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Cite as: [1899] ScotLR 36_538, [1899] SLR 36_538

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SCOTTISH_SLR_Court_of_Session

Page: 538↓

Court of Session Inner House First Division.

Friday, March 10. 1899.

36 SLR 538

Distillers' Company, Limited,

v.

Inland Revenue.

Subject_1Revenue
Subject_2Stamp
Subject_3“Warrant for Goods”
Subject_4Stamp Act 1891 (54 and 55 Vict. cap. 39), sec. 111 (1), and First Schedule.
Facts:

A firm of distillers wrote to Messrs A B as follows:—“We beg to acknowledge receipt of delivery-order dated 31st October 1898, granted by Messrs Y Z in your favour, and we have to intimate that rent on the casks therein specified will be charged to you from 31st October 1898, the goods having been transferred to your name as at that date. Note.—This acknowledgment is given subject to the company's statutory right of lien, and to their stipulated right of lien, and other conditions specified on the back hereof.”

Held that this instrument was a “warrant for goods,” and therefore liable to a stamp-duty of threepence under the Stamp Act of 1891, sec. 111, sub-sec. (1), and First Schedule.

Headnote:

This was a case stated on appeal by the Distillers' Company, Limited, against a determination of the Inland Revenue Commissioners that the following instrument was chargeable as a warrant for goods with a duty of threepence, under the Stamp Act 1891, sec. 111 (1):—

“ Caledonian Distillery,

Edinburgh, 3 rd Nov. 1898.

Messrs D. & J. Robertson, Edinburgh.

Dear Sirs,—We beg to acknowledge receipt of delivery-order dated 31st October 1898, granted by Messrs Stodart & Wilson, Leith, in your favour, and we have to intimate that rent on the casks therein specified will be charged to you from 31st October ’98, the goods having been transferred to your name as at that date.—We are, dear Sirs, yours obediently, The Distillers' Coy. ( Ltd.), per T. T. Sutherland. Note.—This acknowledgment is
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given subject to the company's statutory right of lien, and to their stipulated right of lien or retention, and other conditions specified on the back hereof.”

The conditions on the back of the instrument bore, inter alia, that the company should have a right of lien or retention over the spirits not only for their price and for warehouse rent, but also for any debt due to the company by the person claiming delivery.

The delivery-order referred to in the instrument was in these terms:—

“1419. Leith, 31 st October 1898.

Messrs Distillers' Co., Ltd.,

Caledonian Distillery.

Stodart & Wilson,

Dear Sirs,—Please deliver the underquoted eleven butts seven hhds. and six qrs. Caledonian whisky to the order of jg Messrs D. & J. Robertson, Edinburgh.—And much oblige, yours faithfully,

Stodart & Wilson,

D). David Stodart.

One penny

Nos.

7123/4, 8577/85

10,098/10,110.

Bonding Date.

April

May '96.”

It was granted upon a sale or transfer of the goods, and was impressed with a stamp denoting the duty of one penny.

The case stated that “the whisky in question was originally sold by the Distillers' Company upon an ordinary trade invoice, specifying the number of casks, and has since remained in the company's warehouses. According to the custom of the trade, where such whisky is removed by the original purchaser, no delivery-order is required. “Where the original purchaser does not remove the whisky, but sells or transfers it, he grants a delivery-order in favour of the sub-purchaser or transferee. The sub-purchaser or transferee presents the order to the company, and if he does not remove the whisky he in turn receives an acknowledgment of receipt of the order. The acknowledgments of receipt or intimation of delivery-order issued by the company are not used or transferred in subsequent transactions relating to the whisky by the parties to whom they are addressed. In each subsequent transaction a fresh delivery-order is granted.”

The ground of the appeal was that “as the document in question did not specify the goods, was not in suitable form for transfer, and was not in practice transferred along with the delivery-order or deliveryorders relating to the whisky, it could not be regarded as a ‘warrant for goods’ within the meaning of the Stamp Acts, or as the proper evidence of an assignable title to property free from liens, but was simply an acknowledgment of the intimation of a delivery-order,”

The question stated for the opinion of the Court was, “Whether the said instrument, in the circumstances set forth, was liable to be assessed and charged with the duty of 3d. applicable to a warrant for goods?”

The First Schedule of the Stamp Act 1891 (54 and 55 Vict. c. 39) imposes the following duties:—

Delivery Order £001

And see sections 69, 70, and 71

Warrant for Goods 003

Exemptions—

(1) Any document or writing given by an inland carrier acknowledging the receipt of goods conveyed by such carrier.

(2) A weight-note issued together with a duly stamped warrant, and relating solely to the same goods, wares, or merchandise.

“ And see section 111.”

Sec. 111, sub-sec. (1), of the same statute enacts—“For the purposes of this Act the expression ‘warrant for goods’ means any document or writing, being evidence of the title of any person therein named, or his assigns, or the holder thereof, to the property in any goods, wares, or merchandise lying in any warehouse or dock, or upon any wharf, and signed or certified by or on on behalf of the person having the custody of the goods, wares, or merchandise.”

Argued for the appellants—The determination of the Commissioners was wrong. The instrument in dispute was not a document of title. It was a mere acknowledgment of intimation of a delivery-order. In order to make it a document of title there must be a specification of the res transferred, or a reference to some writing under the hand of the warehouseman specifying the goods. Without such specification there was no transference in the property of the goods—Sale of Goods Act 1893 (56 and 57 Vict. c. 71), sec. 16, et seq. The warehouseman's lien here was especially reserved, and “warrant” in its usual sense implied something that should pass from hand to hand for value by indorsement free from any claim or lien— Merchant Banking Co. of London v. Phœnix Bessemer Steel Co., L.R., 5 Ch. Div. 205, per Jessel, M.R., 215; Gunn v. Bolckow, Vaughan, & Co., L.R., 10 Ch. 491; Morrison, 1859, Bell's Cr. C. 158, 28 L.J., Mag. Cas. 210. The present instrument certainly did not fall within the definition of “(document of title” given in sec. 1 of the Factors Act 1889 (52 and 53 Vict. c. 45). In the Stamp Act 1860 (23 Vict. c. 15) what were called “dock warrants were made liable to a 3d. stamp. The definition of “dock warrant” was almost identical with the definition of “warrant for goods” in the 1891 Act. In the Stamp Act of 1870 (33 and 34 Vict. c. 97) “dock warrant” disappeared and “warrant for goods” took its place. But since 1860 this stamp-duty had never been exacted on such instruments as the one under consideration, which afforded some ground for the view that the duty was not really exigible— Clyde Navigation Trustees v. Laird & Son, July 19, 1863, 10 R. (H.L.) 77, per Lord Blackburn 81.

Argued for the respondents—The instrument might or might not be a document of title in the strict English legal sense, but it was evidence of title, which was what the Act required. Granted that the title was
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burdened with the warehouseman's lien, the evidence of title was equally conclusive, at all events, in a question between the transferee and the warehouseman—Benjamin on Sales (4th ed.) 786; and Connal v. Loder & Others, July 17, 1868, 6 Macph. 1095, referred to. The language of the Act of 1891 was perfectly unambiguous—See Tennant v. Inland Revenue, March 14, 1892. 19 R. (H. of L.) 1, per Ld. Ch. Halsbury, 3.

At advising—

Judgment:

Lord President—In my opinion the Commissioners are right.

The theory of the section imposing the duty demanded is that a warehouseman can grant to the owner of goods a writing which is evidence of title to the goods, and I do not see what better could be granted by a warehouseman than such an acknowledgment as that now in dispute. The argument against the decision was that this writing is not the proper evidence of title, the true title being that which is granted by the seller of the goods. But then this argument really means that a warehouseman cannot, in the nature of things, give a title to goods which of course never belonged to him in his quality of warehouseman. The statute, however, in the section before us, says that he can give a writing which is evidence of title, and, as I have said before, I do not see that any more direct evidence of title could be given by a warehouseman than the writing in question. The fact that the writing does not on its face specify the particular articles but refers for this to the delivery-order does not seem to me to affect the question. That you are referred by this writing to another document for the description of the subjects need not in this, or in any other kind of title, deprive it of its validity as evidence of title. In a question with the warehouseman it is direct evidence of title.

Lord Adam concurred.

Lord M'Laren—If the warehouseman—in this case I presume the maker of the spirits—had merely acknowledged the delivery-order that was sent to him, I think that acknowledgment would not have been a warrant in the sense of the taxing statute, because it would have left the warehousekeeper or custodier perfectly free to set up any counter-claim or charge upon the right of the transferee. By merely acknowledging intimation the custodier does not bind himself to anything. But then this deed does more, because it acknowledges that by virtue of the delivery-order the transferee has acquired right to the whisky, subject to no other condition than the payment of warehouse rent during such time as the whisky may remain undelivered. It was therefore, in a question between the transferee and the warehouse-keeper, evidence—I think conclusive evidence as between them, but at all events evidence—that the right of the transferee was acknowledged by the warehouse-keeper, and I cannot doubt that the person who holds such a document is in a better position for transferring the spirits than he would be if he merely held a delivery-order with a simple acknowledgment of intimation. It appears to me, then, as it does to your Lordship, that this is a document of the kind described in the Taxing Act as a warrant evidencing title to the goods. I think it is evidence of title, even although that evidence should be unavailing in a question with outside persons, but good evidence in a question between the grantee of the delivery-order and the warehouse-keeper who is called upon to deliver.

Lord Kinnear concurred.

The Court confirmed the assessment of the Commissioners of Inland Revenue.

Counsel:

Counsel for the Appellant— D.-F. Asher, Q.C.— W. C. Smith. Agents— Fraser, Stodart, & Ballingall, W.S.

Counsel for the Respondent— L.-A. Murray, Q.C.— A. J. Young. Agent— P. J. Hamilton Grierson, Solicitor of Inland Revenue.
1899