CHAPTER to plaintiff a bill on an insufficient stamp, in payment of goods sold: plaintiff delayed presenting it for payment, and the acceptor became unable to pay. Defendant proved that the bill would have been paid if presented at maturity. Held, that the bill never operated as a suspension of the debt, and that the plaintiff's laches did not discharge the defendant (i). So, the indorser of a bill drawn on an insufficient stamp, is not discharged from his debt by neglect of the indorsee to present or give him notice of dishonour (k). But an instrument not duly stamped may be looked at for a collateral purpose. Action for money lent; the plaintiff's witnesses proved that plaintiff had lent defendant 407., and that defendant had given him a promissory note on unstamped paper. The defendant's case was, that plaintiff had inveigled him to drink, and that the transaction was fraudulent. The note was produced. Lord Ellenborough: "The note certainly cannot be received in evidence as a security, or to prove the loan of the money; but I think it may be looked at by the jury as a contemporary writing to prove or disprove the fraud imputed to the plaintiff." The note was put in, and had very much the appearance of having been written by a drunken man. Verdict for the defendant (1). The statute 17 & 18 Vict. c. 83, s. 27, contains an express provision that an unstamped instrument may be admitted in any criminal proceeding. But long before that statute it had been held that it is no defence, on a prosecution for forgery, that the instrument was not duly stamped (m). So, it has been held, that if A. and B. enter into a written agreement, duly stamped, and afterwards enter into another written agreement on the same subject-matter, but inconsistent with the first, and not stamped, though the plaintiff cannot give the second agreement in evidence, it may be looked at by the Court to prove that the first agreement was rescinded (n). But where the acceptor of the bill required the drawer, who was an illiterate person, to take his second acceptance at six months, in lieu of payment, and the drawer having assented, the acceptor's son wrote the second bill on the back of the (i) Wilson v. Vysar, 4 Taunt. 288. (k) Cundy v. Marriott, 1 B. & Ad.696; Wilson v. Vysar, 4 Taunt. 288; Plimley v. Westley, 2 Bing. N. C. 249; 2 Scott, 423; 1 Hodges, 324, S. C. (1) Gregory v. Fraser, 3 Camp. 454. And see Holmes v. Sixsmith, 7 Exch. 802; Watson v. Poulson, 15 Jur. 1111; Keable v. Payne, 8 A. & E. 555; Reg. v. Gompertz, 9 Q. B. 824. (m) Rex v. Hawkswood, Bayley, 91, 6th ed.; 3 East, P. C. 955; Rex v. Teague, Bayl. 574, 6th ed.; 2 East, P. C. 79, S. C. (n) Reed v. Deere, 7 B. & C. 261; see Swears v. Wells, 1 Esp. 317. first, and the drawer and acceptor signed the second bill, and then the acceptor's son drew a line through the acceptance on the first bill: it was held, in an action on the first bill by the drawer against the acceptor, that the second bill could not be submitted to the jury for the purpose of enabling them to judge whether the cancelling of the original acceptance were with the assent of the plaintiff (o). CHAPTER IX. The 3 & 4 Will. 4, c. 97, ss. 16 and 17, empowers the Fresh dies. commissioners of stamps from time to time to change the dies on giving proper notice. A bill or note stamped with a superseded die is to be considered as unstamped. This objection need not be pleaded (p). A bill accepted in blank on a proper die, but filled up after the die is changed, is void (9). law. Though the commissioners are in general prohibited, by Effect of post the 31 Geo. 3, c. 25, s. 19, from stamping any bill or note stamping against after it has been made, yet, if so stamped, it may nevertheless be valid in the hands of an indorsee (r). Lord Kenyon observed "that though the commissioners might have exceeded their duty in stamping a bill against the positive directions of the act of parliament, still, that being stamped, he thought it was become a valid instrument, and a Judge at Nisi Prius could not inquire how and at what time it was stamped. Much inconvenience might arise, and a great check be put upon paper credit, if the objection was to be allowed; for how was it possible for a man, taking a bill in the ordinary course of business, to know whether it had been stamped previous to the making of it or not." The authority of the preceding case has been recognized in a later case(s); but it is there intimated that the decision would have been different, had the plaintiff been the original party to the instrument, or had it carried on the face of it evidence that it was stamped after it came into the plaintiff's hands, or after it was issued. And it is conceived that if it can be distinctly shown, that the plaintiff, who sues on a (0) Sweeting v. Halse, 9 B. & C. 365; 4 M. & Ry. 287, S. C. It was held in Jones v. Ryder, 4 M. & W. 32, that a promissory note improperly stamped could not be received in evidence to take a case out of the Statute of Limitations; and see Holmes v. Mackrell, 3 C. B., N. S. 789. (p) Dawson v. McDonald, 2 M. & W. 26. (g) Abrahams v. Skinner, 12 A. & E. 763. (r) Wrightv. Riley, Peake, 173; Rodrick v. Hovill, 3 Camp. 103; Rapp v. Allnutt, ibid. 106. (8) Green v. Davies, 4 B. & C. 235; 6 D. & R. 306, S. C. As to post stamping a cognovit, see Rose v. Tomlinson, 3 Dowl. 49. CHAPTER Reservation of interest does not make a larger stamp necessary. Nor post dating. On instruments which are in law agreements. Sufficiency of stamp admitted by paying money into court. When the objection to the stamp should be taken. bill, became the holder while it was unstamped, he cannot recover on it. The reservation of interest on a bill or note does not, in any case, make a larger stamp necessary; for the object of the Legislature was to impose a pro rata stamp duty on the sum actually due at the time of taking the security, and not upon what might become due in future for the use of the money (t). Although interest be reserved from a day prior to the date of the instrument (u). Though post dating a bill, so as to evade the proper duty, subjects, as we have seen, to a heavy penalty, yet, if it be thus post dated, it will not require the higher stamp (x), for the word "date" in the Stamp Act (55 Geo. 3, c. 184, sched.) means the date expressed on the face of the bill. An instrument, which in point of law is but an agreement, and not one of that class of agreements, which, as irregular instruments approaching the form of bills and notes, are chargeable with a different duty, requires, where the matter thereof is of the value of 57., a stamp of 6d. only (y). An agreement requiring, when made, a stamp of 11. or 2s. 6d. (z), may afterwards, on payment of the penalty, be well stamped with the stamp now in force (a). A note, reciting that deeds had been deposited as a security, does not, as a note, require a mortgage stamp (b). After payment of money into Court on the whole declaration, it was formerly held that the defendant could not object to the insufficiency of the stamp (c). This point can scarcely arise in the superior Courts since the New Rules of Pleading. The objection to the want of a stamp should in general be taken before the instrument is read. But where the defect (t) Pruessing v. Ing, 4 B. & Ald. 204. (u) Wills v. Noot, 4 Tyrw. 726. (a) Upstone v. Marchant, 2 B. & C. 10; 3 D. & R. 198, S. C.; Peacock v. Murrell, 2 Stark. 558; Williams v. Jarrett, 5 B. & Ad. 32; 2 N. & M. 49, S. C.; Duck v. Braddyll, M'Clel. 235; Whistler v. Foster, 14 C. B., N. S. 248; Austin v. Bunyard, 34 L. J. 217, Q. B. (y) 55 Geo. 3, c. 184; 7 Vict. c. 21; 13 & 14 Vict. c. 97; 23 Vict. c. 15. (z) 13 & 14 Vict. c. 97, sched. (a) Buckworth v. Simpson, 1 C., M. & R. 834; Doe v. Whittingham, 4 Taunt. 20; Deakin v. Pennial, 17 L. J., C. P. 217; 2 Exch. 320, S. C. (b) Fancourt v. Thorne, 9 Q. B. 312. requires extrinsic evidence to show it, as where a check has been post dated, the instrument is to be shown to the judge, and the ground of objection afterwards proved (d). If a CHAPTER judge at Nisi Prius rule against a stamp objection, his deci- marine cestaring iR5 Hal sion cannot be reviewed (e), and he ought not to reserve the point (f). > The absence of a stamp on a bill or note cannot be pleaded, Pleading. unless the plea show that the instrument cannot be made good by being stamped before the trial (g). (d) Field v. Woods, 7 Ad. & El. 114; 2 Nev. & P. 117, S. C. (e) 17 & 18 Vict. c. 125, s. 31. (f) Siordet v. Kuczinski, 17 C. B. 251. But see Eames v. Smith, 1 Jur., N. S. 1025. (g) Bradley v. Bardsley, 15 L. J., Exch. 115; 3 D. & L. 476; 14 M. & W. 873, S. C.; see, however, Lazarus v. Cowie, 3 Q. B. 465; Tattersall v. Fearnley, 17 C. C. 368. CHAPTER X. Ir a man seek to enforce a simple contract, he must, in pleading, aver that it was made on good consideration, and Presumption as to must substantiate that allegation by proof. But to this rule bills and notes are an exception. It is never necessary to consideration on bills and notes. 124 124 124 Ambiguity of the Expression Distinction between Holder Burthen of Proof in the Case In case of alleged Holder with Notice Proof of Notice. Plaintiff standing on prior Title What amounts to Notice Explicit Notice. Implicit Notice. Abstinence from Inquiry Gross Negligence not equi valent to Notice Notice to an Agent Gift of a Bill or Note Cases where more than one Question Failure of Consideration sideration Accommodation Bill. 129 Partial Absence, or Failure of Consideration FRAUD Bills and Notes in Fraud In Contravention of Public 134 135 135 136 |