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Erch. of Pleas,

1832.

covenar

in the

Dixon v. WIGRAM. COVENANT on a mortgage deed. On a rule to shew A first mort..

gagee brought cause why the plaintiff should not assign and reconvey the an action on the mortgaged premises, and deliver up the mortgage deeds,

me up we m g "80 uccues mortgage deed, on bringing the principal money, interest, and costs, into having receiv

ed notice from a Court, and why proceedings should not be stayed, it ap- second mortga

gee not to delipeared that the plaintiff who was first mortgagee, had re- ver up the deeds. ceived a notice from a second mortgagee of his interest,

The mortga

gor applied to and had been desired not to deliver up the deeds.

the Court to compel the

plaintiff, under Alexander shewed cause, and contended that the case

the stat. 7 Geo.

se 2, c, 20, to rewas not within the statute 7 Geo. 2, c. 20, first, as the ac- convey the pre

mises upon paytion was not in ejectment or “ on a bond for payment of ment of the

principal, interthe money secured by the mortgage, or performence of the

est, and costs; covenant therein contained;" and, secondly, as the second an

held it to be a mortgagee did not consent to the delivering up of the case within the

statute, and deeds, and, therefore, might have his remedy against the made the order. plaintiff, after notice, in a Court of equity.

Beames, contrà, submitted that the case was clearly within the intention of the act, which was remedial and was passed to save the delay, trouble, and expense of resorting to a Court of equity; that the second mortgagee could not call the plaintiff to account in equity, unless he were guilty of some fraud or negligence in his character of trustee; and that the interest of the second mortgagee could not be compromised, as a note of the existence of his interest might be indorsed on the deed, which would operate as ample notice to a subsequent incumbrancer. He cited Besthen v. Street (a), where the Court interfered in an action of covenant, Pickering v. Truste (6), and Banks v. Brand (c), as shewing that the Court possessed

(a) 8 T. R. 326.

(6) 7 T. R. 53.

(c) 4 M. & S. 525.

Exch. of Pleas, and would exercise an equitable jurisdiction, in staying 1832.

proceedings where a defendant offered to do all that justice required.

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WIGRAM.

The Court said the case was within the statute, and, as to the second point, that the second mortgagee would be in no danger, as several modes might be adopted to prevent any injury arising to him in consequence of the interference of the Court.

Rule absolute.

IN THE EXCHEQUER CHAMBER.

[In Error from the Court of K. B.]

be recovered

GURNEY v. GORDON and Another. The costs occa- DEBT upon the statute 9 Geo. 4, c. 22. The declarasioned by a frivolous and vexation stated that the defendant below (Gurney) was inalious election

debted to the plaintiffs, under and by virtue of a certain petition, may

act of Parliament made and passed in the ninth year of under the stat. 9 Geo. 4, c. 22, the reign of his late Majesty, George the Fourth, to conss.57,69, against one of several

solidate and amend the laws relating to the trial of conpetitioners. troverted elections or returns of members to serve in Par

liament, in the sum of 12601. 10s. 8d., for the costs and exexpences incurred by the plaintiffs in opposing the petition of the said defendant, and one Charles King Esq., complaining of an undue election and return for the Borough of Tregony; and to be paid by the said defendant to the plaintiffs when he, the defendant, should be thereunto afterwards requested: whereby, and by reason of the said last-mentioned sum of money being and remaining wholly unpaid, and by virtue of the said act, an action had accrued to the said plaintiffs, to demand and have of and from the said defendant the sum of 12601. 10s. 8d., Exch. Chamber,

1832. parcel of the sum, &c. The declaration also contained counts for money paid, money lent, money had and re- Gurney ceived by the defendant below to the use of plaintiff below, GORDO and upon an account stated. The plaintiffs below had judgment upon nil dicit, and entered a remittitur damna except as to 12601. 10s. 8d. (a).

(a) By the 57th 60th and 63rd sections of the statute referred to in the declaration (9 G. 4, c. 22,) it is enacted, “ That, whenever any committee appointed to consider the merits of any petition compiaining of an undue election or return, or of the omission to return any member or members to Parliament, shall report to the House with respect to any such petition (except as is hereinbefore excepted) that the same appeared to them to be frivolous or vexatious, the party or parties, if any, who shall have appeared before the coinmittee in opposition to such petition, shall be entitled to recover from the person or persons or any of them, who shall bave signed such petition; the full costs and expenses which such party or parties shall have incurr. ed in opposing the same, which costs and expenses shall be ascer tained in the manner hereinafter directed.” (Section 60.) “ The costs and expenses of prosecuting or opposing any petition present ed under the provisions of this act, and the costs, expenses, and fees which shall be due and payable to any witness summoned to attend before such coinmittee, or to any clerk or officer of the

House of Commons, upon the trial of any such petition shall be ascertained in manner following, that is to say, on application made to the Speaker of the House of Commons, within three months after the determination of the merits of such petition,by any such petitioner, party, witness, or officer as before mentioned, for ascertaining such costs, expenses, or fees; the speaker shall direct the same to be taxed by two persons, of whom the clerk or one of the clerks assistant of the House, shall always be one, and one of the following officers, not being a member of the House, shall be the other; that is to say, Masters in the High Court of Chancery, clerks in the Court of King's Bench, Prothonotaries in the Court of Common Pleas, and clerks in the Court of Exchequer; and the persons so authorized and directed to tax such costs, expenses, and fees, shall, and they are hereby required to examine the same, and to report the amount thereuf, together with the party liable to pay the same, to the Speaker of the said House, who shall upon application made to him deliver to the party or parties a certificate signed by himself, expressing the

Exch. Chamber, Archbold, for the defendant below.—It appearing on 1832.

the record that the petition was instituted by Charles Gurney King, as well as by the defendant below, the action should

have been brought against them jointly, and not against Gurney alone. By the statute the defendant must suffer judgment by default, and has no opportunity of taking this objection except in error.

V. GORDON.

Sed per Curiam.By the 57th section the party who shall have appeared before the committee in opposition to the petition, is entitled to recover from the person or persons, or any of them, who shall have signed the petition, the full costs and expenses incurred in opposing the same;

amount of the costs, expenses, and fees allowed in such report, together with the name of the party liable to pay the same, and such certificate so signed by the Speaker, shall be conclu sive evidence of the amount of such demands in all cases, and for all purposes whatsoever; and the witness, officer, or party claiming under the same shall upon payment thereof give a receipt at the foot of such certificate, which shall be a sufficient discharge for the same.” (Section 63.) “ It sball and may be lawful for the party or parties entitled to such costs and expenses, or for his, hier, or their executors or administators, to demand the whole amount thereof so certified as above, from any one or more of the persons respectively who are hereinbefore made liable to the payment thereof in the several cases hereinbefore mentioned; and, in case of non-payment thereof, to recover the same by action of

debt, in any of his Majesty's Courts of Record at Westminster; in which action it shall be suflicient for the plaintiff or plaintiffs to declare that the defendant or defendants is or are indebted to bim or them in the sum to which the costs and expenses ascertained in manner aforesaid shall amount by virtue of this act, and the certificate of such amount so signed as aforesaid by the Speaker shall have the force and effect of a warrant to confess judgment; and the Court in which such action shall be commenced, shall, upon motion, and on the production of such certificate enter up judgment in favour of the plaintiff or plaintiff's named in such certificate for the sum specified therein to be due from the defendant or defendants in such action, in like manner as if the said defendant or defendants had signed a warrant to confess judgment in the said action to that amount.

and, by the 63rd, to demand the whole amount thereof Exch. Chamber,

1832. from any one or more of the persons liable. It is impos- sible to doubt that the plaintiff may, if he chooses, confine his suit to one.

GORDox. Judgment affirmed.

GURNEY

ucn tempo

ral estate as God

and dispose of it

ive

R. two other

Doe d. KNOCKER v. RAVELL and Others.

Exch. of Pleas, UPON the trial of an ejectment, before Tindal, C. J., A testatrix, after

a preamble, “as at the last Kent Assizes, a verdict was found for the lessor û of the plaintiff, subject to the opinion of the Court on the

hath given me, following case:

I give, devise, Margaret Ravell, being seised in fee of several messuages in the following at Postling, made her last will and testament in writing, manner,

'8 to J. R. a house, dated the 6th June, 1780, duly executed to pass real &c., to come in

to possession at estates, whereby, after directing the particulars of her the age of eight

een, and to S. burial, she gave and devised as follows:-“ And as for such temporal estate as God hath given me, I give, devise, houses, &c..

(without using and dispose of it in the following manner–First, I give any express

words to pass and bequeath to John Ravell, the younger, (to come into the fee), and his possession as soon as he arrives at the age of eighteen

her estate, years), all that messuage or dwelling-house, together with which was limit

ed by enumerathe garden, backside, and appurtenances thereunto belong- tion to personal

..ona no hoo on ty: she also gave ing, as also the right of commonage for, and cow lees on Postling Lees, which said premises are situate in Post- of the house be

fore given to J. ling aforesaid, and are now in the tenure or occupation of R. until he was

eighteen, and, in John Chaplin, or his assignees. All which said premises th

death before that I do hereby give John Ravell the younger.

age, directed " Item, I also give and bequeath to my nephew, John that all that was

left to him Ravell, the elder, the sum of 251. of principal money, and should descend

se and go to S. R.: all interest due thereon at my decease; which said sum of

-Held, that S. 251. is a moiety of 501. now in the hands of my trusty R. did not take

an estate in fee friend, Mr. Fremoult, of Canterbury; the other moiety in the two

the event. of his

houses.

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