*

ment into writing, the writing, and not the parol, constitutes the contract between them. * Where two parties hold a conversation in the morning, and in the afternoon reduce the subject of it into writing, the writing is the contract" (per Pollock, C.B., in Knight v. Barber, 10 Jur. 929; 16 Mees. and W. 66).

From what has just been mentioned, it is evident that a plaintiff relying upon oral testimony, where there is a written unstamped contract, runs a great risk, for should his witnesses disclose either on their examination in chief or on their cross-examination that the agreement was reduced into writing, he will be nonsuited, for in such case, as it appears there is a written agreement, and that is the best evidence of the terms of the contract between the parties, it must be produced, duly stamped, by the plaintiff, who is always bound to produce the best evidence in his power. The agreement being unstamped the court cannot look at it, so that the plaintiff has failed to give the best evidence of which his case is susceptible (see Brewer v. Palmer, 3 Espin. 213; Doe v. Morris, 12 East, 237; Roscoe's Evid. pp. 2, 3, 5th edit.).

It is to be observed that in order to compel a plaintiff to produce the written agreement, and to preclude him from giving oral evidence of the existence of the contract, the witnesses must have not merely a vague notion that there is a written agreement in relation to the subject-matter of the action, but that it is between the same persons as are parties to the action (Doe v. Morris, suprà ; Fenn v. Griffith, 6 Bing. 533).

Stamp Acts-55 Geo. 3, c. 184-13 and 14 Vict. c. 97.-The principal statute relating to stamps is the 55 Geo. 3, c. 184, which has, however, as to agreements, been altered so as to reduce the amount of duty payable thereon. By the 55 Geo. 3, c. 184, an agreement, the matter of which was of the value of £20 or upwards, required a stamp of the value of £1, if not containing more than fifteen folios; if more than fifteen folios, £1 15s., and for every entire quantity of fifteen folios, over and above the first fifteen folios, a further progressive duty of £1 5s. The £1 stamp was, by the 7 and 8 Vict. c. 21, reduced to 2s. 6d.. but the progressive duty remained the same. However, by the 13 and 14 Vict. c. 97, the progressive duty is reduced to 2s. 6d. By this last act it is

provided that an agreement, or any minute or memorandum of agreement made in England or Ireland under hand only, or made in Scotland without any clause of registration (not charged otherwise than under the head" agreement" in the schedule to the act 55 Geo. 3, c. 184, nor expressly exempted from all stamp duty), where the matter thereof shall be of the value of £20 or upwards, whether the same shall be only evidence of a contract, or obligatory upon the parties from its being a written instrument, together with every

schedule, receipt, or other matter put or indorsed thereon, or annexed thereto, 2s. 6d. And where the same shall contain 2,160 words 30 folios] or upwards, then for every entire quantity of 1,080 words [15 folios] contained therein, over and above the first 1,080 words 15 folios] a further progressive duty of 2s. 6d."

Exempted agreements-No stamp-duty.-There are certain agreements exempted from stamp duties by the 55 Geo. 3, c. 184, and some other acts, the more important of which (contained in the 55 Geo. 3. c. 184) are, firstly, those for the hire of labourers, artificers, manufacturers, or menial servants; secondly, those made for or relating to the sale of any goods, wares, or merchandise; thirdly, letters containing any agreement in respect of any merchandise, or evidence of such agreement, which shall pass by the post between merchants or other persons carrying on trade or commerce in Great Britain, and residing and actually being, at the time of sending such letters, at the distance of 50 miles from each other.

We propose to notice the above exemptions from duty before considering the provisions of the statute imposing a duty.

Hiring of labourers, &c.-Exemption from stamp duty.-The 55 Geo. 3, c. 184, contains, as above stated, an exemption from stamp duty in the case of a "Memorandum or agreement for the hire of any labourer, artificer, manufacturer, or menial servant." It has been held that the assignment of an apprentice is not within the above exemption (Rex v. St. Paul's, Bedford, 6 Term Rep. 452). It has been held that an instrument in the following form is a contract for service by a labourer, and not a contract of partnership, and being within the exemption in the Stamp Act, is admissible in evidence without a stamp :- -"S. W. engages to take charge of the glebe land of the Rev. J. B. B. C., his wife undertaking the dairy and poultry, &c., at 15s. a week to Michaelmas, 1850, and afterwards at a salary of £25 a year, and a third of the clear annual profits after the expenses of rent, rate, labour, and interest on capital, &c., are paid on a fair valuation made from Michaelmas to Michaelmas. Three months' notice on either side to be given, at the expiration of which the cottage to be vacated by S. W., who occupies it as bailiff in addition to his salary (Reg. v. Wortley, 15 Jur. 1137; S. C. 2 C. C. R. 333; 21 Law Journ. N.S., M. C. 44). In this case Mr. Baron Alderson observed, "as there is no distinction made between the highest and lowest servants, down to the boy, so there is no distinction between one grade of labourers and another; the word labourer' includes them all." It has been decided that men engaged as firemen and stokers on board steamers are labourers and artificers within the meaning of the exempting clause in the 55 Geo. 3, c. 184 (Wilson v. Zuluetta, 14 Jur. 366). Such persons are not" seamen," within the meaning of the 7 & 8

Vict. c. 112, which exempts agreements executed in compliance with its provisions from stamp duty.-(Ibid.)

Sale of goods, &c.-Exempt from stamp duty.-The next exemption from stamp duty which we purpose to notice is the case of a "memorandum, letter, or agreement made for or relating to the sale of any goods, wares, or merchandise." There have been many decisions on this clause of exemption, the principal only of which we can here mention. Some of the decisions usually classed under this head of exemption relate to the construction to be put on the fourth and seventeenth sections of the Statute of Frauds, for if the contract relate to an interest in land within the meaning of the 4th section of the Statute of Frauds, it cannot be within the exemption in the Stamp Act, while if the contract be within sec. 17, it must be because it relates to the sale of goods, and then it is brought within the exemption clause of the Stamp Act. This view is borne out by Mr. Tilsley in his work on Stamps (p. 49), though in another place (p. 44) he seems to contradict himself. At the former page he says, "The determination, with reference to the Statute of Frauds, in any case, whether the sale of certain produce of land is a sale of goods and chattels, or of an interest in land, disposes, at the same time, of the question of stamp duty on the agreement, the point in both instances being identical."

An agreement to cancel a former agreement relative to the sale of goods, and for the future sale of goods upon different terms, is exempted from stamp duty. The primary object is, in such cases, the sale of goods, and the cancelling of the former agreement is but a mode of carrying out the intentions of the parties. (Whitworth v. Crockett, 2 Stark. 431.) The general rule is that the exemption from stamp duty is confined to those contracts where the sale of goods is the primary and immediate object. Thus agreements by brokers to indemnify their principals and employers against loss on the resale of goods purchased by them, provided the primary object of the writing is a purchase or sale of goods, and the guarantee or indemnity against loss secondary and subsidiary thereto, do not require a stamp. If a primary object of the written undertaking or guarantee, however, be the obtaining of money upon a pledge of goods, it does not come within the exemption, although it may authorise the party making the advance to sell the goods when they come to hand, in satisfaction and discharge of the sum borrowed. Thus, where a principal, in a letter to his factor inclosing bills for the acceptance of the latter, promised to provide funds for the bills if certain goods about to be placed in the factor's hands should remain unsold at the time of the bills falling due, it was held that this letter did not come within the exemption of the Stamp Act, and could not be given in evidence unless it were stamped with an agree

:

ment stamp, as the primary object of the letter was the obtaining of money upon a pledge of goods, and the sale only a secondary or collateral object. (Smith v. Cator, 2 Barn. and Ald. 778). It is not necessary, in order that a contract should come within the above exemption, that money is to be paid after the delivery of the goods it will be sufficient that the consideration is the cancelling of a precedent debt. In other words, where there is a transfer of the property in goods for a pecuniary consideration, that is a sale of goods, whether they are to be paid for by cancelling a debt or by a set-off. Thus, where C. and W., being indebted to defendant, and being requested by him to supply plaintiff with Roman cement to the value of £48 13s. 10d., and charge the same to the amount of the debt, wrote the following letter to plaintiff:-"On the consideration above-named, we agree to supply to your order, when you shall require it, Roman cement to the amount of £48 13s. 10d.:" held an agreement for the sale of goods within the exemption of the statute 55 Geo. 3, c. 184, sched. part 1, agreement." (Chatfield v. Cox, 16 Jur. 594; S. C, 21 Law Journ., N. S., Q. B. 279). Lord Campbell observed that the above was an agreement relating to the sale of goods, just as much as a guarantee on the sale of goods, which, as we shall see, is exempt from duty.

Guarantees.-As we have seen, contracts and agreements for the sale of goods, wares, and merchandises are exempted from stamps, under which provision it has been held that guarantees for the payment of the price of goods sold to a third party are within the exemption of the statute, and do not require to be stamped (Martin v. Wright, 6 Qu. Ben. Rep. 917; S. C. 9 Jurist, 178; Warrington v. Furber, 8 East, 542). But the insertion in the guarantee of any clause or stipulation having reference to any other matter or thing than goods will render the guarantee subject to a stamp duty, inasmuch as it will not then be within the exempting provisions of the statute (per Lord Denman in Martin v. Wright, suprà; Wharton v. Walton, 9 Jur. 638, S. C. Qu. Ben. Rep. 474). The following document has been held to be within the exemption of the Stamp Act, relating to the sale of goods, wares, and merchandise":"Gentlemen, in consideration of your consigning to my friends, Messrs. H. and Co., of Calcutta, sixteen casks of sherry wine, and engaging to pay me one per cent. on the amount of the proceeds, I hereby agree to guarantee you the proper sale of the said wines, and the payment of the proceeds in due time.-J. G." (Saddler v. Johnson, 16 Mees. and Wels. 775). The Court of Exchequer admitted that in cases of this kind it was difficult to draw the precise line, adding that as the exemption in the Stamp Act is for the purpose of protecting commerce, a liberal construction should be put upon it. It was admitted that the above contract in some degree related to the

66

conduct of the parties who were to sell the goods, but, it was said, that was only part of the machinery by which the sale was to be effected.

Contracts not confined to goods.—If the agreement be an entire contract for something more than a sale of goods, it is not within the exemptions of the statute dispensing with a stamp. Thus, where a writing when produced in evidence purported to be an agreement for the sale of two flies (carriages)" at £60, the sum of £5 to be paid down, and the remainder of the money at three months from the date, harness and goodwill included in the above agreement;" it was held that as this was an entire contract for the sale of the goodwill of the business as well as of the chattels specified, it could not be received in evidence without a stamp (South v. Finch, 4 Scott, 293; S.C. 3 Bing. N.C. 506). This decision has been supported and made the foundation of a case which, as it is a sort of leading case on the subject, deserves to be here noted. In the case thus referred to, it appeared that the defendant directed the plaintiff, who was possessed of a patent for furnaces, to send him " a license to use two of his patent furnaces, to be applied to, &c., for £21 as agreed, the engineers or furnace-builders' time to superintend or fix the above order to be paid six shillings a day." Held, first, that this was an agreement within the provisions of the Stamp Act, 55 Geo. 3, c. 184. Held, secondly, that it was an agreement for the purchase of the license to be used for the purposes agreed upon. Held, thirdly, that if it were for the purchase of the furnaces instead of the license, the price of the furnaces was properly sued for, under the count for work and labour in setting them up, and not under a count for the sale of goods and chattels; and, therefore, that the agreement for such purchase was not an agreement for the price of goods, wares, and merchandise; and, therefore, not within the exemption of the Stamp Act; and, consequently, that the agreement could not be given in evidence unless it were stamped (Chanter v. Dickinson, 2 Dowl. N. S. 838; S.C. 6 Scott, N. R. 182; 7 Jur. 89). Tindal, C.J., in his judgment, said: “Then the next question is, does the thing sold here come under the denomination of goods, wares, and merchandises? Part of the stipulation is that the defendant should have a license, and the words are As a patent right," and I cannot see why those words are left in, unless the defendant was to use this as a patent right. There does not appear to have been any specific license sent, but then another direction is, that the patentee shall send the furnaces; in that case the defendant does not want any formal license. I think, therefore, that this was a purchase of an article with a license to use it. Then I think again that the article sold is not goods, wares, and merchandises; it is not an order or agreement for some small article to be removed again; but it evidently means that the thing agreed