be made evidence of an account stated, or other outstanding accounts.1

Where an instrument is inadmissible by reason of the stamp laws it will be allowable to resort to other admissible evidence. Thus, when a promissory note is defectively stamped, a holder may give evidence, on the common counts, of the original consideration; as by showing on a count for money lent that the defendant has acknowledged the debt for which the note was given. So, when a receipt is unstamped, he may prove payment by oral evidence.3

2

DENOMINATION OF STAMP.

(55 Geo. 3, c. 184, s. 10.)

"From and after the passing of this act all instruments, for or upon which any stamp or stamps shall have been used of an improper denomination or rate of duty, but of equal or greater value in the whole with or than the stamp or stamps which ought regularly to have been used thereon, shall nevertheless be deemed valid and effectual in the law; except in cases where the stamp or stamps used on such instruments shall have been specially appropriated to any other instrument by having its name on the face thereof."

This section gives effect to a stamp which is not less in amount than the proper stamp, provided it be not specially appropriated to any other instrument by having its name on the face thereof.4

1 Matheson v. Ross, 2 H. L. Cas. 301.

2 Farr v. Price, 1 East, 56.

3 Rambert v. Cohen, 4 Esp. 213.

Patteson, J.: Lucan v. Jones, 5 Q. B. 953.

ALTERATION OF A STAMPED DOCUMENT.

A material alteration in a writing requiring a stamp, after it has been made or executed, avoids the stamp, and renders a fresh stamp necessary; but not so if the alteration be immaterial, or according to the original intent of the parties.1

Thus, when the defect is unintentional, and the alteration makes the writing merely what it was intended originally to have been, it will not require to be restamped.2 Where a promissory note was made originally payable to the plaintiff, who complained that it ought to have been payable to order, it was held that, as between the parties to the note, the interlineation of the words, 66 or to order," did not render a new stamp necessary.3 So, when a bill is altered by the consent of parties before the note has issued, it will not require to be re-stamped. But when the bill has issued, and where the alteration is material and varies the essential character of the writing, so as to amount to a new contract, a new stamp will be required, notwithstanding the consent of the parties to the alteration.5

4

TIME OF OBJECTING TO THE WANT OF STAMP.

Where an objection is raised to an instrument for want of a stamp, the objection should be taken as soon as the instrument is tendered, and before it is received in evidence. If the instrument be received, and read without objection, it cannot afterwards be objected to for want of a stamp. Such a deficiency is clearly not ground for a new trial; but it may be doubted whether

1 Master v. Miller, 1 Smith L. C. 457, and notes.

2 Cole v. Parkin, 12 East, 471.

3 Byrom v. Thompson, 1 A. & E. 31.

1 Smith L. C. 490 a.

5 Bowman v. Nicholl, 5 T. R. 537; 1 Smith L. C. 490 a.

a judge at Nisi Prius has not at least a discretionary power to reject a document which, after being put in, appears to be unstamped, or insufficiently stamped.1 But, generally, an objection to an unstamped writing should be taken before it is read in evidence.2

It has been said that since the 17 & 18 Vict. c. 125, s. 28, an adverse party cannot object to the production of a writing on the ground of its being unstamped or insufficiently stamped, since under that clause it is the duty of the judge and the clerk of assize alone to notice such deficiencies.3 This doctrine seems to require confirmation.

Such are the general principles of the Stamp Laws in their application to the Law of Evidence. The amount of stamp payable on different writings will be found in the various statutes. (See Chitty's Statutes, Stamps, vol. 3, and Tilsley on Stamps.)

1 Field v. Wood, 7 A. & E. 114.

Foss v. Wagner, 7 A. & E. 116, note.

3 Per Watson, B.: Franklin v. Harris, Bristol Spring Assizes, Western Circuit, 1859, M.S.

423

PART III.

CHAPTER I.

ON THE ATTENDANCE OF WITNESSES.

PROCESS.

THE attendance of witnesses in the superior courts of common law, in courts of equity, and, when such process is necessary, in the criminal courts, is obtained by serving the witness with a subpœna ad testificandum. The following is the form in the superior courts of common law:

SUBPOENA AD TESTIFICANDUM.

"Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to A.B. [name of all the witnesses included in the subpoena] greeting: We command you that, laying aside all and singular business and excuses, you, and every of you, be and appear in your proper persons before our right trusty and well beloved Sir Alexander Edmund Cockburn, our chief justice assigned to hold pleas

in our court before us [or, in Common Pleas, "before Sir William Erle, Knight, our chief justice of the Bench;" or, in the Exchequer, "before Sir Frederic Pollock, lord chief baron of our Court of Exchequer at Westminster"] at the Guildhall of the city of London [or, in Middlesex, "at Westminster Hall in the county of Middlesex," or, at the assizes, "before our justices assigned to take the assizes in and for the county of in the said county"] on instant [or "next"] by

at

the

of

day of the clock in the forenoon of the same day, to testify all and singular those things which you or either of you know in a certain cause now depending in our court before us at Westminster, between C. D. plaintiff and E. F. defendant, in an action on promises [or whatever the cause of action is] on the part of the plaintiff [or "defendant "] and on that day to be tried by a jury of the country; and this you, or any of you, shall by no means omit under the penalty upon each of you of 1007. Witness [name of chief justice or chief baron] at Westminster, the day of of our reign." [Only four witnesses can be included in this writ.]

in the

year

Where the witness is required to produce documents in his custody, he must be served with a

SUBPOENA DUCES TECUM.

"Victoria, &c. (as in common subpoena to the day of trial, then proceed) and also that you bring with you and produce at the time and place aforesaid [here describe shortly the documents which the witness is required to produce, e.g., a certain instrument purporting to be an indenture of lease, made between A. B. on the one part, and C. D. of the other part, and dated the day of

1859.]"