16 Law Journ. (Exch.) N. S. 173. (a) In that case, a letter of allot173.(a) ment of shares in a railway company was held not to require a stamp, the contract not being complete until acceptance of the allotment, though made in answer to an application for shares. The second letter merely contains a notice for determining the then current engagement. The third letter simply renews the original proposal. There was no contract between the parties until that proposal was acceded to, either expressly or tacitly. [MAULE, J.-Is there not a case in the Exchequer Chamber in which a *letter of allotment of railway shares was *628] held to be receivable in evidence without a stamp?] That is the case of Moore v. Garwood, 19 Law Journ. (Exch.) N. S. 15.

Again, to make a stamp necessary, the instrument must, upon the face of it, refer to a matter exceeding the value of 201. The engagement might last only a few weeks; it might be put an end to at any time by giving a week's notice.

With respect to that part of the rule which prays for the entry of a suggestion under the County Courts Act, the first objection is, that the affidavit is insufficient. Where an affidavit describes the deponent as a party to the suit, it may not be necessary to give the addition of the deponent, but the place of residence, here omitted, should appear. In Sharpe v. Johnson, 4 Dowl. P. C. 324, S. C. 2 New Cases, 246 (E. C. L. R. vol. 29), 2 Scott, 407 (E. C. L. R. vol. 30), 1 Hodges, 298. TINDAL, C. J., observes: «The object of that rule (6) was to make the opposite party acquainted with the residence of the deponent; but I am of opinion that it does not apply to the case of a prisoner. He is, in effect, on the floor of the court; and it would be absurd to require him to state his residence, when the plaintiff, by opposing his discharge. must know where he is." [MAULE, J.-The object of the rule is to identify parties. Is it not the general practice merely to describe the plaintiff and the defendant as "the above-named plaintiff and defendant?" What rule is there which requires a plaintiff, every time he makes an affidavit, to show where he resides? The learned judge referred to the case of Shirer v. Walker, 2 M. & G. 917 (E. C. L. R. vol. 40), 3 Scott, N. R. 255.]

This is not a case in which the plaintiff might have brought his action in the county court. In those courts, a plea in abatement for nonjoinder is not allowed. At the time the action was commenced, *629] it was brought for more than 207. The jury gave him 121. beyond the 15l. 6s. 8d. With regard to the latter sum, the plaintiff's right of action in this court is suspended until the co-debtor is joined as a co-defendant. But by sect. 68 of 9 & 10 Vict. c. 95, a demand is recoverable in the county court without serving or suing a party jointly

(a) The application in that case was for twenty shares in the Birmingham, West Bromwich, &c., Junction Railway, the letter of allotment gave ten only, and imposed special terms, to which there had been no allusion in the plaintiff's letter of application.

(b) Reg. Gen. H. T. 2 W. 4, s. 5.

answerable. The debt, therefore, to be sued for in the county court, would have exceeded 201. [CRESSWELL, J.-How do we know that the debt is so large as you suggest?] The record shows an admission of a debt of 157. 6s. 8d.; the plea alleges only matter in delay of payment. [CRESSWELL, J.-Does the plea admit the debt?] It does. (a) [MAUle, J.-The defendant now says you should have sued me and my partner for 151. 68. 8d., and myself alone for 117. 58. 8d.] If the defendant had not pleaded in abatement, it is clear the plaintiff must have recovered more than 207. That plea is not in avoidance of the debt, but in delay of the remedy.

Another objection to this application is this. The 58th section of 9 & 10 Vict. c. 95, enacts: "That all pleas of personal actions, where the debt or damage claimed is not more than 201., whether on balance of account or otherwise, may be holden in the county *court." There is no decision upon this point in the superior courts ;(b) [*630 but in the county courts it has been held, that the balance of account for which a plaint will lie in the county court must be a balance struck, and not a balance to be ascertained. Suppose a builder's bill to be reduced by payments below 201. To recover anything, the plaintiff might be required to prove work done to the amount of several hundreds of pounds. It is otherwise when a balance has been struck; in which case it is not necessary to go beyond proof of the striking of The balance. The title of the act is, "for the more easy recovery of all debts and demands."

Hawkins and Prentice, contrà.-If the agreement appear, primâ freie, to relate to a matter of the value of 201., a stamp is necessary. flere, the agreement was an agreement for a year at 21. a week, though the amount might be reduced by the notice to less than 201. [MAULE, J.-Is there any authority for that?] Shephard v. Whible, 8 Carr. & 534 (E. C. L. R. vol. 34), shows that it is not necessary that the ntract should ultimately operate as an agreement for more than 207. Here, the parties might, if they thought proper, have reduced the amount; but, until that was done, the yearly agreement remained. [MAULE, J., referred to Laythoarp v. Bryant, 2 New Cases, 735 (E. C. L. R. vol. 29), 3 Scott, 238 (E. C. L. R. vol. 36), 2 Hodges, 25.(c)].

(a) As to this point, see Goode v. Lasbury, 1 C. M. & R. 254,† S. C. per nom. Gould v. Rasperry, 2 Dowl. P. C. 707. In that case it was said, arguendo, that, "A plea in abatement need not confess and avoid. The defendant is not bound to traverse or confess all the matters alleged. He has at that stage, nothing to do but to show that the plaintiff may have a better writ; and the judgment is not to be that the plaintiff is to recover or not on the allegations upon the record, but that the writ be quashed, or that the defendant answer over." That is true with respect to a judgment on demurrer; but if in an action of debt, issue be joined upon a plea in abatement, and that issue is found for the plaintiff, the judgment is quod recuperet. As there is in such a ease no verdict finding a debt, this judgment would appear to rest upon an express or implied confession of the debt demanded.

(6) Post, 432, 433.

(e) In that case it was held, that a contract for the sale of an interest in land, signed by the purchaser only, was, as against him, a sufficient note or memorandum of the agreement, to satisfy

*The letter of 21st April is an agreement. [MAULE, J.*631] What is it in answer to? It may be that the terms were proposed by parol, or that the letter referred to had a stamp. You must show, not merely that the writing may have been one that required a stamp, but that it did require one.] Webb v. Spicer, 18 Law Journ. Q. B., 142, shows that an agreement in writing, if acted upon, need not be signed. The judgment in that case was reversed in error, but upon another ground. [MAULE, J.-There the writing did purport to be the agreement of the parties.] It is otherwise if it appear to be merely an offer. *[CRESSWELL, J.-Suppose parties talk over the terms *632] of an agreement in the morning, and in the afternoon one of them writes: "I agree to the terms we talked over in the morning." Would that be an agreement in writing? MAULE, J.-The difficulty here is, that the letter of the 21st April says: "I have received your letter, and, on reconsideration, will give you the same terms, 21. per week, for the summer season." That might be understood as importing that there was a letter, or as inferring something substituted for the letter, or that the letter is necessarily part of the agreement. You say that that letter should have been stamped. CRESSWELL, J.-Suppose the plaintiff had never served the defendant for the summer season, and she had brought her action for a breach of contract, could she have recovered?] She must have shown that Hudspeth assented; and that assent might have been by parol or by act done.

The objection to the affidavit is answered by the known practice. [MAULE, J., referred to Moore v. Garwood, 19 Law Journ. (Exch.) N.

the requirement of the fourth section of the Statute of Frauds, on the ground that the signature of the vendor was not essential to the completeness of the contract when the action was against the vendee.

The Statute of Frauds, every line of which has been said (first possibly by some practitioner on laying down his fee-book) to be worth a ubsidy, is loosely worded; as if the rough draft of the bill had been transferred at once to the statute roll. The fourth section speaks of "any tract or sale of any land, &c.," meaning, perhaps, "any contract for the sale." The words "the parties to be charged," were probably used by the framer of the bill, as equivalent to the words, "the parties chargeable," but in Laythoarp v. Bryant, and in many other cases, the courts, without assigning any reason for so doing, have rejected the words "to be" and have read the words "the party to be charged," as if they had been "the party actually charged in the action." It has even been held that the words "the parties to be charged," in the 17th section, mean not both parties, but the one party charged in the action.

In Laythoarp v. Bryant, TINDAL, C. J., says (2 New Cases, 745), "But then it is said, unless the defendant signs there is no mutuality. Whose fault is that? The defendant might have required the vendor's signature to the contract." It seems here to be intimated that the omission by the vendor, to comply with the requirements of the statute, was the fault, not of the party omitting, but of the party to be prejudiced by the omission, and that the defendant, before he ventured to become a purchaser, ought to have made himself master not only of the Statute of Frauds, but of the conflicting rulings in the courts of law and of equity upon its provisions, and that having done that, he should have shaped his course in strict accordance with these decisions, some of which it may be difficult to reconcile with justice or grammar. It is said that mutuality of agreement is sufficient without mutuality of remedy; but if agreements are to be construed with reference to the apparent or presumed intention of the parties, it seems to be allowable to doubt that it was the intention of the parties that one of them should bind himself whilst the other remained unbound. And see Walker v. Constable, 2 Esp. N. P. C. 659, 1 Bos. & Pull. 306; Ferrer . Oven, 1 Mann. & R. 223 (E. C. L. R. vol. 17).

S. 15, and Drant v. Brown, 3 B. & C. 665 (E. C. L. R. vol. 10), 5 D. & R. 582 (E. C. L. R. vol. 16).(a)]. Here, the letters were offered at the trial to prove the agreement. [MAULE, J.-That was the case also in Drant v. Brown. It is what always must be done when a written proposal is accepted by parol. It is only when the whole agreement is in writing that a stamp is necessary.]

The plaintiff has only recovered 117. 58. 8d. The debt owing by the defendant alone was, it is true, originally more than 207.; but it had been reduced below 201. by payments made before action brought. There was, therefore, nothing to prevent the plaintiff from suing the defendant in the county court for the amount which he has recovered, that being a debt distinct from *the sum due from the defendant and J. K. jointly. Walker v. Watson, 8 Bing. 414 (E. C. L. R. vol. 21), 1 Moore & Scott, 674 (E. C. L. R. vol. 28), Chitt. by Arch bold, 1401.

[*633

WILDE, C. J.-As to the plaintiff's first point, I have no doubt that the letter of the 21st April was a mere proposal, requiring some act to show assent, to constitute an agreement between the parties. It is clear that upon these letters alone no action could have been maintained.

As to the second point, the particulars delivered show that the action was brought to recover 221., reduced by payments to something about 12. This is, therefore, a case in which a verdict has been found for the plaintiff for a sum less than 201., entitling the plaintiff to have judgment for the sum recovered, and no costs, under the 129th section of the County Courts Act.(b)

MAULE, J.—I am of the same opinion. Here there was a proposal on the part of the defendant to pay 30s. per week. After this she offers 40s. a week. If the plaintiff chose to accept those terms, there would be an agreement. So if, without saying anything, he entered into her service, Drant v. Brown and Moore v. Garwood show that a proposal not accepted in writing, does not require a stamp. Here the true construction of the letters is, that this amounted merely to a proposal.

As to the suggestion, it appears that the plaintiff served the defendant alone a certain number of weeks at 21. per week, and had received as much as reduced *the claim to about 127. That was a demand for which the plaintiff might have clearly recovered in the county court.

[*634

(a) And see Bowen v. Fox, 2 M. & R. 167 (E. C. L. R. vol. 17); Bethell v. Blencowe, 3 M. & G. 119 (E. C. L. R. vol. 42), 3 Scott, N. R. 568; Chanter v. Dickinson, 5 M. & G. 253 (E. C. L. R. vol. 44).

(b) See Woodhams v. Newman, 7 C. B. 654 (E. C. L. R. vol. 62); Beswick v. Capper, ib. 669; Avards v. Rhodes, 22 Law Journ. (Exch.) N. S. 106. In the last case it is reported that the judge of the county court gave a judgment of nonsuit in a case in which he held, and correctly held, that he had no jurisdiction; but this point does not appear to have been argued or noticed. VOL. IX.-27

CRESSWELL, J., and TALFOURD, J., concurred.

Rule discharged as to the nonsuit, absolute as to the sugges tion.

CANNAN and GRIMLEY, Assignees of TANNER, a Bankrupt, v. HARTLEY.

A. is tenant to B. of rooms, for a term of years. Upon the bankruptcy of B., A. sends the key of the rooms to the office of the official assignee, where it is left with a clerk, who is told that it is the key of the rooms which A. had occupied. A. immediately quits possession, and no further communication takes place. Held, not to amount to a surrender by act or operation of law. (a)

ASSUMPSIT for six quarters' rent, accruing due to the plaintiffs, as assignees, on the 29th of September, 1849, on a demise of rooms, apartments, fixtures, chattels, and effects, by the bankrupt, for three years from 25th of March, 1847, with a count on an account stated with the plaintiffs as assignees.

*Plea, first, non assumpsit; secondly, to the first count, that *635] after the plaintiffs became assignees, and before any part of the money in the first count became due, to wit, on, &c., the defendant surrendered and yielded up to the plaintiffs as assignees the said rooms, apartments, fixtures, chattels, and effects, and the plaintiffs as assignees then accepted (b) of such surrender, and took possession of such rooms,

(a) A surrender by act and operation of law takes place when the tenant of a particular estate becomes party to an act having some other object than that of a surrender, but which object earnot be effected whilst the particular estate continues. See the cases collected, Com. Dig. tit. Surrender I.; 20 Vin. Abr. tit. Surrender F. G. In these cases the presumed surrender is also presumed to have preceded the act to which the tenant is party.

In some recent cases the courts, more and more unwilling to frustrate the intentions of the parties by a strict adherence to the Statute of Frauds, have gone beyond this, and have held that an act, the direct and the only operation of which is, to extinguish the particular estate, an act done ipsissimo animo sursumreddendi, and differing in nothing from an express verbal surrender except by its informality, may be treated as creating a surrender by act and operation of law-a construction tending to make the exception nearly co-extensive with the enactment, and recalling the times when as was the fate of the statute De Donis-an act of parliament might be repealed by judicial statuteness. An unqualified statement of this principle occurs in Lynch e. Lynch, 6 Irish Law Rep. 131, where BRADY, C. B., says, "A surrender by act and operation of law, I think, may properly be stated to be a surrender effected by the construction put by the courts on the acts of the parties, in order to give to those acts, the effect substantially intended by them." (b) This allegation appears to be unnecessary, since without any assent, either expressed er implied, on the part of the surrenderee, the estate vests in him by the mere act of the surrenderor, until actual dissent. See Thompson v. Leach, 2 Salk. 618, and the note (b) in the sixth edition Thompson v. Leach is also reported 3 Lev. 284, Lord Holt, 665, Carthew, 211, 250, 2 Mod. 290, 1 Shower, 296, Freeman, 502, 2 Ventr. 198. In that case it had been at first held in C. P., contrary to the opinion of VENTRIS, J., that assent on the part of the surrenderee, was necessary for the purpose of vesting the interest in him. And in Townson v. Tickell, 3 B. & Ald. 31 (E. C. L. R. vol. 5), the Court of King's Bench, not being aware that the judgment in Thompson v. Leach had been reversed, acted upon the authority of the original overruled decision. Vide 4 Mann. & R. 189, n.

See also Co. Litt. 113 a, Ibid. 114 b, Ibid. 245 a, b, Ibid. 337, n. 294, 2 New Cases, 70 (E. C. L. R. vol. 29), 2 Scott, 128 (E. C. L. R. vol. 30), 2 Swanst. 365, 371, 6 B. & C. 112 (E. C. L. R. vol. 13), 9 D. & R. 136 (E. C. L. R. vol. 22), 2 N. & M. 806, 3 N. & M. 775, n. (E. C. L. R. vol. 28), 5 N. & M. 6, 2 M. & G. 690, 691 (E. C. L. R. vol. 40), 6 M. & G. 456, n. (E. C. L. R. vol. 46), 1 Mylne & K. 195, Freeman by Smirke, 503, n.