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to the plaintiff; the alteration asked was a
direction to pay them to the plaintiff.
Mr. Anderson for the motion.

323
Superior Courts: Rolls.-Vice-Chancellor.
out any
consideration, releases all his
right and title to exercise the power, but
subsequently, by his will, appoints certain
of the settled money amongst his children :
Held, that the release absolutely destroyed
the power.

Lord Langdale observed that the order was in a very uncommon form, but he could not vary it as of course.

Mr. Anderson then suggested that the construction put by the officers upon the general order of the 5th of May was incorrect, and that the fi. fa. might be properly issued, inasmuch as the money was here directed to be paid to a

person.

But Lord Langdale said that was quite a different application from the one made, and he could give no opinion upon it.

Re George Eyre. Dec. 1 & 15.

TAXATION.-AGREEMENT.-SOLICITOR.

An agreement that a solicitor shall be paid a certain sum per day above his usual costs, is not such an agreement as makes it neces sary to obtain a special order for taxation. This was a motion to discharge an order obtained as of course, to tax a solicitor's bill as irregular. The alleged irregularity was, that in obtaining the order no mention had been made of an agreement that the solicitor should be paid for certain services rendered by him at the rate of three guineas a-day above the usual charges.

Mr. Kindersley and Mr. Sheffield for the mo

tion.

Mr. Turner contrà. Re Masters, 4 Dow. P. C. 18; Drax v. Scroope, 2 B. & Ad. 581; E. P. Wheeler, 3 Ves. & B. 21; Re Smith, 4 Bea.

309; Alexander v. Anderton, 6 Bea. 405; Re Whitcomb, 8 Bea. 140; Re Rhodes, 8 Bea. 224; Re Thompson, 8 Bea. 237, and Re Bracey, 8 Bea.

331, were referred to.

Lord Langdale, after stating the object of the motion, said that undoubtedly the court would not, upon a common order for taxation, alter an agreement made between the parties as to the terms of payment, and he should have thought that this agreement was of a nature to interfere with the ordinary exercise of the discretion of the Taxing-Master. It appeared, however, that, according to the decision in Drax v. Scroope, allowed this was not the case: that the client was

upon the taxation to object to the charges, and the solicitor to set them up; and the whole question remained open, notwithstanding an agreement of this nature. But if so, he thought that its existence did not make it irregular to obtain the common order for taxation; the

motion must therefore be refused.

[blocks in formation]

S., having a general power of appointment
amongst his children under his marriage
settlement by a deed-poll executed with-

THE bill was filed in this case by the children of William Smith. It appeared that W. Smith by his marriage settlement, dated Sept. 22, 1807, was jointly with his wife, and in case of his or her death the survivor of thein, was empowered to appoint certain property amongst the children of the marriage; and in case such power was not exercised, the property was to be divided amongst the children equally. The wife died without exercising the power jointly Iwith her husband, and after her death, on Feb. 22, 1842, W. Smith, by a deed-poll, after reciting the power of appointment, and that he "It was witnessed, was desirous of absolutely_releasing and extinguishing such power. that in pursuance of such desire, he, the said William Smith, did thereby absolutely and for ever release and discharge the hereditaments comprised in the said indenture of settlement, and the proceeds of the sale thereof, and the stocks, funds, and securities representing such proceeds, and all lands purchased with such proceeds, and all and every person and persons who were or might become interested therein respectively, from all power and all right and title to exercise the power of selection or distribution of or amongst the children of the marriage of the said William Smith with his said wife, given or reserved to him in and by that such power and all right and title to exercise the same might thenceforth be absolutely released and extinguished and be of no effect, in like manner as if such power had never been given or reserved to him, the said William Smith made and published his will, whereby, Smith." On the 22nd of May, 1843, William after stating that he had the power under his marriage settlement to dispose of by deed, will, or appointment, certain sums of stock, he be queathed to his son William S. Smith, 4,000l., to his son Joseph S. Smith 10,000l., and to his daughter, Anne Naylor, 1011. The question was, whether the deed-poll of February, 1842, absolutely released the power, and consethe power were valid or not. quently whether the bequests in the will under

the said indenture of settlement. To the intent

Mr. Stuart, Mr. Malins, and Mr. Steere, for the validity of the exercise of the power by the will, contended that in all the cases where a deed of the present kind was held to be a release of the power there was a consideration expressed in the deed. Here there was a mere naked deed without any consideration, executed indeed by the testator, but never acted on, and being in fact nothing more than a mere declaration that he would not exercise the power. The authority given by the settlement was of an active description. The deed-poll, on the contrary, was a mere passive nonexercise of the power, and therefore did not

bar it.

324

Superior Courts:- Vice-Chancellor

Mr. Rolt, Mr. Lowndes, and Mr. Elderton, contrà.

The Vice-Chancellor said, he could see no valid objection to declaring that the power was released by the deed-poll of Feb. 1842.

Leheup v. Tinling. Dec. 16, 1847.

DISCOVERY OF DOCUMENTS.-PLEA.

ANSWER.-EXCEPTIONS.

A plea to the whole of the discovery sought by a bill, except a portion of the interrogatory asking for the production of documents relating to the matters in the bill mentioned, shelters a defendant from giving a general discovery of documents asked for by the bill, and an answer having been filed together with the plea by way of denial to the portion excepted from the operation of the plea: Held, that such answer was suffi

cient.

unto say, they denied they had in their posses sion divers deeds, &c., whereby, if produced, the truth of the allegation that the testator left the said complainant, his only child and sole next of kin, would appear, or whereby, if produced, it would appear that the said testator left the said complainant, his child, or one of his children, or that the testator left the said complainant his sole next of kin, or one of his next of kin." To this answer the plaintiff filed exceptions for insufficiency, on the ground that the defendant had not sufficiently answered the two interrogatories above mentioned. The Master, by his report, found the answer insufficient, exceptions were taken to the Master's report, and now came on to be argued.

ants, by their answer, distinctly denied the possession of any such documents; their answer was sufficient, and the Master was there fore wrong in allowing the exceptions.

Mr. Bethell and Mr. Craig, in support of the exceptions, contended that the defendants had covered, by their plea, all the relief sought by the bill, and all the discovery, except a certain portion to which they had answered, and THE bill was filed in this case by Henry the only question which the Master had to deLeheup, for an account against Mr. and Mrs. termine was, whether the defendants had suffiTinling, she being administratrix of M. P. Le- ciently answered that portion of the bill exheup, who died intestate, leaving H. Leheup, cepted out of the plea, viz. so much as sought his sole next of kin. The bill contained the a discovery as to the possession of documents usual interrogatory, asking the defendants whereby the truth of the allegations, that the "whether they had not now, or had not lately, testator left the plaintiff his only child and and when last in their possession, &c., divers sole next of kin, would appear. The defenddeeds, &c., relating to the matters aforesaid, and whether thereby the truth of the matters aforesaid, or some and which of them would not, if produced, appear, and that they might set forth a list or schedule of all such deeds, &c." Mr. Stuart and Mr. Hetherington, contrà, The defendant put in a plea and answer to the contended that they were plainly entitled to bill; the plea was in the terms following:have an answer from the defendants to the "As to the whole of the said bill, except so interrogatory, asking them whether they had much as seeks a discovery from these defend- any documents at all relating to the matters in ants, as to whom M. P. Leheup, the testator the bill mentioned. The answer merely denied in the said bill named did, at his death, leave that they had any documents that would prove his next of kin, if he did not leave the said com- certain allegations in the bill, which was clearly plainant his sole next of kin, and except so an insufficient answer. The plea could not much of the said bill as charges, that these de- shelter them from answering the interrogatory. fendants have now or had, and as seeks a dis- If they condescended to answer at all, they covery, whether these defendants have not now must do so fully. Formerly an objection or had not, and when last in their, his, or her would have been taken to the plea in point of possession or power, divers deeds, &c., whereby form, but the new orders now precluded that. the truth of the allegation in the said bill conThe only course left was therefore to object to tained, that the said testator, M. P. Leheup, the answer, and if that should be declared sufleft the said complainant, his only child, and ficient, there was no remedy whatever. sole next of kin, would, if produced, appear, The Vice-Chancellor said the bill contained and as requires these defendants to set forth in two charges: one was, that the defendants had manner in the said bill mentioned, a list or in their possession certain documents relating schedule, &c. These defendants do plead to to the matters in the bill mentioned; the other the said bill, and for plea say, &c." The an- was, that they had certain documents whereby swer accompanying the plea was in the terms the truth of the matters aforesaid, or some of following:-" And these defendants not waiv- them, would appear. A plea had been put in ing their said plea but relying thereon, and for to the whole bill, except that part of it which better supporting the same for answer to so sought a discovery, whether the defendants much of the said bill as they had not before had in their possession certain documents, pleaded, to say, that the testator did at his whereby the truth of some specific allegations death leave his sister, Mary J. Tinling, the de-contained in the bill would appear, and to that fendant, and another person named M. S. portion excepted out of the plea the defendants Rogers, who was the only child of a deceased had answered. The question appeared to him sister, his only next of kin, and the testator at simple enough. Have you A. and B.? To his death left no other next of kin, and these so much of the bill as seeks a discovery, whedefendants further answering to such part of ther I have A., I plead; and to so much as the said bill as they had not before pleaded seeks a discovery of B. I answer. That part

Superior Courts: Vice-Chancellor.-V. C. Knight Bruce.

of the bill which sought a general discovery of
documents was covered by the plea, and that
part which sought a discovery of documents
whereby the truth of the allegations made by
the plaintiff would appear, was answered by
way of denial. He thought the answer suffi-
cient, and should allow the exceptions to the
Master's report.

Vice-Chancellor Knight Bruce.
Rocke v. Cooke. Dec. 2, 1847.

STATUTE OF LIMITATIONS.

A debtor by simple contract was declared lunatic in 1823, and two years after the creditor brought an action for his debt. The committees of the lunatic filed a bill to restrain the action, and an order was made by consent of the creditor, that the action should be stayed, and that he should be restrained from further proceeding in it, and from suing the debtor at law in any other proceeding, and the creditor was to be at liberty to prove his debt, if he could, in the matter of the lunacy. In 1828, the Master reported that this, among other debts, required reconsideration, and finally he rejected the claim. The lunacy was never superseded, but in 1841, the debtor charged his estates with payment of his debts, and died in 1843. In 1844, the ereditor filed a bill for the administration of his estate, and the court held, that the effect of the Statute of Limitations was not excluded by the proceedings, and dismissed the bill with costs.

THIS suit was instituted by a creditor against the trustees and executors of the will of Sir Gregory Page Turner, for the administration of his estate. The plaintiff, Mr. Rocke, sued on behalf of himself and all other the unsatisfied simple-contract creditors. The facts were, that before 1823, the late Sir Gregory Page Turner gave to the plaintiff certain promissory notes to the amount of 3,000l., in payment of money lent, and pictures and other works of art sold to him. In January, in that year, the solicitor for Sir G. P. Turner wrote to the plaintiff a letter, saying that his debts would be paid with all possible dispatch. In November following he was arrested and confined in the King's Bench Prison, at the suit of another creditor, and in the following month he was declared a lunatic and to have been of unsound mind from July 1, 1823. In Trinity Term, in the year 1825, the plaintiff lodged a detainer against him, he being still a prisoner, and on the 22nd of June following, the committees of the estate filed a bill to restrain the action, and that the notes might be delivered up to be cancelled. In that suit an order was made by consent of Mr. Rocke, dated 27th July, 1825, restraining the action and also other proceedings at law against the lunatic; and it was further ordered that all proceedings in the suit should be stayed, and that Mr. Rocke should be at liberty to carry in his claim against the estate of the lunatic in the matter of the lunacy

325

before the Master to whom that matter stood referred. Mr. Rocke took in his claim, and the Master, by his report dated 9th August, 1828, stated that this, among other claims, required reconsideration, and on a reference back to him he made a further report, not mentioning the claim of the plaintiff, and after the Master's death, a note was found in his handwriting, in which he stated his opinion that the claim ought not to be allowed. The commission of lunacy never was superseded, but Sir Gregory Page Turner made his will on 15th of March, 1841, by which he devised his real estates to the defendants, with directions to pay his debts, except mortgage debts, with interest for one year after they were respectively contracted up to the time of payment; and he appointed the trustees executors of his will. He died on the 6th of March, 1843, and the present bill was filed on the 5th of February following.

Mr. Russell and Mr. Glasse argued that the proceedings in the former suit prevented the operation of the Statute of Limitations, which had been set up by the answer; and further that the order made in the former suit was only partially by the consent of the present plaintiff, and not wholly so as to preclude him from asserting his claim.

Mr. Teed, Mr. Wigram, Mr. Wilcock, Mr. Freeling, and Mr. Webb, for the several defendants, insisted on the Statute of Limitations, and that the plaintiff was conclusively bound by the Order of 1825.

During the argument the following cases were cited and observed on, namely :-Beard v. Hopkins, 1 Sch. & Lef. 441; Exparte M'Dougall, 12 Ves. 384; Bampton v. Birchall, 5 Beav. 67; Davenport v. Stafford, 8 Beav. 503; and Brown v. Newall, 2 Myl. & Cr. 558.

His Honour said, that this was a legal, not an equitable demand, and the plaintiff's title, if he had one, to come to the court for the administration of the alleged debtor's estate was grounded on that legal demand, and the same had been made the subject of an action so far back as 1825, the alleged debtor being then a lunatic and so found by virtue of a commission. That action and all other proceedings at law for the demand had been restrained, absolutely barred by an order in a suit instituted by the committees, which order was made with the consent of the present plaintiff. This court had now no jurisdiction to alter that order, and supposing it could, no case was before it to induce it to do so. A state of things might have arisen, in which, notwithstanding this order, the creditor might have sued in some ordinary court of law or equity, but had such a state of things arisen? The plaintiff had actually and actively availed himself of the Order of 1825, and after various reports and reconsideration of the claim, it was finally disallowed on 26th of August, 1829. From that day until after the death of the lunatic, the alleged debtor, which took place in 1843, the creditor was absolutely quiescent, and the Statute of Limitations clearly disposed of the claim, unless the Order of 1825,

326

Superior Courts: Vice-Chancellor Knight Bruce.

and the proceedings under it, precluded its operation, and his Honour was of opinion that they did not. The bill must therefore be dismissed with costs.

[In Bankruptcy.]

Exparte Stephenson, in re Stephenson. Dec. 13 and 20, 1847.

Mr. Russell and Mr. Malnis appeared for the assignees, and opposed the petition.

Sir J. L. Knight Bruce, V. C.-I will consider the point of marshalling. It is one of some consequence, and I will communicate with Mr. Vizard, and through him the parties will know my opinion. I do not at present know how the order should be prepared in that respect. In the case of Tombs v. Roch, (2 Coll. C.C. 499,)

MORTGAGE OF STOCK-IN-TRADE.-DISTRESS I defined the word marshalling.

FOR RENT.-MARSHALLING.

Subject to that question there must be a

written security, subject to what I am about to
mention, extending only to such furniture, fix-
tures, and stock-in-trade, and property pur-
porting to be included in the assignment as
shop at its date.
now remain, and as were in the house and
what are existing, if any, and the security will
Then it will be inquired
be made available except only on what the

may

have sold.

Where a trader had mortgaged his stock-in-common order, as in the case where there is a trade and goods, and retained possession and added to his stock; and then the landlord distrained for rent and sold part of the goods, and then the trader became bank rupt: Held, that the mortgagee was only entitled to the remaining furniture and stock that existed at the time of the mortgage: Held, also that the mortgagee had a landlord right, as against the assignees, to the benefit of the doctrine of marshalling. The costs will be borne as usual upon a written security, except so far as they have been By a deed dated 30th July, 1844, John increased by claiming the book-debts. So far Stephenson (the bankrupt) assigned to Joseph as they have been increased by claiming these Stephenson (the petitioner) all his household debts, the petitioner must pay them. So far furniture, stock-in-trade, shop fittings, and as they have been increased by claiming the other fixtures in and about his house and shop, stock-in-trade not on the premises at the date and all his book-debts relating to his trade, for when the deed was executed, there will be no securing 500l., (part then due and part then costs on either side. But as it is suggested advanced,) with interest at five per cent., with that the expense of the apportionment of such power of sale, if the money was not paid on the costs will far exceed their value, let the order 1st of October following. The bankrupt car- be, as to costs, in the usual manner as in the ried on his business down to August, 1847, case of a mortgage or a written instrument. and bought and sold stock accordingly; but a Dec. 20th.-Sir J. L. Knight Bruce, V. C.person was put into possession on behalf of The question upon which, having some doubts, the petitioner. On the 3rd of last month the I reserved my opinion in this case, is one of landlord distrained for rent, and the broker marshalling. Certain personal chattels of the was authorized by the petitioner to hold for bankrupt were specifically charged by him, for him as well as for the landlord. On the 16th valuable consideration by way of mortgage, in of August the broker sold part of the furniture favour of creditors. The bankrupt being per and paid the rent and expences, and held the mitted to have possession of those goods, and rest of the property as bailiff for the petitioner. being in possession also of other personal On the following day the petitioner removed chattels, to which the creditor's security did the remainder of the goods, stock, &c. to a not extend, the bankrupt's landlord distrained warehouse, and a fiat in bankruptcy being is- for rent, not upon the former only, but upon sued after the 14th, the same were, on the 19th both sets of goods. The person in possession of the same month, seized by the messenger under this distress was requested by the mortunder an order of the commissioner acting on gagee, and consented, to hold possession of the fiat. The petitioner applied to the com- the goods-at least of the mortgaged goodsmissioner for leave to sell the goods, &c., and for him as well as for the landlord, without to prove for the difference; but he would not prejudice to the landlord's rights. All this was allow the same, saying he had no jurisdic- before the bankruptcy. A sale took place tion so to do. The petition now prayed that under the distress. The distress only took the petitioner might be declared a legal mort- place after the bankruptcy, by which that gagee of the unsold furniture, stock-in-trade, which was the landlord's demand was satis &c., and of the book debts due at the time of fied. The goods which were the subject of the the mortgage deed; that an account might be distress were not all sold, but they included taken of money due and interest on the secu- some, if not all, of those which were the subrity; that the goods might be sold, and that ject of the mortgagee's security, whilst some the petitioner might have leave to prove for the or all of the goods to which the security did deficiency, if any. not extend remained unsold. The disputed Mr. Swanston and Mr. Metcalfe for the peti-point is, as to the mortgagee's right to claim, tion, cited Aldrich v. Cooke, 8 Ves. 382; Jame- as against the assignees, the benefit of the doc son v. Bull, 3 Ter. Rep. 618; Tupfield v. Hill- trine of marshalling; he asserting, and they man, 66 Man. and Gran. 245; Greenwood v. denying, that the goods which were not inChurchill, 1 Myl. and K. 546, and Skipp. v. cluded in his security were first applicable to Harwood, 2 Swan. 586. the payment of the landlord's demand, and,

Superior Courts: V. C. Knight Bruce.-Queen's Bench.

327

consequently, that the mortgagee is entitled, as power of redemption, and the times for payagainst the assignees, to be placed substan-ment in the second mortgage, differed from tially in the same situation as the landlord, those in the first, but the lessor of the plaintiff and to regulate his proceedings in conformity did not take any greater estate in the premises with that title. I have considered the point, than the first mortgagee had done. A verdict and my doubt has been removed. The doc- was found for the plaintiff, with leave reserved trines and the rules recognized by Lord Eldon for the defendant to move to enter a nonsuit, if in Aldrich v. Cooke seem to reach this case the court should be of opinion that the deed which is new in species, but not generically. was not properly stamped. Fraud and reputed ownership were there out Byles, Serjeant, and Mr. Prendergast for the of the question. The assignees and the bank- plaintiff. By the instrument in question, the rupt are as one, and say that no third person's remainder of the term originally granted to rights can intervene. The simple case of a Brickwood was assigned to the lessor of the person having lent goods to one whose land- plaintiff, in consideration of 3501. paid for the lord distrains upon those goods, and also upon purpose of paying off the first mortgage, and the proper goods of the tenant, may be thought by way of further advance. The lessor of the to exhibit more strikingly the present neces- plaintiff does not take any greater estate, nor sity, in point of reason and justice, for judicial does he take any better security than was oriinterference, but does not, in substance, differ ginally granted to the first mortgagee; for in much from other cases. I must direct the the first mortgage Guttridge covenanted, and rules of marshalling to be applied as between the mortgagee and the assignees. It is one of those cases in which I cannot dispose of the details here. I can do no more than state the principle. The counsel on both sides must assist the registrar in drawing up the order.

Queen's Bench.

(Before the Four Judges.)

in the second the widow and son, who represent him, covenanted. The instrument, therefore, is a transfer of mortgage, by which a sum has been advanced by way of further charge, and comes within the provisions of the 3 Geo. 4, c. 117, s. 2, and if so a sufficient amount of duty has been paid. Doe d. Bartley v. Gray, Doe d. Barnes v. Rowe, Doe d. Bowman v. Lewis,c Doe d. Snell v. Tom.d

Mr. O'Malley and Mr. Peacock, contrà. In

Doe dem. Crawley v. Guttridge. Hilary Term, Doe v. Gray, no opinion was given on the point

1848.

TRANSFER OF MORTGAGE.-NEW SECURITY.
-STAMP.

A. mortgaged land to B. for a term of years.
A. died, leaving the property to his wife for
life, remainder to his son in fee. In con-
sideration of the payment of the sum ad-
vanced by B. and a further advance, the
widow and son joined in mortgaging the
property to C. for the residue of the term.
Held, that C., by this instrument, took a fresh
security, and that a deed stamp of 11. 158.
was necessary, and that the ad valorem
duty on the further sum advanced, as re-
quired by 3 Geo. 4, c. 117, s. 2, was not
sufficient.

now before the court, and in Doe v. Rowe it did not become necessary for the court to give any opinion on the point now under discussion. The case of Lamb v. Peace, Brown v. Pegg, and Humberstone v. Jones, show that the provisions of 3 G. 4, c. 117, are not applicable, where, besides the fresh advance of money, the mortgagee under the second deed takes any additional security; and in the last case the Court of Exchequer held that a covenant to pay the original sum and the additional advance, together with a power of sale which did not exist in the first mortgage, rendered the instrument liable to a deed stamp. [Patteson, J. The covenant by the first mortgagor would bind his heirs, and therefore these mortgagors were originally liable.] They were only liable to the extent of assets by descent, but they have now taken upon themselves an additional responsibility.

Lord Denman, C. J. It appears to me that this is the same as if a new party was introduced covenanting for himself, his heirs and assigns, and that the stamp therefore is insufficient.

THIS was an action of ejectment by the mortgagee against the mortgagor. Joseph Guttridge mortgaged the premises in dispute to one Brickwood, for a long term of years for the repayment of 1601. Guttridge died, bequeathing the premises to his wife for life, with remainder to his son in fee. The widow and son afterwards, in order to pay off the first mortgage and to obtain a further ad- Mr. Justice Patteson. I am of the same vance, in consideration of 3501., joined in a opinion. It appears to me that the lessor of mortgage of the premises to the lessor of the plaintiff by this instrument takes an adthe plaintiff for the residue of the term. ditional security. Parties are now introduced The facts above stated were recited in the and made personally bound for the whole sum, second mortgage, on which stamp duty to the who were not so by the first mortgage. amount of 51. had been paid, being the ad Mr. Justice Coleridge concurred. valorem duty on the additional sum advanced, and the progressive duty required by the 55 Geo. 3, č. 184. At the trial the deed was objected to, on the ground that it was insufficiently stamped for want of a deed stamp. The

3 Ad. & El. 89.

b

4 Bing. N. C. 737..
d4 Q. B. 615..
16 Q. B. 1.
16 Law Jour. Exch, 293.

13 Mee. & Wels. 241.
8 Ad. & El. 248.

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