CHAPTER IX. Reservation of interest. Effect of want of a stamp. The reservation of interest on a bill or note does not in any case render 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 (a); although interest be reserved from a day prior to the date of the instrument (b). A bill or note 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 (c). But an instrument not duly stamped might always be looked at for a collateral purpose. In an 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 (d). The statute 17 & 18 Vict. c. 83, s. 27, contained an express provision that an unstamped instrument might be admitted in any criminal proceeding. But long before that statute it had been held no defence in a prosecution for forgery that the instrument was not duly stamped (e). So it has been held that if A. and B. enter into a written agreement, duly stamped, and afterwards (a) Pruessing v. Ing, 4 B. & Ald. 204; 23 R. R. 253. (b) Wills v. Noot, 4 Tyrw, 726; 39 R. R. 886. (c) Sect. 14 (4); Wilson v. Vysar, 4 Taunton, 288; Jardine v. Payne, 1 B. & Ad. 663; Cundy v. Marriott, 1 B. & Ad. 696; 35 R. R. 416. But an unstamped intrument was admissible to prove an agreement illegal, Coppock v. Bower, 4 M. & W. 361; or to prove usury, Nash v. Duncomb, 1 M. & Rob. 104; or to corroborate a witness, Dover v. Maestaer, 5 Esp. 92; or to refresh his memory, Maughan v. Hubbard, 8 B. & C. 14; 32 R. R. 328; Birchall v. Bullough, [1896] 1 Q. B. 325; 65 L. J. 252. In Smart v. Nokes, 6 M. & G. 911, the Court of C. P. allowed an unstamped bill to be given in evidence to negative by anticipation a plea of payment. Sed quære, and see sect. 14 (4); and Ashling v. Boon, [1891] 1 Ch. D. 568; 60 L. J. 306. (d) Gregory v. Fraser, 3 Camp. 454; and see Holmes v. Sixsmith, 7 Ex. 802; Watson v. Poulson, 15 Jur. 1111: Keable v. Payne, 8 A. & E. 555; R. v. Gompertă, 9 Q. B. 824. (e) R. v. Hawkswood, Bayley, 6th ed. 91; 3 East, P. C. 955; R. v. Teague, Bayley, 6th ed. 574; 2 East, P. C. 79. IX. enter into another written agreement on the same subject- CHAPTER 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 (ƒ). But when the acceptor of a 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 (g). A note, reciting that deeds had been deposited as a security, does not, as a note, require a mortgage stamp (h). A promissory note which amounts to an equitable mortgage may have the mortgage stamp affixed subsequently (i). The objection to the stamp, whether for insufficiency or absence, should in general be taken before the instrument is read; hence, where it is intended to rely on such a point, the pleadings must be so framed as to necessitate the production of the instrument. But where the defect requires extrinsic evidence to show it, the instrument is to be shown to the judge, and the ground of objection afterwards proved (k). If a judge of the High or a County Court rule against a stamp objection, his decision cannot be reviewed, and he ought not to reserve the point (7). The absence of a stamp on a bill or note cannot be pleaded (f) Reed v. Deere, 1 B. & C. 261; see Swears v. Wills, 1 Esp. 317. (g) Sweeting v. Halse, 9 B. & C. 365; 4 M. & R. 287. 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. (h) Fancourt v. Thorne, 9 Q. B. 312. (i) Wise v. Charlton, 4 A. & E. 786; 6 N. & M. 362; 2 H. & W. 49, ss. 4 (b) and 86 (2). But not the note stamp, 37 (2). And see (k) Field v. Woods, 7 Ad. & El. (1) Ord. XXXIX. r. 8; 17 & 18 Vict. c. 125, s. 31; Siordet v. Kuczynski, 17 C. B. 251; Heiser v. Grout, 5 H. & N. 35; Blewitt v. Tritton, 61 L. J. 773; Mander v. Ridgway, [1898] 1 Q. B. 501. But see Eames v. Smith, 1 Jur. N. S. 1025. But an improper rejection of a document is (subject to Ord. XXXIX. r. 6) ground for a new trial. Sharples v. Rickards, 2 H. & N. 57. CHAPTER Presumption as to stamp. unless the plea show that the instrument cannot be made good by being stamped before the trial (m). If a bill be either lost, or detained by the opposite side after notice to produce, the presumption of law is that it was duly stamped, unless the contrary be shown (n). (m) Bradley v. Bardsley, 15 L. J., Ex. 115; 3 D. & L. 476; 14 M. & W. 873. See, however, Lazarus v. Cowie, 3 Q. B. 465; Tattersall v. Fearnley, 17 C. B. 368. (n) Marine Insurance Co. v. Haviside, L. R., 5 H. L. 625. the Code. An inland bill is one which is, or on the face of it purports inland under to be, both drawn and payable within the British Islands, or drawn within the British Islands upon some person resident therein. Any other is a foreign bill. Unless the contrary appear on the face of the bill or note, the holder may treat it as inland (a). For the purposes of the present Stamp Act, 54 & 55 Vict. Under the c. 39, only bills or notes made (or purporting to be made) Stamp Act. out of the United Kingdom, are to be deemed foreign bills or notes (b). (a) Code, s. 4. Hence protest is unnecessary. British Islands include the Isle of Man and the Channel Islands, as well as the United Kingdom of Great Britain and Ireland. Com. Dig. tit. Nav. 2, 3 & 4; Godfrey v. Coulman, 13 Moo. P. C. C. 11; Heywood v. Pickering, L. R., 9 Q. B. 428. By the 19 & 20 Vict. c. 97, s. 7. (this section is repealed by Code), bills and notes drawn or made in one part and payable in any other part of the British Islands were inland. A cheque, therefore, though really drawn abroad, if it do not show that on its face, is, or at all events may be, treated (b) Sects. 34-36. Hence bills CHAPTER At common law. Bill in a set. Inland bills, at common law, are such as are both drawn and payable within the limits of England, Wales, and Berwick-on-Tweed. Foreign bills at common law are such as are drawn or payable abroad, or drawn in one realm of the United Kingdom, and payable in another (c). A bill of exchange is primâ facie inland; but in an action brought on a foreign bill against a drawer or indorser, the declaration ought to have stated it to be so (d), or the defendant would be entitled to succeed on the ordinary traverses of the material allegations in the declaration. Formerly, the acceptor of a bill purporting to be foreign, but really made in England, and known by the acceptor at the time of acceptance to be so, was not precluded from objecting, in an action by an innocent indorsee, that it really was an inland bill, and therefore void for want of a stamp (e). But there was an implied warranty by a transferor that a bill apparently drawn abroad really was so (f). Now, however, every bill of exchange which shall purport to be drawn at any place out of the United Kingdom, shall, for the purposes of the Stamp Act, be deemed a foreign bill (g). Foreign bills are often drawn in parts, each part being numbered and containing a reference to the other parts; the whole of the parts then constitute one bill (h). (f) Gompertz v. Bartlett, 2 E. & B. 854. (g) 54 & 55 Vict. c. 39, s. 36; see, too, 27 & 28 Vict. c. 56, s. 2 (now repealed); and 17 & 18 Vict. c. 83, s. 4 (also repealed); and Siordet v. Kuczinski, 17 C. B. 251. The Code covers the case of a bill really drawn abroad, but purporting to be drawn here; e.g., a cheque drawn abroad by an Englishman travelling, which might otherwise when presented or negotiated here require an ad valorem stamp; see, however, Ex parte Boyse, 33 Ch. D. 612; 56 L. J. 135; and sect. 34 (1) and Sched. tit. "Bill on demand." (h) Code, s. 71. Il existe dans la négociation des lettres de change un usage qui la facilite et assure leur paiement rapide; c'est la faculté de tirer par première, seconde, et troisième, &c., &c., c'est à dire de souscrire plusieurs exemplaires. Cet usage remonte à des temps déjà reculés; il était en vigueur sous l'ancienne législation, et Cleirac en cite des exemples qui se rapportent au milieu du seizième siècle. Il n'est pas sans intérêt de reproduire ses observations fort sensées : "Et d'autant que les lettres de change sont des papiers volans, des petits poulets, ou billets, Polizza di Cambio, qui se peuvent |