'were, which condescendence was to be supported by the testimony of the witnesses themselves, if they were still alive; or, if they were dead, and had subscribed as witnesses, by comparing their handwriting in ' other deeds with their subscription as appearing in the deed under 'challenge.' On this point, Erskine refers to the case of Colvill, where a variety of adminicles were admitted for proving the grantor's subscription; and to various other cases. The practice of admitting a condescendence continued till the passing of the Act 1681, cap. 5, the authorship of which is generally ascribed to Lord Stair, and which is the most important of the Statutes now in force, in regard to the mode of authenticating deeds. NEW SOLEM- c. 179. In the meantime, a new solemnity was introduced by the Act 1593, cap. 179, which recites that 'falsettes increasis daily within this Realme; DUCED BY 1593, ' And specially, be the writing of the bodies of the contractes, chartouris, 'obligationes, reversiones, assignationes, and all utheris writtes and evi'dentes, be the hand-writtes of sik persones, as ar not commonly knawen, ' and ar not commoun notares, nor bruikes na commoun office, and gif the writer were knawin the samine wald give great light to the tryall of the truth of the falsett of the said writ and evident;' therefore it is declared that all original charters, contracts, and other writs, to be made thereafter, shall make special mention, in the end thereof, before the inserting of the witnesses therein, of the name, surname, and particular remaining place, diocese, and other denomination of the writer of the body of the writ, otherwise the same to make no faith, etc. Here we have introduced, as a statutory requisite, a safeguard which was not unknown elsewhere or even amongst ourselves in more ancient times. I have already referred to the case of the Will of Ermenthruda, given by Mabillon, in which one of the witnesses names himself as the writer. The Charter by King Duncan of Scotland, given by Anderson, is another instance, as it has affixed to it the cross of Scriptoris Grentonis; and in the Indian Deed of Sale already noticed, the name and designation of the writer are particularly mentioned. The provision for naming and designing the writer of the deed, thus introduced in Scotland, was calculated at the time, and is still held by many Conveyancers, to be a valuable preventive of the fabrication of deeds. The view that it is so is perhaps strengthened by some very remarkable cases which have recently occurred in England, in connexion with the alleged forgery of a Will professing to convey large estates in that country. It appears, however, that the Act of 1593 was not enforced, any more than the other Acts above detailed, with that strictness which, in regard to simple solemnities of form, is so essential to the due and proper working of a system of deeds. For although the Act of 1593 was so express in regard to the insertion of the name, surname, and designation of the writer of the body of the writ, and that under pain of nullity, the Court allowed condescendences to be received in reference to deeds 1 Colville, 15th July, 1664, M. 16,882. WHOLE SUB JECT OF AU THENTICATION DEALT WITH IN 1681, c. 5. AUTHORITY TO WRITE DEEDS 1696, c. 15. defective in these particulars, to the effect of supplying, by extrinsic evidence, what the deed itself ought to have set forth; and with the result of having deeds sustained, which, by express enactment, were to make no faith. This want of regularity continued for nearly a century. The Legislature had, perhaps, at first been in advance of the education of the people; but the case came to be altered; and, the further interference of Parlia ment having become necessary for enforcing what was useful in the older Statutes, and developing their principles and spirit, the Act 1681, cap. 5, before referred to, was passed, by which, on the narrative that by the Custom introduced when writting was not so ordinary, Witnesses insert in Writs, although not subscribing, are probative Witnesses, and by their forgetfulness may easily disown their being Witnesses; for remeed whereof' it is enacted, 'that only subscribing Witnesses, in writs to be subscribed by any partie hereafter, shall be probative, and not the wit'nesses 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 suppliable by condescending upon the Writter, or the designation of the Writter and Witnesses.' There then follows a most important further enactment, 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 warrant to a Nottar or Nottars 'to subscribe for him; and, in evidence thereof, touch the Nottar's pen; or that the partie did, at the time of the Witnesses subscribing, acknow'ledge his subscription; otherwise, the said Witnesses shall be repute ' and punished as accessorie to forgerie.' The next Act passed in connexion with the present subject is that of 1696, cap. 15. Up to this time a deed was written on the face or broadside of one sheet of paper or parchment, or of two or more sheets of paper battered together. In either case, a deed written on paper was usually. folded or rolled up. All such deeds were subscribed by the parties at the end, and when consisting of two or more sheets they were also sidescribed at the joinings of the sheets, as marginal additions now are. The same practice was observed in reference to the records of Courts, whence we still speak of the Rolls of Court,' 'the Master of the Rolls,' and the Custos Rotulorum, that is, the Keeper of the County Records in England. For removing the great trouble and inconvenience thereby arising in finding out clauses and passages in long contracts, decreets, etc., consisting of many sheets, it was by this Act ordained that it should be free thereafter for any person who had any contract, decreet, etc., to write, to choose whether he would have the same written in sheets battered together as formerly, or, by way of book, in leaves of paper, either in folio or quarto; Providing that, if they be written bookways, every page be marked by the number first, second, etc., and signed as the margins were before: and that the end of the last page make mention how many pages are therein contained, in which page only witnesses are to sign, in writs and securities where witnesses are required by law and which 'writs and securities, being written bookways, marked and signed as said 'is,' are declared to be as valid and formal as if they were written on several sheets battered together, and signed on the margin, according to 'the present custom.' A similar option had been allowed, in reference to Crown charters, by the Act 1672, cap. 7; and, though these Acts were only permissive, the form which they authorized was very speedily followed universally. PAGES DIS. c. 89. 185-6 We have had occasion to remark on the irregularity exhibited in the observance of new solemnities introduced by Statutes; and the Act of 1696 formed no exception; nor can Conveyancers of modern times claim to have been more careful than their predecessors in this particular instance. The Act, in the most distinct and express manner, orders the marking of 'page first,' as well as of the succeeding pages; but, by an almost universal consent, the first page of deeds was left unmarked. This communis error exposed deeds, in general, to the risk of exception; and, to prevent the great confusion which would have arisen from the MARKING OF literal enforcement of the law, the Act 19 and 20 Vict. cap. 89 was PENSED WITH BY passed, declaring it not competent to challenge any deed or writing on 19 & 20 VICT. the ground that the pages thereof are not marked by numbers, and no longer necessary to mark the pages of any deed or writing by numbers; which enactment, however, is not to affect the provision of the Act of 1696, already noticed (being the Act which introduced the marking of the pages), or of any other Act of Parliament, as to mentioning the number of the pages of which the deed consists, or the provision as to subscribing each page of the deed, or any other provision of the Act of 1696. The marking of the pages of deeds by their numbers is therefore no longer a necessary solemnity; and, though such marking continues. for convenience, the abolition of the penalty attached to its omission has, I am sure, the approval of the whole legal profession in Scotland. VOL. I. C SUBSCRIPTION OF PARTIES WHO CHAPTER II. I HAVE now detailed the enactments applicable to the execution of ordinary deeds by private parties. We shall, by and bye, in connexion with this or other branches of the Course, have to consider the solemnities in reference to the authentication of Instruments of Sasine, Messengers' Executions, Decreets of Court, Office Copies or Extracts of Deeds, and some other Writings; and I shall have to call your attention to the Acts of 1860-61, as to the authentication of Wills, or other Writings relating to personal estate. Meantime, I will go on with the further consideration of the general subject of subscription by, or on behalf of, the parties, in the order of the following particulars; viz.,— 1. The subscription of the party when he can write. 2. The subscription of a notary or notaries for the party when he cannot write. 3. Subscription by, or on behalf of, blind persons. 4. Subscription of parties by initials. 5. Signing by mark only. 1. First then, of the subscription of parties who can write. Deeds by such parties, when written bookwise, the mode now almost universal,--must be subscribed by the parties at the end, and also, when consisting of more sheets than one, at the foot of each page. The Acts to the above effect are 1540, cap. 117; 1579, cap. 80; 1681, cap. 5; and 1696, cap. 15. It is usual, and therefore proper, to sign at the foot of each page, in every case where there are two or more pages; but deeds written on no more than one sheet-that is, one single piece of paper, though folded so as to exhibit four pages-do not fall within the provisions of the Act of 1696, as not consisting of two or more sheets, or separate pieces of paper. Such deeds, therefore, may be written bookwise, and will be validly authenticated although the subscription of the party is adhibited on the last page only. On appeal to the House of Lords, the objection to the deed in Smith's case, that the last page 1 Williamson, 21st Dec. 1742, M. 16,955; Smith, 4th July 1816, F. C. only was duly signed, was abandoned at the bar; but Lord Gifford stated his concurrence in the views of the Court of Session.1 The case is instructive to practitioners. Irregularities in reference to the execution of a bond of caution to a bank gave rise to an action of reduction of the bond, founded, inter alia, upon the Act of 1696. The Court of Session having sustained the bond, the ease was appealed to the House of Lords, and remitted for reconsideration, with express reference to the operation of the above Act; and, although the bond was still sustained, the Judges holding it as a fixed point that the Act related only to deeds consisting of more sheets than one,-the trial of the question forcibly exhibits the dangers resulting from carelessness of practice, and shows how serious may be the consequences, even when the result is not fatal to the deed. A more difficult question connected with this point arose in the case of Bushby. A question was here raised, whether a contract of marriage, drawn in the Scotch form, but executed in England, and, though consisting of three sheets, subscribed on the last page only, was probative; and whether the objection was removed by marriage having taken place on the faith of the deed. These points were not decided; but all risk of question should have been excluded, if possible, by recurring to the parties, and getting the deed regularly and formally executed before the marriage; or, if there was no opportunity to do so, by getting a supplementary deed executed immediately afterwards. In Bushby's case this was not timeously done; and, the husband having become bankrupt, the security for the provisions to his wife and children, on the faith of which the marriage had taken place, was exposed to trial at the instance of the trustee in his sequestration. 3 The subscription should be below the whole of the deed. In one case a deed was sustained where part of the testing clause was written below the subscriptions; but this decision was pronounced by the narrowest majority, and its authority is greatly doubted. A deed contained in one sheet, and which was subscribed only on the first page, was found ineffectual.1 If the deed is written, according to the ancient form, in a roll, it SIDESCRIBING. must be subscribed by the party at the end, as in the case of deeds written bookwise; and, when the roll consists of two or more sheets battered together, sidescribed on the margin at each joining. These solemnities are founded partly on custom, partly on the Acts applicable to the case of deeds written bookwise. Sidescribing is not, indeed, the subject of direct, express, enactment; but, in the case of Thomson,5 Lord Deas held the Act of 1696 as a statutory confirmation of the custom previously in operation; and in the case of Macdonald," a deed, con 1 Smith, 4th June 1824, 2 Sh. App. 265. 5 Thomson, 1st Feb. 1856, 18 D. 470, affirmed 24th March 1859. 31 Jurist, 425. 6 Macdonald, 18th Dec. 1714, M. 16,808. |