James Morton, (Brown's Trustee,) - Campbel - Jarves v. Hunters and Co. - Robertson [1830] UKHL 4_WS_379

UKHL
James Morton, (Brown's Trustee,) - Campbel - Jarves v. Hunters and Co. - Robertson
[1830] UKHL 4_WS_379
Held (affirming the judgment of the Court of Session), 1. That the omission of the Christian name of the Bailie, where his surname and place of residence is given, is no objection to a sasine. 2. That although the Christian name of a witness be written on an erasure in the instrument of sasine, it is no objection to it; and 3. That a sasine proceeding on an heritable bond for a cash credit for L.5000, and three years interest thereon, at the rate of five per cent, is good.

Subject_ Proof. —

Observed, That hearsay evidence and parole testimony, as to the contents of a letter not alleged to be destroyed, ought to be struck out of a proof taken on commission.The Respondents, Messrs Hunters and Co., bankers in Ayr, having agreed to allow William Brown of Lawhill a cash credit, to the extent of L.5000, he granted an heritable bond and disposition to them for the advances to be made to him, but declaring that “the whole sums to be recovered, in virtue of the said

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Brown having become bankrupt, and his estates having been sequestrated, Morton, the trustee, brought an action of reduction of the instrument of sasine, on the ground, 1. That the omission of the Christian name of the bailie was a fatal objection; but that at all events, at the date of the alleged instrument, there were two places in the parish of Stevenston called Dubbs, in each of which there were various persons of the name of Brown, so that in fact there was no bailie named in the instrument, and it was impossible to discover what person acted as bailie on the occasion of giving the sasine, or whether any bailie was present at all, or any infeftment truly given. 2. That the erasure of the name of the witness was fatal to the instrument; and, 3. That as the amount of the principal sum and interest was not limited to a certain specific definite sum, the security was ineffectual.In defence, the respondents maintained, 1. That the objection founded on the omission of the Christian name of the bailie was irrelevant, because he was otherwise sufficiently pointed out; that at the date of the instrument of sasine, there was only one farm or dwelling-place called Dubbs in the parish of Stevenston, and there the person who officiated as bailie had his dwelling-place, and they denied that there was any other place of the name of Dubbs in that parish where any person resided, although there was a colliery of that name; or that various persons of the name of Brown resided in Dubbs. 2. That the objection founded on the erasure was irrelevant; and, 3. That the amount of principal was set forth, and although the interest was not specified in so many pounds, it was quite definite and conformable to the statute.The Lord Ordinary, before answer, allowed the parties a proof of their allegations, relative to the identification of the

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asserted on the face of the instrument, and attested in the docquet, that a certain person officiated as bailie in giving seisin, and if this individual is so described that he may be known and distinguished from others. There is a case reported by Dirleton which illustrates those principles, by proving that even a mistake committed by the notary, in mentioning the name of the person who actually gave seisin as bailie, and confounding him with the attorney, will not invalidate the infeftment, if it appear from other parts of the seisin that there were actually two different persons employed, one as attorney, and the other as bailie :— or had never been known to him, that the omission in question has occurred.”
“We have considered the revised cases, and have examined the instrument of sasine in question, and are of opinion that the omission of the Christian name of the bailie in the sasine does not render the instrument null and void. The authority to infeft flows from the command of the superior, or grantor of the deed, as expressed in the precept of sasine. The precept must contain a special mandate to this effect, and no general powers, however ample, will suffice; but the name of the person to whom this mandate is committed is left blank in the precept, and never filled up. Any person can execute the precept as bailie. Mr Walter Ross thus describes the manner in which this business is accomplished:
“The first movement is made by the party or his attorney, possessor of the charter containing the precept. He requires the attendance of a notary-public to certify the act. They next, in virtue of the blank left in the precept for the bailie, choose a person to fill that office, and get witnesses to attest the whole fact.”
—Ross's Lectures, Vol. ii. p. 178. It seems sufficient, therefore, first , for validating the act of the bailie, that the precept of sasine should be delivered to a particular person, no matter whom, different from the attorney and witnesses, and handed over by this individual, whoever he may be, to the person who acts as attorney, in presence of the witnesses, and that after the precept has been read by the attorney, the person acting as bailie deliver the symbols; and it seems sufficient, secondly , for rendering these acts authentic, that the notary, in the instrument and docquet, attest them to have been done by a certain person officiating as bailie. The name of this person must indeed be given, and it is no doubt usual and proper to insert the Christian name, as well as surname; but this does not appear to be indispensable, if it is

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“The Lady Cheynes being infeft in an annual rent upon a right granted by her husband, her seisin was questioned upon these grounds—1st, That it was null, in so far as the bailie and the attorney in the seisin were one person, who could not give and take the seisin,”
&c. “The Lords, in respect it did appear evidently that it was a mistake of the notary that the seisin did bear the same person to be both bailie and attorney in the clause of tradition, and seeing by the first part of the seisin it was clear that there was a distinct attorney, who did present the seisin to the bailie, did therefore incline to sustain the seisin,” &c. In the present case, a parole proof has been rendered competent and necessary, because the purpose of it is not to contradict the written instrument, but to explain an omission in it, and because one of the reasons of reduction libels, “that the bailie is not so designed as to point out the person, or give any information who the bailie was, there being in the parish of Stevenston two places called Dubbs,” &c. Now it appears from the proof, that the person who is said to have acted as bailie, in giving infeftment, was little known by his Christian name; but that, in order, in all probability, to distinguish him from others of the same surname, who lived at no great distance from him (though not on the same farm, nor in the same parish), he was generally designated “Old Brown in Dubbs,” or “Old Dubbs,” or “Brown of Dubbs, in the parish of Stevenston,” or “Brown in Dubbs.”—Defenders' proof, p. 29, D; Pursuer's proof, p. 16, C, &c. It may have been from this cause, joined to the circumstance of the notary filling up the blanks at an interval of time (and not having very perfectly fulfilled the duty, as expressed in these words in his docquet, et in notam cepi ), when he only recollected the bailie by the name which was usually given to him in the country, and when the Christian name had either slipped from his memory,

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From this opinion Lords President, Craigie, and Gillies dissented, while Lord Balgray concurred. The Court accordingly, on the 10th of December, 1828, repelled the objections to the instrument of sasine, sustained the defences, and assoilzied. *Morton appealed.Appellant .—1. An instrument of sasine is an important and esential part of a title, and must be in every respect complete. If slovenliness be permitted, it will be impossible to assign any limit to such a permission. It is therefore necessary to preserve perfect accuracy. In giving sasine, either the superior or his bailie must be present. In the precept the name of the latter is generally left blank; but it is requisite that the name of the particular person who has officiated be set forth in the instrument. It is not enough to state the surname of the bailie, because this no more identifies the individual than if the Christian name without the surname was given. The matter is thus left in uncertainty; besides, the proof shows that there were other persons of the name of Brown who resided in Dubbs, parish of Stevenston.2. By the Statute 1681, cap. 5, witnesses must be specially named and designed in instruments of sasine; but as the word Mathew is written upon an erasure, it must be held pro non scripto; and consequently, the name being defective, the instrument falls under the sanction of nullity.3. The words of the statute 54 Geo. III. c. 137, are quite express, “that the principal and interest which may become due upon the said cash accounts or credits, shall be limited to a certain definite sum, to be specified in the security,—the said definitive sum not exceeding the amount of the principal sum, and three years interest thereon at the rate of five per cent.” But the sasine does not specify any definite sum,—it merely declares that the security is given for a sum not to exceed L.5000, and interest. It is not relevant to say that this affords data for specifying the sum. The enactment of the statute is, that the sum shall be specified, and is equally imperative with another section of that statute relative to valuing and deducting securities in claiming on the bankrupt estate, and specifying the balance.

Footnote

* 7 Shaw and Dunlop, p. 172.

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Respondents .—1. It is not essential in point of solemnity that the Christian name of the bailie be mentioned, if he be otherwise so described and identified as to point out the person who officiated. In the present case the surname, the place of residence, and the parish, are given in the instrument. This is a sufficient specification, and there being no ambiguity on the face of the instrument, extrinsic evidence to the effect of introducing ambiguity was incompetent. The proof, however, clearly establishes that there was only one Brown who resided at Dubbs, in the parish of Stevenston.2. It is not denied that in point of fact Mathew Brown was a witness at the taking of sasine, nor is it alleged that the erasure was made posterior to the recording, which it could not, because the instrument and the record correspond, and the signature of the witness is unobjectionable.3. The statute has been sufficiently complied with. It is immaterial whether the sum is set forth as L.5750, being the amount of principal and interest for three years, or whether, as is actually done, the principal sum be specified and the words added, ‘with three years interest at five per cent.’Lord Chancellor .—My Lords, in a case like the present, involving questions upon the law of real property in Scotland, the principles of which, in its origin, bore a near resemblance to, if they were not altogether the same, with those of the English law, although, by lapse of time, they have come to be so widely different, that, in many respects, they may be rather said to be opposite to one another than merely unlike, I should be very slow indeed to take up an opinion, even if I thought I saw ground to maintain it, which went to reverse an advised judgment of those learned persons who adorn the Scottish Bench, after having been for years the ornaments of the Scottish Bar, and practised for years in that branch of the profession which deals with the rights of real property. I should come with the greatest hesitation, and, I may say, even alarm, to any conclusion that might seem to differ from theirs;—for it is needless to remark, how little we generally learn of foreign law, and foreign systems of jurisprudence, unlike our own, by merely consulting statutes—which have oftentimes an interpretation affixed to them by practice widely different from the apparent and plain meaning of their words,—or by resorting to judicial decisions or the opinions of text-writers, or to the incidental dicta of judges; for all those sources (and they are the only sources from which the law of any foreign country can be learned) are liable to be

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With respect to the two other points of the statute of 54th of the late King, (chapter 137, section 24,) I take it to be clear, that that is entirely wide of the present objection; that there is quite sufficient specification of the sum, when it is said, that “the said sums, taken together, shall not exceed the sum of L.5000, and three years' interest thereon, at the rate of five per cent.” I think any words more clear and more plain

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My Lords,with respect to the third proposition, as to the name of the witness, it is said, that the attesting witness's name is written on an erasure. Your Lordships will please to consider, that this objection ds to the erasure is made, not to the subscription of the witness, but to the insertion of the witness's name in the recital of the testing clause. But then, it is said, that though there is no erasure, whereupon the name is written below the notarial clause, yet that, because there is an erasure in the testing clause, the instrument is made void. Now, I see no warrant, either from the Act of Parliament of 1685, or from any authority that has been produced, to incline me to deviate, in the slightest particular, from the opinion which has been given by the learned Judges with respect to the third point, on which, I understand, they had no difference of opinion. Upon the first, I should not have troubled your Lordships at so great length, had it not been that there was a difference of opinion among those Judges, and it appeared, by taking the opinion of the consulted Judges, that it was deemed a point not quite settled, and had it not also been for the great deference I feel for the learning and experience of the learned Judge (Lord Craigie), whose opinion I differ from upon the present occasion. Upon the two other points, upon which there is no difference of opinion, I propose to take the course which I always intend to pursue. It was the ancient course, and it has only been broken in upon within the period of my memory and my experience at the Bar of your Lordships' House, namely, that, when the judgment appealed from was to be affirmed, there were no reasons given, and when the judgment was to be reversed then the Court gave reasons. I intend, with the permission of your Lordships, not to deviate from that ancient and convenient practice, and only to give my opinion at length when either there has been a discrepancy in the opinions of the Court below, and when the law may require to be looked into for the purpose of making it clear, or when there may be a reversal or a remit, or some direction given as to some further proceeding in the Court below. For these reasons I have no hesitation in moving your Lordships that this judgment of the Court below be affirmed.The House of Lords accordingly ordered and adjudged that the interlocutors complained of be affirmed.Appellant's Authorities .—2 Erskine, 3, 35, and 37. Murray, 22d June, 1821, (1 Shaw and Dunlop, 81.) Respondents' Authorities .—7 Craig, 2. 2. 2 Erskine, 3. 33. 2 Craig, 7. Hilton, 24th February, 1676, (14,331.) Henderson, 8th March, 1776, (5 Sup. 586.) Gordon, 21st June, 1765, (16,818.)Solicitors: A. Mundell,— Richardson and Connell,—Solicitors.