Stamps on and mariners of any ship or vessel for wages on any voyage Agreements. coastwise, from port to port in the United Kingdom."

Stamp governed by the legal effect of the instrument.

Sect. 36 of the Act enacts that "the duty of 6d. upon an agreement may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the agreement is first executed."

Where an agreement is under seal it will bear, not the agreement stamp of 6d., but the deed stamp of 10s., or such other stamp as is provided in the schedule to the Act according to the nature of the instrument.

What are Agreements within the Stamp Act, 1870.]— The stamp to be affixed to an instrument is to be determined by the legal effect of the instrument, and not by the form which has been given to it by the erroneous opinion of the parties respecting its operation. Thus, on the one hand, an instrument assuming the language of a conveyance, but which, from its not being under hand and seal, operated simply as an agreement, has been held to be suffi ciently stamped with an agreement stamp; while, on the other hand, an instrument in terms expressive as an agreement, but which in point of construction was adjudged to be a surrender, has been held to require the stamp applicable to a surrender. An instance of the former kind is afforded by the case Inhabitants of of The King v. Inhabitants of Ridgwell, 6 B. & Cr.

The King v.

Ridgwell.

665; 9 Dowl. & Ryl. 678, where, in order to establish a derivative settlement for a pauper, an instrument to the following effect was offered in evidence, bearing a 20s. agreement stamp. It was intitled-An agreement made, &c., between A. B. the elder, of the one part, and A. B. the younger, of the other part; whereby A. B. the elder, in consideration of the affection which he bore to his son A. B. the younger, and for the further consideration of 197. 19s., did absolutely remise, release, and for ever quit claim unto his son A. B. the possession of a moiety of a certain tenement (describing it), To hold to his said son, and to his heirs and assigns, for ever; concluding as follows:"And I the said A. B. the elder, nor my heirs, nor any other person or persons for me or them, or in my or their names, or in the right or stead of any of them, shall or will, by any ways or means hereafter, have, claim, challenge, or demand any estate,

right, title, or interest, be it by last will or testa- Stamps on ment, or otherwise of, in, or to the said premises, Agreements. or any part or parcel thereof; but from all and every action, right, title, interest, or demand of, in, or to the said premises, or any part thereof, they and every of them shall be utterly excluded and barred for ever." It was contended, that, as the parties intended this instrument as an instrument of conveyance, it ought to have borne the stamp of 17. 10s. imposed by the statute of 44 Geo. 3, c. 98, on every deed, instrument of conveyance, &c.; but the Court held that the stamp was sufficient, and that the instrument was receivable in evidence. See also Wilmot v. Wilkinson, 6 B. & Cr. 506; S. C., 9 D. & R. 620.

This

Sawyer.

A case supplying an example of an instrument in Williams v. terms expressed as an agreement, but which was construed to be, and therefore required to be stamped as, a surrender, is Williams v. Sawyer, 6 J. B. Moore, 226, where a written agreement was given in evidence, by which P. agreed to deliver up the immediate possession of the principal part of the farm he held to his lessor (the plaintiff), who, in consideration thereof, agreed to purchase the stock, &c., and to make compensation for the fallows, which the plaintiff was to enter upon immediately, and P. was to be permitted to hold one-half of the barns, &c. for three months. instrument was stamped with an agreement stamp of 208.; but it was objected, that as, in point of fact, it amounted to a surrender of the term, it required a stamp of 17. 15s. by the statute 55 Geo. 3, c. 184. On the other side it was contended, that, although no precise form is necessary to show a surrender in terms; yet, in order to constitute such surrender, the whole possession must be given up at the time; and here, as P. was allowed to remain in possession of part of the farm, it was a mere agreement, and not a formal surrender. But the Court was of opinion that the instrument operated as a surrender, and therefore the objection to the stamp was well founded.

The clause in the Act in terms extends to every What agree

Stamps on

memorandum of an agreement under hand only, Agreements. whether the same be only evidence of a contract, or ments within obligatory upon the parties from its being a written

the Stamp

Act.

instrument. Upon similar words in the stat. 23 Geo. 3, c. 58, Lord Kenyon, in Robinson v. Drybrough, 6 T. R., at p. 319, observed, that an agreement, though not under seal, may be declared on specialty, in which case it may be said to bind the parties by its own force, or the plaintiff may, in some instances, declare generally, and give the written contract in evidence. The statute was, therefore, thus particularly penned to obviate any objection which ingenuity might raise to creep out of it. A perfect agreement in writing therefore requires a stamp, and, whether stamped or not, excludes parol evidence, although the agreement which it evidences might have been made without writing. See Hearne v. James, 2 Br. C. C. 309; Bowen v. Fox, 2 Man. & Ry. 167; and ante, p. 344. But if the writing is a mere memorandum to prevent mistakes, and not so framed and signed as to exclude parol evidence of the matters contained in it (infra, p. 386), though even then it cannot be produced as evidence without a stamp, yet it may be referred to by a witness in order to refresh his memory. See Catt v. Howard, 3 Stark. 3; Maugham v. Hubbard, 2 Man. & Ry. 5; 8 B. & Cr. 14. In Ramsbottom v. Tunbridge, 2 Mau. & S. 434, an unsigned paper, delivered by an auctioneer to the lessees at a letting by auction, was offered in an action for use and occupation in proof of the terms, and an objection was taken that the paper could not be read for want of a stamp, and that it excluded parol evidence. The objection failed; but it does not clearly appear from the report whether the paper was admitted as evidence, or whether the decision was that it did not exclude oral evidence. In the case of Ramsbottom v. Wortley, ib. 445, the circumstances were the same, except that the memorandum was signed by the auctioneer, but did not contain the lessor's name, and was therefore not binding within the Statute of Frauds. Per Dampier, J.: "This may not be such a memorandum of the contract as would satisfy the

Statute of Frauds, but it is such a memorandum of Stamps on the agreement as requires a stamp. It is not evi- Agreements. dence of the entire contract, but it is a memorandum signed by the agent of one of the parties, and surely that is evidence of the contract." See also Stevens v. Pinney, 2 J. B. Moore, 349; Brewer v. Palmer, 3 Esp. 213; Drant v. Brown, 2 Dowl. & Ry. 582; S. C., 3 B. & Cr. 665; Doe d. Brigham v. Cartwright, 3 B. & Al. 326; Hawkins v. Warre, 5 Dowl. & Ry. 512; S. C., 3 B. & Cr. 690.

In Vaughton v. Brine, 1 Scott, N. R. 258, which Resolution was an action against a company for salary due to books of a the plaintiff for services as a clerk, the plaintiff company. produced in evidence an unstamped resolution of the company for employing him at a certain salary, which was admitted. See Lucas v. Beach, Ib. 350.

Where a notice of dissolution of partnership was produced to prove that a partnership had subsisted, Lord Ellenborough, C. J., in answer to an objection for want of stamp, said: "a stamp is necessary where the instrument is used directly as an agreement, but not where it is introduced merely incidentally; otherwise it would be necessary to stamp all papers. This was only used as evidence of an acknowledgment by the defendants of a partnership having subsisted between them:" Wheldon v. Matthews, 2 Chitty, 399. See Frazer v. Bunn, 8 Car. & P. 704. And a title which arises out of a state of facts, independently of any express contract which is reduced to writing, may be proved independently of the writing. See Rambert v. Cohen, 4 Esp. 213; Manley v. Peel, 5 Esp. 121; Haigh v. Brooks, 3 Per. & D.

452.

agreement

An unstamped instrument is capable of being Unstamped made available by stamping (Stamp Act, 1870, s. 15), recognised and therefore has value, and may be recovered in for some trover: Scott v. Jones, 4 Taunt. 865.

purposes.

fraud, &c.

An unstamped instrument may be looked at to Proof of show fraud or illegality: Gregory v. Fraser, 3 Camp. 454; Keable v. Payne, 3 Nev. & P. 531; Coppock v. Bower, 4 M. & W. 361; Holme v. Sixsmith, 7 Ex. 802; S. C., 21 L. J., Ex. 313; or forgery: Rex v. Castle Morton, 3 B. & Al. 589. As to when an un

B.-VOL. I.

C C

Agreements.

Stamps on stamped instrument is inadmissible in criminal cases, see 3 Stark. Ev. 1382; Keable v. Payne, 3 Nev. & P. 531.

Proposal, or prospectus,

&c.

Writings held not to amount to agreements.

ment.

An unstamped estimate and proposal for building, which was not finally acceded to, was allowed to be read for the purpose of reducing the plaintiff's claim according to his own estimate: Penniford v. Hamilton, 2 Stark. 475. So a printed prospectus, by which the plaintiff offered his services on certain terms, was allowed to be read in an action upon a parol contract entered into with reference to those terms: Edgar v. Blick, 1 Stark. 464. See also Clay v. Crofts, 20 L. J., Ex. 361.

It is clear, however, that a writing which neither amounts to an agreement, nor is offered as evidence of an agreement, properly so called, that is to say, a promise founded on a consideration, does not require Acknowledg- an agreement stamp. Thus in an action for not returning bills, the following memorandum, signed by the defendant, was admitted, though unstamped:"I have in my hands three bills, which amount to 1207. 10s. 6d., which I have to get discounted, or return on demand." It was a mere acknowledg ment, and created no other contract than that which the law implied: if the defendant had bound himself to get the bills discounted, it would have been different: Mullett v. Hutchinson, 1 Man. & Ry. 522; 7 B. & Cr. 639; Langdon v. Wilson, 2 Man. & Ry. 10; 7 B. & Cr. 640. So a bought note of shares in a company, sent by a broker to his principal, was admitted to prove that the defendant (the broker) had made a certain representation to the plaintiff (the purchaser) as to the sum paid on the shares: Tomkins v. Savory, 4 Man. & Ry. 538; 9 B. & Cr. 704. So no stamp is required upon an authority by a surety, to give time to the debtor; Hill v. Johnson, 3 Car. & P. 456; or an authority to sell goods and appropriate the proceeds; Humphreys v. Briant, 4 Car. & P. 157; to pay money simply; Parker v. Dubois, 7 Car. & P. 406; 1 M. & W. 30; Hutchinson v. Heyworth, 1 Per. & D. 266; S. C., 9 A. & E. 375; or an acknowledgment of having received money by a bill for a particular