CHAPTER IX. STAMPS. In this chapter only the leading principles of the law relating to stamps will be stated, so far as they affect the admissibility in evidence of written documents. The general rule is, that 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. Section 14 of the Stamp Act, 1891 (a) (which consolidates the previous enactments), provides that: "(1) Upon the production of an instrument chargeable with any duty as evidence in any court of civil judicature in any part of the United Kingdom, or before any arbitrator or referee, notice shall be taken by the judge, arbitrator, or referee of any omission or insufficiency of the stamp thereon, and if the instrument is one which may legally be stamped after the execution thereof, it may, on payment to the officer of the court whose duty it is to read the instrument, or to the arbitrator or referee, of the amount of the unpaid duty, and the penalty payable on stamping the same, and of a further sum of one pound, be received in evidence, saving all just exceptions on other grounds. (2) The officer, or arbitrator, or referee receiving the duty and penalty shall give a receipt for the same, and make an entry in a book kept for that purpose of the payment and of the amount thereof, and shall communicate to the commissioners the name or title of the proceeding in which, and of the party from whom, he received the duty and penalty, and the date and description of the instrument, and shall pay over to such person as the commissioners may appoint the money received by him for the duty and penalty. (3) On production to (a) 54 & 55 Vict. c. 39. the commissioners of any instrument in respect of which any duty or penalty has been paid, together with the receipt, the payment of the duty and penalty shall be denoted on the instrument. (4) Save as aforesaid, an 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 not, except in criminal proceedings, be given in evidence, or be available for any purpose whatever, unless it is duly stamped in accordance with the law in force at the time when it was first executed." It will be noticed that the above provisions only apply to instruments which can legally be stamped after execution. Section 15 of the Stamp Act, 1891, provides, by sub-s. (1), that: "Save where other express provision is in this Act made, any unstamped or insufficiently stamped instrument may be stamped after the execution thereof, on payment of the unpaid duty and a penalty of ten pounds, and also by way of further penalty, where the unpaid duty exceeds ten pounds, of interest on such duty, at the rate of five pounds per centum per annum, from the day upon which the instrument was first executed up to the time when the amount of interest is equal to the unpaid duty." For "other express provision" the Statute must be consulted. The party who objects to the want or sufficiency of a stamp must prove it (b); and the judge will determine. the question before the instrument can be shown to the jury (c); but by s. 12 of the Stamp Act, 1891, provision is made for taking the opinion of the Commissioners of Inland Revenue on the liability of any instrument to duty, and for stamping such instrument in accordance with such opinion; and it is enacted that- "Every instrument stamped with the particular stamp denoting either that it is not chargeable with any duty, or is duly stamped, shall be admissible in evidence, and available for all purposes notwithstanding any objection relating to duty." (b) Doe v. Coombs, 3 Q. B. 687. (c) Per Lord TENTERDEN: Jardine v. Payne, 1 B. & Ad. 670. If an agreement is no more than a proposal, it does not require a stamp; but when it is either an agreement strictly, or evidence of one, it must be stamped, if the subject-matter is above £5 (d). Where an agreement, which appears to be in writing, is in dispute between parties, it must, according to the rule which requires the best evidence, be produced; and, when produced, if it appears to require a stamp, it will be inadmissible unless it be properly stamped. Thus, where it appears in the course of a party's case that there is a written agreement, bearing directly on the points at issue, he must produce it duly stamped (e). Such an agreement cannot be treated as a nullity, if it is produced and appears to be unstamped; and therefore it was held in Delay v. Alcock (f), that a county court judge was wrong in allowing parol evidence to be given of an agreement contained in an unstamped writing. Where, however, a party succeeds in establishing his case by oral evidence, the opposite party cannot defeat it by merely producing an unstamped written agreeThus, in Magnay v. Knight (g), where the plaintiff closed her case without anything appearing to show that there was a written agreement between her and the defendant as to the subject-matter of the action, the defendant was held not entitled to call for a nonsuit by producing a paper purporting to be an agreement, but unstamped. This case, although apparently contradicted by Delay v. Alcock, will be reconciled with it by presuming that, in the latter case, the defendant was called as a witness by the plaintiff, and that the existence of the unstamped agreement was disclosed in the course of the plaintiff's case. If that had closed without evidence of an agreement in writing, it appears, on the authority of Magnay v. ment. (d) Cf. Hegarty v. Milne, 14 C. B. 627. (e) Buxton v. Cornish, 12 M. & W. 426. (f) 4 E. & B. 660. (g) 1 M. & G. 944. Knight, that the defendant could not have nonsuited the plaintiff by producing an unstamped written agreement. When it is necessary to produce a writing, or to account for its absence, secondary evidence will not be received if it appears that the original required a stamp, and that it was unstamped (h); but a writing requiring a stamp will be presumed to have been properly stamped (i); and as against a party refusing to produce a document after notice there is a similar presumption (k); but such a presumption may be rebutted by evidence that the writing was not stamped (1). If it is shown that a lost document was at one time unstamped, this fact alone will raise a presumption that it continued without a stamp (m). The court will not sanction an agreement to waive the objection for want of a stamp (n). When an instrument purports to have been stamped, but no stamp appears, or one partially effaced, the judge may receive the writing, if the want of the stamp or its erasures is satisfactorily explained to him (0). Where an instrument, so far as appears on the face of it, is properly stamped, the court is entitled to look outside the instrument in order to settle whether it is properly stamped or not (p); except, of course, when it bears a denoting stamp under s. 12 of the Stamp Act, 1891. An unstamped instrument, inadmissible as an agreement, may yet be admissible to prove a collateral or independent fact. Thus, a cheque, drawn beyond the legal limits, has been received to prove the receipt of (h) Vide supra, p. 313. (Hart v. Hart, 1 Hare, 1; cf. Pooley v. Goodwin, 4 A. & E. 94. (k) Crisp v. Anderson, 1 Stark. 85. (1) Crowther v. Solomons, 6 C. B. 758. (m) Marine Investment Co. v. Hariside, L. R. 5 E. & I. 624. (n) Owen v. Thomas, 3 M. & K. 353. (0) Doe v. Coombs, 3 Q. B. 687. (P) Maynard v. Consolidated Kent Collieries Corporation, [1903] 2 K. B. 121. money by a holder, but not to discharge the banker (q); an unstamped receipt to show that goods were sold to a third person, and not to the defendant (~); an unstamped agreement to show an illegal consideration for a debt (s); but it cannot be presented to a jury as evidence of any part of the substantial claim of a party (t). An unstamped document may be handed to a witness to refresh his memory, or to challenge it (u); and a document which requires a stamp for some purposes but not for others, will be strictly admissible for such latter purposes. Where a document is void as a receipt for want of a proper stamp, it may be made evidence of an account stated, or other outstanding accounts (x), or of a contract (y). An unstamped and unregistered assignment of a debtor's whole property may be given in evidence as an act of bankruptcy, although until stamped it cannot be received for the purpose of giving it effect or supporting any claim under it (z). A 10s. deed stamp on a mortgage is, however, insufficient to render it admissible as a deed for the purpose of showing that it passed the legal estate in the mortgaged property (a); and a promissory note insufficiently stamped with a penny receipt stamp cannot be given in evidence to prove the receipt of the money for which it is given (b). When an instrument is inadmissible by reason of the stamp laws it is allowable to resort to other admissible evidence. Thus, when a promissory note is defectively stamped, a holder may give evidence of the original consideration; as by showing on a count for money (1) Blair v. Bromley, 11 Jur. 617. (u) Birchall v. Bullough, [1896] 1 Q. B. 325. (x) Matheson v. Ross, 2 H. L. Cas. 301. (y) Evans v. Prothero, 1 De G. M. & G. 572. () Ex parte Squire, L. R. 4 Ch. 47. (a) Whiting to Loomes, 17 Ch. D. 10. (b) Ashling v. Boon, [1891] 1 Ch. 568. |