or proceedings that the plaintiff may think fit to institute for the purpose of setting aside the award.

Another fatal objection to setting aside the award in this suit is, that as the suit was to set up and enforce the award, the setting it aside would be so inconsistent with the enforcing it, that I do not think the plaintiff could have prayed for the alternate relief. In 1 Daniell Chan. Prac. (4th Am. ed.) 378, it is laid down that any relief granted under the general prayer must be consistent with the relief specially prayed for. And it is evident that setting aside an award is not consistent with rectifying and enforcing it.

And on page 311 (note), it is stated that on a bill to rescind a contract, the Court could not, under the prayer for general relief, enforce a specific performance of it, and where a bill was filed for a specific performance of a contract of purchase, the plaintiff could not obtain compensation for improvements in that suit, although he had sufficient allegations in his bill, but they had been introduced for another purpose.

Then comes the question whether I should allow an amendment by altering the bill so as to be a bill to set aside the award only. This I would do if I could see that it would do any good; but it is clear that if I did this a great part of the present bill would be immaterial and impertinent, and should not be introduced into such a suit; the summons itself would have to be entirely changed, and the defendant would have to be allowed to disclaim, or not appear, if he chose, or answer, and the depositions now taken could not be used; so that the whole case would have to be gone over again, and the defendant would have to be paid the costs occasioned by such amendment, which would embrace all those discarded and useless proceedings-in fact, substantially all that he had done in the case-and I therefore do not think this course would do any good to either party, and I therefore think the best course for all parties is to do as Lord Lyndhurst did in Sterens v. Guppy-dismiss the bill without prejudice to the plaintiff's right to bring a suit to set aside the award; and as there does not appear

to be anything in the case to take it out of the ordinary rule the costs must follow.

Mr. Travis cited great number of cases showing that the plaintiff, under a prayer of general relief, can have the remedy his equities entitle him to; but all these cases when looked at are subject to this limitation that such relief must be consistent with the specific relief prayed for, and therefore have no bearing on this case.

This decision was affirmed, 23 N. B. 392; and reversed, 11 Can. S. C. R. 156. The case is here printed for the purpose of emphasizing the views of the learned Judge upon the necessity of practitioners describing the representative character of parties to suits in the summons and title of the bill, and which were left unconsidered by either of the decisions on appeal.

In Vassie v. Vassie, 22 N. B. 76, Allen, C.J., considered that if it appear from the allegations in a bill, and the admissions in the answer, that a defendant is sued in a representative character, the failure to describe him as such in the title of the bill is immaterial, and that if an amendment of the title is necessary it should be allowed without costs. The matter was discussed in Fitzpatrick v. Dryden, 30 N. B. 558, but it was unnecessary to give any decision upon it. Palmer, J., sitting in Equity, appeared to think the question was concluded by Vassie v. Vassie. He said: "The first objection raised against the proceedings in this suit is, that as the bill prays for administration of the estate, Mr. Lee, as administrator, should be a party; and that while he is a party in his own right, yet the title does not make him a party as administrator; and if it were not for the case of Vassie v. Vassie, I should have thought the estate was not represented, and that the title of the suit should have shown who were the parties, and that although Mr. Lee was a party in his own right, yet he was not in his capacity as administrator. But the bill in this case, as in Vassie v. Vassie, alleges and shows that he is an administrator, and he is before the Court, and according to the decision in that case that is sufficient." The language of Tuck, J., indicates that in the opinion of that learned Judge an amendment to a bill to charge a defendant in a representative capacity would be allowed. In Hynes v. Fisher, 4 O. R. 78, the plaintiffs individually were members of the Master Plasterers' Association, and the defendants individually were members of the Operative Plasterers' Association. The plaintiffs did not by their writ state in what character they sued; but by their affidavits professed to represent their association, and obtained an injunction to restrain the defendants from inducing the workmen of the plaintiffs to leave their employ. Two members of the defendants' association having induced a workman employed by the Master Plasterers' Association to quit work the plaintiffs moved to commit them for contempt. In refusing the motion on the ground that it did not sufficiently appear that the Master Plasterers' Association were parties to the suit, Wilson C.J., said: "It is a rule that a creditor may sue on behalf of himself and all other creditors. Until decree the suit is in the sole control of the plaintiff creditor, and during that time any other creditor may commence his suit without regard to the

1883.

VERNON

V.

OLIVER.

Palmer, J.

pending suit of the first creditor. When a plaintiff sues on be-
half of himself and of others of a similar class he should so
state his case in that part of the bill which sets out the names
and addresses of the plaintiffs. The omission of such a state-
ment will in many cases render a bill liable to objection for
want of parties: Dan. Chan. Pr. (5th ed.) 216, and the cases there
cited; and in other cases will deprive the plaintiff of his right
to the whole relief which he seeks to obtain. Then, it is said,
a creditor suing for satisfaction of his debt out of the real and
personal estate of his debtor, and not stating that he sues on
behalf of himself and the other creditors,' can only have a de-
cree for satisfaction out of the personal estate in a due course
of administration, and not for satisfaction out of the real
estate: 1 Dan. Chan. Pr. (5th ed.), 302. An amendment, how-
ever, may be made in that respect: ib., or the bill may after
decree be taken to be a bill on behalf of all other creditors in
order to reach the real estate: Woods v. Sowerby, 14 W. R. 9.
The writ of summons, under the practice before the
Judicature Act, was not required to describe any special char-
acter in which the plaintiffs sued; it was sufficient to describe
them in their special character in the declaration. The writ
could not be enlarged in that respect, but could be restricted.
Since the Judicature Act, by Rule 98 of that Act, where there
are numerous parties having the same interest in one action,
one or more of such parties may sue, or be sued, or may be
authorized by the Court to defend in such action, on behalf of
or for the benefit of all parties so interested.' Then, by Rule
13, it is provided that, if the plaintiff sues in a representative
capacity, or if the defendant or any of the defendants, is sued
in a representative capacity, the indorsement shall show, in
manner appearing by the statement in Appendix A hereto, part
2, sec. 5, or by any other statement to the like effect, in what
capacity the plaintiff or defendant sues, or is sued.' If the
statement of claim show the plaintiff is suing on behalf of him-
self and other creditors it is not necessary to amend the writ
by the insertion of those words: Eyre v. Cox, 24 W. R. 317.
In the case in hand the claim indorsed on the writ does not
show the plaintiffs sue in any other character than in their own
personal right; and in the injunction granted the plaintiffs are
described in the like manner as litigants in their individual
capacity. There is an express allegation in the plaintiffs' affi-
davits that the plaintiffs do represent, and are representing,
the Masters' Association, but that is not sufficiently formal to
constitute the action one of that nature. I do not see, therefore,
how it can possibly be maintained that McCord and Jenkins
have done any act against the plaintiffs personally by their in-
terference, nor how it can be said they are guilty of contempt by
interfering with the Master Plasterers' Association, when that
body is not a party to these proceedings by representation or
otherwise. The case of Lund v. Blanshard, 4 Hare, 290, shows
an amendment of the writ of summons, or at any rate of the
claim endorsed upon it, would require to be made to enable the
plaintiffs to proceed against the defendants, or any others, for
acts of interference with the Masters' Association; and the in-
junction would, of course. have to be amended in like manner
In In re Tottenham, [18961 1 Ch. 628, it was held that if the writ
in a creditor's action for the administration of real and personal
estate does not show that the plaintiff is suing on behalf of all
the other creditors of the deceased, this fact ought to appear in
the title of the statement of claim, and not merely in the body
thereof; and Eyre v. Cox, supra, was explained. Where a

66

bill was filed by A., B. and C., for and of on behalf themselves and all the other partners or shareholders in the company called, etc.; but there was no distinct allegation in the bill that A., B. and C., were partners or shareholders, it was held that there ought to have been an allegation of the parties filling the character in which they professed to sue: Banks v. Carter, 12 Jur. 366. In Lee v. Head, 1 K. & J. 625, Wood, V.C., held that where a creditor who had filed a bill in an administration suit was named as plaintiff in a special case, the record should not be entitled, 'Between such creditor on behalf of himself and all other creditors of the deceased, plaintiffs, and the defendants," such creditors not being before the Court, and therefore not bound by the proceedings. Where plaintiffs sued on behalf of themselves and all other the holders of the mortgage debentures issued by the defendant company and its predecessors in title," Kekewich, J., said: "That seems to me to be about as wrong a title as well can be. I enter an emphatic protest against such a description as 'predecessors in title' of a company or person as a foundation of a title to relief. The plaintiffs must specify the class on behalf of whom they sue, and anything so vague as this description will not be allowed, as far as I am concerned. The class on whose behalf the plaintiffs really sue is the holders of debentures issued by the limited company in its full description. If they like to add ' now dissolved' they can, but I must have the records amended so as to give the proper description of the plaintiffs before I can get any further. For the present purpose I treat that as done. Possibly it may be right to amend the statement of claim also, not only as regards the title, but also 'n other respects": Marshall v. South Staffordshire Tramways Co., [1895] 2 Ch. 36.

LAWTON v. HOWE ET AL.

Mortgage--Assignment-Payment of mortgage debt to original mortgagee-
Absence of notice of assignment-Registry Act, c. 74, C. S. N. B.

A. gave B. a mortgage on land to secure payment of A.'s bond held
by B. Subsequently A. sold the equity of redemption to C., and
B. assigned the bond and mortgage to the plaintiff by a regis-
tered transfer. Afterwards C. obtained an advance of money
from D. by a mortgage of the equity of redemption, the money
being applied by D to paying B. the amount of the original mort-
gage, and B. discharged the mortgage on the records. Neither
C. nor D. had notice of the assignment of the bond and mort-
gage to the plaintiff. In a suit by the plaintiff for the fore-
closure and sale of the mortgaged premises :-
Held, that payment by A. or his assigns to B. of the indebtedness owing
upon the bond without notice of the assignment of the bond and
mortgage to the plaintiff entitled A. or his assigns to a reconveyance
of the mortgaged premises, and that the registration of the assign.
ment of the mortgage did not affect A. or his assigns with notice.

The facts are sufficiently stated in the judgment of the Court.

1883.

July 11.

1883.

LAWTON v.

HOWE et al

Palmer, J.

Argument was heard June 7th, 1883.

I. Allen Jack, for the plaintiff.

C. W. Weldon, Q.C., and A. H. DeMill, for the defendants.

Thomas Maher gave a bond to the defendant Howe, and as security gave a mortgage on land in St. John; afterwards Thomas Maher conveyed his equity of redemption in the mortgaged premises to Daniel Maher. Howe afterwards assigned the bond and mortgage to the plaintiff, which assignment was duly registered; afterwards Daniel Maher mortgaged the equity of redemp tion to the Building Society to pay off the Howe mortgage, and the Society paid the money to Howe, neither party having any actual notice of the assignment to the plaintiff. Howe discharged the mortgage on the records, and afterwards the mortgaged premises were conveyed to the defendant Nelson, and this bill was filed for foreclosure and sale of the premises.

The first question is whether a mortgagor is obliged to pay the mortgage to the assignee, the plaintiff. It is clear law that what the mortgagor agreed to do was to pay the bond debt, and this, and this alone, is his legal obligation and this he has strictly performed, and nothing is clearer than that such payment would be a good discharge in law. When, however, the debt was assigned, if he had had notice of it, equity would compel him to pay the assignee; and consequently, any payment afterwards to the mortgagee would not be good.

The effect of a mortgage or conveyance of real estate as security for the payment of money is to vest in the mortgagee such estate until the debt is paid, and in equity as soon as the debt is discharged, the estate must be reconveyed. These considerations show that the debt is the principal thing in a mortgage. There can be no pretence that the mortgagor had the requisite notice.