mortgages to Courts of law; Courts of Equity always had that power of staying proceedings; but the statute requires (sect. 2) that the Defendant should submit to "such order or decree" in the suit as the Court might or could have made therein, if the suit had regularly been brought to a hearing; and that is a perfectly reasonable course. I can do nothing less than that, unless the money has been paid or tendered to the Plaintiff; and, therefore, this application is premature. If the money had been tendered and declined it might have been a different case.

Mr. Amphlett asked that the motion might be allowed to stand over for forty-eight hours, to give an opportunity of making such a tender and then renewing the motion, to avoid the great ex-[xlii]-pense of making a new motion. The proceedings in the suit might continue meanwhile.

Mr. Rolt, Q.C., objected that the costs of the suit, which were necessarily very heavy, could not be taxed in that time.

Mr. Amphlett said that a sum of money sufficient to meet them should be paid into Court for that purpose.

THE VICE-CHANCELLOR. I do not encourage the motion; but it is difficult to see what interest the Plaintiff can have to object to that. I will postpone making the order on this motion until the day after to-morrow, it being clearly understood that I do not delay the proceedings in the suit for a moment.

March 16. Mr. Amphlett read to the Court an affidavit shewing that a tender had been made by the Defendant to the Plaintiff of his principal and interest, and an offer made to pay into Court any sum which might be thought necessary to provide for the costs when taxed. He cited two manuscript cases, Jones v. Tinney and Challie v. Gwynne, of which short statements will be found infra, pp. xlv. and xlvi.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I think that the cases cited go a great deal farther than the case now argued. The only point of difficulty suggested is whether a third mortgagee would have a right to proceed to make this application, some other person having a prior right to redeem. What was wanted in one of those cases was a delivery of deeds, which is not asked here. The Plaintiff in this case is the second or third incumbrancer, and he only asks an assignment of the incumbrances, and does not ask anything about the deeds. In the cited cases no application for possession of the deeds could be made until the second incumbrancer was got rid of, but only for payment of the debt. But the principle upon which all the cases have turned has been, that it is-if not quite a matter of right, so much so that I know of no instance in which it has been refused-that any person brought here as a Defendant may say "I am not desirous of continuing in this suit. Whatever my reason may be is immaterial. I may think that I could conduct the suit better myself. As the Plaintiff, up to the decree at [xliii] least, is the only person harassing me in this suit, and who has authority to obtain an account, I insist on getting rid of him by giving to him everything he asks in the suit." All that the Plaintiff can seek to have is the money in his hands; or, although some cases have gone farther, to have an absolute decree, by which, on non-payment of the money, he can foreclose; and, therefore, upon the former occasion, it seemed to me that the party not having the money, and not having had any tender of it made to him, could not be bound to stay proceedings; nor, although other Judges have thought differently, that I could stop him for an hour in the prosecution of the suit.

With regard to the Plaintiff I am at a loss to see how he can desire to have the suit continued, having his debt and costs and complete indemnity. It is impossible for him to have any ground for resisting what is now asked. It is easy to make suggestions of wrong motives for this motion; but there are also very proper motives which may be suggested for instance, the Defendant may consider that he could conduct the suit more economically than at present. The only motive that has been suggested is that the Plaintiff will be paid somewhat before his time. He might expect that the ordinary time in a foreclosure suit would elapse before his payment. I think, however, that that objection is hardly applicable to the case of a party who files a bill. He must be taken to say-"I wish for my money at once, and now make a demand for it ;" and, then, a Defendant may say "Here is the money, and the suit must be stayed."

With regard to the other Defendants it is strongly urged that they are subjected

to considerable inconvenience; and I think that they are, first in their position as to costs. In all the cases, except Damer v. Lord Portarlington, the orders made seem to carry into effect the doctrine that when a Defendant has bought the rights of the Plaintiff, as one of those rights he may dismiss the bill, as the Plaintiff might do. It may be suggested, as a hardship to the Defendants, that they should be brought into one litigation, and then paid off and subjected to another, considering the difference which every one knows to exist between costs as between party and party and costs as between solicitor and client.

Another reason suggested is that the Defendants have relied upon the Plaintiff in this suit; and it is a hardship upon them that another person should put himself in the Plaintiff's position, [xliv] and dismiss the suit by which these Defendants hoped to obtain their rights. But I think that there is neither authority nor principle for that objection; and the answer to it is, that every party brought into Court as a Defendant must know that, until decree, he has no control whatever over the suit, but is subject to the Plaintiff's caprice in dismissing it whenever he may please. It can be no defence to a motion to dismiss the bill to say that one of the Defendants has bought off the Plaintiff, and done this for a vexatious reason. Every person who wishes to assert a right can only depend upon his own separate exertions by making himself the Plaintiff up to the decree.

Another observation which I may make is that, after all, there is a security against capricious applications of this kind, especially in this case, in which I have had the pleasure of hearing about fifteen counsel, and there are thirty-nine Defendants. The necessity of paying the costs of all those parties is a guarantee that motions of this kind will not be made idly. I may observe, too, in reasoning upon the justice of this rule, that it would be impossible, except by arrangement, for the Defendant to have those costs added to his mortgage debt, for the suit is stayed for his own convenience. The proper order as to the receiver will be according to the form in Davis v. The Duke of Marlborough (2 Swanst. 168), which has the authority of Lord Eldon, and upon which, therefore, it is not necessary to make any observation; he is the Plaintiff's receiver, and the Defendants had nothing to do with it. What may have to be done with the rents in his hands is another question, which seems to have been a difficulty in Damer v. Lord Portarlington (2 Ph. 30), where the order was made without prejudice to the order appointing a receiver.

It was agreed that £1000 should be paid into Court to answer the costs, which were ordered to be taxed as between party and party, and paid out of that fund, and the deficiency, if any, to be made good by the party moving.

March 17. THE VICE-CHANCELLOR said that the money in the hands of the receiver must be paid to the mortgagor, as he was in possession when the receiver was appointed, referring to Wright v. Mitchell (18 Ves. 293).

[xlv] JONES v. TINNEY. Dec. 20, 1845. V.-C. Knight Bruce.

In a suit for foreclosure and redemption by one of several successive mortgagees, upon motion by a subsequent incumbrancer, the bill was ordered to be dismissed with costs against all the other Defendants, without prejudice to any other suit, upon payment by the Defendant moving of a certain sum of money into Court on or before a certain day, such money to be invested and accumulated. The Plaintiff to pay the taxed costs of all the other Defendants, and to have them over from the Defendant moving, who was ordered to pay to the Plaintiff and other Defendants their costs of this application; and the Defendant moving, by his counsel, undertaking to indemnify the Plaintiff against any proceedings which might be taken in the meantime by any party for redeeming the Plaintiff's securities-a reference was directed, to ascertain what was due to the Plaintiff for principal and interest; and the Taxing Master was ordered to tax his costs and those of the mortgagees other than the Defendant moving, who, as well as the Plaintiff, were to have liberty to apply.

This was a bill by David Jones, who was the first mortgagee in person of part, and represented the second mortgagee of the rest of certain hereditaments, against William Henry Tinney, William Fellow Herbert and Robert Vaughan Richards, who represented the first mortgagee of the part of the premises of which the Plaintiff was the second mortgagee, and against the mortgagor and numerous subsequent incumbrancers as Defendants, for redemption and foreclosure, and for delivery to the Plaintiff of the title-deeds of the mortgaged property. A motion was made before answer by Daniel Lloyd Harris, a subsequent incumbrancer, substantially to stay proceedings on payment to the Plaintiff of the amount of his mortgage.

Mr. Kenyon Parker, Q.C., and Mr. Freeling, for the motion.

Sir Francis Simkinson, for the Plaintiff; Mr. Kenyon, for the Defendants, Tinney, Herbert and Richards, the first mortgagees; and Mr. W. M. James and other counsel, for other Defendants, opposed the motion.

An order was made to the effect following:

The Defendant, D. L. Harris, by his counsel, consenting

Let him pay £34,000 into Court on or before the 26th of January 1846.

The money, when paid in, to be invested and accumulated.

Upon such payment, let the bill be dismissed with costs against all the Defendants except the Defendant, D. L. Harris, without prejudice to any other suit; the Plaintiff to pay such Defendants' costs when taxed, and to have them over from the Defendant, D. L. Harris. Let the Defendant, D. L. Harris, pay the Plaintiff and the other Defendants their costs of this application.

And the Defendant, D. L. Harris, by his counsel, undertaking to indemnify the Plaintiff against any proceeding which may be taken in the meantime by any party for redeeming the Plaintiff's securities.

[xlvi] Refer it to the Master to take an account of what is due to the Plaintiff in respect of his securities in the usual manner on the footing of a mortgagee in possession; and refer it to the Taxing Master to tax the Plaintiff's costs of the suit and the other mortgagees' costs; and the Master was to certify what was due to the Plaintiff for principal, interest and costs; and the Plaintiff and Defendant, D. L. Harris, were to be at liberty to apply.

CHALLIE v. GWYNNE. March 11, 1846. Rolls.

In a suit for foreclosure, on motion by a subsequent mortgagee, the bill was ordered to be dismissed on the mover paying into Court a fixed sum on or before a day specified, to answer the Plaintiff's claim, and the costs of the Plaintiff and other Defendants.

This was a suit for foreclosure by a first mortgagee in possession against the mortgagors and subsequent mortgagees, and Lewis Lloyd, who claimed the equity of redemption, under a contract for purchase from the mortgagor.

A motion was made after answer, but before hearing, by David Lloyd Harris, a puisne mortgagee, substantially to stay proceedings on payment to the Plaintiffs of the amount of their mortgages.

Mr. Kindersley, Q.C., and Mr. Freeling, for the motion.

Mr. Turner, Q.C., for the Plaintiff, and other counsel for the Defendant, Lewis Lloyd. The other Defendants except infants appear to have consented.

The sum of £28,000 was fixed upon as sufficient to answer what was due to the Plaintiffs, together with the costs of the suit.

The order was made to the effect following:

:

The Defendant, D. L. Harris, to pay into Court £28,000 on or before the 20th April next.

The money, when paid, to be invested and accumulated.

The Court, thinking it for the benefit of the infant Defendants to waive accounts against the Plaintiffs, and the other Defendants (except the Defendants, D. L. Harris and Lewis Lloyd), waiving such accounts and consenting, order, upon payment of the £28,000 into Court, the bill to be dismissed against all the Defendants except the Defendant, D. L. Harris.

The taxed costs of the Defendant, Lewis Lloyd, to be paid by the Plaintiffs. The taxed costs of the Plaintiffs and of the other Defendants [xlvii] to be paid, and the costs of Lewis Lloyd to be repaid out of the fund in Court.

The Defendant, D. L. Harris, consenting, by his counsel, to indemnify the Plaintiff against any proceedings which might be taken before the determination of the suit for redeeming the Plaintiffs' security, and against any suit by Lewis Lloyd in respect of their mortgage security, or in respect of their accounts as mortgagees in possession, and the Plaintiffs consenting-order the usual account of what was due upon the Plaintiffs' securities, upon the footing of their being mortgagees in possession. Liberty to apply.

If the £28,000 was not paid in within the time specified, it was to be deemed that no order was made on the application. But, in that case, the Defendant, D. L. Harris, was to pay the costs of the application.

[xlvii] BRYAN v. WASTELL. March 15, 1854.

Amendment after Replication. Adding Parties. Order of course.

An order of course may be obtained, after replication, to amend by adding parties where no new issue is thereby tendered.

This was a suit for foreclosure.

Mr. R. W. E. Forster moved, ex parte, after the cause was at issue, for leave to amend, by adding two subsequent judgment creditors as Defendants.

The question was whether this was a motion of course, or to be made in Chambers under 15 & 16 Vict. c. 80, s. 26.

He cited Hitchcock v. Jaques (9 Beav. 192), where the answer raised the objection of want of parties; and it was argued that the cause should have been set down upon that objection, under the 39th Order of August 1841; and the Master of the Rolls held that an order of course to amend by adding parties, obtained after replication, was irregular and must be discharged.

In Brattle v. Waterman (4 Sim. 125) an order of course was considered regular in such a case, notwithstanding the 15th Order of April 1828.

THE VICE-CHANCELLOR Sir W. PAGE WOOD thought that the order might be made upon a motion of course, as no new issue would be tendered by the amendment. See Hayward v. Price, 14 Jur. 1083, where a similar order was made to amend a claim.

[xlviii] MANIERE v. LEICESTER AND KAMP. 1854.

[S. C. 5 De G. M. & G. 75; 43 E. R. 798.]

Traversing Note. Motion for Decree. 15 & 16 Vict. c. 86, s. 15.
57th Order of 8th of May 1845.

After filing a traversing note against one Defendant, the Plaintiff can proceed by motion for decree, as though the traversing note were an answer.

In this case the bill and interrogatories had been served on both Defendants. Leicester filed his answer in due time. Kamp opposed, but filed no answer; and the Plaintiff, at the expiration of the time for answering, filed a traversing note against Kamp. On application by the Plaintiff to the Clerks of Records and Writs for a certificate of the answer and traversing note, preparatory to entering the cause for hearing by motion for decree, the certificate was refused, on the ground that the Plaintiff, by filing a traversing note, had precluded himself from proceeding in any other way than by replication.

Mr. Prendergast now moved that the Clerks of Records and Writs might be directed to issue the certificate. He referred to the 15th section of 15 & 16 Vict. c. 86 and the 57th of the Orders of 1845, as to the effect of a traversing note; and

argued that both the Defendants were in the position of Defendants who had answered; and that the traversing note, being merely an answer, made no difference in the Plaintiff's rights.

THE VICE-CHANCELLOR Sir W. PAGE WOOD thought that the Plaintiff might have entered his cause for hearing on motion, without filing a traversing note, as the time for a defaulting Defendant to answer had expired; and intimated that the proper course was to move to take the traversing note off the file, if the Plaintiff desired to give notice of motion for decree.

March 16. THE LORDS JUSTICES, on the matter being mentioned to them, considered the traversing note to be, for this purpose, equivalent to an answer, and that the Plaintiff might proceed accordingly by motion for decree.

[xlix] PERRY v. TURPIN. April 21, 1854.

Charge of Documents. Exception. 15 & 16 Vict. c. 86, ss. 10, 12, 18.

It is not necessary now, in every case, to insert a charge of documents in a bill as a foundation for the usual interrogatory concerning them.

Exceptions to an answer to the interrogatory concerning documents are now unnecessary, because the discovery may be enforced in Chambers.

The bill in this suit contained no charge of the possession of documents by the Defendant, but interrogatories were filed, including, among others, the ordinary interrogatory as to documents, which the Defendant answered; and this was an exception to that part of his answer for insufficiency.

Mr. Haig, for the exception.

Mr. Rogers, contrà, objected that the bill contained no charge of documents; and that His Honour had intimated in a previous case before him that exceptions to an answer as to documents were rendered unnecessary by the new practice provided by the 15 & 16 Vict. c. 86, s. 18.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. It seems to me that, according to the true construction of the Act 15 & 16 Vict. c. 86, I should not be complying with the expressed intention of the Legislature if I were to hold that it is necessary in every case to find in the bill a charge of the possession of books and papers by the Defendant before this interrogatory can be filed. The 10th section enacts that แ every bill of complaint to be filed in the said Court, after the time hereinafter appointed for the commencement of this Act, shall contain, as concisely as may be, a narrative of the material facts, matters and circumstances on which the Plaintiff relies." Now, the Plaintiff cannot be said to rely upon the fact of the Defendant having relevant books and papers in his possession. He relies upon the facts of which they are evidence, and which he thinks they will help to establish. The section continues, "such narrative being divided into paragraphs, numbered consecutively, and each paragraph containing, as nearly as may be, a separate and distinct statement or allegation, and shall pray specifically for the relief which the Plaintiff may conceive himself entitled to, and also for general relief; but such bill of complaint shall not contain any interrogatories for the examination of the Defendant."

The 12th section enacts that, "within a time to be limited by a general order of the Lord Chancellor in that behalf, the [1] Plaintiff, in any suit in the said Court commenced by bill, may, if he requires an answer from any Defendant thereto, file in the Record Office of the said Court, interrogatories for the examination of the Defendant or Defendants, or such of them from whom he shall require an answer, and deliver to the Defendant or Defendants so required to answer, or to his or their solicitor, a copy of such interrogatories, or of such of them as shall be applicable to the particular Defendant or Defendants; and no Defendant shall be called upon or required to put in any answer to a bill, unless interrogatories shall have been so filed, and a copy thereof delivered to him or his solicitor within the time so to be limited." Certainly, the old practice was to charge the Defendant with having books or papers in his possession or power, before you could interrogate him as to that fact;