Scottish Court of Session Decisions

This was an information brought before the

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Lord Ordinary on Exchequer Causes at the instance of the Lord Advocate, on behalf of the Inland Revenue, under the Stamp Act (33 and 34 Vict. c. 97), sec. 23, against James Scott, Prestonpans.

The first count charged him with having on 27th September 1884 written or signed, or caused to be written or signed, a receipt for payment of a sum exceeding £2 (being £7), and therefore liable to stamp-duty under the Act, without a stamp being impressed on the paper, or an adhesive stamp being affixed thereto as by law directed, whereby he was liable in a penalty of £10. A second count charged him with having on the same occasion refused, when requested, to give a stamped receipt for the said £7, whereby he was also liable in a penalty of £10.

The prosecution proceeded on the statement to the authorities of George Kell, a quarrymaster, who employed the defender to win stone. On the date in question he owed the defender £7, 0s. 8d., for stone wrought for him, and paid him that money. Kell swore that defender then wrote on an unstamped piece of paper a receipt, which was produced in process, and said he would give a stamped receipt afterwards, and that he afterwards asked him for one several times, but not getting it, gave information, because he was afraid he would be asked for the money again.

The only corroboration of this account was that in a letter which the defender wrote to the solicitor of Inland Revenue in answer to a letter from him it was not alleged that any receipt was granted, and that this letter was in writing very like the receipt which Kell produced to the officials as defender's. The receipt, however, was roughly done in blue pencil.

The defence was that a stamped receipt was really granted, and a pass-book was produced containing a receipt properly stamped. The defender swore that this book was kept by him for his course of transactions with Kell, and the receipt properly entered in it; that what Kell paid was part only of what was due; and that it was found necessary to summon Kell and get decree against him for the balance. A labourer who worked with defender swore that such a book was kept.

The Lord Ordinary decerned against the defender conform to the first count of the information.

The defender reclaimed, and argued—The onus of proving that the receipt in question was given by the defender to Kell lay upon the pursuer. The onus was doubly heavy, because the action was for recovery of a penalty. The pursuer had only the evidence of a single witness, whose evidence was directly contradicted by the defender. There was no corroboration of Kell's evidence save the similarity of handwriting. This was at best but slight corroboration, and to rely upon it alone would be dangerous. Moreover, the corroboration required was that of facts and circumstances wholly extrinsic of the witness whose testimony is to be corroborated, and here it was not extrinsic. The defender here was at a disadvantage in the matter of comparatio literarum, because the receipt in question was written, not in ink but in coarse blue pencil, which rendered forgery more easy and detection more difficult. There was no unreasonableness in supposing forgery here, as there was evidently a strong animus on the part of Kell against the defender, who had to sue Kell to recover the balance of his account. Kell's evidence was not corroborated, but even contradicted, not only by the defender but by the defender's witness, who was at one with defender in stating that it was part of the arrangement between them and Kell that they should keep an account in their book of work done and payments made under the contract; and although Kell denied any such arrangement, the book produced shewed that such an account had in fact been kept; and that it was part of the arrangement was shewn by the fact that on no other occasion save on this one of 27th September had Kell ever asked for or obtained a receipt although he had often made larger payments than the one in question. On the balance of proof the defender's case was the stronger, and, in any view, the pursuer had failed to discharge the onus incumbent upon him.

Replied for respondent— Comparatio literarum was a good test in a case like the present. The handwriting in Scott's letter to the Treasury was wonderfully like that in the unstamped receipt. Then there was the evidence of Kell; if he was to be believed, there was an end of the case for the reclaimer, and there was no ground for saying that he was not giving a true account of what took place.

At advising—