cause of action arose in Wales, under the Welch Judicature Act; that the action was brought against the defendant as a commissioner of taxes, and that he was therefore entitled to recover treble costs; and that the defendant resided in the county of Middlesex, and was liable to be summoned in the court of conscience for Middlesex. Tidd's Pr. Forms, 345, 9th ed. The stat. 9 Geo. 4, c. 22, sec. 63, gives no directions that the speaker's certificate should appear by suggestion; but the Court would not interfere unless it was produced. The judgment by nil dicit is in the present instance contrary to the fact; because the defendants do say something in bar or preclusion of the action (a). If the facts appeared by suggestion on the record, the defendants would be enabled to assign errors, and the court of error would decide whether the facts of the case authorized the judgment. In Farr v. Denn (b), the death of one of two defendants in ejectment was suggested; and in Kemp v. Potter (c), where the plaintiff in an action against a bankrupt made his election to proceed under the commission, it was held, that the defendant was entitled to have a suggestion recording the election on the record. (a) The record was made up as follows:London, (to wit.) Robert Gill Ransom, Richard Crawley, and Henry Haken, the plaintiffs in this suit, by William Henry Ashurst, their attorney, complain of Robert Adam Dundas, Esquire, and Fitzroy Kelly, Esquire, the defendants in this suit, who have been summoned to answer the plaintiffs in an action of debt. For that whereas the defendants on the second day of Norember, in the year of our Lord one thousand, eight hundred, and thirty-five, were indebted to the plaintiffs under and by virtue of a certain act of parliament made and passed in the ninth year of the reign of his late majesty, King George the Fourth, to consolidate and amend the laws relating to the trial of contested elections, or return of members to serve in parliament, in the sum of four thousand, six hundred, and ninetyfour pounds, fifteen shillings, and seven pence, for costs and expenses incurred by the plaintiffs in prosecuting a certain petition of the plaintiffs, complaining of an undue election and return of the said defendants as burgesses to serve in parliament for the borough of Ipswich, and which said sum was to be paid by the defendants to the plaintiffs on request; whereby and by reason of the non-payment thereof, and by virtue of the said act, an action hath accrued to the plaintiffs, to demand and have of and from the defendants the said sum of four thousand, six hundred, and ninety-four pounds, fifteen shillings, and seven pence. Yet the defendants have not paid the said sum, or any part thereof, to the damage of the plaintiffs of ten pounds, and therefore they bring their suit, &c. And the said defendants, by the said William Henry Ashurst, attorney for the said plaintiffs, who appears for the said defendants according to the form of the statute in such case made and provided, come and defend the wrong and injury upon, &c. but say nothing in bar or preclusion of the said action of the said plaintiffs, whereby [Tindal, C. J.-The plaintiff's the said plaintiffs remain therein undefended (b) 1 Burr. 363. Com. Pleas RANSOM V. DUNDAS. would have no opportunity of answering the facts contained in the suggestion. They could not traverse the allegations.] TINDAL, C. J.-I can say most unfeignedly for myself and my brethren, that we should be most happy if the facts of this case could be put upon the record; but we do not see how we have any power which enables us to do so. By the 63d section of the statute, it is enacted that the certificate of the speaker, as to the amount of the debt, shall have the force and effect of a warrant to confess judgment, and that the Court shall, upon notice and on the production of such certificate, enter up judgment in favour of the plaintiff, for the sum specified therein to be due, in like manner as if the defendant had signed a warrant to confess judgment to that amount. We must therefore consider the certificate as subject to the same circumstances as a warrant to confess judgment. We are empowered to inquire into the validity of the instrument, and the circumstances under which the application to enforce it is made; but when that is done, there is an end of the inquiry. In ordinary cases, the facts are never suggested with a view to ulterior proceedings. If it were so, there would then be an analogy to support the present application. But to make the suggestion now proposed would be idle, and worse than inoperative, and would only tend to injure the rights of the parties. PARK, J.—This is a novel attempt; but I never yet heard of any precedent which would sanction the application. GASELEE, J.-I was absent when this cause was argued, but I do not feel authorized to assent to this application. VAUGRAN, J.-I should be very glad to give the defendants an opportunity to obtain a review of our decision, but it would be inoperative to enter the suggestion which is sought for. Rule refused. June 7. GAUNT, demandant, v. WAINMAN, tenant. Where landed WRIT of dower under nihil habet. The tenant pleaded that the demandant ought not to have her dower of the endowment of her husband, because described them he was not seised of such estate in the lands, whereof he could endow the de by deed which as being free hold, and a claim for dower was afterwards set up by the wife of the vendor. Held, that the purchaser was not estopped from shewing that the vendor was only possessed of a term of years in the lands. mandant. The At the trial before Lord Denman, C. J., at the last York assizes, it was in evidence that the demandant was the widow of one William Gaunt. lands in respect of which the dower was claimed were demised in 1607 for a term of 1000 years; and in 1796, one John Gaunt became entitled by assignment to the residue of the term. John Gaunt, by his will, devised the premises in fee to his son, the said William Gaunt; and in 1824, John Gaunt being dead, and William Gaunt, the husband of the demandant, having become bankrupt, his assignees sold and conveyed the premises to the tenant. The conveyance described the lands as being freehold. It was contended for the tenant, that he was entitled to shew that William Gaunt was not seised of an estate of freehold in the premises. For the demandant, it was submitted, that the tenant was estopped from denying the title which was set forth on the face of the conveyance made to him by the assignees. A verdict was found for the demandant, subject to leave reserved for the tenant to move to set it aside. Wightman obtained a rule nisi accordingly. Creswell and Hoggins shewed cause. In Com. Dig. Tit. Estoppel (A. 2.), it is said “a man may be estopped by matter of writing which is not of record, as if a condition in a bond recites that there are divers suits in B. R. The obligor is estopped to say, that there are no suits there," citing Willoughby v. Brook (a). The like rule is laid down in Shephard's Touch. 73. All the authorities are collected in Lainson v. Tremere (b). The tenant purchased the estate as freehold, and therefore he purchased it of the wife as well as of the husband. [Tindal, C. J.-Suppose the land was purchased as leasehold, would the demandant have been estopped from saying that it was freehold ?] It may be conceded she would not. Wightman, contrà.-The plea was proved at the trial, and it clearly appeared that the estate was not freehold. It would be a great hardship to prevent a party from saying that he has a less estate than he contracted to purchase. It would work as a double disadvantage. An estoppel must be mutual; it is admitted that in this case there is no mutuality, and that disposes of the question. TINDAL, C. J.-This is a case in which the tenant is not estopped from shewing the true nature of the estate, as against the demandant. The demandant is not estopped, and according to Co.Lit.352 a. every estoppel ought to be reciprocal, that is, to bind both parties; and this is the reason that regularly a stranger shall neither take advantage nor be bound by the estoppel." It would be a very great hardship if one party were bound and not the other. See how far it might be carried. If a party to the deed is bound, his heir would be also. Suppose an action be brought against the heir, in respect of lands from which he might have been evicted by title paramount. It would be very unjust to say he is estopped from shewing that the land was not the freehold of his ancestor. The rule must be made absolute. PARK, J., GASELEE, J., and VAUGHAN, J., concurred. (a) Cro. Eliz. 756. Rule absolute. (b) 1 Ado. & Ellis, 801. 3 Nev. & Man. 603. Com. Pleas. GAUNT v. WAINMAN. June 8. gagor cove nanted expressly to obtain a renewal of the lease of the premises mort gaged, and to mortgagee: DOE d. JARMAN v. LARDER. Where a mort- EJECTMENT to recover certain premises in the county of Somerset. At the trial, the lessor of the plaintiff put in evidence a mortgage-deed, which recited an indenture of lease for lives, from Bruton Hospital, and an assignment of it to the defendant; and it was witnessed that, in consideration of 1301., lent by the lessor of the plaintiff, the defendant assigned the premises, mentioned in the lease, as a security for the repayment of the money so advanced, subject to the usual proviso for the redemption of the premises. The deed contained a covenant from the defendant to renew the lease from time to time, and to assign it to the mortgagee; and that in case he neglected to do so, then that the mortgagee might renew the lease, provided that the fines, fees, and costs, to be paid by the mortgagee upon such renewal, should not be a charge upon the premises to any larger extent than 70%. The deed was impressed with a 21. stamp; but it was objected, on behalf of the defendant, that the stamp ought to be 257., because the cost, at which the mortgagor might procure a renewal of the lease, was uncertain (u). Halse v. Peters (b). The deed was received in evidence, and a verdict found for the lessor of the plaintiff. Bere, in pursuance of leave reserved at the trial, obtained a rule nisi to enter a nonsuit, upon the ground that the stamp was insufficient. Crowder shewed cause. The stamp of 271. is sufficient to cover any sum not exceeding 2007., and no greater sum than that is secured by this deed. It is immaterial that the mortgagor has covenanted to procure a renewal of the lease, for the cost which he may thereby incur forms no part of the money which is secured by the deed. Halse v. Peters (b) is distinguishable, because an uncertain sum, to be thereafter paid by the mortgagee, was secured. d. Scruton v. Snaith (c); Pruessing v. Ing (d); Deardon v. Binns (e). Doe Bere contrà. The clause of limitation in the mortgage-deed only applies to sums which may be expended by the mortgagee; but the mortgagor is bound to pay any sum which may be demanded for the renewal of the lease. A limit ought to have been inserted of the amount to be expended by the mortgagor. If default were made in obtaining a renewal, the mortgagor would be liable to (a) By 55 G. 3, c. 184, tit. Mortgage, the following duties are charged:-"Where the mortgage 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 and owing, or forborne to be paid, being payable Exceeding 1001. and not exceeding 2001,21. And where the same respectively 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 be sued in covenant, and the mortgagee would recover damages. In Halse v. Peters (e), it was held that a mortgage for 1,500l., with covenants for the payment of the yearly premium, and other costs and charges of an insurance of 1,0007. upon a particular life, required a 257. stamp; and the principle upon which that case was decided, is applicable to the present case. TINDAL, C, J.—This case does not present any difficulty to my mind. The question is, whether a 27. stamp is sufficient on a mortgage for 1307., with a power enabling the mortgagee to make a further advance of 70l. to obtain a renewal of the lease. It is clear that the stamp contemplated by the statute is payable upon a mortgage, or something in the nature of a pledge, and not upon a dry covenant under the seal of the party. Here, there being a covenant by the mortgagor to renew the lease, at all events, it is contended that the uncertain amount to be paid by him is a charge on the property, because the mortgagee may sue for damages if the covenant be not performed. But this liability does not come within the meaning of the clause which imposes a duty of 251. That applies to cases where the deed is "made as a security for the repayment of money to be thereafter lent, advanced, or paid;" that must be by the mortgagee; and the exception which follows, as to the payment of insurances by the mortgagee, shews that to be the meaning of the clause. This is a case where no money is to be advanced by the mortgagee beyond 2001. ; and he has simply an action on the covenant, if the mortgagor failed to renew, just as he would have for a breach of a covenant for quiet enjoyment. PARK, J.-I am of the same opinion. This is not a security for money, to be afterwards lent, advanced, or paid, within the meaning of the clause which has been referred to. The statute ought to be so construed, that it should not go one step further than the legislature intended. GASELEE, J., concurred. VAUGHAN, J.-The stamp is sufficient: the deed was expressly framed to secure the payment of a definite sum. Our decision is in accordance with Doe d. Scruton v. Snaith (f). Rule discharged. Com. Pleas. Doe d. JARMAN V. LARDER. (e) 2 B. & Adol. 807. (f) 8 Bing. 146; 1 M. & Scott, 230. THIS NAPIER v. DANIEL and another. was an action to recover damages for the publication of a libel by the defendants, in which it was imputed to the plaintiff that he had tampered with some witnesses who were going before a grand jury to prefer a criminal charge: also, that he had made a brutal attack upon a gentleman's gamekeeper, and had afterwards run away as fast as his legs could carry him, and that 51. was paid on his behalf to the gamekeeper, to stay proceedings in an action which had been brought for the assault. The defendants pleaded-first, Not Guilty; secondly, That the plaintiff did tamper with the witnesses; tairdly, That the plaintiff did assault the gamekeeper, and afterwards run away June 9th. A remark made by the jury during the summing up of the judge, will not affect a verdict which is afterwards for mally delivered although such and recorded; remark was in consistent with the verdict. |