this should not be made ?] It is submitted that they have not. The order is a perfectly valid order.

Montague Smith and Raymond, in support of the rule.-*This

*736] is not an order which the court, in the exercise of a sound dis

cretion, would think it right to make. [WILLIAMS, J.-It is obvious that a very large discretion must be given to the judge under s. 78.] All the circumstances are to be taken into consideration; and the judge, or the court, is to exercise the same sort of discretion which a court of equity would exercise. This is not the case of a mere pledge: it is a mortgage by a written agreement, by which Croft deposits the lease for a present advance of 150l., with a power of sale in the event of any of the conditions upon which the deposit was made being broken. [JERVIS, C. J.-Under the old system, might there not have been a special finding, that the defendants were guilty of the detention, with an award of damages for the detention, the jury being by consent discharged from finding the value of the chattel? And would not the defendant in that case have waived the option? In that case the judgment simply would have been to deliver up the chattel, and pay the damages.] If the value had been assessed, the defendants would have been entitled to credit for the 150l. [MAULE, J.-You insist, that, notwithstanding the tender and refusal, the defendants are still entitled to hold the lease as a security?] In equity, clearly. [WILLIAMS, J.-If you are right, the plaintiff ought not to have succeeded in the action.] The existence of the debt would be an equitable answer to the value, though the action might well lie for damages for the detention after the tender. The 78th section of the 17 & 18 Vict. c. 125, gives the court the power of compelling right to be done. The defendants are in a position to go into equity to convert their equitable into a legal mortgage. In Whitworth v. Gaugain, 1 Phill. Ch. Cas. 728, it was held, that, notwithstanding the statute 1 & 2 Vict. c. 110, which gives to a judgment the effect of an equitable charge upon the land of the debtor, an equitable mortgagee retains his right in *equity to enforce his security, against *737] the title of a creditor under a subsequent judgment, although the latter may have acquired the legal seisin and possession of the land under an elegit, without notice of the mortgage. "By the equitable mortgage," said the Lord Chancellor (Lord Cottenham), "the plaintiffs acquired a special lien upon the property: they might, through the medium of this court, have compelled a sale of it for the payment of their debt, or they might, by virtue of the engagement for that purpose, have obliged their mortgagor to convert the equitable into a legal mortgage. The plaintiffs had thus an interest in the premises to the amount of their debt, and just as strong an interest, to use the words of Lord Chief Baron Richards, in Casberd v. The Attorney-General, 6 Price, 411, as if a mortgage had been executed." What is the effect of a tender, in equity? [WILLIAMS, J.-Had the power of sale come

into existence at the time of the tender?] The fourteen days' notice provided by the agreement(a) had been given, but the tender was made before the fourteen days expired. [MAULE, J.-Did not the defendants, by consenting that the jury should be discharged from assessing the value, implicitly consent that such an execution as could issue should issue upon the verdict?] The defendants never intended to give up their lien for the 150l. It is a charge upon the estate. In Grugeon v. Gerrard, 4 Y. & C. (Exch.) 119,† Maule, J., says: "A mortgagee is not bound to accept the mortgage-money when tendered, unless reasonable notice has been given of the intention to pay him off; and, even after notice, he may refuse to receive the sum tendered, and dispute the account; and the only remedy of the mortgagor will at last be, to file a bill for redemption. If, indeed, on such a bill, it should appear that the mortgagor, after giving to the *mortgagee six months' notice of his intention to pay off the mortgage, had ac[*738 tually tendered to him the full amount of principal, interest, and costs, and that the mortgagee had obstinately refused to receive it, and so had rendered a suit necessary, the court would probably fix the costs of the suit on the mortgagee. Still, however, he must, until actually paid off, retain the character of mortgagee, with all the rights incident to it." [CRESSWELL, J.-As far as concerns the jurisdiction under section 78, the judge would have nothing to do with the equity, if the jury had found the value. JERVIS, C. J.-Ought the judge to have told the jury, that, in assessing the value of the lease, they might take into their consideration the equitable charge? If that is so, the order is wrong.] The effect of a tender in equity is much more reasonable than the rule of law. The court will in this case, it is submitted, act upon the principle laid down by Lord Abinger, in Phillips v. Clagett, 11 M. & W. 84, 91, It has been the practice of courts of law (especially in modern times), where they see that justice requires the interference of a court of equity, and that a court of equity would interfere,—in every such case to save the parties the expense of proceeding to a court of equity, by giving them the aid of the equitable jurisdiction of a court of common law, to enable them to effect the same purpose." It would be manifestly inequitable and unjust to compel the defendants to give up the lease in this case without getting back their advance, or being driven for redress to a court of equity.

JERVIS, C. J.-It seems to me that this rule ought to be made absolute. The view I take of the case renders it unnecessary for me to give any opinion either upon the construction of the 78th section of the statute or upon the extent of the equitable jurisdiction of the court. The postea shows that some agreement was *come to at the trial. [*739 I regret very much that the counsel cannot agree as to what that agreement was: and the parties have not thought fit to instruct

(a) Ante, p. 97.

the court on the matter by affidavit. Being, therefore, wholly unable to see whether the order is right or wrong, I think it ought to be set aside.

MAULE, J.-I also think this rule should be made absolute. I do not quite enter into the difficulties felt by my Lord Chief Justice. I think we can sufficiently see upon the instrument before us what was the agreement between the parties. They agreed that the jury should conduct themselves in the matter stated in the postea, viz., that they should find the amount of damages sustained by reason of the detention of the lease, and should be discharged from finding the value of the lease itself,-subject to the condition that neither party should take advantage of the want of an assessment of the value of the chattel for which the action is brought, so as to prevent the plaintiff's obtaining the damages according to the finding of the jury. It is not a verdict properly found under the direction of the judge. That being so, if I were called upon to decide positively whether such an order as that now under consideration could be made under the 78th section of the 17 & 18 Vict. c. 125, I should be disposed to say that the case did not fall within that provision; because it seems to me that the 78th section was intended to apply to a regular and legal finding. Now, the regular and legal finding here would be, a finding of so much for the value of the lease, and so much by way of damages for its detention. Before the passing of the Common Law Procedure Act, in detinue the defendant had the option to retain possession of the chattel, paying the sum at which the jury thought proper to assess its value. That was *740] felt to operate hardship on the plaintiff in many cases. The plaintiff might not be willing to lose the article: it might have a value considerably larger in his estimation than that fixed by the jury. To prevent that inconvenience and hardship, the statute provides, not that the option shall in all cases be taken away, but "that the court or a judge shall have power, if they or he see fit so to do, upon the application of the plaintiff in any action for the detention of any chattel, to order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel on paying the value assessed,"-only in certain cases,-intrusting it to the discretion of the court or a judge to determine according to the circumstances of each case whether or not it is fit to order that the chattel itself shall be restored. The effect, therefore, of the 78th section, is, to enable the court or the judge to make such an order where it would be unjust to allow the defendant to have the option, and where he can, and in the opinion of the court or judge ought to, restore the chattel in specie. That is a provision entirely dealing with a case of option before the statute. If the value of the chattel is not assessed by the jury, the course provided by the 78th section is not applicable. The agreement entered on the postea moans

no more than this, that the absence of an assessment of value shall not have the effect of preventing the verdict from taking effect so far as it legally can take effect. The jurisdiction of the judge under s. 78 being solely applicable to a case where the value is found, I think such an order as that section contemplates cannot be made where such value has not been found. But, supposing the order could have any operation at all, it seems to me that this is not a case in which the discretion should have been exercised by the judge. Where parties have come to an agreement such as this, the court may very properly say, -as has been said in cases *where a certificate for costs has been asked [*741 for when a verdict has been taken by consent,-"You have agreed that a verdict shall be entered in a particular way: we cannot make a new agreement for you." The parties have agreed to stand upon the record as they have framed it. That being so, I do not think it at all a proper thing that the court or a judge should be called upon to make an order embodying terms not found in the agreement, or that they ought to do so even if it were competent to them to do it. For these reasons, I concur with the Lord Chief Justice in thinking that this rule should be made absolute.

CRESSWELL, J.-My Lord and my two learned Brothers being, as I understand, agreed that the order made by me in this case should be rescinded, the rule will of course be made absolute. I am glad that they have arrived at this conclusion, as it relieves me from entering upon a discussion of the agreement entered into by the counsel at the trial, and of the conclusions which I drew from it.

WILLIAMS, J.-I also am of opinion that the rule to set aside my Brother Cresswell's order should be made absolute. I regret very much that we cannot put an end to the litigation between these parties, and make the plaintiff pay the 150l., which he ought in justice to pay. The order clearly must be set aside, as there were no materials before the learned judge to warrant it. It is unnecessary to say whether or not the jury might, in estimating the value of the lease to the plaintiff, have taken into their consideration the equitable charge upon it, though I incline to think that in good sense and justice they ought to be able to do so. The only question for us to consider, is, whether my Brother Cresswell had power under the statute to make the *order [*742 he did. I think he clearly had none, because the consent of the parties to discharge the jury from finding the value,-the parties overlooking the consequences to which such consent would lead,-makes the record utterly unmanageable. It is impossible, that, upon the finding as it now stands, such a judgment can be pronounced, or such an execution issue, as could issue at common law. The only consideration that could at all justify such an order as this, would be, that the absolute consent given at Nisi Prius precludes the defendants from objecting to it. But I cannot find that there was any such intention.

The 78th section was intended to enable the court or a judge to deprive the defendant of the option he had before, of retaining the chattel, an option which in this case did not exist. We can under the circumstances only set aside the order. Rule absolute.(a)

(a) A second action was brought to recover the deed, and is now pending.

*743]

*In re BIRCH. Jan. 31.

To entitle a party to a prohibition to restrain commissioners under a local improvement act from proceeding to enforce a penalty for an offence against the act, he must distinctly show that they are acting without jurisdiction: it is not enough to show that it is doubtful, upon the act of parliament, whether their jurisdiction extends to the place where the alleged offence was committed. "Public place," meaning of.

NEAR to the town of Scarborough, in Yorkshire, is a piece of land, called the South Sands, which is, and which immemorially has been, part of the sea shore, and which is, and immemorially has been, covered by the tide of the North Sea.

On the 14th of October last, after the tide had receded therefrom, Thomas Birch, who was a dealer in shells, placed on a part of the said South Sands, that is to say, on a part thereof which is, and immemorially has been, betwixt the ordinary flux and reflux of the tide, a small truck or stand, with a few shells and pebbles thereon for sale. For having so done, he was shortly afterwards served with the following

summons:

"Improvement Commissioners' Office, Scarborough, "October 21st, 1854.

"Act 45 G. 3, c. xciv. Sess. 1805.

"I hereby give you notice that a meeting of the improvement commissioners will be held in the Savings Bank, on Tuesday, the 24th instant, at 10 o'clock in the morning, when a charge will be brought against you for violating the conditions set forth in the Scarborough improvement act and by-laws.

Mr. Thomas Birch."

"By order. J. S. WHITLOCK,
"Clerk and surveyor.

In obedience to this summons, Birch attended at the time and place appointed, for the purpose of making his defence against the above charge, and served upon the clerk of the said commissioners the following notice:

*744]

"To the commissioners for the better paving, *cleansing, lighting, watching, and regulating the township of Scarborough, in the county of York.

"Gentlemen,—I hereby give you notice that the supposed offence for which you have summoned me, was not committed within your jurisdiction; and that you will, and each of you will, be held responsible