stamp alone will be sufficient, whatever number of parties may have AGREEMENTS joined in the contract (m).

Duty of Solicitor.

§ 29. It may again be here noticed in regard to stamping, as Altered agreeit has already been in regard to other requisites to an agreement, ments to be rethat if it be altered after it has been signed by the parties, stamped. (unless in some very immaterial point, and which does not vary the substance of the agreement itself (n), ) it will be considered as a new and independent contract, and consequently, require to be impressed with a new stamp (o).

§ 30. But although a stamp is necessary for the legal efficacy of an agreement, yet it will be received in evidence, if stamped at any time before it be produced in court; and when stamped, will be rendered efficacious from the time of its commencement (p); hence the stamping of such agreements is often neglected with a view of saving the duty, on the supposition that there will never be occasion to produce it in a court of judicature. This, however, is a dangerous practice, for should the agreement by any means be lost whilst it remains unstamped, no parol evidence will in general (q) be admitted of its contents or of its prior existence; and consequently, no remedy can be had against its infraction by either of the parties (r); whilst if it were duly stamped, parol evidence might be given of its original existence and of its contents; a consideration which (independently of the penalties and punishments im

(m) Baker v. Jardine, 12 East, 235. Davis v. Williams, 13 East. 232.

(n) See ante, p. xi.

(0) See Hammond v. Foster, 5 Durnf. and E. 635. and Bathe v. Taylor, 15 East. 412.

(p) See Burton v. Kirkby, 7 Taunt. 1742. Marsh 480. s. c. But if the stamp be delayed beyond twenty-one days from the date, in case of agreements not under seal, and twelve calendar months when under seal, a sum is required by the act to be paid by way of penalty, before it can be stamped. See 23 Geo. III. c. 158, § 15.

(4) See exceptions to the rule, Long on Personal Property, 57 et seq.

(r) See Rippener v. Wright, 2 Barn. and Ald. 478. 2 Stark. 478.

Stamp is retrospective.

Stamping agree.

ments should not

be deferred.

AGREEMENTS posed in many cases by the act for evading the duty) will lead every Duty of prudent solicitor to take care that if the agreement be not stamped previously to its being signed, it shall be so with all convenient expedition afterwards.

Solicitor.

Denomination of stamp.

Conclusion.

§ 31. With respect to the proper value and denomination of the stamp required to be impressed upon the different species of instruments of which forms are given in the ensuing volumes, these will be noticed at the end of each form. It may be proper, however, generally to remark here, that if the instrument be under the hand only of the parties, the proper denomination will be that of an AGREEMENT, but if it be under the seal of the parties, it will require a DEED stamp.

Should the above sketch appear to the reader to be imperfect, as I fear it may, he will, I doubt not, be good enough to recollect that it was not designed as a complete treatise, nor even as a perfect outline of the law relative to agreements generally, and in the abstract, but of such only as relate more especially to the form and subject matter of a written contract with reference, and as a preliminary introduction, to the PRECEDENTS OF AGREEMENTS ON MISCELLANEOUs subjects, given in the ensuing volumes. If he desire to have a more enlarged view of the rules and doctrines of the law as applicable to the construction of contracts relative to the various species of property, or the rights and interests which may be the subject of executory agreements, he is referred to Powell on Contracts; Fonblanc's Equity; Newland on Contracts; Long on Personal Property; Paley's Principal and Agent; Barton's Elements of Conveyancing, vol. iv. chap. 1., also post, vol. ii. title BOND.

And for agreements relative to the subjects comprised in the SERIES of precedents given in the preceding volumes,-see for those relative to PURCHASES, vol. i. p. 1 et seq. LEASES, vol. iv. p. 1, MORTGAGES, vol. v. p. 1, ANNUITIES, vol. vi. p. 1, DEBTORS and CREDITORS, ib. p. 357, et seq. COPARTNERSHIP, vol. vii. p. 1 et seq. SETTLEMENTS, ib. p. 251.

MODERN PRECEDENTS

IN

CONVEYANCING.

CLASS IX.

MISCELLANIES.

No. I.

* An Agreement to apply for an Act of Parliament to inclose common Fields and waste Lands (1).

(1) Many acts have from time to time been passed from the 20 Hen. II. to the 13th of the late king, and which are still in force, to facilitate the inclosure and improvement of common and waste lands to a particular extent or for particular purposes: but on account of the alteration which the inclosures of wastes and commonable lands must unavoidably make, as well in the rights of the proprietors, as the interests of the parishioners, and to which their assent, could it be unanimously obtained, would in the greater number of cases be binding upon themselves only, and not upon their successors in title, by reason of their having a partial interest only in the land, as being only tenants for life, &c. or of the disabilities of coverture, infancy, &c. ; it is frequently necessary that a particular, or, as it is called, a private act, should be obtained for the purpose; which being a species of assurance placed on record in the highest court of judicature in the United Kingdom, "substantiates, preserves, and perpetuates" the rights of all parties interested in the subject matter of the act; and see 2 Black. Com. 344.

This transcendant power of parliament is now also frequently had recourse to for the accomplishment of various other objects of public and private

Act of Parlia

ment.

Act of Parlia

ment.

Parties.

Recitals.

and county of

AGREEMENTS Lord of the Manor) of, &c. lord of the manor and soil, within the parish of of the first part; (the rector or impropriator) of, &c., rector and owner in right of his church, [or impropriator] of the tithes accruing within the said parish, of the second part; and A. B. of, &c. &c., (tenants of the said manor), (being respectively freeholders and copyholders within the said parish), and the several other persons whose names are respectively hereunto subscribed (having severally a right of common and other rights or interests in the common fields and wastes within the same parish) of the third part. WHEREAS great loss and inconvenience have been heretofore sustained by the parishioners and inhabitants of the said parish of by reason of many of their lands lying intermixed with each other, and dispersed over the common fields within the said parish, whereby all or many of the said inhabitants, proprietors of land in the said parish, have commonable rights over the whole of the said fields, and which are thereby rendered incapable of being cultivated in the best mode of husbandry: And whereas there are divers waste lands within the said parish, whereupon the said parishioners have commonable rights: AND WHEREAS much of the said waste lands might be greatly improved and made more productive and beneficial to the said parishioners, if the same were enclosed and converted into tillage; but the same cannot be done without the authority of Parliament. Now THEREFORE THESE PRESENTS WITNESS, that it hath been, and hereby is, mutually and reciprocally concluded and agreed upon, by and between the several persons parties to these presents, for themselves severally and

WITNESS

agreement to

apply to parlia

ment.

utility; as the making of roads, canals, and perfecting other extensive projects, which cannot be carried into effect without encroaching upon the private property of individuals. The enabling infants, committees of lunatics, tenants for life, bodies corporate, trustees of charities, and others, to convey or assent to the conveyance, exchange, partition, or other disposition of property, which, although calculated to benefit all persons interested in the subject, cannot otherwise be accomplished. But as preliminary agreements between parties competent to bind themselves will be nearly the same in point of form, for whatever purposes the act is formed, I have not thought it necessary to insert more than one precedent of this species of agreement, more particularly as most of the variations which would be induced by a reference to the subject matter of the act, may be easily extracted from the precedents of petitions and bills, which are given in the subsequent part of this work, under the title of "parliamentary forms;" and where will be found the petition and bill founded on the above agreement.

For an agreement between owners of common and waste lands to divide and inclose them upon their own authority, sec post, No. xxxii.

acres, for the

Act of Parlia

ment.

set out

ground for gra

vel, &c.

respectively, [and for their several and respective heirs executors, ad- AGREEMENTS ministrators, (2) and assigns,] as follows, (that is to say) that an application shall be made to Parliament in the ensuing session, or as soon thereafter as may be, at the common expense of them the said (lord) and (tenants) in the proportions hereinafter mentioned, for liberty and authority to inclose, divide, and allot the aforesaid commons and waste lands to and amongst the several persons interested therein, in the proportions and in the manner hereinafter mentioned; and for that purpose to appoint certain persons, therein to be named, to act as commissioners for carrying the said act into execution. AND that the said commissioners shall or may, in the first place, Commissioners set out and apart in such place or places as they shall think most to convenient and proper, such parcel of the said commons and waste grounds, not exceeding in the whole purpose of furnishing gravel, stone, and hard materials, for the making and repairing the several roads and highways now being, or hereafter to be, made in pursuance of the said act, within the said parish of and for such other purposes as the said commissioners shall deem expedient. AND that the said commissioners And mark out shall and may mark out all such public and private roads and ways over or across the said common and waste lands, as they shall think necessary or proper. AND that thereafter one full th part (3) of the residue of the said commons and waste lands, shall be allotted by the said commissioners to the said (lord) for his share or propor- of his manorial rights. tion thereof, as the lord of the said manor, and soil of the said parish, over and above what the said commissioners shall deem it right to allot to him, in respect of his freehold lands within the same parish (4). AND that after such one th part of the said commons And to the recand wastes shall be so allotted, the said commissioners shall set out tor for his glebe. and allot unto the said (rector), [or impropriator] one th part (5)

of the then residue of the said commons and waste lands, in lieu of

roads.

Extra allot

ments to the

lord in respect

(2) It is usual to make parties covenant for their representatives, as well as themselves, but this is not necessary. See ante, Introduction,

P. xi.

(3) A twentieth part is usually allotted to the lord.

(4) The lord is entitled to an allotment in respect of his demesnes, besides his allotment as lord of the manor, Arundell v. Falmouth, 2 Maul. and Selw. 440., for the lord is to be considered as one of the proprietors; and if the law were otherwise, the lord would never consent to an inclosure.

(5) The allotment to the rector or vicar is generally about a fifteenth part.