Scottish Court of Session Decisions

John Stevenson, a writer and notary-public in Kilmarnock, was on the 14th January 1891 sentenced to five years' penal servitude for embezzlement. Richard Laing, writer and notary-public in Alloa, was on 12th January 1891 sentenced to twelve months' imprisonment for breach of trust and embezzlement, and in May 1891 was, on the petition of the present petitioners, struck off the roll of law-agents. The former of the two was at the date of the present petition still undergoing his sentence, while the latter having served his time in prison had resumed business as a writer in Alloa.

A petition was presented to the Court by the Incorporated Society of Law Agents in Scotland narrating the above facts, and craving that the respondents should be deprived of the office of notary-public, and that their names should be struck off the roll.

The respondent Laing lodged answers to the petition, and pleaded (1) incompetency, (2) mora.

Argued for respondent—(1) The petitioners had no title to present this petition, being an incorporated society of law-agents with no special connection with or control over notaries-public, and were exceeding their powers. In the case of Mitchell, quoted for the petitioners, the objectors were notaries-public. (2) The petition was incompetent. There was no precedent for asking the Court to interfere with notaries-public, and no principle for doing so, for a notary-public was not a servant of the Court, the office being a Crown appointment just as much as that of a judge. The form of presentation to the Court showed this, the document being superscribed by the Royal sign-manual. The next procedure was to present a petition to the Court, who would then make a remit to see if the petitioner was duly qualified for the office, and on this being shown would admit him as a matter of course. The function of the Court was solely to inquire into a petitioner's qualifications for office, and they had no power to deprive him subsequently of it. The form of commission ran—“I,—, Notary-Public, appointed by Royal Warrant, and duly admitted by the Court.”. … The office therefore being inter regalia, the Court could not interfere with it—Stat. 1563, chap. 79. (3) There had been mora in presenting the petition. It should have been presented when the respondent was struck of the roll of law-agents in 1891.

Argued for petitioners—The Court had jurisdiction over notaries-public. They could obtain a Crown warrant as a matter of course, like any other Crown writ, but their admission was absolutely conditional upon obtaining the sanction of the Court. The Court was charged by the Crown with the duty of superintending the admission of notaries-public, and also their conduct during office. The form of writ showed this—“Provided that you find him duly qualified,” … referred to his moral character as well as to his legal qualifications, and showed that the Court must superintend his administration of office as well as his admission. The various Acts as to notaries-public pointed to this, viz.—1503, cap. 64; Sir G. Mackenzie on this Act, i. p. 232; 1551, cap. 24; 1551, cap. 22; 1563, cap. 79 (still in force); 1587, cap. 45; Act of Sederunt, July 30, 1691; 1888, Commission upon Notaries-Public. There was a precedent for the Court depriving them of office— Stuart v. Smith, November 20, 1680, M. 15,928, where this was done (also reported in Stair's Decisions, ii. p. 804); Hope v. Drummond, February 28, 1749; Acts of Sederunt, Folio Coll. p. 448. In a “Caution to Notaries,” Acts of Sederunt, Folio Coll., December 1, 1812, the Court considered the question, but did not deprive the notary of office. As to objections to appointment of notaries-public, these had been raised in Macaulay v. Angus, February 13, 1783;

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Mitchell v. Gregg, F. C., December 7, 1815, M. 13,137; Procurators of Paisley, March 8, 1823, 2 S. 283. (2) The petitioners had an interest to bring forward the petition, as three-fourths of their number were notaries-public, and there was no association of notaries-public. Law-agents were admitted to the office of notary-public without any examination. In Mitchell's case their title was sustained— Incorporated Society of Law Agents v. Clarke, December 3, 1886, 14 R. 161. (3) There had been no undue mora, and the respondent was not entitled to plead it.

At advising—