which the prisoner's goods, in a house there described, were insured against fire, and upon this policy a memorandum was indorsed, stating that the goods insured had been removed from the house described in the policy to another house mentioned in the memorandum, in which last-mentioned house the prisoner was charged with having committed the felony; the policy was properly stamped, but the memorandum had no stamp; and the objection taken for the prisoner was, that in support of the charge it was essentially necessary to shew, that there subsisted a legally effective contract, and that, by the express provision of the stamp-acts, the memorandum in question not being stamped could not be given in evidence, or be good or available in any manner whatever; and a distinction was drawn between this case and the above-mentioned, where an unstamped forged instrument was admitted in evidence against the party charged with having forged it, or with uttering it knowing it to be forged. The point was reserved for the opinion of the Judges, and argued in the Exchequer-Chamber; and judgment was afterwards given at the Old Bailey, that the prisoner should be discharged. If an instrument, which ought to be stamped, is proved to have been lost, parol evidence of it's contents may be admitted, without proof of the stamp being regular; it may be presumed under the circumstances of the case, that the instrument was duly stamped, where the contrary is not shewn (1). In the latest case upon this point, on a question of settlement between two parishes (2), it appeared that an indenture of apprenticeship, which had been regularly executed thirty years before, was delivered to the apprentice at the end of the term, and lost; that a premium was paid with the apprentice; and further, that the parish in which he had served under the indenture, had for many years treated him as one of their parishioners; on the other (1) R. v. East Knoyle, Burr. Set. Case, 151. I Bott. 547. S. C. R. v. Badby, 1 Bott. 549, S. P. (2) R. v. Long Buckby, 7 East, 45 Dd 2 side side it was proved by the deputy register and comptroller of the apprentice duties, that it did not appear that such an indenture had been stamped with the premium stamp, or enrolled, from the time of the date to the time of the trial of the appeal; but the Court of King's Bench were of opinion, that the Court below were right in presuming, that the indenture had been properly stamped. "The question before the Justices," said Lord Ellenborough, "was, whether the presumption, that all was rightly done after the lapse of so many years, was sufficiently rebutted by the negative evidence of the officer; they thought not, and we cannot say, that they have done wrong; for the presumption of law is to be favoured, and against the negative evidence they may have set the possibility of an irregularity in the returns made to the office." If an action cannot be brought upon an agreement, until it is stamped, it must be stamped before the commencement of the action but if it is an agreement, which may be stamped on the payment of a penalty, then it may be stamped during the action (1). In some cases the legislature has declared, that the paper cannot be stamped after it has been written, as in stat. 35 G. 3. c. 63. s. 14. concerning sea-insurances (2). In other cases it is declared, that a penalty shall be incurred by writing on unstamped paper; and that the instrument is not available in evidence, until the duty and penalty are first paid, and a receipt for them produced, and until the instrument is marked with a proper stamp (3). Here the defect may be cured by having a proper stamp affixed, which may be done by paying the duty, together with the penalty for not having the instrument stamped within the time limited (4), In other cases the legislature only impose a penalty for not having the instrument duly stamped; and in these, though (1) 9 Ves. jun. 252. II Ves. jun. 595. (2) Roderick v. Hovil, 3 Campb. 103. (3) St. 5 & 6 W. & M. c. 21. 9. 11. 12 Ann. st. 2. c. 9. s. 25. St. 37 G. 3: c. 136. s. 2. (4) R. v. Bishop of Chester, 1 Stra. 624. the the party would be liable to a penalty, yet the paper may be given in evidence, though unstamped (1). It has been before mentioned (2), that the defendant after paying money into court, in an action on a bill of exchange, cannot object to the sufficiency of the stamp. The payment of money admits the validity of the instrument. ments. By the stat. 48 G. 3. c. 149. (3), which regulates the Agreepresent stamp duties, every agreement, minute or memorandum of agreement, (not particularly exempted,) that is made in England under-hand only, or made in Scotland without any clause of registration, is liable to a stamp in proportion to the number of words contained, when the subject-matter is of the value of 20l. or upwards, whether the same shall be only evidence of a contract, or obligatory upon the parties from its being a written instrument. An agreement is to be stamped in proportion to the number of words, which it contains, not according to the number of items agreed upon. But if the parties add another item to an agreement, which is already complete and has been executed between them, an additional stamp ought to be annexed, to make such new item available. As, if two persons lay a wager, and write it down in the form of an agreement, which is stamped, and afterwards by another agreement, indorsed on the first, they consent that the bet shall be doubled; here there ought to be two agreement-stamps, or the party cannot recover on the last bet (4). A written acknowledgment of the payment of money, stamped as a receipt, is evidence of the fact of payment, although there may be other writing on the same paper amounting to an agreement, provided this does not in any manner controul or qualify the former part. (5) (1) R. v. Pearce, Peake N. P. C. 75. (2) Israel v. Benjamin, 3 Campb. 40. Ante, p. 143. (3) See also St. 23 G. 3. c 58. § 3. St. 35 G. 3. c. 30. s. 1. 6. St. 37 G. 3. c. 90. s. 1. 6. (4) Robson v. Hall, Peake, N. P. C. (5) Grey v. Smith, I Campb. 387. Dd 3 A cognovit being a mere acknowledgment of an account without any mutuality, does not require a stamp. But if there be any thing of agreement beyond the mere authority to enter a cognovit, then a stamp becomes necessary. Thus, where the defendant gave a cognovit to the plaintiff on unstamped paper, by which he agreed to confess, that the plaintiff had sustained a- damage in the action to the amount of 30l., on which no judgment was to be entered, unless the defendant made default in payment of the sum of 51. by instalments, together with costs to be taxed, the Court held, that, in consequence of the terms which had been added, the paper in question amounted to an agreement; but that it was an agreement for less than 20l., and therefore not liable to a stamp. (1) The following particulars are exempted from stampduties imposed on agreements. (2) 1. Any label or memorandum containing the heads of insurances to be made by the Royal Exchange Assurance and London Assurance. 2. Memorandum or agreement for granting a lease or tack, at rack-rent, of any land or tenement, under the yearly rent of 51. Whether a particular agreement is to be considered as a lease, (in which case it will require a lease-stamp,) or merely as an agreement for a lease, must depend entirely on the intention of the parties, as it is to be collected from the whole of the instrument. If the words are that the one party does thereby demise, &c., or that the other party shall have, &c., and no other words appear to qualify the expression, they are to be construed as a lease (3). (1) Ames v. Hill, 2 Bos. & Pull. 150. Reardon v. Swaby, 4 East, 188. S. P. (2) St. 48 G. 3. c. 149. See also St. 23 G. 3. c. 58. s.3. St. 35 G. 3. c. 30. s. 1. 6. St. 37 G. 3. c. 90. s. 1. 6. And (3) Drake v. Munday, Cro. Car. 207. Maldon's case, Cro. El. 33. 5 T. R. 167. where where the instrument appears to have been intended to transfer a present interest, or where it contains words of present demise without any thing to shew that the parties had in contemplation a mere executory contract, the instrument will be considered as an actual lease, notwithstanding there may be a stipulation for executing a subsequent lease under seal (1). If indeed the words do not import immediate possession, (as where it is agreed that the party shall have and enjoy the land, &c.) such a stipulation would warrant the conclusion, that the instrument was intended, not as of itself a perfect lease, but as an agreement for a lease. (2) 3. Memorandum or agreement for the hire of any labourer, artificer, manufacturer, or menial servant. An agreement for the assignment of an apprentice from one master to another is not within the meaning of this clause; the term "hiring" not being applicable to an apprentice. (3) 4. Memorandum, letter, or agreement made for or relating to the sale of any goods, wares, or merchandize. Upon this clause it has been determined, that an agreement by the defendant to take a share of some goods, which had been bought by the plaintiff on their joint account, and to pay for them at a certain time, is an agreement relating to the sale o oods, and therefore exempted from a stamped duty (4); so also is an agreement by a broker to indemnify his principal, for whom he bought goods, from any loss on a re-sale (5); or a guarantie for |