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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Grant v Grant [1837] CS 16_246 (16 December 1837) URL: http://www.bailii.org/scot/cases/ScotCS/1837/016SS0246.html Cite as: [1837] CS 16_246 |
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Page: 246↓
Subject_Stamp—Process.—
A landlord, in an application for interdict against his tenant, founded on missives of lease, and on a relative submission and award, which submission had been entered into, in terms of the missives, and for the purpose of explaining them: the tenant pleaded on the import of these documents, and also raised a reduction of the award as being ultra vires, and as being unstamped: Held, that, as the landlord was in petitorio, and founded on all the documents, they must be stamped in the first instance at his expense.
Walker, Grant, and Company entered into possession of certain distillery premises at Aberlour, under unstamped missives of tack, which provided that, in the event of a difference occurring between their landlord and them as to the import of the lease, it should be referred to arbitration. A difference occurred, and was made the subject of a reference and award, which were not stamped. Alexander Grant of Aberlour, the landlord, afterwards presented a petition for interdict to the Sheriff of Elgin against Walker, Grant, and Company, alleging that they were making an unwarrantable use of part of their premises, and founding on the lease, and the reference and award. Walker Grant and Company resisted the application. The Sheriff assoilzied, and Grant brought an advocation, in which a record was made up. In that record Walker, Grant, and Company admitted that their possession was in virtue of the unstamped missives of lease, and that the submission and award had been entered into under the conditions contained in the missives; and they, as well as Grant, pleaded on the import and effect, both of the missives of lease and the award. But they also alleged the award to be ultra vires of the arbiter, and they raised a reduction of it, inter alia, in respect of its being unstamped. When the record in the advocation was closed, Walker, Grant, and Co. objected that Grant could not found either on the missives of lease or on the submission and award, as they were unstamped; and they contended that all these documents ought to be stamped by Grant in the first instance, as he was in petitorio, and obliged to found on them, and, in order to enable him to do so, they must first be stamped. Grant answered that unless Walker, Grant, and Co. submitted to be treated as mere intruders, and precarious possessors, they must found on some title of possession; but they had no title except the missives of lease, and relative submission and award: they had also pleaded on these documents on the record, and therefore the expense of stamping them ought to be mutual.
The Lord Ordinary “appointed the missive articles and conditions of tack and minute of reference and award, to be stamped at the mutual expense of the parties.”
Walker, Grant, and Co. reclaimed, and the Court “recalled the interlocutor reclaimed against, hoc statu, and remitted the cause again to the Lord Ordinary to hear parties, and do therein as shall be just.”
Under this remit the Lord Ordinary “appointed the missive articles and conditions of tack to be stamped at the expense, in the mean-time, of the advocators; and the minute of reference and award to be stamped at the expense, in the mean-time, of the respondents, reserving the ultimate determination of these expenses for future consideration.” *
Walker, Grant, and Co. again reclaimed, and urged, inter alia, that as they had raised a reduction of the submission and award on the ground of being unstamped, they could not be compelled to stamp them.
_________________ Footnote _________________
* “ Note.—The Lord Ordinary, when he proposed to pronounce the former interlocutor of 11th March, 1837, against which a reclaiming note was lodged, understood it to be distinctly acquiesced in, as the best intermediate arrangement by both parties.
“It was explained to him that the object of the remit, was to give them an opportunity of making out their respective sides of the case, if they could, without these now unstamped documents,—the experiment was tried and neither of them could advance a single step.
“But, although they had been able to have cleared themselves of them entirely in argument, the Lord Ordinary would have been of opinion that this would have been insufficient; because they both found upon them in every part of the record; and he apprehends that a party who has founded on an unstamped writing, in his record, which ought to be stamped, has already used that writing judicially, so as to make it the duty of the Court to require a stamp, or to reject the document. The skill of avoiding the document in debate, is, after this, insufficient to evade the law.
“As both found on all the three writings, the Lord Ordinary formerly thought that they ought both to pay. But since he is compelled to divide the burden in the first instance, he thinks that, in the circumstances, the fairest thing is to make the landlord pay in the mean-while for stamping the lease, and the tenants for stamping the reference and award.”
The Court then altered the interlocutor to the effect of finding that the minute of reference and the award, as well as the missives of lease, must be stamped at the sole expense of Grant in the mean-time; and subjected Grant in the expense of the discussion in the Inner-House.
Solicitors: J. M'Innes, S.S.C.— Roy and Wood, W.S.—Agents.
