NORRISH

v.

MARSHALL. [480]

[ *181 ]

For the defendants:

This is a case of novelty; it is certainly too late to contend that an assignee of a mortgagee, without notice to the mortgagor, does not take subject to the equities between the mortgagor and original mortgagee, but this case is peculiarly circumstanced. Collins was the attorney of the plaintiff before, at, and after, the period, when the defendant's mortgage was made. A dealing with Collins therefore must be considered as a dealing with the plaintiff, whose attorney he was, and the plaintiff must be taken to have had notice of the defendant's deed. It is not pretended that any account was settled between the plaintiff and Collins, previous to the defendant's mortgage. If the plaintiff had in any way reduced the amount of the mortgage money due to Collins, there was no indorsement to that effect on the mortgage deed. In 1812, when Marshall's mortgage was executed, there was not more than 2601. due from Collins in respect of wines sold to him. No case, no principle, establishes that, if a mortgage be made of real estate, and the mortgage is assigned, though without notice to the mortgagor, that the mortgagee can, as against the assignee of the mortgage, say, "by collateral dealings, I have discharged my mortgage debt." If Collins had filed a bill to foreclose, the plaintiff might have said, "your mortgage is discharged by the goods I have sold you;" but he cannot say so to an assignee of the mortgage. Is any possible claim a mortgagor may have against a mortgagee, to be set off against an assignee of the mortgage? Suppose an action for off against an assignee.

damages, and a verdict. Is that to be set
of the mortgage? An advance of money might be set off, but a
sale of goods, it is apprehended, cannot be set off as against an
assignee of the mortgage. Is the assignee of a mortgage not
merely to ask the mortgagor whether the mortgage is paid off, but
whether there are any outstanding accounts and dealings between
them? The account referred to by Collins in his deposition is not
satisfactory. If the Court should think that goods delivered to
Collins operates as against the assignee of the mortgage in reduc-
tion of the mortgage-debt, an account should be taken of the goods
delivered, and it should be ascertained whether the mortgage was
really discharged in that manner.

THE VICE-CHANCELLOR :

This case is singular in its circumstances; the general principle, that an assignee of a mortgage, without notice to the mortgagor, is

bound by the equities between the mortgagor and the original mortgagee, is not disputed. It is argued that Collins being the attorney of the plaintiff, it is to be considered that the plaintiff had constructive notice of the assignment of the mortgage to Marshall, but in the assignment of the mortgage Collins acted, not as the attorney or agent of the plaintiff, but in his own individual character of mortgagee. It is next said, that the mortgage is taken to have been satisfied, not by direct payment made in that respect, but by the balance of a general account, partly composed by the supply of goods, and, that though the assignee of a mortgage may be affected by direct payments made to the assignee on account of the mortgage, he is not to be affected by the balance of a general account so composed. The principle is, that as against an assignee without notice, the mortgagor has the same rights as he has against the mortgagee, and whatever he can claim in the way of set-off, or mutual credit, as against the mortgagee, he can claim equally against the assignee. The remaining *question is, whether I am to conclude the defendant, by the evidence of Collins, as to the fact that the plaintiff has fully satisfied the original mortgage debt, and under the circumstances of this case I think I ought not so to conclude him. Let it be referred to the Master to inquire whether Collins had fully paid or satisfied the mortgage debt when the plaintiff had first notice of the assignment made by Collins to the defendant, and let the Master be at liberty to state any circumstances specially, at the request of either party; and reserve the consideration of further directions and costs until after the Master shall have made his report.

NORRISH

V.

MARSHALL.

[ *482 ]

ELLERTON v. THIRSK (1).

(1 Jac. & Walker, 376.)

Personal service of a notice of motion to commit for breach of an injunction is necessary; and cannot be dispensed with though counsel undertake to appear for the party.

1820.

April 16.
May 15.

Lord ELDON,

L.C.

If the original writ is required, the motion cannot be made without [1 Jac. & W. producing it. 376]

MR. HEALD moved to commit the defendant for breach of an injunction.

(1) "The main authority for the necessity of personal service of a notice of motion to commit; " per KEKEWICH,

J., Mander v. Falcke [1891] 3 Ch. 488,

492, 61 L. J. Ch. 3, 64 L. T. 791.

ELLERTON

v. THIRSK.

May 15.

1822.

Feb. 16. March 11.

Rolls Court.
PLUMER,
M.R.

Jac. 451 ]

On its appearing that the notice of motion had been served only on the clerk in Court, Mr. Hart, for the defendant, insisted that personal service was necessary; but offered, if the motion were postponed for a few days till some affidavits were prepared, to appear upon it for the defendant, without a new notice being given. THE LORD CHANCELLOR :

I think he must be personally served. I should not like to make an order for committing a party, though counsel should appear for him, if I knew that he had not been served: another notice is therefore necessary.

The motion was now renewed on affidavit of personal service.

Mr. Hart asked for the original writ of injunction, which it appeared had not been brought into Court.

The LORD CHANCELLOR said the motion could not be made without producing the writ.

COLPOYS v. COLPOYS (1).

(Jacob, 451-465.)

A testator gives to some persons annuities of £- Long Annuities, and to several others legacies of £- Long Annuities, on one of which he directs interest to be paid at 57. per cent.

Evidence of the amount of his property admissible to explain the meaning of the latter bequests, and his property being insufficient to pay them in Long Annuities, held that sums of money to be raised out of his Long Annuities were intended.

ADMIRAL SIR JOHN COLPOYS, by his will, dated the 12th of November, 1818, gave all the property, of whatsoever kind or denomination, he might die possessed of, to L. S. Willett, Esquire, and Captain C. Dilkes, in trust, for the purposes aftermentioned. He gave to his niece, Mrs. Patience Baker, of Dublin (if living at his decease, and for her sole and separate use, and for which her receipts only were to be valid), an annuity of 100l. Long Annuities : and in failure of her, or at her death, the said annuity to be equally divided among all her daughters then living, for their sole and separate use, share and share alike, over and above any legacies they might be entitled to by that his will, or by any codicil. He gave to his niece, Mrs. Ann Bloomfield, residing in Dublin, if living at his decease, an annuity of 1007. Long Annuities,

(1) In re Grainger, Dawson v. Higgins [1900] 2 Ch. 756, 69 L. J. Ch. 789, 83 L. T. 209, C. A.

v.

COLPOYS.

[ *452 ]

for her sole and separate use; said annuity to devolve at her death COLPOYS to his nephew, Rear-Admiral Griffith (afterwards Griffith Colpoys), and his heirs. He gave to each of his grand nephews, living at his decease, 100l. Long Annuities. He gave to Mr. T. Abbott, of Dublin, husband of his late niece, Mrs. Ann Abbott, if living at his decease, 100l. Long Annuities. "I give to the twin son of the above Mr. Abbott, I think his name is Edward Singleton, if living at my decease, 100l. Long Annuities, with 5l. per cent. interest thereon from the day of his birth, said interest not to be considered as accumulating. I give to Mr. W. Colpoys, of Passage, Waterford, if living at my decease, an annuity of 201. Long Annuities. I give to each of the children of the said W. Colpoys, living at my decease, 50l. Long Annuities. I give to all my grand nieces, that may be living at the time of my decease, for their sole and separate use, to be among them equally divided share and share alike, over and above any other legacies they may be entitled to by this my will, or by any codicil I may think fit to add thereto, 5,000l. Long Annuities." He gave to the Rev. G. Madder, and to each of his sisters, ten guineas, as a testimony of his regard; to Vice-Admiral J. Dilkes 100l. Long Annuities; to Miss F. Sterling 50l. Long Annuities; to Miss M. Bourmaster 50l. Long Annuities; and to Miss A. Armstrong 50l. Long Annuities; and proceeded thus: "Should I, in my lifetime, by any visitation of Providence, be rendered incapable of attending to my own affairs, it is my particular request that all annuities left by me to any of my relations, also the interest of any legacies left them, may be regularly paid them by Messrs. Hoare, Fleet Street, so long as I live, or may continue in that helpless state. I also desire, that the remaining part of my income, whether funded or other property, shall be regularly paid as it becomes due to my nephew, Rear-Admiral Griffith (by Messrs. Hoare), or his order, for my support and his trouble during my incapacity; and in failure of him, to his nieces, Mrs. Ann Grace and Mrs. Susan Houghton, of Dublin, but not to remove me out of England." He gave to each of his trustees fifty guineas, and directed that they should be fully reimbursed any expenses they might be subjected to by the trust. He acquitted all his relations of any monies lent or given them in his lifetime; and gave to his nephew, Rear-Admiral Griffith, all and whatsoever sort of property, of whatsoever kind or denomination, he might die possessed of, not disposed of in the former part of his will, or by any codicil: in the

COLPOYS

V.

COLPOYS.

[ *453 ]

[454]

[455]

event of his nephew dying before him, he gave to Mrs. Patience Baker, for her sole and separate use, an additional annuity of 100%. Long Annuities; and in failure of her, *or at her death, said annuity to be equally divided amongst all her daughters. In the event of his said nephew dying before him, he gave to his children the property to which their father would otherwise have been entitled. He appointed his said nephew his sole executor; but in the event of his dying before the testator, or of his being abroad at the time of his decease, he deputed Lachlan M'Lean and Richard Houghton to act in all respects for him, until they should receive further instructions from his nephew; and in consideration of any trouble they might be at, he requested their acceptance of 100l. each Long Annuities, and all their expenses to be reimbursed.

The testator made several codicils, in one of which he expressed his regret at being unable to leave mementoes to any other kind friends, and trusted it would not be attributed to neglect on his part. He died in April, 1821.

The bill was filed by several infant legatees, to whom legacies of Long Annuities were given by the will, against the executor and trustees, for payment of their legacies. The defendants, in their answer, stated, that the testator's property, at the time of his death, consisted of 1,190l. Consolidated Long Annuities, 3,0001. 3 per cent. Consols, about 1,800l. in cash at his bankers, and furniture and other effects to the value of about 900l. Those of the legatees to whom Long Annuities were given, who were adult, had consented to accept their legacies in gross sums in pounds sterling, of the numerical amount mentioned in the will, and the defendants submitted that this was the testator's intention. The cause came on upon bill and answer.

Mr. Wingfield and Mr. Norton for the plaintiffs.

Mr. Horne and Mr. Simons for the defendant [cited Fonnereau v. Poyntz (1)].

Mr. Wingfield, in reply [cited Attorney-General v. Grote (2) and Stafford v. Horton (3)].

THE MASTER OF THE ROLLS:

From the importance both of this particular case, and of the general question which it involves, I shall not at present decide it; (3) 1 Br. C. C. 482.

(1) 1 Br. C. C. 472.

(2) 34 R. R. 183 (3 Mer. 316).