thereon; and that Stephen Jones had thereupon delivered up to Elizabeth Jones the said conveyance of the equity of redemption.

The bill stated that Stephen Jones had regained possession of the said conveyance, and had also obtained the mortgage and other title-deeds of the property, and had entered into possession of part of the hereditaments, and refused to pay any groundrent for them, and had set up a claim to the inheritance in fee-simple in possession of all the hereditaments devised by the will of the said testator, alleging that he was entitled thereto by virtue of the conveyance of the equity of redemption thereof to him.

The bill contained the usual charge that the Defendant had in his possession the said deed of conveyance and other relevant documents, and prayed that, so far as necessary, the trusts of the testator's said will might be carried into execution under the direction of the Court; and that Stephen Jones might, if necessary, be decreed to execute a reconveyance of the equity of redemption in the said hereditaments to the uses and upon the trusts of the said will, or that the conveyance of the said equity of redemption to him as aforesaid might be delivered up to be cancelled; and for the delivery of the title-deeds to the Plaintiff.

Stephen Jones, by his answer, stated that the original mortgage was dated in 1835, and was for a term of 200 years; and that, in 1836, Lewis Jones, for valuable consideration, bona fide paid to him by Stephen Jones, and no part of which was ever returned, had sold and conveyed the hereditaments subject to the mortgage to Stephen Jones in fee-simple; and that in March 1838 Stephen Jones paid off the mortgage on his own account, and took a receipt from the cashier of the Dowlais Iron Company, which, so far as was [viii] material, was in the form stated in his answer; but that Stephen Jones forgot to ask for the deeds until April 1851, when, being reminded by his attorney that the deeds had not been recovered by him, he applied to the cashier of the company for them, who returned them to him, and at his request wrote upon the mortgage of 1835 a memorandum which, so far as was material, was to the effect stated in his answer. The Defendant denied that the loan by William Jones was to help the testator to pay off the mortgage, or that the conveyance of 1836 was left in the hands of the Defendant as a security, or that Elizabeth Jones paid him any money for the redemption of such security, as mentioned in the bill. He denied also that these hereditaments passed by the will of Lewis Jones, and claimed to be absolutely entitled to them.

The Defendant admitted that he had in his possession certain documents relating to matters in the bill mentioned, among which were the indenture of conveyance to himself, dated in 1836, which was impeached by the bill, and the receipt for £82 given to him by the Dowlais Company in 1838.

The matter having been adjourned from the Vice-Chancellor's Chambers,

Mr. Southgate moved for the production of this deed and the receipt, citing Attorney-General v. Thompson (8 Hare, 106).

Mr. Selwyn, contrà, insisted that, according to the Plaintiff's own statement, the deed of 1836 had been deposited with the Defendant by way of equitable mortgage, and therefore production could not be required: Crisp v. Platel (8 Beav. 62). THE VICE-CHANCELLOR reserved his judgment.

Nov. 21. THE VICE-CHANCELLOR Sir W. PAGE WOOD. This case is a little peculiar, but I think that the Plaintiff is entitled to have the production of these documents. The suit is for the purpose of impeaching the deed of 1836; and the bill states that the effect of that deed was not an absolute conveyance of the property which it comprised, but it was a deed by which the property was to be reserved to the original grantor. The defence to a suit of this description might have been that the Defendant was a mortgagee, although he first received the deed in a totally different character; and that, being a mortgagee [ix] who had advanced money, he had a right to insist upon his securities. If the deed of conveyance is not privileged I have no difficulty about the document which the Defendant received from the company when he paid off the mortgage of 1835, for this reason that, as he is insisting upon the original deed, and standing upon that alone, he could not afterwards place himself in the position of a mortgagee, because, he says, holding the property, that he has paid off that mortgage, and therefore the receipt became a part of the title to the property

which is now impeached. The case is, in some respects, like the case of the AttorneyGeneral v. Ellison (4 Sim. 238), where the Attorney-General was impeaching certain deeds of lease. These leases had been the subject of settlement, and the parties claiming under the settlement contended that, if they produced the leases, they were not bound to produce the settlement, because that could not form any part of the Attorney-General's title; the Vice-Chancellor, however, held that all that proceeded from the original documents and rested upon that foundation must be produced, just as the original deeds themselves. Here this party says, I have in my possession the deed which is impeached; and relying on that I paid off the mortgage, and the original instrument thus becomes of importance to test the matter in question. The Defendant is executor of his father, the testator in the cause, and it may appear by the receipt under what title he claimed to pay the money. If he did so as such executor, that would be a fact very material to the Plaintiff's title. I have, therefore, no difficulty on that part of the case.

In the peculiar position of this case the question is whether the Plaintiff would have a right to require the production of the deed which he seeks to impeach. The Plaintiff states that he deposited the deed in the Defendant's hands as a security for a sum of money; and the difficulty as to that is whether the Plaintiff can enforce production of a deed which he says that he has mortgaged. It is true that the Plaintiff goes on to say that the mortgage has been paid off, and the money restored to the lender. The best way of looking at it is to suppose that the Defendant had acceded to the Plaintiff's view, and said that it was true that the Plaintiff had deposited the deed by way of mortgage, and refused to produce it. In that case the Plaintiff could not have seen the deed. But the Defendant stands upon the deed of conveyance and says, I claim as a purchaser under that deed, that is, the [x] original document which the Plaintiff wishes to see. If the Defendant does not deny the Plaintiff's case, or put it upon the same footing as if he were a mortgagee, I think that I cannot take the statement in the bill without looking at the whole of it, which is that the mortgage by deposit has been paid off, and therefore the Defendant is now holding as the Plaintiff's trustee. The Defendant has neither admitted nor denied that case. He says that it is not part of his defence at all, but is inconsistent with it. I think that, when testing whether or not the Plaintiff is entitled to this discovery, I must take the whole statement to be that the intermediate transaction is at an end, and that it falls back upon the original deed; which is, in effect, the view which the Defendant himself takes, for he says that the intermediate transaction never took place at all. I must therefore decide that the Plaintiff has a right to see the deed which he has impeached.

[x] NORTON v. STEINKOPF. Nov. 16, 1853.

Motion for Decree. 15 & 16 Vict. c. 86, s. 15.

A Plaintiff may have the same relief upon a motion for decree, "according to the prayer of the bill," that he could have at the hearing of the cause in the ordinary

way.

In this case, which is reported above (ante, p. 45), the notice of motion for a decree being in form only, "according to the prayer of the bill," was objected to as not sufficiently specific.

In answer to this objection, THE VICE-CHANCELLOR Sir W. PAGE WOOD made the following observations :

I should be extremely sorry to hold that a motion for a decree differs in any way from the hearing of the cause, or that, under that form of proceeding, the parties should not be entitled to all the relief which they could have at the hearing.

If I were so to decide, a motion for decree would be an extremely perilous proceeding, because, in the event of the Defendant not appearing, the parties would run the risk of losing a portion of their remedy, and the consequence would be that the whole beneficial object of the Act of Parliament would be lost.

[xi] LIDDELL v. NORTON.

[S. C. 2 Eq. R. 668; 23 L. J. Ch. 169.
7 De G. M. & G. 338;

Production of Documents.

Nov. 25, 1853.

See Hope v. Liddell, 1855, 44 E. R 132.]

Letters in Pawn.

A Defendant will not be ordered to produce letters which, together with other goods. in a portmanteau, have been pawned by him before the commencement of the suit.

This was a motion for production of documents which had been adjourned from Chambers.

By her answer, the Defendant stated that she had "many years ago in her possession or power some letters, in which reference was made" to the matters in question in the suit; and that all such letters "were deposited by the Defendant in a portmanteau containing articles of plate and trinkets and clothing; and that the said portmanteau, with such contents, was, many years ago, but when more particularly she was unable to set forth, parted with by her to J. Wright, of St. Catherine's Place, Norwich, for monies advanced by him to her; and that the said portmanteau, with such contents, was still in the possession of the said J. Wright, who refused to part with it or to give to the Defendant or allow her to take a list or schedule of the letters therein until he was paid what was due to him from the Defendant." And the Defendant further said that she was unable to set forth, as to her belief or otherwise, the dates of the said letters, or a list or schedule thereef, or their nature, purport or effect, otherwise than as aforesaid.

By an affidavit in aid of her answer, the Defendant stated that the amount now due to J. Wright for principal and interest was about £41; and that she had no means whatever of paying such amount, having been for a long time dependent upon her son, who was a police constable, and with whom she was now living, for the means of supporting life; and that the documents so deposited with the said J. Wright were not in any way in her possession or power or under her control.

The production, or some list or account, of these documents amongst others was now sought.

Mr. Amphlett, for the motion.

Mr. Burdon, contrà, cited Palmer v. Wright (10 Beav. 234).

THE VICE-CHANCELLOR SIR W. PAGE WOOD said that he thought no case had gone farther than Ex parte Shaw (Jac. 270), in which Lord Eldon ordered a Defendant to produce documents which were in the possession of his solicitor, who claimed a lien upon them, saying that the Defendant must pay [xii] what was due to his solicitor if necessary. If documents were mortgaged, a Defendant would not be ordered to pay off the mortgage. The decision in Palmer v. Wright (10 Beav. 234) was not intended to overrule Ex parte Shaw (Jac. 270), as was proved by reference to the subsequent case of Rodick v. Gandell (10 Beav. 270), in which Ex parte Shaw was cited and followed, the Court giving to the Defendant liberty to apply in case he should be prevented from complying with the order, which put it upon the Defendant, if any difficulty occurred to shew that it was of such a nature as prevented his compliance with the order. But where documents were pledged the case was different; and, therefore, there could be no order upon this motion.

[xii] LONG v. STORIE. Dec. 3, 1853.

Foreclosure. Decree. Representation to deceased Defendant. 15 & 16 Vict. c. 86, s. 44. A foreclosure decree gave to seven persons or any of them the right to redeem within a certain time. Before that time arrived one of the seven died, and there was some difficulty about obtaining administration to him. Letters of administration were at length granted by the Ecclesiastical Court to a creditor, but before the proceeding was perfected another creditor entered a caveat.

The Court of Chancery made an order under section 44 of 15 & 16 Vict. c. 86, appointing the former creditor to represent the estate of the deceased, after a week's notice given to the opposing creditor; or, if the former creditor should refuse to be such representative, then, upon evidence by affidavit of such refusal, appointing the other creditor to be such representative.

Section 44 is only intended to apply to cases where there is a difficulty in obtaining representation owing to the insolvency of the deceased or some such cause.

This was a foreclosure suit.

A decree was made in 1852, giving to several Defendants several successive rights of redemption, extending through a period of three years. The first had made default; the second right of redemption was given to seven different persons. These seven Defendants were interested in one and the same mortgage security, and the right of redemption given to them by the decree was in form given to them or any of them.

One of these seven Defendants had since died, and had no personal representative. His widow had renounced probate, and the next of kin refused to take out letters of administration.

An application had been made by a creditor to have letters of administration granted to him, which had been accordingly decreed; but before the proceedings in the Ecclesiastical Court were perfected another creditor entered a caveat.

Mr. Bazalgette now applied, under s. 44 of the 15 & 16 Vict. c. 86, for an order, either that the proceedings under the decree for foreclosure might go on without any personal representative [xiii] of the deceased, and that his estate might be bound thereby, or that some proper person might be appointed as such personal representative for the purposes of such proceedings.

THE VICE-CHANCELLOR said that if the time fixed extended to three years, there was no reason why they should not wait a short time for the perfection of the administration proceedings. The Ecclesiastical Court was sitting, and the proceedings could not take many days.

Mr. Bazalgette said that no proceedings were being taken, but the whole matter was in abeyance in the Ecclesiastical Court.

THE VICE-CHANCELLOR SIR W. PAGE WOOD. I think, as the creditor has gone on so far as to obtain an actual grant of letters of administration, he is not likely to stop until he has some compensation for the expense which he has incurred.

The 44th section of the new statute is only intended to apply to a case in which there is a difficulty, either from insolvency or some other cause, in obtaining representation to a deceased party; but here a creditor has almost obtained representation, and you are asking me to proceed behind his back. I should require some intimation to be given to him. I will make an order that this creditor should represent the estate of the deceased party for the purposes of the suit, only directing that the order shall not be drawn up for a week; and, meantime, notice must be given to the creditor who has entered a caveat; or, if the former creditor refuses, I will make a similar order respecting the opposing creditor. The order must be subject to your producing an affidavit of the consent or refusal of the former creditor to act, and, if he consent, that due notice has been given to the other creditor.

[xiv] REED V. PREST. Dec. 5, 1853.

Evidence. Examination of Witnesses residing more than Twenty Miles from London. 15 & 16 Vict. c. 86, ss. 31, 35.

The Plaintiff moved that a solicitor might be appointed to examine witnesses residing more than twenty miles from London. Held, that the application might be made by motion in Court instead of at Chambers; and that, in case of witnesses residing so far from London, the old practice was unchanged; but the evidence in this case being special, a barrister to be chosen by both parties must be the Examiner. Costs to be costs in the cause.

Mr. Webb moved on behalf of the Plaintiff that a gentleman, who was a solicitor, should be appointed to examine certain witnesses residing more than twenty miles from London.

Mr. Howe, contrà, objected that the application should have been made at Chambers, without incurring the expense of a motion in Court; that it was altogether unnecessary, as some of the witnesses had already been examined in London before the Examiner in the ordinary way, and there was no reason why the rest should not be; and that, from the nature of the evidence to be taken, the official Examiner, or some person of experience in taking evidence, ought to conduct the examination.

THE VICE-CHANCELLOR SIR W. PAGE WOOD said that it was not absolutely necessary to make the application at Chambers, but it might be made in Court instead; that the former practice was not altered in the case of witnesses who resided more than twenty miles from London, and therefore the motion must be granted; but, as the evidence was somewhat special, the person to be appointed should be a barrister, to be chosen by both parties. The costs must be costs in the cause.

[xiv] HITCHCOCK v. CAREW. Dec. 6, 1853.

Evidence by Affidavit. Deed impeached. 15 & 16 Vict. c. 86, ss. 29, 30, 36 and 38. In a suit by a mortgagee to redeem prior mortgages and for a sale the mortgagor, by his answer, disputed the validity of the Plaintiff's mortgage, on the ground that the execution of it by the mortgagor had been obtained by a fraud concocted between one of the attesting witnesses to the deed and other persons, and without the Plaintiff knowing the contents of it. The Defendant had elected to have the evidence in the cause taken orally. The Plaintiff, not being able to obtain an appointment before the Examiner for some time, moved that he might be at liberty at the hearing to prove his mortgage deed by affidavit. Held that, as the answer impeached the deed in this manner, it could not be proved as an exhibit at the hearing, and, as the witnesses would probably be cross-examined, no time would be saved by the proposed course; and, therefore, the motion was refused; and as, if granted, it would have been an indulgence, it was refused with costs. The advantage of having witnesses produced for examination and seeing their demeanour is a right of which the Court will not deprive the parties.

This was a motion on the part of the Plaintiff that, notwithstanding the Defendant, Charles Hallowell Hallowell Carew, had elected that the evidence to be adduced in this cause should be taken orally, the Plaintiff might, on the hearing of the cause, be at liberty to prove by affidavit the execution of the indenture of [xv] mortgage of the 3d of December 1851, in the pleadings mentioned.

The bill stated numerous mortgages by the Defendant, Charles Hallowell Hallowell Carew, and ultimately a mortgage to the Plaintiff by a deed, dated the 3d of December 1851, and prayed an account, and that the Plaintiff might be let in to redeem the prior incumbrances, or for a sale; and in the meantime for a receiver. The Defendant, Charles Hallowell Hallowell Carew, by his answer, disputed the validity of the alleged mortgage deed of the Plaintiff; and stated that the execution thereof by the Defendant had been obtained by a fraud concocted between the Plaintiff and other persons, of whom one was one of the witnesses to the deed, at a time when the Defendant was in ignorance of his rights, and without his knowing the nature of the deed, and without consideration, and when he was under duress, being in prison for debt on a judgment upon a warrant of attorney which had been improperly obtained from him.

Mr. Amphlett, for the motion, referred to the 15 & 16 Vict. c. 86, ss. 29, 30; and s. 36, which provides that, "notwithstanding that the Plaintiff or the Defendant in any suit in the said Court may have elected that the evidence in the cause should be taken orally, affidavits by particular witnesses, or affidavits as to particular facts and circumstances, may by consent, or by leave of the Court obtained upon notice, be used on the hearing of any cause; and such consent, with the approbation of the Court, may