72 1838. ROE v. WARDLE. plaintiff's costs, and that the defendant Elizabeth Wardle might be at liberty to pay the plaintiff the amount to be so found due to him for principal, interest, and costs within the usual period; and that thereupon all further proceedings in this suit might be stayed, the defendant undertaking to pay the plaintiff, &c., and the plaintiff undertaking to convey the mortgaged premises and debt, including the costs, to the defendant. Mr. Rogers, for the motion. This defendant, who stands in much need of her annuity, and who has not yet received any portion of it, seeks by this motion to put an end to the unnecessary delay which will take place if the cause goes on to a hearing. It is conceded that Dawson, the second mortgagee, has a right, prior to this annuitant, to redeem the plaintiff's mortgage, and what she asks is, that, if Dawson does not redeem, she may redeem. The plaintiff will get the same benefit as he would do if the cause went on to a hearing, and none of the parties can be damnified. It is submitted that the legislature has provided for a case of this nature by the stat. 7 Geo. 2, c. 20, s. 2; but supposing this case not to be within the strict. provisions of that statute, the observations of Sir John Leach, in Praed v. Hull (a), are clearly applicable to it. His honour says-" I consider that courts of equity have inherent jurisdiction to stay the proceedings in any cause, and in any stage of the cause, whenever the defendant will at once submit to a decree establishing the full demand made by the bill, and the whole relief prayed in respect of that demand, with costs." What this defendant now asks for is the order which would be made at the hearing. Mr. Simpkinson and Mr. Kenyon Parker, for the plaintiff.-We should not oppose this motion if justice could (a) 1 S. & S. 331. be done upon it; but one of the defendants is an infant who cannot comply with the order, and who likewise insists on the necessity of making the representative of a deceased child of the testator a party to the suit. There is no admission on the answers upon which, if the cause came to a hearing, the Court could make a decree. The case, therefore, is not within the act. To meet the words. of the statute, the application must be made by the "defendant or defendants," and therefore must be made by all the defendants if there are more than one. Here the other defendants do not admit the plaintiff's title; and it is clear that the act only applies to cases where the mortgage is admitted, and there is no dispute as to what is due; Huson v. Hewson (a), Garth v. Thomas (b). Mr. Sutton Sharpe, for a party representing one of the fifth shares.-The defendant has not a right to redeem prior to the trustees. The estate is devised to the trustees upon trust to sell, subject to the annuity. The annuitant, therefore, has only a charge upon the estate, and has no right to redeem till persons who have the estate subject to that charge, have refused to do so. The Court is called upon to decide between co-defendants, without hearing the answer or evidence. The case Garth v. Thomas is conclusive upon this point, and is a much stronger case than the present. Mr. W. Hetherington, for the infant defendant, and for one of the trustees, did not oppose the motion. Mr. Hind and Mr. Blair, for other parties. Mr. Rogers, in reply, observed that it was a mistake to say that the annuity was a mere charge upon the estate of (a) 4 Ves. 105. (b) 2 S. & S. 188. 1838. ROE v. WARDLE. 1838. ROE ย. WARDLE. the trustees, for that by the terms of the will the annuitant had a legal estate. The LORD CHIEF BARON.-I wish I could accomplish the object of the statute by shortening the duration, and thereby diminishing the expense of this suit; but I am at a loss to see my way to that object under present circumstances. If the parties had admitted the plaintiff's title there would have been no difficulty. But how can I make a decree admitting the plaintiff's title (for that must be the effect of the decree now asked for) against those who do not admit it? Motion refused. April 27th. By the statute 1 Geo. 4, c. 35, the jurisdiction of the Queen's Remembrancer, orders), is entirely transferred to the ROGERS V. MAULE. THE bill was filed by the plaintiff on behalf of himself and all other the creditors of J. M. H. Brown, who was illegitimate, and who died intestate and unmarried, praying an account and satisfaction of their debts out of the real and personal estate of the intestate. The defendants were Mr. Maule, who, as nominee of the Crown, had taken out letters of administration of the personalty, and the Attorney-General, who, as the representative of the Masters on the Crown, claimed the realty by way of escheat, subject to a mortgage existing thereon. Upon the hearing of the cause the Lord Chief Baron made a decree, referring it to the Master to take an account of the real and personal estate of the intestate; and the decree being drawn up was taken to the Queen's Remembrancer for the purpose of being entered, but he refused to enter it in the form in which it was drawn up, on the ground that the reference ought to have been made to him and not to the Master. equity side of the Court: therefore, upon a bill filed by creditors for the administration of the assets of their deceased debtor against the Crown, as the only repre sentative of the debtor (he having died intestate, and without heirs): -Held, that, under the decree for an account, the reference should be to the Master, and not to the Queen's Remembrancer. Questions of equity, though arising out of matters of revenue, are properly determinable on the equity side of this Court. Mr. Simpkinson now moved that the Queen's Remembrancer might be ordered to enter the decree as drawn up. -This is a decree in equity and not in a revenue cause; otherwise your Lordship personally would have had no power to make it; the statute 57 Geo. 3, c. 18, giving power to the Chief Baron, sitting alone, to make decrees in equity only. The law as to revenue cases is unaffected by that act. Then the subsequent act of the 1 Geo. 4, c. 35, makes a clear distinction between the equity and revenue side of the Court. Under the 17th section (a), it is (a) The stat. 1 Geo. 4, c. 35, s. 17, after reciting the stat. 57 Geo. 3, c. 18, (by which the Lord Chief Baron, or in case of his sickness or other unavoidable absence, any Baron nominated and appointed by the Crown, is empowered to set alone in equity,) and reciting, that by the course and practice of the Court for many years, the deputy Remembrancer had taken the minutes of all decrees and orders of the said Court, as well in matters of revenue as on the equity side of the Court, and had also been employed in reporting to the Court his opinion upon the several matters referred to him; and that in consequence of the division of the business of the said Court, it had become expedient that there should be two joint officers to perform the said duties on the equity side of the said Court, in all suits and matters between subject and subject-enacts that the Lord Chief Baron for the time being, shall "nominate and appoint, by writing under his hand and seal, to be enrolled among the records of the said Court, two fit and proper per sons, being barristers at law of not less than five years standing, to be and be called Masters of the said Court of Exchequer; and that one of such Masters shall be the Accountant-General of such Court, as herein before mentioned; and that such two Masters shall hold such offices during their good behaviour therein, and not be in anywise subject to the orders or control of the King's Remembrancer of such Court or his deputy; and that each of the Masters of such Court shall act jointly or severally, as such Court or Lord Chief Baron, or other Baron to be nominated and appointed as aforesaid, from time to time shall direct, in all matters of reference from the Court or Lord Chief Baron, or other Baron, &c., and proceedings relating thereto, in all suits and matters on the equity side of such Court between subject and subject; and it shall be the duty and office of such Masters to attend such Court and the Lord Chief Baron, or other Baron, &c., in their own proper persons, and not by deputy, and to take the minutes of all orders and de 1838. ROGERS V. MAULE. 1838. ROGERS บ. MAULE. obvious that the proper reference in a case of this nature is to the Master and not to the Queen's Remembrancer. The circumstance of the Crown being partially interested can make no difference. The case of Attorney-General v. Sitwell (a), was stronger than this. That was a bill to enforce the specific performance of a contract entered into by the defendant with the Commissioners of Woods and Forests. A decree was pronounced for the plaintiff, and a reference was directed as to the title; and on that occasion the Queen's Remembrancer put in a claim to have the benefit of that reference. Mr. Baron Alderson crees which shall be made by such Court or the Lord Chief Baron thereof, or by the Baron to be nominated and appointed as aforesaid, as well in matters of revenue as on the equity side of such Court, which orders or decrees shall be afterwards drawn and engrossed by the clerks in court in each respective cause or suit, and shall and may be corrected, either in form or substance, by such Masters respectively, at the instance of any of the parties affected by any such order or decree, according to the minutes taken by such Masters respectively, pursuant to the directions of such Court, or of such Lord Chief Baron, or the Baron to be nominated and appointed as aforesaid, and shall be afterwards entered by the King's Remembrancer amongst the records of such Court, pursuant to the ancient course thereof; and it shall also be the office and duty of such Masters respectively to receive all such references on matters of account, and on all other matters and things on the equity side of such Court, as shall be made and referred to them by the Court of Exchequer, or by the Lord Chief Baron, or by the Baron to be nominated and appointed as aforesaid, and to report thereon to such Court, or the Lord Chief Baron, or to the Baron to be nominated and appointed as aforesaid, in such manner as heretofore was used and accustomed to be done by the person holding the office of deputy remembrancer, or as shall be directed or or dered by such Court, or by the Lord Chief Baron, or by the Baron to be nominated and appointed as aforesaid, and from time to time, and in all things to do, execute, and perform all such duties as Masters of the equity side of such Court as they shall be required to do by any order or orders to be for that purpose from time to time made by such Court, or by the Lord Chief Baron, or by the Baron to be nominated and appointed a aforesaid." as (a) Not reported on this point. See ante, Vol. 1, p. 559. |