1827. ATTWOOD v. SMALL. The contain more than 1080 words, and the 17. agreement stamp imposed upon it, would be insufficient. learned Judge overruled this objection, and left the following questions to the jury. 1st. 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 shareholder, 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. 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. 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 (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. 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 600,0007., and 25,000l. 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 200,0007. paid; and it was agreed, that both the payment and the delivery of the possession should be postponed. A very peculiar proviso (b) 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 taken at the trial, and overruled by the Judge, without reserving the point, and the Court are afterwards of opinion, that the objection was a good ground of nonsuit, they will grant a new trial only, and will not permit a nonsuit to be entered; Minchin v. Clement, 1 B. & A. 252. In that case Lord Ellenborough says, "It is in the plaintiff's option to be nonsuited or not, and if at the trial he had refused to be nonsuited, and the Judge had then directed the jury to find a verdict against him, it was competent to the plaintiff to have tendered a bill of exceptions, of which advantage he would be deprived if the Court were now to direct a -nonsuit to be entered." Hence it would seem to follow, that if the plaintiff is dissatisfied with the leave reseryed, he may insist upon his case going absolutely to the jury. In Hill v. Thompson, 8 Taunton, 375, 2 J. B. Moore, 424, a nonsuit was directed to be entered, although no specific leave had been reserved to move to enter a nonsuit; but there the Court held, that the point as to a nonsuit was involved in the reservation of the general consideration of law (2 J. B. Moore, 459); and the objection was not taken till after the Court had made the rule for entering a nonsuit absolute. And see Gould v. Robson, 8 East, 580; Clarke v. Swift, 2 J. & Y. In Gates v. Ryan, 2 Chitt. Rep. 271, it is reported to have been said, that if the Judge refuses leave at the trial, because he thinks it will be unnecessary, he will put the party in the same situation as if leave had been given at the trial. This would, however, as effectually oust the plaintiff of his right to discuss the propriety of the Judge's opinion, as if the Court should direct a nonsuit to be entered where no leave had been reserved. Where, however, a verdict has been found for the defendant, there is no objection in point of law, to the setting aside that verdict, and ordering a nonsuit to be entered for the benefit of the plaintiff, in order that he may not be precluded by the verdict from discussing the question in a second action; Lee v. Shore, 2 D. & R. 198, 1 B. & C. 94, S. C. (b) Ante, 251, 252. 1827. ATTWOOD V. SMALL. 1827. ATTWOOD บ. SMALL. 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 17. 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 (b). 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 (a) 55 Geo. 3, c. 184, Schedule upwards, whether the same shall dorsed thereon, or annexed thereto. When the same shall not contain more than 1080 words (being the amount of fifteen common law folios, or sheets of 72 words each). £1 0 0 And when the same shall contain more than 1080 words £ 1 15 0 (b) As to the application of this maxim, see Co. Litt. 9 b, 10 a; 1 Tho.Co. Litt. 500; 3 Bac. Abr. 534. 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 proportion 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 (b) according to the terms of a precedent, in the forms published by Mr. A., vol. 3. [Bayley, 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. (b) Qu. whether an agreement for a partnership is necessarily "an agreement where the matter thereof is of the value of 20l. or upwards." See the judgment of Bayley, J., in Orford v. Cole, 2 Stark. N. P.C. 351-3; where his Lordship said, that "the argument on the part of the defendant, had proceeded on the supposition that the case, where the subject mat- 1827. ATTWOOD บ. 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 600,000l.; 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 v. Lady Anson, ante, 113. |