1. I cannot but feel in this case that Mr. Jardine has raised an ingenious argument, but, in my opinion, the words of the Stamp Act are clear.
2. Mr. Jardine asks me now, under Clause (2) of Section 38 of that Act to send this document in question in the original to the Collector.
3. Clause (2) of Section 38 of the Stamp Act says: ' In every other case? the person so impounding an instrument shall send it in original to the Collector.' In order to find out what'in every other case' means, it is necessary to see what Section 38 enacts. That section says: 'When the person impounding an instrument under Section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by Section 35 or of duty as provided by Section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof and shall send such amount to the Collector, or to such person as he may appoint in this behalf.'
4. Now, in the present instance, this document has been impounded by the Court, as it was obliged to do; but no penalty has been paid nor has duty as yet been paid, consequently this Clause (2) of Section 38 as to 'every other case' does not apply. It comes under Clause (1) of Section 38. It appears to me, however, that if I were to accede to Mr. Jardine's argument, it would be practically submitting the opinion of this Court to that of the Collector and that, I think, is obviously so, because under Section 40 he has power to deal with any instrument sent to him under Section 38, Sub-section (2).
5. I agree with Mr. Lowndes that there is no case in which this course has been adopted when a document which is not properly stamped has been tendered in Court. The novelty of it is no doubt due to the wording of Section 35 of the Stamp Act. The first clause of Section 35 says : ' No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.' That, therefore, prevented the document being received in evidence. Then it goes on : Provided that (a) any such instrument not being an instrument chargeable with a duty of one anna only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees' etc.
6. The effect of that, it appears to me, is perfectly clear and that is, when any instrument not being one of the excepted instruments in Sub-section (a) of Section 35 is tendered in Court, the Court is to accept it and shall admit it as evidence on payment of the duty; and the person tendering it is entitled to compel the Court to accept the instrument if the duty and penalty are paid: and Mr. Lowndes to my mind correctly pointed out that there is not a word in Section 35 which prevents an instrument, which is not absolutely rejected or which comes within the excepted ones, from being admitted on payment of penalty.
7. Mr. Jardine's client, apparently very naturally, is not anxious to pay the very large ad valorem duty that will be charged and it seems to me that this is an attempt to get over the difficulties in his way and give him a locus peritentite by applying to the Collector. We are trying the suit in a Court of law and all 1 am bound to sec is whether this document is admissible or not. As I have pointed out, under Clause (a) of Section 35, if the penalty is paid the party is entitled to say to the Court: 'Now you must accept the document.' In my opinion it would not be proper that the suit should be hung up for a considerable time. I, therefore, must refuse Mr. Jardine's application.
8. Now it will be for him to decide what further course he will adopt.