Care must be taken in preparing the deed to state truly the consideration paid by the purchaser, and upon which ad valorem duty will have to be paid; as the omission to do so, although it will not affect the sufficiency of the stamp or the validity of the deed (q), will expose the parties who prepare the deed to severe penalties, and the vendor to an action by the purchaser for the return of the unexpressed consideration (r); where fixtures, standing timber, or any other parts of the inheritance are taken at a valuation, its amount must be included in the consideration; but moveable chattels which pass by delivery may be handed over, and receipts may be given for them and for their price; if, however, they be for any reason assigned by deed, the ad valorem duty attaches, and their price must be stated; and it would appear from a recent case that the recital in a deed of such sale and delivery (which has been very frequent in practice) renders the duty payable, unless the articles are of such a kind as would come under the description of goods, wares, or merchandize (s). Upon the purchase of an equity of redemption the mortgage debt is subject to duty, and its existence must therefore appear upon the face of the deed (t); where freeholds or leaseholds are purchased together with copyholds, at an entire price, it is necessary, for the purposes of the Stamp Act (u), to apportion the price between the copyholds and the other property (f); and this may be done so as to reduce the duty to a minimum, without any regard to the actual relative values of the estates; so, where estates are purchased by two or more at an entire sum, and the purchasers take separate conveyances, or where estates of different tenures or held under different titles are purchased at an entire sum, but are conveyed to the purchaser separately by separate instruments, the purchase-money may, for the purpose of diminishing the duty, be apportioned on the face of the conveyances without regard to the actual value of the estates, or (in the case of there being several purchasers) to the pecuniary arrangements between the parties: but under the new scale of duties only a very trifling saving can be thus effected.

Whether written agreement should be recited in subsequent deed to 26; 55 Geo. III. c. 184, s. 8; Gingell v. Purkins, 19 L. J., N. S. Exch. 129. See also 13 & 14 Vict. c. 97, s. 10, remitting penalties incurred prior to the 20th March, 1850, in respect to the omission from leases of the compensation paid by the lessee to the party who held the original agreement for the lease; see Att.-Gen. v. Brown, 3 Exch. 662.

Recitals of objections in deed of confirmation.

Consideration-to be truly stated.

Duty pay(p) 8 Ves. 431. 250.

(q) Tilsley on Stamps, 1st ed. (r) See 48 Geo. III. c. 149, ss. 22 able on fixtures, timber, etc.

As to chattels passing by delivery.

Recital of sale - its effect.

Apportionment of consideration, on purchase of copyholds and other property.

(s) Horsfall v. Hey, 2 Exch. 778.

(t) 55 Geo. III. c. 184, Sched. title " Conveyance."

(u) Inasmuch as the duty upon the copyholds is charged on the surrender.

And where before the 11th October, 1850 (w), the consideration was the actual transfer of a sum of stock, or the grant of an annuity or rent-charge of uncertain duration, as no ad valorem duty was payable, no penal liability was incurred by omitting to state, or by misstating the consideration: and this seems to be still the case as respects the grant of the annuity or rent-charge; but under the late Act, where the consideration consists wholly or in part of any stock or security, the value thereof is to be considered as purchase-money, and to be stated in the conveyance; and is to be ascertained as follows, viz., in the case of stock in any of the public funds, or any Government debenture or stock of the Bank of England or Bank of Ireland, or any debenture or stock of any corporation, company, society, or persons or person, payable only at the will of the debtor, according to the average selling price thereof respectively, on the day or on either of the ten days preceding the date of the conveyance, or if no sale shall have taken place within such ten days then according to the average selling price thereof on the day of the last preceding sale; and in the case of a mortgage, judgment, or bond, or a debenture, the amount whereof shall be recoverable by the holder, or any other security whatsoever, whether payable in money or otherwise, then according to the sum due thereon for both principal and interest (x).

In the case of a conveyance under the Lands Clauses Consolidation Act, or any Act of Parliament containing similar provisions, care should, of course, be taken, that the sum expressed to be paid as the consideration for the purchase of land, does not include money paid merely by way of compensation for damage to adjacent property; as the latter amount is not subject to duty.

Sale in consideration of transfer of stock or grant of annuity.

Compen(w) This date should be inserted, supra, p. 109, instead of 10th Oct.

(x) Schedule to 13 & 14 Vict. c. 97; quaere, whether either this or the general Stamp Act provides for the case of a conveyance in satisfaction of a simple-contract debt already bona fide due to the purchaser? See, however, Gingell v. Purkins, 19 L. J., N. S. Exch. 129. As to the amount of duty, see next Chapter.

Except in the case of a feoffment (a mode of conveyance which is seldom adopted except on sales by a Corporation) it has become unusual to insert the operative words of conveyance in the past as well as in the present tense (y).

The reference to the Statute which rendered a lease for a year unnecessary, although still of frequent occurrence, is rendered useless by the subsequent enactment, that all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be held to lie in grant as well as in livery (z).

It is still the general practice, even when the purchaser has no wife to whom he was married before the late Dower Act came into operation, to convey the estate, if freehold of inheritance, to the ordinary uses to bar dower, in order to avoid the necessity, on future sales, of proving the nonexistence of any such wife; where, however, the draftsman is aware that no such wife exists, it seems to be sufficient to recite the fact; the purchaser himself should, if practicable, be the releasee or feoffee to uses. sation money on sale to Railway Company.

Operative words used only in present tense.

Reference to Act dispensing with lease for year unnecessary.

Dower uses -whether to be inserted.

As to forms of conveyance in the Colonies.

(y) Freehold lands in possession in the Australian Colonies are, it is understood, generally conveyed by feoffment. As to real property in the East Indies, see Freeman v. Fair-lie, 1 Moore's Ind. App. 305; and Gardiner v. Fell, 1 J. & W. 22. Except in Calcutta, and those localities where land has been acquired and subsequently sold by the Indian Government, there does not appear to be any real estate which can be considered as held in fee simple; the ordinary English conveyances are, however, generally adopted in transactions between Europeans; of course, in preparing in England a conveyance of land in India, treated as freehold, the recent Acts would not enable the draftsman to dispense with a lease for a year; as to the forms of conveyance in the North American Colonies, and West India Islands, see Appendix to Burton's Compendium, and 2 Jarm. Conv. by S. 398 et seq. Our Courts will apply the general law of this country (being abstractedly just, and not exclusively founded on any peculiar or technical rule) to questions relating to land in a colony where a different system of jurisprudence prevails, unless it is shown or suggested that the Laws of the Colony are different on the point in question: Ben-tinck v. Willink, 2 Ha. I. As to the assurance of customary freeholds, see the late case of Graham v. Jack-son, 6 Q,. B. 811, and authorities there cited.

(2) 8 & 9 Vict. c. 106, s. 2.

In describing the parcels, a description by reference to a schedule, or to a schedule and map, has become as usual as it is convenient (a). It has been held that the steward of a manor may insist upon a surrender containing a substantive description of the tenements, and may object to a mere reference to the description in a former surrender (b).

In a conveyance to a Railway or Waterworks Company, if within the provisions of the recent Consolidation Acts, care must be taken to specify the mines and minerals, if intended to be included; for, unless actually specified, they will not pass (c).