SUBSCRIPTION BY INITIALS. SIGNING BY A MARK. subscriptions by blind persons should see them actually sign, and not be satisfied with their acknowledgment, as is competent in ordinary cases. I am sure you will all see the soundness of that advice. 4. Hitherto we have been considering the subscription of deeds which are per se probative, as being executed with all the statutory solemnities. We now pass to a class which, though not probative per se, may be admitted to proof, viz.,-deeds subscribed by the initial letters of the parties' name and surname. Subscription by initials is thought, by Erskine1 and Ross, contrary both to the words and spirit of the Acts of 1540, 1579, and 1672, because a party who can subscribe only the initial letters of his name can hardly be said to be able to write. But their views have not been supported by decisions. 3 In one case of very old date, it was held enough to prove the verity of the subscription by the witnesses. And, where the party did not deny the initials to be hers, an obligation so signed was sustained.* Sir George Mackenzie speaks of the custom of so subscribing, as all that required to be proved to support the deed. It is necessary, however, to prove both that the party did subscribe the particular deed by initials, and (if the case admits of proving custom) that he was in use to subscribe by initials only. This may sometimes be a difficult matter. In a case of reduction-improbation, the Court required proof on the first of these points by the instrumentary witnesses only; on the second, prout de jure." Supposing the witnesses to be dead, other evidence, if it could be had, would necessarily be admitted as to the actual subscription. But, to obviate such difficulties, it would be a good general rule, if the deed is not of minor importance, where parties can subscribe by initials only, to execute by means of notaries, besides having the party's initials subscribed as usual. 8 5. There is no known instance of a deed, which would require the solemnities of the Statutes, if the granter could write, having been sustained when authenticated by a mark only. The Court have in several cases refused to sustain deeds so signed. In Graham's case, the Lord Justice-Clerk Boyle said, 'I do not think this is a legal document at 'all. There is one mode, and one alone, of authenticating a document, 'when the party cannot write;' that is, by the aid of a notary or notaries, as already explained. The rule is not the same in reference to bills and promissory-notes, as we shall by and bye see; but in regard to deeds it is absolute." 1 Erskine, iii. 2. 8. 2 Ross's Lectures, i. 136. 3 Grierson, 14th Feb. 1633, M. 16.802. 4 Earl of Traquair, 16th Dec. 1724, M. 16,809. 5 Mackenzie's Institutions of the Law of Scotland, iii. 2. 4. 6 Ker, 20th Jan. 1693, M. 16,805; Weirs, 22d June 1813, F. C. 7 Couts, 21st June 1681, M. 16,804. 8 Barber, 26th May 1790, Hume 906, discussed in the case of Din, 18th June 1812, reported in a note to the case of Weirs, before cited; Graham, 30th Nov. 1848, 11 D. 173; Crosbie, 2d June 1865, 3 Macph. 870. 9 Thomson on Bills, p. 48. CHAPTER III. PASSING now from subscription of party, we have to consider the WITNESSES' rules applicable to the witnesses' attestations. When a party subscribes, his subscription must be attested by two witnesses. The Act 1540, cap. 117, requires witnesses in such cases; using the plural number; and custom has established that two are enough. The Act 1579, cap. 80, requires that, when two notaries subscribe for the party, their subscriptions shall be attested by four witnesses. The witnesses in all cases act at the request of the parties. They require to be specially called to attest the subscriptions, and ought not to subscribe as witnesses until desired to do so. 3 4 ATTESTATIONS. ARY WITNESS? The question, who may be an instrumentary witness, naturally occurs WHO MAY BE here. In general, every male of the age of fourteen or upwards, and AN INSTRUMENTwho is subject to no legal incapacity, is competent to be such witness. But, for obvious reasons, the law excludes pupils,1 idiots, or furious persons, and blind persons. Erskine says women likewise are excluded from being instrumentary witnesses. A person infamous in the eye of the law has been found not legally exceptionable as a witness to the execution of a mutual contract, the witness being chosen of mutual consent.5 Near relationship, or liability to undue influence, is not a good legal ground of objection to an instrumentary witness. We accordingly are not entitled to object to sons and brothers, as witnesses to their parents' and brothers' or sisters' deeds. 6 NOT ATTEST Though there are several parties to a deed, they cannot be witnesses PARTIES CANto one another's subscriptions. Erskine says a deed subscribed by a EACH OTHER'S number of persons, members of a corporate body, or even by a number SUBSCRIPTIONS. of private persons, has been once and again adjudged effectual without witnesses; the parties being presumed to have been witnesses to each other's subscriptions; and he quotes in support of this doctrine the cases of Forrest and Seabox of Queensferry; but the former of these cases was decided on the ratio of the deed being in re mercatoriâ, and therefore in a class of writings which, as we shall see, are privileged as regards 8 6 Erskine, iii. 2. 23. 7 Forrest, 19th July 1676, M. 16,970. GRANTEE CAN NOT ATTEST WITNESSES MUST SUBSCRIBE ANCE: MUST ADE- authentication; the report of the latter, given in Morison's Dictionary, consists of only two lines, and is altogether unsatisfactory. A full report of the case is given in Bell's Lectures on the Attestation of Deeds,' from which it appears at least doubtful if the point under consideration was settled as stated by Erskine. And a similar plea was rejected as untenable in the case of the Duke of Douglas, and more recently in that of Miller.3 In this last case, Lord Corehouse, Ordinary, says that the doctrine, as stated by Erskine, appears ill founded, and pregnant with danger. It must, therefore, be understood as beyond dispute, that parties to a deed cannot be witnesses to one another's subscriptions. The grantee cannot be one of the witnesses to the deed in his own favour. One of the two notaries subscribing for a party cannot be one of the witnesses to the subscriptions of himself and his co-notary as for the party. It is only as co-notaries that the two notaries are the legal substitute for the party; and it is equally incompetent for the one to attest the subscription of the other, as for a party to attest his own subscription. A testament, however, was sustained where one of the witnesses was a considerable legatee; and another, where each of the two subscribing witnesses was a legatee for £5, and one of them was one of three executors; and a trustee, nominated by a deed, but who had no patrimonial interest under the deed, was found competent to be an instrumentary witness to it. It is clearly advisable, however, to select witnesses who are of good character, not near relations of the parties, and generally above all remark. I apprehend also, that any one interested in the deed should be held as excluded from being witness to it. The recent Acts for amending the Law of Evidence in Scotland, and in which interest no longer excludes a witness from being examined, in a law suit, to prove a fact, have reference solely to judicial proceedings, and leave the law as to instrumentary witnesses just as it was. 8 9 The witnesses must themselves subscribe without assistance. The WITHOUT ASSIST- name of an instrumentary witness, written by a third party, while the witness merely touched the pen, is not a genuine subscription. They are required by the Act 1681, cap. 5, to know the party; and they must have at least credible information that he whose subscription they attest is truly the person designed in the writ. Where one of the witnesses to a bond, a boy of fourteen, had been called off the street to attest the party's subscription, and he deponed that he did not know the party, the Lords, though convinced the bond and debtor's subscription were true, yet, in respect of the Act of Parliament, found the bond null.10 It is not necessary that the witnesses shall have personal knowledge of the party. It is enough that they have credible information that the 1 Bell's Lectures, p. 90. * Duke of Douglas, 1st Nov. 1746 and 3 Miller, 29th May 1835, 13 Sh. 838. 6 Grahame, March 1685, M. 16,887. 7 Ingram, 22d Jan. 1801, M. App. voce Writ, 2. 8 Mitchell, 30th Nov. 1742, M. 16,900. 9 Setton, 24th Feb. 1816, 1 Murray's Jury Court Reports, 9. 10 Campbell, Nov. 1698, M. 16,887. 1 subscriber is 'the true person' designed in the writ. The Act of Sederunt, in reference to the knowledge required on the part of notaries who subscribe for parties unable to write, was founded on in the pleadings in Walker's case; and the terms of the judgment appear to indicate that the Court held similar knowledge to be what is required on the part of the witnesses; the object of the provision under consideration in the Act 1681 being to prevent personation. The party must subscribe in presence of, or he must acknowledge his subscription to, both of the witnesses; or else subscribe in presence of the one, and acknowledge his subscription to the other. And, in cases where the subscription is witnessed upon acknowledgment, the acknowledgment must be clear and explicit.3 It is usual and right for the witnesses, in all cases, to subscribe at once, and without delay, after the party has subscribed in their presence, or acknowledged his subscription to them. But immediate subscription is not essential on the part of a witness who has seen the subscription of the party adhibited. Such witnesses may sign after the lapse of an interval of time, and the one may sign on one day and the other on another day. It may seem, at first sight, that a contrary doctrine was laid down in the case of Home; but that case is evidently special. The deed there was a mutual contract: the parties had subscribed it, but they had not desired or authorized the witnesses to subscribe. The parties left the deed, designedly thus incomplete, in the hands of one of the witnesses; and, until called upon by both parties, neither he nor the other witness ought to have subscribed. Some days afterwards, however, the two witnesses put their names to the deed, as witnesses, at the instigation of one of the parties, and without the authority of the other. The witnesses thus took upon themselves, at the desire of one of the parties, to do what required the joint desire of both. The Lords found the deed null, because the parties, having broken up without perfecting their contract, were free, and could afterwards be bound only by a new act of their own, interposing their consent to the subscription of the witnesses. Professor Menzies shows plainly, I think, that the ground of nullity in this case did not consist in the witnesses' not subscribing at once, but in the fact that the parties had not settled the transaction. when the witnesses subscribed, and that it was intended and understood that the witnesses should not have subscribed without authority from both the parties. Where the deed is attested wholly or in part upon the granter's acknowledgment of his subscription, the two witnesses, if both attest upon such acknowledgment, or such one of them as so attests, must subscribe at the time of the acknowledgment. Subscription being a single act, the witnesses who saw the party subscribe must have been present together at the time when the deed was 1 Walker, 8th June 1716, M. 16,896. VOL. I. 6 Menzies, p. 119. Lord President M'Neill in Hogg, 12th March 1864, 2 Macph. 848. D RE-EXECUTION. executed; but it is not necessary, in point of solemnity, that the witnesses to whom the granter has acknowledged his subscription should have been in presence of each other when he did so.1 Neither is it necessary, in point of solemnity, that both or either of the witnesses should in any case subscribe in presence of the party. In order, however, to fix the date of the deed (which in some cases is a point of great importance), it would seem that the acknowledgment to both of the witnesses, if neither has seen the party subscribe, must be on the same day; and, where one witness has seen the party subscribe, and the acknowledgment is made to the other only, the subscription and acknowledgment should be on the same day. It sometimes happens that a deed, after being subscribed by the party and witnesses, but before being further completed, requires to be written over in part, of new, with alterations; in which case the whole deed, as altered, must be authenticated by subscribing the whole, just as if no part had been previously subscribed; or by subscribing the part written over, and acknowledging the original subscriptions to what is not written over; or by acknowledging the subscriptions to the whole, in presence of two witnesses; or by subscribing in presence of one and acknowledging the subscriptions to the other. The witnesses, even though the same as on the first occasion, and though they have already subscribed, must subscribe upon the re-execution, as that is the true execution of the deed; the former subscriptions by the witnesses having reference to the first subscription by the party; and there being no authority for accepting from the witnesses the acknowledgment of their former subscriptions. It is absolutely necessary that the party shall adhibit or acknowledge his subscription in presence of the witnesses. It is not enough that the party shall acknowledge his subscription to be genuine, or that the witnesses are able to say they know the party's subscription. It is consequently a relevant inquiry, in all questions concerning the due execution of a deed subscribed by the party himself, whether, in point of fact, both or either of the persons who subscribed as instrumentary witnesses did not see him subscribe, or hear him acknowledge his subscription. In order to reduction of a deed on the ground that the witnesses, or one or other of them, did neither see the subscription made, nor hear it acknowledged, both these averments must be proved. Where a question is raised as to that point of fact, the decision will depend on the nature and extent of the evidence which can be adduced to contradict the solemn written attestation of the witnesses contained in their subscriptions to the deed. When a deed is ex facie regularly executed, there arises a strong legal presumption in its favour, and it lies upon him who attempts a reduction of it, to establish his objection by legal evidence. It is obviously necessary, therefore, that the evidence, 1 Robertson, 1st Dec. 1823, 2 Sh. 544; and Hogg, cited in p. 49, Note". 2 Frank, 3d March 1795, M. 16,824; and Condie, 26th June 1823, 2 Sh. 432. |