shall bear a Stamp of a value not less than that indicated to be proper for it by the Schedule A annexed to this Act. Provided that every Deed, Instrument, or Writing liable to Stamp Duty, shall be admitted as evidence in any Criminal proceeding, although it may not have the Stamp required by this Act impressed thereon or affixed thereto." Here it is to be observed that the law applies only to civil cases. An unstamped or insufficiently stamped document is evidence in criminal cases. § 359c. Sec. XV provides for certain cases in which the Collector may supply the want of a Stamp, where the want has arisen from inadvertence. Clause 1 applies to cases where the defect is brought to notice within six weeks. Clause 2, first where within four months; and secondly, where after four months. Clauses 3 and 4 show the power of the Collector. Clauses 5 and 6 the power of the Revenue Board. The Sections must be looked for in books of Procedure, or in the Act. § 359d. Section XVI provides as follows: "The Stamp which shall be impressed under the last preceding Section shall be taken in any Court of Justice to be the proper Stamp required by this Act for the Deed, Instrument, or Writing on which the same is impressed." § 359e. Sec. XVII gives Courts power to receive unstamped documents on payment of a penalty. It is as follows: "Clause 1.—In any case in which a Stamp might be impressed under Section XV of this Act, a Civil Court may receive in evidence any Deed, Instrument, or Writing not bearing the Stamp prescribed by Schedule A annexed to this Act on payment into Court of the proper amount of Stamp Duty to be determined by the Court, whose decision on the point shall be final, together with the penalty required by the said Section. "Clause 2.-An entry of such payment setting forth the amount thereof shall be made in a book to be kept by the Court, and shall also be endorsed on the back of the Deed, Instrument, or Writing, and shall be signed by the Court. The Court shall, at the end of every month, make a return to the Collector of the Stamp Revenue of the District, of the money (if any) which it has so received, distinguishing between the sums received by way of penalty and the sums received by way of Duty, stating the number and title of the suit, and the name of the party from whom such money was received, and the date, if any, and description of the document, for the purpose of identifying the same; and the Court shall pay over the money so received to such Collector, or to such person as he may appoint to receive the same. Such Collector or other proper authority shall, upon the production of the Deed, Instrument, or Writing, with the endorsement hereinafter mentioned, cause to be stamped thereon with a stamp of the amount paid into Court on account of such Duty. The provisions contained in Clause , Section XV of this Act as to the mitigation or payment of penalties paid to the said Collector, shall be applicable to penalties paid into Court under this Section." § 359f. Section XVIII provides as follows: "No Deed, Instrument, or Writing executed on unstamped or insufficiently stamped paper, shall be stamped at any time after the execution thereof, except as herein before provided." § 359g. The amount of Stamp duty payable upon particular descriptions of instruments must be looked for in Schedules A and B to the Act itself. They are too lengthy for insertion here. § 359h. Sec. XXX provides for such Stamps as are specified in Schedule B, that is to say, documents connected with Suits at Law or applications to the Revenue authorities. It provides as follows: "Except in any Court of Justice established by Royal Charter, or in any Court of Small Causes established within the local limits of the jurisdiction of any such Court, no Instrument, or Writing of any of the kinds specified or requiring Stamps in the Schedule B annexed to this Act, shall be filed, exhibited, or recorded in any Court of Justice or Government Office, or shall be received or furnished by any public Officer, unles such Instrument or Writing be upon a Stamp of a value not less than that indicated to be proper for it by the said Schedule B. Provided that nothing in this Act shall be held to repeal any special provisions in the Code of Civil Procedure or in any other Act or Regulation for the use of plain or unstamped paper in any judicial proceeding, unless such provision shall be expressly repealed by this Act." § 3591. This Act has no retrospective effect. Documents executed before the Act came into operation must be judged of (in the Madras Presidency) under Regulation XIII of 1861. See Proc. of Sr. Ct. 26th November 1860; Rules of Practice, p. 51. § 359j. It may be useful to state some of the most ordinary points decided with reference to the English Stamp Acts. § 359%. A witness may refresh his memory from an unstamped paper, though the paper could not itself be given in evidence for want of a Stamp. () (b) Manyham v. Hubbard, 8 B & C. 11. SEC. 360f-360.] PROTECTION OF WITNESSES. §3591. Where an instrument is lost, which cannot be proved to have been properly stamped, the fact of its having been sufficiently stamped may be presumed from circumstances which fairly warrant such presumption. It lies on the party objecting to the reception of secondary evidence of a lost instrument, to show that it was not properly stamped. But if it be shown to have been originally unstamped, no presumption will arise of its having been subsequently stamped, previous to loss. Arbon v. Fussel. 9 Jur. N. S., p. 753. § 359m. Where the transaction is capable of being legally proved aliunde, such evidence may be resorted to. A verbal admission of a debt is evidence though at the same time a written unstamped acknowledgment was given. §359n. An unstamped instrument may be often used for a collateral purpose: as to prove fraud. In Gregory v. Fraser(c) an unstamped promissory note was given in evidence to establish fraud, by showing it was written in a state of intoxication. § 3590. Several contracts may be made under one stamp: as subscriptions to a common fund; the subscriptions of several underwriters to the same policy: a bond signed by several obligees; a release by several parties of their rights and the like. 359p. Where an agreement refers to another document, and the two form but one contract, one only need bear a stamp.(d) CHAPTER XXII. IIL PROTECTION OF WITNESSES, &c. § 360. It may be shortly stated that witnesses are protected from arrest "eundo, morando, et redeundo," i. e., on their way to the Court, at Court, and on their way back.(k) Taylor, § 936, may be usefully consulted here. "In order to encourage witnesses to come forward voluntarily, they, as well as parties, barristers, attorneys, and, in short, all persons who have that relation to a suit which calls for their attendance, are protected from arrest, while going to the place of trial, while attending there for the purpose of the cause, and while returning home; eundo, morando, et redeundo. The service of a subpoena or other process is not necessary in order to afford the witness this protection, provided he has consented to come (d.) Peat v. Dicken, 1. C. M. and R. 422. (c.) 3 Camp, 454. (k) See the case of in R. v. Douglas, 3 Q. B. R. 837, where the arguments are worth perusal. That was a case of arrest after leaving Court. without such service and actually does attend in good faith; and, therefore, the privilege extends to a witness coming from abroad without a subpoena. In determining what constitutes a reasonable time for going, staying, and returning, the Courts are disposed to be liberal; and provided it substantially appears that there has been no improper loitering or deviation from the way, they will not strictly enquire whether the witness or other privileged party, went as quickly as possible and by the nearest route. Thus the rule of protection has been held to apply, where a witness, two hours after he had left the Court, was arrested about a mile off in the direct road to his house; where a defendant, who had attended his cause in the morning, went to a tavern near the Court in the afternoon, to dine with his attorney and witnesses; where a party had been staying for some days at a coffee-house near the Court waiting for the trial of his cause, which was a remnant, but was not in the list of causes for the day on which the arrest happened; where a party attending an arbitration was arrested during an adjournment of the reference from one period to another of the same day; where a witness, in a cause tried on Friday afternoon, was arrested in the assize town on Saturday evening, as she was entering a stage coach which was to convey her home; where a plaintiff, on leaving Court, called at his office for refreshment, and then on his way home went to his tailor's, in whose shop he was arrested; and even where a witness from abroad, on finding that the trial was postponed till the next sittings, determined to wait till it came on, and was arrested on the eighth day after his arrival." § 361. An amusing instance occurred in the Supreme Court during the first Sessions of the year 1852. Gholam Moortooza Khan had been indicted and found guilty of concealing a watch at the time of his passing through the Insolvent Court. He was brought up to receive sentence. He had at that moment many writs out against him; now the law gives protection to a witness compelled to give evidence, not to a prisoner called up to receive sentence. When Gholam Moortooza Khan had paid the fine to which he was sentenced, and had left the Court, he was arrested at the suit of one of his creditors, but he seems to have been well advised; for he instantly produced a Summons from the Small Cause Court to attend there as a witness and as he was then on his way there, he was protected, eundo-and also while there, morando-and on his return home, redeundo-although I saw two bailiffs up behind his carriage to take the chance of his making any detour. § 362. This protection extends only to civil suits. A witness may be arrested at any time on a charge of crime. Home itself affords no protection in such a case. 362a. The privilege extends, I think, to witnesses going before inferior judicial tribunals. It has been expressly so held in America as noticed by Earle, J., in the case of ex parte Cobbett, 5 W., Rep., p. 708. § 363. Bail may arrest the party for whom he is security at any time for this is said not to be a taking, but a re-taking. CHAPTER XXIII. IV. PRELIMINARY OBJECTIONS TO THE EXAMINATION OF A WITNESS. § 364. Objections on the score of want of understanding, or want of belief, have already been considered. See ante (§ 28-30). Since the alteration of the law as to objection on the score of interest, the only grounds of exclusion left are infancy, &c. In addition to what was before said on the subject of disqualification from insanity, we may here add the following remarks. In the case of Reg. v. Hill) the evidence of a witness, who believed he was possessed by 20,000 spirits was received, on his appearing to understand the nature of an oath, and on the belief of the medical witness that he was capable of giving an account of the transactions that happened before his eyes. This decision, which seems sound in principle, has modified the old law, if indeed the case itself should be upheld. There is a case, however, Waring v. Waring,(m) not mentioned in the argument of Reg. v. Hill, which seems directly opposed to it. There Lord Brougham in delivering the judgment of the Court said: "The disease affecting them (the mental faculties) may have been more or less general; it may have extended over a greater or a less portion of the understanding; or rather, we ought to say, that it may have affected more, or it may have affected fewer, of the mental faculties: for we must always keep in view that which the inaccuracy of ordinary language inclines us to forget, that the mind is one and indivisible; that when we speak of its different powers or faculties, as memory, imagination, consciousness, we speak metaphorically, likening the mind to the body, as if (1) 15 Jur. p. 470. (m) 6 Moore's P. C. C., p. 341. |