that the parties agreed that the 40%. allowed in account should be considered as so much money paid by the defendant to the plaintiff as a premium for the lease. The jury having found for the defendant, leave was reserved for the plaintiff to move to enter a verdict for 371. 4s., if the Court should be of opinion that the defendant was not entitled to set off the 40%. Bovill now moved accordingly.-This is not a case in which the 48 Geo. 3, c. 149, and 55 Geo. 3, c. 184, required the consideration to be stated in the lease. The 55 Geo. 3, c. 184, Sched. Part 1, "Lease," imposes on a lease "granted in consideration of a sum of money by way of fine, premium, &c., and also of a yearly rent amounting to 201. or upwards, both the ad valorem duties payable for a lease in consideration of a fine only, and for a lease in consideration of a rent only." Then, under the head "Lease," &c., "granted in consideration of a sum of money by way of fine, premium, &c., without any yearly rent," there is imposed "the same duty as for the conveyance on the sale of lands for a sum of money of the same amount." The title "Conveyance" in the same schedule imposes an ad valorem duty on conveyances, "whether grant, disposition, lease, &c., upon the sale of any lands;" and there is this note: "The purchase or consideration-money is to be truly expressed and set forth in words at length in or upon every such principal or only deed or instrument of conveyance." That, however, relates only to conveyances upon sale. There is a similar provision under the title "Conveyance" in the 48 Geo. 3, c. 149, but that also has no application to leases. The 24th section of the 48 Geo. 3, c. 149, enacts, "That, where the full purchase or considerationmoney shall not be truly expressed or set forth, it shall be lawful for the purchaser to recover back from the seller so much of the purchase or consideration-money as shall not be expressed and set forth, or the whole thereof, if no part of the same shall be so expressed and set forth, either 1850. GINGELL v. PURKINS. 1850. GINGELL V. PURKINS. in an action for money had and received for the use of the party suing for the same, or by action of debt, bill, plaint, or information." The 8th section of the 55 Geo. 3, c. 184, enacts, "that all the powers, provisions, clauses, regulations, and directions, fines, forfeitures, pains, and penalties, contained in and imposed by the several Acts of Parliament relating to the duties hereby repealed, and the several Acts of Parliament relating to any prior duties of the same kind or description, shall be of full force and effect with respect to the duties hereby granted," &c. In the 48 Geo. 3, c. 149, Sched. Part 1, "Conveyance," the same words are used as in the 55 Geo. 3, c. 184, Sched. Part 1, "Conveyance," with the exception of the word "lease," which has been introduced into the latter Act. But under the title "Lease," Sched. Part 1, in the 48 Geo. 3, c. 149, there is no mention of an ad valorem duty, though there is under the title "Conveyance" in that Act. The 22nd section of the 48 Geo. 3, c. 149, enacts, that "in all cases of the sale of any lands," &c., "where a duty is imposed on the conveyance thereof in the schedule hereunto annexed, in proportion to the amount of the purchase or consideration therein or thereupon expressed, the full purchase or consideration-money which shall be directly or indirectly paid, or secured, or agreed to be paid for the same, shall be truly expressed and set forth in words at length in or upon the principal or only deed," &c. And it proceeds to impose a penalty on purchasers and sellers omitting so to do. That section relates only to conveyances upon a sale, and where the consideration-money is required to be expressed in words at length; and the incorporating clause of the 55 Geo. 3, c. 184, relates to those duties only which are " of the same kind or description." A conveyance upon a sale is not of the same kind or description as a lease; therefore, as the enactments of the 48 Geo. 3, c. 149, requiring the consideration to be expressed, do not apply to leases in that statute, they cannot apply to leases in the 55 Geo. 3, c. 184. The 48 Geo. 3, c. 149, is incorporated with the 55 Geo. 3, c. 184, title "Leases," only so far as relates to the ad valorem duty, but not with respect to its other provisions under the title "Conveyance." [He cited Cattle v. Gamble (a).] Besides, assuming that the defendant could recover back the money, he is not therefore entitled to set it off, but must pursue the remedy given by the 24th section of the 48 Geo. 3, c. 149: Stevens v. Evans (b). That is a penal statute, and must be construed strictly. No debt exists, nor is there any right to the money until it is recovered by action, and consequently there is nothing which can form the subject of a set-off. Further, there has been no payment of the 40%., but only a settlement of accounts between the parties, so that no money was received for the defendant's use. Lee v. Merrett (c) decided, that a sum of money allowed in account by mistake, on a settlement between plaintiff and defendant, when the defendant paid the balance after deduction of that sum, could not be recovered back in an action for money had and received, the sum allowed never having passed between the parties otherwise than by such allowance. [Parke, B.-It is difficult to see on what precise ground that case proceeded, for no reasons are given in the judgment.] In Addison on Contracts, p. 78, it is said, "If no money has been paid, but a sum has been allowed by mistake on a settlement of accounts, the sum so allowed cannot be recovered in an action for money had and received." [Parke, B.— Wade v. Wilson (d) is an authority to the contrary, and there are other cases to the same effect.] The earliest case is Jeffs v. Wood (e), but that is in effect overruled by Lee v. Merrett (c). [Alderson, B.-Lee v. Merrett is at variance with Lucas v. Jones ().] POLLOCK, C. B.-There ought to be no rule. The defendant is entitled to set off this claim given by the Stamp (a) 5 Bing. N. C. 46. (6) 2 Burr. 1153. (c) 8 Q. B. 820. (d) 1 East, 195. 1850. GINGELL บ. PURKINS. 1850. GINGELL V. PURKINS. Acts against the plaintiff's demand. The 55 Geo. 3, c. 184, ought to be construed in exactly the same way as if the 24th section of the 48 Geo. 3, c. 149, had been re-enacted in so many words; and then the question is, in what manner ought it to be construed, if we had found it as a distinct and substantive clause in the 55 Geo. 3, c. 184. It appears to me that we ought to construe it as requiring the consideration-money to be expressed in the conveyance, whether it be a conveyance upon a sale or a lease. That is to be collected from the fact of the schedule tit. "Conveyance" expressly naming a "lease," and the schedule tit. "Lease" referring, with respect to the consideration-money, to the title "Conveyance." Then, under the 48 Geo. 3, c. 149, s. 24, the defendant is entitled to recover back the consideration-money not expressed in the lease, by an action for money had and received, or by debt, bill, plaint, or information. It is argued, that this is a penal statute, and ought to be construed strictly. But that is not so. The venue in the action is not local, nor does the general law as to penal actions attach. It is only a statutory provision that money paid as a consideration for a lease, and not expressed in the conveyance, may be recovered back. Then it is said, that the money can only be recovered by action, and cannot form the subject of a setoff. That, however, is taking a very narrow view of the statute of set-off, and certainly many of the objects of that enactment would be defeated if we were to hold that this is not substantially a claim which may be the subject of a set off. It was then argued, that this money cannot be set off, for no money was actually handed by the defendant to the plaintiff, and therefore the plaintiff never received any for the defendant's use. But if the parties agreed that the consideration for the lease should be paid by deducting it from the defendant's claim for work done, that is exactly the same thing as payment, and that question was properly left to the jury. The recent decision in the Court of Queen's Bench, of Lee v. Merrett, is relied on as an authority to the contrary. Now, what were the precise circumstances under which that case was decided does not appear by the report, nor does it appear upon what ground the Court came to that conclusion. They may have determined not to try a right to tithes in an action for money had and received, or they may have thought, that when the parties made a settlement of that description, they made it with reference to an existing agreement, but by which the one party did not mean to be bound if the other insisted upon leaving the matter open; or it may be the Court thought, that, as it was a question of tithe and highway rate, the parties ought not to be concluded by some settlement which they might have made, but ought to enforce their claims in the ordinary way, because it is inconvenient to discuss complicated questions arising out of tithe or highway rate in an action for money had and received. I am not, however, disposed, as that case stands, to accept it as law, seeing that there is a solemn decision of this Court, in the case of Standish v. Ross (a), quite inconsistent with it. If we were to act on Lee v. Merrett we should be overruling Standish v. Ross, and I, for one, am not disposed to take that course. For these reasons, I think that the direction of my Brother Rolfe was right, and that there ought to be no rule. PARKE, B.-I am of the same opinion. I think all the objections untenable. The plaintiff is entitled to recover 371. 48., unless the defendant is entitled to set off the 40%. which he says that he has paid the plaintiff as a premium for the lease. There is no doubt, that, under the 48 Geo. 3, c. 149, s. 24, he might, if he had paid it, recover back the amount in an action for money had and received. The first question then is, whether he has paid it; and there appears to me ample evidence of payment. It was a question of fact for the consideration of the jury, whether, when the parties agreed that the plaintiff should be in the same situa(a) 3 Exch. 527. 1850. GINGELL V. PURKINS. |