Earl of Macclesfield v Fitton
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1683 |
| Date | 01 January 1683 |
| Court | High Court of Chancery |
English Reports Citation: 23 E.R. 392
IN COURT, LORD KEEPER.
Case 162.-eabl of macclesfield versus fitton. 19 Maii [1683]. In Court, Lord Keeper. [1] Eq. Ca. Ab. 287, pi. 2, 329, pi. 1 [Porter v. Hubert], S. P.; 2 Ch. Rep. 44 [85]; 3 Ch. Rep. 43 [78], S. C. Mortgagee assigns his mortgage to /. S., who pays off the principal and the interest which is considerably in arrear. Whether this interest shall be reckoned principal against the mortgagor. The bill was to have the redemption of a mortgage of the manor of Bosley and Sid-dington, in the county of Chester, that was formerly the estate of Sir Edward Fitton, which mortgage had been assigned to the defendant Fitton. The bill was exhibited so long since as Feb. 1662. But being then put off for want of proper parties, the plaintiff claiming the estate by the will of Sir Edward Fitton, and had not brought the co-heirs to a hearing, and so the cause slept till now, the Lord Macclesfield being all the while in possession. The points now insisted on, were two. [169] 1st. Upon the assignment to the defendant Fitton, the debt was stated betwixt him and the mortgagee, and some of the co-heirs, that were then looked upon to have a right to the redemption: and the defendant's counsel insisted, that this ought to conclude the plaintiff, as a stated account: but the plaintiff being no party thereunto, that was over-ruled by the court. Idly. There being great arrears of interest due at the time of the assignment, which were paid by Mr. Fitton, the original mortgage-money being but 1500,. and he paid upon the assignment 2300. The question was, whether the 800 paid for interest then in arrear should be reckoned principal, as to the defendant Fitton, and carry interest with it.(l) For the plaintiff it was insisted, interest was never made principal in such a case, unless the mortgagor had joined in the assignment; and they cited the case of Porter and Hubbart (3 Ch. Rep. 78; Nelson 150), where in a like case it was decreed, that interest should be reckoned principal; but for that reason the decree was reversed in the House of Lords.(2) But the Lord Keeper said, that precedent would not weigh much with him : he was of counsel in the case, and it was hard in all its circumstances ; for there the mortgage being in the late times, although the mortgagor received all the profits without interruption, when things were dearer than ordinary, by reason of the troubles in other parts of the...
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