Scottish Court of Session Decisions

The Conveyancing (Scotland) Act 1874 (37 and 38 Vict., c. 94), sec. 39, provides—“No deed, instrument, or writing subscribed by the granter or maker thereof, and bearing to be attested by two witnesses subscribing, and whether relating to land or not, shall be deemed invalid or denied effect according to its legal import because of any informality of execution; but the burden of proving that such deed, instrument, or writing so attested was subscribed by the granter or maker thereof, and by the witnesses by whom such deed, instrument, or writing bears to be attested, shall lie upon the party using or upholding the same, and such proof may be led in any action or proceeding in which such deed, instrument, or writing is founded on or objected to, or in a special application to the Court of Session, or to the Sheriff within whose jurisdiction the defender in any such application resides, to have it declared that such deed, instrument, or writing was subscribed by such granter or maker and witnesses.”

This was a petition under the provision just quoted presented by J. H. M. Garrett of Saint-field, County Down, Ireland, and another, executors-nominate under the last will and testament of the late Alexander Innes junior, of Cowie House, to set up the said deed. Mr Innes

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died on 13th November 1882, leaving the said last will and testament dated 21st September 1881, and recorded in the Sheriff Court Books of the County of Kincardine 6th January 1883.

The petitioners stated—“The said last will and testament was executed in Scotland. It was not holograph of the deceased. In so far as the first witness, the petitioner Mr Garrett, is not designed except in the body of the deed, where he is nominated one of the executors, and there being nothing to show that the executor and the witness of the same name are the same person, and in so far as the second witness Captain Annesley Garrett is nowhere designed in the body of the deed, or in the testing clause thereof, the deed is informally executed in the sense of section 39 of the Conveyancing (Scotland) Act 1874. It is therefore necessary for the petitioners, under section 39 of the said statute, to present the present petition to have it declared that the said last will and testament was subscribed by the granter or maker thereof, and by the witnesses by whom the said deed bears to be attested. The petitioner Mr Garrett, one of the witnesses, is correctly designed in the said deed. The other witness, Captain Annesley Garrett, Bengal Staff Corps, is Assistant Adjutant-General, Hydrabad Contingent, Bolarum, India.”

The petitioners moved the Court to authorise the Sheriff-Clerk of Kincardineshire to deliver to the petitioners or their agents the said deed, for the purpose of exhibiting the same to Captain Garrett, the witness resident in India.

Authorities— Duncan and Others, Petitioners, July 14, 1842, 4 D. 1517; Jolly, Petitioner, June 25, 1864, 2 Macph. 1288; M'Laren, &c., v. Menzies, July 20, 1876, 3 R. 1151; Inglis, Petitioner, March 17, 1882, 9 R. 761; Browne and Others, Petitioners, Nov. 4, 1882, 20 S.L.R. 76.

The Court pronounced this interlocutor:—

“Grant commission to W. B. Jones, Esq., commissioner, H. M.I.C.S., Lieut-Col. J. G. Bell, judicial commissioner, Lieut-Col. J. T. Bushby, deputy commissioner, Major H. C. A. Izezepanski, deputy commissioner, respectively, all of them being in Her Majesty's Indian Civil Service, and each of them in order failing the other, for examination in India, upon oath, of Captain Annesley Garrett, Bengal Staff Corps, Assistant Adjutant-General, Hydrabad Contingent, Bolarum, India, as a witness for the petitioners; and to Mr W. J. N. Liddall, Advocate, Edinburgh, for examination upon oath of James Hugh Moore Garrett of Saintfield, County Down, Ireland, one of the petitioners, also as a witness for the petitioners—the said depositions to be taken on written interrogatories adjusted in common form: And on the further motion of the petitioners, Grant warrant to and authorise the Sheriff-Clerk of Kincardineshire or his deputy to deliver to the agents in Edinburgh for the petitioners the last will and testament in the petition mentioned, dated 21st September 1881, and recorded in the Sheriff Court Books of the county of Kincardine of date 6th January 1883, that the same may be produced before the commissioners or commissioner aforesaid at the taking of the said depositions or deposition, the petitioners granting caution in common form with sufficient security to the amount of £200 to return the said deed to the said Sheriff-Clerk or his deputy quam primum; and previously to the same being delivered to their agents, an extract of the same duly executed being lodged with the said Sheriff-Clerk: The depositions above mentioned to be sealed up by the commissioners or commissioner and transmitted in due course to the Clerk of this process, and to remain subject to the orders of the Court.”