(now fifteen) miles (o) of the place where such drafts or orders shall be issued, provided such place (p) shall be specified in such drafts or orders, and the same shall bear date on or before the day on which they shall be issued; (q) and provided the same do not direct the payment to be made by bills or promissory notes. Also in favour of bills of exchange, or bank post bills, issued by the Governor and Company of the Bank of England, and certain specified bills and orders for the payment of money in and about the public service.

It was the object of the legislature to treat as promissory notes and bills of exchange, and to subject to stamp duty all such drafts and orders as being payable on a contingency, or out of a particular fund, would not otherwise, in strictness of law, have fallen under that denomination. (r)

A letter from F. and Co. to their correspondents, requesting them to pay to H. and Co., or their order out of the first proceeds of goods in their hands, the sum of 6007., and charge the same to their account, was held to require an ad valorem stamp as a bill of exchange. Such a letter cannot be given in evidence under an agreement stamp. (s)

In determining whether an order for the payment of money is a bill of exchange within the meaning of, or according to the definition given by, the act, the first thing to be determined is whether it is an order for the payment of a sum certain on which the duty can attach, and the next, whether it is made payable to the bearer, or to order, or has been delivered to the payee, or to some person on his behalf.

With regard to the first point, it will be observed that the duty is imposed on the money directed to be paid by such order whenever the "total amount" of such money "shall be specified therein, or can be ascertained therefrom." If the total amount is "indefinite" and uncertain, the same duty is charged as on a bill on demand "for the sum therein expressed only." If, therefore, no sum whatever is expressed in the bill, and the total amount made payable is indefinite, and cannot be ascertained, there is nothing to determine the amount of the stamp duty, and the instrument cannot consequently be stamped at all as a bill of exchange, draft, or order, for the payment of money within the act. Thus where the consignor of goods sent to the consignee the following order, "Please to pay to N., on account of O. and Co., the proceeds of a ship

ment of twelve bales of goods, value about 2,0007.," which the consignee, by letter in return, agreed to do: it was held that neither of the two instruments required such a stamp as the stamp acts impose on bills, drafts, or orders, for the payment of money, on the ground that no sum certain was mentioned or expressed in the order. (t) And where one Streather, being indebted to Messrs. Isaac Solly and Sons, gave them the following letter, addressed to the defendant: "Sir,-I shall feel obliged by your paying to Messrs. Isaac Solly and Sons the balance due to me for building the Baptist College Chapel, &c., and their receipt shall be a sufficient discharge to you as treasurer of such chapel;" and this letter being forwarded by the payees to the defendant, the latter wrote in reply: "Gentlemen,—I have received your letter, inclosing Mr. Streather's, and shall be happy to make the payment to you instead of to him, as re quested:" it was held that the order clearly could not be stamped as a bill, draft, or order, for the payment of money, as no sum at all was expressed upon the face of it. (u)

And with regard to the second point as to the delivery of the order to the payee, or some person in his behalf, it has been held, that the act means a delivery either personally to the payee, or to some agent or representative of his, and does not mean a delivery to the person to whom the order is addressed, and that a letter simply authorising the payment of a specified sum of money, addressed and sent to a party, to be kept by him as his voucher and authority for the making of the payment ordered, is not an instrument requiring a stamp as a bill, draft, or order, for the payment of money, delivered to a person on behalf of the payee, within the meaning of the act.

A letter to the following effect was addressed to the defendants,"Gentlemen,-We now authorise you to pay to Messrs. Royds and Co., (having revoked the former order in their favour,) after you have paid yourselves the balance we owe you from the net proceeds of our shipments, &c., one half of the remainder of the proceeds of the said shipments, provided the same shall not exceed the sum of 5,000l." The defendants then wrote to Messrs. Royds and Co., the payees, assenting to this order or authority, and engaging to pay them, after they had liquidated their own debt, a proportion of the remainder of the proceeds of the said shipments not exceeding the sum of 5,0007.; and it was held that the order so sent to the defendants, and accepted by them, had not been delivered to them on behalf of the payee within the meaning of the act, Bing. 372 s. c.

(t) Jones v. Simpson, 3 D. & R. 545.
(u) Crowfoot v. Gurney, 2 M. & Sc. 473; 9

as they were to keep it in their own hands, for their own security as their warrant and authority to make the payment, and were to hold it on their own account and for their own use, and not as agents for or on behalf of the payee. (x)

STAMPS ON PROMISSORY NOTES.

The statute 55 Geo. 3, c. 184, further provides for the amount of stamp duty to be paid on all promissory notes payable to the bearer on demand, or in any other manner than to the bearer on demand; also on all promissory notes for the payment of any sum of money by instalments, or for the payment of several sums of money at different days or times, so that the whole of the money to be paid shall be DEFINITE and CER

TAIN.

any

The amount of duty is regulated as in the case of bills of exchange by the amount of the note, and the time that it has to run. It is provided, also, that all receipts for money deposited in any bank, or in the hands of banker or bankers which shall contain any agreement or memorandum importing that interest shall be paid for the money so deposited, shall be deemed and taken to the promissory notes within the intent and meaning of the act. Also all notes, promising the payment of any sum or sums of money, out of any particular fund, which may or may not be available; or upon any condition or contingency, which may or may not be performed or happen; if the same shall be made payable to the bearer" or to "order," and if the same shall be definite and certain, and not amount in the whole to 201. But if such notes shall not be made payable to the bearer or to order, or if made payable to the bearer or order, if the same shall amount to 201., or be indefinite, they are exempted from duty as promissory notes, and made liable to the duty which may attach on them as agreements, (y) as are also all other instruments bearing in any degree the form or style of promissory notes, but which in law may be deemed special agreements, and which are not thereby expressly directed to be deemed promissory notes.

All promissory notes for the payment of money, issued by the Governor and Company of the Bank of England, are expressly exempted from all stamp duties.

Any words in writing, importing a promise to pay a sum certain absolutely, and at all events are promissory notes within the meaning of the stamp acts, and must be stamped accordingly.

(z) Hutchinson v. Heyworth, 9 Ad. & E. 400, 401; 1 P. & D. 266 s. c. Walker v. Rostron,

9 M. & W. 411.

(y) Post P. 126

The defendant signed an instrument in this form, "John Mason, 14th February, 1836, borrowed of Mary Anne Mason, his sister, 147. in cash as per loan, in promise of payment of which I am truly thankful for, and shall never be forgotten;" it was contended that this was an undertaking to pay in thanks and not money; but it was held by Williams, J., that the instrument clearly imported a promise to repay money borrowed, and was, therefore, a promissory note within the definition of the stamp act, and ought to have been stamped as such. (2) A letter in the following form, "I have received the imperfect books, which, together with the cash overpaid on the settlement of your account, amounts to 807. 78., which sum I will pay in two years," is a promissory note, and must be stamped. (a)

But if the writing displays a conditional promise, a promise to pay a sum certain upon some contingency, or the happening of some uncertain event, and the money mentioned therein is not made payable" to bearer" or" order," such writing must, according to the provisions of the act, be stamped as an agreement and not as a promissory note. So if it displays a conditional promise to pay a sum certain exceeding 201. to the bearer" or "order," out of a fund which may or may not be available, or upon a condition or contingency; it must be stamped as an agreement, and if it is an absolute promise to pay a sum altogether uncertain in amount, then it requires no stamp at all, either as an agreement, or as a promissory note. (b)

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The following written promise was held to be an absolute promise, and as such a promissory note and not an agreement.

"On demand, I promise to pay to Mr. William Stretton the sum of 50%., in consideration of his foregoing and forbearing an action at law in the Court of Queen's Bench, for damages ascertained by consent to amount to that sum, by reason of the injuries sustained by his wife in respect of my non-repair of a footway." (c)

The following instruments have, on the other hand, been held to be agreements, on the ground that they are not promises to pay one definite ascertained sum of money, but entire promises to pay a certain, and an uncertain sum of money, "I promise to pay to James Eastling, my carter, the sum of 657., with the lawful interest for the same, and also all other sums of money which may be due to him." (d) 'I have received

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(c) Shelton v. James, 13 Law J. Rep. N. S. (Q B.) 90.

(d) Smith v. Nightingale, 2 Stark. 376.

the sum of 207. which I have borrowed of you, and I have to be accountable for the said sum, with legal interest.” (e)

“I promise to pay to A. or order the sum of 137. on demand for value received, with interest at 57. per cent., and all fines, according to rule." (f)

The following written promises and undertakings have been held also to be agreements, and as such to require an agreement, and not a promissory note stamp. "Received and borrowed of Timothy Bolton, the sum of 30%., which I do hereby promise to pay with interest, at the rate of 51. per cent. I also promise to pay the demands of the sick club at Haworth, in the county of York, in part of interest, and the remaining stock and interest to be paid on demand to the said Timothy Bolton." "The amount of the sick club charges," observes Parke, J., " was uncertain; so, therefore, was the sum to be paid by Dugdale; the instrument, so far as regarded this contingent demand, could not be a promissory note, and the transaction was entire." (g)

A note in the following form:-" I agree to pay to Mr. Charles Davies, or his order, the sum of 6957, at four instalments, viz., the first instalment to be paid on Monday next, being 2007.; the second, on the settling day at Doncaster after the St. Leger, being 150.; the third, on the settling day after Epsom, being 1507.; and the fourth, on &c., being 1007.," was held to be thus far a promissory note only; but as it went on to say, "957. to go as a set-off for an order of Mr. Reynolds to Mr. Thompson, and the remainder of his debt owing from C. Davies to him;" it was held that such ending and termination of the document took away from it the character of a promissory note, and made it an agreement." (h)

The defendant gave to the plaintiff a memorandum in the following form:-I undertake to pay to Mr. Robert Jarvis, the sum of 67. 48., for a suit of clothes, ordered by Daniel Page ;" and it was held that this was not a promissory note, but a guarantee or agreement respecting the sale of goods. "If the memorandum," observes Parke, B., “contained only a promise to pay 67. 4s. for goods already supplied, it would be a promissory note, and would require a stamp; but the introduction of the word ordered makes all the difference, as it shows that it is a promise to pay for goods if supplied, but which were not then delivered." (i)

(e) Horne v. Redfearn, 6 Sc. 260; 4 Bing. 433 s. c.

(f) Ayrey v. Fearnsides, 4 M. & W. 168.
(g) Bolton v. Dugdale, 4 B. & Ad. 620; 1

N. & M. 412 s. c.

(h) Davies v. Wilkinson, 10 Ad. & E. 100, 104; 2 P. & D. 256 s. c.

(i) Jarvis v. Wilkins, 7 M. & W. 412.