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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sir James Duff - Warre - Thomso - Moncreiff v. Earl of Fife - Giffor - Cler - Cranstou - Jeffre - Murra - Cockburn [1823] UKHL 1_Shaw_498 (17 July 1823) URL: http://www.bailii.org/uk/cases/UKHL/1823/1_Shaw_498.html Cite as: [1823] UKHL 1_Shaw_498 |
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Page: 498↓
(1823) 1 Shaw 498
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
2 d Division.
No. 69.
Subject_Title to Pursue — Writ — Slat. 1597, c.185. —
Held,—1.—(affirming the judgment of the Court of Session,) That a party who was served heir of line to the granter of an entail and trust-deed, was not prevented from reducing them by the existence of a prior entail and trust-deed, under which he was called as an heir of entail, but excluded from possessing during his life; and,—2.—(reversing the judgment,) That blindness was not per se a legal incapacity from signing a deed; and that such deed being ex facie probative, it was incumbent on the party objecting to show that it had not been executed in terms of the statutes.
The late James Earl of Fife succeeded in 1765 to entailed estates belonging to the family, and during the course of his life acquired by purchase extensive landed property, the titles of which he took to himself in fee-simple. His immediate younger brother was the Honourable Alexander Duff, who had a son, James, the present respondent. The Earl had no lawful issue; but he had a natural son, Sir James Duff, the appellant.
In 1789 his Lordship, executed an entail of his fee-simple estates, by which he disponed them “to myself and the heirs-male of my body; whom failing, to Alexander Duff, my eldest brothergerman, and the heirs-male of his body; whom failing, to George Duff, my second brother-german, and the heirs-male of his body; whom failing, to Ludovic Duff, my third brother german, and the heirs-male of his body;” whom failing, a series of twenty-two nominatim substitutes, and the heirs-male of their bodies; “whom all failing, to the other heirs-male of the deceased William Duff of Braco, my father's cousin-german; whom failing, to the heirs whatsoever of my body; whom failing, to the heirs whatsoever of the bodies of the haill heirs of entail and substitutes above specified, according to the order above set down; whom failing, to my own nearest heirs and assignees.” He reserved to himself full power to make such alterations as he thought fit; and it appeared that he had intended at the same time to execute a relative trust-deed, for the purpose, inter alia, of limiting the right of possession of his brother Alexander, and his son, the respondent; but no such deed was actually executed till 1797. In that year he conveyed the rents of his estates to trustees for payment of his debts, and subject to a declaration that his brother Alexander and the respondent should, during their lives, be restricted to an annuity, not to exceed £1000, and that the trust should subsist during their respective lives.
On the 28th of November 1801 he executed another trust-deed,
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In both of these trust-deeds he reserved to himself full power to revoke and alter at pleasure.
On the 7th of August 1802 he executed a declaration and obligation, proceeding on the narrative of the deed of entail in 1789, and relative trust-deeds in 1797 and 1801, and that he was determined to exercise the powers therein reserved to him. He then introduced this clause:—
“Therefore wit ye me to have acknowledged and declared, likeas I do hereby testify, acknowledge, and declare, that the foresaid trust-disposition and settlement executed by me as above mentioned, and the whole clauses, obligations, provisions, powers, stipulations, conditions, and declarations therein conceived, shall, in addition to the periods of endurance therein and before specified, remain, subsist, and be effectual to and for all the ends, uses, intents, and purposes therein expressed, during the whole lifetime of James Duff, my nephew, son of the Honourable Alexander Duff of Echt, my immediate younger brother, in the event of his surviving me, and succeeding to the other entailed estates and property, independent of those specified and described in the said trust-disposition and settlement, by and in virtue of the deeds of entail executed by the deceased William Earl of Fife, my father; and
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I hereby seclude and debar the said James Duff from ever succeeding to, or holding possession of the whole or any part of the lands, estates, and property belonging to me, and described in the foresaid trust-disposition and settlement, by virtue of the deeds of entail, or any other deed or writing whatsoever executed or to be executed by me, calling the said James Duff to the said succession, in any manner of way; all which deeds of entail executed or to be executed by me, with all right, title, and interest whatsoever competent to the said James Duff, or the heirs and substitutes of entail, are hereby declared to be also superseded and suspended, and rendered ineffectual during the whole lifetime of the said James Duff accordingly. And further, I hereby give, grant, and confer to and upon the said trustees or trustee named and appointed by me in the foresaid trust-disposition and settlement, (but under the revocation expressed in the deed of alteration executed by me as above mentioned,) surviving and accepting as aforesaid,—whom failing, as before mentioned, all and whatsoever further powers and authority which may be essential, requisite, and necessary for their and his remaining fully vested in the said lands, estates, and property therein described, and for continuing and preserving the said trust thereby created entire and undiminished in their and his persons or person, to and for the ends, uses, intents, and purposes therein expressed, during the whole lifetime of the said James Duff, in addition to the periods of endurance therein and before specified, and that equally and effectually, and in the same manner as if the said trust, and the provisions and stipulations thereof, had been declared to subsist and remain effectual and obligatory, during the lifetime of the said James Duff, in the foresaid trust-disposition and settlement itself; and I hereby bind and oblige myself, my heirs and successors, to make, grant, subscribe, and deliver to and in favour of my said trustees or trustee, surviving and accepting as aforesaid, whom failing, as before mentioned, all writs and deeds which may be requisite and necessary for carrying my intention into full and complete effect, to all intents and purposes whatever; and I hereby declare that these presents shall have reference to, and be held to make a part of, or an addition to the said trust-disposition and settlement above recited.”
By the same deed he declared, “That as it may be of importance that the said Honourable Alexander Duff and James Duff, and other heirs of entail and substitutes succeeding during the subsistence of the trust, should, immediately upon the succession
Page: 501↓
Subsequent to this period, the Earl acquired additional lands, and he formed the resolution of executing a new trust-deed, and a new deed of entail. Accordingly, on the 7th of October 1808, he made two deeds of that description, by which he recalled all those previously executed by him; “but declaring and providing always, that if, by reason of any legal objection to these presents in any way other than by a revocation by myself, or by my authority, the same should not be effectual, but should be reduced or set aside in whole or in part, then the said former trust-disposition, deed of alteration, declaration and obligation, and letter of directions, shall still remain in full force, in so far as these presents may, be effectual, but not otherwise, and no further.” By the trust-deed he conveyed his whole estates and effects to the appellant Sir James Duff, Thomas and Richard Whartons and Stewart Souter, Esqrs., declaring that the appellant should be a sine quo non. Into this deed he also introduced a clause in the same terms as that above quoted, excluding his brother Alexander and the respondent from the possession and enjoyment of the estates during their respective lives. By the deed of entail he destined the estate to himself and the heirs-male of his body; “whom failing, to the Honourable Alexander Duff of Echt, my eldest brother-german, and the heirs-male of his body whom failing, to Lieutenant-General Sir James Duff of Kinstair, and the heirs-male of his body;” whom failing, to the heirs of entail in the deed executed in 1789, among whom were the heirs-female of his brother Alexander, and the heirs-male of his body.
These two deeds were of great length, each extending to upwards of eighty pages, and each of them had a testing clause in these terms:—
“In witness whereof I have subscribed these presents, written upon this and the eighty-one preceding pages of stamped paper by James Gibb, clerk to William Inglis, writer to the signet, at Duff-house, the 7th day of October 1808 years,
Page: 502↓
before these witnesses, Alexander Forteath Williamson and George Wilson, both residing at Duff-house,—the place, date, and witnesses”
names and designations being written by the said ‘George Wilson.’ On each page accordingly there was subscribed his Lordship's signature ‘Fife.’
On the 12th of November of the same year he executed a deed altering in some respects the trust-disposition of the 7th of October 1808, but declaring that in other respects it should subsist and be effectual. The testing clause of that deed of alteration was in these words:—
“In witness whereof these presents, written on this and the three preceding pages of paper legally stamped, by the said Stewart Souter, at my desire, are subscribed by me at Duff-house the 12th day of November 1808 years, before these witnesses, Alexander F. Williamson and George Wilson, at house.”
His Lordship soon thereafter went to London, where he died on the 26th of January 1809, in his 82d year. He was succeeded by his brother Alexander, who was, by the above deeds, excluded from the enjoyment of the trust-estates. No reduction was brought by him of these deeds, and the trustees immediately entered into possession in virtue of them. Earl Alexander died in April 1811, and his son, the respondent, then obtained himself served as nearest and lawful heir in general of the late Earl James. In that character he brought an action of reduction in 1814, in which he called for the deeds of trust and entail of the 7th of October 1808, and concluded that they should be reduced, on the ground, first, That the late Lord Fife, at the time of executing the deeds, was blind to such a degree as to be incapable of distinguishing objects, and it was therefore legally incompetent for him to execute such deeds by his own subscription; and that he could only legally do so by the intervention of two notaries and four witnesses; second, That his Lordship was assisted in making his subscriptions to the said deeds; third, That the deeds had not been read over to him at the time of signing them; and, fourth, That one of the instrumentary witnesses did not see him subscribe, nor hear him acknowledge his subscription.
Against this action the trustees gave in these defences :—
“1. The pursuer has no title to insist in the present action, in respect that he has no legal interest to set aside the deeds thereby challenged, any interest which he might otherwise have had being cut off by previous deeds, particularly by a trust-disposition and settlement executed on the 28th November 1801; a deed of declaration and assignation executed on the 7th August 1802, and a letter of directions written on the 23d November
Page: 503↓
1805, all by the said deceased James Earl of Fife, and not challenged in the present action; and by the express terms of the trust-deed now challenged it is declared, that in case it shall happen that by reason of any legal objections, or in any way other than a revocation by the granter, the said trust-settlement shall not be effectual, the former deeds shall still remain in full force, in so far as the said settlement may not be effectual. As the effect of reducing the deeds called for in this reduction could only be to revive those former settlements, by which the interest of the pursuer is wholly excluded, it is evident that he has no interest to prosecute the reduction, and consequently no legal title to insist;—and, 2. Even supposing that the pursuer had a sufficient title and interest to insist in the reduction, the deeds called for are not liable to challenge on any ground whatever, and the reasons of reduction libelled are entirely without foundation.”
The Lord Ordinary repelled “the preliminary defence of want of title and interest in the pursuer to insist in the present action,” and appointed him to give in a condescendence of the facts he alleged in support of his reasons of reduction; and to this interlocutor the Court, on the 16th of January 1816, adhered. *
Thereafter the following issues were prepared, approved of, and remitted to the Jury Court:—
1st, Whether, at the date of the deeds under reduction, viz. on the 7th of October 1808, James Earl of Fife deceased was totally blind, or was so blind as to be scarcely able to distinguish between light and darkness? and whether the said Earl was at that time incapable of reading any writing, written instrument, or printed book? and if at that time he could discover whether a paper was written upon or not?
2d, Whether the said deeds were read over to the said Earl previous to the said Earl's name being put thereto? and if so, in presence of whom? and if read over to the said Earl as aforesaid, whether they were all, or any of them, read to him at one and the same time, or at different times? and if at different times, whether they were deposited and kept in the room in which they were read, during the whole period which elapsed from the commencement of the reading till the name of the said Earl was put to them as aforesaid, or where they were deposited?
3d, Whether the said Earl's name was put to the said deeds, or any of them, by having his hand directed to the places of signing, or led in making the subscription? or if the said Earl was assisted,
_________________ Footnote _________________ * Not reported.
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4th, Whether the said Earl put, or attempted to put, his name to the said deeds, or any of them, at one and the same time, or whether any period of time intervened? and if there were any interval or intervals of time between the said acts, whether the said deeds, and all of them, were in the possession or custody of the said Earl, or were in the possession or custody of any other person, during such intervals of time?
5th, Whether the said Earl put his name to the deeds under reduction in presence of the two instrumentary witnesses, or either of them? or did acknowledge his subscription to them, or either of them, or at what period he made such acknowledgment?
6th, Whether the said Earl was, until the dates of the deeds under reduction, or at a later period, a man remarkably attentive to, and in the use of transacting every sort of business connected with his estates, and in the practice and habit of executing, and in fact did execute, deeds of all sorts connected with his own affairs, by subscribing the same with his own hand, and without the intervention of notaries?
7th, Whether the said Earl took means to ascertain that the deeds under reduction, alleged to have been signed by him, were conform to the scrolls of deeds prepared by his agents under his special direction, and what were the means he took to ascertain the same?
Upon these issues the Jury returned the following verdict:—
As to the first issue, That James Earl of Fife, at the date of the deeds under reduction, viz. on the 7th of October 1808, was not totally blind, though he could scarcely distinguish between light and darkness. The said Earl was at that time incapable of reading any writing, written instrument, or printed book. He could not at that time discover whether a paper was written upon or not.
As to the second issue, That the said deeds were read over, previous to the Earl's name being put thereto, in presence of Stewart Souter and Alexander Forteith Williamson, or one or other of them. It is not proven whether they were all read to him at one and the same time, or at different times, but one was read at the time that the deeds were signed. There is no proof whether they were deposited and kept in the room in which they were read, during the whole period which elapsed from the commencement of the reading till the name of the said Earl was put to them as aforesaid, or where they were deposited.
As to the third issue, That the said Earl put his name to the
Page: 505↓
As to the fourth issue, That the said Earl put his name to the said deeds at one and the same time.
As to the fifth issue, That the said Earl put his name to the deeds under reduction in presence of one instrumentary witness, viz. Alexander Forteith Williamson; but it is not proven that the said Earl did acknowledge his subscription to George Wilson, the other instrumentary witness.
As to the sixth issue, Proven in the affirmative.
As to the seventh issue, That the only means which the said Earl took to ascertain that the deeds under reduction were conform to the scrolls of deeds prepared by his agents under his special directions, were his having heard the said deeds read over to him.
Lord Fife then applied for a new trial on the second issue, which having been granted, the Jury returned this verdict:—That in respect of the matters of the said issue, it has not been proven that the deeds under reduction were read over to the said Earl of Fife previous to the said Earl's name being put thereto.' The case having then been returned to the Lord Ordinary, he pronounced this interlocutor:—
“Finds that a person about to execute a deed of importance, who, at the time of the execution of it, is, in the words of the verdict in this case, “not totally blind, though he can scarcely distinguish between light and darkness, and is incapable of reading any writing, written instrument, or printed book,” and cannot discover whether a paper was written upon or not, and who can only put his name to the deed by feeling for the finger or fingers of another person on the spot for signature, is not only entitled in law, but ought to execute the deeds by means of notaries and witnesses, in terms of the act 1579, cap. 80; but finds that there is no sufficient authority in the law of Scotland for concluding that a deed signed by a person in the situation above described, in presence of two witnesses, in the usual manner, is null, or can make no faith, provided the deed be proved to have been distinctly read over to the granter, in presence of the witnesses, immediately before the subscription is made, in order to afford that degree of evidence which the law requires, and which is plainly necessary to show that the deed given to the granter to subscribe is truly, in all its parts, the deed which he intended to execute: Finds that the fact of the deed subscribed by a blind man having been read over to him in presence of the witnesses
Page: 506↓
before subscription, is not a fact which is to be presumed in law from the attestation of the witnesses to the fact of his having subscribed the deed, but that the fact of the reading over must be proved by the user of the deed when it is disputed: Finds that it has been established by the verdict of the Jury on the second trial, that it has not been proven that the deeds under reduction were read over to the said Earl of Fife previous to the said Earl's name being put thereto, and finds that the deeds are on this ground reducible: Therefore sustains the reasons of reduction, and reduces, decerns, and declares in terms of the libel.”
To this interlocutor the following note was subjoined:—
“It is proper for the Lord Ordinary to explain in a note why he has not taken notice in this interlocutor of the separate objection to the deeds under reduction, on which a great deal of argument is bestowed in the memorial, founded on the allegation that the late Earl of Fife did not acknowledge his subscription to George Wilson, the instrurmentary witness, who was not present when the subscription was adhibited. The Lord Ordinary's opinion on this point is, that the presumption of the law is, in this particular case, in favour of the deeds; but as it has been established by the verdict that the granter of the deeds was incapable of reading any writing, and could not discover whether paper was written upon or not,—and as it has also been established by the verdict that the Earl put his name to the deeds in presence of one only of the instrumentary witnesses, so that the acknowledgment of his subscription to the other instrumentary witness, which is presumed to have been made, must have been made by a person who could not see the subscriptions (upwards of 160 in number) intended to be acknowledged by him,—the Lord Ordinary thinks that the manner in which the subscriptions are attested, gives rise to an important objection against the validity of the deeds. If the verdict had established that the deeds remained in the actual personal possession of the granter till after the time when the acknowledgment of the subscriptions may have been made, the objection alluded to would have been the less important. If, again, the verdict had borne that the deeds were taken out of Lord Fife's hands immediately after the subscriptions were written, and before his Lordship had an opportunity of meeting with Mr. Wilson, and of acknowledging his subscription to him, the objection to the attestation of the subscription would have appeared more formidable, if not decisive. In referring to the case of Coutts against Straiton, Lord Bankton makes an important observation,
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in a passage, not noticed in the memorials, B. 1. tit. 11. sect. 38.”
Both parties having represented, his Lordship reported the case on informations to the Court, “in respect of the great importance of this case in point of law, and that although the opinion expressed by the Lord Ordinary in the interlocutor represented against remains unaltered, yet it will be more convenient for the Court, and more for the advantage of the parties, that the whole cause should be stated and argued in one paper on each side.”
On advising these informations, the Court adhered to the interlocutor of the Lord Ordinary, “in so far as it sustains the reasons of reduction of the trust-disposition, and reduces and decerns as to these deeds.” Against this interlocutor a short petition was lodged by the trustees; and leave having been given to put in a full one, this was done by the appellant Sir James Duff alone, the other trustees having withdrawn from the contest; and on advising it, with answers, the Court, on the 30th of November 1819, adhered. *
Sir James Duff then appealed, and contended,—
1. That the respondent, Lord Fife, had no title or interest to insist in the action, seeing that, as he had not attempted to reduce the prior trust-deeds, by which he was excluded from the possession of the estates, and as it was declared that if those in question were set aside, the prior deeds should revive, and have full effect; and as the action was brought by him, not in the character of heir of tailzie under the entail of 1789, but as heir of line of the late Earl James, he could derive no advantage by setting aside the present deeds, and consequently had no interest to do so.
2. That, by the statute 1579, c. 185, it was enacted, that all deeds of importance “sall be subscribet and seillet be the principal parties, gif they can subscryve, utherwise be twa famous nottaries, before four famous witnesses, &c., utherwise the saides writtes to mak na faith.” That by this enactment, therefore, it was expressly declared, that if the party could subscribe, the deed must, under the penalty of nullity, be signed by him, and not by notaries; and that it was only in the case where the party could not subscribe that it was lawful to have recourse to the assistance of notaries: that it was proved, not only by the terms of the verdict, but by other written evidence in process,
_________________ Footnote _________________ * See Fac. Coll. 30th November 1819, for the opinions of the Judges.
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3. That as the deeds were ex facie executed in terms of the statutes, and therefore were of themselves probative, it was incumbent on the party attempting to set them aside, and founding on objections not appearing on the face of them, to establish positively by evidence those objections, whereas the verdict merely found that those circumstances which it was necessary for the respondent to establish were not proven, which amounted merely to an answer by the Jury of ignoramus.
On the part of Lord Fife it was answered,—
1. That, before inquiring whether his title and interest to insist in the action were cut off by the previous deed of entail and relative trustdeed it was necessary for the appellant to show that he had such a title and interest in these deeds as to give him a right to make the objection: that by these deeds the appellant had no right whatever in the lands as an heir of entail, but merely as a trustee: that it was his duty in that capacity rather to concur with the respondent in setting aside the entail and relative trustdeed in question, as thereby other substitutes and other burdens were introduced, to the prejudice of those for whom he was trustee, and who had right under the former entail; but that, supposing the appellant was entitled to make the objection, still the respondent had both a good title and interest:—first, Because, as he had been served and retoured heir of law of the late Earl, he had an unquestionable title to reduce every deed executed by him affecting the estates, and prejudicial to the heir, on any competent ground of law, and of course to set aside any one whereby his access to the estates might be impeded, provided the deeds not brought under reduction did not absolutely exclude him, and gave an absolute right to his opponent, which in this case they did not:—second, Because the respondent was expressly called as an heir of entail under the former deed, in the character of heir-male of the body of his father, and the trust-deed did not deprive him of that character, but merely suspended his right to enjoy the estate, and to enter to possession of it; and accordingly he was ordained
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2. That at common law a party who was blind could not legally sign a deed,—a rule which had been established both from the expediency and necessity of the case :—that writing was an art to which it was essential that there should be a mind to direct, a hand to execute, and an eye to see; and although substitutes had been contrived for the hand where it had been lost, yet, where there was no mind to direct, or no eye to see, it was impossible to say that the party was possessed of the art of writing, so as to exercise it to any legal effect; and therefore a person who was deprived of sight fell within that class who were unable to subscribe their names according to law, so that the intervention of notaries was requisite.
3. That although the deeds were no doubt ex facie probative, yet, so soon as it was established that Lord Fife was blind, they lost the character of probative, and the onus probandi that they had been read over to his Lordship, and subscribed in presence of the witnesses, or his subscription acknowledged to them, fell on the appellant; and even, therefore, if blindness was not of itself an absolute incapacity to the execution of a deed, it at least required the supporter of the deeds to show by evidence that they had been executed in terms of law.
The House of Lords pronounced this interlocutor:—
“The Lords find, That, under the circumstances of this case, notwithstanding the defect in sight of the Earl of Fife, proved upon the issues formerly tried in this cause, the signature of the instruments in question by notaries was not required by the statute of 1579, and that the signature of the Earl of Fife was the proper signature to give effect to those instruments, according to the true intent and meaning of the statute: that the signature of the Earl of Fife appearing on the face of the said instruments, and the instruments being apparently attested by two witnesses, the instruments apparently so signed and attested are in law probative deeds; and that to impeach such instruments as probative deeds of the Earl of Fife, the pursuer was bound to prove that the witnesses, or one of them, did not see the Earl of Fife subscribe the said instruments respectively, or hear him acknowledge his subscription thereto: that to impeach the said
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instruments respectively, though in law probative instruments, as the deeds of the Earl of Fife, on the ground that the Earl of Fife did not know the contents of such instruments respectively when he subscribed the same respectively, and that therefore the same were not respectively the deeds of the Earl of Fife, the pursuer was bound to prove that the Earl did not know the contents of such instruments respectively when he subscribed the same respectively: that it is not a solemnity required by law that the said instruments respectively should have been read over to the Earl of Fife at the times of the execution thereof respectively, or at any other time or times, and that, if such instruments respectively were duly executed and attested by the Earl, and in law probative instruments, the knowledge of the Earl of the contents thereof respectively must be presumed, until the contrary should be shown; but that proof that the said instruments respectively were not read over to the Earl of Fife at the time of the execution thereof, is evidence to be received that he did not know the contents of such instruments respectively, but that such evidence is not conclusive evidence that he did not know the contents of such instruments respectively, in as much as his knowledge of the contents of such instruments may be proved by other evidence from which such knowledge may be inferred: that execution by the Earl of Fife of the instrument purporting to be a deed of alteration of the deed of trust-disposition, sought to be reduced, supposing such deed of alteration was executed and attested according to the statute, and that the Earl knew the contents thereof, is evidence to be received to prove that the Earl of Fife did know the contents of such trust-disposition and deed of entail respectively at the time when such trust-disposition and deed of entail appear on the face thereof to have been signed by the said Earl: that the verdicts of the several Juries upon the several issues directed by the Court of Session were in some respects inconsistent, and are insufficient to warrant the interlocutors reducing the said instruments of trust-disposition and deed of entail respectively: that the question properly in issue on the summons of reduction was, whether the instruments sought to be reduced, though apparently probative instruments, and as such to be received as the deeds of the Earl of Fife, were respectively the deeds of the Earl of Fife? that the proof of facts to show that the instruments, though probative instruments, were not the deeds of the Earl of Fife, ought to have been given by the respondent in support of his action for reduction of those instruments as probative deeds. It is therefore ordered and adjudged, that the Page: 511↓
said several interlocutors complained of in the said appeal, in so far as these relate to the title and interest of the pursuer to insist in the present action, be, and the same are hereby affirmed; and, in other respects, that the said interlocutors be, and the same are hereby reversed. And it is further ordered, that the Court of Session in Scotland do direct an issue to try whether the instruments of trust-disposition and deed of entail, both dated the 7th day of October 1808, sought to be reduced, being in law probative instruments, were not, or either of them, was not the deeds or deed of the Earl of Fife; and whether the deed of alteration of the 12th day of November 1808, being in law a probative instrument, was not the deed of the Earl of Fife; and that, upon the trial of such issue, the burden of proof that such instruments respectively were not respectively the deeds or deed of the Earl of Fife, ought to be upon the respondent seeking to reduce the same. And it is further ordered, that the respondent be the pursuer in such issue, and the appellant defender; and that, upon the trial of such issue, the said several instruments be produced, and be received as probative instruments, to be impeached by the respondent by such evidence as he may be advised to offer touching the same, and that thereupon the appellant be at liberty to offer such evidence as he may be advised to offer in support of such instruments respectively; and for that purpose, that the appellant be at liberty to offer the deed of alteration of the 12th day of November 1808, as evidence in support of the instrument of trust-disposition and deed of entail of the 7th day of October 1808, so sought to be reduced, if the appellant shall think fit so to do. And it is further ordered, that, after the trial of such issue, the Court of Session do proceed further in the cause as shall be meet.” *
_________________ Footnote _________________ * See, as to the future progress and ultimate decision of this case, 4. Shaw and Dunlop, No. 241. 242. 497, and Wilson and Shaw's Appeal Cases, May 22, 1826, p. 166.
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My Lords, if the reading is a statutory solemnity, he would have been bound to have told the Jury that it was a statutory solemnity. If it is not a statutory solemnity, he must have informed the Jury that it was not a statutory solemnity. So again, with respect to the acknowledgment of the subscription, if the question had arisen, upon the trial of the issue, whether it was his deed or not, it would have been incumbent upon the Judge to have said upon whom the onus of proof lay. The result, undoubtedly, would turn upon the whole of these, not that you would have had a verdict finding that this was not proven, or that that was not proven,
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Now, the difficulty that strikes me, (supposing we should find that we have authority to grant another issue, and supposing it should be thought fit, upon which I state myself merely hypothetically,)—but supposing we should find that we have authority to grant another issue, and supposing another issue should be granted, I profess I have not, at this moment, (speaking with all deference,) the least hope that this cause will be nearer a conclusion than it was at the time this summons was brought into the Court of Session; because, when one comes to look at the different opinions of the Judges in other cases—when one comes to look at the different opinions of the Judges in this case—and when one comes to look at the state of the law, as we find it in Mr. Bell's book;—looking to every thing which has passed since 1790, and the terms in which the different acts are expressed, it appears to me matter of absolute certainty, that, on the general issue upon this part of the case, every point might have been brought before this House by bill of exceptions, exactly in the same state, and for exactly the same species of discussion as we have now had.
My Lords, there is another thing in this case which distresses me exceedingly, and that is this:—The summons calls for a reduction of the deeds both of October 1808 and November 1808; but the Lord Ordinary, in his judgment, having given, in great good sense and propriety, (whether with good legal judgment, is another consideration,) his reasons, reduces all the three deeds,—the two deeds of October 1808, and the deed of November 1808. This he does after the trial of the issues; he therefore must have taken for granted that the issues had tendered something about that deed of November: but cannot find, in the terms of those issues, that there is a direction to try any thing relative to the deed of November. He must have reduced the deed of November on some ground that he found in the principles on which he reduced the deeds of October 1808. Then, when the matter comes before the Court of Session, the Court of Session reduces the deeds; that is, they sustain the interlocutor of the Lord Ordinary, so far as the interlocutor of the Lord Ordinary reduces the deeds of October 1808. What the effect of that is,—whether that operates to remit again to the Lord Ordinary to consider the effect of the deed of November 1808, is a matter that will require your Lordships' consideration; but it is certainly to me a very singular circumstance, that we are not able at this moment to collect what we are to do with that deed, except by taking into consideration the sort of reasoning I am humbly suggesting to your Lordships upon this subject; and, to be sure, if you are to bring in facts and circumstances as evidence whether a blind man knew his deed; or if it is to be taken as a fact that he did alter, by an effectual deed executed in November 1808, the deeds
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My Lords, the first question that arises in the case is this, (and I take the liberty to mention it to your Lordships, because I am myself the person that suggested it,) that if the law of Scotland—I mean the act of 1540—the act of 1579—the act of 1681, and any other acts which have been alluded to, are to be so interpreted, that if a man is blind, he is therefore within the intent and meaning of these acts—a person who cannot write—then there will be no issue in fact to be tried but whether Lord Fife was blind. But that issue in fact could not have been directed, because one of the singularities in this case is, that if we affirm this judgment, (and I am not now stating whether we shall affirm this judgment or not,) we must reverse many of the opinions which have been expressed by the Judges upon this very case; because the question, whether a person who is blind is a person within the intent and meaning of those statutes which I have been alluding to, is a question on which (five Judges sitting to determine it) three have found that such a man can write within the intent and meaning of the statutes, and two of them have said such a man cannot write within the intent and meaning of the statutes. The consequence of that would have been, that if that had been the only point before the Division, that there being a finding of the Judges who were of opinion that Lord Fife was a man who could write, though blind, there would have been no necessity upon that judgment to send an issue whether he was blind, if it was the opinion of the Court, that, though he was blind, he could in point of law subscribe within the meaning of these statutes.
My Lords, I have analysed these judgments as well as I can, and I will mention them, because I know means will be taken (and I am anxious that means should be taken) to set me right, if I am wrong in my statement of facts. I apprehend that Lord Craigie and the Lord Justice-Clerk were of opinion that he could not subscribe in consequence of being blind; but that Lord Robertson, Lord Glenlee, and Lord Bannatyne were of opinion that he could, notwithstanding his being blind; and that, therefore, the opinion of the Court was, that he was a party who was enabled to write, within the intent and meaning of the statutes. I will just call your Lordships' attention, very shortly, to the words of these statutes; and here, without entering into that question, which was a little agitated between Mr. Clerk and Mr. Warren, as to what the Roman law had to do with the law of Scotland, I think nobody can possibly deny, that the doctrines of the Roman law have, to a very considerable degree, been introduced into the law of Scotland, not because it is the Roman law, but because the people of Scotland thought proper to make it part of their own law, as some of the doctrines of the Roman law form part of the law of this country, also by adoption, in the same manner. But, if your Lordships look to what were the cautions and
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My Lords, in 1579 the next statute, c. 80, passed, which is necessary to be considered. There it was “statute and ordained, be our Soveraine Lord, with advise of his Three Estates in Parliament, that all contractes, obligatiounes, reversiones, assignationes, and discharges of reversiones, or eikes thereto, and generallie all writtes importing heritabil titil, or utheris bandes and obligationes of great importance;” (and your Lordships will find in that book of Mr. Bell's, which has been so often referred to, what are considered ‘obligations of great importance,’ and what are not considered ‘obligations of great importance,’) “to be maid in time cumming, sail be subscrived and seilled be the principal parties, gif they can subscrive, utherwise be twa famous notars, befoir four famous witnesses, denominat be their special dwelling-places, or sum uther evident tokens, that the witnesses may be knawen, being present at that time, utherwise the saidis writtes to make na faith.”
The statute of 1681, c. 5, is very much commented upon. It is in these words:
“Our Soveraign Lord considering that, by the custom introduced, when writing was not so ordinary, witnesses insert in writs, although not subscribing, are probative witnesses, and by their forgetfulness may easily disown their being witnesses: For remeed whereof, his Majestie, with advice and consent of the Estates of Parliament, doth enact and declare, that only subscribing witnesses, in writts to be subscribed by any partie hereafter, shall be probative, and not the witnesses insert not subscribing; and that all such writts to be subscribed hereafter, wherein the writter and witnesses are not designed, shall be null, and are not suppliable by condescending upon the writter, or the designation of the writter and witnesses; and that no witness shall subscribe
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as witness to any parties”
subscription, unless he then know that partie “and saw him subscribe, or saw, or heard him give him warrand to a notar 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.” Your Lordships will permit me to call your attention to the words I have just read, because they describe witnesses of two sorts—the one, a witness who saw the party subscribe—the other, a witness who heard the party acknowledge his subscription; and it is not to be forgotten in this case, that it is an admitted fact that one of these witnesses, Wilson, did not see the party subscribe his name;—whether he heard him acknowledge his subscription, is a fact, with reference to which, it seems to me that I am authorized, by the finding of the Jury, to say no more than that it is not proven either the one way or the other; and it seems a form of finding which they have in the law of Scotland, particularly in criminal cases, I think, having the effect in criminal cases, with respect to the party, of acquittal, as to punishment, however it may bear upon him, more or less, in point of character. I believe I am correct in that. With respect, therefore, to this civil case, all which can be said upon it is, that it is not proven that he acknowledged his subscription. Your Lordships will see the materiality of the distinction between its being proven that he had acknowledged his subscription, or its being proven that he had not acknowledged his subscription; or, of its not being proven, whether he did or did not acknowledge his subscription,— “otherwise the saids witnesses shall be repute and punished as accessorie to forgerie.”
Now, if your Lordships will look at the summons in this case, and if you look at the condescendence in this case, I think you will find, both in the summons and the condescendence, not merely a statement of facts, on the ground of which, if proven or not proven, the deeds ought to be reduced, but a great deal of general reasoning mixed up with the statement of facts, for the purpose of showing the danger of blind men being permitted to execute deeds without attending to certain solemnities or ceremonies; and here I take a distinction between what is called a statutory solemnity, and a circumstance to remove doubt—deed or no deed of the party. For instance, in this case, I will say—for I think all the Judges were agreed upon this—although some say that executing before notaries and witnesses is not required in the case of a blind man, yet all say, if I understand the effect of their judgment—that it must be proved that the deed was read. They all say that; but upon whom the proof lies, becomes an extremely material question; and it seems to be an extremely material question here, because, with respect to the verdict as to read or not read, all which is found is, not that it was read—not that it was not read. (I put out of my consideration for the moment the finding upon the seventh issue.) The finding upon the second issue finds; not that it was not read to him, but that it is ‘not proven’ that it was read. If that be so, then it becomes a most material question upon whom the proof of reading lies? And that has necessarily introduced another
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There is another matter which is likewise extremely distressing in this case; and that is, with respect to the acknowledgment of the subscription. And here, when one speaks of a writ being probative, it will have to be considered whether an instrument executed by a blind man is probative, in the exact sense in which you say that a writ executed by a man in possession of his power of sight, and his other faculties, is probative, if ex facie it be regularly executed; and your Lordships will have to consider, with reference to this point, that as to one of those witnesses purporting to be a witness to the signing, it is admitted now in the pleadings, I think, that he did not see the party sign. It is also clear as to that witness, that there is not even an allegation that that witness saw him sign. There is an allegation that that witness heard him acknowledge his subscription; but then the question will come to be this—supposing, on the ex facie of the deed, it is a deed that is to be probative till it is objected to, without further proof than the production of it, if those circumstances are satisfactorily proved that a man has attested it, as if he were present at the execution of that deed, who was not present at the execution of that deed; and the additional circumstance that the party was blind is proved, then the question will be, whether the quality of probative is not so far destroyed by the proof of the circumstances I am alluding to, as to throw upon the other 6ide the necessity of proving that the deed was read? Upon that point I need not state to your Lordships, that there is a very considerable difference of opinion among the Judges.
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With respect to the fact of the acknowledgment of subscription, that appears to me to be an extremely material part of the case; because, with respect to that, seven of the Judges have expressed an opinion—three of them without qualification, my Lord Justice Clerk speaking of it with diffidence, undoubtedly; but the inclination of his opinion is this—that those deeds, in this very case, are to be taken as deeds where the onus of proving the non-acknowledgment of the subscription lay upon those who object to the deeds; and, therefore, when your Lordships come to consider how the law stands in that respect, you will have to determine whether the judgment of the majority of the Judges in that respect is right or wrong; because the necessity of determining that arises upon the form in which the Jury have found the issue, namely, that it is ‘not proven’ either the one way or the other. With respect to the acknowledgment of the subscription, if the onus of proving that the subscription was acknowledged lay upon those who produced the deed, then the opinion of the majority of the Judges is wrong. If, on the other hand, the onus of proving the subscription was not acknowledged lay upon the other party, the opinion of the majority of the Judges is right.
My Lords, under all these circumstances, therefore, I protest to your Lordships, that this does appear to me to be a case which requires the utmost consideration, the most patient attention, and the most anxious endeavour, if we possibly can in this place, to settle what the law is, before it ought to be sent (if it ever should be sent) to any farther trial before a Jury; and I advert, for a single moment, to the reason I gave originally, that I am quite confident there is no issue which could be sent, which would not place this case in exactly the same state as it was when the summons was first brought in the Court of Session. That is a thing which ought to be avoided, if it possibly can; and all I can pledge myself to the House for is, that, with the utmost anxiety, I will give the best consideration I can to the case. My Lords, I confess I look also to this case with something of fear and trembling, because I know so little of what has been the practice of Scotland with respect to the execution of deeds and other instruments by men who have not their eye-sight. Mr. Bell states, that it is very extraordinary, that down to the case of Ross v. Aglianby, they had not any case upon the subject; but I may venture to say, I think, that if the practice is that the deeds of blind men should be executed by notaries and witnesses according to the statute, the very circumstance that such is the practice ought to have considerable weight upon our minds. If, on the other hand, the practice is not so, it is impossible to describe what may be the mischievous consequences of our laying down this doctrine at this day. If we are by that to give a sanction to a doctrine which will thwart all antecedent practice, and may bring into dispute the validity of settlements and of instruments of every species that have been known in Scotland, where I presume it does happen, as it does in England very frequently, that men who have not the best advice are obliged to execute such instruments. My Lords, the general consequences of this case impose upon us the duty of narrowly
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My Lords, in the present case, questions have arisen, which are of the utmost consequence with respect to every instrument, not executed by a blind man only, but every instrument executed by any person. You are to consider what was the effect of the first statute which appears upon the statute books upon the subject, and what was the law before the statute 1540. If I am to collect what the law was before the statute 1540 from the statute itself, I should conclude that sealing was the stamp which gave the authority to the particular instrument that it was the instrument of the party; and the advantage that might be taken of the law standing in that manner, made it necessary to have a further regulation upon the subject. As writing had then become more common, and the signature of persons capable of writing was a mode of proof better far than the proof by the seal, which might be counterfeited, as indeed writing may be counterfeited, but not with so much ease perhaps, and the seal applied without the knowledge of the party, which seems to
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My Lords, there is a rule in the law of Scotland, rather stronger than it is in this country, with respect to instruments executed apparently with the solemnities required by the statute, and it is considered an advantage in the law of Scotland, (and without considering whether it is or not, such unquestionably appears to be the settled law of Scotland,) that an instrument produced, which, upon the face of it, is an instrument executed according to the form of the statutes, when produced, has faith given to it, in the first instance, as the deed of the party; but, my Lords, a question arises here, upon a fact which is dehors the deed, namely, the blindness. The party being blind is a circumstance not appearing upon the deed, and which cannot appear upon the deed; and it is from that circumstance that there exists in this case something dehors the deed, that gives a colour to the case which it would not otherwise have. Other circumstances might be of the same description—for instance, insanity—that is a matter dehors the deed. A deed might appear to be perfectly executed; but when you produce evidence of insanity—insanity before the deed—insanity continued after the deed—that is a circumstance which destroys, to a certain degree, as I conceive, the probative effect of the deed. Then, my Lords, in the case, for instance, of insanity, it may be alleged it was executed in a lucid interval. If insanity is once proved before and subsequent to the execution of the deed, though not carried to the very point of time when the deed was executed, then the proof of insanity, in the first case, being upon the person to impeach the deed, the proof of lucid interval must lie upon the person who supports the deed.
Now, my Lords, these considerations have weighed very much in my mind in the course of the investigation of this case; and I think we ought to look to it with a view to all such cases, because we are to look to the very principle upon which we are now to decide, whether this is or is not to be considered as the deed of Lord Fife. If I look to this circumstance, of the degree of credit due to the instrument as the deed of Lord Fife from the signature—when I look at this roll—when I compare this roll with the fac-similes which have been produced, with respect to the execution, I should have no hesitation in saying, that, if I
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My Lords, the result, however, upon the whole, is a very serious one, and involves another question, whether, if the instrument appears executed in all the forms, upon what appears upon the view of the instrument itself, would it not therefore be probative, according to the law of Scotland?—and there is matter of doubt only, whether other circumstances do not occur dehors the deed, which may tend to invalidate the presumption, whether that presumption is not in law still in favour of the instrument? That I take to have been a part of the argument strongly urged on the part of the appellant in this case; and I thought very ably urged, whether, if the instrument, upon the face of it, (put out of the question blindness, if that fact was not proved,) the instrument itself being upon the face of it probative, then the presumption of law is, that which ought to decide upon matters which are only doubtful, with respect to any thing dehors the deed. That is a consideration which I wish very much to determine in my mind before I adopt it; but I think it is very material to consider whether that is not a consideration to be adopted; but is founded, as it was insisted upon, in what has been considered as the law of Scotland.
My Lords, we have heard much of the Roman law in this case. I apprehend that no argument can be derived from the Roman law; for it is perfectly clear that the law of Scotland, previous to the statute of 1540, when sealing was used as a means of giving that authenticity that the instrument required, by the application of the seal of the party to the instrument itself, that that has no connexion with that which is considered as the Roman law upon the subject; and, indeed, if your Lordships will look through the statute upon this subject, you will see that the custom is expressly considered as that which had created the law upon the subject previously to the statute of 1540—meaning, as I apprehend, the ancient common law of the land, which, as a written law, there is no trace of.
My Lords, I believe I have now exhausted all that may be material to say at this moment,—the great object which I have in view being to prepare your Lordships to discuss in your own minds the various questions which necessarily arise in this case—to consider the importance of the case that it must decide—what is to be the rule of law in future, with respect to the execution of deeds by persons who are blind; and with respect to one point of the case—the only one I shall now attend to—I mean the acknowledgment of the signature before Wilson: With respect to that part of the case, that will apply to deeds generally, whether executed by blind men, or persons not blind. My Lords, the form of the attestation to the instrument imports that the instrument was signed in the presence of Wilson; and the noble and learned Lord who has already addressed you has adverted to that; but, my Lords, I apprehend that that is the constant form of attestation, and we ought not to infer from that that Wilson has attested what was not in law to be considered
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With respect to the title to pursue, I see no difficulty. The same character of heir, in my mind, gives my Lord Fife a title to pursue. He has a title to pursue, for the purpose of voiding the deeds, and prior deeds; but for no other purpose. Having voided this deed, he will have a right to void others; but independent of that, supposing they were to stand, he has still a right in the character of heir-at-law. He has, I apprehend, the legal estate in him, under the former deeds; he is the person in whom the estate must be, though the beneficial interest is taken out of him by the understanding of former deeds. But be that so, still, if he has an interest as the ultimate heir, he may pursue; and therefore I cannot conceive that there should not be a right in him to pursue, however remote the interest he may have may be, and however problematical; but if it was for no other purpose than to remove this deed, in order to get at the others—and I do not conceive that he is bound, in the shape of reduction, to reduce the other instruments; at the same time, any proceedings he thought fit, from interested motives of his own, to adopt, to homologate those instruments,—I do not see why he might not do it. The circumstances of prior deeds might be such as to induce the heir to reduce the subsequent instruments, and homologate them. I do not see there can be any objection to it upon that ground.—Adjourned.
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My Lords, the view I have taken of this case obliges me to say, in the outset, that I cannot hope to make further progress in the course of this morning, than to state the circumstances of the case, and to state generally what are the considerations that will require your Lordships' attention, meaning on Friday morning, with your Lordships' permission, to go through the examination of the several cases which relate to the doctrines that are laid down in the present case, with a view to see what it may be fit to do with the present case, if we can neither affirm nor reverse the interlocutors complained of—what we are to do with a view to bringing the case to that issue to which it ought to be brought, consistently with your power as a Court of Appeal.
The cause originated by a summons, which your Lordships will find to be a summons to the following effect:—I state the effect of it, because it cannot be necessary, I think, to go through the reading of the whole of the instruments which are stated in that summons, two of which, I think, bear date in October 1808, and one (which appears to me to have been hardly noticed, although it deserves very great notice and attention,) of November 1808.
The summons of reduction is a case in which the Earl of Fife is pursuer, against Thomas Wharton and others, defenders. It calls for the reduction of the deed of the 7th of October 1808, which deed it sets forth at full length. It then states another deed of the same date, the 7th of October 1808, the one of which it calls a trust-disposition and settlement, and the other it calls a deed of entail; and then it mentions a deed of the 12th day of November 1808, which it represents as a deed of alteration on the foresaid trust-disposition and settlement executed by the deceased Earl. It then calls for all other instruments relating to this entail, particularly stated; and it prays a reduction of all those instruments, that they may be declared to be of no avail, for the following among other reasons:—
“First, That the trust-disposition and settlement, the deed of entail, and also the deed of alteration”
—I beg your Lordships' particular attention that it prays the reduction of the deed of alteration, as well as the reduction of the trust-disposition and settlement, on the ground that “the said deeds and other writings called for are vitiated and erased in substantialibus”—because they have not been executed according to the solemnities required by law. Secondly, it calls for the reduction of those instruments, including the deed of alteration, as not
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“That the trust-disposition and settlement, and the deed of entail, and the deed of alteration, were not read over to the Earl of Fife, before sub scribing, in the presence of the two instrumentary witnesses.”
And if that reason went no further than the words which I have read, it would seem to be implied, that unless the deeds were read over to the Earl in the presence of two instrumentary witnesses—if they had been read over to the Earl by twenty persons, one after another,—the deed would not have been a good deed. Then follows, however, another allegation, which is most material:—
“That the said James Earl of Fife had no means of knowing what were the contents of the said three deeds, or of the marginal notes, before he signed them: that the said deeds, or
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other deeds in their place, were read over to the said James Earl of Fife at different times; and between the different readings they were laid aside, and he had no means of knowing that the same deeds were brought back and read to him, or that the whole was read, or that no alteration was made upon the same between the different readings; and the said deeds, or other deeds in their place, were subscribed by the said James Earl of Fife at different times, and between the times of subscribing they were laid aside, and that he had no means of knowing that the same deeds were brought back to him to be subscribed, or that no alteration was made upon the same between the different subscribings;”
and therefore the summons prays, ‘that for this and’ (according to their terms of pleading) other reasons to be proponed at discussing hereof, the trust disposition and settlement, the deed of entail, and the deed of alteration, with all instruments consequent upon them, should be reduced. Then there are the usual terms of praying the reduction, and likewise making the payment of sums of money, for the reasons usually stated in the Courts of Scotland.
My Lords, with the first defence that was taken to this summons I shall not trouble your Lordships a single moment. It is, however, a defence which was urged certainly with very great ability, and which was met again on the other side with very great ability by the counsel who wrote the papers on each side;—I mean the allegation in defence, that the pursuer had no title to pursue. As I shall be obliged to detain your Lordships, I fear, a considerable time upon the other parts of the case, I will merely refer your Lordships to what is stated upon that subject, only stating that I am satisfied the judgment in the Court below is right upon that point; and that the pursuer, for those reasons which are stated, and others, must be taken to have a good title to pursue. That being disposed of, your Lordships will find that the course which the things have taken is what I am now about to represent to your Lordships.
The preliminary defence of want of title and interest in the pursuer to insist in the present action being disposed of, Lord Pitmilly, by the interlocutor which is the first appealed from, appointed the pursuer “to state in a condescendence, in terms of the act of sederunt, the facts he alleges and offers to prove in support of his reasons of reduction; allows the defender to see and answer the condescendence when given in; the answers to be framed also in terms of the act of sederunt;” and to this interlocutor his Lordship adhered, upon advising a representation and answers. The cause then proceeded, further, to the extent of an interlocutor being pronounced by the Lords of Session. There had been a petition on the part of the trustees brought before the Lords of the Second Division. They refused the petition, and adhered to the interlocutor complained of. This brought the cause before his Lordship upon the merits of the grounds of reduction, and there are various grounds of reduction stated in the condescendence. I believe it may be the best thing I can do to read it to your Lordships, or the substance of it. It is in these words:—
“In obedience to the preceding interlocutor,
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the pursuer condescends and says, first, That at and for several years before the dates of the trust-disposition and settlement, the deed of entail, and deed of alteration under reduction, the deceased James Earl of Fife had become blind.”
My Lords, I interpose here for a single moment an observation, the effect of which struck me very much in the outset of this matter, and I confess I have never been able to find a very satisfactory answer—that if the Court were of opinion that a blind man is, within the effect and meaning of the Scotch statutes, a man who cannot write, and that therefore the deed of a blind man should be executed in the same way as a deed is required to be executed by a man who cannot write—that in as much as those deeds certainly are not executed in the way in which the statute requires deeds to be executed by a man who cannot write, if the true and clear interpretation of the statutes is, that a blind man cannot write, the moment it appeared in evidence that Lord Fife was a blind man, there must have been an end of the cause. Second, “That the blindness of the deceased Earl of Fife was occasioned by cataracts which had been formed in his eyes, or by some other disorder, which cataracts or disorder had been observed so early as the year 1798 or 1799, or at least long before the dates of the deeds under reduction.” The third fact stated in the condescendence—I need not read it at length to your Lordships—is a fact alleged to show to what extent, and to what degree, this blindness went. Then there is this allegation:—
“That the blindness of the said deceased Earl of Fife was such, that it was impossible for him to know by means of sight, or by any other sufficient means, that deeds of any description, which might be read over, or might be pretended to be read over to him, were read over according to the true words or contents of such deeds.”
Fifth, “That the trust-disposition and settlement, and deed of entail, are each of them of enormous length”—(this reasoning is unquestionably true)— “are each of them of enormous length, consisting of a great number of separate sheets.”
Then, having stated so much as to the blindness, they go on to state, that the deeds under reduction were not read over to the Earl of Fife in presence of instrumentary witnesses. This reasoning seems to intimate, that if they had been read over by any number of other persons, the want of reading in the presence of the instrumentary witnesses would be fatal to the deeds. Then they further state, “That the said deeds were not read over at one and the same time, but were read over, or pretended to be read over, at different times; and in the intervals they were laid aside and deposited in a room different from that in which they had been read, or pretended to be read: that the Earl could neither know that that which was read was truly read, nor that, when the readings commenced after the intervals, the same paper or deed was brought back to him, in order to have the reading thereof continued; but, from his extreme blindness, every reading might have been wrong, without his knowing it; and, from the same cause, those parts of the papers which had been read might, during the interval,
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My Lords, upon so much of the condescendence as I have read, I would observe to your Lordships, that this species of pleading partly consists of argument and reasoning on what may be the consequences in respect of fraud and imposition, if a blind man is to execute a settlement in the manner in which it is contended Lord Fife executed this. Whatever may be the consequences—however open to fraud and to imposition—if the law does allow a man to execute—(I am now putting it without stating any opinion upon it)—but if the law does allow a man to execute in the way in which Lord Fife executed this instrument, that may be an exceedingly good reason for changing the law, in order to prevent blind men from being imposed upon by those means, and in consequence of its being found that all this reasoning is extremely just. But unless the law is so now, that a blind man cannot execute an instrument, because such and such consequences may follow from instruments being executed as this instrument was executed by Lord Fife, it is one thing to alter by legislation,
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My Lords, the next allegation has a material connexion with what passes afterwards in this cause, namely, “that while the Earl was employed in subscribing or attempting to subscribe the said deeds or sheets of paper, George Wilson, one of the instrumentary witnesses, was employed upon the Earl's business in another room—the charter-room and neither saw the Earl subscribe, nor did he afterwards hear him ac knowledge his subscription;” and this is certainly a very material allegation with reference to the sufficiency of the execution of the instrument, and with reference to a question, or two questions perhaps, which arise in the consideration of this question, namely, upon whom it lies to prove that Wilson did not see the Earl subscribe, and that he did not afterwards hear him acknowledge his subscription—whether it lies either upon the one party or the other party—whether the result of the trials, and the effect of the verdicts, which I shall have occasion to advert to by and by, prove decisively, as they ought to do, how that fact stands.
Then there is another allegation, “that after the said deeds, or sheets of paper composing the said trust-disposition and settlement and deed of entail, were subscribed or pretended to be subscribed by the Earl, they were brought to the charter-room by Stewart Souter, one of the defenders in this process, who desired Mr. Wilson to fill up the testing clause, and sign his name as one of the instrumentary witnesses: that it did not occur to either of them at the time that it would be irregular for Mr. Wilson to sign as an instrumentary witness, without having seen the Earl subscribe the deeds, or having heard him acknowledge the subscription thereto; and that Mr. Wilson accordingly did, agreeably to the request of Mr. Stewart Souter, sign his name as an instrumentary witness to the said deeds: that the said Earl was not present when the said Stewart Souter brought the said deeds to the charter-room, nor when he made the said request to Mr. Wilson, nor when Mr. Wilson subscribed as an instrumentary witness; nor did the said Earl, either at that time or afterwards, either directly or indirectly, acknowledge in the hearing of Mr. Wilson that he had subscribed the deeds.”
My Lords, to this condescendence an answer was put in by the trustees, in which they state with respect to the blindness—that is, in answer to the first, second, third, and fourth articles of the condescendence which relate to the blindness—
“The defenders, without admitting, but denying the relevancy thereof, deny the truth of the facts therein stated, and aver that, at the dates of the several deeds under reduction, the deceased James Earl of Fife had not become blind: that his sight was to a considerable degree enfeebled by age or otherwise, but that he continued to enjoy the powers and use of it to a sufficient degree to enable him to read and to write: that he did in fact continue both to read and to write long after the dates of the deeds under reduction, and in particular that his power and use of sight were such as to enable him legally and effectually to execute any deed without the intervention and assistance of
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public notaries.”
Then, in answer to the fifth article, they say, that “it may be sufficient to refer to the deeds themselves produced in process.” In answer to the sixth, seventh, and eighth, they say, “that the deeds under reduction, executed by the Earl on the 7th day of October 1808, were read over to him in presence of Alexander F. Williamson, one of the instrumentary witnesses, and Stewart Souter, his confidential factor: that these deeds were thereafter duly signed by the Earl in presence of the said persons: that the deeds so read over to his Lordship were the 6ame deeds which he thereafter proceeded to sign: that no fraud was practised to substitute one paper, or one sheet of paper, for another; and that no such fraud could have been practised in this case with any greater facility or chance of success, than in every other case where the aid of confidential men of business in the preparation and execution of deeds is employed.” To the ninth article the defenders make answer, “that the said Earl had sufficient means to know and be assured of the contents of the deeds which he actually subscribed.” Then they say, that with respect to the fifth, sixth, seventh, eighth, and ninth articles of the condescendence, “they are to be understood as making these answers with out admitting, but, on the other hand, denying the relevancy of them.” To the tenth they say, “that in subscribing the deeds under reduction, the Earl received no assistance, or, at any rate, none of a kind or degree to indicate any legal incapacity to execute such deeds without the intervention of public notaries.” In answer to the eleventh and twelfth articles, (which are in substance the same with articles fourth, seventh, and eighth,) “they refer to the answers already made to those former articles; and, in answer to the thirteenth, they deny that the said Earl was unable to distinguish his own signature, and acknowledge it as such.” With respect to the fourteenth, fifteenth, and sixteenth, they say, “that George Wilson, one of the instrumentary witnesses, was not present when the said Earl subscribed the deeds under reduction, but that his subscription was duly acknowledged by the said Earl in his presence.” Then they further state, that “if the condescendence for the pursuer appears to be relevant, proof ought to proceed at Edinburgh.”
My Lords, this condescendence and these answers forming the state of the pleadings, so far as I have proceeded, the appellant states in his Case, that with respect to all these grounds of reduction, three only have become the subject of serious consideration. The first, “That the deeds of the Earl could not have been validly executed without the intervention of public notaries.” The second, “That the subscriptions of the Earl had not been adhibited, or duly acknowledged, in the presence of the instrumentary witnesses.” And the third, “That the deeds had not been read over in the presence of the witnesses; and that the Earl had no certain means of knowing what were the contents of the deeds immediately before he signed them.”
My Lords, it appears that it was thought advisable to send these matters to the Jury Court; and in this country, I apprehend, if we had had a case of this sort in our Courts, which have both legal and equitable
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My Lords, after this, the amended answers were given in to the condescendence of the Earl of Fife, and those amended answers do require attention. They state, “that the late James Earl of Fife was a man of strong natural understanding, originally intended and bred for the Bar”—I suppose this is to prove that he was a man of strong understanding—
“before the decease of an elder brother,—of eminent talents and capacity through life, for the conduct of ordinary business—of constant activity and vigilance in the management of his own affairs, and indefatigable in the direction and execution of the plans he had formed for enlarging and improving his estates, and for settling them upon his heirs and successors, and adjusting and executing the deeds for that purpose, in the mode which he had conceived to be the most expedient and desirable.”
I hope your Lordships will excuse me the tediousness which belongs to the reading of all these matters; but it is of some importance that it should be understood what are the differences between the form of pleadings in England and Scotland, for more reasons than one, to which I do not wish to refer. “That at the dates of the deeds under reduction, and downwards till near the period of his death, the late James Earl of Fife continued to possess, without diminution, all his mental faculties, and to exercise, without abatement, all his habits of activity and anxious vigilance in the direction and conduct of bis affairs: that during some of the latter years of his life, whether from age or other causes, his powers of vision were considerably impaired; in consequence of which, in the perusal of printed books, as well as of manuscript papers, he was usually in the practice of availing himself of the aid of some confidential persons whom he retained in his service, and upon whose honesty and discretion he placed reliance; but that he was by no means blind, as is alleged in the first, second, third, and fourth articles of the pursuer's condescendence: that he retained the powers of sight in a degree sufficient for all ordinary purposes in the conduct of business, as well as for the purposes of society; and in particular that he possessed the powers of reading and of writing, and continued occasionally in the practice both of reading and of writing, whenever it suited his inclination or his objects to do so: that he was in the
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My Lords, I believe I am not inaccurate, but if I am, I shall be able to correct that inaccuracy presently; but I believe that Wilson was not present when the Earl subscribed the deeds; and, with respect to the acknowledgment of the subscription, the effect of the verdict is, that it is not proven. What that means in such a case, it may perhaps be of some importance to have very well understood.
My Lords, this condescendence and these answers consist partly of allegation of fact, and partly of allegation of reasoning; partly of allegation of reasoning as to what may be the consequences of acceding to the doctrines insisted upon by the pursuer with respect to various deeds and instruments executed by Lord Fife, and various deeds and instruments executed by other persons under similar circumstances. In rightly considering pleadings of this nature, difficulties sometimes arise to a person whose views of pleading are so exceedingly narrow as those of the person who has now the honour to address your Lordships.
There were additions made to this condescendence of the Earl of Fife, in which he states that these answers are irregular in point of form, and “are calculated for no other purpose than to throw the cause into confusion;”
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My Lords, there was afterwards a minute given in on behalf of the Earl of Fife, under the leave of the Court, and he says “that the granter of the deeds was, at their date, in such a state of blindness as to render him legally incapable of executing them; and, in the second place, that the instrumentary witnesses did not see him subscribe, or hear him acknowledge his subscription.” This was bringing the thing to a point; because, if he was blind, and therefore incapable, by his own signature, of executing an instrument—if that be the construction of the statute, which I shall have to read to your Lordships by and by, whether they did see him write, or did hear him acknowledge his subscription, would be an inquiry not very useful, if the fact were, that being blind, he was therefore incapable of executing them. If, then, he was incapable of executing them by subscription, then it becomes a very important question whether the instrumentary witnesses saw him subscribe, or heard him acknowledge his subscription; and it becomes likewise a very material question, upon whom it is that the burden of proof is cast by the law—upon which party it is? The allegation is, “that the instrumentary witnesses did not see him subscribe, or hear him acknowledge his subscription.”
My Lords, after the pleadings had been closed on both sides, the Court were pleased to direct that there should be seven issues; and those seven issues were in the following form:—
“1st, Whether, at the date of the deeds under reduction, viz. on the 7th October 1808, James Earl of Fife deceased was totally blind, or was so blind as to be scarcely able to distinguish between light and darkness? and whether the said Earl was at that time incapable of reading any writing, written instrument, or printed book; and if at that time he could discover whether a paper was written upon or not? 2d, Whether the said deeds were read over to the said Earl, previous to the said Earl's name being put thereto; and if so, in presence of whom; and if read over to the said Earl as aforesaid, whether they were all or any of them read to him at one and the same time, or at different times; and if at different times, whether they were deposited and kept in the room in which they were read, during the whole period which elapsed from the commencement of the reading, till the name of the said Earl was put to them as aforesaid, or where they were deposited? 3dly, Whether the Earl's name was put to the deeds, or any of them, by having his hand directed to the places of signing, or led in making the subscription? 4thly, Whether the Earl put, or attempted to put, his name to the deeds, or any of them, at one and the same time, or whether any period of time intervened; and if there were any interval or intervals of time between the acts, whether the deeds and all of them were in the possession or custody of the Earl, or were in the possession or custody of any other person during such intervals of time? 5thly, Whether the Earl put his name to the deeds
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under reduction, in presence of the two instrumentary witnesses, or either of them? or did acknowledge his subscription to them or either of them? or at what period he made such acknowledgment? 6thly, Whether the Earl was, until the dates of the deeds under reduction, or at a later period, a man remarkably attentive to, and in the use of transacting every sort of business connected with his estates, and in the practice and habit of executing, and in fact did execute, deeds of all sorts connected with his own affairs, by subscribing the same with his own hand, and without the intervention of notaries? 7thly, Whether the said Earl took means to ascertain that the deeds under reduction, alleged to have been signed by him, were conform to the scrolls of deeds prepared by his agents under his special direction, and what were the means he took to ascertain the same?”
These issues were directed to be sent to the Jury Court, and the Jury Court returned the following verdict:—
“That James Earl of Fife, at the date of the deeds under reduction, viz. on the 7th of October 1808, was not totally blind”
—that is, in October 1808—there is no mention of November 1808; though, to be sure, it is hardly possible that his power of seeing could have increased during that time—
“was not totally blind, though he could scarcely distinguish between light and darkness: that the Earl was at that time incapable of reading any writing, written instrument, or printed book. He could not at that time discover whether a paper was written upon or not.”
So that, whether he was blind or not, they do not find. “As to the second issue, that the deeds were read over previous to the Earl's name being put thereto in presence of Souter and Williamson, or one or other of them;” but the verdict does not find which. Then they go on to state, that “it is not proven whether they were all read to him at one and the same time, or at different times; but one was read at the time that the deeds were signed.” Your Lordships observe, that the finding is, that it is not proven whether they were read at one and the same time. Perhaps I do not very well understand the practice in the Courts in Scottand in these matters; but I do understand that it is a very familiar thing in the administration of the Criminal Courts of Scotland, on the trial, whether a person is guilty or not guilty, for the Jury not to say guilty or not guilty in many cases, but to say ‘not proven—that is to say, that they are satisfied of neither the man's innocence nor his guilt—that they cannot find him guilty, and do not choose to find him not guilty; but they find that his guilt is not proven. Now, according to our law, what is not proved does not exist. Whether this same sort of practice obtains in matters of civil question, or whether it was ever meant to obtain in the finding of Juries in civil cases under the new institution of the Jury Court, is a point that is certainly worthy of consideration; and it seems to be a very material question when you are to ask yourselves upon whom does the onus probandi lie? Because, if the onus probandi lies upon me, and if I can get no further than ‘not proven’ that the thing was so and so, I have not carried the onus probandi on my shoulders with perfectly good effect. This, however, is a
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Now I do not find in the subsequent proceedings that this finding that the deeds had been read over to him, as a means of ascertaining that the deeds under reduction were conform to the scrolls of deeds prepared by his agents under his special directions, has been displaced, except by what took place upon the second trial with respect to the second issue. I think it then becomes a question, Whether this is still to stand as part of the finding of one Jury, displaced or not displaced by a contrary finding of another Jury,—both findings being before the Court, whether they are to be considered the one as overruling the other, or to be considered as two findings inconsistent with each other? They are two findings, out of which you cannot find satisfactorily what is the fact to which they relate.
My Lords, after this a motion was made for a new trial, upon the ground (if I recollect this part of the case rightly) that some evidence had not been given which ought to have been given. It is not material, but the Court directed, in consequence of that application, that there should be a new trial upon the second issue; and when they came to consider how that new trial was to take place, the pursuer, the Earl of Fife, insisted that the trustees should begin and be required to prove affirmatively. The trustees, on the other hand, insisted, not that they were to prove affirmatively, but that the matter was to go on in the shape of the negative of the issues which had been directed. The Court did not think fit to alter the terms of the issues. It is alleged on the one side—certainly not admitted on the other—that this is some evidence of the understanding of those who advised the Earl of Fife, that more of the onus probandi lay upon him than had been considered. That, however, I shall take occasion to refer to hereafter.
My Lords, upon this trial a question arose with respect to the directions
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The finding in consequence of the second trial was this:—
“That it has not been proven that the deeds under reduction were read over to the Earl of Fife, previous to the Earl's name being put thereto.”
So that we have, upon the finding of the first Jury upon the seventh issue, “that the only means which the Earl took to ascertain that the deeds under reduction were conform to the scrolls of deeds prepared by his agents under his special directions, were his having heard the said deeds read over to him;” and by the second Jury we have the finding in the words I have just mentioned to your Lordships, namely, not an allegation in such a form as it would be in our law. Whether the effect is or is not different will remain to be considered, arising out of the particular circumstances. The finding in the one case that I have read, in respect of the second issue, is positive that he had heard the deeds read over to him; in the other it is, that it had not been proven that the deeds under reduction were read over to the Earl, previous to his name being put thereto.
My Lords, after this verdict the matter came on before the Lord Ordinary, my Lord Pitmilly, as I take it he was Ordinary again; and as he was pleased to state this upon the subject, it is material that your Lordships should attend to this interlocutor. That, I observe, was on the 24th January 1818. In the fourth interlocutor his Lordship says, that “having considered the mutual memorials for the parties in this cause, with the whole process, finds that a person about to execute a deed of importance”—(your Lordships know that under the statute there is a distinction between an ordinary deed and a deed of importance,)—
“who, at the time of the execution of it, is, in the words of the verdict of this case, not totally blind, though he can scarcely distinguish between light and darkness, and is incapable of reading any writing, written instrument or printed book, and cannot discover whether a paper was written upon or not, and who can only put his name to the deed by feeling for the finger or fingers of another person on the spot for signature, is not only entitled in law, but ought to execute the deeds by means of notaries and witnesses, in terms of the act 1579, c. 80; but finds that there is no sufficient authority in the law of Scotland for concluding that a deed signed by a person in the situation above described, in presence of two witnesses, in the usual manner, is null, or can make no faith, provided the deed be proved to have been distinctly read over to the granter in presence of the witnesses, immediately before the subscription
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is made.”
By the words ‘the witnesses’ there, I understand his Lordship to mean the witnesses making the attestation; “in order to afford that degree of evidence which the law requires, and which is plainly necessary to show that the deed given to the grauter to subscribe is truly in all its parts the deed which he intended to execute.”
My Lords, so far as I have read the interlocutor of this very learned Judge, your Lordships observe that he states, that a person having this degree of blindness which made him unable to see how to write, is not only entitled in law, but ought to execute the deeds by means of notaries and witnesses, in terms of the act 1579, c. 80; and therefore one question which your Lordships will have to decide, and which you must decide, is, Whether a person in the situation and circumstances in which my Lord Fife stood in the exercise of his faculties, is a person alluded to at all by that statute of 1579? “But finds that there is no sufficient authority in the law of Scotland for concluding that a deed signed by a person in the situation above described, in presence of two witnesses, in the usual manner, is null, or can make no faith, provided the deed be proved to have been distinctly read over to the granter, in presence of the witnesses, immediately before the subscription is made, in order to afford that degree of evidence which the law requires, and which is plainly necessary to show that the deed given to the granter to subscribe is truly in all its parts the deed which he intended to execute.” I here also understand his Lordship, the Lord Ordinary, to he still proceeding upon the notion that this statute of 1579 does embrace the case of a person in my Lord Fife's circumstances. “That the fact of the deed subscribed by a blind man having been read over to him in presence of the witnesses before subscription, is not a fact which is to be presumed in law from the attestation of the witnesses to the fact of his having subscribed the deeds”—that is, that the mere fact of his having subscribed the deeds is not to be taken as a ground of presumption that they had been read over to him in the presence of witnesses; “but that the fact of the reading over must be proved by the user of the deed when it is disputed: Finds that it has been established by the verdict of the Jury on the second trial, that it has not been proven that the deeds under reduction were read over to the said Earl of Fife, previous to the said Earl's name being put thereto; and finds that the deeds are on this ground reducible.” Now this last finding appears to me perfectly consistent; because, if my Lord Pitmilly was of opinion, and if that opinion was right—that the burden of proving that the deed was read over lay upon the person who was the user of the deed—and if he was right in stating that the fact of the reading over was not to be presumed in law from the attestation of witnesses of the fact of his having subscribed the deed—(in whatever sense you take the words ‘has not been proven’)—if he was right in saying, that in as much as that had not been proven by the user of the deed, the consequence was, that the deeds were upon that ground reducible; but what his opinion would have been, if in point of law he had thought that the burden was upon those who quarrelled the
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My Lords, the Lord Ordinary then goes on to state this note:—
“It is proper for the Lord Ordinary to explain in a note why he has not taken notice in this interlocutor of the separate objection to the deeds under reduction, on which a great deal of argument is bestowed in the memorial, founded on the allegation that the late Earl of Fife did not acknowledge his subscription to George Wilson, the instrumentary witness who was not present when the subscription was adhibited. The Lord Ordinary's opinion on this point is, that the presumption of the law is, in this particular case, in favour of the deeds; but as it has been established by the verdict that the granter of the deeds was incapable of reading any writing, and could not discover whether paper was written upon or not,—and as it has also been established by the verdict that the Earl put his name to the deeds in presence of one only of the instrumentary witnesses, so that the acknowledgment of his subscription to the other instrumentary witness, which is presumed to have been made, must have been made by a person who could not see the subscriptions (upwards of 160 in number) intended to be acknowledged by him, the Lord Ordinary thinks that the manner in which the subscriptions are attested, gives rise to an important objection against the validity of the deeds. If the verdict had established that the deeds remained in the actual personal possession of the granter till after the time when the acknowledgment of the subscriptions may have been made, the objection alluded to would have been the less important. If, again, the verdict had borne that the deeds were taken out of Lord Fife's hands immediately after the subscriptions were written, and before his Lordship had an opportunity of meeting with Mr. Wilson, and of acknowledging his subscription to him, the objection to the attestation of the subscriptions would have appeared more formidable, if not decisive. In referring to the case of Coutts against Straiton, Lord Bankton makes an important observation in a passage not noticed in the memorials.”
My Lords, there was a representation against this interlocutor, and then the Lord Ordinary, “in respect of the great importance of this case in point of law, and that although the opinion expressed by the Lord Ordinary in the interlocutor represented against remains unaltered, yet it will be more convenient for the Court, and more for the advantage of the parties, that the whole cause should be stated in one paper on each side, than that mutual petitions should be given in, which might be followed by two sets of answers, makes avizandum with the cause to the Lords of the Second Division; and ordains the parties to prepare, print, and box informations.” Then he pronounced an interlocutor which related only to the preparing, printing, and boxing informations.
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My Lords, the matter came before the Cpurt afterwards, and they were of opinion, upon the whole—some for one reason, and some for another reason—that the deeds should be reduced. They give different reasons for the reduction of the deeds, and I think they give reasons which it is extremely difficult to reconcile to each other; and, upon the whole, I believe I may venture to represent them very much thus to your Lordships: One doctrine which is sought to be maintained is, that a blind man is a person who, according to the acts of the Scotish Parliament, cannot subscribe by testamentary witnesses; and if that doctrine be true, there is an end of the question. They say that he ought to have executed by notaries and witnesses; and if I understand the opinions that have been laid before your Lordships in what are called ‘Notes of the ‘Judges’ Opinions,’ I think I may represent to your Lordships, that with respect to the executing by subscription, Lord Craigie and the Lord Justice-Clerk were of opinion that be could not execute by subscription: that Lord Glenlee, and Lord Robertson, and Lord Bannatyne were of opinion that he could execute by subscription: that with respect to reading, all of them, I think, held that reading was not a statutory solemnity. My Lords, I see that a distinction is taken in the book of a very learned writer—I mean Mr. Bell—between a statutory solemnity and a consuetudinary solemnity, which being interpreted, I should state myself thus:—That a consuetudinary solemnity is required by common law, and is not required by the statute law; but still that which is required by the common law must be as much attended to as if it was required by statute; but I think they are all of opinion, that though it may be a solemnity, it is not a statutory solemnity. Then with respect to the necessity of proving reading where the party is proved to be blind, Lord Glenlee, Lord Robertson, and Lord Bannatyne are of opinion that when the party is proved to be blind, the reading must be proved; and the Lord Justice-Clerk seems to be of opinion also, that if he could subscribe,—that is to say, if the statute does not consider a blind man as a man who cannot write, which it is his opinion that it does,—but if the statute does not consider a blind man as a man who cannot write, and if therefore he could write, the reading must be proved; but he is not very decided, I think, in the opinion which he gives, whether the reading must be proved or not. Lord Craigie is clearly of opinion, that if he could subscribe, according to the true intent and meaning of the statutes, it was not necessary to prove that they were read to him; and with respect to another question, whether it was necessary that they should be read to him at the time of subscribing, there is great difference of opinion among the Judges. I have not collected the opinion of each exactly as to that point; but there is great difference of opinion as to the fact, whether they must or must not be read at the time of subscribing.
My Lords, with respect to the question upon whom the onus probandi is of reading in case of a blind man, Lord Glenlee, Lord Robertson, and, as it seems to me, Lord Justice-Clerk, are of opinion that it is upon the defender. Lord Craigie is of opinion that if the party
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My Lords, with respect to the question upon whom the proof of acknowledgment lies, the pursuer, as I collect the opinions, is called upon to prove the negative by Lord Glenlee, Lord Bannatyne, and Lord Craigie, if the party could subscribe. The Lord Justice-Clerk and Lord Robertson state considerable doubts upon the subject. However, it does appear, that taking all these different opinions together, in order to determine whether, on all the grounds taken together, it could be determined that those were or were not the deeds of the late Lord Fife, some of the Judges so holding for one reason, some so holding for another reason, they find, as I understand the case—(if I am wrong in that, I shall be glad now to be set right, and beg I may be set right)—that the reasons of reduction of the trust-disposition and deed of entail—that is, of the deeds of October—are good; but the interlocutors have neither reduced nor supported the deed of alteration of November. And with respect to the deed of alteration of November, either the matter has been altogether overlooked, or it is to be considered as a matter that is sent back to the Lord Ordinary, in order there to be dealt with as there it ought to be. Perhaps, my Lords, it was the intention to send it back to the Lord Ordinary, to be there dealt with as it ought to be dealt with; but here the observation has occurred to me from the beginning of this cause, and which I have never been able to remove from my mind, nor am I now able to remove it from my mind, namely, that the summons here, being a summons of reduction with respect to all the instruments, it should seem to persons whose minds are influenced by the considerations which affect the mind of an English lawyer, that if the deed of alteration of November 1808 was a deed properly executed by Lord Fife, in as much as that is a deed of alteration of the instruments of October 1808, it seems to me a most extraordinary thing that it could be said—(I mean, supposing the statutes themselves, as to the modes of execution, do not sweep away the whole)—but it seems to me a very extraordinary thing that that deed of alteration, which I cannot see was laid before the Jury at all, should not itself be taken to be some evidence that the party who was altering the deed knew something about the contents of the deed that he altered. I should have thought myself it would not have been an improper mode of proceeding to have had an issue directed upon that deed, as well as the other deeds, and to have had it considered what was the effect of that deed. I mean, if the question with respect to the statutes left the Court open to consider what evidence it might afford under the seventh issue, that he had understood the contents of the deeds he executed in October, that
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Your Lordships will see that there are a great many questions you have now to decide. One is, whether this matter has been satisfactorily tried? Another is, supposing it not to have been satisfactorily tried, what course of proceeding is open to you, regard being had to the fact that you are a Court of Appeal, and regard being had to the effect of the two acts of Parliament with respect to the trial by Jury? If your Lordships could be satisfied that it was a wholesome way of proceeding—(I am not now examining whether it is or not)—but if you could be satisfied that it was a wholesome way of proceeding to direct another trial upon the general issue whether those deeds, or each or any of them, were the deeds of Lord Fife? I am afraid that if you sent it down in that shape, the consequence unquestionably would be, that, with all the differences of opinion which are recorded in the notes with respect to this case, and which, I think, your Lordships cannot but trace in some of the antecedent cases I shall have occasion to observe upon presently, in all probability the consequence would be, that the issue being so directed, some such directions would be given upon the trial of that issue as would lead to bills of exceptions, and those bills of exceptions would get to the Court of Session upon those matters which would be matter of such differences of opinion; and that difference of opinion would bring the cause back again, in all human probability, to this House, in order to have those doctrines of law which would be to be agitated, first, in the Jury Court; secondly, by the bill of exceptions; and, thirdly, reconsidered here with as little of influence from the prior decision as they influence the consideration of the case now before your Lordships: Therefore, first of all, if it is right that you should—(with reference to which I will say nothing to-day)—if it be right you should have this more satisfactorily tried, the first question will be, whether you can take that course consistently with the two acts of Parliament? and, secondly, whether, if you can take that course consistently with the two acts of Parliament, it would be right for you, by certain findings, prefacing the direction of such an issue, to state what are the opinions of this House with respect to many of those doctrines which have been discussed in the Courts below; and that is a consideration which also must be attended to in another point of view, namely, that if it is wholesome and competent for you so to act, you will have to consider how far the matters which would be the subject-matter of other findings have, or have not, already met with discussions in the Court below. All these are certainly open to very serious questions.
My Lords, upon the question itself, whether a blind man can execute by subscription—if it were thought fit to have what the Scotish Courts call a comparatio literarum—if the writing be of consequence, it might be of importance to have your Lordships' roll of Parliament sent down, because the signature of Lord Fife, almost immediately before this, is almost
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My Lords, what is the law with respect to the execution of an instrument by a blind man? If the Scotish statutes do not in terms decide that, I think you can hardly enter into that question satisfactorily, with out looking a little to what is the law in other countries; for though the law of England is not the law of Scotland—though the Roman law is not the law either of England or Scotland with respect to this point, yet the doctrines of law are to be found in the law of England, and in the Roman law, so far as they are doctrines founded on good sense. When you are considering what is the law of Scotland, if you cannot find it in the consuetudinary law before the statutes, or cannot find the law as dictated by the statutes, I say that then the law of other countries is to be looked at with reference to that subject. It is astonishing how very little is to be found in the law of Scotland upon the subject;—it is astonishing how very little is to be found in the law of England upon the subject;—and it is quite clear, that neither by the law of England, nor by the law of Scotland, can it be contended that all the cautions which were required by the Roman law have ever been required.
With respect to the law of England, you will find that in the law relating to real estate, or the law relating to personal estate, very little is to be found in our books. With respect to the law relating to real estate, Blackstone appears to me to have drawn this as a conclusion from what he finds upon this subject:—
“I proceed now to the fifth requisite for making a good deed—the reading of it. This is necessary wherever any of the parties desire it; and if it be not done on his request, the deed is void as to him. If he can, he should read it himself; if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void, at least for so much as is misrecited, unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party.”
My Lords, the material expressions here are—
“This is necessary wherever any of the parties desires it; and if it be not done on his request, the deed is void as to him. If he can, he should read it himself; if he be blind or illiterate, another must read it to him.”
Now, your Lordships will permit me to observe upon this passage, that it certainly is not a passage that intimates any necessity for those persons reading it to him who arc the subscribing witnesses. It may be a caution, and an extremely wise caution, to do so, but that is not required by the doctrine laid down in this passage; nor am I aware, as an English lawyer, that if it could be proved by other evidence that he perfectly knew the contents of the instrument, it would be necessary to prove the precise act of reading in the presence of the subscribing witnesses, because I apprehend that the act of reading is only evidence that he understood it; and though it may be extremely difficult to find other evidence so satisfactory as the act of reading, yet if there was other evidence offered to a Jury satisfactory upon that head, I apprehend they would be perfectly well justified in finding that that was
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“In this case three points were resolved: 1st, That if a man not lettered be bound to make a deed, he is not bound to seal and deliver any writing tendered to him, unless somebody be present who can read the deed to him, if he requires the writing to be read to him; and if the deed be in Latin, French, or other language, (which the party who is to execute the writing doth not understand,) in such case, if the party demands that one should read and interpret the writing to him, and none be present that can read and expound the tenor of the same in that language that the party who is to deliver the deed understands, there the party may well refuse to deliver it: so it is, although the man can read; yet if the deed be indicted in Latin, French, or other such language as the party who is to execute cannot understand, if he demands that the writing be read or expounded to him in such language as he may understand it, and nobody be there to do it, the party may refuse to deliver it.”
There is then a point put, which I confess appears to me to be pretty hard doctrine. A man had read a deed, and required time for counsel to inform him whether the deed was right; but a judgment is stated in which that liberty and that opportunity was refused as that which he was not entitled to.
There is another passage to be found in Piggot's case in Coke's eleventh report, in which Thorpe, Justice, says, (and this is a very material passage,) “Every deed ought to have writing, sealing, and delivery; and when any thing shall pass from them who had not understanding but by hearing only, it ought to be read also; and it is true that he who is not lettered is reputed in law as he who cannot see, but hear only, and all his understanding is by his hearing; and so a man who is lettered and cannot see is, as to this purpose, taken in law as a man not lettered: and therefore if a man is lettered and is blind, if the deed is read to him in other manner, he shall avoid the deed, because all his understanding in such case is by his hearing, as it was resolved in the case of one John Shuter.” Your Lordships will observe, that Thorpe, Justice, does go so far as to state, that when any thing shall pass from a man who understood by hearing only, it ought to be read also. What is to be the evidence that it was read, certainly is quite another matter of consideration.
My Lords, there is another case which is material in the law of England, which I sec they had in Scotland, and in which perhaps it is not much more easy to reconcile what is said by the different Judges in England, than it is to reconcile all that has been said by the different Judges in Scotland on this point, and that is a case to be found in the second volume of Bosanquet and Puller. There “the testator being eighty years of age, and blind, in July 1801 applied to a friend of the name of Davis to make his will, and dictated every word himself, making
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Mr. Justice Rooke holds the will to be good; and he says, “If a fair ground for presuming fraud were laid by the evidence, the circumstance of the testator being blind would most materially strengthen that presumption.” Mr. Justice Chambré says, “This question must be decided by the provisions of the statute of frauds. Now it does not appear that the Legislature, when they passed that statute, had in their contemplation executions of wills by blind men. Testators are generally very averse to have their intended disposition of property made known in their. families before their deaths; and blind men, who stand so much in need of attention from their relatives, would probably be peculiarly averse to it. The remainder of their lives might, in consequence of such disclosures, be rendered completely uncomfortable; at all events they might produce great discord in families. There cannot be a doubt, that if this were an instrument by deed, or any other written engagement, the mere signature of the party, though blind, would be deemed a sufficient execution; and the only thing to be proved would be, that the blind man was imposed upon.” He does not state upon whom that proof lay; but he observes, “In this case that fact is completely established by an unimpeached witness, who took instructions from the mouth of the blind man himself, and wrote them down.” He holds, therefore, that the mere signature of the party, though blind, would be deemed a sufficient execution, and the only thing to be proved would be, that he was imposed upon.
My Lords, with respect to the doctrines of our Courts, it has invariably been held that a blind man cannot execute. Swinburne has held the contrary; but his notion goes a long way towards establishing that the instrument must be read over. Whether he means by that, that there must be direct proof of the reading, or whether he means satisfactory proof that the testator knew the contents, which he might know by its having been read over at a time when there might be no witness to prove the fact, seems to be left open to a doubt from which I have taken some pains in vain to relieve myself.
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My Lords, in this state of things, your Lordships have now to look back to the various cases which were decided before the present case was brought into the Court of Session. It will be impossible for me to go through all those cases in the course of this morning, nor am I equal to the execution of it. One case, however, I will dispose of at this moment, which I can dispose of, not merely from reading the papers, but my recollection of it—I mean Lothian's case. I bad the honour to be counsel in that case; and unless my memory deceives me very much, it is the very case which has so often led me to conceive that it was not quite a good rule in this House to affirm a judgment, without giving the reasons for the affirmance. In that case there were several things relied on to beat down the validity of the instrument. There were points such as there are in the present case; and in the case signed by the counsel there were what may be represented as admissions of very great importance in support of the judgment which has been pronounced—that is, admissions by counsel who signed the case. When it was argued at the Bar, it was argued (unless my memory deceive me) at very great length; but I am perfectly convinced that case was decided—I think it was in 1794, when Lord Loughborough was Chancellor, (but my Lord Thurlow attending,)—it was decided upon satisfactory proof—that is, proof which they thought satisfactory. I believe I argued at the Bar that there was no imposition at all, and I was extremely dissatisfied at their being satisfied; but they thought there was satisfactory proof that Lothian had been imposed upon; and, on looking at the case, it is very difficult to say that there is not some proof that he had been imposed upon. I am confident the case went upon that ground, and was not decided upon the doctrines of law that are involved in the present case.
My Lords, if you look back to the antecedent cases which are stated in the publication of Mr. Bell, a very eminent writer on the Scotch law, we have, according to him, not only the opinions of counsel on some of the points, but the doctrines of the Judges in some of those antecedent cases; and I think I cannot speak without attending to the fact, that I ought never to speak of the Scotch Judges but with respect, when I say, that if you look to the different judgments that are given, you will find there are doctrines laid down by those Judges which they could not themselves maintain afterwards—that there are doctrines which they afterwards disclaimed—and that there is one of the questions which will fall to be decided in this case, which they did not decide.
My Lords, the questions that it will be my duty to trouble your Lordships with on Friday will be, Whether Lord Fife was a man (as Lord Pitmilly says) that was entitled and ought to execute by notaries and witnesses? or whether, on the other hand, because he was blind, he was a person who, within the intent and meaning of these statutes, could not write? That, my Lords, is one point. The next point to be considered will be, Whether, by the law of Scotland, reading is a statutory solemnity? That, I apprehend, must also be decided by looking at the words of these statutes. The next question will be, If it is not a statutory solemnity,
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Having, my Lords, said thus much for this day, I shall, merely for the sake of saving your Lordships' time on Friday, read to your Lordship to-day the statutes which are principally in question. I need not state to your Lordships, that in early times the seal of the party was sufficient evidence of the execution; but in the Parliament of Scotland in 1540 there is a statute which says, (c. 117)— “That na faith be given to evidentes sealed, without subscription of the principal or notar.”—“It is statute and ordained, that because mennis seals pay of adventure be tint, quhairthrow great hurt may be genered to them that awe the samen: and that mennis seales may be feinzied, or put to writinges after their decease, in hurte and prejudice of our Soverain Lord's lieges; that therefore na faith be given in time cumming to ony obligation, bonde, or uther writing under ane scale, without the subscription of him that awe the samen, and witnesse; or else, gif the partie cannot write, with the subscription of ane notar thereto.” The only words here that I apprehend can include a blind person, are, ‘gif the party cannot write.’
My Lords, the next statute is the statute of 1579, which is entituled, “Anent the subscription and inserting of witnesses in obligationis, and utheris writtes of importance.” Your Lordships know that in the law of Scotland there is a perfect distinction as to what are considered as
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My Lords, the only other statute which has been refereed to is the statute of 1681, which does not appear to me to bear very strongly upon this—that is, ‘concerning probative witnesses in writs and executions.’—29th August 1681.—
“Our Soveraign Lord, considering that by the custom introduced when writing was not so ordinary, witnesses insert in writs, although not subscribing, are probative witnesses, and by their forgetfulness may easily disown their being witnesses; for remeid whereof, his Majestie, with advice and consent of the estates of Parliament, doth enact and declare, that only subscribing witnesses in writs to be subscribed by any partie hereafter shall be probative, and not the witnesses insert not subscribing; and that all such writs to be subscribed hereafter, wherein the writter and witnesses are not designed, shall be null, and are not suppliable by condescending upon the writter, or the designation of the writter and witnesses: And it is further statute and declared, 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 warrand to a nottar or nottars to subscribe for him;”
(there is nothing here about ‘writing,’ your Lordships observe,) “and in evidence thereof touch the nottar's pen, or that the did, at the time of the witnesses subscribing, acknowledge his subscription, otherwise the saids witnesses shall be repute and punished as accessorie to forgerie: And seeing writting is now so ordinary, his Majestie, with consent foresaid, doth enact and declare, that no witnesses but subscribing witnesses shall be probative in instruments of seisin,” and various other instruments which are here mentioned, “and that none but subscribing
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Now, my Lords, upon all these statutes together, your Lordships will find the opinions of the Judges both in the present case, and the opinions of the Judges in other cases which have been stated to your Lordships. They have gone the length certainly, in other cases, of holding that the reading to the party was a statutory solemnity, or they call it a solemnity which must be proved by the attesting witnesses; and being proved by the attesting witnesses, one Judge of great eminence, whom I have always heard spoken of during the 20 years I have been concerned in Scotch causes inside the Bar, and the previous time when I was concerned in them outside the Bar—I mean Macqueen—went the length of holding, not only that the attesting witnesses should be witnesses to the attestation, but to the reading; and that the fact that they were witnesses to the reading should be stated in the docquet. It was found out afterwards that that opinion could not be maintained without oversetting many decisions, and that opinion has not been since abided by. Upon the whole, the doctrines with respect to what are proper modes of executing instruments by blind perons, or persons unlettered, your Lordships will find, have shifted from time to time—have been from time to time considered in very different points of view by Scotch Judges—even in this case have been considered very differently by different Judges; and that we are now in this state, namely, that if the situation in which this matter is brought before us allows us to decide what is the law of Scotland not what it was, but what it is—it will become necessary for your Lordships to record your opinions upon these doctrines, that they may be a guide in future. Let me say again what I have often said before, that if any body supposes that I ever have—(I hardly know what word to apply to it)—that I ever have thought of altering the law of Scotland instead of pronouncing the law of Scotland, he is totally and absolutely mistaken. It has fallen to my lot, after great consideration on the points, to find it impossible to agree in some judgments which have been under review here; but if I have mistaken at all, it has not been in attempting to alter the law of Scotland, but in deciding what is the law of Scotland. The forms of that law, I think, might be changed much for the better; and it may be my duty, when measures are brought before your Lordships, to state that they may be changed much for the better in point of substance and certainty; but when I am considering questions, not as one of your Lordships' House sitting in Legislature, but sitting here as a Judge, I hold it to be my bounden duty to deliver the opinion which I deliberately form upon the state of the law, as I conceive it to stand. I always regret if my view of it differs from those opinions for which I have a very great
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My Lords, I will, with your Lordships' permission, proceed on Friday morning to examine the different opinions which have been given, and which are to be found in the books upon the subject, and then to make some observations upon the judgment to be pronounced by your Lordships, which I hope will close the trouble which I shall have to give to your Lordships.—Adjourned.
My Lords, the first verdict is, “that James Earl of Fife, at the date of the deeds under reduction, was not totally blind, though he could scarcely distinguish between light and darkness; that he was at that time incapable of reading any writing, written instrument, or printed book; that he could not at that time discover whether a paper was written upon or not.” Now it seems to me, that with respect to that finding, whether it expresses so much or not, is not very material, but that we may safely conclude that he was blind. If your Lordships should not think you are justified in determining that he was totally blind, still, with regard to such a case as that under your Lordships' consideration, it will be very much in the same state as if he was blind, because it has found that he was incapable of reading.
Then the next issue was this, “Whether the deeds were read over to the Earl previous to the Earl's name being put thereto, and if so, in presence of whom; and if read over to the Earl, whether they were all or any of them read to him at one and the same time, or at different times; and if at different times, whether they were deposited and kept in the room in which they were read, during the whole period which elapsed from the commencement of the reading till the name of the Earl was put to them as aforesaid, or where they were deposited?” The return to this finding is this, “That the deeds were read over, previous
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With respect to the third issue, they find “that the Earl put his name to the deeds by feeling for the finger or fingers of another person on the spot for signature, and was no otherwise assisted than as above described.” As to the fourth issue, they find that the said Earl put his ‘name to the deeds at one and the same time,’ or, as they would express it in the text-books, unico contextu.
With respect to the fifth issue,—Whether the Earl put his name to “the deeds under reduction in presence of the two instruroentary witnesses, or either of them, or did acknowledge his subscription to them or either of them, or at what period he made such acknowledgment,”—the verdict finds, “that he did put his name to the deeds under reduction in presence of one instrumentary witness, viz. Alexander Forteith Williamson; but it is not proven that the Earl did acknowledge bis subscription to George Wilson, the other instrumentary witness.” My Lords, I pray your Lordships' attention to these words:
“But it is not proven that the Earl did acknowledge his subscription to George Wilson, the other instrumentary witness.”
And I take leave to call your Lordships' attention again to those words, which I humbly requested might be given the other day, because hardly any thing said here fails of travelling across the Tweed, and of being very much misrepresented elsewhere—“It is not proven that the Earl did acknowledge his subscription to George Wilson, the other instrumentary witness.” —Now upon that I observe with the utmost confidence, that if a Jury in this country were to return a verdict in these words, if the question addressed to them was, whether it had been proven that he did so and so, they would have been very well entitled to return a verdict in these words, that it had not been proven; but if the question put to them was, whether he had acknowledged his subscription, they would have returned that he did not acknowledge his subscription; for whatever is not proved is taken not to exist; and it seems not improper, the first time we have a case here of a finding of a
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My Lords, the sixth issue was this:—
“Whether the Earl was, until the dates of the deeds under reduction, or at a later period, a man remarkably attentive to, and in the use of transacting every sort of business connected with his estates, and in the practice and habit of executing, and in fact did execute, deeds of all sorts connected with his own affairs, by subscribing the same with his own hand, and without the intervention of notaries?”
The inquiry made in this issue is an inquiry that perhaps has not a direct and immediate connexion with the question which was before the Court, and is now before your Lordships, unless it is to be taken in the way which I am about to point out to your Lordships, that issue being found in the affirmative. The finding is, “That the Earl was in the practice and habit of executing, and in fact did execute, deeds of all sorts connected with his own affairs, by subscribing the same with his own hand, and without the intervention of notaries.” That is a fact which must convey to your Lordships, as far as I can look at that fact, that it may be of great importance what is to be the decision of the present question; because, if the fact be that the subscription of the Earl of Fife, in the manner in which that subscription is made here, is not available to give efficiency to the deed, then you are to recollect that this person having been for a long period of years very much in the same state as he was at the time he executed those deeds, on the same ground on which you deny validity to these instruments, you must deny validity to many other acts of the Noble Lord. To what extent that might go, one should not very much have inquired into, unless it had been thought necessary to make that inquiry in directing these issues; but it is of some degree of importance, I think, when your Lordships come to look at the cases which have been decided in the Court of Session—in some of which it was held that the reading over was a solemnity—and in others in which it was held that it must be noted in the docquet that the deed was read over; and when you call to mind that by and by, when it was found that that holding would destroy a great many deeds executed by a nobleman who was blind—I mean the late Duke of Montrose—that was a doctrine the Court of Session did not think fit to abide by. It is a question whether deeds, not only of the Earl of Fife, but deeds of many others, executed under the advice of lawyers,
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My Lords, then follows the seventh issue, and upon that seventh issue the finding is this:
“That the only means which the Earl took to ascertain that the deeds under reduction were conform to the scrolls of deeds prepared by his agents under his special directions, were his having heard the said deeds read over to him.”
So that the Jury who first tried this, expressly assent that he had had the deeds read over to him; and upon this seventh issue no new trial was granted. The verdict, therefore, of the first Jury upon that fact is no otherwise disturbed than it can be taken to be disturbed by inference drawn from the finding upon the new trial of the second issue. I have before stated to your Lordships what the second issue was upon the motion for the new trial. The Jury found, in terms the exact meaning of which I certainly am not sufficiently informed of, but which I should hold to amount to very little indeed as matter of finding, if it were on an English record—“that it has not been proven that the deeds under reduction were read over to the Earl of Fife, previous to the Earl's name being put thereto.” This is certainly a negative finding by this Jury, and it is in direct contradiction to what the former Jury had found upon the trial of the seventh issue. It is impossible to state that they are consistent with each other; and it will be for your Lordships to consider whether you can be satisfied that, there having been this latter trial, you are called upon to pay any attention whatever to what is found upon the seventh issue on the former trial.
My Lords, such being the state of the facts, I will put your Lordships in mind again of Lord Pitmilly's interlocutor, after discussion on the three principal points of the objection to the deeds, namely, “First, That they were not, as the law requires where the granter of a deed is blind, attested by two notaries and four witnesses, with the usual formalities that are observed when deeds are executed in that form. Secondly, That the deeds were not, as the law requires where the granter of a deed is blind, read over to Lord Fife before signing; and there is no evidence that he was informed of the contents of those deeds. Thirdly, That the deeds were not executed in terms of the act 1681, in regard that one of the two pretended instrumentary witnesses did not; as the act requires, either see the granter subscribe, or hear him acknowledge his subscription,”—as to which the finding upon the issue is, that it was not proven that he did so; and that opens to a question which I shortly adverted to the other day, namely, upon whom, according to the law, the onus probandi is, that the Earl did acknowledge his subscription? Whether the instrument was in that state in which the law of Scotland would consider it as a probative instrument, to have faith given to it, until those who sought to reduce it proved that that faith ought not to be given; or whether, on the other hand, according to the law of Scotland,
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My Lords, when this case came before Lord Pitmilly, his Lordship, whose authority certainly is very high, stated as a doctrine of law, and he finds, “that a person about to execute a deed of importance, who, at the time of the execution of it, is, in the words of the verdict in this case, not totally blind, though he can scarcely distinguish between light and darkness, and is incapable of reading any writing, written instrument, or printed book, and cannot discover whether a paper was written on or not, and who can only put his name to the deed by feeling for the finger or fingers of another person on the spot for signature, is not only entitled in law, but ought to execute the deed by means of notaries and witnesses, in terms of the act 1579, c. 80.” Your Lordships will permit me to point out to you, that here are two propositions in fact brought forward in this finding,—the one, that a person in his circumstances is entitled in law to execute the deed by means of notaries and witnesses, in terms of the act of 1579, c. 80; and if the question were now only, whether he was entitled in law so to do, the necessary inquiry would be, whether the act of 1579 does apply to a person in those circumstances, capable of writing and subscribing? With respect to the other proposition, it is not only that he is entitled in law so to execute an instrument, but that he ought so to execute the instrument; and an observation, I think, fell from the Lord Justice-Clerk, which I observe in the notes of the Judges, which appears to my observation quite applicable to the case, namely, that if he ought to execute it so, the finding whether he is entitled to execute it so or not does not signify; because, if he ought so to execute it, he must so execute it in order to give it validity, and then that second proposition, which, in my humble consideration, includes the first, as the Lord Justice-Clerk puts it, brings forward this question, whether that act of 1579 makes it incumbent upon a blind man who can write to subscribe in the mode pointed out? Whether he has executed other deeds or not, may be matter of very useful consideration, if you are considering what the Legislature ought to do; but whether the act of the Legislature, by the statute of 1579, has made a person who is able to write incapable of executing a deed by subscribing, or whether he must, under the exigency of that act, if he means to execute a valid deed, execute it, not by subscription, but by notaries in the presence of four witnesses?
My Lords, the Lord Ordinary, however, goes on further to find, “that there is no sufficient authority in the law of Scotland for concluding that a deed signed by a person in the situation above described in presence of two witnesses in the usual manner,”—that is, by his own subscription,—“is null, or can make no faith, provided the deed be proved to
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Your Lordships here also observe, that the Lord Ordinary says, “that there is no sufficient authority in the law of Scotland for concluding that the deed signed by a person in the situation above described, in the presence of two witnesses in the usual manner, is null, or can make no faith, provided the deed be proved to have been distinctly read over to the granter, in presence of the witnesses, immediately before the subscription is made.” Now, one great defect in this finding (if I may presume to use that expression, meaning only a defect in this sense, that it does not inform my mind sufficiently upon the subject,) is this, that I want to know where there is an authority in the law of Scotland for saying that it shall be bad, unless it is distinctly read over to the granter—and not only unless it is distinctly read over to the granter, but unless it is distinctly read over to the granter in the presence of the attesting witnesses, immediately before the subscription is made. When I say where is the authority? I do not mean to say—far from it—that there are not to be found in the different statements of Judges upon cases that have arisen, the opinions of some, that the deed should be read over to the granter—that it should be read immediately before the execution—that it should be read in the presence of the witnesses. I am very far from saying there is not that species of authority which requires great attention, and is entitled to much respect, considering what has fallen from the lips of Judges who have had these cases to consider; but then I say, there is
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My Lords, the next finding is, “that the fact of a deed subscribed by blind man having been read over to him in presence of the witnesses before subscription, is not a fact which is to be presumed in law, from the attestation of the witnesses to the fact of his having subscribed the deed but that the fact of the reading over must be proved by the user of the deed, when it is disputed.” Your Lordships here then observe, that this finding with respect to the having the deed read over is stated here to be—that this is not a fact which is to be presumed in law from the at testation of witnesses to the fact of his having subscribed the deed. In the first place, this proposition, I apprehend, means to assert that it is solemnity, if not required by the statute, yet absolutely required by some other authority, (which, I apprehend, must be some consuetudinary authority, or the authority of the common law,) that it should be read over. And, secondly, that this proposition is meant to negative the possibility of a blind man sufficiently knowing the contents of an instrument, unless it is so read over—that he cannot know the contents of it in any other way. This, your Lordships see, is quite a distinct proposition from its being read over in the presence of witnesses; for, consistently with this, it might be read over, and the two witnesses then called in to attest the execution; but this lays it down as a proposition that it must have been read over to him, and that, because it must have been read over to him, the person who is to use the deed is to prove that it was read over to him. That likewise is pregnant with another position, which is, that though the deed should be ex facie probative, yet it is necessary that the person who produces that deed, ex facie probative, shall prove something else, in order to give it faith in the first instance, and that it is upon the user of the deed, and not upon the person who is seeking to reduce the deed, to show that the reading which was necessary was attended to, and that the instrument was read to the party.
Then, my Lords, he goes on further to state, “that it has been estabfished by the verdict of the Jury on the second trial, that it has not been proven that the deeds under reduction were read over to the Earl of Fife previous to the Earl's name being put thereto.” Now, as Lord Pitmilly here finds that it has not been proven that the deeds under reduction were read over to the Earl of Fife previous to the Earl's name being put thereto, nothing can be stated with more propriety—(if I may thus presume to comment upon the propriety or impropriety of the findings of any learned Judge)—nothing can be stated with more propriety than this, when that learned Judge had, in the finding immediately preceding this, stated that the onus probandi that the deed was read over
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Then follows, my Lords, what I read the other day, which I will state again, that the interlocutor of the Lords of Session “reduces the trust-disposition and the deed of entail, and remits to the Lord Ordinary to hear the parties on the other conclusions of the libel, and to do thereanent as he shall see cause.” Now, I repeat the observation which I took the liberty to make the other day upon this, by saying that the summons in this case not only calls for a reduction of the trust-disposition and the deed of entail, but it likewise calls for a reduction of the deed of November 1808, (that deed being a deed which alters the instruments of October 1808, those instruments which are here called the trust-disposition and the deed of entail); the latter instrument certainly not being, if I recollect it rightly, an instrument of conveyance, but being nevertheless an instrument professing to make an alteration in the former instruments; and if it is to be considered as referred back to the Lord Ordinary to do what he may think fit and just to be done in reference to this deed of November 1808, it being then to be concluded, I suppose, that because the deeds of October 1808 are thus reduced, he is then, ex consequentia, to reduce the deed of November 1808. But then it becomes a question, Whether that deed of November 1808 is not a very material deed indeed, with reference to the deeds of October 1808, unless you are to say that it is of absolute necessity that the deeds of October 1808 should have been read over to the testator in the presence of the witnesses, because he was blind; or should have been executed by notaries, with the attestation of witnesses, because he was blind; and in either way of putting it, it will become necessary to pay some attention to that deed of November 1808, as evidence in the cause, both as evidence with regard to the validity of the instruments of October 1808, provided you make out that there was a sufficient knowledge of the contents in the person executing those instruments, and also for another reason, that that deed might have been good evidence on the trial of the issues, in which it appears to me, as far as we are informed, never to have been spoken of. If I am wrong in that, I should be glad to have it stated now, but I cannot find that it was. I am not now on the question to whom it is to be imputed that it was not produced and acted upon before the Jury; but I do not understand it to have been brought forward in evidence in any way. If I mistake that fact, I consider that a circumstance of so much importance, I should be glad to be corrected in it by those who know more accurately how the fact was.
My Lords, it was not my intention to say one word more than I have said to your Lordships about the Roman law, or the law of England; I will say but one word, and that is only to repeat, that it is impossible to say that the deeds of a blind man in Scotland are required either by the statute, or by any thing else we have heard of, to be executed in the same
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Now, I will call your Lordships' attention to one statute respecting wills—our statute of frauds, as it is called—it is the 29th of Charles II.—that says, “That all devises shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect.” Now, my Lords, I do not apprehend, that, according to the law of England,—whatever may be to be found in dicta or in judgment, on giving opinions where they have, or where they have not sustained wills,—that if you prove in the case of a blind man that he had signed a deed because he could write, or if you prove that he had signed a deed, because you prove the attestation of his signature by three witnesses, for it is his signature that the statute requires the witnesses to attest; in that case, I should apprehend, primâ facie, that is a very good will; and to illustrate what I have to say upon that, and to show your Lordships the consequence if you do not find that to be a good will, let me refer your Lordships for a single moment to a case which was mentioned the other day from Bosanquet and Puller.—My Lords, that was a case in which the testator, being eighty years old, and blind, in July 1801 applied to a friend of the name of Davis to make his will, and dictated every Word himself, making a devise in favour of the lessor of the plaintiff, who was his stepdaughter, and lived with him, to the disadvantage of the defendant, his son. After the will was written by Davis, the testator went into the room where the lessor of the plaintiff, with other persons, was, and desired Davis to read it over, and then said, Now, Nancy, are you satisfied? Davis then took the paper away with him to get it copied, and when he brought it back “fairly copied, two months afterwards, the testator made an alteration in it;” but he could not by his eyes at all determine whether that paper was the same paper or not, ‘and perfectly understood what he was doing;’—that understanding he could not have by the means of his eyes, for eyes he had none to make use of.—“After the alteration made in the will, it was executed by the testator in the presence of Davis, and the three attesting witnesses named by the testator. The will was not read over in the presence of the three attesting witnesses, before it was signed by the testator, but was merely placed before him in their presence, and executed;”—and this was held to be a very good will of a blind man.
Now, I desire to ask what would have been the case with that will, if doctrines we have heard of were doctrines in our law—it does not signify
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It has now been determined in the case of Yorkstoun v. Grieve, in Scotland, that reading is not a solemnity—that the reading need not be in the docquet; the reading, therefore, the witnesses do not attest, and what the witnesses do not attest cannot be taken to be true by proving the subscription of the witnesses. You will infer that the witnesses saw every thing rightly done which the witnesses are to attest; but if reading is not necessary—if reading is not a solemnity required by the common or the statute law, the witnesses are not to attest it, whatever was the opinion, in Aglianby's case, of many respectable Judges, that the reading must be noted in the docquet of attestation—that has been overruled since;—the reading, therefore, need not be attested in the docquet of attestation; and the consequence of that is, that if reading be a thing necessary to be proved, it is not proved by the mere attestation of the witnesses, who expressly state that they never heard one single word of the will read. Your Lordships see, therefore, that if we were to introduce this rule into the law of England, we should be shaking wills, dispositions, and so on, which have never been held to be subject to any doubt whatever, or to any observation, further than this, viz. that the proof of reading over the will to a blind man is, because a blind man may be so
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Now, my Lords, in looking at the different propositions which have been stated in this finding of Lord Pitmilly, and which I must understand to be affirmed by the Court of Session, I certainly approach the consideration of them with all the fear and apprehension that necessarily belongs, and that ought to belong to, and to affect the mind of a person not very conversant with Scotch law, in dealing with propositions laid down by a Lord Ordinary of very great eminence, and affirmed by Lords of Session of great experience; but I must look at this, not only with reference to the question of law, but how the facts have been established,—whether they have been or not sufficiently established by the verdicts, upon the clear establishment of which facts those legal doctrines have been propounded and stated.
My Lords, in this view of the case, as the question before us must be, Whether we shall stop here and affirm this judgment at once, or whether we shall proceed? I really might say no more at present to your Lordships than this, that I do not find my mind so informed by the verdicts upon these issues, that I can with confidence apply any doctrines to findings expressed as these are, and that, if it is necessary to have the facts fully established, it does appear to me that there must be further investigation with respect to the actual circumstances of this case, and more especially regarding what has or has not passed with reference to this deed of alteration in November 1808. There, my Lords, I might stop, advising your Lordships simply to put it into a course of further inquiry; but, my Lords, I do not think that will be a useful proceeding, and I do not know whether it would not be better at once to affirm the judgment than to stop there; for I am quite sure, that, whether you direct an issue, supposing you can do it under the statutes, or whether you direct the Court of Session to direct another issue, by directing a general issue, always recollecting that where a fact is to be tried under the authority of the Jury Court in Scotland, it is a fact to the trial of which the presiding Judge must apply the law of Scotland with respect to the doctrines generally, and the law of Scotland with respect to evidence; and recollecting that this is a
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Then, my Lords, I look at the case in this point of view:—First, Is it necessary there should be further investigation? Secondly, If it is necessary there should be further investigation, in what form and manner should that investigation be made? And I have looked at this latter question with a great deal of anxiety, for this reason among others: I may mistake the fact, and I have no hesitation in saying I may mistake the fact, as to what have been the points of law that have been already discussed in the Court of Session. Now I mention that for this reason, will your Lordships allow me, after having had experience in these matters as much as, in all probability, I can have, and which certainly has been more than any person who has had to administer justice in Scotch matters ever had, who has presided on your Lordships' Woolsack, taking into account the great number of years in which I was concerned in arguing the cases of Scotch suitors at your Lordships' Bar—But I have always been of opinion (and I take the liberty in the close of life to state it) that there has been a great difficulty in appeals in this view, that you begin with a summons which states a great variety of reasons of reduction; when they come to the end of it in the Court of Session, they say “sustain the reasons of reduction,” It may be that they find, in that language, “sustain the reasons of reduction,” in many many cases, where perhaps one of the very reasons for reducing the deeds so stated in the summons they think a sufficient reason; but if that sufficient reason could not have been established in point of fact, you will find, by looking at the notes of their judgment, that with respect to all the other reasons they did not mean to sustain them;—they either meant to say nothing about them, or in many cases they would have assoilzied the defenders, because they could not have sustained those reasons of reduction.
Now, my Lords, that a practice of that kind does generate a great deal of legal proceeding is to be expected; but I feel my difficulty in so stating it, as to remove the possibility of any suspicion that I am treating the Judges of the Court of Session without that great respect I know to be
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But, my Lords, I must make another observation, and that is, that it has happened that causes have been determined here, some lately, in which, upon looking at the papers upon the table, you found what perfectly satisfied your minds, either that the judgment should be reversed, or that it should be affirmed, or that it should be altered; and you have then stated why you reversed, why you affirmed, and why you altered. No sooner is the judgment pronounced, than you have had it stated, “This is a new view of the case—this proceeds upon a discussion of the doctrine, not one word of which was stated in the Court below;” and undoubtedly, if you are not a Court of original jurisdiction, it is very much to be wished, that all the views of the case on which you proceed should have been first discussed in the Court below, the consequence of which is, that there is a remit made of the cause in some cases:—well, what is the effect of that? Why, my Lords, before the person who has now the honour to address your Lordships is three months older, he has communications made to him that this practice of remitting does occasion
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I am aware there may be very many important cases on the law of Scotland, where the House would remit for its own information; but in those cases where the House would remit for its own information, it remits, because it is a duty to the public to take care, that in matters of Scotch law and Scotch doctrines, if the point is a very material point, it should have the very best information it can possibly have; but that is quite a different thing from stating that such and such a point was not considered below.
My Lords, I have made these observations, because, if your Lordships should be of opinion that there should be any further investigation of these matters, it is not perhaps an improper preface to what I have to say further upon the subject, that I have endeavoured to look to what have been the points which have been argued in the Court below in this case; and unless I mistake what have been the points which have been argued in the Court below in this case, I think the view that may be taken of this case by your Lordships does not go one iota beyond the points which have been so considered in this particular case in discussion in the Courts below.
My Lords, the first point is, is it necessary that a blind man should execute these instruments by two notaries and four witnesses?—and here do not let me be supposed again to speak with disrespect, either of the Court of Session or the Jury Court. My Lords, I know too well how difficult it is, even in this part of the island, where we are very conversant with the proceedings which are to take place before a Jury, when a Court both of Law and Equity is directing its proceedings;I know too well the difficulty of being quite sure that one is quite right in those directions; forbearance of observation, therefore, would peculiarly belong to me upon such a subject; but a man must totally forget every thing which is likely to happen, if he supposes that you can send an issue down to trial in Scotland, and that they should be enabled so to model proceedings
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To be sure, in this country, if the Judges had been of opinion that a man who was blind was a man who could not, within the intent and meaning of this act of Parliament, write, and if there was no dispute whether he was blind or not—if one party said he was blind, and the other party admitted that he was blind, the Court would say, what have we to do but construe the statute? If, on the other hand, they denied that he was so blind—that he, Lord Fife, who had been executing, as the Jury found, all sorts of instruments by writing, was so blind as to be within the intent and meaning of the statutes, a man who could not write, if they denied the fact, you have nothing in the world to do but to try the fact, whether he was so blind as to be blind within the meaning of the word, according to the interpretation of the Scotch law, which would be a proper fact to be tried. But, on the other hand, after that one issue was tried, if the law of Scotland be, that a blind man is a man who cannot write, but who must use the subscription of notaries, and the attestation of four witnesses, in order to give effect to his deed, the moment it was found one way that he was not blind, or the other way that he was blind, there would have been an end of the cause as to that; because then it would follow, that within the intent and meaning of the statute, he was a man who had executed the deed, not by notaries in the presence of four witnesses, but by a subscription of his own, which, though a subscription in writing, was nevertheless not a subscription in that way of putting the case within the intent and meaning of the act of Parliament. In a general issue, all this might have been considered—might have been brought before the Court by bills of exception; and, finally, according to the terms prescribed by the act of Parliament, brought before this House.
Then, my Lords, the first question is,—Is a man blind, as I may state Lord Fife to be—a man who cannot write, within the intent and meaning of these statutes? My Lords, there is another way of putting that. Is he a man, who, before these statutes, would, by the common law of Scotland, have been under a disability upon the subject? I confess I have found no authority for that. On the contrary, that appears to me to have been so little understood, that the case of Coutts v. Straiton, which occurred in 1681, very much about the time of one of these acts, I think, contradicts that idea altogether.
Then the question, my Lords, must arise, first, upon the acts of the Parliament of Scotland. My Lords, the first statute which has been argued upon is the statute of 1540. Previous to that statute, I think, one might state without the authority of the statute itself, that for which it is sufficient authority, that a person might execute a deed, not by subscribing it, (in which case the doctrine about comparatio literarum, and so on, would apply,) but by merely sealing; and I have looked with some degree of diligence, but certainly with no effect, to find out whether there was any difference between a blind man sealing and a man who could see sealing. I can find nothing which leads me to a conclusion upon that, no doctrine laid
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“Item, It is statute and ordainit, that because menys selis may of aventure be tint, quhairthrow gritt hurt may be generatt to them that aw the samin, and that mennis seales be feinzicd, or put to writings after their deceis, in hurt and prejudice of our Soveraine Lorde's lieges: That therfore na faith be given in tyme cuming to any obligation, band, or other writing under ane sele, without subscription of him that awe the samin and witnesses, or ellis, gif the party cannot write, with the subscription of ane notar thairto.”
Now, my Lords, upon the subject of the party signing, you will find a case, which I cannot immediately refer to, (being without my glasses, very much in the case of the late Lord Fife at this moment,) in which it is expressly stated by one of the Judges, that the statute makes no distinction between a blind man and a man who can see, provided he can write, and then he lays down this doctrine:—
“We never can carry the requisites of the statutes further than the statutes themselves direct; the act is silent as to this particular; therefore, we should be making a new requisite which the statute does not make, and that we Judges have no authority to do.”
Now, my Lords, I am ready to agree, and it is for that reason I have so repeatedly desired to be corrected if I am incorrect—I am ready to agree, that if it can be shown by decision before this statute, or by decision subsequent to this statute, that a blind man was to be taken as a man incapable—if it can be shown that before this statute there was a difference between the execution of blind men and men who could see, so as to raise the distinction that one should be considered as not being able to write, and another should be considered as a man who could write, notwithstanding he could not see;—if that distinction can be shown, it will certainly go a great way to authorize one to say that when the statutes spoke of one who could not write, they spoke of a person who might be distinguished as a blind person, able to write, and yet not able to write in what I may call the common law of Scotland; and a person who being able to see was to be taken as a person who could write.
My Lords, the next statute, and the only other of any importance, is that which discontinues the custom of writing deeds by pasting the sheets of paper one to another, and allows the writing book-wise; for there are decisions upon that statute which go to what is considered to be requisite to be in the attestation, and what they do not consider as requisite to be in the attestation. There will be found in Mr. Bell's book a long discussion upon what are to be noted in the attestation of deeds that are written book-wise. Your Lordships recollect the statute requires that a deed written book-wise shall be signed on every page of it; and questions have arisen how far the fact of signing on every page is to be matter in the attestation, and that likewise is to be decided upon the question, what is a statutory solemnity?
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Then, my Lords, the next statute which has been considered material is the statute of 1681. Now, there does not appear to me to be in that statute one single word upon this subject. “Considering, that by the custom introduced when writing was not so ordinary;” so that this statute of 1681 seems, as matter of history, to show that when the statute of 1540 was made, writing was not an ordinary thing among the lieges of Scotland. They can write now extremely well; but that does not appear to have been the case in the year 1540. “Witnesses insert in writs, although not subscribing, are probative witnesses, and by their forgetfulness may easily disown their being witnesses;”—and it proceeds, “for remeid whereof, it is enacted and declared, that only subscribing witnesses in writs to be subscribed by any party hereafter shall be probative, and not the witnesses insert not subscribing; and that all such writs to be subscribed hereafter, wherein the writer and witnesses are not designed, shall be null, and are not suppliable by condescending upon the writer, or the designation of the writer and witnesses: And it is further statuted and declared, that no witness shall subscribe as a witness to any party's subscription unless he then knew that party and saw him subscribe, or saw or heard him give warrant to a notary or notaries to subscribe for him, and in evidence thereof touch the notar's pen; or that the partie did, at the time of the witnesses subscribing, acknowledge his subscription.” Your Lordships observe these words:
“That the parties did, at the time of the witnesses subscribing, acknowledge his subscription, otherwise the said witnesses shall be repute and punished as accessary to forgery.”
Now, upon reading this, it does not appear to me that there is one word in it which can alter the state of the question upon the construction of the original statute of 1579; and it does appear to me, I confess, on looking at the English statutes and the Scotish statutes, that the subscription is the thing which the party is to attest; and it is very clear that if a person can see, the subscription is the thing he is to attest, and because the party can see, and seeing—provided, I mean, he is a lettered man—can read, there is no doubt that the presumption of law is that he knows the import. The question is, as it seems to me, looking to this upon the authorities, whether reading in the presence of the witnesses, or reading in the case of a blind man, is that which, if it cannot be presumed, can or cannot be proved by any thing but the actual proof of the fact of reading—that is to say, if it can be proved, however satisfactorily, that a blind person executed an instrument who had been or who had not been, but particularly who had been in the habit of subscribing instruments though he was blind, and multitudes of instruments which he fully understood, though it could be proved that not one of them was read to him;—yet if the Jury could be satisfied that he perfectly understood what he was executing, all the proof is short of giving validity to those instruments, unless there is a specific proof by some one that that instrument had been read over to him. Now, my Lords, I do not mean to say that on looking into the notes in Lothian's case, which I had the honour to argue at the Bar, that there
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My Lords, on looking at the notes of the doctrines of the different Judges whose opinions have been cited in the present case, and which opinions have been laid on your Lordships' table, there is hardly one single point with respect to this case in which they agree. Upon the point, whether subscription of a blind man will do, the majority are of opinion that it will do—that it is sufficient. On the point of reading, the majority are of opinion that the instrument must be read; but then as to whether the instrument must be read in the presence of the witnesses, or whether the instrument need not be read in the presence of the witnesses, provided it is read over in any other person's presence, on that point also they differ most materially; and as to whether reading is a solemnity within the statute, a large majority of them are of opinion that it is not a solemnity within the statute;—and there again, if you are to look to the opinions of the Judges in order to determine what is the law upon the subject, you have not only to go through that unhappy conflict which belongs to the question, which is the best opinion of modern Judges; but if you look to the opinions of the Judges in Aglianby's case, you will find there was a difference of opinion among the Judges. Lord Justice-Clerk, I recollect, (I do not mean the present Lord Justice-Clerk, but the Lord Justice-Clerk at the period of the case of Aglianby,) was of opinion the reading must be mentioned in the docquet.
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The question, I apprehend, then, with respect to this reading, really comes to this—Is reading a solemnity, or is it not? If it be a solemnity, nothing can dispense with it. If you can show that in the common law it was necessary in the case of a blind man, I am then ready to admit that these statutes ought not to affect that doctrine of the common law one way or the other, for they do not take away the necessity of applying the common law by any means; but, on the other hand, if reading be not a solemnity—if it be nothing more than that which a cautious man would endeavour to obtain the effect of, if the testator thought proper to have it read in their presence—if reading is one species of evidence, and only one species of evidence, and the want of that species of evidence be a most important circumstance—perhaps I might state it the most important which can be stated, when you are inquiring whether a party knew what he was doing, or whether, on the other hand, he has been imposed upon—if it is to be put in that way, let the difficulty be what it may of establishing a will where reading is not proved—if it can be shown by other means that the testator knew what he was doing, I apprehend that evidence which produces that satisfaction in the minds of the Jury, is just as good evidence to support that will as the specific fact of reading.
But, my Lords, we must go beyond that, adverting again to this, that the findings upon these Juries are inconsistent upon that fact; for one Jury says, yes, they were read over—and another Jury says, no, they were not read over; and you have those inconsistent findings to act upon. Another question arises, upon whom lies the necessity of proving that there was reading? Provided reading be not a solemnity noticed in the attestation of witnesses, but be a circumstance so absolutely essential, that unless it is proved that that circumstance is one part of the evidence in the cause, the instrument ought not to be available. Now, here is again a very great difference of opinion; some of the Judges say it is upon those who seek to reduce the instrument to show that that did not take place,—while others of them say, in the language of Lord Pitmilly, that the user of the deed must prove that. Now, my Lords, I cannot help thinking, after all the reflection I have thrown upon this subject, that the question will take this turn. If the subscription of a blind man be a good subscription, because he is to be taken to be a man who can
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Then we have a difference of opinion among the Judges. Some of them think this a probative writ, and that the onus probandi lies upon those who seek to reduce it to prove that it was not read. If reading be not a statutory solemnity, but if it be a circumstance of evidence, if it be a fact, without which you will not give effect to a probative writ, the question is, upon whom is the burden to lie that it was or was not read? Why, my Lords, it is said this is proveable by evidence. It is proveable by evidence; but the misfortune of the case is this, and a circumstance which deserves most serious attention with respect to instruments, if you put it upon those who seek to reduce the deed to prove the negative, you are putting that upon them which they may not be able to establish. In the first place, they may be able to establish that by evidence which some of the Judges say, and which others deny to be necessary, that it was not read in the presence of the attesting witnesses. But, my Lords, put it the other way, what is to be the case? For instance, if it be the law that it need not be read in the presence of the attesting witnesses, but that it must be read in the presence of somebody or other, what is to be the case with respect to a blind man? Now I will put this case to your Lordships: I will suppose, for instance, that Providence thought fit to afflict me towards the close of my life with blindness; that notwithstanding I could write extremely well, and so forth; and that having lived throughout now a very long life on terms of intimacy and affection with my right honourable friend who sits at the other end of the table, and I had Scotch property to dispose of, and was a Scotchman; that I was to say to him, “You know what provisions I have made for my respective children hitherto. You know what I have done for A., you know what I have not done for B., you know what I have done for the person who may be left a widow, and so on; I do not like that strangers should know what I have done, or contemplate to do. Will you, therefore, be so good as to make the scroll of my will?” My noble friend brings it to me, and I, in acting upon it, act very much upon the confidence I have in that he has executed my purposes. I will take it, a great deal more passes between the two individuals, one of whom I have had the honour of naming, than probably would pass between them; for, as an Englishman making an English will,
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“Why should I? I repose confidence in you; you tell me you have given such a one so and so, and have given so and so, and put in, God knows how many provisions.”
I might turn round—and it is not a very unimportant anecdote, that I heard Lord Mansfield say that he had scarcely ever read a deed that he executed in his life—I suppose that referred to his English deeds; what he did as to his Scotch deeds I cannot tell;—but I will suppose the noble Lord reads it over;—that after the reading it over to me, I desire him to be so good as to keep it till a particular day when I mean to execute it;—he brings it, and I execute it before three witnesses who know nothing of the contents of it, as to which it is my intention that they should know nothing of the contents of it, and I subscribe it, and they attest my subscription, for that is all they attest. The noble Lord predeceases me, which I hope will not be the case. What is to be proved? Those who are to claim after my death can only prove it was read over by giving other evidence to satisfy the Jury that I knew the contents of it, and I really do not know how more can be done. It is stated on the one hand, that blind men may be liable to imposition, which they certainly may, and so may men who see, though not so liable to imposition; and when it is stated on the one hand, that they may be liable to that sort of imposition, let it be admitted on the other hand, that if all this is required of them, nobody can tell whether that which he intends will have validity or not, and how long it will have validity. In some of the papers in this cause, they say, to be sure, when it is an old instrument, you are to presume all this;—but I do not know how to get at that; if reading be a solemnity, the reading must be attested, and it must be in the attestation clause that it was read over. If all the witnesses were to die, the moment they were dead all they had attested would be presumed to be read, because they had attested it; but if the reading need be in the presence of the witnesses, or it must be in the presence of the witnesses, but need not be part of the attestation, I do not know how it is to be proved, unless you will take for granted without any evidence whatever that it was so. If you will take for granted, without any evidence whatever that it was so, if there be evidence satisfactory to the minds of the Jury who are to try the fact whether it was his deed or not, validity may be given to the instrument—so it appears to me.
But, my Lords, to return,—the question will be, whether, if the subscription of a blind man is a subscription according to the law of Scotland, and there is an attestation such as the law of Scotland requires to an instrument which can be subscribed by the party, whether that instrument is not therefore in itself probative, and whether the onus of showing that the person was imposed upon, or the onus of showing whether it was not read, (if that is to be taken as conclusive evidence,) is not to be thrown upon those who quarrel with the instrument. You have authority both ways, and I confess, on the best consideration I can give
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My Lords, there are other points in the case. Upon the whole, it comes to this, (for I can put it in no other way,) Are you satisfied, upon these imperfect and inconsistent findings, and upon the doctrines stated in these interlocutors, that these interlocutors of the Court of Session ought to be affirmed as to those two deeds, recollecting what has or has not been done with respect to that instrument of November 1808, and recollecting how important a circumstance it was in our English case, that the testator altered the will, and that the alteration was taken as a circumstance of evidence that he knew what he was about in respect of the will itself—recollecting what has or has not passed with respect to this deed of November 1808—are you or are you not satisfied to close this matter as the Court of Session has closed it, and as the Lord Ordinary may close it, with respect to this instrument of November 1808; or do you or do you not think,—regard being had to the nature of these findings,—that the matter requires further investigation; and if it does require further investigation, what is the form in which you will direct that further investigation to be made, and what issues will you direct on the points requiring that further investigation? Your Lordships will be pleased to consider, whether, amongst all those conflicting doctrines, if a general issue, or one or more special issues, are sent to the Jury Court to be tried, where so much doctrine is involved, you are satisfied that your best mode of proceeding would be to send it to the Jury Court, without any determination before you send it there as to the legal doctrines; or whether you are prepared to make up your minds, after all you have heard in this cause, to state, in the present stage of it, your opinion upon those legal doctrines which have already been discussed in the case, and which you are therefore probably competent to determine?
My Lords, with a view of taking the case in the latter mode, I have endeavoured, with the assistance of a noble and learned Lord, to put upon paper that which I may wish again to consider between this and Monday morning; for nothing can be so important as these findings.—I have put down on paper what are the doctrines which I consider as the doctrines of the Scotch law, meaning again and again to consider, till we finally decide whether that is the proper shape in which to put it; but preparing this, in order to have it before us, in case your Lordships should be disposed to consider it in the view I have taken of the case, will assist your Lordships if you should be so disposed. I have endeavoured, with the concurrence and the assistance of my noble and learned friend, to lay before the House some of those findings, which, I think, must be maintained as part of the Scotch law; and, having done so, I will propose now, with your Lordships leave, that this case be considered further on Monday.
My Lords, I cannot finish what I have taken the liberty to submit to your Lordships, without stating, that I do look upon this as one of the most important cases which we have ever had in this House. I cannot
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My Lords, this case is not only of importance with respect to the individual, but it is of great importance with respect to a class of men as unhappy as any whose interests we have to take care of; I mean those who, by human disease and infirmity, and old age, are rendered unable to protect themselves; it is our duty, as far as the law will allow us, to protect them, and to enable them to make their wills without restrictions which that law does not impose. If the law imposes those restrictions, we must in our judgment apply them; but do not let us take upon ourselves to make restrictions with respect to testamentary dispositions of persons which the law has not applied to persons in that state to which I have now alluded.
Having troubled your Lordships thus far, as far as I am concerned in this matter, I beg, with your Lordships' leave, to postpone the further consideration till Monday morning; at the same time, in a case of this great importance, as the noble and learned Lord has, I know, applied his mind very anxiously to the consideration of it, perhaps it might save your Lordships' time on Monday, if at this moment the noble and learned Lord would be pleased to state what occurs to him.
The instruments in question are impeached by the summons before your Lordships on two grounds;—lst, That the instrument is not a probative instrument, in consequence of the late Earl of Fife being deprived of the means of seeing, being in the situation of a blind person; and, 2dly, That this circumstance induces a suspicion of fraud, which is sufficient
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My Lords, whether the solemnities of law have been complied with or not is to appear upon the face of the instrument; for if, on the face of the instrument, it appears that those solemnities have been complied with, then, I apprehend, it is what in the Scotch law is termed a probative instrument.
Now, my Lords, though an instrument may appear on the face of it to bo a probative instrument, it is yet capable of being impeached,—that is, it may be impeached on this ground, that the instrument, though apparently a probative instrument, was an instrument imposed upon the person who executed the instrument, and that it was therefore an instrument which was a fraud upon that person; and here it must be assumed, that the ground upon which this instrument is sought to be impeached, supposing it to be a probative instrument, is, that it was a fraud upon the Earl of Fife—that the Earl of Fife did not know what he was doing when he subscribed that instrument.
My Lords, with respect to the question, whether a subscription by a blind man who can write is a proper subscription by the law of Scotland, I am strongly impressed with the opinion that it certainly is, and that that is the mode of executing an instrument which the statute intended; for, my Lords, you will see what was the purpose of the statute in requiring subscription, instead of sealing the seal of the party,—being formerly the circumstance by which it was supposed to be the deed of the party. The statute says, the seal may be feigned;—the statute says, the seal, though the true seal of the party, may be affixed after the death of the party; therefore the statute directs subscription by the party. For what purpose can that be, but because the handwriting of the party is a thing of itself incapable of proof, and cannot be put after the death of the party:—the true handwriting could not,—and if it was not the true handwriting, it must be a forgery. My Lords, it is therefore, in my humble judgment, clear that the signature of this instrument by the Earl of Fife was the proper mode in which he was to execute such an instrument; and I am of opinion, that the signature of the Earl of Fife being affixed to that instrument, it was capable of evidence that that was not his signature. Evidence might be brought to prove that it was totally dissimilar from his signature; but there is no pretence of such evidence,—there is no pretence for the supposition that the signature was not the signature of the Earl of Fife; on the contrary, the summons of reduction supposes it to be the signature of the Earl of Fife, and alleges
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Now, my Lords, to what does that all resolve itself, but to a question of fraud, or suspicion that the persons who were then surrounding Lord Fife put before him an instrument which he did not mean to execute, instead of an instrument which he did mean to execute? And that must be. the ground and substance of the charge which is brought against this instrument, that there was put before him an instrument which be did not mean to execute, instead of an instrument which he did mean to execute. Why, my Lords, in the execution, by every man having his sight,—a man who is incapable of understanding the contents of a legal instrument, or a person not learned in the law, the instrument is brought to him, and he is told this instrument is to dispose of his property so and so; he cannot, by his own knowledge, know precisely whether that instrument executes his purpose or not, but can that instrument be avoided on that ground? No. You must presume that he did know the effect and purpose of that instrument, unless it is positively shown that a fraud was practised upon him in that respect. It might be the easiest thing in the world to deceive a man who was making his will. He proposes to devise an estate for life, and to entail the property;—he devises to a man for life to trustees to preserve contingent remainders, and then to the heirs of his body. An unlettered man might suppose that the person to whom he gave the estate for life had only an estate for life, and no longer; whereas the construction of law of that instrument would be giving an estate tail, which would enable him immediately to dispose of the property; therefore, my Lords, it is impossible that, in the execution of any instrument whatsoever that is at all an instrument such as the most ignorant person cannot understand, that there must not be a degree of confidence in the persons who prepare that instrument for execution. Why, my Lords, I am sure for myself I have repeatedly executed instruments without having read those instruments, or hearing them read. As a trustee, that has been my practice. I have the misfortune to be engaged in many trusts; I have desired the deed to be laid before an attorney, whom I trust for that purpose; he reports to me that the instrument is properly prepared, and such a one as I ought as trustee to execute. I execute that deed on the confidence that I repose in that person. Many and many a deed have I executed in that way, without reading over the instrument. Perhaps I inquire particularly what it is that the instrument contains; what it is that I am required to do: but I do not read
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My Lords, I say, in this case, if this deed has the solemnities required by the statute, and is, according to the Scotch law, a probative instrument, those who seek to reduce the instrument must show that there existed some extraneous circumstances, from which it is to be demonstrated that Lord Fife did not mean to execute that instrument. That he meant to execute an instrument cannot be doubted; but then the question is, did he mean to execute that instrument? Now, my Lords, if he did not mean to execute that instrument, it might be because a fraud was practised upon him. I apprehend the law of no country presumes fraud. Fraud is a thing which must be proved; and those who mean to impeach an instrument on the ground of fraud must prove that fraud. It is not the law of one country only, but the law of every country, that fraud must be proved. Statutory regulations are provided to exclude fraud, and if those statutory regulations are not complied with, though there was no fraud, though a man meant to execute the instrument, though he perfectly knew what was contained in the instrument, though he had read it over a hundred and a hundred times, if the statutory solemnities are not complied with, that instrument has no validity in law. Then the necessary conclusion from that is, that if the statutory solemnities are complied with, the instrument, prima facie, is a probative instrument, and is to have faith given to it, until it be shown that it deserves no faith; and there is no ground on which it can be shown that it deserves no faith, but on the supposition that an instrument, different from that which the man intended to execute, was placed before him, and that he was prevailed upon to execute one instrument when he intended to execute another.
Now, my Lords, does it appear in this case, from any thing found by the Jury, or which has been suggested in idea, that Lord Fife meant to execute an instrument different from that which has been laid before your Lordships? It is clear he meant to execute an instrument. If the solemnities required by law are complied with, I say the presumption of law is that he meant to execute that instrument; and it would be most dangerous indeed if it was not the presumption of law that he meant to execute that instrument. It is clear, therefore, to my mind, that whoever attempts to impeach an instrument under such circumstances, the impeachment of that instrument must lie upon the person so seeking to set aside that instrument.
My Lords, it is open to the party seeking to set aside the deed to show that the granter did not mean to be party to such a deed as has been executed; it may be shown that he was not a party to the deed: that may be proved, or may be extracted from the witnesses; they may perhaps be led, on examination, to admit the fraud—to admit, for instance, that the instrument Lord Fife executed was a different instrument from that he
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Then, my Lords, consider the effect of the subsequent deed of November altering the trust-deed. My Lords, is there any doubt, that if he executed that instrument as a probative instrument, and it was a probative instrument, that is most important to show that no fraud was practised upon him in respect of the instrument. When a man says, the instrument I have executed does not convey that which is now my meaning upon the subject, can there be a stronger presumption that he knew what was the meaning of the instrument he had executed? He executes an instrument by which he alters a part of the disposition; the second instrument was executed and attested, and if he knew what he was about when he executed that, can he have executed it without a confidence in his own mind that the instrument he had previously executed was an instrument prepared according to his intentions? My Lords, I conceive, therefore, that the law of Scotland, and the law of every country, must, in case of fraud, proceed exactly on the same ground. Fraud is every where the same. The provisions that are made by statute to prevent fraud are positive provisions, and, whether fraud existed or not, must be complied with. But if those provisions are complied with, then, if fraud is imputed to an instrument, with respect to which those provisions are complied with, the presumption must be in favour of the deed; and the presumption being in favour of the deed, and the evidence of any fact which would tend to impeach the deed must be produced by those who seek to set it aside.
My Lords, when we look in this case to the finding of the Jury, we find that on the trial of the first issues that were tried, the Jury expressly found that the deed was read over to the Earl of Fife; they expressly found that on another of the issues which had the same tendency. A new trial was granted, and it was granted on this ground, that only one witness proved the fact that it was read over to him. That was proved by a witness who deposed that it was read over in the presence of that witness and another person; but that other person, it seems, stands in a situation with respect to the instrument, (being one of the trustees of the trust-disposition,) that he is not capable of being examined as a witness;—the single evidence of one witness is not sufficient, in the law of Scotland, to establish a fact. Now, my Lords, though the evidence of one
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My Lords, let us advert a little to what must have been the state of things before this act. Why, my Lords, almost all deeds were formerly in Latin, executed by persons who did not understand the Latin language; even if they understood the operation of law upon the words used, they did not understand the Latin language. My Lords, we find it said that if a question arises, whether a man is required to execute a deed which is presented to him, if the deed is in Latin, he has a right to have it explained to him before he is compelled to execute it; it must be explained to the party if it is in Latin, because he is not to be supposed to understand the Latin language: but what is the presumption of law in the absence of all proof? The presumption of law is, that it was fairly explained to him, unless the contrary is shown; and if he executed the deed without requiring it to be explained to him, would you therefore avoid that deed? That, if it were established, must extend not simply to a deed of this description, but to a deed upon contract; and your Lordships will at once see how far that will go. If Lord Fife had signed a contract for the purchase of an estate, he might, according to the principle of this case,—at least I am not aware of the answer to it,—have avoided that contract on the ground that he was blind, and therefore might be imposed upon; for that is the ground upon which this case is presented to your Lordships;—that it is to be presumed that an instrument, executed and attested by witnesses in due form, was not the instrument he intended to execute, because, being blind, it is not proven that it was read over to him.
My Lords, it does appear to me that some of the principles upon which the decision in this case have proceeded are so dangerous to the public, and would lead, if carried to the utmost, to such an extent, that, upon that ground alone, it is absolutely necessary this case should be reviewed. The manner in which the learned Lord on the Woolsack has proposed it should be reviewed, appears to me well adapted to the purpose of bringing before the Jury that case which maybe properly brought before them, and which I take to be the only true question in this case, supposing the
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My Lords, I cannot conclude this without saying—(I hope there is no occasion for saying it, but it will do no harm)—that the case has been argued at the Bar without any observation falling from any body upon the conduct of the parties, either those who are pursuers, or those who are defenders. I hope nothing that can form matter of reflection on either has fallen from any person who has had the honour of addressing your Lordships. I know nothing of the kind fell from my noble and learned friend. I can say for myself, that it was the thing the farthest in the world from my wish that any thing of. that kind should fall from me. A circumstance makes it perhaps not improper that I should say, that I do not think that Lord Fife would have done his duty to himself if he had not instituted this cause, and that it is on his part a very honourable cause to institute; and, on the other part, I think that the persons claiming under the deed would not have done their duty if they had not resisted this suit; and that there appears to be no imputation whatever on the moral conduct or the honour of any person whatever concerned.
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Appellant's Authorities.— (1.)—Ayton, Feb. 5. 1742, (14935.)—(2.)—1541, c. 117; 1579, c. 185, or c. 80; Vin. Inst. 292; 3. Heinec. Antiq. 10. 18; 6. Cod. 21. 1; Couts, June 21. 1681, (6842); 1. Bank. 11. 3; Falconer, Jan. 9.1751; 2. Elch.
voce Writ, No. 26; Bell on Testing Deeds, 205. et seq.; 2. Bos. and Pul. 2.17; Peake, N. P. 148.
Respondent's Authorities.— (1.)—Hamilton, Dec. 21. 1621, (7799); Mar, June 23. 1612, (7798); Ballantine, Jan. 5. 1675, (7807.)—(2.)—Falconer, Jan. 9. 1751, (16817); Ross, June 11. 1794, (582);
Bain v. Belshes, not reported;
Wilson v. Pringles, May 13. 1814, not reported.
Solicitors: J. Chalmer,— Spottiswoode and Robertson,—Solicitors.
( Ap. Ca. No. 26.)
