1832.

In re

LEY.

have been of opinion, that as the legislature had in the previous act defined what is meant by the term "legacy," CHOLMONDE it would be considered that the legislature used that term (the act being passed in pari materiâ) in the same sense and to the same extent in which it had been used in the previous act; and it appears to me obvious, that this must have been the meaning of the legislature, because the object of the act of 44 G. 3. was to consolidate the regulations and provisions of the previous act, and to consolidate the duties. There is no intimation whatever in the 44 G. 3. that there was any intention to reduce the duties; that leads therefore, I think, fairly to the conclusion, that the legislature could not have intended, under the term "legacy," to give a more limited meaning to that term than it had in the 36 G. 3.

There is another circumstance also which leads to the same conclusion, namely, that by the 45 G. 3. c. 28. which was passed the following year, the duty is given payable upon legacies out of any real or personal estate of the testator. In the 45 G. 3. there is a clause similar to the seventh section of 36 G. 3. c. 52. defining what the legislature means by the term "legacies;" and in that description it states, that any gift payable out of the personal estate, or out of any personal estate which the testator has the power of disposing of, shall be considered a "legacy" within the meaning of that act. So that under the 36 G. 3. and under the 45 G. 3. the legislature has distinctly defined what is meant by the term "legacy;" and it seems impossible to come to a conclusion that in the intermediate act of the 44 G. 3. it intended to give a different interpretation to the term, or that it should have less effect than in the previous and subsequent acts. I should think, therefore, it is perfectly clear under the 44 G. 3. that the term "legacy," meaning any legacy payable out of the personal estate

1832.

In re

LEY.

of the party dead, would not only extend to a legacy properly payable out of that personal estate, but to a legacy payable out of any property which the party CHOLMONDEhad the power of disposing of by will. If that be so, the language of 48 G. 3. is the same in substance as that of 44 G. 3., and the language of the 55 G. 3. is the same as that of 48 G. 3.

Taking all the acts, therefore, together applicable to the same subject, and passed in pari materiâ, the legislature, in the 36 G. 3. and the 45 G. 3. having described and defined what they meant by a "legacy," and having given no such description as to the intermediate act of 44 G. 3., but it being obvious what their meaning was with respect to that act, it seems impossible to come to a conclusion that they meant to use that term in a more limited sense in the 48 G. 3. and the 55 G. 3. If that be the true meaning of that act of parliament, it will follow that under 55 G. 3. c. 184. the duty would be payable not only upon a legacy payable out of the personal estate, strictly so considered, of the testator, but out of any personal estate which the testator had the power of disposing of as he or she may think proper. That would apply to the present

case.

We are of opinion, therefore, that, considering all these acts together, the duty is payable in respect of this property which was taken by the appointees under the will of Mrs. Cholmondeley.

Order made absolute.

1832.

Declaration

stated (in four

Earl FALMOUTH against THOMAS.

ASSUMPSIT. The first count of the declaration

counts) that plaintiff was possessed of a farm on which were certain crops then growing, and on which the plaintiff had bestowed certain work and labour, and used certain materials in making the same ready for tillage; and of which work and labour, plaintiff, at the time of making the promise in the declaration, had not derived the benefit-That in consideration that the plaintiff would let the farm to the defendant for 14 years, the defendant undertook to take the said crops and pay for them, and for the said work, labour and materials, according to a valuation to be made by certain persons. Averments-that plaintiff let the farm accordingly, and left the said crops so growing and being thereonthat the defendant took possession of the farm and crops, and had the benefit of the work and materials, and took the crops to his own use-that the valuation was made at 1471.-that defendant was requested but did not pay.

stated, that the plaintiff, before and at the time of

the making of the promise and undertaking of the de

Plea, that the crops and the benefit of the work &c. were not excepted or reserved out of the letting or agreement to let, and that no agreement in writing in respect of the causes of action in the above counts mentioned, or any memorandum or note thereof, wherein the said promises of the said defendant in those counts were stated or shown, was in writing signed by the defendant, or any other person thereunto by him lawfully authorized.

Held on demurrer, that as by the contract the defendant was to have had the land as well as the crops then growing on it, and as the labour and materials were so incorporated with the land as to be inseparable from it-the rights to the crops and to the benefit of the work and labour were both of them an interest in the land within the statute of frauds, 29 Car. 2. c. 3. s. 4.

Another count stated a promise to manage a farm in a good and husbandlike manner, and according to the custom of the country. The breach was, that he did not manage &c. (in the words of the promise), but on the contrary managed it in a bad and unhusbandlike manner, contrary to the custom of the country where the farm was-Semble on special demurrer that the breach was sufficiently assigned, but amendment by inserting the particular facts was recommended.

Indebitatus assumpsit count for crops bargained and sold, and under and by virtue of such bargain and sale accepted and taken, and had and received and cut down by the defendant. Plea, that the crops, at the time of the bargain and sale, were growing on and affixed to certain lands belonging to and in possession of plaintiff; and that while they were so growing and affixed, and just before the said bargain and sale, there was a treaty on foot between plaintiff and defendant, by which it was proposed that plaintiff should let the said lands to defendant for 14 years, and that defendant should take the lands for that term, and therewith should take the said crops that plaintiff and defendant assented to the treaty, and that in order to carry its terms into execution the supposed bargain and sale was verbally contracted between them, but that there was no agreement in writing, or any memorandum or note thereof.

Held (on general demurrer to the plea), that the crops were at the time of the bargain and sale an interest in the land, and within the statute of frauds; so that though the defendant had had the benefit of them, he was not obliged to pay for them on the terms of that bargain and sale, but on a quantum meruit only.

Indebitatus assumpsit count for work and labour done and materials used by plaintiff in and about preparing for tillage certain lands afterwards let by plaintiff to defendant at his request. Plea in substance like the last, and same point held à fortiori.

fendant thereinafter next mentioned, had been and was lawfully possessed of and entitled to a certain farm, lands and premises, upon which said farm, lands and premises certain crops of corn and turnips of him the plaintiff, of great value, were then growing and being, and upon divers parts of which said farm, lands and premises, he the plaintiff had before then by his servants done, performed and bestowed certain work and labour, and used and expended certain materials in and about the preparing and making the same ready for tillage, of which said work and labour and materials he the plaintiff, at the time of the making of the said promise and undertaking of the defendant hereinafter next mentioned, had not derived the benefit, to wit, at &c., and thereupon heretofore, to wit, on &c., at &c., in consideration that the plaintiff, at the special instance and request of the defendant, would let to him the said defendant the said farm, lands and premises, with the appurtenances, excepting and reserving as in that behalf agreed upon, for a certain term, to wit, the term of 14 years, from 29th September 1827, and upon certain terms in that behalf agreed upon, he the defendant undertook and then and there promised the plaintiff to take the said growing crops, and to pay and allow him, the plaintiff, for the same,

1832.

Earl FALMOUTH

v.

THOMAS.

Indebitatus assumpsit count on an account stated. Plea, that before the taking of the account there was a verbal agreement for the sale of certain crops growing on the plaintiff's land, and for work, labour, and materials done and used in preparing the land for tillage-that there was a treaty for the plaintiff's letting and the defendant's taking the land for 14 years, to which defendant assented—that the money so to be paid for the crops, &c. was that concerning which the account was stated— and that there was no agreement in writing, or any note thereof.

Replication, that before the account was stated defendant had mown the crops and taken them to his own use, and had had and received the amount of the work and labour and materials.

Rejoinder, traversing the cutting the crops and receipt of the amount of the work and labour &c. before the stating the account,

General demurrer-Held that the contract in the pleadings was within 29 Car. 2. c. S., and not being in writing could not be recovered upon.

Where there are cross-demurrers to the declaration and to the pleas, the defendant's counsel begins and has the reply.

1832.

Earl FALMOUTH

V.

THOMAS.

and for the said work and labour and materials, according to a valuation thereof to be made by certain persons, to wit, a certain person to be appointed by and on behalf of the plaintiff, and a certain other person to be appointed by and on behalf of the defendant, to value the same: and the plaintiff further said, that he confiding &c., did afterwards let to the defendant the said farm, lands and premises, with the appurtenances, for the said term, and upon the terms aforesaid, excepting and reserving as in that behalf agreed upon, and did leave on the said premises the said crops so growing and being thereon as aforesaid, and that the said defendant did then and there take possession of the said farm, lands and premises, and of the said crops so then and there growing thereon as aforesaid, and that the defendant had and received the benefit of the said work and labour and materials, and had taken the said crops to his own use, to wit, at &c.: And the said plaintiff further said, that afterwards, to wit, on &c., the said growing crops, work, labour and materials were fairly valued by one J. D., a person for that purpose duly appointed by and on the behalf of the said plaintiff, and one W. P., a person for that purpose duly appointed by and on the part and behalf of the said defendant, at a certain sum of money, to wit, 1477. 13s. Of all which said several premises the said defendant afterwards, to wit, on &c., at &c., had notice, and was then and there requested to pay the said sum of 1477. 13s. to the said plaintiff.

The breach stated that that sum was not paid.

The second count, after repeating the first count as far as the valuation, and the notice to the defendant of the premises, proceeded thus:-And the said plaintiff further saith, that after such valuation had been so made, to wit, on &c., at &c., it was agreed by and between the plaintiff and the defendant that the said