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GAZETTE
APRIL 1983
Witnessing
and
Attestation
by
Charles R. M. Meredith, Solicitor.
Under the above title, the Gazette of November 1981
(Vol. 75 No . 9) contained an examination of the separate
concepts of
witnessing
and
attestation
in the
hgfaofthe
various decided authorities, culminating in the 1881 case
of
Seal
v.
Claridge
( 50 L.J.Q.B. 316).
In the article the author mentioned, almost parentheti-
cally, that the Registry of De eds had finally made up its
mind as to the proper execution and attestation of deeds by
corporate bodies in order to satisfy the requirements of the
Statute 6 Anne, c.2, and stated that 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, two further attesting witnesses are required, one
of whom must swear the affidavit of due execution
endorsed on the Memorial.
The author's statement as to Registry of De eds practice
was made as a result of personal experience. Some six
years ago the author presented for registration a deed and
memorial executed by a limited liability company, but
bearing no signatures other than those of a director and the
secretary of the company. The deed was rejected by the
Registry of De e ds staff and, upon
e n q u i r i n g
by telephone,
the author was informed that the Registry had taken die
view (which, on the basis of the decisions discussed in the
author's previous article, would seem to be the correct
view) that the signatures of the director and secretary
could not be regarded as
attestation
within the meaning ot
the Statute. The author was informed by various
colleagues that the same view had been expressed to them
by the Registry.
„ ,
,
n o o
..
In a letter to the author dated 15th February 1982, the
Assistant Registrar has stated that all his staff are . . . . .
aware of the desirable method (of attestation) but realise
that where a Solicitor insists on registration on ^question-
able execution of the deed and M e m o r i a l . . .. they are
under pressure to register. The Registrar further explains
that precedent has ruled that the Registry Proceed with
registration, provided that the Solicitor indicates thatthere
are two witnesses to the execution of the Memorial and
that one of such witnesses is set out in the' M«m>nal1 as
being a witness to the execution of the deed. If the Solicitor
does not set them out as witnesses and does not indicate
that they are witnesses to the execution of the Memonal,
then the memorial will be rejected as not complying with
the requirements of the Statute. The Registrar concluded
with the very helpful assurance that it has been Registry
practice to err on the side of registration rather than
rejection, if the requirements of the Registry have, on
the face of it, been met. While the helpfiilly pragmatic
approach of the Registrar and his staff cannot but be
appreciated by the profession, the inescapable conclusion
would seem to be that the profession may, inadvertently,
be misleading the Registry of De e ds staff by so setting out
the execution of deeds and Memorials as to indicate that
the signatures of directors and secretaries are by way of
attestation
of the execution by a corporate body, rather
than part of the execution itself. In hisjudgement in
Seal
v.
Claridge,
Lord Selborne, concentrating on the meaning of
the word "attestation" (quite apart from the specific
provisions of the Bills of Sale Act) considered that the
word must imply the presence of some person who stands
by but is not a party to the transaction. Arguably, in the
execution of a deed and Memorial by a corporate body,
the director and secretary whose signatures are required
by the articles of association as part of such execution
must themselves be "parties to the transaction", being
officers of the corporate body whose signatures are
required to give effect to the corporate body's seal and
cannot be regarded as simply "standing by".
It may, perhaps, be relevant, rather than merely
tempting, to postulate the question of what might happen
to priorities if the issues were sufficiently large or the
circumstances sufficiently important tojustify a plaintiff in
seeking to set aside the registration of a deed executed by a
corporate body, on the ground of inadequate attestation.
Maguire on "Registration of Title, etc." 1900 Ed. on p.74,
states that it is well settled that the certificate of
registration endorsed on a deed "is only
prima
facie
evidence of the validity of the registration. It affords only a
presumptio juris,
which may be rebutted by showing such
non-compliance with the Statute or such other irregularity
as would vitiate the registry
(Rennick
v.
Armstrong,
1 H.
& B. 727;
Sullivan
v.
Walsh,
1 Jones 264;
re Monsell, 2
Ir. Jur. N . S. 66)". While the practice of the Registrar and
his staff may appear at first sight to be of immediate assist-
ance to the practitioner, to register a deed without
unquestionable attestation may well be to ignite the fuse of
a time bomb. •
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