Scottish Court of Session Decisions

Subject_1Titles to Land Consolidation Act, 1868
Subject_2Females as Instrumentary Witnesses.

Witnesses.

Facts:

A judicial factor produced on his appointment a bond of caution in which the signature of the cautioner was attested by two female witnesses. The Principal Clerk of Session declined to certify the sufficiency, on the ground that it was doubtful whether under the Act of 1868 it was lawful for females to act as instrumentary witnesses in deeds other than those relating to heritage. The preamble of the Act sets forth that—“Whereas it is expedient … to make certain changes upon the law of Scotland in regard to heritable rights, and to the succession to heritable securities in Scotland: Be it enacted,” &c. The 149th section provides that—“All deeds and conveyances, and all documents whatever, mentioned or not mentioned in this Act, and whether relating or not relating to land, having a testing clause, may be partly written and partly printed,” &c. The 139th section, on the other hand, enacting the competency of females to act as instrumentary witnesses, is in these terms—“It shall be competent for any female person of the age of fourteen years or upwards, and not subject to any legal incapacity, to act as an instrumentary witness in the same manner as any male person of that age, who is subject to no legal incapacity, can act according to the present law and practice, and it shall not be competent to challenge any deed or conveyance or writing or document of whatever nature, whether exercised before or after the passing of this Act, on the ground that any instrumentary witness thereto was a female.”

The matter having been brought under the notice of the Lord Ordinary ( Shand), he reported the matter to the First Division of the Court. Held that under the statute females were empowered to act as instrumentary witnesses to any document whatever, whether relating to land or not.