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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hope v. Lord Advocate [1867] ScotLR 5_38 (20 November 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0038.html Cite as: [1867] SLR 5_38, [1867] ScotLR 5_38 |
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Page: 38↓
A draft charter of confirmation was lodged with the Presenter of Signatures on 15th April. It was not ready to be given out till after Whitsunday. Held, in the circumstances of the case, that the vassal was not liable in a half-year's non-entry duties claimed by the Crown in respect that the charter was not ready to be given out till after Whitsunday. Observed that neither the date of presenting the draft charter nor the date of completing the charter, can be taken as an invariable rule in giving the amount of duty, but that every case is special.
This was a note of objection for Henry Walter Hope, Esquire of Craighall and Waughton, to the amount of duties marked by the Presenter of Signatures and Queen's Remembrancer on draft charters of confirmation in favour of the objector in the lands of Luffness, Waughton, Saltcoats, Craighall, and Easter Fairney.
It appeared that the last vassal, George William Hope, Esq., died on 18th Oct. 1863. The draft charters of confirmation in favour of the objector were lodged at the office of the Presenter of Signatures on 16th April 1867. It was found that one of the requisite titles was wanting, and that there was an error in the destination. These matters were put right on 1st May. Thereafter, the report by the Presenter of Signatures bore—“The clerk to the Presenter having gone over the new production and made the necessary corrections upon the drafts, the whole titles, along with the drafts, were on Friday, 3d May, sent to the Presenter for revisal. On the 7th of May they were returned from the Presenter revised, and the Presenter's clerk then proceeded to make out notes of the non-entry and other duties payable to the Crown. This occasioned considerable calculation, and, on the 9th of May, notes of these duties were sent to the Auditor in Exchequer for revisal and authentication. In fixing these duties the clerk to the Presenter only charged three and a-half years' non-entry duties, expecting that the drafts might probably be carried through before the term of Whitsunday 1867. But in going over the notes of duties, the Auditor in Exchequer considered it necessary to have evidence whether certain mines and minerals, on the value of the workings of which a duty was payable to the Crown, had been wrought, and, on the 14th May, notice of this having been given to the Presenter's clerk, he on the same day wrote to the objector's agent, requesting to know whether these mines and minerals had been worked, and also requesting him to send the receipt for the last payments of the feuduties. On the 24th of May the objector's agent sent the necessary information, as will be seen from his letter herewith; as the term had then passed, an additional half-year's non-entry duty became payable.”
Mr Hope contended that, as it was not his fault that the non-entry duties were not fixed and paid prior to Whitsunday 1867, he ought not to be charged with the additional half-year's duties.
It was stated in reply for the Presenter of Signatures, that the uniform practice in Exchequer had been followed, and that the original cause of delay lay with the objector. Answers were also lodged for the Commissioners of Woods and Forests.
The Lord Ordinary ( Ormidale) held that, in the special circumstances of the case, the objector ought not to be held to have incurred the additional half-year's duty, but did not adopt either, on the one hand, the contention that the date of presenting the draft charter was to be the rule in all cases; nor, on the other hand, that the date when the charter was completed was to be the invariable rule. Expenses to neither party.
The Lord-Advocate reclaimed.
Soliciter-General ( Millar) and T. Ivory for him.
Adam in reply.
At Advising—
Lord President—I am of the same opinion. We are told by the Officers of State, that since the passing of the Crown Charters Act it has been the uniform practice in Exchequer to calculate non-entry duties from the date of the charter, and not from the date of lodging the draft, and that a contrary practice would lead to confusion. If by that is meant that under no circumstances whatever can the calculation of non-entry duties be made from any other date than delivery of the charter, the sooner that practice is put an end to the better. It might lead to the greatest hardship if there were any such inflexible rule, and the present case seems to be illustrative of this position. But I am not prepared to assent to the proposition that the date of calculating the non-entry duties is always to bo the date of lodging the draft. That would be equally unjust and absurd. We are dealing with a special case, and every such case is special. The facts necessary for our judgment may be shortly stated. The first application on the part of Mr Hope was made on the 16th April, that is, just a month before Whitsunday. And certainly when an application is made for that charter a month before the term, it may reasonably be expected that the charter will be obtained before Whitsunday, and that no non-entry duty will be incurred in respect of the arrival of that term. It is true that here the draft was incomplete. There was a title wanting, and there was also some error in the destination. But it is to be observed that these difficulties,—the only difficulties in the Presenter's office,—were completely removed before 1st May. There was then a full fortnight to give out
Page: 39↓
Reclaiming note refused, with expenses to objector since the date of the Lord Ordinary's interlocutor.
Solicitors: Agents for Objector— Hope and Mackay, W.S.
Agent for Crown— A. Murray, W.S., Solicitor H. M. W. & F.
