Scottish Court of Session Decisions

The Conveyancing (Scotland) Act 1874 (37 and 38 Victoria, cap. 94), sec. 3, enacts—“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.”

Section 41 enacts—“Without prejudice to the present law and practice, any deed, instrument, or writing, whether relating to land or not, may, after having been read over

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to the granter, be validly executed on behalf of such granter, who from any cause, whether permanent or temporary, is unable to write, by one notary-public or justice of the peace subscribing the same for him in his presence and by his authority, without the ceremony of touching the pen, all before two witnesses, and the docquet there to shall set forth that the granter of the deed authorised the execution thereof, and that the same had been read over to him in presence of the witnesses.”

By an alleged assignation, dated 19th March 1891, Charles M'Intosh, Lowend, Tomintoul, assigned to George M'Hardy, merchant there, a lease, dated July 1824, by which the Duke of Gordon let to M'Intosh's author a piece of ground or tenement in Tomintoul, for a period of one hundred and fourteen years from Whitsunday 1825. As M'Intosh was unable to write from bodily weakness the assignation bore to be executed notarially, but the docquet appended to the deed, though signed by a justice of the peace in the presence of two witnesses, was not in the handwriting of the justice.

By assignation, dated 14th April 1891, Charles M'Intosh assigned to George Irvine, Knockandhu, Glenlivet, the foresaid lease. This assignation was also notarially executed, and the docquet was holograph of the notary-public who subscribed it.

In May 1891 George Irvine raised an action in the Sheriff Court of Aberdeen, Kincardine, and Banff, at Banff, against Charles M'Intosh and George M'Hardy, praying the Court to find and declare that the pursuer had the exclusive right to the said lease, and to grant warrant to eject the defenders from the subjects contained in it, and to interdict them from interfering with the pursuer's occupation and possession thereof.

The pursuer pleaded, inter alia—“(1) The pursuer being in the right of said lease is entitled to the declaration prayed for. (2) The defender George M'Hardy having groundlessly and unwarrantably claimed right to enter upon the said subjects, and the defender Charles M'Intosh having refused to quit the same, the pursuer is entitled to decree of ejection and interdict as craved.”

George M'Hardy lodged defences in which he pleaded, inter alia—“(2) The defender George M'Hardy being in right of the original lease of the subjects in virtue of an assignation duly intimated and completed prior to the date of the assignation founded on by the pursuer, is entitled to decree of absolvitor, with expenses. (3) The assignation in favour of the defender George M'Hardy, though informally executed, may be set up in terms of section 39 of the Conveyancing Act (37 and 38 Vict. c. 94), and the defender George M'Hardy is entitled to have it set up accordingly.”

On 23rd July 1891 the Sheriff-Substitute ( J. P. Grant) pronounced the following interlocutor:—“Finds in fact that the docquet appended to No. 8 of process is not holograph of John Grant, the justice of the peace executing the same, and in law that the said writ No. 8 of process is not executed in terms of law, and of no force or effect: Therefore repels the third plea-in-law for the said defender, and sustains the first and second pleas-in-law for the pursuer, and therefore finds and declares, decerns ejection against the defenders as prayed for, and declares the interim interdict already granted perpetual, and decerns.”

“ Note.—In this case two separate deeds are produced, one in favour of the pursuer Irvine, and one in favour of the defender M'Hardy, each purporting to be an assignation by the defender M'Intosh (who does not appear) of a lease of the same heritable subjects in Tomintoul. The question to be decided is between Irvine and M'Hardy, who is to be found entitled to the possession of these subjects. Each claims that M'Intosh gave only him a good title.

At the debate parties' agents were agreed that the defender's writ, being prior in date of execution and of intimation to the landlord to the corresponding writ of the pursuer, other things being equal, would prevail; and the only point taken by the pursuer was that the defender's writ was not executed in terms of law, and was therefore to be held as not executed at all.

The objection taken is that the docquet by the justice of the peace who signs on behalf of the granter, is not holograph of the justice, and that this is absolutely essential— Henry v. Reid, 9 Macph. 503. To this the defender replies, that while he admits the docquet not to be holograph, yet that under the provisions of section 39 of the Conveyancing (Scotland) Act 1874, which is subsequent in date to the case of Henry, he is now entitled to set up the deed by proof. The question therefore only is, whether the provisions of that section apply to the docquet of a justice of the peace signing on behalf and by authority of the granter of a deed.

I think it might be held, without straining the ordinary use of the words, that the justice of the peace is the ‘maker’ of such a docquet, and that the docquet is a ‘writing,’ and even that it may be separately regarded as a ‘writing,’ by itself if that were necessary; and it bears to be attested by two witnesses. But the difficulty to my mind is in applying the words of the section to the defect which its remedial provisions were devised to cure. Is this an ‘informality of execution?’ It was very forcibly put to me by Mr Watson that the defect here was not a mere informality of execution, but an intrinsic nullity in the deed which shows it never to have been executed at all.

It may be observed that the docquet in point of form is admitted by both parties to be good enough— Aitchison's Trustees, 1876, 3 R. 388.

After full consideration I give effect to the pursuer's objection for these reasons. The point settled in Henry's case, where all the authorities are reviewed, is clear, and the ground on which that judgment, following on these authorities, proceeds, is also clear. It is the exceptional position of a notary's docquet in these cases, as is fully

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set forth in the opinions of the learned Judges, and, as far as I can see, that ground is as cogent now as it was then. The docquet is a solemn record by a public officer (now he may be a justice of the peace, formerly he could only be a notary, but that does not affect the argument) of certain concurring facts and circumstances; and the witnesses to the docquet are not merely witnesses to that officer's signature, but also to the truth of his record. Then, what is it that the defender asks to be allowed to prove in this case? I can only take it that he wants to prove what is necessary to make the docquet a good docquet—the truth of what it bears record of; but the 39th section of the Conveyancing (Scotland) Act 1874, on which he founds, contemplates no more than the proof that the writing in question was subscribed by the maker and witnesses, which, if proved in this case, would still leave him short of what is necessary to maintain his position. There are strong considerations of public policy against weakening any of the safeguards provided against an abuse of the power of notarial subscription on behalf of another party. I cannot find warrant for the course the defender proposes to take, which tends in this direction, under the section of the statute on which he founds, for from its language I do not take it to be applicable to the present case. And in conclusion I am glad to think that there is less occasion for the defender in the present case to complain of hardship, because we have not here, as in all the previous cases, so far as I am aware, a competition between the heir ex lege and a person who claims ex provisione hominis, but between two competing deeds of the same granter, and there is room for the presumption that the deed unexceptionally executed truly represents his matured intentions.”

The defender George M'Hardy appealed to the Sheriff ( Guthrie Smith), who on 5th November dismissed the appeal and affirmed the interlocutor appealed against.

The defender appealed to the First Division of the Court of Session, and argued—(1) Under section 41 of the Conveyancing Act of 1874 the docquet signed by a justice of the peace did not require to be holograph. The justice of the peace had nothing to look to but this section, which enacted that he must subscribe the docquet, but not that the docquet was to be in his handwriting. The Act professed to curtail the technicalities of the law, and must receive a liberal construction. This was a mere formality of execution, and was impliedly dispensed with under the Act— M'Laren v. Menzies, July 20, 1876, 3 R. 1151, Lord Gifford's opinion, 1166. The case of Henry v. Reid, February 10, 1871, 9 Macph. 503, was decided before the Act of 1874 was passed, and therefore had no bearing on the present case. (2) Even if the docquet ought to have been holograph, it could be set up by proof under section 39 of the Conveyancing Act. Though the docquet was not in the handwriting of the Justice of the Peace that was a mere informality of execution, and all objections to it on that ground were denied effect under section 39— Gardener v. Lucas, February 8, 1878, 5 R. 638.

Argued for the pursuer—(1) The opening words of section 41 showed that the former law still applied except where a definite change had been made by the statute. The necessity of the docquet being holograph had not been dispensed with, and the law remained as laid down in Henry v. Reid; opinion of Lord Deas in Aitchison's Trustees v. Aitchison, January 21, 1876, 3 R. 393. (2) Section 39, on the face of it, plainly did not apply to notarial docquets at all, as the notary or justice of the peace was not the granter or maker of the deed. In Henry v. Reid it was decided that the docquet was part of the notary's subscription. The assignation founded on by the defender was therefore invalid.

At advising—