summons raised against him' William Munro ;' whereas his full name was 'William John Munro.' The defective naming was held in the circumstances immaterial; but the case bears on a point of very considerable importance to professional men; I mean the subscription of their own names. It was successfully pleaded, in the above case, that the objection of misnomer could not be taken by Munro, because from his mode of subscribing his name, as appearing on the document which formed the ground of action, it was impossible to imagine that the letter 'J' was interposed between William' and 'Munro.' On this point Lord Glenlee said, 'In the present case, the defender' (Munro) 'appears to have misled the pursuer by his signature, which, to any ordinary 'reading, is just "William Munro." Lord Justice Clerk Boyle.-'I 'take much the same view. If he had signed "William John" in full, 'it would have required more consideration; but there is merely William ' with a flourish, which I never could take for the letter 'J,' and, if I 'had got a letter signed this way, I would have addressed the answer to 'William Munro.' The point, moreover, is especially noticed in the interlocutor of Court, which proceeds, inter alia, in respect that it appears from the writing referred to and produced, that the manner in 'which the name subscribed thereto is written might reasonably lead 'the pursuer to believe that his name was simply "William Munro," etc. This case has been the more fully quoted, in order to illustrate the importance of a signature so plain and legible as not to be mistaken. The object of the subscription being to indicate the name of the party, it is a great error either to be careless on this point, or to cultivate singularity of subscription. In some classes of deeds the introductory clause does not name and design the granter. These are deeds by a number of parties whose names cannot be given, or, it may be, are not known at the time the deed is engrossed for signature; for example, deeds of accession by creditors or their mandatories to trust-deeds by debtors for their behoof; deeds of constitution of joint-stock companies; composition-contracts in sequestrations, or the like. It is usual in such deeds, where the same character belongs to all the subscribers, to express that character in this clause; as, for example, 'We, the subscribers, creditors, or mandatories 'for creditors, of A. B., etc., in debts entitled to the benefit of the trust, 'created by the trust-disposition after narrated,' etc. The full names and designations are inserted, in these cases, in the testing clause. When the deed is granted by tutors, factors, trustees, or others, acting under special powers, the narrative or introductory clause will set forth the character of the granters, and will also set forth, or duly refer to, the deeds and powers under which they act, as well as the granters' own names and designations. With the exception of notaries, no person in Scotland requires to CHANGE OF obtain judicial authority for the alteration of his surname. In Kinloch's 1 Young, 14th January 1835, 13 Sh. 262; Kiuloch, 13th Dec. 1853, 16 D. 197. SURNAME. CONSIDERATION OF A DEED. case, Lord Cowan, whose judgment, as Ordinary, was acquiesced in, says, The true principle is, that a person may sue, or be sued, under the ' name by which he is at the time called and known; which he uses in 'his contracts and transactions with the public, and by means of which, as a sufficient designation of him,. his identity is rendered indisputable.' The establishment of the party's identity is the great essential. The consideration, or cause of granting a deed, is usually specified in this clause. In reading the cases before referred to, under the head of 'error' and 'misrepresentation," you cannot fail to see the essential value of strict and sometimes minute accuracy in the construction or preparation of the inductive or narrative clause; but, having examined these cases so lately, it is not necessary to enter upon any details regarding them again at this place. The provisions of the Stamp Act of 1808, as to the statement of the consideration or cause of granting 'conveyances' of the description there specified, and which statement is usually made in the narrative or introductory clause, have already been stated or referred to. Where that Act does not apply, the statement may or may not be expressed, without involving liability to penalties; but when the nature of the warrandice granted is not expressed, and is left to implication, it is important to state the consideration, because liability in warrandice will be absolute, or from fact and deed only, according as the deed is granted for onerous causes, or gratuitously; and no question on that point ought to occur through defect or omission in the preparation of the deed. The cause of granting ought to be expressed as briefly as possible; but always so as to account for the act done, or the agreement entered into, by the deed, and likewise to prepare for any burdens or conditions created by the deed. One or two examples will explain what should be its general nature. In a disposition of lands, sold by private bargain, the deed will simply narrate the payment of the agreed-on price. When the lands are sold under powers in a bond and disposition in security, with reference to which, notice, and requisition of payment, advertisement of the intended sale, and public roup, have been required, the deed will recite the power of sale, the notices and requisitions, advertisements, roup, and purchase, as well as the payment of the price. If the deed is a conveyance by trustees to the residuary legatee under a trust-deed, of the reversion of the trust-estate, the narrative will express the purposes of the trust, and the performance of the primary purposes, whereby it has become incumbent on the trustees. to denude of the residue, in fulfilment of the ultimate purpose, and for winding up the trust. And if all the purposes are not completely fulfilled, for instance, if some annuity is still subsisting, or a legacy unpaid, and if the conveyance is to declare the annuity or legacy a real burden on the reversion of the estate, the narrative will express that such is the arrangement. 1 See particularly Ewen, as reversed, 4 Wil. & Sh. 346; Dickson, 16 D. 586; Purdom, 19 D. 206; and Falconer, 1 CHAPTER II. WARRANDICE is the obligation of the granter of any conveyance, or Warrandice. other deed, that the same and the right thereby granted shall be good and effectual to the grantee; implying, or expressing, that-in case of reduction of the deed, or of eviction of the subject contained in it, in whole or in part, on account of any fact or deed of the granter, or of his predecessors, or any defect in the granter's title, or it may be on any ground not attributable to the grantee,-the granter shall make good the loss or damage thence arising to the grantee. The nature and extent of the warrandice granted is usually expressed in the deed, in connexion with which it arises; in which case, the obligation or clause of warrandice speaks for itself as to these points; but warrandice, when not expressed, will be implied, and its nature and extent will then depend on the nature of the relative transaction. The nature and extent of the obligation, in like manner, depends on the relative transaction, when the obligation is, generally, to warrant the deed or right,-except in the single case of the clause of warrandice in dispositions, in the form introduced by the Conveyancing Acts of 1847; which, though general in its terms, has, by these Acts, a specific meaning, when not qualified. But the ordinary warrandice applicable to any transaction can be expressly limited or qualified according to the direction of the parties. Warrandice is either personal or real. Of the latter we shall treat, in connexion with the contract of excambion, being almost the only deed now in common use, with reference to which we meet with such warrandice. Personal warrandice, when expressed, may be varied in many PERSONAL ways; when implied, and generally when expressed, it is of three kinds: WARRANDICE. 1. Against future voluntary acts and deeds of contravention, to be done by the granter. 2. Against all facts and deeds of contravention done, or to be done, by the granter, whether past or future; and 3. At all hands and against all mortals, or absolute; extending to every ground, not attributable to the act or neglect of the grantee,-on which the deed or right granted can be impeached. Warrandice can be so expressed as to exclude any claim founded on implied warrandice. Contracting parties can regulate such a matter according to their own absolute discretion. Warrandice of the first class, that is, against future voluntary contraventions, is implied and usually expressed in donations, in which the granter gives, or is understood to give, just what he himself has. The deed here is said to be gratuitous as to the granter, and lucrative as to the grantee. Accordingly, such warrandice does not authorize recourse against past deeds of the donor, nor even against future deeds which the WARRANDICE IN ASSIGNA- FROM FACT AND DEED. 3 donor was legally bound to grant. These are future in letter only.1 A future voluntary deed, in contravention of a donation, amounts to a fraud, and clearly infers recourse." But if donations are given with warrandice from facts and deeds past as well as future, or with absolute warrandice, the express obligation will receive effect according to its own terms. In Coventry's case, a father disponed lands to his younger son by a mortis causâ disposition, containing clause of absolute warrandice, a degree of warrandice not usual in such deeds. Of the same date, the father disponed his whole other estate to his elder son, under burden of paying all debts due by him at the time of his death. A debt was subsequently contracted by the father, partly on the security of the lands conveyed to the younger son,--and for a portion of which the younger son would have been liable, if the disposition in his favour had contained no clause of warrandice; but the elder son was found liable to relieve the younger of the whole debt, under the clause of absolute warrandice contained in the disposition to the younger son. The cases noted suggest the necessity of caution in reference to the introduction of unusual clauses in testamentary deeds; and, specially, of taking care not to deal with the clause of warrandice as one of mere style. Moreover, when any one imposes the burden of a debt in cumulo on lands which he has disponed by mortis causâ deeds to two or more disponees, he ought always to make a codicil or addition to his mortis causâ dispositions, declaring in what proportions the cumulo debt is to affect the disponees and their lands respectively, or that his general estate is to bear the burden of the debt, if such be his intention. Warrandice of the second class, that is, from facts and deeds done or to be done, is implied, and usually is expressly granted, in ordinary assignations of debts. But, besides the warrandice so implied or expressed in such deeds, there is a further warrandice implied when any one grants an assignation to a debt, viz., that the debt is subsisting, and due by the alleged debtor to the cedent at the time of granting the assignation. The above warrandice, however, in the case of the assignation of a debt, does not infer any obligation on the granter that the debtor is solvent. All that is implied is the validity of the debt. In case of the debtor's insolvency, the assignee's loss arises, not from any defect in the debt assigned, but from the insolvency or disability of the debtor.' Neither does absolute warrandice, in the case of the assignation of a debt or sum assigned, nor warrandice that the same shall be effectual,' import the solvency of the debtor.5 Such warrandice merely imports 'debitum subesse;' that the deed assigned cannot be reduced, and that the cedent, and no other, has right to it. 6 Erskine says, that warrandice from facts and deeds done or to be done is usually granted, when a right with doubtful title, or of doubtful value, is conveyed by transaction for a compounded sum, or where the cause of granting, though onerous, is not adequate to the value of the subject; in which cases, such warrandice is implied though not expressed. In such cases, I think the usual course is either to stipulate that no warrandice is granted, or to limit the warrandice to the sum paid for the conveyance; where a debt is assigned, unless the obligation of warrandice be limited, the cedent's liability, in case of eviction by any one having a preferable title, will extend to the full amount of the debt.1 In the case of the conveyance of lands, an obligation of warrandice from the disponer's facts and deeds allenarly is contrary to what is usual. It seems to imply a special agreement; and upon eviction, in respect of a fact or deed, not of the disponer, no claim of recourse arises against the disponer.2 WARRANDICE. Absolute warrandice is implied, and usually is expressed, in disposi- ABSOLUTE tions of lands, for an onerous cause; also in leases, and various other writs. The clause, I grant warrandice,' in dispositions of lands, in the form introduced by the Conveyancing Acts of 1847,3 imports, as provided by these Acts, unless specially qualified, absolute warrandice as regards the lands and writs thereof, and warrandice from facts and deeds, as regards the rents. It has been said that no warrandice is implied against mere con- CONSENTERS. senters to a disposition, whose concurrence simply imports the conveyance of all their right and claim, tantum et tale; or an obligation not to use any right they have in opposition to the right of the disponee; but I think consenters will in some cases be liable in simple warrandice, that is, not to grant any future right, founded on the title which they had when consenting, and in contravention of what is implied in their consent. The purchaser, however, takes his lands subject to the risk of losses or burdens falling thereon after the date of the purchase, and which had no cause anterior to it; for example, by fatality. The rule here is, res perit domino. Loss may arise also by a public Statute passed after the sale, imposing a new burden, or introducing a new ground of eviction. Such loss infers no contravention of the seller's warrandice. But the result appears to be different, if eviction arise under a public law, existing prior to the sale; at least where the warrandice was contained in a conveyance of church lands, out of which a glebe was subsequently designed.5 WARRANDICE In case of eviction, the obligation of warrandice, if subject to no limi- EFFECT OF tation, express or implied, founds the grantee in an action of recourse against the granter for the full damage he sustains, as at the date of the |