The Dorset County Express and Agricultural Gazette.
Dorchester, Dorset, England, 1859-05-31 00:00:00

COURT or CHANCERY. LINCOLN'S-INN,
MAT 28.

(Before (he LORD CHANCILLOR.)
rm. was Um first day of Trinity Term.

JOLLT V. AintITRMOI.

This appeal from a decree of the Master of the Rolls
wee argued last term, and stood over for judgment.
The faete were that Colonel Waugh purchased an
' reale called Branksea hdand, n the month of October,
IS5:1, and in the RAMC month mortgaged it twice over
for two mans of RlO,OOO and £llll,lOO. In the year 1856
diese two mortgagee were tranderre 1 to the *ilia,
who then made • further advance to Colonel Waugi,
raiding the whole debt to 00,000. At the MOM law,t
receivership deed was rseeuted, by which Waugh and
the plaintiff jointly and severally appointed a person
named Aplin receiver, to Wm the rente„ AK powers
of entry and distress. The deed further edieemsd that
Waugh attorned tenant to Aplin, ala rent of AKIO, ne.
to. certain pert of the premises, bring then in Wesibis,
occupation, with powers of entry and digress. It wee
then provided that after 14 days' note* it should be
lawful for the plaintiff to enter, in whisk ewe the
tenancy by attorninent was to determine; mid it wsa
declared that Aplin should apply the net rests that in
payment of interest, and secondly In payment, to the
extent of /2,000 per annum, to the truatees, ale were
to accumulate the same to form a sinking fund to pay
off the principal of the mortgair, sad lastly, to pa, Ow
surplus to Colonel Waugh. The deed also contained a
proviso that nothing therein contained should lemon ow
abridge the rights ant power" of the plaintiff under his
mortgage security or prevent Idle from realising it by
foreclosure, sale, or otherwise. On the 2adef Novem-
ber, 1855, Waugh executed& covering security on the
estate (subject to the plaintiff's mortgage) to the Lon-
don and Eastern Banking Corporation under which
£244.000 ultimately became due. On March 140867,
Waugh gave a bill of sale of fornithre and effect. le the
bank. On the 15th of April. 1867, Wengh was dedthed
bankrupt, and on the 28th of April, 1857, Aplin levied
by distress £3,500 for a year's rent, down to the 12th el
April. The Eastern Banking Corporation wee
ordered to be wound up on November 95, 1867, andi
was afterwards declared bankrupt. The sum
raised by the distress was paid to • joint
account of the plaintiff, the amimmes of Waugh,
and the liquidators of the bank, and the ques-
tion raised by this suit was, to whom thirmooey belonged.
The Master of the Rolls held that the relation of land-
lord and tenant was not created by the receivership
deed between Aplin and Waugh, and therefore that
Aplin bad no right to levy a distress upon the goods of
third persons (the ainignees of Waugh) which were
found upon the land. His Honour mode al decree
declaring that the £3,501 belonged to the assignees. It
appeared that the liquidators of the bank, who bad
been made defendants, disclaimed, but upon the haute
of the plaintiff's case they were desirous of raising tau
question whether their claim under the bill of sale was
not good as against the assignees. The Court, however..
refused to entertain the question in time present suit.
Both the plaintiff and the liquidators appealed from the
decree of the Master of the Rolls.
Mr. R. Palmer, Mr. Bern, and Mr. gash' (of the•
Common Law bar) appeared for the plaintiff; Mr. Sel-
wyn, Mr. Girard, and bin J. Brown (of the Common
law bar) for the assignees of Waugh ; Mr. Follett and
Mr. Tyndall for the bank liquidators; Mr. Goren and
Mr. Rodwell for the other parties.
, The Lord Chancellor this morning delivered judip
ment, and after going through the fact, of the ease in
I detail, said that he inferred from them that the intention
of the parties at the time of the execution of the
deed was to create a tenancy. The chief question,
therefore, for the consideration of the Court was
to ascertain whether there were any legal ob-
jection to the carrying out of sack intention. Now
if the attornment had been made by Colonel Waugh to
the plaintiff instead of to Aplin, without any ques-
tion • tenancy would have been created. It was quite
plain from the authorities that an attornment by a
mortgagor to • mortgagee would be sufficient to ens-
agitate a tenancy between them, and he (the Lord Chan-
cellor) was unable to distinguish why an attorninent to a
thirl party with the comment of the mortgagee, should
not be equally good If, therefore, a tenancy were
established the right to distrain followed as a matter of
course. The question as to whether the right to,
distrain were lost in cams where no reversion were
reserved, dal not arise in the present instance, inasmuch
an the remedy by distress was expressly given by the
deed. If, therefore, the tenancy here created had not
given the right to distrait). lie (the Lord Chancellor) was
of opinion that such remedy bail been conferred by as
deed. and that it was not a remedy in pose, but an-
nexed to the tenancy. The decree of the limner of the
Wills mind be varied by declaring that the plaintiff we,.
entitled to the sum of t 2,7110 and interest oat of the
amount levied, and his costs must be added to his
KC, urity. There was another appeal by the defendants
(the liquidators of the Eastern Banking Compeny'ron a
point of pleading, of no public interest. It was dismissed
with coats.

Solicitor for plaintiff', Mr. H. Hain ; eolieitors for
the liquidators of the London and Eastern Banking
Company. Messrs. Olieerson and Co. ; for the antignees.
of Colonel Waugh, Messrs. Linklater and Co.