Every ordinary pecuniary obligation requires to be stamped as a bill or otherwise; but a mere acknowledgment by one that money has been deposited in his hands, such as " Mr T. has left in my hands £200;" "I have in my hands three bills which amount to £120, 10s. 6d., which I have to get discounted, or return on demand," need not be stamped.' In calculating the amount of the subject-matter of the agreement, the extent of the immediate engagement is viewed, not that of any more extended responsibility which may incidentally arise in consequence of it. Thus, where a carrier gave the following memorandum, " received of L. & Co. a paper parcel directed to Messrs A. B. & Co., value £260, which we agree to deliver to them to-morrow, fire and robbery excepted, carriage paid here," a stamp was not necessary in an action for loss of the parcel, the price of carriage, which was the subject-matter of the agreement, being less than £20.2 “An agreement by several persons for a subscription to one common fund, or for one common purpose, in which each is interested though not jointly, and although several as to each, requires only one stamp."3 The stamp-acts are strictly interpreted, and no documents are held to require stamp but those which are distinctly included in the schedules, &c. Thus, an indorsement on an account, "Pay the within account to A. B." being a mere direction to pay a debt otherwise existing to a particular person, was held not to require a stamp.4

It has been found that where the second leaf of a stamped sheet had been removed, and a half-sheet of unstamped paper substituted for it, the deed was not to be considered as properly stamped. The stamp was of course on the first half-sheet, and it was to the requisite amount, so that the full duty to government had been paid. It seemed to be held however that if any part of it be on a piece of paper which does not bear a stamp, the document is not to be considered as stamped.5

Effects of want of Stamp.-By certain old acts, a penalty of £5 is payable for every unstamped writing, for which there is not a particular penalty in the other stamp-acts.6 Agreements and minutes liable to a general stamp formerly of £1, now of 2s. 6d. may be stamped on payment of the duty merely, within 14 days after being signed; on payment of the duty and £10 after the lapse of that time.7 That a writing has

1 Cases quoted Ch. on St. 166.- Latham v. Rutley, 1824, 1 R. & M. 13. -3 Ch. on St. 178.- Laurie v. Ogelvy, 6th February 1810.- Nicol v. Fraser, 11th March 1841.-6 5 & 6 Wm. & M. c. 21, § 11. 6 & 7 Wm. III. c. 12, § 7.-77 & 8 Vict. c. 21, § 5.

been engrossed on a stamp, if it be not executed, is no obstacle to another writing being engrossed on it and executed, with a narrative in the testing clause that the previous writing is held as erased. The penalty for an unstamped receipt is £10, if the sum be under £100, and £20 if above that amount.2 In the general case the proper stamp may be adhibited by the commissioners at any time before the document is used in evidence, on payment of the stamp-duty and the statutory penalty.3 The commissioners are prohibited from stamping bills, notes, proxies to vote at meetings of joint-stock companies, and receipts, after they have been extended; except that receipts may be stamped within fourteen days, on payment of the duty and £5, and within a calendar month, on payment of the duty and £10.5 Such deeds then, if unstamped, are ineffectual from the beginning, and cannot be validated. An apprentice indenture, which does not state the true sum paid as apprentice-fee, is in the same situation.? The prohibition extended to policies of insurance on sea risks, but it may be inferred, though it is doubtful, that the above rule as to agreements applies to them.8 Documents with stamps of inferior value are generally in the same position with those unstamped; but where the stamp is of the assigned or of a higher value, though of different denomination, there are generally provisions for substituting the proper stamp at a smaller sacrifice. An unstamped deed not being receivable as evidence by any court of justice, the deficiency cannot be overcome as in the

an ordinary informality, by homologation or rei interventus. (See above, p. 127.) It appears however that a document may be judicially used for a purpose different from that for which it requires to be stamped, as where a revocation of a settlement was adduced with other evidence to prove fraud and circumvention.10 In those cases where a document may be stamped after it is executed, if the stamp be adhibited before judgment is given in a court of law, it will retroact and validate the proceedings.11 It has even been held that a subsequent stamping of a writing validated diligence which had proceeded on it before it was rightly stamped.12 The expense of stamping a document in the

3 Ch.

Longmore v Lindsay, 19th July 1845.- 35 Geo. III. c. 55, § 8.on St. 88, Coventry, 26. 31 Geo. III. c. 25, § 19. 7 & 8 Vict. c. 21, § 7.35 Geo. III. c. 55, § 11.-Scott v. Burd, 19th November 1845.-78 Anne, c. 9, § 39.8 35 Geo. III. c. 64, § 14; 7 & 8 Vict. c. 21, § 5.-9 Tait on E. 155.-10 Mackenzie v. Crawfurd, 25th June 1839.-" Davidson v. Gibb, 13th Nov. 1838. Wood v. Ker, 13th Nov. 1838. Church v. Sharpe, 8th March 1843.-12 King v. Baillie, 18th December 1844.

course of a process was laid on a party, the granter of the document, on the ground that he should have granted it in a valid form, and should have implemented it without an action. A contract may be proved by separate evidence (if it be one of those which do not require writing), if invalid from want of stamp; but it is held in England that if it come out in evidence that there has been an agreement committed to writing, it must be produced duly stamped, otherwise the contract cannot be enforced.2

Colonial deeds must bear their proper stamps (if there be any) before being received as evidence in this country;3 but it is held (at least in England) that the British courts cannot recognise the stamp or other revenue laws of foreign countries.4

The stamp laws as they more particularly affect Bills and Notes will be again considered under that head.

SECT. 8.-Delivery.

It is a general rule that a deed is not binding on the granter until it is delivered into the hands of the person favoured; but, 1st, There are some deeds which do not require delivery; 2d, There are acts which are equivalent to delivery; and, 3d, There are cases in which the granter is the proper custodier of the document for behoof of the person favoured. Testamentary deeds do not require delivery, for they are not to take effect till after the granter's death, and are revocable while he lives, even though delivered.5 Deeds containing a clause dispensing with delivery are effectual if found in the repositories of the granter after his death. Where the granter has an interest in the deed (as in the case of a Disposition reserving his liferent) delivery will be dispensed with, for he will be presumed to have kept it for the security of his own interest. A deed which one is under an obligation to grant requires no delivery to make it effectual.8

Where delivery is requisite, it may be made in the hands of a third party, but to make such delivery effectual, the act must have been done intentionally for behoof of the person favoured. If a deed is produced by a third party, the presumption in the absence of evidence is that it has been lodged

1 Gardiner's Executrix v. Bennett, 28th Nov. 1839.-2 Ch. on St. 68.3 Ibid. 15.- James v. Catherwood, 3d June 1823; 3 Dowl. & Ryl. 190.E. iii. 2, 44. Tait on E. 157.-6 Ibid.-7 Ibid. 8 Cormack v. Anderson, 8th July 1829.-9 Tait on E. 161.

5

with him for behoof of the person favoured, but if the third party be the granter's law-agent, the deed has no more effect than it would have if found in his own repositories.1 When it is delivered to a person who is agent both for the granter and grantee, it will be a question of circumstances for whose behoof it was delivered.2 Gratuitous deeds, such as deeds of provision to children, though held as delivered in the hands of third parties, are still in the ordinary case revocable by the granter. But it is otherwise if the third party be the natural custodier of the deeds of the person favoured, e. g. a parent or guardian.3 If the person in whose hands a deed is placed is favoured by it, and it is held as delivered to him for his own behoof, he is likewise the depositary of it for the behoof of all others interested.4 Entry of a deed in any public register is held equivalent to the most complete delivery to the party. The date of delivery of deeds of provision to children is often of importance in. questions with creditors. It has been recommended that, to make it clear that they are not latent, and to preserve their preference, they should be recorded, or delivered before witnesses; otherwise, whether in the repositories of the parent or of the child, they are presumed not to have been delivered at such a time as will make them effectual against creditors.6 All latent deeds to near relations, to the injury of creditors, are reducible on the ground of fraud, and the creditors do not require to show that the granter of the deed was insolvent at the time. An undelivered deed must always be held latent, and if the person favoured be a son or other near relative living with the granter, it may be questioned if any effectual delivery can be made. Though registration has been recommended, it is not quite clear that it will in all cases take the document out of the latency.7

Tait on E. 164.-2 Maiklem v. M'Gruthar, 29th March 1842.-3 E. iii. 2, 43. Tait on E. 166.- Tait on E. 167. Riddell v. Inglis, M. 11577.— E. iii. 2, 44.- Tait on E. 171.-7 See the Law of Bankruptcy, 117, et seq.

&

PART V.

THE CONTRACT OF SALE.

CHAPTER I.

GENERAL RULES APPLICABLE TO THE CONTRACT.

SECT. 1.-How constituted.

SALE is a contract by which one party engages to transfer property of which he is possessed to another party, in consideration of receiving money of the current coin of the realm, or some security which may be converted into money (such as bank-notes or bills of exchange) in return. The contract is completed by the consent of the parties, buyer and seller, when they are at one as to the subject, the price, and the conditions. In England, by the statute of frauds, no sale for a consideration of £10 or upwards is good unless there have been a complete or partial delivery or payment, or a note made of the transaction and signed by the parties or their agents. 1 In Scotland, however, verbal consent will, in the general case, suffice to constitute the contract, except in sales of land and ships, for which writing is necessary.* The general method of completing the contract is by offer on the one part, and acceptance on the other without undue delay.

Broker. By commercial practice, the contract may be made on both sides by a broker, a person whose profession it is, by the consent of parties, to conduct sales and settle the terms of the bargains. When such a person has been authorized by one party to buy, and by another to sell, he completes the transaction so as to protect it from the statute of frauds in England, and to make it a completed contract in Scotland, by making an entry of the transaction in his books, and giving each party a note of it, called a bought and sold note.2

129 C. II. c. 3. § 17, 9 Geo. IV. c. 14.—* See p. 124, et seq.-2 B. C. i. 435, M. on V. & P. 76.