letting of any lands, tenements or heritable subjects, for any term not exceeding thirty-five years, is liable to the same duty as a lease (k). Every contract which operates as a demise of realty for any determinate term is a lease (7). A lease containing an agreement to take the fixtures cannot be given in evidence without a lease stamp, though only used in an action for the value of the fixtures, and though it has an agreement stamp (m). And a lease containing a distinct agreement not ancillary to the lease requires stamps of both kinds (n).

The schedule to the act, in the portion relating to agreements, contains four exemptions from stamp duty, of which the first and third are the only ones which call for notice here (o).

The first is an 66 'Agreement or memorandum the matter whereof is not of the value of £5." And, since a separate contract arises in respect of each lot sold at an auction (p), it is not necessary that a memorandum, signed by the purchaser, referring to the particulars on which his name is marked by the auctioneer against the several lots purchased by him, be stamped, although the aggregate exceed £5 in value, if no single lot be of that price (q). But if one or more of the lots so referred to exceed £5, a separate stamp must be affixed for each lot (of land) which exceeds that sum (r).

(k) 33 & 34 Vict. c. 97, s. 96, sub-s. 1.

But a lease made in conformity with such an agreement duly stamped is liable to a duty of 6d. only; ibid. sub-s. 2. For duties chargeable on leases, see post, pp. 416, 432. (1) Add. Con. 1096.

(m) Corder v. Drakeford, 3 Taunt. 382.

(n) Coster v. Cowling, 7 Bing. 456; Lovelock v. Franklyn, 8 Q. B. 371. (o) The other exemptions will be found post, p. 422.

(p) See ante, p. 148.

(q) Emmerson v. Heelis, 2 Taunt. 38; Roots v. Lord Dormer, 4 B. & Ad. 77.

(r) James v. Shore, 1 Stark, 426; Watling v. Horwood, 12 Jur. 48; 33 & 34 Vict. c. 97, ss. 7, 8; post, p. 403.

b.

wares, or

The third is an "Agreement, letter or memorandum made for, or relating to, the sale of any goods, wares or Goods, merchandise." As to what are goods, &c., the reader is merchanreferred to the remarks above made on the same words, dise. as used in the 17th section of the Statute of Frauds (s). Where the defendant signed and gave to the plaintiff, an auctioneer, the following: "Memorandum of £107 had by me of S. (plaintiff), being an advance on books sent in for immediate sale by auction," the memorandum was held to be within the exemption, as relating to the sale of goods (†). But if the main object of the agreement be the obtaining money upon a pledge of goods, the sale of them being merely collateral thereto, the instrument must be stamped (u). An agreement for the sale of goods and the goodwill of a business requires a stamp (v).

Instruments for the sale or transfer of any ship or vessel, Ships. or of any part, interest or share therein, are exempt from all stamp duties (w).

fixed,

The duty imposed must, in general, be denoted by an Stamp, impressed stamp (x); but, in the case of an agreement, an how afadhesive stamp may be employed, which is to be cancelled by the person by whom the agreement is first executed or signed (y). Where the agreement is contained in several

(s) Ante, pp. 148 et seq. A contract for the sale of growing crops within sect. 4 of the Statute of Frauds requires a conveyance stamp; Cattell v. Gamble, 5 Bing. N. C. 46; 6 Sco. 737; and so does a memorandum of the actual sale of fixtures; Horsfall v. Hey, Ex. 778; 17 L. J. Ex. 267, where it was held that the following: "Memorandum that T. has sold to G. all the goods, stock in trade and fixtures in &c." ought to have been stamped as a conveyance.

(t) Southgate v. Bohn, 16 M. & W. 34.
(u) Smith v. Cator, 2 B. & Ald. 778.
(v) South v. Finch, 3 Bing. N. C. 506.

(20) 33 & 34 Vict. c. 97, Schedule, sub. tit. "General Exemptions ;" Appendix, post.

(x) Ib. s. 23.

(y) Ib. s. 36. S. 24 imposes a penalty of £10 for wilfully neglecting to

and when to be applied.

Effect of

want of stamp.

documents sufficiently referring to one another (2), it is sufficient if any one of them be stamped (a).

The instrument should be stamped at the time of execution or signature, though, in most cases, it may be stamped subsequently on payment of the duty and a penalty of £10 and, where the duty exceeds £10, interest on the duty at 5 per cent. (b).

An unstamped, or insufficiently stamped, instrument is inadmissible in evidence, except in criminal cases (c). But it may be stamped by the officer of the court on payment of the duty and a further sum of £1 in addition to the ordinary penalty (d). Where two separate agreements, each requiring a stamp, appear on one piece of paper, the want of a stamp on the one will not affect the other, if properly stamped (e).

cancel an adhesive stamp; and see further s. 25, as to penalties for frauds in relation to adhesive stamps.

(z) See ante, pp. 157 et seq.

(a) Peate v. Dicken, 1 C. M. & R. 422.

(b) 33 & 34 Vict. c. 97, s. 15. In certain cases the commissioners have power to remit the penalty; see ib. s. 26.

(c) Sect. 17. It must be remembered that parol evidence cannot be given of the terms of a written agreement, although such agreement need not have been in writing.

(d) Sect. 16. For further information on the stamp duties, see Griffith's Stamp Duties Digest, and Roscoe, pp. 220 et seq.

(e) Powell v. Edmunds, 12 East, 6.

CHAPTER IX.

THE DEPOSIT.

Ir is usual, at auction-sales, to require part of the pur- Deposit, chase-money to be paid down, as a guarantee for the fulfil- what. ment of the contract. This sum, which varies from 5 to 25 per cent. of the purchase-money, is called the deposit. Payment of the deposit is considered as a payment of part of the purchase-money, and not as a mere pledge (a).

The deposit is commonly made payable, in London, to To whom the auctioneer; but in the country, upon sales of estates, to paid. the vendor's solicitor (b). It is the opinion of Mr. Dart that, upon a sale of land, it should not be paid to a mere agent for sale, without express authority from the vendor (c); but upon a sale by auction of goods for ready money it may be so paid, the auctioneer being, in the absence of

(a) Palmer v. Temple, 9 A. & E. 508, 520; 1 P. & D. 379, 387; ante, p. 164. The purchaser cannot elect to forfeit his deposit and avoid the contract; Crutchley v. Jerningham, 2 Mer. 502, 506.

(b) Dr. Bateman's opinion was that the deposit ought to be made payable to the vendor himself. Considering, however, that the sale is frequently conducted in the vendor's absence, the ordinary practice seems more convenient; and, as Mr. Rolla Rouse has pointed out, the deposit would in many cases, e. g., where the property is mortgaged to a party at a distance, ignorant of the sale, be safer in the hands of a stakeholder.

(c) Dart, 191. The conditions ought always to provide to whom the deposit is to be paid.

How paid.

Cash.

Bill of exchange.

any condition to the contrary, the agent of the vendor to receive the whole price (d).

If any particular time or mode be prescribed for payment of the deposit, the purchaser cannot safely pay it at any other time or in any other mode, except to the vendor himself or by the direction of the latter (e). A purchaser is not entitled to set off a debt due to him from the auctioneer as payment of the deposit, unless he can show that the auctioneer was authorized by his principal to retain the deposit in respect of a debt due to him from the latter (ƒ). No objection can, however, be made, as between the vendor and the purchaser, to the whole of the deposit stipulated for in the conditions not having been paid, if the vendor after the sale has agreed to accept a less sum (g).

It is laid down in Story on Agency (h) that: “An agent authorized to receive payment has not an unlimited authority to receive it in any mode which he may choose, but he is ordinarily deemed entrusted with the power to receive it in money only." And it is undoubted that the auctioneer has no general authority to take a bill of exchange in payment of money which he may be authorized to receive (i). Pay

(d) If the conditions provide merely for the deposit being paid to the auctioneer, that appears to exclude his authority to receive the whole price; Sykes v. Giles, 5 M. & W. 645, 650; Mynn v. Jolife, 1 Moo. & R. 326.

(e) Dart, 191; Young v. Guy, 8 Beav. 147. A purchaser is not liable for any loss that may arise from his following the express directions of the vendor; Warwicke v. Noakes, 1 Peake, 98; Hawkins v. Rutt, ib. 248; Eyles v. Ellis, 4 Bing. 112.

(f) Barker v. Greenwood, 2 Y. & C. 414; Young v. White, 7 Beav. 506; Hanley v. Cassan, 11 Jur. 1088; Sweeting v. Pearce, 9 C. B. N. S. 534; 7 Jur. N. S. 800.

(g) Hanson v. Roberdeau, Peake, N. P. C. 163; cf. Ex parte Gwynne, 12 Ves. 379, 383. But if the auctioneer, without express authority, allow the purchaser to pay part only, the vendor will not be bound thereby.