1855. In Re ATTENBOROUGH and THE COMMISSIONERS OF Nov. 30. instrument THIS was a case stated by the Commissioners of Inland The following Revenue, pursuant to the 13 & 14 Vict. c. 97, to enable R. was held not to require a Attenborough to appeal to this Court against the determin- to mortgage ation of the Commissioners as to the stamp duty chargeable stamp: "I on the following instrument: "11, Greek-street, Soho. the "I have this day deposited with Mr. Robert Attenborough the following goods, viz. tea and coffee set, waiter, milk-pot, &c., to be held by him as a security for the payment of the sum of 1607., this day lent by him to me, together with interest thereon from the date hereof, after rate of fifteen per cent. per annum till payment: and should such sum of 160l. not be paid by me to the said Robert Attenborough by the 25th day of March next, I do hereby authorise and empower the said Robert Attenborough, his executors, &c., to sell or dispose of the said articles, or any of them, either by public sale or private contract, and out of the proceeds thereof to pay the expenses of and incidental to such sale, and retain the said sum of 160l. and interest thereon after the rate aforesaid until the time of such retainer, or so much or such part thereof respectively as shall remain unpaid. Dated this 28th day of November, 1854. "H. RADCLIFFE." The said Robert Attenborough, by his attorney, presented to the Commissioners of Inland Revenue the said instrument unstamped, and desired to have their opinion as to the stamp duty with which the same was chargeable; and the Commissioners being of opinion that the instrument was chargeable under the 13 & 14 Vict. c. 97, with the ad have this day deposited with A. the following goods, viz. tea and coffee set, &c., to be held by him as a security for the payment of 160l., this day lent to me, together and should with interest; such sum of 1607. not be paid by me to 25th of March A., by the next, I hereby authorise and empower him to sell and said articles, dispose of the and out of the proceeds thereof to pay the the sale, and expenses of retain the said sum of 1607. and interest thereon." 1855. In re ATTENBOROUGH. valorem duty of 5s. as a mortgage of personal property made as a security for the payment of 160l. advanced and lent at that time, they assessed and charged the said sum of 58. as such duty. The question for the opinion of the Court is, whether the said instrument is liable to ad valorem mortgage duty, and if not, to what other stamp duty the same is liable. Phipson for the appellant.-The instrument in question is not a mortgage, but a mere memorandum of the deposit of goods, with a superadded power of sale in a certain event. Harris v. Birch (a) is an authority in point. There a firm, desiring an advance of money, wrote to the proposed lender, stating that, in consideration of his accepting their draft, they handed to him therewith the bill of lading and policy of insurance for wines expected to arrive, and they engaged to land and warehouse the wines to be held at his disposal; and that document was held not to require a mortgage stamp. This case is not distinguishable from Harris v. Birch, except that there the agreement contained no power of sale. That circumstance, however, is immaterial: the question depends on the character of the transaction,-whether it places the depository in the position of a mortgagee or a pledgee. The distinction between a mortgage and a pledge is well established. In the case of a mortgage, the absolute property in the goods is transferred to the mortgagee, defeasible upon repayment of the money advanced; but a pledge only gives to the pledgee a special property, subject to which the pawnor still retains his right of property: Franklin v. Neate (b). This is the case of a mere pledge. Pigott for the Crown.-This instrument transfers to the lender the property in the goods in trust to sell them in (a) 9 M. & W. 591. (b) 13 M. & W. 481. default of payment, and is therefore a mortgage. The 13 & 14 Vict. c. 97, Sched. tit. "Mortgage," has the words, "conditional sale by way of mortgage." In Horsfall v. Hey (a), a memorandum that T. has sold to G. all the goods, stock in trade, and fixtures, in a certain shop," was held to require an ad valorem stamp as a conveyance. [Parke, B.-If the words had been, "I have this day conveyed," &c. or "made over," &c., the case might have been different, but there are no words capable of passing more than a special property in the goods.] In Caldwell v. Dawson (b) an assignment of a policy of assurance as a security for a debt, with a proviso for redemption on payment, was held to require a mortgage stamp. PARKE, B.-The case of Harris v. Birch decided that a deposit of goods, or any document relating to goods, as a bill of lading or a dock warrant, is not a mortgage within the 55 Geo. 3, c. 185. That decision is confirmed by the principle laid down in the case of Franklin v. Neate. It is true that this case goes somewhat further than Harris v. Birch, since the instrument contains a power of sale; but that does not render it a conveyance by way of mortgage. ALDERSON, B., and PLATT, B., concurred. (a) 2 Exch. 778. Judgment for the appellant. 1855. In re ATTENBOROUGH. 1855. Dec. 1. An arbitrator appointed un der the 68th section of the "Lands Clauses Consolidation Act, 1854," has no jurisdiction adjudicate to In the Matter of an Arbitration between JEREMIAH BYLES and THE IPSWICH DOCK COMMISSIONERS. THIS was a rule, calling on the Ipswich Dock Commissioners to shew cause why an award made in this case should not be set aside, or referred back to the arbitrator. It appeared from the affidavits, that the commissioners were acting in execution of the 45 Geo. 3, c. 101, and other Acts, for improving the port of Ipswich. By the 1 Vict. upon any col- c. lxxiv. s. 17, they were empowered to make on a part of lateral matter the river Orwell, described on a plan, a navigable dock, and also a new cut, channel, or river, quays, &c. The plan included certain property belonging to Nathaniel Byles, the father of Jeremiah Byles. affecting the claim to com pensation, but only to deter mine the amount of damage. When the commissioners were about to make the new cut, an agreement, dated the 16th of July, 1841, was entered into between one of the commissioners on behalf of all, and Nathaniel Byles. By this agreement, after reciting "that, in order to avoid the injury which would have been occasioned to the property of N. Byles, lying on the north side of the river Orwell, in the parish, &c., in case the upper embankment of the new dock had been constructed, as it was designed, in the exact original line laid down in the plan and specification of the works to be done under the authority of the said Act; and that, in order to avoid all claim to compensation for such injury, the commissioners had agreed to construct the upper embankment of the dock on the line and in form and manner delineated and described on a plan thereunto annexed;" N. Byles agreed to sell to the commissioners a triangular-shaped piece of land (therein described) on the south side of the river Orwell; and the commissioners agreed, as soon as they were put in possession of the said piece of land, to pay 500l. to N. Byles; and, in order to secure to him an equivalent in land for the triangular piece, the commissioners agreed to procure for him a piece of land contiguous to it. They also agreed that they would, in a good and substantial manner, and at their own expense, erect a new wall or quay-front along the whole line of frontage of N. Byles' premises (as described in the agreement). This agreement was performed, and the wall built. On the 17th of June, 1852, the 15 Vict. c. cxvi. passed, to consolidate and amend the Acts relating to the Ipswich Dock, by the 13th section of which "The Lands Clauses Consolidation Act, 1845," was incorporated with that Act. In December, 1852, Jeremiah Byles complained to the commissioners that the foundation of the wall and quay was undermined by the water of the river Orwell, and that the damage was occasioned by the execution of their works. On the 12th of May, 1853, J. Byles served the commissioners with a notice, under the 68th section of the Lands Clauses Consolidation Act, 1845, claiming compensation for the damage, and stating his desire to have it settled by arbitration. The commissioners having declined to appoint an arbitrator, on the 10th of June, 1853, J. Byles appointed Mr. Beardmore the arbitrator for both parties. On the 27th of December, 1853, Mr. Beardmore awarded 'that the sum of 3801. should be paid to J. Byles by the commissioners, as and for full compensation to J. Byles for the damage sustained by him by reason of certain works of the commissioners having damaged, undermined, injured, and injuriously affected a certain quay, messuage, &c., the property of J. Byles;" and the arbitrator also adjudged that the costs of the reference should be borne by the commissioners. On the 2nd of June, 1854, a rule was obtained, on behalf of J. Byles, calling on the commissioners to shew cause why they should not pay the sums awarded. Cause was shewn on the 14th of June, when it was ordered, by con 1855. In re BYLES. |