Wood v Ker
| Jurisdiction | Scotland |
| Judgment Date | 13 November 1838 |
| Year | 1838 |
| Date | 13 November 1838 |
| Docket Number | No. 3 |
| Court | Court of Session (Inner House - Second Division) |
Lord Jeffrey. F.
Stamp—Diligence.—
Writ—Erasure.—
THE pursuer Wood, of London, purchased, in 1835, an annuity of £190 from David Dalton Kennedy, the author of the defender Ker, for the sum of £1700. In security of the annuity Kennedy, granted an heritable bond over his lands of Craig in Ayrshire, which were held under entail, and upon this bond Wood was infeft in April, 1835. The bond was written upon an insufficient stamp. The numbers of some of the pages of the bond, which were in words and not figures, were written wholly or partially upon erasures; but the pages were evidently continuous, and were each signed by the granter, while the description of the number of pages in the testing clause was correctly given, and was free from blemish or erasure. In October, 1835, Kennedy granted a trust-disposition of his whole heritable and moveable property, for behoof of his creditors, in favour of the defender, Thomas Collingwood Ker, who was in the same year infeft thereon.
In 1837, Wood, founding on the bond and disposition in security, and alleging that no part of the annuity had ever been paid, brought an action of poinding the ground against Kennedy and the tenants of Craig. In this action appearance was made by Ker, who, in his defences to the action, objected, 1st, That the bond, which was the foundation of the proceeding, was not duly stamped, and that the pursuer's title was therefore defective; 2dly, That the bond was erased and vitiated in essentialibus.
Thereupon the bond having been submitted to the Commissioners of Stamps, was got properly stamped.
Ker still maintaining his objection on the stamp-laws to the validity and effect of the pursuer's bond and sasine, the Lord Ordinary ordered cases upon the point, and also upon the objection as to the erasures in the paging of the deed.
Pleaded for Ker;—
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1. The action of poinding the ground is a diligence of the law, having immediate effect, and of an exclusive and prejudicial character;1 it ought therefore to be complete and well founded ab initio, and unless it is so, no subsequent proceedings can make it effectual. It is declared by the stamp acts that no deed shall be pleaded or given in evidence in any court, or ‘admitted in any court to be good, useful, and available in law or equity,’ unless it shall be properly stamped;2 and it would be inconsistent both with the letter and spirit of the statutes that the bond in question, having been without a proper stamp at the time the sasine on it was taken, and also at the date of the disposition in favour of the defender, should, by receiving a stamp after the action has been proceeded with, have a retrospective effect given to it in prejudice of the defender's right.3 Moreover, the infeftment, as bearing to proceed upon a precept contained in a deed written on ‘paper duly stamped,’ such not being the case, is disconform to its warrant, and invalid.
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2. The paging of a deed is a statutory requisite, and therefore inter essentialia;4 the bond of annuity, in the present case, must...
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