Corporation Books.-Parish Registers.

205

M. & M. 419, cited ante, p. 52. Marriage v. Lawrence, 3 B. & A. 142; London v. Lynn, 1 H. Bl. 214, n.; or a right to appoint a curate as against the vicar; Att.-Gen. v. Warwick, 4 Russ. 222; or an exclusive right of trading. Davies v. Morgan, 1 C. & J. 590-3. Where plaintiff sued a corporation (of which he was an alderman) on a bond, and defendants pleaded: 1, Fraud; 2, That the bond was irregularly executed contrary to a bye-law, Parke, B., admitted the books of the corporation to prove the byelaw, but rejected them as evidence for the defendants of a private transaction between the plaintiff and the corporation in proof of the fraud. Holdsworth v. Dartmouth, Mayor of, Exeter Sum. Ass. 1838, MS.

Effect of Parish Registers, &c.

The registers of baptisms, marriages, and burials, preserved in churches, are good evidence of the facts which it is the duty of the officiating minister to record in them. B. N. P. 247; Doe d. Warren v. Bray, 8 B. & C. 816. Where it appeared that the practice was to make entries in the general parish register, once in three months, out of a day-book in which the entries were made immediately after the baptism or on the same morning; and in the day-book after a particular entry, the letters B. B. (signifying base-born) were inserted, which were omitted in the register, it was held that evidence of the day-book could not be received: for there could not be two parish registers. May v. May, 2 Stra. 1073. An entry by the minister of a baptism which took place before he became minister, and of which he received information from the parish clerk, is not admissible; nor is the private memorandum of the fact made by the clerk, who was present at the baptism. Doe d. Warren v. Bray, 8 B. & C. 813. But see Doe d. France v. Andrews, 15 Q. B. 756, ante, p. 118. As to proof of the identity of the parties, vide ante, p. 118.

The books of Fleet, King's Bench, May Fair, and Mint marriages are not evidence to prove a marriage, for they were not made by public authority. They were, in fact, only private memoranda kept by ministers who officiated at clandestine marriages contrary to the canons of the church. See Burn on Fleet Registers, ch. 6, and 3 & 4 Vict. c. 92, ss. 6, 20. Such a register, however, may, if signed by a party, be equivalent to a declaration by such party; and, as such, admissible where hearsay is admissible. Lloyd v. Passingham, 16 Ves. 59. A register of ceremonies performed at a dissenters' meetinghouse is not admissible in evidence, for it is not a public document. Newham v. Raithby, 1 Phill. Rep. 315; Ex pte. Taylor, Î J. & W. 483; and the stat. 6 & 7 Will. 4, c. 85, ante, p. 119, would appear not to have made any difference in this respect; for the register appointed by that Act is to be kept by the registrar and not at the meeting-house. Such of these registers, however, as have been deposited with the Registrar-General under 3 & 4 Vict. c. 92, and 21 & 22 Vict. c. 25, ante, pp. 118, 119, are admissible in evidence after notice. See 3 & 4 Vict. c. 92, ss. 19, et seq.

An attempt is sometimes made to use the register for the purpose of proving facts stated therein in addition to the main fact of baptism, marriage, or burial, as the case may be. There has been a good deal of discussion as to how far this can be done. In a criminal proceeding against a person for falsely swearing that he was 21 years of age, Ld. Tenterden refused to allow that part of a register of baptisms which stated the day upon which the defendant was born to be read: R. v. Clapham, 4 C. & P. 29; and in Wihen v. Law, 3 Stark. 63, and Burghart v. Angerstein, 6 C. & P. 690, the entry in a register of baptisms of the day of the defendant's birth was rejected as a proof of a plea of infancy. In R. v. North Petherton, 5 B. & C.

508, a copy of a register of baptism was put in to show that an infant was born in a certain parish, but Bayley, J., rejected the evidence; saying, however, that if it could be shown that the child was very young at the time of baptism, the register would afford presumptive evidence of its having been born in the parish where it was baptised. See R. v. S. Katharine, 5 B. & Ad. 970, n. Upon an issue as to the legitimacy of a child, a baptismal register which described it as the illegitimate son of E. C. was admitted by Alderson, J., though with the observation that it was entitled to little weight. Cope v. Cope, 1 M. & Rob. 269. A register of marriage is evidence of the time of the marriage. Doe d. Wollaston v. Barnes, Id. 386.

As to the effect of the registers of births, marriages, and deaths under 6 & 7 Will. 4, cc. 85, 86, and 37 & 38 Vict. c. 88, see ante, pp. 119, 120. As to the effect of registers of births, marriages, and deaths in Scotland, Ireland, the Colonies, at sea and abroad, vide ante, pp. 120, et seq.

Effect of Ship's Register.

A ship's register, describing her to be British built, was held to be no evidence of that fact as against third persons. Reusse v. Meyers, 3 Camp. 475. Nor was it admitted as evidence of ownership or interest, except as against the persons who made the affidavit or declaration. Fraser v. Hopkins, 2 Taunt. 5; Pirie v. Anderson, 4 Taunt. 652; Cooper v. South, Id. 803. But, since the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), s. 107, cited ante, p. 122, such register is prima facie evidence of all the matters contained in it or certified by the registrar in his certificate, as, for instance, that the ship is British, R. v. Bjornsen, Leigh & Cave, 545; 34 L. J., M. C. 180; or that the defendant is owner; Hibbs v. Ross, L. R., 1 Q. B. 534. See also the Merchant Shipping Amendment Act, 1855, s. 15, cited ante, p. 123.

Effect of Awards.

An award, regularly made by an arbitrator to whom matters in difference are referred, is conclusive in an action at law between the parties to the reference upon all matters inquired into within the submission. 1 Phill. Ev. 360; Campbell v. Twemlow, 1 Price, 81. Thus, where a covenantor and a covenantee submitted the amount of damages of a breach of covenant to arbitration, the award was held conclusive of the amount in an action on the covenant to which defendants pleaded non est factum. Whitehead v. Tattersall, 1 Ad. & E. 491. See also Cummings v. Heard, L. R., 4 Q. B. 669. So, where in an action of ejectment it appeared that the lessor of the plaintiff and the defendant had before referred their right to the land to an arbitrator, who had awarded in favour of the lessor, it was held that the award precluded the defendant from disputing the lessor's title. Doe d. Morris v. Rosser, 3 East, 11. But where, on a reference by landlord and tenant, the arbitrator awarded that a stack of hay, left upon the premises by the tenant, should be delivered up by him to the landford upon the tenant being paid a certain sum, it was held that the property in the hay did not pass to the landlord on his tender of the money by mere force of the award. Hunter v. Rice, 15 East, 100. Where the commissioners under an inclosure act were directed to make an award respecting the boundaries of a parish, and to advertise a description of the boundaries so fixed, and the boundaries so fixed were to be inserted in their award, and to be binding, final, and conclusive, but the boundaries mentioned in the award varied from those which had been advertised; it was held that, the commissioners not having pursued their

Awards.

207 authority, their award was not binding as to the boundaries. R. v. Washbrook, 4 B. & C. 732; but see the remedial acts, ante, p. 143.

It has been repeatedly decided that corruption or misconduct of the arbitrators, including the case of an award made ex parte, does not invalidate the award, in any case, at least, in which an application might have been successfully made to the court to set it aside; vide post, Action on award, Defence.

An award made on a reference of all matters in difference between the parties will not be a bar with regard to any demand which was not in difference between them at the time of the submission, nor referred by them to the arbitrators. Ravee v. Farmer, 4 T. R. 146; Smith v. Johnson, 15 East, 213. And awards under inclosure acts are so far on the same footing as private submissions, that if the award goes beyond the powers of the commissioners, it is void pro tanto; and if it omits to decide on anything within the scope of the submission, the interest of parties remains in statu quo. Per Best, C. J., Thorpe v. Cooper, 5 Bing. 129. But, where an action by a person for his salary, and also for damages for dismissal from service, was referred, and the plaintiff gave evidence of dismissal, but claimed no damages for it before the arbitrator, who only awarded the amount of salary: held that the award was nevertheless a bar to a second action for damages for the dismissal. Dunn v. Murray, 9 B. & C. 780. See Hadley v. Green, 2 C. & J. 374. A. filed a bill against B. for the infringement of a patent, and the arbitrator found that the patent was not illegal and void it was held that, in a subsequent action by A. against B. for infringement of the same patent, this award did not estop B. from upsetting the defence that A. was not the first and true inventor. Newall v. Elliott, 1 H. & C. 797; 32 L. J., Ex. 120. The judgment of an usurped jurisdiction between parties is not admissible as an award without proof of mutual submission. Rogers v. Wood, 2 B. & Ad. 245.

An award made on ejectment, brought by A. against a mortgagor after mortgage, is not evidence for A. on an ejectment brought by the mortgagee against him. Doe d. Smith v. Webber, 1 Ad. & E. 119. In a suit for injury to A.'s reversionary interest in a close whereof F. was tenant, in which the defendant set up the right of G., and denied that of A., it was held that the plaintiff could not put in, as evidence of such right, an award made in a former action between F. as plaintiff and G. as defendant, in which the same right was in question, and in which G. had pleaded not guilty only, and afterwards paid damages awarded against him; for as it was not shown that A. was substantially the plaintiff in the first action, or that F. brought it by A.'s authority, a verdict or award against F. could not have prejudiced A., and therefore could not be available as evidence for A. Wenham, Ly., v. Mackenzie, 5 E. & B. 447; 25 L. J., Q. B. 44. But where the right of a watercourse and a question of boundary were referred by a submission between A. and his tenant B. on the one side, and C., a neighbouring landowner, on the other, the award was held admissible evidence for C. on both points in a subsequent action by him against B.; although B. had, in the mean time, become tenant of the same land to another landlord, under whom he now justified, and who was not shown to be in privity with A. Breton v. Knight, Winton Sum. Ass. 1837, per Tindal, C. J., confirmed in Banc on motion for a new trial, MS. On an issue between plaintiff and an execution creditor of B., whether growing crops belonged to B., an award made between plaintiff and B. touching the crops, just before the execution, was held admissible as against the defendant. Thorpe v. Eyre, 1 Ad. & E. 926. In an action on a policy Ld. Kenyon admitted evidence that the defendant had agreed to be bound by an award to which other persons were

parties, and that the award was in favour of the plaintiff. Kingston v. Phelps, Peake, 228.

That an award is not evidence, as between strangers, even in a matter in which hearsay is admissible, see Evans v. Rees, 10 Ad. & E. 151, cited ante, p. 48; Wenham, Ly., v. Mackenzie, ante, p. 207. So an award against a principal debtor is not evidence in an action against his surety. Ex pte. Young, 17 Ch. D. 668, C. A.

The award of arbitrators or an umpire upon a claim for compensation under the Land Clauses Consolidation Act, 1845, has the same effect as the verdict of a jury in an inquisition before the sheriff under that act (ante, pp. 186, 187), and is conclusive as to the amount, but not as to the right to compensation. In re Newbold & Metropolitan Ry. Co., 14 C. B., N. S. 405: Beckett v. Midland Ry. Co., L. R., 1 C. P. 241; R. v. Cambrian Ry. Co., L. R., 4 Q. B. 320. So in the case of an award under the Artizans' and Labourers' Dwellings and Improvement Act, 1875, 38 & 39 Vict. c. 36. Wilkins v. Mayor of Birmingham, 25 Ch. D. 78. Where the award is given for one entire sum, if any part of the sum is given contrary to law, the whole is invalidated. Beckett v. Midland Ry. Co. supra.

Of the effect of awards under inclosure acts, see further, ante, p. 143. Where an award under seal directs the payment of money, the award does not create a specialty debt, although the submission was also under seal. Talbot v. Shrewsbury, El. of, L. R., 16 Eq. 26.

STAMPS.

The subject of stamps, though important and useful at Nisi Prius, is one that cannot be treated of at length in a work of this kind. The following summary only professes to contain some of the principal heads, and a selection of the most useful decisions on the acts. Nearly all the prior Stamp Acts were repealed by the Inland Revenue Repeal Act, 1870 (33 & 34 Vict. c. 99), and their provisions embodied, with some modifications, in a consolidated form, under the title of the Stamp Act, 1870, (Id. c. 97.) The duties on Policies of Marine Insurance (vide post, p. 247), were an unfortunate exception from this consolidation.

The stamp duties cited in the following pages are all, unless otherwise stated, those specified in the schedule to the Stamp Act, 1870. These duties are, by sects. 1, 3, imposed on and after the 1st January, 1871, on the instruments specified in the schedule, in lieu of all other duties thereon, and are subject to the exemptions contained in the schedule, and in any other acts for the time being in force, and, by sect. 6, they are charged in accordance with the regulations of that act. Sect. 5 provides that " except where express provision to the contrary is made by this or any other act," the same duties are to be charged on instruments relating to the property of the Crown, or the private property of the sovereign, as on instruments relating to the property of subjects; such express provision is made in the stat. 10 Geo. 4, c. 50, s. 77, with reference to instruments entered into with H. M.'s Commissioners of Woods and Forests, under the provisions of that act; and that act is incorporated with subsequent acts, e.g., 5 Vict. c. 1, s. 7.

The principal changes introduced by the act are the abolition of progressive duty and the general reduction of the 35s. stamp chargeable on deeds and other instruments to 10s. See sect. 4 (post, p. 239) and schedule.

Want of Stamp.-When presumed.

209 In the case of certain awards and leases, vide post, pp. 223, 242, the duty is still 358.

Stamp duty is chargeable on an instrument in accordance with its legal effect. R. v. Ridgwell, 6 B. & C. 665, 669, per Bayley, J.; Hutton v. Lippert, 8 Ap. Ca. 309, P. C.; it is immaterial by what title the parties thereto may designate the transactions therein recorded. S. C. See also Wale v. Comms. of Inl. Rev., 4 Ex. D. 270.

Effect of want of Stamp.-Stamp when presumed.] By the Stamp Act, 1870, s. 17, unless the duty and penalty be paid at the trial under sect. 16 (post, p. 216), "no instrument executed in any part of the United Kingdom, or relating, wheresoever executed, to any property situate, or to any matter or thing done or to be done, in any part of the United Kingdom, shall, except in criminal proceedings, be pleaded or given in evidence, or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed." The words in italics are identical with those of the analogous provisions of the earliest Stamp Acts (5 & 6 W. & M. c. 21, s. 11; 9 & 10 Will. 3, c. 25, s. 59), with the exception that those were limited in their operation to evidence given in any court. Those provisions were incorporated in succeeding Stamp Acts, e.g., 55 Geo. 3, c. 184, s. 8; 13 & 14 Vict. c. 97, s. 2; &c.,-until their repeal by 33 & 34 Vict. c. 99. The cases cited below, decided under the earlier acts, are consequently applicable to the Stamp Act, 1870, s. 17, supra.

Sect. 22 imposes a penalty on the person who, in the course of his office, enrols, registers, or enters, in or upon any rolls, books, or records, any instrument not duly stamped. See also sect. 57, post, p. 232. These sections do not, however, invalidate the registration, &c., otherwise regular, of an instrument not duly stamped. Bellamy v. Saull, 4 B. & S. 265; 32 L. J., Q. B. 366.

The effect of sect. 17, supra, is that an instrument requiring a stamp, cannot, in general, be admitted in evidence without being stamped; and consequently the objection of the want of a proper stamp is raised by any pleadings that render it necessary to put the document in evidence. Thus, in an action on a bill, the objection will arise on a traverse of the drawing or acceptance. Dawson v. Macdonald, 2 M. & W. 26; M'Dowall v. Lyster, Id. 52. If parties agree orally or by implication to be bound by the same terms as those contained in another written instrument, the latter cannot be given in evidence unless properly stamped. Turner v. Power, 7 B. & C. 625; Walliss v. Broadbent, 4 Ad. & E. 877; Alcock v. Delay, 4 E. &. B. 660. Where a bond, required to be given by a judge's order, had been inauvertently filed by an officer of the court, although unstamped, and immediately the defect was discovered the party filing the bond procured it to be stamped, the original defect was cured as regards third parties who had no notice of the defect; and it would seem also for all purposes. Darby v. Waterlow, L. R., 3 C. P. 453.

When an unstamped instrument in writing has been lost; R. v. Castle Morton, 3 B. & A. 588; or destroyed even by the party who objects to the want of the stamp; Rippiner v. Wright, 2 B. & A. 478; oral evidence of the contents is inadmissible. But where an instrument has been lost or is not produced upon notice, and there is no evidence given respecting it one way or the other, the presumption is that it was properly stamped; but if it be shown to be at one time unstamped, the presumption is that it continued unstamped, until the presumption be rebutted by some evidence contra, so as either to prove the stamping, or to leave it altogether uncer

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