be delivered up, and that the action should be restrained. In this bill Mr. Watteeu stated his residence in these terms: "of Brussels, in Belgium, but now sojourning at 18, Salisbury Square, Fleet Street, London."

A motion was now made by Mr. Billam, that Mr. Watteeu should give security for costs, on the ground that he was residing at Paris, without any probability of returning to England.

Mr. Saunders, for the motion.

Mr. Schomberg, for Mr. Watteeu.-It is established that where A. files a bill against B, and B. files a cross bill against A, A. has no right to require B. to give security for costs-Desprez v. Mitchell (1), Sloggett v. Viant (2), Vincent v. Hunter (3). By analogy, where A. brings an action against B, and B. files a bill against A. in respect of the same matters as are the subject of the action, A. has no right to require B. to give security for costs.

KNIGHT BRUCE, V.C. directed the motion to stand over, in order that the opinions of the officers of the Court might be obtained.

The motion was again brought on on a subsequent day.

KNIGHT BRUCE, V.C. said, that the officers differed in opinion (4); and that one of the Registrars and Mr. Berrey were of opinion that, in this case, security for costs ought not to be required. He had had the advantage of obtaining the opinion of the Master of the Rolls and Sir James Wigram, and they took the same view as the Registrar, to whom allusion had been made, and Mr. Berrey. That, he added, was his own view.

Motion refused, without costs.

(1) 5 Madd. 87.

(2) 13 Sim. 187.

(3) 5 Hare, 320.

(4) It was understood that Mr. Berrey and Mr. Monro thought that security for costs ought not to be required; and that the other Registrars thought that the defendant was entitled to security for costs.

Costs-Priority of Lien-Mortgagees.

A suit was instituted to ascertain the rights of the plaintiff and others to certain property: the plaintiff pending the suit made three mortgages of his share to different persons who were brought before the Court by supplemental bill. A decree was made declaring the plaintiff entitled to one-fifth of the estate, and directing the costs to be paid as between party and party out of the aggregate fund. The first mortgagee now presented a petition for payment of his principal, interest and costs. The plaintiff claimed the extra costs as a prior charge; this was resisted by the second mortgagee: - Held, that the plaintiff was not entitled to the extra costs, but that the second mortgagee was entitled to take the fund, leaving the plaintiff's costs in that respect unpaid.

This suit was instituted to ascertain the rights of the plaintiff and of his brothers and sisters to certain property, under the marriage settlement of their parents, dated the 21st and 22nd of September 1807. The bill was filed on the 6th of June 1844, and on the 19th the plaintiff executed a mortgage of his interest to one Richard Rhodes. On the 11th of October the plaintiff executed a second mortgage to another party; and on the 7th of March 1845, a third mortgage to other persons. All the mortgagees were subsequently brought before the Court by supplemental bill. On the 17th of January 1848, a decree was made, which ascertained and declared the plaintiff and his brothers and sisters to be entitled to the settled property in fifth parts, and directed the costs of the plaintiff and the defendant in the suit to be paid as between party and party out of the aggregate fund. And the plaintiff's one fifth was carried to a separate account, entitled, "the account of the plaintiff and his mortgagees." Richard Rhodes, the first mortgagee, now presented his petition to be paid his principal, interest and

costs.

Mr. Bethell and Mr. Bilton, for the petition.

Mr. Stuart, Mr. Malins, and Mr. Steere, for the plaintiff, contended, that the extra

costs of the suit, as between solicitor and client, should be paid, by reason that the extra costs were a first charge, and that the plaintiff's solicitor had, at his own costs, procured the fund to be brought into court. That the three mortgages were all made whilst the suit was pending, and that the mortgagee's solicitor had notice. There was no petition by the solicitors of the plaintiff claiming any lien on his share, or for a stop order.

Mr. Rolt and Mr. C. M. Roupell, for the second mortgagee, resisted the payment of the plaintiff's extra costs of the suit.

Building Society-Purchasing MemberMortgage-Redemption-Account.

The plaintiff, a member of a building society constituted under the 6 & 7 Will. 4. c. 32, and which, by its rules, was to continue till each share had realized 120l., became the purchaser of twelve shares and a half share, that is, discounted his shares, receiving the present value; and in consideration of 7501., advanced to him in respect of such shares, executed a mortgage to the society for securing his subscriptions and other payments. This deed did not specify the terms upon which the mortgage was to be redeemed; but it contained a power of sale in case the plaintiff made default in his payments; and the trustees were to retain out of the proceeds all payments due and which should afterwards become due from the plaintiff to the society up to the calculated period of its determination; and it was declared that all payments thereafter becoming due should be treated as due at the time of the sale. By the 62nd rule of the society, a purchasing member was to be entitled to

NEW SERIES, XVIII.-CHANC.

redeem, upon payment of the difference between the amount secured by his mortgage and the amount of his subscriptions. Upon bill by the mortgagor to redeem, -Held (affirming the decision of the Court below), that the Master, in taking the account of what was due upon the mortgage, was to calculate the probable duration of the society, and to treat the future accruing subscriptions, &c. up to that period as due at the time of redemption.

This was an appeal from the decision of Wigram, V.C., as reported in 17 Law J. Rep. (N.s.) Chanc. 257, where the facts of the case are fully stated.

Mr. Rolt and Mr. Prior, for the appellant. The Solicitor General and Mr. Beavan, for the defendants, the association.

Jan. 30.-The LORD CHANCELLOR. The decree in this case directs a redemption, which is not objected to by the defendants. There is not in the mortgage deed any provision for redemption; the terms, therefore, on which it ought to take place are to be collected from other sources. I have no doubt of the correctness of the Vice Chancellor Wigram's construction of the mortgage deed. The error of the plaintiff seems to arise from the supposition, that the mortgage was to secure the company the sum advanced to him; but such is not the case. The sum advanced was only in anticipation of the value of the shares on winding up the affairs of the company, and the mortgage which is to secure the payments which the company stipulated for, is the consideration for such shares, and constitutes part of the fund out of which the value of such shares was ultimately to be taken; the recitals and provisions of the deed are not capable of any other construction. But the part most applicable to the present case, the provision for selling the property, is most conclusive. For, contemplating the event of the plaintiff not making the monthly and other payments, it gives the company the power of selling the property, the proceeds of which they are to retain in respect of all subscriptions and other payments, as should be then and should thereafter become due and owing and payable in respect of such shares, calculating the probable duration of such association; it being agreed, in case such

3 N

sale should take place, that all monies, which should at any time afterwards become due in respect of the said shares, should be considered as due at the time of such sale, and that the same should be fully deducted and paid out of the monies received, and the amount should be fully calculated accordingly. It is obvious, there not being any stipulated terms for redemption, that the plaintiff cannot be entitled to redeem on terms less beneficial to the association than those stipulated for in the powers reserved to themselves for selling-powers which are not departed from by the decree for the redemption. Those, therefore, are the terms binding upon the parties, and of this construction there cannot be any doubt. But, then it is said, such terms are different from the rules and regulations of the association. To this there are two answers: first, there is no such difference; secondly, if there were, the deed alone constitutes the contract between the parties upon which the plaintiff rests his case, not seeking to have it altered, but confirmed. This excludes

the necessity of inquiring into the first objection. I cannot, however, but observe, that I have not been able to discover any such departure, in the deed, from the provisions of the rules and regulations as has been suggested. The 37th rule provides for monthly payments; the 59th for other payments" until the objects of the association shall have been fully accomplished." The 48th rule describes the security to be given, as a security "for the future payments in respect of such share or shares." The 58th rule is inaccurate and obscure; it relates to the power of sale to be inserted in the mortgage, and not to redemption, and it provides that from the proceeds of the sale the association shall retain all such principal subscriptions and other payments as shall then be due, owing and payable under and by virtue of the rules and mortgage. Now, the money advanced is not due nor payable by the party receiving it; but the subscriptions are payable during the continuance of the association. The security taken is to secure such payments. Subscriptions "then due" cannot mean subscriptions actually become due in point of time; for if so, the shareholder, having received the whole estimated value of the shares, would be entitled to

have the property restored to him, deducting only those subscriptions the time for the payment whereof has actually arrived. The 62nd rule is directly applicable to the present case, since it relates to an application for the redemption of the mortgage, and it is quite conclusive; for it provides that upon redemption the shareholder shall have the amount of his share of the profits, and the subscriptions paid deducted from the full amount expressed to be secured in and by such mortgage; but the 48th rule directs security for the future payments in respect of such shares or share, not for the money advanced. I am, therefore, of opinion that the mortgage deed, if that were material to the case, does not depart from the rules and regulations, and on that principle the decree is right. The future payments are to be taken at their full value; and the decree as to costs is correct. appeal must be dismissed, with costs.

The

FITCH v. ROCHFORT.

Pawnbrokers' Act, 39 & 40 Geo. 3. c. 99. -Usury Law-Pawnbrokers' Transactions limited to 10l.-Injunction.

A pawnbroker is not disqualified from lending a sum exceeding 101. upon a deposit of goods, upon such terms as to interest as are allowed by the 2 & 3 Vict. c. 37.

A pawnbroker advanced a sum of money, exceeding 10l. upon a deposit of goods, with power of sale, and by the contract (executed in duplicate), stipulated for interest at the rate of 3d. per month for every 20s. lent; and in case of sale that he should retain the surplus, if not claimed by the borrower within three years, and that the goods might be delivered up to any person who produced the duplicate and paid the debt :-Held, that this contract was not invalid on the ground that the lender was a pawnbroker, and had reserved to himself the usual advantages stipulated for in a pawnbroking transaction.

A plaintiff who had obtained an ex parte injunction, which was afterwards dissolved on the ground of concealment of facts,-Held not to be precluded from making an application for another injunction upon the

merits.

The plaintiff, Mrs. Fitch, a married woman, had, on several occasions, deposited various articles of plate and jewellery with the defendant Rochfort, a pawnbroker, as security for monies advanced by him to her. In November 1845 the sums, so advanced by the defendant, amounted to 1,3837. An arrangement was then come to between them that the whole of the deposited property should be divided into nine distinct parcels, and each parcel be made the subject of a distinct contract, so as to enable the plaintiff to redeem any particular parcel on the payment of the amount relating thereto. The plaintiff,

accordingly, signed nine distinct contracts, which were numbered consecutively, and contained in a book of the defendant, in which no pawnbroking transactions were inserted, and a duplicate of each contract was given to the plaintiff; and on each was indorsed a list and description of the property, and the amount for which it was deposited as a security, which, in each case, exceeded the sum of 10l. The contracts were all similar in terms to the following: -"Contract No. 1.-Duplicate.-I, Mrs. Fitch, of York Terrace, hereby authorize Mr. T. Rochfort, of &c., twelve months after this date, if not sooner redeemed, to sell by auction or private contract the articles specified on the back hereof, my property, on security of which he has this day lent me 6787., at interest at the rate of 3d. per pound sterling per month, redeemable by me during the first month, paying one month's interest at that rate, and during any future half-month, paying any interest at that rate to the end of the current half-month; and if the articles be sold as authorized, Mr. Rochfort is, out of the proceeds, to pay all expenses and the principal and interest, at the rate above mentioned, to the day of sale, and to pay the surplus (if any) to me, if demanded within three years. But in case of any deficiency on sale of this or any other property deposited by me with him, I agree to repay such deficiency. Until sale, Mr. Rochfort is empowered by me to deliver the articles to any person, producing the duplicate thereof, upon his or her paying him principal, interest, and all expenses. Dated this 27th day of November 1845. "Ellen Fitch."

The defendant advertised these articles, with others, for sale by auction, on the 7th of March 1849, and caused a catalogue to be printed, containing a description of them, and sent the said catalogue to the plaintiff on the 3rd of March.

On the morning of the 7th of March the plaintiff filed her bill for an injunction to restrain the sale, alleging that it had been agreed between her and the defendant that the property should not be sold, but retained by the defendant; and charging that the defendant was not entitled to sell them as unredeemed pledges, because the amount secured exceeded the sum authorized to be advanced under the Pawnbrokers' Act. On the same day the plaintiff obtained an ex parte injunction upon affidavits. The defendant afterwards moved before the Vice Chancellor to discharge the injunction, and by the affidavits it then appeared, for the first time, that the plaintiff had expressly given the defendant a power of sale in case of default. The Vice Chancellor refused to dissolve the injunction; and the defendant, thereupon, renewed his application before the Lord Chancellor, who was of opinion that the suppression of so material a fact, at the time of applying for the injunction, was quite sufficient ground for dissolving it, whatever the merits of the case might be; and he dissolved the injunction accordingly.

The plaintiff then moved, before the Vice Chancellor, for an injunction upon the merits, insisting that at the time of signing the agreements she was not aware of the effect of them, but thought that she was merely complying with the forms requisite upon an ordinary pawnbroking transaction.

The defendant, by his affidavits, altogether denied that there was any agreement or understanding that the goods should not be sold in case of default; and that previously to the contracts now in question the plaintiff had signed similar contracts, and well understood the nature and effect of them; and that he would not have made the advances except upon the terms of having such power of sale.

The Vice Chancellor granted the injunction, on the ground that the contracts were void, the transactions being within and offending against the provisions of the

Pawnbrokers' Act, 39 & 40 Geo. 3. c. 99.

The defendant now renewed his motion, by way of appeal, before the Lord Chan

cellor.

Mr. Rolt and Mr. Wright, for the defendant, insisted, first, that as the plaintiff had obtained one injunction, which had been dissolved, she ought not to be allowed to come a second time for the same purpose.

[The LORD CHANCELLOR.-A party who obtains an injunction through misrepresentation or concealment of the facts ought to lose it; but it can hardly be contended that when an injunction is dissolved on those grounds, the party may not apply again upon the merits.]

The argument was then continued.— The question in this case is, whether a person, from being a pawnbroker, is incapacitated from doing what every other person may do, namely, lend money at any rate of interest, provided he does not take any security upon land. There is nothing in the 2 & 3 Vict. c. 37. to prevent a pawnbroker taking advantage of that act, if the sum advanced is above 101. Transactions above 10l. are not within the Pawnbrokers' Act-Pennell v. Attenborough (1). It does not follow necessarily that every loan made by a pawnbroker is made by him in his character of pawnbroker. Here the requisites of the Pawnbrokers' Act were not complied with, as it was not intended to be a pawnbroking transaction. The only The only argument that can be raised on the other side would be founded upon the 3rd section of the 2 & 3 Vict. c. 37, which declares that nothing therein contained shall extend to repeal or affect any statute relating to pawnbrokers. But that cannot affect transactions where the advance is above 10., as pawnbrokers' transactions are limited to that amount-Pennell v. Attenborough.

broker to be one who shall receive by way of pawn any goods for the repayment of money lent thereon. And all devices for escaping from the provisions of those acts have failed-Cowie v. Harris (2), Armstrong v. strong v. Armstrong (3), Tregoning v. Attenborough (4). Under an illegal pawnbroking transaction no title to the property passes. [The LORD CHANCELLOR. From the 30th section of the 39 & 40 Geo. 3. c. 99. it is clear that a pawnbroker might lend any sum of money at the then legal rate of interest without being a pawnbroker; why may he not now lend sums above 107. whilst acting as a pawnbroker?]

Here he lends money upon the pledge of goods.

[The LORD CHANCELLOR.-If the pledge of goods makes the difference, then it will come to this that a man may borrow 1007. upon his personal security at any rate of interest; but if he has goods which he might pledge to reduce the rate of interest, he is not permitted to use them for that purpose except he can obtain a loan at 51. per cent.]

The 3rd section of the 2 & 3 Vict. c. 37. was altogether nugatory, unless it meant that pawnbrokers after the act were to remain exactly in the same position as they were before.

The LORD CHANCELLOR (without calling for a reply). No doubt this is an extremely important case, because of the effect it has upon the community at large. I do not propose to make any order until I shall have had an opportunity of examining the authorities more distinctly; but as the facts are all before me, I will state what now occurs to me. It does not appear to me that there is any doubt upon the construction of the act, finding it confirmed by two decisions at law. The thing lies in a very narrow compass, between the law as it stood before and subsequently to the passing of the 2 & 3 Vict. c. 37. Before the Pawnbrokers' Act nobody could take more than 5l. per cent. That was the limit that was imposed upon loans; but it was found that this was very incon

(2) Moo. & M. 141.

(3) 3 Myl. & K. 45; s. c. 3 Law J. Rep. (N.S.) Chanc. 101.

(4) 7 Bing. 97; s. c. 9 Law J. Rep. C.P. 28.