witnesses was proved, and no account could be given of the third, the will being above thirty years old, and the testator having been dead for twenty years, an objection was made to the proof of the will; but the Master of the Rolls said, he could not see any distinction in this respect between a will and a deed, except that the former, not having effect till the death, wants a kind of authentication, which the other has; that is, from the nature of the subject; but in this case, he added, I think the proof sufficient; for in a late case in the Court of King's Bench, Cunliffe v. Sefton, (1) an enquiry of the same kind was held sufficient. The Master of the Rolls therefore held, that the execution of the will had been sufficiently. proved. (a) *CHAP. IX. Of Stamping, as a Requisite of Written Instruments. A WRITTEN instrument, which requires a stamp, cannot be admitted in evidence, unless it be duly stamp-. (1) Vid. sup. p. 419. of Mackery v Newbolt was cited, in which Sir Lloyd Kenyon, then Master of the Rolls, decided, that a will above thirty years old should be read without proof, although the testator bad died very recently. That point, however, was not de. vided in the case of Calthorpe v Gough, because the plaintiff, the heir at law, admitted the will, and claimed under it. (a) Vide Rancliff v Parkyns, & Dow. 202. An ancient will, with thirty years possession, in conformity to the provisions of it, since the death of the testator, like an ancient deed, proves itself: the period must be computed from the death of the testator, not from the date of the will. Jackson d. Burhans v Blanshan, 3 Johns. Rep. 292. Shaller & another v Brand, 6 Binney 435. A will upwards of 80 years old, was admitted in evidence without proof of execution, though actual possession had not accompanied it, the premises having, until 30 years after the date of the will, never been in the actual possession of any one, when an adverse possession commenced; there being, however, circumstances shown to raise a presumption of the existence and genuineness of the will. Jackson d. Lewis and others v Laroway, 3 Johns. Cas. 233. Vide ante, 427. n. * 386 [4.2] * 387 ed; and no parol evidence will be received of its contents. If, therefore, the instrument produced is the only legal proof of the transaction, and that cannot be admitted for want of a proper stamp, the transaction cannot be proved at all; (1) as, in an action for use and occupation, if it appear that the defendant held under a written agreement, which for want of a stamp cannot be received, the plaintiff will not be allowed to go into general evidence; for the agreement is the best evidence of the nature of the occupation. (2) But it may happen, in a variety of cases, that the transaction is capable of being proved by other evidence besides the written instrument; and the objection arising from the stamp acts may be avoided by resorting to that other species of proof. Thus, although an unstamped receipt for the payment of a bill is not admissi ble in evidence, yet the fact of payment may be proved by a witness, who saw the money paid; and even such an unstamped receipt may be shewn to the witness as a memorandum to refresh his memory. (3) So in an action on a promissory note, though the plaintiff cannot give the note in evidence, unless it is duly stamped, yet he will not be precluded from recovering on one of the general counts of the declaration, if he can prove an admission of the original debt, or give other evidence of a consideration received by the defendant. (4) And so, when a party to the suit admits on the record that, which (if not admitted) the other party must regularly prove, it cannot be necesary to produce that evidence, which would otherwise be required. Thus, where an action is brought upon an agreement, which ought to be stamped, and the form of the pleading is such, as to make (1) R v St. Paul's, Bedford, 6 T. R. (2) Brewer v Palmer, 3 Esp. N. P. (3) Rambert v Coben, 4 Esp. N. P. C. 213. Jacob v Lindsay, 1 East, 460. (4) Farr v Price, 1 East, 57. Alves v Hodgson, 7 T. R. 243. Tyte v Jones, 1 East, 58. n. (a) Brown Watts, 1 Taunt. 353. Wade v Beasley, 4 Esp. N. P. C. 7. it unnecessary at the trial to produce the instrument, (as, if it is admitted on the record, and the trial is upon issues collateral to the existence of the agreement,) a court of law will not examine, whether the instrument is legally available with reference to the stamp acts. (1) So, where a plaintiff filed a bill in Chancery for the specific performance of an agreement contained in a correspondence between him and the defendant, and the answer of the defendant admitted the letters, insisting only, that they did not amount to an agreement, the Court held that such an admission dispensed with the necessity of producing the letters, and that no objection to the agreement could be taken for the want of a stamp. (2) ment. [45] Written agreements and other instruments, made in a Foreign instruforeign country, are not admissible in evidence in any of our courts, unless duly stamped by the laws of that country; if they are not obligatory abroad, they cannot be enforced here. Where a promissory note had been made in Jamaica, but not stamped as it ought to have been by the laws of the island, the Court of King's Bench held, that a party could not recover here upon the note. (3) The party, who takes this objection to the validity of the instrument, will have to shew, that a stamp was necessary by the law of the country; and for this purpose an authenticated copy of the law ought to be produced. (4) If a person resident abroad desire his correspondent in England to fill up a bill of exchange, and return it to him to be signed, and he afterwards signs it abroad, the bill does not *require to be stamped as if it had been drawn in this country; and. the rule is precisely the same, whether he signs his name as drawer, before or after he sends it over to this coun (1) By Ld. Eldon Ch. 11 Ves. 596. Thynne v Protheroe, 2 Maule & Selw. 558. (2) Huddleston v Briscoe, 11 Ves. jun. 583. (3) Alves v Hodgson, 7 T. R. 241. Clegg v Levy, Campb. 166. Crutch- (4) Buchanan v Rucker, I Camph. *388 Denomination of stamp. 389 try to be filled up by his correspondent. (1) In the case of Snaith v. Mingay, (2) which was an action by an indorsee against the indorser, a person resident in Ireland subscribed his name in the character of drawer, and afterwards as first indorser, on a paper, which was properly stamped according to the revenue laws of Ireland, and had every mark to designate it as a bill of exchange; he then sent it over to this country with authority to his correspondent to insert the day of the date, the sum, and the name of the drawee; and it did not appear, that there was any intention of evading the stamp laws, or any imputation of fraud in the transaction; under these circumstances the Court of King's Bench were of opinion, that the bill was an incipient bill in Ireland, though it was completed here, and that, after it had been completed, it was to be considered as a bill of exchange from the time of its being signed by the drawer; and consequently that an English stamp was not necessary. It is not sufficient that the stamp used is of the proper value; the stamp must also be of the proper denomination, that is, the peculiar stamp appropriated to the particular species of instrument. (3) A receipt-stamp will not avail, if used upon a promissory note; nor a note-stamp, if used upon a receipt. So, articles of agreement under seal require a deed-stamp; an agree ment-stamp will not be sufficient, though it may be of greater value. (4) An agreement for a house, and also for goods in the house, requires a lease-stamp; and, unless it is so stamped, cannot be given in evidence as an agreement for the sale of the goods, in an action to recover the amount. (5) The statute 37 G. 3. *c. 136. contemplates the mistakes, which may arise in the use of stamps, and makes provision for those mistakes. It en (1) 1 Maule & Selw. 94. (3) Stat. 37 G. 3. c. 136 s. 1. Stat. ✓ Whittingham, 4 Taunt 21. (4) Robinson v Drybrough, 6 T. R. 317. (5) Corder v Drakeford, 3 Taunt 382. acts, that where any instrument, (except bills, notes, and drafts,) shall have been stamped with a stamp of a dif ferent denomination, but of equal or greater value than that required by law, the commissioners, upon payment of the duty and a penalty of 57. may stamp the same with a proper stamp. With respect to bills and notes, (which by statute 31 G. 3. c. 25 were forbidden to be stamped after they were made,) the statute of the 37th G. 3. provides, that bills and notes, which should be made subsequent to that act, and stamped with an improper stamp, but of equal or greater value than the stamp required, may be stamped by the commissioners on payment of the duty and a penalty. But bills and notes, made before that act, remain in the same situation as if the act had not passed. The statute 43 G. 3. c. 127. s. 6. provides, that, if the stamp is of the proper denomination, it shall not be ineffectual from being of a greater value than the stamp acts require. Before this act, a stamp of greater value, though of the proper denomination, was determined to be insufficient. (1) And the statute 55 G. 3. c. 184. s. 10. provides, that all instruments, upon which any stamp shall have been used of an improper denomination or rate of duty, but of equal or greater value in the whole than the stamp, which ought regularly to have been used, shall be deemed valid and effectual in law, except in cases, where the stamp used in such instruments shall have been specially appropriated to any other instrument by having its name on the face. In the case of Taylor v. Hague, (2) indeed, before the statute, of the 43d G. 3. the Court held, that a promissory note upon a stamp of a higher value than was required, would be available, on the particular ground, that the value was composed of three different sums applicable to several funds, to which the duties on promissory notes are carried. [445] |