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Cite as: [1879] ScotLR 16_574, [1879] SLR 16_574

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SCOTTISH_SLR_Court_of_Session

Page: 574↓

Court of Session Inner House Second Division.

Wednesday, June 4. 1879. ^*

[ Lord Craighill, Ordinary.

16 SLR 574

Cummings

v.

Mackie and Others (Skeoch's Trustees).

[Ante, p. 268]

Subject_1Writ
Subject_2Witness
Subject_3Statute 1681, cap. 5
Subject_4Acknowledgment of Subscription.

Jury Trial — Bill of Exceptions — Issue — Statute 1681, cap. 5.
Facts:

Where a party who was not present at the time of signing, afterwards subscribes as witness to the signature, it is sufficient compliance with the provisions of the Statute 1681, c. 5, if he receive from the granter of the writ an acknowledgment of his signature, in whatever manner given, whether by words or by acts.

Where the following issue was sent to trial:—“Whether A B and C D, the alleged witnesses to the said trust disposition and settlement, or either of them, did not see the said W S subscribe the same, and did not hear him acknowledge his subscription?” and the presiding judge directed the jury in law that “if there be at the time of the witnesses subscribing any sufficient acknowledgment by the party of his signature, in whatever form that acknowledgment may have been made, that is all which is required,” counsel for one of the parties excepted to the ruling, on the ground that the direction, even if good law, was inappropriate to the special issue. Exception ( dub. Lord Ormidale) disallowed.

Headnote:

This was an action at the instance of Mrs Jane Skeoch or Cumming, and her husband John Cumming, against John Mackie and others, accepting and acting trustees under a trust-disposition and settlement executed by the deceased William Skeoch on April 3, 1878, in which the pursuers sought to reduce the said disposition. The grounds of reduction were sufficiently set forth in the first plea-in-law for the pursuers:—“(1) The deed called for being to the great hurt and prejudice of the pursuers, the same ought to be reduced, in respect that—1st, At the date thereof the said William Skeoch was of unsound mind and incapable of making the same, and the same is not his deed. 2d, The said deed was impetrated from the said William Skeoch while in a weak and facile state of mind, by undue and improper pressure and influence exercised over him, and by fraud and circumvention. 3d, The said deed was granted under essential error. 4th, The alleged signature of the said William Skeoch to the said deed was neither made nor acknowledged in presence of the instrumentary witnesses, and the witnesses did not subscribe as such in presence of each other. 5th, The said deed is also vitiated and erased in substantialibus, and is defective in the solemnities required by law, and is otherwise defective and insufficient as a valid legal instrument.”

The issues for the trial of the case as finally adjusted ( ante, p. 268) were as follows:—“(1) Whether Malcolm M'Lean and John Gordon, the alleged witnesses to the said trust-disposition and settlement, or either of them, did not see the said William Skeoch subscribe the same, and did not hear him acknowledge his subscription? (2) Whether at the date of the said trust disposition and settlement the said William Skeoch was in a weak and facile state of mind, and easily imposed on,” &c.

The case went to a jury on the 4th and following days of March 1879, Lord Craighill being the presiding judge. His Lordship in charging the jury directed them in point of law, with regard to the first of the above issues, that “if there be at the time of the witnesses subscribing any sufficient acknowledgment by the party of his signature, in whatever form that acknowledgment may have been made, that is all which is required.” Pursuer's counsel excepted and demanded that his Lordship should direct the jury “that the witnesses must have heard the party acknowledge
_________________ Footnote _________________

* Decided May 30, 1879

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by his own spoken words his subscription;” and on his Lordship refusing so to direct, pursuer's counsel excepted to the ruling. The jury found for the defenders on both issues.

The pursuer's bill of exceptions subsequently came to be heard before the Second Division, and also a motion at his instance for a new trial, on the ground that the jury's verdict was contrary to the weight of the evidence led. Their Lordships granted a rule on the defenders to show cause, and heard the two motions at the same time.

It was argued for the pursuer, in support of his exceptions, that the true interpretation of the Statute 1681, cap. 5 (“concerning probative witnesses in writs and executions”) was that the acknowledgment by the granter to a witness who had not seen him sign must be by his own expressly spoken words, and that Lord Craighill's direction to the jury was therefore faulty in point of law. The principles laid down by Dickson on Evidence, sec. 695, and Bell on Testing of Deeds, p. 272, were not sound law.

Authorities— Morrison v. MacLean's Trustees, Feb. 27, 1862, 24 D. 625; The Earl of Fife's case, October 29, 1816, 1 Murray 88—Nov. 30, 1819, F.C. — July 17. 1823, 1 Sh. Apps. 498—Dec. 22, 1825, 4 S. 335—May 22, 1826, 2 W. and S. 166; Bell'sLect. 52; Menzies' Lect.; Erskine's Inst. iii. 2, 13; Bell's Principles, sec. 2226; Bell's Comm. (M'Laren's Ed.) i. 341; Tait on Evidence, 90 et seq.; More's Lect. ii. 295; Ross' Bell's Law Dict. 453; Ross' Lect. 149; Sir Geo. Mackenzie on the Statute 1681, c. 5.

The defenders argued—There was nothing in the statute nor in subsequent decisions or authorities by which the acknowledgment necessary was limited to expressly spoken words; it might be made in any sufficient way—see also Lord Eskgrove's opinion on the case of Balfour v. Applin & Steel, quoted in Bell on Testing of Deeds, p. 251 et. seq. On the rule to show cause, the defenders submitted that the weight of the evidence on which the verdict proceeded was in their favour.

At advising—

Judgment:

Lord Justice-Clerk—The point here raised is an interesting one, the more so as I am not aware of any direct authority upon the law as laid down by the presiding judge. The point has been often mooted, but there seems to be no decided case in which it has been given effect to. The law which his Lordship intended to lay down to the jury is this—“The Act 1681 requires that where the witness does not see the granter subscribe, the latter must, in order to authorise the witness in signing his name, acknowledge his signature in his presence, but there is no necessity for a verbal acknowledgment provided that the acts or other indications used are such as to leave no doubt upon the jury's mind.” That was the legal proposition which he laid down to the jury, and I cannot say that it was defective in law. There is sufficient authority for it, and it seems to be in conformity with the statute; for the words there are—“That no witness shall subscribe as witness to any partie's subscription unless he then know that partie and saw him subscribe, or saw or heard him give warrand to a nottar or nottars to subscribe for him, and in evidence thereof touch the nottar's pen, or that the partie did at the time of the witnesses subscribing acknowledge his subscription; otherwise the saids witnesses shall be repute and punished as accessorie to forgerie.” Therefore the Act provides only that at the time of the witness' subscribing the granter shall acknowledge his subscription, and the only inquiry which can now take place is the simple one—Did the witness, or did he not, receive from the granter an acknowledgment of his subscription before signing. There is certainly a danger (as the Dean of Faculty pointed out) in admitting any doubtful words or deeds as sufficient, but I think that even acts, if they be sufficiently clear, would amount to acknowledgment under the statute. If this be so, his Lordship was quite right. Lord Craighill does not say that anything in the way of acknowledgment is sufficient, but “if there be at the time of the witnesses subscribing any sufficient acknowledgment by the party of his signature, in whatever form that acknowledgment may have been made, that is all which is required.” It may be made by words, which is the commoner and less ambiguous method, or by acts, in which case they must be more precisely and carefully scanned. That is my view of the general proposition raised in this issue. As applied to Act of Parliament, his Lordship's view seems to be sound, but I am not prepared to say what modifications might have been necessary had the case been presented in a more precise and specific form. If it had been a case of acknowledgment by acts only, I should have desiderated some allegation of the kind of transaction which took place, and the kind of act to be set up as importing acknowledgment, but as it is we have enough, and on the face of it there is no ground to sustain this exception. It is clear that the testator did acknowledge his subscription by words, although he did not directly say “that is my subscription,” and a testator may acknowledge his signature in many ways without expressly saying that.

I therefore think that on both points his Lordship was right. I shall not go into the authorities, but I may state that the Earl of Fife's case is on the whole unfavourable to the pursuer, and that I have looked there in vain for the slightest indication that express words are essential to fulfil the Act of Parliament. If they be clear and explicit, although inferential, I think they are sufficient. I shall not touch on any other authority; the whole question is raised and stated precisely by Bell on the Testing of Deeds.

I am therefore for refusing the bill of exceptions on this head, and in coming to the second question, a corollary of the first—whether the law laid down by the judge was not misleading as applied to the issue in question—I shall not disguise that as a verbal criticism it appears to have some weight. But I am inclined to think that the real point put to the jury was put to them under the statute, and that whatever is held to fulfil the statute warrants the negativing of the issue and a verdict for the defenders. Now, I think the substance of the statute has been fulfilled, and we could hardly mend the issue if we were to try.

In regard to the motion for a new trial, I think it is hopeless. It is true the evidence does not at all tend one way, but all the doubtful matter was fairly before the jury. From the words used at the time (although there is some conflict of evidence as to these), and from the whole circumstances of the case, I am satisfied that if it be possible

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to prove acknowledgment by words importing such a meaning, the thing has been amply done. We cannot now go back upon the jury's verdict.

On the whole matter, I am for refusing the bill of exceptions, and also the motion for a new trial, and for discharging the rule already granted.

Lord Ormidale—In regard to the motion for a new trial on the ground that the verdict given was contrary to the weight of the evidence, I entirely concur with your Lordship. It is a matter for the jury to decide, and unless they have gone flagrantly wrong it is not the practice of the Court to differ from them on mere questions of evidence, especially in a jury question proper, such as this, and where the judge has concurred with the jury, as he does here. No doubt there is here some evidence which may have been, and probably was, severely criticised by the jury, and which might have led to a different result; but since the whole case was fairly before them I am unwilling to disturb their verdict. I therefore concur in discharging the rule and refusing the pursuer's motion.

I have thus far assumed that there was no law in the matter, but objections have been taken to the directions given by the presiding judge. And here I confess I have felt a difficulty which is not yet wholly removed. We must look at the issue, and judge of the law according to that; that is always the proper course. The issue is sent for the judge to explain to the jury, and right or wrong the issue sent is not then to be criticised by him. He must explain it, and direct accordingly. Now, I agree with your Lordship's views as to the general law applicable to the testing of deeds, and I will not enter upon the authorities quoted further than to remark that I do not get from them this law—which would be necessary for the pursuer's success—that no acknowledgment save oral sound from the testator is sufficient. But does the issue admit of this general law? It is a very specific one—[ reads the issue]. But the judge takes it thus—he lays down that it is of no consequence whether the witness Gordon did or did not hear the testator acknowledge his signature (there is no doubt that he did not see him sign) provided the jury be satisfied that in some other way the testator did acknowledge it to him. Now, does this answer the issue? That is my difficulty; and it is rather hard to obviate it. Lord Craighill clearly did not tie down the jury to the simple question whether Gordon did or did not hear the testator acknowledge; and by so doing, was he not rather putting a new face on the matter? It is suggested that the issue might yet be amended. I think it could only be done by putting this one in its place, “Did Gordon hear, or did he not?” and parties could then go to trial on this definite question. As it was, I certainly think the jury may have been misled by his Lordship's direction in law. I have great difficulty in sustaining that direction; but as I understand that all your Lordships are of a different opinion, and look upon the issue as really less specific than I have done, I am loath to dissent from your Lordships upon a critical and technical objection, although I considered it my duty to state the difficulty which occurred to my mind.

Lord Gifford—I agree with your Lordship in the chair on both branches of the case.

The first question is, Whether we shall allow or disallow a bill of exceptions, and these exceptions may be considered, first, abstractly, in reference to law; and second, particularly, in reference to this issue.

First, then, I agree with your Lordship that we are quite entitled for all that has come and gone to affirm that the acknowledgment may be legally made in any sufficient way. I think the Lord Ordinary's ruling correct in abstract law; it really is just the words of the statute—“the party did at the time of the witnesses subscribing acknowledge his subscription.” This is all the Act provides. The pursuers would have us insert “in words,” but there is no such expression used. It is only required that there be no doubt of the acknowledgment really having been made. Now, a party may acknowledge his signature in various ways—by words, which is the ordinary way—but if he cannot speak, what then? The pursuer would say ‘then not at all’ but suppose a man unable to speak should write down his acknowledgment and point to his signature, or should speak on his fingers as dumb men do, surely that would be good in law. Why should we insist upon the word “hear”—a word, I think, expressly excluded from the statute. Lord Craighill ruled that “if there be at the time of the witnesses subscribing any sufficient acknowledgment by the party of his signature, in whatever form that acknowledgment may have been made, that is all which is required.” I think that is good law, and I am for disallowing the exception; and as to the ruling which the pursuer asked, to the effect that “the witnesses must have heard the party acknowledge by his own spoken words his subscription,” I think his Lordship was right to refuse so to rule. It would have been against the statute, I think, and the cases cited by the pursuer appear to me to go against rather than for him. I was unable to find in the authorities which Mr Nevay quoted anything to establish the proposition that the acknowledgment must necessarily be verbal.

Secondly, as to the issue, and the proposition that the direction though abstractly right may have misled the jury, I am disposed to think that the issue was meant to be one framed under the statute, and that as a fair interpretation the general question was to be tried, whether the witness had heard or received an acknowledgment from the testator. Still, I should be by no means averse to see the issue amended, for this is just the meaning of the 29th section of the recent Court of Session Act 1868. This section was just intended to avoid delay in going over the same question again and again. At the same time, such a course does not seem to be necessary here.

As to the motion for a new trial, I can add nothing to what your Lordships have said except this, that the weight of evidence seems to me to be much more with than against the verdict pronounced by the jury.

Lord Craighill—Three questions have here been raised—1st, as to a new trial; 2d, whether the law laid down was good, quite apart from the terms of this issue? and 3d, whether the law, though abstractly good, was appropriate to the issue or not?

As to the 1st, I entirely agree with what your Lordships have said.

As to the 2d, I was of opinion that nothing

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had ever been said or done either in the House of Lords or in this Court by which the interpretation of the Statute 1681, cap. 5, is limited; and the question remains simply—Did the witnesses see the granter subscribe, or if one of them did not, did he hear him acknowledge his signature? And the question of fact for the jury was just this—Was the acknowledgment, if any, a sufficient one? So far as the statute goes, and so far as the cases cited go, I see no authority for the pursuer's view, but rather authority against him. I therefore hold the law which I laid down to be, viewed abstractly, good.

The 3d point remains—Allowing it to be good law, is it law to introduce into this trial in accordance with this issue, or was the issue so expressed as to include only acknowledgment by word of mouth? I did not take the latter view. The case, as I thought, was taken to trial on a general issue set forth upon record as to the sufficiency of the execution of the deed—whether or not it was duly signed and executed by the testator, and was or was not deficient in the solemnities required by law. This was the question sent to the jury. The inquiry was—“Did one or other of the witnesses fail to see the testator sign, and if so, did he or did he not receive from the testator any sufficient acknowledgment of his signature?” If words are the only legal form of acknowledgment according to the law of Scotland, then there is only one question possible, but if a granter may acknowledge by any form sufficient, then the issue must be so read as to include the double question.

I think that the Earl of Fife's case supports my view, and that there never has been any limitation of the general words of the statute. On the whole matter, I am of opinion that the exceptions should be disallowed, and I concur entirely in the views taken by your Lordship in the chair.

The Court accordingly disallowed the exceptions, and discharged the rule.

Counsel:

Counsel for Pursuers— Dean of Faculty (Fraser)— Nevay. Agent— Robert Broatch, L. A.

Counsel for Defenders— Guthrie Smith— Gebbie. Agents— Adamson & Gulland, W.S.
1879