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r CORWEN.

DOLGELLEC.

-BARMOUTH.

CHAOOE OF SHEEP-STEACJIXG.

PWLLHELL

TOWYN.

LLANGOLLEN.

RUTHIN.

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RUTHIN. APPEAL FROM THE RUTHIN COUNTY COURT. In the Vice-Chancellor Stuart's Court,, Liucol&'s Inn, on Tues- day, Nov, Slh, 1869, the Vice-Chancellor gave judgment in the easeof John Powell, respondent, v. Gabriel Roberts and others, nppcllatits.^Thc! Vice-Chancellor, after hearing the counsel for the appellants,, and without culling upon the counsel for the respondent, said--4 think that this decree cannot be alterod, and that the appeal must be dismissed with costs. The first ob- jection to the decree is on the ground of jurisdiction, and the leasned ju ige seems to have been impressed with that as a serious objection, although he overt u!e,i it. But it seems to me that this suit-is more clearly within the language of the Act of Parliament than the learned judge the ugh t. The wor.is of the Act of Parliament are, that the County Ccurt shall have juris- diction in all suits for foreclosure and redemption. A suit for redemption in which the right to redeem i. resisted is still a suit • of .redemption, and it seems to me imolossble te read this Act of Parliament as saying thd it gives jurisdiction in all suits for redemption except those in which the right to re teem is resisted. -I can put no such construction upon the words, for th3 words "-•all suits for redemption seem to me as wide as can well be. II have looked to see whether in the books of practice, suits for redo in ptionr where the right to redeem is resisted, are treated as any other th&n suits for redemp ion and I find in all the text books, as well as in the books of report, that a suit for redemption in which the Tight to redeem is resisted, is still treated ns a suit for redemption. In Mr Seton's book, under the heading of ■"Decrees in• suits to redeem," this is said: If part of the costs 1 of the suit (that is a suit f r redemption) have been cuused hy the resistance of the mortgagee to a redemption decree, he will nay so much at the coats of the suit, and receive the re t. I have turned to Sir Thomas Plumer's decree in the cilse of Harvey v. TEebbutt, whichi is in 1st Jacob and Walker's Reports. That was a salt whorovthe right to redeem was resisted on the ground that there had been a decree by the Coart-od Exchequer for fore- t-olcsure. A more formidable resistance to alright to redeem than setting up a decree by which the mortgagee is said to be fore- closed cannot well be imagined, but I see that Sir Thomas iPlwner treated-ttiat as, and called a suit for redemption, for he says the question is whether, upon a bill filed to redeem, the mortgagee is to be deprived of that "which is usually allowed to mottgagees-namely, the payment of tnscecsts and the decree iitiiUiat case went on with a declaration that the plaintiff ought to be let in to redeem, Inotwithstanding the decree made in the -oauce which is stated. In dealing with the costs, it sa.vs, "And it it. wondered that the said Master do tax all parties the costs of this-suit, so far ae the same have been occasioned by the defend- ants controverting the plaintiff's right to.-redeem." All this -shews that in the-view .of the court, technically as well as in the ordinary interpretation of language, a suit to rc-deern, where the right to redemption is resisted, is still a suit to redeem. There- ;iare,S feel-in no degree embarrassed with those doubts as to the ,i jurisdiction wbiei the learned judge entertained, and I think that he oa iie to the right conclusion in holding that the plaintiff waaentitled to sustain this suit, and that there was jurisdiction ,in tha-rourt to entertain it. I see that the learned judge seems .to have been struck with this-tb-at the County Court had n) power to cancel the deed. But in cases of this kind it is no part of the direction- to.cancel, the deed. In the .ep.se which I bave fluoted.ef Harvey v. Tebbutt, there was no direction other than that, notwithstanding the decree the plaintiff choasld be let in to a-edeenj. :Here the jj&dge states very properly, I ;tb £ nk, upon the transaction of the sale his. opinion timet it was a void transaction, .-eoiild not; be suaf&ined, and that there was ne season why the jalaintiff-aloukl not be allowed to refieem but as to cancelling tike deed, t?>e decree uie silent upon it, and it woe e thing in no degree nesensary, asd indeed I think would not be ptoperia a suit (Ctfiillis kind. The other tbj:-ctions to tkis-decree ans iCiol'y unsus- tainable. Where a mortgagee has a power of sale, t big-court has al- ,waFsipeen,=ro: ul to see that that power was regulaul" and fairly exercised, if the exercise of it is insisted upon by tiseinortgagee. A ease occurred to>.me. some time age of Jenlcine Y. Jones. where, although the .mortgagee knew that the mejjljjager was anjjious to redeem, there^vas no legal tender. At the' sale the jnort&'ag. r attended, and struggled to be allowed to redeem, and said that bo ws.s ready, to ledeem, but there was nothjr g like a legal lender. 3'he court set aside that sale, and held tiiit not- withstsnding otlier f ormalities had been properly observed, there was not a,fair at proper exercise of the power. This case I Must say. seems,to me to be,& gross one. It is a case in which tte nurtgagee, with the money in his poctoaL, proceeded -to sell by private contract. An 4LttePpt is made to ow that alt-tough the mone;" was.in his pocket,it was not in his pocket I5- any payment of the mortgager; btt the circumst&nces of tke trans- action are quitendfi,ieI)t to induce the court, when the question ds a bout the due, exercise of a power of sale, is a prodigious power—to say that ,is is not properly exercised. The case daes M-A rest thure. After having the money, which Mitu paid to bimiky Adams, who was tke solicitor of the trustees 4f a deed which was execut ed by A mortgager for the benefit of the creditors, ite not only by word <?f mouth, but by letter, said that he had been satisfied. ant:it does not stop eveas there. The "a terms of the power of sale are, upon default in payment withia six month. after notice. Sfhe notice is dated the 1st of March 1866, and tha sale was on -the 81st of August. Now altogether the case is a very gross one, the-auit a very, expensive one. and the only part of tlae decree with iwhich I am disposed to f nd fault is that it did not decree to the plaintiff the payment of the costs of so much of the suit as Sir Thesias Plujmer has done ic. the case of Harvey v. Tebhutt; but as the plaintiff is content with the decree as it stand*, it is not, I tifciuk, tor the court now to alter •it, therefore my only duty is to dismiss this Appeal with costs. I U.3 not think it neces-ary to notice tbe objection which is made about consolidating the mortgages. There was no right in Roberts as against Powell, who was mortgager of both these properties, to say that Powell should not redeeia without redeem- ing the mortgage of another which WM made by his mortgager. Mr Miller—Your Honour recollect* tkat Roberto was mortgagee of all. lots. The->Vice-Chancellor—I think it necessary .to observe this. This decree is in an unusual form, and J think considering the amount ql. property it ia a convenient form It does not direct an aecount of what is due to the plaintig^ the mortgagee, or anybody, jit only says au account is to ha taken of what is due from the plaintiff on the mortgage. It then goes on to direct 1 payment of what shall be so found due by the plaintiff into court within six moath". I think considering the J"e of the ques- tion between the trustees under the creditors' deed and Gabriel Roberts and these parties that was a very convenient and proper form of decree. As to the other objection, that the proper relief was at law and ot in equity, really one can hardly understand what that means. Mr Miller-Your Honour will excuse me for one moment, but I do not know whether your Honour has clearly understood that Gabriel Roberts was mortgagee of both these properties- The Vice-Chancellor-I quite understand that, but what has Mr Powell to do with that? I think the decree is perfectly right, and that the eases cited have no application-not the least. The case has been perfectly misunderstood, and I should not have thought it a case necessary to be brought before this court. Solicitor for the respondent, Mr Marcus Louis, Ruthin; solicitors for the appellant, Mr J. Carstairs Jones, Messrs Kelly and Co., Mold, and for the other appellants, Mr L. Adams, Ruthin.

RUABON.

LLANIDLOES.

WELSHPOOL.

LLANDYSILIO.

LLANFYLLIN.

LLANDRINIO.

THE SUEZ CANAL.

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