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1827.

ATTWOOD

v. SMALL.

contain more than 1080 words, and the Il. agreement
stamp imposed upon it, would be insufficient. The
learned Judge overruled this objection, and left the
following questions to the jury. Ist. Whether there
was a company called the British Iron Company, and
when? 2d. Whether the defendants were shareholders,
and when ? 3d. Whether the plaintiff was a share-
holder, and when? 4th. Whether the contracts were
made with the defendants, as trustees for the British
Iron Company? 5th. Whether the plaintiff was aware,
at the time of the contract, that the defendants were
acting as trustees for the British Iron Company.

The jury found that there was a company called the
British Iron Company in September, 1825, and not
earlier; that the defendants were not shareholders;
that the plaintiff was a shareholder in September, 1825;
that the plaintiff sold to the defendants themselves, on
their own account and liability, and not on behalf of the
company, and that they bought on their own account.
The fifth question was disposed of by the answer to the
fourth.

Verdict for the plaintiff, damages 16,2501.

rafia

Campbell now moved for a rule to shew cause why a nonsuit should not be entered, or a new trial granted, upon the want of a sufficient stamp, and that the verdict was contrary to the evidence. [Lord Tenterden, C. J. Was the point reserved as to the stamp ?] It was not. Per loronto But in Montague v. Benedict (a), where the question was, whether goods furnished to the wife were necessaries, the Court directed a nonsuit to be entered, although it does not appear that the point was saved at the trial. [Lord

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(a) 3 B. & C. 631; same case, by the name of Montague v. Baron, 5 D. & R. 532, the defendant's name in both reports being only imaginary. In the

report of the argument in Banc, the circumstance of leave being given at the trial to move for a nonsuit is not adverted to; but the point was in fact saved.

1827.

ATTWOOD

V. SMALL.

Tenterden, C. J. You must confine your application to a new trial (a).] By the first agreement of the 10th June, 1825, the plaintiff agreed to sell iron mines for 600,0001., and 25,0001. was paid by way of deposit. Upon an objection to the title, the second agreement of the 1st October was made, but possession was not delivered on the 1st October, nor the 200,0001. paid ; and it was agreed, that both the payment and the delivery of the possession should be postponed. A very peculiar proviso (6) was introduced into this contract, for a reference to certain barristers. On the 4th November, the property was conveyed to trustees for

(a) Where a legal objection is as to a nonsuit was involved in the taken at the trial, and overruled reservation of the general consideby the Judge, without reserving ration of law (2 J.B. Moore, 459); the point, and the Court are and the objection was not taken till afterwards of opinion, that the after the Court had made the rule objection was a good ground of for entering a nonsuit absolute. nousuit, they will grant a new And see Gould v. Robson, 8 East, trial only, and will not permit a 580 ; Clarke v. Swift, 2 J. & Y. nonsuit to be entered; Minchin In Gates v. Ryan, 2 Chitt. Rep. v. Clement, 1 B. & A. 252. In 271, it is reported to have been that case Lord Ellenborough says, said, that if the Judge refuses leave “ It is in the plaintiff's option at the trial, because he thinks it to be nonsuited or not, and if at will be unnecessary, he will put the trial he had refused to be non- the party in the same situation suited, and the Judge had then as if leave had been given at the directed the jury to find a verdict trial. This would, however, as against him, it was competent effectually oust the plaintiff of to the plaintiff to have tendered his right to discuss the propriety a bill of exceptions, of which of the Judge's opinion, as if the advantage he would be deprived Court should direct a nonsuit to if the Court were now to direct a be entered where no leave had - nonsuit to be entered.” Hence been reseryed. Where, however, a it would seem to follow, that if verdict has been found for the the plaintiff is dissatisfied with defendant, there is no objection in the leave reseryed, he may insist point of law, to the setting aside upon his case going absolutely that verdict, and ordering a nonto the jury. In Hill v. Thomp- suit to be entered for the benefit of son, 8 Taunton, 375, 2 J. B. the plaintiff, in order that he may Moore, 424, a nonsuit was di- not be precluded by the verdict rected to be entered, although no from discussing the question in specific leave had been reserved a second action; Lee v. Shore, to move to enter a nonsuit; but 2 D. & R. 198, 1 B. & C. 94, S.C. there the Court held, that the point (6) Ante, 251, 252.

the security of the plaintiff, and the third agreement was entered into. That agreement, it was contended on the part of the defendants, required a stamp of 11. 10s. The necessity of a stamp of that amount (a), depends upon the question, whether the clause referred to, is considered as forming part of the last agreement. The words of reference are, “that the provision for a reference to arbitration, contained in the said agreement, bearing date the 1st day of October, 1825, and the said agreement therein also contained for carrying the said provision into effect, and for obeying every award and determination, when made in pursuance thereof, shall extend to this present agreement, and to every clause therein contained, in the same manner as if such or the like provision for reference to arbitration, and such or the like agreements for carrying the same into effect, and for obeying and observing the award or determination, awards or determinations, to be made in pursuance thereof, had been repeated.” The words of the statute are, "indorsed thereon, or annexed thereto.” It is a wellknown rule of law, that verba relata, inesse videntur (6). The clause of submission must be therefore considered to be inserted in the last agreement. [Lord Tenterden, C. J. There was a stamp on the agreement of the 1st October]. That stamp was functus officio. The agreement of the 4th November, provided for the submission to arbitration of matters totally different from those contained in the

1827.

ATTWOOD

v. SMALL.

(a) 55 Geo. 3, c. 184, Schedule dorsed thereon, or annexed thereto. part I.“ Agreement, or any minute, When the same shall not conor memorandum of an agreement tain more than 1080 words (being made in England under hand the amount of fifteen common law only, where the matter thereof folios, or sheets of 72 words shall be of the value of. 201. or each).

£ 1 0 0 upwards, whether the same shall And when the same shall conbe only evidence of a contract, tain more than 1080 words or obligatory upon the parties,

£ 1 15 0 from its being a written instru- (6) As to the application of this ment, together with every schedule, maxim, see Co. Litt. 9 b, 10 a; 1 receipt, or other mutter, put or in- Tho.Co.Litt.500; 3 Bac. Abr.534.

1827.

ATTWOOD

SMALL.

former agreements. In Lake v. Ashwell (a), it was held,
that a schedule of goods referred to in a deed to which
it was annexed, must have the proper deed stamp, as
part of the deed. There the schedule was annexed; but
whether it was annexed or not, it ought to be counted.
In that case, Lord Ellenborough says, “if this were not
so, the revenue would be liable to great evasion; for
then, an instrument requiring a certain stamp in propor-
tion to the number of words, would only contain a few
words of reference to a schedule, by which every thing
would be conveyed in fraud of the revenue.' Here the
plaintiff might assign a breach of the last agreement, in
the non-performance of any of the stipulations expressed
in the clause of reference set out in the second agreement.
So, upon the expiration of a long lease, the parties might
enter into an agreement in writing to continue the tenancy
upon the terms of that lease; or two persons might enter
into partnership (6) according to the terms of a pre-
cedent, in the forms published by Mr. A., vol. 3. [Bay-
ley, J. There are persons interested in preventing that.
Lord Tenterden, C. J. Whether any mode may be found
of evading the law, I cannot say. We must take the law
as it is]. The mines were sold to the defendants as
agents for the British Iron Company, in which, the
plaintiff was a shareholder. [Lord Tenterden, C. J.
Does it appear on the face of the agreements that the
defendants contracted as agents]? It does not. But that
was shewn as matter of fact, though the jury found that
(a) 3 East, 326.

the case, where the subject mat-
(6) Qu: whether an agreement ter of the contract is not of the
for a partnership is necessarily value of 201., was an erception to
“ an agreement where the matter the general clause ; that it was not
thereof is of the value of 201. or an exception, but a substantive
upwards.” See the judgment of part of the enactment, which was
Bayley, J., in Orford v. Cole, not to operate at all unless the
2 Stark. N.P.C. 351–3; where his matter of the agreement should be
Lordship said, that“ the argument of the value of 201. or upwards ;
on the part of the defendant, had that this supposed that the value of
proceeded on the supposition that the contract was measurable.

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1827.

ATTWOOD

V. SMALL.

the plaintiff sold to the defendants on their own liability. As it appears from the plaintiff's own letters, that he had purchased shares in the concern, he was interested in the profits and loss. [Lord Tenterden, C. J. There was no evidence that the defendants were partners. Bayley, J. The jury found that the plaintiff was a shareholder). If he contracted with them as agents for the Company, the action will not lie.

Cur. adv. vult.

Lord TENTERDEN, C. J.--We have considered this case, and are of opinion, that there ought not to be a new trial. In the contracts, there is nothing to shew that the defendants were not dealing for themselves. The last agreement contains this special clause,“ save and except that they shall remain liable for the payment of interest.” This plainly shews that they contracted in their own right. The plaintiff gave up the personal responsibility of the defendants for the 600,0001.; but so late as Novembar, the defendants considered themselves personally liable. I can by no means infer from the letters, that the defendants contracted for the British Iron Company. I should infer that they contracted with reference to a company

intended to be formed. The plaintiff afterwards became a shareholder. It does not appear when he became so, or what right he acquired. He could not acquire an interest in land by merely becoming a shareholder (a). His interest accrued subsequently to the original contract, and collaterally to the last contract.

BAYLEY, J.-The plaintiff was the proprietor of the estate which the defendants contracted to buy. There is nothing to shew that the defendants did not contract on their own account. It is objected, that the plaintiff is a proprietor of 200 shares. The defendants, out of an estate

(a) See Vice y. Lady Anson, ante, 113.

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