Essentials of notarial sub of the deed, and subscribed a docquet which had to be holograph of one of them, Henry, 9 Macph. 503. The docquet required to state that warrant was given them to sign, see Dallas, M. 16,839; Birrell, M. 16,846. (4.) The witnesses had-(a) to know the granter, or to have credible information that he was the granter of the deed; (b) to see or hear authority given for the subscription; (c) to see the notaries subscribe; and (d) to subscribe as witnesses to the subscription of the notaries. (5.) The notaries required to have no interest in the deed, Ferrie, 1 Macph. 291, and compare Gibson, M. 16,879. (6.) A parish minister could, within his own parish, act as notary in the execution of testamentary writings, Ersk. 3, 2, 23. Since 1st October, 1874, these facts concerning notarial scription sub- execution under section 41 of the Conveyancing Act, sequent to 1st October, 1874, 1874, require to be remembered : (1.) The notary-public or justice of the peace requires (2.) The deed before being subscribed has to be read (4.) The witnesses require-(a) to know the granter or to (e) to subscribe as witnesses to the subscription (5.) The notary or justice must sign a holograph docquet setting forth that the granter of the (6.) The notary or justice of the peace must have (7.) A parish minister can still act as notary in the own parish, and, in doing so, he can use the The form of docquet given in Schedule I of the Con- Form of docveyancing Act, 1874, is as follows: By authority of the above-named and designed A B, who declares that he cannot write on account of sickness and bodily weakness [or never having been taught, or otherwise as the case may be], I C D [design him], notary-public [or justice of peace for the county of (name it), or as regards wills or other testamentary writings executed by a parish minister as notary-public in his own parish, minister of the parish of (name it)], subscribe these presents for him, he having authorised me for that purpose, and the same having been previously read over to him, all in presence of the witnesses before named and designed, who subscribe this docquet in testimony of their having heard [or seen] authority given to me as aforesaid, and heard these presents read over to the said A B. E F, witness. G H, witness. (Signed) A B, Notary-Public [or Justice of the Peace or Parish Minister]. quet where granter of deed cannot write. Privileged writings. I. Writings in re mercatoria. CHAPTER III. PRIVILEGED WRITINGS; OR, WRITINGS WHICH DO NOT PRIVILEGED deeds or writings are those which are quite II. HOLOGRAPH WRITINGS. III. TESTAMENTARY WRITINGS. IV. FOREIGN DEEDS. I. WRITINGS IN RE MERCATORIA.-Writings in re mercatoria are, according to Professor Bell, 1 Bell's Com. 342, "bills, notes, and checks upon bankers; orders for goods, mandates, and procurations; guarantees; offers and acceptances to sell, or to buy wares and merchandise, or to transport them from place to place; and, in general, all the variety of engagements, or mandates, or acknowledgments, which the infinite occasions of trade may require." Writings in re mercatoria do not require to be attested; they are valid if merely subscribed, and they may be subscribed either by name, or, if the granter is in the habit of so subscribing, even by initials, or by cross or mark, Bryan, 2 W. and S. 568; Piery, M. 16,801; Thomson, M. 16,810; Brown, M. 16,803. The mark or cross is usually attested by a witness or witnesses, but such attestation is not necessary, Ker, 1803, Hume, 50; Craigie, 10 S. 510; Brown, M. 16,802; Kennedy, May 25, 1816, F.C.; nor a for tiori is it necessary that the initials should be adhibited before witnesses, Shepherd, M. 16,818; Thomson, M. 16,968. An acknowledgment for cash advances apart from a mer- Exceptions. cantile transaction, Hamilton's Executors, 21 D. 51; Purvis, 7 Macph. 764; an obligation of relief from payment of a bond, Crichton, M. 17,047; and a contract of service for two years, Stewart, 7 Macph. 544, have been held not to be writings in re mercatoria. See also M'Adie, 10 R. 741. graph of a firm? by one party him and II. HOLOGRAPH WRITINGS.-Deeds which are entirely II. Holograph writings. holograph, or the substantial parts of which are holograph, do not require to be attested by witnesses, Stair, 4, 42, 6; Ersk. 3, 2, 22; Christie's Trustees, 8 Macph. 461; Maitland's Trustees, 10 Macph. 79. A letter written and What is holosigned by a partner of a company in the firm's name is deemed holograph of the company, Nisbet, 7 Macph. 1097; but a deed written by one of several parties and signed by Deed written them all, is not the holograph writ of those who only signed and signed by it, and will be valid against the writer of it only if the con- others. stitution of obligations against him is not dependent on the constitution of obligations against the others. See Dickson on Evidence, § 756, and authorities there cited. Writings Writings holoholograph of authorised agents are as binding as writings authorised holograph of the parties themselves, Whyte, 6 R. 699; and see Scottish Lands and Building Co., 7 R. 756; Sinclair, 8 R. (H.L.) 78. A writing may be adopted as Adoption of holograph by a holograph statement to that effect. Thus, holograph. in the case of Gavine's Trustee, 10 R. 448, an offer to feu land was neither tested nor holograph, but appended to the offerer's signature, and in his own handwriting, were the words "adopted as holograph;" and the offer, in respect of this holograph adoption, was held to be holograph. graph of agents. writing as If a deed sets forth that it is holograph, the statement Proof of holo graph character of deed. Is subscription essential to holograph deeds? Holograph testamentary documents require subscription. What holo graph writings not signed. is held to be prima facie evidence of the fact, and the onus of shewing that it is not so is on the challenger. But if this fact is not stated, then the onus of proving that the deed is holograph is on the party who desires to uphold it, Anderson, 3 Macq. 180. Of holograph deeds Stair says: "If they be not subscribed, they are understood to be incomplete acts from which the party hath resiled; yet if they be written in count-books, or upon authentic writs, they are probative, and resiling is not presumed," Stair, 4, 42, 6. The cases of Dunlop, 1 D. 912; Skinner, 11 R. 88; and Goldie, 13 R. 138, are all cases in which holograph testamentary deeds were held to be incomplete from want of the writer's signature. These cases establish the rule that holograph testamentary documents although superscribed, or with the writer's name in gremio, but not subscribed, are not valid, and that this defect cannot be cured by parole proof that the maker intended that the document should receive effect as a settlement. Dealing with Stair's valid though dictum that if holograph writings are "in count-books or upon authentic writs," they, though unsigned, are valid, Lord Shand said, in the case of Goldie, that Stair "refers to entries in regular books, which never are subscribed or require subscription, to markings by the creditor on the back of a bond or other security of payments to account, and the like, entries which most commonly have no subscription, and not to testamentary documents, which have always been held to require subscription." Holograph markings by a debtor in an accountbook kept by the creditor, Stair, 4, 42, 6; holograph receipts for partial payments indorsed on a bond, Currence, 2 B. Sup. 121; a holograph postscript to a holograph and signed letter, Wauchope, M. 16,965; a docquet holograph of a notary and containing in gremio his name, Cullen, M. 16,842, have all been held valid although not signed. |