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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brock v. Brock [1908] ScotLR 858 (12 June 1908) URL: http://www.bailii.org/scot/cases/ScotCS/1908/45SLR0858.html Cite as: [1908] SLR 858, [1908] ScotLR 858 |
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Page: 858↓
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A codicil bore to have been signed by the testator J. B. before two witnesses. The one witness was the law agent who had prepared the deed. The other witness had no knowledge of the testator's identity, save that the testator was introduced to him by his acquaintance the law agent as “Mr B.,” and subsequently acknowledged the signature. Held that the witness had sufficient and credible information that the person to whom he was introduced was the person designed in the writ to justify him in subscribing as witness, and therefore that the requirements of the Act 1681, c. 5, was satisfied.
The Act 1681, c. 5, enacts, inter alia—“That no witness shall subscribe as witness to any partie's subscription unless he then knew that partie and saw him subscribe, or saw or heard him give warrant to a nottar or nottars to subscribe for him, and in evidence thereof touch the nottar's pen, or that the partie did at the time of the witnesses subscribing acknowledge his subscription; otherwise the said witnesses shall be repute and punished as accessorie to forgerie. …”
In this action at the instance of Alexander Brock, joiner, Motherwell, against his brother John Brock, the pursuer sought to reduce a codicil executed by the parties' deceased father, on the ground (1) that the signature to the codicil was forged, and (2) that the execution of the codicil was defective, seeing that one of the two witnesses thereto, John Allan Wilson, did not know the late John Brock, and had no sufficient information as to his identity.
The question as to the forgery turned solely upon the facts of the case.
With reference to the signature of the codicil the facts were as follows:—The codicil bore to have been written by David Barclay, solicitor, Edinburgh, and subscribed at Edinburgh on 24th September
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1896 in presence of the witnesses, the said David Barclay and John Allan Wilson. Mr Barclay deponed that the codicil was signed in his office; that when the deceased John Brock called to sign the codicil, he (the deponer), not having any clerk in his office, went down to the street and met there his acquaintance Mr Wilson, who came to the office to witness the signature. Mr Barclay further deponed—“Mr Wilson went upstairs with me. When I went upstairs I introduced Mr Wilson to Mr Brock—‘This is Mr Wilson, Mr Brock, this is the witness,’ and they just bowed to one another, and I just looked at the deed and I said—‘Oh, you have signed this.’ I took the deed up, and he said—‘Yes.’ ‘Well,’ I said, ‘I would have preferred if you had not done that before Mr Wilson came in.’ He said, ‘Oh, it's all right, that is my signature.’ I said, ‘Mr Wilson, look at that; is that your signature, Mr Brock?’ and Mr Brock said ‘Yes.’ (Q) Did Mr Brock at that time distinctly acknowledge his signature in the presence of the witness?—(A) I made him do so most distinctly. That is in accordance with my ordinary practice. I signed as a witness first, and Mr Wilson followed, and I thanked him and he immediately went away. After the codicil was signed I completed the testing clause, and the deed remained with me.…”
Mr Wilson in his evidence corroborated Mr Barclay's evidence, and added that he had never seen the man he was introduced to before, and did not know if he would know him again if he saw him.
On 20th June 1907 the
The defender reclaimed, and submitted an argument solely on the question of forgery.
The pursuer argued—The codicil was invalid in respect that the requirements of the Act 1681, c. 5, had not been complied with. There were two decisions as to the knowledge required in the witnesses as to the identity of the person signing the deed witnessed. In Campbell v. Robertson, 1698, M. 16,887, it was laid down that “distinct, particular, antecedent knowledge” was not necessary, but in that case the deed was held null because one of the witnesses was called off the street and did not know the person whose signature he witnessed. In Walker v. Adamson, 1716, M. 16,896, the deed was sustained because the witness, although he did not know the party signing the deed, obtained information from the neighbours as to his identity. In the present case the witness Wilson did not know the deceased John Brock, and his only information as to his identity was derived from what he was told by Barclay. Hence the attestation came to rest solely upon Barclay, and this was not enough to satisfy the statute. Both witnesses must have knowledge or credible information.
That plea is founded on the allegation that one of the instrumentary witnesses neither knew Mr Brock nor had any sufficient evidence of his identity.
The question depends on the construction of the Act of Parliament 1681, cap. 5, which, inter alia, enacts that “no witness shall subscribe as witness to any partie's subscription unless he then know that partie and saw him subscribe … or that the partie did at the time of the witnesses subscribing acknowledge his subscription.” There are two decisions on the question what is required under that enactment by way of knowledge on the part of the witnesses of the identity of the party whose signature they are to witness, and these decisions have been held to rule the law ever since. The first is the case of Campbell v. Robertson, M. 16,887. There the sufficiency of the attestation of a bond was challenged on the ground that one of the witnesses was a boy of fourteen who was called off the street to be a witness, and who deponed that he did not know the granter. The Court held that that was not a good attestation, but they laid it down that the knowledge of the party required by the Act “cannot be understood of a distinct, particular, antecedent knowledge, but only that he called himself so to the witnesses.” According to that decision, therefore, a statement by the person whose signature is to be attested that he is the granter of the deed is sufficient to warrant the witness to subscribe as witness. The second case is Walker v. Adamson, M. 16,896, where the circumstances were different. The deed challenged was a disposition granted by one Janet Handyside, and one of the witnesses deponed “that he never saw the subscriber of the disposition before, nor knew that there was such a person till the neighbours in Hastie's Close declared to the deponent that she was the daughter of John Handyside, merchant in Edinburgh, and at her subscribing the said Janet declared to the deponent and two of the neighbours then present that she was the daughter of the said John Handyside, upon
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The result of these decisions seems to me to be that when a deed is challenged on the ground that the witness did not know whose signature he was attesting, the question is whether he had credible information that the person whose signature he attested was the granter of the deed.
Now, the present case stands thus—Mr Barclay says that having no clerk in the office he was in the habit of obtaining the services of a neighbour, a Mr Keenan, and that he had arranged that Mr Keenan should be present on the occasion in question; Keenan, however, did not appear and could not be found, and, accordingly, the services of Mr Wilson, who happened at the time to call for Barclay, were utilised. Barclay introduced Wilson to Mr Brock, and the latter acknowledged his signature, and Wilson signed as witness, Barclay being the other witness.
I am of opinion that Wilson had sufficient and credible information that the person to whom he was introduced was the person designed by the writ to justify him in subscribing as witness. Wilson knew Barclay well and was aware that he was a qualified law agent and carried on business. When, therefore, Barclay introduced a gentleman to him as a client by the name of and as being the person designed in the writ as granter thereof, and when that gentleman tacitly assented to Barclay's statement by acknowledging the introduction, and then acknowledged his signature, I think that Wilson had such credible information as to the identity of the person whose signature he witnessed, as is required by the statute as construed by the judgments to which I have referred. I am therefore of opinion the codicil cannot be set aside on the ground of insufficient authentication.
The Court recalled the interlocutor of the Lord Ordinary and assoilzied the defender..
Counsel for Pursuer (Respondent)— Constable— Hamilton. Agent— J. F. Macdonald, S.S.C.
Counsel for Defender (Reclaimer)— M'Clure, K.C.— Mercer. Agents— Cunningham & Lawson, Solicitors.
