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a sum of more than 20l. to be due for rent, and, in consideration of the landlord withdrawing a distress, authorising him to re-enter and distrain if the rent be not paid by a certain day, is admissible to prove the tenancy, without being stamped (u).

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 such conditions, as may be subsequently agreed upon : it was held, that this was a new agreement to become tenant, and that it required a stamp (x). So, where the attornment stated, that the tenant held at a certain rent, payable quarterly, and contained an acknowledgment of an arrear of rent due, it was held to be inadmissible for want of a stamp (y).

CH. VI. s. 4.

Stamp (when required).

Rules for what is an ascertaining

within the

Stamp Act,

1891.

In ascertaining what is an "Agreement" within the meaning of the Stamp Act, 1891, attention must be directed to this inquiry, viz. what is the primary or leading object or feature of the instru- "Agreement" ment (2); for although an instrument may appear at first sight to be an agreement, or may be so described by the parties thereto, yet this may not be its legal character or effect (a). Thus where a firm, which was negotiating to obtain an advance of money on their bill, wrote to the proposed lender stating that, in consideration of his accepting their draft, they handed him therewith the bill of lading and policy of insurance for certain wines expected to arrive, which would afford him security beyond the amount of the bill; and engaging to land and warehouse the wines to be held at his disposal: it was held, that this document did not require a mortgage stamp, but was properly stamped as an agreement (b). And although, as we shall hereafter see, 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, the instrument must be stamped, though the sale of them be incident thereto (c). So, if an instrument purporting to be a bill of exchange or promissory note amounts, in fact, to an agreement between the parties, an agreement stamp is necessary (d). But if, on the other hand, the instrument be

(u) Hill v. Ramm (1843), 5 M. & G. 789; and see Fishwick v. Milnes (1850), 4 Exch. 825.

(x) Cornish v. Searell (1828), 8 B. & C. 471.

(y) Doe d. Frankis v. Frankis (1840), 11 A. & E. 792.

(z) See as to this, per Cur., Limmer Asphalte Paving Company v. Commissioners of Inland Revenue (1872), L. R., 7 Ex. 211; Frith v. Rotheram (1846), 15

M. & W. 39; Wolseley v. Cox (1841), 2
Q. B. 321; Doe d. Maceron v. Bragg
(1838), 8 A. & E. 620.

(a) See Barry v. Goodman (1837), 2
M. & W. 768.

(b) Harris v. Birch (1842), 9 M. & W. 591.

(c) Smith v. Cator (1819), 2 B. & Al. 778.

(d) Nicholson v. Smith (1822), 3 Stark. 128; Smith v. Nightingale (1818),

CH. VI. s. 4. Stamp (when required). Promissory note.

Where several stamps are required.

primarily a promissory note, it must be stamped as such, and not
as an agreement. And therefore, where the instrument was :-
"On demand I promise to pay W. I. H., or order, 500l. for value
received, with interest; and I have lodged with the said W. I. H.
the counterpart, lease, &c., as a collateral security for the said
500l. and interest: " it was held that it was properly stamped as
"it
a promissory note (e). Where, however, the instrument was :-
"I have received the sum of 201. which I have borrowed of you,
and I have to be accountable for the said sum, with interest: "
it was held that it was properly stamped, not as a promissory
note, but as an agreement (f); and the same was held of a
promise to pay the payee 150l. "on his signing a lease" (g).
For a document to require a stamp as a promissory note, it
must substantially contain a promise to pay a definite sum and
nothing more (h); and if the primary intention of the parties to
an indenture were, that the instrument should be a lease, it must
be stamped as such (i). Where the Thames Conservators agreed
to grant permission during their pleasure to the appellants to
construct and retain a jetty in consideration of an annual pay-
ment yearly so long as the jetty was allowed by the conservators
to remain, it was held that this agreement required the 6d.
agreement stamp only, and not the lease or conveyance on sale
stamp (k).

(c) Requirement of more Stamps than One.

The Stamp Act, 1891, imposes a duty upon each agreement in writing; and therefore, if there be upon one paper several distinct contracts between the same or different parties, and each contract be of 51. value (1), there must be a separate stamp on that paper (m) for each; because, if there were not, it would be uncertain to which agreement the stamp or stamps which were on the paper was or were intended to be applied (n). Thus, an instrument containing several distinct demises to different persons, although the same terms of agreement apply to all, must be stamped with

2 id. 375. An agreement, indorsed on a
promissory note, extending the time for
payment, cannot be read unless it be
stamped; Stone v. Metcalfe (1815), 1
Stark. 53.

(e) Fancourt v. Thorn (1846), 9 Q. B.
312; and see Wise v. Charlton (1836), 4
A. & E. 786.

(f) Horn v. Redfearn (1838), 6 Scott, 260; and see White v. North (1849), 3 Exch. 689.

(g) Yeo v. Dawe (1885), 53 L. T. 125, C. A., diss. Bowen, L.J., and reversing decision below.

(h) Mortgage Insurance Corporation v.

Inland Revenue Commissioners (1888), 21 Q. B. D. 352, C. A.

(i) Price v. Thomas (1831), 2 B. & Ad.

218.

(k) Thames Conservators v. Inland Revenue Commissioners (1866), 18 Q. B. D. 279.

(1) See Roots v. Lord Dormer (1832), 4 B. & Ad. 77.

(m) See Shipton v. Thornton (1838), 9 A. & E. 314; Rex v. Reeks (1727), 2 Ld. Raym. 1446.

(n) Per Cur., Shipton v. Thornton (1838), 9 A. & E. 314; Waddington v. Francis (1804), 5 Esp. 182.

CH. VI. s. 4. More Stamps than One.

Rule where there is only

one subject

a separate stamp for each of the several demises (o), because the legal
effect of such an instrument is, that each party is severally respon-
sible; and there is no community of interest or subject-matter.
If, however, there be but one agreement, however many distinct
articles it may embrace; or if there be only one subject-matter of
agreement, and each party's interest relate to such subject-matter, matter.
so that the contract substantially relates to and comprehends but
one transaction-although in respect of the contractors, each sub-
jects himself to a separate liability, or consults his own interest
only-one stamp will suffice (p). Thus an indenture, whereby
several persons jointly convey their separate interests in certain
shares in an incorporated company, does not require several
stamps (q). So, an agreement by a party respecting the freight
of two parcels of goods (r); or an agreement by several, for a
subscription to one common fund, or for one common purpose, in
which each is interested, or by which each binds himself to a
certain extent, in consideration that the others will do the same,
requires but one stamp (s), as in the case of an agreement by
several, to sell their respective shares in a sum of prize-money (t),
or a submission to arbitration by several underwriters, of a dis-
puted claim on a policy (u). And the same rule would appear
to apply to the case of the parliamentary contract, which is
entered into by the shareholders in a joint-stock company (x).
So 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
only one stamp (y). And so, if there be a demise by A. to B.
and an agreement by B. and C. to pay the rent-all the other
agreements being between A. and B. only-no separate stamp
is needed for the agreement by C., it being merely accessory
to the demise (2). But if the agreement be by B. alone, and
there be in the same instrument an agreement by C., guarantee-
ing the performance of B.'s agreement, C.'s agreement requires a
separate stamp (a).

(0) Per Lord Ellenborough, C.J., Doe v. Day (1811), 13 East, 241.

(p) See per Cur., Doe d. Croft v. Tidbury (1854), 14 C. B. 304. A demise to one party, of different premises at distinct rents, requires but one stamp, if it was bona fide but one transaction; Boase v. Jackson (1822), 3 B. & B. 185.

(g) Wills v. Bridge (1849), 4 Exch.

193.

(r) Shipton v. Thornton (1838), 9 A. & E. 314.

(s) Ramsbottom v. Davis (1839), 4 M. & W. 584; Davis v. Williams (1811), 13 East, 232; Bowen v. Ashley (1805),

1 N. R. 274; Cook v. Jones (1812), 15
East, 237.

(t) Baker v. Jardine (1784), 13 East,
235, n. (5).

(u) Goodson v. Forbes (1815), 6 Taunt. 171.

(x) West London Railway Company v. Bernard (1843), 3 Railw. Cas. 649.

(y) Rex v. Louth (1828), 8 B. & C. 247.

(z) Price v. Thomas (1831), 2 B. & Ad. 218.

(a) Wharton v. Walton (1845), 7 Q. B. 474.

CH. VI. 8. 4.

than One.

Where there is a second agreement.

So where an agreement is complete, any further agreement in More Stamps writing, even between the same parties and upon the same paper, and although it has a direct and express reference to the first agreement, must be stamped. Thus, where there was a written agreement for a wager, and then, by a memorandum indorsed upon the former, the parties consented that the debt should be doubled, such memorandum was held to require a stamp (b). It seems, however, that if the first contract be left in full operation, and be not varied or affected by the second, the paper will be admissible as evidence of the first agreement, although there be only one stamp thereon. Thus, in such a case as the above, the first wager might, perhaps, before the Gaming Act, 1845, made all wagering contracts void, have been proved upon the first memorandum, although the second were not stamped (c). But where parties enter into a written agreement, which is duly stamped, and afterwards write on the face, or on the back of it, or on a separate paper (d), terms varying the original agreement, such new terms constitute a fresh agreement, and are not admissible in evidence without a fresh stamp (e). And the new contract, made by the introduction of such fresh terms, is considered as putting an end to the first contract, so that the plaintiff cannot recover upon either, the second being unstamped (f). In Reed v. Deere (d), however, the Court held, that they could look at the second unstamped contract, to ascertain whether the first was altered by it.

General rule.

SECT. 5.-Effect of Want of Stamp.
(a) General Rule.

If it appear in the course of a cause, either on the plaintiff's own showing, or on the 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 which contains the whole of the stipulations of the parties upon the subjectmatter, such instrument must be produced by the plaintiff duly stamped (g). Thus where, in an action for use and occupation, it

(b) Robson v. Hall (1792), Peake, 172. (c) Robson v. Hall (1792), Peake, 128. (a) Per Littledale, J., Reed v. Deere (1827), 7 B. & C. 261.

(e) Bacon v. Simpson (1837), 3 M. & W. 78; Reed v. Deere (1827), 7 B. & C. 261.

(f) Reed v. Deere (1827), 7 B. & C.

261; French v. Patten (1807), 1 Camp. 72; 9 R. R. 571.

(g) See Buxton v. Cornish (1844), 12 M. & W. 426; Doe v. Morris (1810), 12 East, 237; Fenn v. Griffiths (1830), 6 Bing. 533; and as to stamping in Court for purposes of evidence under sect. 14 of the Stamp Act, 1891, see p. 120, ante.

appeared 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 (h). So, in an action for injuring the plaintiff's reversion, if it appear that the land was let by the plaintiff to the occupier under a written agreement, the plaintiff is bound to produce it (i).

An unstamped or improperly stamped agreement cannot be read in evidence, so as to assist to establish a claim, even although the time for enforcing such agreement has expired, or the parties in the action may not be parties to the agreement (k). Fielder v. Ray (1) establishes the very important rule that after the plaintiff has proved by witnesses an express or implied oral contract, without disclosing that there was a written contract, he cannot be nonsuited by the defendant's producing an unstamped written instrument, purporting to contain the terms of the contract; and the same rule holds good, even although the plaintiff has had notice to produce the instrument in question (m).

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instrument is lost or

Where an agreement has been lost, or even wrongfully destroyed Rule where by the party who takes the objection, parol evidence of its contents is inadmissible, if it appear that it was unstamped when destroyed. lost or destroyed (n). But the burden of proving an instrument to be unstamped lies, in the first instance, on the party who objects to its production on that ground; the rule being that, in the absence of evidence to the contrary, it will be presumed to have been duly stamped (o). And where an apprentice had regularly served under an indenture, executed thirty years before, and the parish in which the apprentice was settled under that indenture had relieved him for the last twelve years, and the indenture had been lost; it was held, that the sessions had rightly presumed that the indenture had been duly stamped, although it was proved on the other side, by an official registrar of apprentices' indentures, that it did not appear that any such indenture had been stamped or enrolled (p).

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(i) Cotterill v. Hobby (1825), 4 B. & C. 465. In the case of Strother v. Barr (1828), 5 Bing. 136, the Court of Common Pleas were equally divided on this question; but the better opinion seems to be that stated in the text; and see Doe v. Harvey (1832), 8 Bing. 239.

(k) Rex v. Bedford (1795), 6 T. R. 452; Turner v. Power (1828), 7 B. & C. 625.

(1) Fielder v. Ray (1829), 6 Bing. 332. See Stevens v. Pinney (1818), 8 Taunt. 327; Rex v. Inhabitants of Padstow (1832), 4 B. & Ad. 208.

(m) Magnay v. Knight (1840), 1 M. & G. 944.

(n) Rex v. Castlemorton (1820), 3 B. & Al. 588; Rankin v. Hamilton (1850), 15 Q. B. 187. If the plaintiff's part of a deed, executed by defendant, was duly stamped and then lost, and the defendant produce his part on notice, the latter, though unstamped, may be read as secondary evidence; Munn v. Godbold (1825), 3 Bing. 292.

(0) Marine Investment Company v. Haviside (1872), L. R., 5 H. L. 624.

(p) Rex v. Long Buckby (1805), 7 East, 45; 8 R. R. 595.

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