The Gazette 1981

SEPTEMBER 1981

GAZETTE

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 6 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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