In one of the columns were entered the names of all the creditors who had supplied the firm of Shoolbred & Co. with goods, and in the last column and opposite to the names of the creditors were entered all the sums due to each, and in an intervening column was written the signature of the person who received the money at the time when each account was paid. The course of business was this, viz., when any person called for the amount due to any creditor whose name was entered in the book, he was asked the amount of the debt claimed, and if the amount thereupon named by him corresponded with the amount entered in the book the debt was immediately paid by Messrs. Shoolbred's clerk, and the person receiving it was required to sign his name in the middle column of the book intervening between the name of the creditor and the sum entered as the amount of the debt. No other receipt was required or taken by Messrs. Shoolbred, but, on the other hand, if an entire stranger to both parties called for the debt and mentioned the amount correctly as entered in the book, he would receive the money upon writing his signature opposite the entry as above described. Mr. Parry, for the prosecution, tendered this entry in evidence, and proposed by means of the signature to identify the prisoner with the person receiving the cheques. Mr. Ribton, for the prisoner, contended that the entry was a receipt for money, and objected that being unstamped (which was the fact) it was inadmissible in evidence against the defendant, either in whole or in part. I overruled the objection and received the entry in evidence. It appearing that the signature was that of the defendant; and the other necessary facts having been proved, the defendant was convicted. Entertaining, however, some doubts upon

the correctness of my ruling, I consented to reserve the point for the consideration of the Justices of either Bench and Barons of the Exchequer, in pursuance of the 11 & 12 Vict. c. 78. And the foregoing is the case upon which their determination is requested, whether the entry in the book was a receipt for money within the Stamp Acts, and whether being unstamped it was improperly admitted in evidence? Judgment has been respited upon the prisoner, and he stands committed to Newgate awaiting the result of this case."

The case was argued first, on the 21st of January, but some discussion arising as to the facts, it was sent back for amendment to the Recorder, who added the following statement:" This case having been sent back for amendment in the manner required by the order of the Court for the consideration of Crown Cases Reserved, pursuant to the statute 11 & 12 Vict. c. 78, bearing date the 21st of January 1854, I now state that the signature was offered in evidence by the prosecution to prove the identity of the prisoner, and the rest of the entry was adverted to by the counsel for the prisoner, without objection on the part of the prosecution. Under these circumstances I overruled the objection taken by Mr. Ribton, and received the whole entry in evidence, in order by means of the signature thereto to identify the prisoner as the person to whom a witness had already proved that he had paid the cheques, and ruled that the said entry might be read in evidence for that purpose only, and it was read to the jury accordingly.'

Metcalfe, for the prisoner.-The entry in the book was a receipt and required a stamp; as it had not one it was inadmissible in evidence. By the schedule to the Stamp Act, the 55 Geo. 3. c. 184, under the head "6 Receipt," is included "any

note, memorandum or writing whatsoever given to any person for or upon the payment of money whereby any sum of money, debt or demand," &c. "shall be expressed or acknowledged to have been paid, settled, balanced or otherwise discharged, or which shall import or signify any such acknowledgment." Though there are no words in terms stating, on the face of the entry, that money has been paid, yet the statements in the case as to the course of business shew that the entry purported to be a receipt and was intended to operate as a receipt. It need not be in a particular form to be a receipt Spawforth v. Alexander (1). It need not be signed-Wright v. Shawcross (2). In The Queen v. Boardman (3) a mere signature without any words "settled" or "paid" was held a receipt. On a recent trial, Cresswell, J. decided that forging counsel's signature to the fee marked on a brief was forging a receipt. Secondly, assuming it to be a receipt, it was improperly admitted in evidence, whether it was used for the purpose of proving the payment of the money or merely for identifying the prisoner. The signature, no doubt, might have been proved alone, but then the rest of the entry should not have been allowed to have been brought before the jury. The amended case shews that, notwithstanding the objection, the whole entry was read to the jury. It will be said that an unstamped receipt is admissible for a collateral purpose. That may be the case when the purpose is wholly unconnected with the object for which the receipt was given. But Matheson v. Ross (4) shews that if the document be intended to be used for a purpose in any way connected with the proof of the receipt of money, or if the proof of the payment be in any way material to the inquiry, it is inadmissible. There Lord Campbell remarks, "The criterion seems to me to be, not whether the party seeks to make use of it as a receipt, but whether it can be made use of to settle a question of payment of credit or debt litigated between the parties." In the same case, Lord Cottenham says, that most of the cases go to shew that if the matter to be proved be the payment of

(1) 2 Esp. 621.

(2) 2 B. & Ald. 501, n. (3) 2 Moo. & R. 147. (4) 2 H.L. Cas. 286.

money the stamp laws apply and compel the rejection of the document if offered in evidence, "whether it is for the direct purpose of proving payment as a discharge between debtor and creditor or whether it is for an indirect collateral purpose, as to shew some right in or advantage belonging to a party in consequence of such payment." The case of Matheson v. Ross is, again, recognized by Lord Cottenham. in Evans v. Prothero (5).

66

Parry, for the prosecution.-This entry was not a receipt, and, consequently, did not require a stamp. It certainly does not purport on its face to shew the receipt of money by the prisoner. It may mean that the prisoner had paid money instead of received it. The schedule of the Stamp Act says, that a note or memorandum, that expresses or acknowledges" payment of money is a receipt: those words clearly refer only to documents that on the face of them express that money has been paid. Here the entry does not express or acknowledge payment. Neither does it "import or signify" that it is a receipt. Parol evidence is not admissible to shew the document to be a receipt. The case does not find that this entry was meant to be a receipt. It may have merely been a memorandum made to refresh the memory of the clerk.

[MAULE, J.-In The Queen v. Snelling (6) it was recently held that a document might be an order for the payment of money though not on the face of it addressed to any one, if it could be shewn by evidence to whom it was addressed.]

[JERVIS, C.J.-On an indictment for forging a receipt, you might have given proof to shew this was a receipt.]

Whatever may be the rule as to indictment for forgery, the question here turns on the language of the Stamp Act, which requires that the document should express itself to be a receipt. In The Queen v. Harvey (7), a document used as a receipt was not held to be a receipt, because not expressed as a receipt. Secondly, though it be a receipt it was admissible for the purpose of proving the prisoner's identity.

(5) 2 Mac. & G. 319; s. c. 20 Law J. Rep. (N.S.) Chanc. 448.

(6) Ante, p. 8.

(7) Russ, & Ry. 227.

An unstamped document, it is conceded on the other side, may be used for a collateral purpose. It was not tendered for the purpose of proving the payment. Lord Campbell's language in Matheson v. Ross is wider than was necessary. The amended case shews clearly that the signature was all that was tendered. If the whole entry was read, it was solely with reference to the signature. The payment of the money had already been fully proved.

Metcalfe replied.

JERVIS, C.J.-I am of opinion that in this case the conviction was wrong. There are two points. The first is, whether the entry in the book was a receipt and required a stamp ; and secondly, if it required a stamp, whether it could be used as it was used, being unstamped. As to the first point, on consideration of the Stamp Act, I think that the document required a stamp. By the schedule to that act a document requires a stamp, not only which expresses or acknowledges receipt or payment of money, but also that which "imports or signifies" the same thing. The criminal law imposes a penalty for forging a receipt; and the word "receipt" in the criminal law means, I take it, a receipt to which, by the revenue laws, a stamp is required to be attached. In The King v. Hunter (8) it was held that a document which did not express or acknowledge, or of itself signify a receipt, might by apt averments in the indictment be made to signify it. It is found in this case that the habit of the house of Messrs. Shoolbred was, that if a person called for money on behalf of a creditor, and correctly named the amount of the debt, he received the sum due, and at the time of receiving it he was required to put his name into the book. Such being the course of business, it is difficult to say, that, if evidence be admissible in any case aliunde to shew an entry to be a receipt, this entry may not be made out by other evidence to import or signify a receipt. It seems to me that such evidence is admissible, and that the entry was a receipt, and required a stamp. Secondly, if it required a stamp, it is per

(8) 2 L. C.C. 711; s. c. 2 East, P.C. 928, 977.

fectly plain that it could not be read to prove the fact of the signature, when it also went to prove a matter directly in issue between the parties as to the receipt of the money. The whole instrument was read, though tendered for the particular purpose only. I think it was improperly read. It might, indeed, have very properly been used to establish the guilt of the prisoner. The right course would have been to have asked one witness whether he paid the money to the man who signed the book, and to have called another witness to prove that the signature in the book was made by the prisoner. That would have been admissible, just as if the clerk who paid the debt had said, the man I paid left this knife behind him, and some one had shewn that the knife belonged to the prisoner. That would have been using the writing merely as a means of establishing the identity of the party.

MAULE, J.-I agree that this conviction is wrong. It appears by the evidence that the document does, in fact, mean that the prisoner received a certain sum of money from a certain person on behalf of the Patent Wadding Company. It therefore is a receipt, and required a stamp. I further am of opinion that it was wrong to read it in evidence. The fact to be shewn by it was the fact of an acknowledgment on the part of the prisoner that he had received the money. The reading it to the jury proved no other fact. It was given in evidence for the purpose of proving the prisoner's handwriting to it, but it was meant that the jury should infer from it that the prisoner had received the sum of money mentioned in the indictment. That was clearly a matter which it was not competent to prove by this entry for want of a stamp. It was said that it was not wanted to prove that fact, but that it was wanted to prove that the prisoner was there at the time. It does not prove any such thing. It merely proves that the prisoner acknowledges the receipt of the money. You arrive at the fact of his being there from the acknowledgment, on the part of the prisoner, that he received the money. So that, in reality, it is not for a collateral purpose that the document is used. It is used, it is true, for a purpose ulterior to the receipt of the money, but for a purpose

in which the receipt of the money was involved. You might have got from the clerk who paid the money that the party to whom it was paid wrote this name, and then called another witness to prove that that name was written by the prisoner. That evidence would have been left to the jury without any impression having been made on their minds by the contents of the document. What was done was different: an unstamped receipt which bore materially against the prisoner was read to the jury. That, I think, vitiated the conviction.

WIGHTMAN, J.-There are two points in this case. During the argument I had some doubt whether the entry was a receipt, but considering it as explained by the evidence in the case, I am, on the whole, of opinion that it was a receipt, and consequently required a stamp. Then arises the second question, whether it could be used for the collateral purpose of shewing the identity of the prisoner with the party to whom the money was paid. I agree that it might have been so used, but I do not think that it ought to have been read in evidence before the jury. It is true that it was read only for the purpose of identifying the prisoner, but it had a material effect upon the question whether the prisoner had or had not received the money. It seems to me that it could not properly be read to the jury at all.

PLATT, B.-The entry, I think, must be taken to be a receipt, and liable to the stamp laws. Then was it proper to be received in evidence? The whole entry was tendered, though only for the purpose of identifying the prisoner, and notwithstanding the objection taken, was received. This was clearly improper. It was a mistake to allow the whole to be read. All that was necessary was to have proved that the prisoner made the signature, and the signature alone should have been read to the jury. It was proved aliunde that the man who made the signature received the money. WILLIAMS, J.-I am of the same opinion. I think the document was a receipt. The object of requiring the party to sign the book was to procure evidence to shew that the money had been received by the party to whom it was due. Secondly, I think that the entry being unstamped ought not to have been read to the jury. NEW SERIES, XXIII.-MAG. CAS.

Whatever it was read to prove, it certainly did prove a material fact against the prisoner that ought not to have been proved by an unstamped document. The fact of the writing the signature might have been proved in the way suggested.

1853.

Conviction reversed.

THE QUEEN v. THE INHABIT

Nov. 19. S ANTS OF LLANFAETHLY. Evidence-Subpoena duces tecum-Secondary Evidence of Written Document.

Where a witness served with a subpoena duces tecum to produce a written document either does not attend, or does attend and refuses to produce the document (not on the ground of privilege), the party seeking to avail himself of the document cannot give secondary evidence of its contents: the remedy is to punish the witness for a contempt.

On the trial of an appeal against an order of removal, the appellants, in order to prove a settlement by rating in a third parish, served a subpoena duces tecum on the person in whose possession the rate-book was supposed to be, and also gave the respondents a notice to produce the rate-book. The witness did not attend, and the rate-book was not produced:-Held, that parol evidence of a rating in the third parish was not admissible.

Upon an appeal against an order of two Magistrates of the county of Anglesey, dated the 28th of February 1853, for the removal of William Hughes and Mary his wife, and their four children, from the parish of Llanelian, in the county of Anglesey, to the parish of Llanfaethly, in the same county, the Sessions confirmed the order, subject to the opinion of the Court of Queen's Bench upon the following

CASE.

The pauper W. Hughes subsequent to his having acquired a settlement in the appellant parish, viz. in the month of November 1838, hired from Mr. T. Grey, as tenant from year to year, commencing from the 13th of November 1838, at the yearly rent of 14., a tenement, consisting of a separate and distinct dwelling-house and

F

land, at Gadfa, in the parish of Llandyfrydog, which he held, occupied, and resided on upon the said hiring for three years, and paid the said rent yearly for the

same.

The pauper W. Hughes also proved that he was rated to the poor-rate as tenant of the said tenement at 2s. 6d. each rate, and that during the first year of his tenancy he paid to Rowland Evans, one of the overseers of the poor of the said parish of Llandyfrydog, at different times, five or six poor-rates of 2s. 6d. each rate, which he believed were all the rates assessed on his tenement during the first year he occupied it. That R. Evans always produced the rate-book when he called upon him for his poor-rates. His health declined, and he was unable to pay his poor-rates after the first year. At the end of three years his rent was reduced to 107. a year, at which rent he occupied the same tenement until the 13th of November 1852, and annually paid his rent to the landlord. The pauper was rated to the poor-rates for the said tenement during the fourteen years he resided at Llandyfrydog, but he proved he paid no rates after the first year. R. Evans proved he was a rated inhabitant, and one of the overseers of the poor of Llandyfrydog for the years 1838 and 1839, and was still a rated inhabitant of that parish. That the pauper W. Hughes was rated to the poor-rates for the tenement he held at Gadfa, in that parish, at 2s. 6d. each rate, and that he used to call on him regularly for his poor-rates during the year he was overseer of the poor, and that the pauper paid him some of the poor-rates, but how many he could not say. That he delivered the rate-book at the end of the year to Mr. Robert Prichard, of Llwydiarth Esgob, solicitor, one of the principal rated inhabitants of the parish of Llandyfrydog. That his co-overseer had since died. The said R. Evans, the surviving overseer of the poor for 1838 and part of 1839, and John Owen, of Pen-y-Graigwen, one of the overseers who succeeded R. Evans, and also one of the overseers of the poor of Llandyfrydog for the years 1852 and 1853, and also the said R. Prichard and Hugh Jones, who are the present churchwardens of the said parish of Llandyfrydog, were regularly served with subpænas duces tecum to produce on

the hearing of the said appeal all and every the rate-books of the said parish of Llandyfrydog, and all and every the poor-rate assessments, bills, rates or levies for the same parish for the year 1838, and from thence for each and every year up to and including the year 1852. Notice was also served on the churchwardens of the said respondent parish of Llanelian to produce the same rate-books, assessments, bills, rates and levies of the said parish of Llandyfrydog for the same years. The said John Owen, of Pen-y-Graigwen, proved that he, during the year he was overseer, collected the rates in the end of the parish where the pauper had lived; and, on his cross-examination, he stated that he delivered the poor-rate book to his co-overseer, John Owen, of Ynysgoed, who collected the rates in the other end of the parish. He also proved that the lastnamed John Owen was alive. The said Robert Prichard did not appear at the Sessions in pursuance of the subpoena ducestecum served upon him, but the other parish officers of Llandyfrydog did appear, in pursuance of the subpoenas duces tecum served on them. They were sworn and examined, and pressed to produce the ratebooks of the parish of Llandyfrydog, but they did not produce any of the rate-books of that parish.

And

The question for the opinion of the Court was, whether, under the circumstances before stated, the pauper gained a settlement in the parish of Llandyfrydog by renting a tenement or by payment of rates. as the parish officers of Llandyfrydog had been served with subpoenas duces tecum to produce the poor-rates of that parish ast before stated, and they not having produced the same, whether the parol evidence of the pauper and of the said Rowland Evans, the overseer of the poor of Llandyfrydog, was sufficient evidence of rating and payment to establish a settlement by rates in that parish. If the Court should be of opinion that, under the circumstances stated, the pauper gained a settlement in Llandyfrydog, either by renting a tenement or by payment of rates, the order of Sessions was to be quashed; if not, to be confirmed.

Morgan Lloyd, in support of the order of Sessions.-The only question is, whether there was admissible evidence that the