no opinion was given as to the sufficiency of the Decisions on the stamp '.

It has been holden, that a bill payable at sight, is not to be considered as a bill payable on demand, so as to be exempt from duty, under the stamp act, 23 Geo. 3. c. 49. s. 4. in favour of bills payable on demand".

Upon the exempting clause in the former acts, in favour of checks on bankers, it has been holden, that the person on whom the check is drawn, must be bonâ fide a banker, and that a draft on a banker, post dated, and delivered before the day of the date, though not intended to be used till that day, must be stamped, or will be void.

It was provided by statute 31 Geo. 3. c. 25. s. 19. (to which 55 Geo. 3. c. 184. s. 7. refers,) that unless the paper on which a bill or note be written, be stamped with the proper duty, or a higher duty, it shall not be pleaded or given in evidence in any court, or admitted to be good, useful, or available, in law or

Israel. Benjamin, 3 Campb. 40.

l'Anson v. Thomas, B. R. Trin. 24 Geo. 3.-Bayl. 42. In an action on an inland bill, the question was, whether it was included under an exception in the stamp act of 23 Geo. 3. c. 49. s. 4. in favour of bills payable on demand, and the court held it was not; and Buller, J. mentioned a case before Willes, C. J. in London, in which a jury of merchants was of opinion, that the usual days of grace were to be allowed on bills payable at sight. See also Dehers v. Harriot, 1 Show. 164.

'Castleman v. Ray, 2 Bos. & Pul. 383. Action for money had and received: defendant pleaded set-off as to part, and produced the following paper, unstamped, in evidence, to support his plea :—

The defendant objected to this paper being received in evidence, as not falling within section 4. of 23 Geo. 3. c. 49. Castleman not being a banker; and Chambre, J. before whom the cause was tried, being of that opinion, a verdict was found for the plaintiff, and the court, upon motion, refused a rule for a new trial. See also Ruff v. Webb, Esp. Rep. 129.

Allen. Keeves, 1 East. 435.-Whitwell v. Bennet, 3 Bos. & Ful. 559.

statutes relative to stamps.

statutes relative

to stamps.

Decisions on the equity; and that it shall not be lawful for the commissioners, or their officers, to stamp any bill or note after it is made; and though, upon this statute, it has been held, that if the commissioners exceed their authority, and do stamp the bill or note after it has been made, no defence can be established, to an action founded on the bill or note, on that ground, because it would be injurious to paper credit, if it were necessary for an indorsee to ascertain, before he takes a bill, whether or not it was stamped previously to its having been made'; yet, according to more recent decisions, it should seem, that, at least, if the instrument be in the hands of the party, in whose favour it was originally made, a subsequent stamping would not render it available against such positive

enactment".

It being found that the above statute frequently defeated the claims of the holders of bills, the legislature passed a temporary act, whereby the commissioners of His Majesty's stamp duties, on proof by the holder that no fraud on the revenue was intended, were authorized to stamp bills, &c. after they were drawn, on payment of a certain penalty; but as the power of commissioners under this act has long since expired, and as bills and notes are excepted in the 43 Geo. 3. c. 127. s. 5. and 44 Geo. 3. c. 98. s. 24. the holder of a bill has no civil remedy thereon, if it be either unstamped, or bear a stamp of an inferior value to that required by the acts, or be of a different denomination 5.

Wright v. Riley, Peake Rep. 173.

2 Roderick v. Hovil, 3 Campb. 103.-Rapp v. Allnut, id. 106.

in notis.

3 34 Geo. 3. c. 32.

Bayl. 26. in notes.-Phil. Evid. 3d. ed. 459, n. *.

5 In criminal prosecutions, the want of a proper stamp is not in general an available objection. See the cases, 1 Chitty Crim. Law, 582 to 584.-Phillips on Evid. 3d ed. 454 to 458. And as to the instances in which an unstamped bill or note may be given in evidence, see 3 Bos. & Pul. 316.-Peake Rep. 75.-15 East. 449. 455.-Phillips Law of Evid, 3d ed. 403. 454. In Gregory v. Frazer,

statutes relative

An authority, however, was given to the commis- Decisions on the sioners by 37 Geo. 3. c. 136. s. 4. to stamp bills, to stamps. checks, and notes, with the additional stamp duty imposed by 37 Geo. 3. c. 90. at any time before the 1st November, 1797, without any penalty, and the following section (which appears to be still in force') provides, that any bill, &c. made after the passing of the 37 Geo. 3. c. 136. and liable to any stamp duty under 31 Geo. 3. c. 25. and which shall be stamped with a stamp of a different denomination from that required by that act, may, if the stamp be of equal or superior value to the stamp required, be stamped with the proper stamp, on payment of the proper duty, and 40s. if the bill be not due, or £10. if due; and the commissioners are thereupon to give a receipt for the duty and penalty so paid, on the back of the bill, and such bill will be valid in any court. Previously to this act, a bill stamped with an improper stamp was valid, provided it was a stamp required under 31 Geo. 3. c. 25. and was of the same or greater value than the proper one'; but where, in an action on a note by an indorsee, the stamp appeared to be a 7s. deed stamp, Lord Kenyon said the note could not be received in evidence, and the plaintiff was accordingly nonsuited 3.

Previously to the enactment in the 43 Geo. 3. c. 127. it was held that a promissory note for £25: 5s. written upon a 9d. stamp (being the stamp imposed by 31 Geo. 3. c. 25. on notes not exceeding £50. but which

3 Campb. 454, it was held, that although a promissory note, without a stamp, cannot be received in evidence as a security, or to prove the loan of money, it may be looked at with a view to ascertain a collateral fact; and therefore, in this case, the action being for money lent, and the defence was, that the defendant had been made drunk by the plaintiff, and induced to sign the note, without any consideration, Lord Ellenborough held, that the note might be looked at by the jury as a cotemporary writing, to prove or disprove the fraud imputed to the plaintiff.

'Chamberlain v. Porter, 1 New. Rep. 30.

231 Geo. 3. c. 25. s. 19. Chamberlain v. Porter, 1 New. Rep. 34. Manning v. Livie, cor. Lord Kenyon, sittings after M. T. 1796. Bayl. 37. n. (a).

statutes relative

to stamps.

Decisions on the at the time of the making of the note had ceased to be the proper stamp or any note whatever,) instead of an 8d. stamp, (being that required by 37 Geo. 3. c. 90. on notes not exceeding £30.) was void'; but it is afterwards held, that a promissory note for £45. which by law required a stamp of 1s: 6d. composed of three different sums, applicable to three different funds, under three acts of parliament, being written on a 2s. stamp, composed of three different sums, applicable to the same funds, though in larger proportions to each than was required, such note is good. To obviate the objection on account of a larger stamp being imposed than was necessary, it was enacted by the 43 Geo. 3. c. 127. s. 6. that, every instrument, matter, or thing, stamped with a stamp of greater value than required by law, shall be valid, provided such stamp shall be of the denomination required by law for such instrument, &c. and by the recent act 55 Geo. 3. c. 184. s. 10. it is provided, that all instruments upon which any stamp duty shall have been used, of an improper denomination or rate of duty, but of equal or greater value in the whole with the proper stamp, shall be valid, except where the stamp used on such instrument shall have been specifically appropriated to any other instrument, by having its name on the face.

Under the former acts, qualifying the right to reissue bills after payment, it has been determined, that after a bill has been returned to, and paid by the drawer, he may, without a fresh stamp, indorse the bill over to a new party, who may in his own name sue the acceptor, because the prohibition against reissuing after payment imports only a payment by the acceptor 3.

If a bill or note be made in any part of the King's dominions, as in Jamaica, where by the law of

Farr v. Price, 1 East. 55. see observations in Bayley, 37.

Taylor v. Hague, 2 East. 414.

3 Callow v. Lawrence, 3 M. & S. 95.

statutes relative

such place a stamp is required, such instrument can- Decisions on the not be recovered upon in any court here, unless pro- to stamps. perly stamped, according to the law of the place where the same was made'; but our courts do not regard the Revenue Laws of a foreign independent State2. When a bill of exchange or promissory note is not properly stamped, it has been held, that a neglect to present it for acceptance or for payment, will not discharge the drawer or indorser from liability to pay the original debt, in respect of which it was indorsed or delivered to the holder; and if there be any such original debt, between the holder and such drawer or indorser, the holder, though he cannot recover upon such instrument, may nevertheless sustain his action for such original debt*. But where there is no pri

1 Alves v. Hodson, 7 T. R. 241.-2 Esp. Rep. 528. S. C.-Clegg . Levy, 3 Campb. 166.

2

Roach v. Edie, 6 T. R. 425.-Boucher v. Lawrence, Rep. Temp. Hardw. 198.-Holman v. Johnson, Cowp. 343.-Clugas v. Penaluna, 4 T. R. 467.-Park. on Ins. 7th ed. 390.-Marsh. on Ins. 1st ed. 51, 55. in which this point is discussed.

3 Wilson v. Vysar, 4 Taunt. 288. Action for goods sold, defence, payment. A bill drawn by H. on B. and accepted by the latter, and indorsed by defendant to plaintiff, for such goods. It was not presented for payment when due, and in consequence of the laches, payment was refused by the drawer and the defendant. To rebut this defence, the plaintiff proved that the bill was drawn on a stamp of inferior value to that received by the statute and therefore could not be given in evidence for the defendant, it was then proved, that if it had been presented at maturity, it would have been paid; but the court held, that as the bill was not properly stamped, they could not consider it as payment.

Ruf v. Webb, 1 Esp. Rep. 129. Assumpsit, for work and labour, and it was decided, that a draft in these words "Mr. R. will much "oblige Mr. W. by paying to I. R. or order £20. on his account," was a bill of exchange, and could not be given in evidence without a stamp, and also that such draft, although taken without objection by the party at the time, was not any discharge of the subsisting debt.

But in Swears v. Wells, 1 Esp. Rep. 317. Where a creditor had agreed to take part of his debt in hand, and a note for the remainder at a future day, but which note was by mistake given upon a wrong stamp, it was held, that having taken the money to be paid in hand, he was compellable to wait till the time when such security would become due, unless in the mean time the party had refused to give a note properly stamped, and see Chamberlain v. Delarive, 2 Wils. 353.

*See the cases in the last note, and Brown v. Watts, 1 Taunt. 353. Alves v. Hodson, 7 T. R. 243. and Tyte v. Jones, cited 1 East. 58. n. (a). Puckford v. Maxwell, 6 T. R. 52.-White v. Wilson, 2 Bos. & Pul. 118.-Wilson v. Kennedy, 1 Esp. Rep. 245.-Wade v. Beaze ley, 4 Esp. 7.