gage in fee was made, giving the legal title to the mortgagee, and the mortgagor remained in posses- sion; if the mortgagee were de- sirous of obtaining possession, and making his title absolute, he could only do so by an action of eject- ment, and the mortgagor could, during the pendency of such action, come in, and by payment of the money obtain a compulsory right of redemption; but if the mort- gagor abandoned that right, and the mortgagee obtained possession,
the title of the mortgagee became absolute and indefeasible.
The Canada Act, 7 Will. IV., c. 2,
established a Court of Chancery, in Canada, and gave, as appurte- nant to such jurisdiction, an equi- table right of foreclosure to mort- gagees, and an equitable right of redemption to mortgagors. Sec- tion 11, of that Act, after reciting that, as to questions between mort- gagors and mortgagees, a strict adherence to the rules established in England might be attended with injustice, gave to the Court, power and authority, in all cases of mort- gage, where, before the passing of the Act, the estate had become absolute in law, by failure in per- forming the conditions, to make. such order and decree in respect to foreclosure or redemption, and with regard to compensation for improvements, and generally with respect to the rights and claims of the mortgagor and mortgagee, as might appear just and reasonable
under the circumstances of the case.
Bill filed in 1840, for redemption of a mortgage, executed in 1810. Judgment had been recovered, in an action of ejectment, by the mortgagee against the mortgagor; and under an execution issued upou such judgment, the Sheriff, in the year 1825, sold and conveyed the equity of redemption to a person who had acquired the legal fee from the mortgagee. The pur- chaser took possession of the estate, and sold and leased various parts of it, and large sums of money were expended by him, and those claiming through him, in building and other permanent improve- ments upon the estate, whereby the property had greatly increased in value. Held by the Judicial Com- mittee, affirming the decree of the Executive Council in Canada,-
First, That by the 11th section of the
Act, 7 Will., c. 2, the right to re- deem was in the discretion of the Court of Chancery in Canada; and Secondly, That, the mortgagor having abandoned possession, giving up the legal estate without enforcing his right of redemption, and the subsequent dealings with the pro- perty by the purchaser, and those claiming under him, did not pre- sent a case sufficient to justify the Court of Chancery in Canada to proceed to enforce the right of redemption on the part of the mortgagor, and that such right was properly held to be absolutely extinguished. [Smyth v. Simp- son]
1. In cases of extension of the term of Letters Patent, the Attorney-Ge- neral represents the Government and the public generally. An application by the Lords of the Admiralty to enter a caveat, and be heard against a petition for an extension, such caveat not having been filed within the time re- quired by the rules of the Privy Council Office, refused, as the At- torney-General was present to watch the interests of the Govern- ment.
Extension of Letters Patent granted
for five years; the invention being of great merit and public utility, but the patentee and his grantees had received no remuneration, in consequence of the originality of the patent being disputed at law. In granting such prolongation, the Judicial Committee imposed a con- dition, that the Commissioners for executing the office of High Ad- miral should have the right of manufacturing such invention, for the service of Her Majesty, with- out any licence from the patentee. [In re Pettit Smith's Patent] 133
2. An importer of a foreign inven- tion, by which the public is bene- fited, is entitled to be put on the same footing as an original in- ventor, when applying for a pro- longation for such foreign importa- tion.
In a case, therefore, where the in- vention was of considerable com- mercial value, and the importers had embarked a large capital upon machinery in trying to introduce it to general use, and incurred considerable loss in so doing; the Judicial Committee recommended an extension of the Letters Patent, for six years. [In re Berry's Pa- tent] 3. To entitle an equitable assignee to appear with the legal assignees of a Patent, on a petition for a pro- longation of the Letters Patent, the name of such equitable as- signee must appear with the other Petitioners, in the advertisements, required by section 4 of the Sta- tute, 5th and 6th Will. IV., c. 83, and rule 2, made in pursuance thereof. [In re Noble's Patent]
4. The importer of an invention
from abroad is an inventor within the meaning of the Statute, 5 & 6 Will. IV., c. 83, and entitled to apply for an extension of the
But the Judicial Committee will look
with jealousy into the merits of the invention imported. Application for an extension, by the
Trustees of a Joint Stock Com- pany (the assignees of the pa-
c. 125, s. 55, by reason of having a licensed Pilot on board, to prove that the damage was occasioned by the fault of the Pilot. The 6th Geo. IV., c. 125, only re-
lieves owners of vessels from lia- bility for damages done by their ship, where the damage is occa- sioned by the fault, negligence, or misconduct of the Pilot alone. A ship, having a licensed Pilot on board, whilst at anchor in the Downs, the weather being bad,: was run into by another vessel, and made to start from her anchor- age, and was driven into a vessel at anchor. Held, that she was to blame, and liable to damages, be-
First, the ship, notwithstanding the bad weather, and a large number of vessels lying wind-bound in the Downs, had neglected to send down her top-gallant and main- royal yards, and also her short fore and mizen-top-gallant masts; and Secondly, that she did not see her stay-sail and jib, and so drag her anchor off shore. In such circumstances, held (affirm- ing the Decree of the Admiralty Court), that the neglect to set the stay-sail and jib after she was driven from her anchorage, was the fault of the Pilot alone; but that the neglect in not sending down the top-gallant masts, &c., the cause of damage, was the joint fault of the Pilot and Master, and that the Owners were not exone- rated by the Pilot Act, 6 Geo. IV., c. 125, s. 55.
When the vessel came to anchor in the Downs, the duty of the Pilot ended, but as he did not quit the ship, she continued under his charge. [Hammond v Rogers]
The owners of a vessel having a duly licensed Pilot on board are pro- tected by the Pilot Act, 6 Geo. IV., c. 125, s. 55, from liability for damage solely occasioned by the fault of the pilot.
Aliter. If the blame is mutually imputable to the pilot, and master and crew.
When a collision was occasioned by the improper sailing and steering of a vessel, the exclusive act of the pilot, the owners of the vessel were held (reversing the judgment of the Court below) entitled to the exemption provided by the Statute, 6 Geo. IV., c. 125, s. 55. lok v. McAlpin]
(6 Geo. IV., c. 125, s. 55.) See "PILOT."
1. Parties having separate and dis- tinct interests were joined together as co-plaintiffs. Held, that as no objection, for misjoinder or multi- fariousness, had been raised by the answer, or at the hearing in the . Court below, to the frame of the Bill, it could not be taken upon appeal.
Some of the Plaintiffs had died in
the course of the appeal, and the suit had not been revived against their representatives. In such circumstances, the appeal was al- lowed to be prosecuted in the name of the surviving Plaintiffs, as this Court is not disposed to give effect to technical rules in pleading, which would prevent justice being done. [The Marchioness of Bute v. Mason] 2. The rule in pleading "Qui ponit fatetur," must be received with some modification. It must be rigidly enforced with respect to every averment made by a party alleging within his own personal knowledge, but the same rule must be applied, less stringently and in some instances rejected, when the party states facts not within his personal knowledge. [Greville v. Tylee] 820 3. Although there is not so much strictness required in pleadings in the Courts in the Isle of Man as in England, yet where a declara- tion in an action for deceit contains specific averments of fraud, such averments must be established by proof, to entitle the Plaintiff to recover. [Moore v. Clucas] 352
POWER OF ATTORNEY.
Power to "sell, endorse, and as sign."
See "PRINCIPAL and Agent," 2.
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