« ΠροηγούμενηΣυνέχεια »
authority, their award was not binding as to the boundaries. R. v. Washbrook, 4 B. & C. 732 ; but see the remedial acts, ante, p. 143.
It has been repeatedly decided that corruption or misconduct of the arbitrators, including the case of an award made ex parte, does not invalidate the award, in any case, at least, in which an application might have been successfully made to the court to set it aside; vide post, Action on award, Defence.
An award made on a reference of all matters in difference between the parties will not be a bar with regard to any demand which was not in difference between them at the time of the submission, nor referred by them to the arbitrators. Ravee v. Farmer, 4 T. R. 146 ; Smith v. Johnson, 15 East, 213. And awards under inclosure acts are so far on the same footing as private submissions, that if the award goes beyond the powers of the commissioners, it is void pro tanto; and if it omits to decide on anything within the scope of the submission, the interest of parties remains in statu quo. Per Best, C. J., Thorpe v. Cooper, 5 Bing. 129. But, where an action by a person for his salary, and also for damages for dismissal from service, was referred, and the plaintiff gave evidence of dismissal, but claimed no damages for it before the arbitrator, who only awarded the amount of salary : held that the award was nevertheless a bar to a second action for damages for the dismissal. Dunn v. Murray, 9 B. & C. 780. See Hadley v. Green, 2 C. &J. 374. A. filed a bill against B. for the infringement of a patent, and the arbitrator found that the patent was not illegal and void : it was held that, in a subsequent action by A. against B. for infringement of the same patent, this award did not estop B. from upsetting the defence that A. was not the first and true inventor. Newall v. Elliott, 1 H. & C. 797 ; 32 L. J., Ex. 120.
The judgment of an usurped jurisdiction between parties is not admissible as an award without proof of mutual submission. Rogers v. Wood, 2 B. & Ad. 245.
An award made on ejectment, brought by A. against a mortgagor after mortgage, is not evidence for A. on an ejectment brought by the mortgagee against him.
Doe d. Smith v. Webber, 1 Ad. & E. 119. In a suit for injury to A.'s reversionary interest in a close whereof F. was tenant, in which the defendant set up the right of G., and denied that of A., it was held that the plaintiff could not put in, as evidence of such right, an award made in a former action between F. as plaintiff and G. as defendant, in which the same right was in question, and in which G. had pleaded not guilty only, and afterwards paid damages awarded against him ; for as it was not shown that A. was substantially the plaintiff in the first action, or that F. brought it by A.'s authority, a verdict or award against F. could not have prejudiced A., and therefore could not be available as evidence for A. Wenham, Ly., v. Mackenzie, 5 E. & B. 447 ; 25 L. J., Q. B. 44. But where the right of a watercourse and a question of boundary were referred by a submission between A. and his tenant B. on the one side, and C., a neighbouring landowner, on the other, the award was held admissible evidence for C. on both points in a subsequent action by him against B. ; although B. had, in the mean time, become tenant of the same land to another landlord, under whom he now justified, and who was not shown to be in privity with A. Breton v. Knight, Winton Sum. Ass. 1837, per Tindal, C. J., confirmed in Banc on motion for a new trial, MS. On an issue between plaintiff and an execution creditor of B., whether growing crops belonged to B., an award made between plaintiff and B. touching the crops, just before the execution, was held admissible as against the defendant. Thorpe v. Eyre, 1 Ad. & E. 926. In an action on a policy Ld. Kenyon admitted evidence that the defendant had agreed to be bound by an award to which other persons were parties, and that the award was in favour of the plaintiff. Kingston v. Phelps, Peake, 228.
That an award is not evidence, as between strangers, even in a matter in which hearsay is admissible, see Evans v. Rees, 10 Ad. & E. 151, cited ante, p. 48; Wenham, Ly., v. Mackenzie, ante, p. 207. So an award against a principal debtor is not evidence in an action against his surety. Ex pte. Young, 17 Ch. D. 668, C. A.
The award of arbitrators or an umpire upon a claim for compensation under the Land Clauses Consolidation Act, 1845, has the same effect as the verdict of a jury in an inquisition before the sheriff under that act (ante, pp. 186, 187), and is conclusive as to the amount, but not as to the right to compensation. In re Newbold & Metropolitan Ry. Co., 14 C. B., N. S. 405 ; Beckett v. Midland Ry. Co., L. R., 1 C. P. 241 ; R. v. Cambrian Ry. Co., L. R., 4 Q. B. 320. So in the case of an award under the Artizans' and Labourers' Dwellings and Improvement Act, 1875, 38 & 39 Vict. c. 36. Wilkins v. Mayor of Birmingham, 25 Ch. D. 78. Where the award is given for one entire sum, if any part of the sum is given contrary to law, the whole is invalidated. Beckett v. Midland Ry. Co. supra.
Of the effect of awards under inclosure acts, see further, ante, p. 143. Where an award under seal directs the payment of money, the award does not create a specialty debt, although the submission was also under seal. Talbot v. Shrewsbury, El. of, L. R., 16 Eq. 26.
STAMPS. The subject of stamps, though important and useful at Nisi Prius, is one that cannot be treated of at length in a work of this kind. The following summary only professes to contain some of the principal heads, and a selection of the most useful decisions on the acts. Nearly all the prior Stamp Acts were repealed by the Inland Revenue Repeal Act, 1870 (33 & 34 Vict. c. 99), and their provisions embodied, with some modifications, in a consolidated form, under the title of the Stamp Act, 1870, (Id. c. 97.) The duties on Policies of Marine Insurance (vide post, p. 247), were an unfortunate exception from this consolidation,
The stamp duties cited in the following pages are all, unless otherwise stated, those specified in the schedule to the Stamp Act, 1870. These duties are, by sects. 1, 3, imposed on and after the 1st January, 1871, on the instruments specified in the schedule, in lieu of all other duties thereon, and are subject to the exemptions contained in the schedule, and in any other acts for the time being in force, and, by sect. 6, they are charged in accordance with the regulations of that act. Sect. 5 provides that “
except where express provision to the contrary is made by this or any other act,” the same duties are to be charged on instruments relating to the property of the Crown, or the private property of the sovereign, as on instruments relating to the property of subjects ; such express provision is made in the stat. 10 Geo. 4, c. 50, s. 77, with reference to instruments entered into with H. M.'s Commissioners of Woods and Forests, under the provisions of that act; and that act is incorporated with subsequent acts, e.g., 5 Vict. c. 1, s. 7.
The principal changes introduced by the act are the abolition of progressive duty and the general reduction of the 35s. stamp chargeable on deeds and other instruments to 10s. See sect. 4 (post, p. 239) and schedule. Want of Stamp.—When presumed.
209 In the case of certain awards and leases, vide post, pp. 223, 242, the duty is still 358.
Stamp duty is chargeable on an instrument in accordance with its legal effect. Ř. v. Ridgwell, 6 B. & C. 665, 669, per Bayley, J. ; Hutton v. Lippert, 8 Ap. Ca. 309, P. C. ; it is immaterial by what title the parties thereto may designate the transactions therein recorded. S. C. See also Wale v. Comms. of Inl. Rev., 4 Ex. D. 270.
Effect of want of Stamp.-Stamp when presumed.] By the Stamp Act, 1870, s. 17, unless the duty and penalty be paid at the trial under sect. 16 (post, p. 216), “ no instrument executed in any part of the United Kingdom, or relating, wheresoever executed, to any property situate, or to any matter or thing done or to be done, in any part of the United Kingdom, shall, except in criminal proceedings, be pleaded or given in evidence,or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed.” The words in italics are identical with those of the analogous provisions of the earliest Stamp Acts (5 & 6 W. & M. c. 21, s. 11 ; 9 & 10 Will. 3, c. 25, s. 59), with the exception that those were limited in their operation to evidence given in any court. Those provisions were incorporated in succeeding Stamp Acts, e.g., 55 Geo. 3, c. 184, s. 8; 13 & 14 Vict. c. 97, s. 2; &c.,—until their repeal by 33 & 34 Vict. c. 99. The cases cited below, decided under the earlier acts, are consequently applicable to the Stamp Act, 1870, s. 17, supra.
Sect. 22 imposes a penalty on the person who, in the course of his office, enrols, registers, or enters, in or upon any rolls, books, or records, any instrument not duly stamped. See also sect. 57, post
, p. 232. These sections do not, however, invalidate the registration, &c., otherwise regular, of an instrument not duly stamped. Bellamy v. Saull, 4 B. & S. 265 ; 32 L. J., Q. B. 366.
The effect of sect. 17, supra, is that an instrument requiring a stamp, cannot, in general, be admitted in evidence without being stamped ; and consequently the objection of the want of a proper stamp is raised by any pleadings that render it necessary to put the document in evidence. Thus, in an action on a bill, the objection will arise on a traverse of the drawing or acceptance. Dawson v. Macdonald, 2 M. & W. 26 ; M Dowall v. Lyster, Id. 52. "If parties agree orally or by implication to be bound by the same terms as those contained in another written instrument, the latter cannot be given in evidence unless properly stamped. Turner v. Power, 7 B. & C. 625 ; Walliss v. Broadbent, 4 Ad. & E. 877 ; Alcock v. Delay, 4 E. &. B. 660. Where a bond, required to be given by a judge's order, had been inaiivertently filed by an officer of the court, although unstamped, and immediately the defect was discovered the party filing the bond procured it to be stamped, the original defect was cured as regards third parties who had no notice of the defect ; and it would seem also for all purposes. Darby v. Waterlow, L. R., 3 C. P. 453.
When an unstamped instrument in writing has been lost ; R. v. Castle Morton, 3 B. & A. 588 ; or destroyed even by the party who objects to the want of the stamp; Rippiner v. Wright, 2 B. & A. 478; oral evidence of the contents is inadmissible. But where an instrument has been lost or is not produced upon notice, and there is no evidence given respecting it one way or the other, the presumption is that it was properly stamped ; but if it be shown to be at one time unstamped, the presumption is that it continued unstamped, until the presumption be rebutted by some evidence contra, so as either to prove the stamping, or to leave it altogether uncer
tain. Closmadeuc v. Carrel, 18 C. B. 36 ; Marine Investment Co. v. Heaviside, L. R., 5 H. L. 624. See also Arbon v. Fussell, 7 L. T., N. S. 283, Ex., M. T. 1862 ; Blair v. Ormond, 1 De G. & Sm. 428. Thus, where an indenture of apprenticeship, executed 30 years before, was lost, it was presumed to have been properly stamped, though an officer from the Stamp Office stated that it did not appear that any such indenture had been stamped. R. v. Long Buckby, 7 East, 45. So, an order for payment given by the defendant to the plaintiff
, and lost by the latter, will be presumed, as against the defendant, to have been duly stamped. Pooley v. Goodwin, 4 Ad. & E. 94. An unstamped copy under the hand of the party against whom it is offered as secondary evidence is admissible, and the due stamping of the original is presumed, unless disproved. Smith v. Maguire, 1 F. & F. 199. Where a party refuses to produce an agreement after notice, it will be presumed, as against him, to be properly stamped ; Crisp v. Anderson, 1 Stark. 35 ; unless evidence be given that it was not stamped ; Crowther v. Solomons, 6 C. B. 758. In L. & County Banking Co. v. Ratcliffe (see 6 Ap. Ca. 730), the C. A. received a copy, stamped as an original, as evidence of an unstamped document which had been destroyed ; but it is difficult to see on what principle this copy could have been admitted. See also Marine Investment Co. v. Heaviside, L. R., 5 H. L. 630. If an instrument be produced at the trial bearing adhesive stamps properly cancelled, it will be presumed that they were affixed at the proper time. Bradlaugh v. De Rin, L. R., 3 C. P. 286.
Where the transaction is capable of being legally proved by other evidence than that of the instrument which ought to bear a stamp, such evidence, if allowed by the pleadings, may be resorted to; thus, where a promissory note appears to be improperly stamped, the plaintiff may resort to the original consideration. Farr v. Price, 1 East, 58 ; Tyte v. Jones, Id. n. In Vincent r. Cole, M. & M. 257, where a witness called by the plaintiff stated that the work, the payment for which formed the subject of the claim, was commenced under a written agreement, but that the items relied on by the plaintiff were extras, and not contained in it, Ld. Tenterden ordered the agreement to be produced, and as it was unstamped the plaintiff was nonsuited. But, in Reid v. Batte, Id. 413, a distinct order by the defendant having been proved, Ld. Tenterden thought that, though it was shown that the work was commenced under a written contract, the contract need not be produced. And a verbal admission of a debt, and promise to pay it, may be proved, though the party at the same time gave an unstamped admission and promise to pay. Singleton v. Barrett, 2°C. & J. 368. So, though an unstamped receipt is no evidence of payment, the fact of pay; ment may be proved by a witness who was present, and he may be allowed to use the unstamped receipt for the purpose of refreshing his memory; Rambert v. Cohen, 4 Esp. 213. See, as to use of unstamped copies and counterparts as secondary evidence of the originals, post, pp. 237, 240. In the case of the payment of legacies special evidence is required, vide post, p. 252. Where an action is brought upon an instrument which ought to be stamped, and the form of the pleading is such that at the trial it is not necessary to produce it, the court will not examine whether it is legally available with reference to the stamp laws. Per Ld. Eldon, C., Huddleston v. Briscoe, 11 Ves. 596 ; Thynne v. Protheroe, 2 M. & S. 553. When a bill of exchange on a wrong stamp has been given for goods sold, the vendor, in suing for the price, need not prove notice of dishonour. Cundy v. Marriott, 1 B. & Ad. 696.
If a plaintiff succeeds in making out a case of implied or oral contract, and it does not appear on the cross-examination of his witnesses that there
was any contract in writing, the defendant will not be allowed to give an unstamped written contract in evidence for the purpose of nonsuiting the plaintiff
. Fielder v. Ray, 6 Bing. 332; R. v. Padstow, 4 B. & Ad. 208 ; Magnay v. Knight, 1 M. & Gr. 911. But where the defendant being called as a witness for the plaintiff, proved that there was a written agreement, and on his being called on to produce it, it appeared to be unstamped, it was held that the plaintiff must be nonsuited ; Alcock v. Delay, 4 E. & B. 660; for an unstamped agreement is not a nullity. S. C. and R. v. Watts, cited Id. A party who executes the counterpart of a deed, properly stamped, cannot ohject to its admissibility in evidence on the ground that the original is not properly stamped. Paul v. Meek, 2 Y. & J. 116. Now, however, in every case, except a lease not executed by the lessor, the counterpart must bear a denoting stamp, unless it be stamped as an original, vide post, p. 240. The stamp must be such as was applicable to the instrument at the time of its execution. Clarke v. Roche, 3 Q. B. D. 170.
Unstamped Instrument, when evidence for collateral purposes.] In many cases an instrument, not properly stamped, is admissible to prove a collateral fact. And the fact seems to be collateral, if the instrument be offered, not for the purpose of giving effect to it, but in order to prove something independent of, and unconnected with, the purpose for which the stamp is required to be impressed. Thus, in an action of debt for bribery at an election, an unstamped promissory note payable to the defendant, which a witness said he had given for the repayment of money received by him, as a voter, from the defendant, is evidence to corroborate the testimony of the witness. Dover v. Maestaer, 5 Esp. 92. So, an unstamped agreement has been admitted between the parties to prove usury. Nash v. Duncomb, 1 M. & Rob. 104. Or, to show the illegal consideration of the plaintiff's debt. Coppock v. Bower, 4 M. & W. 361. Or, to refresh the memory of a witness, ante, pp. 166, 167,210. Or, to show fraud: thus an unstamped promissory note may be given in evidence to establish fraud, by showing that it was written by the maker in a state of intoxication. Gregory v. Fraser, 3 Camp. 454; Keable v. Payne, 8 Ad. & E. 555 ; R. v. Gompertz, 9 Q. B. 824. So, an unstamped agreement may be used to show fraud. Ashcombe v. Ellam, 2 F. & F. 306. And see Holmes v. Sicsmith, 7 Exch, 802 ; 21 L. J., Ex. 312. And an allegation that plaintiff delivered up a guarantee may be proved by delivery of an unstamped guarantee. Haigh v. Brooks, 10 Åd. & E. 309.
In Ec parte Wensley, 1 D. J. & S. 273; 32 L. J., Bky. 23, an unstamped and unregistered trust deed was admitted by Ld. Westbury, C., in proof of an act of bankruptcy ; in Ex parte Potter, 34 L. J. Bky. 46, he disapproved of this case, apparently under the impression that it had been decided by Ld. Campbell ; see report in 13 W. R. 190 ; and Id. n.; but Ex parte Wensley, supra, has been since followed in Hobson v. Thelluson, L. R., 2 Q. B. 642; in Ponsford v. Walton, L. R., 3 C. P. 167; and in Ex parte Squire, L. R., 4 Ch. 47.
It has been held that the court cannot inspect an unstamped contract even for the purpose of ascertaining whether its contents preclude the admission of oral evidence of extras. Buxton v. Cornish, 12 N. & W. 426. But the dictum of Bayley, J., R. v. Pendleton, 15 East, 449, and the decision in Reed v. Deere, 7 B. & C. 261, seem at variance with this ruling ; however, the cases may perhaps be reconciled by holding that where the work, the price of which is claimed, cannot be proved without disclosing the existence of a written and unstamped contract, the court cannot inspect that contract for the purpose of ascertaining whether the work actually in question does or does not come within its terms; but it is otherwise where such work can