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that there is a written agreement, he cannot afterwards be called upon to produce it (e). And since the 6 Geo. IV. c. 57, s. 2(f), a settlement by renting a tenement can only be acquired where the same has been bona fide rented for a year, at 101. a year, so that it is necessary to ascertain the terms of holding; it is essential in a settlement case of that description to produce the written demise (g). The Court of Common Pleas, in the case of Strother v. Barr (h), were equally divided in opinion upon the question, whether in an action for an injury to the plaintiff's reversion in premises, after proof that the premises were devised to the plaintiff, it could be shown by oral testimony, that an occupier held as his tenant, in order to establish the reversionary interest, there being a written demise to the tenant. In a subsequent case (i), where the question was not merely whether the defendant held certain premises, but whether he held them as tenant to P., it was held, that as the defendant held under a written agreement, it ought to be produced, and parol evidence of the holding could not be received.
The case of Fielder v. Ray (k) establishes a very important rule upon this subject, namely, that after the plaintiff has proved by witnesses an express or implied oral contract, without disclosing that there was a written agreement, he cannot be nonsuited by the defendant's producing an unstamped written instrument, purporting to contain the terms of the contract. In such case the defendant cannot avail himself of the contract for any purpose, without having the instrument stamped. Tindal, C. J., observed,—" It has been argued, that if it be shown that
(c) Marston v. Dean, 7 C. & P. 13. (h) Strother v. Barr, 5 Bing. 136 ;
Explained and amended by 1 2 M. & P. 207, S. C. See Cotterill Will. 4, c. 18. See the statute and v. Hobby, 4 B. & C. 465; 6 D. & R. cases collected, Chit. & Hulme's Stat. 551, s. C. 804, 805.
(i) Doe v. Harvey, 8 Bing. 239. It (8) Rer v. The Inhabitants of Mer- was trespass for mesne profits. thyr Tydvil, 1 B. & Ad. 29. In a prior (k) 3 M. & P. 659; 6 Bing. 332, case, under former statute, where the S. C. See Stephens v. Pinney, 8 proofs necessary for establishing this Taunt. 327; 2 Moore, 349, S. C.; and kind of settlement were only that a see Rer v. Inhabitants of Padstow, 1 tenancy eristed, and that the value of N. & M. 9; 4 B. & Ad. 208, s. C., the tenement was 101. a year, without which establishes that defendant must regard to the terms of the demise; the produce a written agreement, (duly court held that the written agreement stamped), if its existence be not disneed not be produced; Rex v. The closed by plaintiff's witnesses; and Inhabitants of the Holy Trinity, 7 B. see Marston v. Dean, 7 C. & P. 13, & C. 611. See Rex v. Inhabitants of S. P. Rauden, 8 id. 708.
a contract is evidenced by writing, it is immaterial whether this appear on cross-examination of the plaintiff's witnesses, or in the course of the defendant's evidence. But there is this difference in the case, that if it appear by the testimony of the plaintiff's witness, the absence of the writing is an inherent defect in his cause, which it is incumbent on him to get over ; whereas if it appear from the defendant's witness, it is an objection which the defendant must substantiate by the production of the instrument in the regular way, otherwise this inconvenience might follow, that the plaintiff might, on a mere assertion of the defendant, be nonsuited for the non-production of a written instrument, which, if it had been produced, might turn out not to apply to the contract in question.”
Where an agreement has been lost, or even wrongfully destroyed by the party chargeable, no action can be maintained thereon, if it appear that it was unstamped when lost or destroyed (1). In the former case it seems to be incumbent on the claimant who has lost the instrument to prove that it was duly stamped. But there may be a presumption in some cases, and perhaps in the latter instance, that the instrument was stamped; and if a party refuse to produce an agreement after notice, this presumption will certainly be made (m) until he rebut it. And where an apprentice had regularly served under an indenture
(1) Rer v. Castlemorton, 3 B. & 2 C. & P.97; T. Chitty's Arch. 1065. Ald. 583; Rippener v. Wright, 2 id. (m) Crisp v. Anderson, 1 Stark. R. 478. Trover lies for an unstamped 35. If produced by the adversary, it agreement, Scott v. Jones, 4 Taunt. must have a stamp, or it cannot be 865; and in Bousfield v. Godfrey, 2 used in evidence by the party calling M. & P. 771, S. C.; 5 Bing. 418, for it. Where a party wishes to have where the defendant surreptitiously at the trial the benefit of a written unobtained possession of a written agree- stamped agreement in the hands of his ment unstamped, and thereby pre- opponent, the proper course is to take vented the plaintiff from stamping it out a summons, or apply to the court, within twenty.one days, as intended, calling upon the latter to allow an in and then swore that he had lost or
spection and copy, and to produce the destroyed the instrument, the court agreement at the Stamp Office to be ordered that he should produce a copy stamped, if necessary, at the expense in his possession; and that if the of the party wanting it; or in default plaintiff produced that copy stamped thereof, that no objection to the want at the trial, defendant should be pre- of a stamp be made at the trial, and cluded from producing the original. that a copy be stamped, if necessary, If the plaintiff's part of a deed exe- and be permitted to be read in evi. cuted by defendant was duly stamped, dence. See Tidd, 9th ed. 487-590. and then lost, and defendant pro- Bousfield v. Godfrey, 5 Bing. 418. duced his part on notice, the latter, This may be done where one part of though unstamped, may be read as the agreement is lost ; Neale v. Swind, part of the secondary evidence; Munn 2 C. & J. 278; 1 Chit. Arch. 1064, v. Godbold, 3 Bing. 292; 11 Moo. 49; 1065.
executed thirty years before, and the parish in which the apprentice was settled under that indenture had relieved him for the last twelve years, it was held that the sessions had rightly presumed that the indenture which was lost was duly stamped, although it was proved on the other side by the deputy registrar and comptroller of the apprentices' indentures, that it did not appear that any such indenture had been stamped or inrolled (n).
For some collateral purposes, an unstamped instrument may be read; as to establish fraud (6), or crime (p), or to show the illegality of the subject matter of such ageement, and the transaction between the parties (T); and if a bill or other security be given upon a wrong stamp, or without a stamp, for a pre-existing debt, an action lies for the debt, without reference to the instrument (r).
Agreements (s), whether by deed, or merely in writing, may be stamped at any time before they are produced at the trial (t); and it is not material that the instrument was confessedly stamped after the action was commenced. If an agreement be not under seal it may be stamped within twenty-one days after it was entered into, as a matter of course, without an affidavit negativing fraud, and without paying any penalty (u). But a deed cannot in general be stamped after its execution, without payment of a penalty, besides the duty upon affixing the stamp (v).
(n) Rer v. Long Buckby, 7 East, 45. & W. 417, and post. (0) Keable v. Payne, 3 N. & P. 531. (s) See Rer v. Episcopum Cestriens.
(p) Phillipps' Ev. 894; Roscoe, 1 Stra. 621; Rogers v. James, 7 Taunt. Ev. 4th ed. 124, 143; Chitty, Stamps, 147; Green v. Davies, 4 B. & C. 241. 50, 52, 43; per Tenterden, C. J., Jar- As to bills, notes, drafts, receipts, apdine v. Payne, 1 B. & Ad. 670; or to prentice deeds, policies, &c., Chilly, show an offence, as usury, in an action Stamps, 34, 35, 56, &c. for a debt, Nash v. Duncombe, 1 M. & (1) It seems the judge will not call Rob. 104; and in some instances to on another cause, to afford time to get refresh the witness's memory, Chitty, the instrument stamped, after the cause S. 46; Jucob v. Lindsay, 1 East, 460; has commenced, Dudley and Ward v. Mlaugham v. Hubburd, 8 B. & C. 14; Robins, 3 C. & P. 26. 2 M. & R. 5, S. C.; Call v. Howurd, (u) 23 Geo.3, c. 58, s.5; 55 Geo. 3, 3 Stark. R. 4.
c. 184 ; and see Bousfield v. Godfrey, (9) Coppock v. Bower, 4 M. & W. 5 Bing. 418. As to remitting the pe361.
nalty within a year, if no fraud, 44 (r) Cundy v. Marriott, 1 B. & Ad. Geo. 3, c. 98. 696. If the holder, without consent, (v) Chitty, Stamps, 33; and see alter a bill, whereby the stamp is 3 & 1 Will. 4, c. 97, authorising the avoided, he cannot sue for the original commissioners of stamps to alter the consideration, Alderson v. Langdule, dies of stamps, and enacting that 3 B. & Ad. 660; Chitty, jun. B. 588, deeds and agreements stamped with S. C.; nor is the bill evidence on an old die shall be invalid, and see Chit. account stated, Caleert v. Baker, 4 M. & Ilulme's Stats. tit. Stamps.
The 37 Gco. 3, c. 136, enacts that any instrument (except bills, notes, drafts, or orders), on stamps of a different denomination, but of equal or greater value than the proper stamps, may, on production to the commissioners, at their head office of stamps, be stamped on payment of the legal duty, and 51. penalty. The sum of 51. is the amount of the penalty required to be paid at the stamp office, for stamping an agreement noi before stamped.
The 55 Geo. 3, c. 184, s. 10, (which is only prospective, and not retrospective) ('), cnacts that all instruments having wrong stamps, but of sufficient value, shall be valid, and requires neither re-stamping, nor payment of further duty or penalty, except in cases where the stamp or stamps used on such instrument shall have been specially appropriated to any other instrument, by having its name on the face thereof, as in the case of receipt stamps.
Re-stamping appears to be necessary, 1st, where the stamp on the instrument has been used, and has performed its office, and is intended to be applied to a new object; and 2dly, where there has been a material alteration of the instrument after it was complete, (by consent), varying the original intention of the parties (y).
4. Of EXEMPTIONS FROM THE Stamp Duties. The statute 55 G. 3, c. 184, Schedule Part I., title Agreement, exempts from the stamp duty :
Any memorandum or agreement for granting a lease or tack at rack rent (z), of any messuage, land, or tenement under the yearly rent of 51.:
Or for the hire of any labourer, artificer, manufacturer, or menial servant (a):
(.1') Green v. Davies, 4 B. & C. 235; delivery, does not render a fresh stamp 6 D. & R. 306, S. C.
necessary, Spicer 1. Burgess, 1 C., N. (9) Chitty, Stamps, 22 to 23, and & R. 129. cases there cited; 3 Chilly, Com. L. (2) This does not apply to an agree178; Chitty on Bills, Index, tit. Alte- ment for a building demise for less ration; post, Index, lit. Alteration ; than 51. per annum rent. See Doe v. Phillipps, Ev. 8th ed. 154. Making a Boulcot, 2 Esp. R. 595. joint contract several also, is a mate- (a) Aliter as to the assignment of rial alteration, Perring v. Ilone, 2 C. an apprentice, Rex v. Dilchingham, 4 & P. 401; 12 Moore, 135, S. C. As T.R. 769; Rex v. St. Paul's, Bedford, to effect of adding the name of ano. 6 T, R. 452. And it should seem ther maker to a joint and several note, that a contract for the hire of a clerk Callon v. Simpson, 8 Ad. & E. 136; or traveller would not be within the 3 Nev. & P. 248, S. C.
exemption.- Ed. executing a release to a witness before
Or made for, or relating to the sale (6) of any goods, wares, merchandise (c) :
Or made between the master and mariners of any ship or vessel for wages, on any voyage coastwise from port to port in Great Britain (d) :
And letters containing any agreement, (not before exempted,) in respect of any merchandise, or evidence of such an agreement, which shall pass by the post between merchants or other persons, carrying on trade or commerce in Great Britain, and residing, and actually being at the time of sending such letters, at the distance of fifty miles from each other (e).
In regard to agreements for the sale of goods, it is observable that the words of the act are very comprehensive, and include not only contracts directly “ for the sale of goods,” but also such as “ relate thereto.” Therefore, a guarantee for the due payment of the price of goods to be sold to a third person (f); or an indemnity by a broker to his principal, against a loss on a re-sale (9); and an agreement to take a share of goods bought, though in themselves indivisible, and pay for them at a future time (h), or to cancel an agreement for sale, and make a new arrangement (); and a warranty of soundness contained in a receipt for the price of a horse sold (k); fall within the exception. And in these cases it is not material that the memorandum contains a detail of terms as to payment (1); or, if the chief and primary object be the sale of goods, that there are also comprised in the instrument subordinate stipulations as to other things not strictly connected with the sale (m). We have already remarked that the primary object must be the sale of goods; and therefore a contract, the main design of which was the procuring money upon a pledge of goods, must be stamped (n); and it
(6) Except by decd, ante.
(1) Venning v. Leckie, 13 East, 7; (c) Or transfer, &c. of ships, 6 G. 4, Marson v. Short, 2 Scott, 243; 2 N.C. c. 41.
118; 1 Ilodges, 260, S. C. (d) Agreements between master and (i) Whitworth v. Crockett, ? Stark. mariners for wages on any voyage,
R. 431. liable only to a duty of two shillings, (k) Skrine v. Elmore, 2 Camp. 7 & 8 G. 4, c. 56, s. 17.
407. (c) See 32 G. 3, c. 51; Mackenzie (1) Heron v. Granger, 5 Esp. R. v. Banks, 5 T. R. 176.
269; Forsyth v. Jervis, 1 Stark. R. () Warrington v. Furbor, 6 Esp. 137. 89 ; 3 East, 242; Waddington v. (m) Id. ; Tooke v. Meering, 1 DanBristow, . B. & P. 452; Walkins v. son & Lloyd, 35. See 2 M. & R. 121, l'ince, 2 Stark. R. 368.
ante, 123. (g) Curry v. Edensor, 3 T. R. 524. (n) Ante, 123.