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the testing clause bore that the deed consisted of this and the six pre'ceding pages,' the letter 'x' of the word 'six' being written on erasure. The deed was, however, sustained.' The like decision was pronounced where the letters 've' of the word 'twelve' were written on erasure.2 In these cases it was considered that there was enough to satisfy substantially the requirement of the Act, independently of the letters written on erasure. A more difficult question arose in the earlier case of Henderson,3 where the testing clause bore that I have, to the eleven first sides of this my Procuratory of Resignation, contained in three sheets of paper, 'set my hand, and to the last side thereof my hand and seal.' The report is abridged thus in Morison's Dictionary,-'The objection to a deed, 'that it did not mention the number of pages, repelled; because it bore 'that it was written on three sheets of paper, and that the eleven first 'sides were signed by the granter, and the last by the granter and wit'nesses.' This case had various elements in it, the party having executed several deeds of settlement. Ultimately it was found by the House of Lords, reversing the judgment of the Court of Session, that the deed with the testing clause above quoted was the governing settlement, which they could not have held if the deed had not been considered duly authenticated according to law. It does not appear that the opinion of the Court of Session was different from that of the House of Lords on this particular point; but still the case was not purely on the Statutes, and it can give no authority for departing from the general rule. There is another case to which a similar caution applies. A contract of marriage, written upon several sheets of stamped paper, which did not mention the number of the pages in the testing clause, was sustained; the report stating three reasons,-'first, because it was a marriage con'tract and therefore more favourable than another deed; secondly, because 'the pages were numbered; and, lastly, there was a catchword at the 'bottom of each page, so that it was impossible anything could be foisted 'in.' Upon this case I will just remark, that a contract of marriage, upon which marriage has followed, has always been justly regarded as entitled to special favour. Such a deed may be sustained, where pro

bably no other deed would.

A doubt was at one time suggested whether the Act of 1696, cap. 15, was intended to convey the sanction of nullity to the omission to specify in any case the number of the pages of which a deed consists; and, in support of the view that such sanction was not contemplated, it has been urged that the Act does not expressly annex the sanction of nullity to the non-observance of its conditions. But it is to be observed that the Act of 1696 is a permissive Act, granting to parties making private deeds, which consist of two or more sheets, the privilege or option of

1 Cassillis' Trustees v. Kennedy, 2 June 1831, 9 Sh. 663.

2 Gaywood v. M'Eand, 19 June 1828, C Sh. 991.

3 Henderson v. Wilson, 31 Jan. 1797, M. 15,444 & 17,059.

4 Porteous v. Bell, 4 Feb. 1757, 5 Br. Sup.

855.

PAGINATION.

PLACE OF
SIGNING.

writing such deeds bookwise in place of in rolls as formerly. But such privilege or option is entirely dependent on the Statute, which requires, as conditions to be observed in the exercise of the privilege, the specification of the number of the pages of which such deed consists, the signing of each page by the party, and the marking of the pages by their numbers, all as already explained. Whilst these conditions were all in force, the non-observance of them, or of any one of them, rendered it impossible to found upon the Act in support of the deed. Deeds, therefore, which did not comply with the conditions of the Act, were not entitled to the benefit of the Act, and were null. This was conclusively settled in the case of Thomson.1 That case related to the omission to mark the pages of a deed by the numbers first, second, etc., at the top; the provision as to which then stood on precisely the same footing with that regarding the mention of the total number of pages in the testing clause; and it was decided that the deed in question was not executed in the manner provided by the Statute, and, therefore, was not authenticated and probative by the Law of Scotland.

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In a recent case,2 where a deed was written on the face, or one side, of five sheets of paper, the testing clause bore that the deed was written on this and the four preceding skins' of parchment. This deed was thought by Lord Cowan, Ordinary, to be defective under the Statute; one side of each sheet being blank; but that point did not require to be settled by the Court.

a

The Act of 18563 has, as already mentioned, done away with the marking of pages by their numbers as a solemnity; but specially without affecting the provision in the Act of 1696 as to mentioning, in the testing clause, the number of the pages of which the deed consists, or the provision for signing each page, or any other provision of the Act of 1696. The Act of 1856 having a retrospective operation, the objection of imperfect marking of the pages, or no marking at all, cannot hereafter be raised in any case. But, although it was clearly expedient to take away the sanction of nullity attached to the omission to mark the pages, such marking is convenient in all cases for reference, as we find paging useful in an ordinary paper or book. It is specially important when there is a marginal addition, or other peculiarity, to notice; and marking of the pages has been found of essential service in some of the cases arising under the Act of 1696, as to mentioning the number of the pages in the testing clause. I therefore strongly recommend the continuance of the old practice in the completion of deeds.

It is usual and expedient, but not necessary in point of solemnity, to mention the place at which a deed is subscribed. Stair states the

1 Thomson v. M'Crummen's Trustees,

1 Feb. 1856, 18 D. 470, affirmed 24 March

1859, 31 Scott. Jurist, 425.

2

Hopetoun v. Scots Mines Coy., 6 March 1856, 18 D. 739.

3 19 & 20 Vict. c. 89.

a As already mentioned (pp. 33 and 62), this solemnity is now dispensed with.

mention of the place as one of the essentials.1 Erskine, on the other hand, whilst admitting that the insertion of the time and place of subscribing may in many cases be a strong guard against forgery, says,2 'As solemnities are not to be multiplied without a warrant from Statute or universal custom, deeds have been adjudged valid without the mention of the place.'3 But in compliance with universal custom, every regular deed ought to specify the place of signing.

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In contracts of somewhat old date, it was usual to insert the place and date at the commencement of the deed. Now, these particulars are almost invariably stated in the testing clause.

4

SUBSCRIBING.

The date of subscription likewise is, by universal custom, specified in DATE OF deeds; and, as the want of it may throw suspicion on the deed, it ought in no case to be omitted; but, except where the validity of the particular deed is dependent on the specification of the date, it is not among the essential solemnities. The date may be of essential importance, where the legal plea of deathbed is brought forward in objection to a mortis causâ disposition of heritage; or in other cases; where, for example, the objection is, that the granter was in minority when he executed the deed. These, and some other questions which the specification of the date might prevent, are suggested by the case of Crawford,5 in reference to a bond wanting date.

With reference to false statement of date, Lord Stair relates a case which is not without its parallel in more modern times. He says,

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'Writs may be improbative by inspection of the stamp or seal of the
paper whereupon the same is written; as, if paper with such a stamp
'or seal was known not to be found at the time of the date the writ
'bears, the writ thereby is not only improbative but improven. Of this
'there was a memorable example, when the Earl of Haddington was
President, at the advising of the articles of improbation of a very
suspect writ, where yet there was not sufficient probation to annul or
'improve it, it fell instantly in the President's mind to look to the
'stamp of the paper, and it was found that there was none such at the
time of the date the writ did bear, whereupon, with common appro-
bation, the writ was improven.' In cases where deeds are open to
suspicion, it is usual at the present day to examine the water-mark of
the paper, and see whether they can be set aside by the test so effectu-
ally applied by the Earl of Haddington.

1 Stair, iv. 42. 19. 2 Ersk. iii. 2. 18. 3 See Vallance v. M'Dowell, 14 July 1709, M. 5840 & 5841, where the deed wanted the place of signing; Ogilvie v. Bailie, 21 July 1711, M. 16,896, and Wemyss v. Hay, formerly cited, 5 June 1821, 1 Sh. 47, affirmed, 1 Wil. & Sh. 140, where both place and date were wanting. 4 See Erskine (iii. 2. 18) correcting Stair iv. 42, 19), by whom an opposite opinion

is expressed. See also the cases of Ogilvie
and Wemyss before cited.

5 Crawford v. Duncan, 6 June 1666,
M. 16,927.

6 The test is not always conclusive, as some paper-makers are in the practice of post-dating the water-mark, to this extent, that paper made in the latter portion of a year may bear the date of the year immediately following.

a The plea of deathbed was abolished by 34 and 35 Vict. cap. 81. VOL. I.

E

EXECUTION OF

DEEDS ON SUN

DAY.

It is not a good legal objection to a private deed that it is dated on Sunday. This has been decided as to a bond,' and as to a bill. A distinction, however, is taken between private deeds executed on Sunday, and judicial acts or civil process done on that day. The functions of civil Courts being suspended on Sunday by law, acts proceeding under their authority cannot be legally performed on that day. Diligence executed on Sunday is therefore null; but there is an exception in the instance of meditatio fuga warrants, from the necessity of the case.*

1 Duncan v. Bruce, March 1684, M. 15,003.

2 Elliot v. Faulke, 20 Jan. 1844, 6 D. 411.

3 Oliphant v. Douglas, 3 Feb. 1663, M. 15,002; and Lord Mackenzie in Mait

land v. Duncan, 13 Dec. 1861, 24 D. 198; Hume's Criminal Law, i. 392.

Kempt v. His Creditors, 16 Jan. 1786, M. 8554; Blair v. Simpson, 6 July 1821, 1 Sh. 107.

CHAPTER IV.

TION OF ALTERA

I NOw proceed to consider the mode of authenticating erasures, AUTHENTICAmarginal additions, and other alterations on ordinary deeds, and the TIONS ON DEEDS. effect of such alterations when not duly authenticated. The subject is practically of great importance, and it will therefore be considered at some length.

There is no statutory provision as to the manner of authenticating alterations on deeds in general. But practice, our institutional writers, and the decisions of the Courts of law, have laid down rules which form a safe guide, except, perhaps, that there is still a little want of precision in regard to the authentication of marginal additions.

Deeds which are free of vitiations and alterations are rendered probative by observance of the statutory solemnities already detailed; or if holograph, they are probative as privileged. With regard to alterations in holograph testamentary writings, there are peculiar rules, different from those affecting deeds written by third parties, or not testamentary. In ordinary deeds where alterations occur, and the deeds are not in the exact form in which they were originally engrossed; where words have been erased, and others superinduced on the erasure; or where words have been deleted, or additions have been written on the margin; explanation is required, in order to show that the alterations were competently made, both as regards the time when, and the authority under which, they took place; otherwise, such deeds might be altered as to their subject-matter by the holders, after delivery had taken place; and the granters would be exposed to the fraudulent manufacture in their names of what they never consented to. Illustrations of the facility with which this might be done will readily suggest themselves. For example, the conveyance of a farm, 'excepting two fields,' might, after being delivered and in the hands of the disponee, have the word 'excepting' altered to 'including;' or the word 'not' might be introduced in, or delete from, a clause, to the subversion of the true purpose of the granter. In order to protect parties against such risks, the common law requires in every case of alteration in the body of a deed (not being a holograph testamentary writing), proof, of a special nature, that the same was made before the deed was executed. If competent proof be given.

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