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an account, and the referring of it to the master, and on payment of the balance for re-delivering possession on one application, where there has been no objection to that course.

453. A mortgagee in possession will be entitled to such expenses as he shall incur in necessary repairs or other acts for the preservation of the estate mortgaged, and may add them to his debt.-(Powell, 249.) But if extraordinary expenditure is necessary for the preservation of the property, he should previously apprize the mortgagor. (Trimleston v. Hamill, 1 Ball & Bea, 377; Powell by Coventry, 1037 n.) And he will be made to account for loss occasioned by his gross negligence in respect of bad cultivation and non-repair of the mortgaged premises.-Wragg v. Denham, 2 Y. & C. 117.

454. A mortgagee in possession will not be obliged to account according to the value of the lands, viz. he will not be bound by any proof that the land was worth so much, unless it can likewise be proved that he actually made that sum by it, or might have done had he not been guilty of fraud or wilful default, or if he turned out a sufficient tenant that held it at so much rent, or refused to accept a sufficient tenant who would have given so much for it; for it is the laches of the mortgagor, that he let the lands lapse into the hands of the mortgagee by the non-payment of the money, and when it doth he is only a bailiff for what he doth actually receive, but is not bound to the trouble and pains of making the most of what is another's.-Powell, 949; Hughes v. Williams, 12 Ves. 493.

455. Where mortgagees in possession manage the estate themselves, there is no allowance to be made for their care and pains, but if they employ a skilful bailiff, they will be allowed such sums as they have paid him, for a man is not bound to be his own bailiff. (Powell, 1027.)

456. It is a general rule, founded on the jealousy which Courts entertain at the interference of the mortgagee with the estate, that if he be in possession, and receive the rents, he shall be allowed nothing for his trouble. (Bonithon v. Hockmore, 1 Vern, 316. French v. Baron, 2 Atk. 120.) But if the estate be at such a distance from the place of his residence, as that he must necessarily have employed a bailiff, if the property had been his own, he will be allowed such sums as he actually paid to a bailiff.-Per Lord Chancellor in Godfrey v. Watson, 3 Atk. 518. Powell by Coventry, 359 n.

SECTION IV.

Of Irregularity in the Proceedings.

457. It was the intention of the Tithe Commutation Act, that after the Commutation of the Tithes in any parish or district, the validity of the proceedings should never be questioned, s. 66. 95, and 10 & 11 Vic. c. 104, s. 2; and, therefore, to enforce payment, the owner of the Rent-Charge should possess the summary remedy of distress, if any sufficient distress could be found; and, if not, then that he should, by a summary process, recover possession of the land, until payment of the arrears and costs. Under this latter proceeding, if there is no sufficient

distress, the only question to be inquired into is the amount of arrears.

458. In the course of the latter proceeding, however, some irregularities may occur, as that there was a sufficient distress,-or the writ to assess the arrears may not be supported by the affidavit,—or the case stated thereon may not disclose sufficient facts, the copy of the writ served may not correspond with the original,—or the service may not have been made according to the statute,-or due notice may not have been given of the executing of the writ, or there may be some error in the execution of it, or in the inquisition,—or in the writ of possession. In any of these cases, application may be made to set aside the irregular proceeding.

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459. To set aside proceedings for irregularity, it is the practice of the Courts that parties should apply without delay, and that rule was considered by the Court of Queen's Bench as applicable to proceedings under the Tithe Commutation Act in re Camberwell, Allotment 606, Hilary Term, 1843. The Courts, however, draw a distinction between irregularities and process absolutely void.

460. There seems to have been some question whether the Court has any jurisdiction to set aside the proceedings under the Tithe Commutation Act. On an application to the Court of Queen's Bench, in the case of Camberwell, Allotment 232, Easter Term, 1841, to set aside the proceedings on account of there being a sufficient distress, the Court intimated that they had not jurisdiction, and referred the counsel to the judge who made the order; and

in the other case before stated, No. 606, the late Attorney-General Sir Frederick Pollock said, that in a case in the Court of Exchequer a few days previous, the Court held that they had not jurisdiction, and he took the objection in the case of Allotment 606; but in the latter case the rule was discharged on the merits, without the point being decided. In Camberwell Rent-Charge, No. 585, on an application to Mr. Justice Williams at chambers, in July 1841, to set aside the proceedings for irregularity, that learned judge thought he had no power to interfere, the order for the writ not having been made by him. In the case of the Hamersmith Rent-Charge, Hilary Term, 1849, Mr. Baron Platt referred an application to set aside the proceedings, on the ground that there was sufficient distress, to the Court; and the Court of Exchequer afterwards entertained the application, but has not yet given a decision on the merits. In this case the order for the writ had been made by Mr. Baron Platt.

461. The distinction should probably be this: where the objection is to the sufficiency or the truth of the affidavit, or to the order of the judge, the application should be to the judge who made the order, the statute vesting the power of making the order in a single judge; but if the objection is to the writ, or subsequent proceedings, there is no reason why the application should not, in the usual way, be made to the Court, if in term time; or if in vacation, to any of the judges at chambers. But per Mr. Justice Williams and Mr. Justice Wightman, if the party had an opportunity of applying to the

Court, but failed to do so, a judge ought not, in a case of this kind, to be called on to interfere at chambers.-Re Camberwell Rent-Charge, Allotments 1008 and 606.

462. Where the owner of the Rent-Charge is in possession for non-payment of the Rent-Charge, and an application is made to set aside the proceedings, it is obvious that it will be very important, if the court or judge is about to grant the application, to request that the party be required to undertake not to bring an action. And if the application be made by the land-owner, he should be required to undertake on behalf of his tenant as well as himself.

CHAPTER XII.

OF PAYMENT OF THE RENT-CHARGE AFTER THE MAKING OF THE AWARD OR AGREEMENT, AND BEFORE THE CONFIRMATION OF THE APPORTIONMENT.

463. UNDER the Acts of the 6 & 7 William IV. c. 71, s. 67, and 7 W. IV. & 1 Vic. c. 69, s. 11, and 2 & 3 Vic. c. 62, s. 10, the lands of a parish were to be discharged from Tithes, and the Rent-Charge commence (except in certain cases) on the 1st January, 1st April, 1st July, or 1st October, next preceding or following the confirmation of the Apportionment. But much delay was often occasioned in settling and adjusting the Apportionment before the same could

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