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 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 sect. 18 of the Stamp Act, 1870, 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." 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 51. (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 (b) Doe v. Coombs, 3 Q. B. 687. (c) Per Lord Tenterden, Jardine v. Payne, 1 B. & Ad. 670. (d) Hegarty v. Milne, 14 C. B. 627. 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 agreement. Thus, 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. Knight, that the defendant could not have nonsuited (e) Buxton v. Cornish, 12 M. & W. 426. (f) 4 E. & B. 660. (g) 1 M. & G. 944. the plaintiff by producing an unstamped written agreement. When it is necessary to produce the 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 (j); but such a presumption may be rebutted by evidence that the writing was not stamped (k). 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 (7). The court will not sanction an agreement to waive the objection for want of a stamp (m). 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 erasure is satisfactorily explained to him (n). When an instrument, so far as appears on the face of it, is properly stamped, it is a question whether the court is entitled to look outside the instrument in order to settle whether it is pro (h) Vide supra, p. 378. (i) Hart v. Hart, 1 Hare, 1; cf. Pooley v. Goodwin, 4 A. & E. 94.. (j) Crisp v. Anderson, 1 Stark. 85. (k) Crowther v. Solomons, 6 C. B. 758. (1) Marine Investment Co. v. Haviside, L. R., 5 E. & I. 624; 42 L. J., Ch. 173. (m) Owen v. Thomas, 3 M. & K. 353. (n) Doe v. Coombs, 3 Q. B. 687. perly stamped or not. The case of Gatty v. Fry (0) was decided on the principle that under such circumstances the court must look at the instrument alone; and it was there held that a cheque which was in fact post-dated to the knowledge of the person who took it and sued upon it was admissible in evidence. It had only a penny stamp, whereas, being post-dated, it was liable to an ad valorem duty as a bill of exchange. The court held that they could only look at the cheque, and as it was payable on demand at the time of the trial, it was, on the face of it, properly stamped. This case was cited to the Queen's Bench Division in the later case of Clarke v. Roche (p). This was a case where a deed, dated the 3rd of February, 1875, bore a 10s. stamp, which was primâ facie sufficient. This deed was, in fact, executed before the Stamp Act of 1870 came into operation, and therefore required a 35s. stamp. This fact being proved, the judge at the trial refused to admit the deed in evidence, and the Queen's Bench Division held that he was right, and that Gatty v. Fry was distinguishable. It would seem, however, that if one decision was right the other must be wrong, as the whole question appears to turn upon whether or not evidence is admissible to prove that the 17th section of the Stamp Act has not been complied with. An unstamped instrument, inadmissible as an agreement, may yet be admissible to prove a collateral or independent fact. Thus, a cheque, drawn (0) L. R., 2 Ex. D. 265; 46 L. J., Ex. 605; 25 W. R. 306. (p) L. R., 3 Q. B. D. 170; 47 L. J., Q. B. 147; 26 W. R. 112. beyond the legal limits, has been received to prove the receipt of money by a holder, but not to discharge the banker (2); 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). It may be handed to a witness to refresh his memory; and if it requires a stamp for some purposes but not for others, it will be strictly admissible for such latter purposes. Where a document is void as a receipt for want of a stamp, it may be made evidence of an account stated, or other outstanding accounts (u). 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 (x). 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 (y). Where an instrument is inadmissible by reason of the stamp laws it will be allowable to resort to other (q) Blair v. Bromley, 11 Jur. 617, (x) Ex parte Squire, L. R., 4 Ch. 47; 17 W. R. 40. (y) Whiting to Loomes, L. R., 17 Ch. D. 10; 50 L. J., Ch. 463; 29 W. R. 435. |