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 objected to for want of a stamp (ƒ). 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

P.

(d) Byron v. Thompson, 1 A. & E. 31.

(e) Bowman v. Nicholl, 5 T. R. 537.

(f) Robinson v. Lord Vernon, 7 C. B., N. S. 235.
(g) Field v. Wood, 7 A. & E. 114.

U U

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."

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

(a) 38 & 39 Vict. c. 77.

The

trials by jury, or the rules of evidence, or the law relating to jurymen or juries." Although the principles of evidence are not altered by the act, nevertheless that considerable alteration has been introduced into 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 Rules made in other portions of this work.

By the 1st rule of Order 37 (b), 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 parte 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 rules that upon

(b) For which see the Appendix.

any motion, petition or summons (c), and that in default actions in rem, and on references in admiralty actions (d), evidence may be given by affidavit, and subject to any statutory rule creating an exception (e), every witness, at the trial of any action or at any assessment of damages, must be examined virâ voce and in open court; although if the solicitors of all parties to an action agree, the evidence therein may be taken by affidavit. That such an agreement ought to be entered into in the majority of actions for partition and the like, as well as in all actions where the object of all the parties is to obtain a judicial decision upon facts as to which there is little if any dispute, is tolerably certain; but in all actions where the parties are at arms' length, it obviously is theoretically right that the witnesses should be examined vivâ voce and in open court. That affidavit evidence has its merits as well as demerits may be conceded, but the latter certainly outweigh the former. The two chief defects in affidavit evidence are, that the court has no opportunity of observing the demeanour of the witness while under examination, and that the version given of the story is too often that of the lawyer who prepares the affidavit rather than that of the deponent. The agreement to take the evidence by affidavit must be a formal

(c) Rule 1 of Order 38.

(d) Rule 2 of Order 37.

(e) E.g., the Bankers' Books Evidence Act, 1879, for which vide supra, p. 149.