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 v. 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 payment 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

Unstamped Instruments.

211 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. 944. 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 object 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. Sixsmith, 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 Ad. & E. 309.

In Ex 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 M. & 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

be proved by independent evidence which does not require the contract to be produced; see infra. Such an instrument cannot be read to the jury as evidence of the contract, or any part of it, in respect of which the plaintiff sues. Jardine v. Payne, 1 B. & Ad. 670. Yet, in an action for goods sold, a bill of parcels, on which the seller has written an unstamped receipt when he made out the bill, may be put in by the defendant as evidence that another person, and not he, was debited by the plaintiff as buyer; for it is not used as a receipt, nor need that part be read. Millen v. Dent, 10 Q. B. 846. A statement of account is admissible against the party whose unstamped receipt for the balance is signed at the foot. Mattheson v. Ross, 2 H. L. C. 286. But if the payment had been in dispute in the cause, or had been material in the issue between the parties, so that it would have been necessary to instruct the jury to discharge the receipt from their minds, it is questionable whether the statement could then have been admitted, even for the collateral purpose of proving the account. Ld. Campbell, C. J., S. C. Ib.

On trial of issues out of Chancery upon a suit for specific performance of a sale, a writing in the following form was put in by the vendee :-" Received of A. B. the sum of, being the amount of three tenements sold by me adjoining, &c. Signed, C. D." (the vendor). The two questions were, 1. Whether there was a contract of sale? 2. Whether there was any payment? The writing was stamped as an agreement only. Upon an appeal in Chancery, Ld. Cottenham considered the paper inadmissible on the first issue, being an attempt to prove an agreement by proving the fact of payment. On a further trial and appeal, Ld. St. Leonards, C., held it admissible evidence of the contract of sale. It was not contended to be admissible as proof of payment, and it contained all the terms of the contract, with the signature of the vendor subscribed. Evans v. Prothero, 2 Mac. & G. 319; 20 L. J., Ch. 448; S. C. 1 D. M. & G. 572; 21 L. J., Ch. 772.

A party declared upon two written agreements, by the second of which variations were made in the first: there were counts upon each separately, and it appeared, when the instruments were produced in evidence by the plaintiff, that the first only was stamped: it was held that the second could not be read in evidence to support the plaintiff's case, but might be looked at by the court in order to ascertain whether the first was altered by it; and that, if it was, the plaintiff could not exclude the second agreement, and proceed upon the first only. Reed v. Deere, 7 B. & C. 261. Where, in an action against an acceptor, it appeared that, on the bill becoming due, his name had been erased and another bill (unstamped) drawn on the back of the first, it was held that the unstamped bill could not be submitted to the jury for the purpose of drawing the conclusion that the first bill had been cancelled. Sweeting v. Halse, 9 B. & C. 365. But where the plaintiff proved a deposit of money on certain terms contained in a promissory note duly stamped, and the note was afterwards altered by consent so as to become invalid for want of a fresh stamp, it was held to be still admissible evidence of the terms of the deposit. Sutton v. Toomer, 7 B. & C. 416. On a plea of payment to an action on a bill, where some proof appeared on the plaintiff's evidence that payment was made by another bill, he may put in the bill to show that it was unavailable for want of a stamp. Smart v. Nokes, 6 M. & Gr. 911.

Stamps how applied.—Number required.] By the Stamp Act, 1870, s. 7, "(1.) Every instrument written upon stamped material is to be written in such manner, and every instrument partly or wholly written before being stamped is to be so stamped, that the stamp may appear on the face of the

How applied.-Number required.

213

instrument, and cannot be used for or applied to any other instrument written upon the same piece of material.

(2.) If more than one instrument be written upon the same piece of material every one of such instruments is to be separately and distinctly stamped with the duty with which it is chargeable.'

Sect. 8. "Except where express provision to the contrary is made by this or any other act,

(1.) An instrument containing or relating to several distinct matters is to be separately and distinctly charged, as if it were a separate instrument, with duty in respect of each of such matters.

(2.) An instrument made for any consideration or considerations in respect whereof it is chargeable with ad valorem duty, and also for any further or other valuable consideration or considerations, is to be charged with duty in respect of such last-mentioned consideration or considerations as if it were a separate instrument made for such consideration or considerations only."

The stamp required depends on the true character of the instrument, notwithstanding what it purports to be, and it is to be stamped for its leading and principal object, and this stamp covers everything accessory to this object. Limmer Asphalte Paving Co. v. Inl. Rev. Coms., L. R., 7 Ex. 211, 215, 217. But where one instrument operates as two independent ones, each of which would be liable to duty, it must be stamped in respect of each. Hadgett v. Id., 3 Ex. D. 46, post, p. 235.

Where the subject-matter of the instrument is joint, though several persons are interested in it, only one stamp is requisite. Thus, an assignment of the prize-money of several seamen on board a privateer, payable out of one fund, requires only one stamp. Baker v. Jardine, 13 East, 235 n. So, an agreement by several for a subscription to one common fund. Davis v. Williams, 13 East, 232. So, an agreement of reference by all the underwriters on one policy. Goodson v. Forbes, 6 Taunt. 171. So, a bond by several obligors in a penalty conditioned for the performance of certain acts by each and every of them. Bowen v. Ashley, 1 N. R. 274; and see Stead v. Liddard, 1 Bing. 196. So, an agreement by three persons, in consideration that A. would pay a certain debt and costs, to indemnify A. to the extent of 50l., to be paid separately by each with one-fourth of the costs, requires only one stamp. Ramsbottom v. Davis, 4 M. & W. 584. A release by several commoners of their respective rights, to make them competent witnesses, required only one stamp. Carpenter v. Buller, 2 M. & Rob. 298. And a single release of all encroachments by persons who had severally encroached on a common, made to the trustees of the commoners in general, was held to require only one stamp. Doe d. Croft v. Tidbury, 14 C. B. 304. See also Thomas v. Bird, 9 M. & W. 68. So, where the members of a mutual insurance club all executed the same power of attorney, severally authorising the persons therein named to sign the club policies for them. Allen v. Morrison, 8 B. & C. 565. So, where several shareholders convey their interests by one deed, only one ad valorem stamp for the total amount is necessary. Wills v. Bridge, 4 Exch. 193. See also Freeman v. In. Rev. Coms., L. R., 6 Ex. 101.

When an agreement refers to another document, and the two papers form, in fact, but one agreement, it is sufficient if one of them only bears a stamp. Peate v. Dicken, Ĭ C. M. & R. 422. The document might, however, require a stamp as a schedule, vide Schedule, post, p. 253. But where a paper contains several contracts, and consequently requires several stamps, and only one is impressed upon it, that stamp applies to the contract only on which the stamp is impressed. Powell v. Edmunds, 12 East, 6. Where a

paper contains a number of independent contracts with different tenants, though under the same general terms of holding, and there is but one stamp upon it, it is matter of evidence to which contract the stamp applies, and the juxtaposition of the stamp is to be regarded. Doe d. Copley v. Day, 13 East, 241; and now see sect. 7, ante, pp. 212, 213. And if it is uncertain to which the stamp applies, the paper is inadmissible. Shipton v. Thornton, 9 Ad. & E. 331. The several admissions of five corporators, as freemen, were written on the same paper with only one stamp; such stamp was held to apply to the first admission only, and the others could not be read. R. v. Reeks, 2 Ld. Raym. 1445; and see Perry v. Bouchier, 4 Camp. 80; Waddington v. Francis, 5 Esp. 182. To a stamped agreement to refer a question to A. the parties some days afterwards added a memorandum appointing B. instead of A. held that one stamp was sufficient. Taylor v. Parry, 1 M. & Gr. 604. Where the defendant made in his own name a single agreement as to goods of his own and also goods of himself and partners, the whole of the goods forming part of the cargo of one ship, and signed in the name of the firm held, in an action on it against him alone, that only one stamp was necessary. Shipton v. Thornton, 9 Ad. & E. 314.

Number of words.] As the Stamp Act, 1870, contains no provision charging progressive duty, the number of words in any instrument chargeable under that Act is now immaterial.

Foreign instruments.] Under sect. 17 (ante, p. 209), no instrument, wherever executed, relating to any property situate, or to any matter or thing done or to be done, in the United Kingdom, shall be given in evidence unless stamped. If a stamp is necessary to render an instrument valid in one of the British colonies, it has been held that it cannot be received in evidence without that stamp here. Clegg v. Levy, 3 Camp. 167; Alves v. Hodgson, 7 T. R. 241. So, where a foreign contract is void for want of a foreign stamp, it will also be void in this country. Bristow v. Sequeville, 5 Exch. 275. But as a general rule our courts do not take notice of foreign revenue laws; therefore an unstamped receipt, given in France, will be evidence here, though the French law requires that it should be stamped. James v. Catherwood, 3 D. & Ry. 190.

Under sect. 17 (2, a), an instrument first executed abroad may be stamped within two calendar months after its first arrival in the United Kingdom, without the payment of any penalty. A contract made in a British ship at sea is in the same position with regard to a stamp as one made abroad; see Ximenes v. Jaques, 1 Esp. 311.

As to the stamps required by foreign bills, promissory notes, charterparties, and policies of insurance, see under those respective heads.

Value, how ascertained.—Statement of.] By sects. 11, 12, foreign or colonial currency is to be valued according to the rate of exchange, and stock, &c., is to be valued at the average price at the date of the instrument. By sect. 13, an instrument stating the value so estimated and stamped accordingly, is prima facie, duly stamped.

Denoting Stamp.] This is used, under sect. 14, to indicate that an instrument which would, prima facie, be liable to higher duty is, in fact, correctly stamped, by reason of the higher duty having been paid on some other instrument. See Duplicate, post, p. 240.

Adjudication Stamp.] Under sect. 18 (1), (2), (3), the Commissioners of Inland Revenue may be required, without the payment of any fee, to affix