1834.

The KING against The Justices of

In Re BOWMAN.

and then, having succeeded on that plea, to treat the record as invalid, and one by which he is not subject to punishment. If the Court were to make the rule absoMIDDLESEX, lute, and the justices should return a perfect record of conviction, the prisoner might bring a writ of error and assign error in fact. [Patteson J. That would be to contradict the record, which he cannot do. Rex v. Carlsle. (a)] If they returned a record stating the fact truly, then the record would be bad in point of law.

Bodkin, contrà, was stopped by the Court.

DENMAN C.J. The prisoner has a right to have the record of the proceedings which passed at sessions correctly made up and to make any use of it that he can. The rule must be so altered as to require the justices to make up a record not of the conviction but of the proceedings had and taken against the prisoner Bowman.

LITTLEDALE, TAUNTON, and PATTESON JS. con

curred.

(a) 2 B. & Ad. 362.

Rule absolute to make up the record as above (b).

(b) The record was made up, and, on being produced at the Old Bailey sessions, April 1834, was held not to support the plea of autrefois convict. Rex v. Bowman, 6 Carr. & Payne, 357.

1834.

WRIGLEY against SMITH.

The son of

J. S. having

the

been arrested,

and one W.

the

becoming his

de

bail, J. S.

signed an

agreement to indemnify W. from all liability which he might

incur in conse

quence: Held,

the liabilities to

which J. S. thereby sub

jected himself

was to pay the

THIS HIS was an action of assumpsit. Plea, general issue. At the trial before Gurney B. at Lancashire Spring assizes 1833, it appeared that defendant's son, having been arrested for 357., the plaintiff, at the defendant's request, and upon his positing 401. in the hands of the sheriff, became bail for the defendant's son, and that the plaintiff having afterwards consented to allow the defendant to receive that as one of from the sheriff's officer the 40l. deposited, the defendant signed the following undertaking: "I the undersigned John Smith the elder, do hereby undertake to hold harmless and indemnified John Wrigley of and from all costs, charges, damages, or other expenses or liability which may be incurred by him, or arise, owing to and in consideration of the said John Wrigley having become bail for my son, the defendant in this action." The plaintiff having incurred costs in surrendering the defendant's son, the present action was brought. It was objected that the undertaking ought to have been stamped. The learned Judge directed a verdict to be taken for the plaintiff, but reserved liberty to move to enter a nonsuit.

Blackburne in Easter term having moved accordingly,

Alexander, in this term (January 28th), shewed cause. The agreement did not require to be stamped, by the

VOL. V.

4 D

55 G. 3.

debt for which the son of J. S. arrested, and have amounted subject-matter

had been

as that must

to 201., the

of the agree

ment must have

been of that

value, and

the agreement therefore re

quired a stamp

within the

55 G. 3. c. 184. sched. part 1.

1834.

WRIGLEY

aginst

SMITH.

55 G. 3. c. 184. sched. part 1. (a), because the subject matter of it does not appear to be of the value of 201 In Chadwick v. Sills (b), a memorandum by a wharfinger of the receipt of goods to be shipped in a particular manner was held, first by Holroyd J. at Nisi Prius, and afterwards by this Court on motion for a new trial, to be admissible in evidence to shew the terms on which the goods were received, without a stamp, although the value of the goods was above 204., the wharfage being of a less amount. In Latham v. Rutley (c), a memorandum "Received of Latham and Co., a paper parcel directed to Messrs. Hoare and Co., 62. Lombard Street, value 2601. which we agree to deliver to them to morrow, fire and robbery excepted, carriage paid here," given by a carrier in receipt of goods at Dover, was held to be admissible in evidence without a stamp, as being an agreement the subject matter of which did not exceed 201. In Doe v. Avis (d), it was holden that an agreement, signed by a tenant, to hold premises with scheduled fixtures at 2s. 6d. per annum, determinable at six months notice, need not be stamped; the subject matter of the contract, viz. the right to occupy, not being shewn to be above the value of 201.: Lord Tenterden there said, "The words of the act are so ambiguous that the party objecting ought to make out the affirmative, which is not shewn." And in Orford v. Cole (e), Bayley J. ruled that a letter produced to prove a promise of marriage need not be stamped, and on the case being afterwards discussed on motion for a new trial,

(a)" Agreement, where the matter thereof shall be of the value of 201. or upwards."

(d) M. S. 2 Chitty's Statules, 964. n. (x) (e) 2 Starkie, N. P. C. 351.

he

he observed that the enactment imposing the duty did not operate at all unless the subject matter of the agreement was of the value of 201.; and that this supposed that the value of the contract was measurable in order to ascertain whether the subject matter did or did not amount to 201. In Rex v. Enderby (a), on appeal against an order of removal, the appellants, to shew that the pauper served more than forty days as an apprentice in the respondent parish, with the assent of his master, produced a written paper purporting to certify that the father of the pauper agreed to give his master 8s. for the term of his apprenticeship; and it was held that there being nothing to shew that the subject matter of the agreement was of the value of 20l., it did not require a stamp. So here, there was nothing to shew that the subject-matter of the agreement was 207. [Taunton J. The party was arrested for 351., and he could not have been legally arrested for less than 20%.] The subject-matter of the agreement was not the sum for which the defendant's son had been arrested, but the liability of his bail to pay costs. [Patteson J. Your argument goes to shew that a contract of indemnity would never require a stamp. The agreement by the defendant is to hold the plaintiff harmless and indemnified from all costs, charges, damages or other expenses or liability which he may incur in consequence of his having become bail. Now one of those liabilities was, that he might have to pay the debt for which the defendant's son had been arrested.]

Blackburne contrà, was stopped by the Court.

(a) 2 B. & Ad. 205.

1834.

WRIGLEY

against

SMITH.

DENMAN

1834.

WRIGLEY

against SMITH.

DENMAN C. J. A liability which the defendant might have incurred by the terms of his undertaking to indemnify the plaintiff, was that he might be called upon to pay the debt for which the defendant's son had been arrested. Now, although the costs, charges, and damages were uncertain, the debt for which this party had been arrested, must certainly have amounted to 201. The agreement, therefore, required a stamp. The rule for entering a nonsuit must be made absolute.

LITTLEDALE, TAUNTON, and PATTESON Js., con

curred.

END OF HILARY TERM.

Rule absolute.