G A 
engines to kill and dedroy game ?—Lambe forthe plain¬ 
tiff contended, firft, that a/fya/ eftate of lool. a-year, 
was necelTary to conffitiite a qualification: that here the 
defendant had.no more than an equitable efiate in the part 
mortgaged ; and that fuch eftate cannot be taken notice 
of by a court of lav/ in the conflriuftion ot an aft of par¬ 
liament. Lord Mansfield intimating that it would be 
difficult to fupport this ground of argument, Mr. Lambe 
infilled, fecondly, that if an equitable ellate were confi- 
dered as giving a qualification. Hill in point ot annual 
value the defendant had not, upon the true conftruftion 
of the aft, an ellate fufficient to qualify him: that the 
words of the aft were, the clear yearly value of lOol. 
that this could not mean the .grofs value of the eflate, 
but mud mean the net income; that fuch it could not 
be, if, by incumbiainces of any fort, the illues and pro¬ 
fits were brought within that fum; that the objeft of 
the legillature was, to entitle thofeonly, whofeindepen¬ 
dence, arifing from the produce of their lands, would 
enable them to ufe thefe rights for the purpof'e of amufe- 
ment; that upon comparing the value of land at the 
time this law palTed with its prefent value, it would be 
found that the meafure of this independence had already 
been reduced much below the intention of the legilla¬ 
ture ; that if the conflru^lion contended for were ad¬ 
mitted, no degree of interell v/hatlbever in the produce 
of lands w'ould be necelfary, and the intention of the le¬ 
gillature mull be totally frullrated, inafmuch as the 
holder of an eflate, whether he charged it himfelf to its 
utmoll value, or had it transferred to him under fuch 
charge, without having, or without ever having had, an 
income arifing out of land to the amount of one farthing, 
mult in fuch cafe be entitled.—Lord Mansfield calling 
on the other fide, Chambre for the defendant, dated 
tlie only quedion to be, whether the interell of the mort¬ 
gage was to be confidered as fuch a reduftion of the an¬ 
nual value of the edate as would dedroy the defendant’s 
qualification? and contended, that this being a penal 
law, could not be extended by condruftion ; that it was 
befides a general law, and in its terms does-not require 
the party to have a legal edate. That the mortgage is 
in fubdance a fpecialty debt, the equity of redemption 
is confidered as a real edate, and defcendsto the heir of 
the mortgagor; who is confidered as a debtor, and his 
perfonal alTets liable in the fird indance to difcharge the 
mortgage; and though at law the heir.of the mortgagee 
takes a legal edate, yet the perfonal reprefentatives are 
confidered as entitled to receive the mortgage debt. 
And further inlided, that a mortgagee can never get 
pofieffion, if the mortgagor is ready to pay the money : 
and that by 7 Geo. II. c. 20. it may be paid impendente 
lite: and that if the legal edate only were to be regard¬ 
ed, an edate of loool. a-year, mortgaged in fee for tool, 
would not furnilh a qualification. That the only re¬ 
maining quedion was, v/hether the intercd of the mort¬ 
gage money was to be confidered as an outgoing that 
would reduce the value of the ellate below tool, and he 
contended, that the intered was not a thing illiiing out 
of any part of the edate in the nature of a rent or fer- 
vice ; that both principal and intered were a debt; tliat 
the intered mud be confidered as a debt on the perfon¬ 
al ty, jud as the principal is confidered as a debt; and 
that the edate was neither made of greater or lefs value 
by the mortgage, but was merely a pledge for the pay¬ 
ment of the debt ; that the legillaiure, therefore, when 
they iifed the words clear yearly value, meant to advert 
only to the value of the edate itlelf, and not to the quan¬ 
tity of intered that any perfon might have in it, the 
thing itfelf, without any regard to the charge upon it, 
provided only that the party was in polfelhon. That in 
the fame manner, in the cafe of a mortgagee in pod'eflion, 
there can be no doubt but that iie is enfitled to kill 
game; and the court in liich cafe will not enquire into 
the amount of the intered money of the fum advanced 
to the mortgagor upon liis land, provided the fecurity, 
M E. 219 
the land Itfelf, bo of the annual value the law requires; 
that the court would’ well weigh the confequences of 
fuch a doftrine as is contended for; that the judices, 
wlio mull enquire into this in a fummary way, mud 
make all perfons, of whatever odenfible ellate, difclole 
their private circumdances ; wltich would be too great 
an extenfionofa law already confidered in many indances 
as tyratmical ; that a rent charge indeed, or I'ervices if- 
fuing out of an edate, as matters of notoriety, might 
perhaps be coiifidered by th.e judices; but of fuch things 
only as were odenfible could they take cognizance ; lliat 
if every private tranlaftion in money concerns were to 
be laid open, if it could be ferioudy argued that fuch 
difcudions were proper fubjefts for a fummary jurifdic- 
tion, it would be inveding judices and informers with 
powers of haraffing the country as far beyond any known 
precedent, as it was beyond the intention of the legifla- 
ture; that their objeft had not been at any tinie an en¬ 
quiry into debts, but the aftual podeffion of, and intered 
in, landed property, and the vifible amount of that pro¬ 
perty ; tiiat with refpeft to choofmg knights of the Ihirc, 
the legiflature have declared by feveral llatutes, that 
the mortgagor or cejluy que ttujl in polfellion may vote for 
fuch edates, notwithdanding fuch mortgage or trull. 
—Buller J. But he mud I'wear that lie has 40s. a-year 
above every charge payable in refpeft of them.—Cham¬ 
bre. But this is by the exprefs provilion of lubfequent 
datutes. 13 Geo. II. c. 8. and 19 Geo. II. c. 28.—Lord 
Mansfield. The privilege here is given to property, 
and the cejluy que trujl, the mortgagor, is really the own¬ 
er ; thetrudee, the mortgagee, is merely nominal. We 
confider the defendant’s intered in thl% court jud as it 
would be confidered in a court of equity : it is an intered 
fubjeft to the payment of the mortgage ; it is a qualifi¬ 
cation of property ; and though it is not necelfary that 
lie fliould have a legal edate, lie mult have fuch pro¬ 
perty in the landaslhall produce a clear income of lool. 
per annum; or it might be carried fo far, as that he 
might have nothing and yet enjoy the privilege., What 
then are a mortgagor and mortgagee in chancery ? one 
the owner, and the other as having a charge upon the 
land; and the charge goes along with it.—Buller J. In 
the cafe of rent-charges the cognizance of the judice is 
admitted; and in many others they mud interfere, as in 
contrafts between landlord and tenant. Neither is there 
any pretence on tlie part of tlie defendant to complain of 
hardlhip. Polfellion is primafacie evidence of property : 
the defendant, therefore mud be prefumed to be the 
entire owner: the hard tafic lies upon the other party; 
who mud make proof of the contrary. If the judice 
may receive proof of rent-charges and fervices, what 
Ihould prevent his doing the like as to mortgages ? 
The only point then is, whether the words clear yearly 
value, mean, clear yearly value to the perfon in pojejjion? 
The words of this aft would of themfelves leave little 
room for doubt;'but when explained and fupported by 
the llatutes of James in pari materia, the words of which 
are, over and above all charges and reprifes, it can no longer 
admit of a quedion, but that it mud mean clear value to 
the perfon in poflellion; for by the common rule of con¬ 
druftion, all llatutes upon the fame fubjeft: are coiiii- 
dered as making one fydem of law, and confequently the 
words in the two lad llatutes mud be referred to the lla- 
tute in quedion. Willes and Alhluull Js. concurred. 
Judgment for the plaintiff. Cald. Caf. 230. 
Q.U.4L1FICATI0N DISPROVED BY A RETURN ON 
THE Property Tax. —Cafeof the K.v. Clarke, Eajl r 
Term, 39 Geo. III.—This was a conviftion on 5 Anne, 
for keeping and ufing a greyhound for the dedruftion of 
game without being duly qualified.. The conviftion 
was in the ufual form, negativing fpecifically each of 
the qualifications enumerated in 22^23 Car. II. The 
convidlion then proceeded as follows : “ And it duly ap¬ 
pears to us the laid, judices in the prefence of the laid 
defendant, that on the izd of March, 1798, at, See. be¬ 
fore 
