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S. WHARTON, Esq., M.A., Oxon, Barrister-at-Law. Third Edition, greatly enlarged and im- proved. In 1 vol., royal 8vo. Price 40s. cloth. Cooke on Inclosures.— Fourth Edition. 1864. The Acts for Facilitating the Inclosure of Commons in England and Wales ; with a Treatise on the Law of Rights of Commons in reference to these Acts, &c. With Foi-ms, as settle> .• 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. () 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. 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 <=• 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 ). 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 (. 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(» 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 () 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. () 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 Eoiiij)son, Coop. (temp. {!<) T. T. 1853, r. 4. Eldon), 394. (//) Steph. Pleading, 27. (c) 3 Atk. 129. (i) Archb. Pr. 1271. ( & 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 (•) 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«. (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 (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" {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. . (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"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- 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) 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 (), 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. LONDON : PRINTED BY C. ROWdRTH AND SONS, BELL YARD, TEMPLE BAR. /y- WORKS PUBLISHED BY STEVENS AND SONS. Russell on Crimes and Misdemeanours. — ^Fomth Edition. By C. S GREAVES, Esq., Q C, 3 vols, royal 8vo. Price 5/. 15s. 6rf. cloth. Smith's Mercantile Law.— Seventh Edition. By G. M. DOWDESWELL, Esq. Royal 8vo. cloth. Price 1/. 16.y. 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