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No. 14.

- Humphreys v. Harrison, 1 Jacob & Walker, 582.— Notes.

Underwood is always considered as a crop.

The defendant must not cut it out of the usual course; but if he cuts it in the usual course, he cannot be restrained any more than from cutting a crop of corn. It would be the same thing as turning him out of possession. But you may take an injunction to restrain him from cutting it contrary to the usual course of husbandry.

ENGLISH NOTES. The rule is supported by Hippesley v. Spencer (1820), 5 Madd. 422, and King v. Smith (1843), 2 Hare, 239.

A mortgagor in possession has no right as against his mortgagee to remove fixtures, otherwise than in the ordinary course of his trade, and as a legitimate act of that trade. Huddersfield Banking Co. v. Lister & Co. (C. A. 1895), 1895, 2 Ch. 273, 64 L. J. Ch. 523, 72 L. T. 703, 43 W. R. 567. The question in that case arose in the winding-up of the defendant company.

After a decree for an account under a bill for foreclosure, the mortgagor will be enjoined not to cut timber. Goodman v. Kine (1845), 8 Beav. 379. And the order was made without a prayer for an injunction being contained in the bill. s. c. Wright v. Atkins (1813), 1 Ves. & Bea. 313, 314, 13 R. R. 204, 205 n.


The doctrine in question is sustained by the following authorities : Thompson v. Lynam, 1 Delaware Chancery, 64; Bank of Chenango v. Cox, 11 C. E. Green (New Jersey Equity), 452; Robinson v. Preswick, 3 Edwards Chan.(N. Y.), 246; State Savings Bank v. Kercheval, 65 Missouri, 682; 27 Am. Rep. 310; Ensign v. Colburn, 11 Paige (New York Chancery), 503 ; Gray v. Baldwin, 8 Blackford (Indiana), 164; Maryland v. Northern C. R. Co., 18 Maryland, 193; Nelson v. Pinegar, 30 Minois, 473; High on Injunctions, sects. 480, 693, 694, citing the principal case; Youle v. Richards, 1 New Jersey. Equity, 534; 23 Am. Dec. 722; Coker v. Whitlock, 54 Alabama, 180; Harris v. Bannon, 78 Kentucky, 568; Dorr v. Dudderar, 88 Illinois, 107; Verner v. Betz, 46 New Jersey Equity, 256 ; 19 Am. St. Rep. 387; Thomas on Mortgages, sect. 684; Kerr on Injunctions, p. 262, citing the principal case; Brady v. Waldron, 2 Johnson Chancery (New York), 148; 3 Pomeroy on Equity Jurisprudence, p. 2077, citing the principal case; 2 Beach on Injunctions, sect. 1173, citing the principal case ; Hastings v. Perry, 20 Vermont, 272; Scott v. Wharton, 2 Henning & Munford (Virginia), 25; Buckout v. Swif, 27 California, 433; 87 Am. Dec. 90.

As a general rule equity will not interfere to restrain a mere diminution of the security, nor unless the security is endangered by the mortgagor's acts.

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1 Jones on Mortgages, sect. 684, citing the principal case; Coker v. Whitlock, 54 Alabama, 180; Buckout v. Swift, 27 California, 433; 87 Am. Dec. 90; Harris v. Bannon, 78 Kentucky, 568; Van Wyck v. Alliger, 6 Barbour (New York Supreme Ct.), 507; Moriarty v. Ashworth, 43 Minnesota, 1; 19 Am. St. Rep. 203. In the last case the Court observe: “While some authority may be found in support of the claim of the appellant that a mortgagee is entitled to an injunction restraining any acts of waste by a mortgagor in possession which may diminish the value of the mortgaged property, yet the great weight of authority, both in England and this country, is to the effect that equity will not interfere in such cases unless the acts complained of are such as may render the security insufficient for the satisfaction of the debt, or of doubtful sufficiency. King v. Smith, 2 Hare, 239; Humphreys v. Harrison, 1 Jacob & W. 581; Hippesley v. Spencer, 5 Madd. 422; Harper v. Aplin, 54 L. T., N. S., 383 ; Coker v. Whitlock, 54 Alabama, 180; Scott v. Wharlon, 2 Hen. & M. (Va.) 25; Buckout v. Swift, 27 California, 433 ; 87 Am. Dec. 90; Vanderslice v. Knapp, 20 Kansas, 647: Harris v. Bannon, 78 Kentucky, 568; Van Wyck v. Alliger, 6 Barb. (N. Y.) 507, 511; Snell's Equity, 304; 1 Watson's Comp. Eq. 746; 2 Story's Eq. Jur. sec. 915; High on Injunctions, 2nd ed., secs. 693, 691; Bispham's Equity, 4th ed., sec. 433; 1 Jones on Mortgages, 4th ed., sec. 684; 1 Lead. Cas. Eq., 4th Am. ed., 992, 1021; Kerr on Injunctions, 2nd Am. ed., 84. In numerous other cases we find that the Courts, in stating the grounds upon which equity will interfere, seem to regard it as a necessary condition that the sufficiency of the security be threatened. See Cooper v. Davis, 15 Connecticut, 556 ; Gray 5. Baldwin, 8 Blackford (Ind.), 164; Hastings v. Perry, 20 Vermont, 272; Fairbank v. Cudworth, 33 Wisconsin, 358. From the proposition which we have stated as an established principle of equity, it is not to be understood that equity will not interfere unless the acts threatened are such as may reduce the value of the mortgaged property below the amount of the debt. On the contrary, as was considered in King v. Smith, 2 Hare, 239, we think that the mortgagee is entitled to be protected from acts of waste which would so far impair the value of the property as to render the security of doubtful sufficiency. He is entitled to have the mortgaged property preserved as sufficient security for the payment of his debt, and it is not enough that its value may be barely equal to the debt."

In Fairbank v. Cudworth, 33 Wisconsin, 358, it was held, that where the security was inadequate or scanty, the injunction should issue although the mortgagor was solvent. The Court said : “No good reason is perceived why the pecuniary condition of the mortgagor should be a consideration of any importance. The land is the primary fund for the payment of the debt secured by the mortgage. The mortgagee may resort in the first instance to the land for payment, and it would be inequitable to permit the mortgagor wantonly to destroy or impair the security, whether he be solvent or insol. vent.” Distinguishing Robinson v. Russell, 24 California, 467, where the mischief threatened was the removal of fruit and growing nursery stock, and was not irreparable, and an averment of insolvency was therefore held essential.

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No. 1. — Lyell v. Kennedy, 8 App. Cas. 217. — Rule.


No. 1. — LYELL v. KENNEDY.

(H. L. 1883.)


(c. A. 1885.)


In an action for the recovery of land, as in other actions, the plaintiff is entitled to discovery as to all matters relevant to his own and not to the defendant's case.

But a party is not bound to answer interrogatories which are merely directed to the discovery of the evidence by which he (the other party) intends to prove his case.

Lyell v. Kennedy.
8 App. Cas. 217-234 (s. c. 52 L. J. Ch. 385 ; 48 L. T. 585; 31 W. R. 618).

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Discorery. - Interrogatories. -- Affidavit of Documents. - Ejectment. — [217]

Action for the Recovery of Land. In an action for the recovery of land the plaintiff is entitled to discovery as to all inatters relevant to his own and not to the defendant's case.

In an action for the recovery of land the plaintiff claimed as assignee of coheiresses of a deceased intestate owuer of the land, and the defendant relied on his possession and also set up the Statute of Limitations :

Held, reversing the decision of the Court of Appeal, that the plaintiff was entitled to interrogate the defendaut as to matters relevant to the pedigree and heirship of his assignors and as to alleged admissions by the defendant that his possessiou of the land was as trustee for the intestate and her heirs, even though the plaintiff might have other means of proving the facts inquired after; and that the defendant must answer the interrogatories in substance, subject to any privilege against particular discovery which he might be entitled to claim.

Held, also that the defendant must file a proper affidavit of documents.

Appeal from two orders of the Court of Appeal. 20 Ch. D. 484. (51 L. J. Ch. 439.)



No. 1. — Lyell v. Kennedy, 8 App. Cas. 217, 218.

The action was brought in the Chancery division to recover hereditaments near Manchester and mesne profits. The statement of claim alleged that the plaintiff was assignee by deed of co-heiresses of Ann Duncan, deceased intestate, the owner in fee simple in possession of the hereditaments, and that the defendant had admitted that his possession was only as agent, receiver, and trustee for Ann Duncan and her heirs. The state ment of defence did not admit the allegations in the claim, and alleged that the defendant had been at the commencement of the action for upwards of twelve years continuously in possession. The plaintiff administered twenty-one interrogatories which, with the documents therein referred to, occupied more than sixty printed pages of the appendix, and of which nineteen related to Ann

Duncan's possession and the alleged admissions by the [* 218] defendant of his * possession as agent and trustee for Ann

Duncan and her heirs. The 20th and 21st related to the pedigree and descent of the co-heiresses. The defendant partly answered the interrogatories relating to Ann Duncan's possession, and submitted that he was not bound to answer the rest, or any of the others; and as to the 20th and 21st interrogatories alleged that in the course and for the purpose of defending his title in this action he had caused to be made by and through his solicitors various searches and inquiries, being the searches and inquiries referred to and inquired after in the interrogatories, and that the results were in the nature of reports made to him by his confidential agents; and that the books, records, and other places in which and the persons from whom such searches and inquiries were made were equally accessible to the plaintiff as to him; and that the interrogatories were not put bonâ fide for the purposes of this action. In answer to the usual summons the defendant made an affidavit of documents in which he objected to produce the documents in the second part of the first schedule on the ground that they related solely to the defence of his title, and were cominunications between himself and his solicitors and his counsel in reference to the defence of his title and prepared or procured for the purposes and in contemplation of such defence. The schedule of those documents comprised (inter alia) counterpart agreements for letting a mill on the land in question.

The plaintiff having taken out a summons for a full and sufficient affidavit in answer to each of the interrogatories, and also a sum

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mons for production of the documents in the second part of the first schedule, Bacon, V. C., dismissed both summonses with costs. On appeal the Court of Appeal (JESSEL, M. R., BRETT, and HOLKER, L. JJ.) affirmed the order of BACON, V. C., on each summons and dismissed the appeals with costs. 20 Ch. D. 484, 51 L. J. Ch. 439.

Feb. 26, 27. MacClymont (Blennerhassett with him), for the appellant:

The decision of the Court of Appeal was based upon Horton v. Bott, 2 H. & N. 249, 26 L. J. Ex. 267, which decided only that a plaintiff in ejectment cannot interrogate a [* 219] defendant as to what the defendant's title is, and also upon the notion that before the Judicature Act a plaintiff in ejectment at law could not maintain a bill of discovery in equity in aid of the ejectment, and that in no case had such a bill been allowed. Subsequent research has brought to light fifty-seven cases in the time of Queen Elizabeth (referred to in the Calendars of Chancery proceedings), and a series of cases from the time of Lord NOTTINGHAM, in which bills of discovery were filed in equity in aid of ejectments at law. In some of these cases discovery was decreed, in others it was refused for reasons special to those cases, the general right to discovery being assumed; in none was it held or even argued that such bills would not lie, though they were resisted on every possible ground. Of these cases the most important are — Attorney-General v. Du Plessis, Parker, 144, 164, 1 Bro. P. C. 419, in which Lord HARDWICKE said that the right of the Crown to discovery was not a prerogative right, but the same as the right of any subject. Rumbold v. Forteath, 3 K. & J. 44, 748; Brown v. Wales, L. R., 15 Eq. 146, 42 J. L. Ch. 45; Drake v. Drake, 3 Hare, 523, 13 L. J. Ch. 406; Bennett v. Glossop, 3 Hare, 578; Chadwick v. Broadwood, 3 Beav. 308, 10 L. J. Ch. 242; Hylton v. Morgan, 6 Ves. 293, 295; Butterworth v. Bailey, 15 Ves. 358; Crow v. Tyrell, 2 Madd. 397, 408; Jones V. Jones, 3 Mer. 165, 166, 170; Wright v. Plumptre, 3 Madd. 481, 486; Pennington v. Beechey, 2 S. & S. 282; Devenreux v. Devenreux, Ca. temp. Finch (Nelson), 324; Grey v. Grey, Ca. temp. Finch (Nelson), 444. The books of practice contain common forms of interrogatories in aid of actions of ejectment; e. 9. Cole, Eject. and 2 Van Heythuyson's Eq. Draftsman; Spence's Eq. Jur. ; Hubback on Succession; and see Wigram, Disc., and

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