Re Estate of MARGARET WERNHAM.

Re Estate of MARGARET WERNHAM.

D. C., Kandy, 1,979.

Stamp Ordinance, No. 3 of 1890- Executor's inventory in testamentary proceeding-Civil Procedure Code, s.733-Affidavit verifying such inventory- Stamp duty thereon-Interpretation of Ordinance.

Per Bonser, C.J., and Lawrie, J. (dissentiente Withers, J.).-An affidavit in support of an intermediate account filed by an executor under section 733 of the Civil Procedure Code is not chargeable with stamp duty under the Ordinance No, 3 of 1800, section 3 (schedule B, part III.).

In interpreting an Ordinance imposing burdens on the subject, it must be construed favourably to the subject; and optima est legis interpres consuetudo,

THE facts relevant to this appeal, which came on for argument on 8th November, 1898, appear in the following judgments pronounced on the 16th December, 1898.

Van Langenberg, for the administrator, appellant. Loos, C. C, for the Attorney-General. Bonser, C.J.-

In this case, the District Judge of Kandy has required the affidavits verifying respectively an executor's inventory of the estate of his testator and an intermediate account filed by an executor under section 733 of the Civil Procedure Code to be stamped with an ad valorem duty, as being " affidavits in a testamentary proceeding," and chargeable with duty under part III. of the schedule to the Stamp Ordinance, 1890. It was contended by Mr. Van Langenberg that the verification on oath of the correctness of the inventory required by section 538 of the Civil Procedure Code is not an affidavit. But I am clearly of opinion that it is. The only question in both cases is whether these affidavits are chargeable with stamp duty.

Now, the first observation which I would make is that it has never been suggested that these documents were chargeable with duty until the question was raised by the District Judge of Kandy in the present case. I have ascertained by inquiry that it has been the practice of the two principal District Courts of the Island-the Courts of Colombo and Kandy-ever since the year 1841, when stamp duties were first imposed on legal proceedings, to treat these affidavits as not being chargeable with duty, and it may safely be assumed that the practice of these Courts was also the practice of the other Courts of the Island.

It is not necessary to go further back than the Stamp Ordinance No. 11 of 1861. Part II. of the schedule to that Ordinance headed

Containing the Duties on Law Proceedings " contains tables of the fees chargeable in the various Courts under the headings

Supreme Courts," " District Courts," and " Courts of requests," respectively. The first item in each table is " every affidavit or affirmation," and the stamp depended in each case on the class of the action, which class was determined by the value of its subject-matter. There was a footnote to the table of fees in the Supreme Court in the following words:-" Testamentary proceedings shall

be charged in the class corresponding with the value of the estate, " which must be set out by affidavit when the application for " probate or letters of administration is made." This note was repeated at the foot of the table of District Court fees. There was no such note appended to the table of fees in the Courts of requests, for the obvious reason that Courts of Requests have no testamentary jurisdiction. Part III. of the schedule to the same Ordinance was headed thus:-"Containing the Duties in Testamentary Proceedings; on Probates of Wills and Letters of Administration." This part contained only four items, viz., (1) every account, provisional or final; (2) every bond; (3) every copy of any document; and (4) probates and letters of administration. It is obvious, therefore, that this part III. did not comprise all the duties payable on testamentary proceedings, but that the duties on documents such as petitions, affidavits, proxies, applications to the Supreme Court for the co

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