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and he had proceeded to act on those orders, the policy would certainly have been discharged from that moment, without regard to the more doubtful question whether the putting in or staying at Gottenburgh were or were not a deviation.
The obligation of the insurer on goods will also be discharged by a change of the ship, on the bottom of which the insurance is effected, unless the transhipment be matter of necessity, or be done in the known and regular course of the particular trade, or permission have been expressly reserved. 3
Another ground of exception is the breach of a warranty of neutrality by acts on the part of the assured, or the captain as representing him, by which the neutral character, though subsisting when the vessel sailed, is forfeited and determined. Of this, the instance of most frequent occurrence in time of war is, the resistance to the right of search by belligerent cruisers. It is not our intention here to enter into the much controverted and interesting question as to the nature and limits of this right. It is sufficient to indicate it as one of the cases in which the obligation of the insurer may be discharged after it has attached, and to add, that the sentence of a competent foreign Court upon the point is conclusive as to the breach of the warranty."
Fraud or illegality in the prosecution of the adventure, it is almost superfluous to say, will defeat the policy, unless the act be barratrous, and the insurers indemnify against barratry; and this brings us to the last exception which may be taken by the underwriter in exoneration of his liability, viz. that the loss, though proceeding immediately from a peril of the sea, was occasioned and brought about by the act or default of the assured, or those by whose acts he is bound.
But as our allotted space is already filled, the investigation of this matter must be reserved for the next number of our series.
1 Ante vol. 18, p. 314.
Plantamour v. Staples, Marsh. Ins. 164. 3 In all policies on seeking or trading voyages, such a stipulation is invariably introduced.
4 Garrels v. Kensington, 8 T. R. 230. And see the cases and observations in Marsh. Ins. 435 et seq. See also 2 Wheaton's Elements of International Law,72, 248, et seq.
ART. V.-STAMPS ON CONVEYANCES.
The Stamp Acts, for the purpose of construction, are considered in the nature of penal laws, and it is a settled rule that the enactments imposing a charge are to be construed strictly, and not to be carried beyond the precise words, while the clauses of exemption are to be interpreted as literally as the words will admit of. If there be any ambiguity in either, it is to operate in favor of the subject. It is also a maxim to be borne in mind in ascertaining the amount of duty to be paid, that the subject is not to be charged twice in respect of the same transaction. The statute 44 Geo.3, c. 98, provides, " that no single instrument, subject or liable to one specific duty, shall be chargeable under any two or more separate and distinct heads or denominations,” but there are cases to which this enactment does not extend, and in which it is necessary to resort to the maxim first noticed. Thus the assignment of a mortgage, where a further sum is advanced, is chargeable by the 3 Geo. 4, c. 117, s. 2, with an ad valorem duty on such further sum, and by the statute 55 Geo. 3, c. 184, the principal Stamp Act now in force, any deed or instrument made as an additional security, where a further sum is advanced, is also to be charged with an ad valorem duty in respect of such advance. But it has been decided, that where the same instrument contains an assignment and a conveyance by way of further security, and the assignee makes a further advance, the ad valorem duty is only to be paid once. 2
Other instances will be found in the following pages; the design of which is to aid the practitioner in cases of difficulty, both by illustrating the principles of construction applicable to this branch of law, and by affording precedents, as far as the decisions have gone, in reference to conveyances, mortgages, bonds, &c., upon the clauses relating to which most of the difficulty arises.
Every instrument under seal, with very few exceptions, requires some stamp. Even an agreement, the subject matter of which is less than twenty pounds, or an agreement for the sale of goods, though if under hand only it is exempted from duty, becomes chargeable if a seal be affixed, either under some specific denomination, or as a deed not otherwise charged. The language of this branch of the schedule is, “ Deed of any kind whatever, not otherwise charged in this schedule, nor expressly exempted from all stamp duty.” The only contracts by deed expressly exempted, other than those which are exempted by particular statutes, are, indentures of apprenticeship of children put out at the sole charge of a parish, township, or public charity, or pursuant to statute, and assignments thereof; certain administration bonds; conveyances to the owners of the land of rents purchased under 34 Geo. 3, c. 75, s. 14, for the better management of the Land Revenues of the Crown, where the consideration money does not exceed 101.; leases of waste or uncultivated lands to poor or labouring persons upon certain terms, and their counterparts or duplicates ; letters of attorney for securing stock dividends, not amounting to 31. per annum ; and bonds, contracts or agreements relating to the transportation of convicts. In all other cases, the question is, whether the instrument falls within any specific class, or not; if not, it belongs to the general denomination, and requires a stamp of ll. 158.
1 See Dean v. Diamond, 4 R. & C. 245 ; Doe v. Smith, 8 Bing. 152; Tomkins v. Ashby, 6 B. & C. 541 ; Meed v. Wilmot, 7 Bing. 577.
2 See Doe v. Gray, post.
The ad valorem duty on conveyances is imposed in the following terms : “Conveyance, whether grant, disposition, lease, assignment, transfer, release, renunciation, or of any other kind or description whatsoever, upon the sale of any lands, tenements, rents, annuities, or other property, real or personal, beritable or moveable, or of any right, title, interest or claim, in, to, or out of, or upon any lands, tenements, rents, annuities, or other property." — “Where the purchase or consideration money therein or thereupon expressed shall not amount to," &c., to fall within this enactment, the instrument must have the following properties :-1. It must be a conveyance, as distinguished from an agreement to convey. 1 2. The transaction must be a sale,-of property. 3. It must be for a pecuniary consideration expressed on the face of the deed.
The word “Sale,” is taken in its ordinary signification to import a transaction in which the sole consideration for
i Wilmot v. Wilkinson, 6 B. & C. 506.
parting with the property, on the one hand, is the price, and for the price, on the other hand, is the property. A father conveyed to his son by a deed, which recited that he was minded and had resolved to give and assure the premises to his son, as well in consideration of natural love and affection, as also in consideration of the provision which his son had that day made by his bond of 15001. in augmentation of the fortunes of his eight sisters. The deed bore a 1l. 15s. stamp. It was objected that the giving the bond made the son a purchaser, and therefore an ad valorem stamp should have been affixed for the 15001. But the Court held there was no sale within the meaning of the act. “ In common parlance,” said Bayley J., “a seller disposes of his lands at an adequate price, which the purchaser pays.” And Holroyd J. observed,
a sale imports a quid pro quo, in some way or other enuring to the benefit of the party selling. Here no benefit accrued to the father; it was altogether a gift to the son, for the benefit of himself and the other members of the family. The father had no compensation so considered in point of law. It is admitted that no duty would attach if the whole estate were divided amongst the different members of the family. If then any one receives money, in lieu of the share of the estate, can that make it a sale within the meaning of the statute ? true, that the son paying money for the estate may, in some sort, be considered a purchaser, but that does not make the father a seller, and to bring the case within the statute, I think there must be a sale as to both.” This doctrine has been confirmed by a recent case in the Court of Common Pleas. By an indenture, reciting an intended marriage between the daughter of the plaintiff and the defendant's nephew, the defendant, in consideration of the marriage, and of 40001. which the plaintiff had agreed to advance as a portion for his daughter, and also in consideration of the natural love and affection which the defendant bore to his nephew, covenanted, that in case the marriage were solemnized, he would pay to the plaintiff, during the joint lives of the intended husband and wife, the clear yearly sum of 8001. in trust for them. This was held not to be either a purchase or sale of
1 Dean d. Manifold v. Diamond, 4 B. & C. 243.
an annuity, so as to require an ad valorem stamp.' And where
person entitled for life to the dividends of certain stock allowed the person entitled in reversion to sell out a part of the stock upon having an annuity after the rate of 5l. per cent. on the amount of the proceeds secured by the defendant's bond, warrant of attorney, and an assignment of a policy on goods at sea ; it was held that this transaction was not a sale of an annuity. In another case, it was ruled by Lord Ellenborough, at Nisi Prius, that a deed containing mutual covenantswhich in substance were, that the plaintiff should relinquish his trade of a butcher in favour of the defendant, who was to be admitted into the house occupied by the plaintiff, and to be allowed to carry on the business there in the joint name of the plaintiff and himself, and the defendant was to have possession of the whole house, with the exception of one room, and also the fixtures, for which he was to pay 10001. down, and 10001. per annum for the ten years--did not operate as a sale of property so as to require an ad valorem stamp.
The words “ other property' are construed to mean something of the same description as that previously mentioned, viz. such property as is usually the subject of sale, and may be converted into money. Therefore, the assignment of a judgment does not require an ad valorem stamp;* nor the assignment of a policy on goods at sea, no loss having occurred. Upon the authority of Warren v. Howe, it was holden, that a common deed-stamp was sufficient for the following instrument : an indenture between two persons, described as having jointly entered into certain contracts with the commissioners for victualling the navy, reciting, that they had mutually agreed to dissolve the copartnership for carrying on the business of the said contracts, &c., that it was agreed that the share and interest of the one of and in the monies, property, and effects belonging to the said copartnership, or to them the said parties on account thereof, should be estimated at 50,0001., and to be taken by the other at that sum, who should thenceforth have the full benefit of the said contracts, and carry on the business thereof on his own account. It then contained an assignment of all the share and interest of the other of, in, and
Massy v. Nanny, 3 Bing. N. C. 478. 2 Blandy v. Herbert, 9 B. & C. 397. Lyburn v. Warrington, 1 Stark. 161. 4 Warren v. Howe, % B. & C. 81. Blaudy v. Herbert, 9 B. & C. 396.