A question sometimes arises as to what shall be deemed such a making within this country as to subject an instrument to the English Stamp Laws. On this subject also, see the Chapter on FOREIGN BILLS.

A bill not duly stamped is not available, nor evidence in law or equity, for any purpose in furtherance of its original design, not even as an admission.(z) Defendant indorsed to plaintiff a bill on an insufficient stamp, in payment of goods sold; plaintiff delayed in 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. (a) 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.(b) 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 [*89] note was put in, and had very much the appearance of having been written by a drunken man. Verdict for the defendant.(c) So, it is no defence, on a prosecution for forgery, that the instrument was not duly stamped.(d) So, it has been held, that if A. and B. enter into a written agreement, duly stamped, and afterwards enter

(2) Wilson v. Vysar, 4 Taunt. 288; Jardine v. Payne, 1 B. & Ad. 663; Cundy v. Marriott, 1 B. & Ad. 696. But an unstamped instrument is admissible to prove an agreement illegal. Coppock v. Bower, 4 M. & W. 361. And the Court of C. P., have allowed an unstamped bill to be given in evidence to negative by anticipation a plea of payment. Smart v. Nokes, 13 L. J. 79, C. P.; 6 M. & G. 911, S. C. Sed

quære.

(a) Wilson v. Vysar, 4 Taunt. 288.

(b) Cundy v. Marriott, 1 B. & Ad. 696; Wilson v. Vysar, 4 Taunt. 288; Plimley

v. Westley, 2 Bing. N. Ca. 249;

Scott, 423; 7 Hodges, 324, S. C.

(c) Gregory v. Fraser, 3 Camp. 454.

(d) 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.

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. (e) 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 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.(f)

The 3 & 4 Wm. 4, c. 97, ss. 16 and 17, empowers the commissioners of stamps from time to time to change the dies on giving proper notice. notice. A bill or note stamped with a superseded die is to be considered as unstamped. This objection need not be pleaded.(g) A bill accepted in blank on a proper die, but filled up after the die is changed, is void.(h)

Though the commissioners are in general prohibited, by the 31 Geo. 3, c. 25, s. 19, from stamping any bill or note after it has been made, yet, if so stamped, it may nevertheless be valid in the hands of an indorsee.(i) 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 [*90] 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.”

(e) Reed v. Deere, 7 B. & C. 261; see Swears v. Wells, 1 Esp. 317.

(f) 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. (9) Dawson v. McDonald, 2 M. & W. 26.

(h) Abrahams v. Skinner, 12 Ad. & E. 763.

(i) Wright v. Riley, Peake, 173; Roderick v. Hovill, 3 Camp. 103; Rapp v. Allnutt, ibid. 106.

The authority of the preceeding case has been recognised in a late case;(k) 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 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.(1) Although interest be reserved from a day prior to the date of the instrument.(m)

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,(n) for the word date in the Stamp Act means the date expressed on the face of the bill.

An instrument, which in point of law is but an agreement, requires where the matter thereof is of the value of 207. a stamp of 28. 6d. only.(0)

An agreement requiring, when made, a stamp of 17., is now on payment of the penalty well stamped with a 2s. 6d. stamp.(p)

A note reciting that deeds had been deposited as a security, does not require a mortgage stamp.(q)

*After payment of money into Court on the whole declaration, the defendant cannot object to the insufficiency of the

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(k) Green v. Davies, 4 B. & C. 235; 6 D. & R. 306, S. C. As to post stamping

a cognovit, see Rose v. Tomblinson, 3 Dowl. 49.

(1) Pruessing v. Ing, 4 B. & Ald. 204.

(m) Wills v. Noot, 4 Tyrw. 726.

(n) Upstone v. Marchant, 2 B. & C. 10; 3 D. & R. 198,

rell, 2 Stark. 558; Williams v. Jarrett, 5 B. & Ad. 32; 2 N. & M. 49, S. C.; Duck v. Braddyll, M'Clel. 235.

(0) 55 Geo. 3, c. 184; 7 Vict. c. 21.

(p) 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.

(q) Fancourt v. Thorne, 9 Q. B. Rep. 312.

stamp.(r) 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 requires extrinsic evidence to show it, as where a check has been post dated, the instrument is to be read, and the ground of objection afterwards proved as part of the defendant's case.(s)

The absence of a stamp on a bill or note cannot be pleaded, unless the plea show that the instrument cannot be made good by being stamped before the trial.(t)

(s) Field v. Woods, 7 Ad. & Ell. 114; 2 Nev. & P. 117, S. C.

(t) 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. Rep. 465.

If a man seek to inforce a simple contract, he must, in pleading, aver that it was made on good consideration, and must substantiate that allegation by proof. But to this rule bills and notes are an exception. It is never necessary to aver consideration for any engagement on a bill or note, or to prove the existence of such consideration, unless a presumption against it be raised by the evidence of the adverse party, or unless it appear that injustice will be done to the defendant if the plaintiff recover. In the case of simple contracts, the law presumes there was no consideration till a consideration appear; in the case of contracts on bills or notes, a consideration *is presumed till the contrary appear, or at least appear probable.(a)(1)

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(a) To obtain the usual decree in a creditor's suit, it is not sufficient for the plaintiff to put in an acceptance of the testator proved as an exhibit. Quære, whether any evidence should be given of the consideration. Keaton v. Linch, 1 Y. & Col., N. S. 437. And where an account is directed by a Court of Equity to be taken of dealings between an attorney and his client, it is not sufficient that the attorney produced bills and notes given by the client to him, he must prove the consideration. Jones v. Thomas, 2 Y. & Col. 498.

(1) A promissory note imports a consideration, and none need be proved unless it be impeached. Middlebury v. Case, 6 Verm. 165. Schoonmaker v. Roosa, 17 Johns. 301. Jerome v. Whitney, 7 Ibid. 321. Mims v. Whiddon, 2 Bailey, 451. Horn v. Fuller, 6 N. Hamp. 511. Goshen Turnpike v. Hurtin, 9 Johns. 217. Camp v. Tompkins, 9 Conn. 545. McMahon v. Crochett, Minor, 362. Mandeville v. Welch, 5 Wheat. 277. Hunley v. Lang, 5 Porter, 154. Thompson v. Armstrong, 5 Alabama, 383.

The consideration of a promissory note is inquirable into between the original parties. Slade v. Halsted, 7 Cowen, 322. Pearson v. Pearson, 7 Johns. 26, Parish v. Stone, 14 Pick. 198. Barnet v. Offerman, 7 Watts, 130. Geiger v. Cook, 3 Watts & Serg. 266.

A promissory note, given for a void patent right is without consideration, notwithstanding the vendor believed, at the time of the sale that the patent was valid. Dickinson v. Hall, 14 Pick. 217. Higgins v. Strong, 4 Blackf. 182.

The maker of a note is not precluded from showing want of consideration by the fact that the note was made to defraud creditors, the payee being conusant of that intent. Weaver v. Pierce, 24 Pick. 141.

This last case it will be difficult to reconcile with the dictates of sound policy, if it accords with the principles settled by the cases. That principle is that in pari delicto potior est conditio defendentis. If a party can make out his case or his defence without showing the fraud, it cannot be objected to him by the other party who is also a particeps. Here the case of the plaintiff is made out by the production of the note. It is prima facie evidence of consideration. The defendant shows want of consideration, and in so doing, certainly the actual reason why the note was given must appear. Suppose he succeeds im making out that there was no consideration without disclosing the fraud, the plaintiff may contradict that evidence by showing that there was a consideration, to wit,