manner as to facilitate the running, will be evidence of accession. It is held that in Scotland no action will lie, under any circumstances, for a contract concerning prohibited goods.2

No contract entered into contrary to the national war policy, or between a subject of Britain and one of a country at war with Britain, can be made effectual; and during war there is a suspension of the relations of debtor and creditor between the belligerent powers. Neutrals may trade between the powers, provided they do not supply arms. The government may grant a license to an individual permitting him to carry on trade to a limited extent with an alien enemy.3

Although the usury laws are now much modified, and virtually abolished in relation to the classes of transactions most liable to be subject to them, it is necessary to describe them and the transactions to which they apply, as they may still be pleaded against fulfilment of the contracts not protected by the suspension acts.

The taking of interest or any other consideration for forbearing from a debt to an extent exceeding 5 per cent., renders the party, unless in the excepted cases after mentioned, liable to a penalty of three times the debt. Any obligation stipulating for such usurious interest was till lately void, in terms of the act of Queen Anne; but by a statute of William IV. such documents are only to be held as granted for an illegal consideration, and so void only against those who are aware of the consideration. By the same act, if the onerous holder of such an obligation be paid by the granter, the latter may recover the sum against the person who obtained the security on a usurious consideration. Though the obligation do not bear the usurious consideration on its face, if it be a matter agreed on at the time, the obligation will come under the acts, but a fair stipulation will not be affected by a usurious contract following upon it.7

It is usury to take forehand interest at the rate of five per cent. There has always been an exception to this rule in favour of bankers discounting bills, but the exception was confined to such transactions as are of service to trade, and did not apply to long discount. Thus, in a case which in

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1 Waymell v. Reed, 26th May 1794, 5 T. R. 599.-2 B. C. i. 307.-3 Ibid. 303-6. 12 Anne, c. 16.-5 5 & 6 Wm. IV. c. 41, §1.- Ibid. § 2.-7 Gray v. Fowler, 1 Hen. Bl. 462.-8 1621, c. 28.-9 B. C. i. 309.

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volved the discount of a bill for three years the transaction was held vitiated. It is usury to give, in discounting a bill, paper which has a period to run, without making allowance for that period, unless the paper be given for the accommodation of the party, and the difference be but a fair remuneration for the banker's trouble. Bankers are entitled to charge commission, but to what exact proportional amount seems not to have been decided. Where the excess over the charge of five per cent. is the consideration for a risk incurred, the transaction is not usurious. It was so decided where £200 was advanced on the condition of the receiver paying the advancer £100 in half a year if both were alive; £100 in the next half-year if both were then alive; and £100 at the expiration of the next half-year if both were alive.5

By the suspension acts the following transactions are exempt from the usury laws. Charges or discounts on bills or notes at less than twelve months' date, or not having twelve months to run, and contracts for the loan or forbearance of any sum exceeding £10 not heritably secured. The act does not admit of more than 5 per cent. being charged, unless by special agreement.7

CHAPTER II.

SOLEMNITIES OF WRITTEN OBLIGATIONS.

SECT. 1.-General Explanations.

WRITTEN instruments bearing on their face all the formalities which the law lays down as applicable to their purpose are presumed to be valid, and any ground for their being not so must be proved by the person impugning them. In transactions as to the sale of land and shipping (see above, pp. 51, 64) writing is necessary for the constitution of the contract. Where writing is so used, or where, in other cases, it is employed as evidence, it requires certain formalities to make it probative; these are dispensed with in certain deeds arising from commercial transactions, called privileged, and are modified in those which are entirely in the handwriting of the

1 Marsh v. Martindale, 3 Bos. and Pull. 154.- Matthews v. Griffiths, Peake, K. B. 200.- Hammet v. Yea, 1 Bos. and Pull. C. P. 144.-4 B. C. i. 310.- Flight v. Chaplin, 1831, 2 Barn. and Adol. 112.- 2 & 3 Vict. c. 37 § 1; continued by subsequent statutes.- Ibid. § 2.

granter, and are termed holograph. (See p. 139.) Deeds prepared abroad will be effectual in this country, if they have received the proper formalities of the country in which they are prepared, except they concern heritage, in which case they must be in conformity with the established forms in this country.1

As the formalities of deeds are used for the purpose not only of preventing forgery, but of making consent an act of deliberation, imperfections in the statutory solemnities about to be described cannot be supplied by the granter acknowledging his subscription, nor by the evidence of witnesses.2 The deeds are then but parts of incompleted contracts, which can only be enforced if homologation or rei interventus have interposed. (See above, p. 127.)

SECT. 2.—Granter's Name and Subscription.

The parties must not only be named, but so designated that they may be distinguished from others bearing the same names.3 Where the granter can do so, he should subscribe with his ordinary signature, giving (unless in the case of a peer or peeress, or the eldest son of a peer enjoying a title by courtesy) the surname at length, and the christened name at full, or abbreviated. Though the party from blindness or any similar cause should be unable to read the writing he subscribes, his signature, if he is in the habit of writing it, is the proper method of adhibiting his consent.5 There have been several decisions on the validity of subscriptions by initials, and the rule that may be derived from them appears to be, that such subscriptions are valid, but that they require to be supported by the testimony of the witnesses if they be alive and accessible; and if they be not, that it must be shown that it was usual for the party so to subscribe.6 A subscription by mark has no effect in a solemn deed. It is very unsafe to give a party any kind of assistance in signing his name, and though it is sometimes necessary to give pretty minute directions as to the place of signing, the portion of the name requisite, &c., if these go so far as to take from the signature the character of the free and voluntary act of one who knows what he is doing, the deed will be reducible. This was the case where the hand had been led, and

E. iii. 2, 39, 40.-2 Park v. M'Kenzie, 29th November 1764, M. 8449. M'Farlane v. Grieve, 22d May 1790, M. 8459.-3 Tait on E. 56.- 1579, c. 80, B. T. D. 150.-5 Duff v. Fife, 17th July 1823. App. 1 Sh. 498.Tait on E. 67.-7 Bell on the Testing of Deeds, 160.

where the letters had been traced on the paper with a pin; and it had no slight effect on these decisions, that subscriptions by such means could never be capable of recognition as the handwriting of the party.1

A deed not signed at the end of the last page would probably be of no effect. Where it consists of only one sheet, a signature at the end will be of itself sufficient, but a document consisting of more than one sheet must have a signature to each, otherwise the sheets unsigned are not probative, a circumstance which will be in the general case fatal to the deed. The common practice is to sign each page, and where any one in a sheet of which some other page is subscribed is omitted, it must appear to be from accident, not the granter's unwillingness to sign. Marginal notes must be signed by writing the christian name or the initials of it above, and the surname or the initials of it below.3 deed subscribed by one who did not know its contents may be reduced, and it is therefore generally necessary that a deed before subscription should be read by the party, or in his presence. A deed which had not been read by or to the party was reduced, though prepared in terms of a model prescribed by him. It is presumed that the person who signs a deed has had such means of becoming acquainted with its contents, and the reverse requires to be proved by the party impugning it.5

A

Notaries.-Where the party is unable to subscribe, the deed may be executed by the subscription of two notaries authorized by him, in presence of four witnesses. The practice is for the party to declare that he cannot write, and then touch the pen of each notary in token of authority to subscribe for him, the witnesses seeing the authority given, and the transaction being recorded in the notaries' doquet. The rule as to the party's being acquainted with the deed applies as in the case of his giving his own subscription.8 Deeds thus formally signed by notaries have the same legal presumption in their favour which belongs to other solemn writs. Deeds affecting moveable property under £100 scots (£8, 6s. 8d.) may be subscribed by one notary in presence of two witnesses. When it is for money, though the sum should exceed £100 scots, if the creditor restrict his claim to that amount, such a deed is valid.10 (As to Wills, see above, p. 107.)

1 B. T. D. 160. Tait on E. 70.-2 1696, c. 15. Tait on E. 71-74.- Tait on E. 74. B. T D. 139.-5 Duff, &c. ut supra.- 6 1579, c. 80. E. iii. 2, 9.—7 B. T. D. 172, et seq.-8 Ibid. 76.-9 Ibid.—10 E. iii. 2, 10.

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SECT. 3.-Witnesses.

Every deed subscribed by the party must be signed by two testamentary witnesses on the last page, each putting the word "witness" after his name. It is provided by statute "that no witness shall subscribe as witness to any party's subscription, unless he then knew that party, and saw him subscribe, or saw or heard him give warrand to a nottar or notars to subscribe for him, and in evidence thereof touch the nottar's pen, or that the party did, at the time of the witness's subscribing, acknowledge his subscription, otherwise the said witness shall be repute and punished as accessory to forgery." It does not necessarily follow from the act, that where any of these solemnities is omitted the deed is null. Where, however, the witnesses have not seen the party subscribe, or heard him acknowledge his subscription, or (in the case of notaries) seen the authority given, they cannot be said to have attested the deed, and it may be reduced. It is difficult to define how far the witness ought to "know the party." Cases have occurred in which ignorance was fatal to the deed.3 It is quite usual, however, for individuals to be called to attest the deeds of persons they have never seen before, and nothing farther would certainly be required than such information as convinces one in the ordinary business of life that a man is the person he professes to be.

No other witnesses can support a deed but those who sign it. It was long questioned whether such witnesses could be examined on questions affecting the formality of their proceedings, as their verbal statements might tend to contradict what they have solemnly attested by their signature. was at last decided that they might be adduced, but the import of the cases has generally been, 1st, That where the circumstances are such that the necessary solemnities must be presumed to have taken place, the witness will not be allowed to say that they had not; thus he will not be allowed to say he did not see the party subscribe, if he was present during the time of subscription; and, 2d, That the mere want of recollection on the part of the witnesses will not outweigh their written testimony that the requisite formalities were complied with.4

11681, c. 5.- B. T. D. 281. Tait on E. 88.-3 B. T. D. 277, et seq.* Ibid. 233-273. Cleland v. Cleland, 6th June 1837.