1846. BAKER r. JUPP. Court to hear it, it would have been just as binding as if a POLLOCK, C. B.-The Master reports that a rule to discontinue, on payment of costs, is no stay of proceeding. The present rule must be discharged. Rule discharged. To a declara tion on a pro missory note, dated 15th of April, 1845, the defendants pleaded, that at the time the note was made and BRADLEY v. BARDSLEY and Another. DEBT by payee against makers of a promissory note, dated 15th April, 1844, for payment of 145l. 4s. on or before the 15th of April, 1845. Plea: That by the said note at the time the same was made and signed by the defendants, to wit, on the 15th of April, 1843, the defendants promised to pay the said sum of money therein mentioned without thereby specifying any time for the payment thereof, and the defendants did not thereby then promise to pay the said sum on or before the tioned, without said 15th of April, 1845, or at or within any other day or signed by them, they promised to pay the sum therein men specifying any time for pay ment: that after the note was made and issued, and was complete and delivered to the plaintiff, the note was, by consent of the defendants, but without the same being restamped, altered by the plaintiff in a material part, by making the same payable on or before the 15th of April, 1845. Replication: that before and at the time of making and issuing, and completing the note, and before the alteration was made, it was meant and intended by the plaintiff and the defendants, that the note should be payable on the 15th of April, 1845, but by mistake the note was made and issued, and complete, without specifying any time for payment: that the alteration was made for the purpose, and with the intent of correcting the mistake. Rejoinder, that before and at the time of the making of the note, it was not meant and intended that the note should be payable on the 15th of April, 1845. Held, that the rejoinder was bad, for putting in issue the intention of the parties before, as well as at, the time of making the note. Held also, that the plea was bad, for not shewing that the alteration was made under circumstances which rendered the note invalid unless restamped. Semble, that the replication was also bad, for not shewing that the note was not complete at the time of the alteration. Quare, whether the Stamp Acts can be pleaded, unless the want of a stamp renders the instrument void? time whatsoever: that after the note was made and issued, and was complete and delivered to the plaintiff and not before, to wit, on the said 15th of April, 1843, the note was by consent of them, the defendants, but without the same being restamped, altered by the plaintiff in a certain material part, that is to say, by making and expressing the same to be payable on or before the 15th of April, 1845, and by the insertion in the said note of the words "and to be paid on or before the 15th of April, 1815," which words, before such alteration, were not inserted or contained in the said note. Verification. Replication that before and at the time of making and issuing and completing and delivering of the note to the plaintiff and before the said alteration was made, it was meant and intended by the plaintiff and the defendants, that the note should be payable on or before the 15th of April, 1845, and that the words so inserted in the said note should be inserted therein; but by the mistake of the plaintiff and the defendants the note was made and issued, and was complete and delivered to the plaintiff without thereby specifying any time for payment of the said sum of money: that the alteration was made with the intent and for the purpose of correcting the said mistake and making the note payable and in form according to the said meaning and intention of the plaintiff and the defendants, and with their consent, and within a reasonable time after the making of the said note, and before the same had been negotiated by the plaintiff. Verification. Rejoinder: that before and at the time of the making and issuing and completing and delivering of the note to the plaintiff and before the said alteration was made, it was not meant and intended by the plaintiff and the defendants that the note should be made payable on or before the 15th of April, 1845, or that the words so inserted and added in and to the said note should be inserted or added, modo et formâ. Conclusion to the country. Special demurrer, assigning for causes (amongst others), that the rejoinder put in issue immaterial matter, inasmuch 1846. BRADLEY v. BARDSLEY and Another. 1846. BRADLEY v. BARDSLEY and Another. as it traversed and denied that it was meant and intended, before the completing, issuing, and delivering the said note, that it should be made payable as alleged in the replication. Willes, in support of the demurrer. First, the rejoinder is bad in putting in issue immaterial matter. [Parke, B.—It is certainly immaterial what the parties intended before the making of the note]. Secondly, the plea is bad. Assuming that the Stamp Act can be pleaded, the present plea does not raise the defence. It alleges that the bill was not restamped but there is no statute which authorizes the restamping of bills. If the plea is not good under the Stamp Act, it affords no answer whatever; for an alteration with the consent of both parties would not avoid the instrument at common law; Com. dig. "Fait" (F.) But it is submitted that the Stamp Act cannot be pleaded, unless it render the unstamped instrument void. Lazarus v. Cowie (a) was decided on the ground that the 19th section of the 55 Geo. 3, c. 184, expressly prohibits the re-issuing of a bill after it has been paid, and inflicts a penalty on any person so doing. The only effect of the stamp law, is that an unstamped instrument cannot be given in evidence. Cowling, contrà. The plea is good. The 31 Geo. 3, c. 25, s. 19, enacts that no bill of exchange or promissory note "shall be pleaded or given in evidence,” unless duly stamped. At all events the plea is good on general demurrer, as it shews that the note was complete at the time of the alteration; if the fact were otherwise, it should come from the plaintiff by way of replication. The authorities shew that, if the instrument is once complete, it cannot be altered without being restamped; Bathe v. Taylor (b); Downes v. Richardson (c); Jones v. Jones (d); Kershaw v. Cox (e); Byrom v. Thompson (f). (a) 3 Q. B. 459; S. C. 2 G. & D. 487. (b) 15 East, 412. (c) 5 B. & A. 674; S. C. 1 D. & R. 332. (d) 1 Cr. & M. 721. (f) 11 A. & E. 31; S. C. 3 P. & D. 71. [The Court called on] Willes. The plea does not shew that the note might not be rendered available by being stamped. It might possibly fall within the cases enumerated in the 3rd section of the 37 Geo. 3, c. 136, which enables the commissioners, within sixty days to stamp instruments, where the omission has not arisen from an intention to defraud the revenue; or it may fall within the provisions of the fifth section, which enacts, that bills of exchange, if on stamps of an equal or superior value, though of different denomination than the legal stamps, may be properly stamped, on payment of the duty and a penalty. The note in question may have had an agreement stamp as well as a bill stamp. The clause which prohibits unstamped instruments from being received in evidence, is not only in the above statute, but also in the 5 Wm. & M. c. 21, s. 11. [The Court then called on] Cowling. If, as suggested, the note had been stamped with an agreement stamp, it could not be said to be complete. [Parke, B.-The plea cannot be good, if the note could by any means have been made available at the trial. At all events, the plea should have shewn, that at the time of the action brought, the note was not properly stamped. The Stamp Laws can only be pleaded as a good bar in cases, where the instrument cannot be restamped. Alderson, B. -There is nothing to shew that the note was not restamped since its alteration, and before action brought.] If the fact were so it ought to have been replied. PARKE, B.--I am of opinion that the rejoinder is bad, it includes two things, namely, the intention of the parties before the making of the note, as well as at the time of making the note. Then with respect to the replication, it is clear that it ought to shew that the original instrument was not a binding instrument before the alteration took place. I doubt whether it does that, but as the plea is bad it is not necessary to give any opinion as to the sufficiency 1846. BRADLEY v. BARDSLEY and Another. 1846. BRADLEY v. BARDSLEY of the replication. The material words of the plea are, "without the same being restamped.” At common law the plea would be bad, as the alteration was made with the consent and Another. of the parties; and even after the passing of the Stamp Acts, there might be an agreement to alter a bill, and it might be restamped. To make the plea good, it ought to appear that it was impossible to make an alteration in the instrument, and that it could not be restamped. Suppose the words, "without being restamped," are to be considered as meaning, "without being stamped with the proper duty;" then the only allegation is, that at the time the alteration took place the note was not duly stamped; but it might be stamped at the time of trial. In order to make a good plea, it ought at least to have been shewn that at the time of plea pleaded the note was not stamped; though I do not think even that would have done, as it might be stamped before the trial. The plea is, therefore, bad, as it does not shew those circumstances under which the note could not be restamped. ALDERSON, B.-It seems to me that the plea is bad. If the alteration were such that it could not, at common law, be made without rendering the instrument void; or if any alteration, after a note was complete, would render it invalid, unless subsequently stamped, then the plea would be good. But if there be any case in which an alteration may be made at common law, and the instrument be still valid; or if, under any circumstances, the note can be restamped, then the plea is bad. If the law were, as Mr. Cowling contends, it would be a good plea in an action on an agreement, to plead that the agreement was not stamped at the time of making it. If the law were that no agreement could be enforced unless stamped at the time it was ori ginally made, the want of a stamp might, perhaps, be a good plea; but if an agreement may be valid, although not originally stamped, it cannot be any answer to plead that fact. This plea does not shew that the alteration was made under circumstances which rendered the note invalid |