duty on either deed, but only a single duty on each. So, if there be both a release, and lease by bargain and sale, there are two duties. *[PATTESON, J. I should think that there must be a stamp of 17. 15s. in the [*30 first instance; but the further charge seems to apply only to cases of actual sale, when it is imposed ad valorem.] Certainly, if a conveyance for natural affection require no second stamp at all, the argument fails. But if there had been a lease and release, for natural affection, there must have been a stamp of 17. 15s. on each, as conveyances not otherwise charged. [PATTESON, J. There is first a charge on the conveyance ad valorem, and then, if that conveyance be a feoffment, an additional ad valorem charge is imposed. How can you apply that here? Lord DENMAN, C. J. How can you make an ad valorem charge on natural love and affection ?]

THE COURT(a)

Refused the rule.

MASON against MORGAN. Friday, Nov. 6.

A promissory note made payable to a woman who is married at the time of the making, passes by the indorsement of the husband alone, during the coverture.

ASSUMPSIT. The first count of the declaration stated that the defendant, on, &c., made his promissory note payable to Sarah, then and still the wife of John Barnard, or order, and that John Barnard indorsed it to the plaintiff. The second count stated the note to have been made payable to John Barnard or order, and that John Barnard indorsed. The third count stated that Sarah Ann, the wife of the plaintiff, while she was unmarried, had advanced [*31 money to the *defendant; that the defendant, to secure it, and while Sarah Ann was unmarried, had made the promissory note for the amount payable to Sarah, then and still the wife of John Barnard, or order, and delivered it to her in trust and for the use and benefit of Sarah Ann; that before the bill became due, the plaintiff intermarried with Sarah Ann, and became thereby entitled to have the note indorsed to him, and that John and Sarah Barnard indorsed it to him. Pleas to each count severally, that the defendant did not make the promissory note in the three counts mentioned in manner, &c. On the trial before Lord Denman, C. J., at the adjourned sittings at Guildhall after Trinity term last, it was proved that the note was payable to Sarah Barnard, and that John Barnard had indorsed it singly. The counsel for the defendant objected that Sarah Barnard ought to have indorsed also, but his lordship overruled the objection, and a verdiet was taken for the plaintiff, with leave for the defendant to move to set it aside and enter a nonsuit.

Godson now moved accordingly. In M'Neilage v. Holloway, 1 B. & Ald. 218, it was held that the husband of a woman to whom a bill had been made payable while she was sole, and who had married before its maturity, might sue alone, without the wife's indorsement; but Abbott, J. does not appear to have altogether assented to the reasons given by the rest of the court; and the authority of the case was questioned by him afterwards in Richards v. Richards, 2 B. & Ad. 453. There it was held that a woman who had advanced money, which she had *received as administratrix, to her husband, and had taken a joint and several note from him and two others, payable to herself, by way of security, might sue the two others after her husband's death. [PATTESON, J. It has been held, that she could not indorse alone during her coverture; (Connor v. Martin, 1 Str. 516.)] That is admitted; but the indorsement of both husband and wife is necessary, that the continuation of interest from party to party may appear on the instrument.

(a) Lord Denman, C. J., Taunton, Patteson, and Williams, Js.

[*32

Lord DENMAN, C. J. A party who takes such an instrument is to satisfy himself that he takes it from the actual owner; and that is all he need do. There is no ground for the rule.

TAUNTON, PATTESON, and WILLIAMS, Js., concurred.

Rule refused.

TARLETON, and BERKLEY, Assignee of POLLARD, a Bankrupt, against ALLHUSEN and Another. Saturday, Nov. 8.

A purchaser of goods accepted a bill for the price, which the vendor indorsed over; and the indorsee recovered judgment on the bill against the purchaser, but did not take out execution; afterwards the vendor took up the bill and received a mortgage from the purchaser, from which, however, there were no proceeds. Held, that the vendor was not, in point of law, paid for the goods.

ASSUMPSIT for goods sold and delivered. Pleas, first, non assumpsit; secondly, a set off for goods sold and delivered. On the trial before Lord Lyndhurst, C. B., at the last Northumberland assizes, the counsel for the plaintiff opened the following case. The goods in question were wheat, sold by the defendants for Tarleton *and Pollard, who had previously purchased the *33] same wheat from the defendants at a higher price than it produced on the ultimate sale. The price at which Tarleton and Pollard purchased remained unpaid, except so far as it was covered by the following transaction. Tarleton accepted a bill for 18007., which was handed over by Pollard to the defendants; and this, according to the plaintiffs' statement, was given and taken as applicable to part of the price of the wheat, which considerably exceeded 18007.; but the defendants insisted that the wheat was sold by them to Pollard only, and that they took the bill from Pollard as applicable to his general account, he being previously indebted to them in more than that amount. The bill was indorsed over by the defendants to Messrs. Backhouse and Co., who recovered judgment upon it, when due, against Tarleton. No execution was ever put in force upon this judgment; but the defendants took the bill up, and afterwards took from Tarleton a mortgage of certain property to the amount of the bill, from which mortgage, however, they had received no proceeds. On this statement, the Lord Chief Baron nonsuited the plaintiffs.

F. Pollock now moved for a rule to shew cause why the nonsuit should not be set aside, and a new trial had. The plaintiffs having been nonsuited on the opening of their own counsel, it may be assumed, for the purpose of the present motion, that the bill was given, as the plaintiffs say, to be applied to the price of the wheat, on the original purchase by Tarleton and Pollard, and on behalf of the two. The question is, whether this really amounts to part payment: for, if not, it must be admitted that the plaintiffs cannot say that the wheat, at *34] *the time of the last sale by the defendants, was the property of Tarleton and Pollard; or, at any rate, the defendants might claim to be unpaid vendors in possession, with a lien on the wheat; and, in either view of the case, they need not use their plea of set-off. [PATTESON, J. If they were unpaid vendors upon credit, they would have no lien, and then the plea would be necessary.] On any view of the case, the question is now whether, the defendants having received this bill for 18002., and having indorsed it over, and judgment having been recovered upon it against the acceptor, they are not, as between themselves and the acceptor, precluded from denying that they have received this 1800l. They have enabled Backhouse and Co. to establish a judgment debt against Tarleton, who is now no longer liable to be sued upon the bill. How can a man owe a debt, when the security, which has been given in payment for it, has been enforced, and is itself no longer capable of being the subject of an action?

Lord DENMAN, C. J. It was at one time supposed that the law was as Mr. Pollock puts it;(a) but there is now no doubt that judgment withovt satisfaction is no payment. We cannot grant the rule, unless some authority be shewn for it.

TAUNTON, PATTESON, and WILLIAMS, Js., concurred.

Rule refused.

*ATKINS and Another against OWEN. Saturday, Nov. 8.

[*35

In an action by A. against O. for money had and received, the plaintiff proved that 0. admitted having received a bill which was the property of A., and paid it into his own banker's the plaintiff also proposed to prove that O. had received credit with his banker for a bill similar in amount, and that there was no corresponding debit against O. in the banker's book, nor any credit given to O. for any bill to the same amount. Held, that the proposed proof was not admissible, A.'s bill not being produced.

ASSUMPSIT for money had and received. On the trial before Lord Denman, C. J., at the last Devonshire assizes, it appeared that a person of the name of Studdy, being indebted to the plaintiffs, transmitted to them in part payment, a bill for 1007., payable to his own order. Studdy had omitted to indorse this before transmitting it; and the plaintiffs sent it to the defendant, at whose house Studdy was then staying, with a request, according to the plaintiff's case, that he would get it indorsed by Studdy. The defendant paid it to his own banker. The plaintiffs, in order to fix the defendant with the receipt of the amount, proved that he had admitted his receipt of the bill, and his payment of it to his banker; they also proved a declaration by him that he had received it, not for the purpose of getting it indorsed by Studdy, but under circumstances entitling him to retain the amount. They further proposed to prove that the banker had carried to the credit of the defendant the sum of 1007., and that this was done on account of a bill, and that the bankers had not debited him with any countervailing charge; and also, that no other bill of the same amount had been placed to his credit. The counsel for the defendant objected to this evidence being gone into, unless the bill was produced; and the Lord Chief Justice non-suited the plaintiffs.

*Follett now moved for a new trial. The defendant having admitted [*36 the receipt of this bill, and his payment of it to his banker, the credit given to him by the banker on account of some bill must be applied to this, in default of proof of existence of some other bill to the same amount. Then there being no charge against the defendant in the banker's book, it is at least primâ facie evidence that the bill has not been dishonored, and that the defendant has had the benefit of the proceeds. The production of the bill could be necessary only for the purpose of connecting the transaction between the defendant and his banker with that between the plaintiffs and the defendant: but that connection is supplied by the defendant's own admission. [Patteson, J. Do you say that the defendant's having credit with his banker would be a receipt of the money by him? In Gillard v. Wise, 5 B. & C. 134, the credit was given by the parties ultimately liable on the bill. Suppose the defendant bad indorsed it for a debt, would that have been a receipt of the money by him?] The bankers, in the present case, had had the bill; and, as it was not shewn to be dishonored, the presumption necessarily was that they had received the money for it on the defendant's account.

Lord DENMAN, C. J. It appeared to me that there was nothing but the bill to connect the plaintiffs with the transaction; and, therefore, I thought that it ought to be produced.

(a) See the arguments and judgments in Drake v. Mitchell, 3 East, 251.

*37]

TAUNTON, J. It is most safe to abide by the general rule, *that a document to be identified, must be produced.

PATTESON, J. You ought to have traced the transaction further; a mere payment into the banker's hands is insufficient. The best proof would be the production of the bill; but at any rate, it is not enough to say that it has not been heard of.

WILLIAMS, J., concurred.

Follett, then moved for a new trial upon affidavits, and obtained a rule nisi.

BIRCH, Administrator of VINCENT against DAWSON.

Nov. 8.

Saturday,

A. bequeathed his leasehold messuages, with the grates, stoves, coppers, locks, bolts, keys, bells, and other fixtures and fixed furniture, to V. for life; and the household goods, furniture, plate, linen, china, books, wines, and liquors, and other properties in the messuage, not being comprehended under the preceding terms, fixtures and fixed furniture, to V. absolutely. There were in the messuage looking-glasses, standing on chimney pieces, and nailed to the wall; standing on (but not fastened to) brackets, and screwed the wall: Held, that V. took only a life interest in these.

DETINUE for looking-glasses and a book-case. On the trial before Littledale, at the sittings in Middlesex, in this term, it appeared that the plaintiff claimed, as administrator of Elizabeth Sarah Vincent, under the will of George Dawson. The will contained the following clauses :-I give and bequeath unto my son G. P. Dawson, and to Frederick Bossy, my leasehold messuage, being, &c., with the grates, stoves, coppers, locks, bolts, keys, bells, and other fixtures and fixed furniture therein, and also the household goods, furniture, *plate, *38] linen, books, china, wines, and liquors therein at the time of my decease, upon the trusts herein-after declared of and concerning the said leasehold messuage, fixtures and fixed furniture, upon trust to permit Elizabeth Susan Vincent to have the use and enjoyment thereof during her life, she paying, &c.; and as to the said household goods, furniture, plate, linen, china, books, wines, and liquors, and other properties in that messuage not being comprehended under the preceding terms fixtures and fixed furniture, in trust for the said E. S. V. absolutely as her own property." The looking-glasses stood on the chimney pieces, and were fastened by nails on each side to the wall. The bookcase stood in a recess which it did not fit, upon brackets which were fixed to the wall, but to which it was not attached; and it was fastened above by a screw to the wall, in order to prevent it from falling. The learned Judge, being of opinion that these articles came within the terms "fixtures and fixed furniture," nonsuited the plaintiff.

G. T. White now moved for a new trial. The particular words used in conjunction with the general words "fixtures and fixed furniture" will restrain tho latter, which can only apply to things ejusdem generis with the former, according to the dictum of Lord Lyndhurst in Lewis v. Rogers, 1 Cr. M. & R. 52; S. C. 4 Tyrwh. 875. Here the particular words "grates, stoves," &c., comprehend exclusively articles necessary for the occupation of the house; the articles in question are not so. Again, the class of property first mentioned in the *39] will is to go with the leasehold *messuage. The lease might expire in the lifetime of E. S. Vincent; and it is probable that the testator meant to give her an absolute property in all which would not necessarily, on such an event, go to the reversioner as fixtures, but might be removed during the term. Now, the chimney-glasses and book-case would go to the reversioner if left in the house after the term, but not otherwise; Poole's case, 1 Salk. 368. In Beck v. Rebow, 1 P. W. 94, there was a devise in trust to perform marriage articles, in which latter it was covenanted that there should be granted to the

plaintiff a house and "all the pictures upon the staircase, over the doors and chimney-pieces and all things fixed to the freehold of the messuage; and it was held that pier-glasses, hangings, and chimney-glasses, nailed to the wall, without any wainscot between them, did not pass under the words. Yet in that case there was no description, as in the present, of articles necessary for the occupation of the house. In Allen v. Allen, Mosely, 112, a question arose between the heir and the devisee of "furniture;" and the Lord Chancellor (King) said, "By the word furniture, the defendant is not entitled to the marble slabs or chimney-pieces, or any thing fixed to the freehold in the house; . glasses in pannels are to be considered as part of the freehold, but not if they are screwed in.” "Fixed furniture" here must mean the same thing as "fixtures;" but if the meaning of the testator, in his use of the word, is to be speculated upon, the only safe test must be the other words which he has used. *Lord DENMAN, C. J. The will mentions three clauses of articles; fix[*40 tures, fixed furniture, and furniture not fixed. We must see what will answer to each of those three clauses. Bells and other fixtures constitutes the first. The articles which may be removed by the hand at onee constitute the third. The intermediate class is furniture which is fixed; and that appears to me to comprehend the articles in question.

TAUNTON, J. I perfectly agree with Mr. White, that looking-glasses and book-cases are not only not specifically the same as grates, stoves, and the other articles enumerated in the earlier part of the will, but also that they are not ejusdem generis with such articles. But I know of no rule which lays down that, when such general words as we have in this case occur, their application is to be limited to things ejusdem generis with those which have been before enumerated. We are, therefore, at liberty to consider the only real question in this case; that is, whether looking-glasses and book-cases are "fixed furniture," in the sense in which the testator has used the words. Now it is clear that by "fixed furniture" he meant something besides mere fixtures. Are not looking-glasses furniture; and are not these looking-glasses fixed? If so, are they not fixed furniture? I think that fastening the glasses by nails, and the book-case by a serew, makes them fixed. Both descriptions, therefore,

concur.

PATTESON, J. The testator has chosen to use expressions which are new; but it is clear he makes a distinction between fixed furniture and furniture which is not fixed. The furniture in question is fixed. It *may, indeed, be said that "fixtures" must mean only articles of the same kind with [*41

those before enumerated; but the gether.

"fixed furniture" is another thing alto

WILLIAMS, J. I entirely agree. Mr. White is driven to contend that, in this will, "fixtures" and "fixed furniture" mean the same thing; whereas it is obvious that the words are used in express contradistinction; just as, on the other hand, the "fixed furniture" is opposed to books, wines, &c., which are not fixed at all. The argument as to "fixtures" is therefore inapplicable.

Rule refused.

PHILPOTT against JONES. Monday, Nov. 10.

Plaintiff, in an action of debt, proceeded for 187., but delivered a particular of demand, containing items to the amount of 117. for spirits supplied in quantities not amounting to 208. at a time, and 231. 2s. for other articles. It appeared at the trial that defendant had paid plaintiff 177., but there was no proof of any apppropriation of the payment by either. The jury found that the plaintiff had appropriated 11 of the 177. already paid, to the demand for spirits, and they gave him a verdict for 177.

Held, that such finding was not in contravention of stat. 24 G. 2, c. 40, s. 12, which pro