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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Laren and Others v. Menzies and Others [1876] ScotLR 13_703 (20 July 1876) URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0703.html Cite as: [1876] SLR 13_703, [1876] ScotLR 13_703 |
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Before The Judges of the Second Division, with
A will consisted of two sheets of paper, the one stitched within the other, the thread being sealed by the granter. The name of the granter was written by way of subscription on the fifth page, followed by a docquet which finished on the sixth page with the names, also by way of subscription, of three attesting witnesses, but without their designation.— Held that this was a “deed, instrument, or writing subscribed by the granter thereof, and bearing to be attested by two witnesses subscribing” within the meaning of the 39th section of the Act 37 and 38 Vict. c. 94, and that parole proof that it was so attested and subscribed was competent.
This was a petition presented to the Court by John M'Laren, advocate, and Thomas Peacock, merchant, Madeira, executors nominate of the late Hon. Caroline E. C. Norton, and by Mrs Scott Gordon and Miss Johnston, the beneficiaries under her will, under the following circumstances:—The Honourable Caroline Elizabeth Conyers Norton died at Quinta das Maravilhas, in the island of Madeira, on the 20th July 1875. She was a British subject, and her domicile of origin was Scotch. She left a last will, dated 13th July 1875, by which she bequeated certain legacies and annuities, and disponed and bequeathed nearly all her means and estate, consisting of heritable and moveable property in Scotland and elsewhere, to the petitioner Mrs Scott Gordon in liferent, and to the petitioner Miss Caroline Elizabeth Mary Johnstone in fee; and she appointed Mrs Scott Gordon her residuary legatee, and the petitioners John M'Laren and Thomas Peacock to be her executors. The will was in ordinary form according to the practice of conveyancers in Scotland, with the exception of the testing clause. It was written on two sheets of paper, and consisted of five pages, exclusive of
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the attestation, which was written partly on the sixth page. It bore the subscription of the testatrix (together with her seal) on the fifth page only. The subscription bore to be attested by three witnesses subscribing, but they were not designed. The last part of the will was as follows:—“Lastly, I consent to registration of these presents for preservation.—In witness whereof I have signed and sealed these presents at my residence, the Quinta das Maravilhas, in the Island of Madeira, this thirtieth day of July one thousand eight hundred and seventy-five. C. E. Norton.
(Seal) Caroline Elizabeth Conyers Norton.
Signed and sealed by the testatrix, the above named Caroline Elizabeth Conyers Norton, and acknowledged by her to be her last will and testament, in presence of us, present at the same time, who at her request, in her presence, and in the presence of each other, have hereunto subscribed our names as witnesses, Quinta das Maravilhas, in the island of Madeira, this thirteenth day of July one thousand eight hundred and seventy-five.
Jno. Holland Payne.
Francis Gorbell Tabb.
‘Frank Burridge Foy’.
“The seal was placed upon the thread by which the two sheets were stitched together.”
By the 39th section of the Conveyancing Act 1874 it is provided—“No deed, instrument, or writing subscribed by the granter or maker thereof, and bearing to be attested by two witnesses subscribing, and whether relating to land or not, shall be deemed invalid, or denied effect, according to its legal import, because of any informality of execution, but the burden of proving that such deed, instrument, or writing so attested was subscribed by the granter or maker thereof, and by the witnesses by whom such deed, instrument, or writing bears to be attested, shall lie upon the party using or upholding the same, and such proof may be led in any action or proceeding in which such deed, instrument, or writing is founded on, or objected to, or in a special application to the Court of Session, or to the Sheriff within whose jurisdiction the defender in any such application resides, to have it declared that such deed, instrument, or writing was subscribed by such granter or maker, and witnesses.” This application was accordingly presented, praying the Court “to allow the petitioners a proof of the averments contained in this petition, and thereafter to find and delare that the last will above mentioned was subscribed by the said Caroline Elizabeth Conyers Norton as maker thereof, and by the said John Holland Payne, Francis Gorbell Tabb, and Frank Burridge Foy, as witnesses attesting the subscription of the said Caroline Elizabeth Conyers Norton.”
Answers were lodged for Honourable Lady Menzies, a sister of the testatrix, and others; and by interlocutor of 14th December 1875 their Lordships of the Second Division allowed the petitioners a proof before answer of their averments. The evidence was accordingly taken on commission, and conclusively established that the deed was signed by Miss Norton and the witnesses of the date it bore; that Miss Norton was fully aware of the contents of the deed that she signed in the presence of the witnesses; and that she herself sealed it with her signet ring.
The Court ordered the case to be heard before seven Judges.
Argued for the petitioners—The word “subscribe” has reference to the signature at the end of the deed, and to that only. Signing each page is a statutory formality entirely different from what may or may not be an operative signature. The object of signing at the foot of each page is the authentication of the sheets of which the deed may be composed. The Act 1681, cap. 5, introduced the subscription of two witnesses, and the Act 1696, cap. 15, the practice of subscribing each page. The practice of “side-scribing” is proper, but not essential: it is founded not on any statute, but on custom. “Subscribing” is only signing at the end of the deed; the placing a signature at the foot of each page is merely “signing,” and took the place of the old “side-scribing.” Read from this point of view, the importance of sec. 39 in the Act of 1874 is evident, and proof is allowed to meet such a case as the withdrawal of one sheet and the substitution of another.
Authorities—Act 1681, cap. 5; Act 1696, cap. 15; Erskine iii., 2, 14; Ross Lectures, pp. 133, 136; Smith, 1816, F.C.; Act 7 Will. IV. and 1 Vict. cap. 26, sec. 9; 15 and 16 Vict. cap. 24; Jarman on Wills, (2d ed.) p. 66; Bell on Deeds, pp. 49, 167; Smyth v. Smyth, 7th March 1876, 13 Scot. Law Rep. 356; Paton, June 8, 1711, M. 16,807.
Argued for respondents—This is not a “deed, instrument, or writing subscribed by the granter.” How is it possible to say whether or not there were any number of pages signed before the last that is signed?—Whether there may not have been pages removed or pages interpolated? The meaning of “subscribing” is the adoption by one person as his own of what is written by another. But it is not only the last page or sheet that is so adopted, it is the whole deed. How, then, can there be adoption of the whole by the signing of one page? It would not be safe merely to proceed upon the etymology of the word “subscribe,” we must look at the reason of the thing. But the reason does not apply only to the last page, which might contain nothing of importance; indeed, perhaps only two words of the testing clause which is not filled up at the time at all; the reason applies to all the pages. The general and ordinary understanding of conveyancers is opposed to the meaning sought to be given to the word “subscription” by the petitioners here, and the Act 1874, in using the word, must be supposed to have intended signature on every page—to hold otherwise would totally revolutionise the practice as to the execution of deeds. This is an attempt to prove this to be the writ of the granter by parole evidence only, and the Act cannot have contemplated any such procedure.
Authorities—Paterson Compend. of English and Scotch Law, sec. 663; Macdonald v. Macdonald, 1714, M. 16, 808; Peter v. Ross, M. 16,957; Syme, 1708, M. 16,713; Thomson v. M'Cubbin's Trs., Feb. 1, 1856, 18 D. 470; Galbraith v. Edinburgh and Glasgow Bank, 24th March 1859, 31 Jur. 425; Addisson, 23d Feb. 1875, 2 R. 457; Thom, 15th June 1870, 8 Macph. 857; Hill v. Arthur,
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6th Dec. 1870, 9 Macph. 223; Veasey v. Malcolm's Trs., 2d June 1875, 2 R. 748; Smyth v. Smyth, 7th March 1876, 13 Scot. Law Rep. 356; Duff's Feudal Conveyancing, p. 63; Bell's Lectures, i. 71. At advising—
The enactment relied on bears that “No deed, instrument or writing subscribed by the granter or maker thereof, and bearing to be attested by two witnesses subscribing, and whether relating to land or not, shall be deemed invalid or denied effect according to its legal import because of any informality of execution, but the burden of proving that such deed, instrument, or writing, so attested and subscribed by the granter or maker thereof, and by the witnesses by whom such deed, instrument, or writing bears to be attested, shall be upon the party using or upholding the same.”
The deed now in question consists of two sheets of paper, the one stitched within the other. The name of the granter is written by way of subscription on the 5th page, followed by a docquet, which finishes on the sixth page with the names, also by way of subscription, of the three attesting witnesses, but without their designations.
The informality of execution which is said to render the present application competent and necessary is that the granter has not subscribed all or any of the first four pages.
The principal Scotch statutes bearing upon the subscription and authentication of deeds (other than sasines, which are not necessary here to be considered) are 1579, c. 80; 1593, c. 179; 1681, c. 5; and 1696, c. 15.
The solemnities required by these statutes have been greatly reduced by recent legislation. Sealing has been long dispensed with. In the case of Thomson v. M'Crummin's Trustees, 1st February 1856 ( 18 D. 470), I came to the conclusion that pagination was essential in deeds written upon more than one sheet, and indeed that all the requirements of the Act 1696, c. 15, were necessary solemnities in deeds written bookways; and in that opinion I was confirmed by the unanimous judgment of the Inner House, affirmed by the House of Lords. It was, however, soon afterwards enacted by statute that the want of pagination should no longer be a nullity. The statute under which we are now asked to proceed provides, in § 38, that it shall be no objection to the probative character of a deed, instrument, or writing, whether relating to land or not,—1st, That the writer or printer is not named or designed; 2d, That the number of pages is not specified-that is to say, not specified in the deed, instrument, or writing itself; 3d, That the witnesses are not named or designed in the body of the deed, instrument, or writing, or in the testing clause thereof, provided that where the witnesses are not so named and designed their designations shall be appended to or follow their subscriptions, to which they may be added at any time before the document is registered for preservation or founded on in Court,—it being farther provided that the designations so added need not be written by the witnesses themselves. Prior to the statute of 1874 each or any of those three objections would have been fatal to the deed, and not suppliable in any way. But if I read the modem statute law rightly, including § 38 of this statute of 1874, a deed is now probative, on the face of it, if three requisites are complied with—1st, If there are subscribing witnesses; 2d, If these witnesses are either designed in the deed or testing clause, or their designations are added to their subscriptions before the deed is recorded for preservation, or is founded on in Court, it being provided, as I have already said, that the designations “need not be written by the witnesses themselves;” 3d, If the deed be subscribed by the granter on the last page in the case of a deed on one sheet only, or subscribed by him on each of the sheets or pages in the case of a deed written on more than one sheet.
If the first of these requisites be omitted—that is to say, if the deed does not bear to be attested by at least two witnesses—no remedy is provided. The objection is necessarily fatal to the deed.
If the second of these requisites be omitted at the time of completing the deed, the remedy is in the hands of the parties themselves—the designations of the witnesses may be appended to their subscriptions as long as the deed is not recorded or founded on in Court, and these designations “need not be written by the witnesses themselves.” If this easy remedy be not timeously adopted, the parties interested have themselves to blame. The deed will not be an effectual deed.
If the third of these requisites be omitted to the extent of having no subscription of the granter on the last page, the deed will of course be ineffectual, as never having been completed by the granter. But if the deed bears to be subscribed by the granter and two witnesses on the last page, then I think, although if it consists of more than one sheet and is not subscribed on the previous sheets or pages as well as on the last page it would be prima facie improbative, there is a remedy provided for this omission by the statute of 1874, and that remedy is, that the party using or upholding the deed shall take the burden of proving that the subscriptions of the granter and witnesses at the end of the deed were truly and intelligently adhibited to the deed. If the deed had been ex facie probative as it stood, the verity of the subscriptions and the binding nature of the deed would of course have been taken for granted, and could only have been disproved by an objecting party in a reduction.
I do not at all depreciate the serious nature of the omission to subscribe the previous sheets or pages of a deed written bookways upon more than one sheet. I think it is the omission of a solemnity required by the Act 1696, c. 15. Prior to that Act, if more than one sheet was used the sheets required to be battered together so as to admit of being rolled up; and side-scribing, as it
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But then I am of opinion that it was the omission of a solemnity, and indeed of this very solemnity, for which sec. 39 of the statute of 1874 was intended to provide and has provided a remedy.
It would have been superfluous to have provided a remedy against trifling informalities which could not affect the validity of the deed. The statute distinctly specifies the nature of the informality to be remedied, viz., “any informality of execution,” and, not contented with this, it describes the informality of execution as one in consequence of which the deed would be “deemed invalid or denied effect according to its legal import.”
There is nothing startling therefore in the fact that the effect of the proof allowed by the statute may be to remedy the omission of a statutory solemnity. That was what the statute intended.
Not only so, but I think it must be clear, from what I have already said, that it was the omission of this very solemnity, and no other omission, which the statute contemplated might be remedied by a proof. There are now only the three solemnities I have enumerated necessary to make a deed probative. The statute does not make the omission of the first—viz., the want of subscribing witnesses—suppliable by proof. It does not make the omission of the second,—viz., the designations of the witnesses in the deed or testing-clause—suppliable by proof, or at least not by the proof merely, but by adding the designations to the signatures or subscriptions before registration or founding on the deed in Court. The omission of the third requisite—viz., the subscription by the granter on all the sheets or pages of a deed written on more than one sheet—remains as the omission, and in fact the only omission or informality, in the execution of the deed which the statute has said may be remedied or supplied by proof. Had it not been for that omission an application such as the present would have been equally unnecessary and incompetent. If sec. 39 of the statute of 1874 does not authorise the remedying of that omission by a proof, it has, so far as I can discover, done nothing at all.
As regards the deed now under consideration in particular; if the first four pages had been subscribed by the granter as well as the last, it would have required no judicial application or aid from the Court to make it in all respects a probative deed. The petitioners might themselves have added or caused to be added the designations of the witnesses, and this application would have been both unnecessary and incompetent.
I do not differ from the observation which has been made, that although subscription by the granter of all the sheets or pages of a deed consisting of more than one sheet be a solemnity, the term subscription, in the language of our old statutes, has generally a peculiar application to the subscription at the end of the deed. I do not think it necessary however to go into that inquiry or to rely upon the result of it. The thing to be proved is, that the deed was “subscribed by the granter or maker thereof and by the witnesses.” These words are, I think, used in the section in their plain and natural sense. No distinction is made in using them between the granter and the witnesses who subscribe only at the end. The section does not say or imply that the granter must sign in the full manner required by the Act 1696. It implies the reverse. If the subscriptions to this deed be genuine the deed is unquestionably subscribed by the granter and witnesses, and that is enough to satisfy the words of the enactment as to subscription.
I may explain that I do not think the proof competent and requisite under the statute was intended to be limited to the bare fact that the subscriptions are genuine. On the contrary, I think that the surrounding facts and circumstances attending the subscription, both of the granter and witnesses,—everything in short tending to satisfy the mind of the Court that the deed was intelligently and deliberately subscribed when in the state in which it appears when submitted to the Court,—may be and ought to be elicited in the proof.
And this leads me to observe that I think the petitioners acted quite rightly in not appending the designations of the witnesses to their subscriptions before presenting this application, because it was very desirable that the Court should see the deed untouched, in the state in which it was left by the testatrix. Whether it would have been equally safe to have produced and founded on it in an action properly so called before adding the designations is a different matter, on which I do not enter. But I do not look upon the production of the deed along with and for the purposes of this petition as a founding upon it in Court in the sense of sec. 38 of the statute; and if your Lordships grant the prayer of the petition, I presume it will be open to the petitioners to add or cause to be added the designations of the witnesses, in the same way as they could have done before this petition was presented.
As regards the proof now before us relative to the deed in question, I have only to say, that to my mind nothing could be more satisfactory; and I am therefore, upon the whole, of opinion that the prayer of the petition ought to be granted.
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I am of opinion that under the terms of this Act, and clause 39 in particular, it is not competent for the Court to interfere in the manner they are asked to do. I do not think it will be necessary to take up much time in stating the grounds of my opinion, which are very simple, and will be I hope easily understood, whatever view may be taken of their validity when I have stated them. The question is one of great importance. No doubt a great deal has been done to smooth away the difficulties and the snares, as they have been sometimes thought, that surrounded the conveyancer's path in getting deeds executed, but. at the same time I think this is one of the strongest that has yet been done; for, as I understand it, it comes to this, as explained by my brother who has preceded me, that if there be a sheet of paper or a scrap of paper containing a man's signature, with nothing above it but a word or a line, and unprincipled persons be got to prefix to it, and allege that he prefixed to it, any number of sheets or pages containing a disposition or conveyance or disposal of his whole estate, of whatever extent or amount, both heritable and moveable, to the prejudice of all other claims upon it, while the line or portion of writing subscribed has no bearing or character of any kind at all to indicate what the intention of the party was, that shall be supplied by parole testimony; that the evidence of two witnesses that this last page, consisting of a single line however informal or unimportant, is the concluding page of 1 or 2 or 20 preceding pages, which they will prove by parole to have been the deed which the party meant to frame or meant to authenticate by his signature upon the last piece of paper. That is a very strong result, and a great change from the original law. I don't dispute that the Legislature is entitled to make changes. The Legislature is entitled to do much—it has almost unlimited powers. It has even the power to do what is wrong, and we are bound to obey it; but it is a very great change to say that the will of a testator as to heritage or as to moveables may be set up entirely by parole testimony, for it comes to that. It is the next thing to making a nuncupative will. There may be no writing that the party ever saw, that contains his will, provided two unprincipled or stupid men can be got to say that it preceded a piece of paper on which his name stands.
Now, what are the grounds on which this is said to be effected? It is based on the 39th section of the Act of Parliament, for I don't find anything in the 38th section that touches this matter much. The 39th section is a peculiar clause, and is not very happily framed, I think, nor very harmonious in all respects. It is a negative clause. It provides that—“No deed, instrument, or writing, subscribed by the granter or maker thereof, and bearing to be attested by two witnesses subscribing, and whether relating to land or not, shall be deemed invalid or denied effect according to its legal import because of any informality of execution, but the burden of proving that such deed, instrument, or writing so attested was subscribed by the granter or maker thereof, and by the witnesses by whom such deed, instrument, or writing bears to be attested, shall lie upon the party using or upholding the same; and such proof may be led in any action or proceeding in which such deed, instrument, or writing is founded on or objected to, or in a special application to the Court of Session, or to the Sheriff within whose jurisdiction the defender in any such application resides, to have it declared that such deed, instrument, or writing was subscribed by such granter or maker and witnesses.” The clause has rather a peculiar commencement—“No deed, instrument, or writing subscribed by the granter or maker,” that seems to be the condition of coming under the Act at all. That is to say, it shall be subscribed by the granter or maker before we know anything about it. Why that expression is used as contrasted with the next thing about the witnesses, I don't quite understand; but it requires as a condition precedent of dealing with the thing at all that it shall be subscribed by the granter or maker thereof, and when we come to the witnesses which are all essential, it says, “and bearing to be attested by two witnesses.” It is not to bear merely that it is subscribed by the granter, it must bear to be attested by two witnesses, but it must be subscribed by the granter. I don't understand the meaning of that, or whether it has any meaning. But the main point that appears to me to be involved in this question is this—there having been no previous enactment in this section that I have heard founded upon with regard to subscription, is it or is it not to be held in this important and serious question that the words—“No deed, instrument, or writing subscribed by the granter or maker thereof”—do or do not mean subscribed in the manner in which they are subscribed at present? No new subscription is prescribed, no new manner of subscription is prescribed. No change like that is indicated that I can see, but this clause is to deal with deeds that are subscribed by the maker or granter thereof, and without that you cannot proceed to apply the clause at all. Does that mean subscribing in some new way, or does it mean subscribing as at present? That raises the question, on which I don't mean to say there is not room for difference of opinion, whether the word subscribed means simply subscribed—written on the last page of the deed. Now, I can scarcely think that without further explanation the subscribing of a deed by a granter is not the subscribing of it in the way which the law at the time when you speak of it requires it to be done. There is no change of subscription made here. The subscription is the known form of subscription that exists at this time as recognised by law. It is said that subscription only applies to the last page. In its strict etymological meaning subscribing means writing under something else, no doubt, but it does not mean only that. When you speak of the
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The petitioners have presented the present application to the Court in order to allow them a proof of their averments, and thereafter to find and declare that the paper or writing referred to by them as the last will of Miss Norton was subscribed by that lady as maker thereof, and by three other persons as attesting her subscription.
But while such is the prayer of the petition, it is at the same time stated and admitted by the petitioners that the alleged will, although written on two sheets of paper, and consisting of five pages, exclusive of the attestation, which is written partly on the fifth and following page, beats the subscription of the testator on the fifth page only. And it is also stated, and is the fact, that although the subscription bears to be attested by three witnesses subscribing, they are not designed.
A proof having been allowed to the petitioners before answer, it has. been adduced and is now before the court. I do not understand it to be denied that the proof is sufficient, provided that the Act referred to is applicable to such a case as the present; or, in other words, provided the objections and defects to which the alleged will is, as it stands, undoubtedly subject, are capable of being remedied under the Act referred to.
On the one hand, it was contended for the petitioners that it was enough to entitle them to the benefit of the Act that the alleged will was
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By the 39th section of the Act it is provided that “no deed, instrument, or writing, subscribed by the granter or maker thereof and bearing to be attested by two witnesses subscribing, and whether relating to land or not, shall be deemed invalid or denied effect according to its legal effect because of any informality of execution.” The Act also provides that the burden of proving certain particulars shall lie upon the party using or upholding the deed.
Having regard to the Act as so expressed, the primary question is, Whether we have in the alleged will under consideration a deed, instrument, or writing bearing to be subscribed by the granter or maker thereof. It is very clear, and neither was nor could be disputed, that two sheets of paper with writing on the first five pages, but not bearing the subscription or signature of the maker at all, could not be held to be a deed, instrument, or writing subscribed by the granter or maker thereof. But it was argued that the will here in dispute must be held to come under the operation of the Act, because although partly written on two sheets of paper, and not containing the signature or subscription of the maker on the first sheet, it was subscribed by the granter or maker at the end on the second sheet or fifth page. The Act, however, does not so limit, at least expressly, the requisite subscription. It is quite general to the effect that the writ must be subscribed by the maker or granter thereof. But can a deed, instrument, or writing be said to be subscribed unless it is so in the way required by law, independently of the Act and before it was passed? The attestation of the subscription is another and different thing altogether, which will be afterwards spoken to. I am only at present dealing with the subscription of the maker, and I think it plain that it is indispensable that there should be a deed, instrument, or writing which could be said before the Act was passed to be subscribed by the granter or maker thereof. The petitioners, however, maintained that, let the deed, instrument, or writing consist of one or two or any greater number of sheets of paper, it was enough to admit of the application of the statute that it had the subscription of the granter or maker at the end, whether that was on the second or any subsequent sheet; while, on the other hand, it was contended by the respondents that no deed, instrument, or writing consisting of more than one sheet, as the alleged will does, could be held to be subscribed by the granter or maker thereof unless the subscription appeared on every page of it. That the respondents are right in this contention, according to the law as it existed before the passing of the Act in question applicable to the subscription of deeds, cannot, as it appears to me, be successfully disputed. The statute 1696, cap. 15, removes, I think, all serious doubt on the point, for while it validates deeds written bookways, as the will here in question is, it does so only provided that “every page be marked by the number first, second, &c., and signed as the margins were before.” And that the Act 1696 is in this respect imperative was decided by this Court in the case of Thomson v. M'Crummin's Trs., 18 D. 470, and 31 Scot. Jur., p. 425, where it was held, without any dissent, that the omission to mark every page of a deed written by way of book upon more than one sheet was fatal to it; and in coming to that decision all the learned Judges proceeded on the assumption that an omission to sign any of the pages of a deed written upon more than one sheet of paper would be equally fatal to it as an omission to mark every page by its number. Nor does it affect the matter that it has been decided to be unnecessary to subscribe a deed written on a single sheet of paper except on the last page, because, as shewn in the report of the case of Thomson v. M'Crummin's Trs., as disposed of in this Court, 18 D. 473, it was so decided on the ground that on a correct construction of the Act 1696, cap. 15, it did not apply to deeds written on a single sheet, but only to deeds written on more than one sheet, as the present deed is. And just as little do I think it of any importance that the word “signed,” in place of the word “subscribed,” is employed in the Act 1696, seeing that the same word is used alike in reference to the signature of the maker of the deed on the last as well as the other pages. Accordingly, all the writers on the subject since the Act 1696 was passed down to the present time have referred to what that Act requires as the subscription, not the signature, of the maker on every page where there is more than one sheet, and the practice of conveyancers has also, I believe, been to give effect to the Act in that sense.
Without, therefore, going into the various collateral points and speculations which were adverted to at the debate, it appears to me that a “deed, instrument, or writing,” as referred to in the recent statute, must be held to be such and such only as can be said to have been subscribed by the granter or maker thereof according to the law as it stood prior to its passing. And that this must be so is further very strongly enforced by the circumstance that while by the 39th section of the statute it is made incumbent on the party using or upholding a deed subject to informality in its execution to prove that it was subscribed by the granter or maker thereof, nothing is said about the necessity of proving that these pages of a deed written on more than one sheet of paper did truly contain the will of the granter or maker, although not subscribed by him at all. In short, the terms of the 39th section of the Act, whether in the earlier or later part of it, appear to me to require—let the informalities otherwise of the execution of a deed be what they may—that the subscription of it by the granter or maker must be. legally complete and unobjectionable.
It seemed to be argued, however, that the expression—the formalities of execution of a deed—must necessarily cover and include the subscription of it by the maker on every page except the last. I cannot entertain this view. The language of the Act may not in all respects be very distinct or precise, but I have been
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The attachment of the two sheets of paper on which the alleged will is written by seal and string is, I think, of no consequence, for it could not be, and was not said to form by the law of Scotland as it existed at the passing of the Act in question, any part of the execution, either in substance or form, of a deed, instrument, or writing. And neither do I think it of any consequence that the Act uses the same expression—subscribed or subscribing—in reference to witnesses as to the granter or maker, seeing that it does not alter, but leaves exactly as it had been before, the place or places where the granter and the witnesses require to adhibit their subscriptions, viz., on each page by the former, and at the end of the attestation by the latter.
On the grounds, and for the reasons now stated, I am of opinion that the petitioners have failed to establish their case, and therefore that the prayer of the petition ought to be refused.
That is as clearly and distinctly proved as possible; and the question which we are now to consider is, whether the deliberate act of this lady can be set up as a good document under the 39th clause of this Act of Parliament? Under the law as it existed in 1874, when that Act was passed, this is not a probative document, because it is only signed on the last page. If it had consisted of one sheet of paper of four pages, and had been signed on the fourth page, but there had been no signatures on the other pages, it would have been a good will. But because it required two sheets of paper, it was prepared in this way, and it consisting of two sheets of paper, and being in that sense of the word a will made bookways, and not being signed or subscribed—I take the word in either sense—on the first, second, third, or fourth pages, it was a bad will at that date, because it was a will in which there was an informality of execution of a very solemn description. Now the parties maintain that under this Act of Parliament this will is a good and valid will upon that evidence, because it is a document of the description which the Act of Parliament was intended to apply to. Whether it was a politic or impolitic act in the Legislature to pass such a provision as this, I do not inquire. I do not think it unreasonable, knowing that parties may at a distance make a will and require more than one sheet of paper to make it upon; but as a will so framed may have informalities of execution which would render it invalid and force the Courts to refuse effect to it, I do not think it unreasonable that Parliament should pass a measure to enable parties to set up such a will. The question is whether this clause does so. The clause provides that “no deed, instrument, or writing,” &c.—[ reads it]. The clause is framed evidently with reference to informalities of a serious description, because they are described as informalities that might lead to effect being denied to the deed. There is such an informality in this deed, viz., the omission of the signature on the different pages. Now in construing this Act of Parliament we must keep in view that it is a remedial Act, and that it must have a fair and large and generous construction in order to carry out the object which the Legislature appears to have had in view. It was to set up deeds that are the real will of the party who bears to have subscribed them, although they may have been defective in certain formalities. The question then comes to be, as I understand it, whether it applies to any deed which does not happen to be subscribed in terms of the Act 1696? The first question is, What is the meaning of the word subscribe? Now the word subscribe, or subscription, dealing with it in the general sense, whether it be a will or a couple of sheets of note paper sent to a friend as a letter, or said to be subscribed or signed on the last page—if one writes a letter with three sheets of note paper you may put “two” or “three” to connect the two together, or you may use a catch word, but that is a subscribed document. The language of an Act of Parliament of this kind is not meant to be addressed to conveyances alone. It is meant to be addressed to parties who may be at a place where they are not expected to know what the particular formalities may be, when they come to subscribe before witnesses. I read the word subscribed in that common
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The statute of 1874, 37 and 38 Vict. cap. 94, is a statute of a remedial nature. Its object is to “amend the Law relating to Land Rights and Conveyancing, and to facilitate the transfer of Land in Scotland,” and its whole purview is to simplify the rules of conveyancing, and to dispense with the necessity of certain deeds, and with certain formalities which were previously essential in all deeds and in titles to land. In particular, the two sections of the Act which directly bear upon the present case (sections 38 and 39) are intended to give validity and effect to deeds which under the pre-existing state of the law would have been absolutely null and void, and the special enactment of section 39 is that no deed or writing subscribed by the granter and bearing to be attested by two witnesses subscribing shall be deemed invalid or denied effect “because of any informality of execution.” I shall immediately advert to the conditions which this clause imposes, but the general object of the clause is apparent—to remove all objections founded on mere matters of formality, and to give effect to what is really the deed of the granter according to its true legal import. I think this provision is one which ought to be liberally interpreted according to the obvious spirit of the enactment, and I cannot help thinking that it would be a great misfortune if we were compelled to hold that while many of the old formalities formerly essential to deeds are dispensed with, other formalities not more important in character or in themselves are still essential, although in the fair sense of the words they are “mere formalities of execution.”
It appears to me that the fair meaning of the enactment is that a deed which is in the sense of this statute subscribed by the granter and attested by two subscribing witnesses shall be effectual notwithstanding that in all other respects it shall have been irregularly and informally executed. In short, the subscription of the party, whatever that may truly mean, and the subscription of two attesting witnesses, are now the only formalities essential to the validity of a deed.
It appears to me, then, that the real and only question in the present case is, Whether the alleged last will and settlement of the Honourable Miss Norton now before us is, in the sense of the statute of 1874, “subscribed by the granter or maker thereof.” If this question is answered in the affirmative, it is admitted that all other requisites of the statute have been complied with. It is duly and sufficiently subscribed by two attesting witnesses, and the proof which has been adduced makes it absolutely indisputable that whether Miss Norton's signature on the fifth page of the deed is or is not to be held her subscription in law to the whole writing, consisting of two sheets, she certainly intended it as her subscription to the will as a whole, written on both sheets, and she intended thereby to execute as her last will and settlement the whole writing now before us.
The deed consists of two sheets or pieces of paper, and the sheets are folded so that the one
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Now, I am not disposed to attach very much importance to the circumstance that the deed was so stitched and the ends of the thread sealed by Miss Norton. I should be sorry to raise this circumstance or some equivalent therefor into an essential requisite for the validity of such a deed. The circumstance is important, but it is only important as part of the parole proof, that the deed when Miss Norton put her signature on the fifth page consisted not of one sheet but of these two sheets which we now have, and of nothing else, but then I think this fact might have been proved without the sealed thread in any other way, provided only that it was made perfectly clear what really was the deed or writing which the granter executed, and this leaves in my view, as the only question in the case, this question, Is Miss Norton's signature on the fifth page of the deed her subscription of the deed, that is, of the whole deed as it is now before us, in the sense of the Act of 1874?
I am of opinion that it is, and that it is not necessary under the statute of 1874 that each page of a deed shall be signed by the granter, or even that each sheet of the deed shall be so signed; that it is enough if the granter signs at the end of the deed, provided it be made perfectly and indisputably plain by any kind of evidence, parole or written, that he intended his subscription to be the subscription of the whole deed tendered in judgment.
There is no statutory definition of the word subscription, either in the Act of 1874 or in any other statute. The word means, etymologically and originally, a signature or other writing equivalent to a signature at the foot or end of a writing, as opposed to superscription, where the signature or sign manual was put at the beginning or top of a writing, and I do not think the word subscription has in strictness and in Scotland any other meaning than this original one.
Previous to the Act 1696, cap. 15, deeds in Scotland were never written bookways, that is on successive pages like the pages of a book. They were always written on the face of a sheet or sheets of parchment or paper, the sheets being pasted together if there were more than one, and the whole deed was only subscribed at the foot or end thereof. Originally the signature or mark made by the granter was the sign of the cross, then the granter affixed his seal, and ultimately, under the statute 1540, the subscription or writing of his name by the granter was required, but even then only at the foot or end of the deed where the cross or seal had formerly been in use to be affixed. The seal which subscription superseded was never affixed anywhere else than at the end of the deed.
If the deed consisted of more than one sheet, the several sheets were pasted together, and custom introduced the practice of signing across the joinings of the sheets, part of the name being written on the one sheet and part on the other. But this was not subscription, and was never called so. It was called “side-scriving,” and was merely intended to authenticate the various sheets, all of which the granter subscribed by his one subscription at the end, and so subscription was always used in the singular, and indeed is so still, at least in strictness and when accuracy of language is observed. It is the one act by which the granter makes the whole deed his.
The Act 1696 allowed (that is made lawful without prescribing) deeds to be written bookways, but it imposed as a condition of this permission that “every page” be marked by the number and “signed as the margins were before,” but it is remarkable that this signing of each page is not called subscription any more than the old side-scriving was called subscription. The signing of each page is put upon the same footing as the old side-scriving at the joining of each sheet, that is a mere method of attesting and of vouching that the side-scrived sheets or the signed pages are parts of the deed which the granter executes as his deed by his one and single subscription at the foot or end thereof.
It is quite true that the conditions which the Act 1696 imposed as requisites of the permission to execute deeds written bookways have been strictly exacted as absolutely essential to the validity of a deed written bookways. Thus, in the very remarkable case of Galbraith v. The Edinburgh and Glasgow Bank, Feb. 1, 1856, 18 D. 470 (H. L. 24 March 1859, 31 Jurist 425), it was held, both by this Court and by the House of Lords, that a bond written bookways was absolutely null merely because the pages were not marked by their numbers. It is. undoubted that under the law prior to 1874 a deed written bookways must under the Act 1696 have each page or at least each sheet (for this is an open point) signed by the granter, for this is the condition imposed by that statute, but then I am of opinion that such signature was not in strict technical language the “subscription” of the granter, but the mere attestation of the separate sheets, avouching that these separate sheets were parts of the entire deed which the maker subscribed at the end thereof, and therefore the new statute of 1874, which dispenses with all formalities of execution, dispenses with this also as an essential, provided it be clearly proved that the whole deed was really subscribed by the granter affixing his signature as his subscription at the foot or end of the deed.
Indeed, I am of opinion that even according to the old law of Scotland, and in the strictest sense of the word, it was only the signature of the granter at the foot or end of the deed which was properly and really his subscription. All other signatures, however essential, were not subscriptions but something else. Sometimes they were side-scrivings, attesting the separate sheets—sometimes they were marginal signings, attesting a marginal note or an interlineation, or it may be an erasure, but none of these were
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Confining attention, therefore, in the first instance, to the older statutes—that is, to the statutes prior to the Act of 1874, I think they fairly raise the distinction between signature or signing and “subscription” strictly so called. “Subscription” is properly and in strictness the writing of his name by the granter at the foot or end of the deed as an obligatory act, making it his deed and obligation. Signature or signing, on the contrary, is the mere writing of the granter's name anywhere, not as the act binding the granter or making the deed his, but merely for authenticating as part of the deed some separate sheet or some marginal note, or even it may be some separate word, which may be erased or superinduced or otherwise made doubtful or open to question.
But then comes the Act of 1875, and while it is most important to see what is the strict and proper meaning of subscription in the sense of the older statutes, the true question is, What does “subscribed” mean in the Act of 1874,—in what sense does that statute (for really that is the only statute we have directly to do with) use the word “subscribed”—what is a “subscribed” deed in the sense of the statute of 1874?
It may be noticed that the statute of 1874 speaks of the subscription of the maker and the subscription of the instrumentary witnesses in the very same words and in the same sentence. The instrumentary witnesses only sign on the last page—that is their subscription to the deed—and it does not seem very difficult to hold that when the statute speaks of a deed subscribed by maker and by witnesses it means their subscriptions at the only place where they all subscribe—that is, at the foot or end of the deed. But still farther, the word “subscribed” has a popular and common meaning as well as a strict and technical one, and in a remedial statute like this of 1874, which is meant to give validity to deeds otherwise null, I think it not unreasonable to ask what is the popular and common meaning of “subscribed?” Now in popular language a deed, or paper, or petition, or memorial, is subscribed by a person when it is under his hand, when he has put his name at the end of it, though it may consist of many pages or many pieces of paper. The question really is, Has the subscriber made the deed his by subscribing it though he has only signed the last page? Did he so sign with the animus to make the whole deed his deed and evident? If so, he might quite rightly be said to have subscribed the deed although he did not sign and authenticate every page. I think this is the sense in which the statute of 1874 uses the word “subscribed.” I am not compelled to hold that the Act of 1874 uses the word “subscribed” in any technical and narrow sense, even if it could be shown (which I think it cannot) that “subscribed” means technically signed on every page. I prefer holding that the Act of 1874 uses the word “subscribed” in a broader and popular sense, as meaning “under the hand of the granter”—signed at the end only it may be, but provided always that such signature was intended as the signature of the whole deed. I am humbly of opinion that wherever a deed has been signed, although at the end only, before attesting witnesses, and it is offered to be proved that that signature was affixed as and was intended to be the subscription of the whole deed—that is a case to which the provision of the Act of 1874 directly applies.
I feel the weight of the argument, that when a deed consists of many sheets all unmarked and unsigned, and where there is only one signature at the end, there may be room for fraud in inserting one or more sheets which were not part of the deed intended to be executed by the granter, but then this is a matter on which the Court must be satisfied by the most explicit proof. Wherever there is room for suspicion or doubt as to what really was the deed or the sheets which the testator really intended to subscribe, the Court will refuse to sustain the deed. The Court will always, and rightly, exact the clearest proof upon this point, and this seems to be an ample and sufficient guarantee. It is really the only guarantee against fraud in this and in all cases. For those who would fraudulently substitute or prefix to the signed sheet any number of spurious previous sheets which the testator never saw and never intended to form part of his will,—parties who could commit that fraud might just as well forge the testator's signature or any number of signatures, and of course against such frauds as these the only safeguard can be the full and sifting inquiry of a court of law. I need hardly say that in the present case there is not the shadow of a doubt that the deed, exactly as it now lies before us—I mean both the sheets of paper on which it is written—was as a whole executed as and intended by Miss Norton to be her latter will.
On the whole, therefore, I am of opinion that this deed is in the sense of the Act 1874 subscribed by the granter; that sufficient proof in terms of that statute has been adduced, and that the prayer of the petition should be granted.
On the merits of the question I have, after most anxious consideration, arrived at the same result as Lord Neaves and Lord Ormidale. I shall shortly state the grounds of my opinion. But for the provisions of the Conveyancing (Scotland) Act 1874, the will of Miss Norton, which consists
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Even if the document had been signed by Miss Norton on every page, the other defects enumerated are such as could not have been supplied by proof. The will, therefore, would not have been probative; it could not have been allowed to make faith in judgment in its existing condition; and its authenticity could not have been established by any extrinsic proof.
The Act of 1874, however, has by section 38 declared that the omission to design the writer or to specify the number of pages of any writing shall no longer be valid objections to its probative character, and a similar declaration is made as to the omission to name and design the witnesses in the body of the writing, or in the testing clause, provided their designations are appended to or follow their subscriptions; and such designations may be so appended or added at any time before the writ is recorded in any register for presentation or is founded on in any Court, and need not be written by the witnesses themselves. In the present case the will has been produced and founded on in this Court, but the designations of the witnesses have not been appended to their subscriptions and are not set forth in the deed itself or in the testing clause, so that, although the probative character of the will cannot now be objected to in respect of the omission to name and design the writer or to specify the number of pages, it is still open to objection in respect of the omission to design the witnesses, and but for the 39th section of the Act of 1874, the prohibition in the Act 1681, c. 5, must have prevented that omission from being supplied by proof or otherwise.
But by section 39 of the recent Act it is provided—[ reads]. This section of the Act is not very happily expressed, but it must be read in connection with the previous section (section 38) and when so read its true construction appears -to me to be, that where from the omission to design the witnesses, or from failure to comply with any of the statutory solemnities of deeds not specially repealed by section 38 or by any previous statute, a writing subscribed by the granter and bearing to be attested by two witnesses subscribing, is not formally executed, the informality of the execution may be obviated by the party upholding the deed proving that the writing so bearing to be attested was in point of fact subscribed by the granter and by the witnesses. The only informality of execution which the framer of the Act appears to have had specially in view was the failure to design the witnesses, and the clause has been expressed in general terms, apparently in order to meet the case of any similar informality which, though not then present to the mind of the framer, might arise in practice. But unless the writing is subscribed by the maker, i.e., duly subscribed by him in the manner required by law at the date of the statute, I do not think that section 39 can at all avail the party upholding the writing. In short, the failure of the granter duly to subscribe the writing is not in my opinion an “informality of execution” within the sense and meaning of the section.
It is unnecessary to refer at length to the various statutes which make the subscription of the granter essential to the authenticity of an important writ. It is enough to say that by the Act 1540, c. 117, subscription by the maker of a deed, or by notaries for a maker who cannot write, became (except in the case of Crown charters, which are authenticated by seal without subscription), and have ever since continued to be, essential for the purpose of establishing the authenticity of the deed, i.e., that it is truly the deed of the maker. Before 1696 deeds were generally written on the face of one sheet of paper or parchment, or of two or more sheets battered together at the edge. In the case of a single sheet there could be no difficulty, as the subscription of the maker was necessarily made below at the end of the writing, and where two or more sheets battered together were employed, the last sheet was subscribed and the margins were sidescribed at the joinings. This was the custom before the Act 1696, c. 15. The decisions which have been referred to as showing that side-scribing was not before that date universal or necessary, are all cases in which either the material parts of the deed were contained in the sheet which was actually subscribed, or the margins were sidescribed at the joinings by one or more of the granters, side-scription by the other granters being dispensed with either because they were cautioners and the part of the deed affecting them was on the sheet subscribed, or because they were too numerous to sidescribe. In the latter case the whole of the parties in the last sheet of the deed which contained these subscriptions authorised one or more of their number to sidescribe the margins. The identity and authenticity of the whole deed was thus in all such cases ascertained and secured by each sheet of which it consisted proving the signature of one or more of the granters.
In order to obviate the inconvenience of deeds being written in the form of a roll with such battered junctions, writs were allowed to be written bookways on separate sheets stitched together. The first statute on the subject was the Act of 1672, c. 7, which dealt only with Crown charters, which were authenticated not by subscription but by seal. The recipient of the charter was allowed to take it either on one broad sheet of parchment or on several sheets written bookways, but in the latter case it was enacted that the seals should “be appended on a tie or band which is to go thorow all the leaves in the margin.” As such writs were prepared and sealed by responsible public officials, the prescribed mode of appending the seal effectually authenticated each sheet secured by the tie as being part of the charter, and prevented the interpolation of any spurious sheet. The next statute on the subject, 1686, c. 17, allowed sasines to be written bookways, provided the
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It appears to me that such full subscription is necessary to entitle a party upholding a writing to claim the benefit of the 39th section of the Act of 1874. Without the subscription or signature of the granter on every page of the deed, when it consists of more than one sheet, it cannot be said to be a deed subscribed by the granter —he has not authenticated it or adopted it as his deed. A deed in that condition is not in my opinion “informally executed”—it is not executed at all. And in a case like the present, where the material part of the deed, viz., the conveyance or bequest of the heritable estate, is all contained in the first or unsigned sheet, it is a deed which, if written rollways, must have had the margin sidescribed, and which, as it has been written bookways, I must hold has not been in point of fact subscribed by the granter in its most material parts.
Were the argument for the petitioners to be sustained, a wide door would be opened for fraud. Take the case of a deed consisting of a dozen separate sheets—an occurrence by no means rare. Such a deed, not being a Crown charter, could not be authenticated by sealing, a hand passing through all the sheets. And unless each page or each sheet is authenticated by the subscription of the granter, there is no safeguard against the interpolation or substitution of spurious sheets. To allow a parole proof that the unsigned sheets were in their present condition all stitched together and laid before and read over to or by the granter before he subscribed the last page, would, in my opinion, instead of being a safeguard, be a source of danger. Subscription of the deed, and subscription alone, can secure its authentication as being the deed of the maker, and subscription to be effectual must be on every page, that being, as I read the statute 1696, c. 15, a condition precedent to the validity of every deed written bookways.
How, again, are marginal additions, interlineation, and superinductions or erasures to be authenticated? Deeds containing these irregularities are, if the petitioners are right, informally executed, and it would be competent to prove by parole testimony that the writing when the testator signed the last page contained all these irregularities though none of them were mentioned in the testing clause. Nay, more, such proof would be competent even if every page were signed by the granter, leaving the marginal notes unsigned and the interlineations and superinduction unacknowledged.
To allow such proof in any of the cases referred to would, in my opinion, be fatal to the security not only of our land rights but of all transactions requiring the interposition of formal writing for their completion. I cannot bring myself to believe that such was the intention of the Legislature in enacting [section 39 of the Act of 1874, and unless the language of the statute is so clear as to compel me to do so, I cannot give it a construction which must lead to such serious consequences. But as I think the construction contended for by the petitioners is not the sound or natural construction of the 39th section, I am of opinion, on the whole matter, that the will of Miss Norton has not been subscribed by her within the sense and meaning of the 39th section of the statute; that the provisions of that section therefore do not apply to the present case; and that the prayer of the petition should be refused.
On the policy of the statute I have nothing to say, for if we construe its provisions rightly we are bound to assume that the construction we adopt must be beneficial to the public. I foresee none of the dangers in the future which some of your Lordships seem to anticipate. It is at least consolatory to reflect that in the case in hand the operation of the statute will give effect to the unquestionable intention of Miss Norton as to the way in which her property should be disposed of after her death, which, but for the statute, would have been unquestionably and inequitably frustrated.
There can be no question, on the proof, that Miss Norton subscribed this deed, consisting of five pages, and that the subscribing witnesses did truly attest the act of subscription. These things, as matters of fact, are established with absolute certainty. But when we are asked to find that such was the fact, the respondent, Lady Menzies, objects that this petition should be refused, because the demand is not sanctioned by the clause of the statute under which this petition is presented.
There are two objections taken to the petitioner's claim, both founded on the terms of the 39th section of the statute—First that it does not appear on the face of this writing that the subscription of the granter covers the first and second pages of the document, seeing that this can only appear by the signature of the granter on each page, in terms of the Act 1696; and Secondly, that the deed does not appear to be
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The first of these objections is certainly formidable, namely, that which relates to the identity of the writing which appears to be subscribed. It is said that the only part of this document which appears to be subscribed is that sheet on which the granter's signature appears, and that it does not appear that the first two sheets formed any part of the deed, seeing that the requisites of the statute 1696 have not been complied with. This objection is of course technical, but I have found it attended with difficulty. It is not solved by holding, as I am inclined to hold, that the signature of each page, although a solemnity, is a formality of execution in the sense of the clause, for if the view be sound, the clause is limited to informalities in the execution of deeds which appear to be subscribed, which this, it is said, does not. But, looking to the general character and object of the enactments contained in this clause and in the preceding, I think this construction much too narrow, and that mainly on the ground so clearly elucidated by Lord Deas. It seems to me that these two clauses together were intended to cover the whole of the formalities previously required in the execution of writs. Some of them are enumerated and dispensed with by the 38th section, leaving the deeds probative under conditions therein expressed. I think the 39th section is intended to exhaust the rest. Two of these, namely, the subscription of the deed by the granter, and the attestation by the witnesses, still remain as essential solemnities; but all the rest (and I think the provisions of the Act 1696 seem nearly, if not entirely, to comprise all the rest), while not repealed or abolished, admit of being supplied by satisfactory testimony. There is nothing unreasonable in this, or inconsistent with the general spirit of these sections, which seems to be to reduce to the narrowest limits the formalities which are to remain de solennitate, and I agree with Lord Deas in thinking that the provisions of the Act 1696, whether as regards deeds written rollways or those' written book-ways, are, while they are solemnities, yet in the sense of this clause formalities of execution capable of being supplied by proof, and almost the only defects to which the clause can apply.
On the second objection, I have much less difficulty, indeed I am prepared without hesitation to reject it. The contention is that the word “subscription” as used in this section comprehends the signing of the pages and the side-scribing of the sheets provided for by the statute 1696. I think that proposition is quite untenable. If the statement were merely that any deed destitute of these formalities was before this Act not duly executed, and therefore null, it would be entirely accurate. These were solemnities without doubt. But the word “subscribe” as used here—and as used in every statute and decision as applicable to the execution of writs in our law, as far as I know-means subscription as required by the Act 1540—one signature adhibited at the end, close on the termination of the deed, in token of the foregoing writ being the expression of the intention of the granter. A man subscribes a deed when he writes his name at the end of it, just as when he subscribes a page when he writes his name at the end of it. But nothing is the subscription of the granter to the deed under the Act 1540 excepting one signature at the foot or end of the writ. “Subscribed” does not and cannot mean “duly executed,” as it is placed in this very clause in contrast with “due execution.” The Act 1696 deals with matter entirely different, and neither in words nor in the subject of it regulates the subscription of the granter to the completed deed. It regulates only his signature of the different pages, which, when signed, constitute the writ which is to be validated by the granter's subscription. I set little store on the mere expression “signature” as contrasted with that of “subscription,” although the framers of these statutes knew what they were dealing with, and used accurate and precise instead of inaccurate and popular language, as some text writers seem to have done. Accordingly there is not a word about subscription to be found in any of its provisions, whether as regards deeds written rollways or those written bookways, and nothing which can be construed to indicate on what part of the page the signature to the pages of the bookways deed is to be placed. I should be unwilling to invent a statutory solemnity of which neither statute nor decision has said a word.
But really this is wholly immaterial to the question in hand. For even supposing that the Act 1696 had required each page to be subscribed, that is, signed at the' foot or end of it, which it certainly does not provide, these signatures, although subscriptions of the different pages, would be in no sense subscriptions of the deed, and neither singly nor collectively would amount to subscription of any of the things contained in it. Until the deed is subscribed at the end it is wholly without subscription. The signatures on each page only serve another but very important object which the statute so clearly sets out in its terms as to admit of no doubt whatever.—[ reads Act 1696]. Its object was to enable the lieges with safety to adopt the mode of writing deeds bookways, and at the same time to provide for the safeguards in regard to deeds written rollways. These provisions were entirely directed to ensuring that the different sheets on which the deeds were written were those to which the granter's subscription applied. The statute had no other object. Accordingly, side-scribing is made matter of solemnity in deeds written in rolls, and signature of each page “as the margins were before” when the deed is written bookways. Both are just on precisely the same footing; they had the same object, and are subject to the same rules. Now, no one pretends that side-scribing had any effect as subscription under the Act 1540, or could with any propriety be so called. It was a signature in a particular place specified, which not only was not, but from its nature never could be, a subscription; for one-half of the name had to be written at the bottom of one leaf, and the other half at the top of the other.
The only other remark I shall make is, that every case in which the Act 1696 has come in question, as far as I know, its specific object as I have described it has been recognised. Accordingly, it was early held, and ultimately finally settled in the case of Smith v. The Bank of Scotland,
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Something has been said as to how far this deed or settlement has been already founded on in the sense of the 38th section of the statute, so as to make it incompetent now to add the designations of the witnesses to their subscriptions. No such matter if raised under this petition, nor has been argued before us. I wish to express no opinion on the question. I am certainly not to be understood as assenting to the proposition that this settlement has been already founded on in judgment.
The Court pronounced this interlocutor:—
“The Lords of the Second Division having, along with three of the other Judges, heard counsel on the petition and answers and the proof in this case—in conformity with the opinion of the majority of the seven Judges,—Find and declare that the said last will and testament was duly subscribed by the granter thereof, the Honourable Caroline Elizabeth Conyers Norton, and by the witnesses by whom the same bears to be attested, viz., John Holland Payne, wine merchant in Madeira, and Francis Gorbell Tabb, clerk to the Brazilian Telegraph Company at Funchal, Madeira, and Frank Burridge Foy, also clerk there to the said company: Find the petitioners entitled to expenses since the reporting of the proof, and remit to the Auditor to tax the same and to report, and decern.”
Counsel for Petitioners— Dean of Faculty (Watson)— Crawford. Agents— Morton, Neilson, & Smart, W.S.
Counsel for Respondents— Balfour— Hunter. Agents— T. & R. B. Ranken, W.S.
