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![handle is hein.slavery/ssactsengr0727 and id is 1 raw text is: EX PARTE PAYLER
hand. As to the merits I have no doubt. They are proved by the clearest evi-
dence.
March 16th. Mr. Richards and Mr. Ileald, for the Plaintiff, insisted, that the
mere loss of the instrument gives this [434] Court jurisdiction : the rule is so stated
by Lord Redesdale (Mitf. 105, 6) ; 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 [Sir Wim. Grant]. Your argument is in direct contradic-
tion to that of Lord Hardwicke ; who in the case of Walmsley v. Child (1 Ves. sen.
341) 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 ease 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,
PAYLER. Ex parte. [1810.1]
Order in Bankruptcy on Petition for sale of premises, subject to an equitable mort-
gage : 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.
[435] Mr. Montague suggested, that a special Order was unnecessary ; if the sale
might take place under the General Order (General Order in bankruptcy, 8th
March 1794) ; which had been held by Lord Erskine in Ex parte Donald (1) to extend
to equitable mortgages : but there is a considerable difference of opinion upon it.
Mr. Roupell, in support of the Petition, and Mr. Cooke (Amicus Curice) 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 ex-
tend 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.
(See Ex parte Mountfort, 14 Ves. 606. Ex parte Coming, 9 Ves. 115, and the note,
117.) 1 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.
(1) 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.
Ciiuitu v. BARCLAY. March 21st, 1810.
Plaintiff, appealing from a Decree, dismissing the Bill, entitled to the usual Order
for the production and inspection of deeds.
Mr. Richards, for the Plaintiff, moved, that deeds should be left with the Clerk
in Court for the usual purposes of inspection, &c. ; and that they may be pro-
[436]-duced 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.
1049
16 VES. JUtN. 4t34.](ViewImageLocal?handle=hein.slavery/ssactsengr0727&div=1&collection=&method=preview&ext=.png&size=3)