partly in writing, signed by the parties, and partly not in writing, but by parol only," and would amount to a contravention of the statute of frauds (p).

With respect to the general question, whether a contract in writing, and required to be so by the statute of frauds, can be wholly waived by subsequent oral agreement, the dictum of the court in the case of Goss v. Lord Nugent (q), is in favour of the validity of such a waiver. "As there is no clause in the act (the statute of frauds) which requires the dissolution of such contracts to be in writing, it should rather seem that a written contract concerning the sale of lands, may still be waived and abandoned by a new agreement not in writing, and so as to prevent either party from recovering on the contract which was in writing." In the subsequent case of Harvey v. Grabham (r), it is said to have been doubted in Goss v. Lord Nugent, whether it was competent to the parties to waive and abandon the whole of the written agreement by a subsequent agreement not in writing.

Plausible arguments, and some strong authorities, may certainly be urged to show that such agreement in writing cannot be so waived by parol. In the first place, the original agreement is valid only by being in writing; the statute of frauds is to receive a liberal construction on the principle laid down in Twyne's case (s); and the maxim nihil tam conveniens est naturali æquitati, quam rerum quodque dissolvi eodem ligamine quo ligatum est, seems to be applicable. The ligamen here is the agreement in writing, which if it had been by parol, would, in law, have been no binding agreement at all. In conformity with this view, it is laid down by Lord Chancellor Hardwicke, in Bell v. Howard (t), "It is certain that an interest in land cannot be parted with or waived by naked parol without writing; yet articles may be so far waived, that if the party come into this court to have a specific execution of them, such parol waiver will rebut the equity which the party before had, and prevent this court from executing them specifically." It is fully settled (u), that such parol waiver is an answer to a bill for the specific performance of a contract; but even in this case the defence must be established

(p) Per cur. Stowell v. Robinson, 3 Bing. N. C. 937.

(q) 5 B. & Ad. 66.

(r) 2 Nev. & P. 217; 5 Ad. & E. 61, 74.

(s) 3 Co. 80.

(t) 9 Mod. 302.

(u) Price v. Dyer, 17 Ves. 356, 363, and Robinson v. Page, 3 Russ. 114, 119; also Coles v.. Trecothick, 9 Ves. 234, 249 a.

with the greatest clearness and precision; "and the parties must be placed in the same situation in which they stood before the contract was entered into."

It may be laid down as clear, that in general where an obligation is created merely by simple contract, it may, whether reduced into writing or not, be entirely dissolved by subsequent oral agreement. As to the contracts, to the validity of which writing is rendered essential by statute, it has never certainly been decided that they may be waived without writing; and Lord Hardwicke's dictum is as much opposed to such a waiver, as that of the court in Goss v. Lord Nugent seems to favour it (x).

In the case of a specialty, it is clear that a subsequent parol, or even written agreement, not under seal, dispensing with or varying the time or mode of performance of an act covenanted to be done, cannot be pleaded in bar to an action on the deed, for non-performance of the act in the manner prescribed (y).

It is clear that parol evidence is always admissible to defeat a deed or written contract, on the ground of illegal consideration, duress, or fraud; although such oral testimony directly contradict the statements in the instrument (z). This rule does not contravene the principles we have just considered; as the effect or result of such evidence is, that the instrument never had any operation: and, on the grounds of policy or necessity, this rule may be supported.

An action on the case is maintainable for fraudulent misrepresentations as to the value of a public-house business, &c., although such representations were not embodied in a subsequent written agreement and conveyance of the premises, and could only be shown by parol evidence (a).

(r) 5 B. & Ad. 53. On this subject see also Sugden, V. & P., and Phill. Ev. 776, 8th ed.

(y) See Littler v. Holland, 3 T. R. 590; Peytoe's Case, 9 Co. R. 77 b. See Kaye v. Waghorn, 1 Taunt. 428. This has no reference to cases, in which under a new agreement, though not under seal, there has been actual satisfaction to the covenantee, &c.; see Index, Accord and Satisfaction.

(z) See the cases 3 Stark. Ev. 1015, &c.; 2 Id. 128; Phillipps's Ev. 8th ed. 757; Collins v. Blantern, 2 Wils. 347; Williams v. Jones, 5 B. & C.

I

110; per Holroyd, J., Rex v. Inhabitants of Northwingfield, 1 B. & Ad. 912. As to fraud, see per Chamber and Gibbs, J., in Pickering v. Dowson, 4 Taunt. 779; per Abbott, C. J., Kain v. Old, 4 D. & R. 6; per Bayley, B. Dobell v. Stevens, 5 D. & R. 492; 3 B. & C. 623, S. C.

(a) Dobell v. Stevens, 3 B. & C. 623; 5 D. & R. 490, S. C.; Meyer v. Everth, 4 Camp. 22. Aliter in the case of misrepresentation without fraud not embodied in the written agreement, Flinn v. Tobin, 1 M. & M. 367.

SECTION III.

Of Stamping Agreements.

1. What Agreements require a Stamp. | 3. Of the Omission to stamp Agreements. 2. Of Stamps in case of several Agree- 4. Of the Exemptions from the Stump

ments.

Duties.

We find in the last general stamp act, 55 Geo. III. c. 184, Schedule, Part I., the following provisions in regard to the stamp duties on agreements.

"Agreement, or any memorandum or minute of an agreement, in England (a), under hand only, or made in Scotland without any clause of registration, (and not otherwise charged in the schedule, nor expressly exempted from all stamp duty), where the matter thereof shall be of the value of 201. 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 indorsed thereon, or annexed thereto (b).

"Where the same shall not contain more than one thousand and eighty words, (being the amount of fifteen common law folios or sheets of seventy-two words each)

"And where the same shall contain more than one thousand and eighty words

"And for every entire quantity of one thousand and eighty words, contained therein, over and above the first one thousand and eighty words, a further progressive duty of.

. £1 0 0

1 15 O

. 1 5 0

"Provided always, that where divers letters shall be offered in evidence to prove an agreement between the parties who shall have written such letters (c), it shall be sufficient if any one (d) of such letters shall be stamped with a duty of 17. 15s. (e); al

(a) As to foreign contracts, ante, 1, and Chitty on Stamp Act, 10.

(b) See Wickens v. Evans, 4 C. & P. 359. This does not apply to a clause in a former agreement referred to only in the second contract, Attwood v. Small, 3 C. & P. 208; 1 Man. & Ry. 246; 7 B. & C. 390, S. C. And an indorsement of the parties' names and dates, is not to be counted in calculating the number of words, Winder v. Fearon, 4 B. & C. 663; 7 D. & R. 185, S. C.; 3 East, 326.

(c) See Stead v. Liddard, 8 Moore, 2; 1 Bing. 196, S. C.

(d) If the first be stamped it suffices, and subsequent letters relating to the same matter, and forming one agreement, will be admissible in evidence without a stamp, Hemming v. Perry, 2 M. & P. 375; Peate v. Dicken, 1 C. M. & R. 424.

(e) Query, whether a 11. stamp is not enough, if all the letters together do not contain 1080 words? Parkins v. Moravia, 1 C. & P. 376.

though the same shall, in the whole, contain twice the number of one thousand and eighty words, or upwards."

1. WHAT AGREEMENTS REQUIRE A STAMP.-In considering what agreements require a stamp, we should advert to the distinction, before pointed out (f), between simple contracts and specialties; contracts under seal are not to be stamped as agreements, under the provisions in the stamp act which have just been set out. They are to be stamped as deeds, in reference to the provisions under that head or title in the act (g).

The legislature does not require that any agreement shall be reduced into writing, in order that it may be stamped. It only provides, that when in writing, though not necessarily so, a stamp shall be affixed, or the instrument shall not be receivable in evidence. But the late statute, 9 Geo. IV. c. 14, although it renders it imperative that certain promises, &c., should be put in writing, exempts the writing thus required from the operation of the stamp act (h).

If the subject matter of the agreement be of less value than 201., no stamp is required. It follows that agreements, which have no reference to money transactions, and are incapable of being valued by a pecuniary standard or estimate, are not within the stamp act. Therefore, no duty is payable on a written contract to marry (i).

An agreement to confess a judgment for more than 20%., to secure a less amount, need not be stamped (k). Where the contract has for its object as between the parties thereto, a subject which as between them is under the value of 201., no stamp is necessary, although the instrument may collaterally relate to things of greater pecuniary amount. Thus, a carrier's receipt for goods of more than 201. value, expressing that the carrier agreed to deliver the goods, "fire and robbery excepted, carriage paid," is an agreement of less value than 207., and may be produced unstamped in an action against the carrier for the loss of the goods;

the price of the carriage, not the value of the goods, being the primary subject matter of the memorandum (1). On an appeal against an order of removal, the appellants, in order to show that the pauper served more than forty days as an apprentice in the respondent parish, with the assent of his master, produced a written paper purporting to certify that the father of the pauper agreed to give his master eight shillings for the term of his apprenticeship. It was held, that there being nothing to show that the value of the subject matter of the agreement was 207., it did not require a stamp (m). But where the son of J. S. had been arrested, and one W. becoming his bail, J. S. signed an agreement to indemnify W. from all liability he might incur in consequence, it was held that such agreement required a stamp. One of the liabilities to which J. S. subjected himself being to pay the debt for which the son had been arrested, as that must have amounted to 201., the subject matter of the agreement was of that value (n). It lies on the party insisting that a stamp is necessary, to show that the subject matter of the agreement was of the value of 201. (o).

The words of the act are extremely comprehensive as to the description or nature of the memorandum required to be stamped as an agreement. The duty is imposed, whether the memorandum be only evidence of a contract, or be obligatory from its being a written instrument.

Thus the MS. of an advertisement in the Gazette, declaring "that A. and B. had agreed to dissolve their partnership," and signed by them, must have an agreement stamp (p): and a stamp is not rendered unnecessary merely because the memorandum (in

(1) Latham v. Rutley, 1 R. & M. 13. The report states that Abbott, C.J., inclined to doubt whether a stamp was not necessary, but ruled otherwise on the authority of Chadwick v. Sills, id.

15.

The latter was the case of a wharfinger's receipt for goods" to be forwarded." The wharfinger was sued for the loss; Holroyd, J., at the trial, doubted whether a stamp was not requisite, the goods being of greater value than 20., though the wharfage was less, but received the document unstamped; and the court held, on a motion for a new trial, that the paper was properly received. Sed qy. The Carriers' Act, 1 W. 4, c. 68, s. 3, pro

vides that a carrier's receipt or memorandum for goods, acknowledging the payment of the increased rate of charge or insurance payable under the act, need not be stamped. The act only relates to land carriers.

(m) Rex v. The Inhabitants of Enderby, 2 B. & Ad. 205.

(n) Wrigley v. Smith, 5 B. & Ad.

1117.

(0) Id. 206; per Parke, J.

(p) May v. Smith, 1 Esp. R. 283. Aliter, in the case of a mere notice or recital of dissolution, without words of agreement; Jenkins v. Blizard, 1 Stark. R. 418.