« EelmineJätka »
made by consent of the parties, and equally so, although made with consent, if the stamp laws are infringed.1 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.2 The same rule holds when the alteration is accidental, or by a stranger without the privity of either party.3
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 transaction is required to be in writing. 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.4
1 Master v. Miller, 1 Smith L. C. 490, and notes.
2 Burchfield v. Moore, 23 L. J. 261, Q. B.
3 Davidson v. Cooper, 11 M. & W. 778; S. C., 13 M. & W. 352. Boydell v. Drummond, 11 East, 142.
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 documents.
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 Jarties 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."
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 within twelve months from the making of the instrument; and if they are satisfied that the omission arose from accident, and without any intention to defraud the revenue.1
The party who objects to the want or sufficiency of a stamp must prove it; 2 and the judge will determine the question before the instrument can be shown to the jury. But when there is a dispute as to whether a proper amount of stamp duty has been paid, the adjudication of the Stamp Commissioners under the 13 & 14 Vict. c. 97, s. 14, is said to be final.4
Where an agreement, which appears to be in writing, is in dispute between parties, it must, according to the rule which requires the best evidence, be pro duced; and when produced, if it appear to require a stamp, it will be inadmissible unless it be properly stamped. Thus, where it appears in the course of a party's case that there is a written agreement, bearing directly on the points at issue, he must produce it duly stamped.5 Such an agreement cannot be treated as a nullity, if it be produced and appear to be unstamped; and therefore it has been held that a county court judge was wrong in allowing parol evidence to be given of an agreement contained in an unstamped writing.6 But where a party succeeds in establishing his case by oral evidence, the opposite party cannot defeat it ly merely producing an unstamped written agreement. Thus, where the plaintiff closed his case without anything appearing to show that there was a written agreement between her and the defendant as to the subject-matter of the action, the defendant was held not entitled to call for a nonsuit by producing a paper purporting to be an agreement, but unstamped.
1 13 & 14 Vict. c. 97, s. 12.
2 Doe v. Coombs, 3 Q. B. 687.
3 Jardine v. Payne, 1 B. & Ad. 670; Lord Tenterden.
case, although apparently contradicted by the recent case of Delay v. Alcock, will be reconciled with it by presuming that, in the latter case, the defendant was called as a witness by the plaintiff, and that the existence of the unstamped agreement was disclosed in the course of the plaintiff's case. If that had closed without evidence of an agreement in writing, it appears, on the authority of Magnay v. Knight, that the defendant could not have nonsuited the plaintiff by producing an unstamped written agreement.
When it is necessary to produce the writing, or account for its absence, secondary evidence will not be received, if it appear that the original required a stamp, and that it was unstamped. But a writing requiring
a stamp will be presumed to have been properly stamped; and so as against a party refusing to produce it after notice.3 But such a presumption may be rebutted by evidence that the writing was not stamped.4
When an instrument purports to have been stamped, but no stamp appears, or one partially effaced, the judge may receive the writing, if the want of the stamp or its erasure be satisfactorily explained to him.5
An unstamped instrument, inadmissible as an agreement, may yet be admissible to prove a collateral or independent fact. Thus, a cheque, drawn beyond the legal limits, has been received to prove the receipt of money by a holder, but not to discharge the banker ;6 an unstamped receipt to show that goods were sold to a third person, and not to the defendant ;7 an unstamped agreement to show an illegal consideration for a debt; but it cannot be presented to a jury as evidence of
1 R. v. Castle Morton, 3 B. & Ald. 588. 2 Pooley v. Goodwin, 4 A. & E. 94.
3 Crisp v. Anderson, 1 Stark. 85.
• Crowther v. Solomons, 6 C. B. 758.
5 Doe v. Coombs, 3 Q. B 687.