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John M'Donald of Braickish, v John M'Donald of Clanranald, and his Tutors and Curators. [1778] Mor 16956 (14 February 1778)
URL: http://www.bailii.org/scot/cases/ScotCS/1778/Mor3816956-193.html Cite as:
[1778] Mor 16956
John M'Donald of Braickish, v. John M'Donald of Clanranald, and his Tutors and Curators
Date: 14 February 1778 Case No. No. 193.
Objection to a deed not mentioning the number of pages. - Not stamped.
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It was objected by Clanranald, to the validity of an agreement entered into between his father and M'Donald of Braickish, by which his father became bound to grant a lease for three nineteen years of the island of Canna to Braickish;
Primo, That, although the deed is written book-wise, yet it does not mention, in the testing clause, the number of pages of which it consists; nor are the pages numbered, both of which are required by the statute 1696, Cap. 15.
Secundo, It is not written on stamped paper, as required by the statutes 12mo An. C. 9. § 21. 3d. Geo. I. C. 7. 30th Geo. II. C. 19. which provide, that certain deeds, such as charters, bonds, leases, &c. shall be written on stamped paper. Although it contains a clause, obliging the parties to extend it on stamped paper, that does not remove the objection. Action must be denied upon it, otherwise the revenue of stamp-duties would be disappointed altogether. Neither can the objection be taken off by stamping the deed. After production, and being founded on in judgment, no defect in the writing can be supplied.
Answered for the defenders, to the first objection: This deed is written only on one sheet of paper, and the testing clause commences on the end of second page.The statute 1696 applies only to the case where deeds are written on more than one sheet. So it was found, Robertson contra Ker, 7th January 1742, No. 190. p. 16955.
To the second objection: This is not one of those deeds specified in the revenue-statutes establishing stamp-duties. It is not a lease, but only an agreement to grant a lease. But, if it did require stamping, the objection could be removed by getting the stamp still adhibited, upon paying the usual price.
“The Lords repelled the first objection to the pursuers title of action founded on the act 1696:—But, as to the second objection, sists process until the agreement is duly stamped in terms of law.”
Act. Fraser.Alt. Campbell.
Fac. Coll, No. 15. p. 23.
