other half of the note may be in your possession: therefore it is fit, that you should indemnify them against the possibility, that the two parts may be brought together, and passed into another hand. As to the merits I have no doubt. They are proved by the clearest evidence.

March 16th. Mr. Richards and Mr. Heald, for the Plain

*

tiff, insisted that the mere loss of the instrument gives this [* 434] Court jurisdiction: the rule is so stated by Lord Redes

dale (1); and it does not depend upon the right to require an indemnity; observing, upon the objection, that the note from that part, which was produced, appeared not to be payable to order, that a distinction had never been made, whether the note was negotiable, or not.

The MASTER OF THE ROLLS.-Your argument is in direct contradiction to that of Lord Hardwicke; who in the case of Walmsley v. Child (2) assumes, that this Court has no jurisdiction, except for the purpose of ordering an indemnity, where indemnity is necessary. I am very unwilling to turn the Plaintiff round; thinking, upon the merits, that the justice of the case is with him: but at the same time I am afraid of breaking in upon the rules, established as to the jurisdiction of the courts, that, where a party can recover at Law, he ought not to come into Equity.

The Bill was dismissed.

SEE notes 2, 6, to Ex parte Greenway, 6 V. 812.

PAYLER, Ex parte.

ORDER in Bankruptcy on Petition for sale of premises, subject to an equitable mortgage: the General Order (8th March, 1794,) applying only to legal mortgages.

THIS Petition was presented by an equitable mortgagee; praying an Order for sale of the mortgaged premises for the usual purposes by the assignees under a Commission of Bankruptcy against the mortgagor.

Mr. Montague suggested, that a special Order was unnecessary; if the sale might take place under the General Order (3); which had been held by Lord Erskine in Ex parte Donold (4) to extend to

(1) Mitf. 105, 6.

(2) 1 Ves. 341.

(3) General Order in bankruptcy, 8th March, 1794.

(4) February 6th, 1806. Under a Commission against Joseph Bally, in 1826, the Vice-Chancellor directed the Commissioners to inquire, whether there was an equitable mortgage.

equitable mortgages: but there is a considerable difference of opinion upon it.

Mr. Roupell, in support of the Petition, and Mr. Cooke (Amicus Curia) said, the constant practice is to have a special Order in the case of an equitable mortgage.

The Lord CHANCELLOR [ELDON].—I rather doubt, whether it would be provident to extend the General Order to a mere equitable mortgage. We have often had extremely nice and difficult questions of fact, arising with regard to equitable mortgages (1). I apprehend, Lord Rosslyn considered the General Order as applicable only to legal mortgages. I shall make the Order upon this Petition; and, if it should prove expedient to extend the General Order to equitable mortgages, it will be better to declare that by a supplemental Order.

SEE note 4 to Ex parte Coming, 9 V. 115.

CHURCH v. BARCLAY.

[1810, MARCH 21.]

PLAINTIFF, appealing from a Decree, dismissing the Bill, entitled to the usual Order for the production and inspection of deeds (a).

MR. RICHARDS for the Plaintiff, moved, that deeds should be left with the Clerk in Court for the usual purposes of inspec[* 436] tion, &c.; and that they may be produced * at the hearing of the Appeal from the Decree at the Rolls, dismissing the bill.

Mr. Hart, for the Defendant, opposed the motion, as contrary to practice in the instance of an appeal; the party having had the benefit of the inspection before the original hearing; observing farther, that this bill was dismissed by the Master of the Rolls without hearing the Defendant; and was therefore out of Court.

The Lord CHANCELLOR [ELDON], held the Plaintiff entitled to this motion; and made the Order accordingly.

As to the cases in which a production of instruments will be ordered, see, ante, the note to the Anonymous case, 1 V. 29; note 1 to Lady Shaftesbury v. Arrowsmith, 4 V. 66; and the note to Darwin v. Clarke, 8 V. 158.

(1) See ante, Ex parte Mountfort, vol. xiv. 606; Ex parte Coming, ix. 115, and the note, 117.

(a) As to the right of one party to a discovery and inspection of title-deeds in the possession of the other party, Wigram, Discovery, (1st Am. ed.) 2-4; note (a) Shaftesbury v. Arrowsmith, 4 V. 66; note (a) Ford v. Peering, 1 V. 72; 2 Story, Eq. Jur. § 1491, 1492.

READ v. PHILIPS.

[1810, MARCH 23, 24.]

MEMBER of Parliament refusing to enter an appearance, the Court appointed a Clerk in Court to enter an appearance for him under Statute 45 Geo. III. c. 124,

s. 3.

Trader, having privilege of Parliament, by not paying money under an Order of Court commits an act of Bankruptcy by Statute 45 Geo. III. c. 124, [p. 437.]

THE Bill, filed in May 1809, prayed a foreclosure. The Defendant being a Member of Parliament, process had issued to a sequestration for want of appearance; and a motion was made, that the Defendant may appoint a Clerk in Court; and cause an appearance to be entered; and in case he shall not cause an appearance to be entered before the 9th of May, the Court may appoint a Clerk in Court for him. The motion was made on notice; and affidavit, that the Defendant has no goods and chattels, lands or tenements, by which the sequestration can be made available to enforce his appear

ance.

Mr. Hall, in support of the Motion.-If this application, under circumstances, not strictly within, but very near, the Act of Parliament (1), should not succeed, the effect will be a [* 437] total failure of justice. The title of the Act of Parliament

is very general; speaking of persons absconding to avoid process, or refusing to appear: but the enacting clause is not co-extensive. The first clause applies distinctly to the case of absconding, to avoid process but the second clause is confined to persons, taken upon Habeas Corpus, and refusing to enter an appearance, &c. The situation of this Defendant has analogy to that of a corporation; which is not liable to attachment. Orders have been frequently made before appearance; as in the case of injunction, proceeding upon the ground of contempt; with some distinction; according to the nature of the injunction; whether prohibitory or mandatory. Thus, an injunction has been obtained against an infant Peer for want of appearance; and a Clerk was assigned to appear and answer for him.

The Lord CHANCELLOR [ELDON] referred to a late Act of Parliament (2), as decisive upon this question, observing, that many provisions of that Act are not generally known one, for instance, by which if a Member of Parliament will not pay money under an Order of the Court, the non-payment is made an act of bankruptcy (3).

SEE the note to Downes v. Thomas, 7 V. 206.

(1) Stat. 5 Geo. II. c. 25.

(2) Statute 45 Geo. III. c. 124. The third section directs, with regard to a Defendant, having privilege of Parliament, that upon the return of process of Sequestration for not putting in an appearance the Court may appoint a Clerk in Court to enter an appearance for him.

(3) Sec. 7, repealed by Stat. 6 Geo. IV. c. 16, s. 1, and the case provided for by s. 11, 12.

BECKFORD v. WILDMAN.

[1810, MARCH 12, 21, 27.]

THE object of the Bill being to set aside Deeds, the Court will not on Motion go beyond the usual liberty to inspect, &c. and for production at the Hearing, by an Order to deposit them with the Master for safe custody, without a special case; establishing danger, that they may not be produced. Therefore, where most of the circumstances relied upon, viz. variations in two Deeds, appeared upon the Answer, the Order was limited to production at the Hearing (a).

THE object of the Bill in this case was to set aside two indentures of conveyance of the Quebec Plantation, in Jamaica, with the negroes, stock, &c. dated in June 1790 and November 1791; as obtained by a general Agent and Solicitor by misrepresentation as to the value and influence. The Defendant was his heir at law. A Motion was made by the Plaintiff, that these instruments, admitted by the answer to be in the Defendant's possession, may be deposited with the Master for safe custody; upon an affidavit, stating generally, that there were material variations between them.

The Lord CHANCELLOR [ELDON].-Where the object of the suit is to destroy the deed, the Plaintiff has a right to have it produced, and left in the hands of the Clerk in Court for the usual purposes of inspection, &c.; as from the right to have it set forth in the answer the consequence follows, that the instrument itself should be before the Court at the hearing: but I do not know an instance of the Court's taking possession of the deed in the interval upon mere suggestion in a Bill, filed with that view. The Court will not in this stage of the cause be active in taking the deed out of the hand of the party, whose deed it is, unless a special ground is made out; showing, that there is reason to believe, the deed will not be produced at the hearing. Upon the same principle the affidavit of the Solicitor, that there is a material difference between these instru

[* 439]

ments, cannot have the effect of establishing, that there is that special case, upon which in a late instance (1), at the last Seal, I made that Order.

The Motion was renewed upon farther affidavits; stating more particularly the variations between the instruments.

Mr. Richards, Sir Samuel Romilly, and Mr. Heald, in support of the Motion. It is very material, that these deeds should be produced at the hearing of the cause. They are not only not exact

(a) 2 Madd. Ch. Pr. 396, 397. As to the right of one party to a discovery and inspection of title-deeds in the possession of the other party, Wigram, Discovery, (1st Am. ed.) 2-4; note (a) Shaftesbury v. Arrowsmith, 4 V. 66; note (a) Ford v. Peering, 1 V. 72; 2 Story, Eq. Jur. § 1491, 1492.

(1) Lambert v. Chapman; see 1 Swanst. 125, The Princess of Wales v. The Earl of Liverpool; Jones v. Lewis, Tyler v. Drayton, 2 Sim. & Stu. 242, 309; Balch v. Symes, I Turn. 87.

duplicates, but the affidavits point out very important variations. The second deed in date was registered: the other was not; though it was sent to Jamaica for that purpose. The first deed recites, that the grantor, having taken into consideration the laborious attention of the agent, since his father's death, &c. proposed to convey to him a large tract of land in Jamaica, describing it as containing one thousand two hundred acres more or less; and the consideration expressed is five shillings. The second deed, having no recital, purports to be a conveyance in consideration of ten shillings, and divers other good and valuable considerations, &c. of one thousand seven hundred acres ; and in lieu of a covenant in the former deed, for completing the settlement of the plantation, by which the expense, to be advanced by the grantor, was limited to 5000l., there is a covenant, that the grantor shall continue the workmen, &c. without any limitation in extent; and there is also a more extensive covenant for warranty. These very material variations being * pointed out, furnishing the ground of most important observation, upon [* 440] which the Decree will probably depend, under such circum

stances the Court will require, that these instruments shall be deposited in the Master's office.

In a late case, Addison v. Walker, a Motion was made, that the draft of a title-deed might be deposited with the Master; on affidavit, that the settlement, prepared in pursuance of that draft, varied from it; the Plaintiff being entitled to the estate according to the draft; the Defendant according to the deed; and the object of the Bill being to reform the deed. The Defendant objecting, that the Plaintiff had no right beyond the liberty of inspecting and taking a copy of the draft, your Lordship considered the variations so important, that the Plaintiff was entitled at all events to be certain of the production of that draft at the hearing. Applying that authority to this case, there can be no more objection as to the deed of 1790 than as to the draft in that instance: this instrument, not registered, being merely an article of evidence in the cause to prove the fraud alleged.

Mr. Bell and Mr. Shadwell, for the Defendant.-Where the object of the Bill is to set aside the deed, this Order is not to be obtained of course. The instrument must be proved to be material to support the case made: secondly it must appear, that there is great reason to believe, that the instrument will not be forthcoming; as in the case of Addison v. Walker; where the husband had agreed to a draft of a settlement: afterwards, as appeared by the answer, that draft was altered: a new deed was framed; the Defendant, stating, that he had not the draft, represented the effect to be a limitation to the husband in fee: but upon the production of the instrument the limitation appeared to be to the survivor of the husband and wife in fee; a direct contradiction to the answer. It is [* 441] true, there are material variations between these instruments: the first deed reciting fully the services, which were the inducement to the conveyance; as to which the other deed is silent; secondly, as to the covenant by the grantor to lay out money in im