AN IMPORTANT JUDGMENT.

New Zealand Mail, Issue 1510, 7 February 1901, Page 50

AN IMPORTANT JUDGMENT.

UNSTAMPED AGREEMENTS

Dr McArthur, S.M., delivered liis reserved judgment- on the 28th in the case of Commissioner of.-Stamps v. Bartholomew Bros., Fraser ana Gray, a claim for £lO 2s on behalf of the Crown in respect of unstamped agreements. The terms of the judgment were as follows : —The defendant, Hugh Fraser, a farmer of Pohangina, brought an action against Bartholomew Bros, and others in the Palmerston District Court- on account of certain proceedings entered into between the parties. Two agreements were tendered in evidence —one of which was improperly stamped and the other was unstamped. These agreements were inadvertently received and used in evidence. The Court, on its attention being called to the fact, ordered the agreements to be- properly stamped and forwarded to .the Commissioner of Stamps -in - Wellington. • The Commissioner sued the parties to the agreements for the amount of the stamps and fines in. each case. The- Crown admitted —(1) That Bartholomew Bros, were willing to pay the duty,- but not the .fine; (2) that the documents .in question were not produced, called for, nor. wanted by Bartholomew Bros.; (3) that the documents in question were produced by the plaintiff Fraser. Counsel for the Crown submitted that the Commissioner could recover under section 19 of the Stamp -Act Amendment Act, 1885, by virtue of the words “ all duties and other moneys.'' Counsel for Bartholomew Br/>s. submitted that. “other moneys” referred to questions of revenue. The rights ■of the Commissioner to sue were provided for in the Stamp Act, 1882. Sections 5 and 6 referred only to such duties as were mentioned in the third schedule of the Act, there being no reference whatever to fines. Section 31 dealt with offences under the Act. Section 48 recited the terms upon which unstamped or insufficiently-stamped instruments might he received in evidence. The powers of the Court cited therein were deterrent only. Section 53 provided that instruments presented at anj r Stamp Office for. assessment or otherwise might be ,impounded and detained until duty and fine were paid. The exact words of the judgment in conclusion were : -—Sections 56 and 57 refer only to mistakes made by a Deputy Commissioner in assessing duty or improperly putting on a stamp denoting that the instrument is not liable t-o duty. Section 146 provides that a document shall not be of any validity unless and until it is properly stamped. The Court may order the document to he stamped, and l thereupon such document shall be as valid! as if it had been pro. perly stamped in the first instance. There is no reference in this section to fines and penalties. Stamp Act, 1882, Amendment Act, 1885 : —Section 4 sets but the terms upon which instruments may be stamped after execution. Section 5 only amends sections 56 and 57 of the principal Act, and my remarks thereon are applicable here. Section 19 : This.section, on which the Commissioner relies, provides that all duties and other moneys payable tinder the provisions of the Stamp Act shall, from and after the day on which the same shall become due and payable, be deemed to be debts due to her Majesty from every person liable to the payment of the same, and may be recovered summarily by any person appointed in that behalf by the Commissioner. It is submitted by counsel that the Crown can recover under this section under tli9 duties and other moneys.” The reply to this by counsel for Bartholomew Bros, is that the section refers only to questions of revenue. To decide this point is to decide the whole issue between the parties. I am of opinion that section 19, by virtue of its position (being the last but one section of the Amendment Act of 1885), and by virtue of its language, is intended to provide for any : omissions that there may have been in the principal Act or in the amendment thereto. .By the Interpretation Act, 1888, section 5, subsection 7, every Act is remedial* and shall accordingly receive stscli fair- large and! liberal construction as will best insure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning and spirit. Considering, then, the position of section 19 of the Act of 1885 and its language read in the light of the section of the Interpretation Act just referred to, I am of opinion that the Commissioner has a right to recover duty and fine from the party, or parties who produced the documents in question before the Court in. evidence. The Court was misled in the former action by the oondneb of Fraser, plaintiff in the action heard in the District Court at Phlmersfcon North, and one of the defendants in the present suit. As the defendants Bartholomew Bros, and Gray had no part in producing the instruments to the Court, they are dismissed from the action. Judgment will bo for the plaintiff against Hugh Fraser for the sum of £lO 2s.

Mr Tripe, counsel for Bartholomew Bros., who were dismissed from the suit, applied for costs against the Com_ missioner, but the Magistrate disallowed the application, on the ground that they were partly responsible for the original breach.. Costs totalling £4 14s were allowed against Fraser. Mr Myers conducted the case for the Commissioner.