In pleading the statute of frauds, it is necessary to say that the agreement was not reduced into writing."

By the 48 Geo. III. c. 149, a stamp duty was imposed upon agreements; but this act was repealed by the 55 Geo. III. c. 184, by which it is enacted, that every agreement or minute, or memorandum of an agreement made in England under hand only, or made in Scotland without any clause of registration, 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, where the same shall not contain more than 1080 words (being the amount of fifteen common law folios or sheets of seventy-two words each) shall be subject to a stamp duty of 17.; and where the same shall contain more than that number of words to a duty of 17. 15s., and to a further progressive duty of 11. 5s. for every entire quantity of 1080 words contained therein, over and above the first 1080 words.

But the latter act exempts from the payment of the above mentioned duties every memorandum, letter, or agreement made for or relating to the sale of any goods, wares, or merchandize.

a Mussel v. Cooke, T. 1720. Pre. Ch. 533.

And by the 10th section of this statute it is declared," that from and after the passing of this act, all instruments for or upon which any stamp or stamps shall have been used of an improper denomination or rate of duty, but of equal or greater value in the whole, with or than the stamp or stamps which ought regularly to have been used thereon, shall nevertheless be deemed valid and effectual in the law; except in cases where the stamp or stamps used on such instruments shall have been specially appropriated to any other instrument, by having its name on the face thereof."

A written instrument which requires a stamp,' cannot be admitted in evidence, unless it be duly stamped; and no parol evidence will be received of its contents. If, therefore, the instrument pro duced is the only legal proof of the transaction, and that cannot be admitted for want of a proper stamp, the transaction cannot be proved at all."

The following cases, it will be observed, are decisions upon the construction of the 48 Geo. III. c. 149, which was repealed by the 55 Geo. III. c. 184; but as the latter statute contains similar words in the clause imposing duties upon agreements to those contained in the former statute, varying only the amount of the duties to be paid, those cases will of course also apply to the act of the 55 Geo. III.

1 Phill. on Evid. 6th edit. 486,

G

Where a written paper was delivered by the auctioneer to the bidder, to whom lands were let by auction, containing the description of the lands, the term for which they were let to the bidder, and the rent payable, but not signed by the auctioneer or any of the parties. Thomson, C. B. held that this was not such a minute of the agreement as was required to be stamped pursuant to statute 48 Geo. III. c. 149, nor such a writing as would exclude parol evidence; and a new trial, which was afterwards moved for, was refused, Lord Ellenborough, C.J. saying, that the paper was perfectly collateral to the taking, and was no more than if the auctioneer had told the defendant on what terms he was to hold, and was not like an original minute.a

But in Ramsbottom v. Mortley," it was held that a written paper, signed by the auctioneer only, and delivered to the bidder to whom lands were let by auction, containing the description of the lands, the term for which they were let to the bidder and the rent payable must be stamped.

And any writing which would be evidence of part of the contract only must be stamped."

If on a sale of land a single lot is sold for 201 an agreement for the sale and purchase of it requires a stamp; but if the same person is declared the highest bidder for several lots, although all the

a Ramsbottom and others v. Tunbridge, 2 Maule & Sel. 434.
b2 Maule & Sel. 445.
c. Ib.

lots together amount to more than 20%. no stamp is required if the lots separately are of less value than 201. a distinct contract arising upon each lot."

Where the same paper contains two different contracts for the purchase of different lots by different persons, and an action is brought upon one of such contracts, one stamp affixed on that part of the paper which contains. the contract of sale with the defendant, and to which the stamp officer's receipt for one penalty refers, will be sufficient to render the agreement admissible in evidence."

• Emmerson v. Heelis, 2 Taunt. 38.

b Powell v. Edmunds, 12 East, 6.

84

CHAP. II.

OF THE DUTY AND RESPONSIBILITY OF AUCTIONEER IN REGARD TO VENDOR, AND OF THE MODE OF ENFORCING THE SAME.

SECT. 1.-Of the Auctioneer's Duty in taking care of Goods intrusted to him for the Purpose of Sale.

THERE does not appear to be any case in which

it has been decided to what extent an auctioneer is responsible for the safety and preservation of goods intrusted to his care for the purpose of sale; but there is no doubt that in this respect he stands upon the same footing as a factor, and therefore it may be advisable to state briefly the extent to which the latter is responsible."

A factor is not answerable against all events for the safety of goods which he has in charge; but it is sufficient if he do all that by his industry

In Maltby v. Christie, 1 Esp. Ni. Pri. Rep. 340, Lord Kenyon expressed an opinion that an auctioneer was only bound to take such care of goods intrusted to him for

the purpose of sale as he would do of his own, but that for a loss arising from misfortune or unavoidable accident he was not liable.