L rial subsequently to be presented, and acted upon before the 1st of August, 1847; and it does not deal with works already commenced, but with works not yet undertaken. The Commissioners are then to inquire into three things-the extent of the lands to be drained or improved, the probable cost of such drainage, and the benefit likely to accrue from the proposed works; not one word is said as to collateral proceedings and inquiries regarding mills and factories, these three things alone being contemplated before the drainage works were to be commenced. Having approved of the proposed works, the Commissioners are to lodge a copy of their engineer's report in a suitable place, and to publish Hotice of this fact; and section 48 shows what this notice is to contain, namely, it is to require the proprietors of the lands proposed to be drained to furnish to the Commissioners at their office in Dublin before a certain day their assent to or dissent from the proposed works; and if the proprietors of more than half the lands assent, then the Commissioners may publish a final notice, stating that all preliminaries required "by the provisions for summary proceedings under this Act" have been complied with. It is clear that this notice refers to the summary power given under this Act alone, and it is equally plain that this Act contemplates nothing more than the drainage of lands, which could be exercised without resorting to the provisions coucerning mills and factories contained in the former Acts, unless it was also in the power of the Commissioners to comply with those provisions, as will appear from section 49, which contains the following words, "and all and every the powers, authorities, and privileges, vested in or given to the said Commissioners by the said recited Acts or this Act, and the several provisions in the said Acts or this Act contained, shall and may be used and exercised by the said Commissioners, and applied, as far as the same are or shall be respectively applicable to and for the purposes of the provisions for summary proceedings under this Act." But in either case it was not necessary to have recourse to the other proceedings as to the owners of lands, which were required by the former Acts. What the portion of the Acts relating to summary proceedings required was all that was necessary as to them, the proceedings of the former Act being inapplicable; otherwise the provisions of the latter enactment would be insensible. The last ground of defence therefore fails; for it has appeared upon the evidence that a portion of the works carried on by the defendants were undertaken for purposes not contemplated by the Summary Proceedings Act, and this is a complete answer. One or two other matters have been urged upon us by the plaintiff's counsel, and one of these was, that the Commissioners are acting beyond their jurisdiction, and without the authority of the Legislature, if they at all interfere with the ordinary amount of the working water-power of the mill; that is to say, that although the report may have been made, and notice served, meetings duly held, and the declaration properly framed, that still this court could not protect the Commissioners if they diminish the working water-power of the plaintiff's mill, on the grounds that their only powers were such as that they should preserve that amount of water-power undiminished. As to this proposition I give no opinion. There are strong expres sions in the Act strictly prohibiting any interference with the water-power of a mill; but that is a question which this court need not decide upon the present occasion. It is sufficient for us to say that we conceive that the Commissioners have not done sufficient to acquire the necessary jurisdiction. PENNEFATHER and GREENE, B. B. concurred. Exceptions overruled. COURT OF CHANCERY.-1853. [Reported by WILLIAM HICKSON, Esq. Barrister-at-Law } WALCOTT v. CONDON.* -April 27, 28. Mortgage-Extinguishment. A being entitled to an equity of redemption, agreed with F for an advance of money, for which he consented to grant an annuity out of the mortgaged premises. The sum advanced was exactly equal to that due upon the mortgage, and was paid to the mortgagee, who assigned the premises to B the brother of A, without declaring any trust, and on the following day A and B joined in granting an annuity to Fout of the mortgaged as well as other lands. This deed created a term of 200 years in a trustee, to secure the annuity, and there was a judgment collateral, entered up at the suit of F against A and B. Held, that there was no extinguishment of the mortgage debt, and that F was entitled-as against a mortgage puisne to the paid-off mortgage, but prior to the deed of annuity to the benefit of the paid off security to the extent of the money due to himself. THIS case came before Lord Chancellor Brady, upon a petition of re-hearing presented by the plaintiff against the decree of Lord Chancellor Black. burne. Christian, Sergt., F. Fitzgerald, Q. C. and R. R. Warren for the plaintiff. The Attorney-general, Martley, Q. C. and Ince for the defendant Ferguson.-[The following cases were cited and commented upon: Parry v. Wright, (1 Sim. & Stu. 369; s. c. 5 Russ. 142); Toulmin v. Steere, (3 Mer. 210); Watts v. Symes, (1 De G. MN. & Gord. 240; s. c. 16 Jur. 114); Mackenzie v. Gordon, (6 Cl. & Fin. 785.)] The facts of the case will be found fully reported ante Vol. V. p. 49. LORD CHANCELLOR.-I have considered this case, and I have had furnished to me by Mr. Westropp the judgment of my predecessor. The soundness of that decision I see no reason to doubt. The simple point decided was, assuming this to be an annuity affecting only the lands of Scart, and that there had been no allusion to the other lands included in the deed of the 8th of November, 1850, that the party had not dealt with the paid off security so as to extinguish or to merge it in the equity of redemption in the lands of Scart vested in James Condon, the younger. On the whole I have no difficulty Ex relatione JOHN BLACKHAM, Esq., Barrister-at-Law in concurring in the judgment of my predecessor be- of the land, and on the next a conveyance of it to a fore whom the case was fully argued upon the autho- cestui que trust. The instruments fail to show any inrities, to which I shall briefly refer. The established tention to keep the mortgage on foot for the purpose principle is, that where an owner of an estate of of validating the annuity granted to Wright; he inheritance deals with an outstanding security in took, therefore, not by way of mortgage, but a dry such a way as to show he considered it as being legal estate, very different from that here, where paid off for his own benefit, he cannot set it up as the mortgage debt is still subsisting. Then, look. against outstanding incumbrances. That was de-ing at the intention, there does not seem to me to cided in the case of Mackenzie v. Gordon, (6 Cl. & be any means of making out a trust for James ConFin. 875, 883); but it is also there said that where don, the younger. There was no payment by him; it a subsequent incumbrancer advances money, and it was Mr. Ferguson who paid the money. The mortis a part of his contract that he shall have an assign-gage was not extinguished either in form or substance. ment of the prior incumbrance, then he is entitled Then are we precluded from looking at the intento stand in the place of that incumbrancer whose tion for the purpose of showing that the money came debt is paid off by the money which he advances, to the hands of Delmege, not from James Condon, and whose incumbrance he procures to be assigned but from Ferguson? The facts show that the inten to himself. That was a case presenting many diffi-tion of the parties was that the mortgage should subculties: it was very uncertain whether the securities sist. R. S. Condon joined in both deeds of transfer, were merged, and the Lord Chancellor recommend- and if the mortgagee chooses to give such an advaned their Lordships to come to the conclusion that tage to an annuitant and joins in the deed of grant, they were warranted by the facts in concluding that I see no objection to it. The conveyance to Mr. Ferthe debts were paid off with the money of the lend-guson is one in which both R. S. Condon and James ers, who had advanced their money from time to Condon join in granting the annuity, and thereby time, and that the securities had never become the give to one person out of their respective rights; property of the owner. It is plain from that case, R. S. Condon gives out of his inheritance, and Jas. and the other authorities, that it is competent for Condon out of his equity of redemption; and if the parties, where a subsequent incumbrancer advances mortgagor chooses to give an advantage to an anmoney, and it can be collected from all the circum- nuitant, and the mortgagee joins in the deed of stances that it was intended to give him the benefit graut, I can see no objection to that course; and of the discharged securities, that it may be done; if it be done by proper forms I do not see how it but the intention of the parties is material. The can be said to give legal rights to intermediate cre question then is, what has been done in this case? ditors. The mortgagee can alone grant out of the [His Lordship stated the facts.] It was competent legal estate and if it be with the concurrence of the for Mr. Ferguson to have said, I will advance this mortgagor, I see no objection to the transaction. It money, but I desire to have the prior security for must come to this, and I know no authority for it, my protection. There could be nothing illegal in that the intervening creditors might say they could that, and the Master has found that in effect the file a bill for the recovery of this demand, claiming agreement was for the purpose that the "annuity the benefit of the grant of the annuity as a ground might be effectually secured." Now when we con- for saying that the prior mortgage was extinguished. sider that for that purpose the annuity was extend- I cannot accede to that proposition. If the morted over other lands than those of Scart, it is not a gagor and mortgagee join in making a lease could violent presumption to hold, when this object could the puisne incumbrancer say that is my lease. I only be effected as to the lands of Scart, by keeping can understand when an owner in fee gets money the mortgage alive, that such was the intention of the and pays off the prior mortgage, and gets an asparties. There was no conveyance by Mr. Delmege sigument to himself, that he may, as in the cases to a third party as trustee. The deed is in the com- of Toulmin v. Steere and in Parry v. Wright, exmon form of a conveyance by Mr. Delmege to Rd. tinguish the mortgage; but that cannot take Smith Condon of the lands and of the mortgage place where the conveyance is not for the purdebt, without one word of trust to keep the mort-pose of vesting all in one person, but for the purgage distinct from the inheritance, and there is no-pose merely of paying off a particular debt, and thing in this conveyance as there was in the cases for which purpose it is necessary, for the security of Parry v. Wright or Toulmin v. Steere to show such an intention. In Toulmin v. Steere the court held that the conveyance extinguished the debt. The circumstances of that case left nothing for doubt but that the estate and the debt were made one. of the person advancing the money, that the mortgage should be kept alive. In cases of leases by a mortgagee in fee, and confirmed by the mortgagor, I have never found that by reason of such a dealing the mortgage was gone to the extent of the land In Parry v. Wright the facts were very simi- demised, and the rent reserved on that demise. lar to those of this case-it was the case of the pur- Take the stronger case of a first mortgagee and chase of a mortgage; it is therefore necessary to the mortgagor getting a further advance of money, see how far they differ. The contract was entirely and partly paying off the mortgage, that would not different; the conveyance was quite different-it have the effect of destroying the claims of the first was made to Maddocks, merely reciting that the mo- mortgagee because he joined in the new security. ney was due, and there is nothing to show that it There are precedents of conveyances where a was not the ordinary case of a party putting an end mortgagor and a mortgagee grant to the same to a mortgage; there was no conveyance of the mort-person to secure a consolidated sum, and nobody gage debt; on the same day there was a conveyance has ever argued, that where that is done for the purpose of securing a consolidated sum, the original mortgage was thereby lost; neither the lease nor the new mortgage could be affected by the common conveyance. Decree affirmed. ROLLS COURT. [Reported by RICHARD W. GAMBLE, Esq., and G. O. MALLY, Esq., Barristers-at-Law.] GOING V. HARDING.-Nov. 9. Practice-Parties-Notice under the 1st section of the Chancery Regulation Act, and 32nd General Order. A by his will leaves a life estate in £2000 to B, remainder to another for life, with remainder over. The executor of B was also personal representative of A, and as such was entitled to certain funds reolized in the Incumbered Estates Court. A creditor of B obtains judgment for his debt, and gets liberty to transfer the fund there realized to the ere lit of his suit. A petition was then filed by the legatees entitled in remainder to the corpus of the fund of £2000, and an order is made in the Incumbered Estates Court, that the fund remain in court, until the rights of the last mentioned petitioners are decided, but giving the creditor of B liberty to apply to have the fund transferred to the credit of his matter, unless the petitioners in the other matter made him a party to their suit. A conditional order was granted for the service of a notice under the above Act and Rule for this purpose, and on motion to shew cause against it, Held, that the creditor of B, the legatee, could not be made a party to a suit instituted by the legatees in remainder for the administration of the estate, by notice under the above Act and Rules. The fund was directed to be transferred to the credit of both matters, and a reference granted to the Master to decide the rights of all the parties; the question of costs was reserved. THIS was a motion to shew cause against making absolute a conditional order granted in this matter by the Master of the Rolls, on the 6th day of July, 1853, by which it had been ordered that the petitioners should be at liberty to serve a notice on William Roche, pursuant to 1st section of the Chancery Regulation (Ireland) Act, and the 32d of the General Orders of July, 1851, binding him with the several proceedings that were bad, or should thereafter be had in the matter, unless cause shewn. The facts were shortly these-William Roche had been a creditor of Faith Smith men tioned in the petition, and the respondent, Joseph Robert Harding, was executor of her will. The said William Roche had filed his cause petition against the said Joseph Robert Harding as such executor, and a reference had been made to the Master, who found by his report that the said Faith Smith was entitled, under her husband's will, to the interest of £2000 during her life, that the said J. R. Harding was her executor and also the personal representative of her said husband, and that a sum of £2117 8s. lld. was due to the estate of the said Faith Smith out of the assets of her said husband. The amount of certain judgments was due to the said J. R. Harding by one R. R. Fisher, whose property was in the Incumbered Estates Court, and a claim had been lodged in that court in the matter of the estate of Robert R. Fisher, pursuant to an order of the 9th Feb. 1853, made in the cause of Clarke v. Fisher. Then by a decretal order of the 9th June, 1853, it was ordered by the Lord Chancellor, that this report of the Master should stand confirmed, and that the amount which should be found to be due to the said J. R. Harding in the Incumbered be lodged in court to the credit of the suit of Roche Estates Court, on foot of these judgments, should v. Harding, and that the said Wm. Roche should be at liberty to make the necessary applications to the Incumbered Estates Court for that purpose. This application had been made by the petitioner Roche, to Commissioner Hargreave, and stood over for the settling of the final schedule. The present cause petition was filed under the 15th section of the Court of Chancery (Ireland) Regulation Act, by three subsequent legatees entitled in remainder, under the will of the said Thomas Jenkins Smith, to the said sum of £2000, against the said Joseph R. Harding, as his personal representative, praying for an administration of the assets, and payment of their legacies. In consequence of an application made to him on the 1st July, 1853, Mr. Commissioner Hargreave made the following ruling :"Let the balance due on foot of the judgment of Hilary, 1810, remain in court until the cause petition in Chancery (Going v. Harding) is either dismissed, or results in a decree to administer the estate of Thomas J. Smith, to have the fund transferred to the cause petition, with liberty for the petitioner Wm. Roche, (in Roche, petitioner, Harding, respondent,) to apply to have the fund transferred to the latter cause petition, in case the petitioner in the former matter do not forthwith make Roche a party to these causes." Upon this ruling being made the petitioner Going applied to the Master of the Rolls and obtained the conditional order of the 6th July, 1853, for the service of notice on the petitioner, Mr. Roche. D. R. Kane, with whom was Leech, for the petitioner in Roche v. Harding, now showed cause against the conditional order, and submitted that Mr. Roche being only a creditor of one of the legatees could not have been made a party to the suit of Going v. Harding. That if it were intended to bind Mr. Roche with the proceedings in that suit he should have been named as a respondent in the prayer of the petition, for by the 6th General Order of July, 1851, every person against whom any direct relief is sought should be made a respondent in the first instance; but the object of the petition here was to bind Mr. Roche as to the proceedings without making him a party, which could not be done. Moreover by the 13th General Order the notice to be given must be in the form given in the schedule, and the order for the service of this notice should be an absolute and not a conditional one. Mr. Going's petition was filed after our decretal order was pronounced, and was unnecessary inasmuch as Mr. Roche was in the light of a trustee for the parties interested. The proper proceeding to have taken would have been to file a bill for a review. in the suit of Roche v. Harding, giving liberty to the petitioner in that suit to have the whole sum transferred to the credit of the cause; and Commissioner Hargreave subsequently made an order, directing the fund to remain in court until the suit of Going v. Harding was decided, with liberty to the petitioner William Roche to apply to have the fund transferred to his cause, in case the petitioner in the suit of Going v. Harding did not forthwith make Mr. Roach a party to his suit. In consequence of the order of the Incumbered Estates Court an application was made for liberty to serve a notice on Mr. Roche, pursuant to the first section of the Act and the 32nd General Order, to make him a party to the suit; but it does not appear to me that you can make a person who is only a creditor of the legatee a party to the suit in this way. The petitioner then says he would not have served the notice to make him a party were it not for the order of Mr. Hargreave, and it appeared that if that order had not been complied with, the entire sum The would have been transferred to the cause of Roche Deasy, Q. C. and with him B. Stephens, in support of the conditional order, submitted that the proceedings of the petitioner were perfectly regular, for by the 11th Gen. Order when a petition is filed for an account of a personal estate no person is to be made a respondent in the first instance, except the person representing such personal estate; and if the petitioner does make any other a party he must bear the costs of the proceedings; so that Mr. Roche could not have been made a respondent in the first instance; but then it is provided, by the 1st section of the Act and the 32nd General Order of 1851, that any person can be made a party by the service of the notice directed, though not in such a manner as to bind him prospectively, the intention of the Act and Rules being, that when a new party is brought into the suit by the service of the notice he is to be in the same position as any other respondent, with this addition, that the court may bind him as to the proceedings already had. Master's Orders, which provide for the service of the. Harding, whereas it should have been transferred notice of the petition, seem to contemplate the same thing, as but one form of notice is given for service on all persons whether original respondents or not, the only difference to be made being, that when the party is not served in the first instance the notice must state the stage of the proceedings; so that Mr. Roche after the service of this notice will be exactly in the same position as if he had been originally named a respondent. We applied for liberty to serve this notice in pursuance of Mr. Hargreave's ruling of the 1st July, 1853, and could not have adopted any other course. A similar no. tice was directed to be served in the case of M'Cormack v. Murphy, (5 Ir. Jur. .) Robert Warren appeared for the respondent Harding. MASTER OF THE ROLLS.-There is some difficulty in this case in matter of form, and it arises in this way-Thomas J. Smith being possessed of a sum of £2000, by his will bequeathed it to his wife Faith Smith for life, remainder to another party for life, and remainder over to another, who is entitled to the corpus of the fund. Joseph R. Harding is the executor of Faith Smith, and also the personal representative of Thomas J. Smith. It is then contended that the fund is assets of Thomas J. Sinith, and that previous to disposing of the assets of Faith Smith it is necessary to ascertain the rights of all parties entitled under the will of Thomas J. Smith. The question arises as to who are entitled to the assets of Thomas J. Smith, which will be realized in the Incumbered Estates Court. There are two judgments due to the personal representative of T.J. Smith on the estate of Mr. Fisher, which is to be sold in that court, only one of which will be realized, and the sum produced thereby will not be more than sufficient to pay Faith Smith the arrears of her interest, and if these arrears were paid in full, the present petitioner would thereby be excluded from the corpus of the fund. A question may also be raised that Faith Smith was not tenant for life of all the residue, but only of the £2000. The difficulty then arises in this way: an order was made to the credit of both causes. Then there is a decree of the Lord Chancellor, ascertaining that a sum of £2417 8s. 11d. is due to the estate of Faith Smith out of the assets of her husband, and therefore the fund in the Incumbered Estates Court should not be administered until it is ascertained what part of it Faith Smith is entitled to. Some proceedings should be taken for this purpose; but I do not think that the effect of the General Order is to make one a party to a suit who, under any circumstances, could not have been a necessary party. Under the circumstances I shall not discharge this order with costs, but I have framed an order which I think will meet the justice of the case. First, I will direct the motion to show cause to stand over, as I will be in a better position to decide the question of costs when I see what the rights of all the parties are. Then, in order to get rid of the diffi culty of the fund being transferred to either cause, I will direct that the order of the 9th of February be altered, and that the petitioner Roche be at liberty to apply to the Incumbered Estates Court for a transfer of the funds to the credit of both causes. Then, as to the question how the rights of the parties are to be ascertained, I shall direct the Master to inquire and report who are entitled to the sum that shall be so transferred to the credit of both causes. The following order was made : "Let the motion to shew cause in the first matter by W. Roche, Esq. stand over, and let the order made on the 9th of February, 1853, in the cause in which Richard Clarke is petitioner, Robert Fisher and others are respondents, and in other causes and matters, be varied, so far as it orders that the said W. Roche should be at liberty to apply to the Incumbered Estates Court for the transfer of the portion of the proceeds of the sale of the estate of Robert Fisher in said order mentioned, to the matter of W. Roche petitioner, Joseph Robert Harding, Esq. Faith Smith, executrix of Thomas J. Smith, respondents, let the said W. Roche be at liberty to apply to the Incumbered Estates Court for such transfer to the credit of said matter, and to the credit of this matter in which John J. Going and Caroline Going otherwise Ward, his wife are petitioners, and Joseph Robert Harding and John E. Jones are respondents, and in the event of the said W. Roche not obtaining said order from the Incumbered Estates Court within ten days, let the petitioner in said last mentioned matter be at liberty to apply to the Incumbered Estates Court, that such transfer should be made to the credit of the said two matters, and if such transfer should be made by the Incumbered Estates Court to the credit of the said two matters, let the accountant-general of this court be at liberty to accept such transfer, and let the Master in the said matter of John F. Going and Caroline Going his wife, and Henry W. Lover and Harriet his wife petitioners, and Joseph R. Harding and John E. Jones respondents, in proceeding under the order of the said Lord Chancellor of 18th of June, 1853, inquire and report who is or are entitled to the said sum so to be transfered to the credit of the said two matters, and allocate the same between the parties entitled thereto, and counsel for W. Roche not objecting, let the Master make such inquiry and report, without being bound by the report in said cause of Roche v. Harding, or the decree founded thereon, and reserve the question of costs of this motion until the Master shall have made his decretal order under the Lord Chancellor's order of the said 18th of June, 1853, and his report under this order, and with liberty to W. Roche to apply for his costs of this motion, in the matter in which he is the petitioner and Joseph R. Harding is the respondent, in case they should not be awarded to him against the petitioner in the first matter." INCUMBERED ESTATES COURT.—1853. [Reported by W. P. CARR, Esq., Barrister-at-Law.] IN RE GERRARD'S ESTATE.-Nov. 5. When a question is raised impeaching the validity of an instrument, under which the petitioners have obtained an order for a sale, the court will not enter into a consideration of that question, but will stay the proceedings imposing terms upon the party to proceed elsewhere. Lloyd, Q. C. with whom was Osborne, moved to set aside the absolute order for sale made in this matter. From the abstract of title it appeared that Thomas Gerrard was made tenant for life under his marriage settlement, bearing date in January, 1805, with power of appointment, of the lands of Liscarton, to such one or more of his children as he thought fit, and in case of no appointment the said lands to be divided equally between the children of the marriage. The tenant for life by deed bearing date the 4th of May, 1828, appointed the lands of Liscarton to his eldest son William Gerrard in fee, and charged these lauds and others with portions for his other children. The petitioners claim as judgment creditors of Thomas Gerrard, tenant for life, and William Gerrard seized in fee under the power of appointment. It was contended on behalf of one of the younger children that the power of appointment of the lands of Liscarton to William Gerrard, in 1828, was null and void, the tenant for life appointing the lands in consideration of his son executing the bond to secure the debts of his father. In support of this statement a case, submitted on behalf of the tenant for life at the time of the execution of the power, was produced, from which it appeared that the object of the execution of the power was to secure the judgment creditors of the tenant for life. Rolleston, Q. C. and Drury for the petitioners. THE COURT declined to decide the question raised it not appearing upon the abstract of title, but as the question was one of great importance they would order the proceedings in this court to be stayed until the 1st of January next, the party moving the motion undertaking to file a cause petition raising the above question on or before the 1st of January. COURT OF QUEEN'S BENCH. MICHAELMAS TERM, 1853. [Reported by FLORENCE M'CARTHY, Esq., and SAMUEL V. PEET, Esq., Barristers-at-Law.] MURPHY IN Replevin v. STOKES.-Nov. 18. Replevin-Pleading-Traverse modo et formâ9 & 10 Vic. c. 111. In an action of replevin the declaration alleged that certain cattle of the plaintiff were taken by the defendant upon a highway. "The defendant avowed having seized the cattle as a distress for rent in arrear, in a certain close in respect of which the rent was due, and thence having taken and led them to the highway in question. The plaintiff pleaded in bar that the defendant did not take the cattle in the said close modo et formâ, &c. Upon the trial the plaintiff relied upon the fact of the absence of a notice of distress as required by the 9 & 10 Vic. c. 111, s. 10, and also of the evidence tending to negative the fact of the distress having been made by a duly authorized bailiff, and so rendering it illegal and void ab initio. Held, that the issue joined under the plea in question simply related to the fact of the taking, and that it was not competent for the plaintiff to rely upon special matter for the purpose of showing that the taking did not bear the character of a distress. THIS was an action of replevin for the taking of a certain horse and foal upon the highway leading from Killarney to Killorglin, in the parish of Kilmane and county of Kerry. The defendant avowed for the said taking, because that Timothy and Eugene Moriarty, from the 25th March, 1851, to the 29th April, 1852, next following, and from thence until the said time when, &c., held and occupied a certain close, &c. as tenants to the defendant, by |