PERROTT บ.

WILLIS.

T. T. 1859. by the act of the plaintiff, of which we see no evidence whatsoever, Common Pleas. the mere lying by and not enforcing his demand not being such an act. The proper inquiry in the present case should be, whether the plaintiff, by his act, has discharged one of two principals: so that his remedy should be confined to the other of the two. A case of this kind is reported in 5th Espinasse, p. 22, Reid v. White and others. It was an action for carriage, brought against the defendants as owners of the ship "Princess Mary;" and it appeared that the plaintiff dealt with White alone, and took his bill for the · amount, which was dishonored; and the other defendants insisted that they were discharged from liability, having, in ignorance of the mode of dealing between the plaintiff and White, suffered the latter to receive large sums of money for freight, which they would otherwise have obtained; and Lord Ellenborough says "If the "plaintiff, by dealing with White separately, has adopted him, he "has discharged the others. If he has adjusted accounts with him on that footing, the other defendants are entitled to the benefit of "it. The question is, whether it was intended as a settlement with "him alone, and adopting him as a single debtor ;" and the Reporter adds:"A very respectable full special jury of merchants found for the defendants." No such question was raised in the present case at the trial; it was presented to the jury in quite a different aspect but if such a question had been raised, was there any evidence in support of such a view of the case? We are of opinion that the doctrine laid down in Thompson v. Davenport applies to the present case, in this way :-It is there laid down that a dealing with an agent will not discharge the principal, except the other party knew at the time who the principal was. We do not think that it is carrying this doctrine to too great a length, to hold that it is applicable to the case of joint owners.

:

No evidence was given in the present case to show that the plaintiff was aware, at the time of giving credit, that the Messrs. Willis were liable, as joint owners. There was some slight evidence to prove that, at the time of signing the composition deed, there were some vague rumours afloat, to the effect that some other parties had an interest in the vessel; but there was no evidence

PERROTT

v.

to authorise a jury to say that, if the plaintiff had been aware that T. T. 1859. Common Pleas. the Messrs. Willis had been jointly responsible for this sum of £70, or £80, that he would have looked to the Messrs. Scott, and thereby abandoned his claim against the solvent part owners, the Messrs. Willis. Before there can be an abandonment in this sense, there must be a knowledge of what is to be abandoned.

We must therefore allow the cause shown against the conditional order, and the verdict of the plaintiff will stand.

Judgment for plaintiff.

WILLIS.

STAMERS v. PRESTON.

THIS was an action of ejectment on the title, and was tried before Mr. Baron Greene, at the Cork Summer Assizes of 1858. The plaintiff, in the year 1856, had made a lease to the defendant of the premises in dispute, for a term of 500 years, under which the latter had entered into possession, and commenced to erect certain buildings, for the completion of which he applied for a loan to the Cork Building Society; and, accordingly, an indenture of mortgage was executed, on the 10th of September 1857, whereby the defendant, in consideration of the sum of £100, advanced to him by the Cork Building Society, at £5 per cent. per annum, mortgaged to the Society the premises demised to him by the plaintiff, for his entire

June 7.

S. having

made a lease

of certain lands to P., for a term of years, the latter, for the purpose of obtaining a loan, mortga ged the lands to a Building Society (under the provisions of the Building Society Acts), and having subsequently applied to S. for a further loan (for the purpose of

paying off the money advanced by the Society), and S. having agreed to lend, upon the security of the mortgaged premises; a memorandum of agreement was indorsed upon the deed of mortgage, whereby P. purported to transfer to S. the mortgaged premises, in consideration of a loan of £100, S. thereby agreeing to accept the mortgage.

This memorandum was signed by the parties, but was not under seal.

The trustees of the Building Society subsequently indorsed upon the mortgage deed a receipt for the money secured thereby.

Held, that the receipt of the trustees, so indorsed, was effectual (under the provisions of the 6 & 7 W. 4, c. 32, s. 5) to pass the legal estate to S., although the memorandum of agreement was not under seal.

Held, also, that the Registrar of the Society is the proper depositary of the rules of the Society, under 9 & 10 Vic., c. 27.

Common Pleas.

STAMERS

V.

T. T. 1859. term, subject to redemption. The defendant subsequently applied to the plaintiff for a loan of £100, to pay off the money advanced by the Society (of which the defendant, upon obtaining the loan, had become a member), which the plaintiff having agreed to do, the following memorandum of agreement was indorsed upon the deed of mortgage :

PRESTON.

"Memorandum.-I, the within named John Preston, one of the "members of the Cork South of Ireland Permanent Benefit Build"ing Society, in consideration of the sum of £100 paid to me by "William Stamers, Esq., do hereby assign and transfer all the "premises included in the within mortgage, to the said William "Stamers, his heirs, executors, administrators and assigns, subject "to the payment at £7 per cent. per annum, payable half-yearly, on every 25th day of June and 25th day of November; and I, "William Stamers (with the sanction of the Board of Directors), "do hereby agree to accept this mortgage, subject to the payment of "£7 per cent., payable half-yearly, as aforesaid; said sum of £100 "to be paid within ten years, and, when half paid, the interest "to be lowered to £4 per cent. per annum.-Dated this 1st day of "December 1857.

66

"JOHN PRESTON,
"WILLIAM STAMERS."

Upon the 4th of December 1857, the trustees of the Society signed the following receipt upon the mortgage :—

"We, the undersigned, do hereby acknowledge that all sums "intended to be secured of the within deed have been duly paid and "satisfied. December 4th 1857."

(Signed by the trustees).

The plaintiff also proved a demand of possession.

At the close of the plaintiff's case, which consisted of the foregoing facts and documents, the defendant's Counsel called upon the learned Judge to nonsuit the plaintiff, or direct a verdict for the defendant, upon the ground that the plaintiff showed no title, inasmuch as the 6 & 7 W. 4, c. 32, s. 15, upon which alone the plaintiff could rely, did not operate to transfer to him the legal estate, as he was not the person entitled to the equity of redemption

when the trustees signed the receipt, and that the only right he showed to the equity of redemption was under the memorandum indorsed upon the mortgage deed, signed by Preston; and that this memorandum not being under seal, the statute of 8 & 9 Vic., c. 106, s. 3, prevented the plaintiff from acquiring any estate at Law in the term; also that no proof of the enrolment of the rules with the Clerk of the Peace had been given, as required by statute; and, therefore, that the receipt of the trustees was not such as was contemplated by the statute 6 & 7 W. 4, c. 32, s. 55; which the learned Judge refused to do, but reserved leave for the defendant to move the Court above to have a nonsuit, or verdict for the defendant, entered.

A conditional order having been obtained

Chatterton showed cause.

The 6 & 7 W. 4, c. 32, s. 5, gives to the receipt indorsed upon the deed of mortgage the effect of a conveyance, for the purpose of vesting the property in the person, for the time being, entitled to the equity of redemption; whereas the defendant contends that, under the provisions of the 8 & 9 Vic., c. 106, s. 3, it was necessary that there should be an instrument under seal; but the latter statute merely contemplated the transfer of legal estates, and did not affect equitable interests. An equity of redemption being of the latter kind, and, at Common Law, capable of passing by an agreement not under seal, a conveyance of it, even though invalid at Common Law, will be upheld in a Court of Equity: 9 Bythewood Conv., p. 219 (1844); Hayes Conv., p. 96 ; Taylor v. Wheeler (a) ; Mestaer v. Gillespie (b); Parker v. Taswell (c). But it is not necessary to press the latter proposition in the present case.

He also cited (as to the proper depositary of the rules of the Society) 10 G. 4, c. 56; 4 & 5 W. 4, c. 404; 6 & 7 W. 4, c. 34, s. 4, amended by 9 & 10 Vic., c. 27, ss. 8, 12; Walker v. Giles (d); Barnard v. Pilsworth (e).

T. T. 1859.
Common Pleas.

STAMERS

v. PRESTON.

June 7.

Sullivan and O'Reardon, contra.

The receipt indorsed cannot have the effect of a conveyance of the equity of redemption upon the original mortgage, inasmuch as the memorandum provides for a different arrangement altogether, viz., the payment of £7 per cent. interest, instead of £5 per cent., as reserved in the original deed; therefore, the plaintiff cannot be regarded as claiming the mortgage which was originally made to the Society. Besides, the statute 6 & 7 W. 4, c. 32, s. 5, only provides that the receipt is to vest the property in the person entitled to the equity of redemption, viz., Preston or his assignee; the intention of the Act being to provide a cheap mode of re-conveyance to the mortgagor, upon payment of the debt, and not to enable third parties to deal with the mortgage. The plaintiff is not a person "entitled for the time being to the equity of redemption," he is merely entitled to redeem, in the same manner as a judgment creditor.

An equity of redemption may, in a Court of Equity, pass under an instrument not under seal; but, in a Court of Law, a deed is necessary, under 8 & 9 Vic., c. 106.

They also cited Wagstaff v. Wagstaff (a); Coote on Mortgage, p. 22; Green v. Smith (b).

Jellett was heard in reply.

MONAHAN, C. J., delivered the judgment of the Court.

This case appeared, at first, to present some difficulty, but the complication arose from the number of Acts of Parliament referred to in the argument. We are of opinion that, under the late Act of The Queen, it is only necessary that the rules of the Society should be lodged with the Registrar of the Society, and therefore that the objection that the rules were not enrolled, which was raised at the trial, falls to the ground. We are therefore of opinion that the trustees have the power, by means of a proper receipt, to vest the estate in the proper person, without executing a formal deed of re-conveyance.

(a) P. Wms. 258.

(b) 1 Coll. 525.