The governing words of this section are "to the validity of which attestation is not requisite." The meaning of this may be gathered from the Commissioners' Report (supra, p. 21.) Generally speaking, where attestation is necessary to the vali-. dity of an instrument, it is required by some statute, or under a power which requires the instrument to be executed in the presence of witnesses. See the examples put in the report. Should, however, the fact that attestation is necessary to the validity of the instrument to be proved, be overlooked before trial, and the attesting witness not be produced, the judge, under sect. 19, may adjourn the trial, that the deficiency may be supplied. of disputed writing. 27. Comparison of a disputed writing with any Comparison writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute. The evidence of the genuineness of the writing which is to be proved to the satisfaction of the judge, must be clear and legal evidence, that is to say, the judge cannot make up his mind as to the genuineness of such writing by comparison, or by any other than the evidence which would have been admissible before this act, to prove handwriting. When the judge has admitted any writings as genuine and for the purpose of comparison with the disputed writing, such writings, and the evidence of witnesses respecting the same, i. e. the legal evidence used as proof of the genuineness, may be submitted to the court and jury. "Comparison of the disputed writing with such writings shall be permitted to be made by witnesses;" this seems large enough to let in, not only the evidence of witnesses who have a knowledge of the party's handwriting, but of persons practised in the examination of handwriting, who have no knowledge of the party's handwriting, but who profess to state whether a writing is in a feigned or genuine hand (Roscoe on Evid. 100. 7th edit.) Provision for 28. Upon the production of any document as stamping evidence at the trial of any cause, it shall be the at the trial. documents Officer of the ceive the duty and penalty. duty of the officer of the court whose duty it is to read such document to call the attention of the judge to any omission or insufficiency of the stamp; and the document, if unstamped, or not sufficiently stamped, shall not be received in evidence until the whole or (as the case may be) the deficiency of the stamp duty, and the penalty required by statute, together with the additional penalty of one pound, shall have been paid. If an objection is raised to the insufficiency of the stamp upon any instrument, and the judge at the trial does not rule that the stamp is sufficient, and there is any doubt about the matter, the most prudent course appears to be to ask for an adjournment of the trial, that the opinion of the Commissioners of Inland Revenue may be taken under 13 & 14 Vict. c. 97, s. 14, as to the stamp duty, with which the instrument is chargeable, for if they rule that the stamp is sufficient, that is binding upon the Superior Courts: (per Parke, B., Prudential Association v. Curzon, 8 Exch. 97), and if they decide otherwise, there is an appeal against their decision: (13 & 14 Vict. c. 97, s. 15.) Whereas, if the objection to insufficiency of the stamp is yielded to at the trial, and the penalties paid to the officer of the court pursuant to the next section, and it should turn out that the instrument was properly stamped in the first instance, there seems no mode of getting back the money so paid by mistake, except by the troublesome mode of petitioning the Commissioners of Inland Revenue. But, if the judge, at the trial, rules that the stamp is sufficient, or that the instrument does not require a stamp, that is conclusive for the purposes of the trial (sect. 31.) 29. Such officer of the court shall, upon paycourt to re- ment to him of the whole or (as the case may be) of the deficiency of the stamp duty payable upon or in respect of such document, and of the penalty required by statute, and of the additional penalty of one pound, give a receipt for the amount of the duty or deficiency which the judge shall determine to be payable, and also of the penalty, and thereupon such document shall be admissible in evidence, saving all just exceptions on other grounds; and an entry of the fact of such payment and of the amount thereof shall be made in a book kept by such officer; and such officer shall, at the end of each sittings or assizes (as the case may be), duly make a return to the Commissioners of the Inland Revenue of the moneys, if any, which he has so received by way of duty or penalty, distinguishing between such moneys, and stating the name of the cause and of the parties from whom he received such moneys, and the date, if any, and description of the document for the purpose of identifying the same; and he shall pay over the said moneys to the Receiver General of the Inland Revenue, or to such person as the said Commissioners shall appoint or authorise to receive the same; and in case such officer shall neglect or refuse to furnish such account, or to pay over any of the moneys so received by him as aforesaid, he shall be liable to be proceeded against in the manner directed by the eighth section of an act passed in the session of Parliament holden in the thirteenth and fourteenth years of the reign of her present Majesty, intituled An Act to repeal certain Stamp Duties, 13 & 14 Vict. and to grant others in lieu thereof, and to amend c. 97. the Laws relating to the Stamp Duties; and the said commissioners shall, upon request, and production of the receipt hereinbefore mentioned, cause such documents to be stamped with the proper stamp or stamps in respect of the sums so paid as aforesaid: provided always, that the aforesaid enactment shall not extend to any document which cannot now be stamped after the execution thereof on payment of the duty and a penalty. The officer, at the end of each sittings, is to make a return of the moneys received. Although it is not expressly provided No document under this that the moneys received are to be paid over at the end of each sitting, yet having regard to the period and object of the return, and the mode in which the statement of the public revenue for each quarter is made up, it would seem that the moneys should be paid over, as soon as convenient, after the return is made. The officer for the purposes of this section, appears to be the officer of the Commissioners of Inland Revenue, and not the officer of the court; and money received by him under this section, is not in the nature of money paid into court, with which the court could deal, and order to be refunded if paid in by mistake. Therefore, as suggested in the previous note, the proper mode of getting back stamp duties and penalties paid to the officer by mistake, or under pressure at the trial, under this section seems to be by petition to the Commissioners of Inland Revenue and not by motion to the court. 30. No document made or required under the act to require provisions of this act shall be liable to any stamp duty. a stamp. No new trial for ruling as to stamp. Error may be brought case. 31. No new trial shall be granted by reason of the ruling of any judge that the stamp upon any document is sufficient, or that the document does not require a stamp. 32. Error may be brought upon a judgment on a special upon a special case in the same manner as upon a judgment upon a special verdict, unless the parties agree to the contrary; and the proceedings for bringing a special case before the Court of Error shall, as nearly as may be, be the same as in the case of a special verdict; and the Court of Error shall either affirm the judgment or give the same judgment as ought to have been given in the court in which it was originally decided, the said Court of Error being required to draw any inferences of fact from the facts stated in such special case which the court where it was originally decided ought to have drawn. Questions of fact may be stated without formal pleadings for trial by jury (16 & 17 Vict. c. 76, s. 42, C. L. Proc. Act, 1852), and questions of law may be raised in a special case for the opinion of the court (ibid. s. 46.) But there is no provision which compels the court to draw inferences of fact from the facts stated in a special case. The Court of Queen's Bench sometimes undertakes the duty, "somewhat unusually and irregularly cast upon it, of drawing conclusions from facts." In Price v. Quarrell, 12 A. & E. 788, it was said, in the judgment of the court, that the court undertook the duty there without intending thereby to create a precedent in order to save the great additional expense of a trial. The Court of Common Pleas sometimes declines the duty (Aldridge v. Great Western Railway Company, 3 M. & G. 515), but see Engstrom v. Brightman, 5 C. B. 419. In cases where the court undertakes the duty of drawing inferences of fact from the facts stated in such special case, this section gives an appeal should they draw wrong inferences, for the Court of Error "is required to draw any inferences of fact which the court below ought to have drawn." be stated in 33. In every rule nisi for a new trial or to Grounds to enter a verdict or nonsuit, the grounds upon rule nisi for which such rule shall have been granted shall be new trial. shortly stated therein. This section assimilates the practice to that on rules to set aside awards (see Pract. Rules, Hil. T. 1853, r. 169; Chit. Arch. 1505, 8th edit.) As to the sufficiency of the statement of objections in rules nisi, see Rawsthorne v. Arnold, 6 B. & C. 629; Boodle v. Davies, 3 A. & E. 200; Allenby v. Proudlock, 4 Dowl. 54; Gray v. Leaf, 8 Dowl. 654; Dunn v. Walters, 9 M. & W. 293.) verdict or 34. In all cases of rules to enter a verdict or If rule nisi nonsuit upon a point reserved at the trial, if the to enter a rule to show cause be refused or granted and nonsuit purthen discharged or made absolute, the party de- leave be cided against may appeal. suant to refused, party may rule for mis 35. In all cases of motions for a new trial appeal. upon the ground that the judge has not ruled Appeal upon according to law, if the rule to show cause be direction in refused, or if granted be then discharged or made law. absolute, the party decided against may appeal, provided any one of the judges dissent from the H |