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subsequently to its execution, with the privity of the parties, and there be no fraud on or evasion of the stamp laws, its validity may be maintained. But if the alteration be material (s), as if the date (t), or amount, or time of payment of a bill of exchange be altered (u), or a joint responsibility converted into a joint and several responsibility (x); the instrument will be void, unless the alteration was made by consent of the parties; and equally so, although made with consent, if the stamp laws are infringed (y). So, where a bill has been altered with the privity of an indorser and his indorsee, but without the privity of the acceptor, the latter is discharged (z). The same rule holds when the alteration is accidental (a), or by a stranger without the privity of either party (b). Parol evidence may be called to show that a variation between a bought note and a sold note is immaterial (c).

The last case requiring notice in this chapter is when a contract is partly in writing and partly verbal ; or when terms are offered in writing, and accepted verbally. At common law, such a combination of written and verbal evidence is strictly admissible to prove a complete contract, but not where the contract or other

(s) Gardner v. Walsh, 5 E. & B. 83.
(t) Clifford v. Parker, 2 M. & G. 905.
(u) Warrington v. Early, 2 E. & B. 763.

(x) Alderson v. Langdale, 3 B. & Ad. 660.

(y) Perring v. Hone, 4 Bing. 28.

(z) Master v. Miller, 1 Smith L. C. 796, and notes.

(a) Burchfield v. Moore, 3 E. & B. 683.

(b) Davidson v. Cooper, 11 M. & W. 778; S. C. 13 M. & W.

352; Crookwit v. Fletcher, 1 H. & N. 293.

(c) Holmes v. Mitchell, 7 C. B. N. S. 361.

transaction is required to be in writing (d). Thus, a contract, required by the Statute of Frauds to be in writing, must be wholly in writing; and such a contract cannot be proved by writings which require oral evidence to complete or connect them (e).

(d) Kempson v. Boyle, 3 H. & C. 363.
(e) Boydell v. Drummond, 11 East, 142.

CHAPTER XI.

ON STAMPS.

In this chapter only the leading principles of the numerous stamp laws will be stated, so far as they control the admissibility in evidence of written docu

ments.

The general rule is that, where a stamp is essential to the legal validity of a writing, the writing cannot be given in evidence in civil proceedings, if it be unstamped, or insufficiently stamped.

This rule does not extend to criminal proceedings, for, by the 17 & 18 Vict. c. 83, s. 27, it is enacted that "every instrument liable to stamp duty shall be admitted in evidence in any criminal proceeding, although it may not have the stamp required by law impressed thereon, or affixed thereto."

The strictness of the rule has also been recently relaxed in the case of proceedings in the superior common law courts by the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125, ss. 28, 29), which requires the officer of the court to direct the attention of the court at the trial to any apparent insufficiency of the stamp; and empowers him to affix the proper stamp, on payment of the amount and penalty from the party tendering the writing in evidence. The following are the sections :

Sect. 28. "Upon the production of any document

as evidence at the trial of any cause, it shall be the 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."

Sect. 29. "Such officer of the court shall, upon payment 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 same moneys to the Receiver-General of the Inland Revenue, or to such person as the said commissioners shall

appoint or authorize to receive the same; and the said commissioners shall, upon request and production of the receipt hereinbefore mentioned, cause such document 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 31st section enacts, that "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." A judge holding a stamp to be sufficient should not reserve the question of sufficiency for the court above (a).

The three sections, quoted above, must be held as confined to the superior courts of common law, to which the operation of the act is restricted. In all other courts, except criminal courts, or where the benefit of the above act is not claimed by the party tendering the unstamped or defectively-stamped writing, the writing will be primâ facie inadmissible, if it be the foundation of the party's case, or essential to it.

A deed or instrument requiring a stamp should be stamped before it is executed or signed; and where it is tendered to be stamped after the execution or signature, a penalty in addition to the amount of the stamp will be payable; but the Commissioners of the Inland Revenue have the power of remitting the penalty, if an application for the remission be made

(a) Siordet v. Kneyinski, 17 C. B. 251.

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