re-stamping, nor payment of further duty or penalty, except in cases where the stamp or stamps used on such instrument, shall have been specially appropriated to any other instrument, by having its name on the face thereof, as in the case of receipt stamps.

Re-stamping appears to be necessary, 1st, where the stamp on the instrument has been used, and has performed its office, and is intended to be applied to a new object; and 2dly, where there has been a material alteration of the instrument after it was complete, (by consent), varying the original intention of the parties (d).

4thly. OF EXEMPTIONS FROM THE STAMP DUTIES.-The statute 55 G. 3, c. 184, Schedule Part I., title Agreement, exempts from the stamp duty :

:

Any memorandum or agreement for granting a lease or tack at rack rent (e), of any messuage, land or tenement under the yearly rent of 51.:

Or for the hire of any labourer, artificer, manufacturer, or menial servant (f) :

Or made for, or relating to the sale (g) of any goods, wares, or merchandise (h):

Or made between the master and mariners of any ship or vessel for wages, on any voyage coastwise from port to port in Great Britain (i):

And letters containing any agreement, (not before exempted,) in respect of any merchandise, or evidence of such an 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 fifty miles from each other (k).

(d) Chitty Stamps, 22 to 33, and cases there cited; 3 Chitty Com. L. 178; Chitty on B., index tit. Alteration; post, index, tit. Alteration, 1 Phillipps, Ev. 4th ed. 546. Making a joint contract, several also, is a material alteration, Perring v. Hone, 2 C. & P. 401; 12 Moore, 135, S. C.

(e) This does not apply to an agreement for a building demise for less than 5l. per annum rent. See Doe v. Boulcot, 2 Esp. R. 595.

(f) Aliter as to the assignment of

an apprentice, Rex v. Ditchingham, 4 T. R. 769; Rex v. St. Paul's Bedford, 6 T. R. 452.

(g) Except by deed, ante, 92.

(h) Or transfer, &c. of ships, 6 G. 4, c. 41.

(i) Agreements between master and mariners for wages on any voyage, liable only to a duty of two shillings, 7 & 8 G. 4, c. 56, s. 17.

(k) See 32 G. 3, c. 51, Mackenzie v. Banks, 5 T. R. 176.

In regard to agreements for the sale of goods, it is observable that the words of the act are very comprehensive, and include not only contracts directly "for the sale of goods," but also such as "relate thereto." Therefore, a guarantee for the due payment of the price of goods to be sold to a third person (1); or an indemnity by a broker to his principal, against a loss on a re-sale (m); and an agreement to take a share of goods bought, and pay for them at a future time (n); or to cancel an agreement for sale, and make a new arrangement (o); and a warranty of soundness contained in a receipt for the price of a horse sold (p); fall within the exception. And in these cases it is not material that the memorandum contains a detail of terms as to payment (q); or, if the chief and primary object be the sale of goods, that there are also comprised in the instrument subordinate stipulations as to other things not strictly connected with the sale (r). We have already remarked that the primary object must be the sale of goods; and therefore a contract, the main design of which was the procuring money upon a pledge of goods, must be stamped (s). And an agreement between merchants that one shall take a share in the outfit of a ship, and the adventure, was held not to be an agreement within the exception (t).

It is observable that the statute alludes to goods, wares, and merchandise only. It seems that a contract strictly for the manufacture of goods, and the supply of materials, was not, until the recent act of 9 G. 4, c. 14, s. 7, 8, within the exemption (u). In regard to the sale of growing and other crops, it would seem, that whenever the contract is to be considered a contract for the sale of goods unconnected with an interest in land, no stamp is necessary; but that when the agreement is to be viewed as conferring an interest in land, or relating thereto, then a stamp is essential, to give the instrument operation at the trial (x). A

121, ante, 97.

(s) Ante, 97.

(t) Leigh v. Banner, 1 Esp. R. 403. Contracts for transferring a ship are exempted by 6 G. 4, c. 41.

(u) Buxton v. Bedall, 3 East, 303; Wilks v. Atkinson, 6 Taunt. 11; post, 106; see Boydell v. Drummond, 11 East, 150; post, 106.

(x) Waddington v. Bristow, 2 B. & P. 451; Parker v. Staniland, 11 East, 362. See the latter cases, post, Iudex, tit. Crops.

contract for fixtures does not fall within the exemption (y). But an agreement to supply a house and buildings with water by means of pipes, to be laid in a certain manner, and to a certain height, is an agreement relating to the sale of goods within the exception (~).

The 9 G. 4, c. 14, s. 8, provides, that "no memorandum or other writing made necessary, by that act shall be deemed to be an agreement, within the meaning of any statute relating to the duties of stamps." The former parts of the act require that writing shall be necessary in the instances of promises, or acknowledgments, (except by part payment,) to take a case out of the Statute of Limitations; of confirmations by adults of contracts made during their infancy; of representations or assurances as to the character or credit of a third person, in order that he may be trusted; and of contracts for work to be done, and materials to be provided in manufacturing goods. Contracts for these purposes do not therefore require to be stamped.

(y) Wick v. Hodgson, 12 Moor, 43; and see Hemming v. Perry, 2 M. & P. 375.

(2) West Middlesex Water Works Company v. Suwerkropp, M. & M.

408.

107

CHAPTER II.

OF CONTRACTS WITH PARTICULAR PERSONS.

SECTION I-With Persons incompetent to Contract; or protected from Liability on their Agreements.

1. In general.

2. With Persons of non-sane Mind.

3. Drunkards.

4. Infants.

5. Married Women.

6. Aliens.

7. Out-laws and Persons attainted.

8. Bankrupts.

9. Insolvent Debtors.

10. With Persons under Duress.

1. IN GENERAL.

To constitute a binding agreement, there must exist the mutual consent of the parties, that a certain act shall be done or omitted (a). The party to be charged, must not only express his assent that he will be bound, but must be endowed with some degree of reason and judgment, to enable him to comprehend the subject. The assent which is requisite to give validity to a promise, necessarily supposes a free, fair, and serious exercise of the reasoning faculty; in other words, the power, both physical and moral, of deliberating upon the matter, and weighing its consequences. If the party be absolutely deprived

(a) See ante, 8; 1 Pothier, 29, Pt. 1, c. 1, s. 1, Art. 4; Evans's ed. The essence of a contract consisting in consent, it follows, that a person inust

be capable of giving his consent, and consequently must have the use of his reason in order to be able to contract." Id.

of the use of his understanding, or be deemed by law not to have attained a sufficient degree of mental power, there can be no aggregatio mentium, or mutual assent of minds; and, consequently, no binding agreement. A capacity to contract is absolutely necessary;-the law protecting those who cannot protect themselves.

But the law presumes that there is a full capacity to contract. The instances in which protection is given from responsibility on agreements, on account of mental inability, form exceptions to the general rule (b); and must be strictly established on the part of the promiser who claims exemption. It is only in the prescribed instances that protection can be claimed: and weakness of mind short of insanity; or immaturity of reason, where the party has attained full age; or the mere absence of experience or skill upon the particular subject of the contract in question; afford no ground for relief at law or in equity, if no actual fraud be practised on the party.

It will be perceived, that, in some cases, the incompetency to contract, is general and absolute; in others, limited :—and that in some cases, the contract is void against both the parties; in others, only the incompetent or protected party can shelter himself from liability upon this ground. Thus, the contracts of persons of non-sane minds, and of infants, are not, in every case, absolutely inoperative against them. They may, as we shall shortly observe, enter into certain simple contracts; and are bound thereby, in the absence of fraud. And parties contracting with persons whom the law shields from responsibility upon the ground of mental infirmity, cannot in general, it seems, object the inability of the latter, as a defence. At least this will apply to the cases of contracts with infants; and with parties induced by fraud or duress to enter into an agreement. The infant, or the party defrauded, or impelled by fear to enter into the agreement, might maintain an action thereon for any breach of the contract on the part of the person who stipulated with him (c). However, the

(b) Toute personne peut contracter, si elle n'en est pas declarée incapable par la loix." French Code Civil, livre 3, titre 3, sect. 2, art. 1123. Upon which Rognon observes, " Le principe général est que tout le monde est capable; les incapacités sont consequemment

des exceptions qui ne doivent jamais s'entendre aux cas non prévus."

(c) The French law is to the following effect:-" Le mineur, l'interdit, et la femme mariée, ne peuvent attaquer pour cause d'incapacité, leurs engagements, que dans les cas prévus par la