Scottish Court of Session Decisions

This was an action raised in the Sheriff Court at Aberdeen by the executrix of Charles Durie against Henry Fielding for payment of the sum of £200, with interest from Whitsunday 18690, being the amount of a loan which the pursuer alleged that

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the deceased Charles Durie had made to the defender.

The defender admitted that he had received the alleged loan, but stated—“In or about November 1889 the late Mr Durie obtained from the defender and his two sisters a bill for the debt now sued for. The said bill remained with him till the month of July 1890. The said bill, which is dated 22nd November 1889, represents and is in point of fact the sum now sued for. The said bill is the property and is in the possession of Miss Maggie Fielding, as after mentioned, and the sum therein belongs to her. In May 1890 the defender paid to the said Charles Durie £5, being the half-year's interest on said loan to May 1890, which sum the said Charles Durie remitted to the said Miss Maggie Fielding. In or about July 1890 the said Charles Durie wrote to the said Miss Maggie Fielding, with said bill, and giving her the same as a gift, to be used by her as her own absolute property. The said bill (which is endorsed by the said Charles Durie) has been in her possession ever since, and is herewith produced and referred to, and the defender has paid interest thereon since then to his sister the said Miss Maggie Fielding.”

The defender pleaded—“(3) The pursuer's author having gifted the sum sued for to a third party, the defender is not liable therefor to the pursuer.”

The result of the proof was as follows—Charles Durie was an intimate friend of the Fielding family, and was engaged to be married to the defender's sister Maggie. Towards the end of 1889 he lent the defender sums amounting to £200. In a letter sending part of this sum he enclosed a bill for £205, drawn by him upon the defender and his two sisters, the extra £5 representing the first half-year's interest on the loan. This bill the defender and his sisters accepted and returned, and the first half-year's interest was paid by the defender to Durie at Whitsunday 1890. Durie died on 6th November 1890. At the date of his death the bill, blank endorsed by him, was in the possession of Miss Maggie Fielding. The stamp upon it was one applicable to a bill for £200. Apart from the fact that the bill was in Miss Maggie Fielding's possession, the only material evidence in favour of donation was that of the alleged donee herself.

Section 17 of the Stamp Act 1870, provides—“Save and except as aforesaid, no instrument executed in any part of the United Kingdom, or relating, wheresoever executed, to any property situate, or to any matter or thing done or to be done in any part of the United Kingdom, shall, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed.”

On 20th June 1892 the Sheriff-Substitute ( Robertson) pronounced this interlocutor:—“Finds, in point of fact (first) that the pursuer's author Charles Durie lent to the defender the sum of £200 sterling, and that the said sum has not been repaid; (second) that it has been averred by defender that pursuer is not the true creditor, in respect the said debt was while due by defender given and transferred by the said Charles Durie to Miss Margaret Fielding, defender's sister; (third) that a bill was produced by defender for £205, drawn by Charles Durie upon and accepted by defender, and by his sisters Margaret and Mary Ann, which was endorsed by Charles Durie, and which it was averred had been granted in respect of the said loan of £200, and had been afterwards given by Charles Durie to Margaret Fielding: Finds in fact and law (1) that the said bill was insufficiently stamped and cannot be looked at by the Court to any effect whatever; (2) that defender has failed to prove otherwise donation of the said sum of £200 to Margaret Fielding: Therefore finds that defender is liable to pay said sum to pursuer, and decerns against him in terms of the conclusions of the action: Finds the pursuer entitled to expenses, &c.

“ Note.—[ After narrating the facts of the case]—These are the facts as disclosed by the proof, and there appears to me to be no reason to doubt the story told by the Fieldings. Their appearance in the witness-box was, in my opinion, in their favour, and I have little doubt that Miss Margaret was telling the truth when she says that Mr Durie sent her the bill, and I have further little doubt of what his intention was in so sending it. The case would in my view have been clear, but unfortunately the bill is not sufficiently stamped. The stamp upon it is one applicable to £200, which probably was the sum intended at first to be on the bill, but Mr Durie for some reason appears to have added the sum of £5 for the half-year's interest, and the bill is one of £205, and the stamp is insufficient. The main question in the case therefore is, whether in these circumstances the Court can look at the bill to any effect at all, and if not, the further question remains whether defender has otherwise instructed that the £200 was given to Miss Margaret Fielding. The words of the statute are very plain—‘No instrument shall be pleaded or given in evidence, or admitted to be good, useful, or available in law or equity, unless it is duly stamped.’ There is, so far as I have found, or has been quoted to me, no case where a bill insufficiently stamped or unstamped (which of course is incurably void) has been looked at by the Court. The Court refused to look at such a bill in the case of the Greenock Banking Company v. Darrock, December 12, 1834, 13 Shaw, 190. Lord Gillies in disposing of that case said as follows—‘The bill must be laid entirely aside, and the pursuers must adduce evidence independently of it that the defender lies under an obligation to them.’ And the same result was arrived at in Ogilvie v. Taylor, December 7, 1849, 12 Dunlop, 266. The Lord Justice-Clerk (Hope) remarked in that case—‘A bill without a stamp is not produceable, and cannot be founded on to any effect.’ Lord Moncreiff in giving judgment said—‘I do not find it an easy

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matter to hold that this is legal proof of the debt without any aid taken from the bill of exchange, which cannot be used in evidence and which we cannot look at;’ and further, ‘I am not aware of any case in which it has been held that an inland bill not stamped can be used to prove a debt to any effect whatever.’ These cases seem to me very much in point in this question. In the case of Mathieson v. Ross, March 27, 1849, 6 Bell's App. 374, the House of Lords allowed a document of the nature of a receipt to be looked at (it being unstamped), not as tending to show the payment of the sum of money referred to in it, which was admitted, but as showing the state of accounts between the parties at the time, and it is there laid down that an unstamped receipt may be looked at when it is used for a ‘collateral purpose’— i.e., when it is not in any way used as showing the receipt or payment of money, but, as was the case there, where it is proposed to be used in proving the state of accounts. Lord Campbell in that case was doubtful even of the extent to which the judgment of the Court went, stating, as his criterion of the possibility of such a document being used in evidence, not whether the party founding on it seeks to make use of it as a receipt, but whether it can be made use of as a document to settle any question litigated between the parties, and if the sum in the receipt in that case had been litigated, he indicated he would not have allowed the use of the document. Whether the rule laid down in that case could apply here seems to me, in any case, doubtful. A bill without a stamp is absolutely null and void, and, according to the cases already quoted, it seems to me open to question whether it would be looked at by the Court except for some such purpose as to the identification of handwriting; but even if the rule in Mathieson was applicable to a bill, it could not apply here. No doubt the bill is not attempted to be enforced; it is not founded on in that sense; but the sum in the bill is litigated between the parties, and the possession of the bill is founded on as proving the transference of money. This seems to me to bring the case directly within the words of the statute. That being so, in my opinion the question remains, whether, putting the bill out of sight altogether, there is sufficient evidence of donation, and on this point I have felt constrained to hold, though with great regret, and a feeling that it may quite well be contrary to the justice of the case, that donation has not been proved. So far as I see, the only evidence, or only material evidence, is that of the alleged donee herself, and that with the legal presumption against donation is not sufficient.” …

The defender having appealed, the Sheriff ( Guthrie Smith) on 28th June pronounced this interlocutor:—“Recals the said interlocutor: Finds (1) that the defender Henry Fielding being indebted to the late Charles Durie in the sum of £200, granted on 22nd November 1889, along with his two sisters Mary Ann Fielding and Maggie Fielding a bill for £205, being the amount of said debt and interest for six months; (2) that at Whitsunday 1890, when a further sum of £5 of interest fell due, the same was paid by the defender and noted on the back of the bill at his request by the said deceased; (3) that a few days after Mr Durie sent the £5 which he had received for interest to Margaret Fielding, and later in the year sent her the bill, blank indorsed, accompanied by a letter which has not been preserved, but which was to the effect that the bill was hers, and she should put it in one of her most private places; (4) that the bill has been in her possession ever since and was so at the date of this action: Finds in law that these facts amount to a pactum de non petendo on the part of the deceased, either as regards the bill or the debt for which it was granted, and that this action at the instance of his executrix is not maintainable: Therefore assoilzies the defender from the conclusions of the action: Finds the defender entitled to expenses,” &c.

The pursuer appealed, and argued—The bill being insufficiently stamped was an absolute nullity, and could not be received in evidence for any purpose— Greenock Bank v. Darrock, December 12, 1834, 13 S. 190; Ogilvie v. Taylor, December 7, 1849, 12 D. 266; Walker v. Speirs, May 16, 1834, 12 S. 586; Sweeting v. Halse, 1829, 4 M. & R. 287; Jones v. Ryder, 1838, 4 M. & W. 32; Castleman v. Ray, 1801, 2 Bosanquet & Puller's Rep. 383. At all events the bill could not be looked at as evidence of the transfer of a debt or money obligation, and that was the purpose for which the defender asked the Court to look at it— Mathieson v. Ross, March 27, 1849, 6 Bell's App. 374. Setting the bill aside, the evidence in favour of donation was insufficient, and the pursuer was therefore entitled to the decree she sought.

Argued for the defender—Although the bill was insufficiently stamped, and could, therefore, not be founded on as evidence of the existence of the money obligation contained therein, it could be founded on for the collateral purpose of proving the alleged donation— Paton v. Earl of Zetland, May 24, 1843, 5 D. 1049; Mathieson v. Ross, supra. There had been no intention in the present case to evade the Revenue laws by understamping, and it was not the duty of the Court to strain the construction of a Stamp Act so as to deprive a litigant of the means of evidence, per Lord Brougham in Mathieson's case, 6 Bell's App. 386. The possession of the bill by the defender's sister, even though no action could proceed upon it, was strong evidence that the deceased had made her a donation of the debt in respect of which the bill had been granted— Macvean v. Maclean, June 26, 1873, 11 Macph. 764; Bills of Exchange Act, 1882, 45 and 46 Vict. cap. 61, sec. 21 (3).

At advising—