In what

cases.

Form of writ.

Saving of

former remedies.

In ejectment by mortga gee, the mortgagor's rendering the

principal, in

terest and costs in

court shall be

deemed a full satisfac

tion, and the

court may compel the

mortgagee to

re-convey.

This is a re-enactment of the 11 Geo. 4 & 1 Will. 4, c. 70, s. 36, which applied only where the right of entry accrued during or immediately after an issuable term, and not where an assize intervened between an issuable term and the right of entry (Doe d. Milner v. Roe, 2 L. M. & P. 578). The former statute did not, nor does this section, apply to cases where the premises are situate in Middlesex (Doe d. Norris v. Roe, 1 Dowl. 547), nor in London.

This writ is in the usual form of writs of ejectment, except that the time for appearance is ten days. The subsequent proceedings are the same as in other actions of ejectment, except as to the length of the notice of trial, which is specially limited above. In case of non-appearance, judgment may be signed; and the affidavit of service should state when the tenancy expired or right of entry accrued, in order that it may appear that the proceedings are in accordance with this section.

If the defendant appears at the trial, he waives his right to six days' notice of trial (Doe d. Antrobus v. Jepson, 3 B. & Ad. 402), At Nisi Prius, it cannot be objected that the action was not commenced within ten days after the right of entry accrued. this being only an irregularity (Doe d. Rankin v. Brindley, 4 B. & Ad. 84).

218. Nothing herein contained shall be construed to prejudice or affect any other right of action or remedy which landlords may possess in any of the cases hereinbefore provided for, otherwise than hereinbefore expressly enacted.

See s. 221 (post, p. 174).

219. Where an action of ejectment shall be brought by any mortgagee, his heirs, executors, administrators or assignees, for the recovery of the possession of any mortgaged lands, tenements or hereditaments, and no suit shall be then depending in any of her Majesty's courts of equity in that part of Great Britain called England, for or touching the foreclosing or redeeming of such mortgaged lands, tenements or hereditaments, if the person having right to redeem such mortgaged lands, tenements or hereditaments, and who shall appear and become defendant in such action, shall, at any time pending such action, pay unto such mortgagee, or, in case of his refusal,* shall bring into court, where such action shall be depending, all the principal monies. and interest due on such mortgage, and also all such costs as have been expended in any suit at law or in equity upon such mortgage (such money for principal, interest and costs to be ascertained and computed by

To accept such payment.

the court where such action is or shall be depending, or by the proper officer by such court to be appointed for that purpose), the monies so paid to such mortgagee, or brought into such court, shall be deemed and taken to be in full satisfaction and discharge of such mortgage, and the court shall and may discharge every such mortgagor or defendant of and from the same accordingly; and shall and may by rule of the same court compel such mortgagee, at the costs and charges of such mortgagor, to assign, surrender or re-convey mortgaged lands, tenements and hereditaments, and such estate and interest as such mortgagee has therein, and deliver up all deeds, evidences and writings in his custody, relating to the title of such mortgaged lands, tenements and hereditaments, unto such mortgagor, who shall have paid or brought such monies into the court, his heirs, executors or administrators, or to such other person or persons as he or they shall for that purpose nominate or appoint.

*

This section is not a mere re-enactment of 7 Geo. 2, c. 20, s. 1; When to although it gives powers similar to those conferred by that sta- apply under tute. An application for a stay of proceedings under it ought this section. to be made before execution executed, and ought to be founded on an affidavit stating that no suit in equity is pending (Adams, Eject. 318). The defendant must also have appeared to the action (Doe d. Hurst v. Clifton, 4 A. & E. 814), and this fact ought to be stated in the affidavit (Doe d. Cox v. Brown, 6 Dowl. 471).

The court may make the re-payment to the mortgagee of his expenses of putting up the mortgaged property to sale, a condition of a rule to stay proceedings in the action (Dowle v. Neale, 10 W. R. 627, Ex. E. T. 1862).

The application ought to be made before executing execution against the mortgagor; but where the premises were in the possession of a tenant of the mortgagor who did not appear, and the claimant obtained judgment by default, and recovered possession, the court would have set aside the judgment and execution in order to let in the mortgagor to apply for a stay of proceedings, if the mortgagee had not consented to take what was due on the mortgage and restore possession (Doe d. Tubb v. Roe, 4 Taunt. 887).

The provisions of this section do not apply to cases where the In what cases mortgagee is in possession (Sutton v. Rawlings, 3 Exch. 407), the applicaUpon staying proceedings, the costs are to be taxed as between tion may be

made.

• Where there has been an assignment of a mortgage, and a re-conveyance to the mortgagor, and then a re-mortgage to the same mortgagee, the original mortgage and the re- conveyance, as they form links in the title, should be delivered up under the usual order under this section (Hudson v. Malcolm, 10 W. R. 720, Ex. T. T. 1862).

Judge at chambers.

Not to ex

due not adjusted;

party and party, and not as between attorney and client (Doe d. Cupps v. Cupps, 3 Bing. N. C. 768).

It may be observed that under 7 Geo. 2, c. 20, s. 1 (which is not repealed; but rather expressly preserved by s. 221, infra), the court will stay proceedings in an action of covenant on a mortgage-deed; as that statute extends to actions brought " on any bond for payment of the money secured" by the mortgage (Smeeton v. Collier, 1 Exch. 457).

A judge at chambers has jurisdiction under this section (see s. 221, infra; Lawrence v. Hogben, L. J. 26, Ex. 55).

See as to the jurisdiction of judges at chambers, Smeeton v. Collier (1 Exch. 457); Clarke v. E. I. Company (6 D. & L. 278); and other cases cited in note to C. L. P. A. 1860, s. 4, post; and now as to the jurisdiction of the masters at chambers, see stat. 30 & 31 Vict. c. 68, post.

220. Nothing herein contained shall extend to any tend to cases where the case where the person against whom the redemption right of reis or shall be prayed shall (by writing under his hand, demption is controverted, or the hand of his attorney, agent or solicitor, to be or the money delivered before the money shall be brought into such court of law, to the attorney or solicitor for the other side) insist, either that the party praying a redemption has not a right to redeem, or that the premises are chargeable with other or different principal sums than what appear on the face of the mortgage, or shall be admitted on the other side; or to any case where the right of redemption to the mortgaged lands and premises in question in any cause or suit shall be controverted or questioned by or between different defendants in the same cause or suit; or shall be any prejudice to any subsequent mortgage or subsequent incumbrance, anything herein contained to the contrary thereof in anywise notwithstanding.

or to preju

dice any subsequent mortgage.

What cause may be

shown.

of courts and

judges.

In answer to a rule nisi obtained under s. 219 (ante, p. 172), it is sufficient to show the delivery of a notice in writing to the mortgagee, stating that the mortgagee disputes the mortgagor's right to redeem (Filbee v. Hopkins, 6 D. & L. 264). In other cases where notice may be given by the mortgagee, enough ought to be stated to enable the court (when cause is shown against the rule) to determine what the question is between the parties, and to decide whether a case for the exercise of the jurisdiction of a court of common law properly arises or not (Doe d. Harrison v. Louch, 6 D. & L. 270; see also Goodtitle v. Pope, 7 T. R. 185; and as to imposing terms, see Sutton N. Rawlings, 3 Exch. 407).

Jurisdiction 221. The several courts and the judges thereof respectively shall and may exercise over the proceedings the like jurisdiction as heretofore exercised in the action of ejectment, so as to ensure a trial of the title, and of actual ouster, when necessary, only, and

for all other purposes for which such jurisdiction may at present be exercised; and the provisions of all statutes not inconsistent with the provisions of this act, and which may be applicable to the altered mode of proceeding, shall remain in force and be applied thereto.

See s. 218 (ante, p. 172).

The real defendant, though not a party to the record, may be ordered by rule to pay the cost of a successful claimant (Hutchinson v. Greenwood, 4 E. & B. 324; L. J. 24, Q. B. 2; Thornton v. Wilkinson, 11 W. R. 916; Ex. E. T. 1863).

So the real claimant may in like manner be ordered to pay the costs of a successful defendant (Mobbs v. Vandenbrande, 4 B. & S. 904; L. J. 33, Q. B. 177).

AMENDMENT.

And whereas the power of amendment now vested in the Courts and the Judges thereof is insufficient to enable them to prevent the failure of justice by reason of mistakes and objections of forms; be it enacted as follows:

222. It shall be lawful for the superior courts of common law, and every judge thereof, and any judge sitting at nisi prius, at all times to amend all defects and errors in any proceeding in civil causes, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend, or not; and all such amendments may be made with or without costs, and upon such terms as to the court or judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made.

It is difficult to exaggerate the importance of this section, especially the last clause of it: "All such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be made."

The power to amend thus committed to the judges differs much from the powers hitherto possessed by them.*

Amendments, generally speaking, had previously been of vari- Extent of ances between the record and the evidence at the trial; and pleas, amendments pleading too much or too little, were found against the defendant, to be made. when, if an amendment could have been made, the real question would have been tried and decided. Now "all defects and errors"

* A very useful résumé of the various statutes of Amendments and Jeofails will be found in the article "Amendment" in the "Imperial Cyclopædia."

are to be rectified, and to be so rectified "at all times." Amendments also had been formerly made on the record where there was something in writing to amend by (Cheese v. Scales, 10 M. & W. 491). Amendments now are to be made as the matters in dispute themselves require; the amendment is to bring out "the real question in controversy between the parties;" and see St. Losky v. Green (9 C. B., N. S. 370; L. J. 30, C. P. 19).

As the allowance of amendments under this section rests entirely in the discretion of the judges, exercised upon the particular case before them, a mere recapitulation of the very numerous cases wherein amendments have been allowed or refused would serve only to display the beneficial use that has already been made of the very great power now entrusted to the courts and judges, and would prove but of little use to the practitioner. Many of these cases may be found in Roscoe's Nisi Prius, 11th ed.; the principal cases more recently decided are Garrard v. Giubilei (11 C. B., N. S. 616; L. J. 31, C. P. 131; S. C., in Ex. Ch., 13 C. B., N. S. 332; L. J. 31, C. P. 270), where in an action against a husband in respect of a cause of action which accrued against his wife dum sola, the court held that the wife could not be added as a party by way of amendment; so in Bolingbroke and Wife v. Kerr (L. R. 1 Ex. 222), where a husband and wife sued in right of the wife as administratrix, and the action ought to have been brought by the husband alone, the Court of Exchequer doubted if they could amend, and a stet processus was entered upon terms; Adams v. Smith (1 F. & F. 311), where Bramwell, B., refused to allow a plea of public highway to be added at Nisi Prius in an action of trespass; Pearce v. Preston (11 W. R. 35, Q. B., M. T. 1862), where, in an action which had slept for some years, and which had been revived against the executors of the defendant, leave to amend the claim and particulars by increasing the amount sought to be recovered, adding items which would be barred by the Statute of Limitations, was refused; Roles v. Davis (4 H. & N. 484), where an alleged misrepresentation of the value of a business was allowed to be amended; Hailes v. Marks (7 H. & N. 56; L. J. 30, Ex. 389), where, in an action for false imprisonment, the defendant was allowed to amend the grounds of suspicion alleged in his plea of justification; Blake v. Done (7 H. & N. 465; L. J. 31, Ex. 100), where, in ejectment brought by cestui que trust, the names of his trustees were allowed to be added (see also Cornish v. Abingdon, 1 F. & F. 562, E. T. 1862; Ellston v. Deacon, L. R., 2 C. P. 20; Berresford v. Geddes, L. R., 2 C. P. 285); La Banca Nazionale, &c. v. Hamburger (2 H. & C. 330), where a foreign bank sued in the corporate name by which it was known, and the defendants pleaded nul tiel corporation, the Court of Exchequer amended the writ and declaration by inserting the name of a director of the bank as nominal plaintiff, he being by the law of the country entitled to sue; and as to special cases, Carpenter v. Parker (3 C. B., N. S. 206; L. J. 27, C. P. 78); Notman v. Anchor Assurance Company (6 C. B., N. S. 536); Mersey Docks v. Jones (L. J. 29, C. P. 239); Pennington v. Cardale (10 W. R. 544, Ex., E. T. 1862).

The act contains no provisions for substituting one plaintiff for another, one suing in a representative capacity for a dead man who never was a party to the proceedings (per Kelly, C. B., Clay v. Oxford, L. R. 2 Ex. 54). In a case in which a local board of