creditor refused to sign the certificate unless a sum of money was paid him by a friend of the bankrupt's, and the money having been paid, it was held that a person who had paid it might recover it back again: Jacques v. Withy, 1 H. Bl. 65; Jacques v. Golightly, 2 Bl. 1073; Williams v. Hedley, 8 East, 378; Taylor v. Lendey, 9 East, 49; Smith v. Cuff, 6 M. & S. 160.1

The other exception is, that when money has been paid in pursuance of an illegal contract, but paid not to the other contracting party, but to a stakeholder, then either party may recover it back again; for instance, if parties agreed to play at an illegal game, and each deposited his stake in A.'s hands, either might recover it back from A.; for it is obvious that in this case to *allow the money to be recovered is to allow the parties a locus poenitentice, within which [*191] they may repent of their illegal contract, and refrain from completing it at all; see Botton v. Thurland, 5 T. R. 405; Smith v. Bickmore, 4 Taunt. 474; Hastelow v. Jackson, 8 B. & C. 221, 15 E. C. L. R.; Hodson v. Terrill, 1 C. & M. 802.(a)2

I have now done with the contract itself. I have stated the various points relating to the contract itself, the consideration and the effect of illegality on either. In the next lecture I shall speak of the parties to it. (b)

(a) But if the wager were not illegal, such as one on a foot-race for less than 107. (before the late Wager Act was passed), neither of the bettors could recover back his stake from the stakeholder before the determination of the event; Emery v. Richards, 14 M. & W.

728.

(b) There are many contracts which, though legal in themselves, may be illegally authenticated, and which cannot consequently be enforced such are all written agreements which the law requires to

1

See supra, note to p. 125. See the cases cited supra to p. 167.

be stamped, but to which no stamp, or a stamp of too low an amount has been fixed. The contract itself is not avoided, but it is incapable of being enforced, for as soon as it appears that the agreement was reduced to writing, no parol evidence of it is any longer admissible; and if the agreement be unstamped, and is produced in order that it may be set up as an agreement and to have effect given to it, it cannot be read and shall not be received in evidence at all—the jury cannot see it, the judge cannot use it. (Buxton v. Cornish, 12 M. & W. 426; Williams v. Gerry, 10 M. & W. 296.) But a copy of an original deed not produced when called for, which copy has been compared with and sworn to, is admissible. (Braythwayte v. Hitchcock, 10 M. & W. 494.) And where a deed more than thirty *years old, requiring an ad valorem stamp, bears the mark [*192] of having had one on it, it will be presumed to have been a proper one. (Doe d. Fryer v. Coombs, 3 Q. B. 687, 43 E. C. L. R.) In all other cases, wherever it appears that a written instrument existed, it must be produced; but if the plaintiff can get through his case without making this appear, he cannot be nonsuited by the defendant producing it, even if it proves to be unstamped. (Fielder v. Ray, 6 Bing. 332, 19 E. C. L. R.) Unstamped agreements which require to be stamped may be read in court to establish fraud or crime, and to show that it was an illegal agreement. (Coppock v. Bower, 4 M. & W. 361.) An unstamped bill of exchange is admissible upon the same principle, where it is produced to show its worthlessness. (Smart v. Nokes, 6 M. & Gr. 911, 46 E. C. L. R.)

A distinction as to the kind of stamp required exists between deeds and other contracts. The stamps assigned to deeds are set forth in the 55 Geo. 3, c. 184, which imposes ad valorem stamps upon all conveyances, grants, leases, surrender of leases, bonds, assignments, mortgages, bills of sale, declarations of trust, deeds of partition, and some other specialties; it then imposes a duty of 17. 15s. (with an increase according to length) upon all deeds not specified or expressly exempted by the schedule of the act: and questions often arise whether certain deeds fall within the category of those requiring an ad valorem stamp, a stamp of 17. 15s., or of those exempted from the necessity of being stamped at all. Cases have recently occurred in which the distinction has arisen as regards mortgage deeds in Doe dem. Bowman v. Lewis, 13 M. & W. 241; Lant v. Pearce, 8 Ad. & Ell. 248, 35 E. C. L. R.; Wroughton v. Turtle, 11 M. & W. 561; Doe d. Jarman v. Larder, 3 B. N. C. 92, 32 E. C. L. R.; Doe d. Mercerm v. Bragg, 8 Ad. & Ell. 620; Sellick v. Trevor, 11 M. & W. 722; and Harris v. Birch, 9 M. & W. 591. As regards transfer

of mortgages, in Doe dem. Snell, and Short v. Tom, 4 Q. B. 615, 45 E. C. L. R., and Brown v. Pegg, 7 Q. B. 1, 53 E. C. L. R. As regards conveyances, in Phillips v. Morrison, 12 M. & W. 740; Wolseley v. Cox, 2 Q. B. 321, 42 E. C. L. R. As regards leases, in Wilson v. Smith, 12 M. & W. 401; *Nicholls v. Cross, 14 Law Jour. Exc. 244 [since reported 14 Mees. & Welsby, 42]; [*193] Eagleton v. Gulleridge, 11 M. & W. 465. As regards bonds, in Corn Exchange of Winchester v. Gillingham, 4 Q. B. 475, 45 E. C. L. R.; Dearden v. Binns, 1 M. & Ry. 130, 17 E. C. L. R.; Frith v. Rotherham, 15 Law Journ. Exc. 133 [since reported 15 Mees. & Wels. 59]. Declarations of Trust, in Haywood v. Bibby, 11 M. & W. 812. As regards bills of sale, in Pierrepont v. Gower, 4 M. &. Gr. 795, 43 E. C. L. R. And deeds of apprenticeship, in Rex v. Chipping Norton, 5 B. & Ald. 412, 7 E. C. L. R.

The 55 Geo. 3, c. 184, also requires that agreements (not being deeds) shall be stamped whenever "the matter thereof shall be of the value of 207. 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 endorsed thereon, or annexed thereto." The amount of the stamp was under that statute proportioned to the length of the agreement; 17. being the minimum. (The 7 & 8 Vict. c. 21, has reduced this stamp to one of 2s. 6d., for all agreements requiring a stamp under the 55 Geo. 3, c. 184.) The value applies to the subject-matter of the agreement, and not to any matter to which the agreement may collaterally relate. (Latham v. Rutley, 1 Ry. & M. 13.)

The agreement must purport to be, and actually be, one, and not a mere proposal, offer, or memorandum containing the terms of an agreement, but not signed by both parties, Bethel v. Blencowe, 3 M. & Gr. 119, 42 E. C. L. R. ; Blackwell v. MacNaughton, 1 Q. B. 127, 41 E. C. L. R.; Mullett v. Hutchinson, 7 B. & Cr. 639, 14 E. C. L. R.; Hawkins v. Warre, 3 B. & Cr. 690, 10 E. C. L. R.; Wallis v. Broadbent, 4 Ad. & Ell. 877, 31 E. C. L. R. See also Vaughton v. Brine, 1 M. & Gr. 359, 39 E. C. L. R.; in which case Tindal, C. J. lays it down that "where a memorandum may have been either a proposal, or an authority to enter into a contract, or a resolution that was afterwards carried into effect, and therefore only evidence of the terms of an agreement subsequently made," there no stamp is required. And Maule, J., explained the last part of the clause above cited, as follows: "The subsequent words, whether the same shall be only evidence of a contract, or obligatory upon the parties from its being a written instrument,' are, I conceive, *used to exclude the excuse that the agreement, of which some memorandum is

เ

[*194]

given as evidence, need not have been made in writing; which would, in every case not within the Statute of Frauds, enable a party to give in evidence a written contract without its being stamped." A prospectus or any document of which a parol agreement adopts the terms, must be stamped, according to the doctrine of Lord Ellenborough, C. J., in Edgar v. Blick, 1 Stark. R. 464, 2 E. C. L. R.

Every separate contract, and every contract endorsed with fresh terms, must be separately stamped, though they relate to the same subject-matter (Reed v. Deare, 7 B. & Cr. 261, 14 E. C. L. R.); but where several parties join in one agreement one stamp suffices. (Davis v. Williams, 13 East, 232.)

The statute, it will be observed, imposes the stamp-duty only on such agreements as relate to matters of the value of 207. and upwards: this applies to the immediate subject-matter of the contract, as, for instance, an agreement to carry goods will be governed not by the value of the goods, but by the charge for carrying. (Latham v. Rutley; and see Hill v. Ramm, 5 M. & Gr. 789, 44 E. C. L. R.) So, agreements to warehouse goods for rent, depend not on the value of the goods deposited, but the matter of the agreement, which is the rent. (Baldwin v. Alsager, 13 M. & W. 365.) Nor is it enough to bring a case within the statute that the agreement may possibly be of the value of 207.; it must be so in its nature and inception. Thus no stamp is required on an IO U which promises to pay interest at 5 per cent. on 457. (Melanotte v. Teasdale, 13 M. & W. 216.) Nor is any stamp requisite where the value of the subject-matter is uncertain, as in the case of a guarantee to indemnify another against the unknown results of some act. (Cox v. Bailey, 6 M. & Gr. 193, 46 E. C. L. R.)

The schedule to 7 & 8 Vict. c. 21, imposes a duty of 2s. 6d. "for and in respect of every agreement or minute or memorandum of an agreement now chargeable with the duty of 17., under the head or title of Agreement,' in the schedule to the act of 55 G. 3, c. 184, annexed."

If the stamp is of sufficient value, though a wrong one, it is valid. See 10th Section *of the 55 Geo. 3, c. 184. Wherever there

[*195] has been a material alteration in an agreement after stamping, it must be restamped. Agreements may be stamped at any time before they are produced at the trial, and 7 & 8 Vict. c. 21, s. 5, provides that this may be done within fourteen days after the making thereof, without any penalty: but if after that period, then on payment of 107. penalty above the amount of the stamp.

The act provides that where "divers letters shall be offered in evi

dence to prove one agreement between the party who shall have written such letters, it shall be sufficient if any one of such letters shall be stamped." And the case of Grant v. Maddox, 15 Law Journ. Ex. 104 [since reported 15 Mees. & Wels. 737], decides that this proviso applies to letters written by the agents as well as by the parties themselves.

Letters to an attorney, which merely authorize a party to put his name to bills of exchange, are not liable to the agreement stamp, but fall under the provision in the act for powers of attorney, though they contain an agreement for liability, provided it be only such an agreement as the law would imply from the authority given. (See 7 & 8 Vict. c. 21, s. 6; also Reg. v. Kelk, 12 Ad. & Ell. 559, 40 E. C. L. R.; Walker v. Remmett, 15 Law Journ., C. P. 174) [since reported 2 Com. Bench, 850].

Where an agreement contract is accompanied with a deposit of title deeds for making a mortgage, wadset, or other security on any estate or property therein comprised, the schedule, Part I., requires an agreement stamp. See Pyle v. Partridge, 15 Law Journ., Exc. 129 [since reported 15 Mees. & Wels. 20], as to what is not an accompaniment of the agreement with a deposit of the title-deeds.

All agreements requiring a stamp must relate to money; but all relating to money (even above 207.) do not require a stamp; for there are many exemptions.

In the first place, the 55 of Geo. 3, c. 184, itself exempts from stamp duty any memorandum or agreement for granting a lease or tack at rack-rent of any messuage, land, or tenement, under the yearly rent of 51.

[*196]

It has been decided that this clause applies to agreements where the amount of rent is under 57., whether *the subject of the agreement be above that value or not. And it has been held, moreover, in the same case, that all agreements for leases are equally exempt from duty of which the rental is under 20%., according to the above cited clause of the schedule, wherever the "matter of the agreement" is not the land, but the amount of rent. (Doe d. Marlow v. Wiggins, 4 Q. B. per Patteson, J. 376, 45 E. C. L. R.) The question is, what do the parties deal for? If merely for what the tenant is to give for the right of a specified occupation, the agreement requires no stamp, unless that amount be 207. or upwards: if it be an agreement for a lease of the land or tenement itself, then it is exempted from stamp-duty only where the yearly rent is under 5l. The act exempts any agreement "made for or relating to the sale of any goods, wares, or merchandise," which is not under seal. If