does not necessarily support the doctrine that marginal additions can be authenticated by the mere signature of the party. In Spottiswood's case, the marginal addition occurred in a bond, and was in the same handwriting with the bond. The addition contained a qualification in favour of the granter and against the grantee. The grantee was custodier, and there was thus, the report says, no suspicion of the addition having been unduly adjected, unless it could be proven that the bond had fallen into the hands of the granter. The grantee, moreover, had, in certain judicial proceedings, pleaded on the bond in such a way as to allow effect to the marginal addition. He had judicially admitted it. This appears equivalent to adoption or homologation; and it will be observed that what the Court found was only that the addition was good against the user (the party in right of the grantee or custodier) of the deed. The ground of the decision may thus have been adoption or homologation. In these circumstances, though the two last-mentioned cases are certainly of an unsatisfactory tendency, I do not admit them as authorities for holding that a marginal addition. upon a deed can be authenticated, without being formally adopted as part of the deed; and there can be no doubt that the practice of authenticating such additions, in the way I have stated, is universal. The non-authentication of marginal additions does not necessarily invalidate the whole deed. As a general rule, the additions will be held pro non scriptis, and the result of their non-authentication will depend on the nature of the deed, and the subject-matter of the addition. But marginal additions, once made and duly authenticated, are parts of the deed, and are not to be delete or altered, any more than if they had been in the body of the deed. Thus, a bond, on the margin of which it was alleged that a material addition had been written, having been mutilated by cutting off the margin, was reduced in toto.2 AUTHENTICAT ADDITIONS? The question of the best or most satisfactory mode of authenticat- WHAT IS THE ing marginal additions is one of much interest in Conveyancing. Lord BEST MODE OF Stair3 observes that such additions are more easily suspect than what ING MARGINAL are in the body of the writ, except where the writ is mutual, and the marginal additions are signed by both parties; adding, as his reason, for it is not certain that the witnesses subscribed when these addi tions were made.' This passage has apparently suggested the security recommended by Mr. Duff, that marginal additions should be signed by the witnesses as well as by the party. But if care is taken to frame the testing clause so as to prove that the witnesses attest the subscription of the marginal addition, as well as of the body of the deed, there seems no ground for adopting this course, which is quite unknown in present practice. Mr. Duff further suggests, that marginal additions should be noticed by the number of the page and of the line at which they occur; and Professor Menzies, in reference to marginal additions of great importance, gives similar advice.1 In such cases that course may be very expedient; but, though I think our practice is not altogether satisfactory on this point, I apprehend it is on the whole uniform, and I have not heard of any bad result or feeling of insecurity in connexion with it. In these circumstances, I do not see any cause to go beyond Professor · Menzies' recommendation. Before leaving this subject, I would recommend that where alterations, which will always be more or less matter of necessity, are of an important nature, or are numerous, though comparatively unimportant, it is best to write over the deed, should time permit. If that cannot be done, resort to marginal additions, whenever they are suitable, in preference to erasure. By every means avoid erasures. 1 Menzies, p. 127. TITLE II. PRIVILEGED WRITINGS. CHAPTER I. HAVING now explained the solemnities applicable to the authentication of deeds in general, we have to notice the classes of deeds which, as regards the mode of authentication, are privileged, and to consider the manner in which privileged writings require to be executed, in order to be probative. They are called privileged, because they have the support of the law, though destitute of some, or even of most, of the solemnities essential in ordinary cases. We shall consider, first, Holograph Writings. The object of the solemnities prescribed in reference to deeds in general is, in the first place, to give security of title-protection against the fraudulent fabrication of writings; and, secondly, to prevent parties from being entrapped into transactions by making the execution of deeds a matter of solemnity, and not of mere ordinary occurrence. But, in the case of holograph writings, the statutory solemnities are not necessary for the above purposes, and the acts do not apply, because the handwriting of any party, through a whole deed, is more difficult to be imitated or counterfeited, and therefore less exposed to forgery, than the bare subscription by a party of his name; and both writing and subscribing a deed is a more trustworthy and deliberate expression of intention than merely subscribing a deed written by another. It is very important, and in some cases may be essential, that holograph writings should be subscribed. Lord Stair says,2 Holograph writs subscribed are unquestionably the strongest probation by writ, and least 'imitable.' 1 It is not essential, in order to give the privilege belonging to holo 1 Erskine, iii. 2. 22; 1 Bell's Comm.. 324; Menzies, 135; Dickson on Evidence, 1. 397; Earl of Rothes, 9th Dec. 1635, M. 12,605; and anonymous case, 1 Br. Sup. 2 Stair, iv. 42. 6. HOLOGRAPH WRITINGS. graph writings, that every word of the deed shall be holograph. Lord Stair says, in the passage above cited, Writs are accounted holograph 'where large sentences are written with the party's hand, although not the whole writ;' and the term 'large sentences' has been construed as meaning the substantial parts of the deed; such, for example, as the sum and the name of the debtor in a bond. Accordingly, a bond was sustained in which the name and designation of the granter, the principal sum and penalty, and the date, were proved to be written by the granter.1 On this principle, as has already been stated, the settlement by Mr. and Mrs. Laurie of Wellfield, spouses,-disponing the husband's heritage, and all written by the husband, except seventeen words of little moment, which were written by the wife,—was held valid as the holograph writ of the husband. We formerly saw that the same writ was sustained as having been duly tested; but the Court intimated that they held it probative on each of two separate grounds,-one, that it was holograph of the husband; the other, that it was duly tested. On the other hand, the acknowledgment of the receipt of a sum of money in loan, though signed and addressed by the borrower, was held improbative, no other part of it being written by him, and the writing not being in re mercatoria (this last being a separate ground of privilege in authentication of deeds, as we shall presently see).3 5 The privilege attached to holograph writings can, in general, support them only as granted by one individual. Thus, an obligation for £80, subscribed by three individuals, and holograph of one of them, but not authenticated with the solemnities applicable to deeds in general, is not binding on the parties who merely subscribed, but had not written it.* But a letter, written by the managing partner of a company, and subscribed by him with the company's firm, guaranteeing, to a certain extent, a promissory-note by one of the partners as an individual, has been held probative as against the company. And a writing, subscribed by a husband and wife, written partly by the husband on the fly-leaf of a Bible, certifying that they made this agreement that the longest liver was to have all that remained after their debts were paid,' was dealt with as a mutual settlement of moveable estate, and allowed effect in reference to the husband's moveables against his next of kin. The Court refused to treat this paper as an 'agreement,' though the parties had so described it; holding that persons in the humble ranks of life, as the parties in this case were, ought not to be tied down to technicalities of construction; and that the deed, though not described by them with exact accuracy, spoke for itself, as to its real nature, as being that of a mutual will, and was to be dealt with accordingly. A more difficult question would have arisen, if the effect of the document as against the wife had been tried;--she only subscribed it ;-but that point did not properly arise. 1 Vans, 23d Jan. 1675, M. 16,885. 4 Miller, 29th May 1835, 13 Sh. 838. 2 3 WRITINGS HOLOGRAPH. Holograph writings ought expressly to mention that they are written HOLOGRAPH by the granter; but it is not essential that they shall state the fact; it is enough, in order to their validity, if the fact be so. When they contain THAT THEY ARE the statement, it will be held primâ facie evidence of the fact, and the onus of proving the contrary will be thrown upon the challenger. But, if the fact is not stated in the writ, the onus of proof that it was written by the granter appears to lie on the party founding on the writ. The mode of proof will not be confined to comparatio literarum. Facts and circumstances generally will be considered. In a case where a writ, alleged to be holograph, but which did not bear in gremio to be so, was challenged on the ground of forgery, an opinion was indicated by Lord Jeffrey, that the user of the writ discharged the onus laid upon him by adducing prima facie evidence that the body of the writ was in the same hand as the subscription, and that the onus of proving forgery then lay upon the challenger. But that view, if Lord Jeffrey is correctly reported, must have been expressed incautiously. On this point, I refer you to the Lord Chancellor's remarks on it, and explanation of its only legitimate meaning, in Anderson's case. We have seen that, in the case of deeds in general, it is competent to raise the objection that the subscribing witnesses neither saw the party subscribe, nor heard him acknowledge his subscription. But that objection is not relevant in the case of holograph writings, even when these bear to be subscribed before witnesses, unless the date be essential to the efficacy of the deed, because such writings are valid whether the subscrip-tion was duly attested or not. Yeats' case was that of a testamentary writing applicable to heritable estate in Scotland, but there was no challenge on the head of deathbed, so as to make proof of the date essential. THEIR OWN Holograph writings, without witnesses, prove their own date as Do HOLOGRAPH against the granters, in questions where third parties are not interested;6 WRITINGS PROVE but not against third parties, as the insertion of the date is merely the DATE? granter's statement that the writ was subscribed upon such a day. Practically this is a matter of necessity, otherwise parties might, when not controlled by witnesses, antedate writings, by which their heirs might be cut off from the plea of deathbed; creditors-inhibitors, from the benefit of legal diligence; or a husband from the defence that his wife had granted the obligation sued on after she was married; or the antedating might take place in order to affect some other right known to exist, or to be capable of existing. It has therefore been found that the date of holograph deeds must be supported aliunde, by adminicles, in questions with the granter's husband; or in questions with his heir in heritage; and in various similar cases. Holograph letters, however, from 1 Erskine, iii. 2. 22. 2 Robertson, 20th Dec. 1844, 7 D. 236. 3 Anderson, 25th June 1850, 22 Jurist, 478; affirmed 16th April 1858, 3 Macqueen, 180. 4 Turnbull, 29th Feb. 1844, 6 D. 896. 5 Yeats, 6th July 1833, 11 Sh. 915. 6 Earl of Dunfermline, 14th Jan. 1674, 1 Br. Sup. 703. 7 Temple, 20th Jan. 1636, M. 12,490. |