grounds on which it was determined, we cannot help considering as somewhat unsatisfactory. The lessor of the plaintiff agreed, by an unstamped memorandum, to let to the defendant a farm, (except three pieces of land, containing five acres, or thereabouts,) to hold from the 25th September then last, for the term of twenty-one years, at a specified yearly rent payable on the 25th January, and at and under all other usual and customary covenants and agreements as between landlords and tenants where the premises were situate. Then followed divers special stipulations on both sides as to the cultivation, manuring, repairs, &c.; and lastly, an engagement on the landlord's part to allow a proportionate part of the rent for the three pieces of land excepted. Lawrence J. expressed an opinion at Nisi Prius that this amounted to a lease, but the Court of King's Bench determined otherwise. The grounds of their judgment were, that until the apportionment of the deducted rent for the three excepted fields, the terms of the bargain were unascertained, and the lessor could not distrain; that it could not be supposed, moreover, that parties would enter into an absolute lease, subjecting themselves to the inconvenience of an extrinsic inquiry into what were the usual covenants in the neighbourhood. Both these arguments appear to us to admit of the answers given to them by the defendant's counsel; that the former would equally apply to every demise in which liberty was reserved to the landlord to resume part of the premises, abating out of a gross reserved rent a proportionable value for the part resumed; or to every case of eviction from part of the land; that the deduction to be made was at once ascertainable by appraisement, and id certum est quod certum reddi potest : and as to the latter, a lease by deed, with an habendum at and under the usual covenants, &c. would be open to the same objection; yet would it be said that that was not a good demise, because a jury might have to inquire by extrinsic evidence what were the usual covenants? Sir James Mansfield said, "We must presume that the parties meant to have a regular lease, [not a word being contained in the agreement as to any future instrument;] and then, according to the doctrine of the modern cases, no present interest is conveyed under this instrument:" a large inference, for which, as we

have before observed, the modern cases undoubtedly afford

no warrant.

1

Tempest v. Rawling was an action by landlord against tenant for the mismanagement of a farm. A paper was produced, impressed with an agreement stamp, headed, "Conditions for letting the four farms after-mentioned," (which were offered in four lots;) it then proceeded, "The term to be from year to year; the lands to be entered on the 3rd February, 1808, and the housing the 12th May, and six months' notice to quit to be given." Then, after stating certain regulations to be observed by the tenant, it proceeded, A lease to be made on these conditions, with all usual covenants." And at the foot of the paper was written, "I agree to take lot 1, (the farm in question,) at the rent of, &c., subject to the covenants;" signed by the defendant, and dated 24th November, 1807. No other lease was executed, but the defendant was let into possession and paid rent. It is manifest that this was not intended as an actual demise, but as a mere preliminary agreement, settling the conditions of a future lease.

2

The next case, Dunk v. Hunter, is equally clear. By an unstamped memorandum, the defendant agreed "to let on lease, with purchasing clause, for the term of twenty-one years, all that house, &c.; entering on the premises any time on or before the 11th Feb. 1820, at the rent of 631. a year, and to keep the premises in as good repair as when taken to; paying on entry 50%. in cash, and the rent payable quarterly; the term for seven, fourteen, or twenty-one years, and the tenant to give a clear year's notice if he intended to leave," &c.—Here the party agreed to let only by a future instrument, containing a particular clause; the commencement and duration of the term were left equally undefined; and the stipulation for the payment of a sum of money upon entry was no less inconsistent with an immediate demise.

In Clayton v. Burtenshaw,3 by an instrument under seal, the defendant agreed to take of the plaintiff certain premises at a fixed yearly rent, no time being specified for the commencement or duration of his interest; he agreed also to take

1 13 East, 18.

2.5 B. & A. 322.

3 5 B. & C. 41.

at a valuation, to be made on a future day, the stock in trade, fixtures, and part of the furniture on the premises. The agreement was executed by the defendant only, and stamped with a lease stamp.-This was determined to be clearly no demise there were no words to bind the lessor-he did not even execute; the language was that of the defendant alone; there was no certainty about the interest he was to take. The instrument, however, was held to require a 17. 15s. stamp under the 55 G. 3. c. 184, as "a deed not otherwise charged:" the 17. agreement stamp applying only to instruments not under seal.

The reader will be able, we hope, to collect from this summary of the cases most of the material points of distinction to be adverted to in the preparing, and, what is more material, in the stamping, of this class of instruments. Words of present demise lead, primâ facie, to an inference that the party meant thereby to demise; but they may be controlled by terms of a contrary import, and the intent is to be collected from the whole document taken together. It is not enough to make the agreement executory only, that the parties contemplate another and more perfect instrument, unless the former be purely "preparatory and referential to" the latter-unless, in short, it amount merely to "instructions for a lease," without the purpose of conveying any legal interest in the mean time. If the estate of the lessee be left uncertain in its commencement or extent, or appear to be contingent on something which may or may not be effected, the inference is strong that the contract is merely preliminary. If by construing it in one sense, the estate would be subjected to any forfeiture or penalty, the parties, if they appear to have been aware of such a consequence, can scarcely be conceived to have contracted in that sense. It is manifest, that to make it an actual demise, it must appear to be the contract of both parties, not, as in Tempest v. Rawling and Clayton v. Burtenshaw, the mere proposal or declaration of one of them.

A party entering into possession under a merely executory agreement for a lease, though he will be chargeable, in an action for use and occupation, with a reasonable return to the landlord for his usufruct of the land, will not, during the first year at least, be subject to distress, since to authorize a dis

tress there must be an actual demise at a rent certain: on the other hand, he will be liable to eviction without notice to quit, retaining his counter remedy for a refusal on the landlord's part to execute a lease pursuant to his agreement.1 But, if he occupy for a year, and pay, or admit in account with the landlord, a certain amount of rent, a new contract of demise from year to year, on the terms of such payment, is presumed, under which the landlord will have a right to distrain, the tenant to require a regular notice to quit. The same circumstance will of course be sufficient to invest both parties with all the other mutual rights incident to a yearly tenancy: for instance, where a party was let into possession under an unstamped agreement for a lease, and paid rent according to the amount therein specified, the landlord was held entitled to sue him for mismanagement of the land contrary to the course of good husbandry, on a count which stated that the plaintiff had demised to him the premises.3

But if, on the other hand, the instrument amount to an actual lease, all the mutual rights of the parties will be derived out of it alone, and it will constitute the only admissible evidence between them. In such case, therefore, the want of a proper stamp will be fatal, for the time at least, to the assertion of any of those rights in a court of justice. This leads us to advert, in conclusion, to the means to be res ted to for curing the invalidity arising from an insufficient stamp.

By stat. 37 G. 3, c. 136, s. 2, the Comissioners of Stamps are empowered to stamp, and so to give full validity to, all instruments (bills and notes excepted) unstamped or impressed with stamps of less than the legal value, on payment of the duty, and a penalty of 107. for each skin of parchment or sheet of paper: and, by 44 G. 3, c. 98, s. 24, where it shall appear to them on oath that instruments (bills, notes, and re

See Dunk v. Hunter, 5 B. & A. 322; Hegan v. Johnson, 2 Taunt. 147. The tenant should therefore take care to stipulate that, if the lease be not executed, he shall at all events continue to occupy for a year.

? Knight v. Benett, 3 Bingh. 361; Cox v. Bent, 5 Bingh. 185.-But where the party merely expressed his readiness to pay what was due, provided the landlord completed certain erections which by the agreement he had engaged to complete,—this was held not to be an admission sufficient to warrant a distress, no definite amount of rent being admitted, and the declaration being only conditional.

3 Tempest v. Rawling, ante.

ceipts excepted) have been wrongly stamped without wilful delay or fraudulent intention, they may remit the whole or any part of the penalty, if the instruments be brought to be duly stamped within twelve months after execution. And if the document be properly stamped when produced in evidence, the Court, whether of law or equity, will not enquire when the stamp was affixed, unless some statute require the stamping to be within a limited period,1 or declare, not merely that the instrument shall not be receivable in evidence, but that no action shall be brought upon it until duly stamped. Even if a rule have been obtained for setting it aside for want of the proper stamp, if it be produced duly stamped, on showing cause, the Court will not interfere: nay, they have even enlarged the time of showing cause for the purpose. It is unnecessary to say that, in all cases of doubt, the safe course is to have a lease stamp affixed; since, if the revenue be satisfied in amount, it is now immaterial whether the stamp be that proper to the one instrument or the other.

W.

.

4

ART. VI.-THE SPECIAL COMMISSION AT BRISTOL.

WHEN Bristol rested from its three days' reign of terror, and the scared inhabitants, as prompt to punish as they had been tardy to prevent, called loudly for legal retribution; it became a question with government of no small difficulty and importance in what manner best to secure the due punishment of the guilty, without some violation of decency and justice on the one hand, or of the rights and privileges of a great corporate body on the other. To remit the trial of such extraordinary offences to the ordinary local authorities, themselves charged to be the causers and promoters, admitted to be the

! As is still the case with bills and notes, and also with indentures of apprentice ship.

2 4 Taunt. 20; 9 Ves. 231, 291; 11 Ves. 595. 37 Taunt. 174.

VOL. VII.

4 Stra. 624; 5 B. & A. 768.

D D