a lull or note annuls the document as to the others ; 
 because each only undertook to be bound on the footing of having 
 
 (a) Oliphant v. P(>ebles, 1629, M., ll,.'33o— Lockhart v. Hamilton, 1760, M., 16.930 
 — Scriinzeour v. Betsou, 1705, M., 11,542. (i) Pittullo v. Forrester. 1671, 
 
 M., 11,536; 12,281, S. C— Walker v. Gihson, 16th .Tune 1809, F. C; affd., 2 Dow, 270 
 — Reid V. Redder, 1835, 13 S., 619; affd., 1 Rob. Ap., 183— Shepherd v. Grant, 1844, 
 6 D., 464 ; affd., 6 Bell's Ap. Ca., 153— Boswell v. Boswell, 1852, 14 D., 878. 
 
 (f) Supra, § 812, et seq. {d) See supra, § 755. Will this apply to a mar- 
 
 ginal addition or the like, bearing a statement that it is in the party's handwTitin<'? 
 See g 754.6 (g) gee supra, § 755. (/) 1 Bell's Com., 391— Cases 
 
 in following notes. (ff) Bell's Com., ib. — Cases infra. 
 
 5 It is thought that this principle, if admissible at all, can receive effect in re"-ard 
 to deeds of entail only ; supra, § 876, note 2 ; and § 883, note *. 
 
 6 See Anderson v. Gill, 1858, House of Lord;:. 3 Macqueeu. 180, — Supra, 7-')4. 
 note 3.
 
 540 VITIATIONS IN BILl.S AND NOTES. § 890- 
 
 proportional relief IVoiu Ids eo-ohligaiits (A). For the same reason, 
 deleting the name of one of several drawers frees the others from 
 their ohligatiou (/). Deletion of the name of the person who stood 
 drawer when the bill was completed and issued, and substituting a 
 new drawer in his place, annuls a bill under the stamp laws, as it 
 alters the contract' (A-). But where, after a bill had been completed 
 and put into the circle, an intending indorsee wrote his name by 
 mistake on the face of the document, and the notary deleted the 
 subscription and filled up the indorsation with the holder's name, 
 the Court sustained the bill even as a warrant for summary dili- 
 gence (/). Where a bill addressed to A. and J. Dougal and Com- 
 pany as acceptors, and bearing that signature, was challenged by 
 them on the ground that they had signed A. and J. Dougal, under 
 which firm alone they traded, and that the words " and Company" 
 had been unwarrantably added ex post facto, the Court sustained 
 the bill as a warrant for summary diligence ; being satisfied from 
 its appearance that the words objected to had been written unico 
 contextu with the rest of the subscription, and holding that as the 
 objectors had confessedly accepted the bill addressed to them as A. 
 and J. Dougal and Company, they must be considered as having 
 adopted that firm in regard to the bill {in). The addition of a se- 
 cond obligant in a promissory-note, and a second acceptor in a bill, 
 after the documents had been issued, was held a fatal objection un- 
 der the stamp laws, as it altered the obligation to which the stamp 
 applied (w). And altering the name of one indorsee frees all sub- 
 sequent indorsees, because it destroys their recourse ; but if it was 
 done in bona fide for the purpose of correcting a mistake, it does 
 not destroy the bill in the hands of the indorsee as a ground of ac- 
 tion, although summary diligence is incompetent on it (o). 
 
 § 891. It has been held not to destroy a bill as a warrant for 
 summary diligence, that the words "conjointly and severally" had 
 been added to the address to two co-acceptors ; since tlieir subscrip- 
 
 (A) M'Ewan v. Graham, 1833, 12 S., 110. Here the Court, satisfied by inspectiou 
 that a uame had been erased below that of one appearing as sole acceptor, assoilzied in 
 an action against him. (0 Callender v. Kilpatrick and Others, 10th Dec. 
 
 1812, F. C; Hume D., 70 S. G.—Siq^ra, § 801. (k) Fleming v. Scott, 1828, 
 
 2 S., 446 Young's Tr. v. Paisley Bank and Scott (same case), 1831, 9 S., 574 — Con- 
 tra, Lumsden v. Marr, 1806, Hume D., bb— Supra, § 801. {I) Russell v. 
 Mill, 1810, Hume D., 68— See also Grieve v. Miller, 1817, noted ib., 68. 
 
 (m) Dougals v. Robin, 1828, 6 S., 504. (w) Home v. Purves, 1886, 14 
 
 S.. 898— Thomson on Bills, ll—Contra, M'Ara v. Watson. 1823, .2 S., 360. 
 
 (o) M'Ara v. Watson, supra.
 
 § 81)3. Vri'lA'I'lONS IN JULL8 AND NOTES. 541 
 
 tioiis witliDiit the addition bound ciich ol tliciu in fiolu/uiu ( j>). 
 l)ii( wlicrc ii l)ill liail Iktu originally accepted ])y one i)arty, " as 
 cautioner," and had been altered by erasure into "jointly and seve- 
 rally," the Court assoilzied the party who had subscribed as cau- 
 tioner, the action having been raised by one who acquired the bill 
 five years alter it had become due (r). The addition to a bill of 
 erroneous addresses to the names of indorsees, was held not to de- 
 stroy recourse against them, or prevent the bill from being a war- 
 rant for summary diligence (s). 
 
 § 8i)2. An}^ alteration by way of increase on the sum in a bill 
 or note is fatal to the document as a warrant for summary diligence ; 
 and unless it was consented to before issuing, it also destroys the 
 bill or note as a ground of action {t). But an alteration to a small- 
 er sum seems not to be a ground of challenge by one profiting by 
 the change, Avhich could not have been made for the purpose of de- 
 frauding him (w). The omission of the word " pounds," wdiere it 
 is evidently implied, does not prevent summary diligence on a 
 bill (x)J 
 
 § 893. Where a bill altered from a smaller to a larger sum has 
 come into the hands of a bona Jide indorsee for value, the question, 
 
 ip) Gordon v. Sutherland, 1761, M., 14.677— But see Chitty on Bills, 183. 
 
 (r) Robertson v. Annan, 1825, 4 S., 40. (s) King v. Crichton, 1841, 4 D., 
 
 62; affd., 2 Bcdl's Ap. Ca., 81. (0 Thus in M^Jubhin v. Turnbull, 1850, 12 
 
 D., 1123, a bill for £54, 19, having teen in nineteen added in different ink and handwrit- 
 ing, was held not to instruct a claim to vote for the trustee in a sequestration. In Ker 
 V. M'Ewau, 1845, 7 D., 400 ; where the sum was on erasure, the holder was allowed to 
 prove that the alteration had been consented to before issuing, the question arising in a 
 claim to rank for a dividend in a sequestration. In Leith v. Elphinston, 1734, Elch., 
 '• Writ," No. 1 ; the alteration in the creditor's handwTiting from " merks " to " pounds" 
 annulled the bill. Query, Is alteration of the figures stating the sum a vitiation, wlien 
 the sum in words in the body of the biU is correct? Lord Mackenzie (Ordinary) lield 
 it was not in M'Ewan v. Graham, 1833, 12 S., 110. («) Laidlaw v. Park. 
 
 1774, M., 16,941. (z) Gordon v. Sloss, 1848, 10 D., 11,29— Phipps v. Tanner. 
 
 1833, 5 Ca. and Payne, 488. 
 
 7 Wliere there is a discrepancy between the figures on a bill or bank cheque and the 
 statement of its amount in words in the body of the bill or cheque, the words only are 
 to be regarded ; and so, where a bank cheque, when issued and indorsed, bore in words to 
 be for "One hundred and sixty pounds," but in figures bore to be for "£104," and the 
 words were afterwards altered to " One hundred and sixty-four pounds," the Court re- 
 fused all action on the draft by the indorsee against the indorser ; and the averment of 
 the indorsee, that the alteration had been made to correct a mistake, was lield irrelevant 
 in the absence of an averment that tlie alteration had been made with the indorscr's con- 
 sent. Had both averments been made and established, the action would have been 
 sustained; Edinburgh and Glasgow Bank v. Samson, 1858, 20 D.. 1246.
 
 542 VITIATIONS IX BILLS AND NOTES. § 893- 
 
 Avlio must bear the consequences of the vitiation, depends on 
 whetlier ordinar}- attention would have discovered or suspected that 
 the bill had been altered. If it would, the loss will fall on the in- 
 dorsee ; because he incurred a risk which one using ordinary busi- 
 ness accuracy would have avoided (i/). But if the bill has no sus- 
 picious appearance by crowding, difference in colour of inks, in 
 hand^^Titing, or the like, the acceptor will be liable for the full 
 amount (2). " This proceeds, not on the principle of mandate, but 
 on the obligation to indemnify loss occasioned by fault or negli- 
 gence ; the fault or negligence being a good answer to the plea of 
 interpolation " (a). In two of the cases where the vitiation was ap- 
 parent, charges on the bill were sustained to the extent of the ori- 
 ginal sums, because these w^ere judicially admitted to be due (6). 
 But it seems more correct to suspend the charge altogether, and 
 even to assoilzie the defender in an action laid exclusively on the 
 bill, without prejudice to an action for the debt, in which the bill 
 would be an adminicle of evidence (c).^ 
 
 § 894. Unauthorised alteration ex post facto in the date of a 
 bill is fatal ; because it changes the dates of payment and prescrip- 
 tion, and makes a new document, for which a new stamp is re- 
 quisite {d). And it is not necessary to prove a fraudulent purpose 
 in alterhig, as that will be presumed until disproved (e). These 
 rules hold whether the bill is payable on demand (/), or at a cer- 
 tain period after date (g). When the vitiation is manifest, the 
 
 (y) 1 Bell's Com., 390— Graham v. Gillespie, 1795, M., 1453 (next note)— M'Lean 
 V. Morrison, 1834, 12 S., 618— Watson v. Thomson, 1798, Hume D., 42. 
 
 (z) Bell's Com., si/pra^So held in Pagan v. Wylie, 1793, M., 1660, as to a bill ac- 
 cepted for eiffht, changed into eighty-four, pounds without crowding. In Grahame v. 
 Gillespie, supra, two bills for £50 and £58, 10s., respectively, had each been altered after 
 acceptance, by prefixing the words "four hundred and" to the sum in the body of the 
 bill, and the figure 4 to the sum in the margin. The one bill not being crowded or 
 suspicious looking, was sustained for the full sum. But as the other "had a very 
 crowded appearance," it was sustained only for the original sum, which was admitted 
 to be due. " The Court at the same time determined several other cases on the same 
 grounds." See also Young v. Grote, 1827, 4 Bing., 253. 
 
 (a) Bell's Com., supra. {h) Watson v. Thomson, s^^pra — Grahame v. Gilles- 
 
 pie, supra. (c) See M'Lean v. Morrison, 1834, 12 S., 013. 
 
 {d) As in Mitchell v. Stewart, 1819, Hume D., 78, where the alteration was to a 
 single day later. See also Taylor v. M'Whinnie, 1805, Hume D., 51 — Miller v. Royal 
 Bank, 1835, 13 S., 813— and cases in following notes. (e) Murchie v. Macfar- 
 
 lane, 1796, M., 1458 ; 16,946, S. C. (/) M'Kostie v. Halley, 1850, 12 D., 124 ; 
 
 816. {g) Murchie v. Macfarlane, supra — Taylor v. M'Whinnie, supra — Corrie v. 
 
 8 Edinburgh and Glasgow Bank v. Samson, 1858, 20 D., 1246, supra, § 892, note 7.
 
 § ^O;'). VITlATrONS I\ BILI,S AND NOTES. .^43 
 
 Court at once refuse action, or .suspend ililigenee, on the Idll (A). 
 When it is not jipparcnt, tliey sometimes remit to engravers, and 
 suspend on the investigation showing that it exists (i) ; or if the 
 averment is oflered to lie estal.lislied instantly, they may allow a 
 proof. If the l)ill ai)i)ears to be unaltered, and the allegations 
 against it arc vague, the Court will refuse the suspension, or only 
 suspend on caution (k). 
 
 § 805. But a bill altered in the date before being issued, and 
 by consent of the parties to it, is effectual as a ground of action, the 
 party founding on it having to prove the facts as to the alteration (l). 
 The document, however, not being probative, seems not to be a 
 warrant for summary diligence (m) ; yet, if the party suspending 
 the diligence consents, the proof as to the alteration having been 
 consented to before issuing may be allowed in the suspension (w). 
 In one case (the authority of which may be doubted) suspension of 
 diligence on a bill altered in the date was refused, although the 
 Court were satisfied from the circumstances disclosed that the al- 
 teration had been made before tlie bill was issued (o). 
 
 It seems to l»e incompetent to turn the charge on the altered 
 bill into a libel (^19). 
 
 Where one of two acceptors altered the date of a bill fi-om Can- 
 dlemas to Lammas (postponing it b}' several months), whereu})on 
 it was signed by him, by the drawer, and by the other acceptor ; in 
 an action against the latter for paj^ment of its contents, the Judge- 
 Admiral assoilzied " in respect of the vitiation appearing on the 
 face of the bill, independent of the other very suspicious circum- 
 stances of the case ;" and the Court of Session sustained his judg- 
 
 Barbour, 1825. 4 S.. 228— "Whitehead r. Henderson, 1836, 14 S., 544— Armstrong r. 
 Wilson, 1842, 4 D., 1347. (A) Murchie v. Macfarlane, supra [e) — Allan v. 
 
 Young, 1800, M., Appx., "Bills," No. 10. See also Hamilton v. Monteith, 1824, 3 S., 
 345 (new ed.). (0 See Hamilton v. Kinnear, 1825, 4 S., 102. 
 
 (k) Stewart v. Bird, 1822, 2 S. (new ed.), 10— See Dobie v. Stevenson, 1823, 2 S.. 
 358. (I) Fairweather r. Alison, 12th February 1817, F. C— Sutherland v. Mor- 
 
 rison, 1822, 1 S., 526; same parties, 2 S., 442— Dobie v. Stevenson, supra — Whitehead 
 V. Henderson, 1836, 14 S., 544— Armstrong r. W'ilson, 1842, 4 D.. 1347— See Miller i-. 
 Royal Bank, 1835, 13 S., 813— M'Millan v. Stewart, 1815, Hume D.. 924— Ca--^es in fol- 
 lowing notes. (?«) M'Kostie v. Hiilley, 1850, 12 D., 816— Corrie v. Barbour, 
 1825, 4 S., 228— M'Ara v. "Watson, 1823, 2 S. (new ed.), 318— M-Kay v. Robert.son, 
 1832, 10 S., 813. (w) Armstrong v. Wilson, supra — See also Sutlierland r. Mor- 
 rison', supra, and M'Ara v. W^atson, 1822, 1 S. (new ed.), 237, 2 S. (ib.), 318. 
 
 (o) Taylor v. M'Whinnie, 1805, Hume D., 51. (/') See M'Ara v. "Watson. 
 
 s?//)m— Forrest v. Thomson, 1834, 12 S., 726. 
 
 VOL. 1. 
 
 2 M
 
 544 VITIATIONS IN BILLS AND NOTES. § SOTi- 
 
 ment (/•). It is inconsistent with the decisions noticed above; and 
 in Professor Bell's opinion may admit of reconsideration (s). 
 
 § 896. Where the date of an indorsation had been torn off, and 
 where it appeared from a registered protest to have been such as to 
 raise suspicion regarding the indorsee's onerosity and bonafdes, the 
 Court suspended summar}^ diligence which he had raised upon the 
 bill (0- 
 
 § 897. Alteration of the term of payment of a bill is fatal (u). 
 But if it was consented to by the parties when the bill was made, 
 the document will be a good ground for action (x). 
 
 § 898. Adding a place of payment to a general acceptance (2/), 
 and substituting a different place of payment (z), are fatal to the 
 bill, unless the}^ were consented to before it was issued (o). And 
 a claim to vote for the trustee in a sequestration, where the debt 
 was described as due by bill, was rejected, because the words " in 
 London " in the lithogTaphed part of the bill (which was regular in 
 other respects) were deleted. The Lord Justice-Clerk Hope, how- 
 ever, " could not say that the bill would not be a good document 
 for claiming to rank upon in the division of the bankrupt's as- 
 sets" (6). 
 
 § 899. In a bill bearing to be " for value in trust account," the 
 addition of the words " for Mr Pentland" was held not to be fatal, 
 as they completed the writing in accordance with the fact (c). And 
 where, in a bill bearing to be " for value in account for business," 
 the last two words were said to have been added without the accep- 
 tor's consent, the Court sustained a charge on the bill, because it 
 
 {r) Bryce v. Dickson, 16th November 1810, F. C. (s) 1 Bell's Com., 392. 
 
 {t) Kennedy v. Cameron, 1823, 2 S., 192. (?/) Hamilton v. Kinnear, 1825, 
 
 4 S., 102— See Rodgers & Co. v. Murdoch, Robertson & Co., 2Gth December 1801 
 (House of Lords), 2 De. and And., 341—1 Bell's Com., 391— Glen on Bills, 99. 
 
 (x) Henderson v. Hay, 1802, M., 17,059. In Douglas v. Young, 1799, Hume D., 51, 
 note, such a bill was sustained as a warrant for diligence. But this decision would pro- 
 bably not be followed. (t/) Cowic v. Halsall, 1821, 4 Barn, and Aid., 197 
 
 1 Bell's Cora., 392— Chitty on Bills, 182. {z) Tidmarsh v. Grover, 1813, 
 
 1 Maule and Sel., 734— Bell, ib. (a) 1 Bell's Com., 392. In Beattie v. Hali- 
 
 burton, 1823, 2 S. (new ed.), 199, action by the indorsee was sustained against the 
 drawer of a bill payable at the " Leith Company's Bank, Dalkoitli," the word Leiih be- 
 ing on erasure. There was only another bank in the place, and the bill was not said 
 to have been originally payable there. But the decision went on the narrowest ma- 
 jority, (b) M'Cubbin v. Turnbull, 1850, 12 D., 1123. (c) Commercial 
 Bank v. Baton, 1837, 15 S., 1202. This was in an action by the discounting bank 
 against an indorser.
 
 § 1)01. CANCKI.LKD DEEDS. 045 
 
 was f;-cnuine ex facie, and the evidonco offcrc-d to jtruvo tlic oLjec- 
 tidii M';is iiiadmissililc ; Imt tlicy deli\civd no opinion on tlie rcde- 
 vancy of the objection {<l }.^ 
 
 § 900. In an English case, a promissory-note, wliich, in order 
 to correct a mistake and make it in accordance with tlie agreement 
 of tlie parties, had, before ])eiiig signed or issued, been altered into 
 a bill, was sustained as a bill (c). The case is quoted by Professor 
 Bell (/) in su})port of the same rule in this country. 
 
 CHAPTER VII. — OF DEEDS MUTILATED FOR THE PURPOSE OF . 
 CANCELLATION. 
 
 § 1)01. Til treating of vitialioiis in substantialibfis, it was ob- 
 served («) that one of the grounds on which they are fatal is, that 
 they may have been made by the granter purposely, with the view 
 of cancelling or revoking his deed. That purpose is more strongly 
 marked by mutilating a document as a whole ; — for example, by 
 tearing it in pieces, or by cutting away the sidiscription or some 
 important part of it. 
 
 This mode of cancellation requires, 1st, a final intention to re- 
 voke ; and, 2d, an overt act calculated to carry out such an inten- 
 tion — the one element distinguishing intentional from accidental 
 
 {d) M'Kenzie v. Brit. Linen Co., 29th November 1825, F. C, 4 S., 231, S. C. 
 (e) Webber v. Haddocks, 1811, 3 Camp., 1. (/) 1 Bell's Com., 392. 
 
 (a) Supra, § 871. 
 
 ' The act 19 and 20 Vict., c. 25, provides that where across a draft on a banker, 
 payable to bearer, or to order, on demand, there is written or printed the name of any 
 banker, or the words " and company," the bill shall be payable only to or through some 
 l)anker; and the act 21 and 22 Vict., c. 79. provides (g 1) that where such a draft is is- 
 sued, so crossed, the crossing shall be deemed a material ]mrt of the draft, and shall not 
 be altered except to the efiect sjjccially allowed by the act ; and if the draft be crossed 
 with a banker's name, the banker on whom the draft is drawn shall not pay the draft 
 to any other than that banker ; (g 2) that the holder of such a chetjue uncrossed may 
 cross it with the name of a banker, or with the words " and company," or if it be issued 
 crossed with the words "and company," he may add the name of a banker; and these 
 crossings have the same efl'ect as if they were on the bill when it was issued; (§ 3) 
 persons altering such drafts with intent to defraud are guilty of felony ; (§ 4) bankers 
 are not liable under the act if the crossing be not distinct. 
 
 2 M 2
 
 ."')4(; CANrKLLED DEEDS. § UOl- 
 
 iiiiUil.itinii : tlie other marking actual and completed, as distin- 
 g'uislied from intended or inchoate revocation. 
 
 § 902. Both of these characteristics occurred in the following- 
 cases : — Where a Scotchman, wlio liad long resided in India, exe- 
 cuted a will, concluding " in testimony of this being my last will 
 and testament I hereto set my hand and seal;" and the document 
 was found in his repositories with the jjart to which the seal had 
 c\-idently been affixed cut (not torn) off ; the House of Lords held 
 the deed to be cancelled, because the testator had (besides the usual 
 solemnities) prescribed a seal as necessary to the authentication of 
 his will ; and his cancellation of that mark of concluded purpose 
 indicated his intention that the document should not receive effect 
 as his deed (6). So, Avhere one who was prejudiced by a will found 
 in the deceased's repositories, torn in two i)ieces, raised an action to 
 have it declared that the will was null and void, the Court directed 
 the party founding on it to bring an action of proving its tenor, in 
 order to account for tlie mutilation ; and the case was soon afterwards 
 given up by him (e). In anotlier case the Court suspended sum- 
 mary diligence on a bill, which had been found in the repositories 
 of the deceased drawer torn in three pieces, and had been pasted 
 together by his representatives (d). The real evidence afforded by 
 the mutilation in these cases raised the inference that tlie act had 
 lieen deliljerate and of purpose ; and it threw on the party founding 
 on the deed the burden of proving some other intention than that 
 of revocation. The same result followed in a case where a disposi- 
 tion by a wife settling her heritable estates on certain persons was 
 found in her hands cancelled, and where she alleged that it had 
 been cancelled accidentally, but this was not proved ; while her not 
 having judicially ratified the deed strengthened the probabilities 
 against its subsistence (e)} 
 
 (b) Nasinyth v. Hare, 1821, 1 Sh. Ap. Ca., 65, reversing; noted supra, 2? 744, 773. 
 The deed also bore markings in pencil and red ink, which showed an altered intention. 
 A similar case occurred in America ; Avery v. Pixley, 1808, 4 Massachussets K., 462. 
 
 (c) Dow V. Dow, 1848, 10 D., 1465. See also Forbes v. Sinclair, 1613, M., 11,535. 
 {d) Thomson v. Bell, 1850, 12 D., 1184. (e) Houston v. Shaw, 1711, Bob. 
 
 Ap., 552; 501. The lady sought to set up the deed, because it was the onerous consi- 
 deration on which a bond of annuity had been granted by her husband in her favour. 
 
 1 So in an action of proving the tenor of a mutual disposition and settlement of a 
 husband and wife, brought by a party who had an eventual interest under the deed, it 
 was proved tliat the deed had been duly executed, but that when the husband prede- 
 ceased, it was found that the name of the widow and of the iustrumentary witnesses
 
 § 003. CANCELLED DEEDS. 547 
 
 § 903. In contrast ^vith tlicso cases, the f«jllo\ving illustrate the 
 ah.sence of one or other of the essential elements of cancellation. 
 Where a bill payable to the di-awer was found in his pocket-book 
 after his dcatli, torn in two pieces, but apparently in consequence 
 of having been worn at the fold, the Court sustained it as a ground 
 of action by his representatives against the acceptor (/'). In a 
 case of jn'oving the tenor of a bond granted l)y a jirincii.al and 
 cautioners, the subscription of the former had been almost entirely 
 torn away; and the defender, wbile he admitted that the deed had 
 been duly subscribed, contended tliat it had afterwards been can- 
 celled ; but as the l)ond had been recorded in the books of the 
 county register, the Court held the tenor of it as a valid deed to be 
 proved, because it was to l)e presumed that the mutilation arose 
 from careless kee[)ing or accident after registration, and not tliat 
 the keeper of the register recorded as valid a deed mutilated in the 
 signature of the principal obligaiit (jj). Again, iji an English case, 
 where a testator, angry with one of his devisees, began to tear his 
 will in order to destroy it, and after having torn it into four pieces 
 was prevented b}' a bystander from mutilating it farther, whereupon 
 he put the pieces together, and said " it is good it is no worse, and uo 
 material part has been injured ;" the Court, holding that the act of 
 cancellation had not been completed when tlie testator changed his 
 purpose, sustained the torn document as a will {li). In like man- 
 ner, a deed will be held effectual where the mutilation of it occurred 
 during the party's insanity («') ; ^ and where it was done by a depo- 
 
 (/) Irvine v. Lung, 18-50, 2 D., 804. {g) M'Dowal v. M'Ghic, 1713, 
 
 5 B. Sup., 98. (/() Doe d. Perkes v. Perkes, 1820, 2 B. and Aid., 489, 
 
 {i) Lany v. Bruce, 1838, 1 D., 59. The proof of insanity failed in this case. 
 
 (tliere being only two) had been deleted ; — and tlie widow deponed that she, without 
 her husband's knowledge, had deleted her own name and that of the witnesses in a fit of 
 passion against a person having an interest under the deed, that she afterwards regretted 
 what she had done, and wrote again the names of herself and the witnesses in order 
 to restore the deed ; the Court held that the presumption was, that the deed had been 
 destroyed by the husband or with his sanction ; and that tiie unsiipported testimony of 
 the widow to the contrary was not sufficient to overcome that presumption ; Winclie&ter 
 V. Smith, 1863, 1 Macph., 685. In a recent English case, it was held that when a will is 
 found mutilated on the deatli of the testator, the presumption is, that it has been muti- 
 lated by the testator for the purpose of cancellation after its execution, and if there is a 
 C(Klicil, after the execution of the codicil ; but the manner of the mutilation may show 
 that only a partial cancellatidu was intended ; Christma,s v. Whinyates, 1862, 32 L. J. 
 Prob., 73. And the presumption may be displaced by evidence ; Patten v. I'oulton, 
 1858, Swab, and Trist. Prob., vol. i, p. 65. 
 
 2 In an English case, where, after a will liad been duly executed, the granter be- 
 came insane, and at his death the will was luund to bi torn: tlie party impeaching
 
 648 CANCELLED DEEDS. § 903- 
 
 sitary acting lUKler a mistake as to tlie granter's intention (A'), or 
 ^^'ithout sufficient authority to cancel (I). 
 
 § 904. It is held in England that when a deed is executed in 
 duplicate, it may be cancelled by mutilation of the cojjy in the 
 hands of the party, provided his intention to revoke be clear (m). 
 The intention may be elucidated by parole evidence (n). 
 
 § 905. Farther, a deed will be held as constructively cancelled, 
 where the party intended to cancel it, and used means appropriate 
 to that end, but where witliout his kno\Yledge or against his will 
 his purpose was frustrated by some other person. This is well il- 
 lustrated l\y an English case, where a testator rumjded up his will 
 and threw it into the fire, after tearing a part of it almost off ; and 
 where a bystander, without his knowledge, prevented it from being 
 consumed. The revocation was held to be complete (o). In an- 
 other case, a wife had executed a mortis causa deed in favour of 
 her Imsband, and delivered it to him. Shortly before her death she 
 required him to return it ; and he laid it upon her pillow. She then 
 sent for her brother to consult him as to altering or cancelling the 
 deed. On his arrival it was amissing ; and she immediately charged 
 her husband with having abstracted it. He refused to give it into 
 her brother's hands ; whereupon she became violently excited, and 
 fainted, and shortly afterwards died. The Court held the deed to 
 be annulled ; because the granter's intention to reconsider it, with 
 a view to revocation or alteration, had been defeated by the party 
 who afterwards founded on it as sul)sisting (7:*). The absence of 
 proof of a concluded purpose to revoke was thus supplied by that 
 party's wrongful act, on the maxim omnia presumuntur contra spo- 
 liatorem ; and the case became like one in which such a purpose 
 had been frustrated by a cause bej^jud the granter's control. In 
 another case, a bond of provision was held to have been revoked, 
 
 [k) Cunningham v. Mowat's Tr., 1851, 13 D., 1376. See also "Walker v. Ronald, 
 1670, 2 B. Sup., 146; 476. {I) See Maxwell v. Maxwell, 1675, M., 12,322— 
 
 Forbes v. Culloden, 1712, M., 13,236— Carse v. Kennedy, 1714, M., 13,247— Fisher v. 
 Smith, 1771, M., 9366— Logan v. Logans, 1823, 2 S., 253— Falconer v. Stephen, 1848, 
 H D., 220; 1338. These cases are noticed fully in tlio chapter on the delivery of 
 deeds. (m) Burtenshaw v. Gilbert, 1774, 1 Cowprr, 49 — Onions v. Tyrer, 1716, 
 
 P. Will., 346— Pemberton v. Pemberton, 1817, 13 Vos., 310— Compared with Mason v. 
 Limbrey, mentioned per Mansfield in 4 Burr., 2515. {n) Per Mansfield in 
 
 Burtenshaw v. Gilbert, supra. (0) Bibb v. Thomas, 1749, 2 W. Blackst., 1043. 
 
 (p) Buchanan v. Patcrson, 1704, M., 15,932. 
 
 Ihc will was required to prove that it had been tdiii wliilc llic granfer was sane; Harris 
 r. Hrrn.ll, 1S5R. Swal.. and 'j'rist. Vvn],.. 153.
 
 § DOG. CANCELLED DEEDS. b¥J 
 
 wlioro the grantcr had on deathbed desired his wife to cancel or 
 1)11111 it, but slie had neglected to do so (r). And such directions, 
 if clear, are relevant to infer cancellation, although, as seen in a 
 subsequent chapter, it is usually a difficult matter to prove them («). 
 Of course a mere inchoate intention to revoke, when frustrated by 
 accident, or by some cause not attributable to the wrongful inter- 
 ference of the party favoured by the deed, will not infer cancella- 
 tion (/). 
 
 § 90G. In general, cancelling a deed produces the same effect 
 as if the deed had never existed. But the Court have looked at a 
 cancelled codicil in interpreting terms used in the trust-deed to 
 Avhicli it referred (u). And where a person had in liege poustie exe- 
 cuted a deed, laying certain burdens on her heir-at-law ; which deed 
 was found cancelled by tlie subscription being torn from two of the 
 pages ; in a reduction by the licir of a subsequent deed in similar 
 terms, but extending the period for paying the sums provided in 
 the first deed, the Court held that the existence of the first deed, 
 although cancelled, excluded the heir's reduction. The ratio deci- 
 dendi was, that as the first deed had been cancelled on the footing 
 of the second, which was more favourable to the heir, being efiec- 
 tual, he had not suffered lesion l)y the granting of the second 
 deed (x). The judgment, however, was pronounced on the opinions 
 of a bare majority of four to three judges ; and as it altered the in- 
 terlocutor of the Lord Ordinary, it cannot be regarded as authorita- 
 tive. In a subsequent case the question was debated, but not de- 
 termined, whether a testament, which revoked all former ones, 
 having been burnt by the testator, could be revived to the effect of 
 operating a revocation of a previous testament {y). The Court 
 considered that, in the absence of any farther indication of the de- 
 
 (r) Cliisliolni v. I'hisholiu, 1078. M.. 12.;V2i). («) See the sections ou deeds 
 
 delivered by the graiiter to a tliiid jiersoii as custodier, ^ 9G0, et seq. 
 
 {t) Walker v. Steele, 1825, 4 S., 323. Here a testator, two or three days before her 
 death, desired her agent to return her will in order that it might be cancelled; but lie 
 delayed to do so without any intention to defeat her purpose, and she died in tlio inter- 
 val. The Court regarded this as merely an intention to revoke, which, for all that ap- 
 peared, might have been afterwards abandoned. (u) Adv.-Gen. v. Smith (in 
 Exchequer), 1852, 14 D., 585. See contra, Hughes v. Turner, 1835, 3 Jly. and Kee., 
 696. (x) Mure v. Mure. 1st June 1813, F. C. The tirst deed had been can- 
 celled by the granter's agent, acting (as he deponed) by her directions. This decision 
 is supi>orted by Onions r. Tyrer, 1716, 1 P. Will., 345, where the cancellation of one 
 will in the supposition that another in similar terms was validly executed, which it was 
 not. was held not to let in tlii' heir-at-law. See also per L. Mansfield in Burtenshaw r. 
 liilberl. 1774, 1 Cowp., 52. (//) llowdeii v. Howden. 8tli .July 1815, K. (.'.
 
 550 IMPROBATIOX OF DEEDS. § 906- 
 
 ceased's intentions, the deed^which had been destroyed must be re- 
 garded as if it had never been. This is the rule in England (z).^ 
 
 The subject of this chapter is resumed in noticing actions of 
 pro\^ng the tenor of mutilated deeds, and the delivery of deeds to 
 a depositary with directions from the grantor as to disposing of 
 them. 
 
 CHAPTER VIII. — OF THE IMPROBATION OF DEEDS WHICH ARE 
 PROBATIVE EA' FACIE. 
 
 § 907. The solemnities for the authentication of deeds are de- 
 signed for securing genuine subscription, by throwing obstacles in 
 the way of forgery, and furnishing means for detecting it. But as 
 a deed apparently complete in the subscription of the party and 
 "fitnesses, and bearing a formal testing clause, may be fabricated, 
 or may w^ant the essentials of a legal attestation, the question re- 
 mains, By what means may such frauds and irregularities be dis- 
 covered ? The rule on the point is, that while a deed formal ex facie 
 is probative in a high degree, it will be reduced upon proof, direct 
 or indirect, that the subscriptions of the party or witnesses are 
 forged, or that the witnesses did not know the grantor, or did not 
 see him subscribe, or hear him acknowledge his subscription. 
 
 § 908. In all such cases the most direct evidence is that of the 
 attesting witnesses. They are therefore always admissible (a) ; but 
 when the objection is that they attested without knowing the party 
 or having the subscription written or acknowledged in their presence, 
 they may decline answering ; because the case involves a criminal 
 charge against them as accessories to forgery (6). 
 
 (z) Goodriglit v. Glazier, 1770, 4 Burr, 2512 — Harwood v. Goodright, 1774, 1 Cowp., 
 92. (a) Ersk., 4, 4, 70 ; Bell on Testing Deeds, 235 ; cases in following notes. 
 
 In Frank v. Frank, 1793, M., 16,822; affd., 15 Fac. Col. (folio), 753, it is said to have 
 " been the uniform practice to examine instrumentary witnesses, and the objection goes 
 only to their credibility." (b) Frank v. Frank, supra — Cleland v. Clelaud, 1837, 
 
 1 D., 254. See the chapter on qtiestions which witnesses may decline to answer, 
 'i 2016, et seq. 
 
 3 The English cases quoted were decided prior to the English act 7 Will. IV, and 
 1 Vict., c. 26, the 22d section of which provides that no will or codicil which has been 
 revoked, shall be revived, except by re-execution of it, or by a codicil. In a recent case, 
 where a will, which revoked all previous wills, was, when last seen, in the testator's 
 possession, but could not be found at his death ; the Court presumed that he had de- 
 stroyed lianimo cancellandi, and held thai lie liad died intestate; Brown v. Brown, 1858, 
 8 Ellis and Blackb., 876.
 
 §1)11. IM PROBATION OF DEEDS. 00 1 
 
 § 900. The Avoiylit due to tlieir testimony varies with the 
 grounds of reduction and the circumstances of each case. 
 
 If they deny tlieir supposed signatures, the jury must determine 
 the question of forger}' of these, or mistake in identity of the wit- 
 nesses, upon the whole evidence in the case ; which does not neces- 
 sarily involve any imi>utation on the witnesses' credibility (c). 
 
 § 910. AVhere they depone that the subscriptions are theirs, 
 but do not recollect (without expressly denying) that they saw the 
 grantor sign, or heard him acknowledge his subscription, the deed 
 w'ill be sustained ; because the crime of falsely attesting is not to l)e 
 presumed, and because the attestati(jns of the witnesses are much 
 more trustworthy evidence tlnui tlieir subsequent nou-recollection, 
 especially if they were in the practice of frequently attesting deeds, 
 and if the question occurs several years after the date of the deed (d). 
 The presiding judge will therefore direct the jury in jioint of law 
 that it is insufficient to cut down the deed that one or both of the 
 instrumentary witnesses depone " ?iOw memini" (e). 
 
 § 911. There is much more diiiiculty where the witnesses ad- 
 mit their signatures, but state distinctly that they did not see the 
 grauter sign, or hear him acknowledge his subscription. In such 
 cases either the attestations were culpably false, or the witnesses 
 when examined misstate the fact intentionally, or from want of re- 
 
 (c) See Commissary of Glasgow v. Nimmo, 1673, M., 12,661— Henderson v. Mon- 
 teith, 1678, M., 11,552; 12,669; 3 B. Sup., 242, S. C. In Tennant v. Ttnnant, 1675, 
 M., 12,667, where a person supposed to be one of the witnesses denied the subscription, 
 there was another person of the same name ; and the Court refused to reduce the deed, 
 as that person had not been examined. See a somewhat similar point in Stewart v. 
 Kirkhill, 1672, M., 12,654. See also Settons v. Settons, 1816, 1 Mur., 9, where the wit- 
 ness did not sign, but touched the pen of another person signing for her, in consequence 
 of which the deed was reduced. 
 
 (d) See Bell on Testing Deeds, 272— Sim v. Donaldson, 1708, M., 16,713; 16,891 
 —Young V. Glen, 1770, M., 16,905; Hailes, 364, S. C— Irving v. Maxwell, 1705, 4 B. 
 Sup., 627 -Frank i'. Frank, 1793. JI., 16,822. supra— Per Lord Gilford in Smith v. Bank 
 of Scotland, 1824, 2 Sh. Apj)., 287, allirming, 25lh January 1821, F. C. — Si-e also (be- 
 fore the act 1081) Stewart v. Kirkhill, 1672, M., 12,654. In Buchanan v. Buchanan, 
 1810, Buch. Kep., 88, a testamentary writing bearing to be holograph and attested by 
 two witnesses, but without statutory solemnities, was challenged as forged. One of the 
 witnesses had died, the other (a writer's clerk in the habit of witnessing deeds) believed 
 the signature to be his, but could give no account of the attestation, of which he had 
 not any recollection. The Lord Justice-Clerk (Cluirlos Hope), in delivering the judg- 
 ment of the Court (p. 105), said that this was little more than the testimony of one man 
 to the handwriting of anotlier. The other evidence against tlie authenticity was very 
 strong ; and the document was reduced. 
 
 {e) Per Lord Cockburn in Anderson v. Bank of Scotland, 183(5, 9 S. Jur., 53 — Don- 
 aldson V. Stewart, 184 , 4 D., 1215, per Li.nl Jusii,,-( 'l.rk Hopp.
 
 552 IMPROBATION OF DEEDS. § 911- 
 
 coUectiou. Every such witness is open to grave suspicion ; liis 
 testimony sliould be sifted and weighed with the greatest care, and 
 should be disregarded unless v\dth the other evidence it produces a 
 clear conviction that the deed is falsely attested (/). It is, there- 
 
 (/) In Smith v. Bank of Scotland, 1824, 2 Sh. App. Ca., 287, affirming, 25tli June 
 1821, F. C, Lord Giiford observed — The instrumentary witnesses, "if they are compe- 
 tent witnesses, are to have their evidence looked at with the greatest suspicion ; and 
 your Lordships ought to be fully satisfied not only by their evidence, but by corrobora- 
 tive proof. It ought to be most overwhelming evidence before your Lordships attend to 
 such testimony." One of the witnesses had died ; the other admitted his subscription, 
 but said he had not seen the grantor sign, or heard him acknowledge his signature. 
 His Lordship therefore thought the Court of Session were justified in saying thoy would 
 " rather give credit to the witness' subscription at the time, than to his testimony at 
 the expiration of so many (fifteen or sixteen) years, and after the death of the other 
 witness, who might have contradicted him." In Curruthers v. Graham, 1790, Bell's 
 Octavo Ca., 265, where one of the attesting witnesses swore that the deed signed was 
 difl'erent from that which had been read over to the granter. Lord Eskgrove said, " I 
 cannot give credit to the allegation on the credit of one admitting he was art and part 
 in the deceit." In Anderson v. Bank of Scotland, 1836, 9 Sc. Jur., 63, Lord Cockburn 
 charged the jury — " If the instrumentary witness denies having seen the granter sub- 
 scribe, he convicts himself of a crime of a heinous nature ; and he is therefore placed in 
 a situation in which, if he is entitled to an iota of credit, certainly no one witness could 
 ever possibly be entitled to less. In so far, therefore, as his testimony goes, no Court in 
 the universe would attach any weight to it. In order, therefore, to make him credible, 
 he must be corroborated ; and the question is, has he been corroborated ? " After notic- 
 ing that the corroborating evidence was exceedingly weak, his Lordship added, " I de- 
 duct tlie evidence of Ferries, the instrumentary witness, us almost wholly worthless." 
 It is thought that this learned judge took too strong a view against the witness ; and 
 that the following charges of the Lord Chief-Commissionca- (Adam) are more correct. 
 In Harkness v. Harkness, 1821, 2 Mur., 561, that learned judge charged the jury that 
 the evidence of witnesses against their attestations " must be narrowly examined, and 
 weighed in the nicest scales." In M'Dougal v. Wighton, 1880, 5 Mur., 115, his Lord- 
 ship observed, more copiously, " in Lord Fife's case. Lord Eldon says their evidence 
 ought to be sifted and attended to with care and suspicion. Lord Mansfield says, he 
 would receive such a witness, but tell the jury not to believe him ; and Lord Kenyon 
 adopted the same view. It appears to me that Lord Eldon's is the soundest view. We 
 admit the witness, because the objection goes to his credit, but it is for the jury to weigh 
 it in scrupulous scales." In his charge in Fife v. Fife's Trustees, 1825, 3 Mur., 605, 
 also, the Lord Chief-Commissioner expressed, but not at such length, his preference for 
 Lord Eldon's opinion to those of Lords Mansfield and Kenyon. So, in Aitchison v. 
 Patrick, 1836, 15 S., 360, in a challenge of an execution. Lord Justice-Clerk Boyle 
 charged the jury that " the messenger's evidence in contradiction of his own writ must 
 be scrupulously considered." In Cleland v. Cleland, 1838, 1 D., 254, in a motion by 
 the challenger of the deed for a new trial, on the ground that the jury found for the 
 deed, although both instrumentary witnesses contradicted their attestations. Lord Core- 
 house said " I must deal witli the statement of each of these witnesses as one emitted 
 by a man not omni exceptione major ; but, on the contrary, labouring under very grave 
 suspicion." His Lordship quoted from Mr Tait's work (p. 138) the following passage, 
 wliichhe coucfived to be accurate and well founded, — " Tlio evidence of witnesses in
 
 § 913. l.Ml'IiOIJATloN W DEEDS. 553 
 
 fore, the duty ul" the presiding; judge to direct the jury that the 
 evidence is of this qiiestionuhle chiiructer (f/).^ 
 
 § 912. Where the iiistrumeiitary \\itiiesses merely depone that 
 the granter's hand was led, they do not necessarily contradict their 
 attestations, hecaiise they may have believed such a 8n])Scription to 
 he regular. In a case of tliis kind (//) Lord ]\readowliaidv directed 
 the jury that such a witness came before them " under jieculiar cir- 
 cumstances," and that it would Ijc for them to consider how far the 
 whole circumstances touching his position ought to l)e held as af- 
 fecting his credibility. 
 
 § 91.3. Before civil causes came to be tried by jur}', the Court 
 repeatedly cut down deeds, where both of the instrumentary wit- 
 nesses contradicted their attestations, and their evidence was corro- 
 borated (/). But where one witness deponed negative, and the 
 other " did not remember the parties signing or acknowledging 
 their subscriptions," and "thought he could say decidedly" that 
 they did not do so in his presence, the Court refused to reduce the 
 
 such circumstances must always be received with caution and suspicion, more especially 
 if their depositions on oath shall directly contradict the assertion of the testing clause 
 under their hand ; but the point at issue in each case resolves itself ultimately into a 
 iiuestiou of the credibility of testimony, for the consideration of a jury or a judge to 
 whom it may be submitted." At tlie same time, there is a good deal of truth in Lord 
 Gillies' remarks in tliis case of Cleland, that witnesses " do not know that they commit 
 a great offence by attesting a deed, if they neither see the granter sign nor hear him 
 acknowledge his subscription." " It is notorious that the witnesses generally are igno- 
 rant of the law, and sign as they are bid, without either inquiry or explanation." Ac- 
 cordingly, his Lordship did not think their evidence against their attestations to be 
 " liable to so much suspicion as many of our judges have affixed to it." • 
 
 (ff) Cases in preceding note. (h) M'Dowall v. Wighton, 1838, Macf. 
 
 Kep., 142. (i) See, for example, tlie following cases, Forbes v. Reid, 1698, 4 
 
 B. Sup., 404— Allan v. M'Kean, 1803, Hume D., 914— Young v. Ritchie, 1701, M., 
 17,047— Milk-r v. Botliwell, 1071, M., 12.319— Welsh v. Welsh, 1794, Bi-ll's Octavo Ca., 
 44— Allan v. Blair, 1G84, M., 13,942; 2 B. Sup., 58, S. C. 
 
 1 In a recent case the Lord Justice-Clerk (Inglis) seemed to entertain the opinion — 
 quoted in note (/) — expressed by Lord Gillies on this point ; Morrison v. Maclean's 
 Trustees, 1802, 24 D., 629. Lord Cowan adopted the views of Lord Corehouse in Cleland 
 I'. Cleland ; Morrison v. Maclean's Trustees, 1803, 1 Macph., 304. In this ca.se testamen 
 tary deeds were challenged on the ground that the instrumentary witnesses did not see 
 the testator subscribe, or hear him acknowledge his signature. The jury sustained the 
 deeds ; and the Coiirt, on a motion for a new trial, held that when a jury, di.sbelieving 
 the uncorroborated testimony of instrumentary witnesses who deponed that tliey did 
 not see the granter sign or hear him acknowledge his signature, sustain the deed, the 
 Court will not grant a new trial, '<n tiic ground (hat the jury should have believed these 
 witnesses.
 
 554 1MPE013AT10N OF DEEDS. § 913- 
 
 deed, Avliieli was not alleged to be forged (/.•). The deed was almost 
 always sustained where one of the witnesses deponed against Lis 
 attestation, and the other was dead (/), or not adduced (?h). A 
 fortiori, this was done Avhere the second witness supported the 
 deed {n), or where the repudiating witness was contradicted by 
 other evidence (o). 
 
 § 914. These [jrinciples seem to have been disregarded in an 
 old decision (j_>), where the deed — a Avill, rational in its bequests — 
 had been executed notarially. Both of the notaries and the four 
 instrumentary witnesses swore to having heartl the deed read over, 
 the notaries stating, also, that the deceased said she was pleased 
 with it. The notaries and a bystander distinctly deponed that au- 
 thority to sign had been given by the testator, both verbally and 
 by touching the notaries' pens ; and one of the instrumentary wit- 
 nesses saw her deliver the pen to the notaries, but, having been 
 some distance from the bed where she lay, did not hear her speak. 
 The other three witnesses heard the notaries ask the deceased if 
 she could write ; and they put their names to the deed, believing it 
 to be her testament ; but they distinctly swore that they did not 
 hear her answer the notaries' question, or hear or see her give them 
 authority to sign, either verbally or by touching their pens. There 
 was also proof of her having afterwards spoken of the document as 
 her will. On the whole evidence the Court reduced the will. " It 
 was observed on the bench non dejicitjus sed probatio. In the case 
 of notaries the greatest strictness ought to be observed, and they 
 ought not to be allowed to dispense witli any part of the forms." 
 The author of several learned treatises on conveyancing (/•) serious- 
 ly questions this decision, and states that he "was authorised by 
 the opinions of the Court to say it was ill decided " ; and that, if it 
 had been properly argued, the result would have been different. 
 
 {k) Condie v. Buchau, 1823, 2 S., 432. See, in support of this view, opinions in 
 Cleland v. Cleland, 1838, 1 D., 254. {I) Sibbald v. Sibbald, 1776, M., 16,906 
 
 — Gibson v. Kennedy, 1813, Hume D., 150 — Bell on Testing Deeds, 273. See contra, 
 Stevenson v. Stevenson, 1682, M., 16,886, which is very meagerly reported. 
 
 (m) See Stewart v. Kirkhill, 1672, M., 12,654— Tennant v. Tennant, 1675, M., 
 12,667, noticed above, § 909 (c). (n) Henderson v. Monteith, 1678, M., 11,552; 
 
 12,669; 3 B. Sup., 242, S. C. But see Commissary of Glasgow v. Nimmo, 1673, M., 
 12,661, where the Court in the special circumstances held the deed null, but assoilzied 
 from the conclusion of forgery. There was other evidence. (o) Henderson v. 
 
 Monteitli, supra — Frank v. Frank, supra (a) — Bell on Testing Deeds, 272 — Farmers v. 
 Myles, 1760, IvI., 16,849. See also Richardson v. Newton, 28th Feb. 1811, F. C. 
 
 (p) Farmers V. Myles, 25th June 1760, F. C, and session papers (Arniston Coll., 
 vol. 5, No. 12, Advocates' liibrary). (/•) Bell on Testing Deeds, 241, 244.
 
 §!>17. l.MI'K(H}A'l'l()\ OK DKEDS. 555 
 
 § !I15. Dead witiH'Ssos aro presumed to depKiie in tsu]»port of 
 their attestations ; Imt this ought not to Ite lickl as a full contradic- 
 tion of a sinvi\ing witness who depones negative (.s). 
 
 § 910. When the case occurs l)ef(jre a jury (/), if tiie only evi- 
 dence against the deed is one oi' the instrumentary witnesses, the 
 presiding judge will have to direct the jury in point of law to find 
 the olijections not proved ; hecause the evidence of one witness un- 
 corroborated, is, in point of law, insufficient proof on any issue (u). 
 Where there is corrol)orating evidence, or where Loth instrumen- 
 tary witnesses depone against the deed, the case wall go to the jury 
 under a direction as to the credilnlity of the witnesses and the cir- 
 cumstances of the case (x).^ 
 
 § 917. As such questions usually require a l)alancing of doubt- 
 ful and contradictory evidence, in which a great deal depends on the 
 appearance and manner of the witnesses examined, and on general 
 impressions of credibility which cannot be conveyed by a written 
 proof, they are more likely to be correctly decided l)y a jury, or Ijy 
 a judge hearing the evidence in person, than by tlie Court reading 
 depositions taken on commission, or printed notes of evidence led 
 at a trial. Accordingly, if the proof is sufficient in i)oint of law 
 to entitle the jury to entertain it, their verdict will stand, unless on 
 
 (s) Ersk., 4, 4, 70 ; remarking on Stair, 4, 20, 23. (t) In the Court of 
 
 Session such cases usually go to a jury. In inferior courts (where they seldom occur; 
 a record is made up on the point by articles iniprobatory and approbatory. 
 
 (m) Cleland v. Cleland, 1837 (1st trial), 15 S., 1246. From this case it appears that 
 if the judge, while directing the jury that they may find against the deed, provided they 
 believe the evidence of one of the witnesses deponing against it, does not also point out 
 the necessity for that evidence being corroborated in their judgment, the Court will 
 grant a new trial ; because the judge's charge left the jury to find against the deed on 
 the evidence of one witness uncorroborated. 
 
 (r) In Harkness r. Harkness, 1821, 2 Mur., 5o8, where the proof against the deed 
 consisted of one insti-umentary witness corroborated by facts and circumstances, the 
 jury found tliat the signature was not genuine. In Cleland v. Cleland (2d trial), 1838, 
 1 D., 254, both witnesses deponed against the deed, yet tlie verdict sustained it. In 
 E. Fife V. E. Fife's Trs., 1825, 8 Mur., 504 ; 4 S., 335 ; affd., 2 W. S., 1G6 ; where both 
 witnesses deponed tliat one of them had not seen the granter subscribe or heard him 
 acknowledge his subscription, and their evidence was corroborated by circumstances, 
 the verdict was against the deed, which had unquestionably been signed by tlie "ranter. 
 In Graham v. Johnstone, 1838, Macf. E., 140, also, the jury gave effect to the witnesses' 
 depositions which were corroborated by evidence of handwriting ad'hiced to supjwrt an 
 allegation of forgery. 
 
 2 Morrison v. Maclean's Trustees, fuj^ra, \ 911, note '.
 
 556 COMPA RA TIO L ITER A R UM. § 9 "I "- 
 
 a im»tion for a ncAV trial the Court consider it to be clearly against 
 eviJenee (//). 
 
 § 918. Besides the direct evidence which has thus been noticed, 
 proof in imprubation of deeds usually embraces evidence of hand- 
 writing. This may be derived cither {1st) from witnesses who 
 have become familiar with the handwriting of the person alleged 
 to have written or signed the deed; or (2^) from comparison of 
 that document with his genuine writings,— such comparison being 
 made by the judge or jury trying the case, or by skilled witnesses 
 examined before tiiem. 
 
 § 919. The first of these kinds of proof is competent in all causes, 
 civil (2) or cn-iminal («), where the genuineness of a document is in 
 issue ; and fur the obvious reason, that every educated and intelli- 
 gent person can recognise with more or less confidence specimens 
 of handwriting with which he is familiar. Most people can thus not 
 only identify w^ritings with marked peculiarities, but can recognise 
 those less manifest characteristics which distinguish one person's 
 handwriting from others which resemble it, and from forgeries. 
 Imitations of handwritings, indeed, rarely escape detection by an 
 eye wdiich is familiar with the party's autograph ; for they usually 
 bear marks of constraint, of having been written in fragments, and 
 been repeatedly gone over or " painted," which contrast with the 
 freedom and fluency of genuine Avritings. This identification of 
 handwriting does not arise from a critical examination of the indi- 
 vidual letters, but rather from a general impression derived from 
 the writing as a whole. It resembles the recognition of a friend 
 from a momentary glance at his face, without precisely observing 
 his features {h) ; and it is subject, in even a greater measure, to de- 
 grees of trustworthiness and risk of mistake. Its value, therefore, 
 varies with the intelligence of the witnesses, and their opportunities 
 for having become familiar with the genuine handwriting of the 
 individual concerned. And as illness, strange dress, or unusual at- 
 titude, and the like, cause mistakes in identifying an individual ; so 
 a bad pen, or rough paper, a shaking hand, hurry, and many other 
 
 {y) So held in Cleland v. Cleland, supra, wliere the jury in the second trial found 
 in favour of the deed, and the Court refused a motion for a third trial ; although the 
 first jury (15 S., 1246) had found against the deed upon weaker proof of improbation. 
 
 {z) Stair, 4, 20, 24— Ersk., 4, 4, 71— Tait., Ev., 143. («) 2 Hume, SOS- 
 
 Burnett, 560. {b) This remark hasbeen often made, as in Paul i;. Harper, 
 
 1832, 10 S., 401, per Lord Chief CoTumissionor ; and in Tiirnhull v. Doods, 1844, 6 D., 
 002, per Lord Mackenzie.
 
 § l'2l. VOMl'ARATKi lATKUAUlM. 557 
 
 t]iiii<i;s, (•li;vnp:c the appoaraiico of a ijcrson's liandwritiiig. 'I'liore are 
 also rcseiiililaiii'is ill li.nnlw lit iii;::;8, especiany ;iiiioiig pu])ils ol" tlio 
 same \\Titin^--iuast(.'r, uii»l ('Icrks trained in tlie same office; as there 
 arc likenesses among meuihers of the same family, and occasionally 
 between persons not related. 
 
 § 920. ]\rucli caution and discrimination, therefore, is requircfl 
 in weighing- this kind of evidence. It ought never to be regarded 
 as full proof for the Crown in criminal trials (c) ; and even in civil 
 cases corroborative evidence should be required, unless the proof of 
 handwriting is so full and clear as to shift the onus 'probandi. Con- 
 tradictory evidence of this kind, also, is frequent ; the opposite sets 
 of witnesses speaking with (•(Hilidcnce, and u]i}»ar( nlly fruni cipially 
 sufficient data (f?). 
 
 § 921. The ground of the witnesses' opinion is therefore an im- 
 portant element in estimating their evidence. That whicli is least 
 subject to error is having frequently seen tlie person write. Similar 
 to this, and in general equally satisfactor}', is having often seen spe- 
 cimens of his handwriting, a\ liidi he has acted upon or recognised 
 as genuine, or which have occurred in the course of a corresi)ondence 
 carried on upon the footing of his letters being authentic. There is, 
 however, no ruh' of law defining a certain amount of acquaintance 
 with the handwriting as indispensable; but the oi)ini(m of each wit- 
 ness goes to the jury along with the data on which it has been 
 formed (e). At the same time, the genuineness of the writings upon 
 
 (c) 2 Hume, 395 — Tait Ev., 142. In Algernon Sidney's trial, the infamous Jeft'ries 
 directed the jury that the evidence of three witnesses acquainted with the jirisoner's 
 liandwriting was full and satisfactory proof. But the act reversing his attainder pro- 
 ceeds on the preamble that he was convicted " without sutHcient legal evidence ;" there 
 having been found in his closet a paper which " was not proved by the testimony of any 
 one witness to be written by him, but the jury were directed to believe it by comparing 
 it with other writings" of his; 9 State Tr., 854. 
 
 (fZ) As in Buchanan r. Buchanan, 1810, Buchanan's Rep., 88 — Turnbull v. Doods, 
 1844, 6 D., 897— Anderson r. Gill, 1850, 22 Sc. Jur., 478; afl'., 3 Macq., 180. In tlie trial 
 of Justice Johnstone, 1805, 29 State Tr., 414, there were four witnesses on this point for 
 the Crown, and five for the prisoner ; and in Bishoj] Atterbury's trial for publishing 
 libellous letters (1723, 16 ib., 510, C23, G26), the number of witnesses on each side was 
 three ; and those adduced for tlie prisoner seemed to have the better means of know- 
 ledge. There was circumstantial evidence of guilt, and the House of Lords found for 
 the prosecution. But forty peers dissented, on the ground (inter alia) that tlie hand- 
 writing had not been proved. See § 921 (A). 
 
 (e) In England, the opinion which a witness had formed from one previous docu- 
 ment proved to be genuine was allowed to go to the jury ; Burr i;. Harper, 181G, Holt's 
 N. P. Ca., 420; 2 Phil., 251. Evans, in his translation of Pothier (vol. ii, p. 186), men- 
 tions a case which occurred at Lancaster assizes in 1799, whore a judge went the length
 
 558 COM r AHA no liter a rum. % 021- 
 
 Avliieh the opinion is fonmlcd must bo undoubted. Tims, to prove 
 the handwriting of a member of Parliament, the testimony of an 
 inspector of franks in the post-office, who had never had occasion 
 to apph' to him to verify his signature, was rejected in an English 
 case (/). And where the question related to the handwriting in 
 a certain book, it was held not to be enough that the wdtness had 
 compared it wath the will of the alleged waiter, which lay in Doc- 
 tor's Commons, and was supposed to be holograph ; because the 
 genuineness of that document w\as not admitted or proved {g). 
 But in a trial before the House of Lords for publishing four libel- 
 lous letters, said to have been wa-itten by the defendant's secretary, 
 the hand\ATiting was allowed to be proved by three clerks in the 
 post-office, who had opened and copied three of the letters before 
 forwarding them to their destinations, and who swore that these 
 were in the same handwriting as the fourth, which was proved to 
 have been written by the secretary (Ji). 
 
 § 922. The other test of genuiness of handwriting by compari- 
 son of the writing in issue with genuine writings of the party — the 
 comparison being made by persons previously unacc|uainted with 
 the party's handwriting, and with a view to the individual trial — is 
 competent both in civil and criminal causes (i). 
 
 § 923. It may be made by the Court in cases where they decide 
 without a jury {h) ; and by the jury both in civil (/) and crimi- 
 
 of admitting an attorney who swore to a knowledge of the opposite party's handwriting 
 from having once looked over his shoulder when writing a letter in an alehouse. But 
 the judge " made some observations on the evidence which decided the fate of its cre- 
 dibility." (/) Batchellor v. Honeywood, 1799, 2 Esp., 714. 
 
 {g) Eandolph v. Gordon, 1818, 5 Price, 312. (A) Bishop Atterbury's case, 
 
 1723, 16 State Tr., 510, 023, 626 ; mpra {d). (0 Stair, 4, 20, 24— Ersk., 4, 
 
 4^ 71L2 Hume, 395— Burnett, 560— Tait Ev., 142. 
 
 (k) This was done by the Court of Session before the introduction of civil jury trials ; 
 Anderson v. Johnston, 1672, M., 12,660— Gaw v. AVeems, 1675, M., 16,929-E. Eglin- 
 ton V. Durham, 1706, M., 12,670— and recently in Anderson v. Gill, 1850, 22 Sc. Jur., 
 478. In modern practice the comparison is often made by the Court in suspensions in 
 the Bill Chamber on the ground of forgery. Thus in M'Arthur v. Paterson, 1825, 3 S., 
 607— Bruce v. Borthwick, 1827, 5 S., 517— Paterson v. Mitchell, 1826, 5 S., 43— Ross 
 V. Baxter, 1828, 6 S., 476— Wilson v. Mitchell, 1827, 5 S., 318— Eraser v. Thomson, 
 1827, 6 S., 323— and lioss v. Miller, 1831, 10 S., 95, suspension was granted without 
 caution on the comparatio literarum, except in Ross v. Baxter, where caution was oifered. 
 In Troup v. Rigg, 1838, 1 D., 356, suspension was granted without caution, the circum- 
 stance as well as the comparison proving forgery. In Paterson v. Eccles, 1822, 1 S., 
 550, and Wylie v. Brand, 1836, 14 S., 553, suspension, on the ground of forgery, was 
 refused after a comparison. See also Cameron v. Eraser & Co., 1830, 9 S., 141. On the 
 great value which this inspection may be entitled to, see the remarks of Lords Ch. 
 Eldon and Redesdale in Duff v. E. of Fife, 1828, 1 Sh. Ap. Ca., 512, 520. 
 
 {I) Hepburn v. Cowan, 1817, 1 Mur., 264— Melville v. Crichton, 1820. 2 ib., 293 —
 
 §924. CUMl'AUATW LITEUARUM. 559 
 
 nal {ill) trials; a practice which is also followed in England («). 
 The judge, however, generally cautions the jury not to rest tlioir 
 verdict on a comparison so made hy themselves; which is useful as 
 testing the evidence of witnesses to the handwriting, ruthur than as 
 a suhstantive l)ranc]i of the proof (o). In a late trial of an issue of 
 forgery, tlie presiding judge allowed the jury to inspect the docu- 
 ments in the jury-hox, but not to take them to their retiring 
 room {p). Where the jury on a first trial inspected the docu- 
 ments, the Court, in considering a motion for a new trial on the 
 ground of the verdict Ijuing against the evidence, will take the 
 same course, in order that tliey may sec the case as it was proved 
 before the jury (</). 
 
 § 924. Under this practice the judge or jury may form their 
 opinions on grounds which have not been adverted to in the argu- 
 ment, and which the party to whom they are unfavourable miglit 
 have sho^^^l to be fallacious, if he had anticipated that they would 
 be regarded as important. On this account the Justiciary Court 
 has on two occasions withheld the documents from the jury (r). 
 
 Lindsay v. Gilclirist, 1822, 3 ib., 103— Paul v. Harper, 1832, 10 S., 488— Brysnn v. 
 Crawford, 1834, 12 S., 937— M'Dowall v. Campbell, 1838, Macf. R., 100— Gellatley v. 
 Jones, 1851, 13 D., 961— Macf. Pr., 226. 
 
 {m) Paul V. Harper, 10 S., 494, per L. Meadowbank— 1 Alison Crim. Law, 413. It 
 is understood that of late this practice has been less frequent. Lord Justice-Clerk Hope 
 was understood to disapprove of it. 
 
 («) 2 Phillips, 256— Taylor, 1221. 
 
 (o) See the following cases above noted {I). In Gellatley v. Jones (forgery), Lord 
 President Boyle cautioned the jury " not to found their verdict on a comparison of tlio 
 handwriting, but upon the evidence they had heard." In Lindsay v. Gilchrist (forgery), 
 the Lord Chief-Commissioner, in allowing the jury to look at the genuine documents 
 and those in issue, said, " but the jurors ought in all cases to act upon evidence, and it 
 would be very dangerous were they to judge whether the documents are forged or not. 
 
 You will look at the bills, not to judge by your skill in handwiiting, but 
 
 to see whether the witnesses properly describe the dissimilarity." His Lordship's 
 charge in Melville v. Crichton w;vs substantially the same, although not so copious. In 
 Bryson v. Crawford Lord President Hope said, if the comparison tends " to satisfy you 
 that the signatures in issue are written by the same person who wi-ote the genuine sub- 
 scriptions, this is a piece of real evidence corroborative of the deposition of ChrLstie ;" a 
 witness acquainted with the handwriting. In Paul v. Harper, Lord Meadowbank said 
 {obiter), in criminal cases "it is the established practice to have the documents handed 
 about for judges and jury to use tlieir own eyes and form their own opinion from in- 
 spection. I do not pretend to say whether tliis be expedient or not." In Macdowall v. 
 Campbell the same judge allowed the jury to look at the deed in issue, in order to eee 
 whether the signatures were like those of a person almost entirely unable to write. 
 
 {p) Gellatley v. Jones, 1851, 13 D., 961. {q) Paul v. Harper, 1832, 10 S., 
 
 488. (r) Robertson, 1840, J. Rhaw, 186— M-Gale, 1849, ib., 194. 
 
 VOL. I. 2 X
 
 aiJU COMrAKATiO LITEUARUM. §924- 
 
 But it is understood that the practice on the point is far from being 
 
 imifonn. 
 
 § 925. It is competent in Scotland, both in civil (s) and crimi- 
 nal (0 cases, to adduce engravers, writing-masters, bankers' clerks, 
 and other persons whose attention is commonly directed to the exa- 
 mination of handwritings, and who have compared the writing in 
 issue with genuine documents written or signed by the party. But 
 the value of this evidence is ver>^ small ; for, besides being subject 
 to the same defects as the opinions of persons speaking from pre- 
 "vious familiar knowledge, it arises from a forced acquaintance with 
 the handm-iting, derived from a few, often from selected, speci- 
 mens ; while the examination is made solely with a view to giving 
 evidence in favour of the party to whom the witness looks for re- 
 muneration (w). When one is subject to such biassing influences, 
 his evidence on a matter of opinion deserves but little credit ; for 
 even v.ith an honest witness the wish is apt to be father to the 
 thought. This class of witnesses, accordingly, can generally be got 
 to swear on either side of the case, in equal numbers, and with 
 equal confidence (x); indeed they very seldom refuse to give evi- 
 dence for the party who first appHes to them. It has been said 
 that their chief use is to indicate those points to which the judge 
 or jury should direct their attention, in comparing the wTiting in 
 
 (s) Ersk., 4, 4, 71— Tait Ev., 142— Cases in following notes. 
 
 {t) 2 Hume, 395—1 Al. Crira. Law, 411— Harvey, 1885, Bell's Notes, 61— Hunters, 
 1838, ib., 61 ; 2 Swin., 14, S. C— Eraser and Wright, 1835, Bell's Notes, 61. 
 
 (m) In Turnbull v. Doods, 1844, 6 D., 901, Lord President Boyle, after a judicial ex- 
 perience of more than thirty years, said.—" As to the handwriting, a set of engravers 
 have been examined on both sides, to whose testimony I pay very little attention, as 
 their opinion is very little to be depended on. In this, as in all other cases, they take 
 different sides. It seems to be part of their profession to take different sides. I have 
 sat in many cases, both civil and criminal, where the most respectable engravers gave 
 the most opposite opinions. Theirs is a sort of evidence from which no safe conclusion 
 can be drawn." In the same case, Lord Mackenzie said, " In almost all countries the 
 evidence of persons of skill is almost totally abandoned on this subject." In Greig v. 
 Clark, 1829, 7 S., 773, Lord Balgray observed, " It is very dangerous evidence to rest 
 on." In Hunters, sujjra, where three engravers concurred in holding that certain docu- 
 ments were in the prisoner's handwriting, Lord Moncreiff termed the opinions of such 
 persons " the worst possible species of evidence ;" and the presiding judge (Lord Just.- 
 Cl. Boyle) told the jury, that to himself and his brethren on the bench the evidence ap- 
 peared deficient. The jury found that part of the charge " not proven." 
 
 (z) See, for example (from among many cases where this has occurred), Buchanan 
 V.Buchanan, 1810, Buchanan's Rep., 89— Eraser t;. "Wilson, 1842, 4 D., 1171— See, 
 also, per Lord President Boyle in Turnbull v. Doods, supra; and per Lord Meadowbank 
 in M'Dowall v. Campbell, 1828, Macf. R., 100— Macf. Pr., 226.
 
 § 1)27. COMIW II ATI" 1. 1 TF.ItA I,' I '.)/. TjG 1 
 
 issue with genuine Jtjcunients (-/). Tlnj Court lias appiuvetl (jt" tli»^ 
 parties agreeing t(j (lis[)en8e with this kind ni' evidence {z) ; and it 
 is helieved that now-a-days tliere ar(.' U-w juries and fewer judges 
 wlio W(juld Ite inlluenced hy it. 
 
 This mode of proving handwriting is inaihnissihh- in Eng- 
 land (rt), except for tlie purp(jse of showing whetlier the document 
 in issue is written in au imitative style {h). The exclusion has 
 been disapproved of by several text writers (c). 
 
 § 926. Persons of skill, instead of l)eing adduced as witnesses 
 for either party, sometimes give their opini(jns under a remit from 
 the Court. Being free from the biassing influences above adverted 
 to, and being the results of deliberate and recent comparison by 
 skilful eyes, these opinions sometimes carry considerable weight in 
 questions of handwriting. Such remits are common in the Court 
 of Session and Bill Chamber, when the case is not tried by a jury {d). 
 They are not used in jury trials. 
 
 § 927. With regard to the documents tendered as genuine for 
 the purpose of comparison, the rule is that they must be dated be- 
 fore the one in issue, where they are in the handwriting of the per- 
 son leading the proof, or some one wdth whom he is in concert ; 
 otherwise documents might be prejDared for the purpose of compari- 
 son (e). But the opposite party is not so restricted (/). It is 
 thought that documents collateral to the issue should not be re- 
 ceived merely for this purpose, unless their genuineness is ad- 
 mitted ; because a fair selection of them cannot Ite expected ; and 
 as each must be proved to be genuine before the comparison of it 
 with the document in issue can proceed, a numl)er of collateral 
 trials would l>e re(iuired, which would tend to perplex the jury on 
 the main cpiestion {g). Fac-similes of handwriting are also inad- 
 missible for the purpose of comparison ; because, being made piece- 
 meal, they are apt to want the freedom and fluency of genuine 
 writings; and it is absurd to use a fabricated document as a test 
 
 {y) Per Lord Meadowbauk in M'Dowall v. Cami)bell, supra — Prr Lord Maekeuzie in 
 Turnbull v. Doods, supra. (z) M'Dowall v. Wightou, 1830, 5 Mur.. 111. 
 
 (a) 2 Phil., 254; 265— Taylor, 1213-2 Evan's Pothier, 184-1 Greeul., 701. 
 
 (b) Phil., supra. (c) Taylor, sujyra — 2 Evan's Pothier, 185. 
 
 {d) As in Henderson v. M'Artney, 1828, G S., 460— Wilson i-. Hart, 1826, 4 S., 504 
 — Case of Humphreys {soi-disant Earl of Stirling) in Court of Session, 1838, noted in 
 Swin. Report of the trial, p. 163. As to how far the report of the person remitted to is 
 conclusive, see infra, ? 2000. (e) Cameron v. Eraser & Co., 1830, 9 S., 141 — 
 
 Ross V. Waddell, 1837, 16 S., 1219. (/) Eraser i-. Wight, 1838, Bell's Notes. 01. 
 
 {g) See 2 Piiill., 261— Taylor, 1213—1 Urecnl., 701. 
 
 2 N -1
 
 562 IMPROBATION OF DEEDS. § 927- 
 
 wlielher aiiutlier dueimient is gciniino (A). Lilliograpliic fac-similcs 
 are sometimes used of consent ; but even this has been considered 
 incompetent (i). 
 
 § 928. Besides the evidence of handwriting, all other relevant 
 circumstances are admissible in questions of improbation. Thus 
 regard has been had to the facts that the drawer of a bill challenged 
 as forged, was a notorious forger {k) ; and that the acceptor's name 
 had been forged to other bills under nearly the same circumstances 
 as the one in issue (?). So in a civil trial of forgery of the accep- 
 tor's name to a bill, proof was received that the signature of a co- 
 acceptor was not genuine (m). There may also be proof of alibi, 
 to show that the alleged grantor could not have subscribed the do- 
 cument at the time and place set forth in it (n). 
 
 § 929. Fabrication of a deed is sometimes proved by its pre- 
 tended date being subsequent to that of the government stamp, or 
 water-mark, on the paper upon which it is written, or by its being 
 on a kind of paper the manufacture of which was not introduced 
 till after the date which the deed bears (o). The paper mark, how- 
 ever, is by no means a sure test ; for it is customary among manu- 
 facturers both to post-date and ante-date their paper moulds (p). 
 A striking instance of forgery detected by anachronisms has been 
 given in noticing the trial of Humphreys for forging writings in 
 support of his claim to the Earldom of Stirling (r). In another 
 
 (h) E. Fife V. Fife's Tr., 1816, 1 Mur., 108— Kingau v. Watson, 1828, 4 Mur., 494. 
 
 (i) Per L. Ch. Commissioner in E. Fife v. E. Fife's Tr., supra. 
 
 (k) Milne v. Littlejohn, 1838, 1 D., 137. (l) Troiip v. Begg, 1838, 1 D., 356. 
 
 (m) Gellatley v. Jones, 1851, 18 D., 961. (m) See Ersk., 4, 4, 71— In E. 
 
 Eglinton v. Durliam, 1706, M., 12,670, wliere it was only proved that the party had 
 been seventeen miles away, the deed was sustained. (o) See Miller v. Fraser, 
 
 1826, 4 Mur., 118 ; 4 S., 551. (;j) In Rodger v. Kay, 1834, 12 S., 317, the de- 
 
 fesuder adduced two persons who believed they were the only makers of paper moulds 
 in Scotland, and who stated " that it was not uncommon in practice, in making a mould 
 as late as November in one year to give it the date of the ensuing year, or to post-date 
 or ante-date the mould, or to afBx the words ' London ' or ' Bath ' to moulds made to be 
 used iu Scotland." One of them was at the time of his examination (in 1834) making 
 moulds with the date 1828, under a special order. See also Miller v. Fraser, supra. 
 
 (r) This case is fully noted supra, g 289. In Miss Edgeworth's tale of " Patronage," 
 the denouement is founded on a will being discovered to be false by the counsel having, 
 as a last resource, requested that the seal might be broken ; whereupon the wax was 
 found to contain a copper coin later in date than the pretended deed. In noticing this 
 curious piece of real evidence, Mr Dumont (Abridg. of Benth. Ev., p. 185) says, " I 
 have been told by the writer of the tale, that this denouement, which has been blamed 
 as improbable, was taken from a real fact, and the anecdote had been preserved in her 
 own family, which had particular reasons for remembering it."
 
 § OyO. LMPROBATION OF DEEDS. 563 
 
 case the dale of an assignation to a bond and relative decree was 
 proved to be false, by the fact that the decree was dated four months 
 posterior to it (s). The same kind of proof was adduced in the 
 English case of Lady Ivy (/). Two deeds were there founded on 
 by the defendant, bearing to be dated in the second and third 
 years of Philip and Mary, " King and Queen of England, Spain, 
 France, both Sicilies, Jerusalem, and Ireland, Defenders of the 
 Faith, Archdukes of Austria, Dukes of Burgundy, Milan, and Bra- 
 bant, Counts of llapsburg, Flanders, and Tyroll." The counsel for 
 the plaintiff objected that Philip and Mary were not styled King 
 and Queen of Spain, and of both the Sicilies, until several months 
 after the pretended dates of the deeds ; and that their title of Arch- 
 duke of Burgundy had never been put before that of Milan. This 
 objection was proved by the statute-book and the fines of the Easter 
 term following the pretended dates of tlie deeds, which showed that 
 the old style had then been used in tlie [tublic records. Several 
 conveyances, also of the same period, were all in the old st3'le ; and 
 the defendant was unable to meet the challenge of the plaintiff's 
 counsel, to produce a single genuine deed of that time bearing the 
 titles which appeared in the deeds in issue. The mode in which 
 these had been fabricated, and made to bear the appearance of age, 
 was also proved by direct evidence (u), which reminds one of the 
 literary frauds of Chatterton. The jury found for the plaintilf, thus 
 determining that the deeds were forged. 
 
 § 930. In questions as to the authenticity of wills there is fre- 
 (piently proof of the terms on which the testator lived with the 
 persons favoured by the deed, and of his good or bad feeling towards 
 his next of kin. Sometimes, also, the ability of the testator to have 
 endured the fatigue of writing several pages at the date of a will 
 bearing to be holograph is in evidence ; as well as the opportunities 
 
 (s) M'Math V. Oliphant, 1674, M., 12,665 ; 6788. (t) Mossam v. Daiue 
 
 Tlieodosia Ivy, 1684, 10 State Tr., 555 ; 615. 
 
 (m) One witness stated, " I did see Mr Duftct forge and counterfeit several deeds 
 for my Lady Ivy. . . . For the making of the outisides look old and dirty, (hoy used 
 to rub thcni on windows that were very dusty, and wear them in tlieir pockets to crease 
 them for some weeks together, according as tliey intended to use them. . . . When 
 tlicy hail been rubbed upon the window it was used to lay them in a balcony, or any 
 i>pen place for the rain to come upon them and wet them, and tlicn the next sunshine 
 day tliey were exposed to the sun, or a fire made to dry them hastily, that they might 
 bo shrivelled." Another witness identified certain bottles as liaving contained the ink 
 with which tlie forged deeds had been written. She stated that the person who wrote 
 tlic deeds liad told her that "with ink out of these bottles he could make new written 
 writings look like old ones very soon." 10 State Tr., 622, •].
 
 0(14 IMPKOBATIOX OF DEEDS. § 930- 
 
 Avhicli the persons fouudiug on the will had of access to the de- 
 ceased's repositaries (x). And the subsequent acts of the granter 
 of a deed may prove its genuineness ; as where he has recognised 
 it as valid {i/) ; or where it is narrated in another deed, which is 
 admitted or proved to be genuine (z). 
 
 § 931. In the time of Lord Stair the indirect manner of impro- 
 hation by comjjarison of handwritings, &c,, was "not competent, 
 while the direct manner was competent" («). Mr Erskine (6) ob- 
 serves, at greater length but less decidedly, " As a direct manner 
 of improbation affords a full and strictly legal evidence, whereas in 
 the indirect the proof is merely presumptive, a rule has thence 
 arisen (which, however, is not always observed) that there is no 
 place for the indirect so long as the direct is in c»ur power." Ac- 
 cording to ]\[r Burnett (c), "it has been held as a rule that when 
 the direct mode of proof can be resorted to, there is no room for the 
 indirect. This (he says) is founded on the maxim that the best 
 evidence ought in every case to be brought. This rule, however, 
 has not always been adhered to in the proof of forgery. It has 
 generally been left more as a matter of argument to the jury, than 
 determined in the first instance by the Court." Lord Bankton (d) 
 lays down distinctly that the old rule, which required the direct 
 proof to be adduced before admitting the indirect, has been aban- 
 doned. He says, " It was formerly thought that the indirect man- 
 ner was not competent while the direct manner could be used, the 
 instrumentary witnesses being alive ; but it hath been since found 
 otherwise {e). This happens when the witnesses insert are persons 
 of no fame, or other circumstances concur for not adducing them." 
 The point arose in a recent trial on an issue, whether a trust-settle- 
 ment, l)earing to have l)een regularly sul)scribed before witnesses, 
 was forged. The party challenging the deed tendered evidence of 
 engravers, without having previously examined the instrumentary 
 witnesses ; whereupon the presiding judge (Lord Justice-Clerk 
 Hope) observed that the proper course was to commence by ex- 
 
 (x) See illustrations of this class of cases in Buchanan v. Buchanan, 1810, Buchanan's 
 Kep., 88— Tumbull v. Doods, 1844, 6 D., 896— Anderson v. Gill, 1850, 22 So. Jur., 478.3 
 
 (y) As in Thomson v. M. Annandale, 1829, 7 S., 305. (z) See Duflf v. E. 
 
 Fife, 1823, 1 Sh. Ap., 451, per L. Ch. Eldon. (a) Stair, 4, 20, 26. 
 
 (6) Ersk., 4, 4, 70. (c) Burnett Crim. Law, 561. (f/) Bankt., 1, 10. 
 
 2:^,0. (c) Citing Newt. Decis., 49 ; An., 1683, June 1723 ; Innes, This case 
 
 li;ts not been found in the books. 
 
 ' 20 D.. 132(i. In House of Lords, 1858, 2 Mar<[., 180 ; 80 Sc. Jur., 407.
 
 § i)32. IMPKOBATION OF DEEDS. oOo 
 
 .•luiiiiing these i)er.sous ; bocuusc the deed being- put in !»}' the pur- 
 i^ucr proved itself, and he must begin with the primary evidence on 
 the fact of its execution. Ilis Lordship considered tliat as one of 
 the instrumentary witnesses had been called as a defender unneces- 
 sarily, it would, in the circumstances of the case, be most unjust 
 and dangerous to admit the evidence of engravers in the first in- 
 stance. The pursuer having thereupon consented to a verdict in 
 favour of the witness who appeared as a defender, and having again 
 tendered engravers without adducing either of the instrumentary 
 witnesses, the defender o})jected that the latter should first be called. 
 The learned judge " thought tliat on principle the objection was 
 sound ; ])ut that in tltc circumstances of the case it would not be 
 prudent to apply the principle, especially after having secured to 
 the defender the ])enefit of tlie evidence " of the instrumentary wit- 
 ness who had previously been a defender." His Lordship, however, 
 " intimated tliat he was very doul^tful whether this was not too 
 great a relaxation of the rules of evidence in favour of the pur- 
 suer"(/). 
 
 § 932. With great deference to the opinion thus rpioted, it is 
 thought that the rule laid down by Bankton, and supported (as 
 Burnett states) by modern practice, is correct, namely, that the 
 party challenging a deed as false is not oldiged in law to adduce 
 the writer or instrumentary witnesses, and that their absence is 
 only a matter for observation to the jury by the other party. The 
 instrumentary witnesses may have been accessory to the fraud 
 which the party leading the proof seeks to expose ; or he may know 
 that, either from want of recollection or from partiality to his op- 
 ponent, their testimony would be prejudicial to him. Besides, in 
 most cases the evidence of persons against the authenticity of a 
 deed which they attest is open to grave suspicion (</). If, then, a 
 party challenging a deed were obliged to commence with examining 
 the instrumentary witnesses, he would often have first to disprove 
 his own case, and then to lead i)roof in contradiction of witnesses 
 of little credibility, whose evidence he fully expected would be in 
 
 (/) Fraser v. Wilsou, 1842, 4 D., 1171. (This case does not aeem to have been he- 
 fore the Court, either on a bill of exceptions or a motion for a new trial.) The learned 
 judge's opinion is supported by an old case, Monteith v. Hfuderson, 1677, 2 B. Sup., 
 219. where " the Lords found that if there were no doubtfulness in the improbation by 
 writer and witnesses, there was no room for the indirect manner ;" but admitted tlie 
 hitter on account of the direct evidence not being conclusive. The liiiding in tliis case 
 assumes that the WTiter and instniniciitary witnesses reipiirf first to W examined. 
 
 (ff) Siipni, <i 911.
 
 666 IMPEOBATION OF DEEDS. § 932- 
 
 favour of his opponent. Tins mode of procedure seems to be both 
 anomalous and unnecessarj^ ; since it is equally in the power of the 
 other party to adduce the instrumentary witnesses, if he thinks that 
 their e^^dence ought to be laid before the jury. Indeed, it may be 
 taken for granted that when one party does not adduce them, he 
 anticipates that their depositions would favour his adversary. The 
 rule which requires the best evidence seems not to make it neces- 
 sary for the pursuer to commence by examining them ; because, as 
 already mentioned, that rule does not exclude evidence from one 
 source of information, merely because better evidence from some 
 other, luit independent, source has not been exhausted (Ji). 
 
 § 933. Neither principle nor practice requires persons previous- 
 ly acquainted with the handwriting in issue to be examined before 
 skilled witnesses speaking to a comparatio literarum. 
 
 The rules as to examining one bank officer in questions of for- 
 gery of the handwriting of another have been already noticed (/). 
 
 CHAPTER IX. — OF THE DELIVERY OF DEEDS. 
 
 § 934. Most deeds rec[uire not only to be validly executed, but 
 also to be deHvered to the grantee or some one for his behoof ; be- 
 cause so long as a deed remains in the grantor's custody and under 
 his control, it cannot be held that he has finally resolved to be 
 bound by it {a). The rule is also designed for protecting credi- 
 tors against fraud by debtors granting latent deeds to their preju- 
 dice (6). 
 
 I. What Writings require to he delivered. 
 
 § 935. Delivery is indispensable to most unilateral deeds, 
 whether onerous or gratuitous (c). This holds with peculiar force 
 as to bonds, bills, and other writings of personal obKgation ; the 
 possession of which by the obligant raises the double presumption 
 that they were either not delivered, or were returned to the grantor 
 on payment or discharge {d ). So, a deed of discharge undelivered 
 
 {h) See supra, % 75, et seq. (?) Supra, ?§ 80, 81. («) Ersk., 
 
 3, 2, 43— Bell's Pr., § 23— Tait Ev., 156. (6) Dishingtoune w. Dishingtoune, 
 
 1628, 1 B. Sup., 259— Simpson v. Finlay, 1G97, M., 11,570— Boyd v. Laird of Niddrie, 
 1661, M., 16,993. (c) Ersk., s?<pra— Tait, supra. {d) Sec infra § 951.
 
 § 937. DELIVERY OF DEEDS. 5G7 
 
 will bo liuld to have Lecn executed spe mnnerandae pecuniae (c) ; 
 and a creditor arresting" a debt will not ])e prejudiced by a discharge 
 i}[ it which was executed before, but not delivered till after, the ar- 
 restment (/). In like numncr, a decree-arbitral not delivered to 
 the parties, or intimated to them as containing the arl»iter's final 
 determination, is held oidy to contain an intended decree, although 
 it may have been placed in the hands of the clerk to the submis- 
 sion {(f). A deed which does not fall under any of the exceptions 
 afterwards noticed will not be sustained if it was found undelivered 
 in the granter's repositories after his death (A) ; even where the 
 suddenness of that event, and the circumstances of tlie case, make 
 it highly probable that he had finally resolved to be bound by the 
 deed (/). 
 
 § 93G. AVliere there are several co-obligants, each of them is 
 entitled to cancel his subscription, or to resile, so long as he has 
 not parted vnWi the deed for the purpose of delivery to the credi- 
 tor {k). And the transmission of such a deed among the co-obli- 
 gants themselves docs not destroy the right of any of them to resile 
 so long as the obligee has not received delivery {I). 
 
 The rule which requires delivery is subject to the following ex- 
 ceptions. 
 
 § 937. Deeds ivliicli contain a clause dispensing ivith delivery are 
 efiectual although undelivered, because they sufficiently mark the 
 final intention of the granter (m). They are of the nature of mortis 
 causa deeds, retained for the purpose of cancellation if the granter 
 chooses ; but meant to be efiectual if not revoked during his life. 
 It has been said that a clause dispensing with delivery is of no im- 
 portance, except for proving that this was the granter's purpose ; 
 " because if delivery were required by law to make a deed effectual, 
 the granter or testator could not by his own act alter the rule of 
 law" {n). Certainly such a clause will not make the deed in which 
 
 [e) Cochrane v. VnwAc, 1709, M., 12,714— Dickson v. Hume, 1G27, 1 B. Sup.. 49. 
 
 (/) Boyd V. L. Niddric, supra. {g) M'Nair v. Gray, 1827, 5 S., 735; 
 
 affd., 6 W. S., 305— Eobortson v. Ramsay, 1783, M., 653; 17,009; Hailes. 912, S. C— 
 Simpsons. Strachan, 1736, M., 17,007; Elch., "Arbitration," No. 2, S. C. 
 
 ih) Cochrane v. Pringle, wjara- Stamfield's Crs. v. Scott, 1696, 4 B. Sup., 344. 
 
 {i ) Stamfield's Crs. v. Scott, s?/;jra— See analogous cases supra, § 669. 
 
 {k) M'Gill V. Edmoustone, 1628, M., 16,991— Glendinning v. "Wylie, 1634, M., 
 10,992— Fisher v. Campbells, 1736, Elch., "Presumption," No. 7. 
 
 (/) Cases in preceding note— See also Cheyne v. L. Rosehill, 1679. 2 B. Sup., 242. 
 
 (w) Stair, 1, 7, 14 (7)— Ersk., 3, 2, 44— Bell's I'r.. g 24— Logan v. Logan, lS2o, 2 
 S., 253. (n) More's Notes, 408.
 
 568 heliveky of deeds. § 937- 
 
 it'occiirs effectual, while undelivered, in competition M'itli one winch 
 has^heen followed by deliveiy (o). 
 
 A deed making certain alterations upon a prior deed, wdiicli 
 contained a clause dispensing with delivery, was held to he effec- 
 tual, although undelivered ; because it w^as accessory to the first 
 deed (jj). 
 
 § 938. Wrih'ngs of a testamentary nature take effect without 
 delivery ; because they are meant to be final expressions of the tes- 
 tator's will, provided they are found unrevoked in his repositories 
 after his death (r). This applies not only to deeds in the form of 
 testaments, but also to dispositions or assignations reserving the 
 granter's liferent and powder to alter (s), or only reserving power to 
 alter (Jt). The same rule was applied to a deed of entail, which 
 conveyed the liferent to the granter's wife and reserved power to 
 revoke (ii) ; and to a deed conveying the granter's whole estate in 
 trust, for payment of the liferent to himself, and the fee to persons 
 to be named by him {oc). 
 
 In like manner, where a deed contains a reserved power to alter 
 even on deathbed, a writing in exercise of that powder is effectual 
 without delivery ; because the reservation imports that merely exe- 
 cuting a deed of alteration should be sufficient (?/). 
 
 § 939. Bench of provision and other writings b}' a person in 
 favour of his children are effectual without delivery, because parents 
 are the proper custodiers of their children's writings (z), and be- 
 cause such deeds are generally intended to be revocable and mortis 
 causa. Thus the Court sustained a bond obliging the granter to 
 infeft his younger son (ff), and a bond of provision by a father to 
 his children (6), where in each case the deed had been found in the 
 deceased father's repositories. A deed of entail conveying an estate 
 
 (o) See stair, 1, 7, 14 (8). {p) Eleis v. Ingliston, 1669, M., 16,999. 
 
 (r) Ersk., 3, 2, 44— Beir.s Pr., g 24— See Bayne v. Ni.sbet, 1695, 4 B. Slip., 252. 
 
 («) Stair, 1, 7, 14 (7)— Stark w. Kincaid, 1697, M., 17,032— Hadden v. Shorswood, 
 1068, M., 10,997— Cochranes v. Thomson, 1686, 2 B. Sup., 94— Canon v. Gordon, 1687, 
 2 ib., 108. {t) Young v. Waucliope's Heirs, 1685, 4 B. Sup., 2.'')9. 
 
 (m) rorterfield v. Stewart, 1822, 1 S., 9. Kcported on other points in 8 S., 16 ; 2 
 W. S., 309 ; 5 W. S., 515. [x) Brack v. Hogg, 1827, 6 S., 113 ; affd., 5 W. 
 
 S., 61. {ij) Hamilton v. His Sisters, 1624, M., 4098— M'Bride v. Bryson, 1680, 
 
 M., 17,002, 3 B. Sup., 317. In Trotter v. Pitcairn, 1706, M., 17,004, an assignation to 
 a special subject executed in favour of the granter's widow and nieces, and dated after 
 liis will, having been found in his repositories after his death, was sustained as a special 
 j<-gacy. But this was by the narrowest majority. (z) Stair, 1, 7, 14 (7) ; 
 
 Ersk., 3, 2, 44; Bell's Pr., J 24. («) L. Cardross v. E. Mar, 1639, M., 11,440 
 
 16,993, S. C. (6) Wallace o. Wallace, 1024, M., 6344 ; 11,440; 16,989, S. C.
 
 § 942. JiELlVEKY OF DEEDS. 5GH 
 
 to the grantor's oldest daugliter if slio married a certain person, and 
 failing her doing so, to his second daugliter, having hoon found in 
 the father's repositories, was sustained in favour ol" the substitute, 
 the eldest daughter not having iuipknimtcd the condition (r). 
 In like niannor, a hond of provision granted hy a person while in 
 liege poustie, hut delivered when ho was on ileathhod, was hold to he 
 effectual {d). An un<lolivered assignation to a son foris-faniiliatod 
 has heen sustained, although he seems to he the proper custodier of 
 his own deeds (e). The rule includes deeds in favour of the grant- 
 or's natural children (/), and doods hy mothers {(j). 
 
 § 94'). On the samo principle, deeds in favour of the grantor's 
 wife are effectual although found in his possession ; as he is the 
 legal custodier of her writings (A). 
 
 § 941. In one case, whore a person of considerahle wealth died 
 leaving a scni and a minor daughter, the Court found that a hond 
 for 4000 merks, which the son had granted as her tocher, was of 
 the nature of a l)ond of provision, and did not require to he de- 
 livered. Thoy considered that the son had ordy granted the provi- 
 sion which the father would have allowed if he had been alive, and 
 that the deed was in fulfilment of the grantor's obligation to ali- 
 ment his sister, to whom he stood in loco ixirentis (i). 
 
 § 942. According to Erskine, a deed in ivhich the granter has a 
 7'eserved right (e.g., of liferent) is ofiE'ectual without delivery ; be- 
 cause he is presumed to retain it for his reserved interest, and not 
 because his intention that it slioiild he effectual is inchoate (A"). 
 This reason is satisfactory ; but, in the only case (/) which the 
 learned author cites in support of the doctrine, there was a reserved 
 power to alter, and the case therefore comes within another of the 
 exceptions considered above. A disposition under reservation of an 
 annuity to the grantor, not being delivered, was held not to secure 
 
 (c) Stovonson v. Stevenson, KITT, M.. 15,47"); 17,000, S. C. (J) Adair 
 
 r. Adair, lT2o, M., 17,000. (e) Monro i-. Monro, 1712, M., 5052; 17,000, 
 
 S. C. (/) Ersk., 3, 2, 44— Aitkenhead v. Aitkenhead, 1663, M., 10,994. 
 
 (ff) Ersk., supra — See Hamilton v. his Sisters, 1624, M., 4098. 
 
 (A) Ersk., s?/j9ra—Tait Ev., 159— L. Lindores v. Stewart, 1715, M., 6120; 17,006, 
 S. C; contra, Dick-son v. Dickson, 1627, M., 16,990; 1 B. Sup., 238, S. C. But a wife's 
 deeds in favour of her Imsband require delivery ; Lady Bathgate v. Coeliranc. 1685, M., 
 6077 ; 11,569 ; 17,004; S. C. (/) I\Iorrisou r. Morrison. 1693, 4 B. Sup., 40. 
 
 (A) Er.sk., 3. 2. 44— See also Tait Ev., 160— Dulf Feud.. 29— Per L. Lyndhurst in 
 Brark c. Hogg, 1831, 5 "\V. S., 68. (/) Hadden v. Short>wood, 1668, M., 16,997. 
 
 This was also the fact in Stark v. Kincaid. 1679. M., 17.002; citod l.y Mr Tait {supra) 
 in t^upport of the same view.
 
 570 DELIVERY OF DEEDS. § 042- 
 
 tlie disponce iu competition with tlic Crown claiming tlic gTantor's 
 estates on attainder (m). 
 
 § 943. A deed executed in implemcnf of an antecedent obligation 
 seems to be valid without delivery ; because, as the creditor could 
 have insisted on its being granted, he is entitled to recover it when 
 it has been executed (n). On this ground, an heritable bond found 
 in a bankrupt's possession, having been executed in implement of 
 a previous written agreement, was held to be effectual in a reduc- 
 tion on the act 1696, c. 5 (o). 
 
 § 944. Delivery is not requisite in bilateral contracts which 
 have been signed b}^ all the parties ; because those of them who 
 have subscribed and handed the deed to the party in w^hose posses- 
 sion it appears, are effectually bound whenever tliat party has 
 signed ; and the mutuality of the contract forbids that some of the 
 j)arties should l)e bound, while otliers are free (^j). But if only one 
 of the parties has signed, and has retained the deed in his own 
 hands, the others cannot insist on having it delivered in order that 
 it may be completed (r). It has been seen that unilateral obliga- 
 tions by several co-obligants are ineffectual, until they have been 
 delivered to the obligee (s). 
 
 The rule, that delivery is not required in mutual contracts, does 
 not prevent either party from proving that such a deed, when found 
 in the hands of a third person, had been deposited for conditional 
 delivery or implement {t). The rules as to the mode of proving 
 the conditions are noticed afterwards (w). 
 
 § 945. There is some doubt whether, if a deed is found in the 
 hands of the grantee with a discharge or transference indorsed on 
 it, the latter deed is effectual notwithstanding the want of deli- 
 very (v). In one case (x), where a bill indorsed to a person named 
 had been placed by the indorser shortly before death in the hands 
 of his heir, Ijut without special directions regarding its disposal, the 
 Court found the indorsee entitled to the document : and it was ob- 
 
 (m) L. Advocate v. Drummond, 1750, M., 4875; Elch., "Forfeiture," No. 15; affd., 
 Cr. and St., 503 ; S. C. (w) Ersk., 3, 2, 44— See also Morrison v. Morrison, 
 
 1693, 4 B. Sup., 40, sujjra. (o) Cormack v. Anderson, 1829, 7 S., 8G8. 
 
 (27) Stair, 1, 7, 14 (7)— Ersk., 3, 2, 44— Bell's Pr., § 84— Stewart v. Riddock, 1677, 
 M., 11,406— Crawford u. Vallance's Heirs, 1695, M., 12,304; 16,990— Lockhart v. Baillie, 
 1709, M., 8430. {r) Hamilton v. D. Queensberry's Exs., 1833, 12 S., 206. 
 
 (s) Supra, § 936. (t) Stair, 1, 13, 4— Douglas v. Lauder, 1631, M., 12,703— 
 
 Crawford v. Vallance's Heirs, supra — Drummond v. Campbell, 1662, M., 12,309 — See 
 infra, ? 966. (m) See infra, ? 907, et seq. {v) Sec Tait Ev., 100. 
 
 (z) Carrick v. Key, 1787, M., 17,009.
 
 § 947. DELIVERY OF DEEDS. 571 
 
 served on the bench, that " where the conveyance, being contained 
 in the same writing, is inseparable from the document itself, the 
 rule requiring delivery does not hold. Thi.s is analogous to the case 
 of a discharge or declaration of trust written on tlie back of a bond 
 for borrowed money ; whicli must create an inherent qualification 
 of the debt." The report does not state whether the otlier judges 
 ado])ted this view^ ; and the decision may have proceeded on tlie 
 principle of the indorsation being a special legacy, which the de- 
 ceased by his conduct directed his heir to pay. In an earlier case, 
 wliCre a bill with a discliarge indorsed on it had been found in the 
 repositories of the creditor on his deatli, tlie Court refused to sus- 
 tain the discliarge, on the ground that, as it had not been delivered, 
 there was a legal presumption that it had been granted merely spe 
 numerandae xteciiniae {if). It is thought that delivery is not requisite 
 in such cases to make a discharge effectual ; but that non-delivery 
 is an element in the proof admissible in each case for the purpose 
 of ascertaining whether the discharge was written in contemplation 
 of a settlement, or in order to show that the right had' been aban- 
 doned. Indorsing a discharge on a document of debt seems, in most 
 cases, to be a marked token of its extinction. 
 
 II. What constitutes, or is equivalent to, Delivery. 
 
 § 946. Delivery consists in tlie actual transference of the pos- 
 session of tlie deed ; and it does not require either a ceremony of 
 any kind, or a narrative of the res gestae. It is most simple and 
 unequivocal where the granter personally hands the deed to the 
 grantee. Next to this is his delivering it, or directing it to be de- 
 livered, to a person expressly for behoof of the grantee. And it is 
 not necessary that the grantee should have been aware of the deli- 
 very ; his consent not being required for its completion (z). 
 
 § 947. But possession by the grantee, or by another person in 
 his name, is ineffectual, unless it was obtained with the granter's 
 consent, and for the purpose of delivery. Tliis is the case where 
 the deed has been acquired surreptitiously («). So, where the tu- 
 tor of a creditor in pupillarity declined to take delivery of a new 
 bond of caution ; but borrowed it for comparison with the previous 
 bond, and then returned it to have a certain alteration made ; and 
 where the granter's agent again tendered delivery, but the tutor 
 
 (y) Cochrane v. Pringlc, 1700, M., 12,714. (z) Stair, 1, 10, 5— Bortliwick v. 
 
 Lawrle, 168G, M., 7735. {a) See cases infra, g 953.
 
 ■.)I'J. 
 
 DELIVERY OF DEEDS. § *J47- 
 
 declined it, because his office had expired ; the Court held the deed 
 to be undelivered (h). Thus, also, where Woomet granted an as- 
 signation to Boj^d, partly for his own and partly for Boyd's behoof, 
 receiA-ing from Boyd a back-bond ; and where Woomet afterwards, 
 intending to transfer his interest to Biggar, executed in favour of 
 Boyd a discharge of the back-bond, and Boyd delivered a new back- 
 bond to Biggar ; but the discharge from inadvertance remained in 
 Biggar's hands undelivered ;— in a competition between Biggar and 
 an arrester of Woomet's interest, the arrester was preferred ; be- 
 cause the discharge had not been delivered to Boyd or to some one 
 on his behalf (c). In like manner, where an obligation to dispone 
 lands had been handed to a conveyancer Avith directions to prepare 
 a charter in favour of the grantee, the Court held it to be undeli- 
 vered, unless the grantee proved that it had been deposited for the 
 purpose of delivery (d). 
 
 § 948. If the grantor of a deed records it in a pubhc register, 
 he is presumed to intend it shall be effectual ; and therefore such a 
 proceeding is equivalent to delivery (e), and has the same effect in 
 preventing revocation (/). But of course this does not hold if the 
 registration was without the grantor's consent ((/). The (juestion 
 was once raised, but not decided, whether parole proof of the grant- 
 er's orders to record is admissible in a competition between the dis- 
 ponee and the Crown as in right of the grantor's forfeited es- 
 tates (A). 
 
 § 949. A disposition on which sasine has passed (i), and an in- 
 timated assignation {k), are effectual without delivery, provided the 
 grantor consented to the grantee's right being so completed. And 
 where a party, having granted an assignation for relief of the assig- 
 nee who had become his cautioner, used horning thereupon in the 
 
 {b) Glendinniug v. Wyllie, 1634, M., 16,992. (c) Boyd v. L. Niddrie, 1661, 
 
 M., 16,993. {d) Byres v. Johnstone, 1626, M., 16,990 ; 8405. 
 
 '(e)'Ersk., 3, 2, 44— Tait Ev., 160— Duff Feud. Con., 29— Bruce v. Bruce, 1675, M., 
 11,185; 17,000— Gordon v. Dewar, 1771, M., 15,579— Downie v. M'Killop, 1843, 6 D., 
 180— Lecki'e v. Leckie, 1776, M., 11,581 ; M., " Presumption," Appx., No. 1.; Hailes, 
 721 ; 5 B. Sup., 432, S. C. (/) Downie v. M'Killop, sw;j>m— Gordon v. Dewar, 
 
 supra Bruce v. Bruce, supra— 8ee also Leckie v. Leckie, supra. 
 
 (ff) See Scott v. Dishington's Cr., 1628, M., 12,305— Downie v. M'Killop, supra. 
 
 {h) L. Advocate v. Drurnmond, 1750, Elch., " Forfeiture," No. 15 ; reported on other 
 points in M., 4875 ; Cr. and St., 603. (i) M'Intosh v. M'Intosh, 28th Jan. 1812. 
 
 F. C— Bruce v. Bruce, 1675, M., 11,185 ; 17,000— Stair, 1, 5, 6 (5). 
 
 {k) Maclurg v. Blackwood, 1680, M., 845- Trotters v. Lundy, 1667, M., 11,498— 
 But see CockVairn v. L. Graigievar, 1672, M., 11,493, noted irifra, ? 977.
 
 § 952. DKLIVKIJV OF DEEDS. i'u'.^ 
 
 assignee's name, the assignatiun was held to be effectual, although 
 it had not been followed by delivery ((). 
 
 § 950. The judicial ratification by a wife of a deed affecting 
 her own estate is not equivalent to delivery ; because that proce- 
 dure is only designed for securing free consent to her subscrip- 
 tion (w). 
 
 It has already been shown that handing the deed from one co- 
 obligant to another does not constitute delivery to the creditor («). 
 
 III. Presumption and Proof as to Delivery of Deed found in the 
 
 grant er's possession. 
 
 § 951. A deed found in the granter's possession is presumed 
 either not to have been delivered, or to have been returned after 
 delivery for some reason inconsistent with its remaining effec- 
 tual (o). This is peculiarly the case as to those documents {e.g., 
 bonds and bills) which, on payment, are often retired without a dis- 
 charge ; and Avhich, as already noticed, are liable in a high degree 
 to the presumption cJi irographum apud dehitorem repertum presumi- 
 tur solidum {p\ 
 
 There is an important distinction as to the evidence by which 
 these presumptions may be overcome. 
 
 § 952. Where a deed is in the hands of the granter, and the 
 grantee avers that he returned it to that party for a special purpose 
 without abandoning his right to it, his averment resolves into one 
 of trust in the granter of the deed, and in general is not provable 
 by parole (r). This rule is illustrated by a case where a bond of 
 provision granted by an heir to his mother-in-law and half-brothers 
 had been cancelled, and the grantees alleged that it had been bor- 
 rowed by the granter from his father (in whose hands it had been 
 deposited) in trust for a special purpose, and luul lieeu cancelled by 
 the granter without the father's authorit}'. The Court held that 
 the averment could only be proved by the son's writ or oath, " there 
 being no force alleged, but a naked trust" (s). In another case, 
 where a superior pursued a declarator of non-entry, which the vas- 
 sal defended on the ground that the pursuer s ancestor had signed 
 and delivered to him a precept of clare constat, but that he (the 
 
 (0 Dick V. Olipliant, 1677, M., 6548. (m) L. Bathgate v. Cochrane, 1685, 
 
 M., 6077; 11,569; 17,004, S, C. (n) Supra, ? 936. (o) Stair, 1. 7, 14 (5). 
 
 (p) Supra. I 380. (r) Stair, 1. 7. 14 (5)— Tait Ev.. 1G2. 
 
 {«) Aikman v. Aikmaii, 1G77, .M.. 12.281.
 
 574 DELIVERY OF DEEDS. § 952- 
 
 vassal) had afterwards returned it to the pursuer in order to have 
 it sealed ; the Court would not allow the averment to be proved by 
 parole, but only by the pursuer's writ or oath (t). Thus, also, where 
 Dick as his father's factor had executed an assignation in favour of 
 Fairly ; and, on its being found in Dick's hands. Fairly alleged that 
 it had been placed there in order to be used by Dick as his (Fairly's) 
 agent ; the Court refused to admit the averment to proof by wit- 
 nesses (w). 
 
 § 953. But where the grantee, under a deed which is found in 
 the granter's possession, avers that that possession was acquired by 
 force or fraud, he may instruct his averment by parole ; for dole 
 may alwa3"s be proved prow^ de Jure (x). Thus a bill which had 
 been found in the hands of the debtor without a discharge or con- 
 veyance, was restored to the creditor after proof by parole that it 
 had been abstracted from a party with whom he had deposited 
 it (?/). So the Court allowed a proof that the repositories of the 
 creditor in a bond had been broken open and the deed removed ; 
 and that, after passing through some other persons' hands, who had 
 no right to it, it had come into the possession of the debtor (z). 
 And where the creditor in a bond was an ignorant woman, and the 
 debtor was her law-agent, and had access to her papers, he was re- 
 quired to condescend on how the bond came into his hands, as the 
 relative positions of the parties laid the burden of proof upon 
 him (a). Thus, also, where the principal debtor under a bond signed 
 by him and a cautioner, when intromitting with it as tutor of the 
 creditor's heir, delivered it to the cautioner, who tore off his sub- 
 scription, l)ut retained the document ; the Court, holding that he 
 would have been entitled to cancel his subscription on receiving the 
 deed for that purpose, found that he would not be bound " unless 
 it were proved that the bond was destroyed l)y force or fraud, and 
 that the cautioner was party to the fraud" (b). This implies that 
 the proof referred to might be by parole. 
 
 § 954. There are two cases in which parole evidence was re- 
 ceived with a view to overcoming the presumption as to a deed 
 found in the hands of the granter, where neither fraud nor force in 
 
 (0 E. Rothes V. Grant, 1G26, M., 12,273. (w) Fairly v. Dick's Crs., IGGG, 
 
 M., 12,278. {x) See Stair, 4, 32, 3— ib., 4, 45, 24— Sec also siq^ra, §§ 344 ; 
 
 859; 628. (y) Edward v. Fyfe, 1823, 2 S., 431. (z) Fithie's 
 
 Children v. E. Northesk, 4 B. Sup., 70. (a) Burgh v. Jenkins, 1710, M., 
 
 11,410. (b) Monkton v. Carmichael, 1G23, M., 11,404. This decision is 
 
 questioned by Mr Tait ; Ev., 164.
 
 § I>r)5. DELIVKHV OF DEEDS. 575 
 
 obtaining tlie deed were averred. In one of tliesc cases, the credi- 
 tor in a bond in the possession of the granter offered to prove by 
 four Lords of Session that, after the deed had been dehvered, it had 
 been returned in order that the granter miglit get it subrtcril)ed by 
 cautioners ; and the Court " inclined to admit their iir<j]Kition" (c). 
 But this case, wliich is of old date, seems not to be of much autho- 
 rity, as the Court were influenced by the trust-worthiness of the 
 witnesses tendered ; and, as the case occurred at a time when the 
 rules of evidence, especially where trust was involved, were not 
 strictly observed. In the other case referred to the following facts 
 occurred :—rSouthside, having right to a bond granted by Cass, en- 
 tered into a transaction regarding it with the curators of Cass's 
 heir, and got from the heir with their consent a new bond ; but the 
 heir having been restored against that deed on the ground of lesion, 
 Southside pursued him for payment of the first bond. He replied 
 that the document was in his hands, and the presumption therefore 
 was that it had been discharged ; to wliicli Southside replied that 
 the bond had been delivered in contemplation of the transaction, 
 which had been annulled, being implemented. The Court ordained 
 the curators to be examined ex officio as witnesses upon Southside's 
 averments ; and they refused to hold that these could only be proved 
 by the heir's ^^Tit or oath, " because the manner of the delivery of 
 the bond, and the cause thereof were so evident, and the probation 
 so strong and pregnant" (c?). The circumstances, indeed, were 
 sufficient of themselves to convince any one of the truth of South- 
 side's statement. The case, therefore, was a favourable one for ex- 
 amining witnesses ex officio, according to a practice common at one 
 time in cases where restricting the proof to writ or oath of party 
 appeared likely to occasion injustice. 
 
 IV. Presumption and Proof as to Delivery of Deed found in 
 the grantee's possession. 
 
 § 955. When a deed is found in the hands of the grantee, there 
 is a strong presumption that he received delivery of it from the 
 granter, or some one acting under the granter's authority, and that 
 he fulfilled the conditions (if there were any) under wliich tlie 
 granter intended that it should be delivered (<?), 
 
 (c) Melvil V. Murray, 1610, M., 12,271 ; questioned by Tait Ev., 163. 
 (rf) Ellias V. Cass, 1671, M., 12.280. (e) Stair, 1. 7. 14, aii<l 4, 42, 8— 
 
 Ersk., 3, 2, 43— Tait, 1G7. 
 
 VOL. 1. 2 o
 
 aTG KELT VERY OF DEEDS. § 955- 
 
 § 956. Stuir and Erskiue (/) lay doAvii that this presumption 
 can only be overcome by the grantee's writ or oath. But it is 
 humbly thought that the distinction noticed in the preceding sec- 
 tions applies here also. Thus, on the one hand, where the granter 
 acknowledges ha^dng handed the deed to the grantee, but alleges 
 cither that delivery was not intended, or that it was conditional, 
 this, being like an averment of a trust restricting honajide pos- 
 session by the grantee, seems to be provable only by his writ or 
 oath (f/). 
 
 § 957. On the other hand, whore it is alleged that the grantee 
 acquired the deed by force or fraud without the grantor's consent, 
 parole seems to be admissible. Thus it was received to prove that 
 a general disposition (not mortis causa), found in the hands of the 
 grantee, in whose house the granter died, had l)een in the granter's 
 possession until his deathbed illness, and had been improperly ab- 
 stracted by the grantee from among his papers after his death {h). 
 In another case, the Court allowed a proof before answer that a bill 
 found in the hands of an alleged onerous indorsee had not been 
 completed with the drawer's signature till after the acceptor's death, 
 and that the drawer had improperly got possession of the bill from 
 the acceptor's repositories (i). Again, where a bond of provision 
 was alleged to have been got up from the depositary by improper 
 means {^^ viis et modis") the Court allowed the ]3arty and the in- 
 strumentary witnesses to be examined ex officio, as to whether there 
 had been a depositation, and, if so, what were its terms, and how it 
 came to be concluded (¥). The Court also ordained witnesses, and 
 if need be the creditor, to be examined ex officio on the allegation 
 that the deed (a bond) had been lying undelivered in the reposi- 
 tories of the principal debtor, and that he had been unable to man- 
 age his affairs for some years before his death (I). And witnesses 
 were examined ex officio on an alleged fraudulent re-acquisition by 
 
 (/) Stair, ib. — Ersk., ib. In Ogilvie v. L. Balmerino, 1699, 4 B. Sup., 446, where 
 the grantee in a disiTOsition deponed that he got the deed from a third person, who tokl 
 him he had received it for delivery to him, the Court held it to be undelivered, becau.se 
 there was not proof that the delivery had been by the granter's order. 
 
 (^) See Tait Ev., 168. Rutherford v. Rutherford, 1670, M., 12,318. 
 
 (A) Cathcart v. L. Corsclays, 1679, M., 12,325. {%) Farquhar v. Shaw, 
 
 1757, M., 12,341— In Bruce v. Alexander, 1676, 2 B. Sup., 198, parole was admitted as 
 to a bond of provision which the granter alleged his daughter, the grantee, had stolen 
 out of a locked box in which he had kept it. {k) Stewart v. Blackball, 1703, 
 
 M., 12,332. (I) Cheyn v. L. Rosehill, 1679. 2 B. Sup., 242.
 
 § 9r>9. DKLIVEUY OF DEEDS. 577 
 
 the graiitee of a l)Oud after payniont (m). Thus, also, where a con- 
 tract of lease, which had been in the hands of a depositary, was al- 
 leged to have been got up by the tenant by " some unorderly 
 means," and without performing the conditions on which delivery 
 was to have been made, the depositary and persons present at the 
 contract were examined ex officio, and before answer {ii). The 
 principle which these decisions recognise is supported by a case 
 wdiere the Court admitted witnesses to prove that a deed, when 
 blank in the name of the grantee, had been abstracted from the de- 
 ceased gi'antcr's repositories, and completed fraudulently by the 
 person whose name it bore when produced (o). 
 
 § 958. But there are cases of an opposite tendency. In one of 
 them it was alleged that a bond which had been deposited with a 
 third i>erson for conditional delivery, had, with concurrence of the 
 creditor, been abstracted fraudulently from the depositary's premises 
 during his absence ; and the Court held that the averment could be 
 proved only by the oath of the creditor, and not of the deposi- 
 tary (^j). The question, however, seems to have been wdiether the 
 depositar^^'s oath on reference might be taken, and not whether a 
 proof by witnesses w^as admissible. In another case, where a bond 
 was alleged to have been surreptitiously abstracted from among the 
 debtor's writs, and registered and followed by apprising during his 
 residence abroad ; the Court, before answer as to the admissibility 
 of witnesses to prove the averment (" w^hich they found hard to be 
 done, tending to destroy the bond"), ordained the creditor to be 
 examined ex officio, and, on his admitting the facts, they cut down 
 the deed (r). Again, where a party sought to reduce a disposition 
 on the ground that, after the grantor's death, the disponee had im- 
 properly completed it by filling in his own name, when it was lying- 
 in his hands blank in the name of the disponee, the Court restricted 
 the proof to the defender's writ or oath (s). A similar decision was 
 pronounced in regard to a bond, wliicli the grantor averred he had 
 executed blank in the creditor's name, and deposited for another 
 person's behoof, wdtli the party appearing as creditor, who was the 
 granter's father (/). 
 
 § 959. It cannot, therefore, be said that the law is settled as to 
 
 (w) Napier v. E. Eglinton, 1671, M., 12,818. But pamle of the payment was re- 
 fused. («) Douglas V. Lauder, 1G31, M., 12,703. (o) Fordel v. 
 Carriber, 1677, M., 12,324. [p) Williamson v. Tennant, 1G27, M., 12,305. 
 
 (r) Scot V. Dishington's Crs., lf)28, M., 12,305. (j) Laurie v. Drumniond, 
 
 1073, M., 12,320. {t) Rutherford v. Rutherford, 1670, M., 12,318. 
 
 2 2
 
 578 DELIVERY OF DEEDS. § OoO- 
 
 tlie admissibility of parole to overcome the presumption in favour 
 of the grantee holding a deed conceived in favour of himself. It is 
 thought, however, that the leaning of the decisions, as well as cor- 
 rect principle, warrants its admission wherever the allegation in 
 regard either to the mode in which the name of the person holding 
 a document has been inserted in it, or his possession of it has been 
 acquired, involves fraud in him, or in the person through whom it 
 came into his hands (ji)} 
 
 V. Presumption and Proof as to Delivery of Deeds found in the 
 hands of a third persoti. 
 
 § 960. When a deed is found in the hands of a third person, 
 the question, whether he holds it on behalf of the granter or of the 
 grantee, is one of fact, depending on the evidence adduced in each 
 case (x). There are, however, some rules fixing the burden of 
 proof in certain circumstances. 
 
 § 961. If the depositary is connected with one of the parties, 
 he is presumed to hold the deed for that party. This, for example, 
 is the case as to a deed in the hands of the private agent (?/), or the 
 
 (m) This is the view of Mr Tait, Ev., 170. (x) The question may be tried 
 
 by jury ; Maildem v. M'Gruther, 1842, 4 D., 1182. (y) Ersk., 3, 2, 43— Bell's 
 
 Pr., § 23— L. Adv. v. Drummond, 1750, M., 4875 ; Elch., "Forfeiture," No. 15 ; Or. and 
 St., 503, S. C— Irvine v. Irvine, 1738, M., 11,576 ; Elch., " Deathbed," No. 18, S. C— 
 Garden v. Pihnore, 1724, M., 3519— Byres v. Johnstone, 1626, M., 11,566. 
 
 1 A party who, under the trust-deed of his wife, had power to nominate tlie indivi- 
 dual for whom the trustees were to hold an estate, nominated his niece and her heirs. 
 He afterwards executed a deed revoking that nomination, and nominating another 
 niece. At his death the estate was claimed by the second nominee and by the repre- 
 sentatives of the first nominee, who produced the first deed of nomination, which, they 
 said, had been delivered to their ancestor, the first nominee, and had become a delivered 
 irrevocable deed. And they maintained, on the authority of Erskine, iii, 2, 43 (referred 
 to in § 956), that it could not be proved, except by writ or oath, that the deed was de- 
 livered for any other purpose than to confer an irrevocable right. But the Court al- 
 lowed an issue, whether the deed was delivered ; and the representatives of the first 
 nominee stood pursuers of the issue. It was proved that the granter had handed the 
 deed to his niece, the first nominee ; but it was shewn that he was frequently intoxi- 
 cated, and that his niece took charge of many of his papers for him, and that, when he 
 revoked the first deed, ho asked it back from his niece, the first nominee. The jury 
 found for tlie defender, the party nominated in the second deed. The pursuer moved 
 for a new trial, but his motion was refused ; and it was observed from the bench, that 
 the doctrine of Erskine was not to be taken without qualification ; that much depended 
 on the nature of the deed, and that frequently the wliole circumstances required to be 
 taken into consideration; M'Aslon v. Glen, 1859, 21 D., 511.
 
 § 903. DELIVEUY OF DEEDS. 571) 
 
 wife (z), of one party, or iu the hands of hi.s son, especially if the 
 son acts as his father's factor (a). 
 
 § 962. But this presumption will yiehl to contrary probabili- 
 ties and proof. Thus, where a person delivered to his law-agent a 
 letter acknowledging marriage with a certain woman, after she had 
 seen and assented to its terms, the Court found that the agent held 
 it as trustee for her, although he declared that his possession was 
 on behalf of the husband (b). And where a bond of provision had 
 been placed by the grantor in the hands of his agent, by whom it 
 had been recorded, the Court held it to be a delivered deed ; the 
 proof of that fact including several letters of the agent, and one of 
 the grantor, in which he treated it as delivered and irrevocable (c). 
 In like manner, where a deed taking the granter obliged to pay 
 certain sums to his wife, and contingently other sums to their 
 children, had been deposited with her, and by her placed in the 
 hands of a third person, who recorded it, the Court held it to have 
 been delivered in favour of the children, chiefly because the wife's 
 interest in the deed made the delivery effectual as regarded her, 
 and it was not to be viewed as made for a partial pui-pose (d). Thus, 
 also, while a servant of the granter of a deed is presumed to hold 
 it for his master, the master's orders to deliver it to the grantee will 
 be eifectual, although he should have died without their being ful- 
 filled (e). 
 
 § 903. It is presumed that a ncutnd depositary holds an oner- 
 ous deed for unconditional delivery to the grantee (/) ; but that he 
 holds a gratuitous deed (and especially a bond of provision) for de- 
 
 (z) L. Traquair v. E. "Wintou, 1608, 1 B. Sup., 546— Agnew v. Agnew, 1767, 5 ib., 431. 
 
 (a) Fail-lie v. Dick's Crs., 1666, M., 12,278. (6) Hamilton v. Hamilton, 
 
 1842, 1 Bell's Ap. Ca., 736. See Turner's Crs. v. his Chiklrcn, 1783, M., 11,582. 
 
 (c) DowTiie V. M'Killop, 1843, 6 D., 180. (</) Kiddle v. Inglis. 1750, M., 
 
 11,577; Elch.. '-Husband and Wife," 34, S. C. There was considerable diflerence of 
 opinion on the bench iu this case. In another case the Court held a deed to have been 
 partly delivered and partly undelivered; Mair v. Thorns, 1850, 12 D., 748, noticed 
 infra, § 964. (c) Crawford v. Kerr, 18th November 1807, F. C. ; M., " Move- 
 
 ables," Appx., No. 2, S. C. Here a debtor wrote a letter to his creditor inclosing the 
 halves of some bank notes and a bill. He gave it to his servant, wafered and addressed, 
 with orders to deliver it to a runner who took his lettera to the post office. The servant 
 put it beside the other letters for the runner, but the writer of it died early the next 
 morning before the runner arrived ; and tlie letter remained in his house. In a oues- 
 tion between the creditor and a tru.stee (not judicially appointed) for other creditors, the 
 former was preferred to both halves of the notes and to the bill. The Court proceeded 
 \k<Ui on tlie trustee's want of right, and on the nureealled order to deliver. 
 
 (/) Ersk., 3. 2, 43— Bell's ?r., § 23-Tait Ev.. 104: 106.
 
 580 DELIVERY OF DEEDS. § 9G3- 
 
 livery only in case of nou-revocation, or ou fulfilment of a condi- 
 tion (g). Thus, a bond of provision by a father to bis children, 
 which had been deposited by him Avitli their maternal uncle to be 
 kept fur their use, was held to be undelivered and revocable (A). 
 And the same view was taken as to a gratuitous disposition in fa- 
 vour of the grandchild of the grantor, which had been deposited 
 \vith. one who had no connection with the disponee (?'). Thus, 
 also, a bond of provision in favour of the granter's daughter, found 
 in the hands of his uncle, was held to have been deposited for the 
 granter's behoof, and to have been revoked by his incurring debt {j). 
 And where a deed of entail, in favour of the entailer as institute 
 and of certain substitutes, had been deposited with a neutral person 
 " for behoof of all concerned," the entailer was held to have right 
 to redehvery for the purpose of revocation (k). 
 
 § 964. Where the depositary is agent for both granter and 
 grantee, he is presumed to hold for the latter, if the deed is oner- 
 ous (I). Thus where an onerous deed by a mother in favour of 
 her son, to take effect after her death, was found in the hands of 
 her agent, who was also agent for the son and his commissioner 
 during his residence abroad, and who held certain bonds of provi- 
 sion in consideration of which the deed had been granted, the Lord 
 Ordinary (Moncreifi") held the deed to be delivered and irrevocable 
 in favour of the son ; and his Lordship's opinion seems to have 
 been adopted both in the Inner House and House of Lords (m). In 
 another case, the agent for both parties to -an intended heritable 
 security for £900 had possession of the bond ; but although he had 
 received the whole sum from the lender, he had paid only £669 of 
 it to the borrower, to whom he had given a letter acknowledging 
 that only that sum had been paid ; the agent having died bankrupt, 
 in a competition between the borrower and lender it was held that 
 the bond was a delivered document only to the extent of the £669 
 
 (ff) Ersk., ib.— Bell's Pr., ib.— Tait, ib.— correcting Stair, 4, 42, 8. 
 
 (h) L. Monymusk v. Pitarro, 1628, M., 11,566 ; 1 B. Sup., 247, S. C. 
 
 (a) Ker v. Ker, 1677, M., 3249— See contra, Allan v. Allan, 1681, 2 B. Sup., 7; 3 ib., 
 413, S. C. {/} Halwell v. Ly. Cuming, 1796, M., 11,583. With this case com- 
 
 pare Fairlie v. Fairlie, 1630, M., 11,567, where a gratuitous assignation by a mother to 
 her son, having been deposited unconditionally in the hands of his wife's father, was 
 held as delivered and irrevocable. Here the depositary was only connected remotely 
 with the granter ; while in Halwell v. Ly. Cuming he was more nearly related to him 
 than to the grantee. {k) L. Lindores v. Stewart, 1714, M., 7735. The pvo- 
 
 liibitory and other restricting clauses were directed against the entailer, as well as 
 against the substituted heirs. (l) Bell's Pr., § 23 ; Tait, 165. 
 
 (w) Stewart v. Stewart, 1833, 11 S., 327; affd., 1 Bell's App. Ca., 796.
 
 § 9G5. DKLIVEHY OF DEEDS. 581 
 
 received l»y tlio borrower, and tlial as to the balance the agent held 
 the deed undeHv(,Ted Cor behoof of that party {n). The Court con- 
 sidered that if no i)art of the money had been paid to the liorrower, 
 the depositation would have Ijeen re;j,arded as for his behoof for de- 
 livery to the lender on payment ; whereas, if all the money had 
 been paid, the depositation would liave been regarded as for behoof 
 of the latter. Accordingly, as the payment had been partial, the 
 Court (Init with consideralde doubt) held that the delivery corre- 
 sponded to it. 
 
 But the depositation of a gratuitous deed with the agent for both 
 parties is presumed to have been made for the purpose of delivery 
 in case only of non-revocation (o). Thus where a husband and wife 
 executed a joint settlement, mutually l)equeatliing all their effects 
 to the survivor ; and the wife, when her husband was on deathbed, 
 executed a deed which, proceeding on the narrative that she granted 
 it in compliance with his wish, conveyed to his relations a portion 
 of the estate under burden of her liferent; this deed, having been 
 produced by the agent for both spouses, was held to be undelivered 
 and revocable (^:>). 
 
 § 9G5. The presumptions noticed in the preceding sections are 
 not absolute rules of law. They merely fix the burden of proof in 
 what is a C[uestion of fact, depending on the circumstances of each 
 case (r). Accordingly, in an action of damages by the grantee un- 
 der a gratuitous deed against the agent for both parties, on account 
 of his having refused to deliver it, where the defender pleaded he 
 had held it on behalf of the grantor to whom he had returned it ; 
 evidence ^;ro«i de jure having been led for tlio pursuer ; the jury 
 found that the deed had been deposited for his behoof, and that the 
 defender had wrongfully refused tlelivery (s). In another case, a 
 gratuitous bond by a person to his brother, deposited with the law- 
 agent for both parties, was held to have been delivered and irrevo- 
 cable ; evidence having been led which embraced payments by the 
 agent to the grantee in implement of the deed, and the understand- 
 ing of the granter and the agent that the deed was irrevocable (t). 
 Thus, also, where an assignation }>y a father to his daughter, re- 
 
 (n) Mair v. Thorns, 1850, 12 D., 748. Tlie deed had been yiven up improperly to 
 the lenders by the agent's heirs ; but that was licld not to aflect the (luestion. 
 
 (o) Tait, IGo— Supra, g 9G3. {p) Brownlee i\ Waddell, 1831, 10 S., 30. 
 
 (r) Maiklein v. JrOruthor, 1842, 4 D., 1182, per L. Just.-Clerk Hope— Tait Ev., It3r>. 
 
 (s) Maiklcm i\ M'Gruther, supra. (I) Ramsay v. Maide, 1828. C R., 343 ; 
 
 allVI., 4 W. S., 58. See Tumor's Crs. r. his Children, 1783. M.. 11.582.
 
 582 DELIVERY OF DEEDS. § 965- 
 
 serving his liferent, and containing a clause of warrandice from 
 fact and deed, but no power to revoke, had been deposited by him 
 ^^'itll a third party, in terms of a clause in the deed, " to remain dur- 
 ing the granter's lifetime, or wjiile he should have use for the bond 
 assigned, for security of his reserved liferent, and to be delivered 
 after his death to the daughter " for her own purposes ; the assig- 
 nation was sustained as a delivered deed in her favour, in competi- 
 tion with a subsequent deed of revocation by the granter (u). Here 
 the presumption, that the depositary held for the granter of the 
 deed, was overcome by the terms of the depositation, which in- 
 ferred delivery for behoof of the assignee. In like manner, where 
 an onerous disposition had been placed by the seller in the hands 
 of a conveyancer, in order that a charter might be prepared in fa- 
 vour of the purchaser, the disposition was held not to have been 
 dehvered, and locus penitentiae \i2i& allowed {x). The special pur- 
 pose of the depositation qualified its effect, and prevented it from 
 inferring delivery. 
 
 § 966. Proof ^row^ de jure is admissible to show whether a de- 
 positary holds for the granter or grantee {y). But parole was ex- 
 cluded where an assignation granted by one as factor for his father 
 in satisfaction of a debt, having been found in the son's custody, 
 was alleged to have been delivered to the assignee and then redeli- 
 vered by him to the -son as his agent {z). Here, however, as the 
 depositary had signed the deed, his possession was like that of the 
 granter ; and the case came within the rule that parole is not ad- 
 missible to prove that a deed in the hands of the granter has been 
 delivered (a). 
 
 § 967. When the granter of a deed in the hands of a depositary 
 alleged tliat it lay there for conditional delivery, the Court have re- 
 peatedly held that both the existence and the terms of the condition 
 might be proved by the depositary's oath ; quia deponendo apud eum 
 ejus fidem secuti sunt (b). Nor docs it seem that the competency of 
 the depositary's oath is limited to proving the terms of the condi- 
 
 (u) Sinclair v. Purves, 1707, M., 11,572. (a;) Byres v. Johnstone, 1626, M., 
 
 11,566. This case comes also under the rule noticed supra, § 961. 
 
 (y) See Collie v. Pirie's Tr., 1851, 13 D., 506 — Maiklem v. M'Gruther, 5;<;3m— Nor- 
 vel V. Ramsay, 1736, M., 12,290. (z) Fairlie v. Dick's Crs., 1666, M., 12,278. 
 
 (a) Supra, § 952. (i) Learmonth v. Alexander, 1624, M., 12,376— Hay v. 
 
 Wright, 1624, M., 12,378— Hay v. M'Michael, 1631, 1 B. Sup., 71— Guthrie v. Fentrie, 
 1649, ib., 393— Garden v. Pilmore, 1724, M., 3519— See also Cowan v. Ramsay, 1675, 
 M., 12,379— M'Ghie v. L. Tester, 1629, M., ib.— Douglas v. Lauder, 1631, M., 12,703— 
 Auld V. Smith, 1684, 2 B. Sup., 57.
 
 § 9Gt). DELIVKUY UF DEEDS. 583 
 
 tiui), where the existence of" a coiitlitiuii of some kind is pruved by 
 the writ or oath of the grantee ; altliough that view is supported hy 
 Lord Stair's opinion (c). But when a mutual deed is found in the 
 hands of a depositary, one of tlie parties may not prove l)y that 
 person's oath that it hiy w^itli liim for conditional deUvery; because 
 a mutual deed is effectual, although not delivered (cZ). The Court, 
 also, refused to admit the depositary's oath in contradiction of a 
 writing under his hand and that of the parties, containing the terms 
 of the depositation (e). 
 
 § 968. In general, witnesses (other than the depositary) are 
 ina(lmis.sil)le to prove that a depositation was made for conditional 
 delivery (/). But they were admitted in an action hy the granter 
 of a deed against the depositary for reparation of the damages sus- 
 tained by his having delivered it without the granter's authority, 
 and without the conditions on which delivery was to have been 
 made having been performed (g). 
 
 § 969. The decisions have not been uniform as to the mode of 
 proving that the depositary of a deed received from the granter 
 directions to cancel it. In one case, where the creditor in a bond 
 sued the granter for payment, the latter defended himself on the 
 ground that the deed had been executed by him as part of an ar- 
 rangement with his father, whereby he undertook to pay the debt 
 to which the bond applied, and which had originally been incurred 
 by his father; that with a view to this arrangement, his father and 
 he had signed, and placed in the hands of a notary, two blank 
 papers, in order that they might be filled up with a bond and dis- 
 position ; that before delivery he and his father liad resiled, and de- 
 sired the notary to cancel and destroy the documents ; but tliat, in- 
 stead of doing so, the notary had given them to the pursuer after 
 an interval of eight or nine years. The parties having differed as 
 to the mode of proving these averments, the Court, before answer, 
 ordained the notary and witnesses inserted to be examined ex officio; 
 and on their depositions proving the averments, the i^uestion of law 
 
 (c) Stair, 4, 42, 8. The law was so laid down in the first and second editions, but 
 altered in the later edition, of his Lordship's treatise under another head ; from which 
 it would seem that the views of that high autliority had undergone some modification 
 on the point; see More's ed. of Stair, 1, 13, 4. {d) Crawford v. Vallance, 1625, 
 
 M., 12,304— Stair, 1, 13, 4. But see contra, Drummond v. Campbell, 1G62, M., 12,309. 
 
 {e) Cowan v. Eamsay, 1675, M., 12,379— Stair, 1, 13, 4. (/) Stair, fupra- 
 
 Hay V. Wright, 1624, M., 12,379 -Crawford v. Vallance's Heirs, 1625, M., 12,304— 
 Kor t'. Home, 1611, M., 12,301, 2— Mallach v. Graham, 1673, 1 B. Sup., 681— But s, p 
 AuM V. Smith, 1684, 2 B. Sup.. 57— Collie v. Pirie's Tr., 1851, 13 D., 506. 
 
 {(j) Ker V. Home, 1611, M., 12,301— Stair. 1. 13, 4— See supra, § 965.
 
 584 DELIVERY OF DEEDS. § 969- 
 
 arose, wlictlicr the ilcpositation of writs could be proved any other 
 way than by the oath of the party in whose favour the writs were 
 conceived, he having the same in his hands. The Lords found, that 
 seeing these two writs were produced neither by the father nor by 
 the son, by and to whom they were respectively granted, but by a 
 third party in whose favour a clause therein was conceived, in that 
 case, the depositation was provable by the writer and witnesses 
 inserted ; and on considering their testimou}^ found the writs 
 null (Jt). Again, where the children of a deceased person claimed 
 from his eldest son and heir payment of provisions for which the 
 heir had been liable under a bond of provision by the father, and 
 bond of corroboration by himself, both of which deeds had been in 
 the hands of the father, but had been abstracted from his reposito- 
 ries ; in an action of proving the tenor of the l)onds, the heir having 
 alleged that the father, when on. deathbed, gave his wife warrant 
 to take and cancel the deeds, the Court allowed the averment to be 
 proved by the oaths of the wife and other witnesses (i). In another 
 case where a question arose as to the effect which cancelling a deed 
 had upon a similar deed executed in lieu of it, the cancelled deed 
 appeared with the subscriptions torn from two of the pages ; and 
 the only explanation given regarding its condition was by the 
 grantor's law-agent, who swore that the grantor handed it to him, 
 and desired him to cancel it and make out a new deed in terms 
 which had been previously arranged ; that he accordingly prepared 
 tlie new deed ; that on its being executed he cancelled the previous 
 deed by cutting off the signatures ; and that he did so in his own 
 office on his return from the grantor's house, but when the grantor 
 was not present. A great deal of discussion ensued as to the effect 
 of the cancelled deed ; but both the Court and the Bar treated the 
 cancellation by the agent as equivalent to tliat of the grantor, al- 
 though there was no proof that he acted by her orders, except bis 
 own statement and the inference arising from the circumstances 
 of the case (k). 
 
 {h) Dnimmond v. Campbell, 1562, M., 12,309. («) CWsholm v. Chisholm, 
 
 1673, M., 12,320. {k) Mure v. Mure, 1st June 1813, F. C. With this case 
 
 compare Cunningham v. Mowat's Tr., 1851, 13 D., 1376 (ex parte), where the agent of 
 a truster had deleted the subscriptions to a deed of instructions and marked it " can- 
 celled, superseded by new deed of instructions." In an action of proving the tenor of 
 the deed he swore that he had acted without the truster's orders, under a mistaken im- 
 pression that the first deed had been superseded by the second. The Court gave effect 
 to this statement, and holding the casus amissionis to be proved, they gave decree of 
 proving the tenor.
 
 §971. DKI.IVKKV OF DEEDS. oS') 
 
 § 970. These cases Y^roceed on the fuoting tliat the alleged or- 
 ders ))y the graiiter of a deed to some one to cancel it may be proved 
 protU de jure so as to infer revocation; and in the last mentioned 
 case it seems to have l>een assumed that the fact of a deed being 
 found in the hands of a depositary cancelled, witli his uath that he 
 canccllfd it by llic granters' orders, is sufficient to rL-nder it in- 
 elfectual. IJut in several cases tlie Court proceeded much mere 
 strictly as to thi' mode of proving the direction to cancel. 
 
 § 971. In an action at the instance of Sprinkel's natural daugh- 
 ter against his heir for 5000 nierks, contained in a bond granted by 
 the heir, tlie defender, on a reference to his oath, admitted that he 
 had granted a bond in favour of llic pursuer at tlio desire of Sprin- 
 kel ; but added that the deed had never l)een delivered, that it was 
 so far from being effectual that, by the express order of Sprinkel, he 
 was not to deliver it to the pursuer without Sprinkel's warrant ; and 
 that Sprinkel ordered him to destroy the bond on account of not be- 
 ing pleased with the pursuer's conduct, and left her a legacy instead 
 of it, which the pursuer had paid. The defender supported the 
 qualification in his oath by letters from Sprinkel to the same effect. 
 But the Court, by a plurality, decided that the qualification was 
 extrinsic to the reference ; and they accordingly found the pursuer 
 entitled to the sum (hic under the l)ond as a subsisting deed. An 
 attempt, which the defender made by suspension, to have the case 
 reconsidered, was frustrated on a point of form, although some of 
 the judges were of opinion that the reasons urged by him were 
 unanswerably relevant (/). Fountainhall observes, " that it was 
 thought the Lords went too far in this decision ; and Dirleton 
 seems to l)e of a contrary opinion" {ni). In another case, a daugh- 
 ter sued her mother for exhibition and delivery of a bond of provi- 
 sion granted by her father in her favour; and the mother, on a re- 
 ference to her oath, stated that the father deposited the deed with 
 her for delivery on condition of the daughter marrying with her 
 consent and behaving herself properly, that he put it absolutely in 
 the deponent's power to give the daughter such sum as she might 
 think fit ; and that, the daughter having made a run-away mar- 
 
 {l) Maxwell v. Maxwell, 1G75, M.. 12,322. In Carse v. Kennedy, 1714, M., 13.247, 
 a party being sued in an action of exhibition of his contract of marriage, deponed, on a 
 reference to his oatli. that it liad been granted by him in minority, without consent of 
 liis curators, and he had therefore cancelled it. The Court held that the qualification 
 was ( xtrinsic to the reference. (."0 In Forbes r. Ly. Culloden. 1712. M., 
 
 1:5.23(5.
 
 586 DELIVERY OF DEEDS. | 971- 
 
 riage, the depoueiit executed her hushaiurs will and commajid hy 
 burning the deed. The Court considered that the mother ought to 
 have preserved the bond entire, and should have stated what the 
 grantor's directions were when she was sued for exhibition of it. 
 By a plurality they held the cancelling to be unwarrantable ; and, 
 as the deed could not be restored, they found the mother liable in 
 damages ; loco fact i hnpy-estahilis succedit damnum et interesse {n). 
 Again, in an action for payment of a legacy alleged to have been 
 bequeathed under a will which had been deposited with the de- 
 fenders, but had been abstracted, and for exhibition of the deed, 
 one of the defender's deponed that the deceased, shortly before 
 death, placed the will in his hands, desiring him to do with it what 
 he pleased, and that, about the time of the death, he burnt it in 
 consequence of orders from the testator. The c^uestion being then 
 raised as to the effect of this qualified oath, the Court held that 
 there was sufficient evidence that the will had existed after the tes- 
 tator's death, and had been unwarrantably destroyed by the defender 
 referred to ; and they accordingly sustained the action for payment 
 of the legacy (o). 
 
 § 972. In accordance with these decisions was that pronounced 
 in a modern case, where two deeds of settlement and entail, con- 
 taining clauses dispensing with delivery, had been deposited with 
 the grantor's agent in a sealed packet bearing a docc[uet written by 
 the agent and signed by the granter, but not probative ; which 
 docquet directed that the deeds should be destroyed unopened in 
 case of the granter dying before a certain day. His death having 
 occurred 1 before that time, two actions were raised against the agent ; 
 one by the heir-at-law, concluding that he should produce the deeds 
 for cancellation ; and the other by the persons favoured by the 
 deeds, concluding to have the packet opened and the deeds re- 
 corded. The actions having been conjoined, the heir-at-law main- 
 tained that the docquet intercepted delivery, and that the terms of 
 depositation could be proved by the docc|uet and the depositary's 
 oath ; while the gi'anters pleaded that, as the deeds contained 
 clauses dispensing with delivery, the docc[uet was in effect a deed 
 of revocation, and being improbative, was ineffectual. The Court 
 adopted the latter view, and directed the deeds to be recorded ( p). 
 
 Again, in an action (r) against testamentary trustees for proving 
 
 (n) Forb<-.s v. Ly. CuUoden, 1712, M., 13,230. (o) Fisher v. Smith, 1771, 
 
 iM., '.t3fi0. (p) Logan v. Logans, 1823, 2 S., 253. (r) Falconer v. 
 
 Stephen, iS-JS. 1] I).. 220, 1338.
 
 § 972. di<;livi;i:v of deeds. 587 
 
 tlic tenor of a codicil t(j a tiu.st-decd, the deieiiders alleged that it 
 had been deposited with one of tlicir number (who had been the 
 truster's agent, and was a residuary legatee), and that it had been 
 destroyed by him after the truster's death, and in terms of the trus- 
 ter's directifnis, A proof of the casus amissionis was thereupon al- 
 lowed ; in which tlie depositary, when examined as a haver, swore 
 that he had burnt the deed ; but was not allowed to be cross-ex- 
 amined as to the truster's alleged directions ; such an examination 
 being considered foreign to a deposition as a haver. The case hav- 
 ing then been advised on the proof, the Court found the tenor of 
 the document to be proved, reserving all ol)jections to its effect, and 
 thus leaving it open to the parties interested to prove afterwards 
 that the grantcr of the deed ordered that it should be cancelled. 
 From the i)oint having occurred in an action which was raised only 
 for tlie purpose of procuring a judicial copy of the deed as it existed 
 before the act of cancellation, the question as to the mode of prov- 
 ing the order to cancel was not before the Court for decision. Some 
 of the judges, however, adverted to it. Lord Mackenzie observed, 
 " Suppose a man in his lifetime gives another a testamentar}- docu- 
 ment to destroy, and it is accordingly destroyed, then the benefi- 
 ciary comes forward and denies the authority to destroy it. That 
 is a very good plea ; but would the oiucs not lie on him to prove so 
 very special a cassis amissionis, as that the deed was tortuously de- 
 stroyed ? " His Lordship accordingly reserved his opinion on the 
 question of proving the direction to cancel. The Lord President 
 (Boyle) said, " my opinion is that it was the duty of Mr Da\adson 
 (the depositary) to have preserved the deed. If he did not fulfill 
 his instructions during the lifetime of the truster, he had no right 
 to do it at all," Lord Fullerton entered at some lengtli into the 
 competency of sustaining a cancellation, merely on the oath of the 
 depositary, that he had been directed to cancel. His Lordship ob- 
 served, that the ordinary presumption in the case of testamentary 
 deeds is, that they are in the hands of the depositary for behoof of 
 the testator, and, consequently, of the parties favoured by them ; 
 " And the plea of the defenders really comes to this, that a party 
 having the custody of such a deed extant at the death of the testa- 
 tor, can discharge himself of the consequence of destroying it by 
 the simple statement that it was put into his hands not to be kept, 
 but to be destroyed ; and that his admission of the destruction of 
 the deed cannot be separated from the qualification tacked to it, 
 that it was put into his hands for that purpose. I should hesitate 
 to admit an}' such plea ; which would, in truth, place at the mercj*
 
 588 DELIVERY OF DEEDS. § 972- 
 
 i»f tlie enstoi,liLr any testamentaiT deed witli wliicli he might happen 
 to he entrusted. I think, on the contrary, tliat, from the moment 
 of the testator's death, and the suhseqnent vesting of all the rights 
 created by his testamentary writings, the custodier had no warrant 
 to destroy the deed at his own discretion. Viewed as a question of 
 mandate, the mandate fell at the death of the mandant." His Lord- 
 sliip added that, notwithstanding the action then before the Court, 
 it would." be quite competent for the defenders to prove, if they 
 can, that the deed was put into the hands of Mr Davidson for the 
 purpose of being destroyed ; and that he still is entitled and bound 
 to destroy it." ^ 
 
 § 973. From these cases, then, it appears that a deed of a testa- 
 mentary nature will not be held as revoked merely on the deposi- 
 tary's oath that it was placed in his hands with directions to cancel 
 it ; and that his having in point of fact cancelled the deed does not 
 alter the legal position of the parties maintaining its sul)sistence. 
 Whether the same rule applies to a deed requiring delivery does 
 not appear. It would perhaps be held that the omis prohandi is re- 
 versed in. such a case ; because the party founding on the deed as 
 delivered to him through the depositary would have to prove that 
 fact, whereas the effect of testamentary deeds, deeds dispensing 
 wdth delivery, and, in general, bonds of provision, does not depend 
 on any such inquiry. 
 
 § 974. The grantor's orders to cancel may not be proved by 
 witnesses deponing merely to his verbal directions ; such evidence 
 being inadmissible to modify or cut down a formal writing. But it 
 is thought that they may be inferred (like revocation in any other 
 way) from the real evidence of the granter's conduct, and from other 
 facts and circumstances, which cannot reasonably bear a different 
 construction (s). 
 
 VI. Presumption and Proof as to Delivery of Deed taken in name 
 of a tliird person. 
 
 § 975. Where a party entitled to take a right or obligation in 
 his own name substitutes that of another person, there is some dif- 
 ficulty in determining how far delivery is required to make the 
 
 (s) See supra, \ 161. et seq., § 624, et seq. 
 
 2 See Winchester v. Siiiitli, 18C?., 1 Macph., 685.
 
 § 1>76. DKMVKKY OF DKEDS. 589 
 
 right eUcctuul, and wlmt coiitn^l the itaity by wliom the (leeil has 
 been so taken retains over it. 
 
 § 970. If the deed has been followed by delivery to the third 
 person, or })y publication, it is effectual and irrevocable as ay^^s• 
 quaesituvi tertio. Thus where a person, buying heritable property, 
 took the disposition in favour of himself and his ^v^fe in liferent, 
 and his daughter in foe, and sasine followed in favour of them all, 
 the daughter's right was held to bo complete and irrevocable (/). 
 Where a party, in right of certain teinds, granted bond to his au- 
 thors, agreeing {inter alia) to exact only a limited sum from a cer- 
 tain heritor, and tlie bond was registered, the obligation was held 
 to be efl'ectual to tlie person favoured ]iy it, notwithstanding a dis- 
 charge from tliose by wliom the bond had been taken (u). So an 
 assignation taken by a person in name of his daughter, having been 
 followed by intimation, and by her executors making up a title to 
 it by confirmation, was held not to have been extinguished by a 
 discharge executed by the father (x). And a deed of entail by a 
 person in favour of himself in liferent and his son as fiar, "with cer- 
 tain substitutes, having been followed by registration and feudal 
 investiture, was found to be valid in favour of the substituted heirs, 
 whose rights were held not to be affected by a renunciation granted 
 by the entailer and the institute (y). 
 
 On the same principle, where a father in selling land took the 
 purchaser bound to grant bond for the price to himself in liferent 
 and to his sons in fee ; and where he caused the sons to sign a post- 
 script agreeing not to call up the money for some years ; but no 
 bond was delivered on the one hand, or disposition on the other ; — 
 the Court held that the fee was vested absolutely in the sons, in 
 consequence of the father having made them parties to the transac- 
 tion (z). 
 
 § 976*. But if a person takes a right in name of another, and 
 retains possession of the deed, instead of making it public or deli- 
 vering it to the grantee, he reserves control over it, and may cancel 
 it, or take a new right in name of himself or of another person, as 
 he chooses. The right of the grantee in such a case corresponds to 
 a right under a mortis causa deed, granted by the person who took 
 
 {t) M'lutosli V. M'lutosli, 28tli January 1812, F. C. (m) Kenton v. Ly. 
 
 Aiton, 1634, M., 7721 ; 1 B. Sup., 352, S. C. (x) Trotters f. Lunday, 1667, 
 
 M., 11,498. "With this case compare Cockburn i'. L. Craigievar, infra, (/). 
 
 (y) Gordon v. Macculloch, 1771, M., IT), 579. (z) Spence v. Ross, 1826. 5 
 
 S., 17.
 
 590 DELIVERY OF DEEDS. § 976- 
 
 tlie rii>ht in tiucstioii in his name. The law is so laid down by the 
 Court in an old case already cited (a), and by Lord Meadowbank 
 {primus) in the modern case of M'Intosh v. M'Intosh {h). On this 
 principle, also, where a person lending money, took the bond pay- 
 able to his son David, whom failing to his own heirs, but kept the 
 document in his hands Avithout delivery to his son ; George, who 
 was David's younger brother and executor, was held not to have 
 action against the father for the sum in the bond, the Court consi- 
 dering it to be within the father's control (c). Thus, also, where 
 a father on conveying certain property to his eldest son, took from 
 him bonds of provision in favour of the younger children, the fa- 
 ther's cancelling of these was held to have extinguished them {d). 
 And on reporting a case on this subject, Lord Karnes has observed, 
 " When a man lends a sum in name of a child in familia, delivery 
 of the bond to the father, has not naturally any other signification 
 than that the bond, which comes in place of the money, is to be 
 under his power, as the money formerly was" (e).^ 
 
 § 977. The Court have sometimes regarded a deed taken by a 
 person in a third party's name, but retained by him without deli- 
 very, in the light of a trust, holding that the name interposed had 
 merely been borrowed by the real party, without his intending to 
 impair his own right. This was held in regard to an assignation 
 which a person took in name of a third party, and intimated to the 
 debtor, but not to the nominal assignee (/). The intimation to the 
 debtor, although necessary for completing the right of the party 
 entitled to the debt, whoever that might ultimately be, was held 
 not to foreclose the real assignee from maintaining his latent right. 
 And where a person purchasing heritage took the disposition in 
 name of a third party, but retained possession of it, the Court held 
 
 (a) Trotters v. Lundy, supra. {b) M'Intosh v. M'Intosh, stipra. 
 
 (c) Hill V. Hill, 1755, M., 11,580. [d) Ross v. Bain, 1717, M., 11,505. The 
 
 contrary decision of Hamilton v. Hanailton, 1741, M., 4137; 11,576; Elch., " Provision " 
 to hfurs, No. 5 ; S. C, is thou^lit to be erroneous. See also, contra, Sinclair v. Sinclair, 
 1G82, 2'b. Sup'., 20. {e) HiU v. Hill, 1755, M., 11,580. 
 
 (/) Cockburn v. L. Craigievar, 1672, M., 11,493. The distinction between this case 
 and Trotters v. Lundy, snpra, § 975 (z), is very narrow. 
 
 3 When a receipt for money advanced bore that the money was to be placed to the 
 account of the trustees of the wife of the person who advanced the money, but where, 
 in fact, it was placed to the credit of that person himself, with his knowledge, and 
 without objection by him, the trustees of his wife wore held to have no title to the 
 money; Drysdale v. Ritchie, May 1863. 1 Macphcrson.
 
 § 07!». UKI.IVKIiV OF DKKDS. JUl 
 
 that it was witliiii hi.s c(jutrol as I lie icul proprietor, and coiiM 
 therefore be disposed of under liis deed of settlement {(j). 
 
 § 978. But wliere a deed of conveyanee or oldigation is (h'awn 
 in name of a creditor of the person entitled to take it in his own 
 name, it is cfFectual in favour of tlie creditor, although IviiiLr in the 
 debtor's hands iindclivered (h). This rule corresponds t(j that 
 above noticed, whereby a deed which a person is under an obliga- 
 tion to grant is elfectual to the grantee without delivery (/). 
 
 § 1)7!). When a deed taken in name of a third person is placed 
 in the hands of a dept)sitary, the (question, whether it is held for 
 the grantee or for the person by whom the depositation was made, 
 depends on the circumstances and the evidence in each case. Ac- 
 cordingly, where a note for money advanced by A, taken in name 
 of " B, son of A, for behoof of his (B's) children," had been deposit- 
 ed by A with a friend, who held it at the time of A's death ; and 
 who declared that for several years A had been in the habit of de- 
 positing promissory-notes with him for safe keeping, that he consi- 
 dered himself bound to re-deliver them whenever A chose to call 
 for them, and that he had repeatedly given them t(j A on his de- 
 mand, and had received ncw^ notes in their place ; — in an action by 
 the widow and other children of A against B, it was held that the 
 note had been deposited for lichoof of A, who might have destroyed 
 it at any time during his life, and therefore that his allowing it to 
 remain in the dcpositar3''s hands unrccalled and undelivered, showed 
 it to be a testamentary bec[uest, wdiich could not affect the Jus ye- 
 liciae or legitim (Jc). Thus, also, where a party lending money, 
 took the bond payable to trustees for behoof of his grandchild, and 
 deposited it with one of the trustees, the Court allowed a proof be- 
 fore answer on all facts relevant to the preparation and delivery of 
 the deed ; and on considering the proof, found that the deed was 
 delivered and irrevocable in favour of the grandchild (/). In an- 
 other case, wdiere a bond for the ])rice of land had been taken pay- 
 able to the seller in liferent, and to his children nomiiiatim in fee, 
 
 {g) Balvaird u. Latimer, 5th Dec. 1816, F. C. {h) Nimmo, 1(J'27, M., 7740— 
 
 Ly. Pltmeaden v. Gordon, 1707, M., 7727— Bayne v. M'Millau, 1077, M., ll,4'J5-Car- 
 michael v. AVilsou, 1714, M., 7741— Goldie r. Aitken, 1729, M., 7742— Ot;ilvic v. Ker. 
 1GG4, M., TiAO— Contra, Ilissleside v. Littlcgill, 1685, M., 11.406, where a debtor having 
 granted assignation to his creditor, and cansod it to be intimated, but retaining tlie as- 
 signation and instrument of intimation, was held not to have been divested until deli- 
 very of the assignation to the creditor. But this was " not without senii>le.' 
 
 (i) Supra, § 943. {k) IMih-oy i-. Milroy, 1803. Hume D., 285. See some 
 
 analogous cases, supra. ? 36li. (/) Collie v. Pirie's Tr., 1851. 18 D., 506. 
 
 VOL. 1. 2 P
 
 D'.'-J 
 
 DELIVERY OF DEEDS. § 979- 
 
 and had been delivered by the purchasers' agent to the person who 
 had ac-ted professionally for the seller in the transaction, the Court 
 held that it had been delivered in favour of the children, and that 
 it did nut fall to their father's creditors (w). But it may be doubted 
 whether the depositation with the agent for a fatlier ought to be 
 considered as delivery for behoof of the children, unless it were 
 proved to have been so intended. 
 
 § 980. Another rule in this class of cases seems to be, that 
 Avhen one of the parties in a bilateral contract agrees to a certain 
 obligation in favour of a third person, there is a jus quaesifum in 
 that person upon the execution of tlie contract, without delivery to 
 him or any one on his behalf (n). Thus in a contract of excambion 
 a clause oldiging one of the parties not to remove tenants from the 
 ground acquired b}^ him, was sustained in favour of the tenants, al- 
 though they had not been parties to the deed, and it had not been 
 delivered to any of them (o). Again, in a marriage-contract, where 
 the wife was provided in a certain annuity, a small yearly sum 
 payable out of it to the stepmother of the husband was held on the 
 wdfe's survivance to be an effectual burden on her jointure (p). 
 But wdiere a marriage-contract made certain provisions in favour of 
 the wife's children by a former marriage, these w^ere held to be re- 
 vocable at the will of the spouses jointly (r). 
 
 It must be added that there is considerable conflict in the deci- 
 sions as io jura quaesita tertiis. One learned judge says it is " per- 
 haps an impossible task" to reconcile them (s). 
 
 VII. Fresumpiion and proof as to date of Delivery of Deed. 
 
 I 981. In general, the delivery of a deed found in the hands of 
 the grantee, or of a person for his behoof, is presumed to have been 
 made at the date of the deed {f). Thus an assignation in favour 
 of the grantor's married daughter, dated (but not intimated) during 
 her marriage, having been found in her hands after the dissolution 
 of the marriage, was presumed to have been delivered during its 
 
 « 
 
 {m) Turner's Crs. v. bis Childron, 1783, M., 11,582. (n) Stair, 1, 10, 5. 
 
 This is analogous to the rule tliat bilateral contracts are effectual to the parties without 
 delivery. Supra, § 944. (o) W'ood v. Honour, 1591, M., 7719. 
 
 {p) AVarnock v. Murdoch, 1759, M., 7780; questioned in More's Notes, 62. 
 
 (r) Tait v. Pollock, 1738, M., 7728. (s) Per L. Ivory (Ordinary) in Collie v. 
 
 Piiie'B Tr., 1851, 13 D., 500. {t) Stair, 1. 6. G (4); and 1, 7, 14 (8)— Ersk., 8, 
 
 2. 43— Bell's Prin.. ? 28— Tait. 171.
 
 § i>88. DELIVKKV OK DEEJJS. 593 
 
 sul^sisteiice, and, tliorcf'oro, to liavu lallt'ii luidcr lior lius])and's jhh 
 tncu'iti (u). And bonds of i)rovision by a brother in favour of his 
 sisters, in corroboration and satisfaction of previous bonds granted 
 by their father, and of their riglits of lefjifiin, liaving l)een deH- 
 vered to their mother on their behalf, were presumed delivered of 
 their respective dates, in a question with a subsequent heir of en- 
 tail (x). 
 
 § 982. This presumption yields to contrary inferences and proof. 
 It does not apply to bonds of provision or other deeds by a fathei- 
 to his children, wlien competing with debts by the granter; so that 
 the former, although earlier in date, wall not be sustained, unless 
 they be i)roved to have been the first delivered (?/). Were it not 
 so, creditors might suffer from latent deeds retained by their debtor 
 ^^^th the power of revocation. Tliis rule was applied where a party 
 founding on bonds of provision raised a claim against the Crown as 
 in right of the granter's forfeited estate (z) ; and where children 
 comi)eted on bonds of provision with creditors whose debts were 
 later in date (a). So a younger son, grantee in an heritable bond 
 executed by his father under a faculty reserved in disponing the 
 lands in his eldest son's marriage-contract, was required to prove 
 that the bond was delivered before a discharge of the faculty, 
 wliieli liod been granted by the father in favour of the eldest son (&). 
 Thus, also, one holding a disposition from his father was required 
 to prove delivery, prior to the contraction of debts to his father's 
 creditors, on which they had led adjudications after the son had 
 taken infeftment (c). 
 
 It may, however, be proved by parole that bonds of provision 
 were delivered before the father's debts were contracted (d). 
 
 CHAPTER X. — OF THE ACCEPTANCE OF DEEDS. 
 
 I| § 983. As delivery is necessary lV>r making a deed effectual 
 
 against the granter, so the grantee is not bound by the obligations 
 
 (m) Scott V. Dickson, 1663, M., 5799. (z) Gordon v. Maitland, 1757, M.. 
 
 11,165, and 5 B. Sup., 431 ; affirmed as Forbes i-. Gordon. 1760, 2 Pat. Ap. Ca., 43. 
 
 {!/) Stair, 1, 5, 6 (4); and 1, 7, 14 (8)— Tait, 171. (z) Fraser v. L. Advocate, 
 
 1754, M., 17,008. (a) Inglis v. Boawcll, 1076, M.. 11.567. 
 
 {b) Chiesly v. Cliiesly, 1701, M., 11,571. (c) Simpson v. Finlay, 1697, M., 
 
 11..^70. i'i) Stair. si/;<ra— Inglis v. Boswcll. 1070. M., ll.r.67. 
 
 2 I' 2
 
 5t>4 , ACCEPTANCE OF DEEDS. § 983- 
 
 uith which the right is biirJenod, Tiiiless lie has accepted the deed 
 ntm omni onere {e). This is the case whetlier the burdens are em- 
 bodied ill the deed, as the obligations on the vassal under a feu- 
 charter, — or are inherent in the right conveyed, as the liabilities 
 efFeiring to shares of joint-stock companies. 
 
 § 984. Acceptance may be cither expressed by the grantee in 
 a WTitten or verbal declaration, or it may be exhibited by his acts, 
 such as recording or taking infeftment on the deed, or otherwise 
 using it as his own (/). One who was present at a general meeting 
 of creditors, at which a trust-deed offered by the debtor was agreed 
 to, was understood to have acquiesced in the resolution of the meet- 
 ing, and to be tied dowai to acceptance of the deed; because, although 
 he had not actually approved of it, he had not declared against it {g). 
 But the grantee's merely receiving the deed ought not to infer ac- 
 ceptance ; because, where the grantor does not tie him down to ac- 
 ceptance, it may be presumed that he left him to deliberate whether 
 he would accept or not {h). Yet acceptance may arise from the 
 grantee wittingly retaining the deed for a length of time without 
 repudiating it ; the period varying with the nature of the deed and 
 the circumstances of the case (/). 
 
 § 985. Express acceptance may be proved by tlie grantee's writ 
 or oath. ]\[r Tait (/t) thinks that, being a nuda emissio verhorum, 
 it ma}^ not in general be proved by witnesses. But there is no de- 
 cision on tlic point ; and the objection to parole seems to go to the 
 credibility of the evidence rather than to its competency. Where 
 the acceptance is implied from the grantee's acts, these may be in- 
 structed ^row^ dejure (I), unless in their nature they require written 
 proof, as infeftment, registration, and the like. 
 
 § 986. Acceptance is only requisite for making the deed effec- 
 tual against the grantee. The grantor is bound by delivery, al- 
 though made without the grantee's knowledge or consent (m). Yet 
 if a person to whom a deed has been transmitted, as on behalf of 
 the gTantee, has refused to receive delivery for him, and the granter 
 has not delivered the deed to another person in his stead, the deed 
 will be held as undelivered (n). 
 
 The rules as to the constitution of contracts by oflPcr and ac- 
 ceptance are noticed above (o). 
 
 (e) Ersk., 3, 2, 45— Tait Ev., 172. (/) Ersk., supra— Tait, supra. 
 
 (g) Case mentioned (but without the parties' names) by Ersk., supra — See also Lea 
 V. Longdale, 1828, 6 S., 350. (A) Ersk., supra. {i) Tait, supra. 
 
 (^k) Tait, supra. (Z) Ersk., ««^j>7-a— Tait, supra. (m) Stair, 1, 10, 5 — 
 
 BorthAvick v. Lawrie, 1686, M.. 7735. (n) Ghuaiiining v. Wyllio, 1634, M., 
 
 16/^02, uot<;d suj^ra, \ 947. (o) Supra, H 546, 566.
 
 § •)81). STAMPS. 51)5 
 
 CHAr'I'EK XI. — UF STAMl'S 'J'o I'KIVATE WIU'J'INGS. 
 
 § 'J87. Engrafted on the law regarding the uutlientieity of 
 deeds are the statutory rules which require that the material en 
 which certain deeds and instruments are written shall hear an ap- 
 projiriate government stamp. The statutes on this suhject are 
 very numerous (a) ; and are continually fluctuating with the exi- 
 gencies of the public ser\'ice. In the following sections they will l»e 
 noticed only in their immediate hearing upon the law of evidence. 
 
 § 988. The stamps required for private writings are chiefly re- 
 gulated hy the act 55 Geo. Ill, c. 184, with the modifications in- 
 troduced by the acts 13 and 14 Vict, c. 97 ; 16 and 17 Vict., c. 59; 
 IG and 17 Vict., c. 63 ; and 17 and 18 Vict., c. 83. The schedules 
 annexed to these statutes must be referred to for their details. 
 Those! appended to all the stamp acts are digested in a useful 
 " Table of the whole Stamp Duties exigible in Sc(jtland" (6).^ 
 
 § 989. The stamp is usually impressed upon the paper on which 
 the deed is written. But stamps for receipts (c), policies of assur- 
 ance (d), and drafts or orders for payment of money to the bearer 
 or to order on demand (e), may also be impressed on adhesive 
 stamps affixed to the document ; such stamps rc(iuiring to be can- 
 celled by the signature or initials of the person who makes or gives 
 the document (f).^ The duties upon foreign ^ bills negotiated in 
 
 (a) There are about three hundi-ed stamp acts, and the most of these have been 
 jiartly repealed and modified or re-enacted. The consequence is, that the stamp laws 
 are involved in extreme, and in some respects almost inextricable, confusion. 
 
 (6) Third edition, ann. 1853, with a continuation, ann. 1854. containing 17 and 18 
 Vict., c. 83, published by Wm. Blackwood and Sons of Edinlnirgh. (e) 16 and 
 
 17 Vict., c. 59, § 3. (rf) 16 and 17 Vict., c. 63, ? 10. (<•) 16 and 17 
 
 Vict., c. 59, ?^ 3. 4. (/) 16 and 17 Vict., c. 59, § 4— lb., c. 63. § 11. 
 
 ' The principal subsequent statutes on stamps are 19 and 20 Vict., c. 81 ; 21 and '22 
 Vict., c. 20; 23 and 24 Vict., e. 15; 23 and 24 Vict., c. Ill; and 24 and 25 Vict., c. 91. 
 See Muir's Stamp and Tax Office Manual, 1861. 
 
 2 The following documents, besides those mentioned in the text, may he stamped by 
 adhesive stamiis :— Tacks and Transfers under the Dwelling Houses Act (18 and 19 
 Vict., c. 88, § 21); Extracts from Registers of Births, &c. ; Delivery Orders relative to 
 Goods in Bond (23 and 24 Vict., c. 15, § 8); Contract Notes for the Sale of Government 
 Stock, or of Stock of Joint-Stock Cos. (23 and 24 Vict., c. 111. g 7) ; certain Policies of 
 Insurance for small sums, and certain Drafts on Bankers (23 and 24 Vict., c. 111. gg 9. 
 17, 18); Leases of Furnished Houses for a shorter period than a year (24 and 25 Vict., 
 c. 21, § 14) ; Proxies to ho used in voting at meetings of Joint -Stock Cos., of Heritors 
 in Parocliial Matters, and of Charitable Institutions (19 and 20 Vict., c. 81, g 1 : 24 and 
 25 Vict., c. 91. § 27). As to cancelling adhesive stamps, see 24 and 25 Vict., c. 91, jj 33. 
 
 3 Or foreign drafts or orders; 2'^ and 24 Vict., c 15. ? 13— or foreign promissory- 
 notes; 23 ami 24 Vict., c. 111. ? 5.
 
 y9G STAMPS. § 989- 
 
 tliis country arc only l^'vicd by means of adhesive stamps ; and the 
 person -who negotiates the bill must cancel the stamp by writing 
 upon it his name or the name of his firm, with the date when he 
 does so ((/).•* 
 
 § 990. Bankers in Scotland, instead of using stamps for their 
 promissory-notes payable to the bearer on demand, or their bills of 
 exchange, iMdj compound and agree with the Treasury for a com- 
 position in lieu of such stamps ; and upon their doing so it is " law- 
 ful for them to issue and re-issue all notes, and to draw all such 
 bills, for which such composition shall have been made, on un- 
 stamped paper" (Ji).^ 
 
 In order to facilitate the transfer of bonds and mortgages given 
 by public companies under Acts of Parliament authorising them to 
 borrow money, it is enacted, that if, on the original making and 
 issuing of such deeds, and before any transfer of them, they shall 
 be stamped with a duty equal to three times the ad valorem duty 
 chargeable on them by law, and over and above the said ad valorem 
 duty, then every transfer or assignment thereafter made by indorse- 
 ment thereon shall be exempt from the stamp-duty, to which it 
 Avould otherwise have been subject (i).^ 
 
 § 991. Tf the stamp which a document bears is not apidicable 
 to the kind of deed, but is sufficient in amount, it is effectual " ex- 
 cept in cases where the stamp" "shall have been specially appro- 
 priated to any other instrument, by having its name on the face 
 thereof" (k). Adhesive stamps for receipts, and for orders or drafts 
 of money payable to the bearer on demand, may " be used for the 
 purpose of denoting the like amount of duty, either on a receipt or 
 on such draft or order as aforesaid, without regard to the special 
 appropriation thereof for the other of such instruments, by having 
 its name on the face thereof" (1)^ Bills of exchange which have 
 
 iff) 17 and 18 Vict., c. 83, ? 3, 5— See infra, ? 1002. (h) 16 and 17 Vict., 
 
 c. 63, 2 7. (0 16 and 17 Vict., c. 59, § 14. {k) 55 Geo. Ill, c. 184, § 10. 
 
 (/) 17 and 18 Vict., c. 83, g 10. 
 
 * See 28 and 24 Vict., c. 15, § 12. 
 
 5 All drafts or orders for payment to the bearer on demand, drawn on a banker 
 transacting business as such witliin fifteen miles of the place where such drafts or 
 orders are issued, are chargeable with the stamp-duty of Id. for each such draft or order; 
 21 and 22 Vict., c. 20, § 1. Previously such drafts or orders did not require a stamp. 
 
 6 24 and 25 Vict., c. 50. 
 
 7 It was held that a document in the following terms, — " Received from A B the 
 ?iim <if £11, payable on demand," was a promissory-note, and required to be stamped as
 
 § 91)2. STAMPS. 597 
 
 Jtecn written on .stamps of u wrong- (knoniinatioii may have the 
 proper stamj) affixed to them afterwards on payment of a penal- 
 ty (m). Of course, a stamp of the proper denomination, ])ut bearing 
 a krger (hity than tlie doeument rcrpiires, is elfectual («). 
 
 A deed upon a stamp of inade(juate amount is equally inadmis- 
 sible in evidence as one which is unstamped (o). 
 
 § 01)2. Uuj)licates and counter])arts of deeds for which a stamp- 
 duty of five shillings and upwards (with ijrogressive duty) is re- 
 quired may he stamped with a duty of live shillings for the first 
 sheet of 2100 words, and a progressive duty of two shillings and 
 sixpence for every 1080 words over and above the first 1080. But 
 the duplicate or counterpart is not available, except in the case of 
 leases, unless it be stamped with a particular stamp testifying the 
 payment of the proper stamp-duty on the original deed or instru- 
 ment ; which particular stamp must be impressed on the duplicate 
 or counter-part, on the same being produced for that purpose to 
 the Commissioners of Inland Ee venue, together with the original 
 deed or instrument, " and on the wdiole being duly executed and 
 duly stamped in all other respects " (p). " The counterpart of any 
 lease of lands, tenements, or hereditaments, being duly stamped 
 with the said stamp-duty of five shillings, or any higher stamp-duty 
 (exclusive of progressive duty) and not being executed or signed 
 by, or on the behalf of any lessor or grantor, shall be available as a 
 counterpart, without being stamped with a i)articular stamp for de- 
 noting or testifying the payment of the stamp-duty chargeable on 
 the original lease" (r). 
 
 (w) 37 Geo. Ill, 136, U 5, 6. (ti) 65 Geo. Ill, c. 184, § 10— Bowack, 1804, 
 
 M., " Bill of Exchange," Appx., No. 15. (o) Robertson v. Ettle.s, 1834, 7 W. S., 
 
 17G. (p) 13 and 14 Vict., c. 97, Sch. voce DuplicatL-. (r) 16 and 17 
 
 Vict., c. 59, § I'i. 
 
 such, and that it could not be stamped witli a penny receipt-stamp ; M'Cubbin v. 
 Stephens, 185(3, 18 D., 1224. But mere acknowledgments of debt do not require a 
 .'<tamp; Hamilton's Executors y. Struthers, 1858, 21 D., 51. And where a document 
 acknowledged debt and contained a promise to pay, but not on a day certain, or at sight, 
 or on demand. Lord Ardmillan hold that it did not require to be stamped ; Brand v. 
 Linton, 1858, 20 D., 728. It was held that a document to the following effect, written 
 and signed by a bank agent, was a letter of credit, and required a stamp : — " Edin. and 
 Glasgoio Bank, Cupar Angus, 15/A Sept. 1856. — " Be so good as pay the orders of Mr 
 Macgregor on me, which will be paid on presentation here. The sum to be confined to 
 £1000, and to be paid within one fortniglit from this date." The document was not 
 addressed to any one, and tlie Lord Justice-Clerk (Hope), for that reason, dissented, 
 and thought the document did not fall within the stamp acts; Waterston >'. The Edin- 
 burgli and Glasgow Bank. 1S58. 20 P.. 642.
 
 59S STAMPS. § 993- 
 
 § 993. Important provisions were introdnccJ in a recent stump 
 act, which enable any one, on paying a fee of ten shillings to the 
 Commissioners of Inland Revenue, to obtain their opinion what 
 stamp a deed requires; and upon payment of the stamp-duty which 
 the Commissioners may determine, or, if the deed bears an insuffi- 
 cient stamp, on payment of the difference between that stamp and 
 the stamp which the deed ought to bear, and on payment of the 
 penalty, if any, payable on stamping, or if the full stamp-duty has 
 been previously paid or denoted upon the deed, then the Commis- 
 sioners shall impress upon the deed a particular stamp, which shall 
 be deemed to signify and denote that the full stamp-duty chargeable 
 on the deed has been paid ; and every deed or instrument so im- 
 pressed shall be deemed to be duly stamped, and shall be receivable 
 in evidence in all courts of law or equity, notwithstanding any ob- 
 jection made to it as being insufficiently stamped. But such stamp 
 may not be impressed upon any deed or instrument chargeable with 
 ad valorem duty under the head of bond or mortgage in the sche- 
 dule to the act, where the same is made as a security for the pay- 
 ment, or transfer, or re-transfer of money or stock, wdthout any limit 
 as to the amount thereof. And the act does not authorise the 
 Commissioners to stamp with the particular stamp referred to any 
 probate of a will or letters of administration, or to stamp therewith 
 any deed or instrument after subscription in any case in which the 
 stamping thereof is expressly prohibited (s). 
 
 § 994. If a deed or instrument presented to the Commissioners of 
 Inland Revenue under this powder, is in their opinion not chargeable 
 witli any stamp-duty, they are required to impress upon it a parti- 
 cular stamp, signifying that it is not chargeable, and the deed or 
 instrument so impressed may be received as evidence, notwithstand- 
 ing any objection that it is subject to stamp-duty (t). 
 
 § 995. If the party who presents the deed to the Commis- 
 sioners is dissatisfied with their determination in either of the cases 
 mentioned in the two preceding sections, he may appeal to the 
 Court of Exchequer at Westminster, whose decision on the point is 
 final (u). 
 
 (s) 13 and 14 Vict., c. 97, § 14. (t) 16 and 17 Vict., c. 59, § 13. 
 
 (m) 13 and 14 Vict., c. 97, § 15— IG and 17 Vict., c. 59, g 13. The latter act pro- 
 vides that the appeal bo taken to " Her Majesty's Court of Exchequer on the terms and 
 in the manner provided " by tlie act of 13 and 14 Vict., c. 97 ; in which the appeal is 
 limited to the Court of Exchequer at Westminster. 8 
 
 « By 19 and 20 Met., c. 56, the Courl, of Session is constituted llio Court of Ex- 
 tlicqucr in Scnthind.
 
 § 91)7. STAMi's. 599 
 
 § !)I)G. As tu the iiiiiubcr of btunips roqiiiieJ fur a deed, the rule 
 is, that if tlio suhject-mattcr of the deed is truly single, only one 
 stamp is necessary, although there may be many persons interested 
 in diverse ways under it (x). This is the case in composition- 
 contracts with creditors, and trust-conveyances by creditors in order 
 to do ((1111111(111 diligence with a view to saving expense (y). So a 
 b(,)nd granteil by tiiree persons, ol)liging themselves jointly and se- 
 verally to pay the del)ts due to certain creditors (who were six in 
 iiuiubcr) of a debtor against wIkuu diligence had been executed, 
 Avas sustained, although it only bore one stamp corres})onding to 
 the aggregate sum in the bond (2). Thus, also, in an English case, 
 a single stamp Avas lie Id to be sufficient for a bond by six persons, 
 obliging themselves severally in a penalty on contravention by all 
 and each of them of certain conditions (a). And a bond containing 
 a personal obligation by a husband, with a disposition by his wife of 
 certain heritable property in security of it, was held to re(|uire only 
 a stamp api)licable to an heritable bond (b). 
 
 § 997. But where a deed embraces sej^arate transactions, to 
 each of which a stamp is applicable, it must bear a corresponding 
 number or amount of stamps, whether the parties interested in the 
 transaction be the same or different (c). This has been held as to 
 an instrument of protest which iiududed several bills 1)etween the 
 same parties (d), an instrument of sasine embracing infeftment on 
 three several charters (e), and a deed of admission (in England) of 
 five burgesses (/). The (juestion was once raised, whether a con- 
 ve3'ance to one person in liferent and to another in fee, bearing an 
 ad valorem stamp applicable only to the right of the tiar, was ade- 
 quately stamped ((/). And in a case where Yeaman conveyed herit- 
 able property to Wilkic, under burden of an annuity to Yeaman 
 during his life, and after his death to his widow, and the deed bore 
 the stamp required for a conveyance, but not also that appropriate 
 to a grant of annuity, the Lord Ordinary (Cuninghame) held that 
 
 (x) 1 Bell's Com., 322— Tait on Ev., 152— Cliitty on Stamps, 142—1 Phil. Ev., 508. 
 
 (y) Bell's Com., supra. (z) Johnston and Co. v. Atliwell. 1801, M., "Writ," 
 
 App., No. 5. (n) Bowan v. Ashley, 1805, 1 Bos. and Pull., New R., 274— See 
 
 also Davis c. W' illiams, 1811, 13 East, 232. (6) Brown v. Bedwell, 1830, 9 S.. 
 
 130. (c) 1 Bell's Com., 322— Tait Ev., 152—1 Phil. (7th ed.). 608— Chitty 
 
 on St., 142, 182. {d) Barliour v. Newall, 1823, 2 S.. 328— Corrie v. Barbour. 
 
 1827, 6 S., 2fi8— Napier v. Carson, 1828, ib., 500. (r) Mackintosh »•. Grant, 
 
 1831, 9 S., 583. (/) Kinp r. Recks, 1727, 2 l.d. Raym.. 1445. 
 
 {ff) Dcnniston r. Campbell. 1824, 3 S., 218.
 
 Ooo STxVMrs. § 997- 
 
 tbe stamp was inadoquatL' ; luit tlie Inner lluusu waived the point, 
 and decided the case on other grounds (h).^ 
 
 § 998. But a stamp is not rendered useless by a deed having 
 been "UTitten upon it which has not been executed ; and, therefore, 
 where a transfer of sliares of stock was on paper bearing the proper 
 stamp, but on which an unexecuted lease had been previously writ- 
 ten, and the testing clause of the transfer bore that all words " other 
 than those contained in this present assignation, are, and shall be, 
 held^^ro non script is and erased," the Court held that the transfer 
 was duly stamped (/). Nay more, a deed written and executed on 
 a proper stamp is not rendered inelfectual by a second deed relating 
 to a difi'erent subject having been subsequently written on the 
 same paper (A-). And when the same deed embraces different mat- 
 ters, and the stamp applies only to one of them, it will be efiTectual 
 in so far as that branch of it is concerned (I). It is matter of evi- 
 dence to which of the transactions the stamp applies (m). In 
 general it will be held applicable to the matter which is first set 
 forth in the deed (n). But if there is ground for attributing it to 
 any of the other transactions, it will be so treated ; as, for example, 
 where it had been affixed after the deed had been executed, and 
 the stamp-office receipt on it bore that the penalty had been paid 
 by a party who was concerned in only one of the transactions (p)}^ 
 
 (h) Wilkie v. Flowcrdew, 1850, 12 D., 818. («) Loiifrmore v. Lindsay, 
 
 1845, 7 D., 1098. [k) Ross v. Steven, 1740, M., 16,935. 
 
 (l) 1 Bell's Com., 322, note 8— Eobertson v. Ogilvie, 1834, 12 S., 580— Copley v. 
 Day, 1811, 13 East, 241— Perry v. Bouchier, 1814, 4 Camp., 80. 
 
 (m) Cases in preceding note. (n) Robertson v. Ogilvie, stq^m — Perry v. 
 
 Bonchier, siqjra — Bell's Com., supra. (o) Copley v. Day, siqyra. 
 
 9 Where several letters are produced to prove an agreement, it is sufficient if any of 
 tliem is stamped with a shilling stamp, whatever be the number of the words in the 
 letters; 23 and 24 Vict., c. 15, schedule xwce Agreement. Where, on the appointment 
 of a new trustee, the property being the subject of one trust-settlement, or the subject of 
 .several trusts created for the benefit of the same parties, more than one deed is neces- 
 .sary or desirable to vest the trust property in the new trustee, it is sufficient if one of 
 the deeds is stamped with the duty of £1, 15s., and the others maybe stamped as dupli- 
 cates ; 24 and 25 Vict., c. 91, § 30. 
 
 10 But if a deed be granted for two purposes — the one primary, and the other subor- 
 dinate, — the deed must be stamped as a deed for the primary purpose, and, if it is not, 
 it cannot be looked at when produced for the subordinate purpose. But it will be held 
 well stamped if stamped as a deed for its primary purpose. Thus where a discharge of 
 the sura in a bond, written on the back of tho bond, contained besides, a warranty of 
 llie discharge, a declaration tliut a certain Ijoiid and assignation and a policy of assur- 
 ance had been delivered to the gi-anter of the bond, and a clause of registration ; and 
 bore a receipt-stamp only, the discharge was sustained as sufficiently stamped ; because
 
 § 1 0(1 1. STAMl'S. <■'<>! 
 
 § [)[)'.). Wlicic llif bccuiul hull' ul' uuc ol' the .sheetb of btaiui»ed 
 ]>ai)Gr on wliiih a lease had l)eeu written had been removed, and 
 liiid hceii replaecd by an unstamped half-sheet introduced immedi- 
 ately after the half-sheet which remained, and on which the stam]) 
 had lieen impressed, the deed was held not to be jiroperly stamped, 
 althou-h the stami) would have been sufficient in amount if the 
 unstami)cd k-af had not been interpolated (p). 
 
 § 1000. As a stamp is exhausted by a deed having been written 
 and executed on it, a new stamp is re(iuisite if any material altera- 
 tion is afterwards made on the deed (r). But the first stamp is not 
 voided by alterations which have been made for the purpose of 
 more fully explainin;j,- the original contract (.s), or of correcting 
 errors, and thereby making the deed consistent with the original 
 intention of the parties {f). Alterations in suhsfaniiaUhus on bills 
 and promissory-notes may be made by consent of the parties, if the 
 document has not been issued ; but alterations made thereafter are 
 fatal («)■" 
 
 § 1001. Upon the principle of international law, that a deed 
 valid by the lex loci contractus is binding in another country, deeds 
 properly stamped by the law of the country where they are made, 
 and deeds wdiich do not require a stamp by that law, are effectual 
 in this country, although not bearing the stamp required for such 
 deeds by our own statutes {x). But, of course, this principle does 
 not protect deeds executed in Britain, and falsely bearing to have 
 l)een made in a country wdiere a stamp is not required ; and a fraud 
 of this nature may therefore be proved proiit dejure {y). 
 
 (p) Nicol V. Fraser, 1841, 3 D., 890. (r) 1 Bell's Com., 321, 322— Tait 
 
 Ev., 153—1 Phill. Ev. (Tth ed.), 511— Tilsley on Stamps, 358, 360. 
 
 (s) Supra, 2 889, el seg.— Waters v. Houghton, 1827, 1 Man. and Ey., 208— Tilsley 
 S02. (0 Supra, § 889, et aeg'.— Boll's Com., siii)ra—l Phill. Ev. (Tth cd.), 517 
 
 —Tilsley, supra. (w) Supra, ? 889, et seq. (x) 1 Bell's Com., 320— 
 
 Cliitty c.n Stamps, 277—1 Piiill. Ev. (7th ed.), 505— Story's Conil., § 318— Crutchy r. 
 Mann, 1814, 5 Taunt., 529— Siudth v. Mignay. 1813, 1 Mau. and Sel., 87. 
 
 (//) 1 Bell's Com., 321— Robertson and Co. i>. Routledgc, 1822, 1 S.. 562— Ogilvio 
 ('. Taylor, 1849, 12 D.. 2GG— Jordain v. Lashbrook, 1797, 7 Durf. and E.. GDI- Abraham 
 V. Dubois, 1815, 4 Camp., 269. 
 
 substantially it was a receipt, and the other clauses in it were collateral and sulwrdin- 
 ate; Fleming i;. Robertson, 1859. 21 D., 982— Tilsley on Stamps, 591. 
 
 n Alterations on bills, even after they are issued, may be made witli consent of the 
 parties to the bill, to correct a mistake and make thf bill consistent with (he original 
 intenticms of the parties. But such altcralions. whether made nfti-r or before the bill 
 has been issued, will, if in sulifinniiiilihiix. Im f;it:il \>< ilio bill, if made by one party with-
 
 002 STAMrs. § 1002- 
 
 § 1002. A recent stamp act has imposed duties (which are de- 
 noted hy adhesive stauips) on bills of exchange drawn abroad, and 
 negotiated within the United Kingdom, wheresoever they may be 
 payable. The statute ordains that '' the holder of any bill of ex- 
 change drawn out of the United Kingdom, and not having a proY)er 
 adhesive stamp affixed thereon as herein directed, shall, before he 
 s^hall present the same for payment, or indorse, transfer, or in any 
 manner negotiate such bill, affix thereon a proper adhesive stamp 
 for denoting the duty by this act charged on such bill ; and the 
 person who shall indorse, transfer, or negotiate, such bill shall, be- 
 fore he shall deliver tlie same out of his hands, custody, or power, 
 cancel the stamp so affixed," in the mode already mentioned (z). 
 It is also enacted that " every bill of exchange wdiich shall purport 
 to be drawn at any place out of the United Kingdom, shall, for all 
 the purposes of this act, be deemed to be a foreign bill of exchange, 
 drawn out of the United Kingdom, and shall l»e chargeable with 
 stamp-duty accordingly, notwithstanding that in fact the same may 
 have been drawn within the United Kingdom " (ci)}'^ 
 
 § 1003. The law is not settled as to the admissibility of a deed 
 which is ineffectual in the locus contractus from want of the stamp 
 required by the law' there prevailing. In such questions there is a 
 conflict betw'eeu the principle that tlie lex loci contractus regulates 
 the validity of a deed when sued upon in a foreign country, and the 
 principle that the courts of one state are not bound to enforce the 
 revenue laws of another, thereby perhaps increasing the resources 
 of a hostile power. The law^ on the point seems to be, that the lat- 
 ter principle prevails in regard to deeds ma<le in independent 
 states (6) ; but that those granted in any of the British colonies 
 must bear the stamps required by the colonial law (c). This dis- 
 
 (z) 17 and 18 Vict., c. 83, ^ 5 ; supra, I 989. [a) 17 and 18 Vict., c. 83, § 4. 
 
 (6) James v. Catherwood, 1823, 3 Dow. and Ry., 190. Here unstamped French re- 
 ceipts were received, and Abbot, C. J., observed, " The point is too plain for argument. 
 It lias been settled, or at least considered as settled, ever since the time of Lord Hard- 
 wicke, tliat in a British Court we cannot take notice of the revenue laws of a foreign 
 
 state Foreign states do not take any notice of our stamp laws, and wh)'^ 
 
 should we be more courteous to them? " See also Wynne v. Jackson, 2 Russ. R., 351, 
 — per L. Mackenzie in Taylor v. Scott, 1847, 9 D., 1504, 8 — Holman v. Jolmson, 1775, 
 1 Gowp., 343 — Planche v. Fletclier, 1779, 1 Doug., 251 — Bouchier v. Lawson, 1734, 
 Lee's Ca. Temp. Hardw., 194. (c) See Alves v. Hogson, 1797, 7 Durf. and 
 
 E., 241— Crutchley v. Manu, 1814, 5 Taunt., 529— Glegg v. Levy, 1812, 3 Camp.. IGf). 
 
 out the consent of tlie other; Edinburgh and Glasgow Bank r. Samson, 1858, 20 D., 
 1240. See mpra, \ 892, note 7. 
 
 >2 Sec 23 Vict., c. 15, and 23 and 24 Vict., c. 111. ^ripra, note 3.
 
 § 1005. sTAjrps. GU8 
 
 tiiirtion — which is iiut ustalilishi-il expressly hy dccisiuii — reconcik'S 
 principles otherwise conflicting. It is also c(jnsistent with sound 
 policy, on account of the mutual interest and oneness of all Iler 
 Majesty's dominions, and because the reciprocal enf(trcement of our 
 own stamp laws may be secured in tlie colonies, wliich it cannot be 
 in countries under a foreign government (d). 
 
 § 1004. At all events, where a deed or instrument executed on 
 unstamped paper, in a countrj'^ which is independent of the British 
 Crown, may, by the law of that country, be validated by being 
 stamped ex intervallo on paj^ment of the duty or a penalty, it seems 
 to be plain that the Courts of this country ought not to refuse ac- 
 tion on the deed until it has been transmitted to the foreign country 
 and there stamped. Such a deed was validly executed at its date, 
 although it recpiired to be stamped before it could sustain action in 
 the courts of the locus contractus ; and to refuse action upon it in 
 this coimtry would be equivalent to ordering payment to be made 
 to the exche(iuer of a foreign state, as the condition upon which ac- 
 tion could be enforced upon the deed in Britain (e). Tlie dilliculty 
 noticed in the preceding section only exists where it is a nullity l)y 
 the lex loci contractus, that the deed in issue was not wi'itten on pa- 
 per duly stamped liefore execution. 
 
 § 1005. In general, the production of the deed will show 
 whether or not it is properly stamped. And where there were traces 
 of a stamp of some kind, and the deed bore to be duly stamped, it 
 was held in England that the deed was admissible, unless the chal- 
 lenger proved that the stamp was inadequate (/). Where the ori- 
 ginal deed cannot be produced, the party leading secondary evi- 
 dence of its contents, or proving the tenor of it, is not obliged to 
 prove that it was stamped ; because he is entitled to the presump- 
 
 (d) This distinction is recognised in Cliitty on Bills, 121 — Cbitty on Stamp Laws, 
 276 — Tilsley on Stump Laws, 282. The application of the lex loci contractus in all cases 
 is favoured by 1 Phill. (Tth ed.;, 505— IIL Burge. Com.. 762— Story, Conf. of Laws, 
 §? 260, 318, 631—1 Bell's Com., 321— Tait. Ev., 166. (e) It is also easy to 
 
 figure cases where adopting the opposite rule from that stated in the text would occa- 
 sion injustice and confusion ; as where the stamp-ofiice of the foreign state refused or 
 delayed to aflSx the proper stamp, or where it demanded an exorbitant penalty for doing 
 so to a deed founded on by a British subject, while it dealt leniently \sith unstamped 
 deeds (perhaps forming parts of the same series of transactions) in which a foreigner 
 was grantee. (/) Doe d. Fryer v. Coombs, 1842, 3 Ad. and Ell., New R., 
 
 687.
 
 604 STAMPS. § 1005- 
 
 tion omne rite et solcnnltcr actum {g)P But slight evidence of want 
 of stamjiing- will reverse the burden of proof; as where a witness 
 producing the counterpart of a deed, which was withheld by the 
 party against whom he was adduced, deponed that the other part 
 was unstamped {h). 
 
 § 1006. An unstamped deed is admissible in order to prove 
 facts collateral to its purpose, as a deed requiring to be stamped. 
 The reason is, that the fisk is only concerned with excluding the 
 document as evidence of the matter to which the stamp is ap])li- 
 cable, and that while courts of law are bound to protect the revenue, 
 " it is not their duty to strain the construction of the stamp acts, 
 so as, without regarding the object of the Legislature, to deprive 
 parties of the means of evidence" (i). 
 
 The leading decision on this subject occurred recently in an ac- 
 tion for payment of an alleged balance of money due for work exe- 
 cuted by the pursuer, where the defender tendered an account to 
 which a signed, but unstamped, writing was annexed in these 
 terms, — " I acknowledge to have received from K. Matlieson sixty- 
 eight pounds nine shillings and four pence, being balance amount 
 of pay-bills payed from 7th August to 10th December both inclu- 
 sive." The sum corresponded with the balance in the account, and 
 the defender tendered the writing, not as proof of payment of that 
 sum (which was admitted) but as an admission by the pursuer of 
 the accuracy of the account and relative balance as at a certain 
 date. The Court of Session, by a majority of the whole judges, re- 
 jected the document, holding that it required to be written on a re- 
 ceipt-stamp ; but the House of Lords reversed the decision, on tlie 
 ground that the document was not tendered in order to prove the 
 receipt of money, but a matter entirely independent of its contents, 
 as evidence of that fact (k). In reviewing the decisions in this 
 class of cases, Lord Chancellor Cottenham observed, — " Upon a 
 consideration of the cases both in this country and in Scotland, but 
 particularly in this country, I find that they are so very inconsis- 
 tent with one another, and they seem in most instances to be so 
 
 {g) 1 Bell's Com., 322, note 6— More's Notes, 387— Tait, 154— Sliand Frac, 838— 
 Crisp V. Anderson, 1815, 1 Slark R.. 35. [h) Crowther v. Solomons, 1848, 
 
 18 Law Journ., N. S. (Com. PI.), 92— See also Rippinier v. Wright, 1819, 2 Barn, and 
 Aid., 478— R. V. Inhab. of Castle Morton, 1820, 3 ib., 588. '(?) Per Lord 
 
 Brougham in Matheson v. Ross, infra. (kj Mathoson v. Ross, 1849, 6 Bell's 
 
 Ap. Ca., 374; reversing, 9 D., 1366. 
 
 13 Closmadeuc r. Carrol, 1856, 18 Scoffs C. B., 36— Bfst on Evidcnco (3d ed.). 310.
 
 § lOOf). STAMPS. '5'>;'' 
 
 liltlc f('y,ii luted \>y iiiiy lixt.Ml rule "i- [.iiii(;i[.k-, that it wuiiM l>e a 
 hopeless task to endeavour to rccuiicile tlieiii." At the same time, 
 his Lordship added, that it appeared to him " that, from all the 
 cases, a eertaiu princi])le may he extracted, ^vhieh seems to have 
 regulated the minds of the judges who decided those cases ; although 
 questions may he raised undouhtedly upon many of them as to the 
 mode in which that principle is to he applied." The learned Lord 
 then proceeded to show that the question, whether an unstamped 
 deed is tendered for a collateral puijjose, does not depend on 
 whether the ohligation, discharge, or other matter to whieh the 
 stamp applies, is directly, or is only incidentally, involved in the 
 issue, hut upi.iu wlietliei- the doeument is tendered in order to prove 
 that there has l)een such an ohligation or discharge, whatever 
 hearing, direct or collateral, that fact may have upon the cause. 
 Lord iirougham, also, observing that it was "absolutely hopeless" 
 to attempt to reconcile the cases, expressed a similar opinion on 
 what is a collateral purpose ; an expression whieh his Lordship 
 thought was not perfectly accurate, or always very intelligible. 
 With reference to the question immediately before the House, his 
 Lordship observed — " If the document is used in a way to mix up 
 with it the receiving or pajang of money, so that, upon the whole, 
 a receipt of money is the matter for which, or in respect of which, 
 or connected with which, the document is used, it requires, past all 
 doubt, to have a stamp, because it is in one way or another used as 
 a receipt. But if the same document is used for a totally different 
 purpose, it is to me perfectly clear that it is not to be regarded as 
 a receipt." Lord Campbell's view was more strict as to the admis- 
 sibility of the document. Concurring Avith the other noble and 
 learned Lords on a distinction pointed out by the term " collateral 
 purpose," his Lordship considered that the admissibility of the 
 document did not depend on whether the party ostensibly tendered 
 it to prove a collateral fact, but on whether the issue involved only 
 such a fact, and not any matter whieh could be affected by proof 
 of the transaction or obligation fur whieh the stamp was required. 
 His Lordship oliserved, — " My opinion is, that if a document pur- 
 porting to be a receipt, but unstamped, is ollered in evidence for 
 any purpose during a trial, if it would be evidence when stamped 
 as a receipt to establish any point that is litigated between the 
 parties, it cannot be received for a collateral purpose, merely by 
 the parties saying ' I offer it for a collateral purpose, and let the 
 receipt part be taken pro n<»i svripfo.' T tliiuk you cannot ab- 
 stract a part of the document in this manner, and give the rest
 
 606 STAMPS. § 1()0()- 
 
 iu evidence. The crituviuu, therefore, seeins to me to be, not 
 wlictlicr the party seeks to make use of it as a receipt, but whether 
 it can be made use of as a document to settle any question liti- 
 g-ated bet^Yeen the parties ; and had this sum of £68 : 9 : 4 been 
 in dispute, I should luiYe thought that this document would not 
 have been receivable in evidence for any collateral purpose. For 
 only see the danger that would arise. Can the jury be told, ' You 
 are to discharge from your minds everything that applies to the re- 
 ceipt that is not upon stamped paper, and therefore it is not in evi- 
 dence : — but you are to look to the other part of it, and that you 
 are to apply to another and a collateral purpose.' I think this would 
 be a dangerous doctrine ; I find no case that lias gone so far." 
 
 § 1007. Without attempting to reconcile the decided cases, — 
 which would be a futile task, — the following may be noted as far- 
 ther bearing upon the doctrine evolved by the case of Mathesoii v. 
 Eoss. A parish clergymen addressed a letter to the presbytery of 
 the bounds, stating that owing to age and infirmity he had become 
 unable to discharge his duties, that he therefore requested the pres- 
 bytery to take steps for the appointment of an assistant and succes- 
 sor to him, and that he would give bond for the annual sum of £50 
 to the person so to be appointed. The patron thereafter presented 
 an assistant and successor ; and the minister opposed the appoint- 
 ment, on the ground that he had not consented to the person so 
 nominated. The presentee and presbytery having founded on the 
 letter, it was admitted to prove the consent, notwithstanding the 
 objection that it contained an obligation to pay money and was un- 
 stamped (J). 
 
 § 1008. In another case, a party seeking to reduce on the 
 ground of facility and circumvention a deed of settlement, dated 
 11th September, founded (among other evidence) upon a deed dated 
 20th November, by which the deceased revoked all deeds of settle- 
 ment executed by him within the previous three months. The de- 
 fender tendered a writing, executed by the deceased on 21st No- 
 vember, and duly tested, which set forth that a certain person had 
 repeatedly called upon the deceased to induce him to alter the deed 
 of 11th September, and that the day preceding (that is, on 20th 
 November) tlie deceased, contrary to his wishes, had been induced 
 by that person to execute a deed or deeds revoking all his previous 
 deeds of settlement. The document concluded by a clause ratifying 
 and confirming the deed of 11th September, and revoking all other 
 
 (/j Paton V. E. Zotlaiul, 1848, 5 D., 1049.
 
 i 
 
 ^ 10():>. STAMl'S. G07 
 
 sottlomeuts or writinp,s inconsistent with it. The pursuer ohjected 
 that tliis document, being a deed of revocation, was inadmissible, 
 as it did nut hear a deed stamp. The presiding judge (Lord Presi- 
 dent JJuylo) rei)elled tlic objection; and his L(»rdship's ruHng was 
 sustained on a l)ill of exceptions. Lords ClilHes and ]\[ackenzie 
 consi(k'red tliat as the only issue before the jury was facility and 
 circumvention, tlie document was admissible in order to rebut that 
 issue, by showing the state of mind in which the deceased had been, 
 and his feelings towards the pursuer at a certain date ; while its 
 application to that purpose did not depend on its validity as a deed 
 of revocation. Lord Fullerton considered that the document was 
 admissible, because in its own intrinsic character it did not require 
 a stamp. But if a stamp had been necessary to give it validity as 
 a deed, his Lordship was of opinion that it would have been inad- 
 missible for the purpose for which it was used. This decision seems 
 not to be consistent mth the view expressed by Lord Campbell in 
 Matheson v. Ross (/«) ; because the document, if properly stamped 
 and admitted to prove the revocation and corroboration respectively 
 which it set forth, might have had an important bearing upon the 
 issue. 
 
 § 1009. Again, in a trial of an issue, whether the defender had 
 " wrongfully, maliciously, and without probable cause," used certain 
 arrestments on the dependence of an action in which he was ulti- 
 mately unsuccessful, an unstamped deed of agreement between him 
 and a third person was admitted as evidence of probable cause («). 
 The presiding judge (Lord Just.-Cl. Hope) observed, " We are not 
 now in a question of proof as to the property of the sheep (the 
 matter to which the deed related). The question is, whether the 
 defender had probable cause for claiming them upon the assump- 
 tion of their being his. In that view I thiidc the document is not 
 to be refused." On the same principle, if diligence had proceeded 
 on a bill or other docmnent l)earing an inade(juate stamp, the docu- 
 ment would be admissil)le for the creditor in an action of damages 
 for wrongous use of diligence. There seems to be little doubt of 
 the justice of such a principle; although, perhaps, it is hardly "vvithin 
 the rule laid down in the House of Lords in the case of ^latheson 
 V. Ivoss, above cited (o)M 
 
 (»0 Supra, ? 1006. (n) Hunuing v. Hcwatson, 1852, 14 D., 1084. His 
 
 Lordship's ruliug was excepted to. See also Ninimo v. Stewart, 1832. 10 S., 844. 
 
 (o) In tlio following cases, also, the Court admitted unstamped writings when ten- 
 
 '* In a question as to the onerosity of the indorsation on a bill ; an account reu- 
 VOL. I. 2 g
 
 608 STAMPS. § 1010- 
 
 § 1010. It ^^-ill not be good objection to a document tendered 
 as proof of a person's handwriting, and admitted to be genuine, 
 that it is unstamped ; as the obligation, or other matter to which 
 tlie stamp applies, is quite foreign to the purpose for which the 
 document is used (jj). 
 
 § 1011. An unstamped receipt is not admissible to prove that 
 a certain correus paid a debt, the payment of which by some one 
 of the joint obHgants is admitted by the creditor (r). 
 
 § 1012. It has been held in England that where a stamped 
 deed has been altered by a document Avhich does not bear the proper 
 stamp to make it effectual as a deed, the latter may be looked at in 
 order to show that there has been an alteration ; because, if it were 
 not, a deed would be enforced which the parties intended should 
 no longer be binding (s). This, however, is thought not to be a 
 sufficient ratio, where the party founding on the document may get 
 it stamped on payment of a penalty, and the doctrine may be 
 C|uestioned in other cases also. 
 
 § 1013. A recent statute enacts, that " every instrument liable 
 to stamp-duty shall be admitted in evidence in any criminal pro- 
 ceeding, although it may not have the stamp required by law im- 
 pressed thereon, or affixed thereto" (t). This rule therefore, ap- 
 
 dered for what were considered as collateral purposes ; Balfour v. Lyle, 1832, 10 S., 853 
 —Gray v. .Johnstone, 1838, Macf. R., 54— Henderson v. Steele, 1829, 7 S., 303— Bennie 
 V. Mack, 1832, 10 S., 255— Erskiue v. Erskine, 1819, 2 Mur., 184. None of these de- 
 cisions seem to be reconcileable with the views expressed by the House of Lords in the 
 case of Matheson v. Ross, suj}ra, g 1006. {p) Per curiam in Mackenzie v. Craw- 
 
 ford, 1839, 1 D., 1091. (r) Scott v. Burd, 1845, 8 D., 25. 
 
 (s) French v. Patten, 1808, 9 East, 351— Reed v. Deere, 1827, 7 B. and C, 261. 
 The ratio of these decisions would make an unstamped discharge admissible in all cases, 
 lest the obligation should be enforced after it had been extinguished. 
 
 (t) 17 and 18 Vict., c. 83, g 27. Before this statute was passed, unstamped docu- 
 ments had been received for the Crown in criminal cases ; Mackenzie, 1846, Arkl., 97 
 —Beattie, 1850, J. Shaw's R., 356—2 Al. Crim. Law, 610— Bramwell, 28th July 1819, 
 there noted— Dover v. Maestaer, 1803, 5 Esp., 92— See Bell's Notes, 280, 1. 
 
 dered by the drawers of the bill to the acceptor, and containing entries of money paid 
 by the acceptor, was admitted to show the state of the balance at its date between the 
 parties to the bill, though it was unstamped; Bannatyne v. Wilson, 1855, 18 D., 230. 
 Jottings on an unstamped promissory-note, which were holograph of the maker, and re- 
 lated to payments of interest on the sum in the note, were received in evidence of a 
 loan by the maker of the note to the payee ; Eraser v. Bruce, 1857, 20 D., 115. But 
 when a defender insisted that a pursuer should find caution for the expenses of process, 
 on the ground that he had divested himself of his property— a disposition omnium 
 bonorum by the pursuer was rejected as evidence of the divestiture, because it was un- 
 stamped; M'Queen v. Munldch, 1861, 23 D., 725.
 
 § 10 in. STAMPS. <J09 
 
 plies, whotlior the (locuincnt is tt'iicL'n'd lor tho Cn^wii or lor the 
 j)risoner. 
 
 § 1U14. An unstamped deed may he used by a witness to refresh 
 his memory, wlierc parole of the matters whieh it sets forth is ad- 
 missible (u) ; and if he has become blind since it was written or 
 signed, it may be read over to him {x). 
 
 § 1015. As the national object of the stam[) acts ought not to 
 be defeated by the private agreement of litigants, it is j^ut's Judicis 
 to enforce them for protection of the revenue. Accordingly, the 
 objection that a document is unstamped may be stated at any stage 
 of the cause, although there is no plea on record to raise it, and al- 
 though it may involve a proof collateral to the issue (a). And if 
 tlie objection has been raised, it may not be waived upon consent 
 of parties (h). But it may not be raised after the parties have 
 been out of Court, and the document has been followed by decree in 
 a competent process without the objection having been taken (c)}^ 
 
 § 1016. All deeds and instruments executed on paper not 
 properly stamped (unless falling under some special enactment as 
 to stamping, after execution) may be validated by subseijuent 
 stamping under certain penalties, which the Commissioners of In- 
 land Revenue have power to remit in whole or part, if they are 
 satisfied that the omission did not arise from intention to defraud 
 the revenue, and if the deed has been brought to them for stamping 
 within twelve months after execution (d). From this privilege are 
 excepted bills of exchange and promissory-notes (e) ; which can 
 
 (m) Dickson v. Taylor, 1816, 1 Miir., 142— Catt v. Howard, 1820, 3 Stark R., 3— 
 Rambert v. Cohen, 1790, 4 Esp., 213— Jacob v. Lindsay, 1801, 1 East, 4G1— Manghan 
 V. Hubbard, 1828, 8 Barn, and Cress., 14—2 Al. Cr. Law, 510—1 Phill. Ev. (7th ed.), 
 504 — Chitty on Stamps, 232, 321. (x) Jacob v. Lindsay, supra — Al. Cr. Law, 
 
 supra. (a) This is constantly seen in practice. In a reduction of certain bills, 
 
 tho objection that a new obligant had signed after the bills had been issued, and there- 
 lure that the stamp had been marred, was entertained after the record had been closed, 
 and wlien neither fact nor law appeared on record to raise the point ; Home v. Purves, 
 1836, 14 S., 898. Lord Balgray observed in this case, — " I have known the objection 
 taken up for the first time in the House of Lords." (6) Cadzow v. Wilson, 1830, 
 
 5 Mur., 99. (c) Napier v. Carson, 1828, 6 S., 500— Barbour v. Grierson, 1828, ib., 
 
 800- See also Halley v. Leitch, 1833, 12 S., 58— Graham v. Gordon, 1842, 4 D., 903; 
 infra, § 1020. (<f) 13 and 14 Vict., c. 97, g 12—44 Geo. Ill, c. 98, § 24. By re- 
 
 gulations of the Inland Revenue Office, deed.s may be stamped within si.\ty days with- 
 out a penalty. (e) 44 Geo. Ill, ib. — 13 and 14 Vict., supra. 
 
 15 In England the objection must be taken when the document is tendered in evi- 
 dence ; Robinson v. Vernon, 1860, Scott's C. B. N. S., 235. 
 
 2g2
 
 UlO STAMPS. § 1016- 
 
 only be stamped afterwards, if they were originally written on paper 
 bearing a stamp of adecpiate amount but wrong denomination (/'). 
 Receipts may be stamped within, but not beyond, a month after 
 they "shall be given or bear date" (g). Charter-parties maybe 
 stamped within a month from the first date they bear, and on pay- 
 ment of a penalty (h). Bills of lading cannot be stamped after 
 subscription (i). A stamp cannot be affixed to executed policies 
 of miarine insurance (Jc), except in cases of additional stamps for 
 policies of mutual insurance which were not underwritten for a 
 sum beyond what the original stamp would warrant (I). Proxies 
 for voting at meetings of shareholders of joint-stock companies may 
 not be stamped after subscription (vi). 
 
 § 1017. Such agreements as arc subject only to a stamp of two 
 shillings and sixpence may be stamped within fourteen days of 
 execution, without payment of any penalty (n). A similar privilege 
 extends to attested copies of deeds, if stamped within sixty days 
 from the date of attestation (o). Deeds executed abroad, also, may 
 be stamped without any penalty, if presented to the Commissioners 
 of Inland Eevenue within two months after they have been re- 
 ceived in the United Kingdom (^j). 
 
 § 1018. Formerly, when a deed was stamped after execution, a 
 receipt for the penalty was written upon it. But now, in lieu of 
 this receipt, a stamp denoting the penalty is impressed on the deed 
 in addition to the usual stamp ap})licable to it ; and no deed or in- 
 strument which has been stamped after execution can be pleaded 
 or given in evidence, unless it shall have been stamped with the 
 particular stamp referred to (r). 
 
 § 1019. A deed stamped after execution, where that is compe- 
 tent, is equally valid as if it had been written upon paper or vellum 
 previously stamped (s). 
 
 § 1020. Where subsequent stamping is competent, and the 
 statutory period for it (if any such is prescribed) has not expired, 
 it may take place at any stage of the cause in which the document 
 is produced, and although the parties have joined issue on the deed 
 
 (/) 37 Geo. Ill, c. 136, §2 5, 6. Even in such cases there is a penalty. 
 
 {g) 35 Geo. Ill, c. 55, ^g 10, 11. This also is under a penalty. 
 
 (h) 5 and 6 Vict., c. 79, § 21. (i) lb. (k) 35 Geo. Ill, c. G3, § 14. 
 
 (Z) 9 Geo. IV, c. 49, ? 1- (»0 7 and 8 Vict., c. 21, g§ 6, 7. 
 
 (n) 7 and 8 Vict., c. 21, ^ 5. Such agreements may be stamped after the fourteen 
 days on payment of a penalty ; ib. Agreements subject to a higher duty fall imder the 
 general provision of 13 and 14 Vict., c. 97, § 12, and relative regulations, supra (d). 
 
 (o) 39 and 40 Geo. Ill, c. 84, § 2. (jj) 13 and 14 Vict., c. 97, jj 13. 
 
 (r) lb., § 12. (s) 37 Geo. Ill, c. 136, ? 2—13 and 14 Vict., c. 97, § 12.
 
 ^ lO-Jl. STAMPS. Oil 
 
 wlicii uiistaiuited (/). Tlie Court arc also in tlie constant practice 
 of sisting process, in order to allow this objection to be rcnicnx-d l)e- 
 forc they pronounce judgment (u). Even after a jury trial, where 
 one party has lost in consecpience of a document tendered by him 
 bcijig excluded as unstamped, the Court allow a new trial on its 
 being produced to them with the defect removed (x). And where 
 the parties to a trial had agreed that copies should be received as 
 originals, and a cojjy of an unstamped deed was admitted without 
 objection, it was held that the want of stamping could not be 
 l)leaded in a bill of exceptions on other gTounds, the proper stamp 
 having been impressed on the deed in the meantime (y). 
 
 § 1021. Subsequent stamping validates diligence on the un- 
 stamped deed by adjudication or inliiljition (z), by action of mails 
 and duties (a), or poinding the ground (6), and even by caption 
 and imjirisonment (c). But in a suspension of a charge, on the 
 ground that the deed on which it proceeded was not duly stamped, 
 the Court refused to delay disposing of the case until a proper stamp 
 should have been affixed ; and they accordingly granted the sus- 
 pension on caution (f/). Where the claim of a creditor in a seques- 
 tration has been rejected, because the deed on which it proceeded 
 was unstamped, it will be sustained on the deed being stamped in 
 tlie interval between the finding of the trustee and the decision of 
 the Court on a reclaimer (e). And the same rule applies to the 
 case of a creditor, whose vote for the trustee has been rejected on 
 the ground that his document of debt was not stamped (/"). Nay 
 more, where the debt of the petitioning creditor in a sequestration 
 was founded on an unstamped deed, the sequestration was sustained 
 against a petition for recal at the instance of the bankrupt, the deed 
 
 (t) Cases in following notes. It has been questioned whether a deed may be stamped 
 after the case has been heard in the House of Lords ; Miller v. Moodie, 1833, 7 W. S., 
 12. (u) See, for example, Boyd v. M'Kenna, 1824. 2 S., 712 — ^I'Xiven v. 
 
 Hunter, 183G, 14 S., 685— Union Insurance Co. v. Bontine, 1838, IG S., 1241— Church 
 V. Sharps, 1843, 5 D., 87G— Harvey v. Miller, 1845, 7 D., 398. But see Mackintosh v. 
 Grant, 1831, 9 S., 583, infra, (h). (x) AVallace v. Gray, 1836, 14 S., 541— 
 
 Ivison V. Ediu. Silk Co., 1845, 8 D., 236. (y) Graham r. Gordon, 1842, 4 D., 903. 
 
 (r) Kingstonc's Crs., 1743, Elch., "Writ," No. 14— Laniont v. Lament's Crs., 1789, 
 M., 5404 ; 16.045 — W^right v. Murray, 20th June 1821, as noticed by Lord Ordinary in 
 Davidson v. Gibb, itifra — Sec also Smith r. Flowerdew, 1850. 12 D., 818. 
 
 (a) Davidson «•. Gibb, 1838, 1 D., 10. (*) Wood r. Ker, 1838, 1 D., 14. 
 
 (c) King r. Baillie. 1844, 7 D.. 228. (rf) Lillie v. Finlater. 1835. 14 S.. 127 
 
 — See also Mackintosh v. Grant, infra, (h). (e) Law r. M-Larcn. 1849, 11 D.. 
 
 1489. (/) Morries v. Glen. 1843, 6 D.. 07— Ironside v. M'Gowan, 1847. 10 So. 
 
 Jur.. 597.
 
 612 STAMPS. § 1021- 
 
 baving in tliu mecintime been stamped (g). In bke manner, an 
 action of removing, wbieb was raised on an unstamped lease, may be 
 proceeded witb on tlie defect being cured (h). 
 
 § 1022. Tlie want of a proper stamp is only fatal to tbe docu- 
 ment, and does not affect tbe obligation, discbarge, or otber trans- 
 action tberein set fortli, except in so far as tliat may de^^end on tbe 
 deed. Accordingl}^, if an obligation, to tbe constitution of wbicb 
 ■v\Titingis not essential ex solennitate, is admitted on record, tbe ob- 
 jection tbat tbe document constituting it is unstamped will be un- 
 availing ; tbe record being full proof witbout reference to tbe docu- 
 ment («'). And wbere a bill or otber document bas been cut down 
 on account of not being duly stamped, tbe creditor may prove tbe 
 debt by tbe debtor s writ or oatb on reference, or by sucb otber evi- 
 dence as tbe case admits of {¥). But wbere a document, if stamped, 
 would bave required to be produced, and parole of its terms would 
 liave been inadmissible, under tbe rule wliicli requires tbe best evi- 
 dence, parole will not be rendered competent to prove tbe obligation, 
 in consequence of tbe deed being excluded as unstamped (T). Ac- 
 cordingly, wbere documents wbicb were beld to constitute a lease 
 for a 3^ear were unstamped, and tbercfore inadmissible, tbe Court 
 refused to admit parole of tbe terms of tbe contract (in)}^ 
 
 [g) Eobb V. Forrest, 1831, 8 S., 1035 ; affd., 5 W\ S., 740. 
 
 (A) M'Nanght v. Graham, 1834, 12 S., 619— Eoss v. Webster, 1834, 12 S., 308. 
 The same rule was applied in election cases, where a party claimed on a deed not pro- 
 perly stamped, and got the defect cured before his claim had been finally disposed of; 
 A B, 16th February 1819 (not rep.), noted 1 Bell's Com., 739 — Dennistoune v. Camp- 
 bell, 1824, 3 S., 218. But where a claim had been rejected by the Freeholders' Court on 
 other grounds, and on the case coming to the Court of Session the objection was, for the 
 first time, taken that the deed claimed upon was not duly stamped, the Court held that 
 the claim had been properly rejected, and recused to supersede the case until the defect 
 should be cured ; Mackintosh v. Grant, 1831, 9 S., 583. 
 
 {{) 1 Bell's Com., 322— per L. Ch. Eldon in Huddleston v. Briscoe, 1805, 11 Vesey, 
 696 — Thynne v. Protheroe, 1814, 2 Ma. and Sel., 554 — See also Matheson «. Ross, 
 1847, 9 D., 1366 ; reversed on merits, 6 Bell's Ap. Ca., 374, noted supra, g 1006. But 
 merely admitting that the deed in question was signed, without admitting the obliga- 
 tion, is not sufficient ; Greenock Bank v. Darroch, 1834, 13 S., 190. And admissions of 
 the obligation will not obviate the want of stamping, unless they were made on record ; 
 Ogilvie V. Taylor, 1849, 12 D., 266. [k) Bell's Com., supra— G&M v. Fordyce, 
 
 1828, 6 S., 943 — Greenock Bank v. Darroch, supra — Cliitty on Stamps, 323 — Brown v. 
 Watts, 1808, 1 Taunt., 353— Farr v. Price, 1800, 1 East, 58. [l) See sui^ra, § 114 
 
 — Cases in next note. {m) Hutchison v. Ferrier, 1851, 13 D., 837 (affd. on an- 
 
 other ground. 1 Macq., 196)— See also E. v. Inhab. of St Paul's, 1795, 6 Durf. and E., 
 
 1^ In an action for the price of goods sold under a written contract, wliicli referred
 
 § 102;-). FOKEIGN DEEDS. fil3 
 
 § 1023. Wlieio writing is essential tu the cunstilutiun uf a 
 right or (A)ligation, c.r/., a sale of heritage not followed by ret inter- 
 ventus, the want of such a document duly stamped (where stamping 
 is required) cannot he obviated by other evidence, or even l)y ad- 
 missions on record ; l)ecause, unless the contract has been completed 
 in the mode referred to, there is locun penitent im- from it as an un- 
 linisliod transaction.^^ 
 
 CHAPTER XII.— RULES OF INTERNATIONAL LAW REGARDING 
 
 DEEDS. 
 
 § 1024. Diilicult questions sometimes arise as to the eflect of 
 deeds, formal by the law of the country where they were executed, 
 but not bearing the solemnities required by the law of a different 
 country in which action is raised upon them. For a full examina- 
 tion of these questions reference must be made to the treatises on 
 international law (a). The scope of this work t)nly admits of a 
 summary of the doctrines on the subject, especially as these have 
 been evolved by Scotch decisions. 
 
 § 1025. There are two general rules in this class of cases, name- 
 ly — First, that obligations regarding moveables are regulated by 
 
 I 
 
 452— Turner v. Power, 1828, 7 B. and C, 625; Mo. and Mai., 131, S. C— Hodges v. 
 Drakeford, 1805, 1 Bos. and Pul. New R., 270— Ramsbottom v. Mortley, 1814, 2 Ma. 
 and Sel., 445 — Buxton v. Cornish, 1844, 1 Dow. and L., 585— R. v. Inhab. of Castle 
 Morton, 1820, 3 B. and Aid., 588— Chitty on Stamps, 322— and Harrold v. PoUoxfen, 
 1844, 6 D., 1103. (a) This subject is discussed in 2 Boulleuois, 458, et seq. — 
 
 Story's Conii. of Laws, § 360 (a), et seq.—Z Burge Com.. 751, et seq. — Ersk., 3. 2, 39, 
 et seq. — Karnes' Equit^ {4th ud.), 548, et seq. 
 
 for the terms of payment to an arrangement between the defendant and a third party, 
 it was proved that this arrangement was in writing, and that the writing was unstamped. 
 It waa held that the plaintiif could not recover, because ho could not prove the terms of 
 payment, parole evidence being incompetent because of the existence of the writing ; 
 and the writing being inadmissible, because it was unstamped, and because the period 
 had elapsed during which it could be stamped; Alcock v. Delay, 1855, 4 Ell. and 
 Blackb.. 060. 
 
 17 Deeds relating solely to the .state of a sequestrated bankrupt, and forming part 
 f.f tlie proceedings in a sequestration, are exempt from stamp-duty, by 19 and 20 Vict., 
 c. 79. (J 184. " No will, testament, testamentary instrument, or disposition mortis causa, 
 .^hall be cliargeable with any stamp-duty ;" 23 Vict., c. 15, § 7.
 
 014 INTERNATIONAL LAW § 1025- 
 
 tlie h\r loci contractus ; because, the subjects of these obligations 
 ha^'iug no locus of their own, persons who enter into contracts re- 
 garding them are presumed to have in view the hiw of the country 
 where the contract is undertaken, and this both in regard to its 
 conditions and the mode of its constitution ; and they ought not to 
 be allowed to escape from obligations so constituted, on account of 
 the remedy for non-performance requiring to be sought in another 
 country; — and, Secondly, that obligations regarding heritable estate 
 are regTilated by the lex rei sitae ; because the lociis of that class of 
 subjects is fixed ; and because the rules as to transmitting, burden- 
 ing, or otherwise affecting portions of its soil, enter into the public 
 law of ever}^ state. 
 
 To both of these rules however, there are exceptions ; the lex 
 loci contractus being sometimes regarded in obligations relating to 
 heritage, and the lex re^ sitae forming in a few respects the rule in 
 contracts as to personal estate. 
 
 § 1026. Under the first of these principles deeds of personal 
 obligation (6), and deeds for transmitting personal property (c), exe- 
 cuted in a foreign country according to the law there prevailing, 
 are effectual when sued upon in a Scotch court. So, a mandate 
 executed in England according to the forms prescribed by English 
 law is valid to authorise legal proceedings in this country {d) ; and 
 bonds granted by English debtors in the English form were held to 
 be validl}^ transferred by blank indorsations in England ; the act 
 1696, c. 25, anent blaidc writs, being found not to apply to them (e). 
 In like manner, a will executed according to the law of the de- 
 ceased's domicile, is valid in another country, although it may not 
 
 {b) Ersk., 3, 2, 40— Karnes' Equity (4th ed.), 5G4— 2 BoiiUenois, 487— Story Confi., 
 >i 260— Fortoun v. Shewan, IGIO, M., 4429— GalLraith v. Cimningham, 1626, M., 4430 
 —Harper v. Jaffrey, 1630, M., 4431 ; 17,016, S. C— Elphinston v. Rollo, 1665, M., 
 17,018— Salton v. Salton, 1073, M., 4431— La Pine v. Semple's Crs., 1721, M., 4451. 
 In this case a bond granted in England, containing power to register in Scotland, and 
 therefore intended to be effectual hero, was sustained although defective in the solemni- 
 ties required by the act 1681, c. 5, because it was formal by the law of England. See 
 also Ogilvy v. Murray, 1724, Eob. Ap. Ca., 499. (c) Ersk., swpra- Karnes' 
 
 Equity, 556—3 Burge Com., 751— Falconer i;. Seattle's Heirs, 1627, M., 4501; 1 B. Sup., 
 148; 240, S. C— Sinclair v. Murray, 1636, M., 4501— Erskine v. Ramsay, 1664, M., 
 4502. In all these cases the cedent, assignee, and common debtor were Scotchmen. 
 In Scott V. Tosh, 1676, M., 4502, effect was given to an assignation made in Holland, 
 and contained in an instrument tlu; warrant of which the notary kept in his liands, ac- 
 cording to the custom of that country. (d) CJt. Northern Ry. Co. v. Laing, 1848, 
 10 D., 1408. {e) Ranking of Yf.rk Buildings Co., 1783, M., 4472. 
 
 I
 
 § lf)2:». l;i:f;AKI»IN'G DEEDS. '11") 
 
 hear the solemnities whieli tlie law of tlmt couutiy prescnl)es for 
 wills executed within its l)Oini(ls {J').^ 
 
 § 1027. Oil the other haixi, if an ol)li<;ation or conveyance re- 
 garding nioveahles is delieient in the solemnities required by the kx 
 loci coH/mctus, it will not be sustained in another country in which 
 these solemnities are not required (g). On this gTound eilect was 
 it'fused in Scotland to indorsations made in England by English 
 creditors to English assignees oi" del)ts in account due by Scotch 
 debtors ; because, although not deficient in any formality required 
 by.tlie law of this country, they were by the law of England invalid 
 both as deeds and under the stamp acts (//). In like manner, bills 
 liy a person domiciled in Newfoundland, paya1)le to his daughter, 
 with a relative letter to his trustee, not being a competent mode of 
 constituting a testamentary bequest by the law of that country, 
 were held to be ineffectual in Scotland, when sued u}K.n by the 
 daughti'r (/). 
 
 § 1U28. Yet the rule last noticed docs not render inoperative 
 those deeds which, being intended to take effect in Scotland, bear 
 the solemnities required by Scotch law, but are informal by the lex 
 loci contractus {Jc). It is doubtful whether formal deeds of assigna- 
 tion executed in England to personal debts due by parties domiciled 
 in this country are effectual, when framed and authenticated (as 
 they sometimes are) according to the law of Scotland (0- 
 
 § 1029. AVhere the lex ret sitae prescribes a particular mode 
 for completing the Jus in re under contracts and conveyances re- 
 garding moveables, it would seem that that procedure nmst be ob- 
 served in order to give the grantee the real right to the subject, al- 
 though it is not required by the lex loci contractus {m).^ But the 
 
 I 
 
 (/) Story Confl., § 4G5— Wardlaw v. Maxwell, 1715, M., 4500— Stewart r. M'Donald, 
 182G, 5 S., 29. Other cases illustrating this rule are cited infra, § 1032, et seq. 
 
 {(/) Story Coull., § 2G2— 3 Burgc Com., 701. (A) Taylor v. Scott, 1847, 
 
 y D., 1504. (*■) Siucluir v. Alexander, 1861, 14 D., 217. (A-) Per L. 
 
 Brougham in Yatos v. Thomson, 1835, 3 CI. and Fin., 544 ; 590— Per I-. Fnllerton in 
 Taylfr v. Scott, sujmi—Sce also Ferguson v. Marjoribauks, 1853, 15 D., 037— Story, 
 i 202, note. (/) Cases in preceding note. (/«) 3 Burge Com., 751. Mr 
 
 Burge refers, by way of illustration, to conveyances of shares in public companies. So 
 iiu English contract of sale of goods in Scotland, not followed by delivery, although 
 conipotcut to carry the real right to such goods in i':ngland, would not have that eft'ect iu 
 Scotland in competition with a Scotch sale of later date but completed by delivery. In 
 like mann.r. Professor Bell lays down that a foreign assignation of a Scotcli d. bt must 
 
 1 See note i", hij'ia. 
 
 - The view that an arrestment of funds in Scotland will laivail over a foreign uo-
 
 610 INTERNATIONAL L.\W § 1029- 
 
 grantee under an obligation valid l>y the lex hci contractus has a 
 good ground of action to compel the granter to complete the real 
 right in conformity with the lex rei sitae (n). In like manner, a 
 foreign executor is not vested with the deceased's moveable estate 
 in this country until he has expede confirmation ; but the foreign 
 will or probate, if valid by the lex domicilii testatoris, entitles him 
 to confirm (o).^ 
 
 § 1030. Under the second general principle above noticed, deeds 
 of transmission of land and its accessories, and of securities *over 
 heritage situated in Scotland, in order to be effectual, must be com- 
 pleted in accordance mth the law of this country ; the observance 
 merel}^ of the solemnities required by the lex loci contractus being 
 insufficient to secure their validity {p). But an obligation to con- 
 vey land, if formal by the lex loci contractus, may be enforced by 
 action in this country against the granter and his heirs ; because it 
 
 be completed by intimation (or what is eciuivalent tliereto) in order to carry tbe debt in 
 competition with arresting creditors; and he mentions that an opinion to the same eifect 
 was given by a very learned Scotch lawyer, John Clerk, afterwards Lord Eldin; 2 Bell's 
 Com., 19, and note. Erskine lays down the same rule (3, 2, 42), citing a decision of 
 the Court of Session, but which involved other points, and was reversed on appeal ; E. 
 Selkirk v. Gray, 1709, M., 4453 ; reversed, 1 Rob. Ap. Ca., 1 (as to the ground of rever- 
 sal see Bell's Com., supra). The point is still doubtful ; see 8 Burge, 777— Story, 395 
 — and note of Lord Rutherfurd (Ordinary) in Wallace v. Dacres, 1853, 15 D., 691. 
 
 (n) 3 Burge Com., 752. (o) M. Hastings v. M. Hasting's Ex., 1852, 14 
 
 D., 489— Stewart v. Macdonald, 1826, 5 S., 29— Wardlaw v. Maxwell, 1715, M., 4-500— 
 Clerk V. Brebner, 1759, M., 4471. See contra, Shaw v. Lewis, 1665, M., 4494, infra, 
 § 1046. (jo) Ersk., 3, 2, 40— Kames' Equity, 549— Tait Ev., 126— Story, § 363 
 
 — 2 Burge, 840, et seq. — 4 ib., 217, et seg.— Cases infra, ? 1031. 
 
 signation not completed by intimation, seems implied in the opinions of the judges in 
 Donaldson v. Ord, 1855 ; although in that case that precise point was not decided, be- 
 cause, in the opinion of English counsel, the English creditor deed, which was there 
 founded on as an assignation, was not of itself sufBcient to bar the diligence of creditors ; 
 but, to have that effect, required to be brought to the knowledge of those who held the 
 fund assigned ; and it was held tliat no intimation, and nothing equivalent by the law 
 of Scotland to intimation, had been made to them prior to the arrestment. The Court 
 held that the question, whether the claim of the trust-assignees under the creditor deed 
 or that of the arrestees was preferable, would, if competently raised in the action, re- 
 solve into a competition of diligence as to the attachment of a fund situated in Scotland, 
 and that that competition must be determined according to the law of Scotland ; Donald- 
 son V. Ord, 1855, 17 D., 1053. On 4th September 1860, Wittenberg, a Prussian, by 
 bill of sale, executed in Prussia, sold a Prussian ship, tlien at sea, to Kulil, also a Prus- 
 .sian. On 5th October 1860, the ship, having arrived at Scotland, was arrested by 
 Wittenberg's creditors. On the opinion of Prussian lawyers, that according to the law 
 of Prussia the bill of sale pas.sed the property of the ship at its date, the Court held the 
 aiTcstments ineffectual ; Schultze v. Robinson, 1861, 24 D., 120. 
 3 See infra, jJ 1042, note i'».
 
 §1031. KEGARIUNG OKKDS. HIT 
 
 is a personal obligation ad fad mil praesfanduiu (>•). Upon tlie same 
 principle, a disposition of heritage, if valid according to the lex loci 
 contractus, should, it is thought, be sustained in Scotland as a 
 ground for ordaining the granter to execute a disposition formal by 
 Scotch law ; and this seems to have been held in one case («). But 
 11 there is an opposite decision (t), which Mr Erskine cites as fixing 
 
 a distinction l)etwcen a disposition formal by the lex loci contrac- 
 tus, and an ol (ligation to convey land having the same formali- 
 ties («). That learned author, however, was not aware that there 
 was a conflict in the decisions ; and there seems to be good ground 
 in principle for holding, with a recent writer (x), that as a disposi- 
 tion for an onerous consideration is cijuivalont to an obligation to 
 convey, it ought to be sustained as a ground of action if it is formal 
 by the lex loci contractus ; whereas a gratuitous disposition, espe- 
 cially if mortis causa, ought not to be effectual unless it is formal 
 by the lex rei sitae. This view is also supported by the opinion of 
 Lord Kames (y), who challenges the decision of Lord Dalkeith v. 
 Book, on which Mr Erskine founds.'* 
 
 § 1031. Another application of the rule as to foreign deeds re- 
 lating to heritage is, that a will formal by the lex domicilii testa- 
 tor is is. ineffectual as a bequest of heritable subjects in Scotland, 
 This follows from the rule that Scotch heritage can only be trans- 
 mitted by deeds in the form of conveyances inter vivos; for it would 
 be absurd to give to a foreign testament a greater effect than that 
 which could follow upon a will bearing the formalities required by 
 Scotch law (z). Accordingly, a foreign will is ineffectual to carry 
 subjects heritable in their o^^Tl nature (a), or debts heritably se- 
 cured {b), even where the security is taken to another person in 
 
 (r) Ersk., 3, 2, 40 —Kames' Equity, p. 548— Govan v. Boyd, 1790, M., 4476; Bell's 
 Octavo Ca., 223; 1 Ross Ca., 112, S. C— Cuningham v. L. Seinpil, 170G, M., 44G2; 1 
 Koss Ca., 110, S. G.— Weir v. Laiiig, 1821, 1 S., 192. {«) Case of L. Mary 
 
 Cochrane v. Col. Erskiue (not rep.), mentioned in 1 Ross Ca., 116. As the note of this 
 case, liowever, is taken from a wiltten pleading, it cannot be relied upon. 
 
 (0 E. Dalkeith v. Book, 1729, M., 4464. (u) Ersk., 3, 2, 40— See also 
 
 Tait Ev., 126. (x) 1 Ross Ca., 118. (y) Kames' Equity, 551. 
 
 (z) Ersk., 3, 2, 41. (a) Ersk., si/pni — Burgess y. Staiutin, 1764, M., 4484 
 
 — Crawfurd's Children t'. Crawfurd, 1774, M., 4486 — Henderson v. Selkrig, 1795, M., 
 4489 — Robertson's Crs. v. Mason's Disponees, 1795, M., 4491. (b) Henderson's 
 
 Children v. Murray, 1623, M., 4481— Melvil v. Drummond, 1634, M., 4483. 
 
 I 
 
 ■* It is thought to be the law of Scotland that a writing purporting to transfer Scotch 
 lieritage is of no effect unless framed, "both in point of style, and in point of formality, 
 iieeording to the peculiar law and practice of Scotland." See Leith c. I.eith, 1848. 10 
 1)., 1137— Purves' Trustees v. Purves' E.\ecutors, 1861, 23 D.. 812, 826.
 
 CIS INTERNATIONAL LAAV §1031- 
 
 triist for bebuof of tlie cioditor (r). It is iiut settled whether such 
 a deed can transmit bonds which are heritable merely by destina- 
 tion, in virtue of a clause excluding executors (d). 
 
 § 1032. Yet a foreign will may operate indirectly as a bcr|uest 
 of heritage in this country, where it contains legacies of moveable 
 estate in favour of the granter's heir-at-law, as w'ell as be(|uests of 
 heritage to other persons to his prejudice. -In such a case the heir 
 cannot approbate and reprobate the deed, by at the same time 
 claiming the moveables as bequeathed to him by the will, and the 
 heritage as falling to him ab intestato. He must make his election; 
 and, if he chooses to abide by the will, the person to wdiom the 
 heritage is bequeathed by that, deed may make the bequest efi'ectual 
 through an action against the heir (e). 
 
 § 1033. A will formal 1 jy the lex domicillii testatoris is also a 
 habile mode of declaring the truster's intentions, where by a deed 
 in the Scotch form he has conveyed heritage to trustees for pur- 
 poses to be declared by a writing under his hand (/). The same 
 rule w^as applied to a foreign will executed before the trust-deed, 
 where it appeared to be the granter's intention that the deeds 
 should l)e read together as forming one settlement {g).^ 
 
 (c) DaATidsou V. Kyde, IT'JT, M., 5597 ; afl'., M., " Heritable and Moveable," App., 1 — 
 Stewart v. AVatson, 1791, Bell's Oc. Ca., 225— See also Stewart v. Grajine, 1799, M., 14,407. 
 
 (<f ) In Eoss V. Ross, 4tli July 1809, F. C, such bonds were held not to be carried by 
 an English will ; but the decision was not allowed to become final ; the case having 
 been settled extrajudicially after a reclaiming petition against the judgment had been 
 lodged. (e) Dundas v. Dundas, 1830, 7 S., 241 ; aifd., 4 W. S., 460— Trotter 
 
 V. Trotter, 1829, 5 S., 78; affd., 3 W. S. 407— Murray v. Smith, 1828, 6 S., 691 
 —Campbell v. Monro, 1836, 15 S., 310— Louden v. Louden, 1811, HumeD., 23— Gainer 
 V. Cunniughame, 1750, 1 Bligh, 27. So in Bennet v. Bennet's Tr., 1829, 7 S., 817, a 
 widow was not allowed to take both her share of her husband's estate in the Isle of Man, 
 on the footing of its being intestate, and the provision in her favour under a Scotch 
 trust-deed, which the truster had intended should include that property, but which had 
 failed to do so in consequence of informalities by Mans law. Of course the rule stated 
 in the text only holds where the foreign deed is insufficient to carry heritage in conse- 
 quence of informalities, and does not apply where the granter's intention to bequeath 
 that estate is doubtful ; see Robertson v. Robertson, 16th February 1816, F. C. — Wight- 
 man V, De Lisle, 1802, M., 4479, as explained in Hume D., 24 — Per Lord FuUerton in 
 Robertson v. Ogilvie's Tr., 1844, 7 D., 236. 
 
 (/) Fordyce v. Cocliburn, 1827, 5 S., 897— Brach v. Johnstone, 1827, 6 S., 113; 
 affd., 5 W, S., 61— Ker v. Ker's Tr., 1829, 7 S., 454, and 8 S., 694 ; afi^d., 5 W. S., 718 
 —Cameron v. Mackie, 1831, 9 S., 601 ; affd., 7 W. S., 106— Willok v. Auchterlony, 
 1772, M., 5539; 1 Ro.ss Ca., 401. («/) B. Norton's Tr. v. Ly. Menzies, 1851, 
 
 13 D., 1017. With this case compare Bowie v. Bowie, 1811, Hume D., 765. 
 
 5 Purves' Tru-stoes v. Purves' Executors, supra, Campbell's Trustees v. Campbell, 
 1S62, 24 D., 1321. But see infra, g 1042, note '».
 
 § lO.'^f). HEGARDINU DEEDS. <J19 
 
 § 1U34, Mureuvcr, a coiivcyuiicc of lioritago hy a lunnal Scotdi 
 (Iced, reserving power to alter, may be revoked or limited 1»y a Avill 
 or other deed formal by tlie /ex- f/o//tjc?7/< of the graiiter, but doli- 
 cieiit ill the solemnities prcscriJjed l)y Scoteh law (A).^ 
 
 § 1035. International questions regarding deeds usually in- 
 volve another principle, namely, that courts of law are in general 
 bound to apply their own rules of evidence in investigations which 
 proceed before them, although the cause of action arose in a coun- 
 try where diHerent rules of evidence are observed. This jtrinciple is 
 fully elaborated in two judgments of Lord Brougham, and is estalj- 
 lished l)y other authorities (/). Its application has already been 
 seen in the rule that the courts of a country where a certain pre- 
 scription, or limitation of the mode of proof exists, are bound to 
 apply that prL'scrii)tion, although it is not recognised in the lex loci 
 contractus {])? In like manner, courts in Scotland would not, be- 
 
 (A) Simpson v. Barclay, 1752, Eleli., "Testament," No. 2 ; 5 B. Sup., 794; 1 Ross 
 Ca., 1 ; S. C— Dundas v. Dundas, 1783, M., 15,585; 1 Ross Ca., G73, 724, S. C. (On 
 this ca.se see Sandford on Entails, 229) — "Wliytelaw v. Lang, IGth November 1810, 2 
 Bell's Illust., 417 ; 2 Sli. Ap. Ca., 13 (note); 1 Ross Ca., 674, S. C— Leith v. Leitli, 
 1848, 10 D., 1137. The rubric of Cameron v. Mackie, 7 W. S., 106, stating the opjio- 
 site doctrine, is erroneous, as the point did not occur in the case. See also Henderson 
 V. Wilson, 1797, M., 15,444; reversed, M., Appx., "Tailzie," No. 3 ; noticed in Sand- 
 ford on Entails, 230. The cases on this subject are ably analysed in 1 Ross Ca., 673, 723. 
 
 {i) In Yates v. Thomson, 1835, 3 CI. and Finn., 587, Lord Brougham observed, 
 " Those principles which regulate the admission of evidence are the rules by wliich the 
 courts of every country guide themselves in all their inquiries. The truth with respect 
 to men's actions, which form the subjt'ct-mattcr of their inquiry, is to be ascertained 
 according to a certain definite course of proceeding ; and certain rules have established 
 that, in pursuing this investigation, some things shall be heard from witnesses, others 
 Tiot listened to ; some instruments shall be inspected by the judge, others kept from his 
 eye. This must evidently be the same course, and governed by the same rules, what- 
 ever be the subject-matter of investigation ; nor can it make any difference whether the 
 facts concerning which the discussion arises happened at home or abroad ; whether they 
 related to a foreigner domiciled abroad, or a native living and dying at home. As well 
 might it be contended that another mode of trial should be adopted, as that another 
 law of evidence should be admitted in such cases. Who would argue that, in a question 
 like the prest-nt, the Court of Session should try the point of fact by a jury, according 
 to tlie English procedure, because the testator was a domiciled Englishman, and be- 
 cause those methods of trial woubl be applied to liis case were the question raised here ? 
 The answer is, that the question arises in the Court of Session, and must be dealt with 
 by the rules which regulate inquiry there. Now, the law of evidence is ann-ng the 
 chief of these rules." See also, per L. Brougham in Don i\ Lippman, 1837, 2 Sh. and 
 M'L., 726— Per eund. in Bain v. Whitehaven, &e. Railway Co.. 1850, 7 Bell App. Ca., 
 92— Story's Confl., § 634— Taylor on Ev., 46, 47. U) Supra, § 526, et seq. 
 
 '■' Purves' Trustees v. Purves' Executors, supra. But sec infra, note i". 
 
 ' The holder of a bill drawn and accepted in England, and made payable in Eng-
 
 620 INTERNATIONAL LAW § 1035- 
 
 fore the act 16 Vict., c. 20, have been obhged to admit the parties 
 as "VN^tnesses, in consequence of the cause of action having arisen in 
 Enghxnd, where such evidence was admissible. Nor is it a good 
 reason for excluding the pursuer's oath in supplement in a Scotch 
 court, that the lex loci contractus does not admit that mode of in- 
 vestigation (k). And again, one witness would not be full proof in 
 an action in Scotland, in consequence of the contract or other mat- 
 ter involved having arisen in England, where the law is satisfied 
 \vith that amount of evidence. 
 
 § 1036. How then does this principle accord witli the rule al- 
 ready noticed, that the validity of deeds concerning moveables de- 
 pends on the lex loci contractus F For example, a Scotch deed for- 
 mal by the act 1681, is admitted in Scotland without parole proof 
 of its genuineness ; — Will it be received in the same way in a 
 country where the witnesses to deeds, if alive, must be adduced to 
 prove their attestations ? Or again, will a deed executed in Eng- 
 land according to the formalities required there, be received as pro- 
 bative in this country ; or must the attesting witnesses be exa- 
 mined in support of it ? Farther, if a deed is executed before wit- 
 nesses who are disqualified for that oifice by the lex loci contractus, 
 but admissible in the lex fori — or vice versa ; — will the deed be ef- 
 fectual ? A still more difficult question arises : Suppose witnesses 
 to be admissible in the lex loci contyxictus to establish an obligation 
 which, by the lex fori, can only be proved by writ or oath of party, 
 — will the court in which action is raised to enforce the obligation 
 follow its own rules, and thereby render that right unavailing 
 which was validly constituted by the law on which the parties re- 
 lied at its date ; or will that court observe the rules of evidence in 
 another country in ascertaining a fact for which their own practice 
 prescribes a different mode of investigation ? And in the converse 
 case, of an oldigation which, by the lex loci contractus requires to 
 be reduced to writing, being sued upon in a country where parole 
 of such obligations is competent ; — will witnesses be admitted to 
 prove it in the courts of the latter country ? 
 
 {k) Fraser v. Lookup, 1748, M., 4590. 
 
 land, cliarged the acceptor on it in Scotland.- The acceptor pleaded that it had been 
 fraudulently indorsed ; and that, seeing it was an English bill, the charger was bound, 
 according to English law, to prove that he got it in bona fide, and for an onerous con- 
 sideration. But it was held that the questions relating to the proof of the value of the 
 bill fell to be determined by the lex fori; Mackenzie v. Hall, 1854, 17 D., 164.
 
 § 1030. REGARDING DEEDS. ''^'21 
 
 It is iinpossilile to sulvc all the (lifficulties with wliich tliL-se 
 ciucstions arc .sunoiiinliil ; and to analyse and balance the conflicting- 
 opinions on them wonlil re(juiro much more space than can lie de- 
 voted to the sul»ject in this volume. The following- rules, however, 
 may 1)C stated as most in accordance with principle ami autho- 
 rity. 
 
 § 1037. A deed executed in Scotland hearing the solemnities 
 required by Scol'li law. wliilc it will be admitted in a country where 
 different solemnities are observed, and where the witnesses to deeds 
 executed in that country must be adduced to prove their attesta- 
 tions, will not receive effect there without the instrumentary wit- 
 nesses being examined, if thoy arc alive (I). 
 
 § 1038. A foreign deed didy authenticated liy the lex loci con- 
 tractus, but not admissible in that country without the instrumen- 
 tary witnesses ])ro\-ing its genuineness will not be received in Scot- 
 land as probative ; for (besides the consideration noticed in next 
 section) the solemnities prescribed by the law where it was executed 
 are not designed as full proof of authenticity; and therefore, to admit 
 the deed without corroborative evidence, would be to receive as 
 complete proof a writing which is not complete proof by the law^ 
 with reference to which it was prepared.^ 
 
 § 1039. Even where by the foreign lex loci contractus a deed is 
 probative, it is thought that the Courts of this country ought not 
 to admit it without some evidence of its genuineness ; because the 
 solemnities prescribed by the foreign code may be inadequate, or 
 their value may arise from tests which have a local character. For 
 exami)le, a deed appearing to bear the signature of a notary may 
 usually be received with safety in the locus contractus, where the 
 existence and character of such a functionary can easily be ascer- 
 tained, and where the signature and seal to the deed can be com- 
 pareil with those ap])ended to genuine documents ; whereas such 
 means of testing its authenticity are not likely to be within the 
 reach of a party, against whom the deed or instrument is tendered 
 in the Court of another country. Farther, the rule by which a 
 deed attested according to the act 1G81 is probative, is an exception 
 to the more general rule, that a document must be proved to be 
 genuine before it can be received as such ; and the exceptional rule 
 
 {I) Per Lord Bnnigliiim in Yatfs v. Tliomsun. Hin)ra — Tiiylcir. 47. 
 
 s E;irl of Hopetoun v. Scots Mines Co., 1856, 18 D., 739. See opinion of Lord 
 Currii'liill. 747.
 
 G'2"2 INTERNATIONAL LAW § 1039- 
 
 arises from the legislature of tliiy coiiutry being satisfied with the 
 safeguards wliieli it has prescribed, a?, primn facie proof of genuine- 
 ness. I)Ut this cannot be applied by analogy to the formalities 
 enacted by the legislature of a foreign state.^ 
 
 § 1040. Yet, where there Avas no reason for doubting the 
 genuineness of a foreign deed, and where great inconvenience and 
 delay would have been occasioned by requiring it to be proved, the 
 Court have dispensed with the witnesses' attendance, and received 
 the deed o.^ jwima facie proof (m). 
 
 § 1041. It is thought that a deed attested by a witness who is 
 competent by the lex loci contrachts, but incompetent by the lex 
 fori, ought to be sustained, both because it was validly executed 
 according to the law ujjon which the parties were entitled to rely, 
 and because the witnesses whom the parties to a deed select to at- 
 test it should not, except in extreme cases, be held to be incompe- 
 tent (n). 
 
 § 1042. Judge Story lays down, that a deed executed in the 
 presence of witnesses, one or both of whom are incompetent by the 
 lex loci contractus, is invalid, although the same ground of incom- 
 petency does not exist in the lex fori (o). Nor is it easy to draw 
 a distinction between such a deed and one which is attested by 
 fewer witnesses than the lex loci co7itracttis requires ; the invalidity 
 of which seems to be clear {p ). Yet this view almost comes into 
 conflict with the principle, that the Courts of one country are not 
 bound to observe the rules of evidence of another ; for the qualifica- 
 tions of instrumentary witnesses rather form part of this branch of 
 law, than of that which relates to the constitution of obligations. 
 It were also unfortunate that such an objection should be fatal on 
 account of the technical regulations of a foreign state, in opposition 
 to the real justice and hona fides of the transaction. i*^ 
 
 {m) Thus in Scott v. Miller, 1830, 5 Mur., 239, a power of attorney executed in 
 America, and attested by a notary there, was received as prima facie proof, on account 
 of the hardship of bringing witnesses from America to prove it. In an old case, Chatto 
 V. Ord, 1702, M., 445C, an English bond was received in Scotland, without calling the 
 instrumentary witnesses, which the Court of that day considered impracticable on ac- 
 count of the distance. The want of means for compelling the attendance of forc'ign 
 witnesses may also be taken into view in such cases. {n) See supra, §§ G90, G91. 
 
 (o) Story, § 630. {p) Yates v. Thomson, 1835, 3 CI. and Finn., 567. 
 
 9 The jjassage in the text seems opposed to the settled rule, that a written contract 
 executed according to tlie forms required by the lex loci contractus, will be received as 
 well executed in the courts of other countries. See infra, note i". 
 
 10 The law of Scotland has been somewhat elucidated and matured on the questions 
 treated of in this and the previoixs sections, by recent decisions. It seems quite clear,
 
 § l()4:l UEGAHDlXi; ItKF.DS. 623 
 
 § 1043. The next question is, wliutlier u coniiuel ur right which 
 l»y the h'x loci contractus canncjt he i)rove(l hy pcirole, ^vill be siis- 
 
 as a general nile, that the validity of a contract or deed regarding moveables depends, 
 so far as regards the mode of execution, on the /ex loci executionis. If the deed be valid- 
 ly (executed according to that law, it will be received as a valid deed in the Courts of 
 Scotland (if it be not contra honos mores) ; and in like manner, a contract or other deed 
 inter vivos regarding moveables, duly executed in Scotland, will receive effect in foreign 
 courts, because laws as to the formalities and authentication of writings do not extend 
 extra territorium. In a recent case, the (luestion was raised whether two decrees arbitral, 
 pronounced in England in a Scotch sul>mission, could receive effect in Scotland. It 
 was held that they were not authenticated according to the Scotch statutes. Lord 
 Benholme thought that although the formal validity of contracts was to be judged of 
 according to the lex loci executionis, yet that decrees-arbitral were in a different position, 
 being deeds executed under powers or faculties, and depending for their validity solely 
 on the power conferred expressly or by implication. But the other judges (the case be- 
 ing sent to the whole Court) held that the Court would recognise the decrees if they 
 were valid according to the law of England. Some of the judges thought that they 
 might be sustained whether held authentic in England or not. English coun.'^el, in 
 answer to a Case sent under order of the Court, returned an opinion that, by the law of 
 England, no particular formalities were required to authenticate an award, but that an 
 award signed by the arbiter would be received, on proof of the arbiter's signature. 
 The Court then pronounced an interlocutor finding that the decrees might be recog- 
 nised, if the Court were satisfied that they were authentic, and that they correctly ex- 
 pressed the final decision of the arbiter ; Earl of Hopetoun v. Scots Mines Co., 185G, 
 18 D., 739— See Teuton v. Livingstone, H. of L., 1869, 3 Macq., 497, 31 Scot. Jur., 578. 
 The Lord Justice Clerk (Inglis) sums up the law on this point thus:— "All instru- 
 ments (without distinction, except in the case of conveyance of land) executed abroad 
 according to the solemnities of the place of execution, must receive effect in Scotland 
 exactly in the same way as if they were executed within Scotland according to tlie 
 solemnities of the act 1681 ;" Purves' Trustees o. Turves' Executors, 23 D., 831. 
 
 The law as to the validity of wills, in respect of formality of execution, has been to 
 a large extent defined by the recent :statute 24 and 25 Met., c. 114. That statute pro- 
 vides " that every will and other testamentary instrument made out of the United King- 
 dom by a British subject (whatever may be the domicile of such person at the time of 
 making the same, or at the time of his or her death) shall, as regards personal estate, 
 be held to be well executed for the purpose of being admitted in England and Ireland 
 to probate, and in Scotland to confirmation, if the same be made according to the forms 
 required, cither by the law of the place where the same was made, or by the law of the 
 place where such person was domiciled when the same was made, or by the laws then 
 in force in that part of Her Majesty's dominions where he had his domicile of origin." 
 The second section provides that wills made within the United Kingdom by British 
 subjects shall, as regards personal estate, be held to be well executed, if executed ac- 
 cording to the forms required for the time in the part of the United Kingdom where the 
 will is made. The third section provides that no will shall be held to be revoked or to 
 become invalid, nor shall the construction of it be altered, because of any subsequent 
 change of the domicile of the testator. The act provides (? 4) that its provisions shall not 
 invalidate any will which, independently of the act, would be valid ; and (§ 5) it extends 
 only to wills and other testamentary instruments made by persons who die after the pass- 
 in" of the act, viz., Gth August 1861. It will bo observed that this act applies only to wills 
 
 VOL. I. 2 R
 
 024 INTERNATIONAL LAW § 1043- 
 
 taiiiCHl on tliat kind of evidence, if by the lex fori it can be so 
 proved. 0\\ this point a distinction must he taken between cases 
 
 made by British subjects. As to the persons who are British subjects, see Sheddan v. 
 Patrick, 1854. 1 Macq., 535. 
 
 Before this act was passed, the doctrine that a will was good if executed in the form 
 required hj the law of the testator's domicile of origin, or in the form required by 
 the law of the place of execution, was definitively rejected in the English Courts, 
 and the general rule was that no will was recognised in England, or admitted to pro- 
 bate, except a wiU in the form prescribed by the law of the testator's domicile at 
 death ; Croker v. Marquis of Hertford, 1843, 3 Curt., 4G8— Stanley v. Bernes, 1830, 
 3 Haggard, 373— Bremer v. Freeman, 1857, 10 More's Privy Council Cas., 306. To 
 this riile several jurists recognised an exception in the case where a testator had made 
 a will in the forms reqiiired by the law of his domicile, and, before his death, had ac- 
 quired a domicile in a country requiring diiferent forms of execution. "Whether, in that 
 case, his will would be valid or not, appears, prior to the act 24 and 25 Vict., c. 114, to 
 have been in England an open question. Perhaps the preponderance of authority was 
 in favour of the validity of the will, but in a recent case in America, it was held that a 
 will was, in such circumstances, invalid ; Nat v. Coon, 10 'Missouri Eep., 543, in con- 
 formity with the opinion of Story, Conflict of Laws, g 473 — See Jarman on Wills, 
 3d ed., vol. i, p. 2, et seq. — Westlake's International Law, § 323 — Burge's Com., vol. iv, 
 p. 576 — Phillimore's International Law, vol. iv, p. 626, 27, 28. The general rule of the 
 English law was applied in a recent case, in wliich an Englishwoman who had been 
 married in England and divorced in Scotland, and who afterwards resided in France, 
 executed a will, valid according to the law of France, but not in conformity with the 
 English statute of wills. Had she been domiciled in France, the will would have been 
 held good. But it was held, in the English Courts, that her divorce from her husband 
 was invalid; that her domicile, therefore, was that of her husband, which was England; 
 and that, therefore, her will, being invalid according to the law of the domicile, could 
 not be admitted to jn-obate, or receive any effect ; Piobins v. Dolphin, 1858, 27 L. J. 
 Prob., 24. In contrast with this case was another recent case, in which an English- 
 woman who had long resided in France, made, while she was in England, a will in con- 
 formity with the English statute of wills. The will was sustained on two grounds — 
 First, because it was held that the domicile of the testatrix was England; and, secondly, 
 because, even if her domicile had been France, the will would have been good; because 
 the law of France, like the law of Scotland, recognises all wills made in the form re- 
 quired by the law of the place of execution ; Crookenden v. Fuller, 1859, 8 Weekly 
 Reports, 49. 
 
 It is thought that the law of Scotland never required that a testament bequeathing 
 moveables should be executed according to the forms required by the testator's domicile, 
 but has recognised all testaments, executed either according to the lex loci executionis, 
 or the lex loci domicilii. Before the act 24 and 25 Vict., c. 114, was passed, the law of 
 Scotland on tliis .subject was very elaborately discussed in Cases which were sent to the 
 whole Court in Purves' Trustees v. Purves' Executors. There the testator, who was a 
 domiciled Scotchman, died in Scotland ; and a question arose as to the validity of his 
 la.st will, which he had executed in Sumatra. This will was not authenticated accord- 
 ing to the solemnities of the act 1681, and the question was. Whether it was valid if 
 executed according to the law of Sumatra? It was contended, on the one hand, that in 
 determining as to the formal validity of a testament, the law of Scotland recognised 
 not the lex loci actus. l)ut the lex rei sitae; at one piricMl it had been hold that the h gal
 
 § l()43. ifK(;AKi)iN(; dkkds. 625 
 
 wlicre writiii;^' is necessary ex soltunitute, ami tliusc- in wliich it is 
 only a iiiocle of proof, competent alou^- with o.itli on reference and 
 
 situs of iiiC)Viiil)lc jnoperty, situateil in fiict in Scotliiri<l, was ScutlaiKl, wln-rcvir tli^ 
 owiar of it was, or was domicilccl ; and that thirtforf a bequest of inf>veable!J situated 
 iu Scotland required to be made witli tiie formalities of the act 1681, as the lez ret 
 sitae ; l)ut it was afterwards establisiied tiiat, iu questions of succession, ruoveable 
 property had in law no situs except that of the domicile of the owner of it ; and 
 hence the inle of law recognising the lex rei sitae became, as reganled testate per- 
 sonal succession, a rule recognising the law of the domicile of the testator at death ; 
 and, it was argued, that the Courts of the domicile, being Scotland, must apply their 
 own niles of evidence, namely, those provided by the act of 1681. On the other 
 hand, it was contended that testaments disposing of moveable estate were on exactly 
 the same footing as contracts, and might, as in the case of mutual wills, take the fonn 
 of contracts, and were, like contracts, valid if executed according to tiie law of the place 
 of execution. The majority of the whole Court held tliat tin; will was to be regarded 
 as a valid expression of the testamentary intentions of the deceased, if formally exe- 
 cuted accortling to the law of Sumatra,— that while Scottish heritage could not be be- 
 queatlied at all, and could be conveyed only by a deed in the form required by the lac 
 rei sitae, it was the settled law of Scotland that the Scotch statutes as to authentica- 
 tion of deeds are not imperative as to wills " executed iu a foreign country, but that 
 such wi-itings are receivable here as valid or authentic expressions of testamentary 
 will, if executed according to the formalities which would make them valid as wills or 
 testaments in the country of execution; and that, in this respect, there is no distinction 
 between such writings and any wTitings of the nature of contracts or obligations exe- 
 cuted abroad, unless it be that, from the peculiar favour shown to wills, they may be 
 treated with more indulgence than a writing inter vivos." . . . . "In none of the 
 cases is the domicile of the party, whether at the date of execution or at the date of 
 death, regarded as afl'ecting the authentication of the deed." . ..." In the case 
 of Leitli, the testator, though he died in London, was domiciled in Scotland. But 
 this circumstance, though most material as aifecting the rights of parties interested in 
 his succession, was not considered, and has never been considered, by the law of Scot- 
 land as aifecting the validity of the deed as a mere instrument, if executed acconling 
 to the lex loci actus." Their Lordships expressed their concurrence with those conti- 
 nental jurists who held that a testator making his will in a foreign coiuitry had his 
 option to follow either the Ibnnalities prevailing in the place of his domicile (that is to 
 say, his domicile at the time of making the deed), or those of the place of execution. 
 The Lord Justice-Clerk (Inglis), in expressing his concurrence with the consulted 
 judges, stated the law as follows : — " The estate, or a considerable portion of the estate, 
 both heritable and moveable, of the testator, being locally within Scotland, this Court 
 is forum competens to ascertain and determine any question which may arise as to his 
 succession. But the forum competens may, in many cases, require to resort to foreign 
 law for the purpose of determining such questions. For the law of the domicile of the 
 decea.sed. at the date of his death, must determine not only what is the true nuaning 
 and construction and etfect of any will or deed of settlement he may have left, disjx)s- 
 ing of his nuiveable estate, but also, as regards his nu)veable estate, whether he died 
 testate or intestate ; and if he died testate, the law of the domicile must further deter- 
 mine what paper or papers constitute the will of the deceased." . . . . "In the 
 present case, the law of the /on/m and the law of the ilomicile are the same : and thcrc-- 
 fore We are not driven to resort to any foreign law to ascertain what constitutes the
 
 62t) INTERNATIONAL LAW § 1043- 
 
 aduiissioiis on record. In cases of the former class the interposition 
 of writing is a condition suspensive of the obhgation; and, till it has 
 
 will of the deceased. But it is of the utmost importance to keep in view what is the 
 function of the forum of distrihvition, acting as a mere medium of granting administra- 
 tion or dividing the estate, and the function of the law of domicile as fixing what is the 
 will. That the law of the domicile can alone settle what is the will, is a principle of in- 
 ternational law of extensive, if not universal, acceptation. And the /on/7w of distribution 
 bends to that law, and receives its instruction with unquestioning faith in deference to 
 this international principle. But the function of the law of the domicile is quite different. 
 It determines what is to be received as the will of the deceased, not on any principles of 
 international law or views of general jurisprudence, but according to the rules of its 
 own municipal system." His liordship went on to say, that it being ascertained that 
 the testator was domiciled in Scotland, the question. What were his testaihentary papers '? 
 was not a question of international law, but a question in the municipal law of Scot- 
 land; and the settled law of Scotland — that is, of the domicile — was, that "all instru- 
 ments (without distinction, except in the case of conveyance of land) executed abroad, 
 according to the solemnities of the place of execution, must receive effect in Scotland 
 exactly in the same way as if they were executed within Scotland according to the 
 solemnities of the act 1681." It seems doubtful, at first sight, how far the opinion of 
 the Lord Justice-Clerk, and tliat of the majority of the consulted judges, proceed on the 
 same principles. The latter held that the Courts of Scotland recognise any will authen- 
 ticated according to the law of the place of execution, whatever was the domicile of the 
 testator ; and that the domicile of the testator, at the date of his death, cannot be re- 
 garded as aff'ecting the authentication of his will. The Lord Justice-Clerk held the 
 question to be a question of the law of the domicile, and that the law of the domicile, 
 in this particular case, recognised all wills executed according to the forms required by 
 the law of the place of execution. The result of both views was, of course, in the cir- 
 cumstances of that case, the same, namely, to support the will, if valid according to the 
 lex loci actus: But supposing that the testator in the case of Purves had been domiciled 
 in England at the date of his death, it is thought that the Scottish Court, as the forum 
 compctens, would not have administered the law of tlie domicile only. If reference were 
 made, in the case supposed, to the law of the domicile — that is, to the law of England — to 
 ascertain whether the will was valid or not, the answer would, it is apprehended, have 
 been adverse to the validity of the will according to the law of the domicile, if it were 
 not framed in conformity with the English statute of wills ; unless, indeed, the English 
 Courts acted on the view of the Lord Justice-Clerk, viz., that the municipal law of 
 England is, that all instruments executed abroad according to the solemnities of the 
 place of execvition must receive effect in England in the same way as if they were exe- 
 cuted within England according to the English statute of wills. But the case of Bremer 
 V. Freeman, supra, shows that no such view is recognised in the English Courts; and, 
 therefore, if the Scottish Courts, in the supposed case, made reference to the law of the 
 English domicile, the answer would be that the will was invalidly executed according 
 to the law of the domicile. Yet, it is thought, that the Scotch Court, as the tribunal 
 of distribution, would of necessity recognise tlie will, though authenticated neither ac- 
 cording to the statute 1681, nor according to the forms required by the law of domicile, 
 if authenticated according to the forms required by the lex loci actus. Perhaps the law 
 laid down in the case of Purves may be stated thus : — That in all questions as to the 
 capacity of a testator to test, or the constniction of his will, or its legal eifect, reference 
 must be made to the law of his domicile at death ; that reference must also be made to
 
 § UM3. kkuakdixl; dkkds. G'JT 
 
 been ailhiliitfil. th.- cnntnict is iii(:ho;iti' and dfticieiit in the essen- 
 tial element (if linal consent; as the party might admit un record 
 that lie hail verbally agreed to be bound, and yet might escape by 
 l)leading his right to resile, provided matters were entire. Aceord- 
 ingly, in such cases parole of the verbal agreement seems to be in- 
 admissible, notwithstanding the rules recognised in the lex fori (r). 
 For example, this would be the rule in a verlml contract (ji" service 
 for more than a year («), a verbal assignation of an incoriioreal 
 moveable (0, or of a patent or copyright {u), and in a verbal con- 
 tract \vhich the parties agreed should be committed to writing {x) ; 
 such contracts being entered into in Scotland, and sought to be en- 
 forced in another country. So a verbal sale of goods in a country 
 where writing is essential to the sale of articles of their value, would 
 
 (r) Thr law is so laid down in 2 Boullenoisi, 458, 9— Story, § 262—3 Burge, 760. 
 (s) Hiijjra, i 564. (0 Siij)ra, § 557. («) Supra, >i 558. 
 
 {x) Supra, I 603. 
 
 tliat law to ascertain whether he has left any papers, and if so, what papers, which are 
 of a tcstaniL-ntary character in point of expression, construction, and intention ; but that 
 as to authentication and form, the papers thus ascertained to be testamentary in their 
 nature, will be sustained as duly executed, if executed according to tlie law of the place 
 of execution, whatever the law of the domicile of the testator may declare on that sub- 
 ject. It is of importance, however, to observe, that if a British subject, who dies after 
 6th August 1861, makes a will, and aftcrwar.ls changes his domicile, and has a domicile 
 at the date of his death different from liis domicile when he made his will, questions 
 as to the construction of that will must now be determined according to the law of the 
 testator's domicile when he made his will, and not according to the law of his domicile 
 at death ; because the third section of the act 24 and 25 Vict., c. 114, ju-ovides that the 
 construction of a will, once made, shall not be held as altered by change of domicile. It 
 would seem to follow, also, that reference must be made to the domicile of a testator at the 
 time when he executed any writing, to ascertain whether that writing, according to its 
 true construction, was or was not testamentary. If, however, the construction of a will 
 does not depend on any peculiarity of the foreign law, the Court will construe it for 
 themselves; Sinclair and Others (Thomson's Trustees) v. Alexander, 1851, 14 D., 217. 
 While all conveyances of Scotch heritage not executed according to the solemnities 
 required by the Scotch statutes, and all bequests of Scotch heritage, are null, a will or 
 other deeil executed abroad according to the forms of the place of execution, revoking 
 the conveyance and purposes in a duly executed Scotch trust-deed conveying heritage 
 mortis causa, will receive efl'ect. But if a party execute in Scotland a trust-<Lisposition 
 and settlement conveying heritage to trustees, and directing them as to its disixisal, 
 and afterwards execute a will revoking all former wills, and bequeathing his heritage 
 to other individuals, it has been held that in such a case the conveyance in the trust- 
 deed to the trustees is not revoked, but that the revocation of all wills operates as a revo- 
 cation of the directions in the trust-deed, and that the new bequests may receive effect as 
 new directions to the trustees; Punes' Trustees v. Purves' Executors. 1861. 23 D.. 812 
 — Boe V. Andcr.>;on, 1862, 24 D., 732— Campbell's Trustees v. Campbell, 1862, 24 D., 
 1821 — I'liillimore's Internal ional Law, vol. iv, p. 627, ef seq.
 
 028 INTEENATIONAL LAW § 1043- 
 
 \x' invalid in auotlicr cuiiutiT wIktc wi'itiug is not iv(|uire(l in such 
 transactions (//). 
 
 § 1044. But where the exclusion of parole hy the lex loci con- 
 tractus docs not arise from writing being an (essential solemnity, 
 and where, therefore, the absence of writing does not infer right to 
 resile, the opposite rule to that stated in the preceding section will 
 be applied ; for the exclusion of parole l)y the lex loci contractus is 
 merely a regulation as to the mode of proving the fact in issue, and 
 is entirely independent of the constitution of the right or obligation. 
 This })rinciple is well illustrated in international questions of pre- 
 scription, where it is settled that the court of the debtor's domicile 
 ought not to give effect to such prescriptions prevailing in the lex 
 loci contractus as merely limit the creditor's mode of proof by ex- 
 cluding parole of the contract (z). In the same way, although a 
 loan of money exceeding £8:6:8, contracted in Scotland, can by 
 the law of that country be proved only by the alleged debtor's writ 
 or oath, yet if it is sued upon in England, the plaintiff may lead 
 CAddence of the defendant's verbal acknowledgment of the debt, and 
 any other proof which is competent by English law («). 
 
 § 104;"). The distinction noticed in the two preceding sections 
 seems to apply e converso to those cases where the lex loci contrac- 
 tus admits, but the ?ea:;/ori excludes, parole proof. Thus a person 
 sued in Scotland to fulfil a contract which can be constituted ver- 
 bally in a foreign country, cannot plead that the contract is ineffec- 
 tual, because by Scotch law writing is essential to contracts of that 
 nature, when entered into in Scotland. In such a case the con- 
 tract, having been validly constituted by the final consent of the 
 parties according to the lex loci contractus^ is effectual everywhere, 
 and cannot be voided by importing into it a rule suspensive of the 
 constitution of similar contracts by the lex fori. That rule is limited 
 to contracts which were entered into with reference to the law 
 which prescribes it ; and it should not have the retro-active effect 
 of annulling a c(mtract which the parties entered into (as they were 
 entitled to do) without reference to its existence. Accordingly, if 
 a party, when sued in a Scotch court to implement an oljligation 
 wliicji is alleged to have been constituted verbally in a foreign 
 country, admits the fact on record or in his oath on reference, he 
 will be bound to implement tlie contract, provided by the lex loci 
 
 (ij) Boullenois. .vipra — Story, mipra — Biirfje, supra. (z) See on tliis, supra. 
 
 i> 52f), et seq. («} Per L. Brougliam in Don v. Liiipmuii, 18;?7, 2 Sh. iuul M'L.. 
 
 7-28.
 
 § 1U4(J. ItF.GAItDlXG DKEDS. 021) 
 
 contractus writing is not iciniirod fur its constitution; such admis- 
 sions Itcing in Scotland full proof of far-ts to tlio legal existence of 
 wliirli writing is not essential. In like manner the party's writ 
 dated c,c intcrvaUo, admitting that tluj contract had heen constituted 
 as a verhal hargain, would Ite effectual; whereas, if Scotland had 
 been the locus of the contract, a proper written constitution of it 
 would have l)een required. 
 
 § 1U4G. This view is supported liy the opinions of eminent ju- 
 rists {h) ; as well as hy a decision in whiih Lord Mackenzie (Ordi- 
 nary) exi)rc'ssly apjdied the principle, and the Court, in adhering 
 to his Lordship's judgment on other grounds, did n(jt dissent from 
 his view of the law (c). Opposed to these authorities is an old case 
 in which the Court refused to sustain prohate o])tained in England 
 by the executors under a nuncupative will ; because, although such 
 a will was valid in England, writing was essential as a solemnity to 
 the nomination of an executor in Scotland {d). This decision is 
 tlnwght to be erroneous (e)." 
 
 (6) 2 Boullenois, 459 -Story Confl., § 262—3 Burge Com., 100. 
 
 (c) Diile I'. Dumbarton Glass Co., 1829; 7 S., 369. Here a workman holding him- 
 self out as bound to an English company for a term of years, having in England agreed 
 verbally with a Scotch company to exchange with a servant in their emjjloyment ; in a 
 petition before the Sherift' to liavi' liiin ordained to fulfil his contract, parole of the com- 
 munings between the parties, as well as written evidence, was adduced without objection ; 
 and the Sheritf held tlie contract to have been constituted as for the full term. Lord 
 ]\Iackenzie, in sustaining the judgment, added a finding, " That the agreement took 
 place in England, by the law of which it ajipears that an agreement of service during 
 more years than one may be completed by oral words, if followed by actual commence- 
 ment of the service." There was no proof of English law ; and, accordingly, Lortls 
 Glenlee and Pitmilly (with whom the other judges concurred) observed, that they knew 
 nothing of that law as applying to the case ; but the latter judge added, " We have the 
 evidi-nce of what this man held out to be tlie law of England in this particular case ; 
 and that is sufiBcient to justify tJie finding of the Lord Ordinary on the point." 
 
 (d) Shaw V. Lewis, 1065, JL, 4494. The report bears, that the Lords " found tliat 
 the question was not here of the manner of probation of a nomination, in which case 
 they would have followed the law of the place ; but it was upon the constitution of the 
 essentials of a right, viz., a nomination, which, albeit it was certainly known to have 
 been by word ; yea, if it were ottered to be proven by the nearest of kin that they were 
 witnesses thereto ; yet the solemnity of writ not being interposed, the nomination is it- 
 self defective and null in substantialibus." {e) This decision is opposed to many 
 cases in which the law of the deceased's domicile has been held to regulate the question 
 who is his executor (see supra, 'i 633), and the views which the Court announced as to 
 being guided by that law in opposition to the lex fori in a matter of evidence are un- 
 doubtedly erroneous ; see gg 1035, 1048. 
 
 n It is thought that the law of the domicile mll^!t determine whether a man dies tes- 
 tate or intestate; Pnrves i-. Purv( s, 1861, 23 D., 830; per Lord Jiiistice-Clerk.
 
 OaO INTKI{NAT]()NAL LAW § 1047- 
 
 § 1047. J3ut, while the lex loci contractus regulates the consti- 
 tution of the obligation in the cases referred to in the two preced- 
 ino- sections, it is thought that that law does not determine the 
 mode of proof. The question which the court where the action is 
 raised has to decide is, whether a verbal contract in certain terms 
 was constituted ; and that they must do by their own rules of evi- 
 dence. The Scotcli lawyer is familiar with cases where obligations 
 may be constituted and discharged verbally, and yet where the 
 fact of constitution or discharge may be proved by the party's ad- 
 missions on record, or by his writ or oath, but not by parole ; as, 
 for example, in obligations for repayment of borrowed money (/), 
 in gratuitous promises {g), promises of marriage suhsequeufe copu- 
 la (h), in the discharge and renunciation of written obligations (/), 
 and many other cases. Applying the same rule to foreign obliga- 
 tions for which parole is admissible in the locus contractus, but not 
 in Scotland, it is thought that they may be proved in a Scotch court 
 by the debtor's admission on record, or by his writ or oath, but not 
 b}' parole. 
 
 § 1048. This mode of dealing with such cases seems to be the 
 only way in which the lex loci contractus and the lex fori can be 
 confined to their respective spheres of the constitution and the 
 proof of the contract. It is in complete accordance with the prin- 
 ciple now firmly estabhshed that such Scotch prescriptions as limit 
 the proof of the constitution and subsistence of certain obligations 
 to the defender's writ or oath, apply to foreign contracts, although 
 by the lex loci contractus these may be proved by parole (A-). Lord 
 Brougham's opinions in the leading case on that subject (/), and in 
 a kindred case of not less authority (?w), support the same principle, 
 and must now be held to have overruled some previous decisions in 
 which the opposite view had been taken {n). 
 
 § 1049. As to what country forms the locus contractus the rule 
 is, that it is the place wbere the contract received its essential ele- 
 
 (/) Supra, \\ 592, 593. {g) Supra, § 595. {h) Supra, ^ 541. 
 
 (0 Supra, U 606, 624. {k) Supra, I 526, et seq. [l) Don v. Lippraan, 
 
 1837, 2 Sh. and M'L., 682, «/;;ra, ib. («) Yates v. Thomson, 1835, 3 CI. and 
 
 Finn'., 544. («) In Glyn v. Johnston, 1830, 8 S., 889, parole of non-onerosity of 
 
 a bill was admitted, because the locus contractus was England, where such proof was ad- 
 missible. In Galbraith v. Cuningham, 1626, M., 4430, and L. Balbirnie v. L. Urtill, 
 1633, M., 4431, parole was admitted in Scotland to prove payment of certain bonds, on 
 the ground that the payment was alleged to have been made in a country where that 
 mode of proof was admissible. These cases are refuted by Lord Brougham in Don v. 
 Lippman, supra. Still more erroneous were the views of the C'ourt in the case of Shaw 
 V. Lewis, supra, J 1046.
 
 § [{)'){). REGAUDIN-; IJEEDS. 031 
 
 incut of cunseut. Accordingly, in a unilateral obligation it is the 
 country in which the debtor resided when lie granted the deed (o). 
 I So in a contract standing on offer and acceptance, it is tho country 
 
 ' in which the acceptor resided (p) ; and it is the country of the ac- 
 
 ceptor's domicile in questions between the drawer and acceptor ot" a 
 bill of exchange (r)}'^ An indc^rsation by a foreign drawer or payee 
 does not follow the locus of tho bill ; but, in an action of recourse 
 against him, it is a foreign contract (.s). 
 
 Obligations contracted in Scotland by the Scotch agent of a f(j- 
 reigii company, who has power to bind his principals, are Scotch 
 contracts as much as if the real ol)ligants had been domiciled in 
 this country (t). But where an agent is merely authorised to re- 
 ceive proposals for contracts and to transmit them to his princijjals 
 — the contract being constituted by his delivering to the other 
 party a deed executed by the principals in the foreign country — tlie 
 latter, and not the country of the agent's residence, is the locus con- 
 tractus («). 
 
 § 1050. In the foregoing sections it has been assumed that the 
 locus contractus is also the country where the obligation has to be 
 performed. Where it is not, the contract will be sustained if it is 
 valid according to the lex loci solutionis, the parties being presumed 
 to have contracted with reference to that law (cc). There seems 
 not to be any decision, however, in which a contract valid by the 
 
 (o) Robertson v. Burdekin, 1843, D., 17. (jo) 3 Burge Com., 753. 
 
 (r) Reynolds v. Syme, 1774, M., loDS— M'Alpines v. Parsons, 1792, M.. 161'7— 
 Stratheru v. Mastorraan &Co., 1850, 12 D., 1087—3 Burge, 755. 
 
 («) Story on Bills, jJ^ 157, 176— Don v. Lippiuan, 1837, 2 Sh. and M'L., 737 ; cor- 
 recting Ricknian v. M'Laclilan, 1827, 5 S., 700, and Royal Bank v. Smith & Co., 20th 
 January 1813, F. C. (0 Mills v. Albion Ins. Co., 1828, 6 S.. 409 ; affd.. 
 
 3 W. S., 218. (u) Parkeu v. R. Exchange As. Co., 1846, 8 D., 365. 
 
 (z) Story Confl., § 280, et «cy.— Story on Bills, g§ 129, 147—3 Burge. 771, 772— 
 Robinson v. Bland, 1760, 2 Burr... 1077. 
 
 •2 It i.s thought that, as a general rule, the locus contractus of a bill, in questions be- 
 tween drawer and acceptor, is the place where the acceptor signed it, thougli not his 
 domicile ; Mackenzie v. Hall, 1854, 17 D., 104. There the acceptor was a domiciled 
 Scotchman, but tho locus contractus was England. In Don v. Lippman, supra, the ac- 
 ceptor of the bill was a domiciled Scotchman, but there was no douht tliat the locus con- 
 tractus was France, whori> he signed tho bill ; see Story's Confl. of Laws, 5th cd., ? 314 
 — Phillimore's International Law, iv, p. 506. Of course tliis will not alfeet ijurstions 
 of remedy when a bill is sued on in a Scotch Court. Sergeant Byles lays it down, tliat 
 thv locus solutionis is to be deemed the locus contractus; Byles on Bills, 370. Tliis 
 seems, however, not consistent with Strathern v. Masterman, supra, where a bill acctpt- 
 ed in Scotland, but payable in England, wa.s held to be a Scotch bill. 
 
 VOL. L 2 S
 
 632 
 
 INTERNATIONAL LAW REGARDING DEEDS. 
 
 § 1050. 
 
 le^ loci contractus has fallen from being deficient in solemnities 
 prescribed by the lex loci solutionis. The validity of snch a con- 
 tract may be maintained on the presumption that the parties meant 
 to be regulated by the leos loci contractus. They were, perhaps, not 
 aware of the formalities required in the locus solutionis.
 
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