mising to deliver them back immediately afterwards. Upon this
representation the deeds were delivered to the younger son, and
having thus obtained possession, he refused to return them, and
brought his ejectment. In the course of a suit by the eldest son
to have the deeds delivered up to him, and for an injunction to
restrain the action, Lord Eldon makes the following observa-
tions:-"If the father executed these deeds for the purpose
which the plaintiff alleges, namely, to make a fraudulent exhibi-
tion of them, as proving the qualification of his son, to defeat any
prosecution that might have taken place against him by the law
of the land, if he lent himself to a purpose which was contrary
to the policy of that law, it might have become a considerable
question, if the younger son had got possession of these deeds,
whether a court of equity would have done anything to relieve the
father. The deeds were left in the possession of the father till
his death, and the eldest son then obtains possession of them.
He states in his bill that he thought it necessary to shew them
to his brother, to enable him to win this bet, intimating that he
was very wrong in so doing, and contending that he had no quali-
fication; but he lends himself to the purpose of imposing upon the
person with whom the wager was made. That having been done,
looking to any purpose

and whether or not the younger son was
beyond that which the elder son says was his pretence, he turns
round, as the plaintiff alleges, and says, 'Now I have got these
deeds, I shall give notice to the tenants not to pay their rents to
you any longer, but to pay them to me as owner of the estate;'
and he brings an ejectment to get into possession. Primâ facie,
with these deeds in his hands, being a conveyance from the father
who was tenant in fee, there was nothing to impede that eject-
ment; and the plaintiff accordingly files his bill for an injunction
and the delivery of the deeds. Recollecting the representation.
that was made on both sides, perhaps it might not have been
very much out of the way if a court of equity had said, 'We will
have nothing to do with it; you may make what you can of it at
law.'"

In Cecil v. Butcher1, A., being apprehensive that his son, who 12 Jac. & Walk. was fond of the diversion of sporting, might become the object of 565.

a prosecution as an unqualified person, executed a conveyance to

him as a qualification. Except for a few days, during which he gave it to his solicitor to

possession of the deed.

keep it for him, A. never parted with the
The existence of the deed was carefully

concealed from the son, and on A.'s death it was not found among his papers, having been probably either lost or destroyed. On a bill filed by the son to have the benefit of this conveyance, the court refused to assist him. "The doctrine of courts of law on these cases is well settled; but we are here in a court of equity, and we must consider the subject with reference to the numerous authorities upon it, and must attend to the principle to be collected from them. They have not depended simply upon the question whether the party has made a voluntary deed, nor merely whether, having made it, he keeps it in his own possession; nor merely whether it is made for a particular purpose; but when all these circumstances are connected together, when it is voluntary, when it is made for a purpose that has never been completed, and when it has never been parted with, then the courts of equity have been in the habit of considering it as an imperfect instrument. If it was understood between the parties that it should only be kept in readiness to be used if wanted, or if it is made ex parte, and never intended to be divulged to the grantee, unless the particular purpose requires it, the question is, whether there is not then a locus pœnitentiæ; if, under such circumstances, the grantee furtively gets possession of the deed, though it is good at law, yet he has obtained it contrary to the intention of the grantor, who never meant him to have it. And will not a court of equity at least refuse him its assistance? will be found to pervade all the cases. It may, perhaps, when the transaction is known to both the parties, rest upon the supposition of a collateral agreement between them that the deed should not be used-should not be called forth into life, unless wanted for the special purpose; and that the deed being executed on the faith of that agreement, it is contrary to good conscience and equity to call for it, and apply it beyond the purpose for which the grantee knew it to be intended." And after a survey of the authorities, his Honor thus concludes: "This is a view of all the cases; and difficult as it may be to extract a principle from them, yet I think there is a great proponderance of authority in support of the proposition, that in a case where a voluntary deed is made without the knowledge of the grantee, when it is made for a special purpose for which it was never required to be made use of, when it has been kept in the hands of the grantor without ever being acted on, a court of equity will not relieve upon it;” and accordingly his Honor refused to interfere in the case before him.

This principle

Finally, it may be observed, that a question in the nature of that considered in the preceding pages has been much discussed in a recent case, in which all the authorities are referred to. The circumstances, however, of this case are of so peculiar a character as to render anything more than a simple advertence to it unnecessary 1.

1 Hill v. Gomme, 4 Jur. 165.

pressed," 90.

(3)" Principal or only Deed,"

(4.) "The Purchase or Consider- 17. Mortgages exempted from the ad

ation-money therein ex

4. Apportionment of the ad valorem 19.

companying the Deposit of Title
Deeds, 98.

Duty, 90.

in Consideration of a Fine, &c., 99.

1. Preliminary Observations.]-Subject to certain exceptions specified in the stamp acts, no instrument in writing, whether it be a deed or a mere agreement, can be given in evidence in any court, unless it be impressed with a stamp of the value prescribed by the 55 Geo. 3, c. 184, the stamp act now in force. Where the instrument in question is a deed, it ought to be

Doe v. Whittingham, 4 Taunt. 20.

? Attwood v.

Small, 7 Barn.

& Cr. 390.

French v. Patten, 1 Camp.

72.

stamped before execution; but by the 37 Geo. 3, c. 136, s. 2, the stamp may be affixed afterwards, on paying a penalty of 107. for every skin of parchment or sheet of paper; and by the 44 Geo. 3, c. 98, s. 29, this penalty may be remitted if the application be made within twelve months after the execution of the deed, and the commissioners be satisfied that there was no inten

tion to defraud the revenue. On payment of the penalty as well as the duty, the stamp now in use may be affixed to a deed made before the 55 Geo. 3, and will make it good, the old stamp not being to be had at the office 1. Different stamps are prescribed according to the nature or magnitude of the transaction,-according as the instrument is a mere agreement or a deed,—a sale or mortgage, lease or settlement.

ར་

2. Stamp Duty on Agreements.]-Every agreement, minute, or memorandum of an agreement made in England, under hand only, (and not otherwise charged or exempted from all stamp duty), where the matter thereof shall be of the value of 201. or upwards, together with every schedule, receipt, or other mat"ter put or indorsed thereon, or annexed thereto," shall pay a duty of 11. when it does not exceed fifteen folios, and where it contains more, 17. 158.; and for every entire quantity of fifteen folios over and above the first fifteen, a further progressive duty of 17. 58. But where the agreement is constituted by letters, it will be sufficient if any one of them be stamped with a duty of 17. 15s., although containing in the whole thirty folios or upwards. From the preceding, however, and all other stamp duties, are exempted -among other things not material to be here noticed-agreements for the grant of leases at rack-rent, under 57. a-year.

Where an agreement incorporates by reference a former agreement duly stamped, a 17. stamp is sufficient, although if the clauses referred to were taken as part of it, it would exceed fifteen folios 2, on the ground that, in such a case, the words of the clause of reference are not in the "instrument nor in any schedule, receipt, or other matter, put or indorsed thereon, or “annexed thereto." If the former agreement were not stamped at all, or improperly stamped, then it would seem that the second agreement could not be given in evidence without the additional duty. If the parties to an agreement, after they have signed it, introduce an alteration which cannot be received in evidence for want of a stamp, still the old agreement is at an end 3; and an unstamped agreement, though inadmissible as evidence to

Reed v. Deere, 261.

7 Barn. & Cr.

Turner v. Power, 7 Barn.

& Cres. 625.

s Williams v.
& Bing. 70.
Sawyer, 3 Brod.

'Mounsey v.

7 Barn. & Cr.

403.

prove the agreement, is nevertheless evidence to destroy a former stamped agreement1. On a parol agreement to hold on the terms of former lease, the lease cannot be read in evidence unless duly stamped 2. An agreement by the tenant, that the landlord shall have immediate possession of part of the demised premises, and the residue at a future period, operates as a surrender of the whole term, and requires, therefore, a deed stamp 3. An agreement, with a penalty for the performance of it, is subject only to a stamp of 17. 158.4. 3. Stamp Duty on Sales.]-Every conveyance whatsoever, "upon Stephenson, "the sale (1) of any lands, tenements, rents, annuities, or other "property, real or personal, or of any right, title, interest, or claim, "in, to, out of, or upon any lands, tenements, rents, annuities, or other property(2); that is to say, for or in respect of the princi"pal (3) or only deed, instrument, or writing, whereby the lands or other things sold shall be conveyed to or vested in the pur"chaser, or any other person, by his direction, shall, where "the purchase or consideration money therein expressed (4) "does not amount to 207., pay a duty of 10s.," with a progressively increasing duty as the purchase-money increases in amount *. Where the conveyance is by feoffment or bargain and sale enrolled, the deed of feoffment, or bargain and sale, unless accompanied with a lease and release, is chargeable with a further duty; but if there be both a feoffment and bargain and sale enrolled, such further duty does not attach on either. If the feoffment be for mutual love and affection, as no ad valorem duty is payable, so neither is this additional duty 5.

$ Doe v. Whee

28.

(1). "Upon the Sale."—The provisions of the stamp act, under ler, 2 Ad. & El. the head" Conveyance," which we are now considering, apply

*If the purchase money amounts to £20 and not to £50......£1

Os.

If the purchase or consideration-money therein or thereupon