TITLE II. PRIVILEGED WRITINGS. HOLOGRAPH CHAPTER I. HAVING now explained the solemnities applicable to the authentication of deeds in general, we have to notice the classes of deeds which, as regards the mode of authentication, are privileged, and to consider the manner in which privileged writings require to be executed, in order to be probative. They are called privileged, because they have the support of the law, though destitute of some, or even of most, of the solemnities essential in ordinary cases. We shall consider, first, Holograph Writings. The object of the solemnities prescribed in reference to deeds in general is, in the first place, to give security of title-protection against the fraudulent fabrication of writings; and secondly, to prevent parties from being entrapped into transactions, by making the execution of deeds a matter of solemnity, and not of mere ordinary occurrence. But, in the case of holograph writings, the statutory solemnities are not necessary for the above purposes, and the Acts do not apply, because the handwriting of any party, through a whole deed, is more difficult to be imitated or counterfeited, and therefore less exposed to forgery, than the bare subscription by a party of his name; and both writing and subscribing a deed is a more trustworthy and deliberate expression of intention than merely subscribing a deed written by another.1 It is very important, and in some cases may be essential, that holograph writings should be subscribed. Lord Stair says, 'Holograph writs 'subscribed are unquestionably the strongest probation by writ, and 'least imitable.' It is not essential, in order to give the privilege belonging to holograph writings, that every word of the deed shall be holograph." Lord 1 Erskine, iii. 2. 22; 1 Bell's Comm. 324; Menzies, 135; Dickson on Evidence, 1. 397; Earl of Rothes v. Leslie, 9 Dec. 1635, M. 12,605; and anonymous case, 1 Br. Sup. 103. 2 Stair, iv. 42. 6. a An I. O. U. must be holograph ;-per Lord Deas in Bowe and Christie v. Hutchison, 19 March 1868, 6 Macph. 542. HOLOGRAPH Stair says, in the passage above cited, 'Writs are accounted holograph PRIVILEGES OF where large sentences are written with the party's hand, although not WRITINGS. 'the whole writ;' and the term 'large sentences' has been construed as meaning the substantial parts of the deed; such, for example, as the sum and the name of the debtor in a bond. Accordingly, a bond was sustained in which the name and designation of the granter, the principal sum and penalty, and the date, were proved to be written by the granter.1 On this principle, as has already been stated, the settlement by Mr. and Mrs. Laurie of Wellfield, spouses,—disponing the husband's heritage, and all written by the husband, except seventeen words of little moment, which were written by the wife,—was held valid as the holograph writ of the husband.2 We formerly saw that the same writ was sustained as having been duly tested; but the Court intimated that they held it probative on each of two separate grounds,-one, that it was holograph of the husband; the other, that it was duly tested. On the other hand, the acknowledgment of the receipt of a sum of money in loan, though signed and addressed by the borrower, was held improbative, no other part of it being written by him, and the writing not being in re mercatoria (this last being a separate ground of privilege in authentication of deeds, as we shall presently see).38 за The privilege attached to holograph writings can, in general, support them only as granted by one individual. Thus, an obligation for £80, subscribed by three individuals, and holograph of one of them, but not authenticated with the solemnities applicable to deeds in general, is not binding on the parties who merely subscribed but had not written it." But a letter, written by the managing partner of a company, and subscribed by him with the company's firm, guaranteeing, to a certain extent, a promissory-note by one of the partners as an individual, has been held probative as against the company.5b And a writing, subscribed by a husband and wife, written partly by the husband on the fly-leaf of a Bible, certifying that they made this agreement that the longest liver was to have all that remained after their debts were paid,' was dealt with as a mutual settlement of moveable estate, and allowed effect in reference to the husband's moveables against his next of kin. The Court refused to treat this paper as an 'agreement,' though the parties had so described it; holding that persons in the humble ranks 1 Vans v. Malloch, 23 Jan. 1675, M. 16,885. 2 Laurie v. Laurie, 14 Jan. 1859, 21 D. 240. 3 Alexander v. Alexander, 26 Feb. 1830, 8 Sh. 602. 6 4 Miller v. Farquharson, 29 May 1835, 13 Sh. 838. 5 Buchanan v. Dennistoun, 29 May 1835, 13 Sh. 841. 6 M'Millan ". M'Millan, 28 Nov. 1850, 13 D. 187. a See Christie's Trustees v. Muirhead, 1 Feb. 1870, 8 Macph. 461, and Maitland's Trustees v. Maitland, 10 Nov. 1871, 10 Macph. 79. b In Nisbet v. Neil's Trustee, 20 July 1869, 7 Macph. 1097, it was held that a letter, written and subscribed by one of the partners of a company in the firm's name, was holograph of the firm. HOLOGRAPH HOLOGRAPH. of life, as the parties in this case were, ought not to be tied down to technicalities of construction; and that the deed, though not described by them with exact accuracy, spoke for itself, as to its real nature, as being that of a mutual will, and was to be dealt with accordingly. A more difficult question would have arisen, if the effect of the document as against the wife had been tried;—she only subscribed it;—but that point did not properly arise. Holograph writings ought expressly to mention that they are written OUGHT TO BEAR by the granter; but it is not essential that they shall state the fact; it THAT THEY ARE is enough, in order to their validity, if the fact be so. When they contain the statement, it will be held prima facie evidence of the fact, and the onus of proving the contrary will be thrown upon the challenger. But, if the fact is not stated in the writ, the onus of proof that it was written by the granter appears to lie on the party founding on the writ.3 The mode of proof will not be confined to comparatio literarum. Facts and circumstances generally will be considered. In a case where a writ, alleged to be holograph, but which did not bear in gremio to be so, was challenged on the ground of forgery, an opinion was indicated by Lord Jeffrey, that the user of the writ discharged the onus laid upon him by adducing primâ facie evidence that the body of the writ was in the same hand as the subscription, and that the onus of proving forgery then lay upon the challenger. But that view, if Lord Jeffrey is correctly reported, must have been expressed incautiously. On this point, I refer you to the Lord Chancellor's remarks on it, and explanation of its only legitimate meaning, in Anderson's case. DO HOLOGRAPH We have seen that, in the case of deeds in general, it is competent to raise the objection that the subscribing witnesses neither saw the party subscribe, nor heard him acknowledge his subscription. But that objection is not relevant in the case of holograph writings, even when these bear to be subscribed before witnesses, unless the date be essential to the efficacy of the deed, because such writings are valid whether the subscription was duly attested or not.5 Yeats' case was that of a testamentary writing applicable to heritable estate in Scotland, but there was no challenge on the head of deathbed, so as to make proof of the date essential. Holograph writings, without witnesses, prove their own date as against the granters, in questions where third parties are not interested;" but not against third parties, as the insertion of the date is merely the granter's statement that the writ was subscribed upon such a day. Practically this is a matter of necessity, otherwise parties might, when not controlled by witnesses, ante-date writings, by which their heirs might 1 Erskine, iii. 2. 22. 2 Robertson v. Ogilvie's Trustees, 20 Dec. 1844, 7 D. 236. 3 Anderson v. Gill, 25 June 1850, 22 Scot. Jurist, 478; affirmed 16 April 1858, 3 Macq. App. 180. 4 Turnbull v. Doods, 29 Feb. 1844, 6 D. 896. 5 Yeats v. Yeats' Trustees, 6 July 1833, 11 Sh. 915. 6 Earl of Dunfermline v. Earl of Callendar, 14 Jan. 1674, 1 Br. Sup. 703. a be cut off from the plea of deathbed; creditors-inhibitors, from the HOLOGRAPH benefit of legal diligence; or a husband from the defence that his wife WRITINGS. had granted the obligation sued on after she was married; or the antedating might take place in order to affect some other right known to exist, or to be capable of existing. It has therefore been found that the date of holograph deeds must be supported aliunde, by adminicles, in questions with the granter's husband;1 or in questions with his heir in heritage; and in various similar cases. Holograph letters, however, from the proper parties, intimating and acknowledging notice of the assignation of a debt, are allowed in proof of the intimation and of its date, even against an arrester of the debt assigned. It is apparently a sufficient reason for the exception, that the holograph intimation and acknowledgment lie not in the hands of the writers thereof respectively, but of the debtor and creditor in the debt assigned. The presumption of deathbed, applicable to mortis causâ deeds of DEATHBED. heritage, is not admitted against a holograph deed, when the granter has died an unnatural death. The consideration of exceptional cases, in connection with the legal presumption of deathbed, is discussed by Sir Thomas Craig, who debates how far deeds granted by one going straight to fight a duel, or where the plague is raging in a town, or by one going to be cut for the stone, are reputed to be done on deathbed. To this category may be added the case of one under sentence of death for a crime. As a general rule, in the case of a holograph testamentary deed, TESTAMENTARY when the question of deathbed is not involved, the date is of no im- WRITINGS. portance, and it is irrelevant to allege that the deed bears a false date.b Moreover, where the granter of a holograph deed, bearing a certain date, was proved to have become insane at a subsequent period, and died insane, it was found that there was no presumption that the deed was executed during insanity. It is clearly, however, advisable in practice, in regard to such holograph writs as require for any cause to have their dates proved aliunde,-for example, gratuitous deeds intended to affect the granter's heirs in heritage, or deeds which may be founded on in competitions among creditors,—to adopt means for preventing all question respecting the date. This can be done by recording them in the Register of Sasines, if they are conveyances of lands; intimating them, if they 1 Temple v. Lady Whitinghame, 20 Jan. 1636, M. 12,490. 2 Calderwood v. Schaw, 14 Nov. 1668, M. 12,607. 3 Earl of Selkirk v. Gray, 22 July 1708, M. 4453; as reversed 14 March 1708, Robertson's App. 1. See also the date. earlier case of, M'Gill v. Hutchison, 22 4 Graham v. Stansfield's Creditors, 19 a The plea of deathbed was abolished by 34 and 35 Vict. cap. 81. 6 b Holograph testamentary writings are now privileged by Statute as regards their The Act 37 and 38 Vict. cap. 94 declares, sect. 40, that every holograph writ'ing of a testamentary character shall, in the absence of evidence to the contrary, be 'deemed to have been executed or made of the date it bears.' VOL. I. F HOLOGRAPH are assignations of debts (and this had best be done notarially in such cases); or, in any case, by recording them in a register for preservation. 3 Holograph deeds ought to be subscribed by the party, as the best evidence of their being completed instruments. Stair says,1If they be 'not subscribed, they are understood to be incomplete acts from which 'the party hath resiled; yet if they be written in compt-books, or upon ' authentic writs, they are probative, and resiling is not presumed.' The test to be applied is whether the writ is complete or incomplete. A holograph testament, though wanting date and witnesses, and not subscribed, was sustained in an old case.2 The writing will be more readily supported if connected with a formal and regularly complete document. Thus a holograph receipt, by the creditor in a bond, for £50 to account, written on the back of the bond, but not subscribed, was sustained. Still more readily will the holograph document be sustained, if it is such a writing as is not usually subscribed. In the case of Wauchope, it was found no objection to a promise contained in the P.S. to a holograph signed letter, that the P.S. was not subscribed. Similar decisions arising out of postscripts to letters were pronounced in the cases noted below. Of course the letters themselves must be subscribed and complete, otherwise the P.S. cannot be sustained. The subscription or non-subscription, however, is of critical importance in the question whether a holograph writ is completed or not. In the case of Dunlop, a holograph writing, commencing with the name and designation of the party, and purporting to operate a general distribution of his estate, as his last will and settlement, but wanting the subscription and bearing sundry other marks of incompleteness,-for example, two clauses naming legatees, but leaving the amount of their legacies blank, was held invalid.a 6 a This case may be contrasted with that of Weir v. Robertson, 1 Feb. 1872, 10 Macph. 438, in which an unsubscribed holograph writing, relating to heritage, which contained the granter's name in gremio, and was delivered for the purpose of being acted on, and was acted on, was held binding on him. See also Speirs, etc., v. Home Speirs, 19 July 1879, 6. R. 1359; Caithness Flagstone Quarrying Company v. Sir Tollemache Sinclair, 9 July 1880, 7 R. 1117, affirmed 7 April 1881, 8. R. |