defendant had, within a reasonable time, complied with a legal demand, viz. a demand made at a reasonable time and place. I think that the direction was right, and that the verdict was right also; but I strongly incline to think that the Judge ought to have nonsuited the plaintiff.

HOLROYD, J. It seems to me that the plaintiff is not entitled to recover. I think that the demand to inspect the rate was not sufficient, because it was not made at a reasonable time and place. I think, also, that the plaintiff was not a party grieved, because he did not sustain any injury by the refusal to allow him to inspect the rate. The being an inhabitant does not make him a party grieved. It has been held, under the bankrupt laws, that unless the party be a creditor, he is not a party grieved within the meaning of those

statutes.

BAYLEY, J., concurred.

Rule discharged.

DRANT v. BROWN, Executor of LEGGOTT.

[*665

A. entered into a written agreement with B. for the hire of a piece of land for the pur pose of making bricks. C. afterwards made an offer in writing to let another piece of land to A. upon the terms contained in the agreement between him (A.) and B.; and at a subsequent time A. verbally accepted this offer. In an action by C. for a breach of some of the terms of this contract: Held, that the written offer made by C. was admis. sible in evidence without being stamped.

ASSUMPSIT on a special agreement. The declaration stated, that, in consideration that plaintiff would let to defendant's testator, one Leggott, a certain piece of ground to be dug for clay to make bricks, he (Leggott) undertook not to dig deeper than three feet; breach, that he had dug five feet deep, and thereby injured the land. Counts on a quan. mer., for suffering and permitting Leggott to dig and carry away a quantity of clay; for clay bargained and sold to Leggott, and by him accepted, dug, and carried away, for use and occupation of a close by Leggott, and on an account stated between plaintiff and Leggott. Plea, general issue. Plea, general issue. At the trial before Bayley, J., at the York Summer assizes, 1824, a witness proved, that in the month of March, 1815, the plaintiff and Leggott, the testator, met at a club, when the latter complained that he was likely to lose a piece of land which he had contracted to rent of one Grant, upon certain terms, for the purpose of digging clay to make bricks. Plaintiff said, that if that bargain went off he would let him a piece of land on the same terms, and put his offer in writing as follows: "Memorandum, that I, George Drant, do hereby offer to Mr. J. Leggott, the clay of two acres, two roods, and twenty perches of land, for the purpose of making bricks, upon the same conditions as the said J. Leggott hath made with J. Grant, the conditions being shown that now exist between J. Leggott and J. Grant, and a price according to quantity being allowed. This agreement to be void on the first of April, if no further [*666 arrangements are entered into." Before the expiration of that time the bargain between Leggott and Grant went off; and at a subsequent meeting before the 1st of April, Leggott agreed, verbally, with the plaintiff, to take his land upon the terms before offered. The witness heard the terms specified at the time. On his cross-examination, it appeared that the plaintiff's offer was reduced into writing. The plaintiff's counsel had produced the agreement entered into between Grant and Leggott, in which the terms were specified,

and that had an agreement stamp. Williams, for the defendant, contended, that they were also bound to give in evidence the written offer made by the plaintiff; he was then required by the other side to produce it, pursuant to a notice given for that purpose; he did so, and it not being stamped, he contended that it could not be read, and that the plaintiff must, therefore, be nonsuited. The learned Judge thought that the document might be read in evidence, although unstamped, and the plaintiff having proved the other allegations in his declaration, obtained a verdict, but the defendants had leave to move to enter a nonsuit, if the evidence of the contract was improperly admitted. In Michaelmas term, a rule nisi for entering a nonsuit was accordingly obtained, against which

Scarlett and F. Pollock, showed cause. The paper containing the terms originally agreed upon between Grant and Leggott, and that containing Grant's proposal, form together but one agreement. It was therefore, sufficient to have a stamp upon either, and the first paper being stamped, both were admissible in evidence. But if that were otherwise, still the second paper *667] was not necessary to the plaintiff's case; he showed that, at the second meeting between the parties, they agreed by parol that the land should be held according to the terms of a written agreement, which written agreement was stamped. The plaintiff's case was, therefore, complete, without the production of the written proposal made by him.

J. Williams and Parke, contra. It may be very true, that the plaintiff gave evidence which would have sufficed to prove his case if nothing had been known of the written document; but as soon as it appeared that the bargain made between the plaintiff and Leggott, was reduced into writing, the parol evidence became insufficient. That document was not a mere proposal, but a memorandum of an agreement to be thereafter completed. Neither was it sufficient to stamp the former agreement between Grant and Leggott, that was only admissible in evidence by reason of reference being made to it in the subsequent writing. Now, the exception in the stamp act is only where a bargain is contained in several letters, but the document in question was not a letter, but a memorandum of agreement; it ought not, therefore, to have been admitted, and without it the plaintiff could not establish his case.

ABBOTT, C. J. I quite agree to the proposition of law laid down for the defendant, that if a bargain made by parol is afterwards reduced into writing, that is the perfection of the agreement. But here the order was reversed; a written proposal was made at the first meeting, but then it was uncertain whether there would or would not be a contract. The fact as to the *668] *agreement between Leggott and Grant, was first to be ascertained. Then an agreement was made, by parol, that Leggott, should have the land on certain terms. The writing signed by the plaintiff was a mere proposal, and was never signed by Leggott. The plaintiff, therefore, had legally made out his case before that paper was produced, and when produced, it did not show that there was any written contract.

BAYLEY, J. The stamp act only applies to agreements, or minutes or memorandums of agreements; and, therefore, unless the paper in question contained an agreement, or a minute or memorandum of agreement, it did not come within the operation of that statute. That paper contained a mere proposal to let the land, according to the terms contained in another paper which was stamped; and the parties ultimately agreed to those terms by parol. The second paper, therefore, contained neither an agreement, nor a minute, or memorandum of agreement.

HOLROYD, J. I am of opinion, that the second paper given in evidence did not require a stamp. A stamp is not necessary to every writing given in evidence to support an agreement, but only to agreements themselves, or minutes, or memorandums of agreements. This was a mere proposal; if it had been accepted by writing, that must have been stamped, but being accepted

by parol, the agreement was in law a parol agreement. The evidence was, therefore, properly admitted, and the rule for a nonsuit must be discharged. Rule discharged.

LITTLEDALE, J., was absent.

*STONEHOUSE, Assignee of HARRISON, a Bankrupt, v. READ. [*669

In an action by the assignees of a bankrupt, it was referred to an arbitrator to take accounts between the parties, with liberty to him to state on the face of his award any point of law that either party might require. The arbitrator by his award found the following facts. The defendant, before the bankruptcy, had accepted bills drawn upon him by the bankrupt. These bills had been paid away to creditors of the bankrupt. At the time of his accepting the bills the defendant, as the agent of the bankrupt, had in his hands money of the bankrupt to the full amount of the sum for which the bills were drawn, and these funds had not been withdrawn at the time of the bankruptcy. After the bills became due respectively, and before the act of bankruptcy, the holders of the bills, in order to relieve the defendant from his responsibility to them, took from the defendant a composition upon the acceptances, and delivered up the bills to the defendant; but the bankrupt was not a party to this arrangement. The award then stated that, in taking the accounts between the parties, the arbitrator had not allowed the amount of the sums for which the bills were drawn to be set off by the defendant, but only the amount of the composition: Held, that the defendant was entitled to have the full amount of the bills allowed him in account.

ASSUMPSIT, for money had and received, and on an account stated. At the trial before Abbott, C. J., at the London sittings, after Michaelmas term, 1823, a verdict was taken for the plaintiff for 40007., subject to the award of a barrister to whom it was referred to take all accounts between the parties, with liberty to state on the face of his award, any point of law that either party might require. The arbitrator by his award found, that on a settlement of all accounts between the parties, the defendant was, and still is, indebted to the plaintiff as assignee as aforesaid, in the sum of 1772/. 138., and directed the same to be paid; and that the defendant should forthwith deliver to the plaintiff a bill of exchange, drawn by the defendant upon and accepted by the bankrupt for the sum of 1334/. 12s. The award then stated, that it was proved before the arbitrator that the defendant had, before Harrison became bankrupt, accepted bills drawn upon him by the bankrupt to a considerable amount; that the bills had been paid away to creditors of the bankrupt; that at the time of his so accepting the bills, the defendant, as the agent *of the [*670 bankrupt, had in his hands monies of the bankrupt to the full amount of the sum for which the bills were drawn; that these monies had not been withdrawn from the hands of the defendant before the bankruptcy of Harrison; and that after the bills had respectively become due, and before the act of bankruptcy, upon which the commission against Harrison was founded, the holders of the bills, in order to relieve the defendant from his responsibility to them, consented to take, and did take from the defendant a composition upon the acceptances, and upon payment thereof by the defendant, the bills of exchange were delivered up by the holders of them to the defendant, to which arrangement the bankrupt was not a party. The award further stated, that in taking the account between the parties, the arbitrator thought that the defendant ought not to be allowed to set off the amount of the sums for which the bills were drawn, but the amount of the composition only, and had in his award allowed to him the full amount of the composition actually paid by him; but that if the defendant was entitled to charge in the account against his principal, the bankrupt, or the above named plaintiff as assignee as aforesaid, the amount of the sums for which the compounded bills were

drawn, the balance would be in his favor. A rule nisi having been obtained for entering a verdict for the defendant or a judgment of nonsuit.

Marryat and Comyn, now showed cause. The defendant may either be considered in the character of agent of the bankrupt, or as the acceptor of the bills. As agent of the bankrupt, he is not entitled to charge him with more money than he actually paid on his account. The agent is bound to do the best he can, consistently with his duty, for the benefit of his princi

*671] pal. [Bayley, J. Suppose the bill holders to have been induced to take the composition, on the supposition that Read had no effects of Harrison in his possession, and it turned out afterwards that he had effects to the full amount of the bills, the creditors would be entitled to treat the composition as void, and to call upon him for the balance. Therefore, although it may turn out that Read, ought not to have the money, yet it may be equally clear that Harrison ought not to have it.] The defendant, by seeking to retain beyond the amount which he has paid, attempts to turn himself into a purchaser of the bills. Now that cannot be, because whatever he has paid, has been paid out of the funds of the bankrupt. Secondly, considering the defendant in his character of acceptor of the bills, he is in the nature of a surety, and in that character he cannot charge his principal with more than he has actually paid. Scarlett, Gurney, and Brodrick, contra. The defendant was the commercial agent of the bankrupt, and had funds in his hands belonging to his principal, and accepted bills on his account to the amount of those funds. Now, the very acceptance of a bill operates as a payment of the debt unless it be dishonored, and the drawer of the bill be called upon to take it up. Secondly, Harrison, paid his creditors with these bills. He has, therefore, had full value for them. Thirdly, the composition was accepted, not in order to confer any benefit on Harrison, but on Read, and it would have the effect of defeating that object if the bankrupt could call upon Read, to pay him the dif

ference between the composition and the full amount of the bills. If *672] the holder of a bill gives time to the acceptor without the assent of the drawer, the latter is discharged. Here, the holders of the bills accepted the composition without the knowledge of Harrison, and he is, therefore, discharged. Having and the full value of them, and being under no liability in respect of the bills, the bankrupt or his assignee can have no further claim upon the defendant. Suppose the drawer had not been discharged, and the composition had been made with his consent, he would then have remained liable for the difference between the composition and the full amount of the bills; and if he had paid that difference, he would have been entitled to recover it from the acceptor. Now it is contended on the other side, that he is entitled to the same benefit as if he had actually paid the difference out of his own estate. As far as the drawer is concerned, it is to him the same thing as if the acceptor had paid the full amount of the bills, for the drawer has had the full value of them, and is under no liability in respect of them. Suppose the holders of the bills chose to make a gift of them to the acceptor, could the drawer have claimed the benefit of the gift so made to the acceptor, and have called upon him to pay the amount? Here the holders did give up the bills to the acceptor upon being paid a composition. The giving up of the bills for that composition, in point of legal effect, was a gift to the acceptor of the difference between the composition and the full amount of the bills. The latter may be considered to have paid the full amount, and to have had the difference between that sum and the composition returned to him by the holders. [Holroyd, J. If it can be considered that there was an actual *673] payment of the full amount of the bills by the acceptor, and a gift of part by the holder, there can be no doubt that the defendant is entitled to charge the bankrupt's estate with the whole sum actually paid; but unless that be the effect of what has taken place, I have great difficulty in saying that the defendant can charge the bankrupt for more than he has actually paid. VOL. X.-39 2 c 2

It appears upon the award, that supposing the full amount of the bills to have been paid, there remains a balance due to Read. Now, if Harrison had not become bankrupt, could Read have maintained any action for that balance? If he had paid the full amount of the bills, and that payment exceeded the funds in his hands, Read might have maintained such action.] Read might have supported such an action, as between him and Harrison there was a payment of the full amount of the bills. Suppose the holder gave a month's time to the acceptor, the drawer is discharged, but the holder still has a right of action against the acceptor. Could the drawer, before the month expired, bring an action against the acceptor, on the ground that he had not paid the money according to his undertaking? If, when the month expires, the holder upon receiving 15s. in the pound gives up the bill to the acceptor, that would be an answer to any action at the suit of the drawer. All that the acceptor undertakes is, that the estate of the drawer shall be discharged, that his funds shall be applied in satisfaction of the bill, and that he shall not be called upon to pay. Whether he performs that contract to the drawer by obtaining a gift of the bill from the holder, or by paying him a composition, is wholly immaterial.

*ABBOTT, C. J. I am not at all surprised that the learned arbitrator should have come to the conclusion of law upon the facts found which [*674 he appears to have done, for it appeared to me, for some time after I had perused this award, that the conclusion of law to which he had come was the right one. On further consideration, however, I am of opinion, that that conclusion is erroneous, and that this award must be set aside. My opinion is founded upon this single and short point, that the bankrupt and his assignees have had the full and entire benefit of the bills accepted by the defendant; and, having had that, I am of opinion, that they are entitled to no more.

BAYLEY, J. In the early part of the discussion of this case, I had upon my mind exactly the same impression which my Lord Chief Justice had; but during the discussion my opinion has entirely changed. At first, I thought that, as against his principal, the defendant, as agent, was only entitled to have relief to the extent to which he had actually paid; if the composition in this case had been taken for the purpose of relieving the bankrupt only, I should have continued of the same opinion; but it appears from the award that it was taken for the purpose of relieving Read only. Now, it may have been taken either fairly or not fairly, and I shall consider it under both points of view. If it was taken fairly, and under a full representation by Read to all the bill holders of the exact situation in which he stood, then it would be clear that they must have intended to relieve him, and him only. The effect of that would be that they would take from him a composition, say ten shillings in the pound, upon a secret understanding "between him and them, that Harrison was to be completely discharged. That would [*675 make it, as between Harrison and the bill holders, a payment of twenty shillings in the pound. It must have been intended that Read should be effectually discharged by the payment of the ten shillings in the pound, for if Read were still to be liable to Harrison for the difference, he, and not Read, would benefit by the composition. The only persons who would lose by it would be the bill holders, for they would get their composition only; Read would pay ten shillings in the pound, and Harrison would be relieved from the payment of twenty shillings in the pound, to which he was liable as drawer; and, in addition to that, would be entitled to claim ten shillings in the pound from Read. Assuming, however, that this composition was not made fairly by Read, and under a true representation to the bill holders of the situation in which he stood, it does not vary the case as between Harrison and Read. The composition may be fraudulent as against the bill holders; but if it be so, that remits them to their original right, they would then be no longer bound by the receipt of the composition, but would