Ellames (a), the Chief Baron of the Exchequer says,
"A deposit of title-deeds as security for a debt, is
now settled to be evidence of an agreement to make a
mortgage, and such agreement is to be carried into
execution by the Court." The decree in that case was,
that the defendant should pay, or stand foreclosed and
convey. In Ex parte Wright (b), Lord Eldon says,
that a deposit of title-deeds was evidence of an agree-
ment for a mortgage, and that an equitable title to a
mortgage was, in equity, as good as a legal mortgage.
Such being the light in which courts of equity view
equitable mortgages by deposit of title-deeds, it would
seem to follow that the remedy to be afforded to such
mortgagees should, as nearly as possible, correspond
with that to which legal mortgagees are entitled; and,
accordingly, from the search which I have directed to
be made as to the form of decrees upon such subjects, I
find that such has been the principle adopted.
Newton v. Aldous (c), the decree, which appears to have
been penned by Lord Eldon himself, was as follows:
"Declare that the title-deeds relating to the estate in
question, having been deposited by the said John Aldous,
the bankrupt, in the hands of the plaintiff, the plaintiff
is entitled to be considered, in this Court, as if he was a
mortgagee of the premises therein comprised, and de-
cree the same accordingly, and refer it to the Master
to take an account of what is due for principal money
advanced on the said deposit, and for interest thereon,
and to tax his costs of this suit. And declare that such
principal, interest, and costs, are to be considered as a
charge upon the said premises. And upon the defend-
ant, William Tolley, paying unto the plaintiff, within six
months after the Master shall have made his report at,
&c.,

(a) 2 Anst. 428.
(b) 19 Ves. 255.

VOL. II.

Ff

(c) 18th of July 1804.

In

1834.

PARKER

v.

HOUSEFIELD.

1834. PARKER

ย.

&c., let the plaintiff deliver up all deeds, &c. But declare that in default, &c. plaintiff will be entitled to the said premises, free and clear of all right, title, HOUSEFIELD. interest, and equity of redemption of, as, and to the same, and to have an absolute reconveyance thereof accordingly. And in that case, let the defendant execute such conveyance thereof to the plaintiff, to be settled by the Master in case the parties differ; with liberty to apply," &c. In Lavender v. Roberts (a), Warren v. Barling (b), and Langdon v. Wilmot (c), the decree was in the same form.

In Meux v. Ferne (d), and Spring v. Allen (e), a sale was directed instead of a foreclosure; but in both these cases the mortgagor was allowed six months to pay the debt.*

It appears, therefore, that, upon the only point before me, namely, whether, in case of an equitable mortgage by deposit of title-deeds, the mortgagor shall be allowed six months to redeem, the precedents are uniform in favour of his being allowed that time; and that such practice is strictly conformable to the principles and doctrine of the Court upon the subject.

I am, therefore, of opinion that the decree must be drawn up, giving the mortgagor six months to redeem.

1833.

HARRISON v. NETTLESHIP and FULLER.

ROLLS.

Nov. 19. 25.

A court of jurisdiction to

equity has no

the case in

THE Defendant Fuller purchased an estate of Nettleship for the sum of 1452l., and not having at command more than half of that sum, the Plaintiff, Harrison, relieve a plaintiff against a agreed to become his surety, and gave three promissory judgment at notes to the Defendant, Nettleship, for sums amounting law, where together to the remaining moiety of the purchase-money. equity proThe two Defendants, Fuller and Nettleship, afterwards had extensive dealings together, and the bill alleged that, in the course of such dealings, the Defendant Nettleship was at one time indebted to Fuller in a larger sum than the amount of the promissory notes given by the Plaintiff.

Fuller having become insolvent, and an action having been brought by Nettleship against Harrison, to recover the amount of two of the promissory notes which remained unpaid, the bill was filed by Harrison for an injunction against that action, and for an account. The common injunction for want of answer had been obtained, and upon the answer coming in, the injunction was dissolved upon motion before the Vice-Chancellor, and the Plaintiff afterwards appealed to the Lord Chancellor, who affirmed the Vice-Chancellor's decision. The action at law was afterwards tried, and Harrison pleaded a set-off, insisting that the balance which he alleged to have been at one time due from Nettleship to Fuller was to be considered as a satisfaction for the notes on which the action was brought; but his plea failed, and judgment was obtained against him in the action.

ceeds upon

a ground equally avail

able at law

and in equity; but the plainestablish some special equitable ground for relief.

tiff must

1833.

HARRISON

V.

NETTLESHIP.

The question raised in the cause was, whether a Plaintiff in equity, who had pleaded a set-off in an action at law, and failed, could sustain a bill, without a special equitable ground, for an account relating to the same transactions in respect of which he had pleaded a set-off.

Mr. Bickersteth and Mr. Barber, for the Plaintiff.

There are many cases in which a court of equity will relieve after verdict, as where the plaintiff at law has recovered a verdict against conscience; and this relief will be granted, even where the equity, upon which it is claimed, might well have been used as matter of defence at law; Countess of Gainsborough v. Gifford. (a) In Hankey v. Vernon (b) it is decided, that an admission by the defendant in equity of a material fact which the plaintiff in equity failed to prove at law, is a ground for an injunction; and it is here admitted by Nettleship, in his answer, that in the course of the transactions between him and Fuller, the balance in favour of Fuller amounted to a much larger sum than that afterwards claimed by Nettleship against the surety. In Chennel v. Churchman(c), where the defendant had put in suit against good conscience certain promissory notes given by the plaintiff, the Court granted a perpetual injunction. O'Connor v. Spaight (d), shews that the Court has jurisdiction to entertain such a bill as the present. In that case, there being complicated accounts between a landlord and tenant, and the landlord having brought ejectment, the tenant filed his bill for an account upon the footing of the dealings between him and his landlord. Judgment was given for the plaintiff at law in the action of ejectment shortly after

(a) 2 P. Wms. 424.
(b) 2 Cox, 12.

(c) 3 Bro. C. C. 16. n.
(d) 1 Scho. & Lef. 305.

after the filing of the bill; but Lord Redesdale thought the plaintiff's case a proper case for equitable relief.

Mr. Pemberton and Mr. Koe, contrà.

All the cases cited turn upon the circumstance, that there was some special ground for equitable relief; and here there is no special ground. O'Connor v. Spaight has some analogy to the case before the Court in the circumstances under which the bill was filed; but in that case no set-off was pleaded in the action at law, and the judgment was given by consent. Unless the Plaintiff can shew some special ground for relief, the Court will not interfere against the verdict at law. The Plaintiff had abundant opportunity before the trial at law to establish his equity, if he had any; but the ViceChancellor and the Lord Chancellor were both of opinion, that there was no ground for continuing the injunction. The case, therefore, is wholly distinguishable from those in which relief has been granted, upon some special equitable ground, against a judgment at law.

The MASTER of the ROLLS.

A court of equity has no jurisdiction to relieve a plaintiff against a judgment at law, where the case in equity proceeds upon a ground equally available at law and in equity, unless the plaintiff can establish some special equitable ground for relief. In the case of the Countess of Gainsborough v. Gifford, the defendant admitted in his answer that he had recovered from the plaintiff a larger sum than was in conscience due to him. In Hankey v. Vernon (a), the plaintiff alleged that he had, since the judgment obtained against him by the assignee of the bankrupt

(a) 3 Bro. C. C. 313.

1833.

HARRISON

v.

NETTLESHIP.