When the receipt is expressed or acknowledged therein to be in full of all demands

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A written acknowledgment that a debt on demand has been settled, balanced, or otherwise satisfied, though unsigned, is a receipt within the act. A general acknowledgment of the payment or settlement &c. of a debt, without specifying its amount, or of the receipt of a specified sum in full of any such debt, is to be charged with a 10s. duty. And payment by bills, notes, drafts, or other securities is to be taken as payment of money.

By the statute 3 & 4 W. 4. c. 23. s. 1., receipt stamps for any sum

under 5. are abolished.

The following are, among others, exempt from duty :

Receipts written on bills, notes, or drafts, duly stamped; or on bills drawn out of, but payable in, Great Britain.

Letters by the post acknowledging the safe arrival of bills, notes, or securities for money.

Receipts on any bond, mortgage, or other security, or on any conveyance deed, or instrument, duly stamped, acknowledging the receipt of consideration money, principal, or interest.

Releases by deed duly stamped.

For further provisions respecting receipts, and the consequence of omitting to have them stamped, see 35 G. 3. c. 55.

An acknowledgment of having received acceptances, with an undertaking to provide for them, has been held to require a receipt stamp. Scholey v. Walsby, Peake, 24. So a bill of parcels subscribed "settled by two bills, one at nine, the other at twelve months," was held by Lord Ellenborough to be an acquittance which could not be evidence unless stamped. Smith v. Kelly, Peake, 25. (n); S. C. 4 Esp. 249. So the word "settled" under a bill. Spawforth v. Alexander, 2 Esp. 621. An account containing acknowledgments of sums received, made at successive times upon the payment of the money, requires a stamp; it differs from an account current, where the sums stated to be received are not written in the account at and upon the receipt of the money, but long after, and only amount to admissions of money received at an antecedent time. Wright v. Shawcross, 2 B. & A. 501. (n). See Jacob v. Lindsay, 1 East, 460. Hawkins v. Warre, 3 B. & C. 696. A mere acknowledgment, not of the payment of money, but of a sum due and owing (as an I. O. U., signed by the party), requires no receipt stamp. Fisher v. Leslie, 1 Esp. 426. Israel v. Israel, 1 Camp. 499. Childers v. Boulnois, D. & R. N. P. C. 8.; but see Guy v. Harris, Chitty on Bills, 428., 5th ed. But such an instrument may, by the addition of other matter, amount to a note or agreement; see cases, suprà, p. 171. Where it is made solely to avoid the Statute of Limitations, it is expressly exempted from an agreement stamp. See antè, p. 159. instrument in these terms, " Mr. T. has left in my hands 2001.," Tom

An

kins v. Ashby, 6 B. & C. 541., or in these, "I have in my hands three bills which amount to 120/. 10s. 6d., which I have to get discounted or return on demand," Mullett v. Huchison, 7 B. & C. 639., requires no stamp. So the acknowledgment of the correctness of an account, containing a statement of sums advanced and disbursements made, has been held to require no stamp. Wellard v. Moss, 1 Bing. 134. A receipt is not inadmissible, as such, because it notices the terms and consideration upon which the money was paid. Watkins v. Hewlett, 1 B. & B. 1. So although it contain subsequent matter of agreement, and has no agreement stamp; Odye v. Cookney, 1 M. & Rob. 517.; unless the agreement controls or qualifies what goes before, when the paper will be inadmissible without an agreement stamp. Grey v. Smith, 1 Camp. 387. Where the indorsements of receipts on a bond have left no blank space for receipts of subsequent payments to be written on the bond, such receipts, written on an unstamped piece of paper annexed to the bond, are within the exemption of 55 G. 3. c. 184., schedule, part 1., and admissible. Orme v. Young, 4 Camp. 336. unstamped receipt may be used by a witness to refresh his memory. Rambert v. Cohen, 4 Esp. 213. See antè, p. 131.

Release.

An

Any deed or instrument of release and renunciation of lands or other property real or personal, or of any right or interest therein (such deed not being otherwise charged in the schedule 55 Geo. 3. c. 184., nor expressly exempted from all duty), requires a stamp of 35s., and a progressive duty on the number of words, as in deeds.

Surrender.

A surrender of a term of years, or of any freehold or uncertain interest in lands &c. not being of copyhold or customary tenure, requires a 35s. stamp, and a progressive duty on words, as in deeds.

Where some of the executors of a tenant from year to year signed an instrument, renouncing and disclaiming, and also surrendering and yielding up" to the landlord all right, title, &c. in the premises; and the landlord thereupon brought ejectment; held that such instrument was a surrender, and not a disclaimer, and therefore could not be put in evidence for the plaintiff without a surrender stamp. Doe v. Stagg, 5 New Ca. 564.

COURSE OF EVIDENCE AND PRACTICE AT NISI PRIUS.

When the jury are sworn, the junior counsel for the plaintiff opens the pleadings; after which, if the proof of the issue rests on the plaintiff, the senior or leading counsel states the case to the jury, and after witnesses have been examined in support of it, the counsel for the defendant is heard. If he calls any witnesses, the plaintiff's counsel has the general reply. Where there are several issues, some of which are incumbent on the plaintiff, and others on the defendant, it is usual for the plaintiff to begin and to prove those which are essential to his case; Jackson v. Hesketh, 2 Stark. 521.; the defendant then does the same; and the plaintiff is then entitled to go into evidence to controvert the defendant's affirmative proofs. The defendant's counsel is entitled to comment by way of reply upon such last-mentioned evidence in support of his own affirmatives; and the pliantiff's counsel to a general reply.

Where a party tenders documentary evidence primâ facie admissible, the other party will not be allowed to interpose with evidence for the purpose of excluding it. Thus, where plaintiff tendered an examination of defendant taken before bankruptcy commissioners, the defendant was not permitted to call witnesses to prove, before the examination was read, that it was incomplete and therefore inadmissible. Such evidence, if not obtained by cross-examination, must be postponed as part of the defendant's case. Jones v. Fort, M. & M. 196. But evidence to disprove possession of an instrument, of which secondary evidence is tendered, may be given immediately. Harvey v. Mitchell, 2 M. & Rob. 366.

It was laid down as a general rule by Lord Ellenborough that when, by pleading or notice, the defence is known, the counsel for the plaintiff is bound to open the whole case in chief, and cannot proceed in parts, unless some specific fact be adduced by the defendant, to which the plaintiff can give an answer; but that he cannot go into general evidence in reply. Rees v. Smith, 2 Stark. 31. And this appears to be still the rule where a single fact or transaction forms the whole subject of dispute between the parties, which is affirmed on one side and denied on the other. Thus, where the plaintiff's title to a mine was in issue, and the plaintiff relied on primâ facie evidence arising from possession, he was considered not to be entitled to support his case in reply by general evidence of his title; Rowe v. Brenton, 3 M. & R. 139. 281.; (on a trial at bar; but the objection was waived by the defendant). But where the defendant traverses, and also specially justifies, the plaintiff may reserve his case on the special pleas until the defendant has proved them; Browne v. Murray, R. & M. 254., and note ib. ; or he may enter upon the disproof of them in the first instance; in which case he will not be allowed to give further evidence of the same kind in reply. S. C. Where the plaintiff sued on several bills of exchange, and defendant pleaded a set-off, the plaintiff was allowed to prove the balance in the first instance, and then, after the defendant had proved his set-off, to prove further sums due, so as to exceed the set-off'; and per Lyndhurst C. B., "Either way may be correct, and it must be left to the discretion of the judge." Williams v. Davies, 1 C. & M. 464.

Both parties are bound by the view taken of their respective cases, and the mode of conducting them, by their counsel at the trial; and if the verdict be against them, they cannot move for a new trial upon grounds omitted to be enforced at Nisi Prius. See Doe v. Needs, 2 ̊M. & W. 129. Henn v. Neck, 3 Dowl. P. C. 163. Short v. Kalloway, 11 A. & E. 28. And where counsel offers evidence for one purpose which the judge rejects, he will not, after the trial, be permitted to rely upon it as admissible for another purpose. R. v. Grant, 5 B. & Ad. 1081. Nor can he complain of misdirection upon a point which he has, in effect, waived at Nisi Prius. Robinson v. Cook, 6 Taunt. 336. And where evidence has been admitted, without objection, as relevant to the issue, it cannot be objected to as inapplicable after the judge has begun to sum up. Abbott v. Parsons, 7 Bing. 563. Where the judge has, in the opinion of counsel, omitted to submit some material point or view of the case to the jury, he ought, it seems, to be reminded of it. See Magor v. Chadwick, 11 A. & E. 584, 585. Wedge v. Berkeley, 6 A. & E. 663. But counsel will not, it is apprehended, be taken to have acquiesced in the summing up of the judge in point of law, merely because he has not interposed at the time.

When the plaintiff is to begin.] It is often a subject of inquiry whether the plaintiff or the defendant is to open the facts and evidence to the jury. This may be an advantage, and is then claimed as a right; as where evidence is anticipated on the opposite side which will give a right to reply generally on the whole case; or it may be a burden; as where a party relies on the witnesses of his opponent, or on the difficulty of the proofs incumbent on him.

The right, or obligation, to begin depends on the form of the issue and on the rules respecting the onus probandi (see antè, p. 71.); and the test has been said to be, not on which side the affirmative lies, but which side will be entitled to a verdict if no evidence be given. Thus, where the plaintiff declared for unworkmanlike execution of a contract, and defendant pleaded that it was executed in a workmanlike way, and thereupon issue was joined, it was held that plaintiff was to begin; for it was not to be assumed that the work was bad; per Alderson B., Amos v. Hughes, 1 M. & Rob. 464. So where, in an action by indorsee against acceptor, defendant pleaded that the bill was for the drawer's accommodation, and that plaintiff did not give any consideration to the drawer; to which plaintiff replied that it was indorsed to him by the drawer for a good consideration: held that, as a consideration is presumed, the defendant must begin by proving the want of it, or some suspicious circumstances to throw the proof on the plaintiff. Mills v. Barber, 1 M. & W. 425. Acc. Lewis v. Parker, 4 A.& E.838. Where, in a declaration on a policy on a life, the plaintiff averred that the deceased had led a temperate life, which was denied by the plea; held that the onus probandi, and therefore the right to begin, was with the plaintiff; though it was contended that intemperance was not to be presumed. Huckman v. Fernie, 3 M. & W. 505. Acc. Rawlins v. Desborough, 2 M. & Rob. 70. But where the declaration set out a policy conditioned to be void in case of misrepresentation as to the habits and health of the deceased, and averred that there was no misrepresentation; and the pleas relied on an untrue statement in this, to wit, that the habits of deceased were prejudicial to health, and his health was

unsound; to which de injuriâ &c. was replied; Tindal C. J. held that defendant was to begin. Pole v. Rogers, 2 M. & Rob. 287. Where an issue on the sanity of a person is directed by Chancery, the court will presume that the person ordered to be plaintiff is to begin. Frank v. Frank, ib. 314.

In many cases where damages, and not the decision of a mere right, have been the object of an action, defendants have been used so to plead as to take an affirmative issue on themselves, and thereby exclude the plaintiff's right to a general reply. The judges have, however, come to a resolution, which has been stated in the following terms: "In cases of slander, libel, and other actions, where the plaintiff seeks to recover actual damages of unascertained amount, he is entitled to begin, although the affirmative of the issue may, in point of form, be with the defendant." Carter v. Jones, 1 M. & Rob. 281.; S. C. 6 C. & P. 64. The rule has been stated somewhat differently, and has been, in some cases, confined to " personal injuries, as assaults, libel, &c." Parke B., in Wootton v. Barton, 1 M. & Rob. 518.; and, in others, to cases where the action is brought for "malicious injuries, where the amount of damage is not matter of calculation, but is liable to be increased by matter urged in aggravation." Tindal C. J., in Reeve v. Underhill, id. 440. Hence covenant for damages, though unascertained, is not within it. S. C. So trespass de bonis, where the real question is the rateability of the plaintiff's house. Burrell v. Nicholson, id. 304. So in trespass, q. c.f., where the defendant pleaded a custom to divert water, which was traversed by the plaintiff, the defendant was allowed to begin; though the plaintiff's counsel asserted his intention to ask for heavy damages. Bastard v. Smith, 2 M. & Rob. 129. ; and, per Tindal C. J.," The plaintiff might have traversed the custom and new assigned excess, and then would have had a right to begin." Ibid. 132.

In the case of Absalom v. Beaumont, 1 M. & Rob. 441. (n), Lord Denman is said to have ruled that," wherever any affirmative proof lies on the plaintiff to shew what damages he is entitled to, he has a right to begin." That case was an action on a policy against fire, and all the pleas were affirmative; and his lordship is said to have distinguished the case from a life insurance, where the sum is ascertained; see dict. arguendo in Bastard v. Smith, suprà. In Cann v. Facey, cor. Gurney B., Exeter Sum. As. 1835, in an action of trespass for shooting a dog, where defendant justified to prevent it from trespassing, the plaintiff was held entitled to begin, though the defendant offered to admit the value of the dog; for, per Cur.," the plaintiff may have damages beyond that amount;" and a similar ruling by Lord Tenterden was cited. So in Mills v. Stephens, Exeter Spring As. 1838, Bosanquet J. held that plaintiff had a right to begin in a case of trespass for breaking into his house, where the issue was on a plea of leave and license.

Where any one of several issues throws the onus of proof on the plaintiff, he has a right to begin as to all; Rawlins v. Desborough, 2 M. Rob. 328.; and it has been held in an action for a libel, that judg. ment by default as to part has the same effect, though the defendant pleads affirmatively as to the residue. Wood v. Pringle, 1 M. & Rob. 277. But where, to an action on a bill and on an account stated, defendant pleaded payment to the first, and non-assumpsit to the second count, it was held that plaintiff has no right to begin unless he have some evidence to offer of the account stated besides the bill. Smart v.