DEEDS BY BLIND PERSONS. SUBSCRIPTION and ought to subscribe his own deed. The question in Reid's case he is stated to have held as turning on Reid's defective power of seeing. I am inclined to doubt the correctness of this report of Lord Glenlee's views; as Lord Fife's case establishes that, in respect of the Statutes regarding the subscription of deeds, all persons who can write ought to authenticate their deeds by their own subscriptions. In fact there is no statutory solemnity applicable to the blind, as contradistinguished from other parties. Lord Moncreiff, the Lord Ordinary in Ker's case, speaks distinctly to this effect in a note, the whole of which I recommend to your perusal. He says, 'The law appears to the Lord Ordinary 'to be very plain. Blindness is no statutory objection. The judgment ' of the House of Lords, in the Fife case, decided that, by itself at least, 'it is no objection at all.' I have always felt, however, that the execution of deeds by blind persons themselves, and without notaries, is somewhat unsatisfactory; the parties are so much in the hands of those about them, and unable to identify the deed they put their names to, with that which they intend to subscribe, whether read over to them or not; and I think the safe practical rule, even when parties can write their names, is to get their deeds authenticated by notaries, as well as by their own subscriptions. I have already said, that, as a matter of propriety, plainly recommended by the words of the judgment in Lord Fife's case, and in accordance with custom, the deeds should be read over to the parties, in presence of the witnesses, before they are subscribed, and that the fact of such previous reading should be stated in the notaries' docquet. Notaries should also, when executing such deeds, express in their docquet, with the utmost accuracy, the true state of the granter's defect of vision, as explained by himself. Professor Menzies1 advises that the witnesses to 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 Erskine2 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. In one case of very old date, it was held enough to prove the verity 1 Menzies, p. 109. 2 Erskine, iii. 2. 8. 3 Ross's Lectures, i. 136. of the subscription by the witnesses.1 And, where the party did not deny the initials to be hers, an obligation so signed was sustained.2 Sir George Mackenzie speaks of the custom of so subscribing, as all that required to be proved to support the deed.3 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. 6 a A MARK. 5. There is no known instance of a deed, which would require the SIGNING BY 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 by see; but in regard to deeds it is absolute.7b 1 Grierson v. Grierson, 14 Feb. 1633, M. 16,802. 2 Earl of Traquair v. Gibson, 16 Dec. 1724, M. 16,809. 5 Couts v. Straiton, 21 June 1681, M. 16,804. 6 Barber v. Caddell, 26 May 1790, Hume 906, discussed in Din v. Gillies, 18 3 Mackenzie's Institutions of the Law of June 1812, reported in a note to Weirs v. Scotland, iii, 2, 4. Ker v. Gibson, 20 Jan. 1693, M. 16,805; Weirs v. Ralstons, 22 June 1813, F. C. Ralstons, before cited; Graham v. Macleod, a On this subject generally, see remarks per curiam in Gardner v. Lucas, etc., 8 Feb. 1878, 5 R. 638, affirmed 21 March 1878, 5 R. (H. L.) 105. b Writs under the Marriage Notice (Scotland) Act, 1878, may be subscribed by a cross or other mark; 41 and 42 Vict. cap. 43, sect. 16. VOL. I. D WITNESSES' WHO MAY BE AN CHAPTER III. PASSING now from subscription of party, we have to consider the 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.a 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 The question, who may be an instrumentary witness, naturally occurs here. In general, every male of the age of fourteen or upwards, and who 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,2 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.b a See notes on preceding Chapter, as to one notary and two witnesses being now sufficient. b The Act 31 and 32 Vict. cap. 101, sect. 139, authorises any female person of the age of fourteen and upwards, and subject to no legal incapacity, to act as an instrumentary witness; and this enactment has a retrospective effect, as it is declared that it shall not be competent to challenge any deed, or conveyance, or writing, or document of 'whatever nature, whether executed before or after the passing of this Act on the 'ground that any instrumentary witness thereto was a female person.' The legal incapacity' here referred to is the same sort of incapacity as that applicable to male witnesses, and would not apply to married women qua such. NOT ATTEST SUBSCRIPTIONS. Though there are several parties to a deed, they cannot be witnesses PARTIES CAN to one another's subscriptions. Erskine1 says a deed subscribed by a EACH OTHER'S number of persons, members of a corporate body, or even by a number 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 Forrest2 and Seabox of Queensferry; but the former of these cases was decided on the ratio of the deed being in re mercatoria, and therefore in a class of writings which, as we shall see, are privileged as regards 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. 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. NOT ATTEST The grantee cannot be one of the witnesses to the deed in his own GRANTEE CAN favour. One of the two notaries subscribing for a party cannot be one DEED IN HIS of the witnesses to the subscriptions of himself and his co-notary as for OWN FAVOUR. 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;10 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 But it is not desirable that married women should attest their husbands' signatures to deeds. A question having been raised whether, looking to the terms of the preamble of the Act, the provisions of sect. 139 applied to deeds relating to moveable as well as those relating to heritable property, the Court held that the enactment was not limited to deeds relating to heritable property; Hannay and others, Petitioners, 1 Dec. 1873, 1 R. 246. WITNESSES MUST SUBSCRIBE WITHOUT MUST ADE THE PARTY. 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. The witnesses must themselves subscribe without assistance. The 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 QUATELY KNOW 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.2 MENT OF SUB SCRIPTION. It is not necessary that the witnesses shall have personal knowledge of the party. It is enough that they have credible information that the subscriber is 'the true person' designed in the writ.3 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 ACKNOWLEDG- 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.5 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 authorised the witnesses to subscribe. The parties left the deed designedly thus incomplete, in the hands of one of |