LIMITATIONS, &c. decree to account in a creditor's suit, but obtains an order for liberty to file a charge and obtain a separate report at his own expense, upon an affidavit stating that he was ignorant of the existence of the suit until after the decree to account was pronounced and the report thereun-2. der made, cannot rely on the suit as being his from the beginning, so as thereby to avoid the bar of the 3 & 4 W. 4, c. 27, s. 42. Ibid LIS PENDENS. See CREDITORS' SUITS, 1. PLEADING, I. Bill, 7, II., 1, & III. Demurrer & Plea 2. PRIORITY OF SECURITIES. RECEIVER, I., 5. LUNACY. The committee and heir presumptive of a lunatic, who was absolute owner of a freehold estate subject to a charge of £900, paid off the charge out of his own monies, and had it assigned to a trustee for him. He subsequently applied to the Court for leave to apply the sur plus rents of the estate towards payment of the charge; but there were then judgments affecting the lunatic personally, and the application was refused. When the judgments were paid, the committee, in the lifetime of the lunatic, paid off the charge out of the surplus rents, without any order, but was allowed the amount in passing his account: Held, that between the heir and the next of kin of the lunatic, the latter had no equity to have it kept alive for their benefit. C. Newcombe v. Newcombe 414 MASTER AND REMEMBRANCER PLEADING III., Demurrer and Plea, 2. 1. "Where the Master stating in his report all the facts, draws an inference from those facts, there the Court, having all the information before it, may draw its own inference, even though it should differ from that of the Master. But is there any authority to shew that where the Master has founded a conclusion upon particular facts, which conclusion would be right if there were not other 116 facts in the case, which the Master has not found, an inquiry could be directed as to those facts, at the instance of a party who had not excepted to the report in that particular?" Per Lord Plunket, in Mannix v. Drinan The respondent, in the affidavit made by him to shew cause against the appointment of a receiver upon a judgment on a bond in a penal sum, admitted that the entire sum due by him on foot of the judgment was a certain specified sum exceeding the amount of the principal sum mentioned in the bond, and six years' interest thereon; and did not rely on the 3 & 4 W. 4, c. 27, s. 42, as a bar: Held, that a report finding that the principal money, with six years' interest thereon only was due on foot of the judgment, was erroneous, it being contrary to the admission in the affidavit. E. E. Tristram v. Harte. 386 MISTAKE. See PLEADING. III., Answer, 4, and Demurrer & Plea, 1. MONEY. See SEQUESTRATION, 1. MORTGAGE. See LANDLORD AND TEN- I. Equitable Mortgage. A trader executes a mortgage of real estate, with a borrowing clause, and deposits the title deeds with the mortgagee. He subsequently accepts a bill drawn by third parties, and being unable to pay the bill when at maturity, writes to the drawer, to say that it shall be paid out of the produce of the mortgaged premises, and that he will not take his title deeds out of the mortgagee's hands until the bill is paid. The mortgagee communicates to the drawers their assent to the arrangement:-Held, that the drawers were entitled to an equitable mortgage. C. Ex parte Crossfield, 67 II. Receiver under Statute. As cause against a conditional order for the appointment of a receiver under the Mortgage Act (11 & 12 G. 3, c. 10), the respondent impeached the mortgage, and shewed by affidavits of himself and other 1. persons, very strong grounds to induce the Court to believe it was obtained without good consideration and by fraud. The cause was allowed without costs,it having been the practice hitherto not to appoint a receiver under the Mortgage Act, except where the right of the mortgagee was uncontroverted; and it appearing by the petition in this case, that from the date of the mortgage to the present time (a period of thirteen years), no payment had been made-or demanded, as the respondent alleged-on foot of the mortgage, although the parties were close neighbours all the time. But the Master of the Rolls declared it should not be understood that petitions under this act may be defeated whenever the respondent comes in on motion and impeaches the mortgage; that for the future the conditional order for a receiver shall be made absolute notwithstanding such impeachment, unless the grounds for such impeachment clearly appear; and that the former practice held out a strong temptation to parties in receipt of the rents to make improper statements upon oath, and ought not to be followed. Cosgrave v. Gannon R. 433 2. In reference to Sir W. M'Mahon's observations in Leahy v. Arthure (1 Hog. 92) 'that as the mortgage was impeached, it could be enforced only in a Court of Equity by bill; and that such was not a case within the statute, which applied only where the mortgage was uncontroverted.' "I must say, that I have looked very carefully through the act of Parliament, and that I have not been able to discover in it any thing which should limit its application to those cases only in which the mortgage is uncontroverted; and in my judgment the Court should hesitate long before it would adopt such a construction of this or any other statute, as would have the necessary effect of leaving its intention liable to be defeated in every case, and of holding out, whenever a receiver is sought for, an inducement to the persons in possession to come in with rash attempts to impeach the security, whether there be any grounds for impeaching it or not. But whatever may have been the doctrine of the late Master of the Rolls upon this subject, it is plain that it 3. Per Sir 439 was totally distinct from the ground of his decision in Leahy v. Arthure, which was- -that the petitioner has not a legal title and was only a trustee." M. O'Loghlen, M. R., in Ibid Upon a petition under the Mortgage Act for a receiver, it appeared that the responddent (who was son of the mortgagor, and claimed to be entitled to an estate for life in the lands under a marriage settlement executed in the year 1796, nearly two years after the date of the mortgage) had been left by the petitioner in the undisputed possession of the lands from the year 1796 until the year 1829-a period of thirty-three years; that, in 1819 Chamley obtained an order in the foreclosure cause, instituted in 1804, for the appointment of a receiver, but without notice to the respondent, who, although in possession, had not up to that time been made a party; that, no proceeding under this order was taken to alter the possession, until February 1829, when an order was obtained to renew the order of February 1819, with neither of which orders was the respondent served; that when the receiver then appointed proceeded to interfere, the respondent immediately gave Chainley notice of the irregularity of his proceedings; and Chamley having promised, but delayed, to sign a consent for the discharge of the receiver, the respondent, on the 9th of February 1832, applied to the Court, and upon the case then made, obtained an order for the removal of the receiver, and thenceforward continued in undisturbed possession of the lands; Held, that this was sufficient cause against making the conditional order for the appointment of the rece,ver absolute. E.E. 1837. Chamley v. O'Brien. Cited per Sir M. O'Loghlen, M. R., in Ibid 441 III. Suits for Foreclosure and Sale. See, also, PLEADING, II., 4. III. 1. Bill to foreclose a mortgage vested in trustees for the separate use of a feme covert. The husband, who was made a defendant, is entitled to his costs out of the fund. E. E. Dillon v. M-Carthy 192 2. In a decree for foreclosure and sale, where a minor defendant is entitled to PLEADING. See EVIDENCE, II., 2. 1. "Where the plaintiff filed a bill to impeach a lease made by his ancestor, as contrary to the power of leasing which the latter had, and the defendant, in his answer, relied upon the covenant in the lease as entitling him to compensation out of the assets of the lessor, such an equity cannot be made available in this suit; but the defendant should have filed a cross-bill." Per Lord Plunket, in Steele v. Mitchell 10 2. Semble, that where a bill is filed by two stockholders entitled to separate sums of stock, on behalf of themselves and all other holders of the same stock, praying relief; if it should appear that one of the plaintiffs is not entitled to relief by reason of some equitable circumstances peculiar to himself, the Court may nevertheless, in that suit, give the relief sought, and is not bound to dismiss the bill. E. E. Corballis v. The Undertakers of the Grand Canal 29 3. A sequestrator appointed over a parish, at the suit of certain judgment creditors of the Incumbent, presented a memorial under the 1 & 2 Vict, c. 109, for arrears of tithe composition due before the sequestration issued, and a certain sum was accordingly lodged in the Treasury on account of those arrears; but before payment, the Incumbent died, and, the memorial having stated, by mistake, as it was alleged, that he was the person entitled to the arrears, his personal representative claimed the money in the Treasury against the sequestrator, and the Officer consequently refused to pay either party without the order of this Court. Whereupon, a bill was filed in the names of the sequestrator and the judgment creditors, in whose behalf he was appointed, as co-plaintiffs, against the personal representative of the Incum- 8. bent, stating the foregoing facts, and praying that the sequestrator might be decreed to be the person entitled to receive the money in the Treasury :— Held, that a general demurrer should be allowed to the bill upon two grounds:— first, that the sequestration was not retrospective, but attached the future accruing tithe only; and, therefore, did not entitle the plaintiffs to the money in the Treasury; secondly, that, at any rate, the sequestrator could have had no interest or title in this suit, and should not have been made a co-plaintiff. R. Egan v. Heenan 4. Semble, that where a suit abates by the death of the personal representative, the administrator de bonis non of the deceased may be brought before the Court by bill of revivor, and a supplemental bill is not necessary. E. E. M'Tiernan v. Bell 50 193 5. Wherever an old interest is transmitted, or a new interest vested in a new party, after the institution of the suit, strictly speaking that is supplemental matter, although it occurs before issue joined; but any other circumstance which occurs before issue joined, if it be not the vesting of a new interest or the transmission of an old interest, is the subject-matter of an amendment. A tenant in tail, who comes into esse after the institution of the suit, ought properly to be brought before the Court by supplemental bill; although in Chancery he has been made a party by amendment, where he came into esse before issue joined. E. E. Carnegie v. Johnson 197 6. In a redemption suit, the bill charged that the habere was executed "on or about the 18th of November, and possession was on that day taken." The answer stated "that it is not true, as in bill untruly stated, that said habere was executed on the 18th of November; for that defendant believed it was executed on the 17th of November :"-Held, that the precise day of the execution of the habere was sufficiently put in issue. E. E. Fitzgerald v. Hussey 319 7. Before issue joined, an infant tenant in tail, born pendente lite, may be made a party by amendment. E. E. Greer v. Mercer 385 9. The Commissioners of Charitable Donations filed a bill against A. and B., seeking for a discovery of the estates in fee-simple, fee-tail, and other freehold and leasehold estates of the testatrix, and all her personal estates and effects, &c. The bill set out the will, from which it appeared that the testatrix devised all her freehold and leasehold estates to A. for life, remainder to B. for life; remainder (except as to a certain rent) to the Commissioners of Charitable Donations, &c., upon trust to renew leases and apply rents, &c., and appointed A. and B. executors of her will; and the bill then prayed that an account might be taken of her freehold and leasehold estates, &c., and that the title-deeds relating thereto might be brought into Court. The bill did not state that the personal assets of the testatrix were insufficient for the payment of her debts, but it averred that the defendants had paid a special bequest in her will mentioned. Demurrer to so much of the bill as sought discovery of the estates tail of the testatrix, and of her personal estate and effects (except chattels real) allowed. R. Commissioners of Charitable Donations v. Espinasse 324 Where a party made defendant as assignee of an insolvent debtor, dies pending the cause, a supplemental bill is necessary to bring the new assignee, appointed in place of the deceased, before the Court. The 41st section of the late Insolvent Act (3 & 4 Vic.) applies only to the cases of plaintiffs, and not to defendants. R. Meagher v. O'Mara 471 II. Answer. See, also, EVIDENCE, II., 1, 3. PLEADING.-I., Bill, 6. 1. "Where the plaintiff filed a bill to im peach a lease made by his ancestor, as contrary to the power of leasing which the latter had, and the defendant, in his answer, relied upon the covenant in the lease as entitling him to compensation out of the assets of the lessor, such an equity cannot be made available in this suit; but the defendant should have filed a cross-bill." Per Lord Plunket, in Steele v. Mitchell 2. 10 The defendant by his answer submitted, that by reason of the 3 & 4 W. 4, c. 27, Johnson 197 2. Held, upon demurrer, that the Banker's Act, 33 G. 2, c. 14, is not repealed by the 6 G. 4, c. 42, and that upon the stoppage of payment by a Joint Stock Banking Company formed under the latter statute, a trust is created-in favour of the creditors, and affecting all the property of the shareholders-under the Banker's Act, which may be administered by this Court, at the suit of any creditor against the Public Officer of the Company, instituted without making the other creditors of the shareholders parties;-it being stated in the bill that the co-partnership assets are sufficient to discharge the liabilities of the Company, and it not appearing that the shareholders have any other liabilities than those of their co-partnership. R. Fawcett v. Hodges 232 4. 5. wife's separate estate, leave given to amend the bill by striking out the name of the husband as a co-plaintiff, he having lately become insolvent, and by substituting in his stead the name of a party to sue as the wife's next friend, and also by inserting the names of the husband and his assignee as parties defendant, upon the terms of the proposed next friend giving security by recognizance, with sufficient sureties, for the costs already incurred; the Court declining to require such security for future costs. R. Ring v. Nettles 53 After answer and before issue joined, the plaintiff assigned all his right and interest in the subject-matter of the suit, but refused to allow the assignee to proceed in his name. On motion of the assignee for leave to amend the bill, by striking out the name of the plaintiff and inserting his own instead; Held, that such amendment could not be allowed. R. Magrath v. Heron 476 "All those cases, I think, shew, that notwitstanding the dismission of the bill, the Court may, in a case like the present, make an order on the plaintiff touching his recognizance; and the remaining question is, whether I ought to make such an order upon him as that which has been applied for." Per Sir M. O'Loghlen, M. R., in O'Leary v. Pur |