The Gazette 1981

GAZETTE

SEPTEMBER 1981

The Lord Chancellor added that he did not pay much

attention to the old rule of evidence whereby interested

persons were rendered incompetent as witnesses; the rule

had been done away with by statute; instead he

concentrated on the meaning of the word "attestation",

apart from the Bills of Sale Act 1878. The word, he

considered, must imply the presence of some person who

stands by

but is not a party to the transaction.

The Lord

Chancellor felt that his view was confirmed by the fact that

attestation,

as such, is unnecessary, unless it is specifically

required by an instrument creating a power or by some

statute. He also examined an aspect of the case pleaded by

Counsel for the appellant Plaintiff, that the attestation

required by the Bills of Sale Act 1878 would be satisfied by

the mere repetition of the signature of a party to the deed.

"Can this", the Lord Chancellor asked, rhetorically, one

feels, "be regarded as a a useful provision?" He added that

he did not place much reliance on what had been said by

Lord Eldon, L.C., in

Coles v. Trecothick

but he did rely on

Freshfield v. Reed:

"It follows from that case that the party to an

instrument cannot attest

it. When I pass to the Bills

of Sale Act, 1878,1 find that it is necessary that the

execution of a Bill of Sale shall be attested by a

solicitor. This means that a solicitor shall be an

independent witness. It has been admitted that if the

grantor were a solicitor he could not attest his own

signature; but it is contended that it is different in the

present case, where the grantee is a solicitor".

The Lord Chancellor then applied his own common

sense to the value of attestation by a grantee who, although

a solicitor, would have in fact the greatest possible interest

to deceive the grantor, were he inclined to be fraudulent or

guilty of malpractice.

"He is not to attest an instrument which is to operate

chiefly for his own benefit".

In the instant case, he found that the attestation was

insufficient and that the appeal must be dismissed.

As the concurring words of Lord Justice Bagallay may

provoke a smile, they are here set out in full:

"I am of the same opinion. I only wish to mention

two cases which have been cited, and in which I was

a party to the decision. Neither of them bears upon

the case before us. In

Davis v. Goodman

the

question arose simply between grantor and grantee;

and it was there held that as between them no

attestation or registration was requisite. In

Fx parte

National Mercantile Bank, in re Haynes

it was held

that, if the attestation states that a proper

explanation has been given, it is immaterial that in

point of fact the solicitor has failed to discharge the

duty imposed upon him".

Clearly, in the best regulated circles, it is still possible for

execution to be imperfectly witnessed or attested. Quite

apart from the fate of the unfortunate Mr. Seal, it is not

very many years since the Registry of Deeds finally made

up its mind as to the proper execution and attestation of

deeds by corporate bodies. (For the unwary, it is now

established that the signatories to the seal of a corporate

body are not attesting witnesses; to satisfy the

requirements of the statute 6 Anne, c.2, two further

attesting witnesses are required, ine of whom must swear

the affidavit of due execution endorsed on the Memorial.)

It behoves the practitioner, pace the luckless Mr. Seal, to

establish to his own satisfaction whether any particular

paper writing requires its execution to be

attested

rather

than simply witnessed, and to ensure that such attestation

is properly achieved. History does not relate the amount of

Mr. Seal's loss through his failure to procure the proper

attestation of the Bill of Sale drawn in his own favour, but

at today's money values the cost could be dear indeed. •

FOOTNOTES

1. 1 1 L.J. Ex. 193; 9 M. & W. 404.

2. 50 L.J.Q.B. 316.

3. 5C.P.D. 128.

4. 15Ch.D. 42.

5. 9 Ves. 234 at p. 251.

6. 5 C.P.D. 128.

LAWOF

VALUE-ADDED

TAX

This comprehensive, loose-leaf volume of VAT law

has been compiled by the Revenue Commissioners

as a companion volume to the existing volumes on

the other taxes.

The new volume contains —

— the original VAT Act;

— amending and supplementary acts and

instruments;

— a non-statutory consolidation of the VAT

Acts;

— Orders and Regulations;

— E.E.C. Directives;

— Indexes.

The volume may be purchased from the

Government Publications Sales Office,

G.P.O. Arcade,

Dublin 1

or through any bookseller.

Orders placed by post should be addressed to

The Stationery Office,

St. Martin s House,

Waterloo Roád,

Dublin 4.

Price £40 (including binder). Postage £1.15 extra.

In order that the new volume may be kept up to

date, supplements will be issued as and when

changes occur in VAT law.

Revenue Commissioners, DubHn Castle.

November, 1981.

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