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 lent that the defendant has acknowledged the debt for which the note was given (~); and when a receipt is unstamped, payment may be proved by oral evidence (a). APPROPRIATED STAMPS. The 9th section of the Stamp Act, 1870, provides: "(1.) A stamp which by any word or words on the face of it is appropriated to any particular description of instrument is not to be used, or, if used, is not to be available; for an instrument of any other description. "(2.) An instrument falling under the particular description to which any stamp is so appropriated as aforesaid is not to be deemed duly stamped, unless it is stamped with the stamp so appropriated." ALTERATION OF A STAMPED DOCUMENT. A material alteration in a writing requiring a stamp, after it has been made or executed, avoids the stamp, and renders a fresh stamp necessary; but (z) Farr v. Price, 1 East, 56. it is otherwise if the alteration is immaterial, or according to the original intent of the parties (b). Thus, when the defect is unintentional, and the alteration makes the writing merely what it was intended originally to have been, it will not require to be restamped (c). Where a promissory note was made originally payable to the plaintiff, who complained that it ought to have been payable to order, it was held that, as between the parties to the note, the interlineation of the words, "or to order," did not render a new stamp necessary (d). So, when a bill is altered by the consent of parties before the note has issued, it will not require to be restamped; but when the bill has been issued, and the alteration is material and varies the essential character of the writing, so as to amount to a new contract, a new stamp will be required, notwithstanding the consent of the parties to the alteration (e). TIME OF OBJECTING TO THE WANT OF STAMP. Where an objection is raised to an instrument for want of a stamp, the objection should be taken as soon as the instrument is tendered, and before it is received in evidence. If the instrument is received, and read without objection, it cannot afterwards be (b) Master v. Miller, 1 Smith, L. C. 796. objected to for want of a stamp (f). It is doubtful whether a judge has not at least a discretionary power to reject a document which, after being put in, subsequently appears to be unstamped, or insufficiently stamped (g). Where a judge rules that a document is inadmissible on account of the insufficiency of the stamp his decision is open to review (h); but by Order 39, rule 8, of the R. S. C. 1883, it is provided that " a new trial shall not be granted by reason of the ruling of any judge that the stamp on any document is sufficient, or that the document does not require a stamp." (f) Robinson v. Lord Vernon, 7 C. B., N. S. 235. (g) Field v. Wood, 7 A. & E. 114. (h) Sharples v. Rickard, 2 H. & N. 57. CHAPTER X. AFFIDAVITS-NEW TRIALS-APPEALS-PERPETUATING TESTIMONY. THE 1st rule of Order 68 of the R. S. C. 1883, provides, that, "subject to the provisions of this order, nothing in these rules, save as expressly provided, shall affect the procedure or practice in any of the following causes or matters:-criminal proceedings; proceedings on the crown side of the Queen's Bench Division; proceedings on the revenue side of the Queen's Bench Division; proceedings for divorce or other matrimonial causes." Rule 2 of the same order provides that several orders specified in such rule, including Order 38, shall, as far as applicable, apply to all civil proceedings on the crown side and revenue side of the Queen's Bench Division. 20th section of the Judicature Act, 1875 (a), provides, that "nothing in this act or in the first schedule hereto, or in any rules of court to be made under this act, save as far as relates to the power of the court for special reasons to allow depositions or affidavits to be read, shall affect the mode of giving evidence by the oral examination of witnesses in trials by jury, or the rules of evidence, or the law relating to jurymen or juries." Although the prin (a) 38 & 39 Vict. c. 77. The ciples of evidence are not altered by the act, nevertheless that considerable alteration has been introduced in procedure, so far as it affects the mode of giving evidence in various cases, will be apparent from the allusions to and quotations from the new rules made in other portions of this work. By the 1st rule of Order 37 (1), discretionary powers are vested in the court, (1) to order any particular fact or facts to be proved by affidavits ; (2) to allow the affidavit of any witness to be read at a hearing or trial on such conditions as it may think reasonable, with this proviso, that when the opposite party bonâ fide desires to cross-examine a witness, and the witness can be produced, such witness's evidence shall not be allowed to be given by affidavit. The first of these powers, which can be exercised by the court even against the wishes of both parties, can be advantageously employed to the manifest saving of expense in proof of formal matters, even in trials by jury. The second, which, subject to the proviso, can be exercised by the court at the instance of one party, but against the wish of the other, enables, in proper cases, the evidence of an absent witness to be brought before the court without the expensive interposition of a commissioner or examiner. Subject to these powers, and to the rule that upon any motion, petition or summons, and that in default actions in rem, and on references in admiralty actions, evidence may be given by affidavit, and sub (b) For which see the Appendix. |