Court allows parol evidence to show husband's intent in joint bond despite survivorship clause.

[*281] 1976 Sept. 20

(STAVRINAKIS,P.D.C. & ORPHANIDES, S.D.J)

IN THE DISTRICT COURT OF NICOSIA

Despina Nicolaou,

Plaintiff,

and

Antonis Nicolaou and another,

Defendants.

(Action No. 5473/74).

Evidence - Admissibility - Money lent to a bank by husband upon issue of a bond in the joint names of himself and his wife as beneficiaries, with a clause as to survivorship during currency of the bond - Whether parol evidence admissible to show the intention of the parties - Answer in the affirmative because the bond was not a "written document" within the meaning of the doctrine excluding extrinsic evidence but an incident of a wider transaction.

Trust - Resulting trust and advancement - Presumptions of - Money lent to bank by husband in joint names of himself and his wife as beneficiaries with clause as to survivorship during currency of the bond - Admission of parol evidence to show the intention of the parties - Intention of the husband was that wife should only get the total amount of the loan in case he predeceased her during the currency of the bond - And not to make a gift of any part of the money to her after the expiration of the bond and whilst, if by then, he was still in life - Husband entitled to whole amount, despite fact that wife is named as a joint beneficiary.

Contract - Joint debt - Contracted by husband and wife - Whole debt paid by husband - Right of husband to reimbursement - Principles applicable - In paying the debt in full husband intended to do so gratuitously and he never intended to claim reimbursement. [*282]

No appearance, for the Plaintiff.

I. Avraamides, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by:-

STAVRINAKIS, P.D.C.: This is a claim by the defendant, by way of counterclaim, in the Action under the above title and number.

The claim of the plaintiff is based on a bond executed for the joint benefit of the plaintiff and her husband, defendant No. 1 , alleging that she is entitled to the one half of the amount due under the bond and asks the Court for the relevant declaration and order.

The Action is against her husband, defendant No.1 and the Co-Operative Credit Society of Morphou, defendant No. 2, the latter being the party bound by the said bond to pay the amount due thereunder to the beneficiaries.

Defendant No.1 alleges that he is the absolute beneficiary of the amount due under the bond and prays for a declaration to that effect. He further claims £2,150.- allegedly paid by him for and on behalf of his wife, the plaintiff, due by both of them under another bond, the said amount being in excess of his own liability under the said bond.

For the purposes of these proceedings, we shall refer to the plaintiff as the wife and to defendant No.1 as the husband. [*283]

History of proceedings:

The Action was filed by the wife on the 13th November, 1974, who, according to the writ of summons, was at the time residing in Australia. The Action was against her husband and the Co-Operative Credit Society of Morphou. The husband-defendant entered an appearance on the 27th November, 1974 through an advocate. Defendant No. 2 failed to enter an appearance despite the fact that the writ of summons was duly served on them or the 1st March, 1975.

On the 31st December, 1974, there was an application by the husband-defendant for the dismissal of the Action by reason of failure of his wife to file a Statement of Claim. Eventually a Statement of Claim was filed on the 30th January, 1975 and the application for the dismissal of the Action was dismissed with costs against the plaintiff. A Statement of Defence and Counterclaim was filed by the husband-defendant on the 15th February, 1975 and a reply and defence to the claim was filed by the plaintiff-wife on the 26th February, 1975.

Upon application to fix, made by both parties separately, the Action was fixed on the 2lst March, 1975 for mention and on that day, as there was no room for settlement, the Action was adjourned to the 18th June, 1975 for hearing.

On the 10th June, 1975, counsel for the plaintiff filed an application asking for an adjournment [*284] which was made returnable on the 17th June, 1975. The application was opposed and it was adjourned to the 18th July, 1975 for hearing. The ground on which the application for adjournment was based, was that the plaintiff was in Australia and that she would come to Cyprus by the end of that year.

On the 18th June, 1975, counsel for the plaintiff renewed his application for an adjournment on the ground that the plaintiff was abroad and that there were other cases between the parties pending before the Court. The Court, after hearing argument from both sides, adjourned the hearing of the case with a special direction that the Action be fixed for mention on the 4th July, 1975, so that efforts would be made to fix all Actions between the parties after the Court (summer) vacations of 1975. Counsel for the plaintiff-applicant was requested to inform the plaintiff that if she was not in Cyprus on the day the Court would fix the case for hearing, then the Action would be dismissed for want of prosecution.

On the 4th July, 1975, the Court fixed the 16th July, 1975, as the date for the hearing of the Action.

On the 23rd July, 1975, counsel appearing for the husband-defendant applied for the taking of the evidence of a certain Katina Nicolaou Vassiliou as preparatory to the trial, under 0.36,R.5 of the Cyprus Civil Procedure Rules. Notice was given to the other side and on the 21st August,1975, the Court took the evidence of the said witness as preparatory to the trial. [*285]

On the 16th December, 1975, the hearing of the Action was adjourned to the 6th February, 1976, owing to the Assizes.

On the 29th January, 1976, counsel appearing for the plaintiff made another application for adjournment. The application was fixed on the 6th February, 1976. Counsel appearing for the respondent-defendant-husband, filed his written opposition on the 2nd February, 1976. This time the application was based on the ground that certain useful information was expected from the plaintiff-wife; however, on the 6th February, 1976, it was stated by the counsel for the plaintiff that certain proposals aiming at a settlement were exchanged and he applied for an adjournment. Counsel for the respondent-defendant did not object to this adjournment but applied for a date of hearing in case the negotiations fell through. The Court adjourned the case and fixed it on the 27th March, 1976 for mention and on the 20th May, 1976 for hearing.

On the 22nd March, 1976, it was stated that the proposals for settlement did not materialise and that the Action should proceed to a hearing on the date already given.

On the 20th May, 1976 counsel for the plaintiff applied for a long, if not indefinite, adjournment, on the ground that his client was in Australia and could not come. The defendant objected strongly to this application alleging that he was awaiting the result of this Action[*286] to go himself back to Australia, The Court refused the application for adjournment, upon which counsel for the plaintiff applied for leave to withdraw. The Court granted leave and requested counsel to inform his client fully of the day's events in Court.

After a short break, the defendant-husband was allowed to proceed with his counterclaim. He first called a certain Christakis Christophides (P.W.1), the Manager of Morphou Co-Operative Credit Society, and then on the 10th June, 1976, he himself gave evidence as P.W.2.

After the conclusion of the hearing of the evidence, an adjournment was given to enable counsel to prepare his address in writing which he did and filed it on the 25th June, 1976. The judgment was reserved.

FACTS:

The facts as presented by the defendant are simple and they are as follows: The defendant and the plaintiff were husband and wife and on the 30th May, 1969, they contracted jointly a loan from the Mortgage Bank of Cyprus Ltd. (Ktimatiki) for the sum of £4,000.- payable on the 21st June, 1969, with interest at the rate of 7½% per annum. The said money were needed to fulfill an obligation of the parties in building jointly a house for their daughter by way of dowry. The husband paid off the amount due under the bond, plus £300.- accrued interest and he claims the one half of the total paid by him as money paid for and on behalf of the plaintiff, his wife. [*287]

On the 5th November, 1973, the sum of £6,000.- was deposited, in the Morphou Co-Operative Credit Society and a bond was issued by the Bank, carrying interest at the rate of 7¼% per annum, the amount of the bond being payable on the 5th April, 1974. The plaintiff and the defendant were named as the joint beneficiaries of the bond.

At the end of the bond in question – exhibit No. 1 - , there is a note under the heading 'idiki ori' reading as following:- "O tokos tis katatheseos taftis pavi aftodikeos ama ti lixi tis". This clause forms part of the printed writing of the document. Underneath the above, the following term appears type-written: "En periptosi thanatou ioudipote ton dikeouchon to ekastote pistotikon ipolipon ine pliroteon is ton epizonta dikeouchon".

The defendant-husband alleged that the £6,000.- belonged to him and that he did not intend his wife to get any of the money during his lifetime and that all he intended to do was that the money should go to her in case he predeceased her during the currency of the bond. He further alleged that the bond was drafted in the way it was by the Bank Manager after the defendant-husband explained to him his intentions and also explained to him that his wish was that his children should not benefit from this deposit in case of his death occurring before the expiration date and in such a case, only his wife should get the money under the bond. The reason for not wanting his children to benefit from this deposit was that he and his wife had already provided dowry for them. [*288]

ISSUES:

Although the case proceeded in default and there are no factual issues in dispute, there are nevertheless certain important legal issues falling for determination; they are:-

A. Admissibility of evidence.

B. Legal effect of bond exhibit No. 1

C. Husband’s claim for contribution.

A. Admissibility of evidence:

During the hearing of the case, evidence was adduced as to the intention of the husband in executing bond exhibit No.1. Naturally no objection was taken, as there was nobody appearing for the other side, to challenge the admissibility of such evidence but that does not mean that in default cases there is any relaxation of the Rules of Evidence; the Court is always bound to see that it acts only on evidence which is legally admissible, ignoring and disregarding any other evidence that may have been filtered through which is not admissible.

In this case we have a document which is an ordinary bond in the joint names of the parties, the only unusual term being the note about the devolution of the beneficial interest of the said bond in case one or the other of the beneficiaries died before the bond expired. There is nothing in the bond qualifying the rights of the nominated beneficiaries after the date of expiration if by [*289] then both beneficiaries happened to be alive. The bond, as it stands, without any other extraneous evidence, can accept only one interpretation which is, that in such an event, the nominated beneficiaries are jointly entitled to the amount due thereunder. It is this apparent meaning that the defendant-husband seeks to qualify and contradict by the evidence he adduced as to his intention and the question is whether he could adduce such evidence or, after having adduced such evidence, whether it is legitimately open to the Court to act on such evidence.

The general rule is that "when a transaction has been reduced to or recorded in writing, either by requirement of Law or agreement of the parties, extrinsic evidence is in general inadmissible to contradict, vary, add to or subtract from the term of the contract".* There are, however, numerous exceptions to the above Rule, one of which is that extrinsic evidence (including in some cases direct declaration of intention) is admissible to show the true nature of the transaction or the legal relationship of the parties.

We now turn back to what the defendant-husband sought to prove by the extrinsic evidence he adduced. The document appears to be a bond issued in the joint names of himself and his wife and what the husband alleged [*290] is that his wife is not entitled to the amount due under the bond or any part thereof after the bond expired and whilst both of them are still alive, for the following reasons:-

(i) That the amount of the bond belonged to him before it was deposited in the Bank.

(ii) That no gift was intended to be made to the wife of any part of the amount of the bond after the expiration of the bond if by then he happened to be in life, in which case the whole beneficial interest of the bond would result to him.

The principle of presumption of resulting trust to the "real purchaser” is that "the trust of a legal

estate ...... results to the man who advances the purchase money";* particularly, we read the following passage from Snell's

Principles of Equity, 27th ed., at p. 175:-

"Application. The doctrine applies to pure personality as well as land. It also applies where two or more persons advance purchase money jointly and the purchase is taken in the name of one only, in which case there is a resulting trust in favour of the other or others or to do so much of the money as he or they advanced. Further, the contribution may be indirect as where one party pays expenses which the other [*291] would otherwise have had to pay. If the advance of the purchase money by the real purchaser does not appear on the face of the debt, and even if it is stated to have been made by the nominal purchaser, parol evidence is admissible to prove to whom it was actually made, for such evidence in effect shows that the nominal purchaser was really the agent of the true purchaser, a purpose for which parol evidence is always admissible".*

Before

proceeding further, we better perhaps mention another type of resulting trust and that is the presumption of advancement. We read again

from Snell’s (supra) at p 176:- ...

"Wife: Accordingly, the man buys property and has it conveyed to his wife ..... prima facie this is a gift to her. If it is conveyed to both of them jointly prima facie, they held as beneficial joint tenants".

The presumption of resulting trust and of advancements can be rebutted by evidence of the actual intention of the purchaser and "in the case of an asset purchased for the joint use of husband and wife, the presumption of advancement is readily rebutted". [*292]

In Snell’s (supra), at p. 178, the following passage was cited with approval by Viscount Simons in Shepphard v. Cartwright, (1956)A.C. p. 431 at p. 445:-

"The acts and declarations of the parties before or at the time of the purchase or so immediately after it as to constitute a part of the transaction are admissible in evidence either for or against the party who did the act or made the declaration; subsequent acts and declarations are only admissible as evidence against the party who made them and not in his favour".

The presumption may well be rebutted by circumstance as in Hoddinott v. Hoddinott*, to show that the property was put in another’s name merely for convenience. In that case where money belonging to the husband were deposited in a joint account with the wife solely for the purpose of enabling the wife to draw money whenever the husband could not, owing to his work, it was held that this was sufficient to refute a presumption of gift.

However and despite the above, the following passage from Phipson on Evidence (supra), para. 1795, is of importance:-

"Where a resulting trust arises by construction of a written document, no extrinsic evidence is admissible to contradict it or show the real in-, tention of the parties; where, however, it arises [*293] merely by presumption of Law, such evidence may be given by both to rebut and in reply to support the presumption. Examples of the former occur where an express trust fails to exhaust the pro perty but the words negative a beneficial interest in the trustee; and in the case of an executor’s right to the residue where a legacy is given to him ’for his trouble’. Examples of the latter occur on the purchase of property in the name of a stranger; or in the case of an executor's right to residue where a legacy is given to him simpliciter".

In this case, we only have a bond and the all important question is whether that bond is a "written document" on the construction of which we have solely to rely or just an incident of a wider transaction, the nature and effect of which we must evince from the surrounding circumstances and intention of the parties.

In the above respect, we have to note the following; The document was prepared by the Bank Official after the defendant, in the presence of his wife, explained to him his intentions. In the second place, the document is just a bond signed by the borrower and does not specify the rights of the lenders inter se or their shares during their life time. It is a straight forward bond not betraying in any way any special agreement between the lenders, except the note about their rights in the event of the one surviving[*294] the other prior to the date the bond became due and payable. Finally, if this bond can be treated as a written document falling within the ambit of the doctrine prohibiting admission of extrinsic evidence, then it may be treated as such only regarding the rights between the lenders and the borrower, namely the husband and wife on the one hand and the Banker on the other, but it cannot possibly be a contract manifesting the lender's private arrangements and agreements regarding the distribution of the money after the expiration of the bond and whilst both of them are still alive. It may be that the note about the survivorship does represent the lenders’ agreement interse and as to which no extrinsic evidence is permissible, but certainly the other parts of the document do not represent, at least fully, their agreement.

In conclusion, we find that any evidence adduced by the husband tending to establish the rights of the parties to the money after the expiration of the bond and during the life time of the beneficiaries, is admissible for the purpose of determining the source of the money and of refuting or substantiating any of the factors pertaining to the facts and circumstances of the case.

Before we conclude on this and by way of example, we wonder whether the parties, that is the husband and the wife, would not have been entitled to have their rights determined as to the money after the expiration of the bond and if predeceasing did not materialise during the currency of the said bond. We think that the parties would have been [*295] entitled to have their rights determined and that they would not have been in any way estopped by whatever the bond stated.

Whilst on the issue of admissibility, there is another aspect of the case meriting consideration and this is the admissibility of the evidence taken at the instance of the defendant as preparatory to the trial, under 0.36, R. 5. Nowhere on the record does it appear that this deposition was be-spoken and, therefore, according to the authorities*, we cannot use it as evidence before the Court. [*296]

P.W.1 Christakis Christophides, the Bank Manager who drafted and executed the bond in question, stated that the husband went to the Bank with a large sum of money in cash and wanted to make a deposit in such a way so as to exclude his children benefiting from the deposit in case of his death occurring before the expiration of the bond. The husband wanted to be the sole beneficiary after the expiration of the bond but in case he pre-deceased his wife before such expiration, then he wanted the money to go to her as her own. Upon this, he advised the husband to make a bond in their joint names with a note that the money should go to the survivor in the case of the one pre-deceasing the other during the currency of the bond.

The evidence as to the intentions of the husband stands uncontradicted and unchallenged and we cannot make any finding contrary to what has been stated before us, not just because the hearing proceeded in default, but because the evidence as it stands is not so fantastic or improbable as to be disregarded lightly as a pack of lies invented and advanced by the husband taking advantage of the absence of the other side. Furthermore, the husband's evidence is corroborated by the evidence of the Bank Manager which we accept, there being no indication showing that he is not an independent witness. It is worth noting that this is the man who conceived the idea of drafting and executing the bond in question in the way it was so executed. [*297]

The net result of the above is firstly that the husband intended to make a gift of the amount deposited in the Bank to his wife in the event only of his death occurring during the currency of the bond and, secondly, no gift was intended of any part of the deposit to his wife after the bond became due and payable, if by then he was alive and this suffices to rebut a presumption of gift to the plaintiff of any part of the amount due under the bond.

The problem is whether the bond, in the way it was drafted and in particular the use of the wife's name as a joint depositor, accepts this interpretation. The use of the name of the wife in this case as a joint beneficiary to the deposit is the only incident that may give rise to a claim on her part to the money. As the money did not belong to her, it may be that part of it, probably the one half, was made a gift to her to take during the life time of the husband after the expiration of the bond or that the whole deposit should go to her absolutely in the event of her surviving her husband during the currency of the bond to the exclusion of their children.

We have already dealt with the consequence of the purchases in the names of others but the following passage from Underhills Law of Trust and Trustees, 12th ed. p. 205, sums up the Law with all the presumptions that may arise, in a most clear and unambiquous manner: Article 29:-

(1) "When real or personal properties conveyed to a purchaser jointly with others or to one or more [*298] persons other than the purchaser, a resulting trust will be presumed in favour of the person who is proved (by parol or other evidence) to have paid the purchase money in the character of purchase.”

(2) “The presumption may be rebutted -

“(a) by parol or other evidence that the purchaser intended to benefit the others; or

“(b) by the fact that the person in whom the property is vested was the lawful wife or child of the purchaser or was some person towards whom he stood in loco parentis or was trustee of a settlement by which he previously settled property.

“In any of these cases, a prima facie (but rebuttable) presumption will arise that the purchaser intended the ostensible grantee or grantees to take beneficially or in the last mentioned case upon the trusts of the settlement in question”

“(3) Similar principles apply to subsequent voluntary transfers of real or personal estate".

The intention of the husband in this case is clear and sufficiently strong to rebut firstly a presumption of resulting trust to him of his ostensible share of the deposit after his death and during the currency of the bond, in so far as an intention to make a gift is evinced [*299] from the evidence and, secondly, to rebut a presumption of gift to his wife of any part of the deposit after the expiration of the bond and the use of his wife's name as a joint depositor, being invented and used by the Bank Manager as a convenient way of giving effect to the husband's intentions and wishes.

As we have already mentioned, in the case of Hoddinott v. Hoddinott (supra), the use of another's name for purposes of convenience was sufficient to rebut a presumption of gift and this is exactly what happened here in this case.

The evidence is clear and we need not say any more, except perhaps by way of conclusion that the presumption of gift by a husband to his wife is very easily displaced because, as it is stated in Underhills Law of Trust and Trustees (supra) at p. 213 by reference to the case of Marshall v. Grawtwell,(1875)L.R. 20 E.Q. 328 -

"When a joint account is opened by a husband in the names of his wife and himself and the only money paid into the account is that of the husband, the question whether the presumption of advancement applies in favour of the wife may be difficult to answer".

And it goes on -

"If the joint account was opened merely for convenience, the wife will not have the [*300] benefit of this presumption and will not be entitled to the money standing to the credit of the account on the husband's death. But if it was opened with the intention of making provision for the wife (an intention which will be more readily inferred if the only person to operate the account was the husband), then the wife will be so entitled".

Although it is in evidence that the husband intended to safeguard his wife in case he pre-deceased her by excluding his children from the benefit of the deposit, yet we cannot ignore the express and declared intentions of the husband in whatever manner the Bank Manager thought fit to give effect to such intentions which were to safeguard his wife by making a gift to her of the whole deposit in case he died before the expiration of the bond but not after. If he really wanted to part with any part of the amount during his life time, he could easily make an absolute gift of that part and make a joint deposit of the balance with a clause about survivorship; but he did not do that because he intended to have the absolute ownership of the money during his life time.

For the above reasons, there will eventually be a declaration as per paragraph 20 A. of the counterclaim.

C. Husband's claim for contribution:

The other part of the defendant's-husband's counterclaim relates to the payment in full by him of the [*301] amount of a joint debt contracted with his wife. With regard to this, we have the evidence of the husband and the bond itself which was for £4,000.-, dated 30th May, 1969, and which is before us as exhibit No. 3. This bond is in the joint names of the husband and the wife, binding themselves to the payment of the amount due thereunder.

According to the evidence of the husband, the whole amount, including £300.- interest, was paid by him to the Bank. He claims the one half of the total so paid from his wife as money paid for and on her behalf. He further said that this loan was contracted jointly for providing dowry for their daughter.

It is the husband’s allegation that he, together with his wife, undertook to provide dowry for their daughter, although it is not clear in what proportions.

In the case of Anson v. Anson, (1953)1 All E.R., p. 867, it was held that the right of a guarantor to reimbursement by the principal debtor if he was called on to pay the debt, was based on an implied contract between him and the debtor or had a right to pay the amount of the debt as money paid to the debtor’s use; according to the facts of the case, the husband guaranteed an overdraft of his wife and, upon demand by the Bank, he paid the debt in full. He claimed reimbursement and on this it was held that there was no presumption as between husband and wife that the guarantee was in the nature of an advancement to the wife of the sum guaranteed and paid and in the absence of a special arrangement between the parties, the husband was entitled to reimbursement. [*302]

In addition to the above case, we have, the express provisions of Section 69 of our Contract Law Cap. 149, which gives a right of reimbursement but we must not overlook the provisions of Section 70 of the same Law, the wording of which is of particular importance. It reads:-

"Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered"

Considering the facts of this case as a whole, we find that this sudden desire of the husband to safeguard his wife to the exclusion of his children by executing bond exhibit N0.1, is quite inconsistent with an intention on his part to claim reimbursement for the payment by him in full of the joint debt contracted four years prior to the deposit at the Bank of the £6,000.-. It is, in our view more reasonable to infer that the debt for the £4,000.- was paid by him not intending to claim reimbursement from his impecunious wife, especially since the loan was contracted for providing dowry for their children, rather than accept his own version that he did not intend to relinquish his wife from this obligation, especially after the execution of exhibit No.1 and his declared intentions regarding the said exhibit. [*303]

For the above reasons, we find that the husband, in paying the debt in full, intended to do so gratuitously and that he never intended to claim reimbursement.

In the circumstances, the wife is not bound to pay compensation to her husband for the payment by him in full of the amount due under the bond exhibit No.3.

In the result, the claim of the plaintiff against the defendant is dismissed for want of prosecution.

With regard to the counterclaim, defendant No.1 succeeds only with regard to his claim about the bond for £6,000,- and fails with regard to his claim for contribution for the joint debt for £4,000.- which he paid in full.

Regarding the. prayed relief, we are of the opinion that only a declaration in the terms of para. 20 A. of the Counterclaim can be made and we do hereby so declare.

The plaintiff to pay the 2/3rds of the costs of defendant No.1, both regarding the claim and the counterclaim, such costs to be assessed by the Registrar.

No other order as to costs is made, either between the plaintiff and defendant No. 1 , or between the plaintiff and defendant No.2.

Action dismissed. Judgment on

the Counterclaim as aforesaid.

Order for costs as above.

* Phipson on Evidence, 1Oth ed.,para. 1781 .

Phipson ibid, para. 1793.

* Snell’s Principles of Equity, 27th ed., p. 175.

* The case of Heard, v. Pilley, (1869)4 Ch. App.

548 is referred to at the end Of this proposition.

Silver v. Silver, (1958) 1 W.L.R., 259;Snell's (supra) p.178.

* (1949) 2 K.B. 406.

* Fisher v. C.H.T. Ltd. and others, (1965) 2 All E.R.601 ; Cyprus Import Corporation Ltd, v. Kaisis,(1974)12 J.S.C. p. 1234, per Triantafyllides P. at p. 1246 letter 25: " The admissibility of any

evidence taken as preparatory to the hearing under Rule 5 of Order 36 has to be governed by considerations such as those set out in Rule 11 of Order 37 of our Rules of Court. Order 37 Rule 11: ’Except where by this Order otherwise provided or directed by the Court or a Judge, no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may be offered, unless the Court or Judge is satisfied that the deponent is dead or beyond the jurisdiction of the Court or unable from sickness or other infirmity to attend the hearing or trial. In any of these cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence save all just exceptions without proof of the signature of such certificate’.”