1842. Chancery. V. HURLY. clusive on the defendant, and he cannot gainsay it, but the fact of his jurisdiction is not stated sufficiently there; the caption then states that THE QUEEN he is a Master Extraordinary, and goes on to state that he is so in and for the county of Cork; therefore, the caption not only states what the body of the recognizance had stated, namely, that he was a Master Extraordinary, but it goes on to supply the omission in the body of the recognizance to state what was equally necessary, viz., that he was a Master Extraordinary in and for the county of Cork. In truth, the difficulty in all those cases arises, as I have been told by the Counsel for the defendant, from the irregularity in the mode of pleading in those cases that has prevailed in Ireland; the two characters of a writ and a declaration are mixed up together, and that has led to the difficulties that arose in this case. That is the reason why the condition of the recognizance does not appear on the face of the scire facias. It is very difficult, therefore, to put a nice construction on pleadings such as these; it is only lately that any averment of the jurisdiction of the person before whom the recognizance was taken, was introduced into the scire facias at all: the early records do not contain any such averment; so that it is a modern improvement to have any averment at all upon the subject. On the face of the pleading, therefore, an averment of the jurisdiction of the person who took the recognizance being deemed necessary, the pleader attempted to state it this way-" The said defendants came before James "Barry, who then and there was a Master Extraordinary of the High "Court of Chancery;" so far he follows the recognizance itself, but then he goes on to say, "in and for the county of Cork," and those latter words are an introduction of the pleader himself. The first question is, whether that is an averment of the jurisdiction of the person who took the recognizance, or whether it is a statement of matter of record. It is said that it is partly composed of what is part of the record, and partly of an averment of the pleader, and that it is impossible to separate them. But I think it is perfectly clear that it is all averment by the pleader ; because, look at the language used, "who then and there was, &c;" now, that cannot belong to the recognizance-the recognizance does not contain any such words, nor does it say "now and when ;" so that it is quite clear that the entire is an averment of the pleader. Then, is it essential where the averment of jurisdiction is found? most clearly not; provided you have a clear averment of the jurisdiction of the Officer, by whom the recognizance was taken, it is no matter where you find it, it does not signify in what part of the pleading it occurs. Supposing, then, that it is all an averment of the pleader, is there any objection to what it contains? It was first argued, that if you treat it all as an averment, then you treat as part of that averment the statement in the recognizance itself, that the person before whom it was taken was a Master Extraordinary. Then it was said that there was a misdescription, because in the recognizance he is described as "James Barry, Master Extraordinary, county of Cork," and in the scire facias as "James Barry, Esq." generally, and it is contended that that is a variance. But that is not a misdescription, it is a mere omission of part of the description; and then the question is, is that omission important, or does it amount to a variance? Now, the case cited, which was decided by Mr. Justice Burton,* was one of infinitely more difficulty, because there, the man was described in the recognizance as an Esquire, whereas in the scire facias the description of Esquire was omitted, and it was held that that was no misdescription, but a shortness of description. And yet the omission there may have been very important, because it took away the identity of the description, the part omitted might have been what distinguished the party to the recognizance from others of the same name, residing in the same place. I am not saying one word against the decision, or presuming to question the propriety of the conclusion which that very learned and eminent Judge came to, I am only pointing out the difficulties which there were in that case, and shewing that they were greater than exist here. I am satisfied, therefore, that there is no weight in the objection that there is a variance. Here, as there must be an averment that the person before whom this recognizance was acknowledged had jurisdiction, not only generally but for the county of Cork, and that is not stated in the recognizance itself, the omission must be supplied by averment, and there is no weight in the objection to the omission of the words, "county of Cork," as part of his description. If that be so, considering the whole as an averment of the pleader, there is no objection to the form in which it is done here. If it be traversable (upon which I give no opinion) the party could traverse the entire averment as it stands. Supposing, however, that I am wrong in this, and that the true construction of it is, that it is partly a statement of the record and partly an averment of the pleader, and that you cannot strike out the words "a Master Extraordinary of the High Court of Chancery, as appears by the said record," because they are in the body of the recognizance, so that there is, as it were, a slicing off a sufficient averment of jurisdiction from the recognizance itself; still it is no prejudice to the defendant. There is no magic, as I stated, in the words or in the arrangement of them. The pleader thinks it necessary to aver on the face of his pleading that the person before whom this recognizance was acknowledged had jurisdiction to take it, and he finds that the recognizance itself precludes the opposite party from objecting that he was a Master Extraordinary, and he takes that, therefore, from the recognizance, and then he goes on to say, that he was a Master Extraordinary in and for the county of Cork You cannot certainly traverse the first • Pierson v. Fahy, 1 Jebb & Burke, 42. 1842. Chancery. THE QUEEN 'บ. HURLY. 1842. Chancery. บ. HURLY. part of the allegation, namely, that he was a Master Extraordinary, because you are precluded by the recognizuance-but what is to prevent THE QUEEN you from traversing that he was so "in and for the county of Cork?" One allegation is quite independent of the other, for he may be a Master Extraordinary, and yet not so for that particular county. If, therefore, the defendant traversed that this person was a Master Extraordinary in and for the county of Cork, he would be enabled to succeed on shewing that he had no authority to act as such for that particular county. There ought not to be too much strictness in construing pleadings of this description, although the Court is bound to see that the rules of pleading are substantially complied with. I must consider that this allegation of jurisdiction is itself but a modern introduction, and that the old records do not contain it: I ought not, therefore, to hold the party too closely to a strict construction of it, where no substantial injury is done to the defendant. Upon the whole, therefore, I must overrule this plea. Mr. O'Shaughnessy, then applied for leave to withdraw the plea of nul tiel record, and to take issue upon the fact of the jurisdiction of the Master Extraordinary in manner suggested by the Court-but his Lordship refused the application. May 31, BALFE v. LORD. A party enBy indenture bearing date the 4th of July, 1827, and made between titled to a renewable free- the Rev. Arthur Lord, and the Rev. Arthur Wolfe Lord, of the one hold conveyed and it to another part, and George Owens of the other part, reciting the title of Arthur for securing a Lord, and Arthur Wolfe Lord, to certain lands called Bruslanstown, and sum of money interest. Rouskey, in the county of Meath, held by them in divided moieties, under a lease for lives renewable for ever, and reciting that Owens had previously thereto lent them the sum of £800, and that it had been the borrower to agreed that the same should continue on loan, until it should be paid off The conveyance contained a covenant by pay the money whenever he sdould be required, and a proviso that on payment of the money at any time the conveyance shold be void, and the lender would re-convey. A bond and warrant of Attorney were also executed by the lender for securing the money, and judgment was entered on them. Held, that the proviso for redemption was qualified by the covenant for payment of the money, and that the lender was entitled to a foreclosure and sale. The objection by a prior mortgagee brought before the Court in a foreclosure suit, that the plaintiff has not offered by his bill to redeem him, if valid, ought to be taken advantage of by demurrer. The Court will overrule it at the hearing. with all interest and costs by perception of the rents of said premises, into receipt of which the said Arthur Lord and A. W. Lord had agreed to put said George Owens; in pursuance of said agreement, and in consideration of said sum of £800, the said Arthur Lord and A. W. Lord, conveyed the said lands to the said George Owens, his heirs and assigns, to hold, until by receipt of the rents and profits of said lands, the sum of £800, and all interest thereon should be paid; upon trust to receive and retain the rents and profits thereof, until by such receipt the said sum of £800, and all interest thereon should be paid; and immediately after payment thereof, to re-convey the said lands to the said Arthur Lord and A. W. Lord, or as they should direct. Arthur Lord shortly afterwards died, leaving Arthur Wolfe Lord, hist eldest son and heir-at-law, who thereupon became entitled to the entirety of the lands conveyed to Owens. In the year 1832, Arthur Wolfe Lord borrowed a further sum of £300, from George Owens, and by indenture bearing date the 18th of September in that year, made between the said A. W. Lord of the one part, and the said George Owens of the other part, reciting the title of the said A. W. Lord, to the said lands, and that he had applied to Owens to lend £300, upon mortgage thereof, to which the other assented; the said A. W. Lord conveyed said lands to the said George Owens, his heirs. and assigns, to hold for the then subsisting lives, and all other lives which should be added, pursuant to the covenant for renewal, subject to the proviso for redemption thereinafter contained. A. W. Lord then covenanted with Owens to pay the £300, when required so to do by Owens, his heirs and assigns, and to pay the interest half-yearly, as long as the principal should remain unpaid; and George Owens covenanted with A. W. Lord, his heirs and assigns, that upon payment by him or them of the entire amount of the £300, and all sums due thereon for interest and costs, the said indenture, and a bond given by A. W. Lord, as a collateral security therewith, should be void, and that the said George Owens, his heirs and assigns, would, at the costs of the said A. W. Lord, his heirs and assigns, execute a proper reconveyance of said premises, and deliver up the said bond to be cancelled. A bond and warrant of Attorney collateral were executed by A. W. Lord at the time the mortgage bore date, and judgment was shortly afterwards entered up against him. George Owens having died, his executors filed a bill against A. W. Lord, and against an intervening mortgagee of the lands, whose security bore date in 1828, for a foreclosure, praying in the usual way an account and payment of what was due on foot of both, and in default of payment a sale, and the usual account of prior and cotemporaneous encumbrances; but the bill contained no offer to redeem the mortgage of 1828. The defendant A. W. Lord, admitted the mortgages, but submitted 1842. Chancery. BALFE V. LORD. 1842. Chancery. BALFE V. LORD. to the Court, whether under them the plaintiff was entitled to a sale of the mortgaged premises. The Counsel for the plaintiffs, prayed the usual decree, and submitted, that as by the second mortgage, the defendant Lord covenanted to pay the money when required, that the filing the bill was a sufficient requisition, and that, therefore, there was default in payment of the mortgage money, which entitled the mortgagee to a foreclosure and sale. Mr. S. Ferguson, for the defendant A. W. Lord.-The mortgages to Owens are both Welsh mortgages, and there can be no foreclosure of either: Bonham v. Newcombe (a); Howell v. Price (b). By the first mortgage the lands are conveyed to the mortgagee, upon trust for payment of the money by perception of the rents, and it is impossible that the Court can direct a sale for that purpose. By the second mortgage it is provided that upon payment of the mortgage money at any time, the conveyance shall be void. The estate of the mortgagee, therefore, is not absolute at law (c); and, therefore, there is no equity of redemption, and there can be no foreclosure. The plaintiff relies upon the covenant by Lord, in the second mortgage, to pay whenever required, and says his bill is a sufficient demand, but in the case of Teulon v. Curtis (d), where in a security similar to this, there was a covenant for payment of the money on demand, Lord Lyndhurst held that the mortgagee was not entitled to a foreclosure, and dismissed the bill. A similar question arose before the present Master of the Rolls in the case of O'Connell v. Cummins (e), and his Honor allowed a demurrer taken to a bill filed to foreclose such a security as this. Mr. Gayer, for the intervening mortgagee, objected that the plaintiff had not offered to redeem his client, and cited M'Donough v. Shewbridge (f), and Drew v. O'Hara (g). The LORD CHANCELLOR. This case does not, I think, admit of any doubt; but before I finally dispose of it I shall read the case before Lord Lyndhurst, which has been referred to. Here the mortgagor enters into a covenant for payment of the money whenever he should be required, and under that the money might be levied at any time. Then comes the proviso upon which the question arises. [Here his Lordship read the proviso for redemption |