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Scottish Court of Session Decisions >>
William Drew and Patrick M'Millan, v David Manson. [1787] Mor 653 (31 January 1787)
URL: http://www.bailii.org/scot/cases/ScotCS/1787/Mor0200653-052.html Cite as:
[1787] Mor 653
Subject_1 ARBITRATION. Subject_2 Formalities of the Deed of Submission and Decree-Arbitral.
William Drew and Patrick M'Millan, v. David Manson
Date: 31 January 1787 Case No. No 52.
Both submission and decreet-arbitral may be lawfully written on the same sheet of stamped paper.
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Drew and M'Millan instituted against Manson a reduction of a decreet-arbitral, on this ground, That it was written on the same sheet of paper with the submission, and not on a separate sheet of stamped paper, in terms of the statute 23d Geo. III. c. 58. which enacts, “That for every piece of vellum or parchment, or sheet or piece of paper, upon which shall be ingrossed, written or printed, any award, there shall be charged a stamp-duty of five shillings.”
Pleaded for the defender: 1mo, A decreet-arbitral in the Scotch form is not comprehended under the word ‘ Award,’ which is an expression peculiar to the law of England; and therefore, though the thing signified were the same in both countries, still the statute would not reach beyond the proper acceptation of the term. This strict limitation has accordingly obtained in practice with respect to the other stamp-acts. But, 2do, As the submission is written on paper paying the requisite duty; and as both submission and decreet-arbitral constitute one individual contract, the latter has been properly ingrossed on the same paper with the former; and there is no ground for the objection as to the stamp-duty.
Answered: 1mo, The word ‘Award’ is an expression used by the writers on the law of Scotland as synonymous with that of decreet-arbitral. 2do, The contract by which parties submit to the decision of an arbiter, and the decree pronounced by the arbiter, are things evidently distinct and separate from each other; and the writing of two different deeds on the same sheet of stamped paper is a direct transgression of the law.
The Lord Ordinary found, ‘That the deed in question is not duly stamped and therefore reduced in terms of the libel.’
A reclaiming petition against this judgment having, with answers, been advised by the Court, it was
Observed on the Bench: Submissions and decreets-arbitral forming together the essential contract of the parties, have been usually written on the same sheet of paper. Nor do the late statutes appear to introduce any change in this matter.
The Lords therefore altered the Lord Ordinary's interlocutor, and repelled the above mentioned reason of reduction. (See Writ.)
Lord Ordinary, Hailes.Act. M'Cormick.Alt. Dean of Faculty.Clerk, Sinclair.
Fol. Dic. v. 3. p. 36. Fac. Col. No 302. p. 466.
