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cate 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 de novo (2); 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 certificate of registry, to all intents and purposes null and void; it took no effect whatever from its first delivery; and the stamp impressed upon it was wholly inoperative. This defect arose not from intention, but from mistake. The instrument, as first executed, was not what the parties meant to execute; and it was not in the state in which it was at first intended to be, till it was altered. This is not the case of substituting a new and second contract, in the place of a preceding effectual one, upon a change of intention in the parties; but merely making the contract what it was originally intended to have been; and in such a case, where the instrument upon its first execution was void to all intents and purposes, where its insufficiency arose from a mere mistake, where in consequence of that mistake it was not in the state in which it was intended to have been when it was so executed, and where upon its second execution it is only put into that state which was originally intended, we think it is not going beyond the fair spirit of the stamplaws to hold, that upon such second execution, being the first which was effectually operative, a new stamp was not requisite." So, the mistake of an agent, in declaring the interest in the margin of a policy to be on a ship by a

(2) Cole and others, Assignees of Doyle, v. Parkin, 12 East 471.

wrong name, may be rectified by inserting the true name, without a fresh stamp (1).

dence for

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Written instruments have been admitted in evidence: Where an unstamped without a stamp, in certain cases, where they were pro- instrument duced merely to prove something collateral, and not for may be evithe purpose of being enforced between the parties, and collateral where it was not material to consider, whether the instru- purposes. ments 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 (1), under the stat. 2 G. 2. c. 24. s. 7., 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. So, an unstamped receipt may be shown to the witness, as a memorandum, in order to refresh his recollection of a fact there stated (2). So, the unstamped part of an agreement is admissible, on the part 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. So, in the case of a parish-settlement, although

(1) Robinson v. Touray, 1 Maule & Selw. 217. Sawtell v. Loudon, 5 Taunt. 359.

(2) Peake's N. P. C. 57.

(2) Rambert v. Cohen, 4 Esp. N.
P. C. 213. Jacob v. Lindsay, 1
East 460. See ante, p. 209. 386.
(3) Garnons v. Swift, 1 Taunt,
Waller v. Horsfall, 1 Campb.

(1) Dover v. Maestaer, 5 Esp. N. 507 P. C. 92.

501.

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a general hiring cannot be presumed from the mere fact of service, where 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 inspected for the purpose of ascertaining whether they would apply to the subsequent service (4). And, upon the same principle, it should seem, in an action for the non-delivery of goods, if the contract is 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 (1). So, a written agreement may be recovered in an action of trover, though unstamped (2); and, in such an action, it will not be necessary to give notice to the other party to produce the agreement (3). 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 jury, as a cotemporary writing, to prove or disprove the fraud imputed to the plaintiff (4).

A paper, purporting to be a bill of exchange or promis. sory note, may be given in evidence, though unstamped, to support an indictment for forgery, or for uttering with a knowledge of the forgery (5); for, "the stamp acts being revenue laws, and not intended to affect the crime of for

(4) R. v. Pendleton, 15 East 449. 1 Leach. Cr. C. 292., 2 East P. C. 155.

955. S. C. Lee's case, 1784, 1 Leach Cr. C. 293. n. (a). Morton's case, 1795, 2 East P. C. 955. Reculists' case, 1796, 2 Leach Cr. C. 811. Davies's case, 1796, 2 East P. C. 956. See Whitwell v. Dimsdale, Peake N. P. C. 168.

gery, cannot alter the law respecting 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: and as to the statute enacting (6)," that no promissory note, bill of exchange, &c., not stamped, as therein directed, shall be pleaded or given in evidence in any court, or admitted in any court to be good, or available in law or equity," the legislature thereby meant only to prevent their being given in evidence, when they were proceeded upon, to recover the value of the money thereby secured. It is cer*tain that no holder of such an instrument as the present could, if it had been genuine, have founded an action upon it, and given it in evidence as a promissory note; but it is equally certain, that it might have been given in evidence on other occasions, as, for instance, if a person negotiating it were to be sued for the penalty inflicted upon the offence of negotiating such an instrument unstamped, there is no doubt, but that it might be given in evidence; and this instance shows most clearly, that it was properly received in evidence on the trial of this indictment, not withstanding the seeming prohibitory words in the statutes (1)."

In the case of the King v. Pooley (2), 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 banknote, 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 order for the payment of money, and therefore not within the statute on which the prisoner was indicted; and they founded this objection on the sta

(6) St. 31. G. 3. c. 25. s. 19.
(1) By Grose, J. in delivering the

opinion of the judges in Reculists?
case, 2 Leach Cr. Č. 813.

(2) 3 Bos. & Pull. 311.

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tute 31 G. 3. c. 25., the fourth section of which exempts: from stamps only such orders for the payment of money as are drawn on a banker residing within ten miles of the place where the order is made, and the nineteenth section provides, that no 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. This point was reserved at the trial, and 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. The opinion of the Judges was not publicly declared but the prisoner received a pardon for the of fence charged in the indictment; and he was afterwards. tried (1) on the second section of the 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. 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 evi

:

(1) 3 Bos. & Pull. 315. And this part of the case is reported in 1 East Pl, Cr., addenda, xvii.