required or filed, and the plaintiff had filed replication, a co-defendant before a decree. It had been held but the defendants might have taken the objection by their affidavits, and as they had not done so they were not entitled to the costs of the day. Stuart, V.-C. 18 JULY, 1863. { SCOTT RUSSELL 2. THE Practice-Motion by Co-defendant. A motion by a defendant, before decree, to restrain a co-defendant from prosecuting an action at law on the ground that the object of the suit was identical with that of the action, refused. This was a motion by the defendants, the London, Chatham, and Dover Railway Company, to restrain two of their co-defendants, who were trustees under a settlement, from prosecuting an action at law commenced by them. The facts were, shortly, these :The plaintiff had, by deed, settled a certain house and grounds upon himself, his wife, and children. The railway of the defendants (the company) passed through a tunnel under this property. Previous to the line being constructed, an arrangement was entered into between the plaintiff and the company for compensation for the damage to be done. When the tunnel was constructed, a greater damage was caused by the subsidence of the surface than had been expected, and the sum arranged to be paid was, as the plaintiff alleged, altogether inadequate as compensation, and the bill was filed for the purpose of obtaining proper compensation, whilst the defendants, the trustees under the settlement, brought an action against the company for damage done to their property. No decree had as yet been obtained in the suit. The railway company now moved to restrain the trustees from proceeding with their action, on the ground that the object of the suit was identical with that of the action, and that full justice would be done in the suit to all parties. Malins, Q. C., Cotton, and M. White (of the Common Law Bar), appeared for the railway company. that a plaintiff could not so move unless the injunction had been specifically prayed for, Wright v. Atkins, loc. cit. His Honour also referred to Mitford, p. 55, 5th ed., citing Savory v. Dyer, Ambl. 70. Principal and Surety-Negligence of Guaranteed Creditor. A surety, deprived, through the negligence of the guaranteed creditor, of the full benefit of a collateral security, is pro tanto discharged. A lends B 10001. Repayment is secured (1) by an assignment of B's equitable interest in settled property; (2) by a bond in which C, expressly as a surety, is joined with B. A transfers the mortgage and bond to D. Neither A nor D give notice of the mortgage to the trustees of the settlement, and part of the property is in consequence taken out of the mortgage: Held, that C is entitled to set off the value of the property abstracted against the amount due under his bond. By a settlement made upon the marriage of James and Sarah Strange a moiety of the Ridouts estate was conveyed to William Caines and Isaac Clifford in fee, upon trust during the joint lives of James and Sarah, to pay the rents and profits to the separate use of the latter, and, on the decease of either, upon trust for the survivor for life. By an indenture of the 19th of January, 1852, made between James Strange and Sarah, his wife, of the one part, and the defendant Fooks of the other part, the interests of James and Sarah Strange in the Ridouts estate, and two policies of assurance for 500l. effected by James, one upon his own life, and the other on the life of his wife, were granted and assigned to the defendant Fooks, upon trust in case the 1000l. and interest, at 5 per cent., were not repaid on the 19th of July then next (an event which happened), to sell and pay himself out of the nett proceeds. The payment of this 10007. on the same 19th of July was also secured by a bond, in which Simon Bacon, Q.C., and Martindale, appeared for the Strange was joined expressly as a surety with his trustees and infants. The following cases were referred to on the question, whether a defendant could move for an injunction against a co-defendant before any decree had been obtained : Wedderburn v. Wedderburn, 4 Myl. & Cr. 585; Booth v. Leycester, 1 Keen, 579. STUART, V.-C., thought that the motion must be refused, as it was contrary to the practice of the Court to allow a defendant to move for an injunction against brother James. this sum of 10007., together with the benefit of the By an indenture, dated the 19th of October, 1855, indenture and bond of the 19th of January, 1852, was transferred to the defendant Hole. Neither Fooks nor Hole gave the trustees of the settlement notice of the incumbrance on James' and Sarah's interests, and the moiety of the Ridouts estate was, after the assignment to Hole, disposed of under a power of sale contained in the settlement, and thus abstracted from the operation of the indenture of the 19th of January, 1852. In August, 1855, Simon Strange died intestate, leaving the plaintiff his widow, who took out letters of administration of his estate. In November, 1861, the defendant Hole required payment by the plaintiff of the money due from Simon's estate under the bond, and commenced an action to recover it. Thereupon the plaintiff filed her original bill, praying an injunction against the further prosecution of the action. An injunction had been granted on motion upon 'the terms of the plaintiff giving judgment in the action, such judgment to be dealt with as the Court should at the hearing direct. The cause now came on to be heard. The plaintiff contended, that Fooks and Hole, by omitting to give notice of their incumbrance to the trustees of the settlement, had suffered the security, created by the indenture of January, 1852, to be impaired, and had thus discharged the surety. The defendants, Hole and Fooks, denied their obligation to give any such notice. Malins, Q.C., and Cracknall, for the plaintiff. It is the duty of the creditor to perfect his security as against the principal debtor. If he fail to do so, the surety, thereby damnified, is discharged, Watson v. Alcock, 1 Sm. & Gif. 319; 4 De G. M. & G. 242; Straton v. Rastall, 2 T. R. 366; Watts v. Shuttleworth, 5 H. & N. 235; 7 H. & N. 353; Capel v. Butler, 2 Sim. & S. 457; Pearl v. Deacon, 24 Beav. 186. Greene, Q.C., and Locock Webb, for the defendants, Fooks, and Hole. 1st. Each of the indentures of the 19th of January, 1852, and the 19th of October, 1855, effected a complete assignment of the equitable interests of James and Sarah Strange, Voyle v. Hughes, 2 Sm. & Gif. 18. 2nd. The assignments being complete in themselves, no notice was necessary to perfect them, and the rights of the creditor cannot be affected by his omission to give such notice, Wheatley v. Bastow, 7 De G. M. & G. 261 : See likewise, Eyre v. Everett, 2 Russ. 381; Gordon v. Calvert, 4 Russ. 581. 3rd. At all events Simon's estate is discharged only to the extent of the loss sustained by the abstraction of the moiety of the Ridouts estate, Capel v. Butler, loc. cit. Charles Hall, for James and Sarah Strange. STUART, V.-C., without calling for a reply, said that the decision of this case rested on a clear principle. Where, through the creditor's neglect, a security was lost or not perfected, to the detriment of the surety, the surety was thereby wholly, or partially, released from liability. There were in the present case two transactions to consider. The first was that by which Simon became surety for James to the mortgagee of James' and Sarah's interests. That mortgage was a security, to the benefit of which Simon, by paying the debt, would become entitled, and he had therefore a right to have it so dealt with by Fooks as that the benefit should not be lost. By omitting to give notice to the trustees, Fooks had caused a partial loss of the property comprised in it, and on this ground alone Simon would have been pro tanto exonerated. The matter did not rest here. In 1855 the mortgage and bond were assigned to the defendant Hole. On taking the transfer, he was bound to see that everything was done to perfect the security and keep alive He omitted to do what the rights of his assignor. every prudent assignee would have done; he made no inquiries whether notice had been given to the trustees, he did nothing. Had he acted differently, the sale of the moiety of the Ridouts estate might have been prevented. For this reason also the surety was released from Hole's claim to the extent of the loss to which Hole's negligence had contributed. Against this view Wheatley v. Bastow (loc. cit.) was adduced. But in that case there was no bond, and it was under the peculiar circumstances therein appearing that the surety was held liable. The case, therefore, was no authority against the general principle. Minute.-Continue the injunction. Declare that Simon's estate was entitled to the benefit of the mortgage security, and it appearing that the same has been lost by the default of the defendants Fooks and Hole, let an inquiry be made as to the value of the security. Adjourn further consideration to Chambers. Fooks and Hole to pay costs of suit. NEVE v. PENNELL. HUNT v. NEVE. Wood, V.-C. 15, 17 JULY, 1863. Equitable Mortgage-Priority-Registration— 7 Anne, c. 20-Right to Consolidate Mortgages. An instrument, not under seal, charging lands in Middlesex, ought to be registered under the 7 Anae, c. 20. Moore v. Culverhouse, 27 Beav. 640, followed. Where two instruments were registered in Middlesez on the same day, and the endorsements stated that they were registered at the same hour, but one was numbered on the registry 764, and the other 768, the former, in the absence of any evidence as to the time when the instruments were handed to the registrar, was held to be prior to the latter, though the charge thereby created was subsequent in point of time. A mortgagee, holding various securities from the same debtor, has a right to consolidate his mortgage against a puisne incumbrancer, though he has not the legal estate in the mortgaged property, and his right is not affected by the circumstance that the puisne incumbrancer was originally prior to him, but lost his priority by delay in registration. Neve, the plaintiff in the first of these suits, was the holder of five different mortgages from David Hughes, formerly a solicitor in London, on various properties in which Hughes was interested, and also of certain other securities on the "Dalston Estate," the nature of which was as follows: By an agreement under seal, dated the 10th of October, 1846, and made between Sir W. Middleton of the one part, and Henry Palmer of the other part, Sir W. Middleton covenanted to grant to Palmer, or such persons as he should appoint, leases of certain pieces of land at Dalston therein particularly described, together with the messuages or tenements to be built thereon, for 99 years from the 25th of December, 1856, at the yearly rents therein mentioned, which were to increase gradually to 3377. 10s. a year, payable for the eleventh and every succeeding year of the term. It was provided, that the rent of 3377. 10s. should be apportioned on each lease as therein mentioned, but so that the rent to be reserved on each messuage should in no case exceed one-fifth of the improved value; and it was also provided that, if the yearly rent to be reserved upon the leases of any parts of the land should amount to 3377. 10s., then the remainder of the land, if any, should from time to time, as it should be built upon, be leased to Palmer or his appointees, at a peppercorn rent only. The agreement contained covenants by Palmer to pay the rents, and to erect a certain number of houses on the land within the first twelve years of the agreement. On breach of any of the covenants, Sir W. Middleton was empowered to re-enter. Other articles of agreement of a like nature, in reference to other pieces of land near Dalston, were entered into between the same parties on the 15th of March, 1847, and the 13th of April, 1847, the ultimate rents thereby reserved to Sir W. Middleton being 501. and 3007. respectively. Previously to the year 1852 the whole benefit of these agreements had become vested in David Hughes. Leases of houses erected on the lands agreed to be demised were from time to time granted to nominees of Hughes by Sir W. Middleton, and by these leases rents amounting to 6877. 10s. (being the amount of the gross ground rents reserved to Sir W. Middleton as above mentioned) were reserved to him, so that in March, 1857, Hughes and his nominees were in a position to demand that only peppercorn rents should be reserved to Sir W. Middleton by any future leases which Hughes or his nominees might obtain. On the 27th of June, 1857, an agreement, not under seal, was entered into between Hughes and Neve, which recited that Hughes was indebted to Neve on a certain bill of exchange, of even date, in the sum of 40007.; and it was thereby agreed that Neve should retain the several deeds mentioned in the schedule thereunder written, and the lands, &c., respectively comprised therein, as collateral security for the due payment of the sum of 40007., and further, that the lands, &c., comprised in the deeds should be charged, and the same were thereby made chargeable, with the payment of the bill of exchange and the sum of 40007. thereby secured. There was also therein contained an agreement by Hughes to execute proper assurances of the land, &c., comprised in the deeds, by way of security for the repayment of 40007. and interest. The third schedule to this agreement contained the title deeds relating to the Dalston estate, which had been deposited with Neve on the occasion of a previous loan, in March, 1857. On the 6th of April, 1858, Hughes executed a formal mortgage of the lands comprised in the abovementioned agreements of the 10th of October, 1846, the 15th of March, 1847, and the 13th of April, 1847, to secure to Neve repayment of 10,0007. and interest. The debt of March, 1857, was included in this sum of 10,000l.; but the sum of 40007. secured by the bill of exchange and the agreement of the 27th of June, 1857, was not included therein. The last-mentioned deed was duly registered in Middlesex, on the 24th of April, 1858. On the 20th of July, 1858, Hughes absconded to Australia; and in the following month was declared a bankrupt. On the 4th of November, 1856, Hughes had executed an assignment of the Dalston building agreements and the benefit thereof to Hunt, the plaintiff in the second suit, by way of mortgage, to secure the repayment of 4,450l. and interest. Immediately after the execution of this deed, he deposited with Hunt, who was a client of his, a bundle of deeds, which he stated to be the deeds relating to the Dalston estate; but, after Hughes absconded, it was discovered that these deeds did not in any way relate to the Dalston property, and that the real deeds had been retained by Hughes. Memorials of the agreement of the 27th of June, 1857, and of Hunt's mortgage, were registered on the Middlesex Registry, on the 29th of July, 1858. By the memorandum indorsed on the agreement, it appeared that the memorial was registered at eleven in the forenoon, the corresponding number on the registry being 764; and, in like manner, it appeared that the memorial of Hunt's mortgage was also registered at eleven o'clock, the corresponding number being 768. The practice at the Middlesex Registry Office is to indorse all deeds registered between, say, eleven and twelve o'clock, as being registered at eleven. There was no decisive evidence whether the agreement or the mortgage was first taken to the office. Neve v. Pennell was a suit for the foreclosure of the shall duly file every such memorial in order of time various mortgages held by Neve. as the same shall be brought to the said office, and enter or register the said memorials in the same order that they shall respectively come to his hands." Hunt v. Neve was a cross suit, instituted to establish the priority of Hunt's mortgage on the Dalston estate to Neve's interest therein; or, at all events, to the charge created by the agreement of the 27th of June, 1857. The suits having come on for hearing together, the following questions were discussed : Section 7. "That where there are more writings than one for making and perfecting any conveyance or security which do name, mention, or any ways affect or concern the same honours, manors, lands, 1st. The respective priorities of Neve's and Hunt's tenements, or hereditaments, it shall be a sufficient charges on the Dalston estate. 2nd. The right claimed by Neve to consolidate, as against Hunt, all his mortgages on Hughes' property. The first question mainly depended on the construction of the Middlesex Registry Act, the material enactments of which are the following: memorial and register thereof if all the said honours, manors, lands, tenements, and hereditaments, and the parishes, townships, hamlets, or extra-parochial places where the same lie, be only once named or mentioned in the memorial or register of any one of the deeds or writings made for the perfecting of such conveyance or security and that the dates of the rest of the said deeds or writings relating to the said conveyance or security, with the names and additions of the parties and witnesses and the places of their abodes, be only set down in the memorials and registers of the same, with a reference to the deed or writing whereof the memorial is so registered, that contains or expresses the parcels mentioned in all the said deeds and direc tions how to find the registering the same." Sir H. Cairns, Q.C., Giffard, Q.C., and Wickens, for Neve. Section 1. "That a memorial of all deeds and conveyances which, from and after the 29th day of September, in the year of our Lord 1709, shall be made and executed, and of all wills and devises in writing made or to be made and published where the devisor or testatrix shall die after the said 29th day of September, of or concerning and whereby any honours, manors, lands, tenements, or hereditaments in the said county may be any way affected in Law or Equity, may be registered in such manner as is hereinafter directed; and that every such deed or conveyance that shall at any time after the said 29th day of September be made and executed, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such memorial thereof be registered as by this Act is directed, before the registering of the memorial of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim; and that every such devise by had notice; and after the cross-examination the point will shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless a memorial of such will be registered at such times and in such manner as is hereinafter directed." Section 6. . . . "That every such deed, conveyance, and will or probate of the same of which such memorial is so to be registered as aforesaid, shall be produced to the said registers or masters at the time of entering such memorial, who shall indorse a certificate on every such deed, conveyance and will, or probate thereof, and therein mention the certain day, hour, and time on which such memorial is so entered or registered, expressing also in what book, page, and number the same is entered; and that the said registers or masters shall sign the said certificate when so indorsed, which certificates shall be taken and allowed as evidence of such respective registries in all Courts of record whatsoever; and that every page of such register books and every memorial that shall be entered therein, shall be numbered, and the day of the month, and the year, and hour or time of the day when every memorial is registered shall be entered in the margins of the said register books and in the margins of the said memorial ; . . . and that such register or master Rolt, Q.C., and A. E. Miller, for Hunt, argued, 1st. That Neve had express or constructive notice of Hunt's mortgage previously to March, 1857, or, at all events, previously to the time when the agreement of the 27th of June, 1857, was registered. Neve was cross-examined in order to show that he was abandoned. The following cases were cited as to the nature of the notice required to postpone a registered to an unregistered deed : Jolland v. Stainbridge, 3 Ves. 478; Wyatt v. Barwell, 19 Ves. 435. 2nd. That the agreement between Sir W. Middleton and Palmer conferred only a right to require the former to execute leases on certain terms, but did not confer any legal or equitable estate, or any present interest in any part of the Dalston estate, so long as the same continued not built upon such an agreement was not within the provisions of the Act: it was, therefore, unnecessary to register any document affecting the interest in the Dalston property thereby created: and, consequently, Hunt's mortgage, being earliest in date, had priority over Neve's charges for 10,000l., and 4,0007. 3rd. That if registration were necessary, then the indorsements were conclusive as to the time of regis tration: and, as Hunt's mortgage and Neve's charge of 4,000l. were stated to be registered at the sun time, the latter being earlier in date, ought to prevail over the former. It was admitted that this could not be so in Ireland, where, in consequence of the wording of the Irish Registry Act, the priority of all incumbrances was determined by their position on the register; so that tacking was impossible, Bushell v. Bushell, 1 Sch. & Lef. 98 ; Latouche v. Lord Dunsany, 1 Sch. & Lef. 137; but it was contended that the effect of the Middlesex Registry Act was different. 4th. That the agreement of the 27th of June, 1857, was simply a memorandum of deposit, and an agreement not under seal to execute a proper mortgage, and therefore, ought not to have been registered, Sumpter v. Cooper, 2 Barn. & Ad. 223; Wright v. Stanfield, 27 Beav. 8; Moore v. Culverhouse, 27 Beav. 639. 5th. That the 10,0007. mortgage to Neve, and his charge for 4,000l., could not be tacked, Neve having no legal estate in the Dalston property. 6th. That Neve had no right to consolidate his various securities as against Hunt. There was no decided case in which a mortgagee had been held to be entitled as against the mortgagor to retain his mortgage | for more than the specific debt, except where the mortgagee had the legal estate of which the Court would not deprive him, Jones v. Smith, 2 Ves. jun. 372; Selby v. Pomfret, 1 J. & H. 336; s. c. on appeal, Watts v. Symes, 1 De G. M. & G. 240 ; Vint v. Padgett, 2 De G. & J. 611; 7th. That in no case had the mortgagee been allowed to assert his right against a puisne incumbrancer without notice here Hunt could not have had any notice, his incumbrance being long prior to Neve's. The simple act of registration could not confer on Neve all the rights which he would have obtained by getting in the legal estate. He cited, Fagg v. James, 8 L. T. (N. s.) 5. to the debtor, that he should not redeem any one security without redeeming all, and subsequent incumbrancers were not in any better position than the original debtor. Nor was it necessary that the person asserting this right should have a legal estate; the principle being, that the debtor must fulfil the whole of his obligations before any one of the securities was given up. On this point Watts v. Symes was conclusive, the valuable security in that case being on an equitable interest. It was said, however, by Mr. Miller that the situation of Hunt was totally different from that of incumbrancers against whom the right had been enforced in previous cases. There the second incumbrancer knew he was dealing with mortgaged property, and must be held to be bound by all equities affecting the property; here Hunt was actually first incumbrancer, and must have retained his priority but for the operation of the Registry Act. But where the property dealt with was situated in a register county, it was part of the duty of a person taking a security to have it registered; if the deed were not registered, it would be postponed to every registered incumbrance, and would only take effect as a security from the date of registration. It would be most dangerous to hold that a second mortgagee was subject to this equity, while a first incumbrancer, who held back and allowed another mortgagee to get on the register before him, was not. There could be no doubt that the 10,0007. mortgage had priority over Hunt's mortgage, the Act clearly applying to all instruments under seal. It had been argued that the original agreement of 1846 was not an instrument whereby lands in Middlesex were affected' within the meaning of the Registry Act; but in the eye of the Court that agreement was simply a sale of leaseholds on certain conditions, and that being so, an instrument under seal would affect these lands. The The real contest related to the 40007. charge. instrument by which it was created did, in the eye of this Court, affect lands in Middlesex; but the Act (except so much as related to wills and judgments) was Giffard, Q.C., was heard in reply as to the priority in terms confined to deeds and conveyances. of the charge of the 27th of June, 1857. He submitted that there was no difference between the agreement in the present case and that in Moore v. The word writings in the 7th clause seemed, however, to contemplate instruments not under seal. The whole object of the Act, moreover, would be defeated if it were held that an instrument under seal must be registered, but one not under seal need not. As to the Culverhouse, loc. cit., where registration had been held to be necessary; that there was nothing in the Act to suggest that only writings under seal ought to be registered and pointed out the great incon-authorities, Sumpter v. Cooper did not decide the point, venience which would result, if no account were to be taken of subdivisions of time less than an hour in determining priority of registration. : WOOD, V.-C., said, on the question of consolidation, assuming that Neve's mortgage for 10,000l. had priority to all the other charges by virtue of registration, the case clearly fell within Watts v. Symes (loc. cit.). A person holding a number of mortgages as securities for debts due to him from one debtor was entitled to say for in that case there was simply a deposit of deeds, without any memorandum whatever; consequently there was nothing to register. The instrument in the present case could not be distinguished from that in Moore v. Culverhouse, which his Honour would follow. As to the remaining point, he must hold that, in the absence of any evidence to the contrary, the registrar had discharged his duty, in accordance with the sixth section of the Act, and registered first the deed which was first given to him. The consequence of the other |