+ Notes and bills so improperly re-issued are void; (64) But payment upon them must first have been made. according to the law merchant, that is, at maturity and not by anticipation. (65)

And if a note or bill be paid at maturity by a person entitled to recover against any other parties upon it, he may re-issue it. (66)+

Notes payable to the bearer generally, without specifying any time for payment, are payable on demand.

pose; or if any person or persons shall re-issue, or cause or permit to be re-issued, any promissory note, bill of exchange, draft or order for money, not hereby allowed to be re-issued, at any time after the payment thereof; or if any person or persons paying or causing to be paid any such note, bill, draft or order as aforesaid, shall refuse or neglect to cancel the same according to the directions of this act, then, and in either of those cases, the person or persons so offending shall for every such note, bill, draft or order as aforesaid, forfeit the sum of 501.; and in case of any such note, bill, draft or order being re-issued contrary to the intent and meaning of this act, the person or persons re-issuing the same, or causing or permitting the same to be re-issued, shall also be answerable and accountable to his Majesty, his heirs and successors, for a further duty in respect of every such note, bill, draft or order, of such and the same amount as would have been chargeable thereon in case the same had been then issued for the first time, and so from time to time as often as the same shall be so re-issued; which further duty shall and may be sued for and recovered accordingly, as a debt to his Majesty, his heirs and successors; and if any person or persons shall receive or take any such note, bill, draft or order, in payment of or as a security for the sum therein expressed, knowing the same to be re-issued contrary to the intent and meaning of this act, he, she, or they shall, for every such note, bill, draft or order, forfeit the sum of 201."

† (64) Lazarus v. Cowie, 3 Q. B. 459. To an action by indorsee against defendant as acceptor of a bill drawn on him by Arnold, he pleaded that he accepted it for the accommodation of Arnold, who paid it when due, and afterwards indorsed it to plaintiff without its being re-stamped. Upon demurrer, and time taken to consider, the Court held that this bill, having been paid by the person ultimately liable upon it, was discharged; that 55 Geo. III. c. 184, s. 19 (supra), did not merely forbid a bill re-issued after payment being received in evidence, but rendered it void, and that the facts might be pleaded as a defence. Judgment for defendant. (65) Morley v. Culverwell, 7 M. & W. 174.

(66) Bartrum v. Caddy, 9 Ad. & E. 275; Callow v. Lawrence, post; and see Thomas v. Fenton, 16 L. J., Q. B. 362.

I 2

† And such notes, if paid by the person ultimately liable, are paid at maturity and cannot be re-issued. (67)

SEC. 15. The re-issuing of a bill or note, contrary to the provisions of the Stamp Act, may be pleaded as a defence to an action upon it. (68)

The objection that a bill, note, or draft requires a stamp, or that it is improperly stamped, need not be pleaded to an action upon it. (69)

It may be taken advantage of under any plea which renders it necessary for the plaintiff to give the instrument in evidence as part of his case. (70)

The objection properly should be taken before the instrument is received as evidence.

And the question, whether it requires a stamp, or is improperly stamped, should be decided by the judge, and not submitted as a question to the jury; (71)

And, for this purpose, he should at once receive evidence to impeach the admissibility of the instrument as evidence before it is read to the jury. (71)

(67) Bartrum v. Caddy, supra. (68) Lazarus v. Cowie, supra.

(69) Field v. Woods, ante, p. 25.

(70) Field v. Woods, Serle v. Norton, ante, p. 25; Steadman v. Duhamel, ante, p. 94; Bartlett v. Smith, post.

(71) Bartlett v. Smith, 11 M. & W. 483. In an action against the drawer by the indorsee of a bill, defendant traversed the drawing and indorsement, and upon the trial the bill produced appeared to have been drawn in Dublin, payable in London, and was stamped as a foreign bill. Defendant objected to its being received as evidence, on the ground that it was in fact drawn in London and required a higher stamp, and proposed to give evidence to show this. The under-sheriff, before whom the case was tried, refused to receive this at that stage, and admitted the bill in evidence; but allowed defendant in his defence to adduce the evidence, which he did; and the undersheriff then left it to the jury to say whether the bill was drawn in London. The jury found for plaintiff : but, after argument, the Court of Exchequer held that the under-sheriff ought to have received the evidence before he allowed the bill to be read; and as all questions respecting the admissibility of evidence

If a bill or note can be stamped, so as to render it available in evidence before the trial, any objection to the stamp cannot be pleaded in an action upon it. (72)+

are to be determined by the judge, he ought to have decided upon it without any reference to the jury, and made a rule absolute for a new trial.

(72) Bradley v. Bardsley, 14 M. & W. 873. To a declaration by payee against makers of a note, payable on April 15th, 1845, defendants pleaded that the note was made and completed without specifying any time for payment, and afterwards by consent, but without the same being re-stamped, it was altered by inserting 15th April, 1845, for payment. Upon demurrer to the rejoinder, on which defendants objected to the validity of plaintiff's replication, plaintiff objected that the plea was bad, inasmuch as it did not show that the note might not have been afterwards stamped under stat, 37 Geo. III. c. 136, before the trial; and the Court held that inasmuch as it might, for aught that appeared in the plea, be so stamped the plea was bad. Judgment for plaintiff.

As to whether, and how, in other cases the objection under the stamp acts can be pleaded, see Haward v. Smith, 4 Bing. N. C. 684.

118

CHAPTER IV.

SECT. 1. Of the Alteration of Bills or Notes.

2. At what Time, p. 123.

3. Onus of Proof in Case of Alteration, p. 124.

Ir a bill or note be altered in a material part (though by consent of all parties), after it has once issued, it requires (1) a new stamp;

Unless such alteration were to correct a mistake, and merely to make the bill what it was originally intended to have been, for in such case a new stamp is not necessary. (2)

(1) Wilson v. Justice, 1796. A note of nine months after date was, by consent of all parties, a fortnight after it had been delivered to the payee, altered to ten months after date. Lord Kenyon held a new stamp necessary, and nonsuited the plaintiff.

Bowman v. Nichol, 5 T. R. 537. A bill dated 2nd September, and payable twenty-one days after date, was, by consent of the acceptor, altered to fifty-one days after date on 30th September it was, with the like consent, and whilst it remained in the drawer's hands, restored to twenty-one days, but the date was altered to September 14th. Lord Kenyon nonsuited, and the Court held the nonsuit right. As to the mode of pleading in such case, see Bradley v. Bardsley, 14 M. & W. 873, ante, p. 117.†

(2) Kershaw v. Cox, 3 Esp. 246. In an action on a bill, it appeared that the defendant, who was the payee, had indorsed the bill to one K., by whom it was passed to the plaintiffs; that they, on discovering that the words, “or order," had been omitted, returned it the day after it was drawn, and the drawer, with the consent of the defendant, then inserted those words. Le Blanc, J., held, that no new stamp was necessary; that this was not a new instrument, as in Bowman v. Nichol, but merely a correction of a mistake, and in furtherance of the original intention of the parties; and the plaintiffs had a verdict. A new trial was afterwards moved for, but the Court refused a rule. See 10 East, Rep. 437.

Jacob v. Hart, 6 M. & S. 142. Indorsee against acceptor: defendant, when he accepted the bill, noticed that by mistake the date was March

Correcting the date, (3) for the mode of its negotiability (4),† to make it what it was intended, will not affect a bill or note.

An alteration of a bill or note in a material part not only makes a new stamp necessary, but vacates the bill or note (independently of the stamp laws), except as between the parties consenting to such alteration.

Where an alteration will vacate a bill or note, it will have that effect, though it were made by a mere stranger. (5)

Altering the (6) date, or sum, or (6) time for payment;

instead of April. The payee, upon communication with the drawer, altered the date to April, and the defendant subsequently approved of the alteration. Before the bill was negotiated, defendant, at the request of the drawer, wrote upon it, "Payable at Mr. J.'s, St. Mary Axe, London." It was objected at the trial that these alterations made a new stamp necessary; but Lord Ellenborough held the contrary; and, on rule nisi for new trial, the Court were of opinion he did right. Rule refused. See S. P. Byrom v. Ad. & E. 31.†

Thompson, 11

(3) Jacob v. Hart, supra; † Brutt v. Picard, Ry. & Mood. 37. (4) Cariss v. Tattersall, 2 M. & G. 890; Byrom v. Thompson, ante.† (5) Master v. Miller, 4 T. R. 320; 2 H. Bl. 141. In an action by indorsees against the acceptor of a bill, payable three months after date to Wilkinson and Cooke, the declaration had one count upon the bill as dated the 20th March, and another as dated the 26th March. The jury found a special verdict, stating that the bill was drawn and dated the 26th March; that it was accepted; and that afterwards, and whilst it remained in the hands of Wilkinson and Cooke, the date was altered from the 26th to the 20th March, without the defendant's knowledge, and by some person unknown to the jury. That after such alteration it was indorsed for a valuable consideration by Wilkinson and Cooke to the plaintiffs. After two arguments, Lord Kenyon, Ashhurst, and Grose, Js., held, that the alteration, though by a stranger, vacated the bill: Buller, J., differed; but on error, the whole Court was so clear that it was vacated that they would not hear a second argument, and judgment for the defendant was affirmed. See Henfree v. Bromley, 6 East, 309, † and Davidson v. Cooper, 11 M. & W. 77, 778; and 13 M. & W. 343. As to the necessity of pleading this defence, see Mason v. Bradley, post, p. 123; Parry v. Nicholson, Crotty v. Hodges, post, Defence, Chapter XII.† (6) Walton v. Hastings, 4 Campb. 223; 1 Stark. 215. A bill drawn by Brooks in favour of plaintiff was dated 5th July. An agent of plaintiff's presented it for acceptance, and defendant, the drawee, desired to have the date altered to the 10th, which was done accordingly, and then defendant accepted