Looking at the deed in question, the object of the parties appears to have been to secure two sums, one of 1700l., the other of 1300l.; and the question is, whether a proviso and subsequent covenant to indemnify the lender against expenses which he may possibly incur to recover the money lent, can be so blended with that money as to impose the necessity of a stamp of higher amount: and we are of opinion that such a stamp is not necessary; for this deed contains no power which the mortgagee might not enforce under an ordinary mortgage. By a condition subsequent the mortgagee is authorised to recover expenses which, without such condition, he would be allowed in the Master's office. We cannot put upon this condition subsequent the construction of an unlimited advance requiring a 251. stamp, unless we put the same construction on an ordinary mortgage deed. It has been contended that the exemption in the statute, of the expense of insurance, implies an intention on the part of the legislature that all other expenses should be included in the amount for which the stamp is to be paid; but insurance is a different and collateral security, and the expense incurred in effecting it could not be claimed under the ordinary form of mortgage. The case of Dickson v. Cass is clearly distinguishable from the present. There, a bond was given for 2000l., the condition of which, after reciting that A. 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 10007. 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; and the Court held, that that being a bond to secure, not only 1832. DOE dem. ข. SNAITH. 1832. DOE dem. ข. SNAITH. 1000l., but a further sum for the bankers' charges for commission, &c., the stamp of 51. 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. The charge for commission was necessary, in the first instance, to render the instrument available, and without it the borrower could not obtain the sum he required. The expenses provided for in the present deed have no relation to the borrowing of the money, but may subsequently become necessary to make the security complete to the lender. Those charges for commission on the advances the bankers would not have been entitled to unless by express stipulation; the charges here, the mortgagee might have recovered whether he had stipulated for them or not. Therefore, as all stamp acts, being a burden on the subject, must be clearly expressed wherever they impose the burden, I should say, that even if there were doubt, we should take the smaller sum; but that in this case, as it is plain that no more than 3000l. was advanced to the mortgagee, the stamp which has been affixed to the deed must be deemed sufficient. PARK J. I am of the same opinion. We must look to the precise words of these revenue acts, because, in some degree, they operate as penalties. Now, in this case, the sum named in the deed was not a security for the payment of any "sum of money thereafter to be lent," or "uncertain in amount." The true way to consider the question is, whether these expenses would not necessarily follow the power of lease and sale. In a court of equity, they would be considered incidental to the mortgage; and after the mortgagee shall have been reimbursed all expenses he may incur, the principal sum secured to him here is no more than 3000l. As to the argument argument drawn from the exception in favour of insurances against fire, the answer has been given by the Chief Justice; and in Dixon v. Cass the borrower could not raise the money he proposed to obtain without adding the previous charge of the banker's commission. BOSANQUET J. I am of opinion that the stamp upon this deed was sufficient. The question turns on the construction of a statute imposing a duty, and we must take care that no higher duty is imposed than the legislature intended. It appears to me that the deed in question is a security for a definite, and not for an uncertain sum. Pruessing v. Ing is a decisive authority to shew that the reservation of interest is not to be considered an addition to the sum advanced. The question therefore remains, whether a stipulation for reimbursing the mortgagee his expenses is to be considered as making an addition to the sum advanced or secured, or as rendering it of uncertain amount. Now, in Dixon v. Cass, which has been referred to in support of the argument for a higher stamp, the expenses secured were expenses attending the advance of the money, and not expenses attending its recovery. Here the expenses are the expenses of recovery, and it was not necessary that they should have been mentioned at all. Expenses which are incurred only for the purpose of recovering the principal money lent will not take the deed out of the operation of that clause of the act which applies to securities for a sum certain, because, when they are all defrayed, the mortgagee will have no more in pocket than the sum he originally advanced. ALDERSON J. I think the stamp was sufficient. The case is governed by the decision in Pruessing v. Ing, where the reservation of interest upon the face of a promissory note was held to make no difference in the amount 1832. DOE dem. V. SNAITH. 1832. DOE dem. V. SNAITH. amount of the stamp, Abbott C. J. saying, "the object of the legislature was to impose a pro ratá stamp duty upon the sum actually duc at the time of taking the security, and not upon what might become due in future for the use of the money." The mortgagee here would have been in no worse situation if the deed had contained no stipulation for the expenses; and expressio illorum quæ tacitè insunt nihil operatur. In Dixon v. Cass the Defendant would not have been responsible for the banker's commission and other charges without an express stipulation to secure them. That case, therefore, does not apply to the present, and the rule for a nonsuit must be Discharged. Jan. 17. to move to bring up an insolvent under the compulsory clause of the Lords' Act on the seventh day of term. ACRAMAN V. HARRISON. It is too late MEREWETHER Serjt. moved on the part of the Plaintiff, a creditor, to bring up the Defendant, a prisoner, under the compulsory clause in the Lords' act, 32 G. 2. c. 28. s. 16., by which creditors are authorized and empowered to require prisoners, on giving twenty days' notice in writing, to give in to the court of law, from which the writ or process issued, on which any such prisoners are charged in execution, or into the Court in the prison of which such prisoners have been or shall be removed by habeas corpus, or shall remain or be charged in execution, within the first seven days of the term which shall next ensue the expiration of the said twenty days, a true account in writing of the estate of such prisoners. But this being the seventh day of the term, and it being impossible to bring up the Defendant in the course of the day, the Court held the application too late, and Merewether 1832. ACRAMAN v. THIS PALMER V. MARSHALL. Jan. 21. was an action on a policy of insurance on a In an action yacht at and from Bristol to London, and the Plain- on a policy or insurance, the tiff had laid the venue in Dorsetshire, where the cause Court refused was tried at the last assizes, when a verdict was found upon a new for the Plaintiff, upon which the Defendant afterwards trial to change obtained a rule absolute for a new trial. (See ante, Dorset to p. 79.) the venue from London, upon the ground that both the The Plaintiff's witnesses at the first trial were all from London, where both the parties resided; and, upon parties lived affidavit of these facts, Wilde Serjt., on the part of the Defendant, obtained a rule nisi to change the venue to London, for the purpose of saving expense, and obtaining a jury more con⚫versant in matters of insurance. Merewether Serjt., who opposed the rule, urged that no sufficient reason had been assigned for changing the venue. The change would now, when the assizes were so near at hand, operate as a delay to the Plaintiff, who had the privilege of laying the venue where he pleased; and The Court, assenting to this, although they admitted, that in some cases circumstances might be sufficiently strong to induce them to change the venue, the Rule was discharged. in London, and that all the witnesses came from London on the first trial. |