Alteration of instrument. 1. Alteration as to time of sailing. 2. Alteration insured. In the case of Kensington v. Inglis, (1) where the policy was "on goods and specie on board of ship or ships sailing between the 1st of October, 1799, and the 1st of June, 1800, being the property which should first sail to a certain amount, and upon the vessels carrying the goods," and a memorandum was written on the policy and subscribed by the defendant on the 11th of June, 1800, before any notice of the determination of the risk had been received, by which memorandum it was agreed to extend the time of sailing to the 1st of August following, the Court of King's Bench in this case held, that the memorandum did not require a stamp; for although the time of sailing was extended, yet no new subject of insurance was introduced by the memorandum, but the object insured continued the same. In another case, (2) which occurred upon the same clause, as to property where the policy was originally "on ship and outfit," from London to the South Seas, but, after the sailing of the ship, was altered by consent of the underwriters, and declared to be "on the ship and goods," instead of ship and outfit, the Court determined, that, as the outfit, originally insured, was essentially dif ferent from goods, which were afterwards made the subject of insurance, the policy in its altered state required an additional stamp. The question is," said Lord Ellenborough C. J., in delivering the judgment of the Court, "whether that part of the provision, which requires, that the thing insured shall remain the property of the same person,' has been in this case complied The words, the thing insured shall remain the property,' appear properly to require and apply to one identical and continued subject-matter of insurance; such subject-matter all along remaining the property of the same proprietor, and to be ill suited to a case like the present, where the thing last insured is not only in fact, but in name and kind, as a specific subject of insurance, essentially different from the thing first insured, and which begins also to have an existence at a different and much later period than the other, and when the thing first insured with. (1) 8 East, 273. son, 4 Taunt. 169. den, 4 Campb. 107. ' Hubbard v. Jack (2) Hill v. Patten, 8 East, 373. 9 East, 351. Hubbard v. Jackson, 4 Taunt. 169. The cases on this subject are collected in Parke's Treatise on Insurances, p. 46., last edit. scarcely or in a small degree only, remains or continues to exist Alteration of at all." instrument. to warranty of ness. A memorandum indorsed upon a policy waiving the war- 8. Alteration as ranty of sea-worthiness, does not require at new stamp. (1) sea-worthiAnd Mr. Justice Bayley compared the case to that of a warranty to sail within a certain time, which may be altered by an unstamped memorandum, even after the period when the condition has terminated, without affecting the continuance of the policy. alteration. Where a policy has been executed in the common printed 4. Material form, without any specific subject of insurance expressed in writing, and the subject-matter is afterwards inserted, the assured cannot recover against those underwriters who have not signed the policy after the addition; for a material alteration is introduced with respect to such of the underwriters as have not assented. (2) It has been determined by several cases, that a material alteration in a material part of a policy of insurance, made by one of the parties interested, without the consent of all parties, destroys the policy as to those underwriters who have not assented to the alteration. (3) Even if all the parties assent to an alteration, and the alteration is such as to make the policy void for want of a new stamp, the policy cannot be enforced in its original form. (4) This is a general principle, and applies equally to bills of exchange, promissory notes, and other negotiable instruments. An immaterial alteration in a policy of insurance, made by the party insured, (as, an alteration by the insertion of words, which add nothing to what was expressed before in substance, and do not in any degree vary the legal effect of the policy (5) will not vacate the policy, even as against a party who refused his consent to the alteration. Where an alteration is made in an instrument, with the con- Alterations to sent of all parties, in order to correct a mistake, and to make takes. (1) Weir v. Aberdeen, 2 Barn. & Ald 325. (2) Langhorn v. Cologon, 4 Taunt. 330. (3) Fairlie v. Christie, 7 Taunt. 416. Holt, N. P. C 331. S. C. Campbell v. (4) French v. Patten, 9 East, 351. correct mis Bill of exchange. Bill. the instrument consistent with the original intention of the parties, there it has been held, that a fresh stamp is not necessary. Thus in the case of Kershaw v. Cox, (1) where a bill had been drawn payable to the defendant, but not payable to order, the defendant on the day after the bill was drawn, indorsed it over to the plaintiff, without adverting to the omission of the words "or order;" on the same day the plaintiff returned it to the defendant, to get the omission rectified, and the drawer then inserted the words; here, there was strong evidence to show, that the omission was by mistake, for the bill was intended to be negotiable, and as such immediately indorsed, as if it had been drawn payable to order, and as soon as the omission was discovered, it was rectified by the proper parties: the learned Judge, therefore, who tried the cause, left it to the jury to consider, whether the words, afterwards added, had been originally intended to have been inserted, but were omitted by mistake; and the jury finding this to be the case, it was ruled, that a fresh stamp was not required. The point was afterwards brought before the Court of King's Bench, on a motion to enter a nonsuit, and the alteration was adjudged to be allowable under the stamp acts; having been made merely for the purpose of rectifying a mistake in drawing the bill contrary to the intention of the parties. In another case, which occurs upon this subject, where an action was brought against the defendant as acceptor of a bill of exchange, (2) it appeared, that the defendant and another person being indebted to the plaintiff, agreed to give him a bill of exchange, to be drawn by the one and accepted by the other (the defendant:) instead of this, they sent him a promissory note, made by the one and indorsed by the other, which the plaintiff immediately returned, that it might be altered into a bill of exchange according to the agreement, and the alteration was accordingly made; an objection was taken, on the ground that the instrument required a fresh stamp; but Lord Ellenborough, C. J., ruled, that the stamp impressed was sufficient to render (1) 3 Esp. N. P. C. 246. before Le Blanc J., cited 10 East, 435., and 15 East, 417. Jacobs v. Hart, 2 Star 1 Maule & Selw. 217. Robinson v. Tobin, 1 Starkie, N. P. C. 336. (2) Webber v. Maddocks, 3 Campb. the instrument available, since it had not been negotiated as a promissory note, and the alteration might be treated as the correction of a mistake, according to the terms of the original agreement. The case of Cole v. Parkin (1) affords another instance of the Bill of sale of ship. rectification of a mistake, in a bill of sale of a ship. The bill of sale, in reciting the certificate of registry, stated Guernsey as the port where the certificate was granted, instead of Weymouth, and in this state was executed; but the mistake, being afterwards discovered, was rectified with the consent of all parties, and the deed delivered afresh: the question was, whether this second delivery made a new stamp necessary. Lord Ellenborough C. J., in delivering the judgment of the Court, referred to statute 26 G. 3. c. 60. s. 17., which enacts, that a bill of sale of a registered ship, which does not truly and accurately recite the certificate of registry in words at length, shall be utterly null and void to all intents and purposes. "This bill of sale, therefore, when first executed, was, from the mistake in the recital of the (1) 12 East, 471. Unstamped writing, for collateral purposes. Unstamped instrument, for collateral purposes. Unstamped receipt. declaring the interest in the margin of a policy to be on a ship by a wrong name, may be rectified by inserting the true name, without a fresh stamp. (1) Written instruments have been admitted in evidence without a stamp in certain cases, when produced merely to prove something collateral, and not for the purpose of being enforced between the parties, and when it was not material to consider whether the instruments were good or available in law. In the case of Holland q. t. v. Duffin, (2) which was an action to recover several sums of money, forfeited by insuring tickets in the lottery, contrary to the statute 22 G. 3. c. 47. s. 13., Lord Kenyon held, that an instrument, purporting to be a policy of insurance, might be given in evidence, though not stamped as a policy; for such a contract is declared by the act to be illegal and void, and could not have been intended by the legislature as an object of taxation. And in an action of debt for bribery at an election under statute 2 G. 2. c. 24. s. 7. (3) Lord Ellenborough C. J. held that an unstamped promissory note payable to the defendant, which a witness said he had given for the re-payment of money, received by him as a voter from the defendant (one of the candidates,) might be admitted as evidence of the transaction, to corroborate the testimony of the witness. An unstamped receipt may be shown to a witness as a memoraudum, in order to refresh his recollection of a fact there stated; (4) or for the purpose of confirming his evidence, in case the receipt itself, if stamped, would be admissible as confirmation. (5) An unstamped contract, made between commissioners of the navy and other persons, containing also a direction by the commissioners to their clerks, in consequence of the contract, to issue certificates in a certain form, is evidence of such a direction having been given, though not evidence of the con (1) Robinson v Touray, 1 Maule (4) Rambert v. Cohen, Esp. N. P. & Selw. 217. Sawtell v. Loudon, 5 (2) Peake, N. P. C. 57. (3) Dover v. Maestaer, 5 Esp. N. P. C. 92. And see the point in Pooley's 460. (5) See Dover v. Maestaer, 5 Esp. N. P. C. 92. |