power, for the charter imposes the qualification of inhabitancy. For these reasons I concur in thinking that this rule must be discharged. HOLROYD, J., gave no opinion, not having been present during the argu ment. LITTLEDALE, J., concurred. Rule discharged. BUCKLE v. BEWES. [*688 The sheriff having taken goods in execution under a fi. fa., the proceeds of which are not sufficient to satisfy the plaintiff's claim, cannot against him retain any thing beyond the poundage allowed by the statute 29 Eliz. c. 4. THIS was an action against the sheriff of Devon. The first count of the declaration, after stating in the common form that the plaintiff had recovered a judgment, and had issued a fieri facias thereon, directed to the defendant as such sheriff, and that the defendant had seized goods, and levied money thereon, charged the defendant with wrongfully retaining a part of the money levied. The last count was founded on the 29 Eliz. c. 4, and after alleging the judgment, fieri facias, and levy as aforesaid, proceeded to state as follows: that "the said defendant, so being sheriff as aforesaid, not regarding his duty as such sheriff, nor the statute in such case made and provided, afterwards, to wit, on, &c., at, &c., by reason and color of his said office of sheriff, wrongfully, illegally, and oppressively had, received, and took, indirectly of and from the said plaintiff for the serving and executing of the said last mentioned execution, more and other consideration and recompense than in the statute in that case made and provided is limited and appointed in that behalf, that is to say, by deducting from the monies so levied, which were before such deduction insufficient to satisfy the said last mentioned damages, a large sum of money, to wit, 50l. 58. more than in the said statute is limited and appointed, whereby the said plaintiff is damaged and aggrieved to the amount of that sum of money, contrary to the form of the statute, &c. The defendant had suffered judgment by default, and upon the execution of the writ of inquiry, the return to the writ was given in evidence, in which the sheriff [*689 stated, that after he had seized the goods, and before the sale, he was served with an injunction out of the Court of Chancery, restraining him from the sale of the goods; that afterwards, upon the injunction being dissolved, he proceeded to the sale of the same, and after deducting the poundage and certain legal payments, he further stated, that he had retained 501. 58., further part of the proceeds of the sale, for his necessary charges and expenses in and about the keeping possession of the goods, from the time when he was served with the injunction to the time of the sale, and that the residue of the money he had ready for the plaintiff." The whole proceeds of the sale were not sufficient to satisfy the amount of damages directed to be levied by the indorsement on the writ of fieri facias. The jury gave nominal damages on the first count, and the sum of 50l. 58. on the last count. Carter, in order to relieve the sheriff, now moved for a rule to show cause why the assessment should not be set aside, or the sum of 50l. 58. be entered as the damages on the first count, and the nominal damages only on the last count, on the ground that the circumstances under which the sheriff had retained the money did not amount to a receiving or taking of the plaintiff within the meaning of the statute. But the court were of opinion, that as the money levied was not sufficient to satisfy the plaintiff's claim, the retaining of any part which ought to have been paid over to the plaintiff, was an indirect receiving or taking from him, and they refused the rule. Rule refused. *690] *HAWKINS v. WARRE. In replevin, defendant avowed for rent due upon a demise at a certain fixed rent. Plea, that plaintiff did not hold under defendant at the rent mentioned in the avowry, and issue joined upon that fact. At the trial the defendant, in order to prove the holding as alleged, tendered in evidence certain unstamped papers, the effect of which was to show that the plaintiff had paid rent at the rate mentioned in the avowry: Held, that these papers were inadmissible for want of stamps, inasmuch as they were in effect tendered to prove the payment of the rent; for if they did not prove the payment of the rent they would not support the issue, and would on that ground be inadmissible. The defendant's steward proved that a lease had been executed by the defendant but not by the plaintiff, the terms of which had been reduced into writing by the assent of both parties, and he stated that to be the final agreement between the parties. The plaintiff, in order to negative this statement, tendered in evidence another unstamped paper in the hand writing of the defendant's steward, the effect of which was to show that it was subsequently proposed by him that the plaintiff was to hold at a rent different from that mentioned in the lease; Held, that as this paper was not signed by the parties, it did not amount to an agreement or minute of an agreement, but to a proposal only, and therefore, that it did not require a stamp, and was properly received in evidence. REPLEVIN for growing corn taken in the parishes of Kingston and Broomfield, in the county of Somerset, in certain closes of land and premises there situate, called Volis' Yards, Broomfield, Broomfield Down, north part of Hestercombe Park and Broad Meadow. Defendant avowed for 337. 10s. for three quarters of a year's rent due 25th of March, 1823, upon a demise at 450l. payable quarterly. There were other avowries claiming rent, at the rate of 432/., 430., and 4127. per annum. To these avowries the plaintiff pleaded non tenuit modo et forma and riens en arriere. At the trial before Bosanquet, Serjt., at the Taunton Spring assizes, 1824, the defendant proved, in support of the issues on the avowries, the following facts: The plaintiff held part of the lands in question under Mr. Warre, the father of the defendant, by a lease for seven years, which expired at Lady Day, 1815, at the rent of 3601. Upon the expiration of this term, the plaintiff continued in possession, and in 1818 a negotiation took place for a fresh lease, which negotia tion was conducted partly through the agency of Mr. Charter, who acted as steward to Mr. Warre. The draft of a lease was prepared under *691] the instructions of Charter. This draft was handed to Mr. Warre, who made various alterations therein, in the shape of observations upon the draft, and filled up the blanks which had been left for additional lands, of which the plaintiff had taken possession, and which were to be included in the new lease. After this a meeting of the parties took place, when a further alteration in the draft was made by Charter, and the draft as then settled, was stated by Charter to have been the final agreement between the parties. The iease was then engrossed. executed by Mr. Warre, and taken by Charter's servant to the plaintiff, with a bill of charges for preparing the lease, the amount of which bill was shortly afterwards paid by the plaintiff to Charter, but the lease was never executed by the plaintiff. The rent reserved by this lease was 4501., with a proviso for abating 20/., if wheat was under ten shillings a bushel; and for deducting a proportional part of the rent, in case the term should cease as to Higher Volis, in which Mr. Warre had only an estate for life, the immediate remainder being in Mrs. Warre. Upon the death of Mr. Warre, it was agreed between Mrs. Warre, her daughter, the defendant VOL. X.-40 2 D and the plaintiff, that 187. should be paid to Mrs. Warre, as the rent of Higher Volis; and the different avowries were framed so as to meet a claim for the whole rent of 4507.; the deduction of 20/., which would reduce the rent to 4301.; the deduction of 187. for Higher Volis, which would reduce it to 432/., and the two deductions joined, which would bring the rent to 4127. To show the acquiescence of the plaintiff in the terms of the lease, though he had not executed it, the defendant proposed to give in evidence certain unstamped receipts, purporting, that rent had been since paid upon the terms of that demise. *These receipts had been set forth by the now plaintiff, Hawkins, in a schedule to his answer to a bill filed against him for a specific per[*692 formance; and the papers produced were copies furnished by the now plaintiff, pursuant to an order to that effect. The first, which was tendered and rejected by the learned judge, was in the following form: The plaintiff then, in order to rebut the statement of Charter, that the draft of the lease contained the final agreement between the parties, produced an unstamped paper of a subsequent date in the hand writing of Charter, of which the following is a copy : "Old rent £360 0 0 *450l. a year, from Michaelmas, 1818, for a term of seven years, Mr. [*693 Warre, undertaking wheat shall be at 10s. a bushel, and barley 5s., upon the terms of the old lease." It was objected by the defendant's counsel, that this document was not admissible in evidence, on the ground of its not being stamped, and not being shown to have been authorised or adopted by Mr. Warre, or the defendant. The learned Judge received the evidence, and the jury found a verdict for the plaintiff for 4l. 4s. the amount of the expenses of the replevin bond. In Michaelmas term last, Pell, Serjt., obtained a rule nisi for a new trial. Wilde, Serjt., and R. Bayly, now showed cause. The receipts offered in evidence by the defendant were properly rejected. They were offered to prove that the plaintiff held under the defendant at the fixed rent mentioned in some of the avowries. Now unless the papers amounted to proof of the payment of the sums mentioned in them, they would not be any evidence of the plaintiff's holding under the defendant at such a rent. The receipts therefore, were offered to prove the payment of the rent, and not for a collateral purpose, and, consequently, were properly rejected, Jacob v. Lindsay, 1 East, 460. Secondly, the other paper was properly received as evidence of the terms of the negotiation then pending. It was not produced as evidence of the actual agreement between the parties. If it had been, it would no doubt have required a stamp. But it might properly be received as evidence of an unaccepted proposal although it was unstamped, Dalison v. Stark, 4 Esp. 163, Doe v. Cartwright, 3 B. & A. 326. *Pell, Serjt., Adam, C. F. Williams, and Manning, contra. The *694] receipts offered in evidence by the defendant were not for the purpose of discharging the party producing them from the obligation of payment, but for the purpose of establishing the collateral fact that the plaintiff held under the defendant, at the rent mentioned in the avowries. Now an unstamped instrument may be receivable in evidence for a collateral purpose: thus upon an indictment for forging an instrument, it is receivable in evidence although unstamped, Rex v. Hawkeswood, 2 E. P. C. 955. So an unstamped check is admissible, for the purpose of identifying property stolen, on an indictment for larceny, Rex v. Pooley, 3 Bos. & P. 316, and an unstamped policy may be read in evidence, to prove the effecting of a lottery insurance, Holland v. Duffin, Peake's C. 58. So in an action for bribery against a candidate at an election, an unstamped paper purporting to be a promissory note, which had been given by the voter as a cloak for the bribe is evidence to prove the fact of payment, or to confirm the testimony of a witness, Dover v. Maestaer, 5 Esp. N. P. 92. Here previously to the affixing of Miss Warre's signature, an account had been stated between the parties, for it could make no difference whether the paper set forth a regular debtor and creditor account, charging the rent on one side, and giving credit for the payment, disbursements, and allowances on the other, or exhibited the same items in one column, as was done here, Jacob v. Lindsay, 1 East, 460. Secondly, the unstamped memorandum was improperly received, because the question being what was the ultimate agreement between the parties, and this document being *produced for the purpose of negativing Charter's statement, that the *695] lease executed by Mr. Warre, contained the terms finally agreed on, it was in effect produced as evidence of an agreement. ABBOTT, C. J. I am of opinion that the rule for a new trial must be discharged. This is an action of replevin, in which the plaintiff declares that the defendant took the growing corn, and unjustly detained the same. The defendant avows the taking of the corn as a distress for three quarters of a year's rent in respect of premises which the plaintiff held under the defendant as her tenant, by virtue of a demise at a certain fixed rent. The plaintiff pleads to the avowry that he did not hold or enjoy the said closes in which, &c., with the appurtenances, as tenant thereof to the said defendant, by virtue of the said supposed demise, at and under the said rent, payable as in the said avowry mentioned, and issue is joined upon this fact. If the defendant could have established that the plaintiff held under her at the rent mentioned in the avowries, she would have been entitled to a verdict, but otherwise the plaintiff is entitled to the verdict upon these issues. The burden of proof that the plaintiff did so hold under the rent mentioned in the avowries lay on the defendant, and unless the rent was fixed there could be no distress. The mode in which the defendant had attempted to prove that the plaintiff so held under her was by showing, that in a former year the plaintiff had paid her rent equal in amount to that mentioned in some of the avowries, and for that purpose the defendant tendered in evidence certain unstamped papers, by which it would appear (if they were admissible) that the plaintiff in a former year did pay her rent at the rate mentioned in some of the avowries. But *696] taking away the fact that the rent was paid, the papers would only be evidence of a claim having been made by the defendant upon the plaintiff. They are produced, therefore, by the defendant to prove the fact of that sum having been paid by the plaintiff, and it is said, that although such an unstamped instrument cannot be used so as to operate as a discharge to the party producing it, it may be used for the purpose of creating a further charge against another. But by the stamp act 31 G. 3, c. 25, s. 16, which is incorporated in the 55 G. 3, c, 184., "no receipt, discharge, or acquittance, note, memorandum, or writing, shall be pleaded or given in evidence in any court, or admitted in any court to be useful, or available in law or equity as an acknowledgment of any debt, claim, accounts, or demands being paid, settled, &c., unless the same shall be stamped." Now here an unstamped paper was offered in evidence as an acknowledgment of a debt having been paid. I am clearly of opinion, that such evidence was not admissible, and that these receipts were properly rejected. The next mode by which the defendant attempted to prove that the plaintiff held under her the premises in question at a fixed rent was by showing that he had the estate according to the terms of a lease executed by the defendant's father, but not by the plaintiff. Charter, in his evidence stated that the lease so executed by Mr. Warre, was the final agreement between the parties. From his evidence, unexplained, it would appear that the terms proposed by Mr. Warre, in the draft which he had corrected, had been accepted by the plaintiff. In order to show that Charter was mistaken in that respect, an unstamped paper in his hand writing was produced, by which it would appear that he had subsequently *proposed to the plaintiff to pay a different rent from that mentioned in the lease. [*697 It was objected that for want of a stamp, this paper could not be read because it amounted to an agreement. I am of opinion, however, that it did not contain any agreement between the parties, but a mere proposal made by Charter, not corresponding with the terms of the lease. It cannot be treated as a contract between the parties, because it was not signed by them. The case is not distinguishable from Ramsbottom v. Tunbridge, 2 M. & S. 434. There a written paper delivered by the auctioneer to the bidder, to whom lands were let by auction, containing the description of the lands, the term for which they were let to the bidder, and the rent payable, but not signed by the auctioneer, or any of the parties, was held, not to be such a minute of the agreement as was required to be stamped. But in Ramsbottom v. Mortley, Ib. 445, a similar paper, signed by the auctioneer, was held to require a stamp. I think that the paper in this case, amounted to no more than if the defendant had said, "I made such and such proposals to the plaintiff." That being so, it required no stamp, and was properly received. BAYLEY, J. I am clearly of opinion, that the receipts were properly rejected, for the reasons given by my Lord Chief Justice. Then as to the other paper, the 55 G. 3, c. 184, requires that every agreement, or minute or memorandum of agreement shall be stamped. Now I think this paper did not contain any agreement, or minute or memorandum of an agreement, but that it contained only a mere unaccepted proposal. In Doe *v. Cartwright, [*698 3 B. & A. 326, upon the letting of premises to a tenant, a memorandum of agreement was drawn up, the terms of which were read over, and assented to by him, and it was then agreed that he should on a future day bring a surety and sign the agreement, neither of which he ever did; it was held that the memorandum was not an agreement, but a mere unaccepted proposal, and that the terms of the letting, therefore, might be proved by parol evidence. That case is an authority to show that the paper produced in evidence did not amount to an agreement, and that being so, I think it was properly admitted, and that the rule for a new trial must be discharged. HOLROYD, J., concurred. Rule discharged. |