case of the Earl of Crawfurd,' the report stating that sundrie decreets 'beand obtenit against ony man, gif the obtainaris thairof cause arrest 'his maillis, fermis, and duties, in his tenants' hands, the tenants aucht ' and sould pay first to him quha obtenit the first decreet; and he beand fully and completely payit, they sould make payment to him quha 'obtenit the second decreet,' and so on. CHAPTER IV. CLAUSE. THE peculiar province of the testing-clause in a deed is to state those TESTINGparticulars which, in addition to the subscription of the party and witnesses, are necessary to make the deed in law a probative writing, viz., the number of the pages of which the deed, if written on more sheets than one, consists, the marginal additions, erasures, or alterations made before subscription, if any, and the precise place or places where these occur, the name and designation of the writer, and the names and designations of the witnesses. By universal practice, the number of the pages, even when the deed is written wholly on a single sheet, and the place and date of subscription, are likewise mentioned in this clause. And, when the deed is written on stamped paper, it is usual to say so; but in deeds wholly written, it is not essential, in point of solemnity, to specify these last-named particulars, viz., the number of the pages when there is only one sheet, the place, the date, and the fact of the paper being stamped. When the deed is partly written, partly printed or engraved, the Titles Acts of 1858 and 1860 introduce certain additional solemnities, which will be noticed by and bye. The following is an example of an ordinary testing-clause in a deed wholly written: 'In ' witness whereof I have subscribed these presents, consisting of this and 'the (nine) preceding pages, with a marginal addition on page first, all 'written on stamped paper by A. B., residing in Edinburgh, clerk to C. 'D., Writer to the Signet (the word "ten," on the second line from the top of page third, being delete before subscription) At Edinburgh, the 1st day of November 1859, before these witnesses, E. F. accountant, and G. H. architect, both residing in Edinburgh.' The clause here given points out the usual manner of authenticating marginal additions and deletions; and where erasures or other alterations occur, they will be similarly dealt with. As to erasures, I may remind you of the case of Reid, where an attempt was made unsuccessfully to do away with the effect of erasures occurring in the Christian name of the disponee throughout the disposition and settlement of an estate, by introducing a few explanatory words in the testing-clause. The proper mode of proceeding in any similar case is to write over the deed as altered, supposing 1 Earl of Crawfurd, 5th June 1538, reported by Balfour, p. 391; and Ross, i. 102. 2 Reid, March 1835, 13 Sh. 619; affirmed 30th July 1840, 1 Robinson's App. 183. DATE OF COM- always that time permits. If that course is not attainable, a declaration ought to be introduced in the deed before subscription, pointing out all the erasures, and declaring them to have been made before subscription. But, even after so authenticating the deed, a fresh deed should if possible be made out; and when it is executed and beyond the reach of reduction, as on deathbed, the first deed should be destroyed. A party's settlement, and the title to an estate, should never be allowed to stand on a deed so bungled as the deed in that case, even if the alterations in it are perfectly authenticated. In correct practice, the testing-clause is completed, down to the mention of the place of subscription, as soon as the deed is engrossed, and compared with the draft, and before it is subscribed; the comparison enabling the writer to add marginal additions, or to make corrections if required. And the remainder of the clause, containing the place and date of subscription, and the witnesses' names and designations, or the whole clause, as the case may be, ought to be inserted immediately upon the delivery of the deed, if inter vivos, or upon its execution, if mortis causâ. Usually this is so done. The delivery of an ordinary deed, inter vivos, duly executed to the grantee, is a warrant to him to get the testingclause completed. Where the deed is mortis causa, the immediate completion of the testing-clause may be critically important. In the case of Condie,1 some of the Judges laid great stress on the fact, that the testingclauses in two mortis causâ deeds under challenge had been completed immediately after subscription. But though the deed is not complete or probative until the testing-clause is written up, because until then the statutory solemnities of authentication are not fully satisfied,-yet, when a bond and disposition in security was found in all respects regular and complete, and moreover was in the hands of an onerous assignee, it was held irrelevant to aver, in objection to the instrument of sasine following upon it, that the bond had not been completed before the sasine was passed. Lord Moncreiff, Ordinary, in a valuable note to his interlocutor in this case, says, 'When the clause has been filled up, whether at the 'time or afterwards, it concludes the matter, and must be taken as the 'due completion of the instrument at its date.' And in the recent case of Rait,3 it was held no objection to an alleged tender of the transfer of bank stock that the testing-clause of the deed of transfer was not filled up at the time of the tender; the deed being then duly executed by the seller. There has been great laxity of practice among professional men in regard to the completion of this clause, and much latitude has been allowed by the Court in reference to the time at which it can be written. In one case, it was found competent to complete the testing-clause of a deed, which the parties were under obligation to grant, at the dis 1 Condie, 26th June 1823, 2 Sh. 432. 2 Leith Banking Co., 22d Jan. 1836, 14 Sh. 332. 3 Rait, 15th June 1859, 21 D. 965. 4 Blair, 15th Nov. 1827, 6 Sh. 51. tance of thirty-two years from the date of the deed, and after certain of the parties to the deed were dead. In another case,' it happened that, in the testing-clause of a bond written by James Fraser, the secretary of the bank, one of the witnesses had been originally named and designed Robert Gibson, his servant,' in place of Robert Dickson, his servant.' The mistake being discovered after a considerable interval of time, and when certain of the parties to the bond had become bankrupt, the following addition was made to the testing-clause: 'I say Robert Dickson, his servant; the word "Gibson" being a chirographical error of the 'writer in filling up the last line of the testing-clause, all written by the 6 'said James Fraser.' The Court unanimously sustained the bond as so corrected. In a later case, where an onerous deed had been executed by the subscription of the parties and of witnesses, but without a testingclause, the grantee was found entitled to insert that clause, ex post facto, (sufficient space for the purpose having been left above the granter's subscription); and in the circuinstances of that case it was held irrelevant to aver that at the time of execution neither of the parties intended that the deed should have a testing-clause. It is not to be understood, however, that as a general rule an averment to the above effect cannot be made. In the case of M'Neillie, Lord Ivory spoke of Shaw's as a most extraordinary case; and Lord Deas expressed his understanding that it was not intended there to decide an abstract point. The right to add a testing-clause to a document must therefore in each case be held as depending on its own circumstances. And the power of addition to or alteration on the testing-clause is at an end after the deed has been made the subject of an interlocutor; and equally so when, being entered in a register for preservation or execution, it is permanently in the custody of the keeper of the register. It is then in the hands of the Court or keeper of the record. 3 PRINTED. By the Titles to Land Acts of 1858 and 1860, it is made essential DEEDS PARTLY as a solemnity in the case of deeds partly printed or engraved, 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 written portions of the body of the deed, writ, or instrument, and 'of the written portions of the testing-clause, shall be expressed at length in writing. It will be observed that these enactments introduce several solemnities of authentication, in the case of deeds depending on the above Acts for their validity, in addition to the solemnities enacted as to deeds wholly written. The testing-clause ought all to be written plainly, without crowding, and above the signatures of the parties and witnesses. Therefore, when 1 Bank of Scotland, 17th Feb. 1790, M. 16,909. 2 Shaw, 6th March 1851, 13 D. 877. 3 M'Neillie, 8th July 1858, 20 D. 1229; and 30 Jurist, 727. 4 21 & 22 Vict. c. 76, and 23 & 24 Vict. c. 143. FOREIGN MATTER OUGHT parties are signing, care should be taken to have sufficient space left vacant above their signatures for the insertion of all that has to go into the testing-clause. A deed in all respects well adjusted in these particulars is entitled to be looked upon with more favour than one which exhibits irregularity or even clumsiness in its completion. A deed in the latter condition at once suggests a style of examination or inquiry for which there may be no real occasion, and which is never thought of when the writer's duties have been well executed. These remarks will be enforced by reference to a case, where the granter of a deed having signed too close to the commencement of the testing-clause, it had been thought necessary to erase some words, replace them in closer writing, crowd in the date above the subscription, and write the names and designations of the witnesses lower down, in such manner, that had the two lines containing them been extended, the first would have passed through the subscription of the party, and the second would have been below it. There was, however, no allegation of fraud, and the deed was sustained. Mr. Duff' says, 'the laxity of practice indicated by the occurrence of such cases is carefully to be avoided. Their decision depends on circumstances, and the conveyancer ought by no means 'to calculate on similar views being entertained, even in similar circum'stances.' As a general rule, all matter foreign to the proper purpose of the clause ought carefully to be excluded. It is clear that a testing-clause containing such foreign matter, and completed ex intervallo, would be entitled to no faith as compared with one completed without delay. When an important omission occurs in a deed, the right course is to transcribe the deed, in whole or in part, with the necessary alteration embodied in it. Sometimes, however, it is unavoidable to introduce in the testing-clause an addition to the deed not appropriate to that clause; and if the addition be made in competent form, and duly authenticated, effect is not denied to it as part of the deed. Two cases may be cited which support this doctrine, and certainly do not encourage the practice. (1.) A trust-disposition and settlement by John Hutchison granted, inter alia, provisions in favour of Margaret Coldstream, his wife, which were declared to be in lieu of her legal provisions of terce and jus relicto. In the body of the deed Hutchison alone was stated as the party granting. His wife was not named or referred to, either as a granter or consenter, down to the testing-clause. That clause, commencing in the usual style, 'In witness whereof, these 'presents, written on this and the nine preceding pages of stamped paper, 'by,' etc., then ran as follows: are subscribed by me, and by the said Margaret Coldstream, my spouse, in token of her consent to, and ap'proval of, this deed, and all the clauses therein contained, at Dundee,' etc. The remainder was in regular form. The deed was duly signed by both parties; the whole, including the testing-clause, was in one and 1 Dury, 11th March 1753, M. 16,936. 2 Duff's Feudal Conveyancing, p. 19. the same handwriting. The testing-clause bore, not that 'the foregoing deed,' that is, what had been already written, but that these presents,' that is, the whole document, 'written by,' etc., were duly signed, and the clause likewise bore that the witnesses attested the subscriptions of both parties. In these circumstances, it was argued that the words expressive of the object of the wife's subscription were part of the deed and not of the testing-clause, and that the writer of these words was not named and designed either in the deed or testing-clause; and the Lord Ordinary (Ivory) found that in so far as the deed bore to be subscribed by the wife," in token of her consent," etc. (as above), it was not, as the deed of the said Margaret Coldstream, probative in terms of law; and that the same falls to be given effect to, exclusively, as the deed of the said 'John Hutchison.' The Court, however, altered, and found that the deed was validly and regularly executed by Margaret Coldstream, and was probative in terms of law as her deed. A judgment to the same effect was very recently pronounced.2 (2.) The other case on this point is that of Kelso, where a deed of consent, produced with an application under the Entail Amendment Act, stated the essential fact, that the heir of entail next in succession to the petitioning heir was twenty-five years of age, in a declaration introduced in the testing-clause,-not, as is usual, and as intended in the Act of Sederunt of 18th November 1848, immediately after the designation of the consenting heir. The Court sustained the deed. It is useful to have these cases in view, because accidental omissions in deeds are not always to be avoided; and, when a mode of correction. has been sustained in Court, it is generally safe to follow it under similar circumstances, if there is not time to write the deed of new. The case of Johnstone will suggest that the important fact of a wife being a party to her husband's settlement, and the statement of the purpose of her subscription of the deed, should not be left to make its appearance only in the testing-clause. She ought to be named as a party, and her consent and approval of the terms of the settlement as affecting her ought to be set forth in the most formal manner in the body of the deed. This is the usual course, and, when it is followed, no question can arise as to these particulars being part of the deed or not. In Kelso's case, the omission supplied in the testing-clause was obviously accidental; probably arising from the deed having been drawn without book. All such additions, however, you will observe, require authentication according to the same rules as those applicable to the body of the deed. The addition must be written before the deed is subscribed, and the testing-clause must be expressed so as to show who is the writer of the addition as well as of the deed, and to give the writer's name and designation. Subscription of the party and witnesses, after the addition is made, will authenticate the whole. And the general principle on which the Court appear to have 1 Johnstone, 30th June 1843, 5 D. 1297. 3 Kelso, 8th March 1850, 12 D. 918. VOL. I. 2 Dunlop, 2d June 1865, 3 Macph. (House of Lords Reports) 46. P |