M'Dougall and Other v. M'Dougall

Subject_1 St. 1540, c. 117; 1579, c. 80; 1593, c. 179; 1681, c. 5; 1874, sec. 68 Subject_2 Entail Subject_3 Testing Clause Subject_4 Erasure. Facts: Held that it is not necessary, under pain of nullity, to insert in the testing clause of a probative deed the full names as well as the designations of the instrumentary witnesses.

Note .—The question raised in the present action must be decided without reference to the provisions of section 39 of the recent Conveyancing (Scotland) Act, 1874, the action having been raised in June 1874, while the statute, which did not come into operation till 1st October, contains (section 68) a saving clause as to all depending actions.

Assuming that the word and letters above mentioned are to be held pro non scripto , it follows that the testing clause contains only the name and designation of one witness. It must be assumed that the superinduced word and letters were added after the deed was completed; and in the absence of the word and letters which have been superinduced the name of the alleged witness has not been mentioned in the deed.

The effect of this provision was to render it necessary, under pain of nullity of the deed, that not only should the witnesses subscribe, but that they should be designed in the body of the deed or testing clause. In the present case only one witness is named and designed, omitting the erased words and letters. The designation of another person is also given, but no name, and at least surname. It appears to me, in these circumstances, that the deed does not fulfil the requirements of the statute, and that it is therefore a nullity.

Assuming that the statute applies, and that the deed must be held to have been null after it was completed, in consequence of the want of mention in the deed of the name and designation of one of the witnesses, it was not maintained by the defenders that anything that has since occurred could make the deed valid now.