besides foreclosure were made against the mortgagor (p); nor where the mortgagor has not appeared (q), but if judgment is obtained by default against a tenant of the mortgagor, the proceedings may be set aside to enable the mortgagor to appear and defend as landlord and claim relief under the statute (r); nor where the mortgagee is in possession or has attempted to exercise his power of sale (8). But it does apply even though a second mortgagee gave a first mortgagee notice not to deliver up the deeds to the mortgagor (t).

The mortgagor must pay to the mortgagee, or into Terms. Court, the principal, interest, and all costs expended in any suit on such mortgage (u), all such costs being taxed as between party and party (x); but not interest from the date of the application until reconveyance, if the delay arise through the mortgagee's default (y), nor the cost of the mortgage deed (z), nor any collateral debt (a). In the Courts of Equity the "costs" which a mortgagor would be compelled to pay upon redeeming included much

more.

The application may be made by anyone who has a By whom clear right to redeem (b), as, for instance, a purchaser of made. application the equity of redemption (b), but not by a tenant of the mortgagor (c), nor by the trustee in bankruptcy of the

Where made and when.

Judicature
Act, 1873.

mortgagor without the bankrupt's consent (d). If the mortgagor has assigned his equity of redemption, he can still take advantage of the statute if proceeded against under the covenants (e).

The application may be made either to the Court or in Chambers (f), but must be made before the mortgagee is entitled to issue execution (g).

The former jurisdiction in Equity was not affected by this Act (h), which merely enabled the Courts of Law to give relief to a somewhat similar, but lesser (i), extent than that which Equity had always given, the second section referring to Courts of Equity being merely incidental and unnecessary. Now since the passing of the Judicature Act, 1873 (k), if a defendant claims to be entitled to relief upon any equitable ground, the Courts of Law or Equity will give such ground of relief the same effect as the Court of Chancery would have given in any proceeding instituted for the purpose in that Court before the Act (1).

The effect of this is to render the above statute (m) almost inoperative, and to enable a mortgagor to plead by way of equitable defence to the action of ejectment any matter which he might have made use of as a ground for asking for relief, had he been proceeding formerly in Equity (n). The Courts of Law will then give the same relief as the Courts of Equity formerly could have done;

but the nature of that relief must, of course, depend upon the circumstances of each particular case.

The Courts have also had given to them by the same Act (o) a discretionary power to stay proceedings, either generally, or so far as is necessary for the purpose of justice, in any cause or matter before them, on the application of any person who could formerly have applied or who be entitled to enforce, by attachment or otherwise, any judgment, decree, rule, or order contrary to which all or any of the proceedings in such cause or matter have been taken (0).

may

The application must be made to that Division of the High Court in which the action sought to be stayed is pending, though in practice it is sometimes made at Chambers (p).

The object of this enactment is to give the Courts of Law power to stay actions improperly brought, or the prosecution of which Equity would have restrained by injunction (q), but it does not give them power to restrain an action of ejectment merely on account of the existence of a suit for administration in Chancery (r).

The old rule that Equity could restrain proceedings at Common Law is now abolished, as judges of one Division can no longer restrain actions pending in another Division (s).

If, then, a foreclosure action is pending in Equity, and an action of ejectment at Common Law, application can be made in either Division to stay the proceedings in the action in that division, or the existence of the foreclosure

Power to stay proceedings.

action may be relied upon by way of equitable defence to the Common Law action; or either action may be transferred to the other Division, when the two actions can be consolidated or tried together (t).

(t) Smith v. Whichcord, 24 W. R. 900.

CHAPTER XIII.

BY TENANT BY ELEGIT AND PURCHASER UNDER FI. FA.

THE sheriff can, under a writ of elegit, seize and deliver to a judgment creditor all the lands, tenements, and hereditaments of any tenure of which the debtor or any person in trust for him is seised or possessed, or over which he has any disposing power which he might without the assent of any other person exercise for his own benefit (a) at the time the writ is executed (b); until the Act 1 & 2 Vict. c. 110, only a moiety of the debtor's lands could be seized under a writ of elegit (c). The sheriff cannot seize lands mortgaged by the debtor (d), for a mortgagee is not a trustee for the mortgagor within the meaning of 1 & 2 Vict. c. 110 (e); or lands of which some person is seized in trust for the debtor and another person (f), as the Act only applies when a trustee is seized for the debtor solely; or an estate in remainder (g).

The chattel interests in land, that is, leaseholds or Leaseholds. terms of years, of the debtor may still be seized under a

(a) 1 & 2 Vict. c. 110, s. 11; Harris v. Davison, 15 Sim. 128.

(b) 27 & 28 Vict. c. 112, s. 1. (c) Doe v. Parry, 13 M. & W. 356; Sherwood v. Clark, 15 M. & W. 764; 13 Edw. I. c. 18.

(d) Re Newcastle, 8 Eq. 700; Anglo-Italian Bank v. Davies, 9

W.Y.E.

Ch. D. 275.
(e) S. 11.

(f) Doe v. Greenhill, 4 B. & Ald. 684; Harris v. Pugh, 4 Bing. 335.

(g) Re South, 9 Ch. 369; Hatton v. Haywood, 9 Ch. 229.

L