The Express.
London, England, 1851-06-27 00:00:00

EQUITY COURTET—YEsTEnDAy.

- Biro's Tile Lean Ciurcattos.
SALMON r. DlAN.—AttarAlta Or RiNT.—MORTOACIE.—
l'Lr t DINO.
This was an appeal from nn order made by the late Vice-
Chancellor of England under the following circumstances:
A Mr. Morris Davis let two farms in Wiltshire in 1825 to
the defendant Dean and his brother, at a certain rent for
each from year to year until the end of eight years, and at
an additional rent of 101. per acre for every acre of meadow
or pasture land that the tenants might plough or break up
during their tenancy. Mr. Davis afterwards mortgaged the
estate, and died. The mortgagee also died, having assigned
the mortgage. The assignee of the mortgage gave notice
to the tenants not to pay any rent to the mortgagor or his
representative, the plaintiff Salmon. The tenant mimed a
debt against the landlord, and after his death against Mr.
Salmon' who, finding that the tenant had for several
years back ploughed and broken up a great many acres
of the meadow and pasture land, and had thereby incurred
the penalty or additional rent of 401. an acre, proposed to
the tenant to set off the one debt against the other, which
the tenant refused to do, insisting that the landlord had by
the mortgage deprived himself of all right to any rent, and
that the mortgagee or his assignee was the landlord for all
purposes. The assignee of the mortgage being requested
by Mr. Salmon to prevent then tenant from continuing to
commit waste on the farms by the ploughing, dc., and to
mover the arrears of additional rent, refused to interfere,
whereupon Salmon filed his bill against the tenant to re-
strain hint from ploughing the land, and for an account of
the said arrears. The tenant put in a plea to the effect
above stated, namely, that the legal estate was in the
assignee of the mortgage, and that to him alone, in eqiiity
as wed as is law, the tenant was responsible. Tho N ice-
Chancellor held the plea to be good, and allowed it.
Mr. J. Parker, on Wednesday, and Mr. Roxburgh, yes,
teeilay, contended for Salmon, the appellant, that he was
entitled to the arrears of the additional or penal rents that
accrued prior to the assignment of the mortgage; that •
mortgagee, or his assignee, was not entitled to any rent or
other profit in the mortgaged property, except such as
accrued subsequent to the mortgage or assignment thereof;
and that the hill having stated the refusal of the mort-
gagee., or his assignee, to interpose to prevent the tenant
from committing waste, the mortgagor, or his representa-
tive, was entitled to the interference of this court, nut only
to restrain the waste, but also to compel an account of the
arrears of rent that accrued antecedently to the assignment
of the mortgage.
Mr. Role and Mr. W. W. Cooper, in support of the Vine-
Chancellor's order contended that the mortgagor having
parted with the legal estate in the property, had no title to sue
for rents; that though the mortgagee or his assignee was not
as twill in possession, hs was so virtually, by reason of the
notice given to the tenant and the tenant's acknowledgment
of his right ; and that the assignment of the mortgage gave
to the assignee all the arrears of rent and other profits ac-
cruing subsequently to the date of the mortgage.
The Lord Chancellor, without bearing Mr. Parker in
reply, said if he rightly understood the point in this ease, it
was clear to him that the plea was bad. Mr. Davis granted
leases of the farms from year to year for eight years at so
much rent for each, and the tenant continued in possession
fur several years after the termination of the eight years.
The law holds that if a tenant holds his farm after the expi-
ration of his lease and without any new agreement he
holds it on the same terms as tenant from year to
year. Hence, by the original agreement an additional
rent was fined for ploughing any of the meadow
or pasture lands. The tenant, it appeared, did
not make known to the landlord that he had nloughed any
land, or that be owed the additional rent. That rent be-
came a debt due to the landlord. Ile, it appeared, after the
accruing of that rent, mortgaged the estate, but he did not
by that conveyance pass these arrears to the mortgagee. Mr.
Radcliffe, the mortgagee, in 1844 assigned the mortgage,
and the question was whether the by-gone rents (the penal
relate that had accrued prior to the mortgage) passed to the
assignee by the transfer of the mortgage to him. How
could these antecedent rents pass, when even a conveyance
of the whets estate, without special words, would not pass
them ? It appeared that a debt became in some way due
to the tenant from the landlord. The latter, or his repre-
sentative, proposed to set off that debt against the
arrears of rent doe from the tenant, namely, the
401. an acre for ploughing the land. The tenant, by his
plea, denied the claim of the plaintiff to any rent,
alleging that such rent was due, if due at all, to Radcliffe
or his aasignee, by reason of the assignment of the mort-
gage. But the assignment did not give any right to the
antecedent rents. The notice given to the tenant not to
pay any mere rent to the mortgagor entitled him to the
accruing rents, but not to the bygone rents. Nu case was
produced, or could be produced showing that a transfer of
• mortgage carries with it antecedent rents. Radcliffe was
not entitled a point of law to those rents, and his assignee
acquired no right to them in law or equity by the transfer
to him of the mortgage. llow can an assignee of a mort-
gage acquire any legal or equitable title to antecedent
rents, when there were no words in the deed of assignment
conveying them to him ? The plea was bad, and ought to
have been over-ruled.
The Vice-Chancellor. order was accordingly discharged.
Imam asea-Ciumumes Lamm Dacca.
Artonsinr-Oiasimat e. RIMMINOMAM AND OXFORD
RAILWAY CO AAAAA .—INJUNCTIoN.
Mr. Bedell sad Mr. O. L. Hemel' supported a demurrer
of the dekudaats to an information died at the relation of
certain inhabitants of Stratford-on-Avon. The object of
the information was to obtain an injunction, reatrainang the
defendants frees constructing their railway without making
a divoqns limo to Stratford-on-Anna, seenrdint to the
tbm
towed:.
waa(os thewi. infmormatioetand
mallegedaie )fiirthreofewldhiocuht
wen pintittod to obtain their set of parliament.
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the were bonsai to openstrust the whole of the
lia•Lpirdenleg) dis dinging
_pardon of it, and to open
du wino Utseenedy ; led Ise an injunction restrain-
ing them Irma 'Nadas any p
pert of the line without pro-
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oning with dm diverging Mae, or giving the proper no-
de. le the Ismisemen ea that line. In suport of the de.
miner it was esnlombod that this was an attempt, under
the guise of solid., ter ea it*setios on public grounds,
to .keee de paranamme et a preleastei agreement or an-
=risk private individuals, whirls they had not
i ray title to eaten*, sail which win wholly an-
Mr. @greeted by the facts of the ere.
Mr. Zama and Mr, Denial, for the rentals, contended
that, assordiag to the doggies laid dawn by Lard Eldon in
Ideltamees r. Giamsesmshir• Cosa Company" (1
Myles mg Eason, 164), prejemers et midarteldmm a this
king esnimested with the palls NMI might be=ated
fears nary* late Mlles et • pertain rely Moir as
the Ada if the whole of whin being girded am aim
they eatugs.btaisoi eztrasermary powers sail phlegm them ths
They leo Mted the '. Ores 9. IseMes Co...ties laßirou " (115:and MI14), sad
" Cella t ileas "(1 sad 461).
The The-Chemialler elissessit for a MIMI-
tr7. 20.0ftill had has. mg dew is adapting the passe&
imp et the sem* to es Awed acuminates Or sessiety.
The imilommemes weslicra aim a decree sr order simi-
lar to some mime gives by Mr. Mom, in his
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ewes things. First, a set of declara-
tion i Om • portivaliaz injunction; and then a general ni-
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lar ma c=l. relief. As to the Weasels' prayed, his
Railler partirealsely to be eademiood as not
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