Vide ante,

in evidence, must be proved either by the sub- Ch.II. f. 1. scribing witness, or by the means before pointed out, and care should be taken that a proper agreement stamp is impressed upon it, otherwise it will not be admitted in evidence.

96.

Stamp

Agreements.

By statute 23 Geo. III. c. 58. s. 1. a stamp duty of 6 s. is laid "on every skin or piece of Duties on vellum or parchment, or shect or piece of paper upon which any agreement shall be ingrossed, written, or printed, whether the same shall only be evidence of the contract, or obligatory upon the parties, from its being a written instrument;" and by subsequent Statutes additional Dutics are imposed.

The 4th section of the first Act provides that the duty shall not extend to any memorandums or agreements of the following description, viz.

1st. Any memorandum or agreement for any lease at rack rent, of any messuage under the yearly rent of 5 l.

2d. For the hire of any labourer, artificer, manufacturer, or menial servant.

3d. For or relating to the sale of any goods, wares, or merchandizes,

4th. Where the matter of memorandum or agreement shall not exceed the sum of 20

5th. Or any memorandum or agreement made in Scotland, that shall be stamped with the duty required on deeds in Scotland.

A further provision is made by the statute 32 Geo. III. c. 51. by which it is enacted that

the

Part II.
Stamp
Duties.

the duty shall not extend to any letter or letters passing by the post between merchants or other persons carrying on trade or commerce in this kingdom, and residing at the distance of 50 mites from each other, for or by reason of such letter or letters containing an agreement in respect of any merchandize, notes, or bills of exchange, or evidence of such an agreement; but that such letter or letters may be evidence of such agreement as aforesaid, though the same be not stamped.

But it is provided that this last Act shall not extend to any letter or correspondence passing between persons who are residents of the same town or city, nor to any letter or correspondence written, or so passing between persons not at the time of writing or sending thereof at the actual distance of 50 miles from cach other (a).

It

The first of these Acts of Parliament is so extensive in its operation, and the cases exempted so clearly expressed, that but few Carry v. questions have arisen on its construction. Edensor, has been held that a written agreement by a 3 T. Rep. broker who buys goods for his principal, to indemnify him from any loss by the resale,

524.

(a) By 42 Geo. III. c. 98. fchedule (A.) the old duty is repealed, and a duty of 16s. imposed, "where the length of the agreement does not exceed 30 common law sheets, and a further duty of 16s. for every additional common law sheet. The same exemptions are continued as are in the stats. 23 and 32 Geo. III. except that relating to agreements made in Scotland, which are subjected to other duties by the last Act.

necd

Stamp Duties.

need not be stamped, it being a contract re- Ch. II. ft. lating to the sale of goods, and therefore exempted by the 4th section of the Act. But an agreement for things which are not in ex- Buxton v. Bedal, 3 istence at the time, as for machines to be East. 303made, or for the sale of all the hops which Wadshall be grown upon a certain number of acres Bristow, 2 of land to be delivered in pockets at a certain place, does not fall within the exception; for in the first instance, the work forms a part of the contract; and in the other, the vendee takes an interest in the profits of the vendor's land.

dington v.

Eos. & P.

452.

zie v.

176.

On the Act of the 32 Geo. III. it has been Mackenholden that, if a son, managing his mother's Banks, 5 trade, write a letter to a creditor residing above T. Rep. 50 miles from him, thereby promising to pay the debt, such letter is exempted, as being between persons carrying on trade.

Robinbrough, 6

son v. Dry.

The Stamp Office having fixed upon different dies, to denote the different denominations of stamps, no other but that appointed for the instrument which is to be produced in evidence, will be sufficient to give it validity. An agreement stamp will not do for a deed' or lease not under seal, though of equal value. But by statute $7 Geo. III. c. 136. instruments stamps of different denominations, but of greater or equal value than the proper stamp, may, on payment of the duty, and 5. penalty, wicke v. be stamped with the proper stamp. Instruments unstamped, or on stamps of 735 Vide less value, may be stamped on payment of the

on

T. Rep. 317.

semb.

Goodtitle

dem. Est

Way.

1 T. Ren

pot. 244.

duty,

Part II.
Stamp
Duties.

Statute of
Frauds.

Sect. 4›

duty, and 10. penalty for each skin; and if written on unstamped paper, and it shall appear to the commissioners by oath or affirmation, that it was so written by accident, inadvertency, urgent necessity, or unavoidable circumstances, and without intention of fraud; the commissioners are authorized, within 60 days after the making of the instrument, to remit the penalty, or such part as they may deem proper (b).

Bills of exchange and promisory notes are excepted from the operation of these clauses, being provided for in a manner of which I shall hereafter take notice.

By the rules of the Common Law every contract might be proved by parol evidence; but by the statute 29 Cha. II. c. 3. commonly called the Statute of Frauds, it is enacted, That no action shall be brought whereby,

1. To charge any executor or administrator, upon any special promise, to answer damages out of his own estate.

2. Or to charge the defendant to answer for the debt, default, or miscarriage of another.

3. Or to charge any person upon any agreement made in consideration of marriage.

4. Or upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning the same.

(b) The stat. 42 Geo. III. c. 48, f. 24, grants a similar indulgence in case the instrument be brought to the office within 12 months.

Frauds.

5. Or upon any agreement that is not to Ch. II. f. 1. be performed within one year from the making Statute of thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, signed by the party to be charged therewith, or by some other person, by him thereunto lawfully authorized.

And, further, That no contract for the sale Sect. 17. of any goods, wares, and merchandizes, for the price of 107. sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same; or give something in earnest, to bind the bargain, or in part of payment; or that some note or memorandum, in writing, of the said bargain, be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized (c).

The first provision of this statute as to executors, &c. is so plain, that no serious question has ever yet arisen, nor probably ever will arise, on the construction of it: but what shall be deemed a promise for the debt of another, has often been the subject of controversy.

(<) It has lately been determined that in cases falling within the 4th Section of this Act, both the consideration and the promise must be set down in writing, and signed by the party to be charged therewith. Wain v. Warlters, 3 East. 10. But in the cafe mentioned in the 17th clause it is sufficient if the note signed by the person to be charged with it state the promise, the consideration need not be mentioned. Egerton v. Matthews, 6 East. 307.