non-payment of rent was held to lie against an assignee of a lease, to whom an assignment had been made by way of mortgage security, though he had never entered or taken actual possession. But then the assignment must be absolutely accepted. Rule refused. 1827. LINDSAY v LIMBERT. WICK v. HODGSON. Friday, Jan. 26th. On a sale of fixgoing to an incoming tenant, the following memorandum tures by an out THIS was an action of assumpsit to recover the price of certain fixtures, goods, wares, and merchandize bargained and sold by an out-going to an in-coming tenant. At the trial before the Lord Chief Justice, at the Sittings at Guildhall after the last term, it appeared that the agreement for the sale of the fixtures in question was made with the defendant through the agency of a broker, who ed of Mr. H. 31., gave the defendant the following memorandum: a "Received of Mr. Hodgson the sum of 37. for letting house to him (being the house No. 58 King Street, Borough) for a term of seven years; Mr. Hodgson to take the fixtures at a valuation, if he be accepted as tenant; and, in the event of his not being accepted as tenant, then the 31. to be returned." On the part of the defendant, it was contended that this memorandum, being a contract relative to a tenancy, could not be received in evidence, without being stamped; and the case of Corder v. Drakeford (a) was cited, where, in assumpsit for the price of fixtures, the plaintiff, to prove his case, tendered in evidence an instrument, containing an agreement for the purchase of the fixtures, and also a present demise of the house; but, as it bore only an agreement stamp, it was rejected, and the plaintiff nonsuited; and afterwards, on a motion to set aside the nonsuit, Lord Chief (a) 3 Taunt. 382. was given by the broker employ ed by the former:-"Receiv for letting a house to him for a term of seven years; Mr. H. to take the fix tures at a valuation, if he be ac cepted as tenant; and, in the event of his not being accepted as tenant, then the 37. to be returned." In an action for the price of the fixtures: Held, that fix tures are not "goods, wares or merchandize" within the ex- Stamp-act, 55 and therefore, memorandum, 1827. WICK v. HODGSON. Justice Mansfield said:-"It was never intended that the defendant should buy the fixtures, if he could not have his lease of the premises: the one contract was auxiliary to the other:" and Mr. Justice Lawrence-"The contract for the goods, as well as for the house, is by an instrument which amounts to a lease, and which the law says must therefore have a lease stamp; and that, unless it has such a one, it cannot be given in evidence." Being, however, of opinion that the plaintiff had no interest in the house which could pass by the agreement, his Lordship over-ruled the objection. It was then contended, that, as an agreement for the purchase of fixtures, it required a stamp, fixtures not being within the exception in the stamp-act (a) relative to the sale of goods, wares or merchandize. Lee v. Risdon (b) was cited, where it was held that the price of fixtures cannot be recovered under a declaration for goods sold and delivered. His Lordship thereupon nonsuited the plaintiff, with liberty to move that the nonsuit might be set aside, and a new trial had, or a verdict entered for her, if the Court should be of opinion that the memorandum was receivable in evidence without a stamp. Mr. Serjeant Vaughan now moved for a rule nisi to that effect. The authority of Lee v. Risdon seems to be impugned by the case of Pitt v. Shew (c), where, in trespass, fixtures were held to be recoverable under the terms "goods, chattels and effects" in the declaration. In this latter case, Lord Chief Justice Abbott says:-"I am of opinion that the value of these fixtures may be recovered un (a) 55 Geo. 3, c. 184, Sched. Part 2, which exempts from the payment of duty any memorandum, letter, or agreement made for or relating to the sale of any "goods, wares, or merchandize." (b) 2 Marsh. 495; s. c. 7 Taunt. 188. (c) 4 Barn. & Ald. 206. der the terms mentioned in the declaration, 'goods, chattels and effects.' Fixtures may be taken in execution under a fieri facias, which contains similar words. They are not distrainable, not being severable from the freehold; and, for that reason, not being capable of being restored in the same plight in which they were before severance." The instrument in question was a mere memorandum made by the broker; it had no relation to any interest in the house; it was merely an agreement for the purchase of the fixtures by the defendant, in case the landlord should accept him as tenant: it therefore required no stamp. Then, being a mere agreement for the sale of goods, an agreement stamp was not necessary; for fixtures are clearly included within the terms "goods, wares, and merchandize;" they go to the executor, and may be taken in execution. The broker should have been allowed to give parol evidence to explain the document. Lord Chief Justice BEST.-The agreement in this case was made by the broker as the agent of both parties. It was reduced to writing, and, not being stamped, it could not be received in evidence; and, inasmuch as the nature of the transaction could not be ascertained without looking at the agreement, I was bound to nonsuit the plaintiff. Fixtures are not, in the ordinary legal acceptation of the word, "goods." I am of opinion that a stamp was requisite, and therefore that the nonsuit ought to stand. Mr. Justice PARK.-I am also of opinion that fixtures are not "goods" within the exception in the stamp act refered to; and, further, I think this was a contract relative to the sale of an interest in the house. In either case, therefore, it seems to me that the instrument was not receivable in evidence without a stamp. Mr. Justice GASELEE.-It did not appear that any no 1827. WICK v. HODGSON. 1827. WICK v. HODGSON. tice to quit had been given by or to the landlord, to determine the existing tenancy; the plaintiff, therefore, was entitled to hold for another year: and, if so, the contract was clearly to pass an interest in the house. Mr. Justice BURROUGH Concurred. (a) See the case of Strother and Another v. Barr and Another (2 Moore & P. 207; s. c. 5 Bing. 136), where the doctrine as to the admissibility or non-admissibility of unstamped documents relative to an interest in lands, where the Rule refused. (a) fact in issue is capable of proof without the production of the instrument, was very fully (though unsatisfactorily, there being a division on the Bench) considered by this Court, and where all the authorities will be found collected. Friday, Jan. 26th. The 6 Geo. 4, c. 16, s. 131 pro vides that no bankrupt, after the allowance of his certificate, shall be liable to pay any debt barred by such certificate, upon any promise made after the HUBERT v. MOREAU. A RULE had been obtained by Mr. Serjeant Taddy in the last term, calling on the plaintiff to shew cause why the bail-bond given by the defendant should not be delivered up to be cancelled, on the ground that the debt for which he had been arrested accrued before the issuing of a commission of bankrupt against him, under which he had obtained his certificate. The affidavit of the defendsuing out of such ant in support of the motion, stated, that the commission was issued against him on the 4th July, 1826; that he obtained his certificate on the 18th September following; that he was arrested at the suit of the plaintiff on the 20th of the same month; that the debt for which he was so arrested accrued before the date of the commission; and that he commission, un less such promise be in writing, signed by the bankrupt, or by some person authorized in writ ing by him: Held, that a promise in the handwriting of the bankrupt, but bearing no signature, was not sufficient to take a case out of the statute. believed that the plaintiff was aware of his having so obtained his certificate, at the time he so held him to bail. Mr. Serjeant Vaughan, on a subsequent day, shewed cause, upon an affidavit of the plaintiff, stating, that, short ly after the issuing of the commission against him, the defendant had promised to pay the debt. As, however, it did not appear whether or not this promise was in writing, the Court said they would not interfere on motion, but they directed an issue to try that fact upon the terms of the plaintiff's going to trial instanter, the rule to be stayed in the interim. The cause was tried before the Lord Chief Justice, at the Sittings at Guildhall after last term, when it appeared that the alleged promise was contained in a letter which was proved to be in the hand-writing of the defendant, but had neither date nor signature. It was thereupon objected, on the part of the defendant, that this letter was not a promise, contract, or agreement within the meaning of the statute 6 Geo. 4, c. 16, s. 131 (a). His Lordship directed a nonsuit. Mr. Serjeant Vaughan now moved for a rule nisi, that this nonsuit might be set aside, and a verdict entered for the plaintiff, or a new trial had. He contended, that, inasmuch as the promise was proved to be in the hand-writing of the defendant, the intention of the statute was sufficiently complied with, for that any mark made by the hand of the party is equivalent to a signature; and he referred to the case of Schneider v. Norris (b), where it was held that a bill of parcels in which the name of the vendor was printed, and that of the vendee written by the vendor, was (a) Which enacts "That no bankrupt, after his certificate shall have been allowed under any present or future commission, shall be liable to pay or satisfy any debt, claim or demand from which he shall have been discharged by virtue of such certificate, or any part of such debt, claim or demand, upon any contract, promise or 1827. HUBERT v. MOREAU. |