Scottish Court of Session Decisions

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Cite as: [1871] ScotLR 9_89, [1871] SLR 9_89

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SCOTTISH_SLR_Court_of_Session

Page: 89↓

Court of Session Inner House First Division.

Friday, November 17. 1871.

9 SLR 89

Caldwell, Petitioner.

Subject_1Public Records
Subject_2Statute 31 and 32 Vict. c. 34
Subject_3Writ
Subject_4Error — Testing Clause.
Facts:

A testamentary deed was, after the death of the testator, given in to be recorded in the Books of Council and Session. It was entered in the minute book, but not “booked,” and an extract was given out, when an omission in the testing clause was discovered. On a petition, presented by the widow of the testator and the agent who prepared the deed, the Court authorised the Keeper of the register to allow access to the deed, for the purpose of the writer of the deed adding, at the sight of the Keeper, certain specified words to the testing clause.

Headnote:

George Caldwell executed a trust-settlement on 19th March 1870, and died on 15th May 1871. The deed was given in to be recorded in the Books of Council and Session on the 18th September 1871. It was entered in the minute book, and an extract given out. It was then discovered that there was an error in the testing clause, the writer of the deed being designed as “David Smith Semple, clerk to David, writer in Paisley” (the surname of the agent being omitted), and the witnesses “the said David Semple and David Smith Semple.” On November 3d, before the deed had been “booked” in the principal register, the present petition was presented to the Court for authority to get up the deed, or alternatively to obtain access to it for the purpose of supplying the omission in the testing clause.

The petitioners were the widow and sole executrix of George Caldwell, who was also the principal beneficiary under the trust-settlement, and David Semple, writer in Paisley, who prepared the deed.

The petition narrated the facts above mentioned, and recited the Act 31 and 32 Vict. c. 34, sec. 1—“From and after the passing of this Act, no writ that shall have been given in to be registered in the Books of Council and Session shall be taken out by the party or anyone employed by him, nor shall any such writ be given up by the keepers of the register for any purpose at any time either before or after the same has been booked, excepting only when authority of the Lords of Council and Session has been expressly given thereto, and then only under such conditions and limitations as may be expressed in such authority, anything in the said recited Act (1865, c. 38), or in any other Act, or any law or custom to the contrary, notwithstanding.”

The prayer was as follows—“May it therefore please your Lordships to grant warrant on the Principal Keeper of the Register of Deeds, Probative Writs, and Protests, or his substitutes, to deliver to the petitioners the said disposition and settlement of the said George Caldwell, dated 19th March 1870, or to allow them access thereto, for the purpose of supplying the foresaid omission in the testing clause thereof, by the addition of the words ‘Declaring that the witnesses hereto are David Semple, writer in Paisley, and David Smith Semple, his clerk, and writer hereof;’ or in such other manner as your Lordships may direct; and that under such conditions and limitations as to your Lordships shall seem proper, in terms of the before recited Act; or to do further or otherwise in the premises as to your Lordships shall seem proper.”

The Court ordered intimation to the Lord Clerk Register.

Solicitor-General ( Clark), for the petitioner, argued that, as the deed in question had not been booked, and as the application had been made before the expiry of six months from the in-giving, there was no doubt that the ingiver might have required it back unconditionally before the passing of the late Act 31 and 32 Vict. c. 34; see the case of M'Leod, July 20, 1841, 3 D. 1288; and 5 Bell's App. 210. In consequence of inconvenience which has arisen in the management of the Register House, the ingiver of a deed has not now the absolute right, as before that Act, of taking up a deed again within the six months. He is only entitled to do so upon obtaining the authority of the Court. What the petitioners want here is to be allowed to make a specific correction upon the deed, leaving it for after consideration, if questioned, whether the correction is effectual. This is sufficient reason to entitle the Court to grant the authority craved. Reference was made to Brown, March 11, 1809, F.C.; Bank of Scotland v. Telfer's Crs., Feb. 17, 1790, M. 16,909; Hill v. Arthur, Dec. 6, 1870, 9 Macph. 223.

Balfour, for the Lord Clerk-Register, did not oppose the application, but contended that if the authority were given, the course it should take was to grant warrant to cancel the original registration, and discharge the Keeper of the Register of the deed, to recover all extracts, and then give up the deed.

At advising—

Judgment:

Lord President—The deed of settlement to which this petition applies was executed by George Caldwell on 19th March 1870. The testator died on 15th May 1871, and the deed was given in to be recorded in the Books of Council and Session on the 18th September 1871. An extract was obtained from the register. The principal deed has not been booked, but only entered in the minute book. It is in that state of facts that an application is made for warrant on the Keeper of the Register to deliver the deeds to the petitioners, or alternatively to allow them access thereto to enable them to make a correction in the testing clause. This is an important question under the Act 31 and 32 Vict. c. 34. Under the Act 1685, c. 38, there is no doubt that a deed given in to be recorded, and entered in the minute book, but not in the principal register, might within six months after the ingiving be got back by the person who gave it in to be recorded. The statute specifies no purpose for taking out the deed. It was the absolute right of the ingiver to get it up on application within six months. It appears that he might do what he pleases with it when he got it up. The Keeper of the Register was entirely discharged. The ordinary minute book charged the Keeper of the Register with the writ. Another minute book was provided by the Act, in which an entry of the giving out of the writ was made, and this discharged the Keeper of the Register of all responsibility for the writ. This was found by the Legislature to be an inconvenient and dangerous practice. The statute of 1868 was passed to correct it. The preamble refers to the statute 1685, and proceeds—“And whereas the giving up of writs to the parties or others employed by them after the same have been given in to be registered

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in the Books of Council and Session has caused inconvenience, and has been found to interfere with the due and regular booking of the writs; and it is expedient, and will tend to greater regularity and security, that writs after having been given in to be registered in the Books of Council and Session should not be given up, but should remain in the custody of the Keepers of the Registers, subject to the authority and control of the Lords of Council and Session, before being booked, in like manner as after being booked.” The enactment to carry out these objects is—“From and after the passing of this Act no writ that shall have been given in to be registered in the Books of Council and Session shall be taken out by the party or anyone employed by him, nor shall any such writ be given up by the Keepers of the Register for any purpose at any time either before or after the same has been “booked, excepting only when authority of the Lords of Council and Session has been expressly given thereto, and then only under such conditions and limitations as may be expressed in such authority, anything in the said recited Act or in any other Act, or any law or custom to the contrary, notwithstanding.” The question has been raised whether the proviso “excepting only,” &c. is applicable to both parts of the preceding sentence—to the clause “no writ shall be taken out by the party,” as well as to the clause “nor shall any such writ be given up by the Keepers of the Registers.” It is not of much consequence whether the exception applies to both parts or only to the latter. The true meaning of the enactment is that under no circumstances is the party entitled to have the writ delivered up to him, but it is to remain in the custody of the public officer just the same before as after it is booked. That is absolute, but it does not prevent the remedy alternatively sought, that we should allow access to the writ to make the proposed correction. The question is, whether we have a sufficient case before us to grant access. That depends on the object of the petitioners. They allege that the testing clause has been inadvertently filled up with the writer of the deed designated as “David Smith Semple, clerk to David, writer in Paisley,” the surname of the clerk's master being omitted. Consequently the writer is imperfectly designed, and the witnesses in consequence. The mistake is quite intelligible, and the petitioners propose to cure it by the addition of the words “Declaring that the witnesses hereto are David Semple, writer in Paisley, and David Smith Semple, his clerk, and writer hereof.” It is no part of our functions to say whether this will make the deed right or not, just as little as to say whether the deed is bad without it, The application is in itself a reasonable application. Before the statute of 1868 the petitioner Semple, who gave in the deed, would have been entitled to get it up to make the correction without warrant. The Court may now authorise the alteration to be made in the hands of the Keeper of the Register. On these conditions, I am of opinion that authority should be granted.

Lord Deas concurred. His Lordship considered it important to observe that the alteration sought to be made was in the testing clause. The testing clause stands in this peculiar situation, that it may, and indeed ought to be, filled up after the deed is executed. It has been held that the testing clause can be filled up ex intervallo, and even after the death of the granter of the deed, as in the case of Dick, Nov. 21, 1798, Hume, p. 908, where it was found competent to fill up the testing clause of a contract of marriage after the death of both spouses. The peculiarity of this case is that not only is the granter dead, but the deed has been given in to the register. Under the former statute a period of six months was allowed to the ingiver in which he could get up the deed on his own responsibility. There was no doubt that, after the deed had been got up, the writer of the deed might fill up the testing clause. The statute of 1868 took away the privilege of taking out a deed on one's own responsibility, but it would be strange if nothing was substituted. An error in a deed, especially in a deed of settlement, may be overlooked, for it is not usual to look at it in the lifetime of the granter; and at his death it is the practice to hand it directly into the register. If there was no possibility of getting at the deed great injustice might be done. The statute of 1868 says that this shall not be done at the hand of the party, but only under the authority of the Court. I give no opinion on the question whether the authority of the Court is limited to the six months, or on the question whether we shall allow any other clause to be corrected except the testing clause. It is also a material point in favour of the present application that the agent who was responsible for the proper filling up of the testing clause is one of the petitioners, and the clerk who wrote the deed is also alive; and this must be taken in connection with the fact that the part of the deed sought to be corrected is the part for which the agent is responsible, after the execution of the deed, whereas over the other parts of the deed he has no control after execution.

Lord Ardmillan concurred.

Lord Kinloch—I think it clear, beyond a doubt, that the effect of the Act 31 and 32 Vict. c. 34, is to prevent anyone taking out of the records a writ given in to be registered without the special authority of the Court, and this without any distinction between the case of the writ being or not being copied into the record. The statute does away with the privilege conferred by the Act 1685, c. 38, of taking out the writ at pleasure during a period of six months, provided the writ had not been “booked.”

On the other hand, I conceive that, under the provisions of this statute, the writ may be taken out of the register by the authority of the Court equally in the one case as in the other. But it can only be so on sufficient cause shown. The Court must have stated to it a sufficient reason for the proceeding before interponing its authority to what is always a serious step.

I am of opinion that such a reason has been stated in the present case. The object is to amend a defective testing clause, by the writer of the deed adding to it the statement of the fact that David Semple, writer in Paisley, is the person who, by a clerical error, is called in that clause David, writer in Paisley, omitting his surname. Now, taking into view the repeated instances in which a testing clause has been similarly amended, and the amendment held valid if made before the deed had become the subject of judicial discussion, I can have no doubt of the competency and propriety of the Court giving access to the deed for the purpose of this amendment being made. In doing

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this we give no judgment either on the objection-ableness of the deed without the amendment, or on the effect of the amendment to render it valid. We have no parties before us to render such a judgment effectual, and our present intervention cannot prejudice anyone not a party before us. All that is implied in the proceeding is that the case appears to us a fair one for the party being allowed to try the effect of the proposed amendment, and therefore obtaining from us the authority without which he would be excluded from the attempt.

At the same time, as what is proposed may as easily be done in the record office as without it, I concur in thinking it proper to avoid, as we should always do, the deed being removed from the register, by granting authority to the petitioner to obtain access to the deed within the record office, to make the alteration there. This will equally serve the purpose.

The Court pronounced the following interlocutor:—

“ Edinburgh, 28th November 1871.—The Lords of Council and Session having considered the petition of Mrs Eliza Young or Caldwell, widow of the late George Caldwell, sometime stationer and printer, and afterwards residing at Sandyford, near Paisley, and David Semple, writer in Paisley, and having heard counsel for the petitioners and for the Lord Clerk-Register,—grant warrant and authority to the Keeper of the Register of Deeds, Probative Writs, and Protests, on receiving back from the petitioners the extract of the deed after mentioned already issued to them, to give the petitioners or their agent access to the disposition and settlement mentioned in the petition, videlicet, a disposition and settlement executed by the said deceased George Caldwell on the 19th March 1870, in the hands of the said Keeper, for the purpose of allowing the writer of the said disposition and settlement, at sight of the said Keeper, to add at the end of the testing clause thereof the words specified in the prayer of the petition, videlicet, ‘Declaring that the witnesses hereto are David Semple, writer in Paisley, and David Smith Semple, his clerk, and writer hereof;’ and appoint a copy of this deliverance to be added to every extract of the said disposition and settlement that shall be issued by the said Keeper, and to be authenticated by the said Keeper as part of the said extract.”

Solicitors: Agent for Petitioners— A. Kirk Mackie, S.S.C.

1871