Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION III.

Public Instrument, how far Probative.
Subject_3 SECT. I.

Messengers Execution.

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v.
Lord Renton

Date: 18 January 1631
Case No. No 361.

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In a pursuit against a Sheriff for disobeying a charge to take a rebel, and the messenger's execution being produced per modum probationis, bearing, that the rebel was sitting by the Sheriff when the charge was given, and was pointed out to him by the messenger, which was offered to be adminiculated by the instrumentary witnesses; the Lords, notwithstanding, preferred the defender, offering to prove, by most famous witnesses, that the rebel was gone before the charge was given, unless the pursuer would cendescend upon as famous witnesses, the instrumentary witnesses being the pursuer's near relations; for they respected not the execution, which bore, that the messenger pointed out the rebel, as being no part of his duty, which was only to give a charge, and not to insert an extraneous narrative. But if the question had been, Whether a charge was de facto given or not, no witnesses would have been receivable, but the instrumentary witnesses only.

Fol. Dic. v. 2. p. 242. Spottiswood.

*** This case is No 362. p. 12496.