1869 v. OLDHAM. contradistinction to "occasional." The defendant was the regular THE QUEEN minister of the congregation of Pangbourne, inasmuch as he performed the duty on Sundays regularly for a long series of months, and not merely occasionally in the absence of the regular minister. The defendant had latterly given up his business and devoted himself to the duty regularly. BLACKBURN, J. I am of opinion that the rule must be discharged. Section 28 speaks of a "regular minister," not merely a minister as a clergyman, but regular minister, in an analogous position to a beneficed clergyman. The statement in the affidavits on which the rule was obtained was, that the defendant was de facto the regular minister of a dissenting congregation, and this called for an answer; and is, I think, answered by the affidavits in reply. I attach no weight to the statements as to the breach of the trust deed. It appears that the defendant had been asked in September, 1867, to become the minister of the congregation at Pangbourne, and had refused; but he had subsequently preached every Sunday from the 25th of March to the 24th of June, in 1868, and had afterwards agreed to do so for the rest of the year. If a salary had been shewn to have been received, or if there had been anything in the nature of a contract, that would have gone far to shew that he was the regular minister; but as it is, I think there is nothing to shew this, so as to call upon us to allow an information to be filed, on the ground that at the time of the election he was disqualified. MELLOR, J. I am of the same opinion. It appears to me that the legislature had an object in view in using the word "regular," and that the disqualification was not intended to apply to a person occasionally preaching, but to a person who is appointed to be the minister of a particular congregation, and not merely asked temporarily to hold the office. In the present case it appears from the terms of the trust deed that it was necessary, for a formal appointment of the regular minister, that he should hold particular doctrines, and the defendant's doctrines were not such as would enable him to take the appointment. There was nothing more than a temporary invitation, not an appointment or contract; it does appear that any salary was paid, though probably the defend not 1869 ant received a present from the congregation. Under these circumstances, I do not think there is any ground for saying that the THE QUEEN defendant was disqualified as the regular minister of a dissenting congregation. HAYES, J. I quite agree. At the time of this election the congregation at Pangbourne had no regular minister; the defendant only agreed temporarily to supply the place until they could get a permanent minister. He was therefore not the regular minister. Attorneys for relator: Child & Son. Rule discharged. V. OLDHAM. [IN THE EXCHEQUER CHAMBER.] MORTON AND OTHERS v. WOODS AND OTHERS. Landlord and Tenant-Effect of Mortgage not executed by Mortgagee with Attorn- Held (affirming the judgment of the Courtof Queen's Bench), that the intention Feb. 3. tur 465 1869 MORTON V. WOODS. of the parties, as evidenced by the deed, was to create a tenancy at will only, and not a term of ten years; that a deed being therefore unnecessary, the tenancy was created by the assent of the parties and the occupation under it, and that the fact that the defendants had not executed the deed was immaterial. Secondly, that, the parties having agreed that the relation of landlord and tenant should be established between them, the mortgagor was estopped from setting up that the defendants had no legal reversion; and that it made no difference that the fact of the mortgagor having only the equity of redemption appeared on the face of the deed; and that the distress was therefore lawful. ERROR from the judgment of the Court of Queen's Bench in favour of the defendants, on a case stated without pleadings. (1) 1. This is an action brought by the plaintiffs againt the defendants for the recovery of 9397. 11s. 2d. damages for the seizure under a distress warrant of certain chattels alleged by the plaintiffs to be their property, as creditors' assignees, of the estate and effects of John Brown, junior, a bankrupt. 2. By his last will, dated the 10th of March, 1864, John Brown, senior, who died on the 30th of March, 1864, devised all his real and personal estate unto his sons, Lancelot Brown and John Brown, junior, and one William Henry Jolly, their heirs, executors, administrators, and assigns, upon certain trusts in the will mentioned. 3. Lancelot Brown died on the 7th of September, 1866, leaving his two co-trustees still surviving. 4. The said devise includes certain hereditaments situate at South Hylton, hereafter called the "Rivet Manufactory," which is the only portion of the testator's real estate to which this case refers, and which rivet manufactory was, on the 12th of September, 1866, and thence until the date of his bankruptcy, in the occupation of Brown. 5. Brown was, prior to and at the date of the mortgage to Frederick Horn, dated the 30th of May, 1865, hereafter mentioned, seised in fee of certain other hereditaments, also situate at South Hylton, called the "Rolling Mills," which were, on the 12th of September, 1866, and thence until his bankruptcy, in the occupation of Brown. 6. By indenture, dated the 30th of May, 1865, and made between Brown of the first part, the said Lancelot Brown of the second (1) Law Rep. 3 Q. B. 658. part, and the said Frederick Horn of the third part, in consideration of 1500l. to Brown by Frederick Horn then paid, Brown released and conveyed to Horn in fee a certain piece or parcel of ground in the indenture particularly described, including the rolling mills, to the use of Horn in fee, subject to a proviso for redemption, and with power of sale. Lancelot Brown joined in this deed only as security for his brother. 7. At the time of execution by Brown of the indenture of the 12th of September, 1866, hereafter mentioned, and for some time previously, he banked with the defendants, who are bankers carrying on business in co-partnership at Newcastle and Sunderland under the style or firm of "Woods & Co." : 8. On the 8th of September, 1866, Brown, who was then indebted to the defendants, on the balance of his banking account, in a sum of about 13007., applied to the defendants to make him further advances to the extent of 18007., to enable him to carry on his business, which they agreed to do on the terms specified in the following memorandum, which he then signed and delivered to them :"1866, September 8. Memorandum.-In consideration of Messrs. Woods & Co. this day agreeing to advance me to the extent of 18007., I agree to execute them a mortgage on my freehold land, rolling mills, machinery, fixtures, plants, and premises at South Hylton (subject to a present mortgage of 25007., to F. Horn, Esq.), and also on all my estate, share, and interest in the rivet manufactory near to the above premises, and on the entirety of the machinery therein, such to be for the securing the above advance and all moneys due or to become due from me to the said Messrs. Woods & Co., on my account with them, or on any bills of exchange, or on any other account whatsoever. Such mortgage to contain absolute powers of sale, and an attornment as tenant, at the rate of 8007. per annum, payable in advance, and all other usual clauses. Interest at the usual rate charged by the said Messrs. Woods & Co. This security to be a continuing security notwithstanding any change in the firm by death, change of partners, or otherwise." 9. After the memorandum was so signed and delivered, and before the execution of the indenture of the 12th of September, 1866, the defendants, in pursuance and on the faith of the terms of 1869 MORTON V. WOODS. 1869 MORTON v. WOODS. the memorandum, made further advances to Brown to the amount of 16497. 10s., or thereabouts, in part of the said sum of 18007. so agreed to be advanced by them. 10. By indenture dated the 12th of September, 1866, and made between John Brown, junior, of the first part, and the defendants of the second part, after reciting the before-mentioned indenture of mortgage, dated the 30th of May, 1865, and an indenture of further charge to the said Frederick Horn of 10007. upon the premises included in the last-mentioned mortgage, dated the 6th of July, 1866, and also reciting that the two several sums of 1500 and 10007. were still due on the recited securities, but all interest thereon respectively had been paid to the then last current day of payment, and also reciting that under the before-mentioned last will of John Brown, senior, the said John Brown, junior (subject as in the will was expressed), was entitled in fee to one undivided moiety of all the real estate devised by the said will, and including in such real estate the said rivet manufactory; and also reciting that part of the real estate of the testator devised by the said will (and which part included the said rivet manufactory) had by agreement and arrangement with the trustees and other parties beneficially interested in the will, been for some time and then was, in the exclusive possession of John Brown, junior, who then carried on the trade of a rivet manufacturer thereon, and that all the machinery and plant of every description on the said rivet manufactory, were the exclusive property of the said John Brown, junior, and also reciting that Brown, being then indebted to the defendants on balance of his banking account with them, had, in order to induce them to forbear from taking proceedings at law against him to recover such balance and to continue their dealings with him, contracted to give them such mortgage or security as thereinafter appearing, in consideration of the premises, and also in consideration of 10s. paid by the defendants to Brown: Brown did thereby appoint, grant, release, convey, and confirm to the defendants (amongst other things) first, all that piece of ground and hereditaments including the said rolling-mills, being the hereditaments comprised in and conveyed to the said Frederick Horn by the said indenture of mortgage of the 30th day of May, 1865; and, secondly, all that undivided moiety, and all other the |