CANCELING OF DEEDS AND WILLS. The word cancel comes from the Lat. eancelli (lattice-work), and a deed was formerly said to be canceled when lines were dra•u over it in the form of lattice-work. The word cancel is now used to signify any sort of obliteration.
The court of chancery in England gives relief against the effect of improper cancella tion; on the other hand, it may order a deed which has been improperly obtained to be delivered up in order to be canceled. The effect of the cancellation is to make the deed void. If a deed is given up to be canceled, and the cancellation does not take place, it remains in force at law. But if an obligee deliver up an obligation to be canceled, and the obligor do not afterwards cancel it, and the obligee happen to get it again into his hands, and sue the obligor on it, the latter cannot plead its voidance, for the deed still remains in force at law—although here, too, equity would relieve, and decree according to the original cancellation. Where a deed is canceled by consent of the parties to it, it is thereby destroyed as to their interest under it, but third parties may still produce it in evidence. As to a will, its cancellation may have the effect of revoking it, if done with such intention.
In Scotland, the system of registration of deeds and other writings prevents the occurrence of many of the questions that arise in England on this head, but the inten tion and effect of the cancellation or destruction of documents would in most cases be a question of evidence; and where it is necessary to know the contents of the destroyed paper, its effect may he judicially declared by a form of suit called an action for proving the tenor, as indeed may be done in an English court of by a bill to recover the contents of a lost document. In the Scotch law, again, a decd or other writing may be
judicially canceled or set aside by an action of reduction, and the courts in England sub stantially exercise a similar jurisdiction.
It would appear that where a testator has prescribed certain forms for the authenti cation of his will, and such forms have either not been observed by him, or if observed, have, in sotne essential particular, been negatived by obliteration, an intention to revoke will be presumed: thus, where a Scotchman, who had loug resided in India, executed a will, concluding, "In testimony of this being my last will and testament, I hereto set my hand and sea];" and the document was found in his repositories with the part to which the seal had evidently been affixed cut (not torn) off, the house. of lords held the deed to be canceled, because the testator had himself, besides the usual solemnities, prescribed a seal as necessary to the authentication of his will. A will, however muti lated or canceled by a testator during his insanity. would be good; and of course there is no effectual cancellation when done by a third party without sufficient authority. But all such considerations are questions of evidence. See DEED, WILL.