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Cite as: [1867] SLR 3_319_1, [1867] ScotLR 3_319_1

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SCOTTISH_SLR_Court_of_Session

Page: 319↓

Court of Session Inner House First Division.

Tuesday, March 19. 1867

3 SLR 319_1

Neills

v.

Leslie.

Subject_1Stamp Duty
Subject_2Mutual Deed.

Facts:

Held (alt. Lord Mure) that unstamped missives of sale betwixt the pursuer and defender of an action which were founded on by the pursuer alone, fell, in the first place, to be stamped at the expense of the pursuer.

Headnote:

This was an action for implement of a missive of sale and purchase. After a record had been made up and evidence led in the cause, the Lord Ordinary (Mure) ex proprio motu took the objection that the document founded on was not stamped, and appointed the stamping to be done “at the joint expense of parties.”

The defender reclaimed.

John M'Laren, for defender, argued—The interlocutor appoints the stamping to be done at the joint expense of parties now. The defender does not found on the document, and is willing that the case be decided irrespective of it. In such circumstances, the pursuers as alone founding on the document, ought, in the first instance, to have the document stamped at their individual expense, leaving the question of ultimate liability to be determined at the end of the case.

W. N. M'Laren, for pursuers—The interlocutor may be read in either of two ways—(1) as disposing finally of the question of expense of stamping; or (2) as determining only ad interim upon it. In either view it is correct. The penalty and expenses of stamping are fiscal matters, and not, properly speaking, expenses in a cause. The document is of the nature of a mutual contract, and should be stamped at the joint expense of the parties.

The following authorities were referred to:— Smaill v. Potts, 16th July 1847, 9 D. 1502; Flowers v. Graydon, 18th Dec. 1847, 10 D. 306; Law v. M'Laren, 20th July 1849, 11 D. 489; Logan v. Ellice, 6th March 1850, 12 D. 841; Wylie & Lochhead v. Times Assurance Co., 15th March 1861, 23 D. 727; Grant v. Walker, Grant, & Co., 16th Dec. 1837, 16 S. 246.

At advising,

Judgment:

The Lord President—The interlocutor of the Lord Ordinary in this case was, during the argument, subjected to various interpretations, and therefore the first thing we require to do is to ascertain its meaning. What he does is this, “sists process for ten days in order that the minute of sale No. 10 of process may be stamped, and appoints the same to be done at the joint expense of parties.” The minute of sale is the pursuer's ground of action, and what I understand his Lordship by this interlocutor to intend is that, in order to make that minute of sale evidence, the parties are to get it stamped at their joint expense. So construing the interlocutor, I think it is ill-founded, and I think, moreover, it is unprecedented. Among the various authorities that were cited in support of the interlocutor, I find none that does support it. The stamp laws provide that when a document is offered in evidence which ought to be stamped and is not, no court of law shall look at it to any effect. The natural inference is, that when a party tenders the document in evidence it is stamped, but, if it is not, some delay may be allowed, and generally is as a matter of indulgence to him, to enable him to get it stamped. Now, if there had been a practice to

Page: 320↓

the effect that when the writing was a mutual one, the stamping must be got done at the joint expense of the parties to it, I would not have been for disturbing it; but, in the absence of that practice, I think it clear that the pursuers must bear the expense, in the first place, of what is indispensable to their using the document as they propose. The authorities cited have all reference to questions as to liability for stamping arising at the end of a cause. Such was the point in the cases of Smaill, Flowers, Wylie & Lochhead, and Logan. I think these cases have nothing to do with the present; still less has the case of Law. But I think the case of Grant v. Walker, Grant, & Co. was decided upon a principle which we ought to apply here. It was a case of a landlord and tenant. The landlord was in petitorio, and he was held bound to get any document stamped that was necessary for his case. The reason was thus expressed by Lord Corehouse—“If Grant could say that there was any of the documents on which he did not found, while Walker, Grant, & Co. founded on it, then the expense of stamping such documents might, in the meantime, be laid on Walker, Grant, & Co. But, in place of this, Grant founds on all the documents in making his application to the Court, and he must pay for stamping them at least in the first instance.” That statement, I adopt; therefore I am for recalling the Lord Ordinary's interlocutor, and remitting to him to give the pursuers an opportunity of getting this document stamped at their own expense.

The other Judges concurred.

Interlocutor altered with expenses.

Counsel:

Agent for Pursuers— J. M. Macqueen, S.S.C.

Agents for Defender— White-Millar & Robson, S.S.C.
1867