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them, and pay the proceeds to a third person, in discharge of a named sum due for freight (y).
A mere attornment to a party who succeeds the landlord in title, not containing new terms, may not require a stamp; but where A. was tenant of premises under a lease granted by B., against whom a sequestration issued out of Chancery, and A. then signed the following instrument :-"I hereby attorn and become tenant to C. as sequestrator, and to hold the premises for such time, and on snch conditions, as may be subsequently agreed upon;" it was held, that this was a new agreement to become tenant, and required a stamp (z). But an instrument in these terms :-"I hereby certify that I remain in the house No. 3, Swinton Street, belonging to W. G., on sufferance only, and agree to give him immediate possession at any time he may require," was held to be a mere admission that the house belonged to W. G., and not to amount to an agreement for a tenancy, so as to require a stamp; Lord Abinger, C. B., observing, “it appears to me that this was a mere admission that the house was the house of Goodman, and that he, the plaintiff, had no interest whatsoever in it; as to the agreement to give it up, that followed as a matter of course, no stipulation to give it up was necessary (a).
In ascertaining what is an agreement within the meaning of the statute, attention must also be directed to this inquiry; viz. what is the primary or leading object or feature of the instrument. Although an instrument may appear at first sight to be an agreement, yet in its legal character or effect it may be otherwise. Thus a demise by memorandum in writing not under seal is to be viewed as a lease, not as an agreement, and should be stamped accordingly (b). So an instrument in the following words :-" I have received the sum of 201. which I borrowed of you, and I have to be accountable for the said sum with interest," was held to be an agreement and not a promissory note (c). And a memorandum—“ I acknowledge to owe M. 361., which I agree
(y) Humphreys v. Briant, 4 C. & P. 157.
(z) Cornish v. Seurell, 8 B. & C. 471.
(a) Barry v. Goodman, 2 M. & W. 768.
(6) Goodtitle v. Way, 1 T. R. 737 ; see Chitty, Stamps, 182. Post, Index, Landlord and Tenant, as to the dis
tinction between a present demise, and an agreement to let in futuro ; and Chapman v. Bluck, 4 Bing. N. C: 187; Hurtshorne v. Watson, 5 Bing. N.C.477 ; Alderman v. Neate, 4 Mee. & W. 719.
(c) Horne v. Redfearn, 4 New Cases, 433 ; 6 Scott, 260, S. C.
to pay as soon as my circumstances will permit,” is exempt from duty as a writing made necessary by Lord Tenterden's Act, 9 Geo. IV. c. 14, s. 8, it being used merely for the purpose of barring the statute of limitations, the debt itself being proved by other evidence (d). And although, as we shall shortly notice, a contract for or relating to the sale of goods need not be stamped; yet if the main object of the agreement be the obtaining money upon a pledge of goods, though the sale of them be a subordinate term, the instrument must be stamped (e). So if a bill of exchange express the terms of an agreement between the parties relative to the sum, an agreement stamp is necessary (f). Upon the same principle, if the primary intention of the parties to an indenture were that the instrument should be a lease, it should be stamped as such ; though as regards the defendant, a third party thereto, it is only a deed with a covenant to pay rent, he being no party to the demise (g).
2. OF STAMPS IN CASE OF SEVERAL AGREEMENTS.
Of several stamps upon one instrument.
ferred to by a distinct parol contract. The stamp act imposes a duty upon each agreement in writing (h); and if there be several distinct contracts, each of 201. value (i), between the same or different parties, upon one paper, there must be a separate stamp on that paper (k) for each agreement. Thus an instrument containing several distinct demises to different persons, reserving a separate rent from each, must be stamped according to the aggregate of the stamps required for the several demises (l). The legal construction and effect of such
(d) Morris v. Dixon, 4 Ad. & E. and the purchaser entered into one 845.
memorandum agreeing to buy them, (e) Smith v. Cator, 2 B. & Ald. 778. and it was held that as each lot was
) Nicholson v. Smith, 3 Stark. R. for less than 20l. no stamp on the 128; Smith v. Nightingale, 2 id. 375; memorandum was requisite; sed vide Ayrey v. Fearnsides, 4 M. & W. 168; Dykes v. Blake, 6 Scott, 320; 4 New Wise v.
Charlton, 4 Ad. & E. 786; Cases, 463, S. C. in that case the instrument was al- (k) Rer v. Reeks, Ld. Raym. 1446; lowed to operate as a note and a Stra. 716, S. C. mortgage, being stamped as both. (1) Doe v. Day, 13 East, 241 ;
(8) Price v. Thomas, 2 B. & Ad. Boase v. Jackson, 6 Moore, 480; 3 B. 218.
& B. 185, S. C.; Waddington v. Fran(h) As to stamping one of several cis, 5 Esp. R. 182 ; Chitty, Stamps, 16, letters, ante, 114.
&c. A demise to one party of different Roots v. Lord Dormer, 4 B. & premises, at distinct rents, requires but Ad. 77. In this case several lots were one stamp, if it was bona fide but one at an auction separately knocked down, transaction, Bouse v. Jackson.
an instrument are, that each party is severally, not jointly, responsible; and there is no community of interest or subject matter. If, however, there be but one subject matter for an agreement, and each party's interest relate to such subject matter, so that the contract substantially relates to and comprehends but one transaction, although in respect of the contractors each subjects himself to a separate liability, or consults his own interests only, one stamp will suffice. Thus an agreement by several persons for a subscription to one common fund, or for one common purpose, which each is interested, though not jointly, although several as to each, requires but one stamp (m). As in the instance of an agreement as to prize shares (n), or a submission by several underwriters to arbitration of a disputed claim on a policy (o). So where A., B., and C. severally and respectively undertook, in consideration of E. discharging a debt of 2001. due from F., to indemnify E. to the extent of 501. from each, to be paid severally, together with a fourth part of the costs ; and they further undertook severally to execute a certain bond, it was held one stamp was sufficient (p).
And a deed by which an apprentice was bound for seven years, viz. to A. for four years, and to B. for three years, to learn different trades, being but one transaction, was held to require one stamp only (9). In Wise v. Charlton (r), an instrument was allowed to operate as a promissory note and also as a mortgage, it having been duly stamped as both.
Where an agreement is complete, any further agreement in writing between the parties, even upon the same paper, and although it has a direct and express reference to the first contract, must be stamped. As if there be a written agreement for a wager, and then by another memorandum indorsed upon the first contract, the parties consent that the bet shall be doubled, the second memorandum requires a stamp(s). It seems that if the first contract be left in full operation, and be not varied or affected by the second, the stamp upon the paper will suffice for
(m) Davis v. Williams, 13 East, 232; Bowen v. Ashby, 1 New R. 274; Cook v. Jones, 15 East, 237.
(n) Baker v. Jardine, 18 East, 235, n. (5); 238, n. (a).
(o) Goodson v. Forbes, 6 Taunt. 171; 1 Marsh. 525, S.C. See Chitty, Stamps, 18, 21; 4 Camp. 80.
(p) Ramsboltom v. Davis, 7 Dow). 173; 4 M. & W. 584; Annandale v. Pattison, 9 B. & C. 919.
(9) Rer v. Louth, 8 B. & C. 247; 2 Man. & R. 273.
(r) 4 Ad. & E. 786.
proof of the first agreement. Thus, in the above instance, the first wager might perhaps be proved upon the first memorandum, although the second were not stamped (t). But where parties enter into a written agreement duly stamped, and write on the face, or even indorse terms on the back of it, varying the original agreement, such new terms will not be admissible in evidence without a fresh stamp, and the new contract, or introduction of such fresh terms, must be considered as putting an end to the first contract; and therefore the plaintiff cannot recover upon either, the second being unstamped. This was decided in Reed v. Deare (u). The Court there said, that they would look at the second unstamped contract, to ascertain whether it related to the subject matter of the action. And Littledale, J. observed, that he thought the rule would be the same, even if the further contract, varying the first, were upon a different paper. But the re-executing a release to a witness before delivery does not render a fresh stamp necessary (2).
We have before observed, that if a parol agreement be made, expressly referring to a former written contract, as to take premises “ upon the terms of a former demise,” &c., the written instrument must be produced, and cannot be read unless it be stamped, although it was not made between the same parties (y).
In an action by a builder for extra work to a house and premises, that is, for work done beyond and independently of a written contract for rebuilding the house at a certain sum, it appeared, on cross-examination of the plaintiff's witnesses, that the written instrument, which was in court, was unstamped. Lord Tenterden held that the plaintiff could not proceed, without putting the original written agreement regularly in evidence; and the plaintiff was nonsuited. A motion was made in the following term to set aside this nonsuit, but the Court refused the rule. Parke, J. intimated, that in this case the production of the written contract might be of great importance, even with respect to the extra work, as furnishing some evidence between the parties as to the rate at which work should be paid for. Lord Tenterden, C. J. observed, with respect to the argument that the judge
(t) Robson v. Hall, Peak, R. 128.
(u) 7 B. & C. 261; 6 East, 309; 9 id. 351. As to effect of adding a name to a joint and several note, see Callon v. Simpson, 3 Ner. & P. 248, 8 Ad. & E. 136, S. C.
(r) Spicer v. Burgess, 1 C. M. & R. 129. In that case it was doubted whether one stamp on a release to two witnesses was sufficient.
(y) Ante, 119. As to reading an unstamped proposal, id.
might look at the agreement to see whether it referred to the items claimed to be recovered independently of it, that the inconvenience of such a course would be very great; as it might impose upon a judge the necessity of looking repeatedly through a long agreement, to see whether it contained provisions applicable in any degree to fifty or sixty items, which a party claimed to recover independently of it (z).
3. Of the OMISSION TO STAMP AN AGREEMENT.
Effect of the omission to stamp an agreement.
Of restamping. An agreement in writing is not absolutely void because it was not stamped when it was made. The statutes merely provide that the instrument shall not be admissible in evidence at law, or in equity, unless it be stamped when produced (a).
An unstamped agreement cannot be read in evidence, so as to have any legal operation in assisting to establish a claim, although it has expired, or has relation to third parties only (6).
If, in an action, it clearly appear on the plaintiff's own showing, or on cross-examination of his witnesses, that there is a written agreement between the parties, which has direct reference to the subject matter of the action, and contains the whole or some of the stipulations of the parties upon the matter (c), the instrument must be produced by the plaintiff duly stamped. Thus, in an action for use and occupation, &c., it appearing upon the plaintiff's case, that there was a written demise of the premises between the parties, the plaintiff was nonsuited for not producing it stamped; for it might contain stipulations which would defeat the action, and was the best evidence of the terms of holding (d). But if the plaintiff can get through his case without showing
(z) Vincent v. Cole, 1 M. & M. 257; Rex v. Pendleton, 15 East, 455. The 3 C. & P. 481, S. C. Recognised by court may look at the instrument, to Parke, J. in Fielder v. Ray, 6 Bing. ascertain whether it relates to the sub336.
ject-matter, or is properly stamped, (a) Chitty, Stamps, 41; Rex v. when, vide id., and Jardine v. Payne, Chester, Stra. 624 ; 6 Mod. 364, S. C.; 1 B. & Ad. 670, per Tenterden, C. J.; 23 Geo. 3, c. 58, s. 12. See per Ten- Gregory v. Fruser, 3 Camp. 454. terden, C. J., Jardine v. Payne, 1 B. (d) Brewer v. Palmer, 3 Esp. R. & Ad. 670; see post, 128, note (1). 213; Hodges v. Drakeford, 1 New R.
(6) Rer v. Bedford, 6 T. R. 452; 273; Fenn v. Griffiths, 6 Bing. 533; Turner v. Power, 7 B. & C. 625. 4 M. & P. 299, S. C.
(c) See Doe v. Morris, 12 East, 237;