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Instruments executed abroad.
Stamps on it is inadmissible in this country, I entirely dis
If the doctrine of James v. Catherwood be correct, contracts and other instruments executed in a foreign country, so far as they confer or are used as evidence in enforcing rights of a personal nature against the party executing them abroad, although
relating to real property in England, seem to Conveyance require no stamp at all: but a deed of conveyance of
real estate in England would probably be held to be subject to the English stamp saws wherever it might be executed; for such instrument could never have been enforceable, or have had any validity or effect as a conveyance, in a foreign Court.
But the doctrine of James v. Catherwood has had much doubt cast upon it by Bristow v. Sequeville, ubi supra, as well as by the text writers. See Storey, sects. 260, 318; Westlake, sect. 198. And there seems to be great force in the objection, where, by the law of the place, the instrument is incurably void, unless stamped previously to execution; but if the law allows the stamp to be affixed after execution, then it is a mere rule of evidence, or lex fori, and can no more be taken notice of in a foreign court than a law of limitation, which bars the remedy merely, and not the right. See Don v. Lippman, 5 ci. & Fin. 1. Yet, when it is considered that even a law which absolutely avoids a contract for want of a stamp is a mere fiscal penalty, and quite collateral to the making of the contract as between the parties, it may be doubted whether the rule which refers the validity of a contract to the law of the place where it was made, can properly be extended to such a law as that.
Instruments executed in England, although intended to be acted upon abroad, must bear an English stamp. See Stonelake v. Babb, 5 Burr. 2673.
Instruments executed out of England are, at all events, sufficiently stamped with the stamp required by the law of the place of execution : Snaith v. Mingay, 1 Mau. & S. 87; Jordaine v. Lashbrooke, 7 T. R. 601; Holdsworth v. Hunter, 10 B. & Cr. 449; 5 Man. & Ry. 393. But a statement of the
Instruments for use abroad.
Instruments executed abroad.
place of execution on the face of the instrument Stamps on does not exclude parol evidence that it was,
in fact, executed elsewhere: Jordaine v. Lashbrooke : Ex parte Manners, 1 Rose, 68. In Ximenes V. Jacques, 1 Espin. 311, an agreement, purporting to have been executed at sea, was received without a stamp. See Winbled v. Malmberg, 1 Esp. 454.
Of course, a deed which has once performed its Decd cannot office, cannot be used in a second transaction to second transwhich the terms of it may happen to apply. Thus, action bein the case of Hammond v. Foster, 5 T. R. 635, where same parties, A. granted a redeemable annuity to B., which he without being
re-stamped. redeemed, paying over the redemption-money to B.'s attorney, from whom he received the annuity deeds cancelled. A. afterwards applied to the attorney to procure him more money, who informed him that he had not paid over to his client the money he had received for redeeming the annuity, and that he would re-deliver to A. that sum on receiving back the deeds. This was done, and one of the grounds for an application to the Court for setting aside the annuity was, that it was an entirely new transaction, and that there ought to have been new stamps on the deeds; and of this opinion was the Court.
Where a material addition has been made to a Deed cannot deed after all the circumstances essential to its be added to, operation are complete, this additional matter tion, without requires to be stamped as a separate instrument, a fresh stamp. whether it is written upon the same piece of parchment or not: Schumann v. Weatherhead, 1 East, 537; Bacon v. Simpson, 3 M. & W. 78; Stevens v. Lowe, 2 M. & Sc. 44. But see Taylor v. Parry, 1 Scott, N. R. 576. On the same principle, it is clear that Alterations. an alteration cannot be made in a bill of exchange, after it is issued, without a fresh stamp: Knill v. Williams, 10 East, 431; Bathe v. Taylor, 15 East, 412; Downs v. Richardson, 5 B. & Al. 674; Bowman v. Nicholl, 5 T. R. 537. See Spicer v. Burgess, 1 Cr., M. & R. 129; Byron v. Thompson, 3 Per. & D. 71; S. C., 11 A. & E. 31; Knight v. Clements, 3 Nev. & P. 375; S. C., 8 A. & E. 215; Atten v. Farren, 5 Car. & P. 513. But it is clear that an alteration made in a deed, Correction of
which was essential to
of the deed, does not subject it to a
allowed to be corrected.
by merely correcting the mis-statement of a fact, Agreements, and not arising from any change of intention in the
parties, and more especially if the instrument were the operation previously incapable of legal operation, does not,
nor does the re-execution of the deed consequent on
such alteration, subject it to a fresh stamp; and fresh stamp. therefore, where, after the execution of a bill of sale
of a ship, it was discovered that the certificate of registry was mis-recited, whereupon the error was rectified and the deed was re-executed, but without any new stamp, an objection to its admissibility in evidence on this account was overruled: Cole v.
Parkin, 12 East, 471. Error in fact And the same rule was followed in another
instance where the alteration was merely designed to correct an error, and did not spring from altered intention, though the error was not, as in the last case, of a nature wholly to prevent the deed from taking effect. Thus, in the case of Robinson v. Touray, 1 Mau. & Sel. 215, it was held, that a mistake in a policy of insurance made by the agent, in declaring the interest in the margin of the policy to be on a ship by a wrong name, might be rectified, by inserting the true name, without a fresh stamp: Sanderson v. Symons, 4 J. B. Moore, 42.
In Robson v. Hall, Peake, 128, a memorandum of a wager with an indorsement made after execution, doubling the amount of the bet, was held by Lord Kenyon to require two stamps. however, proceeded on the ground that there were
two distinct bets, and the paper was received in Unstamped evidence as to the first bet. But generally an
alteration in the terms of an agreement puts an end to the old agreement; and although not stamped, may be looked at to show that the old agreement is at an end, whether it is made by an indorsement or by a separate writing, on the same principle that an unstamped writing may be looked at to exclude parol evidence of the matter to which it relates : Reed v. Deere, 2 Car. & P. 624; S. C., 7 B. & Cr. 261; Sweeting v. Halse, 4 Man. & Ry. 287; 9 B. & Cr. 365.
It is clear, that an alteration made in a deed deed, while in
Alteration in amount.
variation looked at for some purposes.
while it was in fieri, having been executed by some Stamps on
Agreements. only of the parties to it, does not subject it to an additional stamp. Thus in the case of Matson v. fieri, does not Booth, 5 Mau. & Sel. 223, where it appeared that, fresh stamp. after a bailbond had been executed by some of the bail, but before the bond had been accepted by the sheriff, the name of another obligor, with the concurrence of those who had executed it, was added; it was held that the bond was not rendered void by this alteration, and that no additional stamp was necessary; for never having been out of the hands of the obligors, the bond was to be considered, at the time of the addition, as in the nature of an
So in Lyburn v. Warrington, 1 Stark. 162, an indorsement made on a deed after signature, but before the sealing and delivery, was admitted without a new stamp; and the insertion of the name of a second witness after execution, but before delivery to either witness, was held good. So, an alteration in a bankrupt's certificate before allowance : Ex parte Sawyer, 17 Ves. 244.
The subject of escrows is fully treated of under As to escrows. the title ATTESTATION, infra, and therefore it will be sufficient to observe here, that the ancient doctrine has been much relaxed by modern decisions : and it is now established, that, even if an instrument be executed as the deed of the party, and not in terms as an escrow, yet, if it be accompanied by an understanding or agreement for postponing its operation until some future event or period, this will constitute it an escrow. See Johnson V. Baker, 4 B. & Al. 410; Murray v. Earl of Stair, 2 B. & Cr. 82; 2 D. & Ry. 278; Matson v. Booth, 5 Mau. & S. 223 ; Hudson v. Revett, 5 Bing. 368, stated in Spicer v. Burgess, 1 Cr., M. & R. 129; Watkins v. Nash, L. R., 20 Eq. 262. Upon the same principle of liberality greater scope has been given than formerly to alterations made subsequently to the execution of the instrument, where they had been made with the privity of the parties interested, and without any fraudulent intention; and such alterations have been held not to affect the validity of the instrument in instances where
Alteration after execu
Stamps on according to the old doctrine they would certainly Agreements. have had that effect : Waugh v. Russell, 1 Marsh.
311; Coke v. Brummel, 2 J. B. Moore, 495; Worral v. Jacob, 3 Mer. 756; Hudson v. Revett, 5 Bing. 368; Collins v. Prosser, 1 B. & Cr. 682; 3 D. & R. 112; Hall v. Chandless, 12 J. B. Moore, 316; but see Adams v. Bateson, 3 Moo. & Pay. 339.
In these cases no question was raised as to the tion by some of sufficiency of the stamp, with the exception indeed the parties. of Hall v. Chandless, which seems to have decided
that an alteration made in a deed after its execution by some of the parties, who were not the principal agents in the transaction, being merely passive or concurring parties, and were not interested in the alteration, did not subject it to a fresh stamp. See Knight v. Crockford, 1 Esp. 190; Jones v. Jones, 1 Cr. & M. 721.
By sect. 8 of the Stamp Act, 1870—
“Except where express provision to the contrary is made by one stamp. this or any other Act, an instrument containing or relating to
several distinct matters is to be separately and distinctly charged as if it were a separate instrument, with duty in respect of each of such matters."
Several dis. tinct transactions cannot be included in
So, if A. owes B. a sum of money, and C. owes D. a sum of money, B. and D. could not take from their respective debtors a bond for the payment of their several debts by one instrument having only a single stamp, though the stamp were sufficient to cover a bond for the aggregate sum; and even if the obligee or the obligor were the same person, that is, if two creditors, owing distinct independent debts, bind themselves to their common debtor (but not one for the other), or one debtor, owing to two different persons two distinct independent debts, becomes bound to his several creditors, by the same instrument, for the payment of the requisite debts, it must bear a separate stamp for each obligation, there being no community of interest or purpose between the respective parties. Again, though it is clear that the legatees under a will may join in releasing the executor, in a deed bearing one stamp