Scottish Court of Session Decisions

This was an action at the instance of Alexander Noble, a fisherman at Fraserburgh, the grandson and heir-at-law of the late Alexander Noble senior. The action was for reduction of a disposition of property at Braehead, granted in 1857 by the pursuer's grandfather in favour of his second son Andrew Noble, the uncle of the pursuer. Andrew Noble had also granted subsequently another disposition and assignation of the same property in favour of George Noble, and reduction of this also was asked in a supplementary action, there being further, in the original action, conclusions for declarator, removing, and count and reckoning for the rents. The actions were conjoined. The leading question now before the Court was the validity of the execution of the first disposition by Alexander Noble senior, the allegations being that his hand was led while subscribing it, by John Dunlop, then clerk in the office of Lewis Chalmers, the law-agent who had prepared the deed.

A proof being allowed, it appeared that Alexander Noble senior was an old man between seventy and eighty years of age when the deed was granted, that he had throughout life been addicted to intemperate habits, and that he was very shaky. He was very feeble, being able to walk only with difficulty. From sundry bonds granted by him, he appeared in early life to have been able to sign his name with ease. John Dunlop, who was called as a witness, deponed inter alia:—“Alexander Noble came to execute that deed. It was duly prepared for his signature. He was very shaky at the time. He asked me if I would steady his hand, and I did so. I steadied it by taking him by the wrist. (Q.) Was it above the wrist? (A.) I really cannot particularise at this date exactly where I placed my hand, but it was so as to steady his hand while he made his signature. (Q.) You think, from what you remember, that it was by the wrist? (A.) I should not have the slightest hesitation in saying so; but I would not have taken hold of it otherwise, as I should have been leading his hand. (Q.) You were aware that it was wrong to lead his hand? (A.) Certainly. (Q.) And you are certainly aware that you did not do so? (A.) I have not the slightest hesitation in saying that I did not do so. I in no way helped to form the letters of his signature. The signature I see on that deed was all done by Noble himself in presence of Mowat and Fraser. Every letter of the signature was old Noble's own formation. I may here remark that if I had led this man's hand, I should certainly have made a better signature than the one now before me. So far as I recollect, the operation of signing his name took some little time—I should say a quarter of an hour or twenty minutes. It was decidedly a work of labour. He stopped very often in the course of his formation of the letters. I think that the ink of one part of his signature may have had time to dry before the whole was finished.” On cross-examination, the witness deponed—“(Q.) Do you think he could have signed the deed without being steadied? (A.) I certainly should say that he could not, otherwise he would not have asked me to have steadied it for him.”

Fraser and Mowat, the instrumentary witnesses to the deed, who both were clerks in the employment of Mr Lewis Chalmers when it was signed, and were present at the signature, were examined as to what took place. Fraser deponed—“I could not say exactly that Dunlop led his hand; but I know that his hand was very shaky, and that he could not have signed his name without being assisted by Dunlop. I could not say whether his hand was held above or below the wrist. I think it was below, but I am not certain. All I know is that it was with very great difficulty and great labour that that signature was attached. (Q.) But you have no reason to say that his hand was led in anyway? (A.) It was steadied. (Q.) It was not used to form the letters? (A.) It may have been. My impression is now that he was assisted. (Q.) Do you think that the hand was guided at all? (A.) My impression is that it was, but I could not say distinctly at this distance of time. (Q.) It is mere impression? (A.) I could not speak to it positively. I did not think of it at the time, because I did not understand those matters then. (Q.) But it is your impression now in thinking back upon it? (A.) Yes, from the long time that took place in getting the signature attached. (Q.) Don't you think that if the hand had been led it would have been done in a much shorter time? (A.) I know that the hand was steadied, and my impression is that it was led, from the time he took. (Q.) You have no other reason except from the time he took to complete his signature? (A.) No. (Q.) It is not from anything you saw except the steadying of the hand? (A.) I cannot say.”

Mowat deponed—“The granter's hand was not led or assisted in adhibiting his signature otherwise than that Mr John Dunlop steadied it by holding his arm above the wrist. To the best of my recollection all that Mr Dunlop did was simply to steady the arm of the granter when adhibiting his signature.”

It was admitted that the deed under reduction was in the terms in which the granter desired to execute it.

The Lord Ordinary pronounced an interlocutor finding, inter alia, “that while the said Alexander

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Noble senior was writing his name at the end of the said disposition and assignation, John Dunlop, the clerk in the office of Lewis Chalmers, the law-agent who had prepared said deed, held the said Alexander Noble's hand about the wrist, and supported his said hand and assisted him to write his name.” His Lordship accordingly reduced the deed.

In a subjoined note the Lord Ordinary, after narrating the facts of the case, proceeds as follows:—“The main question then is, was the disposition of 25th November 1857 truly executed by Alexander Noble himself? Now, there have been called as witnesses the two instrumentary witnesses to the deed, Fraser and Mowat, and Mr Dunlop, who was managing clerk to Mr Chalmers, the solicitor in whose office the deed was prepared. All of these persons were present when the deed was executed. Mr Dunlop says that he was aware the deed was to be executed, that Alexander Noble senior had been frequently coming about the office and giving instructions for it, and that on the day of the execution of the deed he came to the office in a very shaky condition and asked him, Dunlop, to steady his hand while signing the deed. Dunlop says he assisted Noble by taking hold of him about the wrist so as to steady his hand while signing. Then he goes on to explain that he would not have taken hold of his hand because then he would have been leading, and he was quite sure that he did not in any way lead or help the hand in making the signature, and that all the signature was Noble's own. The other witnesses who were present, Mowat and Fraser, are not quite at one about that. Fraser says his impression is that the hand was guided by Dunlop. Mowat says that the hand was held above the wrist, and that Dunlop merely steadied it, but did not hold the hand. It is not proved that the deed was read over to Noble before execution.

“Now the question is, in that state of matters, was there such assistance given by Dunlop to Alexander Noble in signing this deed as to nullify it? There is no case, so far as I am aware, precisely the same as this, but there are circumstances in two of the reported cases, viz., Moncrieff v. Monypenny, M. p. 15,936, affirmed, Robertson, p. 26; and Falconer v. Arbuthnot, M. p. 16,817, and Elchies voce Writ, No. 26, which are very similar to those of the present case. The fullest and best report of the facts of Falconer v. Arbuthnot is contained in the report by Elchies, from which it appears that sundry bonds were granted at different times, some at one month and some at two months before her death, by a lady who was blind or paralytic and shaky. The subscription of the old lady being quarrelled, it was proved that in granting any receipts to tenants she was in use so far to take the assistance of her son, who commonly led her hand. As to the bonds quarrelled, some of the witnesses said that he held her by the wrist; others that his hand was upon hers; others that he only held the end of the pen. None of the witnesses heard the bonds read over to her, but she said to them that the papers had been read to her, and therefore she desired them to witness her subscription. But as she was so blind that she could not read any of them herself, and for anything that appeared in the proof, bonds of another tenor, or for different sums, might have been read, so that there was no evidence that she knew what was signed—the Court reduced them all. Now, in that case it was not proved distinctly what the amount of interference was; but it was one of three things—either that the wrist was held, or that the hand was held, or that the pen was held. And the mere taking by the wrist seems to have been considered as sufficient assistance to prevent the signature from being held as the true signature of the party. In the case of Moncrieff v. Monypenny, it appears from the report in Mor. p. 15,936, that the granter George Moncrieff had signed his christian name ‘George’ and ‘Mon,’ the first three letters of ‘Moncrieff,’ and that he could not from weakness finish the subscription, whereupon the writer of the deed assisted him. The depositions of the witnesses as to what was the actual amount of assistance given are not set forth in the report, but the judgment seems to have proceeded upon this, that he was assisted by the hand being steadied or supported. In the argument for the pursuer, which was sustained by the Court, the defender's argument, which was repelled, is thus commented on:—‘As to the pretence that fixing his arm could not direct his fingers, whose motion only frames the letters, they oppone the witnesses' depositions that he could not have perfected the subscription without that’—i. e., without fixing the arm—‘for he began to stagger, and the syllable “Mon” is a downright scribble.’ The Lords having advised the depositions and debate, sustained the reasons of reduction, and found them both relevant and proved, and therefore reduced the testament. The interlocutor is given in the report of the Appeal Case, Robertson's Appeals, p. 26, whereby, on 15th November 1710, the Court found ‘that the testator did not complete his subscription, but that his hand wavering he was supported by the writer, who assisted him to write the last syllable, and therefore declared said will null and void.’ In the appellant's argument, where he is treating of the evidence, he says that the will had been written out according to the directions of Moncrieff; but Watson, who was the writer of the deed, perceiving his hand to waver, took him by the ‘shackle bone,’ and supported his hand while he wrote the rest of his name. Nevertheless, the Court found that the taking of him by the ‘shackle bone,’ and supporting him by the hand while he wrote his name, was such assistance as to compel them to declare the deed null and void.

Now, I think that these judgments, and also the judgments in other cases, which will be found noted in Menzies, p. 105, all proceed upon general grounds of policy, viz., that it is extremely dangerous to allow any interference with a person in the act of signing a deed. It is not necessary to hold that a general support may not be given to the body of the granter; he may be propped up with pillows, or perhaps even supported by the arm of another, so as to enable him to assume an attitude convenient for writing, but any interference with or approach to his hand is an amount of assistance which the law will not tolerate. It is obviously impossible to draw the line nicely between support to the wrist and support to the hand, and if the hand of another approaches, or is in contact with the hand of the party who is supposed to execute the deed, there

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is room for a very great deal of dangerous manipulation. The duty of the agent of the granter in such a case is to call in the assistance of notaries, in terms of the statute. It is said that the granter of the deed in question, Alexander Noble, had given instructions beforehand for the preparation of the deed, and that several people knew that he had intended to make this disposition of his property; but that goes for nothing. In the report of the case of Falconer v. Arbuthnot, in Morrison, 16.817, it is stated that the bonds were reduced, “notwithstanding the deeds appeared rational, and that some evidence was brought of her intention to give some donations to her grandchildren.’ And it will also be found that that case proceeded upon this general ground that the Court would not enter upon the question whether there had been any imposition upon the part of the beneficiaries, and that interference with parties signing deeds cannot be allowed. ‘The Lords were in noways moved by the argument brought by the pursuer to prove imposition, but they thought there was the utmost danger in sustaining these deeds in those circumstances, whatever reasons there might be to think there was no imposition in this case; yet the law suspected, and even presumed it.’

On these grounds, then, I think that the deed here ought to be set aside.”…

The defenders reclaimed.

Authorities cited— Moncrieff v. Uonypenny, M. 15,936, aff. Kob. 26; Falconer v. Arbuthnot. M. 16,817, Elchies voce “Writ.” 26; Wilson. Hume 912; Ballingall, Hume 916; Menzies’ Lectures on Conveyancing, 105, and cases there noted.

At advising—