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duty of

2. s. d. And for every entire quantity of 1080 words contained therein, over and above the first 1080 words, a further progressive

1 5 0 Provided always, that where divers letters shall be offered in evidence to prove any agreement between the parties who shall have written such letters, it shall be sufficient if any one of such letters shall be stamped with a duty of 1l. 15s. although the same shall in the whole contain twice the number of 1080 words or upwards.

Exemption

from the preceeding and all other Stamp Duties.

Memorandum or agreement for granting a lease or tack at rack-rents of any messuage, land, or tenement, under the yearly rent of 51.

Memorandum or agreement for the hire of any labourer, artificer, manufacturer, or menial servant.

Memorandum, letter, or agreement, made for or relating to the sale of any goods, wares, or merchandize.

Memorandum or agreement made between the master and mariners of any ship or vessel, for wages, on any voyage coastwise from port to port in Great Britain.

Letters containing any agreement (not before exempted) in respect of any merchandize, or evidence of such an agreement, which shall pass by the post, between merchants or other persons carrying on trade or commerce in Great Britain, and residing and actually being at the time of sending such letters at the distance of fifty miles from each other.

By section X. of this statute it is declared, “ that from and after the passing of this act, all instruments for or upon which any stamp or stamps shall have been used of an improper denomination or rate of duty, but of equal or greater value in the whole with or than the stamp or stamps which ought regularly to have been used thereon, shall nevertheless be deemed valid and effectual in the law ; except in cases where the stamp or stamps used on such instruments shall have been specially appropriated to any other instrument, by having its name on the face thereof."

A written instrument, which requires a stamp, cannot be admitted in evidence, unless it be duly stamped ; and no parol evidence will be received of its contents. If, therefore, the instrument produced is the only legal proof of the transaction, and that cannot be admitted for want of a proper stamp, the transaction cannot be proved at all; as, in action for use and occupation, if it appears that the defendant held under a written agreement, which for want of a stamp cannot be received, the plaintiff will not be allowed to go into general evidence ; for the agreement is the best evidence of the nature of the occupation. But it may happen, in a variety of cases, that the transaction is capable of being proved by other evidence besides the written instrument; and the objection arising from the stamp acts may be avoided by resorting to that other species of proof. (a)

A lost agreement, however, not having been stamped, precludes parol evidence. (6) And an agreement requiring a stamp, though coming out of the possession of an adverse party under a notice to produce, cannot be read in evidence without being properly stamped ; (c) for the party requiring the production may, by an application to a judge, compel the opposite party to attend with it at the stamp office for the purpose of having it properly stamped.

The cases which will be brought in review in the remaining part of this chapter have been determined upon former stamp acts not now in force. But as those acts relate to duties payable on the same kind of instruments as are mentioned in the present stamp act, and as this act uses nearly the same words as the former, it is conceived the following cases will be found useful in the construction of the present stamp act. I shall therefore consider them in the following order, viz.

1. Of agreements not within the stamp acts. 2. Of agreements relating to different subjects, with several persons ;

and of distinct and separate agreements on the same paper, but

with one stamp only. 3. Of the effect of altering an agreement after it has been executed. 4. Of the exempting clause relating to the sale of goods. 5. Of the exemption in favour of letters passing by the post between

merchants and others, &c.

1. OF AGREEMENTS NOT WITHIN THE STAMP ACTS.

An agreement made abroad, or at sea, is not within the stamp acts. (d) But if an instrument be executed in a foreign country, and by the laws of that country a stamp is required, it cannot be received in evidence in this country, unless it is stamped with the proper stamp imposed upon such instruments by the laws of the foreign country. Thus, in the case of Alves v. Hodson, (e) which was an action for sailors' wages

for the voyage or run from Jamaica to London, upon the following written note, viz.

“Three days after the arrival of the ship Neill Malcolm at her moorings in the river Thames, I promise to pay William Alves 50 guineas, if he

(@) Phil. on Evid. c. 9.

(d) Zimenes v. Jaques, 1 Esp. Rep.311. 6) Rippiner v. Wright, 2 Barn. and Winbled v. Malmberg, Ibid. 454. Ald. 478. et vide 3 B. & A. 588. S. P. (e) 7 Term. Rep. 241. & 2 Esp. Rep.

(c) Doe v. Hore, 2 Esp. Rep. 724. 528. S.C.

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does his duty as an able seaman on board the said ship. J. Hodson, Jamaica, July 25, 1796."

At the trial it was proved by a clerk from the office of the secretary of state, who produced the acts of assembly of the island of Jamaica, by one of which a stamp duty of ls. 3d. was imposed on every sheet, or piece of paper, whereon was written any promissory note above 201. and not exceeding 501., and so progressively. The note in question not being stamped, the counsel for the defendant objected to its being read in evidence. On the other side it was contended, that this was a mere revenue law of that country, by which the courts of this country were not bound. But Kenyon Ch. J. said, “In deciding on instruments made abroad, I think we are bound to consider the laws of that country where the contract is made ; and if they are not obligatory by such laws, they cannot be enforced here. By the law of Jamaica, given in evidence, the instrument produced would be invalid for want of a stamp. I am therefore of opinion, that we cannot give it validity here." And of this opinion was the Court upon a motion to set aside the verdict, and for leave to enter a nonsuit.

So, an agreement made in England to accept a bill of exchange drawn abroad requires a stamp. (f) If an instrument be inadmissible in evidence in a foreign country without a stamp, it cannot in general be admitted in our courts; the law, however, of that country must be distinctly proved. (g)

A mere written acknowledgment of a debt need not be stamped. Thus, in the case of Fisher v. Leslie, (h) which was an action for money lent, and for money due upon an account stated. At the trial, in support of the plaintiff's case, the following paper writing, signed by the defendant, was produced and proved, “I.O. U. eight guineas." On

the defendant, it was contended that this paper ought to be stamped, either as a promissory note, or a receipt for money. But Eyre Ch. J. said, “ I am of opinion that it is merely an acknowledgment of a debt, and neither a promissory note or a receipt ; and it was accordingly admitted and read in evidence.

A letter containing a contract of marriage need not be stamped, being considered as falling within the words, “ the matter thereof not being of the value of 20l." (0) So, an agreement to confess judgment for a sum exceeding 201., to secure a sum under that amount and costs, is an agreement under 201. (k) So, where an article is sold by auction in separate lots to the same purchaser, if each separate lot be under 201. value, no stamp is requisite. (1)

A cognovit containing any matters of agreement, as to take the debt (1) Crutchley v. Mann, i Mar. 29. i) Orford v. Cole, 2 Stark. 351. 5 Taunt. 529. S. C.

(k) Ames v. Hill, 2 Bos. & Pul. 150. (g) 3 Campb. 166.

(1) Emmerson v. Heelis, 2 Taunt. 38. (W) 1 Esp. Rep. 426. i Campb. 499. But see Chitty on Bills, 5 ed. 428. n. 5.

the part

by instalments, must have an agreement stamp. But a mere cognovit without any matter or agreement does not require a stamp. (m) Articles of agreement under seal cannot be given in evidence unless stamped with a deed stamp. (n) An instrument by which the party promises to pay the sum of 651., and also such other sums as, by reference to his books, he owed, with interest, is not a promissory note, and, therefore, cannot be given in evidence without an agreement stamp. (0) A memorandum given by an overseer of the poor to the reputed father of a bastard that he had received a bill of exchange for a certain sum of money, which when paid would exonerate him from the expences attending the birth and maintenance of such child, does not require an agreement stamp. (p)

A copy of an advertisement in the Gazette, of an agreement to dissolve a partnership, must have an agreement stamp. (9) But a mere notice of a dissolution does not require to be stamped. (r)

If an action is brought upon an agreement contained in a prospectus of terms delivered by the plaintiff to the defendant, that identical prospectus so delivered must be stamped; the stamping of a copy is not sufficient. (8) It has, however, been held, that a person signifying by a printed prospectus the terms on which he was ready to engage to perform particular services, may, in an action against one who has employed him under those terms by a parol agreement, read the prospectus in evidence, without being stamped. (t) But a schoolmaster's printed terms delivered to a parent, requiring a month's notice of the removal of a scholar, cannot be given in evidence without a stamp. (u)

A proposal to do certain works, containing an estimate of the amount, not finally acceded to, may be read in evidence, although not stamped. (v)

A written paper signed by an auctioneer, and delivered to the bidder, to whom lands were let by auction, containing the description of the lands, the term for which they are let to the bidder, and the rent payable, must be stamped, though it be only evidence of part of the contract. () But unless such paper be signed by the auctioneer, it need not be stamped. (x) And any writing which would be evidence of part of the contract only, must be stamped. (y)

So, a schedule requires a stamp, as being part of the agreement to which it is annexed. (z)

188.

(m) Reardon v. Swaby, 4 East. Rep.

(n) Robinson v. Drybrough, 6 T.R. 517.
Sed ante sect. 10. of the stamp act.
(0) Smith Nightingale, 2 Stark. 375.

Watkins v. Hewlett, 3 Mo. 211.
May v. Smith, 1 Esp. Rep. 283.
Jenkins v. Blizard, i Stark. 418.
Williams v. Stoughton, 2 Stark. 292.

(1) Edgar v. Blick, i Stark. 464.
(u) 2 Stark. 292.
(o) Pennifordv. Hamilton, 2 Stark. 475.

(w) Ramsbottom v. Mortley, 2 M. & S. 445.

(x) Same v. Tunbridge, Ib. 434.
(y) 2 M. & S. 445.
(z) 3 East Rep. 326.

So, a bill of parcels subscribed “ Settled by two bills, one at nine and the other at twelve months,” requires either a receipt or an agreement stamp.(a)

2. OF AGREEMENTS RELATING TO DIFFERENT SUBJECTS

WITH SEVERAL PERSONS; AND OF DISTINCT AND SEPARATE AGREEMENTS ON THE SAME PAPER, BUT WITH ONE STAMP ONLY.

It is now settled, that though a deed or agreement may affect the separate interest of several parties, yet if there be a community of the same subject matter as to all of them, one stamp will be sufficient; but where the parties have separate and distinct interests in different subjects, in that case there must be a separate stamp for each party.(6) Thus, in the common case of a deed or agreement between a debtor and his creditors, where each creditor signs the same, and thereby agrees either to give further day of payment of their respective debts, or to accept a certain sam by way of composition; in that case, though the agreement is in fact a separate covenant, and the several deed of each creditor, yet, as there is a community of the same subject matter, and the whole being one transaction only, a separate stamp for each person is not required. (c) So, where one paper contains two contracts for the purchase of different lots by several persons, and a proper stamp be impressed on that part of the paper on which is written one of the contracts, this is sufficient to legalize the evidence of that particular contract. But in order to make both contracts binding, there must be two stamps. (d)

So, though an agreement by several individuals for a subscription to one common fund, is, in its nature, separate as to each subscriber, yet it requires but one stamp. (e) And an agreement relative to prize shares, though several as to each person, requires one stamp only. (f) So, where a wager upon a horse-race was reduced into writing, which was duly stamped, and the bet was afterwards, by indorsement, doubled; it was determined that the stamp was sufficient to cover the original bet, but not the latter. (g)

3. OF THE EFFECT OF ALTERING AN AGREEMENT AFTER

IT HAS BEEN ONCE EXECUTED AND DELIVERED.

Where an agreement has been signed by one party only, and previously to the other party signing it, a new stipulation is inserted; such

(a) Smith v. Kelly, 4 Esp.Rep. 249. (b) 13 East Rep.

246. (c) i New.Rep. 274. 1 Marsh. 525. (d) 12 East Rep. 6. 13 East Rep. 241.

E

(e) 13 East Rep. 232.
f) Ibid. 235. n. 6.

Peake's N.P.Cas. 127.

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