EXCEPTIONS FROM AFTER- BILLS AND SEA INSURANCE AGREEMENTS. RECEIPTS. In reference to deeds and instruments which have only a brief temporary currency,—as to some of which a modified rate of duty has in consequence been imposed,-a different rule has been thought necessary; for, if these could be stamped at any time, it would be found that in the great majority of cases the stamp would not be required at all,—the instrument would serve its passing purpose without stamp, and the revenue would suffer. Accordingly we find exceptions to the general rule in the following cases : 1. Bills of exchange and promissory-notes, or other notes, drafts or orders, liable in duty. These writings generally have a short currency. Bills or notes written on stamps of equal or superior value to those required, though of a different denomination, may be stamped with the proper stamp. If produced before being payable, the penalty of forty shillings is exigible; if not till after, the penalty is £10, besides the appropriate duty in either case. Except in the above case, a bill or note unstamped, or not duly stamped, cannot be stamped ;-Act of 1870, section 53. By the former Stamp Acts such a bill or note was null, and the nullity was not removed by the party's admission of his signature to it. It is of importance to keep this in view, in reference to acknowledgments of debt, and to exclude from them any promise to pay; because, if such promise is inserted, and if the amount payable be definite, the document will be held a promissorynote, and, being without stamp, will be inadmissible even as evidence of debt.2 3 2. Policies for sea-insurance may now be stamped after execution on payment of a penalty of £100. A policy of mutual insurance may be stamped with additional duty, provided it shall not be underwritten at the time to an amount exceeding the sums which the stamps already will warrant.* A policy made abroad may be stamped within fourteen days after being received in the United Kingdom.5 3. Agreements, which, as already explained, the Commissioners, as a rule, stamp within fourteen days without penalty; after fourteen days. the penalty is £10, but the Commissioners have power to remit it within twelve months after the date. 4. Receipts and charter-parties cannot be stamped after expiry of one calendar month from their date. Receipts may, however, be stamped within a fortnight after date, on payment of a penalty of £5, and within a month on payment of £10. Charter-parties may be stamped within seven days, on payment of a penalty of 4s. 6d., and after seven days, but within one month after the first execution, on payment 1 Greenock Bank v. Garrock, 12 Dec. 1834, 13 Sh. 190. 2 Menzies, p. 97; M'Intosh v. Stewart, 13 May 1830, 8 Sh. 739; Alexander v. Alexander, 26 Feb. 1830, 8 Sh. 602; Scott v. Scott, 26 Nov. 1834, 13 Sh. 490; Tennent v. Crawford, 12 Jan. 1878, 5 R. 433; Vallance v. Forbes, 27 June 1879, 6 R. 1099. 3 39 Vict. cap. 6, sect. 2. 30 Vict. cap. 23, sect. 9. 533 & 34 Vict. cap. 97, sect. 117; 44 Vict. c. 12, sect. 44. 33 & 34 Vict. cap. 97, sect. 122. of a penalty of £10; the appropriate duty being of course payable in either case. If the charter-party is executed abroad, any party thereto may, within ten days after it has been received in the United Kingdom, affix to it and cancel an adhesive stamp.2 5. Indentures of apprenticeship to a Writer to the Signet, solicitor, INDENTURES. agent, or procurator, in Scotland, may be stamped, if brought to be stamped at any time within five years after date, on payment of penalties graduated according to the distance of time between the date of the deed, and the date at which the stamp is applied for. After five years from the date the penalty is £50.3 6. Proxies and voting-papers cannot be stamped after execution by PROXIES. any person.* PROCEEDINGS. Reference has been already made to the provision of sect. 17 of the CRIMINAL Stamp Act of 1870, in regard to the inadmissibility of an instrument not duly stamped as evidence except in criminal proceedings. The exception was necessary in England. It was not so in Scotland, where it has long been fixed that documents could be founded on as evidence in criminal cases though not on the proper stamp.5 The objection, however, founded on the want of the stamp, though applicable when the document is pleaded on as a deed, does not reach even the same document when it is founded on for collateral effects,-for example, in evidence of a fact. In Erskine's case, counsel said, 'in the Court of Session 'we rested on this as giving a good right; in which case, it must be 'stamped; but here we merely rest on it as a letter,'-and that was allowed to be done. How far the same rule can be extended to a promissory-note, not properly stamped, and which is offered as part of the evidence of a loan transaction, was questioned and not decided, in the case of Pilling.' AFTER STAMPING. In regard to the effect of after-stamping the rules appear to be:- EFFECT OF 1. That the retroactive operation of the stamp is clear and complete, if the deed is not one of those expressly, or by lapse of time, excepted from the power of after-stamping, and, supposing the deed to be founded on in a process, if the proper stamp is affixed before any interlocutor is pronounced. Even in a competition for the trusteeship in a sequestration (which is a continuous process), the Court have allowed a vote, founded on an unstamped document of debt, to be made good by the subsequent stamping of the document, such stamping being prior to the confirmation of the trustee.9 2. If the objection, founded on the want of the proper stamp, be WHO IS LIABLE TO PAY FOR STAMPING A stated before interlocutor, and the interlocutor, on the strength of the unstamped deed, is pronounced notwithstanding, the interlocutor will be reducible.1 3. If the proper stamp is not impressed in due time, the delay may throw the burden of expenses on the party. The question, Who is liable to pay for getting a deed duly stamped? is one of some importance. In the case of a mutual contract, the expense will fall upon the parties equally. But the pursuer or party founding on a deed is in the first instance liable in the expense of stamping it.* In the ordinary case of a unilateral deed, the party holding the deed must make good his own title; and, if a deed which forms part thereof requires to be stamped, he must bear the necessary expense. But a party prosecuted under his own unstamped obligation is liable in the expense of stamping, including the penalty, because he ought to have given a valid obligation at the first; and if the pursuer stamps an obligation by the defender, which the Court hold to have been extinguished before his action was raised, he will not be allowed to recover half the expense of stamping. Lastly, on this branch of the subject, the want of the stamp only affects the validity or operation of the particular instrument itself. It does not affect the right to the debt contained therein, or any separate mode of proof. But Professor Menzies notices that, in the case of an unstamped deed being lost, a serious risk will arise, inasmuch as the tenor of it cannot be proved. This, he says, ' has been found in England, and, although the point has not been tried in our Courts, it appears to 'be certain, upon principle, that a judge could not receive evidence of 'the tenor or contents of a deed, open to an exception which would pre' vent his looking at the deed itself, if produced.'s It has only to be added, that besides referring to the Stamp Act at present in force, in regard to the stamps to be made use of in current practice, it is necessary likewise to have access to the older Statutes in examining existing deeds, and to see that such deeds are engrossed on the proper stamps, if any were required at their dates respectively. It does not seem necessary to refer to the particular provisions of the older Acts further than has been done. These Acts are numerous, and their details very minute; and as, with reference to the framing of deeds, no one ought to proceed without book, so, in regard to the stamp, no one ought to trust to memory. The Acts, or a trustworthy digest, should always be at hand for reference. 1 See Lord Brougham's opinion in affirming the case of Robb v. Forrest, 9 July 1830, 8 Sh. 1035; affirmed 3 Oct. 1831, 5 Wil. & Sh. App. 740. 2 Ross v. Webster, 18 Jan. 1834,12 Sh. 308. 3 Smail v. Potts, 16 July 1847, 9 D.1502; Logan ". Ellice, March 1850, 12 D. 841. Neil v. Leslie, 19 March 1867, 5 Macph. 634. 5 Munro v. Hogg, 18 Dec. 1830, 9 Sh. 225; Macpherson v. Macpherson, 7 Feb. 1855, 17 D. 357. 6 Gardiner's Executrix v. Bennet, 28 Nov. 1839, 2. D. 155; Cheyne v. Macdonald, 20 June 1863, 1 Macph. 960. 7 Hislop v. Thomson, 20 March 1878, 5 R. 794. 8 Menzies, p. 96. TITLE IX. THE CLAUSES COMMON TO MOST DEEDS, AND RULES AS CHAPTER I. We have now to consider the clauses common to, and usually framed on similar principles in, most deeds. The first of these is technically called the Narrative. OF GRANTER. The Narrative, or introductory clause, of a deed, usually contains— NARRATIVE. (1.) The name and designation or description of the granter of the deed; (2.) The consideration or cause of granting; and (3.) The name and designation or description of the immediate grantee. The place of abode, as well as the designation, of the granter requires to be stated in DESIGNATION Deeds of Consent under the Entail Amendment Act of 1848,1 and relative Act of Sederunt, 18th November 1848. In other cases (not being those of bills and promissory-notes, in which the parties' designation seldom appears), though it is not equally essential to describe the granter in the deed, the only correct practice is to do so, and the description should be such as clearly to identify the party, and to distinguish him from all others. This, as in the case of the witnesses, is best done by specifying his full Christian name and surname, occupation, and residence; but there is this material distinction between the two cases, that the designation of the witnesses in the deed is a statutory solemnity, which cannot be supplied by condescendence or proof apart; the designation of the granter may be so, or may be arrived at by implication,-except in Deeds of Consent under the Entail Amendment Act. Thus, where a bond was granted simply by Alex'. Murray,' the holder was obliged to prove that the person of that name from whom he claimed payment was the subscriber. And in various cases of imperfect, or even, to a certain extent, incorrect names or designations, the rule has been acted on that it is sufficient dummodo constet de persona,' which you will recollect is the rule in reference to the writer of the deed and 111 & 12 Vict. c. 36. 2 Milne v. Murray, 15 Feb. 1665, M. 11,657. 2 a The designation of the witnesses is still a statutory solemnity, but may now be appended to their subscriptions at any time before the deed is registered for preservation, or judicially founded on, and need not be written by the witnesses themselves37 & 38 Vict. cap. 94, s. 38. NARRATIVE CLAUSE. DEEDS OF witnesses.1 Guthrie's case was that of a messenger-at-arms, named in a 6 In some classes of deeds the introductory clause does not name and design the granter. These are deeds by a number of parties whose names cannot be given, or, it may be, are not known at the time the deed is engrossed for signature; for example, deeds of accession by creditors or their mandatories to trust-deeds by debtors for their behoof; deeds of constitution of joint-stock companies; composition-contracts in sequestrations, or the like. It is usual in such deeds, where the same character belongs to all the subscribers, to express that character in this clause; as, for example, ' We, the subscribers, creditors, or mandatories 'for creditors, of A. B., etc., in debts entitled to the benefit of the trust, 'created by the trust-disposition after narrated,' etc. The full names. and designations are inserted, in these cases, in the testing clause. When the deed is granted by tutors, factors, trustees, or others, acting under special powers, the narrative or introductory clause will set forth the character of the granters, and will also set forth, or duly refer to, the deeds and powers under which they act, as well as the granters' own names and designations. 1 Scottish Union Insurance Co. V. Calderwood, 8 March 1836, 14 Sh. 667; see also Guthrie v. Munro, 27 Feb. 1833, 11 Sh. 465. |