Adams v Morgan

• Jurisdiction: Ireland
• Judgment Date: 26 February 1883
• Date: 26 February 1883
• Court: Chancery Division (Ireland)

Ex. Div.

Before PALLES, C.B., DOWSE, B., and ANDREWS, J.

ADAMS

and

MORGAN AND OTHERS AND EAMES

Buck v. RobsonELR 3 Q. B. D. 686.

Ex parte Shellard; In re AdamsELR L. R. 17 Eq. 109.

Brice v. BannisterELR 3 Q. B. D. 569.

Fisher v. Calvert 27 W. R. 301.

Diplock v. HammondENR 2 Sim. & Giff 141; 5 De G. M. & G. 320.

Emly v. CollinsENR 6 M. & S. 144.

Firbank v. BellENR 1 B. & Ald. 36.

Butts v. SwannENR 2 Brod. & Bing. 78.

Braybrooke v. MeredithENR 13 Sim. 271.

Hutchinson v. Heyworth 9 Ad. & Ell. 375.

Parsons v. MiddletonENR 6 Hare 261.

Matheson v. RossENR 2 H. L. C. 286.

Diplock v. HammondENR5 De G. M. & G. 320.

Stamp duty Assignment of debt

LAW REPORTS (IRELAND). QUEEN'S BENCH, COMMON PLEAS, AND EXCHEQUER DIVISIONS. ADAMS v. MORGAN AND OTHERS AND EAMES (1). Stamp duty-Order for payment of money-Assignment of debt-Stamp Act, 1870 (33 & 34 Viet. c. 97), sects. 3, 17, 48, 54, 77, 78-37 Geo. 3, c. 19, sect. 31-55 Geo. 3, c. 184. 0'0. & Co. contracted with the Defendants to supply them with timber, and the Defendants were indebted to O'C. & Co. on foot of the said contract in the sum of 460. O'C. & Co., when the Defendants were so indebted to them, addressed a letter to the Defendants as follows :-" We do hereby authorise and request you to pay to A the sum of 395 10s., due from you to us for goods sold and delivered by us to you, and the receipt of A will be a good disÂÂcharge." This instrument was duly stamped as an assignment, but was not stamped as a bill of exchange : Held, that the document was capable of being considered either as an assignment or as an order for payment of money ; and that though it could not be used as a bill of exchange, as it was not stamped as such with an impressed stamp, yet that, being duly stamped as an assignment, it could be relied upon as such, and an action could be maintained upon it in that character. Where an instrument is capable of being viewed in two different aspects, in one of which it is liable to stamp duty at one rate, and in the other of which it is liable to stamp duty at a different rate, such instrument may be admitted in evidence, where it is relied upon in the aspect in which it is properly stamped, although it is not duly stamped in the other aspect. Buck v. Robson (3 Q. B. D. 686); Bryce v. Bannister (3 Q,. B. D. 569); Fisher v. Calvert (27 W. R. 301) observed upon. ' DEMURRER. The statement of claim alleged that the Defen dant Morgan was chairman, and the other Defendants (except the Defendant Eames) were members, of the board of governors of (1) Before PALLES, C. B., DOWSE, B., and AnnnEws,, J. VOL. XII. LAW REPORTS (IRELAND). [L. R. I. the Cork District Lunatic Asylum, and that the Defendant Eames was the resident medical superintendent of the said asylum; that the said Defendants (other than the Defendant Eames) were, for convenience, sued as representing all the members of the said board of governors, which was a numerous body ; and that the Defendant Eames was sued in the alternative, as the person who expressly entered into the contract, hereinafter mentioned, on behalf of the said governors, and received from them the amount due thereon for the purpose of paying the same to the Plaintiff. It then averred Par 3. That in the month of December, 1881, one A. J. Corbett, trading as O'Callaghan & Co., had contracted to supply to the governors of the said asylum such quantities of certain timber as might be required from 26th December, 1881, to 25th December, 1882, at certain prices agreed on between them and the said A. J. Corbett ; and the said contract was entered into by the said governors, through, by, and in the name of the Defendant Eames, as resident medical superintendent of the said asylum, acting on their behalf, and all payments thereunder were to be made through him. Par. 4. Before and at the date of the assignment hereinafter mentioned the said governors were indebted to the said A. J. Corbett on foot of the said contract in the sum of 460 or thereÂÂabouts. Par. 5. On the 20th March, 1882, by writing under his hand, in the words and figures following, the said. A. J. Corbett assigned to the Plaintiff absolutely, and not by way of charge only, the sum of 39510s. of the sum due and owing to him as aforesaid. "20th March, 1882. " We, Andrew O'Callaghan & Co., do hereby authorise and request the board of governors of the Cork District Lunatic Asylum to pay to Mr. John J. Adams, of 3 Upper Camden-street, Dublin, the sum of 395 10s., due from the Cork District Lunatic Asylum to us for goods sold and delivered by us (Andrew O'Callaghan & Co.) to the said asylum ; and the receipt of Mr. John J. Adams for the same shall be a good discharge. " AleDREW O'CALLAGHAN & Co. (Per A. J. CORBETT.) " To Dn. EAMES, Lunatic Asylum." . VOL. XII.] Q. B., C. P., & EX. DIVISIONS. 3 Par. 6. Express notice in writing of the said assignment was Ex. Div. given on or about the 20th March, 1882, to the said board of 1882. governors and the Defendant James A. Eames. ADAMS Par. 7. All conditions, &c., have been fulfilled to entitle the lies% AN. Plaintiff to payment of the said sum, but the said governors have not paid the same or any part thereof. Par. 8. In the alternative, the Plaintiff says that, after the . receipt of the aforesaid notice, the Defendant Eames received from the board of governors the said sum of 395 10s. on the terms and for the purpose of paying the same to the Plaintiff, but the said Defendant Eames has not paid the same to the Plaintiff. The Plaintiff claimed the said sum of 395 10s. The paragraphs of the statement of defence material for the purpose of this report were as follows : Par 6. " The instrument set out in the fifth paragraph of the statement of claim was executed in . the United Kingdom, related to property therein, and was delivered by the said A. J. Corbett to the Plaintiff therein." Par. 7. " The said instrument was and is a bill of exchange within the meaning of the Stamp Act, 1870." Par. 8. " The said instrument was written and executed on material not bearing an impressed stamp of the amount of four shillings, and was not stamped with any bill of exchange stamp whatsoever." Par. 9. "Under the circumstances aforesaid, the Defendant says that the said. instrument was not duly stamped in accordance with the law in. force at the time when it was first executed, and is now incapable of being lawfully so stamped." The Plaintiff demurred to paragraphs 6, 7, 8, and 9 of the statement of defence. The document set out in the 5th paragraph of the claim was duly stamped as an assignment with a duty of ten shillings per cent. upon the 395 108. It was not stamped as a bill of exchange. J. C. Lane, and J. Atkinson, Q. C., for the Plaintiff : Irrespective of the Stamp Act, this document operates as an' equitable assignment. If it is an equitable assignment the Stamp B2 LAW REPORTS (IRELAND). [L. R. I. Act cannot convert it into a bill of exchange. It cannot be at once a bill of exchange and an order to pay. The 28th section of the Judicature Act does not make what would previously have been an equitable assignment less so now. This is an absolute assignment within the section. In Buck v. Robson (1) a document similar to the present was held to be an assignment admissible in evidence upon payment of the proper stamp duty and penalty. Ex parte Shellard ; In re Adams (2) cannot be considered an authoÂÂrity since the decision of the Court of Appeal in Brice v. BanÂÂnister (3), and of Jessel, M. R, in Fisher v. Calvert (4). In Diplock v. Hammond (5) a similar question arose under the former Stamp Act, 55 Geo. 4, c. 184, and the instrument was held to be an assignment. S. Ronan (with him J. Murphy, Q. C.), for the DefenÂÂdants : This is an assignment of 395 10s. out of 460. The Stamp Act, 1870, sect, 10, enacts that all facts must be stated on the instrument. The letter of the 20th March, 1882, is an order for payment of a debt, and must be stamped as a bill of exchange : Stamp Act, 1870, section 54, sub-section 1. If it is a bill of exchange it is immaterial that it is also an assignÂÂment. As to Buck v. Robson (1), the assignment made in. that case was of a whole fund ; a distinction must be drawn between the assignment of the whole of a fund and an order to pay a part of a fund : Diplock v. Hammond (5) shows the distinction. The Stamp Acts being for revenue purposes, must be construed strictly; if a document falls within the terms of the 48th section, it cannot be used for any purpose unless stamped as required by sect. 54. Emly v. Collins (6) has never been dissented from. llrbank v. Bell (7) was an order for payment out of a particular (1) 3 Q. B. D. 686. (5) 2 Sim. & Gift. 141; 5 De G. (2) L. R. 17 'Eci. 109. M. & G. 320. (3) 3 Q. B. D. 569. (6) 6 M. & S. 144. (4) 27 W. R. 301. (7) 1 B. & Ald. 36. VOL. XII.] Q. B., C. P., & EX. DIVISIONS. fund. Butts v. Swann (1) shows that the nature of the instrument is not altered, but it is brought within the Stamp Act : Braybrooke v. Meredith (2) ; Ilutchinson v. Heyworth (3) ; Parsons v. Middleton (4). The case of Diplock v. Hammond (5), where it was held that if a document be an assignment, and stamped as such, it need not be stamped as a bill of exchange, was decided before the Stamp Act of 1870, the 54th section of which Act is express, that a docuÂÂment improperly stamped shall not be available for any purpose whatsoever. In Brice v. Bannister (6) the stamp point was never raised. Ex parte Shellard; re Adams (7) was rightly decided. The Court in Buck v. Robson (8), which purports to overrule Ex parte Shellard ; re Adams (7), assumed that the instruments in both cases were substantially the same, but this was not the case. A disÂÂtinction is drawn in section 54, sub-section 1, between bills and all other instruments. If stamped as a bill, the document can be used as such, though not stamped as an assignment. [Per Curiam, are there any words in the former Stamp Acts corresponding to...