tract. (1) A written agreement, for which an action of trover is Unstamped writing, for brought, and which is produced at the trial by the defendant, collateral is not inadmissible in evidence, on account of the want of a purposes. stamp. (2) agreement. An unstamped part of an agreement is admissible on the part Unstamped of the plaintiff, as secondary evidence of the agreement, after proof of notice to the defendant to produce the stamped part which is in his possession (3): and there can be no difference in this respect, whether the plaintiff has specially declared upon the agreement, or merely offers it as evidence in the course of the cause. On a question of settlement by hiring and service, although a general hiring cannot be presumed from the mere fact of service, if the service has been performed under written articles of agreement, which are not admissible in evidence for the want of a proper stamp, yet, where the question is, whether the service commenced after the expiration of the articles, they may be properly inspected for the purpose of ascertaining this collateral fact, whether they would apply to the subsequent service. (4) paper. In an action for the non-delivery of goods, if the contract is Unstamped proved by parol evidence, and it should appear that the parties made a contract on unstamped paper, the Court may inspect the instrument, to see whether it applies to the goods, which are the subject of the action; and if they are not included in the contract, the parol evidence would be properly admitted. (5) So, in an action for money lent, where the plaintiff proved, that he had advanced the money to the defendant, who gave him a note for the amount on unstamped paper, and the defence was, that he had been induced to give the note in a state of intoxication, without having received any part of the money, Lord Ellenborough C. J. held, that the note might be inspected by the (1) Hedges's case, 28 Howell St. Tr. 1344. (2) Scott v. Jones, 4 Taunt. 365. (3) Garnons v. Swift, 1 Taunt. 507. Waller v. Horsfall, 1 Campb. 501. Munn v. Godbold, 3 Bing. 294. (4) R. v. Pendleton, 15 East, 449, Unstamped writing, for collateral pur poses. In prosecutions for forgery. 1. Pooley's case. 1st trial. jury, as a contemporary writing, to prove or disprove the fraud imputed to the plaintiff (1). A paper, purporting to be a bill of exchange or promissory note, may be given in evidence, though unstamped, to support an indictment for forgery, or for uttering with a knowledge of the forgery; (2) for the stamp acts being revenue laws, and not intended to affect the crime of forgery, cannot alter the law re specting it; the stamp is not, properly speaking, any part of the instrument, but merely a mark impressed on the paper, to denote the payment of a duty, and is collateral to the instrument itself. (3) And if a person were to be sued for a penalty, for having negotiated an instrument without a stamp, there is no doubt but that the unstamped instrument might be given in evidence, notwithstanding the general prohibitory words of the stamp acts. (4) But where the instrument is offered in evidence, as a valid available legal instrument, and is not such from the want of a stamp, it cannot be admitted, whether in a criminal or civil suit. In the case of King v. Pooley (5) the prisoner was indicted under the statute 7 G. 3. c. 50. s. 1., which makes it a capital felony for any person, employed in receiving letters, to secrete any letter containing a bank note, or any warrant, or draft, &c. for the payment of money. It appeared at the trial, that the draft, contained in the letter, which the prisoner had secreted, was drawn above ten miles from the banking-house; the prisoner's counsel then objected, that, as the draft was on unstamped paper, it was not a valid draft for the payment of money, and therefore not within the statute on which the prisoner was indicted; and they founded this objection on the statute 31 G. 3. c. 25., the fourth section of which exempts from stamps only such orders for the payment of money as are Unstamped writing, for drawn on a banker residing within ten miles of the place where collateral the order is made; and the nineteenth section provides that no purposes. bill, note, draft, &c. shall be pleaded or given in evidence in any court, or admitted in any court to be good, useful, or available in law or equity, unless they are written on paper duly stamped. The evidence was admitted; the prisoner convicted: and the point reserved. The case was afterwards argued before the Judges in the Exchequer chamber; when the objection, taken on the part of the prisoner, was, first, that which has been stated, namely,, that the draft in question was not a draft for the payment of money, within the meaning of the stat. 7 G. 3. c. 50. s. 1.; and, secondly, that the indictment, which averred, that the draft was in force at the time of the secreting, had not been proved, as from the want of a stamp the draft had never been available. All the judges held that the conviction was wrong; on the ground that the draft, not being stamped, was of no value and not available, and therefore not a draft within the act. The prisoner was afterwards tried on the second section of the 2d trial. same act, which makes it a capital offence for any person to rob any mail of a letter or packet, or to steal or take any letter from any mail, or from any place for the receipt of letters, &c. (1) It was objected at the second trial, that the draft, before mentioned, being on unstamped paper, could not be received in evidence as a medium to show that the prisoner had stolen the letter; but the Court overruled the objection, being of opinion, that the draft, though unstamped, might be admitted in evidence for collateral purposes, though not for the purpose of recovering the money mentioned in it, and the evidence was accordingly received. Here the paper was not offered in evidence, as it was on the former trial, as a draft for the payment of money, but merely as a paper contained in the letter, and the fact of the prisoner having this paper in his possession was evidence against him of his having stolen the letter in which it was contained. An objection, similar to that which was taken on the former 2. Gillson's (1) 3 Bos. & Pull. 315. And this part of the case is reported in 1 East, Pl. C., casc. Unstamped writing, for collateral purposes. 8. Hall's case. Stamp presumed, when. trial in the last case, was again taken in the case of The King v. Gillson. (1) The indictment was for feloniously setting fire to a certain house with intent to defraud an insurance company: at the trial, a policy of insurance was given in evidence on the part of the prosecution, by which the prisoner's goods, in a house there described, were insured against fire, and upon this policy a memorandum was indorsed, stating, that the goods insured had been removed from the house described in the policy, to another house mentioned in the memorandum, in which last-mentioned house the prisoner was charged with having committed the felony. The policy was properly stamped, but the memorandum had no stamp ; and the objection taken for the prisoner was, that, in support of the charge, it was essentially necessary to show, there subsisted a legally effec tive contract, and that, by the express provision of the stamp-acts, the memorandum in question, not being stamped, could not be given in evidence, or be good or available in any manner whatever; and a distinction was drawn between this case and that above mentioned, where an unstamped forged instrument was admitted in evidence against the party charged with having forged it, or with uttering it knowing it to be forged. The point was reserved, and argued in the Exchequer Chamber: and judgment was afterwards given at the Old Bailey, that the prisoner should be discharged. On a prosecution for embezzling notes, which the prisoner had received as clerk for his employer, a written paper given by the prisoner as a receipt of the notes in question, and purporting to be such, is not admissible as a receipt, unless duly stamped. (2) A regular stamp may be presumed in certain cases. If an agreement is in the possession of a party to the suit, who refuses to produce it after a notice, the other party may give in evidence a copy of the agreement, without proving that the In possession original was duly stamped; the party who has the original in his possession may prove the negative. (3) If an instrument, of adverse party. (1) 1 Taunt. 25. Russ. & Ry. Cr. C. R. 138. S. C. Five Judges were for the reception of the evidence: six Judges contra. (2) R. v. Hall, Ry. & Mo. Cr. C. R. 67. (3) Crisp v. Anderson, 1 Starkie, N. P. C. 35. ment. which ought to be stamped, is proved to have been lost, parol Lost instruevidence of its contents may be admitted without proof of the stamp being regular, where it can be presumed, from the circum stances of the case, that the instrument was duly stamped. (1) In the latest case upon this point, on a question of settlement between two parishes (2) it appeared, that an indenture of apprenticeship, which had been regularly executed thirty years. before, was delivered to the apprentice at the end of the term, and lost; that a premium had been paid with the apprentice; and further, that the parish, in which he had served under the indenture, had for many years treated him as one of their parishioners; on the other side, it was proved by the deputyregister and comptroller of the apprentice duties, that it did not appear that such an indenture had been stamped with the premium stamp, or enrolled, from the time of the date to the time of the trial of the appeal; but the Court of King's Bench were of opinion, that the Court below were right in presuming, that the indenture had been properly stamped. "The question before the Justices," said Lord Ellenborough, "was, whether the presumption, that all was rightly done after the lapse of so many years, was sufficiently rebutted by the negative evidence of the officer; they thought not, and we cannot say that they have done wrong; for the presumption of law is to be favored, and against the negative evidence they may have set the possibility of an irregularity in the returns made to the office." stamp, how If an action cannot be brought upon an agreement, until it is Defect of stamped, it must be stamped before the commencement of the cured. action: but if it is an agreement which may be stamped on the payment of a penalty, then it may be stamped during the action. (3) In some cases the legislature has declared, that the paper cannot be stamped after it has been written, as in stat. 35 G. 3. c. 63. s. 14. concerning sea-insurances (4,) and in stat. 31 G. 3. c. 25. s. 19. concerning bills of exchange, pro (1) R. v. East Knoyle, Burr. set. Case, 151. 1 Bott. 547. S. C. R. v. Badby, 1 Bott. 549. S. P. (2) R. v. Long Buckby, 7 East, 45. (3) 9 Ves. 252. 11 Ves. 595. R. v. Bishop of Chester, 8 Mod. 365. 1 (4) Rodereck v. Hovil, 3 Campb. 103. |