1840. ATTWOOD v. TAYLOR. between the plaintiff and the defendants, the plaintiff agreed to sell, and the defendants to purchase, certain freehold and leasehold estates, iron works, collieries, and other property, at the price of 600,000l.; and it was thereby agreed that the sum of 25,000l. in Exchequer bills, should, on the signing of the agreement, be In special assumpsit upon a contract of sale, the defendant pleaded payment of money into court and non damnificatus ultrà. Quære, whether the defendant can give the contract in evidence for the purpose of shewing a partial defeasance in another part of the contract, not set out in the declaration, and prove that the circumstances, by which the contract was to be so partially defeated, have arisen. (a) By a contract of sale, the purchaser is to pay a certain sum by six instalments, and also 5 per cent. half yearly, from the day appointed for the payment of the second instalment, upon the four remaining instalments, until paid; such additional sums by way of percentage) to be secured by the bond (b) of the purchaser. In the contract, and also in the declaration thereon, this additional percentage is called "interest" upon the instalments. Neither the instalments nor the additional percentage are paid as they become due, nor is any bond given: Held, that the purchaser is chargeable with interest upon the last four instalments until actual payment of those instalments, but that the jury are not bound, either at common law or under 3 & 4 W. 4. c. 42. s. 28., to give interest upon the additional percentage treated by the parties as "interest." Ruled at nisi prius, that a plaintiff cannot, for the purpose of excusing his apparent laches in deferring his action for several years, give in evidence an order for an injunction obtained by the defendant in a suit în equity instituted by the defendant against the plaintiff, by which order the plaintiff was restrained from suing during the whole of that period, without producing the bill and answer. Per Lord Abinger C. B. (c) Tamen quære. (a) And see Fillieul v. Armstrong, 7 Ad. & Ell. 557., 2 Nev. & P. 406. (b) Where goods are sold, to be paid for by bill, the purchaser, not giving the bill, is liable for the interest which the bill, if given, would have carried: Porter v. Palsgrave, 2 Campb. 472. And being, in effect, part of the consideration for the sale, this interest may be recovered in an action of debt or of indebitatus assumpsit for the price of the goods, brought after the time when such bill would have become due: Marshall v. Povle, 13 East, 98. In the latter case, Lord Ellenborough says, "Here, the agreement is, to give a security which would carry interest; and, as the performance of the contract would have entitled the plaintiffs to interest upon the bill, they ought not to be prejudiced by the breach of it." So, in Becher v. Jones, in error, 2 Campb. 428. n., the Court of Exchequer Chamber allowed interest, after judgment by default, in an action for not accepting a bill for the price of goods sold at 7097. 16s. 6d., to be paid for at the expiration of four months from the sale and delivery, by paid by the defendants into the hands of certain bankers, to the joint account of the defendants and the plaintiff, by way of deposit, which Exchequer bills were to be paid over to the plaintiff on his giving possession of the premises sold; and the defendants agreed to pay to the plaintiff the further sum of 200,000l. on the 1st of October then next; and the plaintiff agreed, on payment of such sum of 200,000l., and on the title's being accepted, to give full and complete possession of the premises unto the defendants, and, at the same time, if required, to convey, assign, and assure to trustees, in trust to secure the residue of the purchase money and interest (d) by the instalments thereinafter mentioned, giving a bill of exchange to the seller, payable two months after date. The rule moved for in that case, and afterwards made absolute, was, that it should be referred to the clerk of the errors to calculate the amount of interest upon the final judgment, from the time of the service of the allowance of the writ of error until the affirmance of the judgment. And see Edwards v. Vere, 5 B. & Ad. 282., 2 Nev. & M. 120. 124, 125. Here, the defendants had engaged to give a bond for the half-yearly sums accruing due for interest; and if they had done so, the plaintiff might have sued for the halfyearly sums, as the principal secured by the bond, with interest thereon, corresponding in amount with the interest sought to be recovered in this action. This would be a title to the interest ex contractu, and independent of the statute 3 & 4 W. 4. c. 42. s. 28. (extended to Ireland by 3 & 4 Vict. c. 105. 8. 54.) Under this contract, it lay upon the de- (c) Dissenting from Blower 1840. ATTWOOD บ. TAYLOR. 1840. ATTWOOD 0. TAYLOR. and subject thereto in trust for the purchasers, or as they should direct and appoint; and the plaintiff agreed, within one month, to deliver to the defendants, stranger), it is wholly inoperative between the joint-tenants; but if the feoffment be by deed, though it cannot operate as a feoffment, inasmuch as the feoffee has already that very seisin which it is the object of the feoffment and livery to give him, yet as it testifies the intention of the parties that the feoffee shall have sole seisin of the land, the deed will operate as a release, and must be so pleaded. So as to all other forms of conveyance, Barker v. Lade, 4 Mod. 149., 2 Ventr. 145., 3 Lev. 291., Skinner, 315. S. C. Howell v. Richards, 11 East, 683.; Moore v. Earl of Plymouth, 3 B. & Ald. 66.; Wilson V. Bagshaw, 5 Mann. & R. 448. 1 Wms. Saund. 235 b. (9.); 2 Wms. Saund. 97b. (2.); Com. Dig. Pleader (C. 37.); Bac. Abr. Pleas and Pleading (1.7.); Steph. Plead., 4th ed. 339, 417. The rule is less strict where a conveyance is alleged merely as matter of inducement, or introduction, to that which forms the substance of the allegation, Bultivant v. Holman, Cro. Jac. 537.; better reported in 2 Roll. Rep. 110. by the name of Buttifant v. Holeman. The rule does not apply to actions for defamation, written or verbal, because there, the publication of the particular words is, itself, the act done. Under the statute of uses, inartificial words in a deed, if they express the intent of the parties, will raise a use, which the statute will execute; Edward Fox's case, 8 Co. Rep. 93 b. If, on the 1st of January 1840, A. sell a horse to B. for 100l., payable, with 5 per cent. interest, on 1st of January 1841, the transaction amounts to a sale of a horse for 105.. payable at a future day, and nothing else; and if the 100%. should be paid without the 51., the vendor must declare for the price, or a portion of the price, of a horse sold and delivered, and not for interest. Here, in declaring upon the contracts according to their legal effect, the mode of payment would perhaps be stated thus:25,000 deposit; 200,000/ on 1st October 1825; 81251 (which would be the sum treated as half a year's interest upon 325,000l.), on the 1st of April 1826; 50,000l. on the 15th of April 1826; 68751. (which would be the sum treated as half a year's interest on the then residue of 275,000%.) on the 1st of October 1826; 100,000l. on the 15th of October 1826; 43751. (which would be the sum treated as half a year's interest on the then residue of 175,000%) on the 1st of April 1827; 100,0001. on the 15th of April 1827; 18751. (which would be the sum treated as half a year's interest on the then residue of 75,000l.) on the 1st of October 1827; and 75,000l. on the 15th of October 1827. These ten sums, amounting to 575,2501., or their solicitors, an abstract of title to the property sold, and to deduce a good title thereto, with certain exceptions. And the defendants agreed to pay to the plaintiff the residue of the purchase-money by the following instalments, viz. 100,000l. on or before 15th April 1826; 100,000l. on or before 15th October 1826; 100,000l. on or before 15th April 1827; and 75,000l. on or before 15th October 1827; with interest for the same sums, at the rate of 5 per cent. per annum, to be reckoned from 1st October then next until the day of payment thereof, such interest to be paid by equal halfyearly payments, and to be secured by the joint and several bond of the defendants; and it was also thereby further agreed, that the plaintiff should pay all taxes, &c. in respect of the property contracted to be sold up to the time of giving possession, from which period the defendants should be entitled to the rents and profits. 1840. ATTWOOD V. TAYLOR. 1st of October 1825. By a certain other memorandum Second conof agreement between the plaintiff and the defendants, tract. after reciting, in part, the first agreement, and also reciting that the said sum of 25,000l. in exchequer bills had been accordingly paid, and that it had been agreed, in consequence of the then present state of the title, that may be said to be the only sums which constituted the purchase money of the estate, after the abatement of the 50,000l. made by the third contract. The contracts do not appear to have contemplated any payment by the name, either of principal or interest, after the 15th of October 1827, and, although the words reserving interest, are sufficiently large to meet the possible case of the payments' being deferred until after that period, it cannot be said, strictly, that the payments which would become due for interest, in the event of the non-perform- 1840. ATTWOOD บ. TAYLOR. the first agreement should be varied and otherwise added to, it was witnessed, that upon the delivery of the said exchequer bills, and payment of the said 200,000l. to the plaintiff, in addition to any other payments required to be made by the first agreement on delivery of possession, the defendants should be let into the immediate possession of so much of the premises sold, as were then in the actual occupation of the plaintiff, and into the receipt of the rents and profits of the residue. thereof, without such possession being an acceptance of the title, or an abandonment, on the part of the defendants, of their right to have all valid objections to the title removed, and all defective evidence supplied, by, or at the expense of, the plaintiff. And the plaintiff did thereby further agree, that he, or his heirs, executors, or administrators, would forthwith proceed, and, within a reasonable time after the date thereof, remove all valid objections to the title, and complete any evidence which might be defective therein, and make the title as perfect as it should be within the power of the plaintiff, his heirs, &c., to do; and should on or before the 15th of April then next, and that, whether the title should have been then fully completed or otherwise, and without prejudicing the right of having the same completed where then defective, and with all other necessary parties whose concurrence could, at the time, be obtained for that purpose, convey, or otherwise assure, the premises sold, in manner and upon the several trusts provided for in the first agreement, and in all respects according to the same agreement, so far as related to such assurance or assurances, and in the same manner as if the title had been then complete and accepted, and possession given thereon under the first agreement; provided nevertheless, that nothing contained therein was intended to disturb or alter the payment of the said three several instalments of 100,000l. each, or of the interest |