1832. MACAKTHY บ. SMITH. particulars to the record, and nonsuited the Plaintiff, with leave to move the Court. Heath Serjt. accordingly now moved to set aside the nonsuit, contending, that the rule for annexing the bill of particulars did not dispense with the necessity for proving the delivery of them to the Defendant; and that, at all events, the objection on the part of the Defendant was taken too late. TINDAL C. J. The Court cannot interfere. The object of the late rule was to save the trouble of proving the bill of particulars. The Plaintiff here was out of Court upon his demand for goods scld, and then resorted to a claim for money had and received. The Defendant might fairly say, that if such a claim had been presented on the bill of particulars, he would not have gone to trial. Rule refused. Jan, 17. A mortgage of sale and leasing to secure the principal and all expenses, with interest; there was also DOE dem. SCRUTON v. SNAITH. EJECTMENT on a mortgage deed, by which, in consideration of 1700l. paid by the lessor of the Plaintiff to discharge a former mortgage, and of 1300l. actually advanced to the mortgagor, the mortgagor on the 6th of April 1828 conveyed the premises in question to the lessor of the Plaintiff in fee; provided always, that if the mortgagor should pay to the mort a covenant to pay principal and interest, and all expenses, with interest on the amount of them: Held, not a security for an uncertain and indefinite amount under 55 G. 3. c. 184. and that a 9. stamp was sufficient. gagee gagee 3000l. and all sums which the mortgagee should expend or disburse for or in respect of those presents, with interest after the rate of 4l. 10s. per cent., on the 6th of October then next, the conveyance should be void; but if, after notice, three months should elapse without such payment, the mortgagee should be at liberty to enter and receive rents, and should be invested with a power to make leases, and to sell, and pay the expenses and 3000l. and interest, and after payment hold in trust for the mortgagor. There was a covenant from the mortgagor to pay 3000l. and interest, and all costs with interest. The deed was stamped with a stamp of 91. Upon which it was objected at the trial before Parke J., that the deed was made as a security for the repayment of money uncertain and unlimited in amount, and that therefore the stamp ought to have been 251. under 55 G. 3. c. 184. sched. tit. Mortgage. A verdict having been taken for the Plaintiff, with leave for the Defendant to move to enter a nonsuit, Jones Serjt. obtained a rule nisi to that effect. Wilde Serjt. shewed cause. By the statute 97. is the amount of stamp on a mort gage "where the same shall be made as a security for the payment of any definite and certain sum of money advanced or lent at the time, or previously due or owing, or forborne to be paid, being payable, exceeding 4000l. and not exceeding 5000l. "And where the same shall be made as a security for the repayment of money, to be thereafter lent, advanced, or paid, or which may become due upon an account current, together with any sum already advanced or due, or without, as the case may be; other than and except any Ꮮ Ꮞ 1832. DOE dem. V. SNAITH. any sum or sums of money to be advanced for the insurance of any property comprised in such mortgage, or security against damage by fire, or to be advanced for the insurance of any life or lives, pursuant to any agreement in any deed, whereby any annuity shall be granted or secured for such life or lives, if the total amount of the money secured, or to be ultimately recoverable thereupon, shall be uncertain and without any limit, 251." The sum secured to the lessor of the Plaintiff is the definite and certain sum of 3000l. It is true that he is empowered to defray his expenses; but if the deed had omitted to give him that power, it would not have secured 3000l., but 3000l. minus the expenses. And it makes no difference that the lessor of the Plaintiff is to receive interest upon the amount of those expenses; for in Pruessing v. Ing (a) a stamp applicable to a note not exceeding 30l. was held applicable to a note for the payment of 30l. at three months after date, with interest from the date; and Lord Tenterden C. J. said, "The object of the legislature was to impose a pro ratâ stampduty upon the sum actually due at the time of taking the security, and not upon what might become due in future for the use of that money." So in Deardon v. Binns (b) it was held, that a bond conditioned for the payment of money and interest, and also for the performance of collateral acts, required only the ad valorem stamp, appropriated to the principal sum, where that stamp exceeded the 17. 15s., which the collateral matter would require if it stood alone. In Dickson v. Cass (c), indeed, where a bond was given for 2000.; the condition of which,-after reciting that A. (a) 4 B. & A. 204. (c) 1 B. & Adol. 343. and and B. had opened an account with D., E., F., and G., as bankers, and that the bankers had agreed to discount bills and pay in advance for A. and B. any sum of money not exceeding 1000l. in the whole,-was, that A., B., and C. should satisfy and pay the bankers all such sums as they should advance on account of the accepting or paying any bills, &c., together with such lawful charges and allowances for advancing and paying such bills as are usually charged by bankers in such cases, and interest, it was held, that that being a bond to secure not only 1000l., but a further sum for the bankers' charges for commission, &c., the stamp of 5l. required by the 55 G. 3. c. 184. sched. part i. tit. Bond, given to secure a sum exceeding 500l., but not exceeding 1000l., was not sufficient. But there the bond was to be a security, not only for the 1000l. to be actually advanced, but for such commission as bankers usually charge on such advances. The sum payable on commission was something to be gained beyond the sum of 10007.; and upon that ground Bayley J. rested his judgment that the stamp was insufficient. Here the reimbursement of costs would be no gain to the mortgagee, although the nonpayment of them would be a loss. If there had been no stipulation on the subject the mortgagee would be entitled to hold the estate till he was satisfied all his expenses as well as the money lent. Jones. Without an express stipulation he could never require or obtain interest upon the amount of his expenses; that interest, therefore, renders the sum secured uncertain and indefinite, and the higher stamp is necessary. But it may be considered, that the sum secured is rendered uncertain by the stipulation that the expenses are to be secured as well as the 3000l.; for sums advanced for insurance against fire of property contained 1832. DOE dem. V. SNAITH. 1832. DOE dem. V. SNAITH. contained in a mortgage, or for insurance of lives upon an annuity-deed, being expressly excepted, when added to the principal sum, it may be inferred the legislature meant to include every other charge which might be added to a mortgage. case. TINDAL C. J. On the proper construction of the act of parliament, I think a stamp of 91. was sufficient in this The question arises on a clause in the act under the term mortgage in the schedule. On looking at that clause, it is obvious that the main intention of the legis lature was to impose a stamp proportioned to the sum advanced or lent; and the only question is, whether it was intended to affect a security against a contingent loss to the lender. The words of the act are "Where the same shall be made as a security for payment of any definite and certain sum of money, advanced or lent at the time, or previously due or owing, or forborne to be paid, being payable, exceeding 4000l. and not exceeding 5000l., 91.; and where the same shall be made as a security for the repayment of money to be thereafter lent, advanced, or paid, or which may become due upon an account current, together with any sum already advanced or due, or without, as the case may be; other than and except any sum or sums of money to be advanced for the insurance of any property comprised in such mortgage, or security against damage by fire, or to be advanced for the insurance of any life or lives, pursuant to any agreement in any deed whereby any annuity shall be granted or secured for such life or lives, if the total amount of the money secured, or to be ultimately recoverable thereupon, shall be uncertain and without any limit, 251." These two latter clauses must be taken to pursue the intention of the legislature as expressed in the first, namely, to cover money actually advanced on security. Looking |