amount of the rent, the arrears of which were now sought to be recovered. It was proved that the original agreement executed by the parties had not been stamped, and was not forthcoming, having been deposited with one Mr. Day, who had taken it with him to France, where he was then resident. A copy of this agreement was then produced by the plaintiff, and tendered in evidence, together with the penalty and stamp-duty. The reception of this as secondary evidence of the original, or as a document which could be stamped and read, under the provisions of the Common Law Procedure Act, was objected to on the part of the defendant. The learned Judge admitted it in evidence, on lodgment with the Registrar of the amount of the penalty and stamp-duty; and a verdict was had for the plaintiff, and liberty was reserved for the defendant to move that a verdict should be entered for him, if the learned Judge was wrong in receiving the copy. A conditional order to that effect having been obtained Sullivan, for the plaintiff, now appeared to show cause against same. Under the schedule to the Stamp Act (55 G. 3, c. 184), which was extended to Ireland by the 5 & 6 Vic., c. 82, the Commissioners have the same jurisdiction as to stamping a copy as the original : Bousfield v. Godfrey (a); Blair v. Ormond (b). Brereton and Leahy, in support of the conditional order. Bousfield v. Godfrey was a case of terms put upon a fraudulent party by the Court, in the exercise of its discretion. It was, no doubt, followed by the Vice-Chancellor in Blair v. Ormond; but he is reported to have said that, in doing so, he did not act upon his own opinion. Smith v. Henley (c) recognises the law that no parol evidence can be given of an unstamped agreement which has been destroyed; and Lord Lyndhurst's opinion there, as to the reception of a copy, is extra-judicial, as is observed in Blair (a) 5 Bing. 418. (b) 1 De G. & Sm. 428; S. C., 11 Eng. Jur. 665. (c) 1 Ph. 391. H. T. 1858. CONNOR v. CRONIN. VOL. 7. 61 L II. T. 1858. v. Ormond. In Rankin v. Hamilton (a), the Court rescinded an Exchequer. CONNOR v. CRONIN. order restraining one of the parties in the possession of an un- Sullivan, in reply. This is a Revenue question, and, provided the object of the Stamp Laws is complied with, and the Revenue is not damnified, the Courts will go a great length in preventing such points being made. Smith v. Henley (d) rules this very point. Lord Lyndhurst says there:-" If there was in this case a copy of the agreement, "or if your witness could verify, from recollection, the precise "terms of the agreement on which you rely, so that you might "take them down in writing, and produce that writing at the "Stamp-office, I should be very glad to act upon the authority "of that case." Rankin v. Hamilton (e) is only a question as to whether the Court has jurisdiction to make an order precluding a party from raising the question; it is not in point here. Paul v. Meek (f).[RICHARDS, B. There the document was a second original. It appears from that case that, if it had been offered as secondary evidence, it would not have been admitted. The payment of the stamp-duty on the copy cannot act so as to make it a substitute for the original.]-The original instrument is in evidence by means of the copy; it is therefore before the Court, and, being so, may be stamped.-[GREENE, B. The copy is only allowed as evidence of the original instrument, by reason of the absence of the latter. The provisions in the Common Law Procedure Act are to Exchequer. CONNOR v. CRONIN. receive a liberal construction; they are remedial, and this is a case H. T. 1858. which requires a remedy. The word "document" must be construed liberally. Lysaght v. Scully (a) shows the extent to which the Courts are inclined to go in construing the words of remedial statutes. That was a case on the Apportionment Acts, and the words, "the person making such demise," were construed to include the assignee of the lessor. PENNEFATHER, B. This case has been extremely well argued, and the Court has received a great deal of assistance from the Counsel at each side; and indeed the question is not one unattended with difficulties. The facts which give rise to this question are the following:-An unstamped document of agreement was entered into between the plaintiff and the defendant, ascertaining, as it appears by the evidence, the amount of rent to be paid by the defendant, and which is the sum sought to be recovered in the present action for use and occupation. At the trial, it was insisted that a copy of that instrument might be given in evidence, the original being out of the power of the party, and not being in the country, having been deposited with one Mr. Day, who was then residing in France. A copy was then produced, and the penalty for stamping the original was deposited with the Registrar, and the copy was stamped afterwards. It was contended then that the objection to receiving this copy was done away with, that the Revenue had received as much as it had a right to receive; and the cases of Bousfield v. Godfrey and Blair v. Ormond were insisted on as authorities for the reception of this copy in evidence. It becomes necessary for us to consider then the authority of these two cases, and the other before Lord Lyndhurst (Smith v. Henley), and to consider also how far we are bound by those authorities, considering, at the same time, the course which was taken subsequently in the case of Rankin v. Hamilton. The proposition which has been stated is rather startling; it is, in effect, that an unstamped instrument should be given in evidence, because a copy is duly stamped; and it is argued that this case (a) 6 Ir. Jur. 43. CONNOR บ. CRONIN. H. T. 1858. is helped by the late Common Law Procedure Act, which allows Exchequer. a document to be stamped, on depositing the penalty with the Registrar. To consider the case, in the first place, on the last of these points, we are all very clearly of opinion that the case must be decided independently of the late statute; that the provisions of that statute are not intended to reach the case of a document not stamped, which might have been lost, but to enable the party producing the document to read it as if it had been stamped; but it never was the intention of the Legislature to interpose furthur, or to alter the rules of evidence, and say that, where an unstamped instrument has been lost, another document may be produced and stamped as the original. It still is an unstamped instrument. The case is one which the Legislature do not appear to have contemplated; nor does it appear that they intended to suffer another instrument to be stamped instead of that original. If they intended to remedy the case of a lost unstamped instrument, they would have said so, and would have provided that, on paying the penalty and stamp-duty, secondary evidence might be given of the lost instrument; but there is nothing in the Act of Parliament to lead us to suppose any such intention on the part of the Legislature. Therefore it is that we think that this case must be disposed of as if the Common Law Procedure Act had never been passed. The main question then is this, whether the stamping of a copy gives validity to the original, and allows it, though unstamped, to be given in evidence? because, after all, the evidence is the original instrument, not the copy, which is only evidence of the original instrument. If the original be lost, and no copy has ever been taken of it, it is plain the party relying on it must suffer, and can have no redress. Then is it different because a copy happens to have been taken? On principle, I should say not; and that the. fact of this being a copy cannot alter the rights of the parties with regard to the unstamped original. The authorities to which we have been referred deserve great consideration. The first case is that of Bousfield v. Godfrey. There an order was made by the Court of Common Pleas in England, restraining a party from defeating the evidence of a stamped copy by the production of an unstamped original, and treating the stamped copy as evidence of an unstamped original. That order was made, as it appears, very much on account of the fraudulent conduct of the party raising the objection. It seems to have been the opinion of the Court that, on that account, the copy stamped should be treated as evidence. This case was followed by Vice-Chancellor Knight Bruce; and he unquestionably, on its authority alone, and against his own opinion, suffered a stamped copy of an unstamped instrument to be given in evidence. And again, Lord Lyndhurst, in the case before him (Smith v. Henley), not only recognises the authority of Bousfield v. Godfrey, but he goes further, and says, that even if the party could verify from recollection the precise terms of the agreement, so that it might be taken down in writing, he would be very glad to act upon the authority of that case. Certainly that is going a great length, and we should wish to follow anything he has decided; but considering the whole matter, and that Judges, not only in England, but also in this country, speak of points not strictly before them, and sometimes say what is not to be considered as strictly laying down the law of the land, we do not think that point has been decided; and there is no decision nor dictum to be found supporting the words attributed there to him. Resting on an authority of this kind, it is pressed on us that we ought to follow that authority, even though it should not accord with our own judgment, as ViceChancellor Knight Bruce is said to have done. He is reported to have made his decree on the authority of Bousfield v. Godfrey, although it did not accord with his own view. Now it really would be very hard to say that stamping a copy can be considered equivalent to stamping the original. Bousfield v. Godfrey was brought before the Courts in subsequent cases, and especially in Rankin v. Hamilton (a). That case came before the Court on an application to rescind an order made by Mr. Justice Erle, restraining the opposite side from setting up the want of a stamp upon the (a) 15 Q. B. 187. H. T. 1858. CONNOR V. CRONIN. |