Page images
PDF
EPUB

LEADING OB

TUTORY SYSTEM

[ocr errors]

:

seales Bot gif it happen theme to be absent upon a reasonable cause, ' and gif onie be absent, in that case, that he sende for him a sufficient 'Gentle-man, his Attourney, with the seale of his Armes.' But it is too manifest that even with the most punctual observance of the above Act, the law as to the authentication of deeds must have been in a most unsatisfactory condition, as seals might easily be fabricated, or used without authority. And this brings us to the commencement of the system of authentication adopted, and now in use, in Scotland.

The point to be aimed at, in such a system, is that which unites JECTS IN A STA- all the evidence and all the formalities contributing to make genuine OF SOLEMNITIES. deeds worthy of trust, and their execution, without being overburdened with forms, a matter of solemnity,-that point which gives adequate opportunity of consideration to the parties before they commit themselves, and which affords the best means of preventing and detecting fraud.

SUBSCRIPTION
MADE ESSEN-
TIAL

So long as the art of writing was confined to the clergy, or little practised by others, the means of authentication of deeds were not very ample. Parties were in the hands of the churchmen-notaries,' who generally were skilled penmen; and several old Statutes, by their repeated reference to the 'falsetts of notaries,' give too plain evidence that the interests of the community were not safe in their hands. Recourse to a Judge and the execution of a deed in his presence, and under his protection, might, perhaps, even at that period of our history, have afforded reasonable security, but such a mode of execution would have been cumbrous and expensive, and to many parties it must have been inaccessible. The revival of the art of writing, therefore, and the extensive teaching of that art amongst the community in Scotland, naturally formed the foundation on which to establish the mode of authenticating deeds; for it must be a standing subject of wonder that the handwriting of parties, all taught in the same way, all using the same instrument, all forming the same letters, should, notwithstanding, contain invariably so much that is distinctive, that, when we are driven to the comparatio literarum, we can so often make ourselves fully assured whether the signature subjected to the test is genuine and true, or is a fabrication.

The Scottish Parliament accordingly introduced subscription as a necessary solemnity in authenticating a deed. This was done by the Act 1540, cap. 117, which bears for its title, 'That na faith be 'given to evidentes sealed, without subscription of the principal or 'Notar.' This Act-on the preamble that 'mennis seales may, of 'adventure, be tint, quhairthrow great hurt may be genered to them 'that awe the samin; and that mennis seals may be feinzied or put 'to writinges after their decease, in hurte and prejudice of our Sove'rain Lord's lieges'-enacts, that 'therefore na faith be given, in time cumming, to ony obligation, band, or uther writing, under ane seale, 'without the subscription of him that awe the samin, and witnesse :

[ocr errors]

or else, gif the party cannot write, with the subscription of ane Notar · thereto.'

This Act is the foundation of the system at present in force in Scotland. I read it as requiring the subscription of the party or of a notary for him if he could not write, and of two or more witnesses. If that be the correct view, for which there is not wanting good authority, it will be remarkable that, so early as 1540, the mode of authentication by subscription, when the party could write, was placed by Statute at once on the footing on which it has stood ever since. It has, however, been questioned whether the Act required the subscription of the witnesses as well as of the party; and specially, whether witnesses were required in WAS SUBSCRIPthe case of subscription by a notary. Professor Menzies is of opinion WITNESSES that the Act did not require the subscription of the witnesses; and the REQUIRED BY practice which followed upon it was unquestionably various and unsatisfactory. Sometimes persons subscribed as witnesses who were not mentioned in the deed as such, but more generally the witnesses were specified in the deed, and their subscriptions dispensed with.1

Practically, the question of the meaning of the Act on the above point is not of much consequence now. I do not, however, reckon the irregularity of practice which followed as supporting either the one view of construction or the other; because in reference to almost all the earlier enactments affecting the authentication of deeds, there has been an unwillingness to give instant and immediate observance to new statutory provisions, and, at the early period in question, it may not have been always easy to procure witnesses who could write. The argument, however, in favour of the view that witnesses were not intended to subscribe, is supported by the terms of the Act 1555, cap. 29, 'anent the sealing and subscription of reversions and writs belangand thereto,' which prescribes the sealing and subscription of the parties,-those who cannot write being to subscribe with their hand led at the pen by a notary. This Act says not a word of witnesses, and it is hardly to be supposed that if, in 1540, as regards deeds in general, the subscription of witnesses, as well as of the party, had been required, the subscription of the party alone would have been held sufficient as regards reversions and relative writs in 1555, being only fifteen years afterwards.

TION OF

1540, c. 117?

The Act of 1540, at all events, was not express in requiring witnesses, in the case of a deed signed by a notary, on behalf of a party who could not write; in that case, moreover, it required the subscription of only one notary. The interests of parties were thus placed too much in the power of the notaries of the day; and, apparently to remedy that evil, the Act 1579, cap. 80, was passed, entitled, 'Anent the subscrip- SUBSCRIPTION tion and inserting of Witnesses in Obligationes, and utheris writtes of OF WITNESSES importance.' This Act ordains that all contractes, obligationes, rever- 1579, c. 80. 'siones, assigationes, and discharges of reversiones or eikes thereto, and 'generallie all writs importing heritabil titil, or utheris bandes and obli1 Erskine, iii. 2. 7.

REQUIRED BY

SEALING ALSO

MADE A
STATUTORY
SOLEMNITY.

1584, c. 4, DIS

[ocr errors]

'gationes of great importance, to be maid in time cumming, sall be sub'scrived and seilled be the principal parties, gif they can subscrive, uther'wise be twa famous Notars' (that is, notaries of good fame or character), ' befoir four famous witnesses, denominat by their special dwellingplaces or sum other evident tokens, that the witnesses may be knawen, being present at that time, utherwise the saidis writs to mak na faith,' or, as we should now say, to be improbative. This Act you will observe is specially applicable, inter alia, to reversions and writs of that description. These three Acts, 1540, 1555, and 1579, though intended chiefly to make subscription by, or on behalf of, the party and witnesses essential, all made sealing, the mode of authentication previously in use, a solemnity; thus giving statutory force to what had formerly depended on custom only, and affording an instructive evidence of caution in dispensing with any of the sanctioned safeguards in connection with the authentication of deeds. But by an explanatory Act, 1584, cap. 4, sealing was dispensed with in reference to such writs, contracts, or obligations as were subCERTAIN CASES. Scribed by the parties, and agreed upon to be registered in the Books of His Majesty's Council or other ordinary Judges, seeing the parties consent to registrate the same, which is a 'greater solemn act' than the sealing thereof. The nature of the solemn act' here referred to will be explained in connection with the subject of the registration of deeds for execution or preservation. It is enough to observe here, that the agreement or consent, referred to in this Act, authorised a procurator for the grantor of the deed to produce it in Court and consent to the Judge pronouncing decree against him in favour of the grantee for implement of its contents. The clause of registration, therefore, was an authority for the judicial acknowledgment of the deed as the grantor's act; than which nothing in the way of authentication could be more solemn. We learn from Erskine1 that sealing, though only partially dispensed with by this Act of 1584, fell quite into disuse soon after the passing of the Act; and as to private deeds, it is now (though without any express enactment on the subject) wholly unnecessary.

PENSES WITH
SEALING IN

SEALING IN
DISUSE.

IRREGULAR OB-
SERVANCE OF
STATUTES ON
SOME POINTS

UNTIL 1681, c. 5.

Considerable variety of opinion has prevailed regarding the intention of the Act of 1579, as to requiring the subscription of parties who could write to be before four witnesses,-as in the case of two notaries for parties who could not write; but, whatever may have been the intention on that point, the Act certainly does not enjoin the subscription of the witnesses. And there can be no doubt that the practice which followed after 1579 was uncertain. Erskine tells us, 'witnesses were, by the common practice, specially designed in deeds, and where they were not 'so designed, or not so much as named, the omission was accounted a 'sufficient objection to the validity of the deed; but, because the words ' of the Act were not clear with respect to that nullity, the grantee was 'allowed to give in a condescendence, pointing out who the witnesses 'were, which condescendence was to be supported by the testimony of 1 Erskine, iii. 2. 7. 2 Erskine, iii. 2. 11.

'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,1 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.

[ocr errors]

NITY INTRO

In the meantime, a new solemnity was introduced by the Act 1593, NEW SOLEMcap. 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, c. 179. 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.a

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 connection 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 1 Colvill v. Lord Colvill's Executors, 15th July 1664, M. 16,882.

a See Note at the end of this Chapter.

WHOLE SUB-
JECT OF AU-

THENTICATION
DEALT WITH IN
1681, c. 5.

AUTHORITY TO
WRITE DEEDS
BOOKWISE, BY
1696, c. 15.

nullity, the Court allowed condescendences to be received in reference to deeds 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.

[ocr errors]

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 Parliament 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 ' witnesses 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, acknowledge his subscription; otherwise, the said Witnesses 'shall be repute and punished as accessorie to forgerie.'

[ocr errors]
[ocr errors]

The next Act passed in connection 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

« EelmineJätka »