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to entitle the plaintiff to redeem both or same position as the mortgagor), can either either; and I am clearly of opinion, that of those two say, unless he (the mortthe plaintiff is entitled to have a decree so gagor) redeems his other property with worded. I give no opinion as to whether which I have no concern he shall not rethe plaintiff could be entitled to such a deem me? I do not think that proposition decree if George Wathen's mortgages and can be maintained. The Registrar was Anna Wathen's mortgage had comprised satisfied that the forms of the court would the same property. That is not the case allow the proposed decree to be made, and here. The Master finds that the property I cannot doubt it. I think, therefore, in George Wathen's mortgages and that in that the plaintiff is entitled to have a Anna's are not the same in any respect; decree for redemption by the mortgagor as but that the plaintiff's mortgage includes to the whole property, that is to say, both the property in both the prior mortgages. mortgages, if he shall redeem both, or as
Why, then, should he not be entitled to such one of the mortgages as he shall to the decree he asks? No case was cited not redeem, the bill to be dismissed, conin support of the proposition, that in such fining the order for dismissal to such morta case a second mortgagee of two distinct gagee as he shall not redeem, and, followproperties mortgaged to two different ing up the decree, as to such mortgages or persons could not redeem one without mortgage as he shall redeem by a decree of redeeming both. The question, it must be redemption or foreclosure as against the remembered, is one in which the mortgagor mortgagor. If he redeems both the mortonly is interested. The mortgagee has no gagees, the common decree follows; and if interest in the question. The proposition only one, then his bill is dismissed as to so considered amounts to this, that a the other. With respect to that mortgage mortgagee cannot as between himself and which he redeems he takes the common his own mortgagor abandon a part of his decree of foreclosure against the mortgagor. security and work out satisfaction of his The third point is one of more difficulty. claim against the remainder of his security. The offer in the bill is not embodied in This, I say, is in substance the proposition the decree. I agree, however, that if the contended for. It is clear that the plain- plaintiff was bound to do that which he tiff might out of court, or in a separate has offered to do for the defendants in this suit to which the mortgagor was not a case (the decree having directed inquiries party, have become first mortgagee of only,) the defendant is not too late on either of the mortgages which have priority further directions to claim such benefit of over his own; and having done so, he the offer as he is entitled to. Indeed, might in a suit confined to the property of without the offer, the Court could compel which he had thus become first mortgagee the plaintiff to do what was equitable as have compelled the mortgagor to redeem the price of the decree he obtains. Those him or be foreclosed. The circumstance who are acquainted with Lord Eldon's that the plaintiff seeks to redeem both the decisions know that he repeatedly made prior mortgages in one suit is no reason the observation, “I want no offer: if equity for altering his rights as between himself entitles me to do it, I will do whatever is and the mortgagor; and neither mortgagee equitable.” But the defendants, the solicican have any interest in that which is done tors, have contended that the offer in the bill as to the other. It cannot concern Anna is binding upon the plaintiff, whether he was whether George is redeemed or not; nor or not equitably bound to do what he offered. can it concern George whether Anna can A gratuitous offer they say is equally be. Suppose the simple case of a bill by available to them as one which the plaintiff a mortgagor against two separate mort- is bound to make. The plaintiff, I now gagees, and no objection made by either understand, is desirous of abandoning all of them to their being joined in the suit, claims to the documents in the possession (I mean by separate mortgagees, distinct of the solicitors, except those to which he property, and I put the case because the has entitled himself in his character of second mortgagee as between the first mortgagee discharged of the lien claimed mortgagee and the mortgagor is in the by the solicitors, which he might do, unless
his offer binds him. I should very reluctantly sanction the proposition that a party may, as a matter of course, withdraw an offer made by his bill, however gratuitous it may be. It is impossible in the abstract to say what effect such an offer might have had upon the defence in the cause, or on the evidence given in support of it. In Dr. Battine's case mentioned by Lord Eldon, in Davis v. the Duke of Marlborough (5), Dr. Battine filed a bill to set aside an annuity deed, offering by his bill to repay the purchase-money of the annuity. Lord Eldon said that the offer was gratuitous, but nevertheless the Court held the Doctor to his offer. The question is, whether I ought to do so here. The solicitors, the defendants, claimed a lien upon the title deeds relating to the plaintiff's mortgage, and in this claim they have failed altogether so far as the plaintiff is entitled to the deeds in respect of the mortgage, and so far as he considers those deeds to be material to his title as mortgagee. Now, suppose the only document, upon which the solicitors have established a lien against the plaintiff, to be a duplicate copy of an immaterial paper relating to the mortgaged property, and that the offer is gratuitous, -is the plaintiff, by reason of that offer which he has made in this bill and that alone, to be compelled to discharge the amount of Lewis's bill to his solicitors ? I am glad to escape the necessity of answering the question, by observing that the offer in the bill does not, when carefully considered, extend to such a case. The bill denying the solicitor's right to a lien upon documents which came into his possession as mortgagee, but supposing as an alternative, that such claim may be upheld by the Court, offers to redeem the deeds with the land. The case to which that offer applies does not arise in this case ; for I have determined against the claim of the solicitors. It would be holding him to an offer in a case different from that to which the offer applies.
The next question is as to costs, which I notice before the one about repairs, because it applies to the last question I have considered. And this question is respecting
those costs which have been occasioned by the contest in the cause respecting the solicitors' claim of lien on documents. So far as the plaintiff has succeeded in establishing a right to documents upon which the solicitors claimed a lien as solicitors, the solicitors must pay the costs : so far as the solicitors have established a lien upon the documents claimed by the plaintiff, they must have their costs--that is, the costs occasioned by the claim in each case. The question I have to decide is, by whom these latter costs are to be paid. If the plaintiff asks no decree against the solicitors in respect of the documents upon which they have established their lien, he must pay the costs; for his abandonment of so much of the relief prayed by his bill is, upon the question of costs, analogous to a dismissal of the bill. Those documents which relate to the mortgage are different; but as to those he does not claim he must pay the costs. The only question is, by whom the solicitors' costs in respect of the lien established by them are to be borne; whether by the plaintiff personally, or whether he is to be allowed to add them to his mortgage debt. I think the latter is the proper order. For the solicitors' lien is claimed under the mortgagor, and the costs in question are costs incurred by the plaintiff in establishing his security.
Now, with regard to the question of repairs and lasting improvements. At present there is no foundation at all for any order about it. There is no suggestion in the answer and no petition ; and if I were to make an order now, there is nothing but the statement of counsel at the bar upon which to form it. That statement is quite enough if the parties interested in the cause will give their consent to the order being made. If not, then I apprehend, that there must be a petition in order to ground the order. Supposing a petition to be presented, then the question will arise, on Sandon v. Hooper, to what extent they are bound before they get their decree to establish that there have been such repairs and lasting improvements as to entitle them to the reference. There are some important observations in Mr. Coventry's book on Mortgages, with respect to the matter of lasting improvements and repairs
(5) 2 Swanst. 156, n. a.
Mortmain Act, 9 Geo. 2.c. 36.-Charitable Use-Dock and Canal Companies—Joint Stock-Shares and Bonds-Legacy.
Dock and canal companies were seised of very considerable real estates, yielding a large net income, which was divisible among the proprietors of the respective companies The shares were, by the several acts of incorporation, declared to be personal estate, and transmissible and distributable as such, and not of the nature of real property :Held, that such shares were not within the Mortmain Act.
Held, also, that bonds of the companies, given for money borrowed under the powers of the acts by way of mortgage of the under. taking, and to secure payment of an annual sum, were not within the Mortmain Act.
of the testator's next-of-kin, the Master was directed to inquire into the nature and object of the Institution of Civil Engineers, and, in taking the accounts directed by the decree, he was to distinguish the parts of the testator's personal estate at the time of his death, consisting of leasehold estates, mortgages, or chattels real or otherwise arising from or connected with land, and ascertain and state the relative amounts and values thereof, and of the testator's pure personal estate at the time of his death, with liberty to state special circumstances.
On the 20th of July 1848 the Master stated, in the fourth schedule to his report, that he had distinguished and set forth the particulars of the personal estate arising from real estate, as directed by the order. with the relative values, which, together, amounted to the sum of 7,6091. 198. 3d. ; and he found that all the other personal estate of the said testator, at his death, consisted of pure personal estate ; that all the personal estate got in amounted to 36,5551, 6s. 10d., and that upon deducting the sum of 7,6091. 198. 3d., there remained 28,9451. 78. 7d., which he found to be pure personal estate. The fourth schedule referred to by the report was as follows:“Leasehold dwelling-house, No.24, Abingdon Street, Westminster, for a term of one year and a quarter unexpired at the testator's death, no value, being at a rack rent. Mortgages, none. Chattels real and otherwise arising from or connected with land 2,000l. St. Katherine Dock stock, sold for 2,0411. Ellesmere Canal Company, twenty-five shares, sold for 2,000l. Birmingham and Liverpool Junction Canal Company, forty-one shares, sold for 1,0291. Macclesfield Canal, ten shares, 1501. Birmingham and Liverpool Junction Canal, three bonds, 1,0001., 5001., and 5001., sold for 1,9791. 198. 3d. Birmingham and Liverpool Junction Canal Company, shareholder's bond, 4101. ; making the total value 7,6091. 198. 3d.”
To this report exceptions were taken by the Institution of Civil Engineers, on the ground that the Master, in his report, ought to have distinguished and set forth in the fourth schedule the said several particulars as pure personal estate.
Thomas Telford, by his will, dated the 9th of June 1834, directed that after the payment of his debts and funeral expenses, the remainder of his property should be disposed of in payment of several legacies and bequests, and, amongst others, of a legacy of 2,0001. to the President for the time being of the Institution of Civil Engineers (of which the testator had been president), and of 1,0001. to the minister of the parish of Longholme, and of 1,0001. to the minister of the parish of Westerkirk, upon certain trusts therein specified; and the testator directed that if the property should be more or less than the amounts he had before mentioned, the appropriation should be diminished or increased accord. ingly.
On the 14th of June 1842 a decree was made to take an account of the testator's estate, and by an order dated the 10th of May 1843, made upon the petition of several
The St. Katherine Dock Company was incorporated by 6 Geo. 4. c. cy. The capital was to be 1,352,7521., with power to borrow 500,0001. upon the rates ; which sums were to be vested in the company and their successors, for the purposes of the act, for the use and benefit of the proprietors in proportion to the sum which each of them should have severally subscribed ; and by section 4. it was enacted, "that all and every part and share of and in the said joint stock of the said company should be and be deemed to be personal estate, and transmissible and distributable as such, and not in any respect of the nature of real property;" and the company were empowered to purchase lands and build ings.
The 7 & 8 Geo. 4. c. cii. was to amend the several acts relating to the Ellesmere and Chester Canal Navigation. The company was re-incorporated and united, and the property vested in the united company, with power to purchase and take land to them and their successors for the use of the cuts and canals; they were also empowered to make a branch cut; but if abandoned, the land was to vest in the owners of the adjoining lands. The company had also power to borrow 80,000l., and assign the navigation and the rates and tolls, &c. The joint stock, until increased, was to consist of 475,5681. 15s., to be considered as divided into 3,575 shares, of 1301. each, and the shareholders were to be entitled to receive an equal proportionable part of the net profits arising by the rates, &c. and be liable to pay a proportionate sum towards carrying on the undertaking; and sect. 128. enacted, " that all and every the shares and proportions of all bodies politic, corporate, or collegiate, and all other person or persons of and in the said undertaking, or the joint stock or fund of the said company, should be deemed personal estate, and be transmissible as such, and not of the nature of real property."
The Birmingham and Liverpool Junction Canal Company was incorporated by the 7 Geo. 4. c. xcv., with power to purchase lands for the use of the undertaking, with out incurring any forfeiture by the Statute of Mortmain, and to raise a capital not exceeding 400,000l. by shares of 100%,
NEW SERIES, XVIII.-CHANC.
each, with power to raise an additional 100,000l., and to assign the property of the undertaking ; and the subscribers were to receive the entire and net distribution of an equal proportionable part, according to the money so by them respectively paid, of the net profits and advantages arising by the rates, &c. And sect. 67. enacted, “that all and every the shares and proportions of all bodies politic, corporate, or collegiate, and all other person or persons of and in the said undertaking, or the joint stock or fund of the said company, should be deemed personal estate, and be transmissible as such, and not of the nature of real property." And if the canals were abandoned by the company, the land was to revert to the owners of the adjoining lands.
The Macclesfield Canal Company was incorporated by the 7 Geo, 4. c. xxx., and contained provisions similar in effect to the other statutes. Section 79. enacted, “that all and every the shares and proportions of all bodies politic, corporate, and collegiate, and all other person and persons of and in the said canal or joint stock or fund of the said company, should be deemed personal estate, and transmissible as such, and not of the nature of real property."
The three bonds referred to in the Master's report were for money borrowed under the 7 Geo. 4. c. xcv. By that act the company was enabled to raise 400,0001. in shares ; and in case that should not be sufficient, the company was authorized by section 74, to borrow the further sum of 100,0001. on the credit of the undertaking, and to assign the“ property" of the undertaking and the rates arising by virtue of the act as security for the money borrowed, and interest ; and the following is the form of the security given to the testator :
“No.5.--By virtue of an act made in the seventh year of the reign of King George the Fourth, intituled 'An Act for making a navigable canal from the Staffordshire and Worcestershire Canal in the parish of Tettenhall, in the county of Stafford, to the united navigation of the Ellesmere and Chester Canals in the parish of Acton, in the county palatine of Chester,'-We, the company of proprietors of the Birmingham and Liverpool Junction Canal Na vigation, incorporated by and under the
said act, in consideration of the sum of 5001. to us in hand paid by Thomas Tel. ford, of Abingdon Street, in the city of Westminster, Esquire, do assign unto the said Thomas Telford, his executors, administrators, and assigns, the said undertaking, and all and singular the rates arising by virtue of the said act, and all the estate, right, title, and interest of, in, and to the same; to hold unto the said Thomas Telford, his executors, administrators, and assigns, until the said sum of 5001., together with interest for the same, after the rate of 51. for every 1001. for a year, shall be fully paid and satisfied. Given under our common seal this 4th day of January 1830.
(Sealed with the common seal.) “Registered in the books of the Com. pany of Proprietors of the Birmingham and Liverpool Junction Canal Navigation, this 1st day of March 1830, by
“ Thomas Eyre Lee, clerk.” By section 75, in the event of interest being in arrear, two Justices of the Peace, on application of parties interested, were authorized to appoint a receiver of the rates liable to pay such interest, and when such interest was paid the powers of the receiver were to cease, or such interest might be recovered in an action of debt.
The fourth bond was for money borrowed under the 4 Will. 4. c. xxi. By section 2. the Birmingham and Liverpool Junction Canal Company were authorized to raise the further sum of 100,0001., by calls on the proprietors of shares in the undertaking; and by section 5. they were authorized to borrow so much of that sum as should not be paid by the proprietors. By section 10. the company were authorized to receive in one sum the whole amount of the calls to which the proprietors were made liable by that act, and to grant a bond for the payment of an annual sum to be agreed on between the company and the proprietors, not exceeding 51. per cent., and such bond was to be distinguished by the words “shareholder's bond.” A form is then given by the act; and that given to the testator was as follows :“ Birmingham and Liverpool Junction
Canal Navigation. “No. 24.
Shareholder's Bond. “ By virtue of an act passed in the fourth
year of the reign of King William the Fourth, intituled 'An Act to enable the Birmingham and Liverpool Junction Canal Navigation Company to raise a further sum of money,' we, the company of proprietors of the Birmingham and Liverpool Junction Canal Navigation, in consideration of the sum of 1,025l., being the aggregate amount of the calls on forty-one shares in the said canal, to which Thomas Telford, of Abingdon Street, in the city of Westminster, civil engineer, is by the said act made liable, to us paid by the said Thomas Telford, do hereby assign unto the said Thomas Telford, his executors, administrators, and assigns, all and singular the rates, tolls, and duties arising by virtue of the said several acts relating to the said navigation, and all the estate, right, title, and interest of the said company, in and to the same; to hold unto the said Thomas Telford, his executors, administrators, and assigns, as a security for the payment of the sum of 511. 5s. per annum, payable half-yearly, that is to say, on the 20th day of February and the 20th day of August in every year. Given under the common seal of the said company, this 20th day of August 1834.”
(Sealed with the common seal.) A memorial of the shareholder's bond was duly entered in the books of the company of proprietors of the Birmingham and Liverpool Junction Canal Navigation, pursuant to act of parliament on the day of 1834, by
By section 11 the power comprised in the 7 Geo. 4. c. xcv. is given for the recovery of the annual sum due to the holders of these bonds by the appointment of a receiver of the rates, tolls, and duties by the Justices of the Peace, containing the words “in addition to such remedies as the holder of such bond may be entitled unto at law or in equity."
Each of these companies was seised of very considerable real estate as part of its joint stock or capital, and the question was, whether the shares and bonds held by the testator were within the provisions of the Mortmain Act.
Mr. Roupell and Mr. Cairns, for the defendants, the Institution of Civil Engineers.—The several acts of parliament incorporating the companies enacted that the shares should be personal estate and