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![handle is hein.slavery/ssactsengr0886 and id is 1 raw text is: LEEM1NG V. SHERRATT
are involved in the absurdity of supposing that a mortgagee in possession, or a
consignee receiving produce and applying it in reduction of the mortgage debt, does
not pro tanto discharge the mortgage-a proposition so revolting to common-sense that
there would be difficulty in believing that such could be the state of the law. Another
observation is that, when there was so large a sum as £14,000 or £15,000 payable in
respect of the slave compensation money, so far were the Plaintiffs from being advised
that they ought to require the production of the grosses that Mr. Willink was allowed
to receive the money without any inquiry being made respecting the grosses. So,
with regard to all the other mortgages, though the Plaintiffs have been privy to the
fact that Mr. Willink had been dealing with and satisfying the other mortgages, and
though they are parties to an arrangement founded thereon, they do not appear to
have inquired whether the grosses [13] were in his possession until 1838. Another
circumstance which, in a moral point of view, might justify important conclusions is
that, if the law be as the Plaintiffs suppose, Mr. Willink has been, throughout
the whole transaction, himself paying off prior mortgages, without seeing that the
grosses were in the possession of those to whom he paid them. I must, therefore,
ascribe an extraordinary degree of ignorance to the advisers of both parties, if the law
be such as the Plaintiffs' argument supposes.
[His Honor then adverted to the correspondence in 1838 on the subject of the
grosses (supra, p. 2).]
There are in this case facts appearing which would, I think, enable me either to
continue or dissolve the ihjunction without violating any rule of this Court. It
is impossible to say that Mr. Willink has not, in his answer, admitted facts which
leave a case for inquiry; and it is impossible to say that the Plaintiffs have not
so dealt with this transaction as to justify me in saying I cannot place much
reliance-not on their statements, for on their statements I place the most implicit
reliance-but on their supposition of what the law of Demerara is on the point in
question.
I have looked into the authorities so far as I have been able, but they are very
far from being satisfactory.
The course which I think will meet the justice of the case is this: if the Defendant
will consent to give such security as the Master shall approve of, to account for what
he shall recover, as the Court may hereafter direct, in case it should be decided that
the Plaintiffs are damnified by the payment which they resist by their bill, I will
dissolve the injunction. If not, I will continue the injunction upon the Plaintiffs
paying the money into Court, and consenting to an immediate reference to in-[14]-
quire whether there are any and what grosses existing, and, if they are not in the
Defendant's possession, for what purpose it is that the Court in Demerara requires
the indemnity. If both parties decline these terms the injunction must be dissolved.
Luceraft v. Hite. L. C. 19th December 1785. Time for Defendant's redeeming
the mortgaged premises enlarged, &c. ; and, it being alleged that some of the title-
deeds and writings have been lost, the Master to inquire whether any of such title-
deeds and writings are lost, or are not in the power of the Plaintiffs, or either of
them, to produce; in which case the Master to settle how and in what manner the
Plaintiffs can make the Defendant an effectual title to the said mortgaged premises
by way of reconveyance, or settle what indemnity will be necessary to be made to
the Defendant in respect to the loss or non-production of such deeds and writings,
and for the better discovery, &c. Reg. Lib. B. 1785, fo. 203.
[14] LEEmING v. SHERRATT. March 23, April 18, 1842.
[S. C. 11 L. J. Ch. 423; 6 Jur. 663. See In re Barnshaw's Trusts, 1867,
15 W. R. 379.]
The testator gave certain pecuniary legacies to his daughters respectively, one-half
to be invested and secured from the control of any husband, the interest to be paid
to them in the meantime, and the principal disposed of as they should direct to their
2 HARE, 13.](ViewImageLocal?handle=hein.slavery/ssactsengr0886&div=1&collection=&method=preview&ext=.png&size=3)