HOUSE OF LORDS. But if that cannot be done, your Lordships have only to decide what is the legal right of those parties; and it appears to me to be perfectly clear, that there is no matter of form standing in the way of our deciding that the sheriff first, and the Court of Session afterwards, have fallen into an error in supposing that this level crossing was a subject for compensation at all; that it is a damnum sine injuria; that so the sheriff ought to have told the jury, that the verdict, is a verdict which cannot stand, but which ought to be overturned; and that, consequently, the judgment of the Court of Session ought to be reversed. the error. LAW TIMES REPORTS. for severance. HOUSE OF LORDS. body, and not that party more than others; or, if it did affect him more than others, it was only a quesbeing taken gave a jurisdiction, and there might be tion of quantum; but the circumstance of the land whatever it was. a compensation claimed for the particular crossing, or foundation which cannot be relied upon here. must be utterly indifferent to a case of this sort, Now it is quite clear that that is a It because it is quite settled that there may be a damage, whether land be taken or not as an abstract question, and compensation may be required by a party from Lord ST. LEONARDS.-My Lords. I entirely concur whom no land is taken. in the motion which my noble and learned friend has be a separate assessment, a separate compensation, a stands then separately by itself. For that there must If land be taken, it proposed to your Lordships, both upon the question separate price; but you may find compensation of what may be called form (but there is no doubt something of substance even in that) and also upon the question of merits. As regards the question of certain quantities cut out in the middle of your You may find upon your landeven that for which you have had compensation form, the most material one is that which was first field, and you are entitled to compensation for it urged by Mr. Anderson, that the appellant might have had an action of suspension and interdict (an tion again because there is a as so much land. injunction), and that in that case the question would parts. You are entitled to compensahave been decided before it had gone to a jury. Now less it be an injury to the land, no severance of two But in respect of any other injury, unreally, that is only analogous to what has already be founded on the circumstance that compensation is been overruled in this country, for in the case which given for land. In concluding my remarks upon the claim can has been referred to, Lord Cottenham in the first in- cases, I concur with what my noble and learned stance granted an injunction to stay the proceedings. friend has said with respect to Lord Cunninghame's Whether it was a case in which the parties were en- authority in the case in Scotland. I think that it is titled to compensation or not, I think nobody pretends very much to be regretted that the Court of Session now to maintain that that was a proper decision. did not adopt it; it is a well-reasoned judgment. and Equity has no such jurisdiction. The Act of Parlia- certainly it goes upon the true ground upon which ment gives a remedy, and upon the Act of Parliament the judgment ought to have proceeded. the question must be tried. It is quite clear that no equitable jurisdiction is required, for all that equity judgment in this case in the Court of Session, without myself read what fell from the learned judge in giving I cannot could do would be to substitute so nething else for feeling an intimate persuasion that they gave way the provisions of the Act of Parliament. The Act of simply to the decision which had been already proParliament has directed the compensation to be esti- nounced, and that not one of them was satisfied mated in a particular way, and the law would give a right, if there was wrong in the proceeding, to correct have been unwilling to reverse a decision so recently with the grounds of that decision. But they seem to Whereas all that equity could do would made, and it is manifest that they rather invited the be to direct an action in the first instance, without appeal; at least, one of the learned judges certainly any authority to do so, in order to the first instance that which the Act of Parlia- Now, my Lords, as regards the authorities relating to try in invited the appeal which is now before your Lordships. ment has not required to be tried in the first this case, cited on the part of the respondents, and instance, and which may never require to be tried therefore in support of the decision in the Court of at all. For in most cases which go to a jury the Session, they are very few indeed. The case of R. v. right would not be so much in dispute as the amount of the compensation, and no question would arise after Eastern Counties Railway Company, 2 Rail. Cas. 736, the finding of the jury which would require another was relied upon in Scotland, and is relied upon now proceeding. Now, the opinion of Lord Cottenham has at your Lordships' bar; but in that case there was been clearly overruled, and I entirely agree with the an actual injury, I should say, to the land; at all authority of the cases in which that opinion has been which would give him an immediate right, no doubt, events there was an injury to the owner of the land, overruled. I think the same principle applies to the injunction that is now made. It cannot be mainto compensation. From his land he had been enabled tained, I think, by the provisions of the Act referred by the company, and it had been so lowered that he to step at once upon the road which had been lowered to. And, as regards the general question, I think it lost his access to that road, unless he had new apis open to the Court of Session to correct any error pliances in order to enable him to approach it. There into which the jury may have fallen as regards an excess of their jurisdiction, just in the same way as was, therefore, a real injury; there was a ground of by a proper process in England a similar error could complaint there personal to himself, and which was be corrected in regard to compensation found here. complaint when he got to the road; when he got not open to the rest of the world. The law is the same only with reference to the dif- there he had to sustain an injury in common with It was a general ferent tribunals both in England and in Scotland in all the rest of the Queen's subjects; that is to regard to these cases. My Lords, we then come to what is really the question intended to be brought less easy to travel upon than it was before it say, the road might be rendered a great deal before your Lordships' house, although the case carries had been crossed. us so much further, and that is the question of merits. remedy; it is a common inconvenience; all are For that he would have no Now, it is singular enough, that in this very case it subject to it, and the power to commit that injury appears, on looking at the evidence before the jury- was given by Act of Parliament for the public benetit, and it is stated in the respondent's case, I think-that and therefore the benefit which is received by the no witness was aware of any similar case except the public from the railway is considered to be the only case of Cowan's Hospital. Nobody knew of a case in compensation to which the Queen's subjects in general Scotland, where there had been a successful attempt are entitled in respect of the damage caused at the to recover damages of a like nature. Nobody dis- particular spot over which the railway travelled, or in putes it in this country, and there is not one law appli- respect of which the road in that spot had been cable in this respect to Scotland, and another law lowered. applicable to England. The same law governs both respect authorises the decision of the Court of ScotI consider, therefore, that that case in no countries; the same injury arises from the same cause. Whether it is on one side of the border or the other land in this case. is utterly indifferent, for there is the same law, 3 Bing. N.C. 281, and that clearly has nothing to do The other case which was referred to, was that of Wilkes v. The Hungerford Market, although in different Acts of Parliament, with very with this question, because, in point of fact, in that slight variations (only such as to meet the different case, the ground upon which compensation was circumstances of the two countries), when applied to claimed by a shopkeeper, the access to whose shop the same circumstances with respect to railways and the duties and the benefits arising or resulting there- Act of Parliament inclosing the access, was that they had been cut off by an act of the company under the from. In England the universal opinion has been that had unreasonably delayed the time of moving the no such remedy lies. If such remedy did lie, most unquestionably you would have had thousands compensation was not claimed in respect of barring hoard which prevented the access to his shop. The of instances in which it would have been applied up the access which was authorised by the Act of for, because daily and hourly men are sustaining Parliament, but the compensation was claimed in damage from acts done under the authority of Acts respect of the injury occasioned by the improper conof Parliament by railway companies. That is undeniable; but it is a damage authorised by the Act given to them by the Act of Parliament; they ought to duct of the company in the exercise of the powers of Parliament, and it is a general inconvenience have opened the communication sooner than they did, which all the Queen's subjects are subjected to, and for which no particular remedy is pointed out. My was obtained. He was enabled to recover compensaand for that and that alone the compensation, I think, Lords, it is clear upon general reasoning, and upon tion to the amount of a few shillings by reason of the general view of all men in the profession, both in the injury which was done him on account of the Scotland and in England, that the question would company having delayed the removal of the hoard not bear a moment's argument. Therefore we will for a few days. That case, therefore, has no bearing look at the cases to see how far the authorities bear upon the question now before your Lordships. My that out. Now, in the case of Cowan's Hospital, in Lords, I will just refer you to the cases in favour of Scotland, which was the foundation of the decision of the view that I am now submitting to your Lordships. the case now before your Lordships, the court founded Let us see what the circumstances are. Here there is their decision simply upon this-that there was land taken, and therefore the party was further damaged of the Queen's subjects. There may be there must no inconvenience which is not sustained by the whole by an act which otherwise would have affected every-be-in these cases a question of more or less incon [Vol. 25.-No. 633. venience. It may be that a man who has a couple of HOUSE OF LORDS. stalls alongside the road may have ten times oftener mansion within a quarter of a mile of it, or even to traverse the road than the owner of the finest abutting upon it; and therefore it is impossible to referred in the first case, or to an unnecessary conestimate the quantum of inconvenience, unless it amount to a damage such as that to which I have the second case. But in this case I can see nothing tinuation of the damage to which I have referred in by which this gentleman would sustain damage beyond what everybody else sustains. His estate is railway being near his property. That was a little not damaged. Before the jury it was insisted that he was actually entitled to damage in respect of the upon it; but all the respondent's witnesses declared too violent, and they do not appear to have acted way near it. That seems rather a strong view of the that no benefit accrued to his estate from having a railcase, because there are nuisances no doubt arising from having a railway near you; yet there are also some benefits attaching to it in consequence of the facility of travelling and having it so near your own door. But I can see nothing which affects Act of Parliament, of course it must be borne in this gentleman's estate in respect of the crossing. mind, expressly authorises the crossing on a level. That is a common inconvenience to everybody. The Now, in passing that Act of Parliament, no man could shut his eyes to the unavoidable consequences of that kind of crossing. It is a very great inconvenience: but by the very circumstance of its being a level feel it very much; it not only delays your progress, nobody has to sustain the inconvenience who does not crossing, horses in carriages, and horses which men are riding, must necessarily be very carefully guarded, in order to prevent the alarm which all horses must railway train. But there is no compensation to be inevitably feel from the rushing by on a level of a had for that, and if there were I ask where are we to stop? I do not deny that if any particular damage could have been shown to be sustained by this party subjected, there might be then a demand, although I am not prepared to say what would be the nature of to which the rest of the Queen's subjects were not But here it is only a question of degree. It is a matthat demand which would give such compensation. by the contiguity of the railway; but he sustains no ter of opinion whether the estate is benefited or not damage beyond what is sustained by other people as sustained by him as compared with the inconvenience it is only a question of the degree of inconvenience sustained by other people. My Lords, the authorities conclusive. on the other side appear to me to be perfectly Bristol Dock Company, 12 East, 429, I cannot myself distinguish that case from the present. With respect to the case of R. v. There was a public river accessible to all men, water, speaking generally, might be used by all men. the water in which might be used by all men, Any man could advance to that river and help himsubject, no doubt, to certain conditions; but the diverted a sufficient portion of the water of the river A person, having a brewery within a certain distance, self to a pailful of the water, or a cartful of the water. Company, under the authority of their Act of Parliament, executed certain works which contaminated for the purposes of his works. Then the Bristol Dock the water, and rendered it no longer fit for this man's circumstance, for the water which I used before, and had a right to use, has become so deteriorated and of use. He says, I sustain a particular damage from that such quality that I cannot any longer carry on my business. right; that nobody had any particular personal right It was held that he had only a general subjects, and that therefore he was not entitled to to the water; that it was common to all the King's The rights of both are common. recover upon that ground alone. Now, where is the difference between a public river and a public road? in point of fact, a highway, and a public road is a highway. and, if you have only that common right which beA public river is, You use each according to its quality; regard to a damage to either the one or the other which longs to all men, you cannot claim compensation in is authorised by an Act of Parliament; and if in any tion should be given, it is perfectly manifest that it such case Parliament ever did intend that compensawould be given generally to all within a certain limit, because there must inevitably be damage to many to a certain extent. My Lords, the same prindon Docks Company, 5 Ad. & Ell. 163. There it was ciple was in a later time held in the case of R. v.Lonindividual could maintain a right of compensation in That road was common to all, and it was held that no a claim to a common road which was stopped up. respect of the damage done to him. My Lords, I will Docks and the Birmingham Junction Railway Com pany v. Gattke, 6 Rail. Cas. 371. now refer to the case of the East and West India there lays down the same principle. he went out of his way rather to declare that opinion. Lord Truro India Dock Company, "I think this case is quite I believe He says, speaking of the East and West distinguishable from the case of the London and Northupon the following grounds: In that case compensaWestern Railway Company v. Smith, 5 Rail. Cas. 716, HOUSE OF LORDS. COURT OF APPEAL. Equity Courts. COURT OF APPEAL IN Reported by C. H. KEENE, Esq. of Lincoln's-inn, --- April 17, 18, and May 8. (Before the LORDS Justices.) COURT OF APPEAL. commence an action upon the policy against the Guarantee Company, and deposited the instrument with them for the purpose of that proceeding. This action was, of course, brought in the name of Cleland and Day. The Guarantee Company then filed their bill in this court against Cleland and Day, insisting upon their case, that the loss had been sustained by Lee's being employed otherwise than in the regular course of business, and obtained the common injunction to stay proceedings in the action. Considerable delay occurred before an answer to the bill was obtained from Cleland and Day. It was, however, at length put in, and the injunction being dissolved, the action at law proceeded, and a verdict was given for 4. being entitled as mortgagee to the proceeds of a po- the plaintiff on the 23rd Dec. 1853, subject to a refelicy of guarantee, the payment of which was disputed rence as to the sum to be paid by the defendants. On by the insurance company, and having instructed his the 12th Jan. 1-54 the arbitrator made his award, attorney to commence an action against the company fixing 2250l. as the amount to be recovered under the upon the policy, created a charge upon the proceeds in verdict; and it is this sum which is the subject of disfavour of the plaintiff. The attorney failing to obtain pute in these,suits. The case made in Myers's bill on the the money necessary for carrying on the action from part of the bank is this:-Harnden and Co. being inA., wrote to the plaintiff urging him to use his influ- debted to the defendant George Peabody, charged the ence with A. to enable the proceedings to be continued, sum due from them to him upon their interest in this and to see that the attorney was supplied with funds. policy of guarantee. Having made this charge in No answer was returned by the plaintiff to this letter, favour of Peabody, they then became debtors to the nor to a subsequent application from the same quarter. bank, and charged the balance, which might be due The original mortgagor, being insolvent, assigned his to them from Peabody, with the debt due from property to trustees for his creditors, and the trustees them to the bank; and the claim made by the bill assigned the policy to B. B. made advances to the rests upon the latter charge. The case made against attorney for carrying on the action, and a verdict was the bill is this:-It is said in the first place that the obtained against the company. The company having charge in favour of the bank did not include the received notice from one of the trustees of the mort-proceeds of the policy, which Peabody might receive gagor's creditors, claiming to receive the sum due on from the guarantee company; and. secondly, that if the policy, filed their interpleader suit, and paid the the bank had any lien, they have lost it, for this reason, that when applied to by Atkinson and Pilgrim to make them some advances for carrying on the action, they refused or neglected to make any such advances. It is alleged, that at the time and in consequence of this refusal, Harnden and Co., by an instrument dated 12th Nov. 1850, assigned all their property, including their interest in the policy, to trustees for their creditors, and that their trustees sold the policy to the defendant Charles S. Brown, of Boston, who gave notice of the assignment by a letter written immediately after, which reached Atkinson and Pilgrim in Dec. 1850, they having then the policy in their hands. It is further stated that Brown has incurred expense by making advances to Atkinson and Pilgrim for the action, considerably exceeding the taxed costs recovered against the Guarantee Company; and this is asserted to be a first charge upon the fund recovered. The question therefore is as to the priority sum into court. Held (dissentiente Knight Bruce, L.J.), that the con- Held, that the plaintiff was bound to repay B. the with interest. damages might have been safely paid to the attorney of tion was claimed solely upon the ground of injuri- This was an appeal from a decree of Stuart, V.C., Malins, Q.C., Cowling and Hetherington, for the Smythe, for James Scott, a defendant in the inter- Freeling, for the United Guarantee Company, cited of the bank and of Brown. The case in the interpleader suit is as follows:-On 28th Jan. 1854, after the verdict and award, Messrs. Atkinson and Pilgrim wrote a letter to the solicitor of the United Guarantee Company, in which they expressed themselves thus: "We shall be ready to receive the damages named as soon as your clients are prepared to pay same, and to give our receipt as the plaintiffs' attorneys, which is all your clients can claim, and will be a perfect discharge to them. The creditors of Messrs. Cleland and Day have no claim on the policy money whatever." On 30th Jan. 1854 the Guarantee Company were served with a notice, Giffard for the defendant Peabody. signed by the defendant James Scott, that by a deed, May 8.-Lord Justice TURNER.-This is an appeal dated the 4th Dec. 1850, Cleland and Day had asfrom an order of Stuart V. C. made in two suits. The signed all their property to James Scott and Dexter one is a suit by the Royal Bank of Liverpool, repre- Brigham as trustees for their creditors, and requiring sented by their public officer, Mr. Myers, to enforce a the money recovered in the action to be paid to Scott. charge upon the proceeds of a policy effected by The United Guarantee Company accordingly filed Messrs. Cleland and Day with an association called their bill, praying that the defendants Cleland and the United Guarantee Company, to assure them Day, Scott and Brigham, might interplead. Upon against any loss which might arise from defect of the hearing of the two suits, the V. C. was of honesty in Frederick Savil Lee, a person who was opinion that Brown was entitled to the extra costs about to be employed to conduct their business at incurred by him in the action against the United Liverpool. The other suit is an interpleader suit, Guarantee Company; but he thought that Brown instituted by the United Guarantee Company, for the had no further right or interest, and that, subject to purpose of determining the rights of various parties the payment of those costs, the bank was entitled to in the proceeds of the policy. It appears that in the the proceeds of the policy. The V. C. was also of beginning of the year 1850 the defendants Cleland opinion that the costs of all parties to these suits and Day, who were carrying on business at Boston, ought to be paid by Brown; and the decree which he in America, proposed to employ Lee, and that they made accordingly was, that an inquiry should be then effected the policy in question, which is dated made, whether any and what sum was due to Brown the 17th of Jan. 1850, and the company thereby for the costs of the action beyond the taxed costs reundertook to the extent of 2000l. to make good any covered against the Guarantee Company; that the costs loss which might be sustained by Cleland and Day, of Myers, of the Guarantee Company and of Peabody in in consequence of the want of integrity or fidelity of both of these suits should be taxed; and then direcLee in the course of his employment by the firm. tions were given, the effect of which was, that these Before July 1850 Cleland and Day had already, as costs should be paid out of the sum of 22501., and they alleged, sustained a loss by the dishonesty of that fund was to be indemnified by Brown, after deLee. They were then debtors to some other mer-ducting what the latter was entitled to receive under chants in America, Messrs. Harnden and Co., also carrying on business in Liverpool, their affairs in that town being managed by a person named Baines. Being so indebted, Cleland and Day deposited the guarantee policy with Harnden and Co. to secure their debt, and also gave a power of attorney to Dexter Brigham, one of the partners in the firm of Harnden and Co., to receive the money payable upon the policy. The Guarantee Company, however, disputed their liability upon the policy, alleging that the loss which Cleland and Day had sustained had arisen in consequence of their having allowed Lee to conduct their business otherwise than according to the ordinary course of mercantile dealing. Harnden and Co. accordingly instructed Messrs. Atkinson and Pilgrim to the first inquiry respecting the costs of the action. The directions in the decree are somewhat complex, but that is the result. From this decree Mr. Brown and Messrs. Cleland and Day have appealed. I think that no doubt arises as to the validity of the security upon the policy in favour of Harnden and Co. The first question therefore will be, whether a good charge of upon it was created in favour Peabody. In my opinion it was. It appears that on the 4th of Oct. 1851 Baines, who was then the manager of the business of Harnden and Co. at Liverpool, wrote and sent to Messrs. Atkinson and Pilgrim, who then had the policy in their hands, a letter informing them that, by the authority vested in him by Mr. D. Brigham and by Messrs. Harnden and Co. of Liver I COURT OF APPEAL. the construction of the documents, at least upon the conduct of the respective parties. Upon this account we had some doubt whether we should not ask the Lord Chancellor to hear the case. But we concluded that in this case, without laying down any general rule, we might dispose of the matter as has been stated by Turner, L.J.; for this reason, that so far as he proposes to alter the decree I agree with him, and I agree also as to the costs of the appeal. Friday, April 20. Consignee of West Indian property-Priority of lien Held, upon the general doctrines of the court without Mr. Ellice's petition stated that in pursuance of a decree made on the hearing of the original and revived suit, dated 1st March 1817, he was appointed in 1819 consignee of the rents and produce of the testator's estates. The master, by his general report, dated 18th Jan. 1826, found that the testator's real estates consisted of the plantations of Greenhill, Friendship, Les Coteaux, Golden-lane, and Mount Pleasant, and the slaves and buildings thereon. By an order of 13th Nov. 1830, Mr. Ellice was discharged from being consignee, and it was ordered that be should pass his final account before the master, with liberty to apply respecting any balance which might be found due to him on passing his accounts. By an order of 10th March 1837 it was directed that the Accountant-General should be at liberty to transfer in his name, in trust in these causes, certain sums, being the amount of compensation-money awarded in respect of the slaves on the several estates above mentioned, to accounts severally entitled, the account of the compensation-money in respect of the slaves on the estates above mentioned, the same to be without prejudice; and the interest and accumulations to be invested in trust to the like respective accounts. pool and Boston, he had transferred to George Pea- and to see that we are supplied with funds; for besides body all their interest in the policy, and begging the difficulty we encounter in getting an extension of Messrs. Atkinson and Pilgrim to hold the policy for time to put in the answer, the fact of its being so long Mr. Peabody, and to pay over the proceeds to him. delayed impresses our opponents with a belief This, therefore, was a plain direction to the holders of that we have a bad case; whereas we are confidently the policy to pay the proceeds to Peabody. But then advised by counsel that there is every probability of it was put, in a very ingenious argument by Mr. Cow- the action against the Guarantee Company being sucling, that Peabody did not accept the charge upon the cessful. The answer was sent to Boston so long ago policy, having other securities upon American bonds as the 4th June last, and ought to have been sworn to more than sufficient to cover his debt. It was said and returned to us long since. Requesting the favour that, in a letter written on the 10th Oct. 1851, Peabody of an early reply, we are, gentlemen, your obedient required confirmation from Harnden and Co. for the servants, Atkinson and Pilgrim." This letter was charge made by Baines; and that in the subse- not answered. On the 7th Dec. 1852 Messrs. Atkinson quent correspondence Peabody referred to the secu- and Pilgrim again wrote to the bank, requesting an rity on the American bonds, but took no notice answer to their communication, and still no answer of the policy. But I find that, in a letter of was returned. Now, it is said that this conduct on the 24th March 1852, he refers to the policy as the part of the bank is in itself sufficient to entitle an existing security. I think it clear, therefore, Mr. Brown, to whom the fund had been assigned by that he had accepted the charge upon the policy cre- the trustees for Messrs. Harnden and Co.'s creditors, ated by Baines's letter, and have no doubt that a good to priority over the bank. Upon this point I have charge was created by Harnden and Co. in favour of the misfortune to differ from my learned brother. Peabody. The next question is, whether there was a think that this conduct is not in itself enough to valid charge in favour of the bank upon the balance postpone the right of the bank. I think that, to dein Peabody's account; and if so, whether this charge feat the prior charge of the bank, it ought to be shown included the policy. I am also of opinion that that they had clear and distinct notice of the intenthere was such a charge, and that it included the tion of creating a new charge, if the bank did not policy. It appears that on the 15th Oct. 1851, advance the necessary funds for recovering the sum Baines wrote to Peabody in the following due upon the policy. The letter which has been terms:-"You will please to hold at the dis- relied upon does not convey such an intention. It posal of the Royal Bank of Liverpool any balances rather urges the bank to interfere with Harnden and which may be due to us on our account with you, and Co. to get in the answer and to supply the funds, than oblige, dear sir, yours, &c., for Harnden and Co. calls upon them to do anything themselves. I think James Baines." This was accompanied by a letter it would be unsafe to hold that such a letter written from the manager of the bank to Peabody, requesting by a mortgagor's solicitor to a mortgagee would to know the probable amount of the balance. The operate to postpone his rights to those of a subsequent expression, any balances which may be due to us on incumbrancer. I say this with great deference; but I your account," is certainly an equivocal expression, am the less inclined to give to the letter in the and does not clearly relate to the proceeds of present case the operation contended for, when I find the policy; but by another letter of Baines to that Brown took the assignment without making any Peabody of the same date, which is stated in Pea- inquiries as to prior rights. But, on the other hand, body's answer, Baines expressed himself more dis- it is clear that justice requires that the bank should tinctly upon the subject of the property to which the not have the benefit of Brown's expenditure without charge applied" We have to-day given to the Royal indemnifying him. I think indeed that the decree in Bank an order upon you for any balance which may this respect does not exceed, but falls short of what be due in the winding-up of our present accounts, justice to that gentleman' requires. Besides the and which we shall feel obliged if you will confirm. action, there was a suit in equity against Cleland and According to your own account rendered, you will on Day to restrain the proceedings in the action; and it receipt from the Guarantee Company have that is probable that money was advanced by Brown to amount, say 15007 to 2000l. to our credit, &c." And procure the answer to be put in by the defend nts in Peabody's answer to the bank, dated 16th Oct. in that suit. I think the decree should be extended 1851, he says that the amount of the balances would so as to cover the costs of that suit, as well as mainly depend on a claim upon a Guarantee Company those of the action; and that Brown is also entitled and the value of 4000. Grand Junction Railway to interest at 4 per cent. upon his advances. Bonds." These letters amount to a direction by a My opinion therefore is, that the bank is endebtor, that subject to his charge his creditor is to hold titled to priority over the fund, but that they the fund upon which his debt is secured to the credit ought to pay Brown his advances both for the action of a third person, and an agreement by the creditor and suit with interest. But there my agreement with so to hold it. At the same time Atkinson and Pilgrim, the V. C. stops. As to the costs of these suits, I canthe actual holders of the security, had notice of the not concur in his decision. He has been of opinion charge, though not of the nature or extent of it. I that the costs of all parties ought to be paid by conclude therefore that a good charge was crea- Brown. Now, it was by means of his advances that ted in favour of the bank. The question the fund was realised, and I do not think it fair that then is, whether this lien has been lost. all the costs of determining the title to it should be In the action upon the policy, Messrs. Atkinson thrown upon him. On the contrary, I think that the and Pilgrim were originally instructed by Dexter bank ought to pay Brown his costs: first, because he Brigham, and great expenses were incurred by them took the fund without notice of the lien of the bank, in the prosecution of it, to meet which they only re- and secondly, because the bank never offered without ceived 100%. from Brigham. They wrote without suit to indemnify him in respect of those advances, success to Harnden and Co. in America, and to which I have held he was entitled to be repaid. I Baines in Liverpool, soliciting further advances to think, also, that Peabody's costs should be paid by carry on the action, and to defend the suit instituted the bank; since, under the circumstances, that gentleby the Guarantee Company, the answer in which man became a trustee of the fund for them. The had been sent to America, but not returned. Under same principle applies to the costs of the Guarantee these circumstances, Messrs. Atkinson and Pilgrim, Company, who in this suit must be considered as on the 25th Nov. 1852, wrote a letter to the directors trustees; since, whatever their conduct may have been of the bank in the following terms:-" Gentlemen, before, there is nothing to impeach it as far as Mr. James Baines, of Liverpool, having informed us these proceedings are concerned. With respect to in reply to our inquiries that you are interested in the costs of the interpleader suit, I very much doubt the money to be recovered under the policy of the whether this was properly a case for interpleader; Guarantee and Life Assurance Company for 2000 since I think the money might have been safely paid in favour of Messrs. Cleland and Day, of Boston, to Messrs. Atkinson and Pilgrim as the attorney's in U. S., and which they transferred to Mr. Dexter the action. The money was, however, paid into Brigham, of the firm of Harnden and Co., and as court, and the suit may be said to have been adopted to which an action at law and suit in equity by all parties, and it is now too late to take that are now pending, we think it right to apprise objection. I think, therefore, the plaintiffs in that you that we wrote to Mr. Baines on 20th Aug. suit should have their costs. These costs would primalast, in reply to his of the 18th of that month, inform-rily and under ordinary circumstances, if the inter-ceeds of sale of a sufficient part of the said sums of ing him of the position of the pending proceedings, pleader were unconnected with the other suit, fall and that it was necessary we should be supplied with upon the defendant Scott, whose notice, given, as it 2001. to cover disbursements already made, and those has appeared, without sufficient foundation, caused about to be made; and we presume that he made you the suit. But the bank having adopted the fund in acquainted with the contents of our letter. We have the interpleader suit, these costs should, I think, under written him several times since, and on the 26th ult. he the circumstances, be paid out of the fund. I think wrote us that he should on the morrow see Mr. also that Brown, being a party to the appeal, and Chaffers, when he would report to us what had trans-being, as I consider, entitled to be indemnified to the pired; since which time Mr. Baines has made no allu- full extent I have mentioned, the appellants' costs of sion to the subject, although he has written us on the appeal should be paid out of the fund. The other other points. In our letter to Mr. Baines on the 20th costs of the appeal will be costs in the several suits. Oct. last, we mentioned that we had written to Lord Justice KNIGHT BRUCE.-In this case, if Messrs. Harnden and Co. on the 4th of June last, as Turner, L.J. had agreed wholly with the V. C.'s to the necessity of supplying us with funds to decree, the affirmance of it would have been of carry on the proceedings, to which we have received course. But he differs in part, and agrees in part no reply. If you have an interest in the result of with the V. C. So far as he differs from the decree the proceedings now pending for recovering the 2000, I agree with him; but so far as he agrees with the we advise you to exercise whatever influence you decree, I respectfully differ from him and from the possess in getting the answer of Messrs. Cleland and V.C.; my opinion being favourable to the title of Day to the bill in Chancery put in as soon as possible, Brown as preferable to that of the bank, if not upon By a report of the 7th May 1842 the master found that he had allowed the petitioner's account, and that there was a balance of 53351. 8s. 7d. due to him on passing his said account as consignee. No part of this balance had been paid. The petition further stated that the sums awarded for compensation-money as above mentioned were invested, and that there was then standing in the name of the Accountant-General to the credit of the cause to the account of the compensation-money in respect of the slaves on the Les Coteaux estate, 15,3071. 2s. 8d. Bank Three per Cent. Annuities; to the account of the same on the Golden-lane estate, 44001. 19s. 2d. similar annuities; to the account of the same on the Greenhill and Friendship estates, the sum of 7248/. 128. 11d. similar annuities. The petition prayed that it might be referred to the chief clerk to calculate interest on the sum of 53351. 8s. 7d., the amount so found due to the petitioner as aforesaid from the 7th May 1842, and to certify the whole amount due to the petitioner for such balance and interest; and that petitioner's costs might be taxed and paid out of the pro15,3074. 28. 8d., 7248l. 12s. 11d. and 44004. 19s. 2d. Bank Three per Cent. Annuities; and that the recognisance entered into by the petitioner and his sureties might be vacated. Mr. Forsyth's petition stated, amongst other things, that after an order of the master dated 11th April 1841, appointing him permanent consignee of the estates above-mentioned, he (the petitioner) had passed numerous consignee accounts before the master. The master by his certificate, dated 24th April 1854, found that the sum of 32,815l. 178. 3d. was the sum due to the petitioner on passing his account, in respect of all the estates aforesaid, up to 30th April 1852; and the petition stated that the balance then due to the petitioner considerably exceeded that sum. The petition prayed that the petitioner Mr. Forsyth might be discharged from being consignee; and that he might pass his final accounts as such consignee; and that the balance found due to him on passing his final account might be paid out of the proceeds of MAY 19, 1855.] COURT OF APPEAL. the said several sums now standing in court to the credit of the causes, being the accounts of the compensation-money in respect of the slaves on the several estates and interest, or of the residue of the same, after satisfying thereout what may be found due to the petitioner Mr. Edward Ellice, as prior consignee; and for the costs of the petition, and that the recognisance entered into by the petitioner and his sureties might be vacated. The main question was as to the right of the consignees to be repaid their advances in priority to the mortgagee. It appeared that some of the payments made by Mr. Ellice had been made to the tenants for life of the property. Exceptions were taken to the master's report of the present year. The petitions, exceptions and further directions, came on for hearing together before Stuart, V.C., when his Honour was of opinion that the consignees were entitled to be repaid the sums found due to them, with interest out of the fund in court, in priority to every other charge: (see the report, 24 L. T. Rep. 189.) The present appeal was from that decision. G. M. Giffard and Cracknell, for the appeal, cited Shaw v. Simpson, 1 Y. & C. C. C. 732; Re Tharp, 3 Eq. Rep. 206, n. Wigram, Q.C. and Wickens, for the petitioner, cited Scott v. Nesbitt, 14 Ves. 438; Sayers v. Whitfield, 1 Knapp. 133; Farquharson v. Balfour, 8 Sim. 210. Brett for Russell Ellice, an incumbrancer. Lord Justice KNIGHT BRUCE said that the principles, so far as there were any, and the authorities generally applicable to estates in the West Indies, had, as it appeared to him, little in common with the present case, which, in his opinion, must be decided on the most general, and, perhaps he might say, universally applicable principles. The position of the estates at the time of the commencement of the suit was this. They were under an absolute trust for sale. The trustees had a discretion, perhaps not more than was usual in settlements, as to postponing the sale, a limit being imposed as to parts of the estates, beyond which the sale was not to be postponed. In the view of this court the property was personalty, because its ultimate destination was to be converted into money. The value of the estates in the mean time was only so much money as they would ultimately bring. Up to this time there was not existing a tenancy for life or in tail, or any other than an absolute interest; all such estates as were now existing were under settlements or contracts, subsequent to the creation of the trust. In this state of things a receiver had been appointed, who was also consignee by the nature of the case; but every act done was in the ordinary course of proceeding with relation to money-not in the state of money, but of an investment in which the money was temporarily lodged. The court might have miscarried in its endeavours to perform its duty; it appeared to have done its best, and, if all the assistance that those interested might have given was not afforded, the court was not to blame. But it had sanctioned a series of payments by the receiver as the servant of the trustees, that is, of the court; and unless the receiver or consignee could be affected with knowledge of any fraud, he was not accountable for the propriety or wisdom of the orders or directions of the court. Here there was no reason to doubt the good faith of the consignees. They were directed to make certain payments; and it was too late to go back to the propriety of the payments. Praise or blame which may be due to the court was of no importance in the matter. The only question was, what was to be allowed to the servant of the court? The payments must be looked upon as payments in the proper administration of the trust for the protection and preservation of that which was to be preserved, until it should be converted into money. It was impossible that the property should be now enjoyed without making good the sums expended in its administration in good faith under that authority whose duty it was to direct the payments. According to his view, whether they were judicious or injudicious, these sums must be allowed as expenditure properly made by the trustees of a pecuniary fund in the course of administration. Lord Justice TURNER said, that if in this case it had been necessary to give his opinion upon the general question as to the rights of the consignee of West India estates, he should have hesitated to do so without further consideration, for his mind had never been made up on that point; but this case in no way involved the general proposition, the peculiar circumstances of the case taking it out of that question. There were two points in the case: the first, as to the balance due to Mr. Ellice up to 1830, when he was discharged; the other, as to the balance due to Mr. Forsyth. The objections on these two points rested upon different grounds. With respect to the claim of Mr. Ellice, the objection was, that some of the sums were paid to the tenant for life of the property, and therefore there was no lien on the corpus in respect of them, the persons receiving them having only partial interests. The first answer to this objection was, that these accounts had been passed in the master's office as long ago as 1830, when Mr. Ellice was discharged. It was objected that the parties were not allowed to be present in the master's office, when the balance was passed. Possibly this LAW TIMES REPORTS. COURT OF APPEAL. was so; but that injury, if injury it was, was done at Wednesday, May 2. (Before the LORD CHANCELLOR.) A testator, by his will, executed three calendar months COURT OF APPEAL. Willcock, Headlam, Chapman, Rogers and Smythe, The facts of the case are reported at length, 24 L.T. The LORD CHANCELLOR.-The question in this case arises thus:-The testator having two houses in Brighton gives them to trustees upon trust to sell and invest the proceeds, and to pay the interest of the proceeds to his widow for her life, and after her death he gives it through the trustees to the plaintiffs. There would not have been a valid gift. The question is is no doubt that, under the Statute of Mortmain, that c. 108. Now that depends upon particular circumwhether it is made valid by the statute 43 Geo. 3, stances. The property, have no doubt, is less than the land on which the two houses in Brighton stand is, no doubt, less than five five acres; acres; and the question is, whether that was not a gift authorised by the statute? Now, the language of the statute is "that such testator may give and grant all such his, her, or their estate, interest, or property in such lands and tenements not exceeding five acres. Now, the conclusion at which the V. C. arrived, and which I now aflirm, was that the five acres mentioned in the Act are five acres to be specifically enjoyed as five acres, either for the church or for the glebe, or for the parsonage-house; they are to be but one specific five acres: any other construction would lead to a most to the value of the land; but, if money were to be given, absurd result. In the first place, no limit is imposed as the distribution of which is quite as important to this association, the amount is limited to 500l. You might, omitting the statute, extend it to 500,000l. I dare say a gift of five acres would perhaps hardly exceed 500, while, for aught I know, if there were valuable houses on it, it might exceed 50,000l. That would But the truth is, be a very strange construction. looking at the other clauses, the whole intention of the Legislature was to permit a gift of a specific piece of land for a specific object. All you want is construe it. It is true that you could imagine the the limit of value, and it is quite reasonable so to case of a person giving five acres upon some trust for the minister of his own parish, which is the case put. Suppose the Marquis of Westminster chose to giveand no doubt, I think, the statute would authorise him to give-all Belgrave-square, if it does not exceed five acres, which I do not suppose it does, for the glebe of the minister of that parish. That is true; but that is a discretion which the Legislature thought they might safely intrust to any proprietor of land. In truth, the application of the statute being, as it was obviously contemplated by the Legislature, to the case of small livings, where there was no glebe, or an imperfect glebe, or no parsonage-house, or no church, of property to give a specific five acres, limiting it to it thought it might safely intrust to the owners five acres. However, it would not let persons do that, I supif there were already fifty acres; but there is a power of giving them to the extent of an acre. the purpose of enabling This was an appeal from Wood, V. C. The facts were pose that these:-A Mr. Harrison, by his will dated Feb. 1838, the landowners of the parish, if they thought But the whole statute devised to trustees, of whom his wife (who afterwards fit, to get rid of an inconvenient corner, or somemarried the defendant) was the survivor, and their thing of that sort-they might just do that to heirs, two freehold houses in Silwood-place, Brighton, make it more convenient. upon trust to sell and invest the purchase-money in points to a specific gift. I think, if there is any doubt Government securities, and to pay the dividends half-upon that, the second section places it beyond all to give five acres of land in Belgrave-square, and five yearly to his wife for her life, and at her death to possible controversy. If a testator by his will were make over and transfer the principal sum so invested to the "treasurer for the time being of the Incorporated acres of bog land in Wales, making together ten acres ; Society for Promoting the Enlargement, Building is the Lord Chancellor to say what portion of that and Repairing of Churches and Chapels," to be ap- ought conveniently, in his judgment, to be retained? plied to the uses and purposes of that society, for the If so, the Lord Chancellor is to be allowed the dispayment of which said legacy the treasurer's receipt cretion of saying that one charity shall take 507., and acres might be taken as being worth 500,000l., or they for the same should be a sufficient discharge. The another shall take 500l. or 50,000l., because the five testator lived more than three calendar months after any discretion of that sort, or the execution of his will, and died, leaving his two may be taken as being worth 50s. It is absurd to sisters his co-heiresses at law. The plaintiffs-the suppose that there Incorporated Church Building Society-filed their that any court or functionary should have the power or that they shall take something merely nominal. bill against the wife of the testator and her present of saying that they shall take an enormous property, husband, and the testators co-heiresses at law, alleging that the trusts for the benefit of the plaintiffs That is the construction which you must put upon the were not void by virtue of the Act 9 Geo. 2, c. 36, Act, if you suppose that it means anything else than but were valid; and in particular, that by virtue of a bequest of five specific acres to be specifically enthe Act 43 Geo. 3, c. 108, the testator was authorised joyed. That, certainly, is entirely avoided by that to devise the houses and premises in the manner construction; because, when a person, giving some mentioned, and the plaintiffs to receive the benefit of land as glebe to a church, has either by oversight or the same; and that if, in consequence of the form of inattention given more than five acres, there can be no the said devise, and of the trusts thereof, the gift for difficulty in the court directing a reference, or some But that is very different from the present case; the benefit of the plaintiffs was to be considered as a inquiry to see which is the most convenient to take. gift of goods and chattels, and not of lands and tene. ments, yet the plaintiffs were entitled to the benefit because, with reference to the pecuniary value to this thereof to the value of 5001. at the least, and praying corporation, in order to enable them to endow or that the rights of all parties under the devise might repair churches in some distant or remote parish, it be declared, and the trusts carried into effect; that is more convenient to take whatever shall be most which is of itself sufficient to indicate that they the houses might be sold, and the purchase-money valuable. It seems to me, therefore, quite clear invested and secured for the benefit of the parties that to five acres the Legislature meant to limit it, interested. meant, five acres to be appropriated to a specific the plaintiffs say that, at all events, they ought to object. Then that being so, there is still this pointhave the value of this property to the extent of 5007.; there were no means of authorising the lands to be sold in order to pay over the proceeds, as that is within the prohibition of the Mortmain Act; and if A gift, under the stat. 43 Geo. 3, c. 108, should be for The V. C. decided that the devise could not be supported under the statute 43 Geo. 3, c. 108, and was void under the statute 9 Geo. 2, c. 36; he decided also, that the devise could not be supported as a gift of the proceeds of the sale to the extent of 5007. From those decisions this was an appeal. Rolt and Kenyon appeared for the plaintiffs. was for ROLLS COURT. there was no more except the devise of five acres for the specific purpose of giving five acres, the directing the five acres to be sold and the proceeds to be applied, is doing something which the statute does not authorise. It seems to me, therefore, that that disposes entirely of that point. Nor is it open to the argument which has been addressed to me, that by so directing I am excluding something which may, no doubt, be done by the statute. That is not so, because, independently of the statute, you cannot now give 5001. in goods and chattels for the purchase of a church or chapel. The provision might have been within the statute to build or repair a church, but if it did want any additional land, no doubt that would have been void under the Statute of Mortmain; and the same objection clearly and necessarily applies to a gift of money, that it is within the Statute of Mortmain. It seems to me clear that the V. C. is perfectly right, and consequently, that this appeal must be dismissed. Willcock.-I think I ought to ask for costs. The LORD CHANCELLOR.-And being asked for, with costs. ROLLS COURT. Barrister-at-law. January 29, 30, 31, and March 23. Solicitor-Lien for costs-Allocatur-Order for pay- LAW TIMES REPORTS. ROLLS COURT. [Vol. 25.-No. 633. ROLLS COURT. recovered, for the costs of the proceedings: (Turwin as regards the interest of the original defendant v. Gibson, 3 Atk. 719; Barnesley v. Powell, Ambl. 102; Neale; for, with the exception of a few shillings a Cowell v. Simpson, 16 Ves. 275; Richards v. Platel, week allowed to him by Remnant at the latter end of Cr. & Ph. 79; Pope v. Wood, 2 Anst. 577; Blunden his life, he has received nothing from his success. 7 Hare, 351; Bozon v. Bolland, 4 Myl. & Cr. 354; tion, and the question now arises, which of the two v. Desart, 2 Dru. & Warr. 405; Pelly v. Wathen, The property has been wholly absorbed in the litigaForry, 109.) Secondly, that the registering of the that part of his claim which the estate is insufficient Brooks v. Bourne, 1 Price, 52; Gifford v. Gifford, solicitors is to exclude the other from the payment of master's allocatur in 1838, or at least of the order for to pay? The plaintiff contends that the defendant's payment in 1841, gave the plaintiff priority over sub- securities were obtained with a view of defeating bis sequent securities of Remnant. charge to secure future advances gave Remnant no recovering the very property on which the defendant priority over intermediate claims of the plaintiff: has obtained his changes; and that every obstacle Thirdly, that the judgment and claim for costs due for business done in (2 Fonbl. 438; Digby v. Craggs, Ambl. 612; Coote on Mortgages, 431.) Fourthly, the defendant ought fendant in the way of the plaintiff obtaining not to obtain priority by the delays which he had the order for the payment of his costs, which which could be devised was thrown by the deinterposed to the prosecution of the plaintiff's claim. Neale. Lloyd, Q.C. and F. T. White, for the defendant that this court ought to treat these proceedings of the constitutes his judgment; and the plaintiff contends nant, contended that the defendant's securities had my opinion at the hearing that this claim could not Palmer, Q.C. and Karslake, for the defendant Rem-pone his charges to that of the plaintiff. I expressed defendant Remnant as fraudulent, and ought to postpriority over the plaintiff's claim, which only took be maintained; and, whatever may be the opinion of rank from the date of the last registration of the order the court as to the general course of conduct which for payment: (1 & 2 Vict. c. 110, s. 18; 2 & 3 Vict. has wasted this estate. I see no ground for acceding to rities all took effect under the charge for securing future him. I think it unnecessary to go into any discussion c. 11, ss. 4, 5; 3 & 4 Vict. c. 82, s. 2; Freer v. Hesse, the contention of the plaintiff that, as between himself 21 L. T. Rep. 333; 17 Jur. 703.) The defendant's secu- and the defendant, he is entitled to priority over advances: (Gordon v. Graham, Vin. Abr. tit. "Debtor respecting the various circumstances bearing on this and Creditor," E. Ca. 3, P. 52; S. C. 2 Eq. Cas. Abr. point. It is sufficient to say, I see nothing in the 598; Johnson v. Bourne, 2 Y. & C. C. C. 268; conduct of the defendant which should disentitle him to Blackburn v. Warwick, 2 Y. & C., Ex. 92.) suit is, what are the rights of the plaintiff on the plaintiff is entitled to open the accounts between the The MASTER of the ROLLS.-The question in this to his securities. The next question is, whether the the fair, legal and equitable rights which are incidental against the defendant Remnant, who has various seestate which he has recovered by his exertions, as defendant Remnant and James Neale, and whether he brancer in this estate, and that he is entitled to a curities upon it? That the plaintiff is an incum- item (including the bill of costs), which constituted is now at liberty to canvass the propriety of each decree to redeem the defendant Remnant, and foreclose repeat the opinion I expressed at the hearing, that in the amount for which the security was given? I it is to rank before or after all or any of the defen- than that of James Neale, had he now sought to take the equity of redemption, is not disputed; but whether no event could the claim of the plaintiff stand higher dant's charges, is the question to be determined. In this account, and that if Neale could not have been perraised, some of which I then disposed of, but to that I put the rights of the plaintiff as high as those rity over the defendant, various contentions were cluded. In saying this I desire not to have it understood support of the plaintiff's claim to have absolute prio- mitted to go in such an inquiry, the plaintiff is also prewhich I will shortly refer. The first was that the of Neale, but I am confident they can stand no higher. Gordon v. Graham, 2 Eq. Ca. Abr. observed upon. plaintiff was entitled to a lien on the real estate re- Regarding the case, then, in this point of view, The plaintiff in this case was formerly the solicitor curred in the proceedings for that purpose. This was covered, for the amount of his charges properly in- although I am by no means satisfied with what I see of James Neale, since deceased, who in the year argued upon the principle on which the court acts, satisfied that Neale was in the matter of these secu1836 employed him to prosecute an action of eject- where it refuses to part with a fund in court, and rities inops consilii, still, after an acquiescence of ten of the accounts of Mr. Remnant, and though I am ment and other proceedings relative to an estate in produced by the exertions of a solicitor, until his costs years in bills of costs, and in an account stated, I the county of Lancaster, to which Neale laid claim. of recovering it have been discharged. At the hear- should not have allowed Neale to open such an acNeale was successful, and a compromise followed, by ing I expressed my opinion that no such lien exists count, unless actual fraud and intentional misrepresenwhich Neale recovered the property. In Feb. 1838 either at law or in equity, on a real estate recovered tation or concealment were proved; but that is not Neale discharged the plaintiff from being his solicitor, by a solicitor. It is, in fact, contrary to all principle. proved in this case. The next question is one of and appointed Mr. Remnant (a defendant to this suit), It would be, in truth, an evasion of the provisions of greater difficulty and of considerable importance; to act for him. In April 1838, on the demand of the Statute of Frauds more completely than the case namely, the position in which the defendant's seauNeale, the plaintiff delivered his bill of costs and dis- of an equitable mortgage by the deposit of title- rities are to rank as affecting the estate. As a matter bursements, which was taxed under an order of one of deeds; and it would be obnoxious to many other of course, such of Remnant's securities as were prior the courts of common law, and the allocatur of the objections to which it is unnecessary to advert. in point of date must rank before the registered order master was made on the 11th April 1839, finding It was contended, secondly, by the plaintiff, that the of the plaintiff of the 30th Jan. 1841, and conthat on the balance of the bill of costs and the cash registering the master's allocatur gave it the effect of sequently, at all events, Remnant will stand as the account, 12381. 2s. 3d. was due to the plaintiff. On the 16th April following the plaintiff registered the this also I decided against the plaintiff, such a claim to be entitled to priority over the plaintiff in respect a judgment and created a charge on the estate; but first incumbrancer on the property. Remnant's claim allocatur as an order to pay money under the pro- being wholly unsupported by any provisions to be of the subsequent securities is rested on two grounds: visions of the 2 & 3 Vict. c. 18. The plaintiff was, how-found in the statute of the 2 & 3 Vict. c. 110, and the first, that the first security (June 1839) was to ever, unable to serve the allocatur upon Neale, who kept 2 & 3 Vict. c. 11, on which statutes alone, if at all, secure future advances, and that this will give priority out of way, and he consequently could not get the order such a claim could rest. The sections referred to, in to all subsequent advances, though made with notice absolute for payment of the amount; but in Nov. fact, apply only to orders to pay a sum of money; but of the charge of the plaintiff; and secondly, that, 1840 an application being made to the court by the allocatur of the taxing-master, which finds the according to the true construction of the statutes of Remnant, on behalf of Neale, that the plaintiff should amount due, is not an order to pay the amount, but the 1 & 2 Vict. c. 110, and the 2 & 3 Vict. c. 11, produce the title-deeds in his possession relating to Neale's estate, which had been recovered by the plaintiff, obtained. In the third place, the plaintiff contended the date of the second re-registration thereof, viz. the an order for this purpose must be subsequently the plaintiff's charge takes effect only as if created at the plaintiff obtained an order that Remnant should that by reason of the conduct of the defendant Rem- 30th Nov. 1852. I am of opinion that the defendant produce Neale in court, and service was then made nant, he (the plaintiff) is entitled to priority over all Remnant is not entitled to stand as an incumbrancer upon him; and on the 28th Jan. 1841 the plaintiff the incumbrances of the defendant, or at least over obtained an order absolute for the payment, which he those which are subsequent in date to his judgment; vances made subsequently to the registered order of registered on the 30th Jan. following. The plaintiff and as to the others, even if he be not entitled to pri- 3rd Jan. 1841, of which he had full notice, that is, on the estate, before the plaintiff, in respect of the adre-registered the judgment on the 30th Nov. 1846, ority, he contends that he is entitled to open the without reference to the statute. The law with reand again on the 30th Nov. 1852. meantime, prior to the date of the order abso- defendant, and that the defendant is only to be who takes subject to a prior mortgage, made to secure In the account between James Neale deceased and the spect to the question whether a second incumbrancer lute, the defendant Remnant had obtained from allowed what should appear to have been the amount Neale a mortgage, dated June 1839, upon the property actually due to him at the respective times when he for a large amount, and a charge for securing future obtained these charges, if an account had been then his security by the first incumbrancer, having notice a sum then due, and also future advances, is entitled advances, not exceeding 2000. In 1844 he obtained taken between them, and if his bill of costs had been of such second incumbrancer, is a point not free from to priority over the advances made subsequently to a fresh mortgage for 1776l., the amount then alleged properly taxed. to be due from Neale, together with further advances, tended that, under the provisions of the statutes put in favour of the first mortgagee who claims prinot exceeding 20007.; and on a subsequent settlement above referred to, he is entitled to priority over, at ority for his subsequent advances is, that the And fourthly, the plaintiff con- doubt on the authorities. The ground on which it is of account made between Neale and Remnant in 1852, least, all the charges of the defendant which are sub-second mortgagee might by tender of the amount due 22487. 98. 10d. appeared to be then due to Remnant. sequent to the 30th Jan. 1841, when the plaintiff to the first mortgagee have stopped all future adThe greater part of this sum was for his costs of various registered the order against Neale to pay the amount proceedings relating to the estate, and the claim of the found due on the master's taxation. It was for the where Lord Cowper held that the second incumplaintiff, and to an attempted sale of the property; purpose of considering the various questions arising brancer, when he advanced his mouey, having notice vances; and the case of Gordon v. Graham is cited, and the whole fee-simple of the estate is completely on these two latter points that I reserved my judg- of the first mortgage, could not redeem the first mortabsorbed by the combined effect of the claims of the ment, as they involve some questions of nicety, gagee without payment of the sums advanced by him plaintiff and Remnant. against Neale and Remnant, and prayed a declaration the facts of the case, and to the construction to brance. This decision has not met with the unaniThe original bill was filed both with reference to the equities arising upon after he had received notice of the second incumthat the plaintiff had a lien upon Neale's estate for be put on some of the clauses contained in the 12387. 28. 3d., and interest thereon, in priority to Rem- two nant's incumbrances; or otherwise that the account shall first consider them, irrespective of the ques- and Lord St. Leonards, in Blunder v. Desart, says: between Remnant and Neale might be opened, and tions which arise in consequence of the delay of the which refer to this subject. I his treatise on mortgages, doubted the soundness of it, mous approbation of the profession. Mr. Powell,. in that his security might stand only for what should be plaintiff to register his judgment on two occasions found really due to him. the suit was revived against his son and heir-at-law, registration. I shall then consider how the rights of in all cases on Gordon v. Graham as an authority In 1853 Neale died, and until six years had elapsed from the date of the prior further consideration, whether it would be safe to rely even in the case of a first mortgage, whether legal or equitable, covering furture advances, it deserves who, however, claims no interest in the property. Roupell, Q.C. and Elderton, for the plaintiff, con- impossible, in reviewing this case, not to be struck mortgagee has notice of a second mortgage." This the parties are affected by that circumstance. It is that the advances may be safely made after the first tended that the plaintiff had a prior lien on the estate with the disastrous character of the proceedings so far case has never, I believe, been treated as an authority statutes |