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 authorised was very speedily followed universally.

PAGES DIS

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 literal enforcement of the law, the Act 19 and 20 Vict. cap. 89 was MARKING OF passed, declaring it not competent to challenge any deed or writing on PENSED WITH BY the ground that the pages thereof are not marked by numbers, and no 19 & 20 VICT. 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.a

c. 89.

a By the Conveyancing (Scotland) Act of 1874 (37 and 38 Vict. cap. 94, sect. 38), OTHER SOLEMit is enacted, that 'It shall be no objection to the probative character of a deed, NITIES DIS'instrument, or writing, whether relating to land or not, that the writer or printer PENSED WITH is not named or designed, or that the number of pages is not specified, or that the IN 1874. ' witnesses are not named or designed in the body of such deed, instrument, or writing, or in the testing clause thereof, provided that where the witnesses are not so named ' and designed their designations shall be appended to or follow their subscriptions; and such designations may be so appended or added at any time before the deed, 'instrument, or writing shall have been recorded in any register for preservation, or 'shall have been founded on in any court, and need not be written by the witnesses ' themselves.'

Several of the statutory solemnities which were previously essential are thereby dispensed with, and the subscriptions of the party and of witnesses duly designed remain now the only statutory requisites in the execution of Scottish deeds.

By sect. 39 of the same Act it is enacted, that 'No deed, instrument, or writing INFORMAL 'subscribed by the granter or maker thereof, and bearing to be attested by witnesses DEED NOT 'subscribing, and whether relating to land or not, shall be deemed invalid or denied NECESSARILY ' effect according to its legal import because of any informality of execution, but the 'burden of proving that such deed, instrument, or writing so attested was subscribed

IMPROBATIVE.

VOL. I.

C

by the granter or maker thereof, and by the witnesses by whom such deed, instru'ment, or writing bears to be attested, shall lie upon the party using or upholding the same, and such proof may be led in any action or proceeding in which such deed, 'instrument, or writing is founded on or objected to, or in a special application to 'the Court of Session, or to the Sheriff within whose jurisdiction the defender in any 'such application resides, to have it declared that such deed, instrument, or writing was subscribed by such granter or maker and witnesses.'

The Act of 1874 does not apply to deeds executed before it came into operation (1st October 1874).—Gardner v. Lucas, etc., 8 February 1878, 5 R. 638; affirmed 21 March 1878, 5 R. (H. L.) 105.

The 39th section was held not to apply to a case where the signatures of the witnesses were adhibited to a deed before it was signed by the granter, and the so-called witnesses neither saw the granter sign, nor heard him acknowledge his subscription; -Smyth v. Smyth, 9 March 1876, 3 R. 573. In the case of M'Laren, etc., v. Menzies, (20 July 1876, 3 R. 1151), a deed consisting of more than one sheet, subscribed by the granter and witnesses on the last page only, was admitted to proof under sect. 39Lord Deas observing that it was the omission of this very solemnity' (the granter's subscription of each page when the deed consists of more than one sheet) and no other omission, which the Statute contemplated might be remedied by a proof.'

CHAPTER II.

I HAVE now detailed the enactments applicable to the execution of ordinary deeds by private parties.

We shall, by and bye, in connection with this or other branches of the Course, have to consider the solemnities in reference to the authentication of Instruments of Sasine, Messengers' Executions, Decrees 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.

SUBSCRIPTION

OF PARTIES WHO

1. First then, of the subscription of parties who can write. Deeds by such parties when written bookwise,-the mode now almost CAN WRITE. 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.1 On appeal to the House of Lords, the objection to the deed in Smith's case, that the last page only was duly signed, was abandoned at the bar; but Lord Gifford stated

1 Williamson v. Williamson, 21 Dec. 1742, M. 16,955; Smith v. Bank of Scotland, 4 July 1816, F.C.

SIDESCRIBING.

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 case 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.

a

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."

If the deed is written, according to the ancient form, in a roll, it 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

1 Smith v. Bank of Scotland, 4 June 1824, 2 Sh. App. 265.

2 Bushby v. Renny, 23 June 1825,

4 Sh. 110.

3 Dury and Doig v. Dury, 11 March 1753, M. 16,936.

Dempster v. Willison, 15 Nov. 1799, M. 16,947.

5 Thomson v. M'Crummen's Trustees, 1 Feb. 1856, 18 D. 470, affirmed 24 March 1859, 31 Scottish Jurist, 425.

a In the case of Gardner v. Lucas, etc., before referred to (page 34), a deed consisting of seven pages, written book wise, was held improbative under the Act of 1696, being signed by the granters on the seventh page only, the other pages being initialled by them.

Deas held the Act of 1696 as a statutory confirmation of the custom previously in operation; and in the case of Macdonald,' a deed, consisting of two sheets, and not sidescribed at the joining, was found null. Here the Court held the Act of 1696 as establishing the custom of sidescribing at the joinings.

SCRIPTION.

With regard to the mode of subscription, it was anciently not MODE OF SUBunusual for persons possessing land estates in Scotland, though not Peers, to subscribe the name or title of their lands in place of their ANCIENT MODE Christian name and surname. Mr. Ross2 gives some curious information

as to the early practice on this point, adding, 'that some signed by their surname, without the Christian name; and many by the name of their 'lands, altering the title with their property.' But by the Act 1672, cap. 21, passed with reference to the Office of the Lyon King at Arms, it is declared that it is only allowed for Noblemen and Bishops to 'subscribe by their Titles; and that all others shall subscribe their 'Christened Names, or the initial letter thereof, with their Surnames; and may, if they please, adject the designations of their lands, pre'fixing the word "of" to the said designations.' This Act contains the rule now in force on this subject. In one case3 a deed subscribed by a commoner thus, 'Fullerton of that Ilk,' without his Christian name, was sustained; but this solitary decision, to which our practice is wholly opposed, is not to be regarded as of authority, at least with reference to any modern deed.

I may here notice, as the mode of subscription in this country, that the Sovereign usually superscribes, the other members of the Royal Family subscribe their Christian names only, the Sovereign adding to her or his superscription the letter R for Regina or Rex. Peers subscribe by their title of honour alone-a privilege extended by custom to the eldest sons of Peers enjoying titles by courtesy merely. Bishops, by which we are to understand only those of the English Episcopal Church, drop their proper surname, and subscribe in place of it the name of their diocese. Peeresses in their own right, or whose title arises from marriage, including the wives of Peers by courtesy, subscribe their Christian name, in the same way as if they were commoners, and also their own or their husband's title of honour, as the case may be.

The Act requires all other parties to adhibit their Christian names in full, or the initial letters thereof; but custom allows an abbreviated form of the Christian name at discretion; and, except in the case of notariespublic acting officially, who, when so acting, are required to adhere to the subscription adopted by them on admission to their office, parties may either adhere consistently to one form of subscription on all occasions, or adopt sometimes one, sometimes another. Uniformity of practice, however, in this particular, is much to be desired. The surname must

1 Macdonald v. Macdonald, 18 Dec.

1714, M. 16,808.

2 Ross's Lectures, i. 127.

3 Gordon v. Murray, 21 June 1765, M. 16,818.

IN SCOTLAND.

REGULATED BY

дст 1672, с. 21.