Messrs. Kenneth Matheson and Son, Contractors at Dullatur v. Alexander Ross, Contractor at Cumbernauld [1849] UKHL 6_Bell_374

UKHL

Messrs. Kenneth Matheson and Son, Contractors at Dullatur v. Alexander Ross, Contractor at Cumbernauld

[1849] UKHL 6_Bell_374

It is competent to appeal against an interlocutor upon a question as to admissibility of evidence reserved at a trial by jury for the opinion of the Court.

Subject_ Stamp Act — Evidence. —

An unstamped receipt used to prove a matter collateral to proof of payment of the money mentioned in it, is admissible evidence, unless the collateral purpose is to be established by proof of the particular payment. In such a case it will be inadmissible.

The Respondent brought an action against the Appellants for payment of two sums of money, one of 143 l . 3 s . 11 d ., as the balance of the contract price of work performed for them, and the other of 662 l . 15 s . 4 d ., as the price of certain extra work.

The Appellants pleaded in defence that accounts had been adjusted between them and the Respondent, before the work done by him had been measured, and that after crediting him with sums amounting to 1,250 l . 1 s . 4 d ., and debiting him with payments amounting to 1,181 l . 12 s ., there remained a balance of 68 l . 9 s . 4 d ., which had been paid to the Respondent on the 17th January, 1842; that the work had been afterwards measured, and then it was discovered that the Appellants still owed the Respondent 34 l . 17 s . 3 d ., to account of which they paid him 25 l . on the 2nd April, 1842, leaving a final balance of 9 l . 17 s . 3 d ., which they were ready to pay.

The cause went to trial upon two issues, whether the Appellants

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The Respondent, in support of his case, tendered as evidence a “note of the payments received from Messrs. Matheson and Son, for the Easter contract, at Dullatur,” in which there was the following entry:—

“1842, January 14, cash received, 68 l . 9 s . 4 d .”

The Appellants, among other evidence, tendered the following document:—

State of Settlement with A. Ross, 13th January, 1842.

Dr.

Alexander Ross.

Cr.

1841.

Aug. 7.

Cash

£240

Aug. 7.

Pay-bill

£305

Sep. 4.

Do. £230 and £4

234

Sep. 4.

Do.

277

Sep. 11.

Do.

Oct. 2.

Do.

280

Oct. 2.

Do. Horses

Oct. 30.

Do.

202

Oct. 2.

Do.

210

Nov. 27.

Do.

139

Oct. 30.

Do.

155

Dec. 11.

Do.

Nov. 1.

Do.

Nov. 5.

Do.

Nov. 13.

Do.

Nov. 17.

Do.

Nov. 27.

Cash

100

Dec. 4.

Do.

Dec. 11.

Do.

Dec. 21.

Do.

1842.

Jan. 13.

Do.

£1181

Balance

£1250

Jan. 17.

To cash

£68

Jan. 13.

By Balance

£68

They also tendered a piece of paper which had originally been part of that on which the account was written, and which contained the following writing:—

“ Dullatur, 17th Jan ., 1842.

I acknowledge having received from K. Matheson 68 l . 9 s . 4 d . sterling, being balance amount of pay-bills paid from 7th August to 11th December, both inclusive.

(Signed) Alex Ross .

£68. 9 s . 4 d .”

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An objection was taken by the Respondent to the admissibility of this latter document as a receipt to prove the payment of the sum mentioned in it; but no objection on that ground was taken to its admissibility as a document to prove the state of the account: it was therefore received, subject to all objections; but afterwards, the Judge presiding reserved right to the Appellants to get it stamped, if they thought it required a stamp for the particular use they proposed to make of it.

The jury, under the direction of the Court, returned a verdict for the Respondent, with leave to the Appellants to apply to the Court to enter up a verdict for them. The Appellants moved the Court accordingly, when the Respondent argued, that the document, purporting by its term, to be a receipt for 68 l . 9 s . 4 d ., and tendered by the Appellants, not for the purpose of proving the receipt by the Respondent of that money, but of shewing the state of the account between the parties at the particular date, could not be received in evidence for any purpose whatever, as it did not bear a stamp. The Court ordered minutes of debate upon this question to be laid before the whole Court for its opinion.

The consulted Judges, by a majority of six to three, were of opinion that the paper could not be received in evidence, and the division of the Court, (the second) before which the case depended, concurring in that opinion by a majority of three to four, pronounced the following interlocutor:—

“In respect of the opinions of a majority of the consulted Judges, refuse the motion for the defenders to direct the verdict to be entered up for them, and find the pursuer entitled to the expenses incurred by him in this discussion, subject to modification.”

Sir F. Kelly and Mr. Anderson for the Appellants.—The document upon which this question arises was tendered in evidence, not to shew the receipt of 68 l . 9 s . 4 d .; that was wholly unnecessary, for the Respondent had himself proved that

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This purpose was one wholly collateral to and independent of evidence to show payment of the money mentioned in the receipt. The Stamp Act declares that all notes, memorandums, or writings whatever, given “for or upon the payment of money,” shall be construed to be receipts, which by another part of the statute, must have a stamp impressed upon them. But the statute nowhere declares that a paper, shewing the close of a variety of transactions, must, if used to prove the state of these transactions, have a stamp upon it. The fact of payment of the 68 l . 9 s . 4 d ., which the document acknowledges no doubt, was wholly immaterial to the Appellants, as immaterial as if, instead of using it to shew the account, they had produced it merely to shew that the Respondent could write. What is important for them is, to shew by the signature of the Respondent, that he acknowledged the correctness of the accounts. Although the signature is at the receipt, yet the account and the receipt being on one paper, there cannot be a question that the signature applied equally to the account as to the receipt. It may be said, certainly, that using it for the purpose for which the Appellants tender it, the receipt is used to prove the payment of the different sums at the Respondent's debit

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In that case the paper was admitted to prove, by the signature of the party to it, the statement in it, that a previous payment of 100 l . had been made, and that all claims had been satisfied by the payment of 52 l . 10 s ., although the stamp covered only 52 l . 10 s . In short, the fact of the paper being a receipt, for a particular sum, was not allowed to defeat its effect for other purposes, so here the fact of the paper containing a receipt, cannot defeat its use for other purposes, than to prove the payment of the particular sum it purports had been paid. And in Bennie v. Mack , 10 Sh . 255, an unstamped paper, bearing, “I have this day got bills and cash from you to the amount of 55 l . 4 s . 6 d .” was received as evidence of a payment by bills to the amount of 26 l ., although the paper purported to be a receipt for money.

Mr. Wortley and Mr. A. M'Neill for the Respondent.—It is not competent for the Appellant to bring the question raised by the Appeal before the House. The jurisdiction of the House

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With regard to the merits, the enactment of the Stamp Act is, that no receipt “shall be pleaded or given in evidence in any court, or admitted in any court to be good, useful, or available in law or equity,” unless it shall be marked with a lawful stamp. This enactment does not say that the receipt shall not be admitted to be good, useful, or available, to prove the receipt of the particular sum, but generally that it shall not be good, useful, or available for any purpose whatever. The document in question, in the present case, is in express terms a receipt; and though it may not be necessary for the party's purpose to use it to prove payment of the sum mentioned in it, it is equally to defeat the policy of the statute to allow him to use it for the larger and more available purpose of showing the correctness of the sums in the account. He can only do so by reading the receipt, for there is no separate acknowledgment of the correctness of the account; that is only shown by inference from the acknowledgment in the receipt of

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All the cases establish that a receipt, not properly stamped, cannot be used for any purpose beneficial to the party producing it, whatever that purpose may be. In Scott v. Burd , 8 Bell & Mur . 25, an unstamped receipt was not allowed to be used, to prove against one of two debtors in favour of the other that he had paid the debt, so as to entitle him to contribution. That was a much more favourable case than the present, for the use attempted was not against the original creditor, to show that he had received his money, but against a third party, to show by whom it had been paid. The King v. Inhabitants of Castlemorton , 3 Bar. & Ald . 588, was a case of a similar nature; there an unstamped lease was not allowed to be read, although the purpose was merely to show the value of the premises let, in a question with the parish as to settlement or no settlement, and not to make the instrument available as a lease against either of the parties to it. So in Hawkins v. Warre , 3 Bar. & Cres . 690, unstamped receipts for rent were not allowed to be read to prove a tenancy, in defence to an action for alleged illegal seizure of corn for payment of rent. In the King v. Hall , 3 Starkie , 68, an unstamped receipt produced, not for proving receipt of the money against the party entitled to

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Lord Chancellor .—The question in this case was, whether a document which was stated to be a receipt of payments, making a balance of 68 l ., was a receipt, which purported to be a receipt for that sum of 68 l ., the balance of an account, and whether it was receivable in evidence in a contest between the parties, not being tendered for the purpose of proving the payment of the 68 l ., but being tendered for the purpose of proving the state of the account as set out in the papers, bringing out a balance of 68 l ., for which a regular receipt was given.

My Lords,

it is contended that inasmuch as this was a document which purported to be a receipt for 68 l ., it could not be received, not having a proper receipt stamp. On the other hand, it was contended that the document, though not receivable as a receipt, for the purpose of showing the discharge of the 68 l ., yet inasmuch as it was available for other purposes, unconnected with the fact of 68 l . having been paid, was not vitiated by the receipt for the 68 l . having been written on it, and was receivable therefore for the purpose of showing the state of the account as it stood before the receipt for the 68 l .

Now, my Lords, upon a consideration of the cases that were referred to, both in this country and in Scotland, but particularly in this country, I find that they are so very inconsistent with one another, and they seem, in most instances, to be so little regulated by any fixed rule or principle, that it would be a hopeless task to endeavour to reconcile them. But it does appear to me, that from all the cases a certain principle may be

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Now, my Lords, this debtor and creditor account, as it stands upon the face of it, must of course be taken from books. If the party had signed a book instead of signing a paper, could anybody doubt that that would be evidence against the party signing it, as shewing the state of the account? Because the items of payment in the account do not require a stamp—no one contends that they do. It is an acknowledgment of the parties that the account stands as it appears on the face of the book, or as it appears on the face of the paper which is signed. This document made out, and recognised, and acted upon, and signed by the parties, is good evidence of the state of the account for that purpose and that purpose only.

My Lords,

without attempting to go through the variety of cases which have been referred to, it does appear to me that this principle will be found to reconcile a great many of them, (although with respect to others there is some difficulty in reconciling them,) as it steers entirely clear of the Stamp Acts, which beyond all doubt it is the duty of all Courts to support, so far as the Legislature intended they should be supported, but which all Courts must be anxious to keep within their proper limits, in order not to deprive parties of evidence of their rights on account of some difficulty supposed to arise from the Stamp Acts. And it is, therefore, the duty of the Court to see that its decisions are kept within the proper bounds. It does not appear to me at all to infringe upon the Stamp Acts, to hold this document admissible for the purpose of evidence, so far as it contains matter not connected with the receipt of money; and, therefore, that the Court below have erred in not permitting this document to be received.

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Lord Brougham .—My Lords, it is undoubtedly the duty of all Courts, as my noble and learned friend has justly observed, to protect the revenue, and to see that the intention of the Legislature is carried into effect, which requires certain documents when produced in evidence for certain purposes, to have a stamp, whereby the revenue has so much gain. But it is not the duty of the Courts to strain the construction of these Stamp Acts, so as, without regarding the object of the Legislature, to deprive parties of the means of evidence, whereby they might maintain on the one side or the other their different contentions before the Courts. This would be to make the Courts instrumental in levying many duties which were not intended to be imposed upon the subject, and would be adding a grievance to that grievance which I am much afraid we must admit that all taxes naturally impose, be they ever so closely kept to their original intention, and be the law imposing them ever so equitably or even mildly administered. Therefore, this being the rule, that we ought only to regard the intention of the Legislature, and not to strain it, giving a larger scope to what is enacted than the Legislature intended should be given, this being the general rule, we come to consider whether the present case has not gone to the outside of that rule and erroneously imposed the obligation of putting a stamp upon an instrument used, not as a receipt but for another purpose. I looked very carefully, as my noble and learned friend near me did, into the different cases which were cited on either side, and which have been cited and very diligently examined, I must say, both by the counsel and the judges in the Court below, and to reconcile all these cases I found to be absolutely hopeless; some of them are Nisi Prius cases, as for instance, The King v. Hall , tried before Mr. Justice Bayley, and another on the other side, of Brooks v. Dunn , I think tried before Lord Wynford, and also Terbutt v. Ambler , which was tried I think before Lord Denman, and reported in Carrington & Payne . There are other cases,

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Now, my Lords, all these eight cases I have examined, and have found that it is not possible accurately to reconcile them altogether; one or two of them stand out a good deal in one direction, and one or two as much in the other, and an attempt to reconcile them all would be vain; at the same time, my opinion coincides with that of my noble and learned friend, whom, indeed, I communicated with before, that the rule which we are disposed to follow in this case, and from which I think the Court below has somewhat departed, goes as nearly as possible in the circumstances to a reconcilement of the cases, and leaves very few of them, not perhaps above one or two beyond the scope of it, and not reconcileable by means of it. That rule, I take to be clearly this, that where a document is used for the purpose of proving a receipt of money in any way, it requires a stamp, and when it is said, that if it is used for a collateral purpose it may be given without a stamp, in the case I put, where it is used as evidence of payment of money in any way, it is a receipt used as a receipt, and requiring a receipt stamp before it can be so used, and when the cases as some of them do lay it down, that where it is used for a collateral purpose, it does not require a receipt stamp, I do not think that that is a perfectly accurate, and not always a very intelligible expression; because it may be for a collateral purpose, and yet if it is used in a way to mix up with it the receiving or paying of money, so that upon the whole, a receipt of money is the matter for which, or in respect of which, or connected with which, the document is used, it requires past all doubt to have a stamp, because it is in one

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Lord Campbell .—My Lords, upon the first question raised on this appeal at your Lordships' bar I entertain no doubt at all, and I have entertained no doubt since I first made myself master of the arguments on both sides.

It is strenuously contended on the part of the Respondent that this appeal is incompetent, and that the interlocutor is final, precluding any further proceeding. Now, my Lords, it is quite clear that in the general case, there is an appeal from the Court of Session to your Lordships' House. The onus , therefore, lies upon the Respondent to shew how the appeal is taken away in this case, and the Respondent relies upon four sections of the 55 Geo. III., cap. 42. But when those sections are examined, it will be found that it is impossible by any reasoning to say that they bear such a construction as that attempted to be put upon them by the Respondent. The sixth section which is relied on applies exclusively to new trials. Now that is prohibitory. That gives a power to apply to the division of the Court of Session from which the issue is directed for a new

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Then comes the next section, section 7, which admits of bills of exceptions, but there is nothing turning upon that; and it is perfectly consistent that the same question of law may be raised in two different forms, either by tendering a bill of exceptions, or by reserving the point which is in the nature of special case, and although there is a mode expressly given of raising it by a bill of exceptions which clearly may be brought by appeal to this House, that does not at all prevent the other mode by reserving the question for the opinion of the Court, and then the Court determining how the matter shall be dealt with.

Then comes the 8th section, which is likewise expressly confined to a new trial.

Then the 9th section, instead of taking away your Lordships' jurisdiction ex abundanti cautelâ ex abundanti cautelâ preserves it, for it provides “That in all cases whereon the Court shall pronounce a judgment in point of law as applicable to or arising out of the finding by the verdict, it shall be lawful and competent for the party dissatisfied with the said judgment in point of law, to bring the same under review either by representation or reclaiming petition, or by appeal to the House of Lords.”

Here the point of law was reserved as to the admissibility of this evidence. The Court have determined how that point of law in their opinion stands, and the right to take the opinion of your Lordships upon that point of law is expressly reserved.

My Lords,

clearly the scope of legislation upon this subject was that the determination of facts should be final, but that still there should be the right for the protection of the parties,

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With respect to the question of evidence, I must confess that I have in the course of the argument entertained very serious doubt. This being an action brought to recover the balance of an account, primâ facie primâ facie the document called a receipt if stamped would be admissible in evidence to prove that a sum of money had been received. My opinion is that if a document purporting to be a receipt, but unstamped, is offered in evidence for any purpose during a trial, if it would be evidence when stamped as a receipt to establish any point that is litigated between the parties, it cannot be received for a collateral purpose, merely by the parties saying, “I offer it for a collateral purpose, and let the receipt part be taken pro non scripto .” I think, my Lords, you cannot abstract a part of the document in this manner and give the rest in evidence. The criterion, therefore, seems to me to be not whether the party seeks to make use of it as a receipt, but whether it can be made use of as a document to settle any question litigated between the parties, and, my Lords, had this sum of 68 l . 9 s . 4 d . been in dispute, I should have thought that this document would not have been receivable in evidence for any collateral purpose. For only see the danger that would arise. Can the jury be told “You are to discharge from your minds every thing that applies to the receipt—that is not upon stamped paper, and therefore it is not in evidence—but you are to look to the other part of it, and that you are to apply to another and a collateral purpose?” I think this would be a dangerous doctrine; I find no case that has gone so far; because although the language of the Judges is that it may be given in evidence for a collateral purpose, if you look at the various cases that have been cited, you will find in those cases

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I am very glad, therefore, my Lords, to find that consistently with the notions that I have entertained, as to the rule that ought to guide the Judges in their direction in such cases this document was receivable in evidence, because it is quite clear that the justice of the case requires it, and I should have deeply deplored the necessity of thinking that it ought not to have been admitted.

My Lords,

I find that looking at the statement which we have from the learned Judge who presided at the trial, and to which our attention was exclusively directed, he says that “On the part of the Defenders it was contended that as the payment of the particular sum of 68 l . 9 s . 4 d . had been admitted, and as that sum is not included in the demand made, the paper in question was in no sense whatever used or required by them as a voucher to instruct payment of that sum, the payment of that sum not being a matter in dispute among the parties.” I feel myself authorized to come to this conclusion that the payment of that sum was wholly immaterial—was not a question between the parties—and that therefore, if the receipt had been stamped it would have been of no avail whatsoever as a receipt. That being the case it comes within the rule which I think is a sound rule to be laid down upon this subject, that it could not have been used if stamped; and it is not left merely to the party to say, “I do not use it for this particular purpose.”

Under those circumstances, my Lords, I am glad that I quite concur with my noble and learned friends, I think that this document although it contains a receipt for this sum the balance of 68 l . 9 s . 4 d ., as it could not have been used for any effectual purpose respecting that sum ought to have been received for the collateral purpose of identifying the state of the accounts. Under these circumstances I concur with my noble

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Ordered and Adjudged, That the interlocutors of the 25th of June, 1847, and of the 8th (signed 10th) of July, 1847, complained of in the appeal, be reversed, and that the verdict in the action in the Court below be entered up for the Appellants, and that the said Appellants be assoilzied from the conclusions of the said action. And it is further Ordered, That the Respondent do pay to the said Appellants the costs incurred by them in the Court of Session in the said action. And it is also further Ordered, That the cause be remitted back to the Court of Session in Scotland, to do therein as shall be just and consistent with this judgment.

Solicitors: W. O. & W. Hunt— David Bartie, Agents.