VICE-CHANCELLOR SIR W. PAGE WOOD: I should be very reluctant to make a precedent for allowing a creditor to appear in opposition to a petition of this kind. It is provided by the statute that the Stannaries Court shall act "unless the Court of Chancery shall otherwise direct." The proceedings in that court, it is true, are not like those under a winding-up order. After a windingup order, a creditor is required to make application to the Court for liberty to proceed; but in the Stannaries Court there is no jurisdiction to restrain a creditor. If, however, on every application of this nature, I were to allow creditors to appear and oppose the petition, there would be no limit to the costs which might be occasioned. The case is one of first impression, and, therefore, I shall give no costs; but I am of opinion that a creditor is not entitled to appear. Order made for winding up the Company. 1862. RETRETOIL AND MESSER Judgment. LANGRIDGE v. PAYNE. July 10th. Mortgagor and MortgageeStipulation for THIS bill was filed by a mortgagor, to restrain an eject- Performance of ment by the mortgagee. The mortgage was in common form, and dated the 18th of October, 1861. The principal money and first payment of interest fell due under the covenant on the 18th of April, 1862. CovenantReceipt of Interest-- Waiver. Agreement in writing not to call in a mortgage for two years, the mortgagor fulfilling his covenants. On one occa On the 15th of January, 1862, an agreement in writing sion within the was signed by the solicitors of the mortgagee and mort two years interest was not paid on the day, and the mort gagor shortly afterwards, after giving notice that he was no longer bound by the agreement, demanded and received payment of the interest and incidental costs:-Held, that this was a waiver of the default; and injunction granted to restrain an ejectment brought within the two years. 1862. v. PAYNE. Statement. gagor on behalf of their respective clients. By the third LANGRIDGE clause of this agreement it was provided, that the mortgagee should not call in the money within two years from the date of the agreement, the mortgagor fulfilling his covenants. On the 18th of April, 1862, the mortgagor having forgotten that the interest was due failed to make a tender, and was served on the 21st with a notice by the mortgagee's solicitor, requiring payment of the principal and interest moneys. There were some subsequent interviews between the mortgagee's solicitor and the mortgagor; and on the 9th of May following the mortgagee's solicitor sent the mortgagor a letter, stating, that in consequence of the mortgagor's having failed to pay the interest on the day it was due, the mortgagee would not be bound to continue the security for the two years previously stipulated for, but would exercise at his discretion whatever rights he might be entitled to as mortgagee; and the letter went on to request payment to the bearer of the sum of £15 for the half year's interest, and the sum of £1: 11: 10 for costs of the above-mentioned notice. These payments were accordingly then made. On the 26th of May, 1862, the mortgagee issued his writ in ejectment. The mortgagor's solicitor thereupon wrote to the mortgagee's solicitor, stating that arrangements had been made to pay off the mortgage. Notwithstanding this, the mortgagee on the 10th of June filed his bill of foreclosure; and after some correspondence the bill in this suit was filed on the 3rd of July following. The Plaintiff insisted that the subsequent receipt of the interest was a waiver of the default made in non-payment of interest on the 18th of April, and that the Defendant was bound by the agreement to allow the money to remain for the stipulated period of two years. The Defendant con tended that he was no longer bound, as the mortgagor had made one default in fulfilling his covenants. 1862. LANGRIDGE v. PAYNE. Mr. Rolt, Q.C., and Mr. F. H. Colt, for the Plaintiff, mentioned the case of Demarue v. Royant (a), before ViceChancellor Wood, 12th March, 1858, on the question of waiver; and Husband v. Davis (b), on the question of payment. that (a) Demarue v. Royant. Bill by mortgagor, stating indenture dated 23rd February, 1857, between Plaintiff and Defendant, whereby, after reciting that Plaintiff was indebted to Defendant, who had agreed to give time on having payment secured by the assignment therein contained, and collaterally by four joint and several promissory notes of Plaintiff and two sureties, at six, twelve, eighteen, and twenty-four months, the Plaintiff assigned certain furniture, subject to redemption if the Plaintiff should take up, honor, and pay the said several promissory notes, and each and every of them, when and as the same should respectively become due. Proviso, that in case Plaintiff should make default in payment and honoring of any of the notes when due and payable, it should be lawful for Defendant to seize and sell the premises; and that until default should be made in payment and due honoring of the said promissory notes, or any or either of them, contrary to the provisions for redemption and covenant for payment aforesaid, it should be lawful for the Plaintiff to enjoy without interruption. The second note was not paid on the day it fell due, the 26th February, 1858; but a tender of the amount, in post-office orders in which the Defendant's name was incorrectly stated, was made on the following day and refused, and an action was immediately commenced on the note, and settled by payment of the debt and costs, for which a receipt was given, with the words added, "without prejudice to Mr. Royant's rights under the bill of sale." On the 8th of March the Defendant took possession of the furniture. The bill was filed for an injunction on the 12th of March, 1858. An injunction was granted, without prejudice to any question in the cause, restraining the Defendant from continuing in possession of or selling the premises, unless and until default should be made in paying the remaining notes, until the hearing or further order. (b) 10 C. B. 645. Argument. 1862. LANGRIDGE v. PAYNE. Judgmeut. Mr. Shebbeare, for the Defendants, cited Edwards v. Martin (a). The VICE CHANCELLOR held that the default had been waived, and granted an injunction to restrain the ejectment until the hearing, on the Plaintiff's undertaking to abide by any order the Court might make as to judgment in the action, at the hearing or otherwise. (a) 25 L. J., Ch., 284. June 28th & 30th. Will-Con struction Power-Exe cution. Testamentary power to ap point a trust MATTINGLEY'S TRUSTS. UNDER a settlement of the 9th of November, 1848, Robert Mattingley had a testamentary power to appoint a trust fund fund among all among all or any of his children. He made his will, dated or any of donee's chil dren. Be quest by donee as follows: "all my personal estate upon trust to pay all just debts and funeral expenses; to pay to my daughter E. £19; and to my the 29th of June, 1861, which, after appointing executors, proceeded as follows:-"I give them all my personal estate, in trust to pay all just debts and funeral expenses. To pay to my daughter Eliza 'the sum of £19, and to my daughter Jane the whole of my furniture and household effects. And as to my money in the funds and all my residue of my personal estate, upon further trust to invest daughter J. the whole of my furniture and household effects; and as to my money in the funds, and all my residue of my personal estate upon further trusts for the benefit of J. At the date of the will and of the death, the testator had no money in the funds, and the trust fund consisted of a sum of Consols:- Held, that the will was not an appointment. and The testator died on the 4th of August, 1861. The trust fund consisted, at the date of the will and of the death, of £344 88. Consols, and the testator had not, at either of these dates, any money in the funds of his own. The fund was paid into court, and the case now came on upon the petition of the testator's daughter Jane. 1862. MATTINGLEY'S Statement. Mr. Fischer, for the petitioner.-The words "all my money in the funds" would have constituted a specific bequest if the testator had had any such property; and, therefore, though the power is not referred to, the bequest must be taken to point to the trust fund: David's Trusts (a), Walker v. Mackie (b), Webb v. Honnor (c), Sugden on Powers (d). Mr. Lindley and Mr. Bagshawe, for the respondents, were not called upon. Argument. VICE-CHANCELLOR SIR W. PAGE WOOD: I have considered the authorities upon this matter, and I do not think it necessary to hear the respondents. The case falls within the class represented by Webb v. Honnor, and not within that of which Walker v. Mackie is an example. The point to be ascertained in all these cases is, whether June 30th. Judgment. (a) Johns. 495. (c) 1 Jac. & W. 352. (d) 7th ed. p. 374. |