Impressed and Adhesive Stamps.-Cancellation.

215

a stamp on any executed instrument, denoting that it is not liable to any duty, or to assess the duty thereon, and, on payment thereof, to affix thereto a stamp denoting that the full amount of duty has been paid. (4.) “ Every instrument stamped with the particular stamp denoting either that it is not chargeable with any duty or is duly stamped, shall be admissible in evidence and available for all purposes, notwithstanding any objection relating to duty." The section does not, however (5, b. c.), apply to an instrument chargeable with duty, and made as security without limit, nor to an instrument which may not be stamped after execution. See Prudential Assurance, &c., Co. v. Curzon, 8 Exch. 97; 22 L. J., Ex. 85; Morgan v. Pike, 14 C. B. 473; 23 L. J., C. P. 64. It may be observed that by sect. 19 an appeal is given from the decision of the Commissioners to the Court of Exchequer, which court is now merged in the Queen's Bench Division of the High Court, vide ante, p. 184.

Proper Denomination.] Sect. 9. "(1.) A stamp which by any word or words on the face of it is appropriated to any particular description of instrument is not to be used, or, if used, is not to be available for an instrument of any other description. (2.) An instrument falling under the particular description to which any stamp is so appropriated as aforesaid is not to be deemed duly stamped, unless it is stamped with the stamp so appropriated."

As to bills of exchange bearing a stamp or a wrong denomination, see post, pp. 226, 227.

66

Impressed and adhesive Stamps.] Sect. 23. Except where express provision is made to the contrary, all duties are to be denoted by impressed stamps only."

Adhesive stamps are allowed in the cases of the following instruments: agreements bearing 6d. stamp; agreements or leases bearing 1d., or for furnished houses, &c., bearing 2s. 6d. stamp; cheques and other bills of exchange payable on demand; foreign bills of exchange; charter-parties; contract notes; copies of registers of baptism, &c.; cost-book mine transfers; delivery orders, and warrants for goods; policies of insurance (except sea policies); protests on bills, and notarial acts; receipts.

By 45 & 46 Vict. c. 72, s. 13 (2), (extending the provisions of 44 & 45 Vict. c. 12, s. 47), adhesive postage stamps "to a proper amount may be used to denote any stamp duties of an amount not exceeding 2s. 6d., which may legally be denoted by adhesive stamps, not appropriated by any word or words on the face of them to any particular description of instrument.”

Adhesive stamps, how cancelled.] Sect. 24. (1.) "An instrument, the duty upon which is required, or permitted by law, to be denoted by an adhesive stamp is not to be deemed duly stamped with an adhesive stamp unless the person required by law to cancel such adhesive stamp cancels the same by writing on or across the stamp his name or initials, or the name or initials of his firm, together with the true date of his so writing, so that the stamp may be effectually cancelled, and rendered incapable of being used for any other instrument, or unless it is otherwise proved that the stamp appearing on the instrument was affixed thereto at the proper time." By 45 & 46 Vict. c. 72, s. 14 (1), where the stamp duty is denoted by two or more adhesive stamps, each stamp is to be cancelled in the manner above stated, and so that it shall be rendered incapable of being used for any postal purpose.

It will be seen that under these sections cancellation is not imperative; it merely obviates the necessity of adducing evidence that the stamp was

affixed at the proper time. Marc v. Rouy, 31 L. T., N. S. 372; M. T. 1874, Q. B. See further provision in the case of foreign bills, sect. 51, and decisions thereon, post, p. 226.

The several sections allowing the use of adhesive stamps enact by whom the same are to be respectively cancelled. In general the person first signing the instrumer is the proper person to cancel the stamp ; in the case, however, of charter-parties the last person executing is to cancel the stamp. See sect. 66, post, p. 233.

Time of stamping.] By sect. 15, an instrument may in general be stamped by the Commissioners of Stamps with an impressed stamp, after execution, on payment of the duty and a penalty, as to which vide infra; and instruments first executed abroad may be stamped within two calendar months after their first arrival in the United Kingdom without the payment of any penalty. If an instrument bear a proper impressed stamp when produced at the trial, it is sufficient, though it was not stamped when executed, provided the commissioners are not expressly prohibited from subsequently affixing a stamp. R. v. Chester, Bp. of, 1 Stra. 624; and see Rogers v. James, 7 Taunt. 147. The court will not inquire whether the penalty has been paid, or whether the stamp has been affixed in proper time, but will receive the instrument in evidence, when the stamp is not required by statute to be affixed within a certain time. R. v. Preston, 5 B. & Ad. 1028; Rose v. Tomlinson, 3 Dowl. 49; Lacy v. Rhys, 4 B. & S. 873, Ex. Ch., post, p. 250. But with regard to an instrument to which a stamp cannot by law be subsequently affixed, an inquiry as to the time of affixing is admissible. Green v. Davies, 4 B. & C. 235. And as an adhesive stamp cannot in general be applied to an instrument after its execution, it would seem that in this case an inquiry as to when the stamp was affixed is admissible. Express evidence as to the time of the affixing of the stamp is required by sect. 24 (ante, p. 215), unless it has been cancelled as required by that section. But where, as in the case of foreign bills of exchange, an adhesive stamp is to be affixed before negotiation in this country, if the stamp appears on the bill at the trial, this is, primâ facie, sufficient evidence. Bradlaugh v. De Rin, L. R., 3C. P. 286.

Penalty for stamping.] By sect. 15 (1), in general, the penalty for stamping after execution is 10l., and where the duty to be paid exceeds 10l., interest is chargeable on the duty at the rate of 51. per cent. per annum from the day on which the instrument was first executed to the time when the interest is equal to the amount of unpaid duty. But (2, b), the Commissioners of Inland Revenue are empowered to remit the whole or any part of the penalty, if the instrument is brought to them to be stamped within a year of its first execution. As to instruments first executed abroad, vide sect. 15, supra.

Some instruments may be stamped within a certain time of their execution without penalty; and in the case of others the amount of the penalty differs from that above stated. The special enactments relating to these instruments will be found under their respective heads, post, pp. 218 et seq.

Stamping at the Trial.] By the Stamp Act, 1870, sect. 16 (1.) "Upon the production of an instrument chargeable with any duty as evidence in any court of civil judicature in any part of the United Kingdom, the officer whose duty it is to read the instrument shall call the attention of the judge to any omission or insufficiency of the stamp thereon, and if the instrument is one which may legally be stamped after the execution thereof, it may, on payment to the officer of the amount of the unpaid duty, and the penalty

Stamping at Trial.-Objection to Stamp.

217 payable by law on stamping the same as aforesaid, and of a further sum of il., be received in evidence, saving all just exceptions on other grounds. (2.) The officer receiving the said duty and penalty shall give a receipt for the same." .” *** (3.) “Upon production to the Commissioners of any instrument in respect of which any duty or penalty has been paid as aforesaid, together with the receipt of the said officer, the payment of such duty and penalty shall be denoted on such instrument accordingly." This section is a re-enactment of the provisions of the C. L. P. Act, 1854, ss. 28, 29.

By stat. 39 & 40 Vict. c. 6, s. 2, this section is applied to a policy of sea insurance; the penalty for stamping being 1007.

Time and mode of objecting to the Stamp.] After proof of the due execution of an instrument, the rule is that it lies on the opponent to point out any objection to the stamp. If indications of an effaced stamp appear, it is for the judge to decide whether he is satisfied of its admissibility. Doe d. Fryer v. Coombs, 3 Q. B. 687; Wilson v. Smith, 12 M. & W. 401. And the objection must be made before the paper is read in evidence. Foss v. Wagner, 7 Ad. & E. 116, n. But where the objection does not appear except on extrinsic evidence, the objection may be made after it has been read. Field v. Woods, Id. 114. In that case the objection was that a cheque was post-dated. Interlocutory proof in support of the objection must be received instanter, and the question be decided by the judge. Bartlett v. Smith, 11 M. & W. 483. The court will grant a new trial where the evidence is left to the jury as part of the defendant's case. Id. If, however, the objection is not a mere stamp objection, as where the existence of the original stamped policy of insurance, a copy of which is tendered in evidence, is disputed, the whole question must be left to the jury. Stowe v. Querner, L. R. 5 Ex. 155, cited ante, p. 10. A stamp objection must be taken at the earliest possible moment. Robinson v. Vernon, Ld., 7 C. B., N. S. 235; 29 L. J., C. P. 310. Where a probate has been read without objection, its evidence could not be excluded by afterwards showing that the amount of personality passing under the will exceeded the amount covered by the stamp. S. C. Where an instrument bearing an agreement stamp only, was put in as such, and the defendant's counsel afterwards relied on it as a lease, it was held that the objection ought then to be taken to the stamp, and was too late on a motion for a new trial. Doe d. Philip v. Benjamin, 9 Ad. & E. 644. The fact that the defendant was a party to the fraud on the revenue will not estop him from objecting. Steadman v. Duhamel, 1 C. B. 888.

It was formerly competent for the parties to overlook the want of a stamp or of a proper stamp; but by sect. 16 (1), ante, p. 216, the objection is now to be taken by the officer whose duty it is to read the document at

the trial.

By Rules 1883, 0. xxxix. r. 8, "A new trial shall not be granted by reason of the ruling of any judge that the stamp upon any document is sufficient, or that the document does not require a stamp." The C. L. P. Act, 1854, s. 31, which was in like terms, is repealed by 46 & 47 Vict. c. 49; it would seem however that its effect is retained by Id. s. 5 (b), if rule 8 is ultra vires, as contravening J. Act, 1875, s. 20, ante, p. 143. Where the document is formally tendered in evidence and rejected by the judge on account of the insufficiency of the stamp, the ruling is, of course, still open to review. Sharples v. Rickard, 2 H. & N. 57; 26 L. J. Ex. 302. After the expression of the judge's opinion adverse to the reception of the document, counsel must formally tender it in evidence and require a note to be taken of the tender, otherwise the point will be of no avail on a motion for a new trial. Campbell v. Loader, 34 L. J., Ex. 50.

Stamp objections by the officer of the court are sometimes avoided by the consent of the parties to the use of copies of unstamped originals, for the officer of the court can only take such objections as the parties might have taken if this section had not been enacted. If an admitted copy of a document be put in evidence, and it afterwards appears that the original was not duly stamped, the unstamped copy is still admissible. Traviss v. Hargreave, 4 F. & F. 1078; cor. Keating, J. Where, however, the objection appeared on the face of a special case, the court refused to allow the case to be argued. Nixon v. Albion Marine Insurance Co., L. R., 2 Ex. 338.

The stamp duties chargeable on those instruments which are most frequently used in evidence at Nisi Prius will be found below, the instruments being arranged in alphabetical order.

Affidavit.

Affidavit or Statutory declaration made under the provisions of 5 & 6 Will. 4, c. 62:-2s. 6d.

Exemptions. These include affidavit (1) made for the immediate purpose of being filed, read, or used in any court, &c.; (2) required by law and made before a justice of the peace; (3) required at the Bank of England or Ireland to prove the death of, or to identify any proprietor of stock transferable there, or to remove any other impediment to the transfer of any such stock; (4) relating to the loss, mutilation, or defacement of any bank-note or bank post-bill; also (5) declaration required to be made pursuant to any act relating to marriages in order to a marriage without licence.

Agreement.

Agreement or Contract, accompanied with a deposit. See Mortgage, &c., and sect. 105, post, p. 244, et seq.

Agreement for a lease, or for any letting. See Lease, and sect. 96, post, pp. 240, 241.

66 Agreement or Contract made or entered into pursuant to the Highway Acts for or relating to the making, maintaining, or repairing of highways :-6d."

Agreement, or any Memorandum of an agreement, made in England or Ireland under hand only, or made in Scotland without any clause of registration, and not otherwise specifically charged with any duty, whether the same be only evidence of a contract, or obligatory upon the parties from its being a written instrument :-6d."

Sect. 36. "The duty of 6d. upon an agreement may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the agreement is first executed."

The exemptions contained in the schedule are treated at length, post, p. 221, et seq.

What are Agreements within the meaning of the Stamp Act.] Many documents, although they may be assistance in the proof of an original or substituted contract do not require to be stamped as agreements. Of this kind are directions and licences, which excuse what would otherwise be a trespass or a breach of contract. So also, memoranda of agreements, the terms of which do not appear to have been mutually and finally approved of by the contracting parties, before or at the time when these memoranda

were committed to writing, are regarded as mere proposals, and may be admitted in evidence without a stamp. In Ingram v. Lea, 2 Camp. 521, where a customer wrote down upon a slip of paper a description of the goods which he had ordered, which paper he signed and delivered to the shopkeeper, it was admitted in evidence without a stamp. In Parker v. Dubois, 1 M. & W. 31, where the defendant, in answer to an application to that effect, wrote back authorising the plaintiff to pay a call upon shares which the defendant had agreed to purchase from him, it was held that the letter required no stamp. In Bethell v. Blencowe, 3 M. & Gr. 119, a memorandum allowing the defendant, a projected lodger, to leave lodgings without any notice if he saw reason to suspect embarrassment in the landlord, and signed by the landlord, was, though unstamped, admitted. In Walker v. Rostron, 9 M. & W. 411, a letter written by the buyer of goods to his factors, directing them to appropriate the proceeds of the sale of the goods to the payment of bills accepted by the buyer, if these bills had not previously been honoured, was held not to require a stamp. But it would seem under the present act to require a stamp under sect. 48 (post, p. 225), as a bill payable on demand, vide post, pp. 228, 229. In Hill v. Ramm, 5 M. & Gr. 789, a memorandum signed by a tenant authorising his landlord, upon condition of withdrawing a distress, to re-enter and distrain in case of default in payment of the rent by a certain day, was held not to be an agreement requiring a stamp. In Fishwick v. Milnes, 4 Exch. 825, a document signed by a tenant, by which he requested a bailiff to forbear selling his goods, and consented that they should remain on the premises in his possession for a period of three months, when he, the tenant, would give them up, and pay all costs and charges attending the distress, was admitted without a stamp. In Edgar v. Blick, 1 Stark, 464, a prospectus containing the terms upon which the plaintiff undertook to introduce applicants to partnerships or situations, was admitted unstamped, though these terms were adopted in the agreement upon which the action was brought. In Clay v. Crofts, 20 L. J., Ex. 361, a prospectus of the terms of a school had been shown to the father of two boys, upon which he agreed to place them in the school, subject to a slight reduction in the terms of payment. It was held that the prospectus might be put in evidence without a stamp. In Ramsbottom v. Tunbridge, 2 M. & S. 434, a lease of premises was sold by auction, and the auctioneer handed to the buyer a written paper specifying the term, the rent, and the extent of the premises. This paper not having been signed, the court allowed it to be received in evidence unstamped. But in Ramsbottom v. Mortley, Ib. 445, where a similar paper was signed by the auctioneer, the court thought that it must be stamped, even although the memorandum did not satisfy the Statute of Frauds. Accord. Glover v. Halkett, 2 H. & N. 487; 26 L. J., Ex. 416.

In Vollans v. Fletcher, 1 Exch. 21, where a shareholder proved his title to shares by his letter of application and the letter of allotment in reply, in which was contained a power for the company, in default of payment of the deposit, to cancel the allotment, a term not alluded to in the first letter, an objection, that the letters required a stamp, was overruled. See Duke v. Andrews, 2 Exch. 290; Willey v. Parratt, 5 Exch. 211. In Chaplin v. Clarke, 4 Exch. 403, a letter of allotment of shares, the letter of application having been lost, was admitted without a stamp. See also Moore v. Garwood, Ib. 681, Ex. Ch. See now, however, Letter of Allotment, post, p. 243. Where the plaintiff made a memorandum in writing of an offer on his part to let to the defendant a piece of land upon the same conditions as those which had been agreed to by the defendant and a third person, to which offer the defendant afterwards verbally assented, the memorandum