self: if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void; at least for so much as is mis-recited unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party Y. SIXTHLY, it is requisite that the party, whose deed [305] it is, should seal, and now in most cases I apprehend should sign it also. The use of seals, as a mark of authenticity to letters and other instruments in writing, is extremely ancient. We read of it among the Jews and Persians in the earliest and most sacred records of history. And in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase. In the civil law also b, seals were the evidence of truth; and were required, on the part of the witnesses at least, at the attestation of every testament. But in the times of our Saxon ancestors, they were not much in use in England. For though sir Edward Coke relies on an instance of king Edwin's making use of a seal about an hundred years before the conquest, yet it does not follow that this was the usage among the whole nation: and perhaps the charter he mentions may be of doubtful authority, from this very circumstance, of being sealed; since we are assured by all our ancient historians, that sealing was not then in common use. The method of the Saxons was for such as could write to subscribe their names, and, whether they could write or not, to affix the sign of the cross: which custom our illiterate vulgar do, for the most part, to this day keep up; by signing a cross for their mark, when unable to write their names. And indeed this inability to write, and therefore making a cross in its stead, is honestly avowed by Caedwalla, a Saxon king, at the end of one of his charters d. In like manner, and for the same unsurmountable reason, the Normans, a brave but illiterate nation, at their first [306] settlement in France, used the practice of sealing only, without writing their names: which custom continued, when learning made its way among them, though the reason for doing it had ceased; and hence the charter of Edward the confessor, to Westminster-abbey, himself being brought up in Normandy, was witnessed only by his seal, and is generally. thought to be the oldest sealed charter of any authenticity in Englande. At the conquest, the Norman lords brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English method of writing their names, and signing with the sign of the cross f. And in the reign of Edward I. every freeman, and even such of the more substantial villeins as were fit to be put upon juries, had their distinct particular seals. The impressions of these seals were sometimes a knight on horseback, sometimes other devices: but coats of arms were not introduced into seals, nor indeed into any other use, till about the reign of Richard the first, who brought them from the croisade in the holy land; where they were first invented and painted on the shields of the knights, to distinguish the variety of persons of every christian nation who resorted thither, and who could not, when clad in complete steel, be otherwise known or ascertained. THIS neglect of signing, and resting only upon the authenticity of seals, remained very long among us; for it was held in all our books that sealing alone was sufficient to authenticate d" Propria manu pro ignorantia litera"rum signum sanctae crucis expressi et sub"scripsi." Seld. Jan. Angl. I. 1. sec. 42. And this (according to Procopius) the emperor Justin in the east, and Theodoric king of the Goths in Italy, had before authorized by their example, on account of their inability to write. e Lamb. Archeion. 51, "Normanni chirographorum confectio "nem, cum crucibus aureis; aliisque signa. "culis sacris, in Anglia firmari solitam, in "caeram impressain mutant modumque scri"bendi Anglicum rejiciunt." Ingulph. g Stat. Exon. 14 Edw. I. a deed and so the common form of attesting deeds, “sealed " and delivered," continues to this day; notwithstanding the statute 29 Car. II. c. 3. before mentioned revives the Saxon custom, and expressly directs the signing, in all grants of lands, and many other species of deeds: in which therefore signing seems to be now as necessary as sealing, though it hath been sometimes held that the one includes the other. A SEVENTH requisite to a good deed is that it be delivered, by the party himself or his certain attorney, which therefore is also expressed in the attestation; "sealed [307] "and delivered." A deed takes effect only from this, tradition or delivery; for if the date be false or impossible, the delivery ascertains the time of it. And if another person seals the deed, yet if the party delivers it himself, he thereby adopts the sealing, and by a parity of reason the signing also, and makes them both his own. A delivery may be either absolute, that is, to the party or grantee himself; or to a third person, to hold till some conditions be performed on the part of the grantee: in which last case it is not delivered as a deed, but as an escrow; that is, as a scrowl or writing, which is not to take effect as a deed till the conditions be performed; and then it is a deed to all intents and purposes). THE last requisite to the validity of a deed is the attestation, or execution of it in the presence of witnesses: though this is necessary, rather for the preserving the evidence, than for constituting the essence of the deed. Our modern deeds are in reality nothing more than an improvement or amplification of the brevia testata mentioned by the feodal writers k; which were written memorandums, introduced to perpetuate the tenor of the conveyance and investiture, when grants by parol only became the foundation of frequent dispute and uncertainty. To this end they registered in the deed the persons who attended as witnesses, which was formerly done without their signing their names, (that not being always in their power,) but they only heard the deed read; and then the clerk h 3 Lev. 1 Stra. 764. 4 Perk. sec. 130. j Co. Litt. 36. or scribe added their names, in a sort of memorandum; thus: "hijs testibus Johanne Moore, Jacobo Smith, et aliis ad hanc "rem convocatis1." This, like all other solemn transactions, was originally done only coram paribus m, and frequently when assembled in the court baron, hundred, or county court; which was then expressed in the attestation, teste comitatu, hundredo, &c. Afterwards the attestation of other witnesses was allowed, the trial in case of a dispute being still [308] reserved to the pares; with whom the witnesses (if more than one) were associated and joined in the verdict; till that also was abrogated by the statute of York, 12 Edw. II. st. 1. c. 2. And in this manner, with some such clause of hijs testibus, are all old deeds and charters, parti. cularly magna carta, witnessed. And in the time of sir Edward Coke, creations of nobility were still witnessed in the same manner P. But in the king's common charters, writs, or letters patent, the style is now altered: for at present the king is his own witness, and attests his letters patent thus: "teste meipso, witness ourself at Westminster, &c." a form which was introduced by Richard the first 9, but not com monly used till about the beginning of the fifteen century; nor the clause of hijs testibus entirely discontinued till the reign of Henry the eighth: which was also the æra of cliscontinuing it in the deeds of subjects, learning being then revived, and the faculty of writing more general; and therefore ever since that time the witnesses have usually subscribed their attestations, either at the bottom, or on the back of the deeds (4). 1 Co. Litt. 7. m Feud. 1. 2. t. 32. n Spelm. Gloss. 228. Madox. Formul, n° 221. 322. 660. o Co. Litt. 6. p 2 Inst, 77. q Madox. Formul. no 515. r Ibid. Dissert. fol. 32. (4) From the few laconic deeds of antiquity, being mostly feoffments, which I have had an opportunity of seeing, I have observed that in the reign of Edw. 4. and before that time, they were neither III. WE are next to consider, how a deed may be avoided, or rendered of no effect. And from what has been before laid down it will follow, that if a deed wants any of the essential requisites before mentioned; either, 1. Proper parties, and a proper subject-matter: 2. A good and sufficient consideration 3. Writing, on paper or parchment, duly stamped: 4. Sufficient and legal words, properly disposed: 5. Reading, if desired, before the execution: 6. Sealing; and, by the statute, in most cases signing also: or, 7. Delivery; it is a void deed ab initio. It may also be avoided by matter ex post facto: as, 1. By rasure, interlining, or other alteration in any material part; unless a memorandum be made thereof at the time of the execution and attestation (5). 2. By breaking off, or defacing the seal". 3. By delivering it up to be cancelled; that is, to have lines drawn [309] over it in the form of lattice-work or cancelli; though the phrase is now used figuratively for any manner of obliteration or defacing it. 4. By the disagreement of such, whose concurrence is necessary, in order for the deed to stand: as the husband, where a feme-covert is concerned; an infant, or person under duress, when those disabilities are removed; and the like. 5. By the judgment or decree of a court of judicature. This was anciently the province of the court of t 11 Rep. 27. u 5 Rep. 23. subscribed by the parties nor witnesses. But they conclude, In cujus rei testimonium huic charta (vel scripto) nostra sigilla apposuimus. Hiis testibus, &c. But after that time the parties began to write their names over or near the seal. And in the reign of Hen. 8. in general they are signed by the parties, but not by the witnesses; but in the next reign the practice commenced, that the witnesses, who the parties intended should afterwards prove the execution of the instrument, should also subscribe their names. (5) Such an alteration will also render void a bill of exchange or promissory note. 4 T. R. 320. 1 Anst 225 |