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Decisions of the Superior Courts of New South Wales, 1788-1899

Terry v. Howe [1838] NSWSupC 74

equity procedure - legal practitioners, appearance for both sides - mortgage, foreclosure - mortgage, ``tacking"

Supreme Court of New South Wales

Willis J., August 1838

Source: Sydney Herald 22 August, 1838[ 1]

In Equity - Before Mr. Justice Willis.

Terry v. Howe. - His Honor said, that he observed an irregularity in the proceedings in this case which he must notice.  The original bill and also the bill of revivor were signed by Mr. Carter, who also signed the answer of Mr. Moore, a very material defendant.  It is necessary that there be distinct counsel for the plaintiff and defendant, as it is impossible that the same counsel can protect both interests.  In the next case Mr. Carter not only signs the bill and bill or revivor, but the answers of three defendants.

Mr. a'Beckett said, there must be some mistake for he drew up the answer of Mr. Moore, and if the name of Mr. Carter was appended to it, it was by mistake of the clerk who was used to sign the name of Mr. Carter to all equity proceedings.

By the consent of all parties, the answer was taken off the file and amended by Mr. a'Beckett's signature, and the case was proceeded with.

Messrs. Windeyer and Foster who appeared for the plaintiff, stated that this was a bill of foreclosure filed by the late Mr. Samuel Terry and revived by his executors.  The prayer of the bill was that the usual account be taken, and that the outstanding term of a former mortgagee be included, and that a day be named for the defendant to pay the balance.  It was suggested, although not prayed for in the bill that it would be must beneficial to all parties if the property was sold.

Mr. a'Beckett appeared for the defendants.

His Honor decreed that the matter should be referred to the Master to take an account, and the parties then to come to the Court for further directions.

Terry v. Windeyer. - This case was allowed to stand over by consent.  His Honor said, that in this case he observed that the bill and also several answers were signed by Mr. Carter.  He would also take this opportunity of explaining the law on what is commonly called tacking, which has been deemed hard law, but as it is law, of course, he must decide according to it; and he mentioned it then, because counsel could consider whether it would apply to the case that was coming on.  The law on this point is, that where the first mortgagee buys the third, or the third buys out the first, without notice of the second mortgagee, the second mortgagee is squeezed out.

 

Notes

[ 1]See also Terry v. Lamb, Sydney Herald, 6 March 1839.

Published by the Division of Law, Macquarie University