stances, declare generally, and give the written contract in evidence. Where money has been paid under an agreement, which 2 Eíp. R. 639. has not been performed, it may be recovered in an action for money had and received: and though the agreement be in writing, the party need not declare specially. A case was sent to a jury by way of inquiry of damages 3 Atk. 17. by the court of Chancery, where it appeared that the parties who applied to the court for a specific performance of an agreement, had, by their committee and furveyor, viewed without complaint, the progrefs of the party in repairing premiffes which they at last infifted on being rebuilt. No fpecific performance will be decreed of an agreement 2Bro.Ch.c.140. to renew a lease in confideration of money previously laid 1Eq.Ca. Abr. 18. out by the tenant; such promise is nudum pactum : nor will the case be varied by money having been expended by him after fuch promife.-But if, previous to fuch promise, the tenant had fignified his intention to lay out money, and on that confideration the promife had been made, a fpecific performance would be decreed. SECTION II. Of the Stamps required to Leafes and Agreements. I A LEASE must be ftamped as a leafe by deed, though it be 1 T. R. 737not by deed; for though not by deed, it falls within the 3 Bur. 1563. words of the act that requires a stamp to leases, enumerated among other specialties. The ftatute 23 G. 3. c. 58. which imposes a ftamp duty on "indentures, leafes, and other "deeds," applies to every inftrument that operates as a leafe, whether it be by deed or not: for the impofition of a duty is a mere matter of pofitive inftitution; and as a leafe, by whatever means conftituted, falls within the words, there is nothing in the nature of the thing to take it out of them. A deed is good, though executed before it be stamped,, Str. 624 2 provided that when it is offered in evidence it be stamped, 2 Str. 716. and with the proper ftamp appropriated to the particular inftrument. The author remembers, however, Lord Eldon, when Chief Justice of the Common Pleas, to have spoken of an objection having been taken to an agreement being received Allen v. Thomas,Aff. MaidHone, 1791. Cor. Gould, J. 2 Efp. N.P.777. 6 T. R. 319. 1. Eaft's R. 57. received in evidence, not being ftamped, whereupon it was ftamped during the trial, and then offered in evidence; but it was again objected to, as not being stamped at the time the cause of action arofe. Whether or not the inftrument be valid, by the revenue being fatisfied in point of amount of duty, though the particular ftamp or stamps be not used, seems to be yet unfettled. For, where in affumpfit for ufe and occupation, the defendant offered in evidence a demife by deed of the premiffes in queftion, which would have non fuited the plaintiff under the ftatute 11 G. 2. c. 19. on being produced it was not ftamped with the flamp required for leafes, but was on an agreement ftamp. For this it was objected to; but it was answered, that the ftamp for leafes was a fix-fhilling stamp, and that for agreements of the fame amount; and that therefore the amount of the ftamp duties being fatisfied, that was fufficient; the Judge was of that opinion, and admitted it to be given in evidence. Subsequent and very recent determinations, however, of the Court of King's Bench, fupport a doctrine directly contrary to that in the case above-mentioned. For it has been holden, that articles of agreement under feal cannot be given in evidence unless ftamped with a deed ftamp, although the agreement ftamp is of the fame value, but differently formed: Lord Kenyon obferving that it was abfolutely neceffary that the diftinction of the several ftamps fhould be preserved in courts of justice, as long as that diflination is kept up by the legislature; and that it had often proved the means of detecting forgeries, by comparing the stamps on forged inftruments with those in ufe at the time. On the fame principle it was held that, a promiffory note written upon a stamp of greater value than the proper ftamp required, could not be given in evidence, though the stamp were applicable to the fame kind of inftrument. In this cafe alfo Lord Kenyon faid, However much it were to be wished that an ad valorem ftamp would fuffice in fuch cafes, yet till the legislature fo declare it, no other than the particular particular stamp appropriated by the law to the particular inftrument, can be deemed fufficient; for the words of the ftamp acts were exprefs, and could admit of no other interpretation. An agreement for a leafe of premiffes, though under the 2 Efp. R. 595annual rent of 51. requires a ftamp, if the intereft be a beneficial one. The affignment of a lease by indorsement, agreeable to the ftatute of Frauds muft, it is conceived, be flamped, under ftatute 23 G. 3. c. 58. Though a parol leafe for three years is good, yet if a man Bull. N. P. 269. through caution will reduce it into writing, he muft pay for the ftamp, otherwise the court are inhibited from receiv ing it in evidence. But where a party enters and continues in poffeffion of Cowp. 424. premiffes for any long space of time, as for eighteen years, under articles of agreement for a leafe, which were not stamped, and no leafe ever tendered or demanded, the agreement was held to be a good defence against an ejectment, for though it is in law a leafe, and therefore ought to be ftamped, it would be fet up in equity as an agreement: tamen quare the law of this adjudication? Vide ante, p. 22. If the party fail on an agreement void for want of the Bull, N. P. 140. proper ftamp, he may fucceed notwithstanding in a general count on a quantum meruit. CHAPTER CHAPTER III. Of the Parties to a Leafe, wherein by whom d Fee-fimple, what. SECTION I. Of Leafes by Tenants in Fee-fimple. FEE EE legally fignifies inheritance, and simple is added for that it is defcendible to a man's heirs generally, that Co.Lit. c.1.s.1. is fimply, without reftraint to the heirs of his body and the like. This word " fimple" therefore excludeth both conditions and limitations that defeat or abridge the fee; whereby it appears, that fee in our legal understanding fignifies that the land belongs to us and our heirs, in refpect whereof the owner is faid to be feised in fee. Ibid, s. 11. Com. Dig. tit. "Eftate," (G. 2.) As a man cannot have a more ample or a greater ellate than fee-fimple, tenants in fee-fimple may make leafes without limitation or reftraint. Tenant in fee grants a lease of the reverfion of the faid Cro. Car. 399. premiffes after the determination of a leafe of them by his ancestor, whose lease became void by his death; this fecond leafe therefore is alfo void, for the leffor being in poffeffion, had no reverfion to grant. Eftate-tail, what. 13 E. I. c. I. 2 Bl. Com. p. 113. SECTION II. Of Leafes by Tenants in Tail. TENANT in fee-tail is by force of the ftatute of Westminfter the second, commonly called the ftatute de donis, which changed the fee-fimple conditional at common law into this estate-tail. Eftates-tail, are either general, or Special. Tail-general is where lands and tenements are given to one, and the heirs of his body begotten; which is called tail-general, because how often foever fuch donee in tail be married, his iffue in general by all and every fuch marriage is, in fucceffive order, capable of inheriting the eftate-tail, performam performam doni. Tail-fpecial, is where the gift is reftrained to certain heirs of the donee's body, and does not go to all of them in general; as where lands and tenements are given to a man, and the heirs of his body on Mary his now wife to be begotten; here no issue can inherit, but fuch special issue as is engendered between thofe two; not fuch as the hufband may have by another wife. And here we may observe, that the words of inheritance (to him and his heirs) give him an estate in fee; but they being heirs to be by him begotten, this makes it a fee-tail, and the perfon being also limited, on whom fuch heirs fhall be begotten, (viz. Mary his prefent wife,) this makes it a fee-tail-fpecial. And note, the word heirs is applied only to one perfon; in the cafe of females, indeed, they take together, and are called coheirelles. Eftates, in general or fpecial-tail may, alfo, be either in Ibid. p. 114. tail male, or tail female; as if lands be given to a man, and his heirs male of his body begotten, this is an estate in tailmale-general; but if to a man and the heirs female of his body on his prefent wife begotten, this is an eftate in tailfemale-fpecial. In cafe of an entail male, the heirs female fhall never inherit, nor any derived from them; nor é con verfo, the heirs male, in cafe of a gift in tail-female: thus, if the donee in tail-male hath a daughter, who dies leaving a fon, fuch grandfon in this cafe cannot inherit the estatetail, for he cannot deduce his defcent wholly by heirs. male; and as the heir male muft convey his defcent wholly by males, fo must the heir female wholly by females. If, therefore, a man hath two eftates-tail, the one in tail-male, the other in tail-female, and he hath issue a daughter, which daughter hath iffue a fon, this grandfon cannot fucceed to either of the eftates; for he cannot convey his defcent wholly either in the male or female line. common laws. If tenant in tail after the ftatute de donis had made a leafe Power to for years and died, the leafe was not abfolutely determined leafe by the by his death, but the iffue-in-tail was at liberty either to Bac. Abr. tit affirm or avoid it, as he thought fit; and the reason why Leafes (D.) fuch leafes for years were not held to be abfolutely determined by the death of the tenant in-tail, who made them, was, either because they were drawn out of an estate of in |