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all intents and purposes, as if the same had been herein repeated and especially enacted with reference to the said duties hereby granted." In the schedule to stat. 55 G. 3. c. 184., duties are imposed under the head "Conveyance, whether grant, disposition, lease, assignment, transfer, release, renunciation, or of any other kind or description whatsoever, upon the sale of any lands," &c., on the deed. "Where the purchase or consideration money

"therein or thereupon expressed shall not

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"And where the same shall amount to 20%. and

"not to 50%.

"And where the same shall amount to 50%. and

"not to 150%.

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"And where the same shall amount to 150%.

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and progressively higher duties ad valorem.
Under the head "Exchange," "Any deed, whereby any
lands or other hereditaments or heritable subjects in
England or Scotland shall be conveyed, or any copyhold
or customary lands or hereditaments in England shall be
covenanted to be surrendered in exchange for other
lands or hereditaments or heritable subjects;"

"If no sum of money, or only a sum under

66

"3007. shall be paid or agreed to be paid

"for equality of exchange; the ordinary

"duty of

17. 15s. Od."

"And if a sum of (the same ad valorem duty as

3002, or upwards shall

be paid or agreed to be paid for equality of exchange

for a conveyance on the sale of

lands for a sum of money equal

to the sum so paid or agreed to
be paid."

There can be no doubt that an ad valorem stamp

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duty was payable in respect of the deed in the present
case, as it was an exchange where more than 300l. was
agreed to be paid for equality of exchange. The parties
are made liable to revenue penalties in consequence of
their having improperly stamped a deed: the deed itself
is not void; Robinson v. Macdonnell (a), Doe dem. Kettle
v. Lewis (b). Neither could the payment of the con-
sideration be resisted merely on the ground that the
deed was ill stamped; Mann v. Lent (c). It might be
otherwise if it were shewn that it was part of the
bargain that the statute should be violated; Forster v.
Taylor (d). But nothing is alleged, in this plea, incon-
sistent with the supposition that the plaintiff innocently
executed the deed which her brother the defendant
caused to be drawn up in the way that suited his
purpose. The question therefore is reduced to that of
the effect of stat. 48 G. 3. c. 149. s. 24. The section
does not apply to all deeds where there is an ad valorem
duty, but only to those in which the consideration
money is by that act directed to be set forth, that is in
case of a sale. Assuming that the effect of stat. 55 G. 3.
c. 184. s. 8. is to make sect. 24 of stat. 48 G. 3. c. 149.
applicable to the new duties imposed in the schedule to
stat. 55 G. 3. c. 184., still it would only apply where the
duty was imposed in respect of a sale. And it is clear
that the Legislature did not, either in the one statute or
the other, consider an exchange, with money paid for
equality of partition, as a sale.
the schedule to stat. 48 G. 3. c.

an unvarying sum of 17. 10s. Od.;

The duty imposed by 149. on an exchange is which is greater than

the progressive ad valorem duty imposed by that act on

(a) 5 M. & S. 228.
(c) 10 B. & C. 877.

(b) 10 B. & C. 673.

(d) 5 B. & Ad. 887.

a sale where the price is less than 1507.; and smaller than that where the price is more than 300l. And in the schedule to stat. 55 G. 3. c. 184. the ad valorem duty on the sum paid for equality of exchange does not begin till that sum amounts to 3007.; but the duty on an exchange, where the sum given for equality of exchange is below 3007., is an unvarying sum of 17. 15s. Od., which is from 5s. to 25s. more than the duties imposed on sales for sums below 1507. It is clear that the word "sale" is used in both statutes in its popular sense; Denn dem. Manifold v. Diamond (a), Massy v. Nanney (b), Blandy v. Herbert (c). The defendant may rely upon Gingell v. Purkins (d), where a lease, granted in consideration of a premium, was held within this enactment, so as to entitle the lessee to set off against the rent the premium which was not expressed in the instrument. But that case proceeded on the ground that the word "lease" is expressly inserted, under the title "Conveyance," in the schedule to stat. 55 G. 3. c. 184.

Lastly; supposing the defendant right in his construction of the statute, and that he is entitled to recover back the price, namely 6607, that cannot be a bar to this action, where the legal debt is 16007.; and the amount which the plaintiff would be entitled to levy, if she obtains judgment, consists not only of 6607., but also of an arrear of interest due before the conveyance impeached was executed.

Willes, contrà. It is not to be disputed that the price of the estate may be recovered though the deed is ill stamped, if the effect of the statute is merely to

(a) 4 B. & C. 243.
(c) 9 B. & C. 396.

(b) 3 New Ca. 478.
(d) 4 Exch. 720.

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Thus

impose revenue penalties; Mann v. Lent (a). But stat.
48 G. 3. c. 149. s. 24. goes much farther; it expressly
enacts that the consideration money shall not be re-
tained by the seller. If this transaction is within that
enactment, the bond cannot be enforced without directly
effecting that which the Legislature meant to forbid ;
and, as whatever sum is recovered in this action might
immediately be recovered back in an action on that
enactment, this plea is good in substance on the prin-
ciple of avoiding circuity of action; Connop v. Levy (b).
Stat. 48 G. 3. c. 149. s. 24. is incorporated in stat. 55 G. 3.
c. 184. by sect. 8, so as to apply to ad valorem duties
granted for the first time by that latter statute.
it applies to conveyances by lease, though that word
was not in the schedule to stat. 48 G. 3. c. 149., title
Conveyance;" Attorney General v. Brown (c). The
enactment is, according to the authorities, to apply only
to sales but that word is to be understood in the sense
which it bears amongst conveyancers, not in the popular
sense of the word. No person in popular language
would call a lease, granted for rent and a premium, a
sale of the lands; yet the statute applies to such a
transaction; Attorney General v. Brown (c), Gingell v.
Purkins (d), Doe dem. Kettle v. Lewis (e). Such a trans-
action as the present is, in accurate language, an ex-
change of part of the interest of the plaintiff, and a sale
of the rest.

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Unthank was heard in reply.

(a) 10 B. & C. 877.

(c) 3 Exch. 662.
(e) 10 B. & C. 673.

Cur. adv. vult.

(b) 11 Q. B. 769.

(d) 4 Exch. 720.

Lord CAMPBELL C. J., on a subsequent day in this term (Nov. 20), delivered the judgment of the Court.

This was an action of debt upon a bond, which in form was a common money bond, with a condition that it should be void upon payment of 800%. and interest at a time specified. The defendant by his plea set out a deed of partition of certain real property between the plaintiff and the defendant and other persons; by which their several shares were ascertained and divided, and upon the face of which deed a nominal consideration only for the plaintiff's becoming a party to it was stated; and the defendant alleged that the plaintiff was in fact to receive 660% for equality of partition, which with an arrear of interest made up the sum of 800%.; and that the real consideration for the plaintiff's agreeing to the partition and executing the deed was the sum of 6607., which ought to have been stated as the consideration in the deed; and that the bond was given to secure the payment of that sum and interest, contrary to the statute. To this plea the plaintiff demurred: and upon the argument two points were made on the part of the defendant: first, that the deed of partition was an instrument upon which, under stat. 48 G. 3. c. 149. s. 22. (incorporated for this purpose with stat. 55 G. 3. c. 184.), the true consideration ought to have been expressed; and, secondly, that, if that were so, the plaintiff could not recover upon the bond, which was given to secure the payment of the true consideration; inasmuch as, if it were paid, it might be recovered back again under stat. 48 G. 3. c. 149. s. 24. Upon this second point, however, it is unnecessary for us to give any opinion; as we do not think that the provisions of stat. 48 G. 3. c. 149. ss. 22. 24. are applicable to the transaction

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