#### Joseph Sewall, Treasurer, &c. *versus*Thomas K. Jones *et al.*

The *St,*1822, *c.*87, imposing a duty on sales by auction, does not extend to a lease by auction.

But, *it seems,*it does embrace a transfer by auction, of an existing leasehold estate.

This was an action of debt brought by the treasurer of the Commonwealth, upon a bond given by the defendants, as auc tioneers, in pursuance of the third section of *St. 1822, c.*87, imposing a duty upon sales by auction. The breach alleged was, that the defendants had sold by auction certain property belonging to the New England bank, and had not accounted for the duties payable upon such sale.

The facts as agreed by the parties, were, that on the 10th of October, 1823, the defendants j as auctioneers, were employed by the New England bank, who were owners in fee of certain tenements, to let the same by auction for the term of five years from the 1st of November then ensuing. The bidding was upon the annual rent, viz. who would give most by the year for the tenements. Eliphalet Williams offered $ 1950 *per*annum, and ‘was the highest bidder ; whereupon a lease was executed by indenture in common form between the bank of the one part and Williams, together with one Wright, of the other part, with a clause, reserving to the lessors the right of re-entry for nonpayment of rent and taxes and for any strip or waste.

It was submitted to the Court to determine whether any, and if any, what sum, was payable by the defendants by way of auction tax, under the circumstances above stated.

The statute in question provides, that “ all real and personal estate which shall at any time be exposed to sale at public auction or vendue,” with certain exceptions, “ shall be subject to *420the following duties, each and every time such real or personal estate may be struck off, sold, or bought in, viz :— all personal estate, excepting ships and vessels, one dollar for every hundred dollars of the value for which the same shall be sold ,* and all real estate, ships and vessels, at fifty cents for every hundred dollars,” &c.

*Davis*(Solicitor-General), for the plaintiff,

contended that this was a sale of a chattel real; which is a sale of personal estate. *Ex parte Gay,*5 Mass. R. 419 ; *Chapman*v. *Gray,*15 Mass. R. 445.

*Shaw,*for the defendants,

maintained, 1. that the defendants were not liable at all in this action ; and 2. if they were, it was only for the duty payable on a sale of real estate. The defend ants were employed, not to transfer an existing leasehold estate,' which is an assignable interest and a chattel interest, but tri make a lease, which creates a chattel interest. It is a perver sion of language to say that a lease is a sale. A sale is a transmutation of property in consideration of some price. See the definition of *sale*in Jacobs’ Law Diet. *voc. Sale ;*Long, 1 , Ross, 1 ; 2 Bl. Com. 446. It is manifest that *sale,*in this statute, is to be taken according to the definition in these authorities, for the duty is to be calculated on the *price.*In a sale, money must be paid at the time, or a debt must arise ; but a covenant to pay rent is not a debt. Holding under the lease creates a debt; not however until the time for payment has arrived. *Wood*v. *Partridge,*11 Mass. R. 493. On what debt is this tax to be computed ? The plaintiff demands one percent on $9750, the aggregate sum of the rents for the five years, but the consequences which would result from applying this rule to long leases with a variety of contingencies, show that it cannot be sound. Suppose a lease for 99 years or 999 ; or for 21 years, with liberty to either party to terminate it at the end of 7 and 14 years ; or a lease with covenants for renewal. In the present case the contract might terminate at any time on the default of the lessee, and no rent might become due. The statute supposes that the auctioneer will receive the proceeds of the sale, or if a credit is given, that he will receive tbe security as a lien for the duty ; which is inconsistent with a lease. , ■

*421*±Javis,*in reply,

said there was an exchange of property. A part is carved out of the freehold or fee of the owners and sold by the defendants.

Parker C. J.

delivered the opinion of the Court. Statutes which impose restrictions upon trade or common occupations, or which levy an excise or tax upon them, must be construed strictly.

The transaction for which the tax is claimed in this suit, upon the bond, is not a sale of real or personal estate. The title to the estate was not to be affected by the sale or any proceedings under it. All that was offered to be sold and was sold, was an engagement or contract of the bank to lease the estate for five years. It was only, in fact, to ascertain the amount of rent under the form of a sale. The object of the legislature undoubtedly was, to lay the tax on the transfer of property. Such are the words and such is the spirit of the act; and such the condition of the bond. And this construction is fortified by the manner in which the tax is to be estimated, to nil, upon the *value*of the estate *sold,*whether real or personal. One per cent upon the capital raised by the sale of an estate, is a very different thing from one per cent upon the annual profit or rent. It seems certain, that if it had been intended to embrace within the terms *sales of real and personal estate, ships or vessels,*any thing short of a transfer of the property, a different provision would have been made for estimating the amount of the tax.

If an existing lease were sold by auction, the tax might be due within the terms of the act and the condition of the bond ; for in that case, estate, real or personal, would be sold. But here there is nothing sold by auction ; the estate not existing which it was the object of the sale to fix a price for. This may be thought a close construction of the statute, but we are to suppose the legislature intended nothing beyond what their language, in fair legal construction, will indicate. If the terms of their enactment have not embraced their object, the power is with them, by explanatory or additional acts, to extend them.1

*Judgment for defendants.*

1

 The statute respecting auction sales is now extended so as to embrace the above case. Revised Slat. *c.*9, § 6,7.