EVE J. 1909 TON & CO., LIMITED ť. Аввотт. and meaning of the covenant upon which they are suing. They contend that the order being a consent order is in the nature of WORTHING an agreement between the first mortgagees, themselves as the second mortgagees, the third mortgagees, and the mortgagor, and that upon the true construction of the order the mortgagor was privy to and concurred in all that the order effects; that an order which is prefaced by the words "by consent" cannot be treated as being, or as embodying, separate and independent agreements between the plaintiff and the several defendants; and that, properly construed, such an order is, in effect, an agreement embodying terms to and in which all the parties to the action subscribe and concur. I am inclined to think that is the true construction to be placed on a consent order, and that, when the parties to an action agree an order purporting to be a consent order throughout, they are, in effect, putting their hands to an agreement which must be treated as embodying terms to which all assent and by which all are bound. It may be, of course, that some of those terms affect individual defendants more than they do other defendants, or that some of the terms, as we find in this order, affect some of the defendants only; but I think even in those cases all parties to the order must be treated as having assented to and concurred in any special terms affecting particular parties contained in the consent order. It is urged, however, that in this case the consent order of June 17, 1904, ought not so to be construed, and evidence has been produced and correspondence read going to rebut such construction. I doubt very much whether, for the purpose of construing the order, I am entitled to consider the evidence or correspondence, but they are not very material, as they refer to matters which took place a considerable time before the order was made, and if any circumstances are to be relied on as affecting the construction they should, I think, be circumstances subsisting at the time when the order was made, and not circumstances which may have materially changed in the interval between their happening and the date of the order. I have no evidence of the circumstances subsisting at the date of the order, and as a matter of construction I should be prepared to hold it to be an order which binds the mortgagor, an order in which she concurred, and an order therefore by which the mortgagees could not, by agreeing to an immediate foreclosure absolute, be held to be doing something contrary to the wishes of, or unauthorized by, the mortgagor. case. EVE J. 1909 WORTHING LIMITED ABBOTT. But I am not going to determine this part of the case on that TON & CO., point alone. It is quite possible that another Court may take a different view of the construction of this order. Moreover, the determination of that point would, after all, leave undecided the important question which has been argued strenuously before me, and which I think it is my duty to deal with, as it arises on the The question arises in this way. The defendants contend that a puisne incumbrancer who voluntarily submits to an order absolute being made when the summons is issued, and without insisting upon his right to have a time allowed to him wherein he may redeem the prior incumbrancer, thereby precludes himself from afterwards suing on the covenant; and in support of that contention they cite and rely upon a number of cases which certainly have determined this, that if the mortgagee by voluntarily doing something which he is unauthorized to do, either by the express terms of the contract between him and the mortgagor, or by implication arising from that express contract, puts it out of his power to reconvey the mortgaged premises to the mortgagor on payment, he cannot afterwards sue on the covenant. The question is, does the conduct of the mortgagees in this case fall within the principle established by those cases? The puisne incumbrancers when served with this summons might have adopted any one of three courses. They might have entered no appearance; that would have been a voluntary act, an act of omission, not of commission. They might have appeared and insisted upon their strict rights. The effect of that would have been that the first mortgagees, the plaintiffs, would have had to bring in their accounts, the accounts would have been vouched in chambers, a certificate would have been made, and a period of six months would have had to elapse before the plaintiffs would have obtained the full relief which they were seeking. Or, thirdly, they might have adopted the course which was in fact adopted in this case. Have they by so doing put themselves in a worse position than they would have been in had they adopted either of the other two alternatives? Are puisne EVE J. 1909 WORTHING incumbrancers, although satisfied of the insufficiency of their security and of the accuracy of the accounts of the prior incumbrancers and although they never intend to redeem the TON & CO., prior incumbrancers, bound to insist upon the accounts being taken and the formality of a period wherein they may redeem being fixed in order to preserve their right under the covenant? LIMITED ABBOTT, I have not heard it suggested that if the present plaintiffs had adopted either of the first two alternatives they would have prejudiced themselves with regard to the covenant. If they had not appeared, the proceedings would have had to go on, but they would then have been of a very simple character: the mortgage would have been proved, the account taken, and according to well-settled practice a period of six months would have been fixed for redemption. That is to say, if they had adopted the first alternative, at the end of the six months after certificate they would have been foreclosed in their absence, but their right thereafter to sue on the covenant is not in that case contested. If they had adopted the second of the two alternatives, and had appeared in the proceedings and insisted on everything being done strictly, what would have been the practical result to them? They would have incurred certain costs which they might add to their security, and for which the mortgagor might he made liable if he took any steps to redeem, but is there any obligation by which the holder of an insufficient security is compelled to increase the amount owing on that security by incurring unnecessary costs, if he wants to preserve his right to proceed against his debtor on the covenant? It is conceded that if he incurs the costs and puts the prior incumbrancer to the expense of taking and verifying the accounts, although he never intends to redeem, he is still entitled to his remedy under the covenant, and I cannot see on principle why he should be placed in any worse position simply because he averts unnecessary delay and expense and says at once that he never intends to redeem and does not ask for an opportunity of doing that which he never intends to do. In the proceedings of 1904 it was open to the mortgagor, who was a party to them, to insist upon the accounts being taken and upon a proper time for redemption being provided, and the only effect of the conduct EVE J. 1909 WORTHING LIMITED v. of which complaint is now made was that the puisne incumbrancers abandoned their right to redeem, and, I must assume, did so because they were satisfied that it was a right of which they had no intention of availing themselves. I do not myself TON & Co., see how in so doing they in any way prejudiced the mortgagor, and accordingly, apart altogether from the form of the order with which I have already dealt, I do not think there is anything in the conduct of the mortgagees, leading to the making of the order, which disentitles them to sue on the covenant. I hold, therefore, that the right to sue on the covenant is subsisting. The next question is whether the plaintiffs are entitled to maintain this action, having regard to the terms of the covenant which they are seeking to enforce. [His Lordship read the terms of the covenant, and continued:-] -] On behalf of the defendants it is alleged that the demand in writing, whether it be made by the company or by agents acting on behalf of the company, must be left at the mortgaged premises. On the whole I think that is the right construction. I think it would be almost nonsensical to read the covenant in this way, that the company might make the demand in writing without leaving it at the mortgaged premises, but that agents for the company could only make it effective by leaving it at the premises. I think, however, that construction cuts both ways, and on the whole I think it goes more against the defendants than in their favour, because, if that construction be right, it seems to me all the mortgagees had to do in order to enforce the covenant was to leave a demand in writing at the premises, quite irrespective of whether there was anybody on the premises representing the mortgagor, or whether the mortgagor was alive or dead, or whether, in fact, the premises still continued to be a publichouse. The real object with which the covenant was so framed was to protect the mortgagees and to enable them to enforce the covenant without personal service by delivering the demand at premises of a character from which occasionally mortgagors are apt to absent themselves without reasonable cause. So reading it, the question is whether, first of all, there has been any demand, and, secondly, whether I ought to hold that it is an essential part of the demand that it should be made on the Аввотт. EVE J. 1909 TON & CO., LIMITED v. ABBOTT. premises. I think that effect is given to the true intention of the parties to the deed by bringing home to the mortgagor, or WORTHING- persons claiming under her, that the mortgagees are demanding their money and are about to take proceedings to recover it. [His Lordship referred to the demands which had been made by letter, and continued:-] I think in substance the condition has been complied with, and that the action is well founded. It has been pressed upon me that this is a very hard case, but in determining this case I have only to determine the legal rights of the parties. So far I have dealt with the matter as though it were a claim against Mrs. Culver or her estate. In one sense it is a claim against her estate, because, whatever the plaintiffs recover, they cannot recover anything beyond that which now represents, or which has represented, the estate of Mrs. Culver. Her estate falls under two categories. First there is a sum of 3500l. representing the residuary personal estate; that is primarily liable to discharge the debt: it is in the hands of five of the defendants, and as against each of those five defendants the plaintiffs say they are entitled to recover that portion of the residuary estate which found its way to each of them. In that I think they are right. Then, further, there is some real estate of the value of 2500l.; that is in the hands of various other defendants, and to the extent to which the residuary personal estate is insufficient to pay the debt of the plaintiffs they are entitled to follow the real estate and by process of law to realize, if they can, the balance of their debt out of it. It appears, unfortunately, to be the case that if the whole of the residuary personal estate and also the whole of the real estate is taken it will not be enough to satisfy the debt, and accordingly the plaintiffs' claim will not be paid in full even if they recover and extend the whole of the estate left by the mortgagor. In my opinion they are entitled to such a judgment as will enable them to reach all the estate. The material parts of the order subsequently drawn up are as follows: This Court doth declare that each of the defendants Frederick George Henry Abbott, Arthur William Abbott, Henry Octavius Abbott, Charles |