in consideration of a sum of money paid,-in respect, inter alia, that the discharge was not duly authenticated. The attempt was unsuccessful; but, except when the transaction is very clearly in re mercatoriá, the discharge on a compromise, or settlement of claims, ought to be authenticated as an ordinary deed.

The privileges of writings in re mercatoria, as regards their authentication, are—(1.) That, although not holograph, witnesses are not required to prove their authenticity; (2.) That witnesses are not required, as in holograph deeds, to prove the date; (3.) That even subscription ' by initials, or by a mere mark, provided it be proved or admitted to be genuine, and to be the accustomed mode of the person transacting 'business, is sufficient;' and the privileges have been conceded on account of the 'necessary rapidity of the operations of trade, the confi'dential methods of transacting business which are necessary or un' avoidable, and the circumstance that they often regulate transactions 'between subjects of different states, among whom the peculiarities of 'municipal law cannot be admitted.'

The last class of privileged writings which we shall refer to is that RECEIPTS TO of receipts to tenants for rent. These, by the usage of Scotland, need TENANTS. only to be subscribed by the landlord, or some one duly authorized by him, let the sum be ever so considerable.2 In Boyd's case such receipts were sustained, in respect of the custom, and by reason of the great and exuberant confidence betwixt landlords and tenants.

TORY FORMS OF

A short reference may here not be out of place to cases in which SPECIAL STATUspecial forms of authentication have been sanctioned by Acts of Parlia- AUTHENTICAment; indeed, the particular documents, or classes of documents falling TION. under such Acts, may be regarded as thereby privileged in regard to the

mode of execution.

ESTATES ACT.

Thus, by the Crown Private Estates Act,' passed in 1862,3 All CROWN PRIVATE 'dispositions, conveyances, deeds of appointment, commissions, powers ' of attorney, wills, deeds of settlement, and other deeds or instruments to be made or granted by Her Majesty, her heirs or successors, of or relating to the private estates of Her Majesty, her heirs or successors, 'situate or arising in Scotland, shall be valid and effectual, although not executed according to the forms of the law of Scotland, if the same shall be under the sign manual, attested by two or more witnesses : And every such disposition or conveyance, if granted mortis causá, shall 'be valid and effectual, whether the same shall be under the sign manual as aforesaid or shall be signed by some other person in the presence of the granter, and by his or her direction, in the presence of two or more 'witnesses, who shall attest the same, although the same shall not be 'executed according to the forms of the law of Scotland.' This last alternative, applicable to the case of mortis causa dispositions or convey3 25 & 26 Vict. c. 37, s. 6.

1 Bell's Commentaries as above.

2 Erskine iii. 2. 23; Boyd, 7th Nov. 1674, M. 12,456.

COMPANIES

ACT.

MERCHANT

SHIPPING ACT.

ances, places the execution thereof as nearly as possible on the footing on which the execution of wills in England was placed by Lord Campbell's Act of 1837, previously referred to.1

By the Companies Act, 1862,'2 the writings whereby public or jointstock companies are in future to be formed and incorporated, viz., the 'memorandum of association,' and the articles of association,' are appointed to be signed by each subscriber or member in the presence of one witness at the least.' Such attestation is declared sufficient in Scotland, as well as in England and Ireland; and the relative schedules seem to show that where one and the same witness attests the signatures of two or more members, it is not necessary for the witness to sign more than once. In a case or form given in these schedules, the same witness is made to attest the subscription of seven members, thus: Witness to the above signatures, A. B., No. 13 Hule Street, Clerkenwell, Middlesex.' It seems intended, however, that each witness should specify in his attestation the member or members whose signatures he attests. The memorandum and articles of association need not have the members' seals affixed. They require to be registered in the Register of Jointstock Companies.

3

By the Merchant Shipping Act, 1854, the bill of sale of a ship, or share of a ship, as given in Form or Schedule E annexed to the Act, will be duly executed by the party signing and affixing his seal to it in presence of one witness, who will sign under an attestation or certificate in these words, Executed by the above-named A. B. in the presence of E. F.,' the witness also inserting his description and place of residence. The testing clause runs simply thus: In witness whereof, I have hereto subscribed my name and affixed my seal, this 18 .' The signature of the party is to be adhibited at the usual place on the right-hand side of the deed. The seal, which in general is affixed at the same side, immediately after and in a line with the subscription, seems intended to have its place in the bill of sale on the left-hand side, immediately above the witness's attestation.

day of

Mortgages over ships, or shares of ships, and the transfers of such mortgages, are to be executed in the same manner (Forms I and K). These forms do not bear expressly that the witness is to add his description and place of residence, but such addition can plainly do no harm.

Various other documents connected with ships will be found in the schedules or forms annexed to the last-mentioned Act. In some cases the mode of authentication is the same, in others different from that in the forms above given; but it is not necessary here to enter more fully into the particulars of the various documents.

By many acts of incorporation of railway and other public or jointstock companies, transfers of stock or shares are declared duly executed

11 Vict. c. 26, s. 9.

2 25 & 26 Vict. c. 89, ss. 11 & 16.

3 17 & 18 Vict. c. 104.

when the seller and purchaser respectively subscribe and affix their seals in presence of one witness, who subscribes his name with the addition of his description or designation and place of residence. And by the Royal Charter incorporating the Royal Bank of Scotland, special modes of executing and attesting not merely transfers of the stock of the Bank, but also powers of attorney for such transfers, are laid down; and no doubt there are numerous other special cases under such charters or under Acts of Parliament.

As a general rule, the place of subscription seems not to be specified in the above cases. The deeds usually contain a date, but only one date, though they may happen to be executed by several parties on different days. They do not, however, mention the number of the pages, the name or designation of the writer, nor the name and designation of the witness or witnesses. But they relate (with the single exception of the Crown Private Estates Act) to personal estate exclusively, and, most of them being applicable to English and Irish as well as Scotch transactions, it has been deemed important that the mode of authentication should be the same for all the three countries, and that the form specially adopted in each case should approach more nearly to that followed in England than to the Scotch form. Experience will show how far the modifications, sanctioned by these Acts and charters, can be adhered to, without the risk of forgery or of inconsiderate haste.

I proceed now to the method of authenticating Judges' interlocutors, AUTHENTICAand the official acts and decreets of which they are the warrants.

The Act 1686, cap. 3, ordains that all interlocutors pronounced by the Lords of Council and Session, and all other Judges within the kingdom, shall be signed by the President of the Court, or the Judge pro'nouncer thereof;' and 'prohibits the Clerks, upon their peril, to extract 'any acts or decreets, unless the interlocutors, which are the warrants 'thereof, be signed, as said is: Declaring the extracts which shall be ' given out otherwise to be void and null;' and by 1693, cap. 18, all interlocutors and acts of the Court must be signed by the Judge in the chair, in presence of a quorum of the Lords sitting in judgment, under pain of nullity and deprivation of the writer. Accordingly the Judge, in the Court of Session, who signs, always adds to his subscription the letters 'I.P.D.,' i.e., in præsentid Dominorum. The Act of 1686 has been held not to apply to the deliverances of presbyteries, chiefly on the ground of usage.1

In the Court of Session, the interlocutors of the Outer House ought to be written by one of the Depute-Clerks of Session or his assistant.2 The interlocutors of the Inner House ought to be written by one of the Principal Clerks of Session. In the case of the necessary absence of the clerk whose proper duty it would be to write the interlocutor, any of the 2 Shand's Practice, p. 106. 3 Ibid. p. 103.

1 Fergusson, 2d July 1850, 12 D. 1145; affirmed, 1 Macqueen, 232.

TION OF INTER-
LOCUTORS, ETC.

remaining Principal Clerks, or any person appointed by the Division of the Court to which such absent Principal Clerk may belong, either from among the Assistant or Depute-Clerks, may discharge his duties.1 Such interlocutors ought to be free of erasures or other vitiations in substantialibus. I do not know of any reported case on that point; but in one unreported case (a disentail under the Rutherfurd Act) it was represented to the Court that a material word in the interlocutor of disentail was written on erasure, and the Court repeated the interlocutor, without, however, admitting that this was absolutely necessary.

In general, official extracts of acts and decreets of Court are authenticated by the signature of the Clerk of Court.2 Extracts of acts or decreets of the Court of Session are authenticated by the signature of the Principal Extractor appointed under the Act 1 and 2 Vict. cap. 118, sect. 18, or during his necessary absence by his assistant. Before this Statute came into operation, extracts of such acts and decreets were authenticated by one of the four Extractors appointed by the Principal Clerks of Session; and it is important to observe that by the Act of Sederunt of 6th March 1829, which was in operation from 1st May 1829 to 24th December 1838, every such extract required, under pain of being improbative, a docquet in the handwriting of the officer by whom the extract was signed, stating by whom it was written, by whom collated, and at what date it was completed by signature of the Extractor. But by the Act of Sederunt of 24th December 1838, sect. 6, the docquet was dispensed with as to future cases, and instead thereof the Extractor is to specify in writing, on the last page of the extract, the date of completing the same by his subscription.

We have, in addition to proper judgments of Courts or judicial sentences, the decreet or sentence-arbitral,-and in the case of the Earl of Hopetoun3 you will find several Judges, particularly Lord Deas (who quoted Lord Rutherfurd, then deceased, as having seen and approved of his opinion), holding the sentence of an arbiter, which was executed in England, under a regular submission, as capable of enforcement, provided only it is signed, and the Court are satisfied that it is authentic. In illustrating his views, Lord Deas observes, that the sentence-arbitral is 'truly part and parcel of every Scotch contract of submission, and used ' accordingly to be signed by the persons submitters as such. All for'malities in that sentence-arbitral, assuming it to be signed and authen'tic, may be dispensed with, either by the express or implied consent of 'parties.' It is of course useful to have these views before us; but, without questioning the power of parties to the submission of an ordinary dispute, by their mutual consent, to adopt their own form of authentica tion, Conveyancers will keep in mind that the practice, in regard to Scotch decrees-arbitral, is to authenticate them in the same manner as ordinary probative writs; and no other course should be followed.

1 1 & 2 Vict. c. 118, s. 8.

Stair, iv. 42. 10.

3 Earl of Hopetoun, 6th March 1856, 18 D. 739.

TITLE III.

DELIVERY AND ACCEPTANCE.

As a general rule, all voluntary deeds, in order to be obligatory, DELIVERY OF require to be delivered by the granter, and (if not mortis causá) during DEEDS. his lifetime. Delivery to the grantee, whereby the granter puts the voluntary deed beyond his own power, is the expression of his final purpose concerning such deed; which purpose is held to be not taken, as long as the deed remains in the custody of himself, or of any one for him.1

The rule, however, above stated, is not without qualification. When a party is in possession of a deed in his own favour, it is generally presumed that such deed belongs to him; but in each particular case the whole facts and circumstances must be looked to. The question is, whether the deed is in the hands of the grantee in such a way as to be beyond the control of the granter;2 and it has sometimes been found difficult, in particular circumstances, to determine whether, in point of fact, deeds which require delivery to their full and complete efficacy have been delivered or not.

There are two reported cases which bear the strongest resemblance to each other, but in which the decision of the Court was different:

(1.) Stamfield's creditors,3-in which an assignation by Stamfield, in favour of one who was a cautioner for him, and otherwise his creditor, was placed by the granter on his table, subscribed and addressed to the grantee, whom he informed of this at a meeting on a Saturday, when he also stated that he was just going to the country, and that, when he returned on Monday, the deed should be delivered to him. Stamfield was murdered on the night of the meeting. The assignation was found on his table, after the murder, subscribed and addressed as stated; but it was held undelivered, as it had never been placed beyond his power, and he might have destroyed it, if he had thought fit.

1 Erskine, iii. 2. 43 & 44; Irvine,

Nov. 1738, M. 11,576.

2 M'Aslan, 17th Feb. 1859, 21 D. 511.

3 Stamfield's Creditors, 22d Dec. 1696, 4 Br. Sup. 344.