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Mr William Sharp, Sheriff-clerk of Brechin, pursued by one Stewart, for exhibition of letters of relaxation, with the executions thereof, which were alleged delivered to the said clerk, to be registered anno 1616, the clerk produced the letters, but denied that ever he saw the executions. The pursuer offered him to prove the delivery of the executions to the clerk, by witnesses. The Lords would not admit such probation against a clerk or notary, but his own oath or protocol.
Auchinleck, MS. p. 156.*** Durie reports this case:
In an action pursued against the clerk, for delivery to a party, of letters and executions of relaxation of him from the horn, which were given in to be registrated, conform to the act of Parliament; and the clerk exhibiting the letters, and denying that ever any execution, or relaxation, was given in to him; and he contending, that no other probation by witnesses could be received against him, upon that summons, but his oath only, and that it ought not otherwise to be admitted to be proved, in respect of the dangerous consequence which might otherwise ensue against public officers, if the like pursuits were sustained to be proved otherwise than by oath; for contra notarios negantes no probation is admissable, but their own oaths, and their protocols, therefore the like ought to be in this case, especially where there have three full years intervened betwixt the alleged time of the delivery of the letters, and the intenting of this pursuit, during the whole intervening time, the party never seeking his letters, nor enquiring therefor, as he ought to have done. The Lords found, that they would examine the clerk, he being present, ex officio, in presence of the witnesses whom the pursuer intended to use in this matter, before they would determine whether it was probable by witnesses or not.
