which authorised the adjudication in bankruptcy pronounced against him, and their Lordships would assume his argument in that respect to be well founded. Then was either of these detainers illegal? The illegality insisted upon was, that although Mr. Hayward was in prison at the time on a detainer under a judgment obtained against him for a sum exceeding 201., yet that the debt justly due from him at the time when the action was brought against him which ended in that judgment was in truth less than 207., and that therefore under the 8 & 9 Vict. c. 96, sect. 57, he was not liable to arrest at all, and that the detainers following on an illegal arrest were also void. His assertion was, that the debt really due from him was only 157., and that the addition by which it was raised to 201. and a fraction had been improperly made. The original debt was admitted to be this 157., and it arose from fees payable to a gentleman at the bar, for which amount Mr. Hayward gave his promissory note payable at a stated time, or on demand-which, it mattered not. The barrister lodged or deposited that note with a creditor of his own by way of security for what he owed, and as the note was dishonoured by Mr. Hayward when it became payable, an action was brought against the barrister by his creditor, and a writ was issued, the costs of which amounted to 31. 8s. It had been sworn to before this court that the barrister himself paid this 3/. 8s., and also a further sum of 17. on behalf of Mr. Hayward, and the debt was thereby raised to 19. 8s., the difference between which sum and the 20l. 1s. 10d. was made up of interest, which the clerk of the barrister's attorney had sworn was accurately computed. For this last-mentioned sum the barrister issued a writ against Mr. Hayward, and in this proceeding Mr. Hayward was ultimately taken in execution. It was possible that there might have been some mistake without dishonest motive, possibly some miscalculation of the interest. There might have been some reason to doubt whether the barrister was entitled to add the costs he had paid in consequence of the dishonour of the note by Mr. Hayward to the amount of the debt; but in his Lordship's judgment the addition of that sum, and of the interest and other items, was fully justified, and the addition of these particulars was such as an honest man might reasonably have considered that he was legally and properly entitled to make. But the action by the barrister was brought to recover an amount exceeding 201. Mr. Hayward was served with process, and did not defend the action. Judgment for 201. 18. 10d., the whole amount claimed, was accordingly legally and formally recovered against him. Upon that judgment he was taken in execution, and the Court of Ex., when applied to on the subject, had declined to interfere. The facts therefore were, [CHAX Feb. 12, 13, 14, and March 1. (Before the LORDS JUSTICES.) DOUGLAS v. CULVERWELL. Sale or mortgage-Fraud and pressure—SurprisUndervalue-Deed set aside. The plt. in 1842 being under great pecuniary pre employed a solicitor to procure him a loan as security of frecholds from a person to whom t were already mortgaged. The solicitor, heter introduced him instead to the deft., and at a we ing, held by appointment at the solicitor's of before the plt. a deed for his execution; but on being at it the plt. observed that it was not in the sam form as the earlier mortgage, and only erected. on an assurance that it should be treated as a w gage, and nothing more. The deed as framed i. an absolute conveyance to the deft. Soon efte proposal to redeem was made by the plt.'s frie and this was met by the deft.'s refusing to re-cery except upon payment to him of an exorbitant ban. in addition to his advance. The deft., to whom i plt. had given an authority to receive the rea's fr the tenant, continued to do so for nearly e years, the plt. being throughout that time walk redeem or to take legal proceedings; but is 180 he filed this bill to set aside the deed, and to oặca a reconveyance upon payment to the deft. of w was due. It was also shown that the mortgage 17. the deft's advance were together much belor value of the property: Held (affirming the decision of Stuart, V.C.), that w these circumstances the transaction must be set an as an absolute sale, and stand as a mortgage that an account must be taken of the rents as profits received by the deft. and set agais principal advanced by him, on which interes 5 per cent. must be allowed, and a reconce to the plt. was ordered on his paying what might e found due. This was an appeal by the deft. Mr. Culverwell for a decision of Stuart, V. C., which is reported length in 5 L. T. Rep. N. S. 484. The foll brief statement of the facts will therefore be s cient : The prayer of the bill was for a declaration that certain transaction concluded between the parties br deed bearing date the 4th Aug. 1842 was a mortg transaction only, and not an absolute sale by the p to the deft., and that if necessary the deed might rectified; for an account, and, upon repayment of wa if anything should be found due from the plt. = taking such account, for a reconveyance and delive to the plt. of the title-deeds to the property question. That property was a dwelling-house and g that a debt had been established against Mr. Hayward known as Heathbourne-cottage, situate at Busty, by a court of competent jurisdiction, and in his Lord-Hertfordshire, which shortly before the transactin ship's opinion there was no equity, according to legal Aug. 1842 had become the property of the pit. M phraseology, against the action itself. However, the Wm. Henry Alfred Douglas in fee, upon the recen Court of Ex. was clearly the sole judge of the death of his father. demands, and as that court had pronounced its decision, from incumbrances, but was subject to a l The property was then fr his Lordship thought that it was neither proper nor to a gentleman named Lovekin, which would e competent for any other tribunal of law or of equity to in 1860. enter into the consideration of the foundation of the debt. The present application must therefore be refused, but that would be done without prejudice to any other question which Mr. Hayward might be advised to bring before the learned commissioner. The deposit of 10. upon the appeal would be divided, and one-half would be returned to Mr. Hayward, and the other half would be paid to the official assignee. Lord Justice TURNER said that he was entirely of the same opinion. Solicitor for the official assignee, Mr. Aldridge, the Crown solicitor in bankruptcy. It was alleged that this property was then ofthe value of 7007. or 8007., and on the 23rd March-842 pt. mortgaged it to a Mr. John Peter Fowls to see repayment of 150l. and interest. In uly of the same year the plt. required money, ardhe app.ied in this mortgage, to procure him a further advance a Mr. Cooper, the solicitor who had seen concerne 100% from Mr. Fowler on security of a seemed senger from Mr. Cooper called upon the pit. mortgage. On the evening of the 4th Aug. 199 man's office, and on his doing so, he found there requested him to accompany him to that gentMr. Culverwell the deft. only. Mr. Fowler was Adams v. Sworder, 105,9 7.S.48 £ terms offered. [CHAN. The property was admitted to be of a value considerably in excess of the charge upon it to Mr. Fowler and the advance of 1017. by Mr. Culverwell. His Honour was of opinion that the deed was executed by the plt. when under great pecuniary difficulties; that Mr. Cooper (whose name no longer appears in the Law List) acted as the tool of the deft., and procured for him at a price greatly below its market value an absolute conveyance of the property, whilst the plt. believed that the instrument he executed would operate as a mortgage only, and he accordingly decreed that the deed of Aug. 1842 must be set aside, and that the deft. must pay all costs except those which had been occasioned by the plt.'s denial of the authenticity of the memorandum of agreement and letter. The V.C. also directed an account and reconveyance on payment of what might be found due. present, and his absence was excused by Mr. Cooper | relied upon the fact that he had not in any manner on the ground of illness; but, having introduced the bound himself in writing to reconvey, but had treated plt. to the deft. as willing to advance the money, Mr. the proposal made simply upon consideration of the Cooper (who was throughout the only solicitor employed) said that he had prepared the necessary security, and produced a deed which he requested the plt. to execute. Upon its being examined by the plt., he observed that it was not in the same form as the earlier instrument, and on his making a remark to that effect, Mr. Cooper replied, that it was not a regular mortgage, but that it was so worded that the deft. would receive all the rents by way of interest, for that the law would allow only 5 per cent. interest, whereas the deft. required a higher rate, and Cooper assured the plt. that he might look upon it in effect as a mortgage merely. The deft. was present throughout this conversation, and added that the plt. could at any time redeem, but that in the meantime he himself should receive the rents, should pay insurance and other outgoings, and the interest upon Mr. Fowler's mortgage, and should retain the surplus to his own use in lieu of interest. The plt. then executed the deed, declaring that it must be considered as a mortgage only; and then at the request of the deft. he wrote to the tenant, Mr. Lovekin, desiring him for the present to pay the rent to the deft. The loan agreed upon was then handed to the plt. The deft. appealed, but, as the appeal was against the decree, it was opened by Greene, Q.C. and Dauney, who supported his Honour's decision on behalf of the plt., relying upon the grounds of oppression and distress on the plt.'s part, and undervalue. app. In October of the same year the plt.'s sister and a friend named Potter called on the deft. and offered to redeem the premises, but he refused to allow the redemption, and taunted the applicants with having no written agreement giving them the right to redeem. He, v. however, offered to reconvey on receiving the amount of his loan together with a bonus of 50%, but he refused to accept the 257. which Miss Douglas offered him. Subsequently, the deft. refused to permit redemption on any terms, and for many years the matter dropped, the plt.'s excuse being that he was until shortly before the filing of the bill in 1860 in embarrassed circumstances, and without the means of redeeming, or instituting proceedings to enforce his rights. Greene, Q.C. was heard in reply. The following authorities were referred to :-Gibson Russell, 2 Y. & C. Ch. Cas. 104; Lincoln v. Wright, 4 De. G. & Jon. 16; s. c. 33 L. T. Rep. 35; Morphett v. Jones, 1 Swanst. 182; Sander v. Hooper, 6 Beav. 246; Curson v. Belworthy, H. of L. Cas. 742; Wood v. Abrey, 3 Madd. 417; Pember v. Mathers, 1 Bro. Ch. Cas. 52; Lord Middleton v. Elliott, 15 Sim. 531; Sibbering v. The Earl of Balcarras, 3 De G. & Sm. 735; Bromley v. Smith, 26 Beav. 644; and Gould v. Okeden, 4 Bro. Par. Cas. 202. At the conclusion of the arguments their Lordships reserved judgment until the 1st March, when From the date of the deed the deft. continued in Lord Justice KNIGHT BRUCE said:-The evidence possession of the property and receipt of the rents. in this case convinces me that the conveyance in quesThe deft. produced a memorandum of agreement tion was executed by the plt. with the intention that entered into between himself and the plt., whereby the it should take effect not as a deed of sale or an absolute plt. agreed to sell to him for 101. (which was the conveyance, but as an ordinary security for money, for the amount of the deft.'s advance) his equity of redemp-sum of 1017. which was advanced, and interest. It is tion in the property, to make a good title, and to execute a proper conveyance with the usual provisions and covenants. He also relied upon the pit.'s letter to Mr. Lovekin, which, as produced by him, began, "I beg to inform you that have sold the cottage." He denied having ever promised that the plt. should bat liberty to redeem, and he referred to Mr. Cooper's bil of costs, which was paid by Mr. Douglas, which contained charges as to the " purchase "of the property, and an entry thus, "Attending Mr. Culverwell thereon, who agreed to purchase the same." IIe insisted by his answer that any agreement for redemption ought to have been in writing under the Statute of Frauds, and he of course relied upon the length of tin during which he had been left in undisturbed possession-namely, from Oct. 1842 till 1860, when the bid was filed. true it is an instrument by which the plt. was to be relieved from the duty of repaying the money at any given time, and by which the deft. was, by way of interest, to retain to his own use the clear rents of the property comprised in the deed, which should arise between the time of execution and the time of repayment, subject to the duty of keeping down the interest on a subsisting mortgage. I am satisfied also that this understanding-this view of the matter the plt., before and on the occasion of the execution of the deed, before and when he received the money, was allowed, and knowingly allowed by the deft, to entertain. I am satisfied that the deed, at the time of its execution by the plt., was accepted by the deft. with the full knowledge that the plt. so understood the matterso received the 1017. If they meant it to be a loan at lawful interest, the rate does not appear to have been settled, unless it was meant that the deft. should retain the whole of the rents by way of interest till payment of the principal. The transaction was, as the law then stood, usurious and illegal, though a sale which would enable the vendor to repurchase the property was not necessarily contrary to the law against usury. He denied This transaction was not of that description. was, in my opinion, substituting a mortgage transaction, whether on usurious terms or not. The decree appears in the main right, though may properly receive some alteration. The introduction should be The contention of the plt. was, that the said memorandum of agreement and the letter from which the above extract is given were both forgeries, and he deposed that the only letter he wrote to Mr. Lovekin was in the following terms: "Please to pay the rent for the present, until you hear from me to the contrary, to the bearer Mr. Culverwell." ever having contemplated a sale, and he produced his sister and Mr. Potter, and a solicitor then employed by him, named Henderson, to prove that, upon the application for redemption in Oct. 1842, the deft. It made to correspond with the words of the order of the H. of L. The rate of interest should be mentioned. Whether that rate ought to be more than 4 per cent. I had some doubt; but, believing the Lord Justice to be in favour of giving 5, I will not oppose it. The whole costs of the suit up to the present time, except so much as the V.C. has declined to give to the plt., must be paid by the deft. The costs subsequent to the present time had better be reserved, to be dealt with hereafter by the V.C., whose decree has not been carried out. The length of time elapsed since Aug. 1842 creates no difficulty. The bill was filed in the year 1860. The deft.'s answer was filed in July 1860. Both parties to the transaction, as well as the witness, Mr. Cooper, are still living. If any inference unfavourable to either side ought to be drawn from the lapse of time, that inference is against the deft. The lease which has been granted will, I understand, be adopted. This, therefore, should be mentioned in the order. Lord Justice TURNER said :-This appeal is by the deft. from a decree of Stuart, V.C., by which the V.C. ordered the deed of the 4th Aug. 1842 to be set aside as an absolute conveyance, and considered only as a mortgage to secure 1017. advanced by the deft. to the plt. The decree is for an account and reconveyance. The case stated by the bill on which the decree is founded is in substance this:-The plt. executed a deed on the faith of an assurance on the part of the deft. that the deed, although on the face of it a deed of sale and not of mortgage, was so that the deft. might obtain higher interest than 5 per cent., the rate then allowed by law, and was in all other respects intended as a mortgage; that the deft. might redeem on paying back the principal, and that the deft. was in the meantime to receive the rents and keep down the interest on a prior mortgage and the insurance premiums, and retain the surplus. The case alleged by the bill is in truth that the deed in question was a mortgage in the form of a conditional sale to evade the law then in force against usury. The fact of the transaction being thus in the form of sale would account for the deft.'s possession. It was not, in the course of argument, disputed, if such an agreement existed, that, leaving out of consideration all question of lapse of time, the plt., notwithstanding the form of deed, was entitled to redeem. The question to be considered is, whether plt. has proved such an agreement. I am of opinion that he has. First, the docuinentary evidence sufficiently proves that this was not an ordinary transaction of sale. The agreement provides for the vendor paying all the expenses of the conveyance and investigation of title. This is ordinary in the case of a mortgage, but unusual in the case of a sale. There is also this remarkable provision, that the vendor should give an authority to the tenants to pay their rent to the purchaser. We have an agreement followed by an authority given to the tenants. It is impossible not to see how well adapted this was to the case of a conditional sale; how unusual, if not unprecedented, in the case of a bona fide absolute sale. According to the deft.'s statement, he refused to pay the money till the authority was given. This shows he was rather a mortgagee than a purchaser, who would be entitled to the rents without authority. See how the deft. meets the case with respect to what passed on the 22nd Oct. There is no denial of the truth of the material statements made by the witnesses; all the deft. does is to deny that lie intended it to be redeemed, or to say anything which might be understood as an honourable understanding that plt. might redeem. It is for this court and not for the deft. to judge what is to be implied from what he said. By reading the affidavit of what he did say I have no doubt of the inference. Some reliance was placed, on the part of the deft., on the absence of [CHAN Cooper's testimony. It is clear that the plt. had means of examining him. It is not so clear that he end not have been examined on the part of the det Cooper's son having assisted in the preparation of the deft.'s case. As to the question of pleading it w insisted that the plt. was not entitled to succeed an the ground of inadequacy of time, and Curson v. B worthy was cited. It is unnecessary to consider the The fact of a conditional sale being proved as alleged the right of redemption could not be lost in less time than if expressly reserved. The plt. is, theref entitled to redeem. Some objections were raised to the form of the decree, and it was argued that a catditional sale having been intended there should be account of rents. The answer is, that no bond j' conditional sale was meant. It was contrived merely as a devise for securing usurious interest. It was cotended, for the deft., that the account ought not to be directed with rests, as he was only a mortgage The account has been properly directed in my opinie The only question is, as to the rate of interest whe the decree hes omitted to specify, and the costs. interest should be at 5 per cent., that being the interest allowed in the case of relief against usury. As to the costs, I have doubts whether the exceptions in the deft.'s favour ought to stand. On the whole, 1 think the case is not so clear that we ought to reliev the plt. altogether. The deft. must pay the costs a the appeal. Solicitor for the plt., Mr. M. K. Braund. Monday, March 3. The (Before the LORDS JUSTICES.) Re DELAMERE (a Bankrupt). Bankruptcy Act 1861-Sect. 110-Suspension proceedings-" Full discovery of estate." Proceedings in bankruptcy had been suspended the 110th section of the new Act, 24 & 25 Vict. & 134, by which it is provided that the bankrup haring made a full discovery of his estate" apply for his discharge. The learned commissioner on that application considered that the bankragt was bound to produce a statement of assets ani liabilities to be supported by affidavit, and on thi being done it was found that the statement contains inaccuracies, and differed in some respects fres his earlier statement. Upon this the court ad journed the further hearing of the application sin die, but on appeal: Their Lordships thought the bankrupt entitled to g again before the commissioner to explain the entries in his accounts and schedule, and without expressing am opinion as to his right to an order of discharg ordered accordingly, upon the bankrupt's p mitting to be examined before the commissioner. This was an appeal by the bankrupt Mr. Delame?, shipowner and commission merchant, at Liverp from an order of Mr. Commissioner Perry, of the Liverpool District Court of Bankruptcy, under the following circumstances : a By the 110th section of the Bankruptcy Act 18 (24 & 25 Vict. c. 134), it is provided that "g such adjourned meeting a majority in number senting three-fourths in value of the creditors est shall so resolve, the proceedings in bankrupey sh be suspended, and the estate and effects of the bankrupt shall be wound-up and administered in sach ma as such majority shall direct, and the bankrupt barg made a full discovery of his estate, shat be entitled t apply for an order of discharge." Mr. Delamere was, on the 26th Oct. of last yet, adjudicated bankrupt upon his own petition. At the first meeting of his creditors, which was held on the 11th Nov., he made a proposal, under the provisions of the section already cited, that proceedings in bank. CHAN.] WILDE v. WILDE. [CHAN. ptcy should be suspended, and that his estate should | affidavit, may make another application for an order of wound-up and administered by a gentleman discharge." med Langton. To this the necessary majority of the editors assented, and a resolution having been passed at no further proceedings should be taken in the nkruptcy, the meeting was adjourned to the 23rd that month, upon which day the resolution agreed at the previous meeting was confirmed and _opted. Application was soon afterwards made to the comissioner to appoint a day for considering the question of e bankrupt's discharge. His Honour was, however, opinion that before he could make that order the inkrupt ought to produce some account or statement, be verified by affidavit, which should contain the full discovery of his estate" referred to in the section. ntil that should have been done his Honour declined make the order applied for. Accordingly the bankrupt signed and filed a statement of his liabilities and assets, accompanied by an ffidavit setting forth that the said statement so gned and filed by him contained a full discovery of is estate and effects at the time when he had presented is petition for adjudication, viz. on the 25th Oct.; nd, further, that he had not subsequently thereto quired any property of any description whatever, either in possession, reversion, or expectancy, excepting as was mentioned in the said statement. It appeared, However, that in some respects this statement differed from that which he had filed shortly after his adjudication; but upon this statement, and the affidavit in Support, a day was appointed for hearing his application for discharge. On that occasion the bankrupt himself was examined, when it appeared that his trade books did not contain a true record of his transactions, that they were insufficiently kept, and not fully made up, that they contained several inaccuracies, amongst which was a statement that a quantity of iron which was really the property of another person belonged to himself; that his statement contained no reference whatever to a cargo of coals contracted to be purchased from him by third parties who were to give timber in exchange for it, and that the bankrupt had wholly omitted from his statement of property and assets a watch and chain which the bankrupt had pledged, and on which he had received 57. It further appeared that the parties who had agreed to buy the coals had failed to perform their contract, and that a loss of 301. had been thereby occa-| sioned to the estate, of which the statement contained no account whatever. The learned Commissioner, in giving judgment upon these materials, said :—" There is nothing more ecessary than that a trader should so keep his books as that creditors may be enabled by an inspection of then to ascertain the condition of his affairs, and it was a duty the more incumbent upon the bankrupt so to keep them, considering the fact of his three previous insolvencies; and the omission to include the watch and chain in the list of his property has so far rendered his affidavit invalid, especially as in a case proceeding though all its stages in bankruptcy it would be necessary that they should be produced or accounted for. It is unnecessary to advert to other points of objection raised, for the order of discharge cannot, by reason of the omissions in question, now be granted; but inasmuch as such omissions in the account filed may have been accidental, the course adopted in some cases in bankruptcy, where the sitting for the last examination has been adjourned sine die in order that a fresh balance-sheet may be filed, will be followed in the present case. The order of discharge will be adjourned sine die, with protection for a month, and the bankrupt having filed fresh accounts in the form contained in No. 16 in the schedule annexed to the general orders of Oct. 1861, and verified them by The bankrupt appealed against the decision. Bacon, Q.C. and North supported the appeal, contending that the bankrupt was always at liberty to amend his schedule until his last examination. In the course which these proceedings had taken there was, of course, no such examination here. Lord Justice TURNER expressed his opinion to be, that the provisions of the Bankruptcy Act 1861 as to the last examination had no application to a case like the present, in which all further proceedings in the bankruptcy had been stayed under the 110th section. Lord Justice KNIGHT BRUCE said that it was his opinion, as it was that of his learned brother, subject of course to what the opposing creditors might have to urge, that the bankrupt ought to be allowed some further opportunity of explaining the tntries in his statement of accounts. Bardswell, for the opposing creditors, then brought to their Lordships' notice the various inaccuracies and omissions before referred to, and contended that no further opportunity to explain his statement ought to be conceded to the bankrupt. But if their Lordships still thought that he should have such an opportunity, he would not then enter further into the merits of the case. Their LORDSHIPS said that, without expressing any opinion as to the bankrupt's right to an order of discharge, they thought he should be enabled to apply again to the commissioner for such an order, upon the condition that the official assignee and the opposing creditors should be at liberty to appear before the commissioner and oppose the grant of such an order, and that the bankrupt should upon the occasion of his making such renewed application submit to be examined as the learned commissioner might think fit. Their Lordships would, however, reserve all questions of costs of the present appeal, and would direct the deposit which had been made by the bankrupt upon his appeal to be retained in court until further order, and they thought that in the meanwhile the bankrupt should have protection. Thursday, April 24. (Before the LORDS JUSTICES.) Wood, V.C. made an order accordingly, but, on appeal, This was an appeal by the deft. against an order made by Wood, V.C., upon the plts.' motion, that all proceedings in the suit might be stayed, and that the deft. might be ordered to pay all costs. The original hearing is reported in 6 L. T. Rep. N. S. 185, The bill was filed by the plts. against the deft., who had formerly been in their employment, for an account, to recover the books of account, and for an injunction to prevent the deft. from negotiating or parting with any bills of exchange upon which the plts. were or might be liable. The deft. left the plts.' service in May 1861, when a balance was claimed from him of moneys he had received as the agent of the The adamp 214. Elvey. Adamo 10 2. I.N.S. CHAN.] BOLDING V. LANE. [V.C. & plts. This was not paid, and the bill was filed, after | cumstances under which that payment had been which the deft. offered to account and pay any sum It would be raising quite an irrelevant issue, in al which might be ascertained to be due from him. It to which there would be the first inconvenience. was also admitted that two of the day-books were the court would be called upon to decide the merits missing. The plts., however, insisted upon an answer a case upon which the parties themselves had ari as to the books, and in his answer the deft. ascribed come to an agreement. Of course the ultimate r their loss to the inadvertence of one of the plts. The as to costs ought to depend, and would depend, state of the account was in the meanwhile agreed to which party was proved to be in the right. It appen.) between the parties, and in August of last year the to his Lordship that the case of Sivell v. Abrelo, deft. paid the amount appearing due from him, which (ubi supra) had been misunderstood; for all that ta amount the plts. accepted, without prejudice to their case decided was, that a plt. might apply to the cam right to the costs. to stay all proceedings, and that the deft. might a ordered to pay the costs of the suit; and that if t deft. made no objection, the suit might be disp in that manner; but in this instance the deft, did m an objection, and the authority mentioned did not p to this case. The point, however, was somew doubtful, and therefore the order of his Hencur V. C. would be discharged without costs; and, if the parties desired it, they might add an order dismis the bill without costs. Upon their motion, Wood, V. C. made the order mentioned, against which the deft. now appealed. Giffard, Q.C. and Pemberton supported the appeal, and referred to Roberts v. Roberts, 1 Sim & St. 39; Gibson v. Lord Cranley, 6 Madd. 365; Whalley v. Lord Suffiela, 12 Beav. 402; Burgess v. Hills, 26 Beav. 244; s. c. 32 L. T. Rep. 328; and Knox v. Brown, 2 Br. Ch. Cas. 186. Willcock, Q.C. and J. N. Colt, for the plt., supported his Honour's order, and cited Sivell v. Abraham, 8 Beav. 598; Langham v. The Great Northern Railway Company, 16 Sim. 173; North v. The Great Northern Railway Company, 2 Giff. 64, s. c. 1 L. T. Rep. N. S. 510; Nicholls v. Elford, 5 Jur. N. S. 264; s. c. 32 L. T. Rep. 221; Troward v. Attwood, 27 Beav. 85; and Thompson v. Knight, 4 L. T. Rep. N. S. 863. Giffard, Q.C. having been heard in reply, V. C. STUART'S COURT. Reported by JAMES B. DAVIDSON, Esq., of Lincoln's-in Barrister-at-Law. March 8, 10, and April 30. BOLDING v. Lane. Mortgagor and mortgagee-Foreclosure-Arrean interest-Acknowledgment-Statutes of Limit construction of. In 1831 the owner in fee of lands demised the for a term of 1000 years, to secure a mort debt and interest. In 1848 the devisee is j the mortgagor created a further charge on the sta lands. In 1856, by a deed to which the derisce the mortgagor was party, and which recited it amount of the mortgage-debt, and contained a acknowledgment by the devisee of the mortg that a further sum was due on the same securi for arrears of interest, the mortgage-debt and rities were assigned by the first mortgagee to plt. The bill for foreclosure was filed in 1861: Lord Justice KNIGHT BRUCE said, that the fate of the present motion depended upon two propositions, upon either of which, if the deft. was right, he would establish a title to relief against the order made. The first of these propositions was, that the transaction in the month of August last had wholly and absolutely destroyed the plts.' right to obtain any costs of the suit against the deft.; the second was, that if that transaction had never taken place, the question of the costs must have depended upon the merits, and that the time for a decision upon the merits had never yet arrived. His Lordship would not give any opinion on the first of these, the question, namely, whether the right to costs had wholly and absolutely departed by reason of the transaction in Aug. 1861; for the pre-Held, that the acknowledgment by the mortgage a sent purpose he would assume the answer to that question to be in the plts.' favour. Upon the other question, however, whether on an interlocutory application, there being at least one disputed question in the case, that question could, for the purpose of disposing of the costs against the deft., be considered, without the consent of the deft., as having been decided against him, his Lordship's opinion was that under such circumstances the deft. was entitled to object to have the question of costs decided at this stage of the cause. The deft. did so object, and his objection must prevail, and the order of his Honour must consequently be discharged without prejudice. Lord Justice TURNER was also of opinion that this order could not be sustained. That order, made upon the plts.' own application, was to stay all proceedings in the suit, making the deft. pay all the costs, and its effect was to prevent the deft. from going into evidence as to the facts which were alleged by his answer, and which might possibly have a material bearing upon the decision of the court upon this question of the costs. His Lordship did not think it in accordance with the practice of the court to make such an order. It was true that it might be a considerable inconvenience to the plts. that on the deft. submitting to pay them their demand, they were unable to come to the court to have the question of costs decided; but it appeared to him (the Lord Justice) that there was inconvenience on both sides. It was impossible to try the effect of the payment made by the deft. in satisfaction of the plts.' demand, without entering into all the cir 1856 took the case out of the operation of Statutes of Limitation, and that the plt. was ente to the whole arrears of interest from the date the mortgage. Although the word "charge" in the 42nd section the 3 & 4 Will. 4, c. 27, does not by its own for include a mortgage, yet it is a necessary result of c struction of the 40th and 42nd sections taken toget that mortgages should be included in the opere of the latter section. The cases of Dearman v. Wyche, 9 Sim. 570, Du Vigier v. Lee, 2 Hare, 326, observed on The following were the facts in this case:By an indenture of mortgage dated the 9th 1831, certain closes or parcels of land in Mater at Stowheath, in the parish of Wolverhampton, demised by Joseph Lane for a term of 1000 years Thomas Lane and Walter Sprott, to secure the re ment of the sum of 12817. 12s. 3d, and interest. indenture contained a covenant by Joseph Lag himself, his heirs, executors and administraps, payment of the said sum and interest, but the deed 1. not contain any power of sale. On the same Joseph Lane executed a bond to the said Thomas L and Walter Sprott for further securing the said s and interest. Joseph Lane died on the 28th Juy 1831, having le will given and devised to his nephew and heir-atthe said Thomas Lane, his heirs and assigns, am other hereditaments, all his freehold lands and here ments at Stowheath, which included the hereditament comprised in the aforesaid indenture of mortg |