the subject of such terms (k), if the new matter be supported by some known custom, or general understanding ().

This is a tacit annexation of terms, which are not inconsistent with, but rather support, the general transaction between the parties; and which terms, it is to be presumed, they necessarily had in their contemplation when the agreement was formed.

As an illustration of this rule, may be noticed the cases of a custom of the country in relating to tenancy of farms, that the tenant shall have the away-going crop (); or shall, in the last year, till and cultivate the land, being paid a compensation (n); and the instance of a custom that a heriot shall be paid on the death of a tenant for life (0)—customs which shall impliedly prevail; there being nothing on the subject in the lease, or other written instrument, between the parties, to controul their operation (p). And it has recently been decided, that if a lease contain no stipulations as to the mode of quitting, the off-going tenant is entitled to his away-going crop, according to the custom of the country, even though the terms of holding may be inconsistent with such a custom (q).

So, if a written instrument proffered as evidence of a collateral fact has, in the particular instance, no exclusive operation, parol evidence may give a particular operation (»).

It has been held that parol evidence is admissible to shew that a legacy was not intended in satisfaction of a debt (s). Such evidence only rebuts a legal presumption raised by extrinsic evidence (t).

And the law leans against the destruction of an instrument by reason of uncertainty; and presumptively attaches to it those consequences and incidents which, in common sense, are appurtenant to its terms; and which the parties must have understood, and intended should be attached thereto (u).

(1) Holding v. Piggott, 3 Stark. Ev. 1007, 1039.

(m) Wigglesworth v. Dallison, 1 B. & B. 224.

(n) Dalby v. Hirst, 3 Moor, 536; Senior v. Armytage, Holt N. P.R. 197. (0) White v. Sayer, Palın. 211. (p) Ante, 83.

(q) Holding v. Pigott, 5 M. & P. 427; 7 Bing. 465; ante 83. See post, Iudex,Away Going Crops.

(r) 3 Stark. Ev. 1007, 1008, 1040. (s) Cuthbert v. Peacock, 2 Vern. 593. But see 3 P. Wms. 353, Fowler v. Fowler.

(t) 3 Stark. Ev. 1040; cites 1 Wils. 313; Dougl. 40; 1 Stra. 568. (21) 66 Agreements bind not only as to what is expressed therein, but further, as regards all the consequences which equity usage or law attribute, to an obligation by its nature." Code

Thus if, on a written contract for the sale of goods, no time be provided for the delivery, the law adds the term (a), that they be delivered within a reasonable time; and implies a promise to pay, although no such engagement be expressly mentioned.

Where the defendant agreed by a written contract, not under seal, to purchase of the plaintiffs three hundred hogs of bacon, to be delivered at the fixed times, and in specified quantities; and after a part of the bacon had been delivered, requested the plaintiffs, as the sale was dull, not to press the delivery of the residue, to which the plaintiffs assented; it was held, that this was to be understood only as a parol dispensation of the performance of the original contract, in respect to the times of the delivery; and therefore, was not affected by the statute of frauds: and the defendant was held liable for not accepting the residue within a reasonable time afterwards. Lord Ellenborough said, "If this agreement had been varied by parol, I should have thought that there would have been strong ground for excluding the parol evidence. But here, what has been done, is only in performance of the original contract. It is a substituted performance; the original contract remains (y)."

In the case of 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 (z).

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 (a). This rule does not contravene the principles we have just considered; as the effect or

Napoleon, or French Civil Code, bk. 3, tit. 3, sec. 1, art. 1135, and sec. 5, art. 1160. See also, ante, 81.

(x) See Greaves v. Ashlin, 3 Camp. 426. See ante, 16.

(y) Cuff v. Penn, 1 M. & Selw. 21. See also Warren v. Stagg, cited 3 T. R. 591; Thrush v. Rooke, 1 Esp. R. 53; 3 Stark. Ev. 1050. note; 1 Phillipps Ev. ch. 10, s. 2. As to dispensing in toto with a written agreement, by a new parol agreement, to rescind, &c., or accord and satisfaction, see post, Index, Accord and Satisfaction.

(z) 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.

(a) See the cases 3 Stark. Ev. 1015, &c.; 2id. 128; Phillipps's Ev. 6th ed. 583; Collins v. Blantern, 2 Wils. 347; Williams v. Jones, 5 B. & C. 110; per Holroyd, J., Rex v. Inhabitants of Northwingfield, 1 B. & Ad. 912.

result of such evidence is, that the instrument never had any operation: and, on the grounds of policy and 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 shewn by parol evidence (b).

SECTION III.

Of Stamping Agreements.

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 (c) under hand only, or made in Scotland without any clause of registration, (and not otherwise charged in this 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 (d).

"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;

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

(d) See Wickens v. Evans, 4 C. &

£1 0 0

1 15 0

P. 359. This does not apply to a clause in a former agreement referred to only in the 2nd contract, Attwood v. Small, 3 C. & P. 208; 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.

"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.

150 "Provided always, that where divers letters shall be offered in evidence to prove an agreement between the parties who shall have written such letters (e), it shall be sufficient if any one (ƒ) of such letters shall be stamped with a duty of 11. 15s. (g); although 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 (h), 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 (i).

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 G. 4, 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 (k).

If the subject matter of the agreement be of less value than 20%., 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 (7).

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

(f) 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.

(g) Query whether a 17. stamp is not enough, if all the letters together do not contain 1080 words? Parkins v. Moravia, 1 C. & P. 376.

(h) Ante, 2, 5.

(i) Clayton v. Burthenshaw, 5 B. & C. 41, 45; 7 D. & R. 800, S. C.; see Robinson v. Drybrough, 6 T. R. 317.

(k) Sect. 8, see post. As to appraisements by brokers they are required to be in writing, &c., but the broker may, it seems, be called as a witness to prove the value without his appraisement, Stafford v. Clarke, 1 C. & P. 25.

(1) Orford v. Cole, 2 Stark. R. 351; cor. Bayley, J.

An agreement to confess a judgment for more than 20., to secure a less amount, need not stamped (m). Where the contract has for its object as between the parties thereto, a subject which as between them is under the value of 20., 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 207. 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 (n). On an appeal against an order of removal, the appellants, in order to shew 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 shew that the value of the subject matter of the agreement was 207., it did not require a stamp (o). It lies on the party insisting that a stamp is necessary, to shew that the subject matter of the agreement was of the value of 201. (p).

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

(m) Ames v. Hill, 2 B. &. P. 150. (n) 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 docu

ment 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, provides 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.

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

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