of witnesses to an agreement is that they may be called upon to give evidence in court that they witnessed the execution of the document by the parties; for, though

AS EVIDENCE.

12596. Usually Conclusive.-Written agreements produced as evidence are usually conclusive; yet

12597. No Evidence.-Written agreements, if opposed, are, in themselves, no evidence whatever, unless there is something to sustain them.

12598. Doubtful Genuineness.—If the party who is sued upon a written agreement fails to appear, and there is no evidence of the genuineness of his signature, the case must break down; though

12599. Sustaining Evidence.-The personal evidence of any one that he saw the signature written is sufficient, whether the name of the person giving such evidence appears upon the document as a witness or not; and,

12600. Positive Evidence.-If the plaintiff himself can positively swear that he saw the defendant sign, that is sufficient; but

WORTHLESS THOUGH GENUINE.

12601. A written agreement may be worthless even though it may be admitted to be genuine; for

12602. Inoperative. There are a hundred ways in which a written agreement may have ceased to operate, though genuine and current on the face of it; thus,

12603. Verbal Alterations.—It has been held in some cases that a verbal understanding between the parties that the terms of an agreement shall be altered is binding; and

12604. Operative Acts.-Though there may be some doubt in the majority of cases whether a verbal understanding, not followed by any operative act, will suffice to upset a written agreement, there can be no doubt that, if such verbal understanding is followed by operative acts, the writing is so far set aside; thus,

12605. Raised Salaries.—If an agreement of service at twenty shillings per week is followed at any subsequent time by a payment of forty shillings per week, the provision concerning twenty shillings becomes inoperative; and

12606. Increased Service.-A written engagement to serve exclusively in any particular capacity becomes spontaneously void by voluntary service in any other capacity, unless express mention is made that the service is exceptional; and

12607. Subsequent Documents.—An agreement may be proved to be wholly void by the production of another of later date which is self-evidently in contravention of the former one; or,

12608. Acts and Permissions.-An agreement may be wholly void by reason of acts done or permitted wholly inconsistent with the original terms of the document.

12609. Lack of Stamping.—A written agreement or deed may fail as evidence for lack of stamping (12623); therefore,

12610. Verbal Better than Written.-In a great variety of cases a verbal agreement is better than a written one; as

12611. Binding.-A verbal agreement, sustained by evidence, is generally binding; and

12612. Subsidiary Evidence.-A written memorandum, though not admissible in evidence without a stamp, may be effectually produced in evidence of the truth of the verbal testimony confessedly relied upon.

STAMPS UPON AGREEMENTS.

12613. Former Exemption.-Formerly all agreements involving an amount of less than £20 were exempt from stamping; and

12614. Half a Crown.-Agreements involving an amount of £20 or upwards were required to be stamped with a half-crown stamp, and half a crown extra for every addition beyond a given number of words; but

PRESENT LAW.

12615. The system of requiring agreements to be stamped according to quantity is now abolished; and

12616. £5 Liable.-Agreements which involve an amount of £5 are required to be stamped; though

12617. Sixpence.-The stamp required upon agreements is now only sixpence, regardless of amount or quantity.

EXEMPTIONS.

12618. Certain agreements are entirely exempted from stamping namely:

12619. Less than £5.-When involving less than £5 (12616); ar. 12620. Hiring.-For the hire of any labourer, artificer, mate facturer, or menial servant :

12621. Bargains.—For or relating to the sale of any goods wares, or merchandise :

12622. Coasting Vessels.-Between masters and mariners a coasting vessels.

DEFINITION.

12623. In considering the stamps required upon agreements, the question again arises, "What is an agreement requiring a stamp ? 12624. Not to Replevy.—An agreement by a tenant under distress, guaranteeing the security of goods seized, and undertaking not to replevy upon condition that the landlord temporarily withdraws (9298), has been accepted as good without a stamp, though the withdrawal of the landlord was a clear acceptance of the terms, and the requisite mutuality of the conditions (12484) completed the requisites of the agreement.

12625. Prospectuses.--A schoolmaster handed his printed prospectus to a party who afterwards sent his two sons to the school. Eventually they were removed from the school without notice. There was a notice in the prospectus that a certain payment was required in lieu of notice if notice should be omitted, and the prospectus was appealed to to sustain the claim. The case was carried into court, and the defendent pleaded the insufficiency of the prospectus, on the ground that it was not stamped. It was decided that a stamp in such a case was needless, and that the payment in lieu of notice must be made.

QUESTION OF AMOUNT.

12626. Face of Document.-As a general rule, the question whether the amount involved in an agreement is sufficient to render it liable to be stamped (12616–19) must be determined by its contents alone, and not by extrinsic evidence; but,

12627. Evidence.-If there is nothing upon the face of an agreement from which the value of the subject-matter can be determined, then evidence may be gone into to ascertain the value, and to determine thereby the liability or otherwise.

EXTREME CASE.

12628. Brickwork.-Under the old law (12613) an agreement for the execution of some brickwork was produced without a stamp, upon the faith of a statement that the original estimate of the work by measurement was under £20. The work, when completed, measured much more than was anticipated, and amounted, in fact, to £48. An attempt was made to set aside the terms of the agreement on the ground of the stamp being omitted, but the objection was overruled upon evidence that £20 was a reasonable estimate of value at the time. But that decision, however, appears

to be a mere “ fluke,” and cannot be relied upon in the generality of parallel cases, where the discrepancy is so great; notwithstanding,

INTERPRETATIONS.

12629. The rules of evidence for the interpretation of agreements are the same as those for deeds (12755).

DEEDS.

CONTRACTS BY SPECIALTY.

12630. Deeds are called "contracts by specialty" to distinguish them from writings which are not deeds, and which are therefore called simple contracts (12447).

12631. Essential.-Deeds are essential to the validity of many transactions; thus,

12632. Conveyances of freehold estates (116): 12633. Leases exceeding three years (1250):

12634. Mortgages; and

12635. All documents conferring estates in real or landed property, must be by deed; and

12636. Deeds of gift (1631);

12637. Special agreements between debtors and creditors 13085-90 must be by deed; and,

12638. Optional.-Many contracts which, in themselves, are not required to be by deed of necessity, may be evidenced by deed, and are often more binding on that account (12675).

MATERIAL FOR DEEDS.

12639. Parchment or Paper.-All deeds must be written or printed upon parchment or paper.

12640. Other Material Inadmissible.—No other material or surface is in any case admissible for a deed.

12641. Parchment Usual.

Though parchment is commonly used for deeds for the sake of its durability; yet,

12642. Paper Sufficient.-Paper, so long as it holds together. and the writing is legible, is as effectual for a deed as parchment.

KINDS OF DEEDS.

12643. Two Kinds.-Deeds are of two kinds, namely, "deeds poll," and "indentures."

DEEDS POLL.

12644. Distinguishing Construction.—A deed poll is distinguished in construction by commencing, Know all men by these presents,"

&c., or otherwise, "To all whom these presents shall come."

12645. One Party.-A deed poll is a grant, or power, or bond, by one person or party of several, in favour of some other person or party; and

12646. Effect. The effect of a deed poll is to commit the person or persons executing it to do or omit some act in favour of another party, without binding or placing that other party under any corresponding obligation.

INDENTURES.

12647. Distinguishing Construction.-Deeds of indenture a distinguished in construction by commencing, "This Indenture witnesseth ;" and

12648. Several Parties.-A deed constructed as an indenture is used when there are two or several parties mutually and respectively bound to certain obligations; thus,

12649. Grants with Covenants.—When one party grants an estate and the other is bound by covenants an indenture is essential. 12650. Indented Edge.-Until a recent date the top edge of the parchment or paper of a deed by indenture was required to be cut in zigzag or waved form, so as to make what was anciently referred to as a veritable indenture; but,

12651. Needless.-Since the 1st of October, 1845, it is no longer necessary in any case to indent a deed.

PROFESSIONAL WRITING.

12652. Without Points. The professional way of writing a deed is to do so without any points or stops whatever; but

12653. With Points.-The insertion of points or stops into the writing of deeds will in no wise impair their validity; and

PROFESSIONAL PREPARATION.

12654. Phraseology.-Professional phraseology in the preparation of a deed is not essential; and

AMATEUR PREPARATION.

12655. Gratis.-Any person may effectually prepare and conduct the execution of a deed, if he does so strictly gratis and gratuitously; but

12656. Penalty of £50.-Any person, not being a qualified