execution. Attestation of signature. In the case of Wright v. Wakeford, (1) where a power was Proof of created, to be executed by trustees, with the consent of the cestui que trusts testified by writing under their hands and seals, attested by two or more credible witnesees, but the attestation expressed only, that the deed had been sealed and delivered by the cestui que trusts and the other parties in presence of the subscribing witnesses, the majority of the Court of Common Pleas determined, that the power had not been duly executed; for the question is to be determined by the true construction of the terms of the attestation, and by that alone; and the word "sealed," according to its true acceptation and ordinary sense, cannot be considered as implying that the parties who put their seals to the instrument, put also their hands to it, or signed it in the presence of the witnesses. It was further determined in this case (2), that a subsequent attestation, indorsed upon the instrument after the death of one of the cestui que trusts, and expressing that the parties had also signed in the presence of the subscibing witnesses, would not cure the original defect; on the ground, that the attestation, to constitute a due and effectual execution of the power, ought to make a part of the same transaction with the signing and sealing, such being the usual and common way of attesting the execution of all instruments requiring attestation. In the late case also of Doc, on the demise of Mansfield v. Peach, (3)* where the power was directed to be executed " (1) 4 Taunt. 214; Mansfield C. J. dissenting. 7 Taunt. 361 17 Ves. 454, S. C. (2) See also 17 Ves. 457. by (3) 2 Maule & Selw. 576. Wright, v. Barlow, 3 Maule & Selw. 512 S. P. In consequence of the decision in the cases of Wright v. Wakeford, and Mansfield v. Peach (which might affect the titles of purchasers, in case the fact of signature were not expressed in the memorandum of attestation,) an act of parliament was passed, (a) which enacts," that every deed or other instrument, already made with the intention to exercise any power, authority, trust, or to signily the consent or direction of any person, whose consent or direction may be necessary to be so signified, shall, if duly signed and executed, and in other respects duly attested, be (from the date thereof, and so as to establish derivative titles,) of the same validity and effect, and proveable in the like manner, as if a memorandum of attestation of signature, or of being under hand, had been subscribed by the witness; and the attestation, expressing the fact of sealing and delivering, without expressing the fact of signing or any other form of attestation, shall not exclude the proof or the presumption of signature." This statute, it is to be observed, is only retrospective. (a) St. 54 G. 3, c. 168. Proof of execution. any deed or writing under the hands and seals of the parties, to be by them duly executed in the presence of, and attested by two or more witnesses," and the attestation was only of the sealing and delivery, the Court of King's Bench were of opinion, that, in order to make a due execution of the power in this case, the instrument ought to have been made with all the forms required by the power, and that there ought also to have been an attestation of its execution with all those forms; and with respect to the second point, which arose here as well as in the case of Wright v. Wakeford, the Court said, it was not necessary to determine, at what precise time the attestation should be made, but that the attestation, subsequent to the death of one of the parties, could not give to their act an operation, which it never had during the lives of the parties. In another case, where lands were limited to such uses, as the donee should direct by deed or writing, under his hand and seal attested by two or more credible witnesses, the Court of Common Pleas determined, that the power was not effectually executed by a will, signed and sealed, but attested by the subscribing witnesses as being signed in their presence, without noticing the sealing; nor could the defect be cured, by calling on one of the witnesses to prove, that the will was actually sealed in their presence, as well as signed (1). In the case of Moodie v. Reid, (2) the same court determined, that a power, to be executed by a writing signed and published in the presence of attesting witnesses, is not properly executed by an attestation, which notices the signing only, and not the publication. The question in that case arose on a marriagesettlement, which contained a power to limit the uses of money in the funds, by any writing or appointment in the nature of a will, to be signed and published in the presence of, and altested by two or more credible witnesses; the testatrix at the close of her will signed her name, and two names were subscribed under the word "witness;" the subscribing witnesses proved that the testatrix signed in their presence, and that they understood, from what the testatrix said at the time of signing, (1) Doe dem Hotchkiss v. Pearce, (2) 7 Taunt. 355. execution. that the paper was her last will. The Court of Common Pleas Proof of held, on a case directed for their opinion by the Vice Chancellor, that the power had not been properly executed. Lord Ch. Justice Gibbs said, "A will, as such, requires no publication; but here the power is to be exercised by a will signed and published; there must be some publication here; the will must be signed, published, and attested; there must therefore be some attestation of signing and publication. After adverting to the difficulty of defining the term "publication," as applied to a will, the Lord Chief Justice added, "I can only suppose it to be that, by which a person designates, that he means to give effect to a paper as his will." Where, however, the deed, by which the power was created, directed, not that the instrument should be attested by witnesses, but that the power should be executed by any writing to be signed and sealed in the presence of two or more witnesses, and the deed, in pursuance of the power was expressed to be executed in the presence of the witnesses, but the attestation applied only to the sealing and delivery, the Chancellor was of opinion, that in such a case it might be properly left to the jury to presume, that the deed was signed, as it professed to be, in the presence of the witnesses, who attested the sealing and delivery. (1) -one seal. The rule which has been before mentioned, respecting the Several parties sealing by several parties on one piece of wax, and with one seal, is applicable to all deeds at common law; and such sealing will bind the parties by whose authority the deed is executed. But this rule does not extend to warrants or orders executed under a power. In a case lately determined by the Court of King's Bench, (2) where the question was, whether a certificate, signed by two churchwardens and one overseer, but bearing only two seals, was a legal and valid certificate under the stat. 8 & 9 Certificate of W. 3. c. 30, (which requires certificates to be under the hands and seals of the church wardens and overseers, or the major part of them, or under the hands and seals of the overseers, where there are no church-wardens,) the Court determined, that the certificate had not been properly executed. The facts of the (1) M'Queen v. Farquhar, 11 Ves. 17 Ves. 458. 467. (2) R. v. Austrey, Easter Term, 1817, Maule & Selw. MS. settlement. Proof of execution. case were shortly these. The certificate was duly attested, and allowed by magistrates, and purported to be the certificate of A. B. and C. D. churchwardens, and of E. F. overseer; one seal was opposite to the two first names, and the other seal opposite to the last; no trace of any other seal appeared on the instrument, and the certificate was above thirty years old. Lord Ellenborough C. J., in delivering the judgment of the Court, said, "In considering how far the cases of deeds are applicable to the present, it is to be recollected, that in those cases the parties alone, under whose authority the deeds were executed, are bound by them. But the present is the case of the execution of a power, which binds and operates upon other persons at their peril, and subjects them to indictments as for crimes, in case of their disobedience to the power, if it be duly executed. In the execution of powers, all the circumstances required by the creators of the power, however unessential and otherwise unimportant, must be observed, and can only be satisfied by a strictly literal and precise performance. (1) It is also a general principle of law, wherever a power is given to particular persons, to do a written act in a particular manner or under certain particular circumstances, whether it be to parish officers or magistrates, (as, to grant certificates, under which, if duly executed, other persons, especially public officers, are bound to actor to grant warrants, or make order,) that their authority must appear upon the instrument itself. It must thereby appear, that they are the persons authorized, and that the certificate, warrant, or order, was made in the manner and under the circumstances required. Otherwise the certificate, warrant, or order, is not obligatory, but void. (q) The statute is to be construed, in a case like this, according to common parlance and understanding, and so as to be a security to persons, who are bound to obey the powers given by it at their peril; and it is not to be construed according to what may be brought within its words by nice legal reasoning, applicable merely to deeds. In the case of Thaire v. Thaire, (2) where there was a submission to arbitration, so that the award be delivered under their hands and seals,' it was made a question, whether an award, sealed but not signed, was a good award; the point reserved being, (1) See Hawkins v. Kemp, 3 East, 440. (2) Palmer, 109, 112. execution. whether the sealing, which was virtually a signing, was sufficient, Proof of or whether the words of the submission should be intended, in common parlance, an actual writing of their hands. The Judges of the Court of Common Pleas, were at first divided in opinion on that point. It was finally decided, however, by the whole Court, that a virtual signing would not do, but that there ought to be an actual signing under their hands. So in the present case," said Lord Ellenborough, "where an act is to be under the hands and seals of the three, a mere virtual sealing by any of the three appears to us not sufficient; but it ought to be under the actual distinct seal of each, that is to say, under a distinct and several sealed impression adopted by each of the parties." (r) If a deed or other written instrument is attested, but none of Proof of handwriting of subthe witnesses are capable of being examined, the course then scribing witis to prove an attesting witness's hand-writing; and this will be ness. a sufficient proof of the execution; as, where the attesting witness is dead-or blind (1) (s)—or incompetent to give evidence, either from insanity, (2) or from infamy of character, (3) or from interest acquired after the execution of the deed, (4) (t)—or where the subscribing witness is absent in a foreign country, (5) or out of the jurisdiction of the superior English courts, so as not to be amenable to their process, (6)—or where he cannot be found after strict and diligent enquiry. (7)* (u) Illness is not (1) Wood v. Drury, 1 Ld. Raym. 734, by Holt C. J. (2) Vin. Abr. tit. Evidence, (T. b. 48.) pl. 12. Burnett v. Taylor, 9 Ves. 381. Currie v. Child, 3 Campb. 283. (3) Jones v. Mason, 2 Stra. 833. Com. Dig. tit. Testmoigne, B. 3. (4) Goss v. Tracy, 1 P. Wms. 287. 289. Godfrey v. Norris, 1 Stra. 34. Swire v. Bell, 5 T. R. 371. Buckley v. Smith, 2 Esp. N. P. 697. See Honeywood v. Peacock, infra., p. 476. (5) Coghlan v. Williamson, 1 Doug. Wallis v. Delancey, 7 T. R. 266. 93. (c,) Adam v. Kerr, 1 Bos. & Pull. 361. (6) Prince v. Blackburn, 2 East, 250. (7) Anon. case, 12 Mod. 607., by *In the case of Cunliffe v. Sefton (2 East, 183.,) it was proved, that diligent enquiry had been made after one of the attesting witnesses to a bond at the residence of the obligor and abligee, without being able to obtain any intelligence of such a person; this was considered a sufficient ground for letting in proof of the hand-writing of the other attesting witness, who had since become interested as administratrix to the bligee, and was a plaintiff on the (r) See Note 892, p. 1293. (s) See Note 893, p. 1293. (t) See Note 894, p. 1293. (u) See Note 895, p. 1293.. VOL. I. 60 |