CHAP. V. the annuity or rent-charge or judgment entered, by motion to stay proceedings on the action or judgment; and if it shall appear to the Court that such practices as aforesaid, or any of them have been used, it shall and may be lawful for the Court to order every deed, bond, instrument, or other assurance, whereby the annuity or rent-charge is secured, to be cancelled, and the judgment, if any has been entered, to be vacated. The statute contains other enactments declaring void all annuities as to infants, and relative to extortion of annuity brokers, and exceptions with respect to annuities charged on property of adequate value, whereof the grantor was seised in fee, &c. In considering the practical application of this statute, the distinction between the general jurisdiction of the Court over warrants of attorney, and the particular power given by the 6th section to the Court to interfere on summary motion, should be constantly kept in view. The first section declares the instruments void in cases where there ought to be, but has not been, a proper memorial; but that section gives the Court no power to interfere summarily to set aside any deed or instrument on account of a defect in the memorial; and, therefore, when that is the objection, although the deeds are void, yet no motion to the Court of Law can be made excepting to set aside a warrant of attorney, constituting one of the securities, and then that summary motion is founded principally upon the common law jurisdiction of the Court over warrants of attorney authorizing a judgment in that Court. (y) But when a case can by affidavits be brought within the precise terms of the 6th section, then a Court of Law has power (at least when an action is depending) to order the deeds and all other securities to be cancelled; but which enactment is not imperative, but merely discretionary, to vacate securities either absolutely, or on terms, according to the circumstances and justice of each case. (z) And even where too large a sum had been retained by the grantee's attorney with his knowledge, the Court refused to set aside the securities altogether, but referred the matter to the master to report what part of the sum charged for costs should be deducted.(z) (y) Per Cur. 1 June, A.D. 1829, the Court said that they had no jurisdiction to interfere on motion to set aside deeds, except in the few cases mentioned in the 6th sect.; but the Court ordered the warrant of attorney to be delivered up; and see decision on 17 G. 3, Tidd, 522, note (f), and where the warrant of attorney authorized only a judgment in C. P., but by mistake a judgment had been signed in K. B., the latter Court ordered the judgment to be set aside, but said they had no jurisdiction to order the warrant of attorney to be cancelled. 6 East, 241 a. As to the Common Law jurisdiction over warrants of attorney, post, 335, 6. (3) Girdlestone's case, K. B. 24th June, 1829, MS.; and see 1 B. & C. 61; 4 B. & Ald. 281; 6 B. & Ald. 61.; 1 Bing. 316. In a late case in the Common Pleas, the Court refused to hear a rule for setting aside an annuity, because it appeared that it had not been bonâ fide obtained on behalf of the grantor himself, but of a third person, who had agreed to purchase the interest of the grantee, but attempted to raise the objection in order to get rid of his agreement. (a) CHAP. V. SECT. III. Courts of Equity have more extensive jurisdiction to cancel annuity deeds than a Court of Law, and therefore in some cases, especially those where the deeds constitute a cloud over or incumbrance upon an estate, it may be preferable to file a bill in a Court of Equity in the first instance, because, as we have seen, Courts of Law cannot order the deeds to be cancelled, excepting in the few instances enumerated in the sixth section, and are even then frequently reluctant to interfere. (b) When a legal estate was originally conveyed by way of mort- Mortgagegage, or had become forfeited, the mortgagor, although ready and offering to pay the debt, had no relief in a Court of Law, but was compelled to resort by formal suit to a Court of Equity for an account, and to redeem, and which he could not do before the hearing in equity; (c) but now the statute (c) 7 Geo. 710. Besides a Court of Law has not (a) Faircloth v. Gurney, 9 Bing. 456. (b) Underhill v. Horwood, 10 Ves. 218; Holbrook v. Sharpe, 19 Ves. 131; 1 Mad. Ch. Pr. 227, 228; ante, vol. i. (c) 7 Geo. 2, c. 20, “An Act for the more easy Redemption and Foreclosure of Mortgages." Whereas mortgagees frequently bring actions of ejectment for the recovery of lands and estates to them mortgaged, and bring actions on bonds given by mortgagors to pay the money secured by such mortgages, and for performing the covenants therein contained, and likewise commence suits in his Majesty's Courts of Equity to foreclose their mortgagors from redeeming their estates, and the Courts of Law, where such ejectments are brought, have not power to compel such mortgagees to accept the principal monies and interests due on such mortgages and costs, or to stay such mortgagees from proceeding to judgment and execution in such actions, but such mortgagors must have recourse to a Court of Equity for that purpose, in which case likewise the Courts of Equity do not give relief until the hearing of the cause: For remedy thereof and to obviate all objections relating to the same, enacts that where any action shall be brought on any bond for payment of the money secured by such mortgage or performance of the covenants therein contained, or where any action of ejectment shall be brought in any of his Majesty's Courts of Record at Westminster, or in the Court of Great Sessions in Wales, or in any of the Superior Courts in the Counties Palatine of Chester, Lancaster, or Durham, by any mortgagee or mortgagees, his, her, or their heirs, executors, administrators, or assigns, for the recovery of the possession of any mortgaged lands, tenements, or hereditaments, and no suit shall be then depending in any of his Majesty's Courts of Equity in that part of Great Britain called England, for or touching the foreclosing or redeeming of such mortgaged lands, tenements, or hereditaments, if the person or persons having right to redeem such mortgaged lands, tenement, or hereditaments, and who shall appear and become defendant or defendants in such action, shall at any time pending such action pay unto such mortgagee or mortgagees, or in case of his, her, or their refusal, shall bring into Court where such action shall be depending all the principal monies and interest due on such mortgage, and also all such costs as have been expended in any suit or suits at law or in equity, upon such mortgage, (such money for principal, interest, and costs to be ascertained and computed by the Court where such action is or shall be depending, or by the proper officer by such Court to be appointed for that purpose,) the monies so paid to such mortgagee or mortgagees, or brought into such Court, shall be deemed and taken to be deeds. SECT. III, CHAP. V. 2, c. 20, affords mortgagors extensive summary relief at law upon bringing the principal money and interest into the Court in which the proceeding at law is depending, and upon affidavit and motion praying the Court to stay the proceedings of the mortgagee in ejectment, or even in an action of covenant or debt, on a mortgage deed or bond, (a) and by rule of Court compelling the mortgagee to reconvey and return the titledeeds; (b) and although the statute contains some exceptions, yet it is in general very liberally construed, so as to extend the summary relief at law and save the expense of a bill in equity to redeem. (c) But the third section of this act provides that it shall not extend to any case where the person against whom the redemption shall be prayed shall, by writing signed by him or his agent, insist before the mortgage-money has been brought into Court that the party praying a redemption has not a right to redeem, or that the mortgaged premises are charged with other money, or the right to redeem does not otherwise exist as stated in the act. The Court of Exchequer refused to interfere where the right to redeem was disputed upon affidavits, and it was held that this act was meant only to apply in full satisfaction and discharge of such mortgage, and the Court shall and may discharge every such mortgagor or defendant of and from the same accordingly, and shall and may by rule or rules of the same Court compel such mortgagee or mortgagees, at the costs and charges of such mortgagor or mortgagors, to assign, surrender, or reconvey such mortgaged lands, tenements, and hereditaments, and such estate and interest as such mortgagee or mortgagees have or hath therein, and deliver up all deeds, evidences, and writings, in his, her, or their custody, relating to the title of such mortgaged lands, tenements, and hereditaments unto such mortgagor or mortgagors who shall have paid or brought such monies into the Court, his, her, or their heirs, executors, or administrators, or to such other person or persons as he, she, or they shall for that purpose nominate or appoint. Sect. 2 enacts, that on bills to foreclose, the Court, on the defendant's request, may proceed to a decree before a regular hearing. Seet. 3. Provided always, that this act or anything herein contained shall not extend to any case where the person or persons against whom the redemption is or shall be prayed shall (by writing under his, her, or their hands, or the hand of his, her, or their attorney, agent, or solicitor, to be delivered before the money shall be brought into such Court at Law, to the attorney or solicitor for the other side,) insist either that the party praying a redemption has not a right to redeem or that the premises are chargeable with other or different principal sums than what appear on the face of the mortgage, or shall be admitted on the other side, nor to any case where the right of redemption to the mortgaged lands and premises in question in any cause or suit shall be controverted or questioned by or between different defendants in the same cause or suit, nor shall be any prejudice to any subsequent mortgagee or mortgagees, or subsequent incumbrancer, any thing in this act contained to the contrary thereof in anywise notwithstanding. This statute extends to mortgages where the principal is payable by instalments, Hart v. Hosier, 12 G. 1. And see Bac. Ab. Mortgage, E. 7; 1 Wils. 80; 8 T.R. 326, 410; 3 Bos. & P. 107; and other cases in Chitty's Col. Stat. 751, in notes. (a) 7 Geo. 2, c. 20; Anonymous, 2 Chitty's Rep. 264; Berthem v. Street, 8 T. R. 326, 410; Skinner v. Stacey, 1 Wils. 80. And see other cases, Tidd, 1235, 1236. (b) 7 G. 2, c. 20. And see cases Chitty's Col. Stat. tit. Mortgage. (c) Ibid. ; 7 Ves. 489; 9 Ves. 36; Goodtitle v. Bishop, 1 Young & J. 344. But see Goodtitle v. Pope, 7 T. R. 185; and see cases Chitty's Col. Stat. 732, in notes. to cases where the right to redeem is clear beyond all doubt; (d) but the Court of King's Bench, in construing this act and another statute containing a clause somewhat similar, fully investigated the grounds of opposition, saying that a mere colourable objection would not preclude the Court from affording relief, and adopted the same rule of construction of this very act in favour of a mortgagor. (e) If, however, it should appear in answer to the application that the mortgagor has legally and for adequate consideration agreed to convey his equity of redemption to the mortgagee, then the Court of Law will not in general interfere. (ƒ) CHAP. V. SECT. III. The 4 Ann. c. 16, s. 20, as to bail bonds, and the 19 Geo. 2, Bail-bonds and replevin-bonds. c. 19, s. 23, as to replevin bonds, after authorizing the assignment of each from the sheriff and the assignee to sue in his own name, nearly in the same terms enable the Court in which the action thereon has been brought (and which must always be in the Court in which the process in the original action was returnable,) whether King's Bench, Common Pleas, or Exchequer, by rule of Court, and consequently on affidavit and rule nisi, "to give such relief to the parties upon the bond as is agreeable to justice and reason, and that such rule shall have the nature and effect of a defeazance to such bond." (g) This Court (as well as Common Pleas and Exchequer) has Warrants of Attorney. an exclusive summary jurisdiction (as well of an equitable as of a legal nature (h)) over a warrant of attorney, authorizing a judgment in the particular Court, and all proceedings thereon, to entertain a motion to set the same aside if it authorize a judgment in that particular Court; and it has been usual to frame that security under seal, enabling certain attornies therein named, or any other attorney of a particular Court, to appear in that Court as attorney for the party, and to receive a declaration in an action, usually of debt, for a named sum at the suit of the creditor, and to confess such action, or suffer (d) Per Alexander, C. B.; Goodtitle v. Bishop, 1 Young & J. 344, and 1 Barnes, 121. (e) MS.; and see Rer v. Wrotesley, 1 Bar. & Adol. 648, to shew that a mere colourable claim ought not to prevent the Court from affording summary relief. (f) Goodtitle v. Pope, 7 T. R. 185. (g) See the practice as to the relief on bail-bonds, Tidd, 298 to 305, and post; and as to replevin-bonds, Chitty's Col. Stat. tit. Landlord and Tenant, 676, in notes. The words of 4 Ann. c. 16, s. 20, are, "And the Court where the action is brought may by rule or rules of the same Court give such relief to the plaintiff and defendant in the original action, and to VOL. II. the bail upon the said bond or other se (h) Martin v. Martin, S B. & Adol. CC SECT. III. CHAP. V. judgment by nil dicit or otherwise, to be entered up against the party, and also authorizing such attornies respectively to release any errors in the proceeding. Though not usual, it would be advisable to frame every warrant of attorney, to authorize a judgment or judgments in an action or actions in either of the Courts at Westminster, so as to afford the creditor the option of afterwards proceeding in which Court he might please. How or when this peculiar security for a debt, authorizing a creditor as it were, per saltum, to sign a judgment and issue execution, without even issuing a writ, (¿) was first invented does not appear, but it has now become one of the most usual collateral securities on loans of money, or contracts to pay an annuity, and for debts, but usually accompanied with some other deed or security. With respect to form, by particular rules of each of the Courts, (k) every person preparing a warrant of attorney, to be subject to a defeazance, ought to cause such defeazance to be written on the same instrument, or at least a memorandum of the substance, (k) but the defect only subjects the attorney to a motion, and does not vitiate the instrument. (1) It need not in strictness be under seal, though usually so, in order to authorize the release of errors. (m) It is further regulated by statute 3 G. 4, c. 39, for preventing frauds upon creditors by secret warrants of attorney, and requiring all such warrants, with affidavits of the time of executing the same, to be filed within twenty-one days after they have been executed, or the same are to be void against the assignees in case of bankruptcy; and by sect. 3, if the instrument is to be subject to a defeazance, the latter ought to be written on the same paper, or the instrument will be void; (n) but the decisions establish that, notwithstanding the express terms in the enactment, it is merely void as to creditors, and is not so as against the party himself. (o) The statute 6 G. 4, c. 16, s. 81 and 108, as to bankrupts, prevents any preference from being obtained by an execution founded on a warrant of attorney, unless the goods (i) Reeves v. Slater, 7 B. & C. 486; Baddeley v. Shafto, 8 Taunt. 434. As there has been no previous writ, it was therefore held that a warrant of attorney is not a suit within the meaning of 1 W. 4, c. 70; Williams v. Williams, 1 Cromp. & J. 387; and see Jones v. Clark, ibid. 447. (k) R. M. 42 G. 3, K. B.; R. M. 43 G. 3, C. P.; R. M. 43 G. 3, Exc. (1) Shaw v. Evans, 14 East, 576; Partridge v. Fraser, 7 Taunt. 307; Tidd, 546; Bennett v. Daniel, 10 B. & C. 500. (m) Kinnersley v. Mussen, 5 Taunt. 264; Brutton v. Burton, 1 Chit. R. 707. (n) Dillon v. Edwards, 2 Moore & P. 550. (0) Bennett v. Daniel, 10 B. & C. 500, but Parke, J. dissentiente; Aireton v. Davis, 9 Bing. 740. So although the rule M. 42 G. 3 requires every attorney to write the defeazance on the instrument, his omission does not invalidate the instrument; Shaw v. Evans, 14 East, 576; Partridge v. Fraser, 7 Taunt. 307; Simson v. Goode, 2 B. & Ald. 568. |