Scottish Court of Session Decisions

In 1822, the late John Reid, of Glasgow, executed a trust-disposition and settlement, in favour of Isaac Baxter and Others, the defenders. In 1825, and 1830, he executed two several codicils, altering some of the provisions of the previous deed. The trust-disposition was not subscribed by Reid himself, but bore to be executed by notaries, in the following manner:—“At the special request of the within-designed John Reid, who, from a defect of sight, or dimness of vision, cannot see to read write clearly, as he asserts, and being desirous to execute the foregoing deed in a valid form, so as to exclude challenges on the head of blindness or defect of sight, therefore we, John Drysdale and James M'Hardy, notaries-public, and co-notaries in the premises, subscribe the same for him, he having, in token of his authority, touched our pens respectively, and authorized us to do so; the said deed having been previously read over and explained to the said John Reid, in presence of us and the four subscribing witnesses.”

The codicil of 1825 bore to be executed in the same way, and the codicil of 1830 as follows:—“At the special request of the within-designed John Reid, who, from a defect of sight, or dimness of vision, cannot see to read write, as he asserts; therefore we, Donald Macintyre and James M'Hardy, notaries-public,” &c., as above.

Upon the death of Mr Reid, the pursuer, his eldest son and heir-at-law, raised an action of reduction of the trust-settlement, and subsequent codicils, on the ground, inter alia, that Reid was, at the time of executing the writings in question, “perfectly able to subscribe the same with his own hand, and did, in point of fact, both prior and subsequent to the said dates, and each of them, so subscribe a variety of writings of different descriptions, and was in the practice of so doing; and, accordingly, the notarial docquets above quoted do not bear that the said John Reid was unable to subscribe with his own hand, but merely that he was unable to read writing, or to read the same clearly, from a certain dimness of sight; and, therefore, the said deeds or writings ought, in order to give them legal validity, to have been subscribed by the hand of the said John Reid himself; and the said deeds or writings, not having been so subscribed, are null and void, and can make no faith,” both at common law, and under the statutes 1540, c. 117, and 1579, c. 80.

The trustees pleaded in defence—

That the deeds were duly executed, and admitting, in point of fact, that Reid was occasionally in the practice of subscribing documents of minor importance, when guided by others to the part of the paper where his name was to be written, they averred that “at each and all of the dates above condescended on, he was in such a state of blindness as to be totally unable to read either print or writing. When he executed the original trust-deed he was little more than able to distinguish between light and darkness. His sight became afterwards gradually more and more impaired, and, at the date of the two codicils, he was incapable of distinguishing between one object and another.”

This averment was denied by the pursuer, who further maintained, in point of law, that the notarial docquets must be held as probatio probata of the state of the deceased's powers of vision; and that, under the statutes, even supposing parties absolutely blind, “gif they can subscribe,” they are bound to do so, and not have recourse to notaries. ¹

A motion having been made by the defenders for a remit to the Jury Roll, the pursuer objected to a trial on the ground, that it was more consistent

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¹ Lord Fife's case (1 Shaw's Appeals, 498).