Scottish Court of Session Decisions

In the year 1886 James Geddes, fisherman, Portgordon, his son, and David Reid, agent of the North of Scotland Bank, Portgordon, embarked in a fishing adventure. The accounts of the joint-adventure were kept by Reid. In order to provide his share of the funds for the joint-adventure James Geddes found it necessary to borrow £65 on the security of certain house property in Gordon Street, Gollachy Village, Portgordon, of which he had a building lease. The loan was arranged by Reid on behalf of Geddes, and the latter granted a bond and assignation in security to the lender. In 1888 this house property was destroyed by fire, and a sum of £280 was received by Geddes from an insurance company for the loss occasioned by the fire. The sum of £280 was handed by Geddes to Reid in September 1888, with instructions that he was to pay off the bond for £65 out of this money, and Reid granted a receipt bearing that the money was received “as a loan until arranged for.” The bond for £65 was paid off by Reid in November 1889, and he received the titles of the property from the lenders along with the bond and assignation and the discharge of the same.

In 1890 James Geddes presented a petition to the Sheriff Court at Banff, praying the Court to ordain David Reid to deliver to him the said title-deeds and writs. There was also a conclusion, with which it is unnecessary further to deal, for decree ordaining the defender to account for his intromissions in connection with the property.

In answer to the first conclusion the defender produced and founded on a letter of authority or mandate which he averred he had received from the pursuer, and which was in these terms:—

“ Portgordon, 28th February 1889.

“This is to certify that I authorise Mr David Reid, bank agent, Portgordon, to lift the titles of my house, No. 13 Gordon Street, Portgordon, and pay the bond of £65 sterling thereon from Messrs Mair & M'Kean, solicitors, Buckie, and to retain them in security for advances made to me and my sons, and to be made by him for the rebuilding of said house. Also authorise him to get a loan on the property, and I bind myself to sign the assignation so soon as it is ready for signature, said loan to meet said advances.

James Reid.

John Reid, witness, clerk, Portgordon.

Lizzie Taylor, witness, domestic servant, 7 Gordon Square, Portgordon.”

The pursuer denied that he had ever signed the letter of authority upon which the defender founded.

The defender pleaded, inter alia—“(1) The defender is not bound to deliver up the said titles to pursuer until the pursuer pays off the defender's advance made for him, or at all events until pursuer makes reasonable provision for that purpose.”

Proof was allowed, the material results of which were as follows:—The defender deponed that on 12th February 1889 he received from the agent of the party who had lent the £65 to the pursuer on the security of his property a letter calling up the bond, and that this notice was the reason which led him to obtain from the pursuer authority to uplift the titles of his house. He explained the terms of the latter part of the letter of authority by saying that he had made advances to the pursuer for the rebuilding of his house, and took this letter to secure himself in place of taking an assignation of the property in his own favour. He said that the pursuer came to see him on other matters of business on 28th February 1889, that he then showed him the letter he had received from the lender's agent, and obtained from him the letter of authority. Witness further deponed—“I had no conversation with the pursuer about his granting an authority previous to that date (28th February). The letter was signed by the pursuer in my office. There were present John Reid and Lizzie Taylor, who appear as witnesses on the letter. We four were present, and no more. Mr Geddes signed in their presence, and they saw him sign.”

The pursuer denied that he had ever signed the letter of authority, or that he had ever signed any document in the presence of John Reid and Lizzie Taylor, by whom his subscription bore to be attested, or acknowledged his subscription of any document to them.

John Reid, the first of the attesting witnesses, was at the date of the document in the employment of the defender. According to his own account, “he attended to the pony and did any office work.” Examined for the pursuer, he deponed that he had been in the habit of signing as

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witness to deeds at the defender's request, that he knew the pursuer, and that he had signed the document in question. In answer to the question, who were present besides himself, he deponed—“I cannot recollect if Mr Geddes was present. I somehow think he was. (Q) Anybody else present?—(A) I could not say…. (Q) Did you generally look to see what name you were called to witness?—(A) I generally saw them sign. (Q) On this occasion did you look to see what signatures you were witnessing?—(A) I could not remember. (Q) Was Lizzie Taylor in the room when you signed?—(A) I think so. (Q) Anybody else?—(A) Yes. (Q) Who was there?—(A) Mr Reid. I some think James Geddes and his son George were there too. (Q) Did you see James Geddes sign any paper on that occasion?—(A) I cannot say. I cannot recollect. (Q) Did the girl Taylor sign at the same time as you?—(A) I cannot recollect. Cross-examined for defender—(Q) You say you several times witnessed papers at the defender's request. Did the defender ever give you any caution as to how you were to sign as witness?—(A) He told me always to see the person sign it. I mean the person whose signature I was witnessing. (Q) Did you ever sign a document as a witness when you did not see the party sign?—(A) No, I cannot recollect if I did. (Q) You said in your examination ‘You some thought that James Geddes was there’?—(A) I could not adhere to that altogether; that means that I am not quite certain. (Q) Did you ever sign a document as a witness when nobody was present but Mr Reid?—(A) Never that I recollect. (Q) Would you have done it if he had asked you?—(A) No; I do not think I would have.”

Lizzie Taylor, the second attesting witness, had been a domestic servant in the service of the defender in February 1889, but had since gone to America. She was examined upon interrogatories. The material part of her evidence was as follows—“(Q) Were you in the habit of signing your name as a witness to documents when you were in defender's service?—(A) Yes sir. (Q) Did you do so at his request?—(A) Yes sir. (Q) Did you, while in defender's service, ever see the pursuer sign any document in defender's office or room?—(A) Do not remember. (Q) Did you ever sign your name as a witness to pursuer's signature?—(A) Not while he was in the office. (Q) Did you ever sign your name as a witness to pursuer's signature, after he had signed, and on his acknowledgment of his signature, or at his request?—(A) No sir. (Q) Were you ever present in defender's office with him, the pursuer, and the said John Reid? If so, did you then see pursuer sign any paper, and did you thereafter add your name as a witness to his signature?—(A) No sir. (Q) Do you think that if you had ever seen the pursuer sign a paper in the defender's office, and you had signed as a witness, you would recollect it distinctly? If so, what is your reason for so thinking?—(A) Yes. For I was well acquainted with them…. (Q) If you signed as a witness the paper No. 5 of process, was the signature ‘James Geddes’ on it when you did so? If it was, did you see it put there, and by whom? If it was not, did defender explain to you what you were witnessing? What did he say?—(A) Do not remember what signature was there. I did not see it put there. Defender did not explain what I was witnessing. He just told me to sign as witness to that paper.”

The result of the rest of the evidence was that it was not proved to the satisfaction of the Court that the pursuer had signed the writ in question.

By section 38 of the Conveyancing and Land Transfer Act of 1874 it is provided—“It shall be no objection to the probative character of a deed, instrument, or writing, whether relating to land or not, that the writer or printer is not named or designed, or that the number of pages is not specified, or that the witnesses are not named or designed in the body of such deed, instrument, or writing, or in the testing clause thereof, provided that where the witnesses are not so named and designed their designations shall be appended to or follow their subscriptions; and such designations may be so appended or added at any time before the deed, instrument, or writing shall have been recorded in any register for preservation, or shall have been founded on in any court, and need not be written by the witnesses themselves.” By section 39 it is provided—“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.”

On 10th April 1891 the Sheriff-Substitute ( Grant) pronounced this interlocutor:—“Finds in fact that the document No. 5 of process is the writ of the pursuer, and in law that the said writ warrants the defender retaining the titles of which delivery is craved; therefore sustains the first plea-in-law for the defender.”

“ Note.—In this case the pursuer's first crave is for the delivery of the titles of a house in Portgordon belonging to him; the defender produces a letter of authority (No. 5 of process) as his warrant to retain them. It is not argued that this letter would be insufficient to warrant retention

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if genuine, but the pursuer's reply is that it is not genuine because the signature bearing to be his is not truly his but is forged.

It is remarkable, at the outset, that both the attesting witnesses speak to the genuineness of their own signatures; if James Geddes' signature be forged, the witnesses must have adhibited their names to that signature already forged, or to a writing that had no principal signature at all.

John Reid, the first of these witnesses, was personally examined, and deponed in cross-examination that the defender (who was in the habit of using him as a witness) always told him to see the person sign when he acted as a witness, and that he could not recollect ever not having done so; and further, that he does not think he would have signed as a witness to a paper in presence of the defender alone; beyond this he is even more hazy, and cannot remember whether the pursuer was present or not when he signed as a witness, or who else precisely were there, whether there were any names on the paper before he put his own on, or whether the pursuer wrote his name in his (John Reid's) presence.

“All this is of little value in itself; at the best, for the pursuer, it does not actively strike at the proper execution of the document; and at the worst, for the defender, it merely amounts to a non memini in essentials. Lizzie Taylor, the other witness, was examined by interrogatories on commission—not a satisfactory method in such a case as this, but unavoidable. She also was in the habit of witnessing deeds at the defender's request. She does not remember if she ever saw the pursuer sign any document in the pursuer's office or room, but she is positive she did not ever witness the pursuer's signature when he was in the defender's office. To the general question if she ever witnessed a blank paper, she says she does not remember, nor does she remember if James Geddes' signature was there before she signed, and if that signature is forged, one or other must have been the case, but she is fairly consistent in maintaining that she did not see James Geddes sign or acknowledge his signature until the answer to the last cross-interrogatory, when she merely ‘cannot remember’ if the pursuer was present when she signed as a witness—a presence which might under some circumstances be regarded as a tacit acknowledgment. This witness does give evidence which practically impeaches the validity of the execution, but the grounds for that evidence, when they come to be tested in detail, are not such as to warrant me in placing much reliance on her memory. The mere non memini on the part of an attesting witness is not enough to cut down the validity of an execution ( Morison v. Maclean's Trustees, L.J.C. Inglis, 24 Dunlop, 625), and even when one gives evidence that directly impugns the deeds, there is still the presumption in its favour which would appear to require extraordinarily clear evidence on the part of that one to rebut ( Clelland v. Clelland, 15 Shaw, 1246; Baird's Trustee v. Murray 11 R. 153).

The pursuer was in defender's house or office on the day in question. I think that is clear from his evidence, and from his endorsation of the £7 cheque. He denies absolutely that he ever signed No. 5 of process, and he and his son James point out the alleged differences between the writing of the words ‘James Geddes’ on number 5 and other admittedly genuine signatures; but neither father nor son could stand cross-examination on this point. Comparatio litterarum is not a wholly satisfactory test at the best, but the pursuer's evidence showed me that I could put no reliance on his opinion founded on this alone. His signature is not a very clearly defined one, and of the numerous specimens in process the variations are so great that I do not wonder that their author was sometimes puzzled himself as to the authenticity. That he did not and would not have signed such a document is far more credible, but here we have his oath balanced by the defender's. Without believing the pursuer to be wilfully untruthful, I think the intimate and friendly business relations at the time between him and the defender offer a reasonable ground for believing that he did sign it, possibly without a very clear idea of all that it implied, or sufficiently realising its importance to impress the fact on his memory. It is an ex facie probative writ; the burden of improbation is on the party challenging; and on the whole evidence I am not satisfied that it is not the genuine writ of the pursuer, and I therefore give it effect.”

The pursuer appealed, and argued—The pursuer denied that he had ever signed the writ in question, and it was clearly proved that he had not signed or acknowledged his signature in presence of one, if not of both, the attesting witnesses. The probative character of the writ was thus destroyed, and the onus was laid on the defender to prove that it was the genuine writ of the pursuer. This onus he had not discharged; indeed the result of the proof was to show that the pursuer never signed the writ in question. The pursuer was therefore entitled to the order craved.

Argued for the defender—This was a probative writ, and required no proof to set it up—Act of 1874, sec. 38; M'Laren, &c. v. Menzies, July 20, 1876, 3 R. 1151; Thomson's Trustees v. Easson, &c., November 2, 1878, 6 R. 141; Brown, December 22, 1883, 11 R. 400; Addison, &c., February 23, 1875, 2 R. 457. The onus therefore lay on the pursuer to prove that it was not his genuine writ but a forgery— Baird's Trustee v. Murray, November 21, 1883, 11 R. 153; Clelland v. Clelland, June 6, 1837, 15 S. 1246. What was necessary in a civil action to establish a charge of forgery appeared from the case of Arnott, &c. v. Burt. November 14, 1872, 11 Macph. 62. The pursuer had failed to discharge the onus laid upon him, and the judgment of the Sheriff should be affirmed.

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At advising—