The Gazette 1983

APRIL 1983

GAZETTE

Witnessing and Attestation

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. • PROPERTY TO LET Parnell Sq., Dublin 1 c. 4 0 00 sq. ft. of offices on four floors, ba s eme nt if required, central heating, 6 t e l ephone lines, lift can be installed if necessary, planning permission for e x t en s i on.

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,

P h o n e M i c h a e l K i n s e l l a a t 8 7 4 2 63 o r 7 2 4 5 66 d u r i n g b u s i n e s s h o u r s .

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