such agreement is under seal it falls under the requirements of deeds, and must be stamped accordingly.

This is the most important exemption. It involves the distinction between things relating to the land and fructus industriales, which we have already treated of. (See p. 61, note a.) The former requiring a stamp, the latter being exempted within the exemption which in all cases applies only to what are goods and chattels : fixtures are not. (Chanter v. Dickinson, 5 M. & Gr. 253, 44 E. C. L. R.)

The agreements within this exemption must have for their primary effect either the sale of goods or something that relates to their sale (Chanter v. Dickinson, supra): if so, it is immaterial if there be minor or collateral stipulations. But where the primary object of the agreement is a pledge, and a sale the ulterior or contingent condition, a stamp is required. (Smith v. Cator, 2 B. & Ald. 778.) And where some other term in the agreement is a primary co-ordinate object, and does not relate to a sale, the agreement must be stamped, for it is something more than a mere contract for the sale of goods: thus a sale of goods and a goodwill is not exempt. (South v. Finch, 3 Bing. N. C. 506, 32 E. C. L. R.) But warranties contained in receipt fall within this exemption, for they relate to the sale. *(Skrine v. Elmore, 2 Camp. 406.) So do agreements to [*197] share in purchases. (Marson v. Short, 2 Bing. N. C. 118, 29 E. C. L. R.) Guarantees for the payment of goods are within the exemption. (Warrington v. Furbor, 8 East, 242; Martin v. Wright, 14 Law Journ. Q. B. 142) [since reported 6 Queen's Bench 917]. It also exempts all letters containing any agreement, not previously exempted, in respect of any merchandise or evidence of such, which shall pass by the post between merchants or other persons carrying on trade or commerce in Great Britain residing and actually being fifty miles distant from each other at the time of sending such letters.

The 9 Geo. 4, c. 14, exempts also all contracts for work to be done and materials to be provided in manufacturing goods.

The 55 Geo. 3, c. 184, exempts any agreement for the hire of labourers, artificers, or servants. It exempts all agreements between the master and mariners of any vessel for wages between English ports. (See, on the subject of contracts between them, 8 & 9 Vict. c. 116.)

In addition to these exemptions, the 9 Geo. 4, c, 14, s. 8, which extended the requirements of the Statute of Frauds, that agreements be in writing, has provided 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." These agreements thus exempted relate to the ratification of contracts by infants, and contracts barred by the Statute of Limitations; to assurances of credit, and to contracts for work to be done and materials to be provided in manufacturing goods.

Thus, including all the agreements under 207., all those relating to sales, leases of small tenements, the hire of servants, and those last enumerated under the 9 Geo. 4, c. 14, it will be seen that a very large proportion of the most ordinary agreements are exempted from the necessity of being stamped.

Receipt stamps will be noticed in treating of the defences to actions

on contracts.

[*198]

All inland bills of exchange, drafts, orders, and promissory notes, do not fall within our province; but it may be briefly stated that they also are stamped under the schedule of the 55 Geo. 3, c. 184, *according to the well-known rates of duty, wherever they are for a sum certain, and are made payable to the bearer or to order, or be delivered to the payeee or some one on his behalf. This is the definition of a bill or note under the act. There is a special exemption for cheques on bankers transacting business within fifteen miles (according to 9 Geo. 4, c. 49, s. 15) of the place where they are issued, provided they are dated on or before the day on which they are issued, and specify the place where they are drawn. (Field v. Wood, 7 Ad. & Ell. 114; Dawson v. MacDonald, 2 M. & W. 26, 34 E. C. L. R.)

Promissory notes, which contain an agreement or terms amounting to one, are to be stamped as notes only if the entire sum or sums secured by them are definite and certain; otherwise as agreements, if of the proper value. (See instances in Bolton v. Dugdale, 4 B. & Adol. 620, 24 E. C. L. R.; Davies v. Wilkinson, 10 Ad. & Ell. 100, 37 E. C. L. R.)

Where the payment is contingent, as for goods ordered to be paid only if delivered, it is an agreement and not a note; Jarvis v. Wilkins, 7 M. & W. 412.

The subject of stamps on bills and notes is fully treated of in Serjeant Byles's "Practical Treatise on Bills," p. 74, 4th edit.

[*199]

*LECTURE VIII.

PARTIES TO CONTRACTS-WHO ARE INCOMPETENT TO

CONTRACT-INFANTS—WIVES.

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I CONCLUDED in my last lecture the consideration of the contract itself, having spoken of the different sorts of contracts, of the consideration necessary to support a contract without specialty, and the effect of illegality in invalidating all contracts whatever. The next branch of the subject relates to the parties to the contract. (a) Now this, you will at once perceive, involves a double consideration,

First. Regarding the ability of the parties to the contract at all.

Secondly. Regarding their ability to enter into this or that particular sort of contract; for (as I shall have to explain more at length to you) there are persons who are allowed by the law to contract, but are not allowed to contract in the same way as an

[*200] ordinary individual; for instance, a corporation may contract by deed, but cannot, except in certain

by dui cases, which I shall presently specify, contract in any

other manner. However, although these two conside

(a) Parties to a contract are they between whom privity or mutuality of contract exists, see ante, p. 89, note. Questions often arise as to the person to whom credit is given; and who is said to be privy to it; in other words a party to it. Privity and mutuality as we have seen, are essential to make people parties to a contract. This privity or mutuality may be either direct or implied. It is direct when two persons contract together without the intervention of others; implied, where they contract by means of their agents, as we shall presently see.

rations are in themselves distinct, yet I think the better and more intelligible plan will be to deal with both of them together, specifying, one by one, those classes of persons regarding whose power to contract, the law contains any particular provisions, and pointing out, while treating upon each of them, in what cases they are disabled from entering into any contract, and in what cases, although allowed to contract, they are obliged to do so in a particular form.

Now I need hardly tell you that, primâ facie, any subject of the realm has power to enter into any contract not rendered illegal by the provisions of a statute or the common law; and therefore the cases to which I am now to advert are cases of complete or partial disability; cases in which a contract, which would have been good if entered into by an ordinary individual, is, when entered into by some particular individual, invalid, because that individual happens to fall within a class of persons who either do not possess ability to contract at all, or do not possess ability to contract in that particular way.

The first of these classes of persons to which I shall advert is that of Infants.

The general principle which regulates this branch of the law, is that until an individual has *at

tained the age of twenty-one, which period the [201]

law has selected as that at which a person of average capacity may fairly be supposed to have attained a sufficient experience to render his natural faculties fully available in the practical business of the world, it is necessary to shield him from the dangers of becoming a prey to others willing to take advantage of his inexperience; and as there are no means of doing this except by placing him under a limited disability to contract, he is accordingly placed under such limited

disability. But, inasmuch as to place him under a total disability might have the effect of preventing him from attaining objects not only not detrimental, but of the utmost advantage to him, he is, in order to avoid this risk, permitted to oblige himself to a certain extent, since otherwise he might be unable to obtain food, clothes, or education, though certain to possess at no very distant period the means of amply paying for them all.'

The general principle therefore is, that an infant may bind himself by a contract for what the law considers necessaries, but not by any other contract. We will consider, therefore, what it is that the law comprises under this denomination.

Now it is well established by the decisions that under the denomination necessaries fall not only the food, clothes and lodging necessary to the actual support of life, but likewise means of education suitable to the infant's degree, and all those accommo[*202] dations, conveniences, and even matters of taste which the usages of society for the time being render proper and conformable to a person in the rank in which the infant moves. The question what is conformable-what is, in the legal sense of the word, necessary-is, in each case, to be decided by a jury; but

2

The student may be referred, upon this subject generally, to the note to the cases of Tucker v. Moreland, and Vasse v. Smith, in the first volume of American Leading Cases, 251, where it is thoroughly examined, and the editor justly remarks, in the preface to that volume, that owing to a peculiar state of society among us, it has happened that the subject of the contracts of infants is capable of being illus trated from the American Reports, with a copiousness of examples and a certainty of principle which the English books do not exhibit. See also the notes infra.

The law has always been so; Mackarall v. Bachelor, Cro. Eliz. 583; Hands v. Slaney, 8 Term, 578; Ford v. Fothergill, 1 Esp.