The subject of evidence is one of the most important that we have to deal with, in reference to the stamp law; and though the term evidence is only used incidentally in the statute, in connection with the validity of instruments stamped free of duty by the Commissioner, (g) and of instruments issued prior to June 1, 1863; (h) yet there can be no question that the statute operates to prevent all instruments that are not sufficiently stamped from being used in evidence for any purpose n furtherance of the object which they purport to serve.

An instrument must be stamped according to the manner in which it operates at the time of execution; (i) and if not duly stamped, it cannot, in general, be received in evidence for any purpose for which, if stamped, it would operate. If a document, which is unstamped, but requires a stamp, is offered in evidence, and if stamped would be evidence to establish any point litigated between the parties, it cannot be received. If it would be of no benefit stamped, it may, though unstamped, be received in evidence. (j) But, for collateral purposes, which do not assume the instrument to be valid or operative in favor of the party producing it, an unstamped instrument may be received in evidence. (k) Thus, an unstamped bill of exchange is admitted in evidence upon an indictment for forgery; (1) an unstamped policy, in an action for penalties for insuring tickets in an illegal lottery; (m) an unstamped promissory note, in an action of debt for bribery at an election; (n) an unstamped agreement, to prove usury; (o) an unstamped agreement, in an action to recover back a wager, on the ground of fraud; (p) an unstamped note, to prove fraud in the holder of it; (g) an unstamped bill of exchange, to rebut evidence of payment by bill; (r) an unstamped receipt, for the purpose of showing an agreed statement of accounts set forth therein; (s) an un

stamped check, to prove the receipt of money by means of it; (t) an unstamped agreement to dissolve a partnership, as evidence of the admission of the partnership; (u) and an unstamped receipted bill of parcels, to show to whom the goods were sold. (v)

Where, however, the validity of the instrument is of the essence of the offence for which an indictment is found, it is held, that the want of a stamp will prevent its use as evidence. Thus, upon the trial of an indictment against the accused for feloniously burning a house, with intent to defraud the insurers, an unstamped memorandum, indorsed upon the policy of insurance, was refused as evidence. (w) And it was held not to be a felony for a person employed in the post office, to purloin an unstamped check from a letter, the check being of no value without a stamp. But the same check was admitted in evidence upon a subsequent indictment for stealing the letter in which it was contained. (x) Upon an indictment against a clerk, for embezzling his employer's money, a receipt given by the prisoner to the debtor of the master who paid him the money, was rejected for want of a stamp. Here the instrument was offered for the very purpose for which the stamp law makes it unavailable; namely, to prove the receipt and payment of the money. (y)

The stamp laws do not affect the rules of evidence, and therefore, if an instrument be not essential to the plaintiff's case, although it may be the foundation of his claim, or of the proceedings to establish it, the court will not compel its production, to ascertain whether it be stamped or not. (2) Nor will the

containing a statement of accounts, which declared a balance of £68 9s. 4d., and at the end was an acknowledgment of the payment of that sum. This paper was offered in evidence by the defendant, not for the purpose of proving that the sum above mentioned had been paid, for that was not in contest between the parties, but in order to show what, at a particular time, the state of the accounts had been admitted to be. Although the document was inadmissible as a receipt, for want of stamp, it was held admissible as evidence of the state of the accounts. In this case the subject of admission of unstamped documents for collateral purposes, was very fully and ably examined.

(t) Blair v. Bromley, 11 Jur. 617, 5 Hare, 542, 2 Philips, 354.

(u) Wheldon v. Matthews, 2 Chit. 399. (v) Millen v. Dent, 10 Q. B. 846. Here an unstamped bill of parcels was admitted in evidence to prove that the goods were sold to a third person, and not to the defendant. Hawkins v. Warre, 3 B. & C. 690.

(w) Rex v. Gilson, 1 Taunt. 95.

(x) Rex v. Pooley, 3 B. & P. 311, Russ. & R. 31; Rex v. Tooley, 1 East, P. C. addenda, 17.

(y) Rex v. Hall, 3 Stark. 67.

(2) Per Livingston, J. in Lullow v. Van Rensselaer, 1 Johns. 94.

court compel a party to exhibit evidence to which the opposite party might otherwise be entitled, if by so doing the party so exhibiting will be obliged to lay himself open to prosecution for penalties under the stamp act. (a)

An instrument capable of two distinct operations, or which may be used for two distinct purposes, one of which does, and the other does not require a stamp, may be read for the latter purpose alone, without a stamp. (b) If, however, the document bears a stamp which would be sufficient for either purpose standing alone, and each requires a separate stamp, the instrument cannot be read as to either; for there is no means of appropriating the stamp to either. (c) And where the purposes for which an instrument may be used, are not distinct, but one is subordinate to the other, though but one of the purposes requires a stamp, yet the unstamped instrument can be read for neither. (d) Where an instrument, originally valid and duly stamped, is subsequently rendered void or inadmissible as a continuing obligation, by reason of alterations made after the stamping, it is held, that it may be read in evidence for any purpose consistent with the conclusion that it is no longer binding by way of covenant or obligation; for the purpose, for instance, of proving that an estate passed, (e) or to prove any collateral circumstances. (ƒ)

If a contract be in writing and does not bear a proper agreement stamp, neither the contract nor any of its terms can be

(a) Whittaker v. Izod, 2 Taunt. 115; U. S. v. Saline Bank of Virginia, 1 Pct.

104.

In giving the opinion of the court, Marshall, C. J. says: "This is a bill in equity, for discovery and relief. The defendants set up a plea in bar, alleging that the discovery would subject them to penalties under the statutes of Virginia. The court below decided in favor of the validity of the plea, and dismissed the bill. It is apparent, that in every step of the suit, the facts required to be discovered in support of the suit would expose the parties to danger. The rule clearly is, that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it.

(b) Wheldon v. Matthews, 2 Chit. 399; Heron v. Granger, 5 Esp. 269.

(c) Lovelock v. Franklyn, 8 Q. B. 371; Wharton v. Wharton, 7 Q. B. 474.

(d) Doe v. Stagg, 5 Bing. N. c. 564; 7 Scott, 690. In this case, the unstamped instrument signed by executors, purported to be both a surrender, for which purpose a stamp was necessary, and a disclaimer for which none was required. It was offered in evidence as a disclaimer, but as it was a deed of executors relating to property of their testator, it could not operate as a disclaimer, and the court refused to receive it in evidence.

(e) Doe v. Hirst, 3 Stark. 60. In this case the distinction is recognized, that where the thing lies in livery, a void deed may be read to show that an estate passed, but not where it lies in grant.

(f) Sutton v. Toomer, 7 B. & C. 416; Hutchins v. Scott, 2 M. & W. 809.

admitted in evidence; and even if shown to be lost, (g) on wrongfully destroyed by the opposite party, before it was stamped, no parol evidence of its contents can be given. (h) Nor can an unstamped instrument be read, though the party calling for its production is no party to the instrument, and could not be aware of the objection beforehand. (i) The production of the instrument upon notice, gives neither party a right to insist upon its being read in evidence, if found to be unstamped. (j)

An unstamped contract which is referred to in a stamped contract, for fixing the terms of the latter, will not be received in evidence. (k) Nor in such case will general evidence as to the terms be received in lieu of the unstamped contract; for the written evidence is of a higher nature. (1) And though the unstamped agreement is functus officio at the time it is offered in evidence, it cannot be received. (m) As a general proposition, an unstamped instrument is inadmissible when tendered to give legal effect to a document. (n)

Where several parts of an instrument are executed, each part is not only an original, operative instrument, but also a copy of the other. If one of the parts is offered in evidence as an original instrument, it must be properly stamped; but if it is offered merely as a copy of another part which was duly stamped, and as secondary evidence, the foundation for admitting secondary evidence having been laid, by proof that the stamped part has been lost, or by refusal of the opposite party to produce it upon notice, it may be read without a stamp. (o) The English

(g) Rex v. Castle Morton, 3 B. & Ald.

588.

(h) Rippiner v. Wright, 2 B. & Ald.

478.

(i) Doe v. Hore, 2 Esp. 724. (j) Doe v. Hore, 2 Esp. 724.

(k) Alcock v. Delay, 4 Ellis & B. 660. (1) Brewer v. Palmer, 3 Esp. 213; Ramsbottom v. Mortley, 2 M. & S. 445. (m) Rex v. St. Paul's Bedford, 6 T. R.

452.

(n) Williams v. Gerry, 10 M. & W.

296.

(0) Garnons v. Swift, 1 Taunt. 507; Munn v. Godbold, 3 Bing. 292. At the trial in this case, after notice to the defend

ant to produce the counterpart of the deed declared on, the plaintiff proved the loss of his part, which had been executed by the defendant only, and offered the draft in evidence. The defendant's counsel at the same time produced the counterpart, which was executed by the plaintiff only, and unstamped, and insisted that the draft could not be received, because the coun terpart was in court, and that the lat ter was inadmissible because unstamped. The objection was overruled so far as to admit the unstamped counterpart as evidence of the lost deed, and a verdict was found for the plaintiff. The case was car ried up on the above objection, and the

statute provides, that a copy of any contract or deed, attested to be a true copy, for the purpose of being given in evidence as a true copy, and made for the security or use of any party to, or beneficially interested in, the original instrument, must be stamped like the original. (p) But it is held, that this relates only to such copies as are evidence per se, and does not apply where a copy of a document is produced as secondary evidence by a party who has compared it. (q)

When a document is held to be inadmissible for want of a stamp, a party cannot be cross-examined as to the contents of it. (r) And an attorney cannot be called to testify as to his knowledge whether an instrument was or was not stamped, when exhibited to him by his client in the course of professional business. (s) An instrument that is not properly stamped for what it purports to be, may be used on the examination of a witness, as a memorandum to refresh his memory. (t) It may also be admitted in evidence to show its own worthlessness; as, for example, a void security, in an action for money lent; (u) and if a person were to be sued for the penalty for negotiating a bill without a stamp, the document would of course be evidence. (v)

SECTION XIII.

OF RELIEF IN EQUITY.

The terms of disqualification of unstamped instruments, used in the United States statute, are sufficiently comprehensive to exclude them from equitable, as well as legal recognition; they being declared "invalid and of no effect." The intention of the legislature, to deny all efficacy to such instruments, in courts of

court held, that the unstamped counterpart was rightly received as a copy of the deed signed by the defendant, which was proved to be lost.

(p) 55 Geo. 3, ch. 184.

(q) Braythwayth v. Hitchcock, 10 M. & W. 494.

(r) Baker v. Dale, 1 Fos. & Fin. 271.

(s) Wheatley v. Williams, 1 M. & W. 533.

(t) Rambert v. Cohen, 4 Esp. 213; Ja cob v. Lindsey, 1 East, 460; Catt v. How ard, 3 Stark. 3.

(u) Enthoven v. Hoyle, 13 C. B. 373. (v) See Recuist's Case, 2 Leach. C. Cl. 703