We have now the pleasure to inclose our account current tó 31st December last, balance to your credit 761. 1s. 7d., which sum, upon your confirming the account, we will immediately remit to Messrs. Henry Cooper and Son, agreeably to your letter of 29th August, 1816. The sales of gunpowder made by Swan, Chappell, and Heywood, up to the present time, amount to 140%. 17s. 9d.; but no part of this sum is yet due from the purchasers: when received, it shall be remitted in the same manner to the parties whom you have instructed us to pay over these proceeds to. We remain, Dear Sir, Your obedient Servants, The question for the opinion of the Court was, whether the Plaintiffs were entitled to recover the sum of 3217. or any part thereof; and a verdict or nonsuit was to be entered accordingly. Vaughan Serjt., for the Plaintiffs, among various other objections, contended that the first of the beforementioned letters was an order to pay money within the 55 Geo. 3. (a), and as such ought to have borne a stamp at the time it was written; and there being no stamp at that time, a stamp could not be applied afterwards under sect. 10., which comprehended only cases where an im (a) . 184. sched. part 1. proper proper stamp had been applied in the first instance. He cited Firbank v. Bell (a). Hullock Serjt., contrà. This letter does not constitute a bill of exchange or a strict order for the payment of money. It is not a bill of exchange, because the fund out of which the payment was to be made was uncertain; -it is not an order for the payment of money, because Cooper and Son could make no demand by virtue of it till Swan and Co. had given their assent, and that assent they only gave provisionally. In fact, it forms no more than part of the materials of an agreement, to have recovered on which the party must have declared specially on both the stamped letters. But if it should be held to be an order for payment of money within the statute, the intent and meaning of the statute in classing instruments of this description among bills of exchange, was not to make that a bill of exchange which never can be such, but only to answer the purposes of revenue; and those purposes being answered by the application of the agreement stamp, the intent and meaning of the statute has been sufficiently pursued. — In this view, the intent of the statute is consistent with the law respecting bills of exchange: in any other view, the statute must be held inconsistent with law, by making an order to pay out of uncertain funds constitute a bill of exchange. The enactment, therefore, of the 31 Geo. 3. c. 35., by which parties are prohibited from stamping bills after making them, cannot apply to such instruments as these, under which money is to be paid out of a particular fund. In Firbank v. Bell there was but one document which contained the order. The letters in the present case are only two of several, constituting an entire correspondence; and by 55 Geo. 3. c. 184. sched. part 1. when any set of letters constitute an agreement, it shall (a) 1 B. & A. 36. 1820. BUTTS ข. SWAN. 1820. BUTTS V. SWAN. be sufficient to stamp one of them. By those means the purposes of the revenue are satisfied in cases like the present; but, if the first letter be deemed an order for payment of money within the statute, the consequences must be most extensive, for there is scarcely a mercantile correspondence out of which many such orders might not be extracted. Vaughan, in reply, urged, that if it were sufficient to stamp, at any period subsequent to the making, an order falling so directly within the terms of the statute as the present, the purposes of the revenue would be entirely defeated, for no stamp would be had except in litigated cases. DALLAS C. J. This case is now narrowed to a single point; it is unnecessary, therefore, to discuss the others which have been raised; for the important point now to be considered, is, whether this instrument falls within the different provisions of the acts referred to. It is agreed that, if this instrument constitutes a bill of exchange, it could not be stamped after it was first issued: if, therefore, this be an order for the payment of money, and if an order for the payment of money stand upon the same footing as a bill of exchange by the provisions of the 55 G. 3. c. 184., the argument against its admission in evidence would be conclusive. Does it, then, stand on the same footing as a bill of exchange by virtue of that act? Now the stamp is imposed on bills, drafts, or orders for the payment of money, the act classing them together: then, in a subsequent part of the schedule, bills, drafts, and orders for the payment of money at a future day, are made liable to the duties imposed by the act; and all bills, drafts, or orders for the payment of any sum of money out of any particular fund, which may or may not be available, or or upon any condition or contingency which may or may not be performed or happen, are, by that act, to be deemed bills, drafts, or orders for the payment of money within the schedule of the act. By the 8th section, all the provisions of the former acts are made to apply to the subject-matter of the latter. An order for the payment of money seems to me, therefore, as far as the purposes of this act are concerned, to be placed on the same footing with bills of exchange and promissory notes; and, if it be so placed, no distinction can be drawn, after the express provision in the 55 G. 3., between orders for the payment of money out of a particular fund and bills and notes in general. Without saying, therefore, that the statute alters the nature of instruments, or makes that a bill of exchange which would not otherwise be such, it is clear, that, under the 55 G. 3., orders of this description fall within the same provisions as bills of exchange and promissory notes. And this seems to me to be decided by the case of Firbank v. Bell; a case essentially the same as that before the Court. In that case the order was to pay over to certain persons a sum of money, when a cargo of mahogany was sold, in such bills as might be received from the sale; an order which is directed in terms almost precisely the same as the present. The sale might or might not have taken place, bills might or might not have been received; and the case now under consideration is, if possible, the stronger of the two. Such was the order; then followed the letter from the party in whose favour the order was made, requesting the attention of the parties, who were to effect the sale, to the before-mentioned order; and then came the answer to that letter from the parties who were to effect the sale, stating their readiness to attend to the order after they had paid themselves a sum which they had been previously in advance. This, therefore, like the 1820. BUTTS V. SWAN. 1820. BUTTS บ. SWAN. case under consideration, does not consist simply of an order to pay money out of a future fund which might or might not be sufficient, but contains also a subsequent correspondence. The cases, therefore, do not differ, except in the point ingeniously attempted to be distinguished at the bar. In the judgment of the Court in Firbank v. Bell it is said "There is nothing to which the name of an agreement can be given if you do not pray in aid the order; that is the only thing by which the bankrupt is personally implicated, for he is not a party to the letters ;" and it is, therefore, said that there was in that case but one document which contained the order. Whether or not that distinguishes the case from the case now before the Court I shall presently examine. Lord Ellenborough then proceeds; "the order alone affects the bankrupt, and that amounts to nothing more than an order for payment. It falls then within the description of the act of parliament, viz. an order for the payment of money out of a fund which may or may not be available. It was the object of the legislature in framing this provision to treat as promissory notes and bills of exchange, and to subject to a stamp duty such instruments as being payable on a contingency or out of a particular fund could not in strictness fall under that denomination." Adverting, therefore, to the distinction which exists, independently of the statute, between bills and notes payable at all events, and orders payable out of a particular fund, the learned Chief Justice says, that the object of the statute was to put those instruments, which before differed from the former class, on the same footing with them. I see no difficulty, therefore, in this case on principle, and on authority it falls within the decision before mentioned, unless the instrument is to be considered as an agreement, and not as an order for payment of money. The argument for that position appears to me to be a fal lacy. |