1804. May 11th. If to a rejoinder concluding with a verification, the Plaintiff add the similiter and take the record down to trial and the Defendant obtain a verdict, the Court will not grant a GRUNDY . Mell. HIS was an action for goods sold and delivered. Plea non assumpsit, as to all but 157. and as to the 15%. a tender before the commencement of the suit. The replication joined issue on the non assumpsit, and as to the plea of tender set forth a writ sued out before the tender, concluding with the usual verification. The Defendant iu his rejoiner alleged, that he did before the suing out of any writ at the suit of the Plaintiff tender the said 157. amend the record. and concluded, "And this he is ready to verify, wherefore he prays judgment if the said Plaintiff ought to have or maintain his aforesaid action to recover any damages by reason of the non-payment of the said 157. parcel as aforesaid, against him, &c." To this was added a similiter, "And the said Plaintiff doth the like." The record then went on: "Therefore as well to try this issue as the said other issue above joined between the parties aforesaid, the sheriff is commanded," &c. This cause was tried at the last Nottinghamshire Lent assizes, when a verdict was found for the Defendant, both on the non assumpsit and the plea of tender. A rule nisi was obtained by the Plaintiff early in this term, for setting aside this verdict, and granting a new trial, on the ground that there was no issue joined as to the tender, the rejoinder having concluded to the court instead of the country; and at the same time another rule nisi for amending was obtained by the Defendant. Vaughan Serjt. now shewed cause against the first rule and supported the last, contending that the mistake was a mere informality, and cured by the statute of jeofails, the distinction being that where an immaterial issue is joined the Court must award a 1epleader, but where the issue is only informally joined it is cured by the statute. He re ferred ferred to the case of Bennet v. Holbeck, 2 Saund. 317. and the notes thereon in the edition by Mr. Serjt. Williams, where all the cases on the subject are collected; and observed that in Sayer v. Pocock, Cowp. 407. where a similiter was allowed to be added after verdict, one of the reasons given was, that the Court only made that right which the Defendant understood to be so, by going down to trial. Bayley, Serjt. contrà, insisted that neither party in this case had put himself upon the country as to the plea of tender, and that it would be impossible to indict for perjury any of the witnesses who gave evidence on this trial. He observed, that the Court by amending might enable the party to try the question again, but that they could not by the amendment remove the objection that none of the witnesses could be indicted for perjury. He added that in Sayer v. Pocock, one of the parties had put himself upon the country, which neither of them had here done. But The Court were of opinion that they were warranted by the case of Sayer v. Pocock in amending this informality after verdict, for that the same difficulty respecting the indictment of the witnesses for perjury existed in that case as in this, since one of the parties there had not put himself upon the country. Per curiam, Rule for a new trial discharged. 1804. GRUNDY V. MELL. TH CHAMBERLAIN . PORTER. HIS was an action on a promissory note for 201. drawn in the year 1794. The cause was tried before Grose J. at the last assizes for Cambridge, when a verdict was found for the Plaintiff notwithstanding an objection taken to the note on account of the stamp, which was a sixpenny receipt stamp, instead of a note stamp of the same value. On a former day a rule nisi was obtained for setting aside the verdict, and having a new trial. Sellon Serjt. now shewed cause. The objection in this case is not that the note had not a stamp of a proper value, but that it has not the peculiar stamp appropriated to promissory notes. At the time this note was given the 31 Geo. 3. c. 25. was the only statute regulating the stamp duty on promissory notes. From that act it clearly appears that the Legislature did not intend to make any particular stamp necessary to a promissory note, but only contemplated a duty ad valorem being paid on notes. The terms used in the act are, that upon every promissory note above 57. and not exceeding 307. "shall be charged a stamp duty of sixpence." Indeed the meaning of the Legislature is explained by the sixth section, in which it is provided that if any promissory note contrary to the true intent of the act, shall be stamped or marked with a stamp or mark of a lower denomination or value than by the act is directed, the drawer shall be answerable to the crown for the duty. It is true that in Manning v. Livie Bayley on Bills, p.20. note (c); and in Robinson v. Drybrough, 6 T. R. 317. where the stamps upon the instruments were composed of duties laid on by different statutes, a stamp ad valorem was held insufficient; but in the the latter case there is a reference to a case of Legge v. Tyte, E. 30 Geo. 3. B. R. where a contrary doctrine was laid down, and in Acheson v. Sharland, 1 Esp. N. P. Cas. 292. Lord Kenyon admitted a promissory note in evidence, written upon a sixpenny receipt stamp, sixpence being the amount of the duty upon the note, and that duty not being compounded of several sums, but laid on by the same statute. Praed Serjt. in support of the rule. The 22 Geo. 3. c. 33. which was the first act, imposing a duty on promissory notes, does not impose any duty on receipts, and the second section of that act enacts that the commissioners for the better levying the duties shall use and provide such stamps to denote the said several duties as shall be requisite in that behalf. When the commissioners therefore have provided a particular stamp for a particular instrument, it becomes the same thing under the above enactment as if the Legislature had expressly directed a peculiar stamp as applicable to that particular instrument only. In the 27 Geo. 3. c. 13. s. 41. the Legislature recites, that the duties on vellum parchment and paper are applicable to various purposes, and the commissioners are directed to keep separate accounts of the monies arising therefrom, and to provide distinct dies or stamps to denote each duty; and then to prevent the multiplication of stamps, empowers the commissioners to cause one new stamp, die, or mark to be provided to denote each rate of duty upon each piece of vellum, paper, or parchment. No stamp therefore can be deemed the stamp which the Legislature has directed, unless it be the stamp which the commissioners have required. Indeed the 23 Geo. 3. c. 49. which repealed the 22 Geo. 3. c. 33. has a similar provision, requiring the commissioners to provide such stamps as they shall deem necessary; and to keep separate accounts. The 31 Geo. 3. c. 25. preserves the 1804. CHAMBERLAIN v. PORTER. 1804. CHAMBERLAIN v. PORTER. the distinction between the stamps upon receipts and promissory notes, as well as the 35 Geo. 3. c. 55. and the 37 Geo. 3. c. 90. Indeed while the Legislature keep distinct the accounts of monies received from the different stamp duties, the several stamps cannot be blended, nor will the mere value of the stamp give validity to the instrument, unless it be also the proper kind of stamp. The intention of the Legislature upon this point may be collected from the preamble of the 37 Geo. 3. c. 136. which recites that deeds and other instruments cannot be given in evidence, nor are in any manner available, unless stamped with the proper stamps, provided for such purpose, and that from the variety of stamps provided for different purposes mistakes have arisen and may again arise in the - use of such stamps, for want of knowing the proper denomination or value required in particular cases; and the 5th section provides that a bill of exchange or promissory note, drawn upon a stamp of an improper denomination but of equal or superior value, may be stamped by the commissioners on payment of the duty and a penalty. In Manning v. Livie, Lord Kenyon refused to allow a note to be read, which was on a deed stamp, and in Robinson v. Drybrough, his Lordship says, it is absolutely necessary that the distinction of the several stamps should be preserved in courts of justice as long as that distinction is kept up by the Legislature. When therefore he comes to revise the opinion given by him in Acheson v. Sharland, he thinks that a stamp ad valorem is insufficient: and in Farr v. Price, 1 East, 55. the Court determined that no other than the peculiar stamp appropriated by the law to the particular instrument will avail, even and though the stamp used be of greater value; nor is the authority of that case shaken by the case of Taylor v. Hague, 2 East, 414. where the Court held a promissory note upon a stamp of an higher value than was required, available on the particular ground that the value was composed of three |