office(p) is not a disqualification; (6) persons who cannot write; (7) persons who do not know the granter, (2)—at least the witnesses must have credible information as to the granter's identity before signing.1

28. Is it essential that the witnesses to a party's subscription shall in all cases immediately subscribe?

It is not essential when the party signs in presence of the witnesses, but it is essential when the subscription is acknowledged, as the Act 1681 forbids witnesses to subscribe unless "the party did, at the time of the witnesses' subscribing, acknowledge his subscription."(r) [Spoken words are not necessary to such an acknowledgment, Cumming, 6 R. 963.]

29. What is the effect of vitiations in deeds?

Vitiations in the essentials, not authenticated in the testing clause, are presumed to have been made fraudulently after execution, and without the granter's authority; or otherwise that they have been made by the granter for the purpose of cancellation; and they annul the whole deed, unless when separable, as in the case of legacies in testaments. Vitiations not in essentials will be held pro non scriptis if the deed is intelligible without the words vitiated, and there is no room to infer fraud." It has been decided

1 Ersk. 4, 2, 27; Dickson Evid. i. 370 (§ 689 et seq.).

2 Ersk. 3, 2, 20; Ross Lect. i. 144; Shepherd v. Grant, 24th Jan.

1844, 6 D. 464; aff. 21st July, 1847, 6 Bell's Ap. 153. See also an instructive article on this subject in the Journal of Jurisprudence, ii. 291.

(p) Such as that of trustee or executor. In practice it is better to avoid having deeds attested by any one who is either a party to or interested under them.

(9) Act 1681, c. 5.

(r) A question was lately raised as to the meaning of this part of the Act. It was objected to the testing of a deed that the two instrumentary witnesses who had heard the granter acknowledge his subscription had not been in presence of each other when they did so; but the objection was repelled; Hogg and Others, 12th March, 1864, 2 M'P. 848. The point seems to have been previously decided in the same way; Robertson, 1st Dec., 1823, 2 S. 544.

In Miller, 20th Feb. 1829, 7 S. 444, an objection to a deed that the testing clause bore that it had been "written," but not that it had been "subscribed," before the witnesses, was repelled.

in the House of Lords that, although deleted words in holograph wills cannot be restored, they may be read to see what the granter at one time intended.1

30. If the granter admits that vitiations, not authenticated in the testing clause, were made before subscription, will that be sufficient to sustain the deed?

Such an admission is not sufficient, because the authenticity of a deed cannot be proved by extrinsic evidence. "To admit such evidence would be contrary to the nature of a probative instrument the very admission of the necessity of such proof being also an admission of the invalidity of the instrument."Per Lord Wood.3

31. A deed bore to be in favour of "John," one of the granter's sons, but the name was written on erasure throughout the deed. The testing clause stated that these presents "are subscribed by me in favour of the said John, my son," but it did not refer to the erasures; Was the deed valid? State the reason.

No; because there must be a specification of the erasures in number and position; while in this case there is nothing to exclude the supposition that the deed had been executed in favour of another, and that, either from a change of purpose in the granter, or in order to correct an error, it had been altered in the interval between its execution and the completion of the testing clause.*

32. What is the effect of a marginal addition in one duplicate of a contract but not in the other?

A marginal addition on one of the duplicates is probative against the party who is possessed of and founds on that duplicate;

1 Mags. of Dundee v. Morris, 1st May, 1858; H. of L., 3 Macq. 134. * M'Farlane, M. 8459; Bell's Conv. 145, note.(8) Church of Eng

land Assurance Co., 12th Feb. 1857, 19 D. 414.

3 Shepherd, supra, 6 D. 464. 4 Reid V. Kedder, 24th June, 1834;(t) 1 Rob. Ap. 183.

(8) Bell on Testing of Deeds, Lect. iv. p. 108.

(t) 12 S. 781, 6th March, 1835; 13 S. 619, H. of L., 30th July, 1840.

C

but if it is in his favour it is not binding on the other party unless proved by his oath.1

33. What is the effect of a marginal addition being cut away from a duly tested deed, and also of such addition being left unsigned ?

In the first case the deed is invalidated; and in the latter the addition is held pro non scripto.3

34. What is the effect of a deed wanting the place and date of subscription? State the reason.

(1.) A deed wanting the place of execution is valid; because the granter's power of contracting is independent of locality.

(2.) A deed wanting the date is likewise valid, unless its effect depends on its date.*

35. Where both witnesses depone that they neither saw the granter subscribe, nor heard him acknowledge his subscription, is that testimony of itself necessarily sufficient to reduce the deed?

The testimony of the two instrumentary witnesses is not of itself necessarily sufficient to reduce the deed, their evidence being received with suspicion when contradicting their written attestation. There must be collateral proof in support of their testimony, or circumstances of real evidence to corroborate them. Their admissibility is undoubted, but their credibility is a question for the jury."

36. May errors in the testing clause of a deed be corrected after it has been given in to be recorded?

A deed may be borrowed up within six months after it has been given in for registration in the Books of Session, provided

1 Ersk. 3, 2, 20.(u)

2 Cunninghamhead, M. 12274.

3 Carnegie, 4 Br. Sup. 242.

4 Menzies Lect. 120 (124).

5 Cleland, 15th Dec. 1838, 1 D. 254.

(u) The rule, as here laid down by Erskine, is that "it is not binding on the adverse party unless it be supported either by his oath or by posterior relative writings, or in special cases by the testimony of the instrumentary witnesses."

the deed has not been actually recorded ;(x) and an opportunity may thus be afforded for correcting errors in the testing clause, (y) 1685, c. 38. But the Act does not extend to the records of inferior judicatories. [See, however, the Act 31 & 32 Vict. c. 34, § 1, which provides that a deed shall not be taken out after having been given in for registration in the Books of Session, either before or after booking, except by authority of the Court; and Caldwell, 10 M'P. 99, where Court authorised alteration on a testing clause at the sight of the Keeper of the Register.]

37. If an obligation is inserted in the testing clause not connected with the attestation, will it receive effect? State the reasons.

Such an obligation in the testing clause will receive effect, because (1) the testing clause is as much a part of the body of the writ as any other clause, and everything which precedes the subscription is as much authenticated as any other part; (2) the testing clause is presumed to have been filled up before subscription, and it is under the strength of this presumption that filling up afterwards has been sanctioned.1 [But see Chambers, 5 R. 97, and 5 R., H. of L., 151. The Court of Session held that a condition that certain legacies should not be arrestable inserted in a testing clause, was ineffectual. The House of Lords did not decide the point, but doubts of the soundness of decision were indicated by certain of the Lords.]

38. Within what time may the testing clause be filled up?

The testing clause may be filled up at any time before action or execution is raised on the deed, or it is placed beyond control

1 Johnston, 30th June, 1843, 5 D. 1297, per the Lord Justice-Clerk.(z)

(x) The power to get up deeds within six months seems to be absolute, and the effect of the proviso is probably to fix the time before which they shall not be booked, one year being allowed for booking. See report by the DeputyClerk Register in Macleod, infra.

(y) M'Leod, 20th July, 1841, 3 D. 1288, 5 Bell's App. 210.

(z) See also Dunlop, 2nd Nov. 1863, 2 M‘P. 1, H. of L., 2nd June, 1865, 3 M'P. 46.

in a public register.'(a) [See Hill, 9 MP. 223; Veasey, 2 R. 748; Millar, 4 R. 87.]

[39. What are the provisions of the Conveyancing Act, 1874, as to the execution of deeds by companies registered under the Companies' Act, 1862 and 1867 ?

"Any deed executed after the commencement of this Act to which any company registered under the Companies' Acts, 1862 and 1867, is a party, shall be held to be validly executed in Scotland on behalf of such company, if the same is either executed in terms of the provisions of these Acts, or is sealed with the common seal of the company and subscribed on behalf of the company by two of the ordinary directors and the secretary of the company, and such subscription on behalf of the company shall be equally binding and effectual whether attested by witnesses or not." Section 56.]

II. PRIVILEGED WRITINGS.

40. Enumerate the writs which are privileged as regards authentication, and state the reasons for which they

are so privileged.

(1.) Holograph writs on account of the greater difficulty to counterfeit a person's handwriting throughout a deed than to forge the signature; and because writing and subscribing a document is more trustworthy evidence of deliberate intention and freedom from constraint than merely subscribing a deed written by another.2(b)

(2.) Deeds not of "great importance"-i.e., for sums under £100 Scots-because such deeds do not come within the terms of the Act 1579, c. 80 (see Ans. 7); and because obligations within £100 Scots are proveable by parole evidence.

1 Bell's Prin. 2226.

2 Dickson Evid. i. 397 (§ 751).

3

3 Ersk. 3, 2, 13, and 3, 2, 10.

(a) In Shaw, 6th March, 1851, 13 D. 877, it was held that the grantee of an onerous deed which had been executed without a testing clause was entitled ex post facto to insert one, there being sufficient space above the granter's signature.

(b) Stair, 4, 42, 6; Ersk. 3, 2, 22.