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agreement does not require a new stamp. (h) But after it has been once executed by both parties, and delivered, if any additional stipula. tion or other material alteration be made, it will require a new stamp; unless it happen to be an immaterial alteration. (i)
4. OF THE EXEMPTION CLAUSE RELATING TO
THE SALE OF GOODS.
Upon the exemption clause in the stamp acts relating to the sale of goods, it has been determined, that a contract for the sale of a quantity of oil in a raw state, and consequently not capable of immediate delivery at the time of sale, is nevertheless within the clause, as being a contract relating to the sale of goods. (k) But where the subject matter of contract does not exist in the state of goods at the time of making the contract, and requires labour and materials to bring it into that state, in that case the contract does not fall within the exemption.(1) A receipt for the price of a horse, containing a warranty, does not require an agreement stamp. (m) An agreement to share in goods purchased by one of the contracting parties on their joint account, does not require a stamp. (n) But an agreement between merchants, that one shall take a share in an outfit of a ship and the adventure, is not an agreement for the sale of goods within the exception; and therefore must be stamped. (0) But an agreement by a broker to indemnify his principal on the re-sale of goods purchased by him, need not be stamped; such agreement being considered as relating to the sale of goods. (p) So, an undertaking to guarantee the payment of goods sold to a third person, is within the exception. (9) And a stipulation for rescinding a former agreement for the sale of goods, does not require an agreement stamp: (r) Again, an unstamped agreement is valid, so far as it relates to the sale of goods, though it contains stipulations unconnected with the contract of sale. (s)
An executory agreement for making and putting up of machines in a house, does not fall within the exception.(t) So, an agreement for the sale of crops growing, is not within the clause of exemption. (v)
(h) Bathe v. Taylor, 15 East Rep. 417, 418. Sanderson v. Symonds, i Brod. & Bing. 426.
(i) i Brod. & B. 426. and see Chitty on Bills, 6 ed. 101, &c.
(k) Wilks v. Atkinson, i Marsh. 412.
(1) Waddington v. Bristow, 2 Bos. & Pul. 452.
() 2 Campb. Rep. 407.
(n) Venning v. Leckie, 13 East Rep. 7.
(7) Warrington v. Furbor, 8 East Rep. 242. Watkins v. Vince, 2 Stark. 368.
(r) Whitworth v. Crockett, ib. 431.
5. OF THE EXEMPTION OF LETTERS PASSING BY POST
BETWEEN MERCHANTS AND TRADERS.
In the case of Mackenzie v Banks, (w) which was an action on the defendant's undertaking to pay the debt of his mother, who was in trade, the debt arose in the course of her business, which the defendant assisted her in carrying on, though without any share in it. The evidence of the undertaking was a letter written by the defendant to the plaintiff. And the question was, whether it ought to have been stamped, as all agreements in writing are required to be by the 23 Geo. III. c. 58. “ whether the writing be only evidence of the contract, or obligatory upon the parties from its being a written instrument;" or whether this letter came within the exception of the 32 Geo. 3. c. 51. s. l., by which it is provided that the first-mentioned act“ shall not extend to make liable to the said stamp duty any letter passing by the post between merchants, or other persons carrying on trade or commerce in this kingdom, residing at 50 miles distance from each other." At the trial, the letter had been received in evidence unstamped by Lord Kenyon Ch. J., and the plaintiff obtained a verdict. But a motion was afterwards made to set aside the verdict, on the ground tha the letter did not fall within the terms of the exception in the latter statute: and it was argued that the defendant was neither a merchant or trader; he had no concern in his mother's business. The letter was not written by him as agent for his mother, in which case, perhaps, the exception might have extended to him, but in his own individual character to pay the debt of another. His promise, therefore, was like that of any other indifferent person. The legislature only intended to protect persons, whose ordinary business led them to write to each other in the course of their own particular callings. A person, who was not a trader, although he wrote a letter concerning some trading contract, would not be within the words or meaning of the exemption. But the Court said, “ It appears in evidence that the defendant did carry on the business for his mother, and that this debt arose in the regular course of the trade. And therefore any letter written by him on account of that very trade, whereby he bound himself to another tradesman, may fairly be construed to fall within the letter and spirit of the act; which meant that the correspondence of merchants and tradesmen at a distance from each other, on the faith of which they had considerable dealings, should not be fettered with stamps."
A letter to a correspondent, requesting him to pay to certain persons or their order 6001. out of the first proceeds that should become due of a stock of gunpowder then in his hands, and to charge the same to ac
(w) 5 Term Rep. 176.
count, is not within the exception of the act, but must be stamped as a bill of exchange, although the letter form part of a subsequent correspondence between the three houses. (t) So, a letter from a principal to his factor, containing bills of exchange drawn upon the latter, and in which the principal promised to provide for the bills if certain goods, then either in the factor's possession or about to be placed in his hands, should remain unsold at the time of the bills falling due, requires to be stamped, and does not come within the exception in the stamp act, as a letter for or relating to the sale of goods; the primary object of such letter not being the sale of goods, but the obtaining of an advance of money on the goods. (y)
(x) Butts v. Swan, 2 Brod. & Bing. 78. Firbank v. Bell, 1 B. & A.36.
(y) Smith v. Cator, 2 B. & A.778.
OF CONTRACTS AND AGREEMENTS DEEMED ILLEGAL
BY THE COMMON AND STATUTE LAW.
LL contracts or agreements which have for their object any thing
which is either repugnant to justice, or in violation of religion or public decency, are void. So, are all contracts made in contravention of the general policy of the common law, or in direct opposition to the provisions of an act of parliament: for er turpi contractu actio non oritur is a rule both in law and equity. (a) And whenever a contract or agreement is entered into with a view to contravene any of these general principles, there is no form of words, however artfully introduced or omitted, which can prevent courts of law and equity from investigating the truth of the transaction. And therefore, in an action upon a bond (6) given for compounding a prosecution for perjury, it was argued in support of the action, that mo averment could be admitted of the bond having been given for such a consideration, because it did not appear in the condition. But to this it was answered by Lord Ch. J. Wilmot, " That the manner of the transaction was to gild over and conceal the truth; and whenever courts of law see such attempts made to conceal such wicked deeds, they will brush away the cobweb varnish, and show the transactions in their true light. This is an agreement to stifle a prosecution for wilful and corrupt perjury, a crime most detrimental to the commonwealth; for it is the duty of every man to prosecute, appear against, and bring offenders of this sort to justice. This is a contract to tempt a man to transgress the law, to do that which is injurious to the community: it is void by the common law; and the reason why the common law says such contracts are void, is for the public good. You shall not stipulate for iniquity. All writers upon our law agree in this, that no polluted hand shall touch the pure fountains of justice. Whoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a court to fetch it back again ; you shall not have a right of action, when you come into a court of justice in this unclean manner to recover it back."
Upon the same principle it has been determined, that if A. promise B. money in consideration that he will not give evidence in a suit depending, such promise cannot be enforced; it being unlawful and iniquitous
(a) See Fonbl. Treat. of Equity, vol. i. (6) Collins v. Blantern, 2 Wils.341.347. bk. 1. c. 4. S. 4. n. y.
See also 1 P.Wms. 156. 220.
for any man to suppress testimony in any cause. (c) So, a promise made by the friend of a bankrupt when the latter was on his last examination, that in consideration that the assignees and commissioners would forbear to examine him touching certain sums which he was charged with having received and not accounted for, he would pay such sums as the bankrupt had received and not accounted for, is void ; as being against the policy of the bankrupt laws: for the intention of the legislature was, that the creditors should have the full examination of the bankrupt as to the state of his effects and the disposition of them; whereas the promise in this case would be to induce the assignees and commissioners to forbear doing their duty. (d) But a covenant by a friend of a bankrupt to pay all his creditors their full debts, in consider: ation that they will not proceed any further under the commission, is lawful. (e) So, an agreement not to move the court against an attorney for malpractices, is illegal and void. (f) But a promissory note given by a party indicted for a misdemeanor, for the amount of the costs and expences of the prosecution, is valid when given after the conviction, and at the recommendation of the court. (g) A contract or agreement must be unlawful at the time of making it, otherwise it cannot be set aside; for it is said, (h) the law knows of no contract but what was good or bad at the time of the contract made; it cannot be one or other according to a subsequent contingency.
In this chapter it will only be necessary to bring before the reader a general view of the cases in which contracts and agreements are declared void by the common law, and those which are prohibited by statute. In considering those which come under the first class, it is hardly necessary to observe, that every contract or agreement which has for its object any thing forbidden by the law of God; as to commit murder, theft, perjury, or other crime, is void by the common law. Therefore, if a man is under an obligation to pay to another 201. if he will kill or rob such a person ; this is a void obligation, and creates no right. (e) The common law also prohibits every thing which is unjust, or contra bonos mores. Therefore, a contract or agreement which is made in contravention of these general principles is void: for instance, if A. promise, in consideration of 20s. paid to him by B., he will pay B. 40s. if he does not beat J. S. out of such a close ; this is illegal and void. (k) So, if A. request B. to beat another, and promise to save him harmless ; this is a void consideration, for the act is unlawful. (1) But it is said, (m) if I request another to enter into B.'s land, and in my name (e) i Leon. 180.
(i) Fitzh. Abr. tit. Obligation, 13. (d) Nerot v. Wallace, 3 Term Rep. 17. (k) 2 Lev. 174. (e) Kaye v. Bolton, 6 Term Rep. 134. (1) Hutt. 56. () i Campb. Rep. 55.
(m) Per Hobart, in the case of Hutton (g) 11 East Rep. 46.
and Winch, Win. 49. (h) Per Cur. io Mod. 67. See also Bul. N. P.146.