Scottish Court of Session Decisions

Lord President (after narrating the facts)—The will bears to have been executed by a notary. The docquet is admitted to be not holograph of the notary. This is one of the cases where one notary and two witnesses are sufficient; hut everything else which the law requires to give validity to a notary's subscription for a party is just as necessary in subscription by one notary as by two. Certain things the law absolutely requires to make a subscription by a notary equivalent to that of the party. Authority must be given by the granter to the notary—intelligently given, by a person made aware of the nature of the deed; that authority must be given in presence of two witnesses, who are the instrumentary witnesses of the deed; and all these facts must be explicitly set forth in the docquet of the notary; further, the authority must be given at the very time the notary subscribes, otherwise there would be no evidence that the granter had not changed his mind. The witnesses sign not only as witnesses to the deed, but as persons who have witnessed the procedure between the granter and the notary; they accordingly subscribe as witnesses to the truth of what is contained in the docquet. The words of Lord Kilkerran in regard to the case of Birrel, June 18, 1745, M. 16,846, are very instructive; there a deed, the docquet of which did not expressly bear that the granter ordered the notary to sign for him, was held ineffectual. Lord Kilkerran observes—“Witnesses to a deed signed by notaries are not only witnesses to the subscription of the notary, but also to the command given him, both which the witnesses attest. And as witnesses are neither bound, nor supposed in any case to know what is contained in the body of the deed, they attest no more than what is in the docquet. The authority, also, to notaries must be given at the very time of executing the deed, for till then there is locus pænitentiæ; and, for anything that could appear from the face of the deed in question, it might have been written many days before signing. The docquets bearing pro illo subscribo was nothing; for, though it may be true that the notary could not with truth say so without authority, yet that was but his assertion, which, whether true or false, is the very question, as no fact was asserted in evidence of such authority, the truth of which the witnesses were to attest.” In short, the notary's docquet, along with his subscription, and not his subscription alone, constitute the legal equivalent to the granter's subscription. In Falconer's report of Birrel, M. 16,847, there is a good observation recorded:—“That in the body of the writ the notary speaks not, but the party; and the thing to be attested is, that the party has spoke at all.” Keeping in mind, then, the importance of the docquet, it is clear that, unless it is holograph of the notary, there is no sufficient security that then and there the notary subscribed for the granter— i.e., wrote the docquet and added his signature.

An inspection of this very deed illustrates the importance of the rule. Although it is only admitted that the docquet is not written by the notary, one can see that it is in the same handwriting as the body of the deed—viz., of John Macdonald, one of the executors. Probably, then, the deed and docquet were written at the same time, and it was not till afterwards that the notary and witnesses were called in, I do not found my judgment on this; I merely put it as a good illustration of what was sought to be guarded against by the rule of law which requires the notary to write the docquet himself, and to write it at the time he adds his signature.

If we turn to the practice on the point, there is not a single work on conveyancing which does not state the practice to be what I have laid down. When there are two notaries, the old practice was for each notary to write his own docquet. In later times the first notary writes his docquet in

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