-If the ship were lost with a musket on board, would the underwriters have been liable to pay 8000l.?] We cannot argue from extreme cases. [Bramwell, B. I cannot see why, if a cargo is known to vary from ime to time in amount, the parties may not agree to ake it always at a fixed sum.] There is no law gainst such a contract. [Shee, J.-Could you claim there were no cargo on board?] No; because there then, no subject for insurance. [They cited Shand Felton (2 East, 109); Hill v. Pullen (8 East, 373); rbes and Another v. Aspinall (13 East, 328); and kman and Another v. Carstairs (5 B. & Ad. 651).] Mellish, Q. C., Lush, Q. C., and Sir G. Honyman, for defendant. The word "cargo," as used in the pomust be interpreted "all the goods intended to be board." It is most unreasonable that the underters should be liable beyond the actual loss. We not say the policy intends a full cargo, but it must end a complete cargo. The language is "on cargo ged at 80007;" what can that mean but a complete go? [They cited Arnold on Marine Insurance, 365, ed.] Cur. adv. vult. OLLOCK, C. B.-Except my Brother Bramwell, we all of opinion that the judgment of the Court of amon Pleas was right, and we agree with the reathere given for that judgment. The whole turns, nk, on the meaning of the word "cargo." Does word imply such goods as may by chance be on and at the time of the loss? or does it not rather an the entire cargo which was expected to be on nd? AMWELL, B.-The question we have to determine my opinion, one of considerable difficulty, and aps, if my judgment in this matter was unassisted, ould have come to a different conclusion. The is a valued policy on a ship and goods for a ge, and that during that voyage the cargo is cony varying, and from the nature of the trade in the ship is engaged, the cargo must vary conlly. It is almost impossible to fix what shall be at me time the value of the cargo. In order to avoid difficulty, the owner and underwriter agree that argo shall always be taken to be of a certain value. objected that such a policy is a wagering policy; what other policy on such a voyage in such a could be less wagering? It was asked by my whether the underwriters would be liable, as total loss, if the ship were lost, having on quired by the agent in the course of his employment as such or otherwise. The plaintiff delivered some timber to H., a factor, for sale on a del credere commission; C., who had once been clerk to H., bought the timber as agent for the defendants, and was acquainted, through having been clerk as aforesaid, and not otherwise, with the fact, that H. sold, as factor, for the plaintiff:-Held (reversing the judgment of the Court of Common Pleas), that the defendants were bound by C's knowledge, and, consequently, in an action for the price of timber, the defendants could not set off a debt due to them from H. Appeal from a judgment of the Court of Common Pleas. The action was for timber sold to the defendants by a factor of the plaintiff, and the defendants pleaded a set-off for a debt due to them from the factor. It was proved that the agent of the defendants was acquainted with the fact that the factor sold for the plaintiff, but acquired this knowledge by having been once clerk to the factor, and not otherwise. The case will be found reported, and the arguments, at length, ante, p. 23. Lush, Q. C., and J. Brown, for the plaintiff, contended, that the knowledge of the defendants' agent was the knowledge of the defendants, no matter when acquired. [They cited Seaman v. Fonerean (2 Str. 1183); Fitzherbert v. Mather (1 T. R. 12); Cornfoot v. Fowke (6 M. & W. 358); Paley on Principal and Agent, 259, 3rd ed.; and Sugd. V. & P. 621, 13th ed.] Bovill, Q. C., Manisty, Q. C., and C. Hutton, contra, contended that the defendants could only be affected by the knowledge of their agent acquired whilst he acted as such agent. [They cited Le Neve v. Le Neve (2 Tud. L. C. 21); Worsley v. Lord Scarborough (3 Atk. 392; and Hiern v. Mill (13 Ves. 64).] POLLOCK, C. B.-We are of opinion that the judg ment of the Court below must be reversed. In a commercial transaction, if the purchaser's agent buys goods on behalf of his principal from a factor, and such agent has notice at the time, no matter by what means, that the goods are not the goods of the factor, the knowledge of the agent must be held to be the knowledge of the principal.-Judgment reversed. COURT OF COMMON PLEAS. JJ.] , as her cargo, at the time one musket? I think [Before ERLE, C. J., WILLES, BYLES, and Keating, olicy is not to be construed by putting extreme The probability in the minds of the parties who ed into this policy was, that the ship would not on board, as her cargo, at any time one musket. ere had been no words of valuation in the policy, ald have been a contract to indemnify for what. goods might be lost. Are we then to give no to the words of valuation? It is conceded that cargo was not intended, but that a complete was meant. The ship had all she was intended ve on board. If one had been prevented by accident from taking on board her cargo, as by driven out to sea before she had completed her ment, she might then have been said not to have cargo, but she had all the cargo intended. I do intend to differ from the judgment of the rest of Court, but I entertain great doubt.-Judgment med. DRESSER v. NORWOOD and Another.-June 18. cipal and agent-Knowledge of agent-Knowledge of principal-Notice to principal. knowledge of an agent is the knowledge of the prinpal, and the principal is affected by it, whether ac ALVASEY DE LA ROSA v. PRICATO.-June 13. Medical Act, 1858 (21 & 22 Vict. c. 90), sect. 32-Charges -Medical practitioner-Agreements between each other. The Medical Act, 1858 (21 & 22 Vict. c. 90), sect. 32, provides, that "after the 1st June, 1859, no person shall be entitled to recover any charge in any court of law for any medical or surgical advice, attendance, or for the performance of any operation, or for any medicine which he shall have both prescribed and supplied, unless he shall prove upon the trial that he is registered under that act." The defendant, a foreigner, was the medical officer of a foreign ship lying in the river Thames, and he entered into a contract with the plaintiff, an English medical man, but not a registered practitioner, under the provisions of the Medical Act, 1858, for the latter to attend the crew of the ship, and to supply them with medicines. In an action by the plaintiff to recover for work and services, and medicines supplied under this contract — Held, that the plaintiff, not being registered under the above act, could not recover, and that the fact that the contract was made on board a foreign ship made no difference. That those sections of the Medical Act were part of the lex loci of this country. 27 Indebitatus counts for work and services, and me- | fence, for the case would fall both within the works dicines supplied by the plaintiff at the defendant's request. Pleas, never indebted, and payment. At the trial, it was proved that the defendant was the medical officer of the ship Arica: that the said ship was a Peruvian ship, and at the time the contract was entered into between the plaintiff and the defendant, the ship was lying in the river Thames: that whilst the said ship was so lying in the Thames, a great deal of sickness broke out among the crew, and that the defendant was obliged to leave the ship for some time, and had engaged the plaintiff during his absence to attend the crew of the ship, and to supply them with medicines: that the plaintiff did so attend upon the crew as a medical man, and gave the benefit of his skill, and supplied medicines to the crew. It was proved that the plaintiff was a foreigner, but was a domiciled subject of Great Britain, and had a diploma of the University of Montpelier, in France, and was not a registered practitioner under the Medical Act, 1858. The jury found a verdict for the plaintiff, leave being reserved to the defendant to enter a verdict in his favour if the Court should be of opinion that the plaintiff was not entitled to recover, he not being a registered practitioner under the Medical Act. Griffits obtained a rule accordingly. Beasley now shewed cause. The provisions of the Medical Act, 1858 (21 & 22 Vict. c. 90), ss. 31, 32, do not apply to contracts between medical men. The act only applies when a medical man seeks to recover for attendance and medicine supplied to a patient. Surely, a medical man who agrees to pay a salary to an assistant, and if the assistant need not be registered under the act, is liable in an action by the assistant for his salary. Besides, the foreign ship is foreign territory, and the municipal law of this country would not apply to a contract made on board a foreign ship. Griffits, in support of the rule.-Perhaps an unregistered assistant might recover his salary, but he would sue on his special contract, and not for work done and materials provided. The objection, that the Medical Act does not apply, because the contract was made on board a foreign ship, might have some weight if both the parties to the contract were foreigners, and the contract was wholly to be performed on board the ship; but the act is part of the lex loci, and it provides that a medical practitioner shall not recover for attendance and medicine unless he be a registered practitioner, under the provisions of the act. Cur, adv. vult. BYLES, J., delivered the judgment of the Court.We are of opinion that the plaintiff, being an unregistered medical practitioner, cannot recover for medical attendance afforded to the patients of the defendant, on the defendant's credit. It was contended at the trial, that the act of Parliament, 21 & 22 Vict. c. 90, ss. 31, 32, did not apply to contracts between medical men themselves, but was confined to cases in which the patients are sued for medicines or medical attendance. We agree that the act has no application in the case of an unregistered assistant suing a registered practitioner for his salary. But where the action is brought either against the patients themselves, or against any one who is to pay for medical attendance and medicines prescribed and supplied to them, we think the statute applies. Suppose medicines administered by an unregistered practitioner to a patient under a guarantee for payment given by a third person, the statute would, we conceive, be a defence either to the principal debtor or to the surety. Suppose medicines administered to the poor of a parish or union, on the credit of overseers of the parish guardians of the union, the statute would, in like manner, be a de and spirit of the enactment. The patient does not the less require protection because the paymaster is a third person. In the case now under consideration, the defendant when he went abroad, and engaged the plaintiff to act in his place, agreeing to pay for m dical attendance afforded by the defendant during be absence, was in the situation of an ordinary paymaster and not the less so because he happened to be a medical man, for the patients during his absence had no bene fits from his skill or attendance. It was further con tended, that the ship, on board of which the contra was made, being a Peruvian ship of war, lying in the Thames, the contract was not governed by the m cipal law of this country, but by the law of Per For many purposes, a foreign vessel of war, not ch on the high seas, but even in the waters or ports friendly State, is undoubtedly considered as for territory, and in some cases the local jurisdictions be excluded. (See Wheaton's Elements of Inter tional Law, 189, and 1 Kent's Com. 164, note). easy to perceive that questions of great comple and difficulty may arise; and if this contract had be made, not only on board the vessel, but betwe parties who were on both sides part of the crew: | if it had been a contract to be entirely performed board the vessel; and if the question had arisen oth wise than in the form of an action in an Eng court, requiring certain proofs to be given at the there might have been much weight in the sugges But, first, the contract was not made between P vians only, but made between a plaintiff, domiciled England, and a Peruvian, the plaintiff being by laws of this country, subject to a personal disa cation. Secondly, it was not to be performed e on board, but partly on shore; and, generally ing, a contract is to be governed by the laws country where it is to be performed; so that is possible that the Peruvian laws should entirely this contract. Thirdly, the disqualification of plaintiff to sue in England for medical attend afforded by him within the ambit of English ter arises from the necessity of proving his regis at the trial. It is part of the law of the c where the remedy is sought, and even in cases the law of another country is to interpret the cont yet the lex loci is to govern the remedy. (He Steiner, 2 Bing. N. C. 202; Donno v. Lijman, 12 Fin. 16, 17; Story's Confl. of Laws, 840, 2nd ed Rule absolute. COURT OF EXCHEQUER. [Coram MARTIN, BRAMWELL, and PIGOTT. B, WOODMAN v. JOINER.-May 5 and 6, and ¿aBailment-Commodatum-Real property—Ne";*~~ Master and servant. Plaintiff having allowed defendant to use plan for a piece of carpentering, and the shed harin on fire by the carpenter employed by defendant in his pipe-Held, that defendant was not li% action for negligence. The declaration stated, that the plaintiff was sessed of a certain shed in which were wood sh and other inflammable materials, and in consider that the plaintiff would suffer the defendant and servants, being carpenters, to use the said shed fo purpose of cutting and working divers deals, th fendant promised the plaintiff that he would us said shed in a proper and careful manner, and wor take reasonable care that no damage or injury shot happen or be caused to the plaintiff by their use thereof. The declaration went on to state that the plaintiff suffered the defendant and his servants to use the said hed for the purposes and on the terms aforesaid; and he defendant and his servants had and used the said hed for the purposes and on the terms aforesaid; yet defendant and his servants did not nor would use said shed in a proper and careful manner, and take eh reasonable care thereof as aforesaid, but so caresly, incautiously, and negligently conducted themin the said use of the said shed, that the same by their negligence, set on fire, and, together with er sheds, sawpits, and fences of the plaintiff, burnt destroyed &c. Claim of 2007. Pleas-first, non-assumpsit; secondly, traverse of the mission to use, and of the use, for the purpose and the terms aforesaid; thirdly, traverse of the negliIssue on the pleas. cause was tried at the Breconshire Spring Asbefore Williams, J. appeared that the defendant bought some timber he plaintiff, a timber merchant, and wishing to a sign-board made of it, the plaintiff said he have his (plaintiff's) shed, in which was a carer's bench, for the purpose; and that Davies, the enter, whom the defendant had employed, might the shed accordingly. Davies then worked in ed; and a friend of his coming in and lighting pipe, Davies did so too, whereby the shavings in shed were set on fire, and the injury complained as done. The learned judge left to the jury-first, her the shed was lent by the plaintiff to the deant; secondly, whether the fire was caused by the gence of the defendant. The jury answered both ons in the affirmative, and assessed the damages The learned judge reserved leave to the dent to enter a verdict, on the ground that there evidence of negligence on the part of the dent. y having obtained a rule to this effect, , Q. C., and Giffard shewed cause, contending, that the defendant was responsible, as in the case loan of a chattel, on the principles laid down v. Bernard (2 Ld. Raym. 909). [They cited Wilson v. Brett (11 M. & W. 113); Turberville v. (1 Ld. Raym. 264); Blackmore v. The Bristol Enter Railway Company (8 El. & Bl. 1035); BringMorrison (3 Salk. 271); and Story on Bailments, 42] Secondly, even if this case does not stand same footing as the loan of a chattel, there is a to use the shed properly, and the consequences of sition of the defendant are analogous. The dison between real and personal property has never aken to save a defendant from the consequence ligence. It has always been allowed that a duty es. Further: the negligent act, though not part servant's duty, arose while he was in the exeof his duty, and that is the case where the is made liable for his servant's act. and G. B. Hughes, contra.-This is a mere lienter on real property, and in such a case the is only liable where a stranger would be. Furthe negligence was in no wise connected with the the carpenter was employed to do. (Seymour v. ood, 30 L. J., Exch., 189; Kettle v. Bromall, 118; Limpus v. The London General Omnibus any, 32 L. J., Exch., 34; M'Kenzie v. M Leod, 10 385). Cur, adv. vult. ne 11.-The judgment of the Court was now deed by ARTIN, B.-The case was tried before Williams, and he left two questions to the jury. They found Davies was the servant of the defendant, and that the accident happened through the negligence of Davies. We have had much doubt in this case, but have all arrived at the conclusion that there is no liability. It was argued for the plaintiff, that this was like a gratuitous bailment of personal property, and that the defendant was liable for every accident which happened through any negligence; but we think there is no analogy between the cases. This was no bailment, but merely a license to the defendant to use the shed, which might have been revoked at any moment. Whilst it existed the plaintiff could have used the shed for his own purposes also, if he had required it, as the defendant's work occupied but a small part of it. We are not aware of any authority which shews that there is any contract between the parties, except one not to be guilty of negligence. If Davies had been guilty of any negligence relatively to his employment, it may be that the defendant would have been liable; but we cannot think that, because a servant, who is paid to work for hire, does so ordinary a thing as light his pipe (which is in no way connected with his employment), his employer is, therefore, answerable. If the verdict is right, Davies himself would be liable to an action; and it is often thought, that if a servant is liable, and unable to pay if sued, his master must, therefore, be liable. But we think that no such conclusion should be drawn; and the rule must be made absolute.-Rule absolute. MARSHALL, falsely called HAMILTON v. HAMILTON.— Where the parties had cohabited less than three years, and the medical certificates stated the virginity of the woman, and the apparent potency of the man, the Court held, that it could not, under the circumstances, presume impotency, and refused a decree. This was the woman's petition for a decree of nullity, by reason of the alleged impotence of the man. The petition, dated the 21st October, 1863, statedfirst, the fact of marriage, on the 11th December, 1860, the petitioner then being about twenty-four years of age, and the respondent twenty-six; secondly, that from the said 11th December, 1860, the petitioner lived with the said H., at &c., but that the said H. was at such time, and had ever since continued, wholly unable to consummate his said marriage, by reason of the malformation of his parts of generation, and that such malformation is incurable by art or skill; and, thirdly, that the said H. was at the time of his said marriage, and had ever since continued, wholly unable to consummate the said marriage, by reason of the frigidity and impotence of his parts of generation, and that such frigidity and impotence of his parts of generation are wholly incurable by art or skill. The respondent's answer alleged-first, a lawful marthat at the time of or since the said marriage he, the riage on the 11th December, 1860; secondly, denied respondent, by reason of the malformation of his parts of generation, had been unable to consummate the said marriage, as stated in the second paragraph of the petition; and, thirdly, denied as to frigidity or impotence. The reports of the medical examiners were as follows: "Feb. 26, 1864. "We, the undersigned, have this day carefully examined the parts and organs of generation of M., and we certify that there is no natural defect or mal- "We, the undersigned, have this day carefully examined the parts and organs of generation of H., and we certify that there is no malformation or defect of these parts, and that there is no appearance indicating a want of virile power." The case was heard before the Court itself. The evidence given by the parties is sufficiently alluded to in the judgment. Cur. adv. vult. July 12.-THE Judge OrdinaRY.-In this suit the Court is asked to pronounce the marriage of the parties null and void, on the ground of the incurable impotence of the husband. The undoubted facts are, that the marriage has not been consummated; that the lady is a virgin and without defect; that the husband has no visible defect either, on the contrary, has every outward sign of perfect health and vigour; and that the parties have cohabited two years and ten months, during by far the greater part of which they have occupied the same bed. No proof is given of the husband's impotence, but the Court is asked to infer it from the fact of the wife being still a virgin, together with her statements, that he often attempted consummation, but without effect. There was nothing in these statements to throw light upon the cause of his failure. On the other hand, the husband swore that he had desisted from enforcing his marital rights, by reason of the marked repugnance of the wife. He spoke of the pain and distress she evinced on all attempts of the kind; saying that she turned cold with dread on his approaching her, and sometimes quitted his bed. And he asserted that the non-consummation of the marriage was due only to consideration for her, and forbearance on his part. All this she denied. the result is due to other causes, and, in my opinion, there is such evidence in this case; for I give credence to the respondent's account. It is a strong fact in favour of his truth, that although the matter wa known to his wife's mother within three months the marriage, no complaint, no expostulation, heard from the lady herself, or (what might be mor natural) from either of her parents. It is also a stro circumstance, that so little were the parents incline to impute blame to the respondent, or to question th marriage, that they were parties to a propositioni the petitioner to leave this country with the respon ent as his wife, to try his fortune in Australia. T evidence of Mr. Skey, the surgeon, who spoke to th unusual suffering likely to result from the consumm tion of the marriage, shews the husband's account be not improbable. But more cogent still is the o duct of the parties just before the suit was o menced. As soon as the respondent became insolve the parents took charge of their daughter. It then that they first charged the respondent with being really their son-in-law. He was not allowed see his wife alone, and under their influence she fused to go away with her husband, although this time, and indeed within a few days of the p tion being filed, her letters and actions displayed lack of the affection which has ever subsisted bet them. There has, therefore, been no opport afforded to consummate this marriage since the ch of impotence was first made. Under these circumstances, the Court is not pared to accede to the prayer of the petitioner proposes to suspend its decree altogether for the sent. This will spare the petitioner much, if a renewed cohabitation, and all reasonable cond her part, she should be still in a position to c that the marriage has not been consummated. may be that she will desire to question this de in a court of appeal, and if so, I am prepared nounce a final decree in favour of the respondent like decree must be pronounced if she refuses turn to her husband forthwith. Attorneys-for petitioner, Stevens & Beaumont; spondent, W. W. Duffield. COURT OF PROBATE. Administration-Creditor. Letters of administration granted to the assignee ceased tradesman, limited to the book debts spect the deed of assignment. In this case Halford Joseph Dixson, a draps intestate, a widower, and without next of 19th November, 1862, having by deed assig book debts to one William Allen, with powe and recover the same in his, Halford Joseph D name. It becomes the duty of the Court to weigh these conflicting statements, and having formed a belief on the facts, to apply the rules of law. But I may premise that the Court is bound, for obvious reasons be- In the Goods of HALFORD JOSEPH DIXSON-M fore declaring a marriage void, to see its way with tolerable certainty, and proceed with a measured and jealous caution. Now what is the rule of law? Where a visible defect of an incurable nature announces the incapacity of man or woman, the Court acts upon it without regard to the length of cohabitation. (Greenstreet v. Cumyns, 2 Phillim. 10). And the like has been done where the marriage, after a cohabitation of sufficient length to overcome any temporary impediments, has clearly not been consummated, and where, by the admissions or acts of the party charged, his refusal to submit to inspection, or other independent circumstances, the Court is satisfied "beyond a doubt" (I quote from 2 Robert. 618) "of the incurable impotence alleged." Such were the two cases in 2 Robert. 618 and 625. But, subject to these exceptions, there is a well-known and valuable rule adopted of old time for the guidance of the Court, that impotence shall be presumed after three years' ineffectual cohabitation, and shall not be presumed before. The rule ought, therefore, to be applied; but if it were otherwise, and the Court were permitted to presume the respondent's impotence, although the three years' cohabitation have not elapsed, still such presumption must be open to rebuttal by positive and satisfactory evidence that An affidavit by William Allen of the amount debts; the newspapers containing the citations vertisement; an affidavit of service of citation Queen's proctor; a letter from him declining to fere on behalf of the Crown; an affidavit of for appearance; and also a copy of the deed of ment on affidavit, having been filed according directions of the Court; On the application of Ernst Browning, Sir J. P. WILDE granted letters of administr to William Allen, as a creditor of the deceased, fina to the book debts specified in the deed of assignme Attorney-H. T. Roberts. HOUSE OF LORDS Before the LORD CHANCELLOR (Lord WESTBURY), CHINNERY V. EVANS.-July 12, 13, and 28. Mortgage- Statute of Limitations — Receiver-Arrears of interest-11 & 12 Geo. 3, c. 10 (Irish act)--3 & 4 Will. 4, c. 27, 88. 28, 40, 42-7 Will. 4 & 1 Vict. c. 28. mortgage was made, in 1776, of estates A., B., and C., sithate in three different counties. In 1784 a receiver appointed by an order made on the petition of the mortgagee, under the Irish act of the 11 & 12 Geo. 3, 10, who entered into possession of estate A. only, and ut of the rents received in respect thereof paid the interest pon the mortgage. The equity of redemption in estates B. and C. were sold and conveyed by the mortgagor to purchaser, and certain outstanding charges were also assigned to a trustee for the purchaser, but the mortEugee was not a party to the deed, nor was there any reeference made to the mortgage:-Held, that the rights of the mortgagee in respect of estates B. and C. were not arred, but were preserved by the payment of interest by he receiver out of estate A. further, that the assignment of the outstanding harges to the purchaser was not the possession of a For incumbrancer, within the proviso of the 42nd secion of the 3 & 4 Will. 4, c. 27, so as to entitle the ertgagee to more than six years' arrears of interest. case of Bolding v. Lane (9 Jur., N. S., 506) disguished. his was an appeal from the Court of Appeal in ncery in Ireland, affirming certain orders of the mbered Estates Court and the Landed Estates the whole of the principal money, with very large arrears of interest, was due upon the mortgage, and praying a sale of all the estates subject thereto. The appellants, as devisees of Sir Broderick Chinnery, opposed the sale of the Cork and Kerry estates, relying upon the 3 & 4 Will. 4, c. 27; and also insisted that those estates ought not to be sold until the prior securities held by them had been redeemed by the respondents. The Court made an absolute order for sale, which was afterwards affirmed by an order of the 16th December, 1858, now appealed against, on the ground that the payments made by the receiver prevented the Statute of Limitations from running, as well in _regard to the Cork and Kerry estates, as in regard to the Limerick estates. In July, 1856, an order of reference had been made to ascertain the amount due on the mortgage, and by an order made in pursuance of such reference, dated the 13th May, 1859, the respondents were found entitled to recover the whole of the principal and interest due on the mortgage, after giving credit for the payments made by the receiver-first, by a sale of the Limerick estates; secondly, in case of a deficiency, by a sale of the Cork estate; and, thirdly, in the event of such sales proving insufficient, by a sale of the Kerry estate, but so as not to levy out of the lastnamed estate more that six years' arrears of interest prior to the supplemental petition of January, 1856. This order was affirmed, on appeal, by an order dated the 18th November, 1859. The present appeal was then bronght from these two orders of the 16th December, 1858, and the 18th November, 1859. The Attorney-General (Sir R. Palmer) and Hobhouse, Q. C., appeared for the appellants. Rolt, Q. C., Sir Hugh Cairns, Q. C., and Graydon (of the Irish bar), for the respondents. The Attorney-General, in reply. LORD CHANCELLOR.-The first question which is raised by the present appeal relates to the construction of the 40th section of stat. 3 & 4 Will. 4, c. 27, and of the true construction of stat. 7 Will. 4 & 1 Vict. c. 28. he facts were shortly these:-In the year 1776, Muskerry, by an indenture, dated the 1st Ja1776, mortgaged three estates situate in the The following statutes and authorities were referred ities of Limerick, Kerry, and Cork, to Grace to:-11 & 12 Geo. 3, c. 10; 3 & 4 Will. 4, c. 27, ss. 28, e, to secure the sum of 80007. Irish currency, 40; 3 & 4 Will. 4, c. 42, s. 5; 7 Will. 4 & 1 Vict. c. 28; interest at 57. 108. per cent. The Kerry es- 2 Tayl. Ev. 725; Roddam v. Morley (1 De G. & J. 6, 18); was sold by Lord Muskerry in the year 1783, Toft v. Stephenson (1 De G., Mac., & G. 28); Bolding v. out any reference to the mortgage, to Crosbie Lane (1 De G., J., & S. 122; S. C., 9 Jur., N. S., 506); gell, by whom it was afterwards conveyed to Doe v. Williams (5 Ad. & El. 291); Homan v. Andrews Broderick Chinnery. In 1784 an order for the (1 Ir. Ch. 106); Brocklehurst v. Jessop (7 Sim. 433); ointment of a receiver, under the Irish act 11 & 12 Yates v. Hambly (2 Atk. 360); Set. Dec. 1220, 3rd ed.; 13, c. 10, over the estates comprised in the mort-Price v. Varney (3 B. & Cr. 733); Underhill v. Devereux was obtained by the executors of Grace Freke, (2 Wms. Saund. 68); 2 Cruise, 60, 4th ed.; Hyde v. aving died, and the receiver entered into posses- Dallaway (2 Hare, 528); Toulmin v. Steere (3 Mer. 210); of the Limerick estates, but not of the Cork or and Parry v. Wright (1 Sim. & S. 369). y estates; and the Limerick estates had ever been in the possession of such receiver, by whom rents had been applied towards the payment of nterest on the mortgage. In 1790 Lord Muskerry and conveyed the Cork estate to Sir Broderick nery in fee, but without any reference to the gage, and as though not subject thereto. Before pleting the purchase of this estate, Chinnery took signment to a trustee for himself of four several ment debts and elegits affecting the Cork and by estates, which were prior in date to the mort, and he also took a conveyance from Lord Musy's mother, of certain jointures charged on the lands, with large arrears thereon due to her, and a term of 500 years for securing the same, such itures also being prior to the mortgage. In 1853 respondents, as representatives of Grace Freke, ented a petition in the Incumbered Estates Court, ging that 50007. was due for principal on the mortge, and praying a sale of all the lands comprised erein. In 1856, they presented a supplemental petion, alleging, amongst other things, that, in fact, No. 504, VOL. X., NEW SERIES. :—A The facts that give rise to the present question may be expressed, in substance, in the following way :mortgage was made in the year 1776 of estates in Ireland of three denominations, the estates being situated in three several counties-the county of Cork, the county of Limerick, and the county of Kerry. After that mortgage had been made, the mortgagee presented a petition, under the Irish act of the 11 & 12 Geo. 3, c. 10, for the appointment of a receiver of the rents of the mortgaged premises; and accordingly, a receiver was appointed, by virtue of the provisions of that statute. That receiver entered into possession, and into the receipt of the rents of the Limerick estates alone; and from the rents so received by him the interest was kept down and paid upon the mortgage. The equity of redemption of the estates situated in the counties of Cork and Kerry has been ii |