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 THE LAW 
 
 OF 
 
 DEBTOR AND CEEDITORs 
 
 TO WHICH IS SUBJOINED 
 
 A TABLE OF THE COURTS IN ENGLAND AND WALES 
 FOR THE RECOVERY OF DEBTS. 
 
 BY 
 
 CHARLES FRANCIS TROWER, ESQ., M.A., 
 
 OF THE INNER TEMPLE, BARRISTER- AT-LAW ; 
 LATE FELLOW OF EXETER COLLEGE, AND VINERIAN SCHOLAR, OXFORD. 
 
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 1860.
 
 
 LONDON : 
 
 PRINTED BY C. nOWORTH AND SONS, 
 
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 TO 
 
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 — ON WHOM THE EYES OP ALL TRUE LAW REFORMERS 
 ARE FIXED, — 
 
 IN THE HOPE THAT HE WILL NEVER REST, 
 
 UNTIL HE HAS PREVAILED ON THE LEGISLATURE 
 
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 — ^i)e ISistmct ^tiministration of Hato anti iSquitg,— 
 THE FOLLOWING TREATISE 
 
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 vert gratefully and respectfully dedicated. 
 
 783210
 
 PREFACE. 
 
 It ought not to be too ambitious an aim to ofJer to the 
 public, uno visu, a complete Treatise of the Law of Debtor 
 and Creditor, instead of sending them to the Equity 
 shelves of a Law library to know their equitable, and 
 to those of the Common Law for their legal, rights. It 
 ought not to be an impossible task to arrange and pre- 
 sent exhaustively all the combinations of that relation. 
 If, however, it has proved so in my case, I entreat others 
 better qualified forthwith to undertake it. 
 
 For assuredly the public and profession require a work 
 so constructed, and none such exists as yet. Various as 
 are the treatises which have embraced portions of this 
 great subject, none, so far as I am aware, have attempted 
 it as a whole. Mr. Ellis, indeed, published a volume in 
 1825, which professed so to deal with it, but the Law 
 has since then undergone such alterations, that even if 
 it had ever thoroughly treated it, — which, as regards the 
 Creditor's rights in Equity, it can hardly be said to have 
 done, — it would be no safe guide now : Mr. Prideaux 
 has written well on Judgments, but on them only as 
 they affect land : Mr. Miller and Mr. Fisher on Mort- 
 gages ; but the former on none but equitable ones, and 
 the latter only on equitable remedies : Mr. Ram on 
 Assets, but only after the Debtor's death : Mr. Lumley 
 on Annuities only : Mr. Coote, taking a wider range, 
 has chosen Mortgages generally, and Statutes, but has 
 dwelt on no other species of debt. And yet, by avoid- 
 ing, as far as possible, everything which is not. Law at
 
 VI PREFACE. 
 
 the present 7noment ; by stating the results of decisions, 
 rather than their reasons; and by aiming at condensa- 
 tion of expression, as well as of matter, it has appeared 
 to me not a hopeless attempt to compress a practical 
 treatise upon the entire subject into a single volume. 
 
 The chief cause which has deterred text-writers from 
 such an undertaking would appear to be the risk of per- 
 petual legislative changes, rendering the task of writing 
 on a subject which covers so large a field a discouraging 
 one; and indeed this evil of officious legislation threatens 
 to be a serious evil, and the intellectual sin of our 
 statesmen. If the changes thus constantly recurring 
 had in them anything organic or final, it would behove 
 everyone to hail them with satisfaction, even though 
 they interfered with his own literary labours, but they 
 are of so fragmentary a character, and contain such pin 
 scratches of Reform, that they perplex the practitioner, 
 and mystify still more the whole body of our Law; each 
 reformer, it is to be feared, narrowing his vision to his 
 peculiar hobby of Reform, without inquiring how his 
 efforts harmonize with those of past or present labourers 
 in the same cause. 
 
 Take, for example. Lord St. Leonards. If he had ap- 
 plied his vigorous and accurate mind to consolidate the 
 Laws affecting his favorite Purchasers, he would have 
 earned the gratitude of posterity ; but in his zeal for them 
 he has disorganized Laws equally deserving of atten- 
 tion. Look at his " Act to further amend the Law of 
 Property (23 & 24 Vict. c. 38)," an Act passed, it is 
 to be feared, through an exhausted Parliament, without 
 that vigilant criticism which its importance required. It 
 seems not too much to say that by it more has been 
 done to revolutionize the Law of Debtor and Creditor in 
 one of its most important- branches than was ever done
 
 PREFACE. VU 
 
 before. Thus whilst he has prevailed on the Legislature 
 to make the sweeping change, that judgments shall not 
 affect purchasers and mortgagees until a writ of execu- 
 tion has been registered, and that freeholds and copyholds 
 shall in this respect — though not as between the Debtor 
 and Creditor — be placed on the same footing as lease- 
 holds, the judgment itself must still be registered under 
 the former Law as against Creditors, and, as the Act is 
 prospective only, all the old learning must be retained. 
 On the contrary, in the administration of assets it is not 
 the registration of the writ, but registration and re-regis- 
 tration of the judgment, which is adopted as the test for 
 the preference of the judgment, the effect of which, as 
 against Purchasers, is limited to three months from 
 registration of the writ, and re-registration is of course 
 out of the question. What effect, too, will the new Act 
 have upon the Register Acts? Surely to have produced 
 a comprehensive and philosophical Code of Law, at least 
 as regards Purchasers, and those whose rights are so 
 closely connected with them as Creditors' are, and to have 
 harmonized and consolidated the 1 & 2 Vict. c. 110, 
 2 & 3 Vict. c. 11, and 18 & 19 Vict. c. 15, would have 
 been a work worthier of an ex-Chancellor. 
 
 To the evil I have referred to of this piecemeal legis- 
 lation, there seems but one cure, — the consolidation of 
 the whole Statute Law ; and, when consolidated, its 
 administration by one set of Courts anirnated by the 
 same principles, and regulated by the same procedure ; 
 a glorious consummation — to which the magnificent, 
 though too long delayed, project of bringing all the Law 
 Courts under one roof, seems to point as the natural and 
 necessary result. 
 
 When to this has been added the reform of our re- 
 ported or " Case " Law, by a thorough elimination of
 
 VIU PREFACfi. 
 
 decisions overruled, or rendered unnecessary by later 
 decisions or Statute Law ; by an authoritative declaration 
 of Parliament, where those decisions conflict, which is 
 to prevail as the rule of Civil conduct ; and by an ex- 
 purgation of identical or parallel cases, — then, but not 
 till then, will our Law be worthy of the name, and become 
 the just pride of Englishmen. 
 
 The hope that even this generation may yet see the 
 accomplishment of so great an end, in the direction of 
 which all modern legislation is inevitably tending, has 
 been my chief encouragement in the present Work. 
 
 C. F. T. 
 
 6, New Square, Lincoln's Inn, 
 Michaelmas Term, 1860.
 
 TABLE OF CONTENTS. 
 
 INTRODUCTION. 
 
 DIVISION I. 
 
 JUDGMENT DEBTS — SPECIALTY DEBTS — SIMPLE CONTRACT 
 
 DEBTS— AS BETWEEN SUBJECTS, 
 
 — ♦ — 
 
 PART 1. 
 
 JUDGMENT, SPECIALTY, AND SIMPLE CONTRACT, DEBTS, DURING 
 THE LIFE OF THE DEBTOR. 
 
 BOOK I. 
 
 JUDGMENTS. 
 
 CHAPTER I. 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 SECT. PAGE 
 
 1. Creation of a Judgment Debt .. .. .. ., ..5 
 
 2. Removal of Judgments .. .. .. ,, .. 15 
 
 3. When Judgments bind, and herewith of Registration and Re-registration 22 
 
 4. Rights at Law . . . . . . . , . . . . 29 
 
 5. Rights in Equity .. .. .. .. ., .. 37 
 
 6. Judgments, and their Effects, prevented .. .. .. ..42 
 
 7. Legal Remedies .. .. .. .. .. ,, 48 
 
 8. Equitable Remedies . . . . . . . . . . . . 56 
 
 9. Priorities . . . . . . . . . . . . 6Q 
 
 10. Death of Creditor — Assigment of Judgments — Interest — Costs — Satis- 
 faction . . . . . . . , , . , . . . 76 
 
 H. Judgment Debtor a Bankrupt or Insolvent .. .. .. 81 
 
 12. Judgments by Bankrupts or Insolvents .. .. ,, ,.91 
 
 CHAPTER II. 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 1. Judgments against several, not Partners .. .. .. ..94 
 
 2. Judgments against Un-incorporate Partnerships .. .. 97 
 
 3. Judgments against Quasi-Corporate Partnerships before Dissolution, or 
 
 its Equivalents .. .. .. .. .. ., 105 
 
 4. Judgments against Quasi-Corporate Partnerships on their Dissolution, or 
 
 its Equivalents .. .. .. .. .. 115 
 
 5. Judgments against Corporations proper .. .. .. .. 123 
 
 CHAPTER III. 
 
 JUDGMENTS BY SEVERAL. 
 
 1. Solvent Judgment Creditors .. .. .. .. 131 
 
 2. Joint Judgment Creditors Bankrupt, or Insolvent, or Wound up ..134
 
 CONTENTS. 
 
 BOOK II. 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 CHAPTER I. 
 
 SPECIALTY DEBTS. 
 SECT. PAGE 
 
 1. Bonds and Covenants .. .. .. .. .. ..138 
 
 2. Rents and Policies .. .. .. .. .. 150 
 
 CHAPTER II. 
 
 SIMPLE CONTRACT DEBTS. 
 
 1. Simple Contracts — Bills of Costs .. .. .. .; 164 
 
 2. Bills — Notes — Cheques — I O U s — Seamen's Wages — Breaches of Trust 
 
 — Devastavits .. •• .. •• •• 170 
 
 3. Assignment of Specialty and Simple Contract Debts .. .. 179 
 ■1. Special Remedies^Set-off — Sureties — Agency .. .. 192 
 
 5. Time to sue — Interest — Death of Creditor — Release — Payment — Appro- 
 
 priation . . . . . . . . • • • • • • 205 
 
 6. Specialty and Simple Contract Debts due from or to a Bankrupt or 
 
 Insulvent .. .. .. .. ■• .. 213 
 
 7. Courts .. .. .. .. .. .. ..219 
 
 CHAPTER III. 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS, TO OR FROM SEVERAL. 
 
 1. Debtors and Creditors, not Partners .. .. .. .. 226 
 
 2. Debtors and Creditors, Partners .. .. .. •. 235 
 
 3. Creditors' Composition Deeds — Clubs .. .. >> .• 251 
 
 4. Femes Covertes— Infants — Non-Compotes— Aliens .. .. 257 
 
 PART II. 
 
 JUDGMENT, SPECIALTY, AND SIMPLE CONTRACT, DEBTS, AFTER THE 
 DEATH OF THE DEBTOR. 
 
 BOOK I. 
 
 SOLE DEBTOR. 
 
 CHAPTER I. 
 
 LIABILITY OF REPRESENTATIVES TO CREDITORS FOR DEBTS CONTRACTED BY THE 
 
 DECEASED. 
 
 1. Assets .. .. .. .. .. .. ..268 
 
 2. Voluntary Payments of Debts by Executor .. .. .. 276 
 
 CHAPTER II. 
 
 COMPULSORY PAYMENTS. 
 
 1. Judgment Creditor .. .. .. .. .. .. 281 
 
 2. Specialty and Simple Contract Creditors .. .. .. 285 
 
 3. Marshalling — Tacking — Order of Payment of Debts — Interest — Release 
 
 of Debts .. .. ,. .. .. .. ..298
 
 CONTENTS. XI 
 
 CHAPTER III. 
 
 LIABILITY OF REPRESENTATIVE TO CREDITORS FOR ACTS DONE BY HIMSELF 
 
 AS SUCH. 
 SECT. PAGE 
 
 1. Rightful Acts .. .. .. .. .. .,307 
 
 2. Wrongful Acts .. .. .. .. .. .. 309 
 
 BOOK II. 
 
 SEVERAL DEBTORS, AFTER THE DEATH OP ONE. 
 
 CHAPTER I. 
 
 PARTNER AND NON-PARTNER DEBTORS. 
 
 1. Partners .. .. .. .. .. .. ..316 
 
 2. Debtors not Partners .. .. .. .. .. 323 
 
 DIVISION II. 
 
 MORTGAGE DEBTS— ANNUITIES— CROWN DEBTS. 
 
 PART I. 
 
 MORTGAGES. 
 
 BOOK I. 
 
 MORTGAGES TO AND BY ONE. 
 
 CHAPTER I. 
 
 MORTGAGES OF LAND. 
 
 1. Legal Mortgages .. .. .. .. .. .. 329 
 
 2. Equitable Mortgages .. .. .. .. .. 337 
 
 CHAPTER II. 
 
 MORTGAGES OF PERSONALTY — REMEDIES. 
 
 1. Mortgages of Personalty .. .. .. .. .. 343 
 
 2. Remedies of Mortgagee and Mortgagor of Land .t .. 350 
 
 3. Remedies of Mortgagees and Mortgagors of Personalty .. .. 366 
 
 CHAPTER in. 
 
 TRANSFERS. 
 
 1. Transfer of the Mortgage .. .. .. .. .. 378 
 
 2. Transfer of the Equity of Redemption — Priorities of Mortgagees .. 383
 
 CONTENTS. 
 BOOK II. 
 
 MORTGAGES BY AND TO SEVERAL. 
 CHAPTER I. 
 
 MORTGAGES BY SEVERAL. 
 
 CHAPTER XL 
 
 MORTGAGES TO SEVERAL. 
 
 PART II. 
 
 ANNUITIES — RENT-CHARGES —CROWN BEBTS. 
 
 PAGE 
 
 SECT. 
 
 1. Mortgages by several, not Partners .. .. •• .. 393 
 
 2. Mortgages by Partners .. .. .. .. .. 401 
 
 1. Partners and Non-Partners .. .. •• •• •• 407 
 
 2. Parties to Mortgage Suits .. .. •• .. •• 411 
 
 BOOK I. 
 
 ANNUITIES — RENT-CHARGES. 
 
 CHAPTER I. 
 
 ANNUITIES. 
 
 1. Personal Annuities .. .. .. .. •• •• 417 
 
 2. Rent-Charges .. •• •• •• •• •• 422 
 
 BOOK II. 
 
 CROWN DEBTS. 
 
 CHAPTER I. 
 
 DEBTS DUE TO THE CROWN FROM A SUBJECT. 
 
 1. Specialties .. •• •• .. .. •• ..429 
 
 2. Simple Contract Debts .. .. •• .. .. 433 
 
 CHAPTER II. 
 Debts due to a Subject from the Crown .. .. .. 439 
 
 APPENDIX. 
 
 Table OF Courts .. .. .. •• .. .. 442
 
 TABLE OF CASES. 
 
 Note. — In many instances I have referred the reader to a collection of cases, mediately 
 through the text-book which has collected them, rather than immediately to the cases 
 themselves, in order that he may consult, through the text-book references, a greater 
 number of cases than if they had been cited singly in the notes. Hence the following 
 Table of direct references is comparatively small. 
 
 A. 
 
 PAGE 
 
 Acton t). Peirce .. .. .. 356 
 
 Adams t;. Pay nter .. .. 64,414 
 
 Adderley r. Dixon .. .. .. 190 
 
 Adey t>. Arnold. . .. .. .. 301 
 
 Alchin i;. Hopkins .. .. .. 405 
 
 Aldrich v. Cooper . . . . . . 362 
 
 Alexander u. Crosby .. .. .. 353 
 
 Allen t). Knight 384 
 
 r. Papworlh .. .. .. 400 
 
 V. Williams 125 
 
 Allison w. Herring .. .. ..169 
 
 Ames V. Birkenhead Dock Company . . 49 
 Ancaster ( Duke of) v. Mayer .. 301 
 
 Angus' case .. .. .. .. 251 
 
 Angus D. Angus .. .. .. 474 
 
 Annandale (Marchioness of) v. Harris 145 
 Antrobus v. Smith .. 187, 188, 190 
 
 Apharry v. Bodingham . . 282, 286 
 
 Armstrong v. Burnet , . . . . . 320 
 
 Armstrong's case .. .. ..321 
 
 Arnold «. Mayor, &c. of Gravesend .. 129 
 
 V. Ridge 129 
 
 Ashby V. Ashby . . 160, 307, 398 
 
 Ashley f. Sewell .. .. .. 296 
 
 Ashton V. Lord Langdale .. .• 146 
 
 Atkinson t). Gray .. .. .. 295 
 
 Att.-Gen.i;. Cornthwaite .. .. 282 
 
 V. Corporation of London .. 443 
 
 iJ. Hailing 443 
 
 V. Parnther . . . . . . 265 
 
 V. Wilkins (see Errata) 73, 386 
 
 V.Wilkinson .. .. 129 
 
 Aubin t;. Daly .. .. .. 418 
 
 Aulton V. Atkins .. .. .. 181 
 
 Austin V. Mills . . .. . . 6 
 
 Australia, Royal Bank of .. .. 243 
 
 Averal v. Wade .. .• ..75 
 
 B. 
 
 Baber v. Harris 
 
 Bagot t). Williams 
 
 Bagshaw v. E. Union Railway Co. 
 
 Bagster t). Earl of Portsmouth 
 
 Bailey v. Ekins 
 
 Bain v. Harris . . .. . . 
 
 Balch V. Westall 
 
 Ba!chen 4). Scott 
 
 Baldwins. Belcher 
 
 Balfe V. Lord . . . . . . 
 
 Ball V. Cogg 
 
 t>. Harris .. 
 
 .. 159 
 451, 464 
 320 
 265 
 300 
 177 
 
 57 
 280 
 
 38 
 337 
 420 
 393 
 
 Bardwell v. Lydall 
 Barker v. Buttress 
 
 y. Smark .. #. 
 
 Barnes v. Thrupp 
 Barnewall v. Barnevvall 
 Barrack v. M'Culloch .. 
 Barrow v. Wadkin 
 Bartholomew v. May . . 
 Bartlett v. Bartlett 
 Barton v. Vanheythuysen 
 Bass V. Clivley .. 
 Batard u. Hawes 
 Batchelor i;. Middleton .. 
 
 Bateman i;. Bateman .. 
 Bates V. Brothers 
 
 V. Dandy 
 
 Bathurst's case . . 
 
 Bayley v. Boulcott 
 
 Beasly v. Darcy 
 
 Beaufort (Duke of) v. Phillips 
 
 Beavan v. Lord Oxford 28, 
 
 Beech v. Keep . . 
 
 Beggr V. Forbes . . 
 
 Bell V. Alexander 
 
 Bennett ?;. Cooper .. .. 
 
 Bennet t>. Powell 
 
 Benson t;. Baldwyn 
 
 Bentley t). Mackay .. 
 Berney w. Sewell 
 Berrington v. Evans . . 
 
 Berry v. Irwin . . . . . • 
 
 Betterbee v. Davis . . . c 
 
 Belts r. Kimpton 
 
 Bick V. Motly . • 
 
 Biddulph V. Lord Camoys 
 
 Bill V. Cureton. . 
 
 Bishop V. Hatch 
 
 V. Countess of Jersey . . 
 
 Bisset t;. Burgess 
 
 Blair v. Bromley 
 
 Blake v. Marnell 
 
 Blakeley's Executors (Ex parte) 
 
 Blakely v. Brady 
 
 Blatch V. Wilder 
 
 Bloxam v. H"pkinson . . 
 
 Blue V. Marshall 
 
 Blunden «;. Desart 
 
 Boardnian v. Mosman . . 
 
 Boddy V. Kent .. . . . • 
 
 Bolton's case . . 
 
 Bond?;. Bell 
 
 V. Kent . . . . . • 
 
 t). Simmons 
 
 Booth V. Booth . . . • 
 
 PAGE 
 
 .. 1£8 
 321, 323 
 .. 221 
 
 62, 119 
 60, 61 
 .. 40 
 .. 333 
 .. 389 
 188, 371 
 .. 14 
 .. 365 
 .. 324 
 .. 415 
 ,, 356 
 .. 124 
 .. 398 
 .. 279 
 .. 187 
 .. 196 
 .. 7 
 38, 62, 68 
 
 184, 186 
 .. 442 
 .. 291 
 .. 370 
 .. 36 
 .. 151 
 .. 186 
 
 358, 364 
 .. 292 
 .. 214 
 .. 212 
 .. 132 
 .. 313 
 .. 265 
 .. 254 
 .. 126 
 .. 238 
 .. 304 
 .. 237 
 .. 396 
 .. 321 
 
 177, 189 
 .. 275 
 .. 79 
 
 310, 312 
 .. 195 
 ,. 233 
 .. 133 
 .. 79 
 60, 62 
 .. 3+2 
 .. 132 
 .. 358
 
 XIV 
 
 TABLE OF CASES. 
 
 PAUE 
 
 Bootli 11. Leycester .. .. .. 426 
 
 V. Smith 91 
 
 Boulter ji. Peplow .. .. .. 256 
 
 Boulton (Ex parte, in re Sketchley). . 69 
 
 Bowra t;. Wright 331 
 
 Boyle (Ex parte) .. .. ..83 
 
 Brace v. Marlborough (see Errata) •• 339 
 Bradley t). Borlase .. .. ..79 
 
 V.Copley 372 
 
 Brandling v. Plummer . . . . 73 
 
 Brandon r. Robinson .. .. •• 268 
 
 Braybrooke (Lord) v. Inskip .. .. 381 
 
 Brearclirte v. Dorrington . . . . 68 
 
 Brecon (Mayor, &c. of) v. Seymonr . . 361 
 Bridge j;. Bridge .. .. 185,188 
 
 Bridges v. Hinxman . . . . . . 292 
 
 • V. Longman . . . . . . 353 
 
 Briggs D. Penn . . .. .. .. 326 
 
 Bristead «;. Wilkins .. .. 49,58 
 
 Brocklehurst ?;. Jessop .. 364,389 
 
 Brookes D. Stroud .. .. ..413 
 
 Broughton «. Broughton .. .. 169 
 
 Brown i;. Cole .. .. .. .. 354 
 
 «. Dowthwaite .. .. 291 
 
 D.Gordon 317 
 
 i;. Litton 409 
 
 ■ V. Pittman 290 
 
 • V. Vawser . . . . . . 147 
 
 ■ y. Weatherby .. .. ..317 
 
 Browne t). Lee . . .. .. ..199 
 
 V. London Necropolis . . 380 
 
 Brunton t;. Neale .. .. 30,39 
 Buckley (Ex parte) 230 
 
 V. Barber 402 
 
 Bull V. Faulkner 50 
 
 Bullock D. Wheatly .. .. 311,329 
 
 Bulwer v. Astley . . , , . . 425 
 
 Bunn D. Markham .. .. .. 191 
 
 Burgess v. Wheate .. .. .. 342 
 
 Burke u. Killikelly 284 
 
 Burlinson's case .. .. .. 251 
 
 Barney i;. M'Donald 267 
 
 Burton v. Fisher 290 
 
 Bush v. Shipman .. .. .. 253 
 
 Bushby t). Munday .. .. .. 474 
 
 Buxton v. Buxton .. .. ..311 
 
 Cadogan v. Kennet 
 
 , , 
 
 14, 30 
 
 375 
 
 Cafe V. Bent . . 
 
 , . 
 
 
 24 
 
 Calvin's case .. 
 
 
 
 266 
 
 Cambrian Mining Co., 
 
 Richardson's 
 
 
 case . . 
 
 
 
 111 
 
 Cannan v. South-East. Railway 
 
 Co. 
 
 
 91 
 
 Cannell v. Buckle 
 
 
 
 
 211 
 
 Cantley (In re).. 
 
 
 
 
 381 
 
 Carletou v. Leighton . . 
 
 
 
 
 331 
 
 Carlon v. Farlar 
 
 
 
 
 62 
 
 Carniichael v. Carmichae 
 
 .. 
 
 
 
 328 
 
 Carnesew v. Arscott 
 
 
 
 
 425 
 
 Carr v. Boyce . . 
 
 
 
 
 266 
 
 V. Carr 
 
 
 
 
 191 
 
 Eastabrooke 
 
 
 
 
 279 
 
 Carter v. Carter , . 
 
 
 
 
 381 
 
 1, 178, 
 
 1' 
 Carteret (Lord) v. Pascall 
 Casberd v. Att.-Gen. 
 Cator V. Burke . . 
 Chadwick v. Holt 
 Chaffers t'. Headlam 
 Challis V. Casborne 
 Chambers v. Goldwin 
 Chaplin (Ex parte) 
 Chapman v. Esgar 
 
 V. Milvain 
 
 ■ V. Turner 
 
 Charlton v. Low 
 Cheetham v. Ward 
 Childs V. Monins 
 Chippendale (Ex parte) 
 Christophers v. White . . 
 Church V. Imperial Gas Co. 
 Churchill v. Bank of England 
 Clare v. Wood . . 
 Clark V. Cort . . 
 Clarke v. Perry 
 
 V. Seton 
 
 Clarke's Trusts (In re 
 Clough V. Bond 
 Cobb V. Becke . . 
 Colchester (Mayor, &c. of) v. 
 Coles V. Forrest 
 
 V. Haden . . 
 
 Collett V, Morrison 
 Collins V. Archer 
 
 V. Reece 
 
 CoUinson v. Patrick 
 
 Colman v. Croker 
 
 Colne Railway Company (Ex 
 
 Colyer v. Finch 
 
 Congreve v. Evetts 
 
 Cook V. Gregson . . 269, 270, 
 
 V. Sturgis. . 
 
 Coombe (Ex parte, re Beavan) 
 
 Coppin V. Coppin 
 
 Corner v. Shew. . 
 
 Courtoy v. Vincent 
 
 Cowell V. Simpson 
 
 Cowley V. Watts 
 
 Cox V. Barnard 
 
 V. Bishop .. 
 
 V. Toole . . 
 
 Cradock v. Piper 
 Cranstoun v. Johnston 
 Crawshay v. Maule 
 Creasor v. Robinson 
 Cropper v. Mellersh 
 Cross V. Kennington 
 
 V. Sprigg . . 
 
 Crosse v. Smith 
 Crossley v. Dobson 
 Crowther v. Crowther 
 Cuddington v. Withy 
 
 233, 
 Lowten. 
 
 159, 
 
 parte). 
 
 14, 
 
 310, 
 
 AGF, 
 
 78 
 434 
 184 
 7 
 291 
 299 
 412 
 181 
 299 
 246 
 278 
 301 
 199 
 308 
 340 
 169 
 235 
 
 22 
 
 39 
 196 
 
 35 
 142 
 391 
 327 
 203 
 406 
 416 
 9 
 163 
 386 
 253 
 185 
 375 
 182 
 
 73 
 
 88 
 301. 
 
 90 
 340 
 203 
 308 
 
 58 
 195 
 
 28 
 149 
 157 
 
 62 
 169 
 474 
 
 99 
 290 
 416 
 273 
 211 
 312 
 229 
 7 
 125 
 
 D. 
 
 Daniel (In re, ex parte Ashby) 
 Darke v. Martin 
 Davenport (Ex parte) 
 David r. Frowd .. .. 
 
 67 
 311 
 182 
 299
 
 TABLE OF CASES. 
 
 
 PAGE 
 
 Davies v. Vernon ., . 
 
 .. 358 
 
 \ir;ii • 
 
 .. 414 
 .. 358 
 
 - v. VT lllldlTlS • • • 
 
 Davis v. Battine 
 
 V. Duke of Marlborough 
 
 V. Spurling 
 
 Dawson v. Prince 
 
 .. 330 
 .. 313 
 .. 174 
 
 De la Garde v. Lempriere 
 
 .. 259 
 
 De Sorbein v. Bland . . 
 
 .. 309 
 
 De Tastet v. Shaw 
 
 .. 278 
 
 Dean v. Allen . . 
 
 .. 298 
 
 Delabere v. Norwood . . 
 
 .. 412 
 
 Delaunay v. Strickland 
 
 .. 256 
 
 Demandray v. Metcalf 
 
 .. 376 
 
 Dening v. Ware 
 
 .. 147 
 
 Dent V. Dunn .. 
 
 .. 212 
 
 Dering v. Lord Winchelsea . 
 
 75, 199 
 
 Derisley v. Custance . . 
 
 .. 285 
 
 Devese v. Pontet 
 
 .. 279 
 
 Digby t;. Irvine 
 
 32, 33 
 
 Dillon V. Cruise . . . 
 
 .. 206 
 
 ,. "Dl^r^l-^**- • • 
 
 .. 60 
 .. 311 
 
 Dimes v. Scott . . 
 
 Dix V. Burford 
 
 272,313,314 
 
 Dodgson V. Bell 
 
 .. 251 
 
 Dodson «. Sammell .. ' 
 
 .. 427 
 
 Doe V. Barton . . 
 
 .. 351 
 
 d. Grimsby v. Ball 
 
 85, 89 
 
 d. Roby V. Maisey 
 
 d. Wigan v. Jones 
 
 .. 355 
 .. 31 
 
 V. Wood . . . . . 
 
 .. 308 
 
 Dollond V. Johnson 
 
 .. 276 
 
 Donaldson v. Donaldson 
 
 .. 188 
 
 Donne v. Hart . . . ■ 
 
 .. 398 
 
 Dormay a. Borrodaile . . 
 
 .. 273 
 
 Douglas V. Russell 
 
 .. 178 
 
 Dowbiggen i'. Bourne . . 
 Downe v. Morris . . . 
 
 .. 199 
 .. 383 
 
 Downes v. Grazebrook 
 
 .. 384 
 
 Downs V. Collins , . 
 
 .. 316 
 
 Dowse V. Cox . . . . . 
 
 .. 307 
 
 Doyle V. Blake . . 
 
 .. 312 
 
 Drew V. Earl of Norbury 
 Drosier v. Brereton 
 
 .. 284 
 .. 408 
 
 Drummond «;. Tracy . . 
 
 .. 285 
 
 Drury i;. Smith 
 
 Drysdale v. Piggott 
 
 Du Hourmelin v. Sheldon 
 
 .. 191 
 
 .. 160 
 
 . 267, 332 
 
 Dublin and Wicklow Railwa 
 
 y Co. V. 
 
 Black 
 
 .. 263 
 
 Dundas v. Dutens 
 
 .. 57 
 
 Dunstan v. Patterson . . 
 
 .. 355 
 
 Dunster v. Glengall 
 
 .. 69 
 
 Dutton V. Morrison . . 
 
 .. 102 
 
 Dvi Vigier v. Lee 
 
 .. 391 
 
 Dyson v. Hornby 
 V. Morris 
 
 . - 90 
 366, 868, 370 
 
 E. 
 
 Eastwood V. Vinke 
 Eddels V. Johnson 
 Edge V. Worthington 
 Edmunds v. Brown 
 Edwards v. Cunliffe 
 V. Jones 
 
 Edwards v. Martin 
 Elder v. Maclean 
 Elliot V. Edwards 
 Ellis?;. Griffith.. 
 Ellison V. Elwin 
 
 V. Ellison 
 
 Elvy V. Norwood 
 Enys V. Donnithorne 
 Estwick V. Caillaud 
 Etty V. Bridges 
 Evans v. Brown 
 V. Evans 
 
 PACE 
 
 . 359 
 . 369 
 . 342 
 . 76 
 . 398 
 . 188 
 . 391 
 . 227 
 . 252 
 . 388 
 217, 293 
 .. 38 
 
 Farmer v. Curtis 
 Fawcet v. Bowers 
 Feistel v. King's College 
 Fell V. Brown . . 
 Feltham v. Clark 
 Fenn v. Craig . . 
 Fife V. Round . . 
 Finch V. Shaw . . 
 
 V. Lord Winchelsea . . 30 
 
 Fisk V. Norton . . 
 Fitch V. Rochfort 
 Flarty v. Odium 
 Fleetwood v. Pool 
 Flemyng v. Hector 
 Flory V. Denny 
 Floyer v. Sherard 
 Foley V. Addenbrooke 
 
 t;. Burnell 
 
 V. Hill . . 
 
 Footner v. Sturgis 
 Forbes v. Lemond 
 
 V. Moffatt 
 
 Ford i'. Wastell 
 Fores v. Johnes 
 Forman v. Homfray 
 Forsight i;. Grant 
 Fortescue v. Barnett 
 Forth V. Duke of Norfolk 
 Foster v. Bank of England 
 
 V. Handley 
 
 V. Hargreaves 
 
 Fowler v. Fowler 
 Franco v. Bolton 
 Franks v. Cooper 
 Eraser v. Jordan 
 
 V. Kershaw 
 
 Freake v. Cranefeldt 
 
 Freakley v. Fox 
 
 Freer v. Hesse . . 
 
 Fripp V. Chard Railway Company 
 
 Fullers. Redman .. .. 
 
 Furness v. Caterham Railway Co 
 
 63, 
 
 12, 
 
 38*, 
 .71, 
 
 348, 
 
 99, 
 
 277, 
 
 415 
 424 
 130 
 412 
 388 
 163 
 442 
 386 
 383 
 291 
 376 
 331 
 478 
 255 
 344 
 420 
 227 
 268 
 314 
 
 62 
 252 
 331 
 
 62 
 141 
 248 
 279 
 367 
 
 38 
 182 
 270 
 388 
 279 
 141 
 278 
 198 
 103 
 314 
 211 
 
 70 
 404 
 283 
 113 
 
 279 
 
 G. 
 
 295 
 
 
 340 
 
 Gage or Gray v. Acton 
 
 130 
 
 Gale V- Burnell. . 
 
 359 
 
 Gardiner v. Griffith 
 
 189 
 
 Garforth v, Bradley 
 
 210 
 343 
 365 
 132
 
 TABLE OF CASES. 
 
 PAGE 
 
 Garland (Ex parte) 315 
 
 Garner v. Briggs . . . . . . 7 
 
 1;. Moore .. .. ..311 
 
 Garrett v. Hayter 293 
 
 C.Noble 309 
 
 Gibbs V. Ougier . . . . . . 274' 
 
 Gibert v. Hales 283 
 
 Gifford (Ex parte) 199 
 
 Giles t). Grover .. .. .. 433 
 
 Gladstone «;. Birley .. .. .. 194 
 
 Glasse i;. Marshall 181 
 
 Glendinning (Ex parte) .. .. 198 
 
 Gloucester (Corporation of^ v. Wood.. 47 
 
 Glynn v. Thorjie 303 
 
 Godson f. Good .. .. .. 317 
 
 Goldsmid t). Stonehewer .. ..415 
 
 Goldsmith v. Russell .. ..55, 59, 85 
 
 Goodchild t>. Terrett 292 
 
 Goodman w. Grierson .. .. .. 338 
 
 Gordon ?;. Graham .. .. .. 339 
 
 Gore V. Bowser .. .. 23, 39 
 
 Gosling t;. Carter .. .. .. 395 
 
 Gould V. Robertson . . . . . . 253 
 
 Gouldsworth D. Knight .. .. 233 
 
 Gouthwaite's case .. .. .. 321 
 
 Graham v. Londonderry . . . . 398 
 
 Grant ?;. Grant . . .. .. ., 142 
 
 Graves v. Graves . . . . . . 273 
 
 Gray v. Chiswell 318 
 
 j;. Mathias .. .. ..144 
 
 Graysbrook v. Fox . . . . . . 284 
 
 Greaves !). Wilson .. .. .. 387 
 
 Green v. Briggs . . . . . . 194 
 
 V. Farmer .. .. .. 375 
 
 V. King . . . . . . . . 407 
 
 Greig t;. Somerville .. .. .. 297 
 
 Grenfell y. Dean and Canons of Windsor 127 
 Gresvvold v. Marsham . . . . • . 384 
 
 Grey r. Cuthbertson .. .. .. 337 
 
 Greycoat Hospital t). Westminster Im- 
 provement Commissioners . . .. 38 
 
 Griffith V. Anvill 424 
 
 Grittiths (Ex parte) 82 
 
 Grigby ». Cox 261 
 
 Guion V. Trask (see Errata) .. .. 377 
 
 Gyles t). Hall 354 
 
 H. 
 
 Haddrick «. Heslop .. .. ..99 
 
 Hall V. Austin 290, 326 
 
 V. Hallett 311 
 
 V. Palmer 187 
 
 Hamilton y. Houghton .. .. 283 
 
 Hammond f. Barclay .. .. .. 193 
 
 V. Messenger .. 183, 184 
 
 Hanman V. Riley .. .. .. 415 
 
 Harden V. Forsyth .. .. .. 489 
 
 Harding V. Grady .. .. .. 273 
 
 Hardy ti. Reeves .. .. .. 3)1 
 
 Harecourt v. Wrexham .. ..271 
 
 Hargrave v. Ilargrave.. .. 24, 27 
 
 Harland v. Binks 252 
 
 Harper v. Faulder . . . . . . Z')8 
 
 Harrington v. Price .. .. 357, 3.}8 
 
 Harris v. Davison 
 
 ■ V. Watkins 
 
 Harrison v. Harrison 
 
 V. Pennell 
 
 V. Stewardson 
 
 Hartley v. O'Flaherty 
 Hartwell v. Chitters 
 Harvey v. Crickett 
 
 V. Gil bard 
 
 Haslewood v. Pope 
 Hawkins v. Day 
 V. Gathercole 
 
 29, 
 
 85, 92, 
 
 Head v. Egerion 
 Heath v. Brindley 
 
 V. Chadwick 
 
 V. Hall .. 
 
 Heatley v. Thomas 
 Hele V. Lord Bexley 
 Helme v. Smith 
 Heming w. Swinnerton .. 
 
 Hemming D. Brabason 
 Hendersons. Henderson 
 Henry v. Gt. Nortliern Railway 
 Herbert's (Sir William's) case 
 Herbert t;. Sayer 
 
 Hervey «. Audland 
 Heward v. Wheatley . . 
 Hewett t). Loosemore .. 
 Heyward v. Sherington 
 Higgins (Ex parte, In re Tyler) 
 Hill V. Spencer. . 
 
 Hillsv. M'Rea 
 
 Hobart t). Abbot .. 
 
 Hobson w. Bell . . 
 Hockley v. Bantock . . 
 Hodge I'. Attorney-General . . 
 Hodgson V. Murray 
 Hole D. Harrison 
 Holies V. Carr .. 
 HoUis D. CI ridge 
 Holmes V. Higgins 
 
 V. Mentz 
 
 Holsgrave ?i. Hedges .. 
 Holt V. Dewell . . 
 V. Murray 
 
 Hook J). Moreton 
 
 Hooper (Ex parte) .. •• 
 
 V. Cooke 
 
 Hornsby V. Lee 
 Hotham v. Somerville 
 Hough i;. May . . 
 Houlditch 2J. Collins .. 
 Hovenden v. Lord Annesley .. 
 Howard v, Digby . . . . 
 
 How ti. Vigures 
 Howe t;. Earl Dartmouth .. 
 Hubbard t). Beckford .. 
 Hudson V. Carmichael 
 Hughes I). Lumley 
 
 V. Wynne 
 
 Hulkes V. D:iy . . . . .. 
 
 Hull V. Haiighan 
 
 Hulme t;. Tenant .. 107, 
 
 Humble D. Glover 
 
 Humphreys »;. Ingledon 
 
 Hungerford i). Clay .. .. 
 
 PAGE 
 .. 39 
 .. 273 
 .. 280 
 64, 84 
 .. 293 
 .. 75 
 .. 300 
 .. 402 
 .. 16 
 .. 299 
 .. 234 
 
 124, 127 
 .. 363 
 .. 286 
 
 218, 219 
 .. 183 
 .. 261 
 .. 80 
 .. 377 
 .. 475 
 ..411 
 .. 476 
 .. 249 
 .. 95 
 .. 217 
 .. 148 
 .. 319 
 .. 384 
 .. 480 
 ..103 
 .. 145 
 .. 316 
 .. 412 
 .. 367 
 .. 364 
 .. 387 
 .. 173 
 .. 199 
 
 148, 167 
 .. 358 
 .. 257 
 .. 100 
 .. 87 
 .. 370 
 16, 283 
 .. 178 
 .. 340 
 .. 423 
 .. 399 
 .. 87 
 .. 212 
 .. 62 
 .. 207 
 .. 265 
 .. 365 
 .. 410 
 .. 125 
 .. 401 
 .. 24 
 .. 314 
 .. 58 
 .. 152 
 335, 40u 
 .. 158 
 .. 413 
 .. 351
 
 TABLE OF CASES. 
 
 XVU 
 
 PAGE 
 
 Hunt «. Bate IJj 
 
 ^ter.%'ockolds :.' 205,207,427 
 Hyde t;. Price ^^^' t£ 
 
 V. Skinner 
 
 Imray v. Magnay 
 Innes v. IMitchell 
 Ivison V. Gassiott 
 
 J. 
 
 Jackson v. Burnham 
 
 . V. Cocker 
 
 V. Woolley 
 
 Jayson v. Rash . 
 Jeffreys v. Small 
 Jenkins v. Briant 
 Jerrard v. Saunders 
 Jervoise (In re) 
 Jesus College v. Gibbs 
 Jewson V. Moulson 
 Johnson v. Compton . 
 . — V. Holdsworth 
 Jones V. Bailey 
 
 V. Foxall 
 
 V. Gibbon 
 
 . ■ V. Jones . . 
 
 V. Smith . . 
 
 V. Thomas 
 
 V. Tripp •• 
 
 Jordan v. Jones 
 Joyce V. De Moleyns . 
 
 K. 
 
 286 
 
 31 
 
 47 l 
 254 
 
 .. 218 
 .. 320 
 .. 208 
 .. 351 
 .. 133 
 1,289 
 .. 73 
 .. 3(i9 
 .. 410 
 .. 259 
 .. 282 
 .. 24 
 .. 62 
 .. 313 
 .. 379 
 285, 387 
 .. 345 
 .. 78 
 .. 329 
 ., 400 
 .. 380 
 
 212 
 
 Lampet's case . . 
 Lancaster y. Evors 
 Lane v. Dighton 
 
 V. Ilorlock 
 
 V. Jackson 
 
 Langhorn v. Harland . . 
 Langton v. Horton 
 Lanoy v. Duke of Athol 
 Larkins v. Paxton 
 Law V. Law 
 
 j;. Wilkin.. 
 
 Lawley v. Hooper 
 
 Layfield v. Layfield 
 
 Lee V. Green 
 
 Legg V. Evans . 
 
 Leigh (Lord) v. Lord Ashburton 
 
 V. Barry . . • • 
 
 Lench v. Lench 
 Levington v. Woton . • 
 Lewis V. Baldwin 
 
 PAGE 
 
 .. isa 
 
 .. 397 
 
 .. 342 
 
 .. 9 
 
 70,71 
 
 73, 252 
 
 330, 344 
 
 ,. 362 
 
 .. 283 
 
 .. 144 
 
 .. 203 
 
 .. 421 
 
 .. 328 
 
 28, 73, 87 
 
 193, 194 
 
 64 
 233 
 408 
 
 478 
 474 
 
 V. Buncombe .. •• " ,,? 
 
 415 
 
 261 
 
 V. N angle 
 
 Lillia V. Airey . . 
 Lincoln v. Windsor 
 Lister v. Turner 
 Litt V. Cowley . . 
 Littleton v. Hibbins 
 
 ..169 
 
 14, 85, 365, 383 
 
 .. 195 
 
 .. 276 
 
 388 
 
 Livesey i;. Harding ''^° 
 
 Lloyd y. Davies ''" 
 
 V. llosbee 
 
 Kay^- Brett .. .. .. •• 3^g 
 
 Keech v. Hall .. 
 Keene's case 
 Kekewich v. Manning 
 
 Kemp «. Westbrook f// 
 
 Kendall (Ex parte) . 
 Kennard v. Futvoye . 
 Kensington (Ex parte) 
 
 Kentt). Pickering :'^'' 
 
 Keys «. Williams .. •• • • ^°^ 
 
 Kidney v. Coussmaker • • "ox's 
 
 Kinderley ?;. Jervis .. •• "I^ 37 
 
 King u. Marissal -. •• 'n'J, 
 
 King's Mortgaged Estate .. •• ^»j 
 
 Kirby v. Potter •• •• ' * onQ 
 
 Kirkman v. Booth .. -- .. ovj 
 
 KnatchbuU v. Fearnhead 
 Knight V. Bowyer 
 
 154 
 217 
 277 
 306 
 359 
 366 
 38 
 244 
 144 
 290 
 421 
 
 321 
 185 
 
 362 
 339 
 339 
 296 
 
 V. Waring 
 
 Loane v. Casey 
 
 Locke V. Crosse •• •• 
 
 Lockhart v. Hardy 
 
 Lockwood V. Ewer 
 
 Lodge V. Lysley • • • • 
 
 London and Eastern Bank (In re) 
 
 Long V. Dennis 
 
 V. Storie .. 
 
 Longuet D. Scawen .. •• •• ^f;^ 
 
 Loomes «. Stotherd .. •• •• -'» 
 
 Lovegrove W.Cooper .. •• ''"''' ^'^ 
 
 Lowe V. Peers .. ^. 
 
 Lowndes «. Cornford *-° 
 
 Lowthian v. Hasel 
 Lunn V. Thornton 
 Luthian r. Leigh 
 Lyde v. Mynn . . 
 Lynch n. Dalzell 
 
 299 
 343 
 389 
 424 
 161 
 
 Pocock 
 Knott V. Cottee 
 Knye v. Moore 
 
 Laing v. Stone 
 
 .. 234 
 351, 425 
 .. 63 
 .. 313 
 .. 145 
 
 207 
 
 M. 
 
 M'Carthy u. Goold 331 
 
 M'Clure D. Dankin ^*^ 
 
 M'Dowall u. Uollister .^^ 
 
 Macfadden v. Jenkyns 
 Mackenzie v. Johnston 
 V. Robinson 
 
 186 
 202 
 365 
 236 
 
 Maclaren w. Stainton ^^" 
 
 Macreth v. Symmons ^** 
 
 Maitland t). Adair "^ " 
 
 Major y. Aukland •• •• "300 
 
 Major 
 
 363 
 
 Malone y. Geraghty .. •• •• ^ 
 
 Maltby y. Russell .. •• •• -"«
 
 XVlll 
 
 Man V. Ricketts 
 
 Manning v. Burgess . 
 
 March v. Russell 
 
 Marriott v. Thompson 
 
 Martin v. Crump 
 
 Martindale i;. Booth 
 
 Mason v. Bogg 
 
 Mather v. Fraser 
 Matheson v. Ross 
 
 Matthews v. Brise 
 
 . ■ V. Wallwyn 
 
 Mead v. Davison 
 Meek v. Kettlewell 
 Megit V. Johnson 
 Merchant v. Driver 
 Messer v. Boyle 
 Metcalf D. Hervey 
 V. Shaw 
 
 TABLE OF CASES. 
 
 PAGE 
 
 213, 217 
 .. 354 
 .. 297 
 .. 278 
 .. 209 
 .. 372 
 .. 299 
 67, 373 
 .. 212 
 .. 181 
 .. 380 
 .. 163 
 185, 190 
 .. 292 
 .. 310 
 .. 62 
 ,. 152 
 .. 260 
 .. 390 
 
 Norton v, Turvill 
 Nugent V. Gifford 
 Nye V, Moseley 
 
 PAGE 
 
 261, 314 
 .. 284 
 .. 145 
 
 Middleton v. Middleton 
 
 Miles a;. Presland .. •• ..58 
 
 Mills V. Barber .. •• •• 173 
 
 ('. Fowkes .. .. •• 212 
 
 Mitchell t-. Reynolds 144 
 
 Mitchelson v. Piper . . . • • • 277 
 
 Montague «. Benedict.. .. •• 260 
 
 Montford (Lord) v. Cadogan . . . • 178 
 
 Moody (Ex parte) .. •■ •• 315 
 
 Moore v. Greg • • 340 
 
 Moores v. Choat 340 
 
 Moreau u. PoUey .. •• •• 399 
 
 Morley V. Bird 230 
 
 . «. Boothby 197 
 
 «. Morley .. .. •• 378 
 
 Morris u. Coates .. .. 94,131 
 
 Mortimore r. Wright . . . . • • 263 
 
 Motteaux «. London Assurance Co. .. 163 
 Moylan(Inre) .• •• ..315 
 
 Murray ?). Barlee .. .. 261,262 
 
 Musson t). May .. •• •• 289 
 
 Myers V. Perigal .. .. •• 138 
 
 N. 
 
 Nairn V. Prowse 342 
 
 Neate v. Duke of Marlborough 50, 56, 60, 61 
 
 Ness V. Angas 251 
 
 V. Armstrong .. •• .. ^21 
 
 Nettleship (Ex parte) 340 
 
 Nevins u. Henderson 256 
 
 Newbury t). Marten .. •■ •• 331 
 
 Newland V. Champion •• .• 317 
 
 Newlands ij. Paynter .. •• 47,94 
 
 Newry Railway Co. v. Moss . . . . 347 
 
 Newton V. Beck .. •• •• 357 
 
 . V. Boodle . . • • . . 52 
 
 . I). Nancarrow .. •• •• 446 
 
 NichollsD. How 4^33 
 
 Nichols t). Judson 279 
 
 Nicholson t). Hooper .. .. •• 376 
 
 . i. Tutin .. •• •• 253 
 
 Norris V. Wright 408 
 
 Northern Coal Mining Company .. 320 
 Northumberland and Durham District 
 Banking Co. (In re) 108, 116, 117, 121, 
 ^ 240, 241 
 
 O. 
 
 O' Fallon t). Dillon 77 
 
 Oglander t>. Baston 132 
 
 O'Kelly V. Bodkin 79 
 
 O'Neal f. Mead 389 
 
 Orr «;. Newton . . •• •• •• 280 
 
 Orrett (Ex parte) 340 
 
 Osborn j;. Morgan .. •• •• 259 
 
 Other v. Iveson .. •• •• 229 
 
 Owen t;. Owen .. .. •• •• 234 
 
 Owens D. Dickenson .. •• •• 262 
 
 Oxenham v. Clapp . . • . • • 327 
 
 Paine v. Meller 
 Palk V. Lord Clinton . . 
 Palmer v. Graves 
 Parker v. Fuller 
 
 V. Webb . . 
 
 Parnell i^. Kingston .. 
 Paterson v. Murphy . . 
 Paynter i). Houston 
 Peacock v. Burt 
 
 V. Monk 
 
 Pearl v. Deacon 
 
 Pearse v. Hewett 
 
 Pearson v. Amicable Society 
 
 — V. Archdeaken 
 
 V. Skelton 
 
 .. 163 
 .. 396 
 .. 273 
 .. 293 
 .. 158 
 ..190 
 185, 186 
 ., 300 
 .. 385 
 .. 261 
 .. 198 
 .. 293 
 10, 189 
 .. 397 
 .. 248 
 
 Pennant and Craigwen Consolidated 
 
 Lead Mining Co. (In re) .. .. HI 
 
 Penny j;. Watts .. •• ..73 
 
 Perry «;. Phelips .. •• 7,277 
 
 Perry -Herrick t). Attwood •• •• 384 
 
 Peter v. Duncombe . . • • . . 64 
 
 Petre (Lord) V. Stubbs .. •• 211 
 
 Petrie v. Bury . . . . • • • • 228 
 
 Phene «. Gillan ■ .. •• •• 370 
 
 Phillips (Ex parte) 315 
 
 D. Pickford 216 
 
 Pierce w. Thornley •• •• •• 260 
 
 Pieters «j. Thompson .. •• •• 221 
 
 Pitman «;. HumtVey .. •• ..10 
 
 Plumer «. Marchant 278 
 
 Plunket «. Penson 294 
 
 Polglase ?>. Oliver .. •• ..211 
 
 Pollen «. Huband 
 
 Ponten v. Page 
 
 Pothonier v. Dawson . . 
 
 Potts V. Warwick and Birmingham 
 
 Canal Co. 
 Powell V. Evans 
 
 V. Graham 
 
 V.Robins 
 
 Powlet V. Herbert . . 
 Prescott V. Tyler 
 
 253 
 367 
 376 
 
 113 
 311 
 286 
 273 
 233 
 387
 
 TABLE OF CASES. 
 
 XIZ 
 
 PAGE 
 
 Preston V. Wilson •• •• ..85 
 
 Price (Ex parte) .• •• •• 388 
 
 II. Carver . . •• •• ..331 
 
 V. Dewhurst .. .. .. 290 
 
 -^ t). Varney .. .. .. IS^ 
 
 Primrose u. Bromley .. .. •• 32 1 
 
 Prince w. Rowson .. .. -• 278 
 
 Pringle v. Hodgson . . . . . . 39!) 
 
 Procter u. Cooper .. •• ..70 
 
 Purdew v. Jackson . . . . • • 399 
 
 Pye (Ex parte) 186 
 
 R. 
 
 Radford V. Young 398 
 
 Rand V. Cartwright .. •• •• 356 
 
 Rankin D. Harvvood .. .. •• 297 
 
 Ravensliaw u. Hollier 4'24 
 
 Rawlins t). Powel .. .. •• 279 
 
 Raworth v. Parker . . . • • • 252 
 
 Rawson V. Samuel .. .. ..196 
 
 Reece i;. Taylor .. .. ..59 
 
 Reech D. Kennegal .. .. •• 307 
 
 Regina r. Law .. •• .■ •• 
 
 u. Ryle.. 
 
 Reimers v. Druce • • . . 26, 
 
 Remmett u. Laurence .. 
 Rex V. Bailey . . 
 
 V. Crumpton • • 
 
 1;. Smith .. 
 
 V. Tarleton 
 
 Rhodes v. Smethurst . . 
 
 Ribeyre (La Marquise de) v. Barclay 
 
 Rice V. Gordon . . 
 
 1). Rice .. •• •• 
 
 Richards v. Cooper 
 
 Richardson v. Greese .. .. 
 
 v. Horton.. .. 293,297 
 
 . —■!;. Jackson .. •• 212 
 
 V. Jenkins .. 301, 303 
 
 Ridgway ?;. Clare 318 
 
 .. 74 
 
 .. 62 
 .. 322 
 .. 401 
 
 90 
 435 . 
 474 
 
 31 
 432 
 486 
 434 
 430 
 314 
 238 
 310 
 385 
 412 
 280 
 
 Right V. Cuthell 
 Risely v, Ryle .. 
 Roberts v. Ball.. 
 Robinson's (Executor's case). 
 Robinson v. Gee 
 
 Sadler's case .. 251 
 
 Saunders v. Wakefield . . . • 308 
 
 Scales V. Maude 1^7 
 
 Scott V. Beecher 390 
 
 t'. Jones .. •• •• •• 314 
 
 f. Lord Hastings .. •• 68 
 
 ,;. Nicoll 412,413 
 
 Robinson.. .. ..311 
 
 -D.Wood .. •• 
 
 Roche (In re) 
 
 Rochfort V. Battersby • • 
 Rogers v. Frank 
 
 . U.Humphreys.. 
 
 . • «. Maule 
 
 . V. Price 
 
 RoUeston v. Morton . . 
 
 Rolt V. Mayor of Gravesend . . 
 
 Rose V. Bowler 
 
 Royal British Bank (In re) .. 
 
 Ruscombe r. Hare 
 
 Russell V. Bangley 
 
 . V. East Anglian Railway Co 
 
 V. Roose . ■ 
 
 V. Scholey 
 
 V. Surman 
 
 V. Tyler . 
 
 Searle v. Lane . 
 Selby V. Selby 
 
 ie3 
 
 271 
 202 
 394 
 276 
 299 
 
 Seton V. Slade • ?38 
 
 Sewell V. Moxsy 
 Shallcross v. Finden . . 
 
 V. Wright . . 
 
 Sharpncll v. Blake 
 Shaw (Ex parte) 
 
 V. Neale .. • • 
 
 V. Pritchard 
 
 Shee V. French 
 Shelmardine v. Harrop 
 Shillito V. Theed 
 
 IS 
 . . 234 
 85, 89 
 .. 280 
 .. 352 
 .. 390 
 .. 308 
 .. 74 
 .. 133 
 .. 307 
 .. 322 
 .. 397 
 .. 203 
 .. 50 
 
 2, 183 
 .. 273 
 .. 310 
 300, 354 
 .. 315 
 7,72 
 .. 405 
 .. 270 
 .. 359 
 .. 144 
 
 Shove v. Webb 419 
 
 Sibthorp v. Moxom 
 Siggers v. Evans 
 Silk V. Prime . . 
 Silver v. Stein .. 
 Simes v. Eyre . . 
 Simpson v. Morley 
 Skip V. Harwpod 
 Slade V. Rigg . . 
 Slingsby's case.. 
 Smith (Ex parte) 
 
 V. Bond . . 
 
 V. Chichester 
 
 — V. Hurst . . 
 
 — V. Selwyn 
 
 211 
 
 .. 253 
 
 . 273, 275 
 
 .. 290 
 
 .. 325 
 
 28, 289 
 
 .. 101 
 
 3C4, 366 
 
 ..228 
 
 ..436 
 
 143,146 
 
 ..358 
 
 31,57,60, 61 
 
 .. 197 
 
 M'Culloch 39 
 
 Ryall V. Rowles . • • • 374, 401 
 
 Smith 31-7, 388 
 
 .. 288 
 .. 420 
 .. 194 
 .. 155 
 .. 186 
 .. 87 
 .. 202 
 .. 252 
 .. 293 
 .. 80 
 .. 409 
 255, 256 
 .. 418 
 .. 277 
 Stainton v. Canon Company 315, 317, 319 
 
 Standford I'. Marshall 261 
 
 Stanley t). Bond .. •• ^^' ^^ 
 
 Stead D. Banks 72 
 
 Steele v. Maunder . . • • • • 414 
 
 Steinman v. Magnus .. •• •• 2o2 
 
 Stephens v. Olive 261 
 
 Stephenson r. Chiswell .. •• 316 
 Stickncy I'. Sewell .. .. ^1 1,408 
 Stimsoni;. Hall 1^6 
 
 V. Tateham 
 
 Smyth V. Bishop of Lincoln . 
 Snee v. Prescot 
 Soulsby V. Neving 
 South (Ex parte J 
 Southern i'. Sidney 
 Spencer v. Spencer 
 Spottiswoode v. Stockdale 
 
 Spyer I'. Hyatt 
 
 Squire v. Ford . . 
 St. George's Building Society 
 St. James's Club (In re) 
 Staft'ord (Earl of) v. Buckley . 
 Stahlschmidt v. Lett
 
 XX 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Stirling t). Forrester .. .. ..95 
 
 Stocks D. Dobson .. .. ..78 
 
 Stonehewer v, Thompson . . . . 61 
 
 Story V. Lord Windsor . . • . 405 
 
 Strachan u. Thomas .. .. .. 205 
 
 Straffon's Executors' case .. •• 321 
 
 Stretton v. Ashmall . . . . . . 408 
 
 Strode v. Blackburne . . . . . . 358 
 
 Strong V. Foster 200 
 
 Sturgis V. Champneys . . . . . . 260 
 
 Styles j;. Guy 310 
 
 Sullivan y. Bishop .. .. .. 153 
 
 Sumner v. Powell . . . . . . 229 
 
 Sumpter v. Cooper . . . . . • 363 
 
 Swain t». IMorland .. .. .. 433 
 
 S way ne t). Sway ne .. .. .. 369 
 
 Tate V. Hibbert 
 
 V. Leithead 
 
 Tapfield v. Hillman 
 Taylor v. Coates 
 V. Oldham 
 
 Temple v. Ecclesiastical 
 Terrell v. Higgs 
 Thomas v. Bennet 
 Thompson v. Derham 
 
 V. Pettitt 
 
 V. Waithman 
 
 Thomson v. Grant 
 
 V. Thomson 
 
 Thorne v. Kerr 
 Thornton v. Ellis 
 
 V. Ford 
 
 Thoroughgood's case 
 Thorpe (Ex parte) 
 
 V. Jackson 
 
 Tibbitts V. George 
 Tidd V. Lister . . 
 Tidswell v. Ankerstein 
 Tipping V. Power 
 
 • V. Tipping 
 
 Tippins V. Coates 
 Todd V. Kellage 
 
 V. Studholme 
 
 Tolson V. Collins 
 Tooker v. Tooker 
 Tourle v. Rand 
 Towers v. Moor 
 Trafford v. Boehm 
 Tucker v. Wilson 
 Tufton V. Harding 
 Tullett V. Armstrong 
 Tunstall v. Trappes 
 Turner v. Cox . . 
 
 V. Davies 
 
 Turwin v. Gibson 
 Twyne's case .. 
 
 V. 
 
 Vaughan v. Vanderstcgen 
 V, Walker 
 
 Commissioners 
 198, 
 
 202, 
 310, 
 
 360, 365, 
 
 260, 
 272, 
 
 191 
 187 
 343 
 332 
 264 
 481 
 476 
 279 
 
 85 
 344 
 208 
 278 
 278 
 312 
 318 
 456 
 
 76 
 340 
 317 
 183 
 401 
 159 
 389 
 389 
 324 
 302 
 297 
 279 
 428 
 358 
 324 
 182 
 366 
 251 
 400 
 
 61 
 294 
 199 
 195 
 
 30 
 
 262, 29 1 
 .. 314 
 
 
 
 PAGE 
 
 Vernon v. Smith 
 
 .. 
 
 .. 160 
 
 Vertu V. East Anglian Railway 
 
 .. 181 
 
 Vickers 0. Cowell 
 
 , . 
 
 413, 414 
 
 Vincent u. Godson 
 
 , , 
 
 .. 296 
 
 Vint V. Padget 
 
 , , 
 
 .. 361 
 
 Vulliamy v. Noble 
 
 • • 
 
 .. 316 
 
 w. 
 
 Walker t). Reeve .. .. 
 
 V. Symonds 
 
 Walsh y. W'hitcomb .. 
 Walton's Estate (In re) 
 W'alton and Hue (Ex parte) .. 
 Wankford v. Wankford . . 
 
 Warburton v. Hill 
 Ward V. Audland 
 
 V. Painter 
 
 Warden v. Jones 
 Wearing v. W'aring 
 Warren v. Davis 
 Wartnaby v. Wartnaby 
 W^arwick v. Bruce 
 Wastell V. Leslie 
 Waterfall v. Penistone 
 W'atson V. Knight 
 
 V. Parker 
 
 Watts (In re) .. 
 
 V. JefFreyes 
 
 V. Porter.. 
 
 Wayne v. Hanham 
 W^earing v. Ellis 
 Webb V. Russell 
 W'ebster v. Spencer 
 Wells II. Gibbs . . 
 W^estbrooke v. Blythe 
 W'estby v. W^estby 
 Wheatley v. Bastow 
 
 V. Purr 
 
 Wheelton v. Hardisty 
 Whichcote v. Lawrence 
 Whitbread (Ex parte) 
 White V. Hillacre 
 W'hitehouse v. Partridge 
 
 158 
 233 
 10 
 322 
 322 
 306 
 
 , . 59, 68, 369 
 
 187, 190, 348 
 r. 89 
 ..14 
 ..408 
 .. 273 
 ..266 
 ..264 
 ..369 
 ..67 
 ..253 
 2 
 
 ..234 
 48, 58 
 .. 67 
 
 .. 367,414 
 . . 90 
 ..335 
 .. 311 
 ..58 
 24, 26 
 .. 264 
 ..388 
 
 .r 186,291 
 .. 160 
 .. 353 
 ..340 
 ..282 
 .. 193 
 
 Whitfield t). Prickett 58 
 
 Whitla «. Halliday^ 413 
 
 Whitmore i;. Einpson .. .. ..67 
 
 V. Oxborrow . . . . 1 
 
 V. Ryan . . . . . . 474 
 
 Whittem y. Sawyer .. .. .. 260 
 
 WHiittet's case .. .. .. .. 241 
 
 Whitwick w. Jermyn .. .. ,. 274 
 
 Whitvvorth «. Gaugain. . .. .. 71 
 
 Whyteu. Rose 290 
 
 Wich D, Parker. . .. .. .. 15 
 
 Widdowson v. Duck . . . . . . 409 
 
 Wilde «;. Clarkson 142 
 
 Wilkins t). Fry 92,133 
 
 Wilkinson r. Henderson .. .. 316 
 
 Williams (Ex parte) .. .. ..98 
 
 V. Bagot .. .. ..451 
 
 «. Bosanquet .. 158,337 
 
 D.Chambers 218 
 
 ?;. Everett .. .. ..183 
 
 D.Lake 197
 
 TABLE OF CASES. 
 
 XXI 
 
 PAGE 
 
 Williams v. Lambe . . . . . . 386 
 
 V. Nixon 233 
 
 r. Owen .. .. 334,338 
 
 1;. Powell 313 
 
 V. Roberts . . . . . • 46 
 
 V. Thorp 189 
 
 Wilmer v. Currey 229 
 
 Wilmotv. Pike 342 
 
 Wilson t). Viscount Curzon .. •• 257 
 
 V. Lady Dunsany 7, 26, 283, 304 
 
 t). Paul 277 
 
 Wilton i;. Jones .. .. 413,415 
 
 Wiltshire v. Rabbits . . . . 342, 427 
 
 Winch V. Keeley 180 
 
 Windham t>. Jennings . . .. .. 299 
 
 Wiseman v. Westland . . . . 358, 359 
 
 Withers v. Bircham . . . . • . 209 
 
 «;. Kennedy .. .. .• 273 
 
 Withy j;. Cottle 420 
 
 WolJaston V. Hakewill .. ..308 
 
 Wood f. Dwarris .. .. ..160 
 
 Woodland «. Fuller 87 
 
 PAGE 
 
 Woodyer v. Gresham . . . . . . 132 
 
 Woolrych's case . . . . . . 266 
 
 Worthington v. Morgan . . . • 384 
 
 Wright 0. Bell 190 
 
 W.Gerard 127 
 
 V. Hunter 202 
 
 u. Morley 199 
 
 1). Rose.. .. .. •• 353 
 
 ' V. Simpson .. .. .. 199 
 
 V. Ward 428 
 
 Wrixon v. Vize . . . . . . 391 
 
 Wynch «. Grant .. .. .. 178 
 
 y. 
 
 Yates «. Aston . . .. .. .. 166 
 
 V. Humbly 412 
 
 Yescombe v. Lander . . . . . . 62 
 
 Yewens t). Robinson .. .. ..90 
 
 Younghusband v. Gisborne . . 1, 39
 
 ( xxii ) 
 
 ERRATA ET CORRIGENDA. 
 
 Page 1, note (g),for " Osborne," read "Gisborne.'* 
 „ 14, note {s),for " Kennett," read " Kennet." 
 
 „ 30, note {u),for " Kennet t;. Cadogan," read " Cadogan v. Kennet." 
 „ 41, lines 14, 15, for " Palatine Equity Courts," read '' Lancaster Chancery.' 
 „ 41, line 17, after " possession," insert " in both Palatine Chanceries." 
 „ 84, line 36, /or " that jurisdiction," read " the jurisdiction of Chancery." 
 „ 85, line 24, /or " it," read "the land." 
 ,, 145, line 3, /or " is good," read " it is good." 
 „ 182, line 26, /or " furnish," rearf " furnishes." 
 „ 184, line 13, after "assigned," add "voluntarily." 
 ,, 211, line ^5, for "county," read " country." 
 „ 225, line 11, after " be," insert " in." 
 „ 252, line 2,/or " thirdly," read "further." 
 „ 260, note {y\for " Tullet," read " Tullett." 
 „ 278, line 27, for " affects," read " effects." 
 „ 322, line 3, for "las treferred," read " last referred." 
 „ 332, line 1,/or "adults," read "adult." 
 ,, 336, line 25, after " case of," insert '' a." 
 
 „ 339, note (y), before " 2 P. Wms.," read " Brace v. Marlborough." 
 „ 377, note {r),for " Grison," read " Guion." 
 
 „ 386, note {h),for " Att.-Gen. v. Williams," read " Att.~Gen. v. Wilkins." 
 „ 412, line 27, for " of," read " in." 
 „ 416, line 6, for " trustees'," read " trustees." 
 
 „ 442, in 2nd column, " Procedure" (3rd line), after " 1854," add " and 1860." 
 „ 472, i?i last line but o/ie, after " 1854," add " and I860." 
 „ 482, in 2nd column, " Procedure" (20th line),/or " Courts," read " Court."
 
 THE LAW 
 
 OF 
 
 DEBTOR AND CREDITOR. 
 
 INTRODUCTION. 
 
 ON DEBTS GENERALLY. 
 
 A Debt is not a contract, but the result of one {a). This seems What a Debt 
 the broadest definition of the word. It is in this sense that '^' 
 Breaches of Trust (h) and Devastanits (c) are considered Debts, in England; 
 and that a Covenantee is a Specialty Creditor of the Covenantor, 
 though the time for payment has not arrived, (and therefore 
 before breach,) provided that it is sure to arrive (c?); the Debt 
 in such a case being " dehitum in prcBsentl, solvendum in fiituro." 
 Nay, the mere contingency of a liability constitutes a Debt (e), 
 though it is not sufficient to support a Creditor's suit(/), and 
 this latter class is known as that of " Contingent Debts." Thus, 
 a Judgment is a Debt, though payable at a future day, and 
 subject to be defeated (g). In some cases indeed the result 
 follows so simultaneously upon the contract, as to be hardly 
 distinguishable from it. Thus, in the case of goods sold and 
 paid for over the counter, the Debt and Contract seem contem- 
 poraneous. 
 
 The above definition, however, is too loose for practical pur- 
 poses. In its ordinary signification, a Debt has reference to a 
 Contract which, in its inception, concerns money; and a Creditor 
 may be defined therefore, with perhaps sufficient accuracy, as 
 
 (a) 2 Blackst. Coram. (Steph.) 135, C. C. 13. 
 
 n. («), 3rd ed. (e) 12 & 13 Vict. c. 106, s. 177. 
 
 (6) Williams on Executors, 916, (/) Jenkins r. Briant, 6 Sim. 603. 
 
 5th ed. (g) Younghusband v, Osborne, 1 De 
 
 (c) Charlton v. Low, 3 P. Wms. 331. G. & Sm. 209. 
 
 (d) Whitmore t;.Oxborrow, 2 Y. & C.
 
 % INTRODUCTION. 
 
 one to whom, either by express or implied agreement, i. e. by a 
 promise made on one side, and assented to on the other (//), an 
 ascertabied sum of money is, or will or may become, due ; for if 
 the demand is of uncertain amount, it is described, not as a Debt, 
 but as a claim for Damages (i). It is not essential to a Debt, 
 that any consideration of money or money's worth should have 
 moved from the Creditor. It may, e.g. if secured by deed, be 
 a Voluntary one ; and, as such, support a Creditor's suit {k). 
 However, the Voluntdry Assignee of a Creditor is not a Cre- 
 ditor, so as to entitle him to maintain such a suit(/). Even the 
 above definition is only approximately correct, e. g. the term 
 " agreement" is rarely used by us, except in relation to contracts 
 not under seal (/w) : and the difficulty of obtaining a perfect 
 definition appears increased by the circumstance just adverted 
 to, that no consideration need necessarily have flowed from the 
 Creditor in order to constitute an obligation in the Debtor to 
 repay him. 
 in France By the French law, the terms " Debtor" and "Creditor" are 
 
 applied to the parties who contract any species of obligation. 
 " To constitute an obligation, it is necessary there should be 
 at least two persons, the person who contracts the obligation, 
 and the person in whose favour it is contracted. The former is 
 called the debtor, the latter the creditor" (w). 
 Division of Debts are classified, by the Law of England, according to the 
 
 su ject. form of the instrument by which they are secured, or the mode 
 
 in which they are evidenced; and thus we obtain the great three- 
 fold division of Debts — 
 
 I. By Judgment. 
 II. By Specialty. 
 III. By Simple Contract. 
 These three species of Debts we propose now to consider, and 
 that in two divisions of time, viz. : — 
 
 1 . As they confer Rights during the life of the Debtor. 
 
 2. As they confer Rights after his death. 
 
 Besides the above, there are indeed the, still legal. Debts by 
 Statute Merchant, and Statute Staple, and Recognizances in the 
 
 {h) 2 Black. Comm. (Stepli.), 49. (m) Cliitty on Contracts (otli ed.), 
 
 (i) Ibid. 131. p. 4. 
 
 (A-) Watson v. Parker, li Beav. 283. (h) Pothier on Obligations (Evans), 
 
 (/) Sewell V. Moxsy, 2 Sim., N. S. vol. 1, p. 74, ed. 180G. 
 189.
 
 ON DEBTS GENERALLY. 
 
 nature of Statutes Staple; but they are obsolete, and may there- 
 fore be safely omitted in a practical treatise, except Recognizances 
 to the Crown, the only species of Recognizances (besides Judg- 
 ments on Warrants of Attorney by Insolvents within 1 & 2 Vict. 
 c. 110, s. 87, which have the force of Recognizances) at this day 
 in actual operation, which, together with other Crown Debts, 
 will be separately considered. 
 
 With regard to Mortgage Debts, they are, it is true, usually, 
 and (speaking correctly) properly, classed under Specialty or 
 Simple Contract Debts, according as the Mortgage deed, if there 
 be one, does or does not contain a Bond or Covenant for pay- 
 ment. But as they essentially differ from both those classes of 
 Debt, by reason of the specific interest given to the Creditor in 
 the Mortgaged property, it seems more proper to consider them 
 also by themselves (o). 
 
 Annuities also, although within the above definition of Debts, 
 have also certain peculiarities, which will render their separate 
 consideration convenient. 
 
 (o) If the above classification of 
 debts be a correct one, that sometimes 
 given of them under five heads (e. g. 
 Wms. Personal Property, p. 101, 3rd 
 ed.) would seem hardly a logical one, 
 
 Crown debts not being, in their nature, 
 distinct from specialty or simple con- 
 tract ones, nor specialty debts in which 
 tlie heirs are bound from those in which 
 they are not bound. 
 
 B 2
 
 DIVISION I. 
 
 JUDGMENT DEBTS -SPECIALTY DEBTS - SIMPLE 
 CONTRACT DEBTS-AS BETWEEN SUBJECTS. 
 
 Part I. 
 
 JUDGMENT, SPECIALTY, AND SIMPLE CONTRACT, DEBTS, 
 DURING THE LIFE OF THE DEBTOR. 
 
 Book I. 
 
 JUDGMENTS. 
 
 CHAPTER I. 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 1. What is a Judgment. 
 
 2. yVUat is not one luithin 1 c^ 2 Vict. c. 
 
 110, 
 
 3. Judgments Non-Adverse and Adverse. 
 
 4. Warrant of Attorney to confess Judg- 
 
 ment. 
 
 5. Letters and Powers of Attorney. 
 
 6. Cognovits. 
 
 7. Judge's Orders. 
 
 8. Judgment by Default. 
 
 Section L 
 Creation of a Judgment DeU. 
 
 9. Judgment on a Nolle prosequi. 
 
 10. Judgment of Non prosequitur. 
 
 11. Judgment on a Non-suit. 
 
 12. Judgment on a Retraxit. 
 
 13. Judgment on Verdict. 
 
 14. Judh'ient on Demurrer. 
 
 15. Judgment on Nut tiel Record. 
 
 16. Judgment on Trial without Pleadings. 
 
 17. Fraudulent Judgments. 
 
 I PROPOSE first to consider Judgment Debts,-a large and in- 
 creasing class of rights, to which numerous decisions both at 
 Law and in Equity, are continually lending additional import- 
 ance, and which seems never yet to have been thoroughly exa- 
 mined. It will therefore be necessary to set them forth with 
 some particularity. _ 1. 
 
 Taken in its widest sense, a Creditor by Judgment is one who ^Vhat a Jml^- 
 has obtained in his favour the sentence of any Court oi competent '"^" 
 Jurisdiction; but in the sense in which he is entitled to the Generally. 
 privileges to which the modern Statute Law has admitted him, he
 
 6 JUDGMENTS BY AND AGAINST ONE. 
 
 Within 1 & 2 must be one who answers the following description : — He must 
 Vict. c. 1 10. j^^^g recovered Judgment in one of the Superior Common Law 
 Courts at Westminster, or in the Court of Common Pleas at 
 Lancaster, or in the Court of Pleas at Durham ; or must have 
 obtained a Decree or Order of some Court of Equity, or a Rule 
 of some Court of Common Law, or an order of the Lord Chan- 
 cellor, or of [the Court of Appeal substituted for (a)] the Court 
 of Review, sitting in Bankruptcy, or of the Lord Chancellor, 
 or of the said Court of Appeal, sitting in Lunacy, for the pay- 
 ment of a sum of money, costs, charges or expenses (b). 
 
 Official Assignees in Bankruptcy who have obtained an order 
 of any Court of Bankruptcy for the payment of a sum admitted 
 to be due to a bankrupt upon a balance of account (c) ; and 
 Creditors' Assignees in Bankruptcy (to the amount of the Bank- 
 rupt's debts appearing due on the accounts relating to his estate), 
 when such accounts have become Records of the Court (c?); and 
 every Creditor of a Bankrupt after proof of his debt admitted (e) ; 
 and any one who has obtained an order of any Court of Bank- 
 ruptcy for the payment of costs in any matter before it(/), are 
 also Judgment Creditors within the 1 & 2 Vict. c. 110. As- 
 signees or Creditors of a Bankrupt who have obtained a sealed 
 certificate, until he obtains a regular certificate, are his Judgment 
 Creditors to the extent of being entitled to take his body in 
 execution (g). 
 
 It is remarkable that the words "final Judgment" occur only 
 once in the Act (1 & 2 Vict. c. 110) {h), and that not in reference 
 to Superior Court Judgments. Such [i. e. final Judgments], 
 however, and not interlocutory ones, are clearly intended through- 
 out the Act, and are here alone to be treated of (/s). 
 
 What constitutes a final Judgment in Liferior Courts generally 
 will depend upon the rules which the Judges of those Courts, 
 or of the Superior Courts of Common Law, are empowered to lay 
 down for their procedure. 
 
 (New) County Courts Judgments are always final (i). 
 New York A Judgment is defined by the New York Code to be " the 
 
 final determination of the rights of the })arties in the action" (j). 
 Every Judgment therefore in that State is final. 
 
 (a) See Table of Courts, Appendix. {g) Ibid. s. 2-57. 
 
 (6) 1 & 2 Vict. c. 110, ss. 11, 18. {h) Viz. s. 22. As to what judgments 
 
 (c) 12 & 13 Vict. c. 106, s. 123. are final, post, pp. 11, 13, 14. 
 
 {({) Ibid.s.257. (t) Austin «. Mills, 23 L. J., Exch. 40. 
 
 (e) Ibid. U) Code Civil, p. 313. 
 
 (/) Ibid. s. 219. 
 
 Judffnieiits.
 
 CREATION OF A JUDGMENT DEBT. 
 
 To the above general description of a Judgment Creditor the 
 following explanatory remarks seem necessary: — 
 
 If the Judgment be a Judgment strictly so called, i. e. of any 
 of the Superior Common Law Courts hereinbefore mentioned, 
 it always necessarily is for the payment of money ; for wliether 
 the action have been for debt or damages, it results, if suc- 
 cessful, in a Judgment for the plaintiff that he do recover, (juod 
 recuperet, the debt or damages, or, if unsuccessful, in a Judg- 
 ment for the defendant for costs ; but if it be a Decree, Order 
 or Rule it must, in order to rank as a Judgment, be one for 
 the payment of a sum of money, costs, charges or expenses. 
 Therefore a Common Law Master's allocatur of costs under 6 & 7 What is not 
 Vict. c. 73 (the Attornies' Act), being a taxation only, and not an withiif" &'2 
 order {or payment of them, and a fortiori a mere ruleiox taxation Vict. c. no. 
 of costs, is not a Judgment (k). And a Decree directing an 
 account (even though it goes on to direct payment of the amount 
 found due on such account) is not a Judgment, until the certifi- 
 cate is confirmed which finds the amount (/). 
 
 Nor is a common foreclosure Decree a Judgment, for it is not 
 for the payment of money (m) ; nor a Decree, declaring that the 
 defendant is liable to make good a specific sum to an estate admi- 
 nistered in another suit, although the Decree does not reserve 
 " further directions," and is to that extent therefore final (??). 
 
 But a Decree for specific performance ordering the defendant 
 to pay the purchase-money, interest and costs, when ascertained, 
 is a Judgment (o). 
 
 The Decree, Order or Rule must also be for the payment of 
 money, costs, charges or expenses to the party obtaining the 
 same{p). 3 
 
 A final Common Law Judgment is either adverse or non-ad- Judgments 
 verse. Non-adverse, as where the Debtor confesses Judgment on 
 a Warrant of Attorney, or on a cognovit actionem, or where Judg- 
 ment is for the plaintiff on a Judge's Order, or on a non sum 
 informattis {i. e. where, instead of pleading, the defendant's attor- 
 ney says he is not informed of any answer to be given to the 
 
 {k) Shaw V. Nealc, 6 IIo. Lds. Cas. Beav. 293, 299. 
 581. (n) Garner t>. Briggs, 6 W. R. .378. 
 
 (l) Perry v. Phelips, 10 Ves. 40; (o) Duke of Beaufort v. Phillips, 1 
 
 Chadwick v. Holt, 4 Weekly Reporter, De G. & Sm. 321. 
 791. ip) Crowther v. Crowther, 4 W. R. 
 
 {m) Wilson v. Lady Dunsany, IS 351. 
 
 non-adverse ;
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 adverse. 
 
 4. 
 What a War- 
 rant of Attor- 
 ney is. 
 
 action) (^), though this last-named form of Judgment does not 
 now occur in practice. Adverse, as where Judgment is for the 
 plaintiff, on default either of appearance, or of a plea, or of a 
 rejoinder (rebutter, &c.), in all which cases it is called Judgment 
 by nihil (licit (r), or where the plaintiff at once signs final Judg- 
 ment in an action on a bill of exchange, where the defendant has 
 not (as he may) obtained leave to appear (s); or where Judgment 
 is for the defendant, on a nolle prosequi, or on a non prosequitur, 
 or on a nonsuit, or on a retraxit ; or where Judgment is either 
 for the plaintiff or defendant on verdict, or on demurrer to the 
 declaration, plea, replication, rejoinder, &c., or on a nul tiel 
 record, or on trial without pleadings. 
 
 Of course the defendant takes nothing by his Judgment in 
 any of the above cases, but costs only. 
 
 A Warrant of Attorney must be in writing {t), but need not, 
 unless it be a "release of errors "(m), be under seal. It is an 
 authority from the Debtor or intended Debtor — for the relation 
 of Debtor and Creditor need not be existing at the time it is given 
 — to certain attornies to appear for him in Court, and receive a 
 declaration in an action for the amount of the Judgment Debt, 
 and to confess Judgment thereon. Like the penalty of a bond, it 
 usually is for double the sum due or intended to be secured, and 
 is accompanied by a " defeazance," which must be on the same 
 paper or parchment, and " defeats " the full operation of the 
 Warrant by declaring, that it is given only as a security for the 
 smaller sum and interest, and that execution shall not issue until 
 default {x). 
 
 An attorney of a Superior Court, and expressly named by the 
 Debtor, must attend at his request to inform him of the nature 
 and effect of such Warrant before its execution, and must sub- 
 scribe his name as a witness, declaring himself to be the debtor's 
 attorney, and that he signs as such (y). The warrant (with the 
 " defeazance") shall, if the holder of it think fit, be filed in the 
 Queen's Bench within twenty-one days of its execution, the 
 officer of which shall keep a list and index open for search on 
 payment of a fee {£). But the warrant must be filed before 
 
 {q) Stephen on Pleading, 5th ed. p. 
 120. 
 
 (r) Ibid. 
 
 («) 18 & 19 Vict C.C7, s. 1. 
 
 (<) Archbold's Practice, by Chitty, 
 9th ed. (Prentice), 887. 
 
 (m) Ibid. 890. 
 (j-) Wms. P. P. 89. 
 (i/) 1 & 2 Vict. c. 110, s. 9. 
 (x) 3 Geo. 4, c. 39, s. 1 ; 6 & 7 Vict, 
 . 66.
 
 CREATION OF A JUDGMENT DEBT. » 
 
 Judgment on it is signed (a); and (if given by a trader) within 
 twenty-one days of its execution (6). 
 
 The provisions of 3 Geo. 4, c. 39, as to fihng warrants, is 
 extended to warrants by Insolvents within the Imprisoned 
 Debtors Act, or Protection Acts (c). 
 
 A warrant of attorney to secure money is liable to the same Stamp on. 
 ad valorem duty as a bond for the like purpose, except where the 
 payment of the money has been already secured by an instrument 
 which has paid the proper ad valorem duty exceeding five shil- 
 lings, in which case the warrant is chargeable with a five shilling 
 duty only id). 
 
 There has been a conflict of judicial opinion, whether if the 
 warrant were executed before August 10, 1854, and a higher rate 
 of interest than £5 per cent, were secured by it, a Judgment 
 entered up thereon would be void, as usurious, under 2 & 3 
 Vict. c. 37, as being a forbearance of money on the security of 
 land; the Common Law Courts thinking it would not be(^). Is not usurious. 
 But as to warrants executed since August 10, 1854, and Judgments 
 entered up upon them, any amount of interest is clearly legal(/). 
 If a warrant of attorney be given to several and one dies, the 
 survivor may obtain leave from the Court to enter up Judg- 
 ment (^), and if it be to enter up Judgment at the suit of A. his 
 heirs, executors, &c. the Court will give his representatives leave 
 to enter it up (A). 
 
 An infant cannot bind himself by a warrant of attorney. 
 Where he joins an adult in one, it is void only as to him (i). g 
 
 Whilst we are upon the subject of instruments of Attorney, we Letters and 
 may say a few words on Letters and Powers of Attorney. A ^vttorney. 
 Letter of Attorney is a deed {k) or writing containing an authority 
 from one person to another to do any lawful act in his stead, as 
 to receive rents, give seisin of land, sue a third person, sell or 
 receive the dividends of stock, &c. (l) ; for where a man has a 
 power as owner, or in his own right, to do a thing, lie may do it 
 by attorney (m). 
 
 (a) Gen. Reg. H. T. 1853, r. 25. {g) Archb. Pr. 895. 
 
 (6) 12 & 13 Vict. c. lOG, s. 136. (A) Coles v. Hadcn, Barnes' Rep. 41'. 
 
 (c) 1 & 2 Vict. c. 110, s. 60; 7 & 8 {/) Archb. Pr. 1171. 
 
 Vict. c. 96, s. 20. (A) Co. Litt. 52 a. 
 
 {d) 13 & 14 Vict c. 97, schedule, (/) Tomlins' Law Diet. tit. " Letter 
 
 title, " Warrant of Attorney." of Attorney.' ' 
 
 (c) Lane v. llorlock, 4 Dow. & L. (m) Comyn's Dig. Actorney, C. (I). 
 
 408 ; 5 Ho. Lds. Ca. 580 ; Bond v. Bell, A Power of Attorney is unnecessary to 
 
 6 W. R. 164. empower another to purchase stock. 
 
 (/).17 .;: 18 Vict. C.90. 
 
 B O
 
 novit IS. 
 
 10 JUDGMENTS BY AND AGAINST ONE. 
 
 Powers of Attorney seem to be much the same as Letters of 
 Attorney, but need not be even in writing. A verbal authority 
 will do (n). A Power of Attorney is a Common Law Power (o). 
 Letters or powers of attorney are either special or general ; if 
 special, the authority under them is gone when the specific act is 
 done. At Laic, it seems doubtful whether a power of attorney 
 can be irrevocable ; and it is clearly revoked by the death of the 
 grantor (p). In Equity, however, if given for a valuable consi- 
 deration, it is not revocable {q), and if to receive and deal with 
 after-acquired property, would not be revoked, even by the 
 grantor's death {f). An irrevocable power — irrevocable even by 
 the grantor's death — may be also granted, in Equity, upon the 
 voluntary assignment of a cliose in action (s). They are generally 
 to be pursued strictly, therefore a power to three cannot be exe- 
 cuted by tv/o(^). Bona fide payments by trustees or executors, 
 under a power, are good, though the donor be dead, or has re- 
 g voked \i{u). 
 
 What a Cog- A Cognovit actionem is a written agreement by which the 
 
 Debtor undertakes to confess the action, usually on condition 
 that he shall be allowed a certain time for payment. The same 
 formalities are required, as to execution and filing, as in the case 
 of warrants of attorney (u). If it contain terms of agreement to 
 the amount of £20, it must be stamped like an agreement {x). 
 - An infant cannot bind himself by a cognovit{y). 
 
 What a Judge's A Judge's order for staying proceedings is obtainable by 
 consent of both parties, and authorizes the plaintiff to sign 
 final Judgment and issue execution in the event of the debt and 
 costs not being paid within a certain time {z). A Judge's order 
 and a cognovit, unlike a warrant of attorney, presuppose, it will 
 be observed, an action actually commenced. A Judge's order is 
 a Judgment by nihil (licit, and becomes such on being taken to 
 a Master of the Court, and on the Judgment thereon being 
 signed by him (a). The defendant's consent does not require a 
 
 (n) Wms. P. P. 106, citing Heath v. (u) 22 & 23 Vict. c. 35, s. 26. 
 
 Hall, 4 Taunt. 326. (v) 3 Geo. 4, c. 39, s. 3 ; 6 & 7 Vict. 
 
 (o) 1 Sugden on Powers, 1, 7th ed. c. 66 ; 7 & 8 Vict. c. 96, s. 20 ; 12 & 13 
 
 Ip) Miller & Collier on Bills of Sale, Vict. c. 106, s. 136 ; Gen. R. H. T. 1853, 
 
 p. 50. r. 25; 1 & 2 Vict. c. 110, s. 9 ; Archb. 
 
 (q) Prideaux's Prec. in Convey. 688, Pr. 879. 
 n. (p) ; Walsh v. Whitcomb, 2 Esp. 565. (.r) Pitman v. Humfrey, 2 Tyr. 500 ; 
 
 (r) Miller & Collier on Bills of Sale, 23 & 24 Vict. c. 15, schedule. 
 p. 50. (y) Archb. Pr. 1171. 
 
 (s) Pearson v. Amicable Society, 7 (a) Ibid. 913. 
 
 W. R. 629. («) Ibid. 914. 
 
 (<) Com. Dig. Attorney, C. (11). 
 
 order is.
 
 CREATION OF A JUDGMENT DEBT. 11 
 
 stamp (h). Tlie order may be filed under the 3 Geo. 4, and 
 (J & 7 Vict, where the defendant is a trader ; secus where he is 
 insolvent (c). g 
 
 Judgment by default is final in all those cases in which the Whnt Jud^- 
 writ of summons may be specially indorsed with the parti- ^^'j^ jg^ 
 culars (d) {i. e. in all cases where, the defendant being within 
 the jurisdiction, the claim is for a Debt, — and therefore in all cases 
 now under consideration, — or liquidated demand in money arising 
 upon a contract express or implied) (e). 
 
 A defendant to a Westminster or a Palatine action (/), re- 
 sident within the respective jurisdictions of the Westminster or 
 Palatine Courts, and whether he be a British subject or a 
 foreigner, has eight days to "enter an appearance" from the ser- Default of ap- 
 
 vice of the writ (o). Service must be, where practicable, personal; P^''''"^"'^^- 
 
 , ^ r -, 1 • • . Defendant in 
 
 (but the Court or a Judge may, under certain cu'cumstances, thejurisdic- 
 
 dispense with the personal service and allow the plaintiff to "°"- 
 proceed as if it had been effected) {h). Where the action is for 
 Debt (i. e. therefore in all cases of the nature we are now con- 
 sidering) the amount of the Debt, and of the costs claimed, and 
 the day of the month and week of service, must be indorsed on 
 the writ (i). 
 
 If the action be for Debt or liquidated demand, and the writ where writ 
 has been specially indorsed (which it is optional, not compul- |s specially 
 sory, with the plaintiff to do) (A), according to Form No. 4, in 
 Schedule A., to the Common Law Procedure Act, 1852, the 
 plaintiff may, on the " non-appearance" of the defendant, and on 
 filing an affidavit of personal service, (or of the order dispensing 
 with it) and a copy of the writ, at once sign "final Judgment in 
 default of appearance ;" (l) and, after eight days from the last 
 day for " appearance," may issue execution thereon (m). 
 
 If the writ is one which might have been, but has not been Where not. 
 specially indorsed, the plaintiff may, on filing an affidavit of 
 personal service, (or of the order dispensing with it,) and a copy 
 of the writ, file a declaration, indorsed with a notice to plead in 
 eiglit days, and, in case of non-appearance within such time, sign 
 Judgment for non-appearance (n) ; and such Judgment is final, 
 provided the amount claimed has been endorsed on the writ(o). 
 
 (b) Ibid. (;*) C. L. P. Act, 1852, s. 17. 
 
 (c) 12 & 13 Vict. c. 106, s. 137. (/) Ibid. ss. 8, 15. 
 {d) C. L. Proc. Act, 1852 (15 & 16 (k) Ibid. s. 25. 
 
 Vict. c. 76), s. 93. (/) Ibid. s. 27. 
 
 (e) Ibid. s. 25. (m) Ibid. 
 
 (/) Ibid. s. 229. («) Ibid. s. 28. 
 
 (g) Archb. Pr. 190. (o) Ibid.
 
 12 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 A British sub 
 ject, 
 
 A foreigner. 
 
 Defendant out If the defendant to a Westminster or Palatine action, being 
 of jurisdiction. ^ British subject, is resident out of the respective jurisdictions 
 (Scotland and Ireland are not, for this purpose, out of the 
 Westminster jurisdiction) {p), the writ shall be in the Form 
 No. 2 in Schedule A., and shall state that in default of appear- 
 ance the plaintiff may, by leave of the Court or a Judge, proceed 
 to Judgment and execution : and on such default he may so 
 proceed. The time for the defendant's "appearance" in such a 
 case will be regulated by the distance of his residence from 
 England, and the Court or a Judge may give the plaintiff liberty 
 to proceed and direct the mode of proceeding {q). But the 
 cause of action must have arisen within the jurisdiction, and 
 the plaintiff must prove the amount of the debt before a Master, 
 or before a Jury on a writ of enquiry before the Sheriff (/•). 
 It does not matter where the contract was made, provided it has 
 been broken within the jurisdiction (s). 
 
 The same is law where the defendant to a Westminster or 
 Palatine Judgment is a foreigner resident out of the respective 
 jurisdictions, except that the writ shall be according to the Form 
 No. 3 in the said Schedule A., and that the plaintiff shall serve a 
 notice also in the said Form, which service shall have the effect 
 of service of the writ. 
 
 Judgment by default for want of a plea in bar may be signed 
 want of a plea. ^^ ^^^ plaintiff, if the defendant has failed to deliver a plea 
 within the time allowed him to do so, or has delivered one which 
 may be treated as a nullity {t). The time for pleading a plea in 
 bar is, unless extended, eight days (m). Where the defendant is 
 under terms to plead issuably, and pleads a non-issuable plea, 
 the plaintiff may treat it as a nullity (v). These terms are im- 
 posed on him when he requires further time to plead and obtains 
 a Judge's order for that purpose. An issuable plea is one upon 
 which a decision on a demurrer or by a jury would determine 
 the action upon the merits {iv). 
 
 The time allowed a defendant to plead, in abatement, is four 
 days (exclusive) after the filing or delivery of the declaration {x). 
 If the defendant pleads either wholly or in part after that time, 
 without leave of the Court or a Judge, the plaintiff may sign 
 Judgment at the expiration of the time allowed for pleading in 
 
 Default for 
 
 In bar. 
 
 In abatement. 
 
 (/)) Ibid. 
 
 (q) Ibid. 
 
 (r) Ibid. s. 19. 
 
 {s) Fife V. Round, 30 L. T. 291. 
 
 (0 Archb. Pr. 258. 
 
 (?0 C. L. P. Act, 1852, s. 63. 
 (v) Archb. Pr. 259. 
 {w) Ibid. 218. 
 (.r) Ibid. 851.
 
 1Q 
 
 CREATION OF A JUDGMENT DEBT. 
 
 har iy). Judgment for him, however, upon demurrer to a plea in 
 abatement, is not final {z). The principal pleas in abatement 
 are, non-joinder of any person as a co-defendant, or misno- 
 
 mer (a). ^ . ^ . c 
 
 The defendant must rejoin within four days after notice re- For-nt °f 
 quiring him to do so. But if he is under terms to " rejoin 
 gratis" (which is part of the condition of the order for further 
 time to plead), no such notice is required ; in which case he 
 must rejoin within four days from the delivery of the replica- 
 tion (&). If he do not so rejoin, the plaintiff may sign Judg- 
 ment (as to any plea to which the defendant ought to have 
 rejoined), as for want of Rejoinder (c). 9. 
 
 A nolle prosequi is in the nature of an acknowledgment by Nolle prosequi, 
 the plaintiff entered on record, to forbear to proceed further, 
 either in the suit altogether or some part of it, or as to some 
 of the defendants {d). In such a case, the defendant who shall 
 have a nolle prosequi entered against him shall have Judgment 
 for his reasonable costs (e). 10. 
 
 Judgment of non prosequitur is a final Judgment against the Non prosequi- 
 plaintiff, signed by the defendant, whenever the plaintiff hi any 
 stage neglects to prosecute his suit, or any part of it, within the 
 
 proper time (/). , . i u v- ^-^^ 
 
 If the plaintiff find his evidence insufficient at the trial, he Non-sun. 
 may elect, but cannot be compelled, to be non-suited, in order 
 that he may bring on his suit again, when better prepared {g). 
 Upon being non-suited, the plaintiff is liable for the defendant's 
 costs, and the latter becomes a Judgment Creditor in respect 
 
 thereof (/i). 12- 
 
 A retraxit is very similar to a nolle prosequi, except, that Retraxit. 
 the former is made in person, and is a bar to any future action 
 for the same cause {i). 13. 
 
 Judgment on Verdict at Nisi Prius is always final. So J^^g™-"* on 
 where the trial is before the Sheriff or a Judge of an Inferior 
 Court of Record, under 3 & 4 Will. 4, c. 42 {k). 14, 
 
 Judgment /or the plaintiff on Demurrer is final or not, in the J^^^S'J'^^JJ' °" 
 same manner and cases as Judgment by Default (Z). In all cases 
 
 ^y) Ibid. (/) Archb. Pr. 1384. 
 
 (z) Ibid. 851.. (g) Ibid. 414. 
 
 (a) Ibid. 847. W Ibid. 415; Chitty's Forms, 7tli 
 
 (6) Ibid. 272. ed. 250. 
 
 (c) Ibid. 273. (i) Archb. Pr. 1420. 
 
 (rf) Ibid. 1417. CO Section 18. 
 
 (e) 3 & 4 Will. 4, c. 42, s. 33. • (0 Ante, p. 11.
 
 14 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 15. 
 Nul tiel record. 
 
 16. 
 Judgment on 
 trial without 
 pleadings. 
 
 17. 
 Fraudulent 
 Judgments. 
 
 then, within this Treatise, it is final, except where it is on de- 
 murrer to a plea in abatement (m). 
 
 Judgment for defendant on Demurrer, whether to a declara- 
 tion, plea, replication or rejoinder, is, of course, always final, 
 for costs. 
 
 Judgment on nul tiel record is, where the defendant pleads 
 a record of the same court, and the plaintiflT replies there is none, 
 or when he replies to a plea of nul tiel record, and concludes his 
 replication that the record may be inspected. If, on trial, Judg- 
 ment is given for the plaintiff, it is final or not, as in case of 
 default or demurrer (n) {i. e. always final in " Debt"), and is 
 always final for the defendant. 
 
 Judgment entered on the trial of questions of fact or law 
 without pleading by consent are final, as on Judgments in con- 
 tested actions (o). 
 
 A Voluntary Judgment, e. g. a Judgment obtained upon a vo- 
 luntary bond or other security, is equally good with one ob- 
 tained upon an instrument for which the Creditor has given 
 money or money's worth ; although, in the administration of the 
 Debtor's assets after his decease, it is liable (as we shall see 
 hereafter) to be postponed to all debts for value (p): and even 
 during the Debtor's life, if it has been obtained fraudulently as 
 well as voluntarily, it is liable to be postponed to subsequent 
 bona fide creditors for value {q), at least if they are Judgment 
 Creditors (r). But absence of a valuable consideration, though 
 an argument, is not, it has been said, conclusive of fraud (s); nor 
 again is such a consideration evidence of bona fides {t). The 
 present inclination, however, of at least one branch of the Court 
 of Chancery seems to be to consider all deeds executed without 
 consideration fraudulent {u). 
 
 Though it has been queried, whether a Creditor must not, in 
 order to set aside a prior fraudulent conveyance or Judgment, 
 have first obtained Judgment (u), there are cases in which it has 
 been set aside during the life of the Debtor by Creditors other 
 than Judgment Creditors {x), and there seems nothing in the act 
 (of Eliz.) itself to limit the right to set it aside to the latter class 
 of creditors alone. 
 
 (m) Ante, p. 1.3. 
 
 («) Arch. Pr. 876. 
 
 (o) C. L. P. Act, 1852, ss. 44, 47. 
 
 (p) Seton on Decrees, 2nd ed. 56. 
 
 (<7) 1.3 Eliz. c. 5, s. 2. 
 
 (r) Colman v. Croker, 1 Ves. jun. 
 
 133. 
 
 {s) Cadogan v. Kennett, Covvp. 434. 
 
 U) Ibid. 
 
 (k) Warden v. Jones, 23 Beav. 497. 
 
 {v) Lister v. Turner, 5 Ha. 292. 
 
 (i) E. g. Warden v. Jones, 23 Beav, 
 
 161; Barton t). Vanheythuysen, 11 Ha. 487.
 
 REMOVAL OF JUDGMENTS. 
 
 15 
 
 In one case, and in one case only(y), an objection to 
 answer a suit to set aside such a conveyance, on the ground 
 that the Act subjects the party to forfeiture and imprisonment, 
 appears to have been taken. In that case, the point does not 
 seem to have been decided, but it would be difficult to say the 
 objection should not prevail, consistently with the principle, 
 that no man is bound to criminate himself. 
 
 Section 2. 
 Removal of Judyments. 
 
 1. Westminster Judgments, Rules, Decrees 
 
 and Orders. 
 
 2. Unremoved Palatine Judgments, Rules, 
 
 Decrees and Orders. 
 
 3. Decrees and Orders of Inferior Courts 
 
 of Equity. 
 
 4. Duchy Cliav;ber Decrees. 
 
 5. Removed Palatine Judgments generally. 
 
 6. Lancaster Judgments, 
 
 7. Lancaster Rules. 
 
 8. Durham Judgments. 
 
 9. Durham Rules. 
 
 10. Lancaster Decrees and Orders. 
 
 11. Summary of Removal. 
 
 12. Judgments and Rules within 1 ij- 2 
 
 Vict. c. 110, s. 22. 
 
 13. County Court Judgments. 
 
 14. Stannary Court Judgments, and Rules. 
 
 15. Stannary Court Decrees and Orders. 
 
 16. Other Inferior Court Judgments. 
 
 17. Foreign Judgments. 
 
 Westminster Judgments, strictly so called, reach the property Westminster 
 of the Debtor wherever situate (within the jurisdiction), — pro- Ju'jgments, 
 
 ^ •' . Rules, De- 
 
 vided it be of a nature to be reached {z), — hy force of the Judg- creesand Or- 
 ment, and without more. 
 
 And Decrees and Orders of the High Court of Chancery (a), 
 and all Orders of the Lord Chancellor, or of the Court of 
 Appeal in Chancery, sitting in Bankruptcy or Lunacy, and of 
 the other Courts of Bankruptcy, whose Orders are Judgments, 
 and all Rules of the (Westminster) (6) Courts of Common Law, 
 are entitled instanter, and without the formality of any " Re- 
 moval," to the privileges of W^estminster Judgments, properly 
 so called (c). However, no action can be brought on a Rule(£/). 
 
 And so are, within the limits of their (territorial) jurisdiction, Umemoved 
 unremoved Judgments of the Common Law Courts of both the P^l-^fne Jmlg- 
 
 _" ments, Rules, 
 
 Palatine Counties (e), and Lancaster Decrees and Orders for the Decrees and 
 payment of money, costs, charges and expenses (f). So are, 
 but only as to lands vnthin their jurisdiction, unremoved Rules 
 of the Common Law Courts of both the Palatine Counties [y), 
 
 Orders. 
 
 {y) Wich V. Parker, 22 Beav. 59. 
 
 (z) What is, post, sect. 4. 
 
 (n) Table of Courts, Appendix. 
 
 {b) Post, p. 19. 
 
 (^c) 1 & 2 Vict. c. 110, s. 18. 
 
 {d) Post, sect. 7. 
 (e) 1 & 2 Vict. c. 110, s. 21. 
 (/) 13 & 14 Vict. c. 43, s, 24. 
 {g) 18 & 19 Vict. c. 15, s. 2.
 
 16 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Decrees and 
 Orders of In- 
 ferior Courts 
 Equity. 
 
 of 
 
 Decrees of 
 Duchy Cham- 
 ber. 
 
 5. 
 Removed 
 Palatine Judg 
 ments gene- 
 rally. 
 
 and Durham Decrees and Orders for the payment of money, 
 costs, charges and expenses (k). 
 
 The same would, looking at the grammatical import of sect. 18 
 of 1 & 2 Vict. c. 110, appear prima facie to be the Law with 
 regard to the Decrees and Orders (for payment of money, costs, 
 charges or expenses) of all Courts of Equity whatever ; but con- 
 sidering the doubt whether that section comprised even the Court 
 of Chancery of Lancaster [though that, like the Lancaster Com- 
 mon Pleas Court, is a Superior Court], which rendered the 
 13 & 14 Vict. c. 43, s. 24, necessary, — and considering also the 
 pi'ovisions of the Stannary Court Act, which requires certain steps 
 to be taken to make Decrees or Orders of that Court equivalent 
 to Decrees or Orders of the High Court of Chancery (i), — and 
 that even prior to that Act a Stannary Decree (a Decree, be it 
 observed, of a Court of Equity) required removal into a West- 
 minster Common Law Court to make it fully available (k), — 
 there can be little doubt that the words " all Decrees and Orders 
 of Equity" in sect. 18 cannot have their full and unqualified 
 meaning attributed to them. And with regard to the Lord 
 Mayor's Court (of London), it has been expressly decided that its 
 Judgments are not equivalent to Westminster Judgments (Z), and 
 the same would be so held of its Decrees as an Equity Court (m) ; 
 indeed the (new) Lord Mayor's Court Act (20 & 21 Vict. c. clvii) 
 expressly provides for the removal of its Judgments (w). 
 
 The Duchy Chamber of Lancaster, being a Superior Court of 
 Equity, its Decrees and Orders acquire, it is presumed, instanter 
 the force of Westminster Judgments, and require no removal (o). 
 
 With regard to Common Law Judgments, strictly so called, 
 other than Westminster ones, the Creditor must, in order to 
 obtain the full benefit of them, and reach the property of the 
 Debtor all over England and Wales, duly remove them into a 
 W^estminster Court. This he may do by some or one of the 
 following modes, and in the following cases : — 
 
 If the Judgment be a Palatine one, whether of Durham or 
 Lancaster, any Westminster Court may, on affidavit of the Judg- 
 ment, and that execution has issued against the Debtor's person 
 or effects, and that such person or effects are not found within 
 the Palatine "jurisdiction, cause a transcript of the record of such 
 Judgment to be removed to Westminster, and direct execution 
 
 {h) Ibid. 
 
 (/) 18 & 19 Vict. c. 32, s. 10. 
 
 {k) Harvey v. Gilbard, 7 Dowl. 616. 
 
 (/) Holt V. Murray, 1 Sim. iS.j. 
 
 (wi) See Table of Courts, Appendix. 
 
 (») Ibid. 
 
 (o) 1 & 2 Vict. c. 110, s. 18.
 
 REMOVAL OF JUDGMENTS. 17 
 
 to issue —but only against the person or effects — as upon a West- 
 minster Judgment (p). g 
 
 And further, with regard to Lancaster Judgments only, where Lancaster 
 the Debtor shall have removed himself or his goods or chattels "'° 
 out of the Lancaster jurisdiction, any Westminster Court may, 
 on certificate from the Lancaster prothonotary of the amount of 
 the Judgment, issue execution— iw^ onlg against such person or 
 goods — as upon a Westminster Judgment {q). 
 
 As to Lancaster Mules, — unless sect. 18 of 1 & 2 Vict. c. 110, Lancaster 
 which gives to " all Rules of Courts of Common Law " the im- ^" '^'^" 
 mediate effect of Westminster Judgments, has repealed or super- 
 seded sect. 82 of 4 & 5 Will. 4, c. 62, — any Westminster Court 
 is still empowered by the last-named Act, where such Rule 
 cannot be enforced because of the Debtor's non-residence within 
 the Lancaster jurisdiction, upon a certificate of such Rule by 
 the prothonotary of the Court, and an affidavit that by reason 
 of such non-residence the Rule cannot be enforced, to enforce it 
 as a Westminster one (r). A greater efficacy would therefore 
 seem to be given to such a removed Rule than to a removed 
 Lancaster Judgment, for the former will, the latter will not (as 
 we have seen), affect the Debtor's lands out of the Palatine 
 jurisdiction. g 
 
 As to Durham Judgments, whether the Debtor has or has not Durham Judg- 
 removed his person or effects out of the jurisdiction, the record 
 may be removed into a Westminster Court, and thereupon ac- 
 quires all the force of a Westminster Judgment ; with this pro- 
 viso, however, that, as against purchasers, mortgagees and cre- 
 ditors, such removed Judgment shall not bind the Debtor's 
 lands further than it would, if it had remained a Palatine one, 
 until the writ of execution is delivered to the sheriff (s). 
 
 Durham Rules are distinguished in the following way. If the Durham Rules. 
 Rule be one for the payment of money, it may be removed into 
 a Westminster Court and acquire the effect of a Westminster 
 Judgment, in the same manner, and under the same circum- 
 stances, and with the same proviso, as a Durham Judgment {t). 
 If it be a Rule other than one for the payment of money, a7id 
 cannot be enforced by reason of the debtor s non-residence within 
 the jurisdiction, it may, on a certificate similar to that required 
 in Durham Judgments, be removed into a Westminster Court, 
 
 ip) 33 Geo. 3, c. 68, s. \. (s) 2 & 3 Vict. c. 16, s. 28. 
 
 (q) 4 & 5 Will. 4, c. 62, s. 3L (0 Ibid, 
 
 (r) Ibid. s. 32.
 
 18 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 10. 
 
 Lancaster 
 Decrees. 
 
 11. 
 
 Summary of 
 Removal. 
 
 and acquire the force of a Westminster Judgment (m) ; and no 
 restrictive proviso applies to such a removed Rule as applies to 
 removed money Rules. 
 
 And lastly, Lancaster — but not Durham — Decrees and Orders 
 may be made equivalent to Decrees and Orders of the High 
 Court, and have the same effect as if they had been such ori- 
 ginally, wherever they cannot be enforced by reason of the non- 
 residence of any party to be bound thereby within the Palatine 
 Jurisdiction (x). 
 
 The result then of all this discordant and discreditable jargon 
 of statutory enactments with regard to Palatine Judgments and 
 Rules, Decrees and Orders is this: — 
 
 1. As against property of the Debtor within the Palatine 
 Jurisdiction. 
 
 (i.) As against all species of property. 
 
 Unremoved Judgments of the Courts of Com- 
 mon Law of both countifes, and Lancaster 
 Decrees and Orders, have the force of West- 
 minster Judgments, 
 (ii.) As against land. 
 
 Unremoved Rules of the Common Law Courts 
 of both counties, and Durham Decrees and 
 Orders have the force of Westminster 
 Judgments. 
 2. As to property without the Palatine Jurisdiction. 
 
 (i.) Removed Lancaster Judgments acquire the force of 
 Westminster Judgments onli/ against the person 
 and goods. 
 (ii.) Removed Lancaster Rules acquire the force of 
 Westminster Judgments against person, goods 
 and lands, 
 (iii.) Removed Durham Judgments and Money Rules 
 acquire the force of Westminster Judgments 
 against person, goods and lands : but as against 
 purchasers, mortgagees and creditors only from 
 the delivery of the writ. 
 (iv.) Removed Durham Rules, not for the payment of 
 money, acquire the force of Westminster Judg- 
 ments against person, goods and lands ; and that 
 
 («) Ibid. s. 29. 
 
 (.r) 13 & 14 Vict. c. 43, s. 24.
 
 REMOVAL OF JUDGMENTS. 19 
 
 without such restriction as is attached to Money 
 Rules. 
 (v.) Removed Lancaster Decrees or Orders are available 
 against the debtor's person and property as 
 Decrees and Orders of the High Court are. 
 
 Surely it is high time to blow to the winds this farrago of 
 nonsense, and to establish one clear uniform and sensible Rule 
 upon the Law of Removal of all Judgments, or — better still — 
 abolish the Palatine Court Jurisdictions altogether. J2 
 
 But further; if the Judgment, or Rule or Order (for payment Judgments, &c. 
 of money) be one of any Inferior Common Law Court of Record, yict. c. iio 
 (and the same law appears to apply, except where any subsequent '^^ 22- 
 statutory enactment has otherwise provided {y), to Decrees or 
 Orders of Liferior Courts of Equity, if of Record {z),) of which 
 the judge, assessor or assistant was, on August 16, 1838, a barrister 
 of seven years' standing, — then it may be removed, thus : viz., into 
 a Westminster Common Law Court direct, if the Inferior Court 
 is not within the County Palatine of Lancaster, or into the 
 Common Pleas of Lancaster, if it is ; the removal to be on the 
 application of the Judgment Creditor or of any one on his 
 behalf, and upon the production of the Rule or Order, or of the 
 Record of the Judgment, under the seal of the Inferior Court, 
 and signature of the proper officer thereof; but it would appear 
 to be discretionary with the Judge of the Superior Court to 
 gi-ant the removal [a). 
 
 Nothing is said of the removal into the Court of Pleas 
 of Durham of Judgments, Rules or Orders of Inferior Courts 
 of Record (v/ithin sect. 22) within that County. They are, 
 therefore, it is presumed, removeable direct to Westminster. 
 
 It may be observed, that the directions we are now consider- 
 ing for the removal of Inferior Court Rules furnishes another 
 proof, that the words " all Rules of Courts of Common Law" 
 in sect. 18 are not to be taken literally, and that the Rules of 
 Inferior Courts do not any more than Palatine Rules acquire 
 instanter the force of Westminster Judgments. 22 
 
 With regard to (New) County Court Judgments, if the debtor County Court 
 has " no goods or chattels which can be conveniently taken," 
 and the debt be more than £20, they are removeable by cer- 
 
 (y) As ill the case of Judgments (z) 7 Dovvl. 61(). 
 
 of the Lord Mayor's Court, see Table (ti) 1 & 2 Vict. c. 110, s. 22. 
 
 of Courts, Appendix. 
 
 C 2 
 
 JudcfmeiUs.
 
 20 JUDGMENTS BY AND AGAINST ONE. 
 
 tiorari into the Westminster Common Law Courts, and acquire 
 thenceforth the force of Westminster Judgments, except that no 
 action can be brought on them {h). 
 
 And it would seem, that if the County Court be within either 
 of the Counties Palatine, the removal must be to the Palatine 
 Court ; the certiorari issuing out of the Palatine Chancery (c). 
 J Nothing is said of (New) County Court Rules. 
 
 Stannary Court As to Stannary Court Judgments {d), when they cannot be 
 RulesT" ^ ^"' "conveniently or effectually" enforced by Stannary Court pro- 
 cess, any Westminster Common Law Court or Judge may cause 
 process to issue and proceedings to be taken, as if it had been 
 a Westminster Judgment, upon a proper application, certificate 
 of the registrar and affidavit of the grounds of application (e). 
 
 If the Judgment be for not more than £50, the Creditor may 
 sue execution out of the Stannary Court and send it to the clerk 
 of any County Court, within the district of which the Debtor 
 or his goods shall then be or be believed to be, to be executed 
 against his person or goods (/ ). 
 
 Nothing is said in the Stannary Act of Stannary Court Rules, 
 which therefore, it is presumed, are — if the Stannary Court 
 Judge answer the requirements in sect. 22 of 1 & 2 Vict. c. 110 
 — removeable under that section. 
 Stannary De- If the Decree or Order (for the payment of money, &c.) be 
 made by the Vice-Warden of the Stannaries sitting in Equity, 
 it may be enforced, within the jurisdiction, by equitable writs of 
 fieri facias or capias, as near in form as may be to the like 
 writs of the High Court ; but if the Decree or Order, whether 
 for the payment of money or otherwise, cannot be so enforced, 
 then it may be made a Decree or Order of the High Court upon 
 application of the Creditor, affidavit of the ground of such appli- 
 cation, and production of the registrar's certificate ; and there- 
 upon acquires the force of a Decree or Order of the High 
 Court [g). 
 
 If the Stannary Decree or Order is for the payment of a sum 
 not exceeding £50, the Creditor may enforce payment of it in 
 the same manner as of a Judgment not exceeding £50 obtained 
 on the Common Law side of the Vice-Warden's Court (A). 
 
 {b) 19 cS.' 20 Vict. c. 108, s. 49. (<?) IS & 19 Vict. c. 32, s. 9. 
 
 (c) Ibid. s. 86. (/) Ibid, 
 
 (rf) As to the Stannary Courts, see {g) Ibid. s. 10. 
 
 Table of Courts, Appendix. {h) Ibid. 
 
 crees and Or 
 ders-
 
 REMOVAL OF JUDGMENTS. 21 
 
 By the equitable capias above mentioned would appear to be 
 meant the writ o^ attachment of the High Court (i). 
 
 Whether the debt be for a sum exceeding £50 or not, the 
 Decree or Order may be enforced by attachment, or by sale of 
 shares in mines, where it could have been so enforced pre- 
 viously to the I'ecent Stannary Act (k). jg 
 
 As to Inferior Courts of Record generally, any Westminster Otlior inforior 
 Court may cause the record of the Judgment of such Courts — meats. 
 nothing is said of their Rules — to be removed into such West- 
 minster Court, and may issue execution against the person or 
 goods, as in the case of Westminster Judgments, on affidavit that 
 such Judgment has been obtained, and that execution has issued 
 against the defendant's person or effects, and that it or they 
 are not to he found within the jurisdiction of such Inferior 
 Court (Z). 
 
 It would seem, therefore, that a New County Court Judgment, 
 a Stannary Judgment, or a Judgment within s. 22 of 1 & 2 Vict, 
 c. 110, may still be removed under the Act of George 3. 
 
 Foreign Judgments, Decrees, Rules and Orders are not re- Foreign Judg- 
 moveable, though (as will presently appear) they may be en- ™^"'^- 
 forced in this country against property here. Under the term 
 " Foreign" are included not only the sentences of the Courts of 
 Independent Foreign States, properly so called, but those of 
 any of our Colonial Courts, or of the Scotch or Irish Courts. 
 Of course such sentences will, or will not, bind property within 
 the respective jurisdictions of those Courts according to the laws 
 in force in those countries. 
 
 (?) As to which, see Table of Courts, Table of Courts, Appendix. 
 Appendix. {I) 19 Geo. 3, c. 70, s. 4. 
 
 (A-) 18 & 19 Vict. c. 32, s. 5 ; and see
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Section 3. 
 
 When Judgments bind, and herewith of their Registration and 
 He-registration . 
 
 1. When Judgments hind. 
 
 Personaltij in Possession, 
 
 as against Debtor and Volunteers. 
 
 as against Purchasers. 
 Chases in Action. 
 Realty. 
 Chattels Real. 
 
 At Law. 
 
 In Equity. 
 
 2. Registration, when unnecessary. 
 
 3. Registration, when necessary. 
 
 Westminster Judgments. 
 
 Westminster Registration. 
 
 County Registration. 
 
 Palatine Registration. 
 Palatine Judgments, Sfc. 
 
 Duchy Chamber Decrees. 
 
 County Court Judgments. 
 
 Inferior Court Judgments not within 
 1 f 2 Vict. 
 
 Foreign Judgments. 
 
 Mr. Craufurd' s Bill. 
 
 Terms are within Registration 
 Clauses. 
 Time for Registration. 
 Registration not Notice. 
 Against what " Creditors" Registration 
 
 necessary. 
 Westminster Re-registration. 
 Palatine Re-registration. 
 No County Re-registration. 
 
 1. 
 When judg- 
 ments bind 
 personalty in 
 possession. 
 
 Choses in ac- 
 tion. 
 
 Realty. 
 
 Judgments bind personalty in possession as against the Debtor 
 and his volunteers, not, as in the case of realty, from the 
 period of entering up Judgment, but from the respective periods 
 at which writs of execution are delivered to the sheriff in the 
 case of Westminster or Palatine Judgments {m), or to the high 
 bailiff in the case of County Court Judgments (?i), or to the other 
 proper officer, according to their own process or custom, in the 
 case of other Inferior Courts. On this principle it is that, before 
 execution sued, an executor may pay out of his testator's assets 
 whichever Judgment (of several) he chooses first (o). And the 
 same rule prevails both at Law and in Equity, 
 
 Whilst as against purchasers bona fide, and without notice, 
 such personalty is bound only from actual seizure by the she- 
 riff(p). 
 
 Choses in action are bound from the time the Judgment Cre- 
 ditor has obtained a charging order absolute or given notice, as 
 will appear more fully presently {cj). 
 
 As regards realty, the priorities of Judgments will be, as 
 against the Debtor and his volunteers, ascertained from the re- 
 spective periods of drawing up the rule (r), entering up the Judg- 
 ment {s), or pronouncing the Decree or Order (t). Judgment 
 
 (m) 29 Car. 2, c. 3, s. 16. 
 
 (n) 9 & 10 Vict. c. 95, s. 94. 
 
 (o) Wms. on Executors, 904. 
 
 \p) 19 & 20 Vict. c. 97, s. 1. 
 
 {q) Churchill v. Bank of England, 11 
 
 M. & W. 323 ; Warburton v. Hill, Kay, 
 470 ; and post, sect. 8. 
 
 (r) Gen. Reg. 11. T. 1853, r. 149. 
 
 {s) Ibid. r. 56. 
 
 (0 Ayckb. Ch. Pr.' 5th ed. 176.
 
 23 
 
 WHEN JUDGMENTS BIND, ETC. 
 
 shall be entered of reco,-d of .he 'l^y-^e-igneJ («)-*"' isJ.o 
 sav the day on which the proper officer has made an .«c/««r 
 (or entry of the initial words upon paper), describ.ng shortly the 
 nature of the Judgment W. i;„„ ,n their 
 
 The time for signing Judgments varies according to hen 
 natures. Judgments (other than in ejectment) on ve.d.ct m 
 term, or on a Nonsuit in or out of term, may be s.gned in iou, 
 teen days, unless the Court or Judge °*""' ^'^ . f . / 3 
 ment for default of appearance may, where the «"' ^"^ \^™ 
 specially indorsed, be signed "at once" I" ^^ "' "r^™, ^1. 
 ancefzV where the writ is not spec.ally mdorsed, at the expua 
 in f tL time (eight days) for pleading (a). Judgment for wan 
 of a plea, or where the plea is a nullity, may be s.gned a te, the 
 time alio ved defendant to plead, and Judgment for want o .e- 
 o^nder may be signed as for want of a plea. Judgment on 
 ^; :ter Jhere fitll, may be signed immediately after a peremp- 
 tory rule from one of the Masters that Judgment be enteied. 
 Judgment on a nolle ,rose,ui or on nul tUl r'^ord ^^''^^^''^^ 
 immediately (6); judgment in ejectment, w, hm s" '™;' "° 
 exceeding the fifth day in term after the verdict, as the Con, t or 
 Judge sh'all order, an/if no such order is made, then on the fifth 
 dayln term after the verdict, or fourteen ^^y^ f^^' l^^^^^^^ ,,„,.,„,, 
 
 So far Judgments bind uniformly at Law and m Equity^ But Chauels 
 a I thrction fs to be taken in the case of chattels -1. For as 
 to these, they are bound at Law, like other personalty, on'y f'"™. 
 the deli ery of the writ(d), or warrant of execut.on to the sheriff 
 o hth bailiffW, perhaps not until actual seizure by the sheriff, 
 as aSnst purchasers without notice (/); whereas there is strong 
 ^urlfor'contending that in Equity they stand el-'gea as from .» B,u... 
 the date of the entry of the judgment, drawing up "f *e Ru^';' 
 pronouncing of the Decree or Order, as m the case of Realty, 
 whether they are legal or trust terms (g). Regis.r^tio,,, 
 
 Re..istration of a Judgment is unnecessary, both at law antt ^,^^_^ ^_,„^^^,. 
 in Eq°uity, in order to affect personalty-except chattels real- sary. 
 
 w T IR'J'? r 56 id) 29 Car. 2, c. 3, s. 16. 
 
 ;^;;,^.t^- f on Trusts. 64.7, 3rd ed. 
 
 (*) ^'".^!- " f; (g) Gore .. Bowser, 24 L. J.. Ch. 316, 
 
 („) Ibid s^28 ^^ ^^^.^ ^^ ^^^^^^^ gg.,^ „ (,) . po,t, 
 
 (6) Arch. Pr. 8<6. ■ 
 
 (c) Cole on Ejectment, 336. ^cct. b. ^ ^
 
 24 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 when neces 
 sary 
 
 of any description, whether against the Debtor or his volunteers, 
 purchasers, mortgagees or creditors ; and a Westminster Regis- 
 tration is .unnecessary to affect even realty or chattels real as 
 against the Debtor and volunteers claiming under him. 
 Registration, The case, howevci*, is very different when we come to consider 
 
 it, whether as regards realty or chattels real, as against the 
 Debtor's Purchasers, Mortgagees or Creditors. To bind them 
 Westminster adversely to creditors, and (if before 23rd July, I860) to pur- 
 udgments. chasers or mortgagees, whether at law or in equity, not only must 
 "SVestminster all Judgments, Decrees, Rules and Orders having the force of 
 Registration. Westminster Judgments be refi^istered in the Common Pleas at 
 Westminster (A), but they begin to bind them only from their 
 respective periods of registration (i). 
 
 Whilst purchasers and mortgagees are bound by them, if 
 
 entered up after July 23, 1860, in ani/ Court only from the time 
 
 execution thereon is issued and registered (J). 
 
 County Regis- If the lands be in a Register County, the Judgment, if before 
 
 men ts before"' ^"^ J^Iy, 1860, must be also registered in the County Registry, 
 
 23rd July, and it will only affect the lands, at Law (A) or in Equity (Z), from 
 
 the time when the double Registration is complete, even as against 
 
 a purchaser with notice. 
 
 The Register Counties are the West Riding of Yorkshire (w), 
 the East Riding and Kingston-upon-HuU (?i), Middlesex (o) 
 (except as to chambers in Serjeants' Inn and the Inns of Court 
 and Chancery), and the North Riding (p). 
 
 If the lands are in a Register County, a County Registration 
 is necessary, — though, as has been observed, a Westminster one 
 is not, — in order to bind them against the Debtor himself ov 
 volunteers claiming under him : except indeed, in the case of 
 lands in the North Riding ; as to which, by a strange discrepancy 
 from the other Register Acts, Registration is only required in 
 order to affect them as against any " subsequent purchaser, mort- 
 gagee, plaintiff or cognizee for value" {q). Whether the word 
 " plaintiff" is synonymous with those Creditors against whom a 
 
 (A) 1 & 2 Vict. c. 110, s. 19. (/) Johnson v. Holdsworth, 1 Sim. 
 
 (t) Hargrave v. Hargrave, 23 Beav. N. S. 106. 
 
 A&^. (m) 5 Ann. c. 18. 
 
 ij) 23 & 24 Vict. c. 38, s. 1. (n) 6 Ann. c. 35, s. 19. 
 
 {k) Westbrooke v. Blythe, 3 Ell. & (o) 7 Ann. c. 20, s. 18. 
 
 Black. 737 ; and Hughes v. Lumley, 3 (/)) 8 Geo. 2, c. 6, s. 1. 
 
 Ell. & Black. 274. (7) Ibid.
 
 WHEN JUDGMENTS BIND, ETC. 25 
 
 Westminster Registration is necessary in the usual cases (r), I 
 leave it to the learned reader to decide. 
 
 It seems not clear whether a Judgment, Decree, Order or Palatine Re- 
 Rule, having the force of a Westminster Judgment, must, to o'^^*'^"''"- 
 affect lands in the Counties Palatine, as against Creditors, or 
 (if before 23rd July, 1860) purchasers and mortgagees, be regis- 
 tered there as well as at Westminster (s). 
 
 If the Judgment (<), Decree, Order or Rule (u) be a Durham Palatine Judg- 
 or Lancaster one, it must, to bind lands, tenements and heredita- ™'-'"'®' *^'^- 
 ments within the County Palatine, as against Creditors, or (if 
 before 23rd July, 1860) purchasers and mortgagees, either at Law 
 or in Equity, be registered in such county. If after 23rd July, 
 I860, it binds purchasers only from the registration of execution. 
 
 It is presumed a Decree or Order of the Duchy Chamber of Duchy Cham- 
 Lancaster, or a writ thereon, must be registered at Westminster ^^^ Decrees, 
 under similar circumstances, and for similar purposes (x). 
 
 New County Court Judgments to the amount of £10 and up- County Court 
 wards must be registered in a Registry of their own (y), whether •^"'ig'"^"'^. 
 as against the Debtor himself or others ; but such registration 
 confers on the Creditor no right to the land. To give him that 
 right as against the Debtor himself and his volunteers, he must 
 remove the Judgment to Westminster, as before described, and 
 to give it him as against Creditors and (if before 23rd July, 
 1860) purchasers and mortgagees, he must also register it as a 
 Westminster Judgment. 
 
 Judgments, Rules and Orders of Inferior Courts within s. 22 
 of 1 & 2 Vict. c. 110 (^^), removed under that section, must be 
 registered in the Westminster or Lancaster Common Pleas (as 
 the case may be), in order to bind Creditors or (if before 23rd 
 July, 1860) purchasers and mortgagees (a). 
 
 Judgments, Decrees, Rules and Orders, before 23rd July, Other Inferior 
 1860, of Inferior Courts of Law or Equity not within 1 & 2 Vict, ments, &c. 
 c. 110, of course would not require registration under it; but 
 qucere whether they are not now within ss. 1,5 of 23 & 21 Vict. 
 c. 38, so that execution on those entered up since 23rd July, 
 1860, must be registered, to affect purchasers and mortgagees. 
 
 (/•) Post, p. 27. & 14 Vict. c. 43, s. 24. 
 
 (s) 18 & 19 Vict. c. 15, s. 2; Dart's (.r) 1 & 2 Vict. c. 110, ss. 18, 19. 
 
 V. & P. 3rd ed.319; and see an article (y) 15 & IG Vict. c. 54, s. 18. 
 
 on this suhject, 4 Jur., N. S. 338. (z) What these are, ante, p. 19. 
 
 (0 1 & 2 Vict. c. 110, s. 21. (a) 18 & 19 Vict. c. 15, s. 7. 
 
 (u) 18 & 19 Vict. c. 15, ss. 2, 3 ; 13 
 
 c5
 
 ments. 
 
 26 JUDGMENTS BY AND AGAINST ONE. 
 
 County Regis- If the Judgment, Decree, Order or Rule be since 23rd July, 
 trationof.Judg- jggQ execution thereon must, as we have seen, be registered in 
 
 ments since ' . . 
 
 23rd July, I860, the Common Pleas at Westminster, in order to affect purchasers 
 or mortgagees, and no County registration of the judgment would, 
 in such cases, appear necessary, though it would still be neces- 
 sary as against Creditors and as between the Judgment Creditor 
 and Debtor. 
 
 Foreign Judg- Foreign Judgments, Decrees, Rules or Orders do not ipso 
 facto affect lands situate in England (though they may be 
 enforced against them judicially (b) ), and therefore the Registra- 
 tion Clauses do not apply to them. But as to Irish ones, it may 
 be observed, that provisions as to Registration, in order to bind 
 lands there, have been enacted similar to those which obtain, in 
 the case of Home Judgments as to lands here (c). However, 
 Registration in Ireland of an Irish Judgment will not make it 
 rank higher than a simple contract debt here id). And so of all 
 other Foreign Judgments, Decrees, &c. 
 
 It is hardly necessary to remark, that Home Judgments do 
 not, by Registration here, acquire any force against property of 
 the debtor abroad, whether in the Colonies, Scotland, Ireland or 
 elsewhere. 
 
 Mr.Craufurd's It is much to be wished, that the Bill for which Mr. Crau- 
 furd has contended with so much praiseworthy perseverance, for 
 several Sessions, for making Judgments of the different portions 
 of the United Kingdom interchangeably available against pro- 
 perty, had become Law. The measure, indeed, seems to be too 
 just, and too necessary, to be much longer defeated. As against 
 the person, however, of the Debtor, Decrees and Orders of the 
 High Court of Chancery for the payment of money may be 
 enforced by the Court of Chancery in Ireland (and vice versa) 
 by process of attachment and committal, to be issued out of the 
 Irish Chancery, and that, although the matter concerning which 
 the order is relate to infants, bankrupts, lunatics or idiots (e). 
 
 Upon the foregoing Summary of the Law of Registration, the 
 following explanatory remarks may be useful. Under the word 
 "volunteers" will be included all those claiming under any 
 voluntary conveyance by the Debtor ; the Crown (as Sovereign) 
 or the Lord (as to copyholds) claiming for forfeiture; or the Lord 
 (or Crown as Lord) claiming on escheat for want of heirs. 
 
 {h) Reimers v. Druce, 23 Beav. 145 ; {d) Wilson r. Lady Dunsany, 18 Beav. 
 
 and see post, Sect. 8. 293. 
 
 (c) 3 & 4 Vict. c. 105. (e) 41 Geo. 3, c. 90, s. 5 ; and 5 Geo. 
 
 4,0. 111. 
 
 BUI
 
 WHEN JUDGMENTS BIND, ETC. ~'7 
 
 Legal terms of years are "lands" within the Registration Terms are 
 
 71 •!• iiPiorj IT'- t within Regis- 
 
 clauses (/). U equitable terms are within sect. 11 ot 1 & J^ Vict, tratiou clauses. 
 
 c. 110 (y), as without doubt they are within section 13, Regis- 
 tration will be as necessary at Law to bind them, as it is in 
 Equity. 4. 
 
 No time is prescribed within which the Judgment must be Time for regis- 
 
 1 /^ • Ti 1 • tration ; 
 
 registered, either at Westminster or in the Counties raiatme, 
 except of course the time during which it is available. It will, 
 however, be best to register immediately. With regard to County 
 Registrations, it is not compulsory to register within any given 
 time ; but, in order to bind the lands which the Debtor had at 
 the date of the Judgment, the Registration must be within thirty 
 days of the date of Judgment, if they are within the West or 
 East Riding or Kingston-on-Hull (Ji), or within twenty days, if 
 they are within the North Riding {i). No time is mentioned in 
 the Middlesex Act (A). 
 
 Execution must, at least as against purchasers and mortgagees, for execution. 
 be executed within three months after registration of the writ (J). 
 
 Orders, before 23rd July, 18G0, for payment of costs operate 
 only, as against purchasers, from the registration of the certifi- 
 cates of taxation {m), r 
 
 Registration does not — except to the extent just mentioned in Registration 
 County Registrations — give Judgments a retrospective action (/z), 
 nor does it confer on the Creditor more than a prima facie title. 
 Other circumstances may still arise to defeat his privileges, e.g., 
 want of Notice in a subsequent purchaser (o), {for neither Regis- 
 tration of the Judgment nor of Execution would seem to he in 
 itself Notice), or {e.g., in bankruptcy) the circumstance that the 
 Judgment was not entered up a year before the bankruptcy (/j). 
 All that the Acts say is: — "You shall acquire no right against 
 given classes of persons, until you have registered," not " you 
 shall thereby gain an indefeasible right against them." g^ 
 
 The Creditors, as against whom the Judgment must be regis- Against what 
 
 tered, would seem to be Creditors ejusdem generis with those as Registration 
 
 necessary. 
 
 (/) Westbrooke v. Blythe, 3 Ell. & {I) 23 & 24 Vict. c. 38, s, 1. 
 
 Blackb. 737. (»») Hargrave i^. Hargrave, 23 Beav. 
 
 {g) Prid. Judg. 63, 4th ed. 484. 
 
 {h) 5 Ann. c. 18, s. 11 ; 6 Ann. c. 35, (n) Ibid, 
 
 s. 28. (o) 1 & 2 Vict. c. 110, s. 13 ; 2 & 3 
 
 (0 8 Geo. 2, c. 6, s. 33. Vict. c. 11, s. 5. 
 
 (/f) 7 Ann. c. 20. (;j) 1 & 2 Vict. c. 110, s. 13. 
 
 cG
 
 28 JUDGMENTS BY AND AGAINST ONE. 
 
 against whom re-registration is necessary (^), i.e., not Creditors 
 generally, but those only to whom a right to or lien on the 
 Debtor's land "accrues;" viz., either (1) Creditors of an?/ class, 
 upon a decree in a Creditor's suit, after the death of the 
 Debtor (r) (though they have not, even then, such a right against 
 his leasehold property, unless the Decree orders it to be sold (s), 
 or (2) registered Judgment Creditors, or (3) his assignees in 
 bankruptcy or insolvency (t). The registration need not be a 
 year old, if the Judgment is (m). 
 
 Trustees for Creditors under a composition deed are, it would 
 seem, " purchasers" (x); and the writ of execution must, therefore, 
 be registered as against them to affect land. 
 • The Court of Chancery has power to vacate an erroneous entry 
 of a Decree registered in the Common Pleas (y). 
 
 If a Judgment is entered in a wrong name, but registered in a 
 7 right name, the registration cures the defect (z). 
 
 Westminster J^ order to keep alive his precedence over subsequent Cre- 
 
 re-reo*istra- , 
 
 tion." ditors, or (if the Judgment be before 23rd July, 1860) purchasers 
 
 or mortgagees, the Judgment Creditor must, within five years of 
 his original Registration, re-register with the same formalities, 
 and so, toties rjuoties, every five years from his last re-registra- 
 tion (a). 
 
 But he will not, either at Law or in Equity, lose a priority 
 
 (which he has once gained) by failing to re-register within the 
 
 five years, provided that he does so within five years before the 
 
 accruer of the right of any Creditor {b), or, if the Judgment be 
 
 before 23rd July, 1860, the date of the conveyance or other 
 
 instrument vesting the legal or equitable estate in any purchaser 
 
 or mortgagee for value. If the Judgment be entered up after 
 
 23rd July, 1860, there is no such thing as re-registration as 
 
 against purchasers or mortgagees, the efficacy of the writ ex- 
 
 g piring after three months from its registration (c). 
 
 Palatine Re- Palatine Judgments, Decrees, Rules and Orders, and the 
 
 gistration. removed Judgments of Inferior Courts, within sect. 22 of 1 & 2 
 
 ((/) See post, p. 28. (z) Beavan v. Lord Oxford, 3 W. R. 
 
 (r) Simpson v. Morley, 2 Kay & 154. 
 
 Johnson, 71. («) 2 & 3 Vict. c. 11, s. 4. 
 
 (5) Ibid. (6) 18 & 19 Vict. c. 15, s. 6 ; Beavan 
 
 (/) Ibid. V. Lord Oxford, 6 D. M. & G. 492, over- 
 
 (m) 15 Beav, 146. ruling Shaw v. Neale, 20 Beav. 157. 
 
 (x) Lee V. Green, 6 D. M. & G. 155. (c) 23 & 24 Vict. c. 38, s. 1. 
 (y) Cowley v. Watts, 1 W. R. 484.
 
 WHEN JUDGMENTS BIND, ETC. 
 
 29 
 
 Vict. c. 110, must be re-registered according to the rules which 
 govern a Westminster re-registration (ti) ; so must, it is presumed, 
 a removed County Court Judgment, although it is nowhere ex- 
 pressly so provided in the Act empowering its removal. ^ 
 
 But no re-registration in the Register Counties, if the lands No County Re- 
 lie there, seems necessary; nor need unremoved (New) County 
 Court Judgments registered in their own registry be re-registered. 
 
 rc'^istration. 
 
 Section 4. 
 
 Rights at Law. 
 
 Westminster Judgments and their 
 Equivalents. 
 Realty liable. 
 Chattels Real. 
 
 Realty and Chattels Real not liable. 
 Personalty in Possession liable. 
 Chrises in Action, 
 Debts due to Judgment Debtor. 
 
 Palatine Judgments and Lancaster 
 
 Decrees and Orders. 
 Palatine Rules and Durham Decrees 
 
 and Orders. 
 New County Court Judgments, 
 New County Court Rules. 
 Judgments within s. 22 of \ 8f 2 Fict. 
 
 c. 110, and other Judgments. 
 
 Provided the Creditor has not taken the Debtor's person in Westminster 
 execution, for that in general discharges the debt(e), which must Ju'|g'nents and 
 
 \ , . , , their equiva- 
 
 exceed 20f., besides costs, to enable the Creditor to arrest him(/), lents. 
 
 unless there was fraud in the matter of it {g), the following 
 
 species of his real estate, chattels real and personalty, are liable 
 
 to satisfy, at Law, a Westminster Judgment {h) (strictly so called), 
 
 or Rule, a Decree or Order of the High Court of Chancery, or 
 
 an Order of the Lord Chancellor (or of the Court of Appeal in 
 
 Chancery) sitting in Bankruptcy, or of the Lord Chancellor (or 
 
 of the Court of Appeal) sitting in Lunacy, or of any Court of 
 
 Bankruptcy, — if within the rank of Westminster Judgments. 
 
 1. As to realty ; — the whole of the freehold, customary free- What realty 
 hold, or copyhold lands, tenements and hereditaments, (lay) {i) ^^^^^^- 
 
 id) 18 & 19 Vict. c. 15, s. 7. 
 (e) Arch. Pr. 650. 
 (/) 7 & 8 Vict. c. 96, s. 57. 
 (g) Fbid. s. 58. 
 
 (h) What is, post. Sect. 8. 
 (j) Hawkins v. Gathercole, 24 L. J., 
 Ch. 339; Co. Litt. 159 a. 
 
 c7
 
 30 
 
 JUDGMENTS BY AND AG^AINST ONE. 
 
 rectories and tithes, and rents, in possession, wherever situate, 
 in England or Wales, and as it would seem, whether legal or 
 equitable (k), which the Debtor has or shall have, or of which 
 he has or shall have, at any time before the satisfaction of the 
 debt, the sole power of disposition for his own benefit, whether 
 in fee simple (absolute, conditional, or base), fee tail, for life or 
 lives, are liable to execution both legal and equitable (Z). 
 
 The above general description of realty will be found to include 
 that with respect to which the Debtor is situated as follows : — 
 
 Legal freeholds or copyholds which, subsequently/ to the Judg- 
 ment, the Debtor may have contracted to mortgage, or to aliene 
 (whether for value or voluntarily) absolutely ; and that, whether 
 the intended alienee or mortgagee has or has not notice of the 
 Judgment, or has or has not paid any part of the purchase or 
 mortgage-money. 
 
 Legal freeholds or copyholds which, subsequently to the Judg- 
 ment, the Debtor has legally aliened for value or mortgaged ; and 
 that (but only as to freeholds) whether the alienee or mortgagee 
 has or has not notice of the Judgment (m), provided execution 
 has issued and been registered before the conveyance and pay- 
 ment of the purchase or mortgage-money. 
 
 Lands which the Debtor is at the date of the Judgment under 
 a contract to aliene bona fide and for value (w), though the pur- 
 chaser may enjoin the Creditor in Equity (o). 
 
 Lands of which the Debtor is a trustee {p), or the legal mort- 
 gagee ((^), provided the mortgage has not been paid ofF(r), or 
 which he has voluntarily aliened with or without notice. 
 
 Lands which, before the Judgment, the Debtor has aliened 
 with " intent to delay, hinder or defraud Creditoi-s," such alien- 
 ation being, though good as against the Debtor himself, "clearly 
 void, frustrate and of no effect" (s), as against the Creditor, and 
 therefore the sheriff would be bound to extend them {t). \n- 
 debtedness to any considerable extent is a mark of fraud {u) ; 
 so also is retention of possession, unless retention is, as in the 
 
 (/.) Prid. Judg. 63. ( p) Finch v. Lord Winchelsea, 1 P. 
 
 (0 1 & 2 Vict. c. 110, s. 20. Wins. 277. 
 
 (»n) 2 Cruise's Dig. 4-9, 4th ed. (17) Sugd. Concise View, 421. 
 
 (n) Brunton v. Neale, 14 L. J., (>) 18 & 19 Vict. c. 15, s. 11. 
 
 Chanc. 8. (5) 13 Eliz. c. 5, s. 2. 
 
 (o) Sugd. Concise View of V. & P., (/) See Gilbert, Lex Praetoria, 293. 
 
 13th ed., 42-5. («) Kennet v. Cadogan, Cowp. 435.
 
 RIGHTS AT LAW. 
 
 case of a mortgage, consistent with the true character of the 
 conveyance (a:). As we have seen (y), the absence of a valuable 
 consideration is another prima facie badge of fraud; but neither 
 it nor indebtedness are conclusive (z); nor a valuable considera- 
 tion, either past or present, necessarily a proof of bona fides (a) : 
 thus the alienation may be fraudulent, though made to a Cre- 
 ditor, and so not voluntarily (6). But bond fide purchasers 
 (from the grantee or grantor) for value and without notice of 
 the fraud are safe from the Judgment (c). Yet, as between the 
 parties to it, a fraudulent Judgment is good ; therefore, in such 
 a case, the sheriff must execute execution at the instance of the 
 Creditor (d). " Imray v. Magnay" however, in which this was 
 decided in the case of goods, " appears to put the sheriff in a 
 position subjecting him to serious injury" (e), and to add to his 
 merely ministerial duties a certain judicial responsibility which 
 it seems hardly fair to cast upon him. 
 
 Lands of which the Debtor is tenant in coparcenary {/)• 
 Only lands of a descendible nature {g) and which have come to 
 him by descent, can be so held by him. 
 
 Lands of which the Debtor is tenant in common {h). 
 
 Lands of which he is joint tenant, even though he dies, before 
 execution, in the lifetime of his co-tenant, and this in contraven- 
 tion of the old Common Law maxim " Jus accrescendi prcufertur 
 oneribus" ; for he may at any time, without the assent of another, 
 sever the joint tenancy and dispose of them for his own benefit, 
 and so shall be held to have disposed of them (i). 
 * For the same reason, lands over which he has a sole power, 
 though unexercised, of appointing by deed (k). 
 
 Whether a power to appoint by will is within the act seems 
 doubtful. Mr. Jarman thinks it is not, as it can scarcely be said 
 to be exerciseable for the Debtor's own benefit (J) ; Mr. Prideaux 
 thinks it is ; for he may thereby increase his estate (»<)• 
 
 (x) Twync's case, 1 Smith's Leading Lawrence, 15 Q. B. 1010. 
 
 Cases, 1, 22, 4th ed. (/) 2 Cruise's Dig. 54. 
 
 {y) Ante, Sect. 1. {g) Ibid. 392. 
 
 («) Cowp. 434. (/() Ibid. 54. 
 
 (a) Ibid. {i) Prid. Judg. GQ. 
 
 (6) Smith V. Hurst, 10 Hare, 45. (A-) Ibid. 80. 
 
 (c) 13 Eliz. c. 5, s. 6. (;) 5 Byth. Convey., by Jarman, 3rd. 
 
 (rf) Imray J). Magnay, 11 Mce. & W. ed. (Sw.) 50. 
 
 275. {m) Prid. Judg. 61. 
 
 (e) Per Lord Campbell, Uununctt v. 
 
 c 8 
 
 31
 
 32 JUGDMENTS BY AND AGAINST ONE. 
 
 Lands which he has appointed subsequently to the Judgment ; 
 unless the appointee be a purchaser without notice (n), for as 
 against him the Creditor's lien would have been displaced before 
 the 1 & 2 Vict. (o). 
 
 Lands of which he is cestui que trust ; provided the trust is a 
 bare and simple one (/>). 
 
 What chattels (ii.) As to Chattels real. 
 
 Legal terms of years are, as we have seen, lands within sect. 1 1 
 of 1 & 2 Vict. c. 110, and so, probably, would a simple trust of 
 a term be held to be (q), whether the term be absolute or deter- 
 minable on a life or lives, or be a yearly one, or at will, or at 
 sufferance, and whether it be in possession, or in reversion 
 expectant on a lease whereon rent is reserved. 
 
 So that most of what has been said above of realty applies 
 here, except that a chattel real of which the Debtor is joint 
 tenant will not be liable, if the Debtor die before the writ is 
 delivered to the sherifF(r). 
 
 Lands of which the Judgment Debtor is tenant by elegit are 
 in fact only a chattel interest, though held by him ut liberum 
 tenementum is). 
 
 What realty (iii.) Having specified the various species of realty and chattels 
 
 real no^ ifable, ^'^'^^ wliicli may be made available at Law for the payment of the 
 debt, it may appear superfluous to particularize those which may 
 not, upon the maxim " expressio unius est exclusio alterius ;" yet 
 it may help the reader to collect them in one view. They are 
 few. 
 
 1. Estates in reversion, remainder or expectancy; a Court 
 of Law having no power to sell such interests, and perception 
 of the rents and profits being in such cases impracticable. 
 From this rule, however, must be excepted (as we have seen) 
 reversions on leases for life or years, on which rent is reserved, 
 for there the reserved rent will be extended. A legal reversion 
 
 (n) 2 & 3 Vict. c. 11, s. 5. (7) Prid. Judg. 63. 
 
 (0) Doe dcvi. Wigan v. Jones, 10 B. (r) Ante, p. 22. 
 
 & C. 459. («) Co. Litt 42 a. Qucerc, whether 
 
 (p) Digby V. Irvine, 6 Jr. Eq. llcp., they are extendible on an elegit ? 
 144, 157 i Sugd. V. & P., G57, Uth ed.
 
 RIGHTS AT LAW. OO 
 
 on a mortgage for years by a freeholder is indeed cognizable at 
 Law (u), like any other vested future legal interest ; but, for the 
 reason above mentioned, cannot be reached ; therefore Judgment 
 will, in such a case, be with a cesset executio during the term, 
 which, in fact, amounts to no present right at all. 
 
 2. All Equities of Redemption [v), whether the mortgage be 
 of freeholds in fee or for years, or of copyholds, or of lease- 
 holds ; such rights being, by a refined and unsatisfactory but 
 well-established, distinction, not considered at Law as an estate 
 of which the mortgagee is " seised in trust" for the mortgagor 
 within section 1 1 ; nor, indeed, as an estate at all. 
 
 3. For the same reason, lands impressed with a trust for con- 
 version for the benefit of the Debtor, but not yet actually con- 
 verted; and lands which the Debtor is, or shall be, under a 
 contract to purchase for value, notwithstanding that in Equity 
 (whence surely alone the meaning of those words should be 
 ascertained), the legal owner is constructively " seised of them 
 in trust for" the Debtor, — those words, where they occur in 
 sect. 11, referring, as has been said, to cases only of simple and 
 express Trusts. 
 
 4. Lands of which the Debtor is equitable mortgagee. 
 
 5. Legal or trust Copyholds in the hands of a purchaser with- 
 out notice (w). 
 
 6. Trust freeholds, if purchased without notice before execu- 
 tion sued (x). 
 
 7. Advowsons, since they cannot be valued at any certain 
 rent, and are not saleable at Law (y). 
 
 8. The right of disposition which a. feme coverte has over pro- 
 perty settled to her separate use is not such a disposing power 
 as renders that estate extendible on a Judgment obtained 
 against her and her husband upon her promissory note made 
 during her coverture {z). 
 
 (iv.) As regards the personalty of the Debtor. And, firstly, personalty in 
 of his personal estate in possession. possession 
 
 The whole of this, if legal, i. e. if not held in trust for him, of 
 which he is sole owner, may be taken in execution, except his Exceptions. 
 
 (m) See infra, " Mortgages." (a-) Sugd. Concise View, 429- 
 
 (v) 3 Bacon's Abridgment, 382 ; («/) 3 Bacon's Abridgment, 382. 
 
 Sugd. V. & P. Uth ed. 665. («) Digby v. Irvine, 6 Ir. Eq. Rep. 
 
 («') 2 & 3 Vict. c. 11, s. 5. H*.
 
 34 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Choses in ac- 
 tion liable. 
 
 wearing apparel, bedding and tools of trade to the amount of 
 £5 (a). Money and bank notes (whether of the Bank of Eng- 
 land or any other bank) are liable (6). 
 
 But the landlord's right to rent for one year (c), (or for four 
 times of payment, if the tenement is let at a weekly rent {d),) is 
 paramount to the Judgment Creditor's right ; and growing crops 
 are liable to rent becoming due after the seizure and sale, in 
 priority to the same right (e). 
 
 Straw, threshed or unthreshed, straw of growing crops, chaff, 
 colder, turnips or manure, belonging to the Debtor, on lands let 
 him to farm, are also exempt from execution ; as also are (if he 
 has covenanted with his landlord to use them on, or not take 
 them off, the land) hay, natural or artificial grasses, tares, 
 vetches, or any roots or vegetables (/). 
 
 Chattels of which the Debtor is tenant in common, or joint 
 tenant, are liable ; but as regards those, of which he is joint 
 tenant, his death before the delivery of the writ will, as with 
 chattels real, defeat the Creditor ; and the jus accrescendi pre- 
 vails (^). 
 
 Secondly, as regards the personal estate of the Debtor in 
 action. 
 
 Cheques, bills of exchange, promissory notes, bonds, spe- 
 cialties and other securities for money (including, therefore, 
 mortgage deeds) " belonging to" him are liable (A), if his body 
 has not been taken in execution (i). Only such, however, of the 
 above-named choses in action as are legal (i. e. not held in 
 trust for him) appear to be liable. 
 
 It has been well suggested (J) that stocks and funds, over 
 which the Debtor has a general power of appointment, ought to 
 be bound by a charging order as well as those to which he is 
 absolutely entitled, thus placing his real and personal property in 
 this respect on the same footing. But the Legislature at present 
 maintains the distinction. 
 
 Securities of which he is joint tenant, as bonds of which he 
 is the co-obligee, are liable, unless he die before the writ be 
 delivered to the sheriff. 
 
 (a) 8 & 9 Vict. c. 127, s. 8. 
 
 (b) 1 & 2 Vict. c. 110, s. 12. 
 
 (c) 8 Ann. c. 14, s. 1. 
 
 (rf) 7& 8 Vict. c. 96, s. 67. 
 (e) 14 & 15 Vict. c. 25, s. 2. 
 
 (/) 56 Geo. 3, c. 50, s. 1. 
 
 (g) See ante, p. 22. 
 
 {h) 1 & 2 Vict. c. 110, s. 12. 
 
 (t) Ibid. s. 16. 
 
 (j) Jurist, October 16, 1858.
 
 RIGHTS AT LAW. 35 
 
 There is no such thing at Law as a tenancy in common of a 
 chose, in action (k). 
 
 Government stock, funds and securities, stocks or shares in Stock, 
 any pubHc company, incorporated or not, and whether held in 
 trust for the Debtor or not {I), and whether in possession, re- 
 mainder or expectancy, are also liable (/«). 
 
 Debts due to the Judgment Debtor may also be reached at Debts. 
 Law by the Creditor, and that summarily («) ; but they must be 
 legal, and not equitable, or unascertained ones {e.g. debts de- 
 pending on an account not yet taken between the mortgagor and 
 a mortgagee in possession (o) ), or the Court of Chancery will not 
 restrain the garnishee {i.e. the Judgment Debtor's Debtor) at the 
 instance of the Judgment Creditor from paying the Debtor (p). 
 Debts due to him, therefore, as a legal Mortgagee or Assignee 
 (with a power of attorney) of such a Mortgage, would be recover- 
 able, but not those due to him as equitable Mortgagee, nor any 
 equitable chose in action, as a legacy due to him, unless there 
 had been such an account settled, as would enable the legatee to 
 sue on it at Law (g). And the Judgment must be one strictly 
 so called ; for the attributes of a Judgment given to Decrees, 
 Orders and Rules, by 1 & 2 Vict., for the purposes of that Act, 
 cannot be extended, unless expressly (which they are not), to the 
 purposes of another Act (15 & 16 Vict. c. 76). „ 
 
 An unremoved Palatine Judgment, or Lancaster Decree or Palatine Judg- 
 
 Oj fv ,1 i. i> i. T_ merits, or Lan- 
 
 rder tor the payment oi money, costs, charges or expenses, caster Decrees 
 
 affects the same species of realty and chattels real, within the °^ Orders. 
 Jurisdiction, as a Westminster Judgment does anywhere, subject 
 to the same proviso, that the Debtor's person has not, unless for 
 fraud, been taken in execution. And such a Judgment, Decree 
 or Order likewise affects, within the Jurisdiction, the same spe- 
 cies of personalty as a Westminster Judgment : personalty within 
 ss. 12 and 14 of I & 2 Vict. c. 1 10, by the clause {r) which enacts, 
 that " all the remedies, authorities and provisions of the Act shall 
 extend" to the Palatine Common Law Courts, and by s. 24 of 
 13 & 14 Vict. c. 43; and general personalty in possession, by 
 reason of the Palatine Common Law Courts being, as Courts of 
 Record (s), King's Courts (^), (the only circumstance which gives 
 
 (/f) Wms. P. P. 24 k (p) Clarke v. Perry, 3 W. R. 387. 
 
 (Z) 1 & 2 Vict. c. 110, s. U. {q) M'Dowall v. Hollister, 25 L. T. 
 
 (w) 3 & 4 Vict. c. 82, s. 1. 185. 
 
 (n) C. L. P. Act, 1854 (17 & 18 Vict. (r) Sect. 21. 
 
 c. 125), s. 60. (.,) 3 Steph. Black. 437. 
 
 (o) Arch. Pr. 655. (<) Co. Litt. 118a. 
 
 d2
 
 36 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 3. 
 Palatine Rules, 
 or Durham 
 Decrees or 
 Orders. 
 
 New County 
 Court Judg- 
 ments. 
 
 Rules. 
 
 Judgments 
 within sect. 22 
 of 1 & 2 Vict, 
 and other 
 Judgments. 
 
 the Westminster Common Law Courts power to reach it (u) ), and 
 by reason of the Lancaster Court of Chancery having power 
 given to it (w) to issue Avrits of Ji. fa. 
 
 The powers of the garnishee clauses to recover summarily 
 legal debts due to the Debtor, within their Jurisdiction, are 
 expressly extended to the Palatine Common Law Courts (x). 
 
 Unremoved Palatine Rules and Durham Decrees and Orders 
 seem to have had the effect of Westminster Judgments given 
 them no further than as against the realty and chattels real of 
 the Debtor within the Jurisdiction (y). Had ss. 18 and 21 of 
 1 & 2 Vict. c. 110 included such Rules, Decrees and Orders, 
 it would have been unnecessary to comprise them in s. 2 of 
 18 & 19 Vict. c. 15; and that section hmits the power given 
 them to the lands of the Debtor. 
 
 Personalty, therefore, within ss. 12 and 14 of 1 & 2 Vict, 
 c. 110, or s. 1 of 3 & 4 Vict c. 82, would seem not to be reached 
 by them ; whilst, as regards personalty in possession, not being 
 Judgments at all, quoad such property,^. /as. or elegits cannot 
 be issued upon them, either by the Common Law or by the 
 statute of Edw. L, nor can debts due to the Debtor be recovered 
 upon them, under 15 & 16 Vict. c. 76, s. 60. 
 
 Unremoved (New) County Court Judgments are available 
 against goods and chattels, (i e., all legal choses in possession,) 
 including legal terms of years, — which are, though trust lease- 
 holds are not, " goods and chattels" within the County Court pro- 
 cess (z), — if within the Jurisdiction. Power is expressly given 
 to a Creditor by Judgment of these Courts to reach personalty 
 of the description in s. 12 of 1 & 2 Vict. c. 110(a). 
 
 But realty, though within the Jurisdiction, cannot be reached 
 by him; nor personalty of the description mentioned in s. 14 of 
 1 & 2 Vict, or s. 1 of 3 & 4 Vict. c. 82 ; nor debts due to the 
 Judgment Debtor, unless the Common Law Procedure Act, 1854, 
 be, as it may be (A), expressly applied to any County Court. 
 
 (New) County Court Rules cannot reach any property of the 
 Debtor, being in no respect equivalent to Judgments of those 
 Courts. 
 
 Unremoved Judgments and Rules of Inferior Common Law 
 Courts within s. 22 of 1 & 2 Vict, and of Inferior Courts, other 
 than New County Courts, not within s. 22, are available against 
 
 (tt) 13 Edw. 1, St. 1, c. IS. 
 (w) 18 & 19 Vict. c. 15, s. 2. 
 (x) C. L. P. Act, 1854, s. 100. 
 (y) 18 & 19 Vict. c. 15, s. 2. 
 
 (z) Bennct v. Powell, 3 Drew. 326. 
 (a) 9 & 10 Vict. c. 95, s. 96. 
 (ft) C. L. P. Act, 185 i, s. 105.
 
 RIGHTS AT LAW. 
 
 37 
 
 such species of the real estate and chattels real of the Debtor, as 
 the charter or prescriptive usage of the particular Court, or its 
 special Act, enables it to reach (d). If it has power to issue 
 fi. fas., then legal choses in possession generally, and personalty 
 within s. 12 of 1 & 2 Vict. c. 110 (if within the local Jurisdic- 
 tion), would seem liable ; but not debts due to the Debtor, unless 
 the Common Law Procedure Act, 1854, has been applied to 
 it{e); nor personalty within s. 14 of 1 & 2 Vict. c. 110, or s. 1 
 of 3 & 4 Vict. c. 82. 
 
 As to Judgments of the House gf Lords on Appeal from the 
 Courts of Common Law, and of the Judicial Committee of the 
 Privy Council on appeal from the Common Law Court of the 
 Lord Warden of the Stannaries (the only Common Law Court 
 from which an appeal lies to the Judicial Committee), see Ap- 
 pendix, Table of Courts. 
 
 Section 5. 
 Rights in Equity. 
 
 1. Westminster Judgments and their 
 Equivalents. 
 Realty liable. 
 Chattels Real. 
 Personalty in Possession, 
 
 Choses in Action. 
 
 2. Palatine Judgments and their Equiva- 
 
 lents. 
 
 3. Decrees and Orders of other Courts of 
 
 Equity. 
 
 A Creditor by a Westminster Common Law Judgment or Westminster 
 Rule, or by a Decree or Order of the High Court of Chancery, Judgments and 
 
 ^ J r> ./ J their equiva- 
 
 of the Lord Chancellor, or of the Court of Appeal in Chancery lents. 
 sitting in Bankruptcy or Lunacy, or of any Courts of Bank- 
 ruptcy, provided such Decrees or Orders are equivalent to 
 Westminster Judgments {f) may, by virtue of 1 & 2 Vict. 
 c. 110, if he has not caused the person of the Judgment Debtor 
 to be taken or charged in execution {g), be paid, in Equity, out 
 of the whole of his freehold, customary freehold and copyhold Realty liable. 
 land, advowsons, (lay) rectories, (lay) tithes, and rents, wherever 
 situate in England or Wales, whether in possession, remainder, 
 reversion or expectancy, of or to which he shall at the time of 
 entering such Judgment, drawing up such Rule, or pronouncing 
 such Decree or Order, or at any time before its discharge, be 
 seised, possessed or entitled, whether held in trust for him or 
 
 (rf) See Appendix, Table of Courts. 
 
 (e) Sect. 105. 
 
 (/) What are, ante, p. 6. 
 
 {g) 1 & 2 Vict. 0. 110, s. 16. What 
 is such a charging in execution, post, 
 Sect. 8.
 
 38 JUDGMENTS BY AND AGAINST ONE. 
 
 not, whether in fee simple, fee tail, for life or lives, or over which 
 the Debtor has or shall have a sole power of disposition for his 
 own benefit {h). 
 
 Where the Judgment Debtor is tenant in tail in possession, 
 he will be ordered in Equity to execute a disentailing deed at 
 the instance of the Judgment Creditor, notwithstanding that the 
 Judgment is, under the Act, a valid charge as against the issue 
 and remainderman (i). 
 
 Under the above descriptions of property the following will 
 be found to be included. 
 
 All equities of redemption, whether of mortgages of freeholds 
 in fee or for years, or of copyholds, or of leaseholds {k). 
 
 Lands which the Debtor has contracted to purchase for 
 value (Z), but not Lands which, before the Judgment, he has 
 aliened with intent to defraud Creditors, for, although such an 
 alienation may be set aside by the Creditor under 13 Eliz. c. 5, 
 yet, the settlement being good as against the Debtor himself, 
 they are not lands over which he had a disposing power exer- 
 ciseable "without the assent of any other person" (»i). 
 
 However, the Judgment Creditor is not a purchaser within 
 27 Eliz. c. 4, so as to be able to invalidate the prior conveyance 
 under that Act (n). 
 
 Lands which, subsequently to the Judgment, the Debtor has 
 aliened, or agreed to aliene, for value to a Purchaser with notice 
 (and a Mortgagee, whether Legal or Equitable, is pro tanto a 
 Purchaser), or to a voluntary alienee with or without notice ; for 
 they " claim under him after such Judgment" (o). 
 
 Unpaid purchase money of lands which the Debtor is, at the 
 date of the Judgment, under an agreement to sell for value, if 
 the Purchaser has received notice of the Judgment (/;) before 
 payment; secus, if he has paid before the Judgment (§') ; but the 
 Judgment would not bind the lands themselves (r) ; and so of 
 lands conveyed before the Judgment in trust for sale (5). It 
 
 (/O 1 & 2 Vict. c. no, s. 13. M. & G. 522. 
 
 (J) Lewis t^. Buncombe, 20 Beav. 398. (o) 1 & 2 Vict. c. 110, s. 13. 
 
 (A-) Sugd. V. & P. 11th ed. 667. (p) Forth t;. Dukeof Norfolk, 4 Madd. 
 
 (/; Baldwin v. Belcher, 1 J. & L. 504. 
 
 18 ; Governors of Grey Coat Hosi)ital v. {q) Sugd. Concise View of V. & P. 
 
 Westminster Improvement Commis- 415 ; 5 Jarm. Byth. (Sweet), 3rd ed. 47. 
 
 sioners, 5 W. R. 854. (r) Lodge v. Lysley, 4 Sim. 75 ; Prid. 
 
 (m) Evans v. Evans, 5 Ir. Jur. 21 ; on Judg. 20. 
 
 cited in Beavan v. Lord Oxford, 4 W. R. («) Sugd. Concise View of \. & P. 
 
 275. 429. 
 
 («) Beavan v. Lord Oxford, C De G.
 
 RIGHTS IN EQUITY. 39 
 
 seems difficult, therefore, to understand the remark of an eminent 
 text writer, that " it seems still unsettled by authority, whether 
 lands subject to a trust for sale are Hable to a Judgment Creditor 
 of a party entitled to the proceeds of the sale" (t), 
 
 A bona Jide Purchaser for value, who, prior to the Judgment, 
 has paid a deposit and entered into possession, and is evicted at 
 Law by the Judgment Creditor, may obtain an injunction against 
 him in Equity (m). Judgments, however, obtained against the 
 Vendor subsequently to the Contract, and prior to completion, 
 are in practice considered as liens, and it is incumbent on the 
 Vendor to procure discharges for the security of the Pur- 
 chaser (y). 
 
 Lands over which the Debtor has, at the date of the Judg- 
 ment, a joint unexercised power of appointment by deed, with an 
 ulterior interest in himself; unless the power be, subsequently to 
 the Judgment, exercised in favour of a Purchaser without 
 notice (x). 
 
 Lands which he has the power of appointing by will (y). 
 
 Lands of which he is joint tenant, though he die in the life 
 of his co-tenant (z). 
 
 Lands held by him in coparcenary or in common (a). 
 
 Lands of which the Debtor is legal or equitable mortgagee, 
 if the mortgage has not been paid off (6), or on which he has 
 any legal or equitable charge by covenant or will. Thus, a 
 Judgment, though payable at a future day, and subject to be 
 defeated, has been held a charge on an annuity bequeathed to 
 the Debtor, and payable out of real estate (c), and on land, 
 which a third person covenanted with the Judgment Debtor 
 should stand charged with a gross sum {d). 
 
 Chattels real, whether legal or equitable (e), are lands within Chattels real. 
 s. 13 of 1 & 2 Vict., so that all that has been said of realty applies 
 to them ; and as they are bound in Equity, from the entry of the 
 Judgment, drawing up the Rule, or pronouncing the Decree 
 
 (O Lewin on Trusts, 3rtl ed. 656. Vict. c. 15, s. 11. 
 
 (ii) Bruntoni;. Neale, 14- L.J,, Ch. 18. (c) Younghusband v. Gisborne, 1 De 
 
 (t)) 3 Prest. Abstr. 329. G. & Sm. 209; Harris v. Davison, 15 
 
 (x) Prid. on Judg. 80. Sim. 128. 
 
 (ij) Ibid. 67. (d) Russell v. M'Culloch, 1 Kay & J. 
 
 (a) Ibid. G6. 213. 
 
 (a) Ibid. (e) Gore v. Bowser, 24 L. J., Cli. 316, 
 
 (b) Clare v. Wood, 4 Hare, 81 ; Sugd. 440. 
 Cone. View of V. & P. 421 ; 18 & 19
 
 possession. 
 
 40 JUDGMENTS BY AND AGAINST ONE. 
 
 or Order, the death of a joint tenant Debtor after the Judgment 
 would not defeat it. 
 
 And the Judgment Creditor has a lien on the proceeds of 
 leaseholds sold after legal execution against them if). 
 Personalty in The Debtor's legal personalty in possession is not liable in 
 
 Equity (except under an equitable execution as presently men- 
 tioned), for the same remedy, viz. sale, can be had against it at 
 Law. 
 
 But all his personalty in possession in which he has only an 
 equitable interest, and which cannot, therefore, be reached at 
 Law, either by a legal or equitable execution, is liable in Equity. 
 Among his equitable personalty are to be reckoned all ulterior 
 limitations of it, whether by will or act inter vivos (a Court of 
 Law considering in all these cases, except in the case of exe- 
 cutory bequests and of chattels real, the first taker to be the 
 absolute owner), and all personalty held in trust for the Debtor ; 
 and all equitably converted real estate, which is, in the con- 
 templation of Equity, personalty. 
 
 The Creditor may also, under 13 Eliz. c. 5, follow personalty 
 fraudulently conveyed before Judgment, or between Judgment 
 and Execution, and set aside the conveyance as fraudulent {g). 
 Choses in ac- Legal choses in action which may be reached at Law under 
 
 s. 12 of 1 & 2 Vict. c. 110, will, for the same reason as legal 
 choses in possession, not be the subject for equitable relief, viz. 
 that an adequate relief can be had at Law. 
 
 Equitable choses in action, however, of the kind mentioned in 
 s. 12, but not within it, as being held in trust for him, are 
 available in Equity, e. g., a mortgage or bond debt settled in 
 trust for, or a Policy of Lisurance assigned to, the Debtor. So 
 personalty within s, 14 of 1 & 2 Vict. c. 110, and of s. 1 of 
 8 & 4 Vict. c. 82, and to which, though held in trust for the 
 Debtor, the Creditor has under those sections a right at Law, 
 and has obtained a charging order at Law, is made available in 
 Equity ; the benefit of that order being realized in Equity {h). 
 
 Choses in action are within the 13 Eliz. c. 5(e), although the 
 words used there are " goods and chattels ;" so that a fraudulent 
 alienation of them by the Debtor, either by way of absolute 
 assignment or of security, before Judgment, or between Judg- 
 
 (/) Ibid.' (?) Wms. R. P. 237; Barrack v. 
 
 (g) King V. Marissal, 3 Atk. 192. M'Culloch, 3 Kay & J. 110. 
 
 (h) Post, Sect. 8. 
 
 tion
 
 RIGHTS IN EQUITY. 41 
 
 ment and Execution, would be liable to be set aside by the 
 Judgment Creditor under that Act, equally with personalty in 
 possession. „ 
 
 Unremoved Palatine Judgments and Rules, and Decrees and Palatine Judg- 
 Orders of the Courts of Chancery of Lancaster {k) and Dur- their equiva- 
 ham (I), are available in the Palatine Equity Courts against the lents. 
 Debtor's realty and chattels real, and against the same species 
 thereof, if within the respective Jurisdictions, as Westminster 
 Judgments and their equivalents ; and with the same proviso, it 
 is presumed, that the Debtor's person has not been charged in 
 execution, although s. 16 of 1 & 2 Vict. c. 110, is not expressly 
 applied to those Com-ts by the 18 & 19 Vict. c. 15. 
 
 It would seem that personalty within ss. 12 and 14 of 1 & 2 
 Vict. c. 110, and s. 1 of 3 & 4 Vict. c. 82, is liable in the Palatine 
 Equity Courts, under the same circumstances as in the High 
 Court, provided it be within the Jurisdiction ; and personalty in 
 possession, under the inherent power of Equity to reach per- 
 sonalty, which there is an impediment in reaching at Law (m). 
 
 As to the liability of the Debtor's property to Decrees and Decrees and 
 Orders of the Inferior Courts of Equity, see Appendix, Table otiig^Courts of 
 
 of Courts. Equity. 
 
 As to its liability to Decrees of the House of Lords on appeal 
 from the Equity Courts, or of the Judicial Committee of the 
 Privy Council on appeal from the Lord Warden of the Stan- 
 naries sitting in Equity, or from the Court of Chancery of 
 Durham, the only two Equity Courts from which appeal lies to 
 the Privy Council in matters of debt, see Appendix, Table of 
 Courts. 
 
 (k) 13 & 14 Vict. c. 43, s. 24. {m) Post, Sect. 8. 
 
 (l) 18 & 19 Vict. c. 15, s. 2.
 
 42 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Section 6. 
 Judgments, and their Effects, prevented. 
 
 1. At Law. 
 
 (i.) Before or after Judgment signed. 
 Proceedings by Plaintiff. 
 
 Motion for Judgment Non ob- 
 stante veredicto. 
 Restitution. 
 Motion to set aside a Nonsuit. 
 By Defendant. 
 
 Motion for arrest of Judgment. 
 Motion to set aside Verdict. 
 By Plaintiff or Defendant. 
 Motion for a Repleader. 
 Motion for a Trial de novo. 
 
 Motion for a New Trial. 
 Restitution. 
 (ii.) After Judgment signed. 
 Error. 
 In Law. 
 In Fact. 
 
 Bill of Exceptions. 
 Setting Judgment aside. 
 
 2. In Equity. 
 
 Injunctions. 
 
 3. Staying Execution of Decrees and 
 
 Orders. 
 
 1. 
 At Law. 
 
 (i-) 
 Before or after 
 signing Judg- 
 ment. 
 
 The following proceedings either by the plaintiff or defendant 
 will, if taken in time, prevent the opposite party from signing 
 Judgment, or, at least, from availing himself of his legal exe- 
 cution thereon. If taken in time they will also operate as a 
 stay of the Judgment Creditor's proceedings in Equity to enforce 
 his Judgment there ; at least in cases where it is necessary 
 to sue out legal Execution before proceeding in Equity. It 
 is hardly necessary to observe that the modes of preventing 
 Judgments and their effects, which we are about to consider, 
 relate only to Common Law Judgments strictly so called, and 
 not to their equitable equivalents. 
 
 Proceedings by 
 Plaintiff. 
 
 Judgment non 
 obstante vere- 
 dicto. 
 
 And, first, as to the modes at Law of preventing the effect of 
 a Judgment by proceedings on the part of the plaintiff. 
 ■ 1. A motion for Judgment non ohstante veredicto. 
 
 This, as is evident from its name, is a proceeding open to 
 him only on Judgment upon Verdict, after trial ; and must be 
 taken in respect of an intrinsic objection, such as involves the 
 substance and merits ; as where the plaintiff has taken issue on 
 the truth of a plea, instead of demurring to it. He may then 
 move that, " notwithstanding the verdict for defendant," Judg- 
 ment may be given in his (the plaintiff's) favour (g'). But it can 
 only be so given, where the plea has been one of " confession and 
 avoidance," i. e. has admitted the truth of the facts in the " de- 
 claration," but shown some new fact tending to take off its legal 
 effect. The Judgment is, moreover, interlocutory only : if ob- 
 tained on all the pleas, and if the verdict was general for the 
 
 (7) Arch. Pr. 1454.
 
 JUDGMENTS, AND THEIR EFFECTS, PREVENTED. 43 
 
 defendant, the plaintiff may sue out a writ of inquiry to assess 
 the damages (r). 
 
 He must move within four days from the day of trial, or (if 
 the trial was in term) of the ensuing term, unless the motion was 
 entered in the list of postponed motions by leave of Court (s). 
 The party whose pleading is alleged or admitted to be defective 
 may, by leave of the Court, " suggest" on the motion the ex- 
 istence of the matter which, if true, would remedy the defect : 
 and such suggestion may be pleaded to by the opposite party 
 within eight days after notice or further time appointed by the 
 Court or a Judge, and the trial of issue joined on such pleadings 
 shall proceed as in ordinary actions (t). The Judgment shall 
 follow the result of such suggestion, and the Court shall adjudge 
 to the party against whom it shall be given the costs of the 
 trial of any issues of fact arising out of the pleading, for defect 
 of which such Judgment is given, upon which such party shall 
 succeed ; which costs shall be set off against costs or money 
 adjudged to the opposite party, and execution issue for the 
 balance {u). 
 
 If the defendant has already had execution, restitution will be Restitution. 
 awarded to the plaintiff if he succeed in his motion (v). 
 
 2. A motion to set aside a nonsuit and enter a verdict for the Setting aside 
 plaintiff. "°"'""- 
 
 This is where the plaintiff has been nonsuited on a verdict ; 
 and lies, where the Judge at Nisi Prius has nonsuited him with 
 his leave, but given him leave so to move. On such a motion 
 the Court may, instead of allowing a verdict to be entered, send 
 the case down for a new trial (x). 
 
 The motion must be made within the same time as one for a 
 Judgment non obstante veredicto {y). 
 
 Secondly. Of proceedings on the part of the defendant. 
 
 1. Motion in Arrest of Judgment. 
 
 This may be made for whatever objection, in substance, the Proceedings 
 
 defendant might have taken, but did not take, by demurrer. But ^^"^ Defendant. 
 
 the objection must be intrinsic in the Record {z), and the motion 
 
 must be made within the same time (a), and the defendant has Arrest of Judg- 
 ment. 
 
 (/•) Ibid. 14oJ. (a,) Ibid. 1435. 
 
 (*) R. 50, H. T. 1853. [y) R. 50, H. T. 1853. 
 
 (0 C. L. P. Act, 1852, s, 143. (2) Arch. Pr. 1458. 
 
 (u) Ibid. s. 145. (a) R, 50, H. T. 1853. 
 (r) Arch. Pr. 1456.
 
 44 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Setting aside 
 verdict. 
 
 the same power of entering a " suggestion," and the Court of 
 adjudging costs, as on a motion for a Judgment non obstante 
 veredicto (h). The proceedings on the argument are the same 
 as on a new trial. 
 
 Judgment on trial before the Sheriff under 3 & 4 Will. 4, 
 c. 42, may also be arrested (c). 
 
 2. Motion to set aside a verdict for the plaintiff and enter a 
 nonsuit. 
 
 This also lies where the Judgment for the plaintiff has been 
 on verdict after trial, and may be made where the Judge at Nisi 
 Prius (being doubtful whether the action would lie), let the 
 plaintiff take a verdict, with liberty to the defendant to move to 
 enter a nonsuit (c?). But it cannot be made without such leave, 
 and must be made within the same time as a motion on Judg- 
 ment non obstante (e). The Court may, instead of allowing a 
 nonsuit to be entered, send the cause down for a new trial (f). 
 
 Proceedings 
 for plaintiif or 
 defendant. 
 
 Repleader. 
 
 Trial de novo. 
 
 New trial. 
 
 Thirdly, proceedings for either the plaintiff or defendant. 
 
 1. Motion for a Repleader. 
 
 This is after trial, and is awardable where the plea on which 
 issue was joined was immaterial, or there was no definite issue. 
 The Judgment is "quod -partes replacitent.'" The Court will 
 not award it, if it will not effect substantial justice between the 
 parties, nor in favour of the party who made the first fault in 
 pleading, if the issue was found against him(^). 
 
 2. Motion for a trial de novo (formerly a venire de novo). 
 
 This is awardable for a defective finding in the verdict, ap- 
 parent on the face of the Record, such defect not being capable 
 of amendment (Ji). 
 
 3. Motion for a new trial. 
 
 The chief grounds for this, which arises of course only on 
 Judgments on Verdict, are — the mistake of the Judge who 
 tried the cause, default or misconduct of an officer of the Court 
 or of the Jury, or of the witnesses, or of the opposite party, or 
 the absence of his counsel or attorney, or discovery of fresh 
 evidence, or of surprise, causing a substantially wrong verdict (^), 
 (or where, as has been seen, leave having been given at the trial 
 to move to set aside a verdict or nonsuit, the Court has sent 
 
 (i) C. L. P. Act, 1852, ss. 14.3, 145. 
 
 (c) Arch. Pr. .397. 
 
 id) Ibid. 1437. 
 
 {e) R. 50, H. T. 1853. 
 
 (/) Arch. Pr. 1437. 
 [g) Ibid. 1456. 
 {h) Ibid. 1452. 
 (i) Ibid. 1424.
 
 JUDGMENTS, AND THEIR EFFECTS, PREVENTED. 45 
 
 the cause down for a new trial) (k), or for any other matter ex- 
 trinsic to the Record, showing that Justice has not been done, 
 at the trial, between the parties. 
 
 The motion must be made within the time required for one on 
 a Judgment von obstante (Z). 
 
 A new trial, or new inquiry before the sheriff, may be also 
 granted, and a new trial had thereon, as where the trial was 
 before the Judge at Nisi Prius (m). 
 
 Execution may have issued before a new trial can be moved Restitution, 
 for: if so, the party may add to the terms of his motion that 
 Judgment and execution be set aside, and that he may have 
 restitution of the property taken in execution (n). ,.. 
 
 The following proceedings, after Judgment is signed, are open After Judg- 
 for either the plaintiff or defendant. Error may be brought any '"'^"'^ ^'^"^ * 
 time within six years after the Judgment is signed (o) (except 
 Judgments within the Bills of Exchange Act, which, or exe- 
 cutions whereon may, however, be stayed or set aside by the 
 Court or a Judge) (p), or after cesser of the disability of the 
 party bringing it, of minority, lunacy, marriage or absence 
 abroad {q). Error may be either in Law or in fact. 
 
 Error in Law supersedes execution from the time of ser- Error in Law. 
 vice on the opposite party of the copy of a note of the receipt 
 by the Master of the memorandum alleging error, until default 
 in putting in bail, or an affirmance of the Judgment or dis- 
 continuance of the proceedings in Error, or until such pro- 
 ceedings shall be otherwise disposed of without reversing the 
 Judgment (r). 
 
 Error in Law is now brought by " suggestion" on the Judg- 
 ment Roll, that error is alleged by the one party or denied 
 by the other ; and Error in fact, by delivering to a Master of 
 the Court a written memorandum, alleging that there is such 
 error {s). 
 
 One of several Judgment Debtors may bring error in Law or 
 in fact, and may continue it ; and enter the " suggestion," though 
 the others decline. If they all join, the " suggestion" shall state 
 them to be all plaintiffs in error {t). 
 
 For the effect of death, and marriage of plaintiffs or defendants 
 
 (A-) Ante, pp. 43, 44. (p) 18 & 19 Vict. c. 67, s. 3. 
 
 (0 R. 50, H. T. 1853. (q) C. L. P. Act, 1852, s. 147. 
 
 (w) Arch. Pr. 940. (r) Ibid. ss. 149, 150. 
 
 (») 1 Will. 4, c. 7, s. 4. {s) Ibid. s. 149. 
 
 (o) C. L. P. Act, 1852, s. 146. (t) Ibid. s. 154.
 
 46 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Bill of ex- 
 ceptions. 
 
 Setting aside 
 Judg-ment. 
 
 In Equity. 
 
 in " error," whether of fact or Law, and the proceedings to be 
 taken thereon, see 15 & 16 Vict. c. 76, ss. 161 — 167. 
 In fact. Error in fact is so far a supersedeas of execution, that after 
 
 service on him or his attorney of a copy of the note (of the 
 receipt of the memorandum) and affidavit, the Judgment Cre- 
 ditor cannot sue out execution without leave of the Court or a 
 Judge (m). It is brought by dehvering to a Master of the Court 
 a written memorandum, alleging that there is such error {x). 
 Restitution. If before error brought execution has issued against the party 
 
 who succeeds in error, he may have restitution by writ of resti- 
 tution, either with or without a previous security, according as 
 the money has or has not been paid over, by a mere application 
 to a Judge or the Court {y). 
 
 Error in Law is the mode for proceeding on a Bill of Ex- 
 ceptions, which may be tendered where the Judge at the trial 
 of a cause in his direction or decision mistakes the Law {z), 
 or nonsuits the plaintiff against his will (a). 
 
 A regular Judgment may be set aside at Law on an affidavit 
 of merits ; and, in ordinary cases, it is almost a matter of course 
 to grant the application (b). 
 
 Among the modes of preventing the effect of a Judgment are 
 to be reckoned not only those which the Courts of Law them- 
 selves furnish for setting aside Judgments unfairly obtained, the 
 existence or exercise of which power does not prevent the party 
 affected by the Judgment from filing his bill to be relieved from 
 it in Equity (c), but also that class of cases, " almost infinite in 
 their nature and circumstances" {d), in which Equity will stay 
 Injunctions. proceedings at Law. This it does by Injunction, which may be 
 temporary or permanent, total or partial, qualified or uncondi- 
 tional, and may, on a proper case, be granted at any stage of 
 the suit (e). 
 
 Thus, it will sometimes be granted to stay trial ; sometimes, 
 after verdict, to stay Judgment ; sometimes, after Judgment, to 
 stay Execution; sometimes, after Execution, to stay the money 
 in the hands of the Sheriff on a. fi.fa., or the delivery of posses- 
 sion on an elegit f). 
 
 The sole ground, however, on which such an Injunction will 
 
 (m) Archb. Pr. 543. (c) Williams t). Roberts, 8 Hare, 324. 
 
 (x) C. L. P. Act. 1852, s. 158. (d) 2 Story's Eq. Jurisprudence (6th 
 
 (y) Archb. Pr. 537. cd.), s. 885. 
 
 (z) Ibid. 410. (e) Ibid. s. 886. 
 
 (a) Ibid. 415. (/) Ibid. 
 
 {h) Ibid. 924.
 
 . JUDGMENTS, AND THEIR EFFECTS, PREVENTED. 47 
 
 be granted is that from certain Equitable circumstances, it is 
 against conscience that the party inhibited should proceed. 
 This, it must be confessed, is but a loose way of stating the 
 case ; but, to be more particular, since discovery on the oath of 
 the parties (^) (once the peculiar province of Equity), and the 
 inspection (A) and compulsory production of documents (i) is now 
 open to Courts of Law, those objects would seem withdrawn 
 from the grounds of Equitable interposition. Accident, mistake, 
 and fraud, however, still remain ; accident as, e. g., where an 
 Executor loses assets by an accidental fire, and is sued by a 
 Creditor of the testator at Law. Mistake, as where a Judgment 
 is had against a Debtor, who has paid a debt, but mislaid the 
 receipt, and after Judgment discovers it ; or where an Execution 
 has issued against partnership effects for a separate debt. 
 
 But the great mass of cases in which such an Injunction will 
 be granted, is where the rights of the party applying for it are 
 wholly Equitable in their nature, e. g., where Execution has 
 issued against the separate estate of the wife for the debt of the 
 husband, or against the trust estate for the debt of the trustee (k). „ 
 
 As regards Decrees and Orders in Equity, their immediate Staying Exe- 
 enforcement will not be avoided by the unsuccessful party crees? ° 
 adopting any of the three means open to him, viz. : — 
 
 (i.) That of presenting a petition of re-hearing before the 
 same Judge (if the Decree or Order has not been 
 enrolled), 
 (ii.) That of appeal to the proper Appellate Court, 
 (iii.) That of a Bill of Revivor, if the Decree or Order be 
 enrolled, 
 unless by special order, which the Court is loath to make, unless 
 in cases where irreparable mischief would ensue from the pro- 
 secution of the Order or Decree ; but it is discretionary with 
 the Court to stay Execution, though such a case be not made 
 out(0. 
 
 A Bill of Revivor may be for error in Law or discovery of 
 new matter (in the latter case by leave of the Court). 
 
 ig) 14 & 15 Vict. c. 99 (New Evi- (A-) Newlands v. Paynter, 4 M. & Cr. 
 
 dence Act), s. 2. 408. 
 
 (7t) Ibid. s. 6. Roberts on Principles {I) Corporation of Gloucester v. 
 
 of Equity, 200. Wood, 3 Hare, 150. 
 
 (i) C. L. P. Act, 1854, s. 50.
 
 48 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Section 7. 
 Legal Remedies. 
 
 1. Westminster Judgments and Rules, 
 V. Personalty in Possession. 
 V. Choses in Action. 
 V. Chattels Real. 
 V. Realty. 
 
 Action on Judgment. 
 
 Ca. Sa. 
 Attachinent. 
 Proceedings v. Sheriff. 
 Outlawrij. 
 
 2. Palatine Judgments and Rules. 
 
 3. Equitable and Bankruptcy Executions. 
 
 Westminster 
 Judgments v. 
 Personalty in 
 possession. 
 
 Fi. fa. 
 
 Venditioni 
 exponas. 
 
 Money and 
 Bank notes. 
 
 Cheque in 
 Accountant- 
 General's 
 OfHce. 
 
 Elegit. 
 
 Subject to the previous modes of preventing Execution, if the 
 Debtor has personalty liable to it, — speaking here only of a Cre- 
 ditor by a Westminster Judgment (strictly so called) or Rule, — 
 he may proceed against it by suing out of the Court, in which 
 he has recovered Judgment, or obtained a Rule, a. fieri facias (m) 
 (if he M^ishes it sold) or an elegit (n) (if he wishes it appraised 
 and delivered to him in specie) directed to the Sheriff of the 
 County in which the personalty is situate ; who, if the writ be a 
 fi.fa., will thereupon seize into his own hands, and sell all or 
 so much as is necessary (handing the proceeds over to the Cre- 
 ditor) for the best price that he can get ; or (if no sufficient price 
 is offered, and the Creditor has procured, as he may, a writ of 
 venditioni exponas, on the return of the Sheriff, that he has taken 
 goods, but cannot sell them), for any price (o). But the Sheriff 
 may, and ought to sell, without a venditioni exponas (p). 
 
 Upon a fi. fa. money and Bank notes may be seized by the 
 Sheriff, and delivered to the Creditor; and cheques, bills of 
 Exchange, promissory notes, bonds, specialties and other se- 
 curities (provided the Debtor's person has not been taken in 
 Execution) (g) may be seized and sued on at Law in the Sheriff's 
 name (the Creditor first indemnifying him in a bond with two 
 sureties) (r), and the amount recovered paid over to the Creditor, 
 the surplus to the Debtor. 
 
 If the cheque be in the office of the Accountant- General, the 
 Creditor may petition the Court of Chancery for leave for the 
 Sheriff to seize it (s). 
 
 If the writ be an elegit, the Sheriff shall impanel a Jury to 
 inquire into, and appraise the value of all the goods (except his 
 oxen and beasts of plough) and lands, and on the return of such 
 
 (m) For General Form of Fi. fa. see 
 Chitty's Forms (7th ed.), 290. 
 
 (n) For General Form of Elegit, see 
 Chitty's Forms, 324. 
 
 (o) Archb. Pr. 622. 
 
 {p) Ibid. 
 
 ((/) Ante, p. 29. 
 
 (r) 1 & 2 Vict. c. 110, s. 12. 
 
 (s) Watts V. Jeffreycs, 3 M. & G. 722.
 
 49 
 
 LEGAL REMEDIES. 
 
 Inquisition sl,all deliver tl,e goods, -«f f'^^^f •"''■; Editor 
 beasts of plougl.. into the possession of tl.e Judgment Cred.tor. 
 to be held by him in satisfaction of the debt (()• 
 
 The pro^ty will be sold or appraised on the assumption 
 that the Debtor is the absolute owner of it, although, m fact he 
 has only a present limited interest in it, smce Courts of Law 
 coLider' as'we have seen, the first taker of pe-"alty (otW 
 than chattels real), unless he take them under an executory be- 
 quest, the absolute owner (u) 
 
 As to choses in action withm s. 14 of 1 & 2 \ .ct. c. 1 lu, ana ^^^^^^ 
 s 1 of 3 & 4 Vict. c. 83, the Creditor may obtain from a Judge 
 of a Superior Court of Common Law at Westminster an order 
 It to be afterwards made absolute (.), which shall operate as 
 T&tringa. on the Bank of England or other Cotnpany wdro 
 thall be'answerable to the Creditor for the P«. f «™ ; 
 ferred after notice of the order (y). Having made h,s order 
 ab olute, he can obtain no further remedy at Law; the Legts- 
 lature with singular inconsistency, obliging him to come .no 
 EquTty for ^i.e.e.tual satisfaction, for there alone (.t would 
 seem) the "benefit of his charge" (-') ean be obtamed. The 
 Bank is (notwithstanding the charging order) bound to pay the 
 dividends, if the fund be a trust fund, to the trustees (a). 
 
 It wouU seem, that a Creditor by Decree or Order m Equity 
 cannot obtain a charging order a. Law; but that the proper 
 course for him is to apply for it to a Court of Equity (J) 
 
 As to debts due to the Debtor, the nature and course of le 
 Creditor's remedy in such cases is so clearly pointed out m the 
 15 & 16 Vict. c. 76, ss. 60-66, amended by the 23 & 24 Vict, 
 c. 126, ss. 28-31, that it is sufficient to refer the reader to those 
 
 ^"■The Judgment Creditor will not, however, be allowed to pro- 
 ceed under the Garnishee Clauses, if a Receiver has been ap 
 pointed by the Court of Chancery of the debts sought to be 
 
 "'Iftlil Debtor has any chattels real which may be reached at Chauel. real. 
 Law, the Creditor may have execution against them, as in the 
 case of pure personalty, either by selling them under a/. /a., oi 
 
 (,) 4rchb. Pr. 633. M BrisUd .. Wilkius, 3 H.re, 233. 
 
 An (b) Post, p. 58. 
 
 [t Tri^l^c. no, s. H. (0 A^es . BirUen.eaa Dock Co.- 
 
 iz) Ibid. s. 14.
 
 50 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 extending them under an elegit. Nor is it obligatory on him to 
 resort first to the pure personalty. But if he extends them on an 
 elegit (d), no other writ can be afterwards issued, unless he be 
 evicted from them (e). 
 
 If the term be underlet at the date of the elegit, (i. e., if the 
 reversion only can be reached,) then the rent reserved (if any) 
 will be the property extended; for this, if in arrear, the Creditor 
 may give notice (f) to quit and distrain without attornment by 
 the tenant (g), but he cannot bring ejectment (h). 
 
 If not underleased, he may lease it, (subject to the determina- 
 tion by payment (i) of the tenancy by elegit itself:) and bring 
 ejectment, if rent become in arrear ; and have all the other 
 remedies of an ordinary landlord. 
 Realty. The Creditor may, instead of proceeding by aji.fa.,- or simul- 
 
 taneously with it (7^), sue out an elegit. Under this latter writ, 
 however, the personalty must be first taken, and only if that be 
 insufficient, the real estate (/). The delivery which the Sheriflf 
 gives of possession of the land is a legal and not an actual one 
 (that is, it confers a right of entry on the Creditor) (m). The 
 Creditor becomes thereupon legal owner, and acquires the legal 
 title (w) by force of the delivery alone, {i. e., by force of the 
 return of the inquisition;) and this, it is presumed, even though 
 the estate extended be a trust estate ; since the return of the 
 inquisition may, with no greater violence to the doctrine of 
 Assurances, divest the Trustee of the legal estate than the Debtor 
 himself, where he was legal owner. If the creditor can peace- 
 ably enter he may, and then commences his actual possession ; 
 if not (as if the Debtor will not allow him, or if, having at first 
 entered peaceably, he is afterwards forcibly evicted by him), he 
 may bring an action of ejectment (o). But after an elegit once 
 executed against the realty, Siji.fa. cannot be issued against the 
 personalty. Neither is the Sheriff warranted in seizing pro- 
 perty which is at the time in the possession of a Receiver of the 
 Court of Chancery (p). 
 
 {d) Archb. Pr. 553. {k) Archb. Pr. 552. 
 
 (c) Ibid. G34. (0 Ibid. 633. 
 
 (/) Bull V. Faulkner, 2 De G. & Sm. {m) Ibid. 635. 
 
 687. (n) Neate v. Duke of Marlborough, 
 
 (g) Lloyd V. Davies, 2 Exch. 103. 3 M. & Cr. 417. 
 
 (A) Woodfall on Landlord and To- (o) Ibid. 
 
 nant (7tb ed.), 747. {p) Russell v. East Anglian Railway 
 
 (i) Ibid. 34. Company, 3 M. & Cr. 304.
 
 LEGAL REMEDIES. 51 
 
 The duration of the Creditor's possession varies, of course, 
 according to the extent of the Debtor's interest : thus, if the 
 land be freehold or copyhold, in fee simple absolute, or over 
 which he has a sole power of appointment, the Creditor or his 
 representative may remain in till the debt is paid ; making, in 
 the case of copyholds, the proper payments to the lord, and 
 adding them to his debt (/). 
 
 Where the interest is an estate tail in possession in freehold 
 land, or (where there is a custom) in copyhold, the Creditor is 
 in, as in a fee simple absolute ; for the Debtoi-, having pov>er to 
 disentail the land, shall be deemed to have disentailed it, and 
 to have barred, as he might have done, the issue and remain- 
 dermen {g). 
 
 Where there is a protector of the estate tail, as the Debtor 
 could create a base fee without his consent, the Creditor shall be 
 in so long as there shall be issue of the Debtor (A). A base 
 fee is that estate in fee simple into which an estate tail is con- 
 verted, where the issues are barred, but not the remainder- 
 men (^). 
 
 Wliere the fee is a conditional one (as it is in the Debtor's 
 copyholds limited in tail, where there is no custom to entail), if 
 the condition is fulfilled, as by the Debtor having issue, the 
 Creditor is in till the debt is paid ; or if the Debtor never has 
 issue, or has, but they die during the tenancy by Elegit, then 
 till either he die or the debt is paid, whichever first happens {k). 
 
 If the land be freehold or copyhold, for a life or lives, the 
 Creditor is in till either the life or lives drop or the debt is paid. 
 
 An action upon the Judgment must be also ranked among Action on 
 the Creditor's legal remedies. In order to make a foreign J"^^"'^"*- 
 Judgment available here by action on it, the Creditor must sue 
 in a Westminster Common Law Court {I), proceeding de' novo, 
 as in an original suit. An action lies also on a Home Judgment 
 (strictly so called) of any Superior or Inferior Court of Record {in) 
 (e. g. from a Barmote Court, if the debt exceed 50/. in), where 
 part only of the money has been levied (o), or where the de- 
 fendant has escaped out of legal custody (p) ; and on a Colonial 
 Decree (^). But no action lies on a (New) County Court Judg- 
 
 (/) 1 & 2 Vict. c. 110, s. 11, sub fin. (7th ed.). 
 
 (g) Prid. Judg. m. (m) Ibid. 124. 
 
 (h) Ibid. 67. (n) 14 & 15 Vict. c. 94, s. 32. 
 
 (0 3 & 4 Will 4, c. 74, s. 1. (o) Tidd's Pr. 1019 (9th ed.). 
 
 (A-) 1 Cruise's Dig. p. 68. (;,) Archb. Pr. 648. 
 
 (l) Chitty on Pleading, vol. 1, p. 119 (q) 6 Q. B. 291. 
 
 E 2
 
 52 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Ca. sa. 
 
 Who exempt. 
 
 Fraud where 
 debt is under 
 201. 
 
 Generally. 
 
 ment ; nor on a Rule of any Common Law Court (r), for it is not 
 a Judgment for all purposes, and it seems doubtful whether it 
 will lie on a Decree or Order of the High Court of Chancery (s). 
 An action lies in the (New) County Court, however, on a Bar- 
 mote Judgment, where the debt does not exceed 50/. (t) : but not 
 on a Superior Court Judgment (u). 
 
 Besides the above-mentioned legal remedies against the pro- 
 perty, there is also a legal remedy against the person of the 
 Debtor, in general ; provided his land has not been extended 
 under an elegit {x). 
 
 Thus, if the Judgment or Rule be for 20Z. {y), the plaintiff 
 may sue (out of the Court wherein it was obtained) a capias ad 
 satisfaciendum (commonly called a ca. sa.), which commands the 
 Sheriff' to arrest and take the body of the defendant. 
 
 If the writ cannot be executed, or so long as it remains unex- 
 ecuted {i. e. so long as the defendant is not or cannot be taken 
 on it), the plaintiff" may sue out any other writ of execution, or, 
 abandoning the first ca. sa., may sue out an alias, or after that a 
 pluries ca. sa. (z). But, after it has once been executed, no Ji. fa. or 
 elegit can, in general, be issued ; and he has, therefore, no further 
 legal remedy on the Judgment (unless the defendant die in exe- 
 cution, or escape, or be rescued (a) ), except an action upon the 
 Judgment. So a ca. sa. may issue after a Ji. fa., if nothing, or 
 a part only, has been levied under the latter (b). 
 
 The Royal Family, Peers and Peeresses, Members of Par- 
 liament (during the time of their privilege, i. e. during the Session 
 and for forty days before and after it), and Members of Convo- 
 cation (during the same time) (c), executors for the debts of their 
 testators, and heirs for the debts of their ancestors, to which the 
 descended lands are liable (d), are not subject to arrest. 
 
 If the defendant was guilty of fraud in the matter of the debt, 
 then, though under 20/., he may be arrested (notwithstanding 
 that execution shall have issued against his goods), for such time 
 as he might have been, but for the 7 & 8 Vict, (which generally 
 abolished arrest for debts under 20/.), or for any period not ex- 
 ceeding six months, if the time during which he might have 
 
 73. 
 
 (r) Newton v. Boodle, 18 L. J., C. P., 
 3. 
 
 (s) 6 Q. B. 299. 
 (0 U & 15 Vict. C.91., s. 32. 
 (m) 19 & 20 Vict. c. 108, s. 27. 
 (,r) Archb. Pr. 634. 
 
 (y) 7 & 8 Vict c. 96, s. 57. 
 («) Archb. Pr. 649. 
 (rt) Ibid. 553 ; 21 Jac. 1, c. 24. 
 (6) Archb. Pr. 625. 
 
 (c) Ibid. 668—670. 
 
 (d) Ibid. 676.
 
 LEGAL REMEDIES. 53 
 
 been detained, before the Act, by the process of the Court, were 
 less than six months (e). 
 
 And so, although the debt be not for more than 20/., the J," County 
 
 p 1 T 1 1^- Courts and In- 
 
 (New) County Courts (f) and (in the case of the London Dis- solvency cases. 
 
 trict) the Insolvent De^btors Court in London (g), on a summons 
 
 by a Creditor by Judgment of any competent Court, possess a 
 
 similar power to commit the Debtor to prison for forty days ; 
 
 but only if the Debtor obtained credit from the plaintiff by fraud, 
 
 or conveyed any property in order to defraud his Creditor, 
 
 or has had sufficient means to pay, but has not paid (h). 
 
 The summons may be granted by the Court of the District 
 within which the Judgment Debtor dwells or carries on his 
 business (i), or by a Judge of the Court in which the Judgment 
 was obtained (k). 
 
 Any touching of the person constitutes an arrest, and the 
 officer may carry him at once to the County gaol (Z). 
 
 The body of the Debtor may be also arrested on an attach- Attachment. 
 me7it, if he has been ordered by a Westminster Hule absolutely 
 to pay money or costs, and does not pay it when demanded (m). 
 
 It is, in general, however, preferable to proceed by ca. sa. 
 rather than by attachment {n). 
 
 Proceedings against the Sheriff, if he neglect his duty, also Proceedings 
 constitute some of the Creditor's legal remedies. Thus, if the ''^^'"^' ^^'^"^' 
 Debtor escape out of legal custody, and the Creditor suffer 
 some damage thereby, he may have an action on the case for 
 damages against the Sheriff, Bailiff, or other person charged 
 with the custody of the Debtor (o). The true measure of such For escape, 
 damages is the value of the custody of the Debtor at the time of 
 the escape (p). 
 
 If the Sheriff make a false return, as if he wrongly return non For false re- 
 est inventus on a ca. sa,, or nulla bona on a.Ji.fa., the Creditor 
 may maintain an action against him {q). 
 
 So he may proceed against the Sheriff or his executors, for For money 
 the amount of money levied under aji.fa., and not made over to 
 him. Such proceeding may be by Rule of Court, if the fi.fa. 
 
 (e) 7 & 8 Vict. c. 96, s. 59. {I) Archb. Pr. 643, 644. 
 
 (/) 9 & 10 Vict. c. 95, s. 98. (m) Ibid. 1606. 
 
 (g) 8 &; 9 Vict. c. 127, s. 1 ; and 10 («) Ibid. n. (6). 
 
 & 11 Vict. c. 102, s. 4. (o) 5 & 6 Vict. c. 98, s. 31. 
 
 {h) 22 & 23 Vict. c. 57. (p) Archb. Pr. 648. 
 
 (J) 9 & 10 Vict. c. 95, s. 98. (q) Ibid. 578. 
 (A:) 19 & 20 Vict. c. 108, s. 48. 
 
 turn. 
 
 levied.
 
 54 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 For treble 
 damages. 
 
 Outlawry. 
 
 Civil. 
 
 Criminal. 
 
 Forfeiture. 
 
 has been returned; by action of assumpsit, debt, or account, 
 if it has not ; the levying of the money creating a contract in 
 Law (z"). 
 
 Such actions, for escape or money levied, must be brought 
 within six years of the cause of them is). 
 
 If the Sheriff retains money to cover illegal charges in exe- 
 cuting the writ, the Creditor may sue him for treble damages (t). 
 Outlawry, though much less resorted to since the greater 
 efficiency now given to writs of execution, must be briefly men- 
 tioned among the legal remedies of a Judgment Creditor. 
 Outlawry is either civil or criminal. 
 
 (i.) Civil — where the Debtor absconds after final Judgment, 
 and has been proclaimed an outlaw on an exigi facias 
 executed at five successive County Courts. This writ 
 may be sued out on a return of non est inventus to a 
 ca. sa. directed to the Sheriff of the County where the 
 venue in the action is laid {u). 
 The exigi facias commands the Sheriff to cause the de- 
 fendant to be demanded from County Court to County Court, or 
 if the writ be to the Sheriff in London, from "busting to 
 busting," until he be outlawed, if he do not appear ; and if he do 
 appear, then to take him {x). 
 
 It is presumed the County Court here meant is the old 
 County Court, whose jurisdiction still exists (y), and not the 
 new County Court. 
 
 (ii.) Criminal — where, on an indictment against him, whe- 
 ther for felony, or a crime less than felony, he cannot 
 be found, capiases have been issued against him in 
 vain, he has been required to surrender at five County 
 Courts, and is thereupon adjudged an outlaw (z). 
 On civil outlawry, — with which alone we are here concerned, — 
 all the outlaw's personalty, in possession, vests in the Crown 
 immediately [a) : his chattels real, legal or equitable, and profits 
 of his land, on office found {b). But his copyholds and free- 
 holds, and money due to him on mortgage, or other debts, and 
 
 (r) Ibid. 625. 
 
 (s) 3 & 4 Will. 4, c. 42, s. 3. 
 (0 28 Eliz. c. 4. 
 (u) Archb. Pr. 1228. 
 (.r) For the form of the writ, see 
 Chitty's Forms, 720. 
 
 (y) See Appendix, Table of Courts, 
 (z) 4 Steph. Blackst. 449, 450. 
 (n) Archb. Pr. 1227 ; Com. Dig. 
 Utlagary," D. (5). 
 (b) Ibid.
 
 LEGAL REMEDIES. •^'^ 
 
 the equity of redemption of a term, are not (c) forfcitahle. On 
 civil outlawry, a general or special capias utlagatum issues id) ; Capias utla- 
 the former is against the person only, and is executed as a com- 
 mon ca. sa. ; the latter against the person, goods and lands, and 
 it directs the Sheriff to take them into the Queen's hands. By a 
 venditioni exponas out of the Exchequer, the Creditor may then 
 sell the goods, and by a levari facias levy the profits of the 
 freeholds, which are bound from the date of that writ {e), and 
 by scire facias recover the debts due to the outlaw {f). It may 
 be observed, that this is the only occasion on which the disused 
 writ of levari facias seems in modern times resorted to. 
 
 If the Judgment debt does not exceed 50Z., a Court of Equity 
 will, on motion, order its payment : if it does, the Creditor may 
 petition the Lords of the Treasury for payment out of the 
 outlaw's personalty ; or, if that be insufficient, he may petition 
 them for a lease of the land from the Queen to the peti- 
 tioner (g). 
 
 A Judgment Creditor, seeking to set aside in Equity a fraudu- 
 lent settlement by his Debtor, whom he has made an outlaw, 
 need not clothe himself with the legal title by a grant from the 
 Crown, inasmuch as his claim is paramount to the settlement, 
 which as between the settlor and Crown was good {h). 
 
 As to the legal remedies of a Creditor by Palatine Judgment Palatine Judg- 
 strictly so called, or Rule, see Table of Courts, Appendix. 
 
 Among the Creditor's legal remedies must be included the Equitable and 
 equitable writs of fi. fa., venditioni exponas and elegit, wh]c\\, gxecu't^ons.^ 
 though issuable out of Equity, and that only on Decrees or 
 Orders for the payment of money, and, therefore, in some sort, 
 equitable remedies (i), are yet enfoi-ceable at law as legal ex- 
 ecutions are, being directed to the Sheriff', and executed by him, 
 and that against the same species of property as are liable to 
 legal execution {k). 
 
 The Court of Bankruptcy has also power (which has been 
 extended to the Court of the Lord Chancellor, and to the Court 
 of Appeal in Chancery sitting in Bankruptcy) to issue, and has 
 issued, writs of ca. sa , fi, fa. venditioni exponas and elegit, en- 
 
 (c) Com. Dig. Utlagary, D. (3). (h) Goldsmith «. Russell, 5 DeG., M. 
 
 (d) Archb. Pr. 1230. & G. -555. 
 
 (e) Lewin on Trusts, 3rd ed., p. 646, (i) Post, sect. 8. 
 
 n. 1. {/:) 1 & 2 Vict. c. 110, s. 20; 29th 
 
 (/) Archb. Pr. 1231. Consol. Ord. r. 6, 8, 9. 
 
 (g) Ibid. 1232. 
 
 E 4
 
 56 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 forceable in the same manner, and against the same species of 
 property, as legal executions (Z). 
 
 But the Court of the Lord Chancellor, and the Court of 
 Appeal in Chancery sitting in Lunacy, has no power to issue 
 such writs to enforce their Decrees or Orders. 
 
 Section 8. 
 Equitable Remedies. 
 
 Creditor hi/ JVestminster Judgment or 
 its Equivalents. 
 ( 1 .) Personalty in Possession. 
 (2.) Choses in Action. 
 
 Equitable Execution. 
 Bill of Discovery. 
 Receiver. 
 (3.) Remedies against Realty and Chat- 
 tels Real. 
 
 Under Old Jurisdiction. 
 Under New Jurisdiction. 
 Parties. 
 
 (4.) Remedies against Person. 
 Attachment. 
 Sequestration, 
 Serjeant at Arms. 
 
 Creditor by Palatine Judgment and its 
 Equivalents. 
 
 Creditor by Decree of Inferior Courts of 
 Equity. 
 
 Creditor by 
 Westminster 
 Judgment or 
 its eq^uivalent. 
 
 Old Jurisdic- 
 tion. 
 
 Personalty in 
 possession. 
 
 It is presumed, though there seems an absence of authority 
 on the subject, that not only a Creditor by Common Law Judg- 
 ment or Rule, but also one by Decree or Order of the High 
 Court of Chancery, is entitled to his full equitable remedies 
 against the Debtor's lands, as he is undoubtedly to his remedy 
 by charging order against personalty within s. 14 of 1 & 2 
 Vict. c. 110, and s. 1 of 3 & 4 Vict. c. 82, and by equitable 
 Ji.fa. or elegit. 
 
 A Judgment Creditor's equitable remedies, then, including 
 Creditors by such Decrees or Orders, divide themselves under 
 two heads : namely;^ first, those which he derives from I & 2 
 Vict. c. 110, and the subsequent Statutes and General Orders 
 in Chancery ; secondly, those which he had, and still has, in- 
 dependently of those Statutes and Orders, under the old equit- 
 able Jurisdiction, which, however, was itself originally derived 
 from Statute (viz. 13 Edw. L) (m). 
 
 And here of those which he had, and has, against the Debtor's 
 personalty. 
 
 I. Personalty in possession. 
 
 It is under the old Jurisdiction, and under it alone, that he 
 must still proceed (and he may proceed within a year from the 
 
 (/) For forms of the writs, sec Wise's 
 Bank. Consol. Act. 
 
 (w) Neate v. Duke of Marlborough, 
 3M.&Cr. 417.
 
 57 
 
 EQUITAULE REMEDIES. 
 
 date of his .Tuclsmcnt(«)), if he wishes to make avail.l.lo in 
 Fnuitv such na,-r of his Debtor's personalty zn possession as he 
 J.quity sucn la having, as it 
 
 cannot reach at law, the 1 & ~ Vict. c. lu/ ..^m-aies 
 
 woukl appear, extended a Judgment Creditors f"™- ™^^^;_ 
 in Equity against snch property. For it tnay be lad down ge e 
 ally that all personalty which there is an impediment in the 
 way o his reaching at Law, he may reach in Equity, provM 
 U i's aat species of%roperty against which legal process wouU 
 issue if the Debtor were the legal owner. " The pi ov ince ot 
 the Court of Chancery being to aid, not to supply or extend. 
 
 no.t:i'::o:if *e personalty be such, or so circ— ^^^^^^ 
 as that execution would issue for it, a suit by the Credito m 
 Equity would, it is presumed, be demurrable on te ground to 
 the same relief, viz., s.,le under a/. /a., might be had a Law. 
 At reveiits. ie Creditor, having a sufficient remedy at Law. 
 would have no cause to come into Equity. 
 
 The Creditor, however, must, before coming into Equity have ^^^^^^^^ 
 
 proceeded at L w as far as he can : thus, he must have first sued ;,,„,,. 
 
 Tut aT/"- ■•'n'l g°' i' returned (p). or have at le.sisued out an 
 
 '' lll^may proceed by bill, and will, supposing the personalty 
 to be TuiLumbered, pray an account of his debt (not of all 
 debtrno. even of alf other Judgment Debts.) sale, and pay- 
 
 ™He will have similar relief against a mortgaged chattel (r). 
 
 New Jurisdic- 
 
 II. Personalty in action. tion. 
 
 This is only liable in Equity under 1 & 2 Vict., and the sub- 
 1 his IS oniy iidui 1 ■' Neither choses in action, Choses m 
 
 sequent Statutes and General Oideis. Weitnei c/« ^^^.^^^ 
 
 nor a trust in them (.), could be reached m Equity pr oi to Uiose 
 IctsCO. And the remedy so extended is of the following de- 
 
 "Itt'been determinedthat if the Creditor be one by a Com- 
 „.on Law Judgment (strictly so called) or Common Law Rule, 
 the charging order obtainable under s. 14 of 1 & 2 \ ict. c. 110, 
 
 TT ^ 1 r„ii 70'; («) 3 M.& Cr. 415. 
 
 cited. 
 
 198. 
 
 e5
 
 58 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 or 3 & 4 Vict. c. 32, s. 1, must be obtained from a Common 
 Auxiliary stop Law Judge (x) ; though the Court of Chancery will grant the 
 Creditor a stop order, if the fund charged be in Court, as auxiliary 
 to the charging order (y), but will not order the fund to be paid 
 out of Court without the Debtor's consent (s). 
 
 The Court will also grant the Judgment Creditor a stop order, 
 staying the delivery to the Debtor of the Accountant-General's 
 cheques for sums ordered to be paid to him, — the Sheriff having 
 sought to seize them by virtue of a fl. fa. at the instance of the 
 Judgment Creditor under s. 12 of 1 & 2 Vict. c. 110, (a), — such 
 cheques not being property which the Sheriff is entitled to 
 seize (b). 
 
 But it has also been decided that the Equity Judges may 
 make those orders when the Creditor is a Creditor by Decree or 
 Order in Equity (c). And the cases which at first sight appear 
 conflicting, may be thus reconciled, though Mr. Headlam thinks 
 them at variance with each other (d). 
 Equitable Bearing, then, the above distinction in mind, the Creditor may, 
 
 ° * on petition and ex parte, obtain an order in Equity charging the 
 
 Debtor's government stock and shares in public companies, and 
 the dividends, interest and annual produce thereof, with the 
 amount of the Judgment debt. And he may, notwithstanding 
 the provision (e) that he may take no proceeding to have the 
 benefit of the charge till six months from the Order, obtain a 
 stop order restraining the Debtor from receiving interim accruing 
 dividends (/) ; and may also, perhaps in a proper case, institute 
 a suit within the six months to protect his interests {g). The 
 true construction of sect. 14 is, that, although no steps can be 
 taken to enforce immediate payment of the debt by realizing the 
 security, yet that the Judgment Creditor may in the meantime, 
 by force of the order, prevent the security given him being 
 defeated or diminished pro tanto by stopping payment to the 
 Debtor of part of his security (/*). 
 
 (t) Miles «. Presland, 4 M.& Cr. 431. (rf) Dan. Ch. Pr. (Headlam), 3rd ed. 
 
 (y) Hulkesj;. Day, 10 Sim. 41 ; Wells 1277. 
 
 V. Gibbs, 22 Beav. 204. (e) 1 & 2 Vict, c 110, s. 14. 
 
 {z) Wbitfield i;. Prickett, 13 Sim. (/) Watts v. Jeffreyes, 3 M'N. & G. 
 
 289. 374. 
 
 (a) Robinson d. Wood, 5 Beav. 388. {g) Bristed v. Wilkins, 3 Hare, 325 ; 
 
 (6) Courtoy V. Vincent, 15 Beav. 486; Reece v. Taylor, 5 De G. & Sm. 480. 
 
 3 M'N. & G. 422. {h) Watts v. Jeffreyes, 3 M'N. & G. 
 
 (c) Stanley v. Bond, 7 Beav. 386; 372. 
 Westby v. Westby, 5 De G. & Sm. 516.
 
 EQUITABLE REMEDIES. 59 
 
 The order is, in the first instance, an order JVisi {i), and When its 
 prevents any new charge being effected between that time and ^^^^^ ^^^^ 
 the time of its being made absolute. But the real charging 
 effect of the order dates from the time of its being made abso- 
 lute {k), and thereupon it entitles him to all such remedies as 
 he would have had if the charge had been made in his favour by 
 the Judgment Debtor (l). If tlie charge had been made by 
 the Debtor, the Creditor would have become a mortgagee of 
 such stock or other chose in action, and his remedies are, 
 therefore, those of an equitable mortgagee of stock — viz. fore- 
 closure {m). 
 
 The benefit of even a Common Law charging order is realized, Legal charging 
 as has been said, in Equity, and that by a Decree or Order °^ ^^' 
 obtained either on a bill or claim to enforce the Judgment or 
 Rule (n). 
 
 Where the fund sought to be charged is standing in the name 
 of the Accountant-General, the practice of the Office is to enter 
 a memorandum of every charging order left ; but such notice is 
 not any restraint, or equivalent to a stop order (o). 
 
 The costs of the charging order are to be borne by the 
 Debtor {jj). 
 
 Where the Judgment Creditor seeks to set aside a fraudulent 
 conveyance of stock standing in the names of trustees, he need 
 not have first obtained an order charging such stock (q). 
 
 Amongst the Creditor's equitable remedies must be mentioned Equitable exe- 
 those equitable writs of /z. fa., venditioni exponas and elegit, '^"''""®- 
 issuable out of Chancery for the payment of any money or costs, 
 the payment whereof has been ordered or decreed by the Court, 
 to which we have before referred (r). 
 
 A bill for discovery of goods in aid of a Ji. fa. or elegit, or of Discovery, 
 lands in aid of an elegit, is also an equitable remedy of the 
 Creditor (s), but this is scarcely useful, since the discovery may 
 now be obtained at Law, at least so far as it can be obtained 
 from documents in the possession of the party from wliom it is 
 sought (0, and since a bond fide purchaser of goods without 
 
 (0 22 Beav. 204. {p) Stanley v. Bond, 8 Beav. 51. 
 
 {!() Warburton v. Hill, Kay, 470. . {q) Goldsmith v. Russell, 5 De G., 
 
 {I) 1 & 2 Vict. c. 110, s. 14. M, & G. 547. 
 
 (m) See post, "Mortgages of Per- (r) Ante, p. 55. 
 
 sonalty." {s) See Mr. Jacob's opinion, quoted 
 
 (n) Reece v. Taylor, 5 De G. & Sni. in note to Smith v. Hurst, 10 Hare, 49. 
 
 480. (0 C. L. P. Act, 1854, s. 50. 
 
 (o) Ibid.
 
 60 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 notice, between the time of the Judgment and seizure by the 
 Sheriff, is safe (u). 
 Receiver. The Creditor may apply for, any time (after filing his Bill or 
 
 Claim) on motion with notice, and obtain, a Receiver to collect 
 and get in or protect the personalty, and that within a year after 
 the Judgment {z). But he must lay special grounds for the 
 application ; such as " probable danger to the property" (y). 
 
 " A Judgment Creditor, who is precluded by circumstances 
 from prosecuting his Judgment to execution at Law, has a right 
 to the protection of the Court of Chancery as to the property 
 upon which the Judgment would operate, by the appointment 
 of a Receiver of the proceeds of such property " (z). 
 
 Realty and 
 chattels real. 
 
 Old Jurisdic- 
 tion. 
 
 Ground of 
 
 Legal execu- 
 tion must 
 issue. 
 
 The twofold division noticed above is applicable to the Cre- 
 ditor's remedies against his Debtor's realty and chattels real. 
 
 I. Under the old Jurisdiction. 
 
 This Jurisdiction still remains, as in the case of personalty ; 
 and as it is under it that the Creditor must proceed against the 
 land, if he proceeds within a year of the Judgment, it is still ne- 
 cessary to consider it, though only briefly, since his remedies 
 under 1 &; 2 Vict, are so much ampler, that he will generally 
 prefer waiting for them till the end of the year. 
 
 Independently of 1 & 2 Vict., the Judgment was not properly 
 a security upon land (a), and a decree operated only against the 
 person (b). 
 
 The ground for the old Jurisdiction was principally this, the 
 existence at Law of some impediment, preventing the Creditor 
 from taking the lands in execution there (c), as that the nature of 
 the Debtor's interest was one on which a legal execution would 
 not operate, or, if the Debtor were dead, that it was " mercy to 
 his representatives to relieve his estate from the ruinous expense 
 of a suit at Law" (d). 
 
 The Creditor must have sued out an elegit at Law (though he 
 need not have it returned) (e), and have sued out, and had re- 
 turned difi.fa., if proceeding against chattels real, before Equity 
 will help him, at least during the life of the Debtor. 
 
 (tt) 19 & 20 Vict. c. 97, s. 1. 
 (j;) Smith v. Hurst, 1 Coll. 705. 
 (y) Roberts's Principles of Equity, 
 221. 
 
 (z) Bennett on Receivers, 59. 
 (a) Bondi;. Bell, 6 W. R. IGl. 
 {b) 6 De G., M. & G. 155. 
 
 (c) Neate v. Duke of Marlborough, 3 
 M. & Cr.417. 
 
 {d) Barnewall v. Barnewall, 3 Ridg. 
 P. C. 61. 
 
 (e) Dillon v. Plaskett, 2 Bligh, N. R. 
 241.
 
 EQUITABLE REMEDIES. 61 
 
 But if he be dead (/), or the Creditor seeks to redeem a mort- 
 gage of a freehold interest in fee, or for years {g), he need not : 
 secus, if the mortgage be of a leasehold (Ji). 
 
 "The Jurisdiction is not for the purpose of giving effect to a 
 lien which is supposed to be created by the Judgment, but is 
 grounded simply on this, that, inasmuch as the Court finds the 
 Creditor in a condition" {i.e., supposing the interest were ex- 
 tendible) " to acquire a power over the estate by suing out the 
 writ, it does what is done in all similar cases, it gives to the party 
 the right to come in, and redeem other incumbrances upon the 
 property" (i). 
 
 Generally speaking, the Creditor proceeding under the old No sale gene- 
 Jurisdiction has not a right to sell the realty {m) ; an exception, ^^ ^' 
 however, has been made where the Debtor is dead {n). 
 
 Although, previously to 1 & 2 Vict., the Creditor was entitled 
 to legal execution only of a moiety, yet, if obliged in Equity to 
 redeem (as he would have been) tlie whole, if any, he might (the 
 Debtor being dead) have had the whole sold (o) ; and so, there- 
 fore, where, since the 1 & 2 Vict., the Creditor redeems under 
 the old Jurisdiction. 
 
 Being entitled to redeem, he may also, where the land is in 
 mortgage, pray and have foreclosure against the Debtor : and 
 may, showing similar special grounds as in the case of per- 
 sonalty, e.g., that the fund is perishable, or in its nature but a 
 life interest, have a Receiver (;?), without prejudice to the pos- Receiver, 
 session of any legal mortgagee, and may have a bill for discovery Discovery, 
 in aid of his elegit. 
 
 If he filed his bill or claim within the year, and continued it 
 by supplemental bill after the year, he was held entitled to the 
 enlarged remedies aflforded by the 1 & 2 Vict. c. 110, if the sup- 
 plemental bill asked for them {q). 
 
 II. Under the 1 & 2 Vict. c. 110. New Jmisaio- 
 
 This remedy, as has been said, must not be put in force within ^'°"* 
 a year from the entry of the Judgment, or drawing up of the 
 Rule, or pronouncing of the Decree or Order, and may be ob- 
 tained by [.ill. 
 
 (/) Pritl. Judg. 32. («) Barnewall v. Barnewall, 3 Ridg. 
 
 {g) 2 Spence, Eq. Jur. GG2. P. C. 24. 
 
 (/«) Ibid. 661. (o) Stonehevver v. Thompson, 2 Atk. 
 
 (j) Neate v. Duke of Marlborough, 3 440; Tunstall v. Trappes, 5 Sim. 300. 
 M. & Cr. 416. (p) 1 Hog. 329. 
 
 (m) Prid. Judg. 29. [q) Smith v. Hurst, 10 Hare, 49. 
 
 e7
 
 62 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Charging per- 
 son in execu- 
 tion. 
 
 The relief. 
 
 Wilful default. 
 Legal execu- 
 tion need not 
 issue. 
 
 But a tenant by elegit may file a bill to redeem a mortgage 
 within the year (?•), and may within the year obtain an injunction 
 against the trustees of a Judgment Debtor and tenant for life (s). 
 
 It will be no objection to the equitable remedy that the land 
 is extendible, or has been extended (provided the debt has not 
 been discharged), for that is a less advantageous remedy. Nor 
 need the Creditor aver that he has first proceeded, either at Law 
 or in Equity, against the personalty, and found it insufficient. 
 He may go at once against the land ; for it stands charged by 
 force of the Judgment itself, independently of the intention of 
 the parties so to charge it {t). 
 
 But he is not a purchaser within 27 Eliz. c. 4 (u). 
 
 It has been decided that neither the taking of the Debtor's 
 person by writ of attachment (.r), nor his arrest on mesne process 
 in Jersey (?/), is such a taking of him in execution within s. 16 
 of I 8c 2 Vict. c. 110, as to bar the Creditor of his benefit of his 
 charge under section 13. 
 
 The bill will pray a declaration that the Judgment is a charge, 
 and an account of the Judgment debt ; and a Receiver may be 
 obtained as under the old Jurisdiction, and under the same 
 circumstances. The authorities have been conflicting, and still 
 leave it uncertain, whether the Judgment Creditor's proper relief 
 is Foreclosure or Sale. In some cases he has been held entitled 
 to the former (z); in others, to a sale (a). 
 
 But it would seem, if the suit be framed as a foreclosure suit, 
 the Court may order a sale at its discretion, if the provisions of 
 15 & 16 Vict, are complied with. In Jones v. Bailey {h) the 
 Master of the Rolls, when pressed to order a sale under that 
 Act, put his refusal on the absence of the defendant, the 
 Debtor. 
 
 If he has been in possession under an elegit, he will be 
 charged in Equity with wilful default. He need not have sued 
 
 (r) Barnes v. Thrupp, 3 Jur., N. S. 
 1242. 
 
 {s) Yescombe v. Lander, 7 W. R. 
 534. 
 
 (0 Bondt). Bell, 6 W. R. 164. 
 
 (u) Beavan v. Lord Oxford, 4 W. R. 
 275. 
 
 {x) Roberts v. Ball, 3 W. R. 406. 
 
 {y) Houlditch V. Collins, 5 Beav. 497. 
 
 (a) Ford v. Wastell, 6 Hare, 229 ; 
 
 Jones V. Bailey, 17 Bcav. 582 (where 
 see the cases collected in the note) ; 
 Cox V. Toole, 20 Beav. 145 ; Messer v. 
 Boyle, 21 Beav. 559. 
 
 (a) Carlon v. Farlar, 8 Beav. 525; 
 Footner v. Sturgis, 5 DeG. & Sm. 737; 
 quare, whether he would be entitled to 
 an immediate sale, 8 Beav. 525 ; Smith 
 i;. Hurst, 10 Hare, 50. 
 
 (b) 17 Beav. 582. .
 
 63 
 
 EQUITABLE REMEDIES. *^ 
 
 out an elegit against the realty or chattels real, or a/, fa. against 
 the chattels real, before coming into Equity (c). 
 
 An important consideration for the Creditor in pursumg his 
 remedies in Equity, which does not embarrass him at Law, 
 where his remedy is not by suit at all, but by Execution, is that 
 of Parties. And this question may arise, whether he proceed Part.es. 
 a<rainst his Debtor's real or personal estate; but as the cases are 
 rare, comparatively, in which he proceeds in Equity against the 
 latter, this subject will best be considered in connection with 
 his Remedies against Realty. 
 
 The best general rule, perhaps, that can be laid down on this General rule, 
 part of the subject appears to be this, that all those, whose rights 
 he is compelled to take subject to, and yet is desirous of clearing 
 the estate from on the one hand, and on the other, all those whose 
 estate he "is entitled to take paramount to, (first offering them to 
 redeem him,) but requires a judicial sentence to establish his 
 priority over, are necessary parties. This rule is, of course, 
 subject to that which, either as regards real or personal estate 
 vested in trustees, dispenses with the necessity of making the 
 persons beneficially interested parties {d) ; it being sufficient to 
 make such trustees parties. But trustees under a Creditor's 
 composition deed do not, under the Act last referred to, repre- 
 sent Judgment Creditors of the Debtor who have not executed 
 the deed ; and who will not, unless made parties, be bound by 
 a decree for sale obtained by a mortgagee of the Debtor {e). 
 
 Thus, if he seeks to realize his debt in Equity out of property 
 conveyed by an assurance, fraudulent as against him under 13 
 Eliz. c. 5, he must make the claimants under such conveyance 
 parties in order to set it aside eifectually, though he might extend 
 it at liaw, disregarding altogether the fraudulent alienation (/). 
 Or, if he must take subject to a prior mortgage, or to a subse- P^r^;^Mort- 
 quent one without notice, and offers, as he has a right to do, to 
 redeem it, he must make the mortgagee a party. 
 
 But if the Judgment Creditor does not redeem— as he need 
 not-the prior mortgagee, but is content to take the property 
 subject to the incumbrance, he need not make such mortgagee 
 a party {g). If, however, he seeks an account against such prior 
 mortgagee, he must oflTer to redeem him and make him a party (^). 
 
 (c) Prid. Judg. 185, note; Lewin on (/) Ante, p. 30. 
 Trusts, 662, n. (6). {§) Carlon .. Farlar, 8 Beav. 526. 
 
 {d) 15 & 16 Vict. c. 86, s. 42, r. 9. (A) Fell v. Brown, 2 B. C. C. 276. 
 
 (e) Knight v. Pocock, 21' Beav. 436. 
 
 E 8
 
 64 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Subsequent 
 
 Judgment 
 
 Creditors. 
 
 Tenant in tail 
 debtor. 
 
 For life. 
 
 Bankrupt 
 Debtor. 
 
 Process of 
 Contempt. 
 
 Attachment. 
 
 Sequestration. 
 
 On the same principle, subsequent Judgment Creditors (i. e., 
 subsequent not in time only but in preference) are necessary 
 parties to his suit, because they have a right to redeem him. 
 The only exception is where they are inconveniently numerous, 
 or where they are Judgment Creditors by confession pendente 
 liteii). 
 
 Judgment Creditors of a tenant in tail are not necessary par- 
 ties to a bill for specific performance by a covenantee of the 
 Debtor (A). 
 
 It seems undecided whether Judgment Creditors of a tenant 
 for life are necessary parties to a sale by trustees, having a power 
 of sale with the concurrence of the tenant for life (/). 
 
 A Judgment Creditor is rightly made a defendant to a fore- 
 closure suit by mortgagees after the bankruptcy of the Judg- 
 ment Debtor, although the Judgment is not a year old at the 
 time of the bankruptcy, and therefore the Creditor has no pre- 
 ference (m). 
 
 The Judgment Debtor is, of course, in all cases a necessary 
 party, unless he is bankrupt or insolvent. 
 
 Besides the remedies we have been hitherto considering, the 
 Judgment Creditor has a remedy in Equity against the person 
 by the old process of contempt. But this remedy is confined to 
 Creditors by Decree or Order, and does not extend to those by 
 Judgment, strictly so called, or Common Law Rule. It is given 
 equally to Creditors by Decree or Order, whether for the pay- 
 ment of money or for the performance of other things. But the 
 rank of Judgment Creditor is, as we have seen, given only to the 
 former of these two classes. 
 
 If the defendant be not a Member of Parliament or a corpo- 
 ration aggregate, the plaintiff may sue out a writ of attachment, 
 by which the Sheriff is directed to attach {i. e. take and keep) 
 his person, and present him to the Court at a time assigned ; 
 and, if taken or detained upon the attachment, the plaintiff may 
 then sue out a Commission of Sequestration, whereby the Sheriff 
 or the plaintiff's nominees are empowered to enter and sequester 
 the I'calty and personalty of the defendant, and receive the rents 
 and profits, and keep or pay them as the Court directs (n). 
 
 If a non est inventus be returned to the attachment, the plaintiff 
 
 (j) Adams w. Paynter, 1 Coll. 532. 
 (/f) Peter t). Buncombe, 7 Hare, 28. 
 (/) Lord Leigh v. Lord Ashburton, 
 11 Bcav. 470. 
 
 {m) Harrison v. Pennell, 6 W. 11. 712. 
 («) 29th Consol. Ord. r. 3.
 
 EQUITACI-R REMEDIES. 65 
 
 may proceed immediately to a Commission of Sequestration in 
 the first instance, or to a Serjeant-at-arms, and to such other pro- Serjeantat- 
 cess, i. e. sequestration (p), as he has hitherto been entitled to ^'■'"^• 
 on a return of non est inventus on a Commission of Rebellion {q). 
 
 If the defendant be a Member of Parliament, the sequestra- Privilege, 
 tion will issue in the first instance, without an attachment. 
 
 If the debt be due from a corporation aggregate, a distringas Corporation, 
 will issue in the first instance, with an alius and pluries dis- 
 tringas, and then a Serjeant-at-arms. 
 
 Unremoved Palatine Judgments Rules Decrees and Orders Palatine Judg- 
 are, as has been observed, available against the Debtor's realty {i|e"r gquiva- 
 and chattels real within the respective Palatinates. And the lents. 
 mode of enforcing such redress in the Palatine Chanceries will 
 be the same as that of enforcing the Creditor's remedies in the 
 High Court of Chancery. 
 
 With regard to the personalty of the Debtor within its 
 Jurisdiction, the Lancaster Chancery would appear to have the 
 same power of enforcing the remedies of a Creditor by a Lan- 
 caster Judgment, or Rule, Decree or Order, and against the 
 same species of personalty, as the High Court has in the case of 
 a Creditor by Westminster Judgment or Rule, or Decree or Order 
 of the High Court; and the same twofold division of Jurisdic- 
 tions would seem to apply (r). The Durham Chancery would 
 seem capable of affording the same remedies to a Creditor by 
 Durham Judgment, Rule, Decree or Order, against personalty 
 in possession within the jurisdiction, and for the same reason (s) 
 as the High Court is. 
 
 Both Palatine Equity Courts have also power to issue equit- Palatine equit- 
 able writs of execution effectual within their Jurisdictions as the tions^^^'^" 
 High Court has (/); but this power is limited in the case of the 
 Durham Chancery to writs of elegit, and to them only as against 
 lands (u). 
 
 The Orders of the High Court, doing away with the writs of 
 attachment with proclamations, and of rebellion, have not been 
 adopted by the Palatine Courts, at least not by the Chancery of 
 Lancashire (i«) ; but where non est inventus is returned to an 
 attachment, the Court retains the power of proceeding according 
 to the old practice, or at once issuing a sequestration. 
 
 (p) Ayck. Cli. Pr. 50. Vict. c. 43, ss. 1, 2, 24. 
 
 (9) 29th Consol. Ord. r. 3. («) 18 & 19 Vict. c. 15, s. 2. 
 
 (r) Ante, pp. 41, 56. (w) Winstanlcy on the Chancery of 
 
 (s) Ante, p. 41. Lancashire, p. 22. 
 
 (0 18 & 19 Vict c. 15, s. 2 ; 13 & 14
 
 66 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Inferior Courts 
 of Equity. 
 
 Inferior Courts of Equity would appear not to be within 
 section 20 of 1 & 2 Vict. c. 110 (a;) ; any power that they have, 
 therefore, to issue equitable writs is under their own special 
 Acts. Thus, the power given to the Stannary Courts to issue 
 equitable writs of fi. fa. or capius is given by the Stannary 
 Court Act (?/). For the mode of enforcing their Decrees or 
 Orders, and the Decrees and Orders of the other (^ Inferior) 
 Courts of Equity, see Table of Courts, Appendix. 
 
 Section 9. 
 Priorities. 
 
 Personalty in 
 possession. 
 
 Judgment 
 Creditor 
 
 V. 
 
 Assignee. 
 
 Personalty in Possession. 
 
 Judgment Creditor v. Assignee. 
 Judgments inter se. 
 Choses in Action. 
 
 V. Prior Assignee. 
 V. Subsequent Equitable Mortgagee. 
 Realty and Chattels Real. 
 At Laiu. 
 In Equity. 
 
 V. Subsequent Mortgagee or Pur- 
 chaser. 
 V. Prior Voluntary Alienee. 
 
 V. Prior Contractee for Value. 
 V. Prior Legal Mortgagee. 
 V. Prior Equitable Mortgagee. 
 V. Subsequent Equitable Mort- 
 gagee. 
 V. Creditors under Trust Deed. 
 V. Landlord. 
 V. Prior Judgment. 
 Unregistered Judgment v. Purchaser 
 with Notice. 
 Tacking of Judgments. 
 Contribution. 
 
 We must now consider the more complicated cases, in which the 
 rights of Judgment Creditors, whether at Law or in Equity, and 
 whether as regards the real or personal estate of their Debtor, 
 come into collision with those of his other Creditors, or with those 
 of each other, or with those of his purchasers or mortgagees. 
 
 1 . As regards his personalty. And here of personalty in pos- 
 session. Little difficulty would occur in ascertaining a Judgment 
 Creditor's rights at Law to the personal chattels of his Debtor, 
 if the latter did not frequently, as he legally may, if without fraud, 
 deal with them between Judgment and execution, or even after 
 execution ; when he does, questions arise between the Judgment 
 Creditor on the one hand, and other Judgment Creditors, pur- 
 chasers or mortgagees of the Debtor, on the other. 
 
 These questions have been for the most part set at rest by the 
 recent Act, which protects bona fide purchasers {z), and the Act 
 which provides (a) that every bill of sale executed by a Judg- 
 ment Debtor after Judgment — whereby he has either voluntarily 
 or for value, absolutely or conditionally, and either subject or 
 not subject to any trusts, assigned any personal chattels, and 
 
 (.r) Ante, p. 59. {z) 19 & 20 Vict. c. 97. 
 
 {y) 18 & 19 Vict. c. 32. (a) 17 & 18 Vict. c. 3C.
 
 PRIORITIES. 67 
 
 whereby the grantee may, with or without notice, immediately, 
 or at any future time, seize or take possession of such chattels — 
 shall within twenty-one clays of its date be filed in the Queen's 
 Bench. If this be not done, the property will be liable to the 
 execution Creditor, if at the time of execution it remains in the 
 possession of the grantor. A bill of sale is defined by the Act (h) 
 as including assignments, transfers, declarations of trust and other 
 assurances, powers of attorney, authorities or licences to take 
 possession, and it includes dispositions of machinery in the 
 nature of trade fixtures attached to a freehold mill, but assigned 
 separately from it (c), but not a mortgage of premises with the 
 machinery (d): nor does it extend to chattels real, or choses in 
 action. The case of Whitmore v. Empson {e), — which appears, 
 as to the inferences deducible from it, to conflict with Waterfall 
 V. Penistone, but arose upon a bill of sale executed before the 
 Secret Bills of Sale Act — cannot, it would seem, outweigh the 
 latter case, which was an express decision upon it (/). 
 
 Where the property is removed from the possession of the 
 grantor, no object is answered by registering the bill of sale (g). 
 
 Nor does the Act confer any title other than would have 
 existed before it. Although duly registered, therefore, a bill 
 of sale is still obnoxious to all pre-existing objections to its 
 validity, whether under 13 Eliz. or otherwise. Thus, in con- 
 nection with the doctrine of reputed ownership, it has been said 
 that there are no circumstances under which it would have been 
 necessary (in order to support the bill of sale as against Creditors 
 before the Act) to have placed the holder of it in possession 
 of the goods, which would not be proper now {k). 
 
 If two writs of ^. fa. are delivered to the Sheriff against the judgments 
 same person, he must apply the proceeds of any sale under them '"''''' ^^' 
 in satisfaction of that writ which was first delivered to him (i), 
 even though they were both delivered to him on the same day. 
 
 And the same circumstance would determine their priority in 
 Equity. 
 
 2. As regards choses in action. Choses in 
 
 The majority of the Court of Queen's Bench have held (k) action. 
 
 (h) Ibid. s. 7. Sale, 258. 
 
 (c) Waterfall v. Penistone, 6 Ell. & (g) Ibid. 250. 
 
 Bl. 876. (h) Re Daniel, Ex parte Ashby, 25 
 
 {d) Mather v. Fraser, 2 Kay & J. L. T. 188. 
 530. (i) Archb. Pr. 618. 
 
 (e) 23 I5eav. 313. (k) Watts v. Porter, 3 Ell. & Bl. 743, 
 
 (/) Miller and Collier on Bills of
 
 68 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Judgment 
 
 V. 
 
 prior assign- 
 ment 
 
 subsequent 
 
 Equitable 
 
 Mortgagee. 
 
 that a puisne Judgment Creditor who has obtained a Common 
 Law order charging stock in which his Debtor had an equitable 
 interest, and who first gave notice of the order to the trustees 
 of the stock, is entitled to preference over a prior incumbrancer 
 of the same stock, of which he had no notice. However, if the 
 prior incumbrancer had first given notice, it seems it would have 
 been otherwise. 
 
 It is singular to see the Court of Queen's Bench adjudicating 
 priorities of claims to equitable interests ! 
 
 It is to be observed, however, that Lord St. Leonards thinks (/) 
 the opinion of the sole dissenting Judge the sounder one, and the 
 decision has been since received with dissatisfaction on more 
 occasions than one by the Chancery Bench (ni). In a similar 
 case (n), too, there is an express decision of Vice-Chancellor 
 Wood, in accordance with the opinion of Mr. Justice Erie in 
 Watts V. Porter, " the condition of the statute (1 & 2 Vict.) for 
 the charge being that there should be stock standing in the name 
 of a trustee in trust for the Debtor ; if the Debtor has already 
 assigned the stock, it is standing in trust not for him but for the 
 assignee, the question of notice or no notice to the legal owners 
 being immaterial as between an assignee of stock for value and a 
 Judgment Creditor" (o). 
 
 A cestui que trust of residuary realty and personalty assigned 
 his share by way of security. The assignee gave notice to the 
 trustees. The i-ealty was afterwards sold in an administration 
 suit, and the proceeds paid into Court. The assignee, though 
 he obtained no Stop order, was preferred to a subsequent Judg- 
 ment Creditor who had obtained a charging order of the fund in 
 Court {p). If the Judgment Debtor assign a fund in Court before 
 the Judgment Creditor obtain an order nisi to charge it, the 
 assignee may obtain a stop order before the order nisi is made 
 absolute, and thereby obtain priority over the Judgment Cre- 
 ditor, if the latter at the time of making his charging order 
 absolute had notice of the assignment {q). 
 
 An equitable mortgagee, by deposit, of railway shares has 
 been held entitled to priority over a prior Judgment Creditor 
 who has obtained a charging order subsequent to the mortgage, 
 
 (;) Vend, and Purch. (13th cd.) 430 
 (n. I). 
 
 (m) Beavan v. Earl of Oxford, 2 Jur., 
 N. S. 121 ; Scott V. Lord Hastings, 4 
 Kay & J. 633. 
 
 («) Scott V. Lord Hastings, 4 Kay & 
 
 J. 633. 
 
 (o) 3 Ell. & Bl. 758. 
 
 ( p) Brearcliffe v. Dorrington, 4 De G. 
 & Sm. 122 ; and see post, " Mort- 
 gages." 
 
 {q) Warburton v. Hill, Kay, 470.
 
 PRIORITIES. 69 
 
 even though tlie latter gave notice to the company of his order, 
 and the mortgagee did not of his mortgage (r) ; " notice being 
 only required when a charge is to be created by way of equitable 
 mortgage on an equitable interest, and where there are trustees 
 in whom the legal estate is vested. A company is not bound to 
 attend to any equitable assignment a shareholder may make, or 
 any incumbrance he may create" (s). But as against the mort- 
 gagor's bankruptcy assignees, notice must be given to take them 
 out of his order and disposition (0. 
 
 S. As regards realty and chattels real. Realty and 
 
 Of these priorities something has already been said inci- Chattels real. 
 dentally in treating of the legal rights of the Creditor (u) ; they 
 are, however, so important that they must be gone into more 
 particularly, and it will be well to collect them in one view. 
 
 A Judgment will, at Law, if registered, and (if it be entered At Law. 
 up after July 23, 1860), provided execution thereon be registered Legal free- 
 before a subsequent purchase for value, bind, as we have seen, "°^'*^" 
 the legal freeholds of the Debtor in the hands of such purchaser 
 (and a fortiori, in those of a voluntary alienee), and that, whether 
 the legal estate has or has not been conveyed to the purchaser, 
 and notwithstanding that he purchased without notice, for 
 although it binds the lands as against him no further or other- 
 wise, or more extensively, than a docketed Judgment did prior 
 to 1 & 2 Vict, (r), yet before that Act such a Judgment bound 
 the land in the hands of a purchaser even without notice (y). 
 But the writ must be executed within three months of its regis- 
 tration. 
 
 As to legal copyholds, as these were not extendible at all Le^al Copy- 
 before 1 & 2 Vict., a purchaser of them, if without notice, is, ^°^^^- 
 under the 2 8c 3 Vict., safe against the Judgment Creditor. 
 
 As regards purchasers of legal terms, the Judgment is now, as Legal terms. 
 against them, placed on the same footing as against purchasers 
 of legal freeholds {z). 
 
 As regards trust freeholds, they, if purchased for value sub- Trust free- 
 sequently to the Judgment but before execution sued, would holds. 
 
 (r) Dunster v, Glcngall, 3 Irish Ch. (u) Ante, Sect. 4. 
 
 Rep. 47. (a) 2 & 3 Vict. c. 1 1, s. 5. 
 
 {s) Per Lord Campbell, 3 Ell. & (;/) 2 Cruise's Dig. 49. 
 
 Bl. 75G. (z) 23 & 24 Vict. c. 38, s. I. 
 
 (<) Ex parte Boulton, in re Sketch- 
 ley, 1 De G. & J. 163.
 
 70 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Trust copy- 
 holds. 
 
 Trust terms. 
 
 In Equity. 
 
 Judgment 
 
 V. 
 
 Purchaser 
 with notice. 
 
 Without 
 notice. 
 
 appear to be unaffected, at Law, by a registered Judgment, even 
 though the writ be registered, whether the purchaser has or has 
 not had the legal estate conveyed to him, provided he had no 
 notice of the Judgment, for it affects such purchasers no further 
 than it affected them before 1 &; 2 Vict. (6), and before that Act 
 it affected only such trust freeholds as the trustee was seised of 
 in trust for the Debtor at the time of execution sued (c) ; but ex 
 hypothesi. the trustee is seised of them, in the case put, in trust 
 for the purchaser (d). But if the Creditor can fix the purchaser 
 with notice he will be able to take the lands in legal execution. 
 
 With regard to trusts of copyholds, a purchaser of them with- 
 out notice is safe from the Judgment, as they were not extendible 
 at all prior to the 1 & 2 Vict. 
 
 And so as to the purchaser without notice, before execution 
 sued, of a trust term. But if the purchaser can be fixed with 
 notice, and the trust be extendible, the Creditor may extend 
 them, it would seem, in the hands of the purchaser (e). 
 
 In Equity, a Judgment with the writ registered before a sub- 
 sequent alienation for value with notice binds the realty and 
 chattels real of the Debtor, whether legal or equitable, as against 
 the alienee, whether the alienation has been legally perfected 
 or not (/). 
 
 And a purchaser who has notice will not be able to protect 
 himself by alleging want of notice in his vendor (g), though 
 generally he is entitled to that protection (h). He is therefore 
 entitled, on a bill for specific performance against him by the 
 vendor, to insist that a Judgment Creditor, who has a charge on 
 the estate sold, should join in the conveyance, or exonerate the 
 property, though the vendor had no notice of the Judgment (i). 
 
 Purchasers, however, for value without notice (k), whether 
 having the legal estate or not, of freeholds, copyholds or 
 chattels real, are safe against the Judgment and writ though 
 registered, for registration is not notice (1). Thus a pui'chaser 
 (for value and without notice) of an Equity of Redemption of 
 
 (6) 2 & 3 Vict. c. 11, s. 5. 
 
 (c) 29 Car. 2, c. 3, s. 10. 
 
 (d) Hunt V. Coles, Comyns' Rep. 
 226. 
 
 (e) Prid. Judg. 64. 
 
 (/) Lane v. Jackson, 20 Bcav. -535. 
 {g) Procter i). Cooper, 2 Drew. 1. 
 
 (h) Freer v. Hesse, 4 De G., M. & G. 
 495. 
 
 (0 Ibid. 
 
 (/O 1 & 2 Vict. c. no, s. 13, sub 
 finem. 
 
 (/) Ante, p. 27.
 
 PRIORITIES. 71 
 
 Redemption of a mortgage is safe against prior Judgments, and 
 it is not incumbent on him to search for them. In the case in 
 which this was decided (m), the purchase was within a year after 
 the Judgment; and as the Judgment Creditor could not enforce 
 his Judgment within the year under the 1 & 2 Vict. c. 1 10, it has 
 been said " there seems no way of preventing a Judgment Debtor 
 from defeating the charge by selling to a purchaser, without no- 
 tice" {n). This anomaly, however, (if it be one,) flows from the 
 doctrine of notice, not from the statutory prohibition to the Cre- 
 ditor to sue within the year, which he may, if he proceeds under 
 the old Jurisdiction. 
 
 A voluntary and fraudulent alienation, or agreement to aliene, v. 
 realty or chattels real, whether trust or legal, is void at Law and P"o'^^oiiin- 
 
 •' ' to ' tary Ahenee. 
 
 in Equity against subsequent bond fide Judgments registered or 
 unregistered (o). 
 
 A contract to aliene for value is at Law void as against a sub- v. 
 sequent Judgment Creditor, with or without notice (/?). In jractee for 
 Equity, however, such a contract will prevail if the consideration value, 
 money be adequate {q) ; and that, whether the subject matter of 
 the contract be realty or chattels real, trust or legal. 
 
 A legal mortgagee is preferred at Law and in Equity to a sub- i>. 
 sequent Judgment Creditor registered or unregistered, whether Mor^frao-ee. 
 with or without notice, whose only remedy against the mortgagee 
 will be in Equity to redeem him. 
 
 Legal mortgagees being purchasers pro tanto, the same rules 
 obtain, both at Law and in Equity, as to their priorities over 
 Judgment Creditors, as we have seen, to obtain in the case of 
 purchasers properly so called. 
 
 As to equitable mortgagees, since they have no remedy at v. 
 Law against the land, their claims in Equity have only to be abie'^Mort.. ' 
 considered. gagee. 
 
 Now, as in Equity a Judgment Creditor is considered, though 
 not for all purposes (r), an equitable mortgagee, most of what 
 will be hereafter said of the priorities of equitable mortgagees, 
 inter se, will apply here. An equitable mortgagee, by deposit, is 
 preferred to a subsequent Judgment Creditor, even without notice 
 of the deposit ; and although he has obtained actual possession 
 of the land at Law under an elegit (s). 
 
 (7k) Lane v. Jackson, 20 Bcav. 535. (q) Finch v. Lord Winchelsea, 1 P. 
 
 (n) Ibid., note to p. 540. VVms. 277. 
 
 (o) 13 Eliz. c. 5. (r) 2 Jur., N. S. 110. 
 
 (/;) Ante, p. 30. (s) Wliitwortli v. Gaugain, 3 Hare, 
 
 416.
 
 72 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Frame of re- 
 demption suits. 
 
 subsequent 
 
 Equitable 
 
 Mortgagee. 
 
 So, if a cestui que trust of land mortgage it, and afterwards a 
 Judgment is entered up against him, the Judgment Creditor 
 takes the property of the Debtor, subject to every liabiHty under 
 which the Debtor himself held it in Equity. 
 
 Supposing ihat there are several prior mortgagees, prior, that 
 is, not necessarily^ in time, but in point of preference, to the 
 Judgment Creditor, who brings his suit to redeem them, the 
 case will stand thus : each of them, in their order and priority, 
 will have a right to redeem the one immediately preceding him, 
 and in default of doing so will be foreclosed ; and the plaintiff 
 can only come at any substantial remedy by redeeming them 
 all— which he is always allowed to do. Thus, if A., B. and C. 
 be prior mortgagees and D. a puisne Judgment Creditor, it 
 shall be part of his prayer and decree that B. shall be at liberty 
 to redeem A., (and so doing, add A.'s debt to his own,) thereby 
 becoming first incumbrancer ; that C. shall then be at liberty 
 to redeem A.'s debt, thus increased by the amount of B.'s, and 
 (so doing, and adding it to his own,) in his turn become first 
 incumbrancer ; and that D. may redeem A., B. and C, and (so 
 doing, and adding their debts to his own,) be redeemed by the 
 Judgment Debtor, who shall, in default, be foreclosed (t) by D., 
 or be liable to a sale under 15 & 16 Vict. c. 86, s. 48 (?/). If any 
 of the mortgagees to whom it is thus offered to redeem refuse, 
 he shall stand out of the way altogether and be foreclosed ; and 
 if they all so refuse, they shall be all foreclosed. 
 
 The same is Law, if the prior incumbrancers A., B., C. or 
 any of them,, were Judgment Creditors duly registered before 
 the plaintiff. 
 
 Several Judgment Creditors are to be treated as if they formed 
 one incumbrancer, and to have but one period fixed in the 
 decree within which they shall redeem or be foreclosed {x). 
 
 But if the mortgagor become indebted to the prior mortgagee 
 for sums advanced by him subsequently to, and with notice of, 
 the Judgment, the Judgment Creditor may redeem the mortgage 
 without including such advances (?/). 
 
 With regai'd to Judgment Creditors and subsequent equitable 
 mortgagees, the same rules prevail as between Judgment Cre- 
 ditors and subsequent legal mortgagees. The circumstance of 
 the subsequent incumbrancer not having the legal estate makes 
 
 (t) See Seton, 217 (2nd ed.), for 
 Form of such Decree, 
 (a) Ante, p. 62. 
 (j:) Stead v. Banks, 5 De G. & Sni. 
 
 560, and cases in note. 
 
 (ij) Shaw V. Neale, 6 H. Lords Cases, 
 581.
 
 PRIORITIES. 
 
 73 
 
 no difference (z). If the equitable mortgagee have notice, he 
 can only redeem the Judgment, provided it, and the writ of 
 execution, be registered. " The principle upon which the Court 
 of Equity protects a purchaser for value without notice is wholly 
 irrespective of what estate he has " (a). It is a defence in that 
 Court to a legal claim. The principle of the Court in such a 
 case is neither to afford assistance nor prejudice his rights, but 
 to leave all parties to their remedies at Law. It will, therefore, 
 as against equitable mortgagees, not give the Judgment Creditor 
 his enlarged remedies under 1 & 2 Vict., nor, on the other hand, 
 will it lend its assistance to the mortgagee to resti-ain the Judg- 
 ment Creditor from proceeding against him at Law {h). 
 
 Where the suit is against subsequent incumbrancers, whether 
 mortgagees or Judgment Creditors — subsequent, that is, not ne- 
 cessarily in time, but in claim to preference — the proper prayer 
 and decree for the plaintiff will be for a declaration of his priority, 
 for an account, redemption of plaintiff by defendant, and, in 
 default, foreclosure or sale. 
 
 Judgment Creditors will be preferred to Creditors under a ^ ,V" 
 
 * r Creditors un- 
 
 trust deed, if they register before the deed is executed by such der trust deed. 
 Creditors — for the latter are looked upon in the light of pur- 
 chasers, as against whom registration is necessary — although 
 the registration be subsequent to the date of the deed (c) ; secus, 
 if the registration be subsequent to the execution {d). 
 
 A Judgment Creditor, with notice of a trust deed by the 
 Debtor for the benefit of such Creditors as execute within a 
 given time — the trustees having a discretionary power to enlarge 
 it — and refusing for twenty years to execute it, relying on his 
 Judgment, will not, if the Judgment turn out invalid, be allowed 
 the benefit of the trust deed {e). 
 
 A landlord is entitled to priority over the Execution Creditor r. 
 to the extent of one year's rent due at the time the goods were ^" ""^ 
 seized by the Sheriff (/), or of rents of four weeks or other spe- 
 cified time of payment (^). The practice is for the Sheriff to 
 
 (s:) Jerrard v. Saunders, 2 Ves. jun. 696. 
 
 457 ; Penny v. Watts, 2 De G. & Sm. {d) Lee v. Green, 6 De G., M. & G. 
 
 521. 155. 
 
 (n) Colyer I'. Fincli, 5 11. LordsCases, {e) Brandling v. Plummer, 6 W. R. 
 
 905; 18 Jur. 935. 117. 
 
 (6) Attorney-General t'. Wilkins, 17 (/) 8 Ann. c. 14, s. 1. 
 
 Beav. 285. {g) 7 & 8 Vict. c. 96, s. 67. 
 
 (c) Langliorn v, Ilarland, 4 W. R. 
 
 F 5
 
 74 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 County Court 
 cases. 
 
 Generally. take enough to pay both and to pay each (A). Growing crops, 
 so long as they remain on the land, are liable to the landlord for 
 rent due after any seizure or sale of them by the Sheriff under a 
 writ of execution, although the Sheriff may have assigned them; 
 and the landlord may distrain upon them (i). 
 
 The landlord's remedy under the Act of Anne is by an action 
 of "case" against the Sheriff; but it is doubtful whether he has 
 any against the Execution Creditor (k). 
 
 If the Judgment be a County Court one, the landlord has a 
 preference over the Execution Creditor to the extent of four 
 quarters' rents if the tenancy is quarterly, or of two periods of 
 payment on any other tenancy less than a year, or of one year's 
 rent at most (/). 
 
 The priorities of Judgment Creditors, inter se, as regards 
 land and chattels real, depend, the reader will remember, both at 
 Law and in Equity on the dates of their respective registra- 
 tions (m). 
 
 Purchasers of land with notice of unregistered Judgments or 
 writs of execution are safe against them at Law and in Equity, 
 whether the subject be realty or chattels real, trust or legal, and 
 whether the legal estate has or has not been conveyed to them {n). 
 
 And so as to un-re-registered Judgments (o). 
 
 It would seem that now that Judgments are specific liens on 
 lands, " equitable estates," as Lord St. Leonards calls them {j)), 
 a prior Judgment Creditor obtaining a subsequent mortgage may 
 "tack" the Judgment to the mortgage, i. e. claim to be paid both, 
 against the mortgagor or a mesne incumbrancer [q). And a prior 
 mortgagee with a subsequent Judgment was always entitled to 
 tack (r) ; but not where the mortgage has been paid off (5). 
 Conditions of. The following, however, are the conditions to which the right 
 of tacking is subject : — 
 
 L The person who claims the right must have, as against the 
 person against whom the tack is to operate, the legal estate, or 
 at least a legal lien. 
 
 2. He must have made his subsequent advance witjiout notice 
 of the mesne incumbrancer's claim. 
 
 3. He must have made it on the credit of the land. 
 
 Unregistered 
 Judgment or 
 Writ 
 
 t'. 
 subsequent 
 Purchaser. 
 
 Tacking. 
 
 Qi) Archb. Pr. 597. 
 
 (0 14& 15 Vict.c.25, s. 2. 
 
 (A:) Risely v. Ryle, 11 M. & W. 16. 
 
 (0 9 & 10 Vict. c. 95, s. 10". 
 
 (»i) Ante, p. 24. 
 
 (n) 18 & 19 Vict. c. 15, s, 4. 
 
 (0) Ibid. 
 
 (p) Rollcston V. Morton, 1 Conn. & 
 Laws.2GG. Post, Divis. II. ."Mortgages." 
 {q) 2 Spence, Eq. Jur. 723. 
 (;■) Ibid. 722. 
 [s) 7 W. R. 380.
 
 PRIORITIES. ib 
 
 It is, perhaps, superfluous to remark that tacking is an equit- 
 able doctrine, depending on the principle, " He who would have 
 Equity must do Equity," and to be enforced tliere only. 
 
 The doctrine of Contribution, though a legal as well as an Contribution. 
 equitable one (t), operates more eifectually in Equity, and is a 
 branch of the larger equitable doctrine of marshalling securities. 
 It is not indeed strictly a Judgment Creditor's right at all, but 
 may be properly noticed here, as indirectly affecting him, and 
 may be thus described. Formerly, every extent at Law under 
 an elegit was required to be of half of the whole of the Debtor's 
 lands including his chattels real : if, therefore, a purchaser of part 
 were extended for the whole, the execution was liable to be set 
 aside (w). The Creditor was spared this risk, by 16 & 17 Car. 
 2, c. 5, which, however, saves to the owner of the land extended 
 his remedy against the owners of the lands omitted from the 
 extent (.x). This remedy seems to be in Equity (y) ; and applies 
 only to the Debtor's land. 
 
 The right is the purchaser's, and not the right of the Debtor 
 or his representatives, not even of his heir (z). A plaintiff 
 Judgment Creditor attempted ineffectually to avail himself of 
 this head of Equity Jurisdiction in the following case. Prior to 
 the Judgment the Debtor's lands had been sold for value, and so 
 of course were not subject to the Judgment, though they were 
 subject to a former one. He had, however, at the date of the 
 plaintifTs Judgment, other lands, upon which both Judgments 
 were liens. The plaintiff sought either to compel the prior 
 Judgment Creditor to resort solely to the purchased lands, (and 
 so far it was a question between the Judgment Creditors, inter 
 se,) or the purchaser to contribute to his (plaintiff's) Judgment, 
 which made it a contest between him and the purchaser. The 
 Lord Chancellor, however, decided against the plaintiff on both 
 grounds (a). 
 
 A purchaser appears to have no such right of contribution 
 against purchasers of other portions of the land, who derive 
 their title under a prior settlement for value (b). 
 
 (t) Dering v. Lord Winchelsea, 1 (z) Eq. Ca. Abr., tit. Contribution 
 
 Cox, 321. and Average; 5 Jarm. (Sweet) 61. 
 
 (m) 3 Coke's Rep. 146. (a) Averal v. Wade, LI. & G. (temp. 
 
 (x) Sect. 2. Sugd.) 252. 
 
 (y) Hartley v. O'Flaherty, LI. & G. (i) Hartley v. O'Flaherty, LI. & G. 
 
 (temp. Plunk.) 215. (temp. Plunk.) 208.
 
 76 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Section 10. 
 
 Death of Creditor — Assignme?it of Judgments- 
 Costs — Satisfaction. 
 
 Interest — 
 
 Death before Legal Execution. 
 
 After Fi. Fa. 
 Effect of Death in Equity. 
 Assignment of Judgment. 
 Inter Vivos. 
 
 Absolutely. 
 By way of Security. 
 By Will. 
 By Husband of Wife's Judgment. 
 
 Interpleader . 
 Rate of Interest. 
 Arrears. 
 Costs. 
 Satisfaction. 
 
 By Statute of Limitations. 
 
 By Payment or Release. 
 Revivor. 
 
 Death before 
 execution. 
 
 Aiterji.fa. 
 
 If the plaintiff die after final Judgment, but before execution, in 
 a personal action, — and all actions for debt are personal (c), — his 
 executor or administrator may sue out a writ of revivor in the 
 form mentioned in the schedule to the Common Law Procedure 
 Act, 1852, or may apply to the Court or a Judge for leave to enter 
 a suggestion, that it appears to the Court that he is entitled to 
 have and issue execution ; or he may, if the Court or Judge shall 
 dismiss the application, bring an action on the Judgment : and 
 the Court or a Judge may allow such suggestion to be entered in 
 the Form, No. 8 in the Schedule A. to the Act, and execution 
 to issue thereon (d). 
 
 The writ of revivor will be allowed without rule or order, if 
 the Judgment is less than ten years old ; if older, not without a 
 rule or Judge's order ; if more than fifteen years old, not without 
 a rule to show cause (e). 
 
 If there are several executors, the writ of revivor may be in 
 the names of all, though only one has proved. 
 
 If the death be after af.fa. or ca. sa. sued out, either may be 
 executed by the Sheriff, notwithstanding the death (/) ; and if 
 no executor be appointed or administration granted, the money 
 levied under ^ fi. fa. must be brought into Court (9). 
 
 So a Judgment may be similarly revived by the executor of 
 an executor {It), but not by the administrator of an executor, nor 
 by the executor or administrator of an administrator (^). In 
 these last cases administration de bonis non must be sued out. 
 
 (c) 3 Blackst. (Steph.)'147. 
 
 (d) C. L. P. Act, 1852, ss. 129, 130. 
 
 (e) Ibid. s. 134. 
 
 (/) Ellis V.Griffith, IG M.ic W. lOG. 
 
 (g) Thoroughgood's Case, Noy, 73. 
 (h) Wms. Exors. 822. 
 (0 Archb. Pr. 1062.
 
 DEATH OF CREDITOR, ETC. it 
 
 and then such administrator may revive the Judgment and have 
 execution thereon (j), as well as on a Judgment obtained by the 
 executor. 
 
 The practice, upon the death of the Judgment Creditor, or Effect of death 
 one of several Judgment Creditors (where the remedy is in 
 Equity), as to abatement and revivor, is the same as in the case 
 of the death of specialty and simple contract Creditors (k). 
 
 Judgments, Decrees, Rules and Orders, like other choses in Assignment of 
 action, are assignable inter vivos (whether absolutely or by way ° 
 of security). Previous to 12 & 18 Vict. c. 95, an Irish Judg- Absolute. 
 ment was (and still is, if entered up prior to August, 1849) as- 
 signable at Law, so as to pass the legal ownership in the debt to 
 the assignee, who may thereupon take all the remedies at Law 
 to recover the same in his own name: and this, by the Irish 
 Acts, 9 Geo. 2 and 25 Geo. 2, c. 14, partly to enable a Papist 
 Judgment Creditor to pass the debt to a Protestant, and give 
 the assignee the remedy by elegit, which he could not him- 
 self (/) use. But with regard to those entered up since August, 
 1819, and to English Judgments, Decrees, Orders and Rules 
 generally, it is othei'wise ; for these, unless the assignment con- 
 tain a power of attorney, are transferable only in Equity as 
 equitable choses in action [m) : but if there be such a power, the 
 transferee may pursue the assignor's legal remedies ; for a power 
 to recover a debt (which is part of the terms of the power), 
 authorizes the attorney to arrest the Debtor, and therefore to 
 " do all acts through which he may recover" the debt (w). Yet, 
 even in such a case the benefit alone is transferable, the legal 
 ownership in the debt still remaining in the assignor. For the 
 same reason, though the beneficial interest in the debt is de- 
 visable (and the legal ownership is devisable also), the executor or 
 administrator, not the legatee or next of kin, will be the proper 
 party to proceed, and that at Law, against the Debtor to recover 
 it ; though (as we shall see hereafter) (o) the party beneficially 
 interested may proceed in Equity against the executor or admi- 
 nistrator refusing to sue, or throwing obstacles in the way of its 
 recovery. 
 
 Judgments are also assignable by way of security. As to this, By way of 
 see po^t, " Mortgages of Debts." mortgage. 
 
 U ) Wms. Kxors. 807 ; 17 Car. 2, c. 8, Lef. 22. 
 
 s. 2. {m) 2 Spence, 852, n. (e). 
 
 (A-) Post, Book II., Ch. II. («) 2 Roll. Rep. 390. 
 
 (/) O'1-alloM V. Dillon, 2 Sch. & (o) Post, Book II., Cli. I., Sect. 6.
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 By bequest. 
 
 Transfer must 
 be written. 
 
 By husband of 
 wife's Jutlor- 
 
 Interpleader. 
 
 Interest. 
 
 If the assignee of a Judgment debt mortgages it (the Judg- 
 ment Debtor having no notice of the mortgage), and a general 
 release of all claims is executed between the mortgagor and Judg- 
 ment Debtor, the mortgagee shall have no claim against him, 
 although the latter has neglected to have the security, viz., the 
 assignment, delivered to him (p) upon the release. 
 
 Judgments are also transferable by will. 
 
 As a Judgment is a charge on land, it vv'ould appear necessary, 
 so far as it is sought to make it available against freeholds and 
 terms, to transfer it in writing, both at Law and in Equity (9). 
 And for the same reason it would seem that the assignment of 
 a trust in such a J udgment must be in writing (r). 
 
 The assignee is not a Judgment Creditor within the garnishee 
 clauses of the Common Law Procedure Act, 1854. 
 
 The voluntary (s), and a fortiori the valuable, assignment {t) 
 by a husband of a Judgment obtained and extended by the wife 
 dum sola — alters the property in it, and is a reduction into pos- 
 session, entitling his administrator to any trusts declared of it for 
 the husband's benefit in preference to the administrator of the 
 surviving wife : and so of a Decree that the wife should hold land 
 till a debt is paid her (u). 
 
 See further as to the assignment of Judgments, "Assignment 
 of Specialty and Simple Contract Debts," ^05^, Book XL, Ch. 1, 
 Sect. 6. 
 
 The executor of a Judgment Debtor may file a bill of inter- 
 pleader against the conflicting claims of the assignee for value 
 of the Judgment Creditor, his assignee in insolvency, and his 
 attorney claiming a lien for costs {x). 
 
 The Judgment Creditor is entitled to interest on his debt at 
 the rate of 41. per cent, per annum (y) from the date of the entry 
 of the incipitur, or of drawing up the rule, if it be a Common 
 Law Judgment or rule, or from the pronouncing of the Decree 
 or Order, if it be in Equity (z), down to the day of payment. 
 
 This is the Law where no amount of interest has been stipu- 
 lated for ; but where it has been, there, since the repeal of the 
 Usury Laws (a), that is, on Judgments since 10th August, 1854, 
 
 {p) Stocks V. Dobson, 4 De G., M. 
 &G. 11. 
 
 (7) 29 Car. 2, c. .3, s. 3. 
 
 (r) Ibid, s. 9. 
 
 (s) Lord Carteret v. Pascall, 3 P. 
 Wnis. 200. 
 
 (<) Ibid. 199. 
 
 («) Ibid. 
 
 (.r) Jones v. Thomas, 2 Sm. & 
 
 186; V. Bolton, 18 Ves. 292. 
 
 (y) 1 & 2 Vict. c. 110, s. 17. 
 (z) Ante, p. 22. 
 («) Ante, p. 9.
 
 DEATH OF CREDITOR, ETC. '^^ 
 
 any amount of interest may be agreed on and recovered as sucli, 
 whatever the nature of the contract on which the Judgment was 
 entered up or obtained. 
 
 The same legal remedies (b), and, it is presumed, the same Same remedies 
 equitable remedies, are given the Creditor for recovering the 
 interest as for the principal. 
 
 But no more than six years' arrears of interest can be re- Arrears of in- 
 covered either at Law or in Equity (counting from the time either 
 when such interest first became in arrear, or when the party 
 chargeable with it, or his agent, last gave a written acknowledg- 
 ment of its being due to the Creditor or his agent), such interest 
 being in respect of a " sum of money charged on land " (c). 
 
 The costs of the suit are also recoverable as part of, and by Costs. 
 the same remedies as, the principal debt, following, at Law, the 
 Judgment as a " necessary appendage " (d), unless (the sum re- 
 covered being less than 5/.) the Judge certify against them {e). 
 In the case (as has been observed) of Judgment for defendant, 
 they form the only sum for which he is a Judgment Creditor. 
 In Equity also, where the payment of costs forms part of the 
 decree or order, tliey become part of the aggregate amount, and 
 are enforceable in the same way as the Judgment (f). 
 
 But if a bill be filed against Judgment Creditors, all of whom 
 disclaim, those only who disclaim immediately upon notice of 
 the suit are entitled to their costs for tiiat suit (g). 
 
 A Judgment may be discharged either by laches of the Cre- Satisfaction. 
 ditor in pursuing his remedies, or by payment of his debt. 
 
 Whether he proceeds at Law or in Equity, and whether against Statute of 
 his Debtor's real or personal estate, the Creditor must proceed '"" ^ '°"^* 
 within twenty years either of the commencement of his right or 
 of part payment of the principal or interest, or of the last written 
 acknowledgment of such right to him or his agent by the party 
 liable or his agent (/i). 
 
 It would seem no additional time is allowed for the Creditor's 
 disabilities, as in the case of proceedings to recover land. 
 
 If there be two or more joint Debtors, the circumstance that 
 Judgment has been recovered against one of them who is not 
 beyond the seas, shall not bar any action or suit by the Creditor 
 (after their return) against such of them as were beyond the seas, 
 
 (b) 1 & 2 Vict. c. 110, s. 17. (e) 23 & 24 Vict. c. 126, s. 34. 
 
 (0 O' Kelly D. Bodkin, 2 Jr. Eq.Rep. (/) Bloxam y. IIopkinson,7 W. R.606. 
 
 3G1. (o-) Bradley v. Borlase, 7 W. R. 125. 
 
 {,!) 3 Steph. Blackst. G43. (h) 3 & 4 Will. 4, c. 27, s. 40. 
 
 f8
 
 80 JUDGMENTS BY AND AGAINST ONE. 
 
 i. e., out of the United Kingdom, Isle of Man, oi- Channel Islands, 
 or Isles adjacent (if the Queen's dominions) (i). 
 Payment or Besides being discharged impliedly by the Statute of Limita- 
 
 tions, a Judgment is discharged at Law expressly by entering 
 up a satisfaction upon an acknowledgment of satisfaction (j), 
 which is entered on the roll, or by a release of it by deed, or by 
 a release " of all suits " (k), or " all debts ;" but not by a release, 
 before execution, of all the Creditor's right or interest in the 
 Debtor's lands, or in any particular lands, because he had not 
 strictly any interest therein (/). The mode of entering satisfac- 
 tion, at Law, is now regulated by the General Orders of April 
 2S, 1857, and R. 80, H. T. 1853. 
 
 The marriage of the Judgment Creditor with the Judgment 
 Debtor is a release of the debt at Law (m), though not neces- 
 sarily so in Equity. 
 
 A Judgment Creditor does not release his Judgment by 
 executing a deed, whereby his Debtor assigns all his property 
 to trustees for the benefit of his Creditors, and the Creditors 
 covenant that it should operate as a release of all Judgments, &c., 
 if the deed also reserve to the Creditors the benefit of all liens 
 or specific securities ; nor if the Judgment Creditor assigned his 
 Judgment to the trustees will such assignment merge the Judg- 
 ment, but he may still sue on behalf of himself and all other 
 Creditors to enforce the trusts (n). 
 
 If a tenant by elegit, however, takes a conveyance of the land 
 
 of which he is in possession under the elegit, it has been held 
 
 that his tenancy by elegit on the rest of the property extended 
 
 is extinguished, and the Judgment satisfied (o). But now the 
 
 release from a Judgment of part of any lands charged with it does 
 
 not operate as a release of other parts of them. The Law of 
 
 England and Ireland is, in this respect, at length assimilated (p). 
 
 Execution may ^ Judgment Creditor may issue execution, as of course, any 
 issue withm . .... pit nixi i-r>i 
 
 six years. time within SIX years oi the date ot the Judgment (q) ; but it he 
 
 has allowed that time to expire, he cannot issue it without 
 
 reviving it according to the Common Law Procedure Act, 
 
 Kevivor. ] S52 (r) ; if he revives it, the twenty years allowed by the 
 
 Statute of Limitations count from the revivor. 
 
 (f) 19 & 20 Vict, c, 97, ss. 11, 12. (o) Ilele v. Lord Bexley, 17 Beav. 
 
 (j) 23 & 24 Vict. c. 115, s. 2. 28 ; qucere, whether that would be so 
 
 (A) 6 Bac. Abr. " Helease," I, (2). held since 22 & 23 Vict. c. 35, s. 11. 
 (/) Prid. Judg. 56. (p) 22 & 23 Vict. c. 35, s. 11. 
 
 (m) See post. Book II., Section " Re- (q) C. L P. Act, 1852, s. 128. 
 
 lease of Debts." (r) S. 129. 
 
 (n) Squire v. Ford, 9 Hare, 47.
 
 DEATH OF CREDITOR, ETC. 
 
 81 
 
 As, however, suing out execution is not necessary to the Judg- 
 ment Creditoi''s suit -in Equity (s), unless he proceed under the 
 old Jurisdiction (t), it would seem he need not " revive" at Law 
 in order to sue in Equity after the six years. 
 
 Section II. 
 
 Judgment Debtor a Bankrupt or Insolvent. 
 
 Bankruptcy. 
 
 Who are liable to he Bankrupts. 
 
 Acts of Bankruptcy . 
 
 Effect of, on Legal Remedies, 
 
 V. Personalty. 
 
 V. Realty. 
 
 V. Person. 
 Effect of, on Equitable Remedies. 
 
 Insolvency, 
 
 " Benefit " of the Acts. 
 
 48 Geo. 3, c. 123. 
 Effect of, on Legal Remedies. 
 
 1 4-2 Fict. c. 110. 
 
 Protection Acts. 
 Effect of, on Equitable Remedies, 
 
 We have hitherto considered the Debtor to be solvent. 
 The classes of persons amenable to the Bankrupt Laws are Who may be 
 the following (m) : — 
 
 Bankriijits. 
 
 Alum Makers, 
 
 Apothecaries, 
 
 Auctioneers, 
 
 Bankers, 
 
 Bleachers, 
 
 Brick -makers, 
 
 Brokers, 
 
 Builders, 
 
 Calenderers, 
 
 Carpenters, 
 
 Carriers, 
 
 Cattle Salesmen, 
 
 Coach Proprietors, 
 
 Cow Keepers, 
 
 Dyers, 
 
 Insurers against Sea, 
 Keepers of Inns and 
 
 Taverns, 
 Lime-burners, 
 Livery-Stable Keepers, 
 Market Gardeners, 
 Millers, 
 Packers, 
 Printers, 
 Scriveners, 
 Shipowners, 
 Shipwrights, 
 Victuallers, 
 Warehousemen, 
 Wharfinffers. 
 
 Fullers, 
 
 and generally all who seek their living for themselves, or as agents, 
 by buying and selling, or buying and letting to hire, or by work- 
 manship of goods. 
 
 (*) Ante, p. 62. 
 (t) Ante, p. 60. 
 
 iu) 12 & 13 Vict. c. 106, s. 65.
 
 82 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 The acts of The acts which constitute acts of Bankruptcy are the follow- 
 
 Bankruptcy. • , ^ i , • i ^ ■ \ • ,n 
 
 ing (x), and must be committed at least within one year beiore 
 
 the filing a petition for adjudication of Bankruptcy ; and some 
 of them, as will be seen, within a shorter period ; but they may 
 be committed after the trading has ceased (y). Nor is a bond 
 debt — though extinguished in it for many purposes — so merged 
 in a Judgment, as to prevent the Judgment (though recovered on 
 it after the trading has ceased) from supporting an adjudication 
 against the obligor (z). The acts (1) — (9) inclusive must, in 
 order to amount to acts of Bankruptcy, be done with intent to 
 defraud or delay creditors (a). 
 
 The debt of a single creditor (or of two or more being partners) 
 must amount to £50 ; of two, to £70 ; of three or more, to 
 £100 (b). 
 
 (I.) Departing the realm. 
 
 (2.) Remaining abroad. 
 
 (3.) Leaving his dwelling-house. 
 
 (4.) Otherwise absenting himself. 
 
 (5.) Beginning to keep his house. 
 
 (6.) Allowing or procuring himself or his goods to be taken 
 
 in execution for a debt not due. 
 (7.) Yielding himself to prison. 
 (8.) Suffering himself to be outlawed. 
 
 (9.) Making any fraudulent conveyance or transfer of his real 
 or personal estate. 
 (10.) Lying in prison, upon commitment or detainer for debt, 
 
 twenty-one days. 
 (11.) Escaping from prison on commitment for debt. 
 (12.) Filing a declaration of Insolvency within two months 
 
 before petition for adjudication. 
 (13.) Compounding with petitioning Creditor. 
 (14.) Not paying or securing or compounding Judgment debt 
 
 for eight days after notice. 
 (15.) Neglecting for eight days a peremptory order in Equity, 
 
 Bankruptcy or Lunacy. 
 (16.) Filing a petition for discharge under I 8c 2 Vict. c. 110. 
 (17.) Filing a petition under 11 & 12 Vict. c. 21. 
 (18.) Filing a petition for arrangement within two months be- 
 fore petition for adjudication. 
 
 (x) Ibid. ss. 07—82. (» Ex parte Griffiths, 3 De G., M. 
 
 (if) Wise's Bankrupt Law Consolida- & G. 174. 
 tion Act, p. (il. (o) 12 & 13 Vict. c. 106, s. 67. 
 
 (b) Ibid. s. 91.
 
 JUDGMENT DEBTOR A BANKRUPT OR INSOLVENT. OO 
 
 09.) Not paying, securing or compounding, and not entering 
 appearance for one month if he be a Member of Par- 
 liament. 
 20.) Not attending summons of Bankruptcy Court, or at- 
 tending but not admitting demand, and not deposing 
 that he has a defence on the merits, and entering into 
 a bond, if required. 
 (21.) Admitting the demand, if summoned, but not paying, 
 
 securing or compounding it for seven days. 
 (22.) Admitting part, and not deposing that he has a defence 
 on the merits for the residue and entering into a bond, 
 if required— if he do not pay the admitted part within 
 seven days after the admission, and pay, secure or 
 compound the residue for seven days after service of 
 the summons. 
 The Judgment Creditor's legal remedies are put an end to by f^J^^^'y^^^^^"''- 
 the Bankruptcy of the Debtor, or rather, they will be awarded, legal reme- 
 and his rights adjudicated, by the Law and in the Court of ^^es, 
 Bankruptcy, which is a Court of Law and Equity (b). 
 
 Out of the personal estate of the bankrupt, the Judgment p^^^^^^j^^^ 
 Creditor will be paid preferentially to his other creditors, if he 
 has bond fide perfected his execution by seizure and sale of the 
 personalty before the petition was filed, and had no notice, at the 
 time of so perfecting his execution, of a prior act of Bank- 
 ruptcy (c) ; otherwise he will be paid pari passu with them. 
 
 This preference, however, is given only to an adverse Judg- 
 ment : for, if it be one which has been entered up on a warrant 
 of attorney given, within two months of the petition, to secure an 
 antecedent debt, or on a cognovit or consent order in a collusive 
 or non-adverse action, execution thereon, though perfected, shall 
 not help the Judgment Creditor, whether the Debtor contem- 
 plated Bankruptcy at the date of the warrant, cognovit, or order, 
 or not, so long as he could not then meet his engagements {d). 
 
 But' the above remark has no application where the exe- ^^j^- 
 cution is against land, for as against it a registered Judgment, ^^ ^' 
 though entered on a warrant of attorney, and not followed 
 by execution, constitutes a valid lien, after a year from its 
 entry (e), so as to give him preference (/), and he is entitled to 
 
 (6) 12 & 13 Vict. c. 106, s. 6. (e) Ex parte Boyle, 3 De G., M. & 
 
 (c) Ibid. ss. 133, 184. G. 515. 
 
 (rf) Ibid. ss. 135, 184. (/) 1 & 2 Vict. c. 110, s. 13. 
 
 G 2
 
 84 
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Bankrupt in 
 execution. 
 
 Sealed cer- 
 tificate. 
 
 Effect on 
 equitable 
 remedies. 
 
 Vice- Chancel- 
 lor Wigram's 
 opinion. 
 
 the usual order in Bankruptcy of an equitable mortgagee {g), even 
 against copyholds, which do not pass to the assignees (A). 
 
 And even though the Judgment be not a year old at the date 
 of the Bankruptcy, --so that the Judgment Creditor is deprived of 
 his right to any " preference," — that circumstance does not de- 
 prive him of his right to an effectual charge ; so that he will be 
 properly made a defendant by a mortgagee seeking to fore- 
 close (^). 
 
 If the Debtor's person has been taken in execution on a 
 Judgment obtained, before the allowance of his certificate, for 
 any debt proveable in the Bankruptcy, any Judge of the Court 
 wherein such Judgment was obtained may, on the production 
 by the bankrupt of his certificate, discharge him {k). 
 
 And if discharged by the Court of Bankruptcy from the debt, 
 by virtue of his certificate, execution shall not subsequently issue 
 against him for it (/). 
 
 If the Court of Bankruptcy has refused the bankrupt pro- 
 tection, or refused or suspended his certificate, it shall, on the 
 application of any Creditor who has proved, or Assignee, grant 
 a sealed certificate, which shall have the eflfect of a Superior 
 Court Judgment, until the bankrupt has obtained his certificate ; 
 and under such sealed certificate the assignees or the Creditor 
 obtaining it may issue execution against the bankrupt's person (w). 
 
 The Court of Bankruptcy, however, is a Court of Adminis- 
 tration rather than of Construction, and therefore the Juris- 
 diction of Equity is not taken away by the Bankruptcy ; although, 
 if the Creditor has commenced his suit before the Bankruptcy 
 in respect of a demand proveable under it, he shall not prove 
 under it, without relinquishing his suit, and by such proof he 
 shall be deemed to have elected to take the benefit of the petition 
 for adjudication {n). 
 
 With regard to the concurrency of Jurisdiction of the 
 Courts of Chancery and of Bankruptcy, on the bankruptcy of 
 a Debtor, in adjudicating adverse claims to his property. Sir 
 J. Wigram has said, that having had occasion to consider the 
 effect of the Bankrupt Laws in excluding that Jurisdiction, 
 in cases to which otherwise it would extend, he was strongly 
 
 (g) Post, Divis. II." Mortgages." 
 (A) 12 & 13 Vict c. 106, s. 142; but 
 
 which the Court may sell for the benefit 
 
 of the creditors; ib. s. 209. 
 
 (i) Harrison v. Pennell, 6 Weekly 
 
 Rep. 712. 
 
 (/,) 12 & 13 Vict. c. 106, s. 205. 
 (Z) Ibid. s. 204. 
 
 {m) Ibid. s. 257 ; and ante, p. 6. 
 (n) Ibid. s. 182.
 
 JUDGMENT DEBTOR A BANKRUPT OR INSOLVENT. 85 
 
 impressed with the necessity of maintaining to the fullest extent, 
 which may be consistent with justice, the exclusive Juris- 
 diction of the Bankrupt Laws, in cases committed to their 
 Jurisdiction (o). 
 
 The particular case in which the V ice-Chancellor had so con- 
 sidered the subject was one {p), in which the plaintiff", claiming 
 to be admitted as Creditor under the fiat, in respect of breaches 
 of trust by the bankrupt, sought to restrain the assignees from 
 paying a dividend ; but the general principles which induced the 
 Vice-Chancellor to refuse the application seem to extend to the 
 case before us, of a Judgment Creditor seeking to enforce his 
 remedies in Equity against the assignees. 
 
 Sir J. Wigram has left it doubtful (q) whether, after the bank- 
 ruptcy or insolvency of the Debtor, any Creditor, other than the 
 assignees, can in ordinary cases sustain a suit in Equity ; e. g. to 
 set aside a prior voluntary conveyance of land under 13 Eliz. c. 
 5 ; but it has been laid down by Lord Cottenham (r), that where Lord Cotten- 
 the insolvency occurs before the suit in Equity, the Court '^^™'^- 
 of Chancery will not entertain suits filed by individual creditors 
 of the insolvent;— and the principle is the same in Bank- 
 ruptcy (s) ;— though, where the suit was instituted before the 
 Insolvency, it will {t)\ e.g. to set aside a voluntary conveyance. 
 At Law such a voluntary conveyance is void against the Bank- 
 ruptcy assignees, who may bring ejectment for it (m). 
 
 " The Bankrupt Acts may be represented as enabling the Com- 
 missioners to distribute the bankrupt's estate. But what shall be 
 deemed his estate, is matter for preliminary inquiry ; that is left 
 for adjudication between the assignees in Bankruptcy, and those 
 against whom they may assert a claim. And, undoubtedly, ques- 
 tions may arise between the assignees and strangers to the peti- 
 tion for adjudication, which the Law leaves to be decided by 
 the Courts of ordinary Jurisdiction. In many cases it may be 
 practically impossible to arrive at a safe conclusion upon the 
 question of debt or no debt, upon a petition of Bankruptcy, or 
 by any means except a bill in Equity" {v). 
 
 Insolvency means, in legal language, a general inability to pay insolvency, 
 
 •' what. 
 
 (o) Preston v. Wilson, 5 Hare, 185. {t) Goldsmith v. Russell, 5 De G., 
 
 {p) Thompson v. Derham, 1 Hare, M. & G. 553. 
 
 358. (?0 Doe (/. Grimsby v. Ball, 11 M. & 
 
 {q) Lister v. Turner, 5 Hare, 281. \V. 531. 
 
 (r) Heath v. Chadwick, 2 Phil. 652. {v) Thompson v. Durham, 1 Hare, 
 
 {s) Rochfort V. Battersby, 2 H. L. 373. 
 Cas. 408.
 
 86 JUDGMENTS BY AND AGAINST ONE. 
 
 debts (w), and not the taking the benefit of any of the Insolvent 
 Acts (x). 
 *^12^° ^' ^^ ^^^^ been ah-eady (y) remarked that, unless in cases of fraud, 
 
 a Debtor's person cannot be taken in execution for a debt not 
 exceeding 201., exclusive of costs. It is singular, that the Act 
 containing that enactment should not have repealed an Act of 
 48 Geo. 3 {z), which it has in effect superseded, but which is still 
 Law, and which it therefoi'e is here necessary to refer to, even 
 though only for the purpose of pointing out the necessity of its 
 formal repeal. It provides, that a Debtor who has lain twelve 
 months in prison in execution on a Judgment of any Court, where 
 the debt, exclusive of costs, does not exceed 20L, may, upon 
 application to any Westminster Common Law Court in Terra 
 time, obtain his discharge. 
 Benefit of the The "benefit" of these Acts was, prior to 1842, confined to 
 one who, not being a trader, and being in prison for debt, took 
 steps for his discharge from imprisonment. 
 
 But the 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, have ex- 
 tended that *' benefit" to persons at large, and even to traders 
 owing debts under 300^.; provided such debts were not con- 
 tracted by fraud or breach of trust, or by any criminal prose- 
 cution, or were not Judgments in any revenue proceedings, or in 
 actions for cj^im. con., breach of promise, slander, seduction, 
 assault, battery, malicious arrest, malicious suing out a petition 
 for adjudication of Bankruptcy, or malicious trespass ; and pro- 
 vided that the debts were contracted with a reasonable ex- 
 pectation of being able to pay them (a) ; and the " benefit" of the 
 Acts may accordingly now be defined as the Discharge or Pro- 
 tection, as the case may be, of the Debtor from imprisonment. 
 
 The benefit of 1 & 2 Vict. c. 1 10, relating only to imprisoned 
 non-trader Debtors, and which consists therefore in their dis- 
 charge, may be obtained (b) by the Debtor filing a Petition for 
 his Discharge. And an execution Creditor, who has taken the 
 Debtor's body in execution, may, after twenty-one days there- 
 from, also file a petition to the same effect (c). 
 
 A trader, who petitions under the arrangement clauses in the 
 
 (w) Smith's Mercantile Law, p. 725. {z) Sect. 123. 
 
 (x) These acts are, 48 Geo. 3, c. 123; (a) 5 & 6 Vict. c. 116, s 4; 7 & 8 
 
 1 & 2 Vict. c. 110; 5 & 6 Vict. c. 116; Vict. c. 96, s. 24. 
 7 & 8 Vict. c. 96 ; 10 & 11 Vict. c. 102. (6) 1 & 2 Vict. c. 110, s. 35. 
 
 (y) Ante, p. 29. (c) Ibid. s. 36.
 
 JUDGMENT DEBTOR A BANKRUPT OR INSOLVENT. 87 
 
 Bankruptcy Act, does not thereby so completely submit himself 
 to the Bankruptcy Court, as to deprive him of all disposing 
 power over his estate. His Judgment Creditor, therefore, has 
 been held entitled to a charge on his lands, which, subsequently 
 to the protection order, he has conveyed to trustees for the 
 benefit of certain Creditors, including the Judgment Creditor, 
 who did not however execute the deed {d). 
 
 The effect of Insolvency then, or rather of taking the benefit Effect of In- 
 of the Insolvent Debtors Acts, upon a Judgment Creditor's j^g^l remedies. 
 legal and equitable remedies, is this : 
 
 1. As to Debtors within 1 & 2 Vict. c. 110. i & 2 Vict. 
 
 As against the Debtor's personalty in possession, if the writ 
 has been delivered to the Sheriff before, though execution has 
 not been perfected by seizure and sale until after, the vesting 
 order, it is good against the other Creditors ; provided that the 
 Judgment be an adverse one (e). 
 
 But if obtained on a warrant of attorney or cognovit, the 
 Creditor loses his preference, and must come in under the In- 
 solvency (/). 
 
 The Sheriff may extend the Debtor's realty upon such a 
 Judgment, either after or before the vesting order {y). 
 
 The Judgment Creditor, however, will not be entitled to 
 priority, where he has registered subsequently to the vesting 
 order {h). 
 
 Along with his petition for discharge must be filed a schedule 
 of all his debts : and his assignees become Judgment creditors — 
 or rather creditors by Recognizance — against any property 
 acquired by him after his discharge, by virtue of the warrant of 
 attorney, to the amount of his unsatisfied scheduled debts, re- 
 quired to be executed by him at the time of his discharge {i) ; 
 but they must ejiter up judgment on it to perfect their title (li). 
 The vesting order, which vests in the Provisional assignee all the 
 real and personal estate of the Insolvent without conveyance or 
 assignment (Z), is made by the Court on the filing of the Insol- 
 
 {d) Southern v. Sidney, 3 Jur., N. S. 155 ; and ante, p. 28. 
 
 1239. (0 1 & 2 Vict. c. 110, s. 87. For the 
 
 (e) Woodland v. Fuller, 11 Ad. & difference between a judgment and re- 
 
 Ell. 859. cognizance, post. Part II. 
 
 (/) 1 & 2 Vict. c. 110, s. 61. (/f) Holsgrave v. Hedges, 3 Drew. 
 
 {g) Hotham v. Somerville, 9 Beav. 75. 
 
 G3. (/) 1 & 2 Vict. c. no, s. 37. 
 
 {h) Lee V. Green, 6 De G., M. & G.
 
 JUDGMENTS BY AND AGAINST ONE. 
 
 Discharged 
 Debtor. 
 
 Protection 
 Acts : 5 & 6 
 Vict. c. 116; 
 7 & 8 Vict. 
 C.96. 
 
 vent's or Creditor's petition ; and may be said, with the above 
 exceptional preferences in favour of Judgment Creditors, to 
 constitute the Assignee a trustee for all creditors alike ; who 
 shall, out of the balances from time to time in the hands of the 
 assignees, receive under the direction of the Court dividends 
 according to the proportion of the proved or admitted debts (m). 
 
 Whether the case be one within 48 Geo. 3, c. 123, or I 8c 2 
 Vict. c. 110, when the Debtor has been discharged, he shall 
 not be taken or detained in execution on any Judgment for any 
 debt to which the adjudication extends (n) ; but the Judge of the 
 Court ft'om which such process has issued may (in the case 
 of Debtors within 1 & 2 Vict. c. 110) release him (o). 
 
 2. As to cases within the Protection Acts — and imprisoned 
 Debtors may take the benefit of them as well as of 1 & 2 Vict, 
 c. 110 {p), — the Insolvent's property vests in the Official assignee 
 on the presentation of his petition (fj) for protection, and in the 
 Creditors' assignees on their appointment (r). 
 
 It is presumed that the same is Law, with regard to execution 
 on Judgments against petitioners within these Acts perfected 
 by seizure and sale before the petition for protection, as in the 
 case of those within 1 & 2 Vict. c. 110 (s); and it is expressly 
 enacted, that as to Judgments entered up on warrants of attorney 
 or cognovits, whether for value or not, and as to bills of sale, 
 such Judgment Creditors or assignee by bill of sale shall not, 
 after the fihng of the petition, avail themselves of any execution 
 upon such Judgments (/) or of their bill of sale. But a Creditor 
 in possession of growing crops under a bill of sale is safe against 
 a subsequent execution Creditor {u) of the Insolvent. 
 
 Dividends shall be declared on balances in the hands of the 
 official assignee, — wlio alone is to receive the Insolvent's pro- 
 perty (.r), — amongst the Creditors named in the petitioner's sche- 
 dule, or who shall prove, in proportion to the debts so admitted 
 or proved ( y). 
 
 It is to be observed, that the Provisional assignee of Insolvents 
 within 1 & 2 Vict. c. 1 10, is now, and acts as, the Official as- 
 
 (m) Ibid. s. 62. 
 
 («) 48 Geo. 3, c. 12;"), s. 1, and 1 cS; 2 
 Vict. c. 110,8. 90. 
 
 (o) 1 & 2 Vict. c. 110, s. 90. 
 
 (p) 7 & 8 Vict. c. 96, s. 6. 
 
 (q) Macrae on Insolvency, p. 47 ; 5 
 & 6 Vict. c. 116, s. 1. 
 
 (r) 7 & 8 Vict. c. 96, s. 4. 
 (.s) Ante, p. 87. 
 (/) 7 & 8 Vict. c. 96, s. 21. 
 (ii) Congreve «,'. Evetts, 18 Jur., Exch. 
 6i)5. 
 
 (.r) 7 & 8 Vict. c. 96, s. 4. 
 (y) Ibid. s. 31.
 
 JUDGMENT DEBTOR A BANKRUPT OR INSOLVENT. 89 
 
 signee of Insolvents within the Protection Acts in London 
 Insolvencies, and the County Court clerks, now (z) Registrars, 
 are, and act as, such Official assignee in country cases {a). 
 
 It has been said in a favourite text book {b), speaking of 
 protection cases, that " under certain circumstances an Insolvent 
 may now, by recent Acts of Parliament" (viz. 5 8c 6 Vict, c, 116; 
 7 & 8 Vict. c. 96; and 10 & 11 Vict. c. 102), " obtam as com- 
 plete a discharge from his debts, as if he had become bankrupt." 
 This would lead the reader to the inference, that the property of 
 such Insolvents acquired after the final order for protection was 
 not liable to their scheduled debts. This, however, does not 
 appear to be so. The case is this:— the whole of such after- 
 acquired property vests absolutely in the Official and Creditors' 
 assignees (c) ; and the assignees shall be entitled to claim and 
 demand it from him, and it shall vest in them on filing a copy 
 of such claim, and they shall hold the same as fully as they held 
 the property transferred to them by the final order for protection, 
 {i. e. absolutely) ; but they shall not take possession of any such 
 property M'ithout the authority of the Commissioner or Court (c?). 
 
 As to Insolvents within 1 & 2 Vict. c. 110, we have already 
 seen, that their after-acquired property is caught by the warrant 
 of attorney they must execute. 
 
 As to the Creditor's equitable remedies, the same remarks Effect on 
 appear to apply, mutatis mutandis, as in the case of Bankrupts ; ^q^'^'jl^'e 
 the same principle applying to Bankruptcy as to Insolvency {e). 
 
 The Creditor has no preference given to him against land after 
 a year, in Insolvency, as he has in Bankruptcy ( /). So that 
 he would have no locus standi to enforce his lien, whether he 
 had issued legal execution or not ; and must come in therefore, 
 pai'i passu, with other Creditors in Insolvency. A voluntary con- 
 veyance is as void against Insolvency as against Bankruptcy 
 assignees, who may bring ejectment for it (^). 
 
 A scheduled Creditoi*, — who is a Creditor by recognizance, — 
 has indeed been allowed to file a Creditor's suit, after the Debtor's 
 death, against his after-acquired property, without leave of the 
 Insolvency Court (A). But the Court of Chancery, in the case 
 
 (z) 19 & 20 Vict. c. 108, s. 8. Cases, 408. 
 
 (a) 10 & 11 Vict. c. 102, s. 5. (/) Ante, p. 83. 
 
 (?;) Wms. P. P. 138. (g) Doe d. Grimsby v. Ball, II M. & 
 
 (c) 5 & 6 Vict. c. IKi, s. 7. W. 531. 
 
 {d) Ibid. s. 9. {h) Ward v. Painter, 2 Beav. 85. 
 
 (e) Rochfort v. Battersby, 2 H. of L.
 
 90 JUDGMENTS BY AND AGAINST ONE. 
 
 referred to, gave no opinion as to its Jurisdiction during the life. 
 And it is to be borne in mind, that Sir L. Shadwell has said, 
 that he never recollected any case in which the assignees of a 
 Bankrupt or Insolvent had raised the objection to the Juris- 
 diction of the Court of Chancery, e. g. demurred for vrant of 
 Equity, and this Court has upheld its Jurisdiction against 
 him (i). 
 
 However, a purchaser for value of the surplus of an Insolvent's 
 estate may, notwithstanding any subsequent Insolvency, file a 
 Bill in Chancery for a declaration of his rights (k). The case 
 last referred to left it undecided, whether, in the opinion of the 
 Lords Justices, the Insolvency Court has a concurrent juris- 
 diction with Chancery in such a matter or not. And Vice- 
 Chancellor Stuart seems of opinion, it has not (/). But the 
 Court of Queen's Bench has decided that it has ; at least, that 
 the power of the Commissioners is not ministerial only, but 
 judicial {in). That decision, however, Vice-Chancellor Stuart 
 takes as meaning no more than that the Insolvent Debtors Court 
 has a power to adjudicate upon adverse claims to the Insolvent's 
 property, for the purpose of paying his Creditors {n). 
 
 The devisee of an Insolvent Debtor within the Protection 
 Acts, who has obtained a full release from his Creditors, and to 
 whom the official assignee has conveyed real estate, may sue in 
 respect of it, and for a declaration of his rights thereto, without 
 an order being first obtained from the Insolvent Courts, revesting 
 the estate in the Insolvent Debtor (o). But neither the In- 
 solvent Debtor, nor a purchaser from him, can by proceedings in 
 Chancery interrupt the title of the Insolvency assignee to a fund 
 in Court, without showing that it will be in danger if the 
 assignee be permitted to recover it, and that there is some im- 
 pediment in the way of the removal of the assignee by the 
 Insolvency Court (p). 
 
 After what has been said of the views of the Chancery Bench 
 against a Creditor pursuing his remedies in Equity after the 
 Bankruptcy or Insolvency of his Debtor, it is unnecessary to go 
 into the question of Parties on such occasions. 
 
 (i) Yewens v. Robinson, 11 Sim. 120. («) 4 Jur., N. S. 1075. 
 
 (/() Cook V. Sturgis, 7 W. R. 678. (") Wearing v. Ellis, 6 De G., M. & 
 
 (/) Cook V. Sturgis, 4 Jur., N. S. G. 596. 
 
 jQy^_ {p) Dyson v. Hornby, 7 De G., M. 
 
 (w) Reg. v. Law, 7 Ell. & Bl. 3CG. & G. 1.
 
 ( 91 ) 
 
 Section 12. 
 Judgments by Bankrupts or Insolvents. 
 
 Banla-uptcy. \ Jmolvejicy. . , . ^ ^ ^ „_ ^,- 
 
 EJfcct of, on Le^al Remedies. Cases ivithm 1 4- 2 l^ict. c. IIU. 
 
 On Equitable Remedies. \ Cases tvithin the Protection Jets. 
 
 Where the sole Creditor becomes Bankrupt after Judgment Effect of Bank- 
 
 ,.11 ^. ruptcy on legal 
 
 obtained by him, his right to issue legal execution passes on, remedies. 
 and by their appointment, without more, to his assignees : in 
 the first place, to his Official assignee solely (o), until the appoint- 
 ment of his Trade assignees ; and, on their appointment, to them 
 jointly with the Official assignee, it is presumed (;j) : and exe- 
 cution is the same as in ordinary cases (g). But it will be such 
 a " prosecution of an action" as requires the leave of the Court 
 of Bankruptcy (r),— for it cannot be had without application to 
 the Court, which is his suit (s) ; but the Judgment will not re- 
 quire to be revived by writ of revivor or suggestion under the 
 Common Law Procedure Act, 1852, s. 129, since the assignees 
 may proceed to recover the same (though in the Bankrupt's 
 name), as the Bankrupt himself might have done (0 ; and of 
 course he might recover it in the ordinary way. 
 
 His ri^rht to sue in Equity is extinguished by his Bankruptcy, On equitable 
 
 * , , . 1 i. i-i 4- remedies. 
 
 and passes in the same way to the assignees : but they must 
 before suing obtain leave of the Court of Bankruptcy (m). When 
 such leave has been obtained, their rights and remedies are the 
 same as the Bankrupt's would have been, had he not become 
 Bankrupt {x). 
 
 Bankruptcy during the suit does not abate it{y): but the 
 assignees may obtain an order to the effect of the usual Supple- 
 mental Decree, without filing a Supplemental Bill {z). Suits by 
 them do not abate by their death or removal (a). 
 
 Where a sole Creditor becomes Insolvent after Judgment insolvency, 
 obtained by him, his right to issue execution passes, if he be a Effect of, on 
 
 uuittiiivvi >^j > , . . , cases vvitlnn 
 
 Debtor within 1 & 2 Vict., to the Provisional assignee in the 1 & 2 Vict. 
 
 (0) 12 & 13 Vict. c. 106, s. 40. (0 12 & 13 Vict. c. 106, s. 141. 
 
 (p) Ibid. s. 141 ; Cannan v. South- (m) Ibid. s. 153. 
 
 Eastern Railway Company, 21 L. J., (x) Ibid. s. 141. 
 
 Exch. 257. (y) Booth v. Smith, 5 Sim. 639. 
 
 (q) Archb. Pr. 1182. (x) 15 & 16 Vict. c. 86, s. 52. 
 
 (r) 12 & 13 Vict. c. 106, s. 153. (a) 12 & 13 Vict. c. 106, s. 157. 
 
 (s) Bac. Abr. Release, I. (2).
 
 92 JUDGMENTS BY AND AGAINST ONE. 
 
 first instance (b), and on the appointment of the Ci*editors' 
 assignees, to them solely, it would seem (c). 
 
 The provisional assignee alone may, accordingly, before their 
 appointment, with leave of the Insolvency Court (rf), sue in 
 Equity on the Judgment, or proceed to issue execution at Law 
 for it (if such a proceeding be, as it is presumed it is, a "recover- 
 ing, obtaining or enforcing a debt" within the 1 & 2 Vict, (e) ) 
 without suing out a writ of revivor or " entering a suggestion." 
 
 The Insolvent cannot sue in Equity for property which passed 
 to his assignees on the mere allegation of collusion on their 
 part(/). 
 
 The Creditors' assignees alone may, after their appointment, 
 sue in their own names for the recovering, obtaining and enforcing 
 the rights of the Insolvent, and may compound debts owing to 
 him ; but no such compositions or suits in Equity shall be made 
 or had without the leave of the Court or a Commissioner, and 
 of a majority in value of the Creditors {g). Each Creditor's 
 assignee should be made a party, but it will be enough (if he 
 refuse) to make him a defendant (^). Suits commenced before 
 the Insolvency do not abate thereby ; but the assignees must 
 obtain the order to the effect of the usual Supplemental 
 Decree (i). 
 
 Neither do suits abate by the death or removal of the 
 assignees {j). 
 On cases In cases within the Protection Acts, the provisional assignee 
 
 within I'ro- Countv Court registrars (A), as the case may be, would seem, 
 
 tection Acts. - ° • i i i 
 
 before the appointment of Creditors assignees, to have the sole 
 ri<yht to issue legal execution or commence or continue a suit 
 in Equity upon it ; but upon the appointment of such assignees 
 he or they should be joined with them(Z) ; the previous consent 
 of a majority in value of the Creditors being in both cases 
 necessary (m). 
 
 Suits commenced before the Insolvency do not abate by it ; but 
 the assignees must be brought before the Court {n) ; neither do 
 suits abate by the death or removal of the assignees (o). 
 
 (6) 1 & 2 Vict. c. no, s. 37. (0 Ayckb. Ch. Pr. 321. 
 
 (c) Ibid. s. 45. ij) 1 & 2 Vict. c. 110, s. 53. 
 
 (rf) Ibid. s. 42. (/f) 19 & 20 Vict. c. 108, s. 8 ; 10 & 
 (e) Ibid.; Bac. Abr. "Release,"I.(2). 11 Vict. c. 102, s. 5. 
 
 (/) Major r. Aukland, 3 Hare, 77; (/) 7 & 8 Vict. c. 96, s. 13. 
 
 Heath v. Chadwick, 2 Phill. 651. (?«) Ibid. 
 
 (5) 1 & 2 Vict. c. 110, s. 51. (n) Ayckb. Ch. Pr. 321. 
 
 {h) Wilkins v. Fry, 1 Mer. 262. (0) 7 & 8 Vict. c. 96, s. 1.
 
 JUDGMENTS BY BANKRUPTS OR INSOLVENTS. 93 
 
 All the Assignees who, according to the distinctions above 
 pointed out, should be parties, must be joined either as plaintiffs 
 or defendants (/?). 
 
 We must not conclude this section without adverting to the Probable 
 probability of a change of some portions of this branch of the "^ ^"°^ ° ^^* 
 Law of Debtor and Creditor. Such changes, as is well known, 
 underwent much discussion last Session. The present Govern- 
 ment has pledged itself to them. The assimilation of the Law of 
 Bankruptcy and Insolvency will probably be their leading feature, 
 and a reduction of the complicated machinery and expensive 
 staff of those Courts will hold a conspicuous, though to the 
 Jurist a less interesting, place in them. 
 
 (p) Wilkins v. Fry, 1 Mer. 262. 
 
 g7
 
 ( 94 ) 
 
 CHAPTER IT. 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 Section 1. 
 Judgments against Several {not Partners) 
 
 Husband and Wife. 
 (i.) At Law. 
 
 During Coverture. 
 
 Judgment dum sola. 
 Judgment against 
 Wife. 
 After the Death of either. 
 (ii.) In Equity. 
 
 the 
 
 2. Joint Judgment Debtors {not Husband 
 and Wife). 
 (i.) During Joint Lives. 
 At Law. 
 In Eqtiity. 
 
 Contribution. 
 (ii.) After Death of One. 
 Realty. 
 
 At Law. 
 In Equity. 
 Personalty. 
 
 At Law and in Equity. 
 
 (!•) 
 
 I. If Judgment, strictly so called, be obtained against a feme 
 Husband and sole, but she marry before execution or suit in Equity upon it, 
 ^^ ^' the Creditor must, if he proceed at Law for his remedy upon 
 
 Judgment dum ^^ Judgment, bring an action against the husband and wife 
 upon it (a). Having in such action obtained a joint Judgment 
 against both, the Creditor may have a joint legal execution. 
 Under such an execution the wife's separate estate, unless 
 actually vested in trustees for her, will be liable : for where 
 they are not interposed, the husband will not, at Law, be 
 deemed a trustee for her (b). Nor will Equity restrain such an 
 execution, though it would, if the debt had been the husband's 
 only (c). 
 
 Since an action against a feme sole does not abate by her 
 marriage {d), the Creditor may proceed to Judgment and exe- 
 cution against her alone, or (by suggestion and writ of revivor) 
 against husband and wife (e), or (by scire facias, to be proceeded 
 upon as a writ of revivor) against the husband alone (/). 
 
 If the wife or husband die, either before a Judgment against 
 
 Judgment 
 against wife 
 
 After death of 
 either. 
 
 (a) Morris v. Coates, 25 L. T. 176. 
 
 (6) Archb. Pr. 605. 
 
 (r) Newlands v. Paynter, 4 M. & C. 
 408. 
 
 {d) C. L.P. Act, 1852, s. 141. 
 
 (e) Ibid. 
 
 (/) Ibid. s. 132.
 
 JUDGMENTS AGAINST SEVERAL (nOT PARTNERS). 95 
 
 her after marriage has been revived against liim, or before Judg- 
 ment has been obtained against both in an action on a Judgment 
 against her dum sola, the wife's estate remains solely liable, and 
 the husband, if he be the survivor, is liable only to the extent 
 to which he has personal assets of the wife as her adminis- 
 trator {g). 
 
 If the wife or husband die, either after a Judgment against 
 her after marriage has been revived against him, or after a Judg- 
 ment has been obtained against both in an action on a Judgment 
 dum sola, — the husband's estate is liable as for his own debt. It 
 would seem that a Judgment against the wife after marriage 
 must be revived at Law against the husband — and that a joint 
 Judgement against both must be obtained in an action on a Judg- 
 ment against her dum sola — before the Creditor can proceed in 
 Equity to obtain the benefit of his Judgment : for in both cases 
 the husband would be a necessary party in Equity, even though 
 the Creditor choose to go against the wife's separate estate only 
 (unless, perhaps, it be actually vested in(^) trustees). 
 
 A suit does not abate by marriage in Equity any more than 
 an action does at Law, though the husband must be named in all 
 subsequent proceedings (i). 
 
 2. Let us now suppose a joint Judgment against two or more, joint Judg- 
 neither partners, nor husband and wife, as against joint cove- '^^"' Debtors, 
 nantors. Here, during all the joint lives, the separate estate and wife, 
 of all, whether real or personal {ex hypothesi there is no joint During joint 
 estate) is, as in the case of partners, liable at Law to the debt ^^^^' 
 (though their realty must be extended equally (k)), without any 
 right in the Debtor, whose separate personalty has been pro- 
 ceeded against, to contribution, at Law, from his co-Debtors. 
 
 But, in Equity, though his separate estate is equally as liable Contribution, 
 to the Creditor as at Law to pay the debt, he will be entitled to 
 contribution. Such an Equity to contribution arises, whether 
 the debt has been wholly discharged at Law out of the separate 
 personalty, or is sought to be wholly discharged in Equity out 
 of the separate realty or personalty, and attaches both to the 
 co-Debtor's realty and personalty, for " if several persons are 
 indebted, and one makes the payment, the Creditor is bound 
 by conscience, if not by contract, to give to the party paying 
 the debt all his remedies against the other Debtors (Z). Since 
 
 (g) Williams's P. P. 309 (3rd edit.). (k) Sir Wm. Herbert's case, 3 Co. 
 
 (/i) Calvert on Parties, 410. Rep. Part 3, p. 42. 
 
 (t; Ayckb. Ch. Pr. 321. {I) Stirling v. Forrester, 3 Bligh,590. 
 
 g8 ^
 
 96 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 After death of 
 one. 
 
 the Judgment is joint and several in effect, as binding the separate 
 realty, and entitling the Creditor to issue execution against the 
 separate personalty, it may be contended that it is a " joint 
 and several demand " in Equity entitling him to proceed {m) 
 against one or more only of the Debtors ; if he does so proceed, 
 the Debtor solely proceeded against must file a separate bill 
 against his co-Debtors for contribution. 
 
 The separate realty — not chattels real — of a deceased joint 
 Judgment Debtor will, at Law, still remain liable to the debt ; 
 for it binds realty from the date of the entry of the Judg- 
 ment (n), but the Creditor cannot proceed against the land, 
 either of the deceased or of the survivor, without charging the 
 land of both equally, which he must do by suing out a sci. fa. 
 against the survivor, and against the heir and terre-tenants of 
 deceased (o), and an elegit against the lands of the survivor, heir 
 and terre-tenants. By terre-tenants are meant the owners of the 
 fee ip). 
 <$■«■. /(J. what. ^ sci. fa. is a judicial writ, issuable out of the Court in which 
 
 the Judgment was obtained, commanding the party to whom it 
 is. addressed to "show cause why" the party issuing it should 
 not have the advantage of the record. It is considered in Law 
 as an action {q). 
 
 If the joint Judgment be a "joint and several demand," as it 
 would seem to be, at least against land, and the Creditor goes 
 into Equity against the deceased's real estate, for the whole of 
 his debt, the survivor's estate will be liable to contribute his 
 proportionate part, and so ^ converso, if the survivor's estate be 
 proceeded against ; as during their joint lives. 
 
 But as against the personalty, at Law, the whole Judgment 
 debt survives, and must be recovered against the survivor, and 
 the deceased's estate, real or personal, is wholly discharged (r); 
 and Equity would seem to follow Law in this respect. 
 
 (to) 7th Consol. Ord. r. 2. {p) Ibid. p. 9, n. (9). 
 
 (h) 1 & 2 Vict, c, 110,s. 11. \q) Archb. Pr. 1076. 
 
 (o) 2 Saund. Rep. by Williams, p. 51. (r) Wms. P. P. 247.
 
 judgments against un-incorporate partnerships. 97 
 
 Section 2. 
 Judgments against Un-incorporate Partnerships. 
 
 Before Dissolution. l (ii. ) Judgment Creditors of Partner. 
 
 Definition of Partnership, I At Law. 
 
 "Joint" and '^ Separate" Creditors. Joint Realty. 
 
 " Joint" and " Separate" Estate. \ Joint Personalty. 
 
 (i.) Judgment Creditors of Partner 
 ship. 
 At Law. 
 
 Joint Realty. 
 Separate Realty. 
 Joint and Separate Per 
 sonalty. 
 In Equity. 
 
 Joint Estate. 
 Separate Estate. 
 
 In Equity. 
 2. Upon Dissolution. 
 
 Causes of, other than Bankruptcy or 
 
 Insolvency. 
 Equities of Creditors. 
 Dissolution by Bankruptcy. 
 
 Separate Bankruptcy. 
 
 .Joint Bankruptcy. 
 Dissolution by Insolvency of Partner. 
 
 Of Partner in Trade. 
 
 Of Partner not in Trade. 
 
 I PROPOSE to consider this branch of the subject under three (!•). 
 
 heads ; first, as it regards partnerships (whether in trade or not) lution. 
 wholly un-incorporate ; that is, ordinary Common Law partner- 
 ships ; secondly, partnerships Quasi-Corporate, or corporate for 
 some, but not all, purposes ; and thirdly, partnerships wholly 
 Corporate, or complete corporations. 
 
 And these three classes of partnerships I propose further to 
 consider : 
 
 1. During the period anterior to their dissolution, or to that 
 
 which is equivalent to their dissolution. 
 
 2. During the period ensuing upon their dissolution, or that 
 
 which is equivalent thereto. 
 
 In these days when so much of commercial enterprize is 
 effected by means of joint association, it is hardly necessary to 
 remark that the cases which we have hitherto principally con- 
 sidered, viz. of a sole Debtor, form a very small class indeed 
 when compared with those to which our attention is now to be 
 directed. 
 
 It should, however, be first stated what a partnership is. It Definition of 
 is not essential to its definition, that its business should be a P^''^"^'^^ "P- 
 trade, i. e. that the partners should be subject to the Bankrupt 
 Laws; farmers and attornies may be partners. Till 1844, it 
 would seem, there was no limit, except in the case of Banks, to 
 the number of persons who might establish a private partner- 
 ship (y). However now, unless they come within the exceptions 
 
 (y) Collyer on Partnership, 8.
 
 98 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 " Joint" and 
 " separate" 
 Creditors. 
 
 " Joint" and 
 " separate" 
 estate. 
 
 (i.) 
 Joint Judg- 
 ment Creditors. 
 
 At Law. 
 
 mentioned (z) in the Joint Stock Act, 1857, or are Insurance 
 Companies, they cannot, if trade partners/tips, exceed twenty. 
 
 The essence of a partnership seems to be the contribution by 
 the partners (though not necessarily in equal shares) of capital 
 or its worth, and their engaging in a common undertaking on a 
 joint account (though not necessarily profiting in it in equal 
 shares). Community of profit is the criterion of partnership (a). 
 
 And firstly, of ordinary Common Law partnerships wholly 
 un-incorporate : among which, partnerships of seven and under 
 twenty, having the power to register under the Joint Stock Acts, 
 1856, 1857, but not availing themselves of it, are to be reckoned. 
 
 For the sake of perspicacity we must further subdivide Judg- 
 ment Creditors' rights against such Debtors, and consider sepa- 
 rately those of "joint" and "separate" Judgment Creditors. 
 
 I would here in passing observe upon the misnomer by which 
 "joint" and " separate" Creditors are in legal language intended 
 to designate respectively Creditors of a firm and of an individual. 
 It is true that the term is professionally so well understood that 
 no inconvenience is likely to arise from its retention ; still, looking 
 at scientific accuracy, it is no less an erroneous one ; for the terms 
 evidently refer, philologically speaking, to the character of the 
 Creditor, not of the Debtor ; representing to us the idea of one 
 who is a sole Creditor, or a co-Creditor with others, not of one 
 to whom a debt is due from one or more. I shall, how^ever, 
 employ the usual terminology, to avoid obscurity, throughout 
 the following statement of the Law. 
 
 The Creditors whom I shall here speak of are strangers, not 
 members of the firm (6). 
 
 The division of the property, moreover, out of which the 
 Creditor may be paid, into that of the partnership or of the 
 partners, or, as it is technically termed, into the "joint" and 
 "separate" estate, must be also carefully distinguished in the 
 following inquiries. 
 
 Taking then, first, the period before dissolution, whilst the 
 partnership is still in operation and vigour. At Law a Judgment 
 Creditor of the firm may extend the joint realty, including lease- 
 holds (c), in the same way as if the Debtor were a sole Debtor {d), 
 but not unless he has first proceeded under the elegit against 
 
 (z) 20 & 21 Vict. c. 14, s. 3 (ex- 
 ceptions 2, 3). 
 
 (a) Smith's Merc. Law, 19, 5th ed. 
 (6) As to partners creditors of the 
 
 firni; post, Part I., Book IL 
 
 (c) Ex parte Williams, 11 Ves. 4;(a). 
 (rf) 1 & 2 Vict. c. no, s. 121.
 
 JUDGMENTS AGAINST UN-INCORPORATE PARTNERSHIPS. 
 
 99 
 
 the partnership personalty. Realty purchased with the partner- ^^5^^";^^^^ 
 ship capital for partnership purposes is not at Law, as it is in 
 Equity (e) where the partnership is a trade one, deemed personal 
 estate. The separate realty of any partner, including lease- v. 
 holds, is also extendible (/), and it would appear optional to 3y*/^ 
 resort to it before the joint realty ; but though the goods of one 
 may be taken on an elegit against two, the lands of both must be 
 taken (g); and, as it would appear, the Sheriff should resort first, 
 under the elegit, to the separate personalty, just as the realty of a 
 sole Debtor should not be extended until his personalty be in- 
 sufficient. 
 
 The joint and separate personalty are liable under aji.fa. in jg;j,t'';nd 
 the same way as if the Debtor had been a sole Debtor, and each separate per- 
 may be resorted to either before or after the other (h). A part- ^""^ '^* 
 ner, whose separate personalty has been exclusively resorted to 
 at Law, has no redress there. 
 
 In Equity the joint realty, if purchased with partnership capital I" Equity. 
 
 for partnership trade purposes, will be deemed joint personalty, 
 
 and will, with the rest of the joint personalty properly so called, joint estate. 
 
 including leaseholds, be liable as in the case of sole Debtors. 
 
 The Joint Creditors possess the same remedies against the 
 
 Separate estate, real or personal, as separate Creditors would : »• 
 
 , „ • • 1 • 1 1 • • X 'U separate realty 
 
 except that Equity, wishmg to do complete justice uno actu, will, and personalty. 
 
 at least after dissolution, issue inquiries for the separate Cre- 
 ditors, and order their payment, of whatever rank, first, out of 
 the separate estate : and will also, under 7th Consol. Ord. r. 2, 
 allow the plaintiff to sue some without making all parties. 
 
 As to separate Judgment Creditors of a partner, they may, at ("•) 
 Law, sue out and execute execution against the joint realty (i), ment Creditors, 
 including leaseholds, (and that before resorting to the separate At Law. 
 realty,) subject to the right of any non-Debtor partner to an . . «• 
 
 T^ .iT^, 1 T- • joint realty. 
 
 Account in Equity against the Debtor, and to an Injunction 
 to restrain the Sheriff and Creditor from selling or extend- 
 ing {k). 
 
 As regards the joint personalty, the separate Creditors may . »• 
 issue execution against it(/) before resorting to separate per- sonalty. 
 
 (e) 2 Spence, 209 ; Crawshay v. Qi) Ibid. 
 
 Maule, 1 Sw. 508. (i) Story on Partnership (4tli ed.), 
 
 (/) CoUyer on Partnership, 558 (2nd s. 261. 
 
 edit.). (A^) Ibid. s. 264, and Fraser v. Ker- 
 
 {g) Ante, p. 50 ; Haddrick v. Heslop, shaw, 2 Kay & Joluison, 496. 
 
 12 Q. B. 287. (0 Archb. Pr. 606. 
 
 H 2.
 
 100 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 In Equity. 
 
 (2.) 
 After disso- 
 lution. 
 
 Causes of, 
 other than 
 Bankruptcy 
 and In- 
 solvency. 
 
 sohalty, subject, as in the case of realty, to an Account and 
 Injunction in Equity at the instance of the non-Debtor partner: 
 if they proceed by fi. fa., the Sheriff must seize all, but can sell 
 only a moiety [or whatever proportionate part the Debtor has 
 in it]. In practice he makes a bill of sale of the Debtor's 
 actual interest in it. And the non-Debtor partner and pur- 
 chaser hold as tenants in common {m) (if it be personalty in 
 possession). 
 
 In Equity the separate execution, or at least a sale under one, 
 works ipso facto a dissolution to the extent of the interest levied 
 on and sold in). 
 
 The rights and remedies of Judgment Creditors of partner- 
 ships after dissolution may now be considered. 
 
 And here, firstly, of their dissolution, otherwise than by Bank- 
 ruptcy or Insolvency. 
 
 A partnership may be dissolved, and that quoad omnes, by any 
 of the following circumstances ; — by the death of a partner 
 (unless the articles declare otherwise (o), or it be a mining part- 
 nership), by his outlawry, (civil or criminal) or attainder {p), by 
 a sale of partnership effects on a separate execution, by effluxion 
 of the time during which the partnership was intended by the 
 articles to continue {q), or by mutual consent before the expira- 
 tion of that time (r), or by the marriage of a female partner {s). 
 
 The particular rights and remedies of the Creditors, after the 
 dissolution by the death of one or more of the partners, will 
 (according to the plan we have laid down) be more conveniently 
 considered hereafter it). 
 
 All the above causes work a dissolution ipso facto on the hap- 
 pening of the events. 
 
 The decree of a Court of Equity is required to dissolve, and 
 is, therefore, a cause of dissolution (w), in the case of the 
 partnership turning out impracticable or hopelessly embarrassed, 
 or in consequence of the lunacy or insanity {v) or misconduct of 
 the partners: in such a case the dissolution dates from the 
 decree. 
 
 Yet, whatever the cause, the connection still subsists until the 
 
 (m) Holmes v. Mentz, 4 Ad. & Ell. 
 131. 
 
 (n) Story on Partnership, ss. 311, 
 312. 
 
 (o) Bisset on Partnership, 83. 
 
 (p) Ibid. 87. 
 
 (?) Ibid. 84. 
 
 (r) Smith's Merc. Law, 15. 
 
 (s) Bisset on Partnersliip, 84. 
 
 (/) Post, Part II. 
 
 (m) Bisset, 85. 
 
 (i) Anon., 2 Kay & J. 446.
 
 JUDGMENTS AGAINST UN-INCORPORATE PARTNERSHIPS. 101 
 
 concern is wound up, and there remains a community of interests, 
 which makes it necessary that what was partnership property 
 before shall continue such for the purpose of distribution {x). 
 
 Dissolution, however, like contribution, is rather an Equitable 
 than a Legal term. 
 
 Upon the happening then of any event which ipso facto Equities of 
 , « 1- • T-i -i. i. J' 1 Creditors, 
 
 dissolves, or is a ground for an application to Equity to dissolve, 
 
 the partnership, an Equity arises to the partnership Creditors, 
 including Judgment Creditors, if they have not already sued for 
 their debts in Equity, to have the estate administered; this 
 Equity is said to be " worked out " through the equities of the 
 partners (y) themselves inter se, and in a Court of Equity only. 
 The Creditors themselves (not even the Judgment Creditors) 
 cannot put in force the remedy, viz. a bill to wind up the con- 
 cern, and have the general accounts taken, though their rights, 
 and those of the separate Creditors, will be accelerated by the 
 dissolution. The partners only can be plaintiffs in such a suit. 
 An account will at their instance be taken (z) of all the joint 
 debts, and, if necessary, of the separate debts also, preceded by 
 a declaration of dissolution, where the cause of, is not ipso facto 
 a, dissolution ; the joint Judgment Creditors will then be paid 
 preferentially to the other joint Creditors out of the joint assets, 
 and, inter se, according to their dates. 
 
 If the joint assets are insufficient, then the joint Creditors will 
 be paid — Judgments still preferentially — out of the separate 
 assets, if there be a surplus of them after the payment thereout 
 of all separate Creditors of whatever rank. If, on the other 
 hand, the joint assets are more than sufficient to pay the joint 
 debts, the same shall be applied to pay the separate (a) Cre- 
 ditors. 
 
 This is indeed the rule on the Bankruptcy of a partner, and 
 an analogous one would probably be observed in Equity (&), 
 in the cases we are considering ; for, for the most part, the same 
 considerations will apply in all causes of dissolution, whether by 
 voluntary consent, or by mere operation of Law, or by death or 
 by Bankruptcy, or the decree of a Court (c). 
 
 Debts originally separate may be converted into joint ones ; 
 and debts originally joint may have been converted into separate 
 
 (x) 2 Spence Eq. Jur. 212. cases there collected. 
 
 ly) Ibid. (6) Wms. P. P. 249. 
 
 (a) Skip V. Harwood, 2 Sw. 589. (c) Story on Partnership, 562. 
 
 (a) Bisset on Partnership, 114, and 
 
 h3
 
 102 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 Dissolution by 
 Bankruptcy. 
 
 Separate 
 Bankruptcy. 
 
 Mines. 
 
 ones. By the conversion of debts, is meant the changing of their 
 original character and obHgation, with the consent of the Cre- 
 ditor ; and this may be either with an intention to extinguish the 
 original debt, or merely to give the Creditor an additional security. 
 In order to produce any conversion at all, either with or without 
 an extinguishment, there must be sufiicient consideration, and a 
 deliberate and mutual assent of the Creditors and Debtors to 
 such conversion (d). 
 
 (i.) Where a partner becomes Bankrupt, this, though a complete 
 dissolution of the partnership, by mere operation of Law, quoad 
 omnes, from the date of the act of Bankruptcy (e), except in the 
 case of mining partnerships (/) — is not the Bankruptcy of the 
 partnership. 
 
 The property which passes to the assignees, and will have to 
 be administered in Bankruptcy {g) will, in such a case, be the 
 whole of the Bankrupt's separate estate, together with such part 
 of the joint estate as he himself would be entitled to {h). 
 Hence, it is necessary to take the account of the whole partner- 
 ship affairs, in order to ascertain what is to be administered (i) ; 
 and the Judgment Creditors of the Bankrupt will be paid out of 
 the separate estate thus ascertained ; and not only will an account 
 of the partnership debts be taken, but the partnership Judgment 
 Creditors will on their application be paid out of the joint estate, 
 for this is necessary to the due administration of justice between 
 the partners themselves {k). 
 
 In distributing die joint and separate estates, the same pre- 
 ferences will be given to joint and separate Judgment Creditors, 
 inter se, and against other Creditors, as in the case of a sole 
 Debtor bankrupt. 
 
 A Judgment Creditor of the partnership may be the petitioning 
 Creditor in a separate Bankruptcy. 
 
 Although on the Bankruptcy of one of several miners, the 
 partnership accounts will not be taken in Bankruptcy, they may 
 be taken, and the estate administered, in Equity, as in ordinary 
 partnerships on a dissolution otherwise than by Bankruptcy (/). 
 
 The power of the solvent partner in the case of the Bankruptcy 
 
 (d) Ibid. 58a 
 
 (e) Ibid. 314. 
 
 (/) Collyer on Partnership, 784, 786 
 (2nd ed.). 
 
 {g) Ord. SMarch, 1794. 
 Qi) Smith's Merc. Law, 611. 
 
 (t) Ibid. 
 
 {k) Story on Partnership, s. 361 ; 
 Button V. Morrison, 17 Ves. 209. 
 
 (/) Collyer on Partnership, 786 ; 
 ante, p. 101.
 
 JUDGMENTS AGAINST UN-INCORPORATE PARTNERSHIPS. 103 
 
 of his co-pai"tner is confined to the winding-up of the affairs, and 
 he cannot transfer his interest in the concern so as to expose 
 himself, although bona fide, to his Judgment Creditors. The 
 assignees of the bankrupt may, therefore, in such a case, obtain 
 an Injunction in Equity to restrain the Judgment Creditor who, 
 on an execution against the solvent partner, has purchased his 
 interest in the partnership goods, from delivering them to a 
 subsequent purchaser from him {m). 
 
 (ii.) Where the partnership is bankrupt. 
 
 If the partnership is bankrupt — which is a dissolution of the Joint Bank- 
 partnership and bankruptcy of all the partners — (the same acts ^^^ '^^' 
 make a partnership bankrupt as a sole trader (n),) — the joint 
 and separate estate passes to the assignees, and the administration 
 of all takes place in Bankruptcy (o), and an account of the whole 
 state of the partnership affairs must be taken, in order to ascer- 
 tain how the assets ai'e to be administered (p). 
 
 The rights of the Judgment Creditors of the firm against the 
 joint estate will be the same as those of a sole bankrupt. The 
 joint estate shall thereupon be applied, first, in payment of such 
 Judgment Creditors ; the separate, in payment of the separate 
 Creditors ; and the surplus of each respectively to the Creditors 
 remaining on the other (q). 
 
 A joint Creditor who has sued and recovered Judgment against 
 one partner, and has thereby elected to treat his debt as a 
 separate one, may not prove it in the bankruptcy of the partner- 
 ship as a partnership debt (r). 
 
 There can be no Insolvency of more than one insolvent, and, Dissolution by 
 therefore, not of a firm. But a partner may be insolvent, whether ^"solvency, 
 in trade or no, and his Insolvency is by mere operation of Law a 
 complete dissolution (s). The filing of a declaration of Insolvency Partner in 
 by a trader at large is, as has been said, an act of separate bank- 
 ruptcy, if followed by an adjudication of Bankruptcy within two 
 months (t ) (and the dissolution will date by relation from the act) ; 
 and so is his petition for a discharge from prison (u) (but not, it 
 would seem, for protection from arrest) : and the dissolution will 
 
 (m) Fraser v. Kershaw, 2 Kay & J. (r) Ex parte Higgins, In re Tyler, 6 
 
 496. W. R. 406. 
 
 (») Ante, p. 82. (s) Story on Partnership, 313. 
 
 (o) Collyer on Partnership, 577. (0 Ante, p. 82. 
 
 (p) Smith's Merc. Law, 611. (m) Ibid. 
 (q) Ibid.
 
 104 JUDGMENTS AGAINST SEVERAL. 
 
 date from the assignment (x) [i. e. now from the vesting order, 
 which is substituted for the assignment (?/). 
 Not in trade. If, not being in trade, he petition for his Discharge, or if, 
 
 whether being in trade or not, he petition for Protection, without 
 filing a declaration of Insolvency, his separate Judgment Creditors 
 may proceed with their remedies under the Insolvency, as if he 
 had been a sole Insolvent Debtor, as against his separate estate ; 
 but if they have proceeded to issue execution, or at least to sale 
 against his goods, before the petition, since that works a disso- 
 lution {z), distribution will take place in Equity, the joint Cre- 
 ditors being let in (through the equity of the solvent partners, to 
 file a bill in Equity) against the joint estate, which will be then 
 first applied to pay the joint debts ; the joint Creditors coming 
 in upon any balance of separate estate after payment of separate 
 Creditors. 
 
 The separate Creditors of course possess no remedy or right 
 against the separate estate of any non-Debtor partner. 
 
 (j-) Collyer on Partnership, 71. (2) Ante, p. 100. 
 
 {y) Smith's Merc. Law, 736.
 
 ( 105 ) 
 
 Section 3. 
 
 Judgments against Quasi-Corporate Partnerships, 
 
 Before Dissolution or its Equivalents. 
 
 Classification of Companies. 
 
 Mining Companies classified. 
 
 Cost Book principle. 
 
 Companies within the Stannaries. 
 
 Wliat Companies must Register. 
 Companies within 8 <^ 9 Fid. c. 16. 
 
 IVhat maij Register. 
 
 Judgments against Companies which 
 
 1 . Companies within Joint Stock Com- 
 
 panies Jets, 1«56, 1857. 
 
 tVhat Companies must Register. 
 
 What Companies may. 
 Effect of Registration. 
 
 2. Classification of Bunks. 
 
 Banks which must Register under 
 
 Joint Stock Jets, 1856, 1857. i do not 
 
 Banks wliich may and do. Separate Judgments. 
 
 Execution v. Registered Banks. \ Judgment Creditors' Equitable Re- 
 
 Limited Liahilitij. medies. 
 
 7 <^ 8 Vict. c. 113. j 5. Companies within 7 Will. A: 8( \ Vict. 
 
 Banks still witJiin 7 <^- 8 Geo. 4, { c. 73. 
 
 c. 46, and 3 .^ 4 Will. 4, c. 98. 6. Insurance Companies. 
 
 Judgments against such ' Are not within Joint Stock Corn- 
 
 Banks. I panics Acts, 1856, 1857. 
 
 Are within Winding-up Acts, '• Are witliin 7^8 Vict. c. 110. 
 
 1848, 1849. Execution v. Separate Estates. 
 
 Savings Banks. 
 
 I CALL by the name of Quasi-Corporations those partnerships Classification 
 which, though there is not that total annihilation of individual of Companies, 
 pecuniary hability to the partnership debts which is the charac- 
 teristic of a Corporation proper, — for, as we shall see presently, 
 they may, upon registration, become incorporate without limited 
 liability, — possess many of the attributes of such Corporations, and 
 are, therefore, obviously removed from ordinary partnerships. 
 
 The bodies, which come under this general description of quasi- 
 corporate partnerships, will be found to classify themselves prin- 
 cipally under the following heads : — 
 
 1 . Companies (other than Banking Companies) regulated by 
 
 the Joint Stock Companies Acts, 1856, 1857 (19 & 20 
 Vict. c. 47; 20&21 Vict. c. 14). 
 
 2. Banking Companies. 
 
 3. Companies engaged in working mines. 
 
 4. Companies incorporated, or otherwise legally constituted, 
 
 under an Act of Parliament, Royal Charter or Letters- 
 Patent. 
 
 5. Insurance Companies. 
 
 And we will consider these also in the exhaustive division 
 of the periods before and after their dissolution, or quasi-disso- 
 lution (i. e. their winding-up or bankruptcy, for these are to them
 
 106 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 (1.) 
 Joint Stock 
 Acts, 1856, 
 1857. 
 
 Companies 
 which must 
 register. 
 
 Meaning of 
 " Joint Stock 
 Company." 
 
 Companies 
 which may 
 register. 
 
 what dissolution proper is to ordinary partnerships), confining 
 ourselves, in the present section, to the first-named period only. 
 
 1. Companies, other than Banking ones, liable to the Joint 
 Stock Companies Acts, 1856, 1857, may be considered under 
 two divisions : — 
 
 (i.) Those which are, or have been, required to register 
 
 under these Acts, 
 (ii.) Those which may register. 
 
 (i.) Those which must. They are : — (a) Such bodies of persons 
 (other than Insurance Companies) consisting of more than twenty, 
 who, since 13th July, 1857, have carried on in partnership any 
 trade or business having gain for its object, unless (a) they are 
 Companies legally constituted under an Act, Charter or Letters- 
 patent, or Mining Companies within the Stannaries, (b) Com- 
 panies, other than Insurance Companies, which have completely 
 registered under 7 & 8 Vict. c. 110, or 18 & 19 Vict. c. 133 (b). 
 
 It will appear in a subsequent section, to what Companies the 
 7 & 8 Vict. c. 110 extended (c). Companies which may have 
 acquired registration under 18 & 19 Vict. c. 133 — now repealed 
 — are any Joint Stock Company formed under 7 & 8 Vict, 
 c. 110 (except Assurance Companies), with a capital divided into 
 shares of a nominal value of not less than 10/. each (c?). 
 
 And the words " Joint Stock Company" are defined by 7 & 8 
 Vict. c. 110(e), for the purposes of that Act, as every partner- 
 ship, consisting of more than twenty-five members, or whereof 
 the capital was divided, or agreed to be divided, into shares so 
 as to be transferable without the express consent of all the co- 
 partners. 
 
 (ii.) As to such bodies of persons as way register. These are, 
 (a) all persons, if seven or more, associated for any lawful 
 purpose, whether for trade or not (/) ; and (b) all Companies, 
 consisting of seven or more, whether trading Companies or not, 
 and having a capital of fixed amount, constituted before July 13, 
 1857 (g). To entitle these last, however, to register with limited 
 liability, the liability of the shareholders must have been pre- 
 viously limited to the amount of their unpaid calls ; or three- 
 fourths of the shareholders, in number and value, must have 
 assented to the registration. 
 
 (a) 19 & 20 Vict. c. 47, s. 2 ; 20 & 21 
 Vict. c. 14, s. 3. 
 
 (6) 20 & 21 Vict. c. 14, s. 27. 
 (e) Post, Sect. 4. 
 
 {d) Sect. 1. 
 
 (e) Sect. 2. 
 
 (/) 19 & 20 Vict. c. 47, s. 3. 
 
 {g) 20 & 21 Vict. c. 14, s. 29.
 
 JUDGMENTS AGAINST QUASI-CORPORATE PARTNERSHIPS. 107 
 
 Upon registration the Companies become incorporate, with or ^f^fj^^^^^ 
 without limited Habihty, at their option. 
 
 Those which register with Umited liabihty acquire, upon 
 registration, until winding up, the privilege of an entire Corpo- 
 ration, of the annihilation of individual pecuniary liability (A). 
 
 Where the association neglects to register when it ought ; or 
 where any Director has authorized the declaration and payment 
 of a dividend when he knows the Company to be Insolvent, or 
 the payment of which he knows would make it so : or where 
 a Company carries on business for six months after its members 
 are reduced to less than seven, the following penalties ensue. 
 In the first case, the whole of the separate estate of each member 
 is liable to the Company's debts (i), and each Director shall 
 forfeit 51 a day (k) ; in the second, the estate of the Directors is 
 liable, jointly and severally, to the amount of the dividend de- 
 clared ; and in the third, the separate estate of members shall 
 be hable to the Company's debts (/). 
 
 And even in the case of unlimited Companies, the separate 
 estates of the shareholders are not liable to the Judgments of 
 the Company ; such liability arising only on winding up. 
 
 Upon registration, the Company acquires the further charac- 
 teristic of a complete Corporation, viz., the non-liability of the 
 partnership property to the separate debts of its members, 
 whether by Judgment, specialty, or simple contract. 
 
 The Judgment Creditors of a Company, whether with or 
 without hmited liability, may, before winding up, issue legal 
 execution, and proceed in Equity upon their Judgments against 
 the property of the Company, whether real or personal, in the 
 usual way, as if the Debtors were an ordinary partnership or 
 sole Debtor (m). 
 
 2. The different sorts of Banks in England are the following : — (2.) 
 (i.) The Bank of England, with its branches, which is a com- classified, 
 plete Corporation, and therefore not within our present re- 
 marks (n). 
 
 (ii.) Private Banks. These may be defined affirmatively, as 
 Banks of exactly ten, or less than ten persons : these always 
 might, if consisting of six or less(o), and still may, except as to 
 any power of issue (p), and even as to that, if they were Banks 
 
 {h) Ibid. Sect. 13, {vi) 1 & 2 Vict. c. 110, s. 121. 
 
 (i) Sect. 3. («) Post, Sect. 5. 
 
 (fe) Sect. 28. (o) 7 Geo. 4, c. 46, s. 1. 
 
 \l) 19 & 20 Vict c. 47, ss. 14, 38. (p) 7 & 8 Vict. c. 32. 
 
 . . h6
 
 108 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 What Banks 
 must register. 
 
 What may. 
 
 of Issue on May 6, 1844 (g-), unless they were within the City 
 of London or three miles (r), lawfully carry on the business of 
 Banking as ordinary partnerships, free from the restrictions im- 
 posed on Banks consisting of a greater number of partners ; and 
 negatively they may be defined, as being such Banks as are dis- 
 tinct from the Bank of England, and not brought within the 
 Joint Stock Acts, 1856, 1857, and do not possess the attributes 
 of a Joint Stock Company, as generally understood, at all. 
 
 This being so, it will be necessary to inquire, with some 
 minuteness, what those Banks are which are brought within the 
 Joint Stock Acts, 1856, 1857, i.e., what are 
 
 (iii.) Joint Stock Banks. Banks were excepted out of the 7 & 8 
 Vict. c. 110, and no definition seems to have been given of Joint 
 Stock Banks in any Act, though the title of various Acts describes 
 them by that name {s). The definition, therefore, of Joint Stock 
 Companies, given in that Act, viz., such partnerships — consisting 
 of more than twenty-five persons — whose capital is divisible into 
 shares transferable without the consent of every member, cannot, 
 in strictness, be held to apply to them ; nevertheless, it seems as 
 good a general definition of them as can be given. 
 
 Joint Stock Banks, then, thus understood, and also such 
 Banks as consist of seven or more persons, although not coming 
 within the above definition, and formed before August 17, 1857, 
 under 7 & 8 Vict. c. 113(0, or 9 & 10 Vict. c. 75 (m), must 
 have registered under the Joint Stock Acts, 1856, 1857, before 
 January 1, 1858 {x). So also Banks consisting of ten persons, 
 formed after August 17, 1857, must register under the same 
 Acts iy). 
 
 Banks, consisting of seven or more persons, having a fixed 
 capital, with shares of a fixed amount, and existing on August 17, 
 1857, and not required to be registered, may, with the consent of 
 the majority of their shareholders, register, and so be brought 
 under the Joint Stock Acts, 1856, 1857 (2f), and that although 
 they have stopped payment, for they may afterwards continue to 
 carry on business (a). And so of Banks consisting of seven but 
 
 {q) 7 & 8 Vict c. 32, s. 11. 
 
 (r) 9 Geo. 4, c. 23, s, 1. 
 
 (s) £. g. 1 & 2 Vict. c. 96 ; 7 8f 8 
 Vict. 0.113. 
 
 (<) What banks were within that Act, 
 post, p. 109. 
 
 {u) The Scotch and Irish Joint Stock 
 
 Bank Regulation Act. 
 
 {x) 20 & 21 Vict. c. 49, s. 4. 
 
 {y) Ibid. s. 13. 
 
 (a) Ibid. s. 6. 
 
 (a) In re Northumberland and Dur- 
 ham District Banking Company, 6 
 W. R. 435.
 
 JUDGMENTS AGAINST QUASI-CORPORATE PARTNERSHIPS. 109 
 
 not more than ten persons, formed after August 17, 1857, if 
 their capital is divisible into at least 100/. shares (6). 
 
 Actions, suits and other legal proceedings, (including therein Execution, 
 executions, it is presumed, whether legal or equitable,) shall be 
 continued against such Company, or the public officer of such 
 Company, as has registered under the Joint Stock Acts, 1856, 
 1857, as if no registration had taken place ; but execution against 
 the effects of shareholders shall not issue ; but the Company's 
 Judgment Creditors may, if the joint property be insufficient, 
 obtain a Winding-up Order under the Joint Stock Acts, 1856, 
 1857(c). 
 
 Banks may register with limited liability, except Banks of ,?ank8 
 
 , P 1 ■ 1 limitedly liable. 
 
 Issue in respect of such issue, the shareholders ot which are 
 
 liable for the whole amount of the issue, in addition to the sum 
 
 for which they would be liable as shareholders of a Limited 
 
 Company {d). 
 
 With regard to 7 & 8 Vict. c. 113 and 9 & 10 Vict. c. 75, they 7 & 8 Vict, 
 may be considered now as in all respects repealed (e), for they 
 were repealed "forthwith" as to Banks formed after August 17, 
 1857; and— as to such Companies formed under them before 
 August 17, 1857, as shall have registered (as they must have 
 done) before January 1, 1858 — from the time of their regis- 
 tration. 
 
 As, however, it is incumbent on Banks formed under the 
 7 & 8 Vict. c. 113 and 9 & 10 Vict. c. 75, to have registered under 
 the Joint Stock Acts, 1856, 1857, it is necessary to see what 
 Banks were within them. They were Companies of more than 
 six persons carrying on the business of Banking in England, 
 Scotland or Ireland after the 5th September, 1844, under an 
 agreement or covenant of partnership entered into (in the case of 
 English Banks) after the 6th May, 1844 (and of Scotch and Irish 
 Banks after 9th August, 1845); these the Acts declared should 
 not carry on such business after the 5th September, unless by 
 virtue of Letters Patent granted according to them. 
 
 With regard to Banks which may(/), but need not and do Banks within 
 not, register, they will be found, if consisting of more than six and 3 & 4 Will, 
 persons, to be regulated by the 7 Geo. 4, c. 46 and 3 & 4 Will. 4, *> <=• 98. 
 c. 98. The history of the last-named Acts is as follows : — The 
 Bank of England consented, in 1826, to relinquish so much of 
 
 (6) 20 & 21 Vict c. 49, s. 13. that sum is, post, Book II., Ch. II. 
 
 (c) Ibid. s. 10. (e) 20 & 21 Vict. c. 49, ss. 4, 6, 13. 
 
 \d) 21 & 22 Vict. c. 91, s. 1. What (/) What may, ante, p. 106. 
 
 h7
 
 110 JUDGMENTS AGAINST SEVERAL. 
 
 their exclusive privileges, as then prohibited any body politic or 
 corporate, or any number of persons exceeding six, in England, 
 from borrowing money on their bills or notes payable at demand, 
 or at any period less than six months. But they agreed to these 
 alterations, on condition that such body or persons should carry 
 on their business, and have the whole of their establishments, 
 heyond a radius of sixty -five miles from London, and that all the 
 members of such corporation or copartnership should indivi- 
 dually become liable for the amount of the bills or notes issued, 
 provided they were members at the date of the bill or note, or 
 of its becoming payable. 
 
 This concession was effected by 7 Geo. 4, c. 46, which also 
 intended to legalize Banking Companies of more than six within 
 sixty-five miles from London, except as to their power of issuing 
 notes, payable on demand. But this was placed beyond doubt 
 by 3 & 4 Will. 4, c. 98, s. 3. 
 
 Creditors, then, by Judgment obtained against the public 
 officer of such a Company, as may not have registered under 20 
 & 21 Vict. c. 49, and is still subject to 7 Geo. 4, c. 46, may issue 
 execution against any member for the time being ; and if in- 
 ejffectually, then (by leave of the Court {g)) against any person 
 who was a member at the time when the contract on which such 
 Judgment was obtained was entered into, or who became a 
 member before such contract was executed, or who was a member 
 at the time of the Judgment being obtained, provided he had not 
 ceased to be a member for three years before execution (h). 
 
 Equity will, in decreeing relief, follow the order of the Judg- 
 ment Creditor's legal remedies (i). 
 Are not Banks Companies within 7 Geo. 4 cannot draw, accept, make or issue 
 any bill or note payable to bearer on demand, except they were 
 Banks of Issue on 6th May, 1844. 
 
 Savings (iv.) Savings Banks. 
 
 Banks. 
 
 Of these little need be said (K). They are regulated by the 
 Acts of Parliament which have established them within the last 
 thirty-five years, and which place them under the control of 
 trustees and managers. Although not having gain for their 
 object, but being simply provident societies, they may, as we 
 have seen, if consisting of seven or more persons (Z), be regis- 
 
 (^) 7 & 8 Vict. c. 32, s. 11. (A) 9 Geo. 4, c. 92 ; 3 & 4 Will. 4, 
 
 {h) 7 Geo. 4, c. 46, ss. 12, 13. c. 14 ; 7 & 8 Vict. c. 83. 
 
 (i) Post, p. 322. (0 Ante, p. 106.
 
 JUDGMENTS AGAINST QUASI-CORPORATE PARTNERSHIPS. HI 
 
 tered under the Joint Stock Acts, 1856, 1857. The trustees 
 and managers are not liable to make good any deficiency in the 
 funds of the Savings Bank, unless they shall have declared by 
 writing deposited with the Commissioners for the Reduction of 
 the National Debt their willingness to be answerable ; but they 
 are personally liable for all moneys actually received by them to 
 the use of the Institution {m). 
 
 3. Mining Companies. . • .. • Mimng^ 
 
 These may be divided into such as are within the jurisdiction companies, 
 of the Stannaries, and such as are not : and both these classes 
 may be subdivided into those which are, and those which are 
 not, on the Cost Book principle ; although most of those in the 
 Stannaries are upon that principle. Vice-Chancellor Wood 
 has (n) declared himself judicially ignorant of that principle, and 
 that the rules of that system must be proved ; and Lord Justice 
 Knight Bruce has expressed the same judicial ignorance (o). 
 This seems strange as the Legislature adopts it as a well-under- 
 stood principle (/>). An intelligible account of it seems to be given 
 in a work of authority. "This class of mines, or, more cor- Cos^^^Bf^^^^^^^ 
 rectly, of Mining Companies, derives its name from a book or 
 books, long familiar in the account houses of western Mining 
 Companies, in which are entered, among other things, the costs 
 or working expenses, of the mine. The adventure is to be 
 divided into equal parts, called shares. The number of parts 
 may be varied by a resolution of the shareholders (but not so 
 as to affect the relative value of shares held by existing adven- 
 turers), or by the devolution or relinquishment of shares. 
 
 The principal agents, usually named at meetings and remov- 
 able, are the managing agents for underground and surface 
 works, such as captains, &c., and a purser or financial 
 manager. 
 
 A book is kept called the " Cost Book," in which should be 
 regularly entered — 
 
 1. A list or lists of shareholders, with the address and number 
 
 of each, and dates of transfers. 
 
 2. Names of officers appointed. 
 
 3. Resolutions of meetings duly summoned. 
 
 (m) 7 & 8 Vict c. 83, s. 6. (o) Re Pennant and Craigwen Con- 
 
 (n) Re Great Cambrian Mining and solidated Lead Mining Company, 4 De 
 
 Quarrying Company, Richardson's case, G., M. & G. 295. 
 
 2 Kay & J. 263. {p) E. g. 12 & 13 Vict. c. 108, s. 1.
 
 lU 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 Companies 
 within the 
 Stannaries. 
 
 Companies not 
 within the 
 Stannaries. 
 
 (4.) 
 Companies 
 within 8 & 9 
 Vict. e. 16. 
 
 Judgments 
 against them. 
 
 4. Accounts and the audit thereof. 
 
 5. Declarations of calls and dividends. 
 
 6. All duly notified changes in the ownership of shares" (j9). 
 Both those which are, and those which are not, worked on 
 
 this principle, were specially excepted from 7 & 8 Vict. c. 110, 
 and are not required to be registered under the Joint Stock Acts, 
 
 1856, 1857, if they are within the Stannaries {q) \ but may be 
 registered, if they answer the description given by sect. 29 of 
 20 & 21 Vict. c. 14; in which case their rights and liabilities 
 will of course be thenceforth the same, as those of companies 
 originally formed under those Acts. 
 
 ■ If not so registered, the rights of their Judgment Creditors will, 
 if the Company be one within the Stannaries, be governed by the 
 18 & 19 Vict. c. 32, so far as that Act provides for them(r); 
 where it does not, they will be the same as those of Judgment 
 Creditors of ordinary unincorporated partnerships. 
 
 If not within the Stannaries, and if consisting of more than 
 twenty persons, and having gain for their object, they must re- 
 gister under the Joint Stock Acts, 1856, 1857, whether formed 
 before or after July 13, 1857, if they carry on business after 
 that day, unless constituted by Charter, Act, or Letters Patent(s). 
 If consisting of seven or more, they may register, though not 
 having gain for their object. 
 
 4. Companies constituted under some Act, Charter or Letters 
 Patent. 
 
 These may be divided principally into Companies formed 
 under the two Acts of 8 & 9 Vict. c. 16 and 7 Will. 4 & 1 Vict. 
 c. 73. The Companies which are within the former Act are 
 all " such Joint Stock Companies as have been incorporated by 
 any Act passed since May 8, 1845, for the purpose of carrying 
 on any undertaking "(0- 
 
 These Companies are not compelled to register (m), but it is 
 optional \v\i\\ them to do so, under the Joint Stock Acts, 1856, 
 
 1857, if they are within the description in sect. 29 of 20 & 21 
 Vict. c. 14, upon the terms of that section. If they do not so 
 register, their Judgment Creditors may issue execution against 
 the real or personal estate of the Company, as in the case of a 
 
 (/)) Procedure in the Stannaries of 
 Cornwall and Devon. " Introductory 
 Notice," p. xix. et seq. 
 
 {q) 20 & 21 Vict. c. 14, s. 3. 
 
 (r) See Table of Courts, Appendix, 
 (s) 20 & 21 Vict. c. 14, s. 3. 
 (0 8 & 9 Vict. c. 16, s. 1. 
 («) 20 & 21 ^'ict. c. 14, s. 4.
 
 JUDGMENTS AGAINST QUASI-CORPORATE PARTNERSHIPS. 113 
 
 sole Debtor : and also against the separate realty and personalty 
 
 of every member to the extent of his unpaid shares, but only if 
 
 execution has first issued ineffectually against the joint estate, 
 
 and upon an Order of the Court (out of which such execution 
 
 issued) on motion with notice {x). 
 
 Separate Judgment Creditors have no right against the joint Against 
 r o />/->!•• 1 • Members, 
 
 estate, for the reason mentioned in the case ot Companies witlnn 
 
 19 & 20 Vict. c. 47(1/). 
 
 Nothing is said in the 8 & 9 Vict, of the equitable remedies Equitable re- 
 of the Companies' Judgment Creditors, except that it contem- 
 plates the issuing of equitable executions (z). The same redress, 
 however, will be given them, as in ordinary cases, except that 
 the declaration of their rights will be that the Judgment is a 
 charge upon t/ie tolls of the Company, and a sale of the Com- 
 panies' lands will be refused. The plaintiff may be appointed 
 Receiver (a). 
 
 Where the goods of a Canal Company are in the hands of a 
 Receiver, appointed by the Court of Chancery, a Judgment 
 Creditor may obtain leave hi Equity to execute a.Ji.fa. against 
 such goods ; but must not execute it without such leave (Z>) : and 
 so of an elegit against the land ; but all that he can take under 
 the latter writ will be the right of the Company in such lands 
 subject to the user of the canal by the public (c). 
 
 5. Companies within 7 Will. 4 & 1 Vict. c. 73 are— " any 5. 
 
 • TIT T) i. 1- Companies 
 
 body of persons, though not incorporated by Letters ratent, within 7 Will. 
 
 associated together for any trading or commercial purpose " {d ). ^ &^l Vict. 
 
 It is not compulsory on them to register under the Joint Stock 
 
 Acts, 185G, 1857 (^). But it is optional with them to do so, if 
 
 they are within the description in sect. 29 of 20 & 21 Vict. 
 
 c. 14. If they do not, their liability stands thus: the Letters 
 
 Patent may(/) — not must — declare the extent of the members' 
 
 individual liability ; if they do not, it remains subject to the rules 
 
 of ordinary partnerships. If they do declare it, the Judgment 
 
 Creditors may go against separate estates for the amount foi 
 
 which each member is liable under the liCtlers, after deducting 
 
 (x) Ibid. s. 36. Company, 3 M'N. & G. 10k 
 
 ( h) Viz., tbat ex hypoihesi they are (c) Potts v. Warwick and Birming- 
 
 Incorporated Companies, 8 & 9 Vict. ham Canal Navigation Company, Kay, 
 
 c. 16, s. 1. H'2. 
 
 («) 8 & 9 Vict c. 16, s. 36. (d) Sect. 2. 
 
 (a) Furness v. Cateiham Railway (e) 20 & 21 Vict. c. 14, s. 41. 
 Company, 25 Bcav. 614. (/) 7 Will. 4 & 1 Vict. c. 73, s. 4. 
 
 (b) Russell V. East Anglian Railway
 
 114 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 6. 
 
 Insurance 
 Companies. 
 
 Execution 
 against Share- 
 holders. 
 
 therefrom the amount which he or any previous holders of the 
 same shares may have paid under any former execution ( g). 
 
 Letters Patent are so called because they are exposed to open 
 view, with the Great Seal at the bottom, and addressed by the 
 Sovereign to all the subjects of the realm Qi). 
 
 Nothing is said in 7 Will. 4 & 1 Vict, of equitable pro- 
 ceedings. 
 
 6. Insurance Companies. 
 
 Insurance is a contract by which one party, in consideration 
 of a premium, undertakes to indemnify another against a par- 
 ticular event. A Policy of Insurance is the instrument in which 
 that contract is set forth (i). The principal Insurance Com- 
 panies are Maritime, Fire, and Life. In Life Insurances the 
 insurer must have an interest in the life of the insured (J), 
 e. g., a man in his own life {k), or a Creditor in that of his 
 Debtor (Z). 
 
 All Insurance Companies are, as far as regards the question of 
 unlimited liability, subject to the general Law of ordinary partner- 
 ships, and are expressly excepted from registering under the 
 Joint Stock Acts, 1856, 1857 (m). They are, however, excepted 
 from the repeal of 7 & 8 Vict. c. 1 10 (w) ; to which, therefore, it 
 is still necessary to refer for the remedies of their Judgment 
 Creditors. They may, if due diligence has been used in vain to 
 obtain satisfaction of their debt, out of the property of the Com- 
 pany, issue execution against the separate estate of any existing 
 or former shai'eholder, provided he has not ceased to be one 
 three years, and was one when the contract was made, on which 
 such Judgment was obtained, or became one whilst such con- 
 tract was unexecuted, or was one when the Judgment was ob- 
 tained. Execution against such separate estate, however, shall 
 not issue without leave of the Court (or a Judge of it) in which 
 such Judgment was obtained upon motion or summons, with 
 notice (o). 
 
 Such Companies, however, possess the privilege of perfect 
 Corporations, in having the corporate property exempt from the 
 claims of separate Judgment Creditors of the shareholders, 
 
 {g) Ibid. s. 24. 
 {h) 1 Blackst. (Stejih.) C16. 
 (t) Wms. P. P. 141 ; and post, Book 
 II., Ch. I., Sect. 2. 
 
 0") 14 Geo. 3, c. 48, s. 1. 
 
 (/,-) Smith's Merc. Law, 391, 
 (/) Ibid. 
 
 (w) 19 & 20 Vict. c. 47, s. 2. 
 (h) 20 & 21 Vict. c. 80, s. 1. 
 (o) 7 & 8 Vict. c. 110, s. C(j.
 
 JUDGMENTS AGAINST QUASI-CORPORATE PARTNERSHIPS. 
 
 115 
 
 provided that they have completely registered under 7 & 8 Vict, 
 c. 110, as they must do if within that Act {q). 
 
 The Act is silent as to equitable remedies. Equity, however, 
 will relieve, following the order of the legal remedies, but not 
 require the leave of a Common Law Court (r). 
 
 Section 4. 
 
 Judgments against Quasi-Corporate Partnerships on their Dis- 
 solution, or its Equivalents. 
 
 1. Companies within the Joint Stock Jets, 
 
 1856, 1857. 
 
 2. The Winding-up Acts, 1848, 184'9. 
 
 May he applied to Companies within 
 Joint Stock Acts, 185(5, 1857. 
 
 What Companies within them. 
 
 Not Railways. 
 
 Mining Companies are. 
 
 Stannary Companies to be wound 
 up by Vice- Warden's Court. 
 
 What acts authorize winding up. 
 
 Winding up not Creditors' rem.edy. 
 
 Exception. 
 
 Winding up does not affect Judg- 
 ment Creditors. 
 
 Execution against Shareholders, 
 
 Suit in Equity. 
 
 3. 7 <^8 riot. e. 111. 
 
 What Companies are within it. 
 
 What Companies were within 7^8 
 Vict. c. 1 10. 
 
 Companies excepted from. 
 
 What acts subject Companies to 
 7^8 Vict. c. 111. 
 
 Execution v. Separate Estates. 
 
 When winding up may be in Chan- 
 cery. 
 
 Banks are not within the Act. 
 
 Insurance Companies are. 
 
 4. What Companies are within 8^9 Vict. 
 
 c. 98. 
 
 5. Companies within 9 ^- 10 Vict. c. 28. 
 
 Effect of Resolution not to apply 
 7 4-8 Vict.c. 111. 
 
 Resolution to apply it. 
 
 Creditors cannot set the Act in 
 motion. 
 
 Contribution between Committee- 
 men. 
 
 6. Insolvency of Members of Companies. 
 
 The 19 & 20 Vict. c. 47, and 20 & 21 Vict. c. 14, have created i.. 
 
 a peculiar system of </Masi-Bankrupt Law, applicable to Com- wkhiirJolnt 
 panics within their provisions, under the term of " Winding up." Stock Acts, 
 To what Companies the Acts apply has already been shown {s). '^ ' 
 
 Any Creditor of the Company by the Judgment either of a Judgment Cre- 
 Superior or Inferior Court, who has issued execution, and is '^'^"'^ ^^'^''"°"- 
 returned unsatisfied in whole or in part by the Sheriff of the 
 County in which the Company's registered office is situate, may 
 petition the Court for a Winding-up Order (t). 
 
 Executions (whether completely executed against the Com- 
 pany or not) within three months before the petition, are void 
 against the liquidators, except that the Execution Creditor 
 may retain thereout, and proceed therewith for costs, if the 
 execution would have been valid but for the Act (w). And the 
 same executions which would be fraudulent if the Debtor had 
 been a sole trader will be fraudulent here also (u). 
 
 ((/) Ibid. s. 25, and post, p. 120. (t) 19 & 20 Vict. c. 47, s. G8. 
 
 (r) Post, p. .322. {u) Ibid. s. 80. 
 
 (s) Ante, p. 106. (y) Ibid. s. 76. 
 
 I 2
 
 116 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 If the Company be limited, a Judgment Creditor of the Com- 
 pany, whether it ^be wound up vohmtarily or by the Court, may 
 come against the separate estate of any shareholder, for the 
 amount of his unpaid shares (x), but for no more; provided the 
 shareholder has not ceased to be one before the commencement 
 of the winding up (y). 
 
 If unlimited, the separate estates of the existing shareholders, 
 (or of former ones, if they have not ceased to be such for three 
 years, and if the debt on which the Judgment was obtained was 
 not contracted after they ceased to be such (z)), are liable to the 
 Judgment Creditor of the Company, to an amount sufficient to 
 pay the Judgment (a). It would seem that a Judgment Creditor 
 would have priority out of the Company's assets, as in an admi- 
 nistration suit, over other Creditors, if he resorted to Equity. 
 " The language of the Act is remarkable ; the words being, that 
 the Court shall cause the assets of the Company to be applied in 
 discharge of the liabilities, in a due course of administration (b), 
 which Equity lawyers understand in the ordinary sense of 
 priority, viz., first Crown debts, then Judgment debts, Specialty 
 debts, in which the heir is bound, &c. Whether this was the 
 intention of the Act or not is doubtful "(c). 
 
 For the proper Court to present the winding-up petition to, 
 and the course of proceeding under it, the reader is referred to 
 a subsequent part of this work (d). 
 -... ,.^* The Winding-up Acts, strictly so called, are three in number, 
 
 Winding-up o r ' j » 
 
 Acts, 184-8, viz., the Winding-up Acts, 1848, 1849, (11 & 12 Vict. c. 45, and 
 12 & 13 Vict. c. 108,) and the Joint Stock Companies Winding- 
 up Amendment Act, 1857, (20 & 21 Vict. c. 78). I say, strictly 
 so called, in order to distinguish them from the Companies Dis- 
 solution Acts, 7 & 8 Vict. c. Ill, and 8 & 9 Vict. c. 98, which 
 are Bankruptcy rather than Winding-up Acts, and because the 
 Joint Stock Companies Acts, 1856, 1857, are not merely Winding- 
 up Acts. 
 
 They are not repealed by the Joint Stock Companies Acts, 
 185G, 1857, and their practice, powers, and jurisdiction may be 
 applied to the winding up of Companies under these last-named 
 Acts, until rules for regulating such last-named winding up are 
 
 {x) 19 & 20 Vict. c. 47, s. 61. (c) Per Vice-Chancellor Kindersley, 
 
 (y) Ibid. s. 63. In re Northumberland and Durham 
 
 (z) Ibid. s. 62. District Banking Company, 6 W. R. 
 
 {a) Ibid. s. 61. 455. 
 
 (i) Ibid. s. 75. {d) Post, Book II. 
 
 1849.
 
 JUDGMENTS AGAINST QUASI-CORPORATE PARTNERSHIPS. 117 
 
 made (e). But the provisions of the Joint Stock Companies 
 Acts, 1856, 1857, relative to winding up, are not, e converso, 
 applicable to any Company wound up under the Winding-up 
 Acts, 1848, 1849(/). 
 
 The Companies which are within the last-named Acts, and WhatCom- 
 the 20 & 21 Vict. c. 78, are " all Partnerships, Associations within them, 
 and Companies, whereof the partners or associates are not less 
 than seven, whether incorporated or unincorporated, and whether 
 formed or subsisting before or after August 14, 1848, or August 1, 
 1849, except Railway Companies incorporated by Act of Par- 
 liament "(^). 
 
 These last-named Companies (Railways), if registered under Not Railways, 
 the Joint Stock Companies Acts, 1856, 1857, as we have seen 
 they may be, will of course be subject to be wound up under 
 them ; but if not so registered will, upon their bankruptcy, be 
 liable to the Dissolution Acts, 7 & 8 Vict. c. Ill, 8 & 9 
 Vict. c. 98, 9 & 10 Vict, c 28, and 13 & 14 Vict. c. 83, which 
 contain the only machinery/ for adjusting the affairs, upon their 
 failure, of this great and important class of Companies. 
 
 Banks which may, but need and do not, register under the 
 Joint Stock Acts, 1856, 1857, are within the Winding-up Acts 
 of 1848, 1849. If a Bank registers after suspending payment, 
 the Winding-up Court is bound by the Registrar's certificate, 
 unless a case of fraud is made out against the Company so re- 
 gistering (^). 
 
 Insurance Companies, except those excepted from the 7 & 8 
 Vict. c. llO(z), are within the Winding-up Acts, 1848, 1849. 
 
 All Mining Companies, whether within the Stannaries or not, Mining Com- 
 whether on the Cost-Book principle or not, are, if not registered, P^"^^^ 
 (as we have seen they may be, if within sect. 29 of 20 & 21 Vict, 
 c. 114,) within the Winding-up Acts (70, 1848, 1849, and liable 
 to be wound up under them. But the winding up of such 
 Mining Companies as are within the Stannaries, and on the 
 Cost-Book principle, shall be effected in the Vice-Warden's 
 Court, except on a special application to the High Court, on a 
 certificate of the Vice-Warden, showing that the Jurisdiction of 
 his Court is insufficient (Z). 
 
 (f) 21 & 22 Vict. c. 60, s. 11. 267. 
 
 (/) 19 & 20 Vict. c. 47, s. 108. {i) What are, post, p. 120. 
 
 {g) 12 & 13 Vict. c. 108, s. 1. (A) 11 & 12 Vict. c. 45, s. 2. 
 
 Qi) Re Northumberland and Durham {I) 12 & 13 Vict. c. 108, s. 1 ; 20 ic 21 
 
 District Banking Company, 6 W. R. Vict, c. 78, s. 12. 
 
 i3
 
 118 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 What acts 
 authorize a 
 winding up. 
 
 Winding up a 
 Contributory' s 
 remedy. 
 
 Judgments not 
 affected. 
 
 And even Mining Companies within the Stannaries, registered 
 under the Joint Stock Companies Acts, 1856, 1857, may have 
 applied to them the practice of the Winding-up Acts, 1848, 
 1849 (m). 
 
 The acts which will authorize the winding up of Companies 
 still subject to the Acts of 1848, 1849, are (i.) such acts as will 
 be deemed acts of bankruptcy authorizing the dissolution, under 
 7 & 8 Vict. c. Ill, of Companies subject to it{n); (ii.) an action 
 against a member for a debt of the Company, and failure by the 
 Company to pay the same, or indemnify the defendant (o) ; (iii.) 
 dissolution, without complete winding up, of any Company sub- 
 ject to the Act ( p) ; (iv.) any other ground which, in the opinion 
 of the Court of Chancery, shall be just (cj). 
 
 But it depends on the Contributories, not on the Creditors, 
 whether the acts shall be set in motion — the petition must be 
 the petition of a Contributory — unless the Company be one 
 (other than a Banking Company) within 7 & 8 Vict. c. Ill, 
 against whom a petition for adjudication of Bankruptcy has been 
 presented under the last-named Act ; in which case the petition 
 may, by Order of the Court of Bankruptcy, be that of the Cre- 
 ditors' Assignees (r). 
 
 The effect and object of the Acts of 1848, 1849 (since much 
 narrowed by the Joint Stock Acts, 1856, 1857, and their winding- 
 up machinery), was to transfer to Equity the Bankruptcy Juris- 
 diction connected with the dissolution and winding up of Com- 
 panies, without creating any scheme of Bankruptcy properly so 
 called. The rights and remedies of Judgment Creditors of such 
 Companies remain unaffected by the Acts, except that after the 
 appointment of an Official Manager, no Creditor or other person 
 can "proceed" with any action {i.e. no execution, being the con- 
 tinuance of a suit(s), can, it is presumed, be executed against the 
 joint or separate estate) without the Master's leave, until after 
 proof before him of the debt {t). And no execution shall issue 
 against the property of any member, or former member, without 
 leave of the Court of Bankruptcy (where the Bankruptcy has 
 happened before the winding up), or without the leave of a Judge 
 or Master (of the Court of Chancery) if the Bankruptcy happen 
 after the winding up, and if the Creditors shall have been called 
 
 (;«) Ante, p. 116. 
 (72) What those are, post, p. 119. 
 (0) 11 & 12 Vict. c. 45, s. 5. 
 (p) Ibid. 
 
 (9) Ibid. 
 
 (r) 7 & 8 Vict. c. Ill, s. 20. 
 
 (s) Ante, p. 91. 
 
 (0 11 & 12 Vict. c. 45, s. 73.
 
 JUDGMENTS AGAINST QUASI-CORPORATE PARTNERSHIPS. 119 
 
 on to appoint a representative in the proceedings before the 
 
 Judge or Master (u). But the filing of a bill by a Judgment Suit in Equity. 
 
 Creditor of the Company against the estate of a shareholder to 
 
 redeem a mortgage upon it, is not a "proceeding" with an 
 
 execution within sect. 7, requiring leave of the Court of 
 
 Bankruptcy (x). 
 
 If the Creditor begins a suit in Equity, after the appointment of 
 an Official Manager, with the Master's leave, (or without such 
 leave if he has proved,) the Official Manager must be made a 
 defendant (?/) ; if it was begun before his appointment, it may be 
 continued against him, the Creditor obtaining an Order, on 
 motion or petition without notice, to substitute him (z). 
 
 Judgments against the Official Manager are enforceable as 
 Judgments against the Company (a). 
 
 The 7 & 8 Vict. c. Ill, which is a Bankruptcy rather than a ^ ^.•. 
 Winding-up Act, though entitled "An Act for facilitating Wind- m. 
 ings up," is not repealed by 19 & 20 Vict. c. 47. The bank- 
 ruptcy of Companies within it is no bankruptcy of the partners (i). 
 Companies within 19 & 20 Vict, are not wound up under 7 & 8 
 Vict, nor are Companies within 7 & 8 Vict., and not registered 
 under 19 & 20 Vict., wound up under the latter Act(c). 
 
 The Companies which are within 7 & 8 Vict. c. Ill are, What Compa- 
 (i.) any commercial or trading Company, incorporated by Charter P'^^ '^^^ within 
 or Act ; (ii.) any commercial or trading Association privileged 
 under 7 Will. 4 & 1 Vict. c. 73, or any other Act ; (iii.) any 
 commercial or trading Company or body, which, by the last- 
 named Act, is to be considered as subsisting and within its pro- 
 visions ; (iv.) any Company within 7 & 8 Vict. c. 110 ; (v.) any 
 Joint Stock Company, existing on September 5, 1844, and within 
 the definition of a Joint Stock Company contained in 7 & 8 
 Vict. c. 110, s.2(d). 
 
 As the 7 & 8 Vict. c. 110 is expressly repealed by 19 & 20 WhatCompa- 
 Vict. c. 47, except as to Insurance Companies, it would seem |^\^hi^7\ 8 
 that there are now no Companies, except Insurance Companies, Vict. c. lio. 
 within it, which can be within the 7 & 8 Vict. c. Ill ; however, 
 it may be perhaps convenient, especially with reference to the 
 necessity of all Companies registered under it, being registered 
 
 (k) 20 & 21 Vict c. 78, s. 7. (a) Ibid. s. 57. 
 
 (.r) Barnes v. Thrupp, 6 W. R. 48. (b) Post, p. 120. 
 
 (y) 11 & 12 Vict. c. 45, s. 50. (c) 19 & 20 Vict. c. 47, s. 59. 
 
 (a) Ibid. s. 52. (rf) 7 & 8 Vict. c. Ill, s. 1.
 
 120 JUDGMENTS AGAINST SEVERAL. 
 
 ♦ 
 
 under the Joint Stock Acts, 1856, 1857(e), to state that the 7 & 
 8 Vict. c. 110, comprehended all partnerships established in the 
 United Kingdom for commerce, insurance or profit, the capital 
 whereof was divisible into shares, transferable without the 
 express consent of every partner, or which consisted of more 
 than twenty-five persons, except the following : — 
 Exceptions. Banking Companies. 
 
 Benefit Building Societies. 
 
 Schools. 
 
 Scientific and Literary Institutions. 
 
 Loan Societies. 
 
 Friendly Societies (not assuring lives for more than 2001. per 
 life). 
 
 Mining Companies on the Cost-Book principle. 
 
 Irish anonymous Partnerships. 
 
 Companies incorporated under a Special Act or Charter. 
 
 Partnerships existing before November, 1844. 
 
 Companies authorized by Statute, or Letters Patent, to be sued 
 in the name of some oflScer [f). 
 What acts The acts, which shall be acts of Bankruptcy by Companies 
 
 paii'ierto ?"& 8 subject to 7 & 8 Vict. c. 1 1 1, are, first, a declaration of Insolvency, 
 Vict. c. 111. at a Board of Directors {g) ; secondly, nonpayment by the Com- 
 pany (for fourteen days after notice), of a Judgment debt {h) ; 
 thirdly, nonpayment (for fourteen days after peremptory order) 
 of money decreed to be paid in Equity, Lunacy or Bank- 
 ruptcy (i) ; fourthly, if the Company do not either pay a debt 
 within one month after service of a writ of summons, by 
 a Creditor making affidavit of it, or defend the action on merits 
 and enter an appearance (A). 
 
 Upon the commission of any of the above acts, a fiat (now a 
 petition) may issue at the instance of any joint Creditor (J), and 
 be prosecuted as similarly as possible to fiats against sole 
 Debtors. But as the bankruptcy of the Company is not the 
 bankruptcy of the individual member, the general practice in 
 Bankruptcy will not wholly apply, e.g. only the joint, and not the 
 separate, estates will vest in the assignees, and be distributable 
 in Bankruptcy {m). 
 Execution. Judgment Creditors of the Company, whose debt is proveable 
 
 (e) Ante, p. 106. (i) Ibid. s. G. 
 
 (/) 7 & 8 Vict. c. 110, s. 2. {k) Ibid. s. 7. 
 
 (g) 7 & 8 Vict. c. Ill, s. 4. (/) 12 & 13 Vict. c. 106, 5.89. 
 
 (h) Ibid. s. 5. (m) 7 & 8 Vict. c. Ill, ss. 3, 11.
 
 JUDiGMENTS AGAINST QUASI-CORPORATE PARTNERSHIPS. 121 
 
 under the petition of Bankruptcy, shall not issue execution 
 against any separate estate until they have proved, nor (if a 
 Receiver has been appointed in Chancery) without leave of 
 Chancery (w). 
 
 The Bankruptcy Court may authorize the assignees to petition 
 the Court of Chancery for a final winding up of the Company's 
 affairs under the Winding-up Acts, 1848, 1849, and to compel 
 contribution among the partners inter se (o). The Court of 
 Chancery may, thereupon, make orders for settling questions of 
 contribution, adjusting equities, getting in assets, requiring Credi- 
 tors to claim debts, &c. (p). 
 
 Banks which may, but need and do not, register under the Banks not 
 Joint Stock Acts, 1856, 1857, as they were only brought under within the Act. 
 7 & 8 Vict. c. Ill by 7& 8 Vict. c. 113(9), which is repealed (r), 
 cannot now, it would seem, be wound up under c. 1 1 1 (s). 
 
 Insurance Companies, except those excepted from 7 & 8 Vict. Insurance 
 c. 110(4 are within the 7 & 8 Vict. c. Ill, so that all that Companies are. 
 has been said of Companies within the last-named Act applies 
 here. 
 
 The Companies to which the 8 &'9 Vict. c. 98 (which extends 4. 
 
 only to Ireland) {u) applies, are the same as those within 7 & 8 gg^ 
 Vict. c. 111. 
 
 The 9 & 10 Vict. c. 28, is still Law, but the Companies within 5. 
 
 it are of a very limited description. They are such only as, ^ 28. 
 before July 3, 1846, entered into a subscription contract or other 
 agreement for the formation of a Railway requiring an Act, and 
 in respect of which an Act shall not have been obtained before 
 July 3, 1846(»). With respect to these Companies, if a general Resolution not 
 meeting, which dissolves them, decide they shall not be wound ykt c ni ^ 
 up under 7 & 8 Vict. c. Ill (and it is imperative on them to 
 decide whether the dissolution is an act of Bankruptcy (x)), they 
 shall (subject to their liability to be made bankrupt under that Act) 
 be wound up according to the rules of (ordinary) un-incorporate 
 undertakings (y), i. e. the Creditors' rights will be worked out 
 through the equities of the partners to an account in Equity (z). 
 
 (n) Ibid. s. 10. 267. 
 
 (o) Ibid. s. 20. (t) What those are, ante, p. 120. 
 
 (p) Ibid,, and 11 & 12 Vict. c. 45, («) Sect 31. 
 
 s. 83. (v) Sect. 1. 
 
 (q) Sect, 48. (x) Sect, 23. 
 
 (r) Ante, p. 109. {y) Sect. 24. 
 
 («) Re Northumberland and Durham («) Ante, Sect. 2. 
 District Banking Company, 6 W. R. 
 
 i5
 
 122 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 To apply it. 
 
 Creditors can- 
 not set Act in 
 motion. 
 
 Legal contri- 
 bution. 
 
 Insolvency of 
 Members of 
 Companies. 
 
 13 & 14 Vict 
 c. 83. 
 
 If the meeting decide they shall be wound up under 7 & 8 Vict. 
 c. Ill, the Judgment Creditors' rights are, of course, the same as 
 those of Companies within that Act. It is the shareholders, then, 
 who originate their dissolution. The Creditors' rights, however, 
 come directly into play in the following way. After the meeting has 
 decided on dissolution, it is competent for any Creditor to the 
 usual amount, within three months after the meeting shall have 
 voted a dissolution, to present a petition (a) for an adjudication 
 of Bankruptcy against the Company (6), upon the issuing whereof 
 the Company is brought within the 7 & 8 Vict. c. Ill, or 8 & 9 
 Vict. c. 98. Such a petition may be also presented upon the 
 same conditions, by any three of the committee who resolved on 
 the dissolution (c), which proceeding, of course, indirectly acce- 
 lerates the Creditors' rights. 
 
 A committee-man of the dissolved Company, against whose 
 separate estate a Judgment Creditor of the Company has reco- 
 vered his debt, becomes a Creditor, and may sue at Law for con- 
 tribution all or any other members of the committee (c?). 
 
 The Law is the same in the case of the personal insolvency of 
 individual members of ^wasi-corporate or wholly corporate part- 
 nerships, as in that of members of ordinary un-incorporate 
 ones (e), except that the vesting order not working in the former 
 cases a dissolution, the insolvency will not affect the rights of 
 the Creditors of the partnership. 
 
 Under the 13 & 14 Vict. c. 83, which applies only to Compa- 
 nies authorized to make Railways, by an Act prior to 14th August, 
 1850, such Companies may apply to the Commissioners of Rail- 
 ways for leave to abandon their undertaking, who may authorize 
 such abandonment, and the Company's powers shall thereupon 
 cease, except for winding up. And the shareholders (where the 
 whole Railway is abandoned) may petition for a winding up 
 under the Act of 1848, and in such case landowners entitled to 
 compensation under the 13 & 14 Vict, shall be Creditors in 
 respect of such compensation. 
 
 (a) 12 & 13 Vict. c. 106, s. 89. 
 (6) 9 & 10 Vict. c. 28, s. 27. 
 (c) Ibid. 
 
 (d) Ibid. s. 31. 
 
 (e) Ante, p. 104.
 
 JUDGMENTS AGAINST CORPORATIONS PROPER. 
 
 123 
 
 Section 5. 
 Judgments against Corporations Proper, 
 
 1. Judgments v. Corporations. 
 
 Lay Rectors. 
 
 2. Judgments v. Corporators. 
 
 Crown. 
 
 Corporations classified. 
 
 (ii.) Corporations Aggregate. 
 
 (i,) Corporations Sole. 
 
 Ecclesiastical. 
 
 Spiritual Parson or Vicar 
 
 Dean and Chapter. 
 
 solvent. 
 
 Lay. 
 
 Insolvent Clergyman. 
 
 Municipal Corporations. 
 
 Sequestration. 
 
 Poor Law Guardians. 
 
 Perpetual Curates. 
 
 Eleemosynary Corpora- 
 
 Bishops and Archbishops. 
 
 tions. 
 
 Archdeacons. 
 
 Separate interest of Fel- 
 
 Deans. 
 
 lows. 
 
 Canons. 
 
 Dissolution of Corporations. 
 
 Corporator. 
 
 Resuming the thread of our subject as laid down above, we Judgments 
 are now to consider the rights and remedies of Judgment Cre- corporations, 
 ditors, where their Debtor is a Corporate body, in the true sense 
 of that word, or the member of such a body. 
 
 As regards Creditors of the Corporation, our inquiry is limited 
 to their rights and remedies against the corporate property, for 
 it is the established characteristic of a true Corporation, that the 
 separate estates of the individual corporators are exempted from 
 its debts (/). Nor only so, but in^some cases the separate Cre- 
 ditors of a corporator cannot come, at least by the ordinary 
 Legal and Equitable channels, at his separate interests in the 
 corporate property, even although he be a Corporation sole, and 
 therefore, for the time being, represents, and contains in himself, 
 all the Corporation {g). 
 
 Neither can separate Creditors of a corporator proceed either 
 at Law or in Equity against the corpus of the corporate pro- 
 perty (for it is as much a privilege of a Corporation that that 
 property should be protected from such debts, as that the sepa- 
 rate estate of the corporators should be protected from the debts 
 of the Corporation) ; nor, of course, against the separate estate of 
 other non-Debtor corporators. 
 
 However, such separate Creditors have the usual remedies of 
 Creditors against any separate estate which their Debtor may 
 have, otherwise than in his corporate capacity. 
 
 As Corporations proper are not subject to the Bankrupt or 
 Insolvent Laws, our inquiries will be still further narrowed. 
 
 (/) 3 Steph. Blackst. 127. 
 
 {g) Post, p. 124. 
 
 i6
 
 12* 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 Classification 
 of Corpora- 
 tions. 
 
 (i.). 
 Corporations 
 sole. 
 
 Spiritual 
 Parson. 
 
 Legal fi. fa. de 
 bon. eccles. 
 
 Sequestrari 
 facias. 
 
 Even the old City Companies of the Metropolis are not within 
 those Laws, though intimately connected with, and having the 
 inspection of, their own trades (A). 
 
 The following are the principal bodies, of persons who, at 
 the present day, come under the idea of a complete legal 
 "Corporation" or "Body Politic;" for the legal notion of these 
 two terms appears the same (i), although the Acts generally 
 specify both. 
 
 First. Corporations sole ; and of these, Ecclesiastical, as Spi- 
 ritual Parsons, Vicars, and some Perpetual Curates, Archdeacons, 
 Deans, Canons, Bishops, and Archbishops. 
 
 Secondly. Corporations aggregate ; and these are either 
 Ecclesiastical, as Deans and Chapters ; or Lay, which are, in 
 their turn, either Civil, (as the Universities, Bank of England, 
 Municipal Corporations, and the old City and other Companies, 
 incorporated for Art, Science or Commerce,) or Eleemosynary, 
 as Colleges and Hospitals. 
 
 The rights and remedies of a Judgment Creditor of a Spiritual 
 Parson or Vicar (not insolvent) stand thus : 
 
 The Judgment is, on grounds of public policy, and by virtue 
 of 13 Eliz. c. 20, (repealed by 43 Geo. 3, c. 84, but revived by 
 57 Geo. 3, c. 99,) no charge in Equity against the benefice under 
 s. 13 of 1 & 2 Vict. c. 110, nor even against the Debtor's life 
 interest therein (k) ; nor is such Benefice liable to legal execu- 
 tion under s. 1 1 (Z). 
 
 The Sheriff then, will, on an ordinary _/i. fa. or elegit, issued 
 on a Judgment obtained against such a Debtor, return nulla 
 bona, (if his only property be his Rectory or Vicarage,) or that 
 he is a beneficed Clerk with no Lay fee. The plaintiff may 
 thereupon procure out of a Common Law Court a writ of /?./a. 
 de bonis ecclesiasticis, directed to the Bishop, (which is in the 
 nature of an ordinary ^.^.) or a. 'wx'iioi sequesti'ari facias, vf\\\c}\ 
 is in the nature of a levari facias, commanding him to enter intd 
 the Benefice, and hold the same till he shall have levied the 
 Judgment debt out of the tithes, rents and profits (if the Debtor 
 so long live). The Bishop, thereupon, sends out a sequestration 
 to collect the same, and, after providing thereout for the services 
 of the Church, pay over the surplus from time to time to the 
 
 {h) Pulling's Laws of the City, p. 77, 
 2nd ed. 
 
 («) Vin. Abr. "Corporation," A. (2). 
 {k) Hawkins v. Gatlrercole, 6 De G., 
 
 M. & G. 1 ; Long V. Storie, 2 De G. & 
 Sm. 308 i Bates v. Brothers, 2 Sm. & G. 
 509. 
 (/) Ibid. 339.
 
 JUDGMENTS AGAINST CORPORATIONS PROPER. 
 
 125 
 
 Creditor (m). The property is not bound till the delivery of 
 the writ to the Bishop (w). 
 
 The words "bona ecclesiastica" above mentioned, or "eccle- 
 siastical goods," seem to be used in a more extensive sense than 
 personal property, and to include rents, rent-charges, and tithes, 
 as well as oblations and obventions, to which alone perhaps the 
 term can with strictness apply (a). 
 
 On the return to an attachment against a beneficed Clerk of 
 nan inventus, and to an ordinary writ of sequestration, that he 
 had no Lay property, the Court of Chancery would, before the 
 General Order next mentioned, issue a writ of sequestrari facias 
 de bonis ecclesiasticis, directed to the Bishop of the Diocese (p). 
 But now the Judgment Creditor is at liberty to sue out of Chan- Equitable fi. fa. 
 eery, if it appear upon the return of a Ji. fa. or elegit to enforce ^^ ''°"* ^<=<=l^s- 
 payment of money directed to the Court to be paid, that the 
 Judgment Debtor is a beneficed Clerk, a writ off. fa. de bonis 
 ecclesiasticis, or sequestrari facias {q). 
 
 On sequestrations for debt, the Creditor is usually appointed Sequestration, 
 sequestrator (r) ; if no one else can be found to undertake it, the 
 Churchwardens may be obliged to accept the sequestration, and 
 if they refuse, may be cited before the Ordinary for contu- 
 macy (5). The sequestrator is bound in a Bond to the Ordinary 
 to receive and account for the profits. He may sue in his own 
 name at Law or in Equity for the recovery of payments payable 
 to the Incumbent, and if he is not the Creditor, may require an 
 indemnity from him (J). 
 
 A Judgment Creditor is entitled to an account in Equity of 
 surplus profits in the hands of a prior sequestrator (m). 
 
 If the Spiritual Parson or Vicar, being in prison, has taken Clergyman 
 the benefit of an Insolvent Act (i. e. in this case obtained his |^fthin^"*& 2 
 discharge, for a ca. sa. may issue against him on a Judgment as Vict. c. no. 
 against ordinary persons {x), except whilst performing Divine 
 service, or going thereto or returning therefrom), his Judgment 
 Creditors' rights stand thus : if he has sued out a sequestration, 
 in the manner above pointed out, before the Debtor shall have 
 
 (wj) 3 Burn's Eccles. Law (Philli- (9) 29th Consol. Ord. r. 11. 
 
 more), 9th ed. 589. (r) Hubbard v. Beckford, 1 Hagg. 
 
 (n) Archb. Pr. 1206 ; Cottle v. Vi^ar- C, R. 310. 
 
 rington, 2 Nev. & M. 227. {s) Prid. ChurcTiwdns. 327, Bth ed. 
 
 (o) See the form of 6. fa. in Chitty's (0 12 & 13 Vict. c. 67, s. 1. 
 
 forms, p. 712. (u) Cuddington t;. Withy, 2 Sw. 174. 
 
 (p) Allen I'. Williams, 2 Sm. & Giff. (.r; Archb. Pr. 724. 
 455 
 
 i7
 
 im 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 Within Pro- 
 tection Acts. 
 
 Perpetual 
 Curates. 
 
 Bishops and 
 Archbishops. 
 
 Archdeacons. 
 
 been adjudged to be discharged, though after his imprisonment, 
 his title is good against the Insolvency assignees ; and if the assig- 
 nees obtain a sequestration, as they may upon their appointment 
 without writ, or other proceeding (?/), they are Judgment Cre- 
 ditors of the Insolvent from the time of such adjudication (^r). 
 
 The Protection Acts do not contain any analogous provisions 
 in the case of Insolvent Clergymen within them. 
 
 Perpetual Curates would seem to fall under the same Law, on 
 this subject, as Spiritual Parsons and Vicars ; at least, perpetual 
 Curates of Churches augmented by Queen Anne's Bounty (a), 
 and of Churches and Chapels built under the several Church 
 Building Acts, which generally in terms constitute them " Cor- 
 porations sole." 
 
 The "charging" prohibited by the Act of Elizabeth, on grounds 
 of public policy, is of "benefices or ecclesiastical promotion(6) 
 with cure" [i. e. of souls]. Lands therefore held by Bishops 
 or Archbishops, in right of their sees — for there is no legal 
 difference between them, as to this, qua Diocesans — or by Arch- 
 deacons, in right of their Archdeaconries, not being within the 
 mischief (for they are not held in respect of cure of souls — 
 and the Bishops' possessions were originally given them as tem- 
 poral baronies) (c) are not within the prohibition. They would 
 appear, therefore, to be extendible under an elegit (d), but not to 
 be chargeable in Equity under sect. 1 3 (e). 
 
 The primitive office of an Archdeacon falls under five heads — 
 
 1. To attend the Bishop to the altar. 
 
 2. To direct the Deacons and other inferior officers. 
 
 3. To attend the Bishop at ordinations. 
 
 4. To assist him in the revenues of the Church. 
 
 5. To assist the Bishop in preaching (f). 
 
 But an Archdeaconry was declared not to be a benefice with 
 cure of souls within 21 Hen. 8, c. 18 (^), and is not included under 
 the term benefice in I 8c 2 Vict. c. 106(A), as meaning benefice 
 with cure ; and although it is within the definition of Cathedral 
 preferment in the same section, and would therefore be within 
 
 (y) 1 & 2 Vict.c, 110, s. 55. 
 (z) Bishop V. Hatch, 1 Ad. & EIL 
 171. 
 
 (a) 1 Geo. 1, St. 2, c. 10, s. 4. 
 
 (6) 13 Eliz. c. 20, s. 1. 
 
 (c) Co. Litt 134b, note (1), by Har- 
 
 grave. 
 
 (d) 3 Bac. Abr. " Execution," C. (2) 
 
 (e) See post, p. 405. 
 
 (/) 1 Burn's Eccl. Law, 93, 93 b. 
 (g) Sect. 31. 
 (h) Sect. 124.
 
 JUDGMENTS AGAINST CORPORATIONS PROPER. 
 
 127 
 
 the words of Elizabeth " ecclesiastical promotion," it would not 
 be one with cure. Its lands therefore (if any) would appear like 
 a Bishop's see, to be extendible, but for a similar reason, not 
 chargeable in Equity. 
 
 Archdeaconries may be endowed by annexing certain canon- 
 ries (li) or benefices {i) to them, or by augmentations out of the 
 Ecclesiastical Commissioners' Common Fund (J). The shares 
 of Archdeaconries, so endowed, in the capitular revenues, would 
 appear to be subject, in Equity at least, to their Judgment debts, 
 in the same way as a Canon's share is (A). 
 
 Deaneries are divided into Deaneries of the old and of the Deans, 
 new Foundation. The former being such as were founded prior 
 to Hen. 8, the latter such as he for the first time founded under 
 powers given him by Parliament. Mr. Hargrave has given us 
 probably the most learned, and at the same time condensed, in- 
 formation to be found respecting the nature of these several 
 classes of Deaneries (Z) ; but he does not refer to their posses- 
 sions. Their interest in them, however, as well as that of 
 Canons in their Canonries, as Corporations sole, as distinguished Canons, 
 from their shares in the capitular revenues, is transferred to the 
 Ecclesiastical Commissioners, for the general purposes of their 
 trust (»j); and no longer exists to raise the question, which it 
 used to raise, whether it is liable at Law and in Equity to their 
 Creditors : but their canonica or decanal portio, or share in the Decanal and 
 capitular revenues, is liable in Equity, to their Judgment and "canonica 
 other debts : for that they may mortgage and assign (n) ; but it 
 would not be extendible at Law, being a mere office of which 
 the Sheriff could not give possession (o). 
 
 A Lay Rector is a Corporation sole (p) ; Judgments against him Lay Rector, 
 are charges in Equity within 1 & 2 Vict. c. 110, s. 13 (q), and 
 legal execution may issue against the great tithes as in ordinary 
 cases. The rights of his Judgment Creditors, on his insolvency, 
 are the same as in ordinary cases (r). 
 
 The Crown is the only other Lay Corporation sole besides a The Crown 
 Lay Rector ; but its rights will be separately considered here- 
 after (5). 
 
 (A) 3 & 4 Vict. c. 113, s. 3*. Windsor, 2 Beav. 544. 
 
 (j) 4 & 5 Vict. c. 39, s. 9. (o) Ibid, note to p. 550. 
 
 (j) 3 & 4 Vict. c. 113, s. 34. {p) Wright v. Gerard, Hob. 307. 
 
 (k) See below. (j) Hawkins v. Gathercole, 6 De G., 
 
 (I) Co. Litt. 95, notes 1, 4. M. & G. 1. 
 
 (wi) 3 & 4 Vict. c. 113, s. 50. (r) Ante, pp. 86, 87. 
 
 (n) Grenfell v. Dean and Canons of (s) Post, Division HI. 
 
 i8
 
 m 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 no corporate 
 personalty. 
 
 Corporations 
 aggregate. 
 
 Ecclesiastical 
 Dean and 
 Chapter. 
 
 Lay. 
 
 Municipal. 
 
 A sole Corporation cannot have any corporate person- 
 alty (0- 
 
 As to Ecclesiastical Corporations aggregate, the only species 
 (except perhaps churchwardens) is that of Dean and Chapter ; 
 their realty can be extended at Law, as in the case of ordinary 
 Debtors. For the revenues of the Chapter were given for the 
 sustentation of the edifice of the Cathedral Church, and for con- 
 stituting and upholding a body of men to counsel and assist the 
 Bishop generally, and celebrate constantly Divine offices in the 
 Mother or Cathedral Church (u) ; not for the cure of souls within 
 13 Eliz. c. 20. But in Equity the realty would seem not charge- 
 able under s. 13 of 1 & 2 Vict., for even a lease by an Eccle- 
 siastical Corporation under the 32 Hen. 8, if substantially a 
 charge, is void (u). 
 
 As to the realty of Lay Corporations aggregate, among which 
 the Universities of Oxford and Cambridge are included, the 
 general or special Act which incorporates them usually regulates 
 and controls their Common Law power of alienation (which is 
 unlimited) (x), and therewith the extent of the interest in Equity 
 of their Judgment Creditors in such property. But at Law it 
 will be extendible without reference to any such consideration 
 until the debt be paid. Where (if ever) there is no such special 
 or general Act, their Common Law power to charge lands is the 
 measure of the liability of their real estate to their Judgment 
 Creditors in Equity under 1 & 2 Vict. c. 110, s. 13; that Act 
 expressly including Corporations (y). 
 
 The corporate personalty, if any, of Corporations aggregate, 
 Lay or Ecclesiastical — for " they may take it for the benefit of 
 themselves and their successors" (z) — is liable to a Judgment, as 
 the personalty of private individuals is. 
 
 With regard to Municipal Corporations in particular, their 
 unlimited power of alienation is restrained to a power, as to 
 their realty and chattels real, to sell or charge them, either in 
 pursuance of some agreement to be entered into prior to June 5, 
 1835 (a), or with the consent (which may be notified through 
 the Secretary to the Treasury) of three Treasury Lords (i). In 
 the former case (and also in the latter, if the consent extend to 
 
 (0 Co. Litt. 46 b. 
 («) 2 Burn's Eccl. Law, 8L 
 (t)) Post.Divis. II., Part L, Book IL, 
 Ch. I., Sect. 2. 
 
 (x) 1 Steph. Blackst. (3rd ed.), 454. 
 
 (y) Sect 121. 
 
 (z) 3 Steph. Blackst. 130. 
 
 (a) 5 & 6 Will. 4, c. 76, s. 94. 
 
 (6) 6 & 7 Will. 4, c. 104, 6. 2.
 
 JUDGMENTS AGAINST CORPORATIONS PROPER. 129 
 
 all their realty and chattels real) the rights of their Judgment 
 Creditors will be the same at Law and in Equity as those of the 
 Creditors of sole owners in fee, with an absolute power of aliena- 
 tion ; but if the consent is partial, their Judgments will, at Law 
 and in Equity, only affect that portion of the corporate property 
 to which the consent extends (c), and therefore will be postponed, 
 quoad the remaining portions, to a Creditor prior to 5 & 6 
 Will. 4, c. 76, who has proceeded to, and registered, his Judg- 
 ment subsequently. 
 
 Lands acquired by Municipal Corporations since 5 & 6 
 Will. 4, c. 7(3, are not extendible on a Judgment entered up 
 against them since that Act, on a bond executed by the old Cor- 
 poration before \i{d)\ though, in Equity, having regard to 
 6 & 7 Will. 4, c. 104, and 7 Will. 4 & 1 Vict. c. 78, such a 
 Judgment will be a charge (e) ; and the M^ords (in 1 & 2 Vict, 
 c. 110, s. 13) "for his own benefit" mean "for his own use as 
 owner '■(/), and will include the case of such Corporations, 
 though they are, in fact, only trustees of the Borough property 
 by bh(S Will. 4, c. 76, s. 92. 
 
 A Creditor who has obtained Judgment against the Guardians poor Law 
 of a Poor Law Union (who are a Corporation) (^r) for goods sup- Guardians. 
 plied to the Union, is not entitled to sue out a^i. fa. against the 
 goods or chattels of the Board of Guardians ; and if he threatens 
 to do so, he will be restrained {h) in Equity. 
 
 But it is by no means clear that, as to debts incurred within 
 the current year, the Judgment Creditor might not levy execution, 
 if he obtained a Judgment for a debt of the year {%), 
 
 Members of Lay Corporations aggregate, it is hardly neces- Corporators 
 sary to observe, possess no such separate and specific interest or °^ ^''y ^°''" 
 
 , . , -^ '■ porations ag- 
 
 share m the corporate revenues, as a claim of their separate gregate. 
 Judgment Creditors can attach against, such bodies being but 
 trustees for the purposes for which they were constituted, e. g., 
 the Universities, for the purposes of religion and learning; 
 Hospitals, for benevolent purposes; Municipal Boroughs, to 
 protect the interests, and promote the benefit, of their inhabit- 
 ants (/e); Trading Companies, for the advancement of commerce ; 
 the Bank of England, for a great public service. 
 
 (c) Arnold v. Mayor and Corporation Brecon v. Seymour, 7 W. R. 380. 
 of Gravescnd, 4 W. R. 763. (/) 2 Kay & J. 585, 586. 
 
 {d) Arnold v. Ridge, 22 L. J. (C. P.) {g) 5 & 6 Will. 4, c. 69, s. 7. 
 
 235; S. C. 13 C. B. 775. ('0 Att.-Gen.z;.Wilkinson, 7\V.R.301. 
 
 (e) Arnold v. Mayor, &c. of Graves- {i) Ibid, 
 
 end, 2 K. & J. 574 ; Mayor, &c, of (A-) 5 & 6 Will. 4, c. 76, s. 92. 
 
 K
 
 130 
 
 JUDGMENTS AGAINST SEVERAL. 
 
 Eleemosynary 
 Corporations. 
 
 Fellowsliips. 
 
 Dissolution. 
 
 The same remarks are applicable, mutatis mutandis, to Elee- 
 mosynary Corporations aggregate, as Colleges and Hospitals, as 
 to Ecclesiastical Corporations aggregate generally. Law will 
 extend their lands for their Judgment debts ; but Equity will 
 not charge them, for the Statute Law {I) subjects their power of 
 alienation to the same restrictions as in the case of Ecclesiastical 
 Corporations aggregate, viz., to grants not by way of charge (m), 
 for twenty-one years, or three lives. 
 
 The separate interest of a Fellow, on the other hand, in the 
 corporate revenues of the College is liable, in Equity, to his 
 Judgment debts (w) ; for, not being property within the purview 
 of 13 Eliz. c. 20, it is assignable either absolutely or by way of 
 security ; but it is not extendible at Law (o). 
 
 The term Dissolution, in the sense in which it has been 
 applied to un-incorporate, and quasi-corporate partnerships, will 
 not apply to Corporations proper. 
 
 They may, however, be dissolved, and that either by Act of 
 Parliament, or (if a Corporation aggregate) by the death of all 
 its members, or a reduction of them below the number required 
 for the validity of its corporate proceedings, or by surrender of 
 its franchises, or by forfeiture of its Charter through negligence, 
 or abuse of its privileges. 
 
 In the event of a dissolution of a Corporation aggregate, all 
 the debts either owing to or from it are entirely extinguished (/>). 
 But if the rights of the old Corporation be granted over again, 
 by a new Charter and to a fresh set of grantees, so that the new 
 grant operates as a revival of the old one, the new Corporation 
 would be liable to the debts of the old one, and would also be 
 entitled to its rights of action {q). 
 
 (l) 13 Eliz. c. 10 ; 14 Eliz. cc. 11, 14; 
 18 Eliz. c. 11; 43 Eliz. c. 29. 
 
 (m) Post, p. 405. 
 
 (n) Feisteli;. King's College, 10 Beav. 
 499. 
 
 (o) 2 Beav. 550 (n). 
 (p) Edmunds v. Brown, 1 Levinz, 
 237. 
 
 (q) Grant on Corporations, 304.
 
 ( 131 ) 
 CHAPTER III. 
 
 JUDGMENTS BY SEVERAL. 
 
 Section 1. 
 Solvent Judgment Creditors. 
 
 1. Husband and Wife. 
 During Joint Lives. 
 
 At Law. 
 
 In Equity. 
 After Death of One. 
 
 tVife Survivor. 
 
 Husband Survivor. 
 
 2. Joint Judgment Creditors, being Unin- 
 corporate Partnerships, or not Partners. 
 
 During the Joint Lives. 
 After Death of One. 
 
 3. Quasi-Corporate Partnerships. 
 
 Rights unaffected by Deaths. 
 
 4. Corporations Proper. 
 
 Remedies of Elegit Debtor. 
 
 Wife. 
 
 Lives. 
 
 1. Husband and wife. j 
 
 Where the action has been proceeded with to Judgment by Husband ami 
 the wife alone, as it may be, execution may be issued by the 
 authority of the husband, without a writ of revivor or sus- 
 gestion (a). 
 
 On a Judgment by both, the execution against the Debtor is 
 the same as in ordinary cases {b). 
 
 On a Judgment du7n sola, an action by both on the Judgment During Joint 
 would seem the proper mode of enforcing it(c). Mr. Justice 
 Crompton has said, " the section (141) seems inapplicable where 
 Judgment was signed before the marriage" ((^); although Mr. 
 Archbold considers that the proceedings to revive the Judg- 
 ment may be by sci. fa. under s. 132, or by writ of revivor 
 or suggestion under s. 129(e). A sci. fa. by the husband and 
 wife was the mode of reviving it prior to the Common Law 
 Procedure Act (/). But it is to be observed, that the sci. fa. 
 allowed to the husband by s. 132 is where the Judgment is 
 for a wife, which a Judgment dum sola stx'ictly is not. 
 
 They must both sue in Equity where the original Judgment 
 is by both ; and also where the Judgment is by both in an action 
 on a Judgment dum sola. Where the action has been proceeded 
 with to Judgment by the wife alone, she is a necessary party to 
 the suit, as she is in all suits to recover her choses in action, and 
 is the proper party to sue((if); nor could the defendant object 
 
 (fl) C. L. P. Act, 1852, s. ML 
 {b) Archb. Pr. 117.';. 
 (c) Morris v. Coates, 25 L. T. 176. 
 \d) Ibid. 
 
 (e) Arcbb. Pr. 1066. 
 
 (/) 2 Saund. (Wms.) 72(1.) 
 
 {g) Calvert on Parties, 412. 
 
 K 2
 
 132 JUDGMENTS BY SEVERAL. 
 
 to the husband joining her as co-plaintifF(A), though it would 
 be enough to make him a defendant. Her Equity to a settle- 
 ment attaches to a Judgment, which she enforces in Equity (i). 
 
 Much depends, as to the reduction of the wife's debt into 
 possession by the husband, upon whether she be a party to the 
 proceedings at Law or in Equity. Legal execution, issued by 
 the husband on the wife's Judgment, would be such an alteration 
 of the property. But if execution had not issued, the mere 
 commencement of a suit by them in Equity would not have that 
 After death effect. Accordingly, the benefit of a Judgment by both will 
 of Husband. gurvive to the wife surviving, if the husband die before exe- 
 cution, and she may have a sci. fa. upon it {i. e. now, revive it 
 according to s. 129), and proceed on it at Law or in Equity, as 
 if she had been sole. So, also, the benefit of a decree or order 
 for payment of money obtained by both {k) will survive to her 
 surviving ; but if the Judgment were obtained by, or the decree 
 or order were for payment to, the husband alone, his personal 
 representative would be entitled (Z), because the recovery of the 
 Judgment in his own name alone " was {m) a disagreeing on 
 his part to the wife's interest." 
 Of Wife. If the wife die before execution, the benefit of a Judgment by 
 
 both will survive to the husband jure mariti, and he may sue out 
 execution in the name of himself and his wife without a sci. fa., 
 for the nature of the debt is altered by the Judgment, and it is 
 become a debt due to him {n). So where, prior to the Common 
 Law Procedure Act, 1852, the husband and wife issued a 
 sci. fa. on a Judgment by her dum sola, and execution was 
 awarded, and then the wife died, he alone might have had a 
 sci. fa. (o). 
 
 If the husband has survived the wife, but has not been made 
 a party to the Judgment during her life, (e. g., where she has 
 proceeded to Judgment alone under s. 141, or the Judgment was 
 dum sola,) he must take out administration to her before reviving 
 the Judgment, and if he dies before so reviving it, administration 
 must be taken out to the wife, and such administrator will take 
 the property in Equity, as trustee for his representative (/>). 
 
 (h) Dan. Ch. Pr. (Headlam), 105. 677- 
 
 (i) 1 Bright's H. & W. 231. (») 2 Saund. 72 (m.) 
 
 (k) Ibid. 67, et seq. (o) Woodyer v. Gresham, 1 Salk. 116. 
 
 {I) Oglanderu. Baston, 1 Vern. .396 ; (p) Betts v. Kimpton, 2 B. & Ad. 
 
 but see Bond v. Simmons, 3 Atk. 21. 276. 
 (m) Garforth v. Bradley, 2 Ves. sen.
 
 SOLVENT JUDGMENT CREDITORS. 133 
 
 2. Solvent Creditors, who are not partners, or who are unin- 2. 
 
 Unincorpo- 
 
 corporated partners. rated partner- 
 
 Durinp- all the ioint lives anv may issue execution in the usual ^^^P^- °^ "°"" 
 
 . . . partners. 
 
 way: but it shall tbllow the Judgment, i. e., be sued out in the Durino- Joint 
 names of all the plaintiffs (q). Lives. 
 
 In Equity they must all sue, unless inconveniently numerous. 
 If any one refuse to sue, it will be enough if he is made a de- 
 fendant (r). 
 
 At Law the Judgment survives, so that the surviving Creditor After death of 
 or Creditors may proceed with his or their legal remedies, and 
 may, if the death is within six years of the Judgment, sue out 
 execution, without reviving the Judgment, and the execution on 
 it should issue in the names of all, including the deceased (5). 
 And the survivor may at Law pursue his legal remedies, and keep 
 the fruits of them, without any liability to the representatives of 
 the deceased. 
 
 The cause of suit survives also in Equity ; so that, if the death 
 happen before suit, the survivors should sue alone, but shall be 
 deemed, at least in partnership and such like cases (t), trustees 
 for the representatives of the deceased. So if the death happen 
 during the suit, as the survivors can sustain it (u), having still 
 among them the whole interest, the suit shall not abate. 
 
 3. Quasi-Corporations. 3. 
 
 This class of partnerships has the privilege, generally, either porae Partner- 
 under their Special or a General Act, of suing and taking pro- ^•''P^- 
 ceedings at Law and in Equity, as total Corporations ; i. e., in 
 
 their corporate name {w) : and where that privilege is not expressly 
 accorded to them, as it is not to Companies within the Joint 
 Stock Acts, 1856, 1857 {x), it follows, as a necessary element of 
 the corporate character which they have acquired; and the 1 &2 
 Vict. c. 110, includes bodies corporate (?/). Their rights therefore Rights not 
 remain unaffected by the deaths of individual corporators, and so jeaThr' ^^ 
 do their remedies, since that circumstance does not, any more than 
 a corporator's Bankruptcy, work a Dissolution ; whilst as to Com- 
 panies within 7 & 8 Vict. c. 110, i.e., now Insurance Companies 
 
 (7) 2 Saund. (Wms.) 72 (1.) {u) Mitford's Plead, in Cii. (5th ed.), 
 
 (r) Wilkinst). Fry, 1 Mer.262; Story 71, and note; Boddy v. Kent, 1 Mer. 
 
 on Partu. 344. 364. 
 
 {s) Rolt V. Mayor of Gravesend, 7 {w) See post. Part I., Book II. 
 
 C. B. 777 ; 15 & 16 Vict c. 76, s. 128. (j) 19 & 20 Vict. c. 47, s. 13. 
 
 (0 Jeffreys t;. Small, 1 Vern. 217; (y) Ibid. s. 121. 
 Morley v. Bird, 3 Yes. 631.
 
 134 JUDGMENTS BY SEVERAL. 
 
 only, their Deed of Settlement must contain all the causes of dis- 
 solution (z). Therefore, whether during the joint lives or after 
 any of the deaths, the Corporation (not having been wound up) 
 may proceed to issue execution at Law, or to sue in Equity, 
 upon their Judgment, as if no death had occurred. 
 
 *•. 4. The same, for the same reasons, is the Law with regard to 
 
 Coqiorations i i • ? 
 
 Proper. such partnerships as are, to all intents and purposes, Cor- 
 
 porations. 
 
 Remedies of Before I 8c 2 Vict. c. 110, the Judgment Debtor could, and 
 
 still can, recover the land from the elegit Creditor, after satisfac- 
 tion, by a suit in Equity. That Act also gives the Courts of 
 Law an equitable jurisdiction in such a case ; for it expressly 
 subjects the Creditor to such account in the Court out of which 
 execution issued, as he was previously subject to in Equity (a). 
 This the Common Law Court effects by referring it to a Master 
 to calculate the profits received, and by ordering delivery of 
 possession to the Debtor (b). The Debtor may also proceed at 
 Law to recover possession by sci.fa. or ejectment (c) : whence 
 it would appear that on payment the legal estate revests, ipso 
 facto, in the Debtor, so as to support an ejectment. 
 
 Section 2. 
 Joint Judgment Creditors Bankrupt or Insolvent, or Wound up. 
 
 1. Not Partners. 
 
 On Separate Bankruptcy or Insol- 
 vency. 
 
 2. Un-incorporated Partners. 
 
 Joint Bankruptcy. 
 Separate Bankruptcy. 
 Separate Insolvency, 
 
 3. Corporations Proper. 
 
 4. Quasi- Corporate Partnerships. 
 
 Companies within Joint Slock Acts, 
 
 1856, 1857. 
 Companies within Winding-up Acts, 
 1848, 1849. 
 
 Present State of Masters in 
 Chancery. 
 Companies within 1 8f ^ Vict, c. 111. 
 Companies within 9^10 Vict. c. 28. 
 
 1 
 
 Creditors not 
 
 If one of several Judgment Creditors, not in partnership, be- 
 come Bankrupt or Lisolvent, (as on a Judgment by joint cove- 
 Partners, nantees not in partnership,) the solvent Judgment Creditor and 
 the Insolvency or Bankruptcy Assignees may revive the Judg- 
 ment according to the Common Law Procedure Act, \S52{d), 
 and may issue joint execution (i. e., either they or he alone may 
 issue it, though it must be joint in form). 
 
 (z) 7 & 8 Vict. c. 110, s. 7. (c) Archb. Pr. 636. 
 
 (a) Ibid. s. 11. (d) Sect. 129, etseq.. 
 
 (6) Price v. Varney, 3 B. & C. 733.
 
 JUDGMENT CREDITORS BANKRUPT, ETC. 
 
 135 
 
 The solvent Creditor and all, or some of the Assignees, (ac- 
 cording to the distinctions pointed out in a future part of this 
 work (e),) should join as co-plaintiffs in Equity : if he or they 
 refuse, they should be made defendants. If the Bankruptcy or Separate 
 Insolvency happen during suit, an order to the effect of an insolvency, 
 order to revive will be necessary. 
 
 2. Un-incorporate Partners. Un-inLporate 
 
 (i.) Partners in trade. Partners. 
 
 On the Bankruptcy of the firm its rights, as a Judgment Joint Bank- 
 Creditor, are the same as those of a sole Judgment Creditor 
 Bankrupt. 
 
 If a partner becomes Bankrupt, the Court of Bankruptcy may Separate, 
 direct his Assignees to sue in Equity on the joint Judgment in 
 their own name and in that of the solvent partner, and to issue 
 execution jointly with him ; if, indeed, such a proceeding is (as 
 it would seem to be) the " prosecution of an action." Upon 
 such direction being obtained, the execution or suit proceeds as 
 if the Creditor were not Bankrupt (/). 
 
 (ii.) As to the Insolvency of a partner not in trade, the rights Separate 
 of the Provisional and Creditors' Assignees, and of the solvent "^° vency. 
 partners, are the same as those of the Assignees of a joint Judg- 
 ment Creditor Insolvent, not a partner. 
 
 There being no such thing as the Bankruptcy or Insolvency 3. 
 
 of total Corporations, we need only remark, that as regards the Proper, 
 separate Bankruptcy or Insolvency of individual corporators in 
 such Corporations, the rights of such Corporations, as Judgment 
 Creditors, remain unaffected by those circumstances ; which 
 afford no ground for Dissolution, as in ordinary partnerships. 
 
 As to Judgments by Quasi-corporate partnerships, on their 4. 
 
 winding up or Dissolution (following the same division as in p"rrte Part- 
 Judgments against such Companies); if the Company be within nerships. 
 the Joint Stock Acts, 1856, 1857, the Official Liquidators, if it within Joint 
 has been wound up compulsorily, with the sanction of the ^g^^ ^^^^' 
 Court, and the Company's Liquidators, without such sanction, if 
 it has been wound up voluntarily, or with the sanction of the 
 Court if an order has been made for continuing {g) its voluntary 
 winding up, may sue in Equity, or sell the debt by private con- 
 tract or public auction, or compromise it (/<). 
 
 The Official or Company's Liquidator's power to issue execu- 
 tion is not expressly given them ; but it is presumed it would be 
 
 (f) Post, Book II., Ch. II., Sect, 6. (.,') 20 & 21 Vict. c. 14, s. 19. 
 
 (/) 12 & 13 Vict. c. 106, s. 152. (/<) 19 & 20 Vict. c. 47, ss. 90, 104. 
 
 K 4
 
 136 
 
 JUDGMENTS BY SEVERAL. 
 
 Within Wind- 
 ing-up Acts, 
 1848, 1849. 
 
 Present state of 
 office of 
 •' Master." 
 
 Companies. 
 
 a *' legal proceeding," such as they are empowered to " bring," 
 on behalf of the Company (k). 
 
 As to Companies subject to the Winding-up Acts, 1848, 
 1849 (/). On the appointment of an Official Manager, all the 
 Judgment debts due to the Company vest in him (m), unless the 
 Master otherwise direct: and all proceedings at Law or in 
 Equity for their recovery must be taken by him, by leave of the 
 Master (n), and he may, with the same leave, compromise any 
 such debt (o), or any suit which may have been brought by him. 
 
 The Mastership of the Court of Chancery having been fre- 
 quently referred to, and being an important office in the working 
 of the Winding-up Acts, 1848, 1849, and various alterations 
 having since been made in that office, it will be as well here to 
 state how it stands at the present time. 
 
 The office was abolished on June 30, 1 852 (p), so that the 
 inquiry is material only as to Masters then in office, whose office 
 was not then immediately abolished : two of these were released 
 from their duties on November 2, 1852, and the Lord Chancellor 
 was empowered to release, from time to time, any of the other 
 then existing Masters, as they could be spared, according to 
 their seniority in office (q). And no references were to be made 
 after NovemJber 2, 1852, to any of the then existing Masters, 
 except the Court thought it expedient in consequence of some 
 previous Reference to them in the matter, and except as to their 
 Jurisdiction under the Winding-up Acts, 1848, 1849, (which was 
 preserved,) and the Masters remaining from time to time were 
 alone to proceed with all business in such excepted and other 
 cases (r). And the power and office of the Masters thus 
 gradually abolished was transferred to the Master of the Rolls and 
 Vice-Chancellors at Chambers (s), and to the two Chief Clerks 
 of each of their Courts. The then Accountant-General's rights, 
 as a Master, were preserved, but no future Accountant-General 
 was to be one ; and the attendance of no Master on the House 
 of Lords was to be released without an order of the House (t). 
 But now all causes, matters, and things depending before the 
 remaining Masters are ordered to be proceeded with before the 
 Judges of the Court of Chancery (u) ; so that the office of Master 
 may now be said to be wholly and entirely abolished (v). 
 
 As to Companies within 7 & 8 Vict. c. Ill, and 8 & 9 Vict. 
 
 (k) 19 & 20 Vict. C.47, ss. 90, 104. 
 
 (I) As to what arc, Ch. II., Sect. 4. 
 
 (m) 11 & 12 Vict. c. 45, s. 29. 
 
 («) Ibid.s. 60. 
 
 (o) Ibid. s. 55. 
 
 (p) 15 & 16 Vict.c. 80, 8. 1. 
 
 (7) Ibid. s. 3. 
 
 (r) Ibid. s. 10. 
 
 (s) Ibid. s. 36. 
 
 (0 Ibid. s. 10. 
 
 (m) Gen. Ord. 23 Aug. 1860. 
 
 (»;) See Preamble to 23 & 24 Vict. 
 
 149.
 
 JUDGMENT CREDITORS BANKRUPT, ETC. 137 
 
 c. 98, the former Act having assimilated proceedings in Bank- within 7 & 8 
 ruptcy under it, as nearly as possible, to the then ordinary pro- ^^^ 8 & 9 Vict, 
 ceedings in Bankruptcy, the Assignees of such Companies may, c. 98. 
 it is presumed, proceed at Law and in Equity against Judgment 
 Debtors of the Company, as Assignees of sole Judgment Creditors 
 Bankrupt may under the present Bankrupt Act, though passed 
 subsequently to the 7 & 8 Vict. ; unless the winding up of the 
 Company has been sent to Chancery by the Bankruptcy Court, 
 in which case their rights will be according to the Winding-up 
 Acts (w). 
 
 The same is Law with regard to Companies, within 9 & 10 Companies 
 Vict. c. 28, who have resolved that the Companies' Dissolution vkt!". 28. 
 shall be an act of Bankruptcy, or against whom a fiat in Bank- 
 ruptcy (now a petition) shall have been presented by three Com- 
 mitteemen or any Creditor. If the Company has resolved other- 
 wise, their winding up shall be according to the rules applicable 
 to the Dissolution of (ordinary) partnership undertakings, subject, 
 however, to their liability to be brought within the Bankrupt 
 Law, on any such petition (x). 
 
 (m) 7 & 8 Vict. c. Ill, s. 20 ; 8 & 9 {x) 9 & 10 Vict. c. 28, s. 24. 
 
 Vict. c. 98, s. 19.
 
 ( 138 ) 
 
 Book II. 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 CHAPTER I. 
 
 SPECIALTY DEBTS. 
 
 Section 1. 
 Bonds and Covenants. 
 
 1 . Judgments and other Debts distin- 
 
 guished. 
 
 2. Heads of Inquiry. 
 
 3. What a Specialty Debt is. 
 
 4. Wliat a Bond is. 
 
 Single. 
 
 With Condition. 
 
 Impossible. 
 
 Illegal. 
 
 Immoral. 
 The Penalty. 
 Liquidated Damages. 
 4^5 Ann. c. 16. 
 8 4-9 Will. 3, c. 11. 
 Specific Performance of Condition. 
 Considerations. 
 
 5. Bonds in restraint of Trade or Alar- 
 riage. 
 
 6. Resignation Bonds. 
 
 7. Post Obits. 
 
 8. Bottomry Bonds. 
 
 9. Bail Bonds. 
 
 10. Replevin Bonds. 
 
 11. Debentures. 
 
 12. Voluntary Bonds. 
 
 13. Fraudulent Bonds. 
 
 14. Lost Bonds. 
 
 15. What a Covenant is. 
 
 Voluntary. 
 
 For further Assurance. 
 
 With Penalty. 
 
 Within 8 <^ 9 Will. 3, c. 11. ' 
 
 16. Stamps. 
 
 1. 
 
 Judgment and 
 other Debts 
 distinguislied. 
 
 So long as a debt remains a Specialty or Simple contract debt, 
 that is, is not promoted to the rank of a Judgment, it confers, 
 during the Debtor's life at least, no right against his property, 
 but the right only to sue him ; and this, generally, at Law only. 
 
 This is the characteristic distinction between those classes of 
 debts and Judgments. It is on this principle that a " purchaser 
 for value from a Bond Debtor is not affected by notice of the 
 bond, for he is to look no further than his title ; and it is no 
 part of his title till placed on the land by a Judgment" (a); or, 
 in the language of the late Sir L. Shadwell, " an ordinary pro- 
 missory note may be made, in a circuitous way, to affect the land 
 of the party liable to pay the money due on it, because the 
 holder may obtain a Judgment in an action against the drawer, 
 and may take his land in execution ; but no one would call such 
 a security a charge on the land" {h). 
 
 (a) 4 Cruise's Dig. 93 (4th ed.) 
 
 {b) Myers v. Perigal, 16 Sim. 542.
 
 BONDS AND COVENANTS. 
 
 139 
 
 The subiect of debts, or engagements in the nature of debts, Femes covertes 
 M, , -11 .11 . Debtors, 
 
 of a feme coverte, will be considered presently, when we come to 
 
 consider the case of ^^ Femes covertes Debtors " (c). 
 
 To pursue minutely the mode of enforcing a specialty, or simple 
 contract debt, would be to go verbatim through the Common 
 Law Procedure Acts, 1852, 1 854 & 1 860, and the rules grounded 
 on them, (which now contain, principally, the practice of the 
 Superior Common Law Courts) {d), and the various New County 
 Court Acts and their Rules (which establish the mode of 
 proceeding for small debts). For that information the reader is ^ 
 
 referred to those Acts. It is my object rather to present him Heads of 
 with a general outline of the circumstances, which will de- l"iu»"es. 
 termine — 
 
 ( i.) His right to sue at all. 
 (ii.) The time within which he must sue. 
 (iii.) The Court in which to sue. 
 
 (iv.) The persons whom, or in conjunction with whom, he 
 must sue. 
 Questions which it is obvious he must put to himself and 
 answer, before embarking on his voyage of litigation. g 
 
 And first of Specialty debts, or debts by special contract. What is a 
 The essence of such a debt is, that it is a debt (e) (as previously ^^^l^ '^ 
 defined) resulting from a written instrument under seal, and 
 delivered (/), and thence called a Specialty or Special Contract. 
 A contract is, by the Civil Law {g), an agreement, by which two 
 parties reciprocally promise and engage, or one of them singly 
 promises and engages to the other, to give some particular thing, 
 or to do, or abstain from doing, some particular act. And it 
 has been defined by the author of a well-known English text- 
 book on Contracts f^), as denoting, in our Law, every description 
 of agreement, obligation, or legal tie, whereby one party binds 
 himself, or becomes bound, expressly or impliedly, to another to 
 pay a sum of money; or to do, or omit to do, a certain act; 
 though the term " agreement" is rarely used by us, except in 
 relation to contracts not under seal. 
 
 No mutuahty of stipulation between the special contractor 
 and contractee seems necessary, as in the case of a simple con- 
 tract (i), and the assent, therefore, of the contractee cannot be 
 
 (c) See post, Ch. III., Sect. 4. {g) Pothier on Obligations (Evans), 
 
 (rf) Post, Appendix, Table of Courts- vol. i. p. 4. 
 
 (e) Ante, p. 2. (/i) Chitty on Contracts (5th ed.), 4. 
 
 (/) 3 Jam. Byth. (Sweet), 2G8. (i) Ibid. 
 
 k6
 
 140 
 
 SPECIALTY DEBTS. 
 
 What a Bond 
 is. 
 
 Sinsrle. 
 
 With a Condi- 
 tion. 
 
 necessary, whether the specialty relate to land or property or 
 not ; or rather, the assent will be presumed (A), by intendment 
 of Law, in all assurances. If this is correct, the definition given 
 by Mr. Stephen (in lieu of that given by Sir W. Blackstone) of 
 a contract, viz., that it is an agreement where a promise is made 
 on one side and assented to on the other, seems hardly large 
 enough for a special contract (/). And still less need it relate to 
 property in order to be a specialty. A promise by deed is a 
 voluntary special contract. Delivery is, as has been said, essential 
 to a specialty ; but a delivery by words without touch, or by touch 
 without words {m), is sufficient ; nor need it be delivered to the 
 party who is to take by it, or to any other person for his use (n). 
 
 A common seal affixed to the deed of a Corporation is tanta- 
 mount to a delivery (o). 
 
 The acceptance by the Creditor of a special security for his 
 debt merges a previous debt, in respect of the same matter, by 
 simple contract (p). 
 
 The principal Specialty debts, which I shall consider, are 
 Bonds, Covenants, Rent — though this is a specialty even if 
 reserved on a demise not under seal (5-)— and Policies. 
 
 A Bond is a Deed Poll (r), which, as distinguished from an 
 Indenture, (or Deed Indented,) is a deed cut in a straight line, 
 and a declaration by one person (rather than an agreement between 
 two) respecting an agreement made by him with some other (s). 
 It must be printed or written (though not necessarily on parch- 
 ment or in ink), sealed and delivered by the debtor (t), thence- 
 forth called the " obligor" — the Creditor (thenceforth called the 
 " obligee") need not seal or deliver it — with or without a con- 
 dition : in the latter case it is called a " single" Bond (u). The 
 obligor need not sign it (a;) generally ; but a " single" Bond, if to 
 pay money after a year from the date, must, according to a well- 
 known writer, be also signed by him (y). 
 
 A " Condition," which may be defined as a " quality annexed 
 to a personal contract or agreement" (2;), is a clause usually added 
 to the Bond, and for the benefit of the obligor, to the effect that 
 if the person named in the " Condition" — generally the obligor — 
 
 (/f) Com. Dig. " Fait," F. 2, n. (a). 
 
 (0 2 Blackst. (Steph.) 49. 
 
 (m) Co. Litt. 36 a. 
 
 (?/) Smith on Contracts, 7. 
 
 (o) Com. Dig. " Fait" (A. 3). 
 
 (p) Luke V. Ahlerne, 2 Vern, 31. 
 
 (q) Post, Sect. 2. 
 
 (r) 4 Cruise's Dig. 91. 
 
 (s) Ibid. p. 8. 
 
 (0 Ibid. pp. 24, 91. 
 
 (m) Wms. P. P. 98. 
 
 (a-) 4 Cruise's Dig. 91. 
 
 (y) 3 Jarm. Byth. (Sweet), 270. 
 
 (a) 2 Bac. Abr. 108, tit. " Condition.'
 
 BONDS AND COVENANTS. 141 
 
 shall do a certain act therein specified, the Bond shall be void. The 
 Condition of a money Bond {i. e., of one given to secure the repay- 
 ment of money on a given day, or by instalments, or otherwise), is 
 usually, that upon payment on a given day by the obligor, or his 
 heirs, executors or administrators, to the obligee, his executors, 
 administrators or assigns, of a sum of money therein named — 
 being half the sum named in the penalty, with interest after a 
 given rate— the rate of interest cannot now be usurious (a) — the 
 bond shall be void, otherwise that it shall remain in force. 
 
 The Condition may be an impossible one. If impossible at Condition 
 
 ^ . 1 /-I T • impossible. 
 
 the time, as to go from London to Rome m a day, the Condition 
 is void and the obligation good. It is the same as if there were 
 none at all (6): for it is the folly of the obligor to enter into 
 such an obligation from which he can never be released. If 
 possible at the time, but it has since become impossible by the 
 act of God, of the Law, or of the obligee, the obligor will be 
 excused at Law, but Equity will decree execution of the agree- 
 ment (c). 
 
 Or the Condition may be to do an illegal or immoral act. If "legal or Im- 
 
 morB.1 
 
 illegal at the time — at least if to do a thing malum in se — or if 
 legal at the time, but afterwards rendered illegal {d), or if to 
 do an immoral act (e), the Bond is void, and the obligor dis- 
 charged!/). 
 
 The "Penalty" is the penal part or body of the Bond, speci- The Penalty, 
 fying the amount for which the Debtor is bound, and which is 
 generally double the sum advanced to him, and intended to be 
 secured {g). The use of the word " penalty," however, will not 
 prevent the whole sum from being recovered as "liquidated" or 
 ascertained damages, if such was the intent. The question 
 whether the sum shall be considered a " penalty " or " damages," 
 depends partly on the meaning of the parties, to be collected 
 from the face of the contract; and partly on the principle now 
 imported into the Courts of Common Law by the statutes of 
 William and Anne, presently to be mentioned, whereby a man 
 is prevented from recovering more than is actually due to him. 
 
 Where the case is ascertained, by the above tests, to be one Liquidated 
 of "liquidated damages," the Creditor, on proving a breach, '^'^^ges. 
 is entitled to Judgment and to execution for the whole sum 
 mentioned; the settlement of its amount by the parties them- 
 
 (a) 17 & 18 Vict. c. 90. (e) Fores v. Johnes, 4 Esp. 95. 
 
 (6) Co. Litt. 206 a. (/) Co. Litt. 206 b. 
 
 (c) Eq. Ca. Abr. 18(8). (g) Wms. P. P. 98. 
 
 {d) Co. Litt. 206 b. 
 
 k7
 
 U2 
 
 SPECIALTY DEBTS. 
 
 4&5Ann.c.l6. 
 
 selves superseding the exercise of the discretion C^), presently 
 mentioned, of the jiay to assess damages, and relieving the ob- 
 ligee from confining his execution to the amount of the damages 
 so assessed. 
 
 A bond is either a money bond, or to do other acts(i); 
 though strictly, it is the acknowledgment of a debt (k) ; and 
 therefore, according to our former definition of a debt (/), relates 
 to money only. 
 
 Where the condition is not performed, the Bond becomes for- 
 feited and absolute at Law, and the penalty used to be the legal 
 debt : but now (m), where an action is brought upon ariT/ Bond, 
 the condition whereof is to pay a sum at a day or place certain, 
 the payment of the principal and interest named in the Condition 
 is a good payment at Law, though not made strictly according 
 to the Condition ; and so, if the defendant shall, during an action 
 on such a Bond, bring into the Court, where he is sued, the 
 principal, interest and costs (w). He may also pay into Court, 
 (and plead the payment,) a sum sufficient to answer the claim (o). 
 
 Nor can the Creditor recover, at Law(p) or in Equity (9), 
 more than the penal sum, though the arrears of interest exceed 
 it, unless (and then only in Equity) there are special circum- 
 stances (r) ; or unless the action be one on a Judgment (whether 
 home or foreign) recovered on a Bond (s). 
 8 &9 Will. 3, If the action be on a Bond or any penal sum /or nonperform- 
 ance of any covenant or agreement in any indenture or writing, 
 the plaintiff must (t) assign such breaches as he shall think fit, 
 and the jury shall assess damages for such of the breaches so 
 "assigned" as he shall prove; and the Judgment shall stand 
 as a security for all future breaches ; but execution shall issue 
 only for the breaches (u) assigned and proved ; and if Judgment 
 be for the plaintiff on demurrer, confession, or nihil dicit {v), the 
 plaintiff shall " suggest" breaches, and a writ of inquiry shall 
 issue to the Sheriff to assess them (a;). 
 
 The Act last referred to comprises Bonds for the payment of 
 money by instalments, or of an annuity, or for the performance 
 of an award, or of any other specific act ; but not Bonds for the 
 
 (;*) 2 Blackst. (Steph.) 106. (q) Clarke v. Seton, 6 Ves. 415. 
 
 (0 Wms. P. P. 99. (r) Grant v. Grant, 3 Sim. 364. 
 
 (/i) 3 Jarm. Byth. (Sweet), 268, n. (a.) (s) M'Clure v. Dankin, 1 East, 436. 
 
 (/) Ante, p. 2. (t) 2 Bac. Abr. "Covenant," 369. 
 
 (»)) 4 & 5 Ann. c. 16, s. 12. (u) 8 & 9 Will. 3, c. 11, s. 8. 
 
 (n) Ibid. s. 13. (v) What is, ante, p. 8. 
 
 (o) 23 & 24 Vict. c. 126, s. 25. (x) 8 & 9 Will. 3, c. 11. 
 (p) Wilde V. Clarkson, 6 T. 11.303. 
 
 11.
 
 BONDS AND COVENANTS. 143 
 
 payment of money in gross at a given time, or other money 
 Bonds, (these being provided for by the Act of Anne) {y), or any 
 Bond vv^here the damages, to be assessed by the jury, will satisfy 
 the entire condition of the Bond (z) ; for, as to them, there is no 
 necessity for the Judgment to remain as a security. Before this 
 Act, the Creditor, by specialty within it, might have taken out 
 execution for the whole penalty, and the Debtor could only 
 obtain relief by resorting to Equity. 
 
 But now, under the effect of one or other of the Acts (of Will, 
 or Anne), the original Jurisdiction in Equity to relieve the obligor, 
 though not taken away — for the subsequent admission into the 
 Courts of Common Law of a concun-ent equitable Jurisdiction 
 has not that effect (a) — is virtually superseded, and no case seems 
 likely to arise where a resort to it would be found necessary (h). 
 
 Suppose a Bond with a condition to repair, execution would 
 issue at Law only for the breach proved : is not this an answer 
 to Mr. J, Story's query "whether, in such a case. Equity would 
 refuse after a breach to interfere to prevent the recovery of the 
 penalty ?" (c) for, as to staying the Judgment, there would seem 
 no Equity to prevent its standing as a security for future 
 breaches. 
 
 The condition of a Bond may, however, amount to an agree- Specific per- 
 ment, the specific performance of which, if for value, Equity *^°'^™^"'^^- 
 would decree (cZ); and the Court of Common Law may enforce 
 the fulfilment of any duty in which the plaintiff is personally 
 interested, by mandamus {e). But this branch of the subject ap- 
 pertains to a treatise on Contracts rather than on Debts. 
 
 The Condition is to be distinguished from the consideration of Consideration. 
 a Bond, though they are often mixed up. The Condition is of 
 course always apparent on the face of it ; not so the considera- 
 tion, though (if there be one) it is usually recited in it. If it is 
 not, it may be pleaded (/) and proved aliunde — and that by parol 
 evidence — that the Bond was grounded on an illegal or inmioral 
 consideration, as that the debt was a gaming debt, or obtained by 
 fraud, or that it was contracted under duress— notwithstandins 
 the general rule of Law which estops a party to a deed from 
 contradicting it — on the ground of public policy. 
 
 (y) Viz. 4 Ann. c. 16, ss. 12, 13; 909. 
 
 Smith V. Bond, 10 Bingh. 125. (c) 2 Eq. Jur. 781, n. (1), 6tli ed. 
 
 {z) Archb. Pr. 9'1'4. id) Eq. Ca. Abr. 18 (8). 
 
 (rt) ,5 Bac. Abr. " Obligation," 821. {e) C, L. P. Act, 1854, s. GS. 
 
 (6) 2 White & Tudor's L. C. (2nd ed.) (/) 5 Bac. Abr. " Obligation," 820.
 
 144 
 
 SPECIALTY DEBTS. 
 
 Bonds in re- 
 straint of 
 Trade, or 
 Marriage. 
 
 Marriage bro- 
 cage Bonds. 
 
 Under Illegal Bonds must be reckoned those given for money, 
 or other valuable thing, lost by playing at cards, dice, tables, 
 tennis, bowls, or other game or games whatsoever (horse-racing 
 is within the prohibition) (^) : or by betting on the sides of 
 those who so play ; or for repaying money knowingly lent for 
 such gaming, or lent at the time and place of such play to any 
 persons so gaming or betting, or that shall, during such play, so 
 game or bet — these being utterly void, both at Law and in 
 Equity (A). 
 
 So also Bonds, in restraint of trade generally, are void at Law 
 and in Equity — for they are of no benefit to either party, and only 
 oppressive (i) — but not such as restrain trade in a particular 
 place only : which, notwithstanding dicta to the contrary, appear 
 to be good, though without consideration, on the principle that 
 a specialty does not require one {k). 
 
 Bonds in restraint of marriage are odious at Law and in 
 Equity, and are held to the utmost rigor and strictness. There 
 can be but one true legal construction of these conditions ; and 
 it must be the same (Z) in the Court of Chancery, and all the 
 other Courts of Westminster Hall. 
 
 But conditions against marriage without consent, and such as 
 prescribe the due ceremonies and place of marriage, or limit the 
 restraint to marriage under twenty-one, or any other reasonable 
 time, are good. 
 
 And so are, conditions restraining widows from second mar- 
 riages — as in the limitations to them of an annuity or life estate 
 durante viduitate. 
 
 Marriage brocage Bonds, i. e., on condition that the obligee 
 procure a wife for the obligor, are valid at Law, but will be set 
 aside in Equity (m). 
 
 If the condition be immoral, as to induce future cohabita- 
 tion, as that the Bond is to be void if the woman ceases to live 
 with the man, the Bond is void at Law (n) and in the view of 
 Equity also ; although the concurrency of the Jurisdiction in 
 Equity will not be a sufficient ground for the obligor to come 
 into Equity to have the Bond delivered up : for he has an irre- 
 fragable defence to it at Law (o). But both at Law and in 
 
 (g) Shillito V. Theed, 5 Moo. & P. 
 303. 
 
 {h) 9 Ann. c. 14, s. 1. 
 
 (i) Mitchell v. Reynolds, 1 P. Wms. 
 181. 
 
 (k) 3 Jarm. Byth. (Sweet), 468. 
 
 (l) Law V. Law, 3 P. Wms. 393. 
 (m) Per Lord Mansfield, Long v. 
 Dennis, 4 Burr. 2056. 
 
 (n) Franco v. Bolton, 3 Ves. 368. 
 (o) Gray v. Mathias, 5 Ves. 294.
 
 BONDS AND COVENANTS. 
 
 145 
 
 Equity, if the Bond be prcsmium pudicitia, i. e., given, even to a 
 prostitute (<7), for past cohabitation, whether the obligor were, 
 and the obligee knew he was, married or not (r), is good ; and if 
 the obligee has had children by the obligor, it is an additional 
 reason for supporting the Bond(6-); which will be paid in Equity, 
 if there is any technical defect in it at Law, as e. g., if the Bond 
 cannot be proved {t). Such a Bond, however, ranks only as a 
 voluntary one. 
 
 Resignation Bonds, i. e., by which the presentee of a benefice ^^^^J^'^^^^^ 
 stipulates to resign it on request in favour of any one designated Bonds. 
 individual, are good at Law and in Equity, though such person- 
 be not related to the patron : but if the condition be to resign it 
 in favour of two, to be specially named and described, each of 
 such two must— in order to its validity— stand either in the rela- 
 tion of uncle, son, grandson, brother, nephew, or grand nephew 
 of the patron {u). A specific performance of such Bonds as are 
 valid, may be enforced in Equity. 
 
 Post Obits, or Bonds by which a man binds himself to p^^^ Jj;^^^^ 
 pay a sum of money after the death of another (or of himself), 
 are of two kinds ; in both, the payment is secured of a greater 
 sum than the advance ; but in the one case such payment is un- 
 certain, depending on a contingency ; in the other it is certain, 
 but the time of payment depends on a contingency {x). This is 
 a frequent species of security with persons having expectant 
 interests. However unconscionable the bargain, the obligee 
 may recover at Law the full amount; though in Equity the 
 obligor may be relieved, and set it aside, on the ground of pal- 
 pable inadequacy of price, {i. e., inadequacy so great as to be itself 
 clear evidence of fraud,) upon payment by him of the sum actually 
 advanced, with interest and costs (y). 
 
 The usuriousness of such Bonds is now no longer a circum- 
 stance determining their validity (z). 
 
 Bottomry Bonds are written agreements under hand and seal, g^^^^^^^- 
 whereby a vessel is pledged by the owner, for the payment of bq^js. 
 money advanced for the use of the ship, in the event of her 
 voyage ending successfully (a). Sometimes they are in the form 
 
 (q) Hill V. Spencer, Ambl. 641. («) 9 Geo. 4, c. 94, s. 1. 
 
 (r) Nye v. Moseley, 6 B. & C. 133. (x) 3 Jarm. Byth. (Sweet), 424. 
 
 {s) Knye v. Moore, 1 S. & S. 61. («/) Ibid. 427. 
 
 {t) Marchioness of Annandale v. (z) 17 & 18 Vict. c. 90. 
 
 Harris, 2 P. Wms. 433. (a) Smith's Merc. Law, 401. 
 
 L
 
 146' 
 
 SPECIALTY DEBTS. 
 
 Bail Bonds. 
 
 10. 
 Replevin 
 Bonds. 
 
 11. 
 Debentures. 
 
 Notes. 
 
 Mortgages. 
 
 12. 
 
 Voluntary 
 Bonds. 
 
 of Bills of Sale ih). These contracts are of less importance since 
 the repeal of the Usury Laws. As long as they were in force 
 this was an allowable exception to them, in consequence of the 
 risk to the principal, although an exorbitant rate was reserved. 
 
 Bail Bonds, which are not within the 8 & 9 Will. 3, c. 11, s. 8, 
 because the Courts of Common Law have ati equitable juris- 
 diction to relieve the obligor in them without his coming^ into 
 Equity (r), are Bonds to be given by a defendant on his arrest {d) 
 on mesne process to the Sheriff (e), the condition being that the 
 obligor do put in special bail. The sum for which the Bond 
 should be given is the sum endorsed on the writ. 
 
 Replevin is a re-delivery by the Sheriff to the owner of his 
 chattels taken upon a distress. And a Replevin Bond — which is 
 not within the 8 & 9 Will. .3, c. 11, s. 8, for the same reason that 
 a Bail Bond is not — is a Bond given by such owner, with two 
 sureties, to the Sheriff, that he will pursue the action against 
 him that distrained (/), and return the chattels, if a return 
 should be adjudicated. The Bond should be for double the value 
 of the goods distrained, to be ascertained on the oath of one 
 witness. 
 
 A Debenture has been defined {g) to be a Bond or Bill to charge 
 Government ; and again, a writ or note by which a debt is 
 claimed. These, it must be confessed, are rather meagre defi- 
 nitions. It appears to be a flexible term, sometimes applied to 
 notes, called Debenture Notes, being simply promissory notes 
 by a Company, signed by the Directors, to pay to A. or to his 
 order, or to bearer, so much money, borrowed on the credit of the 
 undertaking, with interest, in which case they are not charges on 
 land within the Mortmain Acts (/?,) : sometimes to mortgages of 
 the Company's property, moveable or immoveable, called Deben- 
 ture Mortgages {i). 
 
 A Debenture of a Bridge Company authorizes the treasurer, 
 out of the tolls, to repay the lender with interest, and as such is 
 within the Mortmain Act (A). 
 
 A Bond may be voluntary ; and such a Bond will support (Z) 
 
 {b) For a form, see Abbott on Ship- ture." 
 
 ping, Appendix cclxxx. 
 
 (c) Smith V. Bond, 10 Bingh. 131. 
 Id) Post, Book II., Ch. II., Sect. 3'. 
 (e) 1 & 2 Vict. c. 110, s. 4. 
 (/) Archb. Pr. 1013, 1016. 
 
 (/() Myers v. Perigal, 16 Sim. 537. 
 
 (i) Haddan on the Limited Liability 
 Act, 1855, 127, n. (v.\ 
 
 (/f) Ashton V. Lord Langdale, 4 De 
 G. & Sm. 402. 
 
 (g) Tomlins' Law Diet. " Deben- (/) Ante, p. 2.
 
 BONDS AND COVENANTS. 147 
 
 a Creditor's suit in Equity, but shall be paid there after nil debts 
 for value {m). Therefore, in Equity, parol evidence is admissible 
 to prove the want of consideration ; and the Creditor may so sue, 
 as has been observed {u), though no money is yet due at the 
 obligor's death, provided it is sure to become due at a future time. 
 
 But at Law every Bond is conclusively presumed to have been 
 for a good consideration (o), (?'. e., no evidence can be admitted 
 to show it was voluntary, if there was no fraud). 
 
 If fraudulent, as well as voluntary, it may be set aside in '3. 
 
 Equity by subsequent Creditors, (at least Judgment Creditors,) Bonds, 
 under 13 Eliz. c. 5(/?), but not by the obligor, or his real or per- 
 sonal representatives ; and is postponed to persons claiming under 
 a subsequent bona fide voluntary settlement {q), and therefore, 
 a fortiori, under one for value. 
 
 Upon the principle that Equity relieves against accidents, if 14. 
 
 the obligee lose the Bond by accident, he may have a remedy in 
 Equity to recover upon it (r), although a profert is no longer neces- 
 sary at Law (s), (even though the Bond is not lost), and although, 
 therefore, he may sue on it at Law ; Equity not losing her once 
 exclusive jurisdiction by the circumstance that other Courts 
 have since obtained a concurrent jurisdiction with her(0. The 
 remedy which has been since given at Law on lost negociable 
 instruments {u), does not include Bonds, the loss of which was, 
 as we have seen, previously provided for. 
 
 An award of a sum of money constitutes a legal debt from one Awards. 
 party to the other ; and an action of " debt" lies for it where 
 the submission is by deed, or writing without deed, or by parol, or 
 where it has been made a rule of Court, in which case it may be 
 also enforced by " attachment" (a:) : and "assumpsit" lies where, 
 the submission being without deed, the award is for the per- 
 formance of a collateral act {y). It is not a specialty, though 
 under hand and seal, unless delivered as a deed (z). 
 
 A Covenant is an agreement by deed, that the covenantor, or ^^■ 
 
 some third person, shall do something beneficial, or abstain from what 
 doing something prejudicial, to another (a) ; or whereby " either 
 
 (w) Seton on Decrees, 56. {t) 5 Bac. Abr. "Obligation," 821. 
 
 (n) Ante, p. 1. («) C. L. P. Act, 1854., s. 87. 
 
 (o) Taylor on Evidence, 95, 3rd edit. (j) See 9 & 10 Will. 3, c. 15. 
 
 (p) Sect. 2. {y) 2 Saund. (Wms.) 62 b, 
 
 \q) Dening v.Vfaxe, 22 Beav. 184. («) Brown v. Vawser, 4 East, 584. 
 
 (r) 1 Story. Eq. Jur., s. 81. (a) 4 Cruise's Dig. 367. 
 
 («) C. L. P. Act, 1852, s. 55. 
 
 L 2
 
 14-8 
 
 SPECIALTY DEBTS. 
 
 Voluntary. 
 
 For further 
 assurance. 
 
 party stipulates for the truth of certain facts" (b). The words 
 " covenant" or " agreement" are not necessary (c). Considered 
 as a debt, as distinguished from a contract, it is an express agree- 
 ment—the doctrine of implied (d) covenants is confined to real 
 property —to pay a specific sum of money. It must, like a Bond, 
 be in writing, sealed, and delivered, (though not necessarily 
 signed,) by the covenantor. Local custom, it is said, sometimes 
 dispenses with writing. 
 
 Every covenant to pay money on a day certain is a single 
 Bond ; but a single Bond is not always a covenant ; e, g., an in- 
 denture acknowledging a debt to be due to one who is not a party 
 to it, though good as a Bond, is not a Covenant (e). 
 
 The covenantee need not execute the deed. A Covenant 
 with a penalty in no respect differs from a Bond with a con- 
 dition ( /). 
 
 If for the payment of money a covenant is generally in 
 this form : " And the said covenantor doth hereby for himself, 
 his heirs, executors and administrators, covenant with the said 
 covenantee, his executors and administrators." {g). The lia- 
 bility of the heir or devisee of the covenantor in such a cove- 
 nant will be treated of in a subsequent part of this work {h). It is 
 inaccurate to make such a covenant with the assigns of the cove- 
 nantee, as it is not assignable at Law (i). Like a Bond, it may 
 be voluntary or for value : if voluntary it will, after the cove- 
 nantor's death, support a Creditor's suit, if it be a covenant to 
 pay money, and a breach has taken place, but will be payable 
 after all debts for value (7i). A covenant with a .5s. consideration 
 is voluntary (l). Equity will not, however, assist a voluntary 
 covenant, e. g., by decreeing its specific performance {m). 
 
 It is doubtful whether, if the covenant be not to pay money, 
 {e.g., if it be for further assurance,) and is voluntary, the cove- 
 nantee can prove in Equity, as a Creditor in a Creditor's suit; 
 or must not rather sue at Law. Sir L. Shadwell has decided 
 that he must go to Law {n) ; but V. C. Wigram, taking, it would 
 seem, a broader view, has held, without saying the Court would 
 
 (6) 2 Bac. Abr. " Covenant," 337. 
 (c) Holies V. Carr, 3 Svv. 647. 
 \d) 1 Selvvyn's N. P., 11th ed. 477, 
 n. (14). 
 
 (e) 3 Jarm. (Sweet), 270. 
 
 (/) Ibid. 633. 
 
 {g) Wms. P. P. 97. 
 
 Qi) Post, Part IT. 
 {i) 3 Jarm. Byth. (Sweet), 640. 
 {k) 1 Spence, Eq. Jur. 193. 
 (0 Sewell V. Moxsy, 2 Sim. N.S. 189. 
 {m) Fry on Specific Performance of 
 Contracts, 25. 
 
 («) Hervey v. Audland, 14 Sim. 531.
 
 BONDS AND COVENANTS. 149 
 
 decree its specific performance, that such a covenant constitutes 
 a debt proveable in a Creditor's suit (o). 
 
 There is a distinction between covenants in general, and cove- Covenant with 
 nants secured by a penalty and forfeiture. In the latter case the ^"^ ^' 
 obligee has his election. He may either bring an action of debt 
 for the penalty and recover the penalty, after which recovery he 
 cannot resort to the covenant, because the penalty is to be a 
 satisfaction for the whole ; or if he does not choose to go for the 
 penalty, he may proceed upon the covenant for breach of the 
 contract, to recover more or less than the penalty, and so toties 
 quoties{p). 
 
 And upon this distinction they proceed in Courts of Equity. 
 They will relieve against a penalty, upon a compensation ; but 
 where the covenant is to pay a particular liquidated sum, as a 
 covenant to pay 51. an acre for every acre ploughed, " a Court of 
 Equity cannot make a new covenant for a man. Nor is there 
 any room for compensation or relief" {q). 
 
 But, as was observed above, as equitable relief can now be had 
 at Law, in cases of penalties, the relief in Equity, though not 
 abolished, needs not to be resorted to. 
 
 The forms of actions are not abolished by the Common Law 
 Procedure Acts; therefore the Creditor is still said to sue (on 
 his covenant) " in debt" or " in covenant." He will adopt the 
 former form where his object is the recovery of a specific sum, 
 as the penalty, or sum named for liquidated damages : the latter, 
 where he seeks redress in damages for breach of the covenant. 
 
 If he sues for the penalty in an action of debt, the case, like a Covenants 
 Bond, is within 8 & 9 Will. 3, c. 11, s. 12, and its provisions wliVs^^^ 
 must be complied with (though the same sort of covenants are 
 excepted out of that Act, as of Bonds). 
 
 If he sue "in covenant," he sues for damages, and the case is 
 not within the Act, and the Jury may award more or less damages 
 than the amount of the penalty, as they think fit, for in those 
 actions which " sound" only in damages, the Judgment is for 
 the damages found by the Jury, and no more, and cannot stand 
 as a security for future breaches (r). 
 
 Where the sum named is to be considered as liquidated 
 damages, and not as a penalty, the same remarks apply as have 
 been made in the case of Bonds (s). The advantages of a cove- 
 
 (o) Cox V. Barnard, 8 Hare, 311. Peers, 4 Burr. 2229. 
 
 Ip) 1 Saiind. (Wms.) 58 b. n. (d.) (r) 1 Saund. (Wms.) 58 b. n. (d.) 
 
 (g) Per Lord Mansfield, Lowe v. (s) Ante, p. H2.
 
 150 
 
 SPECIALTY DEBTS. 
 
 16. 
 
 Stamps. 
 
 nant with a penalty are : 1. A single action only is necessary 
 upon the instrument, and not an action for every breach. 2. The 
 covenantee may, on the first breach, obtain the additional 
 security of becoming a Judgment Creditor for all future 
 breaches. 
 
 Covenants for payment of money are chargeable with the 
 same ad valorem stamp as a mortgage or bond for the same 
 purpose (?/). 
 
 Section 2. 
 Rents and Policies. 
 
 I. Rents. 
 
 What. 
 Sorts of. 
 Remedies for. 
 
 Lessor v. Lessee. 
 Distress. 
 
 32 Hen. 8, c. 37. 
 3^4 Will. 4, c. 42. 
 11 Geo. 2, c. 19. 
 Entry. 
 
 Action of Debt. 
 Action for Double Yearly 
 
 Value. 
 Action for Double Rent. 
 For Double the value of 
 
 Goods. 
 Assumpsit. 
 " Case " by Executors. 
 44-5 Will. 4, c. 22. 
 Substitute for Emble- 
 ments. 
 Replevin. 
 Ejectment. 
 County Courts Remedy. 
 
 11. 
 
 Possession hy Justices of 
 the Peace. 
 Grantee of Reversion v Lessee. 
 Landlord v. Under-lessee. 
 Distress. 
 Ejectment. 
 Lessee v. Under-lessee. 
 Lessor and Grantee of Reversion 
 V. Assignee of Term. 
 Covenant. 
 Distress. 
 Ejectment. 
 Lessee v. Assignee of Term. 
 
 Policies. 
 Life. 
 
 Indisputable. 
 Fire. 
 Sea. 
 
 Mutual Insurance Companies. 
 
 Voyage and Time Policies. 
 
 Loss and Abandonment. 
 
 Warranties. 
 
 No Equitable Jurisdiction. 
 
 Rent I. Rent. — We shall treat here of cases where the owner of the 
 
 rent is the Landowner, and of Rent-charges in a subsequent part. 
 Rent is a specialty debt, whether reserved (x) on a lease by 
 deed or not (7/) ; but the remedies for it are so special, as to de- 
 mand a separate notice. The different species of it still subsist, 
 but the distinction between them, as regards the mode of re- 
 covering them, is, for practical purposes, at an end {z). It will 
 be, therefore, sufficient to state briefly their diflfei-ences. 
 
 What. Rent, generally, is a "certain profit issuing yearly out of 
 
 (u) 13 & 14 Vict. c. 97, Sched. " Co- 
 venant." 
 
 {x) See Division II. 
 
 (y) Wms. on Executors, 910. 
 (x) 1 Blackst. (Steph.) 651.
 
 1 SI 
 
 RENTS AND POLICIES. 
 
 lands and tenements corporeal." There are three sorts by the 
 
 Common Law. 
 
 1 Herd- Service, so called because it has some corporeal ser- Different sorts. 
 vice incidental to it, as (at the least) fealty, which is still due 
 from a lessee for years or life or donee in tail to his lessor, or 
 donor (a). Rents " of assize"-being those at which the copy- Rent-Serv>ce. 
 holders, and " Chief-Rents," being those aX which the freeholders 
 of a manor have held immemorially-(both indifferently called 
 " quit"-rents)— are species of rent-service {b). 
 
 2. Hent- Charge Is, where the owner of the renthas no interest Rent-charge. 
 in the land, as where the owner of the land by deed conveys it 
 
 to another, with a certain rent payable thereout to a third party, 
 adding to the deed a clause of distress in favour of the owner of 
 
 the rent(c). 
 
 3. Bent-Seek, is where the owner of the rent has neither any Seek. 
 interest in the land, nor any such express power of distress, as 
 
 the owner of a rent-charge has (c?). 
 
 Fee-farm rents are rents (of one-fourth of the value of the Fee-farm, 
 lands) reserved on the grant of an estate in fee(e), and may be 
 either rents-seek or rents-charge ; but cannot be, if created by a 
 subject since 18 Edw. 1, a rent-service ; for this would be, in fact, 
 a lease of lands in fee simple, and, since then, no rent-service can 
 be reserved to a subject on an alienation in fee (/). 
 
 Rack-Rent denotes the proportion, rather than the character, Rack-Rent. 
 of the rent. It is the full yearly value, or nearly so {g). 
 
 As, on the contrary, Ground-rent is a rent much smaller than Ground-Rent, 
 the yearly value of the land, reserved by the freeholder on the 
 granting of long leases for improvement or building purposes. 
 
 Now? in treating of the remedies for rent, I shall consider, Remedies for. 
 fiistly, those of the Lessor against (i.) the Lessee ; (ii.) the Un- 
 der-lessee ; (iii.) an Assignee of the term : and, secondly, 
 those of the Assignee of the reversion against each of the same 
 
 classes. . 
 
 The remedy of the Lessor is almost always at Law. A bill in Lessor 
 Equity will, indeed, lie for rent, where the remedy at Law is Lessee, 
 lost or difficult, on the ground of lapse of time or of discovery, 
 as where the nature of the rent is not known (h) ; or for the 
 tenant, to discover the title of a party bringing ejectment against 
 
 (a) IJjid. 284. («) I^id. 651. 
 
 (b) Ibid. 650. (/) Ibid. 
 
 (c) Ibid. 649. (g) I^id. 
 
 (rf) Ibid. 650. W Benson v. Baldwyn, 1 Atk. 598.
 
 152 
 
 SPECIALTY DEBTS. 
 
 Generally at 
 Law. 
 
 Lessor Equit- 
 able Owner. 
 
 Equitable 
 Rent-charge. 
 
 Distress. 
 
 By Executors 
 of Lessor. 
 
 Distress for 
 Double Rent. 
 
 him {i) : but these must be considered obsolete remedies. And, 
 of course, where the subject in litigation in Equity is land, the 
 question of rents may arise, and the remedy for the one involve 
 that of the other. Thus, every administration decree relating 
 to, and appointment of a receiver of, real estate, contain and 
 involve the adjustment of, rights and directions, respecting rents. 
 But in such cases the remedies for rent arise only incidentally 
 to the principal question before the Court. 
 
 Even an equitable owner of land, as a cestui que trust, making 
 a lease without the concurrence of the legal owner, may have the 
 usual remedies of the latter, bi/ action for rent, {e. g., an action 
 for use and occupation) ; for, since it is a matter of contract, the 
 Courts of Law will look to that only, and not to the nature of 
 the lessor's interest in the land {j), and the lessee will be 
 estopped from disputing his lessor's title in it : and the same is 
 Law with regard to the title of an equitable owner of rent : 
 rents being within the Statute of Uses {k), a trust or unexecuted 
 use, may exist in them. 
 
 But to maintain ejectment for the land, for non-payment of 
 rent, the plaintiff must have the legal title (Z). 
 
 Now the first and most summary remedy for rent arrear is bi/ 
 distress. It is not intended here to go into the details of this 
 remedy, however, which are minute enough to fill a book ; it 
 will be enough to refer the reader to Mr. Woodfall's Law of 
 Landlord and Tenant, and other treatises upon it. Moreover, 
 being a redress by the act of the party himself, and not a judicial 
 remedy, it is hardly within the scope of a treatise like the 
 present. 
 
 It may, however, be observed, that the executors and ad- 
 ministrators of ani/ lessor may distrain, after his death, for arrears 
 during his life (m) ; even though the lease be expired, if the dis- 
 tress be made within six months after such expiration, and 
 during the possession of the Debtor-tenant (w). 
 
 The 32 Hen. 8, c. 37, had already given this remedy to the 
 executors of owners of rents in fee simple, fee tail, or for 
 life (o). 
 
 The lessor may distrain for double rent during the tenant's 
 life, when, whether the lease be for a term, or from year to year. 
 
 (i) Metcalf v. Hervey, 1 Ves. sen. 
 249. 
 
 {j ) Hull V. Haughan, 6 Price, 157. 
 (A) 27 Hen. 8, c. 10. 
 
 (0 Woodfall's L. & T., 7th ed. 726. 
 (m) 3 & 4 Will. 4, c. 42, s. 37. 
 («) Ibid. s. 38. 
 (o) Ibid. s. 1.
 
 RENTS AND POLICIES. 
 
 he holds over after having given parol or written notice to 
 quit (p); but not where the tenancy is weekly only (rj). 
 
 Also, of whatever sort the tenancy is, the landlord may follow 
 and seize as a distress, unless sold bond fide before such 
 seizure (r), goods fraudulently removed by the tenant to defeat 
 a distress {s). 
 
 Rent becoming due after the death of the lessor, having a 
 freehold reversion, belongs to his heir or devisee (/)• 
 
 The next remedy of the Landlord that we shall mention. Entry. 
 though, like that of Distress, it is one by his own act, and not a 
 judicial one, is that of Entry, or a legal right to enter and take 
 possession of the land freed from the lease. This, it will be 
 observed, is a remedy for reinstating himself in his original 
 estate, not a remedy for recovering the rent. This remedy does 
 not extend to the landlord's heirs, executors or administrators, 
 unless expressly named {u) ; but the Statute Law has expressly 
 extended it to the grantees of the reversion, their heirs, execu- 
 tors, successors or assigns (.r). 
 
 A proviso for Re-entry, on breach of any or some of the Cove- 
 nants, is usually contained in leases for years or for life. It may 
 be stipulated for, also, in an agreement for a lease. 
 
 h'respective, however, of express agreement, the Law will, at 
 least, in the case of actual leases, though not of mere agreements 
 for them, imply certain conditions, the forfeiture of which will 
 avoid the lease, and give the Lessor the right to re-enter, e.g., 
 if the lessee do any act impugning the lessor's title (?/). But the 
 right of re-entry for non-payment of rent is not one which the 
 Law so implies ; an express condition or proviso to that effect 
 must be inserted to give it the landlord {z). 
 
 The entry must be peaceable, and not violate the Forcible 
 Entry Statutes (a) ; and it changes the legal possession in an 
 instant. It may be made, either by civilly requesting the tenant, 
 or one of his servants, to depart; or, on refusal, by gently laying 
 hands on him and turning him out ; or, in case of resistance, by 
 using so much force as is necessary to overcome the resistance. 
 To constitute a forcible entry, or detainer, it is not necessary 
 
 {p) 11 Geo. 2, c. 19, s. 18. (a) 32 Hen. 8, c. Sk 
 
 (<?) Sullivan v. Bishop, 2 Car. & P. (y) 4 Bac. Abr. " Leases" (T 2). 
 
 359. («) Cole on Ejectment, 416. 
 
 (r) 11 Geo. 2, c. 19, s. 2. (a) Viz. 5 Rio. 2, c. 8 ; 15 Ric. 2, 
 
 {$) Ibid. s. 1. c. 2 ; 4 Hen. 4, c. 8 ; 8 Hen. 6, c. 9 ; 31 
 
 (0 Woodfall's L. & T. 234. Eliz. c. 11 ; 21 Jac. 1, c. 15. 
 
 153 
 
 («) Cole on Ejectment, 405. 
 
 L 5
 
 154 
 
 SPECIALTY DEBTS. 
 
 When relieved 
 against in 
 Equity. 
 
 ActionofDebt, 
 
 By Executors 
 of Lessor. 
 
 Action for 
 double yearly 
 value. 
 
 For double 
 rent. 
 
 For double tbe 
 value of goods. 
 
 that any one should be assaulted, but only that it should be with 
 such number of persons and show of force as is calculated to 
 create terror. 
 
 The right of re-entry for non-payment of rent, being, in the 
 eyes of a Court of Equity, intended only as a security for the 
 payment of the rent, the tenant will be relieved there from 
 the forfeiture. 
 
 In cases, however, where the right of re-entry is for bi'each of 
 covenants of a collateral nature, e. g., of a covenant to repair, 
 or not to aliene without licence, or to renew within a given time, 
 Equity will not relieve (c) ; but will leave the parties to their 
 legal rights, although compensation could be made upon an issue 
 quantum damnificatus. 
 
 The landlord may, instead of distress or entry, bring an action 
 of "covenant" for rent arrear where the demise is by deed, 
 whether the lessee has assigned or not, and although the lessor 
 has accepted rent from the assignee {d), or an action of " debt" 
 whether the demise is by deed or not, unless the lessor has ac- 
 cepted rent from the assignee (if any) of the term. A covenant to 
 pay rent runs both ways (e). 
 
 The executors or administrators of any owner of a rent in fee 
 simple, fee tail, or for lives, may have a similar action of debt 
 for arrearages against the tenant (f). 
 
 The landlord may also have an action of debt to recover 
 double the yearly value, — if the tenant, being for life or years, or 
 a person coming in under, or in collusion with, him, holds over 
 after the tenancy is ended, and the landlord has demanded pos- 
 session, by a written notice, — for such time as he holds ever (g). 
 
 Also, he may have an action for double rent when " any tenant" 
 — weekly ones excepted (h) — holds over after such tenant has 
 given notice, parol or written, to quit (i). 
 
 Also, of whatever sort the lease be, an action of debt for double 
 the value of goods or chattels fraudulently removed off the pre- 
 mises by the tenant, with the view of defeating a distress for rent 
 arrear (k). If the goods removed do not exceed 50/., the land- 
 lord may complain to two Justices, who may adjudge the tenant 
 to pay the double value (/). 
 
 (r) Cole on Ejectment, 410. 
 
 (rf) Woodfall's L. iV T. 600. 
 
 (e) Ibid. 81 ; 2 Sugd. V. &. P. 482. 
 
 (/) 32 Hen. 8, c. 37, s. 1. 
 
 (g) 4 Geo. 2, c. 28, s. 1. 
 
 (h) Lloyd V. Rosbee, 2 Campb. 453. 
 (0 11 Geo. 2, c. 19, s. 18. 
 (/f) Ibid. S.3. 
 (0 Ibid. s. 4.
 
 RENTS AND POLICIES. 155 
 
 Likewise, in all cases where the lease, or agreement, is not 
 under seal, and the tenant has entered (o), and whether a certain 
 agreed rent be reserved or not(/j), the landlord may have an Assumpsit. 
 action of assumpsit to recover reasonable satisfaction, as rent, for 
 the " use and occupation" of the premises by the Debtor (9). 
 
 The executors or administrators of a lessor for life, or pur "Case" by 
 autre vie, may recover, by action " on the case," from the Under- ^^^'^ °^^' 
 tenant, a proportionate part of the last half-yearly or quarterly 
 rent due at the time of the death (r). 
 
 Where any rent-service is reserved on a lease granted since 
 June 16, 1834-, by a tenant in fee, or for any life interest, or 
 under a powei", his executors shall, on the death, or determina- 
 tion by any other means of the interest, of such lessor, be entitled 
 to a proportionate part of the rent, and may recover it at Law or 
 in Equity, from the person who, but for the Act, would have 
 been entitled to the entire rent ; to whom, however, the party 
 liable to the rent shall still pay the entirety (s). 
 
 Instead of any claim to emblements, where the tenancy is by Substitute for 
 rack-rent, determinable by the death or cesser of any land- ^'^^'^'^^"'s. 
 lord entitled for his life, or other uncertain interest, the tenant 
 may hold on till the expiration of the current year, quitting then 
 without notice ; and the succeeding landlord may recover from 
 him a proportionate part of the rent (t). 
 
 If any occupying tenant of land quit, leaving unpaid any 
 tithe rent-charge, and the tithe-owner give notice that he will 
 proceed by distress on the land for it, the landlord, or succeed- 
 ing tenant, may pay it ; and it shall be a simple contract debt 
 due to them from the first-named tenant {u). 
 
 The remedy of double value is — but that of double rent is 
 not — cumulative to that of Ejectment {x). 
 
 Of Replevin, — which is for injuries offered to the rights of Replevin, 
 property in things personal in possession, in one instance of an 
 unlawful taking thereof, namely, that of wrongful distress, — it is 
 necessary to say a few words, inasmuch as it operates to limit 
 the landlord's extrajudicial remedy by distress. 
 
 By this action the right of the distress is tried, and the posses- 
 sion of the identical chattel is restored to the proper owner (y). 
 
 (0) Woodfall's L. & T. 610, 618. (0 14 & 15 Vict. c. 25, s. 1. 
 
 {p) Ibid. 610. (u) Ibid. s. 4. 
 
 (5) 11 Geo. 2, c. 19, s. 14. {x) Soulsby v. Neving, 9 East, 310; 
 
 (r) Ibid. s. 15. Cole on Ejectment, 649. 
 
 (s) 4 & 5 Will. 4, c. 22, s. 2. ( y) 3 Blackst. (Steph.) 514.
 
 156 
 
 SPECIALTY DEBTS. 
 
 Judgment for 
 
 Plaintiff. 
 
 For Defendant. 
 
 Action of 
 Ejectment. 
 
 Mesne Profits. 
 
 An "avowry" is the defendant's plea in Replevin, admitting 
 the taking in his own right ; a " cognizance" is his a.dtnission of 
 having taken it as servant for another : but in both he insists that 
 the taking was lawful. 
 
 All actions of Replevin are now brought, in the first instance, 
 in the New County Courts, by plaint there in the usual way : 
 but if the rent be more than 20/., or the title to any hereditament, 
 tithe, fair, market or franchise is in question in the action, they 
 are removable hy certiorari into a Westminster Court (a). 
 
 If Judgment is for the plaintiff, damages are awarded to him 
 for the unlawful taking or detaining ; if for the defendant, then, 
 at his option (h), either a return of the goods or the amount of 
 the rent arrear; which, where the plaintiff" is nonsuited after issue 
 joined, or where a verdict has passed against him, may be assessed 
 by the jury impanelled to try the cause. If the plaintiff is non- 
 suited before issue joined, then, upon suggestion on the record, 
 (or if judgment were against him on demurrer, then without 
 suggestion,) the defendant may have a writ of inquiry into the 
 value of the distress (c). 
 
 If no sufficient distress be on the premises, and the landlord 
 has a right to re-enter, for non-payment (c?), and has the legal 
 title, an action of ejectment lies for him, as often as half a 
 year's rent is in arrear. Service of the writ in ejectment, or if 
 it cannot be legally served, or no tenant be in actual possession, 
 the affixing a copy of it on the premises, shall be equivalent to 
 a formal demand, and re-entry : and in such ejectment posses- 
 sion of the premises may be recovered by a writ of habere facias 
 possessionem (e). 
 
 Judgment may be signed for non-appearance, and execution 
 issue as on verdict, for recovery of the possession of the premises 
 and for costs (/). The proceedings in ejectment are now regu- 
 lated by the Common Law Procedure Act, 1852, ss. 168 — 221. 
 
 The jury may also give damages in the action, if the tenant 
 has been served with notice of trial, for mesne profits which 
 shall or might have accrued between the determination of his 
 interest and the verdict, or some preceding day to be specially 
 mentioned therein ( y). 
 
 The landlord may also bring his action for mesne profits from 
 
 (a) 9 & 10 Vict. c. 95, ss. 119, 120, 
 121. 
 
 {b) Selw. N. P. 1204, 10th ed. 
 
 (c) 17 Car. 2, c. 7. 
 
 {d) C. L. P. Act, 1852, s. 210. 
 (e) Cole on Ejectment, 320. 
 (/) C. L. P. Act, 1852, ss. 2,210. 
 {g) Ibid. s. 214.
 
 RENTS AND POLICIES. 
 
 157 
 
 the verdict (or such preceding day as aforesaid) down to the 
 delivery of possession (A). 
 
 If the lessee, or his assigns, shall suffer judgment and execu- Foreclosure, 
 tion to be had and executed without paying the rent and costs, 
 and without proceeding for relief in Equity within six months 
 from execution executed — the tender of rent and costs will be a 
 sufficient ground for relief— he shall be foreclosed from all relief 
 at Law and in Equity, (except that of bringing error) (z). Equity 
 seems, therefore, to have the same jurisdiction in preventing for- 
 feiture for non-payment of rent where the landlord proceeds by 
 ejectment, as where he proceeds by entry. And such jurisdiction 
 is not the exclusive function of Equity only, for the equitable 
 jurisdiction is given to the Courts of Law of staying proceedings 
 in the action, on payment by the lessee before trial of the rent 
 arrear and costs (j), and of giving the same relief as the Court of 
 Chancery (h). But the lessee, proceeding in Equity for relief, 
 shall not have any Injunction against the proceedings at Law, 
 without bringing into Court the amount of rent arrear and costs (Z). 
 
 A landlord has no remedy in Equity against an equitable 
 assignee of the lease {e.g., one who has agreed to purchase it) 
 who has assigned over, for rent due whilst he was in posses- 
 sion (rn). 
 
 A landlord, having the right of re-entry, may, where the rent County Court 
 of any corporeal hereditament — neither the value of the premises '^^'"^'^y' 
 nor the rent exceeding 50/. per annum — is half a year in arrear, 
 enter a plaint in the County Court and recover the arrears (w), 
 and in (default of payment) the premises, by warrant to the high 
 bailiff to give possession. So, if the term having expired, or 
 having legally determined (o), the tenant refuse to deliver up 
 possession. xAnd he may, in the last-named case, add a claim in 
 his plaint for, and recover, mesne profits, not exceeding 50/., Mesne Profits, 
 down to the day appointed for the hearing, or any preceding 
 day named in the plaint (p). 
 
 Justices of the peace may, in petty sessions, issue warrants to Possession by 
 the constable and peace officers of their districts, in certain ^"s''<=^s ^^ *''^ 
 cases, to give a landlord possession of small tenements {rj) ; but 
 
 (//) Ibid. s. 212. (m) Cox V. Bishop, 5 W. R. 437. 
 
 (0 ll^'tl- s. 210. („) 19 & 20 Vict. c. 108, s. 52. 
 
 ij) Ibid. s. 212. (o) Ibid. s. 50. 
 
 (A-) 23 & 24 Vict. c. 126, s. 1. {p) Ibid. s. 51. 
 
 (0 C. L. P. Act, 1852, s. 211 ; see ((?) 1 & 2 Vict. c. 74, s. 1. 
 
 post, " Mortgages." 
 
 L 7
 
 158 
 
 SPECIALTY DEBTS. 
 
 Grantee of 
 Reversion 
 
 V. 
 
 Lessee. 
 
 Lessor 
 
 V. 
 
 Under-lessee. 
 
 Lessee 
 
 V. 
 
 Under-lessee. 
 
 Lessor or 
 Grantee of 
 reversion 
 
 V. 
 
 Assignee of 
 term. 
 
 this is a remedy for an illegal holding over by the tenant, and 
 not for rent in arrear ; so that it is hardly within our subject. 
 
 Let us now briefly consider the rights of the other classes of 
 claimants for rent, according to the plan above laid down. 
 
 The grantee of the reversion has a right of re-entry for 
 non-payment of rent, as we have seen (g), as well as the lessor 
 himself. So also he has an action of covenant for rent 
 arrear against the lessee, and also of debt (r) ; but not the latter, 
 after the lessee has assigned over, for privity of estate was the 
 only privity be|;ween them, and that it is gone by the assign- 
 ment {s). 
 
 As against an under-lessee, the original lessor may distrain on 
 his goods, as on a strangei''s, if there are any on the premises, 
 for rent in arrear by the original lessee (t) ; but as there is no 
 privity between them, he cannot sue him for it by any of the 
 hereinbefore-mentioned actions (u). However, he may bring 
 ejectment against him for the land, if the rent of the original 
 lessee be in arrear {x). 
 
 The original lessee, again, may distrain or enter on hib under- 
 lessee for rent arrear reserved on the sub-lease (y), and have the 
 same actions against him for it, as he himself is liable to at the 
 hands of his lessor for non-payment of rent reserved on the 
 original lease (0). 
 
 The original lessor, or his representatives, or the assignee of 
 the reversion may sue the assignee of the term — whether the 
 assignment be absolute or by way of mortgage (a)- for rent in 
 arrear from the original lessee, on a covenant by the latter to 
 pay rent (b) : for such a covenant runs with the land (c), and there 
 is a privity of estate between the lessor and grantee of the rever- 
 sion and the assignee of the term (though the word assigns was 
 not in the covenant) ; but a privity of estate only ; therefore, the 
 assignee is only liable for rent falling into arrear whilst he is in 
 possession (d), and has the legal estate (e). 
 
 So the lessor, or grantee of the reversion, may distrain goods of 
 
 (q) Ante, p. 153 ; 32 Hen. 8, c. 34. 
 
 (r) Woodfall's L. & T. 601. 
 
 (.9) Humble v. Glover, Cro.Eliz. 328. 
 
 (0 Woodfall's L.& T. 7. 
 
 («) Ibid. 
 
 (x) Ibid. 8. 
 
 (y) Ibid. 7. 
 
 (2) Bac. Abr. "Leases" I (3). 
 (a) Williams v. Bosanquet, 1 Brod. & 
 Bing. 238. 
 
 (i) Woodfall's L. & T. 215. 
 
 (c) Parker v. Webb, 3 Salk. 5. 
 
 (d) Walker v. Reeve, 3 Doug. 23. 
 (0 Woodfall's L. & T. 343.
 
 RENTS AND POLICIES. 159 
 
 the assignee of the term, on the premises (/), or bring ejectment 
 against him for rent due from the lessee ; but not actions of 
 '^ debt" or " assumpsit ," for they are founded on contract (.r/), of 
 which there is no privity between the lessor (or grantee) and 
 assignee. 
 
 If the lessee has assigned, of course no rent is due to him. Lessee 
 He assigns for a gross sum paid or lent to him, and, in the latter Assignee, 
 case, becomes entitled and subject to the usual rights and liabi- 
 lities of mortgagors. But on any covenants with him by the 
 assignee to pay the rent due to the lessor, he has the usual 
 remedies of a covenantee. 
 
 Policies of Insurance or Assurance must be reckoned among Policies, what. 
 Specialty Debts ; for they are contracts in writing under seal by 
 one party to indemnify another, either from a loss which mm/ 
 arise on the happening of some event ; and then they come under 
 the definition of Contingent Debts — or on an event which is sure 
 to happen, but still future, and then they are not separable in idea 
 from other Dehita in prcBsenti solvenda in fuLuro. 
 
 The party who undertakes to indemnify is called the Insurer, 
 and, when he has subscribed the Policy, the Underwriter. The 
 party indemnified is called the Insured or Assured. Any 
 persons, subjects or aliens (except when enemies) may be in- 
 sured (h). 
 
 The principal Insurances are Insurances of lives against fire, 
 and against loss of ships and cargoes by sea. 
 
 For one man to insure another's life he must (as we have Life, 
 seen) (i) have an interest in it, that is to say, the Insured shall 
 recover no greater sum than the amount of his interest in the life. 
 
 A Creditor has a sufficient interest in his Debtor's life to 
 insure it to the extent of the debt; and a man has a sufficient 
 interest in his own life, and a trustee in the life of his cestui que 
 trust, to insure it(^); and a wife in the life of her husband (/), 
 and an executor in the life of one who has granted an annuity to 
 the testator (?/2). 
 
 Provisions are occasionally inserted, (where a man insures his 
 own life,) making void the policy in case of his suicide, or death 
 by the hands of Justice; these are, however, superfluous. 
 
 (/) Baber v. Harris, 9 Ad. & Ell. (A) Collett v. Morrison, 9 Hare, 1G2. 
 
 532. (/) Peake's Add. Ca. 70. 
 
 (g) Woodfall's L. & T. 600, O'll. (;«) Tidswell v. Ankerstein, 1 Peake, 
 
 (h) Smith's Merc. Law, 329. 204. 
 (») Ante, p. 114.
 
 160 SPECIALTY DEBTS. 
 
 The assignee of a life policy need not have an interest in the 
 life insured (n\ 
 
 Where a Creditor insures in his own name the life of his Debtor 
 as a security for the debt, and the debt is paid off during the 
 Debtor's life, he may require the Creditor to assign the policy : 
 it is his property. In such a case, if he refuse to pay the pre- 
 miums, and the policy is kept on foot by the Creditor, such pre- 
 servation shall enure for the benefit of the Debtor, to whom it 
 still belongs, subject to the Creditor's lien for advances made to 
 keep it on foot (o). 
 Indisputable. In some cases life policies are declai-ed, either by their terms 
 or by prospectuses issued by the Company, to be Indisputable, 
 or Unquestionable. " That would be an absolute guarantee that 
 no objection should be taken to defeat the policy on the death 
 of the party whose life is insured, subject to the implied excep- 
 tion of personal fraud, which will vitiate every contract" (p). A 
 mere untruth in the proposal, unless it were b. fraudulent xxnimth, 
 would not vitiate such a policy [q), although the policy was made 
 on the express condition to be void for any untruth. 
 
 The payment of the premium in the stipulated manner is an 
 invariable condition : if broken, a subsequent receipt of it by the 
 Company's agent will not set up the policy, unless his authority 
 to enter into a fresh agreement could be shown. 
 
 It is the duty of the Insured to disclose all material facts ; and 
 a verbal misrepresentation would vitiate the policy at Law. If 
 he supplies information, he becomes the agent of the party 
 insuring his life, who is therefore bound by his statements. 
 Fire. The Insurance Office may, at the request of any person in- 
 
 terested in a building within the bills of mortality, burnt down 
 or damaged, or on suspicion of fraud, lay out the Insurance 
 money in repairs, unless the insured, within sixty days after his 
 claim has been adjusted, give security so to lay it out, or unless 
 it be then disposed of to the satisfaction of all parties (r). 
 
 A covenant by lessee with his lessor, to insure houses within 
 the Bills of Mortality, amounts to a covenant to repair, and 
 runs with the land (s), in favour of the assignee of the rever- 
 sion. 
 
 Unlike life policies. Fire Policies cannot be assigned, except 
 
 (n) Ashby v. Ashby, 3 Sim. 149. {q) Wood v. Dwarris, 11 Exch. 503. 
 
 (o) Drysdale v. Piggott, 4 W. R. 772. (r) 14 Geo. 3, c. 78. 
 
 (p) Wheehon v. Hardisty, 26 L. J., («) Vernon v. Smith, 5 B. & Aid. 1. 
 Q. B. 280.
 
 RENTS AND POLICIES. 161 
 
 with the consent of the Insurer (t). The insured must have an 
 interest in the property insured at the time of the insuring, and 
 of the fire ; and he can only recover to the extent of that 
 interest. Risks are generally classified into Common Insur- 
 ances, Hazardous, and doubly Hazardous. 
 
 Maritime Insurance takes place when a merchant gives a pre- Sea Policies, 
 mium to others to assure his ship or goods, from one port or 
 place to another, on such terms as they shall agree (u). The old 
 Common-Law right of every one to be an insurer is now restored 
 by statute (x), whether as individuals, incorporated Companies, 
 or unincorporated Societies (called Mutual Insurance Companies). 
 
 As to the first, private insurers — called, after they have sub- 
 scribed the policy, undenoriters — meet and carry on business at 
 Lloyd's, in their own subscription-rooms. Of Insurance Com- 
 panies who, with their large subscribed capital, can afford to 
 insure large sums without the risks attending individual In- 
 surers, we have before spoken (y). In the North of England, Mutual in- 
 especially. Insurance is cai'ried on by unincorporated Clubs, of p^^^^/g^! 
 which none are members, unless they have ships of their own; 
 and who agree, each entering his own ships for a certain amount, 
 to divide among themselves each other's losses. The members 
 are only individually, not jointly, liable inter se. The principal 
 advantage of insuring with such Associations is, that the mem- 
 bers know each other's responsibility better than they can know 
 that of general underwriters, and can better detect frauds in the 
 assured, and will act as a check on each other in setting up 
 dishonourable defences {z). 
 
 Sea Policies may be divided into voyage policies, time policies, Voyage and 
 or mixed. In the former, the risk is dependent on the voyage Ai'"^' l'oli^'<^s- 
 of the ship, as designated by local termini; the terminus a quo 
 being, where the policy is on the ship, the port of departure ; 
 where on the goods, the port of loading {a). In time policies, 
 which, on insurances of ships, cannot, by our Law {b), be for 
 more than one year at a time, the two extremes of the time arc 
 the termini of the risk ; and the policy covers any sea damage 
 they may sustain within the limited time (c). 
 
 Ships, goods or freight, may be the subject of Insurance. 
 
 In Sea Policies, freight is used to denote the price agreed to Freight, what. 
 
 {t) Lynch v. Dalzel), 4 Bro. P. C. 4ol. («) Arnould's Mar. Ins. 9f). 
 
 (m) Smith's Merc. L. 339, 6th ed. («) Ibid. 387. 
 
 (a) 5 Geo. 4, c. 114. (6) 35 Geo. 3, c. 63, s. 12. 
 
 (y) Ante, Ch. II., Sect. 3. {<•) Arnould's Mar. Ins. 462. 
 
 M
 
 162 
 
 SPECIALTY DEBTS. 
 
 Total Loss. 
 
 Warranties 
 implied. 
 
 Express. 
 
 Policies open 
 and valued. 
 
 General 
 Average. 
 
 be paid by the charterer to the shipowner for the hire of the 
 ship, under a contract of affi'eightment, as well as the price to be 
 paid by him for the carriage of his goods, irrespective of any 
 such contract. It also means the benefit which the shipowner 
 may expect to derive from the carriage of his own goods in his 
 own ship, the value of them being increased by their trans- 
 portation {d). 
 
 In case of loss, the first question is, is it total or partial? A 
 total loss is either total per se, or a relinquishment (technically, an 
 abandonment) to the Insurer of whatever may be saved. 
 
 Abandonment is the act of cession, whereby the loss of the 
 property being imminent, the assured, on condition of receiving 
 the whole Insurance money, relinquishes to the underwriters all 
 his interest in the thing insured (e). He must give the Insurers 
 notice of the abandonment within a reasonable time (/). 
 
 The question of the underwriter's liability to return premiums 
 on establishing his non-liability on a policy depends, in the ab- 
 sence of an express agreement, on the two following prin- 
 ciples : — 
 
 (i.) If no risk has, in fact, been run, they shall be returned. 
 
 (ii.) Where the risk has once begun, and is entire, they shall 
 not. 
 
 The Insured impliedly warrants 1, the seaworthiness of the 
 ship at the commencement of the risk; 2, if the policy be a 
 voyage one, that she will not wilfully and unnecessarily depart 
 from her due course of voyage ; 3, that he will use reasonable 
 diligence to guard against the risks covered by the policy. 
 
 The express warranties which the Insured enters into are, 
 generally, the time of sailing ; the safety of the ship at a par- 
 ticular time ; that she shall be free from seizure in the port of 
 discharge, and (in time of war) that she shall depart with 
 convoy, and that the subject of Insurance is neutral property at 
 the commencement of the risk. 
 
 A policy is either open or valued: open, where the value of 
 the thing insured is not inserted, but must be proved at the 
 time ; valued, where it is inserted and settled by agreement ig). 
 
 General average, in respect of which the underwriter is liable 
 to indemnify the insured, is the liability of the proprietors of a 
 ship or cargo to contribute towards the loss sustained by any 
 
 (rf) Ibid. 250. 
 (e) Ibid. 1009. 
 
 (/) Smith's Merc. L. 390. 
 (^) Arnould's Mar. Ins. .3.57.
 
 RENTS AND POLICIES. 
 
 163 
 
 one of them, in consequence of the ship having been preserved 
 by the sacrifice of property of his duly laden on board. 
 
 Courts of Equity, as a general rule, have no direct Jurisdic- Equitable 
 tion in questions arising out of Sea (/<), or other policies. when. 
 
 They will, however, assume Jurisdiction to compel a trustee, 
 who has refused, to permit his name to be used in an action at 
 Law for the benefit of the cestui que trust {%), although it is not 
 suflficient ground for their Jurisdiction that the Insurance is made 
 in the name of the trustee, for "at that rate they would deter- 
 mine all policies" {j)\ or to set aside the assignment of a policy 
 fraudulently obtained (k). They will also decree specific perform- 
 ance of an agreement to execute a policy (/) ; will rectify a policy, 
 so as to make it conform to the agreement between the parties (w); 
 and, at the suit of an Insurance Company, decree a policy fraudu- 
 lently obtained from them to be delivered up («) ; and relieve — 
 but the same party only once — against forfeiture for breach of a 
 covenant to insure against fire, where no loss has happened, and 
 the breach has not been fraudulent or grossly negligent, and 
 there is an insurance on foot conformable to the covenant (o). 
 Specific performance of a contract to purchase a house will also 
 be decreed, though it be burnt down before the contract is 
 completed ; and altlipugh the vendor allowed the Insurance to 
 expire {p). 
 
 Moreover, as policies are choses in action not assignable at 
 Law, assignments of them, and trusts declared of them on such 
 assignments, are cognizable, and to be enforced, in Equity only(r/). 
 
 A Common Law Court or Judge may also now relieve against 
 forfeiture for not insuring, as the Court of Chancery may (r). 
 
 Bills of Mortality (a) are the weekly reports which, by a charter Bills of 
 of Charles I., the parish clerks of London were required to make ^I°''*^'''y' 
 of the christenings and burials within their parishes every 
 Tuesday. The bills now include 97 parishes within the city 
 walls, 17 without the walls, 24 out-parishes in Middlesex and 
 Surrey, and 10 in Westminster {t). 
 
 {h) Ibid. 1244., 2nd ed. (») Fenn v. Craig, 3 Y. & Coll. 216, 
 
 (i) Motteaux v. London Assurance (o) 22 & 23 Vict. c. 35, s. 4. 
 
 Company, 1 Atk. 547. {p) Paine v. Mailer, 6 Ves. 349 ; 
 
 {j) Ibid. Mead v. Davison, 3 Ad. & Ell. 308. 
 
 (A:) Scott V. Roose, 3 Jr. Eq. Rep. {q) Post, Ch. II., Sect. 3. 
 
 170. (r) 23 & 24 Vict. c. 126, s. 2. 
 
 (/) 3 Ad. & Ell. 308. (s) Ante, p. 160. 
 
 (;«) Collett V. Morison, <J llaie, 162. (<) PuUing's Lawsof tlieCily, p. 264.
 
 ( 164 ) 
 CHAPTER II. 
 
 SIMPLE CONTRACT DEBTS. 
 
 Section 1. 
 Simple Contracts. — Bills of Costs. 
 
 Simple Contract, what. 
 Promise and Pollicitation. 
 " Parol," what. 
 Assent. 
 Consideration. 
 
 Executed and Executory. 
 Maxim " Nudum pactum." 
 Writing, when necessary. 
 Principal Money Contracts. 
 
 2. Simple Contract Debt, what. 
 
 Creditors' Remedy, legal. 
 Exceptions. 
 
 3. Bills of Costs. 
 
 Reference for Taxation. 
 Costs of Taxation. 
 Cestui que trust may r^er. 
 Solicitor Trustee. 
 No " Account," 
 
 4. Remedy for Damages. 
 
 1. 
 
 Simple Con 
 tract, what 
 
 Promise and 
 Pollicitation. 
 
 A Simple Contract is such an agreement as has been de- 
 fined (a) above, made either by word of mouth, or by writing not 
 under seal — which are express contracts — or such as the Law 
 raises, without either verbal or written agreement, which are 
 Implied Contracts {b). 
 
 A promise, not under seal, is distinguished from a contract or 
 agreement, not under seal, by being the mere engagement of a 
 person, without regard to the consideration of it, or any cor- 
 responding duty of the promisee. Such a promise, though 
 accepted by the promisee, as if A. promises B. to pay him 100/., 
 may be retracted, as it is not binding for want of a con- 
 sideration (c). 
 
 A pollicitation is a promise not yet accepted by the promisee. 
 
 The term " parol" is applied indiscriminately to all express 
 contracts not under seal, whether verbal or written, although 
 etymologically it applies to the former only (d). 
 
 An assent by both, or all the parties to it, and a reciprocity of 
 obligation, seems an essential part of every simple contract. 
 Consideration. The Consideration must, in order that the contract may be 
 enforced at Law or in Equity, be a present valuable lawful one, 
 and must move from the contractee. But the value need not be 
 money or marriage. The gift or conveyance of anything valuable 
 — any laborious, self-detrimental act of the party seeking to 
 enforce it, which shall produce advantage to the other, or to any 
 third person at such other's request, will do. Any degree of 
 
 (a) Ante, p. 139. of a parol contract by Mr. Williams 
 
 (b) 2 IJlackst. (Stepli.) 56. (P. P. (Jj), that it " is an agreement by 
 
 (c) Wms. P. P. 66. word of mouth," seems hardly large 
 
 (d) If this be correct, the definition enough. 
 
 ■ Parol. 
 
 Assent
 
 BILLS OF COSTS. 105 
 
 reciprocity, whether in the way of benefit bestowed by the pro- 
 misee, or disadvantage sustained by him, is enough. Any 
 damage, suspension or forbearance of his right, or any possibiHty 
 of a loss occasioned to the plaintiff by the promise of another 
 is a sufficient consideration, though no actual benefit accrues 
 to the party undertaking (<?). The Courts of Lav/ will not hold 
 the promise invalid for mere inadequacy of consideration. 
 
 The principal legal considerations are — 
 
 (i.) Do ut des. 
 
 (ii.) Facio ut facias. 
 
 (iii.) Do ut facias. 
 
 (iv.) Facio ut des. 
 
 The Law makes this distinction also between past and future Past and 
 considerations, that the latter (executory) ones, in their very terms, " "'^^' 
 imply a request from the contractor ; the former {executed) 
 must be shown to have been given at his previous request, 
 express or implied {f). 
 
 The maxim Ex nudo pacto non oritur actio does not prevent Maxim "Nu- 
 all voluntary transactions and undertakings between man and ' ""^ ^^^ "™' 
 man not under seal. All that it means is, that so long as a con- 
 tract rests unexecuted it must be for a consideration. But if 
 everything has been done to perfect the transaction which the 
 nature of the thing admits of, the matter being then no longer a 
 pact, but a settled transaction. Equity will uphold the title. Upon 
 this ground she will enforce verbal voluntary declarations of 
 trust, as we shall presently see (y). 
 
 Although the contractor has chosen to reduce the simple con- 
 tract into writing, yet he need not sign it, unless it be one of 
 those contracts to which the Legislature requires signature ; and 
 a fortiori, the contractee need not sign it. 
 
 Li the following classes of Contracts, which may result in Writing, where 
 Debts, the Statute Law (h) imposes writing signed by the party ^^'^^^^^^y- 
 to be charged or his agent, as an indispensable requisite to the 
 simple contract. (Contracts concerning land are beside our pre- 
 sent inquiry.) 
 
 (i.) Any agreement made in consideration of marriage. 
 
 (ii.) Where the agreement is, by its terms, incapable of being- 
 performed within one year (i). 
 
 (iii.) Where the Debtor is guarantor for another (j). 
 
 (e) 1 Saund. Rep. (Wms.) 211 (d.) (It) 29 Car. 2, c. 3. 
 
 (/) Hunt V. Bate, Dyer, 272. (J) Ibid. s. 4, 
 
 (g) Post, Sect. 3. {j) Ibid.
 
 166 
 
 SIMPLE CONTRACT DEBTS. 
 
 Principal 
 Money Con- 
 tracts. 
 
 Simple Con- 
 tract Debt, 
 what. 
 
 (iv.) Where it is sought to charge an executor out of his own 
 estate on any special promise by him (A). 
 
 (v.) Where goods are sold for 10/. or more (J), unless the 
 buyer accept and receive part of them, or give something in earnest 
 to bind the bargain, or in part payment (m). 
 
 Nor can a debt arise on the sale of goods under 101., unless 
 there be either a present tender, or part payment, of the purchase- 
 money ; or a tender, or at least part delivery, of the goods ; or 
 unless it be mutually agreed that the completion of the contract 
 of sale shall be postponed till a future time (n) ; for unless one or 
 other of these requisites be complied with, there is no sale. If 
 any one of them be complied with, the sale is complete, and the 
 legal ownership of the goods passes to the vendee (o). Hence the 
 importance, in tradesmen's actions, of the words " goods sold 
 atid delivered." 
 
 The principal simple contracts concerning money, and which 
 still give the names to the forms of action for its recovery, 
 which, as we have seen, are not abolished by the Common Law 
 Procedure Act, 1852 {p), are concerning " monies lent," monies 
 paid by plaintiff for " defendant's use" (though actually paid to a 
 third person) at defendant's request, express or implied ; monies 
 " had and received," and an " account stated." Money is said 
 to be " had and received," {i. e., had and received by defendant 
 impliedly for the plaintiff's use,) the action for which has been 
 called, by Lord Mansfield, a kind of " equitable action," when it 
 has been paid by the plaintiff by mistake, or on a misrepresenta- 
 tion, or when the consideration for it has failed, or where the 
 payment has been extorted or obtained by fraud {q). None of 
 these, however, strictly speaking, make the party injured by the 
 violation a Creditor by simple contract. They are rather causes 
 of action than debts, except, perhaps, in the case of money lent, 
 as a loan on mortgage, without any covenant in the deed : here 
 the amount lent assumes at once the character of a debt, and is 
 recoverable as such in an action of debt (r). 
 
 A simple contract debt, then, will be, affirmatively, that obli- 
 gation which is imposed upon the contractor, by the very terms 
 of a simple contract, to pay the contractee, under the circum- 
 stances, or on the contingencies, mentioned in, or to be implied 
 
 (k) Ibid. 
 
 (/) Post, Part II. 
 
 (m) 29 Car. 2, c. 3, s. 17. 
 
 («) Wms. P. P. 3/i. 
 
 (o) Sheppard's Touchstone, 225. 
 (p) 15 & 16 Vict. c. 76, s. 91. 
 (7) Chitty on Contracts, 526. 
 (r) Yates I'. Aston, 4 Q. B. 182.
 
 BILLS OF COSTS. 
 
 167 
 
 from the contract, a specific sum of money. Negatively, it is any 
 
 debt not secured by deed or evidenced by record. 
 
 The subject of Simple Contract Debts, or engagements in the 
 
 nature of debts, o( a. feme cover ie, will be considered presently(«). 
 
 The remedy of the Creditor is during his Debtor's life, for the Creditors' 
 
 rcmcdv Itffal* 
 most part, at Law (t), by action of " debt" or assumpsit (u). 
 
 Law can give him adequate redress, viz., the money for which 
 he has stipulated, or its equivalent, — without distinction whether 
 it be for Debt or Damages (x) — the withliolding of which is the 
 wrong he has suffered: therefore there is no need of Equity. 
 Indeed a bill in Equity would be demurrable on that ground. 
 The debts, however, or engagements in the nature of debts, of a Exceptions-. 
 married woman, and Breaches of trust, and devastcwits, are ex- 
 ceptions to the above remark. For as they involve the doctrine 
 of " separate estate," and of Trusts, which are not cognizable 
 at Law, and of Creditors' suits, the Creditor's redress is in 
 Equity (y). 
 
 If the contract were made with the contractee, as trustee for, 
 or on behalf of, another, or if it were that the contractor would 
 pay money to a third person, still the contractee (and not his 
 cestui que trust), or the third party, would be the legal Creditor, 
 and must sue for its recovery (z) ; and any defence arising to 
 the Debtor from his (the trustee's) acts, will, in the absence of 
 fraud, be a good defence against the cestui que trust suing in his 
 name (a). 
 
 Debts, then, are, in their original inception, legal choses in 
 action. The legal and beneficial interests in the debt may, 
 indeed, as in the case of other property, become separated, and 
 the interest of the beneficial owner then becomes an equitable 
 debt, cognizable by Equity only. But she would still leave to 
 Law the enforcement of the debt by the Legal owner; and if she 
 interferes to aid the equitable claim, of which she alone takes 
 cognizance, (as of the cestui que trust, in the case above put,) she 
 would do it by compelling the legal Creditor to sue, or let his 
 name be used, rather than by establishing the claim or debt 
 herself. 
 
 (s) Post, Ch. III., Sect. 4. {y) Ilulnie v. Tenant, 1 B. C. C. 21, 
 
 {<) Holies V. Can-, 3 Sw. 644. and post, Part II. 
 
 (m) Smith on Contracts (2nd cd.), 374. (a) Broom on Parties, 2. 
 
 (.r) 15 & 16 Vict. c. 7(), s. 95. (n) Ilulnic v. Tenant, 1 B. C. C. 21. 
 
 M 4
 
 168' 
 
 SIMPLE CONTRACT DEBTS. 
 
 Reference for 
 Taxation. 
 
 It is manifest that the nature and species of simple contract 
 debts must be as numerous as the nature of the simple contracts 
 themselves, so that it is useless to attempt any classification or 
 examination of them, except of a few of the more privileged ones. 
 3. Thus, a Solicitor's or Attorney's bill of costs, though a simple 
 
 6&Tv''^^t ^73 contract debt, having appropriate remedies of its own, must be 
 separately considered. 
 
 No attorney or solicitor (or his executor, administrator or 
 assignee) — proctors seem not within the Act — may (except with 
 the leave of a Superior Court Judge) (&) sue for fees, charges or 
 disbursements, for business done as solicitor or attorney, until 
 one month after he has sent in his bill signed, or a letter signed 
 accompanying his bill (c). Upon application of the client within 
 the month, the Lord Chancellor, if the business has been done in 
 no Court of Law or Equity, or has been done in the Court of 
 Chancery or in any other Court of Equity, or in Bankruptcy or 
 Lunacy, — or the Court, or a Judge, of Q. Bench, Exchequer or 
 C. Pleas, or of a Palatine Court, if done in any other Court, 
 — may refer the bill to a Master or Taxing Master of the 
 Court {d) in which the reference shall be, and the attorney or 
 solicitor shall be restrained from suing pending the reference (e). 
 
 In default of such an application, the client (if within twelve 
 months after delivery of the bill, and if the demand shall not 
 have been recovered in an action) or the solicitor or attorney, 
 may apply for such a reference (/). The Taxing Officer may 
 proceed to tax ex parte, if either party, having notice, refuse to 
 attend the taxation {g). The Solicitor shall pay the costs of the 
 taxation, \^ more than one-sixth, and the Client, i^ less than one- 
 sixth of the bill, as delivered, be taxed ofF(/i): and payment of 
 the amount certified by the officer to be due "may be enforced 
 according to the course of the Court in which the reference has 
 been made" (i) ; i. e., if made at Common Law, such Court or a 
 Judge may order Judgment to be entered up for the amount, 
 unless the retainer be disputed (k) ; but the mere allocatur of a 
 Common Law Master will not make it a Judgment debt (Z). 
 
 And in case the Reference has been made in Equity, the 
 
 (6) 6 & 7 Vict. c. 73, s. 37. (g) Ibid, 
 
 (c) Ibid. (/() Ibid, 
 
 (rf) 1 Vict. c. 30, s. 3; 5 & 6 Vict. (i) Ibid. s. 43. 
 
 c. 103, s. 3; 40th Consol. Ord. r. J. (/f) Ibid, 
 
 (e) 6 & 7 Vict. c. 73, s. 37. (/) Ante, p. 7. 
 (/) Ibid. 
 
 Costs of 
 Taxation
 
 BILLS OF COSTS. 
 
 1G9 
 
 Solicitor may obtain an order of course, on petition, for the pay- 
 ment of the amount certified ; upon which he becomes a Judg- 
 ment Creditor in respect thereof, and may enforce payment by an 
 equitable /i. /a. or elegit under the ConsoHdated Orders (m). 
 
 Any third party hable to pay, or who has paid, the bill to the 
 party chargeable with it, or to the attorney or solicitor, his 
 executor, &c., may refer it (w) for taxation. 
 
 Where the client is a trustee, executor or administrator, any Cestui que 
 one interested in the property of which the client is a trustee '"^"^^ ""*^ "^^ ^^' 
 may apply for and obtain a reference from the Lord Chancellor 
 or Master of the Rolls, who may make such directions as they 
 please for taxation by the proper Chancery officer, and for pay- 
 ment of what he may find due, and of the costs of reference (o). 
 
 The bill may be taxed, by order of the Court or a Judge, 
 though it has been paid, if the application to tax be made within 
 twelve months after payment (p). 
 
 A Solicitor Trustee is not entitled to any more costs than Rights of 
 costs out of pocket, whether he be a sole or a co-trustee, ^"ystee*^ 
 where the business was done, not in a Chancery suit((/), but 
 out of Court, whether he be a partner or not (r), and whether 
 he be emploj'ed on behalf of himself and his co-trustees, or of 
 the cestui que trusts, unless the creator of the trust directed special 
 remuneration (s) ; seciis, where it was done in a Chancery suit(^). 
 The Ecclesiastical Courts may tax, and enforce payment of, 
 costs which they have decreed against a party (w). 
 
 The remedy given to Solicitors (and so of Proctors (u)) for the No equitable 
 recovery of their bills of costs is only Legal ; they cannot file a soUcitor.^'^ 
 bill in Equity for an account, though there have been receipts and 
 payments on each side, and outstanding liabilities against them, 
 so that it is not the common case of a bill of costs (.r). But soli- 
 citors have the further remedy of lien, as we shall see presently (y). 
 
 Where the Legal Remedy for a breach of contract, whether 4. 
 
 Special or Simple, is Damages, — though this is not, strictly, Remedy tor 
 within our inquiries (z), — the amount, if matter for calculation, 
 may be ascertained by a Common Law Master (a). 
 
 (m) 29 Old. r. 6. {s) Broughton v. Broughton, 5 De G., 
 
 (w) 6 & 7 Vict. c. 73, s. 38. M. & G. 1(J5. 
 
 (o) Ibid. s. 39. (0 Cradock f. Piper, 1 M'N.&G. 665. 
 
 (/)) Ibid. s. 41. («) 1 Hagg. Eccl. Rep. 685. 
 
 (q) Lincoln f. Windsor, 9 Hare, 158; (v) Ibid. 
 
 Broughton t>. Broughton, 5 De G., M.& (,r) Allison r. Herring, 9 Sim. 588. 
 
 G. 160. (i/) Post, Sect. 4. 
 
 (r) Christophers v. White, 10 Beav. (z) Ante, " Introduction." 
 
 523. {a) C. L. P. Act, 1S52. s. 94. 
 
 . . MO
 
 ( no ) 
 
 Section 2. 
 
 Sills, Notes, Cheques, I O Us, Seamen s Wages, Breaches of 
 Trust, Devastavits. 
 
 1. Bills of Exchange. 
 What. 
 
 When Negotiable. 
 Accovimodaiion Bill. 
 " Sight" and '' Usance." 
 Under £5. 
 Inland Bill. 
 Transfer of Bill. 
 
 Indorsement. 
 In full. 
 In blank. 
 
 Delivery. 
 Value Presumed. 
 " Value Received." 
 Fraud, where a Defence. 
 " Holder." 
 Presentment. 
 
 For Acceptance. 
 
 For Payment. 
 Dishonour. 
 Feme Coverte Payee. 
 
 2. Promissory Notes. 
 
 Under £5. 
 
 No Acceptance. 
 Partnership Bills and Notes. 
 18 ^ 19 Vict. c. 67. 
 Lost Bill. 
 
 3. Cheques. 
 
 Under £5. 
 Crossed. 
 Forgery, 
 ^. I Us. 
 
 5. Seamen's Wages. 
 
 Under £50. 
 
 Admiralty Jurisdiction. 
 Common Law Jurisdiction. 
 
 6. Breaches of Trust, 
 
 7. Devastavits. 
 
 8. Stamping, 
 
 Bills of 
 Exchange. 
 
 What. 
 
 Negotiable, 
 when. 
 
 Accommo- 
 dation Bill. 
 
 Bills of Exchange, and promissory notes, being a privileged, 
 and one of the most important, class of simple contract debts, 
 require a separate consideration. 
 
 A Bill of Exchange is an open letter — it must, by the custom 
 of merchants, be in writing — from one man (called the " Drawer") 
 to another, (called the " Drawee,") desiring him to pay to a third 
 party, (called the " Payee,") or to the " payee or bearer," or to 
 the " payee or order," a sum of money named therein to his (the 
 Drawer's) account. Sometimes the Drawer makes it payable to 
 himself or to his own order, or to himself and bearer (n). If 
 made payable to "order," that is, e.g., either to "A. and his 
 order," or merely *' to the order of A.," or " to bearer," it is a 
 Negotiable Bill, {i.e., can be assigned by the payee) (o), whereas, 
 if made payable simply to a person named, and not to " order," 
 or to " bearer," it is not negotiable, and the rights and liabilities 
 arising from it are confined to the original parties to it. It is of 
 no use, except to the payee. 
 
 An Accommodation Bill is one to which the Acceptor, Drawer 
 or Indorser (as the case may be) has put his name without con- 
 sideration, for the purpose of benefiting or "accommodating" 
 
 (n) Bylcs on Bills (5th eel.), 1. 
 
 (o) 2 Blackst. (Staph.) 100.
 
 BILLS, NOTES, CHEQUES, ETC. 171 
 
 some other party, who is to provide for the bill when due(^). 
 The parties to such a bill hold themselves out to the public, by 
 their signatures, to be absolutely bound to every person who 
 shall take the same for value, to the same extent as if the value 
 were personally advanced to them, or on their account, and at 
 their request (5-). Thus, if a bill, accepted gratuitously, (which 
 we will call an Accommodation Bill,) be indorsed by the drawer 
 to a third party for value, such party can recover as well against 
 the gratuitous acceptor as against the drawer who endorsed it. 
 But if the accommodating party be sued by the drawer, in whose 
 favour he accepted, it will be a sufficient answer to the action, 
 that the plaintiff gave no valuable consideration for it. 
 
 A bill may be made payable " at sight," or at a certain period " Sight" 
 after sight, or on demand, or at so many days after date, or "at 
 usance." "Sight" here means "acceptance," or "protest for 
 non-acceptance," and not a mere private exhibition to the 
 drawer (r). Tf no time be stated for payment, it is payable on 
 demand. "Usance" means the usage of the countries between "Usance." 
 which bills are drawn, with respect to the time of payment. 
 
 A negotiable bill for less than 20s. is void (s) ; a bill for 20s. Under 5/. 
 and less than 51. must contain the name and address of the 
 payee, must bear date on or before the day of drawing it, and 
 must be made payable within twenty-one days after date, and is 
 not to be negotiated afterwards. Every indorsement thereon 
 must state the name and address of the indorsee, and every 
 signature must be attested by one witness {t). 
 
 An Inland Bill is one drawn in any part of the United King- Inland Bills. 
 dom, Isle of Man, Channel Islands, (or Islands adjacent, being 
 part of the Queen's dominions,) and made payable in, or drawn 
 on any resident in, the United Kingdom or said Islands {u). It 
 differs from a Foreign one, i. e., where either the drawer or 
 drawee reside abroad, (Scotland or Ireland are not, for this pur- 
 pose, foreign countries,) in the circumstance of not requiring to 
 be protested for "dishonour" {x). 
 
 The essence of a Bill being, that it is an assignment of a debt Transferor 
 — ^^an exception in favour of trade conceded by the Common ^'^'®' 
 Law to the Law Merchant (?/) — the Drawee is presumed to 
 
 (p) Byles on Bills, 111 (7th ed.). (0 17 Geo. 3, c. 30. 
 
 {q) Story on Bills (3rd ed.), sect. 1[)1. (u) 19 & 20 Vict. c. 97, s. 7, 
 
 (r) Byles, 66. {x) 2 Blackst. (Steph.) 109, n. (0). 
 
 («) 48 Geo. 3, c. 88, s, 2. {y) Post, Sect. 3. 
 
 M 6
 
 172- 
 
 SIMPLE CONTRACT DEBTS. 
 
 Where by 
 Indorsement 
 and Delivery. 
 
 Indorsement 
 in blank. 
 
 In full. 
 
 Value pre- 
 sumed. 
 
 have in his possession property of, and so to be the Debtor of, 
 the Drawer, to the amount for which the bill is drawn (z) ; the 
 right to which property the Drawer is, by the instrument in 
 question, desirous to make over to a third person. Being as- 
 signable, then, in its inception, as between Drawer and Drawee, 
 (if payable to "bearer," or "order,") the Payee may, in his turn, 
 assign it, either after or before it becomes due, to any other person 
 (called the "Indorsee") as a security for a debt due from him 
 to such person, though this assignment must be, if the bill be 
 payable to order, by " Indorsement, and Delivery " (a). The 
 words " Indorser" and "Indorsee" seem rather infelicitously 
 chosen to denote what they are intended to mean; the latter, 
 instead of meaning (as the word denotes) him whose name is 
 written, designating him for whose benefit the bill is "backed," 
 by the Indorser writing his own name. 
 
 It is said to be indorsed in "blank," if he simply writes his 
 own name on the back {b) ; " in full ;" or " specially," if he also 
 adds the name of the Indorsee {i. e , Assignee) (c). The effect 
 of the two modes of Indorsement is important. That of the 
 latter is to make the bill payable to the special Indorsee or his 
 order only, and he must then, in order effectually to assign it, 
 indorse and deliver it {d) ; for he who Indorses to a particular 
 person declares only his intention to be liable to that person's 
 Indorsement over. In the former case, the Indorsee, and every 
 subsequent holder of it, may pass it by delivery only, without 
 any indorsement {e). 
 
 When once a bill has been indorsed " in blank," though sub- 
 sequently indorsed " in full," the special Indorsee must have 
 indorsed it, or the special Indorser will not (though all the 
 other parties to it will) be liable to the holder. 
 
 Unlike the case of other debts on simple contract, a valuable 
 consideration given by the holder for a bill or note need not be 
 averred ; it is presumed ; and the onus probandi that there was 
 none lies on the defendant (y); but if a prima facie case be 
 made out by the defendant, as that it was obtained from him by 
 fraud or for an illegal consideration, the onus is thrown on the 
 plaintiff of showing that he gave a valuable consideration for it 
 in ignorance of the fraud or illegality. 
 
 (?) Smith's Handy-book of Bills, 6. (c) Ibid. 
 
 (a) Byles, 110. (rf) Byles, 109. 
 
 (b) Chitty & Hulme on Bills of Ex- (e) Wms. P. P. 77. 
 change, 227. (/) Byles, 87.
 
 BILLS, NOTES, CHEQUES, ETC. 173 
 
 The same general rules as apply to the nature of consideration 
 for other simple contracts {g), apply to the case of bills or notes. 
 
 And the same presumption, liable to rebuttal in favour of a 
 consideration, arises, though it were originally an Accommoda- 
 tion Bill. Nor is proof of its having been an accommodation 
 bill, as between the drawer and acceptor, any evidence of a want 
 of consideration in the holder {h) : nor would it be a defence as 
 against him. The words "value received" are not material in a "Value 
 bill or note. If inserted in a note, they mean value received 
 fi'om the payee by the maker. In a bill, drawn payable to a 
 third person, they are ambiguous ; they may mean " value 
 received" from the payee by the drawer, or from the drawer by 
 the acceptor (i). 
 
 Fraud in the creation of the debt totally avoids it both at Law Fraud, where 
 and in Equity, but will not prevail at Law against a holder who or in"Equitv.^*^ 
 took it himself bond fide, and paid value for It {J) : neither would 
 it be ground for the defendant at Law to obtain an Injunction in 
 Equity against such holder ; and notice of the fraud does not 
 make the holder {k) less a bond fide holder, unless he was a party 
 to it. Thus a wrongful possessor of a bill may pass a good title 
 to it by passing it by indorsement and delivery, or delivery only, 
 (as the case may be,) to a bond Jide holder. Equity, however, 
 will restrain the negociation of a bill unduly obtained in the first 
 instance (for the defence may not be available at Law as against 
 an innocent indorsee for value {I)), and cancel one over-due {m). 
 
 Thus we see the importance of being the "holder." If made Transfer by 
 payable to bearer, or to A. or bearer, it is negotiable and nego- Delivery, 
 tiated, and the legal ownership passes, simply by delivery. 
 
 The possessor of the bill, entitled at Law to recover its con- "Holder" and 
 tents, is, where the transfer is by indorsement and delivery, called 
 the " Holder ;" where by delivery only, the " Bearer" {n). 
 
 The Holder may, any time before maturity, (which is three Presentment 
 days after the time for payment expressed on the bill,) " present" Accept- 
 it to the Drawee for " acceptance" (o), whether it be a Foreign 
 or Inland Bill : his acceptance (if he accepts it) must be written 
 and signed by him, or some one authorized by him {p). If he 
 
 {g) Ante, p. 164. (/) Byles, 152. 
 
 (/i) Mills V. Barber, 1 Mee. & W. {m) Hodgson u. Murray, 2 Sim. 515. 
 
 4'25. („) Chitty on Bills of Exchange, 2C. 
 
 (i) Byles, 61. (o) Byles, 115. 
 
 (i) Chitty on Contracts, 589. { p) 19 & 20 Vict. c. 97, s. 6. 
 {k) Ibid. 
 
 M 7
 
 174 
 
 SIMPLE CONTRACT DEBTS. 
 
 For Payment. 
 
 Dishonour. 
 
 Feme coverte 
 Payee. 
 
 Promissory 
 Notes. 
 
 has refused to accept it, the Holder may sue either the Drawer 
 or any Indorser, though the bill be not at maturity, provided he 
 has given them notice of the non-acceptance (o). It is only in 
 cases of bills payable at, or a specified time after, "sight," that 
 presentment is absolutely necessary, in order to give "sight" to the 
 Drawee, or make demand on him, and fix the time of their be- 
 coming due, and give a right of action. And the presentment of 
 even such bills may be excused by their being in circulation ip). 
 The Holder may also, notwithstanding he has given such notice, 
 " present" it to the Drawee ''for payment," at maturity, with- 
 out thereby waiving his right against the other parties. 
 
 Where the bill has never been presented for acceptance, it 
 must still be presented for payment; and the holder will have 
 the same rights against the drawer and indorser as if it had been 
 accepted (q). 
 
 If the drawee has accepted, and has had it presented to him 
 for payment at maturity, and does not pay, the holder may 
 sue him for the amount ; or may, provided he has presented it 
 to the acceptor for ])ayment on the day it falls due, and given 
 notice — verbal notice is suflficient — of " dishonour," (which in- 
 cludes presentment and non-payment,) and " protested" it (if a 
 foreign bill) for non-payment, — sue either the drawer or any 
 indorser (r). The notice must be by the holder, or some party 
 to the bill hable to pay it, and must be given to all the parties to 
 it, save the acceptor. A " protest" is a solemn declaration by a 
 notary public, or by an inhabitant (if there be none) of the place 
 where the dishonour occurred, stating that payment or acceptance 
 has been demanded and refused. 
 
 The fact that a Bill is made payable to a person known to 
 any indorsee to be a married woman, is notice that it relates to 
 her separate estate. The wife's signature is, in practice, neces- 
 sary to make such a bill negotiable, though at Law the hus- 
 band's indorsement is enough {s). 
 
 A Promissory Note, or Note of Hand, is an absolute promise 
 in writing signed, but not sealed, to pay a specific sum of money, 
 at a time therein limited, or on demand, or at sight, {i.e., after 
 exhibition to the maker,) to a person therein named, or to his 
 "order," or "to bearer" (O- A note for less than 20s. is void(M). 
 
 (o) 2 Blackst. (Steph.) 118. 
 \p) Ibid. 117. 
 {q) Byles on Bills, 119. 
 (r) Ibid. 12*. 
 
 {s) Dawson v. Prince, 5 W. R. 813. 
 
 (0 Byles, 4, 55. 
 
 («) 48 Geo. 3, c. 88, s. 2.
 
 BILLS, NOTES, CHEQUES, EtC. 
 
 175 
 
 If for 20*. and less than 51., the same requisites in form must be Under 5/. 
 
 observed as in bills for that amount (x) ; but notes between those 
 
 amounts, payable to bearer on demand, are prohibited under a 
 
 penalty {y). The definition of an Inland Note is the same, 
 
 mutatis mutandis, as an Inland Bill. 
 
 The Law is the same as to the rights of holders of Promissory No acceptance. 
 
 Notes, as in the case of Bills, except as relates to acceptance, which 
 
 forms no part of that subject. Here the maker is both drawer 
 
 and acceptor, and to him the presentment for payment must be 
 
 made by the holder on maturity. 
 
 In all mercantile partnerships, one partner, by becoming a Partnership 
 
 . , ^ o ^ n \' 1 • • Bills or Notes. 
 
 party to bills or notes in the name oi the firm, {i. e., by signing 
 
 the name of the firm, or by signing his own individual name 
 for it, as "A. B., for A. B. & Co.,") binds the firm in partnership 
 transactions. This power does not apply, however, to partner- 
 ships which are not for ^^ mercantile!'' undertakings. 
 
 A summary mode of procedure is given to any holder of Bills 18 & 19 Vict, 
 or Notes suing in a Westminster or Palatine Court, or (if an 
 Order in Council so apply the Act) in any Court of Record in 
 England or Wales, where there is no defence on the merits : for 
 by filing an affidavit of service of the writ of summons he may 
 at once sign final judgment and sue execution thereon for the 
 amount and for costs ; and may issue one writ of summons 
 against all or any of the parties to the Bill or NoteCs). Before 
 this Act he had a distinct right of action against all the parties, 
 which he might have enforced either at the same time or by a 
 series of successive actions («). 
 
 Railway, Bridge, or other Companies' debenture notes, are 
 simply promissory notes (b). A lost bill or note may be sued Lost Bill, 
 on at Law (c). 
 
 A Cheque is, in Legal effect, an Inland Bill of Exchange, Cheques. 
 drawn on a Banker, payable to bearer on demand (c?). The 
 banker, however, unlike drawees generally, is liable to pay before 
 acceptance (e) ; there being an implied contract, on his part, to 
 pay (/), if he has money of the customer's suflficient. A Under 5/. 
 cheque payable to bearer on demand is valid (g), although it be 
 for less than 205. : and one for more than that sum and less 
 
 {x) 17 Geo. 3, c. 30. 
 
 (y) 7 Geo. 4, c. 6. 
 
 {z) 18 & 19 Vict. c. 67, s. 1. 
 
 («) Smith's Merc. Law, 265. 
 
 (&) Ante, p. 146. 
 
 (c) C. L. P. Act, 1854, s. 87. 
 
 (d) Byles, 10. 
 
 (e) Ibid. 12. 
 (/) Ibid. 
 
 (g) 23 & 24 Vict. c. Ill, s. 9. 
 M 8
 
 176 SIMPLE CONTRACT DEBTS, 
 
 than 51. was never subject to the restrictions imposed (Ji) on Bills 
 of Exchange under that amount. 
 
 If the drawer be prejudiced by the delay of the holder in pre- 
 senting it (e. g., if the Bank fail) he will be discharged. In other 
 words, the holder runs a risk by keeping it too long, 
 
 A Creditor, who has taken a cheque for his debt, cannot sue 
 for the debt till he has presented it, and been refused payment. 
 To prove that a debt has been paid by a cheque, the banker 
 must prove that he paid it, and it must be shown to have passed 
 through the hands of the Creditor. For this purpose the Cre- 
 ditor should be requested to write his name at the back of the 
 cheque, when he takes it as payment. After the drawer's death, 
 the banker must not pay the cheque unless he was ignorant of it. 
 
 Crossed Xo prevent their falHng into hands of persons for whom they 
 
 are not intended, cheques should be crossed with the name of a 
 particular banker, or with the words " and Company" or " and 
 Co.," written across their face. And any holder of the cheque 
 receiving it not fully crossed may insert the name of any banker 
 through whom he wishes it paid, and this will have the same 
 effect as though the drawer had crossed it (i). The effect of 
 crossing it is, that the holder can only obtain cash for it by paying 
 it into the drawer's bank through some banker, (if no particular 
 bank is named in the crossing,) or through the particular bank 
 named ; and the drawer's banker will not be justified, unless the 
 crossing is not plain (k), in paying it, except to some other 
 banker. Cheques payable to hearer on demand — even such as 
 are payable to the customer himself — require \d. stamp, adhesive 
 or impressed (J). If adhesive, the party affixing it should mark 
 on it his name or initials. 
 
 Forgery. It seems clear that a Drawee of a Bill, or a Banker acting for 
 
 his Customer, cannot, in case he pays a Bill where the Drawer's 
 signature has been forged, or the sum fraudulently enlarged 
 without the fault of the Drawer, debit the Drawer with the sum 
 so paid without his authority, or recover the amount from him. 
 But there are many conflicting decisions upon the question, 
 whether the party paying shall be allowed to recover back the 
 money from the person whom he has inadvertently paid (m). 
 
 I O U s. An I O U is a mere acknowledgment of a debt, and requires 
 
 no stamp, being merely evidence of the existence of a debt. It 
 
 (/)) 17 Geo. 3, c. 30. (/) 21 & 22 Vict. c. 20, s. 1. ; 23 & 24 
 
 (i) 21 & 22 Vict. c. 79, s. 2. Vict. c. Ill, s. 17. 
 
 {k) Ibiil, s. 4. {m) ] Story on Bills, 586 (n.), 3rd ed.
 
 BILLS, NOTES, CHEQUES, ETC. !"• 
 
 lias all the effect of a promissory note, (for it may be sued on at 
 
 any time,) except that it is not negotiable, and therefore does not 
 
 pass the legal ownership of the debt (j), and need not be in 
 
 writing (k). If it is not addressed to any one by name, it will, 
 
 liable to rebuttal by defendant, be taken as evidence of a debt 
 
 due to whoever produces it. 
 
 Seamen's waees are another privileged class of simple con- ^■ 
 
 ® r to 1 • J Seamen's 
 
 tract debts. Any seaman or apprentice, or any person authorized Wages. 
 
 on his behalf, may sue before two Justices acting in or near to under 50/. 
 
 the place at which his service terminated, or at which he has 
 
 been discharged, or at which any person upon whom the claim 
 
 is made is or resides, for any wages not over 501. (Z). 
 
 No suit for such wages, under 50/,, shall be brought in any 
 Admiralty or Vice-Admiralty, or Superior Court of Record, 
 unless the owner of the ship be Bankrupt or Insolvent, or the 
 ship be under arrest, or sold by authority of any Admiralty or 
 Vice-Admiralty Court, or the case be referred there by any 
 magistrate acting under the Act ; or unless neither the owner nor 
 Master are, or reside, within twenty miles of the place where the 
 seaman or apprentice was discharged or put on shore (»<). 
 
 Subject to the above provisions, the seamen, or any one or Admiralty 
 more of them, and the Master, may sue in the Court of Admi- diction."""' 
 ralty for wages or earnings in rigging and fitting out the ship, and 
 may arrest the ship as a security, or cite the Master or owners 
 personally (n). The foundation of the suit in that Court is the 
 service, not the hiring. The Jurisdiction of the Court may be 
 exercised by process against the ship, or the proceeds of a sale 
 thereof remaining in Court (o). 
 
 The seamen may also, subject to the above provisions, sue Common Law 
 either the Master or the owners in the Courts of Common Law 
 by "covenant" or "debt," where the contract is under seal, by 
 "debt" or "assumpsit" where it is not(p); i.e., the Courts of 
 Law have a Jurisdiction concurrent with the Admiralty Court. 
 
 Where one sues in both Courts for the same thing, a plea of 
 the pendency of the suit in the Admiralty Court is good (g). 
 
 (j) Blakely v. Brady, 2 Drury & 9th ed. 
 Walsh, 311. (o) Ibid. 
 
 {k) Bain v. Harris, 8 W. R. 79. (p) Ibid. 542. 
 
 (0 17 & 18 Vict. c. lO'i, s. 188. (q) Pritchard's Admiralty Digest, 
 
 (m) Ibid. s. 189. (1847), 472. 
 
 (n) Abbott on Shipping, 535, 536,
 
 178 
 
 SIMPLE CONTRACT DEBTS. 
 
 Assignee of 
 Part Owner. 
 
 Breaches of 
 Trust. 
 
 A joint and 
 several Debt 
 
 7. 
 
 Devastavits. 
 
 Stamping, 
 
 The Court of Queen's Bench will not prohibit the mariners of 
 a ship from proceeding in the Admiralty Courts (/•); for the con- 
 tract is joint there, but several at Law. 
 
 The plaintiff may be entitled, even as against the assignee of 
 a part owner under a composition deed (s). 
 
 To the above instances of simple contract debts may be added 
 Breaches of Trust (t). But if the instrument creating the trust 
 contain words to raise a covenant, and the trustee have executed 
 it, it will amount to a specialty debt (u). The Courts of Law and 
 Equity take the same view as to what constitutes a specialty (u). 
 " It is declared and agreed" amount to a covenant; but "give" 
 or "grant," in deeds after October 1, 1845, do not, except by 
 force of some Act (w). 
 
 The breach of trust constitutes a joint and several debt in 
 Equity, so that the cestui giie trust may proceed against the co- 
 trustees severally (a:), though he may still sue them jointly; if he 
 follow the latter course, the decree will be a joint and several 
 one, and the plaintiff may recover the whole amount from any 
 one of the defendants, who, however, will, in his turn, have a 
 right of contribution from his co-trustees (?/). 
 
 Devastavits are also simple contract debts (z), but these will 
 be moi'e fitly considered when we come to treat of Assets (a). 
 
 No deed or instrument shall be pleaded or given in evidence, 
 or admitted to be good, useful, or available in Law or Equity, 
 until the same shall be duly stamped. But it may be stamped 
 any time on payment of a penalty of 10^. over and above the 
 duty, together with (if the unpaid duty exceed 10/.) interest at 
 51. per cent. And if stamped within a year from the execution, 
 the Commissioners of Inland Revenue may remit the penalty, if 
 they shall think it not duly stamped by reason of accident, mis- 
 take, inadvertence or urgent necessity. But this provision shall 
 not apply to any instrument for the stamping of which, after 
 execution, any Law shall have provided, or the stamping whereof, 
 after execution, shall be forbidden by Law (h). 
 
 (r) Hook V. Moreton, 1 Ld. Raym. 
 398. 
 
 (*) Douglas V. Russell, 3 Sim. 533. 
 
 (0 Adey v. Arnold, 2 De G., M. & G. 
 432. 
 
 (tt) Ibid. 
 
 (i>) Wyncli V. Grant, 2 Drewry, 317. 
 
 (lo) Lord Montford v. Cadogan, 16 
 Ves. 637 ; 8 & 9 Vict. c. 106, s. 4. 
 {x) 7th Consol. Ord.r. 2. 
 (,(/) Hill on Trustees, 538. 
 («) Charlton v. Low, 3 P. Wms. 331. 
 (a) Post, Part IL 
 (i) 13 & 14 Vict. c. 97, s. 12.
 
 ( 1'9 ) 
 
 Section 3. 
 Assignment of Specialty and Simple Contract Debts. 
 
 Assignment inter vivos, 
 Ahsoltilely. 
 At Law. 
 
 Legal Assignments. 
 Bills nitd Notes. 
 Bail and Replevin Bonds. 
 Exchequer Bonds. 
 Railway Bonds. 
 India Bonds. 
 Exchequer Bills. 
 Stock. 
 Equitable Assignment. 
 Tihhitts V. George. 
 fVhere remedy is at Law. 
 In Equity. 
 
 Foluntary Transfers. 
 
 By Declaration of Trust. 
 Bridge v. Bridge. 
 M'Fadden v. Jenkyns. 
 Ex parte Pye. 
 Scales V. Maude. 
 
 In Equity. 
 
 Voluntary Transfers — continued. 
 By Assignment. 
 
 Notice to Legal Owner. 
 
 To Debtor. 
 Fortescue v. Burnett. 
 
 Policies. 
 Blakely v. Brady. 
 Edwards v. Jones. 
 Antrobus v. Smith. 
 Parnell v. Hingston. 
 Ward V. Audland. 
 Seamen's Wages. 
 Bottomry Bonds. 
 
 Mortgage of Debts. 
 
 Agreement to sell a Debt. 
 Bequest of Debts. 
 Donatio mortis causa of a Debt. 
 
 Assignment 
 inter vivos. 
 
 Absolute. 
 
 Having endeavoured to explain the requisites for the creation 
 of a vahd legal debt, let us next examine its property of devolu- 
 tion ; in other words, its transferability from the original Creditor. 
 
 Debts are, like any other property, alienable by their owner, 
 and that either by an assignment inter vivos, or by will, abso- 
 lutely or by way of security. The chief difficulty is to determine 
 the proper mode, and the effect, of such an alienation. 
 
 And first, of absolute assignments inter vivos. Supposing the 
 debt to be, as most are, a legal one, that is, one which is recover- 
 able in a Court of Law, and therefore, generally, recoverable in 
 a Court of Law only (at least during the Debtor's life), it will be 
 most usually, and safely, aliened at Law by a formal deed con- At Law. 
 taining a power of attorney to the assignee to sue in the assignor's 
 name (c). 
 
 Such a transfer however is hardly, speaking accurately, an Legal Owner- 
 assignment : certainly not an assignment of the debt. The !' '^ ,'\"^ 
 
 ^ , "^ . . assignable. 
 
 transferee is rather an attorney than an alienee (f/). This mode 
 of transfer was, at first, connived at, and afterwards recognized, 
 by the Courts of Common Law, although there was no such 
 
 (c) For Form of Assignment, Wms. 
 P. P. Apjjcndix (B.) 
 
 {d) 4 Cruise's Dig. 96. 
 
 N 2
 
 180 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Voluntary 
 Assignment. 
 
 Notice 
 necessary. 
 
 Fraudulent 
 Assignment. 
 
 Bills of 
 Exchange. 
 
 thino- originally, by the Common Law, as the assignment of a 
 chose in action, on account of the supposed guilt of perpetuating 
 (by extending to another) the right of litigation {e). Even now 
 they look to the assignor as the only real Creditor ; and his 
 name only appears in the action by the transferee. To such an 
 extent is this doctrine carried, that, even if the assignor became 
 bankrupt or insolvent, the transferee shall still sue in his name, 
 and not in that of his Bankruptcy or Insolvency Assignees (/). 
 
 If aliened by deed with a power of attorney, a Court of Law 
 will not stop to inquire whether any valuable consideration was 
 given for the transfer ; but notice of the assignment should be 
 given by the assignee to the Debtor (^), or to one of the Debtors (A), 
 if several ; and the deed of assignment, and the original security, 
 if any, should be delivered to the assignee. " Why," said Mr. 
 Justice Burnet, "is delivery not as requisite on such an assign- 
 ment, as in the conveyance of a thing in possession ?" (i) A 
 voluntary assignment then of a debt by deed will be valid at 
 Law, as between the Debtor and Creditor, and those claiming 
 voluntarily under them ; and the same is the doctrine of Equity ; 
 but if fraudulent, as well as voluntary, it will be void both at 
 Law and in Equity, by 13 Eliz. c. 5, as against subsequent bona 
 fide Creditors (at all events Judgment (A) Creditors) of the assignor, 
 though not under 27 Eliz. c. 4, as against subsequent purchasers 
 for value (/). 
 
 Previously, however, to the establishment at Law of valid 
 transfers of the right to debts, by powers of attorney, an excep- 
 tion to the general rule had been made, as a concession in trade 
 to the custom of merchants (m), in the case of Bills of Exchange, 
 which were then, as they are now, assignable, toties guoties, by 
 indorsement and delivery or delivery only (n), so that the holder 
 might sue on them in his own name without power of attorney, 
 and by such assignment is transferred, if the bill be negotiable, 
 ?iot the right only to the property, but the property itself. 
 Thus an assignment by deed of a Bill of Exchange implies, at 
 Law, a covenant by the assignor to do nothing in derogation of 
 the deed, and entitles the assignee to sue in his own name the 
 
 (e) Lampet's case, Coke's Rep., 
 Part X. 48 a. 
 
 (/) Winch V. Keeley, 1 T. R. 619. 
 
 (g) Wms. P. P. 329. 
 
 (A) 2 Spence, Eq. Jur. 858. 
 
 (i) In Ryall v. Rowles, 1 Ves. sen. 
 
 3G2. 
 
 (/>■) Ante, p. 14. 
 
 (1) The 27 Eliz. only relates to land. 
 
 (m) VTms. P. P. 5. 
 
 (n) Ante, p. 172.
 
 ASSIGNMENT OP SPECIALTY AND SIMPLE CONTRACT DEBTS. 181 
 
 assignor for breach of his covenant in parting with the bill con- 
 trary to the grant (o). This seems an important inroad upon 
 the old doctrine of the non-assignability at Law of choses in 
 action (jy), and of that which required delivery of personal chat- 
 tels in possession to perfect the gift ((7). Subsequently, the Notes. 
 Legislature extended the exception to Promissory Notes, placing 
 them in all respects, in this particular, on the footing of Bills of 
 Exchange (r), as it at the same time extended it to the assignment 
 of Bail-Bonds («), and as it afterwards extended it to Replevin 
 Bonds (<). 
 
 The property in, as well as the right to, Exchequer Bonds, is Exchequer 
 assignable at Law by statute (m); and no assignment of them, any 
 more than of Stock, will be perfect, or, if voluntary, be perfected 
 in Equity, without the statutory formalities being complied 
 with. 
 
 Railway Bonds are also transferable, both as to their right Railway 
 and legal ownership, by deed stamped according to the Form in **" ^' 
 Schedule (E.) to 8 & 9 Vict. c. 16, s. 46 ; and after entry of the 
 transfer the transferee is entitled to the full legal benefit of the 
 Bond, so as to sue in his own name {w). 
 
 East India Bonds did not pass hy delivery alone, (though the India Bonds, 
 money secured and the property in the bond was thereby trans- 
 ferred at Law and in Equity,) (x), so that the Company was not 
 liable to pay them in whosesoever hands they might he{y). 
 (New) East Lidia Debentures pass by delivery, or delivery or 
 deed {z). 
 
 Exchequer Bills are bills of credit issued by authority of Go- Exchequer 
 vernment. They are not, however, considered " Government se- ^''^^' 
 curities" (a) ; but a power to invest in parliamentary stocks or 
 public funds will authorize, at least, a temporary investment in 
 them (Z>). They are for various sums, and bear interest generally from 
 \hd. to 2\d. per diem per 100/., according to the usual rate at 
 the time. The capital may be received at the Treasury at the 
 rate originally paid for it, the holders being exempt from all risk 
 
 (o) Aulton V. Atkins, 18 C. B. 249. 5 Exch. 280. 
 
 {p) See 3 Sm. & G, 347 (n.) (x) 51 Geo. 3, c. 64, s. 4. 
 
 {q) Wins. P. P. 32. {y) Glasse v. Marshall, 15 Sim. 73. 
 
 (r) 3 & 4 Ann. c. 9 ; 7 Ann. c. 25, s. 3. {z) 21 & 22 Vict. c. 3, s. 5 ; 22 & 23 
 
 (s) 4 Ann. c. 16, s. 20. Vict. c. 39, s. 5. 
 
 (0 11 Geo. 2, c. 19, s. 23. (a) Ex parte Chaplin, 3 Y. & C. 397. 
 
 (a) Addison on Contracts, 984. (6) Matthews v. Brise, 6 Beav. 239. 
 
 {w) Vertu V. East Angliati Railway,
 
 ],S2 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 of fluctuation. Notice of the time at which outstanding Ex- 
 chequer Bills will be paid off is given by public adver- 
 tisement (c). 
 South Sea Neither South Sea(<i) nor Bank Stock are public stocks, and 
 
 Banl^- " have been held not to be Government securities, or good 
 
 New East securities." The New East India Stock, funded by the Act 
 
 India Stock, Qg & 23 Vict. c. 39, which received the Royal Assent the same 
 day as Lord St. Leonards' Act, 22 & 23 Vict. c. 35, is not a 
 fitting investment for trust monies, notwithstanding the clause in 
 22 & 23 Vict. c. 35, s. 11, sanctioning investment in East India 
 Stock (e). But Bank Stock would seem now to be a good security. 
 Stock in the public funds, which is a debt to the stockholder 
 Government fi'om the Government as representing the public, is assignable at 
 Securities. Law(/), and the assignee becomes legal owner of it, as well as 
 
 of the right to it. Such transfer is effected by the owner (or his 
 attorney duly appointed under a power), merely signing his name 
 in the Books of the Bank of England (g). The transferee's 
 signature is not necessary, although the Act requires the trans- 
 feree " shall underwrite his acceptance" (/i). It does not lie in 
 the mouth of the transferor to say, " You have not accepted the 
 stock, and therefore I am holder "(i): the transferee's accept- 
 ance, like that of any donee, being to be presumed. 
 Bills of Lading '^^^^ transfer, by indorsement and delivery, of property in 
 Docl^ the London Docks (/j), and of Bills of Lading (Z), as well as of 
 
 Warrants. ^|jg right to it, though not strictly germane to our present pur- 
 
 pose, since they are choses in possession, furnish another illus- 
 tration of the statutable relaxation of the old rule (that choses in 
 action are not assignable at Law) in cases approaching the most 
 nearly to those under our consideration : a cargo at sea, or wines 
 in bond, being physically as incapable of delivery as a debt. 
 Equitable ^° much for the nearest approach which the Courts of Common 
 
 Assignment at Law admit to a regular legal assignment of a legal chose in 
 
 '^, ' action. They are, however, content with much less than this, 
 
 V alue neces- . . . 
 
 sary. provided the assignment be for value. In such a case, if they 
 
 can discover in the transfer, or attempted transfer, what would 
 
 clearly amount, in the view of a Court of Equity, to a good 
 
 (e) M'Culloch's Commercial Diet. (/() Foster v. Bank of England, 8 
 
 611. Q. B. 705, 
 
 (d) Trafford v. Boelim, 3 Atk. 444'. (i) Ibid. 704, per Patteson, J. 
 
 (e) In re Coliie Valley and Ilalstead (/r) Ex parte Davenport, Mont, & 
 Railway Co., Times, Nov. 16, 1859. Bligh, 165. 
 
 (/) 1 Geo. l,st. 2, c. 19. {I) 18 & 19 Vict. c. Ill, ss. 1, 2. 
 
 {g) 1 1 Geo. 4 & 1 Will, 4, c. 13, s. 13,
 
 ASSIGNMENT OP srECI.LTV AND S.MPLE CONTRACT DEBTS. 183 
 
 Equitable assignment of the debt, they will uphold it (.«). Thus 
 ^,1; till dispense with a deed, and even «^" -'-^f-f: ^i ,.„„„„„,,. 
 Nor will thev lequiie forimd notice to the Debtor ol the tian.Iei , _.^_^^^ ^^^^^^ 
 U i ufficient if t be shown that the fact of the assignment was 
 Vm.:::!^eated and assented to hy l.im. Thus if A ve,M ly 
 agrees with B. (his Creditor) to repay hnn sums advanced, out of 
 a debt due to A. from C, this is a good transfer to B rf 
 the latter debt. But then, as the agreement .s only a sunple 
 ZZ, not only must a valuable consideration have been g.ven 
 by B to A. for the transfer, but also it is nubspensable that C, 
 or hU solicitor, have assented to it(«), and have received some A.e,u. 
 
 „ ie atn fo'r such assent; and moreover, it wo^d seem., the .^^ 
 orioinal debt or assignment, or both, were secured by a specialty, 
 such securitv must be delivered to the assignee. 
 
 This was 'the case in mUtts v. George io), an important one T,„;,,us 
 on the subject, in which Lord Denman thus stated the doc- g„„,. 
 1 n of the Courts of Law:-" None of the authorities which 
 have been cited show that it is necessary the assignment should 
 be in writing, in order to pass an equitable interest, although m 
 very many of the cases there was a writing ; and, as to express 
 assent, it is undoubtedly held, that in order to give an ac ion at 
 Law the Debtor must consent to the agreed transfer of the debt, 
 and that there must be some consideration for his promise to pay 
 
 " michever rfle above modes of assignment may have been '^^'^^ 
 adopted, whether the voluntary transfer by deed, with a power „„,.,. l.w. 
 of attorney, or the m.re equitable transfer without writing for 
 value, the assignee-assuming that the assignment is ™»de 'hrect 
 to and not in trust for, him, and that the debt be ^ogal debt 
 and that he has an easy remedy by suing at Law m the name 0/ 
 the „.«j«<-r,-has generally no Iocs standi in Eqtuty for relief 
 J ■ »!,„ n»V,tor\ lifefn^ And a demurrer has been allowed 
 
 with a power of attorney) were voluntary, (and one for .)5 is creditor. 
 voluntary,) does it constitute him a Creditor, so as to entitle him 
 to be plaintiff in a Creditor's suit against the estate of the Debtoi 
 after his death ir). For if a Court of Law will recognize (as it 
 
 („) Heath .. Hall, 4 Taunt. 326. (?) Sewell .. Moxsy, 2 Sim-, N. S. 
 
 r„"i Williams?;. Everett, 14 East. 582. 191. 
 
 l:j TL & Ell. 107. ('•) 11—"^ - ^^^«^^'"^'^'^' ' ''"• 
 
 (p) Keys V. Williams, 3 Y. & Coll. 337. 
 
 462.
 
 184 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 does) both the modes of assignment above described, what need 
 "Where Creditor is there of redress in Equity ? And if a bill would lie by the 
 Equity"^ ^" simple act of assigning the bond, a suit in Equity might be 
 brought on every bond that is given (s). However, if the assignor 
 should threaten to impede the assignee in his legal proceedings, 
 or should he act in collusion with the Debtor, or refuse to allow 
 his name to be used, or should the case be one of any com- 
 plexity, or the circumstances of it special, it may be necessary to 
 have recourse to Equity to compel the use of the assignor's 
 name, and enjoin him from impeding the assignee. And in such 
 a case Equity would entertain Jurisdiction to the extent of com- 
 pelling (and ordering) payment of the debt to the plaintifF(i). 
 Assignments Again, if the debt has been settled in trust, or assigned without 
 
 ^ •' a power of attorney, or the trust has been assigned, it then 
 becomes an Equitable chose in action, and cognizable only in 
 Equity ; and a distinct occasion and ground for Equitable 
 Jurisdiction arises in favour of the cestui que trust, or assignee. 
 And this we will now proceed to consider. 
 Voluntary And first, of Voluntary transfers. 
 
 These may be effected in either of two ways, that is to say, 
 either by a Declaration of Trust, or by Assignment (u). 
 
 The present Master of the Rolls has thus stated the difference 
 in the nature and results of these two sorts of transfers, though 
 admitting the distinction to be " very thin" (x). " If a person 
 possessed" (i. e., legally possessed) " of stock execute a declara- 
 tion of trust of that stock in favour of a volunteer, he would 
 clearly constitute himself a trustee for the volunteer, and Equity 
 would execute the trust, and compel a transfer of the stock to the 
 cestui que trust: but if the same person executed an assignment 
 of the stock in favour of the volunteer, and no transfer of the 
 stock took place, this would clearly be considered as no more 
 than an imperfect gift, in which the donor has not done all that 
 it was in his power to do, and the donee would get no assistance 
 from a Court of Equity to compel a transfer of the stock. On 
 the other hand, if the stock stood in the names of trustees, and 
 the beneficial owner of it executed, in favour of a volunteer, an 
 assignment of such stock, and if notice of that assignment were 
 given to the trustees, who acknowledged the validity of it, and 
 acted upon it, they would thereupon, through the act of the 
 
 (s) Per Lord Loughborough in Cator 332. 
 V. Burke, 1 Bro. C. C. 434. (u) 2 Spence Eq. Jur. 886, 898. 
 
 (t) Hammond v. Messenger, 9 Sim. (x) Beech v. Keep, 18 Beav. 292.
 
 ASSIGNMENT OF SPECIALTY AND SIMPLE CONTRACT DEBTS. ^ ^'^ 
 
 owner, become trustees for the volunteer, and Equity would 
 enforce the due performance of that trust in his favour" (i/). 
 
 And first, of those transfers which operate by way of Declara- 
 tion of Trust. 
 
 The Reports present, indeed, a bewildering mass of cases 
 upon this subject. It will be my endeavour to extract from them 
 the final principles (if they can be called principles) at which the 
 Court of Chancery appears to have arrived. 
 
 An irrevocable transfer of a debt, then, may be effected, inta' How etfected. 
 vivos, in Equity, by the Legal or Equitable (3) owner of it, {e.g., 
 by a cestui que trust,) by means of even a voluntary verbal 
 declaration on his part-though, if it be verbal, much would 
 depend on the correct report of the words— either that he him- 
 self, or that his trustee, or that the Debtor, shall be a trustee of 
 it for the intended donee («). 
 
 A declaration of trust is considered, in a Court of Equity, as Tran-f «>» 
 equivalent to a transfer of the legal interest in a Court of Law(&). complete. 
 But the transaction must be complete. As the debt is, strictly 
 speaking, not transferable at Law, "everything must be done in 
 the way of transfer that such a thing is capable of "(c) ; that is 
 to say, " the relation of trustee and cestui que trust between the 
 donor and donee must be actually established "(^) : though there 
 is considerable diversity in the cases as to what does or does not 
 constitute that relation {e). The declaration may be either by 
 way of direction to the Debtor to be trustee for the assignee, or 
 that the transferor himself, or his trustee, shall hold it in trust 
 
 for him. 
 
 When and why is such a transfer irrevocable ? The answer Whyjj'^e- 
 appears to be, "when and because the donor has clearly con- ''°''^ 
 stituted the trusteeship," for that relation may be "created 
 gratuitously; the absence of consideration being, in general, 
 absolutely immaterial" (/), and the revocability of voluntary 
 settlements in favour of Creditors having no application to cases 
 of pure bounty (^). This being so, the declaration will be 
 irrevocable unless the donor reserve to himself a power of revo- 
 
 (y) Bridge V. Bridge, 16 Beav. 321. (d) Meek v. Kettlewell, 1 Hare, 470. 
 
 (z) Meek i;. Kettlewell, 1 Hare, 464. (e) 16 Beav. 320. 
 
 This was an assignment. (/) Kekewich v. Manning, 1 De G., 
 
 (a) 2 Spcnce, Eq. Jur. 897. M. & G. 190. 
 
 (b) CoUinsont;. Patrick, 2 Keen, 134. (g) Paterson «. Murphy, 11 Hare, 90. 
 
 (c) Ibid. 55. 
 
 N 5
 
 186 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 M'Fadden 
 
 V. 
 
 Jenkyns. 
 
 Assent of 
 Debtor. 
 
 Notice to him. 
 
 Ex parte Pye. 
 
 cation (A). The Court, to judge whether the trusteeship has 
 been constituted, " looks at the acts (i) and writings of the 
 donor," particularly such as " are simultaneous with the de- 
 claration, and any subsequent acts which are in accordance 
 with it." 
 
 M'Fadden v. Jenkyns (k) seems the principal case in Equity 
 in which a debt was voluntarily assigned by a mere direction to 
 the Debtor to hold it in trust for the donee. Lord liyndhurst (/), 
 in supporting, on appeal, the transfer in that case, refers to the 
 notice as a not immaterial circumstance, in fact as constituting 
 the declaration. " The testator," (he says, — in that case the 
 transferor,) — "in directing Jenkyns" (the debtor) "to hold the 
 money in trust for the plaintiff" (the donee), "which was 
 assented to, and acted upon, by Jenkyns, impressed, I think, a 
 trust upon the money which was complete and irrevocable. It 
 was equivalent to a declaration hy the teatator that the debt was 
 a trust for the plaintiff." 
 
 It would seem, however, that the assent to the assignment, 
 and so a contract, on the part of the Debtor, though a material 
 ingr-edient in the case, as we have seen (m), at Law, is not so in 
 Equity (n). 
 
 Mr. Spence thought even notice to the Debtor of the de- 
 claration was unnecessary (o). Lord Eldon has said, " If a 
 party declare himself to be trustee of stock, it becomes the pro- 
 perty of the cestui cjue trust, without more, and the Court will 
 act upon it"(p): and, according to the present Master of the 
 Rolls, "If the absolute owner of a fund say, I hold this stock 
 in trust for A. B., the trust is complete" {q). And it would seem 
 the same rule would hold good in the case of other choses in 
 action besides stock. But these expressions can hardly be 
 taken literally. Thus, Vice-Chancellor Wood thinks notice to 
 the debtor of the assignment is necessary (r), and notice (if the 
 donor be an equitable owner) to the legal owners has been said to 
 be also necessary (5), though the authorities for such an assertion 
 seem hardly to bear it out ; but the declaration of trust need not 
 
 (h) Wheatley v. Purr, 1 Keen, 557, 
 arguendo. 
 
 (i) Bentley t>. Mackay, 15 Beav. 19. 
 {k) 1 Hare, 458. 
 (/) 1 Phill. 157, 158. 
 (w) Ante, p. 183. 
 
 (n) Ex parte South, 3 Sw. 392. 
 (o) 2 Spjnce, Eq. Jur. 896. 
 (p) Ex parte Pye, 18 Ves. 149. 
 (q) Beech v. Keep, 18 Beav. 285. 
 (r) Paterson v. Murphy, 11 Hare, 
 (f) Hill on Trustees, 37.
 
 187 
 
 ASSIGNMENT OF SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 be communicated to the cestui <,ue trust (i), nor need the instru- 
 ment declaring the trust {u), nor the original security, it any, be 
 
 delivered to the donee. ^ . r i „ 
 
 Contrast, however, with the above statements of the Law, by 
 
 LordEldonandSir J.Romilly,thatofLordChancellorCranworth, 
 
 in Scales V. 3Iaudeix\ (where the alleged declaration of trust was Scales 
 a letter by the mortgagee to the mortgagor giving up the mort- Maude, 
 gage debt,) in which he is reported to have said, that it the 
 letter did contain a declaration of trust, it would fail for want of 
 consideration, and that a mere declaration of trust in favour of a 
 volunteer is inoperative." 
 
 A transfer, which is intended to be, but is invalid as, an assign- 
 ment, cannot be upheld as a declaration of trust, for that would 
 be contrary to the intention, which is, ex hjpothesi, that the 
 transferor should not be a trustee for the assignee (2/V , ^ , , 
 
 Lastly, it seems that the declaration of trust need not be Dedarat.on 
 express If it clearly appears from the transferor's acts, in rela- express, 
 tion to' the debt, that he considered that, though legally (or 
 equitably) vested in him, it had become the property of another, 
 and that his intention was detinitively to denude himself of that 
 property, that will be enough {z). The mere expression, how- 
 ever of an intention to declare a trust, will not be enough (a). 
 
 Next, let us suppose an owner of a debt, whether by specialty As^js— t by 
 or simple contract, to transfer it by a formal, though voluntary, 
 assignment, by deed or writing, without a power of attorney, 
 to A. merely, or to A. in trust for B. This is the simplest case. 
 Such an assignment will entitle A. or B. to come into Equity 
 and have the assistance of that Court to obtain the fund and 
 a declaration that the assignor, still the legal owner, is a trustee 
 for him : although, as has been observed, if the assignment 
 had contained a power of attorney to A., (who was wilhng to put 
 the debt in suit,) there would generally be a sufficient remedy 
 at Law by recovering the debt there in the assignor's name. 
 
 In an assignment by deed, whether by a legal or equitable No Power of 
 owner of a debt, either to the assignee without more, or to him necessary. 
 iri trust for a third party, no power of attorney is necessary in 
 order to relief in Equity (6). 
 
 (0 Tate .. Leithead, Kay, 658. (.) 2 Spence Eq. Jur. 807^ 
 
 , ) Hall .. Palmer; 3 Hare, 537. (a) Bayley ,,-. Boulcott, 4 Russ. 347. 
 
 J) 6 Do G., M. & G. 51. W 3 Martin's Convey. (Davidson,, 
 
 (y) Ward V. Audhuid, 8 Beav. 2n. 605.
 
 188' SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 The assignee of any interest can sue in a Court of Equity 
 (where Equitable ground exists for his resorting there) alto- 
 gether independently of such a power (c), and therefore where 
 the interest assigned is purely equitable the insertion of a power 
 is inoperative (<i). 
 Notice toTrus- Where the transfer is by the Equitable owner, according to one 
 
 tee of Assignor ^jrancli of the Court, notice to his trustee of the transfer seems ne- 
 not necessary. 
 
 cessary (e) ; but, according to another, unnecessary (/) ; at least as 
 
 between the donor and donee ; though as between the donee and 
 subsequent donees, and even as between him and the donor's 
 Bankruptcy and Insolvency assignees, it is necessary {g) to 
 perfect his title. But if the trustees had transferred the fund 
 before they had notice of the assignment, the assignee would 
 have no remedy against them (//). In all these cases the trans- 
 action, if perfect, is no longer an agreement, which, if it had 
 been, being voluntary, Equity would have refused specifically 
 to enforce (i). But it must be perfect, and, as in the case of 
 declarations of trust, everything must be done to perfect it which 
 the nature of the case admits of. Thus, if the subject of the 
 assignment, e. g., stock, be capable of being legally assigned, 
 it must be transferred. The Court of Chancery will not execute 
 a voluntary deed to transfer stock, "but if the stock were trans- 
 ferred, so that the legal conveyance were effectually made, it 
 will enforce the Equitable interest" (if any) " declared in the 
 deed of covenant" [k). " If you want the assistance of the Court 
 to constitute you cestui que trust, and the instrument is volun- 
 tary, you shall not have it" (Z). 
 
 In a voluntary transfer, operating as an assignment, notice 
 must be given generally to the Debtor, though it has been 
 supported without such notice {in) ; and the original security, 
 if any, and the assignment, must be delivered to the assignee. 
 " If a person, with a view to confer the beneficial interest in 
 a debt, in which he has also the legal interest, to another, makes 
 Delivery. an assignment by writing, particularly if by deed, and delivers 
 
 the assignment and the original security, if any, to the donee, 
 or a trustee for him, showing the intention to put both the one 
 
 (c) Ibid. J. 127. 
 
 (rf) 5 Jarm. Byth. (Sweet), 297. {h) 4 Kay, 719. 
 
 (e) Bridge v. Bridge, 10 Beav. 321. (i) Antrobus v. Smith, 12 Ves. 46. 
 
 (/) Donaldson v. Donaldson, Kay, {k) Ellison v. Ellison, 6 Ves. 662. 
 
 719. (0 Ibid. 661. 
 
 {g) Bartlett v. Bartlett, 1 De G. & (w) 2 Spence Eq. Jur. 896.
 
 ASSIGNMENT OF SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 and the other, and consequently the debt, out of his control, 
 and also giv^es notice to the Debtor so as to make him a quasi Notk^e^to 
 trustee for the donee, then the transaction is binding and com- 
 plete, and the donor becomes a trustee of the legal interest, which 
 must, of course, remain in him, for the donee" (w). 
 
 Thus an assignment, though voluntary, of a life policy— the 
 grantor having given an irrevocable power of attorney to the 
 assignee to receive and recover the policy monies— is good 
 acrainst the executors of the assignor (o). 
 ^In some cases, however, notice to the Debtor has been dis- Fortescue 
 pensed with. Thus, in Fortescue v. Barnelt (p), Barnett as- Barnett. 
 signed a policy of assurance, of which he was legal owner, to 
 trustees on trusts, delivering up the deed, but keeping the policy, 
 and giving no notice to the Company. Sir J. Leach held the 
 assignment to be complete. In general, however, the assignee 
 of a^ policy, whether absolute or by way of mortgage, should, in 
 order to perfect the assignment against third persons, give notice 
 of the transfer to the Society ; and he should inquire of the proper 
 officer whether notice has been given the Society of any previous 
 charge upon the policy (q). The assignee of a life policy need 
 not have an interest in the life insured (r). 
 
 So mBlakelyw. Brady {s), Reilly assigned by deed, containing Blakely 
 a power of attorney, a debt due to him on a note of hand, to a g^ady. 
 trustee on trust, and delivered up the deed ; but it was not proved 
 that notice had been given to the Debtor. The assignment was 
 upheld by Lord Plunket, and the trustee obtained an injunction 
 to restrain Reilly's administrator from suing on the note, as legal 
 owner of the debt. 
 
 In Edwards V. Jones {t), on the contrary, though the bond Edwards 
 was delivered to the assignee, the assignment was in writing, and ^^^^^^ 
 the intention to assign indisputable, but no notice was given to 
 the obligor, the transaction was considered incomplete, but 
 whether or not on the want of notice does not appear. Lord 
 Plunket, when pressed in Blakely v. Brady with Edwards v. 
 Jones, distinguished the cases by the circumstance, that in the 
 latter there was no assignment hy deed, but a mere memorandum 
 of assignment endorsed on the bond ; an unsatisfactory distinc- 
 
 (n) 2 Spence Eq. Jur. 907. (</) Williams v. Thorp, 2 Sim. 257. 
 
 (o) Pearson v. Amicable Society, 7 (r) 5 Jarm. 311. 
 
 ■^ R 629. (0 2 Drury & Walsh, 311. 
 
 \p) 3M. & K. 36. (0 1 Mylne & Craig, 226. 
 
 189
 
 190 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Antrobus 
 
 Smith. 
 
 Parnell 
 
 V. 
 
 Hingston. 
 
 Ward 
 
 V. 
 
 Audland. 
 
 Seamen's 
 Wages. 
 
 Bottomry 
 Bond. 
 
 Mortgage of 
 Debts. 
 
 Agreement to 
 sell a Debt. 
 
 tion, if in Meek v. Kettlewell (u), Vice-Chancellor Wigram was 
 right in considering that a deed has no more effect than a simple 
 writing. 
 
 In Antrobus v. Smith (x), on which the Lord Chancellor re- 
 lied in Edwards v. Jones, Mr. Crawford wrote (on the receipt 
 for one of his subscriptions in the Forth and Clyde Navigation) 
 and signed, a memorandum, assigning to his daughter all the calls 
 of his subscriptions, but as the memorandum was not delivered 
 to her, it was held, that the transfer was incomplete as an assign- 
 ment, and to have deemed it a Declaration of Trust would have 
 been contrary to the intention, which was to assign. 
 
 In Parnell v. Hingston, the trusts of a voluntary assignment 
 by deed on trusts, with a power of attorney, of mortgage monies, 
 and notes of hand (as well as of personalty in possession), were per- 
 formed at the suit of a cestui que trust, the trustees having refused 
 to carry them out (?/). 
 
 In Ward v. Audland {z), an assignment by deed, with a power 
 of attorney, of a mortgage debt and policy of assurance, neither 
 the mortgage deed nor policy being delivered, or notice given, 
 was considered invalid ; but the plaintiff afterwards recovered at 
 Law (a). 
 
 A seaman may assign his wages by way of security, and the 
 assignee will be preferred to the assignor's other Creditors. 
 
 A bottomry bond is assignable in Equity, and is a negotiable 
 instrument in the view of the Admiralty Court {h). 
 
 For the transfer of debts inter vivos by way of security, see 
 post, ^' Mortgages of Debts."" 
 
 How all this awful jumble of Law and refinement of dis- 
 tinctions without a difference would be saved, if one uniform 
 rule of action, both at Law and in Ecjuity, were observed as to 
 the assignability and mode of assigning, all choses in action ! 
 
 An agreement for the sale of a debt need not be in writing ; 
 and will, if for value, be specifically enforced in Equity. Thus, 
 an agreement to sell, at two shillings and sixpence in the pound, 
 certain debts proved under a Commission of Bankruptcy, was 
 decreed to be performed, even at the instance of the assignor ; 
 and so was a similar agreement by assignees in Bankruptcy, to 
 sell, at a given price, a debt due to the Bankrupt (c). " Damages," 
 
 (u) 1 Hare, 464. 
 {x) 12 Ves. 46. 
 {y) 3 Sm. & Giff. .337. 
 («) 8 Beav. 202. 
 
 (a) 6 De G., M. & G. 43. 
 {!>) Abbott's Shipp. 115. 
 (c) Adderley v. Dixon, 1 S. & S. 607 
 Wright V. Bell, 5 Price, 325.
 
 ASSIGNMENT OF SPECIALTY AND SIMPLE CONTRACT DEBTS. 191 
 
 said Sir J. Leacli, in the first-named case, " might be no com- 
 plete remedy, being to be calculated merely by conjecture ; and 
 to compel the plaintiff (the assignor) to take damages, would be 
 to compel him to sell the annual provision during his life, for 
 which he had contracted, at a conjectural price. It is true that 
 the present bill is not filed by the purchaser, but by the vendor, 
 who seeks not the uncertain dividends, but the certain sums to 
 be paid for them. It has, however, been settled by repeated 
 decisions, that the remedy of Equity must be mutual ; and that 
 M'here a bill will lie for the purchaser, it will also lie for the 
 vendor" (d). 
 
 The transfer of mortgage debts, by will, will be considered in Bequest of 
 a subsequent part of this work. Debts. 
 
 Of the transfer, by will, of other debts, there is little special 
 to say, except as to the words by which they will pass. Under 
 a bequest of debts, a bill of exchange drawn in testator's favour, 
 and delivered by him to his banker, and a cash balance in his 
 banker's hands, will pass (e). The bequest of a debt due on a 
 particular security, passes capital only ; and, e converso, the 
 bequest of arrears of a debt will not pass principal (/). 
 
 A debt may be transferred, also, by way of donatio mortis Donatio mortis 
 causa, that is to say, when a Creditor, in his sickness and ^'^^^'^' 
 in expectation of his dissolution (g) near, delivers the security for 
 the debt into the donee's hands to keep, either for himself, or as 
 trustee for a third person. Bonds and mortgage deeds, and 
 Bills of Exchange, and cheques so delivered, will pass the debts. 
 But the gift is revocable by the donor (/*), and is to take effect 
 absolutely only in the event of his death in that sickness (i). 
 It will be liable, however, in the hands of the donee, to the 
 debts of the donor (k), and to legacy duty (/), but the assent 
 of the executor is not necessary, except as against Creditors, to 
 perfect the title of the donee {m). 
 
 Payments made, or acts bond fide done, under powers of Payments 
 attorney by any trustee or executor are good, although the po'^^^g^Jof'^ 
 donor of the power be dead, or have avoided it, provided the Attorney. 
 death or act avoiding it were not known to the trustee or 
 executor at the time of payment (n). 
 
 {d) 1 S. & S. 612. (i) 3 Mac. & G. GGi. 
 
 (e) Carr v. Carr, 1 Mer. 541 (n.) (k) Drury v. Smith, 1 P. Wms. 40k 
 
 (/) Wms. Executors, 1077. (l) 8 & 9 Vict. c. 7(), s. 4. 
 
 (g) Tate V. Hibbert, 2 Ves. jun. 111. (m) Wms. Executors, 695. 
 
 (;<) Bumi V. Markham, 7 Taunt. 224. («) 22 & 23 Vict. c. 35, s. 26.
 
 ( 192 ) 
 
 Section 4. 
 Specia I Rem edies — Set-off — Sureties — Agen cy. 
 
 1. Arrest on Mesne Process. 
 
 2. Ne exeat regno, 
 
 3. Lien. 
 
 At Law, 
 
 Particular. 
 
 General. 
 In Equity. 
 
 Vendor' s Lien. 
 Stoppage in transitu. 
 
 4. Set-off. 
 
 At Law. 
 
 In Equity. 
 
 Crons Judgments. 
 
 In Bankruptcy. 
 
 In Admiralty Court. 
 
 5. Sureties. 
 
 Guarantie, what. 
 Creditor v. Surety. 
 " Time given." 
 
 Surety v. Debtor. 
 
 V. Creditor and Debtor. 
 
 V. Co- Surety, 
 At Law. 
 In Equity. 
 In Bills. 
 In Bankruptcy. 
 6. Agency generally. 
 
 " Delegatus non potest," &c. 
 
 Sub- Agents. 
 
 Different sorts of Agents. 
 
 How appointed. 
 
 Remedies of Principal v. Agent. 
 
 Agent V. Principal. 
 
 Third Persons v. Principal. 
 
 Principal v. Third Persons. 
 
 Agents V. Third Persons. 
 
 Third Persons v. Agents. 
 Receipts and Payments by and to 
 
 Agents. 
 Revocation of Agency. 
 
 Special 
 Remedies. 
 
 Arrest on 
 mesne process. 
 
 Superior 
 Courts. 
 
 Besides the ordinary remedies of Specialty and Simple Contract 
 Creditors, namely, of proceeding according to the practice of the 
 Common Law Courts, to Judgment, if the remedy be at Law, or 
 according to the practice in Equity, to a Decree, if the remedy 
 be there, three extraordinary remedies may be here noticed, 
 two of which are Judicial, and the other a non-Judicial one, viz., 
 \. Arrest on ilfes/ie Process. 2. K ne exeat regno. 3. Lien. 
 
 1. Arrest on Mesne Process (i. e,, the arrest of the body of the 
 Debtor in execution before final Judgment against him) is, as a 
 general rule, abolished (o) ; yet, in exceptional cases, it is still 
 Law. 
 
 Thus, if the Creditor, suing at Law, satisfy a Judge of one 
 of the Superior Courts of Common Law, that the debt is 201. or 
 upwards, and that the Debtor is about to leave England, unless 
 apprehended, he may, except as to such Debtors who are privi- 
 leged from arrest (p), obtain an Order for arresting him, and 
 holding him to bail {q). And, when arrested, he shall remain in 
 custody until he has given a Bail bond to the Sheriff, or have 
 made a deposit of the sum endorsed on the writ of capias, with 
 10^. for costs (r). 
 
 (o) 1 & 2 Vict, c. 110, s. 1. 
 (/>) Who are, ante, p. 53. 
 
 {q) 1 & 2 Vict. c. 110, s. 3. 
 (r) Ibid. s. 4.
 
 S1»ECIAL REMEDIES SET-OFF SURETIES — AGENCY. 193 
 
 As to the New County Courts, on proof of a 20L debt, and County Courts, 
 that there is probable cause for believing that the Debtor is 
 quitting England to delay the Creditor applying, the Judge may, 
 on the application of the Creditor, issue a warrant to the High 
 Bailiff for his arrest (s). 
 
 2. Analogous to the Common Law remedy of arrest on mesne 2. 
 
 process is, — where the Creditor's demand is an equitable money 
 demand actually due, or the balance of an account (t), — the extra- 
 ordinary remedy of a writ of ne exeat regno. This is grantable by 
 the Court of Chancery, on motion ex parte, where the plaintiff is 
 apprehensive that the defendant is about to leave the kingdom for 
 the purpose of avoiding the plaintiff's demands. 
 
 The Clerk of Records and Writs may receive a written copy of 
 a bill praying a ne exeat, upon a personal undertaking of the 
 plaintiff or his solicitor to file a printed one within fourteen (m) 
 days. The writ is forwarded to the Under-sheriff of the County 
 into which it issues, who executes it by causing the party 
 personally to come before him, and give sufficient security, to 
 the amount indorsed on the writ, that he will not attempt to go 
 beyond the seas, without leave of the Court, and, on his re- 
 fusal, by committing him to prison {x). 
 
 S. " Lien," — or the non-judicial remedy to which we have re- 3. 
 
 ferred, — is the " Right to retain possession of goods, till a debt ^'^"" 
 due from the owner to the possessor of them is paid" (g). 
 
 The right which a Judgment Creditor has to his Debtor's pro- At Law. 
 perty, by the Judgment, seems improperly called a lien (z) ; nor 
 can he take in execution property held by the Debtor in right of 
 a lien (a). At La\v, the right attaches on personalty only, and is 
 either a "particular" or "general" lien. 
 
 A "particular" lien is the right to retain the very goods in Particular, 
 respect of which the debt arises, and attaches principally (6), 
 where the possessor is compellable by Law to receive the goods 
 (as, e. g., an innkeeper) ; or where by his labour he has improved 
 them ; or saved them from the perils of the sea, or enemies. 
 
 A "general" lien is a right to retain the goods in respect of General. 
 the entire balance due to the Creditor, so far as it arises from 
 business done ; and accrues either from express or implied con- 
 
 («) 14 & 15 Vict, c, 52, s. 1. [y) Hammond v. Barclay, per Grose, 
 
 (0 Whitehouse v. Partridge, 3 Sw. J., 2 East, 235. 
 377. (?) 2 Spence Eq. Jur. 798. 
 
 (u) 15 & 16 Vict. c. 86, s. 6. (a) Legg v. Evans, 6 M. & W. 41. 
 
 (j) 2 Dan. Ch. (Head!.) 1290. (i) 5 Jarm. Byth. (Sweet), 3. 
 
 O
 
 194 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Seamen and 
 Masters. 
 
 Part Owner. 
 
 In Equity. 
 
 Unpaid Pur- 
 chase-money. 
 
 Stoppage in 
 transitu. 
 
 tract,- or the custom of trade (c). The right ceases, however, 
 with the possession ; nevertheless, in such a case, the party whose 
 right of lien is so lost may, on the strength of the right of pos- 
 session which it gave, bring "trover" for the goods, alleging 
 them to be his property (d). 
 
 Seamen have a lien on the ship for their wages (e), and also 
 on post-office packets (f) and freight (g), and upon the cargo, so 
 far as it is subject to freight, but not qua cargo (h). 
 
 The Master of the ship has the same lien for his wages as the 
 seamen (z) Lien is not the proper term to be applied to the 
 right of a part owner of a ship to be reimbursed, out of freight, the 
 expenses of its repairs [k) ; but in respect of such freight he stands 
 clearly in the position of a Creditor, and, as such, he has a right 
 to require, by a suit and declaration in Equity against the co- 
 owners, the gross freight to be applied in the first place to such 
 reimbursement (/). 
 
 Part owners of a ship are tenants in common of it, but joint 
 owners of her use and employment (m). 
 
 In Equity, lien attaches against pei'sonal or real estate ; the 
 rules as to the lien against the personal estate are the same as at 
 Law (7i) ; and in the case of the right which it gives to the vendor 
 or purchaser of an estate for unpaid or prepaid purchase-money, 
 it constitutes a sort of equitable mortgage, which will be more 
 properly considered in a future part of this work (o). 
 
 A few words must be said on another sort of lien, which 
 was first allowed in Equity (p), though now also at Common Law, 
 viz., Stoppage in Transitu. This happens where one merchant 
 consigns goods to another on credit, and before they reach him 
 the consignee becomes bankrupt or insolvent. Here the seller, 
 in virtue of his original ownership, has a right to recover posses- 
 sion, if he can, of the goods while they are on their way. This 
 right is enforced by the vendor giving notice to the carrier 
 having the immediate custody of the goods, who must retain 
 them, and himself becomes responsible if he delivers them to the 
 vendee after notice ; and if they get into the vendee's possession, 
 
 (c) Wms. P. P. 28. 
 
 (rf) Legg V. Evans, 6 M. & W. 41. 
 
 (<?) Abbott on Shipping, 518,9th ed. 
 
 (/) 2 Dodson's Adm. Rep. 103. 
 
 ig) Ibid. 510. 
 
 (h) 2 VV. Rob. Adm. Rep. 59. 
 
 (ij 17 & 18 Vict. c. \Qi, s. 191. 
 
 (k) Green v. Briggs, 6 Hare, 400. 
 
 (l) Ibid. 
 
 (zn) Smith's Merc. Law, 199. 
 
 (?0 Gladstone v. Birley, 2 Mer. 401. 
 
 (o) Post, Division II. 
 
 (p) Snee v. Prescot, 1 Atk. 246.
 
 SPECIAL REMEDIES -SET-OPF — SUR ETIES — AGENCY. 195 
 
 the vendor may bring trover for them ; nor do they pass to his 
 bankruptcy assignees (q). 
 
 A solicitor's and attorney's (?) lien may be here considered. Solicitor's Hen. 
 He has a right to withhold the title deeds of his client, (but 
 not to enforce a claim against them, if in the client's hands (s),) 
 in respect of liis costs, provided they came into his possession 
 in his character of solicitor, although in respect of transactions 
 other than those out of which his debt arose (t). But if he 
 takes a security, his lien may be lost(?/), though not necessarily. 
 This lien is not (like a mortgage) "a charge or incumbrance, 
 but a dormant lien" (u), and is better to him than a mortgage, for it 
 extends to subsequent costs (x), and that even against his client's 
 Specialty and Simple Contract Creditors (y) ; but will prevail ». 
 
 against a Judgment Creditor only to the extent of costs incurred •^"'^S™^"*- 
 at the date of the Judgment (z). 
 
 An attorney's lien attaches to a Judgment obtained by his 
 client, and on costs payable to him in a cause in which he has 
 succeeded (a). 
 
 A solicitor has a lien on a fund in Court, realized in the suit 
 he has conducted ; but this lien differs from his lien on the 
 client's papers, in being limited to the costs of the particular suit, 
 and also in admitting of being actually enforced (b), by his giving 
 notice to the defendant not to pay the money until the costs are 
 satisfied (c). 
 
 The solicitor may, it would seem, assign his debt, and there- Assignable. 
 with his ]\en(d). 
 
 4. Where there are mutual debts between the plaintiff and de- 4. 
 
 fendant, though of a different nature, they may be set off at ^^''°^' 
 Law against each other (<?). Therefore, a specialty debt may be At Law. 
 set off against a simple contract debt. But the Common Law 
 gave no such right. 
 
 The same is Law, where either party sues or is sued, as exe- 
 cutor, where there are mutual debts between the deceased and 
 the other party (/). 
 
 Where either debt accrues by reason of a penalty, the debt 
 
 {q) Litt V. Cowley, 7 Taunt. 169. (,,) Turwin v. Gibson, 3 Atk. 720. 
 
 (r) Archb. Pr. 115. (z) 2 Con. & L. 111. 
 
 (s) Blundenj;.Desart,2Con.&L.125. (a) Cross on Lien, 218. 
 
 (/) 2 Sch. & Lef. 278. (b) Dan. Cban. (Ileadlam), 1354. 
 
 (u) Cowell V. Simpson, 16 Ves. 275. (c) Cowell v. Simpson, IG Ves. 282. 
 
 (v) Bull V. Faulkner, 2 De G. & Sm. (d) 2 De G. & Sm. 772. 
 
 '"77. (e) 2 Geo. 2, c. 22, s. 13; 8 Geo. 2, 
 
 (.r) Blunden v. Desart, 2 Con. & L. c. 24, s. 5. 
 
 125. (/) 2 Geo. 2, c. 22, s. 13. 
 
 o 2
 
 196 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Particulars. 
 
 Plea of Equi- 
 table Set-off. 
 
 intended to be set off must be pleaded specially, and the de- 
 fendant must aver what is really due (g). 
 
 A joint debt, though converted into a separate one, cannot be set 
 off against it, except by special agreement, and vice versa (h). The 
 cross demands must, to be the subject of set-off, be liquidated (i). 
 
 If an agent be permitted to deal as if he were a principal, a 
 Debtor of the principal, if ignorant of the representative character 
 of the agent, may, in an action by the latter, set off a debt due 
 from the agent to himself (A). 
 
 Pleas of set-off, containing claims of a similar nature to those 
 in respect of which a plaintiff is required to deliver particulars 
 wherever the writ has not been specially indorsed, shall contain 
 particulars of set-off(/). 
 
 A plea at Law of equitable set-off must, to be sustained, be 
 such as would furnish ground for an Injunction in Equity {m) ; 
 and a Court of Equity would not interfere, because the defendant 
 at Law fias a claim for damages against the plaintiff (w), or, if it 
 ever did, it would be on the ground that the transaction was one, 
 and the obligation on each side relating to the same matter (o). 
 
 When the cross demands are of such a nature, that if both 
 were recoverable at Law, they would be the subject of legal set- 
 off, then, if either of the demands is matter of equitable juris- 
 diction, the set-off will be enforced in Equity (jo). Therefore, 
 where the plaintiff in Equity is the assignee of the debt, he may 
 seek in Equity to set off that debt against a legal debt for which 
 the defendant is suing him at Law, and may, on that ground, 
 enjoin him (</). But the mere existence of cross demands be- 
 tween them is not a sufficient ground (r). 
 
 Nor will an unsettled account between the plaintiff in Equity, 
 and one who is suing him at Law for breach of a contract, be 
 ground for equitable set-off, though the subject-matter of the 
 account consist of dealings arising out of that contract (s). 
 In Bankruptcy, If the Debtor be bankrupt, and a legal debt (i. e. one recover- 
 able at Law) be due to him from the Creditor, the latter can 
 prove in the bankruptcy only for the balance, though the debts 
 be of different natures {t). 
 
 In Equity. 
 
 {g) 8 Geo. 2, c. 24, s. 5. 
 (h) Collyeron Partn. 681. 
 (i) Stimson v. Hall, 5 W. R. 368. 
 (A) Paley on Principal and Agent, 
 (3rd ed.) 325. 
 
 (/) Gen. Reg. (H. T. 1853), r. 19. 
 (ot) Stimson v. Hall, 5 W. R. 368. 
 («) Ibid. 
 
 (o) As in Beasly v. Darcy, 2 Sch. & 
 Lefr. 402, n. (b). 
 
 ( p) Clark V. Cort, Cr. & Ph. 154. 
 (<7) Ibid. 
 
 (r) Ravvson v. Samuel, Cr. & Ph. 161. 
 (i) Clark V. Cort, Cr. & Ph. 154. 
 (0 12 & 13 Vict. c. 106, s. 171.
 
 SPECIAL REMEDIES— SET-OFF — SURETIES— AGENCY. 197 
 
 The Court of Admiralty may, on claims for wages, adjudicate In Admiralty 
 questions of set-ofF(70' 
 
 A Judgment by the plaintiff cannot be set off against a former Cross Judg- 
 Judgment obtained by him, but ordered to be refunded by him ™^" ^' 
 to the defendant, and which the Debtor had assigned to his 
 attorney (a;). 
 
 Where there are cross Judgments in the same or in different 
 actions, in the same or different Courts, between parties substan- 
 tially the same, whether for debt, or damages and costs, or for 
 costs only, the one may be set off against the other (?/), without 
 prejudice to the attorney's lien for costs in the respective suits (z). 
 
 Interlocutory costs will be set off at Law against final costs, 
 where the payment of them has not been made a condition pre- 
 cedent to other proceedings (a). 
 
 The Court of Queen's Bench has set off costs due in Equity to 
 the defendant at Law, against the costs due at Law from him to 
 the plaintiff at Law (6). 
 
 So much of the Law of Principal and Agent, as relates to 5. 
 
 Sureties, seems necessary to be considered in a treatise like the "'"^^i^^- 
 present. 
 
 A Guaranty, so far as it is connected with the Law of Debts, Guaranty, 
 is a promise by one to answer for the payment of some debt in ^^ ^^^' 
 case of the failure (to do so) of some other person, who is himself, 
 and primarily, liable to pay it (c). It must (as we have seen) (d) 
 be jn writing; and the names (e), though not the signatures, of both 
 parties, must appear on it ; but the consideration need not appear 
 in writing, nor by a necessary inference from any writing ( /), 
 nor need the consideration be a benefit to the Guarantor himself; 
 it is sufficient, if it be so to the principal Debtor (g). 
 
 On the failure of the Debtor to pay, but not before, all the Creditor 
 
 ordinary rights and remedies of Creditors accrue to the Creditor o ^; 
 
 •^ o Surety. 
 
 against the Surety. 
 
 An agent, acting under a del credere commission (h), is not liable 
 to his principal till default in the purchaser, but is a surety, and 
 hardly that, as no writing is necessary to charge him. 
 
 If the Creditor does not reserve his remedies against the 
 
 (m) 3 Hagg. Adm. Rep. 420. (c) Smith's Merc. Law (5th ed.) 438. 
 
 (a-) Smith v. Selwyn, 5 W. R. 682. (rf) Ante, p. 165. 
 
 (y) Archb. Pr. 662. (e) Williams v. Lake, 8 W. R. 41. 
 
 (z) Gen. Reg. (H. T. 1853), r. 63. (/) 19 & 20 Vict. c. 97, s. 3. 
 
 (a) Archb. Pr. 665. (g) Morley v. Boothby, 3 Bingh. 113. 
 
 (6) Ibid. (h) What that is, post, p. 201.
 
 198 
 
 SPECIALTY AND SIMPLE CONTPvACT DEBTS. 
 
 Of trader. 
 
 " Time given' 
 
 a defence at 
 Law, 
 
 and still in 
 Equity, 
 
 Debtor 
 
 V. 
 
 Surety. 
 Surety 
 
 V. 
 
 Debtor. 
 
 surety, he discharges him by compounding with the principal ; 
 and the reservation must be on the face of the instrument of 
 compromise (i). 
 
 The rights of Creditors against the sureties of a Debtor who is 
 liable to become bankrupt are not affected by their being par- 
 ties to a deed or memorandum of arrangement by him (j). 
 
 As we have seen, the remedy of the Creditor seldom is in 
 Equity, during the life of the Debtor (k). 
 
 If the Debtor has assigned his property to trustees to pay 
 debts, the surety, if sued at Law by the Creditor, is entitled to 
 deduct sums which the latter has received from the trustees {I), 
 
 " Time given " by the Creditor to the Debtor, or any other cir- 
 cumstance which would discharge the surety in Equity, may now 
 be pleaded in bar of an action against him by the Creditor (w). 
 But such a contract, made with a stranger, will not discharge the 
 surety (n). Nor does this concurrent Jurisdiction, thus given by 
 the Legislature to Courts of Common Law, take away the previous 
 Jurisdiction of the Courts of Equity to interfere by Lijunction on 
 behalf of a surety so circumstanced, even if he has already pleaded 
 equitably at Law, and failed in his plea. A verdict without Judg- 
 ment is nothing in the contemplation of Equity ; therefore, if 
 after verdict, but before Judgment signed, the surety come into 
 Equity, he may (perhaps) be still heard there, though the cir- 
 cumstances as to time and his conduct may be such as to disen- 
 title him to do so : e. g., if he has delayed doing so for a fort- 
 night after the Verdict (o). 
 
 If the Creditor resort to his legal remedies against the Debtor 
 for a totally distinct debt from that in respect of which the 
 surety has made himself liable, the surety is thereby discharged, 
 2)ro tanto, in Equity (/;). 
 
 As the promise or undertaking by the surety to pay the debt 
 is with the Creditor, and not with the Debtor, the latter has no 
 remedies against the surety, in the event of his failure to pay 
 according to the guaranty. 
 
 After he has paid the debt, or any part of it, the surety may 
 sue the Debtor at Law, and so, tuties quoties, when he is com- 
 
 (j) Ex parte Glendinning, Buck. 519. 
 {j) 12 & 13 Vict. c. 106, s. 228. 
 (/.-) Ante, p. 167. 
 
 (0 Bardwell v. Lydall, 7 Bingh. 489. 
 (m) C. L. P. Act, 1854, s. 83. 
 
 (re) Eraser v. Jordan, 5 W. R. 819. 
 
 (o) Terrell v. Higgs, 1 De G. & J. 
 388. 
 
 (p) Pearl v. Deacon, 24 Beav. 186, 
 confirmed on appeal, 1 De G. & J. 46L
 
 SPECIAL REMEDIES — SET-OFF — SURETIES— AOENCY. 199 
 
 pelled to make a payment on account of it (7); and may be At Law. 
 indemnified in Equity (?•) out of any fund charged with, or out of '" Equity, 
 securities held for, the principal debt. 
 
 He may, even before he has paid, if the debt be due, come ^ 
 
 into Equity by a bill against the Creditor and Debtor, and compel Creditor and 
 the former to go against the latter, so as to exonerate himself 
 from his legal liability to the Creditor, provided that he indemni- 
 fies the latter from the risk, expense, and delay of such a suit (s). 
 
 After he has paid the debt, the surety shall be entitled to have 
 assigned to him, or a trustee for him, every Judgment, SpeciaUy 
 or other security held by the Creditor, and to stand in the 
 place of the Creditor, and to use all the remedies, and if need be, 
 and upon a proper indemnity, to use the name of the Creditor in 
 any action or other proceeding at Law or in Equity, in order to 
 obtain from the principal Debtor or any co-surety indemnification 
 for the advances made, or losses sustained by him : provided 
 always, that no such co-surety shall be liable to him beyond 
 a just proportioned). Previous to this alteration of the Law a 
 surety could not compel, in Equity, an assignment to himself 
 from the Creditor of a judgment obtained by the latter in a sepa- 
 rate action against the Debtor (u). 
 
 If one surety of several has paid all or more than his just pro- Surety 
 portion of the debt, he is entitled both at Law (or) and in Equity (y), Co-surety. 
 to " Contribution " from his co-sureties. The principle at Law At Law. 
 is, that where several persons are Debtors, all shall be equal in 
 proportion to their number, without regard to the insolvency of 
 any, or to other circumstances, which Equity will regard. Thus, 
 if A., B. and C. be co-sureties, and A. pay the debt, and C. be 
 insolvent. A., (the agreement being silent as to contribution,) 
 shall recover only one third from B. at Law {z), (although if B. 
 had become surety at A.'s instance, A. would be entitled to no 
 contribution) {a), but in Equity he shall recover one half (b). In Equity. 
 
 At Law, again, a discharge of one surety by the Creditor is a Discharge of 
 discharge of all (f). But it seems to be otlierwise in Equity (c/). "-^"•''^'y- 
 
 (q) 6 M. & W. ]r)3. 318. 
 
 (r) Wright V. Morley, 11 Ves. 22. (z) Browne t-. Lee, 6 B. & C. 689. 
 
 [s) Wright V Simpson, 6 Ves. 733. (a) Turner v. Davies, 2 Esp. 478. 
 
 (/) 19 & 20 Vict. c. 97, s. 5. {/,) Hole v. Harrison, Chanc. Cas., 
 
 («) Dowbiggen v. Bourne, 2 Y. & part I , 2 i6. 
 
 Coll. 462. (r) Clieetham v. Ward, 1 Bos. & 
 
 (.1) 1 Saund. (Wnis.) 264c, n. (e). Pull. 630. 
 
 (y) Dcringi'. LordWinchelsea, 1 Cox, (d) Ex parte Giflord, 6 Ves. 805.
 
 200 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Sureties are entitled to the benefit of any security which any 
 one of them has taken from the principal Debtor by way of 
 indemnity {f). 
 In Bills. In Accommodation Bills, as in others, the Acceptor, and, in 
 
 Notes the Maker, is, at Law, considered the principal Debtor, 
 though the Holder knew the acceptance to be without value {g) ; 
 and a composition with the Acceptor discharges the Drawer, on 
 the broad principle that though a man may discharge his own, 
 he may not another's, Debtor {h) : and in Equity, too, the Drawer, 
 or Maker, would seem to be the principal Debtor {i). 
 In Bankruptcy. A surety for a bankrupt, who has paid the debt for him, 
 (and thus become his Creditor,) though after petition for an adju- 
 dication filed, may " prove " in the Bankruptcy, not disturbing 
 dividends (k). 
 
 See further on this subject the very elaborate notes and collec- 
 tion of cases, 1 C. P. Cooper's Rep. (1837, 1838) 563 et seg. 
 
 As to agency generally, a man may contract a debt or obtain 
 credit by another, " Nam, qui facit per alium facit per se" (/). 
 An authority is exclusively personal and cannot be delegated, 
 unless from the express language used, or from the fair presump- 
 tion growing out of the particular transaction, or of the usage of 
 trade, a broader power may be intended to be conferred (m). 
 Ordinarily, a sub-agent is accountable only to the agent, and not 
 to the principal. But where he is employed with the express or 
 implied consent of the principal, there the agent will not be re- 
 sponsible for the conduct of the sub-agent, unless he has rendered 
 himself so by his own conduct ; but the principal's remedy will 
 be direct against the sub-agent, since a privity then exists between 
 Sub-agents. them (w), and for the same reason the latter will have direct 
 rights and remedies (e. g., for compensation) against the prin- 
 cipal (o). 
 
 Generally, the sub-agent is entitled and liable to precisely the 
 same rights and obligations in regard to the agent, as if the 
 latter was the real principal. 
 
 In "declaring" in an action on a contract by an agent, it may 
 be described as a contract by the principal. 
 
 No agents, however confidentially employed, are exempt from 
 
 Agency gene- 
 rally. 
 
 " Delegatus 
 non potest 
 delegare." 
 
 (/) 1 White & Tudor's L. C. 86, 
 2nd ed. 
 
 (g) Byles on Bills, 191. 
 
 (h) Ibid. 
 
 (j) Strong V. Foster, 1 7 C. B. 222, 223. 
 
 (k) 12 & 13 Vict. c. 106, s. 173. 
 (I) Broom's Legal Maxims, 734. 
 (ffi) Story on Agency, s. 14 (4th ed.). 
 (n) Ibid. s. 217 a. 
 (o) Ibid. s. 387.
 
 SPECIAL REMEDIES — SET-OFF — SURETIES — AGENCY. 201 
 
 disclosing the secrets of their principals, except attornies and 
 counsel. 
 
 Of mercantile agents the principal are factors, who are en- Factors and 
 trusted with the possession and disposal of goods, and brokers, "^"^ ^"^^^ 
 who are entrusted with the disposal without the possession. 
 
 A del credere is an agreement whereby the agent, for an Del credere, 
 additional premium, is bound to warrant the purchaser's solvency. 
 
 A master has such an interest in the personal labour of his Master and 
 servant, or apprentice, that he can claim such acquisitions as are 
 the result of it, though they are earned during the servant's 
 employment by another person, if with the master's leave, and 
 without his waiver of them ; and perhaps, (at least as to appren- 
 tices,) even if so earned without his leave, and in a service 
 different from that to which they are bound. The remedy of the 
 master seems to be an action against the employer for loss of 
 service, if he knew of the first retainer {p), or against the servant 
 for breach of contract; though these are remedies rather for 
 damages in consequence of the second retainer, than for the 
 profits accruing from '\t{q). 
 
 The appointment of an agent for the purposes specified in sec- Agent, how 
 tions 1, 2 and .3 of the Statute of Frauds,— which however do not ^PP"'"*^*^- 
 concern debts, — must be in writing ; and an agent appointed by a 
 Corporation aggregate, or to execute a deed, must be appointed 
 hy deed; otherwise, parol authority is sufl^cient. An agent is 
 either Bl general or special agent, — special, when delegated to do an Special. 
 act; general, when delegated to do all acts connected with a par- General, 
 ticular trade or employment (r). The authority of the husband to 
 the wife (5), and of partners, as each other's agents, is an instance 
 of an agency which the Law creates and implies. 
 
 A very essential part of the agent's duties is to keep a clear Principal 
 account, and communicate the result from time to time to his "■ 
 employer {t). If the items in such account can be proved, an 
 action of indebitatus assumpsit — if there be no bond or covenant 
 conditioned to account — will lie at Law for the balance (w). 
 
 Where there is a bond or covenant conditioned to account, 
 the principal's remedy w-ill be on the deed. 
 
 If the principal cannot prove them, and the agent refuse to 
 
 ip) Hargrave's Note to Co. Litt. (,?) Post, Ch. III., Sect. 4. 
 
 117. (0 Smith's Merc. Law, 125, 
 
 (?) Ibid. («) Ibid. 127. 
 
 (r) Story on Agency, s. 17.
 
 202 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Agent 
 
 V. 
 
 principal. 
 
 Principal 
 
 V. 
 
 third persons. 
 
 Third persons 
 
 V. 
 
 principal. 
 
 account, the principal may bring his suit in Equity for an 
 account (y). But the mere relation of principal and agent is not 
 sufficient ground for equitable relief (i^-); though since the recent 
 Common Law Procedure and Evidence Acts, the objects to be 
 attained by such a suit, — viz., discovery of books and papers, and 
 the defendant's evidence, — may in a great measure be obtained at 
 Law. 
 
 Money received by or deposited with a partner as agent, for 
 a particular purpose, for the benefit of the firm, and not applied 
 by him to it, becomes a debt proveable by the firm, as a principal, 
 under the agent's bankruptcy {x). 
 
 If such a case of money had and received for the use of the 
 principal can be brought under the notion of a trust, a Bill in 
 Equity will lie, though the party might have had his remedy 
 also at Law {y). 
 
 The chief remedy of the agent against the principal is — 
 L By way of action or set-off, at Law, for his commission, 
 advances made by him for his principal in the regular way of 
 business, and his regular expenses. 
 
 2. By action for contribution and reimbursement, if, acting 
 hona fide, he has, without his own default, incurred losses in the 
 course of transacting the business of the agency, and that, whether 
 there were an express promise of indemnity or not. 
 
 3. His right of lien (z); which is chiefly to be enforced by the 
 retainer of the property, for the recovery of which the action is 
 brought by the principal. The debt in respect of which the 
 right of lien attaches must be one due to the agent in his own 
 right, and due from the person for whose benefit he is acting {n). 
 
 The principal may take advantage of the contracts made by 
 his agent, and bring an action upon them (&), but then he must 
 adopt them altogether. Money paid by the agent may be also 
 recovered back by the principal, where either tlie consideration 
 fails, or he paid it by mistake, or it was extorted illegally from 
 him, or where he fraudulently applied it to an illegal purpose. 
 
 The principal is bound by the acts of his authorized agent. 
 
 Payment to an agent in the course of his employment is pay- 
 ment to his principal ; for it is a general rule that if a Creditor 
 employ an agent to receive money of a Debtor, and the agent 
 
 (v) Mackenzie v. Jolinston, 4 Madd. 
 373. 
 
 («') Spencer V.Spencer, 2 Y. & J. 219. 
 (a) Wright v. Hunter, 1 East, 20. 
 
 {tj) Scott V. Surman, Willcs, 405. 
 
 (z) Ante, p. 193. 
 
 («) Paley, 132. 
 
 (6) Smith's Merc. Law, 161.
 
 SPECIAL REMEDIES — SET-OFF— SURETIES — AGENCY. 203 
 
 receive it, the Debtor is discharged as against the principal (c)at 
 Law and in Equity {d), even though the money never reaches 
 the principal. But if the money is due on a bill or note, he 
 should see the agent is in possession of the security, or he will 
 not be discharged unless it reaches the principal (e). 
 
 Agents may sue third persons in their own names or in Agents 
 that of their principal (/), either at Law or in Equity {g), for third persons, 
 before the intervention of the principal the debt is considered as 
 legally due to the agent {h), unless fraud be brought home to the 
 principal ; for this would atfect the title also of the agent to re- 
 cover. An agent, — unless he bind himself by an express under- Thud persons 
 taking, and contracting as agent for a known and responsible agents. 
 principal, — incurs no persorial liability to third persons. But if he 
 does not state himself to be an agent, or states that, but does not 
 disclose his principal, he M'ill be personally responsible. So, if 
 he exceed his authority, he will be personally liable (i) for 
 damage done to the contracting party. So, if the agent has 
 received money to the use of his principal, and has not paid 
 it over; but not(j) if he has paid it over: and the maxim 
 " respondeat superior" applies {k). 
 
 Between a town agent, and a country client, there is no 
 privity {I). 
 
 Where an agent has a general authority to receive payments, Receipts and 
 he may give receipts for them, and his receipts are the receipts fnJ"o^Ageius 
 of his principal. But if he has not actually received the money, 
 his receipt will not bar the principal, for the principal would 
 not be bound if he had given the receipt, on proof of non- 
 payment (m). An agent cannot compound a debt without express 
 authority. 
 
 Payment by the agent of a debt due from the principal will 
 discharge the principal. A receipt by the Creditor to him will 
 have the same effect, if the principal has given him credit upon 
 the faith of the payment. Se a tender to an agent is a tender to 
 the principal. 
 
 In general the principal may revoke, expressly or impliedly, Determination 
 the agency at his own pleasure, and the agent cannot insist on °^ Agency. 
 
 (c) Russell V. Bangley, 4 B. & Aid. (/,) Paley, 361, n. I. 
 
 398. (0 Smith's Merc. Law, 172. 
 
 (d) Thomson v. Thomson, 7 Ves. {j) Cowper, 565. 
 
 473. (k) Cohh v. Becke, 6 Q. B. 930. 
 
 (e) 1 Eq. Ca. Abr. 145. (/) Ibid. 
 
 (/) Paley, 324. (m) Coppin v. Coppin, 2 P. Wnis, 
 
 {g) Bull. N. P. 130; 1 Atk. 248. 295.
 
 204 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 acting after the principal has withdrawn his confidence (n). 
 Such revocation takes place, as to the agent, from the time it is 
 made known to him (o). But — though there seems no direct 
 authority in our Law on the point — if the authority has been 
 partly executed by the agent, and the authority as to the un- 
 executed part does not admit of being revoked, and damage 
 would happen to the agent on account of the pro tanto execution, 
 the principal cannot revoke, at least without indemnifying the 
 agent (p). So where the principal has stipulated that the autho- 
 rity shall be irrevocable ((^). So where the agent has an interest 
 in the execution, or the authority is given for value, or as part 
 of a security, unless it was expressly agreed it should be revo- 
 cable (r). 
 
 The determination of the agency will determine the power of 
 any sub -agent (5), 
 
 The revocation takes place as to third persons, when it is 
 known to them (t). So it may be determined, 
 
 1 . By the renunciation of the agent. 
 
 2. By operation of Law, as by effluxion of time. 
 
 3. By change of state of the principal, including his bank- 
 ruptcy (at least as to rights divested out of him by the bank- 
 ruptcy). 
 
 4. By change of state in the agent; though things which 
 would incapacitate a principal do not necessarily incapacitate an 
 agent ; e. g., marriage and bankruptcy would not, though insanity 
 probably would. 
 
 5. By the death of either party, though the power was declared 
 irrevocable ; unless it were coupled with an interest {u). 
 
 6. By the extinction of the subject matter, or of the principal's 
 power over it, or by the complete execution of the agency. 
 
 («) Story on Agency (4th ed.), s. (r) Ibid. s. 477. 
 
 463. («) Ibid. s. 469. 
 
 (o) Ibid. s. 470. {t) Ibid. s. 470. 
 
 (p) Ibid. s. 466. («) Ante, p. 10. 
 {q) Ibid. s. 476,
 
 ( 205 ) 
 
 Section 5. 
 
 Time to sue — Interest — Death of Creditor — Release- 
 Payment — Appropriation. 
 
 1. Specialties other than Rent — In- 
 
 terest. 
 
 2. Rent.—Z ^ 4 IViU. 4, cc. 27, 42. 
 Entry — Distress — Ejectment. 
 
 2. Simple Contract Debts — Interest. 
 
 Seamen's Wages. — 4 Ann. c. 16. 
 
 Co- Debtors. 
 4. Ma.xim " Actio personalis." 
 
 County Court Cases. 
 
 Co-Executors. 
 
 Death of Co- Executor. 
 
 Deceased Seamen. 
 
 Death of Creditor during Suit. 
 
 5. Release. 
 
 At Law. 
 In Equity. 
 
 6. Payment. 
 
 7. Appropriation of Payments. 
 
 All actions of debt or covenant upon any bond or other spe- l- 
 
 1 • 1 c • 1 • 1 \ in Specialties 
 
 cialty (speaking here of specialties other than rent), and all (other than 
 actions of debt or sci. fa. upon any recognizance, must be '■^"^)- 
 brought within twenty years after the cause of action {w) — and 
 the same as to suits in Equity {x) — or within twenty years of the 
 removal of any of the plaintifTs disabilities of infancy, coverture, 
 lunacy. Imprisonment and absence beyond seas are not dis- 
 abilities entitling the plaintiff to further time {y). " Beyond 
 seas" has been already defined. 
 
 Twenty years' arrears of interest, unless they exceed the Interest, 
 penalty {z), ai-e recoverable on a specialty both at Law (a) and in 
 Equity (h), although it also relates to land, and 3 & 4 Will. 4, 
 c. 27, s. 42, limits the arrears of rent or of interest in respect of 
 sums of money charged on land to six years. Any rate of interest, 
 however high, may be agreed on between the Creditor and 
 Debtor (c) ; but where the contract, either express or implied, is 
 for a current or legal rate, or where interest is payable by any 
 rule of Law(c?), it shall be recovered at such rate only (e). 
 
 If no contract for interest were entered into, then upon all Where none 
 debts or sums certain, on any inquisition of damages, a jury may ^^^^^ 
 allow interest to the Creditor at a rate not exceeding the current 
 rate, from the time when such debts were payable, if such debts 
 or sums were payable under some written instrument at a certain 
 time, or if payable otherwise, then from the time when demand 
 
 ® 
 
 («;) 3 & 4 Will. 4, c. 42, s. 3. ' 
 {x) Ibid. s. 4. 
 
 (;/) 19 & 20 Vict. c. 97,s. 10. 
 {z) Ante, p. 142. 
 
 (a) Strachau v. Tlionias, 12 Ad. & 
 Ell. 558. 
 
 (i) Hunter i'. Nockolds, 1 M'N. & 
 G. 610. 
 
 (c) 17 & 18 Vict. c. 90, s. 1. 
 (rf) Where it is, post, Part II. 
 (0 17 lS: 18 Vict. c. 90, s. 3. 
 
 o 7
 
 206 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Notice of. 
 
 2. 
 Rent. 
 
 3 & 4 Will. 4, 
 c. 27. 
 
 Disabilities. 
 
 Extreme limit. 
 
 Arrears. 
 
 Cestui que 
 trust 
 
 V. 
 
 Trustee. 
 
 3 & 4 Will, 4, 
 C.42. 
 
 or payment shall have been made in writing, so as such demand 
 shall give notice to the Debtor that interest will be claimed from 
 the date of such demand until the time of payment, provided that 
 interest shall be payable in all cases where it is now payable by 
 Law (f). 
 
 No action shall be brought to recover any rent (g) — and the 
 same as to suifs in Equity (^) — but within twenty years from the 
 accruer of the right to bring it to the plaintiff, or those through 
 whom he claims ; with a further allowance of ten years from the 
 cesser of any disability of infancy, coverture or mental incompe- 
 tency, in case he shall be under it when such right accrued (i). 
 If any written acknowledgment of the plaintiff's rights, signed 
 by the party in possession, shall have been made to him or 
 his agent, the cause of action shall be deemed to begin from 
 such acknowledgement, or if several, from the last (j). But forty 
 years shall be a bar in every case, though a succession of dis- 
 abilities, even in the same person, continue throughout that 
 period (k). Yet the same person is entitled to successive periods 
 of ten years for successive disabilities, provided the aggregate 
 amount of such periods do not come to forty years. 
 
 Only six years' arrears of any rent are recoverable (Z). 
 
 The Statute does not operate between trustee and cestui que 
 trust in cases of express trust ; at least the right of the latter 
 to sue the former to recover the rent does not run against him 
 until a conveyance for value to a purchaser shall have been 
 made (w), unless he has waived his rights by acquiescence (n). 
 
 And the same is Law where the plaintiff is entitled not to the 
 rent itself, but to money secured in any manner upon land or 
 rent, or where land is charged by deed with the payment of 
 debts (o), including Judgment debts (p). 
 
 As the recovery of rent is out of the Statute, as between 
 express trustees and cestui que trusts, so also it is presumed 
 are arrears of it (q). 
 
 The above Act having so carefully provided for the subject of 
 rent, it seems strange that the other Act (r) we have referred to 
 
 (/) 3 & 4 Will. 4, c. 42, s. 28 
 further as to interest, post, Part il. 
 (^) 3 & 4 Will. 4, c. 27, s. 2. 
 (/.) Ibid. s. 24. 
 (i) Ibid. s. 16. 
 (j) Ibid. s. 14. 
 (*) Ibid. s. 17. 
 (/) Ibid. s. 42. 
 
 (tb) Ibid. s. 25. 
 
 (n) Ibid. s. 27. 
 
 (o) Sugden's Essay on the New Sta- 
 tutes, 105. 
 
 (p) Dillon V. Cruise, 3 Ir. Eq. Rep. 
 70 ; as to charge by will, post, Part II, 
 
 (q) Ibid. 
 
 (r) 3 & 4 Will. 4, c. 42,
 
 TIME TO SUE — INTEREST —DEATH OF CREDITOR, ETC. 
 
 207 
 
 should have passed upon it in the same Session, — which is still 
 Law, — requiring actions of debt and suits for rent on indenture of 
 demise to be brought within the same time, viz. twenty years (s), 
 of the cause of action or suit, — with a like further period for 
 disabilities, — as in the case of actions on bonds. 
 
 Its provisions, however, as far as they apply to rent, are con- C*^ P ^ f^ 
 
 ^ ' ' r J p ^ • J distinguished. 
 
 fined to actions of debt for rent on Indentures ot demise, and 
 the general distinction between the acts is, that cap. 27 is ap- 
 plicable only to demands secured on land : cap. 42, to personal 
 actions only {t). 
 
 If the landlord enter, or distrain, or bring ejectment for, the land Entry, Dis- 
 
 1 , . , . p ii c tress, and 
 
 or rent, he must do so within twenty years Irom the accruer oi Ejectment, 
 the right (u) to do so, or from a written acknowledgement of the 
 right to the party or his agent by the person in possession (y). 
 
 If the debt be a simple contract one, — including money levied 3. 
 
 1/-IT T •T-'*/\ Simple Con- 
 
 on a. Ji.fa. {w), — the Creditor must sue at Law, or in Jl,quity (x), tract Debts. 
 
 within six years of the cause of action (y) or suit, or some ac- 
 knowledgement in writing signed by the Debtor (z), or within 
 six years of the removal of any of the disabilities of infancy, 
 coverture, or lunacy (a). Imprisonment, and absence beyond 
 seas, are not disabilities. 
 
 The jury have, if the debt be a sum certain, the same power to interest, 
 give interest, where none is expressly reserved, and the Law 
 is the same, where a rate of interest was agreed on, or is payable 
 by a rule of Law, as in the case of specialty debts {b). 
 
 Interest is payable on bills and notes by the Common Law 
 though not expressly reserved (c). 
 
 Seamen must sue for their wages within six years, whether Seamen's 
 they sue in the Admiralty (tZ), or Common Law Courts (e), but wages. 
 they will have a further period of six years to sue in case of any 
 of the above-mentioned disabilities (/), except imprisonment and 
 absence. 
 
 Penalties, damages or sums of money given by Statute to Penalties. 
 " the party grieved," must be sued for within two years ( g). 
 
 (s) Ibid. s. 3. (z) 9 Geo. 4, c. 14, s. 1 (Lord Ten- 
 
 (<) Hunter «. Nockolds, 1 M'N. & G. terden's Act). 
 
 61.0. (» 21 Jac. 1, c. 16, s. 7. 
 
 (u) 3 & 4 Will. 4, c. 27, s. 2, (h) 3 & 4 Will. 4, c. 42, s. 28. 
 
 («) Ibid. s. 14. (c) Laing v. Stone, 2 Man. & Ryl. 
 
 (w) Hovenden v. Lord Annesley, 2 561. 
 
 Sch. & Lef. 607. (rf) 4 Ann. c. 16, s. 17. 
 
 (.r) 3 & 4 Will. 4, c. 42, s. 3 ; anto, (t>) 21 Jac. 1, c. 16, s. 3. 
 
 p. 147. (f) 4 Ann. c. 16, s. 18. 
 
 (u) 21 Jac. 1, c. 16, s. 3. (g) 3 & 4 Will. 4, c. 42, ?. 3. 
 
 . . O 8
 
 208 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Co-debtors. 
 
 " Actio Per- 
 sonalis," &c. 
 
 Form of 
 Action. 
 
 County Court 
 Cases. 
 
 Co-executors. 
 
 The absence beyond seas of one of two or more joint Debtors 
 shall not give the Creditor a further time against the joint Debtor 
 who is not beyond seas (_/). 
 
 Nor will the payment of a debt by one of several co-Debtors, 
 co-executors, or administrators, preclude any other of them 
 from insisting on the debt being barred by lapse of time under 
 21 Jac. 1, c. 16, s. 3, or 3 & 4 Will. 4, c.42, s. 3 {g). But the 
 19 & 20 Vict, is not retrospective, so that if the cause of action 
 were previous to it, such payment will be a bar to the Statute of 
 Limitations {h). 
 
 All such personal actions as are founded on any obligation, 
 contract, covenant, debt, or other duty, are transmitted to the 
 executors or administrators of the Creditor (i), and if their tes- 
 tator or intestate were the legal owners of the debt, the legal 
 ownership of it vests in them. 
 
 And the same is the case with regard to suits in Equity. 
 The maxim " Actio personalis moritur cum persona" is pecu- 
 liarly applicable to actions in form ex delicto ( ;*), and has no 
 application to results of contract (as debts are), when the breach 
 is of such a nature, as appears by the record to render the 
 personal estate less beneficial to the executor, which of course 
 it always does in the case of debts (k). The heir of the cove- 
 nantee of a personal covenant, e. g., to pay a sum of money, 
 cannot take the benefit of it, even though named (/). 
 
 If the cause of action accrued (^. e. if the debt became due) in 
 the life of the testator or intestate, the action must be in the 
 " detinet" i. e., the legal representative must sue in his represen- 
 tative character (»z). If the cause of action accrued after the 
 death, he may sue either as such, or not, at his option (n). 
 
 Any executor may sue in the New County Courts, as if he 
 were a party in his own right, and have judgment and execution 
 in like manner as in the Superior Courts (o). 
 
 If there are several executors, they must all sue, though 
 some of them be under seventeen years of age, or have not 
 proved, or have refused to prove (p). If one or more refuse 
 
 (/) 19 & 20 Vict. c. 97, s. 11. 
 
 (g) Ibid. s. 14. 
 
 (h) Jackson v. Woolley, 6 W. R. 
 686 (overruling the judgment of the 
 Queen's Bench in S. C, ib. 223, and 
 Thompson v. Waitlinian, 3 Drewry, 
 628). 
 
 (i) Wms. Exors., 5th ed. 700. 
 
 (_/') Broom's Legal Maxims, 3rd ed., 
 518. 
 
 (/f) 1 Saund. Wms. 217, n. (a). 
 
 (/) 6 Vin. Abr. Covenant (H.) 
 
 (/n) Wms. Exors. 1695. 
 
 («; Ibid. 
 * (o) 9 & 10 Vict. c. 95, s. QQ. 
 
 (/)) Wms. E.xors. 1692.
 
 TIME TO SUE — INTEREST— DEATH OF CREDITOR, ETC. 209 
 
 to join in the action, the Court will issue a summons ad sequen- 
 (lum simid ; and upon their non-appearance at the return of it, 
 will give judgment of " severance " {q). 
 
 The fore^oinff Law does not apply to the administrator of Joint Adminis- 
 o o ^ , T • • X • ^^ tration. 
 
 the executor, or the executor of the admmistrator, smce tliey 
 
 do not represent the testator or intestate, but it applies to the 
 executor of the executor in infinitum. 
 
 The Ecclesiastical Court prefers a sole to a joint administra- 
 tion, and never forces a joint one (r). 
 
 If the contract be made with executors jointly, and one dies, ^t^Law.^ ^^^ 
 so that the cause of action, and consequently the remedy, sur- executor. 
 vives, but not the duty, the survivor alone must sue : but the 
 deceased had an interest in the debt, therefore the plaintiff re- 
 covering shall account with him (s). But if the contract were 
 made to them severally, (i. e., if the interest were several,) even 
 though the terms be joint, the executor of him who dies first 
 may sue alone {t). 
 
 The executor of an assignee of a bail bond may sue on it (m). 
 
 If a sole creditor die after action commenced, but before judg- Of sole 
 
 p 1 /-I • 1 \ Creditor. 
 
 ment,his legal representative may (by leave of the Court or a judge) 
 "enter a siiggestion" of the death, and that he is such representa- 
 tive, and thereupon the action shall proceed (.r); and if suggestion 
 be made before the trial, its truth and the deceased plaintiff's title 
 shall be tried, and judgment shall follow upon such verdict,* as if 
 the legal representative had been the original plaintiff (?/). 
 
 Where a co-plaintiff in Equity dies, the suit abates, and an \n Equity 
 
 ^ 11 • 1 J Death or Co- 
 
 order, of course, (to the effect of the order to revive usual under creditor, 
 the old practice,) is obtainable, unless the interest of the deceased 
 survives wholly to the survivor {z). If it survives, the survivor 
 shall proceed alone, but shall be trustee of the debt recovered, 
 if joint and several, for the representatives of the deceased. 
 
 If the suit be in Equity by a sole Creditor, his death also ^f^^jl'^e^ 
 abates it, and a similar order to revive must be obtained by the 
 representative upon an allegation of the abatement ; and service 
 of such order shall have the effect of process to appear to a Bill 
 of Revivor (a). 
 
 If the unpaid wages and effects of any deceased seaman or Deceased 
 apprentice do not exceed 50/., the Board of Trade may pay them 
 
 {q) Ibid. n. (r). i-c) C. L. P. Act, 1852, s. 137. 
 
 (r) Ibid. 363. Oj) 'bid. 
 
 {s) Martin v. Crump, 2 Salk. 4'14'. (a) Smith's Chan. Pr. 465. 
 
 (0 Withers r. Bircham, 3 B. & C. 254. (a) 15 & 16 Vict. c. 86, s. 52. 
 
 (u) Nottv. Stephens, Fortescue, 367. 
 
 P
 
 210 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 over to the persons entitled, as widow, children, &c., without pro- 
 bate or letters of administration (&). So if there be a will made on 
 board ship, signed or acknowledged in the presence of, and 
 attested by, the master or mate (c). But if the will be not so 
 signed, the Board may refuse so to pay them over {d) ; so where 
 the will is not made on board ship, they may refuse to pay them 
 to any stranger, unless the will is signed as the Act directs (e). 
 3- 3. At Law, if a Creditor appoints his Debtor his executor (f), 
 
 at Law. or one of his executors (g), the debt is absolutely discharged ; 
 
 for the executor caimot sue himself, or himself and others. So, 
 too, if the executor were one of two or more joint or joint and 
 several Debtors (k), though he had refused to be executor (i), 
 for he must still be a co-plaintiff. But the appointment of 
 the executor of the Debtor to be the Creditor's executor is no 
 extinguishment (j). 
 
 The debt will be assets, however, in favour of the testator's 
 Creditors, where the assets are insufficient to pay all the debts. 
 If H. be bound to J. S. in a bond of 100/., and then J. S. makes 
 H. his executor, H. has actually received so much money, and is 
 answerable for it ; and if he does not administer so much, it is 
 a legal devastavit (k). 
 
 The debt is not extinguished, where the appointment of the 
 Debtor to be the representative is, by act of Law, not the volun- 
 tary act of the Creditor ; therefore his Debtor may take out 
 letters of administration to him, and though he cannot as 
 administrator sue himself for the debt, yet, after his death, his 
 executor may be sued for it by the intestate's representative (1). 
 
 A debt, provided it is due in presenti, from a man to a woman, 
 is released at Law by their marriage (m), but not, if the woman 
 be cestui que trust of the debt, for then the legal right to sue is 
 in the trustee {n). 
 
 So the marriage of the executrix of an obligee with the obligor 
 is only a temporary suspension of the right to recover the debt, 
 and not an extinguishment of it, for he may pay money to her 
 as executrix, and on her death intestate the obligor may be sued 
 by the administrator de bonis non of her testator (o). 
 
 (b) 17 & 18 Vict. c. 104, s. 199. (t) Co. Litt. 264 b (n. 1), 
 
 (c) Ibid. s. 200. (j) Bac. Abr. Exors, (A.) 10. 
 
 (d) Ibid. (k) 1 Salk. 306. 
 
 (e) Ibid. (/) Bac. Abr. Exors. (A.) 10. 
 
 (/) Wms. Exors. 1180; e. g., the (m) Gage or Gray «. Acton, 1 Salk. 
 
 holder of a bill, the acceptor, ibid. 1816. 325. 
 
 (g) Ibid. 1181. (n) 1 Bright's H. & W. 21. 
 
 (h) Ibid. 1180. (o) Bac. Abr. Exors. (A.) 10.
 
 TIME TO SUE INTEREST DEATH Or C'REDITOU, ETC. 
 
 In Equity, the debt will be considered as having been paid In Equity. 
 by the executor as Debtor, to himself as Creditor (p), and he 
 will be held accountable for it as general assets for the payment 
 of legacies (7) as well as debts. And it will retain its priority, 
 according to its nature, in the administration of legal assets in 
 the event of the death of the executor (r). 
 
 A mere voluntary declaration of the Creditor's intention to 
 remit a specialty debt, if it does not amount to a release of it at 
 Law, will not in Equity (5); but a forgiveness of it by will 
 will {t) ; and at Law, if the debt were by specialty, it must be 
 released by a release under seal, or at least by an intentional 
 cancellation of the specialty by the Creditor («) : however, facts 
 amounting to an " accord and satisfaction " may be pleaded at 
 Law by way of equitable defence to an action on a Bond ; though 
 they could not be pleaded legally, as a Bond requires to be 
 released by deed {v). 
 
 As husband and wife are not regarded as one person in Equity, 
 obligations entered into between them before or after their inter- 
 marriage will, in certain cases, be supported (.r). j^ 
 
 4. Payment. In the absence of mutual stipulation on the Payment, 
 subject and directions from the Creditor, the Debtor's duty is to 
 tender payment of the principal and interest at the proper time, 
 (and not to wait for a demand made,) and to the proper amount. 
 And to constitute a " tender " there must be an actual production 
 of the money; or it must be shown such production has been 
 dispensed with. 
 
 Money, or — (what is equivalent to it, if the debt be above 51, Tender, 
 except the Debtor be the Bank of England or its branches) — Bank 
 notes, are alone a legal tender iy\ and payment in that mode may 
 be claimed by the Creditor. To the amount of 405. silver is 
 a legal tender (sr), whether it be tendered in part payment of a 
 debt exceeding 40s., or amounting to that in the whole. Copper 
 is a legal tender to the amount of \2d. Gold coin is, of course, a 
 legal tender to any amount. The precise or a larger sum is 
 a legal tender. County Bank notes are not a legal tender, 
 but if not objected to will be sufficient (a). 
 
 But the tender of a larger sum requiring change is no (legal) 
 
 (p) Freakley V. Fox, 9 B. & C. 134. (v) Lord Petre d. Stubbs, 25 L.T. 81. 
 
 (9) Wins. Exors. llS'k (Jr) Cannell v. Buckle, 2 P. Wms. 
 
 (r) Turnery. Cox,8 Moo.P.C.C.288. 243 ; and post, Ch. III., Sect. 4. 
 
 (5) Cross V. Sprigg, 6 Hare, 552. {y) 3 & 4 Will. 4, c. 98, s. 6. 
 
 {t) Sibihorp v. Moxoni, 3 Atk. 579. («) 56 Geo. 3, c. 68, s.'12. 
 
 («) 9 Jarm. Byth. (Sweet), 801, 802. (a) Polglasc v. Oliver, 2 Tyrw. 89. 
 
 V 2 
 
 211
 
 212 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Receipt by 
 shopman. 
 
 Effect of 
 tender. 
 
 Appropriation 
 of Payments. 
 
 tender (i).; nor is a conditional tender a good one (c). Of course 
 where there exist mutual stipulations on the matter, goods may 
 be a good tender ; or any other alteration may be made from the 
 general rule which obtains in the absence of express stipulation. 
 
 The Law will infer an authority from a tradesman to his 
 shopman to receive and give receipts for debts due from a 
 customer over the counter ; but not elsewhere {d). Such a 
 tender, therefore, to the latter will be a good tender to the 
 former, at least in the case of simple contract debts. So a 
 tender to one of several creditors, executors or trustees is 
 good, or to the attorney of the Creditor instructed to demand 
 and demanding it. 
 
 The effect of a tender is not to bar the debt ; the Debtor 
 must still pay when required, but if made before the writ of 
 summons is issued, it is available as a defence to it to this 
 extent : it bars any claim for subsequent damages for non-pay- 
 ment or for interest; and it entitles the defendant to his costs as 
 against plaintiff ;e). The duty of the Creditor is to receive the ten- 
 der, and then give a proper acquittance. He is bound to fill up a 
 blank receipt tendered by the Debtor, and pay the stamp due for 
 it. Receipts for 405. and upwards, except by Bankers for deposits, 
 must be stamped with a Ic?. receipt stamp(/). Below that sum no 
 written receipt is necessary, though it is desirable "to encourage 
 all prudent persons to take receipts, for if they do not, in case of 
 death, the representatives may be deprived of all evidence of the 
 payment" {g). 
 
 Although a receipt was taken, the party may prove payment by 
 oral testimony (A), or that no payment was in fact made {i). 
 
 Where the Debtor is indebted in several ways to his Creditor, 
 the question may arise, in reduction of which of the debts is the 
 payment to be applied {k). " According to the Law of England, 
 the Debtor may, in the first instance, appropriate the payment — in 
 other words, apply it — in satisfaction of whichever debt he 
 chooses : if he omits to do so, (and he may do so by either express 
 words or a conduct indicative of his intention,) the Creditor may 
 make the application ; but if neither makes any appropriation, 
 the Law appropriates it to the payment of the earlier " (/). 
 
 {b) Betterbee v. Davis, 3 Camp. 70. 
 
 (c) Hough V. May, 4 Ad. & Ell. 95-k 
 
 (d) Kaye v. Brett, 5 Exch. 269. 
 
 (e) Dent v. Dunn, 3 Camp. 296. 
 (/) 16 & 17 Vict. c. 59, Schedule. 
 {g) Per Rolfe, B., Richardson v. 
 
 Jackson, 8 M. & W. 300. 
 
 (/;) Tayl. on Ev. 374 ; but see Ma- 
 theson v. Ross, 2 H. Lds. Cas. 286. 
 
 (J) Tayl. Ev. 607. 
 
 (A-) Smith's Merc. Law, 520. 
 
 (0 Per Tindal, C. J., Mills v. F owkes, 
 5 Bingh. N. C. 455.
 
 ( 213 ) 
 
 Section 0. 
 
 Specialty and Simple Contract Debts due from or to a Bankrupt 
 
 or Insolvent. 
 
 1. Debtor. 
 
 Bankrupt. 
 
 Before Action. 
 During Action. 
 Future Debts. 
 Contingent Debts. 
 Pari passu Payment. 
 Insoh'cnt. 
 
 1 .f- 2 net. c. 110. 
 
 Insolvent Bankrupt. 
 Contingent Debts. 
 Future Debts. 
 
 1. Debtor, Insolvent — cont. 
 
 Protection Acts. 
 
 2. Creditor. 
 
 Bankrupt. 
 
 Before Action. 
 During Action. 
 
 Insolvent. 
 
 Protection Acts. 
 1 S/- 2 Vict. c. 110. 
 
 If the Debtor becomes bankrupt before action, his assignees Debtor. 
 
 may, with leave of the Bankruptcy Court first obtained, defend 
 
 at Law any action which he ntiight have defended (a). The 
 
 action does not abate bv the death or removal of the Assignees {b), 
 
 whether Official or Creditors' (c). The bankrupt should not be l^-^^^V^^^^^^ 
 
 made a party. 
 
 As regards any personal earnings of the bankrupt {d) between 
 the Bankruptcy and certificate,— which do not pass to the assig- 
 nees,— they would not be liable to the debts due at the time of the 
 Bankruptcy, but the bankrupt can, it would seem, contract debts 
 in respect of which such earnings might become liable. 
 
 Property vested in the bankrupt as trustee {e\ or as executor (/), 
 and (as we have seen) {g) his copyholds, do not pass to his Assig- 
 nees : but the Court has power to sell his copyholds for tlie benefit 
 of his Creditors. 
 
 If the Debtor becomes bankrupt during an action against liim during action. 
 for any demand prior to the Bankruptcy, the Creditor may elect 
 either to continue it, or to prove in the Bankruptcy ; if he proves, 
 he relinquishes his action, as against the bankrupt, though not as 
 an-ainst any co-defendant with him {K). 
 ''a Creditor holding a security for the payment of money at a Future debts. 
 future time, not arrived at the time of the act of Bankruptcy, 
 may prove for it, as if presently due, rebating interest at 51 per 
 
 {a) 12 & 13 Vict. c. 106, s. 153. 
 (6) Ibid. s. 157. 
 
 (c) Man V. Ricketts, 1 Phill. (J 17. 
 
 (d) Wise's Bankrupt Law, 155. 
 
 {e) Hill on Trustees, 294. 
 
 (/) Wms. Exors. 5G3. 
 
 {g) Ante, p. 84. 
 
 (//) 12 & 13 Vict. c. 106, s.182.
 
 214 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS 
 
 Contingent 
 
 Pari passu 
 payment. 
 
 Insolvent. 
 
 1 & 2 Vict. 
 110. 
 
 Insolvent 
 Bankrupt. 
 
 cent. — such interest to be computed from the declaration of a 
 dividend to the time when the money is made payable (i). 
 
 If the debt is contingent, the Creditor may apply to the Court 
 of Bankruptcy to value it, and may prove for the valued amount( A) ; 
 or he may, if the liability be not otherwise proveable, {i. e. if 
 it be not capable of valuation,) claim for such sum as the Court 
 shall think fit(Z); and if the contingency happen during the 
 Bankruptcy, he may prove for the demand thus ascertained by 
 the happening of the contingency, not disturbing former divi- 
 dends. But he must have had no notice, when the debt was 
 incurred, of an act of Bankruptcy ; and if the claim be not con- 
 verted into a proof within six months from the filing of the 
 petition, the Assignees may, with leave of the Court, expunge it{m). 
 
 Specialty and Simple Contract Creditors are paid pari passu, 
 inter se, whatever the nature of the assets {n). 
 
 The Certificate discharges the bankrupt's estate, even after- 
 acquired property, from debts due at the time of the adjudication. 
 
 With regard to suits in Ecjuity by a Creditor against the 
 assignees, from what has been said before on the subject of the 
 concurrent jurisdiction of Chancery and Bankruptcy, and the dis- 
 inclination of the Chancery Judges to support any Creditor's 
 claim, other than the Assignees, after Bankruptcy, it would 
 appear unnecessary to pursue this point further. 
 
 If the Debtor becomes Insolvent before action, his Specialty 
 and Simple Contract Creditors may still sue him until the Vesting 
 Order; but they cannot, at Law or in Equity, sue the Insolvent or 
 his Assignees after such order for scheduled debts due from him 
 at the filing of his petition (o), but must go in and prove for 
 them under the Insolvency. There is no provision in the Act 
 for the defence of suits or actions by the Assignees. 
 
 And no action or suit shall be brought against the Provisional 
 Assignee except to recover property of the prisoner detained 
 after an order made by the Court for delivery thereof, and a de- 
 mand made thereupon {p). 
 
 If the Insolvent is liable to the Bankrupt Laws, his subsequent 
 Bankruptcy shall override and make void any Vesting Order 
 made in the Insolvency, which however shall revive, as if it had 
 never been made void, upon his obtaining his Certificate («y), and 
 
 (/) Ibid. s. 172. 
 {k) Ibid. s. 177. 
 (I) Ibid. s. 178. 
 (j/i) Ibid. 
 
 («) Ibid. s. 187. 
 (o) Berry v. Irwin, 8 C. B. 532. 
 (p) 1 & 2 Vict. c. 110, s. 37. 
 [q) Ibid. s. 40.
 
 FROM OR TO A BANKRUPT OR INSOLVENT. 215 
 
 the filing of a Petition by him in the Insolvency is an act 
 of Bankruptcy, if followed by an adjudication of Bankruptcy, 
 before the time advertised for him to be dealt with according to 
 1 & 2 Vict, or within two months of the Vesting Order (r). 
 
 He may plead his discharge in bar of any suit for a scheduled 
 debt (s). 
 
 As against after-acquired property, Creditors at the date of the After-acquired 
 Insolvency becoming scheduled Creditors will have become Judg- l^'^P^'^y* 
 ment Creditors by the warrant of attorney, to be executed by the 
 Debtor on his discharge (t), and succeeded to the rights and 
 remedies of such. 
 
 If any such after-acquired property consist of stock or other 
 property which cannot be taken in legal execution, and he refuse 
 to assign or transfer it, he may, on the application of the assignees, 
 be committed to custody (m). And if any other person shall after 
 his dischai'ge become possessed of any stock, legacy, money due or 
 growing due, bills, notes, Bank notes, or securities for money, in 
 trust for him, the Court may order such person to deliver over 
 such property or pay such debts to the Provisional or other 
 Assignees, for the benefit of the Creditors entitled under the 
 Judgment entered up as aforesaid (x). 
 
 The schedule does not, as in Protection cases (?/), require to be 
 verified by affidavit, though the Examiner of the Court may ex- 
 amine into its truth (z). 
 
 The proceedings of the Provisional and Creditors' Assig- 
 nees shall be examined before any Assignee shall proceed to a 
 dividend ; and if, upon such examination, there shall appear 
 to be a balance in hand, a dividend shall be made, if before 
 the prisoner's adjudication of discharge, among those of his 
 Creditors who shall have proved; if after it, among them and the 
 scheduled Creditors, in proportion to the amount of their proved 
 and admitted debts (a). 
 
 There is no provision in the 1 & 2 Vict, analogous to that in Contingent 
 the Bankruptcy Acts, for proof of contingent debts, unless they '^^bts. 
 are included in the words " sums payable at any future time" (b), 
 so that if the contingency happen after the discharge, the Creditor 
 may still sue the Insolvent; though of course that will be a 
 barren remedy unless he have any after-acquired property. 
 
 (r) Ibid. s. 39. (y) Post, p. 216. 
 
 (s) Ibid. s. 91. C«) 1 & 2 Vict. c. 1 10, s. 74. 
 
 (0 Ibid. s. 87. (fl) Ibid. s. 62. 
 
 («) 1 & 2 Vict. c. 110, s. 88. {b) Ibid. s. 80, 
 
 (.r) Ibid. s. 89.
 
 S16 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Future debts. But as to debts future but certain, the discharge shall extend 
 to them ; tlie Insolvency Court having tlie power to value such 
 debts, regard being had to the original price given by the 
 Creditor for the debt, and the diminution in value caused by the 
 lapse of time from the grant to the Vesting Order (c). 
 Protection The Same is Law as to contingent and future debts, in the case 
 
 ^^^^' of Debtors within the Protection Acts. The deduction in value, 
 
 in future debts, is to be calculated from the grant of the price of 
 the debt to the filing of the petition {d). The assignees may "be 
 sued as if they had been assignees" in Bankruptcy (e) ; and there 
 is a similar provision respecting the non-abatement of actions or 
 suits by their removal or death. If a trader files a Declaration of 
 Insolvency, his Bankruptcy thereby (/) overrides the Insolvency. 
 
 A final order may bar suits against the Insolvent for debts due 
 before filing the petition {(/), or scheduled {h). 
 
 The Insolvent is required to verify by aflSdavit his petition, 
 and the schedule required by 5 & G Vict. c. 116 (i). 
 
 Stock and shares standing in the Insolvent's name in his own 
 right may be ordered by the Commissioner to be transferred into 
 the names of the Assignees (7). 
 
 Whenever there shall appear to the Commissioner a balance 
 in the hands of the Provisional Assignee wherewith a dividend 
 may be made, it shall be so made amongst the scheduled Cre- 
 ditors and such as may have proved, in proportion to the amount 
 of the debts so admitted and proved (7i). 
 
 As to suits in Equity against tlie Assignees of the Insolvent, 
 the same remarks apply, mutatis mutandis, as in the case of suits 
 against bankrupts. 
 
 The eflTect of the Protection Acts taken together (Z) is, that 
 an Insolvent within them(7;2) may, on giving and advertising the 
 proper notice to one fourth in number and value of his Creditors, 
 and presenting and filing his petition to the proper Court (w), 
 obtain from the Judge or Commissioner an Order for the pro- 
 tection of his person, which shall be in the first place an interim 
 one, until his appearance in Court and examination, and upon 
 such appearance and examination he may obtain a final Order 
 
 (c) Ibid. {j) Ibid. s. 15. 
 
 (rf) 7 & 8 Vict. c. 96, s. 25. {k) Ibid. s. 31. 
 
 (e) 5 & 6 Vict. c. 1 16, s. 7. {I) 5 BiG Vict. c. 116, ss. 1, 4 ; and 
 
 (/) 7 & 8 Vict. c. 96, s. 41. 7 & 8 Vict. c. m, ss. 3, 22, 26, 27. 
 
 ig) Ibid. s. 10. (;«) Who are, ante, p. 86. 
 
 (/i) Phillips V. Pickford, 9 C. B. 439. (n) What that is, see Table of Courts. 
 
 (?) 7 & 8 Vict. c. 96, s. 16.
 
 FROM OR TO A BANKRUPT OR INSOLVENT. 217 
 
 to protect liim from being taken or detained under any process 
 in res])ect of the debts claimed at the time of filing his petition 
 by the scheduled Creditors, and for which they had given credit 
 to him before filing his petition, and which were not then payable, 
 and as to the claims of all other })ersons not known to him, who 
 might be endorsees or holders of any negotiable security (o). ^ 
 
 If the Creditor become bankrupt before he brings his action, Creditor, 
 his right of action devolves on his Assignees, who, by leave of Bankrupt, 
 the Court of Bankruptcy, may sue in the same manner as lie 
 himself might (p). I'he Oflicial Assignee is appointed forthwith before action, 
 after the adjudication of Bankruptcy {(j) ; and, until the appoint- 
 ment of Trade Assignees, he is to be deemed the sole assignee (r) ; 
 alone can give proper receipts for debts paid to him, and bring 
 actions for their recovery (s). 
 
 After the appointment of the Trade Assignees, the Oflicial and 
 Trade Assignees must be co-plaintiffs (t). On the death or 
 removal of any assignee, including an Official one (u), before 
 recovering the debt, the suit or action does not abate ; but the 
 Court will allow, on " suggestion " of the death or removal, the 
 substitution of the new assignee's name {x). 
 
 If the Bankruptcy happen during the action, the right of during action. 
 action devolves upon the Assignees, who shall continue it with 
 leave of the Court, as the bankrupt might have done (y). 
 
 The Debtor cannot plead to an action by the Assignees the 
 Bankruptcy of the Creditor, in bar of any action which the 
 Assignees may maintain, unless they decline to continue the action, 
 and to give security for costs ; but may so plead it within eight 
 days after such refusal ; and, till the Assignees have elected to 
 continue or discontinue it, proceedings may be stayed (z). 
 
 The bankrupt is not absolutely disqualified from suing at When Bank- 
 Law between the Bankruptcy and his Certificate. Though un- """1" '"'*^' ^"^* 
 certificated, he may acquire property against every one except 
 the Assignees, and sue a third person for work done, or for money 
 lent (a), since the petition of adjudication. 
 
 With regard to suits in Equity by the bankrupt himself, the Suits in 
 same rule applies as in the case of suits by his Creditors, viz., that E<l"'*y- 
 
 (o) 7 & 8 Vict. c. 96, Sched. (A. («) Man v. Ricketts, 1 Phill. 617; 
 
 No. 3). Lloyd V. Waring, 1 Coll. C. C. 536. 
 
 (/;) 12 & 13 Vict. c. 106, s. 153. (x) 12 & 13 Vict. c. 106, s. 157. 
 
 (q) Ibid. s. 102. ((/) Ibid. s. 153. 
 
 (r) Ibid. s. 40. (?) 15 & 16 Vict. c. 76, s. 142. 
 
 (s) Archb. Pr. 1180. (a) Herbert v. Sayer, 5 Q. B. 695; 
 
 (t) Broom on Parties, 91. Evans v. Brown, 1 Esp. 170.
 
 218 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS 
 
 Insolvent. 
 
 1 & 2 Vict, 
 c. 110. 
 
 Protection 
 Acts, 
 
 after the Bankruptcy, it is not competent for him alone or them 
 to sue there. He cannot even maintain a bill for an account 
 against his assignees, though charging them with collusion (b). 
 
 But he may sue it would seem, (Equity following Law in this 
 respect,) though uncertificated, in the same class of cases in which 
 he is permitted to sue at Law (c). 
 
 With regard to imprisoned Debtors within 1 & 2 Vict. c. 110, 
 the Provisional Assignee has power, with leave of the Court, to 
 sue in his own name the Debtors of the Insolvents (d), and there 
 is a provision in the Act similar to that in 7 & 8 Vict. c. 96, re- 
 specting the power of the Creditors' assignees to bring actions, 
 but not to compound or sue in Equity without consent of the 
 Creditors (e) ; and respecting the non-abatement of suits by re- 
 moval or death (/). The 142nd section of the Common Law 
 Procedure Act, 1852, also applies to imprisoned Debtors. 
 
 For a debt accrued to the Insolvent between the Vesting 
 Order and the discharge, e. g., in respect of his personal labour 
 the assignee cannot sue {g). The Insolvent may, unless the as- 
 signee interfere (Ji). 
 
 After the appointment of Creditors' Assignees, the action 
 should be brought by them alone, without the Provisional As- 
 signee being joined with them (z). 
 
 As to Creditors who are Insolvents within the Protection Acts, 
 the Creditors' Assignees are the proper parties to bring the 
 action, which they may do without leave of the Court or Credi- 
 tors : to a suit in Equity however by them (as we have seen), or 
 to a composition with the Insolvents' Debtors, the consent of the 
 major part in value of the Creditors is necessary (k) ; though 
 their remedies are, in vita dehitoris, chiefly, if not wholly, legal. 
 
 The Act (7 & 8 Vict.) does not expressly give the Official 
 Assignee (now the Provisional Assignee in Town Cases, and 
 the County Court Registrar in Country Cases) power to bring or 
 continue any action before the appointment of the Creditors' 
 Assignees, though it makes him, till that time, the sole as- 
 signee of the property " to all intents and purposes" (/). After 
 
 (6) Heath v. Chadwick, 2 Phill. 649, 
 overruling Barton v. Jayne, 7 Sim. 24. 
 
 (c) Calvert on Parties, 264; 9 Sim. 
 212. 
 
 (d) 1 & 2 Vict. c. 110, s. 42. 
 \e) Ibid. s. 51. 
 
 (/) Ibid. s. 53. 
 
 {g) Williams v. Chambers, 10 Q. B. 
 337. 
 
 (/«) .Jackson t;. Burnham, 22 L. J., 
 Exch. 13. 
 
 {i} Archb. Pr. 1188. 
 
 (A:) 7 & 8 Vict. c. 96, s. 13. 
 
 (0 Ibid. s. 10.
 
 FROM OR TO A BANKRUPT OR INSOLVENT. 
 
 219 
 
 the Creditors' Assignees are appointed, however, it woukl seem 
 that his power to sue with them is not gone, but that he ought to 
 be joined with them [m). 
 
 There is a provision, similar to that which occurs in the Bank- 
 rupt Act, respecting the non-abatement of actions or suits l)y 
 Assignees on their death or removal {n), and the Common Law 
 Procedure Act, 1852, contains a provision similar to that in 
 the case of bankrupts, respecting the non-pleading of Insol- 
 vency in bar to an action begun before it (o). 
 
 The same remarks apply, mutatis mutandis, to suits in Equity Suits in 
 by Insolvents themselves, as to suits by bankrupts {p). 
 
 Equity. 
 
 Section 7. 
 
 Courts. 
 
 Where should Creditor sue. 
 Determining circumstances. 
 Attorney's Privilege. 
 Election at Law and in Equity. 
 Plaintiff's Choice. 
 Changing " Venue." 
 
 Right of Plaintiff. 
 
 Right of Defendant. 
 " Superior " and " Inferior" Courts. 
 
 Of Law. 
 
 Of Law and Equity. 
 
 Of Equity. 
 
 Place of Cause of Action, and Residence, 
 
 Borough and City Civil Courts. 
 
 What Courts the County Courts have 
 abolished. 
 
 Hundred and Manor Courts. 
 
 Scheme of Table in Appendix. 
 
 London Courts. 
 
 Cinque Port Courts, 
 
 It will be of little practical use to the Creditor to know when Where should 
 he has a cause of action, or against whom he may pursue it, or ^'^ditor sue. 
 how, unless he can also tell where he should sue for it. 
 
 This question it will at once be seen involves the whole 
 subject of the jurisdiction of Courts. This important question, 
 " Where am I to sue ?" will be found to resolve itself at once into 
 two others, viz : — 
 
 (i.) Where must I sue. 
 
 (ii.) Where may I sue. 
 The first involving the consideration of the Exclusive, the second 
 that of the Concurrent, Jurisdiction of Courts. 
 
 {m) Archb. Pr. 1188. 
 (m) 7 & 8 Vict c. 96, 
 
 16. 
 
 (o) Section 142. 
 
 {p) Heath i'. Chadwick, 2 Phill. 652,
 
 220 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Determining 
 circumstances. 
 
 Attorney's 
 privilege. 
 
 Election. 
 
 Now the points which the Creditor will have to consider in 
 answering the above questions will be, I think, generally the 
 following : — 
 
 1. The Nature of his Debt. 
 
 2. Its Amount. 
 
 3. The Place where the cause of Action arose. 
 
 4. The Place of his own, or the Debtor's, i-esidence. 
 
 He may, in fact, set out with assuming that his remedy lies in 
 one of the Superior Courts of Common Law at Westminster, 
 (his remedy being generally, as we have seen, during his Debtor's 
 life in the Common Law Courts only,) viz , the Courts of Queen's 
 Bench, Common Pleas, or Exchequer, (and in them indifferently,) 
 unless one or other of the above-named considerations oblige or 
 enable him to sue elsewhere. 
 
 An attorney, however {q), or other officer of the Court (r) is 
 entitled to sue in the Court to which he belongs, and of laying 
 the " venue" in Middlesex, but he has no such privilege, if the 
 case be within the New County Court Acts (.s). 
 
 He has also (except the case be within the New County Court 
 Acts) {t), the privilege of insisting on being sued in the Court 
 to which he belongs (u). If he is an attorney of more than one 
 Court he may be sued in either {x). And where both parties 
 are attornies, that Court which first possesses the cause shall 
 retain it(y;. 
 
 As far indeed as regards himself, the plaintiff may, if he has a 
 choice of Courts, of course commence his suit in whichever he 
 pleases, but the privilege of the defendant to be sued in any 
 particular Court the Creditor cannot prevent. Exclusive juris- 
 diction, therefore, is generally the privilege of the defendant. 
 Either party may, however, generally remove it (if commenced in 
 an Inferior) to a Superior Court. 
 
 Where the Creditor is proceeding with an action at Law and 
 a suit in Equity for the same debt, the Debtor may compel him 
 to elect whether he will proceed at Law or in Equity. A mort- 
 gagee, however, as will appear in a subsequent part of this 
 treatise, is an exception to the above rule, for he may simul- 
 taneously pursue his Legal and Equitable remedies (z). 
 
 A vendor, however, suing simultaneously at Law on a bond 
 
 {q) Archb. Pr. 63. 
 (r) Archb. Pleading, 279 (2nd ed.) 
 (*) 12 & 13 Vict c. 101, s, 18. 
 (0 Ibid. 
 
 («) Archb. Pr. 64. 
 
 {x) Ibid. 
 
 {y) Ibid. 
 
 («) Post, Division II.
 
 COURTS. ""^ 
 
 and in Equity for his lien as an equitable mortgagee, for his 
 unpaid purchase money, is not within the exception (a). 
 
 The principle of election has in some instances been extended 
 to cases where the Creditor is suing here in Equity and also in 
 a foreign Court (b) ; in others, to compel the plaintiff to elect to 
 a certain extent (specially) (c). 
 
 The defendant must have answered before he can compel the 
 plaintiff' to elect. If the latter elect to proceed in Equity, an 
 injunction will issue, as of course, against his proceeding at Law; 
 if to proceed at Law, the defendant may procure an order to 
 have his bill dismissed (rf). 
 
 Speaking then for the present of an action in a Superior Plaintiffs' 
 Westminster Court, the Creditor, having chosen the Court in Coul'.Jy^and 
 which he wishes to sue, first sues a writ of summons out of Court. 
 it (e), and having also chosen (as he may in the case of debts, 
 which are " transitory " actions) (/), the County in which he 
 would have it tried, names such County and the Court in the 
 margin of his Declaration {g) ; and the pleadings which are 
 made up out of Court (A), become thenceforth the pleadings of 
 the Court so named, and the trial (if facts are developed) a trial 
 in that County. 
 
 As a general rule, and to save expense, he will choose the Changing 
 
 '^ i» • " Venue.' 
 
 County in which the parties reside, or the cause ot action arose, 
 otherwise the witnesses would have to be brought away from 
 their homes. The defendant, however, has a right to have the 
 " Venue " {i. e. the County in which the action is laid) changed 
 generally to the County where the cause of action arose, (if it 
 were laid elsewhere,) unless the plaintiff" can show it would be 
 more conveniently tried where the venue was laid (/). The 
 plaintiff* again has, on the other hand, a right to change it, 
 amending his declaration, upon stating to the Court or Judge 
 any reasonable ground {k). But neither party can, except by 
 mutual consent, change the venue {I) without a special Order of 
 Court or a Judge. 
 
 The terms " Superior" and " Inferior" as applied to Courts, "Superior" 
 
 , . , , 1 1 • T .• ,.• 1 and " Inferior" 
 
 are now recognized in legal parlance, being a distinctive phrase Courts. 
 
 (a) Barker v. Smart, 3 Beav. 6k (/) 3 Blackst. (Stejih.) 434. 
 
 (6) Pietcrsy. Tl>oiiij)son, Coop. (temp. {!<) T. T. 1853, r. 4. 
 
 Eldon), 394. (//) Steph. Pleading, 27. 
 
 (c) 3 Atk. 129. (i) Archb. Pr. 1271. 
 
 (<i) Dan. Ch. (HeadIam},G.58. (/•) Ibid. 1273. 
 
 ((?) C. L. P. Act, 1852, s. 1. (/) H. T. 1353, r. 18.
 
 222 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 At West- 
 minster. 
 
 Courts of Law, 
 of Equity. 
 Of Law and 
 Equity. 
 
 New County 
 Courts. 
 
 Borough and 
 City Civil 
 Courts. 
 
 employed in several modern Acts (m). It becomes, therefore, 
 necessary to describe them, and the Tabular view of Courts in 
 the Appendix has been constructed on the basis of a recognition 
 of that distinction. The Superior Courts again are further known 
 in legal phrase as the " Superior Courts at Westminster " (n), 
 or elsewhere ; and are either Original or Appellate. There is 
 also a further division of Courts according to their principles ; 
 and they are, not unfrequently, and exhaustively, classified as 
 Courts of Law, Courts of Equity, and Courts of Law and 
 Equity (o). I have adopted in the Tabular view that division, 
 though, if closely considered, such a classification is not exactly 
 a correct one, for the Courts of Equity (so called) do not ignore 
 the principles of Law, and are, therefore. Courts of both. Legal 
 titles and legal estates and remedies will often determine a case 
 even in Equity, at least to the extent of remitting or leaving the 
 parties to their Common Law remedies ; but as regards Courts 
 of Law, though it is undoubtedly true that, since the Legislature 
 has conferred some equitable powers upon them {p), they also 
 are, strictly speaking. Courts of Law and Equity ; yet the 
 amount of Equitable Jurisdiction devolving on them is so 
 partial and scanty that it is still correct to designate them as 
 " Courts of Law " only. 
 
 The Place of the cause of action and residence of the parties 
 seems most material in the case of the New County Courts. 
 But the Amount of the debt is the chief arbitrary standard which 
 the Legislature has taken for drawing the line between the 
 Jurisdiction of the Superior and Liferior Courts {cf). 
 
 In various cities and boroughs there existed at the passing of 
 the Municipal Corporations Act (r), Borough and City Courts for 
 the trial of civil actions, established and regulated by Charter, or 
 local Acts, or custom. That Act has not abolished, on the 
 contrary, it has extended them, by giving (to such of them as 
 not being regulated by a local Act had it not before) jurisdiction 
 to try, inter alia, actions of assumpsit, covenant and debt, up to 
 20/., provided that a barrister of five years' standing were the 
 Judge or assessor (s). 
 
 Such of the Borough Courts of which a barrister or special 
 pleader, or an attorney of a Westminster Court of ten years' 
 standing, is Judge, may also, if the debt do not exceed 20/., and 
 
 (m) E.g., 1 & 2 Vict. c. WQ, passim. 
 (n) 3 Blackst. (Steph.)376. 
 (o) 12 & 13 Vict c. 106, s. 6. 
 (p) E.g.,C. L. P. Act, 1854. 
 
 {q) See Table of Courts, Appendix, 
 (r) r> & 6 Will. 4, c. 76. 
 {s) Ibid. s. 118.
 
 COURTS. 
 
 223 
 
 proceedings for its recovery be brought in such Court, examine, 
 even before Judgment, the Creditor and Debtor, and commit the 
 defendant, if he fail to attend or do not answer satisfactorily, or 
 if he appear guilty of fraud {t) ; these being the same powers 
 which the Court has (under the previous provisions of the same 
 Act,) on application of a Creditor by Judgment of the same 
 Court (m). 
 
 Neither have the (New) County Courts Acts abolished these What County 
 Borough Courts. The Courts which they, or the Orders in ^boHshed/^ 
 Council in pursuance of them, have abolished, were Courts 
 established in Boroughs and other places under modern Acts of 
 Parliament (.r), i. e., Courts of Requests administering Equity, 
 and in one or two instances. Hundred Courts) (y). 
 
 Sometimes it may be even advantageous to resort to the 
 Borough, in preference to the County, Courts: e.g., a Judgment 
 of the former is leviable, as we shall see {z), in some instances 
 on lands within the Jurisdiction, but not a Judgment of the 
 latter. 
 
 However, on the petition of any borough to the Queen, the Borough 
 Jurisdiction of the Local Court may be excluded and merged in ^°rffed"in^ ^^ 
 the (New) County Court (a), and the Queen in Council has power them, 
 to apply to these Borough Courts the provisions of the New 
 Common Law Procedure Acts (J), and has, in several instances, 
 so applied them. 
 
 These Borough Courts are very numerous ; some of them are 
 still in force, and are, or have till recently been, much resorted 
 to Some are nearly or altogether disused. Some, again, have 
 an insignificant, some a considerable, territorial Jurisdiction. 
 Some have a Jurisdiction limited in amount, some an unlimited 
 one. 
 
 There are also a great number of Hundred and Manor Courts Hundred and 
 throughout the Country, having Jurisdiction in debt, though ^^^"o*" Courts, 
 the Lords of such Courts may surrender, and in some instances 
 have surrendered them, to the Crown. Of these also I have given 
 a list. 
 
 It has seemed to me impossible to present the reader with 
 anything like a perfect idea of English Creditors' rights and 
 
 (0 8 & 9 Vict. c. 127, s. 4. (z) See Table, Appendix. 
 
 (m) Ibid. s. 1, and ante, p. 53. («) 15 & 16 Vict. c. 54, s. 7. 
 
 (.r) See Sched. to 9 & 10 Vict. c. 95. (b) 15 & 16 Vict. c. 76, s. 228; 17& 
 
 (»/) E. g., Hemlingford, Warwick- 18 Vict. c. 125, s. 105 ; 23 & 24 Vict, 
 
 shire and Offlovv, Staffordshire, 15 & c. 126, s. 44. 
 16 Vict.c. oi, s. 11. 
 
 p8
 
 224 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Scheme of 
 Tabular view. 
 
 remedies, and of the need of a consolidation of Courts, without 
 descending to the somewhat petty details of the Jurisdiction of 
 these Courts, which may still govern so many cases. And I have 
 found a difficulty in determining how I should best open up this 
 part of the subject to him. The conclusion I have arrived at 
 has been, to include in the appended Tabular list all those which 
 may be fairly said to be still unabolished, and therefore still 
 legally in force, because capable of being resorted to any day, 
 though some may be disused. The Appendix to the Fourth 
 Report of the Common Law Commissioners in 1832 gives me a 
 fair groundwork to begin upon. They very fully went into the 
 subject, and in their columns gave the number of actions com- 
 menced in each Court between February, 1830, and February, 
 1831. It is clear that, from the fact of no suit having been so 
 commenced in any Court in so small a space of time as a single 
 year, we cannot infer that such a Court was then disused; whilst, 
 on the other hand, the circumstance, that suits were plentiful within 
 that period, is no criterion that a Court is equally resorted to now. 
 Where, however, a Court was then pronounced obsolete, I have 
 omitted it as obsolete, and therefore, perhaps, not worthy of 
 notice now. In compiling the subjoined Table I must tender my 
 thanks to many of the Country attornies who have obligingly 
 given me much useful information on the subject. 
 
 The residence of the parties to an action within the territorial 
 Jurisdiction of these Hundred and Manor Courts would seem 
 immaterial, (so far as regards giving them cognizance of a cause,) 
 provided the cause of action arose within such Jurisdiction : 
 though, of course, the particular Charters or Acts giving Juris- 
 diction may have made it material. 
 London Courts. Of the London Courts, the Lord Mayor's Court (c), remodelled 
 by the 20 & 21 Vict. c. clvii, will, as far as regards its Common 
 Law side, be found among the Borough and City Courts : the 
 Sheriff's Court, also altered by the said Act, and by 15 & 16 
 Vict. c. Ixxvii, by itself; whilst the Hustings Court, Avhich was, 
 in debt, appellate only (c), seems no longer to be a Court of Ap- 
 peal from the Sheriff's Court (cZ). 
 
 As has been observed, the Creditor's remedy being generally 
 at Law during the life of the Debtor, an inquiry into the Juris- 
 diction of Courts would have been, perhaps, sufficiently answered 
 by exhi))iting a Table of the Courts of Law only. It has, how- 
 
 Place of Cause 
 of Action. 
 
 (c) Pulling'b Laws of London, p. 171. (d) See post, p. i90, n. (a).
 
 COURTS. 225 
 
 ever, so long struck the author that one Tabular view of all the Appellate 
 Civil Courts in England and Wales would be a desideratum in 
 any Law treatise, with a view to form any just idea of the im- 
 portance of that great subject for Law reform, the Consolidation 
 of Courts, that he has extended the Table, so as to comprise all 
 the' Courts of Law and Equity as well. 
 
 The Cinque Ports Courts being now no longer distinguish- Cinque Ports 
 able from other Courts by the Queen's writs not running into 
 them (t), I have included them in their alphabetical order 
 among the Borough Courts, all of tlxem, except Winchelsea, 
 happening to be Boroughs mentioned in the Schedules to the 
 Municipal Corporations Act. The Court of the Lord Warden 
 of the Cinque Ports as a Civil Court, whether in Law or Equity, 
 whether original or appellate, is abolished (u). Therefore I pre- Chancery 
 sume the Court of Chancery of the Cinque Ports is gone too ; ^°"" °^„ . 
 
 •' i to J Lmque Ports. 
 
 the Chancellor being generally, if not necessarily, the same 
 person as the Lord Warden and Constable (z). It is also enacted, 
 that the " Jurisdiction of the Superior Courts at Westminster 
 shall extend to the Cinque Ports" (y), but it is conceived the 
 effect of this is not to abolish hnpliedly the Mayor and Jurats 
 Courts, — which are certainly nowhere abolished expressli/, — but 
 at most to give the Superior Courts a concurrent Jurisdiction with 
 them. 
 
 (t) 18 & 19 Vict. c. 48. (x) Lyon's History of Dover. 
 
 (?<) Ibid. s. 1. (y) 18 & 19 Vict, c, 48, s. 2.
 
 Joint and 
 several Cre- 
 
 ( 226 ) 
 
 CHAPTER III. 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS TO AND FROM 
 SEVERAL. 
 
 Section 1. 
 Debtors and Creditors (not Partners). 
 
 Necessary Parties {Simple Contract 
 Debts). 
 2. Trustees of Debts. 
 
 Trustee Relief Act. 
 
 Joint and Several Creditors. 
 Joint and Several Debtors. 
 Test of Nature of Debt. 
 Necessary Parties {Specialty Debts). 
 Plaintiffs. 
 
 Joint and Joint and Several 
 Debt. 
 At Law. 
 In Equity. 
 Several Debt. 
 Defendants. 
 
 Joint and Joint and Several 
 Debt. 
 At Law. 
 In Equity. 
 Several Debt. 
 
 Trustee Acts. 
 
 Notice to and by Trustees, 
 
 Trustees' Receipts. 
 
 Trustee when liable for Co- Trustee. 
 
 Bankrupt and Insohent Trustees. 
 
 Notice to and by Executors. 
 
 Executors' Receipts. 
 
 Having considered the general characteristics of Specialty 
 and Simple Contract Debts in themselves, let us now examine 
 the rights of such Creditors, having regard to their own number 
 and connexion, and that of the Debtors. 
 1. The benefit of a specialty or simple contract debt may be, as 
 
 regards the Creditors (where there are more than one) either 
 (liters. joint, or joint and several, or several. The obligation or burden 
 
 Debtors. of it likewise may, as regards the Debtors, (if more than one,) be 
 
 joint, or joint and several, or several. And the nature of this 
 benefit and burden must be accurately determined before the 
 Creditor can know the parties against whom, or without whom, 
 he may or must proceed, or the full measure of his rights. 
 Test of Nature The test whether the benefit of a debt be joint or several, or 
 both, is to be found both in the nature of the legal interest 
 of the parties as appearing on the face of the instrument, and in 
 the words used (a), but much more in the former. Thus, whether 
 a sum of money borrowed from two is due to them jointly (i. e., 
 jointly only) will depend on the question, whether they advanced 
 it on a joint account (i. e., out of monies of which they were joint 
 owners at Law). So, with regard to the obligation of the debt, 
 
 (a) Broom on Parties, 86 ; Piatt on Covenants, 129. 
 
 of Debt at Law.
 
 DEBTORS AND CREDITORS (nOT PARTNERS). 227 
 
 the same test will apply. If A. and B. both bind themselves in 
 a bond, the question, whether they are liable jointly only, depends 
 on the question whether they received a joint benefit as a consi- 
 deration for the bond. 
 
 If the bond were a voluntary one, so that the above test could 
 not be resorted to, its scope would depend on its form and lan- 
 guage only, or the intention that the debt should be severed ib). 
 
 As regards themselves, it is more to the advantage of the 
 Creditors, in one sense, that the debt should be due to them 
 severally, for then each may sue separately and independently of 
 his co-Creditor (c) for the whole debt, and, at Law, keep it when 
 recovered. 
 
 But as regards the security afforded by the debt, it is for the 
 advantage of the Creditors that the liability of the Debtors 
 should be joint, and not several ; for a joint Judgment against 
 them will (except in the case of limitedly-liable partnerships) en- 
 able the Creditors to go against each separate estate in addition 
 to the joint estate (if any); since each Debtor has, by the form 
 of debt which he has contracted, subjected himself to the delin- 
 quencies of his companion (over whose actions he can exercise 
 no control), and to the responsibilities arising therefrom {d). 
 
 This benefit would not accrue to the Creditor, if the liability 
 of the Debtors were a several one only ; and no greater benefit 
 would accrue generally, if the liability were in form joint and 
 several. In some cases, however, Si joint and several coyenant on 
 the part of the covenantors is more advantageous to the cove- 
 nantees than a joint one, e.g., suppose one of two joint and several 
 covenantors dies before action and the survivor is insolvent (e), 
 the Creditor may go against the assets of the deceased, which, if 
 it had been joint only, and had therefore survived, he could not 
 have done. 
 
 Considering the cases then under these several aspects, they Necessary 
 will stand thus. As to parties plaintiffs, at Law, if the covenant, P^'^^'^s 
 
 1101 1 ••! , A iTii- Plaintiffs. 
 
 bond, ice. be to them jomtly, as to A. and B., their executors, Dgi^j joj^j 
 &c.," then, provided the cause of action be joint, i. e., the interest 
 be joint, both must join as co-plaintiffs (/), even though the 
 covenant, &c., be with each of them or with them " respectively," 
 
 (i) Post, p. 231. (e) Enys i;. Donnithorne, 2 Burr. 
 
 (c) Wnis. P. P. 242. \l'J6. 
 
 (d) Piatt on Covenants, IIG. (/) Foley v. Addenbrooke, 4 Q. B. 
 
 208. ■*., 
 
 Q 2
 
 228 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS, ETC. 
 
 or with them "jointly and severally," for if both may or can, both 
 must sue during their joint lives (f); and after the death of either, 
 as the cause of action will survive, the survivor must sue alone, 
 and may recover and keep all at Law. Thus, if a man by indenture 
 demises Blackacre, Whiteacre, and Greenacre to A., B. and C. 
 jointly, and then covenants with them, and to and with each and 
 every of them, these words " cum quolihet eoruni' are void ig). 
 
 Equity, however, if two persons advance money, and take the 
 security to themselves jointly, will generally consider it a joint 
 and several debt (A). 
 
 It is to guard against any possible application of the Equitable 
 doctrine, which strives to consider debts joint and several — that 
 the Common Law rule is so generally adopted in settlements — 
 by the insertion of an express stipulation, that the receipt of 
 the survivor of trustees advancing trust money, shall be a suffi- 
 cient discharge {i). 
 
 Several. If the debt be not joint, that is, if the legal interest and cause 
 
 of action of the obligees in the money secured be several, then, 
 although the words be prima facie joint, yet each obligee may 
 bring a separate action for his particular damage (j). 
 
 Thus, if a man demises to A., Blackacre, to B., Whiteacre, 
 and to C , Greenacre, and covenants with them and each of them 
 that he is lawful ownei*, the covenant is made several in respect 
 of the several interests which they have taken under the demise. 
 But if the debt, though in terms several, eg., a covenant with A. 
 and B., and each and every of them, were really joint in interest, 
 all the covenantees must sue during their joint lives, and the 
 words of severalty shall not prevail; the reason being, that other- 
 wise the Court would be in doubt for whom to give Judg- 
 ment ik). 
 
 Defendants. If the liability of the Debtors be joint, as where A. and B. 
 
 Joint Debt "covenant for themselves, their heirs, executors and adminis- 
 trators," they must be sued together during their joint lives {I). 
 The covenantee may recover in execution against one the whole 
 sum covenanted to be paid, and has nothing to do with the con- 
 tribution between the covenantors {m). 
 
 (/) Petrie v. Bury, 3 B. & C. 353. 
 
 (g) Slingsby's case, Co. Rep. Part V., 
 35. 
 
 (li) 1 Chanc. Rep. 57 ; 1 Eq. Ca. 
 Abr. 290. 
 
 (i) 5 Jann. Bytli. (Sweet), 499. 
 
 35. 
 
 ij) 1 Saund. Rep. (Wnis.) 155 a, n.l, 
 {k) Slingsby's case, Co. Rep. Part V. 
 
 (0 Piatt, 132. 
 (w) Ibid. 133.
 
 DEBTORS AND CREDITORS (nOT PARTNERS). 229 
 
 In Equity, it has never been determined that every joint ob- 
 hgation is joint and several : where it is so construed, there 
 has been a credit given previously to the different persons 
 who have entered into the obligation. It was not the bond 
 which first created the liability to pay. If it was purely matter 
 of arbitrary convention, growing out of no antecedent liability in 
 all or any of the Debtors to do what they have, by the security, 
 undertaken, it will be held joint (w). 
 
 A covenant even by two of three retiring partners for them- 
 selves, their heirs, executors and administrators, with the third, 
 that they or one of them will pay such third partner a sum of 
 money, does not constitute, in Equity, a joint and several debt (o); 
 a fortiori, when such a covenant is by two who are not part- 
 ners (p). 
 
 But where the obligation has been made a joint one instead of 
 a several one by mistake, Equity will reform and rectify it (g). 
 
 If the liability be joint and several, as if the covenant be by Joint and 
 " A. and B. for themselves and each of them, their and each of 
 their heirs, executors and administrators," the Creditor may 
 elect to sue them either jointly or severally, though their interest 
 in the subject matter be joint (r) ; though, if he sues them first 
 jointly, he cannot afterwards sue them separately (s); and so vice 
 versa. If three are bound jointly and severally, the obligee can- 
 not sue two jointly, for this is suing them neither jointly nor 
 severally (t). 
 
 If the liability of the Debtors be several, as if the covenant Several. 
 had been thus:— "and each of them the said A. and B. cove- 
 nants for himself and each of his heirs, executors, &c.," the 
 peculiar safety of this class of covenants to the covenantors is 
 obvious (m); for they cannot be jointly sued, and each is liable 
 only for his own default. 
 
 The same general rule as to the joinder of parties applies in Parties (Simple 
 the case of simple contract debts, other than Bills of Exchange, ^ebts)!' 
 It is not enough to show, however, that credit was given to 
 several jointly, without some proof of their having contracted 
 jointly, either expressly or impliedly, or that the work was done 
 
 (n) Per Sir Wm. Grant, Sumner v. Sm. 486. 
 
 Powell, 2 Mer. 37; Other i;. Iveson, (q) Other v. Iveson, 3 Drewry, 181. 
 
 3 Drewry, 177. ('■) 1 Saund. Wms. 154 a. 
 
 (o) Wilmer v. Currey, 2 De G.& Sm. (s) Collyer, 497. 
 
 347. " (0 2 Roll. Abr. 148. 
 
 (p) Crossley v. Dobson, 2 De G. & («) Piatt. 116. 
 
 q3
 
 230 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS, ETC. 
 
 Bills and 
 Notes. 
 
 Test of nature 
 of Debt in 
 Equity. 
 
 for their joint benefit. If upon the face of a simple contract in 
 writing it appears that the consideration moves from several per- 
 sons jointly, or that the promisees have a joint interest in the 
 performance of the contract, and sustain a joint damage by its 
 nonfulfilment, they must bring a joint action. If, on the other 
 hand, they take several interests, and separate duties and en- 
 gagements arise in favour of each, and the damages are several 
 and can be apportioned, separate actions must be brought (v). 
 The discharge of one of two joint, or two joint and several 
 Debtors, discharges the other. 
 
 Where several, not partners, accept a Bill or make a Note, it 
 depends on the words of the instrument whether they are bound 
 jointly, or jointly and severally {w). But Bills and Notes are 
 joint and not several, if accepted or made by a partner in a mer- 
 cantile firm, and the partner cannot be sued separately (x). 
 
 This part of our subject cannot be, I think, better concluded 
 than by the following lucid remarks of a late Master of the Rolls, 
 Sir R. Arden (?/). " I wish," he says, " to give my opinion very 
 explicitly. Great doubts have been entertained by Judges, both 
 at Law and in Equity, as to words creating a joint tenancy or a 
 tenancy in common, and it is clear the ancient Law was in favour 
 of a joint tenancy, and that Law still prevails ; unless there are 
 some words to sever the interest taken, it is at this moment a 
 joint tenancy, notwithstanding the leaning of the Courts lately in 
 favour of a tenancy in common. A legacy of a specific chattel, 
 a grant of an estate (to two), is a joint tenancy. It is true, 
 the Courts, seeing the inconvenience of that, have been desirous 
 wherever they could find an intention of severance to avail them- 
 selves of it, and their successive determinations have laid hold of 
 any words for that purpose. ' Equally to be divided,' 'equally, 
 among, between,' even in Law, I believe, certainly in Equity, 
 create a tenancy in common ; but without those words it is a 
 joint tenancy. But many distinctions have been raised in Equity; 
 as where persons are in trade, and have joint debts due to them^ 
 the Courts say it could not be intended to the prejudice of the 
 family of the deceased partner : therefore, not doubting that it 
 would be a joint tenancy at Law, in Equity they say it could 
 not be the agreement. So if two people join in lending money 
 upon mortgage, Equity says it could not be the intention that the 
 
 (i) Addison on Contracts, 950. 
 
 (w) Smith's Merc. Law, 229. 
 
 (x) Ex parte Buckley, In re Clarke, 
 
 14 M. & W.476. 
 {y) Morley v. Bird, 3 Ves. 630, 63L
 
 DEBTORS AND CREDITORS (nOT PARTNERS). 
 
 ^31 
 
 interest in it should survive; though they take a joint security, 
 each means to lend his own and take back his own. But that 
 was never extended to grants. A voluntary bond would survive, 
 if no intention of the party to make a severance appears. There- 
 fore legacies, gifts, grants, &c. are both at Law and in Equity 
 joint; except from the nature of the contract, or from the words, 
 some intention of severance appears." 
 
 There is a class of Remedies, or Relief, under certain circum- Tnistees of 
 stances, for the Legal Owners (as Trustees or the like), or the 
 cestids que trust of debts, on which it behoves me to say a few 
 words ; for a debt may, as we have seen, be settled on trust. 
 
 Trustees, or other persons, having annuities or stocks standing Trustee Relief 
 in their names in the books of the Governor and Company of the 
 Bank of England, or of the East India Company, or of the South 
 Sea Company ; or any Government or Parliamentary securities, 
 (but not shares in public Companies,) standing in their names, or 
 in the names of any deceased persons of whom they are the per- 
 sonal representatives, upon any trust whatsoever, or the major 
 part of them, may transfer the same into the name of, or deposit 
 them with, the Accountant-General,in trust to attend the orders of 
 the Court of Chancery, and the certificate by the proper officer 
 of such transfer or deposit shall sufficiently discharge such trus- 
 tees {z) ; and the Court, or a Judge, may order such transfer or 
 delivery to be made by a majority, without the concurrence of 
 the minority (a), and may order such securities deposited with any 
 banker or other depositary to be delivered to such majority (h). 
 
 Germane to the foregoing are the following remedies (under Trustee Acts. 
 the Acts commonly known as the Trustee Acts) of cestuis que 
 trust of debts. 
 
 Where a lunatic, or person of unsound mind, is entitled to any Lunatic 
 
 1 c i Trustee. 
 
 Stock, or chose m action, on any trust, or by w^ay ot mortgage, 
 
 the Chancellor may make an order vesting the right to transfer 
 such stock, or receive the dividends thereof, or to sue for and re- 
 cover such chose in action, if the lunatic be solely entitled, in any 
 person or persons : if jointly entitled with others, then either in 
 such others, or in them jointly with any other person (c). 
 
 So of stock standing in the name of any deceased person. Lunatic Exe- 
 whose personal representative is a lunatic or of unsound mind, 
 or when any chose in action shall be vested in any one lunatic or 
 
 (2) 10 & 11 Vict. C.96, s. 1 ; and see (6) Ibid, 
 
 as to Ireland, 11 & 12 Vict. c. 68. (c) 13 & 14 Vict. c. 60, s. 5. 
 
 (a) 12 & 13 Vict, c. 74. 
 
 Q 4<
 
 232 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS, ETC. 
 
 Trustee 
 abroad. 
 
 New Trustees. 
 
 of unsound mind, as the personal representative of any deceased 
 person (c). 
 
 So where any person or persons, solely or jointly entitled to 
 stock or a diose in action upon any trust, is or are out of the 
 territorial Jurisdiction of the Court, or cannot be found, or it is 
 uncertain whether he or they is or are alive or dead (d). 
 Neglecting, &c. So where a sole or joint trustee of stock, or a chose in action, 
 neglect or refuse to transfer, receive the dividends, or sue for 
 and recover the same according to the direction of the absolute 
 owner, for twenty-eight days after request (e). 
 
 So where stock is standing in the sole name of a deceased per- 
 son, and his personal representative is out of the Jurisdiction, or 
 cannot be found, or it is uncertain whether he is alive, or he 
 neglect or refuse to transfer or receive the dividends of it for 
 twenty-eight days after request from the absolute owner (/). 
 
 And a vesting order has the effect of transferring the legal 
 right ig). 
 
 So the Court may appoint a new trustee, or new trustees, in 
 substitution for, or addition to, any existing ones, whenever it 
 shall be expedient to do so, and it be found inexpedient, difficult, 
 or impracticable to do so without the assistance of the Court (^). 
 And as to deeds or wills after 28th August, 1860, whether the 
 trustee, original or substituted, be appointed by the Court or 
 not, and where, being nominated in a will, he die before the tes- 
 tator (i), the person, if any, having the power to appoint, or if 
 there be no such person, or he be not able or willing, the sur- 
 viving or continuing trustee or trustees or acting executor of the 
 last surviving and continuing trustee, or the last retiring trustee, 
 may appoint new trustees {j). 
 
 Notice to one of several trustees of a charge or incumbrance 
 created on the trust fund by the cestui que trust is sufficient 
 notice to all, — even where the incumbrancer is himself the 
 trustee(7e), — to perfect the title of the incumbrancer ; but it seems 
 that those who had not received notice would not be personally 
 answerable for any disposition made by them before any actual 
 notice to them (I). 
 
 Notice hy one trustee is, in a similar way, a sufficient notice 
 by all, where the act done is necessarily for the benefit of all, 
 
 Notice to 
 Trustees, 
 
 by Trustees. 
 
 (c) Ibid. s. 6. 
 (rf) Ibid. s. 22. 
 (e) Ibid. ss. 23, 24. 
 (/) Ibid.s. 2,5. 
 {g) Ibid. ss. 26, 27. 
 
 (;^) Ibid. s. 32. 
 
 (0 23 & 24 Vict. c. 145, s.34. 
 
 U) Ibid. ss. 27, 28. 
 
 {k) Hill on Trustees, 297. 
 
 (/) Ibid.
 
 DEBTORS AND CREDITORS (NOT PARTNERS). 2S3 
 
 but not where the act might tend to their prejudice (Z) ; unless 
 the trustee giving notice were the authorized agent of the rest. 
 Generally they must all join in a receipt for the debt due to them Receipts by. 
 in respect of their office. It is usually essential for the security 
 of persons dealing with them that they should all join in signing 
 receipts. But this seems an Equitable, not a Legal rule, and ap- 
 plies only to principal monies received by them (m) ; for, as at 
 Law any one of several joint tenants has the power to receive 
 and give discharges for the trust property, so one trustee may 
 receive, and give receipts for all for, the rents of land (n), or for a 
 legal chose in action, as, e. g., the dividends of stock or shares 
 standing in their own names. Trustees may apply to any Equity 
 Judge on petition, or summons, for his opinion or advice upon 
 the management of the trust property (o). 
 
 As to deeds or wills after 28th August, 1860, the receipts 
 in writing of any trustees or trustee for any money payable to 
 them in the exercise of the trust shall be sufficient discharge (jd). 
 
 With regard to the liability of a trustee for the breaches of Liability of 
 trust of his co-trustee. This, constituting an equitable debt, will r^^^'r tee 
 be remedied only in equity. The rules which govern the liability 
 of executors {q), for the acts of their co-executors, seem to apply 
 to trustees properly so called. But to speak more particularly. 
 The ordinary indemnity clause, which is now considered as inserted 
 in every trust deed (r), does not protect them against such a 
 breach of trust is), and they may expressly agree, — which agree- 
 ment will be binding, — to be answerable for each other's act (0. 
 
 Otherwise, if the concurrence of the non-defaulting trustee in 
 the act which constitutes a breach of trust by his co-trustee is 
 necessary or convenient, or arises in the regular course of busi- 
 ness in administering the property (w). Equity will exonerate him. 
 But if the misappropriation has been in consequence of any 
 neglect of his duty, though he has not taken any active part or 
 profited by it (u), (and, of course, where there has been any con- 
 currence on his part in the act) (t^), or the effect of the act has 
 been to place the property out of the joint control {pc), or if he 
 takes no pains to inquire into, and inform the cestui que trust of, 
 the state and nature of the property ( ?/), he will be answerable. 
 
 (n Rigbt V. Cuthell, 5 East, 492. («) Williams v. Nixon, 2 Beav. 472. 
 
 (jb) Lewin on Trusts, 299. (0 Leigh v. Barry, 3 Atk. 583. 
 
 {n) Goldsworth v. Knight, 11 M. & {n) Clough v. Bond, 3 M. & Cr. 497. 
 
 W. 337. (d) Hill on Trustees, 299. 
 
 (o) 22 & 23 Vict. c. 35, {w) Boardmant;. Mosman, 1 Bro.C.C. 
 
 (p) 23 & 24 Vict. c. 145, ss. 29, 34. 68. 
 
 (5) Post, Part IL (x) Hill on Trustees, 300. 
 
 (r) 22 & 23 Vict. c. 35, s.31. (y) Walker v. Sytnonds, 3 Sw. 58. 
 
 q5
 
 234 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS, ETC. 
 
 Trustee 
 
 Co-Trustee. 
 
 Bankrupt and 
 
 Insolvent 
 
 Trustee. 
 
 Notice to and 
 by Executors. 
 
 Receipts by. 
 
 It will be a good ground for his removal by the cestui que trust, 
 that he has suffered his co-trustee to commit a breach of trust (z). 
 
 It is the duty of the innocent trustee to proceed in Equity 
 against his defaulting colleague for an injunction to restrain the 
 contemplated breach, or, if it has taken place, to compel a restitu- 
 tion of the property (a) : and he has also the right, if proceeded 
 against, which he may be, and the decree enforced against him 
 separately by the cestui que trust {b), to file a bill for contribution 
 against the co-trustee (c). 
 
 But the general rule is — without any indemnity clause — that a 
 trustee shall not, in the absence of any fault on his part, be liable 
 for the acts or defalcations of his co-trustee (c/), though he has 
 joined in a receipt, for that is a mere act (when done by trustees) 
 of conformity (e). 
 
 The trustee of a debt becoming Bankrupt is " unfit" {f), but 
 not " incapable" (^), to act within the meaning of those words, 
 in a power to appoint new trustees ; and (as we have seen), if it 
 shall be inexpedient, difficult, or impracticable to appoint one in 
 his room without the assistance of the Court of Chancery, it may 
 appoint one (on petition) (A). The Chancellor may, on the peti- 
 tion of the cestuis que trust, order the Assignees to assign the 
 debt to such persons as he thinks fit (^). 
 
 The Insolvency of the trustee would be a sufficient foundation 
 for an application under the Trustee Acts to remove him {j). 
 
 Notice to one of several executors is not notice to his co-exe- 
 cutors (A), unless it can be presumed he communicated it to them(/), 
 just as notice to two strangers to the debt would not be notice to 
 a third. Notice hy one binds all or not, as with trustees (/«)• 
 
 Executors have a joint authority, and the authority of each 
 extends over the entirety of the testator's property, and they are 
 in Law considered one person, therefore the act of one is deemed 
 the act of all ; the release of a debt by one is the release of, and 
 binds, all (n), and one can give a discharge for money received, 
 and the joining of the other is unnecessary (o). The excuse of 
 the necessity, therefore, of joining in a receipt for the sake of 
 conformity, which would protect a trustee, will not protect an 
 executor. 
 
 (s) Lewin on Trusts, 711. 
 
 (a) Earl Powlet v. Herbert, 1 Ves. 
 jun. 297. 
 
 (6) Knatchbull v. Fearnhead, 3 M. & 
 Cr. 122. 
 
 (c) Ibid. 
 
 (rf) Lewin on Trusts, 302. 
 
 (e) Ibid. 711. 
 
 (/) Re Roche, 1 Conn. & L. 306. 
 
 (g) Re Watts, 9 Hare, 10(i. 
 
 {h) 13 & 14 Vict, c.60, s. 32. 
 
 (0 12 & 13 Vict. c. 106, s. 130. 
 
 0') Hill on Trustees, 552 ; 3 Madd. 
 100. 
 
 (A) Hawkins v. Day, Ambl. 162. 
 
 {i) Wms. on Exors. 1650. 
 
 (to) Ante, p. 232. 
 
 (w) Owen V. Owen, 1 Atk. 495. 
 
 (o) 3 Bac. Abr. Exors. 454 ; Hill on 
 Trustees, 304.
 
 ( 235 ) 
 
 Section 2. 
 Debtors and Creditors (Partners). 
 
 I. Debts due to and from Strangers to the 
 Partnership. 
 1. Delits due to Strangers. 
 
 (i.) Partnerships not Bankrupt 
 or wound up. 
 Contracts by and Suits 
 against Corporations 
 Proper. 
 Quasi- Corporations. 
 Un-incorporated Partner- 
 ships. 
 Liability of Partners. 
 (ii.) Partnerships Bankrupt or 
 wound up. 
 Corporations Proper, 
 Quasi- Corporations. 
 
 Within Joint Stock Acts, 
 
 18r,6, 1857. 
 Compulsory winding up. 
 fVhat Court shall wind 
 
 up. 
 Powers and Duties of 
 
 Court. 
 Fraudulent Convey- 
 
 ances. 
 Creditors and Contri- 
 
 butories. 
 Who are Contributories, 
 Liahilty of. 
 Winding-up Jets, 1848, 
 1849. 
 Appointmerit qf Official 
 
 Manager. 
 Proof, as in Bankruptcy. 
 Call, what. 
 
 Acts not Creditors' re- 
 medies. 
 Creditors' Representative. 
 Company may be Bank- 
 rupt. 
 Companies within 1 8g 9> Fict. 
 c. 111. 
 
 Companies within 8 <^ 9 Vict. 
 
 c. 98. 
 Companies within 9 Sf 10 
 Fict. c. 28. 
 Un-incorporated Partnerships. 
 Joint Bankruptcy. 
 Separate Bankruptcy. 
 
 2. Debts due from Strangers. 
 
 (i.) Partnerships not Bankrupt 
 or wound up. 
 Partnerships Un-incorpo- 
 rated. 
 Quasi- Corporations. 
 Corporations Proper. 
 (ii.) Partnerships Bankrupt or 
 wound up. 
 Partnerships Un-incorpo- 
 rated. 
 Quasi- Corporations. 
 Corporations Proper. 
 
 II. Debts due to and from the Partners 
 inter se. 
 Un-incorporated Partnerships. 
 Common Law. 
 General Rule. 
 No Contribution. 
 County Courts. 
 In Equity. 
 Quasi- Corporations. 
 Before winding up. 
 
 8 .f- 9 Vict. c. 16. 
 Preference Shares. 
 
 Joint 'stock Acts, 1856, 1857. 
 Banks. 
 
 7 Will. 4 ^ 1 Fict. c. 73. 
 Ow winding up. 
 
 Joint Stock Acts, 1856, 1857. 
 Winding-up Acts, 1848, 1849. 
 7 4-8 Fict.c. 111. 
 
 9 I 10 Fict. c. 28. 
 
 Generally speaking, and subject to very few exceptions, there Corporations 
 are no simple Contract Creditors of a total Corporation. Such ^''^P^'^- 
 a Corporation must bind itself by its contracts bt/ seal{k), which contracts by. 
 sealing is, as we have seen, tantamount to delivery. 
 
 The exceptions are, chiefly, two: — 
 
 1. Where the Simple Contract is such as, by its very con- 
 stitution, the Corporation is appointed to make(^); as, in the 
 case of a trading Company, to draw bills of exchange. 
 
 (k) See cases collected, 3 Blackst. 
 (Steph.) 126, n. (1). 
 
 (l) Church V. Imperial Gas Company, 
 6 Ad. & Eli. 861. 
 
 q6
 
 23G 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS, ETC. 
 
 How sued at 
 Law. 
 
 In Equity. 
 
 Companies 
 within Acts 
 1856, 1857. 
 Contracts by. 
 
 How sued. 
 
 Companies 
 within 8 & 9 
 Vict. c. 16. 
 
 Contracts by. 
 
 How sued. 
 
 2. When the Contract was required for necessity, management, 
 " or convenience amounting to necessity." 
 
 They must be sued at Law (m) and in Equity (w) by their 
 corporate name, and defend (if a Corporation aggregate) by an 
 attorney appointed by deed (o), and the writ of summons may be 
 served on the Mayor or other head officer, town clerk, treasurer, 
 clerk, or secretary of a Corporation aggregate ( p). 
 
 In Equity process may be sufficiently served upon the Com- 
 pany by being served on one of its members, or by being left at 
 its place of business (q). 
 
 The same is, generally, Law with respect to Companies qnasi- 
 incorporate. 
 
 L Companies within the Joint Stock Companies Acts, 1856, 
 1857. They must contract hy seal, in all cases where, if the 
 contract were between private persons, it must be by writing, 
 and if made according to English Law, by seal. But they may 
 contract in writing only, or by parol only, (by any one acting 
 under their express or implied authority,) in all cases where the 
 contract, if between private persons, would be good if made by 
 writing or parol (r). This is to adopt the same tests of liability 
 in the case of such Companies as in the case of private Debtors. 
 
 These Companies are also sued — though the Acts do not ex- 
 press this — by their registered corporate name, whether at Law 
 or in Equity; and so are Companies within 7 & 8 Vict. c. 110. 
 
 2. The same is Law with regard to Railway and other Com- 
 panies within 8 &: 9 Vict. c. 16. 
 
 If the contract must be in writing and under seal, (if between 
 private persons,) it must be made by the Committee or Directors 
 of the Company under the common seal. If it would be valid 
 between private persons, if in writing only, signed by the parties 
 charged therewith, it must be in writing by the Committee or 
 Directors, and signed by two Committeemen or Directors. If it 
 would be valid between private persons, if made by parol only, 
 the Committee or Directors may contract by parol {s). 
 
 These Companies must be sued at Law and in Equity, and 
 defend, (and service on them is the same,) as Corporations proper 
 (aggregate) (0 ; and so in cases of public undertakings within 
 8&9 Vict. c. 18(m). 
 
 (wi) Archb. Pr. 1083. 279; ih'iCi. arguendo. 
 
 («) 1 Dan. Ch. (Headl.) 130. (r) 19 & 20 Vict. c. 47, s. 41. 
 
 (o) Archb. Pr. 1083. \s) 8 & 9 Vict. c. 16, s. 97. 
 
 (p) C. L. P. Act, 1852, s. 16. (<) Ibid. s. 135, 
 
 (5) Maclaren «;. Stainton, 16 Beav. {u) 8 & 9 Vict. c. 18, s. 134.
 
 DEBTORS AND CREDITORS (PARTNERS). 237 
 
 3. As to Banking Companies. The contracts of such of them Banking 
 as must register under the Joint Stock Companies Acts, 1856, ^''' 
 1857, must, of course, be made like tlie contracts of those Joint 
 Stock Companies ; if not so registered, they are not incorporate 
 at all, and their contracts are made like those of ordinary part- 
 nerships unincorporate. 
 
 Such Banks as are still within 7 Geo. 4s c. 46, are sued at How sued. 
 Law and in Equity in the name of the public officer of the 
 Bank, who shall be a member of the Bank, and resident in 
 England {v). 
 
 The same of contracts by Companies within 7 Will. 4 & 1 Vict. Patenteed 
 c. 73, unless any particular mode of contracting be pointed out *'"^P'''"'^^- 
 in the letters patent. The Act is silent about it. 
 
 These Companies may be directed by their letters patent to be iiow sued, 
 sued at Law and in Equity by the name of one of their two ap- 
 pointed officers {x). 
 
 Turnpike trustees are sued in the name of their clerk (?/). Turnpike 
 
 ... . Trustees. 
 
 Friendly societies in that of their trustee or trustees (z). „ . , ' 
 
 \ , , _ ^ ^ ' I'ricndJy 
 
 The chief question in contracts by ordinary unincorporate Societies. 
 partnerships affects the power of the partners to bind the part- Private 
 nership, rather than the nature or mode of contract. We have contracts. 
 already referred to their extent and power to bind each other 
 by bills and notes. Each partner may enter, without expi-ess 
 authority, into any contracts on behalf of the firm in the ordinary 
 trade and business thereof, as by buying, selling, or pledging 
 goods, or by paying, receiving, or borrowing money. When a 
 partnership is formed for a particular purpose, it is understood 
 to be in itself a grant of power to the acting members of the 
 Company to transact its business in the usual way. These acts, 
 however, to bind the firm, must ordinarily be done in its name, 
 otherwise they will bind the individual partner only who executes 
 them, as his own private acts. 
 
 The above rule applies equally, whether all the partners be 
 known (to the party contracting with the contracting partner), or 
 some be secret or dormant partners (a). 
 
 The doctrine of the liability of one man for the acts of another 
 has been carried to the utmost limit, (through the doctrine of 
 implied agency,) (J)) in the case of partnerships. 
 
 I^v) 7 Geo. 4, c. 46, s. 9. (a) Story on Partnership, 156. 
 
 (.r) 7 Will. 4 & 1 Vict. c. 73, s. 3. (4) Blair i>. Bromley, 5 Hare, 542, 
 
 ((/) 3 Geo 4, c. 126, s. 74. affirmed on appeal, 2 Phil). 354. 
 {z) 18 & 19 Vict. c. 63, s. 19.
 
 288 SPECIALTY AND SIMPLE CONTRACT DEBTS, ETC. 
 
 Thus a solicitor has been held bound by the malfeasances of 
 his partner, and personally answerable in Equity for them to a 
 client of the firm, although it was proved he had no actual know- 
 ledge of the fraud, and although the partnership has been dis- 
 solved, and although the client might have proceeded against the 
 innocent partner at Law. In such a case the bar to the claim of 
 the client would not begin to run, in point of time, till he had 
 discovered the fraud (c). 
 
 Where one only of the partners was a trustee of funds which 
 were lost by his defalcations, the cestui que trust may recover in 
 • Equity the loss against his co-partners (c?), though they were 
 personally and individually ignorant of his breaches of trust. In 
 the case referred to, the firm were stockbrokers, and the property, 
 part of it foreign bonds, was in their custody. " To allow the 
 other partners to avoid all liabilities in respect of transactions" 
 {actually performed by the defaulting member only) " because they 
 were not personally communicated to each of them, wovdd be to 
 prevent its customers dealing with a mercantile establishment, con- 
 sisting of more than one partner, without a degree of trouble and 
 precision of notice, which would practically render such dealings 
 impossible" (e). Every case, however, seems to stand on its own 
 peculiar circumstances. In some, coming apparently most 
 nearly to those we have referred to, the ignorant partners have 
 not been held liable (_/), and the absence of actual knowledge on 
 their part has been put as a ground of their exemption from 
 liability. 
 Siiould not all It must be remarked, however, that the extent to which the 
 doctrine of constructive or implied, as distinguished from express 
 notice, has been pushed, may well be said to carry with it evils on 
 the other side of equal if not greater magnitude ; and it is a matter 
 of great regret, in my humble opinion, that the clause inserted 
 by Lord St. Leonards in his Law of Property and Trustees Relief 
 Amendment Bill, abolishing constructive notice to purchasers, was 
 struck out by the Lower House of Parliament. If the doctrine 
 of constructive notice, as now recognized in our Courts of Equity, 
 merely went to presume actual notice from the intimate relation of 
 the parties, or other circumstances, no injustice would seem to 
 follow; but where, as now, a presumption raised from it is so 
 
 (c) Ibid. ((') Ibid. 118. 
 
 {(l) La Marquise de Ribcyie v. (/) E. g.. Bishop v. Countess of 
 
 Barclay, 23 Beav. 107. Jersey, 2 Drew. 143. 
 
 notice be 
 express
 
 DEBTORS AND CREDITORS (PARTNERS). 239 
 
 violent that no rebuttal is allowed, nor weight allowed to a denial 
 of actual notice, surely it is suhstituted for the latter, and is 
 carried to an extent dangerous to the public and unfair to in- 
 dividuals. 
 
 Let us now suppose the debt to be due from a partnership Partnerships 
 bankrupt or wound up. If the debt be due from an entire Cor- "'"''^riii)t or 
 
 ^ ^ wound up. 
 
 poration, no question will arise on bankruptcy ; such Debtors 
 not being trading Companies. If the debt be due from a quasi- 
 Corporation, then the Creditor's rights and remedies cannot be 
 rightly estimated without inquii-y into the nature of the particular 
 Company. 
 
 Following then the same division of the subject as with Judg- Quasi-Cor- 
 ment debts of such Companies, the rights of Creditors by po.'"^^*^ partner- 
 specialty or simple contract will stand thus — 
 
 1. As to Companies (</) within the Joint Stock Companies 
 Acts, 1856, 1857. 
 
 Speaking here of England and Ireland only, and of Creditors Compulsory 
 (properly so called) as distinguished from " Contributories," "'"'''"o "P- 
 though the latter are, in one sense. Creditors, (of which 
 more hereafter,) {h) and speaking here only of compuhory 
 winding up, — for that is the only winding up which a Creditor 
 can himself put in force against the Company, — any Creditor 
 of the Company by specialty or simple contract to the amount 
 of oOL, -svhose debt has remained unpaid, or unsecured, or 
 uncompounded for, to his satisfaction, for three weeks after 
 written service by him on the Company of a demand for 
 payment, may, even though the Company has been wound 
 up voluntarily (i), present to the Court a petition for winding 
 it up {k). The Court shall mean, (i.) If the Company be What Court 
 subject to the Stannary Jurisdiction— the Vice-Warden's Court, shall wind up. 
 (ii.) If it is not so subject, but is limitedly liable, and registered 
 in England — the Court of Bankruptcy having Jurisdiction w^here 
 the Company's registered office is. (iii.) If it is a limited Com- 
 pany in Ireland with a registered nominal capital under 5,000/., 
 — the Irish Bankrupt Commissioners (J), (iv.) In all other cases, 
 the High Court of Chancery in England or Ireland (in) : who may 
 also remit the winding up of any Company, which itself may have 
 
 {g) As to what are, p. 106. {k) Ihid ss. 67, 68. 
 
 {h) Post, this section. (/) Ibid. s. 60. 
 
 (/) 19 & 20 Vict. c. 47, s. lOJ. (;«) Ibid.
 
 240 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS, ETC. 
 
 Powers and 
 Duties of 
 Court. 
 
 Fraudulent 
 conveyances. 
 
 Creditors' 
 Liquidator. 
 
 Creditors 
 
 V. 
 
 Contiibutori( 
 
 ordered, to the Court of Bankruptcy or of the Stannaries, as the 
 case may be (??). 
 
 The Court may dismiss the petition, or order all monies that 
 may be proved due to the Creditor to be paid or secured by a 
 given time, or order the winding up of the Company immediately, 
 or on the expiration of such time {o) ; and may any time after the 
 petition is presented, on motion by any Creditor, restrain, even to 
 the staying all proceedings, if for the general benefit of the Credi- 
 tors {]}), any action or suit against the Company ; or appoint a 
 Receiver {(j) ; and, after a Winding-up Order is made, may, on 
 motion by a Creditor, stay all proceedings in relation to the wind- 
 ing up (f) ; and shall, as soon as may be after the Winding-up 
 Order, order the assets to be collected and applied in discharge 
 of the Company's liabilities "in a due course of administra- 
 tion" (s) ; and may require Creditors to prove within a given time, 
 or be excluded from any distribution made before such proof {t). 
 
 Conveyances and payments, which would be fraudulent as 
 against the Creditors of a sole bankrupt, are invalid against the 
 Company's Creditors ; as also are conveyances by the Company 
 to trustees for the benefit of its Creditors (u). 
 
 The majority (in value) of the Creditors or Contributories may, 
 according as the winding up, being before the Bankruptcy Court, 
 has been at the instance of a Creditor or of a Contributory, ap- 
 point an Official Liquidator to act with the Official Assignee {x). 
 
 The Creditors cannot put in motion a voluntary winding up, 
 though they may be admitted to its privileges ; for on such a 
 winding up the Company's property shall be applied in satisfac- 
 tion of its liabilities, (the costs of winding up to be a first 
 charge,) (y) and the Liquidators (to be appointed at a general 
 meeting of the Company) may, any time after the resolution to 
 wind up, call on the contributories (to the extent of their liabili- 
 ties) to pay debts of the Company (2^). 
 
 A " contributory" of the Company is any existing or former 
 g, shareholder, upon whom calls are authorized to be made by the 
 
 (n) Ibid. s. 74. (,9) Ibid. s. 75. 
 
 (0) Ibid. ss. 70, 71. (0 Ibid. s. 84. 
 
 (p) In re Northumberland and Dur- (u) Ibid. s. 76. 
 
 ham District Banking Company, G (x) Ibid. s. 88. 
 
 W. R. 267. (2/) Ibid. s. 104. 
 
 (5) 19 & 20 Vict. c. 47, s. 84. (z) Ibid. 
 
 (>•) Ibid. s. 85.
 
 TO AND FROM PARTNERS. 
 
 241 
 
 third part of 19 & 20 Vict. c. 47(a). Of the existing share- Who are Con- 
 hoklers no further definition need be given: but "former" share- '" "'*'"^^' 
 holders so liable, are such as have not, for three years prior to 
 the commencement of the winding up, (if the Company being 
 unlimited is wound up either by a Court or voluntarily,) or for 
 one year, (where the Company is limited,) ceased to be share- 
 holders (h) ; except that, in the case of an unlimited Company, 
 they shall not be liable to debts of the Company contracted after 
 they ceased to be shareholders (c). 
 
 " Existing and former" shareholders, thus understood, are Liability of. 
 liable, if the Company (whether wound up voluntarily or by the 
 Court) is unlimited, to an amount sufficient to pay the Company's 
 debts (c?), if limited, to the amount of their unpaid shares only(e). 
 
 The Coint, where the winding up is compulsory, or the Liqui- 
 dators, where it is voluntary (/), may make calls on the Contri- 
 butories to the extent of their liability. 
 
 Those only who appear on the register — which the Court will 
 amend (^) — and \\2Lwe accepted shares, are shareholders (/i) ; but 
 the second husband of a feme shareholder, who is on it by her 
 widow's name, may be liable {i). 
 
 A " Call" may, primarily, be defined as that portion of unpaid What a "Call" 
 shares which the shareholder has agreed to take in a Company, ^^' 
 and which the Company from time to time " calls for" as the 
 finances require, before its loinding up (j) ; and, secondarily, as 
 such a sum, (not exceeding the amount of the liability of the 
 shareholders) as, — measured by sects. 61, 62, 63, and not (as in 
 the former case) by the shares they have agreed to take, — the 
 Court, or Liquidators, on winding up, find it necessary to " call" 
 in to pay the debts of the Company. 
 
 Calls, in the second of the above-mentioned senses, are spe- Is a Specialty 
 cialty debts from the Contributories to the Company (k). 
 
 The Creditor of a partnership, which ought to be registered 
 but is not, may sue for his debt every person carrying on busi- 
 ness in partnership without such registration (/), without joining 
 in the suit any other member. 
 
 («) Ihid. s. 65. (/,) 19 & 20 Vict. c. 47, s. 19. 
 
 (6) Ibid. ss. 62, G3. (i) Ex parte Luard, 8 W. R. 297. 
 
 (c) Ibid. s. 62. (J) Wordsworth on Parliamentary 
 
 (d) Ibid. s. 61. Companies, p. 86 (6th ed.). 
 
 (<•) Ibid. (/c) 20 & 21 Vict. c. 14, s. 13. 
 
 (/) Ibid. ss. 82, 104 (6). (l) Ibid. s. 3. 
 
 (g) Whittet's Case, 2 De G, & J. 577. 
 
 R
 
 242 SPECIALTY AND SIMPLE CONTRACT DEBTS 
 
 W.-U. Acts, 2. Companies still subiect to the Winding-up Acts, 1848, 
 
 ' * 1849, including Banking and Mining Companies (whether in the 
 Stannaries or not) not registered under the Joint Stock Acts, 
 1856, 1857, and Insurance Companies. 
 
 The rights of Specialty and Simple Contract Creditors of these 
 Companies, upon the commission by the Company of any act 
 amounting to an act of corporate insolvency, stand thus : 
 Creditor After the appointment of an Official Manager, the Creditor, 
 
 Company. whether a contributory or not, may sue him as the nominal de- 
 fendant representing the Company (/). The Masters' jurisdiction 
 under these Acts, which was, as we have seen, for awhile pre- 
 served {m), is now abolished (n). 
 
 If the action is pending, when the Official Manager is ap- 
 pointed, the Creditor may continue it by substituting him as the 
 defendant, and entering a " suggestion" on the roll, to the effect 
 that he has been so appointed (o). He cannot commence or 
 proceed with any action after the Official Manager is appointed, 
 without first claiming and proving before the Master (p). After 
 he has done so he may— subject to 20 & 21 Vict. c. 78, s. 7 — go 
 Proof as in on, whether the Master allow it or not. He shall " prove" as in 
 Bankruptcy. Bankruptcy, unless the Master otherwise direct (5^). The Official 
 Manager is, under the Master's direction, to apply the assets in 
 payment of debts in such manner, whether by way of dividend 
 or otherwise, as the latter shall direct (?•). This would not, it is 
 presumed, give him an implied authority to pay specialty and 
 simple contract Creditors, pari passu, especially as it is declared 
 that " Creditors' rights shall remain unaffected, except where it 
 is otherwise expressly provided" {s). Observe, moreover, the Act 
 does not say payment shall be made, but proof shall be made 
 {i.e., the mode of proof shall be) " as in Bankruptcy." 
 
 The Master may make Calls on the Contributories, so far as 
 they are liable at Law or in Equity, to pay the Company's debts {t). 
 «« Call," what. The definition of a "Call" wdthin these Acts is a demand or 
 requisition upon contributories of a Company for a contributory 
 payment towards the funds or assets thereof, or for the discharge 
 or payment of any of the debts, liabilities or losses of such Com- 
 pany (m). 
 
 (/) 11 & 12 Vict. 0.45, s. 50.; (<7) Ibid. s. 74. 
 
 (m) 15 & 16 Vict. c. 80, s. 10. (r) Ibid. s. 82. 
 
 (n) 23 & 24 Vict. c. 149. («) Ibid. s. 58. 
 
 (o) 11 & 12 Vict. c. 45, s. 52. (<) Ibid. s. 83. 
 
 {j>) Ibid. s. 73. («) Ibid. s. 3.
 
 TO AND FROM PARTNERS. 243 
 
 A Call by the Master on a Contributory or his executors, A Simple con- 
 under sect. 83 of the Act of 1848, is a simple contract debt, 
 althoufjh the Contributory's original liability to pay it, as between 
 himself and the Company, was by specialty, e. g., the deed of 
 Settlement {x). 
 
 And a Contributory — a term adopted by the Joint Stock Who are Con- 
 Acts, 18.5G, 1857, but originally applied to members of Com- 
 panies within the Winding-up Acts, 1848, 1849 — is defined as 
 *' every member of a Company, and also every other person, liable 
 to contribute to the payment of any of the debts, liabilities or 
 losses thereof, whether as heir, devisee, executor or administrator 
 of a deceased member, or as a former member of the same, or 
 as lieir, devisee, executor or administrator of a former member of 
 the same deceased, or otherwise howsoever " ( y). 
 
 The reader must bear in mind that, as already obsei'ved, Acts not Cre- 
 (except in the case there mentioned,) {z) the Creditors cannot put ^^^^^^' remedy. 
 in. force these Winding-up Acts, though they may come in for the 
 benefit of them. The Acts, therefore, are only incidentally 
 remedies /o?' them. 
 
 The Official Manager may defend (with the Master's leave) Creditor 
 any action or suit brought by the Creditor against any Contri- „ ":, 
 hutory (a), and the Master may (with the consent of the Creditor) 
 direct issues of Law or fact to be tried, in cases which may arise 
 between such Creditor and the Company or any Contributory (b). 
 
 The Judge or Master may, by advertisement, at the instance Creditor's Re- 
 of a Creditor, call on the Creditors to appoint one or more " Re- P'*^s^"'^^tive. 
 presentatives," and two-thirds of Creditors who have proved may 
 appoint them : and all the Creditors shall be deemed parties to Company not 
 the Winding up, from the date of the advertisement (c). '^" '"^' ' 
 
 The Creditors' assignees of any Bankrupt Company shall be Bankrupt, 
 such Representatives without appointment, and may accept from 
 any shareholder a reasonable sum in compromise of his liability to 
 the debts of the Company {d). And so may, with the leave of a 
 Judge or Master, the Company's appointed Representatives (e). 
 
 When such Company shall be adjudged Bankrupt, or after the 
 advertisement, (if it be not Bankrupt,) no action or suit shall be 
 brought against it without leave (in the former case) of the Court 
 
 (j.) In re The Royal Bank of Aus- (&) Ibid. s. 91. 
 
 tralia, 6 De G., M. & G. 572. (c) 20 & 21 Vict. c. 78, s. 1. 
 
 ((/) 11 & 12 Vict. c. 45, s. 3. {d) Ibid. ss. 1, 2. 
 
 (s) Ante, p. 118. (e) Ibid. s. 3. 
 («) 11 & 12 Vict. c. 45, s. C2.
 
 Si4 
 
 SPECIALTY AND SIMPLE CONTRACJ- DEBTS 
 
 Companies 
 within 7 & 8 
 Vict. c. 111. 
 
 8 & 9 Vict. 
 c. 98, 9 & 10 
 Vict. c. 28. 
 
 Un-incorpo- 
 rate Partner- 
 sliip. 
 
 Joint Bank- 
 ruptcy. 
 
 Separate. 
 
 of Bankruptcy, if the Bankruptcy were before the Winding-up 
 Order, or (in the latter case) of the Judge or Master (/). 
 
 Creditors' rights against any persons other than Contributories 
 are not affected by such compromise ; and they shall, as against 
 shareholders (affected thereby) at the time when their causes of 
 action arose, be in the same position as if they had obtained an 
 execution against them, and could not satisfy it beyond the 
 amounts paid them under the compromise {g). 
 
 A Company, though in process of being wound up under the 
 Acts, 1848, 1849, may yet be subsequently made Bankrupt under 
 7 & 8 Vict c. 1 11 (/*) ; but the Bankruptcy is only available for 
 the purposes of the winding up {i). 
 
 The specialty and simple contract Creditors of Companies 
 within 7 & 8 Vict. c. Ill, stand as nearly as possible in the 
 position of Creditors of ordinary Bankrupt Debtors, for it is ex- 
 pressly declared that the general Law and Practice of Bank- 
 ruptcy shall apply, as nearly as may be, to such Acts, Little 
 more, therefore, need be said as to the rights of such Creditors 
 than to refer to a former part of this work {j ). 
 
 A Creditor, who has commenced an action against the Com- 
 pany, may present a petition and prove under it, and his rights 
 against the separate estate of any member are not prejudiced 
 thereby {h). 
 
 As to Creditors of Companies within 8 &: 9 Vict. c. 98, and 
 9 & 10 Vict. c. 28, and Banking Companies not required to be 
 registered, and not registering, under the Joint Stock Acts, 1856, 
 1857, ante, p. 121. 
 
 If the debt be due from an unincorporated partnership, bank- 
 rupt, the same rules, mutatis mutandis, apyjly as to proof, and 
 pari passu payment, as in the case of a sole bankrupt Debtor. 
 The joint and separate estates pass to the Banki'uptcy assignees, 
 and the administration of botli is in Bankruptcy. There the 
 joint (specialty and simple contract) Creditors will be first paid 
 out of the joint assets, (so far as they will extend,) and then, but 
 not till after the separate (judgment, specialty, and simple con- 
 tract) Creditors, out of each separate estate rateabhj il). 
 
 If the bankruptcy be that of a partner Debtor, not of the part- 
 nership, an account is directed of the joint estate, and the whole 
 (/) Ibid s. 7. 
 
 (g) Ibid. s. 5. 
 
 (/j) Re The Royal Britisli Bank, 5 
 \V. R. in. 
 
 (?) In re London and Eastern Bank- 
 
 ing Corporation, 2 De G. & J. 484. 
 {j) Ante, p. 213, e< 5^(7. 
 (/<•) 7 & 8 Vict. c. Ill, s. 10. 
 (0 Ante, p. 103.
 
 TO AND FROM PARTNERS. ^^^ 
 
 account is taken in bankruptcy (m), except in mining cases, the 
 ground, on which it is so taken, being that the partnership is 
 dissolved (/*)• 
 
 Through the medium of the account of the joint estate, the 
 balance, if any, due to the bankrupt will be ascertained ; such 
 balance will constitute his separate estate, and his specialty and 
 simple contract Creditors will have against it the same rights 
 and remedies as if he had been a sole bankrupt, and not a 
 partner (o). 
 
 At Law, and in Equity, unincorporate partners should all sue Un-incorpo- 
 during the joint lives ; and after the death of any, the survivor gj^pj]^*^'"'^'^' 
 alone (p), who will, in Eqidhj, be a trustee for the deceased of 
 his share {q). 
 
 If the partner, not the partnership, be bankrupt, (i. e., if it be Separate Bank- 
 a separate bankruptcy), his right of action against his separate "'"P^'^y- 
 Debtors passes to his assignees, as usual, and the case will be 
 the same as if he were a sole Creditor ; whilst as regards the 
 Debtors to the partnership, his assignees may, by leave of the 
 Court of Bankruptcy, sue them, in their own name and that of 
 the solvent partner, as if he had consented (r). 
 
 If the partnership is bankrupt, the Creditors' rights will fall Joint, 
 within the \2 & 13 Vict. c. 10G,as in the case of a sole Creditor; 
 that Act, though not by name, comprehending partnerships. 
 
 If the partnership be a Corporation proper, it can sue at Law Corporations 
 only by its corporate name, and by an attorney appointed by 
 Deed {s) ; and the suit does not abate by the death of a sole Cor- 
 poration it), or a member of a Corporation aggregate. And so in 
 Equity; though there the suit abates by the death of a sole 
 Corporation (m). 
 
 Companies registered under the Joint Stock Acts, 1856, 1857, Quasi-Cor- 
 are incorporated so far as to enable them also to sue at Law and {before 
 in Equity, in their corporate name, though not expressly em- winding up. 
 powered by the Act to do so (y). And so of Insurance Companies, 
 the only class of Companies now within 7 & 8 Vict. c. 110, upon 
 their obtaining complete registration under that Act {lo). And so 
 of Companies within 8 & 9 Vict. c. IG, since they are ex hypothesi 
 incorporated Companies. 
 
 (jn) Ord. Loughborough, 8th March, (r) 12 & 13 Vict. c. lOG, s. 152. 
 
 1794. («) Archb. Pr. 1081. 
 
 (?j) Collyer on Partnership, 786. (0 C. L. P. Act, 1852, ss. 135, 227. 
 
 (o) Ante, p. 213. («) 1 Dan. Ch. (Headl.) 25, 27. 
 
 Ip) Broom on Parties, 65 (2nd cd.) {v) 19 & 20 Vict, c.47, s. 13. 
 
 ((/) Jeffereys v. Small, 1 Vern. 217. {w) 7 & 8 Vict, c. 110, s. 25. 
 
 r3
 
 246 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 With regard to Banks, such as are still within 7 Geo. 4, 
 c. 46 (wj), must sue by their public officer {x). Companies within 
 7 Will. 4 & 1 Vict. c. 73, may be directed by their Letters 
 Patent to sue at Law and in Equity by one of their two appointed 
 officers (y). Turnpike Road Trustees may sue at Law or in 
 Equity in the name of one of them or of their clerk {z). The 
 Trustees of Friendly Societies may sue at Law and in Equity in 
 their proper names, without any other description (a). 
 After winding If the debt be owing to a Qwasi-Corporation, then, (following 
 "P' the division before adopted,) if the Company be within the Joint 
 
 Stock Acts, 1856, 1857, and be wound up under them, the Official 
 Company Liquidator may, with leave of the Court (&), and the Company's 
 
 Debtor Liquidators may, at their own discretion, if the winding up is 
 
 voluntary (c), sue the Debtor, at Law, as the nominal plaintiff, 
 and proceed to Judgment, as though they were ordinary Cre- 
 ditors, and prove under the Bankruptcy or Insolvency of such 
 Debtor. The Court may, after winding up, summon before it 
 any person supposed to be indebted to the Company, and compel 
 him to disclose matters necessary for the winding up (J). 
 W.-U. Acts, If the Company, including Mining and Insurance Companies, 
 
 1858, 1859. ^g ^jji^j^ ^l^g Winding-up Acts, 1848, 1849, the rights of the 
 Company stand thus : After the Official Manager is appointed, 
 he may, but not without the Master's leave (e), sue, as the nominal 
 plaintiff on behalf of the Company, in the usual way (/), any 
 Debtor of the Company, and "prove," if the Debtor is Bankrupt 
 or Insolvent, under his Bankruptcy or Insolvency (^r). 
 
 If begun by the Company before his appointment, the Official 
 Manager may, with leave of the Master {h), continue it, by " sug- 
 gestion" on the roll to the effect that he has been appointed (?*). 
 
 The Official Manager may also, with the Master's leave , enforce 
 payment of, give time, or compound, or take security for, any 
 claim against any Contributory, or abandon it when he is dead, 
 Bankrupt, Insolvent, or abroad, apportioning it among the other 
 contributories. But such claim shall not be considered, though 
 abandoned, to discharge the Contributory's estate, and may be 
 proved on his bankruptcy or insolvency, or " proceeded" for (k) 
 against him, by the Official Manager. 
 
 {w) 7 Geo. 4, c. 46, s. 3. (d) Ibid. s. 77. 
 
 (x) Chapman v. Milvain, 5 Exch. 61. (e) 11 & 12 Vict. c. 45, s. 60. 
 
 (y) Sect. 3, (/) Ibid, s. 50. 
 
 (*) 3 Geo. 4, c. 12C, s. 74. (g) Ibid. 
 
 (a) 18 & 19 Vict. c. 63, s. 19. (/() Ibid. s. 60. 
 
 (fc) 19 & 20 Vict. c. 47, s. 90. {i) Ibid. s. 53. 
 
 (c) Ibid. s. 104 (7). (k) Ibid. s. 88.
 
 TO AND FROM PARTNERS. 247 
 
 If the Company is within the 7 & 8 Vict. c. 1 1 1, or 8 & 9 7 & 8 Vict. c. 
 
 , . 1 TA , • , in. and 8 & 9 
 
 V ict. c. 98, the assignees may sue the Debtor in the same way vict. c. 98. 
 as the assignees of a sole bankrupt Creditor may, i. e., with leave 
 of the Court {I). 
 
 If a Company within the 9 & 10 Vict. c. 28, has resolved on 9 & 10 Vict. 
 
 . .0. 28. 
 
 a dissolution, and that it shall be an act of bankruptcy, or if a ' 
 petition for adjudication has been presented against the Com- 
 pany under ss. 2S, 28, the specialty and simple contract debts 
 due to it are recoverable in the same M^ay as if it were within 
 7 & 8 Vict. c. 1 1 1, or 8 & 9 Vict. c. 98. If the Company have 
 resolved that the dissolution is not an act of Bankruptcy, the 
 debts are recoverable as debts due to a dissolved unincorporate 
 partnership, subject to the Creditors' or committee-men's right to 
 make the Company bankrupt (m). 
 
 II. Debts due to and from partners inter se. 
 
 This Chapter of Law is part of the doctrine of " Contribu- Debts due to 
 tion," on which, so far as it applies to the case of Judgment ^^^^ j',^''j™ ^^^ ' 
 Creditors and as between sureties (n), we have already dwelt. 
 
 It is however, in connexion with the modern QMa.9z-corporate 
 partnerships of Joint Stock Companies, that the doctrine is most 
 familiar to the learned reader. And it will be in this connexion 
 that I propose now shortly to advert to it. Hitherto I have 
 supposed the Creditor and Debtor to be strangers to each other. 
 
 It is, as has been stated, a Common Law as well as an Equitable 
 Doctrine (o), though mostly the latter. But the Statute Law has 
 lately largely adopted and improved upon it. 
 
 L At Law, if money be lent by one partner to another on spe- Un-incorporate 
 cialty or simple contract, Avhich, when the cause of action accrued, pa'"'"^''"s»'ps. 
 might have been placed as an item in the partnership accounts, 
 or with regard to which it may depend on the taking of those 
 accounts, whether it is really due or not, the lender cannot sue 
 the borrower ; upon the maxim that it would be useless for him 
 to recover what he might be ultimately found bound to re- 
 fund ip), "frustrd peteret quod mox restiturus esset," and that to 
 sue a partner, who is part of himself, would be in fact to sue 
 himself. Nor can one firm sue another, if the same person is 
 partner in both (q). 
 
 (l) Ante, p. 217. (o) Ibid. 
 
 (;») 9 & 10 Vict. c. 28, ss. 24, 27. (p) Collyer, 175 (2nd ed.) 
 
 («) Ante, pp. 7.5, 199. (q) Broom on Parties, 60.
 
 248 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS 
 
 Exceptions. 
 
 New County 
 Court Acts. 
 
 At Law no 
 
 contribution. 
 
 In Equity. 
 
 Quasi-Cor- 
 porations. 
 
 But in some few special cases, as where the money lent was the 
 hash of the account when the partnership began, or was a sum 
 separated from the account whilst it lasted, or was the balance 
 of the account when it ceased or when a general adjustment of 
 its affairs took place, the Creditor-partner may sue at Law (r). 
 And there is nothing to prevent a partner from suing or being 
 sued by the other partners, for matter dehors the partnership 
 business, if the contract was betv/een them in their independent 
 capacities, and not qua partners is). 
 
 And by the New County Court Acts the Creditor-partner may 
 by suit in the County Courts recover any demand not exceeding 
 50?. (0, being the whole or a part of the " unliquidated balance 
 of a partnership account." This would appear to mean the 
 balance claimed on a partnership account not yet taken, and to 
 imply a power in the Court to take the account. 
 
 There seems to be at Common Law no right for partners to a 
 contribution inter se : a partner, against whom damages and costs 
 have been recovered by a third person, cannot sue his partner for 
 a proportional part of such damages and costs (u). 
 
 The rights of the Creditor-partner, in Equity, involve the 
 whole question of dissolution and account, and have in part been 
 forestalled in treating of the rights of stranger Creditors {x). 
 
 Prior to the happening of any event, which either ipso facto 
 dissolves, or is good cause for dissolving, the partnership, the 
 specialty and simple contract Creditor-partners, whether the debt 
 be due from the partnership or a partner, have no locus standi in 
 Equity for an account and payment, otherwise there would be, 
 (to use Lord Eldon's words,) " nothing to prevent their coming 
 into Equity annually" (^). And the same is Law, where the debt 
 is due from the partner to the partnership. 
 
 Upon the happening, however, of such an event, a right arises 
 to the Creditor-partner to an account in Equity and payment, or 
 to a dissolution, account and payment, if the event is not ipso 
 facto a dissolution {z). 
 
 2. Let us next consider the subject of contribution, as between 
 members of a Q«<asi-corporate partnership. 
 
 (r) Ibid. 179^ 
 
 (.s) Story on Partnersbip, s. 219. 
 (0 9 & 10 Vict. c. 95, s. C5, and 13 & 
 14 Vict. c. 61, s. 1. 
 
 («) Pearson v. Skelton, 1 Mee. & W. 
 
 504. 
 
 (.r) Ante, p. 101. 
 
 (y) Forman v. Homfray, 2 V. & B. 
 329. 
 
 (z) Ante, p. 101.
 
 TO AND FROM PARTNERS. 249 
 
 (i.) Before Winding up. Before 
 
 A r^ • • 1 • n n r^ tt. 1^1 ^ Winding up. 
 
 As to Companies within 8 & 9 Vict. c. 16, the Companv may ^ „ „ ,,. 
 
 ' _ ' ' •' -^ 8 & 9 Vict. c. 
 
 sue any shareholder, in any Court of Law or Equity having com- 16. 
 petent Jurisdiction, for calls on their shares, and recover interest Company 
 thereon at the rate allowed by Law (a). Shareholder. 
 
 The Act gives no Rights or Remedies at Law to one share- Shareholders 
 holder against another ; following in this the old Common Law *"'^' ^^' 
 maxim above referred to : and the only right it gives a share- 
 holder against the Company, during the same period, is in the Company, 
 event of an execution Creditor of the Company having issued 
 execution against the separate estate of such shareholder, (as he 
 may, to the extent of such shareholder's unpaid shares) (b), in 
 which case such shareholder may be forthwith reimbursed by the 
 Directors out of the funds of the Company — though the Act does 
 not say how he shall enforce that reimbursement, if withheld, nor 
 whether at Law or in Equity — to the amount paid by him on the 
 execution beyond the calls due from him (c). 
 
 Railway Companies are frequently enabled by their Acts to Preference 
 issue Preference shares, (i. e., to guarantee the payment of fixed ,. "' 
 dividends upon them to a certain class of shareholders, in pre- Shares. 
 ference to those accruing on ordinary shares). Li this case dis- 
 putes may arise between the preference and ordinary share- 
 holders, whenever the sum divisible by the Company for profits 
 is at any one time insufficient for the payment of both classes. 
 It has been decided that the former class is entitled to a charge 
 on the accruing profits for arrears unpaid, as well as to the new 
 dividends ; such charge being substantially interest on their past 
 profits (d). 
 
 As to Companies within the Joint Stock Acts, 1856, 1857, J. S. Acts, 
 other than Banks. ^^"'^' ^^^^• 
 
 Calls unpaid on any share are a debt due to the Company from Company 
 the shareholder, and recoverable as such, (i. e., it is presumed at "•, , 
 
 X 1 1 1 1 N / V 1 1 1 • p 1 • 1 1 Shareholder. 
 
 Law as a legal debt,) (e) and the shares in respect oi which they are 
 made shall be forfeited to the Company on non-payment after 
 notice, without prejudice to the shareholders' liability to the 
 Company in respect of calls due at the time of forfeiture (f), 
 
 (ff) 8 & 9 Vict. c. 16, s. 25. & J. 606. 
 
 (h) Ibid. s. 36. (e) Ante, p. 101. 
 
 ((•) Ibid. s. 37. (/) 19 & 20 Vict. c. 47, Sched. 
 
 (d) Henry v. Great Northern Rail- Table B. (15), (16), (17), (19). 
 way, •I' K. & J. 1 ; on ajipe.il, 1 De G.
 
 250 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS 
 
 Shareliolders 
 
 V. 
 
 Company and 
 inter se. 
 
 Banks. 
 
 On winding up 
 J. S. Acts, 
 1856, 1857. 
 
 Company 
 
 V. 
 
 Contributory. 
 
 W.-U. Acts, 
 ISIS, IS-iO. 
 
 Company 
 Contributories. 
 
 The Acts seem to give no remedy to a shareholder against the 
 Company, nor to shareholders inter se, prior to winding up : 
 therefore, such rights are subject to the Common Law disquali- 
 fication above mentioned. 
 
 As to Banking Companies, if registered under the Joint Stock 
 Companies Acts, 1856, 1857, the rights of partner Creditors will 
 of course be the same as those of Creditors of such Companies. 
 Members of Banks within 7 Geo. 4, c. 46, may sue the public 
 officer of the Bank for any demand against the Bank, and the 
 public officer may in like manner sue such members, as if the 
 action had been between strangers (g). 
 
 As to Companies within 7 Will. 4 & 1 Vict. c. 73, they may, 
 by one of the two officers whom the Letters Patent may appoint 
 to sue, sue any member (It), and vice versa, any member may 
 sue the Company through such officer, or if there be no officer, 
 may sue any other member (i). 
 
 Insurance Companies completely registered under 7 & 8 Vict. 
 c. 110, may sue any member, and any member may sue the 
 Company, at Law and in Equity, by its registered names. 
 
 (ii.) On Winding up. 
 
 The rights, on winding up, of stranger Creditors of Com- 
 panies within the Joint Stock Acts, 1856, 1857, have been 
 considered. As regards the partners themselves, the Court 
 or Company's Liquidators (as the case may be) may, as soon as 
 the Creditors are satisfied, adjust the rights of the contribu- 
 tories inter se, and for that purpose make calls on them, taking 
 into consideration the probability that some will not pay. 
 
 The Official or Company's liquidator, as the case may be, 
 may, if the contributory refuse to pay a call, which is a spe- 
 cialty debt, and that whether the Company be limited or un- 
 limited, sue him for it on behalf of the Company, and may 
 prove for it as a balance due from such contributory, if he be 
 bankrupt or insolvent, as a separate debt, and rateably with 
 his other separate Creditors. The calls are debts due to the 
 Company. 
 
 As to Companies, including Banks, within the Winding-up 
 Acts, the Official Manager may, with the Master's leave, and 
 as the nominal plaintiff on behalf of the Company, sue any 
 
 (g) 1 & 2 Vict. c. !)(>. 
 (h) Sect. 3. 
 
 (0 Ibid.
 
 TO AND FROM PARTNERS. 
 
 251 
 
 contributory (A), or prove under his Bankruptcy or Insol- 
 vency (Z). 
 
 Where tlie Sheriff has, in such a suit, levied on the goods of 
 a Contributory, the Court vi'ould, in a proper case, be disposed 
 to protect him, by interpleader, against the claims of other per- 
 sons to such goods (in). 
 
 The Master may also make calls on the Contributories, Contributories 
 (but only so far as they are liable at Law or in Equity,) for ^"^'^®- 
 adjusting their claims inter se, or against the Company (7i). 
 
 The line between the liability and non-liability of husbands of 
 feme shareholders to Contribution seems very narrow, uncertain 
 and unsatisfactory (o). 
 
 Will the Legislature not make a clean breach through this 
 " conflict" of Laws — which, so long as it mystifies the Statute 
 Book, it is vain to hope any commentary upon that book will 
 make intelligible — and enunciate a rational, uniform (and there- 
 fore comprehensive), and comprehensible, code of Joint Stock 
 Company Laws, — worthy of a great nation i 
 
 Section 3. 
 Creditors' Composition Deeds — Clubs. 
 
 Non-traders. 
 
 Non- Statutory Compositions. 
 
 Time essence of the Contract. 
 At Law. 
 How in Equity. 
 By Insolvents. 
 By Joint Stock Companies. 
 Remedies of Creditors. 
 Of Debtor. 
 
 Where Deed is irrevocable. 
 Where not. 
 Statutory Compositions. 
 
 Traders. 
 Clubs. 
 
 Ordering Committee-man. 
 
 Contribution. 
 
 Power of Majority. 
 
 Not ivi thin W.-U.Acts, 1848, 1849- 
 
 Promoters of Company. 
 Co-promoters. 
 Sub-committee. 
 
 Creditors under composition or trust deeds may be regarded 
 as purchasers. They purchase their rights of coming on the pro- 
 perty by their forbearance to sue for their whole debt. 
 
 This class of Creditors may be conveniently distinguished as 
 follows : viz., into Creditors of non-traders in insolvent circum- Non-traders, 
 stances, claiming under an arrangement entered into with them, 
 
 (A) 11 & 12 Vict. c. 45, s. 50. 
 
 {I) Ibid. 
 
 (»n) Tufton v. Harding, 8 W. R. 122. 
 
 (n) 11 & 12 Vict. c. 45, s. 83. 
 
 (o) Sadler's case, 3 De G. & Sm. 
 
 37 ; Burlinson's case, ibid. 18 ; Angus' 
 case, 1 De G. & Sm. 5(J0 ; Ness v. 
 Angas, 3 Exch. 805 j Dodgson v. Bell, 
 5 Exch. 967.
 
 252 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Non-statutory 
 Compositions. 
 
 Assignment. 
 
 Deed of 
 Inspection. 
 
 Letter of 
 Licence. 
 
 Not void under 
 13 Eliz. 
 
 Time essence 
 of Contract. 
 
 At Law. 
 
 How in Equity. 
 
 firstly independently, or secondly by virtue, of Statutory provi- 
 sions ; and thirdly, into Creditors of Traders claiming under a 
 deed of arrangement. 
 
 A non-Statutory Composition is effected generally in one of 
 three ways (o) : 
 
 1. By a Deed of Assignment to Trustees (who are generally 
 themselves Creditors), in trust for one or more or all of the 
 Creditors, to convert the property into money (thereby divesting 
 the assignor of all control over it), and to pay them thereout 
 proportionally, or with certain priorities. 
 
 2. By a Deed of Inspection allowing the Debtor to retain 
 the management of his property, but placing it under Inspectors 
 appointed by the Creditors {p). 
 
 3. By a Letter of Licence, wherein the Creditors covenant 
 not to sue or molest the Debtor for a specified time, during which 
 he is to be allowed to carry on his business. 
 
 The above instruments, or agreements, are generally under 
 seal ; if they are not, they must be for a sufficient conside- 
 ration {q). They are binding on each Creditor, upon the ground 
 that the consideration to each is the forbearance of the rest to 
 sue (r). A deed of this nature ceases to be voluntary when the 
 trust is created (5) : and it has been thought, that subsequent 
 Judgment Creditors cannot set aside such deeds under 13 Eliz., 
 though made to defeat them {t) ; but will be preferred, if regis- 
 tered, to Creditors under the deed who execute it subsequently, 
 though the deed itself was prior to such registration (m). 
 
 Deeds of this kind often contain a proviso that they shall be 
 void, if the Creditors do not execute them within a given time. 
 The breach of this stipulation invalidates them at Law (a:) ; time 
 being there of the essence of the contract. But if the Creditors 
 have acted under such a deed, treating it as valid, it is sustain- 
 able in Equity, although they have not signed it, and though the 
 time is past {y) ; and if the trustees have power to extend the 
 time, the Creditors that come in after the stipulated period shall 
 have the benefit of it [z). Yet Vice-Chancellor Wood is reported 
 
 (0) Forsyth on Composition with 
 Creditors (3rd ed.), 2. 
 
 (/)) Forbes v. Leniond, 4 Do G., M. 
 & G. 298. 
 
 (7) Smith's Merc. Law, 726. 
 
 (r) Stcinnian v. Magiuis, 2 Camp. 
 124. 
 
 (i) llarland v. Binks, 15 Q. ]?. 718. 
 
 (0 Estwick V. Caillaud, 5 T. R. 424. 
 
 {n) Langhorne v. Harland, 4 W. R. 
 696. 
 
 {x) Spottiswoode v. Stockdale, Coop. 
 (.tevip. Eld.) 102. 
 
 {y) Ibid. 
 
 {z) Raworth i-. Parker, 2 Kay & J. 
 163.
 
 CREDITOUS' COMPOSITION DEEDS CLUBS. Q53 
 
 to have said that there was no modern authority for relief after 
 the time (a), and tlie justice of doing so has been questioned (i). 
 
 Courts of Equity allow considerable latitude of construction to Non-executing 
 a deed of this kind, so that although it provides that such Cre- ^'■^'^'""^^• 
 ditors only as seal and deliver it shall have the benefit of it, the 
 Court of Chancery holds that it is not necessary to do so, if the 
 Creditor assent or accede to it (c) ; and the same is the doctrine 
 at Law, whether the trust be onerous or not : the assent of the 
 grantee is to be presumed (d). Any person taking under a deed, 
 having notice of it, and acting under it, although he does not 
 execute it, is entitled to the benefit of it (e). The principle of 
 the rule is, that if the Creditor puts himself in the situation of 
 having its benefit, he must also bear its obligations (/). 
 
 If the Creditor be prevented by accident from executing within 
 the stipulated time, that will make a diflPerence (^) ; but not, if he 
 sets up a claim, e.g., a judgment {h), or a mortgage, adverse to 
 the deed. It is inconsistent with the intention that a Creditor 
 having a security for his debt should be allowed first to get all 
 that he can by means of his security, and then to come in under 
 the deed (i). 
 
 Though under seal, the Insolvent Debtors Acts, 1 &: 2 Vict. Composition 
 c. 110, s. 59, and 7 & 8 Vict. c. 96, s. 19, invalidate such deeds, Svems. 
 if voluntary, as against the Provisional and Creditors' Assignees 
 (both at Law and in Equity) if made, — as regards Debtors within 
 1 & 2 Vict., — within three months before their imprisonment (k), 
 or at any time, if made with intent of petitioning for their dis- 
 charge (/) ; or, as regards Debtors within 7& 8 Vict., if made within 
 three months and with the view of a petition for protection (???). 
 Such deeds are also void, if made by Companies within the Joint By Joint Stock 
 
 Stock Act, 1856, 1857 (n). Companies. 
 
 Now the remedies of Creditors under the above non-statutory Remedies of 
 arrangements will be, in Equity, if the terms of the deed are, as ^^^''''°''^- 
 they generally are, favourable to them, either specifically to per- 
 form the agreement, if it remain in fieri [o), or, if executed and 
 reduced into a deed, to establish the trusts thereof against the 
 
 (a) Ibid. 170. (/,) lbid;Gouldi-. Robertson, 4 DeG, 
 
 (/>) Collins V. Reece, 1 Coll. G78. & S. 509. 
 
 (c) 2 Kay & J. 169. (i) Bush v. Shipman, 14 Sim. 243. 
 
 (rf) Siggersw.Evans, IJur., N.S. 853. (A) 1 & 2 Vict. c. 110, s. 59. 
 
 (e) Nicholson v. Tutin, 2 K. & J. 22. (/) Ibid. 
 
 (/) Forbes y. Limond, 4 De G., M. & (;«) 7 & 8 Vict. c. 96, s. 19. 
 
 G. 315. («) 19 & 20 Vict. c. 47, s. 76. 
 
 (^) Watson V. Knight, 19 Beav. 372. (o) Pollen v. Huband, 1 P. Wms. 751,
 
 254 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Of Debtor. 
 
 Where Deed 
 is irrevocable 
 
 trustees, either to compel them to perform the trust, or to 
 restrain them from doing any act in breach of it, and for the ap- 
 pointment of a Receiver {p). 
 
 Whilst, on the other hand, the Debtor may (for deeds of this 
 nature are generally of m.utual benefit) not only obtain at Law- 
 damages for breach of the agreement, but a specific performance 
 in Equity {q) ; or may (if the circumstances of the case admit of 
 it, and the effect of the deed be prejudicial to him) seek to get rid 
 of it, by setting it aside in Equity. In the latter case the question 
 will resolve itself generally into this, whether the deed is revo- 
 cable at the Debtor's will. This it will not be, if it can be proved 
 to have been communicated to the Creditors at the time, or 
 perhaps even subsequently (r) ; although it has been said, it 
 " would be remote from the contemplation of the Debtor, if the 
 Creditor discovering the transaction could fasten upon the 
 property, and invest himself with the character of a cestui que 
 trust" (s). But a trust deed to which no Creditor is a party, and 
 which is not made by agreement with any Creditor, is revocable. 
 A contingent reversionary interest of the Debtor may be as- 
 signed (t). 
 
 The deed is revocable if not communicated to the Creditors, 
 and if they are not privy to it ; if in fact the relation of trustee 
 and cestui que trust be not established (u), and the Creditors 
 not put in such a position that their rights may have been 
 altered (.r). 
 Traders' Com- As to insolvents who are traders, but not adjudged bankrupt, 
 a deed or memorandum of arrangement of their estate, signed by 
 six-sevenths in number and value of Creditors to 10/., binds 
 all, and is good, notwithstanding a prior or subsequent act of 
 Bankruptcy. Such a deed, however, shall not bind any Cre- 
 ditor who has not signed, till after three months after notice 
 from the Debtor to him of the deed and suspension of payment. 
 But if the Court of Bankruptcy certify that such deed has been 
 duly signed, Ci'editors who have not signed may be bound within 
 that time if they have had fourteen days' notice of the application 
 to the Court (?/) ; and private ordinary partnerships may make 
 similar arrangements. 
 
 Where not. 
 
 position 
 Deed. 
 
 (/)) Ivison V. Gassiott, 3 De G., M. & 
 G. 958. 
 
 (q) 1 P. Wms. 751. 
 
 (r) 1 Hayes on Conveyancing, 455 
 (5th ed.) 
 
 (s) Bill V. Cureton, 2 M. & K. 503. 
 
 {t) 3 De G., M. & G. 958. 
 
 (u) Harland v. Binks, 15 Q. B. 718. 
 
 (.i) Ibid. 721. 
 
 ()/) 12 & 13 Vict. c. 106, ss. 224, 225.
 
 creditors' composition deeds — CLUBS. 255 
 
 The 7 & 8 Vict. c. 70, has facihtated arrangements of the Statutory Com- 
 description we are considering. It authorizes insolvents, whether 
 in actual custody or not (z), to petition the Court of Bankruptcy 
 — (whose jurisdiction in this particular is not transferred by 10 
 
 6 11 Vict. c. 102, to the Insolvency or new County Courts)— to 
 carry into effect any proposals for the compromise or payment 
 of their debts. The Commissioner may examine the petitioner 
 and any Creditor, and, if no fraud exists, convene a meeting of 
 Creditors (a), at which meeting, if a majority in number and value 
 of Creditors above 201., or nine-tenths in number or nine-tenths 
 in value assent, the Commissioner shall convene a second meet- 
 ing {b), at which, if three-fifths in number and value of Creditors 
 over 20/., or nine-tenths in number or nine-tenths in value, re- 
 solve to adopt the first agreement, the resolution shall bind all 
 Creditors at the date of the petition having notice of the meet- 
 ings ; provided that it be confirmed by a Commissioner, and that 
 one-third of the Creditors in number and value were present at 
 the second meeting (c). 
 
 It would seem that ordinary partnerships, wholly unincor- 
 porate, may make non-statutory arrangements with their Credi- 
 tors, as sole Debtors may ; but not statutory arrangements under 
 
 7 & 8 Vict. c. 70, which contemplates only insolvents, of which 
 there cannot be a plurality. 
 
 Societies, as Clubs, which are not constituted for purposes of Clubs, 
 profit, are not partnerships either in the view of Courts of Law(c?) 
 or Equity (e) ; but the Law which governs them is that of prin- 
 cipal and agent. But where Clubs, as the London Clubs gene- 
 rally are, are conducted on ready money principles, that is to 
 say, by means of subscriptions and ready money payments, the 
 Creditors who do work for or supply goods to the Club, upon 
 the order of the Committee or a Committee-man, are considered 
 as giving credit to the fund so created, and therefore the general 
 members of the Club are not individually liable for the debts, for 
 the Committee have no power to pledge the personal credit of 
 the members (/). 
 
 The question is one not of partnership, but of principal and 
 agent (^), whether the member proceeded against authorized the 
 
 (a) 23 & 24 Vict. c. 147, s. 1. (e) Re St. James's Club, 2 De G., 
 
 (a) Sect. 2. M. & G. 383. 
 
 (6) Ibid. s. 4. (/) 2 M. & W. 187. 
 
 (c) Ibid. ss. 5, 6. (g) Ibid, 
 
 (rf) Fleinyng«;.Hector,2M.&W.I72. 
 
 r8
 
 256 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 Ordering Com- 
 mittee-man. 
 
 Contribution. 
 
 Power of 
 majority. 
 
 Not within 
 W.-U. Acts, 
 1848, 1849, 
 
 Promoters of 
 Company. 
 
 Inter se. 
 
 creation of the debt ; which, ex hypothesi, he could not do, pay- 
 ments being by the rules of the Club ready money ones ; and it 
 being tlie Committee's duty either to pay ready money, or not to 
 enter into any contract till they had money in hand (A). 
 
 But any Committee-man giving the order, or concurring in it, 
 is liable, unless the Creditor appears to have given credit to the 
 ordering member only {i). 
 
 One Committee-man may sue another at Law for contribution, 
 upon the implied contract that the one who pays the whole of 
 what all are jointly liable to shall be reimbursed, if the contract 
 be collateral to the partnership or quasi-partnership, and irre- 
 spective of the state of the accounts between the parties ( ;). 
 
 The majority of the members of a Club may, it should seem, 
 bind the minority to the adoption of acts consistent with the 
 original object, such as the due management of the Club ; so as 
 to make the Club fund liable to debts contracted in the course of 
 such acts ; but not if the acts are at variance with the constitu- 
 tion or objects of the Club {k). 
 
 A Club is not an "Association" within the Winding-up Acts, 
 1848, 1849 (Z); but a member may, if it is broken up, whilst he 
 is one, sue in Equity to have its assets administered, and for his 
 share of its effects im). 
 
 An intended association announced by prospectus — e. g., a 
 Railway Company — is not a partnership {n), nor does member- 
 ship therein confer any authority on the body or its members to 
 bind their co-committee-men (o), much less the other subscribers 
 to the undertaking, as in ordinary partnerships it would. In 
 order to establish the liability of the committee-man to third par- 
 ties, he must, as in Clubs, either personally or by his agent at 
 the time actually authorized in that behalf, have contracted with 
 such parties, or knowingly ratified a contract previously entered 
 into by a person assuming to act on his behalf ( p). 
 
 Co-promoters, however, are so far members of one body, 
 and therefore partners, that no one of them can recover from 
 another, or from the subscribers generally, for services rendered 
 by him to the Company, in pursuance of an alleged contract 
 
 (/i) 2M. & W. 185. 
 
 (i) Delauney v. Strickland, 2 Stark. 
 416. 
 
 {j) Boulter v. Peplow, 9 C. B. 493. 
 
 (A) Collyer on Partn. 129, n. (/). 
 
 (/) Re St. James's Club, 2 Do G., 
 M. & G. 383. 
 
 {m) Ibid. 387. 
 
 {n) Ileynell v. Lewis, 4 Railw. Cas. 
 351, 
 
 (o) Ibid. 
 
 {p) Nevins v. Henderson, 5 Railw. 
 Cas. 684,
 
 creditors' composition deeds— clubs. 
 
 257 
 
 between himself and his co-committeeman (7). Baron Alderson 
 said it was the case of Holmes v. Higgins over again (r) ; and 
 that was decided against the plaintiff on the ground that he was 
 a co-partner with the defendant [s). 
 
 Whether a managing committee, appointed by the principal Sub-Com- 
 
 , n , 1 . 1 .1 1- 1 1 mittee. 
 
 committee, are the agents of the latter, so as to make them liable 
 
 to third parties, depends on the document by which they are 
 appointed {t). And the same Law that applies to the debts of 
 Clubs applies to all those other numerous bodies of a philan- 
 thropic, scientific or religious character, which prevail at the 
 present day, managed by a committee, but not entering into the 
 definition of partnership. 
 
 Section 4. 
 
 Femes Covertes — Infants 
 
 1. Femes Covertes. 
 
 (i.) Creditors. 
 At Law. 
 
 During Coverture. 
 After death of Wife. 
 Of Husband. 
 In Equity. 
 
 Equity to a Settlement. 
 Includes Children. 
 Husband's Assignees. 
 NoJi-anticipation. 
 (ii.) Debtors. 
 At Law. 
 
 During Coverture. 
 Agency of Wife. 
 Deeds of Separation. 
 Marriage during Action. 
 In Equity. 
 
 Specialties of Wife. 
 Simple Contracts. 
 Verbal Engagements. 
 Power of Appointment. 
 
 2. Infants. 
 
 (i.) Debtors. 
 Necessaries. 
 
 -Non- Compotes — Aliens. 
 
 Ratification. 
 
 Father, S^-c, where liable. 
 How sued at Law. 
 In Equity. 
 (ii.) Creditors. 
 At Law. 
 
 In County Courts. 
 In Equity. 
 
 3. Non- Compotes. 
 (i.) Debtors. 
 
 Simple Contracts. 
 Necessaries. 
 Specialties. 
 Hovi sued at Law, 
 In Equity. 
 (ii.) Creditors. 
 At Law. 
 In Equity. 
 
 4. Aliens. 
 
 (i.) Creditors. 
 Friends. 
 Enemies. 
 (ii.) Debtors. 
 Naturalization, 
 Denizens. 
 
 If the debt (including rent due) (u) accrued to the wife dum sola, l- 
 
 . Feme coverte. 
 (or subsequently, if the contract was prior, to marriage,) then if 
 
 she marries before action, she and her husband must both sue ; 
 
 (ii.) 
 
 and the action abates by her death before judgment (y); if she Creditor 
 
 ((/) Wilson V. Viscount Curzon, 15 
 M. & W. 532. 
 (»•) Ibid. 53k 
 (s) 1 B. & Cr. 1h 
 
 (t) Wordswortb's Railway and other 
 Companies (6th ed.), 119, 
 (w) Broom on Parties, 82. 
 (v) 6 B. & Cr. 253, 
 
 S
 
 258 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 At Law. 
 
 During 
 coverture. 
 
 After death 
 of wife. 
 
 After death of 
 husband. 
 
 marries pending suit, the marriage does not abate it, but she may 
 proceed with it alone to judgment (u). 
 
 But a Bill or Note, payable to the wife dum sola, maybe sued 
 on by the husband alone (?j). 
 
 If the debt be a legal debt, accruing to the wife during 
 marriage, (i. e., by bequest, settlement, or gift direct to her, and 
 not to trustees for her), or accrue due to the husband and wife 
 during coverture (w), — or to the wife as executrix or administra- 
 trix, and he alters the nature of it (.r) — or if the action be on a 
 Judgm.ent recovered by both (//), — the husband may, subject to 
 the. following exceptions, elect to sue at Law alone or jointly (2'). 
 
 These exceptions are those of wages earned, work done, 
 goods sold, and profits of business carried on by her during 
 coverture, in which cases the husband imist sue alone (a). 
 
 In the event of the marriage being void, or of a total divorce, 
 or if the husband be cw'diter mortuns, or an alien enemy, the wife 
 may sue alone. 
 
 So, if the wife has been "judicially separated;" provided that 
 if the husband has not paid any alimony decreed, he shall be 
 liable for necessaries supplied to her (b). 
 
 Of course, for debts contracted by the husband, either before 
 marriage or after, he may sue alone ; indeed, the joinder of the 
 wife would be improper. 
 
 After the death of the wife, the husband surviving, and taking 
 out administration to her, may sue as administrator for debts due 
 to her before, or accrued to her during marriage, which he may 
 not previously have done anything towards reducing into pos- 
 session (c). To constitute a sufficient reduction into possession, 
 he must have either received the money, or obtained Judgment 
 in an action for it (ri). The intention to reduce, evidenced by the 
 mere bringing of the action, is not enough (e). So, as to debts due 
 to them both during coverture, as a bond or promissory note to them 
 jointly, he may sue alone (/) ; for the right of action survives. 
 
 After the death of the husband, the wife surviving may, by her 
 title of survivorship, sue alone on debts due either to her dum sola, 
 or to her and her husband jointly, or to her alone, during cover- 
 ture, if he has not reduced them into possession before his 
 
 (m) C. L. p. Act, 1852, s. Ml. 
 
 (v) Rop. H. & W. 214. 
 
 (w) C. L. P. Act, 1852, s. 141. 
 
 (x) Wms. Exors. 870. 
 
 (y) 1 Selw. N. P. (12th ed.) 319. 
 
 («) 2 Maule & Selw. 396. 
 
 («) Broom on Parties, 72. 
 
 (b) 20 & 21 Vict. c. 85, s. 26. 
 
 (c) Wms. Exors. 778. 
 
 (d) 1 Rop. H. & W. 208, 2nd ed. 
 
 (e) Ibid. 
 
 (/) Wms. Exors. 870.
 
 FEMES COVERTKS — INFANTS — NON-COMPOTES — ALIENS. 259 
 
 death (g), and may continue actions begun by both ; which do 
 not abate by the death (//.). 
 
 Where the wife dies during a suit in Equity to recover a debt in Equity. 
 due to her duvi sola, the husband may continue it, having first 
 taken out administration to her (i), the debt not being yet reduced 
 into possession. 
 
 If the husband die during the suit, the cause of suit equally 
 survives to the wife, who may continue it alone without obtaining 
 an order to revive (j), or drop it without costs (k). 
 
 If the debt of the wife be a legal debt, and the husband can 
 come at it without the aid of Equity, the Court of Chancery will 
 not interfere to prevent him, and he may very properly sue for 
 it at Law, the Court of Chancery not meddling with the legal 
 question (Z), though perhaps it might interfere at the wife's in- 
 stance, to stay execution on a Judgment so obtained (w). So, if Equity to 
 the debt be an equitable chose in action of the wife, and the hus- s^"'^'"*^"^- 
 band can, as is generally the case, obtain payment of it from the 
 executor or trustee, he is perfectly at liberty to do so without 
 any obligation to make a settlement out of it on his wife, (unless 
 the wife has already filed her bill in Chancery,) and may give a 
 valid receipt to the executor or trustee for it, — thei'eby, in effect, 
 reducing it into possession. But if he requires the assistance of 
 the Court of Chancery to enable him to recover or receive it, — 
 and it is a fund immediately distributable, not reversionary (n), — 
 the Court will make it part of the terms of allowing him to do so, 
 that he settle a proportionate part thereout (if there is no settle- 
 ment already existing), generally one half(o), upon the wife: 
 but if there be an adequate settlement already, that will bar her 
 Equity {p) to a decree. This right of a wife is called her Equity 
 to a settlement, deduced originally, where the husband sued, from 
 the maxim of Equity, that " he who seeks Equity must do Equity," 
 and being subsequently extended to suits by the trustees and wife, 
 (probably from the necessity of the Court administering the Trust,) 
 whether the husband thought proper to sue or not(q). 
 
 But if she die before a decree is made in the suit, her Equity, 
 and through it her children's right (r), is gone, and it wall then 
 
 (g) Ibid. 754, 756. (n) Osborn v. Mora:an, 9 Hare, 435. 
 
 (A) C. L. P. Act, 1852, s. 136. (o) Jewson v. Moulson, 2 Atk. 423. 
 
 (i) 1 Rop. H. & W. 205. (p) 1 W. & Tud. L. C. 287. 
 
 (j) Smith's Ch. Pr. (1857), 726. (9) Osborn v. Morgan, 9 Hare, 43k 
 
 (A) Ibid. (r) De la Garde v. Lempriere, 6 
 
 (0 Jewson V. Moulson, 2 Atk. 419. Beav, 344. 
 
 (m) Ibid. 
 
 S2
 
 260 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 be decreed entire to the husband surviving. She may also waive 
 the right ; though not after once insisting on it (r). 
 Includes The children are generally included in the settlement, which 
 
 children. ^"ij ^^ carried into effect for their benefit, should she die after 
 
 the decree. 
 Husband's This right of the wife will prevail, whether her interest in the 
 
 assignees. fund IS for life only or an absolute one, against her husband's 
 
 Bankruptcy and Insolvency assignees (s), who are put only in 
 his place (t) ; although if it be a life interest only it will not 
 prevail against his assignees for value, though he deserts her(M). 
 However, if the husband die before his assignees, particular (u) 
 or general {x), have got possession of the fund, the wife's right by 
 survivorship will prevail against them. 
 Non-anticipa- Jf the debt be settled, as it may be, to her separate use, a con- 
 dition restraining her from disposing of it by anticipation may be 
 inserted, and will be upheld, so that though whilst she is, or 
 as often as she becomes by widowhood, a. feme sole, the absolute 
 control of it will belong to her, she has no further power over 
 it during coverture, than that of receiving the income or interest 
 of it ( ?/). " Equity making her the owner of it, and enabling her 
 as a married woman to aliene, may limit her power over it" (z). 
 (Ji-) For all debts contracted by the wife dum sola, the husband 
 
 FgiTIG CO VGrtG 
 
 debtor. alone is liable at Law, the wife's personal existence and there- 
 
 At Law. with her liability being merged at Law during the marriage (a), 
 
 although she should be joined with him as a co-defendant (b). 
 Agency of The Law generally disables a wife from making a contract or 
 
 incurring a debt, so as to bind the husband, without his express 
 authority or concurrence. This authority however it implies, 
 where they cohabit, and even where he obliges her to leave him 
 by his bad behaviour, in the case of necessaries ordered by 
 her ; the more so, if she has been in the habit of purchasing, by 
 his permission, articles for the use of the house and family (c). 
 She is at liberty to pledge his credit for what is strictly necessary 
 for her support. But this implication extends no further than 
 necessaries, though they cohabit (d) ; and only where the credit 
 
 (r) Whittem v. Sawyer, 1 Beav. 593. (y) Tullet v. Armstrong, 4 M. & Cr. 
 
 (i) Sturgis V. Champneys, 5 M. & 390. 
 
 Cr. 97. (z) Brandon v. Robinson, 18 Ves.433. 
 
 (0 Aldrich v. Cooper, 8 Ves. 382. (a) 2 Rop. H. & W. 73 (2nd ed.) 
 
 («) Tidd V. Lister, 10 Hare, 140; (i) Archb. Pr. 1175. 
 
 3 De G., M. & G. 857. (c) 2 Rop. H. & W. 109. 
 
 (v) Pierce V. Thornley, 2 Sim. 167. (d) Per Bayley, J., Montague v. Be- 
 
 (x) Ashby v. Ashby, 1 Coll. C. C. 553. nedict, 3 B. & C. 635. 
 
 wife.
 
 FEME COVERTES — INFANTS— NOxV-COMPOTES— ALIENS. '^"^ 
 
 was given to him (e) ; and the impUed assent of the husband may 
 be rebutted by contrary evidence. What are to be considered as 
 necessaries is a question for the jury. Where the debts con- 
 tracted by her are not for necessaries, still, if the articles purchased 
 come to his or her use with his knowledge and permission, or he 
 allows the wife to retain and enjoy them, the law will consider her 
 as his agent, and imply a promise on his part to pay for them. 
 
 Whether the acts were done with the express authority of the 
 husband is for the jury; but whether it is a case of implied 
 authority, is a question of Law. 
 
 Immediate gifts, as of a debt, to a wife by her husband, or by 
 a wife to her husband, are void at Common Law, on account of 
 their supposed unity of person (/) ; but where made bona fide, are 
 good in Equity f^). 
 
 If the husband and wife separate, a clause is usually inserted Deeds of 
 in the Deed of Separation, by way of covenant, for the indem- ^ ^l''^'^^^"'"* 
 nification of the husband by some friend of the wife from the 
 debts she may contract. If there be no such covenant, a settle- 
 ment made by him on her upon such separation is voluntary, and 
 liable to be set aside by his Creditors. 
 
 In an action for a debt contracted subsequently to the mar- 
 riage, the wife cannot be joined as a defendant (/<)• 
 
 The wife is suahle alone, in the same exceptional cases as she 
 
 may sue alone (i). 
 
 Marriage, during an action against her, does not abate the pro- Marriage dur- 
 ceedings, whether in error or not ; but they may, notwithstand- '"^ ^''''''"' 
 ing, be proceeded with to judgment {j). 
 
 In Equity, if she has a separate estate, the Creditor may file a Specialty of 
 1-" ,.,,/.! .i»i feme coverte. 
 
 bill for a declaration that it is liable for the payment ol her en- 
 gagements, whether under seal or not, and the husband, or the 
 trustees (if any), would be necessary parties {k). 
 
 Marriage, during suit, does not abate \i{l), though the husband 
 must be named in the subsequent proceedings. 
 
 It has been frequently held that the separate estate of a /me f^^^Pj^ '""■ 
 coverte is liable to pay her bond (//«), although it be given to her 
 
 (e) Metcalfe v. Shaw, 3 Campb. 22. (/c) Murray v. Barlee, 3 M. & K. 
 
 (/) 1 Rop. H. & W. 53. 225 ; 15 & 16 Vict, c. 86. 
 
 (g) Ibid. vol. 2, p. 131. (/) 1 Dan. Ch. Pr. (Headl.) 143. 
 
 Qi) 4 Vin. Abr. 93. ("0 Lillia v. Airey, 1 Ves. jua. 277 ; 
 
 (i) Ante, p. 258. Norton v. Turvill, 2 P. Wms. 144 ; 
 
 {j) C. L. P. Act, 1852, s. 141. Peacock v. Monk, 2 Ves. sen. 193. 
 
 S 3
 
 ^2 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 husband (??), or although she have joined in it with him or with a 
 stranger (o). And the same is Law as to Bills of Exchange and 
 Promissory Notes accepted and given by a. feme coverte, and bills 
 of costs of her solicitor. Lord Brougham has put the reason 
 upon which Courts of Equity have proceeded, in declaring her 
 liability, upon this, that the acts of executing the bond or making 
 or accepting a Note or Bill would be nugatory, if done by her 
 without any reference to her separate estate, and therefore she 
 must be intended to have designed a charge on that estate, since 
 in no other way could the instrument have any valid operation (p). 
 But Lord Cottenham has put it rather on this, that " the sepa- 
 rate property of a married woman being a creation of Equity, it 
 follows, that if she has a power to deal with it, she has the other 
 powers incident to it, e.g., that of contracting debts; and inasmuch 
 as her Creditors have not the means at Law of compelling payment, 
 a Court of Equity takes upon itself to give effect to them" (r/). 
 Verbal engage- There seems, however, to have been as yet no positive decision 
 whether the principle of Courts of Equity, by which she is 
 constituted a feme sole as to her separate property, embraces 
 her verbal engagements, or cases of common assumpsit {r) ; 
 "though it seems strange, and an artificial distinction not recog- 
 nized in any other case, that there should be any difference 
 between a contract in writing, where no statute requires it to be 
 in writing, and a verbal promise to pay" (s). It is very probable 
 that when that question arises for decision, it will be decided 
 in the affirmative (t). 
 Power of ap- Jn the case last referred to, it was decided that a. feme coverte, 
 
 pointment. having a separate estate for life in personalty, with a general 
 power of appointment by will, does not, by exercising the 
 power, make the property applicable to the payment of such 
 debts, or engagements in the nature of debts, as would be 
 charges on her separate estate ; and that di feme coverte is not a 
 feme sole with respect to a general power of appointment of 
 which she is donee, which, " though in one point it bears a 
 resemblance to a trust for her separate estate, viz., in that it 
 enables her to dispose of property independently of her husband, 
 is not, on that account, the same thing with it" (m). But where a 
 
 («) Grigby v. Cox, 1 Ves. sen. 517. Drewry, 183. 
 
 (o) Healley v. Thomas, 15 Ves. 596 ; («) Owens v. Dickenson, Cr. & Ph. 53, 
 
 Standford v. Marshall, 2 Atk. C9. (/) Vaughan v. Vanderstegen, 2 
 
 {p) Murray v. Barlee, 3 M. & K. 224. Drewry, 183. 
 (9) Owens f. Dickenson, Cr.& Ph. 54. (u) 2 Drewry, 184. 
 
 (r) Vaughan v. Vanderstegen, 2
 
 FEMES COVERTES — INFANTS - NON-COMPOTES — ALIENS. 263 
 
 feme coverte, with a general power of appointing realty, has 
 charged her debts upon it by will, her general Creditors have 
 been let in (x). 
 
 An infant can make no binding contract, unless it be to pay 2. 
 for his necessaries (?/). What will be such, affords considerable l"'*"^- 
 room for variance of opinion, and will depend on the estimate Debtor! 
 formed by the particular jury (^r), guided by the Judge, who will Necessaries, 
 try the question ; but much will depend on the particular station 
 in life of the infant (a). 
 
 A debt contracted in infancy is a good consideration to sup- Ratification. 
 port a promise to pay made at full age (Z»). The infant must 
 however ratify his contract, when adult, in writing (c). 
 
 A father (or guardian) who gives no authority, and enters into Father, &c., 
 no contract for the debt, is no more liable for goods (even though 
 necessaries), — except by proceedings under the Poor Law A.ct{d) 
 — supplied to his children or wards, than a stranger is (e). 
 
 If they were aware of the debt, and made no objection to the 
 order, and did not prevent a further supply of articles, they will 
 be responsible as principals in the transaction {f). In such a 
 case either the parent (or guardian) or child (or ward) may be 
 sued indifferently for the necessaries. 
 
 An infant may grant a lease, if beneficial or necessary {g). Lessor. 
 
 An infant purchaser of Railway shares is not liable for calls Shareholder, 
 during his infancy, if he repudiates the shares within a reason- 
 able time after his majority (/<). But if he does not, he is liable, 
 even though he do not ratify them, when of full age {i). 
 
 Where liable, the infant can defend at Law and appear by How he 
 guardian only {h). His appearance may be enforced by a Judge's ^^^'^"*^^- 
 order that, unless he appear within a given time, the plaintiff may At Law. 
 assign John Doe for his guardian (/). 
 
 The execution against an infant is the same as in ordinary 
 cases im). 
 
 He may be arrested on a ca. sa.; and outlawed, if above, or (if 
 a female) under, twelve (n). 
 
 (x) Owens u. Dickenson, Cr. & Ph. (/) Law v. Wilkin, 6 Ad. & Ell. 718. 
 
 53 (see post, Part. II). {g) Chitty on Contracts, 139. 
 
 (f/) Chitty on Contracts, 135, 6th ed. (/«) Dublin and Wicklow Railway 
 
 {z) Chambers on Infancy, 398. Company v. Black, 8 Exch. 181. 
 
 (a) Ibid. (j) 10 Q. B. 935. 
 
 (6) Ibid. 436. ^ (/r) Archb. Pr. 1170. 
 
 (c) 9 Geo. 4, c. 14, s. 5. ' \l) Ibid. 
 
 Id) 43 Eliz. c. 2, s. 7. {m) Ibid. 1171. 
 
 (e) Mortiniore v. Wright, 6 M. & W. («) Ibid. 1172. 
 482. 
 
 S 4
 
 264 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 In Equity. 
 
 (ii.) 
 Creditor. 
 
 At Law. 
 
 In County 
 Court. 
 
 In Equity. 
 
 Two suits. 
 
 3. 
 
 Non-Compos. 
 
 (i-) 
 Debtor. 
 
 Simple 
 contract. 
 
 An infant cannot, in Equity, defend a suit until a guardian ad 
 litem is appointed ; which is done by the Court, on the applica- 
 tion of the plaintiff, ordering one of the Solicitors of the Court 
 to be assigned guardian ad litem of such defendant ; by whom 
 he may appear and answer, or appear or answer, and defend [q). 
 
 An infant may sue on a contract for his benefit, if in part 
 executed (r), and therefore for a debt. 
 
 He must sue at Law by guardian or prochein amy (a), and 
 execution will be the same as in ordinary cases. 
 
 Minors may sue in the New County Courts for any sum not 
 exceeding 201. due for wages, or piece-work, or for work as a 
 servant, as if they were adults {t). 
 
 In Equity an infant must sue by his next friend, usually his 
 nearest relation (u), who must in writing authorize the use of his 
 name (x), and will not be removed because he is related to the 
 defendant (?/), but must not be himself a defendant (^r). 
 
 Where two suits are instituted on behalf of the same infant 
 by different next friends, the Court will, if no decree has been 
 made in either (a), direct an inquiry, which is most for his be- 
 nefit (Z>); and after the report made, will stay proceedings in the 
 defeated suit(c). 
 
 An Idiot, Lunatic, and a person of unsound mind, may be 
 ranged under the generic, and most legal {d), term, " non compos 
 mentis." 
 
 Consent is the basis of civil contracts ; therefore a contract, 
 and a debt as the result of one, by an idiot or lunatic, or by one 
 of unsound mind at the time, is void fas having been procured by 
 fraud), if any imposition appear to have been practised on him, 
 or any advantage taken of his infirmity by the other contracting 
 parties. But if it bears on the face of it no symptoms of his 
 infirmity or of imposition, but appears to be a fair and honest 
 contract on the part of the Creditor, it will be enforced like any 
 other contract (e). Thus, an action for goods sold and delivered 
 cannot be defeated by showing the defendant had been found 
 lunatic by inquisition, for the Law will not allow his infirmity to 
 be made an instrument of fraud on third parties dealing with 
 
 (q) 7 Consol. Ord. r. 3. 
 
 (r) Warwick v. Bruce, 2 M. & S. 208. 
 
 (s) Archb. Pr. 1166. 
 
 (0 9 & 10 Vict. c. 95, s. 64. 
 
 ((/) Ayckb. Ch. Pr. 505. 
 
 (t) 15 & 16 Vict, c, 86, s. 11, 
 
 ((/) Ayckb. Ch. Pr. 505. 
 
 (z) Ibid. 
 
 (a) Taylor v. Oldham, Jac. 527. 
 
 (b) 3 Atk. 602. 
 
 ' (c) Westby v. Westby, 16 L. 
 (Chancery), 484. 
 
 {d) Co. Litt. 246 a. 
 
 (e) Addison on Contracts, 90,
 
 FEMES COVERTES- INFANTS — NON-COMPOTES — ALIENS. 265 
 
 him ill good faith (/). An idiot, or lunatic, or person of unsound 
 
 mind, is liable for necessaries supplied to him or to his wife {g). 
 
 And so, for goods supplied to him suitable to his degree, pro- Necessaries. 
 
 vided that the supply was bona fide, e.g., if the Creditor, at the 
 
 time of the supply, was ignorant of the state of his mind (h) : in 
 
 both the above cases, the Courts of Law implying a contract on 
 
 the Debtor's part. But a lunatic cannot bind himself to a spe- Specialty. 
 
 cialty, unless it can be shown to have been executed by him 
 
 during a lucid interval. 
 
 Debts due from one found by inquisition idiot, lunatic, or of 
 unsound mind, and incapable of managing his own affairs (i), 
 may, at least if undisputed, be ordered by the Chancellor to be 
 paid out of his estate (A), and are proveable before a Master in 
 Lunacy (/); but his estate shall not be subject to his debts, fur- 
 ther than the same now is by due course of Law (in). 
 
 He cannot commit an act of Bankruptcy ; though he may be 
 made Bankrupt for an act committed by him when sane {n). 
 
 An idiot, made defendant to an action at Law, must appear in How sued at 
 person, and (then) any one who can make a better defence may ^^^• 
 be admitted to defend for him (o). 
 
 A lunatic defends at Law in the same way as other persons. 
 Where no committee has been appointed, any one, as his next 
 friend, may defend the action {p). 
 
 Idiots and lunatics defend suits in Equity by their com- in Equity. 
 mittees, who, by order of Court, on motion of course, are 
 appointed guardians for that purpose ; if there is no committee, 
 or his interest is opposite to that of the idiot or lunatic, an order 
 may be obtained for appointing another person as guardian for 
 defending the suit {q). 
 
 If the defendant be of weak or unsound mind, not found so 
 by inquisition, the Court may assign one of the solicitors of the 
 Court to be his guardian ad litem (r). 
 
 The Solicitor to the Suitors' Fund is the proper person to be 
 assigned guardian ad litem (s). 
 
 A contract made for the benefit of a lunatic is good, — though 
 
 (/) Att.-Gen. v. Parnther, 3 B. C. C. 1853. 
 444. (/«) 16 & 17 Vict. c. 70, s. 146. 
 
 (g) Phill. on Lun. 17; Howard t;. (h) Phill. on Luu. 27. 
 
 Digby, 2 CI. & Finn. GtiS. (o) Arclib. Pr. 1190. 
 
 (h) Bagster y. Earl of Portsmouth, 7 (p) Ibid, and 1191. 
 
 Dowl. & Kyi. G17. (q) Slielford on Lunatics, 557. 
 
 (0 10 & 17 Vict. c. 70, s. 2. (r) 7 Consolid. Gen. Ord. rule 3. 
 
 (/c) Ibid. s. 116. (s) Biddulijh v. Lord Camoys, 9 
 
 (l) 13 Gen. Ord. (in Lunacy), Nov. Bcav. 548. 
 
 (ii). 
 Creditor.
 
 266 SPECIALTY AND SIMPLE CONTRACT DEBTS. 
 
 consent, the basis of an agreement, is, of course, equally wanting 
 on his part as where he is the Debtor, — therefore a debt incurred 
 to one lunatic at the time may be sued on by him or his com- 
 mittee. Debts due to one, sane at the time of contract but after- 
 wards becoming lunatic, may be sued on by his committee. 
 
 At Law. An action at Law may be in the name of a non compos, but 
 
 must be prosecuted by a sane person (^); if an idiot, he must appear 
 in person, and then any one who prays to be admitted as his 
 friend to sue for him may be so admitted. If a lunatic, he sues 
 in the same manner as any other person : if of age, either in per- 
 son or by attorney; if under age, hy prochein amy or guardian {u). 
 The absence of the special permission of the Lord Chancellor 
 (or Lords Justices) to an action at Law, or proceeding in the 
 Ecclesiastical Courts, by or on behalf of one found lunatic by in- 
 quisition, is no bar to it {x). 
 
 In Equity. A nou compos may not file a bill in Chancery •without the 
 
 intervention of a sane person : if not found so by inquisition, it 
 may be filed in his name by any person professing to be his next 
 friend (y) : if found so by inquisition, he sues by the committee 
 of his estate : he should, if a lunatic, be made a party, for he may 
 recover ; but if he is an idiot, he is not a necessary party (z). If 
 the imbecility supervened after the commencement of the suit, 
 proceedings will not be stayed on that ground (a). If he was a 
 lunatic by inquisition at the commencement of the suit, it can be 
 commenced only by leave of the Lord Chancellor (b), or Lords 
 Justices (c). 
 4. An alien may be sufficiently defined as one whose paternal 
 
 grandfather, or father, either were not natural-born subjects {i.e., 
 (i) . born within the King's dominions) (d), or who, being so, were, at 
 
 the birth of the child, attainted of treason, (or liable to the penalties 
 of treason or felony in case of returning to the United Kingdom 
 without licence, , or in the actual service of a prince at enmity with 
 our sovereign ; or as one who, though himself born here, was the 
 child of alien enemies (e). Children born, out of the Queen's 
 dominions, of mothers who are natural-born subjects, though not 
 expressly said to be natural-born subjects, themselves (/), acquire 
 
 {t) Co. Liu. 135 b. (a) Wartnaby w. Wartnaby, 1 Jac.377. 
 
 («) Archb. Pr. 1190. (6) Phill. on Lun. 327. 
 
 {x) Phill. on Lun. 327; 2 Hagg. (c) 16 & 17 Vict. c. 70, s. 2. 
 
 Cons. Ca. 171. (d) Calvin's case, 7 Rep. 18 a. 
 
 (y) Carr v. Boyce, 13 Ir. Eq. Rep. (e) 25 Ed. 3, s. 2 j 7 Ann. c. 5, s. 3 ; 
 
 102. 4 Geo. 2, c. 21 ; 13 Geo. 3, c. 21. 
 
 (z) Woolrycli's case, 1 Ch. Ca. 153. (/) 7 Ann. c. 5, s. 3 ; 4 Geo. 2, c. 21. 
 
 Alien.
 
 FEMES COVERTES — INFANTS — NON-COMPOTES — ALIENS. 267 
 
 the privileges of such as to the power of acquiring realty and 
 personalty, by devise, purchase or inheritance (</•. 
 
 Every alien, subject of a friendly state, resident in this country 
 has the same power of entering into and enforcing personal con- 
 tracts as the natural-born subjects of the realm (h), and may be 
 a trustee of personal estate, and therefore of a debt (i). He can 
 therefore also be a cestui que trust of a debt, though not of land (k). 
 
 But if resident abroad, voluntarily, at the time of action or suit 
 brought, he must give security for costs (but not if he be in this 
 country, though his residence is abroad) ; as also must a subject, 
 if residing permanently abroad (/). But he cannot lawfully enter 
 into or enforce any conti'acts connected with the acquisition and 
 enjoyment of freehold estates, though he seems capable of 
 availing himself of a Judgment Creditor's remedies under 1 & 2 
 Vict. c. llO(m). 
 
 If, after a contract has been made with him, a war breaks out Friend. 
 between his country and this, his right of action on the contract 
 is suspended until the return of peace (w) ; and the Crown may, 
 if it think fit in the interval, lay hands on all his debts, and pre- 
 vent him from putting them in suit even after peace. 
 
 An alien enemy, {i. e., the subject of a state at war with ours at Enumy. 
 the time of the contract entered into), resident abroad, cannot 
 lawfully contract with British subjects, unless he has a licence 
 to trade. Whilst hostilities last, he is absolutely disabled from 
 suing in our Courts of Justice (o), although he may be sued ; 
 and so, of such an alien enemy resident here. So an alien Debtor. 
 friend may be sued here for any debt due by him to a subject or 
 to another alien friend, as a subject may ; but not being entitled 
 to hold lands, or chattels real, except for a term, he is only to that 
 extent liable to an elecjit on a Judgment obtained against him. 
 
 An alien naturalized, and the wife of a naturalized or natural- Naturalization. 
 born subject (p), have all the rights of a natural-born subject, ex- 
 cept such rights as, (in the case of a man,) may be excepted by the 
 Certificate (q) of a Secretary of State. 
 
 And so of a denizen, or one who has obtained Letters Patent Denizen, 
 to make him a subject, either permanently or for a while, except 
 that he cannot take a grant of land from the Crown to himself or 
 to others in trust for him (r). 
 
 (g) 7 & 8 Vict. c. 6G, s. 3. don, 1 Beav. 81.. 
 
 (k) Mitford P. L. (()th cd.), 2(j, n. (n) Addison on Contracts, 73, 4th ed. 
 
 (») 2 Spence Eq. Jur. 32. (o) 1 Bac. Abr. Alien,(D); 3 Mer. 469. 
 
 (k) Burneyv. M'Donald, 15 Sim. 14. (p) 7 Ik 8 Vict. c. 66, ss. 6, 16. 
 
 (/) Archb. Pr. 1327. (,■/) Ibid. s. 8. 
 
 {m) Arguendo, Da Hourmelin v. Shei- (/•) 12 & 13 Will, 3, c. 2.
 
 ( 268 ) 
 
 Part II. 
 
 JUDGMENT, SPECIALTY, AND SIMPLE CONTRACT, DEBTS, 
 AFTER THE DEATH OF THE DEBTOR. 
 
 Book I. 
 
 SOLE DEBTOR. 
 
 CHAPTER I. 
 
 liability of representatives to creditors for debts 
 contracted by the deceased. 
 
 Section 1. 
 Assets. 
 
 Assets classified.- 
 Legal. 
 Equitable. 
 
 Personal. 
 Real. 
 Summary. 
 
 Assets, As soon as a Debtor is dead, whether he be a Debtor by Judg- 
 
 ment, Specialty or Simple Contract, his property becomes 
 Assets, {i. e., sufficient, assez, to make the real or personal repre- 
 sentatives of the deceased chargeable to Creditors and Legatees, 
 so far as such property extends). 
 
 So complete is this liability of property to debts, that though 
 it may be limited to go over on a certain event, e.g , on Bank- 
 ruptcy, it cannot, v^hilst it remains the property of a man. (a), 
 be exempt from his particular or general Creditors, even though 
 it be expressed to be " not grantable, transferable, or otherwise 
 assignable by way of anticipation" {b). 
 
 Classified. This will be the proper place to consider the classification 
 
 which our Law makes of assets, into 
 L Legal. 
 
 2. Equitable. 
 
 3. Personal. 
 
 4. Real. 
 
 The last-named classification, indeed, viz., that into Real and Per- 
 sonal, carries with it pretty well its own meaning — chattels real, 
 however, it is to be observed, being included in personal assets. 
 
 (a) Brandon v. Robinson, 18 Yes. (6) Ibid. ; and Foley v. Burnell, 1 
 
 429. B. C. C. 21 i, n. (2).
 
 ASSETS. 269 
 
 The old writers divide assets into those by descent, or such as 
 are chargeable in the hands of the heir, and assets entre mains, 
 or which are liable in the hands of executors. With regard to 
 the former it may be observed generally, that all realty is now 
 made assets, either in the hands of the heir or devisee. As 
 regards the lattei', the following have been said not to be assets 
 entre mains : — 
 
 Choses in action, until actual recovery and I'eceipt. 
 
 Presentation to a church. 
 
 Chattels come to, and lost by, executor without his default, as 
 sheep or other beasts dying, ships perishing by tempests. 
 
 Goods of which testator was trustee. 
 
 Rent becoming due after the death of a lessor seised in fee (c). 
 
 Money which the testator had power to appoint, but did not. 
 
 A wife's present dieses in action. 
 
 Money for which a factor sold goods of his principal, where 
 he died before payment. 
 
 Money in a box in testator's house, but which really belonged 
 to a Club that met there {d). 
 
 Much difficulty, it must be confessed, exists, in ascertaining Legal. 
 the precise distinction between Legal and Equitable Assets ; and 
 the doctrine of Equity on that subject seems of late to have 
 undergone considerable alteration. The inclination of those 
 Courts now seems to be to construe all Assets, as far as they can. 
 Legal (e). 
 
 Formerly Legal Assets were defined as those species of pro- Mr. J. Story's 
 perty against which legal executioji would issue. In the words definition, 
 of Mr. Justice Story they are "■ such as can be reached, in the 
 hands of an executor or administrator, by a suit at law against 
 him, either by a common judgment, or by a judgment upon a 
 devastavit {f) against him personally" (^). Some assets, how- 
 ever, though properly legal, could not be reached at Law {h). 
 
 Now, hoM^ever, the test of the nature of the Assets would seem 
 to be, whether the property comes to the Executor or Adminis- 
 trator, virtute officii. " The true distinction is," according to vice-Chan- 
 y ice-Chancellor Kindersley ii), " whether a Creditor of the tes- f^"""" Kinders- 
 
 ley's. 
 
 tator, seeking to get paid out of such assets, can obtain payment 
 thereout from a Court of Law." Whatever assets the Court of 
 Law, " in trying the truth of a plea by the executor of plen^ 
 
 (r) Com. Dig. Assets, D. (/) Post, Ch. II. 
 
 (d) Ram on Assets, 239. (g) 1 Eq. Jur. (2iid ed.) s. 551. 
 
 (e) Seen, (a) to Lovegrove !;. Cooper, (/() Ibid. n. (1). 
 
 2 Sm. & G. 273. (f) Cook v. Gregson, 3 Drewry, 549.
 
 •270 LIABILITY OF REPRESENTATIVES TO CREDITORS FOR DEBTS, ETC. 
 
 administravit, would charge him with, must be regarded as 
 Legal Assets. Supposing, however, the (above) distinction to 
 be well founded, there still remains the question, What property, 
 come to the hands of the executor, would a Court of Law con- 
 sider as property to be taken into account as assets, in trying the 
 truth of the plea plene administravit ? I think the general prin- 
 ciple is, that a Court of Law would treat, as assets, every item of 
 property come to the hands of the executor, which he has 
 recovered, or had a right to recover, merely virtute officii, i. e., 
 v/hich he would have had a right to recover, if the testator had 
 merely oppointed him executor, without saying anything about 
 his property, or the application thereof" (y). 
 Equities of Therefore, in the above case, the Vice-Chancellor held an 
 
 Redemption. ]7qyity of Redemption in an equitable sum charged on real estate, 
 and mortgaged by the testator, to be Legal Assets. 
 
 Following his own decision in that case, the same Judge con- 
 siders that an annuity, secured by a settlement, void against 
 Creditors of the settlor by 13 Eliz. c. 5, (and therefore Assets for 
 payment of his debts,) is also Legal Assets {h) ; and declared the 
 question, whether Assets are Legal or Equitable, to depend on 
 tliis, whether, if the case were before a Court of Law, that Court 
 would treat the property as Assets ; if it would, then it is Legal 
 Assets in a Court of Equity (i). 
 
 And Lord Cranworth, when Vice-Chancellor, held the Equity 
 of Redemption of a mortgage in fee to be Legal Assets (k). 
 Definitiors not It may be contended, that the above definitions and criteria 
 satisfactory. ^^.^ ^^^^ ^^^j^g satisfactory. Does the Vice-Chancellor mean 
 that every item of property which the executor can so recover 
 in a Court of Law or Erjuity is such a right as a Court of Law 
 would take into consideration ? Or how could we say what pro- 
 perty a Court of Common Law would, in any given case, " treat 
 as Assets, if it were before them," e. g., in the case of an Equity 
 of Redemption of a mortgage in fee, which, of course, it would 
 not consider property at all ? If the Vice-Chancellor does mean 
 this, then every species of property would be Legal Assets ; and 
 there would not " remain the question," which he put to himself, 
 " What property would a Court of Law consider as property to be 
 taken into account as Assets ?" And such, it must be confessed, 
 seems the natural inference to be deduced from his language, 
 
 (g) Cook V. GrcgsDn, 3 Drcwry, 550. (k) Foster v. Handley, 1 Sim., N. S. 
 
 (/;) Shee V. Frcncli, 3 Drcwry, 716. 200. 
 
 (J) Ibid.
 
 ASSETS. 271 
 
 (since, in tlie case before liini, tlie executor could not have re- 
 covered the Equity of Redemption of tlie equitable sum, except in 
 Equity). And the language in the old cases seems to point the 
 same way; e.g.. En Chancerie quel est veigne as maines V exe- 
 cutor, is defined to be executor's {i. e., legal) assets {I). And 
 again, Si executor recover come executor matters en Chancery, 
 per Equitie, cest chose recover sera assets (m). And again, 
 Si jeo devise que mon executors ve7ideront mon terre si ils vendont 
 ceux deniers ne unque fueront en le testator pur ceo que ils vient 
 avx eux covie executors sera assets; la darien jour fuit adjudge 
 per Cur in banco, que deniers recover per executors en Equitie 
 sera assets (n). 
 
 If the Vice-Chancellor's law is right, the trust of a term, 
 which it was difficult to range under Legal Assets, according to 
 Mr. Justice Story's test, although his Editor so ranges it (o), — 
 and which, with the proceeds thereof, has been decided to be 
 chargeable in Equity (p), though no aufhoritij seems yet to have 
 decided it to be extendible, under 1 & 2 Vict. c. 110 {q), — is, ac- 
 cording to the above reasoning, to be included under that head. 
 
 Mr. Fonblanque has defined Legal Assets to be " whatever Mr. Fon- 
 comes to the executors, or they are entrusted with, as exe- ijlanque's defi- 
 cntors (r) ; and Mr. Justice Story modiiyuig, it would seem, the 
 definition of them above referred to, considers it would be " per- 
 haps more accurate to say, that they are such as come into the 
 hands and power of an executor or administrator, or such as he 
 is entrusted with, at Law, virtute officii, to dispose of in the 
 course of administration. In other words, whatever an executor 
 or administrator takes qua executor or administrator, or in re- 
 spect to his office" (s). 
 
 Mr. Justice Williams considers Legal Assets to be such as are 
 liable to debts in the temporal Courts, by the course of Law, 
 and Equitable, such as are liable only by the help of a Court of 
 Equity; and that the test whether the Assets are Legal or Equit- 
 able, is not whether the executor or administrator, but whether 
 the claimant, can reach them without resortino- to a Court of 
 Equity (/). This, however, seems hardly reconcileable with the 
 
 (/) Harecourt v. Wrexham, Moore's (</) Scott y. Scholey, S East, 467 ; and 
 
 Rep. 858. ante, p. 32. 
 
 (;«) 1 Roll. Rep. 56. {r) Treatise on Equity, vol. 2, p. 401, 
 
 (n) Ibid. (5th ed.) 
 
 (o) Sect. 551, n. (1). («) 1 Eq. Jur. s. 551. 
 
 (/j) Gore V. Bowser, 3 Sm. &- G. 1. {t) Wms. Exors. 1519, 1520.
 
 ^72 
 
 LIABILITY OF REPRESENTATIVES TO CREDITORS FOR DEBTS, ETC. 
 
 Personalty 
 Lesal Assets. 
 
 Equitable 
 Assets, what. 
 Mr. J arm an. 
 
 Mr. Fon- 
 blanque. 
 
 test above suggested by Vice-Chancellor Kindersley, and with 
 the opinion, that though the cestui que trust of a bond must resort 
 to Equity for it, it is Legal Assets (u). 
 
 The above definitions, however true they may be theoretically, 
 seem no certain guide to the practitioner, because they all leave 
 undetermined the question, what that property is which, accord- 
 ing to Mr. Fonblanque, " the executor is entrusted with as 
 executor ;" or which, according to Mr. Justice Story, " he takes 
 in respect of his office, or qua executor." We must therefore 
 descend to particulars. 
 
 The whole personal estate, then, of the deceased, would seem 
 to be legal assets, though bequeathed to his Debtor (x) ; and 
 whether in possession or action, pure, or chattels real ; whether 
 he was possessed of it as cestui que trust or not ( ?/), and whether 
 he has bequeathed it to trustees in trust or not, (for on the death 
 it devolves primarily on the executor and not on the trustee, 
 until the executor has assented to the bequest) (c) — and whether 
 he has charged it with debts or not (because such a charge adds 
 nothing to the primary liability to pay debts, which personalty 
 is always subject to, and has no legal operation) (a), and whether 
 it is the proceeds of the testator's realty directed by the Court 
 to be sold and paid into Court, or remaining in the hands of the 
 executor (&). And all this, although the assets cannot be come 
 at without resort to a Court of Equity (c), and although the 
 testator directs all his debts to be paid out of his real estate 
 pari passu (d). 
 
 The only assets, therefore, which can be Equitable, are 
 Real assets. Mr. Jarraan has defined them as " that portion of 
 the property which is distributable according to the maxims of 
 a Court of Equity" (e). Mr. Fonblanque states "them to be 
 such, either in respect of the deceased's intention (as evidenced 
 by his will) to subject them to the Equitable rule, that all debts 
 are equal foro conscientice, (as where he charges his real estate 
 with them :) or else in respect of the nature of his interest in 
 the property : and either of these conditions will make, them 
 Equitable. Both need not concur. In the first case, however, 
 
 (m) 1 Story Eq. Jur. s. 5r>l, n. (1). 271. 
 
 (x) Wms. Exors. 1174, 
 
 (y) 1 Story Eq. Jur. s. 551, n. (1). 
 
 (2) Dix ?;. Burford, 19 Beav. 409. 
 
 (a) Tlill on Trustees, 3.39. 
 
 (&) Lovcgrove v. Cooper, 2 Sm. & G. ctl.) 
 
 (c) 1 Story Eq. Jur. 447, n. (1). 
 {d) Turner v. Cox, 8 Moo. P.C. 288, 
 318. 
 
 ((•) 2 Jarman on Wills, 524 (2nd
 
 ASSETS. 073 
 
 Hie charge must be for the payment of debts generally: in tlie 
 atter the interest must be a purely Equitable one, not made 
 legal assets by any statute" (/), and (as it should be now added, 
 ^nce Cook v. Gregson) not coming to executors virtute officn{g). 
 Thus a trust of descended realty is legal assets by statute {h) • 
 and realty devised to executors, and charged with debts, is 
 Equitable assets, Courts of Equity considering such realty 
 merely as a trust fund(^): and so, notwithstanding the old autho- 
 rities {j ), a devise that the executors shall sell to pay debts {k). 
 
 A devise of lands to pay debts, or a mere generaj direction by What is a 
 the testator that his debts shall be paid (Z), amounts to a charge of <=l^«;g^«» 
 them upon his realty ; whether with or without the words " fi^-st," 
 or " in the first place" {m), and whether the direction occur in the 
 commencement, or a subsequent part of the will {n), (at least where 
 the will embraces real estate only) (o), and, probably, where it is 
 confined (except by the direction under consideration) to per- 
 sonalty only(p); and even though the direction follow imme- 
 diately after the disposition of the personal estate {q). 
 
 blislieV-- ^''''^P^'''"' '"^ ^^"^ ^^^''^ S-^""''^^ '""^^ se^"^ ^^-ell esta- Exceptions. 
 
 ^ 1. Where in a subsequent part of the will, after a general direc 
 tion to pay debts, a specific fund is appropriated to such payment, 
 and the general charge thereby controlled (r). 
 
 2. Where, without devising lands to his executors, the testator 
 directs his debts to be paid by them (s) 
 
 But a devise to the executor, as such, or in trust, of an 
 equitable estate (0, will charge the realty, though the direction 
 be to htm to pay them (e.) ; though a devise (whether a limited 
 one (^) or in fee) (3/) to one only of several executors, with such 
 a direction, or giving unequal benefits to both (z), will not— 
 whilst It IS not clear that a limited devise to a sole executor will 
 — have that effect. 
 
 J/) Treat. o„ Equity, 403, n. (g), oth (;;) Sl.allcross .. Finden, 3 Ves. 739. 
 
 (g) Ante. p. 270. Jy'^ '''''""■■' " ''"'"'^'^y' ' ^^- ^ '^^ 
 
 (h) 29 Chas 2, c 3 s. 10. (^'.^ p,,,,,^ , Graves, 1 Keen. 545. 
 
 !; Ant: pTt^' "^-^ " ''''-' s r" "■ r-" ' ^'- "^• 
 
 (A-) Wms. Exors. ,522. 2C3 ' " ""''"'' '' ''"'''' 
 
 (0 2 Jarm. on Wills, 503. (',A r.^.c i- 
 
 ("0 Graves . Graves. 8 Sin. 55. 150^ " """"^"'°"' ' ^'''• 
 
 J») Harding .. Grady. 1 Dr. & War. (.) 2 Jarn. on Wills, 511. 
 
 (V jl^jj (y) Warren v. Davies, 2 M. & K.49. 
 
 (z) Harris v. Watkins, Kay, 447. 
 
 T
 
 274 LIABILITY OF REPRESENTATIVES TO CREDITORS FOR DEBTS, ETC. 
 
 Where the testator has charged his real estate with his debts, 
 but shall not have devised it so as wholly to vest in the executors, 
 they may raise the monies necessary for the purpose by mort- 
 gage or sale, (and if by mortgage, reserving such a rate of 
 interest and fixing such a period for repayment as they choose,) 
 as if the will had expressly provided for the raising of such 
 monies (a). 
 Wife's separate The separate estate, whether real or personal, of a. feme coverte 
 estate. -^ Equitable Assets {b), and that whether she charges her debts 
 
 by will upon it(c) or not{d), unless, perhaps, she has been 
 judicially separated from her husband (e), in which case her 
 assets would appear to be legal or equitable according to the 
 distinctions above pointed out. 
 Equitably con- If the property be personalty bequeathed or given to the 
 perty. ^^°' deceased, with a trust impressed upon it for conversion into 
 land. Equity will, considering it as though it had been already 
 laid out in land, treat it as Equitable Assets, if there be a will 
 of the deceased charging the debts on land, and no election on 
 his part to take it as personalty, although no actual conversion 
 has yet taken place (f). 
 
 But personalty bequeathed by the deceased, and directed by 
 his will to be laid out in land, will not be as against creditors so 
 considered. 
 
 As to land directed by the testator to be converted for a spe- 
 cific purpose, as to give a legacy. Equity will regard it still as 
 land (rj), and therefore simple contract Creditors could not, prior 
 to 3 & 4 Will, 4, c. 104, have taken it for their debts ; "but if 
 you can find a substantive and independent intention to turn the 
 real estate at all events into personal, that will do" (//), — it will 
 be deemed personalty, and be Legal Assets. 
 
 I may here observe, that though the only portion of the de- 
 ceased's property which the executor or administrator takes gud 
 executor or administrator, is the personal estate, yet the duty 
 imposed on him to pay debts is often far more than co-extensive 
 with the legal interest he takes in the property. Thus, if a naked 
 power to sell lands for that purpose be given to the executors, 
 without directly devising them to them, or lands be simply 
 
 (a) 22 & 23 Vict. c. 35, ss. 14, 16. (e) 20 & 21 Vict. c. 85, s. 25. 
 
 (6) 2 White & Tud. L. C. 101, 2ncl (/) 1 White & Tud. L. C. 6GG, 
 
 edit. Whitwick v. Jermyn, cited 2 Vern. 58. 
 (c) Owens t-. Dickinson, Cr. & Ph. 48. (g) Gibbs v. Ougier, 12 Ves. 413, 
 
 {d) Anon. 18 Ves. 258, (/,) Ibid.
 
 ASSETS. 
 
 ^^ib 
 
 charged with debts, and do not wholly vest in any trustee under 
 the will (i), the task is imposed on them of selling, and paying 
 the debts in their proper order out of the proceeds, though the 
 heir must join in the sale(y), or at least, as a cautionary measure, 
 should join (k). The receipt of the executors, however, is a suffi- 
 cient discharge to the purchaser, unless the contrary be so de- 
 clared in the will (J). 
 
 The following may therefore be taken as the summary of the Summary, 
 distinctions between Legal and Equitable Assets, as applied to 
 Real and Personal Estate : — 
 
 Legal. 
 
 (i-) 
 The whole personal estate, of whatever 
 kind, including undoubtedly legal, 
 and probably equitable, chattels real. 
 
 (ii.) 
 Trust estates in fee descended. 
 
 (iii.) 
 If there be no Will, or none charging 
 debts on land. 
 
 (1.) Legal or Equitable realty, in- 
 cluding Copyholds {m). 
 
 (2.) Equity of Redemption of a 
 Mortgagee. 
 
 (a) in fee. 
 
 (b) for years. 
 
 (c) of a sum of Money 
 
 charged on Land. 
 (3.) Money directed by the debtor's 
 Will to be laid out in Land. 
 
 Equitable. 
 (i.) 
 Realty devised to Executors or Trustees 
 to pay debts (w). 
 
 (ii.) 
 Where Executors have a naked power 
 to sell Land to pay debts (o). 
 
 (iii.) 
 Produce of Land directed by the 
 debtor's Will to be sold by his 
 Executors to pay debts (/)). 
 
 (iv.) 
 General Realty charged by the Will 
 with debts. 
 
 (v.) 
 Specific Realty charged by the Will 
 with debts. 
 
 (vi.) 
 Personalty equitably converted into 
 Realty, where the Will charges debts 
 L a nd. 
 
 If "Equality (of debts) be Equity," as it is (9-), why should 
 the Inequalities, — with the hair-breadth distinctions of which, 
 perplexing to the practitioner, repugnant to justice, this section 
 has, I grieve to say, been occupied — continue ? Why may not 
 one section of an Act obliterate them for ever ? 
 
 (0 22 & 23 Vict. c. 35, s. 16. 
 Ij) 6 Cruise Dig. 36 L 
 (*) Ibid. n. (6). 
 (0 22 & 23 Vict. c. 35, s. 23. 
 (m) 3 & 4 Will. 4, c. 104. 
 
 {n) Silk V. Prime, 1 Bro. C. C. 138, n. 
 (0) Blatch V. Wilder, 1 Atk. 420, 
 note by Sanders. 
 
 (p) Wms. Exors. 1522. 
 (?) Ante, p. 272. 
 
 T 2
 
 ( 276 ) 
 
 Section 2. 
 Voluntary Payments of Debts hy Executor. 
 
 Executor's 
 power of pre- 
 ference. 
 
 Judgment 
 
 I). 
 Deceased. 
 
 Executor. 
 
 Equal and 
 
 unequal 
 
 Creditors. 
 
 Right of Preference, 
 
 Judgment v. Deceased. 
 
 Judgment v. Executor. 
 Preference, how determined. 
 
 At Law. 
 
 In Equity. 
 
 Retainer. 
 
 At Law. 
 
 In Equity. 
 Satisfaction of Debt hy Legacy. 
 Right of Representation. 
 
 Notice of debt 
 
 The rights of Creditors, in some measui'e, depend on the power 
 of preference among those who have not yet proceeded to their 
 legal or equitable remedies, which the Law confers on exe- 
 cutors and administrators. This power must, therefore, be con- 
 sidered. 
 
 Before execution sued, the legal personal representative may 
 pay whichever of several Judgment Creditors of the deceased he 
 chooses first, out of the legal personal assets {n). After execu- 
 tion, however, he must pay him first who has first issued exe- 
 cution (o). 
 
 He may also pay out of the Legal Assets a Judgment against 
 himself, obtained in an action against the deceased, in preference 
 to a debt of the deceased, of equal or inferior degree, to that on 
 which the Judgment was obtained ; but not in preference to one 
 of superior degree {p). Such Judgments are payable inter se out of 
 the Legal Assets according to their dates (5-). 
 
 Between Creditors of equal degree, M'ho have not put their 
 debts in suit, he may always pay whichever he chooses first (r), 
 and on any evidence he thinks sufficient ; and may accept any 
 composition for, and allow time for payment of, debts due to the 
 deceased, and compound debts due from him without responsi- 
 bility for loss (s) ; and he may pay a Simple Contract Creditor 
 before a contingent specialty {t). So he may pay an inferior 
 before a superior debt, provided he has at the time of payment 
 no notice of the superior one. This notice, however, need not 
 be by suit; if he be apprized by any means, it is enough (m). Of 
 a decree (v), or Judgment {x), it is said he will be presumed to 
 have notice : it might on principle be doubted, however, how 
 far this was a just presumption, even if the Judgment or decree 
 
 (r) Wms. Exors. 930. 
 
 («) 23 & 24 Vict. c. 145, s. 30. 
 
 (0 Wms. Exors. 919, n. (/*). 
 
 (m) Ibid. 930. 
 
 {v) Searle v. Lane, 2 Vern. 37. 
 
 (x) Littleton v. Hibbins, Cro. Eliz. 
 
 (n) Wms. Exors. 904. 
 
 (o) Ibid. 
 
 (/}) Wms. Exors. 901 ; as to the per- 
 sonal liability of the executor in such 
 a case, see post, Ch. II I., Sect. 2. 
 
 (q) Dollond V. Johnson, 2 Sm. & 
 Gifr. 304, 
 
 793.
 
 VOLUNTARY PAYMENTS OF DEBTS BY EXECUTOR. 277 
 
 were registered, for registration is only necessary to affect lands, 
 and is not notice (x). But a late decision seems to have esta- 
 blished that notice or no notice is immaterial, and an executor 
 is bound at his peril to have notice of a Judgment (y). 
 
 An executor may pay a debt, though he might have effectually 
 pleaded the Statute of Limitations (^). 
 
 At Law, the power of preference is determined by the com- Preference 
 mencement of an action against him by any Creditor of the de- ^ ^^"^ "^ 
 ceased, if he has notice of it (a). Li such a case he must prefer At Law. 
 the plaintiff's debt to all others of the same rank, but may still 
 pay voluntarily a superior one, and plead such payment. 
 
 In Equity similar rules prevail, with regard to the power of In Equity, 
 preference, before a suit ; but it is extended further than at Law, 
 for it is not determined by notice of the mere commencement of 
 a suit (Z»), but will be determined by a final decree to account in 
 a general Creditor's suit (c) ; but not, if the suit were for the Cre- 
 ditor's own debt only (d). 
 
 Where the executor has paid a Creditor part of his debt before 
 a decree, the Creditor shall not receive any further payment under 
 it, till the other Creditors, who put their debts in suit, have been 
 made up to him, either out of the Legal or Equitable Assets (e). 
 
 Where an executor or administrator shall have given to the 
 Creditors such notice as would have been given by the Court of 
 Chancery in an administration suit, — (^. e., one peremptory ad- 
 vertisement) — he may, at the expiration of the time notified, dis- 
 tribute the assets without any liability to Creditors of whom he 
 had no notice ; who may, however, still follow the assets in the 
 hands of persons who may have received them (f). 
 
 The doctrine of Retainer, i. e., the Representative's right to Retainer, 
 retain assets to the amount of his own debt, as against other 
 Creditors of the same rank, flows from that, which we have just 
 been considering, of his liability to pay first the Creditor who 
 shows most diligence by suing him first (^). 
 
 Retainer is a Common Law doctrine : and those Courts carry At Law. 
 it out so far as to give the representative the advantage of it, 
 even though he be only a cestui que trust of the debt {h), thus 
 
 (j-) Ante, p. 27. (rf) Perry y. Phelips, 10 Ves. 33. 
 
 (.(/) Fuller V. Redman, 7 W. R. 430. {e) Mitchelson v. Piper, 8 Sim. 64; 
 
 {z) Stahlschmidtv. Lett, 1 Sm. & G. Wilson v. Paul, 8 Sim. 63. 
 
 415. (/) 22 & 23 Vict. c. 35, s. 29. 
 
 {n) Vfms,. Exors. 931. (g) Wms. Exors. 937. 
 
 {b) Maltby r. Russell, 2 S. & S. 227. {h) Loane v. Casey, 2 W. Black, 
 
 (r) Mitchelson v. Piper, 8 Sim. 64. 965.
 
 278 LIABILITY OF REPRESENTATIVES TO CREDITORS FOR DEBTS, ETC. 
 
 recognizing trusts ; but with this qualification, that the contract 
 with the trustee must have been to pay to the representative {i), 
 and that the debt is not an annuity (the corpus being payable to 
 the trustees) {j), nor an item in a partnership account {K}. They 
 also allow the representative to retain for a debt due to him as 
 trustee for another (l), and an heir {m), or devisee (w), may also 
 retain out of the descended or devised realty, for his own debt or 
 the debt of his trustee (o). 
 
 In Equity. Courts of Equity, although, where a party can show a legal 
 
 right to retain, they " never take it away," yet " never give it 
 him unless he can show such a right" [p), therefore they allow it 
 in all cases where the assets, whether real or personal, are legal, 
 but do not allow it where they are equitable {q). 
 
 The right to retain extends to administrators, and to adminis- 
 trators durante minoritate or dementia, both for their own debt, 
 and that of their infants (r), or lunatics (s), and to an executor of 
 an executor, either for a debt due to himself or to his testator {t) ; 
 to the husband of an executrix for his own debt (m) ; or (where 
 he is executor) for a debt due to his wife dum sola {x) ; and to a 
 debt, which, if due to a stranger, would be barred by the Statute 
 of Limitations (?/). 
 
 But one executor cannot retain his debt against his co-exe- 
 cutor's debt {z). And administration is generally granted to a 
 Creditor on the terms of his not preferring his own debt (a). 
 
 A compensa- This right of retainer is a compensation for the release or ex- 
 
 tinguishment of the debt, which, if the assets are sufficient, the 
 appointment of the Creditor to be executor necessarily affects at 
 Law, by reason of the same hand that receives having become 
 the hand to pay ; and if they are insufficient, by the impossi- 
 bility of his commencing a suit to recover the debt, as other Cre- 
 ditors may. 
 
 (0 Marriott!). Thompson, Willcs, 186. {q) Wms. Exors. 938. 
 
 {j) Thompson r. Thompson, 9 Price, (r) Franks «. Cooper, 4 Ves. 763. 
 
 464. {s) Ibid. 
 
 (/f) De Tastet v. Sliaw, 1 B. & Aid. (0 Thomson v. Grant, 1 Russell, 540, 
 
 664. in notis. 
 
 (/) Plumcr II. Marchant, 3 Burr. {u) Toller's Exors. 358, 7th edit. 
 
 1380. (.r) Prince v. Ilowson, 1 Mod. 208. 
 
 (to) Loomesi). Stotherd, 1 S. & S. 458. {y) Stahlschmidt v. Lett, 1 Sm. & G. 
 
 (n) Ibid. 415. 
 
 (o) Ibid. {z) Vin. Abr. Executors (D. 2). 
 
 {p) Chapman v. Turner, Vin. Abr. («) 2 Fonbl. Treat, of Equity, 407, 
 
 Exors. (D. 2), pi. 2. n. {m.) 
 
 tion for release 
 of debt
 
 VOLUNTARY PAYMENTS OF DEBTS BY EXECUTOR. 279 
 
 An executor of an executor who has committed a devastavit 
 may retain for his own debt against the Creditor claiming for 
 the devastavit (b). 
 
 May a Creditor to whom liis Debtor bequeaths a legacy, claim Satisfaction of 
 botli the debt and legacy ? '^^'^ '^ '^°^'^^' 
 
 This question, as a practical one, only arises in Courts of 
 Equity : for a legacy not being recoverable by action in a Court of 
 Law, except in cases within the County Court Acts (c), and debts 
 not being recoverable in an Ecclesiastical Court, the Courts 
 of Equity are the only arena open to entertain this double claim. 
 
 It is a rule then in Equity, that if the Debtor bequeaths a Rule in Equity, 
 legacy to his Creditor (whether that Creditor is a child of the 
 testator or a stranger) (d), equalling or exceeding the debt in 
 amount, he shall be presumed, until the contrary appeal', to 
 have intended it as a satisfaction of the debt(e), and a decla- 
 ration will be made accordingly. 
 
 This rule is inflexible (/), and applies to every case where the 
 assets are deficient (g). 
 
 The maxim upon which it is founded is this, that " a man Maxim, "One 
 should be just before he is generous:" but it may be well an- ^JJ'^l'lbejust," 
 swered, with Lord Hardwicke, at least where the assets are suffi- 
 cient, that "a man may be both just and generous" (7^). And 
 accordingly the Courts will lay hold of slender circumstances to 
 escape from the rule {i). 
 
 Thus, it will not apply where the debt was incurred (i.) after Exceptions to 
 the date of the will (at least in cases subject to the old Wills ^"^^' 
 Act) (k) ; or (ii.) upon an open and running account (/) ; or (iii.) 
 upon a negotiable security (for the Creditor may thus have 
 passed the debt away) (m) ; or (iv.) where the debt is contingent 
 or uncertain (?0 ; or (v.) where the legacy is of the whole or part 
 of an unliquidated residue (o), or is for life only (/?) ; oris not 
 equally beneficial with the debt in some one particular, as in 
 time of payment ((/) ; or differs in nature from the debt (r), e. g., 
 
 (6) Bathurst's case, 2 Ventr. 40. (/) Rawlins v. Powel, 1 P. Wms. 
 
 (e) 9 & 10 Vict. c. 95, s. 65. 299. 
 
 {d) Tolson V. Collins, 4 Ves. 482. (m) Carr t;. Eastabrooke, 3 Ves. 561. 
 
 (e) Wms. Exors. 1167. (n) Nichols v. Judson, 2 Atk. 300. 
 
 (/) 2 Ves. sen, 636. (o) Devese v. Pontet, 1 Cox, 188. 
 
 {g) Toller's Exors. 338. (jo) Forsight v. Grant, 1 Ves. jun. 
 
 (/i) Fowler v. Fowler, 3 P. Wms. 297. 
 353. {q) 1 p. Wms. 409,n.(l.) 
 
 (0 2 Ves. sen. 636. (r) Eastwood v. Vinke, 2 P. Wms. 
 
 (ft) Thomas v. Bennet, 2 P. Wms. 616. 
 342.
 
 280 
 
 LIABILITY OF REPRESENTATIVES TO CREDITORS FOR DEBTS, ETC. 
 
 Right to repre- 
 sentation. 
 
 Acts of 
 administra- 
 tion. 
 
 Renunciation. 
 
 where a bond Debtor devises an interest in land; or is of 
 a specific chattel (unless expressly stated to be in satisfac- 
 tion) (s) ; or where the will directs payment of all debts and lega- 
 cies (t). 
 
 It is foreign to a treatise like the present to describe the 
 various persons, who are entitled permanently or temporarily to 
 become the legal personal representatives of the deceased, or the 
 transmissibility of that office. It might be sufficient to say that 
 having learnt in whom that representation is fixed, the Creditor 
 must thenceforth consider him, as regards the personal assets, 
 as the only, or at least principal. Debtor. The few following 
 remarks, however, seem relevant to the question when the 
 Creditor may consider him as clothed with that character, and 
 direct his remedy against him. 
 
 If the executor has done any act of administration, though he 
 afterwards renounce, he is liable at Law {71) and in Equity (x), for 
 his own acts, and also for the acts of his co-executor (y), and 
 cannot afterwards refuse to prove (z). What constitutes an act 
 of administration cannot be further defined than by saying that 
 it will be anything which shows an intention to administer, or 
 would be held to constitute a man an executor de son tort (a). 
 But assisting a co-executor, who has proved, to collect debts, is 
 not an act of administration by an executor who has not 
 proved (h). Proving the will is not necessarily acting (c) ; and 
 even after the executor has taken the oath, he may decline or 
 renounce the office if he has not acted (d) ; and he may retract 
 his renunciation any time before administration cum testamento 
 annexo has been granted to another, but not afterwards, whether 
 he be sole executor or one of several, nor is the Court bound to 
 cite him before making the grant (e). 
 
 One entitled to be administrator may renounce his right, and 
 retract his renunciation, until the administration has passed the 
 seal (/). An alien {g) friend may be an executor {h), or an 
 administrator (J). 
 
 (.s) Wms. Exors. 1170. 
 
 {t) Richardson d. Greese, 3 Atk. 68. 
 
 (»*) Rogers v. Frank, 1 Y. & J. 415, 
 by HuUock, B. 
 
 {x) Ibid. 409. 
 
 (j/) Whereheis,post,Cb. III.,Sect. 2. 
 
 (s) Bac. Abr. Exors. E. (10.) 
 
 (a) Wms. Exors. 244; what that is, 
 post, Book II., Ch. 11. 
 
 (J)) On- V. Newton, 2 Cox, 274. 
 (c) Balchen v. Scott, 2 Ves. jun. 678, 
 {d) Wms. Exors. 246. 
 (e) Harrison v. Harrison, 1 Robert- 
 son's Ecc. Rep. 406. 
 (/) Wms. Exors. 394. 
 {g) Wliat is, ante, p. 266. 
 (;*) Toller's Exors. 31. 
 (0 Ibid. 93.
 
 ( 281 ) 
 
 CHAPTER 11. 
 
 compulsory payments. 
 
 Section 1. 
 Judgment Creditor. 
 
 1. Remedies at Law. 2. Remedies in Equity. 
 
 Clioice of Remedies. 
 
 V. Special and Simple Con* 
 tract Creditors. 
 Real Asset'!. 
 
 V. Heir and Devisee. 
 
 V. Executor. 
 
 V. Alienee of Heir and Devisee, 
 
 V. Dowress. 
 
 V. Tenant by Curtesy. 
 
 V. Alienee of Executor. 
 
 Personal Assets. 
 Inter se. 
 
 V. Alienee of Heir or Devisee. 
 V. Alienee of Executor. 
 v. Dowress and Tenant by 
 
 Curtsey. 
 
 The death of the Debtor alters not so much the Judgment Cre- RightsofJudg- 
 ditor's rights, as his mode of Remedy. The same species of ™^^ 
 property remain amenable to his claim both at Law and in 
 Equity, but additional machinery exists for reaching it. 
 
 It devolves of course upon the legally constituted personal 
 representative of the deceased to pay the debt, so far as he has 
 assets for the purpose. And it is open to the Creditor to enforce 
 his remedy either at Law or in Equity. 
 
 Supposing him to proceed at Law, he must revive the Judg- At Law. 
 ment against the heir and terre-tenant {k), (i. e., the owner 
 of the .fee,)(Z) if he intend to proceed against the land(m); 
 or against the personal representative, if he intend to proceed 
 against the personalty {n) : in both cases either by " suggestion" " Suggestion." 
 or "writ of revivor" (o) ; and he may then sue out execution as Writ of 
 during the life(p). These remedies are substitutes for the old f^^^vor. 
 remedy of reviving the judgment by sci. fa. 
 
 The venue in a declaration on a writ of revivor may be laid in 
 any county {q), and the proceedings thereon are the same as in 
 ordinary actions. 
 
 (/r) Archb. Pr. lOGl, 1062, lOC'i. {p) For form of writ of revivor against 
 
 (/) Ante, p. 96. the heir and terre-tenant, Chitty's Forms, 
 
 {m) 2 Saund. (Wms.) 7, n. (•!•). 126; against the executor, ibid. p. 628. 
 
 (n) Ibid. 6, n. (1). {q) C. L. P. Act, 1852, s. 131. 
 (o) C. L. P. Act, 1852, s. 129,
 
 282 
 
 COMPULSORY PAYMENTS. 
 
 Action. 
 
 Alienee 
 of heir or 
 devisee. 
 
 Dowress. 
 
 Tenant by 
 curtesy. 
 
 Purchaser from 
 Executor. 
 
 Execution 
 btfore death. 
 
 In Equity. 
 
 Choice of 
 remedies. 
 
 The plaintiff may, if the application for a " suggestion " be 
 refused, bring an action of debt (r) on the Judgment. 
 
 Though the Judgment be on a cause of action which would 
 not have survived against the executor, he must pay it. 
 
 His rights a^ Z«m; against purchasers from the heir and devisee 
 of his Debtor, of freeholds or copyholds in possession, would 
 seem to be the same as those which he would have against a 
 purchaser from his Debtor (s). For the heir of the Debtor is a 
 Debtor as well as the principal Debtor (t). 
 
 If the Judgment be since 1833 {u), it will defeat the right to 
 dower (x) of a widow married since 1833 (y), and the Creditor 
 may, having sued out an elegit, whether the Judgment be 
 registered or not, bring ejectment against her if in possession ; 
 and so against a tenant by curtesy, whether the marriage took 
 place or the Judgment were entered up, before or since January 1, 
 1834. 
 
 If the Creditor proceed against the personalty, including, it 
 would seem, chattels real {z), and the executors or adminis- 
 trators have aliened before execution, the purchaser if a bond 
 Jide one, and for value, and without notice, is safe (a). 
 
 If the deceased died after execution, the writ — which bears 
 date the day it is issued {h) — may be still executed on his goods 
 in the hands of his executors without further proceedings (c). 
 
 If the Judgment Creditor prefer to resort to his Equitable 
 remedies, the following are open to him : — 
 
 1. He may have the same remedies as were open to him 
 during his Debtor's life (d) ; or 
 
 2. A single Creditor's suit ; or 
 
 3. A general Creditor's suit on behalf of himself and others ; or 
 
 4. An administration summons, or ne exeat (e). 
 
 If he proceeds by a single Creditor's suit, an account will be 
 directed of his own debt alone (f), and payment out of the per- 
 sonal estate only, but not out of the real assets (g) ; whereas, if 
 
 (r) Ibid. s. 130. 
 (5) As to which, ante, p. 69. 
 (t) Apharry v. Bodingham, 1 Cro. 
 Eliz. 350. 
 
 (u) 3 & 4 Will. 4, c. 104, s. 14. 
 
 (.r) Ibid. s. 5. 
 
 (y) Ibid. s. 14. 
 
 [z) Lewin on Trusts, Gl-7. 
 
 (rt) 19 & 20 Vict. c. 97, s. 1. 
 
 (b) R. 72, R. G., H. T. 1853. 
 
 (e) Wms. Exors. 1804. 
 
 {d) Ante, p. 56, et seq. 
 
 (e) As to which, post. Sect. 2. 
 
 (/) Attorney-General v. Cornthwaite, 
 2 Cox, 45. 
 
 (g) Johnson v. Conipton, 4 Sim. 47; 
 White V. Hillacre, 3 Y. & C. Exch. 
 Rep. 610, n. (a).
 
 JUDGMENT CREDITOR. 283 
 
 proceeding under 1 & 2 Vict, he might have enforced it primarily 
 against the realty (/«). 
 
 It may be remarked here, that if the instrument creating the 
 trust for payment of debts were a deed, and one Creditor pro- 
 ceeded in vita dehitoris to enforce payment of his debt by bill 
 in Equity, the decree would be erroneous if it were for the 
 plaintiff's debt only ; it must direct a general execution of the 
 trust (j). 
 
 If the Judgment Creditor proceed by a general Creditor's v. 
 
 suit, he will, — but a Judgment Creditor of the heir or devisee sunpTe Con- 
 will not (A), — be paid, provided he has registered and (where tract Creditors, 
 necessary) re-registered the Judgment (Z), before specialty and Out of real 
 simple Creditors of the deceased, so far at least as regards real 
 assets, whether legal or equitable {m). 
 
 This privilege extends to Judgments, strictly so called, in all 
 Home Courts of Record, Superior or Inferior (/j), although Judg- 
 ment was obtained pendente a Creditor's suit, provided it was ob- 
 tained before a decree in it (o), but not to a decree in the Lord 
 Mayor's Court (p). 
 
 But a judgment of a Foreign, which includes a Colonial ( (j) Foreign Judg- 
 Court, has no precedence here over even a simple contract debt (r). ""^"'' 
 An English Judgment will be regarded in Ireland as a foreign 
 Judgment, and as only on a rank with simple contract debts (s). 
 Nor will the plaintiff in a Creditor's suit, proceeding to prove 
 his debt at Law in pursuance of leave by the Court of Chancery, 
 and obtaining Judgment thereon, thereby acquire priority over 
 the other Creditors on behalf of whom he is suing {t). 
 
 As regards also the personal assets, a Judgment, provided it Out of per- 
 be registered and (where necessary) re-registered («), is preferred ^'^"^^ assets, 
 to specialty and simple contract debts, if it be for value ; so that an 
 executor, though he had paid the debts of inferior rank in igno- 
 rance of it, will not be allowed such payments as against it (?'), 
 
 Qi) Ante, p. 62. {q) Smith v. Nicolls, 5 Bingh. N. C. 
 
 (i) Hamilton v. Houghton, 2 Bligh, 208. 
 
 169' (r) Wilsonv.Lady Dunsany, 18 Beav. 
 
 (A) Kinderley v. Jervis, 22 Beav. 1. 293. 
 
 (0 23 & 24 Vict c. 38, ss. 3, 4. {s) Arguendo, 18 Beav. 296. 
 
 (ra) 2 White & Tud. L. C. 98. {t) Gilbert v. Hales, 8 Beav. 236. 
 
 (n) Ram on Assets, 282. («) 23 & 24 Vict. c. 38, ss. 3, 4. 
 
 (o) Larkins v. Paxton, 2 Beav. 219. (i;) Fuller v. Redman, 7 W. R. 430; 
 
 (/j) Holt V. Murray, 1 Sim. 485. Prid. Judg. 109. 
 
 • • T 6
 
 284 
 
 COMPULSORY PAYMENTS. 
 
 but if voluntary, i.e., obtained on a voluntary cause of action, it 
 will be postponed to all debts for value {x). 
 Inter se. Inter se Judgments obtained against the deceased will be paid 
 
 according to the dates of their registration as regards his real 
 assets {y), whether Legal or Equitable, but pari passu as regards 
 the personal assets (s"), (if no execution has issued upon them,) 
 and in this case registration seems immaterial (a), for though it is 
 necessary against co-Creditors having a charge on land (Z»), — and 
 a Judgment is such a charge if there be land to be administei-ed, 
 ■ — yet where the assets are only personal, or it is sought only to 
 make such assets liable, it is not pro hac vice such a charge. 
 But if any Judgment Creditor or all have issued execution, then 
 they shall be paid, as in the case of voluntary payments, accord- 
 ing to the dates of their writs of execution. 
 
 ... "• , If the heir or devisee aliene the real assets, the Judgment 
 
 Alienee of , _ . 
 
 heir or devisee. Creditor may, in Equity as at Law, if the Judgment (c) and 
 writ id) be registered, follow them in the hands of a purchaser for 
 value with notice ; or of a voluntary alienee with or without 
 notice, though the writ be not registered, (and may in the last 
 case, if the alienation (ej be fraudulent as well as voluntary, set 
 it aside); but not as against a bona fide purchaser without 
 notice (/). 
 
 So as to personal assets, if the purchaser and executor or ad- 
 ministrator collude (^) : but not if the purchase be for value (A), 
 Judgments being no more than any other debt, a lien on per- 
 sonalty. And the rule of the Courts is the same, where the assets 
 aliened are equitable (i), and whether the assignment is absolute 
 or by way of mortgage (J), and whether the testator bequeathed 
 his property in trust or not(^), and in alienations by an executor 
 de son tort, provided he is really acting as executor, and the party 
 dealing with him has fair reason to believe that he has authority 
 to act as such, and the act is such as the lawful executor would 
 be bound to do {I). 
 
 Lis pendens. The registration in the Common Pleas by the Creditor of a 
 
 (a-) Seton (2nd ed.) 56. (e) 13 Eliz. c. 5, s. 2. 
 
 iy) Burke v. Killikelly, 1 Jr. Ch. (/) 1 & 2 Vict. c. 110, s. 13, sub 
 Rep. 1, and 18 & 19 Vict. c. 15, s. 4. finem. 
 
 (s) Wms. Exors. 904 ; 2 Sm.& G. 304. {g) Nugent v. Gifford, 1 Atk. 464. 
 
 («) Wms. Exors. 903. {h) Ibid.; 22 & 23 Vict. c. 35, s. 23. 
 
 (6) Ante, p. 27. (i) Ibid. 
 
 (c) c/. 1 & 2 Vict. c. 110, s. 13 and {j) Ram on Assets, 476. 
 23 & 24 Vict. c. 38, s. 3. (/:) Ibid. 477. 
 
 (d) Ibid. 8. 1. (/) Graysbrook v. Fox, 1 Plowd. 275. 
 
 Purchaser from 
 executor.
 
 JUDGMFNT CREDITOR. 
 
 285 
 
 lis pendens, — the commencement of which is the fihng of a 
 bill (/), and which applies only to suits in Equity,— binds a pur- 
 chaser of the land from the heir, executor or devisee. And 
 a general administration suit is a lis pendens quoad lands after- 
 wards sold under it. Express notice to the purchaser will affect 
 him without registration of the lis j)endens (m). 
 
 The Judgment would be preferred in Equity to a tenant by 
 dower (n), or curtesy, as at Law. 
 
 A Judgment will be sufficiently re-registered as against heirs, 
 executors and administrators, although more than five years shall 
 have elapsed since its last registration, if the re-registration be 
 within five years before the death of the Debtor (o). 
 
 A trust for sale to pay testator's debts overrides a judgment Devisee in 
 against the trustee, though he be also cestui que trust (p). 
 
 Dowress, &c. 
 
 trust. 
 
 Section 2. 
 Specialty and Simple Contract Creditors. 
 
 Remedies at Law. 
 
 V. Alienee of Heir or Devisee. 
 
 V. Heir. 
 
 V. Executor. 
 
 " Actio personalis." 
 
 Pleas by Executor. 
 
 Judgment when de bonis pro- 
 
 priis. 
 Judgment of Assets quando. 
 Judgment de bon. test, how en- 
 forced. 
 Fi. fa. 
 Sci. fa. 
 
 Action on Judgment. 
 Remedies in Equity. 
 Parties. 
 
 Personal Assets Suit. 
 Real Assets Suit. 
 General Property of Feme coverte. 
 Payment out of Personal Assets. 
 Specialties inter se. 
 Specialties v. Simple Contracts. 
 
 Payment out of Real Assets. 
 Legal. 
 
 Specialties binding 
 
 Heir. 
 Not binding Heir. 
 Equitable. 
 Voluntary Creditors. 
 Future Debts. 
 Contingent. 
 Order of Application of Assets. 
 Choice of Remedies. 
 
 Single Creditor's Suit. 
 General Creditor's Suit. 
 Administration Summons. 
 Ne exeat. 
 Injunction. 
 Refunding Assets. 
 
 Creditors v. Legatees. 
 inter se. 
 Sir G. Turner's Act. 
 Executor's Petition for Advice. 
 
 Where the deceased has bound himself and his heirs by Remedies at 
 specialty, and has died without charging his real estate by will ^'**- 
 with his debts, the specialty creditor may bring his action of ^^ 
 
 debt or covenant against the heir and devisee (or the devisee of Heirordevisee. 
 such devisee) jointly {q), or against the devisee solely, if there is 
 
 (I) Drewt). Earl of Norbury, 3 Jones 
 & L. 267. 
 
 (w) 2 Vict. c. 11, s. 7; 2 Sugd. 
 V. & P. 1013. 
 
 (n) Jones v. Jones, 4 K. & J. 361. 
 (o) 23 & 24 Vict. c. 38, s. 4. 
 (/)) Drummond d. Tracy, 1 Johns. 608. 
 (q) 11 Geo. 4 & 1 Will, i, c. 47, s. 3. 
 
 t7
 
 286 
 
 COMPITLSORY PAYMENTS. 
 
 Alienee of 
 heir or devisee. 
 
 Executor. 
 
 Personal 
 claims survive. 
 
 Where not. 
 
 " Actio per- 
 sonalis," &c. 
 
 no heir at Law (r). It is not necessary to allege in the declara- 
 tion that the heir has lands by descent (s). 
 
 And if the heir (t) or devisee (u) aliene before action, he shall 
 be answerable to the Creditor to the value of the lands aliened, 
 and execution may issue against him, as if the debt had been 
 his own proper debt, at least, if he had notice of the debt at 
 the time of the alienation (.r) ; but the lands shall not be liable, 
 provided that the alienation were bond fide (y). 
 
 Whether the debt be by specialty (binding, or not binding, the 
 heirs), or by simple contract, the Creditor may sue the executor 
 or administrator at Law : for it has been established from very 
 early times that as to such personal claims as are founded on any 
 obligation, contract, debt, covenant, or any other duty to be per- 
 formed, the right of action against the Debtor survives against 
 his representatives {z), for they are implied in himself, and bound 
 without naming («). 
 
 And a promise by one that his executors shall pay a sum of 
 money may be enforced against them (b) so far as they have 
 assets ; and is of frequent occurrence in wills and settlements. 
 Of this nature are post obit bonds (c). An action of debt for a 
 simple contract debt contracted by the deceased is maintain- 
 able (c?) against the executor or administrator in any Court of 
 Common Law. 
 
 But where a contract is personal, in the sense of being capable 
 of being, or intended to be, performed personally by the testator 
 only, (e. g., a contract to compose a work, teach an apprentice, 
 &c.) fe); or where it is a matter of tort and not of contract {f), 
 the right and remedy against him generally drops with his life. 
 And this seems the extent of the meaning of the maxim " Actio 
 personalis moritur cum persona." 
 
 A cognovit actionem given by the deceased expires with his 
 death (g), and so does a warrant of attorney to confess Judg- 
 ment, notwithstanding the deceased agreed that Judgment might 
 be entered up on it after his death (h). 
 
 (r) Ibid. s. 4. 
 
 (s) Derisley v. Custance, 4 T. R. 75. 
 (0 11 Geo. 4 & 1 Will. 4, c. 47, s. 6. 
 (m) Ibid. s. 8. 
 
 {x) Apharry v. Bodingham, 1 Cro. 
 Eliz. 350. 
 
 (y) 11 Geo. 4 & 1 Will. 4, c. 47, s. 6. 
 («) 1 Saund. (Wms.) 216 a, n. (1). 
 (a) Hyde v. Skinner, 2 P. Wms. 197. 
 
 (i) Powell V. Graham, 7 Taunt. 580. 
 
 (e) Ante, p. 145. 
 
 (rf) 3 & 4 Will. 4, c. 42, s. 14. 
 
 (e) Wms. Exors. 1560. 
 
 (/) 1 Saund. (Wms.) 216 a, n. (1). 
 
 (g) Tidd's Pr. 551 (9th ed.). 
 
 (h) Heath v. Brindley, 2 Add. & Ell. 
 
 3GL
 
 SPECIALTY AND SIMPLE CONTRACT CREDITORS. 287 
 
 The executor may plead any matter which the deceased might Pleas by 
 have pleaded, and may also plead '' ne unqms executor-" or, 
 admitting the executorship, may plead that lie has no assets, 
 and that either generally {ylenc administravit), or specially, that 
 he has none except such and such {plene admhiisiravit prceter), 
 or he may plead a retainer to pay his own debt of equal or 
 superior degree, and he is hound to plead debts of a superior 
 degree due to third parties (^). 
 
 It is necessary to sue such executors only as have admi- 
 nistered {j ). No executor shall be chargeable by reason only 
 of any {k) written acknowledgment of his co-executor or admi- 
 nistrator, which shall as to such co-executor or co-administrator 
 take the case out of the Statute of Limitations. Nor shall he be 
 chargeable by reason only of any payments by his co-executor 
 or co-administrator (/). When final Judgment is obtained 
 against the executor upon any plea which admits that he has 
 acted as such — except a plea of a release to himself, or a plea of 
 plene administravit, or admitting assets to such amount, and riens 
 ultra) — Judgment is that the (m) debt and costs be levied of 
 tlie assets of the deceased {de bonis testatoris) in the hands of 
 the defendant, if he have so much, and if not, then the costs out 
 of his own goods {de bonis propiiis) (n). 
 
 But where he pleads " ne unqiies executor ' or a release to Judgment ^e 
 himself, and it is found against him, the Creditor may have ^°«- /""i^''- 
 Judgment against him for the debt and costs de bonis propriis (o). 
 The reason alleged being that the executor must know these to 
 be false pleas. These are the only two cases in which the Judg- 
 ment is of that tenor, and they both in effect charge the repre- 
 sentative personally with the debt as well as the costs, if the 
 assets are deficient (p). 
 
 If the executor plead plen^ administravit or plen^ administravit Of assets in 
 prcBter, and the plaintiff cannot prove assets in his hands, he may ■^"^'"'°- 
 confess the plea, and take Judgment, on the former plea, of assets 
 quando acciderint (or, as is sometimes called Judgment of assets in 
 futuro, which shall thereafter come to his hands), on the latter 
 plea, of the assets presently in the defendant's hands, and of assets 
 
 (0 Tidd'sPr.644(9thed.); 1 Saund. {I) 19 & 20 Vict. c. 97, s 14, 
 
 (Wms.) 333 a. (m) 1 Saund. (Wms.) 219 b. 
 
 {j) What constitutes administering, («) Ibid. 335, n. (10). 
 
 ante, p. 280. (o) Ibid. 33(J b. 
 
 (/f) 9 Geo. 4, c. 14, s. 1. (p) Wms. Exors. 1736, 1789.
 
 288 COiMPULSORY PAYMENTS. 
 
 in futuro for the residue {q); and this Judgment will embrace 
 assets come to him between the issuing of the writ and the 
 Judgment (r). In such a case he cannot have execution, 
 until some assets come to hand, when such proceedings, it is 
 said (5), may be had by him against the executor {t), as are 
 provided by the Common Law Procedure Act, 1852, and here- 
 inbefore referred to as to writs of revivor, i. e., he may have an 
 action of debt on the Judgment, or a writ of revivor. It is to 
 be observed, however, that an action on the Judgment is only 
 given in the case of a failure of an application to enter a " sug- 
 gestion' (u). 
 How to enforce The plaintiff may enforce a Judgment against the executor de 
 
 Judffnients 7 • ^ a j • 
 
 de bin. test. ^onis testaturis, 
 
 1. By Ji.fa. de bonis testatoris. 
 
 2. By ca. sa. or fi. fa. against the person or goods of the 
 
 executor. 
 
 3. By sci. fa. 
 
 4. By action of debt on the Judgment suggesting a de- 
 
 vastavit (v). 
 
 ^^- fas. 1. The fi. fa. de bonis testatoris is issued in the usual way, as 
 
 if the Judgment had been against the deceased. 
 
 2. If to a fi. fa. de bonis testatoris the Sheriff return nulla 
 bona and devastavit, the plaintiff may sue out a ca. sa., or an 
 elegit, or fi. fa. de bonis propriis (.r), for the Judgment is con- 
 clusive that there were assets, and so to have lost them must be 
 a devastavit. 
 
 3. If to a fi. fa. de bonis testatoris the Sheriff returns nulla 
 bona only, a scire fieri inquiry may be sued, commanding him to 
 levy the debt de bonis testatoris if &c., and if not, if it shall appear 
 defendant has wasted, to give defendant notice to show cause 
 against execution de bonis propriis {y). 
 
 Sci. fa. In all writs of sci. fa. the plaintiff may recover his costs on a 
 
 Judgment by default as well as after plea {z). 
 Action. 4. The more usual remedy, however, is an action of debt on 
 
 the Judgment, suggesting a devastavit. The Judgment being, 
 
 (<7) Archb. Pr. 1155. {v) Wms. Exors. 1797, 1798. 
 
 (r) Smith v. Tateham, 2 Exch. 205. {x) Archb. Pr. 1158. 
 
 (s) Wms. Exors. 1807. {ij) Wms. Exors. 1798. 
 
 (0 C. L. P. Act, 1854, s. 91. («) 3 & 4 Will. 4, c. 42, s. 34. 
 (m) C. L. p. Act, 1852, s. 130.
 
 SPECIALTY AND SIMPLE CONTRACT CREDITORS. 289 
 
 as we have said, conclusive that there are assets, the plaintiff may, 
 on the Sheriff's return of nulla bona only (and no devastavit) to a 
 Ji. fa. de bonis testatoris, bring this action (a) ; which may also 
 be brought against the executor's executor or administrator (h). 
 It is in form an action in the debet and detinet, if brought against 
 the original representative, and the Judgment is de bonis propriis ; 
 if against his repi*esentatives, in the detinet only, and the Judg- 
 ment is de bonis testatoris (c). 
 
 The County Court Rules, which regulate actions in those County Courts. 
 Courts against executors or administrators, in pursuance of the 
 power given by 19 & 20 Vict. c. 108, s. 32, to the five County 
 Court Judges named by the Lord Chancellor to frame Rules of 
 Practice, are Rules 154—169; which prescribe principally the 
 forms of Judgment against them de bonis testatoris or de bonis pro- 
 priis, according to the different allegations and circumstances 
 of the case : to these the reader is here referred. 
 
 I have said that the death of the Debtor does not affect the Remedies 
 rights of the Judgment Creditor so much as his modes of remedy. "^ ^i^i'^y- 
 It is otherwise with his specialty and simple contract Creditors. 
 Although such debts constitute no lien on his property during 
 his life, nor after his death until a decree has been obtained, 
 and not perhaps even then against his leaseholds or specific 
 chattels {d), a new class of rights arises to such Creditors upon 
 that event. Before that they had, generally, no locus standi in 
 Equity. Upon it, they have a distinct equity to have all his . 
 estate administered in Equity, whether it be sufficient or insuf- 
 ficient for the payment of his debts, and that, too, even where 
 the debt is one solvendum in futuro (e), or is payable under a 
 voluntary absolute covenant (/), though the damages for the 
 breach are unliquidated (g). But a contingent debt does not 
 give the Creditor any such locus standi (h). 
 
 The questions which will next arise to the Creditor are, what 
 choice of remedies has he, and whom must he make parties to 
 his suit ? 
 
 1. With regard to parties. Supposing the assets are personal Parties to Bill, 
 only, and that the Creditor proceeds bg Bill, the classes, of per- 
 
 {n) Wnis. Exors. 1801. C. C. 13. 
 
 (b) 30 Chas. 2, c. 7, s. 2 ; 4 & 5 Will. (/) Jenkins v. Briant, 6 Sim. G03 ; 
 & M. c. 21', s. 12. Watson v. Parker, 6 Beav. 283. 
 
 (c) 1 Saund. (Wnis.) 219 f. {g) Musson v. May, 3 V. & B. 19k 
 {(l) Simpson v. Morley, 2 Kay & J. 7L (//) G Sim. 608. 
 
 (c) Whitmore v. Oxborrow, 2 Y. & C. 
 
 U
 
 290 
 
 COMPULSORY PAYMENTS. 
 
 Personal assets sons whom it will be necessary or unnecessary to make defendants 
 ^"^*' may be thus tabulated : — 
 
 Necessary Parties. 
 1. 
 
 If the suit concern property here — 
 a representative duly consiituted here, 
 (whether the deceased had a foreign 
 domicil and assets (i), and the will 
 were proved, and the executor resided, 
 abroad ; or had a home domicil and 
 foreign assets) {k). 
 
 If the debt he sued for abroad — a 
 foreign representative who, by the 
 comity of nations, will be generally the 
 home representative (?). 
 
 2. 
 The personal representatives of a 
 personal representative dying before 
 the suit, as well as the surviving or con- 
 tinuing representative (if any) [711). 
 
 3. 
 
 Every representative who has acted, 
 this being sufficient at Law (»«), and 
 much more in Equity (0), though he be 
 an infant (p), or has renounced (q). 
 
 4. 
 A legal personal representative, as 
 well as the executor or administrator 
 de son tort, if the suit be against the 
 latter (s). 
 
 The husband of a feme coverte, exe- 
 cutrix or administratrix, unless he is an 
 exile or has abjured the realm (y). 
 
 Unnecessary Parties. 
 
 Representatives who have not proved 
 or acted (r). 
 
 The legal personal representative of 
 a deceased person who was interested 
 in the suit (t), if there is a difficulty in 
 obtaining representation to him (e.g., 
 owing to his insolvency) (?*), provided 
 his is not the estate which is being ad- 
 ministered by the Court {x). 
 
 (i) Whyte V. Rose, 3 Q. B. 507. 
 
 {k) Price V. Dewhurst, 4 M. & Cr. 76. 
 
 (Z) Burton w. Fisher, Milw. Ir. Eccles. 
 Rep. 186. 
 
 {m) Hall V. Austin, 2 Coll. 570. 
 
 (n) Vin. Abr. Party, B. (9). 
 
 (0) Brown v. Pittman, Gilb. Eq. Rep. 
 75. 
 
 (p) Wms. Exors. 1826. 
 
 (q) Ibid. 244. 
 
 (r) Mitf. on PI. (5th ed.); note on 
 Parties by Smith, 404. 
 
 («) Creasor v. Robinson, 14 13eav. 
 589. 
 
 (0 15 & 16 Vict. c. 86, s. 44. 
 
 (u) Long V. Storie, Kay, App. xii. 
 
 (x) Silver v. Stein, 1 Drew. 295. 
 
 (y) Mitf. on PI. (5th ed.) 32.
 
 SPECIALTY AND SIMPLE CONTRACT CREDITORS. 
 
 291 
 
 Necessary Parties. 
 
 6. 
 If the sole executor or administrator 
 be a lunatic, — the person (generally the 
 committee of his estate) to whom ad- 
 ministi-ation durante vitio animi is 
 granted (s); if one of several become 
 lunatic, then the person (usually his co- 
 executor), to whom new probate is 
 granted, with power to him to prove, 
 when recovered («). 
 
 Debtors to the estate, where they col- 
 lude with the representative, or where 
 he is insolvent, or there is some other 
 special circumstance (e). 
 
 Trustees of the will of deceased, 
 where the personalty is vested in 
 them {i). 
 
 9. 
 If the deceased died intestate, a 
 bastard, and without kindred, — the ad- 
 ministrator appointee of the Crown (/). 
 
 10, 
 
 If the intestate were an alien, — the 
 administrator entitled to administration 
 by the laws of the foreign country, 
 which the ambassador will certify ac- 
 cordingly (w). 
 
 11. 
 
 If the deceased died an outlaw, whe- 
 ther testate or intestate, — for one cannot 
 
 Unnecessary Parties. 
 
 3. 
 
 The legal personal representatives of 
 a deceased Debtor, where the suit is by 
 his Creditors under a trust deed, and 
 his estate is insolvent (b). 
 
 Residuary legatees (c). 
 
 5. 
 General pecuniary legatees {d). 
 
 6. 
 Specific legatees (/). 
 
 7. 
 Annuitants (g). 
 
 8. 
 
 Next of kin(/«). 
 
 Co-creditor (by name) whether it be 
 a single or general Creditors' suit (/c). 
 
 10. 
 
 Persons beneficially interested in the 
 personal estate, if the will vests it in 
 trustees (ffj). 
 
 11. 
 
 A purchaser or mortgagee (from the 
 deceased) of a chattel in possession or 
 action, unless the bill seeks to set the 
 alienation aside as fraudulent under 
 13 Eliz. 
 
 12. 
 
 A purchaser or mortgagee (from the 
 representative) of the personal estate, 
 
 {z) Phillips on Lunacy, 24. 
 
 (rt) In the goods of Marshall, 1 Curt. 
 Eccles. R. 297. 
 
 (i) Chaffers v. Headlain, 9 Hare, 
 A pp. xlvi. 
 
 (c) Brown v. Dowthwaito, 1 Madd. 
 448. 
 
 (d) Calvert on Part. 203. 
 
 (c) See cases collected, Wms. Exors. 
 
 1832, n. {q.) 
 
 (/) Calvert on Part. 203. 
 
 {g) Fisk V. Norton, 2 Hare, 381. 
 
 {h) Wheatleyw. Purr, 1 Keen, 554. 
 
 («■) 15 & 16 Vict. c. 86, s. 42, r. 9. 
 
 (^h) Anon. 3 Atk. 572. 
 
 {I) Bell V. Alexander, 6 Hare, 544. 
 
 (m) 15 & 16 Vict. c. 86, s. 44. 
 
 («) Wms. Exors. 840, n. (a). 
 
 U
 
 292 
 
 COMPULSORY PAYMENTS. 
 
 Necessary Parties. 
 
 make a will of personalty during out- 
 lawry — the administrator (generally the 
 Creditor who has proceeded to out- 
 lawry ), to whom administration has heen 
 granted by the Crown (o). 
 
 Real assets suit. 
 
 Unnecessary Parties. 
 
 whether in possession or action, if there 
 be no collusion (/)). 
 
 13. 
 
 Assignees in bankruptcy or insol- 
 vency of a bankrupt or insolvent re- 
 presentative, the deceased's estate not 
 passing to them ((7). 
 
 Debtors to the deceased not collud- 
 ing with the representative, or where 
 the representative is solvent, and there 
 are no special circumstances (r). 
 
 A Creditor's suit does not prevent the Statute of Limitations 
 from running against a Creditor who attempts to prove his debt 
 in the suit after the time allowed him by Law to sue in (s). 
 
 When the assets are real as well as personal, and the suit by 
 Bill seeks to affect them, the necessary parties may be distin- 
 guished as follows : — 
 
 Necessary PartiEs- 
 1, 
 Whether the suit is by a Judgment 
 Creditor, or a Creditor by specialty (bind- 
 ing or not binding the heir), or by 
 simple contract, against the devisee, 
 under 3 & 4 Will. 4, c. 104, (which in- 
 cludes cases in which the Debtor has 
 died wholly intestate as to real estate, 
 and those where, having made a will, 
 he has not charged his lands by will 
 with his debts; whilst the 11 Geo. 4 
 & 1 Will, 4, c. 47, applies to the latter 
 case only), — the personal representa- 
 tive, since Equity will first apply the 
 personalty (<). 
 
 Where the deceased has died wholly 
 or partially intestate as to real estate, — 
 his heir at law or by the custom. 
 
 Unnecessary Parties. 
 1. 
 Where the deceased has devised all 
 his land, and the suit is under 3 & 
 4 Will. 4, c. 104,— the heir (m), for it 
 is not now necessary to establish the 
 will against him (a). 
 
 (0) Megit V. Johnson, 2 Doug. 546. 
 
 (/)) Wms. Exors. 563 (/). 
 
 (g) Ante, p. 213. 
 
 (r) Wms. Exors. 1832, n. (g). 
 
 («) Berrington v. Evans, 1 Y. & C. 
 
 Exch. Rep. 434. 
 
 (0 Wms. Exors. 456, 1828. 
 
 (?<) Bridges v. Hinxman, 16 Sim. 71. 
 
 (x) Goodchild v. Terrett, 5 Beav. 398.
 
 SPECIALTY AND SIMPLE CONTRACT CREDITORS. 
 
 293 
 
 Necessary Parties. 
 
 3. 
 
 Legatees (y), or annuitants («), (if 
 any), whose legacies or annuities are 
 charged by the will on land. 
 
 Where the Debtor has devised all or 
 part of his real estate not in trust, — 
 the devisee or devisees thereof, down to 
 the first vested estate of inheritance (6). 
 
 5. 
 Where the Debtor has devised all or 
 part of his real estate in trust — the de- 
 visee in trust. 
 
 If the Debtor were a freeholder and 
 died intestate, without heirs (d), or a 
 bastard, or an outlaw — the Attorney- 
 General. 
 
 If the Debtor were a copyholder, and 
 died intestate, without heirs (g), or a 
 bastard, or an outlaw — the Lord. 
 
 Mortgagees of deceased, — if the 
 plaintiff be a Judgment Creditor, seek- 
 ing to redeem or foreclose them. 
 
 Judgment Creditors of deceased, — 
 plaintiff being a Judgment Creditor 
 seeking to redeem or foreclose them (i). 
 
 (y) Harrison v. Stewardson, 2 Hare, 
 532. 
 
 (») Garrett V. Hayter, 9 L.J.(Ch.) 197. 
 
 (a) Parker v. Fuller, 1 R. & M. 650. 
 
 (6) Mitf. on PI. 200 (5th ed.) 
 
 (c) 15 & IG Vict. c. 86, s. 42, r. 9. 
 
 (d) Evans v. Brown, 5 Beav. Ilk 
 
 Unnecessary Parties. 
 
 2. 
 
 Legatees and annuitants charged as 
 prior incumbrancers on the realty by 
 settlement, under which the Debtor 
 claims (a). 
 
 Where any of the real estate is de- 
 vised in trust — the cestuis que trust 
 thereof (c). 
 
 4. 
 Where the suit is by a specialty or 
 simple contract Creditor— a purchaser 
 or mortgagee (though with notice of the 
 debt), from the heir or devisee (e), or 
 (where the will has charged the realty 
 with debts, without wholly vesting it in 
 trustees) from the executor (/). 
 
 Mortgagees legal or equitable, from 
 the Debtor (unless the plaintiff be a 
 Judgment Creditor seeking to redeem 
 or foreclose them), the Creditors having 
 no rights against them {h). 
 
 Tenant by Dower or freebench — since 
 a sale will be subject to her right (A-). 
 
 7. 
 Tenant by curtesy — for he would hold 
 the land free from debts (1). 
 
 8. 
 
 Co-Creditor (by name), whether the 
 suit be a single or general Creditor's suit. 
 
 (e) Richardson ?;. Horton,7 Beav.112. 
 (/) 22 & 23 Vict. c. 35, ss. 16, 17. 
 (g) Evans v. Brown, 5 Beav. 114. 
 (/() Pearse v. Hewett, 7 Sim. 479. 
 (i) 14 Sim. 312. 
 
 (k) Spyeru. Hyatt, 20 Beav. 621. 
 (/) 2 Drew. 191. 
 
 V O
 
 294 
 
 COMPULSORY PAYMENTS. 
 
 General pro- 
 perty of feme 
 coverte. 
 
 Payment out 
 of personal 
 assets. 
 
 Out of real 
 assets. 
 
 Legal. 
 
 Equitable. 
 
 Voluntary 
 Creditors. 
 
 Future. 
 
 A feme coverte may, as we have seen, contract debts so far as 
 that by executing any written instrument she may make her 
 separate estate liable to them ; and, inasmuch as her Creditors 
 have not the means at Law of compelling payment, the Courts 
 of Equity give effect to them, not as personal liabilities, but by 
 laying hold of the separate property as the only means by which 
 they can be enforced {m). 
 
 Whether the instrument need be in writing at all seems, as 
 we have seen {n), not settled ; but the probability is, when that 
 question comes to be decided, it will be answered in the nega- 
 tive {o). But neither at Law, nor in Equity, can her debts be 
 enforced against property, whether real or personal, held gene- 
 rally in trust for her ; so that after her death " her heir, as to any 
 freehold property, and her husband, as to any leaseholds and 
 other personalty" so held, hold those several estates free from her 
 debts (j9). But if the Creditor has been induced to lend his 
 money by her fraud, that will make a difference {q). 
 
 Out of personal assets, Specialty Creditors /or value, whether 
 binding the heir or not, will, inter se, be paid pari passu (r), 
 (rent for land out of England, however, not ranking as a spe- 
 cialty), but preferentially to simple contract debts (s). 
 
 As regards real assets, Creditors by specialty in which the heirs 
 are bound, will be paid in Equity, out of such of them as are 
 legal, before those in which the heir is not bound, and before 
 simple contract Creditors {t) — (even though the deceased has 
 directed by his will that his assets should be equally distributed 
 among all his creditors; (u) — the two last-named classes being 
 paid pari passu {x). 
 
 Whilst as regards such real assets as are equitable, Creditors 
 by specialty, whether binding the heir or not, and simple contract 
 Creditors, will all be paid, inter se, pari passu (y). 
 
 Creditors by voluntary bond or covenant will be postponed in 
 payment to simple contract Creditors, whatever the nature of the 
 assets {z). 
 
 But if the specialty, e. g., a bond, be for value, and is sure to 
 
 (m) Owens v. Dickenson, Cr. & Ph. 
 54. 
 
 (») Ante, p. 262. 
 
 (o) Vaughanw.Vanderstegen, 2 Drew. 
 183, 184. 
 
 (p) Ibid. 191. 
 
 (7) Ibid. 363. 
 
 (r) Wms. P. P. 97. 
 
 {s) Ibid. 100. 
 (0 3 & 4 Will. 4, c. 104. 
 (u) Turner v. Cox, 8 Moo. P. C. 
 288. 
 
 (j) 3 & 4 Will. 4, c. 104. 
 
 (v) Plunketv. Penson, 2 Atk. 294, 
 
 (z) Seton, i)6.
 
 SPECIALTY AND SIMPLE CONTRACT CREDITORS. 
 
 295 
 
 become due, though it has not yet become due, it is payable, to 
 the extent of the sum named in the condition, before debts by 
 simple contract (a). 
 
 Yet contingent specialty debts, e. g., a bond to save harmless, Contingent. 
 or for further assurance, shall not stand in the way of simple 
 contract debts, whatever the nature of the assets ; nor is a repre- 
 sentative bound to keep assets in hand to satisfy contingent debts 
 whether by specialty or simple contract (b). 
 
 Where the liability is in respect of rent or agreements in any 
 
 conveyance on chief rent or rent-charge or agreement for such 
 
 conveyance, the executor shall not be answerable for it, if he has 
 
 paid away the residuary personalty, provided he has satisfied all 
 
 liabilities accrued due at the time he so paid it away, and set 
 
 apart a fund to meet claims in respect oi fixed sums (c). 
 
 The order in which a Court of Equity will administer the Order of ad- 
 
 . nn J.- .-, • ^ , ministration, 
 
 assets appears, at first sight, to be a question attectmg the rights 
 
 of parties other than the Creditors beneficially interested in 
 
 them, rather than those of the Creditors themselves «). Yet, 
 
 inasmuch as a Creditor going into a Court of Equity, though 
 
 having a right against all the funds, takes them in the mode and 
 
 order which the doctrines of the Court point out, that mode and 
 
 order indirectly become a question of the rights of the Creditors 
 
 themselves. The following, then, is the order in which the 
 
 different assets will be applied to pay debts (e) : — 
 
 1. The general personal estate, if not expressly or by plain 
 
 inference excepted, 
 
 2. Freeholds, copyholds, and leaseholds, devised or directed 
 
 to be sold to pay debts. 
 
 3. Descended realty. 
 
 4. Realty or personalty charged with debts, and then specifi- 
 
 cally devised or bequeathed. 
 
 5. General legacies and annuities rateably. 
 
 6. Specific legacies, and all devises, whether specific or re- 
 
 siduary, rateably (/), (for even since the new Wills Act 
 a devise, though expressed to be of the residue, is in 
 point of Law specific) {g). 
 
 7. Realty and personalty appointed by the will under a 
 
 power. 
 
 (a) Atkinsont). Gray, ISm.&G. 577. (e) Ibid. 
 
 (6) Wms. Exors. 919, n. {h). (/) Eddels v. Johnson, 6 W. R. 401. 
 
 (c) 22 & 23 Vict. c. 35, ss, 27, 28. (g) Ibid. 
 
 (d) 2 Jarm. Wills 526 (2nd ed.)
 
 296 COMPULSORY PAYMENTS. 
 
 Remedies. o The Creditors' choice of remedies in Equity may, I think, 
 
 be conveniently and exhaustively distributed under the following 
 heads. He may either — 
 
 Single Credi- (i.) Have a single Creditor's suit by bill, if the assets be per- 
 
 tor's suit. sonal only, or he only seeks to affect the personal assets (h). 
 
 General. (^ii.) A general Creditors' suit on behalf of himself and all 
 
 the other Creditors, by bill, whether the assets be personal or 
 real, or both : and a decree obtained in such a suit, determining 
 as it does an executor's power of preference, though not inter- 
 fering with the legal priority of the debts, is the usual means of 
 obtaining an equal distribution of an insolvent estate. 
 
 (iii.) An " administration summons," if he seeks to have the 
 4 whole (z) or part (A) of the personal estate administered, although 
 
 the deceased were a married woman (1), or if all the realty is 
 devised to trustees for sale empowered to give receipts for the 
 rents and produce of the sale (w). Such a summons is obtainable, 
 as of course, from the Master of the Rolls or a Vice-Chancellor, 
 requiring the representative to attend at Chambers, and show cause 
 why an order should not be had for the administration of the 
 estate, which order shall have the force and effect of, and the 
 same proceedings shall be had thereon as on, a decree made in a 
 cause (n). If more than one such order be applied for, the Judge 
 may give it to which applicant he chooses (o). 
 
 Ne exeat. (iv.) The Creditor may also obtain a ne exeat regno (p) on 
 
 an affidavit of assets received {q), on the same grounds as in 
 vita. 
 
 Injunction. (j.) The representative may also obtain an Injunction by motion, 
 
 in the Creditor's suit, any time after a decree or administration 
 order, to restrain a co-Creditor from proceeding at Law against 
 him ; and the Creditor so restrained will be ordered to come in and 
 prove his debt in Equity along with the others. But if the 
 executor be under a liability at Law to the Creditor from a 
 Judgment which affects him personally, the Court of Chancery 
 will probably not restrain him (r). 
 
 Nor will he be so restrained, if he has gone so far w^ith his 
 legal remedy as to have succeeded in issuing a Ji. fa. in the 
 
 (;,) Ante, p. 283. (?j) Ibid, 
 
 (i) 15 & 16 Vict, c. 8C, s. 45. (o) Ibid. 
 
 (A) Ashley v. Sewell, 10 Hare, App. (p) Ante, p. 193. 
 
 Ixvii. (?) Anon. 2 Ves. sen. 489. 
 
 (i) Ibid. (0 Kent v. Pickering, 5 Sim. 559 ; 
 
 (m) 15 & 10 Vict. c. 86, s. 47. Vincent v. Godson, 3 De G. & Sm. 717.
 
 SPECIALTY AND SIMPLE CONTRACT CREDITORS. 297 
 
 deceased's life, though he did not place it in the Sheriff's hands 
 till after the death (s). 
 
 This at first sight does not seem to be a Creditor s remedy ; 
 but as the suit is often instituted by a friendly Creditor, it often 
 becomes so in point of fact. 
 
 Although the Dower Act (3 & 4 Will. 4, c. 104) makes all the 
 debts of a husband to which his land shall be liable, valid as 
 against dower, the Master of the Rolls has held that the widow's 
 right is paramount to that of the Creditor ! (0- 
 
 The heir taking the profits of real assets descended becomes 
 himself a Debtor, and his executor shall be liable to the Creditor 
 in Equity (m) ; and so as to the devisee. 
 
 Where the assets are insuflScient to pay both debts and legacies, Refunding 
 an unsatisfied Creditor may follow them in the hands of the ^^^^'^• 
 legatee and compel him, by suit in Equity, to refund, whether creditors 
 the legacy was paid to him by the executor voluntarily or com- v. 
 
 pulsorily {v), or in ignorance of the Creditor's demand {x), and 
 even though the Creditor does not come in and prove within the 
 specified time (?/). 
 
 And the same is Law, where the assets were sufficient at the 
 death for both legacies and debts, but have since become 
 insufficient (^z). 
 
 Specialty and simple contract Creditors have also been decreed 9^J^^^*°" 
 to refund pro rata, that is, to an amount bearing the same pro- 
 portion to their entire claim, as the amount distributed among 
 them respectively bore to the entire fund distributed (a). 
 
 And where an executor pays away assets to legatees, he will be 
 personally answerable, both at Law and in Equity (6), to a Cre- 
 ditor claiming a debt under a contingency happening subsequently 
 to the payment. If the contingency arise in respect of a lease 
 the executor will, as we liave seen, not be liable for distribut- 
 ing the residue, though the lessor's right to follow the assets is 
 not prejudiced. 
 
 The object of Sir G. Turner's Act (c), — which, however, has Sir G. Turner'a 
 been much superseded by the proceeding by administration sum- 
 mons and by 22 & 23 Vict. c. 35, — was to indemnify executors 
 
 {s) Rankin v. Harwood, 5 Hare, 215. (a) Wms. Exors. 1308. 
 
 (0 Spyer u Hyatt, 20 Beav. 621. (a) Ibid. 1217 ; Todd v. Studholme, 
 
 (m) Richardson v. Horton, 7 Beav. 3 K. & J. 324. 
 
 123. {h) Pearson v. Archdeaken, 1 Alcock 
 
 (y) March v. Russell, 3 M. & Cr. 31. & Nap. 23. 
 
 (,r) 22 & 23 Vict. c. 35, s. 29. (r) 13 & li Vict. c. 35. 
 (v) Greig i-. Sonierville, 1 R. & M. 338. 
 
 u 5
 
 298 
 
 COMPULSORY PAYMENTS. 
 
 Petition for 
 advice. 
 
 against the claims of Creditors. It enables them on petition, or 
 motion, — immediately, or at any time after probate or administra- 
 tion granted (c?), — to obtain an account of the debts and liabilities 
 affecting the personal estate of the deceased; an order for paying 
 debts allowed and unpaid, and for providing for certain liabilities 
 allowed and unprovided for (or an account of such debts and 
 liabilities) ; an appropriation and investment of monies towards 
 contingent liabilities ; an injunction — until the accounts are 
 taken {e) — against proceedings at Law against them ; and a pro- 
 tection (except as against contingent liabilities, for which no 
 appropriation has been made) in respect of payments made by 
 them (/). For monies paid away to legatees in an administration 
 suit, a Creditor cannot affect the executor at all {g). 
 
 An executor or administrator may obtain, on petition, without 
 suit, or by summons on a written statement, the advice of any 
 Chancery Judge as to the management or administration of the 
 trust property or the assets, and shall be indemnified if he acts 
 on such advice, unless he obtained the advice fraudulently ; the 
 costs to be in the discretion of the Judge (A). 
 
 Marshalling. 
 
 Creditors 
 inter se. 
 
 Section 3. 
 Marshalling — Tacking — Order of Payment of Debts — Release 
 
 of Debts. 
 
 Marshalling. 
 
 Creditors inter se. 
 
 V. Legatees. 
 Tacking. 
 Order of Payment of Debts. 
 
 Out of Legal Personal Assets. 
 Wases. 
 
 Out of Statutes and Recognizances. 
 Legal Real Assets. 
 Equitable Assets. 
 Foreign Assets. 
 Interest on Debts. 
 Release of Debts. 
 
 By the doctrine of Marshalling, — which applies to cases inter 
 vivos {i), as well as to the administration of assets, but which, 
 since 3 & 4 Will. 4, c. 104, has made real assets liable to simple 
 contract debts, appears of practical importance, at least as between 
 Creditors, only in cases where there are equitable assets, — a Cre- 
 ditor having two funds to resort to, may be driven upon one 
 only, if by resorting to the other he would disappoint another 
 Creditor. Thus a Specialty Creditor, if he be partly paid out of, 
 and thereby exhausts, the personal assets, to the exclusion of a 
 simple contract Creditor, (as he has a right to do,) shall not have 
 
 (rf) 23 & 2i Vict. C.38, s. 14. 
 (e) Ibid. 
 
 (/) 13 & 11 Vict. c. 35, ss. 19, 22, 
 23, 24, 25. 
 
 (g) Dean v. Allen, 20 Beav. 1. 
 (h) 22 & 23 Vict. c. 35, s. 30. 
 (i) Post, Division II.
 
 MARSHALLING TACKING — ORDER OF PAYMENT OF DEBTS, ETC. 299 
 
 any further satisfaction (as but for this doctrine he might have 
 had) out of the deceased's equitable assets, until the other Creditor 
 shall thereout be made up equal to him (I). 
 
 So, to put another example, if the Specialty Creditor had been 
 paid in part out of the descended real estate of his Debtor, he 
 shall not be paid out of real estates devised to pay debts (which 
 are equitable assets), without accounting for what he has so 
 received {tn). 
 
 And as the 3 & 4 Will. 4, c. 104, does not apply to Debtors 
 dying before 29th Aug. 1833, it is possible a question of mar- 
 shalling 7nai/ still arise as between claimants to legal assets. 
 
 Upon a similar principle, where some legatees have been paid. Creditors 
 and a fund is still in Court for the benefit of unpaid legatees, a , "• 
 
 lefftitccs* 
 
 Creditor shall only recover against the latter a proportionate 
 part, and must seek payment of the rest from the paid legatees (n). 
 
 So, if the general personal assets alone are insufficient wholly 
 to discharge the lien of a vendor for unpaid purchase-money (o), 
 (who is a Specialty Creditor,) he may not prove and be in part 
 paid out of them, and yet reserve his lien against the purchased 
 estate, as against Simple Contract Creditors of the purchaser, 
 but must bring what he has received into hotchpot (p). 
 
 But if the mortgage were legal, it seems he may (^y). 
 
 If the Creditor be by specialty binding the heir, and if he Tacking (r), 
 also have a mortgage on the deceased's real estate, the spe- 
 cialty and mortgage being for two separate advances, he is 
 entitled to insist that the heir or devisee (or the executor in 
 respect of a mortgaged term) (s), shall not redeem the one without 
 paying both debts (t), whether the bond precede (?0 or succeed the 
 mortgage in point of time {x) : but this right does not extend 
 against a purchaser of an equity of redemption from the heir 
 or devisee (y), or executor (z), nor against subsequent incum- 
 brancers (a), nor even against Specialty Creditors {b), for they 
 
 (Z) Haslewood v. Pope, 3 P. Wms. (t) Cliallis v, Casborne, 1 Eq. Ca. 
 
 323 (3rd ed.) Abr. 325. 
 
 (m) Chapman v. Esgar, 1 Sm. & G. (m) Windham i'. Jennings, 2 Rep. Ch. 
 
 575. 247, r. 128. 
 
 (n) David v. Frowd, 1 M. & K. (x) 2 Spence Eq. Jur. 72i. 
 
 210. (y) 2 Fonbl. Tr. of Eq. 272, n. 
 
 (o) Post, Divis. II., Pt. I., Ch. I. (z) 2 Spence Eq. Jur. 724. 
 
 (p) Selby V. Selby, 4 Russ. 336. («) 2 Fonbl. Tr. of Eq. 273, n. (w.) 
 
 {q) Mason v. Bogg, 2 M. & Cr.443. (6) Lowthian v. Ilasel, 3 Bro. '^ *" 
 
 (r) What is, ante, p. 74. 162. 
 
 {s) 2 Fonb. Tr. of Eq. 274.
 
 300 
 
 COMPULSORY PAYMENTS. 
 
 Order of pay- 
 ment, 
 
 " Due course 
 of adminis- 
 tration." 
 
 Out of personal 
 assets. 
 
 were not privies to the contract (d), and there is no reason in 
 the rule in natural justice; it is only to avoid circuity of actions (e). 
 Probably, since 3 & 4 Will. 4, c. 104, the same rule will apply, 
 where the mortgagee has also a simple contract debt, at least 
 where his claim to tack does not interfere with other Creditors, 
 although the reason for supporting such a claim, i. e. the avoiding 
 circuity, does not apply in his case (/). 
 
 I shall next proceed to point out the order in which debts 
 will be paid in Equity out of the legal personal assets, and it is 
 to be observed that the words " in a due course of administra- 
 tion," or " in a course of administration," inserted into decrees, 
 point to that order. Those words are, it is true, inserted in 
 decrees for the administration of equitable as well as of legal 
 assets ; and such a direction, it has been held in an old case (g), 
 does not confine such application to a legal course, but is to be 
 taken distributively, and understood of legal or equitable, 
 according to the nature of the assets. But in a later case (/«), 
 where the assets were equitable, such a direction was agreed to 
 be got rid of by a petition of rehearing; and therefore must 
 have been admitted, it is presumed, to have been irregular. 
 
 A decree for an account of debts extends to equitable as 
 well as legal ones {i). 
 
 It is necessary, however, further to subdivide the administra- 
 tion of legal assets, into those which are personal and those 
 which are real, for as we shall see by comparing the two, the 
 order of payment of some debts will vary according as the 
 assets are legal personal or legal real. And first, then, of the 
 order of payment out of legal personal assets. 
 
 1. Expenses of funeral according to the degree and quality 
 of deceased (k). 
 
 % Expenses of Probate or Administration (/). 
 
 3. Costs of suit in Equity {m). 
 
 4. Costs of suit in the New Court of Probate (w). 
 
 5. Crown debts by record, or (which is in fact the same thing 
 
 in this case) (o) by specialty (p). 
 
 (d) Sharpnell v. Blake, 2 Eq. Ca. Abr. 
 
 cot. 
 
 (e) 3 Bro. C. C. 163. 
 
 (/) 2 Spence Eq. Jur. 725. 
 (g) Hartwell v. Chitters, Ambl. 308. 
 (h) Bailey v. Ekins, 7 Ves. 323; 
 Seton, 128. 
 
 (j) Payntert). Houston, 3 INIer. 302. 
 
 (/c) 3 Inst. 202. 
 (0 Ibid. 
 
 (m) Major V. Major, 2 Drew. 281. 
 (h) Ibid. 
 
 (o) 33 Hen. 8, c. 39, s. 53 ; post, 
 Divis. 11., Part III. 
 (p) Wms. Exors. 893.
 
 MARSHALLING — TACKING — ORDER OF PAYMENT OF DEBTS, ETC. 
 
 301 
 
 6. Debts which any private Acts of Parliament declare shall 
 
 be paid before " any other debts" {<j), but which under 
 those words would (perhaps) not be preferred to Crown 
 debts (r). 
 
 7. Those final decrees of Courts of Equity (s), which are 
 
 equivalent to Judgments (0 and final Judgments (m) of 
 Inferior or Superior Courts of Record {x), adverse or non- 
 adverse, pari passu, without regai'd to their respective 
 dates ( y). 
 
 8. Statutes and enrolled recognizances (z) pari passu, without 
 
 regard to their dates (a), although the day for payment be 
 not arrived (h). 
 
 9. Debts certain for value (even though future) (c) by specialty, 
 
 whether binding the heir or not, (including unenrolled 
 recognizances (d), mortgage debts, where there is a 
 covenant in the deed ^e), and breaches of trust when 
 the trustee has executed, and there is a covenant raised 
 in the, deed) (f) — pari passu {g). 
 
 10. Crown debts by simple contract {h). 
 
 11. Debts to subjects by simple contract (i), (with perhaps (j) 
 
 a preference to labourers' and servants' wages), including 
 mortgages (where there is no covenant to pay) {k), 
 devastuvits (/), and breaches of trust, where the trustee 
 has executed the deed, and there is no covenant raised 
 in it {m) ; and rent of land out of England. 
 
 12. Voluntary judgment, and specialty, debts, joari passu. 
 
 13. Dilapidations, where deceased was a beneficed clerk. 
 
 {q) Ibid. 895. 
 (r) 6 Ves. 99. 
 (s) Wms. Exors. 905. 
 (<) What are, ante, p. 6. 
 (k) Wms. Exors. 898. 
 («) Ante, pp. 6, 7. 
 (y) Wms. Exors. 904'. 
 (a) Ibid. 905 ; what these are, post, 
 p. 302. 
 
 (a) Ibid. 909. 
 (6) Ibid. 919. 
 (e) Ante, p. 1. 
 
 (d) Wms. Exors. 906. 
 
 (e) Ibid. 918. 
 
 (/) Adey v. Arnold, 2 De G., M. & 
 G. 437 ; 1 Drew. 477. 
 
 {g) The MJorrfs "covenant" or "agree" 
 
 in the deed arc not necessary to make 
 it a specialty. A declaration by the 
 trustee that he will stand possessed is 
 enough. But acting under it is not 
 enough (to make it a specialty); he 
 must have executed it ; Richardson v. 
 Jenkins, 1 Drew. 477. 
 
 (/)) 3 Bac. Abr. Exors. L. (2); what 
 these are, post, Divis. II., Part III. 
 
 (i) Wms. Exors. 923. 
 
 ij) 2 Blackst. (Steph.) 205. 
 
 (A-) Ancaster (Duke of) v. Mayer, 
 1 Bro. C. C. 464. 
 
 (/) Charlton v. Low, 3 P. Wms. 
 330. 
 
 (m) 2 De G., M. & G. 438. 
 
 u 7
 
 302 COMPULSORY PAYMENTS. 
 
 AVages. Touching wages, a hiring, if there be no special agreement 
 
 as to time, of a servant by a master, is for a year certain. But 
 a hiring by piece-work, or to do a certain quantity of work, is 
 not a yearly hiring. In case of menial or domestic servants, — 
 a governess is not one, and 'month" means generally, in matters 
 temporal, a lunar month (n) — the contract is dissoluble by a 
 month's warning or v/ages ; and a general hiring " at weekly 
 wages," or at " so much per week, so long as the master shall 
 want a servant," or they " shall agree," are weekly hirings. If 
 the master dismiss a servant, hired generally, without cause, the 
 latter will be entitled to the year's wages, but will, on the other 
 hand, forfeit all his wages, if he leaves without cause, or be dis- 
 missed during his term of service for misconduct (o). 
 
 The Act of 1 & 2 Will. 4, c. 37 (which does not apply to 
 domestic servants or sei'vants in husbandry) requires the wages 
 of artificers, workmen, labourers, and others employed in the 
 manufactures, trades, and occupations specified therein, to be 
 paid in current coin, or, if the artificer consents or allows, bank 
 notes ; and the 5 Geo. 4, c. 96, and 1 Vict. c. 67, regulate the 
 mode of settling disputes between masters and woi'kmen. 
 
 Although with the exception of Recognizances to the Crown 
 in the nature of a Statute Staple, of which more hereafter — 
 Statutes and Recognizances are neai-ly, if not quite, obsolete, yet 
 as they are still legal securities, a few words explanatory of their 
 nature should be given. 
 Statutes A Statute is either a Statute Merchant or Statute Staple ; the 
 
 Merchant. former is a bond of record, acknowledged before the Mayor of 
 London, or chief Warden of some other city or town, or some 
 other persons chosen and sworn for that purpose, or before a 
 Clerk of the Statute Merchant nominated by the Crown (/?). 
 Though originally designed as a security for merchants only, 
 it was frequently entered into by other persons ; its advantage 
 being, that on failure of payment by the Debtor, execution might 
 be immediately awarded {q). 
 Staple. A Statute Staple was also a bond of Record, but acknowledged 
 
 before the Mayor of the Staple. This was also originally de- 
 signed for those who attended the staple for purposes of mer- 
 chandize ; but in time others began to adopt it, until the 23 
 Hen. 8, c. 6, s. 11, confined it to those for whom it was formerly 
 intended (r). 
 
 (») Todd V. Kt.llage,22 L. J.,Exch. 1 ; nell) ; and 13 Ed. 1, st. 3. 
 
 Vin. Abr."Tiii)e" (C) 12. (q) Coote on Mortgages, (3rd ed.)74. 
 
 (o) Smith's Merc. Law. (r) 27 Ed. 3, st. 2, c. 9 ; Prid. Judg. 
 
 (;)) 11 Ed. 1 (statute of Acton Bur- 146.
 
 MARSHALLING — TACKING— ORDER OF PAYMENT OF DEBTS, ETC. 303 
 
 Recognizances are either simple, or in the nature of a Statute Recognisances. 
 Staple. 
 
 The former are obligations of Record epterecl into before a Simple. 
 Court of Record, or a Magistrate duly authorized, and may be 
 entered into either to the Crown or to a private individual, 
 whereby one acknowledges to owe the Queen or a private 
 person (as the case may be) a certain sum of money, with a 
 condition to be void, if he shall do some act, as if he shall appear 
 at the assizes, keep the peace, or pay a debt (s). But to consti- 
 tute debts of Record they must be enrolled (f). 
 
 The latter are the same as a Statute Staple, only open to and In nature of 
 to be used by all persons, and acknowledged before other per- ^ " ^ ''^' '" 
 sons, i. e., the Chief Justice of Queen's Bench or Common Pleas, 
 or, in their absence, out of term, the Mayor of the Staple at 
 Westminster and the Recorder of London jointly, and must be 
 subscribed by those persons and sealed with the seal of the 
 Conusor, the King's seal, and the seal of the Chief Justice, or 
 the seals of the Mayor and Recorder {u). If deficient in the for- 
 malities required, they rank only as bonds {x). 
 
 The order of the payment of debts out of Legal real assets Out of Legal 
 will be the same as that out of Legal personal assets, except in ^^^ 
 the following cases : — 
 
 L Judgments and Decrees will be paid, inter se, if registered, 
 according to the dates of their registration (y), 
 
 2. Statutes and enrolled Recognizances will be paid inter se, 
 
 according to their priorities of date {z). 
 
 3. Specialty debts, in which the heirs are bound, are (there 
 
 being no will charging debts on the real estate) preferred 
 to Specialty debts in which the heirs are not bound (a). 
 
 Suppose that a testator dies domiciled, and leaving assets, in Foreign assets. 
 a country where priority of debts is recognized, leaving other 
 assets in another country where no such priority is recognized, 
 and that administration is taken out to him in both countries, — 
 according to Mr. Justice Story {h), tlie Law of the country where 
 the executor acts shall govern the administration of them ; i. e., 
 in the case put, the debts shall be paid to the Creditors proving 
 
 (s) 2 Blackst. (Stcph.) 135. (y) 18 & 19 Vict. c. 15, s. 4. 
 
 (t) Glynn v. Thorpe, 1 B. & Aid. («) Wms. Exors. 909. 
 
 153. (a) Richardson v. Jenkins, 1 Drew, 
 
 (u) 23 Hen. 8, c. 6. 477 ; 3 & 4 Will. 4, c, 104. 
 
 (a) Wms. Exors. 908. (6) Conflict of Laws, s. 524 (2nd ed.).
 
 304 
 
 COMPULSORY PAYMENtS, 
 
 Does dotnicil 
 or sihis deter- 
 mine adminis- 
 tration ? 
 
 Equitable 
 assets. 
 
 Interest. 
 
 in one country pari passu, in the other preferentially. However, 
 the present Master of the Rolls thinks that the Law of the domicil, 
 and not that of the situs, should prevail, and govern the whole ad- 
 ministration {d) : and Vice-chancellor Kindersley has held, where 
 the domicil was Irish, that an Irish Judgment should be paid 
 out of Irish assets remitted here, preferentially to English simple 
 contract debts (e) ; and that if the executors in the two countries 
 were different persons, the duty of each would be to pay the debts 
 owing in the country in which he was executor, and then if there 
 was a surplus, send it to the other country (/). 
 
 If the assets are equitable, all debts including dilapidations (g) 
 shall be paid out of them pari jjassu (//,), except Judgment debts, 
 which shall retain their priority (i). 
 
 Interest on debts, at Law, during the Debtor's life, has been 
 already considered. The same rules apply to cases in which 
 the Creditor recovers his debt at Law after the death. The 
 rule of the Common Law was, before 3 & 4 Will. 4, c. 42, (and 
 that act does not break it) (/), that the Law does not imply a 
 contract on the Debtor's part to pay interest on the sum he 
 owes, though the debt be in writing and of a fixed amount, and 
 may have been frequently demanded (k). But interest was, 
 without any express contract for it, payable upon mercantile 
 securities, as bills and notes, after the rate current where the 
 contract was made (/), or where there was a special usage of 
 trade for the allowance of it, and on over -due money bonds to 
 the extent of the penalty (w); or where in previous dealings 
 between the same parties it had been mutually claimed and 
 allowed ; and, of course, wherever it was expressly contracted 
 for. In the case of bills or notes made payable with interest, it 
 runs from the date ; if they are silent as to it, from the day they 
 become due (n). 
 
 Then came the 3 & 4 Will. 4, allowing juries to give interest 
 on debts certain, without impairing the old Law in other respects ; 
 and the I &2 Vict. c. 110, s. 17, allowing interest on Judgments 
 at 4/. per cent. (o). 
 
 (f/) Wilson V. Lady Dunsany, 18 
 Beav. 293. 
 
 (e) Cook V. Gregson, 2 Drew. 286. 
 
 (/) Ibid. 285. 
 
 (g) Bissct V. Burgess, 23 Beav. 281. 
 
 (/i) Ante, p. 291. 
 
 (i) 2 Jarm. Wills, 525 ; 2 White & 
 Tud. L. C. 85. 
 
 (j) Sect. 28, suhfinem. 
 (/f) ChittyonContracts, 5G3 (5th ed.) 
 (/) Addison on Contracts, US'!. 
 (w) 2 Blackst. (Stcph.) 93. 
 («) Ibid. 
 
 (o) As to pawnbrokers' interest, post, 
 Division IL, Book I., Ch. IL
 
 MARSHALLING — TACKING— ORDER OF PAYMENT OF DEBTS, ETC. 305 
 
 The following classes of cases, therefore, viz.. At Law. 
 
 1. Cases of express contract for interest, 
 
 2. Bills or notes, or other mercantile securities whereon in- 
 
 terest is usual, 
 
 3. Over-due Money Bonds, 
 
 4. Judgments, 
 
 may be considered, undoubtedly, as debts which " bi/ Law carry 
 interest ;" an expression we shall see it is important to have a 
 clear idea of. 
 
 Now in Equity the rule is as follows :— In Equity. 
 
 1. With respect to debts which 'Ulo noV' (i. e., do not by Law, 
 as explained above) " carry interest." 
 
 The Creditor, having established his debt before a Judge in 
 Chambers, shall be entitled to interest upon it, at the rate of 4/. 
 per cent., from the date of the decree or order, out of any assets 
 that may remain after satisfying the costs of the suit, the debts 
 established, and the interest of such debts as by Law carry 
 interest {p). And in every case of a decree or order directing an 
 account of the debts of a deceased Debtor, unless otherwise 
 ordered, interest shall be computed on all debts other than 
 those which carry interest, after the rate of 4/. per cent, from the 
 date of the decree or order (q). The difference between the two 
 Rules seems to be, that under Rule 9 the computation of interest 
 is ordered in every case within it, thereby forming part of the 
 decree; whereas Rule 10 amounts only to a declaration that the 
 Creditor is entitled to such interest, and of the order in which 
 the assets should be applied towards it. 
 
 2. With respect to debts which by Law carry interest. 
 Where a decree or order is made, directing an account of 
 the debts of a deceased person, (unless otherwise ordered,) 
 interest is to be computed upon such debts, after the rate they 
 respectively carry, from the time such interest is legally due (r). 
 
 By further comparing the two above-mentioned Rules it would 
 also appear, that interest on debts carrying interest at Law will 
 not be paid until the debts which do not carry interest at Law 
 are paid, but will be paid before interest on such last-named 
 debts. 
 
 A representative voluntarily paying debts may pay interest on Voluntary 
 such debts as by Law carry interest, and will be allowed such Payment of 
 payment in his account in Equity, or on a plea of j)len^ ad- '"'''"'^" 
 
 (/)) 42 Consol. Ch. Old. Rule 10. (r) Ibid. 
 
 (q) Ibid. Rule 9.
 
 106 
 
 COMPULSORY PAYMENTS. 
 
 Release. 
 
 Debtor- 
 legatee. 
 
 ministravit at Law. And, generally, it would seem the test 
 of a rightful voluntary payment is the same as that of a rightful 
 compulsory one. 
 
 In some cases a Creditor releases his debt by accepting the 
 office of executor to his deceased Debtor : this is the case where 
 there are assets in the executor's hands (s). This, however, 
 applies only to Law. In Equity the appointment is no release, 
 and the executor still remains liable and accountable to the 
 legatees for the debt owing from him, as part of the assets {t). 
 
 And the same is Law where the Creditor takes out adminis- 
 tration (m), or is one of several executors (x), and administers ; or 
 where one of several joint and several Debtors appoints the 
 common Creditor his executor (r/). 
 
 This release or extinguishment is, however, compensated by the 
 right of retainer {z) ; and, it will be observed, is never forced on 
 the Creditor, for the Law will not compel him to accept a release 
 against his will. So that if he choose to refuse to be executor 
 and does not administer, he is not, by being merely named 
 executor, incapacitated from suing for his debt. 
 
 Again, supposing that a Creditor bequeaths a money legacy 
 to his Debtor, does he thereby extinguish or remit the debt ? 
 
 This case, wearing the double aspect of debt and legacy, 
 cannot, as we have seen, become a question in any but a Court 
 of Equity, What is the doctrine of that Court upon it? The 
 rule seems to be this, that it shall not be treated as an extin- 
 guishment, unless clear evidence is producible from the will, or 
 dehors it, that such was the testator's intention (a). A bequest 
 of the debt is not strictly a release of it, but a legacy; which will 
 lapse by the death of the legatee before the testator (6), in which 
 case the executor of the legatee must pay the debt. 
 
 ( .s) Wankford v. Wankford, 1 Salk. 304. 
 (/) Cases collected in 5 Jarni. 795. 
 («) Wins. Exors. 11S8. 
 (.)•) Ibid. 1187. 
 
 (y) Locket). Crosse, cited 1 Salk.o05, 
 
 (3) Ante, p. 278. 
 
 (ff) Wms. Exors. 473. 
 
 (A) Maitland v. Adair, 3 Ves. 231.
 
 ( 307 ) 
 
 CHAPTER III. 
 
 LIABILITY OF REPRESENTATIVE TO CREDITORS FOR ACTS DONE 
 BY HIMSELF AS SUCH. 
 
 Section 1. 
 Rightful Acts. 
 
 Promises srenerally. 
 Promise to answer Damages. 
 Consideration. 
 Funeral Expenses. 
 
 Executor of Termor. 
 
 Carrying on Trade. 
 
 Personal Decree against Executor, 
 
 The liability of a representative, in respect of the acts of the Promises 
 deceased having been considered, let us next proceed to consider 
 his liability in respect of those done hy himself, but done by him 
 in his capacity of representative. 
 
 Modern authorities seem to have established that a promise 
 by him in that capacity will, in several instances, charge him no 
 further than a promise made by the deceased would ; that is, 
 will not charge him personally (a). But it must be confessed it 
 is not very clear what are the " several instances," in which the 
 Creditor's rights will be so construed. 
 
 For example, a count averring that defendant was indebted, 
 as executor, to the plaintiff for so much money "lent" to him as 
 executor {b), or " hud and received'' by him as such to the use of 
 the plaintiff(c), alleging that the executor, as such, promised 
 to pay, has been held to charge him de bonis propriis ; whereas 
 a count averring that the defendant, as executor, was indebted 
 to the plaintiff" for so much " money promised to be paid" to 
 the plaintiff" by the defendant, as such executor {d), or alleging 
 a promise by him, in consideration of an account stated between 
 them, to pay the balance, charges him only in his representative 
 capacity (i. e., as far as the assets extend) (e). 
 
 A promise by the representative to answer damages out of his To answer 
 own estate, or to pay a debt of the deceased, must, to charge him ^^"''^ses, &c. 
 personally, be in writing signed by himself or his authorized 
 agent (/), and be for a sufficient consideration (y). If there be 
 
 {a) Wins. Exors. Ifi05. 
 
 {b) Kose V. Bowler, 1 H. Black. 108. 
 
 (c) Ibid. 
 
 {d) Dowse V. Cox, 3 BiMgh. 20. 
 
 (e) Ashby v. Ashby, 7 B. & C. 414. 
 (/) 29 Chas. 2, c. 3, s. 4. 
 ig) lleecli V, Keniiegal, 1 Ves. sen. 
 125. 
 
 X2
 
 308 
 
 LIABILITY OF REPRESENTATIVE TO CREDITORS, ETC. 
 
 Consideration. 
 
 Funeral ex- 
 penses. 
 
 Executor of 
 Termor. 
 
 no sufficient consideration, the promise is " nudum pactum^'' and 
 not personally binding on him ; charging him only to the extent 
 of the assets in his hands. 
 
 Forbearance by the Creditor to sue is a good consideration (Ji) ; 
 and so is a promise to pay, as executor, on demand with 
 interest (i), (for that is a compensation for forbearance) ; so are 
 assets come to his (h) hands. The consideration, as well as the 
 promise, must be in writing (/). 
 
 A representative ordering, or concurring in the order foi', 
 funeral expenses, is liable personally to the undertaker on his 
 own contract (m) ; and so he is, if he has assets, without such an 
 order, upon his implied contract, where no other person has 
 become liable on an express one (n) : and so he is, if he accepts 
 or makes a Bill or Note for a debt of the deceased (o). So he is 
 personally answerable for goods sold and delivered to, or work 
 done for, him though as executor ; for no goods can be sold to, 
 nor work done for, another in his representative capacity (p). 
 
 If the representative of a lessee enters on the demised pre- 
 mises, — an entry may be implied from acts (q), — the lessor may 
 either sue him at Law, as executor, for rent accrued since the 
 death, or charge him personally in respect of profits; and though 
 he do not enter, he is still liable for such rent, as far as he has 
 assets (r). But "he may discharge himself from all personal 
 liability, by alleging he is not assignee otherwise than by being 
 executor, and that he has never entered or taken possession ; and 
 from all liability as executor, by alleging the term to be of no 
 value, and that he has no assets" (s). 
 
 If the rent was wholly due before the death, the action must 
 be against the executor in his representative character. An 
 executor distributing the residuary personal estate, without 
 apportioning any part of the personal estate to meet future 
 liabilities under his testator's lease, or agreement for a lease, is 
 not personally liable for such liabilities, if he has set apart 
 a sufficient sum to answer any claim in respect of any ascer- 
 tained sum, which the lessee is liable to lay out on the property. 
 
 (//) Ibid. 
 
 (i) Childsy.Monins, 2 Brod. & Bingh. 
 460. 
 
 (k) 1 Ves. sen. 125. 
 
 (/) Saunders v. Wakefield, 4 B. & 
 Aid. 595. 
 
 (m) Wins. Exors. 1621. 
 
 («) Rogers v. Price, 3 Y. & J. 28. 
 (o) Smith's JNIerc. Law, 229. 
 (p) Corner v. Shew, 3 M. & W. 355. 
 («7) Doe V. Wood, 2 B.& Aid. 72K 
 (r) Wms. Exors. 1588. 
 (.5) Per Tindal, C. J. Wollaston v. 
 Hakewill, 3 M. & Gr. 297.
 
 RIGHTFUL ACTS. 309 
 
 But the lessor may follow the assets into the hands of the 
 legatee (t). 
 
 As in cases of debts generally, the Creditor's proceedings 
 against the representative in respect of his own personal liability 
 for rightful acts will be generally at Law. 
 
 Unless under Order of the Court of Chancery, or under the Carrying on 
 most positive authority given in the will, sanctioning the con- 
 tinuance of the trade or business of his testator (m), the executor 
 upon a failure of assets is personally liable for debts thereby 
 incurred in its continuance (x) ; but mere buying, to dispose of 
 the business more advantageously, or as soon as it can be dis- 
 posed of; or mere completion of works, which the deceased 
 undertook to complete (i/) ; or carrying the trade on unpi'oduc- 
 tively, if to the best of his judgment (_z), will not make him per- 
 sonally liable. 
 
 Where the debtor dies equitably indebted, the Creditor does Personal de- 
 not, by obtaining a personal decree against the executor for '^'^^^ agains . 
 payment, waive his right against the assets, whether the decree 
 was right or wrong ; and will be preferred, as against the assets, 
 to a prior Judgment Creditor of the executor («). 
 
 Section 2. 
 Wrongful Acts. 
 
 His own Wrongful Acts. j Interest on Devastavits. 
 
 Legal Devastavits. Co-Executors and co- Trustees distin- 
 
 Eqiiitable Devastavits. suished 
 
 Wrongful Acts of co- Executor. o ^ /■ , . . 
 
 "a. t i>tatute oj Limitations. 
 
 In Equity. 1 Bankrupt and Insolvent Executor. 
 
 A representative may, as we have seen, be answerable per- His own 
 sonally to Creditors of the deceased, even for acts done to the ^'"""S " '^cts. 
 best of his judgment, or in the conscientious discharge of his duty. 
 Much more is he so for wrongful acts. These acts are known 
 in legal language as devastaints, or acts whereby he has " wasted" 
 or squandered the assets. 
 
 Again, this result may be occasioned, not only by acts of direct 
 and intentional abuse, but also by such acts of negligence and 
 wrong administration as will disappoint Creditors of their 
 
 (<) 22 & 23 Vict. c. 35, s. 27. (s) Garrett v. Noble, 6 Sim. 50 1. 
 
 {u) Kirkman v. Booth, 11 Beav. 273. (a) De Sorbein v. Bland, 2 De G. & J. 
 
 (j) Wnis. Exors. 1()25. 158. 
 (j/) Ibid. 1560, 1627.
 
 310 
 
 LIABILITY OF REPRESENTATIVE TO CREDITORS, ETC. 
 
 Legal devas- 
 tavit. 
 
 Equitable 
 devastavit. 
 
 debts (c), or even by a concurrence, either express or implied, 
 in such abuse, or acts of negligence, by his co-executor. 
 
 His liability at Law is of the severest kind. For a Court of 
 Law, acting strictly upon the rule, that he is chargeable for assets 
 once actually received and come into his hands, v.'ill not extend 
 to him the excuse, which it affords to ordinary agents and 
 bailees, as where the loss arises from inevitable accident, as 
 destruction by fire, loss by robbers, or the like, or reasonable 
 confidence disappointed ; but will hold him liable personally for 
 even such inevitable losses (d). The act of devastavit con- 
 stitutes (as has been said) a simple contract debt due from the 
 representative, for which at Law the Creditor possesses the re- 
 medy of an action of trespass (e) (extended by 30 Car. 2, c. 7, 
 and 4 & 5 Will. & Mary, c. 34, s. 12, against an executor of 
 an executor) ( /), which must be brought within six years (g). 
 
 In Equity, however, a more lenient doctrine prevails, and the 
 executor will there be held liable only for some default in him. 
 What constitutes such default depends of course on the parti- 
 cular circumstances of each case, and can only be illustrated by 
 a few examples. 
 
 The instances in which a devastavit may occur in the view of 
 a Court of Equity, are, of course, as various as the nature of 
 human actions themselves ; they will, however, be found chiefly 
 to range themselves under the following heads : — 
 
 L An alienation of the assets by the representative, in order 
 to pay his oAvn debts (h). This is a devastavit at Law 
 also (i), unless the executor paid an equal amount of 
 the testator's debts, in their proper order, with his own 
 monies (A). 
 
 2. Where he sells the assets at an undervalue (Z). 
 
 3. Where he does not get in part of the estate outstanding 
 
 in an improper investment (w). 
 
 4. Where he makes unnecessary payments (w). 
 
 5. Where he releases or compounds debts (o) without autho- 
 
 rity to do so, unless perhaps it be done prudently for the 
 benefit of the estate (p). 
 
 (c) Bac. Abr. Exors. [L.] 1. 
 
 (d) Crosse v. Smith, 7 East, 24G. 
 
 (e) Tborne v. Kerr, 2 K. & J. 63. 
 (/) Ibid. 
 
 (g) Ibid. 64. 
 {h) Wms. Exors. 842. 
 (i) Merchant v. Driver, 1 Saund. 
 (Wms.) 307. 
 
 (k) Ibid, and 1 Phill. 470. 
 (l) Rice V. Gordon, 11 Beav. 265. 
 (m) Styles v. Guy, 1 M'N. & G. 422. 
 («) Shallcross v. Wright, 12 Beav. 
 558. 
 
 (o) Wms. Exors. 1632. 
 
 (p) Blue V. Marshall, 3 P. Wms. 383.
 
 M'RONGFUL ACTS. 311 
 
 6. Where he pnys an inferior debt before a superior one of 
 
 which he has notice, the assets being insufficient for both. 
 
 7. Where, having funds, he lets debts carrying interest run 
 
 on U/). 
 
 8. Where he assents to legacies, whilst debts are unpaid — 
 
 the assets being insufficient to pay both, — though lie has 
 no notice of them (r). 
 
 9. Lending on personal securities, even authorized by the 
 
 will (s); though (singularly) at Law this might not amount 
 to a devastavit (t), if the loan was a fair and reasonable 
 exercise of discretion. 
 
 10. Lending to a co-executor (but not to a stranger), though on 
 
 good real security («), and though empowered by the will 
 so to lend: or purchasing the assets from himself (^;). 
 
 11. Not converting, at the end of a year from the death, into 
 
 the Three per Cents., property bequeathed for life {w). 
 
 12. Loss occasioned by the failure of a banker, with whom the 
 
 assets have been deposited, and where no necessity can be 
 shown for the deposit (x). 
 
 13. Retaining the assets in hand instead of investing them (y), 
 
 unless he pays the debts with his own money to the 
 value of the assets so retained (z). 
 
 14. Not calling in money on personal securities (a), as bonds, 
 
 although authorized by the will to continue such invest- 
 ment, unless he has used a reasonable discretion in not doing- 
 so {b) ; and in some cases dropping a policy in which he 
 had, without special authority, invested the assets (c). 
 All these amount, if a loss ensues, in the eyes of a Court of Default. 
 Equity, to a default, for which the representative must answer 
 out of his own pocket to the amount to which loss can be proved. 
 Neither the fact that the testator trusted the Debtor without 
 security, nor the option in the will to the executors to call in 
 " as soon as conveniently may be," or " such parts (of the 
 personal estate) as they think proper," will excuse them {d). 
 
 (q) Hall D.IIallett, 1 Cox, Ui. & G. 255. 
 
 (r) Wms. Exors. 1207, lfi30. (s) 1 Saund. (Wms.)307. 
 
 (s) Ibid. 1640, n. (x.) (a) Powell v. Evans, 5 Ves. 839. 
 
 (t) Webster v. Spencer, 3 B. & Aid. (i) Buxton v. Buxton, 1 M. & C. 80. 
 
 360. (c) Garner v. Moore, 3 Drew. 277. 
 
 (m) Stickney v. Scwcll, 1 M. & Cr. 8. {d) Bullock v. Wheatly, 1 Coll, 135. 
 
 (v) 1 Cox, 131'. But would not an express power to them 
 
 (to) Dimes «;. Scott, 4' Buss. C.C. 195, to continue investments, though pre- 
 
 (.r) Darke v. Martin, 1 Boav. 525. ceded by a general trust for conversion 
 
 {!/) Bobinson t>. Robinson, 1 D. M. in anotlier part of the will, excuse them?
 
 312 LIABILITY OF REPRESENTATIVE TO CREDITORS, ETC. 
 
 If the executor be a pai'tner in a firm which owes the debt to 
 the testator, the parties beneficially interested may, on the in- 
 solvency of the firm, file a bill against him to make his separate 
 estate liable for a devastavit in not calling in the debt, although 
 the affairs of the firm are being wound up under a Deed of 
 Arrangement. And thus, in a sense, the parties beneficially 
 interested assume the character of Creditors, and have in the life 
 of their Debtor (the executor), contrary to the usual rule, a 
 locus standi in Equity. 
 
 The Court of Chancery, following the analogy of the Courts 
 of Law, requires the Creditor to sue in that Court for a de- 
 vastavit within six years {e). 
 
 There are some cases, too, in which Creditors may charge 
 representatives personally, where legatees could not (/). If, 
 through an unauthorized act on the executor's part, the tes- 
 tator's estate has not suffered, this would not amount to a 
 devastavit {g) ; any profit however will belong, not to him, but to 
 the parties beneficially entitled. 
 Wrongful With regard to the liability of co-executors for each other's acts, 
 
 executor'" ^^ \jayv the rule is as stringent, as if the co-executor had been a 
 
 At Law. stranger. Thus, if an executor, administering, has once received 
 
 assets, he cannot, if his co-executor has misapplied them by 
 retaining them to pay his own simple contract debt, discharge 
 himself, on an action against him by a bond Creditor of the 
 deceased, by showing that he paid the assets over to the co- 
 executor for the purpose of satisfying the bond Creditor, who 
 had himself applied to the co-executor for payment (A). 
 In Bank- Suppose one of the executors bankrupt, the Creditor may 
 
 Diptcy. prove under his commission, and what he can get thereby shall 
 
 be only pro tanto an extinguishment of his debt, since both 
 the executors are jointly liable for the entire sum, and he may 
 still resort for the remainder against the solvent executor. 
 In Equity. In Equity, the rule which used to prevail, that where an 
 
 executor (who may, be it observed, act separately from his 
 co-executor, and is not bound to join with his co-representative 
 in a conveyance or receipt for the sake of conformity, as a trustee 
 is) does so join with him, he shall be liable for a misapplication 
 by the latter, has been much relaxed in favour of representa- 
 tives. Joining is no longer of itself acting {i). It is, indeed, 
 
 (e) Thome v. Kerr, 2 K. & .1. 64. {g) Blue v. Marshall, 3 P. Wms. 383. 
 
 (/) Doyle V. Blake, 2 Sch. & Lefr. (/<) Crosse ti. Smith, 7 East, 246. 
 
 239. {i) Walker v. Synionds, 3 Sw. 64.
 
 WRONGFUL ACTS. 313 
 
 difficult to lay down any rule on this subject ; but it may be, 
 perhaps, stated to be this : that where hy any act done by one 
 executor, any part of the representative estate comes to the hands 
 of his co-executor, the former will be answerable for any de- 
 vaslavit by the latter, in the same manner as he would have been 
 for a stranger whom he had entrusted to receive it (A), unless he 
 was bound to hand it over as an agent of the other (J), for then 
 he had no legal right to retain it. Nor will the usual indemnity 
 clause in the will protect him (m). 
 
 The cases in which a Creditor may charge an executor per- Interest on 
 sonally with interest for acts of devastavit, admit of the same <^^'^s*^^'*s- 
 classification as the classes of devastavits themselves (n). 
 
 1. Where the executor improperly invests monies, or keeps a 
 balance in his hands dead, without apparent reason or necessity, 
 it becomes negligence in him, and he is chargeable person- 
 ally with 4/. per cent, interest on such balance (o) ; in some 
 instances with annual rests (p). 
 
 2. Where the executor has been guilty of a direct malfeasance 
 or breach of trust, he is chargeable personally, at 51. per cent, 
 interest, on the loss occasioned to the assets (q). And there 
 are cases of gross dereliction of duty, in which the Court has 
 decreed him to pay interest at 5/. per cent, with yearly rests (r). 
 
 The principles on which the Court proceeds have been thus 
 laid down: — If an executor has retained balances which he ought 
 to have invested, the Court will charge him with simple interest 
 at 47. per cent, on the balances ; if, in addition to such reten- 
 tions, he has committed a direct breach of trust, or if the fund 
 has been taken by him from a proper state of investment in 
 which it was producing 5/. per cent., he will be charged with 
 interest at 51. per cent. ; if, in addition to this, he has employed 
 the money so obtained by him in trade or speculation for his 
 own benefit, he will be charged either with the profits actually 
 obtained by him for the use of the money, or with interest at 
 51. per cent., and also with yearly rests ; that is, with compound 
 interest (s). 
 
 The distinction between the liability of co-trustees and co- Co-executors 
 
 (A) Wms. Exors. 1650; Styles v. 1G71, n. (m.) 
 Guy, 1 M'N. & G. 422. (p) Knott v. Cottee, 16 Beav. 77. 
 
 (/) Davis V. Spurling, 1 R. & M. 66. (q) Bick v. Motly, 2 M. &K. 312. 
 
 (wi) Dix V. Burford, 19 Beav. 413. (/) Williams v. Powell, 15 Beav. 461. 
 
 (m) Ante, p. 309. (s) Jones v. Foxall, 15 Beav. 388. 
 
 (o) Cases collected in Wms. Exors.
 
 314 
 
 LIABILITY OF REPRESENTATIVE TO CREDITORS, ETC. 
 
 Statute of 
 Limitations 
 
 and co-trustees executors is distinct and clear. There is no question but that, if 
 n, luguisie . ^^^ ^^ several executors receives part of the testator's property, he 
 alone is answerable for it, and his co-executors are not liable. 
 But (as M'here the testator bequeathed a specific legacy to his 
 executors upon trusts, and one executor received and misapplied 
 it, after an assent to it by both) " the moment the executors 
 assent to a bequest, they become trustees for their cestui que 
 trust. It is impossible to say Yells (the non-defaulting trustee) 
 was not a trustee ; because he could not accept the executorship, 
 ■svithout taking upon himself the trust ; they are inseparably 
 united. Having accepted the trust, the rule as to executors does 
 not apply" (s). 
 
 A Creditor suing the executor at Law, must sue within the 
 same time as he must have sued the deceased in (/). A Creditor, 
 bringing a single or general Creditor's suit in Equity, must bring 
 it (u), if his debt be a legal one, that is, one for which he might 
 have sued the executor or administrator at Law, within six years 
 of the cause of action, if it be a simple contract debt {v) ; or 
 within twenty, if it be a specialty debt or judgment {w) : and, as 
 at Law (x), if the statute has once begun to run against the debt, 
 between the time of the Debtor's decease and the appointment 
 of a personal representative, it continues to do so (y). But where 
 the Debtor is Sifeine coverte, the liability of her separate estate 
 to her engagements in the nature of simple contract debts is not 
 barred by the statute (c) ; upon the ground that all the separate 
 estate — whether real or personal — is a trust estate for payment 
 of debts, and a trust is not within the statute (a). 
 
 Where the will has created a trust or charge upon the real 
 estate for payment of debts, the statute has no application (J) ; but 
 where the trust is only upon the personal estate, the executor 
 may avail himself of it(c), for such a trust is nugatory, being no 
 more than the Law implies without it (<:/), and that, although the 
 testator has erroneously described his personalty, as if it was 
 realty, or declared his executor should not set up the statute (e). 
 
 (s) Dix V. Burfovd, 19 Beav. 412. 
 
 (i) Ante, p. 205. 
 
 («) Foley t;. Hill, 1 Phill. 399.. 
 
 Iv) 21 Jac. 1, c. 16. 
 
 («-) 3 & 4 Will. 4, c. 42, ss. 3, 40. 
 
 (j) Rhodes v. Smethurst, C M. & W. 
 351. 
 
 (y) Freakc v. Cranefeldt, 3 M. & Cr. 
 499. 
 
 (z) Vauglian v. Walker, 8 Irish Ch. 
 Reports, 458. 
 
 (a) Norton u.Turvill, 2 P. Wms. 144. 
 
 (6) Hughes V. Wynne, Turn. & 11. 
 307. 
 
 (c) Scott V. Jones, 4 CI. & Fin. 392. 
 
 ((/) Ante, p. 272. 
 
 (e) 4 CI. & Fin. 392.
 
 WRONGrUL ACTS. ' ' 315 
 
 Thougli an executor or administrator is allowed a year to pay Creditor may 
 lejjacies in, there seems no time allowed to him for payini^ debts in. j^^^^j 
 There is, therefore, nothing to prevent the Creditor from suing 
 him, either at Law or in Equity, as soon as he has proved, or 
 taken out administration (or even before), if he has acted (/). 
 
 The property of which one is possessed as representative does 
 not pass to his assignees in Bankruptcy or Insolvency. 
 
 Where the testator appointed an executor, knowing him to be Bankrupt and 
 bankrupt or insolvent, the Court of Chancery will not, on that representa- 
 ground alone, appoint, at the instance of a Creditor, a Receiver tives. 
 in his room {g) ; but if he become so after the death, it would 
 seem that it will, and will restrain him from collecting the 
 effects (A). And generally the Bankruptcy or Insolvency of a 
 Trustee is sufficient ground for his removal by the Court of Chan- 
 cery (i) ; by (in the case of his Bankruptcy at least) petition (A). 
 
 An executor may be made bankrupt in respect of debts con- 
 tracted by him in carrying on his testator's trade ij). 
 
 A bankrupt will not be entitled to Letters of Adminis- 
 tration (w). 
 
 If a sole executor be bankrupt, and indebted to the testator, 
 he may obtain an order from the Court of Bankruptcy, and prove 
 the debt under his own Bankruptcy {ni). 
 
 If he be one of several executors they may, without any such 
 order, prove under his Bankruptcy (o). 
 
 A devastavit by a bankrupt executor may be proved as a 
 simple contract debt under his Bankruptcy, by the parties 
 interested in the testator's estate {p). 
 
 If the deceased were an Insolvent within 1 & 2 Vict. c. 110, at 
 the time of his decease, his Scheduled Creditors have no claim 
 against his assets acquired subsequently to his discharge, either 
 at Law or in Equity, unless Judgment has been entered up on 
 his warrant of attorney before his death, such warrant having 
 expired by the death ; the remedy for the debt being gone, even 
 if the debt itself be not (ry ). 
 
 No such warrant is required from Insolvents within 5 ScG Vict. 
 or 7 & 8 Vict. 
 
 (/) Ante, p. 290. (m) Wms. Exors. 390. 
 
 {g) Stainton y. The Carron Company, (h) Ex parte Shaw, 1 Glyn & Jam. 
 
 ISBeav. 146. 127. 
 
 (/<) Wms. Exors. 206. (o) Ex parte Phillips, 2 Deac. 334. 
 
 (>■) Hill on Trustees, 552. {p) Ex parte Moody, 2 Rose, 413. 
 
 (/O 12 & 13 Vict c. 106, s. 130. (g) In re Moylan, IG.Beav. 220; 
 
 (0 Ex parte Garland, 10 Vcs. 119. ante, p. 286.
 
 ( 316 ) 
 
 Book II. 
 
 SEVERAL DEBTORS AFTER THE DEATH OF ONE. 
 
 CHAPTER I. 
 
 PARTNER AND NON-PARTNER DEBTORS. 
 
 Section 1. 
 Partners. 
 
 Partnerships. 
 
 Un-incorporate. 
 Quasi-Corporate. 
 
 Shares generally. 
 
 J. S. Acts, 1856, 1857. 
 
 Before winding up. 
 After winding up. 
 
 Winding-up Acts, 1848, 1849. 
 
 Banks. 
 
 Insurance Companies. 
 
 Companies vjithin 8^9 Vict, 
 c. 16. 
 
 Un-incorporate Next, let US suppose the debt due from partners ; and first, of 
 
 partnerships, pai'tnerships un-incorporate. 
 
 In Equity the death of one, is of itself a dissolution of such 
 partnership, though no notice be given of the dissolution (a). 
 And even though the partners agreed to its continuance by 
 their executors after the decease of any, his representative 
 
 In Equity. may sue in Equity the survivors for a dissolution, subject 
 to an action at Law by them against him for a breach of 
 the agreement (&). In the ordinary case of death working ipso 
 facto a dissolution, and the articles being silent about a con- 
 tinuance, the Creditor of the partnership should make the 
 representative of the deceased, a defendant in a suit against 
 the survivor ; the 7th Consolid. Ch. Order, Rule 2, (enabling 
 the plaintiff to proceed against one or all of several persons 
 who are jointly and severally liable), — like the 32nd Order, 
 August 1841, M'hich it has superseded, — not applying to the 
 case of a partnership (c). And it seems now the best opinion, 
 that he may in the first instance (c?), notwithstanding the sur- 
 viving partner was not proved to be insolvent (e), resort in 
 Equity to the assets of the deceased partner for his whole debt 
 
 (a) Vulliamy v. Noble, 3 Mer. G14. 
 (6) Downs V. Collins, 6 Hare, 418. 
 (c) Hills V. M'Rea, 9 Hare, 297. 
 
 {d) Stephenson v. Chiswell, 3 Ves. 5(}&. 
 (c) Wilkinson v. Henderson, 1 M. & 
 K. 582.
 
 PARTNERS. 317 
 
 (and be paid it thereout after the separate Creditors), leaving it to 
 the representative to recover whatever, if any thing, shall appear, 
 on taking the partnership accounts, to be due to the estate of 
 the deceased from that of the survivor {f) ; who is properly made 
 a defendant in the Equity suit, though the Creditor's remedy 
 against him is altogether at Law {g), and there is no suggestion 
 of collusion between him and the executors (h). 
 
 The same principle applies to a suit, where some of the partners 
 are dead and the others bankrupt (i). 
 
 And this rule applies to every joint contract for the loan of 
 money by joint contractors, whether engaged in trade or not, 
 where they have had a benefit from the money advanced, and 
 their obligation to pay exists independently of any security by 
 which the debt is secured (k). 
 
 This liability of the deceased's representatives may however 
 be terminated by other ways than those of direct payment ; e. g., 
 by dealings on the part of the Creditor with the survivors, 
 showing an intention to take their security alone in discharge of 
 the debt, or operating as a discharge of it (/). 
 
 At Law, however, the joint Creditors' remedy against the At Law. 
 executor is extinguished, the debt having wholly survived (m). 
 The rights of Judgment Creditors of a Partnership after the death 
 of a partner, being the same as those, which we shall advert to 
 in the next section, of Judgment Creditors of Debtors not 
 partners, have been already considered (/?). 
 
 The separate Creditors of the deceased have, of course, the 
 same remedies at Law against his separate estate, as if he were 
 not a partner : and they can, if Judgment Creditors, issue exe- 
 cution against the joint estate, as they might have done during 
 their Debtor's life ; for the partnership is not determined at 
 Law by the death, but by the transfer to the vendee of the 
 Sheriff (o). If Specialty or Simple Contract Creditors, they have 
 of course no cause of action against the survivors. 
 
 Ordinarily if a partner dies, no distinction is taken by the 
 Court of Chancery between his joint and separate Creditors. 
 They may all come in, if the survivor is solvent, to prove 
 
 (/) Ibid. 588. Exch. C. 553. 
 
 {g) Ibid. 589 ; and Stainton v. The {I) Brown v. Gordon, 16 Beav. 310. 
 
 Carron Company, 18 Beav. 158. (?«) Brown v. Gordon, 16 Beav. 310 ; 
 
 (Z;") Newland i;. Chanii)ion, 1 Vcs. Godson v. Good, 6 Taunt. 59K 
 sen. 106. (w) Ante, p. 94, et seq. 
 
 («) Brown v. Weathcrby, 12 Sim. 6. (o) Colly. Partn. 71. 
 
 (/r) Thorpe v, Jackson, 2 Y. & C.
 
 318 
 
 PARTNER AND NON-PARTNER DEBTORS. 
 
 Quasi-Corpo- 
 rations. 
 
 Shares. 
 
 against his estate, and the Court pays them all pari passu, and 
 exactly in the same manner. The assets of the deceased are 
 partly composed of what may be called his share of the joint 
 estate. Therefore if a joint Creditor is paid out of the deceased's 
 separate estate, the solvent survivor must allow that payment 
 in account, and give credit for it. If the estate of the deceased 
 is insolvent, and that of the survivor solvent, the joint Creditors 
 will proceed against the survivor, who will thereby become a 
 Creditor against the separate estate of the deceased, in respect of 
 what he has paid beyond his due proportion. If the survivor is 
 insolvent, the joint Creditors must resort to the joint fund first, 
 and can only come against so much of the separate estate, as will 
 remain after paying separate Creditors. So where both partners 
 die before the administration takes place (p). 
 
 Let us next suppose the deceased to have been a member of 
 a quasi-corporate partnership. In this case his death works no 
 dissolution. But the winding up, or Bankruptcy, of the Com- 
 pany is the event most nearly analogous to its dissolution. And 
 first, of the position of his Creditors, or those of the partnership, 
 anterior to such winding up or Bankruptcy. 
 
 The rights of his own separate Creditors remain of course un- 
 affected by the circumstance of his having been a member of such 
 a partnership. The property which will have become assets by 
 that circumstance, viz. the shares or interest in the stock of the 
 Company, which the deceased died possessed of, is legal per- 
 sonal assets, being, either in the particular or general Act under 
 which the partnership was regulated, generally expressed to be 
 personalty (^) ; and will have to be administered as such. It will 
 be equally the representative's duty to realize those assets, though 
 not of a perishable nature, and get them in, as it is his duty to 
 get in any other species of property (r) ; and for all loss by his 
 not doing so, he will be as personally responsible. 
 
 With regard to the rights of Ci'editors of the partnership 
 against the estate of the deceased, as in the case of his being 
 alive, the mode of their recovery will depend upon the condi- 
 tion of the Company (i. e., whether it has been wound up or 
 become bankrupt or not), and whether it has been registered 
 or not. 
 
 The rule as to joining the partner of the deceased Avith his 
 
 (/j) Ridgway v. Clare, 19 Beav. Ill ; 
 Gray v. Chiswell, 9 Ves. 118. 
 
 (7) Wms.P. P. 163,171. 
 
 (r) Thornton v. Ellis, 15 Beav. 11)3.
 
 PARTNERS. 
 
 319 
 
 personal representative, in a suit by Creditors of the partnership, 
 does not apply to the cases of Joint Stock Companies (s). 
 
 Following the classification, then, adopted in a previous part J- S. Acts, 
 of this book, let us, firstly, suppose the deceased to have been a 
 member of a registered Company, subject to the Joint Stock ^.i,ijing up. 
 Companies Acts, 185G, 1857, aud not yet wound up under them. 
 Calls, due from any deceased member in respect of any shares 
 for the time being unpaid, are debts due from him to the 
 Company, and recoverable therefore against his estate, after his 
 decease, at Law, or proveable by the Company as a debt in a 
 Creditor's suit in Equity, as any ordinary debt would be (0. But 
 before winding up such debts would appear to be only simple 
 contract debts. It has been already shown to what extent the 
 estate of a shareholder is liable during his life, and to that extent 
 the Creditors have all such rights and remedies against his 
 representative, as they would have had against him if he had 
 been living. 
 
 The executors or administrators of a deceased shareholder in 
 Companies within the Joint Stock Act, 1856, shall, before or 
 after the Company is wound up, be the only persons entitled to 
 his share, and may be registered as a shareholder {u) : and no 
 one, whose name does not appear on the register, shall be a share- 
 holder (u). 
 
 As to such Companies, after winding up, the representatives On winding up. 
 of any deceased " existing, or former shareholder" — as those 
 words are ascertained by sects. 61, 62, 65 — upon whom Calls 
 are authorized to be made to pay the debts of the Company, are 
 liable, " in a due course of administration, to the same extent as 
 he himself would have been if alive" {ic). 
 
 A question may arise here, whether such executors or ad- 
 ministrators are, until they have put themselves on the registry 
 in respect of the shares held by the deceased, liable to the debts 
 of the Company contracted since his death personally, or only to 
 the extent of the assets, or not even to that extent. It would 
 appear as though the expression in sect. 65, " in a due course of 
 administration," impliedly limited the liability to the assets. 
 Whilst the argument would be, of course, stronger in favour of 
 the exemption from personal liability, if the Deed of Settlement, 
 or Articles of Association, had, as they sometimes do, expressly 
 
 (s) Stainton r. The Carron Company, («) Sched. Table B. (10), (11). 
 
 18 Beav. 15«. (t>) Sect. 19. 
 
 (/) lleward v. Wlieatley, 3 De G. M. (w) Sect. Go. 
 & G. 628.
 
 320 PARTNER AND NON-PARTNER DEBTORS. 
 
 provided that the personal representatives of deceased share- 
 holders should not become proprietors until they are admitted (^). 
 And " so far as the ordinary rules of partnership are not altered 
 by the deed, they must be applied to such a case" (m) ; that is to 
 say, after the death, and until a new personal liability is created 
 under the deed, the testator's estate continues liable. 
 
 If the representatives have put themselves on the registry, 
 then, although as between themselves and the Company they are 
 to be recognized by the Company as the owners of the shares, 
 do they thereby become personally answerable for the debts of 
 the Company contracted during the time the deceased was a 
 shareholder and since ? 
 
 As to calls due to the Company in respect of the deceased's 
 shares, since sect. 22 has made them a debt to the Company, 
 whether they are made before or after the winding up, it can 
 hardly be contended, as was successfully contended prior to the 
 act(v), that because made after the death, they constitute no 
 debt ; but it would seem that, until the representatives have 
 placed themselves on the registry, they would contract no per- 
 sonal liability in respect thereof: and even after they have done so, 
 it would seem doubtful whether they are liable to the Company for 
 the calls beyond the amount of assets received. Something might 
 depend on whether they registered as executors, or simpliciter. 
 "Scrip "what. " Scrip" or " Script" (m-) certificates are documents issued to 
 allottees or subscribers to an undertaking at the time of paying 
 their deposit, and are evidence of their right to obtain shares, 
 and are so called to distinguish them from the real title to 
 shares (x). As to Companies wdthin the 7 & 8 Vict. c. 110, 
 these scrip certificates are not disposable, all sale of them being- 
 prohibited (?/). But this prohibition does not apply to the case of 
 a Railway Company, or any other Company, for executing works 
 requiring the authority of Parliament. Accordingly, the pur- 
 chaser of scrip from the original subscriber has, in the case of 
 such Companies, all the rights of such original subscriber, and 
 may file a bill in Equity to restrain the Company and the Di- 
 rectors from employing monies subscribed, otherwise than in the 
 completion of the works for which they were subscribed (z). 
 
 (<) See as to a Company within W.-U. (w) Wordsworth on Joint Stock Corn- 
 Acts, 1848, 1849, In re Northern Coal panics, 99. 
 Mining Company, 13 Beav. 133. (a-) Jackson v. Cocker, 4 Beav. 04. 
 
 («) Ibid. (/) Sect. 26. 
 
 (v) Armstrong v. Burnet, 20 Ik-av. (z) Bagshaw v. Eastern Union Ilail- 
 
 435. way Company, 2 M'N. & G. 391.
 
 PARTNERS. 321 
 
 The executors of a deceased member of a Joint Stock Com- w.-U. Acts, 
 pany, wound up under the Winding-up Acts, 1848, 1849, are 
 liable, to the extent of the assets of the deceased, to contribute, 
 in Equity, to debts incurred by the Company since the death of 
 their testator (if he has complied with every matter of substance), 
 although the Deed of Settlement had declared they should not 
 be proprietors until they were admitted, and no such admission 
 has taken place (a) ; and the same is Law, until they have as- 
 sented to a bequest of the shares (6). 
 
 Stipulations which may be good as limiting their liability as 
 against the Company, may not affect Creditors (c) ; and, on the 
 other hand, lapse of time, which may be an answer to a Credi- 
 tor, is none to a Contributory under the Winding-up Acts (d). 
 
 The Master may make Calls on the contributories, as well for 
 paying the Company's debts, or the costs of winding up, as for 
 the claims of contributories, inf.er se, or upon the Company (e). 
 And in case any money shall be due from the estate of a de- 
 ceased contributory, whose executor or administrator shall not 
 admit assets, the Master may direct any suit or action to be 
 brought by the Official Manager, for compelling payment of 
 what shall be so due; and for obtaining, if necessary, an admi- 
 nistration of the estate of such deceased contributory towards 
 payment of the debt ( /'). 
 
 Executors of a deceased member of a Joint Stock Banking Banks within 
 Company within 7 Geo. 4, c. 46, — which is a statute difficult to '' ^^°' ^' ^' '^^' 
 be understood on this point, — are not liable, in Equity, to Judg- 
 ment Creditors of the Company after three years after he has 
 ceased to be a partner (g) ; Equity following the analogy of 
 the statutory rules, which are prima facie applicable to Law 
 only (/<). But a shareholder in a Joint Stock Bank, formed 
 under 7 Geo. 4, c. 46, who did not comply with the formalities 
 of the deed of settlement, is not a member, so as to render his 
 executors liable to Creditors of the Company on an execution by 
 sci. fa. {i). 
 
 A Judgment Creditor of a Banking Company was allowed 
 to prove his debt in the Court of Chancery, against the assets of 
 
 (a) Ex parte Blakeley's Executors, 3 (rf) Gouthwaite's case, 3 M. & G. 187. 
 
 M'N. & G. 72(J ; Stratioii's Executors' (e) 11 & 12 Vict. c. 45, s. 83. 
 
 case, 1 De G., M. & G. 576. (/) Ibid. s. 89. 
 
 (h) Keeiie's case, 3 De G., M. & G. (g) Barker v. Buttress, 7 Beav. 144. 
 
 272. (h) Farrer on Contributories, 87, n. (5). 
 
 (r) Armstrong's case, 1 DcG.&Sm. (i) Haddan, Lim. Liab. Act, 1855, 
 
 565. 62, n.(»); Ness u. Armstronpr, 4Exch. 21. 
 
 Y
 
 322 PARTNER AND NON-PARTNER DEBTORS. 
 
 a deceased shareholder, without first obtaining leave from a 
 Court of Law, to issue execution whilst 7 & 8 Vict. c. 113, s. 13, 
 was Law (k). In the case las treferred to, the Judgment was ob- 
 tained after the decease of the shareholder, and his liability 
 under those circumstances was referred for decision to Law. 
 
 A Judgment Creditor of the Company seeking to prove, 
 under a decree for the administration of a deceased shareholder's 
 estate, must show that he has attempted ineffectually to enforce the 
 debt against the estate of shareholders at the time of execution, 
 for their estates are primarily liable : Equity, arguing by analogy 
 from the order of the Creditor's legal remedies, to that of his 
 Equitable ones. 
 
 The executors of a deceased shareholder remain liable, as be- 
 tween themselves and the other shareholders, — without affecting 
 any question between them and their intended transferees, — if all 
 the stipulations required by the Deed of Settlement are not 
 complied with (Z), and so the transfer remains incomplete. 
 
 A Call under the Winding-up Acts, 1848, 1849, is not a 
 specialty debt (m), although the shareholder has executed the 
 deed of settlement. 
 
 If the deceased were a member of a Company within 1 Vict. 
 c. 73, and ceased to be a member by his death, for all purposes 
 of liability to the Company's debts he shall still be considered 
 a member, until a return of the fact of his decease shall be regis- 
 tered according to that Act {n). 
 Insurance As the 7 & 8 Vict. c. 110, is, as we have seen, still Law as to 
 
 ompanies. Insurance Companies, a Judgment Creditor of such a Company 
 may still, if he has used due diligence to obtain satisfaction of 
 his debt by execution against the property of the Company, 
 enforce his Judgment and issue execution thereon, against the 
 property of any shai'eholder who has ceased to be one, by death, 
 within three years, provided he was a shareholder when the con- 
 tract was made on which the Judgment was obtained, or became 
 one whilst it was unexecuted, or was one when the Judgment was 
 obtained (o). This, it is presumed, would entitle the Creditor to all 
 the ordinary legal remedies of a Judgment Creditor, post mortem 
 dehitoris, hereinbefore set forth. But the Act seems to have con- 
 templated giving him only Legal and not Equitable remedies, 
 
 (A-) Re Walton's Estate, 23 Beav. {m) Robinson's Executors' case,. 3 Sm. 
 
 480. & G. 272 ; S. C. 6 D. M. & G. 572. 
 
 (/) In re Royal British Bank, Ex (n) Sect. 21. 
 
 parte Walton v. Hue, 5 W. R. 6-37. (o) 7 & 8 Vict. c. 110, s. G6.
 
 PARTNERS. 323 
 
 except that of Equitable execution (p): i. <?., legally executed 
 execution on a decree in Equity. Equity, however, would 
 perhaps entertain a Bill by him (q). But Specialty and Simple 
 Contract Creditors of the Company possess no rights against 
 the property of the deceased previously to the winding up of 
 the Company, 
 
 As to Companies within 8 & 9 Vict. c. 16, who may, but do 8 & 9 Vict, 
 not, register under the Joint Stock Acts, 1856, 1857, the rights 
 of their Specialty and Simple Contract Creditors against the 
 representatives of a shareholder, and their means of enforcing 
 such rights at Law and in Equity, after the dissolution of the 
 Company (r) — before it they have no such rights —would seem 
 to be the same as those of Creditors of a sole Bankrupt Debtor. 
 It is observable that the Act specifies no time after which such 
 liability shall cease, unless the shares shall have been transferred. 
 For the purpose of enforcing Calls, "shareholder" includes the 
 legal personal representative of a shareholder (s), and the Com- 
 pany may sue such representative at Lav/ or in Equity for such 
 Calls (t). 
 
 The essential feature of continental Societes en Commandite 
 is, that they consist of one or more persons (who may be called 
 general partners), who are jointly and severally responsible for 
 the debts of the concern, and of one or more Comynanditaires, 
 or special partners, who are not liable for them beyond the funds 
 contributed by them to the capital (m). 
 
 Section 2. 
 Debtors not Partners. 
 
 Hushand and Wife. 
 
 Death of Husband. 
 
 Death of Wife. 
 Death of co- Surety. 
 Death nf co- Debtor generally. 
 Death of co-Trustee. 
 
 Death of co- Executor. 
 
 At Law. 
 
 In Equity. 
 Feme-Executrix. 
 Executor dc son tort. 
 
 At Law. 
 
 In Equity. 
 
 The remedies at Law and in Equity of a Judgment Creditor (if Husband and 
 the Judgment were joint against two or more, not being partners) ^^^^' 
 after the death of one of them, have been already forestalled {x\ 
 including the case of husband and wife. 
 
 (/)) See s. G8. (/) Ibid. s. 25. 
 
 (?) Barker v. Buttress, 7 Beav. 145. («) Thring's J. S. Act, 1856, Intro- 
 
 (/•) Ante, pp. 1 17, 119. duction, p. 25. 
 
 (s) 8 & 9 Vict. c. 16, s. 21. (j:) Ante, p. 94, et seq. 
 
 V O
 
 324 
 
 PARTNER AND NON-PARTNER DEBTORS. 
 
 Death of 
 husband. 
 
 Of wife. 
 
 Death of 
 co-surety. 
 
 Of co-Debtor 
 generally- 
 
 If a husband die before Judgment, in an action against both 
 for a debt incurred by the wife dum sola, as his liabihty ceases {y) 
 and the cause of action survives against the Avife, the action 
 does not abate, but the death being suggested on the record, may 
 be proceeded with against her alone (z). 
 
 But if the wife die during action, before Judgment, the cause 
 of action does not survive against the husband, and the plaintiff 
 must proceed against him as administrator, as if the wife had 
 been sole defendant {a), and he will be only liable (on a Judg- 
 ment against him as such administrator) to the extent of the 
 wife's assets taken by him as such (&). 
 
 If the suit were in Equity against both, in respect of a debt 
 to which the wife's separate estate was liable, and the husband 
 die before decree, it may be continued against her alone in 
 respect of her separate estate ; for the interest of the husband, 
 though he was rightly joined in the suit, was not so material as 
 to cause an abatement. 
 
 If the wife died first, then, as she was the material party in 
 respect to the separate estate, the suit abates, and an order, to 
 the effect of the usual order to revive, must be obtained against 
 the husband as administrator, after he has taken out a grant of 
 administration. 
 
 So if a cosurety die, the co-surety who has paid has not, it is 
 said, at Law, (the liability to the debt having survived,) any 
 remedy against the representatives of the deceased (c); but the 
 authority cited for that position {d) does not substantiate it, but 
 seems to be an authority the other way. In Equity, however, it 
 is clear he might sue the representatives for their pi'oportional 
 share {e). 
 
 If the contract were joint and the cause of action survives, 
 the action shall not abate, but may (the death being suggested 
 on the record), proceed (/), or be brought (^) against the sur- 
 viving Debtor only, who shall be solely liable. But if it were 
 joint and several, or several, the Creditor may sue the representa- 
 tives or survivor (A), but he cannot sue them jointly. And if the 
 Debtors had bound themselves (jointly and severally) and their 
 respective heirs, the heir of the deceased obligor would be 
 liable (i), in Equity, to the extent of descended realty. But if a 
 
 {y) 3 P. Wms. 409. 
 («) C. L. P. Act, 1852, s. 136. 
 (a) Ibid. s. 138. 
 {b) Wms. P. P. 309. 
 (c) 1 White & Tud. L. C. Sk 
 (rf; Batar.t v. Havves, 2 Ell. & B. 287. 
 
 {e) Priinrose i;. Bromley, 1 Atk. 88. 
 (/) 8 & 9 Will. 3, c. 11, s. 7. 
 {g) Towers v. Moor, 2 Vein. r9. 
 {h) Piatt on Covenants, ISt. 
 (?) Tippins f. Coates, 18 Beav. 401.
 
 DEBTOKS NOT PARTNERS. 325 
 
 joint Debtor die, the survivor alone is liable, in Equity. In 
 short, the same tests ascertain the nature of the debt, and there- 
 fore the liability and joinder of parties, as in the case of several 
 Debtors during the joint lives {k). 
 
 The C. L. P. Act, 1852, without expressly repealing the act 
 of William, referred to, has re-enacted it almost totidem verbis. 
 
 The death of a co-trustee defendant does not abate the suit Of to- trustee. 
 either at Law or iti Ivjuity, for the cause of action survives (for 
 there is an authority coupled with an interest), notwithstanding 
 that the contracts entered into by, and the liabilities of, trustees 
 are joint and several (/). 
 
 Provided the suit does not seek to charge the deceased trustee 
 personally, and if the deceased was not the trustee who had com- 
 mitted a breach of trust, his representative need not have been 
 made a party to a bill seeking relief for such breach against the 
 survivor, even before the Consolid. Chanc. Orders {m). 
 
 With regard to co-executors (w) or co-administrators (o), all Of co-executor, 
 of them who have administered must, during their joint lives, be 
 made defendants to an action at Law against them for a debt of ^t Law 
 the deceased, since they have a joint and entire interest in the Where debt is 
 goods of the deceased which cannot be divided (/j). deceased's. 
 
 On the death of any co-executor or administrator, the survivors 
 (only) are the parties against whom the action must be brouo-ht, 
 for the interest, being joint, survives. 
 
 Where the death of the co-executor or co -administrator hap- 
 pens during action, it shall not abate (y) ; but the death being 
 suggested on the record, the action shall proceed against the 
 survivor (r). 
 
 Where the action is for a devastavit, committed either by Where execu- 
 themselves or their co-executors, as it seeks to make them per- ^°'''^* 
 sonally and severally liable, it must be against them separately, 
 (though there may be an action brought against each of them,) 
 and would, of course, be unaffected by the doctrine of survivor- 
 ship in the event of the death of either. 
 
 So, e converso, where one of two executors has lent on per- 
 sonal security, if it was a devastavit in him to do so, the lend- 
 ing executor alone should sue(s). 
 
 (/f) Ante, p. 220, ct seq. {p)CoM. D\r. Administration, n.(12.) 
 (0 Ante, p. 228. (q) Ibid. ; tit. Abatement, F. (10.) 
 
 (m) Simes v. Eyre, 6 Hare, 137. (r) C. L. P. Act, 1852, s. 136; 8 & 
 
 (w) Broom on Parties, 197. 9 Will. 3, c. 11, s. 7. 
 (o) Il^id. (s) Wms. Exors. 1640 (v.)
 
 326 
 
 PARTNER AND NON-PARTNER DEBTORS. 
 
 Joint lives. 
 
 After death 
 of one. 
 
 In Equity. Where the suit is in Equity in respect of a debt of the tes- 
 
 tator or intestate, then all the executors or administrators who 
 have acted must, as we have seen, be parties during their joint 
 lives. 
 
 When the suit is in Equity in respect of a debt of the testator, 
 the deceased executor or administrator is not a person within the 
 7th Consol. Ch. Ord. Rule 2, against whom the plaintiff has 
 a joint and several demand which he may prosecute against one 
 alone, and the representatives of the deceased executor are 
 necessary parties (g). " As a general rule, where there are 
 several executors who have acted, and one of them dies before 
 any suit is instituted, a person interested in the administration 
 of the estate cannot file a bill for the general administration of 
 the estate, making the surviving executors alone parties." The 
 7th Consol. Ch. Ord. Rule 2, applies to a breach of trust. In 
 such a case, the order, which shall have the effect of the usual 
 order to revive, must be obtained against the representatives of 
 the deceased. 
 
 But supposing the suit to be against an executor for the 
 devastavit of himself or his co-executor, or any other act in 
 which they were jointly and severally liable, then it would be a 
 case within the above Order, as in the case of trustees properly so 
 called, and the survivor or deceased might be solely proceeded 
 against, unless the breach of trust, alleged to be committed by 
 both executors, was incidental to the general administration of 
 the suit, in which case all the executors and the representatives 
 of such as are dead must be parties (r). 
 
 If the executrix or administratrix be a feme sole and marries, or 
 a feme coverte, her husband is liable to Creditors personally, for 
 devastavits committed hj her, before is) or during the coverture. 
 
 This liability, however, determines at Law (and in Equity) 
 with the determination of the coverture (f), unless a Judgment 
 had been obtained against both during the coverture for the 
 devastavit, in which case execution may issue against his estate. 
 
 If she had become the representative before the marriage, and 
 
 survive, she will both at Law and in Equity be liable for 
 
 devastavits of the husband, during the marriage, or for her own 
 
 After marriage, devastavits before it (m). So if she had become representative, 
 
 with her own consent, after the marriage {x). 
 
 Feme execu 
 trix. 
 
 Executrix 
 before mar^ 
 riage. 
 
 {q) Hall V. Austin, 2 Coll. 570. 
 (r) Briggs v. Penn, 4 Hare, 469. 
 {s) Com. Dig. Baron and Feme. (N.) 
 
 (0 Wms. Exors. 1664. 
 
 {u) Ibid. 1663. 
 
 (j-) 1 Rop. H. & W. 197. (2nd ed.)
 
 DEBTORS NOT PARTNERS. 327 
 
 But if she had become representative after the marriage 
 against her choice (as is possible, for if the husband will admi- 
 nister in lier right, she cannot decline the executorship in his 
 life) iy), she may renounce it after his death, and thereby avoid 
 the consequences of his misconduct, provided that she has done 
 no act of administration {z). 
 
 If the loss occasioned to the assets be by the husband's devas- Husband's 
 tavit, then his liability does not determine with the coverture, ''*'^'"''"^"- 
 but may be enforced against his personal representative in 
 Equity (a). The same rule would appear to prevail at Law^ {b). 
 
 If one not entitled to be executor acts as such, the Creditor Executor rfe 
 has a remedy against him at Law or in Equity. What acts will •*"" '"'"'• 
 constitute him such is a question of Law, rather than of fact. 
 Whether he has done the acts, is indeed a question for the jury 
 (supposing the Creditor is proceeding at Law), but whether 
 those acts amount to an executorship cle son tort, is for the 
 Judge (c). 
 
 It may be laid down generally, that any intrusion or inter- 
 meddling with the goods, or the performance of any act charac- 
 teristic of the office of, by one not appointed, executor, amounts 
 to such an executorship. 
 
 He may be joined as co-defendant, with the rightful executor. At Law. 
 in an action by the Creditor, or may be sued separately ((/). And 
 so if the suit be in Equity (e). But he cannot be sued jointly 
 at Law with an administrator (/). 
 
 If he pleads properly, he will not be liable beyond the assets, 
 which he has taken upon himself to administer (g). He may 
 plead payments rightly made by him before the action to the 
 lawful executor (h), or payment of a debt of superior rank to 
 plaintiff's, though made after action brought (i). Secus, as to 
 payments made to the lawful executor after the commence- 
 ment of the action, the reason being that if such payments were 
 to be allowed, the Creditor would have to begin de novo an action 
 against the lawful representatives {h). 
 
 The rule seems to be still more stringent against him in In Equity. 
 
 ((/) Wms. Exors. 204. {/) Com. Dig. Administrator (C. 3). 
 
 (a:) 1 Rop. H. & W. 197. {g) Wms. Exors. 233. 
 
 (a) Clough 1'. Bond, 3 M. & C, 490. (/*) Oxenham v. Clapp, 2 B. & Ad. 
 (6) 1 Rop. H. & W. 191. 309. 
 
 (c) Wms. Exors. 232. (t) Ibid. 
 
 (d) Com. Dig. Administrator (C. 3). (*■) Ibid. 
 {e) Ante, p. 290.
 
 328 PARTNER AND NON-PARTNER DEBTORS. 
 
 Equity. Not only will payments by him to the lawful executor 
 aftei' suit begun be disallowed (/«), but payments made by him 
 even before the suit (n); the reason apparently being, that one 
 personal representative cannot discharge another from respon- 
 sibility to the parties beneficially interested (o), but the Master 
 may report such account as a " special circumstance," and the 
 Court will then be in a condition to see what, under all the cir- 
 cumstances, justice requires should be done(p). 
 
 (m) Layfield v. Layfield, 7 Sim. 172. (o) Ibid. 105. 
 
 (n) Carmichaely.Carmichael,2 Phill. (p) Ibid. 106. 
 
 C. C. 101.
 
 ( 329 ) 
 
 DIVISION II. 
 
 MORTGAGE DEBTS-ANNUITIES— CROWN DEBTS. 
 
 Part I. 
 
 MORTGAGES. 
 
 Book I. 
 
 MORTGAGES TO AND BY ONE. 
 
 CHAPTER I. 
 
 MORTGAGES OF LAND. 
 
 Section 1. 
 Legal Mortgages. 
 
 What a Mortgage is. 
 
 What may be mortgaged. 
 
 What not. 
 
 Who may not mortgage, and to whom. 
 
 Legal Mortgage what. 
 
 Ancient mode of. 
 
 Mortgage of Freehold by Owner in Fee. 
 
 .Mortgage of Reversion or Re- 
 mainder. 
 
 Ground Rents, 
 
 By Tenant in Tail. 
 
 In Possession. 
 
 In Remainder. 
 Mortgages in Register Counties. 
 Mortgage of Copyholds. 
 Mortgage of Customary Freeholds. 
 Mortgage of Leaseholds. 
 Welsh Mortgages. 
 
 One of the principal and most important species of Debt, which 
 the English Laws recognize, is a Mortgage Debt. 
 
 A mortgage may be perhaps best defined as a security — what what a mort- 
 is popularly called a personal security, e. g. a bond, seems hardly S^ge is. 
 a security (strictly speaking) at all (a), — for a subsisting, or (ex- 
 cept the security be by a client to his solicitor for costs) {h), a 
 future debt, by a transfer of property, redeemable at Law by 
 the Debtor (if the legal ownership be transferred) by a literal 
 
 (a) Bullock V. Wheatlcy, 1 Coll. C. C, 
 136. 
 
 (6) Jones v. Tripp, Jac. 322.
 
 330 MORTGAGES OF LAND. 
 
 observance of the conditions of the transfer : and redeemable 
 in Equity, according to certain rules less stringent laid down in 
 those Courts (c). This definition seems to be as correct an one 
 as can be given, and may be sufficient for practical purposes, 
 though speaking with scientific precision, it is not perfectly 
 accurate ; inasmuch as in a Court of Law a mortgage is not 
 looked upon as a security at all, but as the transfer, though a 
 conditional one, of ownership ; or, in other words, a conditional 
 sale {d). The distinction between a mortgage and a conditional 
 purchase being, as will presently be seen (e), an equitable one 
 only. 
 What may be Almost every species of property known to the English Law 
 mortgage . ^^^ ^^ ^^ subject of mortgage : freeholds, copyholds, and 
 leaseholds (whether the mortgagor's estate or interest therein be 
 legal or equitable, in possession, remainder, or reversion), per- 
 sonal chattels, and choses in action, (whether his interest therein 
 be immediate or reversionary,) annuities, ground and other rents, 
 tolls, advowsons, franchises, impropriate rectories, and tithes (/), 
 pensions for past services (y), ships (A), with their appurtenances 
 and freight («). Even non-existing property, as the future cargo 
 of ships {k), and mere possibilities or contingent interests in real 
 or personal estate (/), may be validly assigned by way of security 
 in Equity. 
 
 Of lay tithes it may be observed, that an impropriate rector 
 or appropriator stands now in every respect in the position of 
 the old spiritual appropriators, who were most or all of them 
 religious houses, that is to say, he retains the glebe and tithes 
 to his own use without presenting any clerk, (and has also the 
 chancel, at least where there is no vicar) (m), he himself under- 
 taking to provide for the service of the church, which he does 
 by a vicar, who must be sufficiently endowed (n), and is irre- 
 moveable by the appropriator (o). And even as to the patronage 
 of the living, he as parson, and not the patron of the parsonage, 
 would seem to have it as of common right (/?). 
 
 (c) 5 Jarm. Byth. (Sweet), 79. (/<•) Langton v. Horton, 1 Hare, 54^9. 
 
 (rf) 2 Cruise's Dig. 6-5. (l) 1 Madd. Cli. Pr. 690 (3rd ed.). 
 
 (e) Post, Sect. 2. (ra) 1 Burn, Phill. 82 (9th ed.). 
 
 (/) Coote on Mortg. 101 (3rd ed.). (n) 15 Rich. 2, c. 6. 
 
 (£) Davis V. Duke of Marlborough, (o) 4 Hen. 4, c. 12. 
 
 1 Sw. 79. (p) Cripp.s' Laws of the Clergy, 147 
 
 (A) 17 & 18 Vict. c. 104, s. 6r>. (3rd ed.). 
 (j) Coote on Mortg. 269.
 
 LEGAL MORTGAGES. 331 
 
 The only exceptions appear to be, any " benefice or Eccle- ^^'^^^t ""t- 
 siastical promotion with cure" (ry) {i. e. of souls) ; the full or half- 
 pay, unless actually due (r), of a military officer (s), or the half- 
 pay of a naval one, or the pension of his widow {t ), pensions to 
 support future duties {u), wages of any petty officer or seaman in 
 the royal navy, or any non-commissioned officer of marines {x), — 
 all which are forbidden to be charged on grounds of public policy, 
 — and perhaps the mere expectancy of an heir in real estate {y). 
 
 As to the questions, who may be mortgagors and mortgagees ; who may not 
 as, prima facie, a power to mortgage is a right incident to pro- n^oitg^ge and 
 
 ..,,, . I 1 c ^° whom. 
 
 perty, it will be easier to answer them by specifying the chief 
 exceptions to that general rule, i. e. : — 
 
 1. Married Women. 
 
 2. Iniants. 
 
 3. Idiots and Lunatics. 
 
 4. Aliens, so far as regards land. 
 
 1. As to married women, see jmst, Book II., Ch. I., Sect. 1. Femes 
 
 2. Infants cannot be (original) mortgagors. And where the '^°^'^'"'^^- 
 mortgage devolves on an infant, the Court of Chancery may, 
 
 if it be of land, make an order vesting his interest in it, as 
 such mortgagee, in such person and manner as the Court 
 shall direct {z), or, if the infant is entitled to any contingent 
 right to any land by way of mortgage, wholly releasing such 
 land from it (a). An infant may, however, be the executor of a 
 mortgagor or mortgagee (6). 
 
 Before the Trustee Act, 1850, if the mortgagor's represen- 
 tative was an infant, a reference was, on a suit by the mortgagee 
 for foreclosure or sale, made to inquire which would be most 
 beneficial to the infant ; but he was allowed a day, after attain- 
 ing twenty-one, to show cause against the decree, provided it was 
 for error (c). 
 
 And it is not very clear that the infant's right to show cause 
 has been taken away by that Act {d). Lord Cranworth thinks it 
 has not been (e). Knight Bruce, L. J., when V. C, seems to have 
 thought otherwise (/). On a foreclosure suit by the mortgagee, 
 
 (5) ISEliz. c. 20. (a) Ibid. s. 8. 
 
 (r) Flarty 1;. Odium, 3 T. R. G83. (6) Wms. Exors. 20L 
 
 (s) M'Carthy u.Goold, 1 B. & B. 389. {c) Price v. Carver, 3 .M. & Cr, 157. 
 
 (OH Geo. 4, c. 20, s. 47. {d) Fisher Mortg. 632. 
 
 (m) 1 Sw. 79. (e) Newbury v. Marten, 15 Jur. 106. 
 
 (x) 11 Geo. 4, c. 20, s. 47. (/) Bowra v. Wright, 4 De G. & Sm. 
 
 (y) Carleton v. Leighton, 3 Mer. 667 • 265 ; Set. Decrees, 310. 
 
 (2) 13 & 14 Vict. c. 60, s. 7.
 
 332 
 
 MORTGAGES OF J>AND. 
 
 Lunatic mort- 
 gagors, 
 
 mortg igees. 
 
 Alien mortga- 
 gees, 
 
 where some of the devisees are infants, the adults defendants, 
 cannot during the infancy of the other devisees obtain on motion 
 a decretal order for an account of what is due (h). 
 
 3. The Lord Chancellor may order land or stock of an idiot 
 or lunatic, to be mortgaged to pay his debts and discharge his 
 incumbrances, and direct the committee to execute all convey- 
 ances in the lunatic's stead (i); and "stock" includes all funds, 
 annuities, or securities, transferable in books kept by any Com- 
 pany or Society (A). 
 
 The Lord Chancellor may make an order vesting in any per- 
 son solely (if the mortgagee being a lunatic or person of un- 
 sound mind, was entitled solely), or jointly (if he was entitled 
 jointly), the right to transfer the stock of the lunatic as mort- 
 gagee, or to receive the dividends, or to sue for and recover any 
 of his choses in action (/) ; and may order lands, of which any 
 lunatic or person of unsound mind is seised or possessed as 
 moi'tgagee, to be vested in such persons as he shall direct {m). 
 
 The word "lunatic," for the purposes of the Trustee Act, 
 means one found so by inquisition ; " person of unsound mind," 
 one who without being so found lunatic is incapable from in- 
 firmity of mind to manage his own affairs {n). 
 
 The Lunacy Regulation Act does not include persons of un- 
 sound mind, &c. as understood by the Trustee Act. 
 
 4. It has been held that a devise to trustees to sell and invest 
 the proceeds in trust for an alien (o), gives him a locus standi 
 in Equity to have the trusts executed (p). 
 
 If this has been well decided, it would seem that a mortgage 
 to a subject, the money being advanced hy an alien, in trust 
 (after default in payment) to sell, and out of the proceeds to 
 pay over the amount due to the alien, with a clause negativing 
 his right to foreclose, or receive the rents, would be a valid 
 security ((/). 
 
 Foreign {i. e. alien) Creditors are entitled to payment of their 
 debts under decrees of the Court, or in the administration (out 
 of Court) of the estate of their deceased Debtors, though the 
 money applicable to such payment be the produce of land (r). 
 
 Qi) Taylor v. Coates, 3 Hare, 263. 
 (i) 16 & 17 Vict. c. 70 (Lunacy Re- 
 gulation Act), s. 2. 
 (A) Ibid. s. 116. 
 (/) 13 & 14 Vict. c. 60, s. 5. 
 (m) Ibid. s. 4. 
 
 (n) 16 & 17 Vict. c. 70, s. 2. 
 (o) Who is, ante, p. 266. 
 (/)) Du Hourmelin v. Sheldon, 1 
 Beav. 79 ; affirmed 4 M. & Cr. 525. 
 (5)5 J arm. Byth. (Sweet), 346. 
 (r) Ibid.
 
 LEGAL MORTGAGES. 
 
 3S3 
 
 And an alien may affect the real estate of his Debtor by an 
 elegit (r). 
 
 As aliens are incapable of holdinc/ land, whether as legal or mortgagors. 
 equitable owners,— though they can take it (a),— no question can 
 arise as to their power to mortgage it. 
 
 With regard, however, to personal estate, alien friends stand 
 on the same footing as natural-born subjects : except as to 
 chattels real {t), which they may take, but only for residence or 
 trade, and for twenty-one years (m), and therefore mottgage to 
 that extent. 
 
 Mortf^ao-es of land,— y,\uch includes mines, minerals, woods. Legal mort- 
 
 ■^ ^"* oo ' iT-iT-.. gage what. 
 
 water, and buildings of all kinds (a;),— may be divided into two 
 classes : — 
 
 1. Legal Mortgages. 
 
 2. Equitable Mortgages. 
 And here of Legal ones. 
 
 To define such a mortgage, as is often done, as one recognized 
 only at Law, postpones the inquiry only a step further : What 
 species of mortgage is so recognized? This may, I think, be 
 sufficiently answered by defining it as a mortgage of freehold, 
 copyhold, or leasehold land, conveyed as a security for a debt, 
 by the person who has the legal, or the legal and beneficial 
 interest in the land, by a deed framed with the regular con- 
 veyancing formalities (y) for carrying the Legal estate to the 
 mortgagee by the Common Law or the Statute of Uses, and 
 accompanied with the other ceremonies which the general or 
 particular Common Law of the country requires, according to the 
 nature of the property. 
 
 In former times the mode of making such a mortgage was Ancient mode, 
 usually this. The mortgagor enfeoffed the mortgagee by one 
 deed, as absolute owner of the land ; the mortgagee, at the same 
 time, executing another deed of " defeasance," whereby the feoff"- 
 ment was rendered void by punctual payment of the loan on the 
 appointed day {z). For, it being a maxim of the Common Law 
 that nothing could be allowed in derogation of a prior solemn 
 grant once made, the only mode in which, consistently with that 
 maxim, a defeasible estate could be granted, was by engrafting 
 on the original assurance a collateral one, " defeating," indeed, 
 
 (r) Ihid. arguendo. (.i) 1 Bhwkst. (Steph.) IG2, 1G8. 
 
 («) Barrow v. Wadkin, 2i Beav. 1. (y) 2 Cruise's Dig. (i9. 
 
 (0 7 & 8 Vict. c. G(j, s. k (z) Ibid. 67. 
 (m) Ibid. s. 5.
 
 334. 
 
 MORTGAGES OF LAND. 
 
 Mortgage of 
 freeholds by 
 owner in fee. 
 
 Mortgage of 
 reversion or 
 remainder. 
 
 Freehold 
 ground rents. 
 
 its limitations, but coteraporaneous with it, and therefore, on that 
 account, considered not to violate the above maxim (a). A pur- 
 chaser from the donee, without notice that the donee holds as 
 mortgagee, would hold discharged from all right of redemp- 
 tion (6). Defeasances have, however, and principally for the reason 
 just mentioned, long been disused; and in modern times the same 
 instrument which conveys the estate to the alienee includes the 
 conditions to which it is subject. The conveyance, whether the 
 mortgage be of an estate in fee, fee tail, for life, or years, is now 
 generally made by " grant" (c), which must be by deed {d ). 
 
 As a deed imports a consideration, the transaction is valid 
 as between the mortgagor and mortgagee, though no money is 
 actually advanced, and though the relation of Debtor and Creditor 
 does therefore not exist between them(e), unless it can be im- 
 peached for fraud, duress, &c. But to acquire the character of a 
 mortgage, as distinct from that of a conditional purchase, there 
 must, as we shall see presently, have been a debt {f). 
 
 The conveyance usually is in fee or for years, — generally a 
 long term. In the former case the mortgagor possesses, after 
 default in payment at the time named, an Equity of Redemp- 
 tion in the fee — (an interest cognizable in Equity only) — in the 
 latter, an Equity of Redemption (also cognizable in Equity alone) 
 in the term, with a Legal reversion (unaffected by the mortgage), 
 in the fee, if he was originally seised in fee. 
 
 A mortgage of a legal reversion, or remainder, is as cognizable 
 at Law as, and differs in no respect from, a mortgage of an imme- 
 diate interest, except in the remedies of the mortgagee, and in the 
 risk of there being former incumbrances on the reversion or re- 
 mainder, of which, not being entitled to the deeds, the mortgagee 
 must necessarily be content to remain ignorant (^). 
 
 Among the class of reversionary interests in land capable of 
 being legally mortgaged, are freehold gi'ound rents, e.g., those 
 reserved on building leases: the mortgagee, being the grantee 
 or assignee of the reversion, is entitled to the benefit at Law by 
 action — as against all the owners of the leasehold interest except 
 under-lessees of such interest by way of mortgage {h) — of all the 
 
 (o) Co. Litt. 236 b. 
 
 (6) Coote on Mortg. 108. 
 
 (c) 8& 9 Vict. c. 106, S.2. 
 
 {d) Co. Litt. 172 a. 
 
 (e) 1 Powell on Mortg. 5, (6th edit.) 
 
 (/) Williams v. Owen, 5 M. & Cr. 
 308. 
 
 {g) 5 Jarm. Byth. (Sweet), 232. 
 
 {h) Woodf. L. & T. 269 ; ante, p. 158.
 
 LEGAL MORTGAGES.. 33i 
 
 covenants to which the mortgagor was entitled (i), provided they 
 be covenants which have for their object something annexed to, 
 or inherent in, or connected with the land (k), i. e. (as they are 
 technically termed), " covenants real." 
 
 A mortgage of land by a tenant in tail in possession is effected Mortgage by 
 under 3 & 4 Will. 4, c. 74, and must be made by one of the ''"^"' '" '"''• 
 assurances, not a will, by which he could have disposed of it if 
 a fee simple estate, but it must be by deed, and no mort- 
 gage, resting only in contract, shall be of force under that Act, 
 either at Law or in Equity, although made by deed (Z) : and a In iiossession. 
 mortgage of land by any tenant in tail shall, to the extent of the 
 estate thereby created, be an absolute bar in Equity, as well as 
 at Law, to all persons as against whom such disposition is, by the 
 o & 4 Will. 4, c. 74, authorized to be made. Provided that if 
 the estate created by such mortgage shall be only an estate pur 
 autre vie, or for years absolute or determinable ; or if an in- 
 terest, charge, lien or incumbrance, shall be therein created 
 without a term of years absolute or determinable, or any greater 
 estate, such mortgage shall be in Equity a bar, only so far as 
 may be necessary to give full effect to the mortgage, or to such 
 other limited purpose, or to such interest, charge, lien or incum- 
 brance (m). The effect of the above provision is, that where a 
 tenant in tail mortgages in fee he will thereby bar the entail — 
 although his intention is not to do so (unless, perhaps, he de- 
 clares such intention by a separate deed) — and become thence- 
 forth equitable owner in fee simple; but a mortgage by him pur 
 autre vie or for years, would not bar the entail {n). 
 
 A Mortgage of land by a tenant in tail in remainder must, in In remainder, 
 order to give it its full effect, be executed by the protector of the 
 Settlement (o). 
 
 A Mortgage by a feme coverle of land settled to her separate 
 use for life, need not be by deed executed according to the Fines 
 Act, but any writing will do (p). 
 
 As for other Mortgages by a. feme coverte, {see post, Book II.) Mortgages in 
 
 Mortgages of freeholds (but not of copyholds) in Middlesex (o), )^^-' 
 (except of cliambers ni the Inns of Chancery or Serjeants' Inn)(r), 
 
 (i) 32 Hen. 8, c. 34. (o) 3 & 4 Will. 4, c. 74, s, 34. 
 
 (A:) Webb V. Russell, 3 T. R. 393. (p) Hulme v. Tenant, 1 B. C. C. 16. 
 
 (/) 3 & 4 Will. 4, c. 74, s. 40. (g) 7 Anne, c. 20, s. 1. 
 
 (»0 Ibid. s. 2L (r) Ibid. s. 17. 
 
 (w) 5 Jarm. Byth. (Sweet), 211. 
 
 legister 
 unties.
 
 3S6 MORTGAGES OF LAND. 
 
 in the three Ridings of York, in Kingston-on-Hull (s), and in 
 Ireland, must be registered in those several places. Non-regis- 
 tration, however, does not invalidate the Mortgage as between 
 mortgagor and mortgagee, but only as between the mortgagee 
 and subsequent mortgagees and purchasers for value who shall 
 register before him. 
 
 Morfjrajre hy A Legal Mortgage by a Copyholder in fee is effected by an 
 
 fee*.' ° ' (oral) surrender by the mortgagor into the hands of the Lord 
 to the use of the mortgagee and his heirs, followed hy the 
 admission of the mortgagee (f), subject to a condition for 
 making void the surrender on payment at the time appointed. 
 Admission is usually delayed, and therefore most mortgages of 
 copyholds are equitable only (m). As the Statute of Uses does 
 not apply to copyholds [w), a surrender " to A. to the use of B." 
 vests the legal estate in A. Where the surrender is made " to the 
 use of" the Lord, he is merely a nominee ; he does not thereby 
 become seised to an use (j) ; nor does any estate pass to him. 
 
 The surrender is necessarily accompanied or preceded by a 
 deed containing a covenant to pay the money and for title (y). 
 
 In tail. Copyholds are not Avithin the statute de Donis, and are there- 
 
 fore not entailable (z), except by particular custom. Where such 
 a custom exists, the tenant in tail may make a legal mortgage of 
 them according to 3 & 4 Will. 4, c 74, i. e., by surrender, with 
 similar provisions, in the case of remainders, as to the consent 
 of the protector, as in the case of freeholder (o) ; but no sur- 
 render need be enrolled except by entry on the Court Rolls (b). 
 
 Of customary Customary freeholds are not copyholds within the Fines Act(c). 
 
 freeholds. Therefore they are mortgaged in the same way as freeholds. 
 
 A customary freehold is a species of copyhold held according 
 to the custom of the manor, but not, like pure copyholds, at the 
 will of the Lord (d). 
 
 Of advouso;;s. An advowson is, generally, legally mortgaged by a deed of 
 grant, with a power of sale(6'); which, however, cannot be 
 exercised during a vacancy of the church. The mortgagor has 
 the right to present, and may compel, in Equity, the mortgagee 
 
 (.?) \V. Riding, 2 & 3 Anne, c. 4, s. 1 ; 5 (4th ed.) 
 
 Anne, c. 18. E. Riding & Kingston-on- (y) 5 Jarm. Byth. (Sweet), 234. 
 
 Hull, 6 Anne, c. 35. N. Riding, 8 Geo. (z) 1 lilackst. (Steph.) C24. 
 
 2, c. 6. Ireland, 6 Anne, c. 2. (a) See s. 50. 
 
 (0 Coote on Mortg. 113. (6) Ibid. s. 54. 
 
 (a) Post, Sect. 2. (c) 8 Dowl. 693. 
 
 (w) 1 Blackst (Steph.) 609. (d) 1 Cruise's Dig. 254. 
 
 (.r) 1 Walk. Copy. 24, 124, n. (f), (e) Cases collected in Cootc, 33, n. (o).
 
 LEGAL MORTGAGES. oo'r 
 
 to present his nominee ; although they agreed that the mort- 
 gagee should have the right to present. 
 
 A Legal Mortgage of Leaseholds is effected either Mortgnge of 
 
 (i.) By assignment— which, if required by Law to be in ^'^"^^^'"^ids. 
 writing, must be by deed (/)— in which case the Mortgagee A«^'g»»>e"t- 
 (even if he has not been in possession) is liable to the Lessor'c^) 
 for the rent, and on the real covenants contained in the Lease (A). 
 
 (ii.) By Underlease— and this is the best mode where the rent Underlease 
 and covenants are onerous (i) —reserving a reversion in the 
 Mortgagor of a greater or less period : in which case, there 
 being no privity of contract between the original Lessor and the 
 Lnderlessee, the latter is in nowise liable to an action on any of 
 the covenants in the original Lease 0') ; though, in consequence of 
 the privity of estate, the ground landlord may distrain, or bring 
 ejectment against him for rent arrear, or for breach of any of the 
 covenants in the original Lease {Ji). 
 
 One form of Legal Mortgage, now disused, is the Welsh Welsh Mort. 
 Mortgage, the chief peculiarity of which lies in tliis, that under ^'°''- 
 It possession is taken and the rents are received by the Mort- 
 gagee; (the rents being stipulated to be in lieu of interest), so 
 that there can be no foreclosure on the part of the Mortgagee (/). 
 
 Section 2. 
 Equitable Mortgages. 
 
 Conditiotml Purchase. q T7„„;t„ii^ i •,, , ^ 
 
 j?„, ■) II nr ^ , „ \ '^- ^■'I'^-^i'^f'l^ chaj-ge without Denosil 
 
 E<,,utahle Mortgages classified. 4. Mortgage hy Equitable o"Z 
 
 Memorandum of Deposit. \ * 
 
 Before we consider Equitable Mortgages, it may be observed. Conditio, 
 tliere is no principle of Law, as administered by Courts of P"'chase 
 Equity, which will prevent an instrument, /m//,r^ as a mortcraae 
 from having the operation of a Conditional Purchase, if sudiYe 
 the clear and bond fide intention of the parties {m). The line of 
 demarcation, however, is not broad : and it is necessary to ex- 
 amme minutely the contents of the instrument, and circumstances 
 
 Yll^J^'^'V''-'- (i)Woodf.L.&T.2I9. 
 
 Bint 9,1 " "'^"'' ' ''■"'• "-' ('•) ^"'^' P- '-^^ ■' Woodf. L. & T. 7, 8. 
 
 nsn ^ , , ^^> ^^"^^ "• '^^"•"'J. 2 Dr. & Warr. 487. 
 
 n 5 7'" ^"'f 7^7' '^D-^'-S^l- (-) 5 Jarn. Byth. (Sweet). 84. 
 
 CO 5 Jarm. Byth. 508. ' 
 
 onal
 
 338 
 
 MORTGAGES OF LAND. 
 
 Equitable 
 Mortjjages. 
 
 Classified. 
 
 Morta:ajje of 
 Equity of 
 Redemption. 
 
 and relations of the pai'ties, to decide to which class each 
 belongs (n). 
 
 "If the transaction be a mortgage, there must have been a 
 debt" (o). The criterion is, " Are the remedies mutual and reci- 
 procal ? Has the so-called mortgagee all the remedies a mort- 
 gagee is entitled to ?" (p) The chief result of the distinction is, 
 that, if construed as a Conditional Purchase, the right to repur- 
 chase is exerciseable only within the time specified : if as a 
 mortgage, the right of redemption is exerciseable at any distance 
 of time, so far as is consistent with the Statute of Limitations. 
 If an intention be once discovered that the transaction should be 
 ab oriyine a mortgage, the mortgagor may be relieved from any 
 stipulation tending to fetter his right to redeem, upon the maxim 
 of Equity, "Once a mortgage, always a mortgage;" that right 
 being deemed inseparable from a mortgage {q). Neither will the 
 agreement of the parties control it (r). 
 
 Equitable Mortgages of land — which may now (after the de- 
 finition given above of Legal Mortgages) be, with perhaps suflS- 
 cient clearness, described as all Mortgages which are not Legal — 
 may be considered as including the following principal classes, 
 although, technically, they are sometimes confined to Mortgages 
 by deposit only. 
 
 1 . Mortgage of an Equity of Redemption. 
 
 2. Mortgage by deposit of title deeds, with or without a 
 
 memorandum of deposit. 
 
 3. Equitable charge, without any such deposit. 
 
 4. Mortgage by an Equitable owner. 
 
 5. Vendors lien for unpaid purchase money. 
 
 6. Purchaser's lien for paid purchase money. 
 
 \. A Mortgage of an Equity of Redemption is generally, 
 though not necessarily, effected by a Deed of Release, and 
 follows, in form, a legal mortgage (s). Any instrument, how- 
 ever, which in Equity would amount to an equitable charge, 
 is sufficient {t). 
 
 Against the estate, the mortgagee will possess no remedy at 
 Law ; but, of course, he will have the same personal remedies at 
 Law, by action, against the mortgagor, and those claiming under 
 him, as a legal mortgagee has, whether there be a covenant or 
 
 (n) Ibid. 
 
 (o) Per Lord Cottenhatn in Williams 
 V. Owen, 5 M. & Cr. 308. 
 
 (p) Goodman v. Grierson, 2 Ball & 
 B. 279. 
 
 {q) Coote, Mortg. 11. 
 
 (;•) Seton v. Sladc, 7 Ves. 273. 
 
 (s) 6 Jarm. Byth. (Sweet), 59, n. (a). 
 
 (0 Ibid.
 
 EQUITABLE MORTGAGES. 
 
 339 
 
 bond for payment or not. On mortgages of this description the 
 mortgagor must give written notice to the mortgagee of the prior 
 mortgage; otherwise the mortgagor, his heirs, executors, adminis- 
 trators and assigns, shall have no Equity of Redemption against 
 the second mortgagee, who shall hold the land as if the mortgage 
 had been an absolute purchase (w). 
 
 The statute, however, which imposes the above penalty, has 
 been of little practical use ; only one or two cases have arisen 
 under it(.r). 
 
 The second mortgagee should give notice of his mortgage to "Squeezing 
 the first mortgagee; not that it is absolutely necessary in all 
 cases, but in order to prevent the possibility of a third mortgagee 
 tacking his mortgage, as he may, to the first, if he can get in the 
 legal estate (i/). 
 
 The second mortgagee should also ascertain the amount of the 
 debt due on the first mortgage, and see that it does not extend to 
 further advances {z) ; and that there is no debt owing to the latter, 
 us legal mortgagee (a), from the mortgagor, on any other estate ; 
 for if there is, he could not redeem the one mortgage without 
 redeeming the other, supposing it to be a deficient security {b). 
 
 But if tlie first mortgage extended to further advances, and the 
 second mortgagee knew that it did (c), it seems that even notice 
 by him of his incumbrance to the first mortgagee would not 
 postpone the latter as to such further advances {d}. 
 
 An Equity of Redemption may be mortgaged toties quoties. 
 
 But where the first mortgage was for a term, and the second 
 is of the inheritance, the latter is strictly a mortgage of the 
 Equity of Redemption of the term only, and a first (legal) mort- 
 gage of the inheritance (e). 
 
 An Equity of Redemption in copyholds may be mortgaged 
 without surrender, and will pass by deed, being an equitable 
 interest only (/). 
 
 2. Mortgages by deposit. — If A. deposit with B. the title deeds Mortgage by 
 of his freehold or leasehold estate, or the copies of the Court ^^°^^ 
 Rolls, if the estate be copyhold, without a single word pass- 
 ing {g), the relation of Debtor and Creditor subsisting between 
 them at the time (h), this amounts to a valid equitable mortgage 
 
 (m) 4 & 5 Will. & Mary, c. 16. (r) Gordon v. Graham, 7 Vin. Abr. 
 
 (j-) 5Jarm.Bytli.(Sweet),458; Ken- Crcd. & Debt. p. 52 (3). 
 
 Hard v. Futvoyc, Times, Feb. 18G0. (d) 5 Jarm. Bytli. 443. 
 
 (y) 2 P. Wnis. 494. (e) 6 Jarm. Byth. (Sweet), 59, n. (a). 
 
 (z) 5 Jarm. Byth. (Sweet), 441. (/) Coote, Mortg. 114. 
 
 id) Coote, Mortg 397. (^) Ex parte Kensington,2 V.& B.83. 
 
 (i) Jones V. Smith, 2 Ves. jun. 376. (h) 5 Jarm. Byth. (Sweet), 109. 
 
 z 2
 
 340 
 
 MORTGAGES OF LAND. 
 
 Deposit of one 
 deed. 
 
 of the estate : a Court of Equity inferring such to have been thie 
 intention of the deposit, from the relation, unless the contrary be 
 proved. 
 
 The deposit of only one title deed, if it be the principal one, 
 has been held to have the same effect (i). 
 
 And if B. could show that, either at the time of the deposit, 
 or of a further advance subsequently made by him to A., it was 
 agreed between them, even orally only, that the deposit security 
 should cover the further advance, he will, notwithstanding the 
 Statute of Frauds, have an equitable interest in the land, and the 
 right to detain the deeds, till both debts are paid(7f). 
 
 But the transaction will not have this effect if, previous to the 
 time of the further advance, the mortgagee has got in the legal 
 estate (/), nor unless the subsequent advance be by the same 
 person (?*. e., the depositary) [m). 
 
 Where the property is leasehold, a deposit by a lessee of his 
 lease amounts to an equitable mortgage of it (n). But the mort- 
 gagee does not thereby render himself liable to the covenants 
 in the lease (o), nor to a declaration that he is liable prospec- 
 tively to pay rent reserved by the lease, nor to accept from the 
 lessee a legal assignment of the lease ip). 
 
 An agreement to deposit, without any delivery of the deeds, 
 has been held not to amount to an equitable mortgage {q). It 
 has also been held more recently that it does (r). 
 
 It seems undecided, even at the present day, whether a deposit 
 of title deeds with one, who is at the time a Creditor of the de- 
 positor, in order to prepare a legal mortgage, amounts to an 
 equitable mortgage. The older cases established it would not ; 
 but in two others, one of them a comparatively recent one, Sir 
 Memorandum L. Kenyon and Lord Eldon held that it would is). A memo- 
 randum of deposit generally accompanies the deposit, and is 
 preferable to one without a memorandum, but does not seem to 
 carry the matter further, except that on the mortgagor's bank- 
 ruptcy it would entitle the depositary to the costs of his order for 
 sale, which a mere deposit would not {t). 
 
 Agreement to 
 deposit. 
 
 Deposit to pre- 
 pare a legal 
 mortgage. 
 
 (j) Ex parte Chippendale, 1 Deac. 67. 
 
 (A) Ex parte Nettlcship, 2 M. D. & 
 De G. 124. 
 
 {I) Ex parte Hooper, 1 Mer. 9. 
 
 (m) Ex parte Whitbread, 19 Ves. 211. 
 
 (h) Miller, Eq. Mortg. 25. 
 
 (o) Moores v. Clioat, 8 Sim. 508; 
 Moore v. Greg, 2 Phill. 720. 
 
 ip) Ibid. 
 
 iq) Ex parte Coombe, Re Beavan, 4 
 Madd. 249. 
 
 (r) Ex parte Orrett, 3 Mout. & Ayrt, 
 153. 
 
 {s) Edge V. Worthington, 1 Cox, 21 1 ; 
 Ex parte Bruce, 1 Rose, 374. 
 
 (0 Ex parte Thorpe, 3 Mont. & 
 Av:t. 441.
 
 EQUITABLE MORTGAGES. oil 
 
 3. Equitable charges without deposit. — Any agreement, from Equitable 
 which the intention to charge the land can be gathered (although charge without 
 it do not assume the shape of a regular conveyance) amounts to 
 
 a good equitable mortgage, if the relation of Debtor and Creditor 
 subsist at the time between the parties to such agreement. Such 
 an agreement should be in writing («). A covenant for a con- 
 ditional surrender of copyholds is of this description {x). 
 
 4. Mortgage by equitable owner. — A cestui f/ue trust in fee Mortfrage by 
 of freehold land has, in Equity, all the powers of alienation in- o?vner. 
 cident to the owner of land (?/), except that of passing the legal 
 
 estate ; he may therefore partially aliene it, as by way of mort- 
 gage. This may be done by any instrument sufficient to indicate Freeholds. 
 his intention, but it must be by writing signed by him (z), and 
 is usually, tliough not necessarily, by deed, and accompanied by 
 all the formalities of a legal mortgage {a). 
 
 An owner of an efjuitahle estate tail must mortgage it by such 
 an assurance as is required in the case of a legal tenant in 
 tail {h). 
 
 Trust leaseholds may be also assigned by way of mortgage in Leaseholds. 
 a similar way, but must be so assigned by deed, if the trust be 
 of a chattel interest which requires to be in writing (c). 
 
 Practically trust estates are conveyed as legal estates. Thus 
 it is usual for the mortgagee of an equitable term, on satisfaction 
 of the debt, to execute a deed of surrender, though the surrender 
 operates only as a discharge from the equitable contract created 
 by the mortgage, for which purpose a receipt in full for the 
 mortgage money would be equally effective {d). 
 
 Equitable interests in copyholds whether in fee or for lives are 
 mortgageable without surrender, and will pass by deed only (e). 
 
 Equitable estates tail in copyholds, where there is a custom, Copyholder, 
 may be mortgaged either by surrender or by a deed according 
 to the Fines Act(/'), {i. e. of the same kind as is provided for 
 equitable estates tail in freeholds). Such deed shall be entered 
 on the Court Rolls, and the omission of such entry shall make 
 the deed void as against subse(|uent claimants for value [cj). If 
 there be a protector {i. e. if the mortgage be by a tenant in tail 
 
 (m) Miller on Eq. Mortg. 1. (c) 8 & 9 Vict. c. 106, s. 3. 
 
 (x) 5Jarm. Byth. (Sweet), 234'. {d) Smith on the Law of Heal and 
 
 in) 1 Cruise, Dig. 405. Personal Property. 
 
 {z) 29 Chas. 2, c. 3, s. 9. {e) 1 WatkiiisonCopyhold, G0(4thed.) 
 
 (a) Miller, E<i. Mortg. 1. (/) 3 & 4 Will. 4, c. 74, s. 50. 
 
 (6) Ante, p. 335. {g) Ibid. s. 53.
 
 342 
 
 MORTGAGES OF LAND. 
 
 Vendor's lien. 
 
 When lost. 
 
 Purchaser's 
 lien. 
 
 not in possession), and such protector consent by a separate 
 deed, he must execute the deed of consent at or before the 
 execution of the deed of disposition {h). The deed of consent 
 must be entered, and the steward must endorse and sign on such 
 deed the memorandum of entry (i). 
 
 Notice of the Equitable Mortgage, whether of freeholds, copy- 
 holds, or leaseholds {k), need not be given by the mortgagee to 
 the trustee or legal owner of the land, in order to perfect his 
 title to the security, as against subsequent incumbrances ; the 
 necessity of such notice being confined (as will presently appear) 
 to mortgages of clioses in action only (Z) ; though there does not 
 appear to be, in principle, any satisfactory reason for the dif- 
 ference in this respect, between equitable interests in realty and 
 equitable interests in personalty. 
 
 5. Vendor's lien. — Another species of Equitable Mortgage is 
 a vendor's lien on the land sold for his unpaid purchase money, 
 although he may have endorsed {ni) upon the deed a receipt for 
 the purchase money, whether there be or be not any special 
 agreement for the purpose, and whether the estate be freehold, 
 copyhold {n), or leasehold (o). But it would seem he loses his lien 
 by accepting a mortgage (^) of the same, or of another (9') 
 estate, or by accepting any other pledge (r) as a security for the 
 purchase money ; or at least it should be shown, that by those 
 acts he did not intend to lose it (5}. So likewise will he lose it 
 by taking a covenant, in the deed, for payment of the money, if 
 the conveyance is expressed to be in consideration of such 
 covenant; in other words, " if the vendor relies on ihe personal 
 credit of the vendee, and not upon the security of the estate" {t). 
 But he will not lose it by taking a separate bond or note (m). 
 The cestui que trust of monies authorized to be lent, and lent, 
 by the trustees on mortgage, has a lien on the mortgaged land (x). 
 
 G. Purchaser's lien. — A purchaser, mIio has paid his purchase 
 money, but cannot obtain a conveyance, is also an Equitable 
 Mortgagee of the estate (?/). 
 
 (/<) Ibid. s. 51. 
 
 {i) Ibid. 
 
 (/f) Wiltshire v. Rabbits, 1 4 Sim. 77. 
 
 (/) Wilmotj;. Pike, 5 Hare, 14. 
 
 (to) 5 Jarm. Byth. (Sweet), 14-. 
 
 (n) Winter v. Lord Anson, 3 Russ. 
 438. 
 
 (o) Elliot V. Edwards, 3 Bos. & P. 
 181. 
 
 {f) Bond I'. Kent, 2 Vern. 281. 
 (f/) Nairn v. Prowse, 6 Ves. 759. 
 (r) Ibid. 
 
 (s) Macreth v. Symmons, 15 Ves. 350. 
 (<) 3 Russ. 488. 
 (m) Miller, Eq. Mortg. 5. 
 (x) Laney. Digbton, Ambler, 414, 419. 
 iy) Burgess u. Wheatc, I W. Blackst. 
 150.
 
 ( 343 ) 
 
 CHAPTER II. 
 
 MORTGAGES OF PERSONALTV — REMEDIES. 
 
 Section 1. 
 Mortgages of Personalty. 
 
 Mortgage of Chattels in Possession. 
 
 At Laiv. 
 
 In Equity. 
 
 Possession and Registration. 
 
 Bill of Sale. 
 Pledges. 
 
 Mortgages of Ships. 
 Mortgages of Choses in Action. 
 
 Legal. 
 
 Equitable. 
 
 Stock Mortgages. 
 
 In Possession. 
 
 In Reversion. 
 
 Agreement to Mortgage. 
 Mortgage by Beneficial Owner. 
 Mortgage of Debts. 
 Mortgage of Shares. 
 Mortgage of Policies. 
 Mortgage of Fund in Court. 
 Mortgage of Legacy or Residue. 
 Stamps on Mortgages. 
 
 Personalty, whether in possession or action, may be the sub- Cimttels in 
 ject of a Mortgage. possession. 
 
 And first, of Mortgages of chattels personal in possession. 
 
 These must, at least in order to be valid at Law for passing At Law. 
 tlie property of the goods, and not merely a power to seize 
 them, be of such as the mortgagor has presently (a). He cannot 
 legally mortgage, presently, after-acquired personalty ; not even 
 though the instrument of assignment purport to convey it by 
 the largest possible words, e. g., " all goods which shall at any 
 time during the continuance of this security be in my house" {h). 
 But the security may be so framed as to extend to and com- 
 prise future property, if such is the intention, though it will 
 not pass presently the legal ownership of it. Thus power may 
 be given in an assignment of furniture to enter (on default in 
 payment of rent) and take the goods then in the house (c). 
 
 A different rule however prevails in Courts of Equity. There, In Equity. 
 neither construction nor decision has confined the Mortgage 
 
 (a) Lunn v. Thornton, 1 C. B. 38(i. 
 (6) Gale v. Burnell, 7 Q. B, 8o0. 
 
 (c) Tapfield v. Hillman, 6 Mann. & 
 Gx. 248.
 
 344 
 
 MORTGAGES OF PERSONALTY — REMEDIES. 
 
 Possession 
 and registra- 
 tion. 
 
 Bill of Sale. 
 
 Pledges. 
 
 to the articles which were on the property at the time of the 
 grant (</). 
 
 The most important questions in mortgages of this descrip- 
 tion are, how far Possession by tlie mortgagee, and Registration 
 of tlie mortgage, are requisite to give full effect to them ? This 
 will be more properly considered when we come to the rights 
 of the mortgagee against those, between whom and himself the 
 contest most frequently exists, viz. the execution Creditors of 
 the mortgagor, or his Insolvency or Bankruptcy Assignees. At 
 present we will consider the case as between himself and the 
 mortgagor only. 
 
 Let us suppose the mortgage to be by deed, as it usually is. 
 As a deed imports in itself a consideration, the transaction if by 
 deed is (as in mortgages of land) (e) valid at Law, as between the 
 parties to it, unless there be fraud in obtaining it, though no 
 money be actually advanced by the mortgagee (/"). The most 
 usual species of deed employed is a " Bill of Sale," which may 
 be defined generally as " any solemn contract under seal, 
 whereby a man passes the right or interest that he has in goods 
 and chattels" {g). The definition of Bills of Sale given in the 
 Secret Bills of Sale Act refers only to such as require to be 
 registered, which, ex hypothesi, mortgages do not, as between the 
 parties to them. 
 
 The property of the goods passes by the deed at Law ; but 
 the possession of them by the Debtor, whether moveable (or im- 
 moveable, as partaking of the nature of fixtures) being consistent 
 with the nature of the transaction, and not, as in an absolute 
 assignment, a conclusive, though it is a prima, facie (A), mark of 
 fraud, may rightly remain, and generally does so remain, with 
 him. 
 
 But a personal cliattel may be well mortgaged at Law with- 
 out a deed(i). A mere written memorandum of agreement to 
 mortgage has been held to pass the immediate interest in the 
 goods out of the mortgagor at Law (j), and even writing seems 
 unnecessary (A). 
 
 A Pledge, which only concerns personal chattels, passes to 
 the pledgee only the possession of the property, and not the 
 
 {d) Langton v. Horton, 1 Hare, 549 ; 
 ante, p. 330. 
 
 (e) Ante, p. 334. 
 
 (/) Wins. P. P. 35. 
 
 {g) Cunningham's Law Dictionary. 
 
 (/() Coote, Mortg. 239. 
 (i) Flory v. Denny, 7 Exch. 581. 
 ij) Thompson v. Pettitt, 10 Q. B. 101. 
 (A-) 7 Exch. 585.
 
 MORTGAGES OF PERSONALTY. (345 
 
 property itself, or at most it passes a special property, with 
 a right to retain possession till the debt is paid (/). It is a 
 " deposit of personal effects,"not to be taken back, but on pay- 
 ment of a certain sum ; by express stipulation, or the course of 
 trade, to be a lien upon them"(/w). It differs from a mortgage in 
 the above-mentioned particulars, and also in this, that the pledgor 
 has all his life to redeem in (n). 
 
 It is not necessary to prove acceptance of the mortgage by Mortgages of 
 the mortgagee : the Law presumes it (o). ® P^' 
 
 A registered ship, or any share therein, may be made a security 
 for a loan or other valuable consideration (p); the registrar, on 
 application and statement, by the owner of such ship or share, of 
 the I'equired particulars, may grant him a certificate of mort- 
 gage, which shall enable him to^mortgage (g), and may be re- 
 voked on notice given by him to the registrar (r), or if it be lost, 
 may be renewed (s). Such certificate shall not authorize mort- 
 gages within the United Kingdom, (if the ship's port of registry 
 be within it,) or the British possession within which the port of 
 registry is {t). 
 
 A ship is said to be chartered as a general ship, when the General ship, 
 master and owners of it agree with separate merchants to convey 
 their goods in her. She is said to be chartered, when the owner Chartered, 
 of the goods takes the entire ship for their transport. 
 
 The mortgage shall be by deed in the form prescribed {u), and 
 the Registrar of the port, at which the ship was registered, shall 
 record it, on production, in the Register Book (u) ; and every 
 mortgage shall be registered in the order in which it is pro- 
 duced (x) to him. 
 
 The mortgagee is owner, so far only as is necessary to make 
 the ship or share available as a security for the mortgage debt(y), 
 but shall have power absolutely to dispose thereof, and to give 
 effectual_receipts for the purchase money (2). 
 
 On production of the mortgage deed, with a receipt for the 
 mortgage money indorsed thereon, duly signed and attested, the 
 
 (0 Story, Eq. Jur. sect. 1030. (5) Ibid, s, 82. 
 
 (ra) Jones v. Smith, 2 Ves. jun. 378. (<) Ibid. s. 78. 
 
 in) Post, Sect. 5. (m) Viz. Form I. in Sched. to 17 & 
 (0) 1 Powell on Mortg. 32 (a), (6th 18 Vict. c. lO-l. 
 
 ed.) {v) Ibid. s. 6Q. 
 
 (p) 17 & 18 Vict. c. lOl'.s. 66. (.r) Ibid. s. 67. 
 
 (r/) Ibid.s. 76. {y) Ibid. s. 70. 
 
 (r) Ibid. s. 83. (z) Ibid. s. 71. 
 
 z 5
 
 546 
 
 MORTGAGES OF PERSONALTY— REMEDIES. 
 
 Mortgages of 
 choses in 
 action. 
 
 Legal. 
 
 Equitable. 
 
 Stock mort- 
 gage- 
 
 In possession. 
 
 In reversion. 
 
 Agreement to 
 mortgage. 
 Mortgage by 
 beneficial 
 owner. 
 
 Registrar shall enter such discharge in the Register Book, and 
 upon such entry the estate shall revest in the person, in M'hom it 
 would have vested if there had been no mortgage (a). 
 
 A chose in action may be mortgaged in Equity, sometimes even 
 at Law, as in the case of the Imperial Government Stock, East 
 India Stock, and London Dock Stock ; the legal ownership in 
 which, as well as the right to recover it, may, as we have seen {h), 
 be validly assigned by transfer in the books of the respective 
 Companies. 
 
 Where the formalities required by statute for the legal transfer 
 are not observed, still the mortgage may be supported in Equity 
 as an equitable mortgage or charge, though it seems it would be 
 otherwise, if it were an absolute voluntary assignment (c). 
 
 A reversionary chose in action is, whatever its species, assign- 
 able (and therefore mortgageable) in Equity only ; a Court of 
 Law viewing the first owner of it as the absolute owner (d). 
 
 The principal sorts of mortgageable choses in action are : — 
 Stock, Funds in Court, Shares in Railway and other Companies, 
 Debts, (including Policies of Assurance,) Legacies and Residuary 
 Personal Estate. 
 
 Mortgages of stock are either of stock in possession, or of 
 reversionary interests in stock (e). The latter class of mortgages 
 is more frequent than the former ; for when a man has stock 
 in possession, he generally prefers raising money by an imme- 
 diate absolute sale tiian resorting to a mortgage of it, unless the 
 period be one of great depreciation of prices rendering a sale 
 undesirable. A mortgage of stock in possession by deed, is, 
 however, rare ; the usual practice in the City of London being 
 to (^f) lend money for a short time on a transfer of stock, without 
 any regular defeasance executed by the transferee. 
 
 Where the mortgage is by transfer and deed, the deed is a 
 deed of defeasance executed by the transferee, whereby he cove- 
 nants, on payment of the money at the given time, to re-transfer 
 the stock, and not to sell till the time is past. 
 
 The legal owner of stock may also agree for value to mort- 
 gage it. So the beneficial owner of stock may mortgage it, 
 though such a mortgage is cognizable in Equity only ; and 
 to secure himself as against other incumbrancers of it, the 
 mortgagee must give notice of the mortgage to the legal 
 
 (a) Ibid. s. 68. 
 
 (b) Ante, p. 182. 
 
 (c) Ante, p. 18k 
 
 (d) Ante, p. 49. 
 
 (e) 5 Jarni. Byth. (Sweet), 301. 
 (/) Ibid. 302.
 
 MORTGAGES OF PERSONALTY. 347 
 
 owner or owners, or one of them (^), and make inquiry of him, 
 or each of them, if more tlian one, as to the existence of any 
 prior charge (A . As between the mortgagor and mortgagee, how- 
 ever, such notice is immaterial. 
 
 PubUc stock may be the subject of loan, but that is a distinct 
 subject from the one we are considering {i). 
 
 As the transfer of such debts as may be assigned at Law Mortgage of 
 {e. g., of those which may be assigned by virtue of special 
 statutes) is an absolute assignment, the subject of mortgages of 
 debts is, for practical purposes, an equitable one. 
 
 Debts generally may be mortgaged in Equity, whether secured 
 or unsecured (li), even down to a simple contract debt, and that 
 by parol : and whether the interest be immediate or reversionary. 
 But to secure himself as against third persons — though not 
 against the mortgagor — the mortgagee must give notice of the 
 mortgage to the Debtor (Z), and, if the mortgagor be a beneficial 
 owner, to the legal owner of the debt, as in the case of stock mort- 
 gages by beneficial owners, and must also inquire of him as 
 to prior charges ; and if the debt be a specialty, have the security 
 delivered to him. And as the mortgagee assumes, with the 
 security, the duty of getting in the debt (w), under penalty of 
 being charged with the loss in case any arise from his default {n), 
 he should always, in mortgages of this description, be specially 
 protected against such a liability by a clause protecting him 
 against involuntary losses (o). 
 
 Shares in public or Joint Stock Companies may be mort- Of shares, 
 gaged. This is generally an absolute transfer by deed, in the 
 form given in the general or special Act regulating the Company, 
 accompanied by a deed or writing, stating the real nature of the 
 transaction. 
 
 Where the owner of shares has mortgaged them, e. g., 
 by transferring them into the name of a trustee for the 
 mortgagee in trust to secure the money advanced, and subject 
 thereto for the mortgagor, the shares not standing in the mort- 
 gagee's name, the Company have no claim against the latter for 
 calls in arrear(j9), the Legislature having, by the Companies' 
 
 ig) Smith V. Smith, 2 Cr. & M. 231. (w) 2 Davidson's Convey. COS, 604. 
 
 (//) 2 Davidson's Convey. (2nd ed.) {n) Ibid. 
 
 950, n. (f). (o) Ibid. G03. 
 
 (i) 3 Jarm. 414; 5 Jarm. 302. {p) Newry Railway Co. v. Moss, 14 
 
 (A) 2 Davidson's Con?. 600. Bcav. 64. 
 (/) Ibid, andante, p. 186.
 
 348 
 
 MORTGAGES OF PERSONALTY REMEDIES. 
 
 Of policies. 
 
 Of fund in 
 Court. 
 
 Of legacy or 
 residue. 
 
 Clauses Consolidation Act, taken great pains to prevent any but 
 legal relations arising between the Company and their share- 
 holders {q). 
 
 Yet, by express contract, the parties might get rid of the effect 
 of the Act. Thus, if the Company could, consistently with the 
 Act, agree that the equitable mortgagee should be the only per- 
 son liable for the shares standing in the trustee's name, and 
 if the mortgagee had covenanted that he would be liable, it might 
 have been otherwise (r). 
 
 A form of transfer is given by the Joint Stock Acts, 1856, 
 1857, as to Companies within them (5) ; and by the Companies' 
 Clauses Consolidation Act, as to Companies within it(0- Com- 
 panies within the Joint Stock Act, 1856, may decline to register 
 transfers by shareholders indebted to them (?<)• Transferor and 
 transferee must execute the transfer {w). 
 
 The ownership of Policies is assignable, and therefore mort- 
 gageable, only in Equity {x). Everything should be done, as in 
 absolute assignments, which the nature of the case admits of, to 
 perfect the mortgagee's title, i.e., notice should be addressed by 
 him to the Company, and delivered to the Secretary (1/), and 
 the policy should be delivered to him ; but the transaction is 
 complete as between himself and the mortgagor (0), and some- 
 times as between himself and third parties (a), without such 
 notice or delivery. 
 
 Where stock or funds are standing in the name of the Ac- 
 countant- General of the Court of Chancery, either to the general 
 credit of a cause, or to the account of any person, the person 
 entitled in expectancy, or otherwise, to any share or portion of 
 such stocks or funds, may assign it by way of security, and that 
 even without writing, and such assignment will, in Equity, but 
 in Equity only — the Accountant-General being the legal owner — 
 constitute a valid equitable mortgage thereof. 
 
 A Legacy, or Residue, or share in a residue, of personal 
 estate under a will, (or under an intestacy,) is, at least until 
 the executor or administrator assent to the one, or account for 
 and distribute the other, equitable property (6), for the legal 
 
 («<-) Ibid. s. 20. 
 
 (ar) Ward v. Audland, 8 Beav. 24. 
 (y) 2 Davidson's Convey. 489 (n). 
 {z) 5 Jarm. Byth. (Sweet), 311. 
 (a) Fortescue v. Barnett, 3 M. & K. 
 5. 
 {h) Wms. r. P. 309, 
 
 (q) See SB. 8 & 20 of 8 Vict. c. 16. 
 
 (r) 14 Beav. 70. 
 
 («) See Form F. to 19 & 20 Vict. 
 C.47. 
 
 (0 See Sched. B. to 8 & 9 Vict. c. 1 6. 
 
 (u) Sched. to 19 & 20 Vict. c. 1,3, 
 Table B. (7). 
 
 36.
 
 MORTGAGES OF PERSONALTY. 
 
 owner is the executor or administrator alone, and any mort- 
 gage of them by the beneficial owner must be equitable, and 
 cognizable in Equity only. They may be mortgaged with or 
 without a deed or writing, though they ai'e usually mortgaged 
 by deed. To perfect the mortgagee's title as against other in- 
 cumbrancers, or the Bankruptcy or Insolvency assignees of the 
 mortgagor, notice should be given by him to the executor or 
 administrator, according to the general rule (c). 
 
 Every writing, transferring specific property and intended as a Stamps. 
 security for a loan of money or stock — including conveyances in 
 trust for sale, (except for Creditors generally, or for specified 
 ones, who shall accept the benefit in full payment, or be more 
 than five,) and transfers of shares in any society by way of 
 security, and instruments defeating or making redeemable an 
 apparently absolute conveyance, and agreements for a mortgage, 
 if accompanied by a deposit — is liable to stamp duty {d). 
 
 Where the same is a security for a definite and certain sum 
 advanced at the time, or presently due or forborne, it is liable 
 to an ad valorem (e) duty of one-eighth per cent. : where for 
 future advances, to the same duty, if the total amount ultimately 
 recoverable be limited, as a mortgage for such limited sum ; 
 where unlimited, then the security shall be good only for the 
 sum covered by the ad valorem stamp {f). Where it is a secu- 
 rity for a transfer of shares or stock in any Company, the same 
 duty is payable as on a mortgage for a sum equal to the value 
 of the fund secured on the day of the mortgage thereof, or any 
 of the preceding ten days, or latest of the days on which there 
 was any known sale thgreof {g). 
 
 Instruments further assuring or securing property already 
 mortgaged by an instrument which has paid the ad valorem 
 duty, shall be charged with (where the total amount or value 
 of money or stock already secured is not above 1,4<00/.) the 
 same duty as a mortgage for the value or amount of the said 
 money or stock, and in other cases \l. 15s. {h). Mortgages are 
 also charged with a progressive duty of \0s. for every entire 
 1,080 words over the first 1,080, unless the ad valorem duty be 
 less than 10s., in which case the progressive duty is equal 
 to it. 
 
 (c) Ante, pp.34G, 3t7. (/) Ibid. 
 
 (d) 13 & 14 Vict. c. 97, Sched. {g) Ibid. 
 Mortgage. {h) Wms. R. P. 158. 
 
 (e) Ibid. 
 
 z 7 
 
 349
 
 ( 350 ) 
 
 Legal mort- 
 gagee. 
 
 Non-judicial 
 remedies. 
 
 Entry and 
 Possession. 
 
 Section 2. 
 Remedies of Mortgagee and Mortgagor of Zand. 
 
 1. Legal Mortgagee. 
 
 Non-judicial Remedies. 
 
 Entry and Possession. 
 
 Mortgagor in Possession. 
 Leases by Mortgagee. 
 Mortgagee v. prior Lessee, 
 V. subsequent 
 Lessee. 
 Mortgagee of Tolls. 
 Receiver. 
 Sale. 
 Distress. 
 
 Voluntary Payment. 
 Reconveyance. 
 Presumption of. 
 Judicial Remedies. 
 At Law. 
 Ejectment. 
 Redemption. 
 7 Geo. 2, c. 20. 
 Possession by County Courts. 
 Action of Debt or Covenant. 
 Trover for Deeds. 
 Detinue. 
 
 Jn Equity. 
 
 Foreclosure. 
 
 Redemption. 
 
 7 Geo. 2, c. 20. 
 
 Sale. 
 
 Consolidation. 
 
 Marshalling. 
 
 2. Equitable Mortgagee. 
 
 Non-judicial Remedies. 
 Judicial Remedies. 
 At Law. 
 In Equity. 
 
 Mortgage of Equity of Re- 
 demption. 
 Mortgage by simple Deposit. 
 Mortgage by Deposit with 
 
 Alemorandum. 
 Vendor's and Purchaser's 
 
 Lien. 
 Equitable Charge. 
 Mortgagee of Ship. 
 Mortgagee of Advowson. 
 
 I. Legal Mortgagee. 
 
 A Legal Mortgagee of land has remedies, both at Law and in 
 Equity, for the recovery of his debt, interest, and costs. 
 
 Independently of those which may, for convenience sake, be 
 termed his Judicial remedies, he possesses the following non- 
 Judicial ones by his own act, without resort to any Court, and 
 that whether the mortgage be in fee or for years, viz., 
 
 1. Entry and Possession, whether the mortgage deed contain 
 
 a proviso of entry or not ; for the mortgagee has such 
 right by Law. 
 
 2. Sale, if the deed contains such a power, and, if executed 
 
 after 28 August, 1860, though it does not; unless it 
 expressly negatives it {h). 
 
 3. Distress, where the deed contains such a power. 
 
 4. A power, in mortgages after 28 August, 1860, unless 
 
 expressly negatived, to insure against fire, and add 
 premiums to principal (i), where the principal is one 
 year, and the interest six months, in arrear. 
 1 . Entry and Possession. — As soon as the day for payment is 
 passed, and default is made in payment of the principal or in- 
 terest, or immediately on the execution of the mortgage, if there 
 be no proviso for quiet enjoyment till default {j), the mortgagee 
 may enter into possession of the land, or, by giving notice to the 
 
 (h) 23 & 24 Vict. c. 145, ss. 11, 32, (i) Ibid. 
 
 34;. (j) 2 Davidson's Convey. 564:.
 
 REMEDIES OF MORTGAGEE AND MORTGAGOR OF LAND. 
 
 351 
 
 tenants, into the receipt of the rents, and apply them towards 
 the discharge, not of the interest only, but of the principal 
 also (k). 
 
 If the mortgagor be himself in actual personal occupation, and Mortgagor in 
 there be no proviso in the deed, amounting in Law to a re-demise, possession. 
 — a proviso that the mortgagor shall remain in possession till de- 
 fault amounts to such a I'e-demise (/), — the mortgagor is at most 
 a tenant at sufferance, and may be treated as a tenant or tres- 
 passer at the election of the mortgagee (m). The relation to a 
 mortgagee of a mortgagor in possession does not seem capable 
 of accurate description. It is dangerous to define it in any other 
 terms than those very words (n), " Mortgagor and Mortgagee." 
 For the mortgagee may evict without notice or demand of posses- 
 sion, and enter into occupation himself. But the eviction must 
 be peaceable (o), i. e., unaccompanied with circumstances calcu- 
 lated to promote, or amounting to, a breach of the peace. 
 
 When in possession, the mortgagee can make a valid lease for Leases by 
 years at Law (p), whether the deed contain or not a power to ^^°^^S^S^^- 
 him to lease. Such a lease, however, will, in Equity, be treated 
 as null against the mortgagor, unless to avoid apparent loss, or 
 from necessity for it (r/), or unless the deed contain a power of 
 leasing. He may, however, let from year to year (r), and if in 
 possession himself for six months, is capable, if qualified and 
 registered, of voting for Knights of the Shire, — as is also the 
 mortgagor, if in possession (i), — and obtaining a settlement under 
 the Poor Laws (as is the mortgagor also, if in possession) (i) ; 
 and, if in possession seven years, of being elected a Member of 
 Parliament (u). 
 
 If the mortgage be of buildings, the mortgagee should repair 
 and insure (and will be allowed, in his account, for those ex- 
 penses, with interest) {x). The mortgagee of a copyhold may 
 even pull down ruinous houses and build better (7/). 
 
 He should keep regular accounts, showing every item of re- Mortgagee 
 ceipt and disbursement, and, if in actual occupation, must submit p^ioi. lessee. 
 to an annual value being put on the premises as occupation rent, 
 and deducted from his debt (z). 
 
 (k) Knight V. Bowyer, 6 W. R. 569. (r) 8 Car. & P. 566. 
 
 (l) Bac. Abr. " Leases" (K.). (s) 2 Will. 4, c. 45, ss. 23, 26. 
 
 (7«) Cole on Ejectment, 462. (t) 3 T. R. 772. 
 
 (n) Doe V. Barton, 11 Ad. & Ell. 314. (u) 9 Anne, c. 5, s. 4. 
 
 (o) Jayson v. Rash, 1 Salk. 209. (x) 5 Jarm. Byth. (3rd ed.) 399. 
 
 ( p) 5 Jarm. Byth. 355. (y) Hardy v. Reeves, 4 Ves. 480. 
 
 (?) Hungerford v. Clay, 9 Mod. 1. (s:) 5 Jarm. Byth. (Sweet), 401. 
 
 Z 8
 
 352 
 
 MORTGAGES OF PERSONALTY — REMEDIES. 
 
 subsequent 
 lessee. 
 
 Mortgagee 
 of tolls. 
 
 Receiver. 
 
 As against tenants prior to the mortgage — and a lessee in 
 under a power to lease reserved in the mortgage deed is a prior 
 tenant (a) — the mortgagee possesses the same rights, but no more, 
 as the mortgagor himself has {b). He may serve notice on them, 
 requiring them to pay henceforth their rents to him (c) ; but he 
 cannot, so long as they duly pay their rents, disturb their exist- 
 ing tenancies. They immediately become his tenants without 
 any attornment (d). 
 
 If the lease, however, were subsequent to the mortgage, the 
 mortgagee may treat the lessee, and all those who may come 
 into possession under him, as wrongdoers, and may bring an 
 action of ejectment (e), or may summarily evict them (if it can 
 be done peaceably) without notice, because their title is wrongful 
 against him(/); but he cannot bring an action for the rent 
 (arrear) which they have contracted to pay, nor distrain on them, 
 as there is no relation of landlord and tenant (g) between them. 
 However, if they choose to pay the rent to him, which constitutes 
 an attornment — an attornment need not be in writing (h), — and 
 he accepts it, the tenancy is confirmed, and the relation of land- 
 lord and tenant arises between them. 
 
 Mortgagees of turnpike tolls may take possession on default, 
 and shall account for their receipts (i). 
 
 To guard against the responsibilities of possession, the mort- 
 gagee often has a receiver appointed, generally by the mortgage 
 deed, sometimes by a separate deed. This, indeed, should be 
 always part of the arrangement, where it is likely the rents will 
 be resorted to to pay the interest ; but the books furnish very few 
 instances of decisions on the nature of his situation. His duties 
 are confined to the collection of rents and profits, and the use of 
 lawful means for recovering them, as by distraining or otherwise 
 proceeding in the name of the mortgagor. His possession is 
 that of the mortgagor, whose agent he is ; and he is generally 
 appointed by him by a power of attorney (j). 
 
 A power to appoint a Receiver is, unless expressly negatived, 
 implied in deeds executed after 28th of August, 1860, where the 
 principal has been due one year, or the interest six months {k). 
 
 (a) Rogers v. Humphreys, 5 Nev. & 
 M. 513. 
 (6) Ibid 
 
 (c) Cole on Ejectment, 474. 
 
 (d) Ibid. 473. 
 
 (e) Rogers v. Humphreys, 5 Nev. & 
 M. 513. 
 
 (/) Ibid. 
 
 (g) Cole on Ejectment, 476. 
 
 (/() Littl. s. 551. 
 
 (0 3 Geo. 4, c. 126, s. 47. 
 
 (j) 2 Davidson's Convey. 571, et 
 seq. 
 
 (A-) 23 & 24 Vict. c. 145, ss. II (3), 
 32, 34.
 
 REMEDIES OF MORTGAGEE AND MORTGAGOR OF LAND. ^^^ 
 
 A mortgagee, however, generally prefers his remedy hj sale Power of sale, 
 to that of possession, which often involves him in long and in- 
 tricate accounts; This power (of sale), when exercised, abridges, 
 of course, the mortgagor's equitable right to redeem : but, till 
 exercised, it is regarded as an additional remedy given to the 
 mortgagee, and does not prevent him from foreclosing (/). The 
 surplus proceeds of a sale in the mortfjac/ors lifetime are personal 
 estate (m). The vendor's receipt, if the sale is under a deed ex- 
 ecuted after 28th August, 1860, will discharge the purchaser {n). 
 
 A power to him to sell authorizes a mortgage with a power of 
 sale (o). But this cannot be treated as an universal rule (p). A 
 purchaser cannot insist on the concurrence in the sale of the 
 mortgagor (^), or of his judgment creditors subsequent to the 
 mortgage deed (r). A mortgagee is a trustee within the rule, 
 which prohibits a trustee for sale from gaining any advantage 
 by selling to himself, whether he be a co-trustee, or a sole 
 trustee : though he is under no abstract disqualification to 
 buy (s). 
 
 Another non-judicial remedy for interest arrear, and, (where Distress, 
 so stipulated,) for the liquidation of the principal also (t), is dis- 
 tress, lohere a power to distrain is contained in the mortgage 
 deed. This is a very convenient remedy, where the mortgagor 
 himself is in occupation; without it, the mortgagee is in a worse 
 situation in such a case, than where the land is in lease to a 
 tenant (m), as the relation of mortgagor and mortgagee is not 
 that of landlord and tenant, and the remedy of distress is, unless 
 it be expressly given, incidental to that relation only (y). 
 
 Such a power is inoperative as against lessees holding under 
 
 a lease prior to the mortgage (w), though without such a power 
 
 the mortgagee may, giving them notice to pay I'ents to him, 
 
 distrain for it: so that, practically, the inoperativeness of the 
 
 power against them is of no moment. Such a power, however, 
 
 may be resorted to, and is useful, against a subsequent lessee, as 
 
 being a prior charge on the land to the extent of the interest 
 
 arrear, irrespective of the amount of rent (x). 
 
 This may, perhaps, be the fittest place to say a few words Voluntary pay- 
 ment. 
 
 (0 5 Jarm. Byth. (Sw.) 108. 666. 
 
 (wj) Wright V. Rose, 2 S. & S. 323. (s) Whichcote v. Lawrence, 3 Ves. 750. 
 
 (w) 23 & 24 Vict. c. 145, s. 12. (t) 2 Davidson's Convey. 567. 
 
 (o) Bridges v. Longman, 24 Beav. 27. {u'j 5 Jarm. Byth. (Sw.) 514. 
 
 (p) Sudg. on Povv. 513 (7th ed.) (v) Gilbert on Distress, p. 1. 
 
 {q) 5 Jarm. Byth. (Sw.) 103. (w) 5 Jarm. Byth. (Sw.) 514. 
 
 (r) Alexander v. Crosby, 1 Jo. & Lat. (a-) Ibid. 
 
 A A
 
 354 
 
 MORTGAGES OF PERSONALTY — REMEDIES. 
 
 Reconveyance. 
 
 Presumption 
 of. 
 
 upon what may be classed among the mortgagee's non-judicial 
 remedies : viz., that of a voluntary tender and payment by the 
 mortgagor. 
 
 There seems to have been a conflict of opinion among text 
 writers, whether the mortgagee must accept payment, if tendered 
 before the day named in the proviso {y) for redemption. The 
 better opinion, however, seems to be that he need not {z), and that 
 an immediate right to redeem is not necessarily incident to a 
 mortgage, unless the redemption is by the assignees of a bank- 
 rupt mortgagor (a). 
 
 If payment is not made at the day. Equity requires the mort- 
 gagor to give six calendar months' notice to the mortgagee of 
 his intention to pay him off (6), (in order that he may find 
 another investment for his money). But if the mortgagee de- 
 mand payment (and proceedings at Law or in Equity amount to 
 a demand), or the money is agreed to be paid on a given day, he 
 is entitled to no notice, until that day is passed (c). 
 
 If due notice has been given, interest will cease to run from 
 the time of tender, if the mortgagee refuse to take the money {d), 
 and the mortgagor has kept it dead from the time of notice (e). 
 The tender must be strictly made (/'), and, like every other 
 tender, unconditional (g), and the money (Bank notes will do) {h) 
 actually produced. The mortgagor is not bound to attend at 
 the place named in the proviso in the deed, if the mortgagee 
 did not object to a different place from that named in the 
 deed {i). 
 
 The interest of a mortgagee in the land ceases, in Equity, 
 when he is paid off, but not at Law ; and the mortgagor is 
 thei'efore entitled, even without express stipulation, to require 
 him to execute a reconveyance, at his, the mortgagor's, cost ; and 
 it shall be, where possible, by endorsement on the mortgage 
 deed. 
 
 A satisfaction and reconveyance will be presumed, where the 
 mortgage deeds are dated more than twenty years ago, and are 
 in the possession of the mortgagor ; and the presumption is 
 strengthened by a receipt for the mortgage money endorsed on 
 the deed {h). 
 
 {y) Ibid. 93. 
 
 (a) Brown v. Cole, 14 Sim. 427. 
 (a) 12 & 13 Vict. c. 106, s. 149. 
 (i) Sharpnell v. Blake, 2 Eq. Ca. Abr. 
 603. 
 
 (c) 5 Jarm. 382. 
 
 (d) Mannings. Burges, 1 Cha. Ca.29. 
 
 (e) Gyles v. Hall, 2 P. Wms. 378. 
 
 (/) Ibid. 
 
 (g) 5 Jarm. Bytli. (Sw.) 381. 
 
 (;0 3 & 4 Will. 4, c. 98, s. 6. 
 
 (0 Gyles V. Hall, 2 P. Wms. 378. 
 
 (A-) 1 Davidson's Convey. 619 (n.).
 
 REMEDIES OF MORTGAGEE AND MORTGAGOR OF LAND. 355 
 
 The 40th sect, of 3 & 4 Will. 4, c. 27, has not removed the 
 difficulties of a mortgagor who is vendor in such a case, as he 
 must still prove the negative, that no payment or acknowledgment 
 has been made for twenty years. 
 
 If the mortgagee of a copyhold has been admitted, he must Reconveyance 
 re-surrender: if not, the surrender is vacated by entering an "^ '=°Py'>"l^'s- 
 acknowledgment of satisfaction on the Court Rolls (l). If the 
 mortgage has rested merely in covenant, a deed of release will 
 be sufficient (rn). 
 
 The mortgagor is not entitled, on redemption, to an assign- 
 ment of the mortgage debt (n). 
 
 We have seen that the legal estate vests in the mort- judicial reme- 
 gagee, in the contemplation of Law and Equity, upon the '^''^^^ 
 execution of the mortgage deed. And accordingly, even before 
 default in payment, the mortgagee may, where there is no 
 proviso for quiet enjoyment, maintain ejectment, whether the 
 mortgage be in fee or for years (o). Upon non-payment of the At Law. 
 mortgage money on the day appointed, the mortgage becomes 
 also forfeited at Law, as for a condition broken ; and there- 
 upon he may pursue both his legal or equitable remedies 
 (against the land and person) at once (p). He does not pre- 
 judice his remedies against the estate, by pursuing his personal 
 legal remedies, nor his personal remedies, by pursuing at the 
 same time those of ejectment at Law and foreclosure in 
 Equity. 
 
 And first, of his remedy by ejectment. His proceedings in Ejectment 
 such a case are now regulated by the Common Law Procedure 
 Act, 1852, as has been already adverted to (y), in considering 
 the remedies of a landlord ; in the light of which, however, he is 
 not to be considered. He need not demand possession, or give 
 notice to quit, before bringing ejectment (r), whether the deed 
 contains a proviso for entry or not ; the mortgagee having by Law 
 such a right. If he bring ejectment in any Westminster or subject to 
 Palatine Court, and any defendant, having a right to redeem '■ademption. 
 (provided no foreclosure or redemption suit be then pendino-,) 
 pay or bring into Court the amount due for principal, interest 
 
 (0 Ibid. vol. 2, 1080 (n.) (Sw.) 404. 
 
 ("0 ^tliid. (^) Ante, p. 156. 
 
 (?i) Dunstan v. Patterson, 2 Phill. 345. (r) Doe d. Roby v. Maisey, 8 B. & C. 
 
 (o) Cole on Eject, p. 4C3. 767. 
 
 (p) Cases collected in 5 Jarm. Byth. 
 
 A A 2
 
 S56 MORTGAGES OF PERSONALTY REMEDIES. 
 
 and costs, the Court may discharge such defendant, and compel 
 the mortgagee to reconvey, and to re-deliver the deeds (s). 
 
 Redemption therefore, though generally, is not exclusively, an 
 equitable term ; nor does it exclusively describe a judicial 
 remedy. A mortgage is said to be redeemable at Law, if the 
 debt be paid according to the conditions of the instrument (0- 
 Nevertheless, it is strange to see a Court of Law obliged to 
 take notice, under the above statute, of rights of redemption, 
 after the mortgage has ceased to be redeemable at Law, i. e. 
 after the condition is broken ; and when therefore those rights 
 are only Equities of Medemption. 
 
 But the above enactment does not apply to cases where the 
 plaintiff insists that the defendant has no right to redeem, or 
 where the premises are chargeable with other sums, nor where 
 the right to redeem comes in question between co-defendants. 
 And the Act does not prejudice the right of any subsequent 
 mortgagee or incumbrancer (w). It is remarkable that the above 
 7 Geo. 2, c. 20. provisions are almost verbally identical with those of 7 Geo. 2, 
 c. 20 (x), which, however, has not been repealed by 15 & 16 Vict., 
 and is still Law. 
 Who may so As to the parties having a right to redeem, within the meaning 
 
 re eem. of those words in the 15 & 16 Vict. c. 76, it may be said gene- 
 
 rally, that they comprise the mortgagor, and all those deriving an 
 interest from him by purchase or devise (?/), or, (yet more gene- 
 rally), any person having an interest in, or lien upon, the land {z). 
 This will obviously include (to speak particularly) any sub- 
 sequent mortgagee, legal or equitable, or Judgment Creditor, 
 dowress, jointress or tenant by the curtesy, the Crown, (if the 
 mortgagor be an outlaw,) a lessee (a), a bond Creditor (if the 
 mortgagor be dead) (6), — even where the mortgage is for years, 
 if he has had Judgment against the heir (c) — the Bankruptcy {d) 
 or Insolvency (e) assignees of the mortgagor, and his assignees 
 claiming under a voluntary conveyance (jf). 
 
 On recovering Judgment in ejectment, the mortgagee is en- 
 
 («) 15 & 16 Vict. c. 76, s. 219. (6) Acton v. Peirce, 2 Vern. 480. 
 
 {t) 5 Jarm. Byth. (Sw.) 79, ante, p. (c) Bateman v. Bateman, Prec. Ch. 
 
 329. 198. 
 
 (a) 15 & 16 Vict. c. 76, s. 220. {d) 12 & 13 Vict. c. 106, s. 149. 
 
 (x) Sects. 1, 3. (e) Fislier on Mortg. 126. 
 
 (y) 1 Cruise Dig. 104. (/) Rand v. Carlwright, 1 Cha. Ca. 
 
 (a) Ibid. 59. 
 
 (o) Keech v. Hall, 1 Dougl. 22.
 
 REMEDIES OF MORTGAGEE AND MORTGAGOR OF LAND. 357 
 
 titled to issue a writ of execution for recovery of possession, 
 called an habere facias possessionem (g), out of the Court in 
 which the action was brought (h), and for costs. 
 
 The County Courts have no jurisdiction in actions of eject- County Courts' 
 ment (i) ; but the mortgagee having, as he always has, a right ^^"^^ ^' 
 by Law to re-enter for non-payment of rent by the tenants, if he 
 has given them notice to pay it to him, may have an action there 
 for possession against the prior or subsequent tenants of the 
 mortgagor, but not against the mortgagor himself, for the rela- 
 tion of landlord and tenant does not subsist between them ; — 
 against the prior tenants (for they become, without attornment, 
 immediately upon notice of the mortgage, tenants to the mort- 
 gagee) on default in payment of half a year's rent (not exceeding 
 50/.) ; — against subsequent tenants, after attornment by them to 
 him, and such default (Ji). 
 
 The second judicial legal remedy is an action of covenant /or Action of cove- 
 
 , . „ , , n -I 1 I 1^ 1 nant or debt. 
 
 damages, it there be a covenant to pay, or or debt to recover the 
 sum in mimero, if there be a bond, or neither bond or cove- 
 nant (/) ; for every loan creates a debt from the borrower {m). 
 The action will be in all respects conducted, and liable to the 
 same regulations as to parties, as actions by ordinary Specialty 
 or Simple Contract Creditox's. The time at which the mortgagor 
 covenants to pay, is the same as that mentioned in the proviso 
 for redemption. 
 
 Among a legal mortgagee's remedies at Law, it seems proper Trover for 
 to class the action of trover for the recovery of the title deeds 
 wrongfully converted to the use of the defendant («). And Equity, 
 though it will not assist him in recovering them, would perhaps 
 not restrain him from proceeding at Law to do so (o). 
 
 The provision of the Common Law Procedure Act, 1854, 
 enabling a party to sue on lost instruments, does not extend to 
 lost deeds. 
 
 A mortgagee may also have an action of detinue for them, Detinue, 
 even against a subsequent equitable mortgagee by deposit. " He 
 may follow them all the world over" (/?). 
 
 A legal mortgagee in fee is entitled to the custody and pos- 
 
 {g) 15 & 16 Vict. c. 76, s. 185 ; Arch. {m) 2 Fonbl. Tr. Eq. 279, n. 
 
 Pr. 980. (n) Harrington r. Price, 3 B. & Ad. 
 
 (Ji) Arch. Pr. 547. 174. 
 
 (j) 9 & 10 Vict. c. ^5, s. 58. (o) 5 Jarm. Byth. (Sw.) 4S0, and n. 
 
 (A') 19 & 20 Vict. c. 108, s. 52. (p) Newton v. Beck, P. O. 6 W. R. 
 
 (0 1 Selvv. M. P. ( 12th ed.) 487, 571. 443.
 
 358 
 
 MORTGAGES OF PERSONALTY — REMEDIES. 
 
 Lien of 
 solicitor. 
 
 No Receiver. 
 
 Equitable 
 remedies. 
 
 session, not only of the mortgage deed, but of all the title- 
 deeds of the estate, for they pass by the conveyance of the land 
 itself (/)), though there be no express grant of them. It is 
 otherwise if the mortgage be for years by an owner in fee {q), 
 and therefore an express grant of them should in that instance 
 be inserted in the mortgage. Of course, under certain circum- 
 stances, the mortgagee has no right to acquire, and therefore it 
 is no neglect on his part not to require, the delivery of the deeds. 
 Of this class are cases where the mortgage is of a reversion, or 
 by an owner of only an aliquot part of the property, or by one 
 standing in a fiduciary character, and having other trusts to 
 perform requiring the retention of the deeds (r). 
 
 A tenant for life is entitled to the possession of the title 
 deeds (s). Yet his right to them is commensurate only with his 
 own interest in the estate, and therefore if he mortgage in fee, 
 the mortgagee cannot keep them as against the remainder- 
 man (0- 
 
 If the mortgagee is paid off, his solicitor, holding the deeds 
 for him, has no right to retain them as against the mortgagor, 
 though a debt be still due to him, the solicitor, from the mort- 
 gagee, whether such debt be in relation to the mortgage trans- 
 action or not ; the lien being only commensurate with the right 
 of the client (m). 
 
 So the lien of the mortgagor's solicitor cannot prevail against 
 a prior mortgagee, so as to entitle him to withhold the deeds 
 from him (v).. 
 
 As a legal mortgagee, having his remedy in his own hands, 
 can always take possession himself, he cannot obtain from a 
 Court of Equity the judicial remedy of a Receiver (a;). 
 
 Simultaneously with all or any of his non-judicial, or judicial 
 legal {y) remedies, a legal mortgagee may, even though he 
 has taken the mortgagor's body in execution {z), at any time 
 after default in payment, at the time appointed, of the principal, 
 or of the interest, (though the time for paying the principal may 
 
 {p) Harrington v. Price, 3 B. & Ad. 
 170. 
 
 (q) Wiseman v. Westland, 1 Y. & 
 J. 117. 
 
 (r) Tourle i. Rand, 2 B. C. C. 650 ; 
 Harper v. Faulder, 4 Madd. 129. 
 
 (s) Strode v. Blackburne, 3 Ves. 224. 
 
 (t) Davies v. Vernon, 6 Q. B. 447. 
 (m) Hollis V. Claridge, 4 Taunt. 807. 
 (v) Smith V. Chichester, 2 Dr. & 
 Warr. 399. 
 
 (or) Berney v. Sewell, 1 Jac. & W.647. 
 (y) Booth V. Booth, 2 Atk. 343. 
 {z) Davis V. Battine, 2 R. & M. 76.
 
 REMEDIES OF MORTGAGEE AND MORTGAGOR OF LAND. 
 
 359 
 
 not have arrived) (a), resort to his equitable remedies. These 
 are of three sorts : — 
 
 Foreclosure. 
 
 Redemption. 
 
 Sale, under the Court. 
 
 These equitable remedies, however, will be seldom resorted to 
 by him, in practice, where he possesses any non-judicial ones; 
 e, g. where a power of sale exists, it will be unnecessary for him 
 to come into Equity to sell. He has the remedy in his own 
 hands. However, if he chooses, he may resort to his judicial 
 remedy in preference. 
 
 By a foreclosure suit, the mortgagee calls on the mortgagor to Foreclosure. 
 redeem his estate presently, or in default thereof to be for ever 
 foreclosed, or barred, from any right of redemption ; whereby, 
 after foreclosure, the estate becomes the absolute property of the 
 mortgagee to all intents and purposes. The mortgagee may sue 
 on his bond, and then foreclose for the remainder ; or may, after 
 he has obtained a foreclosure decree, sue on his bond or 
 covenant, if the value of the estate is insufficient to pay his 
 debt ; but he thereby opens the foreclosure, or, in other words, 
 gives the mortgagor a renewed right to redeem (b). However, 
 if he has sold the estate after a foreclosure decree, he cannot so 
 sue (c). 
 
 The foreclosure decree does not direct the delivery up of the 
 title deeds by the mortgagor to the mortgagee, in case of fore- 
 closure ; unless, perhaps, there were a special contract between 
 them for their delivery. Therefore, where the mortgage is for 
 years, the mortgagor, as the freeholder, is still entitled to retain 
 them {d). 
 
 If the mortgagee have lost the title deeds, payment will, on a 
 bill of foreclosure, be decreed ; and on payment, a reconveyance 
 with a bond of indemnity by him to the mortgagor against the 
 risk arising from the loss (e). 
 
 The time within which the mortgagor is decreed to pay is 
 generally six months ; but he may procure this time to be ex- 
 tended. It has been extended as much as four times (/). The 7 Geo. 2, c. 20. 
 Court may, on the application of all the parties entitled to 
 
 (a) Edwards v. Martin, 4 W. R. (rf) Wiseman v. Westland, 1 Y. & J. 
 
 219. 117. 
 
 (6) Lockhart v. Hardy, 9 Beav. 349, (e) Shelniardine v. Harrop, Madd. & 
 
 and cases collected, p. 358 (n.). Geld. 39. 
 
 (c) Ibid. (/) Edwards D.Cunliffe,! Madd. 287. 
 
 A A 4
 
 360 
 
 MORTGAGES OF PERSONALTY REMEDIES. 
 
 redeem, and admitting the mortgagee's right, make, before the 
 hearing, such a decree as it might have made at the hearing (A) : 
 but not, if the right to redeem is controverted, nor where the 
 mortgagee denies the defendant's right to redeem, nor to the 
 prejudice of subsequent incumbrancers (i). 
 Redemption. A foreclosure suit against the mortgagor may, it is obvious, 
 
 be at the same time a Redemption suit as against other and prior 
 mortgagees— prior, that is, not only in point of time, but of pre- 
 ference. But this will be more fully considered when we come 
 to treat of the rights of mortgagees inter se (A). 
 ^^^^- If the suit pray foreclosure, the Court of Chancery may, — on 
 
 the request of the mortgagee, or of any one claiming under 
 him, or (if the mortgagee consent) of any subsequent incum- 
 brancer, or of the mortgagor, or of any one claiming under them 
 respectively, — direct a sale of the property instead of foreclosure, 
 without determining the priorities of incumbrancers, or giving 
 time to redeem (Z). 
 
 But the consent of the mortgagee must be obtained, unless the 
 party, applying for the sale, deposit a sufficient fund in Court to 
 answer the requirements of the Court(m). 
 
 The mortgagee may, it appears, independently of the above 
 Act, or of his non-judicial remedy by sale, where there is such a 
 power, have, where the security is scanty, a decree for sale 
 instead of foreclosure (n). But if he chooses a sale, he intro- 
 duces a new mode of winding up the estate not within his con- 
 tract (o), and is suppored to have a benefit which a foreclosure 
 would not give him, that of obtaining the proceeds of the sale and 
 recovering the rest from the estate. This he would not otherwise 
 do, without the risk of opening the foreclosure (p). 
 
 The sale may be either by auction or private contract, and will 
 be conducted according to the ordinary rules of sales by the 
 Court. The Judge's clerk will first advertize the sale in the 
 Gazette, and public London or country newspapers (q). An 
 abstract of the title will be laid before the conveyancing counsel 
 appointed by the Court. The Court will thereupon direct the 
 
 (h) 7 Geo. 2, c. 20, s. 2. (n) Fisher on Mortg. 168, 174. 
 
 (j) Ibid. s. 3. (o) Tipping v. Power, 1 Hare, 409. 
 
 (ft) Post, Ch. III., Sect. 2. (p) Ibid. 
 
 (0 15 & 16 Vict. c. 86, s. 48. (5) Ayckb. Ch. Pr. 429. 
 
 (m) Ibid.
 
 REMEDIES OF MORTGAGEE AND MORTGAGOR OF LAND. 361 
 
 conditions of sale, which shall specify a time for delivery of the 
 abstract to the purchaser (r). After preparation of them, and of 
 the particulars of sale, and a fixing by the Judge's clerk of re- 
 served biddings, if desirable, upon a surveyor's valuation, and 
 of the amount to be paid as deposit (s), the property is sold either 
 in London or the country. 
 
 The purchaser is let into possession and receipt, on payment 
 of his purchase-money, — for which payment an order is neces- 
 sary (t), and the vendor's solicitor may appear on the application 
 for such order, — and is thereupon entitled to a conveyance, 
 and, on the execution of the conveyance, to the delivery of the 
 title deeds, subject to the biddings being opened, and the con- 
 tract rescinded (ii). 
 
 If it appears for the interest of the parties, the sale may be by 
 private contract, and the Judge's clerk may receive proposals for 
 such sale (a;). 
 
 If two legal mortgages have become vested by consolidation in Consolidated 
 the plaintiff from the same mortgagor, the Equity of Redemp- 
 tion of both of which has become vested in the defendant, the 
 latter must redeem both, if he would avoid foreclosure of 
 either ( ?/). 
 
 The mortgagee, claiming also a bond debt, cannot tack both Tacking. 
 debts against the mortgagor, or against a purchaser from the 
 mortgagor of the Equity of Redemption, if the mortgage be in 
 fee (z) ; though it seems he may, if the mortgage be for a term of 
 years (a). 
 
 A mortgagee, who has been paid off, cannot tack to his mort- 
 gage a Judgment obtained, after the payment but before recon- 
 veyance, in an action on a covenant entered into before pay- 
 ment (b). " Where a mortgagor has covenanted by a separate 
 deed to pay a certain sum, it would be impossible to hold that 
 the mortgagee can, after the mortgage is paid off, resist a recon- 
 veyance, on the ground of the existence of a mere covenant which 
 may hereafter ripen into a Judgment "(c). 
 
 As regards the mortgagor's judicial remedies, which, of course, Mortgagor's 
 
 remedy. 
 
 (r) Ibid. affirmed on appeal, 2 De G. & J. 611. 
 
 (s) Ibid. p. 430. (z) 2 Spence Eq. Jur. 723. 
 
 (0 Ibid. p. 434. (a) Ibid.n. (d.) 
 
 {u) Ibid. p. 437. (b) Mayor and Corporation of Bre- 
 
 (x) Ibid. p. 441. con v. Seymour, 7 W. R. 380. 
 
 (y) Vint V. Padget, 6 W. R. 321 ; (c) Ibid.
 
 362 
 
 MORTGAGES OF PERSONALTY REMEDIES. 
 
 Marshalling. 
 
 No election 
 
 between 
 
 Creditors. 
 
 are in Equity only, he may bring, within any time (provided it be 
 within the time fixed by the Statute of Limitations), his bill to 
 redeem ; a remedy which, if the land is not mortgaged to its full 
 value, he will seek to avail himself of. He may redeem, even 
 after the mortgagee has recovered the land in an action of eject- 
 ment (d). 
 
 If the land be mortgaged beyond its full worth, then he will 
 leave the mortgagee to his remedies, and rather let it go, i. e., be 
 foreclosed, than redeem it. 
 
 Though technically the term "marshalling" (e) is applied to 
 assets in cases of administration, a species of it is applied to 
 cases inter vivos {f). Thus, if A. has a mortgage upon two dif- 
 ferent estates for the same debt, and B. has a mortgage upon one 
 only of them for another debt, he has a right to throw A., in the 
 first instance, for satisfaction upon the security, which he, B., 
 cannot touch, where by so doing he will not prejudice A. (g). 
 The mode of attaining this remedy is by bill in Equity, seeking 
 a declaration and decree to that effect. 
 
 But suppose the mortgagor to have mortgaged two estates to 
 A., and afterwards one of them to B. and the other to C, by dis- 
 tinct mortgages, who both have notice of A.'s, C. having notice 
 also of B.'s, B. could not throw the whole charge on the estate 
 mortgaged to C, for he has no superior equity to C, and, there- 
 fore, the charge of the first mortgage ought to be rateably appor- 
 tioned between B. and C. 
 
 The doctrine is applied also in favour of sureties {/i). 
 
 But, in all cases, the interposition always supposes, that the 
 parties seeking relief are Creditors of the same Debtor (i). " It 
 was never said, that if I have a demand against A. and B., a Cre- 
 ditor of B. shall compel me to go against A., without more"(^)- 
 
 The doctrine of election, or the obligation imposed on a party 
 to choose between two inconsistent or alternative rights or claims, 
 in cases where there is a clear intention of the person from whom 
 he derives one that he should not enjoy both (l), is utterly inap- 
 plicable to Creditors. It never has been so applied (/w), and 
 therefore need not be considered in a treatise like the present. 
 
 {d) Wms. Real Prop. 318. 
 (e) Ante, p. 298. 
 
 (/) Aldrich v. Cooper, 8 Ves. 388. 
 (g) Lanoy v. Duke of Athol, 2 Atk. 
 446. 
 
 (A) Story Ec^. Jur. sect. 638. 
 
 (i) Ex parte Kendall, 17 Ves. 520. 
 (Ic) Ibid. 
 
 (/) Story Eq. Jur. sect. 1075. 
 (to) Kidney v. Coussmaker, 12 Ves. 
 154.
 
 REMEDIES OF MORTGAGEE AND MORTGAGOR OF LAND. 
 
 3G3 
 
 1 he onlv non-iudicial remedy which an equitable mortgagee Remedies of 
 
 • 1 • • 1 Ii J J . ^ equitable 
 
 possesses against his mortgagor, is, where the deed contains mortgagee. 
 
 it, or is witliin 23 & 24 Vict. c.*145, by power of sale. Such a 
 
 power is often inserted, (whether the mortgage be of an Equity 
 
 of Redemption, or by an equitable owner, as a cestui que trust,) 
 
 as in tlie case of legal mortgages : but under it the estate must 
 
 be sold, subject to the existing mortgage (if any), if the mortgagee 
 
 do not concur : if he concur, then it may be sold, discharged Non-judicial. 
 
 therefrom, either upon the terms of the first mortgage being 
 
 paid thereout, or otherwise. An equitable mortgagee is not 
 
 entitled, for the same reason as a legal mortgagee (n), to distrain 
 
 without an express power (which is, however, sometimes given 
 
 him), nor has he a legal title to the rents ; but if they have been 
 
 paid to him, a Court of Law will so far recognize his equitable 
 
 right, as not to compel him to refund them (o). 
 
 The judicial remedies of an equitable mortgagee are, it is Judicial, 
 hardly necessary to observe, chiefly in Equity. However, if 
 there be in the instrument creating the equitable mortgage, as 
 there frequently is, a covenant for payment, he may sue on it at Legal. 
 Law, as a legal mortgagee may ; if there be no covenant, then he 
 may sue, as for a simple contract debt. But in no case whatever 
 can he bring ejectment, or trover, or detinue, for the deeds, as 
 neither the legal estate in the land, nor the legal right to the 
 deeds, is in him ; but if he has got the deeds, without notice of a 
 prior legal mortgage. Equity will not take them away from 
 him (p). 
 
 Where the agreement is to execute a legal mortgage (or for a Equitable. 
 deposit), he may also sue at Law for breach of such agreement 
 (if there be a good pecuniary consideration) ; and that, even 
 though the security be by simple deposit, without more ; every 
 such deposit implying such an agreement on the part of the 
 mortgagor (q). 
 
 Let us now consider his remedies in Equity; and first, of 
 mortgages of an Equity of Redemption. 
 
 1. If the mortgagor have given the mortgagee no notice of the Mortgagee of 
 prior mortgage, all right of redemption is, as we have seen, Spdol^^' 
 taken away from the mortgagor, and the (second) mortgagee shall 
 hold the lands as if his mortgage had been an absolute purchase, 
 with power to redeem the first mortgage (r). 
 
 (n) Ante, p. 353. (q) Malonet;.Geraghty, 3 Dr. & War. 
 
 (o) Sumpter v. Cooper, 2 B. & Ad. 246. 
 223. (r) 4 & 5 Will. & Mary, c. 16, s..3 ; 
 
 ( p) Head v. Egerton, 3 P. Wms. 280. ante, p. 339. 
 
 A A 6
 
 364. 
 
 MORTGAGES OF PERSONALTY — REMEDIES. 
 
 2. He may file his bill against the mortgagor for foreclosure 
 of the Equity of Redemption {s), without redeeming or offering 
 to redeem the first mortgagee, or* making him a party, or taking 
 any steps to get in the legal estate (t) ; or he may make his fore- 
 closure suit also a redemption suit, by offering or claiming to 
 redeem the first mortgagee, making him a party. 
 
 3. In his foreclosure suit he, or those claiming under him, may 
 obtain a decree for sale instead of foreclosure, in the same way 
 as a legal mortgagee may; provided the prior mortgagee, or 
 those claiming under him, consent (u). 
 
 Receiver. He may have a Receiver appointed by a Court of Equity, but 
 
 without prejudice to the right of the legal mortgagee, if any, to 
 take possession (x). 
 Mortgagee by The general relief in Equity for a mortgagee by simple deposit, 
 simp e eposit. ^^ y^^ ^ memorandum, without an agreement to execute a legal 
 mortgage, independently of 15 & 16 Vict. c. 86, s. 48, would 
 appear to be a declaration that the principal, interest, and costs 
 are a charge upon the estate, and that in default of payment the 
 mortgagee is entitled to foreclosure, free of all Equity of Redemp- 
 tion, and to have an absolute conveyance thereof (y). 
 
 It would appear also, that, independently of 15 & 16 Vict. 
 c. 86, s. 48, foreclosure is not his only remedy : but that he is 
 entitled to foreclosure or sale at his option ; to the latter, by his 
 equitable charge ; to the former, upon the strength of his im- 
 plied contract for a legal security (z), though it has been con- 
 tended by a learned writer that the proper remedy is sale only(o). 
 It seems, at least, clear, that he is entitled to a sale where the 
 property is leasehold (in which case he is entitled to the rents 
 from the date of the order of sale {b) ), or where the mortgagor 
 is dead (c). 
 Receiver ^e may obtain a Receiver from a Court of Equity, provided 
 
 the legal mortgagee, if any, is not in possession, and without 
 prejudice to his taking possession (d ). The 15 & 16 Vict. c. 86, 
 s. 48, applies to him. 
 Deposit with If the equitable mortgage be by deposit, accompanied by an 
 
 agreements agreement — perhaps if it be only a verbal agreement (e) — to 
 
 (s) Fisher on Mortg. 169. («) Ibid. 172. 
 
 (0 Slade V. Rigg, 3 Hare, 38. (a) 2 Spence, Eq. Jur. 792. 
 
 (w) 15 & 16. Vict. c. 86, s. 48. (b) Seton on Decrees, 212 (n.). 
 
 {x) Berney v. Sewell, 1 J. & W.647 ; (c) Brocklehurstj;. Jessop,7 Sim.438. 
 
 and cases cited pp. 649, 650 (n.). (d) 1 Jac. & Walk. 647. 
 
 (y) Seton on Decrees, 214; Fisher (e) Hockley w. Bantock, 1 Russ. 141 ; 
 on Mortg. 170. 2 Spence, Eq. Jur. 783, n. (e), 793.
 
 REMEDIES OF MORTGAGEE AND MORTGAGOR OF LAND. 365 
 
 execute a legal mortgage, the mortgagee may, on default, inde- 
 pendently of 15 & 16 Vict. c. 86, s. 48, have a decree for a spe- 
 cific performance of the agreement, by execution of a legal mort- 
 gage ( f) ; since his remedy ought to correspond as nearly as may 
 be to that of a legal mortgagee ( g). And it appears that, inde- 
 pendently of 15 & 16 Vict., foreclosure (upon the execution of 
 the legal mortgage and default in payment) is his only remedy (A), 
 unless the agreement contain a power of sale, for then he may 
 have a decree for sale, without affecting his right to foreclose (i). 
 However, under the 15 & 16 Vict., he may pray and have, subject 
 to the conditions of the Act, a sale like any other mortgagee. 
 
 The vendor's remedy for his lien — and so, mutatis mutandis. Vendor and 
 of a purchaser's lien — is a suit for a declaration that he is entitled P"'"'^"^^'^'^ ^°^ 
 to an equitable lien, and for an account, and payment by sale (Ji) 
 of the estate, or that a legal mortgage may be made (/); but he 
 may not sue simultaneously at Law on a bond for the purchase- 
 money, but will be put to his election in which Court he will 
 sue (»?). 
 
 Where the equitable mortgage is by way of charge, the mort- Equitable 
 gagee's only proper remedy against the land in Equity is a '^ '^'^°^" 
 sale (rt). 
 
 Where A. has agreed to lend B. money on mortgage, he has Agreement to 
 been held entitled to a specific performance of the agreement (o). "'°'''g^se- 
 
 Independently of 15 & 16 Vict. c. 86, s. 48, the mortgagee of a Mortgagee of 
 reversion may have a decree for sale (/>), and the mortgagee of '■^^'^^sion. 
 an advowson a decree for foreclosure {q) or sale(r). Of advowson. 
 
 Mortgagees of ships have the non-judicial remedy of sale (s) ; ofship. 
 they may also sue at Law on the covenant in their deed. 
 
 (/) Footneru. Sturgis, 5 DeG. &Sm. (w) Tipping «;. Power, 1 Hare, 410; 
 
 736. Fisher on Mortg. 169. 
 
 {g) Fisher on Mortg. 169. (o) Bass v. Clivley, Tamlyn, 80. 
 
 {h) Ibid. {p) How tj. Vigures, 1 Rep. Cha. 18. 
 
 (i) Ibid. p. 172 ; 2 Spence Eq. Jur. {q) Mackensie v. Robinson, 3 Atk. 
 
 793; Lister r. Turner, 5 Hare, 281. 559; Long ?>. Storie, 3 De G. & Sm. 308. 
 
 {k) Fisher on Mortg. 169 ; Tipping (r) Gardiner v. Griffith, 2 P. Wms. 
 
 V. Power, 1 Hare, 410. 403. 
 
 (/) Barker v. Smart, 3 Beav. 64. {s) 17 & 18 Vict. c. 104, s. 71. 
 
 (m) Ibid.
 
 ( 366 ) 
 
 Section 3. 
 Remedies of Mortgagees and Mortgagors of Personalty. 
 
 Ckoses in miction. 
 Stock. 
 
 Remedies of Mortgagee. 
 Remedies of Mortgagor. 
 Equitable Distringas. 
 Policies. 
 Fund in Court. 
 
 Stop Orders. 
 Shares. 
 
 Legacies and Residue. 
 Mortgagee v. Execution Creditors. 
 V. other Creditors. 
 V. Bankruptcy and Insolvency 
 Assignees. 
 
 Personalty in Possession. 
 
 Mortgagee v. Mortgagor. 
 
 V. ExecntioH Creditors. 
 V. Creditors under Trust 
 
 Deed. 
 V. Mortgagor Bankrupt. 
 V. Mortgagor Insolvent. 
 V. General Creditors. 
 
 Pledgee v. Pledgor. 
 
 Patvnbrokers' Act, 
 
 Ship Owners. 
 Inter se. 
 Ship's Husband. 
 
 1. 
 
 Stock 
 
 Glioses in And herein, first, of mortgages of choses in action, 
 
 action. Generally, as we have seen, a chose in action not being 
 
 assignable at Law, the mortgagee's remedies will be in Equity 
 only : whilst, if the mortgaged interest be reversionary, the 
 remedy is always there alone. 
 
 1. Stock — and here of stock in possession. 
 The non-judicial remedy of a legal mortgagee of stock 
 (i. e., where the stock has been transferred, in the Company's 
 books, to his name) is a sale (s), though there be no express 
 power to sell (t). 
 In possession. Before selling, however, he should give the mortgagor notice 
 of his intention to sell {u). 
 
 The mortgagee having thus the remedy in his own hands — a 
 remedy as good as any he could obtain by resorting to a Court of 
 Equity, — will not, where the question is one only between himself 
 and the mortgagoi', have any occasion to resort to a judicial 
 remedy. But if he does, there seems no instance of a decree 
 for foreclosure having been made of such an interest (x). 
 
 The decree to be made, if it were necessary for him, or he 
 wished, to come before a Court of Equity, would be sale (g). 
 
 The mortgagor, however, may bring a bill (z) to redeem the 
 stock (a). 
 
 Redemption. 
 
 («) Tucker v. Wilson, 1 P. Wms. 
 261 ; S. C. 1 B. P. C. 494. 
 (0 Ibid, 
 (u) Ibid. 
 (x) Slade v. Rigg, 3 Hare, 37. 
 
 (y) Dyson v. Morris, 1 Hare, 422. 
 
 (a:) Lockwood v. Ewer, 2 Atk. 303. 
 
 (a) Seton, 234, note ; though the de- 
 cree there referred to was for redemp- 
 tion of choses in possession.
 
 REMEDIES OF MORTGAGEES AND MORTGAGORS OF PERSONALTV. 367 
 
 If the mortgagor be only the beneficial owner of the stock, as Mortgagor not 
 
 1 i 1 11 /• r^ \ • , legal owner. 
 
 he cannot legally mortgage (^. e., transfer) it, the mortgagee 
 cannot avail himself of his non-judicial remedy of sale; but, 
 even without having* perfected his security as against third 
 persons by giving notice to the legal owner — which notice 
 seems necessary only as between himself and subsequent incum- 
 brancers (b) — he may resort to Equity, and obtain a decree for 
 foreclosure (c). 
 
 So where the mortgagor, being the legal owner of the stocky Legal owner. 
 has not transferred it in pursuance of his agreement to do so, 
 the mortgagee may bring a bill in Equity for an account of 
 what is due, and to have it transferred {d), if the agreement were 
 for value ; but if voluntary, he has no redress in Equity (e). 
 
 In any of the above-mentioned cases, the mortgagor may file 
 a bill to redeem the stock {f). 
 
 If the mortgagor's interest in the stock be reversionary — and Stock in re- 
 such interests are more usually the subject of mortgage than ^^'^^°"- 
 stock in possession — the mortgagee has no non-judicial remedy 
 by sale, unless a power is expressly given him by the instrument 
 of mortgage — but, whether it be so given him or not, he may at 
 any time after default bring his bill to foreclose (^). "Justice 
 requires, that if it is valueless in the market for the purposes of 
 sale, the mortgagee shall have the option of taking it in specie, for 
 the chance of what it may turn out to be worth in specie" (//.). 
 
 It would seem that the mortgagee is not obliged to submit 
 to a sale, (though such relief has been decreed, where the mort- 
 gage was of a contingent reversionary interest in stock, and the 
 decree was not made adversely to the mortgagee ;) (i) and that 
 foreclosure is his proper remedy. 
 
 The mortgagor of the reversionary interest may file a bill Mortgagor's 
 to redeem (k). '''^'^^^ 
 
 Another remedy in Equity for the equitable mortgagee of Equitable 
 stock in the public funds (as where the mortgagor has only a '^'^'""Sas. 
 beneficial interest in it, and so cannot transfer it to the mortgagee 
 in the Bank books), is to obtain from the Clerk of Records and 
 Writs in Chancery (as he may, as of course, without application 
 
 (6) Hobson v. Bell, 2 Beav. 23. {g) Wayne v. Hanham, 9 Hare, 62. 
 
 (c) Slade v. Rigg, .3 Hare, 38. (//) Slade v. Rigg, 3 Hare, 35. 
 
 {d) 2 Spetice Eq. Jur. 769. (j) Potiten v. Page, I Madd. Ch. Tr. 
 
 (e) Fortescue v. Barnett, 3 M. & K. 661' (3rd ed.) 
 43. (A-) 9 I^re, 64. 
 
 (/) Seton, 233.
 
 368 MORTGAGES OF PERSONALTY — REMEDIES. 
 
 to any Covirt), and serve on the Chief Accountant of the Bank of 
 England a writ of distringas, in the form in the schedule to 5 
 Vict. c. 5, forbidding the transfer of the stock, or payment of the 
 dividends thereon (/). 
 
 If no request to transfer the stock or pay the dividends be 
 made to the Bank, by the party in whose name the stock is 
 standing, the distringas remains effectual till it is removed. But 
 if such request be made, it operates only to stay the transfer or 
 payment for eight days from such request, unless the Court of 
 Chancery order the restraint to be continued ijn). The object of 
 the Act is merely to afford the mortgagee an opportunity of 
 instituting a suit ; the property being secured meanwhile. 
 Restraining If the stock mortgagee wishes to continue the restraint, he 
 
 order. ^^^ apply to the Court by motion or petition for an order, 
 
 without hill filed, restraining the Bank of England from per- 
 mitting the transfer, or paying the dividends (w): which order 
 has the effect of an injunction (o). He may apply for the re- 
 straining order in the first instance, instead of obtaining the 
 eight days' distringas. 
 
 The remedy given by sect. 4, extends to the case of any 
 
 mortgagee of stock or shares in any public Company, whether 
 
 incorporated or not {p). 
 
 2. 2. The assignment of a Policy of Assurance, and therefore a 
 
 ° ^^^' mortgage of it, which is a partial assignment, is (as we have seen) 
 
 Judicial operative only in the Court of Chancery {q). The judicial remedy, 
 
 reme y. therefore, also of the mortgagee is in Equity only. That remedy 
 
 is, where it is a case of simple assignment, a decree for sale (r) : 
 
 where the assignment does not stand alone, but in conjunction 
 
 with a mortgage of land, and the assignment contains no power 
 
 of sale, the mortgagee is entitled to retain the policy upon the 
 
 terms of the trust of the assignment, but not to a decree for 
 
 sale {s). 
 
 Non-judicial. The judicial remedy, however, here spoken of, of course does 
 
 not preclude the mortgagee from selling, without coming to 
 
 the Court, if his security contain a power of sale ; and this will 
 
 often be found a sufficient remedy. 
 
 3. 3. If the mortgaged property be stock or funds in the Court of 
 
 Fund in Court. 
 
 (/) 5 Vict. c. 5, s. 5. ( P) 5 Vict. c. 5, s. 4. 
 
 (m) 27 Consolid. Ch.Ord. Rules 3, 4. (-7) Ante, p. 348. 
 
 (n) 5 Vict. c. 5, s. 4. (r) Dyson v. Morris, 1 Hare, 422. 
 
 (0) 2 Dan. Ch, Pr. (Headl.)(3rd ed.) (s) Ibid. 424, 425. 
 1269.
 
 REMEDIES OF MORTGAGEES AND MORTGAGORS OF PERSONALTY. 3G9 
 
 Chancery, a " stop order," that is, an order that it shall not be 
 transferred or paid out of Court without notice to the assignee, 
 is his proper remedy. The order is obtainable upon peti- 
 tion (?<). 
 
 By procuring the order to be noted in the proper book at the 
 Accountant-General's Office, the mortgagee perfects his title as 
 against third persons, and acquires priority over incumbrancers 
 who have neglected this precaution (x). 
 
 The Accountant-General, however, is only an agent of the 
 Court, and not a trustee of the fund (?/), hence notice to him is not 
 equivalent to notice to a trustee ; and a prudent mortgagee will, 
 therefore, inquire of the trustees by whom the fund is paid into 
 Court, as well as at the Accountant-General's Office, whether 
 there is any existing stop order, or notice of any prior incum- 
 brance (z). 
 
 The trustee of a fund brought into Court, advancing money on 
 it after it is brought into Court, must himself obtain a stop order 
 to perfect his title (a). 
 
 He who first obtains a stop order will be preferred (b) ; but 
 when a mortgagee of a fund, not yet brought into Court, has 
 given due notice to the trustees of it, he will not be postponed 
 to a second incumbrancer, who, after it is so brought in, first 
 obtains a stop order (c). 
 
 The remedy of a mortgagee of a fund in Court, besides a stop 
 order, is to present a petition in the cause, praying for a sale of 
 it (if stock) and payment out to him (d): but if the assignor dis- 
 putes the title, a bill must be filed (e). If the Chief Clerk has 
 certified that the fund is affected by the incumbrance, the Court 
 will have ordered it to be carried over, in trust in the cause, to a 
 separate account : which will prevent any necessity, on the part 
 of the petitioner, of service on any of the parties to the cause, 
 except those interested in the fund (/), of notice of his petition. 
 
 A transfer of shares in a Company {e. g. a Banking Company) Shares. 
 by a shareholder, by way of mortgage, to secure an advance of 
 money, followed by payment off of the debt, makes the mortgagee 
 
 (m) 2 Dan. (Headl.) 1277. (&) Liveseyc. Harding, 23 Beav. HI. 
 
 {x) 2 Davidson's Convey. 951. (c) Swayne v. Swayne, 11 Beav. 463. 
 
 (y) Warburton t) Hill, Kay, 478. (d) Ayckb. Ch- Pr. 372; Seton, 25. 
 
 (s) 2 Davidson's Convey. 952; but (e) Wastell v. Leslie, 11 Jur. 29. 
 
 see Kay, 478. (/) In re Jervoise, 12 Beav. 209. 
 (a) Elder v. Maclean, 3 Jur. N. S. 283. 
 
 B B
 
 370 
 
 Legacies and 
 residue. 
 
 Mortgagee 
 
 V. 
 
 execution 
 Creditors. 
 
 other Cre- 
 ditors. 
 
 MORTGAGES OF PERSONALTY — REMEDIES. 
 
 a trustee for the mortgagor, and entitles him as such to be in- 
 demnified in Equity against all liabilities which he may have 
 incurred in that character, e.g., his liability to the debts of the 
 Company, after the mortgage debt was paid off (the Company's 
 rules preventing a re-transfer to the mortgagor, which he had in- 
 effectually applied for) (/). 
 
 But as to debts contracted between the transfer and the 
 payment of the debt, the mortgagor would not be liable ( g) to 
 indemnify the mortgagee. 
 
 A mortgage of Canal shares is generally in the form of an 
 absolute sale (/i), and accompanied by a defeasance. 
 
 Where the mortgage is of a legacy or residue, notice thereof 
 should, if the executor has not assented to the legacy or bequest, 
 be given to him by the mortgagee (i). Notice to a trustee of the 
 legacy, who was not executor, is not sufficient to vest in the 
 mortgagee that equitable possession of the legacy which is re- 
 quired, in order to postpone the subsequent incumbrancer, who 
 had taken the precaution of giving notice to the executor (A). 
 
 The mortgagee may, as the legatee himself might, have a 
 decree against the executor for an account, and (the executor ad- 
 mitting assets, or as far as they are sufficient), for payment (Z) : 
 even though the legacy charged were an expectant one only; 
 or against the mortgagor, a decree of foreclosure (m). 
 
 Let us now consider the rights of a mortgagee of a chose in 
 action, not, as we have hitherto considered them, as against 
 the mortgagor only and his particular assignees, but as against 
 his execution and other Creditors, where he is not bankrupt or in- 
 solvent, and his bankruptcy or insolvency assignees, where he is. 
 
 The question, as regards his execution Creditors, has been 
 before considered (n). As regards his other Creditors, the 
 13 Eliz. c. 5, has been held to apply to such things as may be 
 taken in execution, and as now almost all kinds of personalty 
 are liable to be taken in execution, or charged with the payment 
 of judgment debts (o), it would seem to apply as well to mort- 
 gages of choses in action (whether stock, shares, policies, funds in 
 Court or debts), as well as of personal chattels ; so that as against 
 
 {/) Phene v. Gillan, 5 Hare, 9. 
 
 (g) Ibid. 10. 
 
 (A) 5 Jarm. Byth. (Sw.) 298. 
 
 (») Coote on Mortg. 231. 
 
 (*) Holt V. Dewell, 4 Hare, 451. 
 
 (Z) Cafe V. Bent, 5 Hare, 24 ; Bennett 
 V. Cooper, 9 Beav. 252. 
 
 (m) Dyson v. Morris, 1 Hare, 416. 
 (n) Ante, p. 68. 
 (o) Wms. P. P. 237.
 
 REMEDIES OF MORTGAGEES AND MORTGAGORS OF PERSONALTY. 371 
 
 such Creditors, such a mortgage is "an alienation of goods and 
 chattels " within that Act, and, if " devised and contrived of 
 malice, fraud, covin, collusion, or guile, to the end, purpose, and 
 intent to delay, hinder or defraud Creditors," void both at Law 
 and in Equity, at least if the Creditors are Judgment Credi- 
 tors (p). 
 
 But mortgages of choses in action do not require registration 
 under 17 & 18 Vict. c. S^, to make them valid as against the 
 mortgagor's other Creditors. 
 
 As against the mortgagor's bankruptcy assignees, the words * g^j^J^ggg jj, 
 "goods and chattels," in the reputed ownership clause {q), include Bankruptcy. 
 choses in action(r) ; so that if they continue in his " order, pos- 
 session, or disposition " at the time of the bankruptcy, with the 
 consent of the true owner (in this case the mortgagee), the mort- 
 gagee will lose the benefit of his security, and only come in j)ari 
 passu with the general Creditors. But if all that the nature of 
 the property admits of, be done to perfect the mortgage, as, e. g., 
 if notice has been given to the Debtor (if the mortgage be of a 
 legal debt), and also to the trustees, if the mortgage be by a cestui 
 que trust, and the security, if any, delivered to the mortgagee, 
 the mortgage will be supported as against the assignees. 
 
 An omission, by the mortgagee of a fund in Court, to obtain a 
 *' stop order," will leave the fund in the order and disposition of 
 the mortgagor, so as to pass it to his bankruptcy assignees, even 
 though it be only a contingent reversionary interest in stock (5). 
 
 The same interpretation would probably be put on the reputed In Insolvency, 
 ownership clauses, in the Insolvent Debtors Acts ; so as to dis- 
 entitle the mortgagee of a chose in action to any preference as 
 against the mortgagor's insolvency assignees, unless the mortgage 
 were perfected in the way pointed out {t). 
 
 Personal chattels are generally, as we have seen, mortgaged by Form of Bill 
 a bill of sale. By it the mortgagor, in consideration of the loan, ° " ^" 
 grants unto the mortgagee, his executors, administrators and 
 assigns, the chattels, to hold to him and them, subject to a pro- 
 viso for redemption, of the same form, and, mutatis mutandis, the 
 same, as in mortgages of realty, viz., that if on demand by notice 
 in writing to the mortgagor by the mortgagee, the said mort- 
 gagor, his heirs, executors, administrators or assigns shall pay 
 
 {p) Ante, p. 14'. («) Bartlett r. Bartlett, 1 De G. & J. 
 
 iq) 12 & 13 Vict. c. 10(3, s. 125. 127. 
 
 (r) 5 Jarm. Byth. (Sw.) 261 ; Bartlett (0 1 & 2 Vict. c. 110, s. 57. 
 
 V. Bartlett, 1 De G. & J. 127. 
 
 B B 2
 
 .372 
 
 MORTGAGES OF PERSONALTY REMEDIES. 
 
 Mortgagee of 
 personalty in 
 possession. 
 
 Non-judicial 
 remedy. 
 
 Judicial. 
 In Equity. 
 At Law. 
 
 the sum advanced with interest after the rate, &c., and all sums 
 paid by the mortgagee for insurance of the goods, the aforesaid 
 mortgagee, his executors, administrators or assigns will re-assign 
 the said goods to the said mortgagor, his executors, administra- 
 tors or assigns. A proviso is also added, that until default in 
 payment of the principal or interest, the mortgagor shall remain 
 in possession ; and that upon default the mortgagee, his execu- 
 tors, administrators or assigns may enter, seize and take, and 
 keep possession of the said goods, and sell and give discharges 
 to purchasers, and be possessed of the monies to arise from the 
 sales, in trust to repay himself, and hand over the surplus to the 
 mortgagor, his executors, administrators or assigns. And the 
 mortgagee goes on to covenant to pay, not to remove the goods 
 assigned, to insure against fire (and that in default of his doing so 
 the mortgagee may; in which latter case the monies so advanced 
 shall be repaid him, or be a charge on the premises), that he has 
 a good right to assign, and for further assurance (w). 
 
 Upon the monies secured being paid off, a written memoran- 
 dum of satisfaction should be endorsed on the bill of sale. 
 
 As between mortgagor and mortgagee, delivery of possession 
 of the personalty to the latter is not (at least where the mortgage 
 is by deed) essential to complete his legal title, or entitle him to 
 his remedies (x); nor is notice to the legal owners, where the mort- 
 gage is by the beneficial owner (y); the doctrine of notice apply- 
 ing only to choses in action. " The omission of the mortgagee 
 to take possession is perfectly consistent with the deed," which 
 usually provides, that possession shall be retained by the mort- 
 gagor till default {z). Nor would such retention, even after de- 
 fault, invalidate the transaction as between the mortgagor and 
 mortgagee, even if it does as against other Creditors. 
 
 Upon default, the deed generally gives the mortgagee a power 
 to take possession and sell ; and therefore the mortgagee will 
 have sufficient non-judicial remedies in his hands to prevent the 
 necessity of his resorting to judicial ones. He may, however, 
 sue, and have a decree, in Equity for foreclosure or sale (a). 
 
 After demand and default in payment, but not before (5), the 
 
 («) For a precedent, see Millar & 
 Collier on Bills of Sale, p. 279. 
 
 {x) 5 Jarm. Bytli. (Sw.) 244 ; 2 Bull. 
 N.P. 358. 
 
 (y) But see Millar & Collier, 181. 
 
 (a) Martindale v. Booth, 3 B. & Ad, 
 
 498. 
 
 (a) Coote on Mortgages, 237 ; Kemp 
 V. Westbrook, Bell's Suppl. to Ves. sen. 
 141. 
 
 {b) Bradley v. Copley, 1 C. B. 685.
 
 REMEDIES OF MORTGAGEES AND MORTGAGORS OF PERSONALTY. 3T3 
 
 mortgagee may maintain trover against any stranger in whose 
 possession the goods are, or against the mortgagor, if he refuse 
 to deliver them. The mortgagor may also sue and liave a decree 
 in Equity for redemption (c). 
 
 The chief questions, which arise upon mortgages of personal ,v 
 
 1 . • • 1 1 1 u Creditors 
 
 chattels in possession, arise between the mortgagee and subse- under Trust 
 quent execution and other Creditors, or the Bankruptcy or Deed. 
 Insolvency assignees of the mortgagor. 
 
 As against execution Creditors, Creditors claiming under a 
 general assignment for the benefit of Creditors, and the mort- 
 gagor's Bankruptcy or Insolvency assignees, the mortgage must 
 be registered (d) ; not, however, that registration alone makes it 
 valid (e). But if the mortgage be of land, and of fixtures attached 
 thereto, it need not be registered ; for they pass by a grant of 
 the land(/). The rights of mortgagees versus execution Credi- v. 
 tors have been before considered (g). Credhors. 
 
 If the mortgagor becomes bankrupt, (and this remedy applies ^ 
 to all classes of mortgagees, whether legal or equitable, whether Assignees in 
 of real or personal estate,) whether by deed or not, provided the 
 mortgage be valid against the Bankruptcy assignees, (as e.g., in 
 the case of a mortgage of personal chattels, if it be duly regis- 
 tered within twenty-one days of its date, and the mortgagee's 
 title is good under the reputed ownership clause,) the Court of 
 Bankruptcy may, on the motion of the mortgagee, (which, how- 
 ever, he is not bound to make,) supported by affidavit, inquire 
 into his title and the circumstances of it, take an account of the 
 principal, interest and costs due to him, and sell the mortgaged 
 property (A), paying him out of the proceeds, and allowing him 
 to prove as a Creditor for the deficiency, if any, rateably with 
 the other Creditors, and without disturbing former balances (i). 
 
 As against the mortgagor's Bankruptcy assignees, the question 
 will be whether, by the consent of the true owner, the mortgaged 
 property remained, at the time of the adjudication of Bankruptcy, 
 in his possession, order or disposition, as apparent owner thereof, 
 or as having taken on himself the sale, alteration, or disposition 
 thereof as owner (A). If such be the case — and hei'ein lies the 
 chief disadvantage of mortgages oi choses in possession — (and no 
 
 (c) Seton, 233. {h) 12 & 13 Vict. c. 106, s. 1S4 ; and 
 
 (rf) 17 & 18 Vict. c. 36, s. 1. Rule 55 in Bankruptcy. 
 
 (e) Ante, p. 67. (i) Rule 57 in Bankruptcy. 
 
 (/) Mather v. Fraser, 2 K. & J. 536. (A-) 12 & 13 Vict. c. 106, s. 125. 
 
 (S) Ante, p. 67.
 
 374 MORTGAGES OF PERSONALTY — REMEDIES. 
 
 question arises here (/), as under the Act of Elizabeth presently 
 to be mentioned, as to whether the possession is or is not con- 
 sistent with the nature of the deed) — the Court of Bankruptcy 
 has power to order the goods and chattels to be sold for the 
 benefit of the general Creditors (m), and the mortgagee will 
 lose the benefit of his security. To support the mortgage, the 
 best ti'ansmutation of apparent ownership must be made, that 
 the nature of the property admits of; as, if the goods be in 
 a warehouse, the delivery of the key of the warehouse (?0 ; 
 transmutation from hand to hand is not in all cases neces- 
 sary. 
 
 Transfers of any goods or chattels, conveyances or equitable 
 mortgages by the bankrupt, by way of fraudulent preference of 
 any Creditor, are void as against the Assignees (o). 
 In Insolvency. The same is Law, as against the Insolvency assignees of the 
 mortgagor, if the mortgagor be an Insolvent Debtor within the 
 1 & 2 Vict. c. 110 ; for if he shall, at the commencement of his 
 imprisonment, by the consent and permission of the true owner 
 thereof, have in his possession, order or disposition, any of the 
 mortgaged goods or chattels whereof he was reputed owner, or 
 whereof he had taken upon him the sale, alteration or disposition 
 as owner, the mortgagee will lose the benefit of his security as 
 against the provisional assignee (p). 
 
 And a similar provision is made with respect to un-imprisoned 
 Insolvent Debtors within 5 & 6 Vict. c. 1 16, and 7 & 8 Vict, 
 c. 96 iq). 
 „, The mortgagee's title, however, may be bad, as against other 
 
 other Creditors. Creditors than the mortgagor's execution Creditors, and in other 
 events than the mortgagor's bankruptcy or insolvency. Thus, 
 notwithstanding the bill of sale may have been registered, if the 
 mortgage were made to delay, hinder or defraud, any of the 
 mortgagor's Creditors, it is as utterly void, as against them, as 
 an assignment of a chose in action, both at Law and in 
 Equity (r). 
 
 If registered, however, it would, though fraudulent, be valid 
 as against Creditors of the mortgagor claiming under a general 
 assignment for their benefit, if the Creditors, against whom the 
 
 (0 5 Jarm.Byth. (Sw.) 248,2,59. (p) Sect. 57. 
 
 (m) 12 & 13 Vict. c. 106, s. 125. (-7) See 7 & 8 Vict. c. 96, s. 17. 
 
 (n) Ryall v. Rowles, 1 Ves. sen. 361. (r) 13 Eliz. c. 5 ; ante, p. 370. 
 (0) 12 & 13 Vict. c. 106, s. 133.
 
 REMEDIES OF MORTGAGEES AND MORTGAGORS OF PERSONALTY. 375 
 
 roortgage will be void undei- 13 Eliz., must, as there is ground 
 for holding they must, have obtained a judgment (s). 
 
 And a bond fide purchaser for value from the mortgagee, and 
 without notice of the fraud, is safe as against the Creditors (0- 
 
 The great question under the above statute of course is, what 
 is evidence of a fraudulent intent ? and this question will, as 
 regards personal chattels generally, resolve itself into this other, 
 viz., whether the possession is consistent with the deed ; and 
 here an important difference exists, as has been before intimated, 
 between mortgages and absolute sales. A possession which 
 would, in the case of an absolute sale, be evidence of fraud, is no 
 evidence, or, at least, no more i\\a.x\ prima facie (u) evidence of it 
 (capable of being rebutted) in the case of a mortgage. On the 
 other hand, the mortgage may be void, under the above statute, 
 as fraudulent, although made for valuable consideration (x). 
 
 If the personalty be pledged, then, although a time for redemp- Pledges. 
 tion is fixed, the pledgor may still redeem afterwards (within 
 a reasonable time). If no time is mentioned, he has his whole 
 life to redeem in, (urdess he be called on by the pledgee to 
 redeem,) and his personal representatives may redeem after his 
 death. 
 
 Generally this redemption by the pledgor or his representa- Pledgor. 
 tives is, if the agreed time for redemption is not passed, at Law, At Law. 
 by action of trover upon a tender of the debt (y). But in special in Equity, 
 cases, as if an account is wanted, or the pledgee has assigned 
 the pledge, or there is a question of tacking (z), or the time 
 agreed on for redemption by him is passed, so that his remedy is 
 excluded at Law (a), his remedy is by Bill in Equity. So the Pledgee 
 pledgee might, by the Common Law, compel a redemption by 
 the pledgor, and in default a foreclosure ; and if the pawn be 
 lost without his fault, he may still bring an action for the debt 
 against the pawnor (b). 
 
 So the pledgee, it would seem, has a non-judicial remedy of 
 sale without any express power to sell given him, if the time for 
 redemption has passed, and (in the case of no time for redemp- 
 tion being fixed) (c) if he has given notice to the pledgor of the 
 intention to sell. 
 
 («) 4 Cruise Dig. 425; Colman v. (ij) Green v. Farmer, 4 Burr. 2214. 
 
 Croker, 1 Ves. jun. 161. (z) 2 Spence, Eq. Jur. 772. 
 
 (0 13 Eliz. c. 5, s. 6. (a) Ibid. 773. 
 
 (m) Coote on Mortgages, p. 241 (3rd (b) 2 Salk. 522. 
 
 ed.) (c) Pothonier v. Dawson, Holt, N. P. 
 
 (x) Cadogan v. Kennet, Cowp. 434. Rep. 383. 
 
 B B 4
 
 376 
 
 MORTGAGES OF PERSONALTY — REMEDIES. 
 
 Pawnbrokers' 
 Act. 
 
 may tack. A subsequent advance by the same pledgee will be presumed 
 
 to have been made on the credit of the pledge in his hands, so 
 as to entitle him to call on the pledgor to pay the subsequent 
 debt as well as the original one {d) ; but such presumption does 
 not arise, if he took a bond for the second advance {e). 
 
 Sub-pledge. And where the pledgee has sub-pledged the chattels, the 
 
 pledgor being privy, and not objecting to dealings with them by 
 the sub-pledgees as their own, Equity will not, at the instance of 
 the pledgor, restrain the sub-pledgees from selling (/). 
 
 But the usual course is for them to sue in Equity to foreclose or 
 sell ; and by the sale they can pass an absolute title to the vendee. 
 By the Pawnbrokers' Act (^), all pledges to pawnbrokers shall 
 be deemed forfeited and may be sold at the end of one year, 
 exclusive of the day of pledging the same, (if the sum lent on 
 them was between 10s. and \0l.), by public auction, by order of 
 the pawnbroker (h); and if any goods pawned for more than 10s. 
 fetch on such sale more than the principal money and profit due 
 thereon, the surplus shall be paid, on demand, to the pawnor, 
 his executors, administrators or assigns, if such demand be made 
 within three years after the sale, the necessary costs and charges 
 of sale being first deducted {i). This seems to lead to the in- 
 ference, that if not demanded, the overplus need not be repaid A). 
 
 Interest. The Pawnbrokers' Act is not affected by the Act repealing the 
 
 Usury Laws (/). The profit allowed is according to a specified 
 scale, which allows for every pledge on which any sum between 
 42s. and 10/. has been lent, the rate of Sd. for every A I. per 
 calendar month (m), and so for every fractional part of a month. 
 Where the sum lent is less than 10s., the pawnbroker may take 
 one halfpenny for each note or memorandum which he is obliged 
 to give at the time of taking the pawn (n). 
 
 Ship-owners. Where any liability has been incurred by any ship-owner 
 in respect of loss of life, or loss of or damage to ships, 
 boats or goods, and such claims are made on him in re- 
 spect thereof, the High Court of Chancery, or any superior 
 Common Law Court or Judge (o), and in any British possession 
 any competent Court, may entertain proceedings at the suit of the 
 
 (rf) 2 Fonbl. Treat. Eq. 275. 
 
 (e) Demandray v, Metcalf, 2 Prec. 
 Ch. 420. 
 
 (/) Nicholson v. Hooper, 4 M. & 
 Cr. 186. 
 
 ig) 39 & 40 Geo. 3, c. 99. 
 
 {h) Ibid. s. 17. 
 
 (J) Ibid. s. 20. 
 
 {h) Fitch V. Rockfort, 13 Jur. 31G. 
 (/) See 17 & 18 Vict. c. 90, s. 4. 
 {m) 39 & 40 Geo. 3, c. 99, s. 2. 
 (w) 23 & 24 Vict. c. 21, s. 1. 
 (o) 23 & 24 Vict. c. 126, s. 35.
 
 REMEDIES OF MORTGAGEES AND MORTGAGORS OF PERSONALTY. 377 
 
 owner for the purpose of determining the amount of such liabi- 
 lity, and for distributing such amount rateably amongst the 
 claimants, with power to stop all actions and suits about the same 
 matter in any other Court ; and to make regulations respecting 
 parties to such proceedings, and as to excluding those who do 
 not come in within a given time, and as to requiring security 
 from the owner, and as to costs {n). 
 
 This Jurisdiction is subject, however, to the right previously 
 given by the Act to the Board of Trade, to institute proceedings, 
 and for the purpose of recovering damages, in respect of loss of 
 life or personal injury (o). 
 
 The ordinary mode for part-owners of ships to obtain an Ship's Ims- 
 adjustment of the ship's accounts, is by suit in a Court of Equity: 
 they may, however, preclude all dispute by appointing a ship's 
 husband or managing owner from among themselves, as their 
 agent, to whom the rest agree to delegate the care of their 
 interests. They may have an action against him, if he fail to 
 make up Ms accounts and divide the profits — and he, on the 
 other hand, may sue them at Law to recover money which he 
 has advanced for outfit beyond his proportion (/>); he not being a 
 partner, and therefore not incapacitated from suing by the 
 general rule of Law to which we have before referred (g). 
 
 The part-owners of a ship, being also the ship's husbands, 
 have no right as against another part-owner to assign the entire 
 freight for securing monies advanced to them (r). 
 
 (n) 17 & 18 Vict. c. 104, s.514. (q) Ante, p. 247. 
 
 (o) Ibid. 507. (r) Grison v. Trask,8 W. R. 266. 
 
 (p) Helme v. Smith, 7 Bingh. 709.
 
 ( 378 ) 
 
 CHAPTER III. 
 
 TRANSFERS. 
 
 Section 1. 
 Transfer of the Mortgage. 
 
 Transfer inter vivos. 
 
 By Legal Mortgagee. 
 
 Absolute Assignment. 
 Sub -Mortgage. 
 By Equitable Mortgagee. 
 
 By Mortgage of Personal Chattels. 
 
 Choses in Action. 
 Stamps. 
 
 Transfer by Will or Death. 
 Rights of Representatives of Mortgagee. 
 
 By legal 
 mortgagee 
 
 Absolute as- 
 signment. 
 
 Transfer inter A LEGAL mortgagee of land may, either before or after he enters 
 """'*• into possession, transfer his security and his debt, gr the debt 
 
 alone, reserving his security, either by act inter vivos or by will ; 
 and either by way of sub-mortgage or of absolute assignment. 
 If he transfer his debt, reserving his security, he may still fore- 
 close the mortgagor, but will be a trustee of the land for the 
 assignees of the debt (s). 
 
 And first, of an absolute transfer inter vivos. 
 
 It has been shown before, that a legal chose in action is not, 
 with some few exceptions, assignable at Law. A legal mortgage 
 debt is of this description. Therefore, whether the mortgage 
 deed does or does not contain a covenant or bond to pay, the 
 debt is, strictly, non-assignable, and the only mode in which the 
 benefit of it can be effectually transferred, so as to give the 
 assignee the same remedies at Law as the mortgagee, is by the 
 latter giving the former a power of attorney to sue for and recover 
 the debt at Law in his name (0- 
 
 An assignment of the debt, however, does not ipso facto carry 
 the land ; though a grant of the land carries the debt {u). The 
 land is transferable by any of the ordinary conveyances. 
 
 Upon the transfer of the debt and security, the assignee is 
 entitled to the mortgagee's non-judicial remedies of possession, 
 distress, and it should seem, sale, (if the power of sale in the 
 mortgage deed was expressly extended to the " assigns" of the 
 
 (s) Morley t;. Morley, 6 W. R. 360. 
 (/) Ante, " Assignment of Debts,' 
 
 p. 179. 
 
 (m) 2 Spence Eq. Jur. 655.
 
 379 
 
 TRANSFER OF THE MORTGAGE. 
 
 mort<raRee) (x), and also to his judicial remedies, whether Legal 
 TEVtable, except that, in suing at Law for the debt, he must 
 
 use the mortgagee's name. . 
 
 An assignment of the mortgage being an assignment of the 
 debt,-the debt following the estate, so that the estate ca,n,ot vest 
 in one person, and the right to receive the debt remam m another, 
 "the assignee of the security need not, to make the trunsacUon 
 „„m as between himself and the assignor g.ve ''» "- f/a' 
 notice of the assignn.ent ( ,j), the subject of the transfe, bemg an 
 "estate" and the doctrine of notice not applymg, as we have 
 seen (.) to land. But the assignee should, to make la.scfper- 
 TZU', as against third persons, or even <uja.mt tUrnortg.go^, 
 {t once .i^e notice to the mortgagor (<,) ; who otherwise ma, sf 1 
 s fely pay the mortgagee, and the assignee must allow such 
 pZeiUs(i). This notice will of course, however, be only 
 Tees ay when the mortgagor does not join in the transfer 
 uLly he does so join: indeed the assignee sh- < -qun 
 him to join, for he thereby gains the necessary adn ■...on by the 
 mortoaior of the state of the account between hnn and the 
 mortgagee, and of the allegation in ,he assignment that so much 
 
 '^ flubiortgagcor the mortgage of a mortgage requires a Su....«.a... 
 few words. The" mortgagee assigns the debt by deed, g,v,ng the 
 suI-mort»a.ee, if the mortgage be a legal one, a power of 
 :«orne; Vhim, his executors, administrators and assigns, o 
 sue receive and give receipts for the debt. And he conveys the 
 "nd ub ect to the Equity of Redemption then subs,stu,g herein 
 and also to the " proviso for redemption thereinafter contained, 
 
 vith tie usual covenants for title, power of sale, declaration of 
 TZy. of the purchase money, and that the sub-mortgagee 
 
 shall notbe bound to enforce any of his remedies (c). 
 
 An equitable mortgagee, by deposit of title deeds, may at any T.n.f^or 
 
 time transfer his interest to another, either absolutely or by way , 
 
 ITLtrlgage; and his mere delivery of tl« deeds will entitle on.„.. 
 
 the transferee to the remedies he himself had {d). 
 
 M the other species of equitahle mortgage of land we have 
 
 Pnumerated may be transferred either by way of absolute as- 
 
 "nt 0^ sub-mortgage, and the transferee be entitled to the 
 
 (,) Jones .. G.bbon, 9 Ves. ^K_)^^^ ^^^^^^^^^^ ^ ^^^ ^^_ ^^_ 
 
 («) Ante, p. 342 ^^.^^^^ ^^ ^^^^^^^ 52. 
 
 (o) 5 J arm. Byth. (»v\.) ^y<>- v >
 
 380 
 
 TRANSFERS. 
 
 Transfer of 
 mortgage of 
 personalty. 
 
 Of chosesin 
 action. 
 
 In possession. 
 
 Transfer 
 stamps. 
 
 remedies of the transferor. The transfer is generally, but not 
 necessarily, by deed ; but it must be in writing. Notice of the 
 transfer need not be given to the mortgagor, nor to the legal 
 owner (e). 
 
 The transfer of a mortgage, by an equitable owner, of per- 
 sonalty in action being the assignment of an equitable chose in 
 action, no power of attorney is nefcessary to enable the assignee to 
 sue in the assignor's name, since the assignee may sue in Equity 
 (where alone his I'emedy is) in his own name (f). But notice of 
 the transfer should be given by the transferee to the legal owner 
 of the fund, in order to perfect his title as against third parties, 
 though it is not necessary, in order to make the transfer valid as 
 between himself and the transferor (g). 
 
 Where A. agrees to secure certain monies to B., and B. 
 mortgages his interest under the agreement to C, and C. assigns 
 his sub-mortgage to D., D. may file a Bill in Equity against A. 
 for the specific performance of the agreement between him and 
 B.(/0. 
 
 As the legal ownership of personal chattels in possession 
 passes by a mortgage of them by the legal owner, the legal 
 mortgagee can assign the legal ownership, either absolutely or 
 by way of sub-mortgage, and therewith the rights of legal 
 owner, in the same way as he himself received them ; and thence- 
 forth the same remedies belong to the assignee as belonged to 
 him. But practically the assignee would for his security, take 
 a new bill of sale from the mortgagor. 
 
 If the mortgage passed only the equitable interest, then as 
 of course the mortgagee cannot assign more than he has, the 
 transferee succeeds only to the remedies of an equitable mort- 
 gagee. 
 
 The transfer of a mortgage, where no further sum of money or 
 stock is added to the principal (not exceeding 1,400Z.) already 
 secured, requires the same duty as a mortgage for the total 
 amount or value of such principal ; and, if such principal exceed 
 in the whole 1,400/., a IZ. 15s. stamp. And where any further 
 money or stock is secured, the same duty as on a mortgage for 
 such further money or stock. And in every other case a IZ. 1 5s. 
 stamp (i). 
 
 (e) Matthews t>. Wallwyn, 4 Ves. 118; 
 Wilmot V. Pike, 5 Hare, 14. 
 (/) 5 Jarm. Byth. (Sw.) 297, 
 (g) Ante, p. 188. 
 
 {h) Browne 
 Co., 6 W. R. 188. 
 
 (t) 13 & 14 Vict 
 " Mortgage." 
 
 London Necropolis 
 97; Sched.
 
 TRANSFER OF THE MORTGAGE. 381 
 
 No transfer (executed before 11th October, 1 850) requires an 
 additional stamp by reason of its containing, by the mort- 
 gagor or any one claiming by descent, devise or bequest 
 from him, any further security for, or agreement in relation to, 
 the old debt (A). 
 
 A mortgagee may devise the mortgage debt and security. It Transfer by 
 is manifest that the testamentary disposition of a mortgage pre- ^"'^ °^ '^^^^^' 
 sents two distinct subjects for consideration ; first, the devolu- 
 tion of the beneficial interest in the money ; secondly, the devise 
 of the land securing the debt, in respect of which land the 
 devisee is considered (at least in Equity), as a mere fiduciary 
 possessor. 
 
 The legal estate in a mortgage in fee will pass under a general 
 devise of all the testator's real estates, unless a contrary inten- 
 tion be collected (I). The legal estate in a mortgage for years 
 will pass by a general devise of lands, if there be no freeholds, 
 and if the will be subject to the New Wills Act, and the devise 
 contain nothing inconsistent, and there be no specific bequest 
 of the mortgage term (m). 
 
 If the mortgagor become entitled to the inheritance of the 
 land mortgaged, the charge will sometimes merge at Law, where 
 it will not in Equity, and vice versa. It will, in most instances, 
 merge in Equity, on the principle that " it is, with reference to 
 the party himself, of no sort of use to have a charge on his 
 own estate" (n), unless it can be shown to be beneficial to the 
 person in whom the union of interest occurs, that it should be 
 kept on foot, whether the mortgage be for years or in fee (o). 
 A will made since 1837, and containing general words, will pass 
 a foreclosed Equity of Redemption {p). 
 
 The words " mortgages," " securities for money," and similar 
 expressions, will pass the entire benefit of the mortgage se- 
 curity, including the inheritance in the lands, unless a contrary 
 intention appear in the will {q) ; but if merely " the money on 
 securities" be given, it will not pass the legal estate in the mort- 
 gaged estate (r). 
 
 {k) Ibid. s. 9; andSuppl. to Jarnian's (o) Ibid. 
 
 Conveyancing, pp. 155, 156. {p) 1 Jarm. Wills, 605. 
 
 (i) Lord Braybroke v. Inskip, 8 Ves. {q) Ibid. 600. 
 
 4:17. ('■) King's Mortgaged Estate, 16 Jur. 
 
 {m) 1 Jarm. Wills, 601. 1153 ; In re Cantley, 17 Jur. 324. 
 
 (n) Forbes v. Moffatt, 18 Ves. SSL
 
 tives of mort- 
 gagee, 
 
 382 TRANSFERS.. 
 
 If the mortgagee die intestate, the Law vests the mortgaged 
 land, if freehold or copyhold, in his heir at law or customary lieir, 
 and the debt in his administrator, or if the mortgage be lease- 
 hold, both the debt and the land in his administrator. 
 Representa- If the mortgagee die without having entered into possession or 
 
 receipt, and the mortgage has been paid to a person entitled to 
 receive it, or such person consent to an order for reconveying the 
 land, the Court of Chancery may, in the following cases, make 
 an order vesting the land in such person and in such manner as 
 it shall direct : — 
 
 1. Where the mortgagee's heir or devisee is abroad or cannot 
 be found. 
 
 2. Where such heir or devisee refuse, in writing, to convey, or 
 does not convey for twenty-eight days after a deed ten- 
 dered him for such purpose. 
 
 3. When it is uncertain, which of several devisees of the mort- 
 gagee was the survivor. 
 
 4. When it shall be uncertain, as to the survivor of several 
 devisees, or as to the heir of the mortgagee, whether he 
 be alive or dead. 
 
 5. When the mortgagee died without an heir, or it is not 
 known who is his heir or devisee (s). 
 
 (s) 13 & 14 Vict. c. 60, s. 19.
 
 ( 383 ) 
 
 Section 2. 
 
 Transfer of the Equity of Redemption— Priorities of Mortgagees. 
 
 Transfer of Equity of Redemption. 
 
 Mortgagee v. Prior Contractee. 
 
 Mortgagee v. Prior Voluntary Alienee. 
 
 Notice. 
 
 Legal V. Subsequent Mortgagee. 
 
 V. Prior Mortgagee with the Deeds. 
 Equitable Mortgagees inter se. 
 Tacking. 
 Lis Pendens. 
 
 Purchaser of Equity of Redemption v. 
 Subsequent Mortgagee. 
 
 Legal Mortgagee v. Subsequent Purchaser. 
 Equitable Mortgagee v. Subsequent Pur- 
 chaser. 
 Crown V. Equitable Mortgagee. 
 
 Escheat. 
 
 Mortgagees v. Creditors of Prior Mort- 
 gagees. 
 
 Ship Mortgages. 
 
 Priorities between Mortgagees of Per- 
 sonalty. 
 
 As the Equity of Redemption may, as we have seen (u), be mort- ^"^^JI^J^^^"*" 
 
 gaged toties quoties, and charged with the mortgagor's Judg- Redemption. 
 
 ments (x), so it may be ahened absolutely, entailed or devised (?/), 
 
 is subject to curtesy (z) and dower («), and is assets (&). And 
 
 all those who derive an interest from the mortgagor by purchase, 
 
 devise or otherwise, may redeem (c) ; even a lord to whom a 
 
 copyhold for years escheats for want of heirs (c?). 
 
 If the mortgagor be, at the date of the legal mortgage, under a Mortgagee 
 
 prior contract to sell for adequate value, the contractee will, in prior con- 
 
 Equity, be postponed to the mortgagee, if the latter had no "actee. 
 
 notice of the contract (e). But, at Law, the mortgagee may bring 
 
 ejectment, whether he had or had not such notice. 
 
 Supposing that the mortgagor had, prior to the mortgage, . »>• ^ 
 
 , , . .1 1 . -1 1- J xi- prior voluntary 
 
 whether it be a legal or equitable one, voluntarily aliened the alienee. 
 
 land, then the case will resolve itself into one under the 27 Eliz. 
 c. 4, and the mortgagee may obtain a decree declaring that he is 
 a purchaser within that Act, and that the voluntary conveyance is 
 void as against him, and for an account, and in default of pay- 
 ment a sale (/). Or he may proceed at Law, if it be a legal 
 mortgage, to recover possession by ejectment (^), for, as against 
 him, no legal estate has in fact passed by the prior conveyance, 
 even though it purported to pass it. 
 
 (w) Ante, p. 339. 
 
 {x) Ante, p, 38. 
 
 (y) Post, p. 389. 
 
 («) 2 Cruise Dig. 95. 
 
 (rt) 3 & 4 Will. 4, c. 105, S.2. 
 
 {b) Ante, p. 270. 
 
 (c) Ante, p. 356. 
 
 {d) Downe v. Morris, 3 Hare, 394. 
 (e) Finch v. Lord Winchelsea, 1 P. 
 Wms. 277. 
 
 (/) Lister D. Turner, 5 Hare, 281. 
 ig) Ante, p. 30.
 
 384 
 
 Notice. 
 
 Legal 
 
 V. 
 
 subsequent 
 Mortgagee. 
 
 prior Mort- 
 gagee with 
 deeds. 
 
 TRANSFERS. 
 
 The rights of purchasers of the Equity of Redemption as 
 against incumbrancers of the mortgaged property, depend almost 
 entirely, in Equity, on the equitable doctrine of Notice. These 
 rights will be best understood, therefore, in considering, as I 
 now proceed to do, that doctrine, together with the Priorities 
 of Mortgagees. This important and difficult subject appertains 
 exclusively to the Courts of Equity. A Court of Law knows 
 of no such woi'd in connexion with the present subject. 
 
 A prior legal mortgagee, wnth the deeds, is of course safe 
 against all subsequent equitable mortgagees (g), with or without 
 notice {h), for he has equal equity, and the exclusive legal right. 
 
 As against a subsequent mortgagee with the deeds, e. g., by 
 deposit, a legal mortgagee will or wuU not be preferred accord- 
 incf to the circumstances of the case. Prima facie, it was 
 neglect on his part not to take the deeds, or to part with them ; 
 and where there was such neglect, he w^ill be postponed, although 
 his mortgage was by demise (i) ; but if he did so under reason- 
 able or justifiable circumstances, he wnll not lose his priority, 
 even though the subsequent mortgagee had no notice {j). 
 
 In like manner, a subsequent legal mortgagee, though without 
 the deeds, may, if he has no notice, defeat a prior equitable one, 
 e. g., by deposit. The onus lies on the party having the deeds, 
 to show that he got them through gross negligence of the other 
 incumbrancer. The non-delivery of the deeds is not ground 
 for imputing fraud or gross negligence, if the non-delivery 
 were satisfactorily accounted for, or he bona fide inquired for 
 them (/i). 
 
 On the other hand, he will be properly postponed, if he make 
 no inquiry about the deeds {I). If thei-e is no evidence one way 
 or the other, the Court will not infer that no inquiry was 
 made im). 
 
 A mortgagee may purchase the Equity of Redemption (n), but 
 if he take a conveyance with a power of sale, he cannot (o). If he 
 purchase it, however, he cannot set up his mortgage against other 
 incumbrances, of which he had notice at the time of his pur- 
 chase (p). 
 
 (g) Bac. Abr. Mortgage, E. (3). 
 
 (;;) Finch!;. Shaw, 19 Beav. 500. 
 
 (t) Perry Herrick v. Attwood, 25 
 Beav. 205; 2 De G. & J. 21. 
 
 ij) 19 Beav. 500. 
 
 (k) Hewett v. Loosemore, 9 Hare, 
 449 ; Carter v. Carter, 3 K. & J. 646. 
 
 (l) Worthington v. Morgan, 16 Sim. 
 547. 
 
 (m) Allen V. Knight, 5 Hare, 272. 
 
 (n) Sugd. V. & P. 888. 
 
 (o) Downes v. Grazebrook, 3 Mer. 200. 
 
 (p) Greswold v. Marsham, 2 Cha. Ca. 
 170.
 
 TRANSFER OF EQUITY OF REDEMPTION — PRIORITIES. 
 
 38^ 
 
 As between equitable mortgagees, inter se, the general prin- Jj'[;;j'''J'^^^g 
 ciple used to be, " qui prior est tempore potior est jure." But it is inter se. 
 now ruled, in one branch of the Court of Chancery, that this 
 ground for preference is the one to be last resorted to in a con- 
 test between them {q). 
 
 A vendor's lien for unpaid purchase money has been, under 
 the circumstances, postponed to a subsequent equitable mortgagee 
 by deposit (r). But it is scarcely possible to lay down any 
 general principle. Every case stands more or less on its own 
 peculiar circumstances. 
 
 The three essential conditions of a claim to tack have been Tacking, 
 already pointed out as affecting Judgment Creditors {s). The 
 same rules prevail in the case of tacking as between mortgagees. 
 
 Under this doctrine, the general preference given to priority 
 of time is liable to be displaced. Thus, if a third mortgagee 
 without notice (at the time of making his advance) of a second 
 mortgage, obtains a transfer of the first mortgage, and thereby 
 acquires the legal estate, the fact of his having such notice at the 
 time of the transfer will not prejudice him {t). Nor is it material, 
 that the first mortgagee had notice of the second when he conveyed 
 to the third; for he is in the situation of a vendor to the third, and 
 knowledge by a vendor is not knowledge to a purchaser (m). 
 
 The following summary of the doctrine before us has been 
 given: — 
 
 A prior legal mortgagee, being without notice of a mesne 
 incumbrance, and having acquired, at any time before a Us 
 pendens aflfecting the securities and duly registered, a subsequent 
 charge on the estate, may tack debts by mortgage, judgment, 
 charge or statute, against the mortgagor and all claiming under 
 him. So may a puisne mortgagee, who, by purchase or otherwise, 
 has obtained a prior legal interest at any time before a decree to 
 account, in a suit affecting the priorities of incumbrances on the 
 estate, and without having had notice of prior incumbrances at 
 the time of lending on his original security (x). 
 
 A lis pendens, if registered (y), is of itself notice to purchasers Lh pendens. 
 and mortgagees, unless it be collusive {z). Filing the bill is the 
 commencement of a Us pendens (a). 
 
 (q) Rice V. Rice, 2 Drewry, 78. (x) Fisher on Mortg. 371. 
 
 (r) Ibid. 73. (!/) 2 & 3 Vict. c. 11, s. 7. 
 
 (s) Ante, p. 74. («) Sugd. V. & P. (13th ed.) 624. 
 
 (t) Peacock i;. Burt, Coote on Mortg. (a) Dart, V. & P. (3rd ed.; 559, 
 
 569. n- (m)- 
 
 (iO Ibiil. 
 
 C C
 
 386 
 
 TRANSFERS. 
 
 Legal Mort- 
 gagee 
 
 V. 
 
 subsequent 
 Purchaser. 
 
 Equitable 
 Mortgagee 
 
 V. 
 
 subsequent 
 Purchaser. 
 
 A Us pendens — which apphes only to suits in Equity — is 
 registered by leaving with the Senior Master of the Common 
 Pleas a memorandum of the name, usual or last known place of 
 abode, and the title, trade, or profession of the person whose 
 estate is intended to be affected thereby, and of the Court of 
 Equity, and the title of the cause or information, and of the day 
 when the bill or information was filed (c). 
 
 The above provision is extended, mutatis mutandis, to the 
 Palatine Chancery Courts (d). 
 
 The doctrine of the Court of Chancery, which seems now 
 firmly established, after opinions to the contrary (e), that a 
 plea of purchase for value without notice bars both a legal and 
 equitable title (/), (the principle of which doctrine depends 
 rather on the circumstance, that the mortgagee or purchaser has 
 bond fide paid his money without notice, than upon the nature of 
 the property purchased) (g) — while it prevents the Court from 
 giving assistance against such a purchaser, will not entitle him 
 to restrain in Equity the rights which a legal owner may have at 
 Law against him (A). 
 
 The principle on which a Court of Equity protects a pur- 
 chaser for valuable consideration without notice is wholly irre- 
 spective of what estate he has. It may be he has not the legal 
 estate ; and supposing the Court of Equity does refuse to inter- 
 fere against him, it will be quite unimportant. But his equity 
 depends on this, that he stands in at least as equitably favour- 
 able a position as his opponent, and therefore the Court will 
 not interfere against him (i). 
 
 This doctrine applies equally to realty and chattels (j). But 
 it will not " extend to cases where there is a legal mortgagee, so 
 as to say that he is not entitled to enforce the equitable remedy 
 incident to his security, against a subsequent mortgagee or pur- 
 chaser, without notice" (k) : nor even to the case of an equitable 
 mortgagee ; who will prevail in Equity against purchasers from 
 the Mortgagor, even without notice, whether they, the pur- 
 chasers, have or have not the legal estate. 
 
 If the legal estate in the mortgaged property escheat to the 
 
 (c) 2 & 3 Vict. c. 11, s. 7. 
 
 (rf) 18 & 19 Vict. c. 15, s. 3. 
 
 (e) Collins t;. Archer, 1 R. &M.284; 
 Williams v. Lambe, 3 B. C. C. 264. 
 
 (/) Joyce V. De Moleyns, 2 J. & 
 Lat. ol'i. 
 
 (g) Fisher on Mortg. 297. 
 (A) Att.-Gen. v. Williams, 17 Beav. 
 293. 
 
 (0 Colyer v. Finch, 5 H. Lords, 920. 
 
 (j) 2 J. & Lat. 378. 
 
 (A-) Finch v. Shaw, 19 Beav.- 507.
 
 TRANSFER OF EQUITY OF REDEMPTION — PRIORITIES. 387 
 
 Crown (as it would, on any cause of escheat, if the mortgage Equitable 
 were only equitable), the equitable mortgagee cannot as against ^ orgagee 
 the Crown obtain a sale, nor compel a conveyance of the legal Crown, 
 estate, but he may be decreed to hold possession until the Crown 
 redeem (l). 
 
 It was decided in an earlier case by Lord Langdale, that an 
 equitable mortgagee may sell as against the Crown. But in that 
 case the legal estate was not in the Crown (m). 
 
 The Acts which authorize mortgages by Commissioners and 
 other public bodies generally provide against any priorities of 
 their mortgages inter se. 
 
 Lands vested in one as mortgagee, do not escheat for any Escheat. 
 offence of his upon which attainder or conviction shall have fol- 
 lowed, but shall remain in him as if no attainder or conviction 
 had taken place. But every benefical interest of the mortgagee 
 as, e. g., an interest in the mortgage debt, as distinct from the 
 security, escheats or is forfeited («)• 
 
 Mortgagees of lands, whether legal or equitable, are safe at Law Paid off 
 and in Equity from judgments or Crown debts due from prior °^ o^S^^^' 
 mortgagees (whether prior to 26th April, 1855(0), or not,) of the 
 same lands, whose mortgages shall have been paid off before or 
 at the time of the execution of the subsequent mortgage (p). 
 
 If there is more than one registered mortgage of the same Ship Ship Mort- 
 or share therein, the mortgagees shall, notwithstanding any '^ 
 express, implied, or constructive notice, be entitled to priority 
 one over the other, according to the date at which each instru- 
 ment is recorded in the Register Book, and not according to the 
 date of each instrument itself (5-). 
 
 The rights of registered mortgagees of a ship are not affected 
 by any act of bankruptcy by the mortgagor after the mortgage 
 is recorded (r). 
 
 Generally, as between mortgagees of personalty, whether in Priorities as 
 possession or in action, of which the mortgagor is equitable J^.^^"''''^"i^p*"^' 
 owner (s), he who first gives notice of his incumbrance to the sonalty. 
 legal owner, and (in the case of choses in action) to the Debtor 
 also, will be preferred (t). But to gain such priority he must 
 be himself without notice of any prior incumbrance, and before 
 
 (0 Hodge V. Att.-Gen., 3 Y. 8f C. (q) 17 & 18 Vict. c. 104, s. 69. 
 
 (Exch.) 342. (; ) Ibid. s. 72. 
 
 (m) Prescottr. Tyler, 1 Jur. 470. (s) Fisher on Mortg. 400; Jones v. 
 
 (n) 13 & 14 Vict. c. 60, ss. 46,47. Jones, 8 Sim. 643. 
 (0) Greavesw. Wilson, 4 Jur. N.S. 802. (<) Cases collected in Coote on Mortg. 
 
 (/)) 18 & 19 Vict. c. 15, s. 11. 231 (n.) 
 
 c c 2
 
 388 TRANSFERS. 
 
 taking his security ought to inquire (as we have seen) if any 
 notice has been ah'eady given (ii). But this rule of notice 
 does not apply where the security is a negotiable instru- 
 ment (v). 
 
 Nor will a prior mortgagee be postponed to a second incum- 
 brancer, merely because the latter gives notice first, if the former 
 has done all in his power towards taking possession (w). 
 
 Where both incumbrancers are equally diligent in perfecting 
 their title, then they will rank inter se, as the rule used to be in 
 cases of equitable mortgages of realty (.r), according to the dates 
 of their securities. 
 
 As between several incumbrancers of a fund in Court, he who 
 first obtains a stop order is preferred ( y). 
 
 The mortgagee of a fund in Court has been preferred to an 
 extent of the Crown, though the assignee has not given notice 
 to the trustees(2r). 
 
 A second stock mortgagee, without notice of a first, has 
 gained priority by first lodging a distringas at the Bank, if 
 there were no trustees to whom notice could be given (a). 
 
 Where a Ci'cditor has a security on the equitable interest of 
 his Debtor, and of a surety, in a trust fund {e. g., in a rever- 
 sionary interest in a fund in Court), and, after perfecting his 
 security himself by obtaining a stop order, assigns the debt 
 and the securities, the assignee does not lose his rights against 
 the surety's interest, by omitting to give him notice of the 
 assignment. A surety, though a favoured Debtor, is still a 
 Debtor (h). 
 Transfer by Most of what has been said of Creditors generally after the 
 
 death of their Debtor applies to Mortgagees ; so that I shall 
 only point out their distinctive rights. As with other Creditors, 
 so with them, an additional remedy is given them after the death 
 of the Debtor. They may bring a Creditor's suit in Equity, and 
 may, unless they be vendors claiming a lien for unpaid purchase 
 money (c), proceed with such a suit simultaneously with their 
 
 (m) Smith V. Smith, 2 Cro. & Mee, (s:) Foster v. Hargreaves, 1 Keen, 
 
 237. 281. 
 
 {v) Ex parte Price, 3 Mont. Deac. & («) Etty v. Bridges, 2 Y. & C. N. S, 
 
 De G. 586. 486. 
 
 (w) Feltham v. Clark, 1 De G. cS: Sm. {h) Wheatley v. Bastow, 7 De G. M. 
 
 307. & G. 278. 
 
 {x) Ante, p. 385. (c) Ante, p. 34'2; Barker i;. Smark, 
 
 (y) Livesey V. Harding, 23 Beav. 142. 3 Beav. 64. 
 
 death of Mort- 
 gagor,
 
 TRANSFER OF EQUITY OF REDEMPTION — PRIORITIES. 389 
 
 remedies at Law ; and in such suit may prove for their (c/) whole 
 debt as general Creditors, and not only for so much as the mort- 
 gaged property will not pay. It is discretionary with them either 
 to proceed against the mortgaged estate, (if land,) in the hands of 
 the heir or devisee, or against the general personal estate in the 
 hands of the executor (e), i. e., to bring either a foreclosure or 
 Creditor's suit ; but not to bring both. 
 
 An equitable mortgagee by deposit may, after the death of 
 the mortgagor, come into Equity to have the estate affected by 
 his lien sold, and the proceeds applied in payment of his debt, 
 and to stand as a general Creditor for the deficiency, if any (/) ; 
 and so of all other equitable mortgagees. 
 
 On the death of the mortgagor intestate, the Equity of Re- Exoneration of 
 demption descends on his heir. If he dies testate it passes to ^^^^^' 
 his devisee. A question which often arises on these cases is, 
 whether the heir or devisee takes the estate cum onere. 
 
 If the mortgagor has died intestate before January, 1855, 
 so that the Equity of Redemption descends upon his heir, and 
 the case involves the rights of persons claiming under a deed, 
 will, or document made before 1855, the heir will be entitled, if the 
 mortgagee proceeds against the mortgaged realty, to have it ex- 
 onerated from the debt out of the general personal estate of the 
 intestate, provided that the mortgage debt was the personal debt 
 of the ancestor (g), or adopted by him (h), and provided that by 
 such exoneration he will not disappoint any more favoured 
 claimants to the personalty than himself (^). The claimants who 
 are considered more favoured are, any Creditor (k), or the widow 
 claiming her paraphernalia (/), or any general (m) or specific (n) 
 legatee. The principle of the doctrine of exoneration is, that the 
 mortgage is " looked on as a general debt, and the land only as a 
 security" (o). 
 
 The heir is also entitled to exoneration out of other portions 
 of the intestate's land. Thus he may be exonerated out of land 
 expressly devised to pay debts (p). 
 
 The same right to exoneration belongs to the general devisee Of devisee. 
 
 (d) Mason v. Bogg, 2 M. & C. 443, (A) Bartholomew v. May, 1 Atk. 487- 
 451. (0 Tipping v. Tipping, 1 P. Wms. 
 
 (e) 17 & 18 Vict. c. 113, s. 1. 730. 
 
 (/) Brocklehurst v. Jessop, 7 Sim. (w) Luthian v. Leigh, cas. t. Talbot, 
 
 442 ; Tipping v. Power, 1 Hare, 405. 53. 
 
 (g) Wms. Exors. 1535. (w) O'Neal v. Mead, 1 P. Wms. 691. 
 
 (h) Ibid. 1538. (o) 1 Atk. 487. 
 
 (J) Ibid. 1534. (jj) 2 Jarm. Wills, 526, 536.
 
 390 TRANSFERS. 
 
 of the mortgagor, with this further advantage that, as regards 
 real estate, his right will prevail against descended land, as well 
 as against land charged with, or devised to pay, debts {q). 
 And he will be entitled to contribution rateably against devisees 
 of land subject to a general charge of debts (r). 
 Oflecratee. ^^ a legatee of a mortgaged leasehold or chattel is entitled to 
 
 exoneration out of the general assets (s), but not as against spe- 
 cific legatees (t). 
 
 The mortgage debt will not be deemed the personal debt of 
 a purchaser from the mortgagor. The heir or devisee therefore 
 of such a purchaser must take the mortgaged land cum onere (u). 
 So if the heir or devisee of the mortgagor die leaving the debt 
 unpaid (x), or if the mortgage, though made by (and in that sense 
 the personal debt of) the heir or devisee, was made by him to 
 pay the ancestor's or devisor's debts or legacies (y), the heir or 
 devisee of the mortgagor's heir or devisee must take the land 
 cum onere. 
 
 As to what shall amount to an adoption of the mortgage debt 
 
 by a person whose original personal debt it was not, it can only 
 
 be said generally, that clear evidence of intention to adopt it must 
 
 be produced, in order to support such a conclusion (z). 
 
 17 & 18 Vict. Where the mortgagor has died since 1854, and the case does 
 
 not involve the rights of persons claiming under a deed, will, or 
 
 document made before 1855, neither the heir or devisee shall 
 
 (unless the mortgagor signify his intention that they shall) have 
 
 any right to exoneration (a), but the land shall be primai'ily 
 
 liable, and every part thereof bear its proportion of the debt (b). 
 
 Act affects But the legatee of a mortgaged chattel or fund, not having an 
 
 on y. interest in land, remains unaffected by the Act, and is therefore 
 
 entitled to exoneration as before it. And it seems, at the least, 
 
 doubtful whether it applies to the case of equitable mortgages. 
 
 If the mortgage be a legal one for years, and the legal rever- 
 ' sion escheats to the Crown on the death of the mortgagor 
 
 intestate and illegitimate, or without heirs, the Court will, in a 
 suit by his Creditors, order the land to be sold (c). 
 
 If the mortgaged property be sold after the mortgagor's death, 
 
 (q) Ibid. 535. (.r) Scott v. Beecher, 5 Madd. 96. 
 
 (r) Middleton v. Middleton, 15 Beav. (f/) Wms. Exors. 1537. 
 
 450. (z) Ibid. 1538. 
 
 (<) 2 Jarm. VTiils, 532. (a) 17 & 18 Vict. c. 113, s. 1. 
 
 (t) Ibid. 535. (6) Ibid. 
 
 («) Coote on Mortg. 476. (c) Rogers v. Maule, 1 Y. & C. N. R. 4.
 
 TRANSFER OF EQUITY OF REDEMPTION —PRIORITIES. 
 
 under a power of sale in the deed, the surplus proceeds belong 
 to his real representatives {d) : notwithstanding a direction to 
 pay them to the executors (e). . 
 
 The mortgagee of land may make an entry upon it, or bring f.^^^^; L^™^^' 
 an action at law (or suit in Equity) (/) to recover such land Mortgagee's 
 at any time within twenty years next after the time to enter, --^^-- 
 distrain or sell, first accrued to some one through whom he 
 claims, or after the last payment of any part of the principal or for land. 
 interest, although more than twenty years may have elapsed 
 since such right may have accrued {g). 
 
 A legal mortgagee is within sect. 24 of 3 & 4 Will. 4, c. 27, 
 and 7 Will. 4 & 1 Vict. c. 28, and must bring his foreclosure 
 suit within the time there mentioned {h). And the section com- 
 prises equitable as well as legal mortgages {i). If the mortgagee 
 is under the disability of infancy, coverture, idiotcy or lunacy he 
 has ten years after the cesser of the disability to enter, distrain 
 or bring an action at Law for the land (7). So much for the 
 time within which his remedies against the land must be 
 
 pursued. 
 
 His ricrht to recover the mortgage money falls (A) under 3 & 4 
 Will. 4, c. 27, s. 40, and 23 & 24 Vict. c. 38. s. 13, which enact, 
 that if the mortgagee do not bring his action or suit within 
 twenty years after a present right to receive the mortgage money 
 shall have accrued to some person capable of giving a discharge 
 for the same, the money shall be deemed to have been paid, for money. 
 unless in the meantime some part of the principal or interest has 
 been paid, or some acknowledgment of the right thereto given in 
 writing signed by ttie person liable to pay, or his agent, to the 
 person entitled to receive, or his agent. And so in the case of 
 mortgagees of rent-charges (Z). 
 
 And the mortgagee cannot, whether by distress, action or Arre^^^^sj^ 
 suit,— except against the mortgagor's heir seeking to redeem 
 (against whom he may tack twenty years' arrears (m)),— re- 
 cover more than six years' arrears of interest on his debt, to 
 be computed from the time the same became due, or a written 
 acknowledgment of its being due shall have been given to 
 
 (d) In re Clarke's Trusts, 22 L. J. (0 Ibid. 
 
 (Ch.)230. 0)3&4Will.4,c.27,s.l6. 
 
 (e) Fisher on Mortg. 640. (A) Sugd. Real P. Stat. p. 25. 
 (/) Hyde v. Price, 8 Sim. 578. (0 Ibid. s. 2. 
 
 (g) 3 & 4 Will. 4, c. 27, s. 2 ; 7 Will. (m) Du Vigier v. Lee, 2 Hare, 326 ; 
 
 ^: & 1 Vict. c. 28. Elvy v. Norwood, 5 De G. & Sm. 
 
 (/() Wrixon w. Vize, 3 Dr. & War. 104. 
 
 240. 
 
 c c 4
 
 392 
 
 TRANSFERS. 
 
 As regards 
 mortgagor. 
 
 Mortgagors of 
 rent-charges. 
 
 the mortgagee or his agent, signed by the mortgagor or his 
 agent (n). 
 
 But a puisne mortgagee may, where a prior mortgagee has 
 been in possession within a year before such puisne mortgagee 
 shall have brought his action or suit, recover interest for the 
 "whole time of such possession, though such time exceed six 
 years (o). 
 
 A mortgagor of land has twenty years to redeem in, where the 
 mortgagee has been in possession, from the time at which the 
 mortgagee obtained such possession, or from the time of a written 
 acknowledgment or of the last written acknowledgment of the 
 title of the mortgagor, or his right to redeem, given to him or 
 some person claiming his estate, or to the agent of such mort- 
 gagor or person, signed by the mortgagee, or person claiming 
 through him(/)); if there are several mortgagees the acknow- 
 ledgment by one shall not give the mortgagor a right to redeem 
 against the other ; and where the acknowledging mortgagee is 
 entitled to a divided part of the land, and not to an ascertained 
 part of the money, the mortgagor may redeem such divided part 
 by paying a proportionate part of the money {q). 
 
 Where a receiver has been appointed by the Court, his pos- 
 session is its possession, and its possession is that of the suitor, 
 and consequently such possession prevents time from running in 
 favour of a stranger to the suit (r). 
 
 The same rule as to limitation of time holds, in the case of 
 mortgagors of rent-charges. And there is no saving in favour of 
 mortgagors under disabilities. 
 
 The above limitation, however, as to redemption, would appear 
 not to apply to a Welsh mortgage, in which the stipulation is, 
 that the mortgagee shall hold and receive the rents till the debt 
 is satisfied, unless twenty years have elapsed since the mortgage 
 debt has been paid (s) by that means. 
 
 (n) Ibid. s. 42. 
 
 (o) Ibid. 
 
 Ip) Ibid. s. 28. 
 
 {q) Ibid. 
 
 (r) 3 Dr. & War. 123. 
 
 {s) Coote on Mortg. 178.
 
 ( 393 ) 
 Book II. 
 
 MORTGAGES BY AND TO SEVERAL. 
 
 CHAPTER I. 
 
 MORTGAGES BY SEVERAL. 
 
 Section 1. 
 Mortgages by several, not Partners. 
 
 Mortgages Uj Ordinary Trustees. j ^^--'J^^^t^/r.^rrro separate Use 
 
 By Turnpike road Trustees. - - 
 
 Transfer of Mortgage. 
 Mortgages of Poor-rates. 
 Mortgages by Executors and Adminis 
 trators. 
 
 Re<My. r T^ ■ X 
 
 Reservation of Equity oj 
 Redemption. 
 Chattels Real. 
 Personalty in Possession. 
 Paraphernalia. 
 Choses in Action. 
 
 ,M . J. rXr^sUoA nirnprt Choses in Action. 
 
 Mortgages hy Limited Oicners. ^^^^^^^ ^^ ^^^^^^^^ j^^^_ 
 
 Statutory Powers to mortgage. ^ Realty. 
 
 Non- Statutory Powers. \ Personalty. 
 
 A TRUSTEE has not any inhei^t power, by virtue of his office, Mortg^a^-^^ 
 
 to mortgage the trust property. To authorize him to do so, a 
 
 power to that effect must therefore be given h,m m the mstru- 
 
 ment creating the trust. And, accordingly, if the trust be what 
 
 is called constructive, i.e., arises by operation or mtendment of 
 
 Law only, no such power can be implied. 
 
 Such a power, however, may be implied where the tmst is of 
 the nature of e.rpress trusts. Thus from a power of sale (a), or 
 trust to sell, or from a charge by will of debts (5) on realty 
 there may be implied-though this cannot be taken as a general 
 rule-a power to the trustee to whom the power is given, or to 
 whom the estate is devised after the charge is imposed, to mort- 
 gaae ; and the mortgagee is exempted from seeing to the app i- 
 cadon of the mortgage money, unless the contrary be expressly 
 declared in the instrument creating the trust. 
 
 Trustees with a power of sale may, to raise money required 
 for equality of exchange, mortgage premises received m ex- 
 change for those sold or contained in renewed leaseholds (c). 
 
 And where, in the case of a will coming into operation after 
 13th Aucrust, 1859, the testator has devised to trustees his real 
 estate charged with the payment of his debts, without expressly 
 providing for the raising such debts thereout, the devisees in 
 
 (a) 1 Sugd. on Powers, 513. (c) 23 & 24 Vict. c. 145. s. 9. 
 
 (6) Ball V. Harris, 4 M. & Cr. 264. 
 
 ^ ' C C 5
 
 394 
 
 MORTGAGES BY SEVERAL. 
 
 Turnpike 
 Trustees. 
 
 Transfer. 
 
 Charge on 
 poor rates. 
 
 ]Mortgage by 
 Executors 
 
 of personalty, 
 
 trust and the survivors of them or their substitutes may raise 
 such debts by mortgage of the real estate, or part thereof, 
 reserving in the mortgage deed such a rate of interest, and 
 fixing such periods of repayment, as they think fit(rf). 
 
 The Act, however, is only prospective ; and it would there- 
 fore seem, that a purchaser from devisees in trust under a will 
 charging with land debts, but coming into operation before the 
 13th August, 1859, cannot safely complete, without either satisfy- 
 ing himself that all the debts have been paid, or else requiring the 
 executors to authorize the proposed payment of the purchase- 
 money to the vendors (e). 
 
 Turnpike roads are placed under the management of Trus- 
 tees or Commissioners, for a limited period, having toll-gates or 
 bars on them, which were originally called " turns," and were 
 first constructed about the middle of the last century (/"). The 
 General Turnpike Act authorizes the Trustees or Commissioners 
 to borrow money upon mortgage of the tolls (g), and gives the 
 form of mortgage (A). Tolls are a species of incorporeal heredi- 
 taments {i), and the mortgage of them conveys such an interest 
 in land as will support an ejectment (J) at the instance of the 
 mortgagee. 
 
 The mortgagees of turnpike road tolls may transfer their mort- 
 gages in a given form, to be indorsed on the mortgage security (k). 
 
 Owners of property and ratepayers in a parish may borrow 
 money for purposes of emigration, and charge it on the poor 
 rates (/) ; and the overseers or guardians may charge future 
 poor rates with monies borrowed to build, hire, alter, or en- 
 large (m) workhouses. 
 
 Executors may raise money required for the purposes of 
 the will, by mortgage of the personal assets, by virtue of their 
 office, whether the mortgage be of chattels in possesion, or of 
 choses in action, and whether the assets be assigned or pledged 
 merely (w). Nor is the mortgagee bound to see to the application 
 of the money, where the transaction is free from fraud ; his title 
 is complete by the mortgage and delivery ; what becomes of the 
 money is of no concern to him (o). But the legatee should 
 
 {d) 22 & 23 Vict. c. 35, ss. 14, 15. 
 
 (e) Dart. V. & P. 402. 
 
 (/) 6 M. & W. 438. 
 
 {g) 3 Geo. 4, c. 126, s. 81. 
 
 (/») Ibid. 
 
 (0 1 Blackst. (Steph.) 639. 
 
 {j) Cole on Eject. 91. 
 
 {k) 3 Geo. 4, c. 126, s. 81. 
 
 (0 4 & 5 Will. 4, c. 76, s. 62. 
 
 (m) Ibid. ss. 23, 24. 
 
 (?)) Coote on Mortg. 154. 
 
 (o) Scott V. Tyler, Dick. 725.
 
 NOT PARTNERS. 
 
 concur, since the executor may have assented to the legacy ; and, 
 if so, a mortgagee from the legatee might be preferred to a subse- 
 quent one from the executor (p). 
 
 A general charge of debts, without more, in a will, is, as we of realty, 
 have seen, a charge of them on the real estate (7), and if con- 
 tained in a will coming into operation after 13th August, 1859, 
 which does not vest the estate wholly in any trustee, enables the 
 original and derivative representatives to mortgage it (/). Before 
 the Act referred to, the executor could not, under such a power, 
 convey without the concurrence of the devisee or heir(s) (who 
 were however bound to concur) {t) : but now it appears he may ; 
 whilst, on the other hand, no conveyance by the heir or devisee 
 will be perfect without the concurrence of the executor (u). The 
 mortgagee need not inquire, whether the power has been duly 
 and correctly exercised (u). 
 
 In some instances, a power is given by Parliament— and M^[JgS<^^ ^y 
 modern legislation is rapidly multiplying them— or by the indi- J^^J^^g 
 vidual grantor, to limited owners, without which the donees 
 would not be able to mortgage, on account of their partial in- 
 terest in the property, but by virtue of which they are enabled 
 to charge it, as if they were absolute owners. Thus, 
 
 By the Land Tax Act, persons having limited interests in Statutory ^^^^^ 
 lands (except tenants at rack rent for years, and Crown tenants), P°g"' ° 
 may, for the purpose of redeeming any land tax charged thereon, 
 mortgage any freehold, copyhold, or leasehold land, by deed 
 indented and enrolled, free from the tax, either in fee or for 
 years, for securing such sums as shall be sufficient -to redeem the 
 tax. Prior mortgagees are not prejudiced by mortgages under 
 the Act, but shall have a preference to advance the money re- 
 quired to redeem the land tax(a;). Corporations or trustees for toredeemland 
 charitable purposes may mortgage for the same purpose (3/) ; or 
 in case the limited owner, liable to a share of the expenses, 
 choose to advance the money, the Commissioners may mortgage 
 
 the lands to him. 
 
 Under the General Inclosure Acts (z), limited owners may Under General 
 
 1 ,1 Inclosure Act. 
 
 charge their allotments with 5/. per annum towards the expenses 
 of the Act, and for such purpose mortgage for any number of 
 
 (p) Wms. Exors. 839, n. (i). («) Vaizey's I,d. St. Ld.'s Act, p. 57. 
 
 (q) Ante, p. 273. (v) 22 & 23 Vict. c. 35, s.l7. 
 
 (r) 22 & 23 Vict c. 35, s. 16. (^) 42 Geo. 3, c. 116, s. 51. 
 
 (s) Gosling r. Carter, 1 Coll. 649, 650. (y) 53Geo. 3, c. 123,s.24. 
 
 ,^) jbid (2)41Geo.3,c.l09;8&9Vict. c.118.
 
 396 
 
 MORTGAGES BY SEVERAL. 
 
 Under Drain- 
 age Acts. 
 
 Copyhold and 
 Charitable 
 Trusts Acts. 
 
 Non-statutory 
 powers. 
 
 Mortgages by 
 feme coverte. 
 
 Realty not 
 settled to sepa- 
 rate use. 
 
 years, but so that they shall, if tenants for life, covenant to 
 keep down the interest ; so that no future possessor shall be liable 
 to more than six months' interest ; and if incumbrancers keep it 
 down, and also pay one-thirtieth of principal every year — the 
 mortgagees to have the usual remedies of mortgagees. 
 
 Persons (a) in possession of land as limited owners may peti- 
 tion the Court of Chancery for leave to make permanent improve- 
 ments therein by drainage, and the said petition being referred, 
 and a report made thereon and filed and confirmed, and a certifi- 
 cate issued and endorsed, the inheritance shall become charged 
 with the sum advanced ; the principal to be paid off by instal- 
 ments, and the interest half-yearly, and the persons in possession 
 to keep it down. Such a charge to have priority over other 
 charges, except tithe commutation rent-charges, and quit or chief 
 rents ; and memorials of the certificates, if the lands are in a 
 register county, to be registered. 
 
 And similar powers, in order to defray the expenses of com- 
 muting manorial rights into rent-charges, are given to limited 
 owners under the Copyhold Enfranchisement Acts (&) ; and, to 
 mortgage Charity Estates for the purpose of improvement, by 
 the Charitable Trusts Acts (c). 
 
 A power to a limited owner to charge a given sum appears not 
 to authorize a mortgage in fee at Law (d) ; but if the inten- 
 tion was clear to execute the power. Equity would consider an 
 execution of it, not referring to the power, defective, and sell 
 the inheritance, if necessary, to raise the charge (e); which 
 authorizes a charge of interest besides (/), and a grant of a 
 rent-charge (g). 
 
 The partial exercise of a power to mortgage may, in Equity, 
 exhaust the power only pro tanto, though it has wholly ex- 
 hausted it at Law (Ji). But if wholly exhausted in Equity, it is 
 doubtful whether a sale can afterwards be made under it {i). 
 
 A wife's real estate, whether freehold or copyhold, is either 
 settled or not settled to her separate use ; and first, of the latter. 
 
 The wife may mortgage her freehold estate whether legal or 
 equitable and other lands (except her estates tail), by deed 
 
 (a) 8 & 9 Vict. c. 56. 
 
 (6) 4 & 5 Vict. c. 35 ; 6 & 7 Vict. c. 
 23; 15 & 16 Vict. c. 51. 
 
 (c) 16 & 17 Vict. c. 137; 18 & 19 
 Vict. c. 124. 
 
 {d) 1 Sugd. on Pow. 513. 
 
 (e) Ibid. 517. 
 (/) Coote on Mortg. 158. 
 {g) Blake v. Marnell, 2 Ball & 
 Beatty, 35. 
 
 (/i) 1 Sugd. on Pow. 354. 
 
 (0 Palk V. Lord Clinton, 5 Ves. 722.
 
 NOT PARTNERS. 
 
 397 
 
 acknowledged by her as directed by the Fines and Recoveries 
 Act (i). The husband must concur in the deed (/e). Tlie Judge 
 or Commissioner taking the acknowledgment should sign a 
 memorandum and (on a separate parchment) a certificate of such 
 acknowledgment (/), and a practising attorney should verify such 
 certificate by affidavit (m). A mortgage of her freehold estates 
 tail must be made according to the conditions hereinbefore men- 
 tioned as necessary, with regard to mortgages by ordinary tenants 
 in tail (n) : with this addition, that her husband must concur (in 
 the deed), and the deed must be acknowledged by her (o). 
 
 A conditional surrender, by way of mortgage, of her le^al copy- 
 holds is not within the Act (p), where they might have been, 
 before the Act, disposed of by her by surrender (her husband 
 concurring), into the hands of the lord. That mode, therefore, 
 still seems the one for mortgaging such interests. She may mort- 
 gage her equitable copyholds by deed according to the Act, in 
 the same way as her freeholds. 
 
 The surrender binds her, and those claiming under her, whe- 
 ther as issue or remaindermen (q). 
 
 If the Equity of Redemption be reserved to the wife alone, Reservation of 
 her right to redeem is unquestionable: and the only question in deliipdon. 
 such a case will be, whether she intended a gift or a loan of the 
 mortgage money to the husband. If the latter, then she will be 
 considered in the nature of a surety, and entitled as such to 
 exoneration out of his estate (r), to a greater exent than an heir 
 is (s). If her estate be considered only as a surety for his debt, 
 her Creditors may, on the refusal of her representatives to do so, 
 file a bill, upon her death, to have that estate exonerated out of 
 the husband's {t). 
 
 If the Equity of Redemption be reserved to the husband and 
 wife, the question whether she is entitled to redeem, and conse- 
 quently to be exonerated by him, depends on the same test (m). 
 
 The mere reservation of the Equity of Redemption to the 
 husband will not alter the wife's previous right, unless it clearly 
 appears she intended it should do so (x). 
 
 The wife's chattels real, whether legal or equitable, not settled Chattels real. 
 
 (i) 3 & 4 Will. 4, c. 74, s. 77. (,7) 1 Watk. Copy. 63. 
 
 Ik) 2 Bright's H. & W. 47. (r) Bright's H. & W. 267. 
 
 (/) 3 & 4 Will. 4, c. 74, s. 84. {s) 1 Rop. II. & W. 144. 
 
 (m) Ibid, s 85. (t) Lancaster n. Evors, 10 Beav. 154. 
 
 (w) Ante, p. 335. (u) 1 Bright's H. & W. 277. 
 
 (0) 3 & 4 Will. 4, c. 74, s. 40. (x) Ruscoinbe v. Hare, 6 bow's 
 
 (/)) Ibid. 8.77. P. C. 1.
 
 398 MORTGAGES BY SEVERAL- 
 
 to her separate use, pass to the husband in a qualified way, that 
 is to say, he has an interest in them in her right, with a power of 
 ahenation during the coverture {y) ; though if he does not ahene 
 them, the wife surviving shall be entitled as against his repre- 
 sentatives {z). Consequently he may alone mortgage them as 
 his own without her concurrence {a) ; but in such a case, if he 
 pays the money at the day, the wife's interest in the term is not 
 affected (h). If the money be not paid at the day, her legal right 
 by survivorship is gone, but she will be entitled, if she survives, 
 to the Equity of Redemption, provided it were reserved to her 
 and her husband (c). It seems doubtful whether this will be so, 
 if it were reserved to him alone (cZ). 
 
 The above remarks apply not only to the wife's chattels real 
 in possession, but to her reversionary interests in them also, 
 trust or legal, and to her contingent interests in them (e). 
 
 Chattels per- With regard to the wife's personal estate in possession, not 
 
 settled toiler separate use, whether belonging to her dum sola, or 
 accruing to her, or to her and her husband, during the marriage, 
 this becomes the absolute property of the husband. Mortgages 
 and pledges of it, therefore, are subject to the same rules as 
 mortgages and pledges of his own personalty. 
 
 Paraphernalia. The husband may also mortgage his wife's paraphernalia (?. e., 
 her apparel and personal ornaments suitable to her rank), but 
 the wife surviving may have them redeemed out of his personal 
 estate even to the pi-ejudice of legatees (/). 
 
 Mortgage of With regard to her personal choses in action, Lord Hard- 
 
 wicke held that her mortgage was, in Equity, a mere chose in 
 action ; and that there was no distinction between a mortgage 
 term and any other term ; and consequently that the husband 
 might assign it to secure his own debt (g) ; and that, whether it 
 was a legal term, or the trust of a term, or a mortgage in fee (h). 
 But a mortgage by the husband of the wife's mortgage in fee or 
 for years, is not such a reduction into possession that, if he die 
 before the mortgage debt is paid, the Courts of Equity would 
 now consider the wife surviving (^) to be barred; the assignee 
 would, it seems, be a trustee for her {k). If no assignment be 
 
 (y) 1 Bright's H. & W. 94. (/) Graham v. Londonderry, 3 Atk- 
 
 (z) Ibid. 395. 
 
 (a) Ibid. 102, (^)' Bates v. Dandy, 2 Atk. 207. 
 
 (i) Radford v. Young, -t Vin. Abr. 50. (h) 1 Bright's H. & W. 78. 
 
 (c) 1 Preston, Abst. 345. (j) Ellison v. Elwin, 13 Sim. 309; 
 
 (d) Ibid. Ashby v. Ashby, 1 Coll. C. C. 553. 
 (f) Donne v. Hart, 2 R. & iM. 361. (k) 1 Bright's H. & W. 78. 
 
 wife's mort- 
 gage
 
 NOT PARTNERS. 399 
 
 made, the husband surviving takes the mortgage debt as her ad- 
 ministrator, and if the mortgage be in fee, the wife's heir is a 
 trustee of the land for him (/). 
 
 The word "estate" in sect. 77 of 3 & 4Win. 4, c. 74, includes 
 any estate at Law and in Equity, and any interest, charge, lien 
 or incumbrance affecting lands at Law or in Equity, or any 
 money subject to be invested in land (m). Consequently a feme 
 coverte mortgagee may transfer any mortgage of land vested in 
 her as mortgagee, or any mortgage debt secured on land, in the 
 same way as she mighj; originally create a mortgage {n). 
 
 As regards her other choses in action, if the husband reduce Mortgage of 
 them into possession, the wife surviving will be barred. The ^ho^ses°in ac- 
 question in all these cases is, as we have elsewhere seen, " What 'io"- 
 is a sufficient reduction into possession ?" 
 
 A transfer by the husband of money standing in her name, at the Wife's stock 
 time of the marriage, in the public funds is such a reduction (o). 
 But, generally, an assignment of stock by him or by them both by 
 way of mortgage is not, if it is reversionary; and an indefeasible 
 title cannot therefore be passed to the mortgagee as against the 
 wife surviving {p). " If the husband has by Law only a qualified 
 and conditional, and not an absolute, interest in the chose in action 
 of his wife, he could not by assignment, either for or without con- 
 sideration, convey an absolute and unqualified interest to another. 
 If he had no other interest than a right to reduce the thing into 
 possession, that same right must be what the assignor agreed to 
 sell, and the assignee to buy "(5). If, therefore, the husband 
 dies after mortgaging the chose in action, but before it falls into 
 possession (i. e., before the time arrives for reducing it into pos- 
 session), the mortgagee loses his chance. Therefore, where the Wife's fund in 
 husband and wife assign the wife's reversionary interest in a fund °"'^''' 
 in Court, the assignee, even though for value, can only obtain a 
 stop order to the effect, that during the life of the husband the 
 fund shall not be disposed of without notice to the assignee (r). 
 
 The same is Law where the chose in action is immediately 
 recoverable (but has not been recovered) : a mere assignment by 
 the husband of such a chose in action by way of security is not a 
 sufficient reduction into possession, whether the wife joined in it 
 or not (s). 
 
 (0 Ibid. 42. {q) Purdew v. Jackson, 1 Russ. 1. 
 
 (m) See sect. 1. (r) Moreau v. Polley, 1 De G. & Sm, 
 
 (n) Ante, p. 396. 143. 
 
 (0) Pringle v. Hodgson, 3 Ves. 615. («) Ante, p. 258. 
 
 {p) Ilornsby v. Lee, 2 Madd. 16.
 
 400 
 
 MORTGAGES BY SEVERAL. 
 
 Mortgage of 
 
 Separate 
 
 estate. 
 
 No personal 
 decree 
 
 V. 
 
 wife. 
 
 A limitation of real estate to the wife in fee or in fee tail 
 to her sole and separate use, without expressing more, will not 
 enable her to mortgage it, during the marriage, otherwise than by 
 the modes by which she is allowed to dispose of other real 
 estate (viz., by deed acknowledged and concurred in by her hus- 
 band), because, no power being given her by the instrument to 
 make any disposition of the property, she can only do so by the 
 mode prescribed by the general law (t). But if the instrument 
 give her such a power, as, e. g., to appoint it by deed attested by 
 two witnesses, she may mortgage it by that mode {u). 
 
 An estate for life, however, settled to her separate use, or 
 rather the rents and profits of it, she may mortgage by any ordi- 
 nary deed, or even by writing without deed {x). Of her chattels 
 real settled to her separate use, she may make a mortgage 
 without the concurrence of her husband : nor can he alone 
 mortgage them (a). 
 
 Her separate personalty, whether in possession or action, she 
 may mortgage as a man may (h), unless restrained from anticipa- 
 tion. 
 
 There is no instance, in which the Court of Chancery will 
 make a personal decree against the person of a feme coverte to 
 compel her, to the payment of any sum whatever, or to execute a 
 conveyance (c). " Her general engagements operate upon her 
 personal property — shall apply to the rents and profits of her real 
 estate — and her trustees shall be obliged to apply personal 
 estate, and rents and profits, when they arise, to the satisfaction 
 of such general engagements ; but the Court has not used any 
 direct process against the separate estate of the wife ; and the 
 manner of coming at her separate property has been by decree, 
 to bind the trustees, as to personal estate in their hands, or rents 
 and profits" {d). 
 
 This is a singular and single exception from the general rule 
 of Equity, according to which, it is said, its decrees operate 
 in personam, and not in rem — in which rule the main difference 
 between the Remedies of Law and Equity may be shortly de- 
 scribed to consist. The judgment of the former is quod recu- 
 peret rem — the decree of the latter is a personal command. 
 
 After the husband's decease, the wife has been entitled, as 
 against his other creditors, to have a debt, covenanted by him to 
 
 (0 1 Bright'sH.& \V. 22i. 
 («) 1 Sugd. on Pow. 180 (7th ed.) 
 (j) Allen i'. Papworth, 1 Ves. sen. 163. 
 (rt) Tullett V. Armstrong, 4 M. & C. 
 
 39; 
 
 (6) Ante, p. 268. 
 
 (c) Jordan v. Jones, 2 Phill. 170. 
 
 {d) Hulme V. Tennant, 1 B. C. C. 21-
 
 NOT PARTNERS. 
 
 im 
 
 be paid in a mortgage by both of her separate estate, paid off 
 as a specialty out of his assets (e) ; whose other Creditors 
 have no right to stand in place of the mortgagee, to come round 
 on her estate (f). 
 
 Husband and wife join in creating two mortgages on the ^rarshallinj 
 life interest of the wife : the first, a mortgage on her freeholds and ^^Jjeg^ 
 copyholds ; the second, on her freeholds only. The husband 
 dies. The second mortgagee may require that the first shall be 
 satisfied out of the copyholds so far as they will extend (g). 
 
 wife's secu- 
 
 Section 2. 
 Mortgages hy Partners. 
 
 Unincorporated Partnerships. 
 
 Companies within Joint Stock Acts, 1856, 
 
 1857. 
 Companies within 8 4- 9 Vict. c. 18. 
 Companies within 8 4' 9 Vict. c. 16. 
 Traiisfer. 
 
 Insurance Companies. 
 Corporations Proper. 
 
 Spiritual Persons. 
 
 Municipal Corporations. 
 
 Churchwardens. 
 
 partners. 
 
 Of course one partner may mortgage his property, which is Unincorporate 
 not embarked in the partnership, to another partner. He may 
 also mortgage to him his share in the partnership debts, 
 chattels, &c., although, if they continue apparent owners of it, 
 e.g., if the mortgagor continues to act in the concern and deal 
 with the property as before, there is no sufficient possession by 
 the mortgagee to give him a specific lien, as against the general 
 Creditors of the mortgagor, upon the separate bankruptcy of the 
 latter ; and there is no difference in this respect between a mort- 
 gage to a partner and to a stranger {h). 
 
 In virtue of the community of rights and interests in the 
 partnership property, which is the essence of a partnership, each 
 partner possesses full power and authority to pledge, or otherwise 
 dispose of, the entirety of the partnership personal effects, and 
 not merely of his own share thereof, for purposes within the 
 
 (e) Hudson v. Carmichael, Kay, 613. 
 (/) Robinson v. Gee, 1 Ves. sen. 
 252. 
 
 {g) Tidd V. Lister, 3 De G. M. & G. 
 857. 
 
 {h) Ryall V. Rowles, 1 Ves, sen. 373. 
 D D
 
 402 
 
 MORTGAGES BY SEVERAL. 
 
 Quasi-corpo- 
 rate partner- 
 ships. 
 
 Lands Clauses 
 Act. 
 
 scope of the partnership (k). Such acts he is considered in Law 
 as doing as its accredited agent. But as to realty, it is other- 
 wise ; as to it, whether he executes a conveyance of it either in his 
 own name or that of the firm, it will pass ordinarily only his own 
 share of it, both at Law and in Equity (Z) ; therefore each partner 
 must join in it in order to pass the entirety. 
 
 Even a dissolution, it would seem, leaves each partner in pos- 
 session of the power (unless it be otherwise provided) to collect 
 and give receipts for debts due to the firm (m), and to pay debts 
 due from it (n) ; although the survivors (where the dissolution is 
 by death) may not mortgage the deceased's share to secure a 
 debt principally due from them, and to enable them to carry on 
 the trade (o). 
 
 Next let us consider those cases, in which a power to mortgage 
 is given expressly or by necessary implication by Parliament, 
 without which the donees would not be able to do so, on account 
 of their being corporate bodies. 
 
 As to Companies within the Joint Stock Acts, 1856, 1857, 
 they " acquiring power to hold lands," upon registration, may 
 mortgage them. 
 
 Mortgages however which, if made bv an individual trader, 
 would be fraudulent (/)), shall be fraudulent if made by the 
 Company (q). 
 
 In mortgages by the Company shall be implied — unless such 
 implication is expressly negatived — covenants by the Company 
 to pay; that they have power to mortgage free from incum- 
 brances ; and for further assurance : and, if a power of sale be 
 given, an authority shall be implied to sell by auction or private 
 contract, altogether or in parcels, and to rescind or vary con- 
 tracts for sale or resale, without being liable for any loss ; and 
 also an authority to give receipts, and the mortgages may be in 
 the form (H.) in the Schedule {?•). 
 
 As to Companies within 8 & 9 Vict. c. 18 (which comprises 
 every undertaking authorized by any Act passed after 8th IVIay, 
 1845, and authorizing the purchase or taking of lands for such 
 undertaking) (s), their promoters may purchase or redeem the 
 interest of a mortgagee of any lands required for their special 
 
 (/■:) Story on Partnership, s. 94. 
 (0 Ibid. 
 
 (m) Ibid. s. 328 ; Bell Comni. (6th 
 ed.) 229. 
 
 («) Harvey v. Crickett, -5 M. & S. 33G. 
 
 (o) Buckley v. Barber, 6 Exch. 182. 
 
 (p) See 13 Eliz. c. 5. 
 
 {q) 19 & 20 Vict. c. 47, s. 76. ■ 
 
 (r) Ibid. s. 44. 
 
 (s) Sect. 1.
 
 MORTGAGES BY PARTNERS. 403 
 
 Act, whether they have previously purchased the Equity of Re- 
 demption of such land or not, and whether the mortgagee is 
 entitled in his own right or as trustee, and whether he is in pos- 
 session or not, and whether the mortgage affect other lands or 
 not ; and may pay such mortgagee his principal and interest and 
 costs, and six months' additional interest; and he shall thereupon 
 convey to them his interest in the land (t). And the Act makes 
 various provisions in the case of the Company paying off" the 
 mortgage before the stipulated time (u), and as to the deposit by 
 the Company of the mortgage monies in the Bank, in case of 
 the mortgagee's refusal to accept them ; which deposit shall be a 
 discharge of the mortgaged lands (v). 
 
 As regards Companies within 8 & 9 Vict. c. IG, they may, if Companies 
 authorized by their special Act to borrow money on mortgage, 
 subject to the restrictions contained in the special Act, borrow 
 on mortgage such sums as shall by a general meeting of the Com- 
 pany be authorized, not exceeding the sum prescribed in the 
 special Act, and for securing the same, may mortgage the under- « 
 
 taking and the future calls on the shareholders {w), and re-borrow 
 after paying off'x). 
 
 The mortgagees shall be entitled " one with another," to their 
 respective proportions of the tolls, sums and premises comprised 
 in such mortgages, and of the future calls, if comprised therein, 
 without any preference by reason of their priorities of date, or 
 of the meeting which authorized them (y). 
 
 But the Company may, unless it is otherwise expressly provided, 
 apply the calls, notwithstanding any mortgage of them, to the 
 purposes of the Company (z). The mortgages must be entered 
 in a register kept by the Secretary of the Company (a). 
 
 A mortgage by the Company of its undertaking, and of the 
 rates, tolls and other sums arising under the Act, will (unlike the 
 mortgage of turnpike tolls) not support an ejectment by the mort- 
 gagee, for no land or building is conveyed by the mortgage (^). 
 
 Mortgagees of the Company may transfer their right and Transfer, 
 interest by deed duly stamped according to the form in the 
 Schedule to the Act. Within thirty days after the execution, or 
 
 (l) Ibid. s. lOS. (y) Ibid. S.42. 
 
 («) Ibid. s. 114. (z) Ibid. s. 43. 
 
 (v) Ibid. s. 113. {a) Ibid. s. 45. 
 
 {w) Sect. 38, and seeScbed. (C.) for (b) Cole on Ejectment, 91 ; 2 Q. B. 
 
 form. 3GL 
 
 (x) Ibid. s. 39. 
 
 D D 2
 
 404. 
 
 MORTGAGES BY SEVERAL. 
 
 Insurance 
 Companies. 
 
 arrival within the United Kingdom, of any transfer, it shall be 
 produced to the Secretary and entered, and after such entry the 
 transferee shall be entitled to the full benefit of the transfer (c). 
 
 The mortgagees may require the appointment of a Receiver of 
 the tolls or sums liable to the principal money and interest, by 
 application before two justices, where the special Act authorizes 
 the Company to enforce payment by a Receiver (d). 
 
 Where no time is fixed for repayment, the mortgagee may, 
 after twelve months from the date of the mortgage, dem.and 
 payment, giving six months' written notice to the Secretary : 
 and in the like case the Company may at any time, giving the 
 like notice personally to the mortgagee, or leaving it at his 
 residence, or advertising in the papers if he is unknown or 
 cannot be found, pay off the mortgage (e). 
 
 Insurance Companies may, on complete registration, purchase 
 and hold land for the purpose of occupying the same as a place 
 of business, and (if with a licence by the Board of Trade) for 
 ♦ other purposes (/). But they must not lend the Company's 
 
 money to any of their number, without the authority of a general 
 meeting of shareholders (g). 
 
 The Deed of Settlement shall make provision for determining 
 whether the Company may borrow money ; and if so, whether 
 on bond or mortgage, or any other and what security, if for 
 such a purpose as the nature and business of the Company re- 
 quires {h). 
 Burial Boards. So the Metropolitan Burial Boards may purchase and hold 
 lands without licence in Mortmain (i) ; and, with the sanction of 
 the Vestry and the Treasury, charge poor rates with sums bor- 
 rowed for the purposes of the Act. 
 
 Canal Companies may borrow money on mortgage, as nearly 
 as may be, in the manner in M^hich Railway Companies may (A). 
 
 Mortgagees of the rates, tolls and duties of a Canal Company 
 may, although the Act of Incorporation give them the remedy of 
 obtaining a Receiver of the rates and tolls from two justices of 
 the peace, apply to and obtain one from the Court of Chancery, 
 their interest being a long time in arrear (1) ; and that, at the 
 application of one only of several mortgagees (ni). 
 
 Canals. 
 
 (c) 8 & 9 Vict. c. 16, ss. 46, 47. 
 
 (fO Ibid. ss. 53, 54. 
 
 (e) Ibid. s. 51. 
 
 (/) 7 & 8 Vict. c. 110, s. 25. 
 
 g) Ibid. s. 27. 
 
 h) Ibid. cf. s. 7, & Sched. A. (4). 
 
 {>) 15 & 16 Vict. c. 85, ss. 20, 28. 
 
 (/f) 8 & 9 Vict. c. 16; 10 & 11 Vict. 
 c. 94, s. 2. 
 
 (0 Fripp V. Chard Railway Co., 11 
 Hare, 241. 
 
 (m) Ibid.
 
 MORTGAGES BY PARTNERS. 
 
 405 
 
 The bill may also pray, in such a case, an account of what is 
 due to the plaintiff and his co-mortgagees, and payment by a 
 short day, and in default a sale of the undertaking, and an 
 injunction against the Company from managing. The fact of 
 the plaintiff being a legal mortgagee is no objection (n), because 
 this is not a title of land, but of a kind of trade, and therefore an 
 account maybe taken of the profits (o). 
 
 So under the Public Health Acts, the Local Board or Im- Health Boards, 
 provement Commissioners may mortgage the charges and rates 
 made under the Acts to repay the expenses of the Acts, provided 
 the loan in general does not exceed one year's assessable value 
 of the property in the district, is not for more than thirty years, 
 and is for permanent works and with the sanction of the Secre- 
 tary of State (p). 
 
 Transfers of mortgages by public Companies are exempt from 
 stamp duty, on the original mortgage being stamped with three 
 times the ad valorem duty (q). 
 
 The Crown may, at its own pleasure, and, a fortiori, an Act of Corporations 
 Parliament may, empower Corporations to hold lands. As to the 
 power of such Corporations to aliene lands, and every mortgage 
 is pro tanto an alienation, that is more or less limited according 
 to the nature of the particular Corporation. 
 
 Thus ecclesiastical persons, as spiritual parsons or vicars, Spiritual per- 
 holding benefices with cure of souls, are, as we have seen {r\ ^°°®' 
 wholly incapable of mortgaging or charging their benefices, 
 except to purchase glebe lands (s). They may also mortgage 
 the profits of their benefices to the governors of Queen Anne's 
 bounty, for the purpose of raising money to repair or rebuild 
 their residences, or provide new ones {t). The prohibition to 
 mortgage or charge their benefices extends to an agreement to 
 charge (m), and also to an instrument framed as a lease, under the 
 enabling statute 32 Hen. 8, c. 28, if substantially a charge (y). 
 
 And mortgages by any other Ecclesiastical or by Eleemosynary 
 bodies, are void under the Elizabethan Acts {x), which authorize 
 only leases for twenty-one years or three lives, reserving the ac- 
 customable yearly rents. 
 
 (n) Ante, p. 358. 3, c. 66 ; 1 & 2 Vict. c. 23, s. 4. 
 
 (o) Story r. Lord Windsor, 2 Atk. 630. («) Alchin «. Hopkins, 1 Bing. N. C. 
 
 {p) 21 & 22 Vict. c. 98, s. 57. 99. 
 
 (?) 16 & 17 Vict. c. 59, s, 14. («) Shaw v. Pritchard, 10 B. & C. 241. 
 
 (r) Ante, p. 330. {x) 1 Eliz. c. 19; 13 Eliz. c. 10; 14 
 
 {s) 55 Geo. 3, c. 147, s. 7. Eliz. c. 11 ; 18 Eliz. cc. 6, 11 ; 39 Eliz. 
 
 (0 17 Geo. 3, C.53, s. 12; 21 Geo. c. 5. 
 
 D d3
 
 406 
 
 MORTGAGES BY SEVERAL. 
 
 Municipal 
 Corporations. 
 
 Church- 
 wardens. 
 
 A bishop may, upon the avoidance of any benefice, issue a 
 commission to inquire if there is a fit house of residence upon 
 it, and upon a return that there is not, may mortgage for thirty- 
 five years, or till the mortgage is paid off, the glebe, tithes, rents, 
 and other profits {y). 
 
 Municipal Corporations may not mortgage their lands, except 
 in pursuance of some agreement entered into before June 5, 
 1835 {z), or except by leave of, and on such terms as are thought 
 fit by, the Lords of the Treasury (a), or except to build or repair 
 prisons or Court houses (6). The Treasury may require the 
 money borrowed to be repaid by instalments or by a sinking 
 fund, or both, within a limited time (c) ; and may empower them 
 to acquire lands, though they have no licence in mortmain, and 
 to charge the purchase money on such lands {d). 
 
 Before the Church Building Acts of the present century, there 
 was no power in the vestry of a parish to boiTOw money on the 
 security of the Church rates (e) ; but now the churchwardens — 
 who are a corporation quoad the goods of the Church {f) — may, 
 with the consent of the bishop, incumbent and vestry, mortgage 
 those rates for the enlarging or otherwise extending of the 
 accommodation {g) of existing, and also for the building of new, 
 churches {h), and the rebuilding of old ones (i), and for the pur- 
 pose of repair {k) ; and churchwardens may raise money for the 
 above purposes by granting annuities on the security of the 
 Church rates (Z), but it is doubtful whether they or overseers, 
 being bodies without a common seal, can mortgage land(m). 
 
 As to lay Corporations aggregate, (subject to the restraint thus 
 imposed, as we have seen, on Municipal ones,) they may mort- 
 gage freely their lands of inheritance {n). 
 
 As to chattels personal in possession or in action, Corporations 
 aggregate are not under any disability to mortgage them, any 
 more than a private individual. A sole Corporation has no cor- 
 porate personalty to mortgage (o). 
 
 (y) 1 & 2 Vict c. 106, s. 62. 
 («) 5 & 6 Will. 4, c. 76, s. 94. 
 (a) Ibid. ; 6 & 7 Will. 4, c. 104, s. 2, 
 (6) 11 & 12 Vict. c. 39, s. 1. 
 (c) 23 & 24 Vict c. 16, s. 1. 
 \d) Ibid. s. 8, 
 
 (e) Prideaux oa Churchwardens (6th 
 ed.) 143. 
 (/) Ibid. 50. 
 {g) 58 Geo. 3, c. 45, s. 59 j 3 Geo. 4, 
 
 c. 72, s. 5. 
 
 {h) Ibid. ss. 14, 60, 61. 
 
 (0 59 Geo. 3, c. 134, s. 40. 
 
 (A) Ibid. s. 14. 
 
 (0 3Geo.4, c. 72, s. 6. 
 
 {m) Grant on Corp. 614. 
 
 (n) Mayor, &c. of Colchester v. Low- 
 ten, 1 V. & B. 226. 
 
 (o) Ante, p. 127.
 
 ( 407 ) 
 
 CHAPTER II. 
 
 MORTGAGES TO SEVERAL. 
 
 Section 1. 
 Partners and not Partners. 
 
 Mortgages to Husband and Wife. 
 
 Mortgages to Trustees. 
 
 Mortgages to Benefit Building Societies. 
 
 Mortgages to Executors, 
 Executors of Mortgagee. 
 Mortgages to Corporations. 
 
 If the mortgage be of land to the husband and wife and Husband and 
 
 their heirs, as they cannot take as joint tenants, each has the ^' ^' 
 
 entirety, and the husband alone cannot aliene it (except the 
 
 rents during the coverture), for the whole belongs to his wife as 
 
 well as to himself (a). On the other hand, being together but 
 
 one person, they cannot, during the coverture, take separate estates 
 
 in it (b). 
 
 Tlie money advanced being always the husband's — unless it 
 be part of the wife's separate estate — the consideration for the 
 mortgage security will move from him, and the debt be due to 
 him, so that no question can arise, as to the mortgage deht, as 
 to the wife's rights as against him. 
 
 The only peculiarity in a mortgage to trustees to secure trust Trustees, 
 monies is that, where made to several, a declaration is inserted, 
 that the money belongs to them on a joint account, and that the 
 receipt of the survivor shall be a discharge. Otherwise, since 
 the money would in Equity be presumed to belong to the 
 trustees in equal shares, and the share of a deceased trustee 
 would not survive, the receipt of the personal representatives of 
 a deceased trustee for the mortgage money would be necessary, 
 on the payment off of the money, and transfer or reconveyance 
 of the security (<i). 
 
 The trust ought not, unless the mortgage is by the order of 
 the Court of Chancery, to appear on the lace of the deed ; any 
 
 (rt) Green v. King, VV. Blackst. 1211. (c) 5 Jarni. 499, 573 ; ante, p. 228. 
 
 (6) 2 Cruise, 373.
 
 408 MORTGAGES TO SEVERAL. 
 
 declaration of trust which the trustees shall think fit to execute 
 in favour of the parties beneficially interested, should be con- 
 tained in a separate instrument (e). 
 
 An authorized loan of trust monies on mortgage entitles the 
 cestui que trust of the money to follow it into the mortgaged 
 land(/). 
 
 It is laid down by a well-known text writer, that a trustee 
 cannot be advised to lend upon a second mortgage of land, not 
 only because he will not have the legal estate, nor the possession 
 of the title deeds, but also because he may be placed in serious 
 difficulties by the acts of the first mortgagee. As for example : 
 if he, the first mortgagee, file a bill of foreclosure, the trustees 
 wull forfeit their interest unless they redeem, which they may 
 have no means of doing ; and if the first mortgage contain a 
 power of sale, the mortgagee may sell the property at a great 
 disadvantage, and the trustees cannot prevent it, unless by 
 redeeming, which they may not be able to do {g). 
 
 The present Master of the Rolls, though the inclination of his 
 opinion seems to be in accordance with the Law, as stated by 
 Mr. Lewin, " does not know that the point," viz., the propriety 
 of lending on such a mortgage, " has ever been determined" (/«) ; 
 and in an Irish case. Lord Chancellor Blackburne has guarded 
 himself from laying down any rule on the subject (z). 
 
 On the same principle (k) it would seem, they ought not to lend 
 on an equitable mortgage by deposit, whether that is taken as a 
 primary or collateral security. 
 
 There seems no objection, however, to their lending on a 
 mortgage of a reversion ; but they ought to take a full power of 
 sale, and advance no more than a proper proportion, according 
 to the present value of the reversion (/). 
 
 If they lend on house property they should advance not more 
 than one-half the value of such property {m) ; if on freehold land, 
 not more than two-thirds (ri) ; and lending on a second mortgage 
 of house property is a breach of trust (o). 
 
 Trustees must not lend on mortgage to one of themselves ; 
 and if any loss arise, they are liable (p). 
 
 (e) Ibid. 573 n. (a). {k) 14 Beav. 308. 
 
 (/) Lench v. Lench, 10 Ves. 51 G. (/) Lewin on Trusts, 350. 
 
 (g) Lewin on Trusts, 350 (3rd ed.) ; (»/) Stretton v. Ashmall, 3 Drew. 12. 
 
 16 Jur. 256. («) Stickney v. Sewell, 1 M. & C. 8. 
 
 (//) Norris v. Wright, 14 Beav. 308. (o) Drosicr v. Brereton, 15 Beav. 
 
 (t) Waving v. Waring, 3 Ir. Ch. 22L 
 
 Rep. 337. (/)) 4 M. & Cr. 8.
 
 PARTNERS AND NOT PARTNERS. 4^" 
 
 Notice by the mortgagor to one of several trustees to pay off 
 is notice to all ifj). 
 
 Notice hy one of several trustees to the mortgagor, calling in 
 the mortgage money, is the notice of all (r). 
 
 At Law, where trustees join in a receipt, all are considered to Trustees' 
 have received the money. But ni Chancery the Court will 
 inquire into the fact, whether all did receive it. The onus, 
 however, lies on the trustee, who has signed but not received, 
 to show that that was the case. 
 
 Any number of persons may form themselves into a Society, Mortgages to 
 
 •' „ . 1 111 14-^ Benefit Build- 
 
 for the purpose of raismg a stock, to enable each member to j^^ societies. 
 receive therefrom the value of his shares therein to build or pur- 
 chase dwelling-houses, or other real or leasehold estate, he 
 mortgaging the same (house) to the Society till the amount of 
 his shares, with interest, shall be repaid (s). The Society's 
 rules may prescribe the form of mortgage {t). 
 
 Trustees of mortgages to the Society by members may 
 indorse receipts for the mortgage money, which receipts shall 
 vacate the security, and vest the estate in the person entitled to 
 the Equity of Redemption, without any reconveyance by the 
 trustees {u) : a simple expedient, worthy of being followed by 
 the conveyancing Law of this country generally. 
 
 These Associations may bring themselves— though, not being 
 formed for purposes of gain, they are not obliged to bring them- 
 selves—within the J. S. Acts, 1856, 1857; but if they do not, 
 are within the W. U. Acts, 1848, 1849 {x\ 
 
 It has been laid down, that, whether a will authorize executors Executors 
 to lay out the assets on real securities or not, they are justified "^^'-'g^g'^es. 
 in so laying them out; and if there be no reason to suspect 
 the sufficiency or validity of such security, that they will not 
 be personally answerable to the persons beneficially entitled 
 under the will for any loss, should the security subsequently 
 
 prove bad (?/). 
 
 After a decree to account, however, an executor must not lay 
 out money on mortgage without the leave of the Court. If he 
 does so, the Court will consider the fund money, and make the 
 executor bring it into Court {z). 
 
 (n) Lewin, 609. ( ^"^ K"""^" '•■ L'^'«"' ^ P-'^^'"^^" l^^' 
 
 (r) Ante, p. 232. (.'/) Widdowsoii v. Duck, 2 Mcr. 491.. 
 
 (s) 6 & 7 Will. 4, c. 32, s. 1. («) Re St. George's Building Society, 
 
 (0 Ibid. s. 3. 4Drevvry, 154. 
 {u) Ibid. s. 5.
 
 410 
 
 MORTGAGES TO SEVERAL. 
 
 Executors of 
 mortgagee. 
 
 Corporations. 
 
 If the assets were already so invested by the testator, it is not 
 their duty to realize the securities, and call in the mortgage 
 debt, where no risk is apparent {z) ; whether the will did or did 
 not authorize them to invest on real securities, or continue in 
 such investments assets already so invested. 
 
 The Governors of Queen Anne's Bounty are empowered to 
 lend money on the security of benefices, for the purpose of 
 enabling the incumbents to raise money to repair and rebuild 
 their residences, or provide new ones (a). 
 
 With regard to mortgages to other public bodies and Compa- 
 nies, we may, for practical purposes, drop the distinction we have 
 hitherto taken between Corporations proper and quasi-cov]poYa.- 
 tions ; for, since the fact of incorporation disables Corporations 
 to hold lands, though not to purchase them {b), unless the disa- 
 bility be removed by the Act or Charter of Incorporation, (for 
 it would be an alienation in mortmain which is prohibited by 
 Law,) even quasi-corpoYSLtions incur this disability, and require 
 the enabling Act of Parliament or the Prerogative to remove it. 
 This, as we have seen, is generally granted in the provision ac- 
 companying their incorporation, which expressly enables them 
 " to hold lands," which will of course enable them to hold them 
 as mortgagees ; and though they cannot be seised of them to an 
 use(c), not being within the Statute of Uses, another may be seised 
 thereof to their use {d), and the use be thus executed in them. 
 But although they cannot by the Common Law be seised to the 
 use of another, and a conveyance therefore to them to the use of B., 
 would vest the legal estate in them ; yet, through the medium of 
 trusts, they may be constituted trustees of the land, either for 
 their own members or for third persons (e) ; and accordingly we 
 find them often Charitable Trustees. 
 
 With regard to chattels real, whether the disability imposed 
 on Corporations to take land under the Statutes of Mortmain 
 extends to them, seems to depend on the nature, but more on the 
 duration, of the lease (/). Thus anj/ husbandry lease, if within 
 the scope and object of the Corporation for whom it is granted, 
 seems good(^) ; and so of one, not a husbandry lease, for ninety- 
 nine years (A), but not (perhaps) one for one hundred (e), or for 
 
 (z) Howe V. Earl Dartmouth, 7 Ves. 
 150. 
 
 (a) Ante, p. 405. 
 
 (b) 1 Blackst. (Steph.)453. 
 
 (c) 1 Cruise Dig. 310, 350. 
 
 (d) Ibid 354. 
 
 (e) Ibid. 403. 
 
 (/) Grant on Corporations, 127. 
 (g) Jesus College v. Gibbs, 1 Y. & 
 Coll. U6. 
 
 (h) 15 Vin. Abr. 485. 
 (i) Ibid.
 
 PARTNERS AND NOT PARTNERS. 
 
 411 
 
 eiahty-one years (I) ! And a mortgage to them would therefore 
 be'' croverned, it is apprehended, by the same distmction. 
 
 The Chm-ch Building (now (m) the Ecclesiastical) Commis- 
 sioners may lend money on the security of Church rates, to 
 build, rebuild, or enlarge churches (w). 
 
 Section 2. 
 Parties to 3Iortgage Suits. 
 
 I. Persons interested in the Security and 1 2. Persons interested in the Equity of Re- 
 Debt. demption. 
 
 In Equity. Bankrupt or Insolvent Mortgagor. 
 
 Bankrupt and Insolvent Mort- 
 
 Puisne Mortgagees. 
 
 gagee. 
 Cestui que trust. | Judgment Creditors. 
 
 Assignee. 
 Sub- Mortgagee. 
 Second Mortgagee. 
 Executor. 
 Heir. 
 Devisees. 
 
 Several Mortgagees. 
 Trustees and Executors. 
 
 At Law. 
 
 Assignees. 
 
 Legatees. 
 
 Executors. 
 
 Devisee. 
 
 Heir. 
 
 The late Equity Jurisdiction Improvement Act(o), which has done 
 much to simplify that chapter of Law, which relates to parties to 
 suits in Equity generally, has not conferred upon the public a 
 corresponding benefit in the matter of mortgage suits. It leaves 
 the old Law pretty much where it found it, and necessitates a 
 knowledge of the former practice of the Court. It does not dis- 
 pense with any of the parties necessary under the former prac- 
 tice in any case where either foreclosure or redemption are 
 sou'crht for(p). In such suits then, where the Court does not 
 order,orthe parties do not ask for, a sale, the inquiry still remains, 
 who are necessary parties; and those necessary parties must be 
 joined either as plaintiffs or defendants. 
 
 (0IIe.„.ing.Brabaso.,O.Briagn. ^^^^l^^^:^,^,^,, ,,, 
 
 llep. 7. \/ / 
 
 (,«) 19 & 20 Vict. c. 55. 198- 
 (7j) 7 Geo. 4, c. 72, s. 5.
 
 412 
 
 MORTGAGES TO SEVERAL. 
 
 Persons in- 
 terested in 
 security and 
 debt. 
 
 Bankrupt 
 mortgagee. 
 
 Cestui que 
 trust. 
 
 Assiffnee. 
 
 Sub-mort- 
 gagee. 
 
 Second mort- 
 gagee. 
 
 Executor. 
 Heir. 
 
 The Law on this subject has been well classified by Mr. 
 Fisher, as it regards the persons interested in the security and 
 debt, and those interested in the Equity of Redemption : and I 
 cannot do better than follow his arrangement. 
 
 1. And here of those interested in the security and debt. 
 
 If a sole mortgagee is bankrupt or insolvent, his Bankruptcy 
 or Insolvency assignees are necessary parties (p), and he himself 
 is not (g). 
 
 One of several cestuis que trust of mortgage money may sue to 
 foreclose, and he need not make the others parties, but he must 
 make the trustees parties (r), whether the mortgage be of real or 
 personal estate, whether it is vested in them by settlement or 
 otherwise {s). 
 
 If the mortgagee has assigned the security and debt, the 
 assignee is the proper, and only necessary, person to be made a 
 party {t), where the mortgagor did not authorize the assignment. 
 But if it be a sub-mortgage, the mortgagee is a necessary party 
 to a suit by the sub-mortgagee to foreclose {u). 
 
 If the assignment, the mortgage being of land, be with seve- 
 ral limitations, and remainders over, the persons down to, and 
 inclusive of, the first tenant in tail, must be made parties {x). 
 
 If a second mortgagee seek only, as he may, to foreclose a 
 third, without offering to redeem the first, the latter need not be 
 a party to the foreclosure suit(?/). 
 
 But if he seek to redeem a prior mortgagee, he must make the 
 mortgagor a party {z). Prior mortgagees and incumbrancers — 
 i.e., prior not only in date but of preference — should not be 
 made parties to a suit for sale by subsequent mortgagees ; be- 
 cause such sale is decreed, subject to their incumbrances (a). If 
 the incumbrances were subsequent to the plaintiff's, it will not be 
 improper to make them parties, though it is not necessary to do 
 so ih). 
 
 The executor of a mortgagee may bring a foreclosure suit (c). 
 
 If the sole mortgagee be dead, intestate as to realty, and the 
 mortgage, being a legal mortgage, be of freehold or copyhold 
 
 (/)) Ante, pp. 217, 218, what assig- 
 nees. 
 
 {q) 1 Dan. Ch. Pr. (Headl.) 62; 12 
 & 13 Vict. c. 106, ss. 141, 142. 
 
 (r) Fisher on Mortg. 216. 
 
 (i) 15 & 16 Vict. c. 86, S.42, r. 9. 
 
 (/) Chambers v. Goldwin, 9 Ves. 269. 
 
 (a) Hobart v. Abbot, 2 P. Wms. 643. 
 
 {x) Yates v. Humbly, 2 Atk. 237. 
 {y) Richards v. Cooper, 5 Beav. 304. 
 {z) Fell V. Brown, 2 B. C. C. 276. 
 (a) Delabere v. Norwood, 3 Sw. 
 144, n. 
 {b) Ibid. 
 (e) Scott V. Nicoll, 3 Iluss. 476.
 
 41"? 
 
 PARTIES TO MORTGAGE SUITS. 
 
 land, his heir or customary heir must be made a party, as he is 
 a trustee of the legal estate for the executor {d). Secus, if he 
 were the heir only of an equitable mortgagee (e). 
 
 If the mortgage debt has devolved on an executor, he must 
 be a party (/), but the persons beneficially interested in the 
 mortgage money need nut{g), where the suit is to foreclose 
 
 chattels real. 
 
 The devisees in trust of the mortgage security are necessary Devi^sees in 
 parties, and will represent the cestuis que trust without the 
 necessity of making them parties (A). But the executors must 
 be made parties also, for the legal ownership of the debt de- 
 volves on them {i). 
 
 The heir at law, or customary heir, of the mortgagee is not a 
 necessarij party to a suit to foreclose by the devisee, if the legal 
 interest has been devised by the mortgagee {k) ; but if the de- 
 visee claims to have the will established against him, he may 
 make him a party (Z). 
 
 In the case of several mortgagees, the following rules pre- ^^^'^^^^^^^^ 
 vail during the lives of all : — 
 
 If a mortgage of land be made to the wife, whether before or 
 during the coverture, in fee or for a term, the mortgage being a 
 chose^i7i action of the wife(7w), the husband and wife should be 
 made parties to a suit to foreclose (n). 
 
 Where the mortgage is made to several, not being cestuis que 
 trust or tenants in common, they should be all joined, Equity 
 holding them tenants in common of the money (o). 
 
 So, Tf they are partners, on a separate bankruptcy of a partner, 
 and so on his separate insolvency, his bankruptcy or insolvency 
 assignees and the solvent partner must be joined as parties (p). 
 
 If they are trustees or executors, all who have accepted the trust, 
 or have proved {q) as executors, should be made parties. Al- 
 though perhaps at Law all the co-executors may join as co- 
 plaintiffs whether they have proved or not (7-), they cannot sue 
 
 , , jj^j^ (1) 7Consol. Ch, Ord. Rule 1. 
 
 (e) Whitla V. Ilalliday, 4 Dr. & ("0 Ante, p. 398. 
 
 Varr 267 (") ^'"^""^ °" TnvUes, 412. 
 
 (/) Scott V. Nicoll, 3 Iluss. 476. (o) Vickers v. Cowell, 1 Beav. 529. 
 
 (.) Wilton V. Jones, 2 Y. & C. C. C. (p) Ibid. 
 
 ^^' (q) Ante, "Parties to asset Suits," 
 
 (70 15 & 16 Vict. c. 86, s. 42, r. 9. p. 290 ; Humphreys v. Ingledon, 1 P. 
 
 (0 Fisher on Mortg. 211. Wms. 752. 
 
 (k) Ibid. ('■) Brookes t;. Stroud, 1 Salk. 3.
 
 414 
 
 MORTGAGES TO SEVERAL. 
 
 in Equity unless they have proved (s). But at Law and in Equity 
 those who have not proved need not be made parties (t). 
 
 After the death of some, the personal representatives of the 
 deceased must be made parties ; for in Equity the mortgagees 
 were tenants in common of the money (u). 
 
 The same rules as to parties will apply in the case of several 
 mortgagees partners, whether unincorporate, ywasi-corporate, or 
 corporations proper, as in the case of other debts due to such 
 Creditors. 
 
 At Law. Xhe same rules prevail as to joinder of parties, at Law, where 
 
 the mortgage is to several, as have been before considered with 
 regard to joint Specialty and Simple Contract Creditors generally. 
 As to the recovery by ejectment, the action must be brought 
 in the name or names of those legally entitled to the actual pos- 
 session of the property. If the legal estate be vested in trus- 
 tees, but the action is brought by the cestui que trust, he 
 should first obtain their consent to their names being used as 
 claimants ; if they unreasonably refuse, he should offer to indem- 
 nify them against the costs, and afterwards without their consent 
 use their names, together with his own, as claimants (x). 
 (2.) 2. Of those interested in the Equity of Redemption. 
 
 rested in the The mortgagor is of course a necessary party, if he be not in- 
 
 Equity of solvent or bankrupt ; if he is, then his assignees (y) should be 
 
 (i.) made parties, and it would be improper to join him, unless he 
 
 In vita. is charged with fraud (z). But if they disclaimed any interest, 
 
 they should not be brought before the Court (a). 
 
 If before the insolvency (or bankruptcy) he had conveyed away 
 all the interest remaining in himself, his assignees need not be 
 parties ijb). 
 
 Puisne mort- All mortgagees -puisne to, and whether they had or had not 
 
 notice of, the plaintiff's, should be made parties ; and that whe- 
 ther his mortgage be legal or equitable (c), whether it be of 
 
 Judgment land or personalty, e.g., stock (c?). So should all Judgment 
 
 Creditors, subsequent to the first mortgage, be made parties, for 
 they have a charge on the Equity of Redemption (e). 
 
 (.5) 1 P. Wms. 752. (a) Fisher on Mortg. 191. 
 
 (0 Davies v. VV^illiams, 1 Sim, 8. {b) Steele v. Maunder, 1 Coll. C. C. 
 
 (m) Vickers t). Cowell, 1 Beav. 529. 535. 
 
 (j) Cole on Ejectment, 75. (c) Fisher on Mortg. 194. 
 
 {y) W^hat assignees, ante, pp. 213, {d) Wayne v. Hanham, 9 Hare, 62. 
 
 217. (c) Adams v. Paynter, 1 Coll. 530. 
 (?) Calvert on Parties, 267. 
 
 gagees. 
 
 Creditors.
 
 PARTIES TO MORTGAGE SUITS. 
 
 The assignees, by conveyance, of the mortgagoi, down to (if Assignees. 
 the mortgage be of land) and inclusive of, the person represent- 
 ing the first vested estate of inheritance, or if there be no 
 such person, down to the first tenant for life, are necessary 
 parties (/). 
 
 On a legal mortgage of shares in a Mining Company, the 
 mortgagor may redeem them, although the mortgagee alleges 
 he has since assigned his interest in them. But the assignee 
 should be a party. 
 
 If the mortgagor be a trustee, he is a necessary party, but 
 the cestuis qve trust are not {g). 
 
 Legatees of the mortgagor, whose legacies he has charged on ('i) 
 
 '=' & to ' . j\ Postmortem. 
 
 mortgaged estate, are necessary parties (Ji). 
 
 So, if he have made the mortgage as executor or administrator, Legatee, 
 the next of kin or persons beneficially interested under the will 
 are not necessary parties (i). 
 
 The personal representative of the mortgagor is not a neces- Executor, 
 sary party, generally, where the mortgage is in fee ( /i), or for a 
 term carved out of the fee (l). But if the mortgage were a 
 chattel interest, he would be (m). 
 
 The devisee, whether in trust or not, of the mortgagor, is a Devisee, 
 necessary party. And so of the heir, for so much as he takes Heir, 
 by descent (w), but he is not a necessary party to a suit by the 
 devisee to redeem, though he may be made a party if the 
 latter also seeks to establish the will (o). 
 
 The result of the late Act 15 & 16 Vict. c. 86, seems to be 
 that, wherever trustees, whether by will, settlement, or otherwise, 
 have a complete power over the whole estate so devised or 
 settled, the cestuis que trust of the Equity of Redemption will be 
 represented by them, and not necessary parties. 
 
 But it seems there is a distinction between devisees in 
 trust [p) and trustees of a settlement {(]) ; in the latter case, they 
 are often in possession of the settled funds. As to the former, 
 where they are also executors, and are therefore the persons 
 in whom any funds, applicable to the payment of the testator's 
 
 (/) Fisher on Mortg. 192. (m) Wilton v. Jones, 2 Y. & C. C. C. 
 
 {g) 15 & 16 Vict. c. 86, s. 42. 214. 
 
 (/i) Batchelor v. Middieton, 6 Hare, {n) Farmer v. Curtis, 2 Sim. 467. 
 
 78. (o) Lewis V. Nangle, 2 Ves. sen. 430. 
 
 (i) Wilton V. Jones, 2 Y. & C. C. C. (;j) Ilanmani;. Riley, 9 Hare, App. xl. 
 
 244. ((/) Goldsmid v. Stoiieliewcr, 9 Hare 
 
 (A-) Fislier on Mortg. 201. -App. xxxix. 
 
 (/) Ibid. p. 202. 
 
 415
 
 416 MORTGAGES TO SEVERAL. 
 
 debts, and the administration of the estate, are vested, their 
 cestuis que trust need not be made parties (r). 
 
 But when they are not executors, the cestuis que trust are still 
 necessary parties (s), and the old rule continues {t). 
 
 The same rule as to parties will apply to mortgage suits by 
 executors and trustees' mortgagors, as in common assets suits, 
 and to un-incorporate partnerships, (^wasi-incorporate partner- 
 ships, and Corporations proper, as in ordinary actions and suits 
 by and against them (m). 
 
 (r) Hanmanw.Riley, 9 Hare, App. xl. {t) Coles «;. Forrest, 10 Beav. 557. 
 
 («) Cropper v. Mellersh, 1 Jur. N. S. (m) Ante, pp. 236, 245. 
 
 299.
 
 ( 417 ) 
 
 Part II. 
 annuities — rent-charges — crown debts. 
 
 Book I. 
 
 ANNUITIES — RENT-CHARGES. 
 
 CHAPTER I. 
 
 ANNUITIES. 
 
 Personal Annuilies, what. 
 
 Of Inheritance. 
 
 53 Geo.3,c. 141. 
 
 Bequest of. 
 
 Special Occupancy of. 
 Irredeemable Annuities. 
 
 Remedies of Grantee. 
 
 Section 1. 
 Personal Annuities. 
 
 At Law. 
 In Equity, 
 Non-judicial. 
 
 Remedies of Grantor. 
 Redeemable Annuities. 
 
 Remedies of Grantee. 
 
 Remedies of Grantor. 
 
 Stock. 
 
 Every Rent-charge is an Annuity, but every Annuity is not a Personal an- 
 Rent-charge. I propose to consider first those annuities which ""^^i^^- 
 are not. 
 
 Those annuities which are not rent-charges (i. e., which are 
 not charged by the grantor upon, and payable out of, land) are 
 called personal annuities. They are so called, because they 
 are " personal " quoad the remedy of the grantee for their re- 
 covery ; and, as Fitzherbert expresses it, proceed from the 
 " coffers " of another (a). The remedy can be had only against 
 the person of the grantor, if living, or against his legal per- 
 sonal representatives, if dead, whether they were named in 
 the grant or not. However, if the heir of the grantor was 
 named in the grant, he is liable to the grantee ; but only to 
 the extent of land descended on him from the grantor, and it is 
 still a charge only on the person of the heir (&), so that if annuities 
 
 (<j) De natur^ Brevium, p. 152 (9th ed.) 
 
 (6) 2 Jarm. Byth. (Sweet), 16. 
 £ E
 
 418 ANNUITIES. 
 
 of inheritance were more common, they would in general be pro- 
 bably of a short duration (c), except where the grant is by a 
 Corporation, or body politic : a grant by these will bind their 
 successors though not named (d). 
 
 A personal annuity then is the yearly payment of a sum of 
 money, and may be granted to one in fee simple, in tail, for the 
 grantee's own or another's life, or for years. If granted in fee 
 simple, or in tail, it is an incorporeal hereditament, and must, 
 if granted by Act inter vivos, be granted by deed (e), but may be 
 so granted either with or without a valuable consideration. 
 
 53 Geo. 3, c. Under the old Annuity Act (/) personal annuities, with certain 
 
 ^*^- exceptions, required enrolment. 
 
 But that Act is now repealed (g), save as to rights, remedies, 
 or habilities in respect of acts done prior to 10th August, 1854<. 
 The annuities excepted from the old Act are the following : — 
 
 Exceptions 1. Those by will. 
 
 ^'^°'"' 2. Those by marriage settlement. 
 
 S. Those to advance a child. 
 
 4. Those secured by the transfer of stock in the public funds, 
 
 the dividends whereof were of greater (or equal) annual 
 value than the annuity. 
 
 5. Voluntary annuities. 
 
 6. Annuities granted by Corporations. 
 
 7. Annuities granted under any authority or trust created by 
 
 Act of Parliament {h). 
 How far A personal annuity granted in fee simple partakes to this 
 
 realty. extent of the nature of real property, that on the decease of 
 
 the grantee intestate it descends to his heir; but will pass under 
 a general bequest of personalty. Lord Hardwicke thought that 
 if the will only appoints executors, the annuity will descend to 
 the heir as realty (i), but the Court of Queen's Bench subse- 
 quently held, that if there be a residuary bequest of the person- 
 alty to the executors, it will go to them as personalty (k). 
 
 If the annuity be granted to one and the heirs of his body, 
 this is an hereditament, and not a tenement, and therefore not 
 within the Statute de Denis (Z), but like a conditional fee simple 
 at Common Law : consequently, upon the fulfilment of the con- 
 
 (c) Ibid. (/t) 53 Geo. 3, c. 141, s. 10. 
 
 (d) Co. Litt. 144b, note (2) by Butler. («) Earl of Stafford v. Buckley, 2 
 
 (e) Ibid. 144 b. Ves. sen. 179. 
 
 (/) 53 Geo. 3, c. 141. {k) Aubin v. Daly, 4 Barn. & Aid. 59. 
 
 {g) 17 & 18 Vict. c. 90. (/) 2 Ves. sen. 179.
 
 PERSONAL ANNUITIES. 419 
 
 dition (i. e., on the birth of issue of the grantee), it becomes his 
 absokite property, and may be alienated by him as such. 
 
 If granted piir autre vie, with or without a special occupant Special occu- 
 {e.g., to A. and his heirs, or to A. sirujilicitcr, during the life of ^'*"'^^ °' 
 B.), the grantee may dispose of it by will, and if he should die, 
 living the cestui que vie, it shall, in the case of there being no 
 special occupant (i. e., of its having been limited to him shn- 
 pliciter), or if the executor be special occupant, be assets in his 
 hands as the other personal estate. 
 
 In case the heir be named as special occupant, and the grantee 
 do not dispose of it by will, it will be chargeable in the hands 
 of the heir, as in the case of freehold lands (w). 
 
 The remedies of the grantee of an irredeemable personal Remedies of 
 annuity at Law are as follows : — grantee. 
 
 A writ of Annuity, though obsolete, is still one of the grantee's At Law. 
 legal remedies for recovering a personal Annuity, and it lies 
 either for the grantee, or his heirs, or his or their grantee (?*). 
 
 Judgment obtained in this action remains a security under 8 & 
 9 Will. 3, c. 11, for the future payment of the Annuity (o). 
 
 An action of Debt also lies for the arrears due after the deter- 
 mination of the Annuity ( p). 
 
 If the deed contain a covenant for payment, the grantee may, 
 in an action upon such covenant, recover the value of the 
 breaches which he may be able to prove (^), but the judgment in 
 this action does not stand as a security for future breaches. 
 
 Where the Annuity is granted, as it frequently is, by a bond 
 in a penalty, the grantee will have the usual remedies of a 
 bond Creditor (r) : he must assign breaches, and judgment will 
 stand as a security, as far as the penalty, and for future breaches. 
 
 If the grant has not been actually made, but there has been 
 an agi'eement (not under seal) to make it, the grantee may, if 
 there was a sufficient valuable consideration for the contract, 
 recover damages in " assumpsit" for the injury he has sustained 
 from the breach of contract (*•). 
 
 If he has paid his consideration money, but the grantor 
 refuses to pay the annuity, or the deed has been set aside for in- 
 formality, the grantee may recover back his money in an action 
 for money had and received to his use {t). 
 
 (m) 7 Will. 4 & 1 Vict. c. 26, s. 6. (q) Ibid. 402. 
 
 (n) Co. Litt. 144 b. (r) Ante, p. 138 et seq. 
 
 (o) Lumley on Ann.392 ; ante, p. 142. (*) Lumley on Ann. 71. 
 
 (p) Ibid. 394. {t) Shove v. Webb, 1 T. R. 732. 
 
 E E 2
 
 420 ANNUITIES. 
 
 If the grant is a Pension claimed by a clergyman in right of 
 his benefice, the grantee may sue for it either in the Common 
 Law or Ecclesiastical Courts, at his election (w). Pensions are 
 sums of money payable by virtue of some decree of an Ecclesi- 
 astical Judge upon a controversy for tithes, or they have arisen 
 by virtue of a deed made by consent of the patron, ordinary and 
 parson (x). 
 
 If the Annuity be due from the Crown, the grantee may have 
 a Petition of Right, or Monstrans cle Droit (?/). 
 In Equity. As has been already said (z), the Court of Chancery will not ge- 
 
 nerally interfere, where a Creditor has a legal interest and remedy. 
 
 But where the grant has been improperly made, or the grantee 
 has an equitable interest only, as a cestui que trust, or is the 
 assignee of a bond given to secure the Annuity, or where the 
 assignor refuses to sue, then Equity entertains his suit : the 
 relief given is usually by conferring upon him a legal ownership, 
 by directing a legal conveyance ; or by compelling the legal 
 owner to suffer his name to be used in proceedings at Law (a) ; 
 or by vacating the security (h). 
 
 An Agreement to grant a personal annuity may be specifically 
 performed (c), or damages for its breach may be given in 
 Equity (cZ). 
 
 And if the grant is by will, then the annuitant is considered 
 in the light of a legatee, and may enforce his rights as such in 
 Chancery by bill or claim, after the grantor's death, by an 
 ordinary administration suit(e). 
 
 The grantee has no non-judicial remedies for enforcing his right. 
 Remedies of The grantor has no non-judicial remedies. His judicial 
 
 grantor. Equitable ones, are the cancellation or setting aside of the grant, 
 
 when obtained from him on unconscionable terms, or under 
 circumstances of fraud, he repaying the consideration money ; or 
 staying an action on a grant so obtained; or a specific per- 
 formance of the agreement if it rests in fieri (f). 
 
 But the Court will not set aside an agreement for an annuity, 
 merely because it is sold too cheap, if there is no imposition 
 practised on the grantor (^), or the inadequacy of price be not so 
 
 (u) Smyth v. Bishop of Lincoln, 2 (b) Ibid. 424. 
 
 Keble, 439. (c) Ball v. Cogg, 1 Bro. P. C. 140. 
 
 (x) 3 Burn's Eccles. Law (Phill.) 106. (d) 21 & 22 Vict. c. 27, s. 2. 
 
 («/) Lumley on Ann. 385; and post, (e) Ante, p. 296. 
 
 Book II. (/) Withy v. Cottle, I S. & S. 174. 
 
 (z) Ante, p. 167. (g) Floyer v. Sherard, Ambl. 18. 
 
 (a) Lumley on Ann. 412.
 
 PERSONAL ANNUITIES. 421 
 
 excessive, as to amount in itself to clear evidence of fraud (/i). 
 In many cases the Court, though it will not set aside an agree- 
 ment, will not extend any relief to the grantee (i). 
 
 Where, the case being within 53 Geo. 3, c. 141, the formalities 
 of that Act have not been complied with, his judicial Legal reme- 
 dies are to obtain, at Law, an order to stay the action against him 
 on the deed and for its cancellation. 
 
 Some Annuities are granted not absolutely, but, by way of Redeemable 
 Mortgage, to secure an advance of money. When this is cleai-ly 
 established to be the intention of the parties, the transaction 
 will be treated as a loan, and the Annuity will be redeemable, 
 although the proviso was that it should be repurchaseable(7e). 
 A personal covenant by the grantor in the deed to pay, or a 
 stipulation that he shall pay the expense of it (Z), or that the 
 grantee shall have six months' notice before being paid off, are 
 evidences of such intention, though not conclusive (rn). 
 
 The power to repurchase an Annuity is not, necessarily, 
 identical with a power to redeem it; but "where the stipulation 
 for the liberty of repurchasing is concomitant with the grant, 
 the Court of Chancery goes very unwillingly into the distinction, 
 and endeavours to bring the case to be one of Redemption " in). 
 
 Where the annuity is redeemable and valid, the grantee has Remedies of 
 no non-judicial remedies ; but his judicial ones, at Law, are the S^^^^^^- 
 same as in the case of irredeemable annuities, viz., those of an 
 action of annuity, of debt, covenant, or assumpsit, as the case 
 may be (o). 
 
 In Equity he will be entitled, if the agreement is in fieri only, 
 and the grantor refuse to complete, to obtain a specific performance 
 of it, or damages, as in the case of an irredeemable annuity (p). 
 
 On the other hand the grantor may sue, and have a decree in Of grantor. 
 Equity, for Redemption (gf), and, as in irredeemable annuities, to 
 set it aside if improperly obtained (r). 
 
 Stock, as applied to the public funds, is the right to receive Stock, what, 
 for ever certain annuities by half-yearly payments, subject to 
 the right of the public (e. e. Government) to redeem them on pay- 
 ment of a stipulated sum, viz., the nominal value of the stock (s), 
 called par. 
 
 (A) See cases collected Ambl. 18, (w) Longuetr.Scawen, i Ves.sen.402. 
 
 n. (2). (o) Ante, p. 419. 
 
 (j) Ambl. 19. (;;) Ante, p. 420. 
 
 (A-) Lawley v. Hooper, 3 Atk. 278. {q) Seton on Decrees, 232. 
 
 (Z) 5 Jarm. 15yth.(S\v.)84. (r) Ante, p. 420. 
 
 (?«) 3 Atk. 280. (i) Kirby v. Potter, 4 Ves. 750 a.
 
 422 
 
 ANNUITIES. 
 
 But the stockholder or proprietor cannot call on the Govern- 
 ment to redeem them. 
 
 General capital stock of Companies within 8 & 9 Vict. c. 16, 
 into which shares may be consolidated, is the conversion of 
 shares into capital (s), to be divided among the shareholders ac- 
 cording to their respective interests. 
 
 So Companies within the Joint Stock Acts, 1856, 1857, may 
 by special resolution convert all or any portion of any shares, 
 which have been fully paid up, into stock. But the Acts contain 
 no definition of Stock. 
 
 Section 2. 
 Rent- Charges. 
 
 Absolute. 
 
 Remedies of Grantee. 
 N on -Judicial. 
 Judicial. 
 
 At Law. 
 In Equity. 
 Remedies of Grantor. 
 Rent-Charges by way of Security. 
 
 Priorities of Rent-Charges. 
 Registration of Rent- Charges. 
 Interest on. 
 
 Statute of Limitations. 
 Bankrupt Grantor. 
 Release of Rent- Charge. 
 Tithe Rent-Charges. 
 
 Absolute rent- 
 charge. 
 
 A RENT-CHARGE has been already defined (t). Though an an- 
 nuity, it will be seen that its essential difference from a personal 
 annuity is, that it is charged on land. A rent-charge may be 
 granted inter vivos or by will ; if inter vivos, it must be by deed ; 
 and is within the Statute of Uses (m). Therefore, if land be con- 
 veyed to A., to the use that B. may receive thereout a rent, the 
 use is executed in B., and he acquires the legal estate in the 
 rent-charge ; and if an use or trust of it in favour of C. be en- 
 grafted on B.'s use, it will not be executed under the Statute, 
 but, as in the case of lands, will remain a trust cognizable in 
 Equity only {v). 
 
 The Law of Tenure has no application to a rent-charge. 
 Therefore, if the owner in fee simple of such a rent dies without 
 heirs, it simply ceases to exist ; it does not escheat like land {w). 
 Nor is the widow of a tenant in tail of a rent-charge entitled to 
 dower out of the landa.s against the donor (x). And upon this 
 same principle, viz., that the owner of the rent, whether by 
 grant inter vivos or by will, has no right to the land, he has no 
 
 («) 8 & 9 Yict. c. 16, ss. 61,61.. 
 
 (t) See Section " Rents & Policies." 
 
 (m) 27 Hen. 8, c. 10, ss. 4,5. 
 
 (v) Wms. Real P. 272 (4th ed.) 
 (w) Co. Litt. 298 a, n. (2). 
 (x) Ibid.
 
 RENT-CHARGES. 
 
 423 
 
 remedy by action of ejectment against the land for it {x), unless 
 under the power of entry expressly given him (?/). 
 
 A rent-charge may be granted in fee simple, fee tail, for life, Special occu- 
 or for years, if the grantor has* such an interest in the land (z). 
 These rents in fee simple, however, — the grants of which are 
 not at all uncommon, — must be carefully distinguished from those 
 grants of fee simple lands reserving rents, from which quit or 
 chief rents have arisen (a), which are rents incident to tenure. 
 
 The grantee may dispose of the rent-charge by will : and in 
 case he do not dispose of them by will, and the heir be special 
 occupant, it shall be chargeable in the hands of the heir, as in 
 case of freehold lands ; and in case there be no special occupant, 
 or the executor or administrator be special occupant, it shall be 
 assets in his hands as the other personal estate of the deceased (5). 
 
 The grantee of a rent-charge has all the judicial legal re- Grantee's 
 medies which we have seen the grantee of a personal annuity remedies. 
 has, and in addition the following non-judicial ones. 
 
 1. Where the deed contains a power of entry, the grantee Non-judicial. 
 may, in default of payment, enter and take possession. This 
 power of entry may be either a Common Law power, or be Entry, 
 limited by way of use. Thus a grant of a rent-charge, with a 
 declaration that if the rent be arrear, the grantee may enter, 
 may be taken as an instance of the former sort : a conveyance 
 to A., to the use that B. may receive a rent-charge, and to the 
 further use that if it be unpaid, &c., B. may enter — a sample of the 
 second class (c). Yet in both, it seems, the grantee acquires upon 
 entry under the power, — which will pass to his assignee {d), — a 
 legal estate in the land, and may bring ejectment (e) : so that the 
 distinction is not of any practical moment. 
 
 If the anriliitant enter, he is entitled to hold only quousque, 
 i. e., until the arrears are paid (/). And the Court of Chancery 
 will impose no terms on the grantor i-esuming possession after 
 they are paid {g). 
 
 Formerly, a power of distress was essential to make a rent a Distress, 
 rent-charge. But now that such a power is attached to rents- 
 seek (/<), it is not necessary, though it is usual, to insert such a 
 power in the deed. 
 
 (x) Cole on Ejectment, 571. {d) 3 Cruise Dig. 287. 
 
 {y) See below. (e) Gilbert on Rents, 139. 
 
 (a) Co. Litt. 298 a, (n. 2). _ (/) Cole on Ejectment, 571. 
 
 (a) Wms. Real P. 27ti. (^) Hooper v. Cooke, 25 L. T. 286. 
 
 {b) 7 Will. 4 &■ 1 Vict. c. 26, ss. 3, 6. (/;) 4 Geo. 2, c. 28, s. 5. 
 
 (c) 2 Jarm. Byth. (Sweet), 47, 48.
 
 424 
 
 ANNUITIES. 
 
 In Equity. 
 
 Grantor's 
 remedies. 
 
 Rent-charge 
 by way of 
 security. 
 
 As has been said before in treating of rents generally (h), the 
 Court of Chancery will not interfere where there is a clear and 
 precise remedy at Law ; and generally there is such a clear and 
 precise remedy, in cases between the owner of the rent and the 
 owner of the land. 
 
 But where the grantee has an equitable title only, as a cestui 
 que trust, or is the assignee of a bond given to secure the annuity, 
 or the equitable purchaser of the rent {e.g., where the owner of it 
 has contracted to sell it), the relief given is, as in the case of 
 personal annuities {i), usually that of conferring, on the plaintiff 
 in Equity, a legal character, by directing a legal conveyance, or 
 compelling the party who has the legal character to sutler his 
 name to be used in proceedings at Law. 
 
 So, if the deed of grant be lost; notwithstanding that the pro- 
 fert of the deed may be dispensed with at Law {h). 
 
 The Court of Equity will also appoint a Receiver to collect rents 
 and pay incumbrances, when the grantee is equitably entitled (Z). 
 
 Where there has been a due consideration, and it has been 
 covenanted that an annuity should be granted, all the cove- 
 nantor's property shall, in the absence of any stipulation to the 
 contrary, after his decease, be held chargeable {m), and even in 
 his lifetime, if the covenant be to pay out of his real and personal 
 estate (w), for it then amounts to an equitable mortgage (o) ; and 
 a covenant by the grantor to charge the annuity on all such 
 property as he should become possessed of at another person's 
 death (/>), will be specifically performed : though now the Court 
 of Chancery has power to assess damages for breach of a cove- 
 nant or agreement, instead of, or in addition to, decreeing specific 
 performance {q). But the grantee has no right to the title deeds 
 of the estate on which it is charged (r) : therefore 'possession of 
 them is no safeguard against such an incumbrance ; and hence 
 the necessity for its registration (s). 
 
 The grantor's remedies appear to be the same as those which 
 he has in the case of irredeemable personal annuities {t). 
 
 Where the rent-charge is by way of security, the grantor may 
 have a decree in Equity for redemption {u) ; or, if the case be 
 
 {h) Ante, p. 151. 
 
 (i) Ante, p. 420. 
 
 \k) 5 Ves. 238 a ; C. L. P. Act, 1852, 
 s. 55. 
 
 (Z) Davis t'. Duke of Marlborough, 
 1 Sw. 74. 
 
 (m) Griffith y. Anvill,Colles P.C. 52. 
 
 (w) Ravenshaw v. Hollier, 7 Sim. 3. 
 
 (o) Ante, p. 341. 
 
 (/)) Lyde v. Mynn, 1 M. & K. 683. 
 
 (<7) 21 & 22 Vict. c. 27, s. 2. 
 
 (r) Wms. Real P. 376. 
 
 (s) Post, p. 425. 
 
 {t) Ante, p. 420. 
 
 (m) Favvcet i'. Bowers, 2 Vcrn. 288.
 
 RENT-CHARGES. 
 
 425 
 
 within 53 Geo. 3, may have the same remedies at Law, as if it 
 were a personal annuity («) ; whilst, as regards the grantee, there 
 is a species of foreclosure which a Court of Equity will apply 
 against the redemption, where the grantor is in default ; but the 
 foreclosure will be not of the land itself, but of the power of re- 
 deeming the rent-charge (u). 
 
 The rules for ascertaining the priorities of the annuitant and Priorities, 
 other incumbrancers will be, generally, the same as in the case 
 of mortgagees (x), inter se, and against other incumbrancers. 
 
 But the case is different as to the terms which an annuitant 
 and mortgagee are put on, in the event of redemption. In 
 mortgages, the contract is to repay principal ; in repurchaseable 
 annuities, it is at the option of the grantor to repay or not. 
 Therefore, although a bill by a subsequent annuitant offers to 
 redeem prior repurchaseable annuities, the Court will not hold 
 him to his offer where it is inequitable. But a prior ordinary 
 mortgagee can only be sued by a subsequent annuitant upon 
 those terms (?/). Where the prior annuity is not repurchaseable, 
 the subsequent incumbrancer can only be put under the obliga- 
 tion of paying the arrears of the first (z). 
 
 *' The mode of borrowing money upon annuity is of common 
 occurrence. The effect of the transaction is, that the money 
 borrowed is to be repaid by instalments, 'consisting partly of in- 
 terest and partly of principal : whether the annuity be for a term 
 of years or for a life or lives, the transaction is in substance the 
 same. The value of the life in respect of its probable duration 
 is a matter of calculation, and as the principal is put in hazard, 
 the amount of the interest was not regulated by the " Statutes of 
 Usury" (a) whilst they lasted. 
 
 Annuities or rent-charges granted otherwise than by mar- Registration, 
 riage settlement, or will, for one or more life or lives, or for any 
 term of years, or greater estate determinable on a life or lives, 
 shall not affect lands as against purchasers, mortgagees, or cre- 
 ditors, until a memorandum containing the name, place of abode, 
 and title, trade, or profession of the person whose estate is in- 
 tended to be affected thereby, shall be left with the Senior Master 
 of the Common Pleas at Westminster (6). 
 
 The " Creditors," as against whom registration is necessary, 
 would seem to be the same as those against whom the registra- 
 tion of judgments is necessary (c). 
 
 (m) Ante, p. 420. (2) Ibid. 
 
 («) Carnesew v. Arscott, 1 Vern. 209. (a) Bulwer v. Astley, 1 Phil. 433. 
 
 ix) Ante, p. 384. (i) 18 & 19 Vict. c. 15, s. 12. 
 
 (?/) Knight V. Bowyer, 2 De G. & J. (r) Ante, p. 27. 
 421. 
 
 E E 5
 
 426 
 
 ANNUITIES. 
 
 Rent-charges granted before 17 & 18 Vict. c. 90, are not 
 affected by that Act, and are therefore liable to the old Law, and 
 must have been enrolled under it ; with the same exceptions as 
 the personal annuities above mentioned {d). 
 
 Interest. If the grantee bring his action at Law, the jury have a dis- 
 
 cretion to give him interest, at a rate not exceeding the current 
 rate {e), if the rent is payable at a time certain. The 3 & 4 Will. 
 4, c. 42, has been applied to the Court of Chancery : as it is 
 absolutely necessary for that Court to adopt many of its provi- 
 sions, though originally framed only for the Courts of Law ; and 
 accordingly in a case between two Creditors, annuitants of a 
 deceased Debtor, interest was given them under the 28th sect, of 
 that Act (/). But the general rule is, that the Court of Chancery 
 will not give interest on arrears of an annuity, whether given by 
 deed or will {g). 
 
 The cases in which it is allowed there are, first, when the 
 nature of the security is such, that if the remedy were enforced 
 at Law, and possession taken, the party so taking possession would 
 be entitled at Law to retain it, until he was satisfied not only 
 the gross amount of the arrears, but also interest upon those 
 arrears ; and secondly, where the conduct of the party who has 
 granted the annuity, or the situation of the property subject to 
 the annuity, is such, as*to make it not the fault of the Creditor 
 that he has not prosecuted his remedies at Law, but the fault of 
 the Debtor (/i). 
 
 If the annuity, whether personal or a rent-charge, be secured 
 by bond or other specialty, or (being a rent-charge) be granted by 
 an indenture of demise, an action to recover it must be brought 
 within twenty years after the cause of action {i). 
 
 If the annuity be a rent-charge, the owner must bring his entry, 
 distress, or ejectment, within twenty years next after the right to 
 do so accrued to him or some person through whom he claims (^). 
 
 Arrears. And he cannot recover more than six years' arrears of the 
 
 rent-charge next after the same shall have become due (or aftei? 
 a written acknowledgment shall have been given to him or his 
 agent, by the person liable, or his agent), by any distress, action, 
 or suit other than such action as he would be entitled to on any 
 personal covenant (Z). 
 
 Statute of 
 Limitations. 
 
 {d) Ante, p. 418. 
 (e) 3 & 4 Vy^ill.4, c. 42, s. 28. 
 (/) Hyde v. Price, 8 Sim. 578. 
 ig) Powell's Trust, 10 Hare, 134. 
 {h) Booth V. Leycester, 1 Keen, 256. 
 
 (J) 3 & 4 Will. 4, c. 42, s. 3. 
 (A-) 3 & 4 Will. 4, c. 27, s. 3. 
 (/) Hunter v. Nockolds, 1 Mac. & G. 
 640.
 
 RENT-CHARGES. 
 
 427 
 
 Therefore, it is presumed, where the rent-charge is collaterally 
 secured by a personal covenant, if the grantee come into Equity 
 against the land, though he has twenty years to sue in, he can 
 recover but six years' arrears ; whereas if he had proceeded at 
 Law on his personal covenant, he would have had twenty years to 
 bring his action in, and might recover that amount of arrearages. 
 
 The time within which the grantor or grantee may redeem or 
 foreclose a redeemable rent-charge, is the same as that which the 
 Law prescribes in the case of ordinary mortgagors and mort- 
 gagees of land {m). 
 
 A rent-charge is not a chose in action, so as to require the Not a chose in 
 mortgagee of it to give notice to the legal owner, in order to 
 perfect his title to it as against other incumbrancers (n). 
 
 If the owner of land subject to a rent-charge become bank- Bankrupt 
 rupt, his assignees may be compelled by the owner of the rent S^^^^°^' 
 to elect to take, or decline, the land. If they take it, the bank- 
 rupt is discharged from rent accruing after the petition for adju- 
 dication. If they decline it, he is also discharged from it, if he 
 deliver up the conveyance, or agreement for conveyance, under 
 which he claims to the rent-owner within fourteen days of his 
 having notice of their election (o). 
 
 The grantee may prove for the value of the annuity, whether 
 it be a personal one or a rent-charge, and whether there be or 
 be not arrears due on it at the bankruptcy, deducting from the 
 original price such diminution as shall have been caused by the 
 lapse of time from the grant to the date of filing the petition (p). 
 
 But the grantee must not sue the bankrupt's sureties for the 
 annuity, until he shall have proved against the bankrupt (q). 
 
 Where an executor liable, as such — under a lease since August 
 13, 1859 (r) — to the rents, covenants, and agreements contained 
 in a conveyance on rent-charge, has satisfied all liabilities, 
 which have accrued before he conveys the property to a pur- 
 chaser, and set apart money to answer all future ascertained 
 liabilities in respect thereof, he may distribute the residuary per- 
 sonal estate, without being personally liable for doing so in re- . 
 spect of any subsequent claims, though the grantor of the land, 
 and those claiming under him, may still follow the assets into the 
 hands of the distributees (s). 
 
 {m) Ibid.; ante, p. 392. (q) Ibid. s. 176. 
 
 (n) W^iltshire v. Rabbits, 14 Sim. 76. (r) Dodson v. Sammell, 5 Jur. N. S. 
 
 (o) 12 & 13 Vict. c. 106, s. H5. 137. 
 
 Ip) Ibid. s. 175. (s) 22 8i 23 Vict. c. 36, s. 28. 
 
 E E 6
 
 428 
 
 ANNUITIES. 
 
 Release of. 
 
 Tithe rent- 
 charge. 
 
 Interpleader. 
 
 A suit lies in the Ecclesiastical Courts for a rent-charge de- 
 vised out of a term for years or life, but prohibition will lie for 
 such a suit, if the rent-charge be out of a fee{t). 
 
 The release from a rent-charge of part of the lands charged 
 therewith shall not extinguish the rent-charge, and shall not 
 prejudice persons interested in the hereditaments remaining un- 
 released, and not concurring in or confirming the release (u). 
 
 Tithe rent-charges, for which tithes have been now pretty 
 generally commuted throughout the country, are recoverable by 
 distress (x) ; but, unlike rent-charges generally, no one shall be 
 personally \iah\e to the payment (?/). If there be no distress, 
 and the rent-charge be in a?rear forty days, the owner of it may 
 be put in possession by the Sheriff, till the arrears (not exceeding 
 two years) and costs are paid {z). Powers of sale and exchange 
 given by any Act in the case of tithes, and all the liabilities and 
 incidents belonging to them, extend to tithe rent- charge, the 
 interest of which is apportionable between the owner and his 
 successor, under the Appointment Act (a) ; as perhaps, also, its 
 liability is, as between the parties subject to it. 
 
 In concluding the subject of Debts between subject and sub- 
 ject, it may be observed, that a defendant at Law sued for the 
 recovery of money, or a Sheriff executing process, may compel 
 claimants to such money or goods to interplead there, although 
 their titles thereto may not have a common origin (h). 
 
 The defendant at Law may also proceed by bill of Interpleader 
 in Equity instead, even though the matter be one of Common 
 Law cognizance ; and if he does, a Court of Common Law will, 
 generally, not interfere (c). In such a case Equity will some- 
 times order the defendants in Equity to interplead at Law, 
 sometimes in Equity {d). 
 
 But Equity has an exclusive jurisdiction in Interpleader, where 
 the title of one of the claimants is equitable, and a fortiori, where 
 all the titles are such. Thus, where a debt has been assigned, 
 and a controversy arises between the assignor and the assignee, 
 the Debtor may bring a bill of Interpleader to decide whom he 
 shall pay (e). 
 
 (0 Tooker v. Tooker, 2 Keble, 95. 
 
 (m) 22 & 23 Vict. c. 35, s. 10. 
 
 (a:) 6 & 7 Will. 4, c. 71, s. 81, 
 
 {y) Ibid. s. 67. 
 
 {z) Ibid. s. 82. 
 
 (a) 4 & 5 Will. 4, c. 22. 
 
 (6) 23 & 24 Vict. c. 126, s. 12. 
 
 (c) Archb. Pr. 1310. 
 
 (d) Story, Eq. Jur. sect. 805. 
 
 (e) Wright v. Ward, 4 Russ. 215 
 Lowndes v. Cornford, 18 Ves. 299,
 
 ( 429 ) 
 
 Book II. 
 
 CROWN DEBTS. 
 
 — ♦ — 
 
 CHAPTER I. 
 
 debts due to the crown from a subject. 
 
 Section 1. 
 Specialties. 
 
 Debts within 33 Hen. 8. c. 39. 1 ^o County Registration. 
 
 Writ of Extent. Chattels Real Uahle. 
 
 u ^^„„„t«^ Personalty liable. 
 
 ^U;n:^elo it. Extent in chilf in the second an, third 
 
 From what time bound. degree. 
 
 Till when C-roww v. Purchaser. 
 
 Common Pleas Registration. 1 Crown v. Judgment Creditor. 
 
 I PROPOSE to consider Crown debts under the three following 
 
 classes : — 
 
 1. Debts within 33 Hen. 8, c. 39. 
 
 2. Debts within 13 Eliz. c. 5. 
 
 3. Simple contract debts not within 13 Ehz. 
 
 Mr. Manning classes them under four heads, viz. (a) :— 
 Debts not of Record. 
 Debts by ministerial Record. 
 Debts by private Record (amongst which he classes debts 
 
 within 33 Hen. 8, c. 39). 
 Debts by judicial Record. 
 But I think the classification I propose will be found more 
 convenient and equally comprehensive. 
 
 All obligations and specialties for any causes touchnig the Debts of 
 Crown have the force of Statutes Staple (b), and are debts of 
 record. A debt of record, as regards the Crown, is subject in 
 general to the same definition as where the Creditor is a 
 subject. 
 
 (a) Mann. Exch. Pr. (2nd ed.) 1. (6) 33 Hen. 8, c. 39, s. 50.
 
 480 DEBTS DUE TO THE CROWN FROM A SUBJECT. 
 
 Upon a Statute Staple (c), if the Debtor, called the " conusor," 
 cannot be found within the Staple, nor his goods, to the amount 
 of his debt, the Mayor of the Staple sends the Statute Staple, 
 under the King's seal, into Chancery: after which the body, goods, 
 and such of the lands of the conusor as are liable to an extent {d), 
 may be taken all in one writ of extent (e), which is obtained 
 from the Court of Exchequer generally after an action of sci. 
 fa. (/), to warn the Debtor to show cause {g) ; but where the 
 debt is in danger of being lost immediately {h), an immediate 
 extent may issue in or out of term without motion (i). 
 
 The writ is returnable into Chancery, and under it similar pro- 
 ceedings are taken against the lands and goods (the process is 
 hardly ever executed against the body) (k), as under an elegit, 
 except that the Sheriff seizes them first into the King's hands, 
 and the Crown (the conusee) must sue a "liberate" out of Chan- 
 cery, commanding the Sheriff to deliver all the lands and chattels 
 to him (/). Upon the issuing of this last writ, and not till then, 
 is legal possession delivered to the conusee (m), and this delivery 
 it is which completes the execution : to obtain actual possession 
 the conusee must bring ejectment (n). 
 Lands liable. The Debtor, however, does not become liable, upon the spe- 
 
 cialty, until breach of the condition of the obligation; until breach, 
 the Crown can only issue an extent upon a commission and in- 
 quisition finding the debt (o). 
 
 Upon a legal extent the following species of real estate may be 
 taken : — 
 
 Legal and Trust estates. 
 
 Equities of Redemption. 
 
 Lands held by a husband and wife in her right, at least during 
 the coverture. 
 
 Land of which the Debtor may revoke the uses (p). 
 
 Land held in severalty, in common, or in coparcenary (q). 
 
 Rents service and rent-charges. 
 
 Impropriate tithes. 
 
 Lands of ancient demesne (r) (that is, those lands which appear 
 
 (c) Ante, p. 302. (3rd ed.) 
 
 {d) What are, see below. {1} 2 Saund. ( Wms.) 70 c. (n.) 
 
 (e) Prid. Judgm. 147. {m) 2 Saund. (Wms.) 70 d. (n.) 
 
 (/) What tbat is, ante, p. 96. (n) Ibid. 
 
 (g) Mann. Exch. Pr. (2nd ed.) 2. (o) Rex v. Tarleton, 9 Price, 647. 
 
 (h) Ibid. (p) Mann. Exch. Pr. 39. 
 
 (i) West on Extents, 49. (?) Prid. Judgm. 149. 
 
 {k) 4 Blackst. (Steph.) 68, n. (g), (.>•) Mann. Exch. Pr, 41, 42.
 
 SPECIALTIES, 431 
 
 by Domesday Book to have been then actually in the hands 
 of the Crown) (s). 
 Lands in the seisin of any person to whom the same shall 
 descend, revert or remain in fee simple, or in fee tail, gene- 
 ral or special, by, from or after the death of any of his or 
 their ancestor or ancestors as heir, or by gift of his ancestor, 
 whose heir he may be (t). 
 Lands charged and chargeable with the debt, in the seisin or 
 possession of divex's and sundry persons other than the 
 obligor (u) : which provides in effect for contribution among 
 purchasers inte?- se{v). 
 All the above species of Realty are bound as from the date of When bound. 
 the specialty (x) (unless the security be a bond on condition, 
 and then from the breach), and will continue bound until the 
 Debtor causes a quietus to be entered by the Senior Master of 
 the Common Pleas (y), or until the Commissioners of the Trea- 
 sury, on payment by the Debtor into the Exchequer of such 
 sum as they think fit in liquidation of the debt, certify that his 
 lands shall be held (except in the case of leases in respect of 
 the rents and covenants, and except the Debtor's other lands) {z) 
 discharged therefrom (a). 
 
 The specialty need not, to bind the lands as between the Crown Registration of. 
 and Debtor, be registered in the Common Pleas. As between 
 the Crown, however, and subsequent purchasers and mortgagees 
 from the Debtor, it must, to bind them, be registered in the 
 Common Pleas, but need not be enrolled (b). 
 
 The Registry Acts (c) expressly exempt from the necessity of 
 County Registration Statutes and Recognizances entered into in 
 the name of the Crown, and as obligations and specialties to the 
 Crown, which we are considering, are placed on the footing of 
 Statutes Staple (c/), it would seem that such obligations and 
 specialties do not require County Registration to affect lands in 
 the Register Counties (e). 
 
 The following species of land are not liable to an extent to Lands not ' 
 the Crown :— "^*'^«- 
 
 Copyholds (e). 
 
 («) 1 Blackst. (Steph.) 215. (a) Ibid s. 10. 
 
 (t) 33 Hen. 8, c. ?9, s. 75. (6) 5 Jarm. Byth. (Sw.) G4 f. 
 
 (u) Ibid. s. 80. (c) 5 Anne, c. 18, s. 4 ; 6 Anne, c.35, 
 
 (v) 5 Jarm. Byth. (Sw.) 66. s. 19 ; 7 Anne, c. 20, s. 18 ; 8 Geo. 2, 
 
 (j-) Ibid. 65. c. 6, s. 1. 
 
 (?/) 2 & 3 Vict. c. 11, s. 9. (d) Ante, p. 429. 
 
 (x) Ibid. s. 11. (e) Mann. Exch. Pr. 42.
 
 43^ 
 
 DEBTS DUE TO THE CROWN FROM A SUBJECT. 
 
 Chattels real 
 liable. 
 
 Personalty 
 liable. 
 
 Extent in 
 chief in the 
 second degree. 
 
 Lands held by the Debtor in joint tenancy — as against the 
 
 Debtor's joint tenant surviving (g). 
 Dower or jointure lands, unless the lien of the Crown 
 
 attached before marriage {h). 
 Tithes in the hands of spiritual persons^ 
 
 The Debtor's leaseholds, whether trust or legal (i), and his 
 estate, by elegit, which are only chattel interests {k), may be 
 taken under an extent, and may, like those of a subject Judgment 
 Debtor, be either sold, or appraised and delivered. But they 
 are not bound till the teste (J), (i. e., the date), of the writ of 
 extent ; but are lands within the Registration Act. 
 
 The Debtor's goods and chattels, whether held in trust for him 
 or not, are also liable to the extent (m), including his ready 
 money and choses in action, but they are not bound till the 
 teste of the writ (n). 
 
 With regard to debts due to the Debtor fi'om third persons, 
 every writ of extent directs the Sheriff to inquire into these, and 
 his return of them is the foundation of an Inquisition concerning 
 them ; and upon the return of such Inquisition, they become debts 
 of record to the Crown (o) in the first, second or third degree ; 
 according to the degree in which the particular Debtor is removed 
 from the original Crown Debtor. No debt, however, beyond the 
 third degree (exclusive of the original Crown Debtor), is liable to 
 the Crown (p). The lien of the Crown against the lands of the 
 derivative Debtor attaches upon the return of the Inquisition (5"), 
 and upon such return, an extent may issue against him. This 
 process, so issued, is called an extent in chief in the second 
 degree (r). 
 
 A subsequent purchaser or mortgagee without notice and 
 for value (s), and even a prior purchaser, if he has not com- 
 pleted his purchase at the date of a Crown specialty within 33 
 Hen. 8, will be bound by it, if it has been registered (t). 
 
 A judgment due from the Crown Debtor to a subject is 
 preferred, as against the Debtor's lands, to a specialty within 
 33 Hen. 8, c. 39, due from him to the Crown, if it has 
 
 (g) Ibid. 39. 
 
 (/() Ibid. 
 
 (0 Ibid. 43. 
 
 (Ic) Co. Litt. 42 a. 
 
 (Z) 5 Jarm. Byth. (Sw.) 69. 
 
 (w) Mann. Exch. Pr. 49. 
 
 (n) Ibid. 
 
 (o) Prid. Judgm. 174. 
 (p) 5 Jarm. Byth. (Sw.) 78. 
 (q) Ibid. 
 
 (r) Mann. Exch. Pr. 8. 
 (s) Rex V. Bailey, cited in Mann. 
 Exch. 37 (n). 
 
 (0 2 & 3 Vict. c. 11, s. 8.
 
 SPECIALTIES. 
 
 433 
 
 been completed before the Crown process has been put into the 
 Sheriff's hands (a;). The completion of the judgment would 
 appear to be not, as Mr. Jarman says, the delivery of the land (y) 
 by the Sheriff to the subject Creditor, but the " obtaining the 
 judgment" (z), i. e., entry of it. 
 
 The same is Law (a) as regards the Debtor's personalty, pro- 
 vided the subject Creditor perfect his execution^ by seizure and 
 sale before the award of Crown process upon the specialty (Z>). 
 
 Section 2. 
 
 Simple Contract Debts. 
 
 Debts within 1 3 Eliz. c. 4. 
 
 Realty, when bound. 
 
 Crown V. Purchasers. 
 Other Simple Contract Debts. 
 
 " Office found." 
 
 Sale under 25 Geo. 3, c. 35. 
 
 Realty, when bound. 
 
 Personalty, when bound. 
 Crown V. Purchaser. 
 
 V. Judgment Creditor. 
 V. Bankrupt or Insolvent. 
 Extent in aid. 
 Death of Debtor. 
 
 Diem clausit extreinum. 
 
 Simple Contract Debts due to the Crown from its Accountants — Simple con- 
 
 , . 1 • 1 /-I • i.1 • tract debts 
 
 I. e., persons havmg knowmgiy Crown money in then- posses- within 13 Eliz. 
 sion, — have the force of debts of record, and, as such, affect the 
 Debtor's lands from the time of the acceptance of the office, 
 although no debt be then actually due (c). 
 
 The following are the persons answering the description of Accountants. 
 accountants (d) : — 
 
 Treasurers or Receivers of the Courts of Exchequer, and 
 Duchy Chamber of Lancaster. 
 
 Treasurer of the Chamber 
 
 Cofferer of the Household 
 
 Treasurer for the Wars. 
 
 }° 
 
 f the Queen. 
 
 (j) 5 Jarm. Byth. 76. 
 {y) Prid. Judgm. 171. 
 (s) Per Patteson, J., in Giles v. 
 Grover, 6 Bligh, N.ll. 296. 
 
 {a) Prid. Judgm. 171. 
 {b) Swain v. Morland, 3 Moore, 740. 
 (e) Nicholls v. How, 2 Vern. 389. 
 (rf) 13 Eliz. C.4, s. 1. 
 
 F F
 
 484 DEBTS DUE TO THE CROWN FROM A SUBJECT. 
 
 Treasurer of any Garrison Town. 
 Treasurer of the Admiralty or Navy. 
 Persons accomptable for any office in the Mint. 
 Treasurer or Receiver of imprest monies {i. e., advanced by 
 the Treasury to some public office in charge to pay it 
 over to particular persons for certain purposes(/) ), or 
 otherwise for the use, of the Queen, or for provision of 
 victualling fortifications, buildings or works, or for any 
 other provisions to be used in Her Majesty's ordnance 
 and artillery, armoury, wardrobe, tents and pavilions, or 
 re vels. 
 Customers, collectors, or farmers of subsidies, imposts, or 
 
 other duties within any port. 
 Collector and under-collector of the tenths of the Clergy. 
 Collector of any subsidy or fifteenth. 
 
 Receiver-Genei'al of the Revenues of any County, answer- 
 able in the receipt of the Exchequer or Duchy of Lan- 
 caster. 
 Clerk of the Hanaper. 
 
 Persons I'eturned as defaulters to the Commissioners of 
 
 Taxes {g). 
 
 An extent may issiie in the same way, and against the same 
 
 species of the property of the accountant, as an extent upon a 
 
 specialty to the Crown, for his debts are, by the above statute, 
 
 made equivalent to statutes staple (/^). 
 
 To affect purchasers or mortgagees, the Crown debt must be 
 registered {i) ; but purchasers or mortgagees without notice will 
 not be affected by it, although registered {k), for registration is 
 not notice {I). 
 
 And the Crown may, after a sci.fa., sell the accountant's lands 
 as well after his death (saving bond fide purchases thereof), as 
 during his ]ife{m). 
 
 Purchasers under an extent, paying their money into the Court 
 of Exchequer, are exempt from claims of the Crown (n). 
 Other simple Other simple contract debts due to the Crown become debts 
 of record, upon being found so by inquisition (which is a minis- 
 terial record) (o), or by the judgment of a Court, which is a 
 
 (/) Casberd v. Att.-Gen., 6 Price, {k) Rex v. Smith, Wightw. 34. 
 
 424 (n.) {I) Ante, p. 27. 
 
 (^) 5 & 6 Will. 4, c. 20, s. 13. (m) 27 Eliz. c. 3, ss. 2, 3, 4. 
 
 {h) 13 Eliz. c. 4, s. 1. (m) 1 & 2 Geo. 4, c. 121. 
 
 (i) 2 & 3 Vict. c. 11, s. 8. (o) Mann. Exch. Pr. I. 
 
 contract debts.
 
 SIMPLE CONTRACT DEBTS. 435 
 
 judicial record ( q). Of this kind are amerciaments in the King's 
 Courts Baron, or Honour Courts, not of Record, and proceeds of 
 sales of estrays within his manors. So also is a bond assigned to 
 the King by the obligee, after the death of the obligor; and rents 
 reserved on leases for years, and fee-farm rents (r). Such a 
 Crown debt will therefore be postponed to a subject's debt by 
 record, but will still be payable before a subject's debt by 
 specialty or simple contract (s). 
 
 Estrays are such valuable animals as are found wandering in 
 a manor or lordship, and no man knoweth the owner of tliem, 
 in which case the Law gives them to the sovereign ; but now 
 they most commonly belong to the lord of the manor, by special 
 grant from the Crown {t). 
 
 A fee-farm rent is, where an estate in fee is granted, subject 
 to a rent in fee of at least one quarter of the value of the lands 
 at the time of the reservation, and is so called, because a grant 
 reserving so considerable a rent, is only like letting lands to farm 
 in fee simple («). 
 
 The Commission to "find'' the debt— i.e., to make it a debt "Office found." 
 of Record— issues by the Clerk in Court of the Crown, and is 
 directed to two Commissioners, whom it empowers to find whe- 
 ther the defendant be not indebted to Her Majesty, and to return 
 the inquisition, and it commands the Sheriff also to cause a jury 
 to attend before the Commissioners {x). 
 
 The debt being found, (and it may be found on the sole evi- 
 dence iy) of an affidavit), an extent issues as in the preceding 
 cases, either immediately or on sci. fa., and against the same 
 property. 
 
 Upon the return of an inquisition finding the debt, the Debtor's Sale. 
 lands may be sold by the Court of Exchequer on motion by the 
 Attorney-General, and conveyed by the King's Remembrancer, 
 by bargain and sale enrolled; and, after the making of such 
 conveyance and the enrolment thereof, the purchaser under such 
 bargain and sale, his heirs, executors, administrators, and assigns, 
 are protected against the Crown and the Debtor, and all pers^ons 
 claiming under the Debtor, and against any surety or sureties 
 for the Debtor— unless claiming by a title paramount (z) to the 
 extent. 
 
 (^) ^^^^- («) Ibid. vol. 1, 651 ; ante, p. 151. 
 
 (r) Com. Dig. Admon. (C. 2). {^) West on Extents, 21. 
 
 {s) Bac. Abr. Exors. L. (2). (y) Regina v. Ryle, 9 M. & W. 227 
 
 (0 2 Blackst. (Steph.) 532 (3rd ed.) {z) 25 Geo. 3, c. 35. 
 
 F F 2
 
 A3iy 
 
 DEBTS DUE TO THE CROWN FROM A SUBJECT. 
 
 Crown 
 t'. 
 Purchaser. 
 
 Judgment 
 Creditor. 
 
 Bankruptcy 
 assijriiees. 
 
 If the property intended to be sold under the above statute 
 be an Equity of Redemption, notice must be given to the mort- 
 gagee, and the Equity of Redemption only will be sold. The 
 Court will not direct the mortgage to be paid off, unless the 
 mortgagee consents (a). 
 
 The Debtor's realty, but not his chattels real, are bound 
 upon "office found." His personalty, including his chattels 
 real, as in cases within 33 Hen. 8, and 13 Eliz., is not bound 
 until the teste of the writ (6), which is always the same date as 
 the fiat (c). 
 
 The Crown debt does not require registration in order to 
 affect purchasers or mortgagees, as debts within 33 Hen. 8, 
 and 13 Eliz. do {d). A purchaser or mortgagee, however, with 
 notice will be bound by it(e), but not one without notice (f). 
 
 If a mortgagee of land has been paid off (but no reconvey- 
 ance taken of the land), prior to a subsequent mortgage or pur- 
 chase of it, no writ of extent, or other Crown process, against 
 such prior mortgagee, shall affect the land in the hands of such 
 subsequent mortgagee or purchaser (g). 
 
 As between such a simple contract debt to the Crown and a 
 judgment due to a subject, the same rules, mutatis mutandis 
 (both as regards the Debtor's real and personal estate), would 
 seem to obtain, as we have stated above (A) to obtain between spe- 
 cialties to the Crown within 33 Hen. 8, and judgments due to 
 subjects. 
 
 In the event of the bankruptcy of the Debtor, the Crown debt 
 will prevail against that of the Bankruptcy assignees, if the 
 Crown (i) process is awarded before, or even on the day of, their 
 appointment ; that appointment not relating back as against the 
 Crown, as it does in other cases, to the Act of Bankruptcy (k). 
 
 The Court of Bankruptcy may — where any real or personal 
 estate or debts of any bankrupt are extended by any person on 
 pretence of his being an accountant or Debtor to the Queen — 
 examine on oath, whether the debt was due to such Debtor 
 or accountant from the bankrupt, and if the debt were contracted 
 with, or in trust for, any other person than the Debtor or 
 
 (a) Mann. Exch. Pr. 64. 
 
 (6) 5 Jarm. Byth. 69. 
 
 (c) West on Extents, 97 n. (d). 
 
 (rf) 2& 3 Vict. c. 11, s. 8. 
 
 (e) 5 Jarm. Byth. (Svv.) 70. 
 
 (/) Rex V. Smitli, Wightw. 34. 
 
 (g-) 18 & 19 Vict. c. 15, s. 11. 
 (h) Ante, p. 432. 
 
 (i) Rex »i. Crumpton, cited 2 Ves. 
 sen. 294. 
 
 (k) Ex parte Smith, .5 Ves. 296.
 
 SIMPLE CONTRACT DEBTS. 
 
 437 
 
 accountant, the Court may order such real or personal estate or 
 debts to be sold for the Creditors of the Bankruptcy, and such 
 sale shall be valid against the extent (/). 
 
 A bankrupt's certificate does not discharge him from Crown 
 debts (m), and such debts are preferred to Creditors under the 
 bankruptcy («). 
 
 An Insolvent in custody on an extent (o), and a Judgment 
 Debtor for breach of the Revenue Laws, cannot obtain {p) a 
 final order under the Protection Acts. 
 
 Insolvents within 1 & 2 Vict. c. 110, are not discharged from 
 Crown debts, except with consent of Treasury. A prisoner under 
 any extent, issued at the instance of any person who may have 
 advanced money to pay the prisoner's Crown debt, may apply for 
 and obtain his discharge in the Court of Exchequer, on making 
 a full disclosure ; but such discharge shall not satisfy the 
 debt (y). 
 
 If the extent against the Crown Debtor's Debtor issues, as it Extent in aid. 
 may, at the instance of the original Crown Debtor (or of any of 
 those in the first or second degree), on affidavit that, unless it 
 does, the debt due to him from the Crown is in danger of being 
 lost to the Crown (r), it is called an extent in aid (s). 
 
 After the death of the Crown Debtor, lands in the hands of Death of 
 his heir are subject to his debt, whether heirs are named in the 
 debt or not (t), at least if the executor have no assets (u). And 
 under the provisions of Magna Charta, c. 8, the heir may sue 
 the executors in the Court of Exchequer, to indemnify him 
 against the Crown debt (w). The Crown debt, whether by record, 
 or specialty equivalent to record, is preferred in the administra- 
 tion of assets in Equity, whether real or personal, legal or 
 equitable, to all debts due from the Debtor to a subject (x). 
 
 A " diem clausit extremum'' is a special writ of extent, issued " Diem 
 on the death of a Crown Debtor ; so called, because it recites his 
 death. It can only issue for a debt of record, or, if he die 
 indebted by simple contract, for one fovnd by inquisition after 
 his death {y). By it the Sheriff is commanded to inquire, by a 
 
 (0 12 & 13 Vict. c. 106, S.127. (r) Oril. Exch. June 22, 1822. 
 
 (m) Shelford on Bankruptcy (2nd ed.) {s) Mann. Excii. Pr. 8. 
 
 214. (0 Ibid. 39. 
 
 («) Ibid. («) Ibid. 73. 
 
 (o) 8 Jurist (Exch.) 218. {w) Ibid. n. (s). 
 
 {p) 5 &. 6 Vict. c. 116, s. 4; 7 & 8 (j) Wms. Exors. 893, ante, g. 300; 
 
 Vict. c. 96, s. 24. 16 East, 281 ; 4 B. & C. 416 (n). 
 
 iq) Ss. 103, 104. (y) West on Extents, 320.
 
 438 DEBTS DUE TO THE CROWN FROM A SUBJECT. 
 
 jury, when and where the Crown Debtor died, and of what goods 
 and debts he was possessed at the time of his decease, and of 
 what lands he was seised at his death, or at the time the lien 
 accrued (z), (supposing it to be one by specialty or record), 
 and to take and seize them into his hands. 
 
 (2) Mann. Exch. Pr. 15.
 
 ( 439 ) 
 
 CHAPTER II. 
 
 DEBTS DUE TO A SUBJECT FROM THE CROWN. 
 
 In vitd. 
 
 Monstrans de Droit. 
 Pel it ion of Right. 
 23 ^- 24 Fict. c. 34, 
 
 Jfter demise of Crown. 
 40 Geo. 3, c. 88. 
 Privy Purse. 
 
 In almost every case in which the subject has a right against the Debts from 
 Crown, the remedies of monstrans de droit, or traverse of ofBce, /„ ^ud, 
 lie for him ; but if they do not lie, a petition of right is his 
 birthright, and sustainable at Common Law {a). 
 
 A petition seems the only remedy, where the King does not 
 pay a debt, as an annuity or wages due from him (6). 
 
 The petition may be brought in any of the Westminster 
 Courts of Law or Equity, in which the same would have been 
 cognizable, if it was a matter between subject and subject, and 
 be prosecuted according to the procedure of suits and personal 
 actions between subjects. 
 
 The judgment or decree, if in favour of the suppliant, shall be 
 that he is entitled to the relief sought by him, and " relief" is 
 to include restitution of any incorporeal right, or return of lands, 
 or chattels, or a payment of money or damages (c). 
 
 Judgments and decrees for the suppliant shall have the effect 
 of judgments of atnoveas manus, and be certified to the Treasury, 
 or the Treasurer of Her Majesty's household. Judgment of 
 ouster le main, or amoveas manus, or (more fully), quod manus 
 domini regis amoveantur, et possessio restituatur petenti, salvo 
 Jure domini regis, instantly puts the Crown out of possession, so 
 that no interposition of its own officers is needed to transfer, in 
 the case of land, the seisin thereof to the party aggrieved. 
 
 Costs shall be recoverable by and against the Crown, and 
 by and against any other persons parties to the petition (d). The 
 Treasury shall pay the judgment or decree, and the costs 
 
 (a) Chitty Prerog. 341, (c) 1 & 2 Vict. c. 2, ss, 9, 16. 
 
 (6) Com. Dig. Prerog. (D. 78.) (d) Ibid. s. 11, 
 
 F F 4
 
 440 
 
 DEBTS DUE TO A SUBJECT FROM THE CROWN. 
 
 On demise 
 of Crown. 
 
 Privy purse. 
 
 recovered by the suppliant, where the petition relates to any 
 public matter ; and the Treasurer of Her Majesty's household, 
 where it relates to private matter. 
 
 The petitioner may proceed as before the Act, (e) i.e. by petition 
 to the Queen in Parliament, or in Chancery, or in other 
 Courts (/). 
 
 All the personal estate of the Queen and her successors, 
 which shall consist of monies which may be issued, or applied, 
 for the use of her or their privy purse, shall be deemed her 
 and their personal estate and effects, subject to disposition by 
 will, and such will shall be in writing under the sign manual, 
 and all such personal estate shall be liable to debts properly 
 payable out of the Privy purse (^). 
 
 And as personalty is legal assets (A), all Her Majesty's debts 
 would be payable thereout according to their legal priorities (i). 
 
 The sum assigned to Her present Majesty's Privy purse, out of 
 the 385,000/. per annum granted her for life, for the expense of 
 the Civil List {i.e., of the royal household or establishment), is 
 60,000/. per annum (^). 
 
 (e) Ibid. s. 18. 
 
 (/) Com. Dig. Prerog. (D.) 80. 
 
 {g) 39 & 40 Geo. 3, c. 88, s. 10. 
 
 (/«) Ante, p. 272. 
 (i) Ante, p. 300. 
 (A:) 1 & 2 Vict. c. 2.
 
 APPENDIX: 
 
 CONTAINING 
 
 A TABULAR VIEW 
 
 OF ALL THE COURTS IN ENGLAND AND WALES FOR THE 
 
 RECOVERY OF DEBTS.
 
 442 
 
 APPENDIX. 
 
 [A.] ORIGINAL 
 COURTS OF COMMON 
 
 1. Superior 
 (i.) At 
 
 Name. 
 
 Procedure. 
 
 Jurisdiction in Debt. 
 
 Whether of 
 Record. 
 
 I. 
 
 Court of our Lady 
 the Queen. 
 
 The Queen's Bench. 
 
 (Bancum Regis.) 
 
 Regulated principally 
 by the C.L. P. Acts, 
 1852, 1854, and 
 rules in pursuance 
 of them, and by un- 
 written rules, or 
 rules by statute, not 
 inconsistent with 
 the new rules. — 
 (Beggv.Forbes, 23 
 L.J., C. P. 222.) 
 
 Unlimited in amount, unless originally less than 
 40*. (5 Exch. 738), though the cause of action 
 aroseoutof the territorial jurisdiction {i. e. Eng- 
 land, Wales and Berwick-on-Tweed), if the 
 defendant is residing tuitkin it (Cowp. 161). So, 
 though the defendant is residing abroad —Scot- 
 land and Ireland are not foreign countries, quoad 
 hoc — if the cause of action arose, or is in respect 
 of a breach of contract made, within the jurisdic- 
 tion (C. L. P. Act, 1852, s. 18 ; Fife v. Round, 30 
 L. T. 291). The plaintiff need not reside within 
 the jurisdiction or be a British subject, but must 
 give security for costs if, residing permanently 
 abroad. (Arch. Pr. 1328.) 
 
 The jurisdiction is conmrrent with inferior Courts, 
 where they have noexclusivejurisdiction (where 
 that is, see post, Inferior Courts, column "Juris- 
 diction"): exclusive, where they have no con- 
 current or exclusive jurisdiction (Ibid). 
 
 Yes. 
 
 II. 
 
 Court of Common 
 
 Pleas. 
 
 (Commune Bancum.) 
 
 Same as Q. B. 
 
 Same as Q. B. 
 
 Same as 
 Q. B. 
 
 III. 
 
 Court of Exchequer. 
 
 Same as Q. B. 
 
 Same as Q. B. 
 
 Same as 
 Q. B. 
 
 IV. 
 
 Courts of Nisi Prius. 
 
 Same as Q. B. 
 
 Unlimited in amount, if over 40*. to try all issues 
 ' oi fact ripe for trial in Easter or Michaelmas 
 Terms, " unless" the Westminster judges should 
 "before" the day appointed for such trial, 
 come— as they are always sure to do— into the 
 particular county, in the vacation immediately 
 preceding such terms. 
 
 The eight Circuits, on which Serjeants, Q. Cs, 
 and Barristers with precedence, may also act as 
 judges, take place twice a year in cacli county. 
 
 Same as 
 Q. B.
 
 APPENDIX. 
 
 443 
 
 COURTS. 
 LAW ONLY. 
 
 Courts. 
 Westminster. 
 
 Judgments and Rules how 
 enforced. 
 
 Judgments, and Rules 
 having force of judg- 
 ments : 
 Person. 
 
 by ca sa. (p. 52.) 
 by attachment for non- 
 payment of money 
 rule. (p. 53.) 
 0. Personalty in posses- 
 sion, 
 by^/a. (p. 48.) 
 by venditioni ■ exponas. 
 
 (lb.) 
 by elegit. (lb.) 
 Glioses in action. 
 by charging order, (p 
 49.) 
 V. Chattels real and realty 
 by elegit, (p. 50.) 
 
 Actions removed to, 
 
 where Jurisdiction 
 
 concurrent. 
 
 Appeal. 
 
 fore J udges 
 of Exch. and 
 C. P.; thence 
 to House of 
 Lords. 
 
 (i-) I 
 
 From Inferior Ct. ofTo Exchequer 
 
 Record, with a three Chamber be 
 
 years' barrister for 
 
 Judge, by certiorari, 
 
 or ( if defendant is in 
 
 custody of such Ct.) 
 
 by habeas corpus cuvi 
 
 causa, issuable ge- 
 nerally out of Q. 
 
 B., if before issue 
 
 joined, and debt ex- 
 ceed 51. (21 Jac. 1, 
 
 c. 23, ss. 4, 6). 
 
 (ii.) 
 From Inferior Ct., 
 
 whether of Record 
 
 or not, if debt ex 
 
 ceed 101. (8 & 9 Vict. c. 127, s 
 
 21). 
 
 Observations. 
 
 The Bail Court is a branch of this Court 
 founded by 11 Geo. 4 & 1 Will. 4, c. 70. 
 
 Practically £'20 is the minimum for which 
 a creditor sues in Q. B.,as, if he recovers 
 less than that there, he risks the loss of 
 his costs, except in the exceptional cases 
 mentioned in the New County Court 
 Acts (see post, p. 448, column " Juris- 
 diction"'). 
 
 Same as Q. B. 
 
 Same as Q. B. 
 
 To Exchequer 
 Chamber be- 
 fore Judges 
 of Q. B. and 
 Exch.; thence 
 to H. of Lds. 
 
 This Court had always original jurisdic- 
 tion between subject and subject — and 
 not an usurped one as Q. B. & Exch., 
 so that it is styled by Lord Coke " the 
 lock and key of the C. Law" (4 Inst. 99). 
 
 Same as Q. B. 
 
 Same as Q. B. 
 
 To Exchequer 
 Chamber be- 
 fore Judges 
 of Q. B. and 
 C. P. ; thence 
 to H. of Lds. 
 
 This Court consisted (in 1842) of— 
 
 1. A Judicial Side (usurped) having a 
 
 r -^ 1 
 
 (i.) C. Law Court. (ii.) Equity Court, 
 (here set forth.) (abolished by5 Vict, 
 c. 5.) 
 
 2. A Revenue Side (original) having a 
 
 I -^ n 
 
 (i.) C. Law Court (ii.) Equity Court, 
 
 held before 
 Barons. 
 
 the 
 
 not taken away by 
 
 5 Vict. c. 5, (ac- 
 cording to Att.-G. 
 V. Hailing, 15 M. 
 
 6 W. G87), but 
 taken away according to Att.-G. v. Corp. 
 of London, 14 L. J. (Ch.) 305, and, if 
 not taken away, held before Treasurer, 
 Barons, and C. of Exch. 
 
 Judgment on Verdict is 
 enforced as in Q. B. 
 
 For the removal of ac- 
 tions from one county 
 to another, see 
 " Change of Veque," 
 p. 221. The venue 
 may be changed on 
 special grounds even 
 after issue joined 
 
 The appeal is 
 in the form 
 of a new trial 
 (ante, p. 44) 
 granted on 
 motion in the 
 Court where 
 the action is 
 pending. 
 
 The times of the Nisi Prius sittings for 
 London and Middlesex, which are held 
 at the Guildhall and Westminster re- 
 spectively, are fixed by the C. L. P. Act, 
 1854, s. 2, and are held before a C. J. or 
 C. B. (or a Westminster judge at their 
 request) — in Term or out of Term, (C. 
 L. P. Act, 1854, s. 95) except between 
 10th Aug. and 24th Oct
 
 444 
 
 APPENDIX. 
 
 1. Superior 
 (ii.) Not at 
 
 Name of Court. 
 
 Court of Common 
 Pleas of the Coun 
 ty Palatine of Lan- 
 caster. 
 
 Regulated chiefly by 
 4 & 5 Will. 4, c. 62. 
 C.L. P. Acts, 1852, 
 1854 (so far as ap- 
 plicable to it), and 
 rules issued in pur- 
 suanct thereof. 
 
 Jurisdiction in Debt. 
 
 Whether 
 of Record. 
 
 Unlimited in amount ; it is not necessary that the 
 cause of action should arise within the territo- 
 rial jurisdiction (j. e. the county Palatine), or 
 that the plaintiff reside there, but only that 
 the defendant be amenable to the process of the 
 Court, i. e. that his person or property be within 
 it. (Wareing's Pr. of the C. P. of L. p. 14.) 
 
 It seems the jurisdiction is concurrent with the 
 Westminster Courts, and that the Court now 
 possesses no exclusive jurisdiction in debt, 
 (lb.) 
 
 Yes. 
 
 VI. 
 
 Court of Pleas of the Regulated by 2 & 3 Unlimited in amount, though the cause of action 
 County Palatine of Vict. c. 16, and (so arose without the territorial jurisdiction (which 
 Durham and Sad- far as applicable to is between Tyne and Tees), if the defendant be 
 berge. it) by C. L. P. Acts, amenable to the process of the Court, i. e., if 
 
 1852, 1854, and his person or property be within it (Vin. Abr. 
 rules issued in pur- Courts, s. (3) ). It seems the jurisdiction is con- 
 suance. current with the Westminster Courts ; and that 
 
 the Court exercises no exclusive jurisdiction. 
 
 Yes.
 
 APPENDIX. 
 
 445 
 
 Courts — (cont.) 
 Westminster. 
 
 Judgments and Rules how enforced. 
 
 Removed. 
 
 Unremoved. 
 
 Actions how removed. 
 
 From 
 
 (i) Judgmts. ijTo a Westmr. 
 as \Vestmin-| Ct. on special 
 ster judgmts. j grounds by 
 
 within the ju 
 risdiction (1 
 & 2 Vict. c. 
 110, s. 21). 
 (ii) Rules : as 
 Westminster 
 judgments as 
 against lands 
 within theju- 
 risdiction(18 
 & 19 Vict, c, 
 15, s. 2). 
 
 leave of such 
 Ct.or Judge, 
 (Archb. Pr 
 1242.) 
 
 Appeal. 
 
 1. Judgment, 
 (i) On affidavit ofjudg 
 
 ment, and that debtor' 
 person or effects can 
 not be /ounii within the 
 jurisdiction, removable 
 into a Westminster 
 Ct., thenceforth be- 
 coming a Westminster 
 judgment (p. 443), but 
 only as against person 
 and effects. (33 Geo. 3, 
 c. 68, s. 3.) 
 (ii) If debtor has re- 
 moved himself or his 
 goods out of the juris 
 diction, a Westminster 
 Ct. may issue execu- 
 tion, but only as against 
 person or goods. (4 & 
 5 Will. 4, c. 62, s. 31.) 
 
 2. Rules : — If they cannot be enforced, from debtor's 
 non-residence within the jurisdiction, a Westminster 
 Ct. may enforce them wholly as Westminster judg- 
 ments, (lb. s. 32.) 
 
 3. Judgments and money rules of Inferior Courts 
 (within 1 & 2 Vict. c. 110) within the Co. Palatine, 
 are removable into the Lancaster C. Pleas, and ac 
 quire force of Palatine judgment. (lb. s. 22.) 
 
 If the debt do 
 not exceed 
 51. from any 
 (New)Coun- 
 ty Ct. within 
 the jurisdic- 
 tion, by cer- 
 tiorari issued 
 out of the Pa- 
 latine Chan- 
 cery, if the 
 Palatine Jdg. 
 think it de- 
 sirable and 
 the applicant 
 give security 
 (19&20Vict. 
 c. 108, ss.38, 
 86.) 
 
 (i) Judgmts. 
 
 To Q. B. (C 
 L. P. Act 
 1852, s 233) 
 thence to Ex 
 cheqr. Cham- 
 ber before the 
 C. P. and Ex 
 cheqr. judges 
 (page 443) 
 thence to the 
 House of 
 Lords. 
 
 Observations. 
 
 By virtue of a com- 
 mission in pursu- 
 ance of 4 & 5 Will. 
 4, c. 62, s. 24, all the 
 Westminster Judges 
 are judges of this 
 Crt. (3 Dowl. 278.) 
 
 Issues of fact and law 
 are tried at the as- 
 sizes, the former in 
 Court, the latter in 
 Court or at the 
 Judges' chambers. 
 (Wareing, 108.) 
 
 as Westmin- 
 ster judgmts. 
 within theju- 
 risdiction (1 
 & 2 Vict. c. 
 110, s. 21). 
 (ii) Rules: as 
 Westminster 
 judgments as 
 against lands 
 
 (i) Judgments and mo- 
 ney rules — Westmin- 
 ster Court may, on ap- 
 plication of creditor or 
 any one on his behalf, 
 order their removal in- 
 to a Westminster Ct., 
 and they shall thereby 
 acquire force of West- 
 minster judgment, but 
 so as not to bind pur 
 chasers, mortgagees or! within juris- 
 creditors, further than! diction (18 & 
 if unremoved, until the 19 Vict. c. 15, 
 writ is lodged with the s. 2). 
 sheriff. (2 & 3 Vict, c' 
 16, s. 28.) i 
 
 So if debtor's person and effects cannot be found 
 within the jurisdiction — but only against his 
 person and effects. (33 Geo. 3, c. 68, s. 3.) 
 
 (ii) Rules not for money — removable to a 
 Westm. Court, if debtor does not reside within 
 jurisdiction, and thereupon become wholly 
 Westm. judgments. (2 & 3 Vict. c. 16, s. 29.) 
 
 Same as C. P. Same as C. P. 
 
 at Lancaster, at Lancaster. 
 
 Same as C. P 
 at Lancaster 
 
 No commission, ap- 
 pointing all the 
 Westminster judges 
 judges of this Court, 
 seems tohave issued, 
 as in the case of 
 Lancaster.
 
 446 
 
 APPENDIX. 
 
 2. Inferior 
 
 (i.) Stannary 
 
 Name of Court. 
 
 VII. 
 
 Court of the Vice- 
 Warden of the 
 Stannaries. 
 
 Regulated by 16 Car, 
 1, c. 15; 4 & 5 
 Will. 4, c. 42 ; 6 & 
 7 Will. 4, c. 106 
 2 & 3 Vict. c. 58 
 11 & 12 Vict. ( 
 83; 18 & 19 Vict 
 c. 32 ; and rules 
 made by V.- W. ap- 
 proved by a West- 
 minster judge (18 
 & 19 Vict. c. 32, s. 
 23), and any pre- 
 viously existing 
 laws not incon- 
 sistent with such 
 rules (6 & 7 Will. 
 4, c. 106, s. 14). 
 
 Jurisdiction in Debt. 
 
 Extends over Devon and Cornwall (18 & 19 Vict. 
 c. 32, s. 32). Unlimited in amount where one 
 or both parties are miners (i.e.) : 
 
 (i) Where a miner sues one not a miner, for a 
 cause of action arising within the Stannaries, 
 or touching mines or metallic minerals within 
 the Stannaries, or adventures in such inines 
 
 (ii) Where plaintiff not being a miner sues a 
 miner, for any such cause of action as is above 
 described. 
 
 (iii) Where a miner sues a miner, whether the 
 cause of action arises within or without the 
 Stannaries, and whether it relates to such mines 
 or adventures or not (Procedure in Stannaries, 
 Introduction x.) 
 
 The above jurisdiction seems 
 Concurrent with — 
 
 (i) Westminster Courts, where both parties 
 are miners at large \_i.e. not actually 
 employed in working in the mines]. 
 
 (ii) (New) County Courts, where the de 
 fendant is a miner, and the debt not 
 over 50/. (Newton v. Nancarrow, 15 Q. 
 B. 144). 
 
 Exclusive of Westminster Courts, where defend- 
 ant is a privileged miner, i.e., actually employed 
 in the mines (4 Inst. 231). 
 
 Whether 
 of Record. 
 
 Yes.
 
 APPENDIX. 
 
 447 
 
 Courts. 
 
 Court. 
 
 Judgments how enforced. 
 
 Unremoved. 
 
 1. Judgments. 
 
 (i) Whatever amount, 
 where they cannot be 
 conveniently or effec- 
 tually enforced by the 
 process of the Court, 
 or defendant, or his 
 goods, are not in the 
 jurisdiction, a West- 
 minster Court may 
 issue process as on a 
 Westminster judgment 
 (18 & 19 Vict. c. 32, 
 s. 9) ; but in the latter 
 case only against per- 
 son and eifects (19 
 Geo. 3, c. 70), 
 
 (ii) Not exceeding 50/. 
 Creditor may sue out 
 execution and send it 
 (for execution by the 
 High Bailiff) to the 
 clerk of any Co. Court, 
 within the district of 
 which the debtor or his 
 goods are (s. 9). 
 
 2. Money rules. If the 
 Court be one within s. 
 22 of 1 & 2 Vict, c 
 110, they are remov- 
 able under that section 
 (7 Dowl. 616). 
 
 Actions how removed. 
 
 On body 
 goods. 
 
 and 
 
 Where the ju- 
 risdiction is 
 not exclusive 
 — by certio- 
 rari or habeas 
 corpus cum 
 causA to a 
 Westminster 
 Court. 
 
 Appeal. 
 
 Where the 
 cause touches 
 mining cus- 
 toms or the 
 principles of 
 Cost Book 
 partnerships, 
 or the privi- 
 leges of tin- 
 ners, or the 
 effect of 
 
 " setts " or 
 licences to 
 mine, or con- 
 tracts for the 
 transfer of 
 shares ii 
 
 mines, th 
 judge of any 
 County Ct. 
 in which the 
 action 
 brought, may 
 remit it to 
 the V.-W.'s 
 Ct. (18 & 19 
 Vict. c. 32, 
 s. 17). 
 
 If the debt ex- 
 ceed 20/., or 
 there be a 
 question of 
 jurisdiction, 
 or mining 
 custom, — to 
 the Ld.-W. 
 assisted by 
 two assessors, 
 members of 
 theJud.Com. 
 or Chancery 
 or Westmtr. 
 C. L. judges, 
 and thence to 
 theJud.Com. 
 
 Observations. 
 
 May be held by V.- 
 W. at any place 
 within the Stan- 
 
 This is the only Ct. 
 where the validity 
 of tin bounds (a 
 particular property, 
 known only in the 
 Stannaries, and 
 
 deemed a chattel 
 real in Cornwall, 
 but a fee simple in 
 Devon), and the 
 rights in tin mines 
 can be decided 
 (1 C. L. Com. Rep. 
 1832). 
 
 All are miners whilst 
 searching for or 
 working mines of 
 tin, or other metallic 
 minerals, within the 
 Stannaries, (6 & 7 
 Will. 4, c. 106, s. 7,) 
 whether under 
 
 ground or superfi- 
 cial, or in making 
 merchantable the 
 produce thereof, and 
 whether as work- 
 men, labourers, 
 agents or adventu- 
 rers. (Procedure in 
 Stannaries, . Intro- 
 duction, xiii.) 
 
 Five jurors may try 
 small debts causes ; 
 a small debt is one 
 not exceeding the 
 amount Co. Courts 
 are empowered to 
 try. (11 & 12 Vict, 
 c. 83.)
 
 448 
 
 APPENDIX. 
 
 i2. Inferior 
 
 (ii.) New 
 
 Name of Court. 
 
 Procedure. 
 
 Jurisdiction in Debt. 
 
 Whether 
 of Record. 
 
 VIII. 
 
 New County Courts. 
 
 County Court for dis- 
 trict of . 
 
 Regulated by 9 & 10 
 Vict.c. 95; 12 & 13 
 Vict. 0. 101 ; 13 & 
 U Vict. c. 61 ; 15 
 & 16 Vict. C.54; 19 
 & 20 Vict. c. 108; 
 22 & 23 Vict. c. 57 ; 
 and rules made by 
 five County Court 
 Judges and allowed 
 by Lord Chancellor. 
 (19 & 20 Vict. c. 
 108, s. 32.) 
 
 Where the debt is not more than 50/. ; or — by 
 agreement — where it is. 
 
 Concurrent with Westminster Courts, where the 
 debt is 20/. and not 50/. ; or where, being under 
 20/., plaintiff and defendant dwell 20 miles 
 apart, or the cause of action arose out of the 
 district where defendant dwelt or carried on 
 business at the time of action; or where an 
 officer of the Court is a party. 
 
 Exclusive (virtually, on account of liability of 
 plaintiff suing in Westminster Court to costs, 
 even if he succeed), where the debt is not over 
 20/., and plaintiff and defendant dwell within 
 20 miles of each other, and the cause of ac- 
 tion arises within district where defendant 
 dwells or carries on business at time of action ; 
 and where no officer of Court is a party. 
 
 Yes. 
 
 (iii.) London 
 
 
 
 
 Court of 
 
 
 County. 
 
 Name of Court. 
 
 Regulated by 
 
 Record. 
 
 Jurisdiction. 
 
 IX. 
 
 
 
 
 London. Sheriffs' Court. 
 
 15 & 16 Vict. c. 
 
 Yes. 
 
 Up to 50/., or, by agreement. 
 
 
 Ixxvii. (London City 
 
 
 to any amount (s. 4), if the 
 
 
 
 Small Debts Exten- 
 
 
 cause of action arose within 
 
 
 
 sion Act), and 20 & 
 
 
 the City or liberties, or if de- 
 
 
 
 21 Vict. c. clvii. s. 3, 
 
 
 fendant dwelt or carried on 
 
 
 
 whereby the proce- 
 
 
 business, or was employed 
 
 
 
 dure is assimilated 
 
 
 there, at the time of action 
 
 
 
 to that of the new 
 
 
 brought, or within six months 
 
 
 
 County Cts. Rules 
 
 
 before. (15 & 16 Vict. c. 
 
 
 
 may be made by 
 
 
 Ixxvii. s. 39.) 
 
 
 
 Recorder, Common 
 
 
 The above jurisdiction is concur- 
 
 
 
 Serjeant, and Jdgs. 
 
 
 rent with Westminster Courts, 
 
 
 
 of Sheriffs' Court, 
 
 
 if the plaintiff and defendant 
 
 
 
 to be approved by a 
 
 
 dwell more than 20 miles apart, 
 
 
 
 Chief Justice (s. 63): 
 
 
 or an officer of the Court (s. 
 
 
 
 subject thereto the 
 
 
 118) is a party: otherwise it is 
 
 
 
 general principles 
 
 
 exclusive. 
 
 
 
 of practice in Supe- 
 
 
 
 
 
 rior Courts arc to be 
 
 
 
 
 
 observed. (lb.) 
 

 
 APPENDIX. 
 
 449 
 
 Courts — (cont.) 
 Count]/ Courts. 
 
 Judgments how enforced. 
 
 (i) If over 20/. and 
 not within County 
 Lancaster, by cer- 
 tiorari from West- 
 minster Ct., pro- 
 vided defendant 
 has no goods or 
 chattels which can 
 be conveniently 
 taken. (19 & 20 
 Vict. c. 108, s. 49.) 
 
 (ii) If within Co. 
 Palatine of Lan- 
 caster or Durham, 
 removable to the 
 C.P. ofthoseCo.'s 
 (19 & 20 Vict. c. 
 108, s. 86.) 
 
 Unremoved. 
 
 (i) Against goods 
 and chattels with- 
 in the district of 
 the particular Ct. 
 (9 & 10 Vict. c. 
 95, s. Pi), or any 
 other Co. Court 
 (lb. s. 104), or 
 the London She- 
 riffs' Ct. (15& 16 
 Vict. c. Ixvii. s. 
 
 Actions how removed from. 
 
 Appeal. 
 
 Observations. 
 
 If debt exceed 51. — to 
 superior Court, by leave of 
 such Court or a judge there- 
 of. (9 & 10 Vict. c. 95, s. 
 90.) 
 
 Where not exceeding 5^ 
 — by certiorari to a supe- 
 rior Court, if such Court or 
 a judge thereof think it 
 desirable. (19 & 20 Vict, 
 c. 108, s. 38.) 
 
 95.) 
 
 (ii) Debtor may be summoned and examined by any 
 other Co. Ct. (or, if the debt does not exceed 201., by 
 any Small Debts Court, 8 & 9 Vict. c. 127, s. 1), 
 within whose jurisdiction he resides, and, if he 
 gained the credit bv fraud (22 & 23 Vict. c. 57), com- 
 mitted on default for 40 days. (9 & 10 Vict. c. 95, 
 ss. 98, 99: note V. p. 461.) 
 
 Where the 
 debt is be- 
 tween 20/. 
 and 50/., to 
 any Westmr. 
 C. Law Ct., 
 to be heard 
 in term by 
 the judges 
 of that Ct. ; 
 out of term, 
 by two judges 
 sitting as a 
 Ct. of Appeal 
 (15&16Vict. 
 c. 54, s. 2), 
 
 The Courts,which the 
 Co. Ct Acts have 
 generally abolished, 
 were the Courts of 
 Request, founded 
 under various local 
 Acts of Parliament 
 — not the Boro' or 
 City Courts. 
 
 (Sheriffs') Court. 
 
 Judgments how enforced. 
 
 Removed. 
 
 Unremoved. 
 
 Where the debtor or his 
 goods are without the 
 jurisdiction, the H. 
 Bailiff may send the 
 warrant of execution or 
 commitment to Clerk 
 of any New Co. Ct. to 
 be executed by him 
 within his jurisdiction, 
 or (if the debtor or his 
 goods are not within 
 such last-mentioned 
 jurisdiction) to take his 
 body or goods within 
 any county or place 
 in which they may be ; 
 a J. P. for such county 
 or place first backing 
 the warrant, (s. 94.) 
 Qy. whether the judg- 
 ment can be removed 
 into a Westminster Ct. 
 under 1 & 2 Vict. c. 
 110, s. 22. (24 L. J., 
 Exch. 169.) 
 
 (i) Against goods and 
 chattels within city 
 and liberties (15 & 16 
 Vict. c. Ixxvii. s. 34), 
 (except wearing ap- 
 parel and bedding and 
 tools of trade to bl.) 
 including money, bank 
 notes, cheques, bills, 
 notes and specialties, 
 and securities. (lb. s. 
 84.) 
 
 (ii) Judgment credi- 
 tor may obtain a 
 summons against the 
 debtor, and Court may 
 examine, and in de- 
 fault of payment, if he 
 has means, or if fraud 
 appear, commit him for 
 40 days. (ss. 88,89.) 
 
 (iii) Any other Court, 
 within whose jurisdic- 
 tion the debtor resides 
 may summon him, &c., 
 as in (ii) ; if the debt 
 do not exceed 20/. (8 
 & 9 Vict. c. 127, s. 1 
 note V. p. 461). 
 
 Actions 
 removable from. 
 
 If debt over 5/. 
 — into a supe- 
 rior Court of 
 Heed, by leave 
 of such Court, 
 (s. 76, but not 
 otherwise, s. 80) 
 and not into 
 Lord Mayor's 
 Court or Court 
 of Hustings, 
 (lb. s. 77.) 
 
 Appeal lies. 
 
 If between 20/. 
 and 50/., to a 
 superior West- 
 minster Court, 
 two of the 
 puisne judges 
 whereof shall 
 sit for that pur- 
 pose out of 
 term — such ap- 
 peal to be final. 
 (s. 78.) 
 
 Observations. 
 
 The Courts which 
 used to be held se- 
 parately, and were 
 designated as the 
 Poultry Compter, 
 and Giltspur St. 
 Compter, need not 
 be now entitled as 
 of either Compter. 
 (20 & 21 Vict c. 
 clvii. s. 3.) 
 
 The former jurisdic- 
 tion of the Court 
 over debts beyond 
 50/. is now taken 
 away (ib.), but the 
 SherifTs jurisdiction 
 to execute writs of 
 inquiry and try is- 
 sues sent down un- 
 der 3 & 4 Will. 4, 
 c. 42, is preserved 
 (though these are 
 usually tried before 
 the Secondaries). 
 
 G G
 
 450 
 
 APPENDIX. 
 
 (iv.) Old County Courts. 
 
 Name of Court. 
 
 Observations. 
 
 Old County Courts. 
 County Court of 
 
 These Courts are not abolished, but their jurisdiction, beyond the amount to 
 which the New County Courts have jurisdiction, is expressly preserved. (9 
 & 10 Vict. c. 95, s. 4.) Therefore they still have jurisdiction concurrent 
 with Westminster Courts, or (if within a Palatine County,) with the Palatine 
 Courts 
 
 1. In debts beyond 50^, arising within the county, by justicies, a still legal 
 
 though disused writ, obtainable from the Westminster Common 
 Law Courts (Com. Dig. " County" (C.)), empowering the Sheriff to 
 "do justice as might be otherwise done at Westminster." Actions 
 before Sheriff so empowered are removable into a Westminster Court 
 by a writ of pone. (Arch. Pr. 1022.) 
 
 2. In trial of Writs of Inquiry (on interlocutory judgments) to assess 
 
 damages. 
 
 3. In trial of Issues sent down from the Westminster Courts under 3 & 4 
 
 Will. 4, c. 42, s. 17, where the debt is not over 20/. 
 
 (v.) Borough and City Courts. 
 
 For the procedure of these Courts see note I. p. 460. j Judgments how enforced, see note V. p. 461. 
 
 For their jurisdiction, see further, note II. p. 460. I Appeal, see note VI. p. 461. 
 
 How held, see note III. p. 460. Person, when exempt from execution, see note VII. 
 
 Actions how removed, see note IV. p. 461. I p. 461. 
 
 The Courts of those Boroughs and Cities marked * are in the Schedules A. and B. to 5 cj- 6 Will. IV. c. 76. 
 
 (See note I. p. 460.) 
 
 County. 
 
 
 Jurisdiction in Debt. 
 
 Judgments observations. 
 
 
 
 Territorial. 
 
 Amount. 
 
 enforced on 
 
 1, Berkshire. 
 * Abingdon 
 
 Court of Record for 
 borough of. 
 
 Borough of 
 Abingdon. 
 
 Not over 10/. 
 
 Goods. 
 
 • Maidenhead 
 
 Court of Record for Eight miles, 
 town of. 
 
 Not over 20/. Ibid. 
 
 • Wallingford 
 
 Court of Record of 
 Pleas for borough of. 
 
 Borough of 
 Wallingford. 
 
 Unlimited. Body or goods. No action, 
 
 1 (But see note Feb. 1830— 
 VII. p. 461.) 1831. 
 
 2. Brecknockshire. 
 * Brecon 
 
 Boro' Ct. of Brecon. 
 
 Borough of 
 Brecon. 
 
 Ibid. 
 
 Ibid. 
 
 3. Bristol • 
 
 Tolzey, Court of. 
 
 City and Co. 
 of Bristol. 
 
 Ibid. Ibid.
 
 APPENDIX. 
 
 451 
 
 (v.) Borough and City Courts — (cont.) 
 
 County. 
 
 Name of Court. 
 
 Jurisdiction in Debt. 
 
 Judgments 
 enforced on 
 
 
 Territorial. 
 
 Amount. 
 
 
 4. Cambridgeshirk. 
 * Cambridge 
 
 Court of Pleas for 
 town of. 
 
 Town of Cam- 
 bridge. 
 
 Unlimited. 
 
 Body, lands or 
 goods. (But 
 see n. VII.) 
 
 In active ope- 
 ration. 
 
 Ely .. .. 
 
 Court of Pleas for Isle 
 
 of Ely. 
 
 Isle of Ely. 
 
 Ibid. 
 
 Ibid. 
 
 
 5. Carmarthenshire. 
 
 H. M.'s fortnightly 
 Court of the county 
 of the borough of. 
 
 The county of 
 the borough. 
 
 Ibid. 
 
 Ibid. 
 
 
 6. Cheshire. 
 
 * Congleton 
 
 Court of Pleas for 
 borough of. 
 
 Borough of 
 Congleton. 
 
 Ibid. 
 
 Ibid. 
 
 
 7. Chester * 
 
 Portmote Court ofcity 
 and county of. 
 
 City and Co 
 of Chester. 
 
 Ibid. 
 
 Body or 
 goods. (But 
 see n. VII.) 
 
 No action, 
 Feb. 1830— 
 1831. 
 
 
 Prentice Court ofcity 
 and county of. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 
 8. Cornwall. 
 * Falmouth 
 
 Court of Record of 
 our Lady the Queen 
 for town of. 
 
 Town and port 
 of. 
 
 Town of. 
 
 Boro' of Salt- 
 ash and liber- 
 ty of Water 
 Thamer. 
 
 Notexceeding 
 100 marks. 
 
 50i. and under. 
 
 Body, lands 
 and goods. 
 (But see n. 
 VII.) 
 
 For Stannary 
 Courts, see 
 p. 448. 
 
 * Penzance 
 
 Court of Record of. 
 
 Ibid. 
 
 
 Saltash . . 
 
 Court of Record for 
 borough of. 
 
 Unlimited. 
 
 Ibid. 
 
 
 9. Denbighshire. 
 * Denbigh . . 
 
 Borough Court of. 
 
 Within limile 
 of market- 
 place. 
 
 Borough of. 
 
 Under 40s. 
 since Wil- 
 liams V. Ba- 
 got, 3 B. & C. 
 
 772. 
 
 Goods. 
 
 
 10. Derbyshire. 
 
 * Derby .. 
 
 Court of Record for 
 borough of. 
 
 Unlimited if 
 above 40s. 
 
 Body, lands 
 and goods. 
 (But see n. 
 VII.) 
 
 
 11. Devonshire. 
 
 * Barnstaple 
 
 Court of Record for 
 borough of. 
 
 Borough of. 
 
 Unlimited. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 
 G G ^
 
 452 
 
 APPENDIX. 
 
 (v.) Borough and City Courts — (cont.) 
 
 County. 
 
 Name of Court. 
 
 Jurisdiction in Debt. 
 
 Judgments 
 enforced on 
 
 Observations. 
 
 Territorial. 
 
 Amount. 
 
 Devonshire — (con<.) 
 * Bideford , . 
 
 Court of Record of 
 borough of. 
 
 Parish of. 
 
 Unlimited. 
 
 Body and 
 
 goods. (But 
 seen.VIL) 
 
 No action, 
 Feb. 1830— 
 183L 
 
 * Dartmouth 
 (or Clifton Dartmouth 
 Hardness.) 
 
 Court of Queen for 
 borough of. 
 
 Borough of, 
 and parish of 
 Townstal. 
 
 Borough of. 
 
 Borough of. 
 
 Borough of. 
 
 Ibid. 
 
 Body, lands 
 and goods. 
 (But see n. 
 VII.) 
 
 Ibid. 
 
 Okehampton 
 
 Court of Record for 
 borough of. 
 
 Court of our Lady 
 the Queen for boro' 
 of. 
 
 Court of manor of 
 borough of. 
 
 Not exceed- 
 ing 201. 
 
 Lands and 
 goods. 
 
 Ibid. 
 
 * Plymonth 
 
 Unlimited if 
 above 40*. 
 
 Body, lands 
 and goods. 
 (But see n. 
 VII.) 
 
 
 * Totness 
 
 Ibid. 
 
 Ibid. 
 
 No action, 
 Feb. 1830— 
 1831. 
 
 12. Dorsetshire, 
 * Dorchester 
 
 Court of Record of 
 our Lady the Queen 
 for borough of. 
 
 Borough and 
 liberties of. 
 
 Not exceed- 
 ing 40i. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 Ibid. 
 
 • Weymouth 
 and Melcombe Regis. 
 
 Court of Record of 
 borough of. 
 
 Borough of. 
 16 parishes. 
 
 Unlimited. 
 
 Body, lands 
 and goods. 
 (But see n. 
 VII.) 
 
 
 13. Essex. 
 * Colchester 
 
 Foreign Court. 
 
 Court of Record of 
 town of. 
 
 Ibid. 
 
 Ibid. 
 Ibid. 
 
 
 * Saffron Walden .. 
 
 Town and pa- 
 rish of. 
 
 Ibid. 
 
 
 14. Exeter.* 
 
 Provost Court of our 
 Lady the Queen of 
 the city and county 
 of city of. 
 
 City of. 
 
 Ibid. 
 
 Ibid. 
 
 
 15. Glamorgan shire. 
 * Cardiff .. 
 
 Court of Record of 
 town of. 
 
 Liberty of. 
 
 Ibid. 
 
 Ibid. 
 
 
 • Swansea . . 
 
 Court of Pleas of our 
 Lady the Queen of 
 the borough of. 
 
 Court of Record of 
 borough of. 
 
 •• 
 
 Unlimited if 
 over 40s. 
 
 •• 
 
 No action, 
 Feb. 1830- 
 1831. 
 
 16. Gi.o'stersiiire 
 * Tewkesbury 
 
 Borough of. 
 
 Under 50/. 
 
 Body or 
 goods. (But 
 see n. VII.) 

 
 APPENDIX. 
 
 (v.) Borough and City Courts — {cont) 
 
 453 
 
 County. 
 
 Name of Court. 
 
 Jurisdiction in Debt. 
 
 Judgments 
 enforced on 
 
 Observations. 
 
 Territorial. 
 
 Amount. 
 
 17. Hants. 
 
 * Newport (I. W.).. 
 
 Court of Record foi 
 borough of. 
 
 Borough of. 
 
 Unlimited. 
 Ibid. 
 
 Body, goods 
 or land. (But 
 see n. VII.) 
 
 
 • Portsmouth 
 
 Court of Record for 
 borough of. 
 
 Borough of. 
 
 Body and 
 goods. (But 
 see n. VIL) 
 
 
 * Winchester 
 N.B. The Bishop of Win- 
 chester has surrendered 
 to the Crown his Cheney 
 Ct., under 9 & 10 Vict. 
 c. 95, s. 14. 
 
 Court of Record for 
 city of. 
 
 City of. 
 Town of. 
 
 Ibid. 
 
 Up to 40«. 
 
 Unlimited. 
 
 Ibid. 
 Goods. 
 
 
 18. Haverford- 
 west.* 
 
 H. M.'s fortnightly 
 Court for town and 
 county of. 
 
 H. M.'s monthly Ct. 
 
 No action, 
 Feb. 1830— 
 1831. 
 
 
 
 
 19. Herefordshire. 
 * Hereford .. 
 
 Mayor's Ct. of city of. 
 
 City of. 
 
 Ibid. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 Ibid. 
 
 
 * Leominster 
 
 Borough Court of. 
 
 Borough of. 
 
 Not over 100/. 
 
 
 20. Hull (Kingston 
 
 on)* 
 
 H. M.'s Court of 
 Record for town and 
 county of town of. 
 
 Town of. 
 Borough of. 
 
 Unlimited. 
 Under 40*. 
 
 Body, goods 
 or lands. (But 
 see n. VIL) 
 
 In active ope- 
 ration. 
 
 21. HUNTINGDONSH. 
 
 * Godmanchester . . 
 
 Court of Pleas for 
 borough of. 
 
 Goods. 
 
 
 * Huntingdon 
 
 Court of Pleas for 
 borough of. 
 
 Borough of. 
 
 Unlimited. 
 
 Ibid. 
 
 
 22. Kent. 
 * Dover 
 
 (Cinque Port) 
 
 Court of Record of 
 our Lady the Queen 
 for town and port 
 of. 
 
 Town and port 
 and liberties 
 of. 
 
 Town of. 
 
 Ibid, 
 [bid. 
 
 Ibid. 
 
 The other 
 Cinque Pts. are 
 Hythe, Rom- 
 ney, Sandwich 
 and Hastings, 
 Winchelseaand 
 Rye; but of 
 the two former 
 there is no re- 
 turn in C. L. 
 Com. Rep. 1832. 
 
 • Faversham 
 
 Court of Portmote. 
 
 Goods and 
 body. (But 
 see n. VII.) 
 
 ?^o action, 
 Feb. 1830— 
 1831. 
 
 Fordwich 
 
 Court of Record for. 
 
 Town of. 
 
 Under 10^. 
 
 •• 
 
 Ibid.
 
 454 
 
 APPENDIX. 
 
 (v.) Borough and City Courts — {cont.) 
 
 County. 
 
 Name of Court. 
 
 Jurisdiction in Debt. 
 
 Judgments 
 enforced on 
 
 Observations. 
 
 Territorial. 
 
 Amount. 
 
 Kent — (cont.) 
 * Gravesend 
 
 Queen's Ct. of the in- 
 corporated villages 
 of Gravesend and 
 Milton. 
 
 Gravesend 
 
 and Milton. 
 
 Borough of. 
 
 Unlimited. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 
 * Hythe .. 
 (Cinque Port) 
 
 Queen's Court o£ 
 
 
 * Rochester 
 
 Court of Portmote oi 
 city of. 
 
 City of. 
 
 Unlimited 
 over 40*. 
 
 Body or 
 goods. (But 
 see n. VII.) 
 
 No action, 
 Feb. 1830— 
 1831. 
 
 •Sandwich .. 
 (Cinque Port) 
 
 Court of Record for 
 town and port of. 
 
 Town and port 
 of. 
 
 Unlimited. 
 
 Ibid. 
 
 Ibid. 
 
 * Tenterden 
 
 Court of Record for 
 town and hund. of. 
 
 Town and 
 hundred of. 
 
 Ibid. 
 
 Ibid. 
 
 
 23. Lancashire. 
 * Clitheroe.. 
 
 Court of Pleas for 
 borough of. 
 
 Borough of. 
 
 Under 405. 
 or by writ 
 unlimited. 
 
 Body and 
 
 goods (semble 
 lands). (But 
 see n. VII.) 
 
 
 * Lancaster 
 
 Court of Pleas of our 
 Lady the Queen for 
 borough of. 
 
 Borough of. 
 
 Borough of. 
 Borough of. 
 
 Borough of. 
 
 Unlimited. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 
 * Liverpool 
 
 * Preston . . 
 
 Court of Pays-sage of 
 borough of. 
 
 Court of Pleas for 
 borough of. 
 
 Unlimited if 
 over 40*. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 In active ope- 
 ration. 
 
 • Wigan .. 
 
 Court of Pleas for 
 borough of. 
 
 Ibid. 
 
 Ibid. 
 
 
 24. Leicestershire. 
 * Leicester.. 
 
 Court of Record for 
 borough of. 
 
 Borough of. 
 
 Unlimited. 
 
 Body, lands 
 and goods. 
 (But see n. 
 VI L) 
 
 
 • Lichfield . . 
 
 Court of Record of 
 city and county of. 
 
 County of city 
 of. 
 
 Borough of. 
 
 Unlimited if 
 over 40*. 
 
 Unlimited. 
 
 Ibid. 
 Ibid. 
 
 
 25. Lincolnshire. 
 • Boston 
 
 Court of Pleas for 
 borough of. 
 
 
 * Great Grimsby .. 
 
 Foreign Court of. 
 
 Township of 
 G. and Clee, 
 hainlet of 
 VVeelsby. 
 
 Ibid. 
 
 Ibid. 

 
 APPENDIX. 
 
 (v.) Borough and City Courts— {cont.) 
 
 455 
 
 County. 
 
 Name of Court. 
 
 Jurisdiction in Debt. 
 
 Judgments 
 enforced on 
 
 Observations. 
 
 
 Territorial. 
 
 Amount. 
 
 Lincolnshire — {con. 
 * Grantham 
 
 Court for town and 
 borough of. 
 
 Soke of. 
 
 Not exceeding 
 40/. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 - 
 
 * Stamford.. 
 
 Court of Record for 
 
 borough of. 
 
 Borough and 
 liberty of. 
 
 Ibid. 
 
 Ibid. 
 
 
 26. Lincoln* 
 
 i Foreign Court of the 
 city and county ol 
 city of. 
 
 City of. 
 
 Unlimited. 
 
 Ibid. 
 
 
 27. London. 
 
 See Mayor's Court, post, 
 p. 460, and Sheriffs' 
 Court, ante, p. 449. 
 
 
 
 
 
 
 28- MONTGOMERYSH. 
 
 * Welshpool 
 
 Court of Record for 
 borough of. 
 
 Borough of. 
 
 Town and co. 
 of. 
 
 Borough of. 
 
 City and co. 
 of city of. 
 
 Unlimited. 
 
 Goods, 
 
 
 29. Newcastle-on- 
 
 Tyne.* 
 
 Court of Record of 
 our Lady the Queen. 
 
 Ibid. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 In active ope- 
 ration. 
 
 30. Norfolk. 
 * King's Lynn 
 
 Guildhall Court of. 
 
 Unlimited if 
 over 40«. 
 
 Body, lands 
 and goods. 
 ( But see n. 
 VII.) 
 
 
 31. Norwich* 
 
 Court of Guildhall of 
 city of. 
 
 Ibid. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 
 32- Northamptonsh. 
 
 * Northampton 
 
 Court of Pleas of 
 town of. 
 
 Liberty of. 
 City of. 
 
 Unlimited. 
 Ibid. 
 
 Body, lands 
 and goods. 
 ( But see n. 
 VII.) 
 
 Body and 
 goods. (But 
 see n. VIL) 
 
 Largely re- 
 sorted to, in 
 preference to 
 County Ct. 
 
 * Peterborough 
 
 Court of city of boro* 
 of St. Peter. 
 
 
 32a. Northumbrld. 
 * Berwick-on-Tweed 
 
 Court of Pleas of 
 borough of. 
 
 Borough and 
 liberties of. 
 
 Ibid. 
 
 Ibid. 
 
 
 Alnmouth 
 
 Court for manor and 
 borough of. i 
 
 Borough and 
 manor of. 
 
 Under 40s. 
 Ibid. 
 
 Goods. 
 Ibid. 
 
 
 Alnwick , . 
 
 Court for manor and 
 borough of. 
 
 Borough and 
 manor of. 

 
 456 
 
 APPENDIX. 
 
 (v.) Borough and City Courts — (cont.) 
 
 
 
 Jurisdiction in Debt. 
 
 
 
 County. 
 
 Name of Court. 
 
 
 Judgments 
 enforced on 
 
 Observations. 
 
 
 
 
 
 Territorial. 
 
 Amount. 
 
 
 
 33- NOTTINGHAMSH. 
 
 
 
 
 
 
 * Newark-on- Trent. 
 
 Court of Record for 
 borough of. 
 
 Borough of. 
 
 Up to 300;. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 
 34- Nottingham.*.. 
 
 Queen's Court of Re- 
 
 Town and 
 
 Unlimited. 
 
 Body, lands or 
 
 Excluded, by or- 
 
 
 cord of town and 
 
 county of 
 
 
 goods. (But 
 
 der in council, 
 Novemb. 1848, 
 
 
 county of town of. 
 
 town. 
 
 
 see n. VII.) 
 
 where the Co. 
 Court has juris- 
 diction. 
 
 35- Oxfordshire. 
 
 
 
 
 
 
 Oxford . . 
 
 Court of Vice-Chan- 
 
 Exclusive, thro' 
 
 Ibid. 
 
 Body and 
 
 No action, Feb. 
 
 
 cellor of the Univer- 
 
 the kingdom 
 where a mem- 
 
 
 goods. (But 
 see n. VII.) 
 
 1830—1831. By 
 17 & 18 Vict. c. 
 
 
 sity. 
 
 ber or servant 
 
 
 81, s. 45, it is 
 
 
 
 of the Univ. is 
 
 
 
 governed by 
 
 
 
 a party, at least 
 
 
 
 Com. not the 
 
 
 
 when the cause 
 
 
 
 Civil Law. 
 
 
 
 of action arose 
 
 
 
 Three Superior 
 
 
 
 within the U., 
 
 
 
 Court judges 
 
 
 
 and such mem- 
 
 
 
 may frame rules 
 
 
 
 ber or servant 
 
 
 
 for its proce- 
 
 
 
 was then, and 
 
 
 
 dure, which. 
 
 
 
 when the action 
 
 
 
 subject to such 
 
 
 
 was brought, 
 
 
 
 rules, is that of 
 
 
 
 resiant there ; 
 
 
 
 the New Coun. 
 
 
 
 which, if a ser- 
 
 
 
 Courts. 
 
 
 
 vant, he will be 
 
 
 
 
 
 
 presumed to be 
 
 
 
 
 
 
 (Thornton v. 
 
 
 
 
 
 
 Ford, 15 East, 
 
 
 
 
 
 
 634). 
 
 
 
 
 Woodstock 
 
 Le Portmouth 
 
 Borough of. 
 
 Ibid. 
 
 Lands and 
 goods. 
 
 No action, 
 Feb. 1830— 
 
 
 
 
 
 
 1831. 
 
 36- Pembrokeshire. 
 
 
 
 
 
 
 * Tenby .. 
 
 Mayor's Monthly 
 
 Borough of. 
 
 Unlimited if 
 
 Goods and 
 
 Ibid. 
 
 
 Court. 
 
 
 over 40«. 
 
 body, (But 
 see n. VII.) 
 
 
 
 Fortnightly Court of. Borough of. 
 
 Under 40s. 
 
 Goods. 
 
 Ibid. 
 
 37. Poole ., 
 
 Weekly Court of Re- Town and li- 
 
 Unlimited. 
 
 
 
 
 cord for the town 
 
 berty of. 
 
 
 
 
 
 and county of. 
 
 
 
 
 
 38- Kadnorshire. 
 
 
 
 
 
 
 New Radnor .. 
 
 Borough Court of. 
 
 If cause arose 
 within 12 
 townships. 
 
 Up to 40*. 
 
 Ibid. 
 
 
 Rhayader 
 
 Court Baron of the 
 
 Borough of. 
 
 Ibid. 
 
 Ibid. 
 
 
 
 boro' and manor of. 
 
 
 
 
 
 Shropshire. 
 
 
 
 
 Bishop's Castle .. 
 
 Court of Record for 
 borough of. 
 
 Town and bo- 
 rough of. 
 
 Up to 2Q/. 
 
 Ibid. 

 
 APPENDIX. 
 
 (v.) Borough and City Courts — [cont.) 
 
 457 
 
 County. 
 
 Name of Court. 
 
 Jurisdiction in Debt. 
 
 Judgments 
 enforced on 
 
 Observations. 
 
 Territorial. 
 
 Amount. 
 
 Shropshire — {cont.) 
 * Bridgenorth 
 
 Court of Record for 
 town and liberty of. 
 
 Town and li- 
 berty of. 
 
 Unlimited. 
 
 Body, lands or 
 goods. (But 
 see n. VII.) 
 
 No action, 
 Feb. 1830— 
 1831. 
 
 Clun 
 
 Borough court of. 
 
 
 Ibid. 
 
 
 Ibid. 
 
 * Ludlow .. 
 
 Court of Record for 
 town and liberty. 
 
 Town and li- 
 berty of. 
 
 Ibid. 
 
 Body, lands 
 and goods. 
 (But see n. 
 VIL) 
 
 
 * Oswestry . . 
 
 Court of Record of. 
 
 Town and li- 
 berty of. 
 
 Ibid. 
 
 Ibid. 
 
 
 ♦ Shrewsbury 
 
 Court of our Lady the 
 Queen. 
 
 Town and li- 
 berty of. 
 
 Ibid. 
 
 Ibid. 
 
 
 » Wenlock.. 
 
 Court of Record for 
 town and liberty of. 
 
 17 parishes. 
 
 Ibid. 
 
 Ibid. 
 
 
 40- Somersetshire. 
 * Bath 
 
 Court of Record of 
 city of. 
 
 City of. 
 
 Ibid. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 
 * Bridgewater 
 
 Court of Record of 
 parish and boro' of. 
 
 Borough and 
 parish of. 
 
 Ibid. 
 
 Body, lands 
 and goods. 
 (But see n. 
 VIL) 
 
 
 Taunton . . 
 
 Borough Court of. 
 
 Borough of. 
 
 Under 40s. 
 
 Goods. 
 
 
 41- Southampton.* 
 
 Common Court of 
 town of. 
 
 Town and co. 
 of town of. 
 
 Unlimited. 
 
 Body, land or 
 goods. (But 
 see n. VII.) 
 
 Ibid. 
 
 
 42- Staffordshire. 
 * Stafford .. 
 
 Court of Record of 
 borough of. 
 
 Borough of. 
 
 Ibid. 
 
 No action, 
 Feb. 1830— 
 1831. 
 
 * Tamworth 
 
 Court of Record for 
 borough of. 
 
 Borough and 
 Foreign of. 
 
 Ibid. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 
 * Walsall .. 
 
 Court of Record for 
 borough and Foreign 
 of. 
 
 Borough and 
 Foreign of. 
 
 Between 40s. 
 and 20;. 
 
 
 
 43- Suffolk. 
 
 * Ipswich . . . . 
 
 Court of Small Pleas 
 for bororgh of. 
 
 Town, boro' 
 and liberties 
 of. 
 
 Ibid. 
 
 Body, land or 
 goods. ( But 
 see n. VII). 

 
 458 
 
 APPENDIX. 
 
 (v.) Borough and City Courts — {cant.) 
 
 County. 
 
 Name of Court. 
 
 Jurisdiction in Debt. 
 
 Judgments 
 enforced on 
 
 Observations. 
 
 Territorial. 
 
 Amount. 
 
 44. Surrey. 
 * Kingston-on- 
 Thames. 
 
 Court of Record for 
 town of. 
 
 Hundreds of 
 Kingston, 
 Elm bridge, 
 Copthorme, 
 Effingham. 
 
 Parishes of 
 St. John, 
 St. Olave, 
 St. Thomas, 
 St. George, 
 St. Saviour 
 (except Clink 
 liberty). 
 
 Unlimited. 
 Ibid. 
 
 Ibid. 
 
 Body, lands 
 or goods. 
 (But see n. 
 VII.) 
 
 
 Southwark 
 
 Court of Record of 
 our Lady the Queen 
 of the liberties of the 
 Corporation of Lon- 
 don of their town 
 and boro' of South- 
 wark. 
 
 Ibid. 
 
 Body and 
 goods. (But 
 see n. VII.) 
 
 
 45- Sussex. 
 * Chichester 
 
 H. M.'s Ct.of Record 
 of the city of. 
 
 Liberties of 
 city of. 
 
 
 * Hastings 
 (Cinque Port.) 
 
 Ct. of Record of Q. 
 for town and port of. 
 
 Town, port 
 and liberties 
 of. 
 
 Borough of. 
 
 Ibid. 
 Under 40s. 
 
 Body, lands 
 and goods. 
 (But see n. 
 VII.) 
 
 
 Horsham . . 
 
 Portmote Court of. 
 
 Goods. 
 
 
 * Rye 
 (Cinque Port.) 
 
 Ct. of Record of Q. 
 for town of. 
 
 Town and li- 
 berty of. 
 
 Town and li- 
 berty of. 
 
 Unlimited. 
 
 Ibid. 
 
 
 Winchelsea 
 (Cinque Port.) 
 
 Ct. of Record of Q. 
 for the town and 
 liberty of. 
 
 Ibid. 
 
 Ibid. 
 
 
 46- Warwickshire. 
 * Coventry.. 
 
 Court of Record for 
 city of. 
 
 City of. 
 
 Ibid. 
 
 Body, lands 
 and goods. 
 (But see n. 
 VII.) 
 
 
 * Warwick . . 
 
 Court of Record for 
 borough of. 
 
 Borough of. 
 
 Not exceed- 
 ing 40a-. 
 
 Goods. 
 
 
 47- Westmoreland. 
 • Kirby-in-Kendal . 
 
 Court of Record of 
 Pleas for the boro'of 
 
 Borough of. 
 
 From 40s. to 
 40/. 
 
 Not exceed- 
 ing 40s. 
 
 
 
 48- Wiltshire. 
 Cricklade 
 
 Court of the manor of 
 the borough and 
 hundred of. 
 
 Manor, bo- 
 rough and 
 hundred. 
 
 Goods. 

 
 APPENDIX. 
 
 (v.) Borough and City Courts — (cont.) 
 
 459 
 
 County. 
 
 Name of Court. 
 
 Jurisdiction in Debt. 
 
 Judgments 
 enforced on 
 
 Observations. 
 
 Territorial. 
 
 Amount. 
 
 Wiltshire— (con^) 
 • Devizes . . 
 
 Court of Record for 
 borough of. 
 
 Borough of. 
 
 40s. to 40/. 
 
 Body, goods 
 and land. 
 (But see n. 
 VII.) 
 
 No action, 
 Feb. 18.30— 
 1831. 
 
 • Marlborough 
 
 Queen's Court of 
 borough and town 
 of. 
 
 Borough of, if 
 both parties 
 reside within 
 it. 
 
 Unlimited. 
 
 Body and 
 goods. (But 
 seen. VII.) 
 
 
 * New Sarum 
 
 Court of Record of 
 Pleas of the Bishop. 
 
 City of. 
 
 Ibid. 
 
 Ibid. 
 
 
 49- Worcestershire 
 * Droitwich 
 (otherwise Wych.) 
 
 Queen's Ct. of Pleas 
 for borough of. 
 
 Borough of. 
 
 Borough of. 
 City of. 
 
 Under 10/. 
 
 Not exceed- 
 ing 100/. 
 
 Unlimited. 
 Ibid. 
 
 Body, goods 
 and land. 
 (But see n. 
 VII.) 
 
 
 * Evesham.. 
 
 Borough Ct. of Re- 
 cord. 
 
 Ibid. 
 
 
 50- Worcester.* 
 
 City Ct. of Pleas for. 
 
 Ibid. 
 
 
 61- Yorkshire. 
 * Beverley . . 
 
 Beverley Court of 
 Record. 
 
 Town and li- 
 berties of 
 
 Ibid. 
 
 
 * Doncaster 
 
 Court of Pleas of 
 Mayor and Recorder 
 of. 
 
 Township of 
 D. and four 
 others. 
 
 Ibid. 
 
 Ibid. 
 
 
 KnaresborC 
 
 Court of Record for 
 borough of. 
 
 Borough and 
 township of. 
 
 Ibid. 
 
 Body and 
 goods. (But 
 seen. VII.) 
 
 
 * Pontefract 
 
 Burgess and Foreign 
 Court of. 
 
 Borough of. 
 
 Ibid. 
 
 Body, lands 
 and goods. 
 (But see n. 
 VH.) 
 
 
 • Ripon 
 
 Canon Fee Court of. 
 
 Town and pa- 
 rish of. 
 
 Ibid. 
 
 Ibid. 
 
 No action, 
 Feb. 1830— 
 1831. 
 
 
 Court Military of. 
 
 Liberty of 
 Ripon and 26 
 townships. 
 
 Ibid. 
 
 Ibid. 
 
 
 * Scarboro'.. 
 
 Court of Pleas for 
 borough of. 
 
 Borough and 
 parish of. 
 
 Ibid. 
 
 Ibid. 
 
 
 52. York 
 
 Court of Pleas of our 
 Lady the Queen of 
 her city of. 
 
 City of York 
 and Ainsty. 
 
 Ibid. 
 
 Ibid. 
 
 Business in- 
 creased of 
 late, notwith- 
 standing Co. 
 Court.
 
 460 
 
 APPENDIX. 
 
 (v.) Borough and 
 
 County. 
 
 Name of Court. 
 
 Procedure. 
 
 Whether of 
 Record. 
 
 Jurisdiction. 
 
 London. 
 
 The Court of our 
 
 Regulated by 20 & 
 
 Yes. 
 
 Unlimited in amount, and con- 
 
 
 Lady the Queen, 
 
 21 Vict. c. clvii. and 
 
 (Pulling's 
 
 current with Westminster 
 
 
 held before the Lord 
 
 rules in pursuance 
 
 Customs, 
 
 Courts, where cause of action 
 
 
 Mayor and Alder- 
 
 thereof, allowed by 
 
 177.) 
 
 arose within the city or liber- 
 
 
 men in the Cham- three Superior Ct. 
 
 
 ties, whether the plaintiff or 
 
 
 bar of the Guildhall, Judges (s. 45), and 
 
 
 defendant reside in the city 
 
 
 in the city of. any Acts for amend- 
 
 
 or not (2 Camp. 21). Where 
 
 
 ment of the law di- 
 
 
 debt does not exceed 50L, if 
 
 
 
 rected by Q. in 
 
 
 the defendant or one of the 
 
 
 
 Council to be ap- 
 
 
 defendants dwelt or carried on 
 
 
 
 plied to this Court 
 
 
 business in the city or liber- 
 
 
 
 (s. 46). 
 
 
 ties when the action was 
 brought, or within six months 
 previously, or if the cause 
 of action arose within the 
 . city (20 & 21 Vict. c. clvii. s. 
 12), he cannot object to the 
 jurisdiction, which seems con- 
 current in such a case with the 
 Sheriffs' (London) Court. 
 (Ante, p. 448.) 
 
 Note L — Procedure of Borough and City Courts. 
 
 If the Borough or City be one named in the Schedules A. or B. to 5 & 6 Will. 4, c. 76 — (i.e., 
 marked in the above list *) — the Judge of the Court may make rules regulating the practice thereof, to 
 be confirmed by three superior Common Law Judges (2 & 3 Vict. c. 27, s. ] ). The rules of the Ports- 
 mouth, founded on those of the Wells, Court, and set forth at length in the Appendix to Mr. Raw- 
 linson's Mun, Corp. Act, are the model of the rules of all the other Courts. 
 
 Note H. — Jurisdiction. 
 
 The New County Courts have not abolished these Courts {ante, p. 449), but Courts of Request 
 established by modern Acts. Where any Borough, having by charter or custom a Civil Court of Record 
 not regulated by any Local Act, and having (on the 9th Sept. 1835) for a Judge or Assessor a five years' 
 Barrister, had not then jurisdiction to try actions of debt, covenant, or assumpsit, whether the debt be 
 by simple contract or specialty, it may try it now, provided the debt does not exceed 20Z. (5 & 6 Will. 4, 
 c. 70, s. 118). 
 
 The jurisdiction of the Court may, on the joint petition of the Justices in Quarter Sessions and 
 Borough, be enlarged territorially by the Queen in Council (7 Will. 4 & 1 Vict. c. 78, s. 35); or may, on 
 the petition of the Council of the Borough, or a majority of the ratepayers, be similarly excluded 
 throughout the district of the New County Court (15 & 16 Vict. c. 54, s. 7). 
 
 The jurisdiction, if over 40*., seems concurrent with the Westminster Courts, or if the Court be 
 within a Palatine County, with the Palatine Court. To found a jurisdiction, the residence of the 
 defendant within the territorial jurisdiction seems immaterial, so long as the debt was contracted within it. 
 
 Note 111. — How held. 
 
 If the Court be one not regulated by any Local Act, and not having, on 9th Sept. 1835, a five 
 
 years' Barrister for Judge — held before the Recorder, or his deputy appointed under his hand and seal 
 
 (6 & 7 Will. 4, c. 105, s. 9), four times at least every year (2 & 3 Vict. c. 27, s. 2). If the Court has not 
 
 a Barrister or Attorney as Judge, the Bankruptcy Commissioners (now the Insolvent Debtors' Court and
 
 appe:sDix. 
 
 461 
 
 City Courts — {cont.) 
 
 Judgments how enforced. 
 
 Unremoved. 
 
 Upon the writ of ex- 
 ecution on any judg- 
 ment or rule for 
 payment of money, 
 costs, &c., being 
 sealed by the sealer 
 of writs of any supe- 
 rior Court, and a 
 pracipe being lodged 
 with him, and an 
 affidavit verifying 
 the judgment, and 
 that it remains un- 
 satisfied, writ, judg- 
 ment and rule shall 
 have effect of supe- 
 rior Court judgment, 
 but shall not affect 
 creditors, purchasers 
 or mortgagees, fur- 
 ther than it would 
 if unremoved, until 
 writ is placed in 
 Sheriff^s hands, (s. 
 48.) 
 
 (i) On body or 
 goods. 
 
 (ii) Court may 
 summon debtor, 
 if debt does not 
 exceed 201., and 
 examine him, and 
 in default of pay 
 ment commit him 
 for forty days, (s 
 36.) 
 
 (iii) Any other Ct, 
 
 within 8 & 9 Vict, 
 c. 127, in whose 
 jurisdiction he is, 
 may summon him, 
 &c., in the same 
 way, if the debt 
 does not exceed 
 20/. (8 & 9 Vict. 
 c. 127, s. 1, see 
 note V. below. 
 
 Actions removable 
 ftom. 
 
 Appeal. 
 
 (i) Debt not exceed 
 ing 50/., action not 
 removable except by 
 Judge's order, or de 
 fendant enter into 
 recognizances, or a 
 Superior Ct. Judge 
 order the removal 
 by certiorari, (s. 16.) 
 
 (ii) Whateveramount 
 the debt is, not re- 
 movable unless the 
 Superior Ct. Judge 
 give leave, (s. 19.) 
 
 (iii) No cause remov- 
 able except by cer- 
 tiorari or order of 
 Superior Ct. Judge 
 (s. 52.) 
 
 Observations. 
 
 (i) If debt ex- Held before the Re- 
 cced 20/. and corder or Common 
 either party is Serjeant. (20 & 21 
 dissatisfied with Vict. c. clvii. s. 43.) 
 the direction of For Equity Court of 
 the Judge in Lord Mayor, see post, 
 point of law, he p. 484. 
 may appeal to A foreign attachment, 
 a superior Ct., which is in the nature 
 two of the of an action, is this, — • 
 puisnejudgesor where plaintiff sur- 
 barons where- misesthatanotherper- 
 of shall sit out son within the city is 
 of term for that debtor to the defndt. in 
 purpose, (s. 8.) any sum, he shall have 
 Such appeal garnishment against 
 final. (lb.) him, to warn him to 
 (ii) For all mat- come in and answer 
 ters of error, whether he be indebt- 
 Error lies to ed ; andif he comeand 
 Exch. Chamber, docs not deny, it shall 
 not to the Court be attached inhishands. 
 ofSt.Martin-le- (Locke on Foreign At- 
 Grand. (s. 84.) tachment, p. 2.) An 
 attachment only lies, 
 where the defendant could sue the garnishee 
 in this or a superior Common Law Court. 
 Debts on bonds and simple contract debts 
 not due may be attached, and goods within the 
 jurisdiction, though execution will not issue 
 till they are due ; but not rent, nor debts of 
 Record, nor any trust property. 
 
 New County Court Registrars) may, with the consent of a Secretary of State, appoint a seven years' 
 practising IJarrister, or ten years' practising Westminster or Lancaster Attorney to be the assessor 
 (7 & 8 Vict. c. m, s. 72). 
 
 Note IV. — Removeahility of Actions, 
 
 Actions may, where the jurisdiction of the Court is not exclusive (see note II .), and the debt exceeds 
 10/. (8 & 9 Vict. c. 127, s. 21), or even 5/., if it be a Ct. of Record (with a three years' Barrister for 
 Judge), and issue has not been joined (21 Jac. 1, c. 23, ss. 4, 6), be removed (by the defendant) to any 
 Westm. Ct., or the C. P. at Lancr., by certiorari, or (if he is in custody), by habeas corpus. (Archb. 
 Pr. 1241.) 
 
 Note V. — Judgments how enforced. 
 
 If on 16th August, 1838, a seven years' Barrister was Judge, assessor, or assistant, the judg- 
 ment may be removed to Westminster, and be enforced as a Westminster Judgment (s. 22 of 1 & 2 
 Vict. c. 110), and so (but only as against person and goods) on affidavit of the judgment, and that 
 defendant's person and effects cannot be found within the (local) jiu-isdiction (19 Geo. 3, c, 70, s. 4). 
 
 If the judgment do not exceed 20/., whether it be a judgment of the Court itself, or some other 
 competent Court, if the Judge be a barrister or pleader, or ten years' Westminster Attorney, and the 
 debtor reside within the district of the Borough Court, he may be summoned before it, examined, and 
 if he appear guilty of fraud committed (8 & 9 Vict. c. 127, s. 1). 
 
 Note W.— Appeal. 
 For error in fact or law, an appeal lies by writ of error, notwithstanding C. L. P. Act, 1852, s. 148, 
 abolishing writs of error, to Q. B. (Archb. Pr. 506); thence to Exchequer Chamber; thence to House of 
 Lords (11 Geo. 4 & 1 Will. 4, c. 70, s. 8). 
 
 Note VII. — Person, tvhen erempt from Execution. 
 The debtor's person shall not be taken in execution if there be no fraud, if the judgment debt, exclu- 
 sive of costs, does not exceed 20/. (7 & 8 Vict. c. 96, s. 57).
 
 462 
 
 APPENDIX. 
 
 (vi.) Hundred and Manor (J,, e. Court Baron*) Courts. 
 
 For the jurisdiction of these Courts, see n. I. 
 
 p. 472. 
 For their surrender, see n. II. p. 472. 
 For their procedure, see n. III. p. 472. 
 
 For the appeal from them, see n. IV. p. 473. 
 For taking the debtor's person in execution, see 
 
 n. V. p. 473. 
 For the removal of actions, see n. VI. p. 473. 
 
 * Tlte Court Baron here treated of is the Court of the freeholders of the manor, who are the jury, the steward 
 being the judge. The Court Baron of the copyholders has jurisdiction in matters relating to their tenures only. 
 
 Courts marked thus f are Courts of Record. 
 
 Name of 
 
 Jurisdiction in Debt. 
 
 Judgments 
 enforced on 
 
 Observations. 
 
 County. 
 
 Court. 
 
 1. Carmarthensh. 
 ■ Carnwallon .. 
 
 Court Baron for the 
 Cornmote of. 
 
 Not exceeding 40*. if cause 
 of action arose within the 
 parishes of Llanelly, Lla- 
 non, Llangenneck and Lla- 
 nedy. 
 
 Goods. 
 
 Held monthly 
 in 1858. 
 
 Iscennen 
 
 Court Baron for the 
 Cornmote of. 
 
 Not exceeding 40«. if cause 
 of action arose within the 
 parishes of Llanarthney, 
 Llandarrog, Llandybie, 
 Llanfihangel, Aberbythick, 
 Bettws, Llandilo, Iscennen, 
 and part of Llangathen. 
 
 Ibid. 
 
 
 Kidwelly 
 
 Court Baron for the 
 Cornmote of. 
 
 Not exceeding 40«. within 
 the parishes of Kidwelly, 
 Pembrey, Llandefeilog, 
 Llangendeime, Llangem- 
 nor and St. Ishmael. 
 
 Ibid. 
 
 
 Perfedd, Gwinfe and 
 Vabon. 
 
 Court Baron of the 
 Lordship or Corn- 
 mote of. 
 
 Under 40s. if cause of action 
 arose within the parishes 
 of Llanthvysaint, Mothvey, 
 chief part of Llangadock, 
 part of Lland-in-gad and a 
 hamlet in Llandilofawr. 
 
 Ibid. 
 
 
 2- Cheshire. 
 Macclesfield 
 
 (i-) 
 
 Court of the Liberty 
 
 of the Hundred of.f 
 
 Unlimited, if cause of action 
 arose within the bounds of 
 the Forest of M. (for which 
 see 4 Rep. C. L. Commis. 
 App. I. p. 371, n. (a.)) 
 
 On body and 
 goods. (But 
 see n. V.) 
 
 
 
 (ii.) 
 Court of the Manor 
 and Forest of.f 
 
 Unliniited, if cause of action 
 arose within the Hundred 
 of M. 
 
 Ibid. 

 
 APPENDIX. 
 
 (vi.) Hundred and Manor (i. e. Court Baron) Courts — {cont.) 
 
 463 
 
 Name of 
 
 Jurisdiction in Debt. 
 
 Judgments 
 enforced on 
 
 
 County. 
 
 Court. 
 
 
 Cheshire — {cont.) 
 Over 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if cause of action 
 arose within the townships 
 of Martin and Over, and 
 Swanlow hamlet. 
 
 Unlimited, if cause of action 
 arise within the parishes of 
 Penryn, Manaccan, Glu- 
 vias, Budock, Falmouth 
 town, Mabe, Falmouth, 
 Constantine, Stithians, Per- 
 ran, Mylor (with Flushing). 
 
 Unlimited, if cause of action 
 arose within the Hundred 
 of, including the Scilly Isles. 
 
 Under 4:0s. if cause of action 
 arise within Alston parish, 
 excepting Priorsdale. 
 
 Under 40s. if cause of ac- 
 tion arise within the manors 
 of. 
 
 Under 40s. if cause of action 
 arose within the town of 
 C. and a small adjacent 
 district. 
 
 Goods. 
 
 Body, lands 
 and goods. 
 (But see n. 
 
 V.) 
 
 Body or 
 goods. (But 
 see n. V.) 
 
 Goods. 
 Ibid, 
 
 
 3. Cornwall. 
 
 Penryn, Forrynf . . 
 
 Court of the Manor 
 of. 
 
 
 Penwitht • • 
 
 4. Cumberland. 
 Alston Moor 
 
 Court of the Hun- 
 dred and Liberties 
 of. 
 
 Court Baron of the 
 Commissioners of 
 Greenwich Hospi- 
 tal, Lords of the 
 manors of. 
 
 
 
 Arthurst and Kirk- 
 andrews. 
 
 Court of the manors 
 of. 
 
 
 Cockermouth 
 
 Court Baron of the 
 borough of. 
 
 Ibid. 
 
 
 Derwentwater and 
 
 Castlerigg. 
 
 Court Baron of the 
 Commissioners of 
 Greenwich Hospi- 
 tal, Lords of the 
 manors of. 
 
 Under 40s. if cause of action 
 arise within the manors of 
 C. & D., which include 
 the townships of Keswick, 
 Burns, Wanthwaite, Naddle 
 and Castlerigg. 
 
 Under 40s. if cause of action 
 arise within the district be- 
 tween the rivers Derwent 
 and Cocker. 
 
 Ibid. 
 Ibid. 
 
 
 Derwentfells 
 
 Court Baron of. 
 
 
 Egremont .. 
 
 Court Baron of the 
 borough of. 
 
 Under 40s. if cause of action 
 arise within tlic town of E. 
 and a small adjoining dis- 
 trict. 
 
 Ibid. 

 
 464 APPENDIX. 
 
 (vi.) Hundred and Manor {i. e. Court Baron) Courts — (cont.) 
 
 Name of 
 
 Jurisdiction in Debt. 
 
 Judgments 
 enforced on 
 
 
 County. 
 
 Court. 
 
 
 Cumberland — (cont.) 
 Egremont — {cont.) 
 
 Court Baron for the 
 lordship of. 
 
 Under 40s. if cause of action 
 arise in Workington,White- 
 haven and a surrounding 
 district. 
 
 Goods. 
 Ibid. 
 
 
 Five Towns {cum 
 Eaglesfield). 
 
 Court Baron of the 
 manor of. 
 
 Under 40s. if cause of action 
 arise within several villages 
 west of Cocker, extending 
 S. to Loweswater, W. to 
 Workington. 
 
 
 Penrith 
 
 Court Baron of the Under 40«. if the debt is not 
 
 Honour of Penrith under seal, and the cause 
 
 and Forest of Ingle-' of action arise within the 
 
 wood. 1 Honour, Forest, and other 
 
 manors parcel thereof. 
 
 Ibid. 
 
 
 St. Bees 
 
 Court Baron of the 
 manor of. 
 
 Under 40s. if the debt con- 
 tracted within the manor of 
 
 Ibid. 
 
 
 5- Denbighshire. 
 Denbight • • 
 
 Lordship Court and 
 Court Baron of the 
 Lordship of. 
 
 Unlimited, if contracted 
 within the 4 hundreds con- 
 taining 21 parishes. 
 
 Unlimited, if contracted 
 within the hundred of 
 Ruthin. 
 
 Ibid. 
 
 See 3 Barn. & 
 C.772. 
 
 RuthinI 
 
 Queen's Court for the 
 Lordship of. 
 
 Body, lands 
 and goods. 
 (Butseen.V.) 
 
 
 6- Derbyshire. 
 Appletree ., 
 
 Court of Pleas of our 
 Lady the Queen. 
 
 Under 40s. if contracted 
 within the hundred of. 
 
 Goods. 
 
 
 High Peak 
 (See post, p. 472.) 
 
 
 
 
 
 Scarsdalef . . 
 
 Court for the Manor 
 and boro' of Ches- 
 terfieldand Hundred 
 of Scarsdale. 
 
 Not exceeding 201. if con- 
 tracted within the hundred 
 of Scarsdale. 
 
 Goods. (But 
 see n. V.) 
 
 
 7. Dorsetshire. 
 Gillingham .. 
 
 Court of the Manor Unlimited, if contracted 
 and Forest Manor of. within the manor. 
 
 Goods. 
 
 
 8. Durham. 
 
 Gateshead .. 
 
 Court Baron of the 
 Lord of the Manor 
 of 
 
 Not exceeding 40s. if con- 
 tracted within part of the 
 parish of Holy Island. 
 
 1 
 |Ibid. 
 
 1 
 
 
 Hartlepool .. 
 
 Court Baron of the 
 Mayor and Corpora- 
 tion of. 
 
 Not exceeding 40s. if con- 
 tracted within the borough 
 of. 
 
 Ibid. 

 
 APPENDIX. 
 
 (vi.) Hundred and Manor {i. e. Court Baron) Courts— (cont.) 
 
 465 
 
 County. 
 
 Durham— (ron^) 
 Holy Island 
 
 Stockton 
 
 Winlaton 
 
 Court Baron of the 
 Manor of. 
 
 9- Flintshire. 
 
 Maylor and Overton 
 
 lO- Gloucestersh. 
 Berkeley 
 
 Gloucesterf. 
 
 Henbury 
 
 11. Hampshire. 
 
 Alton and Alton 
 Westbrooke. 
 
 Stockbridge 
 
 12- HUNTINGDONSH. 
 
 Norman Cross 
 
 13- Lancaster. 
 Ainounderness 
 
 Manor Court of. 
 
 Court Baron of the 
 Queen [6 & 7 Will. 
 4, c. 19, s. 1, for- 
 merly of the bishop]. 
 
 Court Baron of the 
 Lords of the Manor 
 of Maylor and Hun- 
 dred of Overton. 
 
 Hundred Court of. 
 
 Court of Pleas of the 
 Honour of. 
 
 Court Baron of the 
 Lords of the Manor 
 and Hundred of. 
 
 Court for the Hun- 
 dred of Alton and 
 Manor of Alton 
 Westbrooke. 
 
 Court Baron for the 
 Borough of. 
 
 Court for the Hun- 
 dred of. 
 
 Jurisdiction in Debt. 
 
 Not exceeding 40s. if con- 
 tracted within part of the 
 parish of. 
 
 Not exceeding 40s. if by 
 contract not under seal and 
 contracted within the bo- 
 rough of Stockton. 
 
 Not exceeding 40s. if con- 
 tracted within the precincts 
 of the manor of. 
 
 Not exceeding 40s. if con- 
 tracted within the hundred 
 of JMaylor. 
 
 Not exceeding 40s. if con 
 tracted within the hundred 
 
 Unlimited, if contracted 
 within a moiety of the 
 honour of. 
 
 Not exceeding 40s. if 
 contracted within 15 
 tithings. 
 
 Under 40s. if contracted 
 within the hundred of 
 Alton. 
 
 Up to 51. in debt by simple 
 contract contracted within 
 27 parishes and places. 
 
 Wapentake Court of 
 the Q. of her Hun- 
 dred of. 
 
 Under 40s. if contracted 
 within the hundred of. 
 
 Judgments 
 how enforced. 
 
 On goods. 
 
 Ibid. 
 
 On lands or 
 goods. 
 
 On goods. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Observations. 
 
 II II
 
 46G APPENDIX. 
 
 (vi.) Hundred and Manor (i. e. Court Baron) Courts — {cont.) 
 
 Name of 
 
 Jurisdiction in Debt. 
 
 Judgments 
 how enforced. 
 
 
 County. 
 
 Court. 
 
 
 Lancaster — {cont.) 
 Blackburn . . 
 
 Court Baron for the 
 Wapentake of. 
 
 Under 40s. if contracted 
 within the wapentake of. 
 
 On goods. 
 
 
 Bowland 
 
 Court Baron for the 
 Wapentake or Li- 
 berty of. 
 
 Under 40s. if contracted 
 within the liberty of. 
 
 Ibid. 
 
 
 Furness .. .. 
 
 Court Baron for the 
 Liberty of. 
 
 Under 40s. if contracted 
 within the liberty of. 
 
 Ibid. 
 
 
 Lonsdale 
 
 Hundred Court of. 
 
 Under 40s. if contracted 
 within the hundred of. 
 
 Ibid. 
 
 
 Manchester 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if contracted 
 within the manor of. 
 
 Ibid. 
 
 
 Rochdale 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if contracted 
 within the parish of. 
 
 Up to bdl. if contracted 
 within the hundred, or, by 
 agreement, to any amount. 
 
 Ibid. 
 
 
 Salfordf . . 
 
 Hundred Court of. 
 
 Ibid. 
 
 Has been 
 greatly ex- 
 tended, and 
 is in active 
 operation. 
 
 Tottington .. 
 
 Court for the Fee of. 
 
 Under 40s. if contracted 
 within the wapentake of. 
 
 Ibid. 
 
 
 14- Leicestershire. 
 Framland . . 
 
 Court of Pleas for the 
 Hundred of. 
 
 Under 40s. if contracted 
 witliin the hundred of, com- 
 prising 45 parishes. 
 
 Ibid. 
 
 
 Goscote, E. & W. . . 
 
 Court of Pleas of the 
 Hundreds of. 
 
 Under 40s. if contracted 
 within the hundreds of. 
 
 Ibid. 
 
 
 Leicester 
 
 Court of Pleas of our 
 Lady the Q., Lady 
 of the Honour of, 
 parcel of the Duchy 
 of Lancaster. 
 
 Under 40s. if contracted 
 within the town and bo- 
 rough of. 
 
 Ibid. 
 
 
 15- Lincolnshire. 
 Epworth 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if contracted 
 within the parishes of Ep- 
 worth, Hasey, Belton and 
 Owston. 
 
 Ibid. 
 
 
 16. MoNTaOMERYSH. 
 
 Arustley 
 
 Baron Court of the 
 Manor of. 
 
 Under 40s. if contracted 
 within 6 parishes specified 
 in 4 Rep. C. C. Commiss. 
 Pt. IL App. L 
 
 Ibid. 

 
 APPENDIX- 
 
 (vi.) Hundred and Manor (i. e. Court Baron) Courts — (cant.) 
 
 467 
 
 Name of 
 
 Jurisdiction in Debt. 
 
 Judgments 
 how enforced. 
 
 
 County. 
 
 Court. 
 
 
 17. Northumberland 
 Alnwick 
 
 Court of the Manor 
 and Barony of. 
 
 Under 40«. if contracted 
 within the barony of. 
 
 On goods. 
 
 All the North- 
 umberland 
 
 Bamburgh .. 
 
 Manor Court of the 
 Castle of. 
 
 Under 40*. if contracted 
 within the castle manor. 
 
 Ibid. 
 
 active opera- 
 tion and use- 
 ful. 
 
 
 Manor Court of the 
 Borough of. 
 
 Under 40s. if contracted Ibid, 
 within the borough manor. 
 
 
 Belford 
 
 Manor Court of. 
 
 Under 40*. if contracted 
 within Belford, Easington 
 and Easington Grange. 
 
 Ibid. 
 
 
 Bellister 
 
 Court Baron for the 
 Manor of. 
 
 Not exceeding 40s. if con- 
 tracted within the manor 
 of. 
 
 On lands or 
 goods. 
 
 
 Bulbeck 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if contracted 
 within Staley, Shotley and 
 parts of Bywell St. Andrew 
 and Bywell St. Peter pa- 
 rishes. 
 
 
 
 Canongate .. 
 
 Manor Court of. 
 
 Under 40s, if contracted 
 within the manor. 
 
 On goods. 
 
 
 Coanwood • . 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if contracted 
 within the precincts of E. 
 Coanwood. 
 
 On lands or 
 goods. 
 
 
 Corbridge . . 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if contracted 
 within Corbridge and part 
 of Delston, Aydon and 
 Thornbrough townships. 
 
 On goods. 
 Ibid. 
 
 
 Ford 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if contracted 
 within the parish of, ex- 
 cept Etal. 
 
 
 Hardeybum 
 
 Court Baron for the 
 Manor of. 
 
 Not exceeding 40s. if con- 
 tracted within the manor 
 precincts. 
 
 On lands or 
 goods. 
 
 
 H H 2
 
 468 APPENDIX. 
 
 (vi.) Hundred and Manor {i. e. Court Baron) Courts — (cant.) 
 
 Name of 
 
 Jurisdiction in Debt. 
 
 Judgments 
 how enforced. 
 
 Observations. 
 
 County. 
 
 Court. 
 
 NoRTHMBRLD — (cont.) 
 
 Lambley 
 
 Court Baron for the 
 Manor of. 
 
 Not exceeding 40s. if con- 
 tracted within the precincts 
 of the manor. 
 
 On lands or 
 goods. 
 
 All the North- 
 umberland 
 Courts are in 
 active opera- 
 tion and use- 
 ful. 
 
 Long Benton 
 
 Court Baron for the 
 Manor of. 
 
 Not exceeding 40s. if con- 
 tracted within the precincts 
 of the manor. 
 
 Ibid. 
 On goods. 
 
 Melkridge & Halton. 
 
 Court for the Manors 
 of. 
 
 Under 40s. if contracted 
 within the manors. 
 
 
 Morpeth 
 
 Court Baron for the 
 Manor and Borough 
 of. 
 
 Under 40s. if contracted 
 within the borough. 
 
 Ibid. 
 Ibid. 
 
 Ibid. 
 Ibid. 
 
 
 Newburn 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if contracted 
 within the townships of 
 Newburn, Newburn Hall, 
 Walbottle, East and West 
 Whorlton and Butterlaw. 
 
 
 Prudhoe 
 
 Court Baron for the 
 Manor and Barony 
 of. 
 
 Under 40s. if within 15 dis- 
 tricts, mentioned in 4th 
 Hep. C. L. Com. Part II. 
 App. 1. 
 
 
 Ridley, Thorngrafton 
 and Henshaw. 
 
 Court for the Manors 
 of. 
 
 Under 40s. if contracted 
 within the manors. 
 
 
 Ridsdale 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if contracted 
 within 20 districts, set out 
 in C. L. Com. Rep. 
 
 Ibid. 
 
 
 Rothbury . . 
 
 Court for the Manor 
 and Barony of. 
 
 Under 40s. if contracted 
 within the barony of R., 
 comprising 42 townships 
 and hamlets. 
 
 Ibid. 
 
 Ibid. 
 Ibid. 
 
 
 Tynemouth 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if contracted 
 within 10 townships, set 
 out in C. L. Com. Rep. 
 
 
 Warkworth . . 
 
 Court for the Manor 
 and Borough of. 
 
 Under 40s. if contracted 
 within the manor and bo- 
 rough. 
 
 
 Wooler 
 
 Court Baron for the 
 Manor of. 
 
 Under 40s. if on contract 
 not under seal, and con- 
 tracted within the estates 
 held of the manor by suit 
 and service. 
 
 Ibid. 
 
 
 Whitfield . . 
 
 Court Baron of the 
 
 Manor of. 
 
 Under 40s. if contracted 
 within the precincts of the 
 manor. 
 
 On lands and 
 goods. 

 
 APPENDIX. 469 
 
 (vi.) Hundred and Manor {i. e. Court Baron) Courts — {cont.) 
 
 Name of 
 
 Jurisdiction in Debt. 
 
 Judgments 
 how enforced. 
 
 
 County. 
 
 Court. 
 
 
 North MB RLD — {cont.) 
 Berwick-upon-Tweed 
 
 (i) 
 Court Baron of the 
 Manor of. 
 
 Not exceeding lO.?. if con- 
 tracted within the manor 
 of Tweedmouthand Spittle. 
 
 On goods. 
 
 All the North- 
 umberland 
 Courts are in 
 active opera- 
 tion and use- 
 ful. 
 
 
 (ii.) 
 Court of the Manor 
 of. 
 
 Not exceeding 40s. if con- 
 tracted within Old and New 
 Berwick townships. 
 
 Ibid. 
 
 18. NOTTINGHAMSH. 
 
 Gringley-on-Hill .. 
 
 Court for the Manor 
 of. 
 
 Up to 40s. if contracted 
 within Gringley, Misterton, 
 Walkeringham and West 
 Stockwith townships. 
 
 Ibid. 
 
 
 Misson . . . . 
 
 * Queen's Court, for her 
 Honor of Peveril, was abo- 
 lished by 12 & 13 Vict. c. 
 101, s. 13. 
 
 Court for the Manor 
 of. 
 
 Up to 40s. if contracted 
 within the township. 
 
 Ibid. 
 
 On body and 
 goods. (But 
 see n. V. p. 
 473.) 
 
 
 19. Shropshire. 
 
 Bradford, N. Cund- 
 wer, Pimhill, Stot- 
 tesdon 
 
 Court for the Hun- 
 dreds of *. 
 
 Not exceeding 20/. if con- 
 tracted within a jurisdic- 
 tion of 30 miles by 16, and 
 see n. II. 
 
 
 20. Somersetshire. 
 Frome Selwood 
 
 Court Leet for the 
 Hundred of. 
 
 Under 40s. if contracted 
 within the hundred. 
 
 •• 
 
 Held yearly. 
 
 Taunton 
 
 Taunton Forum Ct. 
 
 Under 40s. if contracted 
 within the hundred of 
 Taunton Dean, except the 
 limits of the Manor and 
 Borough, comprising 26 
 parishes and hamlets. 
 
 On goods. 
 
 
 
 Court of the Manor 
 of Taunton Dean. 
 
 Under 40s. if contracted 
 within 18 parishes. 
 
 Ibid. 
 
 
 Whitstone . . 
 
 Court for the Hun- 
 dred of. 
 
 Under 40s. if contracted 
 within 13 parishes, or 
 Shepton Mallet. 
 
 Ibid. 
 
 Held yearly.
 
 470 APPENDIX. 
 
 (vi.) Hundred and Manor {i. e. Court Baron) Courts — {cont.) 
 
 Name of 
 
 Jurisdiction in Debt. 
 
 Judgments 
 how enforced. 
 
 Observations. 
 
 County. 
 
 Court. 
 
 21, Staffordshire. 
 Tutburyf .. 
 
 The Hundred Court of 
 Offlow was abolished bj 
 15 ■& 16 Vict. c. 54, s. 40. 
 
 Great Court Baron ol 
 our Lady the Queen 
 for the honor of. 
 
 Under 40s. if contracted 
 within the places in Staf- 
 foidsh., Derbyshire (High 
 Peak included), Notting- 
 hamshire, Warwicksh. anc 
 Leicestersh., mentioned in 
 4th Rep. C. L. Com. Part 
 II. App. 1. 
 
 On goods. 
 
 
 22. Warwickshire. 
 Knighton . . 
 
 Court of the Hun- 
 dred of. 
 
 Under 40^. if contracted 
 within the hundred. 
 
 Ibid. 
 
 • 
 
 23. Wiltshire. 
 Chelworth .. 
 
 Court of the Manor 
 of. 
 
 Not exceeding 40s. if con- 
 tracted within the manor. 
 
 Ibid. 
 
 
 High worth . . 
 
 Borough and Hun- 
 dred Court of Pleas 
 of. 
 
 Under 40s. if contracted 
 within 20 parishes or places 
 in the hundred. 
 
 If contracted within the hun- 
 dred : qu. as to the amount. 
 
 Ibid. 
 
 
 Selkleigh 
 
 Court for the Hun- 
 dred of. 
 
 
 
 24. Yorkshire. 
 Aldborough 
 
 Court Baron of the 
 Manor of. 
 
 Under 40s., qu. where con- 
 tracted. 
 
 On goods. 
 
 
 Allertonshire 
 
 Court Baron of the 
 Wapentake of. 
 
 Under 40s. if contracted 
 within 33 townships. 
 
 Ibid. 
 Ibid. 
 
 
 Bingley 
 
 Court Baron of the 
 Manor of. 
 
 Not exceeding 5/. (17 Geo. 
 3, c. 5) if contracted with- 
 in the township of. 
 
 
 Holderness . . 
 
 Court for the Wapen- 
 take of. 
 
 Under 40s. if contracted 
 within the wapentake. 
 
 Ibid. 
 
 
 Howdenshire 
 
 Ct. Halmot of H. M. 
 formerly of the Bp. 
 of Durham (6 & 7 
 Will. 4, c. 19,8.1) for 
 the Wapentake of. 
 
 Under 40s. if contracted 
 within the Wapentake. 
 
 Ibid. 
 
 
 Knaresboro' 
 
 Court for the Forest 
 of. 
 
 Unlimited over 21 town- 
 ships. 
 
 On body and 
 goods. (But 
 see n. V. p. 
 
 473.) 
 
 
 Keightleyt 
 
 Court Baron for the 
 Manor of. 
 
 Vot exceeding 5/. if con- On goods, 
 tracted within the manor 
 and parish of. 

 
 APPENDIX. 
 
 (vi.) Hundred and Manor (i. e. Court Baron) Courts — {cont.) 
 
 471 
 
 Name of 
 
 County. 
 
 Yorkshire — {cont.) 
 Langbraugh 
 
 Richmond and Rich- 
 mondshire. 
 
 Skipton, alias Clif- 
 ford's Fee. 
 
 StaincliiTe 
 
 Court Baron of the 
 Liberty of. 
 
 Court Baron of the 
 Liberty and Fran- 
 chise. 
 
 Court for the Honor 
 of. 
 
 Court Baron for the 
 Wapentake of. 
 
 Jurisdiction in Debt. 
 
 Under 40s. if contracted 
 within Cleveland. 
 
 Under 40s. if contracted 
 within E. and W. Hang, 
 E. and W. Gilling and 
 Halikeld Wapentakes. 
 
 Judgments 
 how enforced. 
 
 On goods. 
 
 Ibid. 
 
 Under 40s. if contracted Ibid, 
 within 30 townships, all in 
 the district of Craven. 
 
 Not exceeding 40s. if con- 
 tracted within the wapen- 
 take. 
 
 Ibid. 
 
 Observations.
 
 472 
 
 APPENDIX. 
 
 (vi.) Hundred and Manor {i. e. 
 
 Name of 
 
 Procedure. 
 
 Jurisdiction in Debt. 
 
 County. 
 
 Court. 
 
 Derbyshire. 
 High Peak (part of the 
 Duchy of Lancaster). 
 
 Little Barmote Court. 
 
 Regulated by 14 & 
 15 Vict. c. 94, which 
 provides a summary 
 mode of trial by jury 
 (sees. 24'), and rules 
 issued in pursuance 
 thereof, and allowed 
 by the Chancellor of 
 the Duchy of Lan- 
 caster, (s. 56.) 
 
 Unlimited, if contracted within the 
 district of Kingsfield (part of the 
 Hundred of High Peak, and which 
 district consists of the liberties of 
 Castleton, Bradwell, Hucklow, 
 Winster Moniash, Taddington and 
 Upper Haddon), or such other parts 
 of the said Hundred as Her Majesty 
 is entitled, in right of Her Duchy, 
 to mineral duties in. (14 & 15 Vict. 
 c. 94, s. 16.) This jurisdiction is, 
 however, concurrent only with that 
 of any other Court possessing juris- 
 diction, (s. 55.) 
 
 Note I. — Jurisdiction. 
 
 The Queen in Council may contract or enlarge the territorial jurisdiction of any of these Courts, 
 and extend their jurisdiction (in amount) up to 20^ (8 & 9 Vict. c. 127, s. 9), if the Judge be a Barrister, 
 or Pleader, or ten years' practising Westminster Attorney. Up to 40s. the jurisdiction of these Courts 
 seems exclusive. (6 Ed. 1, Stat. Gloucester, c. 8.) 
 
 Note IL — Surrender of Court. 
 
 Lords of any Hundred, Manor, Honor or Liberty, having a right to hold a Court for recovery of 
 debts or demands, may surrender it to Her Majesty, and such Court shall, but only for that purpose, 
 be abolished. (9 & 10 Vict. c. 95, s. 14.) No Order in Council or publication thereof is required. 
 
 Note IIL — Procedure. 
 
 The procedure of the Hundred and Manor Courts is so various, depending, subject to the applica- 
 tion to them of the Common Law Procedure Acts, 1852, 1854, on the particular local customs, that nothing 
 general can be said about it.
 
 APPENDIX. 
 
 473 
 
 Court Baron) Courts — {cont.) 
 
 Judgments how enforced. 
 
 If debtor's person 
 and effects are not 
 to be found with- 
 in the jurisdic- 
 tion, any Westinr. 
 Common Law Ct. 
 may cause the 
 judgment to be 
 removed into it, 
 and it shall then 
 acquire the force 
 of a Westm. judg- 
 ment against de- 
 fendant's person 
 and effects. (19 
 Geo. 3, c. 70, s. 4.) 
 
 Unremoved. 
 
 Actions how 
 removed from. 
 
 On non-paymenti 
 within three days.j 
 execution may is- 
 sue from the Stew-! 
 ardto the Barmas- 
 ter, to sell the 
 debtor's mineral 
 property within 
 the jurisdiction ; 
 and if he has none, 
 the plaintiff may 
 bring an action on 
 the judgment in 
 the County Court 
 of the district, ifl 
 the debt does not 
 exceed 50/., and 
 in a Westminster 
 Court, if it does, 
 (s. 32.) 
 
 Before or after trial 
 either party may 
 remove it to the 
 Q. B., if a fair 
 trial cannot be 
 had, or for any 
 other cause which 
 a Westminster Ct. 
 or Jdg. may think 
 right (s. 29). Sub- 
 ject to this excep- 
 tion, no removal 
 is allowed. (s. 
 52.) 
 
 Whether 
 of Record. 
 
 Yes. 
 (s. 15.) 
 
 To what 
 
 Court 
 
 Appeal lies. 
 
 To Queen's 
 Bench (14- 
 & 15 Vict. 
 c. 94, s. 
 29.) 
 
 Observations. 
 
 The Steward is Judge, 
 and must be a five 
 years' barrister, or 
 seven years' West- 
 minster attorney or 
 solicitor, or 10 years' 
 pleader, appointed 
 by Her Majesty. 
 
 He may hold his 
 Ct. anywhere within 
 the jurisdiction, (ss. 
 3, 6.) 
 
 There is a greater 
 Bannote Court, held 
 before the Steward, 
 at Moniash, but it is 
 not a Court for the 
 recovery of debts, 
 (ss. 6, 7.) 
 
 Note IV. — Appeal from. 
 
 The appeal from these Courts lies to the Queen's Bench (or any other Westminster Court), but as 
 they are, generally, not of Record (3 Blackst. (Steph.) 376) the appeal is by writ, not of error, but of 
 false judgment. Those, however, which have jurisdiction over 40«. are of Record (Scriven, ed. 1846, 
 p. 601), and are marked tims f in the preceding Table. 
 
 Note V. — Taking Body in Execution. 
 
 No person can be taken in execution — where there is no fraud — for mere non-payment of a debt, 
 upon any judgment in any Superior or Inferior Court, in any action for the recovery of any debt, wherein 
 the sum recovered does not exceed 20/. (exclusive of costs). (7 & 8 Vict. c. 96, s. 57.) 
 
 Note VI. — Removability of Actions. 
 
 If the action be for a debt exceeding 10/. — or even 51. if the Court be of Record (with a three 
 years' Barrister for Judge) and issue has not been joined (21 Jac. 1, c. 23, ss. 4, 5) — it is removable, by 
 certiorari, or otherwise, into a Westminster Cominon Law Court, or if the Inferior Court be within the 
 County Palatine of Lancaster, into such Palatine Court, by leave of a Judge of such Westminster or 
 Palatine Court. (8 & 9 Vict. c. 127, s. 21.)
 
 474 
 
 APPENDIX. 
 
 II. COURTS 
 
 1. Superior 
 
 (i.) Westminster 
 
 Name of Court. 
 
 I. 
 
 The Queen's High 
 Court of Chancery 
 (Equity side) com- 
 prising : — 
 
 1. Court of the Lord 
 Chancellor, who may 
 sit with a Common 
 Law Judge ( 14 & 15 
 "Vict. c. 83, ss. 8— 
 11). 
 
 Jurisdiction in Debt. 
 
 Regulated in part by 
 Statute Law and thai 
 New Consolidated Or-j 
 ders in pursuance of 
 it, in part by unwritten 
 customs. The princi- 
 pal Procedure Statutes 
 are the following: (a) 
 
 18 Edw. 3, St. 5. 
 
 17 Rich. 2, c. 6. 
 
 15 Hen. 6, c. 4. 
 
 41 Geo. 3, c. 90. 
 
 5 Geo. 4, c. 111. 
 
 11 Geo. 4 & 1 Will. 4, 
 c. 36. 
 
 2 & 3 Will. 4, c. 33. 
 
 3 & 4 Will. 4, c. 94. 
 
 4 & 5 Will. 4, c. 82. 
 
 3 & 4 Vict. c. 94. 
 
 4 & 5 Vict c. 52. 
 
 6 & 7 Vict. c. 82. 
 8 & 9 Vict. c. 105. 
 
 11 & 12 Vict. c. 10. 
 
 11 & 12 Vict. c. 45. 
 
 12 & 13 Vict. c. 108. 
 
 13 & 14 Vict c. 35. 
 15 & 16 Vict C.80. 
 15 & 16 Vict. c. 86. 
 
 15 & 16 Vict c. 87. 
 
 16 & 17 Victc. 22. 
 
 17 & 18 Vict c. 100. 
 
 18 & 19 Vict c. 134. 
 21 & 22 Vict c. 27. 
 
 Unlimited in amount, whether the contract, in respect of 
 which the equitable right is claimed, was made within 
 the territorial jurisdiction {i. e. England or Wales) or in 
 the dependencies, or in a foreign country, and wliether 
 the defendant or plaintiff are foreigners or British sub- 
 jects, for the Court acts in personam not in rem, (ante, 
 p. 400,) and its primary decree is against the person. 
 The only requisite is that the defendant's person should 
 be amenable to its process (2 Spence Eq. Jur. 7); 
 which, since 2 & 3 Will. 4, c. 33, and 4 & 5 Will. 4, c. 82, 
 and 10 Consolid. Ch. Ord. Rule 7, it may always be, if 
 the Court thinks fit (Whitmore v. Ryan, 4 Hare, 612 ; 
 Lewis V. Baldwin, 11 Beav. 153; Innes v. Mitchell, 
 4 Drew. 146). 
 
 This jurisdiction is either ancillary to, restrictive of, con- 
 current with, or exclusive of. Home Courts, whether of 
 Common Law or Equity, (or Foreign Courts, 11 Beav, 
 154). 
 
 1. Concurrent with Foreign Courts, where it is convenient 
 that proceedings in such Courts should go on, the pen 
 dency of proceedings there being no bar to proceedings 
 here, though the foreign suit involves the very same 
 question (Innes v. Mitchell, 4 Drew. 146 ; S. C. 1 De G. 
 & J. 423). 
 
 2. Concurrent with other (Home) Equity Courts, where 
 they have not an exclusive jurisdiction [where they have 
 not, see post " Inferior Courts"] : exclusive of them, — 
 where they have neither a concurrent or exclusive juris- 
 diction [where they have not. Ibid.] 
 
 3. Ancillary to Foreign or Home Courts, where its process 
 is necessary to give increased efficacy to their Judg- 
 ments (Reimers v. Druce, 23 Beav. 145) ; or to supply 
 the wants of their procedure ; Scotland and Ireland are, 
 quoad hoc, Foreign Countries. 
 
 4. Restrictive of Home Courts (of Law or Equity), or 
 Foreign Courts, where the Judgments of those Courts 
 are erroneous or inequitable, or their procedure or pro- 
 cess is likely to be abused for the purposes of injustice 
 (Lord Cranstoun y. Johnston, 3 Ves. jun. 170; Angus 
 V. Angus, West's Rep. 23), or less advantageous for the 
 discovery of truth (Bushby v. Munday, 5 Madd. 297, 
 307), — the injunction acting against the conscience of 
 
 (a) The remaining 
 statutes affecting the 
 High Court are the fol- 
 lowing, and may be thus 
 classified. 
 
 Official 
 2 & 3 WilL4, c. 111. 
 
 3 & 4 Will. 4, c. 84. 
 5 & 6 Will. 4. cc. 47, 82. 
 5 & 6 Vict. c. 103. 
 
 10 & 11 Vict cc. 60,97. 
 
 11 & 12 Vict cc.l 0,94. 
 
 12 & 13 Vict. c. 109. 
 15 & 16 Vict c. 80. 
 18 & 19 Vict c. 134. 
 23 & 24 Vict, e, !49. 
 
 Financial. 
 
 12 Geo. l,cc. 32, 33. 
 12 Geo. 2, c. 24. 
 
 4 Geo. 3, c. 32. 
 
 5 Geo. 3, c. 28. 
 9 Geo. 3, c. 19. 
 
 32 Geo. 3, c. 42. 
 
 46 Geo. 3, c. 128. 
 46 Geo. 3, c. 129. 
 10 Geo. 4, c. 13. 
 
 2 & 3 Will. 4, c. 122. 
 1 & 2 Vict c. 54. 
 
 3 & 4 Vict c. 34. 
 3 & 4 Vict c. 94. 
 9 & 10 Vict c. 20.
 
 APPENDIX. 
 
 475 
 
 OF EQUITY. 
 
 Courts. 
 Courts. 
 
 Decrees and Orders how enforced. 
 
 1. If for the payment of any sum of 
 money, costs, charges or expenses. 
 
 (i) As against realty or chattels real. 
 
 (a) As Westminster Jtuh^ments (1 
 & 2 Vict. c. 110, s. 18), i.e. by 
 equitable elegit, (ib. s. 20, & 29 
 Consol. Ch. Ord. Rule 3, and 
 ante, p. 59). 
 
 (b) Equitable fi. fa. (if chattels 
 real), or by charge and sale under 
 s. 13 (ante, p. 62). 
 
 (ii) As against choses in action within 
 s. 14 and 3 & 4 Vict. c. 83, 
 by charging order (p. 58). 
 (iii) As against personalty in pos- 
 session. 
 By equitable fi. fa. or venditioni ex- 
 ponas ov elegit (1 & 2 Vict. c. 110, 
 s. 20 ; 29 Consol. Ch. Ord. Rule 3 ), 
 or, if the defendant be a bene 
 ficed clerk, by equitable fi. fa. de 
 bonis eccles. or sequestrari facias 
 (29 Consol. Ch. Ord. Rule 4), 
 
 2. Whether for the payment of any 
 sum of money, costs, &c. or not. 
 
 By the process of " contempt," if 
 defendant has disobeyed a writ of 
 execution, viz.: — 
 (i) If defendant be not aM.P., or 
 not a corporation aggregate, 
 (a) By attachment, by which 
 the Sheriff' is directed to at- 
 tach [i. e. take and keep) his 
 person, and present him to 
 the Court at a time assigned, 
 and (if taken upon the at- 
 tachment) by sequestration, 
 whereby the Sheriff" or plain- 
 tiff"'s nominees are empowered 
 to enter and sequester the 
 realty and personalty in pos- 
 session, or (where they are 
 in the hands of a third party 
 
 Whether 
 of Kecord. 
 
 ' As" of 
 Record, 4 
 Inst. 83 ; 
 of record 
 (Heming 
 V. Swin 
 nerton, 2 
 Phill. 81). 
 
 Suits how 
 removed to. 
 
 By a " certio- 
 rari" bill, if 
 inferiorCourt 
 is incompe- 
 tent to deter- 
 mine it, and 
 the prayer of 
 the bill be 
 confined to 
 that object 
 (Mitford, PI. 
 9J. 
 
 To what Court 
 Appeal lies. 
 
 H. of Lords 
 (14&15 Vic 
 c. 83, s. 11). 
 
 Observations. 
 
 Though now held in 
 Lincoln's Inn, it is 
 still a Westminster Ct. 
 (3 Bl. Steph. 395). 
 The i«?)ar(/ jurisdiction 
 of the Lord C. is per- 
 sonal ; given him as a 
 delegate of the Crown, 
 exercising its personal 
 prerogative, as parens 
 palrice, in Chancery, 
 and not as a Court of 
 Equity (Story Eq. Jur. 
 vol. i. p. 544, n. 4). 
 Debts due to the lu- 
 natic are suable for 
 before the Lord C. in 
 Equity by the Com- 
 mittee (having first ob- 
 tained leave from the 
 Lord C. in Lunacy). 
 Lord C, in Lunacy, may 
 order sale of lunatic's 
 estate and payment of 
 debts, undisputed, due 
 from him (13th Gen. 
 Ord. in Lunacy, Nov. 
 1853, and s. 153 of 
 Lunacy Regulation 
 Act), which are prove- 
 able before a M. in 
 Lunacy. 
 The appeal from a pe- 
 tition in Lunacy lies 
 to the Q. in Council 
 i. e. the Jud. Cora, 
 of the P. C. (Macq. 
 Pr. of H. of Lords, 
 754). An appeal from 
 an order made on bill 
 filed in the Lunacy, 
 lies to the II. of Lords. 
 (Ib.) 
 
 15 & 16 Vict. c. 87. 
 
 16 & 17 Vict. cc. 22, 98. 
 
 Relating to Jurisdiction 
 
 and Judicial. 
 36 Edw. 3, St. 1, C.9. 
 
 17 Rich. 2, c. 6. 
 
 25 Hen. 8, c.21, s. 17. 
 
 31 Hen. 8, c. 1. 
 
 32 Hen. 8, c. 32. 
 53 Geo. 3, c. 24. 
 l&2Vict.c. 110. 
 
 3 & 4 Vict. c. 55. 
 
 4 & 5 Vict. c. 35. 
 
 5 Vict. c. 5. 
 
 5 & 6 Vict c. 69. 
 
 7 & 8 Vict. c. 110. 
 
 7 &8 Vict. c. Ill, S.21. 
 
 8 & 9 Vict. c. 56. 
 
 9 & 10 Vict. c. 101. 
 
 10 & 11 Vict. c. 96. 
 
 11 & 12 Vict. c. 45. 
 
 12 & 13 Vict. c. 74. 
 14 & 15 Vict. c. 4. 
 
 14 & 15 Vict. c. 83. 
 
 19 & 20 Vict. c. 47. 
 
 20 & 21 Vict. c. 14. 
 20 & 21 Vict. c. 49. 
 20 & 21 Vict.c 78. 
 
 20 & 21 Vict.c. 80. 
 
 21 & 22 Vict. c. 27. 
 
 22 & 23 Vict. c. 35. 
 
 23 & 24 Vict. c. 38.
 
 476 
 
 APPENDIX. 
 
 (i.) Westminster 
 
 Name of Court. 
 
 Procedure. 
 
 Jurisdiction in Debt. 
 
 High Court of Chan- 
 cery — [cont.) 
 
 
 the defendant, and not interfering with the independence 
 of those Courts. However, where there is an appeal by 
 Law from the Foreign (Colonial) Court to a Court here 
 other than the Court of Chancery—secus, perhaps where 
 there is not — the Court of Chancery has no jurisdiction 
 to redress errors or irregularities of the Colonial Court 
 (Henderson v. Henderson, 3 Hare, 118). 
 5. Concurrent with Home Courts of Common Law, where 
 an equitable jurisdiction has been given to the latter by 
 statute, this not ousting the High Court of its previous 
 exclusive jurisdiction : although the plaintifFin Equity 
 may bar himself of relief there, by having elected to rest 
 his case at Law (Terrell v. Higgs, 1 De G. & J. 388). 
 
 • 
 
 2. Ct. of Appeal, con- 
 sisting of the Lord 
 Chancellor and one 
 Lord Justice ; or of 
 the two Lords Jus- 
 tices, or of all three 
 together, and con- 
 stituted by 14 & 15 
 Vict. c. 83. 
 
 Same as Lord Chancel- 
 lor's. 
 
 The Court may sit with 
 a Common Law Judge 
 (14 & 15 Vict. c. 83, 
 
 s. 8). 
 
 Same as Lord Chancellor's. 
 
 3. Ct. of the Master 
 of the Rolls ; who 
 may sit with a 
 Chancery Judge (14 
 & 15 Vict. c. 83, 
 s. 8.) 
 
 Same as Lord Chancel- 
 lor's. 
 
 Same as Lord Chancellor's.
 
 APPENDIX, 
 
 477 
 
 Courts — (cont.) 
 
 Decrees and Orders how enforced. 
 
 Whether 
 of Record. 
 
 Suits how 
 removed to. 
 
 To what Court 
 Appeal lies. 
 
 Observations. 
 
 willing to abide by the order 
 of the Court) choscs in action, 
 of defendant, and apply tlie 
 rents and profits, and sell the 
 personalty as Court directs. 
 
 (b) If a non est inventus be re- 
 turned to the attachment, by a 
 commission of sequestration 
 in the first instance, or a Ser- 
 jeant-at-Arms, at plaintift"'s 
 option (29 Consol. Ch. Ord. 
 Rule 3). 
 
 (c) If the plaintiff chooses a S.- 
 at- Arms first, — by a sequestra- 
 tion, on a 7ion inventus by him. 
 
 (ii) If he be a M. P., by seques- 
 tration in the first instance ; if 
 a corporation aggregate, by a 
 distringas with an alias and 
 pluries distringas, and then a 
 sequestration (1 Dan. Ch. Pr. 
 190, 573). 
 
 
 
 
 The Common Law side 
 of the Court (of Chan- 
 cery) has no jurisdic- 
 tion in debt. 
 
 The reason for sending 
 the S.-at-Arms after 
 the ordinary process 
 is, lest there may have 
 been negligence in the 
 ordinary officers ; so 
 the Ct. sends an offi- 
 cer of its own to guard 
 against that risk, and 
 satisfy its conscience. 
 (1 Dan. Ch. Pr.) 
 
 Same as Lord Chancellor's. 
 
 Same as 
 L. C. 
 
 Same as Lord 
 Chancellor's. 
 
 Same as Lord 
 Chancellor's. 
 
 Same as Lord Chancel- 
 lor's. The Lord Chan- 
 cellor's jurisdiction in 
 Lunacy is extended to 
 the Lords Justices, en- 
 trusted with it by a 
 warrant under the sign 
 manual. (15 & 16 
 Vict. c. 87.) ThisCt. 
 though called the Ct. 
 of Appeal, is also an 
 original Court, but has 
 no Common Law side 
 to it. 
 
 Same as Lord Chancellor's. 
 
 Same as 
 L.C. 
 
 Same as Lord 
 Chancellor's. 
 
 To the Court 
 of the Lord 
 Chancellor or 
 to the Court 
 of Appeal 
 in Chancery ; 
 thence to the 
 Ho. of Lords; 
 or (if en- 
 rolled) to the 
 Ho. of Lords 
 immediately. 
 (Ayckb. 
 313.) 
 
 Same as Lord Chancel- 
 lor's, except that the 
 Court has no jurisdic- 
 tion in Lunacy, and no 
 Common Law side.
 
 478 
 
 APPENDIX. 
 
 (i.) Westminster 
 
 Name of Court. 
 
 Procedure. 
 
 Jurisdiction in Debt. 
 
 4. Court of the First 
 V. -Chancellor. 
 
 Same as Lord Chancel- 
 lor's. The V.-C. may 
 sit with a Common 
 Law Judge. (14&15 
 Vict. c. 83, s. 8.) 
 
 Same as Lord Chancellor's. 
 
 5. Court of the Second 
 V.-Chancellor. 
 
 Same as Lord Chancel- 
 lor's. The V.-C. may 
 sit with a Common 
 Law Judge. (14 & 15 
 Vict. c. 83, s. 8.) 
 
 Same as Lord Chancellor's. 
 
 6. Court of the Third 
 V.-Chancellor. 
 
 Same as Lord Chancel- 
 lor's. The V.-C. may 
 sit with a Common 
 Law Judge. (14&1.5 
 Vict. c. 83, s. 8.) 
 
 Same as Lord Chancellor's. 
 
 II. 
 
 Court of the Duchy 
 Chamber of Lan- 
 caster at Westmin- 
 ster. 
 
 The same as that on the 
 Equity side of the 
 High Court [previ- 
 ously to the Equity 
 Improvement Acts], 
 4 Inst. 206; 3 Blackst. 
 (Steph.) 434. 
 
 It has no jurisdiction in respect of the person, as e. g. 
 because the parties dwell within the County Palatine, 
 nor upon the lands of the subject anywhere, but only 
 upon the King's, and his own revenue, and perhaps on 
 bonds and assurances given for his revenue of the Duchy. 
 (5 Vin. Abr. 571.) The High Court has a concurrent 
 jurisdiction in cases of lands, and trusts and equitable 
 matters arising therefrom (Levington v. Woton, 1 Rep. 
 Ch. 28), and in whatever belongs to the jurisdiction of 
 the Duchy (Fleetwood v. Pool, Hardres, 171).
 
 APPENDIX. 
 
 479 
 
 Courts — {cont) 
 
 Decrees and Orders how enforced. 
 
 Whether 
 of Record. 
 
 Suits how 
 removed to. 
 
 To what Court 
 Appeal lies. 
 
 Observations. 
 
 Same as Lord Chancellor's. 
 
 Same as 
 L. C. 
 
 Same as Lord 
 Chancellor's. 
 
 Same as Mas- 
 ter of the 
 Rolls. 
 
 Same as Master of the 
 Rolls. 
 
 This Court was created 
 by 53 Geo. 3, c. 24. 
 
 Same as Lord Chancellor's. 
 
 Same as 
 L.C. 
 
 Same as Lord 
 Chancellor's. 
 
 Same as Mas- 
 ter of the 
 Rolls. 
 
 The Queen was, by 
 .5 Vict. c. 5, empow- 
 ered to appoint a suc- 
 cessor from time to 
 time to the Vice- 
 Chancellor firstly ap- 
 pointed under tliat act 
 (s. 20), but not to the 
 second (s. 21): this 
 power was supplied by 
 14 & 15 Vict. c. 4, to 
 the extent of enabling 
 one successor to the 
 secondly appointed 
 Vice-Chancellor, and 
 by 15 & 16 Vict. c. 80, 
 to the extent of, from 
 time to time, appoint- 
 ing a successor. 
 
 Same as Lord Chancellor's. 
 
 Same as 
 L. C. 
 
 Same as Lord 
 Chancellor's. 
 
 Same as Mas- 
 ter of the 
 Rolls. 
 
 See last observations. 
 
 Semhle, enforced as decrees and orders 
 of High Court. (3 Blackst. (Steph.) 
 437.) 
 
 Not of Re- 
 cord. (3 
 Bl. Steph. 
 437). 
 
 
 
 This Court is not, like 
 the High Court, a 
 mixed Court of Law 
 and Equity, but of 
 Equity only. (4 Inst. 
 206.)
 
 480 
 
 APPENDIX. 
 
 (ii.) Not at 
 
 Name of Court. 
 
 Court of Chancery of 
 the County Pala 
 tine of Lancaster. 
 
 Court of Chancery of 
 the County Pala 
 tine of Durham and 
 Sadberge. 
 
 Regulated by 13 & 14 
 Vict. c. 43, and 17 & 
 18 Vict. C. 82 (and 
 Gen. Ord. in pursu- 
 ance). The Chancel- 
 lor of the Duchy 
 Chamber of Lancaster 
 (who is the same 
 person as the C. of 
 the County Palatine), 
 may, with the con- 
 sent of the V.-C. and 
 a Lord Justice, adopt 
 and modify H. C. of 
 Chancery Orders(13& 
 14 Vict. C.43, S.2, and 
 17 & 18 Vict. c. 82, s. 
 6) ; in default, the pro- 
 cedure is that of the 
 High Court (Winstan- 
 ley on the Ch. of the 
 Co. Pal. of Lan. 19). 
 
 Semhle, same as the 
 High Court before 15 
 & IG Vict. c. 86. 
 
 Jurisdiction in Debt. 
 
 Unlimited in amount. Where both the subject {i.e. the 
 cause) of suit, and the residence of the parties litigant 
 {qu. of all) is within the County Palatine, the jurisdic- 
 tion is exclusive (Winstanley on the Chan, of Lan. 12; 
 Heyward f. Sherington, Cavy, 116). Where both these 
 circumstances do not combine, the jurisdiction of the 
 Court is only concurrent with that of the High Court. 
 
 It is doubtful whether the Acts 2 & 3 Will. 4, c. 33 and 
 4 & 5 Will. 4, c. 82 (for service of process out of the 
 jurisdiction) apply to this Court (Winstanley, 13). 
 
 Unlimited in amount, if either the cause of suit arise 
 (Com. Dig. Franchises, D. 9), or the debtor reside, 
 within the jurisdiction (ib. ), which comprises all places 
 between the Tyne and Tees. The High Court has, 
 however, a concurrent jurisdiction, though the cause of 
 suit arose within the Palatinate, as also it has, where the 
 debtor reside within it, or has lands or goods within it 
 (Com. Dig. Franchises, D. 9). This Court, therefore, 
 would seem to have no exclusive jurisdiction.
 
 APPENDIX. 
 
 481 
 
 Westminster. 
 
 Decrees and Orders how enforced. 
 
 Where plaintiff or 
 defendant reside, 
 or withdraw their 
 ])erson or goods, 
 out of the j urisdic- 
 tion, and when- 
 ever the decree or 
 order cannot be 
 enforced fully by 
 reason of non- 
 residence of the 
 debtor within the 
 jurisdiction, — the 
 High Court may 
 make it a decree 
 or order of its 
 own (13 & 14 
 Vict. c. 43, s. 15j. 
 
 Without removal. 
 
 (i) If for money, 
 
 costs, charges or 
 expenses, and as 
 against all pro- 
 perty of the debtor 
 witliin the juris- 
 diction — 
 By equitable Ji. 
 fa. or elf git (13 
 & 14 Vict. c. 43, 
 ss. 1, 2, 24, 
 and 119th Gen. 
 Palat. Ord. 
 
 June, 1851). 
 (ii) Whether for 
 money, &c., or 
 not, — by attach- 
 ment as a High 
 Court decree or 
 order (see p. 475), 
 and (if party shall 
 be taken on it), 
 by sequestration ; if not, by seques- 
 tration or messenger, or such other 
 process as plaintiff has hitherto been 
 entitled to on a 7ion est inventus 
 (118th Gen. Palat. Ord. June,1851). 
 
 Whether 
 of Record. 
 
 Yes. 
 (SBlackst. 
 (Steph.) 
 437.) 
 
 There seems no 
 statutory provi- 
 sion for the remo- 
 val of its decrees 
 and orders. 
 
 (i) If for money 
 costs, charges, or 
 expenses, as 
 
 against all land 
 and chattels real 
 within the juris- 
 diction — 
 By equitable (??e- 
 git against land 
 (18 & 19 Vict. 
 c. 15, s. 2, and 
 see "Observa- 
 tions.") 
 (ii) Whether for 
 money, &c. or 
 not — 
 By attachment. 
 
 To the High 
 Court on the 
 application 
 of plaintiff, if 
 any person 
 who is a ne- 
 cessary party 
 is out of the 
 iurisdiction 
 (17&18Vict 
 c. 82, s. 8). 
 
 Yes. 
 (SBlackst, 
 (Steph.) 
 (437). 
 
 Suits how 
 removed from. 
 
 To the Chan- 
 cellor of the 
 Duchy and 
 one Ld. Jus- 
 tice, or to the 
 Lds. Justices 
 alone (17 & 
 18 Vict. c. 82, 
 s. 1); thence 
 to the House 
 of Lords (s. 
 3). 
 
 By certiorari 
 into the High 
 Ct. in some 
 cases (Com. 
 Dig. Franch 
 D. 9, n. b). 
 
 To what Court 
 Appeal lies. 
 
 Observations. 
 
 No appeal lies 
 to the Higli 
 Court, but, if 
 at all, to the 
 Queen her 
 self in conn 
 cil, i.e. to the 
 Jud. Com. of 
 P. C. (3 & 4 
 Will 4,c.41: 
 1 Vern. 177 ; 
 Com. Dig. 
 Franch. 9). 
 
 Before the Vics-Chan- 
 cellor of the County 
 Palatine, who holds 
 four sittings a year 
 within the county ; 
 twice at Liverpool, 
 once at Preston, once 
 at Manchester; also 
 at his Chambers in 
 Lincoln's Inn, every 
 Wednesday in term, 
 and during the sittings 
 after term (Winstan- 
 ley, 14). 
 
 The Court has only 
 power to issue writs 
 under s. 20 of 1 & 2 
 Vict. c. 110, available 
 against land (18 & 19 
 Vict. c. 15, s. 2), ergo, 
 cannot issue equitable 
 
 fi. fas. {vide Temple v. 
 Eccles. Com., 3 D. M. 
 & G.) Since 6 & 7 
 Will. 4, c. 19, the 
 Chancellor is appoint^ 
 ed by the Crown. 
 
 I I
 
 482 
 
 APPENDIX. 
 
 2. Inferior 
 
 Note. — The Cinque Ports had their Chancery (Com. Dig. Franchises, F. 2, n. (q), which, however, would 
 
 Lord Warden, who 
 
 Name of Court. 
 
 I. 
 
 Court of the Vice- 
 Warden of the Stan- 
 naries. 
 
 (a) Ordinary juris- 
 diction. 
 
 Procedure, 
 
 (i) Winding up ju- 
 risdiction, 
 (i) Companies with- 
 in Winding-up 
 Acts, 1848, 1849. 
 
 (ii) Companies 
 
 within J. S. Acts, 
 1856, 1857. 
 
 II. 
 
 Court of the Chan- 
 cellor, Masters and 
 Scholars of the 
 University of Cam- 
 bridge. 
 
 Regulated chiefly by 6 
 & 7 Will. 4, c. 106, 
 2 & 3 Vict. c. 58, 
 and 18 & 19 Vict. 
 32, and general orders 
 of Vice- Warden, with 
 consent of a Judge of 
 the High Ct. of Chan 
 eery, or without it, if 
 previously to 18 Vict 
 c. 32, he might make 
 them without it (s. 23). 
 The rules as to neces- 
 sary parties apply to 
 this, as well as to the 
 High Court; and gene 
 rally, the principles of 
 Equity, and to a cer- 
 tain extent the prac- 
 tice in the High Courts, 
 may be referred to as 
 a guide in the admi- 
 nistration of justice in 
 the Stannaries, except 
 where ancient custom 
 has sanctioned a devi- 
 ation from them, or the 
 constitution of the Ct. 
 will not admittheir ap- 
 plication. (Procedure 
 of the Stann., Introd. 
 Notice, p. xxvii.) 
 
 Jurisdiction in Debt. 
 
 Unlimited in amount, if the suit be either — 
 
 (i) To enforce the demands of creditors (by petition) 
 against the purser or principal agent of the adventurers 
 in a mine, and to prevent, by injunction, tlie sale or re 
 moval of machinery and materials, and, if necessary, to 
 decree a sale and distribution pari passu among th 
 creditors generally (18 Vict. c. 32, s. 5). 
 
 (ii) For an account by adventurers infer se (s. 6). 
 
 (iii) By purser or principal agent of the adventurers 
 against an adventurer or his personal representatives, to 
 enforce contribution to calls or the expenses of working 
 a mine, by the sale of his shares (s. 3). 
 
 This jurisdiction seems to be Concurrent with the High 
 Court, and in no case Exclusive oi it. (Times, June 26th, 
 1857.) 
 
 The Court may direct its process to be served out of the 
 jurisdiction, i.e. Devon and Cornwall (s. 7). 
 
 All Companies engaged in working mines within the Stannaries, not registered 
 these Winding-Up Acts ( 11 & 12 Vict. c. 45, s. 2 ) ; and they shall be wound up 
 Court (20 & 21 Vict c. 78, s. 12), a petition to the High Court to wind up be 
 the direction of the High Court. (lb. s. 13.) 
 
 Companies engaged in working mines within the Stannaries need not, as has 
 twenty persons, and carrying on that business after November 3, 1856. But, 
 Warden (19 & 20 Vict. c. 47, s. 60), both where the winding up originates 
 
 According to the Civil 
 Law and without a jury 
 (Canib. Un. Com. Rep. 
 1852-3, p. 5), before 
 the Chancellor (or in 
 his absence the Vice 
 Chancellor), Heads of 
 Colleges being his as 
 sessors (lb. p. 4). 
 
 Unlimited in amount. Concurrent with High Court, if — 
 
 (i) Tlie cause of suit arise within the precincts of the Uni- 
 versity (£. e. within the town or one mile round). 
 
 (ii) Where a master or scholar, or scholar's servant, or 
 public officer of the University, is one of the parties, and 
 was resident there when it arose and when the action 
 was brought. (12 East, 12 ; C. U.C. R., p. 4.) 
 
 Exclusive, when (all) the parties are members of the 
 University. (19 & 20 Vict. c. cxvii. s. 18.)
 
 APPENDIX. 
 
 483 
 
 Courts of Equity. 
 
 seem to have been abolished by 18 & 19 Vict. c. 48, which abolished all the civil jurisdiction of the 
 was the Chancellor. (Ante, p. 225.) 
 
 Decrees and Orders how enforced. 
 
 Where they cannot 
 be " conveniently 
 or effectually" en- 
 forced within the 
 jurisiliction, they 
 may, on the appli- 
 cation of the party 
 entitled to them 
 (with an affidavit 
 and certificate of 
 the decree or or- 
 der), be made, by 
 the High Court or 
 a Judge at Cham- 
 bers, decrees or 
 orders of the High 
 Court and en- 
 forced as such (s. 
 10). 
 
 Without removal. 
 
 (i) If debt be over 
 50/., by equitable 
 fi. fa. or capias (i.e. 
 attachment, see 
 High Court, p. 475 
 and p. 20), to be 
 executed within 
 the jurisdiction, 
 as similarly as 
 possible to the 
 High Court writs 
 (s. iO). 
 (ii) If debt is not 
 over 50/., — in the 
 same manner 
 a Stann. C. Law 
 judgment for not 
 more than 50/. 
 (s. 10). (5eeante, 
 p. 447.) 
 (iii) Whether un 
 der 50/. or not. 
 (o) By attach 
 ment, where 
 they could be 
 so enforced be- 
 fore 18 Vict. c. 
 32 (s. 10). 
 (6) By sale of 
 shares in mines 
 according to 
 custom, (lb.) 
 
 Whether 
 of Record. 
 
 Yes. (6 
 7 Will, 
 c. 106, 
 1, 21.) 
 
 To the High 
 Court, by cer- 
 tiorari, if the 
 Vice-War- 
 den's Court 
 is incompe- 
 tent to deter- 
 mine it. {See 
 High Court, 
 p. 475.) 
 
 Suits how 
 removed from. 
 
 To what Court 
 Appeal lies. 
 
 Observations. 
 
 To the Lord 
 Warden of 
 the Stanna- 
 ries, assisted 
 by two as- 
 sessors, who 
 shall be mem- 
 bers of the 
 Judic. Com- 
 mittee of the 
 Privy Coun- 
 cil, or Judges 
 of the High 
 Court, or of 
 the Westmr. 
 C. Law Cts. ; 
 and thence 
 to the Judic. 
 Committee of 
 the Privy 
 Council (18 
 Vict. c. 32, s. 
 26). 
 
 Suits for specific per- 
 formance of agree- 
 ments for sale of 
 shares ; suits to de- 
 clare " setts" (i. e. 
 leases) void for for- 
 feiture by non-work- 
 ing, and to stop the 
 working by injunction 
 in case of waste or ir- 
 reparable damage, are 
 also entertained in this 
 Court. But it is not 
 competent to it to en- 
 tertain common admi- 
 nistration suits. (Pro- 
 cedure of Stannaries, 
 Introductory Notice, 
 p. xviii.) 
 
 The Court seems un- 
 able to compel disco- 
 very upon oath of de- 
 fendant, (lb.) 
 
 under Joint Stock Acts, 1850, 1857 (as they need not be, 20 & 21 Vict. c. 14, s. 4), are still liable to 
 before the Vice- Warden, unless upon special application or Vice-Warden's certificate to the High 
 expedient : and even then the debts shall be proved, effects sold, ice by the Vice- Warden, under 
 
 been observed above, be registered under Joint Stock Acts, 1856, 1857, though consisting of more than 
 if registered under those Acts, as they may be, tliL-ir compulsory winding up shall be by the V ice- 
 before him, and is sent down to him from the High Court (s. 74). 
 
 Semble, if not with- 
 in s. 1 8 of 1 & 2 
 Vict. c. 110, but 
 if within s. 22, 
 removeable under 
 that section, and 
 then become 
 
 Westm. ones. 
 
 (7DowIing, 610.) 
 
 According to the 
 University laws 
 and customs (i. e. 
 on goods and body 
 if within the ju- 
 risdiction, 4 C. 
 Law Com. Rep. 
 App. Part 11.), or 
 the Stat, of the 
 Realm. 
 
 Yes.(Camb. 
 Uni. Com, 
 Rep. 1852, 
 p. 4.) 
 
 See High Ct., To the Univ 
 p. 475. 
 
 It is remarkable that 
 there is no provision 
 in the Cambridge Uni- 
 versity Act (19 & 20 
 Vict. c. 88) analogous 
 
 Senate, by 
 whom the 
 cause is com- 
 mitted to de- 
 legates of to that in the Oxford 
 their own body, not feweri Act (18 Vict. c. 81), 
 tlian three, nor more thanj converting the Univer- 
 five; and the sentence of sity Court into a Com- 
 the delegates is final. (C.j mon Law one. 
 U. C. R.p. 5.) I 
 
 I I 2
 
 484 
 
 APPENDIX. 
 
 2. Inferior 
 
 Xame of Court. 
 
 III. 
 
 Court of the Com- 
 missary of the Uni- 
 versity of Cam- 
 brido^e. 
 
 IV. 
 
 Court of our Lady 
 the Queen, held be- 
 fore the Lord Mayor 
 and Aldermen in the 
 Chamber of the 
 Guildhall of the 
 City of London. 
 
 New County Courts, 
 (i) Jurisdiction in 
 Chancery Suits. 
 
 (ii) Over Friendly 
 Societies. 
 
 (iii) In Windings 
 up. 
 
 Same as Vice-Chancel- 
 lor's Cambridge Court. 
 
 Jurisdiction in Debt. 
 
 In all causes belonging to the conusance of the Univer- 
 sity, unless one of the parties be a Proctor, Taxor, M.A., 
 or graduate of superior degree. (C. U. C, R. 5.) 
 
 By bill and answer ; 
 pleadings are on nearly 
 similar principles to 
 those of the High Ct. 
 of Chancery ; defend- 
 ant has about six weeks 
 to answer after appear 
 ance ; after issue i; 
 completed, witnesses 
 are examined before 
 the Registrar, who acts 
 as a Master in Chan- 
 cery ; after which the 
 cause is heard formally 
 before the Recorder, 
 who makes the decree. 
 (2 Mun. Com. Rep. 
 127.) 
 
 Unlimited in amount, if the controversy arise within the 
 city or liberties. (Pulling's Customs, 198.) 
 
 The principal heads of its jurisdiction are, — bills for an 
 account, distribution, discovery, and specific perform 
 ance, although it appears to be general, and to com 
 prebend all matters usually cognizable by Courts of 
 Equity, such as bills for the distribution of intestates' 
 effects, and for general relief. The limited amount of 
 business has been attributed to the facility of removal of 
 causes into the High Court. (2 Mun. Com. Rep. 127.) 
 
 The County Court Judges may, under a general order of the Lord Chancellor, 
 any authority belonging to him, which shall be necessary or proper to be done 
 Vict. c. ()5, s. 22.) 
 
 By the Friendly Societies Consolidation Act (18 & 19 Vict. c. 63) all applications 
 rules of which do not prescribe any other mode of settling them, or to enforce 
 within which the place of business of the Society is, who may determine such 
 
 By the Winding-Up Act, 1848 (s. 123), the County Court Judges are appointed 
 to Lord Chancellor or Master of the Rolls), and exercise in such matters all the 
 from the General Post Office, are appointed Commissioners to take evidence 
 which a decree for dissolution was made) the examination of witnesses, and they
 
 APPENDIX. 
 
 485 
 
 Courts of Equity — (cont.) 
 
 Decrees and Orders how enforced. 
 
 Whether of 
 Record. 
 
 Suits how 
 removed. 
 
 To what Court 
 Appeal lies. 
 
 
 If removed. 
 
 Without removal. 
 
 
 •• 
 
 •• 
 
 Yes. 
 (Com. Dig. 
 Courts, O. 
 [3] 2 Mun, 
 C. C. Rep. 
 123.) 
 
 
 To the Vice- 
 Chancellor's, 
 i.e. Chancel- 
 lor's, Univer- 
 sity Court. 
 
 The only Ct. of 
 Review from 
 the Common 
 Law or Equi- 
 ty side was 
 the Court of 
 St. Martin's- 
 le-Grand (2 
 Mun. C. C. 
 Rep. 128) for 
 which the 
 Exch. Cham, 
 is now sub- 
 stituted (20 
 & 21 Vict. c. 
 clvii. s. 11), 
 and that 
 would seem 
 therefore to 
 be now the 
 Court of Re- 
 view from a 
 decree of the 
 Equity side of 
 the Court. 
 
 
 Semhle, if not with- 
 in s. 18 of 1 & 2 
 Vict. c. 110 (Pul- 
 ling's Laws of 
 Lond.l99,n.(a)), 
 and if within s. 22, 
 removeable with- 
 in that section, 
 and then become 
 West, judgments. 
 (7 Bowling, 616.) 
 
 If not within s. 18 
 of 1 & 2 Vict. c. 
 110, which it 
 seems they are 
 not (ante, p. 16), 
 may be enforced 
 against body (by 
 attachment) or 
 goods. 
 
 To the High 
 Court by spe- 
 cial order of 
 Ld. Cliancel- 
 lor, Master of 
 the Rolls or 
 aVice-Chan- 
 cellor. Mas- 
 ter of the 
 Rolls may 
 make rules 
 respectingre- 
 movals. (20 
 & 21 Vict. c. 
 clvii. s. 20.) 
 
 The custom of foreign 
 attachment does not 
 appear to be enforce- 
 able in the Ld. Mayor's 
 Equity Court, except 
 so far as plaintiff may 
 file a bill to discover 
 what goods of defend- 
 ant garnishee has in 
 his hands. 
 
 The business in this 
 Court was (1837) 
 almost confined to bills 
 of discovery and suits 
 for compelling resti- 
 tution of premiums to 
 apprentices, where an 
 apprentice has been 
 "discharged from his 
 indenture" by a Judg- 
 ment of the L. M.'s C. 
 L. Court. (2 Mun. 
 Com. Rep, 127.) 
 
 perform duties in causes depending in the High Court, or before the Lord Chancellor in the exercise of 
 in their districts, and shall have, for that purpose, all the authorities of officers of that Court. (9 & 10 
 
 for the removal of Trustees, or for any other relief, or for the settlement of disputes in any Society, the 
 the decision of any arbitrators (in certain cases), shall be made to the judge of the Court for the district 
 dispute, and give such relief as the Court of Chancery may. (s. 41.) 
 
 Masters Extraordinary for that Act, and may hear matters referred to them by the Masters (on petition 
 powers of a Master ; and by the Winding-Up Act, \M9 (s. 20) County Court Judges who sit 20 miles 
 under both Acts ; and the Master may refer to them (though out of the jurisdiction of the Court by 
 .shall have, for that purpose, all the powers given to a Master by the two Acts.
 
 486 
 
 APPENDIX. 
 
 3. Courts (commonly called 
 
 Name of Court. 
 
 Her Majesty's Court 
 of Bankruptcy. 
 
 (i) London Dis- 
 trict Court, con 
 sisting of four 
 Commissioners, 
 eacli of whom sits 
 singly as a Court. 
 
 Procedure. 
 
 Regulated by 1 & 
 Will. 4, c. 56 ; 7 & 8 
 Vict c. 70; 12 & 13 
 Vict. c. 106 ; and rules 
 and orders made by 
 Commissioners with 
 Lord Chancellor's ap- 
 proval (12 & 13 Vict, 
 c. 106, s. 8). 
 
 (ii) Birmingham 
 District Court. 
 
 (iii) Bristol Dis- 
 trict Court. 
 
 (iv) Exeter Dis- 
 trict Court. 
 
 (v) Leeds 
 trict Court. 
 
 Dis- 
 
 (vi) Liverpool Dis- 
 trict Court 
 
 (vii) Manchester 
 District Court. 
 
 (viii) Newcastle- 
 on-Tyne District 
 Court 
 
 Whether of 
 Record. 
 
 Yes. 
 
 12&13Vict 
 c. 106, s. 6. 
 
 Jurisdiction in Debt. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 (i) Where the debtor is subject to the Bank 
 rupt Laws (who are, p. 81 ). 
 
 Unlimited in amount, in all matters relating to 
 the disposition of bankrupt's estate, and 
 between the assignee and any creditor or 
 other person appearing and submitting to 
 the jurisdiction of the Court (12 & 13 Vict 
 c. 106, s. 12). 
 
 Its territorial jurisdiction is regulated by Order 
 in Council, November, 1842, and comprises 
 all places (not comprised in the other dis- 
 tricts) within any of which the trader has 
 resided or carried on business for six months 
 immediately preceding the petition in Bank- 
 ruptcy (12 & 13 Vict c. 106, s. 90). 
 
 (ii) Where debtor not subject to Bankrupt 
 Laws. 
 
 Whatever the amount, the Court may en- 
 tertain and give effect to petition for ar- 
 rangement between himself and his creditors 
 (7 & 8 Vict c. 70, s. 1;. [Semble, the Court 
 to petition is the one within which he 
 residing.] 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid-
 
 APPENDIX. 
 
 487 
 
 Courts) of Law and Equity. 
 
 Orders how enforced. 
 
 To what Court Appeal lies. 
 
 Observations. 
 
 (i) If within ss. 123 & 219 of 12 & 13 Vict. 
 c. 106 — as Westminster judgments, by writs 
 of ca. sa., fi. fa., vend, exponas and elegit, 
 (issued by the Court under the authority of 
 1 & 2 Vict. c. 110, s. 20). 
 
 But they shall not affect lands as against 
 purchasers, mortgagees and creditors until 
 they are registered in the C. P. at West- 
 minster (18 & 19 Vict. c. 15, s. 10), 
 
 To the Court of the Lord C, or 
 of the Lord C. and Lords 
 Justices, (14 & 15 Vict. c. 83, 
 s. 7,) and thence (on matters 
 of Law or Equity, or on the 
 rejection or admission of evi- 
 dence, and on a special case to 
 be approved by one of the 
 Judges of the Court of Appeal) 
 to the House of Lords, (s. 10.; 
 
 Each London and 
 Country Court is 
 singly a Court (12 & 
 13 Vict c. 106, s. 6). 
 
 Ibid. 
 
 Ibid. 
 
 
 Ibid. 
 
 Ibid. 
 
 
 Ibid. 
 
 Ibid. 
 
 
 Ibid. 
 
 Ibid. 
 
 
 Ibid. 
 And the orders should be also registered in 
 the C. P. of Lancaster, where registration is 
 necessary. (Ante, p. 24.) 
 
 Ibid. 
 
 
 Ibid. 
 
 Ibid. 
 
 
 And the orders should, to affect lands within 
 the Co. Palatine of Durham, (which is part 
 of the district,) be — where registration is ne- 
 cessary — registered in the Pleas of Durham 
 also. (Ante, p. 24.) 
 
 Ibid. 

 
 488 
 
 APPENDIX. 
 
 3. Courts (commonly called 
 
 Name of Court. 
 
 II. 
 
 Insolvency Courts. 
 
 (1) London Courts. 
 
 (i) Chief Commis- 
 sioner's Court (10 
 & 11 Vict. c. 102, 
 S.6). 
 
 (ii) 2ud Commis- 
 sioner's Court. 
 (Ibid.) 
 
 (iii) 3rd Commis- 
 sioner's Court. 
 (Ibid.) 
 
 (2) New County 
 Courts. 
 
 Whether 
 of Record. 
 
 (i) 
 
 As to imprisoned debt- 
 ors, regulated by 1 & 
 2 Vict c. 110. 
 
 (ii) 
 
 As to unimprisoned 
 debtors, including 
 
 traders owing less than 
 300/., regulated by 5 
 & 6 Vict. c. 116; 7 & 
 8 Vict. c. 96 ; under 
 the first of which (s. 
 13) the Court may, 
 with consent of Lord 
 C, make orders. 
 
 (iii) 
 As to judgment debtors 
 up to 20/., regulated 
 by 8 & 9 Vict. c. 127, 
 and 10 & 11 Vict, 
 c. 102, s. 4. 
 
 Yes. 
 
 & 2 Vict. 
 110, s. 27. 
 
 As to imprisoned debt 
 ors, these Courts may 
 make rules as London 
 Court may(10 & 11 
 Vict. c. 102, s. 10). 
 
 (") 
 As to unimprisoned 
 
 debtors, see 5 & 6 Vict. 
 
 c. 116, s. 13; 10 & 
 
 11 Vict. c. 102, s. 4. 
 
 (iii) 
 
 As to judgment debtors 
 
 under 20/., see 8 & 9 
 
 Vict. c. 127; 10 & 
 
 11 Vict. c. 102, s. 4. 
 
 Jurisdiction in Debt. 
 
 (i) Over imprisoned debtors, i. e., owing more 
 than 20/. in E. or W. — unlimited in amount. 
 
 (ii) Over unimprisoned insolvents, (whether 
 traders owing less than 300/., or non-traders,) 
 or judgment debtors for not more than 
 20/., against whom plaintifi" shall obtain a 
 summons under s. 1 of 8 & 9 Vict. c. 127, 
 where Insolvent or Judgment debtor re- 
 sided within 20 miles of London for the last 
 6 months before the filing of his petition or 
 the suing out any judgment summons against 
 him (10 & 11 Vict. c. 102, s. 6), or has not 
 resided 6 months in any one place. In the 
 latter case the Court matj send the case to 
 any County Court (s. 8). 
 
 Yes. 
 
 9 & 10 Vict. 
 
 c. 95. 
 
 Over imprisoned debtors, unlimited in amount 
 when in a gaol within the district of the 
 Court (10 & 11 Vict. c. 102, s. 10). 
 
 (ii) 
 
 Unimprisoned insolvents, (whether traders 
 owing less than 300/., or non-traders,) and 
 judgment debtors against whom the creditor 
 has obtained a summons, where the insolvent 
 or debtor has resided more than 20 miles 
 from London, and shall have resided for the 
 6 months preceding his petition within the 
 County Court district (10 & 11 Vict. c. 102, 
 s. 6). 
 
 4. Admiralty 
 
 Name of Court. 
 
 Procedure. 
 
 Whether 
 of Record. 
 
 Jurisdiction in Debt. 
 
 High Court of Ad- 
 miralty. 
 
 According to Rules 
 made by the Judge, 
 and approved by 
 Queen in Council (3 & 
 4 Vict. 0. 65). 
 
 No. 
 
 For seamen's or master's wages, if over 50/., or 
 if the ship owner be bankrupt or insolvent, 
 or two Justices refer the case to the Court, 
 or the ship is under arrest or sold, or if 
 debtor reside more than 20 miles from the 
 place where the creditor was discliarged or 
 put on shore (17 & 18 Vict. c. 104, ss, 188, 
 189).
 
 appendix. 
 Courts) of Law and Equity— (cow^) 
 
 489 
 
 Orders how enforced. 
 
 Judgments entered upon warrants of attorney 
 by order of Court to the amount of scheduled 
 debts of an imprisoned debtor are enforceable 
 as recognizancea ; and Court may permit 
 execution to be taken out thereon (1 & 2 
 Vict. c. 110, s. 87), as long as the debtor is 
 alive (Harden v. Forsyth, 1 Q. B. 177), 
 
 To what Court Appeal lies. 
 
 None, 
 
 Obser\'ations. 
 
 Every Commissioner is 
 singly a Court (10 & 
 11 Vict. c. 102, s. 6). 
 
 Ibid. 
 
 Ibid. 
 
 Courts. 
 
 Decree how enforced. 
 
 In rem, by process against the ship, or pro- 
 ceeds of a sale thereof. 
 
 To what Court Appeal lies. 
 
 Observations. 
 
 To the Judicial Committee ofiThis jurisdiction seems 
 the Privy Council. concurrent with the 
 
 Common Law Courts, 
 whether the contract 
 is unusual and under 
 seal, or usual and not 
 under seal (Abbott on 
 Shipp. 542).
 
 490 
 
 APPENDIX. 
 
 [B.] APPELLATE 
 L Courts of Appeal from 
 
 Name of Court. 
 
 Procedure. 
 
 Whether 
 of Record. 
 
 Jurisdiction in Debt. 
 
 I. 
 
 Court of Queen's 
 
 Bench. 
 
 Two or more judges 
 from Q. B., C. P. or 
 
 Exch. may sit out of 
 term, as an Appeal 
 Court from the New 
 County Courts ( 15 & 
 16 Vict. c. 54, s. 2), 
 
 (i) In "error," regulated chiefly 
 byC. L.P.Act, 1852, ss. 146, 
 167. 
 
 (ii) On a writ of false judg- 
 ment (the mode of appeal 
 from Courts not of Record) 
 the procedure is, — after the 
 writ (which issues out of 
 Chancery and is a superse- 
 deas of execution, Archbold, 
 1262), and the records are 
 entered and filed — the same 
 as in "error" (lb. 1263). 
 
 Yes. 
 
 See p. 442. 
 
 II. 
 
 Court of Common Pleas 
 at Westminster. 
 
 Same as Q. B. 
 
 Yes. 
 
 Same as Q. B. 
 
 III. 
 
 Court of Exchequer 
 
 (Plea side). 
 
 Same as Q. B, 
 
 Yes. 
 
 Same as Q. B. 
 
 (a) The Court of Hustings sctms no longer a Court of Appeal from the London SheriflFs' Court, 
 writing since that Act, considers that an appeal lies. (Archb. Pr. 1255.)
 
 APPENDIX. 
 
 491 
 
 COURTS (a). 
 Courts of Law only. 
 
 Judgments huw enforced. 
 
 Is a Court of Appeal from. 
 
 enforced as its judg- 
 ments, which shall 
 avvard all necessary 
 proceedings on th 
 judgnu-tit of the Court 
 of Error (C. L. P. Act, 
 1852, s. 155). 
 
 Are the judgments of(i) In "error." 
 
 the original Court, and| (a) From its own judgments, if the 
 error be in process, or of fact 
 (Arch. Pr. 509). 
 (i) From the C. P. of Lancaster, 
 and P. at Durham (15 & 16 Vict, 
 c. 7(J, s. 233). 
 
 (c) From the City and Borough 
 Courts, if of record, except the 
 Lord Mayor's Court. 
 
 (d) From the New County Courts, 
 if the debt be between 20/. and 
 50/. (13 & 14 Vict. c. 61, s. 14; 
 15 & 16 Vict. c. 54, s. 2.) 
 
 (e) From the Barmote Courts, 14 
 & 15 Vict. c. <)4, s. 29. 
 
 (/) From the London Sheriffs' Ct., 
 15 Vict. c. Ixxvii. s. 78. 
 (ii) By writ of false judginent. 
 
 (a) From the Hundred and Manor 
 
 Courts, not of record, 
 (i) From the (Old) County Courts. 
 
 Appeal lies. 
 
 If error be of Law, 
 to the Exchequer 
 Chamber before 
 judges of the C. 
 P. and Exch. : 
 and thence to the 
 H. of Lords (11 
 Geo. 4 & 1 Will. 
 4, c. 70, s. 8). 
 
 Observations. 
 
 Writs of error are only 
 abolished where the 
 judgment appealed 
 from is that of one of 
 superior Courts (Arch. 
 Pr. 506 ; C. L. P. Act, 
 1852, s. 148). 
 Seinble, since 18 & 19 
 Vict. c. 48, has abo- 
 lished the civil juris- 
 diction of the Lord 
 Warden of the C. Ports, 
 which used to be 
 the Court of Appeal 
 from their Courts, the 
 appeal from them is 
 now direct to Q. B. 
 
 Same as Q. B. (i) In " error." 
 
 (a) From its own judgments, if the 
 error be in process, or of fact 
 (Arch. Pr. 509) 
 (6) From the City and Borough Courts, if of record 
 except L. M.'s Ct., though not so usually resorted to as 
 Q. B., 2 Saund. 101 a (n.); 1 Man.& Gr. 2, n. (a), 
 (c) From the London Sheriffs' Court. 
 {d) From the New County Courts, if debt be between 20/. 
 and 50/. (13 & 14 Vict. c. 61, s. 14; 15 & 16 Vict. c. 54, 
 s. 2). 
 (ii) By writ of false judgment (Arch. Pr. 1240). 
 (a) From Hundred and Manor Courts not of record. 
 (6) From the Old County Courts. 
 
 If error be in Law, 
 to the Exchequer 
 Chamber before 
 judges of the Q. 
 B. and Exch.; 
 and thence to the 
 H. of Lords (11 
 Geo. 4 & 1 Will. 
 4, c. 70, s. 8). 
 
 Same as Q. B. 
 
 Same as C. P. 
 
 If error be in Law, 
 to the Exchequer 
 Chamber before 
 judges of Q. B. 
 and C. P.; and 
 thence to the H. 
 of Lords (11 Geo. 
 4 & 1 Will. 4, c. 
 70, s. 8). 
 
 whether the debt is above or below 20/. (15 & 16 Vict. c. Ixxvii. ss. 78, 80); although Mr. Archbold,
 
 49^ 
 
 APPENDIX. 
 
 1. Courts of Appeal from 
 
 Name of Court. 
 
 Procedure. 
 
 Whether 
 of Record. 
 
 Jurisdiction in Deht. 
 
 IV. 
 
 Court of Exchequer 
 
 Chamber. 
 
 Regulated by rules and orders 
 by eight or more Judges (in- 
 cluding the Chiefs) of the 
 three Westminster Courts 
 (11 Geo. 4&1 Will. 4, C.70, 
 s. 11). 
 
 Yes. 
 
 All such jurisdiction as the Court 
 has from which the appeal is. 
 
 V. 
 
 House of Lords. 
 
 The Master of the Court below 
 shall bring the Judgment roll 
 before the House, before or at 
 the time of its sitting; and 
 the House may review the 
 proceedings and give judg- 
 ment as it may be ad- 
 vised ; and such proceedings 
 and judgments shall be en- 
 tered on the original record, 
 and the original Court may 
 award such further proceed- 
 ings as may be necessary 
 (C. L. P. Act, 1852, s. 155). 
 
 The procedure is regulated by 
 the Standing Orders of the 
 House, (as to which, down to 
 1835, see Macqueen's Prac- 
 tice of the House of Lords, 
 Appx. 1,) which require ge- 
 nerally a printed case. 
 
 Yes. 
 
 Such jurisdiction as the Court has 
 from which the appeal comes. 
 
 VI. 
 
 Court of Common Pleas 
 at Lancaster. 
 
 See ante, p. 444. 
 
 Ibid. 
 
 Ibid. 
 
 VIL 
 
 Court of Pleas of the 
 
 County Palatine of 
 
 Durham and Sad- 
 
 berge. 
 
 See ante, p. 444. 
 
 Ibid. 
 
 Ibid.
 
 APPENDIX. 
 
 493 
 
 Courts of Law only — (cont.) 
 
 Judgments how enforced. 
 
 As the judgments of 
 the original Courts. 
 
 If judgment below be 
 reversed, the plaintiff 
 in error may have a 
 writ of restitution. 
 
 Is a Court of Appeal from. 
 
 For "error" in Law from the judg- 
 ments or decrees of the Lord 
 Mayor's Court, and from the judg- 
 ments (whether original or on ap- 
 peal) of Exchequer, of C. P., and of 
 Q. B. 
 
 Appeal lies. 
 
 To H. of Lds. 
 (11 Geo, 4 & 1 
 Will. 4, c. 70, 
 
 s. 8). 
 
 Observations. 
 
 By " error" in Law, from judgment 
 affirmed or reversed in Exchequer 
 Chamber. 
 
 Proceedings and judg- 
 ment, as altered or 
 affirmed, shall be en- 
 tered on the original 
 record, and such fur- 
 ther proceedings as 
 may be necessary 
 thereon shall be award- 
 ed by the Court in 
 which the original 
 judgment was given. 
 (C. L. P. Act, 1852, 
 s. 155.) 
 
 After judgment of af- 
 firmance signed, the 
 defendant in error may 
 take out execution for 
 the original judgment debt, damages, and costs 
 in error (Ibid. s. 154), such execution to be 
 the same, and to be sued out, as in ordinary 
 cases. 
 
 If the judgment below be reversed, the plain- 
 tiff in error may have a restitution of all he 
 may have lost, by writ of restitution or on ap- 
 plication to the Court or Judge. 
 
 None. 
 
 The judgment is the 
 judgment of the ori- 
 ginal Court, and en- 
 forced as such. 
 
 Ibid. 
 
 From any inferior Court within the 
 County Palatine, except New County 
 Courts (the appeal from which lies 
 direct to the Westminster Courts) 
 by writ of error, if of record ; and 
 writ of false judgment, if not of 
 record (Wareing, 14). 
 
 Same as C. P. of L. 
 
 There seem to be no Courts of Record 
 within the county. (See ante, 450 
 et seq.) There are, however, Hun- 
 dred Courts, (ante, pp. 464, 465,) 
 from which an appeal may lie. 
 
 ToQ.B. 
 
 Ibid. 
 
 Though, in its nature, 
 a Court of Law and 
 Equity, it is not so 
 (but of Law only), 
 when sitting in appeal 
 from Courts of Law ! 
 
 A bill, in the nature of 
 a bill of Review against 
 a judgment of its own, 
 lies on the gi-ound of 
 material evidence dis- 
 covered since. 
 (Macqueen Pr. 448.) 
 
 Appeals lie to it from 
 all judgments of the 
 Common Law side of 
 the High Court of 
 Chancery, but they 
 are not judgments for 
 debts. 
 
 Writs of error issue 
 from the High Court 
 of Chancery (Mare- 
 ing, 299) ; writs of false 
 judgment from the Pa- 
 latinate Chancer}'. 
 (Ibid. 304.) 
 
 Ibid.
 
 494 
 
 APPENDIX. 
 
 1. Courts of Appeal prom 
 
 Name of Court. 
 
 Whether 
 of Record. 
 
 Jurisdiction in Debt. 
 
 VIII. 
 
 Court of the Lord War General rules made by the Lord 
 den of the Stannaries. Warden, approved by two 
 members of the Judicial 
 Committee of the Privy 
 Council or Judges of the 
 High Court of Chancery, or 
 Superior Courts of Common 
 Law. (18 Vict. c. 32, s. 26.) 
 
 Yes. 
 
 Same as Vice-Warden's Common Law 
 Court, ante, p. 446. 
 
 IX. 
 
 Judicial Committee of Regulated chiefly bv 2 & 3 
 
 the Privy Council. Will. 4, c. 92 ; 3 & 4 Will. 
 
 i 4, c. 41 ; 6 & 7 Vict. c. 38 ; 
 
 7 & 8 Vict. c. 69, and rules 
 
 made in pursuance thereof. 
 
 (See Macqueen's Pr. of the 
 
 House of Lords and Privy 
 
 Council, 706 et seq.) 
 
 Same as Court from which the appeal 
 lies. 
 
 2. Courts of Appeal from 
 
 Name of Court. 
 
 i 
 
 WTiether 
 Procedure. of Redord, 
 
 Jurisdiction in Debt. 
 
 I. ! 
 
 Court of the Lord Ante, p. 474. Ante, p. 475 
 Chancellor (sitting in 
 Equity). 
 
 Same as that of the Court from which 
 appeal lies. 
 
 II. 
 Court of the Lord 
 Chancellor and Lords 
 Justices (Court of Ap- 
 peal in Chancery). 
 
 Ante, p. 474. 
 
 Ante, p. 477 
 
 Same as Lord Chancellor's. 
 
 III. 
 Court of the Chancellor 
 of the Duchy of Lan- 
 caster. 
 
 Regulated by rules made by 
 Chancellor of the Duchy and 
 Lords Justices ( 17 & 18 Vict, 
 c. 82, s. a), and in default, by 
 practice of the High Court 
 (Winstanley, 19) — if "power 
 to regulate the business of 
 the Court" (s. 5) gives power 
 to make i-ules. 
 
 
 Same as the Court of Chancery of 
 Lancaster, ante, p. 480.
 
 APPENDIX. 
 
 495 
 
 Courts of Law only — (cont.) 
 
 Judgments how enforced. 
 
 The judgment is to be 
 remitted to the Vice- 
 Warden's Court, to be 
 by him enforced ac 
 cording to the practice 
 of the Court HS Vict, 
 c. 32, s. 26). 
 
 Is a Court of Appeal from. 
 
 Appeal lies. 
 
 Vice- Warden's Court (Common Law 
 side) (ante, p. 446, 18 Vict c. 32, 
 s. 26.) 
 
 Enforced as judgments 
 of Queen's Bench. (3 
 & 4 Will. 4, c. 41, s. 
 28.) 
 
 To the Jud. Com- 
 mittee of the Pri 
 vy Council. (18 
 Vict. c. 32, s. 26.) 
 
 Observations. 
 
 Held before Lord War- 
 den and two or more 
 members of the Jud. 
 Committee, or West- 
 minster Common Law 
 Judges, or Judges of 
 the High Court of 
 Chancery, sitting as 
 assessors to the Ld. 
 Warden (s. 26). 
 
 From the Court of the Lord Warden'None, nor any re- This Court has original 
 
 of the Stannaries sitting in appeal 
 from the Common Law Court of the 
 Vice- Warden. (18 Vict. c. 32, s. 
 26.) 
 
 hearing after judg- jurisdiction in some 
 ment, unless for a^ cases ; e.g. in constru- 
 misrepresentation ing colonial charters. 
 
 of facts. But er- 
 rors may be recti- 
 fied. (Macqueen, 
 771, 772.) 
 
 but not in debt. 
 
 Courts of Equity. 
 
 Decrees how enforced. 
 
 Ante, p. 475. 
 
 Ante, p. 477. 
 
 From what Court Appeal lies. 
 
 From either of the three Vice-Chan- 
 cellors' Courts, or from the Master 
 of the Rolls. 
 
 Ibid. 
 
 To what Court 
 Appeal lies. 
 
 Observations. 
 
 To House of Lords 
 
 As decrees of the Court 
 of Chancery at Lan- 
 caster. (17 & 18 Vict 
 c. 82, s. 10.) 
 
 From the Court of Chancery at Lan- 
 caster. (17 & 18 Vict. c. 82, s. 1.) 
 
 To House of Lords. 
 
 To House of Lords 
 (17 & 18 Vict, c 
 82, s. 3). 
 
 Held before the Lord 
 Chancellor of the 
 Duchy and one Lord 
 Justice, or before the 
 two Lords Justices, 
 (s. 2.)
 
 496 
 
 APPENDIX. 
 
 2. Courts of Appeal from 
 
 Name of Court. 
 
 Procedure. 
 
 "WTiether 
 of Record. 
 
 Jurisdiction in Debt. 
 
 House of Lords . . 
 
 The decree appealed from must 
 be first enrolled. Petition of 
 appeal is prepared and signed 
 by two counsel, and presented 
 to the House by some lord, 
 who moves that it be read, 
 and an order is made that 
 respondent answers within 
 given time ; if he does not, 
 a peremptory order is made 
 on him to do so ; and if lie 
 neglects such order, appel- 
 lant applies to have the cause 
 heard ex parte. The answer 
 being put in, either party 
 may apply to have the cause 
 heard. (Smith's Chanc, Pr. 
 (6th ed.)p. 496.) 
 
 Yes. 
 
 Same as Court from which the ap- 
 peal lies. 
 
 Judicial Committee of 
 the Privy Council. 
 
 Ante, p. 494. 
 
 
 Ibid. 
 
 Court of Delegates of 
 the Senate of .the 
 University of Cam- 
 bridge. 
 
 
 • 
 
 Ibid. 
 
 ■ 
 
 Court of the Chancellor, 
 Masters and Scholars 
 of the University of 
 Cambridge. 
 
 Ante, p. 482. 
 
 Ante,p.483. 
 
 Ibid.
 
 APPENDIX. 
 
 497 
 
 Courts of Equity— (coni.) 
 
 Decrees and 
 Orders how enforced. 
 
 From what Court Appeal lies. 
 
 To what Court 
 Appeal lies. 
 
 Observations. 
 
 Judgment of affirm- 
 ance simply establishes 
 matters as they were 
 and (semble) need not 
 be made an order ut 
 the Court below. Seats, 
 where the decree or- 
 ders anything to he 
 done by the Court be- 
 low (Macqueen's Pr. 
 276). 
 
 (i) From the Court of the Lord Chan. 
 (sitting in Equity), 
 ii ^ From the Court of the Lord Chan, 
 and Lords Justices (Court of Appeal 
 in Chancery). 
 
 (iii) From the Court of the Chancellor 
 of tlie Ducliy of Lancaster. 
 
 ;iv) From the Court of Chancery of 
 Lancaster, immediately, if the decree 
 or order has been enrolled (VVin- 
 staidey, 32). 
 
 (v) From either of the tliree Vice- 
 Chancellors of the High Court or 
 from the Master of the Rolls imme- 
 diately, if the decree has been en- 
 rolled. 
 
 None. 
 
 The House will not ge- 
 nerally stay execution 
 or })roceedings below, 
 unless it ap))ears a 
 j)revious a]>idication 
 has been made and re- 
 fused in the Court be- 
 low (Macqueen, 239). 
 
 Ante, p. 494. 
 
 (i) From the Court of the Lord War- 
 den of the Stannaries (sitting in ap- 
 peal from the Equity (3ourt of the 
 Vice- Warden). 
 
 (ii) From tlie Court of Chancery of 
 Durham, the appeal (which was to 
 the Queen herself, Bac. Abr. vol. 2, 
 p. 512) being by s. 3 of 3 & 4 Will. 
 4, c. 41, transferred to the Judicial 
 Committee. 
 
 None. 
 
 ■ 
 
 This Court is a Court of 
 Appeal also from t';e 
 Lord C'han. Court and 
 from the Court of .Ap- 
 peal in Chan, sitting 
 iti Lunacy, ( Macqueen, 
 752 : ) but this is not a 
 question of jurisdic- 
 tion in debt. 
 
 Semble, decree is the de- 
 cree of the Court be- 
 low, and enforced as 
 such, ante, p. 482. 
 
 From the Court of the Chancellor, 
 Masters and Scholars of the Univer- 
 sity (Camb. Univ. Com. Rep. p. 5). 
 
 None (Camb. Univ. 
 Com. Rep. p. 5). 
 
 This Court is composed 
 of delegates not fewer 
 than tlnee nor more 
 than five. 
 
 
 From the Court of the Commissary 
 of the University (Camb. Univ. Com. 
 Rep. p. 5). 
 
 The Court of De- 
 legates of the Se- 
 nate. 
 
 
 K K
 
 498 
 
 appendix. 
 
 3. Courts of Appeal from Courts 
 
 Name of Court. 
 
 Procedure. 
 
 Whether 
 of Record. 
 
 Jurisdiction in Debt. 
 
 I. 
 
 Court of the Lord Chan- 
 cellor. 
 
 Same as Court from which 
 appeal lies. (Ante, p. 486.) 
 
 Ante, p. 474 
 
 Same as Court from which appeal is. 
 
 II. 
 
 Court of the Lord Chan- 
 cellor and Lords Jus- 
 tices (" Court of Ap- 
 peal in Chancery"), 
 
 Ibid. 
 
 Ante, p. 476 
 
 Ibid. 
 
 in. 
 
 House of Lords. 
 
 Ibid. 
 
 Ante, p. 496 
 
 Ibid. 
 
 4. Court of Appeal from 
 
 Name of Court. 
 
 Procedure. 
 
 Whether 
 of Record. 
 
 Jurisdiction in Debt. 
 
 Judicial Committee of 
 the Privy Council. . 
 
 Ante, p. 494. 
 
 • • 
 
 Ante, p. 494.
 
 APPENDIX. 
 (COMMONLY CALLED CoURTS) OF LaW AND EqUITY. 
 
 499 
 
 Orders how enforced. 
 
 From what Court Appeal lies. 
 
 To what Court 
 Appeal lies. 
 
 Observations. 
 
 As the orders of the 
 Court below are, ante, 
 p, 486. 
 
 From the Court of Bankruptcy, 14 & 
 15 Vict. c. 83, cf. ss. 7, H. 
 
 On matters of Law 
 or Equity, or on 
 the admission or 
 rejection of evi- 
 dence, and, on a 
 special case (to be 
 approved by the 
 Lord Chan.), to 
 the H. of Lords. 
 
 
 Ibid. • 
 
 Ibid. 
 
 Same as L. Chan, 
 except that the 
 special case may 
 be approved by 
 one of the Lords 
 Justices vice the 
 Lord Chan. 
 
 
 Same as L. C, after 
 the order of the H. of 
 Lords is made a rule 
 of the Court of Chan. 
 (Seton, 599). 
 
 From the Court of the Lord Chan, or 
 of the Lord Chan, and Lords Jus- 
 tices, on matter of Law or Equity, or 
 the rejection or admission of evi- 
 dence, and on a special case to be 
 approved by the Lord Chan, and one 
 of the Lords Justices, or by Lord 
 Chancellor. 
 
 None. 
 
 
 Admiralty Court. 
 
 Decrees and 
 Orders how enforced. 
 
 Ante, p. 494. 
 
 From what Court Appeal lies. 
 
 From Admiralty Court. 
 
 To what Court 
 Appeal lies. 
 
 Observations. 
 
 None. 
 
 Appeal must be assert- 
 ed within 15 days, 
 and prosecuted within 
 a year and a day. 
 
 K K ^
 
 INDEX. 
 
 Abandonment of Ship, 
 what, 161. 
 
 Abatement, 
 
 time to plead in, 12. 
 Acceptance of Bill, 173. 
 Accommodation Bill, 170. 
 Accountant, 
 
 to Crown, who is an, 433. 
 
 General, 136, 360. 
 
 Administration 
 
 summons, what, 282. 
 
 what constitutes, 280. 
 
 durante minoritate or dementid, 278. 
 
 of assets, order of, 295. 
 
 joint, 209. 
 
 Admiralty 
 
 jurisdiction over seamen's wages, 177, 499. 
 Adverse Judgments, 8. 
 Advowsons, 
 
 chargeable in equity on judgment, 37. 
 
 not extendible, 33. 
 
 mortgage of, 336. 
 
 remedies of mortgagee of, 365. 
 Agency, 
 
 generally, 200. 
 
 of wife, 260. 
 
 of partners, 201, 402. 
 Agent, 
 
 how appointed, 201. 
 
 special, ib. 
 
 general, ib. 
 
 principal v., ib. 
 
 V. principal, 202. 
 
 V. third persons, 203. 
 
 third persons v., ib. 
 
 receipts by and to, ib. 
 
 payments by and to, ib. 
 
 determination of, 204. 
 
 Agreement, 
 
 what, 2, 139. 
 
 to sell debt, 190. 
 
 to mortgage stock, 346. 
 
 to grant an annuity, 421. 
 
 to deposit, 340. 
 
 to execute a legal mortgage, ib., 363, 364. 
 
 must be written, when, 165. 
 Aliens, 
 
 who are, 266. 
 
 creditors, 
 
 friends, 267. 
 enemies, ib. 
 
 Aliens — continued. 
 debtors, 267. 
 naturalized, ib. 
 mortgagees, 332. 
 mortgagors, 333. 
 
 jIllocatvr of Costs, 7. 
 
 Annuities, 
 personal, 
 
 what, 417. 
 
 redeemable, 421. 
 
 irredeemable, 419. 
 
 remedies of grantee, ib. 
 
 remedies of grantor, 420. 
 
 special occupancy, 419. 
 
 how far realty, 418. 
 rent-charges (see Rent-charges). 
 Appeal, 
 
 Courts of, 490. 
 
 Appearance, 
 
 judgment in default of, 8, 11. 
 time to enter, 11. 
 
 Appointment 
 
 of wife's realty, 262. 
 
 personalty, ib. 
 power of, V. judgment, 31, 39. 
 
 Appropriation of Payments, 212. 
 
 Archbishop (see Corporations proper). 
 
 Archdeacon (see Corporations proper). 
 
 Arrears 
 
 of interest, 
 
 on judgments, 79. 
 
 on specialties, 205. 
 
 on simple contract debts, 207. 
 of rent, 206. 
 of annuity, 426, 
 
 Arrest, 
 
 on mesne process, 192. 
 on ca. sa., 52, 53. 
 of judgments, 43. 
 
 Assent, 
 
 basis of contracts, 264. 
 
 of executor to legacy, 314, 348. 
 
 of debtor to assignment, 
 at law, 183. 
 in equity, 186. 
 
 to simple contract, 164. 
 Assets, 
 
 defined, 268. 
 
 legal, 269. 
 
 personal, 272.
 
 502 
 
 INDEX. 
 
 Assets — continued. 
 real, 272. 
 
 equitable, 272, 304. 
 order of administration, 274. 
 infuturo, judgment of, 287. 
 
 Assignee, 
 of term, 
 
 lessor or grantee of reversion v., 158. 
 
 lessee v., 159. 
 of seaman's wages, 190. 
 of policy, 160. 
 oTpart owner of ship and seaman, 178. 
 
 Assignees 
 
 of bankrupt, 
 creditor, 
 
 trade, 91, 217. 
 
 official, ib. 
 debtor, 
 
 trade, 83, 213. 
 
 official, ib. 
 of insolvent, 
 creditor, 
 
 within 1 & 2 Vict, 91, 92, 218. 
 
 within Protection Acts, 92, 218. 
 debtor, 
 
 within 1 & 2 Vict., 87, 214. 
 
 within Protection Acts, 88, 216. 
 
 Assignment 
 
 of judgment, 77, 199. 
 of specialties and simple contract debts, 
 at law, 179. 
 in equity, 184. 
 of mortgages (see Transfer of Mortgages). 
 of solicitor's lien, 195. 
 to trustees for creditors, 252. 
 of bail bonds, 181. 
 of replevin bonds, ib. 
 
 ASSIMPSIT 
 
 for use and occupation, 155. 
 
 against sheriff, 54. 
 
 on simple contract debt, 167. 
 
 Attachment 
 
 in equity, 64. 
 
 at law, 53. 
 
 foreign (see Foreign). 
 
 Attorney, 
 
 warrant of, 8. 
 
 lien of, 195. 
 
 letters and powers of, 9, 
 
 privilege of, 221. 
 
 bills of costs of, 168. 
 
 Attornment, 352. 
 
 Average, 
 
 general, 162. 
 
 Avowry, 
 
 what, 156. 
 
 Award, 
 
 when a specialty debt, 147» 
 actions on, 205. 
 
 Bail Bonds, 
 
 what, 146, 192. 
 
 Bank 
 
 of England, 107. 
 
 private, ib. 
 
 savings, 110. 
 
 joint-stock, 108. 
 
 may be limitedly liable, 109. 
 
 Bank Stock, 182. 
 
 Bankrupt, 
 
 who may be, 81. 
 acts of bankruptcy, 82. 
 amount of debt, ib. 
 judgment v., 
 
 effect of, on creditor's legal remedies, 
 
 83. 
 effect of, on equitable remedies, 84. 
 judgment by, 
 
 effect of, on bankrupt's legal reme- 
 dies, 91. 
 effect of, on equitable remedies, ib. 
 in execution, 84. 
 
 a specialty and simple contract creditor, 
 217. 
 
 when he may sue, 
 at law, ib. 
 in equity, ib. 
 personal earnings by, 213. 
 a specialty and simple contract debtor, 213. 
 trustee, ib., 315. 
 mortgagor, 371, 373. 
 miner, 102. 
 executor, 213, 315. 
 
 Bankruptcy, 
 
 execution in, 55. 
 
 Court of, 486. 
 
 what orders in, are judgments, 6, 15. 
 
 separate, 102. 
 
 joint, 103. 
 
 Barmote Court, 472. 
 
 " Beyond Seas," 
 
 meaning of, 79, 208. 
 
 Bills 
 
 of exchange, 
 
 what, 170. 
 
 inland, 171. 
 
 foreign, ib. 
 
 lost, 147, 175. 
 
 transfer of, 171. 
 
 under 51., ib. 
 
 forgery of, 176. 
 of mortality, what, 163. 
 of costs, 
 
 taxation of, 168. 
 
 costs of taxation of, ib. 
 
 no remedy in equity for, 169. 
 of lading. 182. 
 of sale, 344, 371. 
 
 Bonds, 
 
 what, 140. 
 single, ib. 
 with condition, ib. 
 penalty of, 141. 
 consideration of, 143. 
 in restraint of trade, 144. 
 of marriage, ib.
 
 INDEX. 
 
 503 
 
 Bonds — continued, 
 
 marriage brocage, 144. 
 
 resignation, 145. 
 
 post obit, ih. 
 
 bottomry, ib. 
 
 bail, 146. 
 
 replevin, ib. 
 
 for money lost at gaming, 144. 
 
 voluntary, ib., 301. 
 
 lost, 147, 175. 
 
 fraudulent, ib. 
 
 Borough Courts, 450. 
 
 Bottomry Bonds, 
 what, 145. 
 assignable, 190. 
 
 Breaches of Trust, 
 
 are debts, 1. 
 
 when simple contract debts, 178. 
 
 when specialty, ib. 
 
 a joint and several debt, ib. 
 
 where payable in administration of assets, 
 301. 
 Brokers, 
 
 who, 201. 
 
 Building Societies, 
 
 mortgage to, 402, 409. 
 
 Burial Boards, 
 charges by, 408. 
 
 Ca. sa., 52. 
 
 Call, 
 
 what, 241. 
 Cambridge 
 
 University Court, 482, 496. 
 
 Commissary Court, 482. 
 
 Court of Delegates, ib., 496. 
 
 Canal Companies, 
 mortgages by, 404. 
 judgments v., 113. 
 
 Canons (see Corporations proper). 
 
 Capias vtlagatum, 55. 
 
 Certiorari, 
 
 removal of actions, 443, 445, 447,449, 461, 
 473. 
 of judgments by, 20. 
 
 C EST VI QUE TRUST, 
 
 lands of, liable to judgment, 32. 
 of policy, 163. 
 of debt, 167, 184. 
 may refer solicitor's bill, 169. 
 V. trustee not within Statute of Limita- 
 tions, 206. 
 mortgage by, 
 
 of land, 343. 
 
 of stock, 346. 
 Charge 
 
 of debts by will on realty, 273. 
 
 Charging Order 
 legal, 59. 
 equitable, 58. 
 
 Charging Person in E.xecution, 37, 62. 
 
 Chattels Real, 
 
 how judgment affects, 22, 39. 
 mortgage of wife's, 397, 398. 
 
 Cheques, 
 
 what, 175. 
 under 20*., ib. 
 crossed, 176. 
 
 Chosks in action, 
 
 no tenancy in common of, at law, 35. 
 liable to judgment, 
 at law, 59. 
 in equity, 34. 
 when bound by judgment, 40. 
 remedy against, 22. 
 mortgage of (see Mortgage). 
 are goods within 13 Eliz., 40. 
 
 within reputed ownership clause, 
 371. 
 Church Building Acts, ib. 
 
 Churchwardens, 
 
 mortgages by, 406. 
 
 Cinque Ports Courts, 225, 453, 454, 458, 
 482. 
 
 City Courts, 224, 448, 460, 484. 
 Companies, 124. 
 
 Clubs, 
 
 are not partnerships, 255. 
 
 not with the W.-U. Acts, 1848,1849.-256. 
 
 liability of committtee-men, ib. 
 
 contribution between, ib. 
 power of majority, ib. 
 
 Co-Debtor, 
 
 payment by, 208. 
 absence beyond seas of, ib. 
 
 Co-Executor, 
 of debtor, 
 
 during joint lives, 290, 325. 
 after death of one, 290, 326. 
 death of, no abatement at law, 325. 
 
 effect of in equity, 326. 
 liability of, 312, 314. 
 of creditor, 
 
 by judgment, 76. 
 by specialty or special contract, 
 during joint lives, 208. 
 after death of one, 209. 
 
 Co-SURETIES, 
 
 liability of, 199. 
 discharge of, ib. 
 contribution inter se, 324. 
 death of, ib. 
 
 Co-Trustee, 
 
 actions by, 227. 
 judgments by, 133. 
 suits by, 1 33, 230. 
 actions against, 228. 
 judgments against, 95. 
 suits against, 229. 
 contribution by, 178. 
 death of, 133, 228, 230, 335. 
 liability of, 233. 
 
 Cognovit, 10.
 
 504 
 
 INDEX. 
 
 Colonial, 
 
 judgments, 21. 
 
 Companies 
 
 within Joint Stock Acts, 1856, 1857, 
 mortgages by, 402. 
 mortgages to, 410. 
 contracts by, 236. 
 judgments against, 107, 115, 116. 
 judgments by, 133, 135. 
 how sued, 236. 
 how sue, 133. 
 banking, 
 
 judgments against, 109, 110. 
 contracts by, 237. 
 within 7 Geo. 4. 
 how sue, 245. 
 how sued, 247. 
 mining, 
 
 judgments against, 112, 
 by, 133, 136. 
 within 8 & 9 Vict. c. 16, 
 judgments against, 112. 
 contracts by, 236. 
 how sued, ib. 
 how sue, 245. 
 mortgages by, 403. 
 mortgages to, 413. 
 transfer of, 403. 
 within 8 & 9 Vict. c. 18, 
 mortgages by, 402. 
 mortgages to, 410. 
 insurance, 
 
 juds:menfs against, 114. 
 judgments by, 133. 
 mortgages to, 402. 
 mortgages by, 404. 
 within 7 Will. 4 & 1 Vict. c. 73, 
 
 judgments against, 113. 
 within W.-U. Acts, 1848, 1849, 
 judgiiients against, 118. 
 judgments by, 136. 
 specialty and simple contract cre- 
 ditors, 246. 
 specialty and simple contract debtors, 
 242. 
 within 7 & 8 Vict. c. Ill, and 8 & 9 Vict. 
 c. 98, 
 
 judgments against, 120. 
 judgments by, 137. 
 within 9 & 10 Vict. c. 28, 
 judgments against, 121. 
 judgments by, 137. 
 how sued, 236. 
 how sue, 245. 
 old City, 124. 
 Composition Deeds, 
 by non-traders, 252. 
 non-statutory, 
 
 creditors who do not execute, 253. 
 not void under 13 Eliz., 252. 
 by insolvent, 253. 
 by joint stock companies, ib. 
 remedies of creditor, ib. 
 remedies of debtor, 254. 
 where irrevocable, ib. 
 trustees under, v. judgment cre- 
 ditors, 28. 
 
 Composition Deeds — continued. 
 by non- traders — continued. 
 
 statutory, 255. 
 by traders, 
 
 imprisoned or not, 254. 
 
 Concurrent (see Jurisdiction). 
 
 Condition, 
 
 defined, 140. 
 
 illegal, 141. 
 
 immoral, 144. 
 
 impossible, ib. 
 
 distinguished from consideration, 143. 
 
 Conditional Purchase, 
 
 distinguished from mortgage, 337. 
 redeemable annuity, 421. 
 
 Considerations, 
 
 of simple contracts, 164. 
 distinguished from conditions, 143. 
 executory and executed, 165. 
 illegal, 143. 
 immoral, 144. 
 principal legal, 165. 
 
 Consolidated Mortgage, 361. 
 
 Contempt, 
 
 process of, 54, 
 
 Contingent Debts, 1, 214, 295. 
 
 Contracts, 
 what, 139. 
 principal money, 166. 
 
 Contribution, 
 
 between judgment creditors, 75. 
 judgm.ent debtors, 95. 
 sureties, 199. 
 co-trustees, 178. 
 partners, 248. 
 shareholders, 249, 250. 
 co-committee-men, 122, 256. 
 
 Contributory, 240. 
 
 Conversion of Debts, 102. 
 
 Coparcenary, 
 what, 31. 
 lands in, liable to judgment, ib., 39. 
 
 Copyholds, 
 
 mortgage of, 335. 
 do not pass on bankruptcy, 84. 
 not within Stat, of Uses, 336. 
 Stat, de Donis, ib. 
 
 Corporations proper, 
 judgments against, 
 sole, 
 
 archbishops, 126. 
 
 archdeacons, ib. 
 
 bishops, ib. 
 
 canons, 127. 
 
 Crown, 127, 140. 
 
 dean, 127. 
 
 perpetual curates, 126. 
 
 rector (lay), 127. 
 
 rector (spiritual) or vicar, 124, 125.
 
 INDEX. 
 
 505 
 
 Corporations proper — continued, 
 judgments against — continued. 
 aggregate, 
 
 dean and chapter, 128. 
 
 eleemosynary, 130. 
 
 guardians (poor-law), 129. 
 
 municipal corporations, 128. 
 
 churchwardens, ib. 
 judgments by, 134. 
 contracts by, 23(). 
 mortgages by, 405. 
 mortgages to, 410. 
 how sued, 236. 
 how sue, 245. 
 
 Cost Book, 
 
 principle, what. 111. 
 
 Costs, 
 
 of judgment, 79. 
 
 of charging orders, 59. 
 
 of taxation, 168. 
 
 County Courts, 
 
 judgments of, 19. 
 
 rules of, 20. 
 
 registration of judgments of, 25. 
 
 jurisdiction of (see Courts). 
 
 County Uegistration, 24. 
 
 Court 
 
 of Law, 222. 
 
 of Equity, ib. 
 
 of Law and Equity, ib. 
 
 at Westminster, ib. 
 
 plaintiff's choice of, 221. 
 
 attorney's privilege, 220. 
 
 Inferior, 221. 
 
 Superior, ib. 
 
 Barmote, 472. 
 
 Baron, 223. 
 
 Borough and City, 222. 
 
 Cinque Ports, 225. 
 
 Common Pleas, 442. 
 
 (New) County, 448. 
 
 (Old) County, 450. 
 
 Exchequer, 442. 
 
 Hundred and Manor, 223. 
 
 London, 
 
 Hustings, 224, 490. 
 
 Mayor's, 460, 484. 
 
 Sheriff's, 448. 
 Nisi Prius, 442. 
 Palatine, 444, 480. 
 Queen's Bench, 442. 
 of Requests, 223. 
 Stannary, 446. 
 
 Covenants, 
 what, 147. 
 voluntary, ib. 
 for further assurance, 148. 
 with penalty, 149. 
 within 8 & 9 Will. 3, ib. 
 stamp on, 150. 
 
 Creditoks, 
 defined, 
 
 in England, 1. 
 by French law, 2. 
 
 Creditors — continued. 
 suit (general), 296. 
 
 may be immediate, 315. 
 suit (single), 296. 
 
 against what, registration of judgments 
 necessary, 27. 
 
 Crown, 
 
 a lay corporation sole, 127. 
 debts, 
 
 within 33 Hen. 8.. 429. 
 
 what lands extendible, 430. 
 what lands not extendible, 431. 
 lands when bound, 431. 
 Crown V. purchaser, 431. 
 within 13 Eliz., 
 
 who are accountants, 433, 434. 
 Crown V. purchasers, 431. 
 other simple contract debts, 434. 
 " office found," 435. 
 extent in chief and second de- 
 gree, 432. 
 extent in aid, 437. 
 order of payment in administra- 
 tion of assets, 300, 437. 
 " diem clausit extremum," what, 
 
 437. 
 Crown V. purchaser, 436. 
 Crown V. bankruptcy assignees, 
 ib. 
 Curtesy, 
 
 tenant by, v. creditors, 285, 293. 
 
 Customary Freeholds, 
 what, 336. 
 
 Damages, 
 
 distinguished from debt, 2. 
 may be ascertained by a Common Law 
 Master, 169. 
 
 DE bonis PROPRIIS, 
 
 judgment of, what, 287. 
 
 De bonis testatoris, 
 
 judgment of, what, 276. 
 
 Debenture, 
 notes, 146. 
 mortgages, ib. 
 
 Debts, 
 
 defined, 
 
 in England, 1. 
 
 in France, 2. 
 classified, ib. 
 order of payment, 
 
 out of personal assets, 300. 
 
 out of legal real assets, 303. 
 
 out of ecjuitable assets, 304. 
 
 out of foreign assets, 303. 
 mortgage of, 347. 
 assignment of (see Assignment). 
 Crown (see Crown). 
 
 Declaration oi- Trust, 
 of debt, 184. 
 in mortgages, 408. 
 
 Decrees, 
 
 of High Court, 6, 15. 
 
 of Lancaster Chancery, 6, 18.
 
 506 
 
 INDEX. 
 
 Decrees — continued. 
 
 of Durham Chancery, 18. 
 
 of Inferior Equity Courts, 16. 
 
 of Duchy Chamber of Lancaster, ib. 
 
 of Stannary Equity Court, 20. 
 
 when binding, 22, 23. 
 
 removal of, 
 
 Lancaster, 18. 
 Durham, ib. 
 Lord Mayor's, 16. 
 Stannary, 20. 
 
 Inferior Courts generally, 16. 
 registration of, 
 High Court, 
 
 in Common Pleas, 24. 
 when in Register County, ib. 
 when in County Palatine, ib. 
 Duchy Chamber, 25. 
 Palatine, ib. 
 
 Inferior Courts of Equity, ib. 
 what property liable to, in 
 High Court, 
 
 personalty in possession, 40. 
 
 in action, ib. 
 realty and chattels real, 37 — 39. 
 Palatine, 41, 480, 481. 
 Stannary, 482, 483. 
 Lord Mayor's, 484. 
 Duchy Chamber, 478. 
 other Inferior Courts, 482, 484. 
 House of Lords, 496, 497. 
 Privy Council, ib. 
 remedies, 
 
 V. person, 
 
 attachment, 64, 65, 475, 477. 
 Serjeant at arms, ib. 
 sequestration, ib. 
 V. choses in action, 
 
 charging order, 57 — 59. 
 stop order, 58. 
 V. personalty in possession, 
 account, 57. 
 sale, ib. 
 discovery, 59. 
 receiver, 60. 
 V. realty and chattels real, 60 — 62. 
 
 Deed Poll, 
 
 what, 140. 
 
 Default, 
 
 of appearacce, 11. 
 
 for want of plea, 12. 
 
 for want of a rejoinder, 13. 
 
 in executor, what, 311. 
 
 Df.l credere, 
 what, 201. 
 Delegatus, 
 
 non potest delegare, 200. 
 Delivery, 
 
 of choses in possession, 
 necessary, 372. 
 not in mortgages, ib. 
 of dock warrants, 1 82. 
 of choses in action, 171, 180, 188. 
 
 notice equivalent to, 387. 
 of bills of lading, 182. 
 of bills of exchange, 172, 173. 
 
 Demurrer, 
 
 judgment on, generally, 13. 
 
 to plea in abatement, ib. 
 
 Denizen, 
 who, 267. 
 
 Deposit, 
 
 mortgage by, 340. 
 agreement to, ib. 
 to prepare a legal mortgage, ib. 
 remedy of mortgage by, 364. 
 
 " Dbtinet," 
 
 in the, what, 208. 
 
 Detinue, 
 
 action of, 357. 
 
 DEFASTAriT, 
 
 what, 309. 
 
 a simple contract debt, 178. 
 
 in what order paid, 301. 
 
 legal, 325, 310. 
 
 equitable, 310. 
 
 interest on, 313. 
 
 by feme executrix, 326. 
 
 by husband of feme executrix, 327. 
 
 Devisee, 
 
 of mortgagor, 
 
 exoneration of, 389. 
 
 t). judgment creditor. 111. 
 
 i;. specialty, 286. 
 Diem cla usit extremvm, 
 
 what, 427. 
 
 Dilapidations, 
 
 order of payment of, 
 
 out of legal assets, 301. 
 out of equitable assets, 304. 
 Discovery, 
 
 in aid offi.fa., 59. 
 of elegit, 61. 
 
 Dishonour, 
 
 of bill or note, 174. 
 
 Dissolution, 
 
 of un-incorporate partnerships, 
 causes of, 100. 
 effect of, 101. 
 of corporations proper, 130. 
 of quasi-corporations (see Bankruptcy and 
 Winding up). 
 
 Distress, 
 
 by landlord, 152. 
 
 by executors of lessor, ib. 
 
 for double rent, ib. 
 
 for goods fraudulently removed, 153. 
 
 by mortgagee, 353. 
 
 by owner of rent-charge, 423. 
 
 by execution creditor, 50. 
 
 Distringas, 
 
 equitable, 368. 
 
 legal, 49. 
 
 against a corporation, 65. 
 
 Dock Warrants, 
 
 how transferred, 182. 
 
 DOMICIL, 
 
 as affecting administration of assets, 304.
 
 INDEX. 
 
 507 
 
 Donatio mortis cavsa, 
 what, 191. 
 
 Double 
 
 value of goods, 154. 
 rent, ib. 
 yearly value, ib. 
 
 DownEss 
 
 D. judgment creditor, 285. 
 V. specialty and simple contract creditors, 
 293, 297. 
 
 Drainage Acts, 
 
 mortgages under, 396. 
 
 " Due course of Administration," 
 what, 116, 300. 
 
 Durham, 
 
 decrees and orders, 6, 481. 
 rules, 6, 445. 
 judgments, ib. 
 
 East India 
 stock, 182. 
 bonds, 181,346. 
 
 Ejectment 
 
 by landlord, 156. 
 by mortgagee, 355. 
 by rent-owner, 423. 
 by elegit creditor, 50. 
 
 Election, 
 
 doctrine of, does not apply to creditors, 
 
 362. 
 to sue at law or in equity, 220. 
 
 Eleemosynary Corporations (see Corpora- 
 tions), 
 
 Elegit, 
 
 legal, 48, 50. 
 equitable, 59. 
 bankruptcy, 487. 
 tenancy by, a chattel, 32. 
 
 Emblements, 
 
 substitute for, 155. 
 
 Entry 
 
 by landlord, 153. 
 by mortgagee, 350. 
 by rent-owner, 423. 
 by executor, 308. 
 
 Equitable 
 
 assets, 272. 
 mortgage, 338. 
 
 Equity 
 
 acts in personam, 400, 474. 
 except in case of feme coverte, ib. 
 jurisdiction of Courts of, in debt, 474. 
 of redemption, 
 
 not extendible, 33. 
 
 chargeable in equity by judgment, 37. 
 
 transfer of, 
 
 inter vivos, 383. 
 by death of mortgagor, 388. 
 legal assets, 270. 
 
 subject to dower and curtesy, 383. 
 entailable and devisable, ib. 
 
 Error 
 
 in law, 45. 
 
 in fact, 46. 
 Escheat, 
 
 what, 387. 
 
 ESTRAYS, 
 
 what, 435. 
 Exceptions, 
 
 bill of, 46. 
 Exchequer 
 bonds, 181. 
 bills, ib. 
 
 Court of, 220, 442. 
 Exchequer Chamber, 
 
 Court of, 492. 
 Exclusive (see Jurisdiction). 
 Execution, 
 
 staying of legal, 46. 
 
 equitable, 47. 
 (see Ca. sa., Fi. fa., Elegit, Venditioni ex- 
 ponas). 
 Executor, 
 of creditor, 
 
 by judgment, 
 revivor by, 
 
 sole executor, 76. 
 co-executor, ib. 
 executor of executor, ib. 
 by specialty and simple contract, 
 judicial remedies, 
 at law, 
 
 " case," 155. 
 death of creditor before 
 action, 
 
 in Superior Courts, 
 
 208. 
 in County Courts, 
 ib. 
 death during action, 209. 
 in equity, 
 
 death before suit, 209, 
 during suit, ib. 
 sole creditor, ib. 
 several creditors, ib. 
 co-executor, ib. 
 non- judicial remedy, 
 distress, 152. 
 by mortgage, 409. 
 mortgage to, 409. 
 of debtor, 
 
 by judgment, 
 
 remedies against, at law, 281. 
 
 in equity, 283. 
 by specialty or simple contract, 
 remedies against, at law, 
 
 judgment de bonis propriis, 
 287. 
 de bonis testatoris, 
 
 288. 
 of assets infuturo, 
 
 287. 
 in County Courts, 
 289. 
 remedies in equity, 296. 
 
 indemnity under Sir G. Tur~ 
 
 ner's Act, 297. 
 petition for advice, 298.
 
 508 
 
 INDEX. 
 
 Executor — continued. 
 of debtor — continued. 
 
 by mortgage, 394, 395. 
 mortgage by, 394. 
 of partner un-incorporate, 
 
 at law, 317. 
 
 in equity, ib. 
 of shareholder, 
 
 in companies within J. S. Acts, 319. 
 
 in companies within W.-U. Acts, 321. 
 
 in banks within 7 Geo. 4, ib. 
 
 in companies within 8 & 9 Vict. c. 16, 
 323. 
 
 in insurance companies, 322. 
 bankrupt, 312. 
 lunatic, 231. 
 notice to. 234. 
 notice by, ib. 
 receipts by, ib. 
 ri^ht of preference, 277. 
 retainer, ib. 
 de son tort, 327. 
 
 liability of, 
 
 at law, ib. 
 in equity, ib, 
 
 how sued, ib. 
 judgment v. executor, 276. 
 
 ExiGI FACIAS, 
 
 what, 54. 
 
 Exoneration 
 of heir, 389. 
 of devisee, 390. 
 of legatee, ib. 
 
 Extent, 
 
 in chief, what, 432. 
 
 in first, &c. degree, ib. 
 in aid, 437. 
 
 Factors, 
 
 who, 201. 
 
 Feme coverte, 
 creditor, 
 
 judgment by husband and wife, 131. 
 by wife, ib. 
 dum sola, ib. 
 by specialty and simple contract, 
 remedies at law, 
 
 during coverture, 258. 
 after death of wife, ib. 
 
 of husband, ib. 
 remedies in equity, 
 
 equity to settlement, 259. 
 non-anticipation by, 260. 
 mortgagee, 407. 
 payee of bill, 174. 
 debtor, 
 
 judgment against husband and wife, 
 94. 
 
 dum sola, ib. 
 against wife, ib. 
 specialties of, 261. 
 simple contracts of, 262. 
 verbal engagements of, ib. 
 appointment by, 33. 
 no personal decree against, 294, 400. 
 
 Feme coverte — continued. 
 debtor — continued. 
 
 heir and husband not liable after her 
 
 death, 294. 
 not within Statute of Limitations, 314. 
 mortgages by, 
 
 separate estate, 400. 
 estate not settled to separate use, 
 realty, 397. 
 chattels real, ib. 
 chases in action of wife, 399. 
 
 reduction into possession, 
 132, 398. 
 choses in possession, 398. 
 agent, when, of husband, 260. 
 executrix, 326. 
 deed of separation, 261. 
 actions and suits against, after death of 
 
 husband, 324. 
 actions and suits against husband after 
 death of wife, ib. 
 
 Fl. FA., 
 
 legal ordinary, 48. 
 
 de bonis ecclesiasticis, 124. 
 equitable ordinary, 55. 
 
 de bonis ecclesiasticis, 125. 
 bankruptcy, 487. 
 
 Final Judgment (see Judgment). 
 
 Fixtures, 
 
 mortgage of premises with, 67. 
 bill of sale of, 344, 371. 
 
 Forcible entry, 
 what, 153. 
 detainer, ib. 
 
 Foreclosure 
 decree, 
 
 not a judgment, 7. 
 what, 359. 
 
 whether the remedy of a judgment 
 creditor, 82. 
 
 Foreign 
 
 judgment, 21. 
 assets, 303. 
 bills and notes, 171. 
 attachment, 461. 
 
 Forfeiture 
 
 for non-payment of rent, 154, 155. 
 relieved against, ib. 
 
 Forms of Actions, 
 
 not abolished, 149, 167. 
 
 Fraudulent 
 
 preference, 14, 83. 
 judgment, 144. 
 conveyances, 240. 
 mortgage, 339. 
 execution, 115. 
 
 Freebench, 
 
 V. specialty or simple contract creditor, 293. 
 
 Freight, 
 
 what in sea policies, 162.
 
 INDEX. 
 
 )09 
 
 Frikndly Societies, 
 how sued, 237. 
 how sue, 248. 
 
 Fund in Court, 
 
 mortgage of, 348. 
 
 remedies of mortgagee, 368, 3G9. 
 
 priorities of mortgagee, 383, 384, 386. 
 
 Funeral Expenses, 
 
 executors liable for, 308. 
 order of payment of, 300. 
 
 Games, 
 
 illegal, 144. 
 
 Garnishee 
 
 clauses under C. L. P. Act, 1852.. 35, 49. 
 extend to Palatine Courts, 36. 
 
 Government Annuities, 182. 
 
 Ground-rents, 335. 
 
 Guaranty, 
 what, 197. 
 must be written, 165. 
 
 Guardian, 
 
 poor law, 129. 
 of infants, 263. 
 ad litem, ib. 
 
 Health (Public) Acts, 
 mortgages under, 405. 
 
 Heir, 
 
 judgment creditor v., 281. 
 
 of covenantor, 285. 
 
 of deceased co-obligor, 324. 
 
 of covenantee, 208. 
 
 specialty and simple contract creditor v., 
 
 285. 
 exoneration of, 389. 
 
 expectancy of, whether mortgagable, 331. 
 tacking against, 385. 
 party to real asset suit, 292. 
 
 Holder of Bill, 173. 
 
 Hundred Courts, 223, 462. 
 
 Husband and Wife (see Feme Coverte). 
 
 Hustings, Court of, 224, 490. 
 
 lOU, 
 
 what, 176. 
 
 Idiot, 
 
 debtor (see Non Compos). 
 creditor (see Non Compos). 
 
 Implied 
 
 powers in mortgages, 393. 
 covenants, 148. 
 warranties, 162. 
 
 Imprisoned Debtors (see Insolvents), 86, 88 
 
 7iV PERSONAM, 
 
 decrees operate, 400. 
 
 except as against/e/nes covertes, 400. 
 
 In rem, 
 
 judgments operate, 400. 
 admiralty decrees operate, 428. 
 equity does not operate, 400. 
 
 Incipitur, 
 
 of judgment, what, 23. 
 
 Inclosure (General) Act, 
 mortgages under, 396. 
 
 Indisputable Policies, 160. 
 
 Indorsement 
 
 of bills and notes, 
 what, 172. 
 in blank, what, ib. 
 in full, what, ib. 
 
 Infant 
 debtor, 
 
 necessaries, 263. 
 ratification by, ib. 
 father and guardian of, ib. 
 how sued, 
 
 at law, ib. 
 in equity, ib. 
 representative of mortgagor, 331. 
 executor, ib. 
 creditor, 
 
 how sues, 
 
 at law, 264. 
 in equity, ib. 
 two suits for, ib. 
 heir of mortgagee, 331. 
 
 Inferior Courts, 221. 
 
 Injunction, 
 
 by executor against creditor, 296. 
 where equity will not grant, against cre- 
 ditor, ib. 
 to stay trial, 46. 
 to stay judgment, ib. 
 to stay execution, ib. 
 to stay money in sheriff's hands, ib. 
 to stay delivery of possession, ib. 
 
 Inland Bill, 
 what, 171. 
 
 Insolvency, 
 what, 85. 
 
 Insolvent, 
 
 judgments v. 
 
 within 1 & 2 Vict., 87. 
 
 within Protection Acts, 88. 
 judgments bv, 
 
 within 1 & 2 Vict., 91. 
 
 within Protection Acts, 92. 
 specialty and simple contract debts due 
 from, 
 
 within 1 & 2 Vict., 214. 
 
 within Protection Acts, 216. 
 specialty and simple contract debts due to, 
 
 within 1 & 2 Vict., 218. 
 
 within Protection Acts, ib. 
 clergymen, judgments v., 125, 126. 
 
 Inspection, 
 
 deed of, 252.
 
 510 
 
 INDEX. 
 
 Insurance, 
 
 what, 114, 159. 
 policy of (see Policy). 
 companies, 
 
 are within 7 & 8 Vict. c. 110,. 114. 
 
 excepted from J. S. Acts, ib, 
 
 mortgages by, 404. 
 
 mortgages to, 410. 
 
 judgments v., 105. 
 
 judgments by, 133. 
 
 Interest, 
 
 what debts carry, at law, 304. 
 on judgments, 78. 
 
 arrears, 79. 
 on annuities, 426. 
 on specialties, 205. 
 
 arrears of, 205, 206. 
 on simple contract debts, 207. 
 on bills, ib, 
 
 on debts proved in creditor's suit, 305. 
 voluntary payment of, by executor, 305. 
 on devastavits, 313. 
 
 Interpleader, 
 
 by executor of judgment debtor, 78. 
 for defendant, 428. 
 for sheritf, ib. 
 
 Ireland, 
 
 when within the jurisdiction, 12. 
 registration of judgments in, 26. 
 
 Joint 
 
 creditors generally, 226. 
 
 and several creditors generally, ib. 
 
 debtors generally, ib. 
 
 and several debtors generally, 178, 226. 
 
 judgment creditors, 
 
 not partners, 131, 132. 
 partners, 
 
 un- incorporate (see Partnerships). 
 quasi-corporate (see Quasi- Corpo- 
 rations ). 
 corporate (see Corpora/ions^ro/jcr). 
 judgment debtors, 
 
 not partners, 94, 95, 96. 
 partners, 
 
 un -incorporate (see Partnerships). 
 quasi-corporate (see Quasi-Corpo- 
 
 ralions). 
 wholly corporate (see Corporations 
 proper). 
 and separate estate, 98. 
 and separate creditors, ib. 
 bankruptcy, 103, 245. 
 stock company defined, 108. 
 stock banks, ib. 
 
 Joint Tenant, 
 
 V. judgment creditor, 31, 32, 39. 
 
 Judgments, 
 
 by and against one, 
 creation of, 
 
 generally, what, 6. 
 
 what, within 1 & 2 Vict., ib. 
 
 when signed, 23. 
 
 final, 6, 11. 
 
 Judgments — continued. 
 by and against one, 
 creation of, 
 
 non-adverse, 
 
 on warrant of attorney, 7. 
 on cognovit actionem, ib. 
 on judge's order, ib. 
 on non sum informatus, ib. 
 adverse, 
 
 by default, 11. 
 on nolle prosequi, 13. 
 on a no7i prosequitur, ib. 
 on a nonsuit, ib. 
 on a retraxit, ib. 
 on verdict, ib. 
 on demurrer, ib. 
 on nul tiel record, 14. 
 on trial without pleadings, ib. 
 on action on bill of exchange, 
 8, 175. 
 fraudulent, 14, 31. 
 Durham, 17. 
 Lancaster, ib. 
 voluntary, 14. 
 foreign, 21. 
 County Court, 19. 
 Inferior Courts generally, 21. 
 non obstante veredicto, 42. 
 arrest of, 43. 
 de bonis proprits, 287. 
 de bonis testatoris, 276. 
 setting aside, 46. 
 staying, ib. 
 
 of assets in futuro, 287. 
 pendente lite, 64. 
 cross, 197. 
 
 creditor not a purchaser within 
 27 Eliz., 62. 
 interest on, 78. 
 costs of, 79. 
 removal of, 
 
 Palatine generally, 16. 
 Lancaster, 17. 
 Durham, ib. 
 Stannary, 20. 
 
 within 1&2 Vict. c.l 10, S.22..19. 
 Inferior generally, 21. 
 County Courts, 19. 
 registration of, 
 
 against whom necessary, 24. 
 against what property neces- 
 sary, ib. 
 not notice, 27. 
 County, 24. 
 when binding, 
 
 on personalty, 
 
 in possession, 22. 
 chose s in action, ib. 
 on realty, ib. 
 on chattels real, 23. 
 what property liable to, 
 
 realty and chattels real, 
 at law, 2!), 32. 
 in equity, 39. 
 personalty in possession, 
 at law, 33. 
 in equity, 40.
 
 INDEX. 
 
 511 
 
 JwcMZurs— continued. 
 by and against one, 
 
 what property liable to, . 
 chases in action, 
 at law, 34. 
 in equity, 40. 
 effects of, how prevented, 
 at law, 
 
 by plaintiff, 43. 
 by defenilant, ib. 
 by plaintiff or defendant, 
 44. 
 in equity, 46. 
 remedies on, in vitd debitoris, 
 V. person, 
 
 ca. sa., 52. 
 
 action on judgment, 51. 
 t». property, 
 
 realty and chattels real, 
 at law, 50. 
 
 in equity, 50, 60 — 62. 
 receiver, 60, 61. 
 discovery, 59, 61. 
 personalty in possession, 
 at law, 48. 
 in equity, 57. 
 choses in action, 
 at law, 
 
 charging order, 94, 59. 
 in equity, 
 
 charging order, 58. 
 stop order, ib. 
 assignment of, 77, 199, 
 satisfaction of, 80. 
 against bankrupt (see Bankrupt), 
 dum sola, 94. 
 against wife, ib. 
 by wife, 131. 
 V. several, 
 
 not partners, 
 
 husband and wife (see Feme Co- 
 ver te). 
 during joint lives, 95. 
 after death of one, 96. 
 partners, 
 
 un-iiicorporate, 
 
 before dissolution, 97. 
 joint creditors, 98. 
 separate creditors, ib. 
 after dissolution, 100, 
 
 equities of partners, 101. 
 5un«i-corporate, 
 
 before dissolution or its equi- 
 valents, 
 
 V. companies within J. S. 
 
 Acts, 105. 
 V. banking companies, 108, 
 
 109. 
 V, mining companies. 111. 
 V. companies within 8 & 9 
 
 Vict. c. 16.. 112. 
 V. companies within 7 Will. 
 
 4& 1 Vict.c. 73.. 113. 
 V. insurance companies, 114. 
 after dissolution or its equiva- 
 lents, 115. 
 V. corporations (see Corporations). 
 
 J VDGMEliTS— continued. 
 by several, 
 solvent, 
 
 by husband and wife, 
 
 during coverture, 131. 
 after, 132. 
 by un-incorporate partners or 
 
 non-partners, 133. 
 by quasi-corporate partnerships, 
 
 ib. 
 by corporations proper, 135. 
 not solvent, 
 
 by non-partners, 135. 
 remedies on, post mortem debitoris, 
 V. heir and devisee, 281. 
 t'. alienee of heir or devisee, 282. 
 V. dowress, ib. 
 
 V. tenant by curtesy, ib., 285. 
 V. purchaser from executor, 282. 
 V. executor, 276. 
 judgments inter se, 284. 
 judgment v. specialty and simple con- 
 tract, 283. 
 judgment v, mortgagee, 61. 
 
 Judge's Order, 
 
 judgment on, 7, 10. 
 
 Judgment Debtor, 
 remedies of, 134. 
 summons, 53. 
 
 Jurisdiction 
 
 of High Court of Chancery, 
 concurrent, 
 
 with Court of Bankruptcy, 84. 
 Insolvent Debtors Courts, 90, 
 Inferior Equity Courts, 474, 
 
 482. 
 Duchy Chamber, 478. 
 Lancaster Chancery, 480. 
 Durham Chancery, ib. 
 Common Law Courts, 
 Home, 476. 
 Foreign, 474. 
 exclusive, ib. 
 ancillary, ib. 
 restrictive, ib. 
 of Westminster Common Law Courts, 
 concurrent, 
 
 with Palatine Common Law 
 
 Courts, 444. 
 with Inferior Courts, 442. 
 with High Court of Chancery, 476. 
 exclusive, 442. 
 
 Lancaster, 
 
 Common Pleas, 
 
 judgments, 37. 
 
 rules, 37. 
 
 decrees and orders, 15. 
 Duchy Chamber of, 
 
 decrees and orders, 16. 
 
 Lands Clauses Act, 
 
 redemption under, 402.
 
 512 
 
 INDEX. 
 
 Land Tax, 
 
 redemption of, 395. 
 Landlord, 
 
 remedies of (see Rent). 
 Lay, 
 
 rectories and tithes, 37. 
 
 liable to judgments, 29. 
 
 corporations, 11. ' 
 
 aggregate, 128. 
 sole, 127. 
 Legacy, 
 
 mortgage of, S-iS. 
 
 money not recoverable at law, 299. 
 
 remedies of mortgagee of, 370. 
 
 to debtor, SOCi. 
 Legal, 
 
 debt, what, 179. 
 
 mortgage, what, 333. 
 assets, 269, 271. 
 Letter 
 
 of licence, 252. 
 
 Letter of Attorney, 9. 
 
 Letters Patent, 
 
 what, 114. 
 Levari facias, 
 
 what, 55, 124. 
 Lien, 
 
 particular, 193. 
 
 general, ib. 
 
 solicitor's and attorney's, 195. 
 
 assignable, ib. 
 at law, 193. 
 in equity, 194. 
 vendor's, 342. 
 
 limited liability (see Companies within 
 J. S. Acts, 1856, 1857). 
 
 Liquidated Damages, 
 
 what, 141. 
 
 on bonds, ib. 
 
 on covenants, 149. 
 Lis pekdEi\s, 
 
 what, 386. 
 
 registration of, ib. 
 
 Lord Mayor's Court (see Courts). 
 
 Lunatic, 
 
 debtor (see Non Compos). 
 
 creditor ( ibid). 
 
 executor (see Executor), 342. 
 
 mortgagor, ib. 
 
 mortgagee, ib. 
 
 trustee, 231. 
 
 j^janor Courts, 462. 
 Marshalling, 
 
 in administration of assets, 
 creditors inter se, 298. 
 creditors v. legatees, 299. 
 inter vivos, 
 
 mortgagees, 362. 
 wife's securities, 401. 
 Masters, 
 
 in Chancery, 
 
 present state of, 136. 
 winding-up jurisdiction, 136. 
 
 Masters — continued. 
 of ships, 177, 194. 
 and servants, 201, 302. 
 Maxims, 
 
 actio personalis moritur cum persona, 208. 
 debitum in prcesenti, solvendum in futuro, 1. 
 delegatiis 7ion potest delegare, 200. 
 ex nudo pacta non oritur actio, 31. 
 expressio unius est exclusio alterius, 32. 
 frustra peteret quod mox restiturus esset, 247. 
 he who would have equity must do equity, 
 
 75, 259. 
 in equity all debts are equal, 272, 275. 
 jus accrescendi prcefertur oneribus, 31. 
 one should be just before he is generous, 
 
 279. 
 qui facit per alium facit per se, 201. 
 qui prior est tempore potior est jure, 385. 
 
 Mayor's, 
 
 London Courts (see Courts). 
 
 Mesne 
 
 process, 192. 
 profits, 157. 
 
 Mining Companies, 
 
 within Stannaries, 111. 
 
 not within, ib. 
 
 on cost-book principle, ib. 
 
 Month, 302. 
 
 Mortgage, 
 what, 329. 
 by and to one, 
 
 legal, what, 333. 
 
 of reversion or remainder, 338. 
 of ground rent, 334. 
 of freeholds, 
 
 by tenant in fee, 335. 
 by tenant in tail, ib. 
 of copyholds, 336. 
 of leaseholds, 337. 
 of advowsons, 336. 
 Welsh, 337. 
 equitable, what, 338. 
 
 of equity of redemption, ib. 
 by deposit, 338. 
 by equitable charge, 341. 
 by equitable owner, ib, 
 vendor's lien, 342. 
 purchaser's lien, ib, 
 registration of, 335. 
 of personalty, 
 
 in possession, 
 at law, 343. 
 in equity, ib. 
 
 possession and registration, 344. 
 ships, 345. 
 in action, 
 
 stock, 346. 
 
 in possession, ib. 
 in reversion, ib, 
 of debts, 347. 
 of shares, ib. 
 of policies, 3^8. 
 of fund in Court, ib. 
 of legacy or residue, ib.
 
 INDEX. 
 
 513 
 
 Mortgage — continued, 
 stamps on, S'lO. 
 
 consolidated, 361. 
 transfer of, 
 
 legal mortgage of land, 
 inter vivos, 378. 
 by will, 381. 
 equitable mortgage of land, 
 
 379. 
 mortgage of personalty in pos- 
 session, 380. 
 
 Mortgagee, 
 remedies of, 
 of land, 
 
 legal mortgagee, 
 
 non-judicial remedies, 
 
 entry and possession, 350. 
 mortgagee v. mort- 
 gagor, 351. 
 mortgagee v. prior 
 
 lessee, ib. 
 mortgagee v. subse- 
 quent lessee, 352. 
 mortgagee of tolls, ib. 
 receiver, ib. 
 voluntary payment, 
 353. 
 sale, ib. 
 distress, ih. 
 judicial, 
 at law, 
 
 action of debt or co- 
 venant, 357. 
 ejectment, 355. 
 possession byCounty 
 
 Courts, 357. . 
 trover, ib. 
 detinue, ib. 
 in equity, 
 
 foreclosure, 359. 
 redemption, 360. 
 sale under the Court, 
 
 ib. 
 tacking, 361. 
 mortgagee of ad- 
 vowson, 336, 365. 
 equitable mortgagee, 
 
 of equity of redemption, 363. 
 foreclosure, 364. 
 sale, ib. 
 receiver, ib. 
 by deposit, 
 
 simple deposit, ib. 
 foreclosure, ib. 
 sale, ib. 
 receiver, ib. 
 with agreement, ib. 
 vendor for lien, 365. 
 purchaser for lien, ib. 
 by equitable cliarge, ib. 
 rights of representatives of mortgagee, 
 vesting order, 382. 
 of personalty, 
 
 choses in action, 
 stock, 
 
 in possession, 366. 
 in reversion, ib. 
 
 Mortgagee — continued. 
 of personalty, 
 
 choses in action, 
 stock, 
 
 distringas, 367. 
 restraining order, 368. 
 policy, * 
 
 judicial remedy, ib, 
 non-judicial, ib. 
 fund in Court, 
 
 stop order, 369. 
 payment out, ib. 
 shares, 369. 
 
 legacies and residues, 370. 
 Mortgagor, 
 remedies of, 
 of land, 
 
 redemption, 354, 356. 
 of personalty, 
 
 choses in action, 
 
 redemption, 366, 367. 
 in possession, 
 
 redemption, 373. 
 
 Mortmain Acts, 
 
 debentures within, 146. 
 
 not within, ib. 
 
 Municipal Corporations, 
 mortgage by, 405. 
 to, 410. 
 judgments against, 128. 
 by, 134. 
 Mutual 
 
 insurance companies, what, 161. 
 
 Naturalization, 267. 
 
 Ne exeat regno, 193, 283, 296. 
 
 Negotiable, 
 
 instrument, when, 170- 
 
 New Trial, 44. 
 
 New York, 
 
 judgment, 6. 
 
 Nihil dicit, 
 what, 8. 
 
 Nisi Privs, 
 
 Courts of, 442. 
 
 Nolle prosequi, 13. 
 
 Non-adverse Judgments, 7. 
 
 Non-anticipation, 260. 
 
 Noy-coMi'OS, 264. 
 who is, 264. 
 debtor, 475. 
 
 necessaries, 265. 
 specialty by, ib. 
 simple contract by, ib. 
 how sued, 
 
 at law, ib. 
 in equity, ib. 
 creditor, 475. 
 at law, 266. 
 in equity, ib. 
 
 NoPf OBSTANTE VEREDICTO^ 42. 
 
 L L
 
 514 
 
 INDEX. 
 
 non prosequitur, 13. 
 
 Nonsuit, 
 
 judgment on, what, 13. 
 motion to set aside, 43. 
 
 Notice, 
 
 doctrine of, 384. 
 
 on assignment of debts, 
 
 to debtor, 180, 183, 186, 189. 
 
 to trustee of assignor, 188. 
 
 equivalent to delivery, 180. 
 
 of interest by creditor, 206. 
 on assignments of mortgages, 
 
 by one of several trustees, 232, 409. 
 
 to mortgagor, 379 — 381. 
 
 to trustee of assignor, 342, 381. 
 
 to one of several trustees, 232, 409. 
 
 to executors, 234. 
 
 by executors, 26, 234. 
 to executor of debtor, 276. 
 of registration of writ of execution, 27. 
 by mortgagee to tenants, 352. 
 
 " Office Found," 54, 435. 
 Officer of Court, 
 
 privilege of, 220. 
 Official 
 
 assignees (see Assignees). 
 
 manager, 118, 246. 
 
 liquidator, 135, 250. 
 Orders 
 
 of High Court, 15. 
 
 Stannary, 20. 
 (See Decrees). 
 
 Outlawry, 
 
 civil, 54. 
 
 criminal, 54. 
 Overseer, 
 
 mortgages by, 406. 
 
 Paraphernalia, 
 
 mortgage of, 398. 
 
 widow and heir of mortgagor, 389» 
 
 Parliamentary CoMPArfiEs, 
 what, 112. 
 may register under Joint Stock Acts, 16. 
 
 Parol, 
 
 what, 164. 
 
 Parson, 
 
 spiritual (see Corporations'). 
 lay (see Corporations). 
 
 Part Owners, 
 of ship, 
 
 assignee of v, seaman for his wages, 
 
 178. 
 how far creditors, 194. 
 are tenants in common, ib. 
 
 Parties, 
 
 to suits by judgment creditor, 
 general rule, 63. 
 prior mortgagees, 63. 
 subsequent judgment creditors, 64. 
 
 P A R T I e s — con tinned. 
 
 to actions by joint creditors, 
 
 by joint and several creditors, 227. 
 against joint debtors, 228. 
 against joint and several debtors, 229. 
 to assets suits, 
 
 personal, 290, 291. 
 real, 
 
 heir, 292. 
 
 devisee, ib. 
 
 legatees and annuitants, 293. 
 
 Attorney-General, ib. 
 
 lord, ib. 
 
 mortgagees, ib. 
 
 judgment creditors, ib. 
 to mortgage suits, 
 
 as regards mortgagees, 
 
 mortgagee bankrupt, 412. 
 
 cestui que trust, ib. 
 
 assignee, ib. 
 
 sub-mortgagee, ib. 
 
 judgment creditors, 64. 
 
 second mortgagee, 412. 
 
 executor, ib. 
 
 heir, ib. 
 
 devisee, 413. 
 
 several mortgagees, ib. 
 as regards mortgagors, 
 
 bankrupt mortgagor, 414. 
 
 puisne mortgagees, ib. 
 
 judgment creditors, ib. 
 
 assignees of mortgagor, 415. 
 
 legatees, ib. 
 
 executors, ib. 
 
 devisee, ib. 
 
 heir, ib. 
 
 several mortgagors, ib. 
 
 Partnerships, 
 defined, 97. 
 classified, ib. 
 dissolution of, 100. 
 quasi-corporate (see Companies). 
 corporate wholly (see Corporations proper), 
 no actions between partners, 247. 
 power to mortgage, 401. 
 
 to bind each other, 237. 
 contracts by, ib. 
 judgments against, 98. 
 
 by, 133. 
 contribution among (see Contributions). 
 bills and notes, 175. 
 
 Patenteed Companies, 
 what, 113. 
 may register, ib. 
 how sued, 237, 246. 
 judgments against, 113. 
 
 Pawnbrokers' Act, 376. 
 
 Pendente lite, 
 judgments, 64. 
 
 Perpetual Curates (see Corporations proper). 
 
 Personal 
 assets, 
 
 what, 268. 
 no decree against feme coverte, 400.
 
 INDEX. 
 
 515 
 
 Petition 
 
 of right, 439. 
 
 Pledge, 
 
 what, 344. 
 
 distinguished from mortgage, 345. 
 Pledgee, 
 
 remedies at law, 375. 
 in equity, ib. 
 may tack, 376- 
 non-judicial remedy, 375. 
 
 Pledgor, 
 
 remedies at law, 375. 
 in equity, ib. 
 Policies, 
 
 what, 159. 
 assignment of, 
 
 absolute (see Assignment of Debts), 
 by way of mortgage, 348. 
 
 remedies of mortgagee, 368. 
 maritime, 
 
 what, 161. 
 voyage and time, ib. 
 open and valued, 162. 
 life, 
 
 who may insure, 159. 
 assignee of, 160. 
 indisputable, ib. 
 fire, 
 
 14 Geo. 3, c. 78, ib. 
 when assignable, ib. 
 Pollicitation, 
 what, 164. 
 
 Post Obits, 
 what, 145. 
 
 Power, 
 
 to mortgage, 
 
 statutory, 395. 
 non-statutory, 396. 
 
 authorizes power to sell, 353. 
 of attorney, 10. 
 
 payments under void power, 171. 
 of appointment (see Appointment). 
 
 Preference 
 
 of creditors by executor, 276. 
 how determined, 
 at law, 277. 
 in equity, ib. 
 shares, 249. 
 Presentment 
 
 for acceptance, 173. 
 for payment, 174. 
 
 Principal (see Agent). 
 Priorities 
 
 of judgments, 
 
 as to personalty in possession, 
 judgment v. assignee, 66. 
 judgments inter se, 67. 
 judgment v. landlord, 34. 
 
 V. solicitor's lien, 195. 
 as to choses in action, 
 
 judgment v. prior assignee, 68. 
 
 V. subsequent equitable 
 mortgagee, ib. 
 inter se, 67. 
 
 Priorities — continued. 
 
 as to realty and chattels real, 
 at law, 
 
 judgment v. purchaser, 31. 
 V. appointee, ib. 
 in equity, 
 
 inter se, 74. 
 
 judgment v. purchaser with 
 notice, 70. 
 
 V. prior contractee, 71. 
 V. prior legal mortgagee, 
 
 ib. 
 V. prior equitable mort- 
 gagee, ib. 
 V. subsequent legal mort- 
 gagee, ib. 
 V. subsequent equitable 
 
 mortgagee, 72. 
 V. prior fraudulent ali- 
 enee, 30. 
 V. tenant in common, 32. 
 V. coparcener, ib. 
 V. creditors under ti'ust 
 
 deed, 73. 
 V. landlord, 34, 74. 
 V. joint tenant, 36. 
 unregistered judgment ». pur- 
 chaser, 74. 
 of mortgages 
 of land, 
 
 legal V. subsequent, 384. 
 legal V. prior with deeds, ib, 
 . equitable infer se, 385. 
 purchaser of equity of redemption 
 V. subsequent mortgagee, 385. 
 legal V, subseauent purchaser, 
 
 386. 
 equitable v. subsequent pur- 
 chaser, 386. 
 Crown V. equitable mortgagee, 
 
 387. 
 mortgagee v. prior contractee, 
 
 383. 
 mortgagee v. prior voluntary ali- 
 enee, ib. 
 of personalty 
 
 in possession, 
 
 mortgagee v. bankruptcy as- 
 signees, 373. 
 mortgagee v. execution cre- 
 ditors, 67. 
 mortgagee v. other creditors, 
 374. 
 of choses in action, 
 
 mortgagee v. execution cre- 
 ditors, 370. 
 mortgagee v. other creditors, 
 
 ib. 
 mortgagee v. bankruptcy as- 
 signees, 371. 
 of seaman's wages v. assignee of part owner, 
 178. 
 
 Privilege 
 
 of Parliament, 52. 
 of attorney, 220. 
 of oflBcer, 220. 
 
 ll2
 
 516 
 
 INDEX. 
 
 Privy 
 
 Council (Judicial Committee), 496. 
 
 purse, 439. 
 Proctor, 
 
 bill of costs of, 168. 
 Promise, 
 
 what, 164. 
 Promissory Notes, 174. 
 Promoters of Company, 
 
 liability of, inter se, 256. 
 
 to third parties, ib. 
 Protection Acts (see Insolvents), 
 
 Purchaser, 
 lien of, 194. 
 
 remedy of, for lien, 342. 
 without notice v. judgment creditor, 27, 32. 
 
 Quasi-Corporations, 
 
 what, 97, 105. 
 
 judgments against (see Companies). 
 
 judgments by, ib. 
 
 actions against, ib. 
 
 actions by, ib. 
 
 suits against, ib. 
 
 suits by, ib. 
 Queen Anne's Bounty, 
 
 mortgages to, 405, 410. 
 qvod recuperet, 7, 400. 
 
 Railways, 
 
 are not within W.-U. Acts, 1848-49.. 117. 
 
 are within 7 & 8 Vict. c. 11, ib. 
 
 what are within 13 & 14 Vict. c. 83.. 122. 
 
 railway bonds, 181. 
 
 judgments against, 113. 
 
 judgments by, 133. 
 
 actions against, 236. 
 
 actions by, 245. 
 Realty 
 
 liable to judgment, 29. 
 
 liable to decree, 37. 
 Rebutter, 
 
 judgment on default of, 8. 
 Receipts 
 
 by executors, 234. 
 
 by trustees, 232, 234. 
 
 by shopman, 212. 
 
 by agent, 203. 
 Receiver 
 
 on judgment, 
 
 of realty, 61. 
 
 of personalty, 60. 
 
 on a mortgage, 352, 358, 364. 
 Recognizances, 
 
 simple, 303. 
 
 in the nature of statute staple, 303. 
 
 order of payment of, 
 
 out of personal assets, 301. 
 out of legal real assets, 303. 
 judgment on insolvent's warrant of at- 
 torney, 3, 87. 
 Reconveyance 
 
 by mortgagee, 354. 
 
 presumed, when, ib. 
 
 Redemption 
 
 of mortgage, 
 
 at law, 329, 355, 356. 
 
 equity of (see Equity of Redemption). 
 
 who may have, 356, 359, 360. 
 by pledgor, 375. 
 by judgment creditor, 72, 73. 
 
 Elegit cceditor, 62. 
 
 Reduction into Possession, 132, 258. 
 
 Re-entry, 
 
 proviso for, by lessor, 153. 
 
 Refunding Assets, 
 
 creditors v. legatees, 297. 
 creditors inter se, ib. 
 creditors v. executor, ib. 
 
 Register Counties, 
 what, 24. 
 
 registration of judgments in, 24. 
 registration of mortgages in, 335, 336. 
 no re-registration in, 28. 
 
 Registration 
 
 of mortgages, 335. 
 
 of judgments (see Judgments). 
 
 of writ, 
 
 Westminster, 24. 
 
 Palatine, ib. 
 county, 24. 
 
 of Crown debts, 431, 434. 
 of lis pendens, 386. 
 of annuities, 425. 
 
 Rehearing, 
 
 petition of, 47. 
 
 Rejoinder, 
 
 judgment on default of, 8. 
 
 Release 
 
 of judgment, 80. 
 
 of specialty and simple contract debts, 306. 
 
 at law, 210. 
 
 in equity, 211. 
 of rent-charge, 428. 
 
 Removal 
 
 of judgments (see Judgment). 
 rules (see Judgment). 
 
 Rent, 
 
 what, 150. 
 
 of land out of England, 294. 
 
 service, 151. 
 
 charge, ib. 
 
 seek, ib. 
 
 rack-rent, ib. 
 
 ground rent, ib. 
 
 fee-farm, ib. 
 
 double, action for, 154. 
 
 distress, 152. 
 
 replevin, 155. 
 
 entry, 153. 
 
 ejectment, 156. 
 
 action of debt for, 154. 
 
 double yearly value, ib. 
 
 double value of goods, ib.
 
 INDEX. 
 
 517 
 
 Rent-Charge, 
 what, 151, 422. 
 registration of, 425. 
 special occupancy of, 423, 
 grantee's remedies, 423. 
 not a chose in action, 427. 
 no interest on (generally), 426. .» 
 
 recoverable, within what time, 39% 426. 
 redeemable, within what time, 392. 
 arrears of, 426. 
 release from, 428. 
 
 Renunciation 
 
 by executor or administrator, 280. 
 by feme executrix, 327. 
 
 Repleader, 44. 
 
 Replevin, 
 
 what, 146. 
 bond, what, ib. 
 
 Requests, 
 
 Courts of, 223. 
 
 Re-registration, 
 Westminster, 28. 
 Palatine, ib. 
 no county, ib. 
 
 Residue, 
 
 mortgage of, 348. 
 
 remedies of mortgagee of, 370. 
 
 Resignation 
 bond, 145. 
 
 Restitution, 43, 45, 47. 
 
 Restraining Order, 
 what, 368. 
 
 Rests, 
 
 annual, 313. 
 
 Retainer, 
 
 by executor, 
 what, 277. 
 a compensation for release, 78. 
 
 Retraxit, 13. 
 
 Revivor 
 
 of judgments, 80, 81. 
 bill of, 47. 
 
 Revocable, 
 
 creditor's deed, when, 254. 
 
 power, if, 10. 
 
 declaration of trust not, 185. 
 
 Rules, 
 
 Westminster, 6. 
 Palatine, ib. 
 Stannary, 20. 
 New County Courts, ib. 
 no action on, 15. 
 
 Sale, 
 
 whether judgment creditor's remedy, 62. 
 by mortgagee, 
 
 under power of sale, 350, 352. 
 
 under Court, 360. 
 
 Satisfaction 
 
 of judgment, 79, 80. 
 of debt by legacy, 279. 
 
 SCl. FA; 
 
 what, 96. 
 
 judgment de bonis iestatoris enforced by, 
 288. 
 
 Scotland, 
 
 when within the jurisdiction, 12. 
 
 Scrip, 
 
 what, 320. 
 
 Sea Policies, 161. 
 
 Seamen's Wages, 177. 
 
 Separate 
 
 bankruptcy, 102, 244, 245. 
 estate, 
 
 of partner, 98. 
 of wife, 
 
 when extendible, 47. 
 * injunction against extending, 94. 
 not within Statute of Limitations, 
 
 314. 
 how far liable in equity to her 
 debts, 262. 
 
 Separation Deeds, 261. 
 
 Sequestration 
 
 for contempt, 64. 
 
 for debt of spiritual person, 
 
 legal, 124. 
 
 equitable, 125. 
 
 Serjeant-at-Arms, 65, 477. 
 Set-off 
 
 at law, 195. 
 
 in equity, 196. 
 
 in Admiralty, 197. 
 
 in bankruptcy, 200. 
 
 Setting aside, 
 nonsuit, 43. 
 verdict, 44. 
 
 Settlement, 
 
 equity to, 259. 
 
 voluntary, 30, 71, 147, 284. 
 Several 
 
 creditor, 226, 228. 
 
 debtor, 229. 
 
 Shares, 
 
 mortgage of, 347. 
 personal assets, 318. 
 
 Sheriffs, 
 
 proceedings against, 
 
 for escape, 53. 
 
 for false return, ib. 
 
 for money levied, ih. 
 
 for treble damages, 54. 
 interpleader for, 251. 
 (London) Court of, 224. 
 
 Ships, 
 
 mortgage of, 345. 
 
 remedies of mortgagee of, 365. 
 
 mortgagees of, iitler se, 387.
 
 518 
 
 INDEX. 
 
 Ship's Husband, 377. 
 
 Ship-owners, 
 
 liability of, inter se, 377. 
 V. ship's husband, ib. 
 
 Shopman, 
 
 receipt by, 212. 
 
 Sight, 171. 
 
 Simple Contract, 
 
 what, 164. 
 
 debt, what, 166. 
 
 SOCIETES EN COMMANDITE, 
 
 what, 323. 
 
 Solicitor 
 
 guardian ad litem, 264. 
 
 trustee, 169. 
 
 lien of, 195. 
 
 bill of costs of, 168. 
 
 South Sea Stock, 182. 
 
 Special Occupancy, 419, 423. 
 
 Specialty Debts, 
 what, 139. 
 principal sorts of, 140. 
 
 Specific Performance, 
 
 decree for, when a judgment, 7. 
 of composition deed, 254. 
 
 Spiritual Parson (see Corporations). 
 
 Squeezing out, 339. 
 
 Stamps 
 
 on warrants of attorney, 9. 
 
 on mortgages, 349. 
 
 on transfers of mortgages, 380. 
 
 on deeds generally, 178. 
 
 on covenants, 150. 
 
 on agreements, 10. 
 
 on (Jlieques, 176. 
 
 Stannary Court, 
 judgments of, 447. 
 decrees, 483. 
 orders, ib. 
 rules, 27. 
 
 Statute of Limitations, 
 as to judgments, 79. 
 as to rent, 206, 207. 
 as to specialties generally, 205, 314. 
 as to simple contract debts, ib. 
 
 of feme coverte, 314. 
 as to seamen's wages, 207. 
 as affecting creditors' suits, 314. 
 where creditor is a. feme coverte, ib. 
 as to mortgages, 
 
 as regards mortgagee, 391. 
 
 mortgagor, 392. 
 
 as to rent-charges, ib., 426. 
 
 Statutes, 
 
 merchant, 302. 
 
 staple, ib. 
 
 order of payment of, 301, 303. 
 
 Statutes, 
 
 6 Edw. 1, c. 8 (Statute of Gloucester), 472. 
 
 llEdw. 1 (Statute of Acton Burncll), 302. 
 
 13 Edw. 1, St. 1, c. 18 {Ft. fas. and Ekgits), 36. 
 
 St. 3 (Statutes Merchant), 302. 
 
 18 Edw. 3, St. 2 (Chancery Procedure), 474. 
 
 25 Edw. 3, St. 2 (Children of those born beyond Sea), 266. 
 
 27 Edw. 3, St. 9 (Statutes Staple), 302. 
 
 36 Edw. 3, St. I, c. 9 (Chancery Jurisdiction), 475. 
 
 5 Rich. 2, c. 8 (Forcible Entries), 153. 
 
 15 Rich. 2, c. 2 (Forcible Entries), ib. 
 
 c. 6 (Vicarages Endowment), 331. 
 
 17 Rich. 2, c. 6 (Chancery Procedure and Jurisdiction), 474. 
 
 4 Hen. 4, c. 8 (Forcible Entries), 153. 
 
 c. 12 (Vicarages Endowment), ib. 
 
 8 Hen. 6, c. 9 (Forcible Entries), ib. 
 
 15 Hen. 6, c. 4 (Chancery Procedure), 474. 
 
 23 Hen. 8, c. 6 (Statutes Staple), 303. 
 
 25 Hen. 8, c. 21 (Chancery Jurisdiction), 475. 
 
 27Hen. 8, c. 10 (Statute Uses), 152. 
 
 31 Hen. 8, c. 1 (Chancery Jurisdiction), 475. 
 
 32 Hen. 8, c. 32 (Chancery Jurisdiction), ib. 
 
 c. 34 (Grantees of Reversions), 153,158,335. 
 
 c. 37 (Remedies for Rent by Executors of Tenant in fee), 154. 
 
 c. 38 (Spiritual Person's Leases), 130, 405. 
 
 33Hen. 8, c. 39 (Obligations to Crown), 301,429,431. 
 
 1 Eliz. c. 19 (Ecclesiastical Corporations' Conveyances), 126. 
 
 13 Eliz. c. 4 (Crown Debts), 433, 434. 
 
 c. 5 (Fraudulent Conveyances), 30, 31, 71, 147, 284, 374,375. 
 
 c. 10 (Spiritual Persons, Conveyances by), 130. 
 
 c. 20 ( Ecclesiastical Corporation Charges), 126, 330. 
 
 14Eliz.c.ll (Spiritual Person's Leases), 130. 
 
 c. 14 (Hospitals, Grants to), 130. 
 
 18 Eliz. c. 11 (Eleemosynary Corporations), 130.
 
 INDEX. 519 
 
 Statutes — continued. 
 
 27 Eliz. c. 3 (Accountants to Crown), 434. 
 
 c. 4 (Fraudulent Conveyances), 62,180. 
 
 28 Eliz. c. 4 , (Sheriff's Illegal Charges), 64. 
 
 SlEliz. c. 11 (Forcible Entries), 153. 
 
 43 Eliz. c. 29 (Eleemosynary Corporations), 130. 
 
 16 Car. 1, c. 15 (Stannfiries), 446. 
 
 21 Jac. 1, c. 15 (Restitution of Possession), 153. 
 
 c. 16 (Statute of Limitations), 207,287. 
 
 16 & 17 Car. 2, c. 2 (Contribution among Purchasers), 75. 
 
 17 Car. 2, c. 7 (Replevin), l.")6. 
 
 c. 8 (Judgments by Executors), 77. 
 
 29 Car. 2, c. 3 (Statute of Frauds), 22, 23, 27, 70, 78, 273. 
 
 30 Car. 2, c. 7 (Trespass for Devastavit), 310. 
 
 4 & 5 W. & Mary, c. 16 ... . (Fraudulent Mortgages), 339. 
 
 c. 34.... (Trespass for Devastavit), 310. 
 
 8 & 9 Will. 3, c. 11 (Actions on Ronds), 142, 324, 325. 
 
 3 & 4 Ann. c. 9 (Remedies on Promissory Notes), 181, 
 
 4 .Sc 5 Ann. c. 16 (Actions on Ronds), 142, 143. 
 
 5Ann. c. 18 (West Riding Registrations), 24,27,431. 
 
 6 Ann. c. 35 (East Riding and Kingston-on-HuU Registrations), 24, 27, 
 
 336, 431. 
 
 7 Ann. c. 5 (Naturalization), 266. 
 
 c. 20 ( Middlesex Registration), 24, 27, 335, 431. 
 
 c. 25 (Hills and Notes), 181. 
 
 8 Ann. c. 14 (Rents), 73, 154. 
 
 9 Ann. c. 5 (M. P.'s Qualifications), 351. 
 
 I Geo. 1, St. 2, c. 19 (Government Stock), 182. 
 
 c. 10 (Clergy Augmentation), 126. 
 
 12 Geo. 1, cc. 32, 33 (Chancery Finance), 474. 
 
 2 Geo. 2, c. 22 (Set-off), 195. 
 
 7 Geo. 2, c. 20 (Mortgages, Redemption and Foreclosure), 360. 
 
 SGeo. 2, c. 24 (Set-off), 195,196. 
 
 9 Geo. 2, c. 14(1) (Irish Judgments), 77. 
 
 II Geo. 2, c. 19 (Tenants and Rents), 153,154,155,185. 
 
 12 Geo. 2, c. 24 (Chancery Finance), 474. 
 
 25 Geo. 2, c. 14(1) ( Irish Judgments), 77. 
 
 4 Geo. 3, c. 32 (Chancery Finance), 474. 
 
 5 Geo. 3, c. 28 (Chancery F^inance), ib. 
 
 9 Geo. 3, c. 19 (Chancery Finance), ib. 
 
 14 Geo. 3, c. 48 (Life Insurances), 114. 
 
 c. 78 (Preventing Fires within Bills of Mortality), 160. 
 
 17Geo. 3, c. 30 (Rills and Notes), 171,175,176. 
 
 c. 53 (Clergy Residence), 405. 
 
 19 Geo. 3, c. 70 (Removal of Judgments), 21. 
 
 25 Geo. 3, c. 35 (Sale of Crown Debtors' Lands), 435. 
 
 32 Geo. 3, c. 42 (Chancery Finance), 474. 
 
 33 Geo. 3, c. 68 (Palatine Judgments Removal), 17. 
 
 35 Geo. 3, c. 63 (Stamps on Sea Insurances), 161. 
 
 39 & 40 Geo. 3, c. 88 (Privy Purse), 439. 
 
 0.99 (Pawnbrokers), 376. 
 
 41 Geo. 3, c. 90 (Chancery Decrees Removal), 26, 474. 
 
 c. 109 (General Inclosure), 395. 
 
 42Geo. 3, c. 116 (Land Tax), ii. 
 
 46 Geo.3, c. 128 (Chancery Finance), 474. 
 
 c. 129 (Chancery Finance), ib. 
 
 48 Geo. 3, c. 88 (Bills and Notes), 171,174,175. 
 
 c. 123 (Imprisoned Debtors' Discharge), 86. 
 
 51Geo. 3, c. 64 (East India Bonds), 181. 
 
 53 Geo. 3, c. 24 (Chancery Jurisdiction), 475, 478. 
 
 c,123 (Land Tax), 395. 
 
 c. 141 (Life Annuities Registration), 418. 
 
 55 Geo. 3, c. 147 (Glebe Lands Exchange), 405. 
 
 57 Geo. 3, c. 99 (Charges on Benefices), 124. 
 
 58 Geo. 3, c. 45 (Church Building), 406. 
 
 59 Geo. 3, c. 134 (Church Building), ib. 
 
 3 Geo, 4, c, 39 (Secret Warrants of Attorney), 8, 10,
 
 520 
 
 INDEX. 
 
 Statutes — continued. 
 
 3 Geo. 4, c. 72 
 
 5 Geo. 4, c. 96 
 
 c. Ill 
 
 c. 114 
 
 7 Geo. 4, c. 6 
 
 c. 46 
 
 7 & 8 Geo. 4, c. 72 
 
 9 Geo. 4, c. 23 
 
 c. 92 
 
 c. 94 
 
 10 Geo. 4, c. 13 
 
 11 Geo. 4, c. 20 
 
 11 Geo. 4& 1 Will. 4, c. 13 
 
 c. 36 
 c. 47 
 c. 70 
 
 1 & 2 Will. 4, c. 37 
 
 2 Will. 4, c. 33 
 
 c. 45 
 
 2 & 3 Will. 4, c. 92 
 
 c. Ill 
 
 c. 122 
 
 3 & 4 Will. 4, c. 14 
 
 c. 27 
 
 c. 41 
 
 c. 42 
 
 c. 84 
 
 c. 94 
 
 c. 98 
 
 c. 104 
 
 c. 105 
 
 4 & 5 Will 4, c. 22 
 
 c. 42 
 
 c. 62 
 
 c. 76 
 
 c. 82 
 
 5 & 6 Will. 4, c. 20 
 
 cc. 47, 82 . . 
 
 c. 69 
 
 c. 76 
 
 6& 7 Will. 4, c. 19 
 
 c. 32 
 
 c. 104 
 
 c. 105 
 
 c. 106 
 
 7 Will. 4 & 1 Vict. c. 26 . . 
 
 c. 28 . . 
 
 c. 73 .. 
 
 c. 78 . . 
 
 1 Vict. c. 67 
 
 1 & 2 Vict. c. 1 
 
 C.23 
 
 c. 54 
 
 0.74 
 
 €.106 
 
 c. 110 
 
 2 & 3 VicL ell 
 
 c. 16 
 
 C.27 
 
 0.37 
 
 0.58 
 
 Church Building), 406. 
 
 Masters and Workmen), 302. 
 
 Chancery Procedure), 474. 
 
 Marine Insurance), 161. 
 
 Promissory Notes), 175. 
 
 Banking Partnerships), 107, 110, 237, 246. 
 
 Church Building), 406. 
 
 Bankers' Bills and Notes), 108. 
 
 Savings Banks), 110. 
 
 Benefices Resignation), 145. 
 
 Chancery Finance), 474. 
 
 Royal Navy), 330. 
 
 Transfer of Stock), 182. 
 
 Chancery Procedure), 474. 
 
 Payment of Debts out of Real Estate), 285, 286. 
 
 Bail Court and Appeals), 443. 
 
 Workmen's Wages), 302. 
 
 Chancery Procedure), 474. 
 
 Reform of People), 351. 
 
 Privy Council), 494. 
 
 Chancery Offices), ib. 
 
 Chancery Finance), ib. 
 
 Savings Banks), 110. 
 
 Statute of Limitations), 79, 206, 207, 391, 426. 
 
 Privy Council), 481. 
 
 Statute of Limitations), 13, 54, 152, 205, 206, 207, 286, 288, 
 
 314, 426. 
 
 Chancery Offices), 474. 
 
 Chancery Procedure), ib. 
 
 Bank of England), 211, 354. 
 
 Payment of Debts out of Real Estate), 275, 282, 294, 298, 299, 
 
 300, 303. 
 
 Dower), 383. 
 
 Apportionment), 155. 
 
 Stannaries), 446. 
 
 Lancaster Common Pleas), 17. 
 
 Poor Laws), 394. 
 
 Chancery Procedure), 474. 
 
 Tax Collectors), 434. 
 
 Chancery Offices), 474. 
 
 Parish Property Conveyance), 129. 
 
 Municipal Corporations;, 128, 222, 406. 
 
 Durham Chancery), 481. 
 
 Benefit Building Societies), 409. 
 
 Borough Funds Administration), 128,406. 
 
 Borough Courts), 460. 
 
 Stannaries), 446. 
 
 Wills), 419, 423. 
 
 Statute of Limitations — Mortgages), 391. 
 
 Patenteed Companies), 113. 
 
 Borough Courts Jurisdiction), 460. 
 
 Masters and Workmen), 302. 
 
 Civil List), 440. 
 
 Beneficed Clergy Residences), 405. 
 
 Chancery Finance), 474. 
 
 Small Tenements Recovery), 157. 
 
 Benefices Plurality and Curates), 405. 
 
 Judgments and Imprisoned Debtors), 19, 24, 25, 27, 30, 34, 35, 
 37, 38, 48, 49, 51, 55, 58, 59, 70, 78, 79, 83, 86, 96, 98, 
 107, 126, 146, 192, 214, 215, 216, 218, 222, 253, 284, 
 371,475. 
 (Purchaser's Protection), 31, 32, 33. 
 (Durham Pleas), 17. 
 (Borough Courts Procedure), 460. 
 (Usury), 9. 
 (Stannaries), 446, 482.
 
 INDEX. • 521 
 
 Statvtes — continued. 
 
 3 & 4 Vict. c. 34 (Chancery Finance). 474. 
 
 c 82 St "'""i ^'!^'-^? Drainage), 39fi, 475. 
 
 c 94 ^["^' Stock Ciiarglng Orders), 35. 
 
 c' 105 jy^J'^'^^'y Procedure and Finance), 474. 
 
 ^ JJ3 (Irish Judgments), 20. 
 
 4&5Vict.c.' 35. ..*:;;;;■• fSSfF^V^^T'^''"^^ commissioners), 127. 
 
 c 39 )^°Py"o''i Enfranchisement), 396, 475. 
 
 c' 52:::: :::■•* rr.nr'''p"' corporations and Commissioners), 127. 
 
 5 Vict. c. 5 . . Chancery Procedure), 474. ''' 
 
 5 & 6 Vict c. 2g: : : : }vnT " ?'''/'f,''"^';^' ^^^' ^'^^^ 
 
 J, go (Ecclesiastical Residences), 405. 
 
 *^" qo"'* (Chancery Jurisdiction),'475: 
 
 (Escape from Sheriff"), 53, 
 
 6&7Vict.c:23..:::::'- &v\^'h ?'j'°'^^;^°"'^'^^'°n^ 216. 
 
 „ 00 (Copyhold Enfranchisement), 396". 
 
 ^•7 (Privy Council), 494. ^ 
 
 -7^ (Secret Warrants of Attorney), 8. 
 
 "o, (Attorneys and Solicitors), 169. 
 
 7 A- S v;^f 00 (Chancery Procedure), 474. 
 
 ^ "^ ' ' '''• :• 69 f ^"'^ °/ ^"^''>"'')' 107, 108. 110. 
 
 *^- "^ (Privy Council), 494. 
 
 (Insolvent Arrangement's Act), 275. 
 
 C.70. 
 
 ^'li (Savings Banks), 
 
 96 
 
 110. 
 
 c. 
 
 (Insolvency, Bankruptcy and Execution), 9, 10, 216, 217, 218, 
 
 in (Joint Stock Companies), 114, 120. 134, 245, 322^4of 47f *' 
 
 ^'^"'^^ Stock Companies Winding-up).' 118, 119. 120 ^37. 
 
 8 & 9 Vict c' 16^ (Banking Companies), 389, 890. ^*^' ^'^^^ 
 
 "c:i8::::::::::StsSsT^^^^^^^ 
 
 c" <;« (Railways Clauses Consolidation), 237. 
 
 '11 (Settled Estates Drainage), 396, 475. 
 
 ■ in^ (Irish Companies), 244,247,251. 
 
 ^ VZ (Chancery Procedure), 474. 
 
 c 1 18 (^^^1 Property), 334, 337, 341. 
 
 -' ,i2 (General Inclosure), 395. 
 
 Q/lrinv y tL (Small Debts), 34,43. 
 
 9 & 10 Vict. c. 20 (Chancery Finance) 474. 
 
 c- 75 :::::::: EB^nksTi^r"'"'""^' 137,2*7,255. 
 10 & 11 vict.^'e'|o • :::::: [S^L? Si)!';'!' ''' '''' '''' '''> '■''' ^*«- 
 
 ^'^f (Canal Companies), 404. 
 
 ^•^7 (Trustees' Relief), 231, 475. 
 
 c ,L (Chancery Offices), 474. 
 
 11 & 12 Vict. c'. 10 : Ph^n'^P'"^ and Insolvency), 53, 86, 89, 92. 
 
 yi (Chancery Procedure). 474 
 
 "" (Winding-up Act, 1848), 117. 118. 119, 121, 136, 240 243 
 
 <=• f (Stannaries), 446. ^^^' ^51, 321. 474, 475: 
 
 12 & 13 Vict.':?* (Chancery Offices). 474. 
 
 '^. (Benefices Sequestration). 125. 
 
 ^101 (Trustees Relief), 231,475. 
 
 ,,, , (County Courts), 220, 448. 
 
 ■ ^^"^T29^j5°"ior'forlJ' ^' ''' «'• «2. 83, 84, 91, 120. 
 
 122, 135, 196, 198, 200, 213, 215, 217 222 245 9-54. 
 
 c. 108 av H- '"'' ''7' '''^' ''^' 371 373.'374. 412,437 ' ' ' 
 
 c 109 (;*;'V>"ding-up Act, 1849), 111, 117,474. ' 
 
 13 & 14 Vict, c 35 Chancery Offices ), 474. 
 
 43 
 
 •^•3^ (Chancery Procedure), 474. 
 
 6? (Trustee Act, 1850); ■23'l733l' 332, 382. 387. 
 
 (Lancaster Chancery), 15, 18. 
 
 (Trustee Act, 1850), 231,'; 
 
 qi (County Courts), 248, 448. 
 
 ^' (Stamps), 9, 150, 178, 349. 
 
 M M
 
 522 INDEX. 
 
 Statutes — continued. 
 
 14 & 15 Vict. c. 4 (Chancery Jurisdiction), 475. 
 
 c. 25 (Emblements), 35,155,223. 
 
 c. 52 (Absconding Debtors), 193. 
 
 0.83 (Chancery Jurisdiction), 475. 
 
 c. 94 (High Peak Barmote Courts), 51, 52, 472, 473. 
 
 c. 99 (Evidence), 47. 
 
 15 & 16 Vict. c. 51 (Copyhold Enfranchisement), 396. 
 
 c. 54 (County Courts), 25, 223, 448. 
 
 c. 76 (Common Law Procedure), 1 1, 12, 13, 14, 23, 217, 223, 356, 357. 
 
 c. Ixxvii .... (London Small Debts), 448. 
 
 c. 80 (Masters in Chancery), 136, 242, 474. 
 
 c. 86 (Equity Improvement), 63,91,193,209,264,290,291,293, 
 
 296, 297, 360, 364, 411,412, 413, 415, 474. 
 
 c. 87 (Chancery Finance), 474, 475. 
 
 16 & 17 Vict. c. 22 (Chancery Procedure), 474. 
 
 c. 59 (Stamps), 212,405. 
 
 c, 70 (Lunacy Regulation), 265, 266, 332. 
 
 c. 98 (Chancery Finance), 475. 
 
 •17 & 18 Vict. c. 36 (Secret Bills of Sale), 66, 373. 
 
 c. 81 (Oxford University), 455. 
 
 c. 82 (Lancaster Chancery), 480. 
 
 "c. 83 (Stamps), 178. 
 
 "c. 90 (Usury), 9, 141, 145, 376. 
 
 c. 100 (Chancery Procedure), 474. 
 
 c. 104 (Merchant Shipping), 365. 
 
 c. 1 13 ( Exoneration of Real Estate), 389, 390. 
 
 c. 125 (Common Law Procedure), 35, 47, 59, 76, 80, 223. 
 
 18 & 19 Vict. c. 15 (Purchaser's Protection), 15, 65, 74, 284, 303, 386, 425, 436, 
 
 c. 32 (Stannaries), 16, 20, 21,446, 447. 
 
 c. 48 (Cinque Ports), 225. 
 
 C.63 (Friendly Societies), 246,484. 
 
 c. 67 (Bills of Exchange), 8, 175. 
 
 c. 83 (Turnpikes (Ireland), 237. 
 
 c. Ill (Bills of Lading), 182. 
 
 c. 134 (Chancery Procedure), 474. 
 
 19 & 20 Vict. c. 47 (Joint Stock Act, 1856), 106, 114, 115, 116, 117, 119, 136, 
 
 236, 239, 475. 
 
 c. 88 (Cambridge University), 483. 
 
 c. 97 (Mercantile Law), 22,23,60, 66, 69, 80, 171, 173, 174, 199, 
 
 208, 282, 287. 
 c. 108 (County Courts), 20, 52, 53, 89, 92, 157, 357, 448. 
 
 20 & 21 Vict. c. 14 (Joint Stock Acts, 1857), 98, 106, 112, 113, 136, 241, 475. 
 
 c. 49 (Banking Companies), 108,109,475. 
 
 c. 78 (Winding-up Acts Amendment), 117, 119, 243, 475. 
 
 c. 80 (Insurance Companies), 114,475. 
 
 c. 85 (Divorce), 2o8, 274. 
 
 c. clvii (Lord Mayor's Court), 448—460, 461. 
 
 21 & 22 Vict. c. 27 (Chancery Procedure and Jurisdiction), 424, 474, 475. 
 
 c. 60 (Joint Stock Acts Amendment), 117. 
 
 c. 79 (Bankers' Cheques), 176. 
 
 c. 91 (Banking Companies), 109. 
 
 c. 98 (Public Health), 405. 
 
 22 & 23 Vict. c. 35 (Law of Property and Trustees' Relief), 80, 163, 191, 233,274, 
 
 277, 295, 297, 298, 309, 394, 395, 428, 475. 
 
 0.39 (East India Stock), 182. 
 
 0.57 (County Courts), 53, 448. 
 
 23 & 24 Vict. c. 15 (Stamps'), 176. 
 
 0. 16 (Municipal Corporation Mortgages), 406, 410. 
 
 0-21 ( Pawnbrokers), 376. 
 
 0.34 (Petitions of Right), 439. 
 
 o. 38 (Law of Property), 24, 27, 283, 475. 
 
 c. Ill (Stamps), 175. 
 
 0.115 (Crown Debts and Judgments), 80. 
 
 0.126 (Law and Equity), 157,163. 
 
 0, 145 (Trustees and Mortgagees), 393. 
 
 0. 147 (Debtors and Creditors), 255. 
 
 c. 149 (Court of Chancery), 136, 474.
 
 INDEX. 
 
 523 
 
 Stock (a), 
 
 what, 421, 
 
 mortgage of, 366. 
 
 remedies of mortgagee, ib. 
 Stop Order, 
 
 what, 58. 
 
 auxiliary to charging order, 58. 
 
 priority of, 369. 
 
 against wife's reversionary chose in action, 
 399. 
 
 Stoppage in Ti!ANsiTU,19-i:. 
 
 Sub-Agents, 200. 
 
 -committee, 257. 
 
 -pledge, 376. 
 
 -mortgage, 379. 
 
 Suggestion (see Revivor). 
 Suitors' Fund, 
 
 solicitor to, 264. 
 Summons, 
 
 judgment debtor, 53. 
 Superior Courts, 
 
 what, 53, 221. 
 
 Supersedeas 
 
 of execution, 46. 
 
 Sureties, 
 
 creditor v. surety, 197. 
 
 surety v. debtor and creditor, 198. 
 
 debtor v. surety, ib. 
 
 surety v, co-surety, 199. 
 
 Tacking, 
 
 by judgment creditor, 74. 
 
 by specialty creditor, 299. 
 
 by simple contract creditors, 300. 
 
 by pledgee, 376. 
 
 by mortgagee, 361. 
 Taxation (see Solicitor). 
 Tenant (see Rent). 
 
 by curtesy, 
 
 V. judgment, 282, 285. 
 V. specialty or simple contract, 293. 
 Tender 
 
 of debt, 211. 
 
 of mortgage money, 353. 
 
 Terre-tenant, 
 who, 281. 
 
 Time given, 198. 
 
 Tithe rent-charge, 428. 
 
 Tolls, 
 
 mortgage of, 352. 
 Transfer 
 
 of bills and notes, 177. 
 of mortgages, 
 inter vivos, 
 
 absolute, 378. 
 sub-mortgage, 378. 
 
 Transfer — continued. 
 of mortgages, 
 
 by will or death, 379. 
 stamps on, 380. 
 
 by companies within 8 & 9 Vict. c. 16 
 403. ' 
 
 Trial, 
 
 de novo, 44. 
 new, 44. 
 
 Trover, 
 
 for deeds, 357. 
 for goods, 194. 
 
 Trust, 
 
 declaration of, 184. 
 
 Trustees 
 
 of debts, 231. 
 
 abroad, 232. 
 
 neglecting, &c., 232. 
 
 appointment of new, ib. 
 
 notice to, 188, 232. 
 
 notice by, 232. 
 
 receipts by, ib. 
 
 liability of for co- trustee, 233. 
 
 trustee v. co-trustee, ib. 
 
 under composition deeds, 28, 240. 
 
 lunatic, 231. 
 
 mortgages to, 407. 
 
 mortgages by, 393. 
 
 insolvent and bankrupt 234. 
 Turnpike Trustees, 
 
 how sued, 237. 
 
 how sue, 246. 
 
 Underlease, 
 
 mortgage by way of, 337. 
 
 lessor V. under-lessee, 158. 
 
 lessee v. under-lessee, ib. 
 
 executors of lessor v. under-lessee, 155, 
 Usury, 
 
 laws repealed, 146. 
 
 Vacating, 
 
 judgment, 28. 
 
 annuity, 420. 
 Value, 
 
 presumed, 173. 
 
 "received," ib. 
 
 VENVirroKl EXPONAS, 
 
 legal, 48. 
 
 equitable, 59. 
 Vendor, 
 
 lien of, 194, 342. 
 
 remedy for lien, 365. 
 Ventre de nofo (see Trial de Novo). 
 " Venue," 
 
 change of, 221. 
 
 {a J Foreign stocks vary m tlieir mode of transfer. Thus French rentes, and some American 
 stocky can only be transferred in their respective countries ; others, as Russian, Danish, Prussian 
 and Dutch bonds, pass by mere delivery. (Keyser's Law of the Stock Exchange 215 )
 
 524 
 
 INDEX. 
 
 Verdict, 
 
 judgment on, 13. 
 setting aside, 44. 
 
 Vesting Orders, 231, 232. 
 
 Vicar (see Corporations proper). 
 
 irremovable and endowable, 330. 
 
 Voluntary 
 debts, 2. 
 
 judgments, 14, 301. 
 bond, 146, 294. 
 covenant, 148, 294. 
 assignee, 184. 
 
 no creditor, 2, 183. 
 payment by executor, 276. 
 
 Volunteers, 
 who are, 26. 
 
 Wages, 302. 
 
 Warden, 
 Lord 
 
 of the Stannaries, 494. 
 
 Cinque Ports, 482. 
 Vice of the Stannaries, Court of, 446, 482. 
 
 Warrant of Attorney, 
 what, 8. 
 stamp on, 9. 
 not usurious, 9. 
 
 Welsh Mortgage, 337, 392. 
 
 Wife (see Feme Coverte). 
 
 Winding-Up Acts, 
 what, 116. 
 
 what companies within, 117. 
 what authorizes winding up, 118. 
 winding-up, contributories' remedy, 118, 
 
 243. 
 call under, 
 
 what, 243. 
 
 a simple contract debt, 243. 
 who are contributories, 243. 
 Master's jurisdiction under, 136, 242. 
 creditor's representative, 243. 
 bankrupt companies, 243. 
 debts how proved, 242. 
 Writ 
 
 of summons, 
 
 ■ specially indorsed, when, 11. 
 of execution, 
 
 registration of, 24, 27. 
 
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