Mortgage, Bond, Covenant, &c.

245

"(2.) Being a collateral, or auxiliary, or additional, or substituted security, or by way of further assurance for the above-mentioned purpose where the principal or primary security is duly stamped-for every 100%., and also for any fractional part of 1007., of the amount secured :-6d.

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(3.) Transfer, assignment, disposition, or assignation of any mortgage, bond, debenture, covenant, or foreign security, or of any money or stock secured by any such instrument, or by any warrant of attorney to enter up judgment, or by any judgment:-for every 100l., and also for any fractional part of 100l., of the amount transferred, assigned, or disponed :-6d. ; and also where any further money is added to the money already secured :the same duty as a principal security for such further money.

"(4.) Re-conveyance, release, discharge, surrender, re-surrender, warrant to vacate, or renunciation of any such security as aforesaid, or of the benefit thereof, or of the money thereby secured-for every 100l., and also for any fractional part of 100l., of the total amount or value of the money at any time secured :-6d."

Mortgage of any stock or marketable security is, by 34 & 35 Vict. c. 4, s. 5, charged as follows :-" For every 5000l. and also for any fractional part of 5000l. of the amount secured :-10s.

"And no release or discharge of any such mortgage shall be chargeable with any ad valorem duty."

Definition of mortgage.] Sect. 105. "The term 'mortgage,' means a security by way of mortgage for the payment of any definite and certain sum of money advanced or lent at the time, or previously due and owing, or forborne to be paid, being payable, or for the repayment of money to be thereafter lent, advanced, or paid, or which may become due upon an account current, together with any sum already advanced or due, or without, as the case may be; and includes conditional surrender by way of mortgage, further charge, &c., of or affecting any lands, estate, or property, real or personal whatsoever :

"Any conveyance of any lands, estate, or property whatsoever in trust to be sold or otherwise converted into money, intended only as a security, and redeemable before the sale or other disposal thereof, either by express stipulation or otherwise, except where such conveyance is made for the benefit of creditors generally, or for the benefit of creditors specified who accept the provision made for payment of their debts in full satisfaction thereof, or who exceed five in number:

"Also any defeasance, declaration, or other deed or writing for defeating or making redeemable or explaining or qualifying any conveyance, or disposition, of any lands, estate, or property whatsoever, apparently absolute but intended only as a security.

"Also any agreement, contract, or bond accompanied with a deposit of title-deeds for making a mortgage, wadset, or any such other security or conveyance as aforesaid of any lands, estate, or property comprised in such title-deeds, or for pledging or charging the same as a security."

By sect. 107. (1.) Where the security is for payment of future advances, or a sum to become due on an account current with or without past advance, then if the ultimate amount secured is limited, the duty is on a security for the maximum amount. (2.) Where there is no such limit, the security is to be available only for the amount covered by the stamp impressed.

Sect. 109. "No transfer of a duly stamped security and no security by way of further charge for money or stock, added to money or stock previously secured by a duly stamped instrument, is to be charged with any duty by reason of containing any further or additional security for the

money or stock transferred or previously secured, or the interest or dividends thereof, or any new covenant, proviso, power, stipulation, or agreement in relation thereto, or any further assurance of the property comprised in the transferred or previous security." See Robinson v. Macdonnell, 5 M. & S. 228.

Sect. 110. "(1.) Where any copyhold or customary lands or hereditaments are mortgaged alone by means of a conditional surrender or grant, the ad valorem duty is to be charged on the surrender or grant, if made out of court, or the memorandum thereof, and on the copy of court roll of the surrender or grant, if made in court.' (2.) Where such lands are mortgaged with other lands, the ad valorem duty shall be on the instrument relating to the other property.

Definition of foreign security.] By 34 & 35 Vict. c. 4, s. 2, "the term "foreign security' means and includes every security for money by or on behalf of any foreign or colonial state, government, municipal body, corporation, or company, bearing date or signed after the 3rd June, 1862 (except an instrument chargeable with duty as a bill of exchange or promissory note),(1.) Which is made or issued in the United Kingdom: or (2.) Which, the interest thereon being payable in the United Kingdom, is assigned, transferred, or in any manner negotiated in the United Kingdom." security is "issued" when the company part with the possession and control of it. Grenfell v. Inl. Rev. Coms., 1 Ex. D. 242.

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Decisions on mortgage stamps.] Where title deeds are deposited by way of equitable mortgage, a mere memorandum stating the object of such deposit requires no stamp; Meek v. Bayliss, 31 L. J., Ch. 448; nor an instrument reciting a past deposit, but not made for the purpose of creating a charge. Pyle v. Partridge, 15 M. & W. 20; see also Fancourt v. Thorne, 9 Q. B. 312. A pledge of goods, as a bill of lading, is not within it, Harris v. Birch, 9 M. & W. 591. So, a memorandum of the deposit of goods with a contingent power of sale does not require a mortgage stamp. Re Attenborough, 11 Exch. 461; S. C. sub nom., Attenborough v. Inl. Rev. Coms., 25 L. J., Ex. 22. Where a deed is in substance a transfer of an existing mortgage although in point of law the old debt and equity of redemption are extinguished, it need be stamped as a transfer only. Wale v. Inl. Rev. Coms., 4 Ex. D. 270. An instrument issued by a company, not under seal, purporting on its face to be a "debenture," and containing an engagement to pay the amount thereof to P. W. A., or order, and also to pay interest to the holder on presentation of the coupons attached, is chargeable as a debenture and not as a promissory note. British India Steam Navigation Co. v. Inl. Rev. Coms., 7 Q. B. D. 165.

Exemptions.] By the general exemption (2) at the end of the schedule (ante, p. 235), instruments for the mortgage of a ship or vessel, or any share therein, are free from all stamp duty.

By 35 & 36 Vict. c. 93, s. 24, a special contract pawn-ticket, or its duplicate, in respect of a loan by a pawnbroker, above 40s. and not exceeding 107. requires no stamp.

Mortgages given to the trustees of building societies, established under 6 & 7 Wm. 4, c. 32, were by that act exempted from stamp duty. But by the Stamp Act, 1870, s. 112, this exemption was limited to mortgages made by members to secure sums not exceeding 500l., and has been wholly repealed by the Building Societies Act, 1874 (37 & 38 Vict. c. 42, ss. 7, 41). The Friendly Societies Act, 1875 (38 & 39 Vict. c. 60), s. 15, (2, d.), does

Policy of Insurance.

247 not exempt from duties, securities on which the funds of a friendly society are invested. See Re R. Liver Friendly Society, L. R., 5 Ex. 78. A conveyance by debtor, to trustees in trust to sell and with the proceeds to discharge, first, debts due to the trustees and then debts due to other creditors, with a resulting trust for the original debtors, is within the exception in the Stamp Act, 1870, s. 105, ante, p. 245. Coates v. Perry, 3 B. & B. 48. A transfer of a mortgage to effect an appointment of new trustees is not, by sect. 78 (ante, p. 235), to bear a higher stamp than 10s. See Foley, Ld., v. In. Rev. Coms., L. R., 3 Ex. 263.

Policy of Insurance.

Life insurance.]" Policy of insurance. (1.) Upon any life or lives, or upon any event or contingency relating to or depending upon any life or lives (except for the payment of money upon the death of any person only from accident or violence or otherwise than from a natural cause)-Where the sum insured does not exceed 10.-1d. exceeds 10l. but does not exceed 251.-3d.; exceeds 251. but does not exceed 500l.-for every full sum of 50%., and also for any fractional part of 50l., of the amount insured, 6d. ; exceeds 500l. but does not exceed 1000l.-for every full sum of 100l., and also for any fractional part of 100l., of the amount insured, 1s. ; exceeds 1000l.-for every full sum of 1000l., and also for any fractional part of 1000l., as the amount insured, 10s."

Fire and accident insurance.] "(2.) For any payment agreed to be made upon the death of any person, only from accident or violence, or otherwise than from a natural cause, or as compensation for personal injury, or by way of indemnity against loss or damage of or to any property :-ld."

Definitions.] Sect. 117. (1.) The term "insurance" includes assurance and the term "policy" includes every writing whereby any contract of insurance is made, or agreed to be made, or is evidenced; and, except as hereinafter mentioned (post, p. 249), this act does not apply to policies of sea insurance.

Adhesive Stamps.] "Sect. 119. (1.) The duties imposed by this act upon policies of insurance may be denoted by adhesive stamps, or partly by adhesive and partly by impressed stamps. (2.) When the whole or any part of the duty upon a policy of insurance is denoted by an adhesive stamp, such adhesive stamp is to be cancelled by the person by whom the policy is first executed."

Sea insurance.] The duties payable in respect to sea insurances are still regulated by stat. 30 & 31 Vict. c. 23, vide Stamp Act, 1870, s. 117 (1), supra. By the Schedule (B) of that act the following stamp duties are payable :

:

For every policy for or upon any voyage-in respect of every 100l., and fractional part of 100l.—3d.

For every policy for time-in respect of every 100l., and fractional part of 100l. where the insurance shall be made for any time not exceeding 6 months-3d.; for 6 months and not exceeding 12-6d.

But if the separate and distinct interests of two or more persons shall be insured by one policy for a voyage or for time, then the duty of 3d., or the duty of 6d., as the case may require, shall be charged thereon in respect of every 100%., and fractional part of 100l., thereby insured upon any separate

or distinct interest. Now, by 39 & 40 Vict. c. 6, s. 1, where the policy is stamped in respect of the aggregate of such interests, but not with respect of each of them, it may be stamped with additional stamps within one month after the last risk has been declared.

By 30 & 31 Vict. c. 23, s. 11, where the insurance is made for a voyage, and also for time, or to extend to or cover any time beyond 24 hours after the ship shall have arrived at her destination and there be moored at anchor, the policy is made chargeable with both voyage and time policy duty.

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By sect. 8, no policy shall be made for any time exceeding 12 months and every policy which shall be made for any time exceeding 12 months, shall be null and void to all intents and purposes."

By sect. 9, 66 no policy shall be pleaded or given in evidence in any court or admitted in any court to be good or available in law or in equity, unless duly stamped;" and no policy may be stamped after it is signed, or underwritten by any person; except in the case

(1.) Of mutual insurances not underwritten to an extent beyond that which the stamps already impressed warrant.

(2.) Policies executed abroad chargeable with duty, vide post, p. 249. Now, by 39 & 40 Vict. c. 6, s. 2 (ante, p. 217), a sea policy may be stamped at the trial on payment of the unpaid duty and of penalties.

By 30 & 31 Vict. c. 23, s. 4,"sea insurance" means any insurance (including re-insurance) made upon any ship or vessel, or on the machinery, tackle, or furniture thereof, or upon any goods, &c., on board, or upon the freight, or any other interest which may be lawfully insured in or relating to any ship or vessel; and "policy" means any instrument whereby a contract or agreement for any sea insurance is made.

By sect. 12, where any carrier by sea or other person, in consideration of any sum for additional freight or otherwise, agrees to take any risk attending goods, &c., while on board any ship or vessel, or to indemnify the owner of the goods from any risk, loss, or damage, the agreement is a contract for sea insurance.

By sect. 16, no broker, &c., may charge his employer for brokerage or for any moneys expended as premium for any such insurance, unless duly stamped; and all sums paid by the employer on any such account to any broker, &c., making any such insurance contrary to this act are deemed to be paid without consideration, and remain the property of such employer. See Roderick v. Hovil, 3 Camp. 102.

Form of Policy.] By 30 & 31 Vict. c. 23, s. 7, "no contract or agreement for sea insurance (other than such insurance as is referred to in the " 25 & 26 Vict. c. 63, s. 55, post, p. 249), “shall be valid unless the same is expressed in a policy, and every policy shall specify the particular risk or adventure, the names of the subscribers or underwriters, and the sum or sums insured; and in case any of the above-mentioned particulars shall be omitted in any policy, such policy shall be null and void to all intents and purposes."

This section, read with the definition clause, sect. 4, supra, now replaces 35 Geo. 3, c. 63, s. 2, which was similar in its terms. It was sufficient if the name of the underwriting firm was expressed in the policy; Reid v. Allan, 4 Exch. 326; Dowdall v. Allan, 19 L. J., Q. B. 41. And where each of the parties in a secret partnership underwrites in his own name, on account of the partnership, this is a compliance with the act; Brett v. Beckwith, 26 L. J., Ch. 130. But a policy issued by the A. A. Association for mutual insurance, signed by the managers "per proc. of the several members of the A. A. association for insuring each other's ships," the members liable being a fluctuationg body, is void, for the policy does not state the names of the underwriters. Ex parte Hargrove, L. R., 10 Ch. 542. Where

Policy of Sea Insurance.-Slip.-Alterations.

249

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an agent has insured goods in his own name on behalf of his principal, the latter is entitled to sue on the policy, although it does not show that the agent was insuring as such. De Vignier v. Swanson, 1 B. & P. 346, n.; followed in Browning v. Provincial Insurance Co. of Canada, L. R., 5 P. C. 263. But, it must be proved that the policy was effected on behalf of the plaintiff. Watson v. Swan, 11 C. B., N. S., 756; 31 L. J., C. P. 210. The statute applies to agreements of mutual insurance; Smith's case, L. R., 4 Ch. 611; Ex parte Hargrove, ante, p. 248. As to what is sufficient description of the risk, see Edwards v. Aberayron Mutual Ship. Insur. Soc., 1 Q. B. D. 563. defence arising from non-compliance with this section must now be pleaded specially. Rules, 1883, O. xix., r. 20, post, p. 284. The 25 & 26 Vict. c. 63, s. 55, has reference to the following events, occurring without the actual fault or privity of the owners of the ship, viz. :—(1) loss of life or personal injury caused to any person carried in any ship; (2) damage or loss caused to any goods, merchandise, or other things whatsoever on board any ship; (3) loss of life or personal injury, by reason of the improper navigation of any ship, caused to any person carried in any other ship or boat; (4) loss or damage, by reason of the improper navigation of any ship, caused to any other ship or boat, or to any goods, merchandise, or other things whatsoever on board any other ship or boat.

Effect of slip.] An insurance slip, when initialed by an insurance company or underwriters, is, in the ordinary course of business, treated as a contract to insure and to issue a policy in accordance with the slip; 30 & 31 Vict. c. 23, ss. 4, 7 (ante, p. 248), however, prevent its being used as evidence of such a contract, and the contract is therefore only binding in honour; Fisher v. Liverpool Marine Insurance Co., L. R., 8 Q. B. 469 ; L. R., 9 Q. B. 418, Ex. Ch. ; but the slip is admissible in evidence for any other purpose, e.g., to show the intention of the parties as to what risk was undertaken by the underwriters; Ionides v. Pacific, &c., Insurance Co., L. R., 6 Q. B. 674; L. R., 7 Q. B, 517, Ex. Ch.; Lishman v. N. Maritime Insur. Co., L. R., 8 C. P. 216; L. R., 10 C. P. 179, Ex. Ch. See also Cory v. Patton, L. R., 7 Q. B. 304; and L. R., 9 Q.B. 577. Apart from the initialing of the slip there is no contract by an insurance company to forward the copy slip and to issue the policy; Fisher v. Liverpool Marine Insur. Co., supra.

Executed abroad.] By the Stamp Act, 1870, s. 117, " (2.) A policy of sea insurance made or executed out of, but being in any manner enforceable within, the United Kingdom, is to be charged with duty under the stat. 30 Vict. c. 23, and may be stamped at any time within two months after it has been first received in the United Kingdom on payment of the duty only."

Alterations.] By 30 & 31 Vict. c. 23, s. 10, nothing in that "act shall extend or be construed to extend to prohibit the making of any alteration which may lawfully be made in the terms and conditions of any policy after the same shall have been underwritten; provided that such alteration be made before notice of the determination of the risk originally insured, and that it shall not prolong the time covered by the insurance thereby made beyond the period of six months, in the case of a policy made for a less period than six months, or beyond the period allowed by this act in the case of a policy made for a greater period than six months, and that the articles insured shall remain the property of the same person or persons; and that no additional or further sum shall be insured by reason or means of such alteration."

The following cases were decided under 35 Geo. 3, c. 63, s. 13, now repealed, the provisions of which much resembled the above section. A mere exten