UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY V(f \ THE LAW OP M O E T G A G E AN'l) OTHER SECURITIES UPON PROPERTY. BY WILLIAM RICHARD FISHER, OF LINCOLN'S INN, BARRISTER- AT-LA\V. <§cronb (L-bition. IN TWO VOLUMES. Vol. II. LONDON: BUTTER WORTHS, 7, FLEET STREET, itatii 13ubli5l)rrQ to tf)E iDurrn's most firrllrnt i-Hajrsip. HODGES, SMITH & CO., GRAFTON STREET, DUBLIN. 1868. T LONDON : PniNTED BY C. ROWORTH AND SONS, NEWTON STREET, W.C. CONTENTS. VOLUME TI. CHAPTER VIII. Of Notice as it affects the Validity and Priority of Securities. 1085 — 1"lie Necessity of Notice to complete the Mortgagee's Title to Personalty. 1091 — Notice by Persons dealing with inciunbercd I'ropcrty. 1093 — The Nature of Notice and the Conditions under which it arises. 1094 — ^o whom Notice slionld lie given. HOO— Constructive Notice. 1103 — By Negli- gence and Fraud. 1106— I'etwecn Princijial and Agent. 1120— Ky Recitals or Reference. 1142— I^y Tenancy. 1146 — In Dealings with E.xe- cutors, Administrators and Trustees. By Records : 1153 — Act.s of Parlia- ment. 1154— Court Rolls. 1155 — Registration, Lis pendens, Judgments and Decrees. 1169— The Plea of Purchase without Notice. CHAPTER IX. Of the Priorities of Incumbrancers. Part I. Legal Priority and herein of Defective Assurances and the Doctrine of Tacking. 1183— Priority under defective Assurances. 1197— The Effect of the Legal Estate and the Tacking of Securities. Part II. Equitable Priority. 1223— The General Rules of Equitable Prioritj-. 1239 — The Right to consolidate several Securities. Part III. Priority under Securities upon Chattels Personal and Choses in Action, and upon Ships under the Maritime Law. 1253 — Priority in Securities upon Chattels Personal and Choses in Action. 1268 — Priority under the Mari- time Law. Part IV. Priority by Statute. 1274— Under the Registration Acts ; 1284— Under the Ship Registry Acts; 1291 - 1 'u<h"r the Judgment Acts ; 1313— Under the Bankruptcy Acts ; 1319— Under other Statutes. av CONTENTS. CHAPTER X. Of the Liability of tue incumbered Estate to the Payment OF THE Debt. 1321 — Cases iu which the incumbered Estate is primarily liable to or entitled to be exonerated from the Debt. 1354— Cases in which two or more Estates are liable to contribute to the Debt. 1361 — Cases in which incumbered and other Estates will be niar.sballed. CHAPTER XI. Of the Discharge of the Security. 1378 -Ky Payment or Satisfaction of the Debt. 1405 -By Eelease. 1410— By :Merger of the Debt. 1445 -By Merger of the Security. 1452— By Waiver, and herein of the Destruction of Possessory Liens by Abandonment of Possession, and 1490— The Eight of the Vendor of Chattels to stop them in Transitu. 1531 — By the Negligence or Fraud of the Creditor. 1548 — By the Loss or Destruction of the subject of the Security. CHAPTER XII. Of Taking the Accounts. Part L Accounts generally between the ^Mortgagor and Mortgagee. 1550 — AVho is bound by Accounts. 1562 — Accounts against the Mortgagor and of the Kents and Profits. 1572 — Accounts against the Mortgagee and his Assignees. 1581— -A.ccounts against the Mortgagee in Pos.session. 1603 — The Manner of Charging the Mortgagee in Possession. 1617— "-'^ll'^w- ances to the Mortgagee. 1622 — Taking the Account with Rests. 1630 — Carr}'ing on the Accounts. Part IL Accounts of Interest. 1631 — The Persons who arc bound to pay and entitled to receive Interest. 1661 — The Conversion of Interest in Arrear into Principal. 1667 — Computing subsequent Interest. 1672 — The Right to set off Arrears of Interest. 1673 — The Right to Arrears of Interest under the Statutes of Limitations. 1683 — The Rate of Interest and Usury. 1690 — ^^ lien Interest ceases. Part III. Accounts of Costs. 1693— The General Right of the Mortgagee to Costs. 1709 -The Costs under a Decree for Sale. 1712— The Equitable ^lortgagce's Right to Costs. 1719 — The Costs of the Incumbrancers under the Lands Clauses Consolidation Act. 1721 — The Mortgagee's Right to Costs and Expenses disbursed. 1737 — The Mortgagee's Liability to Costs incurred by the Loss of the Deeds. 1738 — Costs arising out of Assignments pendente lite. 1739— The Costs of Re-conveyance. 1747 — The Right of Disclaiming Parties to Costs. 1757 — Adding Costs to the Debt after Decree. 1759— Solicitor's Costs. 1762—^'"'^^^ "PO" Staying Proceedings. CONTENTS. V CHAPTER XI 11. Of the Deckke and of Matters consequent ox tiik Dis- ciiakge of the security. 1763— Tlie Nature ami Fonii of the Decree. 1783— The Time allowed for Pay- ment. 1789 — l''iilar<:jiiig the Time for Payment and Openin;,' the Fore- closure. 1809 — 'I'he Conveyance and Delivery of Possession of the Estate on Kedcmption, Foreclosure or Sale. 1821— 'I'l"' Higlit to Policies of Insurance effected as Collateral Securities. 1829— I^c'tccs for Sale. 1844 — Decrees and Orders a^-'ainst Infants and Trustees. 1863 — ^^cfrf'f's a^'ainst Married Women. 1864— The Delivery of the Title Deeds. 1868-Tlie Loss of the Title Deeds. 1873— The Order absolute for Foreclosure. 1881 — The Dismissal of the Bill for Redemption. APPENDIX. Decrees :— 1885-Thack\vray ('. Bell. 1897— Bell ;>. Cartvvrijriit. 1902— Hill r. Edmonds. 1911_S<)l)cr r. Kemp. 1915— Ilu^dies r. Williams. 1926 — Chai)pell i'. Kecs. 1931- Aldworth v. Kol>insoii. ' 1939 - Barnes /•. Kacster. Of Securities under various Statutes. 1949— Bciietices Plurality Act. 1959 — Charitable Trusts Acts. I960— Commissioners' Clauses Act, 1847. 1975— Companies Acts. 1991— Copyhold J:nfi-anchiscment Acts. 2021— County Courts Equitable Jurisdiction Act. 2022 — Delits, Mortgages of Infants' Estates for Payment of. 2023— Impi'ivemcnt Acts. 2053 — Inclosurc Acts. 2060--Tud,unicnt Acts— Dischart^e of Crown Debts. 2062— Lands Clauses Consolidation Act, 184.5. 2073— I-ind Tax Rc- dcmjition Acts. 2078 -^runicipal Corporation Acts. 2081— Bublic Works and Fisheries Acts. 2082— Railway Companies Securities Act, ISfin. 2094— Turnpike Acts. 2113 -West India Incumbered Estates Acts. 2120— •>' stamps upon Securities. M. VOL. II. THE LAW OF MORTGAGE AND OTHER SECUPJTIES UPON PlIOPERTY CHAPTER VIII. OF NOTICE AS IT AFFECTS THE VALIDITY AND PRIOKITY OF SECURITIES. 1085. Of the Necessity of Notice to complete the Mortgagee's Title to Personalty. 1091. Of Notice by Persons dealing with Inciimhered Property. 1093. Of the Nature of Notice, and the Conditions under which it arises. 1094. '^0 whom Notice ahonld he given. 1100. Of Constructii-e Notice. 1103. Sy Negligence and Fraxid. 1106. Between Principal and Agent. 1120. Py Pfcitals or Reference. 1142. Py Tenancy. 1146. ^n Pealings with Executors, Administrators and Trustees. By Records. 1153. Acts of Parliament. 1154. Court Polls. 1155. Registration, Lis Pendens, Judgments and Decrees. 1169. Of titf Plea of Purchase without Notice. Of the Necessity of Notice to complete the Mort(jagee''s Title to Personalty. 1085. The validity or the priority of a security often depends upon the giving or witliliolding, by tlie owner of it, of certain notices ; or upon his receiving, directly or in- directly, notice of circumstances affecting the prior title of the incumbered pi'operty. Al. VOL. 11. Q Q 586 NOTICE TO COMPLETE 1086. An assignee, whether by way of mortgage or other- wise, of personal property, must, if he can (29, 1 254), com- plete his title by possession. But if possession cannot be had, as in the case of a chattel, the legal right to which is not in the assignor, or which, from other circumstances, can- not be delivered, or, as in the case of a bond debt, or other chose in action, is incapable of delivery, the assignee must give notice to all who have a legal control over the disposi- tion of the property ; by Avhich means he places them under the obligation of treating it as his, and protects future lenders, Avho make due inquiry, against prior undis- closed incumbrances (a). If he neglect to give notice, the assignor, having only parted Avith an equitable right, is still able to release, receive or re-assign the debt or other pro- perty ; and in case of his bankruptcy it will vest in his assignees as property within his order and disposition with the consent of the true owner (b). The delivery of the evidence of the debt is not sufficient, because it will not prevent the assio-nor from claiminij; the debt from the person liable for its payment (c). 1087. There is no distinction in this matter between legal and equitable incumbrancers ; an equitable sub-mortgagee by deposit being as much bound to give notice as an original mortgagee by assignment (rf). And the notice must be dis- tinctly given by the person claiming under the assignment or his agent : it not beino; sufficient to shoAv that the holder of the fund had acquired notice aliunde (e). The assignee may. (a) Dearie r. Hall ; Lovcridge v. Cooper, 3 Russ. 1, 30; Foster v. Black- Htone, 9 Bli<,di, N. S. 37G; Ex parte Monro, Buek, 300 ; Jones v. Jones, 8 Sim. f.33; Williams v. Thorp, 2 id. 257; Meux v. Bell, 1 Hare, 73; Ex parte Colvill, Mont. 110; Ex parte Tennyson, Mont. & Bl. G7. Certifi- cates of shares in a gas company are wthin the rule. (Ex parte Vallancc, 3 M. & A. 224.) (J) Stocks V. Dob.son, Jj De G. & S. 760 ; 4 De G., M. & G. 1 1 ; Ex parte Nuthing, 2 M., D. & De G. 302. («) Williams r. Thorp, 2. Sim. 257; Ex parte Colville, id. 570, n. (d) Ex parte Arkwright, 3 M., D. & De G. 12!); Ex parte Wood, id. 315. But where a lien only is intended to be created hy a dei>osit, and not an equitable assignment, the assignees of the depositor cannot maintain an action at law to recover possession of the deposit, though no notice have been given. (Gibson v. Overbury, 7 M. & AV. 5.55.) (e) Lloyd r. Banks, L. IL, 4 Eq. 90'> TITLE TO CHATTELS. 587 however, at any time complete his title by giving notice, subject to assignments of which earlier notice has been given. And the burthen of" showing the absence of notice is upon those Avho claim against the security (/). 1088, The rule that notice must be given does not apply where the security consists of a bill of exchange, promissory note i)ayable to order, or other negotiable instrument, whether indorsed or not by the debtor {(j) ; nor (by analogy to legal interests in land), to assignments of equitable in- terests in land or chattels real (A) ; for as at law convey- ances of different interests carved out of the freehold take effect according to priority in time, the later not operating till the earlier have ceased, so equity, following the law, treats conveyances of the equity of redemption as interests taken out of the fee are treated at law (/), and the mort- gagee Avill not be postponed because he has not given notice, whatever may have been his motive in omitting to do so, provided his conduct have not actually or by inference been of a fraudulent kind (k). Notice is therefore unnecessary of assignments in equity of incomes payable out of real estate as part of the inhei'itance (Z), and of reversionary interests in real estate not directed to be sold (although the parties en- titled have, as between themselves, treated their interests as personalty) {m), as also of assignments of leaseholds {n), and annuities charged thereon (o). It is the same if the mort- gage be in the form of a trust for sale {p). 1089. But Avhere the mortgage aflects an interest in the proceeds of real estate devised upon trust for sale, or directed to be sold, or a portion to be raised out of real estate, and (/) Ex parte Stevens, 4 ]). & C. Harrison, 2 K. & J. 8G. 117. (i) Jones v. Jones, 8 Sim. fio.j. (//) Ex parte Trice. 3 :\r.,D.&DeG. (Z) Foster v. Blackstone, 9 Bligb, 586. The incumbrancer may have an N. S. 37G. equity to have the security indorsed by (/) Rochard r. Fulton, 1 J. & L. the debtor or his assignees. (Id. and 413; 7 Ir. Eq. H. 131. Ex parte Greenitiir, 13 Vcs. 20G ; Ex (;/() Lee v. Howlett, 2 Kay & Jo. parte Mowbray, 1 J. & W. 428.) 531. (//) Wihuot V. Tike, 5 Ilarc, 14; («) Jones r. Jones, 8 Sim. 633. Jones r. Jones, 8 Sim. G33; Wiltshire (<-) Wiltshire v. Rabbits, 14 Sim. 7G. V. Rabbits, 14 Sim. 7G ; Roiper v. {p) AVilmot v. Tike, o Hare, 14. QQ2 588 NOTICE TO COMPLETE ■\vliicli can only be received as money, and is not a right to the land itself, notice must be given (5-). Where a security was given upon a share of property then unconverted, though an administration suit, of Avhich the puisne incumbrancer had notice, Avas pending ; it was held(r), that he could not, after a sale under a decree in the suit, obtain priority by means of a judge's order charging the pro- duce of the sale in court, even supposing that, as a judgment creditor, he was entitled to the same rights as a purchaser by particular contract for value ; which was doubted {s). Where, however, the situation of the property was such, that, though not actually converted at the date of the secu- rity, it was considered as being converted, under certain trusts to Avhich it was subject, and, after actual conversion, a puisne incumbrancer gave notice to the trustees who held the purchase-monies, he was held {t) to have gained priority over others earlier in time {u). 1090. It is not necessary in order to complete the title of iq) Lee V. Hewlett, 2 K. & Jo. 531 ; Consolidated Investment Conipnny v. Eiley, 1 Gif. 371 ; 5 Jur.,N. S. 1283; In re Hughes, 2 II. & M. 89 ; 10 Jur. N. S. 900. The deposit of a land order of the New Zealand Company has been held to re(iuire no notice to the com- pany. (Ex parte Bamett, De G. 194.) But shares in a canal company, possess- ing land for the purpo.ses of trade, are not considered to be real estate. (Ex parte Richardson, 3 Dca. 49G.) (r) BrearclifE v. Dorrington, 4 Do G. & S. 122; and see Dunster v. Glen- gall, 3 Ir. Ch. 47. (.?) But see Ex jjarte Boyle, 17 Jur. 981. (^) Foster v. Blackstone, 1 My. & K. 297. (//) The rules (:on(;eming conversion rcfjuire a clear indication of an intention to change the nature of the property ; a mere trust to sell in a certain event (in the case of conversicm of realty) being insufficient. And if there be a sale under a power or conditional trust for sale in a mortgage, and no more express indication of intention, as to the destination of the surplus monies, than a direction to pay them to the executors or administrators, or the heirs, executors or administrators of the mort- gagor, they will be held to belong to the heir, upon whom the equity of re- demption has descended, if the sale be made after the mortgagor's death ; otherwise to the executors or adminis-. trators of the ni(;rtgagor. (Bourne v. Bourne, 2 Hare, 35 ; Biggs v. Andrews, 5 Sim. 424 ; Wright v. Rose, 2 Sim. 6 St. 323.) But under an absolute trust for sale in a deed, the produce will remain personalty, though not sold till after the death of the grantcjr, if the words of the deed be sufficient to change the nature of the ]jroperty. (Griffith r. Hicketts, 7 Hare, 299 ; and see Shad- forth V. Temple, 10 Sim. 184; Re Cooper, 17 Jur. 1087 ; Van v. Barnett, 19 Ves. 102; Griesbacb v. Freeman tie, 17 Beav. 318; Leigh & Dulz. Conv. Ch. 5, G.) TITLE OF MORTGAGEE. 589 an assignee of a mortgage, or of a submortgagee, cither of l:ui(l or personal estate, to give notice to tiic original mort- irao-or of the assignment of the mortgage debt ; because the debt is incident to tlie property which forms the security, and Avhich cannot l)e taken from the assignee without payment (.r). Of Notice hij Persons dealing 7cith Incumbered Property. 1091. It is also the duty of persons who deal with incum- bered property, to give to those who are interested in the property, or in the money secured thereon, such notices as will enable them to secure themselves against loss, by ascer- taining the nature of the incumbrances already effected, or by regulating their future dealings with the estate or the incumbrance. Such notices should be given by the mort- gagor to persons Avlth whom he is dealing for a further advance upon property already incumbered ; and by the mortgagee to those Avho have claims upon the estate prior to his own. For this reason the mortgagee of an estate for lives ought to give to the lessor notice of his security; for il", without doing so, he should leave the mortgagor in possession as apparent OAvner, it Avill be considered as an agreement that the mortgagor shall continue to be tenant for the purpose of paying the fine upon rencAval ; and the mortgagee Avill have no remedy (y) if the estate be forfeited by the neglect or refusal of the mortgagor under such circumstances to make the payment (r). 1093. For the prevention of fraud and litigation, courts of (.r) Jones r. Gibbons, 9 Ves. 410. mcnt l)y the lanrllonl for non-paynicnt Ex parte 'Mackay, I il., D. & De G. of rent, unless the rent and costs be 550; see Ex parte Taylor, Mont. 240 ; paid, or a liill filed in ciiuity within six Ex parte Bamett, De G. 194. But so months after execution, pro^-ides that Ions as the original mortgagor has no the rights of a mortgagee of the lease notice, his pa^^ncnts on account of this who shall not be in possession, shall debt to his original mortgagee will not be affected, so as he shall, within discharge him. si.x calendar months after execution, (y) Galbraith r. Cooper, S II. L. C. pay all rent in arrc:u-, and all costs and 315. damages sustained by the lessor or (r) The statute (4 Geo. 2, c. 28, s. 2), reversioner, and perform all covenants which bai-s lessees where judgment and on the part of the first lessee or lessees execution have been suffered in eject- (717). 590 NATURE OF NOTICE. equity have, in various cases, made the priorities of incum- brancers dependent upon their performance of this duty ; and we have already noticed the statute (a) (486) Avhich imposes upon judgment creditors and mortgagors, under penalty of losing the right of redemption, the obligation of giving notice to puisne mortgagees, at the date of their securities, of the j)rior incumbrance. Of the Nature of Notice, and the Conditions under which it arises. 1093. Notice is either express or implied; the one kind being a (question of fact, the other arising from construction of law (J)). Actual notice may be verbal as well as written (c), and may be effected as well by the delivery of a document which shows the nature and extent of the claim, as by one in the actual form of a notice (^d). It is not necessary that it should have been given for the purpose of making a transaction valid. If it be actually given the object for which it was given is not material {e) (1175). But the notice must be distinct ; it is not enough to men- tion the fact in the course of a general conversation {f), and there must be clear evidence of it {g), for suspicious circum- stances make no notice. It seems, also, that it ouo-ht to be given by a person interested in the property (A) ; but pro- bably a notice would be held good, if given even by a self- constituted agent, provided it be in behalf of an interested person, and provided the particulars of the claim be clearly set forth. These conditions are no doubt essential, for " flying reports," says Lord Keeper Egerton (z), " are many (a) 4 & 5 W. & M. c. 16. Gledstanes, 8 Jur. N. S. 455. (5) Co. Litt. ?m b. (/) 10 Beav. 123; Edwards v. !^Iar- (c) BrowTie V. Savage, 4 Dr. 0.35. tin, L. R., 1 E(|. 121. North Brit. Ins. Co. v. Ilallett, 7 Jur. {g) Whitfield v. Fausset, 1 Ves. 392; N. S. 1203. Ilinc v. Dodd, 2 Atk. 175; M'Qucen v. (d) Baillic v. M'Kcwan, 35 Beav. Farquhar, 11 Ves. 482; West v. Reid, 177. 2 Hare, 249. (e) Smith v. Smith, 2 Cro. & Mec. (h) Sugd. V. & P. 1040, ed. 11. 231 ; and see 1 Hare, 88 ; Rickards v. (>) Gouldsborough, 147, pi. 67. Mr. WHEN IT A\ JLL 15E GIVEN. 591 times fables Jiiid ii(»t truth." (iencral reputation <ji"a person's insanity in the neighbourhood of his residence is, therefore, no notice of such person's insanity, if actual notice be denied (k). It is material to the effect of notice, where the object is to preserve priority, that it be given before the entire completion of the transaction. It Avill be good if given before the exe- cution of the deed, although the money be already paid, because the payment and execution are but parts of the same transaction (/) ; otherwise it will be good before payment, though security have been given for the consideration money (?«) ; for, perhaps, after notice it will not be paid. If a cheque be delivered and countermanded, notice before with- drawal of the countermand will bind the purchaser (??). In the case of the bankruptcy of the assignor, the notice, if given before the date of the fiat or the filing of the petition for adjudication of bankruptcy, will be good ; though the act of bankruptcy of which the assignee, when he gave the notice, was not aware, had been previously committed (o). It is said that notice ought to be in the very transaction which is in question. This was early laid down of that kind of implied or constructive notice, which is founded upon the relation between principal and agent (p) (1106); and it seems to be understood ( 5-) to apply generally to the doctrine of notice, whether actual or constructive ; subject to the same exceptions which exist in the cases of principal and agent, so far as circumstances allow their application. The general rule has been considered by high authorities (r) to be exem- plified by the fifth resolution of Lord Keeper Coventry, in Coventry (Pow. Mort. 5G1 a, C. cd. G) 543. cites Butcher t'. Stapelcy to the same (0) 12 & 13 Vict. c. lOG, s. 133. effect; but it does not appear whether Re Styan, 1 Ph. 105; 2 M., D. & Dc G. the neighhour's "discourse" was held 210; -see llx parte Heslop, 1 De G., M. to be notice or not. & G. 477. (A) Grccnslade v. Dare, 20 Beav. (^) Fitzgerakl r. Fanconbridgc, 284. Fitzg. 211. (0 Wigg r. Wigg, 1 Atk. 382. (fj) Sugd. V. & P. 1040, cd. 1 1 ; (/h) Ilardingham v. NichoUs, 3 Atk. Powell, 586 a, K. 304. (/•) Sugd. V. & P. 1041, cd. II: (n) Tiddeslcy i: Lodge, 3 Sm. & G. Pow. 58G a, ed. G. 592 TO WHAT PERSONS the East Grinstcd case (5), where a member of parliament, Avho had sj)oken in a debate on a bill to sell charity land, and which was thrown ont, afterwards bought the land, and was held to have no notice of the charitable use ; but it is sub- mitted, that no more can be safely inferred from that case, than the dry point, that knowledge acquired in the discharge of parliamentary duties works no notice as to private trans- actions. Notice operates in a transaction under the direction of the Court of Chancery, just as in any other case (t) ; for the court does not Avarrant the validity of titles, but only employs its officer to investigate them. To wliom Notice should he given. 1094. In considering to Avhom notice should be given, the question Avill be (2^) Avhether, at the time of lending the money, every person of whom the incumbrancer ought to inquire (and unless he apply to all who have control over the fund, he will not exercise proper caution {x) ), has sufficient notice. If the circumstances be such, that inquiry would not have led to a knowledge of the jn'ior incumbrance, the notice will not be sufficient. The possession of the legal interest in, or control over the property, the subject of the security, points out the person to Avhom the notice should be given. The debtor, therefore, where the subject of assignment is a debt, the insurers where it is a policy of insurance, the exe- cutor where it is a legacy, and if it be given in trust, then, after the executor has assented to it, the trustees, are the proper recipients of notice (y). And if there be more than one set of trustees, notice to the trustee who holds the fund will prevail (z). If one of the trustees be himself an executor, notice to the others, before his assent, will be inoperative (a) («) Duke's Char. Us. 639. Cr. 129 ; West v. Reid, 2 Hare, 249 ; (;;) Toulmin v. Steere, 3 Mer. 210. Holt v. Dewell, 4 Hare, 446 ; Ex parte (?/) Smith V. Smith, 2 Cro. & IMce. M'Turk, 2 Dca. .58. 231; Meux v. Bell, 1 Hare, 73; Tim- (::) In re Booth, 21 L.T.239; Bridge son V. Kamsbottom, 2 Keen, 35. v. Beadon, L. R., 3 Eq. 664. (a;) Smith v. Smith, supra. (a) Holt v. Dewell, supra. (y) Gardner r. Lachlan, 4 Myl. & NOTICE SIIOILD BE GIVEX. 593 ao-aiiist a notice to him by a subsequent incumbrancer, though, where it is fully vested in all tlic trustees, notice to one is sufficient {h), as h)ng as he remains a trustee. In like manner, notice by the assignee of the freight of a ship, to the owner's agent who entered alone into the charter-party as ao^ent, has been held sufficient, without notice to the char- terers(c); the agent being the only person witli whom the contract was made, and to whom the money was payable. And where the ship, which, together with the expected pro- duce of the voyage, formed the subject of the assignment, Avas at sea, notice was held to have been properly and sufficiently sent to the master (r/). A mortgagee is, however, not bound to send notice to the master of a ship and cargo at sea {c), notice to the consignees being all that can be reasonably expected, and sufficient to preserve his priority if done with due diligence ; though he might, perhaps, be overreached, if notice Avere given to the master Avhile at sea by a later incumbrancer. 1096. In the absence of any person, having control over a fund consisting of stock, and to whom notice would ordi- narily be given, — as if the sole trustee be dead, and there be no legal personal representative, the incumbrancer should place a distringas upon the stock, and by so doing will gain pi'iority over one who has neglected to take the same precau- tion (/). Or, if the fund be in the hands of a trustee Avho bcino- himself a creditor upon it, cannot complete his title by personal notice, he should take care that it appears in the declaration of trust or other equivalent instrument {g). 1096. Notice to the Accountant-General, of a charging order upon a fund in court, is useless for the purposes of priority ; for though memoranda of such orders are entered in the office of the Accountant-General, they are not con- sidered to be any restraint upon the fund, and a doubt has (h) Menx r. Bell, 1 Hare, 73. "^^~- ^^'^^ ^^ P«itc Kelsall, De G. 3J2. (c) Ganlncrr.Laclilaii.4.Mvl. ."t Cr. (/) ^^^V »• Bridges, 2 Y. & C. C. 129. C. 486. {d) Langton r. Horton, 1 Hare, o40. {9) Commissioners of Public Works (<■) Feltham r. Clark, 1 De G. fc S. '■• Harhv, 23 Bcav. 508. 594 AVHAT PERSONS ARE been judicially expressed, -whether, under such circumstances, it is proper to enter them rather than any other charge (/i). 1097. It seems that notice will be properly given to trustees of a fund which they have paid into court, until the court by dealing Avith the fund has itself become the trustee (/) ; or so long as anything remains to be done in con- nection Avith the fund, wherein the concurrence of the trustee is necessary. Thus where part of an estate had been sold under a decree {k), and the produce paid into court, notice of an assignment of a share of the money was given to the trustee for sale, and held sufficient without a stop order; because the sale of the residue of the estate could not be had Avithout the trustee's concurrence. And payment into court under the Trustee Relief Act, does not divest the trustee of his office, so as to render a notice to him ineffectual (Z). Where the puisne incumbrance was effected upon a fund already in court, and both incumbrancers obtained stop orders on the same day, and so both failed to acquire any priority, a prior notice given by one of them to the trustee was held(w) to be effectual. AVhere it is determined in a suit, that a trustee is affected by notice of an incumbrance, but no persons are in esse who are subjects of the trust, the proper course is not to make a declaration purporting to bind the issue, but merely to declare that the trustee had notice (n). 1098. The holder of, or other person having any control over, tiie property concerning which the notice is given, is bound to accept the notice (o); and, if he disregard it and part with the fund, may be compelled to make it good to the person entitled. The notice also Avill bind him if properly served upon his agent, though the latter, in compliance with the direction of his principal, have not forwarded the notice to him ( p). Neither will it make any difference in the case (A) Warburton v. Hill, Kay, 470. 35. (j) la. (/i) Wise V. Wise, 2 Jo. & Lat. 403. (/.■) Matthews v. Gabb, 15 Sim. 51. (o) Williams v. Thorp, 2 Sim. 257 ; {I) Thompson v. Tomkins, 2 Dr. In re Ilenncssy, 2 Dru. & War. 555. & Sm. 8. (j>) In re Henncssy, supra. (m) Timson v. Ramsbottom, 2 Keen, BOUND BY NOTICE. .095 of a company or association, tliat tlicy have no rules or pro- visions applicable to the receipt of such notices ((7), or that they do not require notices to be given of assignments (r). The Merchant Shipping Act, 1854 (,s), however declares, that no notice of any trust, express, implied or constructive, shall be entered in the register books of such shij)ping, or be receivable by the registrar; but this, as explained by the Amendment Act of 18G2, does not exclude the existence of equitable interests in ships (91). A similar clause is con- tained in the Joint Stock Companies Act, 1862, s. 30 (40). It has been intimated (t), though it was not decided, that the doctrine concernino- notice of assi";nments of choses in. action is inapplicable, where the holders of the funds are public companies, whose acts of parliament embody the pro- vision of the Companies Clauses Consolidation Act (m), by virtue of which the company is not bound to see to the exe- cution of any trust, expressed, implied, or constructive, to Avhich the share may be subject; and which declares the receipts of the party in Avhose name the share stands in the company's books, a good discharge for dividends or other sums payable in respect of the shares, whether the company have or have not notice of the trusts. 1099. A feme coverte or an infant is just as much bound by notice as an adult (.r). Of Constructive Notice. 1100. Implied or constructive notice has been defined to be knowledge which the courts impute to a person ujion a presumption so strong that it cannot be allowed to be re- butted, that the knowledge must exist or have been conmiu- nieated {y). It extends to matters affecting the title to property, and to circumstances which would entitle persons to equitable priorities, or change the character of rights which (//) Williams v. 'I'liorp, supra. (a-) Pei" Lord St. Ix^onards, 1 Dm. (;•) Ex jiarte Patrli, 7 Jur. 820. & War. 1G6. As to notice under a (.<) 17 & 18 Viet. e. 104, s. 43. power of sale binding an infant heir, {t) Dunster v. Lord Glcngall, 3 Ir. see Traeey v. Lawi-cnce, 2 Drew. 403. Ch. R. 47. (y) Hewitt v. Loo.«eniore, 9 Hare, (w) 8 Vict. c. IG, s. 20. 44'J ; I'liunbe v. Fluitt, 2 Anst. 432. 596 COXSTRUCTIVE NOTICE BY depend upon want of notice, but not to such as merely relate to the motives and objects of the parties, or to the consideration upon which the matter in hand is founded (r). It is a pre- sumption adopted for the prevention of fraud, and does not necessarily agree with, but is often contrary to, the proba- bilities of the particular case. But it will not always be raised in opposition to direct proof that no notice really existed («); though in such cases of fraud, as wilful blind- ness to facts, and neglect to make inquiries, the court will act upon the presumption, notwithstanding such evidence. 1101. Constructive notice 1. may be imputed to a person Avho is guilty of actual fraud, or of negligence amounting to evidence of fraud (1103), of which a man cannot be allowed to take advantage : 2. Or it may arise from the relation in which he stands towards others who have notice of certain facts or instruments ; and this arises between the principal and his agent (1106) on a presumption (without which, any man might commit a fraud by means of his agent), that the latter communicates to his principal whatever know- ledge he has in the matter that is necessary for the principal's safety (/>») : 3. It also arises from personal knowledge of parti- cular instruments or facts, which, if followed up, would lead to the knowledge imputed (1120); because it is a presump- tion of law that a purchaser has investigated the title to the property which he purchases, and has examined whatever forms a link, directly or indirectly, in that title (c) : 4. Con- structive notice also arises from the presumed publicity of general acts of parliament, and, in certain cases, of judicial proceedings (1153). 1102. In cases of constructive notice the difficulty is usually less where there is actual fraud than where it is to be (c) Tcr Lord Chelmsford in Eyre v. & War. 20. IJut it was held that pur- Burmester, 10 H. L. C. 114. chasers for valuable consideration might (a) See Earl of Portsmouth v. Lord claim to be without notice under such Effingham, 1 Ves. 43.j. a settlement as might be made by the (/y) 3 Myl. & K. 719. apparent owner of the estate, without (c) Jones V. Smith, 1 Hare, 43 ; 1 looking into the deeds. (Whitfield v. Ph. 244 ; West v. Keid, 2 Hare, 249 ; Faussett, 1 Ves. 392.) Butler V. Earl Poitarlington, 1 Dru. NEGLIGENCE AND FRAUD. 0&7 determined, whether the presumption of knowledge arises by reason of negligence so gross as to amount in the view of a court of equity to evidence of fraud, or wliether it fails because the person sought to be charged has shown no more than want of prudence or caution. AVhere a person has actual notice that the estate with which he is dealing is charged or otherwise affected, it is his duty to inquire into the extent and nature of the charges which affect it, and he will not be justified in assuming that the reference is only to charges which are already known to him (d). If he have no actual notice that the estate is affected, and there be no turn- ing away from the knoAvledge of facts, which the res yestce Avould suggest to a prudent mind ; if mere want of caution, as distinguished from wdlful blindness, is all that can be imputed ; there will be no constructive notice, but a pur- chaser (e) will be considered to be such bondjide and without notice (/). Of Constructive Notice hy Nef/ligence and Fraud. 1103. Positive neglect to investigate the title (y) of an estate, or to inquire after the deeds (A) which are the evi- dences of title, or the wilful disregard of matters affecting the estate, the nature of Avhich would be immediately disclosed by inquiry, are dealings so obviously tending to fraud that although the omission to inquire does not proceed from frau- dulent motives {i), the negligent person is held to be affected with all the notice that the fullest inquiry would have brought out (1532) as to the title of the person who has possession of the deeds, or who claims an adverse interest in the estate. So a person, who either by his own gross negligence or by (</) Jones V. Williams, 21 Bcav. 47, o47. 5 Jar. N. S. lOGO. (h) Kennedy r. Green, 3 Mvl. & K. (<0 It is perhaps liardly necessary to G99; Jones v. Smith, 1 Hare, 4."?; West remark, that the word " pimhasi r " r. Keid, 2 Hare, 24;t; Hewitt r. Loose- applies also to a mortgagee, who is a more, 9 Hare, 449 ; Whitbread v. Jor- Ytrnvhti^^r pro tanto. (1 T. R. Tin.) dan, 1 Y. & C. 303. ■ (/) 1 Hare, 43; 2 id. 2J9. (/) Jones v. Williams, sn]>ra. (^) Worthington v. Morgan, 10 Sim. 598 CONSTRUCTIVE NOTICE BETWEEN omitting to employ a proper agent, fails to discover, or enables another to commit a fraud, will, though morally guiltless, be as much affected as if he were the actual con- triver (A). Thus, where a first mortgagee was induced by his solicitor to assio-n over without consideration an earlier mortofafre, Avhich had been executed but not acted on, he was not allowed to say afterwards that he did not know what he w^as doing. And where any peculiar circumstance, such as the unusual position of a signature, or manner of engrossing a deed, would j^ut a disinterested professional man u})on inquiry, a mortgagee (Z) cannot set up the defence that he had no professional adviser, or that he employed one, out of the ordinary course, who had an interest in concealing the fraud. But it will be observed, that a peculiarity in a deed, which is altogether unconnected with the real defect in the title, will not lead to notice of that defect. Hence, though the absence of a receipt on a conveyance may be notice of a lien for unpaid purchase-money, it has no weight, even when combined with other circumstances, as notice that the grantor was of unsound mind, or that he executed the deed under undue influence (yn). In like manner, although neglect to inquire for the deeds gives notice of the holder's title, it does not ofive notice of a fraudulent dealing with the estate com- mitted by the person from whom inquiry should have been made («). 1104, The onus lies on a person who claims priority over another, on the ground that he took Avith notice of an earlier security, to prove that he had such notice ; and it is not suffi- cient for this purpose merely to show that the deeds were in the hands of the earlier incumbrancer, if, under the circum- stances of the title, he was the person entitled, irrespective of his security, to the custody of them (o). (/<■) Ilioms V. Holtom, 16 Bcav. 259; (m) Grcenslade v. Dare, 20 Bcav. 16 Jur. 1077 ; Roddy v. Williitins, 284. 3 Jo. & Lat. 1. («) ilipkins v. Aniery, 2 Gif. 292, (I) Kennedy v. Green, 3 Myl. & K. C Jur., N. S. 1047. 712 ; Mai-joribanks v. Ilovcnden, Dru. (o) Ex parte Hardy, 2 D. & C. 393. 11. rUINX'IPAL AND AGENT. 599 1105. It lias been said, that the argument of negligence against negligence, like that oi" estojijicl against estoppel, sets the matter at large (j>). Of Constrnctirc Notice hcfircni Priiiripnl arid Jf/nif, 1106. Notice to him w\u) transacted, is notice to him ("or Avhom he transacted (rj) ; and the infancy of the latter makes no difference (r)( 1099). The rule will affect a trustee or purchaser on behalf of the principal (s). As where A., having agreed for a lease, had notice that B. had a prior agreement, and thereupon procured the lease to be made to his son ; the latter was afi'ected by the notice acquired by his father. And thus the knowledge acquired by the counsel, solicitor, or other agent of several contracting parties, whilst acting for one of them in the same transaction, may take effect (0 by Avay of notice to the others. And for the pur- pose of afi'ecting the client with notice, the country solicitor and his London agent are as one person ; the notice acquired by either of them equally affecting the client (?0. It ^vas formerly understood, that the principal is affected by notice of such matters only as come to the knowledge of the agent, (7;) Per Sir J. Stuart, V. C, IS that tlic principal has notice; antl the Jur. 373; see Wrout i: Dawes, 2o Beav. very fact that the notice does not dei)eud .380 ; 4 Jur., N. S. 397, and Co. Litt. uj)on communication, and therefore 352 h. cannot be established by evidence, shows ((/) ^^em' V. Abncy, Freem. Ch. that it is not actual notice, which is a 150; 'ril)bits V. George, 5 Ad. & El. (piestion of fact, but implied or con- 107 ; Downes r. Power, 2 Ba. & Be. structive notice, which is a question of 4't9. It has been said by Lord Chelnis- law. (Co. Lit. 309 b.) Further, the prin- ford, C. (3 De G. & J. 554), that the cipal is not always bound by the know- notice which the client receive.'^ through ledge of the agent; and the question his solicitor ought rather to bo con- whether he is so or not is entirely a sidcrcd as actnal than as constructive ([uostion as to the application of the notice, because it does not depend ujion rule of law. communication ; a person who employs (?•) Toulmin v. Steere, 3 Mer. 210. a solicitor being bound by the know- (s) Merry r. Abney, 1 Ch. Ca. 38 ; ledge which he has acquired, whether Coote v. Mammon, 5 Bro. P. C. 335. it lie connnunicatcd or not. It is sub- (t) Wan-ick r. AVarrick, 3 Atk. 291; mittcd that even if this were universally Le Neve v. Le Neve, id. G4S ; Fuller v. true, the supjiosod consequence would Bcnctt, 2 Hare, 394; Twcedalc c. Twcc- not follow. When the knowledge of dale, 23 Beav. 341. the agent and his agency have been (?/) Noiris v. Le Neve, 3 Atk. 26 ; proved, it is by a conclusion of law Sugd. V. & P. 1041, ed. 11. 600 CONSTRUCTIVE NOTICE BETWEEN at the particular time, while he is actually concerned for the principal, and in the course of the very transaction, which becomes the subject of the suit ; for otherwise, it was said, the men of the most practice and eminence would be the most dangerous to employ; and because an agent may forget what he learned in a different affair (.r). If, however, it can be shoAvn that the prior transaction was present to the agent's mind ( ?/), the restriction fails ; and if the solicitor who effected the prior mortgage be himself the second mortgagee, he will be held(2r) to have notice; but here the case Avould rather amount to actual, than only to constructive notice. This principle extends to the case, where the knowledge is acquired by the steward of a manor, who, after having admitted prior mortgagees, cannot take a morto-ao-e himself, and allege that he had no notice of the earlier ones («). 1107. It has also been determined, that where an agent is employed by a person in effecting several incumbrances, and acts in those matters for the mortgagees also, although the transactions be distinct, the later mortgagees shall be affected (b) by notice of the earlier mortgages ; and so it is where the agent for the mortgagees is himself the mort- gagor (c). This distinction appears to be made on the ground that the several mortgages, at least where they follow closely upon one another, amount to a continuous dealing with the same title ; and that the earlier ones cannot, therefore, with any probability, be thought to have been forgotten. If it should (a;) Fitzgerald t". Fauconbridge, Fitz. seems probable ; l)ut his authority does 211 ; Lowther v. Carlton, 2 Atk. 242 ; not bear him out. (Wclman v. Warren, Worsley v. Earl Scarborough, 3 Atk. 2 Va\. Ca. Abr. 590.) 302; Preston v. Tubljin, 1 Vern. 287 ; {b) Brotherton v. Ilatt, 2 Vera. 574; see Iliem v. Mill, 13 Ves. 114; 2 Eq. Hargreaves i?. Kothwell, supra; Winter Ca. Abr. 682, D. b. v. Lord Anson, 1 Sim. & St. 434 ; (y) Ilargreaves v. Rothwell, 1 Keen, 3 Kuss. 493 ; GciTard v. O'Jieillv, 3 I). 154. &W.4U. (z) Perkins v. Bradley, 1 Hare, 219. (r) Sheldon v. Cox, Ambl. 624 ; 2 (a) Brotherse v. Bence, Fitzg. 118. Eden, 224 ; Dryden v. Frost, 3 My. & Mr. Coventry says the prior entry must C. 673; Marjoribanks r. Ilovenden, have been during the steward's own L)ru. 11. time (2 Pow. 563, note, 6th ed.), which PRINCIPAL AND AGENT. 601 be held that the agent Avho was concerned in the prior trans- actions may be considered to have forgotten them in the subsequent one, he himself, where he is the subsequent mort- gagee, might claim exemption under the same doctrine. In considering this exception as stated above, it will be observed that, though the transactions, in which the notice is acquired and takes effect, are distinct, it is treated as applying only where the principal, or person during whose continuous em- ployment the knowledge is obtained, is the same. And though Lord Eldon appears to have stated (c?) (extrajudicially) the exception in Avider terms, considering the question to be involved, whether one transaction might not follow so closely upon another, as to render it impossible to give a man credit for having forgotten it ; and saying he should be unwilling to hold that if an attorney had notice of a transaction in the morning, he should be considered to have forgotten it in the evening ; yet it has been since laid down (e) that this is not to be taken as implying, that in every case in which, from the short interval between the transactions, the agent must have had knowledge, the principal shall have notice, and that the exception Avould not be applicable, without the additional circumstance that the solicitor was acting for the same parties. The employment of the agent must also have been of a responsible kind, and not merely ministerial ; as in obtaining the execution of the mortgage deed {f), 1108. AMiere the agent has been employed by both parties, one of them may be affected with notice of what the agent knew as agent for the other, before his retainer by the person affected (^). "Whatever the agent, during his retainer, knows as agent for either party, may possibly in some cases aflect both, without reference to the time when the knowledge was first acquired. {(1) Mountford v. Scott, 3 Mad. 34 ; (r) Fuller v. Benett, 2 Ilaiv, 394. T. & R. 274; and observe that the (/) Wyllie r. Pollen, 32 L. J. (Ch.) marginal note to the first of these 782. reports is not borne out by the jndi;- (</) Fuller r. Benett, 2 Ilarc. 3l>4 ; uiout. Frail r. Ellis, 16 Beav. 3."(). M. VOL. II. i: U 602 NOTICE BY AGENCY. 1109. The following appear to be some of the pi'actical results of these decisions. 1. A mortgagee will not generally be affected with notice of matters touching his security, by reason of knowledge acquired by his counsel, solicitor, or other agent, in a differ- ent transaction : or of matters which it was not the duty of the agent to communicate, or material for the principal to know (h). 2. AVhere an agent has been employed both by the same mortgagor, and by several successive mortgagees, in effecting the morto;ao;es, the later mortgagees have notice of the earlier mortgages. 3. As to such of the securities, in which the agent was not employed by both parties, the later mortgagees shall not, by employment of the same agent, be necessarily affected by notice thereof. 4. Yet they may be so affected, if it be shown that at the time of making the later mortgages, the earlier ones Avere known to, and at the time were actually j)resent to the mind of the agent. And it seems (i), inferentially also, if one transaction so closely followed the other, as to afford an irresistible presumption, that the earlier one was so present to his mind. 1110. In the cases in which principals have been held affected with notice of facts learned by their agents, in the course of previous transactions, the interval between the different transactions has been small. Six weeks (k), seven months (Z), and a year(m), are examples of such periods. In a case (n) which has been often referred to, and in which the purchaser of an estate, the vendor whereof agreed after the commencement of the treaty to give his creditor a mortgage upon it, was held bound by the notice of his solicitor, who had been employed about both the sale and the mortgage ; (A) Wyllie v. Pollen, supra. (I) Mountford v. Scott, 3 Mad. 34. (i) See Gerrard v. O'Roilly, 3 Dru. (ot) Hargreaves f. Rothwell, 1 Keen, & War. 414. 15+. (k) Winter v. Lord Anson, 1 Sim. («) Fuller v. Benett, 2 Hare, 394. & St. 434 ; 3 Russ. 493. FRAUD OF AGENT. 603 five years hud indeed elaiKscd since the treaty was Ijoguii ; but that case was not determined on the i'ootinj^ tliat the treaty and the ultimate sale were different transactions, but on the ground that the mortgagee's solicitor had notice of the matter, as solicitor of the mortgagor in the very transaction in which the mortgagee had employed him. Where a person acted for both parties to a puisne mort- gage, the knowledge of a prior incumbrance, which it was proved was present to his mind at a certain time, Avas not imputed two years later, as notice to the subsequent mort- gagee (o). 1111. Notice does not arise between principal and agent, where the transaction effected by the agent is itself founded in fraud, in which the agent is so concerned that it is cer- tain he would conceal it ; as where {p) a mortgagor by fraudulently obtaining an assignment of the mortgage, effected a new security to another person, acting himself as solicitor to both mortgagees; or again, \i{q) acting as such solicitor, and knowing of a prior incumbrance, he jjrepares and procures the owner of the estate to execute a covenant that it is free from incumbrances ; this being evidence of deli- berate concealment. 1112. But if the matter be not fraudulent, apart from the concealment of the fact in question, so that there is room for the presumption of disclosure, upon which the courts act in cases of constructive notice, the mortgagee may be affected by the agent's knowledge. Therefore, where there was a first mortgage by deposit of deeds, and the solicitor who effected it, being also the mortgagor, mortgaged again, acting as solicitor for the ncAv mortgagee, and not disclosing the prior deposit, although it was held that the new mortgagee had no notice of that deposit, because particular evidence forbad the presumption of disclosure, it was intimated that (o) Tylee r. Webb, 6 Beav. 554, ami K. 712. see Lloyd v. Attwood, 3 Dc G. & J. (y) Thompson r. Cartwright, 9 Jiir.. 614; Edgecuml.e v. Stranger, 1 Jur. N. S. 940, 1215; 33 Beav. 178; 2 De 400. C, J. & S. 10 ; 33 L. J. (Ch.) 234. (/;) Kennedy r. Green, 3 Myl. & K n 2 604 WHAT CONSTITUTES AGENCY. the doctrine established in Kennedy v. Green did not apply (r). The distinction between the cases may be thus stated. In Kennedy v. Green, tlie transaction could not have existed Avithout fraud, or consistently with a knowledge by the mort- gagee of the facts. There could, therefore, be no presump- tion tliat tlie fraudulent act was disclosed. In Hewitt v. Loo senior e the transaction being valid in itself, and its ex- istence not inconsistent Avith a disclosure of the first mort- gage (for the second mortgagee might Avell have been content to take subject to the first), there Avas room for a presumption of disclosure, and the ordinary doctrine of notice might apply. In all these cases the burthen of proof is on the client to show the probability of non-communication of the fact by the solicitor (.<?). 1113. Actual retainer of a person as agent seems clearly unnecessary to let in the doctrine of constructive notice ; it is even immaterial if the person to be affected kncAV nothing of the matter until after its completion, if he then acted upon or adopted it ; for by doing so, he makes the agent his agent ab initio. Xor is it important that the agent, if he Avere trusted, was recommended by the very person whose acts are the subjects of the notice (t). 1114. If the agent be employed in part only of the trans- action, notice arises of whatever came to his knowledge during his agency {u) ; at the termination of which the client takes the business Avitli all the knoAvledge acquired in relation to it. What might be the result of the mere delivery of papers to the agent, that he might enter upon the business, if he never did so, and never inspected them, has been doubted (a-); and probably could not, a priori, be determined. (/•; Hewitt v. Loosemorc, 9 Hare, (t) Jennings z?. Moore, 2 Vern. 609 ; 449; 15 Jur. 1099. Also Atterbury f. S.C., Blenkame v. Jennens, 2 Bro. P. C. Wallis, 2 Jur., N. S. 1177, 8 De G., M. 278 ; Le Neve v. Le Neve, 3 Atk. G4G. & G. 454, and see Nixon v. Hamilton, (?<) Bury v. Bury, Sugd. V. & P., 2 D. & Wal. 304. A]>i). No. 25, 11th ed. ; Pow. Mort. («) Thompsons. Cartwright, 33 Beav. 587, 6th ed.; see Vane r. Lord Barnard, 178 ; 9 .Jur., N. S. 940 ; S. C. id. 1215 ; Gilh. Erj. R. 6. 2 De G., J. & S. 10. (^0 Pow. Mort. 588, cd. 6. INTEREST OF AGENT. 605 1116. It has been sai(], that if the mortgagor himself pre- pare the security (//), and no other solicitor be em})loyed, the mortgagor will still be the mortgagee's agent, for he is in- trusted with the duties which belono; to the mortgagee's solicitor ; aiul it makes no difference that the mortj^agee pays him nothing for his services, because it is the nature of the transaction that all the expenses should be borne by the mortgagor. But if the mortgagee employ no solicitor, it will not be assumed, in the absence of evidence, that the mort- gagor's solicitor acted for him (z). The proposition that the mortgagor, where he is a solicitor, will be assumed to act as the mortgagee's solicitor, is, however, disputed by Lord Chelmsford (a), who puts the case on the same footing as that in Avhich the mortgagor alone employs a solicitor ; who is not to be treated as the mortgagee's agent unless there is evi- dence of the existence of that relation betAveen them. 1116. It is the duty of the giver of the notice to take care that it reaches the person who has the control over the pro- perty to be affected by it. And notice ought not to be given only to an agent w^ho as assignor has an interest in with- holding the knowledge of it; nor, a fortiori, ought a mortgagee to trust that the principal will have constructive notice, through the agent as assignor. Thus the knowledge which the secretary or agent of a public company has, as mortgagor in his private capacity, of dealings with shares in, or in- surances granted by, the company, will not create notice to the company of such dealings (1136), especially where, in the case of a policy effected by an agent for the purpose of security, there is nothing on the face of the policy to show that he effected it in that character (Z»). But it will be other- wise as to a policy effected through the attorney of the assignee, who is also the agent of the insurance company, (y) Kennedy v. Green, 3 Myl. & K. {a) Espin i'.Pemberton,3 De G. & J. 712; Hewitt v. Loosemore, 9 Hare, 547. ^•tS. (^>) In re Hennessy, 2 Pni. & War. (z) Atterbury r. Wallis, 2 Jur. N. S. 555 ; Ex parte Boulton, re Sketchlcy, 343. But the L. J J. decided the case 1 De G. & J. 163; 3 Jur., N. S. 425 ; accordin}: to the rule in Hewitt ('.Loose- and see Bartlctt v. Bartlett, 1 De G. more, 8 De G., M. & G. 454. & J. 127. 606 OFFICERS OF COMPANIES. where the company has authorized him to receive notices, and has agreed that they shall be as valid as if served on the company at their ofhce (c). 1117. Where the security consists of shares in a public company or undertaking, if the security be made by the directors and secretary for the purposes of the company, no further notice "will be necessary (c?) ; if otherwise, notice given to the secretary or other officer who represents the company will bind it (e), and the assignee will not be affected by the neglect of the recipient of the notice to make a proper entry (f) ; although a subsequent assignee, who is damnified by the neglect, may have a remedy against the company. Notice to the director of a company is not sufficient, for though it was held, where a director, being also the assignor and an auditor of a company, had notice of the assignment, that no formal notice to the company was necessary (<7), it has been observed, that such a doctrine might compel a creditor to go half round the kino;dom to discover whether notice had been given. And neither an auditor (A), direc- tor (z), or actuary [j), are now considered proper recipients of notice to bind the company with w^hich they are connected. Notice to the solicitor of trustees will bind them (A). 1118. Notice to one of several partners is notice to the partnership (Z) ; but in the case of mutual assurance com- panies, wherein every insurer becomes a partner, his dealing with his own policy will not be considered as a partnership act, affecting the society (m) with notice. It has been in- timated that notice to a member of a joint-stock banking (c) Gale V. Lewis, 9 Q. B. 7.30. (J ) Id. ; Ex parte Watkins, 2 .Mont. (d) Ex paitc Stewart, 11 Jur., N. S. & Ayr. 348. 25. (/ij) Rickards v. Gladstanes, 8 Jur., (^e) In re Henne.ssv, 2 Dru. & "War. N. S. 4.55. .555. (l) Travis v. Milne, 9 Hare, 141 ; (/) North Brit. Ins. Company v. In re Worcester Com Exchange Com- Hallett, 7 Jar., N. S. 12C3. pany, 3 De G., M. & G. 180; and cases (g) Ex parte Waithman, 4 Deac. '< in next note. Ch. 412. (m) Thompson v. Speirs, 13 Sim. (A) In re Hennessy, supra. 469; Re Bromley, id. 475; Martin v. (i) Ex parte Burbridge, 1 Dea. 142. Sedgwick, 9 Beav. 333; Ex parte Ark- TUUSTEES AND CESTUIS QUE TRUST. 607 company, is not, since 1 & 2 Vict. c. 96 (n), notice to the company ; which is in the nature of a corporation by virtue of the statute, and not of an ordinary copartnership suing jointly (o). 1119. Notice to the trustee binds the cestui que trust (p). If there be several trustees, notice to one of them is generally sufficient, so long as he lives, and the circumstances remain un- altered(7), and it is not matei'ial in what character the trustee acquired notice, because it is the duty of the mortgagee to apply for infoi-mation to every trustee. And the mere parti- cipation by the trustee in the transaction will work sufficient notice, if the trustee fill the character of assignee ; because it is against his interest to conceal it. AVhere, being the assignor, it is his interest to withhold his knowledge, notice does not arise merely from his participation in the transaction : but if a formal notice be given to him as a trustee, it will be good, notwithstanding his interest in concealing it(r). Where there were two sets of trustees, one of an annuity, and the other of a term by which the annuity was secured, notice of a prior incumbrance to one of the trustees of the annuity was held binding (s), although the trustees of the term had no notice. Of Constructive Notice hy Recitals or hy Reference. 1120. A\Tiere a purchaser cannot make out a title but by a deed which leads him to another fact, he shall have notice of that fact; for by going from one deed to another, the whole matter would have been discovered, and it is crassa negligentia if he sought not after it (0- It is, therefore, a Wright, 3 Mont., Dea. & De Gex, 129; {q) Meux v. Bell, 1 Hare, 73; 6 Jur. notwithstanding Duncan v. Chamber- 123 ; Smith v. Smith, 2 Cro. & Mee. Inyne, 11 Sim. 123, and Ex parte Rose, 231. 2 Mont., Dea. & De Gex. (r) Browne v. Savage, 4 Dr. 635; (n) Extended by 3 & 4 Vict. c. Ill, Willes i\ Greenhill, 29 Beav. 376, and so made perpetual; 5 & 6 Vict. 387; and 7 Jur., N. S. 1134. c. 85. («) Wise r. Wise, supra. (o) Steward v. Dunn, 12 Mees. & (0 Moore v. Bennet, 2 Ch. Ca. 246 ; \V. 664. Bacon v. Bacon, Tothill, 231. (;;) Wise v. Wise, 2 Jo. & Lat. 403. 608 NOTICE BY KECITALS AND rule, that notice of whatever is recited or referred to in an instrument is effected by notice of the instrument itself (1135); except, it seems, that in cases of fraud, none but the parties to the deed are affected by constructive notice of the fraud (?<). Hence notice of a lease is notice of all cove- nants in it, whether usual or unusual (x). And the mortgagee of a lease, wherein was recited the surrender of a former lease, made in consideration of the surrender of a yet earlier one, which showed the fact in question, was held to have notice of the fact(y). So a purchaser is bound by judg- ments affecting the land, and recited in the deeds under Avhich he claims (r) ; and by a mortgage, though not parti- cularly si)ecified («), if the deed, subject to or under which he claims, show the existence of prior mortgages; even where the mortsagee had not taken "possession of the deeds. But there is no notice where an express representation is made concerning the deed, which is calculated to mislead, and to disarm inquiry (b). And though a deed was expressly made without prejudice to the incumbrances affecting the estates, a puisne mortgagee was held not to be affected with con- structive notice of an equitable assignment of a prior charge, Avhich had been subsequently released by the person legally entitled to it ; the release being within the knowledge of the subsequent mortgagee, and it being apparent under the cir- cumstances, that the released charge was not intended to be included among the existing incumbrances (c). 1121. Where a widow, tenant for life, married, and repre- sented herself to be, and dealt with the estate as, owner in fee, and conveyed in that character to her husband ; on a (?0 Read v. Ward, 7 Viii. Abr. 123. (a;) Taylor v. Stibbert, 2 Ves. J. 437; Cosser v. Collinfre, 3 M. & K. 283; Martin v. Cotter, 3 J. & L. 497 ; Grosvcnor v. Green, 5 Jur., N. S. 117. (jy) Coppin v. Femyhough, 2 Bro. C. C. 201; and sec Risco r. Earl of Eanbur}', 1 Ch. Ca. 2U1 ; Davie.s v. Thomas, 2 Y. & C. 234. (z) Hamilton v. Roysc, 2 Sch. & Lef. 315 ; Mertins v. JollifFc, Anibl. 31 1 ; see Infiram v. Pelhani, where some oi" the incumbrances being par- ticularly s))ccified, the purchaser was not bound by those not specified or referred to. (Ambl. 153.) (rt) Poland V. Eland, 1 Beav. 235 ; Farrow v. llecs, 4 Beav. 18. (/>) Drysdale v. Mace, 2 Sm. & G. 225; 5DeG., M. & G. 103. (c) Greenwood v. Churchill, 6 Beav. ;J14. CONTENTS UF IJUCUMKNTS. 609 question hctween lii.s heir and licr ai)j)ointec under a jiower executed before her second marriage ; it was held (r/), that the husband was not a purchaser for vahiable consideration without notice of liis wife's real interest ; for he was either iiecicliijent in not examinino; the oiiU (hcd under which she claimed, or guilty of fraud in taking a conveyance in fee with knowledge of her limited interests. So a broker who insured ships by direction of the owner, knowing that they were mortgaged, Avas presumed (e) to have known also that in the morto;ase deed was a covenant to insure the shii)S ; whence, by inquiry of the mortgagees, he might have ascer- tained that the insurance was made for their benefit, in pur- suance of the covenant. And notice that a ship is in mort- gage, is enough to put brokers advancing money upon inquiry whether the mortgage does not include the freight, earnings and profits (f). And so, where the appointees of a tenant for life had notice of a prior mortgage, containing covenants by the appointor not to exercise his power to the mortgagee's pre- judice, they were postponed to him, though a reversionary term, not subject to the mortgage term, had been limited U) them for their security, and though taking under the instru- ment which created the power, they had an estate which the mortgage did not touch (^). 1122. Xor is the rule under consideration confined to ])lain recitals of matters of fact. A purchaser will generally be bound by the particulars, and even sometimes by the C(iuities, arising out of an important or peculiar transaction, recited or referred to in a dged or abstract, of which he has notice, and concei'ning which transaction it becomes his duty to inquire. Thus notice will be imputed of the particulars of a trust, of the existence of which there is actual notice (/t) ; C)f whatever may concern the ])arties in the execution of a (d) Jackson r. Rowe, 2 Sim. & St. 10(). 472; thouj^h a lontrarv doctnne wns (/) Gibson ?-. logo, 6 Hare, 112. fonnerly held; see Phillips v. Rcdhil, (r/) Hurst i: Hurst, 16 Bcav. 372. cited 2 Vern. UK). (//) Malpas r. Ackland. 3 Ku.ss. 273: (^) Ladbrookc v. Lcc, i De G. & S. Anon., rrccni. Ch. 137, jd. 171. 610 NOTICE BY CONTENTS AND poAver (?■), of the revocation or exercise of which there is notice ; and of the real circumstances attending dealings with an estate, of w^hich the solicitor of the family to whom it belonged appears as a purchaser {k). And it will be pre- sumed, that a settlement made after marriage was known (Z) to be supported by an antenuptial agreement. So the pur- chaser of an under-lease was fixed with notice, through the original lease made by husband and wife, of the nature of her interest {m), which was in fact separate and inalienable. And a person who lent money on the security of a contract ibr sale was not alloAved to tack for want of equal equity with another incumbrancer, of Avhose charge he had no distinct knowledge ; because {n) the contract being for a purchase free from incumbrances, he knew that he was dealing with a fund, out of which any incumbrances must be paid. 1123. So, if there be anything peculiar in the manner of conveying. A purchaser has notice of a prior title, by the concurrence in his conveyance of persons interested under that title, as of devisees (o), where the grantor claims as heir at laAV ; although the deed contain no explanation of their concurrence. But it has been held, that a covenant in a settlement that a' minor should execute, Avas no notice of his mterest (p). " This might have had some colour," Lord Northington is reported to have said, in answer to the argument, that inquiry should have been made, " if he had been of maturity, but it Avas a covenant necessary to make him a party to the settlement. Therefore, I think the cir- cumstance does not prove notice." This distinction seems to be as doubtful, as the reasoning is obscure. 1124. A morto;ar>;ee has been held affected with notice of an agreement for a prior mortgage, by notice that the mort- (i) Lord of Banbury's case, Freein. (w) Lacey v. Ingle, 2 Ph. 413; see Ch. 8 ; and Lord Crawly 's case, cited also Taylor v. Baker, Dan. 71. there; Robinson v. Briggs, 1 Sm. & Gif. (o) Burgoyne v. Hatton, Bam. Ch. 188. 236; and see A.-G. v. Hall, 16 Beav. (k) Robinson v. Briggs, supra. 388. (I) Fen-ars v. Cherry, 2 Vem. 383. (p) Howarth v. Dean, 1 Eden, 355, (/it.) Steedman v. Poole, 6 Hare, 193. EFFECT OF DOCUMENTS. Oil gagor had not paid for the estate {q), the conveyance being also peculiar in form. It has been said, that the inadequacy of the purchase-money, in comparison of the real value of the property, is notice of the existence (r) of an incum- brance. And where a lease, being a mere husbandry lease, was made of charity lands, at a small rent, and for a long period, the transaction was held so manifestly bad for the charity, as to bear on the face of it notice of a breach of trust (5); with which the i>urchaser was accordingly fixed. 1 125. The circumstance that, upon the renewal of a lease, the lessors are not the same persons who were lessors in the oritrinal lease, is one which ou2;ht to lead the lessee to incjuire into their title, and is sufficient {t) to fix him with notice of a trust. It is, however, to be observed with respect to the title to leases, that, although a purchaser is bound to know from whom the lessor derived his title, he is not bound to take notice of all the circumstances under Avhich the title is derived. So that Avhere the infirmity of a lease depends upon matters dehoi-s the instrument, the purchaser will not be affected (z<). 1126. A distinction is here to be noted, between notice of instruments, or matters, which must of necessity, and of those which do not of necessity, affect a title. Actual notice of a deed of the first kind is constructive notice (a:) of its contents, and of every thing to which it refers. But notice of a deed of the other kind only requires (y) that the person who has it shall act honestly, and shall not be guilty of gross negligence ; such a person will not be affected only because he has not done all that a prudent, cautious or wary person would have done, unless it can be said not only that he might, but also that he ought, but for gross negligence, to have ascer- tained the fact, with notice of which it is sought to affect him. (<7) Frail r. Ellis, IG Bcav. 350. ((/) Id.; A.-G. v. Backhouse, 17 Vcs. (r) Stockdalc ?•. South Sea Com- 283. pany, Barn. Ch. 367. (j-) Jones r. Smith, 1 Ph. 253. («) A.-G. i\ Pargeter. 6 Bcav. l.jO; (;/) Id. 254, 257; and see Finch c. and see A.-G. v. Pilprim, 12 Bcav. 57. Shaw, IS Jur. 935. (0 A.-G. r. Hall, 1(> Bcav. 3SS. 612 NOTICE BY CONTENTS AND Hence opinions upon an abstract, or any thing appearing upon a deed, -wliich may possibly leave room for suspicion of Avliat the purchaser cannot know to be, and Avhich may not be true, is not notice which will aifect him {z). And where an abstract contained a certificate of the redemption of land tax, not by a tenant in fee, but by persons described as trustees and guardians of a minor, and on his behalf, it was held that the purchaser was not bound to inquire how the redemption was wrought out, and was not fixed with notice that the charge had not been extinguished («). The rule, that circumstances which might lead to suspicion only are not notice, also appears by the decision, that an entry in the margin of an insurer's declaration, directing that letters re- lating to the policy should be sent to a certain solicitor, was no notice {h) of the interest of that person's client in the policy, there being nothing to show for whom he acted, or that any change of interest had taken place. It is ob- vious that such cases as these depend mainly upon their own circumstances, and it has been well observed (c) that that which will not affect one man may be abundantly sufficient to affect another. 1127. It has been doubted (</) Avhether a purchaser from an heir at law, with notice of a Avill of the ancestor under whom the heir claimed, Avould be affected with notice of the contents of the Avill, though in truth he were ignorant of them, and even misled by the heir at the time of the pur- chase. It has been intimated that such a case would depend upon circumstances. If the testator had been long dead, the heir long in possessi(m, and the purchaser had otherwise credit for good faith, it has been said that a court of equity would not interfere against the legal title, only because the purchaser had notice of the will respecting which he was (z) See M'Queen v. Farquliiir, 1 1 (h) West v. Reid, 2 Hare, 249; see Ves. 482; Whitfield v. Fausset, 1 Vcs. Wyatt v. Barwell, 19 Ves. 440; Eyre 302. See Dodds v. Hills, 2 H. & M. v. Dolphin, 2 Ba. & Be. 301. 424. (c) Per Wigram, V. C, 1 Hare, 53. (a) Ware v. Lord Egmont, 4 Dc G., (<•/) In Jones v. Smith, 1 Hare, 43. M. & G. 460. EFFECT OF DOCUMENTS. G 1 3 misled. Tf the testator's death were recent, other considera- tions mioht arise affecting the purcliaser witli tlio iinjiutation of fraudulent blindness. It was added, that, if under such circumstances notice of the contents of the will Avould arise, it would by no means follow that it would be so in the case of a marriage settlement. A will imports a disposition of pro- perty, but there is no presumption that a man settles his landed estate on his marriage. It is submitted that it could rarely happen that a mortgagee Avith notice of a will would be justified in taking from an heir at law without inquiry {e). The fact of the heir's being in possession, even for a long period, would probably make little difference. He might be there as tenant for life, or under a lease from the devisee. And it is conceived that an inquiry of, and misrepresentation by, the heir himself, would not save the purchaser if he could have got information elsewhere : for a person who is bound to inquire must use the best means of knowledge which are practically within his reach, and of Avhich a prudent man might be expected to avail himself (/). If he have inquired honestly and with sufficient diligence he may, it is true, be relieved where be has been misled, by false infoiTTiation (^) ; but it is conceived, that to ask those only, against whose possible fraud the inquiries are intended to be the safeguard, is in general not sufficient diligence. A person who deals with a mortgagor in a matter which may be affected Isy the mortgage of which he has notice, will not be excused because he Avas misled by the mortgagor, if it were in his power to learn the truth from the mortgagee (h). On this principle a puisne mortgagee, who was infonned by the mortgagor that he had previously given a judgment or warrant of attorney, as a security, to a certain creditor, was held (J) to have notice that that security Avas in truth a mort- (<>) And see Burgoj-ne v. ITatton, Bc:iv. 47. Barn. Ch. L'.SC. {h) See Ladbrooke r. Lcc, 4 De G. (/) See Broadbent f. Barlow, 7 Jur., & S. 100. N. S. 478. (/) Taylor i-. Baker, Dan. 71 ; see (_7) Jones v. Smith, 1 Hare, 4:3; lleathurne r. Darling, 1 Moore, P. C. 5. 1 riiil. 244; Jones i'. Williams, 24 614 NOTICE BY CONTENTS AND gage ; for tlie means of better information were within his reach. 1128. A person who takes under a deed containing notice of an entail prior to the estate which he claims must look {k) that the entail be spent. It is not enough to deny knowledge of the existence of the heir in tail. 1129. The assignment of a term expressly to attend the inheritance is not notice to a mortgagee, any more than where the term is attendant by construction of equity, that there are limitations of the inheritance to be protected by it ; but merely that the term is attendant, and that there is an inheritance to be protected. But if the trust be declared to attend the inheritance, as limited by such a deed, or to protect the uses of such a settlement, that is notice of the deed or settlement (Z). 1130. Notice will also be the result where the matter depends upon the application of a clear equitable doctrine. Therefore notice of the reservation of an equity of redemp- tion is notice (m) of the mortgage title, if the court be of opinion that the equity still subsists. So, where a person having a limited interest in leaseholds, obtained by means of it favourable renewals {n), — it being clear that such renewals would be for the benefit of those in remainder (o). And he who deals with an agent, who bought from his principal, having knowledge of the fact (p) ; or who purchases a fund, settled in consideration of a covenant which remains unper- formed (§-) ; or who takes a security given by a person who has recently attained majority, for the debt of a near relative, or person standing in loco parentis (r), is liable to all the equities to which such transactions are subject. (A) Kelsall V. Bennett, 1 Atk. 522. War. 31 ; Dunbar v. Tredennick, 2 (/) Per Lord Hardwicke, 1 T. R. Ba. & Be. 304. 769. (<7) Harvey v. Ashley, cited 1 Sch. (m) Hansard v. Hardy, 18 Ves. 455. & Le£. 328; and see Basevi t: Serra, (») Parker v. Brooke, 9 Ves. 583. 14 Ves. 313. (o) 4 Bac. Abr. 922 ; Eyre v. Dol- (?•) Maitland v. Backhouse, 10 Jur. phin, 2 Ba. & Be. 290; Bury d. Burj', 45; Archer v. Hudson, 7 Beav. 551; Sugd. V. & P., App. 1128. and 15 L. J. (Ch.) 211. (j!?) Molony v. Kcman, 2 Dru. & CONSTRUCTION OF DOCUMENTS. C 1 5 1131. But where the construction of a deed is so un- certain, and the equity so doubtful, that the decision of the court cannot be known, a purchaser for valuable consider- ation, denying actual notice (1169), Avill not be affected (.s). In a case in which a will had been made iu a foreign lan- guage, and the original was lost, the nicety of the distinction between the w-ords children (which was used in the trans- lation) and issue, went far to induce the court to hold, that the defendant, a purchaser for valuable consideration, and who had been long in possession, the plaintiff standing by, had no notice ; and though two decrees had been made for the plaintiff, the bill was dismissed (^). 1132. Where the doubt is caused by the fact, that the settlement, of which the purchaser had notice, was not framed according to prior articles, or the rules of equity, in regard to the form of such instruments, it appears (m) to be the better opinion, that in cases, at least of modern articles, a mortgagee will now be affected by notice of the equities which arise under them. It has been laid down by Lord St. Leonards {x), that if the construction be upon the whole plain, though difficult, and a long period have not elapsed, a purchaser with notice leading to the articles will be bound ; but not after a lapse of time, where there is anything so equivocal or ambiguous in them as to render it doubtful hoAv they ought to be carried out. At the end of such a period as half a century, he said, a purchaser would not be fixed Avith notice of such an equity. The reader will here observe, that actual notice of a postnuptial settlement, is constructive notice of the antenuptial articles upon which it is founded (y). It has also been held, that where, by the rules of equity, oue estate has become liable to the burden of incumbrances actually charged upon another, a purchaser, who has notice of the transactions which led to the operation of the rule, will («) Parker v. Brooke, 9 Ves. 583 ; (?<) Senhouse v. Earle, Anibl. 285 : see Cordwell v. Mackrill, Ambl. 515 ; Sugd. V. & P. 1061, 11th ed.; 781,ed. 14. Kcnney v. BrovraQ, 3 Ridg. P. C. Wl, (.;•) Thompson c. Simpson, 1 Dm. 612. -"t "War. 459. (0 Bovey V. Smith, 1 Vera. 144. (y) FciTars v. Cherry, 2 Vera. 383. 616 NOTICE BY CONTENTS AND be bound by the incumbrances (z). But the decision lias more than once (a) been disapproved of by Lord St. Leonards, on the ground, that a purchaser is not bound to know all the equities springing out of a particular deed. The doctrine of the cases just cited seems, in some measure, applicable to this point also. 1133. A witness, not being considered privy in practice to the contents of a deed, Avill not be affected Avith notice thereof, without proof that he knew the contents at the time(i), contrary to the earlier doctrine, that every Avitness, who can write or read, is presumed (c) to be acquainted with the substance of the instrument which he undertakes to sup- port by his evidence ; in which there is an obvious fallacy, for it is the execution, and not the contents, of the instrument which the witness undertakes to prove. 1 1 34. A person will be affected with notice of the con- tents of an instrument brought to his actual knowledge, though it be inartificially expressed, if the meaning be so plain, that an unprofessional person would not be misled (d), perhaps, even if it were less clearly expressed ; for, other- wise, a man might avoid notice of the contents of a technically plain document, in his actual possession, by neglecting to employ a professional adviser. 1135. There will be full notice of an incumbrance as against a person who takes subject to it, although, in the recital of it, it be inaccurately, or not completely, described ; as if the limitations of a will be inaccurately stated, or a settlement be incorrectly referred to as a power of join- turing (e) ; and the more clearly, if the incumbrance be stated as indefinite in amount (y*) ; for then the puisne mort- (z) Hamilton v. Royse, 2 Sch. & Lef. per Lord Eldon, Rancliffe v. Parl<3-ns, 315. (> Dow. 224. («) Averall v. Wade, LI. & Goo., (c) Mocatta -y. Murgatroyd, 1 P. W. temp. Sugd. 252; V. & P. 1057, ed. 1 1. 392. (b) Beckett v. Cordley, 1 Bro. C. C. (d) Davies v. Davies, 4 Beav. 54. 357 ; Welford v. Beezely, 1 Ves. G ; (c) Hope v. Liddell, 21 Beav. 183 ; Colman ?J. Sarrel, 1 Ves. jun. 5.5; liar- Bury v. Bury, Sugd. V. & P. 1127, ding V. Cretlioni, 1 Esp. N. P. 56; ed. 11. Beed v. Williams, 5 Taunt. 257 ; Bid- (/) Gibson r. Ingo, 6 Hare, 112. dnlph V. St. John, 2 Sch. & Lef. 532; INSPECTION OF DOCT'MENTS. Cj 1 7 gagee cannot have been misled tt» liis liiirl -. Imt it is not so of an inijierfect or erroneous notice given by one person to another of" a transaction in which the latter is interested. Hence a notice merely stating an assignment by a certain deed of a reversionary interest is not notice of a covenant in the deed, that insurance premiums, paid by the grantee, should be charged upon the reversion (^). But the matter, of which there is actual notice, must be so connected with that of which notice is to be implied, that an inquiry into the one would naturally lead to knowledge of the other. There will be no notice of matters merely col- lateral to the subject of inquiry. Therefore, a person affected by recitals in the later deeds, will not, on that account, have notice (/<), that the original purchase-money remains unpaid ; for unless the fact be somewhere recited, or alluded to, an incjuiry into the title would not lead to it (1145). Nor, for the same reason, will a purchaser from assignees or trustees have notice (i) of negligence or other matters amounting to a breach of trust, connected with the manner of selling. 1136. He, to whom an instrument is brought for the ex- press purpose of examination in the transaction {k), or for Avhose inspection it is left open for examination in the trans- action (/), or who is known to have inspected it (?«), has actual or constructive notice of its contents, though the nature of the contents may have been misrepresented. A shareholder in a public company is not, however, bound to have know- ledge of the contents of the company's books, nor is he bound by acquiescence in entries in books which are merely pro- (g) Re Bright' s Trusts, 20 Jur. 301 ; money remained partly unpaid ; and and see Jones r. Smith, 1 Ph. 244, this solicitor was also a trustee of the 253. settlement made by the jnirchaser. (//) Cator r. Pembroke, 1 Bro. C. (/) Borell v. Daun, 2 Hare, 440. C. 301; and on thi.s jjoint it is said (/•) Cosser v. CoUinge, 3 Myl. & K. the case of Davies v. Thomas, 2 Y. & 283. C. 234, cannot be supiwrted ; see Sii(,'d. (7) Crofton v. Ormsby, 2 Seh. & Lef. V. & P. 87'.>, ed. 11. But note, that .-83. in that ca.se, the solicitor of the vendor (in) Paterson t». Long, 6 Beav. .'jQO. and jmrchaser had notice that the 31. VOL. II. S S 618 XEGLECT TO OBTAIN duced at public meetings, and Avhich ho miglit then look at. But directors of the company are affected by notice of whatever it was necessary that they should know of the com- pany's affairs and regulations for the due performance of their duties («) (1116). A person who by himself, or his agents, has searched for judgments (o), has notice of any that may have been regis- tered, though it only appear in evidence that searches were made (1157). But the notice will not affect the purchaser, if he after- wards purchase other lands, under a title independent of the instrument of Avhich he had notice, though that instrument may have actually related to tliem ; he being neither pre- sumed to take notice of, nor bound to remember, more than is necessary to make out his title {p). 1137. Upon principles similar to those which have been already stated, rests the doctrine of constructive notice by the possession of title deeds. A man who deals for an in- terest in an estate, without obtaining the title deeds, is not necessarily affected with notice of the interest of any one with whom they may have been deposited. It is his business to inquire for them, and if he find that they are not in the possession of the ostensible owner of the estate, he should take reasonable care to satisfy himself as to their position. But it is not the mere fact that the deeds are not forthcoming, nor his want of success in arriving at the truth where he is misled, or want of prudence in carrying his inquiries far enough, so that he be not grossly negligent, or do not wil- fully shut his eyes to the truth, that will fix him with notice (</) (1531). Such negligence or Avilful blindness will be attributed to (») York and North Midhmd Rail- Lef. .^I.j; and see 2 Hare, 249. way Company v. Hudson, IG Beav. (q) Plumbe i;. Fluitt, 2 Anst. 432; 500 ; Re Newcastle-upon-Tyne Marine Evans v. Bicknell, 6 Ves. 173 ; Jones Insurance Company, 19 Beav. 97. r. Smith, 1 Hare, 43; 1 Ph. 244 ; Finch (o) Procter v. Cooper, IS Jur. 444; r. Shaw, 18 Jur. 935; 19 Beav. 500 ; 2 Drew. 1 ; 1 Jur., N. S. 149. 5 II. L. C. 905. (p) Hamilton v. Royse, 2 Sch. & Oli INQLIUE FOU DEEDS. G19 a man who makes no investigation (/•) of" the title to siii es- tate, or who knowing (a") that the deeds are in deposit, or that the person with whom he deals is indebted, and has given security to another, and that the title deeds are not forthcoming (^), abstains from seeking information as to the actual position of the deeds : yet more, if he knows from the situation of the parties, and the custom of their trade, that it is likely that a specific security has been given. So, a mortgagee, who contents himself by examining the court rolls, where he would only find notice of legal incumbrances, shall not be excused (?/) for neglecting to inquire for the copies of court roll. 1138. A person who takes an equitable mortgage on copyholds from an heir at law ought not to be satisfied by the deposit of a copy of his admission only, but should inquire for the admission of his ancestor also (a:) ; and will otherwise be fixed with notice of a deposit of that admission. 1139. It seems that a person may under peculiar circum- stances be Avithout constructive notice of particular docu- ments, which are actually in the custody of himself or his agent ; as where they were passed over amongst many title deeds, or were in a box, thought to contain only immaterial writings. But it must of course be sworn positively that there was no notice or apprehension of their presence by the person holding them or his agent {y). 1 1 40. There is nothing in the possession, by a solicitor, of his client's title deeds, Avhich makes inquiry necessary (z) on the part of any one dealing for an interest in the estate ; such a possession being in the ordinary course of business, is on the contrary so little regarded as evidence of any in- terest beyond that conferred by the character of solicitor, that a solicitor ought to give notice of any further interest, (;•) AVorthington v. Morgan, 16 Sim. (.r ) Tvlee v. Webb, 6 Beav. 552. 5^7. (y) Earl of Portsmouth v. Ixini (.?) Birch r. Ellames. 2 Anst. 427; Effin-hain, 1 Ves. 435; and Jacobson's Hiem ('. Mill, 13 Ves. 114. ca.se, cited there. (0 Whitbrcad c. Jordan, 1 Y. & C. (r) Bozon r. Williams, 3 Y. & J. 303. l.-;0. («) Id. s s 2 620 NOTICE OF INTEREST OF Avliicli lie may acquire by contract, to the persons in the visible ownership of the property. 1141, Underwriters have notice of the insurance brokers' lien for commission on the policy (a). Of Constructive Notice htj Tenancy. 1 1 42. Xotice also arises from the fact, that a person other than the apparent owner is in actual occupation or receipt of the rents of the estate, viz. notice to the purchaser (Z»), as between him and the occupier, of whatever interest the latter may have acquired in the property ; and extending to the actual interest which the occu})ier may have as tenant or otherwise ; whether that interest be founded upon the con- tract under Avhich he is in possession, or upon an independent and subsequent contract (c). And as the principle of the doctrine is(c?), that the jourchaser is not justified in assuming the possession of the occupier to be that of the apparent owner, but is bound to inquire into the nature of his interest, the notice equally arises, Avhether the property be described to the purchaser as occupied by the person alone who claims the interest in question, or by him and his undertenants (e). If, however, the person in possession be not the original lessee, and have no knowledge of the matter contained in the original lease, the purchaser is not bound (y) to go further, or to pursue his inquiries through every derivative lessee, until he arrives at the holder of the original lease. Neither does the obligation to inquire extend ( (j) to the interest of the last occupier, where the possession is vacant. Therefore, where property was described as " late in the occupation of (a) Gibson v. Overbury, 7 Mecs. (rZ) Bailey v. Richardson, 9 Hare, & W. h:,l. 734 ; and see Crofton v. Ormshy, 2 (/y) Taylor v. Stil.l.ert, 2 Vcs. jiin. Seh. & Lef. 597. 437; Daniels V. Davison, 16 Ves. 249; (e) Bailey v. Richardson, 9 Hare, 17 id. 433; Powell v. Dillon, 2 Ba. & 734. Be. 416; Bamhart ij. Grccnshicld.s, 9 (/) Ilanbiiry v. Lichfield, 2 M. & iloo. P. C. 32; Ivnight v. Bowyer, 23 K. 633. Beav. 609, 2 De G. & J. 421, 4 Jur., ((j) Miles v. Langley, 1 R. & M. 39; N. S. 569. 2 id. 626. (c) Allen r. Anthony, 1 xMcr. 282. OCCUPIER OF ESTATE. G21 A.," the [)urciuiser wiis held iiol to luivc notice, tlial anollicr person claimin<r tlirou_i!;h A. had acquired an iiitere?>l in the land. And the purchaser will have no notice (h) of any interest in the tenant, the existence of which he by his own act has negatived. It was so held, as to the tenant's lien as vendor for part of the purchase-money, the receipt of which he had acknowledged both in the body of the purchase deed, and by an indorsement thereon. 1143. It has been held that Avherc the agreement, under which the occupier claims a further interest, is not con- nected with, or so capable of protecting the tenancy, that on the strength of the agreement the occupier might resist or be relieved against an e^ctment, or rightfully refuse to give n\) possession of the estate, the purchaser will not be affected Avith notice. So that Avhere the occupier claimed the benefit of an allefred agreement to vest in him and his wife the fee simple of certain estates, but which was not to take effect until the death of the then ow^ner, it was deter- mined (i) on the principle above stated, that the occupation was no notice of the interest claimed under the agreement. There was in fact no present interest. The learned judge by whom this case was decided, appears rather to have aimed at an escape from the case of Daniels v. Davison {k), of which it has been more than once said, that it carries this branch of the doctrine of notice to its fullest extent. It may, how- ever, be difficult to reconcile the decision with the principle upon which that doctrine is said to be founded, viz. (/) that the purchaser may not assume the possession of the tenant to be that of the person wdio claims to be owner. The principle of the decision in Penny v. Watts makes the question de- j)endent, not upon what inquiry the purchaser is bound to make, or upon what he may properly assume, but upon the nature of (/() Wliitc V. Wakcticlfl, 7 Sim. 401. not proper to be discussed ; sec 1 Mac. (i) Penny v. Watts, 2 Dc G. & S. & Gor. 150; 1 H. & Tw. 26(5. 501. This case was not aftirmcd on (/.) 16Vcs. 240; 17 id. 4.?3. aiipcal ; but the doctrine aI)ove stated {I) Sec Bailey r. Kicbai-dson, "J lliU'c, remains untouched liy the judgment of 734. the Lord Chancellor, who thought it G22 NOTICE OF tenant's interest. the interest which tlie tenant may chance to possess beyond his mere tenancy — a matter which must be altogether un- known to the purchaser, and upon which it is the very object of the inquiry to throw light. If the obligation to inquire is to be thus determined, how can a purchaser know when he is to inquire? The moment he gets the necessary know- ledge, the inquiry becomes useless. 1144. In a casc(w) in which prior mortgagees of copy- holds, with a covenant to surrender, sought relief against ejectment by a subsequent mortgagee, under an actual sur- render, their bill was dismissed, and it was said, that the subsequent mortgagee had no notice of the former covenant. At the date of the later mortgage the mortgagor had been out of possession for thirteen years. The report states also, that the prior mortgagees were in possession, and it does not appear that the question of notice was argued. Now it is clear that if, under the doctrine which we have been con- sidering, an application had been made to the persons in possession, there would have been an immediate disclosure of the prior security. And it is said to have been held in a modern case(w), that a purchaser for valuable consideration without actual notice, who dealt with a person out of possession, and did not use all the means which a person of due diligence might be expected to use in order to ascertain the state of the title, was to be considered as a purchaser with implied notice. The report of the case of Oxwick or Oxwith v. Plumer in Vernon (o) is very short, but as far as it goes, it tends still more to weaken the conclusion draAvn from the report in Bacon. The Lord Chancellor, after stating that there was no specific 'agreement for the copyhold, which would alone be a reason for dismissal, is made to say, possession of the under tenant not sitfficicnt to (iffect him {the subse- quent mortr/agee) tcith notice; a doctrine which in ordinary {m) Oxwick v. Plumer, Bac. Abr. (o) 1 Vera. 63G. Sec remarks on Mortgage, E., s. 3. this case in Barnhart v. Greenshiclds, (») Popple r. Prideaux, cited ary. 'J Moo. P. C. 18. 3 Mvl. & K. 707. OF l)liAl.l^(;s WITH i:xi:clt()K?». <i2;i circumstances seems contriiiy to the modern cases as above stated. 1145, A subsequent purchaser will not be affected with notice of non-payment of tlic purchase-money by the ori- ginal vendor, Avhere the title is deduced by recital from him, because the recital does not shew the non-payment (/;). And if the vendor acknowledge the receipt of the whole j)urchase-money, both in the deed and by an indorsement thereon, no inquiry is necessary whether the payment was in fact made (q). Prol)ably such an indorsement alone would have the like effect, but not an acknowledgment in the deed Avithout the indorsement. Of Constructive Notice in Dealings ivitk Executors, Admi- nistrators and Trustees. 1146. Although the taking a mortgage from an executor, with knowledge that he fills that character, necessarily im- plies notice of a will, such a mortgagee is not generally bound to inquire whether the executor is justified in pledging the assets (431), nor affected with notice of an improper application of the mortgage money — provided there be no contrivance between the mortgagee and the executor, to the injury of the estate, or the persons entitled nnder the will ; and that the transaction be not obviously one in which the executor is acting in breach of his duty, or which amounts to a devastavit (r). A person so dealing with an executor does not generally become affected by a breach of trust, by taking a mortgage of the assets, whether specifically bequeathed or otherwise ; because prima facie the dealing is consistent witli the duty of an executor : but not to speak of cases of ])al- pable fraud, such as discounting the executor's private debt (y;) Cator I', rcnihrokc, 1 Bro. C. C. 235; M'Lcod r. Drunimond, 17 Vcs. 801; and see (V. & P. 879, ed. 11; 152; Bonney i'. Eidgard, 1 Cox, 145; IjOtA St. Leonards' obsen-ations on Elliott v. Mcmman, 3 Bam. 78 ; Scott Da^-ies v. Thomas, 1 Y. & C. 234 ; hut v. Tvler, 2 Dick. 712; KcaTic r. Robarts, obsen-e that there seems to have been 4 Mad. 332; and .see Dowiies r. I'ower, other notice in that case. 2 Ba. & Be. 498 ; Shai-shaw v. Gibbs, (y) White r. Wakefield, 7 Sim. 4ni. Kay, 333—336. (r) ^lead v. Lord Orrery, 3 Atk. 624 NOTICE OF INTERESTS OF out of the consideration money, Avitli notice that a debt of the testator remained unpaid (5), the advancement of money to the executor for his private purposes, or in his character of a trader, or in any other manner contrary to the duty or objects of his office, Avill generally affect the person by whom the money is lent {t). And if it appear that the security was made for a debt already due from the executor, and not for a present advance (m), the case will be stronger against the mortgagee, because the transaction is prima facie inconsistent with the duty of an executor. If the executor, upon borroAving the money, represent that part of it is required for executorship purposes, the 07ius of showing how much was required for those purposes is on the borrower; and the court will direct an inquiry as to the amount so applied {x). 1147. Yet the pledge for the private debt of an executor may be supported, if the executor be himself beneficially interested in the whole or part of the property, and effect the security in terms which indicate an intention to charge his beneficial interest, and not to mortgage in the represen- tative character (?/). And so it was held, where no express intention to assign the beneficial interest appeared (z). And, in another case (a), where the assignment was made by three executors, and recited that the money due on the security which was assigned was the proper money of one of the exe- cutors for whose benefit the assignment was made. But the authority of the last two cases, both of which depended much on special circumstances, has been questioned by later autho- rities (b). Where there is a specific legacy of a debt, it seems the (s) Crane tJ. Drake, 2Vem. 616. {t) Scott V. Tyler, 2 Dick. 712; M'JvCod V. Drumniond, 17 Ves. I.'j2. («.) M'Leod V. Drummond, 14 Ves. 353; Kcane v. Hol)arts, 4 Mad. 332; Watkins v. Check, 2 Sim. & St. VJ'J. (x) Carter v. Sanders, 2 Drew. 248. (y) Haynes w. Forshaw, 17 Jiir. !).';i. (--) Nugent V. Gifford, 1 Atk. 4(;3. {a) Mead v. Lord Orrery, 3 Atk. 235. {b) 1 Cox, 148; 17 Ves. 164. If the executor be indebted to the estate, the mortgagee will be postponed to the claim of the estate, and is compellable to deliver the deeds to the co-executors. (Cole V. Muddle, 10 Plare, 186.) EXECUTOIIS AND THrSTKES. 02.5 executox' may settle the account witlj the debtor without the concurrence of the specific lef^atee ; although Lord Ilaid- wicke was at first inclined to think that the debtor is affected with notice Avhere the legacy is specific (f). 1148. If the executor be a specific legatee, and there are no debts outstanding, he may mortgage the legacy to secure his private debt; and an inquiry as to the payment of the testator's debts will not be granted as of course, or unless some ground for it be apparent on the pleadings {d). 1149. If the mortgagee do not proceed upon the legal authority incident to the character of executor, but upon the faith of his representation, that he is entitled to the property oftered as security, he becomes bound (e) to inquire into the truth of the representation, and cannot avail himself of the protection given to persons who deal with executors in their representative character. 1 1 60. A purchaser from an executor need not, it is said, have any recital of the purpose for Avliich the money is raised (y*); and is equally protected whether lie lia\c an actual assignment or a deposit only (^). And the court will not give relief (A), after a long acquiescence in the transac- tion by persons having a sufficient interest to impeach it, on the ground that the circumstances made it proper that the purchaser should have inquired into the necessity for raising the money. The owner of a contingent interest is entitled to inquire into the payment of the testator's debts, and the aj)plication of the assets to them. 1161. Where, the will directing certain property of the testator to be sold, the executors sell to the surviving part- ners, leaving part of the purchase-money on security, the ])artners who purchase are protected by the character under which the executors sell, and may plead that they are pur- chasers for valuable consideration without notice of the trusts (<•) Langlcy c. Earl of Oxford, Ambl. (//) Scott r. Tyler, 2 Dick. 712; 17. Carter v. Sanders, 2 Drew. 248. (r/) Taylm- /•. Hawkins, 8 Ves. 209. (/() Aiiikcw v. Wrigley, \ Bro. C. (r) Hill V. Siiniison, 7 Ves. 152. t" I2J. (/) Bonuoy v. Ridgard, 1 Co.x, 145. 026 NOTICE BY STATUTE, COURT of the will(/) ; but the protection does not extend to the sur- viving partners in a trading concern, in which the testator's trustees, by his direction, leave a part of his assets. In such a case the surviving partners, dealing Avith the testator's pro- perty, with knowledge that it forms part of his estate, are bound to inquire into the trusts upon which it is held, and are fixed with notice of them accordingly (/c), 1 1 52. The same general principles, which govern the dealings of a mortgagee with an executor, apply where the administrator mortgages the estate of his intestate (Z), and also to cases in Avhich executors or trustees have general power (m) to charge the real estate of their testators ; but it is otherwise where the money was to be raised for payment of a particular debt (71). Of Constructive Notice by Records. 1. Acts of Parliament. 1 1 63. Acts of parliament of a private nature are not, as ]»ublic acts are, notice to bind all the world, even when they are expressly declared to be public acts (o). 2. Court Rolls. 1154. It appears to be now settled, that a purchaser of copyholds is not bound to search the rolls of the manor of which they are held, and the rolls are, in consequence, not of themselves notice of their contents (7?); though it was for- merly held otherwise {q). (j) Chambers v. Ilowell, 11 Bcav. («) Elliott v. Merriman, Barn. Ch. 6; but see Hardingham v. Nicholls, 81 ; WalkertJ.Flamstead, 2Ken.,part2, 3 Atk. 304, as to leaving part of the 57. pnrrhasc-mfmey on security. (o) Hesse v. Stevenson, 3 Bos. & {]{) Travis v. Milne, !) Hare, 141. Pul. 578; per Lord Hardwicke, 2 Ves. (Z) Russell V. Plaice, 18 Bcav. 21 ; 480. 18 Jur. 2r,4. ip) Bngden v. Bignold, 2 Y. & C. {m) Haynes v. Forshaw, 17 Jur. C. C. 377. 0,30 ; Watkins v. Check, 2 Sim. & St. {q) Pcarce v. Newlyn, 3 Mad. 186. 1U9. KOLLS AM) IIEGISTKATIO.N. 027 But it seems tlial persons who deal with copyhold teniuits ought to inform themselves as to the existence of any customs of the manor which may afl'ect their interests ; so that a sul)- sequent incum])rancer of coi)y holds who had searched tin- rolls was nevertheless bound by a i)iioi- incumbrance not entered thereon (r) ; there being by the custom of the manor no time limited for presenting surrenders made out of court. And it has been held, that persons who contract for a lease, ought to ascertain the custom of the manor as to the length of leases (s). AVe have seen that even searching the roll will not protect a ])urchaser Avho neglects to inquire Ibr the copies of court roll(0 (1137). 3. Rerjistration of Deeds, §^c.. Lis pendens, Jadrjments and Decrees. 1155. It is said to have been the original object of regis- tration acts (68), that the register should be notice to every body (m), and that the order of registration should be the order of priority (x) ; but, with the exception hereafter to be noticed as to priority, a different construction has been put upon them. The register, it is well settled, is not notice to puisne incumbrancers (//) of earlier registered charges; and much less is it notice to the mortgagor of an assignment of the mortgage (xt). The reason (a) why it is not considered notice is, that if it were so, it would be also constructive notice of everything contained in the memorial, and, there- fore, of every instrument or fact recited in it ; after which the incumbrancer would be bound to inquire. It would also be notice (if such were the fact), that the deed was unduly registered ; in which case it would have no preference, and so (7-) Ilorlock r. Priestly, 2 Sim. 75. (//) Cator v. Cooler, 1 Cox, 182 ; (.«) Hanbury v. Lichtielcl, 2 My. & Bushell r. Bnshell, 1 Sell. & Lcf. 00 ; K. G20. Wiseman r. Westlaml, 1 Y. & J. 117. (C) Whitl)rca(I c. Jordan, 1 Y. & C. (r) Williams r. Sorrell, 4 Ves. .'JS;). 303. («) Buslull V. Bnshell, supra; La- (w) nine r. Dodd, 2 Atk. 275. touchc r. Lord Dunsany, I Sch. ^S; Lcf. (a-) Ford V. White, IG Bcav. 120. 157. 628 NOTICE BY REGISTRATION. the provisions of the act for complying with its requisitions would be avoided. The reirister is also not of itself notice in Ireland (J), although, from the peculiar Avording of the Irish Act, the effects of registration, as we shall see in considering its bear- ing upon priorities (1274), is very different. An incum- brancer who has notice of a registered deed is bound by matters contained in the deed, though not noticed in the memorial {c). 1156. The intention of the registry acts was to protect persons without notice, and not to shelter those whose con- sciences are already affected by notice aliunde (d). A person, therefore, who takes with notice of a prior unregistered deed, can gain no preference over it, by registering his own. 1157. Against a person who is admitted generally, or proved to have searched the register, either for a deed {e) or a judgment (/), notice will be presumed of so much of its contents as affects his interests ; yet, as he is not bound (^) to search, and if he have omitted to do so (unless wilfully to avoid notice), may plead that he is a purchaser for valuable consideration without notice {h) (1169), he will not be affected by constructive notice of a registered instrument, if ■ it be shown that his search did not extend to that part of the register in which it w^as contained (i). 1158. The effect of a lis pendens (178) upon the title of a purchaser is analogous to that produced by notice of a title or equity inconsistent with the title of the person from whom he purchases. But the doctrine of lis pendens is common (?j) Bushcll V. Bushcll, 1 Sch. & Lef. (e) Hodgson v. Dean, 2 Sim. & St. 103 ; Underwood I?. Lord Courtown, 222 ; Ford ??. White, Ifi Beav. 120. 2 Sch. & Lef. 41 ; Pentland v. Stokes, (/) Procter v. Cooper, 2 Drew. 1 ; 2 Ba. & Be. 75. and 18 Jur. 444; 1 Jur., N. S. 149. (e) Il/K-hard v. Fulton, 1 .7. & L. 41.3; (ff) Wrightson r. niidson, 2 Eq. Ca- 7 Ir. Eq. R. 131. Abr. CO'J ; Bushcll v. Bushcll, 1 Sch. (d) I^ Neve v. Lc Neve, 3 Atk. & Lef. 90; Lane v. Jackson, 20 Beav. 646 ; Bushcll v. Bushcll, 1 Sch. & Lef. 535. 90; Ford v. White, 10 Beav. 120; Lee (h) Lane v. Jackson, supra. V. Green, 2 Jur., N. S. 170. (0 Hodgson v. Dean, supra. EFFECT OF LIS PENDENS. 029 both to courts of law and equity (y), and depends not uj)(>ii the principles of constructive notice, but upon the considera- tion already mentioned, that no action or suit could be suc- cessfully terminated if alienations pendente lite were allowed to prevail. But while pending the suit the defendant is thus prevented from aflectiug by alienation the rights of the plaintiH', and the plaintiff from alienating to the injury of the defendant, where the latter may in the result have a right against him, the rule will not ap])ly to the right of a person who, pendente lite and without notice, acquires from a defendant an interest in the litigated property Avhicli is affected by the equitable claim of a co-defendant, although the interest appear on the face of the proceedings; provided it be not in question in the suit or a subject of adjudication between the co-defendants; there being generally no decree, and consequently no lis pendens, between such parties (/i). Where such an adjudica- tion Avas made(/) in an administration suit, to which two devisees of separate estates were defendants, by a decree for the sale of one of the estates, Avithout prejudice to the right of the devisee of it to contribution against the other, a mort- gagee of the latter estate was held to be affected by the lis l)endens. 1159. The law as to the notice created by judgments of the superior courts, decrees in equity, rules of courts of common law, and orders in bankruptcy and lunacy, have not been altogether put upon the same footing Avith lis pendens ; for, Avhilst the operation of the latter has been limited, so that whereas it was formerly binding (m) of itself, except in cases of collusion (?<), it noAv binds no purchaser or mortgagee Avithout express notice of it, unless it be duly registered («) ; (./) So, however, is constructive or Smahvood, Ainlil. G7G; Self r. Madox. implied notice. (Co. Litt. 309 ij ; 1 Vcrn. 459 ; Moore r. M'Nanuira, Tooker's case, Dyer, 302.) 2 Ba. & Be. 18G ; Fleinming i. Page, (k) Bellamy r. Sahine, 1 De G. & J. Finch, 320. SCO; 3 Jiir., N. S. <t-t3. («) Culpeper r. Aston, 2 Cli. C:i. (/) Tyler r. Thomas, 2.5 Beav. 47. 1 lo. (m) Tothill, 4.->; Worsley v. Earl of (,-) 2 & ;! Viit. c. 11, s. 7. Siarborough, 3 Atk. 392 ; Walker v. 630 EFFECT OF LIS PENDENS. decrees (j^) and judgments (y), which (although docketed(r) ), were (s) not formerly notice of themselves, but though not docketed, alFected a purchaser having express no- tice, now require registration to make them efiectual (t), even Avhere there is express notice (?/) of them aliunde; but are still not made notice by force of the register, and are in fact not notice unless it be shown that the register was searched {x). Lis pendens, then, is still of itself binding, if duly regis- tered ; and, whether registered or not, a purchaser is affected by express notice of it. But judgments and decrees are not notice of themselves, although registered; yet, unless they be registered, a purchaser is not affected even by express notice of them. 1160. It is laid down (y), that where a man is to be affected by lis j^endens, there ought to be a close and con- tinued prosecution of the suit ; or, as has been said, something should be done to keep it alive, and in activity {z). And as a registered lis pendens could not be vacated without the con- sent of the person by whom it was registered, which consent was sometimes withheld, it has been enacted that the Court before which the property sought to be bound is in litigation, may, upon the determination, or during the pendency of the litigation, when it shall be satisfied that the litigation is not prosecuted bund fide, order the registration to be vacated {p) Tothill, 45 ; Worslcy v. Earl of Scarljorough, supra ; Rivers v. Steele, Mr. Cox's MS., 1 Vem. 286, Line. Inn Lib. ; notwithstanding Sorrell v. Caqjcnter, 2 P. W. 482; Searle v. Lane, 2 Vem. 37 and 88 ; and other early cases; and see Sugd. V. & P. 1047, ed. 11 ; see also Giffard's ease, Freem. Ch. App. 310, ed. 2 ; and us to express notice, Harvey v. Mountague, 1 Vem. 57 and 122. {ff) Churchill v. Grove, Nels. 81); Snelling v. Squib, 2 Ch. Ca. 47 ; Gres- wold V. Marsham, iil. 171. (r) 2 Eq. Ca. Abr. 082, D. d. {s) Davis i>. Strathmore, 10 Ves. 419. (?;) 1 & 2 Vict. c. 110, s, 19; 2 & 3 Vict. c. 11, s. 4. (?0 3 & 4 Vict. c. 82, s. 2 ; 18 & 19 Vict. c. 15, s. 4. (.») Procter v. Cooper, 2 Drew. 1 ; 18 Jur. 444 ; 2 Jur., N. S. 149 ; 2 & 3 Vict. c. ll,s. 5. (y) Bishop of Winchester v. Paine, 11 Ves, 200 ; Beames, Ord. 7; Preston V. Tubbin, 1 Vem. 280. {z) Kinsman v. Kinsman, 1 liuss. & Myl. 022. EFFECT OF LIS PENDENS. 0:51 without the consent of" the party who registered it, and may in the discretion of the Court direct the party on whose behalf the registration Avas made, to pay all the costs and expenses occasioned by the registration or the vacating thereof («). 1161. Tlie efi'cct of lis pendens extends to any interest directly in <|uestion in the suit. It therefore binds the assignee of an equity of redemption, assigned during the suit; and the purchaser from an heir at law, pending a suit to establish the will of an ancestor, as well as the assignee of the alleged devisees {h). And the assignee is as much affected where the contract Avas entered into before the com- mencement of the suit, as where it was both entered into and completed after that period (c). But it merely binds as to the claim which is the subject of the suit, and does not of itself create an incumbrance where the claim being invalid could create none {d). Nor will it, either in the case of real or personal estate, stop trustees or executors from carrying out their trusts (e). A general bill, therefore, for an account of personal, or of real and personal estate, both consisting of various i)arts, where there is no dispute about the title, will not affect the title of a ])urchaser from a devisee. But in the case of a bill, charging a parti- cular estate with a particular trust, it is otherwise (/). And where the life estate of an executor, in lands subject to a judgment, was liable in equity to recoup assets of the tes- tator, which by the executor's default had become ap])licable to discharge the judgment, it was held ( //), that a suit by the judgment creditor for an account of the testator's real and personal estate and payment of his debts, did affect a mort- gagee of the executor pendente lite; the security not being a step taken in execution of the trust. (rt) 30 & 31 Vict. c. 47, s. 2. (e) Walker i\ Flanistcail, L' Ken., (b) Garth r. Wnr.l, 2 Atk. 174. part 2, 57. (<•) NoiTis r. Lord Diulley Stnart, (/) Id. ](.) Beav. '.io'J. (y) Jennings *'. Bond, 2 Jo. iS: Lat. (d) Bnll V. Ilutchens, 32 Beav. G15 ; 720. See Drew i\ Earl of Norbury, 9 Jur., N. S. 1».".4. 3 M. 2r,7. 632 EFFECT OF LIS PENDENS. 1162. Lis pendens does not apply to any fact, or equity arising out of a fact, Avhich is not asserted in or does not appear by the suit. So that a suit(/<) to carry out the trusts of a deed by which a legacy passed by general assign- ment, but wherein no specific claim is made to the legacy, is not notice of the assignment. So, Avhere the matter, though connected with, is merely collateral to the question in the cause. Therefore, if the cause relate to a right to money, which is secured upon an estate, but not to the estate itself, a purchaser of the estate pending that suit is not affected (z). 1163. It was stated above that a decree Avas no notice of itself; but this applies only to decrees which put an end to the litis contestatio. A decree which is not final, as a decree to account which puts no end to the matters in question, binds (A), as lis pendens. And it was held, that where, after a decree to account, a report had been made and confirmed, all the equities adjusted, and every thing obtained under the decree, which had been contemplated in the suit, and upwards of a C[uarter of a century had elapsed since the decree, though no general decree had been made on further directions, a purchaser was not (Z) affected by a continuing lis -pendens, — the litis contestatio necessary to constitute litis pendentia being substantially at an end. The opinion of Lord Redesdale (m), that a transaction done after the dismissal of a bill, is still pendente lite, because it may still be a question on appeal to the lords whether the bill was rightly dismissed, and that the parties, therefore, take subject to all the legal and equitable consequences of the transaction, is dissented from, by Lord St. Leonards (n), (k) Iloulilitch V. Wallace, 5 CI. & (/) Worsley v. Earl of Scarborough, Fin. 629 ; Holt v. Dewell, 4 Hare, 446. 3 Atk. 392. Ami in general a bill which cannot be (k) Id. ; Iliggins v. Shaw, 2 Dru. brought to a hearing, cannot properly & War. 356. create a lis pendens, so as to affect a (I) Kinsman r. lOnsman, 1 Russ. & purchaser claiming under one of the Myl. 617. parties after filing the bill. Per Lord (iib) Gore ?'. Stacpoole, 1 Dow, 31. Hardwicke, Barn. Ch. R. 454. («) V. & P. 1046,ed. 1 1 ; 758, ed. 14. EFFECT OF LIS PENDENS. G33 as too great an exteusiou oi" the Juctriue. It may be ob- served, with respect to ai)peals in the court below, either to a superior jurisdiction there or to the House of Lords, that an order for an appeal seems not to be a continuation of the lis pendens, because, as a c^eneral rule, the appeal puts no stop to the proceedings under the decree (o). The litis con- tvstatio is assumed to be at an end, until the decree is varied or reversed. And the same practice prevails in the House of Lords {j)), which seems to be a strong argument against the continuation of the lis pendens during the appeal. Of course, if the registration be allowed to drop during the period allowed for appeal, the question will not arise. 1164. A purchaser for valuable consideration will not be aifected by a suit by one claiming under a voluntary settle- ment by the same owner, praying an execution of the trusts of the settlement (y). Neither will lis pendens affect any particular person with a fraud (r), unless there were special notice of the title in dispute to that person. Nor will it postpone a registered conveyance {s) ; actual notice, clearly proved, being alone sufficient for that purpose. But this latter doctrine does not apply where the question is not between two deeds, one registered and the other not; but(?) on a claim by a purchaser pendente lite to be relieved against the effect of the suit. It is presumed that the effect of lis pendens has not been changed in these respects by the statute. 1165. Lis pendens formerly took effect w^hen the bill was filed by relation from the service of the subpoena (//)• It is considered that this rule will still hold when the suit has been registered under the statute. 1166. Against a bond Jide purchaser for full value and without actual notice, the effect of lis pendens has been ((>) Cons. Old. xxxi. 2. (/•) Per Lord Ilardwicke, 3 Atk. 243. (7>) House of Lords' Journals, 40, (*•) Per Sir William Grant, 19 Ves. p. 338 ; 47 Geo. 3 ; and see 10 Ves. 439. 213. (0 Jennings v. Bond, 2 Jo. & Lat. {q) Metcalfe i'. Pulvcrtoft, 1 V. & 720. B. 180. («) Anon., 1 Vern. 318. M. VOL. II. T T 634 ACT OF BANKRUPTCY. thought so hartl that no help was given to the plaintiff to cure defects in the proof of his title (.r). 1167. Neither an act of bankruptcy (y), nor a commission of bankruptcy (z), are of themselves notice. And whatever difficulty may have arisen, in consequence of later decisions, as to acts of bankruptcy, it is clear that subsequent legis- lation has gone on the footing of the early doctrine. After the passing of several acts (a), by which the protection, ori- ginally given by an act of James lst(Z») to persons dealing with bankrupts, was gradually extended, the provisions of those acts Avere replaced by those of the Bankruptcy Act, 1849; Avhich provides (c), that all payments made to any bankrupt, and all payments made by him, or on his behalf, to any creditor, as well as all conveyances by him, trans- actions with him, and executions and attachments executed and levied against his lands, or goods and chattels, by seizure, or seizure and sale, as the case may be, — all such matters being bond fide, and before the date of the fiat or filing of the petition for adjudication of bankruptcy, — shall be valid, notwithstanding a prior act of bankruptcy, provided that, at the time of the doing of such several matters, there was no notice in the person by whom, or on whose behalf, they were done, of such act of bankruptcy : and provided they were not done by way of fraudulent preference. The act then pro- vides {d), that no purchaser bona fide, and for valuable con- sideration, shall be impeached, by reason of the purchaser having had notice of an act of bankruptcy, unless the fiat or petition for adjudication shall have been sued out or filed within twelve months after the act of bankruptcy. {x) Sorrell v. Carpenter, 2 P. Wms. 219. 482. {it) I'J Geo. 2, c. 82 ; 4G Geo. 3, (y) Wilkes v. Bodington, 1 Veni. c. 185 ; 49 Geo. 3, c. 121 ; 6 Geo. 4, 599. C.16 ; 1 & 2 Will. 4, c. 56, s. IG ; 2 (z) Hitchcock c. Sedgwick, 2 Vern. Vict. c. 11, s. 12 ; 2 & 3 Vict. c. 29. 15C; as reversed by the House of Lords, (J) 21 Jac. 1, c. 19, s. 14. Sngd. V. & P. 1049, ed. 11 ; and see (c) 12 & 13 Vict. c. 106, s. 133. Sowerby v. Brooks, 4 Bam. & Aid. {d) Ibid. s. 134. 523. In re Barr's Trusts, 4 K. & J. PURCHASE WITHOUT NOTICE. 635 1 168. Bodies corporate and puMic companies are deemed (<) to have notice of an act of bankruptcy, by notice to their accredited ao;ents. Of tlie Plea of Purchase without Notice. 1169. It apjiears to be now well settled, after great differ- ence of opinion, that the plea of purchase for valuable consi- deration without notice bars botli a legal and an equitable title (/) ; the principle of the plea being simply that it is con- trary to equity to disturb the title of one, Avho has honestly and bond fide paid his money for tlie purchase of any estate or interest. It seems to have been hinted by Lord Cottenham (^), that there might be a difference between cases in which the person setting up the defence had only contracted for an equitable title, and those in which the grantor assumed that he Avas in possession of, and purported to convey, the legal title (A). Viwt the principle of the doctrine depends rather upon the bona fides of the mortgagee or other purchaser, and the payment of his money without notice, than upon the nature of the interest purchased (/). The benefit of the defence has been denied to a person who paid his money to the alleged agent of the apparent OANTier without his authority, the apparent owner (<-) 12 & 13 Vict. c. IOC, s. 87. N. S. 25, 5 IT. L. C. OO.j. (/) Burlace V. Cook, Freein. Ch. 24, (y) See Frazcr r. Jones, 17 L. J. plaintiff being heir-at-law y\\i\\ prima. (Ch.), N. S. 353. facie legal title (1G77) ; Jerrard r*. {h) See WalhvTO v. Lee, 9 Vcs. 24. Saunders, 2 Ves. jun. 454 (1794) ; (/) The principal authorities for the ■NVallwyn v. Lee, 9 Ves. 24 (1803) ; dmtrine that the plea bars only an Payne r. Compton, 2 Y. & C. 457 equitable claim, are Williams v. Lanibo, (1S37) ; Bowen i\ Evans, 1 Jo. & Lat. 3 Bro. C. C. 264 (1791); Rogers v. 178, 204 (1844); Joyce v. Dc Molcyns, Scale, Ereem. Ch. 84 ; but its authen- 2 id. 374 (1845); Penny v. "Watts, ticity is denied by Lord Ro.sslyn (2 Ve.s. 2 De G. & S. 501 (1848) ; S. C. 1 Mac. jun. 457), as contrary to Lord Notting- & G. 150 ; 1 11. & Tw. 266 ; A.-G. i'. ham's own decision in Burlace r. Cook, Wilkins, 17 Beav. 285; 17 Jur. 885 supra, and to his doctrine that the (1853) ; Lane v. Jackson, 20 Beav. 535 court has no jurisdiction against a jnir- (1855) ; and see Parker v. Blythmore, chaser for valuable consideration; Col- 2 Eq. Ca. Abr. 79, \A. 1 ; Mejiiell v. lins v. Archer, 1 K. & M. 284 (1830) ; GiUTaway, Nels. Ch. G3; Finch v. Shaw, see also 5 Price, 300. and Colyer v. Finch, 18 Jur. 935, 3 id., T T 2 636 PURCHASE WITHOUT NOTICE. being a mere grantee imder a fraudulent deed and never having been in possession (/ ). 1170. Altlu)ugli tlie title of the bond fide purchaser for valuable consideration without notice is so far respected that no active relief >\ ill be given against him, yet where the pro- perty is not actually in liis possession, but in medio, as, for instance, if a fund which is the subject of dispute be paid into court, a declaration of priority may be made, under which an adverse claimant may get the fruits of a better equitable title (/i) ; and the court will not restrain a person, in possession of the legal title, from proceeding at law against the equitable owner (/). 1171. A person, whose equitable title is valid against the mortgagor only, cannot use this defence against a prior in- cumbrancer. Such is the position of a solicitor with whom his client, after disposing of the estate, has deposited the title deeds {m) ; for he takes them subject to the rights of the pur- chaser or morto;a2;ee. Nor does this doctrine prevent the court from enforcing equitable rights incidental to a clear and absolute legal title, as against a subsequent purchaser of an equitable interest ; the principle being only to refuse equitable assistance to per- sons who are seeking to enforce a legal claim, and [depending upon] the establishment of a legal right. Therefore a prior legal mortgagee is entitled to a decree of foreclosure against a subsequent purchaser from the mortgagor, without notice of the prior mortgage (/i). 1 1 72. This defence should be made by plea if it be de- sired to avoid discovery; for if made by answer, the defendant, submitting to answer, must, according to the general rule, answer not only on this point, but on all the discovery sought by the \k\\{o). ij) O^rih-ie V. Jeaffrcson, 2 Gif. 353, (/») Smith v. Chichester, 2 D. & C Jur., N. S. 970. War. 393, overruling Bernard v. (k) Stackhou.se v. Jersey, 1 J. & FI. Drought, 1 Mol. 38. 721, 7 Jur., N.S. 359; notwithstantling (n) Finch v. Siiaw, 19 Beav. 500; Joyce V. De Moleyns, supra. Colyer f. Finch, 5 II. L. C. 905, 18 Jur. (l) Bowen v. Evans, 1 Jo. & Lat. 935 ; 3 id., N. S. 25. 178, 2G4; A.-G. v. Wilkiiis, 17 Beav. (o) Mitf.Pl. 309; O very t'. Leigh ton, 285. 2 Sim. & S. 234; Earl of Portarlington MODE OF PLEADING. 637 1173. It is not necessary to charge particular facts as evidence of notice, or to charge notice, in a ])ill to which a plea of purchase for valuable consideration without notice may be pleaded (/>). And, generally, a simple allegation of notice is sufficient to let in proof of the particular ciiruni- stances -which constitute the notice (</). 1174. The question of notice will be settled, if necessary, by directing an issue. If such an issue be directed in a fore- closure suit, and abandoned by the defendant, the plaintiff should give notice of motion to take the issue pro confesso ; upon which the court Avill make an order, whereby in effect the trial of the issue will be dispensed with, and the suit will be in the same situation as if the issue had been tried, and found for the plaintiff (r). 1176. Where the notice is verbal, it will be left to the jury to form an opinion as to its sufficiency ; and this was done, even where it was sworn to be the practice of the com- pany, to whose agent the notice was given, to require and record written, but to make no entries of verbal, notices (5). 1 1 76. The date at which notice was given may be a ma- terial question even to the fraction of a day ; hence a refer- ence has been directed, to ascertain the relative times at Avhich, on the same day, a notice was given and an act of bankruptcy committed {t). 1177. Notice must be denied though it be not charged by the bilUzO, for the denial ought to appear on the pleadings, that there may be an opportunity of proving it. The general denial by the plea, of all notice whatever, includes construc- tive as well as actual notice, and therefore amounts to a denial of notice by means of a particular deed, upon which the plaintiff states his claim to be founded. But if the bill r. Soulby, 7 Sim. 28 ; Lancaster v. {s) Edwards v. Scott, 8 Scott's N. R. Evors, 1 Ph. 352. 200. {])) Hughes V. Garner, 2 Y. & C. (0 E.k parte Bignold, 3 Mont. & 329. A}T. 9 ; Ex parte Kichardson, 3 Dea. (^q) Id. ; Clark v. Wihnot, 1 Y. & 495 C. C. C. 00. («) Aston r. Curzon, Ilil. T. 1719 ; (r) Ilartland v. Djincocks, 5 De G. Weston v. Berkeley, July, 1729, cited & S. 561. 3 r, W. 244, note. 638 rURCHASE WITHOUT NOTICE. charge notice gencnilly of the philntiiF's title, evidenced by- notice of a particular deed, then a general denial of notice by the plea, although proper so far as the plea alone is con- cerned, must be supported by a full answer as to the special notice charged (.?•). A defendant has, however, a right to know by Avhat notice he is to be affected, that he may meet the charge. And he is not to be taken by Avay of reply to his answer. Therefore, where notice was neither charged by the bill nor proved by the evidence, and the defendant denied it by his ansAver, the plaintiff was not allowed (//) any inquiry to enable him to affect the defendant with notice. 1178. The denial of notice must be positive and not evasive (z). Denial of notice upon executing the deed (</), or at the time of purchase (i), or in any manner which does not exclude notice before the completion of the transaction, AN'ill not hold good. It should be averred distinctly that there was no notice either at or before the execution of the deed, or of payment of the consideration money (c). The denial must also be as special as the charge (c?), not general, in answer to a charge of particular notice, nor oblique, or by way of negative pregnant. It is, therefore, not sufficient for a person, in answer to a charge of particular facts, to plead that to his knoAvledge and belief there was no notice (e), for then he makes himself the judge of that which the court ought to decide, viz. whether the circumstances amount to notice ; neither is it sufficient, if one charged to be affected with notice, deny merely that he had notice, for this is a negative pregnant, implying notice to his agent (/) ; nor to deny notice that a person was in esse, who could claim (.x) Pennington v. Bccchey, 2' Sim. Fitzgerald r. Bnrk, 2 Atk. 397 ; Story & St. 282; Hardman v. EUamcs, 5 Sim. r. Lord Windsor, id. fiSO ; Ilardinghani 650 ; 2 MyL & K. 732. v. Nicholls, 3 id. 304 ; Tenison v. (y) Hardy v. Reeves, r, Ves. 426. Sweeny, 1 J. & L. 710, but see Cham- (2) 2 Eq. Ca. Abr. C82, D., MS. bers ?'. Howell, 11 Beav. 6. note. (d) Radford v. Wilson, 3 Atk. 81.'). (a) Birch v. Ellames, 2 Anst. 427. (e) Jcrrard v. Saunders, 2 Vcs. jun. (h) More r. Mayhow, Freem. Ch. 187. 175. (/) Lc Neve v. Lc Neve, 3 Atk. 646. (c) Jones V. Thomas, 3 P. W. 243 ; MODE OF PLEADING. fi39 under a prior title, as an estate tail ; he sliould deny notice of the title (y), for if he had notice of it he was bound to see Avhcther it was spent. 1179. The evidence of a single witness will not suffice to establish notice, either actual or constructive, against a posi- tive, plain and precise denial by the answer, where the credit is equal ; but the question of credit may make an exception to the rule ; and, in considering this, it is necessary, says Lord Eldon, to abstract from the mind, as far as possible, the consideration that the evidence on one side may be biassed by interest (A). No weight Avill be given to an objection that it does not appear when a document considered to give notice to a person came into his custody (i) ; for if a person admit that a deed is in his custody, whether as representative or otherAvise, it is incumbent on him to show when it came there. 1180. Lastly, it is to be noted, that a purchaser who de- sires to insist upon the equity of payment Avithout notice, must distinctly plead it, that the question of fact involved may be established by evidence {k). lie will also be held strictly to proof of the payments/), and the cause Avill not be allowed to stand over that he may obtain such proof. And in pleading payment he ought to shoAV the particulars of the payment {7n), and must plead it distinctly and separately, and not by way of recital of the deed (?i). (f/) Kelsall r. Bonnet, 1 Atk. 522. (/•) Phillips r. Phillips, 3 Gif. 200 ; (A) Howarth v. Deem, 1 Eden, 351 ; 7 Jur., N. 8. 1094 ; 8 id. 145. Bury V. Bury, Sugd. V. & P. Ajip. (/) Molony v. Keraan, 2 Dru. & 1128, ed. 11 ; Janson v. Rany, 2 Atk. "War. 31. 140 ; Only r. Walker, 3 Atk. 407 ; G (w) CantrcU v. :Mannington, Finch, Vcs. 184; 9Ves. 283. 219. (i) Earl Pomfret v. Windsor, 2 Ves. («) Maitland v. Wilson, 8 Atk. 814. 485. 640 LAW OF PRIORITY. CHAPTER IX. OF THE PllIORITIES OF INCUMBRANCERS. Part 1.— Of Legal Priority, and herein of Defective Assurances AND THE Doctrine of Tacking. Part 2.— Of Equitable Priority, and herein of the Right to con- solidate SEVERAL Securities. Part 3.— Of Priority under Securities upon Chattels Personal AND Choses in Action, and upon Ships under the Mari- time Law. Part 4,— On Priority by Statute, and herein of the Registration, Shipping and Judgment Acts. Part I.— Of Legal Priority, and herein of Defec- tive Assurances and the Doctrine of Tacking. 1183. Of Priority under Defective Assurances. 1197. Of the Effect of the Legal Estate and the TacUng of Securities. 1181. The ownership of the legal interest in questions of leo-al priority, the order as to time of the several incum- brancers in questions of equitable priority, and as to both the existence of notice, fraud, neglect, or misconduct, are the ■matters chiefly to be inquired into in settling the rights of the persons Avho claim interests in the incumbered property. 1182. It is a sure and established rule, that he who has the first mortgage, having the legal estate, shall prevail before all other mortgagees and incumbrancers (a). There- fore a puisne mortgagee, Avithout notice of a prior mortgage, and who acquires a legal title by getting in an outstanding- term, may recover in ejectment against the first mortgagee ; and if the owner of the equitable fee mortgages and after- wards acquires the legal estate, and mortgages again without (a) Bac. Abr. Mortg. E. 3. DEFECTIVE ASSURANCES. G41 notice, the last mortgagee shall prevail at law in ejectment (A). A mortgagee, who obtains legal priority, shall also have priority in equity ; though, by his delay in completing his legal title, a subsequent incumbrancer has obtained a quasi legal title ; if the delay -were not from negligence or fraud ; — as where(r) a prior mortgagee of copyholds took a conditional surrender Avhich was presented by the homage, but the iniol- ment was delayed till after the inrolment of the security of a later incumbrancer, who was without notice, and there was no custom limiting the time for presenting the surrender ; the first mortgagee being found by a court of laAV to have legal priority, it was held that equity would foUoAv the law. Of Priority under Defective Assurances. 1183. If a mortgage, valid in equity, be defective as to its intended legal ojieration, — as a feoffment for want of liverv, or a surrender of copyholds for want of presentment, equity will make good the defect against the mortirasror : and will give the mortgagee priority as against those who stand in the place of, and take subject to, the same equities as the mort- gagor. It has therefore supplied the want of presentment of a surrender of copyholds, not made within the time limited by custom and statute, as against the assignees of the bank- rupt mortgagor (r/). And so as against persons claiming under the heir (who is liable, in conscience, to make good the defective security), and who have not originally lent their money on the security of the land Cas bond creditors of the ancestor to whom the heir has confessed judgments), equity will make good an imperfect security (^). But no relief will be given to a prior mortgagee or judgment creditor, where (fi) Goodtitle v. Morgan, 1 T. R. 75") ; Right d. Jcifcrys v. Bucknall, 2 B. & Ad. 278. (r) Horlock r. PricsUv, 2 Sim. 7."). (rf) Taylor r. Wlicelcr, 2 Vcrn. 505. {f) Burgh V. Framis, 1 Eq. Ca. Abr. 320; Bac. Abr. :Mort. E. 3. But where a person sold as heir-at-law, not being so, and afterwards the estate descended on him, and he died, not having con- firnicd the title. Eyre, C. B., thought that, though the eonvcyance eould have been made good against him, the equity was personal, and could not be enforced against the heir. But the bill was dismissed on other grounds. (Morse r. Faulkner, 1 Anst. 11.) 642 DEFECTIVE ASSURANCES. the subsequent security is a mortgage duly executed without notice of the other, for the latter mortgagee has then as good an equity as the earlier one, and a better than a judgment creditor, as having lent his money on the land ; and has a legal title also, not to be overturned in equity by a defective security incapable of prevailing at law (/). So where copyhold lands, subject to a covenant to sur- render, made for valuable consideration, were afterwards sur- rendered to a mortgagee without notice of the former cove- nant, the surrenderee was not postponed {(j) ; for he had a legal title and equal equity as having lent his money on the land. 1184, And where all the interests are equitable and the first defective, no help will be given against the latter incum- brance. Therefore, where a recognizance, the time for the inrolment of which had elapsed, had been inrolled by special order, which gave it effect from its date ; preference was given (/i) to a judgment creditor after the date, but before the inrolment of the recognizance : in regard that the estate being subject to a legal mortgage, it could be reached by neither security without the aid of equity (z). And in another case {k) it was said, that the court always gave leave to inrol a recog- nizance after the proper time, with caution, so as not to pre- judice any intervening purchaser (726). 1185. If the mortgagor's title be altogether defective, and he afterwards acquire a good title, the new title may be applied to make good the defective conveyance (l). The mortgagor's covenant for further assurance does not ol)lige him to release his equity of redemption, but only to make such assurance as will support the mortgage {m). (/) Bac. Abr. Mortg. E. 3. 750; 1 P. Wms. 334. (^) Oxwack r. Plumcr, id. ; and [1) Smith v. Baker, 1 Y. & C. C. mentioned 2 Vera. 0.36. C. 223 ; Taylor v. Debar, 1 Ch. Ca. (/i) Fothergill r. Kendriek, 2 Vcm. 274 ; 2 id. 212 ; Seaboume v. Bowell, 234 ; and see 1 Atk. 191. 2 Vem. 11 ; see per Lord Cranworth, (i) For which the maxim Actvs C, Smith v. Osborne, 6 H. L. C. 390. cxirim nemini facit injuria?/!, might (m) Atkins v. Uton, 1 Ld. Rayra., have been relied upon. 36 ; Comb. 318. {k) Bothomley v. Fairfax, 2 Vem. BY TENANTS IN TAIL. 643 1186. A\'hcrc all the actual interests of the conveying parties have clearly passed by the deed, the security will be supported, though the nature of the parties' interests was mis- understood. Thus, where there was a mortgage under the Fines and Recoveries Act, by persons supposing themselves to be tenant for life and tenant in tail, the deed being suffi- cient to pass all their interests, and effectual to bar estates tail, the heir of the supposed tenant for life was not al- lowed (r«) to set up a title, on the ground that his ancestor, being in fact tenant in tail, the deed had miscarried. 1187. Defective assurances by tenants in tail have been the subject of modern legislation ; prior to Mhich, however, if a tenant in tail, either in possession or remainder (w), had made a disposition or created an estate (not being volun- tary (o)) voidable by the issue (p) ; yet, if he afterwards levied a fine, or suffered a recovery, though to a subsequent mort- gagee or purchaser, or for a diflferent purpose, the first opera- tion of the fine or recovery was to give effect to the ante- cedent act, even against the subsequent declaration of the tenant in tail ; the fine worked a confinnation, whether the prior instrument Avcre a legal conveyance or an equitable charge (q). But not, it is said (;•), where, the prior charge being equitable, a legal interest is afterwards conveyed to the subsequent purchaser or mortgagee without notice of the prior charge. And so now by statute (5), where a voidable estate is created by a tenant in tail of lands under a settlement, in favour of a purchaser for valuable consideration, a subsequent disposition by the tenant in tail of the same lands (except by certain leases, s. 41), whatever its object, and Avhatevcr the extent of the estate intended to be created, Avill, if made witli the consent of the protector of the settlement, where there is (/«) Evans )•. Jones, Kay, 29. nom. Caj-el's case, 1 Co. IJI ; Tourle (w) Freem. 310. v. Rand, 2 Bro. C. C. 652 ; Tyn-ell v. (o) Connick v. Trepaud, G Dow, GO ; J^Iead, supra ; Lloyd r. Lloyd, 4 Dru. Pow. Mort. 1G6. & War. 354 ; Beck v. Walsh, 1 Wils. (p) Machcll I'. Clarke, 2 Raym. 778; 276. Tynell v. Mead, 3 Burr. 1705. (r) Powell, Mort. 165-6. (-7) Hunt i: Gateler, Poph. 5 ; S. C. (.s) 3 & 4 Will. 4, c. 74, s. 38. 644 DEFECTIVE ASSURANCES. one, confirm the voidable estate to its full extent; but if tlie protector do not consent, the voidable estate will be confirmed only so far as the tenant in tail could confirm it without the protector's consent. In either case, the voidable estate will not be confirmed as against the person Avho takes under the subsequent disposition, or those claiming under him, Avhere he is a purchaser for valuable consideration without express notice of the voidable estate. And in case of the bankruptcy of the tenant in tail, it is provided (^), that a voidable estate created in favour of a purchaser for valuable consideration, by an actual tenant in tail, or by a tenant in tail entitled to a base fee, who shall afterwards become bankrupt, shall be confirmed by the sub- sequent disposition of the commissioner to its full extent, as against all persons except those whose rights are saved by the act, if there shall be no protector, or being one, if he shall consent to the disposition ; and whether the commissioner may have made a previous disposition under the act or not, or Avhether a prior sale or conveyance shall have been made or not, under prior or subsequent bankrupt acts ; but to the extent only to Avhich the actual tenant in tail before his bank- ruptcy could have confirmed the voidable estate, without the consent of the protector, where (in the case of an actual tenant in tail) there shall be a non-consenting protector; and tlie voidable estate shall also be confirmed to its full extent, against all persons except those whose rights are saved by the act, where at any time after the commissioner's disposition, Avhilst only a base fee shall be subsisting, there shall cease to be a non-consenting protector. And in all these cases also, the voidable estate shall not be confirmed as against the person who takes under the subse- quent disposition of the commissioner, or those claiming under him, where he is a purchaser for valuable consideration with- out express notice of the voidable estate. 1188. Before these enactments, it had been held by a court of common law, in a case {u) in which a bankrupt (^) 3 & 4 Will. 4, c. 74, s. C2 ; aud {u) Beck v. Walsh, 1 Wils. 276. 12 & 13 Vict. c. lOG, s. 208. BAXKIM'TT TENANT TN TAII,. CA'j tenant in tail tlicn dead liad, hefure liis bankruptcy, mort- gaged the estate for a term, that the bargain and sale of the commissioners, made in pursuance of 21 James 1, c. 19, s. 12 (which dechires the sale and conveyance to be for the benefit of the creditors, and to be good in law against the bankrupts, their issue and all persons claiming under the bankrupts after the bankruptcy, and against all whom the bankrupts could bar), would not confirm the mortgage, on the ground that the statute was for the benefit of the general creditors, and not of particular ones, who relied on the security they had accepted ; and that, the tenant in tail having suffered no recovery in his lifetime, the mortgagee's estate was gone. But the decision has been forcibly objected to, because {x) the mortgage was before, and not after the bankruptcy ; and the bankrupt could not have barred the mortgagee by a common recovery, which would, on the contrary, have supported the mortgage ; and, because (//) the mortgagee's estate was not made void, but only voidable, by the mortgagor's death. And in the latter of two cases (z), in Avhich the estate was held to be bound in the hands of the assignees, by virtue of the tenant in tail's covenant for further assurance, the decision in Beck v. Walsh was disapproved of. 1 1 89. The acts of the bankrupt tenant in tail are void as against the commissioner's disposition, where they Avould have been void against the assignees, if the bankrupt had been seised in fee : but the bankrupt's powers of disposition remain in hun, subject only to the powers of the commissioners, the estate of the assignees, and the rights of all persons claiming under them. And the commissioner's disposition of the lands of a bankrupt, being actual tenant in tail, or tenant in tail entitled to a base fee, is to be as valid and effectual Avhen the bankrupt is dead, as when he is living at the time of the dis- (a;) Powell, Mort. 192. in bankruptcy under 6 Geo. 4, c. in, (y) Coote, Mort. 182, ed. 3. s. G5. But see remarks of Turner, L. J., {z) Edwards v. AiipU'bt-o, cited 2 njion Beck v. Walsli, in Stur-;is r. Bro. C. C. G")2; Pye v. Diiubuz, 3 Bro. Morse, which turned upon the Insolvent C. C. 598. And see Ex parte Wise, Act, 1 Geo. 4, c. 119 (2 Do G., F. & J. M. & M'A. 65, where equitable mort- 223). gage by tenant in tail was made good G46 DEFECTIVE ASSURANCES. I)ositIon, in case at the time of his death there shall be no protector of the estate tail or base fee, or in case (where the bankrupt was actual tenant in tail) there shall be issue inhe- ritable, and no protector or a consenting or non-consenting protector ; or in case (where the bankrupt was tenant in tail entitled to a base fee) there shall be issue, Avho, if the base fee had not been created, would have been actual tenant in tail, and either no protector or a consenting protector of the settlement (a). The court has refused, in a suit for specific perfomiance of a covenant for further assurance, to compel the bankrupt to exercise the power of disposition reserved to him by s. 64, by enlarging the estate conveyed by the mort- gage, and so barring the estate of other persons than the grantor, where there was no special contract to do so {b). 1190. If a judgment debtor become tenant in possession, he may be ordered, in a suit to realize the charge, to give full effect to it by executing a disentailing deed (c). 1191. Equity will give no help to contracts for the transfer of ships, or any interests therein, where the contracts are not made in compliance with the statutes which regulate such transfers (91). A contract, not perfected by the indorsement of((Z), or which does not recite (e) the certificate of registry of the ship or its contents (even though the certificate be annexed to the contract (/)) will therefore be of no avail ; the rule being strictly adhered to, that to make a good title in equity, there must be an effectual transfer at law. And this rule prevailed under 8 & 9 Vict. c. 89, even though the person who claimed under the later transfer had notice, at the time of taking it, of the prior one ; for the 39th and other sections of that act, which made an inspection of the register by persons dealing with shipping property necessaiy, to enable them to comply (o) 3 & 4 Will. 4, c. 74, ss. 63, 04, Go, 308. incoqjorated into the Bankruptcy Act, (d) Mestacrr. Gillespie, 11 Ves. 621. 1849, 12 & 13 Vict. c. 106, s. 208. (e) Hughes v. Morris, 2 De G., Mac. (b) Dam v. ToUcmache, 2 Jur., & G. 349 ; JM'Calmont v. Eankin, id. N. S. 1181. 403. (c) Lewis V. Duncoinlje, 20 Ecav. (/) I5rewster v. Clarke, 2 Mcr. 75. MEUCIIANT SIIIITIXG ACTS. G47 with the act, clearly negatived any equity arising out of the doctrine of notice (y) (1285). Jn deciding the case last cited, Lord St. Leonards ex- pressly guarded himself against saying more, than that there could be no equitable relief on the defective transfer; but the Court of C. B. has since held {It), that the acts also exclude any remedy at lata for breach of the contract. The provisions of the act of 1862 appear not to have affected these deci- sions (91). 1 1 92. AVhether relief could be given in equity where the claim of the later incumbrancer is tainted with fraud, was at first questioned (2); and it has since been determined (A) that it cannot, under circumstances amounting: to fraud, according to the ordinary sense of the word in equity ; though the court would not say that there might not be such a case of actual gi'oss fraud as Avould enable it to give relief. There is, however, authority (/) for the proposition, that even in cases of gross fraud, as well as in those of accident or mistake, there will be no relief. In a modem case(»i), a person who by accident came into possession of the bill of sale of a ship, made to himself in pursuance of a contract which was abandoned, fraudulently registered himself as absolute owner, and was held to have acquired a valid title both at law and in equity. But the terms of the judgment seem to intimate that if the execution of the deed had been procured by fraud, or if it had been delivered as an escrow, or for a consideration not legal, the decision might have been dif- ferent. 1193. Where the contract gives no interest in the ship, but only in the disposition of the proceeds of a sale made by the registered o^Mier, the court will relieve. Hence, where the registered o^vner of shares in a ship, by an instrument {g) M'Calmont v. Rankin, 2 De G., {h) M'Calmont v. Kankin, supra. Mac. & G. 403. (/) Barker v. Chapman, 1 :Mad. 401, (/t) Duncan v. Tindall, 13 C. B. n. ; and sec the observations of Sir T. 258 ; 17 Jur. 347. Plumer in Thompson i: Leake, id. 43. (i) Mestaer v. Gillespie, 11 Ves. (7«) FoUett ». Delany, 2 De G. & S. 621 ; Speldt i-. Lechmere, 13 Ves. 088 ; 235. Newnham v. Graves, 1 Mad. 3'jy, u. G48 DEFECTIVE ASSURANCES. admitting that lie Avas a trustee of the shares, agreed Avith the representatives of the cestui que trust to sell the shares and l)ay the proceeds to the persons entitled ; the ship having been sold accordingly, the juirchaser Avas ordered to pay the purchase-money into court, for the benefit of the persons claiming under the cestui que trust («). 1194. If the transfer be by way of, and be completed as, a security, but by error or fraud in the registry, it does not thereby appear to be a mortgage, the mortgagee Avill not be alloAved to take advantage of the misregistration {u). This Avas held in a csise(p), iu Avhich the bill of sale Avas registered bv the morto-agee as an absolute transfer, Avithout noticing the indorsement Avhich made it a mortgage. The mortgagor, being unable to produce the bill of sale, could not rectify the error; but neither the mortgagee nor his vendee Avere alloAved to claim an absolute title by virtue of the false regis- tration. This Avas decided on the principle that the mere absence of any declaration, Avhether a sale or mortgage Avas intended, did not invalidate the transaction ; and that the legal interest Avas not so taken out of the mortgagor as to exclude his right of redemption. The clause of the actiq) Avhich regulates the registration of mortgages, requires that the entry in the book of registry, and the indorsement on the certificate, shall sIioav that the transfer Avas only made as a security, and provides that the transferror shall not cease to (/i) Armstrong v. Armstrong, 21 of the decision; but the case was not Beav. 78 ; and isce M'Cabnont r. Kaii- before them judicially, and was ulti- kin, on appeal, supra ; where Lord St. mately decided on a different ground ; Leonards would not lay down a rule see Parr d. A])i)leby, 7 Uc G., M. & G. that persons unregistered cannot autho- 585. As to the elfcct of the Registry rize a ship to be sold, and direct how Acts upon contracts concerning freight, the money shall be applied. On a see Armstrong v. Armstrong, 21 Beav. previous apjilication, the Master of the 88. And upon insurances u])on the Rolls gi-antcd an intcriiii injunction ship, Hutchinson v. Wright, 25 Beav. in Armstrong v. Armstrong, 21 Beav. 444. 71, restraining the entry on the register {o) Sec 8 & 9 Vict. c. 89, s. 45 of the transfer of the shares to the (90, 91)- ])urchaser, & prima facie case of fraud (yy) VVliitfield i'. Parfitt, 15 Jur. 852; having been made out. The observa- 4 I)e G. & S. 240. tions of the Lords Justices upon this {q) 8 & 9 Vict. c. 89, s. 45. part of the case do not show an apjiroval LEGAL PRIORITY— TACKING. 649 be owner of the vessel except fur the purpus^es of the mort- gage ; but it does not provide that simple registration of the bill of sale may not, upon extrinsic evidence, be declared to be, and be treated as, a mortgage. 1196. The exceptions to the equitable doctrine concerning defective contracts, in the case of the Ship Registry Acts, rest upon public policy, as shown by the acts, and upon the reasoning that the person seeking relief has not as in other cases a contract to stand upon ; the contract being already destroyed by the acts. 1196. Questions as to the rights of persons under defective conveyances may be settled in suits between mortgagors and mortgagees, in which the mortgagee has a right to bring before the court all who claim interests in the estate (r). Of the Effect of the Legal Estate, and the Tacking of Securities. 1197. The influence of the legal estate not only gives priority to the security to which it is joined ; but, by a doc- trine which has long been adopted by courts of equity, both in England and Ireland (.s), a prior legal mortgagee, by an- nexing to his original security another which he holds for a subsequent debt, or an incumbrancer subsequent to the second, by getting in a prior legal security, may, under certain cir- cumstances, postpone the rights of mesne incumbrancers, until satisfaction of both the securities which have been thus united. This doctrine is applicable both to real and personal estate, and whether the original security be the legal or the e([uitable one, it is commonly called tacking. It seems to be altogether contrary to any principle of equity, the essence of which is equality, and it is in fact only founded upon the preference which in tliis country is shown to legal titles by courts of equity. The principle (/) of it is, that where there is a legal (/•) Evans v. Jones, Kay, 20. the Irish Registry Act (69, 1274)- (.v) Teuison v. Sweeny, 1 J. & L. (0 t^cc March c. Lee, 1 Cli. Ca. 162; 710 ; subject, however, to the effect of Monet v. Taske, 2 Atk. J2 ; Wortley M. VOL. II. ^ U 650 D03IINI0N OVER title and equity in one man, he shall not be hurt by reason of a mere prior equity in another ; and its effect is merely to change the order of priority, and not to alter the mode of dis- charging the securities by combining the debts, and paying the interest on both in the first instance, instead of the inter- est and principal of each in succession {u). 1198. ^Ve proceed to consider the qualifications necessary for the creditor who proposes to tack, and the circumstances under which he may do so ; the nature of the debts which are subject to this right, and against what persons it may be enforced. I. The right to tack, as well as the right of legal priority generally, (to Avhich the following remarks as to the posses- sion of the legal estate are also applicable,) depends in the first place upon the possession of, or dominion over, a prior legal interest, to which the inferior security may be joined. A creditor cannot tack, if there be a prior legal mortgage, or a legal estate (x), or it seems a term of years, altogether outstanding (?/), or attendant upon the inheritance (z) ; in Avhich latter case the term will in equity follow all the estates subsisting upon the inheritance. 1199. The possession of the legal estate may be effectual, whether it be obtained before, or at the time of the pur- chase («) ; but possession of it even at the latter period is not necessary ; it is of equal force in the hands of an incum- brancer Avho takes it upon advancing his money, or later, in pursuance of a contract at the time of the advance for a legal V. Birkhcad, 2 Vcs. o71. Belcliicr v. Renforth, 5 Bro. C. C. 202; liooper V. Harrison, 2 Kay & J. 80. (m) Dunsany v. Latouche, 1 Sch. & Lei. 163 ; Montgomery v. Donohoe, 5 Ir. Ch. R. 495 ; 6 id. 168. (x) Brace t;. Duchess of Marlborougli, 2 P. Wms. 490. (y) Ex parte Knott, 11 Vcs. 609, where the claim to tack was given u]> as against the mcine incumbrancer. (z) Charlton v. Low, 3 P. Wms. 330, i. e., supposing that it is not merged by the Satisfied Terms Act, 8 & 9 Vict. c. 1 10. But a term which was already attendant might before that Act be clothed with a trust for a mortgagee or purchaser. (Shaw v. Johnson, 1 D. & S. 412 ; 7 Jur., N. S. 1005. See Sugd. R. P. S. 282, note, ed. 2. And see Phint V. Taylor, 7 11. & N. 211 ; 8 Jur., N. S. 140 J Owen i-. Owen, 3 H. & C. 88.) ((7) Huntington v. Greenville, 1 Vern. 49. THE LEGAL ESTATE. 651 mortgage (i), and of one who, having at that time no notice of a prior incumbrance, afterwards gets in the legal estate as a protection for his own debt (e). 1200. The possession of the entire legal estate is not ne- cessary ; a partial interest only, as a term of years, or a security Avhich may be used at law, as a judgment, or statute, being sufficient (f/). But an interest less than the whole legal estate will be postponed to one of earlier date. Thus a mortgage of the inheritance (e), subject to a tenn, will be postponed to a security fortified by that term ; and a later judgment, or statute, will give no protection against the owner of an earlier one. So a term, created by a tenant for life, to secure an incumbrance on his life estate, will have priority over a later ;*eversionary term limited by him out of the inheritance, though it be done by virtue of a power in the will under which he claims {f). 1201. But the acquisition of the legal estate in part of a security will not protect any more of the subsequent incum- brance than is charged upon that part(^). So that if part of an estate be mortgaged to A., then the whole to B., and then the whole to C, the latter, by getting in A.'s mortgage, shall not protect more of his own debt than was charged on the land mortcfaged to A. On the other hand, if two estates be mortgaged to A., then to B., and then one of them to C. ; C. redeeming A., shall hold both estates against B., till payment of both securities, and is not confined after payment on the purchased security to that part of the estate comprised in his original mort- gage {h). But this belongs more properly to a diiierent prin- ciple of priority (1330). 1 202. Actual possession of the legal interest is not always necessarv. An incumbrancer in Avhose favour a declaration (J) Cooke V. Wilton, 7 Jur., N. S. 2 P. "Wms. 491. 281 ; 29 Beav. 100. (e) Ex parte Knott, 11 Ves. 609. (f) Willoii-hby v. Willougliln-, 1 (/) Hurst r. Hurst, IG Bcav. 372. T. K. 7G3 ; Barnett i'. Weston, 12 Ves. {g) March v. Lcc, 1 Ch. Ca. 1G2. 130. (//) Bovcy V. Skipwith, 1 Ch. Ca. (</) Bracer. Duchess of Marlborough, 201. u u 2 652 CONSTRUCTIVE POSSESSION. of trust of the legal interest lias been made (e), or Avho, liaviug the best right to call for a transfer of that interest, has done some act short of obtaining a transfer, but equivalent to an act of ownership (A), shall have all the benefit that he would have gained by an actual transfer. This has indeed been expressly denied to be law, even where (Z) the trustee of the legal estate covenants to hold it for the equitable mortgagee ; on the ground, tliat if the latter has the best right, he ought to avail himself of it, and that if he neglect to possess himself of the legal estate, another may do so if he can. But the doctrine, that actual possession is not necessary, is stated by Lord St. Leonards, and apj)ears in fact, to be the result of the other authorities. The custody of the deed creating tlie term, and a declaration (m) of trust in favour of the second incumbrancer, Avithout notice of the j)rior mortgage, will give him an advantage over the first, who has no express declara- tion, or has only a covenant to produce the deeds respecting the term ; and it may be inferred from an observation made by Lord Eldon(?i), that, where no declaration exists, the taking j)ossession of the deed alone, or making the trustee a party to the instriunent, are acts which will be sufficient to give the benefit of the legal estate. 1203. But an express declaration of ownership will not avail against a subsequent bond fide incumbrancer Avithout notice who has obtained an actual assignment (o). Nor, it seems, will an incumbrancer, who, having the best right to call for, has not actually got in the legal interest, or done some equivalent act, and has no express declaration of trust in his favour, be allowed to derive any advantage from his bare right (/>»). (i) Willoughby v. Willoughby, 1 T. R. 763 ; StatiboiJC v. Earl Veriicy, 2 Eden, 81; Co. Litt, Butl., n., 200 \) ; Wilkes V. Bodington, 2 Vern. S'JD ; Wilinot V. Tike, 5 Hare, 22. (Ji) Pomfret v. Windsor, 2 Ves. 486 ; Maundrell v. Maundrell, 10 Ves. 271 ; Ex parte Knott, 11 Ves. 618 ; Sugd. V. & P. 784, ed. 11. {I) Frere v. Moore, 8 Price, 475. (?m) Staidiope v. Earl Veniey, supra. («) Maundrell v. Maundrell, 10 Ves. 271. {(i) Stanhope v. Earl Vemey, supra. (/<) Maundrell v. ilaundrell, 10 Ves. 271 ; Ex parte Knott, 11 Ves. 609. The meaning of Lord Eldon in the latter case appears to be misrc])rescntod by the rejjorter's marginal note ; in conformity with Avhich the case is cited SATISFIED INTEREST. r,j3 So, if the pnisiic incunibrancGr having; the le_!:^al estate, upon trust for the first mortgagee (and under circumstances Avhich entitle him to hold it after discharge of the prior in- cumbrance, for the security of his own as against the mesne incumbrancer), part with the legal interest by selling the estate in execution of his trust, for the purpose of discharging the prior mortgage ; the legal title being no longer inter- posed, the court falls back upon the equitable principle of priority of date (1223), and deals accordingly with the sur- plus monies in the hands of the puisne incumbrancer ( q). 1204. In cases which are unaffected by the Satisfied Terms Act(r), it is not material, as regards the power of the legal estate to confer priority, that the debt, in respect of which the legal security was given, has already been satisfied, whether it Avere a mortgage of the fee (s), or for a term {t), or a judg- by Lord St. Leonards (V. & P. 783, cd. 11; 738, ed. 14), and adopted by Mr. Coote (ilort. 410). Lord Eldon is assumed to have laid down that the jrior incumbrancer, if he has a better right to call for the legal estate, is, in equity, in the same state as if he had it. But this does not agree with his next observation, that before deciding that question in bankruptcy, he must be satisfied there was no danger of error ; nor with his doctrine in ^fdiindrcll v. Mtinndrell, where he plainly says that the term must he got in in some sense; and then goes on to say, what will be sufficient. It is submitted that the observation in I-J.r j>nrte Aiiott referred throughout to the question, what a court of equity was bound to hold, and should run thus: — "It must be con- sidered with reference to the question, whether the first incumbrancer has a liettcr right to call for an assignment of the legal estate, and ivhcther, from that circumstance, a court of equity is bound to hold, not only that the first mortgage shall be protected as if it was the first equitable security, but that, having a better right to call for the assignment, he is in equity in the same state as if he had it." By this reading, the sentence will be quite consistent with the rest of the judgment. ((/) Rooper v, Harrison, 2 Kay & J. 86. (r) 8 & 9 Vict. c. 112. (.s) Hitchcock V. Sedgwick, 2 Vem. 156; Turner r. Eichmoud, id. 81; Holt V. Mill, id. 279 (0 Willoughby v. Willoughby, 1 T. R. 773 ; Maundrell ;•. :Maundrell, 10 Ves. 270; Evans v. Bickuell, 6 A'es. 174. Even against the Crown, if a term in gross were assigned before actual extent, it would not be liable ; nor would a tenu, limited on a sale to the vendor to secure part of the pur- chase-money, be liable under an extent to the vendee, where before payment of the purchase-money he sold to a pur- chaser, who paid the debt, and had the term assigned to a trustee to attend the inheritance, for the term was never in the Crown debtor. (Nicholls v. How, 2 Vem. 389 ; Fleetwood's case, 8 Rep. 171 a; King r. Lamb, 13 Pr. 649.) But a term attendant on the inheritance would be bound by the extent, even in 654 POSSESSION UNDER F^VI.SE TITLE. mciit {u), or statute (.i-) : it was even held that a legal advan- tage might be obtained by ill-practice or actual theft (?/), but this certainly Avould not now be permitted (2'). It was said in an old case (a), that the purchase of satisfied incumbrances might not be allowed Avhere a person was designing a fraud ; and where, by fraud, a prior incumbrance was procured to be vacated, the person aggrieved was put in the same plight as if it were in force (i). 1206. A conveyance of the legal estate by the mortgagor will, however, give priority to the assignee, though it was fraudulent iji the mortgagor to assign it, or though it was obtained from him by fraud, provided the assignee had no notice of the fraud (c) ; the protection has been extended to a person in possession under a false title depending upon a forged will, but without notice of the forgery (d) ; and the same rule enables a mortgagee in possession to tack a further advance made without notice to a person falsely claiming the equity of redemption (e). 1208. A purchaser without notice who has the legal estate is protected, though he who conveyed it to him was the hands of a bond fide purchaser also a good, and a time convenience to without notice. (Nichollsi-.IIow, supra; come to his right." {Doct. if Stud.liA:.) The Iving v. Smith, 13 Price, G56.) So where a person whose property was (tt) Edmunds v. Povey, 1 Vern. 187. i)ledged, and the money misappropriated (a;) Stanton v. Sadler, 2 Vern. 30. by another, promised to pay a certain (y) Sir John Tagg's case, Eq. Ca. sum for redeeming it ; and afterwards Ahr. 354, pi. 1 ; 1 Ch. Ca. G8 ; Buniel by a trick repossessed himself of the r. Ellis; and Harcourt r. Knowel, cit. 2 j)ropcrty ; he was not allowed to hold Vern. 159. it against the pledgee without payment, (z) Carter t). Carter, 3 K. & J. CI 7; (?iIocatta v. Murgatroyd, 24 Beav. 4 Jur., N. S. 63. 585.) (a) Edmunds v. Povey, supra. (r) Lloyd v. Attwood, 3 De G. & J. (J) Huntington r. Greenville, 1 Vern. 614; 5 Jur., N. S. 1323; Adsetts v. 4;t. " A man who comes in upon valu- Hives, 33 Beav. 52; 9 Jur., N. S. 1063. able consideration cannot strengthen See Case v. James, 29 Beav. 512; 2De his title by purcha.sing in the title of a G., F. & J. 257. stranger by fraud." {GUb. Lex Prcct. (d) Jones v. Powles, 3 M. & K. 581. 248.) " It sufTiceth not in the law, ne See Robinson v. Briggs, 1 Sm. & G. yet in conscience as me secmeth, that a 188. man hath right to that that he sucth (r) Young r. Young, L. R., 3 Eq. for, but that also he sue by a j ust means, 801 . and that he hath both good right and NOTICE OF FKAll) OU TlllST. 655 afFectcd by notice. And vice versa, if an incumbrancer with- out notice assign to one who has notice, the assignee, pro- \idcA\ he be a transferee of the very same interest which was held by the person under wliom lie claims ( /"), may protect himself; and the reason given by Lord Hardwicke is, that it is to prevent the stagnation of ])roperty (//). Therefore, il a third mortgagee advance his money upon a transfer of the first moi'tgage, without notice of the second, he shall have priority over the second, though the latter upon taking his security gave notice to the first (h). The rule holds, although the conveying party has notice of an actual trust, where he is an unsatisfied mortgagee, who lent his OAv'n money without notice of the trust ; so that where one, who had covenanted to convey upon trust, made three successive mortgages with- out notice ; the first mortgagee, who had priority by virtue of the legal estate, was able, by conveying to the third mort- gagee, to give him preference before the trust (i). But where a dry legal estate is in question, although it will benefit an assignee w^hen it is got in from one Avho has no notice of an intervening charge or trust, it seems that if the holder have notice of such an interest, the assignment of the legal estate will be no protection (A). 1207. And inasmuch as he Avho takes an assignment from a trustee with notice of the trust, becomes himself a trustee (/), a subsequent equitable mortgagee without original notice, will not be allowed any benefit by getting in a legal estate from a mortoao-or, whom he knows to be a trustee, holding the legal estate for the protection of a prior equitable mort- (/) Brandling r. Orel, 1 Atk. 571. (£) Mcrtins v. Jolliffe, Ambl. ;5i:5 ; Sweet V. Southcote, 2 Bro. C. C. G6 ; Lowther r. Carlton, 2 Atk. 1;V.»; Ferrars v. Chen-y, 2 Vern. 383; ISI'Quecu v. Farqiihar, 11 Vcs. 467 ; see 4 De G., M. & G. o03. See Harrison v. Forth, Pre. Ch. 51. (ft) Peacock ?•. Burt, Cootc, Mort. 569 ; 4 L. J., N. S., Ch. 33. ()■) Bates r. Johnson, Juh. 304; 5 Jur., N. S. 842. See Spencer v. Pear- son, 24 Bcav. 266. But in a suit for specific perfonnance, such a title de- ]icncling- u])on the want of notice of the vendor under such circumstances, will not be forced on the purchaser (Freer r. Hesse, 4 De G., M. & G. 503.) (7i) Carter t'. Carter, 3 K. & J. 617 ; 4 Jur., N. S. 63. See Prosser r. Kicc, 28 Beav. 68. (/) Saunders v. Dehcw, 2 Vern. 271. 656 DEBT MUST BE SECURED ON ESTATE. gagee (?7i). So the holder of debentures upon the property of a corporation, under an act of parliament -which placed all debenture holders on an equal footing, was not allowed to gain priority in respect of a debenture debt by means of a mortgage on other property of the corporation (n). Even where the mortgagee acquired the legal estate by a conveyance, executed under a mistake as to the ownership of the property, it was held that he shovdd have no benefit against trusts disclosed on the face of the instrument which constituted his title to the legal estate (o). 1208. II. It is essential to the right to tack, that the debt was either originally contracted on the credit of the estate, or, if at first it were a simple contract debt, or only a lien upon the mortgaged property, that a specific security Avere taken for it before the title of the subsequent incumbrancers accrued (j)). The whole doctrine of tacking being a great severity upon the mesne incumbrancer, who may have lent his money on a sufllicient security, and is yet liable to be defeated by a matter infer alios acta, this rule is strictly followed (§'). The consequences of it are, that a legal mortgagee may tack a further charge (r), or a subsequent judgment, or sta- tute debt (5), to his mort^ao-e asfainst a me^/ze incumbrancer. And an equitable mortgagee may protect his security by getting in a prior legal incumbrance if). But it seems, that in the present state of the law, the purchase of a prior judg- ment will not help him. (ot) Allen V. Knight, 5 ITarc, 272. See Willoughby r. Willoughby, 1 T. R. 773 ; and see Blennerhasset v. Day, 2 Ba. & Be. 133 ; Sharpies v. Adams, 32 Beav. 216. (w) De Winton r. Mayor of Brecon, 26 Beav. 533. (0) Carter v. Carter, 3 K. & J. 617, 4 .Tur., N. S. 6.3. (/>) Brace v. Duchess of Marlborough, 2 P. W. 491 ; Ex parte Knott, 11 Ves. 609; Lacey v. Ingle, 2 Ph. 413. (jl) Braces*. Duchess of Marlborough, supra. (r) Bedford v. Backhouse, Kelyngc, r> ; Williams v. Owen, 13 Sim. .597; Lloyd V. Attwood, 3 Do G. & J. 614 ; o.Jur., N. S. 1323. (/?) Shepherd v. Titley, 2 Atk. 348; .Jackson v. Langford (Anon.), 2 Ves. 6G2 ; Brace r. Duchess of Marlborough, sujjra. (0 Goddard v. Complin, 1 Ch. Ca. 119. KIOTIT OF .TT"Df;:\IEXT rilKDITOII. 057 "Where a statute, recognizance or jutlgmont is taken in liy a mortgagee to defend a subsequent incumbrance, the ]»\ir- cliaser Avill not be further or longer protected by it than till lie has received so much as will satisfy that security (?/). Now, the account at law on a judgment was for no more than the extended, which was always much below the real, value of the estate (x) ; in equity the account was of the amount really received; but, if the judgment were in the possession of a mortgagee, he was compelled to account only according to the extended value, unless he had received enough to satisfy his mortgage also(y). The possession, therefore, of the judgment gave him the advantage of accounting upon the extended value only ; but the judgment creditor being now subject to such account (z) in the court out of wliich the exe- cution is sued, as a tenant by elef/it is subject to in equity, it is observed, by Mr. Coote (a), that under the new law a sub- sequent incumbrancer will no longer gain this advantage by buying in a prior judgment debt. On the other hand, a creditor by statute or judgment before the statute 1 & 2 Vict. c. 110, could not tack by getting in a legal security (b) ; for he did not trust to the credit of the land, nor could he, like a subsequent mortgagee, be deceived bv the mortgagor's concealment of a prior incumbrance. 1209. There have, however, been decisions, which, if they be of sufficient authority, establish an exception to each branch of the above rule. It was held (c), that a mortgagee might not tack a subsequent judgment against a mesjie mort- gao-ee, or assignee of the equity of redemption, if he had bought it in without the consent of the mortgagor ; because this, it was said, was only to load the estate where the mort- gagee had no prospect of bettering his own security. The decision appears to be of doubtful authority. The judgment was equally a burthen upon the estate, whether it were a se- («) 1 ¥6111.52. (h) Bracp D. Duchess of Marlborough, U) 2 Ves. 590. 2 P. W. 491 ; Breerton v. Jones, 1 Eq. (y) 3 Atk. 517; Tow. Mort. 518, Ca. Abr. 325 ; Ex parte Knott, 11 Vc?. 519. 609. (r) 1 & 2 "Vict. c. 110, s. 11. (f) Breerton v. Jones, 1 Eq. Ca. (rt) Coote, Mort. 406, ed. 3. Abr. 325. 658 -SMIEN JUDGMENT CREDITOR curity for money advanced by the prior mortgagee or by a third person. If the debt liad been originally the third mort- gagee's, he might have tacked it against the mesne incum- brancer. AVhy not, then, when it was purchased ? The mortgagor had a right to charge the equity of redemption. Why should the mesne incumbrancer be in a better position by means of an indirect charge to A., through the medium of B., than by a direct judgment to A. ? In the other case referred to (tf), the prior incumbrancer had first a judgment debt and then a mortgage, but between his two securities there was another judgment debt. Under the strict terms of the rule, the prior incumbrancer could not have tacked, because he did not originally advance his money on the credit of the estate ; he had a mere lien. But it was held, that if he had no notice of the second judgment when he took his mortgage, the mesne judgment creditor should not have a sale without paying off both the mortgagee's securities, principal and interest ; for otherwise a mortgagee would be in a worse position, with a prior incumbrance in his favour, than a mortgagee without notice of a prior judgment. And the case was distinguished from the purchase by a subsequent judgment creditor (e) of a prior mortgage. 1210. Under the present law, it seems possible that tack- ing may be eifected by a creditor who has originally lent his money on the security of a judgment, without resorting to the principle of the decision in Smithson v. Thompson, and yet in conformity with the rule under consideration. The sole reason why the judgment creditor could not tack before the statute 1 & 2 Vict. c. 110, seems to be, that he had not lent his money on the credit of the estate. He had no specific \ien(f). Now the act in question expressly gives (r/) the judgment creditor the same remedies in equity, against the hereditaments charged by virtue of the act, as he would be entitled to in case the person against whom judg- (d) Smithson v. Thompson, 1 Atk. (/) Brace v. Dnchess of Marl- 520. borough, 2 P. W. 491 ; Jackson v. (e) Churcliill v. Grove, 1 Ch. Ca. Langford (Anon.), 2 Ves. 6G2. 35, 36. Q/) Sect. 13. ALLOWED TO TACK. G59 ment is ciitcicd up IkkI [tower to charge, and liud hy writing agreed to charge, the same hereditaments with the judgment debt and interest. A judgment creditor is therefore now a person having a charge on the estate, as if by contract, instead of, as heretofore, by force of a [n-oceeding in invitum ; from the time of registration he has a specific charge (A) upon the estate, and the character of an equitable mortgagee {i). If, therefore, before the act that equity only was wanting which would arise from having trusted to the credit of the estate, the act seems to have supplied this defect. It is not material whether the judgment creditor at first lent his money on the judgment, or took it to secure an existing debt ; for a simple contract bond or judgment creditor, Avho takes a mortgage to secure his original debt, being entitled to tack, as much as a mortgage creditor, from the beginning (k), it seems to follow, that if a judgment creditor may tack as above suggested, it will make no difference how the judgment Avas taken. But this principle Avould not, it seems, apply as well to the subsequent, as to the prior judgment creditor ; for the former takes by his judgment only what the debtor has to give him, that is, he takes subject to prior equities (1291). It may, however, be considered, that the doctrine of tacking is not to be extended, on the strength of an accident of legislation. The rule in question has been held to enable the holder of notes, expressed as receipts for a sum of money from tlie creditor, " to be secured by mortgage upon my S. estate," to protect his debt by the purchase of a prior legal mortgage (/). AVhere, however, there was a legal mortgage of leaseholds (/??), the mortjrao-ee was not allowed to tack to that security sub- sequent advances made on the strength of a parol engage- ment that they should be so tacked. This last case was not decided upon the rules of tacking in the view which we are now taking of them, but upon the question as to the right to (/i) Per Lord St. Leonards, 1 Dm. (I) Matthews v. Cartwright, 2 Atk. & War. 19"). 347. (;) Per Tunicr, L. J., 17 Jur. 081.; (w) Ex parte Hooper, 1 Mcr.7. (k) Ex pai-te Knott, 11 Yes. 609. 660 :mortgagee must claim ix make an equitable mortgage, by deposit, a security for sub- sequent advances. The argument Avas, that the mortgagee, having a legal assignment, held under a contract for convey- ance, and not a contract for deposit, and the doctrine of equitable mortgages was not to be extended to such a case. The case of Mattheios v. Cartwriglit of course assumed, that the notes or receipts, if they did not amount to an equitable charge upon the estate, Avere at least evidence of an actual loan on the security of the land. The operation of this rule prevents a person who has lent the mortgagor money on the security of a contract for sale of the estate, that is, on the security of the purchase-money , from protecting his advance by getting in a prior legal mort- gage (??). 1211. Ill, The person who claims a right to tack must hold both securities in the same right. Therefore, if a prior mortgagee take an assignment of a subsequent mortgage, as trustee for another (o), or become possessed as executor (7?) of 2^^ puisne mortgage of leaseholds, he cannot tack to the prejudice of mesne incumbrancers; for though the estates be in one person, he holds them in different rights, and as if they were in different persons. But he may tack under a deed which secures a debt of his own, though it also contains trusts for others (5'). There are earlier cases, in which creditors, holding one of the securities as personal representatives, have been allowed to tack. As where a woman executrix (r), and sole legatee of the mortgagee, married, and then lent money to the mort- gagor on bond. And Avhere a woman, being a bond creditor, married the mortg-agee and died, and he took out administra- tion to her, and was alloAved (.9) to tack {t). But it will be observed in both these cases, that it was only the legal title (n) Lacey v. Inf,'le, 2 Phil. 413. 206. (0) Morret /•. Paske, 2 Atk. 52; and (r) Price v. Fastncdgc, Amhl. 685. see Shaw v. Neale, 6 H. & C. 581 ; (.s) Blackwcll v. Symes, cited id. 4 Jur., N. S. fi95. (t) Note, that the tacking in these {p) Bamett v. Weston, 12 Ves. 130; cases was against the heir of the mort- and see Lewes v. Morgan, 5 Price, 1 55. gagor, and therefore not in conflict with (?) Spencer v. Pearson, 24 Beav. Rule 7. SAME UIGIIT AXI) WITHOUT NOTICE. Gfi 1 ■which was gained by representation, the executrix and admi- nistrator being otherwise beneficially entitled to the property: Avhereas this rule, it is conceived, applies only Avlieu the per- son claiming to tack has nothing more than a legal title by representation, or as a trustee to one of the debts. 1212. IV. The prior mortgagee, when he acr^uires the subsequent security (u), and the puisne incumbrancer, when he originally lends his money (x), must be without notice of the incumbrance, which, by virtue of the legal estate, he claims to postpone. Therefore, if a third mortgagee have advanced money (//), with notice of the second, and have afterwards bought in the first, he cannot hold as against the second after the first has been ![)aid(732). Becanse notice makes him come fraudu- lently, so that he has no longer equal e(|uity (which must coincide with possession of the legal estate) with the other incumbrancer ; and besides, as has been observed (z), the act of lending with notice amounts to an acknowledgment, that the lender Avill take subject to him of whose claim he has notice. And a mortgagee, who has lent with notice of a prior incum- brance, shall not, by getting in an old outstanding term, be satisfied against others of which he had not notice : because he had not the best right to call for the legal estate (a). If he conceal his notice, as by taking a covenant that the estate is free from incumbrances, except*the term, this being against conscience, will be a further reason against preferring him. So far as this rule applies to the puisne incumbrancer, it will be observed to imply, that notice of the mesne charge at the time of taking in the prior one, is no objection ; that being, to use the words of Lord Hardwicke (Z»), the very occa- («) ^^on-et i\ Taskc, 2 Atk. 52; (v/) Hiles c. :Mooio, 15 Bcav. 181. Willoughby V. AViltuiigliby, 1 T. K. (z) Pow. Mort. 453, n. (w). 7G3; Bedford c. BaL-khousc, E([. Ca. («) Willoughby D.Willoughby, supra; Abr. G15. and sec the case before Lord Cowpor, (.r) Shepherd r. Titloy. 2 Atk. 348; cited 10 Yes. 270. AVilloughby r. Willoughby, supra; (A) Wortley y. Birkhead, 2 Yes. 573; Kose v. Watsou. 10 II. L. C. C72 ; 10 Ednuinds r. Povcy, 1 Yeni. 187. Jur., N. S. •2'Jl. GG2 TACKING OF FURTHER ADVANCES sion that sIioavs the necessity of taking it in. And he may even take it in after bill filed by the mesne incumbrancer (c). 1213. Although it is a general rule, that if the first mort- gagee lend a further siun without notice of a second mortgage, his whole money shall be paid in the first place {d), a mort- gagee who has forgiven part of the debt, and has afterwards lent a further sum of like amount, at the time of lending Avhich he had notice of an intermediate mortgage, cannot tack his further advance as a revival of the debt which was forgiven {c) ; and parol evidence is not admissible in such a case of the intention to revive the old debt. It was for many years held to be a rule that Avhere the original mortgage was expressly made a security for further advances, and a second mortgagee lent his money with notice of this provision (/), the first mortgagee might tack his further advances made subsequently to the second mortgage, though he had notice of that security ; because it was the folly of the second mortgagee, with notice, to take such a security. The decision appears to have been incorrectly reported ; and was doubted by Mr. Coventry {g), and after- wards by Lord St. Leonards (A). It was also urged in the present work, that the doctrine amounted to a perpetual curb on the mortgagor's right to incumber the equity of redemption : that it is contrary to the general principles of equity that a mortgagee should, by thus taking a security for advanced which may never be made, put a pressure on the mortgagor, by taking away his power of raising money from other persons : the first mortgagee being never bound by such a clause to make further advances at the mortgagor's pleasure. And that, after notice of a mesne incumbrance, he should do so at his own risk(z). For which, with some other reasons, the doctrine alleged to have been (c) Rooper v. Ilamson, 2 Kay & J. 52, pi. 3, E. 3. 8U. {g) Tow. Mort. 534, note (e). (d) Bedford v. Backhouse, Eq. Ca. (A) 2 Dru. & War. 431 ; 6 H. L. C. Abr. 615. 597. (e) Shepherd v. Titlcy, 2 Atk. .350. {i) 1st ed. p. 303. (/) Gordon v. Graham, 7 Vin. Abr. AND DEBTS TAKEN PENDENTE LITE. GG3 established in the case of Gordon v. Graliam was over- ruled {k). The doctrine of notice does not generally affect a puisne incumbrancer, whose security avoids the earlier deed ; as where the subsequent incumbrancer takes with notice of a prior voluntary settlement (/). 1214. As to the time of acquiring the debt proposed to be tacked. V. A prior mortgagee cannot tack a subsequent debt taken in pendente lite(m), the suit (it is presumed) being duly registered (1159) ; but a puisne incumbrancer may tack a prior security so taken in, provided it be taken in before a decree has been made to account (n) ; for after that he can do nothing to change the order of payment (o). This restriction on the prior mortgagee depends upon the rule last considered : because the suit, if registered, is notice to him of the mesne incumbrance. As to the puisne incum- brancer, Avhose right to get in the earlier security has been lield (p) not to be prejudiced by the prior submission of the first mortgagee, by his answer in the suit, to assign his security to the plaintiff on payment of his debt, we have seen that the rule as to notice is different ; and the reason why he may tack pendente lite, up to the time of decree, is, that up to that time the change of the priorities will not vary any right which mio'ht not have been varied before the commence- ment of the suit ; and a subsequent incumbrancer may have no knowledge of, and, consequently, may be unable to pro- tect himself against the mesne charge until the suit is already pending. And as the honesty of his debt is not affected by (A-) TTopkinson v. Kolt, 9 IT. L. C. iA\, afiirmiiig the decision of ]\r. K. in Rolt V. Hopkinson, 25 Beiiv. 4G1 ; 4 Jur., N. S. 919. (J) (lardincr v. Painter, Sel. Ca. in Ch. (Macnaghten), 182. (w) Morret v. Paske, 2 Atk. 53. («) March r. Lee, 1 Ch. Ca. \(\2 ; Brace v. Duchess of Marlborough, 2 P. W. 490 ; Hawkins v. Taylor, 2 Yem. 29 ; Robinson v. Davison, 1 Bro. C. C. G3 ; Peacock v. Burt, 4 L. J., N. S. Ch. 33 ; Cootc, Mort. 569 ; Bel- chier r. Butler, 1 Eden, 522 ; Bates v. Johnson, 5 Jur., N. S. 842 ; Joh. 304. («) Bristol v. Huugerford, 2 Veni. 525 ; Wortley v. Birkhead, 2 Ves. 574 ; 3 Atk. 811 ; E.\ parte Knott, 11 Ves. G19. {p) Belchicr v. Butler, 1 Eden, 522. GG4 WHAT DEBTS MAY BE TACKED. the discovery, so his right of protecting it, and the efficacy of the protection, are not prejudiced. But the inquiry into the priorities deals with them as they stand at the date of the decree {q), at Avliich, and not at any subsequent time, they are considered as fixed. If it were not so, an incumbrancer who had obtained a decree for redemp- tion, might be shut out by a prior incumbrancer, Avho, after decree, had conveyed to another subsequent to them both. A bankruptcy has not the effect of a decree so as to prevent subsequent changes of priority (r). 1215. VI. Debts which form a lien on the estate, as debts by mortgage, further charge, judgment or statute (^s), may be tacked (^) against the mortgagor (m), his sureties (.r), and all others claiming under him, including mesne incumbrancers ; and the reason given is, that the person who took the security, trusted to the hold which he already had on the land. 1216. With respect to the surety, the right to tack a further advance against him, when he pays off the mortgage, will depend upon the right of the mortgagee to make the further advance. If this right be not affected by the agree- ment with the surety the right of the latter will be subject to the mortgagor's power over the equity of redemption, and the further advance may be tacked against him(y). So if the mortgagee's right to make a further advance be affected by notice of the mesne incumbrance, which, jireventing him from tacking against that charge will also bar him from denying the surety's right to the benefit of the security on payment of the first advance alone {z) (1249). iq) Wortley v. Birkhcad, 2 Ves. o74. 2 M., T>. & Dc G. 486. (r) Ex parte Knott, 11 Ves. G19. (ia) Jackson v. Langford, 2 ¥68.662. {s) Or monies paid in respect of Otherwise if the holder of the security purchase, and for improvements. (Hip- he a trustee to sell and pay the surplus kins D. Amery, 2 Gif. 292 ; 6 Jur., N. S. to the mortgagor. (Ex parte Petit, 1047.) 1 Gl. & J. 47.) (t) Brace f. Duchess of Marlborough, (./•) Williams /■. Owen, 13 Sim. 597. 2 P. W. 494 ; Barnett v. Weston, 12 (y) Williams v. Owen, supra; Fare- Ves. 130 ; Williams v. Owen, 13 Sim. brother v. Wodehouse, 23 Beav. 18 ; 2 rj97 ; Jackson v. Langford, 2 Ves. 6G2; Jur., N. S. 1181. Baker v. Harris, 16 Ves. 397 ; Shep- {z) Drew v. Lockett, 32 Beav. 499; herd v. Titlcy, 2 Atk. 348 ; Ex parte 9 Jur., N. S. 786. Knott, 11 Ves. 609 ; Ex parte Cox, AGAIXST MOIlTGAGOll AND HIS ASSIGNEES. G6.J 1217. A judgment duly registered under 1 & 2 Vict, c. 110, s. 19, before the bankruptcy of the judgment debtor, may be tacked, notwithstanding the Bankrupt Law Consolida- tion Act, 1849 («). This might have been done during the operation of the 21 Jac. 1, c. 19, s. 9, which provided that all creditors having security by judgment, statute, recogni- zance, specialty, or other security, where no execution or extent had been taken out before the bankruptcy, should not be relieved thereon, otherwise than ratcably with the other creditors ; for the act was held to apply only to judgments which continued to be merely such at the time of the bank- ruptcy, and not to a judgment docketed before the bank- ruptcy, and in the hands of a creditor, who had a prior legal mortgage ; because such a judgment had already become incorporate Avith the mortgage, so as to make an entire mort- gage for one sum, which w^as held(Z') not to be affected by the subsequent bankruptcy. Under the act of 1 & 2 Vict, and the bankrupt law of 1849 the right to tack seems to be yet stronger. The provision in the act of 1849(c) is, that no creditor shall receive upon any security or attachment more than a rateable part of his debt, except in respect of any exe- cution or extent served and levied by seizure and sale upon, or any mortr/age of, or lien upon, any part of the bankrupt's pro})erty before the date of the fiat or filing of the petition for adjudication. Now a judgment .registered under sect. 19 of 1 & 2 Vict. c. 110, is clearly a lien within, and is therefore protected by, this exception {d). It in fact amounts, from the time of registration, to an equitable mortgage, and it seems to follow, that either as such, under the ordinary rule of tacking now under consideration, or as a judgment registered befoi*e the bankrujjtcy, and from that time incorporate Avith the prior mortgage (on the authority of Baker v. Harris), it may be tacked to that security. The judgment, it should be added, is not the less a subsistino- charo-e, because, under 1 & 2 Vict, c. 110, s. 13, the judgment creditor cannot enforce it in equity, («) V2 Si 13 Vict. c. lOr.. {(l) Ex parte Boyle. 17 Jur. 979 ; 3 {b) Baker w. Harris, 16 Ves. 397. De G., Mac & G. .")L"i. (<•) Sect. 184. M. VOL. II. XX 6G6 WHAT DEBTS MAY NOT BE TACKED till a year has expired from the entei'ing up : the charge sub- sists, the remedy only being suspended (c). And the charge may be enforced by suit at the end of a year from the entering up of the judgment, though a year have not elapsed from the registration (/ ). But it seems that there Avill be no tacking of judgments entered uj) since 23 & 24 Vict. c. 38, and 27 & 28 Vict. c. 112, respectively, until execution as required by those acts has been executed (137 — 140). 1218. A^II. But the debts, which are not a lien upon the mortgaged property, may not be tacked either against the mortgagor himself, or any person claiming under hini, except those who have become liable in respect of their possession of the mortgaged property to the payment of such debts ; and even against them it cannot be done to the prejudice of mesne incumbrancers. Therefore neither against the mortgagor {g) himself, his creditors {h), assignees for valuable consideration (z), or his devisees in trust for payment of debts {k), or persons entitled to the benefit of a charge (I) for payment of his debts, or the assignee {m) of his heir, executor, or beneficial devisee (none of whom are liable by possession of the estate to the payment of the mortgagor's simple contract debts, or bond or other specialty debts, not being a lien on the estate), will there be(n) (e) Ex parte Boyle, supra. Adams?'. Claxton, G Ves. 225; Cole- (/) Derbyshire and Staffordshire man ^. Winch, 1 P. Wms. 775 ; Hamer- Railway Company v. Bainbrigge, 15 ton v. Rogers, 1 Ves. jun. 513. Beav. 146. (i) Troughton v. Troughton, 1 Ves. (y) Challis v. Casborn, Pre. Ch.407; 8G ; Jackson v. Langford, 2 Ves. 662; sec 2 Hare, 339 ; Archer v. Snatt, 2 Adams v. Claxton, supra. Str. 1107; Elvy v. Norwood, 5 De G. {k) Heams v. Bance, 3 Atk. 630; & S. 243 ; Demainbray v. Metcalfe, 2 Irby v. Irby, 22 Beav. 217. Vem. 690, seems contra, and even goes (l) Price i;. Fastnedge, Ambl. 685. to the extent that a derivative jiawnce {m) Coleman ■??. Winch, supra; Van- of chattels personal may hold the pledge derzee v. Willis, 3 Bro. C. C. 23 ; Bayly as against the original pledgor until v. Robson, 2 Eq. Ca. Abr. 594 ; Pre. payment, not only of the amount due Ch. 89. to the derivative pawnee, but also of (/i) Notwithstanding Baxter r>. Man- monies lent by him to the original ning, 1 Vcm. 244 ; Halliley v. Kirt- pawncc on notes of hand. But the land, 2 Hep. in Ch. 162 ; and other decision is queried by the reporter, and early cases, in which bond debts were seems to be of no authority. allowed to he tacked against the mort- (//) Ileams v. Bance, 3 Atk. 630; gagor. AGAINST MORTGAGOR AND HIS ASSIGNEES. GG7 any right to tack such debts. This rule prevents a surety from tacking against the puisne mortgagee the costs of de- fending an action by the mortgagee whose debt the surety has discharged, such costs being only a simple contract debt (o). 1219. Against the heir Q;) and beneficial devisee (^), however, who are liable in respect of their possession of the mortgaged real estate, descending upon or devised to them, to discharge the bond and other specialty debts of the mort- gagor, such debts may be tacked ; and the personal repre- sentative of the mortgagor, being in like manner liable in respect of his possession of the mortgagor's chattels to his bond and other specialty (/•) and simple contract («) debts, such debts may be tacked against him, to securities on the testator's chattels. And this is confessedly not founded {t) upon any principle of equity, but is merely to avoid circuity of action, that the creditor may not be driven to enforce, by separate proceedings, claims to which the operation of law or the act of the mortgagor have rendered the same person liable. (1657,1676.) But the tacking of debts on the principle of avoiding cir- cuity is not permitted to be done to the injury of mesne incum- brancers, against whom the creditor has no equity. There is, therefore, no tacking as against them in such cases, whether they claim by mortgage, judgment or statute {u). 1220. This right to tack the specialty debt of the mort- gagor, against the heir or beneficial devisee, enables the raort- (<>) South V. Bloxam, 11 Jur., N. S. (s) Coleman r. Winch, 1 P. Wms. 319; 2 Ilcm. & Mil. 457. 775 ; 2 Dm. & War. 190 ; Ecclcs v. {2>) Margrave t>. Le Hooke, 2 Vern. Tliawill, Pre. Ch. 18 ; RdU'c v. Chester, 207 ; Morret v. Paske, 2 Atk. 5;3 ; 20 Beav. GIO. Jacksou r. Langford, 2 Vcs. G62 ; Jones (f) Lowthian r. Ilasel, 3 Pro. C. C. V. Smith, 2 Vos. jun. 372; Elvy v. 1G2 ; Jone.s f. Smith, 2 Ves. jun. 372 ; Norwood, 16 Jur. 493 ; 5 De G. & S. Ileams v. Baiicc, 3 Atk. 630; MoiTct v. 240. Paske, supra. (q) Heams r. Bance, 3 Atk. 630; {u) ]\rorret r. Paske, 2 Atk. 52; Coleman v. Winch, 1 P. Wms. 775 ; Po^ris i,'. Corl.et, 3 Atk. 556 ; Anon., see Du Vigier v. Lee, 2 Hare, 340. 2 Ves. 662 ; Lowthian v. Hasel, 3 Bro. (r) Anon., 2 Veni. 17G. C. C. 162. X X 2 668 PRACTICAL EFFECT OF gagee, or those who claim under him in a redemption or fore- closure suit, to tack the arrears of interest on the mortgage, either where the interest is secured by a collateral bond (x) or under the ordinary covenant (binding the heirs) for payment of it in the mortgage deed {y) ; by which means the mortgagee may obtain payment of arrears of interest beyond the six years limited by 3 & 4 Will. 4, c, 27, s. 42, -without resorting to an action on the specialty (r), under 3 & 4 Will. 4, c. 42, s. 3. And this, it seems, may be done, though no case for tacking be made on the pleadings (a). 1221. Where real estate was the subject of the mortgage, the simple contract debts of the mortgagor could not formerly be tacked against the heir or beneficial devisee of the mort- gagor. But real estate having been made, by 3 & 4 Will. 4, c. 104, assets in the hands of the heir or devisee of the debtor, for the payment as well of simple contract as of specialty debts, the mortgagee may now tack subsequent simple contract debts against those persons by reason of their liability in respect of their possession of the estate to pay such debts ; but not against specialty creditors (Z*). 1222. The following is a concise view of the practical effect of the rules which we have been considering. A prior legal mortgagee (c) being without notice of a mesne incumbrance {d), and having acquired at any time before a lis pendens affecting the securities and duly registered (e), a subsequent charge on the estate, unless, it seems (but query) such subsequent charge being a lien only, and not for a debt advanced on the credit of the property, were purchased by the prior mortgagee without the consent of the mortgagor {f\ Or a puisne mortgagee or person who has lent his money on the credit of the property, including, perhaps, a prior judgment (ar) Du Vigier v. Lee, 2 Hare, 32G ; {,h) Eolfe v. Chester, 20 Beav. GIO ; see Hunter v. Nockolds, 1 Mac. & G. Thomas v. Thomas, 22 Beav. 341. 640, 650. (6) Ilule I. (1198) (y) Elvy V. Norwood, 16 Jur. 493, {d) Rule IV. (1212) and 5 De G. & S. 240. (e) Rule V. (1214 ) (z) Hunter v. Nockolds, supra. (/) 1209- (a) Elvy V. Norwood, supra. RULES CONCERNING TACKING. 6G9 creditor under the new \a\\{f/), and under tlic olil law a prior judgment creditor with a subsequent mortgage (A), and -who, by purchase or otherwise, has obtained a prior legal interest (i) at any time before a decree to account in a suit affecting the priorities of incumbrancers on the estate {k), and without having had notice (Z) of prior incumbrances at the time of lending on his original security : And (whether the legal interest were originally or subse- quently acquired) holding both securities in the same right (m) — may tack — Debts by mortgage, further charge, >v « judgment («), or statute (all these > '5 being a lien on the estate (o) ), y * Bond and other specialty debts of the mortgagor, in the case of a mortgage of realty, whether free- hold or copyhold (<7), and also by virtue of 3 & 4 Will. 4, c. 104, his simple contract debts (?•), Bond and other specialty and simple contract debts of the mort . ._ gagor in a mortgage of person- j ti alty(s), -^ But they may not tack — t- S The simple contract bond or "other specialty debts of the mortgagor (being no lien on the estate (s) ), ri < tc The mortgagor, and all who claim under him, including mesne incum- brancers (r>). The heir and beneficial devisee of the mortgagor, where there are no mesne incumbrancers (s). The personal representative of the mortgagor, where there are no mesne incumbrancers (s). The mortgagor, his creditors, assignees for valuable consideration, devisees in trust or persons entitled to a charge for payment of his debts, or the assignee of his heir, executor or beneficial devisee («). {g) Rule II. (1208 ) (/') 1209. (/) Rule I. (1198) (k) Rule V. (1214.) (Z) Rule IV. (1212) (m) Rule III. (1211) (7i) But see Rule II. (1208 ) (0) Rule VI. (1215) (q) Rule VII. (1218) ('•) 1221. CO Rule Vn. (1218) 670 EQUITABLE PRIORITY — SALVAGE. Chapter IX. Tart 2.— Of Equitable Priority. 1223. Ofthr General Bides of Equltahle Prinrifi/. 1239. Of the Il'iijlit to consolidate several Securities. Of the General Rules of E(jnitahle Priority. 1223. The equitable, like the legal mortgagee, is entitled, as against the mort2;a2:or and all claiming under him, who have not or for any reason are not allowed to retain the full benefit of the legal estate, to add to his original debt subse- quent advances or liabilities made or incurred upon the security or credit of the estate, without notice of any mesne charge (a) (1213). But when there are several incumbrancers whose equities are not disturbed by notice or otherwise, their rights generally take effect in order of date, according to the maxim Qui jirior est tempore potior est jure {Ji). 1 224. A notable exception to this general rule is, however, made in favour of advances, by means of which the whole of the incumbered property is saved from loss or destruction ; and which, upon a plain principle of equity, are payable in priority to all other charges of earlier date, and among them- selves have precedence according to the inverse order of their respective dates. The most familiar application of this prin- ciple is in cases of bottomry, for the validity of which kind of security it is necessary that the advance should be made for the preservation or salvage of the ship, or the prosecution of the voyage (109, 1268). 1225. The same principle is applied in other cases to secure the repayment of money advanced for the preservation of in- cumbered property from ruin or forfeiture (203), and it entitles a solicitor, who brings a cause to a conclusion, to priority for his costs, over one who previously conducted, but for want of means or for other reasons has abandoned it: and it seems also (ffl) Wormald v. M.<iitland, ZT-> L. J., {h) Bristol v. Hutifjci-ford, 2 Vem. Ch. 69. See St. John r. Ilolford, 1 525 ; Beckett v. Cordley, 1 Bro. C. C. Ch. Ca. 97, relating to the liabilities of 353 ; Rice v. Rice, 2 Drew. 73. a suretv. LEGAL TITLE IN AID OF KQII IV. 071 over the costs of a former solicitor wlio has been discharged (c) (223}. The principle is also adopted in cases of payment of head rent, in order to prevent eviction by a superior landlord; and in this form it is of common occurrence in Ireland. 1226. It seems that this equity will not operate in favour of a stranger, by whom a voluntary and officious payment is made (d), but any creditor, sub-tenant, or other person inte- rested in the preservation of the security (e), or, it is presumed, any one who lends at the instance of an interested person, will be entitled to the benefit of it; and if the lender be in receipt of the rents of the estate, he must api)ly them in redemption of this charge in priority to his own security (/). 1227. The principle is not applied in bankruptcy, in favour of a mortgagee who pays rent which is due, or for which the landlord has distrained, so as to enable the mortgagee to stand in the landlord's place, and be preferred to other creditors, unless he have first applied to the court that he may have such priority in consideration of his paying the rent in arrear (^7). 1228. One of several equitable incumbrancers may gain priority over the others by getting in a legal title in aid of his equity (1199), for the court will not take from him the fruit of his diligence (h) ; and if an equitable mortgagee has ob- tained possession of the deeds fairly and without notice, when he advanced his money (1631), he will not be deprived of them, even in favour of a mortgagee in possession of the legal estate Avho has been declared to be entitled to priority ; but may use them as he can in obtaining payment of his debt (i). But an incumbrancer can gain no advantage by taking a prior interest with notice of an agreement by the mortgagor not to dispose of that interest to the prejudice of the first mortgagee ; (e) Cormack w. Beislcy, 3 Dc G. & (.v) Anon., 1 Atk. 102; Ex parte J. 157. ' Cocks, 3 D. & C. 8. (d) Fethcrstone r. Mitchell, 11 Ir. (A) Banictt r. AA^cston, 12 Yes. 130 ; Eq. R. 35. Bates r. Brothers, 17 Jur. 1174. (e) M.; Locke r. Evans, 11 Ir. Eq. (() Wahvyn i'. Ix-e, 9 Ves. 24; R. 52 ; Hill v. Browne, 6 Id. 403 ; Dru. Joyce r. De Moleyns, 2 J. & L. 374 ; 426. Fagg V. James, 8 L. T., N. S. 5. See (/) Sloane v. JIahon, 1 Dr. & Wal. E.\ parte Cawthome, 1 Gl. & J. 240. 189. 072 NO PRIOEITY IN EQUITY as -where (k) a tenant for life mortgaged his life estate and covenanted not to exercise a power to raise portions : the mortgagees retained their priority over appointees of the por- tions who had notice of the agreement. And an equitable mortgagee, though originally without notice, can gain no priority by getting in a legal interest as against cestuis que trust of the morto;a2for, after notice of their rights, for he takes subject to such rights, and becomes a trustee himself (/) : as a person who takes a legal mortgage, with notice actual or con- structive of an infirmity in the title, is subject to the equities existing against the title ; and if the latter be set aside, the mortgage fp,lls with it(7n). On the same principle an equitable mortgagee, with notice of a former morto;ao;e, but without notice of a trust charo;e prior thereto, of which the former mortgagee had notice, takes subject to the charge (n). The claim of the equitable mortgagee, against the mort- gagor, Avill in like manner prevail (<?) against the solicitor of the latter, into whose hands the deeds come after the equitable right has arisen ; and will prevent the solicitor from acquiring as against him any lien on the deeds for his costs after that period. Nor will the lien, under such circumstances, arise where the costs have been partly incurred for the benefit of the equitable mortgagee, unless the solicitor were actually employed by him ; the solicitor's lieu being a right arising out of the relation between employer and employed (/») (274). 1229, The rule under which an incumbrancer without notice, having the legal estate, is protected, though he claim through one who had notice (1206), is also inapplicable where the interests are equitable : an equitable incumbrancer being unable, by concealing his notice from a person, who claims under him, to make his security more extensive, or give to his (70 Ilurst V. Hurst, IC, Eeav. .372. Beav. 235. (/) Saunders V. Dehew, 2 Vera. 271; (o) Molcsworth v. Robins, 2 Jo. & Allen V. Knight, 5 Hare, 272. Lat. 358 ; Pelly v. Wathen, 1 De G., (m) Cookson v. Lee, 23 L. J., Ch., Mac. & G., 10 ; Smith v. Chichester, N. S. 473. 2 Dru. & War. 393 ; Blundcn r. Desart, (n) Earl Pomfret v. Windsor, Belt's Id. 405. Sup. Ves. sen. 412; Eland v. Eland, 1 {/)) Pelly r. Wathen, supra. AVIlKin: NOTICE; OR IXFimi TITLK. 673 assignee a better right than that Avhich he himself possesses. Therefore, where there were three successive mortgages to A., B. and C, and C. liad notice of B.'s mortgage, and registered before him, and then assigned to I)., who had no notice of B.'s mortgage, D. was held not to have priority over B. {q). 1230. This rule applies to an equitable mortgage by a trustee of the property of his beneficiary. The mortgagee, claiming under a breach of trust, cannot set up his right against that of the beneficiary, although the latter, after in- trusting his propei'ty to the trustee, have made no inquiry as to the manner in which he has disposed of it (r). 1231. In fact where there is an infirmity in the title of a mortgagor, he can convey no equitable interest to his mort- gagee (5); and on the ground that a right cannot generally be established in a mortgagee which did not exist in the person under whom he claims, a creditor who advanced money to clear oif rent in arrear, in order to prevent ejectment against the devisee of a leasehold for lives, and took a morto-ajie to secure them, Avas not allowed priority over judgment creditors of the devisor {t). 1232. A puisne mortgagee cannot get any priority over an earlier equitable incumbrancer, of whose security he has notice, by the aid of the first mortgagee, the latter upon payment being only a trustee for the mortgagor, and unable to charge the estate. Thus where after successive mort2:a2;es to A. and B., a third mortgage was made to C, in which A. joined, and covenanted that after payment of his debt the estate should stand charo-ed with C.'s mortfraoe ; it was never- theless held, that C. should follow in his regular order after B. (u). Nor will any act of the first incumbrancer with the legal estate, amounting to an exercise of his rights unfair or injurious to succeeding incumbrancers, be allowed to preju- {q) Ford v. White, 16 Bcav. 120; 7 De G., M. & G. 634; Parker r. Clarke, Tothill, 284 ; Duke's Char. Us. 639. 30 Bcav. 54 ; 7 Jur., N. S. 1267. (r) Cory r. Eyre, 1 Dc G., J. & S. (t) Angell v. Brian, 2 Jo. & Lat. 149; Baillie v. M'Kewan, 35 Bcav. 7(53; and see Pinkett v. Wright, 2 177. Hare, 120 ; 12 CI. & Fin. 764; Chick (s) Robinson f. Briggs, 1 Sm. & Giff. v. Holland. 18 Jur. 1007 ; 19 Bcav. 2i;2. 188 ; Collinson v. Lister, 20 Bcav. 356 ; (m) Brotherton t;. Hatt, 2 Vcni. .■>74. 67-1 PRIORITY IN CASE OF SALE dice the rights of the latter. Thus (.r) if the first mortgagee peniiit the mortgagor to receive the profits without requiring interest, that interest shall not affect the land as ag-ainst the second mortgagee, so as to keep him out longer than if it had been duly paid. And if the first mortgagee sell the estate, the produce shall go in discharge of his debt, whether it be received by him or by the mortgagor. 1233, The produce of the sale of an estate is bound by all the same equities and claims which bound the estate itseli'. Therefore (?/), if the mortgagor of an estate, having a life interest tn the mortgage money, assign it, and afterwards the estate be sold under proceedings against him in bankruptcy, but the proceeds are insufficient to discharge the mortgage, the morto-aQ:ee has a rio;ht, as against the assignee of the life interest in the debt, to retain the income of the produce of the sale until the mortgage be satisfied; for before the sale he had a right to retain the estate until payment of the whole debt. So, if the mortgagee, having notice of a subsequent mortgage, join with the mortgagor in selling to a stranger, the money received by either for the purchase shall sink so much of the prior debt for the benefit of the puisne mort- gagee {z\ And if a puisne incumbrancer purchase the estate, not merely contracting for the equity of redemption, but for the estate free from incumbrances, he must apply the purchase- money according to the priorities in time of the several incumbrancers, and has no right to satisfy his own debt first, and then to come as a specialty creditor against the mortgagor in respect of the deficiency of the purchase-money to discharge the prior incumbrances {a). 1234. Creditors under a decree for sale in an Irish fore- closure suit, only stand (Ji), as to balances remaining due to them after the sale of the estate, in the same rank with cre- (or) Bentham v. Ilaincourt, 1 Eq. («) Greenwood v. Taylor, 14 Sim. Ca. Abr. 320. 403 ; S. C. nom. A. G. v. Cox, 3 H. L. (y) Smith v. Smith, 1 Y. & C. 338 ; C. 240. see 1 Drew. 616. {h) Wilson v. Lady Dunsany, 18 Jur. (z) Bentham v. Haincourt, 1 Eq. 762 ; 18 Beav. 293. Ca. Abr. 320. WUKKE SECURITIES FRAII)! LINT. 675 flitors by bond and covenant. It was stated in the adminis- tration suit in which this decision occurred, that the Irisli decree for sale is not a decree lnr payment of money, any more than the English decree of foreclosui-e (669), and is not allowed to be registered as a personal decree for payment. It can therefore give no priority against the other assets of the mortgagor over creditors by bond or covenant. 1235. The rule of payment according to time also applies, where the securities have been effected by fraud ; provided, that among the incumbrancers themselves the equities are equal : so that where the mortgagor effected two securities by depositing part of the deeds with one person and part with another, the first had the preference fc). And where a sum of money having been paid by order of the Court of Chancery to a person, to be applied by him in part in the purchase of a house and furniture, which when purchased were to be con- veyed to trustees, he bought a house, of which he took a conveyance to himself in fee, and afterwards deposited the title deeds with his bankers as a security for advances : it Avas held, that(c?) according to the principles of the court, the prior trust, which was fastened on the property at the moment of the purchase, must prevail, whether the bankers had or had not (though it was assumed they had not) notice of the settlement. And so, if a trustee in part beneficially inte- rested in the mortgage debt make an equitable mortgage or an equitable transfer as security for an advance to himself, the trust will prevail ; and the possession of the deeds, thus acquired by a breach of trust, will not assist the subsequent mortgagee {e). In another case (/), in whicli A., being entitled" to a le- gacy charged on real estates, joined with the owner of the estates in assigning the fund to trustees, who were to hold it as a charge upon the estates, and afterwards released the (c) Roberts r. Croft, 24 Beav. 223 ; 1 De G., J. & S. 149 : and see Welsh- 2 De G. & J. 1 ; 27 L. J., Ch. 220. man v. Coventry Bank, 8 W. R. 720. (rf) Manningford r. Tolcman, 1 Col. where it was held that there was notice 670. of the trust. (e) Stackhonse v. Jersey, 1 J. & II. { /•) Greenwood c. Churchill, 6 Bear. 721 ; 7 Jur., N. S. 359 ; Corj- v. Eyre, 314. 676 -WHERE SECURITIES ARE FRAUDULENT fund "without the concurrence of the trustees, and then (having with another become trustee in fee of the estates themselves) mortgaged them, first in fee, and again to a judg- ment creditor, Avho, in consideration of the mortgage, ac- knowledged satisfaction on her judgment : it was held, that the latter had priority over the trustees of the fund. The riffht to the fund was to be made out, it was said, throuo;h A. He had released it, and with his co-trustee had contracted to give the judgment creditor the benefit of a charge, instead of her judgment, upon which she entered up satisfaction on the faith of the contract and of the estate supposed to be vested in A. and his co-trustee. And though the release executed by A. was fraudulent as against his trustees, yet while it remained in force A. could not for them set up a title prior to a bona fide claimant on the equity of redemption of the estate, which was set free by that very release. It would be first necessary to establish an equity to set aside the release. It is conceived that in this case the trustees might have preserved their priority, by putting notice of their settlement upon the title deeds. It is true, that as they were probably in the hands of the first mort2;ao;ee, the second mortg-agee might even then have failed to get notice of it ; but, unless the case were affected by some such neglect or want of equity, the decision seems hardly consistent with the prin- ciples commonly applied. It is difficult to see in the fact that A. had released the fund, a reason for giving priority to the subsequent mortgagee. It no doubt induced her to give up her judgment, but the trustees were not therefore the less innocent, were equally defrauded, and were earlier in time (1267). The right of trustees to be indemnified out of the trust estate in respect of the liabilities incurred in the exercise of their office is to be preferred to any charge created by the cestui que trust (^). 1236. In giving to equitable incumbrancers, with equal (ff) Re Exhall Coal Comp.,3.j Bcav. India estatei?, see per Turner, L, J., 449. And as to the paramount nature Daniel v. Trotinan, 1 Moo. P. C, N. S. of the rights of consignees of West 123. on ItlOIITS NOT COXSIXTTIVK. G77 equities, priority according to time, the coui't also considers, that as between the mortoao-oi- and the inortirau'ce, the mort- gage afFeets the entire interest of the former, saving oidy the rights of prior incumbrancers. A mortgagor, after making an equitable mortgage, retains no equitable interest prior io that mortgage, and ciin therefore convey none to a subse- quent mortgagee. And upon this principle, -where (/<) A. mortgaged to B. the equity of redemption of real estate, reciting in the mortgage that a certain deed was deposited Avith C. as security for a debt charged on the same estate, but ■which was false, and A. did afterwards deposit the deed with C. as security for monies partly due before B.'s mortgage, it Avas held that C. had no priority over B. If, at the date of B.'s mortgage, there had been, as Avas recited, a security to C, Avhich A. had afterAvards paid oiY, or Avhich had been otherAvise avoided, B. Avould have had the benefit of the pay- ment or aA'oidance. The Avhole of A.'s interest Avas in fact pledged to B., and he had nothing left in priority to that interest Avhich he could transfer to C. 1237. It sometimes happens that an incumbrancer has priority over one of earlier date than himself, but not over another Avho is postponed to that incumbrancer, as Avhere betAveen securities dated in the order A. B. C, B. has prio- rity over A. and C. over B. ; but as betAveen A. and C, A. has priority. Here if the fund available be not more than B.'s security Avill exhaust, it Avill be paid first to C, to the extent of the debt for Avhich he has priority over B., and the balance to B. But it seems that if the fund be more than enough for B. all further sums received by C Avill be for the benefit of A. (/). In a case in Ireland, Avhere, by force of registration, a deed gained priority over one of earlier date, it Avas held that the former could not shake off intermediate judgments of eai'lier date than itself, but carried them up, as Avas said, " upon its back" (A). (/() Frazcr v. Junes, o llarc, 481 ; (/) BenlKUii i. Kcane, 1 J. & II. on appeal, 17 L. J., Ch. Soli ; 12 Jur. G.H"). 443 ; see Hughes i'. Williams, 1 Dc G., (/c) Spiiirow v. Cooper, 1 Jo. 7_'. Mac. & G. 690. GTS RIGHT TO CONSOLIDATE 1238. The ({uestiou of piiurlty between the impald vendor of real estate, in respect of his lien, and persons who claim under the purchaser, depends, like other questions of equi- table priority, upon the circumstances of the case and the conduct of the parties, there being no esjoecial equity at- tached to persons filling either of those characters (z) ; and as well between such persons as other equitable incumbrancers, an innocent incumbrancer, though later in time, will prevail over one who has less claim to equitable consideration. The possession of the title deeds is also of great importance in detemiining the priorities both of legal and equitable in- cumbrancers; and in securities of the latter kind it may alone be a sufficient test of right Avhere other equities between the incumbrancers are equal. The redelivery of the deeds to the mortgagor by a mortgagee, who has once acquired possession of them, amounts, as regards persons Avho have subsequently lent their money on the faith of the mortgagor's possession as owner, to a discharge />ro tanto of the security ; and it has been thought convenient to consider under that head the authorities which relate both to the ori«;inal takiuQ- or nes;lect to take the deeds, and to the return of them to tbe mortgagor or his assignee, without receiving the sum which is due upon the security (1531). ^■^^■^ ^>>^^:^.,.^0f tlie Right to hold several Securities until Redemption of all. 1239. If the owner of different estates mort^cag^e them to one person, separately, for distinct debts, or successively, to secure the same debt, or the same debt with further advances, the mortgagee may insist that one security shall not be re- deemed alone (_/) ; upon the principle that redemption being an equitable right, the person who redeems must on his part do equity towards the mortgagee, and redeem him entirely (Ji) — (i) Rice V. Rice, 2 Drew. 73. Sec Smith, 2 Ves. jun. 37G ; Collet v. Mun- (iarrard v. Frankel, 30 Beav. 44i'j. den, cited there. (,;■) Shuttleworth v. Laycock, 1 Vem. (Ji) Willie v. Lugg, 2 Eden, 78. 24.5 ; Pope V. Onslow, 2 Id. 28G ; Jone.s v. SECURITIES IN EQI ITY. GT'J not taking one of his securities, and leaving him exposed to the risk of deficiency as to the other. This is a doctrine wliich is acted upon by Courts of Law, in applications under the statute of (leo. II. (722; to stay proceedings, on payment of principal, interest and costs (/); and it appears to be recognized in other proceedings at law(/n). It depends upon a principle altogether diflerent from that upon which the doctrine of tacking, properly so called, is founded : althouij^h the circumstance, that the union of two or more securities is common to both, has caused it sometimes to be treated as a branch of that doctrine. In tacking, the right is to throw several debts, one or more of which are either lent upon inferior securities on the same estate, or are mere specialty debts, upon the protection of the legal estate, the do- minion over which is the very foundation of the right (11 98); but the right which is now to be considered depends upon the equitable principle that he who seeks the aid of the court must do equity himself; and it enables a mortgagee to unite, and to hold united, securities on different estates until payment of the debts charged on both of them — to make one estate liable for a debt specifically charged on another. To give a right to tack, one debt only needs to have been lent on the credit of the estate (1208); it is sufficient that the other be merely a lien upon it, and where the doctrine of circuity applies, even tliat is unnecessary (1219) ; but the essence of the other doc- trine is, that there shall be several estates, each specifically liable for a particular debt. To the one, notice at the tune of the advance is fatal (1212) ; in the other, the right belongs to a mortcrao-ee, who has taken several securities from the same CO ' mortgagor, and who, therefore, of necessity, has notice of the first mortfran;e, when he takes the second. 1240. The morto;ao;ce has a right to the benefit of this rule, though the securities be made to trustees, and even where they are made to different sets of trustees (n); and if the mort- fifao-es be made to different mortgagees, one of whom takes an assio-nment from the other of his security, the securities may {I) Roe d. Kaye v. Soley, 2 W. Bl. 587. 726. (w) Tassell v. Smith, 2 Dc G. & J- (w) Sec Marcon v. Bloxam, 11 Exch. 7l;5 ; 4 Jiir., N. S. 1000. 680 RIGHT TO COXSOLIDATE be united, wlietber the assignee had an interest which entitled him to require an assignment (as where he was surety for that debt (o) ), or Avhether he had no such interest (p) ; and although upon taking the assignment he had notice of a subsequent incumbrance, the owner of which would be affected by the union of the prior securities {q). 1241. Nor is the rlglit of the mortgagee affected by reason of his selling one of the estates under his poAver (r); or by the bankruptcy of the mortgagor, though the assignment be taken after the bankruptcy ; or by any other change in the ownership of the equity of redemption, either by descent, sale, mortgage or other devolution of the estates {s)\ but he may hold both, even against the purchaser or mortgagee of the equity of redemption of one of them without notice of the other mortgage, until pay- ment of all that is due on both {t) ; and though the security of such a puisne mortgagee be earlier in date, but postponed from another consideration (i^). And the purchaser or other assignee may then hold until he be redeemed, both as to his own security and what he paid when he redeemed the original mortgagee (:r). So that a jow/sne mortgagee has thus the power of throwing his debt upon an estate, which the mortgagor never made subject to it. And where three estates. A., B. and C, were mortgaged (y), and then A. was sold, and the purchaser paid off the mortgage and got the legal estate ; it was held, that he might comipel puisnt mortgagees of B. and C, having also a security on another estate, D., to pay him all that he had paid to the first mortgagee, taking only a con- veyance of B. and C, or to be foreclosed as to those estates. (o) Tweedale v. Tweedale, 23 Beav. 341. (;?) Vint V. Pad-ctt, 1 Gif?. 44G; 2 De G. & J. 611; 4 Jur., N. S. 254, 1122. (q) Vint V. Pad;,'ett, supra. (r) Selby v. roinfrct, 1 J. cSj H. ?,?,C, ; 7 Jur., N. S. 83G, 860. (») Ex parte Alsager, 2 M., D. & De G. 328 ; Selby v. Pom fret, supra ; Mar- grave V. Lc Ilooke, 2 Vern. 207 ; Ex parte Carter, Ambl. 733 ; Ireson v. Denn, 2 Cox, Ch. Ca. 425; Tribourg v. Pom f rot, cited Ambl. 733 ; Titley v. Davies, 2 Y. & C. C. C. 399 ; Palk "v. Lord Clinton, 12 Ves. 48 ; Cator v. Charlton, Collet V. Munden, cited 2 Ves. jun. 377, and Lord Alvanley's judgment there. {f) Ireson v. Denn, supi'a; Neve v. Penncll, 2 H. & M. 170; 33 L. J., Ch. 19. (?/) Neve V. Pennell, supra. (ar) Titley v. Davies, 2 Y. & C. C. C. 399 ; Bovey v. Skipwith, 1 Ch. Ca. 201. (y) Sober v. Kemp, G Hare, 155. SECURITIES IX EQI'ITV. G8 1 1242. But as to the right of the assignee to hold both estates, where, subsequently to the mortgage of both, one of them was sold, and the other mortgaged, Lord Ilardwicke seems to have thought (r), that in such a case the equitable mort- gagee may throw his debt upon the purchased estate, by re- demption of the original mortgage, only when the sale is sub- sequent to, and not when it precedes, his mortgage ; because, when the sale comes first, the mortgagor has no longer a right of redemption in him as to the estate sold, and can therefore convey none to the mortgagee. But he said, it would be dif- ferent, if that estate had only been mortgaged, for then the mortgagor could have passed his right of redemption. It is not, however, from the mortgagor that the assignee of the equity of redemption acquires the right to hold both estates ; nor does the mortgagor in fact, upon making a second mort- gage of one estate, pass his equity of redemption in the other; all that he passes, in the other estate, is a possibility, enabling ^ ^ the puisne mortgagee to get at that estate, through the right vtrcce-f /~ ^t, which the first mortgagee has over it — by redeeming him, and ^^7 getting the benefit of his securities. Now the prior mort- gagee may clearly hold against the subsequent purchaser of the equity of redemption ; for his security is prior to the sale ; if then the assignee steps into his place, and derives his right through him (and he has no other equity), it does not appear why he may not hold against a purchaser as well as against a mortgagee (a). But it is not clear that the point was raised. 1243, It seems, however, that the redeeming assignee may be deprived of his right to hold both securities, or more pro- perly he may be prevented from acquiring this right, either by the mortgagor or the original mortfjafree (r) : the morto-ao-or may do this by redeeming the first mortgagee himself; and the first mortgagee by parting with one of his securities before he is redeemed ; for the estate, being then no longer liable to his debt, the puisnt mortgagee who redeems can acquire no title to it. (;) Titlev v. Davies, supra. See (a) And see Beevor c. Luck, L. R., morg. note from Scrjt. Hill's MS. 4 Eq. 537. M. VOL. II. y y 682 RICnT TO CONSOLIDATE 1244. A morto-ao-ee is entitled to be redeemed as to both securities, whether they unite in him before or after the equities of redemption have been united in the hands of a purchaser or puisne moi'tgagee ; who take subject to the equities which sub- sisted against the mortgagor (e). It has been held to be other- ■wise where the securities united in the mortgagee for the first time after the separation of the equities of redemption of the several estates, though the persons in whom they were vested, being devisees of the former owner, were only volunteers. But it was intunated that there might have been some ground for the latter claim, if the mortgagee had become possessed of both the securities whilst the equities were yet in the hands of the same owner, though he had acquired them at different times {d). The distinction taken in this case is, however, open to much doubt, although it was some time after recognized by the Court of Exchequer (e). It proceeded upon the principle, now overruled, that it was the jjossession by the mortgagee of the legal estate in the two properties which entitled him to consolidate (1239, 1248). 1245. Where the whole estate was morto;ag;ed to A. in 1821, to secure 6,000/., the equity of redemption being as to one- third in X., and as to two-thirds in Y. ; and then in 1831, X.'s third was conveyed to B. to secure 12,000/. ; and in 1833, Y.'s two-thirds to C. to secure 2,106/. ; and in 1838, the mort- gages to A. and C. were assigned to D. : the case was treated as if the securities to B. and C were charges upon different estates, and D., the assignee, was not allowed to retain the securities to A. and C. as against B., until payment by the latter of all that was due on those securities. The decree {f\ therefore, was for redemption by B., the second mortgagee of one-third, of that all was due on the security of 1821, which affected the Avhole estate, and, in default, foreclosure. Then for an account of subsequent interest due to D. in respect of (c) Vint V. Padgett, 1 Giff. 446 ; 2 (e) Marcon v. Bloxam, 11 Exch. De G. & J. 611 ; 4 Jur., N. S. 254, 587. 1122 ; Beevor v. Luck, L. R., 4 Eq. (/) Thomeycroft v. Crockett, 2 H. 537. of L. C. 239. {d) White V. Hillacre, 3 Y. & C. 597. SECURITIES IN EQUITY. G83 the morto-ao-e to C. of the two-thirds (183.'i), with a dircctiun to distinguish the amount due on the niortj^age of 1821, and to divide the same into three parts; and for redemption on payment by X. of one-third of the amount due on the last- mentioned mortgage, and by Y. of the other two-thirds thereof, and also of the sum due on the mortgage to C. of 1833 ; in default of payment, X. and Y. being severally foreclosed. In case of redemption by B., an account was directed of the amount due on his security (1831), and subsequent interest on what he should pay D. ; and redemption by D., on payment of all found due to B., and in default foreclosure. Provision Avas then made for redemption by X. and Y. respectively, and in default for foreclosure of them respec- tively, in similar terms mutatis mutandis, having regard to their respective shares. In case D. should redeem B., an account of the sum due to D. in respect of C.'s security (1833), and subsequent interest on what he should pay B. ; and re- demption directed by X. and Y., and, in default, foreclosure of them respectively in similar terms mutatis mutandis, having regard to their respective shares in the mortgaged premises. In this case B., by virtue of the rule, that a mortgagee ought not to be redeemed in part (1016), was called upon to redeem the whole security of 1821, which afiected all the estate ; but as to the right of redemption given to X. and Y., it was dif- ferent, because their rights arose out of mortgages of distinct shares of the estate, efiected after the splitting of the equity of redemption. 1 246. Nor is the mortgagee with several securities entitled to the discharge of both debts, against a person who happens to be engaged {g) with another in one mortgage only, though his co-mortgagor may have pledged another estate to the same mortirao-ee. As where a mortgagee of one estate takes a second mortgage thereon as further security for an advance to another person, whose estate is also mortgaged to secure the same debt (//). The estate of the latter is here only liable for the sum advanced to liini -. but the estate of the first mortgagor (<7) 2 Ves. jun. 376. (//) Aldwoitb V. Robinson, 2 Beav. 287. Y Y 2 684 RIGHT TO CONSOLIDATE is liable for both debts, lu like maimer, if two join in mort- gaging their several estates to the same mortgagee, to secure a sum advanced to them both, or to one of them only, and then one mortgages to the same mortgagee, for his OAvn debt, pro- perty, part of which was included in the former mortgage {i, ; he who is not mixed up with the last security shall not have the onus of redeeming it. And so Avhere difl'erent interests in the same estate are mortgaged, and one of the owners after- wards mortgages his interest alone. As where a doAvress and heir-at-law mortgaged the estate, which had descended subject to a mortgage, and then the heir mortgaged again ; the dow- ress was held entitled to her dower (k), subject only to payment of the ancestor's mortgage, and of that in which she had herself joined, Avith the interest and so much of the costs of suit as related to those sums. In all which instances it will be ob- served, that, though the securities were all in one hand, the equities of redemption in the estates, or in different interests in the same estate, were vested in divers owners. 1247. Where a tenant for life had charged the estate (/) in exercise of a power reserved to him, and had mortgaged the charge with other property to a second mortgagee, it was held, that the remainderman might redeem the latter without paying off his whole debt ; on the ground that the burthen of the whole redemption would in effect be an increase, by so much, of the charge ; making the estate of no value to those in remainder ; but it was intimated, that there was a distinction between the cases of the mortsragor and of the remainderman. 1248. The right of the mortgagee to hold both securities formerly seems to have been considered to be limited to cases in which both Avere legal securities; and this appears actually to have been the case in the early examples of the rule. Sir W. Grant says (m) : — " If two separate estates are mortgaged, by which, I understand, the legal interest absolutely, and, at law, irredeemably, conveyed, this court will not interpose in (i) Higgins V. Frankis, 15 L. J., Ch. (I) Lord Kensington i-. Bouverie, 329 ; 10 Jur. 328 ; Bowker v. Bull, 1 19 Beav. 39. Sim., N. S. 29. (m) 2 Ves. jun. 376. (*) Jones V. Griffith, 2 Coll. 207. SECURITIES IN EQUITY. 68^ favour of the redemption of one without tlie redemption of both." And again,—" If there are two legal mortgages, Avhich at law are become absolute, the mortgagee shall insist upon being redeemed as to both or neither." And Alderson, B., says (n), — " Where a mortgagee is in possession of the legal estate in two properties."' In a case (o) where a second (equitable) mortgagee of one estate, upon discharge of the first mortgage by sale of part of the mortgaged property, became entitled to and filed a bill to enforce an assignment of the legal estate in the residue, the question was raised whether this was an interest enabling him to hold it, with another security given him by the same mortgagor, on a different estate, against the mortgagor's assignees. But the point was not decided. Assuming the necessity for a possession of the legal interest, it would seem, upon the principle already noticed (1202), that the best right to call for the legal estate, accompanied by an assertion of ownership, is equivalent in these matters to the actual possession of it, that this question might have been well answered in the aflfiraiative (p). But it is now settled that a mere equitable interest in the securities will enable the mortgagee to hold them both, the right not being founded upon any principle connected with the legal estate. AVhere A. assigned a reversionary interest in equitable personalty to B., and secondly to C. (a mort- gagee under A. of freehold and leasehold estates), upon trust for sale, and payment of the residue to A., and then sold to D., who, before completing his purchase, paid ofl' B. ; and A. declared, that until execution of the assignment to D., he should stand in B.'s place and have the benefit of her secu- rity ; it was held (g) that C. might foreclose against A. and D. (the latter being adjudged to be entitled to the benefit of («) 3 y. & C. GOf>. nnd 1 Dc G., ^hxc. & G. 240 ; Neve v. (0) Grugcon c. GciTaid, 4 Y. & C. Pcnncll, 2 H. & M. 170 ; per Sir W. P. 119. Wood ; and see Ex parte Berridge, ^^ (j?) And SCO Ex parte Berridge, 3 Mont., Dca. & DcG. 464, where the rule ilont., Dea. & De G. 464 ; Iliggins r. -was applied in bankniptcv by directing Frankis, 15 L. J., Ch. 329; 10 Jur. an account of what was due upon all the 328. securities. (j) "Watts V. Symes, 16 Sim. 640 ; G^'S RIGHT TO CONSOLIDATE B.'s security), in default of payment of both his securities. Here all the interests in the personalty were of necessity equitable, but the rule was put into operation in favour of a p7iisne. and against a prior incumbrance, on that fund. 1249. The right of complete redemption belongs to judg- ment creditors, who may therefore retain a security for one judgment debt, to answer others due from the same judgment debtor (r). And it overrides the right of the surety (1366) for one of the debts, who discharges it, to have the full bene- fit of the security for that debt ; unless there be a special contract that the surety's right shall have priority ; or unless fraud or misrepresentation against the surety have affected the rights of the mortgagee {s\ A contract in the surety's favour will not be inferred, from the mere fact that the suretyship extends only to one of the debts, and that he refused to be bound for the other. 1250. The incumbrancer is entitled to unite securities of different natures, as an assignment of equitable personalty with a mortgage upon freeholds and leaseholds {t). 1251. The right of the morto^ag-ee to be redeemed as to his Avhole security applies whether the suit be by a person actively seeking the aid of equity to redeem, or a foreclosure suit, where the mortgagee, who is liable to be redeemed, comes to enforce his legal right {u). So in bankruptcy on a petition for a sale the mortgagee has this right, whether the application to the court be by him or not {x). And although a different decision was come to in equity by {y) Turner, V.-C, on the supposed authority of a determination by Wigram, V.-C. {z) (who, where one estate had been mortgaged to (r) Spalding v. Thompson, 26 Beav. of Lords ; but the reasons do not ap- 637. pear, and there seems no douht on the (») Farebrother v. Wodchouse, 23 point. Bear. 18 ; 2 Jur., N. S. 1178 ; 2G L. .J., {u) Tribourg v. Lord Pomfret, cited Ch. 81. Appojil compromised, 2fJ L. J., Ambl. 733. Ch. 240. (x) Ex parte Berridge, 3 Mont., Dea. (f) Watts V. Symes, 16 Sim. 640 ; & De G. 464. And see Spaldinj: v. Thompson, 26 (y) Smeathman v. Bray, 15 Jur. Beav. 637; Tassell r. Smith, 2 De G. 1051. & J. 713. So in Jones v. Smith, 2 Ves. (c) Holmes v. Turner, 7 Hare, 367. J. 376, which was reversed by the House SECURITIES IN EQUITY. 687 secure successive advances, and the title deeds of another estate had been pledged for part only of those sums, directed in a foreclosure suit that each estate should be foreclosed on non-payment of the particular sum secured thereon) ; the mortsao-ee's rlfiht has since been confirmed (a) and it is now well settled, that whether the suit is for foreclosure or re- demption, the mortgagee is equally entitled to say to the mortiT-asor " You must redeem entirely or not at all." It is clear, on the other hand, that the mortgagor cannot insist upon this rule as against the puisne mortgagee of seve- ral estates, of Avhich there are prior mortgages to different persons. Either of such persons may be redeemed separately by the puisne mortgagee, notwithstanding the mortgagor's objection (i). There is no question here of leaving either of the prior mortgagees a part of his security which may be defi- cient, nor does it concern either of them, whether the other be redeemed or not. And if the puisne mortgagee seek to redeem those prior to him in one suit (which he may do if they do not object) he may still have a decree to redeem them separately ; for this mode of proceeding will not alter his rights as between him and the mortgagor, or prevent him from giving up his right to part of the security if he shall see fit, and working out his claim against the rest (1769). 1252. Nor does the right of retainer arise where one secu- rity has been satisfied before the other was complete. There- fore where there was a mortgage on one estate, and a judg- ment was also recovered, and the xlebt was paid into court, and taken out by the mortgagee, before he had recovered judg- ment in respect of a mortgage debt charged on another estate (the security for which was held to be invalid), it was held that he could not retain the deeds, and refuse to reconvey the (rt) Watts V. Symcs, 1 Dc C, ^fac. was not arjrncd before Wipram, V. C, & G. 240 ; Sell))- V. Tonifrct, 7 Jur., and no reason is given for the decision, N. S., 836, 860 ; 1 J. & II. 336. The which m.ay have been on the ground terms of redemption are the same that both the mortgages were not legal, whether they lie ascertained in a snit Thev were so in Sm^'afhrnnii v. Bray. for redemption or foreclosure. (2 Hare, {h) Telly r. Wathen, 7 Hare, 3Jl ; 334 ; 6 Id. 160.) The point in question 1 De G., Mac. & G. 20. 688 EFFECT OF NOTICE IN estate comprised in the satisfied mortgage, until payment of the second judgment (2-). Chapter IX. Part 3. — Of Priority under securities UPON Chattels Personal and Choses in Action ; AND UPON Ships under the Maritime Law. 1253. Of Priority in Securities upon Chattels Personal and Choses in Action. 1268. Of Priority under the Maritivie Law. 1253. It being necessary for a person who contracts for an interest in personal property, whether by way of mortgage or absolute purchase, to complete his title by possession, or in the case of a chose in action or other property which is inca- pable of delivery, by giving notice of his interest (1086), a bond fide incumbrancer upon such property who is without notice of a prior charge and obtains possession {a), or gives no- tice of his own charge to the person who has the legal interest in or control over the property, shall generally be preferred to earlier claimants who have not taken possession, or who have given later or no notice (Z»), even though the holder of the property have by other means acquired notice of the earlier claim (c). Before taking his security, he ought however to inquire if any notice have already been given (c?); but he shall not suffer from neglecting to do so, if by inquiry he could have got no infonnation as to the earlier charge — as if one trustee only had notice of it and had died (e). (z) Mayor of Brecon v. SejTnour, 26 Younge, 602 ; Lee v. Hewlett, 3 K. & Beav. 648 ; 5 Jur., N. S. 1069. J. 531. (a) Daniel v. Russell, 14 Ves. 392. (c) Lloyd v. Banks, L. R., 4 Eq. {h) Dearie v. Hall, 3 Russ. 1 ; 222 ; In re Brown, W. N. 1867, 273. Loveridge v. Cooper, id. 30 ; Foster v. (d) Smith v. Smith, 2 Cro. & M. Blackstone, 1 M. & K. 297 ; Foster v. 231. Cockerel], 9 Bli., N. S. 332; Meux v. (e) Meux v. Bell, supra; Foster v. Bell, 1 Hare, 73 ; Hulton v. Sandys, Blackstone, supra. SECURITIES UPON CHATTELS. 689 1254. The notice does nut disturb the order of priority until the fund has reached the hands of, or has become due from the trustee or other person Avho is responsible for it. Therefore an assignee who gives notice at any time before that period will retain the priority which is given by the date of his security, against another incumbrancer of later date who has given an earlier notice (/). This rule also applies to an attachment (^) issued out of the Court of the Lord Mayor of London, against a fund, before it has come to the trustee's hands. 1255. A result of this rule is, that an incumbrancer of later date may obtain priority, notwithstanding the utmost diligence of one earlier in time in giving notice of his secu- rity. For if the later incumbrance be made in favour of the trustee or holder of the fund himself, no notice by the owner of the prior incumbrance will aflfect the security of the trustee. The notice Avill not operate before the fund comes into the trustee's possession, and when he receives it, the notice of his own security will first attach and give it precedence (h). 1256. Notice should nevertheless be given at the earliest period, for though the trustee has priority in respect of all charo-es existins; in his favour at the date of the notice, he cannot afterwards acquire any new charge or right of set-off, and he is from that time bound to withhold all further pay- ments on account of the mortgagor, unless made Avith the mortgagee's consent {i). 1257. The priority of the holder of the fund extends not only to actual charges, but to all rights of set-off and other equities existing between him, or the estate out of which the fund is payable, and the person entitled to the fund subject to the incumbrances (/{). 1258. No priority can be obtained by a creditor who has a charging order, under 1 & 2 Vict. c. 110, and 3 & 4 Vict. (/) BuUcr r. Plunkctt, 1 J. & H. (i) Stephens i-. Venables, 30 Beav. 441 -, : Jur., N. S. 873. 625. (g) Webster v. Webster, 31 Beav. {fc) Webster v. Webster, Stephens r. 393 ; 8 Jur., N. S. 1047. Venables, supra. See Willcs v. Green- (A) Somerset v. Cox. 33 Beav. 634 ; hill, 29 Beav. 376 ; Nelson v. London 10 Jur., N. S. 351 ; 33 L. J., Ch. 490. Assurance Co., 2 Sim. & St. 292. G\)0 STOP ORDER ON FUND IN COURT. c. 82 (154), upon a fund in court, by giving notice thereof to the Accountant-General. A creditor who has obtained such an order, or who is otherwise an incumbrancer (Z) upon a fund in court, should apply to the court for a stop order, of which notice should be given to all persons, who have ob- tained similar orders upon the fund (tw), and which will be as effectual as notice in other cases in giving priority (n) ; like notice also, it applies only to the particular charge in respect of which it is obtained, thousfh it be granted against the whole fund (o). If after the stop order have been obtained the share is carried over to the account of the mortgagor and his incumbrancers, a stop order obtained by a later mortgagee will not affect the priority of him who obtained the first, though it seems it would be otherwise if the fund were car- ried over to the account of the mortgagor alone (/>). The right thus acquired by a puisne incumbrancer without notice cannot be disturbed by a mere notice to the accountant- general, who is not a trustee of the funds in his hands, but only the agent of the court (1096.) 1259. When a person who has a lien upon a fund, of which he is the holder, pays it into court, he should state his claim and obtain a stop order, otherwise he may lose his pri- ority as against a creditor without notice of the lien, who gets such an order (y). But if before conversion and payment into court of the proceeds of incumbered property, an incum- brancer has completed his title by giving notice to the holder, an earlier stop order obtained by another claimant will not affect his priority (r). So if there be no fund in court, which could be the subject of a stop order before the bankruptcy of the assignor, and the assignee have given notice, he will have a better right than the assignees under the bankruptcy to the (0 Greening v. Bcckford, 5 Sim. (p) Lister v. Tidd, L. R., 4 Eq. 462. 105. (rj) Swayne v. Swayne, 1 1 Beav. 463. (m) Hulkes v. Day, 10 Sim. 41. (r) Brearcliff v. Dorrington, 4 De (n) Greening v. Bcckford, supra ; G. & S. 122 ; Livesey v. Harding, 23 Warburton i;. Hill, Kay, 470. Beav. 141. See Etty v. Bridges, 2 Y. (o) M'I>eod V. liuchanan, 33 Beav. & G. C. C. 486. 234 ; 9 Jur., N. S. 1266 ; 10 Id. 223. NOTICE BY ASSIGNEES IN BANKKUPTCY. 691 fund when brought into court (s). And until the court has made itself the trustee by dealing with the fund, or so long as any thing remains to be done in connection with it, wherein the trustee's concurrence is necessary, notice to him will give priority (t). It has however been held that if the trustee himself make the advance, the fund being in court, he is bound to obtain a stop order, so that any other person avIio proposes to make an advance may ascertain whether the fluid is incumbered (u). AVhere several stop orders have been obtained on the same day, a prior notice by one of the creditors will give priority to his claim (x). 1260. The rule as to giving notice is binding upon the assignees in bankruptcy of persons interested in the fund, whose omission to give it will cause the postponement of their interest to that of a subsequent assignee for value by whom notice has been given (y). This is upon the principle that the assignees stand in no better position than the bankrupt, and are equally subject to all the rules concerning equitable rights. The same principle Avas applicable under the Insol- vent Act (z). The assignees in bankruptcy of the assignor of the fund do not however in all respects merely stand in the place of the bankrupt. They have a statutory right under the Bankrupt Act to such property as at the time of the bankruptcy was in the order and disposition of the bankrupt, Avith the consent of the true owner, and they so far stand in a higher position than the bankrupt, that whereas under ordinary circum- stances the title of the particular assignee is complete as between him and the assignor, without any notice by the foi-mer (the notice being material only as between the as- (s) Day V. Day, 1 De G. & J. 144 ; (x) Tirason r. Ramsbottom, 2 Keen, S. C. 23 Boav. 391 ; 3 Jur., N. S. 403, 35. 732. (y) In re Barr's trusts, 4 K. & J. (0 Warbwrton r. Hill, Kay, 470 -, 210 ; 4 Jnr., N. S. 1013 ; Lloyd r. Matthews r. C.abb, 15 Sim. 51 ; Thonip- Banks, L. R., 4 Eq. 223. son v. Tomkins, 2 Dr. & Sm. 8. (r) Re Atkinson's trust, 2 Dc C, M. (m) Elder r. Maclean, 3 Jur., N. S. & G. 140 ; 4 De G. & S. 548 ; Re 283. Cawthomc, Id. 551, n. 692 JUDGMENT CREDITOR AVITH NOTICE. signee and a third party, and the absence of notice alone being no evidence of the invalidity of the assignment (a), the assignees in bankruptcy of the assignor, where notice has not been given, -will be entitled to the fund against the par- ticular assignee himself, whether it fall into possession be- fore or after the bankruptcy, and though the bankrupt's interest was only contingent, because the fund is within the order and disposition of the bankrupt with the consent of the assignee, of which consent his neglect to give notice is evi- dence (5), 1261. The assignees in bankruptcy will not however be- come entitled, where the mortgagee would have completed his title but for the false representation of the mortgagor (c), nor where the absence of notice does not arise from neglect (d). Therefore assignees in bankruptcy were not preferred to an assignee under a prior insolvency, who before payment of the fund into court had no knowledge or notice of the insolvent's interest in it ; there being, under such circumstances, no con- sent, or laches which would be equivalent to consent, to the possession of the bankrupt (<?). 1263. A judgment creditor who obtains a charging order, is in the same position as to priority, as other persons who take with notice of prior charges, if he have notice when he makes his order absolute ; because the actual charge is ac- quired at that time, and the creditor is placed in the same situation as if the debtor had then given him a voluntary charge in writing under his hand. But, if the fund have (a) Dearie v. Hull, 1 lluss. 24 ; Cook V. Black, 1 Hare, 390. See Hobson v. Bell, 3 Jur. 190. (/y) Bartlett v. Bartlett, 1 Do G. & .1. 127 ; 3 Sm. & G. 533 ; 3 Jur., N. S. 284, 705 ; Ex parte Lucas, 3 De G. & .1. 113. In re Vickress, 7 W. R. .">42. The decision in Bartlett v. Bartlett must also be taken to have overruled In re Pole's trusts, 2 Jur., N. S. 085, where it was held that the ass.i;:mce by deed of a reversionarj- interest in money, who had not given notice, was entitled to priority over the assignor's assignees in insolvency under the Indian Act, 11 & 12 Viet. c. 21, s. 7, which contains an order and disposition clause. See Grainge v. Warner, 13 W. R. 833. (c) Ex parte Belt, De G. 577. (^d) In re Eawbonc, 3 K. & J. 476 ; S. C. id. 300 ; 3 Jur., N. S. 556, 837. (e) The mortgagee was also pre- ferred to the assignees, where the fund having been transferred into the mort- gagor's name without his knowledge, was held not to be in his order and dis- position with his consent. (Ex parte Richardson, Buck, 480.) DECLARATION OF TRUST. GU'-'j been assigned before the order nisi fur chavging it was ob- tained, a stop order obtained by the assignee belbre the order 7iisi was made absolute, will override it ; the object of the statu e, in providing for the order nisi, being merely that no new charge should be effected after the date of that order, and before it is made absolute ( /*). 1263. And a judgment creditor cannot gain priority by virtue of a charging oi'der, either nisi or absolute, over the equitable mortgagee of a chose in action by whom no notice has been given, whether the mortgage were prior to the judg- ment or were subsequent to it, but before the charging order ; because before the date of the latter, the fund is not standing in the name of any person in trust for the judgment credi- tor iff), and at the date of the order the debtor was no longer the sole owner of the fund. Moreover the judgment cre- ditor, taking subject to all the equities which afiected the debtor (1291), and not being considered as a purchaser within the meaning of the judgment acts, gets nothing but what the debtor actually had to dispose of (/i). 1264. The title of a person, Avho claims under a declara- tion of trust, is completed by the declaration of trust ; and a subsequent incumbrancer cannot gain priority over the cestui que trust by giving notice. Therefore Avhere {i) shares in a banking company stood in the name of a trustee, who exe- cuted a declaration of trust of them, of Avhicli no notice was given to the company, and afterwards pledged part of them, together with others belonging to himself, to the company, it was held, that against the latter, the cestuis que trustent were entitled to such of the shares pledged as could be ascertained to have belonged to them. The authority of Lord Langdale is indeed against this doctrine (/s) ; but V.-C. AVigram's deci- (/) Warburton i'. Hill, Kay, 470. Jur.,N. S. 121 ; Dunster r. Lord Gleu- See 1 & 2 Vict. c. 110, s. 15. gall, 3 Ir. Ch. R. 47. {g) See 1 & 2 Vict. c. 110, s. 14 ; (i) Pinkett v. Wright, 2 Hare, 120 ; Irish Act, 3 & 4 Vict. c. 105. 12 CI. & Fin. 704 ; noin. Murray v. (/<) Scott V. Lord Hastings, 4 K. & Fiukett. J. 633 ; 5 Jur., N. S. 240. See Watts {h) Martin i\ Sedgwick, 9 Bear. V. Porter, 3 Ell. & Bl. 743 ; Bcavan v. 333. Lord Oxford, C De G., ^L & G. o07 ; 2 G94 EFFECT OF POSTPONING NOTICE sion was affirmed in the House of Lords, and has been since followed by Lord lloniilly, M. E.. (/). The latter learned judge attem])ted to reconcile the conflicting decisions, on the ground that a violation of duty, and something like fraud by the assignor, governed the case of Martin v. Sechjwick. The case was simply this, — A. being bound by the rules of an insurance office, Avith which he was connected, to keep on foot a certain insurance on every share held by him, and desiring to hold more shares without increasing his insurance, bought a number of shares, and transferred them into the name of B. as his trustee ; B. being then insured, but not a holder of shares, and therefore not under the necessity of eiFecting any further insurance. B. executed a declaration of trust of the shares to A., but the latter gave no notice to the office, and B, afterwards mortgaged the shares to C, who gave notice, and was held entitled to priority over A. It certainly appears, as was observed by Lord Romilly, that the act of A. was in viola- tion of his contract, a species of fraud, and an evasion of the rules of the society ; and if the judgment had gone on that footing, the case would not have clashed with Sir J. Wigram's decision ; but Lord Langdale made no allusion to the con- duct of A. He treated him and C. as equally innocent, and throughout spoke of the omission of A. to give notice to the office, as the neglect by Avhich C. had obtained the ad- vantage. The mortgagee, who does all in his power to complete his title by giving notice, will not be postponed because another, whose security is of later date, has been able to give an earlier notice. Where there was a mortgage of a ship and cargo, and the cargo was transliipped in a distant port, and again mortgaged without notice of the first security ; and the second mortgagee gave notice to the consignees of the cargo, and the first did the same later, but as soon as he heard of the transhipment, he was not postponed {m). The mortgagee is not bound to adopt means for giving notice, (Z) Clack V. Holland, 18 Jur. 1007 ; (w) Feltham v. Clark, 1 De G. & S. 19 Eeav. 262. 307. WHEN PROPERTY IS AT A DISTANCE. G95 which may prove botli useless and burtliensome, and there- fore need not send a notice to meet the master of a ship on a distant and roving voyage wherever he may be, though by doing St), his title may be earlier completed (n), but pos- session must be taken at the first opportunity. Priority has however been forfeited by neglect to send notice where there was time, and a reasonable opportunity to communicate with the ship (<?). And to acquire a claim upon the freight prior to that of the mort£ao;or, or of a later mortgao-ee of the freight earned on the particular voyage, who has given notice to the char- terers, the moi'tgagee must take possession of the ship before the completion of the voyage ; otherwise the mortgagor or subsequent assignee will take it and will not be liable to account (p). The arrival of the ship in the docks is not such a completion of the voyage as will deprive a mortgagee of this right to the freight, if he do not take possession until the happening of that event. It is enough if he take possession before the discharge of the cargo, for the right to freight does not accrue until the delivery of the goods, unless there be a stipulation to the contrary (y) ; and so long as they remain on board undelivered, the possession of them is as much within the reason of the rule whilst the ship is in, as Avhilst she is on her way to, the docks. 1265. The mortgagee's right to the freight remains, al- though, from his security being only upon a part of the ship, he cannot take exclusive possession against or prevent deli- very of the cargo by the owner of the remainder ; for, though unable personally to take possession, if he give notice to the part owner in possession and require payment of his share of the freight, he will entitle himself to receive such share of all freight accruing and not actually due at the time of the notice (r). (w) Feltham v. Clark, supra ; Lang- 806. ton V. Ilortou, 1 Hare, 549. (q) Tlie John, 3 W. Bob. 170. (t») Ex piute Lucas, 3 De G. & J. (/•) Cato v. Irving, 5 De G. & S. 113. 210 ; see Camden v. Anderson, 5 T. R. (p) Cato V. Irving, 5 De G. & S. 709. 210 ; Brown r. Tanner, L. R., 2 Eq. 696 ASSIGNMENT OF TRUST PROrEKTY. The mortgagee's neglect to take such early possession will not, however, give any better right to a subsequent incum- brancer, who had notice of the prior security, when he took his own : in which matter a ship broker, who has advanced money for the ship's use, seems to be in no better plight than any ordinary incumbrancer (^). 1266. One Avho acquires a legal title to personalty will hold it free from a trust to Avhich it Avas subject in the hands of the transferor, if the transferee took it without notice of the trust, even if he did not complete his legal title until after notice. But the assiirnee of a chose in action claim- ing under an instrument which is available only in equity takes subject to all trusts and equities which attach to it as against the assignor {u). Hence a svib-mortgage will fall with the original mortgage upon which it stands, if the latter be set aside for fraud (or). And where a security by the continuing partners of a firm to the retiring partner was assigned by him, it was held, that the assignees took subject to the equitable right of set-oiF of the former against the latter; and by taking a substituted security after the first, the assignees also become liable to such equities as had arisen at the date of the second security (?/). 1267. Where the parties are alike innocent and are equally diligent in completing their title, priority in the date of their respective securities will, as in equitable mort- gages of realty (1236), give the advantage. This may be illustrated by a case in which a person took a mortgage of a ship at sea, without notice that the master had a power of attorney from the mortgagor to sell his interest in the ship. Upon this power the master in fact acted and sold after the date, but to a person who had no notice of the mortgage. At the end of the return voyage each party took possession; it) Gibson V. Ingo, 6 Hare, 112. Hare, 186. (m) Moore v. Jervis, 2 Col. 60 ; (,r) Cockell r. Taylor, supra ; Bar- Priddy v. Rose, 3 Mer. 86 ; Cockell v. nard v. Hunter, 2 Jur., N. S. 1213 ; Taylor, 15 Beav. 103 ; Ord v. White, Brandon v. Brandon, 7 De G., M. & 3 Beav. 357 ; Dunster v. Lord Glengall, G. 305. 3 Ir. Ch. R. 47; Cole v. Muddle, 10 (y) Smith v. Parkes, 16 Beav. 115. KIGUTS OF .MAurn.Mi-: Lii:x. ^•J7 but the rl<;lit of the inoi-ltragee was upheld, though upon the terms of his making an aUowance for the expenses of fitting the ship for the home voyage (z). A stipulation which is founded upon the rule, that the freight is li:il)l(' foi- the expenses of the voyage in which it is earned (a) ; and one part owner, being entitled as against the others to have it so applied, the mortgagee cannot put his right higher than that of the part owner from whom he derives his title {!/). Of Prior if// under the Maritime Lmc. 1268. \\'e have seen that, except by statute (236), no special privilege is conferred iu England, as in some coun- tries (c), upon creditors who have lent money for the neces- sities of ships, and that under the maritime law of this country no lien(^ff) on a ship, apart from possession, can be acquired (r) Cato V. Irving, 5 De G. & S. 210. (tf) Green v. Briggs, 6 Hare, 395 ; Lindsay v. Gibbs, 2G Beav. 51 ; 2 Jur., N. S. 1039 ; 5 Id. 376. The expenses include insurance ; at least, as against the assignee of one of the part o«-ners who has not given notice of his interest to the other part owners. Id. (/y) Cato r. Irving, supra; Alexander V. Simms, 18 Beav. 80 ; 5 De G., M. & G. 57. (c) The following is the order of priority pointed out by the French code : — 1. The costs of sale and di- vision of the ju-oceeds ; 2. Pilotage and other dues ; 3. Costs of watching ; 4. Rent of warehouses for rigging and stores ; 5. Costs of repairs to ship and rigging since the last voyage, and com- ing into port ; 0. Wages of master and crew employed in the last voyage ; 7. Advances to the master for the use of the ship during the last voyage, and re- payment of the price of goods sold by him for the same purpose ; 8. iloney due to the vendor, builders and work- men, if the ship have not yet made a vovage ; and to the creditors for stores, works, refitment, provisions, annament and equipment, before her departure, M. VOL. II. if she have already sailed ; 9. Money lent on the hull, keel, rigging and stores (i. e. on bottomry), for refitting, victualling, arming and equipping be- fore departure ; 10. Premiums for in- surance of the hull and appendages of the ship for the last voyage; 11. In- terest by way of damages to freighters, on default of delivery of their goods, or for repayment of losses sidTered by the said goods by default of the captain or crew. In case of deficiency, the creditors mentioned under each of these heads come in ^>a7'i jjassu in propor- tion to their interests. One event in which these privileges will become extinct is when, after a vo- luntary sale (which must be in writing, and may be either when the ship is at sea or in port), the ship has made a voyage under the name and at the risk of the purchaser, without opposition by the vendor's ci'editors. The voluntary sale during a voyage does not prej udice the vendor's creditors ; the ship or its price being still their pledge, with power to impeach the sale for fraud. Code de Commerce, 191 — 193,19.5, 19(;. {d) As to the use of the word "lien" in questions between part owners, see G Hare, 4(X). Z L 698 PRECEDENCE OF MARITIME LOANS in respect of the repairs, fitting or furniture of a ship while in this country, the personal credit only of the owner being pledged; a mortgagee of the ship Avill have priority over such a creditor, both against the ship and against the proceeds when she has been sold {e), even though the mortgagee had notice that money had been so laid out for the use of the ship(/). It is, however, different with respect to such burdens, as salvage, seamen's wages, and bottomry bonds, which arc strictly liens upon the ship {(/). 1269. The precedence of maritime securities is to be determined according to the lex fori (A), and the general rule concerning them is that the holders have priority over ordi- nary incumbrancers, and that as between themselves if they be given at different periods of a voyage, and the security be insufficient to discharge them all, the last in date shall be paid first (z); because by the last loan the ship was pre- served, and without it the former lenders would have lost their security. For the same reason if a ship captured by an enemy, and subject to a mortgage, be ransomed, the ransom shall be raised out of the profits notwithstanding the mortgage (k). And if money be raised by respondentia on the cargo (128), and be not applied in forwarding it, but the cargo is sent on by the act and at the cost of the owner, the service is in the nature of salvage, and the person Avho has rendered it will have priority over the holder of the respondentia bond (/). It is the fact of salvage, in the case of a security, which gives the priority, and the last incumbrancer will not be privileged against the right of a former lender, unless the loan arose out of the destitute state of the master and his inability to get the necessary supplies for his vessel on the (<r) The Xeptunc, 3 Knapp, 91. ship. (Gihson v. Iiigo, G Hare, 112.) (/) Watkinson v. Bemadiston, 2 (A) The Union, 30 L. J., Ad. 17 ; P. Wms. 367. Lush. 128. (g) The Dowthorpe, 2 W. Rob. 73 ; (i) Abbott, 163, cd. 8 ; La Con- The Royal Arch, Swab. 269. But there stancia, 2 W. Rob. 404. is no lien for wages upon the certifi- (/<;) Hope v. Winter, 2 Eq. Ca. Abr. cate of registry, or upon the freight, 090. any more than for disbursements made, (Z) Cleary v. M' Andrew, 2 Moo. P. or liabilities incurred, on account of the C, N. S. 216 ; 10 Jur., N. S. 477. AND LIENS lOK WAGES. 699 personal credit of himself or his employers (/«). In like manner, in the case of an incumbrance on real estate, where a creditor had prevented the eviction of the lessee by ad- vancing money to pay oflf arrears of head rent, it was inti- mated (n), that this rule should not be made an instrument, by which the owner, subject to the mortgage, might get a collusive preference for the salvage creditor. Nor will the creditor derive any advantage over a prior incumbrancer, by reason of an advance for the necessity of the ship beyond the actual extent of the bottomry bond. Therefore, where charterers of a ship, with notice of a mortgage, took a bot- tomry bond which did not cover the expenses incurred, it was held that they could not, as against the mortgagee, set off the excess against the sum which became due under the charter- party (o). 1270. The principle of maritime securities gives to the lien of the mariners for their wages and subsistence (which, to use the expression of Lord Stowell, is a sacred lien, lasting as long as a plank remains), precedence over bottomry bonds, and other securities ( p), whether the wages were earned be- fore or after the date of the bond(y). And payments for wao-es made by the direction of the master on account of the ship are entitled to the same priority (r). The Avages may even be claimed in respect of several voyages, in preference to a bond made during the last of them, where the contract of hiring is continuous, and binds the seaman to remain on board durins; the whole series of voyages (s). But the master, although by statute he is put upon the same footing as to wages with the mariners, cannot set up a lien for his own wages, or for money advanced by him for payment of the (tti) Brice v. Williams, Wallis, R. Lnsh. 128. 325 ; Abbott, 163. (?•) The William 11. Safford, Lush. (n) Angell i-. Brj-an, 2 Jo. & Lat. 69. But not payments by a person 763. merely claiming as creditor for money (o) Dobson r. Lyall, 2 Ph. 323. alleged to have been partly laid out in (/>) The Madonna d' Idra, Dods. wages. (The New Eagle, 2 W. Rob. Ad. 37 ; The William H. Safford, 441.) Lush. 69. (s) The Louisa Bertha, U Jur. 1006. (j) The Union, 30 L. J, Ad. 17; zz 2 700 EIGHTS OF CREDITORS wages of the mariners in competition Avitli their lien, for bemg, by an ancient rule of law, personally liable to them for their wages, whether the security be sufficient or not, he cannot take any thing from it to their detriment (t). Neither can the master claim in priority to the bondholder, where, as is usually the case, the former has become personally liable, by pledging his own credit for the loan {u), besides the security of the ship : though it Avill be otherAvise Avhere his personal undertaking is only that he is the master, and in that character has a right to hypothecate the ship(u). Nor will the rule be extended to cases in which the bondholder, for whose protection alone it is made, will not be injured by giving preference to the claim of the master— as where, by marshalling the securities, the claim of the bondholder can be thrown upon the cargo, leaving the ship and freight open to the master {w). 1271. The claim for wages and other burthens, which form a lien upon the ship when she is brought into the yard of a shipwright for repairs, will be preferred to the ship- wright's common law lien, notwithstanding the possession upon which that lien is founded (296) ; it being presumed that he received the ship subject to its existing obligations, and the preferential claim will extend to the usual allowance to foreign mariners for their return to their own country, but not to any continuing claim for wages or necessaries supplied after the vessel has come into the hands of the shipwright {x). Nor can claims for necessaries, or other liabilities which are not perfected at the time of the shipwright's possession, come into competition with his lien (y). 1272. The right of the creditor by mortgage or bottomry may be overridden, by the lien of the successful suitor, for damage done after the date of the mortgage or bond (242) ; for the creditor for damage may be wholly without remedy, (t) The Salacia, Lush. 545 ; 9 Jur., (t>) The Salacia, supra. N. S. 27; 32 L. J., Ad. 41. (w) The Edward Oliver, L. R., 1 (w) The William, Swabey, 346 ; 31 Ad. 179. L. T. 345; The Jonathan Goodhue, (a;) The Gustaf, Lush. 506. Swabey, 524. (y) Id. BY BOTTOMRY AJVD LIEN. 701 except against the ship, but the other may exerei.se a discretion as to advancing: and in the case of the bottomry creditor, the risk is covered by the premium. But a bottomry bond, bond Jide granted for the repairs of a vessel after damage done, will not give way to the earlier lien for damage ; the creditor under which himself derives a benefit from the repairs (r). 1273. One of several plaintiffs in different causes for necessaries, who has obtained a decree, will be paid before the others, who will share rateably, being in "pari conditione, the court preferring him Avho has first obtained a decree (a). No distinction being made between rights to the proceeds of the ship, and to the ship itself, the proceeds will be ordered to be paid to mortgagees as against a creditor alleging an advance for the service of the ship, in payment of wages, or for other purposes (b). Chatter IX. Part 4.— Of Priority by Statute. 1274. L'nder the Registration Acts. 1284. Under the Ship liegistr)/ Acts. 1291. L'nder the Judgment Acts. 1313. Under the Bankruptcy Acts. 1319. t'nder other Statutes. Of Priority under the Registration Acts. 1274. 'We have already had occasion to observe, that the register established by various Acts of Parliament in England and Ireland, is not in either country notice to those who make no search therein (1157). Although, at law, an unregistered deed is fraudulent and void, according to the words of the statutes, as against a sub- sequent purchaser for valuable consideration, though he took with notice of the unregistered security (c), it has been long (r) The Aline, 1 W. Rub. 111. see The Neptune, 3 Knapp, ni. (a) The William H. Safford, Lush. (p) Doe d. Rohinson v. AUsop, 5 B. 69. & Aid. 142. {h) The New Eagle, 2 W. Rob. 441; 702 PRIORITIES UNDER ENGLISH AND held in equity {b), that the effect of these acts is neither to vitiate an unregistered deed, nor to give a deed any greater force by virtue of registration, than it originally had, as against an earlier unregistered deed, but only to avoid the latter as against the former (c)— thus letting in the doctrine of notice. And this is, because according to the equitable construction, the intention was to protect pei'sons without notice, and not to shelter those who had it already (c?). For a person who takes and registers a conveyance, with a view to defeat the charge of another, takes with an ill conscience, and his purchase shall never be set up in equity. From which considerations it follows, — 1st. That a legal mortgagee without notice, and duly regis- tered, shall be preferred to an equitable mortgagee, also duly registered, and earlier in time than the other (e) ; and that a prior legal mortgagee, duly registered, lending a further sum without actual notice of a puisne incumbrance (/"), or an equitable mortgagee in like manner getting in the legal estate (^), may tack their respective securities, although the mesne incumbrance be duly registered — for the registration working no notice, the legal estate prevails according to the doctrine of tacking. But in Ireland, priority, as has been noticed (69), is according to the time of registration, and the doctrine of tacking, by which the prior legal deed draws to it the subsequent unregistered instrument, to the prejudice of the mesne registered instrument, is controlled {h). Under the Irish act, therefore, an instrument though equitable only, and subsequent in date and execution, becomes effectual by registration against all other incumbrancers (z), whether legal or equitable ; but this is by the mere force of the words of the (J) Jones V. Gibbons, 9 Ves. 411. Abr. 615. (c) Wrightson v. Hudson, 2 Erj. Ca. (g) Cater v. Cooley, 1 Cox, 182. Abr. 609. {h) Bushcll v. Bushell, 1 Sch. & {d) Ford t;. White, 16 Beav. 120; Lef. 90 ; Latouche -y. Dunsany, id. 137. Johnson v. Iloldsworth, 1 Sim. N. S. Sec Carlisle v. Whaley, L. R., 2 E. & 106 ; Bushell v. Bushell, 1 Sch. & Lef. I., App. 391. 90 ; Lord Forbes v. Deniston, 4 Bro. (i) Eyre r. Dolphin, 2 Ba. & Be. P. C. 189 ; Cheval v. Nichols, Str. 664. 290—300 ; Thompson v. Simpson, 1 (e) Morecock v. Dickens, Ambl. 678. Dru. & War. 486 ; M'Neill v. Cahill, 2 (/) Bedford v. Blackhouse, 2 Eq. Ca. Bligh, 228. IRISH REGISTRATION ACTS. 703 act, and does not imply that registration amounts to notice under the Irish, any more than under the English acts (/<). And it is only a deed above exception, and untainted with Iraud, Avhich Avill acquire priority by registration (/). 2nd. That a subsequent incumbrancer, taking with notice of" a prior security, sliall not, although that security be un- registered, gain a preference over it in equity by registering his own(m); because the defect arising from notice cannot be cured by the registration. And this doctrine extends to the Irish act, and by analogy to it, it has been held (n), that a lessor proceeding in ejectment, under 8 Geo. 1, c. 2 (Ireland), must serve the mortgagee, of whose security he has notice, with the ejectment, although the mortgage be unregistered. 1275. IJut the subsequent incumbrancer will not be aflfected, unless he had notice when he took his security (o); for his registering, in consequence of notice received after- wards, is no more than happens when an incumbrancer without notice protects himself by getting in an outstanding term, upon receiving notice of the mesne charge. It has been said that the notice must be so clear and undoubted, that the registration of another deed in prejudice of the title would amount to fraud ; no suspicion of notice being sufficient to induce the couil to break in upon the statute {p). Suspicion of notice, however, is not notice ; but clear constructive notice, such as arises from the agent to the principal, is now held to bind the later incumbrancer ; though no question of fraud or conscience arises out of such notice (</). (A) Bushcll V. Bnslioll, sujira ; Un- derwood V. Lord CourtowTi, 2 Sch. & Lef. 41 ; Pentland i'. Stokes, 2 Ea. & Be. 75. (I) Underwood v. Lord Courtown, supra. (/h) Cheval v. Nichols, Str. OCA ; Sheldon v. Cox, Ambl. G2-t ; 2 Eden, 224 ; Le Neve i'. Le Neve, 3 Atk. G4G; Bnshell v. Bushcll. 1 Sch. & Lef. Of) ; Lord Forbes v. Deniston, 4 Bro. P. C. 189; Johnson v. Holdsworth, 1 Sim. N. S. lOG ; Tunstall v. Trappes, 3 Sim. GOl. («) Biddulph V. St. John, 2 Sch. & Let'. 521. (t)) Elsey V. Lutyens, 8 Hare, 159 ; and see Essex v. Baugh, 1 Y. & C. C. C. 620. (p) nine r. Dodd, 2 Atk. 275 ; Jol- hind I'. Stainbridse, 3 Vcs. 478 ; Wyatt V. Barwell, 19 Ves. 435. ((/) Marjoribanks v. Ilovendcn, Dru. 11 ; and see Lcuchan v. M'Cabe, 2 L*. Eq. B. 342 ; and Worraald r. Maitland. 35 L. J., Ch. G9. In Popham r. BaM- 704 PRIORITIES UNDER ENGLISH AND 1276. Where by the register acts, au unregistered deed is declared to be fraudulent and void only as against purchasers or mortgagees {r), such a deed is not postponed to a registered judgment, where the judgment does not fall within the pro- visions of 1 & 2 Vict. c. UO{s). 1277. An unregistered assignment may be sheltered under the earlier registered deed, and have priority over an unre- gistered deed of earlier date than either of them {t) ; but a later registered deed will not, it seems, protect that which is earlier and unregistered, supposing it to be otherwise good. Therefore where an unregistered lease was mortgaged, and afterwards sold, and the mortgage and purchase deeds were both duly registered, the registry was held to be insufficient (m) ; because it is required that the original deed under which the party claims with the witnesses' names be registered and that the original be produced to the proper officer. Under the Irish act, also, the subsequent registered deed of a person having in fact no interest, but having, by the neglect of the real owners, an appearance of a legal title, was allowed precedence (:r) over an earlier unregistered deed; — the circumstances being, that a husband, party to a mar- riage-settlement by which his wife conveyed her leaseholds to trustees, upon trust for herself and her children, with a trust for the husband to receive the rents during his life, made a lease after the marriage, to which the trustees were post- poned; on the ground, that having permitted him by their neglect to register, to retain the appearance of a marital right, neither they, nor those claiming under them, could set up their deed against the persons deluded by this appearance of riffht. o win, 2 Jo. 320, notice of a tenancy, and (.?) Cathrow v. Eade, 1 Sm. & G. in Wallace v. Donegal, 1 Dr. & Wal. 423. 4f;i , lis pendens, were held not to he (f ) Warhurton r. Loveland, 6 Bligh, such notice as would avoid the effect of N. R. 1 ; 2 Dow & Clark, 480. the Registry Act, according to Wyatt (m) Honeyconih v. Waldron, Str. V. Barwell. 1064 ; Jack v. Armstrong, 1 Huds. & (r) As in the Middlesex Act, 7 Ann. Bro. 727. c. 20 ; and see 2 & 3 Ann. c. 4 ; 6 Ann. (x) Warhurton v. Loveland, 6 Bligh, c. 35; 8 Geo. 2, c. 6. N. R. 1. IRISH REGISTRATION ACTS. Y05 1278. In the case last cited arose the question, whether it be necessary for the gaining of priority by registration, that both the earlier and later deeds should be the deeds of the same grantor ; and on appeal to the House of Lords from Ireland, it was the opinion of the Judges, with which the House asi'eed, that no such restriction was intended. And it Avas said, that the mischief to the subsequent purchaser, which the acts were meant to prevent, was the same, whether the secret conveyance or charge arose from the deed of his imme- diate grantor, or of a former owner of the estate. But a different opinion was some years earlier expressed (y) by the Court of King's Bench in Ireland, which considered, that the policy of the act Avas confined to the dealings of one party, and to the limits of one life ; and that the devisee or heir of the seller of an estate where the latter had conveyed by an unregistered deed, could not, by a registei'ed deed, vest a good title in a third person ; for there the seller, having already parted with all his interest, the grantor of the regis- tered deed had nothing to convey. And on that principle they decided, that a registered assignment of property, seized and sold by the sheriff, was of no force against an earlier un- registered conveyance by the debtor. Yet it was held to be clear, that if the second deed had been made by the same grantor as the first, it should have prevailed after registration ; for, by the very terms of the act, the other being unregis- tered, would, as against it, have been fraudulent and void. 1 279. The registration of an assignment of a sum of money, charged upon land in a register county, is not within the act, and will confer no priority (r). 1280. A registered charge will not be preferred to a mort- gage of a subsequent date, made in exercise of a power of appointment, even though the mortgagee had notice of the prior charge, and part of the mortgage money had been left to indemnify him against it(rt); because, taking under the (y) Fun- r. Smith, 1 ITuds. & Bro. 63. 735 ; see Jack v. Armstrong, id. 727 ; {a) Skeelcs r. Shcarlev, 8 Sim. \hZ ; Honeycomb y. Waldron, 2 Stra. 1064. 3 My. & Cr. 116 ; Eaton r. Sanxter, 6 (z) Malcolm v. Charlesworth, 1 Keen, Sim. 517. 706 PRIOKITIES U>DER ENGLISH appoiutinent, he had an estate that never was affected by the prior charge (Z>). But since the act 1 & 2 Vict. c. 110, s. 13, this reason fails as to judgments, which are thereby declared to bind lands over which the judgment debtor has any dispos- ing power, which he may exercise for his own benefit without the assent of any other. And a deed of appointment, made in exercise of a power, if not registered, is liable (c), like any other deed, to be postponed to a subsequent registered incum- brance. 1281. The registration protects the equitable title of the mortgagor, as well as the legal title of the mortgagee ; and prevents the lessee of the latter from claiming a title adversely to the former (fZ). 1282. No priority will be gained by an informal registra- tion (e). For instance, if the grantor have executed, and the grantee have done so afterwards, in the presence of other witnesses, by one of whom only the memorial is attested. The act makes one of the witnesses to the deed a necessary witness to the memorial ; the grantee's execution is, however, not the execution of the deed, but may altogether be dispensed with. The grantor's is the real execution, and one of his witnesses must attest the memorial. 1283. The East Hiding Registration Act provides (/), that every deed or conveyance shall be fraudulent and void against any subsequent purchaser, or mortgagee for valuable consideration, unless a memorial be reoistered before the registration of the memorial of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim ; and that every devise by will shall be fraudulent and void against any subsequent purchaser or mortgagee for valu- able consideration, unless a memorial be registered within six months after the death within the kingdom of Great Britain, or within three years after the death beyond the seas, of the devisor ; or where the will is contested, or there is other in- (&) See Doe d. Wigan v. Joucs, 10 550. Bam. & Cres. 459. (e) Jack v. Armstrong, 1 Huds. & (c) Scrafton v. Quincey, 2 Ves. 413. Bro. 727. (d) Ball V. Lord Kivcrsdalc, Beat. (/) 6 Ann. c. 35, ss. 1, 14, 15. REGISTRATION ACTS. 707 evitable difficulty iu registration within six months after the attainment of the a\ ill or a probate thereof, or the removal of any impediment to registration, if the impediment were regis- tered within the like periods after the death of the devisor. A will not registered Avithin the period allowed by the act has been held to be inoperative (^) against a subsequent re- gistered mortgage by the heir at law, though the omission to register the will within the statutory period did not arise from neglect, but from ignorance of its existence, and though there was no " impediment " Avhich could be registered. But the morto^ase was made a year after the discovery of the will, Avhich was not registered until more than two years after that period ; so that with due diligence the will might have been registered long before the execution of the mortgage ; and it may be doubted whether, if this had been done, a court of equity would have given the priority to the mortgagee, for want of that exact compliance with the statute on the part of the devisee, which circumstances beyond his control had rendered impossible. 1284. Under the provision of the Middlesex Registration Act (A), which requires that every memorial shall be num- bered, and that the day of the month and year, and the hour or time of the day when every memorial shall be registered, shall be entered in the margin of the register-book and of the memorial, and that (i) every deed or conveyance shall be fraudulent and void against any subsequent purchaser or mortoarree for valuable consideration, unless a memorial thereof be registered before the registration of the memorial of the deed or conveyance under which such subsequent pur- chaser or mort!>;a2ree shall claim, documents Avhich are shown by the entries to have been registered on the same day, and at the same hour, will be assumed to have been duly entered in the order in which they were received by the registrar, as indicated by the numbers attached to them respectively {k), and will be entitled to priority accordingly, (g) Chadwick c. Turner, 11 Jiir., (i) Sect. 1. N. S. 333 ; 34 Beav. 634 ; L. K., 1 Ch. (k) Neve v. Penncll, 2 H. & M. 170; App. 310. 33 L. J., Ch. 19. (h) 7 Ann. c. 20, s. 6. 708 PKIORITIES OF SECURITIES 1285. The Transfer of Land Act enacts (Z), that if, in any proceeding under the act, any question shall arise respecting the priority of any charges or incumbrances, claims or in- terests, it shall be competent to the registrar to report the same to a judge of the Court of Chancery, who shall have power to summon all parties entitled to attend him, either in court or at chambers, and to decide all questions touching priority, and relative to the rights of parties, as fully as if they were parties to a suit instituted for the purpose. Of Priority under the Ship Registry Acts. 1286. It was provided by the Ship Registry Act, 8 & 9 Yict. c. 89, s. 39, that when the particulars of any bill of sale or instrument of transfer of a ship should have been regis- tered, the particulars of no other bill of sale or instrument of transfer, purporting to be by the same vendor or mortgagor of the same ship or vessel, or share or shares thereof, should be registered until thirty days should have elapsed from the registration of the former instrument: or in case the vessel Avere absent from her port at the time of the former registra- tion, then no other instrument should be registered within thirty days from the time of her return to her port. And in case the particulars of two or more such bills of sale or in- struments of transfer should have been registered, then no other such instrument should be registered, unless thirty days should have elapsed from the time of registration of the last of the former instruments, or from the day of the ship's arrival at her port, in case of her absence as aforesaid. This provision, which corresponded with the act 6 Geo. 4, c. 110, s. 39, having been intended to prevent conflicting claims, did not apply to the registration of a second mort- gage of a ship which was expressly made subject to the first mortgage (m). The same section of 8 & 9 Victoria provided that pur- chasers or mortgagees, when more than one, in the same degree, should have priority, not according to the times of (I) 25 & 26 Vict. c. 53, s. 92. (w) Ex parte Jones, 2 Cr. & J. 513. UXDER MKRCHANT SIIIl'TING ACTS. TOU registration of the bill of sale, but according to the times of indorsing the certificate. So tliat priority under that act belongs to him who first brings the certificate of registry, to have the particulars of the bill of sale, or instrument under which he claims, indorsed upon it, irrespective of the equi- table doctrine of notice (w). Therefore a subsequent mort- gagee who registered his contract gained priority over a prior unregistered mortgagee who had not done so, although the later incumbrancer took his security with distinct notice of the prior mortgage («). But the principle of priority Avhich was there expressly negatived has been adopted into the :Merchant Shipping Act, 1854, Avhich directs (yj), that if there be more than one mortgage registered of the same ship, or share therein, the mortgagees shall, notwithstanding any ex- press, implied or constructive notice, be entitled in priority, one over the other, according to the date at which each in- strument is recorded in the register books, and not according to the date of each instrument itself. It seems however that the statute of 1854 does not make the registration of mort- gages of ships compulsory (90). The mortgagee of a ship Avhose security is registered, cannot tack an unregistered further charge against a third registered mortgage to other parties, where the unregistered charge is not exclusively for the first mortgagee's benefit ; for then it must be considered as an independent security, re- quiring registration. But the Court of Appeal abstained from an expression of ojjinion as to the right to tack, if the further charge had belonged exclusively to the first mort- gagee {fj) 1287. Notwithstanding the want of indorsement of the particulars of a mortgagee's bill of sale on the certificate, even where the omission appeared to have been caused by negligence, and the general disinclination of courts of equity to hinder the strict operation of the Ship Registry Acts, the («) M'Ciilmont v. Rankin, 2 Dc G., {p) Sect. CO. Mac. & G. 420. (q) Parr v. Applebce, 7 De G., M. & (o) Coombes r. Mansfield, 3 Drew. G. 585. 193; 1 Jur., N. S. 270. 7 1 PRIORITIES OF SECURITIES master of a ship has been restrained (?•)» at the instance of the mortgagee, from suing at law for the proceeds of a ship which he liad sokl in a foreign port; the court considering that it might properly interfere to prevent the money from getting into the hands of the master, who, it should be ob- served, himself claimed a lien upon it. This decision was under 3 & 4 Will. 4, c. 55, s. 35, corresponding with 8 & 9 Vict. c. 89, s. 38, which made valid registered mortgages, where there was no indorsement of the certificate, except as against purchasers and mortgagees, who should first procure the indorsement thereof. 1288. AVhere any transfer of property in a ship has been made only as a security for payment of debts, either by way of mortgage, or assignment to trustees for sale and payment of debts, and the transfer has been duly registered, the right of the mortgagee or assignee, according to 8 & 9 Vict. c. 89, s. 46, remains unaffected by an act of bankruptcy of the morto'ao-or or assio-nor, committed after the resjistration of the mortg-acre or assignment, althou2i;h at the time of the bank- ruptcy he shall have possession, and be the reputed owner of the property ; but the mortgage or assignment shall have pri- ority over the right of the assignees in bankruptcy. But in a case (s) which arose under the corresponding section of a former statute (t), where a mortgagee had registered the bill of sale, but had not procured the necessary indorsement to be made on the certificate (the latter having in fact been given by the master upon his return from sea to the mortgagor), and the mortgagor retaining the certificate and the ship, became bankrupt, the Court of Chancery refused to restrain the sale of the ship by the assignees. The mortgagee's title, it was said, depended upon the fact of the order and dispo- sition of -the property, and the legal consequences of that fact. If the assignees had a right at law to sell the ship, there was no equity to restrain them. If they had none, their attempt to sell would be unavailing. This seems only to amount to a decision, that the mortgagee's remedy, if any, (r) Lister v. Payn, 11 Sim. 348. 140. («) Campbell v. Thompson, 2 Hare, («) 3 & 4 Will. 4, c. 55, a. 43. T'XDER MERCHANT SHIPPING ACTS. 7 1 1 was at law, and that no equity arose under the act by reason of the assignees' possession of the certificate. The provision upon this subject in the act of 1854, is (u), that no registered mortgage of any ship or sliare therein, shall be afiected by any act of bankruptcy, committed by the mortgagor, after the date of the record of such mortgage, notwithstanding such mortgagor, at the time of his becoming bankrupt, may have in his possession and disposition, and be the reputed owner of such ship or share thereof; and such mortgage shall be preferred to any right, claim or interest in such ship, or any share thereof, which may belong to the assignees of such bankrupt. 1289. The same act contains the following directions (x), concerning the priority of securities made under the certi- ficates of mortgage established by the act. Where the certificate specifies the places, and limits the time (not exceeding twelve months), within which the power of mortgaging is to be exercised, no mortgage bondjide made to a mortgagee, without notice, shall be impeached, by reason of the bankruptcy or insolvency of the donor of the power. Every mortiraQ:e, which is registered on the certificate, shall have priority over all mortgages of the same ship, or share, created subsequently to the date of entry of the cer- tificate in the registry book, and if there be more mortgages than one, so endorsed, the respective mortgagees claiming thereunder shall, notAvithstauding any express, implied or constructive notice, be entitled one before the other, accord- ing to the date at which a record of each instrument is regis- tered on the certificate, and not according to the date of the instrument creating the mortgage. And subject to these provisions, and to the rules laid down as to the exercise of the power given by the certificate, every morto-ao-ee whose morto-age is registered on the certificate, has the same rights and poAvers, and is subject to the same liabilities, as lie aa-ouUI have had, and been subject to, if his (w) Sect. 72. (a-) Sect. 80. 712 rRiORiTiES UNDER judg:ments. mort«iao-G hud been reiiristered iu the reoister book instead of on the certificate (i/). 1290. The provision in the act of 1854, sect. 70, that the mortgagee shall not by reason of the mortgage be deemed to be the owner of the ship, except so far as may be necessary for making it available as a security, makes the registered mortgagee the owner, so far as is necessary for that purpose ; and tlierefore protects him against a sale of the ship by an execution creditor (z). Of Priority under the Judgment Acts. 1291. Judgments afiect, from the time of their being entered up (a), whatever is then or afterwards becomes the property of the debtor. But the judgment creditor, whether he be Avith or without notice, holds the property subject to every liability under which the debtor held it ; if the debtor have a legal estate subject to an equity, the judgment will be a charge upon the estate, subject to the same equity; if an equitable estate, the judgment Avill affect the equitable interest (6). In which respect the judgment creditor is iu (y) Sect. 80 (4), (5), (6). that in Mliich they were entered up. (z) Kitchen v. Irving, 5 Jur., N. S. By Keg. Gen., Hil. T., 4 Will. 4 (1834), 118. made in pursuance of 3 & 4 Will. 4, c. (a) Formerly, there was no priority 42, s. -1, all judgments, whether interlo- as between judgments entered up in cutory or final, are to be entered of re- the same term, all being supposed to be cord of the day of the month or year, judgments of the first day of the term whetherinterm or vacation,when signed, in which, or in the vacation following and are not to have relation to any which, they were obtained. The sta- other day. But the court or a judge tute 29 Car. 2, c. 8, ss. 14, 15, provided may order a judgment) to be entered that at the signing of judgments the nunc pro tunc. In Ireland, when two day of the month and year of signing judgments for like penal sums were re- should be entered, and that .such judg- covered on the same day, and in the ments as against purchasers bona fide . same court, the fund was ordered to be for valuable consideration, of lands, divided in proportion to the sums re- tenements or hereditaments to be ported due on them. (Woods v. Davis, charged thereby, should be judgments 2 Jo. 815.) only from the time of signing. But (//) 1 Hare, 560 ; Hughes^u. Williams, the Act did not require the plaintiff to 3 Mac. & G. 083 ; Whitworth v. Gau- carry in the judgment roll. The sta- gain, 1 Ph. 728 ; Abbott v. Stratten, 3 tute 4 & 5 W. & M. c. 20, required Jo. & Lat. 603 ; Ames v. Trustees of judgments to be docketed, but not until the Birkenhead Docks, 20 Beav. 332 ; the last day of the tenn next ensuing 1 Jur., N. S. 529. AFFECTED BY PRIOR EQUITIES. 7 1 3 a less favourable position than a mortgagee for value without notice of the earlier charge, because the latter has lent his money on the security of the property, and has a specific lien, whilst the judgment creditor has but a general security (c). 1292. The equitable interests which prevail against the judgment, prevail equally against the execution (</) ; it being of no avail to give protection against the judgment, and not against the execution which is founded on the judgment. The interests of judgment creditors are equally subject, under the old and new law, to prior equities. For although by the statute of Victoria (e), judgments are made to attach upon a much greater extent of property in the hands of the debtor than formerly, and have the force of an express charge thereon, yet the provision that they are to affect the equitable interest of the debtor, shows that it was his beneficial interest only, and not that of any other person which the legislature meant to bind (/). It may, therefore, be taken as a general rule at the present day, that a judgment creditor has no priority by force of his judgment over persons who have prior equitable interests in the same estate (^); w^hether he claim (in an ordinary case of trust) against the estate of the cestui que trust under a judgment against the trustee (h), or against such an equitable interest, as that of a purchaser for value, who has paid his purchase-money without getting a conveyance (J). As to cases of the latter class, the rule was early laid down (A), that if A. take a mortgage by a defective conveyance, and B. lend money to A. on bond, and obtain judgment on the bond, against the mortgagor, and so extend (c) Finch v. Earl of "Winchelsca, 1 the land. And see the judgments of P. Wms. 277 ; Hughes v. Williams, Wood, V.-C, and Turner, L. J., in supra. The applicability of this rca- Benhani v. Keane, 1 J. & H. 698 ; 3 soning seems to be now doubtful ; for De G., F. & J. 334; 8 Jur., N. S. 604. a judgment creditor certainly has under (d) 1 Ph. 731. the new law a specific security (1 Dru. (e) 1 & 2 Vict. c. 110, s. 13. & War. 195) ; and has even been said (/) 1 Ph. 734. to be in the position of an equitable (g) 3 Hare, 427. mortgagee. (Ex parte Boyle, 17 Jur. (/() Newlands v. Paynter, 4 Myl. & 981.) But notwithstanding the higher Cr. 408. quality of his security, it cannot be said (i) 1 P. Wms. 278 ; 3 Hare, 427. that he lent his money on the faith of (A) Gilb. Fonom Romanum, 228. M. VOL. II. 3 A 714 RIGHTS OF CROWN AGAINST ITS DEBTORS the land, a Court of Equity will relieve A. against the judgment creditor; and speaking of such a case (where the land had descended). Lord Nottingham says (?), " I decreed the heir to make a conveyance to the mortgagee, according to his father's covenant for further assurance, and that he should hold till redemption, discharged of those judgments ; wherein I did not rely upon the legal notice of lis pendens, but held the heir in this case to be a trustee of the land descended, which was charged with the equity of the mortgage, but could not be incumbered by the heir ; for a purchaser without notice of a trust, may be free, but an incumbrance is not like a sale." And where tenant for life and tenant in tail joined in con- veying to trustees, in trust to sell and divide the purchase- money, it was held(m) that judgments entered up against the tenant for life after this conveyance, did not bind the estate ; for that would have affected the son's equitable right to the perfoi-mance of the trusts of the deed. And it was said, that from the time when a person, not having judgments against him, entered into binding contracts to sell his estates to pur- chasers, the latter had a right to have the legal estate con- veyed ; and if the vendor had subsequently confessed a judgment, that judgment never could have impeded the progress of the legal estate to them. The like doctrine prevails where the judgment creditor claims after an equit- able charge for payment of debts, or any other equitable interests (n). 1293. By the statute 13 Eliz. c. 4, all lands and heredita- ments which any such treasurer, receiver or other accountant to the Crown as is mentioned in the statute shall have within the time while he, she or they shall remain accountable, shall be liable for the payment and satisfaction of and be put in execution for arrears and debts due to the Crown, in as large and beneficial a manner as if the person accountable had, the day he first became an officer or accountant, stood bound by (I) Burgh ^•. Francis, 3 Sw. 5.%, n.; (w) ,*] Hare, 427; 1 Ph. 730; and and see Prior t;. Penpraze, 4 Price, 99. see Brearcliff v. Dorrington, 4 De G. & (m) Lodge v. Lyseley, 4 Sim. 70. S. 122. SUBJECT TO PRIOR EQUITIES. 715 ■writiug obligatory, having tlie effect of a statute staple (141) to the Crown, for the true answering and payment of the said arrears and debts (971, 1204). The lands of an accountant to the Crown are bound by this statute to answer the debt of the Crown, though tlie account- ant be not at the time an actual debtor to the Crown, and though no extent be issued against him for several years later (o). The right thus enjoyed by the Crown is now subject to the provision of the Crown Suits Act, 1S65 (p), under which future Crown debts do not affect land as against bondjide purchasers for valuable consideration, or mortgagees with or without notice, until a writ of execution be issued and registered before the execution of the conveyance or mortgage to the purchaser or mortgagee (180) ; but this provision does not {q) take aAvay or abridge any prerogative or right of the Crown in respect of priority or otherwise, over or against the creditors of any debtor or accountant to the Crown ; and save as expressly provided in the part of the act referred to, every prerogative or right of the Crown, as against the land or creditors of any debtor or accountant to the Crown, remains as if that part of the act had not been enacted. The Crown claiming under an extent is, however, like other judgment creditors, subject to prior equities and to such liabilities as the debtor has laAvfully created (r), and it makes no difference if after the Crown debt has accrued, a new lease be taken in the name of the Crown debtor, because the new lease remains subject to the same equities (s) (578). But it was said there would have been a difficulty if the legal estate (o) Nichc.lls V. How, 2 Vern. .189 ; see Co. Litt. 209, a, n. 1. But if on sale iiiulcr an extent, the purchaser obtain an order for payment of his piu-chase- money into the excheqner, and the money is invested with tlie consent of the Crown on the motion of the pur- chaser, and accumulated until it is more than enough to satisfy the Crown debt, the Crown not being liable in such a case to bear any loss, will not share in the surplus which remains after pay- ment of principal, interest and costs. The King v. De la Motte, 2 H. & N. 589. (i^) 28 & 29 Vict. c. 104, ss. 48, 49. (y) Sect. 51. (r) Giles v. Grover, G Bligh, N. S. 292 ; Casberd v. A.-G., Dan. 2.38 ; (i Price, 411 ; The King v. Humpherey, M'Clel. & Yomige, 173; The King c. Lee, G Trice, ;'.G9. (*■) Fector c. Philpott, 12 Pr. 197. 3 A 2 716 EQUITABLE MORTGAGEE PROTECTED had been in tlie Crown, aijainst Avliicli there would then be no equity (^). The prior security will not prevail against the Crown, if it were made in favour of a person in whom it was a breach of duty to the Crown to take it ; as where it was taken by a receiver-general from a person immediately responsible to him in respect of monies due to the Crown. And it seems that in such a case it would be the same if the mortgage were legal (u). In bankruptcy (x), if any real or personal estate or debts of any bankrupt be extended after the bankruptcy by any person under pretence of his being an accountant of or debtor to the Queen, the court may examine upon oath whether the debt was due to such debtor or accountant upon any contract originally made between such accountant and the bankrupt ; and if such contract was originally made with any other person than the said debtor or accountant, or in trust for any other person, the court may order such real and personal estate or debts to be sold for the benefit of the creditors imder the bankruptcy, and such sale shall be valid against the extent, and all persons claiming under it, and any person to whom the said real or personal estate or debts shall be granted or assigned by the court, shall have and may recover the same against any person who shall detain the same. 1294. An equitable mortgagee has the same protection as any other cestui que trust against the subsequent judgment creditor, though a right of priority in the latter, by virtue of his elegit, was once asserted : the arguments being for the most part based on a dictum by Lord Cottenham, on an application for a receiver. The case was, that A., being- indebted to the plaintiffs, to Avhom he had made an equitable security by deposit of title-deeds, with a memorandum, pos- session was taken of the estate under writs of elegit by sub- sequent judgment creditors, to whom the tenants attorned. {t) Casberd r. A.-G., supra, 1 I'h. («) Broughton v. Davies, 1 Pr. 216. 732. (ar) 12 & 13 Vict. c. 106, s. 127. I AGAINST LATER JUDGMENT CREDITOR. 7 1 7 and who cxi)i'e.ssly denied notice of the pUiintifrti title at the time of taking possession. Lonl Cottenham said(y), he found the judgment creditors in possession of a legal title, which, though not to all intents and purposes an estate, was yet a right and interest in the land, which they might hold under the authority of an act of parliament, of which an elegit was the creature ; and, therefore, they had a parlia- mentary title to hold the land as against all persons, unless an equitable case Avere made out to induce a court of equity to interfere. And he observed, that in the case of Casberd v. The Attorney-General {z\ above mentioned, Richards, C. B. dwelt upon the fact, that in that suit, the contest was not between a legal title, and an equitable claim, but that there was no legal title. But when the suit of JVhitworth v. Gaugain came before "Wigram, V. C, on the heai'ing (a), that learned judge (treating Lord Cottenham's observations merely as a de- claration, that he would not decide the point of priority on an interlocutory application, but, on the contrary, meant it to be reserved), gave the first place to the equitable mort- gagee, according to his priority in time ; on the grounds, that a judgment creditor takes the property of his debtor subject to all the equities which aftect it, including the rights of an equitable mortgagee ; that the rights of this latter are absolute and complete, as between himself and the mort- gagor, being only imperfect as between the mortgagee and the judgment creditor, in respect of their liability to be defeated by a fraudulent dealing Avith the legal estate, to which all equitable interests are alike subject ; and that even taking the right of the judgment creditor to be founded on contract, higher than Avhich it could not be put, a contract to give that which did not belong to the debtor could not be implied. And, from the proposition which had been admitted in argument, that a purchaser for value with the legal estate, and Avithout notice, Avould be preferred to a mere equitable (//) Whitworth i\ Gaugain, Cr. & (a) 3 Hare, 416 ; and see Williams Ph. 325. f. Craddock, 4 Sim. 316. (z) Dan. 238, 247. 718 RIGHT OF EQUITABLE MORTGAGEE. claimant, the learned judge dreAv the conclusion, that a tenant by elegit could not be entitled to the rights of such a pur- chaser, inasmuch as all trusts and other equitable interests would then be subject to judgments against the trustee, — the contrary of which we have already seen to be the fact(Z>). Lord Lyndhurst, in affirming the decision, supported these views (c), and remarked, that though it Avere true that Richards, C. B., had thought in Casherd v. The Attorney- General, that if the legal estate had been in the Crown, it would have been difficult to do justice to the plaintiff, because there are no equities against the Crown, yet it was clear from his observations, that in a case between subjects, the posses- sion of the legal estate (</) would, in his judgment, have made no difference, and the execution creditor would have held subject to the equity, and as a trustee for the equitable mortgagee. And in a case {e), Avhich occurred in Ireland, before Whit- worth V. Gaugain was affirmed by Lord Lyndhurst, Lord St. Leonards, holding an equitable mortgagee entitled to priority, over a subsequent creditor by judgment, affecting the legal estate, and in possession by a receiver, and whose judgment was obtained without notice of the mortgage, expressed his full concurrence in the views of Wigram, V. C, and said he had repeatedly acted on the rule, that an agreement binding property for valuable consideration, though equitable only, will take precedence of a subsequent judgment, whatever may be the consideration for it, and Avhether it be obtained in invitum, or by confession. The law thus settled seems not to have been since questioned. And it is applicable to the rights of a judgment creditor who, under the Irish Act 13 & (Jj) And see Hughes v. Williams, 3 but chattels, and no freehold ; whose M. & G. 690. estates are created by divers acts of (c) 1 Ph. 728. parliament." (1st Inst. 42 a.) (d) Meaning such a legal interest as {e) Abl)ott v. Stratten, 3 Jo. & Lat. tenant by elegit has ; as to which note 603. So with respect to incorporeal Lord Coke's observation, — " Tenant by property, as tolls. (Ames v. Trustees of statute merchant, by statute staple, and the Birkenhead Docks, 20 Beav. 332 ; by elegit, have inccrtaine interests in 1 Jur., N. S. 529.) lands or tenements, and yet they have MORTGAGE UNDER POWER. 7 1 9 14 Vict. c. 29 (186j, lias filed and registered an affidavit, by virtue of wlucli he has the same remedies as if a conveyance subject to redemption had been made and registered, i. e. ac- cording to the true construction of the act, a mortgage of the debtor's remaining beneficial interest ; and he obtains no additional priority by virtue of the peculiar terms of the Irish Kegistry Act(/) (1274). 1295. A\'here the equitable incumbrancer of chattels has completed his title by giving notice (1253), he also will have priority over the subsequent judgment creditor without notice, who has sued out his^. fa. on the judgment, just as in the case of real estate, he has priority over the elegit. It has therefore been held ( //), that a judgment creditor had no right to take in execution a ship and cargo, as against prior equit- able mortgagees (under a security made whilst the ship was at sea), who had sent notice of the assignment to the master, and had received immediate possession of the property from him upon the termination of the voyage. But it has been intimated (A), that if the prior equitable title be incomplete, the claim of a subsequent judgment creditor, as well as that of a subsequent equitable purchaser, might prevail. 1296. AVhere after judgment was entered vip, the debtor mortgaged his real estate under a power of appointment be- fore 1 & 2 Vict. c. 110, the judgment was defeated; because the mortgagee took under the instrument creating the power, and his estate was never touched by the judgment ii). But under the statute (s. 13) a judgment charges all lands over which the debtor has any disposing power, which he may exercise for his own benefit without the assent of any other. 1297. As to the nature of the interest which the judgment creditor takes in the incimibered property of his debtor, there was a difference of opinion between the Court of Chancery and the majority of the Court of Queen's Bench ; which (/) EjTo V. M'Dowcll, 9 II. L. C. (//) 1 Hare, 560. 610. (') Doc (L. Wigan v. Jones, 10 Barn, (y) Laugton r. Horton, 1 Hare, 549. & Cr. 459. 720 JUDGMENT AND MORTGAGE OF PEESONALTY. held (A) that a judgment creditor, who having obtained a charo-ino- order upon stock, had given notice to the trustees of the stock, was entitled to priority over a previous mortgagee of the same stock, who had given no notice of his charge ; —upon the ground that under sect. 14 of 1 & 2 Vict. c. 110 (which they construed in the same manner as sect. 13), the creditor acquired by the charging order an absolute interest in all the property to which it applied, irrespective of any prior incumbrance thereon made by the debtor, to which the incumbrancer had not completed his title by giving notice to the trustees ; considering the remedy given by the act to be such as would belong to an incumbrancer in whose favour a charge has been effectually made, and that a chose in action may be effectually charged, notwithstanding a prior incum- brance, if the prior incumbrancer have not completed his title by notice : up to which time the judges considered that the legal interest in the property was not held in trust for the creditoi', but for the debtor. But it was held by Erie, J. (in whose opinion Lord Cran- worth, C. and Turner, L. J., in a case relating to real estate, expressed their concurrence) (Z), that from the time of the assignment of the property, though without notice, it is held in trust for the assignee as between him and the assignor ; neither the latter nor the trustee being able to resist the OAvner's claim, on the ground of want of notice ; and that the compulsory charge intended by the statute must be presumed to be a lawful charge, and therefore a charge only upon such interest as the debtor really possessed {m). And it was further remarked, that the ground for giving a second mortgagee priority over the first, by reason of his having been led to take an incumbered as an unincumbered property, is not applicable to a judgment creditor ; who has {k) Watts V. Porter, 3 El. & Bl. 743; in Kinderleyi). Jervis, 2 Jur., N. S. 603; 2 C. L. R. 1553 ; 1 Jur., N. S. 133 ; 22 Beav. 1. per Lord Campbell, C. J., and Wight- (m) And see Brearcliff v. Dorring- man and Cromjjton, JJ. ton, 4 De G. & S. 122 ; Dunster v. Lord {I) See Beavan v. Lord Oxford, 6 Glengall, 3 Ir. Ch. R. 47 ; Benham v. De G., M. & G. 507 ; 2 Jur., N. S. 121 ; Keane, 1 J. & H. 685 ; 3 De G., F. & and see the judgment of Romilly, M. R., J. 318 ; 8 Jur., N. S. 604. JUDGMENT CREDITOR NOT PURCHASER. 721 not been deceived as to the condition of the title, and as to whom the judgment debtor has been guilty of no deceit in sufferino; judgment. 1298. A judgment creditor is not a purchaser within the act 27 Elizabeth (325), for avoiding fraudulent conveyances against persons who should thereafter " purchase in fee simple, fee tail, for life, lives or years," lands, tenements, and here- ditaments, which have been so fraudulently conveyed ; and he has therefore no priority over a voluntary settlement of earlier date than his judgment (n). For under the old law the judg- ment creditor has no right to the land, having neither Jus in re, nor jus ad rem (o) ; and under the act of Victoria, he has only a charge upon the property or interest which remains in the debtor (1294), whose right to defeat the voluntary deed by a conveyance for valuable consideration, is not a disposing power within the act, the words " disposing power " {p) being there construed in their ordinary meaning. Neither has the judgment creditor of the heir, whether his judgment were entered up before or after the death of the ancestor, priority in respect of the descended estate over the simple contract debts of the ancestor ; because the judgment operates only upon the beneficial interest of the heir, which is subject to the payment of the ancestor's debts (q). The like rule of course applies to the judgment creditor of the devisee and the creditors of the devisor. The judgment creditor also is not considered as a purchaser by \drtue of the 13th sect, of the act, which gives him the remedies of an equitable mort- gagee (876). But a judgment creditor, whose judgment is registered before the execution by creditors of a deed of trust for creditors, will have priority over creditors by whom it is subsequently executed (r). (n) Beavan v. Lord Oxford, 2 Jur., brought are not liable, by the statute of N. S. 121 ; 6 De G., M. & G. 507. fraudulent devises (3 W. & M. c. 14, s. (o) Brace v. Duchess of Marlborough, 5) to execution by the creditors of the 2 P. Wms. 492. ancestor, the heir only being bound. (p) See sects. 11,13. Spackman r. Timbrell, 8 Sim. 253; (q) Kinderley 1-. Jervis, 22 Beav. 1; Richardson ;•. Horton, 7 Beav. 112; see 3 & 4 Will. 4, c. 104. But lands Ex parte Baine, 1 M., D. & De G. 402. bona fide aliened (though only by de- (r) Langhome r. Harland. 4 W. U. posit of deeds) by the heir before action 696. 722 PRIORITIES OF JUDGMENTS 1299. The proviso in the 13th sect, of 1 & 2 Vict. c. 110, does not affect the existence of the charge of the judgment creditor, but only suspends his remedy for a year (s). The charge was therefore held not to have been overridden by the rights of the debtor's assignees (where the debtor had become insolvent within a year from the entering up of the judgment) by the effect of the now repealed Insolvent Act, 7 & 8 Vict, c. 96, s. 21 ; which provided that, after the filing of the insol- vent's petition for protection, no person should avail himself of any execution upon a judgment obtained on a warrant of attorney or cognovit, or any bill of sale, but that any person to whom money was due in respect of any such warrant of attorney or cognovit, or of such bill of sale, might be a cre- ditor for the same under the act {t). 1300. A judgment is not such a lien upon a benefice, as will enable the judgment creditor to rank before incum- brancers earlier in date than the sequestration. The creditor will therefore be postponed to a security affecting the benefice, and obtained between the dates of the judgment and of the sequestration {u). 1301. A judgment creditor who has taken out execution, loses his priority on the return of the writ over so much of the estate as is not sold under the execution, because the writ has no more effect after its return, and the creditor's right to sue out another writ does not continue to him his former priority (x). 1302. Where a judgment creditor received more than the sum for which judgment was entered up, a court of law ordered (y) satisfaction to be entered up, as of the date on which a later judgment was entered up, and directed sums received by the first judgment creditor, since that time, to be («) Ex parte Boyle, 3 De G., M. & War. 276. It being not illegal in Ire- G. 515 ; 17 Jur. 07t>. liind to make a specific charge on a (t) Robinson v. Hedge, 17 Sim. 183; benefice during the incumbent's life. 14 Jur. 784. As to the effect of this («) Williams v. Craddock, 4 Sim. section on a bill of sale, sec Congreve 313. V. Evetts, 2 C. L. R. 1253 ; 10 Exch. (y) Cottle v. Wariington, 5 Bam. & 298. Ad. 447. («) Wise V. Beresford, 3 Dru. & now AFFECTED BY RKGISTRATinx. 723 paid to the second judgment creditor; but not any ol' the sums received prior to the signing of the second judgment. 1303. The necessity for the registration of judgments under the Middlesex and other acts (2) (68), is not affected by 1 & 2 Vict. c. 110, s. 13, and 2 & 3 Vict. c. 11, s. 2, under which judgments become charges when registered in the Com- mon Pleas. The construction of the statutes is, that judg- ments upon lands in the register counties bind when regis- tered in the Common Pleas, from the time of registration under the register acts (a). Hence a mortgage of a term of years, registered in a county registry before the issuing of elegit upon a judgment registered earlier but only in the Common Pleas (b), will prevail over the judgment ; and a judgment registered both in the Common Pleas, and in the county, will be preferred to one which was earlier registered in the Common Pleas, but later in the county (c). On the same principle it has been held, that judgment creditors, registered only in the Common Pleas, were not necessary parties to a foreclosure suit by a judgment creditor registered there, and also in the county {d). A registered judgment excluded from the operation of 1 & 2 Vict. c. 110, as against a mortgagee, by reason of the mort- gage having been executed before the commencement of the act, is not such a charge upon laud as will take precedence of the mortgage, on account of the non-registration of the latter (e). 1304. The docti'ine of notice does not affect the priorities between judgment creditors. Apart from the registry acts, equity would not, on the ground of notice, assist a prior judg- ment creditor to take from one of later date the fruit of his (r) Middlesex, 7 Ann. c. 20, s. 18 ; {/>) Westbrooke v. Blythe, supra. Eiist Hiding, 6 Ann. c. 35, s. 19; North (r) Hughes v. Lumley, 4 El. & Bl. Riding, 8 Geo. 2, c. G, s. IS. 27-t ; 3 C. L. R. 242 ; 1 Jur.. N. S. (a) Westbrooke v. Blythe,.3El. & Bl. 422 ; Neve v. Flood, 33 Beav. 666 ; 10 737; 2 C. L. R. IGC.O; 1 Jur., N. S. 84; Jur., N. S. 607. Johnson !'. Hiddsworth, 1 Sim., N. S. (rZ) Johnson c. Iloldsworth, I Sim., 106; Benham i. Keane, 1 J. & H. 685; N. S. 106. Sf De G., F. & J. 318 ; 7 Jur., N. S. (e) Cathrow v. Eade, 1 Sm. & G. 1096 ; 8 id. 604. 428. 724 PRIORITIES OF JUDGMENTS diligence in first obtaining execution at law. And the judg- ment creditor is not a purchaser or mortgagee within the registry acts ; nor a mortgagee for this purpose under 1 & 2 Vict. c. 110. Neither is the position of a subsequent judg- ment creditor, who claims under a legal title, and generally in invitum, like that of a subsequent purchaser or mortgagee, whose title being equitable only cannot (as it would if taken ■with notice) be used contrary to equity. The priority gained by the earlier county registration of a subsequent judgment will therefore hold good, though the creditor entered it up with notice of an earlier judgment (/). 1305. The decree of a court of equity being only of a personal nature, except so far as it is made a charge upon property by registration under the judgment acts (^), will not prevail over a legal conveyance of later date by virtue of an earlier registration, if it were registered with notice of the conveyance {h). 1306. A creditor whose judgment has been docketed under the old law, is not affected by the closing of the old dockets (175), where his judgment falls within sect. 6 of 2 & 3 Vict. c. 11, which declares, that nothing contained in that act, or in 1 & 2 Vict. c. 110, shall revive any judgment which should be extinguished ; or shall prejudice any judgment as between the parties thereto, or their representatives, or those deriving as volunteers under them. Therefore, where (i) a debtor, after the docketing of his creditor's judgment under the old law, made a voluntary settlement, the creditor was held to retain his priority over the voluntary settlement; though by such construction he gained in effect priority over judgment creditors subsequent to the voluntary deed, but to (/) Benham v. Keanc, supra. It was intimated that for this purpose a judgment would be treated as a con- tract, where it was jjiven as a security under an express agreement to lend money. It will, however, be remem- bered that in contemplation of law all judgments are in invitum. (Per Lord Kenyon, 8 T. R. 61 ; Doe d. Wigan v. .Jones, 10 B. & C. 468.) iff) Even since 1 & 2 Vict. c. 110, the order of a court of equity for the pajTnent of money is only an equitable debt, and will not support a petition for an adjudication in bankruptcy. (Ex parte Blencowe, L. 11., 1 Ch. App. 393.) (A) Lee v. Green, 6 De G., M. & G. 155 ; 2 .Tur., N. S. 170. (i) Beavan v. Lord Oxford, 2 Jar., N. S. 121 ; 6 De G., M. & G. 507. now AFFECTED BY REGISTRATION', 720 whose securities, upon a question of registration under the new law, his judgment had been postponed. 1307. Tlie statute 2 & 3 Vict. c. 11 (175), substitutes for docketing, registration under 1 & 2 Vict. c. 110; and as to a judgment not docketed, but duly registered under the latter act, the statute 2 & 3 Vict. c. 11, s. 5, makes it good against purchasers and mortgagees without notice, to the extent to which a judgment duly docketed under the old law would have been available against them (j). 1308. Under 23 & 24 Vict. c. 38, s. 3 (181) a judgment, in the administration of assets, has no priority over, but ranks as, a simple contract debt, unless it were duly registered, so as to bind lands, at the time of the passing of the act, or after- wards during the life of the judgment debtor (k). The 4th section of the same act, under which a registered judgment has no priority against heirs, executors, or adminis- trators, in the administration of assets, unless, at the death of the testator or intestate, five years shall not have elapsed from the date of the entry thereof on the docket, or the only or last re-registry, does not affect rights in existence at the passing of the act; so that a judgment, not re-registered within five years from the death of a debtor dying before the passing of the act, retains its priority in the administration of assets, as a judgment incapable of being docketed, and not requiring to be registered for the purposes of administration (/). 1309. Nor does the want of registration under this statute affect the priority of such judgments as are obtained against the executors or administrators and not against the testator or intestate (897) ; because the object of the statute was merely to protect executors and administrators against the consequences of paying simple contract debts before judgment debts of which they had no knowledge, and not to affect judg- ments obtained against themselves, and of Avhich they must have notice (m). {j) Doswell V. Reece, II .Jur., N. S. Q. B. 355. 764. (0 Evans v. Williams, 2 Dr. ^: Siu. {k) Waller (or Walter) v. Turner, 324; 11 Jur., N. S. 256. 10 Jur., N. S. 147 ; 33 L. J. (Ch.) (;») Gaunt v. Taylor, 3 Man. & G. 232 ; Kemp r. Waddingham, L. R., I 880) ; 3 Scott, N. R. 700 ; Jennings v. 726 PRIORITIES OF JUDGMENTS 1310. In the administration of assets between one judg- ment and another obtained against the testator, precedency or priority of time is not material. The first execution will be preferred ; and before execution the executor may pay whom he will first {n). But judgments against executors, and decrees obtained by individual creditors for payment out of the assets of the testator, have priority according to date (o). Where a creditor obtains judgment against a legal personal representative, and on the same day a decree is made for the administration of the testator's estate, it is considered that the judgment and decree Avere obtained at the same moment, and the judgment creditor comes in pari passu with other cre- ditors (p). Where the judgment has been obtained against the execu- tors, pending an administration suit, the creditor will not be deprived of the fruit of his diligence, if there have been great and inexcusable delay in the conduct of the suit (q). An attachment in the Lord Mayor's Court against the assets of a deceased debtor does not, however, give any priority over the other creditors (r): nor does a judgment in the same court against a garnishee confer the rights of a judgment creditor in the administration of the garnishee's assets {s). 1311. Although a foreign judgment, not being matter of record in England, will not bind land, or have priority there as a specialty (t), it may have priority in the administration of assets, against property sent by the executors from the country in Avhich the judgment was recovered before the creditors there were satisfied ; because the assets must be administered as if Rigby, 33 Beav. 198 ; 9 Jur., N. S. of the administration in equity of the 1144 ; 33 L. J., Ch. 149. debtor's assets. (n) Wentworth, Off. Executor, 269, (p) Parker v. Bingham, 33 Beav. ed. 14. 535. (o) Morriee v. Bank of England, 3 (q) Larkins v. Paxton, 2 Beav. 219. Sw. .573 ; Abbis ?;. Winter, id. 578, n.; (/•) Redhead v. Welton, 29 Beav. Dollond V. Johnson, 2 Sm. & G. 301. 521. By 13 & 14 Vict. c. 29, s. 11, the rights (.v) Holt v. Murray, 1 Sim. 485. of creditors under certain judgments (t) Harris v. Saunders, 4 B. & C. which are taken away or affected by 411. the act are presened for the purposes IN ADMINISTRATION OF ASSETS. 727 they had remained in that, country, and according to the order of priority there in force («). 1312. A creditor by judgment obtained l)y default against an executor, in respect of his testator's debt, will have prece- dence against the executor's estate, over a later judgment against him in respect of his personal debt (x) ; because, by allowing the judgment to go by default, the executor has admitted assets of the testator, and has bound his own estate (y). If the sheriff be in possession under a writ of execution which becomes void on the bankruptcy of the debtor, and he is also in possession of a writ obtained by another creditor under a valid judgment, the latter will become the first writ, and will have priority over the assignees in the bank- ruptcy (z). Of Priority under the Bankrujjt, Insolvent, and other Acts. 1313. The effect of the provision of the Bankrupt Law Consolidation Act («), that no creditor having security for his debt, or having made any attachment in London or in any other place, by virtue of any custom there used (903), of the goods and chattels of the bankrupt, shall receive upon any such security or attachment more than a rateable part of such debt, except in respect of any execution or extent served and levied by seizure and sale upon, or any mortgage of or lien upon, any part of the property of such bankrupt, before the date of the fiat or filing of a petition for adjudication of bank- ruptcy, is, that unless the execution be completed by an im- mediate sale, the creditor Avill risk the loss of all benefit of his security. Both seizure and sale must be complete before the issuing of the fiat or filing of the petition of adjudica- tion (h). An earlier section of the same act provides (c), that (u) Cook V. Gregson, 2 Dr. 286. (a) 12 & 13 Vict. c. 106, s. 184. (x) In re Higgins, 2 Gif. 562 ; 7 (J) Hutton r. Cooper. 6 Exch. 159 ; Jur., N. S. 403. Young r. Roebuck, 2 H. & C. 296 ; (y) Rock r. Leighton, 1 Salk. 310. Ward r. Dalton, 7 C. B. 643 ; Child r. (z) Graham v. Witiierl.y, 7 Q. B. .Maun, L. R., 3 Eq. 806. 41. (<•) Sect. 133. 728 PRIORITIES IN BANKRUPTCY. all executions and attachments against the lands and tenements of any bankrupt, bond fide executed by seizure, and all exe- cutions and attachments bond fide executed and levied by seizure and sale, before the date of the fiat or filing of the petition of adjudication, shall be valid notwithstanding a prior act of bankruptcy, provided the person at whose suit or on whose account the execution or attachment shall have issued, had not at the time of the execution or attachment, or of the making any sale thereunder, notice of any prior act of bank- ruptcy by him committed. Under this provision (<f), it was held that where an act of bankruptcy of which the creditor had notice took place after execution and seizure, but before sale, the execution was not invalidated. The judicial explanation of this decision is {e), that the act of bankruptcy referred to in the statute is an act prior to the execution, whereas that which was in question was between the seizure and the sale. The result appears to be, that in all cases there must be both seizure and sale before the filing of the petition for adjudica- tion ; and that the execution will be invalidated, although completed by sale, if the creditor had notice at the time of execution or sale of an act of bankruptcy committed before execution ; but not by notice of such an act subsequent to execution. 1314. The Bankrupt Act for Ireland (</), after providing for the rateable payment of creditors having security for their debts, except execution or mortgage creditors ; provides that no creditor, although for valuable consideration, who shall sue out execution on any judgment obtained by default, con- fession or nil dicit, shall avail himself of such execution against other fair creditors, but shall be paid rateably with them. A like section of the English Act, declares {h) that no validity shall be thereby given to any warrant of attorney, cognovit or consent to a judge's order, declared void by the {d) Edwards v. Scarsbrook, 3 B. & {y) 6 Will. 4, c. 14, s. 126, not re- S. 280 ; 9 Jur., N. S. 537 ; 10 Id. 201. pealed by, except where it is incon- (e) Per Wilde, J., in Young v. Roe- sistent with, 12 & 13 Vict. c. 107. buck, supra. But see observations in (A) 12 & 13 Vict. c. 106, s. 184. Griffith on Bankruptcy, 396, 401. PRIORITIES IN BANKRUPTCY. 729 act (2), or to any judgMient or execution or extent entered up, or executed by virtue of any such. A question arose in a foreclosure suit under the Irish act (A), whether a mortgagee should be preferred to a prior judgment creditor by confession. It was agreed, that the mortgagee took subject to existing debts ; and it was argued, that the bankruptcy of the mortgagor did not affect the rights of the judgment creditor as against the mortgagee's ; and by analogy to a decision under the registry acts, that as by the failure of a prior security, for want of registration, a subsequent registered deed will prevail, and with it will carry up a mesne judgment (I), so the judgment in this case should be supported by the subsequent mortgage. But it Avas held, that, upon the bankruptcy of the mortgagor, the judgment became affected by the act, which expressly cut down the judgment creditors to a rateable share with the others. The different fomi of the concluding part of the section in the English act, renders it inilikely that the same question should be raised here, as between mortgagees and prior judgment creditors. It has also been held under the Irish Bankrupt Act, that where the question is simply one of priority, as where A. confessed judgment to W., to secure a debt, then mortgaged to B. for another sum, and then gave W. a mortgage for the amount of a further advance, and of the sum secured by the judgment, the act had no application (m). It was also held in bankruptcy, in Ireland (n), that by the joint operation of the Irish acts, 6 "Will. 4, c. 14, s. 126, and 3 & 4 Vict. c. 105, s. 22, judgment creditors by confession of the bankrupt should only come in rateably with his simple contract creditors, who were creditors before the tune ap- jwinted for the commencement of the latter act. The ques- tion turned upon the construction of the word " creditors," in the proviso in sect. 22 of the latter act, that as against pur- (0 See scets. V.io, 130, 1:^7 (151). (w) BiiUhviii r.Beleher, 1 Jo. & Lat. (A) White V. Baylor, 4 Dru. & War. 18 ; (J Ir. Eq. R. 424. 297 ; In re Perrin, 2 Id. 147. («) In re Perrin, 2 Dru. & War. 147 ; (?) Sparrow v. Coo})cr, 1 Jones, 72. sec Simpson v. Morley, 2 Kay & J. 71. M. VOL. II. 3 B "30 rRIORTTIES IN BANKRUPTCY chasers, mortgagees or " creditors," the judgment should not affect lands, &c., otherwise than as the same would have been affected by such judgment, if the act had not passed. The word "creditors" was construed to include simple contract creditors, and as judgments by confession were, as we have seen (1314) only payable rateably Avith the debts of other fair creditors, it followed that the proviso in the act of Victo- ria became applicable, and the judgment and simple contract creditors were payable rateably. Now the 126th sect, of the Irish act, 6 Will. 4, c. 14, cor- responded with the 108th sect, of 6 Geo. 4, c. 16, in England; and the 22nd sect, of 3 & 4 Vict. c. 105, in Ireland, with the 13th sect, of 1 & 2 Vict. c. 110, in England. So that if the acts had remained in that position, the decision in Re Per r in would have been an authority in like questions in the English courts. But the English Bankrupt Law Consolidation Act (12 & 13 Vict. c. 106) entirely repeals the act of 6 Geo. 4; and does not re-enact the proviso in the 108th sect., as to judgments by default, confession or nil elicit; so that the question in England is now on 1 & 2 Vict. c. 110, s. 13, and 12 & 13 Vict. c. 106, s. 184, which provides, that no creditor shall receive more than a rateable part of his debt upon any security, except in respect of any execution, extent, mort- gage or lien, before the date of the fiat, or the filing of the petition of adjudication. And a judgment being under 1 & 2 Vict. c. 110, s. 13, a charge from the time of registration, and the judgment creditor being in effect an equitable mort- gagee, the judgment, though entered upon a warrant of at- torney, and not followed by execution, is a lien within 12 & 13 Vict. c. 106, s. 184, and entitles the judgment creditor to preference over the general creditors (o). It remains to be noticed, that the later Irish Bankrupt Act, 12 & 13 Vict, c. 107, does not repeal 6 AVill. 4, c. 14, but provides (s. 108) that nothing contained in 3 & 4 Vict. c. 105, shall give any preference to creditors by judgment of any bankrupt ; the effect of which would be still further to strengthen in Ireland the decision in Re Perrin. (o) Ex parte Boyle, 3 De G., M. & G. 515; 17 Jur. 979. AND UNDER THE SnERlFFS' ACT. 731 1316. By the Slicriffs' Act{p) (Ireland) (749), the Court of Chancery may appoint a receiver or extend a receiver already appointed, over the rents and profits of the whole or a sufficient part of the debtor's lands, &c., which are liable to the judgment; and to such receiver are to be paid all rents due or to become due, in respect of the lands, rents and profits received by the receiver appointed under the act, to be applied according to the priority of each creditor, as ascertained by the date of entry of the judgment or enrolment of the recognizance : and the priorities of the creditors are to be determined without reference to any inquisition which one of them may have obtained on any outlawry or other pro- ceeding ; and every creditor who has obtained an order for a receiver under the act, shall be considered to be an execution creditor from the date of the order, so as not to be affected by the bankruptcy of tlie debtor, further than he would be, if his debtor became bankrupt after execution executed. It is also provided (y), that every sum which shall be re- ceived by a receiver, before an order shall be made to extend him to the matter of another petition, shall be distributed under the orders of the court, as if such extending^ order had not been made ; but in distributing the funds to be received after the extending order, the court shall have regard to the rights of the persons by whom that order was obtained, and has power to direct that the costs of the persons by whom the first appointment of a receiver was obtained, in obtaining such appointment, shall be paid out of the funds collected by the receiver, without regard to the priority of the person on whose application the receiver was so ap[)ointed. Although the act thus provides for the administration of the rents be- tween conflicting judgment creditors, it is silent as to the claims of mortgagees or specific incumbrancers coming into conflict with judgment creditors. It has been held, that all arrears of rent, which are paid to a receiver appointed under (p) 5 & G Will. 4, c. 55, sects. 31, (,/) Id. a. 38 32, 33, 37. 3 B 2 732 PKIOKITIES UNDER BANKRUPTCY this act, are applicable (r) in discharge of the debt of the judgment creditor at whose instance he was appointed, to the exclusion even of the plaintifi', where he is a prior incum- brancer. As to arrears due when the receiver is extended, at the instance of a prior creditor, they are in like manner applicable to the debt of the extending creditor ; for the ex- tending order is equivalent to the appointment of a new receiver, and when it is obtained a new and paramount right springs up. And the provision in the act for the costs of the creditor who obtained the first appointment, shows that he was to have no priority other than that which he obtained by his greater diligence, whilst the prior creditor neglected to set a receiver. A different view has however been taken of the law upon these points by several of the judges in Ire- land (s). The receiver appointed by the act comes in the place of an elegit ; but the appointment of a receiver does not decide the question of equitable right between the parties, the creditor who obtains the order being bound by the same equities as those which bind the elegit creditor {t). 1316. The direction in the Insolvent Debtors' Kctiu) that before adjudication the insolvent should execute a warrant of attorney to authorize the entering up of judgment against him in the name of the assignees, gave no priority to the assignees in respect of the warrant of attorney, unless and until the warrant was actually entered up. Hence where an insolvent after his discharge settled after-acquired property for valuable consideration before the assignees entered up judgment under their warrant, the trustees of the settlement were held to have the better right {x). (r) Morrogli v. Iloare, 5 Ir. Eq. R. 4 Id. 427 ; Rule v. Henry, Flan. & Kel. 195; Abbott V. Stratten, 3 Jo. & Lat. 97 ; Sligo v. O'Malley, Id. 300. . 603 ; see also Gresley v. Addcrlcy, 1 {t) Abbott v. Stratten, 3 Jo. & Lat. Sw. 573 ; Thomas v. Brigstocke, 4 Kuss. G03. 64 ; Brooks v. Greathead, 1 Jac. & W. (*/) 1 & 2 Vict. c. 110, s. 87, rep. 176. 24 & 25 Vict. c. 134, s. 230. -^ («) See Barry v. Wilkinson, 3 Ir. (,r) Hawker v. Ilallcwell, 2 Sm. & Eq. R. 121 and 564 ; Coleman v. Mason, G. 498 ; 2 Eq. R. 942. AND OTHER STATUTES, 733 1317. Upon the bankruptcy of the treasurer of a benefit building society, the society is not entitled by virtue of the Bankrupt Law Consolidation Act, sect. 167, which is confined to societies established under the Friendly Societies Acts, or under the combined operation of the Friendly Societies Amendment Act (4 & 5 Will. 4, c. 40, s. 12), and sect. 4 of the Benefit Building Societies Act (6 & 7 Will. 4, c. 32), which is repealed by the Bankrupt Law Consolidation Act, to prio- rity over the other creditors of the bankrupt (u). 1318. The Court of Bankruptcy has no general power to decide questions relating to the priorities, or, it seems, to the validity of securities ; but if such a jurisdiction be assumed by consent, the decision is judicial and subject to appeal, and is not in the nature of an arbitration (x). 1319. Morto-ao-es made to the conmiissioners under the act for granting relief to owners of West India estates (y) have priority over all other mortgages or securities aifecting the property, in respect of which the advances are made ; and the securities given to the commissioners by persons with partial interests in the estates have priority over remainders, rever- sions and limitations, Avhich the owners of such partial inte- rests are unable to bar. But the commissioners can only acquire priority, in cases Avhich fall within the act; and where, by reason of the case being not within the act, they cannot get priority, the court will not allow them to complete a loan. They were, therefore, restrained from lending money to repay costs already incurred of restoring injured estates, in part of which other persons were interested as prior mort- gagees, having a receiver and manager in possession {z). 1320. The priorities of mortgagees of public works, and of the property of public companies, are frequently regu- lated, cither by the special acts of parliament under which (m) Ex parte Bailey, 5 Dc G., M. & (y) 2 & 3 Will. 4, c. Vi:,, ss. 21. G. 380. 22. (.r) Kc Thompson, Fonbl. B. R. 2D ; (.-) Borradaile v. Brickwood, 1 Y. & Ex parte Bland, G De G.. M. & G. C. 60. 757. 734 PRIORITIES UNDER STATUTES. the undertakings are prosecuted, or by general acts incorpo- rated therein. The general tendency of these regulations is to give equal priority, irrespective of date, and a right to l)roportionate parts of the property comprised in the respec- tive mortgages, according to the extent of the mortgagee's advances (a). (a) See the acts relating to turnpike tolls, and other acts contained in the Appendix. LIABILiTV K) DKHT. 735 CHAPTER X. OF THE LIAIMLITV UF THE INCUMBERED ESTATE TO THE PAYMENT OF THE DEBT. 1321. Of Cases in which the incumhered Estate is primarily liable to, or cn- titled to be exonerated from, tlie Debt. 1354. Of Cases i7i which two or more Estates are liable to contribute to the Debt. 1361. Of Cases in which incumbered and otlier Estates will be marshalled. Of Cases in ivhick the incumbered Estate is primarihj liable to, or entitled to be exonerated from, the Debt. 1321. Every mortgage implies a loan, and every loan implies a debt, for which the personalty of the borrower is liable, though he have neither entered into bond nor cove- nant for payment of it ; but the debt is of the nature of simple contract only, unless there be a bond or covenant to give it the character of a specialty (a). Now the mortgagee, when his mortgage is of the ordinary kind (12), may at his discretion use either or both of his remedies against the mort- gagor (603), in respect of this his personal liability, and against the mortgaged estate; and the mortgagor if he transfer the mortgaged estate, and his personal representa- tives if he die, though no longer in possession, still remain liable to the mortgagee for the debt; the estate also remaining liabl.e in the hands of the purchaser, heir or devisee of the mortgagor. 1322. But the election by the mortgagee of his remedy does not aflect the principle that the personal estate of the (rt) Thomas v. Terrj-, Gilb. Eq. R. v. Price, 1 Id. 200 ; Ancastcr v. Mayer. 110 ; Meynell v. Howard, Pre. Ch, 61. I Bro. C. C. 454 ; Ex parte Digby, Jac. See King v. King, 3 P. W. 358 ; Howcl 235. 736 EXTENT OF LIABILITY mortgagor is primarily liable for the debt, wliicli in case of his death will, as between his real and personal representa- tives, be therefore generally payable by the latter ; and though upon a transfer of the estate in the lifetime of the mortgagor, the transferee, who generally contracts to take upon himself the burden of the debt, can then have no such equity against the transferor; yet either by the terms of such contract for payment, or by other acts, he sometimes so adopts the debt as to create between his own real and personal re- presentatives an equity smiilar to that which arises on the death of the original mortgagor. Out of such transactions, and out of the original subjection of more than one estate to the mortgage, and of the testamentary or other dispositions of the mortgagor for payment of the debt, arise the doctrines of Exoneration, Contribution, and Marshalling of se- curities. 1823. As to the law of Exoneration; First, the ancient rule is that as between the personal representatives of the mortgagor and the heir or devisee of the whole or part of the mortgaged estate the personalty of the mortgagor shall be primarily liable to the debt, and shall exonerate the mort- gaged estate, which is treated only as a collateral security (c?). The same principle as to the liability of the general assets entitles the legatee of a chattel specifically devised, but which the testator has pledged, to have the debt discharged by the executor, or to be placed in the same situation as if that duty had been performed (.")• This rule is to be understood as applying only to such se- curities as have been made to secure an actual debt due from the mortgagor at the time of the mortgage ; in which class is included unpaid purchase-money, whether consisting of prin- cipal money charged on the estate in the ordinary way, or of an annuity secured by a rent-charge issuing out of the es- {(1) Pockley v. Tocklcy, 1 Vern. 3G ; in preference to the customary or or- Cope V. Cope, 2 Salk. 449 ; Bartho- j)hanage part ; because till the debts be lomew V. May, 1 Atk. 487 ; Belverlerc paid, the custom cannot take effect. V. Rochfort, 5 Bro., P. C. 299. And (Ball v. Ball, cited 1 Vern. 37, n., and in by the custom of London the mortgage Eider v. Wagner, 2 P. W. 335.) debt must be paid out^of the personalty (e) Knight v. Davis, 3 M. & K. 358. en- PERSONAL EST AT K. 737 tate (/). But it does not api)ly to a transaction in whicli no debt is created, such as a security upon an estate for a provi- sion (^) under a marriage settlement, even though there be a covenant for payment ; unless the provision were first secured by a covenant creating a debt, to which the covenant for securing the charge upon the estate was manifestly auxili- ary {h). Nor does the doctrine apply to a security for a loan Avhere the security only, and not the personal ability or cir- cumstances of the borrower, were considered, as in the case of the South Sea loans, which were raised only on the credit of the stock {{) ; nor yet to money raised by a tenant for life, or other person who has only a limited interest, under a power (J) (703). And the rule itself has been altered by the statute com- monly known as "Locke King's Act,"(/05 which declares that when any person shall after 31st December, 1854, die seised of or entitled to any estate or interest in any laud or other hereditaments which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, and such person shall not by his will or deed or other document have signified any contrary or other inten- tion (1352), the heir or devisee shall not be entitled to have such mortgage-debt discharged or satisfied out of the personal estate or any other real estate of such person, but the laud or hereditaments so charged shall as between the diflferent per- sons claiming through or under the deceased person, be pri- marily liable to the payment of all mortgage debts with which the same shall be charged, every part thereof according to its value (1355), bearing a proportionate part of the mortgage debt charged on the whole thereof. Provided, that nothing in the act shall aifect or diminish any right of the mortgagee to obtain full payment or satisfaction of his mortgage debt, either out of the personal estate of the person so dying as (/) Yonge r. Furse, 20 Bcav. 380. G. 661. (ff) Lanoy r. Athol, 2 Atk. 44 -t ; (() Per Lord Talbot, in King r. King. Graves v. Hiiks, 6 Sim. 398 ; Loose- 3 P. W. 358. more v. Knapman, Kay, 123. (j) Ex parte Digby, Jac. 235. (h) Field V. Moore", 7 De G., M. & (Z-) 17 & 18 Vict. c. 113. RIGHTS OF SUBSTITUTED OWNER. aforesaid or otherwise, or shall affect the rights of any per- son claiming under any will, deed or document made at the passing of the act, or to be made before the 1st January, 1855 (1350). 1324. Second. AVhcn the mortgaged estate has de- scended or has been devised by the mortgagor, or when he has sold it in his lifetime, then, and in some other cases to be presently mentioned, inasmuch as the person who has become possessed of the estate did not contract or become primarily responsible for the debt, his personal estate shall not, as be- tween his representatives, be liable to exonerate the mortgaged property (Z). This rule also applies to a person who raises money by mortgage under a power [m), and who, if he pay off the mort- gage, will be an incumbrancer for the amount, though he take no assignment, and though the ultimate reversion be vested in himself (1419) (/z). And also to one who, having mortgaged his estate to secure the debt of another, stands in the position of a surety and is entitled to be exonerated by the principal debtor (o). 1325. Within this equity stands the wife (524) who has joined in mortgaging her estate to secure money raised for the benefit of her husband (p), and the husband who has cove- nanted to pay, in a mortgage for raising the wife's portion out of her estate {q). 1326. Where the estate, whether separate or not, of the wife, or over which she has a power of appointment, and whether or not it be settled to her separate use (r), is mort- gaged, and the money is paid to her, or to her and her hus- (Z) Lawson v. Hudson, 2 Bro. C. C. 57 ; Scott V. Beccher, r> Mad, J)G ; Tweddell v. Tweddcll, 2 Bro. C. C. 101, 152 ; Woods v. Huntingford, 3 Ves. 128 ; Cope v. Cope, 2 Salk. 440. (fft) Jenkinson v. Ilarcourt, Ivay, 688. (n) Per Lord Eldnn, Ex parte Digby, Jac. 235 ; Kediiigton v. Kedington, 1 Ba. & Be. 131. (o) Lee V. Rook, Mos. 318 ; Pcirs v. Pcirs, 1 Ves. 521 ; Evelyn v. Evelyn, 2 P. W. 659. (j}) Huntington v. Huntington, 2 Vcm. 437 ; Tate v. Austin, 1 P. W. 2CA ; per Lord Ilardwickc, Peirs r. Peirs, 1 Ves. 521 ; Lancaster v. Evorp, 10 Bcav. 154. (q) Bagot V. Oughton, 1 P. W. 347. (?*) Hudson t'. Carmichacl, Kay, C13 ; Aguilar v. Aguilar, 5 Mad. 414 ; Thomas V. Thomas, 2 Kay & J. 79. SURETY AND WIFE, 739 Land, it is considered jjrimd facie that it was borrowed for his benefit ; and his estate is first applied, as for payment of his own debt, nnless the i)resnin[)tion be rebutted by proof on the part of the liusband, that the whole or some part of the money did not come to his hands (a-). And the result Avill be the same, where the husband has paid oif the mortgage, and has taken an assignment of it in trust for himself (^). But if an estate, already in mortgage, descend (u) upon a married woman, or if a feme sole mortgage before mar- riage (.r), although the husband, upon an assignment cove- nant to pay the money, the wife or her heirs after the hus- band's death shall not compel payment out of his personal estate, because the debt was not originally his ; and his cove- nant is but an additional security to the lender, and does not change the nature of the debt. On the other hand, if the Avife come to redeem such a mortgage after the husband's death, where he has paid oif part of the mortgage debt, the same principle is carried out actively in favour of the hus- band's estate ; Avhich is entitled to stand in the mortgagee's place for all sums paid by the husband, in reduction of the debt ( ;/). 1327. As to money, the whole or the greater part of which was applied in payment of debts incurred by the wife dam sola, or which Avas paid into the hands of the wife and converted by her to her own use as her separate money, or which she (having the absolute disposal thereof) has appro- priated to the use of her husband, although it seems that parol evidence of such intention will not be received contrary to the temis of the deed ; or, it seems, if a settlement be made on the wife which can be taken as a consideration or equivalent for the money raised by the mortgage ; there will be no indemnity to her estate though the husband have given a bond or cove- (s) Pocock r. Lcc, 2 Vcni. C04 ; (0 ITuiitington v. Ilnntingtou, '2 Tate r. Austin, 2 Vcrn. G8!) ; 1 1'. Vein. 4;57 ; 2 Bm. P. C. 1. Wms. 205; Partcriclic ?'. Powlct, 2 («) Bagot v. Oii<rhton, 1 P.Wnis.347. Atk. 383 ; Earl of Kinnoul v. Money, (.r) Pitt v. Pitt, T. & K. ISO. 3 Sw. 202, n. ; sec Kuscombc v. Hare, (i/) Pitt v. Pitt, T. & R. 180 : and 6 Dow, 1. see Nelson v. Booth, 3 Jnr., N. S. i>."l. 740 EXONERATION OF ESTATE nant (z) ; and it will make no difference if part of the money Avas applied to his use, as the court Avill not attribute a di- vided intention to the parties. The wife will also have no claim to exoneration, if, after her husband's death, she desire his executor to apply his personalty in payment of the lega- cies given by his will, whether the personal estate was so applied before or after this direction (a). And even Avhere the money was raised for the benefit of the husband alone, the wife will have no claim, if the mort- gage was made in execution of a joint power in the husband and wife to raise money by mortgage, and she took the estate subject to the power ; because the estate conveyed to the mortjjaccee was not that of the wife alone, but was created under the power, and in conformity with the purpose of the settlement (Z»). 1328. A Avidow claiming; dower has no rio;ht to be indemni- fied by the heir against her husband's mortgage ; subject to which she must take as a disposition pro tanto (c) ; but she will be exonerated as to ordinary debts, to which the land was not liable during the husband's life (d). 1329. It has been said, that where the wife comes for exoneration of her mortgaged estate against the assets of the husband, all his other debts shall be preferred to this claim (e) ; and the dictum was cited approvingly by Lord Thurlow (/) ; but its correctness has been doubted (^) by Wood, V.-C, even where the wife's mortgaged estate is not settled to her separate use : the right of the wife being better than that of the heir, Avith which it had been compared, because, unlike him, she can assert it against legatees ; and, by virtue of an implied assumpsit betAveen husband and wife, she is considered to have the full right of a surety to be satisfied out of her (z) liewisv. Nangle, Ambl. 150 ; per Ch. 106. Lord Thurlow in Clinton v. Hooper, 3 (e) Jones v. Jones, 4 K. & J. Sfil. Bro. C. C. 200 ; Earl Kinnoul v. Money, {d ) Spire v. Hyatt, 20 Beav. 621. 3 Sw. 208, note. (e) 1 P. Wms. 265. (a) Clinton v. Hooper, 3 Bro. C. C. (/) 3 Bro. C. C. 211 ; 1 Ves. jun. 200. 186. (i?>) Scholcficld V. Lockwood, 32 Beav. (y) Kay, 622. 434 ; 9 Jur., N. S. 739, 1258 ; 33 L. J., MOUTGAGKI) BY WIFE. 741 luisband's estate. And where the mortgaged estate was sei>a- rate property (/t), and the wife joined the husband in a mort- gage, which expressed that the money was paid to them both, and he covenanted for repayment, it Avas held to be clear, that the wife should be treated as a distinct person, having the same right as a stranger to be exonerated out of her husband's estate, as against his other creditors. 1 330. AV^here the wife joined her husband in granting an annuity on her separate estate, as avcU as on other property, to which the husband was entitled jure mariti, she was held to be only a surety in the grant of the annuity, which, upon his insolvency, was ordered (z) to be kept down first out of the income of his property, as between her and hmi, his assignee and subsequent annuitants. Where the mortgaged estate of the wife is exonerated out of the husband's assets, none of his creditors have a right to stand in the place of the mortgagee, as against the wife's estate (k). Where the wife's estate, subject to a mortgage, was settled to her separate use, and during coverture the husband cove- nanted, upon an assignment, for payment by him or his -wife, and received the rents during the coverture by her consent, having also verbally promised before the settlement to pay oft' the mortgage ; it was held, that his estate was not liable at the suit of the widow, though it might be so as between it and the mortgagee {!). 1331. Courts of Common Law will allow an equitable plea under the Common Law Procedure Act, 1854, in an action against a husband, on his covenant in a mortgage of the wife's estate, of facts which show a prima, facie right to exonei'ation, and do not require further elucidation by in- quiry (m). Such a plea should, therefore, be met by replica- tion and not by demurrer. (/() IIiuIsDii V. Ci\rmiiliiu>l,Kiiy.C1.3; v. Gee, 1 Ves. 252. 18 Jur. 8J1 ; rarteriche c. Powlct, 2 (I) Christmas i'. Christmas, Sel. Ca. Atk. 383. in Ch. 20. (/) Aguilar i\ Agiiilar, 5 Mad. 414. (m) Gee r. Smart, 3 Jur., N. S. 103G (/,;) Per Lord Hardwiekc, Koliinsou ((J. H.) 742 CHANGE OF ORIGINAL LIABILITY. 1332. The rule concerning the admission of parol evidence in such mortgages appears to be that, though such evidence is not admissible to show that a transaction purporting by the instruments themselves, or by them and by other evidence not parol, to be for the husband's benefit, was of a different kind ; it may be shown that the debts of the wife were paid with the money, or that it was in fact applied to some other than the purpose for which it was raised, or that, under the circumstances, the husband's estate is not primarily liable (n). Hence, evidence is admissible, that the widow, in conversation with the executor, admitted an agreement that the debt should be discharged out of the estate, and disclaimed her right to exoneration. And this was compared to the case of the heir telling the executor that he would not press him for exonera- tion, and so inducing him to pay the legacies ; but it is not material, under such circumstances, whether the legacies given by the husband be paid before or after the widow's admission, or whether the admission induced the executor to pay them. 1333. Third. The person who originally contracted the debt may shift the primary liability, which the old law at- tached to his personalty, to the mortgaged, or some other estate ; or may fix it upon the personalty, or on another estate, in cases in which it would fall upon the mortgaged estate under Locke King's Act (1350); and he who has acquired the mortgaged estate by descent, devise, or purchase, or is otherwise not primarily liable for the debt, may adopt it, or show an intention that it shall be borne by some other than the mortgaged estate. In considering these rights, it will be convenient to show : — (1). Under what circumstances the personalty of the owner of the mortgaged estate, who was not originally liable for the debt, may become so, by his subsequent dealing with the debt or the estate, or by other events in his lifetime. (2), AMiat expression of intention will exonerate the per- sonalty of the owner of the estate, whose personalty was (w) Clinton v. Hooper, 3 Bro. C. C. Carmichael, Kay, (520 ; Thomas v. 201 ; 1 Vcs. jun. 173 ; sec Hudson r. Thomas, 2 Kay & J. 79. ACTS OF SUBSTITUTED OWNER. 743 orifrinally liable ; or the mortgaged estate, where it was originally liable either (a) under the old law or {}}) under Locke King's Act : and also the general effect of that act. 1334. (1). The covenant or agreement of the purchaser or devisee of the Avhole or part of an estate mortgaged or incumbered with a charge, to pay or take upon himself the debt and interest, and, in the case of a purchase, to indemnify the vendor against it (o), or the covenant of one of several purchasers, to take upon himself a certain part of the debt and to indemnify the purchasers of the other parts (^p), does not subject the personal estate of the covenantor, as between his own real and personal representatives, to the payment of the debt; because the indemnity is such as would be com- ])elled by a court of equity -without any specific contract for the purpose (</). 1335. The rule is the same, where the purchaser, devisee, or heir of the mortgaged estate, enters into a covenant for payment with a transferee of the mortgage (?•) ; the covenant being merely treated as a necessary incident of the transfer, and a liability only as regards the transferee ; and this even where the covenant is to pay a different and higher rate of interest than that reserved by the mortgage (.?) ; and though, where the estate was devolved upon tenants in common, dis- tinct provisions have been made for re-conveyance of the different shares, upon payment of corresponding parts of the (o) Twcddcll r. Twcddcll, 2 Bro. C. C. 101, 152 ; Hamilton v. AVorlcy, 2 Vcs. J. 62 ; Butler v. Butler, 5 Ves. r>M ; Biirham v. Earl of Thanet, 3 M. & K. 007. (j») Forrester v. Leigh, Ambl. 171. (q) Per Lonl Elclon in AVariiig v. Ward, 7 Ves. 3;i2. (r) 1/einan r. Newnliaiii, 1 Ves. 51 ; Billingluirst i'. Walker, 2 Bro. C. C. G04 ; Shaito i: Shafto, 1 Cox, 207. As to the lialiility of the purehaser uiuler such a oovoiiarit see Allan! r. Kinil)er- ley, 12 M. .V W. 410. Where the covenant is in general terms, it is for panncnt aoconliiig to the provisions of the mortgage deed. (Trott v. Smith, 12 :M. & W. GS8.) (x) Shafto I'. Shafto, per Lord Ehlon, in Waring v. Ward. In Donisthorpe r. Porter, 2 Eden, ](;2, Amid. COO, it was said, and in Hruce r. Morice, 2 De G. & S. 389, decided, that a new cove- nant for payment (the interest in the latter ease being r«sen'ed at a different rate), with a new ])roviso, ga\ e a right to exoneration ; Imt tlie circumstances in the latter ease were somewhat s]"»e- eial, and the dictum in the fonner does not agree with the other authorities re- ferred to. 744 ACTS OF SUBSTITUTED OWNER. whole debt, which is covenanted to be paid in the like pro- portions {t). 1336. In the case of a purchaser the case is not altered, by reason of an imperfect or abandoned intention to pay the debt, shown by his naming the mortgagee a party to the con- veyance, for the purpose of concurring therein upon receiving the siun due to hmi (?/). But it is otherwise, if the purchaser enter into a special contract with the mortgagee for payment of the debt, and accept from him a benefit which he could not have had from the vendor (x), such as a covenant for quiet enjoyment until default. 1337. Again, if, instead of making a mere transfer of the security, the purchaser, devisee, or heir, borrow a sum of money, making a new conveyance by way of mortgage on the security of the whole, or of part of the estate, to a new mort- o-ao-ee, free from the original mortgage, the former debt is at an end, and the new one is the personal debt of the owner of the estate (y). And if the latter unite mortgages of his own to those which already affect the estate, and covenant for payment of the aggregate debt, the whole sum which is due on the consolidated security will be considered as his personal debt, and the court will refuse to separate the debts which he himself has united (z). So where the devisee of an estate charged with portions settled it, and covenanted not merely to pay the portions, but also to convey the estate discharged of them, it was held to be an adoption of the debt, and not merely a covenant of in- demnity (a). 1338. On the other hand, it is evidence of an intention that the real estate shall remain primarily liable, when the owner, having the entire control as well over it as over his (t) Hedges v. Hedges, 5 De G. & S. 007 ; Bagot v. Bagot, 10 Jur., N. S. 330 ; 16 Jur. 034. 1109; 34 Beav. 134. (?/) Barry v. Harding, 1 J. & L. (jz) Woods v. Huntingford, 3 Ves. 475. 128; Lushingtoiiv. Sewell, 1 Sim. 435; (ar) Earl Oxford v. Rodney, 14 Ves. 'rowiisluiid v. Mostyn, 26 Beav. 72. 417. ((t) Biirhani v. Earl Clarendon, 10 (v/) Waring r. Ward, 7 Ves. 332 ; Hare, 126. Barham v. Earl Thanet, 3 M. & K. RIGHTS OF REPRESENTATIVES OF HEIR. 715 personalty aliens it, either to a volunteer or purchaser for valuable consideration, (especially if he does so expressly sub- ject to the mortf>;ages,) Avithout showing any indication, by a covenant with the grantee, of an intention to exonerate it, or otherwise of an intention to pay the debt out of his personal estate {b). Or if, being tenant for life with remainder to such uses as he shall appoint, he exercises the power only for the I)urpose of mortgaging, without appointing the fee to himself; and so leaves himself in the position of a person with a limited interest in an incumbered estate ; who, if he should discharge the mortgage, is assumed to do so for his own benefit (c) (1418). 1339. Another form in which this question arises is in a further stage of devolution of the mortgaged estate ; viz., where the person, whether heir or devisee of the estate, in whose hands it was entitled to exoneration out of the person- alty of the deceased mortgagor, himself becomes entitled to that personalty, and dies, without having discharged the mortgage. The same personalty in the hands of his exe- cutor (rf) shall not exonerate the estate in the hands of his heir, notwithstanding the liability which the first heir or de- visee was under to be sued at law on the covenant in the original mortgage {e). Neither will the covenant by an heir so circumstanced, to indemnify against the mortgage debt another estate which by law he was bound to indemnify, amount to an adoption of the debt (f). 1340. This doctrine has been applied to a case, in Avhicli the first devisee of the estate, being also the executor of the mortgagor, but not having proved the Avill, had not acquired a complete title to the personalty out of which the estate was entitled to be exonerated, or had an opportunity of discharg- (b) Jenkinson r. TTarcoiirt, Kay, 688 ; there; Ilchcstcr c. Caniarvon, 1 Bcav. Alen r. Hoiran, LI. & ti. t. Sugd. 2'3] ; 209 ; see liickling r. Boyer, per Lord Vandeleur t: Vandelcur, id. 241, n. Truro, 3 M. & G. 635. (c) JenkinsoTi v. Harcourt, snjtra. (e) In re Taylor, 8 Exch. 384 ; see (r/) Scott r. Beecher, 5 Mad. DC ; 11 Geo. 4 & 1 Will. 4, c. 47. Earl Clarendon v. Barhani, 1 Y. & C. (/) Rchester r. Carnarvon, 1 Bia\ . C. C. 688 ; Evans r. Smithson, cited 209. M. VOL. II. 3 C 746 RIGHTS OF RErRESENTATIVES OF HEIR. iiiij; the mortgage thereout {g). In this decision, however, the doctrine of Scott v. Beecher appears to have been followed as an arbitrary rule of law, without special reference to the particular facts of the one case, or to the grounds of decision of the other ; and particularly to have been made Avithout regard to the fact, that the person who acquired both the mortgaged estate and the personalty of the original mort- gagor had died so soon after the latter, that she had no opportunity of applying the personalty in payment of the debt, and could not, therefore, have elected to continue it as a charge on the mortgaged estate ; which election in Scott v. Beecher was considered to have been made, though it was thought unnecessary to press it as a primary ground of deci- sion : or to the question whether the common heir of the first devisee and of the mortgagor was not entitled to claim the personalty of the latter as an exonerating fund, on the ground that it was still unadministered and applicable for the purpose. Upon this latter ground Wood, V. C, had, in fact, though the case was not brought under the notice of Lord Cranworth in Sioainson v. Sioainson, refused to hold (li) that the person- alty of an intestate mortgagor, to whose estate no administra- tion had been taken out in the lifetime of his heir, should be applied by a subsequent administrator both of the mortgagor and his heir, to exonerate the mortgaged property in the hands of the common heir of both of them ; pointing out how- ever that, according to the present law as laid down by the several cases cited above, the equities are not, as they formerly were (i), affected by the argument that, because the personalty of the heir or devisee, who has become possessed of both real and personal estate, has been increased by permitting the charge to remain, his successor to the estate ought to be exonerated out of the personalty derived from the original (^) Swainson v. Swainson, C Dc G., vedere v. Rochfort, 5 Bro. P. C. 299 ; M. & G. 648; 3 Jur., N. S. 145 ; sec and see observations of Knight Bruce, S. C. 4 id. 1011. V. C, in Earl Clarendon i: Barham, 1 (A) Bond V. England, 2 K. & J. 44. Y. & C. C. C. G88. (i) See Gilb. Lex Pract. 315 ; Bel- BENEFIT TO PERSONALTY OF HEIR. 747 morto-ao-or. lint it .should be observed, that the ground of decision aorainst the exoneration of the real estate in Scott v. Beecker, upon which, and upon the other cases decided on its authority, the determination in Swainson v. Swainson was founded, was (as is correctly stated by Wood, V. C, in the early part of his judgment in Bond v. England) that the heir of the devisee took an estate charged with a debt to which the ancestor was not personally liable ; which corresponded Avith the facts in Bond v. England; and not, as was afterwards stated by the V.-C, that the same person had both funds under his control, which, as he said, did not happen in the last-mentioned case. 1341. The converse of the principle, that because the per- sonalty of the heir or devisee has benefited by the security, it ought to exonerate the mortgaged estate, has been applied to throw the debt on the mortgaged estate, where the person- alty had not received benefit {k) ; so that money raised by the heir, by mortgage, for discharging the ancestor's simple con- tract debts, for which the heir was not liable, was thrown, with the original mortgage debt of the ancestor, primarily on the realty. But in a modern case(/), in which specialty and mortgage debts of the devisor were paid off by the devisee by means of a new mortgage, it was considered that the bor- rowing of the money, and the giving a new mortgage, made the devisee's personal estate primarily liable, notwithstanding the purpose for which the loan was applied. This of course would not affect a mortgage made by the owner of an estate, to raise money with which the estate had been charged by the former owner {ni). 1342. (2) (a) (1333). As to the expression of intention which will suffice to exonerate the personalty of the mort- gagor when it was liable for the debt, or the mortgaged {li) Earl Taukerville v. Fawcett, 1 beneficially to the trustee. Cox, 237 ; 2 Bro. 0. C. 57 ; and see (?) Ba<rot i-. Bagot, 10 .Tur.. N. S. Terkiiis r. Baynton, 2 P. W. C44, n. ; 11G9 ; 34 Bcav. 134. where however there was a ti'iist for (w) See Noel v. Lord Ilenler, Dan. sale of part of the realty for payment 822, 211. of debts, and tlic residue was devised 3c2 748 EXPRESSION OF INTENTION estate when the personalty was not liable. Although for the purpose of exonerating the personalty it is not noAv considered necessary that the intention should be declared by express words, or in terms which raise an irresistible conclusion, it must be so clearly expressed as to convince the mind of the judge, that the testator intended to charge the real estate Avith, as well as to exonerate the personalty from, the debt. The intention must be soug-ht as well in the context of the will as in any jjarticular expressions. The relative value of the real and personal estates does not affect the question, and the various circumstances attending the testator's dispositions, his appointment of the same persons to be executors and trustees, the direction to pay funeral expenses out of the real estate, the manner of giving the residuary personalty, the giving it to a tenant for life of the devised estates, and the like, are matters which, far from affording any certain con- clusion, may lead to entirely different inferences according to the circumstances in connection with which they are found (w). 1343. The exoneration will operate in favour only of the person for whose benefit the testator intended it ; so that if the gift of the personalty intended to be exonerated should lapse by the death of the legatee in the testator's lifetime, or should otherwise fail, the exemption will fail also, whether the personalty has vested in a subject or in the Crown (o) ; unless an intention can be found to apply the exonerating fund in discharge of the debt, irrespective of the benefit to the intended legatee of the fund exonerated {p) ; or, with an intention to exonerate, there be no particular gift of the fund exonerated ; for it must then be supposed that the exoneration was meant for the benefit of whoever should take that fund {g). The principle, that the benefit is intended only for the particular donee of the fund to be exonerated, is applied also where one estate has been directed to contribute to the mortgao-e debt (71) See Ancaster v. Mayer, 1 Bro. AVaring v. Ward, 5 Ves. 670 ; Dacre v. C. C. 454 ; Watson v. Brickwood, 9 Patrickson, 1 Dr. & Sm. 186. Ves. 447 ; Hancox v. Abbey, 11 Ves. (^) See Noel v. Henley, Dan. 322 ; 179 ; Bootle v. Blundell, 1 Mer. 193. Noel v. Noel, 12 Pr. 214. (t>) Hale V. Cox, 3 Bro. C. C. 321 ; (g) Milnes v. Slater, 8 Ves. 295, TO EXONERATE PERSONALTY. 749 cliarged on anotlicr, on failure of the devise of the estate in- tended to be relieved (r), 1344, The sufficiency of the expression of intention to exonerate the personalty, like other questions which depend upon the construction of doubtful instruments by different judges, at different periods, is often difficult in proportion to the number of authorities. It has, however, been well estab- lished, that the personalty is not relieved by a devise of the mortgaged estate, or of that and other property " subject to the mortgage," or " subject to the payment of the mortgage," or " subject to debts," or by any other equivalent expression not amounting to a condition or direction that the devisee should pay the debt (s). The question becomes more difficult when words of that character are employed ; but the favour formerly shown to the heir led the courts to struggle against the exoneration of the personalty, even under words of this import. Thus in an old case (t), a devise of land to E., upon condition that she paid all his debts and legacies, was held only to amount to a charge on the realty, but not to relieve the personalty ; partly on the ground that the executor had a particular legacy only, and not the residue. And in another case (m), a devise to C, he paying all debts and legacies charged on the estate, and after his decease to B., was held to be of the like effect ; but this also was decided on a special, and a stronger reason, viz., that the tenant for life was 70 years of age, the charge 2, GOO/., and the estate but 600/. per annum. 1345. On the other hand, in a more modern decision (x), the words '^ he paying a mortgage thereon," have been treated as a clear expression of intention that the debt should not be paid out of the personalty ; though this was also supported by the special circumstances of a gift of part of the personalty (r) Carter c. Barnardiston, 1 P. W. C, in Jcnkinsun v. llarcourt, Kay, 6S8; 505. per Wigram, V.-C, Johnson v. Child, (s) Serle v. St. Eloy, 2 P. W. 386 ; 4 Hare, 94. Astley V. Tankenille, 3 Bro. C. C. 545; (t) Mead v. Hide. 2 Vera. 120. 1 Cox, 82 ; Bickhani v. Crutwell, 3 M. (;/) Bridgman v. Dove, 3 Atk. 201. & C. 763 ; Goodwin v. Lee, 1 K. & J. (j-) Lockhart r. Hardy, 9 Beav. 379. 377 ; 1 Jur., N. S. 226 ; per Wood, V.- 750 EXONERATION OF PERSONALTY less than the mortuao'e debt lor the exonerution of the estate, and, therefore, implying that no other part of the personalty was to be so applied. AYords of a similar kind, accompanied by a direction that neither of the devisees of the testator's real estates should take possession of any of the premises until the testator's debts should be paid, have also been held to constitute a charge on the devised estates (?/). The expression " I hereby charge and make liable my said estate," for moneys for which the estate alone was liable, and also (in the same sentence) for monies for which the testator was personally liable, were also held to create an active charge, making the estate prhnarily liable for the personal debt, by reason not only of the words of the charge, but of the applica- tion of them to the different kinds of debt (z). 1346. The personal estate will not be discharged by par- ticular provisions, adjusting the payments which should be made on account of the debt by successive takers of the estate, if such provisions do not clearly charge the estate with the payments («). 1347. The personalty will, however, be exonerated by a general devise of lands for payment of the debts of the testa- tor ; because the description includes the mortgage debt {b) : as it also will be, by a direction to apply a particular part of the real estate in payment of a particular debt, because so much only of the real estate being devised as will remain after payment of the debt, the devisee cannot claim more than has been given him (c). 1348. This principle Avill also be applied to prevent ex- oneration for the benefit of a person who was manifestly in- tended to take subject to the charge ; and for the purpose of ascertaining the intention in such a case, the court will not (y) Wisden v. Wisden, 2 Sni. & G. 396 ; 18 Jur. 1090. (r) P^vans v. Cockcram, 1 Col. 42.^. (a) Watson v. Brickwood, 9 Ves. 447. ( h) Serle v. St. Eloy, 2 P. W. .38f;. The observations of Sir W. Grant in Hancox V. Al»l)ey, 11 Ves. 179, seem to imply the contrary, but are explained by Lord Cottenliam as applicaljle to the particu- lar circumstances of the case ; see Bick- ham V. Cruttwell, 3 M. & C. 763. (c) Ilancox v. Abbey, 11 Ves. 179 ; Hale V. Cox, 3 Bro. C. C. 322. EXONERATION OF ESTATE. 7')\ only look at the -svill, but also at scttlciucnts to \vliicli the devised estates are subject (^0- A specific bequest of the gcnerg,! personal estate has also been held to show an intention to exonerate it(fc'). But where the testator specifically bequeathed the sur[)lus of his person- alty, computing it at a certain amount after payment of his debts, it was adjudged that the mortgage, as one of the debts, should be paid out of that fund, though it Avas thereby reduced below the amount specified (y). 1349. As to the expressions which will throw the burthen of the mortgage debt on the personalty of a testator, who was ' not liable to pay it, neither a general charge in his will for payment of debts (//), nor even a direction to pay them out of his personal estate (A), will be sufficient. And where a testator expressed by his will an intention to pay off part of the mortgage debt, but failed to do so, a direction that the intended balance should be paid out of a particular fund was held not to exonerate the mortgaged estate (i). l>ut a devise of property upon trust for sale and payment of the mortgage debt, Avith a declaration that the mortgaged estate shall be held free from incumbrances, will exonerate it (/t) ; and if the fund provided be insufficient, the balance must be made good by the residuary personalty in discharge of its primary lia- bility, though that fund may also have been bequeathed free from debts. The mortgage debt has also been held to be adopted by a surety, so as to discharge the mortgaged estate, where he devised it to the principal debtor and directed that (rf) Ibbetson v. Ibbctson, 12 Sim. (g) Lawson r. Hudson, 1 Bro. C. C. 206 ; Lady Langdale v. Briggs, 8 l)e 57 ; Ancastcr r. ilayer, Id. 454. G., M. & G. 3!)1 ; see Noel r. Ik'iili'j, (h) Jcukinsou v. Harcourt, Kay, Daii. 322. 688. (e) Blount /•. Ilipkius, 7 Sim. 50. (() Lomax r. Lomax, 12 Beav. 285 ; But it seems that the principle last- 13 Jur. 1064. See the effect of actual mentioned niifiht have liccn applied ; i>aymcnt and an inaccurate rcccij)!, there being a trust to sell the residuary Leiiwiek r. I'otts, 8 l)c G., M. & Ci. real estate for payment of debts, in- 506. eluding the mortgages and a gift over (^■) Brooke r. Warwick, 2 Dc G. & of the surplus. S. 425 ; 13 Jur. 547 ; 1 II. & T. 142. (/) llawcs r. Warner, 2 Vera. 477. / > ■52 EXONERATION OF PERSONALTY all monies payable out of it, under the mortgage, should be discharged out of a fund which he provided for the payment of his debts (/). 1350. (2) (b) (1333). The statute called Locke King's Act (1323) does not affect the rights of a person who claims under a will dated before the 1st January, 1855, though it were republished by a codicil dated after that day, pro- vided the claim be not wholly or in part under a devise which operates only by virtue of the republication (//i); and notwithstanding the expression that the mortgaged heredita- ments shall be primarily liable, as between the different per- sons claiming through or under the deceased ■person^ the estate is liable, though the personalty be vested in the crown, and not by a title derived through or under the deceased mort- gagor; it being considered that this part of the clause only shows that the debt should be borne rateably, where it is charged on several estates {n) (1355). In case of intestacy, however, the heir of a mortgagor who has died after the 1st January, 1855, cannot have the benefit of the proviso in the act, on the ground that he takes under the limitation in the mortgage deed to the mortgagor and his heirs ; because he takes immediately from his ancestor and not under the deed (o). 1351. The act applies to copyholds as well as to free- holds (7^), but notwithstanding the large signification of the words mentioned in the first part of the act, leaseholds and chattels real are excluded by the latter part of it (5'). As to the nature of the charge referred to, it applies as well to an equitable mortgage by deposit of title deeds (r), as to a more formal or technical security ; it did not originally apply to the lien of a vendor for unpaid purchase-money (5), (I) Mushet V. Cliffe, 12 Jur. 739 ; 17 (p) Piper v. Piper, supra. L. J., Ch., N. S. 117. (/y) Solomon v. Solomon, 10 Jur., (»0 Rolfe V. Perry, 9 Jur., N. S. N. S. 331. 8.">3. (r) Pcmbrooke v. Friend, 1 J. & II. in) Dacre v. Patrickson, 1 Dr. & 132. Sm. 186. (.9) Hood v. Hood, 3 Jur., N. S. 684. {o) Piper V. Piper, I J. & II. 91 ; 6 See Barnwell v. Iremonger, 1 Dr. & S. Jur., N. S. 1026. 260. uxiir.R LOCKE king's act. 7.03 tljough such a lien is now hy a later statute (0 included in it as to the wills of persons dying after 31st December, 1867. And it does not affect a charge which does not form a defined and specific security on an ascertained estate. It therefore does not apply to a general charge upon real estate, in aid of personalty, to pay debts or legacies, until the amount of the charge has been accurately defined, and the devisee has taken the estate subject to it ; at which time it will constitute a mortgage within the act (^^). The intention to exonerate the real estate only extends to the value of the fund made chargeable by the testator ; if that fund be insufficient the residue must be borne by the mortgaged estate (u). And the act does not affect the rights of the parties where, in consequence of a provision by the testator of another fund for payment of the mortgage, there is no longer a question between the testator's general person- alty and the devisee or heir of the mortgaged estate (w). 1362. The meaning of the words "any contrary or other intention" has been the subject of much diflference of opinion ; not merely as to the construction of the document from which the intention is to be gathered, but also as to the principle of construction which ouijht to be followed. It was thought by Lord Campbell, that the land could only be relieved from the charge by an expression of intention, corresponding to that which under the old law would have relieved the personalty, viz., by words either expressing, or clearly indicating, that the fund made primarily liable by law was to be freed from the charge. And he therefore held(:r), that a direction by a testator that his debts should be paid /;// his executors did not sufficiently show that the morto-ao-ed estate was to be discharged. In other cases {y) directions that debts should be paid, or that they should be paid by the exe- cutors, out of the personal estate, were held not to mark an (0 ») & 31 Vict. c. 60, s. 2. (j-) Woolstcncroft v. Woolstencroft, («) Hepworth v. Hill, 30 Bcav. 470; 2 De G., F. & J. 347 ; 6 Jur., N. S. 8 Jur., N. S. 0(iO. 1170,ovcrriiling:thcjudgmeutof Stuart, C'O Kodhousei'.Mold,3r)L.J., Ch.67. V.-C, 2 CJif. 11)2. (w) Greated r. Greated, 2fi Beav. (y) Pembrooke t'. Friend, 1 J. & II. 621 ; Allen v. Allen, 30 Bcav. 39o. 132 ; Rawson r. Harrison, 8 Jur. 875. 754 LOCKE king's act. intention to exonerate the mortgaged estate ; though a devise of that estate in settlement, and of other real and leasehold estates, and personalty, to trustees for conversion and pay- ment of debts and legacies, with a gift of the ultimate resi- due, Avas considered to be sufficient for the purpose {z). 1363. The construction adojited by Lord Campbell was afterwards disapproved, as an extension, not warranted by analogy of the rule of the old law which w^as founded upon the favour shoAvn to real estate, to the construction of a sta- tute Avhich proceeded upon a different principle (a); and it was held that the . intention ought to be collected from the will or deed, according to the ordinary rules of construction ; not only from the words, but also from the effect of the dispo- sitions contained in the whole instrument. The bequest of personalty subject to the payment of all just debts, or (which is the same thing) of debts simply, or a bequest of residuary personalty upon trvist to sell and pay debts (even though specialty debts be mentioned, which do not include the mortgage debts {b)), — or a direction to executors to pay debts out of monies to arise from the sale of personal estate, or any other provision of a separate fund for the debt (c), have been therefore held to show that the mortgaged estate was exonerated by the fund provided ; the circumstances that the testator had not distinguished that debt from other debts, that no special mode of payment had been provided for it, and that the devisee of the morto;ao;ed estate was also an executor, Avho Avas directed to pay the debts, — and the consideration already noticed under the old laAv (1347), that a gift of property after payment of a debt is a gift of so much only as remains after payment of it, and therefore cannot be claimed by the donee free from the debt, being considered to strengthen the above conclusion. This construction has hoAV- o (z) Newman v. "Wilson, .31 Bcav. 33. {h) Porcher i'. Wilson, 12W.R. 1001. («) See judgments of Wood, V.-C, (c) Mellish i\ Vallins, supra; Eno r. in Mellish v. Valliiis, 2 .J. & II. 194, Tatam, 4 Gif. 181 ; 9 Jur., N. S. 224, and 8 Jur., N. S. 804 ; and Turner, 481 ; Smith v. Smith, 3 Gif. 263 ; 7 L. J., in Eno v. Tatam, 9 .Jur., N. S. Jur., N. S. 1140 ; Moore v. Moore, 1 481 ; and see Kolfe v. Terry, 9 Jur., De G., J. & S. 602 ; Maxwell r. Hyslop, N. S. 853. L. R., 4 Eq. 405. TRTXnrLES OK CONTllimTIOX. 755 ever been modified by another ])rovisiou of the explanatory statute (f/) already mentioned (1351), viz., that, in the will of any person who may die after 31st, December 1867, a general direction that the debts, or all the debts, of the testator shall be paid ont of his personal estate, shall not be deemed to be a declaration of an intention contrary to or other than the rule established by the original act, unless such contrary or other intention shall be further declared by words expressly or by necessary implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate. Of Cases in which two or more Estates are liable to contrihute to the Debt. 1354. Having: considered the circumstances under which the fund, which in the first instance is liable to the mortgage debt, retains or is exonerated from its primary liability, it remains to be observed, that, as between the mortgaged estates and other property of the owner of them, or as be- tween different estates subject to the same mortgage, one part may become liable to contribute to the i)ayment of the debt, either primarily, or by the deficiency of the estate or fund upon which the primary liability has been fixed. The equities which thus arise between the different funds are adjusted under the doctrines of Contribution and Mar- shalling, which are extensively applied, not only as between the owners of funds liable to the payment of mortgage debts, but also in the general administration of the assets of the de- ceased mortgagor, the consideration of which is beyond the scope of this work. These rights act reciprocally, and rest upon the principle that a fund, which is equally liable with another to pay the debt, shall not escape because the creditor has been paid out of that other fund alone ; and on the other hand, that a creditor who has the means of satisfying his debt out of several funds shall so exercise his right as not to take from another creditor or claimant the fund which forms his only security. {d) 30 & 31 Vict. c. GO. 56 WHEN SEVERAL ESTATES 1355. Premising that the payment of tlie mortgage debt, from which the personal estate has been exempted, or which the personal estate, Avhere it is the primary fund, is insuffi- cient to satisfy, must in the next place be made out of estates Avhich have been specially devised for payment of the mort- gage or other debts of the person liable (c) ; then out of descended estates (d) ; and, failing these, out of estates speci- fically devised, but charged with the payment of debts {e) ; and then such as are comprised in a general or residuary devise (/) : the eifect of these equitable doctrines is shortly as follows : — If several estates, whether of one or of several owners (^ ), be mortgaged for, or subject equally (and not one as surety or collateral security for the other (A) ) to, one debt ; or if the o\yner of several estates, having mortgaged one of them, charges his real estate with or devises it in trust for payment of his debts (z), and the estates descend or are devised to dif- ferent persons (for the rule will not hold where they come to the same person (J) ), the several estates shall contribute rate- ably to the debt ; being valued for that purpose, after deduct- ing from each estate any other incumbrance by which it is affected ; and a vendor's lien being reckoned like any other incumbrance (k). 1356. But the right of contribution will be prevented by the right of marshalling from being applied against an estate which is liable to other creditors of the debtor (/), or which not being charged with his debts, and even though consist- (c) Powis V. Corbet, 3 Atk. .556; Donne v. Lems, 2 Bro. C. C. 2r>7 ; Bartholomew v. May, 1 Atk. 487 ; Tweedale v. Coventry, 1 Bro. C. C. 240 ; Phillips V. Parrj-, 22 Beav. 279. (fl) Gallon r. Hancock, 2 Atk. 424, 4.30 ; Bamewell v. Cawdor, 3 Mad. 453. (e) Davies v. Tojip, 1 Bro. C. C. 524 ; Donne v. Lewis, 2 Id. 257. See 3 & 4 Will. 4, c. 104. (/) Jarm. Wills, 2, 588, ed. 3 .See D.ady v. Hartridge, 1 Dr. & S. 236 Hensman v. Fryer, L. R., 2 Eq. G27 Kotheram v. Rotheram, 26 Beav. 465 Bcthell v. Green, 34 Beav. 302. (ff) See Aldrich v. Cooper, 8 Ves. 390 ; Clarke v. Brcreton, 1 Jo. 165 ; Johnson v. Child, 4 Hare, 87. ( // ) Marquis of Bute v. Cunynghame, 2 Russ. 275 ; Stringer v. Harper, 26 Beav. 33 ; 4 Jur., N. S. 1009. (i) Carter v. Barnadiston, 1 P. W. 505 ; Irvin v. Ironmonger, 2 R. & M. 541 ; Middleton v. Middleton, 15 Beav. 450. See Eyre v. Green, 2 Col. 527. (J) Stronge v. Hawkes, 4 De G. & J. 632. (U) Barnwell r. Iremonger, 1 Dr. & S. 55. (I) Bartholomew v. May, 1 Atk. 487. 9- ARE LIABLE TO COXTRIKUTE. tot ing of leaseliolJ and other jjersonalty, is liable under a speci- fic or pecuniary, as distinguished from a residuary, bequest ; the devisee in such cases being obliged to take the mortgaged estate as he finds it{m). And so if one of several estates charged with the payment of debts be expressly made liable to the payment of a mortgage debt to Avhich it is subject, it will not be liable to contribute with the other estates to the general charge (n). 1357. By the sale of part of an incumbered estate with a covenant against incumbrances, the burden is thrown upon the residue in favour of the purchaser; and if part of the estate have been given in exchange, the equity is the same as if it had been sold for money, and no liability is thrown upon the land received in exchange (o). If a person bound to elect between two estates have mort- gaged one of them before election, and afterwards elect to take the other, the first must be taken subject to the mort- gage, but shall be exonerated by the other (/>). 1358. An insurance oflfice, by the rules of which a policy will become void upon the suicide of the insured, except to the extent of any interest acquired for valuable consideration or by way of security, holds out that the owner of such an inte- rest will be entitled to payment ; and, being a principal debtor in respect of the policy, has no equity in case of the suicide of an insured person who has mortgaged the policy with other property, and in the absence of fraud, to come upon that pro- perty for contribution (q). 1359. There is no equity between the representatives of a lunatic, which confers a right to call for the restoration to one estate or fund, of money w^hich has gone or been applied in relief of another. A charge on the lunatic's real estate, which (to) O'Neal r. ^road, 1 P. W. 694 ; (o) Kirkham v. Smith, 1 Ves. 2o7 ; Davisr. Ganliiicr, I'P. W. 190 ; Wvthe see Lloyd v. Johnes, 9 Ves. 64, as to V. Henuiker, li M. & K. 635 ; Ilalli- the effect of a sale by the court, well r. Tanner, 1 R. & M. 633 ; Cope ip) Rumbold r. Rumbold, 3 Ves. ■f. Cope, 2 Salk. 449. See Symons c. 65. V. James, 2 Y. & C. C. 301. (q) Solicitors and General Life Assu- («) Wisden v. Wisden, 2 S. & G. ranee Society v. Lamb, 2 De G., J. & 396 ; 18 Jur. 1090. S. 251 ; 10 Jur., N. S. 739. 758 CONTRIBUTION ; ESTATES OF LUNATICS devolves upon him as personal representative of the owner of it, will tlierefore sink for the benefit of his heir (r). And where a lunatic Avas seised of estate A. ex parte paterna, and ex parte materna of B., which was mortgaged, and the pro- duce of timber cut upon A. was applied in discharge of the mortgage, it was held that A. should not be recouped (5). There appears to be no certain rule as to the rights of the real and personal representatives of the lunatic, when the mortgage has been paid off out of his personal estate by the direction of the court. It seems to have been considered by Lord St. Leonards {t), after an elaborate review of the autho- rities, that if the court, in the exercise of a prudent manage- ment, ordered payment of the charge out of the lunatic's property, derived from savings out of the real estate, the heir ousrht to hold free from the charge. But where a mort- gage debt, w^hich had been contracted by the ancestor of the lunatic (whose personalty was therefore not liable to it), was discharged out of his personal estate, the Court of Appeal in Chancery ordered the amount to be raised out of the mort- gaged estate, and to be paid to the administratrix (u). When, under the Lunacy Act of 1853, money advanced for the permanent improvement, security or advantage of the lunatic's land, and which is to be a charge upon and raiseable out of the lunatic's interest in the land, is paid out of the lunatic's general property, the charge may be made to some person as a trustee for him, as part of his personal estate (x). And when under the same act(?/) money raised out of land or stock has been applied to any of the purposes there men- tioned, which include the discharge of any incumbrance upon the lunatic's estate, the person whose estate is mortgaged and (r) Compton v. Lord Oxendcti, 4 son v. Scaly, 2 Atk. 414; Ex parte Bro. C. C. 396 ; 2 Ves. J. 261. Broomficld, 3 Bro. C. C. 515 ; Ex parte (») Anon., cited by Lord Eldon in Ex Clayton, 1 R. & M. 369 ; Ex parte parte riiillii^s, 19 Ves. 123. Ilinde, Ambl. 706, Mr. Blunt's note and {t) Lord Leitrim v. Enery, 6 Ir. Ei|. cases there ; In re Degge, 4 Bro. C. C. R. 355 ; following Ex parte Griinstone, 236 ; and Shelf. Lun. 304, ed. 2, and Ambl. 706 ; Ex parte Ilinde, id. n. other cases cited there. (w) In re Leeming, 3 De G., F. & J. (x) 16 & 17 Vict. c. 70, s. 118. 43 ; 7 Jur., N. S. 115 ; and see Serge- (//) Id. s. 1 19. AiNU infants: marshalling. 759 his representatives have the like interest in the surplus monies remaining after the purposes of the security have been an- swered, as if no mortgacre, &c. had been made ; and the sur- plus monies are declared to be of the same nature and charac- ter as the estate mortgaged. A provision in a mortgage deed, executed under the autho- rity of the statute, that a certain estate shall be the primary fund, will not aftect the subsequent operation of the ^v\\\ of the lunatic, made before the lunacy, and by which other estates have been specially devised for the payment of debts (z). 1360. If the personal estate of an infant be applied in payment of his mortgage debt, the debt mil also be kept alive as personal estate («). Of Cases in which incumbered and other Estates will he marshalled. 1361. The doctrine of marshalling as between incum- brancers on several estates, which are also subject to one security, enables the incumbrancer with one fund to control, for his o-svn benefit, the application of the securities of another who has several ; and to that extent gives an interest in those securities to the holder of the single fund ; as a subsequent mortgagee of one estate, who pays off the prior mortgage upon the same and another estate, makes them both applica- ble for his own original debt. But the doctrine of marshal- ling is of an entirely different nature from the right of the subsequent mortgagee to throAV his own debt upon an estate not originally made liable to it, but comprised in the security of a prior mortgagee (1339). The latter right depends upon the puisne mortgagee's redeeming the earlier one, and so settino; the benefit of his securities. It is an equity arising out of the act of redemption (Z* ), and when acquired enables the puisne mortgagee to hold both estates, Avith all the rights Avhich the prior mortgagee had whom he redeemed. (z) Freeman v. Kllis, 1 IL & ^l. 7."8. Clianihers ou Infancy, 505, &c. («) Per Lord Ilaidwicke, Leys v. (_b) Titley t'. Davics, 2 Y. & C. C. Price, 9 Mod. 221 ; per Lord Eldon, C. 404. Ex parte Phillips, 1'.) Vcs. 122; see 7G0 PRINCIPLES OF MARSHALLING. 1362. It" the owner of" two estates mort";ao:e them both to one person, and then one of them to another, without notice, the second mortgagee may insist, under the docti'ine of mar- shalling, that the debt of the first shall be satisfied out of the estate not mortfja^ed to the second, so far as that will ex- tend (c). And a fortiori he may do this, if there be a cove- nant or declaration in the second morto;ai»:e that the estate is free from incumbrances {d). He may also gain his end by means of redemption, /. e., by paying off the prior mortgagee, and stepping into his place. In the one case, the first niort- gagee's debt is primarily throAvn upon the estate not in mort- gage to the second ; in the other, the second mortgagee throws upon both estates his own debt, which by contract was only charged upon one of them. But whilst by redemp- tion he may throAV his own debt upon both estates, not only in the simple case of two mortgages above supposed, but also (so long as the prior mortgagee retains both of the estates which form his security) where there are subsequent incum- brances upon either or both of the estates, and against the subsequent incumbrancers, his means of relief under the doctrine of marshalling are far more limited, for the reason that equity refuses to marshal securities, where in aiding one incumbrancer it would injure another (e). Thus if estates X. and Y. be morto-ag-ed first to A. and secondly X. be mortgaged to B., and thirdly Y. to C. (/) ; or if X. be mortgaged to A., secondly to B., and thirdly X. and Y. again to A., to secure the original debt and a further advance, and fourthly X. and Y. to C. (^)(1939): here in {c) Lanoy v. Duke of Athol, 2 Atk. 444 ; Aldrich v. Cooper, 8 Ves. 381 ; Tidd V. Lister, 10 Hare, 140, 157 ; 18 Jur. 543 -, and 3 De (J., Mac. & G. 801 ; Gibson v. Seagrim, 24 L. J. (Cli.), N. S. 782 ; 20 Bcav. 014. (rf) Avcral! v. Wade, LI. & G. temp. Sngd. 259. (e) Aldrich r. Cooper, 8 Ves. 382 ; Averall v. Wade, LI. & G. temp. Sn<id. 252. The Court of Admiralty, not- withstanding this principle, has mar- shalled in favour of a master's claim for wages, against the owners of the cargo ; on the ground that the master, who was deprived of the ship and freight by his personal contract to pay the wages, had made no such contract with the owners of the cargo. Sed qu. The Edward Oliver, L. R., 1 Ad. 379. (/) Bugden v. Bignold, 2 Y. & C. C. C. 377. ig) Barnes v. Racstcr, 1 Y. & C. C. C. 401. rRTNfirLES OP MARSHALLING. 761 either case A. may resort for his whole debt either to X. or Y. Now, if A. be compelled to take his debt exclusively from Y., X. will be left free for B., but at the expense of C. But this would clearly be inequitable ; for even if C. had notice when he took his security, he had notice of no more than that A. had a security upon Y. (h) ; and he ought not to lose the benefit of his contract in favour of B., who claims under no contract against that estate. B., having lent his money (m estate X. only, and having taken no charge upon or cove- nant respecting Y., has no more than a potential equity, as it has been called, against that estate, which by means of the subsequent security given to C. was prevented from fully arising. He has no equity to prevent the mortgagor from jiledging estate Y. to C. ; none to prevent A. from giving up his security upon it, and so depriving B. even of his chance of getting a title by redeeming A. The only equity which he has is in respect of so much as the mortgagor had not alienated for value. Yet if, in such a case, the court refused all interference, lest C, the third incumbrancer, should lose his security, it Avould expose B., the mesne mortgagee, to the like injury ; for if A. were left to take his whole debt out of estate X., the second mortgagee, B., would lose his security ; whilst to the third, C, who has no better equity, and is later in time, estate Y. would be left open. Therefore, in ordinary cases, the court will throw the debt of A. upon both his securities, rateably according to their value, and so will leave the residue of each to satisfy the subsequent incumbrancer, to whom it was specifically mortgaged (/). 1363. But if the third incumbrancer be only a judgment creditor, or take his security pendente lite, and the second claimant for valuable consideration have a declaration or co- venant that the estate is free from incumbrances, he shall be (/() A pnrrhascr is not bound to take (i) Barnes v. Racster, 1 Y. & C. notice of all the equities arising out of C. C. 401 ; Bugden c. Bignold, 2 Y. a particular deed or suit. (Averall v. & C. C. C. 377 ; Titlcy v. Davies, id. Wade, supra ; Shalcross v. DLxoii, 7 390 ; and see Gibson i;. Seagrim. 20 L. J. (N. S.) Oi. ISO.) Beav. G14; 24 L. J. (Ch.), N. S. 7S2. M. VOL. II. 3 D 762 RIGHTS OF JUDGMENT CEEDITORS protected, and shall have the advantage of marshalling ; and in his favour the prior incumbrancer shall be throwTi upon the estate which is not liable to the second ; whose security shall not contribute for the benefit of the third (/t). The estate of the second incumbrancer having once acquired the right to be indemnified at the expense of the other, his right is not to be disturbed by a subsequent judgment creditor or person, who, taking subject to the same equities as the debtor (1291), is not in the situation of a purchaser for valuable consideration Avithout notice, and cannot oblige the mesne incumbrancer to pay off debts against which the mortgagor covenanted to exonerate his estate. The like has been held (l) in favour of the tenant in tail under a settlement made by the mortgagor for valuable consideration, in which he had covenanted to exonerate the settled estates from incumbrances, where the bills were filed by the judgment creditor and by the assignees in insolvency of the mortgagor and settlor ; so that this dis- tinction must be considered to be founded upon the circum- stance that the subsequent incumbrancer or assignee of the mortgagor is not in the position of an assignee for valuable consideration without notice, but is subject to all the equities and liabilities of the person under whom he claims ; and the rule as concerns innocent purchasers remains unaffected (m). 1364. AVhere the subsequent incumbrancer is in the posi- tion of an assignee for valuable consideration without notice, or without such notice as will fix him Avith the equity arising out of the covenant with the earlier mortgagee (w), it is con- sidered that the latter would not be entitled to exoneration against the subsequent incumbrancer, though he would have been so against the mortgagor, if he had remained the abso- lute owner of the estate subsequently mortgaged. And when the mortgagees are appointees under a power, it is clear that there would be no exoneration against the later incumbrancer, {It) Avcrall v. Wade, LI. & Goo. 1 De G., Mac. & G. 393. temp. Sugd. 2.02 ; Going /;. FarrcU, (m) See Sugd. V. & P. 1028, ed. Beat. 472. 11; 746, ed. 14. (J) Hughes V. Williams, 3 Mac. & (/?) 1362, note (A). G. 683 ; 10 Jnr. 41.'^; Chappell v. Kees, AND OF SURETIES TO MARSH ALI.. 703 any more than there would be against the persons who would have taken in default of appointment (o). 1365. It has also been held, that where an estate is settled subject to judgments created by the tenant for life, arrears of interest on such judgments may, as against the remainderman, be thrown upon that estate, in favour of a judgment creditor of the tenant for life after the settlement, who can only resort to an imsettled estate (p). 1366. A surety is entitled to the benefit of the right of marshalling (1461). And it has been determined that where the vendee of goods, which have been purchased but not paid for, has indorsed over the bill of lading for valuable conside- lation by Avay of pledge only, the vendor having a right to enforce his lien by stoppage in transitu (1490), subject to the security, becomes as to his interest in the goods a surety to the indorsee for the vendee's debt ; and may therefore compel the indorsee to have recourse for the payment of his debt to other goods pledged to him by the vendee, or to the proceeds arising from the sale of them, in ease of his own liability as surety (g). But, as in the case of the mortgagee's right to hold several securities (1249), his equity of marshalling overrides the right of the surety to have the benefit of all securities for the debt which he has discharged, where he has not entered into a contract which will prevent the mortgagor from conferring upon a puisne mortgagee of one of the estates the ordinary right to have the securities marshalled (r). 1367. Marshalling may be enforced where the mortgaged estates have descended upon difierent persons (5), also where the debtor has become bankrupt (t) ; because the assignee stands in his place, and is bound in all respects as he is : and in favour of an incumbrancer Avhose charge is only volun- (o) Stron-r V. Iliiwkes, 4 De G. & J. (?•) Soutli v. Bloxam, 1' IIoiii. & 632. Mil. 457 ; 11 Jur., N. S. 31'J. (p) 111 re Fox, o h: Cli. R. 541. (.«) Lanoy r. Atholl, 2 Atk. 446. (^) In re Westzinthuti, 5 B. & Ad. (0 Baldwin v. Belcher, 3 Dm. & 817; see Broadbent y. Barlow, 7 Jur. War. 173; Ex park- Hartley, 1 Dca. N. S. 479. 2S8 ; 2 M. & A. 4y6. 3 d2 764 SECURITIES MARSHALLED AFTER TAYMENT. tary («). And if the mortgages be by the husband and wife, of the >dfe's estates, the mortgagee Avhose security is only upon one estate is entitled to marshal against the wife surviving ( I'). 1368. A mortgagee may resort to funds not comprised in his security, where that has been swept away by the Crown muler an extent(ar): and the Crown itself has been compelled to resort to the real estate, that other creditors, to whom the personalty alone was liable, might not be disappointed (?/). 1369. If the paraphernalia of a widow be taken by the mortgagee, under his bond or covenant, she will be held to be a creditor for their value against the mortgalged estate (z). 1370. The mortgagee who takes a security upon part of an estate, the whole of which is subject to debts, legacies or other charges, is entitled, as against the mortgagor, to throw those charges upon the part not mortgaged to him (a); and the mortgagee of the chattels of a bankrupt, which having been left in the bankrupt's possession were seized and sold by the landlord under a distress for rent, was held entitled to marshal against the assignees of the bankrupt mortgagor, so as to throw the debt of the landlord exclusively upon property not subject to the mortgage (Z»). The mortgagee may also marshal against a purchaser of the whole estate without notice of the mortgage, who, taking the estate, with all the equities to which it is subject, is bound by this equity of the mortgagee to be paid out of the whole estate, after satisfaction of the charges (c). 1371. The courts apply the doctrine of marshalling not merely before the debt of the mortgagee or creditor who lias the double fund has been paid (d) ; but if he be already satisfied, they permit the disappointed creditor to stand in ('«) Aldridge v. Forbes, 9 L. J. (N. ]] TIarc, 9.3. S.), Ch. .37; 4 .Jur. 20. (b) Ex parte Stephenson, 17 L. J. (v) Tidd V. Lister, 10 Hare, 140, 157; Uank. (N. S.) 5; 12 Jur. G; De G. 586. 18 Jur. 54.3. (c) Finch v. Shaw, 18 Jur. 935; 19 (x) Aldrich V. Cooper, 8 Ves. 382. Beav. 500 ; 5 H. L. C. 905 ; 3 Jur., (y) Sagittary v. Hyde, 1 Vem. 455. N. S. 25. (z) Aldrich v. Cooper, 8 Ves. 382 ; {d) Aldrich v. Cooper, 8 Ves. 382 ; Tipping V. Tipping, 1 I'. Wms. 730. Trimmer v. Bayne, 9 Ves. 209 ; see (a) HajTics r. Forsbaw, 17 Jur. 930; Wake v. Wake, 17 Jur. 545. EQUITABLE TRINCIPLE OF SIARSIIALLING. 765 his place, against the estate upon which the creditor with the double fund would otherwise have been thrown, for the amount which he has taken out of the subsequent creditor's security. And this wall equally be done, where the single fund Avas applied for convenience by the order of the court itself (f). But the court will neither interfere with the first mortgagee's right to take his debt out of that part of his security Avhich first becomes available, upon the ground that other funds are comprised in his security (y); nor compel him, when he is executor of the mortgagee, to apply the per- sonalty as it comes to his hands in discharge of the debt {g). 1372. A pecuniary legatee is entitled to stand against the devised estate, to the extent to which a mortgagee has been paid out of the personalty (Ji) ; and so he is when the vendor of the estate has been paid out of the purchaser's personalty, the effect of the lien and of the mortgage being in this respect alike (?'). 1373. The right of marshalling rests upon the general principles of equity in the administration of property, and has been held to be unaffected by the circumstance, that one of the funds to which the prior creditor could resort, was not assets for the payment of the debt of the creditor who sought the aid of the equity ; so that a mortgagee of freehold and copyhold might be thrown upon the latter by a specialty creditor, even before copyholds were assets for the payment of specialty debts {k). Nor can it be successfully argued against the right to marshal, that the fact of the several securities having become vested in the holder of them by distinct transactions, shows that the one was meant to be liable only in case the other {() G Wynne v. Edwaids, 2 Russ. ((') Pollcxfcn v. ]Moorc, 3 Atk. 272 ; 289. Selby v. Selby, 4 Russ. 336 ; Sproule (/) Wallis V. Woodyear, 2 Jur., N. r. Prior, 8 Sim. 621 ; Birds v. Askcy, S. 179. 24 Bcav. 619 ; Lord Lilford v. Powys {g) Biiuis V. Nichols, L. R., 2 Eq. Keck, L. R., 1 Eq. 347, 35 Bcav. 77 ; 256. notwithstanding Wythe v. Hcnnikcr. (A) Forrester r. Leigh, Ambl. 171 ; (A-) 1 Russ. & M. 187; Aldi'ich u. Wythe V. Henniker, 2 >L & K. 635 ; Cooper, 8 Ves. 382. see Rider t;. Wagner, 2 P. W. 334, 766 MARSHALLING BY COURT OF ADMIRALTY. ■Nvere deficient ; since it is clear, tliat the possession of both gives the owner of them a right to go against both or either for his whole debt (/). 1374. It might have been thought unnecessary to remark, that the princi2)le of marshalling can have no application where there is no question as to the sufficiency of the single fund, if such a proposition had not been attempted to be established. There being a first mortgage of estate X. to M. ; secondly, a mortgage of the equity of redemption of X., and of estates Y. and Z. to C, and then a sale of Y. and Z. to G., who also became the assignee of C.'s mort- gage, and filed a bill seeking to redeem the assignees of M., and to foreclose the mortgagor : the assignees of M. insisted, that to give them the benefit of an equitable lease of X., made after the second mortgage of that estate to C, estate X. should not be sold (the case arose in Ireland), until after the sale and application of the produce of Y. or Z. But they were answered, that marshalling went on the ground of insufficiency ; but that here the person having the double fund was off'ering to redeem the owner of the single fund ; which could not be done wathout paying him off(m). The attempt here was to use the doctrine of marshalling, to set up against the second mortgagees a lease, which was made subject to their security. 1376. The Court of Admiralty is a Court of Equity and will marshal securities according to equitable rules, so far as it can do so consistently -with the rules of maritime priority ; a qualification Avhich enables the owner of a cargo which is included in a bottomiy bond, with the ship and freight, to resist a claim to throw the debt upon the cargo, for the pur- pose of leaving the ship and freight to satisfy the debt of another bondholder, whose security was confined to them : because by the maritime law the cargo is not liable until the ship and freight are exhausted (w) (112), (I) Gwynne?-. Edwards, 2 Russ. 289. («) The Priscilla, 1 Lush. 1 ; 5 Jur., (m) Greg? v. Amott, LI. & Goo. N. S. 1421 ; see The Mary Ann, 9 Jur. temp. Sugd. 246. 94; La Constancia, 2 W. Rob. 404; SPECIAL APPLICATION NOT IlKQUIRED. 767 And demands for wages, pilotage and towage, to which the ship and freight are liable pro rata, will not be thrown upon the freight, for the benefit of a bondholder on the ship only, so as to prejudice the owner of the cargo, by diminish- ina: the residue of the freight which would otherwise be avail- able for another incumbrancer upon the cargo (o). Nor will the equity be applied where both funds are not under the control of the court. Therefore, seamen will not be com- pelled to proceed on their personal remedy for wages, against the ship owner, that the ship may be left to satisfy the bond- holder (p). 1376. It is not necessary to frame a bill expressly for marshalling. AVhen the court sees at any time that one class of creditors will be deprived of their debts by the claims of another class upon their fund, it Avill, without being called upon, direct the assets to be marshalled (y). The Edward OUvcr, L. E., 1 Ad. {}') The Arab, 5 Jur., N. S. 417. 371). in) Gibbs v. Ongier, 12 Ves. 41G. ip) La Constancia, 2 W. Bob. 460. ( 768 ) CHAPTER XL OF THE DISCHARGE OF THE SECURITY. 1378. J^!l Payment or Satisfaction of the Debt. 1405. J^!/ lielease. 1410. Hy Merger of the Debt. 1445. J^y Merger of the Security. 1452. ^^y ^Vaiver; and herein of the Bestrxhction of Possessory Liens by Abandonment of Possession ; and, 1490. Of the Right of the Vendor of Chattels to stop them in Transitu. 1531. Py t^ic Negligence or Fraud of the Creditor. 1548. Py ^Ae Loss or Bestruction of the Subject of the Security. 1377. Before considering in detail these several modes of discharging the security, it may be noticed that, under the civil law, a discharge might be created by set-off: but although this right is also known in our courts, it does not take effect there ipso jure. The debts subsist, notwithstanding the cross demands, and may be separately assigned (a). Even under the statutory provision (J) for a set-off in bankruptcy, the adjustment is made by the court. Of Payment or Satisfaction of the Debt. 1378. After default, the mortgagee is generally entitled to notice before his security is discharged by payment; the reason of which is said to be that the mortgagor having lost his estate at law, and being only entitled to redeem in equity, must do equity by allowing a reasonable opportunity for the mortgagee to find a new security for his money ; for which six months is treated as the proper time (c). There appears to be no direct authority as to the extent of (a) Pettat v. Ellis, 9 Ves. .56.3 ; Pin- (^) 2 Ca. & Op. 51. Per Shadwell, nock V. Harrison, 3 M. & W. .532. V.-C. E., in Browne v. Lockhart, 10 (Jo) 12 & 13 Vict. c. 106, s. 171. Sim. 424. AVIIEN NOTICE OF PAYMENT NECESSARY. 709 tliis ink'. It may be assumed, from the reason wliich is given for it, that it applies not only to securities upon real estate, but upon choses in action and other personalty wherever the nature of the security might make it necessary for the moit- gagor to come to a court of equity for redemption. But in the case of a mere pledge of chattels, where only a special property passes to the pledgee, and the pledge may be re- deemed at any time during the life of the pledgor, and is revested in him by mere tender of the debt (98), it may be that the rule will not apply. It also seems to be inapplicable where the security is naturally discharged by an event which does not depend upon the Avill of the debtor, as by the falling in of a policy of insurance, which constitutes the security ; for it may be considered as part of the arrangement that the debt, if not sooner discharged, shall be paid upon the happening of that event. 1379. It is said, however, that six months' interest is equivalent to the notice (d), and if the mortgagee demand his money or file a bill for foreclosure, which amounts to a de- mand, he will be entitled only to a much shorter notice ; a reasonable time according to the circumstances being suffi- cient (1690). And a mortgagee who has come in and proved his debt in a cause, is bound to take his money without notice, and to join in the conveyance (e). Upon the expiration of the notice, the mortgagee is bound to know the amount due to him, and to accept an unconditional tender of .a sum which amounts to all that is due, and the refusal to take it will be at his own peril (/). But the mortgagee may be justified in a qualified refusal of a tender of the proper siun, made at the appointed time ; as if with the money the mortgagor tender him for his execution a deed of assignment containing cove- nants by the mortgagee ; because the mortgagee is entitled to a reasonable time to be advised, whether such a deed l)e proper for hhn to execute, and a draft should have been sent (<f) 2 Ca. & Op. 51 : and there can {e) Matson v. Swift, 5 Jur. fi-45. no longer be an objection on acconnt (/) Sharpnell v. Blake, 2 Abr. Ivj. of usury. See Jaiiu. & B.\-th. Couv. Ca. 604 ; Hanner v. Priestler, 16 Btuv. Tol. V. 382. 569. 770 now DEBT SHOULD BE TENDERED, him beforehand ; for which purpose a week was thought by Lord HardAvicke to be a reasonable time(^^). 1380. The condition is well performed by a payment ac- cepted by the creditor, though it were made before the day fixed by the condition (/«) (1398). 1381. By tender of the sum due under a security by de- mise, to become void on payment, the land is discharged ; where the security is by feoffment, the condition is performed by the tender, and the feoffor may re-enter ; but the debt re- mains where the sum to be paid was a debt : if it were only a gratuitous payment there is no remedy (z). So a lien is discharged by tender of the debt (A). 1382. The conduct of the creditor may, however, amount to a dispensation with the tender, as has been laid down con- cerning a claim for a possessory lien for a larger amount than was due, or on a different account ; but it was said that a claim for a lien for too long a time would not exonerate from the tender ; for if the claimant had been shown the lesser amount he might possibly have accepted it (/). 1383. The debt must be tendered at a proper time and place, in sufficient money, with proper formalities, and by and to the proper person. 1384. To save the condition at law, the money might be tendered at any time on the day fixed, at the appointed place ; and if it were tendered at any time of the day, and refused, it need not be tendered again before the last instant of the day {rn). If a certain hour be fixed for payment of the mortgage money, an attendance before the beginning of the next hour will be sufficient ; because an hour is considered, for this pur- pose, as a twenty-fourth aliquot part of a day. Therefore where (n) the hour fixed was three o'clock, and the mortgagee waited from a quarter before till a quarter after that hour, and (ff) Wiltshire r. Smith, 3 Atk. 80 ; 1 G. & D. 1. S.C. Wilshaw v. Smith, '.) Mod. 441. (l) Allen v. Smith, 12 C. B., N. S. (h) Burgayiic v. Spurling, Cro. Car. 638, per Willes, J. 283. (w) "Wade's case, 5 Rep. 115 b. (?) Co. Litt. 209. (m) Knox v. Simmonds, 4 Bro. C. C. (/l) Martindale v. Smith, 1 Q. B. 389; 433. AS TO TIMi: AND PI,A( E. 771 the mortgagor attended before four o'clock, he was excused from payment of any interest, after that day. And to satisiy an order to pay money, between certain specified liours, it is not necessary to attend during all the interval between those hours. Thus, where the order was to pay, between eleven and twelve o'clock, the mortgagee's attendance for an hour, from twenty minutes after eleven, was held(o) to be sufficient to support the order absolute ; the mortgagor not having aj)- peared during all that time. But attendance at the end of 'the hour, or of the interval between several hours, is presimicd to be necessary. 1385. The feoffor needeth not, says Littleton (/>), speak- ing of the strict performance of the condition, to seek the feoffee in another place, nor to be in any other place, but in the place comprised in the indenture, nor to be there longer than the time specified in the same indenture, to tender or pay the money to the feoffee. 1386. The place of payment mentioned in the mortgage deed relates in strictness to the time of payment there men- tioned (5'); and unless a particular place be agreed upon, a personal tender in generally necessary. Yet if the place of payment mentioned in the deed be an usual one for the payment of mortgages, and there be no circumstances which make the choice of it unreasonable, the mortgagor's notice fixing upon that place for payment will be good. So, if the place chosen be an usual place, and not unreasonable with regard to the circumstances of the case, the tender may be made (r) there in pursuance of notice, though the place be not named in the deed, if the mortgagee take no objection to the notice ; as where notice was given of payment at Lin- coln's Inn Hall, the money having been lent in town, though the mortgagee lived at Oxford. And it may even be sufficient to tender the money at the mortgagee's house, or last place of abode, though it do not appear that the tender M-as made to him, or even that ho was (0) Anon. 1 Coll. 273. AIn-. G04. (j?) Sect. 342. (r) Gyles v. Hall, 2 P. Wins. 378. iq) Sharpnell v. Blake, 2 Eq. Ca. 772 HOW DEBT SHOULD BE TENDERED, within the house ; but this it is presumed can ;be only done under particuLar circumstances, as where the mortgagee is deliberately keeping out of the way to avoid the tender ; or as it happened in a case, where there was evidence that the mortgagee had expressed a determination to hold the pro- perty as long as he could, and after that to transfer it to a particular friend of his own (5). 1387. In the case of money charged on land, the place of contract, and of the residence of the parties, will be the place for payment, the charge being a sum in gross, and not a rent issuing out of the land(^). But the tenor of the whole instru- ment will be considered, and where the deed actually fixed Lincoln's Inn Hall as the place for payment of money charged on land in Ireland, the House of Lords disregarded the re- servation, and held that the owner of the money was not entitled to have it sent to England free of charges and ex- change (u). 1388. In England (a), but not in Scotland (?/), or Ire- land (z), notes of the governor and company of the Bank of England, expressed to be payable to the bearer on demand, are a legal tender to the amount expressed therein, for all sums above five pounds, so long as the bank shall continue to pay the said notes on demand in legal coin ; except by the company, or any branch bank of theirs. Before Bank of England notes were thus made a legal tender, the mortgagee might object to a tender made in such a form ; and the same rule applied, and still holds good, sub- ject to the first of the acts above mentioned, and as to country, and other bank notes, and bills, and other securities or notes for money. But a tender of notes or bills may, it seems, be made good (a) by an oifer forthwith to turn thenvinto money; and the objection, if any be taken, must be to the quality of the tender: for if the refusal be merely on the ground of in- («) Manning v. Burges, 1 Ch. Ca. (x) 3 & 4 Will. 4, c. 98, s. 6. 29. (2/) 8 & 9 Vict. c. 38, s. 15. (t) 5 Vin. Abr. 209. (z) 8 & 9 Vict. c. 37, s. 6. («) Lansdowne v. Lansdowne, 2 (a) Austen v. Executors of Dodwell, Bligh, 60. SeeColquh. § 1827— § 1834. 1 Eq. Ca. Abr. 31". AS TO MONEY AND PRODUCTION. 773 sufficiency in quantity, or otherwise, it will be taken that the tender was well made as to its quality (i). In like manner if the mortgagor tender a larger sum than is due, and ask for change, or desire the creditor to take there- out what is due, the tender will be good, if a larger sum be demanded, or no objection be made to the non-tender of the exact sum (c). And it is said to be even too late to object to the tender as such, if after acceptance thereof, some of the money prove to be counterfeit (^Z) (1498), 1389. It was considered (<?) by Lord Alvanley, in Ireland, that where from the circumstances of the country, the law had put it out of the power of a person to get a large sum of money in specie, the court would take notice of the fact, that it might give effect in equity to a tender not pleadable at law. 1390, Generally the money shoidd be actually produced, and this rule is somewhat strictly enforced at law ; for it is said, that though the creditor may at first refuse, yet the sight of the money may tempt him to take it {f). A tender by letter will not suffice in equity more than at law, even though the answer refer to it as a tender (y). But both at law and in equity it is held, that actual pro- duction may be dispensed with by the express declaration or equivalent act of the creditor, if the tender be otherwise suffi- cient {h). As for instance, if the debtor say he has the sum ready in his pocket (stating the amount), and has brought it for the purpose of satisfying the demand ; or being in the house, offer to go and fetch it from another part of the house, but the cre- ditor desire him not to trouble himself to produce or to fetch {})) Lockyer r. Jones, Penkc, 180, Lef. 521. n. ; 2 Cr. & Jer. 10, n. ; Tiley v. Cour- (/) Dickinson t-. Slice, 4 Es].. G7 ; tier, id. 1(>, n. ; Polglass v. Oliver, id. Thomas v. Evans, 10 East, 101 ; Doug- 15 ; Biddiilph V. St. John, 2 Sch. & las v. Patrick, 3 T. R. 683. Lef. 521. See Cohiuh. U. C. L. § {(j) Powney v. Blombcrg, 8 Jiir. 1825. 74ti. (r) Black v. Smith, Peake, 88 ; Bid- {h) Thomas v. Evans, E.x parte dulph V. St. John, 2 Sch. & Lef. 521. Danks, 2 De G., M. & G. 936 ; Dick- (rf) Bac. Ab. " Tender," B. inson v. Slice, 4 Esp. 67. {e) Biddiilph v. St. John, 2 Sch. & 774 HOW DEBT SHOULD BE TENDERED, the money, as he will not take it (i) ; or, if the creditor, not communicating personally with the debtor, refuse to authorize his agent to take the money, or to take it himself; the tender Avill be good(/<). But not, it seems, if the offer be to fetch the money from a distance (Z) ; or if the production of the money be only pre- vented by the departure of the creditor before the debtor can take it from his pocket (m); though the distinction between such an act of the creditor, where the debtor is plainly about to produce the money, and a verbal expression of intention not to take it, is but narroAv. And where, referring to a foi-mer conversation, the debtor said, " I will pay you the money I offered you yesterday," but it did not appear where the money was, or whether it could be immediately got at, the tender was held bad(w). And it is not sufficient for an agent of the debtor to say, that the money has been left with him for payment of the debt, if he do not offer it(o). 1391. A good tender may be made of money contained in bags, if it be proved, that the money was really contained in them (p ) ; for that is the usual way to carry money, and it is the mortgagee's business to count it. In another old case, however, it was held, that where the mortgagor, at the day and place appointed, said to the mortgagee, " Here I am ready to pay you," naming the sum, which was of due money, and yet held it all the time up(m his arm in bags, this was no good tender (rj) ; the reason Avhereof, viz. that it might be counters or base coin for anything that appeared, seems to conflict with the case in Coke ; but not the decision apart from the reason, for it is not said that the bags were offered. And a tender has been upheld, where the person who made it had twisted up part of the money in the notes which formed the rest, and told the creditor of what the parcel consisted, (i) Douglas V. Patrick, 3 T. R. 683 ; Car. & P. 342 ; and see Finch v. Brook, Harding v. Davies, 2 Car. & P. 77. 1 Bing. N. C. 253. (/fc) Robarts v. Jeffery, 8 L. J. (Ch.) (n) Glasscott v. Day, 5 Esp. 48. 137. (o) Thomas v. Evans, 10 East, 101. (Z) Harding v. Davios, 2 Car. & P. (j)) Wade's case, 5 Rep. 115 a. 77. i'j) Suckling v. Coney, Noy, R. 74. {m) Leatherdale v. Sweepstone, 3 AND BY AND TO AVIIOM. 775 though he did not open it before him. But it would have been otherwise if he had not told him (r). 1392. A tender will be bad if it be clogged with a condi- tion — as that the j)ayment shall be taken (s), as a balance due, or demand be made of a recei})t in full, where the other party offers to take the money in part payment {t) ; or, generally, where such a demand is made ; unless the creditor, making no objection on account of the condition, refuse the tender on another ground, as that the amount is insufficient (u). 1393. A good tender cannot be made by a stranger (561, 684), or, generally, by any not entitled to the equity of re- demption ; for, as against all but such persons, the estate is the property of the mortgagee (.?•) (466) ; but as by the civil ]aw(^) a guardian may pay for his ward (536); or an attorney, manager or agent for his principal (z). The persons entitled to redeem are of course able to make a good tender of the mortgage-money (510 — 562). It has been laid down by Lord Coke (a), that if an heir be an idiot, of what age soever, any man may make the tender for him on the ground of charity, on account of his absolute disability. A tender to save forfeiture at law is here referred to, and not a tender to effect redemption in equity. Where a tender of the whole sum due is made by an agent, who is authorized to tender only part of the money, it will yet be good though he tender the residue at his own risk (&). 1394. The tender, to be a good legal performance of the condition, must be made to the persons named in the condi- tion (c). In equity it may be made to the person or persons legally entitled to receive the money, and to re-convey the estate ; and where legal and beneficial titles are united in one (r) Alexander v. T?ro\\ni, 1 Car. & Loiifrniatc, S "Beav. 420. r. 288. (.!/) Col.iuh. R. C. L. § 1821. (.<) Evans 1-. Jiulkins, 4 Camp. \:>(j. (r) And if a solieitor pay off liis (0 Glasscott r. Day, 5 Esp. 48. client's mortgage, he is considered to (k) Cole V. Blake, Peake, 179. liavc paid it as his agent. (Ward l: (.»•) Litt. s. 334; Watkius v. Ash- Carttaa, .35 Bcav. 171; L. R., 1 Eq. 29.) wicke, Cro. Eliz. 132 ; see Owen, 137 ; («) Co. Litt. 206 b. Lomax v. Bird. 1 Vern. 182 ; James r. (b) Read v. Goldring. 2 M. & S. 8G. Biou, 3 Sw. 234 ; and see Flack v. (v) Co. Litt. 210. 776 AVIIEN AGENT CAN GIVE DISCHARGE. of such persons, he has no right to insist upon payment in his character of beneficial owner. Thus, where the persons enti- tled were devisees and executors, and one of them being bene- ficially interested in the mortgage-money, refused to complete the discharge and reconveyance, unless the interest were paid to himself, on his separate receipt, acknowledging at the same time the sufficiency of the whole tender, his demand was held to be wrong, and interest ceased to run from the date of the tender (d). The money Anil be well tendered to the executors of the mortgagee, though the day fixed fall before they have proved the will {e). 1395. The mortgagor will not be discharged by payments to the agent of the mortgagee, unless the agent have autho- rity to receive the money on the mortgagee's behalf (684). 1396. The rules upon this subject arose at first out of the custom of employing scriveners to lend out the money of their clients, who, if they left their securities with the scrivener, were held (f) to have thereby authorized him to receive the interest; and if the security were a bond, the authority to receive extended to the principal also, because the scrivener was enabled to redeliver the bond to the borrower, and thereby to extinguish the debt at law. But the possession of the securities did not alone confer upon the scrivener authority to receive the principal of a mortgage debt, because he could not revest the estate in the debtor by merely redelivering the deed(^); and whether the security were bond or mort- gage, the scrivener could not receive the principal where the creditor had not trusted him with the possession of the security, though he might have allowed him to receive the interest (A) ; but if the creditor had confirmed or acquiesced in the receipt (d) Cliff v. Wadsworth, 2 Y. & C. Dashwood's Executors, Freem. Ch. 249. C. C. 598. (k) Henn v. Conisby, 1 Ch. Ca. 93 ; (e) Austen v. Executors of Dodwcll, Gerrard v. Baker, cited there ; Legg 1 Eq. Ca. ALr. 318. i;. Oshaston, id. Ill ; Roberts v. Mat- (/) Whitlock V. Waltham, 1 Salk. thews, 1 Vem. 150; Curtis i;. Drought, 1 57. ] Mol. 487 ; Wolstenhohn v. Davis, ((7) Martyn v. Kingsly, Pre. Ch. Freem. Ch. 289. 209. Per M. R., Duch. Cleveland v. FOR PRINCIPAL OR INTEREST. 777 by the agent of any part of the principal, the payment would be allowed to the debtor (i). 1397. These decisions, however, so far as they recognized the authority of the scrivener to receive the principal of a bond debt, and the interest of a bond or mortgage debt, turned upon the peculiar nature of the scrivener's employ- ment, wherein were combined the business, now exercised by the banker, of investing, receiving and re-investing the money of his customer (who by so intrusting him submits to be bound by his acts) (^), with that of the attorney, who prepares and transacts the legal business connected with the security The modern authorities, therefore, do not recognize any power in the mortgagee's attorney to receive either the prin- cipal or the interest of the mortgage debt merely by virtue of his possession of the security, or to receive the principal by virtue of an authority to receive the interest ; unless, perhaps, as to the interest, it be shown that he acted as a scrivener (l), or may be inferred that the mortgagee treated him as his agent to receive the interest ; as where, after receiving interest by his hands, he allowed arrears to accumulate without apply- ing for payment to the mortgagor {ni). 1398. The payment of the principal of the mortgage debt to the general agent of the mortgagee, before the day fixed for repayment, may also be considered to be void as an attempt to rescind the contract contained in the mortgage, independently of the objection that the power of receiving the money is not incident to the character of the agent (?i). (0 Ducli. Cleveland i-. Dashwood's to his o^\^l use, and fraudulently pro- Executors, id. 249. cures a mortgage upon the property of (70 Sec Spaight v. Co'5\'nc, 1 II. & another client, unless the creditor can N. 359, where the attoniey seems to prove that he paid the money to the have had an authoi-ity closely rcscra- solicitor, as the agent of the mortgagor, Ming that of the scrivener. the latter will not he bound by the deed. (Z) Wilkinson v. Candlish, 5 Exch. If payment to the alleged mortgagor be 91; Simms c. Brutton, id. S02. Sec in doubt, the burden of proof will be on Cottam V. E. C. Railway Co. G Jur., the creditor. (Wall v. Cockerel!, S W. N. S. 1367, and Gibson's case cited R. 441.) there. So, if a mortgagee place money (?/() Kent r. Thomas, 1 11. & N. 473. in the hands of his solicitor for invest- («) Burrough v. Cranston, 2 Ii". Eii. ment, and he appropriates the money Rep. 203. M. VOL. II. 3i; 778 JOINT DEBTS ; TRUSTS ; PAYMENTS 1399. Although a joint debt is discharged at law, by pay- ment to one joint creditor (o) (as on the other hand the dis- charge of one of several joint debtors is a release at law of all of them (p)) (1468), the receipt of one joint creditor for a mortgage debt, without evidence of any special authority for him to receive it, will not discharge the security in equity (q) ; which treats the interest of the creditors as a tenancy in common. So if one of the joint creditors die, his representa- tives are entitled in equity to his share of the debt (?■). It is therefore iisual to insert in mortgages to trustees, or other persons whose interests are intended to survive, a provision that the receipt of the survivors or survivor shall be a good discharo-e for the debt; and it is conceived that if such a security have been acted upon by the mortgagees, the clause would operate, although the deed were not actually executed by them. 1 400. The bona fide payment to, and the receipt of, any person to whom any mortgage money shall be payable upon any express or implied trust, shall effectually discharge the person paying the same from seeing to the application, or being answerable for the mis-application or non-application thereof, unless the contrary shall be expressly declared by the instrument creating the trust or security (5). 1401. Where the debtor claims to be discharged bv reason of payments which were not specially made in respect either of the principal or the interest of the mortgage, the rule is that a general payment shall be applied in the first place to sink the interest, before any part of the^ principal is discharged {t). It is, however, the right of the debtor, in the first instance, to declare upon what account he pays the money (u) ; accord- (0) Husband r. Davis, 10 C. B. 645. 57; Vickcrs t;. Cowcll, 1 Beav. 529. (p) Per Brian, J., 21 Edw. 4, 81 B. pi. (.s) 22 & 23 Vict. c. 35, s. 23. 33; Nicholson v. Kevill, 4 A. & E. (0 Chase -y. Box, Freem. Ch. 261. 675, Qit) Mills V. Fowkcs, 5 Bing. N. C. (q) Matson v. Dennis, 10 Jur., N, S. 455 ; per Shadwcll, V.-C. E., Bradley 460. V. Ilcath, 3 Sim. 359. So by the civil (r) Petty v. Styward, 1 Ecp. in Ch. law, Colquh. § 1836, NOT SPECIALLY APrROPRIATED. 779 inof to the maxim quicquid solvitur, solvitur secundum moduvi solventis ; and when he has so declared, the destination of the payment cannot be changed (.r). But where the debtor omits at the time of payment, to declare upon what account the money was paid, he cannot afterwards do so (i/). The right of appropriation is then -with the creditor (z), and it has been held, that entries made by the debtor in his own books are not sufficient evidence of the parti(udar application of money paid on a general ac- count (a). A direction to the agent of a vendor to apply in payment of the purchase-money, a sum in his hands belong- ing to the ])urchaser, has also been held not to discharge the vendor's lien, where he was not infoi-med of the mode of pay- ment; although the agent had acted upon the direction, by debiting the account of the purchaser, and crediting that of the vendor with the amount (6). 1402. On the other hand, although under the civil law the application of the payment was regulated by tlio law, unless the creditor made an immediate appropriation (c), he may, by the law of England, declare upon what account he receives the money, at any time after payment, and before action brought, or account settled between him and his debtor ; and his written memorandum may be used after his death as evidence of his intention, and has been allowed to prevail against the oath of the debtor that he paid the money upon another account (d). AVhen the debtor becomes bankrupt, the creditor's right of appropriation accrues to him and is fixed at the bankruptcy (a;) Per Lord Kcnyoii, Hammcrslcy rule. V. Knowlys, 2 Esp. COG ; per Best, J., (:) Mills r. Fowkc?. ". Bin?. N. C. Simson v. Ingham, 2 B. & C. Oj. 455. (y) Per Lord liardwickc, Wilkinson (a) :Manning r. Wostorac, 2 Vcni. r. Sterne, 9 Mod. 427. Lord Kenyon, f.OG. in Ilammerslcij v. Kiwivlys, intimated {h) Wrout r. Dawes, 2 Gif. .181 ; 4 that the debtor might make the appro- .Tm\, N. S. 307. priation at a future time in respect of (c) Per Sir W. Grant, Clayton's case, a foregone transaction ; but the ob- 1 Jler. 572 ; Colquh. § 1S3G. serration appears to refer to the parti- {d) Wilkinson v. Stone, Mod. !i'7 ; cular case, aud not to affect the general Simson v. Ingham, 2 B. & C. 05. 3 e2 780 jVPPROPRIATION OF PAYMENTS. and must be regulated by the state of the account at that time ((?). 1403. AVhcn there has been no appropriation by either party, the general presumption is, that the monies were in- tended to be applied in discharge of the items of the debt consecutively (/) ; and, therefore, where partners made a mort- sasce to their bankers to secure a running account, and, after the death of one of the partners, it was arranged that the ac- count should go on with the new firm, which was then formed, and Avhich afterAvards became bankrupt, the debt which existed at the death of the partner was held to have been discharged by reason that a larger sum than was then due had been paid by the new firm before the bankruptcy (^). So the lien of the vendor for his unpaid purchase-money will be discharged by payments made by the purchaser on a general account, and which, being applied according to priority of receipts^ would be sufficient to cover the debt (A). In this respect also the rule of the English courts differs from that of the civil law, under Avhich the payment was first appropriated in discharge of the most burthensome debt, and, where all were equally burthensome, of the oldest debt (i). And this seems to have been formerly the rule in England ; for it was laid down in an early case, that if mortgage debts, and also debts which do not bear interest, be owing by the same person, and he make a general payment, it shall be taken to have been paid towards discharge of the mortgage debt ; (e) Per Lord Cramvorth, Ex parte guish interest ; 2n(], capital ; 3rd, debts Johnson, 3 Dc G., M. & G. 23G. (/) Mills V. Fowkes, 5 Bing. N. C. 4.J.J ; Clayton's case, 1 Mcr. 572 ; Bo- dcnham v. Purchas, 2 B. Sc Aid. 39. (ff) Fcarensidc v, Derham, 13 L. J, N. S., Ch, 354, and see In re De Mc- dewc's trust, 2G Bcav. 588 ; 5 Jur., N. S. 421, (/i) Stuart V. Ferguson, Hayes, Ir. E(i. R. 452. (i) Clayton's case, 1 Mcr. 572. Ac- cording to a more precise but not very intelligible statement : 1st, to cxtin- which tlic dcljtor owes on Ms own ac- coinit ; 4th, the older debt ; 5th, that wliich weiglis most heavily on the debtor. (Cohiuli. § 183G.) In Scotland, if there be no appropriation by the dcljtor, the creditor by his receipt may apjiropriatc. If no appropriation by citlicr, the creditor may appropriate to wliich debt he pleases, or to interest only. (1 Bell, Com. (Shaw), 73. See also Campbell v. Dent, 2 Mo. P. C. 292.) RELEASE OF DEBT OR SECURITY. 781 because it is natural to suppose that he wouUl rather elect to pay first the interest-bearing debt (/t). 1404. The application of payments in discharge of the items of the account in order of date prevails against the creditor, where he attempts post litem motam to make an appro- priation of general payments (/); and a solicitor, claiming costs in respect of transactions which he knew were beyond the powers of his clients, being trustees, cannot, post litem motam, appropriate general payments to costs incurred in respect of the unauthorized business. Such payments will be applied in discharge of costs which the clients were properly liable to pay (m). It seems, also, that even if the costs had been expressly paid to the solicitor, he could not have retained them as against the cestuis que trust of the clients ; and it follows that, even before suit, general payments could not have been appropriated as against them to such costs. Of the Release of the Debt or Securiti/. 1405. A security created by deed ought generally to be discharged by deed ; a record by record ; or a writing by writing (;?). An allejjed release or forgiveness of the debt or of the in- terest of it cannot be established in equity merely by showing that the creditor had expressed an intention to release the debt, if there be nothing Avhich amounted to a release at law (o). And although it was held by Lord Hardwicke, that the mortgage could not be enforced in a case (p) in which the mortgagor, having brought his writings to the mortgagee, the {?:) Hcy^vard v. Lomax, 1 Vcm. 24. (0 Tiirdrcw v. Howell, cited 1 11. & M. 440 ; reported on another point, 3 Gif. 381. (7jj) Re rh(x:ni.\. Life Assurance Co., 1 II. & :M. 433. («) Per Sir W. Alexander, Cupit r. Jackson, 13 Pr. 721. So, by the civil law, "Nihil tarn naturalc est, (piam eo gcncrc quidcpic dissolverc (juo col- ligatiim est. (Dig. 50, 17, 35.) (f)) Cross V. Sprigg, G Hare, 552. A bond debt. For other cases of release of bond and simple contract debts, sec Asten V. I've, 5 Ves. 350, n. ; Byra V. Godfrey, 4 Vcs. G ; Eden v. Smyth, 5 "Vcs. .■?41 ; Reeves r. Brymer, C Vcs. ."iK;; Flower r. Marten, 2 M. & C. 459; Peace r. llains, II Hare, 151. (j>) liichards v. Syms, 2 Eii. Ca. Abr. GI7. 782 EQUITABLE RELEASE ; EFFECT OF latter said, " Take back your writings, I freely forgive you the debt ; " with other expressions showing an intention to benefit the mortgagor ; it is considered (q) that he treated this not as a mere declaration of intention, but as a legal discharge, equiva- lent to a re-delivery of the mortgage deed. And if the mort- gagee cancel the mortgage, it is as much a release as cancelling a bond, though, of course, the estate must be re-conveyed (r). 1406. But although no release be created at law, the cre- ditor may have so acted that he will not be allowed in equity to enforce his security; as if, on the faith of the creditor's representation, the debtor have done acts by which his position has been altered. This may be illustrated by a case (s) in which the debtor, in consequence of the mortgagor's declara- tion that he would not call upon him to pay rent for the mort- gaged premises, continued in them instead of selling them for payment of the debt ; and it seems that this rule will be more readily applied to the release of interest than of principal, because an intention to release the latter would probably be evidenced by the giving up of the security {t). So if the promise to release were coupled with a condition, which has been performed by the debtor, and amounts to a consideration for the release ; — as payment of the probate and legacy duty upon a debt promised to be released by the legatees of the creditor (u). 1407. If a mortgagee have been induced by the mortgagor to re-convey to him, in consideration of the substitution for his mortgage of other securities, which are afterwards found to be fictitious, the re-conveyance is void, and cannot be set up either by way of estoppel or otherwise against the maker ; whose equity against the estate is paramount over the title of ((jr) Per Lord Loughborough, B^-m Turner, L. J,, Taylor i;. Manners, L. R,, V. Godfrey, 4 Ves. 10 ; per Wigram, 1 Ch. App. 48. Sec also Money v. V.-C. in Cross v. Sprigg, C Hare, 556. Jordcn, 2 Dc G., M. & G. 818; rcvd. And see obsen'ations of Turner, L. J., 5 H, L. C. 185, diss. Lord St. Leo- in Taylor v. Manners, L. R., 1 Ch. App. nards, 48, (t) Ycomans v. Williams, and see (r) Per Lord Hardwickc, Harrisou Cross v. Sprigg, sup. V. Owen, 1 Atk. 520. («,) Taylor r. Manners, L. R,, 1 Ch, (s) Ycomans v. Williams, L, R., 1 App. 48. Eq. 184 ; .'Jfj Bcav. 130 ; and sec per RELEASE OBTAINED BY FRAUD. 783 mortgagees puisne to him, whether they lent their money be- fore or after the date of the release ; and although, if the re- conveyance had been made to them instead of to the mort- gagor, they might have been protected as purchasers for valuable consideration -without notice of the fraud (x). But where the puisne mortgagees lent theii* money on the faith of the release, the right of the prior mortgagee to be restored is subject to their equity to stand first on the security as against him ( y). 1408. A creditor who has released the surety on the strength of a substituted security, which turns out to be in- valid and fraudulent, will also be restored to his rights against the surety, although the latter were innocent of the fraud ; being, hoAvever, bound to restore to their fonner position per- sons who had made advances to the surety on the faith of his release by the creditor (r). And it was said that the result would have been the same if the substituted security had failed through mistake, instead of fraud. Kor can a surety, who has been released in consequence of his own misrepresentation, be excused from liability on the ground that he was prevented by the release from suing the principal debtor, though the misrepresentation were innocent on the part of the surety. But if after a release has been fraudulently obtained the mortgagor, with the concurrence of the puisne incumbrancer, makes another security, under Avliich the estate is sold, it cannot be followed against the purchaser claiming for value, without notice, and on the faith of the release ; nor can any part of the purchase-money, which has been received by the ))uisnc incumbrancer without notice of the fraud, be recovered from him («). 1409. A judgment may be discharged by release, and after execution a release of part of the land afiected by it formerly released the whole (i). But the release from a judgment of part of any of the hereditaments charged there - (.1-) Eyre r. Bm-mcstcr, 10 11. L. C (-) Scholeficld r. Tcmplcr, «upra. 90 ; 8 Jur., N. S. 1019. (« ) Ejtc v. Burmcster, 10 Jiu-., N. S. (y) Id.; Scholeficld r.Teinplcr, Johns. 379, C87. 155 ; 5 Jur., N. S. 019. (b) Lyuacrc v. Eodcs, And. :i6C. 784 MERGER OF CHARGES ■with does not now affect the validity of the judgment as to the hereditaments remaining unrclcased, or as to any other pro2:)erty not specially released ; -without prejudice neverthe- less to the rights of all persons interested in the heredita- ments or property remaining unreleascd, and not concurring in or confirming the release (b). This is in accordance with the general law concerning pledges^ that release of part of the security is only an extinguishment pro tanto ; as, on the other hand, payment of part of the debt leaves the security com- j)lete for the residue (c). Of Merger of the Debt. 1410. Where a person is or becomes entitled to the inhe- ritance of an estate, of a charge upon which he is also the owner, and it is indifferent to his interests whether the charge should or should not subsist, a presumption arises in equity at his death (</), that the charge has merged in the inheri- tance (e). And if a person so entitled, or so entitled in equity (his trustees for sale having the legal interests), sell the estate free from incumbrances, he cannot say that there was no merger as against the purchaser (/). But the legal merger of a charge, by the conveyance of it and the estate to trus- tees, will, it seems, not affect the equitable interest of the oAvner of the estate if he be only tenant for life {g). The owner, if he Avill, may also preserve the charge ; the presump- tion against merger being rebutted by some direct expres- sion (A) by him of a contrary intention, or by such acts as equity will consider to be evidence of an implied intention ; neither of which however will have any effect, until the time at which, but for the contrary intention, the charge and the estate would have become united in one person (z), or (if (/>) 22 & 23 Vict. c. 35, s. 11. Wcightman, 2 Jur., N. S. 586. (c) Story, Bailments, § 301. (/) Bulkclcy v. Hope, 1 Kay & Jo. \d) Swinfen i: S^\infen, 29 Bcav. 482 ; 1 Jur., N. S. 8C4. 199 ; 7 Jur., N. H. 89. (_</) Id. (e) Forbes r. MoiTatt, 18 Ves. 384 ; (/t) Bailey r. Richardsou, 9 Hare, Barry v. Wright, 1 Sim. & S. 369 ; 5 734. Russ. 142 ; Tyler v. Lake, 4 Sim. 351 ; (i) Tyrwhitt v. Tyrwhitt, 32 Bcav. Davis V. Barrett, 14 Beav. 551 ; Hatch 244 ; 9 Jur., N. S. 346 ; 32 L. J., Ch. c. Skelton, 20 Bcav. 453; Pears v. 553, IN THE INHERIT.VNCE. 785 neither of these exist) Avhere under the particular circum- stances of the case it appears more for the benefit of the owner, that the charge should be kept on foot (7) (1451). The rules of laAV are no guide upon this subject to courts of equity, which sometimes hold a charge to be merged where it would subsist at law, and sometimes preserve it where at law it Avould be merged (/t). 1411. It appears to have been formerly thought (/), that the principle of merger applied only to the union of an equi- table charge with the inheritance, and not where the charge is secured by a legal interest ; but it is now well settled (7?*) that no such distinction exists. 1412. These principles are of extensive application, not only as regards the rights of the owners and persons entitled to successive or limited interests in estates, and their repre- sentatives, but also as they affect the priorities of different incumbrancers by way of mortgage. Where, for instance, the purchaser of an equity of redemption pays off the first mortgage, and takes a reconveyance (7*) ; or a mortgagee takes a reconveyance of the equity of redemption, in consi- deration of the debts due to himself, and the other mort- gagees, whom he covenants to pay (0) ; or an incumbrancer pays off arrears of head rent due on the estate, and after- Avards purchases the inheritance (p), in all these cases the debt which has been discharged Avill, p7'und facie, merge, as acrainst the other incumbrancers. So where a third incumbrancer, having notice of the second mortgage, bought the estate, contracting to pay off the in- cumbrances, and the first mortgagee reconveyed to a trustee for the purchaser in fee ; the second mortgagee was held to have become first incumbrancer, both as against the pur- ( j) Forbes r. Moffatt, supra ; Earl Thomas v. Kcmcys, 2 Vem. 3iS. of Clarendon v. Barhnni, 1 Y. & C. (;«) Astlcy r. Milles, 1 Sim. 29Sj C. C. 688 ; Gwillini v. Ilollimil, cited Gower v. Gowcr, 1 Cox, 53 ; Wyud- 18 Vcs. 393; Chester v. Willcs, Anibl. ham v. Earl of Ejrrcmont, AniM. Too. L'4G. (/() Toulnun r. Steere, 3 Mcr. I'lO. {k) Forbes V. Moffatt, supra. (0) Bro\\Ti v. Stead, 5 Sim. 535. (2) Chester r. Willes, supra ; Duke ( ;^) Gamctt v. Anustrong, 4 Dm. of Chandos v. Talbot, .' V. Wms. GOl ; & War. 182. 786 5IERGER OF DEBT UPON chaser and an incumbrancer from liim, who, having construe- tive notice of the second mortgage, had advanced the money for payment of the first (q). So if a new mortgagee pay off the debt, and take an assignment of the mortgaged estate, but the deed contains no assignment of the mortgage debt, and no intention to preserve it is otherwise shoAvn, the debt will be extinguished (r). Such an intention has, however, been inferred from an assignment of the estate to the new mort- o-ao-ee, in as full and beneficial a manner as that in which the oritrinal mortsjao-ee could have held it (*•). 1413. It has even been laid down, that the purchaser of an equity of redemption ca?mot keep up a charge for his own benefit. In the case of Mocatta v. Mur(jatroyd{t), the mort- gagee of a ship had returned the bill of sale to the mortgagor, who was thereby enabled to re-mortgage different parts of the ship to other persons, and the first mortgagee acquiesced in those mortgages. He afterwards took a release of the equity of redemption. It was held, that the subsequent mortgages should be preferred to his, because of his carelessness and acquiescence; and that though he had taken a release of the equity, it did not oblige him to pay the intermediate mort- o-ao-es if he would waive the release (1442). In the case of Greswold v. Marsham{u), the mortgagee having notice of two out of three subsequent judgments, Avhich had been confessed by the mortgagor, took (after a decree for foreclosure) a conveyance of the equity of re- demption, and was decreed to pay the two judgment credi- tors ; but the third had no relief because he gave no notice in time of his judgment. These cases "are direct authorities," says Sir William Grant, M. R., " to show, that one purchasing an equity of redemption cannot set up a prior mortgage of his own, nor, consequently, a mortgage which he has got in, against subse- quent incumbrances of which he had notice ;" and applying {q) Pany v. Wright, 5 Russ. 142. Bcav. C32. (r) Medley v. Horton, 14 Sim. 226. (t) I P. Wms. 392. (s) Phillips V. Gutteridge, 4 Dc G. («) 2 Ch. Ca. 170, & J. 531. Sec also Irby v. Irby, 25 PURCHASE OF EQUITY OF REDEMPTION. 787 the doctrine thus laid down to the case before him, the learned judge held (:r), that the purchasers of an equity of redemption, who had paid off a prior mortgage out of the purchase-money, and taken a conveyance of the legal estate, could not set up that mortgage against an annuitant, who had originally taken subject to it. And Turner, L. J., wheij V.-C, referred to this judgment as good law {y), but his observation appears to have been extrajudicial, since he ex- pressly declared the principle to be inapplicable to the case before him. On the other hand, Knight Bruce, L. J., in a somcAvhat later case (observing (z) of the cases of Mocatta v. Murga- troyd and Greswold v. Marsham, upon which Sir W. Grant expressly rested his doctrine, " I always doubted, and still doubt, whether the cases mentioned by him go that length"), lield with Lord Cranworth, L. J., on appeal from the V.-C. of England, that a purchaser of an equity of redemption, who had paid off the first mortgage out of the purchase- money, might, having shown an intention of doing so, stand in the first mortgagee's place against the next incumbrancer. And it is submitted, that the doctrine attributed to Sir Wil- liam Grant, is not in truth supported by the only authorities cited in support of it. In the case of Mocatta v. Murgatroyd it was indeed said, that the release did not oblige the prior mortgagee to pay the other incumbrancers, provided he would waive it; the inference it is presumed being, that if he would not waive it, he must pay them. But this is surely a loose way of expressing so broad a rule ; and it seems by the re- port, that if the release had been waived, the first mortgagee could not have set up his mortgage against the later ones, because by his acquiescence and carelessness, he had been (a;) Toulmin v. Stcerc, 3 Mcr. 210. the sale was expressly made subject to In Smith V. Phillips it was held, that the claim under the agreement, though nn equitable mortgagee, who had pm-- the validity of the claim was not ad- chascd the inheritance, was bound to mittcd. (1 Keen. ()t)4.) perform an agreement for a lease made {>j) Squire r. Ford, 9 Hare, 47, and by the mortgagor, with notice of the sec Chesshyrc v. Biss, 2 Gif. 287. niortgage, on the ground of merger ; (;) Watts v. Symcs, 1 De G., Mac. but it seems to have been thought that & G. 240. 788 MERGER UPON DISCHARGE BY already declared to have lost his priority. Of even less value on this point seems to be the decision in Greswold v. Mar- sham. The t^Yo judgment creditors had there offered to re- deem the mortgagee, who afterwards, and, it seems, behind their backs, got a foreclosure decree, and then took a release. Here there was an act of fraud, quite sufficient, it is pre- sumed, to postpone the mortgagee. But in fact when the release was made there was nothing upon which it could ope- rate. The equity of redemption had been already destroyed by the foreclosure. How then could a case, in which the release had no effect, be an authority for its alleged power of utterly destroying the mortgagee's original debt (f?) ? 1414. The decision in the case of Toulmin v. SteerevfiW not justify the contention that if a first mortgagee pur- chase the equity of redemption from a mesne assignee, who took it subject to a mortgage to the original mortgagor for the purchase-money, the first mortgage is so merged that the mortgagor is relieved from his covenant to pay, and let in as a prior incumbrancer in respect of the security for his pur- chase-money (e). Nor will it enable the mortgagor to set up against his puisne incumbrancer (/) a prior mortgage created by hunself, and of which he has obtained the benefit either by transfer, or by buying from the first mortgagee under his power of sale ; because if the mortgagor pays off a charge on the estate, he does so for the benefit of the inheritance, and of all who are entitled to subsequent charges thereon. How- ever, it is considered that a purchase by the mortgagor after several bona fide mesne transfers might be set up, since the mortgagor would not then be found paying into the hand of the prior mortgagee, money which he is bound by his contract to pay in discharge of his debt. 1415. The trustees of a deed for the benefit of creditors, {d) It may he objected that the dc- was not necessary for the decision to cision in Toiilmin, v. Steere was acqui- lay dowTi the rule so Itroadly. csced in; but an aj)peal was signed {c) Haydou r. Kirkpatrick, 11 Jur., against it, though not prosecuted, be- N. S. 83G. cause a relative of one of the parties (/) Otter r. Lord Vaux, 2 K. & J.- paid the money to prevent further liti- 6u0 ; G De G., M. & G. 638. o' ation. (5 Russ. 148.) Note also, that it PERSONS WITH LIGHTED INTERESTS. 789 by "which all the real and personal estate of the debtor has been conveyed to them, do not thereby become owners of the estate, so as to cause the merger of a judgment assigned to them by one of the creditors [g). 1416. The rights of the adult tenant in tail, and of the tenant for life, are governed by special equities arising out of the nature of their estates. Where an adult tenant in tail, having the ordinary rights which belong to that interest, pays off a charge, the presumption (but which arises from inference only, and may be rebutted by evidence) is, that he has done it to benefit the estate Qi) ; contrary, it seems, to the earlier rule, which did not extend the presumption of merger to the case of tenant in tail {i). The presumption stands on the rea- soning, that as the tenant in tail can, if he will, acquire the fee simple, an inference arises from his not doing so, that he intends the estate, which, in fact, passes by his forbearance to the remainderman, to pass to him freed from the charge. 1417. But no merger will be presumed of a charge paid off by one possessed of an estate defeasible under an executory devise (A) ; such a person is not Avithin the principle which affects tenants in tail, because he cannot of his own act make his estate indefeasible ; and although he is not like the tenant for life, because upon a contingent event his estate may be- come indefeasible, yet the same principle is applied to him Avhich is applied to the tenant for life. 1418. As to whom, whether he l)e simple tenant for life, or tenant for life with remainder in fee to himself (/), after contingent remainders, and whether (in) tlie estate be, or be not, inalienable ; the rule is, that by payment of the charge ( g) Squire v. Ford, 9 Hare, 47. (/() Jones V. Morgan, 1 Bro. C. C. 21 7 ; Kirkhain r. Smith, 1 Vcs. 257 ; Driiikwatcr r. Combe, 2 Sim. & S. 340; Smith r. Frederick, 1 Kuss. 208 ; St. Faul r. Dudley, l."> Ves. 173. (;■) Duke of Chaudos v. Talbot, 2 r. Wms. G04; Chester r. Willcs, Ambl. 24G. (/,:) DrinkM-ater r. Combe, 2 Sim. & S. 340. It seems, whether the cxecu- toiy devise tjikc effect or not. In Wig- .scll r. Wigsell, 2 Sim. & S. 3G4, the estate tail was not ultimately defeated, but here the defeasible estate was. See the observation of Sir A. Ilaii on these cases, 1 Sim. ;]4.'>. (0 AVyiidhani v. Karl of Egremont, Ambl. 753. (/h) Countess of Shrcwsbun,- r. Eai-1 of Shrewsbmy, 1 Ves. jun. 227. 790 MEKGER UPON DISCHARGE BY he shall be presumed to be a creditor for the amount, because of the scantiness of his estate, even though he have done no act to show such an intention ; for it will not be supposed that he would discharge a debt on another man's estate («). And if tenant for life mortgage subject to a prior charge on the in- heritance which he afterwards pays off, and procures to be assigned to a trustee for himself, and he and the trustee then sell for valuable consideration, the mortsras-ee of the tenant for life has no equity against the purchaser (o). And even if, upon payment of the charge, the tenant for life have taken an assignment, connecting it with the legal estate of inheritance, and have so prima facie put an end to the charge, something is yet required to show an intention to exonerate the inherit- ance (^). No obligation is upon the tenant for life to declare or show any intention to keep up the charge, and the burden of proof is on those who claim to have the estate exonerated : but, it has been said, that the smallest demonstration that the tenant for life meant to pay the money himself will prevent his representatives from laying claim to it {q). 1419. Tenant in tail in remainder, who cannot at his plea- sure acquire an absolute interest, but may be defeated by the birth of issue of another person (r), and tenant in tail Avith powers of leasing and jointuring, but who is restrained from alienation (5), stand in this particular in the same position as tenant for life. 1 420. And both as to tenant for life and tenant in tail in remainder the equities remain unchanged, though the one afterwards acquires the fee and the other an estate capable of enlargement into a fee, and the existence of which at the time of payment of the charge would have caused a merger {t). The charge, however, only remains unmerged in the case of («) Jones V. Morgan, 1 Bro. C. C. (r) Wigsell v. Wigsell, 2 Sim. & St. 217 ; Faulkner v. Daniel, 3 Hare, 199 ; ?M. Jameson v. Stein, 21 Bcav. 5. («) Countess of Shrewsbury v. Earl {0) Ilarman v. Forster, 1 D. Sc Wal. of Shrewsbury, 1 Vcs. jun. 227. G37. {t) Ilorton v. Smith, 4 K. & J. 624; (^;) Burrcll v. Earl of Egrcmont, 7 Wigsell v. Wigsell, supra ; Trevor v. Beav. 205. Trevor, 2 M. & K. 675. PERSONS "VVITn LIMITED INTERESTS. 791 the tenant in tail in remainder, where he has become entitled to it by payment. AVhere it devolves upon him without any act on his part, it will merge if no contrary intention be ex- pressed, and it be indiftcrent to him whether it shall merge or not (u). 1421. "Where tenant in tail is an infant, there is also no presumption of merger (u) ; for which one reason, viz. that non-merger was more beneficial for the infant, because he could dispose of the charge, but not of the estate, during his infancy, has now failed ; but as the presumption of merger, in the case of tenant in tail, goes on the principle that he can acquire the fee, it seems there will still be no merger in the case of the infant tenant in tail. A payment by the Court of Chancery out of an infant's estate A\'ill not cause a merger, as no intention to prejudice the estate or interest of the infant can be imputed to the court. 1422. As the lunatic tenant in tail, like an infant, cannot acquire the fee, it seems there should be no merger in his case (w). But as to lunatics seised in fee, the charge will merge on the usual presumption, and because between the real and personal representatives, who are all volunteers, there , is no equity to change the nature of the property (.r). 1423. The principles respecting payment of charges by tenants for life apply only remotely, if at all, to the payment of bond debts, for by payment of a bond debt the legal right to sue is gone ; and if the equitable right be preserved, by showing an intention to preserve it at the time of payment, the tenant for life is still only in the same position as other bond creditors. The presumption also is strongly against the intention, which, even if it exist, cannot be made available after such a lapse of time, that the bond creditor, if suing for himself, Avould have no right against the estate (y). (i/) Ilortonr. Smith, and sec Wynd- (a?) Lord Compton v. Oxendcn, 2 linm V. Earl of Egrcmont, Aiiil)l. 7o3. Ves. jun. 201. (u) Ware v. rolhill, 11 Yes. 257 ; (y) Morlcyr. :Morlc}', 5 Dc G.,Mac. Thomas v. Kemeys, 2 Vem. 348. See & G. GIO ; and sec Roddam v. Morley, 2 Ves. jun. 264, and Biilkeley v. Hope, 2 Kay & Jo. 330 ; revd. 1 Dc G. & IK. &J.482. J.I. (?y) Cootc, Mort. 397, ed. 3. 792 EVIDENCE OF INTENTION AS TO MERGER. 1424. Tlic principle of want of cqnity to bring back a charge already merged also applies where after the merger the estate goes over. Thus, Avhere the same person being tenant in tail in remainder of two estates, the produce of the sale of part of one of them was applied in redeeming the land tax on both ; the land tax was held to have been so merged, that upon one of the estates passing from the tenant in tail to another person, the former had no equity to charge it with the money applied to the redemption (y). 1425. There may, however, be equitable circumstances, under which the remainderman must repay the charge to the representatives of the tenant in tail. Thus, where tenant in tail paid off a mortgage, secured by a term, of which he took no assignment, and afterwards settled the estate as if he were absolute owner, and gave legacies to the persons entitled in remainder by his will, which referred to the settlement ; it was held (z), that those persons claiming the estate under the ori- ginal settlement must make satisfaction for the charge to the personal estate of the tenant in tail. 1426. It remains to be considered, by what acts an inten- tion against, or in favour of, merger may be shown by tenant in fee or in tail, and by tenant for life respectively. The evidence may in the first place be either direct or pre- sumptive (a), and parol evidence (i) may be used. 1427. Merger may be prevented by a conveyance to a trustee, with an express declaration (c) that the object was to preserve priority in respect of the debt paid off. And where no assignment had been made, an express declaration of inten- tion, in a case where a purchaser paid off the first mortgage, evidenced by the written declaration of the mortgagor that the purchaser should stand in the first mortgagee's place till the assignment, has also been held {d ) sufficient to confer the priority of the latter ujjou the purchaser, although the pay- (y) Ilan-ison v. Round, 2 De G., (c) Bailey v. Richardson, 9 Haro, Mac. & G. 190 ; 17 Jur. 5G3. 734. (z) Kirkham v. Smith, 1 Vcs. 257. (^7) Watts v. Symes, 1 De G., Mac. («) Hood V. rhillii.s, 3 Beav. 513. & G. 240. (J) Astley V. Millcs, 1 Sim. 345. INTENTION TO rUEVENT MEROEU. 793 ment was stated to be made out of the purchase-money, in discharge of the Jirst morUjage. And a statement in a resi- duary account passed by the o^vner of tlie estate at the stamp office, that he had retained a sum of money towards payment of the mortgage, coupled with his written instructions for the settlement of the estate, after payment of the mortgage debt, was held to show that he considered the charge to be in exist- ence ; but part of the estate being leasehold, no stress was laid upon an expression in his will, that the devisees should take the property with all the liabilities attaching thereto (e). But a mere conveyance to a trustee without a declaration will not be sufficient (/) ; this being only one of the grounds upon which in ecpiity the presumption of mei'ger may be re- butted, and not decisive evidence against the merger. Where a person entitled to a reversion purchased charges on the estate, which were conveyed to trustees, who declared that they held them for the purchaser, subject to the prior contingent rights and interests, but so that, as against the persons^ who might become entitled to such rights and in- terests, the charges should remain in existence ; it was held clear, that they did not subsist as against his devisees {g). 1428. Where a declaration of trust is made, the intention of preventing merger should be clearly and unequivocally stated, and it Avill be considered that if the intention did exist, it would be expressed in such an instrument, and be accom- panied by a declaration of trust of the charge. In a declara- tion of trust, therefore, the intention will not be inferred (A) from such a circumstance, as the form of a covenant by the trustee, to convey the estate to the owner, his heirs and assigns, or to such person as he, his heirs, executors, administrators or assigns should appoint. But a declaration that a mortgage term assigned to a trustee for the owner of the inheritance shall be held upon trust for him, his executors, administrators and assigns, without mention of his heirs, may assist strongly ((') Hatch y. Skelton, 20 Bcav. Vu\. ((/) Lord Sclsoy v. Lord Lako, 1 (/) Pan-y r. AVrij^ht, 1 Sim. & St. Beav. 146. 3G0; 5 Russ. 142; Hood v. riiillips, (A) Hood c. riiillips, snpra. 3 Beav. 513. M. VOL. II. 3 F 794 CIRCUMSTANCES IN FAVOUR OF the presumiition agaiust merger, provided It be made in the character of OAvner of the charge (^). Such a declaration made by the owner and another, where they happened to be trustees of the fund, was treated as a mere declaration of the trusts by which the fund was originally affected. 1429. The payment of interest, much beyond what the profits of the estate would have discharged, raises, in the case of tenant for life, a presumption that he meant to merge, and not to preserve the debt which he has discharged (j) ; and merger has been also held to be caused (in the absence of evidence showing a contrary intention) by the effect of a general release (^) by the tenant for life to the trustees of the settlement, by which a term was created in them for securing the charge ; as amounting to a declaration that the charge should not be raised. But, in considering the effect of a release, note that the general intention will be carried out, and conditional and pro- visional terms supported ; so that where a judgment creditor executed a deed, by which the debtor conveyed all his real and personal estate for the benefit of creditors, and they covenanted that it should operate as a general release, but should not destroy the mortgage, pledge, lien or other specific security of any creditor, the judgment creditor was held not to have released the judgment so as to affect his priority over a subsequent judgment creditor, not a j)arty to the deed (I). 1430. On the other hand, the presumption in favour of merger will be strengthened (though not concluded), if the owner of the estate dispose of it by will, making no mention of the charge (unless there be other charges to which the de- vise is subject, and which are also not mentioned), and using language calculated to exclude the existence of any charge on the estate (m), or under circumstances showing that it was not (i) Guntcr v. Gunter, 23 Beav. 571 ; (!) Solly v. Forbes, 2 Brod. & Bing. Tyrwliitt v. T)Twhitt, 32 Bcav. 244 ; 38 ; S.juire v. Ford, Hare, 47. 9 Jar., N. S. 346. (?«) JIoo.l v. I'hillips, 3 Beav. 513 ; (j) Jones V. Morgan, 1 Bro. C. C. Grice v. Shaw, 10 Hare, 76 ; Swinfen 205. r. Swinfen, 29 Bcav. 199 ; 7 Jur., N. S. (/<■) Clifford V. Clifrord, 9 Hare, 675. 89. AND AGAINST MERGER. 795 treated as subject to any charge («). If the owner mortgage the estate absolutely without noticing the charge It avIU merge (o). And a charge secured by a term has been held to merge {p), contrary to the acLnlttcd Intention of the owner, where he settled the estate, covenanting fully that It was free from Incumbrances, even though he afterwards made a dispo- sition by will, which showed that he considered It to be sub- sisting. But In a later case {q), where land tax had been redeemed by the guardians of an Infant tenant in tall, who died, having bequeathed it (before the Wills Act) to the next tenant In tall, who suffered a recovery and made a resettlement by a particular description of the estate only with the usual general words, and covenanted against incumbrances (r), with particular exceptions which did not refer to the land tax: but after the date of the settlement always received the land tax by distinct and separate payments from the tenants, and devised it by his will ; it Avas held, that the settlement did not Include the land tax, if there had been otherwise no merger. That there was none prior to settlement, seems clear on the authority of Ware v. PolhiU{s), for the first tenant in tail died an Infant, and the second was yet an infant when he took the estate, and down to the time of the recovery ; and the acts after the settlement seem also sufficient to prevent merger; but query y if the construction of the deed itself can be recon- ciled with that in Gower v. Goioer. 1431. A prior charge will not be held to subsist, as against a puisnt incumbrancer, where the o-\ATier of it, and of the estate, in disposing of the latter by an instrmnent to which the puisne incumbrancer was not a party, has provided that the charge shall not be raised {{). 1432. Even the express extinction of certain charges, and the conveyance of the estate subject to another charge, does not necessarily imply an Intention not to extinguish the («) ritt r. ritt, 22 Bcav. 20-t ; 2 S. 433. Jur.. N. S. 1010. (/•) Sec also Biilkoloy i-. Hope, 1 (<») Tyler i\ Lake, 4 Sim. 351. Kay & Jo. 487 ; 1 Jur., N. S. 8G4. (;y) Gower v. Gower, 1 Cox, 53. (s) 11 Ves. 257. (</) Blimilell v. Staulcy, 3 Dc G. ."t {t) FaiTow c. llccs, 4 Ecav. 18. 3 r 2 796 CIKCUMSTANCES IN FA YOUR OF latter ; Avliich may have been mentioned only to show the state of the title, and the nature and extent of the charges. And so it was held in a case in Avhlcli tlie charge referred to was not capable of being extinguished at the date of the conveyance; the grantor being only contingently entitled thereto (?f). 1433. There will be no merger, where merger would pre- vent the operation of a trust to which the interest in question is subject. Plence an annuity charged upon real estate in favour of a married woman for her separate use, will not merge in a life interest given her in the same estate, because tlie rents would then become subject to the control of the husband contrary to the trust {x). 1434. If the tenant for life of a manor take a surrender of land copyhold of the manor, and treating it as copyhold afterwards covenant to surrender to a mortgagee, although the court will compel the remainderman to re-grant in his favour, there is no equity for a re-grant in favour of a person who does not claim under the mortgagee, and who would not necessarily take any interest under the re-grant to him (y). 1435. A charge may subsist for a limited purpose only, and may, although merged, be subject to liabilities as an existing charge. Thus, where a woman was entitled in fee to real estate, which descended to her from her father, subject to a mortgage made by him to secure money, to which she was also entitled ; after making both the land and the money a security for an annuity and other monies, she devised the estate with other property, after payment of her own debts, and after the affairs of her father should have been settled (for the settlement of which she had previously given directions), to H., without referring to the morto;a2;e debt. This was held (z) to cause a merger, in favour of the devisee, such being the most natural wav of discharging her father's debt (m) Johnson v. Webster, 4 Dc C, (y) St. Paul «. Dudley, 15 Ves. 167. Mac. & G. 474 ; 2 Jur., N. S. r,<). (r) Swabey v. Swabey, 15 Sim. 106, (x) Byani r. Sutton, 18 Jur. 847. 502. AND AGAINST MERGER. 797 to herself; but the mortgage debt, being in existence at her death, remained subject to probate and legacy duty. 1436. Where a tenant in tail in remainder, after a life estate, granted an annuity to the tenant for life, to cease upon his death, or upon the discharge, by the tenant in tail, his heirs, executors, administrators or assigns, during the life of the tenant for life, of certain heavy mortgages to Avhich the estate was subject, the mortgages were held to have merged in the inheritance ; for it could not be intended, in the absence of express provision, that the annuity should cease on payment of the mortgages, if the annuitant were to pay the interest to the tenant in tail, instead of the mort- gagees ; there being an obvious intention to relieve the tenant for life, and it being for the general benefit of the family that the estate should be exonerated (a). 1437. AVhere the evidence of the conduct or acts of the owner of the estate is none or neutral, the course most bene- ficial to himself will be considered as that which he purposed to folloAv. The facts, therefore (Z»), that the estate is subject to debts and legacies, or other charges, to which the charge in question is paramount (unless the estate be devised to the owner of such a charge (c) ), even although from the state of the testator's assets the liability, in the case of debts and legacies, be of little apparent importance, the uncertainty whether the estate will be sufficient to bear all its burthens, and other matters which make it better for the owner of the estate to preserve than to merge the charges, will be taken as grounds for presuming his intention so to do. But this reasoning as to paramount charges does not apply where the intermediate interests are created by the act of the owner himself. Therefore where the owner in fee of an estate, subject to a charge in which he had a contingent in- (rt) lloghton r. Iloghton, 15 Bcav. Byam «. Sutton, 18 Jur. 847 ; Faulkner 278. V. Daniel, 3 Hare, 199 ; Hatch d. Skel- (^h) Forbes r. iloffatt. 18 Yes. 384 ; ton, 20 Bcav. 453 ; Sing r. Leslie, 2 J. Earl of Clarendon v. Barhani, 1 Y. & & H. 68. C. C. C. 688 ; Grice v. Shaw, 10 Hare, (e) Swinfen v. Swinfen, 29 Beav. 76 ; Davis v. Barrett, 14 Bcav. 542 ; 199 ; 7 Jur., N. S. 89. 798 CIRCUMSTAJJCES IN FAVOUR OF tercst, created estates by his marriage settlement, it was held, upon the happening of the contingency, that the charge had merged, and a bill by the rejjresentatives of the owner to establish it was dismissed {d). 1438. "\^^lere on the construction of an agreement no in- tention to merge a charge is apparent, and there is no other contract to do so, it will not be admitted (e) as a valid argu- ment to destroy a presumption against merger, arising from the interest of the owner of the estate, that the honesty of the transaction would be affected by the presumption. 1439. IVhere tenant in tail, believing himself to be seised in fee, subject to a term for securing a charge, made a mort- gage as of the fee, and out of the proceeds paid off the charge, leaving the term outstanding, it was held(jr), that though there was an intention to destroy the charge, yet, as the whole estate could not under the circumstances be enjoyed according to the whole intention, the term, never having been assigned, should be considered as subsisting to secure the amount of the orio;inal charge. 1440. The intention to merge will not be imputed to a person on account of particular dealings with the estate, where those dealings are carried out in a manner, or by words, only explicable on the supposition that the person concerned was ignorant of his rights ; as where {(/) a tenant for life, being also executor, paid off certain charges on the settled estate, under circumstances which showed his belief that in the character of executor and residuary legatee of the settlor he was bound so to do. 1441. Merger will not take effect, it seems, in favour of a person who acquires a title under circumstances amounting to evidence of fraud. Thus, where the legal owner of an estate, subject to a lien and a contract to execute a mortgage, and not being in possession of the title deeds, mortgaged the (d) Johnson v. Webster, 4 De G., sistence of the term, Clifford v. Clifford, Mac. & G. 474. 9 Hare, 675. (e) Davis v. Barrett, 14 Beav. 542. (ff) Burrell v. Earl of Egremont, 7 (/) Earl of Buekinghamshire?;. JIo- Beav. 205. bart, 3 Sw. 186 ; and see as to the sub- AND AGAINST MERGER. 7U9 estate in fee to a person who made no inquiry for the deeds or into the title, and afterwards conveyed the equity of re- demption to the prior incumbrancer (who had no knowledge of the legal mortgage), the prior incumbrance was not held to have merged in the C([uity of redemption (/t). 1442, >\'here a charge was declared to bind the estate, and the necessary deeds for securing the charge were directed to be executed by the tenant for life and tenant in tail ac- cordingly, l)ut the proi)er means were not directed or taken to afi'ect the fee simple of the estate ; the tenant in tail in re- mainder, having refused to pay the charge, Avas directed {i) to execute all acts and conveyances proper to bind the inherit- ance. The hint thrown out in the case of Mocatta v. Murga- troydiji), that an incimibrancer who had got a release of the equity of redemption might avoid the merger of his security by waiving the release (1413), seems to have met with no further support (/). 1443. The operation of the 40th section of the Statute of Limitations (m), preventing the recovery of money charged upon land beyond twenty years, after a present right to re- ceive the same shall have accrued to some person capable of giving a discharge or release, unless some part of the prin- cipal money or interest shall have been paid, or acknow- ledgment of the right given, will not deprive the personal representatives of the benefit of a charge which has been paid off, where there is no assignable person liable to pay the charge, or who by the delay could be induced to suppose that it was abandoned or merged, or where the rent out of which the interest is payable, is receivable by, and belongs to, the person entitled to the interest : it being assumed by the act that there is a person by whom the charge is presently pay- able, or who is capable of paying the principal or interest, or of making an acknowledgment of the right thereto (o). (A) Worthington r. Morgan, IG Sim. (Z-) 1 V. Wms. 395. 547. (J) BioMii r. Stead, 5 Sim. 535. (0 Ware V. rolhill, 5 De G. & S. (w) 3 & 4 Will. 4, c. 27. 455 ; and sec Ware v. Lord Egmont, (o) Bun-ell v. Earl of Egrcmont, 7 18 Jm-. 371. Beav. 205. 800 MERGER OF INFERIOR 1444. Here it may be noticed, that upon the merger of tithes by virtue of the acts (p) passed for that purpose, the lands in Avhieh tlie tithes are merged become subject to such charo;es ami incumbrances as aifected the tithes before the merger, to the extent of the value of the tithes, and such charges and incumbrances have priority over any charges or inciunbrances which affected the lands at the time of the merger, and the lands and their owners are subject (5') to the same liabilities in respect of the charges and incumbrances, as affected the tithes and their owners before the merger. And by the operation of the confirmation clause in the latter act(?-), which makes valid at law and in equity (subject to such charges and incumbrances) all instruments purporting to merge tithes, and made with the consent of the commis- sioners before the passing of the act, tithes have been declared to be effectually merged by the act of a person absolutely without title to them (s); it being held that both the intention and the words of the act were as much directed to cases in which the person effecting the merger had no title at all to the tithes, as to those in which he had merely an insufficient title. Of the Mevfjer of the Security. 1445. The benefit of the security will also be lost when it merges in another security of a higher nature. As if a security by specialty be taken for a debt, which was only secured by simple contract if) ; and if a person having a security by deposit of deeds, afterwards take a legal security on the same projocrty for other advances, without any stipu- lation as to the first debt, the possession under the deed merges the former possession, and the security stands for the advances only (?<). An original mortgage will not, however. {p) Q&,7 Will. 4, c. 7] ; 1 & 2 Vict. (s) Walker v. Bentley, 9 Hare, 629. c. 64 ; 2 & 3 Vict. c. 62; 9 & 10 Vict. {t) Sec Saunders v. Milsomc, L. E., c. 73. 2 Eq. 573. (,?) 2 & 3 Vict. c. 62, s. 1 ; 9 & 10 (?/,) Vaughan v. Vanderstegen, 2 Vict. c. 73, s. 19. Drew. 289. (r) 9 & 10 Vict. c. 73, s. 19. IN niGIIEll SECURITY. 801 be merged by a new mortgage taken as security for the old debt and further advances (u) 1469, 1446. It is a necessary condition for merger of a security, tliat the remedy given by tlie higher, be co-extensive with that imder tlie inferior security. Therefore if several be indebted on a joint and several note, and some only of them execute a mortgage, the liability on the note Avill not merge in the covenant in the mortgage (x). But the original remedy against several co-debtors may merge in a judgment obtained against one of them, if the debt be the same, and the creditor, having notice of the joint liability, elect to take his remedy against one of them only (y). In such a case, if the co-debtors become bankrupt, the creditor cannot prove against the joint estates. But a voluntary elec- tion to take the single remedy is necessary to effect the merger, which does not arise if the creditor has not an oppor- tunity of suing the other co-debtors (z). 1447. There will be no merger unless the securities are vested in the same persons (a) ; the interposition of a trustee for the creditor is therefore commonly resorted to, for the purpose of preserving the remedies under the original security. 1 448. It is also necessary for merger, that the debt com- prised in each security should be the same. Therefore a bond conditioned for the payment of sums already, or thereafter to be advanced, will not destroy the remedy on simple contract for the existing balance of account (i); nor, on the other hand, will the remedy for a debt of an indefinite amount be merged in a bond for a limited sum (c). 1 449. The same rules hold where the higher security con- (r) Tenison v. Sweeny, 1 J. & L. (y) Ex parte Higgins, 3 De G. & J. 710. 33 ; 4 Jur., N. S. 595. (.<•) Twopenny v. Boys, 3 B. & C. (r) Ex parte Waterfall, 4 De G. & 208; AnscU r. Baker, 15 Q. B. 20; S. 199. Sharpe v. Gibbs, 1(5 C. B., N. S. 527 ; (a) Bell v. Banks, 3 M. & G. 258; Boaler r. Mayor, 19 C. B., N. S. 76; 11 3 So. N. K. 497. Jur., N. S. 565; 34 L. J., C. P. 230; (*) Holmes r. Bell, 3 M. & G. 213. explaining Price v. Moulton, 10 C. B. (c) Norfolk Bail. Co. v. M'Namara, 561 ; Ex parte Bate, 3 Dea. 358. 3 Exch. 628. 802 MERGER OF SECURITY. sists of a judgment ; for although, by suing out execution on the judgment, the debt Avill be extinguished to the extent of the sum realized by the execution, yet unless the demand be the same, and the judgment be confessed to the same persons who hokl the inferior security, or it be shoAvn that the judg- ment was accepted in satisfaction of the debt due on that security {d), or unless the creditor have elected to proceed against one only of the debtors (e), there will be no merger. It is also held that a judgment or other higher security, which for ordinary purposes would extinguish the original debt, will not so extinguish it as to prevent the creditor from making the debtor a bankrupt in respect of that debt, so long as it remains unsatisfied (jT). 1450. There will be no merger if the higher security be ineffectual. If, therefore, there be an equitable mortgage, with an agreement for a legal mortgage, and the latter be made but cannot take effect by reason of a prior act of bank- ruptcy, the bankruptcy which avoids it will revive the equit- able security (f/). 1451. Merger of a security may be prevented by an expressed or implied intention to the contrary (1410). A recital in the security that it is given by way of further or collateral security, will prevent it both at law and in equity {h), and an intention against it may be sufficiently shown from the nature of the transaction, or the acts of the parties : as where a reversionary lease was deposited as security, and the debtor afterwards purchased and deposited with the same lender, as security for another sum, the lease in possession, it was held that there was no merger {€). Of Waiver of the Security. 1452. Waiver may be either express or implied. In {(1) Drake v. Mitchell, 3 East, 251 ; (//) Ex parte Harvey, 1 Mont. & C. Bell V. Bariks^ 3 M. & G. 258 ; 3 Scott, 261 ; 3 Dea. 547. N. R. 497. (/t) Twopenny v. Boys, 3 B. & C. (c) Ex parte IIifrf?ins, 3 Dc G. & J. 208 ; Ex parte Pennell, 2 M., D. & De 33 ; 4 Jur., N. S. 595. G. 273. (/) Ex parte Griffiths, 3 De G,, M. (?) Ex parte Whitbread, 2 M., D. & & G. 174. De G. 415. WAIVER OF SECURITY. 803 cases of express waiver, no greater scope will be given to the language than the words will naturally bear. A waiver clearly limited by the words to part of the security, will not, therefore, affect the mortgagee's right over the residue. Where a mortgagee surrendered his legal interest in a lease- hold security to enable the mortgagor to provide another security, upon which the mortgagee agreed to take a puisne incumbrance, but stipulated against prejudice to any other security that he might have for his debt, he and his assignee were held to be still entitled to the benefit of the covenants in the first mortgage, the legal interest only, and not the covenants, being Avithin the operation of the surrender (Jt). On the other hand, the plain meaning of words will not be restricted, on the representation of one of the parties that a more limited waiver was intended. And where a party to a suit consented by the decree to waive all right of priority, the court refused (J) to vary the decree after inroLment, on the ground of mistake ; referring, at the same time, to the danger of acting upon the supposition of what was intended by the parties, in the presence of a direct expression of intention. 1453. The court Avill not be anxious to imply waiver from a mere omission, or other circumstance, from which the inten- tion cannot fairly be inferred. Thus, where it was provided by the mortgage deed, that, as between the mortgagor and his surety, a certain part of the security given by the prin- cipal, should be primarily liable to the debt, without men- tioning the rest, it was held(m), that the surety upon paying ofi" the debt, had not lost, by the omission, his right to a transfer of the whole security. So where the surety pays ofi' the debt, or interest in arrear, his priority is not waived (?/) in favour of a subsequent mortgagee, by reason of his pay- ment having been included in tlie security of the latter, and of the surety's having taken from Inm a note to that {h) Greenwood v. Taylor, 14 Sim. (m) Bowker c. Bull, 1 Sim. N. S. 29; 505 ; S. C. nom. Att-Gen. v. Cox, 3 15 Jur. 4. H. L. C. 240. (/t) Beckett v. Booth, 2 E(i. Ca. Abr. (Z) Drought V. Jones, 4 Dm. & War. 595. 174 ; and see 1 Cox, 56. 80-t WAIVER OF SECURITY effect. An intent ion to take an additional security, and not a waiver of his old right, is to be inferred from such a transaction. An assignee who has completed his title to the property- does not, by making an arrangement with the mortgagor, for sale of part of the estate, with the object of reducing the debt, forfeit his priority over the rest (o). 1454. A mortgagee may lose his right to payment of his mortgage debt out of the security in preference to all other claims thereon, by carrying on or adopting proceedings which are inconsistent with that right. If a legal mortgagee com- mence (p) a suit for administration and sale of his deceased mortgagor's estate, or adopt (</) such a suit, — as by filing a bill of revivor where the original suit has become defective, praying for the benefit of that suit, or even by coming in and seekino: the benefit of the decree in the orig-inal suit — instead of suing for foreclosure, which is the remedy proper to his security ; by thus seeking a new right which is not included in his contract, he comes within that rule of administration suits, which makes the costs of the suit costs of administra- tion, and payable, in the first instance, out of a deficient estate in preference to the debts of the deceased : and the mortgage debt is accordingly postponed to those costs. 1455. But it is not to be so understood of a suit in which an equitable mortgagee is entitled, by his contract, to sell the estate and to recover the difference by proof against the mort- gagor's assets. In such a case the equitable mortgagee may seek administration and sale (605) of the mortgagor's estate, and may yet preserve his right to full payment in priority to the costs of suit (r) ; his bill being framed for application of (o) Martin v. Sedgwick, 9 Beav. 333. (jj) Kenehel v. Scrafton, 13 Ves. 370 ; Wontner v. Wright, 2 Sim. 543 ; and see Brace ■y.Duchcss of Marlborough, Mose. 50. (^) White V. Bishop of Peterhorough, Jac. 402 ; Armstrong •;;. Storer, 14 Bcav. 535. (r) Tipping v. Power, 1 Hare, 405. Note, that in the case of Aldridge v. Westbrook, 5 Bcav. 188, it is said (but not on the authority of the reporter himself) to have been held generally, that where a mortgagee, being also a creditor by simjde contract, files a cre- ditor's bill, he is entitled to payment of his mortgage debt before the costs of suit arc paid. It may be gathered from the report, that a legal mortgage was here in question ; but the complication BY INCONSISTENT PROCEEDINGS. 805 his security, or the proceeds of it in the first place in discharge of his debt, and afterwards for the usual accounts of the debtor's other estates, and for satisfaction thereout of the re- sidue of his own demand, on a proof for the whole debt (s), pari passu with other creditors in equal degree. 1456. And the right of a legal mortgagee is not, any more than an equitable right, altered by a mere decree for sale, unless it appear that the terms, upon which the sale was con- ceded, exclude the usual right of priority ; for a mere de- cree for sale works no change in the rights of the parties. Therefore a legal (^) or equitable (ii) mortgagee, who simply consents, in a foreclosure (a:) or administration (y) suit, to a sale of the estate, does not thereby give up his right to pay- ment in priority to the costs of the suit; and if several in- cumbrancers' estates be sold under a decree, by consent of the incumbrancers, the proceeds of the sale of each Avill be treated as the estate would have been treated, the mortgagees being of the case and the nature of the report are such, that no reliance can be ])hiced on them as opposed to the deliberate and careful decisions cited. (*•) Jklason V. Bogg, 2 :\ry. & C. 443; disapjjroving of Greenwood v. Taylor, 1 R. & M. 185, where it was held, that the proof ought to be for the deficiency only, as the rule is in banki-u])tcy. See Tuckley v. Thompson, 1 J. & H. 120, and 29 L. J., N. S. Ch. 548 ; Wiseman r. Carbonell, 1 Eq. Ca. Abr. 312. Where the unpaid vendor of real estate had taken a decree by consent, under which the estate was to be sold upon non-pay- ment of the purchase-money at a cer- tain day, and if he were not ]md the whole he was to stand as a creditor only for the balance, it was held, that in a creditor's suit he could only prove for the balance, the death of the debtor not giving him a right to more than he had already contracted for. (Rome v. Young, 4 Y. & C. 204.) {t) Hcpworth V. Heslop, 3 Hare, 485; Carrv. Henderson, 11 Bcav. 415. (w) Wild c. Lockhart, 10 Beav. 320; Barnes v. Racster, 1 Y. & C. C. C. 401. (./•) Upperton ;•. Htu'rison, 7 Sim. 444 ; Wild V. Lockhart, Barnes v. Racs- ter, supra. (_?/) Chissum r. Dewcs, 5 Russ. 29 ; Carr v. Henderson, 11 Beav. 415; Lang- ton V. Langton, 7 De G., M. & G. 30 ; 1 Jur., N. S. 1078. It was held, in the court below in this case, that the mortgagee's claim should be post- poned to the costs, on the ground that the proceedings were carried on by as- signees of the equity of redemption for the safety of the estate ; and that though, as between the incumbrancer and the mortgagor, the latter would have been bound to indemnify the es- tate against such charges, yet where the estate is deficient, and the equity of redemption in the hands of a j>ur- chascr (between whom and the mort- gagee there is no privity of contract), the expenses should fall ujioii the es- tate, or upon funds dcri\cd therefrom, in priority to the mortgagee's claim. (18 Jur. 1002.) 806 WAIVER BY INCONSISTENT TKOCEEDINGS. paid their respective debts, interest, and costs, according to priority, without a prior deduction of the costs out of the general fund (r). If, immediately after the direction for an account of the principal and interest on the mortgage, the costs of the mort- easrees are directed to be taxed, there is an inference in the absence of express agreement, that the usual priority was intended to be reserved {a). And upon the same principle, if an equitable incumbrancer have consented to the sale of part of the estate to facilitate the execution of a trust deed for payment of the incumbrancers according to their priorities, he cannot be compelled to join in completing the sales on the terms that the purchase-monies shall first be applied in discharge of the expenses of sale, or on any other terms than complete redemption (b). 1457. The rules, therefore, are, I. That if a mortgagee commence, join in, or actively seek the benefit of a suit for sale and administration of the incum- bered estate, he will lose his priority over the costs of that suit. II. That by simply consenting to the sale in a foreclosure or administration suit, the legal or equitable mortgagee only settles the alternative, in which the decree directs that the sale be made, (i. e. free from or subject to incumbrances), but does not waive his right to priority against the proceeds. The statutory power which is now vested in the Court of Chancery, to decree a sale instead of foreclosure, does not afiect these rules, even as regards the infant heir of the mort- gagor (r). 1458. A personal decree for payment of a debt against an executor and devisee, who has admitted his liability to pay the debt out of the property devised by the deceased debtor, is consistent Avith the preservation of the liability against (z) Wild V. Lwkhart, 10 Bcav. 320. Mac. & G. 098. («) Barnes v. Kacster, 1 Y. & C. C. (c) See Wade v. Ward, 4 Dr. 602 ; C. 401. but see also Macrae v. Everton, 4 Jur., (fj) Crosse v. General Reversionary N. S. 9G7. and Investment Company, .'5 I)e G., WAIVER OF RIGHTS AGAINST SURETY. 807 the estate, though no remedy be given against it by the decree (f/). 1459. A person who claims under a puisne incumbrancer, but has an advantage over an earlier one by virtue of the custody of deeds, and a declaration of trust (1202), does not forfeit his advantage (<?) upon purchasing the equity of re- demption from the mortgagor, by contracting to retain part of the purchase-money to be applied in redeeming the prior mortgage, or (if no amicable arrangement could be made) in recovering the property adversely. Where a trustee becomes indebted to the trust, under cir- cumstances which entitle his co-trustee to a lien upon his estate for the debt, and the latter accepts a security upon part of the estate, he waives his general lien {f). 1460. The creditor may also, by various acts or omissions, waive or lose his right against the surety of the principal debtor. This will, of course, happen where the surety is dis- charged by reason of the giving by the creditor to the debtor of further time, without the surety's consent ; or Avhere, by reason of any other of the various acts not directly relating to the security, a release takes place under the general law of principal and surety ( ^7). 1461. As to those acts or omissions which relate directly to the security ; a surety is entitled to the benefit of every se- curity which the creditor had against the principal debtor, (821), (1366), the whole or any part of whose debt he has discharged (A) ; the creditor being bound to hold and preserve the securities for the benefit of the surety, so that on payment of the debt he may receive them unimpaired (/), and this, whether the surety was or was not aware of the existence of (r/) Dc Sorbcin r. Bland, 2 Dc G. & Tudor's Leading Cases in Ecuiity. J. 158; 4 Jur., N. S. D.")!). (/() Mayhcw v. Crickett, 2 S\v. liU ; (t-) Stanhope v. Earl Verncy, 2 Eden, Goddard v.Whyte, 2 Gif. 449 ; (J .Inr., 81. N. S. 13G4 ; Allen v. De Lisle, 3 Jur., (/) Mason v. Morley, 11 Jur., N. S. N. S. 928. 459. (/) Pledger. Bnss,Joh.GG3; 7 Jur.. ( g) See Pitman on Principal and N. S. 695 ; Capel v. Butler, 2 Sim. & Surety. And see Recs f. Beirington, S. 457 ; per Turner, L. J., Wlicatloy v. and the notes thereon in 2 White & Bastow, 7 Dc G., M. & G. 201. 808 WAIVER OF RIGHTS AGAINST SURETY. the securities (k), and Avliether tliey were taken by the creditor before or after the contract of suretyship (/) ; and even though the surety have taken a particular indemnity upon other pro- perty ; if he have done so without knowledge of the security held by the creditor, which was available for his own indem- nity (m). 1462. The right of the surety extends to all the equities Avhich the creditor whose debt he has discharged could have enforced, not merely against the principal debtor, but against all who claim under him, and is, therefore, not affected by a further mortgage executed by the debtor to a person who had notice of the first mortgage, though the subsequent mort- p-ao-ee sot in the legal estate : nor by the circumstance that at the date of the first mortgage the surety was indebted to the principal debtor in respect of the mortgaged property (n). And where the debtor, having given collateral security for an orio-inal debt, afterwards borrowed a further sum which was guaranteed by the surety, he was held entitled to the benefit of the surplus value of the securities in his creditor's hands, after the discharge of the original debt, towards payment of that for which he was surety (o). 1463, It Avas formerly the law, that if upon payment of the debt by the surety, the security was discharged, (unless (Z;) ]^Iayhew v. Crickett, supra ; Bcav. 237.) Lake v. Brutton, 18 Beav. 34 ; 8 De («) Drew v. Lockett, 32 Beav. 499 ; G., M. & G. 440. 9 Jur., N. S. 786. (I) riedge V. Buss, Job. 003 ; not- (o) Praed v. Gardiner, 2 Cox, 8G ; ^vlthstanding Newton v. Chorlton, 10 Copis v. Middleton, T. & R. 224 ; Hare, 646; 2 Dr. 342 ; which, however, Hodgson v. Shaw, 3M. & K. 183, 195. was affirmed on app., see Pearl v. Dea- But sec Allen v. De Lisle, 5 W. R. con, 24 Beav. 186 ; 1 De G. & J. 461 ; 158. So, by the Dutch law, as adopted Coates V. Coates, 10 Jur., N. S. 532. in British Guiana, the satisfaction of (m) Lake v. Brutton, and see Bran- the principal debt extinguishes the don V. Brandon, 5 J ur., N. S. 256. mortgage or pledge, and the person who Though under different circimistanccs, pays it lias no right to stand in the a person, who had made his own in- place of the original creditor without terest in the mortgaged property lial)le an express bargain that he may do so ; to the debt, was held to have lost his the transaction being then an assign- right against the principal security, by meiit, luul not a discharge of the se- taking from the principal debtor by curity. (Wilkinson v. Simson, 2 Moo. way of indemnity a security upon I'. C. 275.) other property. (Cooper v. Jenkins, 32 STATUTOliY RIGHTS OF SURETY. 809 the surety had an independent right to be recouped out of the debtor's estate, as where he was the debtor's executor (y),) the surety's claim to the benefit of the security, so far as it was discharged, was lost. It has, however, been provided by the Mercantile Law Amendment Act, 1856 (r), that every person, Avho, being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security, shall or shall not be deemed at law to have been satisfied, by the payment of the debt or performance of the duty ; and such person shall be entitled to stand in the place of the creditor, and to use all remedies, and, if need be, upon a proper indem- nity, to use the name of the creditor in any action or other proceeding at law or in equity, in order to obtain from the principal debtor, or any co-surety, co- contractor, or co- debtor, as the case may be, indemnity for the advances made, and loss sustained, by the person who shall have so paid such debt or performed such duty ; and such payment or perform- ance, so made by such surety, shall not be pleadable in bar of any such action or other proceeding by him : Provided, that no co-surety, co-contractor, or co-debtor, shall be entitled to recover from any other co-surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last-mentioned per- sons shall be justly liable. The statute applies to a co-debtor as well as to a surety, and gives a right to an assio-nment of a iudirment against the debtors, although by discharge of the debt the judgment is .satisfied {s). 1464. The surety being thus interested in the mortgaged (j) Wms. Exors. 1671, ed. 4 ; see (s) Batchellor v. LawTcncc, 6 Jur., Hepworth v. Heslop, 6 Hare, oGl. N. S. 1306. (/•) 19 & 20 Vict. c. 117, s. 5. M. VOL. II. 3 G 810 DUTIES OF CEEDITOK TOWARDS SURETY. estate, the neglect of the creditor to preserve the securities for the benefit of the surety will cause the release of the surety, either entirely or to the extent of the lost fund. Such may be the consequence of the creditor's neglect to file a warrant of attorney, whereby he is prevented from entering up judgment and issuing execution in pursuance of his con- tract with the surety (t). So, if the loss of the property, to Avhich the surety may look for indemnity, arise from any dealing between the creditor and the debtor, as where the latter surrendered to the creditor the lease, for the performance in the covenants in Avhich the surety had given security (u) ; or if, instead of proving, as he ought to do, under the bank- ruptcy of the debtor, the mortgagee, without notice to the surety, release the assignees and the bankrupt's estate in con- sideration of a conveyance of the equity of redemption (x). Nor can the creditor, as against the surety, apply the security in payment of any other debt than that for which the surety was liable. Hence, where a debt due from a tenant to a land- lord was secured by a mortgage of furniture, and by a surety, and the landlord afterwards seized the same furniture for rent, it was held that the proceeds must first be applied in discharge of the mortgage debt ( y). 1465. But the creditor is under no obligation not to as- sign the securities or the debt. Upon such an assignment the creditor's obligation to preserve the securities attaches upon the assignee, who also acquires the rights of the creditor against the surety ; and those rights are not lost by the neglect of the assignee to give notice of the assignment to the surety ; though by omitting to give such notice he will risk the consequences of a payment by the surety to the as- signor (z). But if the assignee by neglecting to complete the transaction, as by omitting to give notice to the holder of the fund which constitutes the security, leaves him to dispose of (t) Watson V. Allcock, 1 Sm. & G. (x) Pledge v. Buss, Joh. Gf>3. 31 i) ; 4 De G., M. & G. 242. ( y) Pearl v. Deacon, 24 Bcav. 18C, ; («) Lord Ilarberton v. Bennett, 1 1 Dc G. & J. 4G1. Beat. 386 ; and see Ewin v. Lancaster, (z) Wheatley v. Bastow, 7 Dc G., M. OB. &S. r.71. &(;. 201. surety's kioiit to securities. 811 it without notice ol" the e([uity of the surety, who therehy loses the benefit of it, he is discharged (a). 1466. W'hen a surety pays oft" tlie mortgage debt of the principal debtor, being entitled to the benefit of all the secu- rities, ho may in bankrui)tcy set off the amount which thus becomes due to him from the owner of the equity of redemj)- tion, against monies due from himself to such owner: and where the equity of redemption belongs to a joint-stock com- pany, to Avhich calls are due from the surety, he may set <)ft\^) his payment against the calls, as if he had been mort- gagee when they fell due ; and his right is not affected by the princii)lc of the bankrupt law, by Avhich a debt assigned after the bankruptcy cannot be set oft" against a debt due to the bankrupt's estate. 1467. If a surety pay a smn of money in discharge of his guarantee, the security of the j^rinclpal debtor not being de- livered up, nor any thing said about it, the conclusion is that the original security is intended to remain as to the balance, and it will not be treated as released (c). 1468. The discharge of one of several co-sureties or other joint debtors is a release at law (1399) of all of them(c?), the efiect of which will not be altered by any attempt on the part of the creditor to reserve his rights against the re- maindered). And under an agreement which operates as a satisfaction of a debt, though not as a release at law% the rights of the creditor cannot be reserved against the surety ; such a reservation being inconsistent with the security (/). 1469. When it is contended that the benefit of a security has been w^aived by the acceptance of another security in its ])lace, it is for the owner of the estate to show that it was dis- charged by the taking of the new security, and not foi- the creditor to disprove the substitution of the new security for (,/) Strange v. Fooks, 4 Gif. 408 ; 9 (d) Y. B. 21 Edw. 4, 81, B. PI. 33 ; Jur..N. S. 943. Nicholson v. Rcvill, 4 A. & E. 675. (A) Ex jiiu-te Barrett, 34 L. J.. (^') Evans /•. BnMnl>ri(l<:o, 2 K. & J. Bank. 41. 174, notwitiistauding Kx i>:irto tiilTard, (c) Waugh U.Wren. ".» .lur., N. S. CVes. 805. . 3G5. (/) Webb V. Hewitt. 3 K. & J. 438. 3 G 2 812 ACCEPTANCE OF NEW SECURITY. the old {(/). The mere acceptance of a personal security for interest in arrear, or other charge Avhether express or im- plied, is therefore not a waiver of the original security, even if a receipt be given for the amount (A) ; though it is consi- dered that against a purchaser for valuable consideration of a subsequent interest in the estate, on the faith of an assur- ance, (supported by the receipt,) that no interest was due to the first incumbrancer, the latter would lose his remedy against the estate {i). The absence of any mention of the original security, and the reservation of interest at a different rate from that which was secured by it, have been treated as evidence that the new security was taken by way of substitution (A). 1470. Again, where a creditor, having a security on the funds of his debtor for part of his debt, takes another secu- rity on the same funds for his whole debt ; or having a security upon his debtor's funds, takes afterwards, either alone, but on behalf of himself and another creditor, or jointly Avith such other creditor, a security for both debts on the same funds, the earlier and (in the second case) separate security keeps its force and rank, and may be separately dealt with (Z). Hence, where a purchaser had given several bills of exchange for the purchase-money of a ship, and directed his agent to pay the amount of one of such bills to the vendor, out of the earnings of the ship, and afterwards directed the same agent to pay out of such earnings the amount of any current bills given in payment for the ship ; ((7) This kind of extinguishment of pression of the animus novandi. a security was called in the civil law (Colqu. Sum. R. C. L. §§ 1852 — 1855.) novatio ; podtioa where a new obliga- (A) Barrett v. Wells, Pre. Ch. 1.31 ; tion was substituted for the former one ; Hard wick v. Mynd, 1 Anst. Ill; cumulativa, where a new one was " Curtis v. Rush, 2 V. & B. 41G ; Saun- creatcd without destroying the first ; ders v. Leslie, 2 Ba. & Be. 509. with a delrr/at id when a new debtor was (/,) See observations of Sir A. Hart, substituted ; without it when the debtor Kemmis v. Stepney, 2 Mol. 85. and creditor remained the same, and (/,;) Brettle v. Burdett, 2 De G., J. the obligation only was changed. And & S. 244. (as it is in our law) the subsequent (I) Miln v. Walton, 2 Y. & C. C. C. security was cumulative and not substi- 354. tutionary, unless there were a clear ex- WAIVER OF VENDOR. S LIENT OX LAND. 813 and the agent having accepted both orders, discounted tlie first bill, Avithout notice of any other priorities, he was taken to have discounted it, as he had a right to do, on the faith of its giving a first lien upon the freight : and his lien was ac- cordingly preferred to that of the holders of the other bills. 1471. The lien of the vendor of land for unpaid purchase- money will not be destroyed, though the vendor take a draft, note or bill of excliange (m), negotiated (n) or otherwise (these being but modes of payment), for the unpaid purchase-money ; nor by his taking security by mortgage, bond or covenant (o) from the purchaser himself; and as to a covenant, whether it be separate or contained in the purchase deed ; nor in the case of land taken by a public company, where the sum due exceeds that paid into the bank, by the payment of the valua- tion and the giving of the bond under the act (p) ; nor by the purchase-money being made payable at a future day — as within a given time from the vendor's death [rj). It may be saved, by a pi*o\'iso that the estate shall not be assigned until payment (r), Avithout the consent of the vendor and the surety of the purchaser. 1472. But if the consideration for the sale be the security itself, and not the sum secured (.s-) ; or if it appear by direct agreement, or can be clearly inferred from the circumstances, that the purchaser intended to rely upon the security only, and not upon the land, then the lien will be gone (t) ; for it is evident that the vendor has already got all that he bar- gained for. NoAv as the lien is lost in these latter cases, not by the mere (m) Hughes v. Kearney, 1 Sch. & C. C. 421, n. Tx>f. 132 ; Grant r. Mills, 2 V. & B. (p) Walker r. Ware, &c., Railway 306 ; Gibbons v. Braddall, 2 Eq. Ca. Co., L. R., 1 Eq. l;)5. Abr. 682, M. N. ; Ex parte Peake, 1 (q) Winter v. Lord Anson, 3 Russ. Mad. 346. 488. (/() Ex parte Loarinfr, 2 Rose, 70. (;•) Ellidtt r. Edwards, supra. (o) Tardiff v. Semghan, cit. 1 Bro. (,«) Winter r. Lord Anson, 1 Sim. & C. C. 422; Elliott r. Edwards, 3 Bos. & St. 434 ; Clarke v. Royle, 3 Sim. 409 ; P. 181 ; Nairn r. Prowse, 6 Yes. 752 ; P.uckland v. Pocknell, 13 Sim. 40r.. Mackreth v. Symmons, 15 Ves. 328 ; (f) Parrott r. Sweetlan.l, 3 Myl. & Hope V. Booth, 1 B. & Ad. 408, not- K.655 ; Winter r. Lord Anson, 3 Russ. withstanding Fawell v. Heelis, 1 Bro. 492. 814 WAIVER OF vendor's LIEN ON LAND. taking of a security, but by the taking it by way of substitu- tion for the purchase-money, the question becomes in a great measure one of intention, and must be decided by the circum- stances of each case. A stipuLation for payment of the purchase-money within a certain time after a resale (u), and the taking of a security by bond and mortgage of part of the estate (x), have thus been held indicative of an intention to abandon the lien en- tirely, and so has a sale in consideration of the payment of an annuity for several lives to be secured by the bond of the purchaser; chiefly on the ground that the latter could not have intended to take the estate subject to such a burthen {?/). So where the vendor was party to a mortgage, made by the purchaser to a person Avho had advanced part of the purchase- money, his lien was held (z) to be gone. And the taking a mortgage for part, and of a note payable on demand for the residue of the purchase-money, has been held (a) to have a like eff^ect ; on the strong but perhaps (says Lord Eldon) (b) not conclusive inference, that the charge for a part showed an intention not to charge the residue. If the bond (c) in- ,stead of being given by the purchaser alone, be also joined in by sureties, it is thought that the lien no longer remains. It has also been decided to be lost, by taking as special security a sum of stock, which, being sufficient or probably sufficient to cover the purchase-money, was held (c?) to have been pledged, that the vendee might have absolute domi- nion over the land ; and, on the same principle, it has been thought (e), a mortgage upon another estate of the vendee would have a like operation ; the obvious intention being to burthen one estate, that the other miglit be free. Sir W. Grant was of opinion, that a totally distinct and independent (?/) Ex parte Parkes, 1 Glyn & Jam. (h) 15 Ves. 344 ; the report in Vcr- 228. non, however, gives no reasons for the (a;) Capper?;. Spottiswoode,Taml. 21. judgment. (y) Dixon v. Gayfere, 21 Beav. (c) Good v. Pollard, 10 Price, 109 ; 120; 1 De G. & J. 0",. Sugd. V. & P. 8G0, llth cd.; 673, (z) Good V. Pollard, 9 Price, 544 ; 10 14th ed. id. 109. (d) Nairn v. Prowse, 6 Ves. 752. (a) Bond v. Kent, 2 Vcrn. 281. (e) Id. waivp:u of vendou's lien on land. hLO security would l)c a suLstitutioii loi- the lien, and iml a cndit on account of it ; by \vlii(-li he meant, says Lord VAduwi f), not that a .security, but the nature oF a security, nii;;ht amount to satisfactory evidence, tliat a lien was not intended: and the latter learned judne adds, that a mortgage is not con- clusive ffround for the inference that a lien was not intended, and that he could put many instances, that [where] a mort- gage of another estate for the purchase-money would not be decisive evidence of an intention to give up the lien. The opinion of Sir W. Grant appears to be acquiesced (^) in as a general rule by Lord St. Leonards; and the doctrine which may perhaps be deduced from the different cases cited, is, that the taking a distinct security is always prima facie evidence that the lien lias been abandoned ; but that this in- ference may be rebutted by proof of an agreement, or of circumstances leading to a presumption of an agreement, to the contrary. 1473. Although the mere acknowledgment in the deed for the whole purchase-money will not pe7- se affect the lien, yet the receipt may be given under circumstances which are in- consistent Avith an intention to preserve it ; as where the vendor, having notice that the purchaser was buying with a certain trust fund, took from him a bond and deposit for a sum recited to have been lent lum to comi)lcte the pur- chase (A). 1474. ^^'hcre a surety undertook to pay the debt of his principal, and to keep down annuities granted by him, and to give him an indemnity against such annuities, upon having a mortgage in fee to secure the debt and value of the annuities, and afterwards the principal sold the reversion of the estate to the surety for the amount of principal and interest secured by the mortgage, and both joined in conveying to a third per- son without mentioning any lien to be had by the principal, (/) In Muckrcth ?•. SjTiimons, 15 on this subject at length, sec id., ami Ves. 3-tiS. Mackrctli v. Synimuns, 15 Vcs. 328. (<7) V. .*t r. HVl, mil (.d. ; r.75, (//) Mulr r. Jolly, 2G Bcav. 143. 14th ed. For the cases and doctriuc 816 WAIVER OF vendor's LIEN ON GOODS. it was held (?) that for part of the consideration, viz. the debt, there was a lien, but not as to the annuities ; the silence as to the debt, and the fact that there was an indemnity against the annuities, being thought to show strongly that, as to the lat- ter, the personal security of the surety was alone relied on. And it was held material, that the sale was only of the rever- sion of the estate, inasmuch as it was unlikely that a person dealing for the consideration of annuities, and the purchase of a reversion which mioht not fall in until all the annuitants were dead, would rely on that reversion in addition to the indemnity already given by the bond. 1476. The lien of the vendor of goods (321) is also not defeated by part payment of the price (A), or by recovery against the purchaser in an action for goods sold(Z). But the acceptance of a negotiable security affects the lien. For, subject to the obligation of paying the price of the goods, the right of property and possession from the time of sale are in the buyer ; and if a bill be drawn and accepted for the price, or credit be otherwise given, he may exercise control over the goods during the currency of the bill, or until the credit expire ; though the right of possession will be defeated by his insolvency before he obtains possession (m). 1476. In other cases of possessory liens, it is also held to be generally inconsistent with the lien to take security for the debt, especially if the security be made to include interest ; or to enter into a special contract for a particular mode of payment (/z). But in the one case, the lien remains as to sums which are not covered by the security (o) ; and in the (i) Matkreth v. Symmons, 1 5 Ves. 328. (k) Hodgson V. Loy, 3 T. R. 440 ; Feise ?;. Wray, 3 East, 93. (I) Houlditch V. Desanges, 2 Stark. 337. (m) Per Bayley, J., in Bloxam r. Sanders, 4 B. & C.941, and in Miles r. Garton, 2 Cr. & M. .504 ; Edwards v. Brewer, 2 M. & W. 375. (n) Cowell r. Simpson, 16 Ves. 280; per Tindal, C. J., in Hewison v. Guthrie, 5 Biug. N. C. 755 ; 3 Scott, 298 ; Brownlow v. Keatinge, 2 Ir. Eq. R. 243 ; see Watson v. Lyon, 7 De G., M. 6 G. 288. The case of Cowell v. Simp- son was doubted in Stevenson v. Blake- lock, 1 Mau. & S. 535 ; but was adhered to by Lord Eldon in Balch v. Symes, infra, and acknowledged in Hewison r. Guthrie. (o) Balch V. Symes, T. & R. 87. WAIVER OF LIEN BY NEW SECURITY. 817 other, if a bill be merely taken without an agreement that it is to be in discharge of the debt, both debt and lien continue until the bill arrives at maturity, though the debt cannot be enforced during the currency of the billf/^). And the lien is not affected, where the security, not having been taken in discharge of the debt, (for upon evidence that it has been so taken the lien is at an end (q),) has turned out to be worth- less (r). As the negotiation of a bill is an approval of it, such an act terminates a lien which is to exist by agreement until the delivery of good and approved bills for the debt {s). The lien of a salvage creditor is not discharged merely by the taking of another security (t), and it is presumed that the same rule applies to other non-possessory liens. A lien is discharged by proof under the bankruptcy of the debtor, the proof being considered as equivalent to payment {u). But it is not destroyed by a right of set-off (x). Where the solicitors in a suit Avere changed, and a gross sum was paid to the new solicitors in satisfaction of all the costs in the suit, it Avas held that the lien of the former solici- tors on the fund in court for their share of the costs was gone, though they were not parties to the settlement, and that their only remedy was against the solicitors who had received the money (y). 1477. A mortgagee does not lose the benefit of his security by taking the body of his debtor in execution (r), and if he obtain judgment in ejectment, he may still have execution ( p) In re London and Rinningham, plaintiff in a suit may change his &c., Bank, 11 Jur., N. S. 31(J. solicitor, and by arrangement with (q) Bunney v. Poyntz, 4 B. & Ad. his successor may oust the former soli- 568 ; Pooley v. Budd, 14 Beav. 34. citor of his claim upon the fund. At (?•) Davies, dem. LowTides, ten. '^ law, -where judgment is given in favour C. B. 823. of a person who has employed a second (s) Homcastle v. Farran, 3 B.& Aid. attorney, the court will not permit the 497. latter to issue execution, without seeing {t) Kchoe V. Hales, 5 Ir. Eq. Tl. that the first attorney's costs arc paid ; 597. because of his lien. Per Lord Abingcr, (?/) Ex parte Hornby, Buck. S.'jl. C. B., followed in the Exchequer in (x) Pinnock v. Harrison, 3 M. & W. equity. Potter v. Hyatt. 2 Y. & C. 532. 112. ( y) Momington v. Wellesley, 4 Jur., (r) Davis v. Battine, 2 U. & M. 76. N. S. 60. According to this decision a 818 WAIVER BY EXECUTION AGAINST THE PERSON. against the debtor uiuler judgment in an action upon the covenant (a). And a solicitor does not lose his lien in equity, or it seems at law, by the execution of an attachment for non- payment of costs (6). 1478. If a judgment creditor, who under the powers of 1 & 2 Vict. c. 110, shall have obtained any charge, or be entitled to the benefit of any security, shall afterwards, and before the property so charged or secured shall have been converted into money or realized, and the produce thereof applied towards payment of the judgment debt, cause the person of the judgment debtor to be taken or charged in execution upon such judgment, such judgment creditor shall be deemed to have relinquished all right and title to the benefit of such charge or security, and shall forfeit the same accordingly (c). This provision does not apply to the arrest of the debtor in a foreign country upon mesne process in a new action for the debt ascertained to be due by the judg- ment, as such a proceeding is not an execution on the judg- ment (t?); nor to the taking a defendant into custody for contempt of court (e) ; though that process be adopted as a mode of reaching the property. And a solicitor, whose lien upon a fund is independent of the act, is not thereby de- prived of it when he attaches his client for the non-payment of costs (/). The discharge of the judgment debtor from custody under a ca. sa. also operates as a satisfaction of the judgment (^). A judgment creditor who takes his debtor in execution after bankruptcy elects to rely upon his legal remedy, and cannot have relief under the bankruptcy ; if he take him before the bankruptcy he has a reasonable time to elect (a) Colby v. Gibson, 3 Smith (K. B.) 224. 516. {d) Iloulditch v. Collins, 5 Beav. (*) Bawtree ^r.Watson, 2 Keen, 713 ; 497. Davies v. Bush, Younge, 358 ; Lloyd v. (e) Roberts v. Ball, 3 Sm. & G. Mason ; O'Brien v. Lewis, 4 Gif. 396 ; 168. 9 .Tur., N. S. 620, 7G4. (/) Lloyd v. Mason, 4 Hare, 132 ; (c) 1 & 2 Vict. c. 110, s. ](;. Ill the see Wells v. Gib])S, 3 Beav. 399. Irish Act, 3 & 4 Vict. c. 105, 8. 25, and {g) Cattlin v. Kemot, 3 C. B., N. S. see Maguire v. O'Eeilly, 3 Jo. & Lat. 796. WAIVER RY niVIXr. IT POSSESSION. 819 whether he Avill take the benefit of the execution, or seek relief under the bankruptcy (A). 1479. I'pon the satisfaction of a judgment the Senior Master of the Court of Common Pleas is empowered by statute, upon the filing Avith him of an acknowledgment in the fonn appended to the act, to enter a satisfaction or discharge as to any registered judgment, pending suit, lis pendens, decree, order, rule, annuity or rent-charge, or writ of execu- tion, charging the fees for registry and certificates mentioned in the act(2) (1820). 1480. It follows from the rule which requires a continuous possession for the support of a possessory lien (257), that if after the debt in respect of which the lien is claimed has arisen, the owner is allowed to remove the property and to return it, the lien is gone. Therefore, an innkeeper, who allows a guest to depart with his goods, gives him credit for that time, and cannot afterwards detain them but for debts which arose after they were returned (k). By the redelivery of a pledge the creditor also loses his right to it ; but the goods pledged, and it is presumed also such as are subject to a possessory lien, may be rede- livered to the debtor as the agent of the creditor without a forfeiture of the creditor's right (/). If the pledge be rede- livered for a temporary purpose, and the pledgor refuse to return it, the pledgee may sue for it in trover (m). If it be delivered back to the owner in a new character, such as that of a special bailee or agent, the pledgee is entitled both against the OAvner and a third person, the possession being consistent Avith his original right (99), But if he voluntarily place the pledge beyond his oavu power to restore it, as by agreeing that it may be attached at the suit of a third person, or by (h) Ex parte Mudic, 3 M., D. & De parte Bland, 2 Rose, Dl ; Artcza r. G. 66. Smallpicce, 1 Esp. 23 ; Bligh r. Davics, (i) 23 & 24 Vict. c. 115, s. 2. For 28 Beav. 211. practice, see Chitty's -iVrchbolil, by (Z) Reeves ;•. Capper, o Bing., N. C. rrcutice. 1 30. (k) Hartley v. Hitchcock, 1 Stark. (/«) Story, Bailm. § 299 ; Roberts v. 408; Jones v. Thurloe, S Mod. 172; Wyatt, 28 Beav. 211. Jones V. Pcarle, 1 Str. 557 ; and sec Ex 820 LI EX WAIVED BY INCONSISTENT CLAIM. giving up possession to the pledgor, or consenting that he shall alienate or pledge it to another, it is a waiver of the pledge («). 1481, The parting with the subject of the lien is also an abuse of, or inconsistent with, the right of possession derived from the lien. This right cannot be passed by a tortious transfer of the goods, as the property of the holder under the lien, and such an abuse of it will entitle the owner to main- tain trover for them (o). But the holder, intending only to give security to the extent of his lien, may do so at law without forfeiting his claim, by delivering the goods to his creditor with notice of the lien, and appointing him to keep possession as the servant of the bailee (/?); a transfer to an agent or trustee being also in equity no forfeiture of the lien (5-), and in equity the benefit of a lien may be assigned with the debt in respect of which it is claimed (r). On the bankruptcy of the person entitled to the lien, it will also pass to his assignees (s). It follows from this inability of the lien holder to transfer the property for any other purpose than the mere lien, that it cannot be taken in execution for his debt [t) ; the sheriff, subject to certain exceptions introduced by 1 & 2 Vict. c. 102, being entitled to seize nothing which he cannot sell. 1482. It is also inconsistent with and fatal to the lien if the holder claim to retain the goods for the debt of anothei than the rightful owner (m), or under another right than the right of lien (x) ; or, if in the case of a vendor, he authorize the purchaser to mortgage the property to a person who ad- vances money for the purchase : against that person there can be no lien for the balance of the purchase-money (3/). But (n) Storj', Bailm. § 299 ; §§ 359— 772. 365. (.';) Hudson r. Granger, 5 B. & Aid. (0) Scott V. New-ington, 2 Moo. & 27. R. 252; Legg v. Evans, 4 .lur. 11)7, (t) Legg ??. Evans, supra. Exch. (u) Dirks v. Richards, 6 Jur. 562. (p) M'Combie v. Davies, 7 East, 5. (ar) Boardman v. Sill, 1 Camp. (q) Watson v. Lyon, 7 De G., M. & 410, n. G. 288. (>/) Good V. Pollard, 9 Price, 544 ; (r) Bull r. Faulkner, 2 De G. & S. 10 id. 109. LIEN WAIVED BY LOSS OF POSSESSION. 821 it is no waiver of the lien, if upon demand of the goods the holder omits to state that he claims them under his lien (r) ; or if he claim more than he can make good ; as where having only a lien for a specific sum he claims also for a general balance (a). 1483. A loss of possession sufficient to destroy the lien may take place without an actual parting with the property. As if the holder take the goods in execution, and cause them to be sold by the sheriff, and becomes the purchaser from him ; here his actual possession may suffer no interruption, yet he holds as a purchaser and not by right of his lien, and the sheriff must have had legal possession for the purposes of the sale (i). And if a factor, having a lien against his principal, allows him to sell, and orders his own warehouseman to de- liver the goods to the principal's broker, who sells and makes out a bill of parcels to the principal, the effect is the same as a delivery to the principal (c). But notice by a banking company to all its shareholders, that a dividend will be pay- able on a future day, is no waiver of the lien of the bank upon the dividends of a shareholder who is indebted to the company (</). The distrainer of goods has no lien after they have been replevied, but is left to his remedy on the replevin bond (e). 1484. The possessory lien, however, is not destroyed where the loss of possession is involuntary. Hence the lien of the shipmaster, whose ship has been taken by an enemy, revives upon recapture, and the OAvner becomes a trustee for him(y ), and it seems that the lien of a factor or broker, who has quitted possession voluntarily, will revive, if he can re-acquire possession (^) ; but the lien of the vendor of goods, after his possession has been detemiincd in favour of the purchaser, will not revive by his replacing the goods in the vendor's pos- (z) White V. Gainer, 9 Moore, 41. (e) Bradyll v. Ball, 1 Bro. C. C. 427. (a) Scarfe i'. Morgan, 4 M. & W. (/) Ex parte Cheeseman, 2 Eden, 270. 181. (b) Jacobs V. Latour, 5 Bing. 130. (ff) Whitehead v. Vaughau, Cooke's (c) Kniger v. Wilcox, Ambl. 252. Bankrupt Law, 576, ed. 8 ; Levy r. id) Hague v. Danderson, 2 Exch. Barnard, 2 J. B. Moore, 34 ; 8 Taunt. 41. 149. 822 LOSS OF vendor's lien session for a different purpose, so as to enable the vendor to stop in transitu (A). 1485. As the lien will not arise where the possession was originally obtained by fraud or misrepresentation (z), so the parting Avith possession on a false representation Avill not affect either a pledge (A) or a lien, and the holder of goods who has been deprived of them by fraud, may, if he can, re- possess himself of them (/). 1486. The lien of the vendor of goods is destroyed by delivery of all the goods. The delivery of part of them may often destroy the lien, because it may import a delivery of the Avhole (1517); yet if it can be shown that there w^as an inten- tion not to deliver the whole, but to separate the part de- livered from the residue, the lien on the residue will hold(m). And where the goods remain in the vendor's warehouse, the mere gi\ing a delivery order to the purchaser will not prevent the lien ; even where by custom the goods would be consi- dered the property of the holder of such an order {n). So if the key of the place in which the goods are, be given to the purchaser, the key of an outer inclosure being left with the vendor; because though the former may have access to the goods, the latter can prevent them from being removed (o). 1487. Nor is the right of the vendor to retain the goods lost by his charging the purchaser with warehouse rent on account of them(/?), because the buyer having no right to possession until payment of the price, the vendor holding until payment may also charge the expense of doing so. In a case in which rent was actually paid, it was, however, ad- judged (rj) that the acceptance of the rent operated as a comj)lete transfer to the purchaser as much as if the goods (/t) Sweet V. Pym, 1 East, 4; Valjty v. Ilaywanl, 2 II. Bl. 504; Craven v. V. GibHon, 4 C. B. 837. Ryder, C, Taunt. 433. ((■) Madden t: Kcmpster, 1 Camji. (n) Townley v. Crump, 4 Ad. & El. 12. r,8. (A) Story, Bailm. § 299. (u) Milgatc v. Kel)l)le, 3 M. & G. (I) Tyson v. Cox, T. & R. 395; 100. Wallace r.Woodgatc, 1 Car. & P. 575. (p) Bloxam v. Sanders, 4 B. & C. (m) Bunney v. Poyntz, 4 B. & Ad. 941 ; New v. Swain, Dan. & LI. Merc. 508 ; Dixon r. Yates, id. 313 ; Payne Ca. 193. V. Shadbolt, 1 Camp. 427 ; .sec Stubey (y) Hurry r. Mangles, 1 Camp. 452. BY DELIVEKY OF GOODS. 823 had been removed to his own warehouse ; a decision which has sometimes been thought to be distinguishable on the groiuid of the actual payment, in the place of a mere charg- ing of the rent; and has also been judicially approved (/•), on the ground that there had been a sale to a sub-purchaser wIkj had paid the first purchaser, and that where the right of the vendor to hold the goods was suspended {i. c. while the bill drawn and accepted for the price was running), and the right of a third person intervened who had paid rent to the vendor, as for his own goods, the vendor could not say that he was not holding for such third person. It is not, however, clear that the rent was paid by the sub-purchaser. The statement is only that it was paid by the vendee ; and subject to the dis- tinction arising from the fact of actual payment, which seems to be unsubstantial, the decision in question appears in effect to have been overruled. In another case (s), in which a bill had been accepted for the price of the goods, part only of the property was sold and delivered to a sub-purchaser ; and the bill having been dishonoured, the vendor Avas declared entitled to hold the rest of the goods till payment of the price : the effect of a charge for warehouse rent by the vendor against the purchaser being considered to be a notification to the purchaser that he was not to have the goods till payment of the rent as well as of the price. And again (t), where the purchaser had agreed to pay certain duties on the goods which were afterwards properly paid by the vendor, though the latter had given a delivery order, and the purchaser had paid Avarehouse rent, it Avas held that the purchaser had no right to possession until payment of the whole price of Avhich the duties formed part. 1488. But the vendor's land, upon which the goods remain, may become the purchaser's Avarehouse if the delivery be in other respects complete. As Avhere timber cut and measured Avas sold, to be paid for at a future day, according to quantity, AA-ith licence to the purchaser to remove at his pleasure ; and (r) Per Bay ley, J., in Miles v. Gor- rM. ton, 2 Cr. & M. r)()4. (0 Winks v. Hassall. '.• 15. .K. (". .in'. (,<) Miles V. Gorton, :.' fr. & M. 824 RIGHT OF STOPPAGE IN TRANSITU. the trees were marked by the purchaser and measured, and the cubical contents of each calculated, but the whole contents not ascertained, it was held that there was no lien : nothing substantial remaining to be done by the vendor (m). 1489. AVhere credit was given on the sale of chattels, with an agreement that the vendor should have a claim on the goods until payment, it was held that the vendor's right imder the agreement was only a personal licence to retain the property, and that regaining possession he could not hold against the administrator of the purchaser {x). Of the R'ujltt of the unpaid Vendor of Chattels to stop them in Transitu. 1490. The lien of the unpaid vendor arises out of and until the completion of the contract of sale stands in the place of his original ownership (y) (321). We have seen that if the holder of a possessory lien upon a chattel abandon the possession of it, his lien is generally at an end (1480), and the ov^ner resumes his full rig-hts over it. But when a chattel is sold there is often an intermediate stage in which, although the unpaid vendor has parted with the property by the contract of sale, and with the actual possession to a car- rier or other intermediate holder for the purpose of delivery to the purchaser, his ownership is yet not absolutely divested; for if before actual or constructive delivery of the chattel tc the vendee the latter has become by insolvency unable to pay the price, the vendor may countermand the delivery and may resume the possession of the property. 1491. The property in the goods may also be revested in the vendor, by a rescission of the contract of sale, before the property and the possession have become united in the ven- dee. But this can be done only by consent of both parties to the contract (z) ; and the validity of the act may be subject (w) Tansley v. Turner, 2 Bing., N. ( y) Per Heath, J., in Oppenheim v. C. 151 ; and see Hammond v. Andcr- Russell, 3 B. & P. 42 ; per Bayley, J., son, 1 Bos. & P. N. R. 69 ; Elmore v. in Bloxam v. Sanders, 4 B. & C. 948. Stone, 1 Taunt. 458. (z) See Heinekey v. Earle, 8 El. & (ic) Howes V. Ball, 7 B. & C. 481. Bl. 410. EFFECT OF llESCISSION OF CONTRACT. 825 lo questions as to the right of the vendee to rescind, as against liis general creditors.. If therefore the vendee refuse to ac- cej)t the goods before they are delivered, or desire the Avharf- inger not to deliver them to liim, 1 hey will become revested in the vendor only upon his assent to the arrangement, though the assent may be given after an act of bankruptcy by the vendee provided the refusal were before that time, and the assent were given at the earliest period after notice of the refusal by the vendee («). But the vendor's right to countennand the delivery of the goods in the hands of an intermediate holder, is not depen- dent upon the vendee's consent ; nor is it an unlimited poAver ill the vendor to vary the consignment of the goods at his pleasure : it is only a particular privilege intended to protect him against the vendee's insolvency (Z») and not only must it be exercised adversely to the vendee (c), but it has been said that if the vendor get back the goods by any means provided he did not steal them, it Avould be inequitable to take them from him. 1492. Althouo;h the rescission of the contract, and tlie right of stoppage in transitu, thus differ, it has been thought that the latter may nevertheless have the effect of rescinding the contract of sale(ri'), and the question w^iether it has that effect has not yet been absolutely determined. But it is com- monly thought that the stoppage in transitu (t') does not rescind the contract, but merely rei)laces the vendor in the situation which he occupied before he parted -with the possession of the goods : and it was held by Lord Ellenborough, that where by the contract payment for the goods was to precede delivery, although the vendor had stopped thom in transitu, ho might (rt) Saltc V. Field, 5 T. K. I'll ; Har- tram v. FarcbrotluM-, 4 Vi'wv^. ."i7'J ; Atkin r. Banvick, 1 Str. 1G5, explained in Ilarnian v. Fishar, Cow-p. 125. (ft) Per Lord Stowcll, The Coii- stantia. Kob. A.R. 321. ((■) Per Lord Ellenborough, ISiffkcn V. Wray, 6 East, 370. (rf) Sec Went worth r. Outlnvaite, 10 M. & W. 43() ; and Gibson v. Car- M. VOL. II. riithers, 8 M. & \\ . ;!2I ; i)er Lord Abinger. (e) Sec per Lord Kcnj'on, Hodgson r. Loy, 7 T. 11. 440; per Park, J., Tucker c. Huniidirey, 4 Bing. 51G ; per Jx)rd Denman, Martiudale r. Smith, 1 Q. B. 389 ; 1 G. & D. 1 ; and sec Wcntworth v. Outhwaito, supra; Clay V. Ilannson, 10 B. & C. 09 ; Stephens r. Wilkinson, 2 B. & Ad. 320. 3 II 826 SALE AFTER RESCISSION OR STOPPAGE. after the time of credit had expired recover for them under a count for goods sold and delivered, if he were ready to deliver tliem on payment of the price ( /). 1493. Tlie vendor's title, either in the case of rescission or of stoppage, is paramount to and cannot be affected by the claim of a wharfinger, or other person who comes into the possession of the goods during the transit, for a lien upon them as against the vendee {g). 1494. After an express rescission of the contract there can be no doubt that the vendor may resell the goods ; and it seems that he may do so after such a constructive rescission as will arise by the neglect or refusal of the purchaser to pay for and remove the goods within a reasonable time after the vendor has requested him to do so (h) ; the resale in such a case would indicate the vendor's assent to the rescission. As to the vendor's right after stoppage, if the general opinion as to the effect of that act be correct, there can be no general right of resale until by subsequent circumstances the contract has been rescinded, except that where the goods are perish- able it is thought they may be resold by the vendor under an authority derived from the same equitable principles which created the right of stoppage (J.). It is presumed, however, that in such a case the sale would be allowed as a matter of necessity, and would not indicate a rescission of the contract. 1495. The first known cases in Avhich the right of stoppage in transitu was allowed in this country (A) arose in the Court of Chancery, where it was said that if the consignors of goods consigned to a person, who becomes bankrupt before they arrive, can by any means get them again into their hands, or prevent their coming into the hands of the bankrupt " it was but lawful for them so to do, and very allowable in equity" (/). (/) Kymcr v. Suwercropp, 1 Camp. (/r') As to the extent to which this 109. riglit is allowed in foreign maritime {g) Richardson v. Goss, 3 B. & P. states, see the judgment of LordAbin- 119; Oppenheim v. Russell, id. 42; ger, C. B., in Gibson v. Carruthers, 8 see Nichols r. Le P'euvre, 2 Bing. N. C. M. & W. 321. 81 ; 2 Car. & P. 4C9. {I) Wiseman v. Vandeput, 2 Vem. (A) See Langfort v. Tiler, Salk. 11 3. 203 (1690) ; Snee v. Prescott, 1 Atk. (i) Smith's Leading Cases, 1, 750, 245 ; Ex parte Wilkinson, cit. Ambl. ed. 6. 400. .JURISDICTION OF COURTS OF EQUITY. 827 The right was afterwards enforced by tlie courts of law as an equitable right (m), adopted for the purposes of substantial justice; it is now treated as a common law right (n), founded upon the law merchant, and has for many years been so ex- clusively enforced and developed by the courts of law, that it has been thought to be an arguable question, whether, not- wiithstanding its equitable nature and origin, the Court of Chancery had any jurisdiction over it [o); the doubt being supported by Some observations made by Lord Eldon, upon an ex parte application to restrain the sailing of a vessel, where goods of an unpaid vendor had been shipped with those of other persons (jo); but in which case the bill was not framed as the bill of an unpaid vendor to realize a lien, or to take accounts. The equitable nature of the right, the taking of the accounts, the intermediate possession, and the protection of the property, clearly bring the matter within the province of a Court of Equity (q). The appeal to a Court of Equity may also become necessary where the right of stoppage exists, but its actual exercise is prevented by the alienation of the legal right to the goods — as where the consignee has indorsed over the bill of lading by way of security (r). Here the indorsee has the legal posses- sion and property to the extent of his debt, but the original vendor's equitable right of stoppage remains subject to that claim, and his proper remedy against the surplus is in a Court of Equity: and may, it seems, be enforced, either directly or by way of marshalling (1361), through the vendor's right as a surety in respect of the surplus to compel the indorsee to resort to any other goods of the consignee which he may hold as security for the same debt (s). (/«) Per Park, J., Tucker v. IIiuii- 349. jihrey, 4 Bing. 51 G. (</) Scliotsnian r. Lancashii-e and («) See Oppenheini r. Russell, 3 B. Yorkshire Kaihvay Company ; and see & P. 42 ; Edwards v. Brewer, 2 M. & D'Aguila i;. Lambert, Ambl. 399, and W. 375. Ex parte AVilkinson, cited there. (o) See Schotsmaii r. Lancashire & (;•) SpaUiing ?'. Ruding, 6 Bear. Yorkshire Railway Company, L. R. 2 370. Ch. App. 332. (.s) In ro Westzinthus, r, B. & Ad. (p) Goodhart v. Lowe, 2 J. & W. 817. 3 112 828 EIGHT OF VENDOR AND CONSIGNOR 1496. The questions which arise as to the exercise of this right, relate — I. Tt) the character and position of the persons by and against whom it may be exercised. II. To the nature and situation of the property, against which it may be exercised. III. To the manner in Avhich it should be exercised. 1497. I. The persons must stand in the relation of vendor and vendee ; but for the purposes of stoppage in tran- situ, this relation is sufficiently constituted by those who deal together as consignor and consignee, where the former incurs any liability for the price of the goods (t), and though he be acting as the agent of the consignee in procuring the consignment {71). A liability for, or an interest in the price of the goods, apart from the character of consignor or vendor, will not confer the right ; it cannot be exercised by a mere surety for the price [x), for he has no ownership out of which the right can arise ; nor by the purchaser of bills drawn by the vendor for the price of the goods, unless he have an authority from the vendor (y). If a British merchant be licensed to send a ship to import a cargo from an enemy's country, the legalization of the trans- action implies a corresponding right in the enemy vendor, to the proper remedies for securing payment ; and therefore, to a right to stop the cargo on the insolvency of the pur- chaser, and to employ an agent in this country as may be necessary (z). 1498. The vendor or consignor must be unpaid; an actual or constructive payment of the whole price is inconsistent with the right. If, therefore («), the purchaser make an arrangement with his creditors, and the vendor include the purchase-money in the composition, the right will be barred. The right of stoppage is not affected by the giving of bills (0 D'Aguila i;. Lambert, Ainl)l. :','.)[), (//) Bird v. Brown, 4 Exch. 786. 2 Ed. 75 ; Feise v. Wray, ','> East, 'X',. (z) Fcnton v. Pearson, 1") East, 41'J. (w) Falk v. Fletcher, 18 C. B., N. S. (a) Nichols v. Hart, r> Car. & P. 403; 34L. J.,C. P. 140. ]79. {x) Siffkcn V. Wray, G East, 370. TO STOP GOODS IN TIIANSITU. K29 for the price, unless llic bills Avere accepted as payment ; or by part payment which only lessens the lien pro tanto, when the vendor has resumed possession: and it is not necessary for the vendor to tender back bills which the vendee has ac- cepted {h). If a bill for the price, which was not agreed to be taken at the vendor's risk, be dishonoured before the arrival of the goods, the vendor may treat the matter as if no kind of I)ayment had been made {<;) (1476). But in the analogous case of re-delivery by a pawnee of the pledge, upon the receipt of a cheque (which was dishonoured) when he might have had money, Avhereby he enabled the pawnor fraudulently to sell the property to another, it was held that the payment of the price to the pawnor was payment to the pawnee; and having stopped the delivery, he Avas held liable in trover to the purchaser {d). The vendor is not bound to wait, until it be clearly shown by the result of the accounts that the vendee is the debtor. The vendor seizes at his own peril, and it is for the vendee or the holder of the goods avIio disputes the claim to show the non-existence of the legal right (e), though it has been inti- mated that Avhere one consignment has been specifically sent in return for another, it may be necessary to Avait fur the settlement of accounts (/). A vendor Avho has been paid, but Avho afterAvards obtains possession of the goods fraudulently, for the purpose of assist- ing his immediate purchaser upon the insolvency of the sub- purchaser, Avill be lial)lc in trover for the goods {g). 1499. It is the insolvency or bankruptcy of the vendee or consignee, Avhich entitles the vendor to stop the goods (A). (&) Hodgson V. Loy, 7 T. K. 440 ; {c) Wood v. Jones, supra ; per Dr. Feisc r. Wray, 3 East, 93 ; Davis v. Lushington, Tlic Tigress, 1 Br. & L. Keynol.ls, 4 Camp. 2G7 ; 1 Stark. 115 ; 38 ; 32 L. J., Ad. 97 ; 9 Jur., N. S. Edwards i-. Brewer, 2 IM. & W. 375. 361. Tcr Paike, B., in Van Castccl v. (/) Wood v. Jones, sujira. Booker, 2 Exch. G91. See Cowasjec v. {g) Spear v. Travers, 4 Cami). 251. Thompson, 5 ^loo, V. C. 165. (A) LickbaiTow v. ilason, 2 T. \\. 63; (c) Wood V. Jones, 7 D. & R. 12G ; 6 East, 19, n. ; G id. 21 ; 4 Bro. P. C. see Piikfonl v. Maxwell, G T. R. 52. 57 ; Bloxam v. Sanders, 4 B. & C. {d) Zwingcr v. Samuda, 7 Taunt. 948. 264. 830 INSOLVENCY OF VENDEE ; EFFECT OF But it is not necessary that there should be an actual insolvency at the time of the stojipage. If the insolvency happen before the arrival of the goods, the stoppage will be justified and the shipper will have the benefit of his caution. But if from mis- information or excess of caution the consignor have exercised his privilege prematurely, and there is no insolvency to justify it, the consignee, it is said, will be entitled to the delivery of the goods Avith an indemnification for the expenses which may have been incurred on account of the stoppage {{). As the insolvency {k) of the vendee, by preventing him from performing his contract to pay for the goods, entitles the vendor to stop them, so if the vendee neglect to pay or to remit the proper bills for the price of the goods, where, by the contract, he ought to do so before they are delivered, the vendor may equally exercise his right (/). But if it be the business of the vendor to draw and send a bill to the vendee for his acceptance, and he neglect to send it, and enable the vendee to act as owner and to deliver part of the goods to a sub-purchaser, he cannot afterwards insist upon his lien against the residue (m). 1600. The right of stoppage in transitu being of an equitable nature ought not to be so exercised as to disturb the rights of third persons (n). The vendor's claim will, there- fore, be defeated if the vendee, being lawfully entitled, have made an absolute and bond Jide assignment (o) of the bill of lading for valuable consideration to a person who has no notice that the vendee is insolvent, or that the goods are not paid for ; and it is not material that the indorsee knew that the goods had only been paid for by acceptances payable at a day which ((■) Per Lord Stowell, The Constan- tia, G Rob. A. K. 321; per Dr. Lush- ington, The Tigress, 1 Br. & L. 38 ; 32 L. J., Ad. 97 ; 9 Jur., N. S. 3GL (7i}) As to the sense in which the word "insolvency" is used for this purpose, see Smith's Mercantile Law, 593, note, ed. 6. (l) Wilmshurst v. Bowkcr, 5 Bing. N. C.541 ; 7 Sc. 561. Reversed 7 M. & Gr. 882, but the reversal did not affect the general principle stated. (m) Green v. Haythonie, 1 Stark. 447. (/i) Per Be.st, J., 2 B. & C. 646. (o) Lickbarrow v. Mason, 2 T. R. 63; 5 id. 683 ; 6 East, 21, n. ; 4 Bro. P. C. 57 ; Gumey v. Behrcnd, 3 El. & Bl. 622 ; Pease v. Gloahec, L. R., 1 P. C. 219. ABSOLUTE ASSIGNMENT BY VKNDEK. 831 had not arrived at the time of the transfer (p). The criterion is whether tlie transferee have taken fairly and honestly, and he does nf)t take otherwise if the original consignee at the time of the transfer have done all that the contract re- quired concerning payment. But if the transferee have as- sisted in contravening the terms of the original sale or the rio-hts of the consigncn- connected with it, as if he knew of the insolvency of the consignee, and that no bill was accepted for the price of the goods, or that being accepted it Avas not likely to be paid, his transfer is an act of fraud against the right of the original consignor, and will not aflect it. 1 501. If it appear on the face of the bill of lading that the performance of some act, such as the payment of a certain draft— is to precede the delivery of the goods, the indorsee will take subject to the perfonnance of the condition (q), unless, it seems, by the custom of any particular trade, the performance of the act was not necessary before delivery, not- withstanding the expressed condition (r). 1502. If the transferee make himself paymaster to the original vendor, he takes subject to the same liabilities as the vendee, and the vendor's right remains (s). And as the transferee's right is founded upon the negli- gence of the vendor in parting Avith the evidence of the title to the goods, without payment of the price, so if, without negligence on his part, the bill of lading have been obtained by the fraudulent act of the consignee, as if the vendor hold- ing the receipt of the officer of the shij) Avho received the goods the master be persuaded by the consignee to give him a bill of lading Avithout the production of that receipt, the rio-ht of the transferee, notAvithstanding his OAvn innocence, will be against the shipowner or charterer only, and not against the original consignor (t). It Avill be remembered that every bill of lading in the hands of a consignee or indorsee for valuable consideration, representing goods to have been (^) Vcrtuc V. Jewell, i Ciuup. ol ; T. l.'07. Cuming r. Brown, 9 East, 506, and (,<) Salomons v. Nisscn, 2 T. K. 674. judgment of Lord EUcuborough there. (f) Schuster v. M'Kellar, 7 E. & B. (q) BaiTow v. Coles, 3 Camp. 92. 705. {}•) Barton v. Boddington, 1 Car. & 832 DEFEAT OF VENDOR'S RIGHT shipped on board a vessel, is now conclusive evidence of the shipment, as against the master or other person signing the same, although the goods may not have been so shipped ; unless the holder of the bill of hulin<>- when he receives it shall have had actual notice of the nonshipment ; the master being at liberty to exonerate himself from the misrepresenta- tion (ic). 1603. Although the property in the goods comprised in a bill of lading passed by the indorsement of the bill, the rights in respect of the contract formerly continued in the original shipper or owner (x). At present (?/), the consignee or in- dorsee, to whom the property shall pass by virtue of the con- signment or indorsement, has the same rights of suit, and is suljjcct to the same liabilities in respect of the goods, as if the contract contained in the bill of lading had been made Avith himself. As the object of this provision was to extend the rights of the indorsee, and as the bill of ladino; is a contract between the consignor and the master or owner of the ship, and is collateral to the right of stoppage which arises between the consignor and consignee, the indorsee of a bill of lading for valuable consideration and without notice of the con- signee's insolvency, does not by virtue of the statute become subject to the lial)ility of stoppage in transitu by the con- signor {z), independent of the subsequent (a) provision of the statute that the right or stoppage is not to be prejudiced or afiected by it; which last provision aj)pears to preserve the rule that as a bill of lading; does not like a bill of exchansfe pass by mere delivery to a bond fide transferee for value, Avithout regard to the transferor's title, the vendor may stop against such a transferee unless his transferor had not merely possession but also a right to transfer (i); notwithstanding the rule noAv under consideration (1500). But even the property in the goods will not pass to a trans- (?/) 18 & 10 Vict. c. n 1, s. 3, Bills {z) Kemp v. Canavan, 15 Ir. C. L. E. of Lading' Amendment Act. 216. (a;) Thomitson '/'. iJominy, 14 M. {a) Sect. 2. & W. 403 ; 18 & 19 Vict. c. ill, (J,) Gui-ncy v. Bchrend, 3 El. & Bl. Preamble. 622. (y) Id. .s. 1. BY ABSOLUTE ASSIGNMENT. 833 feree of tlie vendee so as to defeat the vendor's right of stoppage, by the delivery of a shi})ping note Avitli a delivery order ; and still less hy the delivery of an invoice (which is nothing more than a liill (•!' parcels) of the property (c). The claim of the sub-pnrchaser cannot of course prevail against the ri<«;ht of the original vendor where the latter has not parted with the control of the goods (r/). Nor will that right be displaced by the claim of the factor of the oi-iginal vendee, in possession of the indorsed bill of lading, and under acceptance to the original vendee, in respect of which he Avould have a lien on the proceeds of the sale of the goods if they came to his actual possession (e). Nor is the vendor's lien defeated by an attachment out of the Lord ^layor's Court (/') pending the transit, at the suit of a creditor of the consignee, the vendor's lien being the older and preferable claim. 1604. Upon the destruction by the vendee's absolute transfer for value, of the original vendor's right to stop the goods in transitu, he retains no right at law to the possession of them after the claim of the indorsee of the bill of lading has been satisfied {(/). If, however, the transfer by the vendee be not absolute, but only by Avay of secui'ity (A), the vendor's right of stoppage remains, subject to the security ; and will override a claim by the transferee to retain for a general balance due to hun from the vendee ; and the attempt of the (c) Akerman v. Iliimphcry, 1 Car. & only betoken an authority to receive P. 53 ; Tucker v. Hum])ln-cy, 4 Biiif^. possession, because they do not like 516. See, however, the observations of bills of lading represent property at sea. Lord Ellenborough in Hamian v. An- of which possession cannot be taken ; derson, 2 Camp. 243, and Lackington and, being of modem origin, are not V. Harrison, 8 Sc. N. R. 38. It is con- within the custom of merchants as to sidered by Mr. Justice Blackburn bills of lading. (Treatise on the Contract of Sale), that (rf) Craven r. Ryder, fi Taunt. 433. notwithstanding the cases of Spear v. (<>) Patten v. Thompson, 5 ^f. & S. Travers, 4 Camp. 251 ; Zwinger v. 350. Samuda, 7 Taunt. 2G5 ; Lucas v. Dor- (/) Smith v. Goss, I Camp. 282. rein, id. 278, and Keyser v. Suse, Gow, {g) In re Westzinthus, 5 B. & Ad. '^?; indorsements of dock warrants, 817. whurtinger's rcccii>ts, delivery orders, (//) Id. Spalding i\ Ruding, 6 Beav. and such documents have no effect in- 376. dependently of the Factors Acts, but 834 NATURE AND SITUATION OF PROPERTY. original vendor to stop the goods will be construed as a re- sumption of his right, subject to the pledge or mortgage of the transferee. An indorsement and delivery of the bill of lading l)y way of pledge will not hoAvever divest the right of the consignor, where the pledgor is only an agent Avithout power to bind his principal by the pledge (i). 1605. II. As to the nature and situation of the property against Avliich the right of stoppage in transitu may be ex- ercised. It may not only be applied to goods the property of which is in the vendor, but also where he has only an interest in and a right to receive under a contract, a portion of certain goods which is afterwards to be ascertained and appropriated to the i:)ersons entitled (k). It cannot be exercised by a debtor upon goods which he has consigned to his creditor, on account of, or as security for, a debt due to the latter, because from the time of the con- signment the property is appropriated ; and the arrangement cannot be rescinded like a mere direction to an agent to pay a sum of money (/). 1 506. As to the situation of the goods. It is of the very essence of the doctrine of stoppage in transitu that during the transitus the goods should be in the custody of some per- son intermediate between the seller who has parted with and the buyer who has not yet acquired actual possession (m). In order to ascertain the existence of this condition it will be necessary to consider — 1. The circumstances under which the goods are despatched by the vendor. 2. The nature of the possession of the person who receives them. 3. The acts which amount to delivery to the vendee, or to a taking possession by him of the goods. (i) Newsom ?J. Thornton, 6 East, 17. Fisher v. Miller, 1 Bing. 150. See The case of a factor before the Factors Smith r. Bowles, 2 Esp. 578, which Acts. seems contra. {k) Jenkyns v. Usbome, 8 Sc. N. R. (m) Per Rolfc, B., in Gibson v. Car- 522. ruthers, 8 M. & W. 321. (I) Vertue v. Jewell, 4 Camp. 31 EFFECT OF DELIVERY TO CARRIER. 835 1 507. (1.) As a general rule, where goods are ordered by a purchaser to be sent to him by a carrier, although no carrier in particular be named, the delivery to the carrier by the vendor operates as a delivery to the purchaser (w) ; and if goods be shipped in a vessel belonging to the consignee, whether it be sent for the purpose of receiving the goods, or be a general ship (o), and the goods are there placed in the care of the consignee's agent, and are made deliverable to the consignee or his assigns, the transit is at an end ; and such a delivery will not be qualified, by the indorsement to a third person, of a bill of lading which has been fraudulently ob- tained in blank from the master of the ship (/>). 1508. But if the vendor honestly reserve a jus disponendi by taking a bill of lading which makes the goods deliverable to him or his assigns, the property will not vest in the con- signee (</) until the bill of lading is delivered to him ; and the consignor's right of stoppage remains, even though the master, by signing a bill of lading in such a form, have exceeded his authority (r). If the operative words in the bill of lading make the goods deliverable to the consignoi-'s orders, his right will prevail, although it be stated in the invoice that the goods are shipped on account of the consignees and consigned to them ; and in the bill of lading itself, that the goods belong to the owners of the ship. The taking a receipt from the oflScer of the ship in the name of the consignor, followed by a demand of a bill of lading, making the goods deliverable to himself or order, has also been considered, although the bill was refused, to show that the consignor did not intend to part with the property {s). («) Per Lord Alvanlcy, Button r. (q) "Wait r. Baker, 2 Exch. 1; Bcrndt- Solomonson, 3 B. & P. 582. son v. Stranjr, L. R., 4 Eq. 481. ((0 Per Parke, B., Van Casteel v. (r) Van Casteel v. Booker, 2 Exch. Booker, 2 Exch. 691 ; Ogle v. Atkin- 691 ; Turner v. Trustees of Liverpool son, 5 Taunt. 759 ; In re Iluniherston, Docks, 6 Exch. 543 ; Ellershaw r. De G. 262 ; Schotsman r. Lancashire ilagniac, id. 570. and Yorkshire Railway Company, L. R. (s) Falk r. Fletcher, 18 C. B., N. S. 2 Ch. App. 332. ' 403 ; 34 L. J., C. P. 146. (/;) Ogle I'. Atkinson, supra. 836 WHEN DELIVERY TO CARRIER But the takiiicr of such a bill of ladins; is not conclusive as to the vendor's intention. Such circumstances as the making of the bill of lading " freight free," the language of the in- voice (although that instrument will not pass any property), and the immediate indorsement or transfer of the bill of lading: to the consignee, may indicate, and will afford evidence for a jury, that the contract was really made on behalf of the con- signee ; and that the goods were really delivered to be carried on his account, and at his risk (t). 1609. Where the ship does not belong to, but is chartered by the vendee, the fact that he is the charterer does not alone deprive the consignor of his right to stop the goods, more than if they were delivered on board a general ship for the same purpose (u). 1510. The vendor does not lose his right of stoppage if by arrangement with the vendee the bill of lading which had been sent to the latter, but which made the goods deliverable to the order of the consignor or his assigns, has been placed in the hands of a third person to secure the bills drawn on account of the purchase; if it appear from the facts that there was no constructive delivery (x). 1511. (2.) As to the possession of the carrier, or other in- termediate holder of the goods. It is to be noted, that the transit is not complete by the mere delivery of the goods at the place of destination; the delivery must be into the actual or constructive possession of the consignee (?/) ; and even though they be placed upon his oAvu premises, if it be done against his consent, or without his concurrence, it is no delivery (z), nnless he have assented to their remaining before the vendor has applied to stop them. And if the buyer repudiate the goods, there will clearly be no (t) Van Castccl v. Booker, supra ; (,/•) Van Castecl v. Booker, 2 Exch. Brown v. Hare, 3 H. & N. 484 ; 4 id. C91 ; and see Turner v. Trustees of 822. Liverpool Docks, G Exch. 543. («.) Bolitlingkr. Inglis,3East, 380; (y) Per Tindal, C. J., Jackson v. and see Whitehead r, Anderson, 9 M. Nichol, 5 Bing., N. C. 508. & W. 518 ; Moakes v. Nicholson, 19 (z) Heinekey v. Earle, 8 El. & Bl. C. B., N. S. 290. 410, 427. IS DELIVERY TO PLUCIIASEli. 837 delivery, altliougli other goods included in the same contract Avere previously delivered and accepted (a). 1512. A conditional delivery will also be incomplete unless the condition be performed. If the goods be deposited with the vendee's agent, upon the understanding that there shall be no delivery until payment, the vendor may resume posses- sion (i) in case of non-payment. So if they be packed in coverings belonging to the vendee and then left upon a like condition with the vendor (c). 1513. Further: so long as any act remains to be done for the l)urpose of separating and ascertaining the exact goods which are to be the subject of the contract, or of ascertaining their weight or quantity, in order to fix the price, the vendor may assert his right (fZ), although an order to weigh and deliver have been given by the vendor, and have been entered and the goods transferred in the books of the wharfinger or other holder of the goods; and although the vendee have resold, and the orifinal vendor have had notice of, and have acquiesced in the resale. It is the same where the sale includes all the goods in a warehouse, if the price depend upon the quantity, and the quantity be not ascertained (e); or where the price is fixed if the quantity be not made up(/). Before the goods which form the subject of the original contract are ascertained and separated, the sub-purchaser cannot be in a better position than the original vendee {(/). 1514. Subject to these conditions, the constructive delivery is complete when the goods have been left at the place or with the person at which or to whom they are directed to be sent by the consignee, although for the purposes of the latter that may not be the ultimate destination of the goods. Therefore, {(i) Bolton r. Lancasliirc and York- id. 617 ; Busk v. Davis, 2 M. & S. shire Kaihvay Company, 33 L. J., C. P. 397 ; notwithstanding "Whitchouse r. i;]7. Frost, 12 East, (514. (ft) Loeschman r. Williams, 4 Camp. (<>) Withers v. Lyss, 4 Camp. 237. 181. (/) Wallace v. Breeds, 13 East, (f) Goodnll r. Skeltoii, 2 11. 111. ^22. 316. iff) Sec Moakcs v. Nicholson, IH (^7) Austen /•. Cniviii, l Taunt. C. B., N. S. 20t). C-t-i ; 5 id. 17 J ; Shcpley c. Davis, 5 838 INTEEMEDIATE PLACE OF DELIVERY. Avhere the purchaser directed the goods to be sent to a packer, who, upon receiving them unpacked and sent away part and repacked and retained the remainder, the latter were held to be no longer in transitu, although it was intended ultimately to send them elsewhere {h). So if, without any special direction or ulterior place of des- tination in view, the goods have been delivered at the w^are- house of a wharfinger, packer, or other person, and which is the usual place for the delivery of goods consigned to the vendee, or even at the waggon office of the carrier (z). And where an ulterior place of delivery is mentioned in the original direction, if that delivery is to be the work of the specially ap- pointed or accustomed agent of the vendee, the transit as regards the original vendor is complete. As if the goods be ordered to be sent to C. at X., for transmission to Y. Upon delivering to C. at X., the goods, until new orders be given by the purchaser to send them to their final destination, remain stationary in the hands of his agent; and the transit being complete, cannot commence de novo (A). So if the order be to deliver at the port of C, for the pur- chaser at M., and at C. the goods are deposited with Y., who is unconnected with the carriers, and accustomed to receive goods for the consignee at his risk, but without charging warehouse rent; although this last circumstance may sometimes be material (1487, 1521), it is not conclusive against the consignee: and as the warehouseman was not the agent of the carrier, the transit was held to have been determined (/). 1516. The transit may be ended by the deposit of the goods in the carrier's warehouse, although they have been (h) I^cds V. Wright, 3 B. & V. 320 ; 2 Esp. 243. (I) Richardson v. Goss, 3 B. & P. 127 ; Scott V. Pettit, id. 4G9 ; Rowe V. Pickford, 8 Taunt. 83 ; Smith v. Hudson, 11 Jur., N. S. 622; see Nicholson v. Bower, 1 E. & E. 172 ; Noble ?'. Adams, 7 Taunt. .'iO. (k) Dixon V. Baldwcn, 5 East, 174 ; Wentworth v. Outhwaite, 10 M. & W. 436 ; Coates v. Railton, 6 B. & C. 422, a]ipcars to disagree with Dixon v. Bald- wen, and the vendee's agent had also had work done upon the chattels ; as to which see Cooper v. Bill, 3 H. & C. 722. It also seems to disagree with Smith V. Goss, 1 Camp. 282. (I) Dodson V. Wentworth, 4 M. & G. 1080 ; see Hunter v. Beal, cited 3 T. R. 444, but not approved by Lord Ellenborough in Dixon v. Baldwen. CONSIGNEE MAY CHANGE PLACE OF DELIVERY, 839 ordered to be delivered to him at a particular place, where the carrier has allowed thcni to remain for the vendee's conve- nience until he should give further directions for their dis- posal (m) ; and this, whether the vendee have exercised acts of ownership on the goods in the carrier's warehouse («), or Avhether, in pursuance of a course of business between the car- rier and the vendee, they have been left until they can be re- moved for shipping by the vendee's own agent (o) : and although the carrier himself claim a lien upon the goods (p). The ques- tion for a jury in such cases is, whether the goods were re- ceived by the holder as the agent of the consignee, to take possession of them for his benefit as owner, or as agents only to forward them to him; or to keep them for the vendor (q). 1516. (3.) As to the acts which amount to delivery by the holder, or to taking possession by the consignee of the goods. The direction of the consignor to deliver the goods to the consignee at a certain place, does not imply a contract by the carrier with the consignor to deliver them at that place only. The consignee may receive them at any stage of the transit, and may change the place of delivery; and if he so receive them, the transit Avill be determined (?•) for the purposes of the right of stoppage, as if they had been sent to their original destination. The transit will be complete even if the goods be delivered wrongfully, as upon the production of an unin- dorsed bill of lading {s) ; or if the consignee, before they arrive, take them from the custody of the carrier without his consent, although he may be responsible for the wrong done to the carrier {t). (in) Foster r. Frampton, 6 B. & C. (s) Coxe v. Harden, 4 East, 211. 107 ; Allan r. Grippcr, 2 Cr. & J. (0 Whitehead v. Anderson, 9 M. & 218. W. 518. It was formerly held that the («,) Foster v. Franipton, supra. consignee could not take possession {o) Scott V. Pottit, 3 B. & P. 469. until the completion of the transit ; and (/>) Allan c. Gripper, sujira. tlierefore where after the assiunees of the ((/) James r. Griffin, 1 M. & W. 20. bankrupt consignee had taken posscs- (?■) London and North Western sion of a cargo the ship was ordered Railway Company r. Bartlett, 7 H. & out for quarantine, the transit was held N. 400 ; per Lord Alvanley, Mills r. to continue until the completion of the Ball, 2 B. & P. 4o7. iiuarantine. Hoist r. Pownal, 1 E^k 840 EFFECT OF PARTIAL DELIVERY. 1517. The actual delivery of part of the goods may import a constructive delivery of the whole, where the part delivery was made to a sub-purchaser of the whole, and there appeared to be no intention either before or at the time of the delivery to separate that part from the rest (m). But the question depends upon the intention of the vendee in taking posses- sion (1486). If it appear that he intended to take possession only of part, for the purpose of delivery to a purchaser of that part, the right of lien and stoppage vipon the residue will remain. Therefore, where the vendor ordered the holder of the goods to weigh and deliver to the vendee, and the goods were weighed and invoices sent to the vendee, but no transfer into his name Avas made in the books of the holder, nor any warehouse rent paid by the vendee, a sale by him of part of the goods, and delivery of that part upon his order to the sub-purchaser, was held not to determine the vendor's right ao;ainst the residue {x). 1518. The vendor's right of stoppage may be preserved through the imperfection of the delivery, although that arises from a matter entirely collateral to his right; viz. the right of the carrier to refuse to complete the delivery until payment of the freight (y). So Avhere goods were landed at a wharf not in the name of any consignee, but the entry in the wharfinger's book was "with freight and charges;" which, accordino; to the evidence, showed that the wharfinger was to 240. It may be doubted whether, even if it were still necessary to complete the voyage before the consignee could take possession, the transit would now be held to commence de novo after the first arrival of the ship, in conseciucnce of an order to go into quarantine, which is entirely unconnected with the jiur- poses of the voyage. (?/) Slubey v. Heyward, 2 II. Bl. 504. Qp) Sec X'cr Parke, B., Jones t\ Jones, 8 M. & W. 4;:!1 ; Tanner r. Scovell, 14 M. & W. 28 ; Bolton v. Lancashire and Yorkshire Railway Company, 35 L. J., C. P. l;}7. (//) Crawshaw v. Eades, 1 B. & C. 181. When the master of a ship is to deliver the cargo alongside at the risk and expense of the consignee, and a receijit to be granted on board, as he Ifjses his lien upon delivery and receipt, lie may refuse to deliver except on daily ]iayment of freight for the amount of cargo delivered. Black v. Rose, 2 Mo. P.C. (N. S.)277. ACTS WURII CONSTITUTE POSSESSION. 841 receive freight and charges for the master before delivering the goods, they were held to be still in transitu (z). 1619. It was once laid down that the "corporal touch" of the consignee or his agent was necessary to vest the property in the former. It has long been understood that this require- ment, if indeed tlie expression was ever more than figurative, will be satisfied by the exercise of any act of ownership ; but Avhat act is suflficient for that purpose, it is often difficult to determine. 1520. The weighing and part removal by the purchaser, of goods Avhich have been deposited in a warehouse, are acts Avhich indicate that the possession is vested in him (a). So may the taking of samples, coupled with other circumstances which show an intention to assume the ownership ; for the mere taking of samples alone is an equivocal act, the object of which may be only to ascertain if the goods can be disposed of at the particular i)lace, without any intention to take actual posses- sion. The taking of samples Avill show an intent to take pos- session of the bulk of the goods, if the purpose of the transfer require that the transferee should have fuU possession of them; as if he be a trustee for creditors, among whom it is his duty to distribute the proceeds (Z»). 1521. The payment of Avarehouse rent by the vendee to the intermediate holder of the goods (c), or even notice from the latter requiring such rent, though none be paid, shows the possession to be in the vendee ; it being, as regards the holder of the goods, evidence of a new agreement by him to hold them for custody on account of the vendee, and not for the ])urpose of sending them to their destination {d) (1487). And although payment of rent by the vendor for the ware- housing of the goods tends prima facie to show that he has not parted with the possession of them, circumstances may rebut (-) Edwards v. Brewer, 2 M. & W. (c) Wentworth v. Outhwaite, 10 M. 375. & W. 436. (a) Hammond c. Anderson, 1 B. & (d) See "Wright r. Lawes, 4 Esp. 82 ; P. N. R. 69 ; AVright v. Lawes, 4 Esp. Bolton v. Lancashire and Yorkshire 82. Railway Company, 35 L. J., C. P. 137; (J) Jones V. Jones, 8 "M. & \V. 431. per Erie and Willes, J J. M. VOL. II. 3 I 842 ACTS Aviiicn constitute possession. this presumption, as if it be shown that the vendor paid the rent according to a custom of the trade, during a certain time (which Avas still current) after the day of sale (/). 1 522. It has been held that if the consignee or his assignee put his mark upon the goods at the place of deposit, it is suffi- cient to pass the possession {g). And if the vendor assent to a sale by the vendee, and allow the property to be marked by the sub-vendee, it has been considered to be such a recognition of the transfer as to displace the original vendor's right of stoppage (A). But more recently it has been said to be doubtful {i), whether the acts of marking, taking samples, or the like, without removing the goods from the possession of the holder, although the act be done with an intent to take possession, will amount to a constructive possession, unless accompanied by such circumstances as to denote that the holder was in- tended to keep the goods as agent for the custody of them, on the consignee's account. It seems, therefore, that the acts in question are hardly to be taken even as prima facie evidence of the vendee's possession ; a doctrine which certainly will not simplify the settlement of rights of this nature. 1623. The holder of the goods cannot prolong the transit by wrongfully detaining and delivering the goods to other persons after they have been demanded by the consignee or his assignees in bankruptcy (A). The holder is justified in delivering them to the possessor of the first bill of lading which is presented, and is not bound to inquire into the comparative merits of claimants under different bills of lading (Z). 1524. HI. As to the exercise of the right of stoppage in transitu. It entitles the vendor not only to countermand the de- livery of the goods to the vendee, but to order re-delivery to (/) Hammond v. Anderson, 1 B. & M. & W. 518. P. N. R. fi9. {k) Bird v. Bro^vn, 4 Exch. 786. {g) Ellis V. Ilimt, 3 T. II. 4G4. (0 See Fearon v. Bowes, 1 H. Bl. (Ji) Stoveld V. Hughes, 14 East, 308. V.CA, note. Per Dr. Lushington in The (J) See Whitehead v. Anderson, !» Tigress, Br. & L. 38. STorPAnr, hy ^•Exnou's agent. • 843 the vendor himself (/«) : and it revests in him sucli of the goods as were in transitu at the time of the stoppage, but witliout affecting the vendee's right to such as have actually been de- livered {71). 1626. The validity of the stoppage does not, however, depend upon actual possession of the goods by the vendor (0). It may be effected by a mere notice to the person in actual possession of the goods ; or, Avhere he is an agent, by notice to his principal, provided the notice be given at such a time and under such circumstances that the principal, by reasonable diligence (which is all that he is bound to use)> may communi- cate with his servant in time to prevent the delivery to the vendee {p). The procuring the master of a ship to sign bills of lading to the vendor's order has been held to be a substan- tial compliance with the law of a foreign country, under which the unpaid vendor was entitled to recover possession of the goods by a judicial process (</). 1526. The goods may be stopped by the agent of the con- signor, whose general authority to act for the consignor in such matters will, it seems, be sufficient (r). But as the mere indorsement of a bill of lading formerly passed only the pro- perty in the goods to the indorsee, leaving all rights in respect of the contract in the original shipper or owner of the goods {s), the indorsement without value, or otherwise than in pursuance of a contract to pass an interest in the goods, would not enable an indorsee to sue for them in his own name (t). The con- signee of goods, or the indorsee of a hill of lading to whom the property in the goods shall pass by reason of the indorsement or consignment, has now all rights of suit and is subject to the same liabilities as if the contract contained in the bill of lading had been nuidc with himself. But as the statute («) only (///) IVr Dr. Lushin>,'t<.ii, Tlie Ti- (</) Iiiglis r. Underwood, 1 East, gress, Br. & L. 38 ; 9 Jur., N. S. 3G1; 51-4. 32 L. J., Ad. 97. {>•) Sec Whitehead i-. Anderson, 9 («.) Weutworth v. Outhwaite, 10 ^^I. M. & W. 518. & W. 430. («) 1^ & 19 Vict. c. Ill, preamble. (()) Northey r. Lewis, 2 Esj.. r.l3. (f) Waring v. Cox, 1 Camp. 3tii); see (j>) Litt V. Cowley, 7 Tannt. ICl) ; Coxe v. Harden, 4 East, I'll. Whitehead v. Anderson, 9 M. & W. («) 18 & 19 Viet. c. Ill, ss. l.'J. 518. 3 1 2 844 tendor's authority to agent. affects indorsees, to -svliora the property in the goods passes by the indorsement, and does not prejudice or affect any right of stoppage in transitu, it seems that neither the mere agent, upon whom only an authority Avithout any property is con- ferred, nor an indorsee to whom only the property without any rights under the contract would have passed by the indorse- ment before the act, wuU be more able to sue than he would have been before the act, in respect of rights accruing under a stoppage in transitu. 1527. Although an authority by the consignor to his agent to stop, be executed while the goods are in transitu, a stop- page made under that authority will not be valid unless it be executed during the transit ; and a ratification by the agent, after the completion of the transit, of a stoppage made by an unauthorized person during the transit, will be of no avail {x). The act of ratification must take place at a time, and under circumstances, when the ratifying party might himself have lawfully done the act which he ratifies. A stoppage by a person who assumes to act as agent for the vendor may, however, be justified by an authority sent before the arrival of the goods, but which was not received till after the seizure; and although the terms of the authority were to rescind the contract ; if it be clear that the intention was to authorize the stoppage (//). 1 528, The carrier, Avharfinger, or other person who comes into the possession of the goods as a middleman between the consignor and consignee, becomes liable in trover, if after proper notice from a consignor entitled to stop in transitu, he deliver the goods by mistake or otherwise to the consignee ; because by the notice the property is revested in the con- sio-nor (z). The consignor is not bound to prove his title ; it is sufficient if he assert his claim as vendor and owner ; and the middleman is then bound to deliver the goods to him, un- less he is aware of some legal defeasance of the right. The (x) Bird r. BrowTi, 4 Exch. 78G. lOD. {y) Hutchings, app., Nunes, resp., (z) Litt v. Cowley, 7 Taunt. 169. 1 Mo. P. C, N. S. 243 ; 10 Jur., N. S. vendor's right to refuse delivery. 845 refusal to deliver is otherwise evidence of a conversion, and is a breach of duty (a) within the Admiralty Court Jurisdic- tion Act, 1861, by reason of which the ship will become liable under the jurisdiction of that court (b). And a fortiori if the holder of the goods have admitted the right of either of the claimants to possession, he cannot afterwards dispute the right of that person in an action for a wrongful delivery ; either upon the ground of any usage of trade, or of the vendor's right of stoppage, or that the holder was bound to deliver according to the original order (c) ; and it is said to be imma- terial as against the holder whether his admission of title were oral or written (rf). 1 529. If the goods be in the possession of the CrowTi until the payment of duties, a claim made after the sale of the goods will bind the surplus proceeds of the sale (<?)• 1630. If the vendor have heard of the insolvency of the purchaser before the delivery of the goods to a middleman, the question will arise whether the vendor may refuse to de- liver the goods. It was laid down by Bayley, J. (/), that if (as the law is) the vendor by virtue of his original ownership, and by reason of the defeasible nature of the vendee's right of possession, may stop the goods after they have been despatched, a fortiori he may detain them when he has not parted with the posses- sion. It was also considered by Lord Abinger, C. B. (g), that this right followed from the vendor's right to stop in transitu. He observed that it could not be that the vendor must start the goods upon their transit that he might have a right to bring them back ; that the reason of the right to stop is that the vendor is not bound to deliver ; and that the right to stop proves a fortiori a right to refuse to part with posses- (a) Per Dr. Lushington, The Tigress, 1 Cr. & J. 519. Br. & L. 38 ; 9 Jur., N. S. 361 ; 32 (ff) Gosling v. Bimie, supra ; per L. J., Ad. 97. Bosanquct, J. {b) 24 Vict. c. 10, s. 6. (e) Northcy v. Lewis, 2 Esp. 613. (r) Gosling i'. Bimie, 7 Bing. 339 ; (/) In Bloxam v. Sanders, i B. & C. Stonard i-. Dunkin, 2 Camp. 344 ; Hawes 948. V. Watson, 2 B. & C. 540 ; Mills v. {g) Gibson v. Carruthers, S M. & Ball, 2 B. & P. 457 ; Hawkes r. Dunn, W. 321. 846 vendor's rigut to refuse delivery, sion. It was however held by the majority of the court In a case (h), in which the agreement Avas that the purchaser should send a vessel for the goods,— which he did, but afterwards and before they were shipped, became bankrupt, — that the vendor could not refuse to load the ship, and that he broke his con- tract by so refusing ; because the assignees of the bankrupt had a right of election whether they would perform the con- tract, but the vendor had none, and the assignees were not bound by the contract to pay the price until the arrival of the cargo and the delivery of the bill of lading, a period which had not arrived. The correctness of this reasoning may be doubted. It is the vendee, who by his insolvency has been the first to break the contract; and as upon his insolvency the vendor may stop in transitu, because the vendee can no longer perform the contract by paying the price, he ought by the same rule to be entitled to refuse to deliver the goods. If the assignees be entitled to have the contract carried out while the goods are still at home, they are equally so when the goods are in transitu. But so far as regards the time of payment the contract is varied by the insolvency ; the right of the assignees in this respect is no longer to receive the goods upon payment at the tune fixed by the contract, for otherwise the vendor must again give up the goods, and the stoppage would be inef- fectual. How can a different principle be applied where he has not sent the goods at all ? It was however intimated that the same circumstances which would justify a vendor in stopping the goods in transitu will also Avarrant him in detaining them before the transit has commenced, where it only remains to deliver them to the purchaser. Of the Loss of the Benefit of the Security hy Negligence and Fraud. 1531. Both in legal and equitable mortgages the posses- sion of the title deeds is of great importance as regards pri- {li) Gibson V. Carruthers, 8 M. & W. 321. mortgagee's neglect to obtain deeds. 847 oiity; and may alone be a sufficient test of riglit, where by simultaneous mortgaj^es the legal estate passes to several mort- gagees (A), or where the equities between the incumbrancers are equal. A legal or equitable mortgagee may lose his priority, if he fail to obtain or inquire for (i), or, if having obtained, he give up without good reason, the possession of the title deeds ; because by the mortgagor's possession of the deeds, which are the evidences of title to the land, the subsequent lender is led to believe, that the estate to which they belong is free from charge ; although at law the rightful owner of the land may recover the deeds in trover from a person who has lent money on them without notice of a want of title in the depositor, notwithstanding negligence on the part of the o>vner, provided it do not amount to fraud (A). It appears to have been foraierly thought by common law judges (Z), that the fact that the mortgagor had been able by possession of the deeds to eflfcct another security, was alone sufficient in courts of equity to postpone a prior mortgagee ; but in a case (m) decided in equity before this doctrine w^as set up, and in which the first mortgagee had trusted to the word of the mortgao-or, who said that the deeds were in the country, but should be given him, the first mortgagee did not lose liis priority ; though, because he had been negligent, the court would not deprive the other of the deeds. And, at the pre- sent day, direct fraud, or gross and wilful neglect, amounting to evidence of fraud, must be proved agamst a mortgagee, by him who seeks to disturb his priority (?«). 1532. AVhere the mortgagee has not obtained the deeds, (h) Hopgood r. Ernest, 13 W. R. Jar. 1097 ; Bailey r. Fermor, 9 Ti-iec, 1004. 2G2. Such a fraiul is said by Lord ( i) Rice r. Rice, 2 Drew. 73 ; Layard Campbell to have been committed by V. Maud, L. R., 4 Eq. 3ii7. Robkut Wright, aftenvards Chief (i) Harrington v. Price, 3 B. & Ad. Justice of Enghxnd, who mortgaged 170. his estate to Mr. (aftenvards Lord (0 Burnet, J., in Ryal i: RoUe, 1 Keeper) North for its full value, and Atk. 1G5 -, BuUcr, J., in Goodtitle v. by means of the title deeds which were Morgan, 1 T. R. 755, 762. left in his possession effected another (»0 Head V. Egertnn, 3 P. Wms. mortgage, making oath that the estate 2t;o. was unincumbered ; and so to fiaud (n) Evans v. Bicknell, 6 Ves. 173; added perjury. Hewitt i: Loosemore, 9 Hare, 449 ; 15 848 mortgagee's neglect to inquire for deeds. if it be also shoAvn that he has not inquired for them (o), or at all investigated the title ( p), it Avill be inferred, that he neg- lected to do so, lest he should get notice of a defect in his title (1103) ; from which it will follow, that the very know- ledge Avhich he has attempted to ignore, will be imputed to him ; and the inference thus arising will be strengthened, if the mortgagee be aware that persons in the situation of the mortgagor are accustomed to raise money on deposit of their title deeds. In the case of a mortgage of copyholds (q), the surrenderee not having inquired for the deeds which were in deposit, was postponed, though he had ascertained that there were no incumbrances entered on the rolls. But priority will not be forfeited by the neglect of the mortgagee, or his soli- citor, to obtain or inquire for an instrument recited in a deed of remote date which forms the root of the title, if there were no wilful neglect on the mortgagee's part, though his solicitor, being also the agent of the mortgagor, knew that by means of such instrument the mortgagor could raise money (r). Less doubt Avill of course be felt, where the parties have been guilty of positive fraud (s), — as by antedating the legal mortgage that it might not appear to be made on the eve of the mortgagor's bankruptcy ; and falsely reciting, that it re- lated to a present advance ; and if the subsequent mortgagee, knowing of the prior deposit of the deeds, made no inquiry as to the object of that deposit. 1 533. But if the mortgagee have not neglected to inquire for the deeds, but have failed to obtain them through the de- ceit or neglect of the mortgagor, — as if the latter assure him that he has delivered him all the deeds {t), or that he will shortly do so(u), making a reasonable excuse for not doing it (o) Hewitt V. Loosemorc, supra ; sec {t) renner v. Jemmett, 2 Bro. C. C, Wiseman v. Westland, 1 Y. & J. 117. Go2, n. ; 1 Fonbl. Eq. 166, n. ; Roberts (p) Worthington v. Morgan, 16 v. Croft, 2 De G. & J. 1 ; 3 Jur., N. S. Sim. 547. 1069 ; 24 Beav. 223 ; Hunt v. Elmes, (q) Whitbread v. Jordan, 1 Y. & C. 28 Beav. 631 ; 7 Jur., N. S. 200 ; 2 303. DeG.,r. & J. 578. (r) Finch v. Shaw, Colyer v. Finch, (u) Hewitt v. Loosemorc, 9 Hare, 18 Jur. 935; 19 Beav. 500; 3 Jur., 449; Espin i5. Pemberton,4 Drew.333; N. S. 25 ; 5 H. L. C. 928. 3 De G. & J. 547 ; 5 Jur., N. S. 55, («) Birch V. Ellames, 2 Anst. 427. 157. MORTGAGEE EXCUSED FOR NOT OBTAIXING DEEDS. 849 at the moment, it has been determined that the mortgagee, whether his security be legal or equitable, and even though the relation of solicitor and client subsisted between him and the borrower, will not be postponed to a person, who, by reason of the mortgagor's possession of the deeds, has been induced to purchase or lend money on the security of the property. So if upon making proper inquiry respecting a deed, of the existence of which he has notice, a reasonable excuse is made for its non-production, and the mortgagee is assured and believes, that it does not affect the estate in which he is interested {x). In some cases, also, the mortgagor himself may be either not entitled to the sole possession of the deeds, or may be bound to retain them in his own custody. The first is the case of tenants in common and joint tenants, the other may be in cases where the estate is in trust, — as where, although the deeds were in the hands of a cestui que trust, the estate was vested in the trustees, and was subject to a terai for securing a jointure and portions (y), or the case may be such that the possession of the deeds is not legally incident to the estate of the mortgagee, as where he is rever- sioner and the deeds are held by the tenant for life(-r), or where («) the security was made by trustees in part execution of a trust to raise a larger sum, and for other purposes, for which possession of the deeds was absolutely necessary; so that without a breach of trust they could not have parted (x) Jones 1^. Smith, 1 Ph. 244. The gagor had nothing which in equity ho same has been held (Frazer r. Jones, 5 coiUd transfer to the subsequent de- Hare, 481, and 17 L. J. Ch., N. S. 353) positee. It was also (on appeal) partly where no inquiry had been made ; but decided on the gi-ound of fraud in the in that case, there having been a false latter ]ierson. On the first point, sec recital in the mortgage of a prior also Adams r. Ciaxton, G Ves. 22(5. equitable charge, by deposit of a deed, (y) 1 Fonbl. Eq. 166, n. ; per Lord none such having ever been made, the Eldon, G Ves. 190; Farrow v. Rees, 4 decision went on the ground, that sub- Bcav. 18. Sec Carter c. Carter, 3 K. & jcct to the alleged charge if it had J. 647 ; 4 Jur., N. S. 63. See Cottam existed, and in fact as it did not exist, v. Eastern Counties Railway Company, the whole of the mortgagor's interest 6 Jur.,N. S. 1367. in the equity of redemption (which was (r) Tourle r. Rand, 2 Bro. C. C. the subject of the security) was vested 649. in the present mortgagee; and the mort- (a) Harper ;•. Faulder, 4 Mad. 129. 850 EFFECT OF FRAUD OR GROSS NEGLIGENCE. Avith tlieni. lu nouc of tliese cases can the legal mortgagee be blamed for not obtaining possession of the deeds. 1534. But even if the deeds are forthcoming to the legal mortgagee through the delay of the persons rightfully entitled to take possession of them, those persons Avill not it seems be postponed to the mortgagee, if he, by inquiry, could have ascertained that they were in wrong hands. Therefore where assignees omitted for a long period to take possession of their insolvents' copyhold, and caused no entry of the assignment or copy of the appointment of the assignee to be entered on the rolls, but out of compassion left the insolvent in possession of the property, and of the copies of court roll, and he made a conditional surrender ; the assignees were not postponed (b) ; on the ground, that the mortgagee might have searched the list of insolvent debtors, and that the statutes directing the entries on the rolls were directory only. By this case the doctrine in favour of the prior incumbrances was perhaps car- ried to its full extent against a person, who, after a period of nineteen years from an insolvency, found the insolvent in full possession and the apparent owner of the estate. And it may even be doubted, if the compassion of the assignees to the insolvent was not gross neglect towards the rest of the world; especially as they might have made the necessary entry on the rolls, and have still left the insolvent in possession of the estate. It shows, however, the necessity of careful inrjuiry on the part of mortgagees. 1535. In the case usually cited (c) as laying down the rule that fraud or gross negligence only in leaving the deeds will touch the priority of the legal mortgagee, the judgment has been, perhaps, more generally applied than was intended. The learned judge (Eyre, C. B.), laid great stress upon the distinction existing in fact, but not recognized in law(rf), between a mortgagee actually lending money on a security, and one who takes a security for a pre-existing debt, as it (h) Cole V. Coles, 6 Hare, 517 ; see (d) But see Baillie v. M'Kewan, 35 also Horlock v. Priestly, 2 Sim. 75. Eeav. 177. (e) Plumb V. Fluitt, 2 Anst. 432. EFFECT OF GIVING UP DKKDS. 8.>1 happened in that case. And it is obvious that fraud may, with far more justice, be imputed to a mort;^agee, who, not being compelled to lend his money till he has examined the title, and obtained the deeds, refuses to do either, than to him who seizes the security as a plank to save a debt which is in jeopardy, and takes the conveyance, trusting that he may afterwards set the deeds also. But the rule is now well estab- lished independently of this case. 1636. The same principles api)ly in cases in which the mortgagee has had, but has afterwards given up, the posses- sion of the title deeds. If, under the circumstances, it can be inferred that he did it fraudulently, or if gross negligence can be imputed to him, as for instance if he deliver the deeds to enable the mortgagor to make a limited security, Avhich by consent of the original mortgagee shall take precedence of his own, and a larger sum be raised, the mortgagee (e) will be postponed in favour of the incumbrancer, who, by his conduct, has been induced to advance money on the estate ; but if the deeds come to the mortgagor's hands without fraud or neglect by the mortgagee ; as for instance by the wrongful act of a third person to whom he had properly delivered them(/), or through misrepresentation on the part of the mortgagor, — as that he wanted the deeds to enable him to grant a building lease (<7) advantageous to the estate, or to show the lease to an intended purchaser (/t), that he might ascertain the nature of the covenants, after which it should be returned, — the legal mortgagee's priority will be saved, provided he be diligent in reo-aining possession of the deeds according to the mortgagors representation ; for if he neglect to demand them, or other- wise acquiesce in the loss of possession, he will be postponed (e) Perry Ilerrick v. Attwood, 2'> jriving up of deeds, that it seems easier Bcav. 2IG ; 2 De G. & J. -'1 ; 3 Jur., fen- mortgagors to defraud subsequent N.S. 995 ; 4 id. 101. It seems to have lenders, than for the hitter to protect hcen considered that this was not a case themselves hy ordinary vigilance, of neglitjcncc ; but the jnei-autions (/) Ex parte Mcux, 1 Gl. & J. 110. which should have been taken are so {ff) Peter v. Russell, 2 Vem. 726 ; obvious that it is ditKcult to tind any 1 Eq. Ca. Abr. 321. more appropriate term. The courts (^; Martinez r. Cooper, 2 Russ. 198. have allowed so nianv excuses for the 852 NEGLIGENCE OR FRAUD OF MORTGAGEE. as if the deeds had been at first given up improperly ; and this conclusion was strengthened where the prior mortgagee claimed by transfer from the original mortgagee, and having been his solicitor at the time of the transaction had given up the deeds without his consent (A). Nor will the prior mort- gagee be postponed, where it cannot be discovered by what means the deeds came back into the mortgagor's possession, provided there be nothing to show that the prior mortgagee enabled the mortgagor to commit the fraud ; the mere posses- sion of the deeds by the latter, without evidence that they were obtained through the negligence or fraud of the mort- gagee, being insufficient to postpone him (z). 1537. If the vendor allows the purchase-money or part of it to remain unpaid, but nevertheless executes and delivers the conveyance with a receipt indorsed, either for the avowed })urpose of enabling a security to be made to another incum- brancer, or under circumstances which enable another to acquire bona fide a security, the latter security, though it be but equitable, will have priority over the vendor, whether the mortgage be made for money then advanced or for a debt already due (A) : and even, it has been held, where the con- veyance was executed on the promise of one only of several joint mortgagees, who thereby obtained a security, that the vendor should first be paid out of the purchase-money (Z). But a conveyance or release so obtained cannot be used in favour of one who has not complied with the agreement on the faith of which it was made, or of any other person having no better equity than he (m). If the solicitor of an intended transferee of a mortgage, being himself one of the transferors, prepare and execute a transfer, and receive the money, but all the transferors do not execute the deed or sign the receipt, the money is in the solicitor's hands as his client's money, and not as mortgagee ; (h) Waldron v. Sloper, 1 Drew. 193; (*) Rice v. Rice, 2 Drew. 73. Dowle V. Saunders, 2 H. & M. 242 ; 10 (l) Smith j;. Evans, 28 Beav. 59 ; 6 .Jur., N. S. 901. Jur., N. S. 388. (i) Allen v. Knight, 5 Hare, 272 ; (»») Hatchell v. Crcmornc, LI. & G. on app. 1 1 Jur. 527 ; Carter v. Carter, t. Plunkett, 236. 3 K. & J. 617 ; 4 Jur., N. S. 63. FRAUD BY mortgagee's AGENT. 853 and if he misapply it his client will be the loser, though he have received interest from the mortgagor, as if the transfer had been completed {n). 1538. Where a mortgagee by transfer (from his own soli- citor, who was the original mortgagee in possession) handed the deeds to the solicitor, who also acted for the mortgagor, that an abstract might be made for an intended purchaser, but did not give him the deed of transfer to himself, whereby the solicitor was enabled to sell the estate under the original mortjrao-e, without notice of the transfer, and to receive and misapply the purchase-money : it was held (o) that the trans- feree should not be postponed if it could be shown that he had not authorized and had no notice of the payment of the j)urchase-money to the solicitor, to ascertain Avhich an issue was directed. And his keeping back the deed of trans- fer was treated as a natural precaution on the part of the transferee, and not as the result of any fraudulent motive. 1539. On the other hand it will be no excuse for the prior mortficasee, that another induced him to commit a fraud, though he himself be morally innocent of it. As Avhere the first mortgagee was induced by his solicitor to assign to another without consideration a prior mortgage, which had been executed but not acted on{p). The deed in this case being valid on the face of it, and no proceedings having been taken to set it aside, was held good. 1540. In order to affect a mortgagee with the conse- quences of the fraudulent act of his agent, it must be shown that at the period at Avhich the act was done, the relation of solicitor and client subsisted; it not being sufficient that it subsisted at a former period. Hence, a mortgagee will not be postponed to a subsequent purchaser, by reason that the solicitor whom he employed about the mortgage, and who also acted in the transaction for the mortgagor, assisted the latter in making the sale without notice of the moi'tgage ; and the (h) Griflfin v. Clowes, 20 Bcav. Gl. (p) Iliorns v. Iloltom, IG Beav. L'oD. (y) Stevens v. Stevens, 2 Coll. 20. 854 EFFECT OF SILENCE, CONCURRENCE relation of solicitor and client is not preserved by payment of interest on tlie morto-a(>;e throuirh the hands of the solicitor. In making such payments the solicitor generally acts as the agent of the mortgagor (*/) (1396), It will be no argument in favour of a second mortgagee, seekhig in such cases as these to displace the priority of the first, that the former mortgage was an improper invest- ment of trust money, and consequently a breach of trust (r). 1541, There are also many cases of loss of priority which illustrate the rule recognized both at law and in equity, that where one by his words or conduct wilfully causes another to believe and act upon a certain state of things, so as to alter his own position, the former cannot aver against him the exist- ence of a different state of things [s). Hence, where it can be shown that through the fraud or gross neglect of a prior in- cumbrancer, or his agent (t), another person has been induced to lend money on the same estate, the prior incumbrancer will be postponed ; as Avhere the prior incumbrancer, when informed that another security was in contemplation (u), denied or was silent as to his own charge on the estate — where the prior mortgagee advised (x) the other, as his counsel, to complete the loan, and himself prepared the deed with a covenant that the estate was free from incumbrances — where the prior mort- gagee engrossed (y) the second mortgage; and it was even held, where he only witnessed it (z), (though the principle of this decision was afterwards overruled (a), because a witness in practice is not privy to the contents of a deed), and the (7) Finch v. Shaw, Colyer v. Finch, (,/■) Dra])cr v. Borlace, 2 Vera. 370 ; 18 Jur. 935 ; 19 Beav. 500 ; 5 H. L. C. 928 ; ?. Jur., N. S. 25. (r) Allen v. Knight, 5 Hare, 272. («) Per Lord Denman in Pickard ?'. Scars, 6 Ad. & El. 4G9 ; sec Hooper v. Gumm, L. K., 2 Ch. Ajjp. 282. {t) Brown v. Thorpe, 11 L. J., N. S. Ch.73. («) Ibbottson V. Rhodes, 2 Vern. 554. An issue was directed on appeal to try whether this information was given. (Upton v. Vanner, 8 Jur., N. S. 405.) and see Brown v. Thorjje, supra. (y) Cited 1 Bro. C. C. 357. (z) Mocatta v. Murgatroyd, 1 P. Wms. 393. On the principle "that it would be presumed that every witness that could write or read was acquainted with the substance of the deed or in- strument which he, having attested it, midertook to support with his evi- ilcncc." (rt) 1 Bro. C. C. 357 ; Watts v. Cress well, 9 Vin. Abr. 415, pi. 24 ; Barret v. Wells, Pre. Ch. 131. OR FALSE REPRESENTATION. 855 same was liekl, where an incumbrancer, being present during a treaty fur settlement of the estate on a marriage, fraudu- lently concealed his mortgage from the person to be benefited, and agreed with the settlor to accept his personal security (i). And where a person entitled to charges upon an estate, of which she was also the devisee in trust, joined as devisee in trust and executrix, with the owner of the estate, in a mort- gage without referring to her own charges (c). But a mort- gagee need not go out of his way to give notice of his se- curity upon hearing that the mortgagor is dealing with the estate (d). The same equity was applied (e) against the representatives of a mortgagor, to make good his assertion to a purchaser of the estate, that part of the mortgage debt had by agreement with the mortgagee been transferred to other property, in exonera- tion of that agreed to be sold. The mortgagee having repu- diated the alleged agreement, and having obtained payment of the whole debt from the purchaser, the latter was allowed to come upon the property alleged to have been substituted, for the diiference. And where the loan has been made on the faith of a false representation by a stranger, the stranger may be compelled to make good the loss, though no fraud Avas in- tended (/). 1 542. The circumstance that an incumbrancer has wilfully obstructed a creditor, in carrying on proceedings upon the completion of which he would have been entitled to a charging order, has been held not to deprive the former of the benefit of his securities ((/). 1 543. The case of a bankrupt, who is suffered by his credi- tors to carry on business, and to receive the profits without first obtaining his certificate, falls within the principle, that if a man having a lien stand bv duringr the making of a new se- (b) Berrisford v. Milward, 2 Atk. (d) Osboni u. Lea, 9 Mod. 97. 49 ; Barn. Ch. 101. (c) A.-G. v. Cox, 3 H. L. C. 240. ((•) Strontr r. Ilawkcs, 4 De G., M. (/) Slim r. Cromhpr, 2 Gif. 37; G & G. 18t) ; 4 De G. & J. 632. And see Jur., N. S. 190, 437 ; 1 De G., F. & J. Commissioners of Public Works i\ 518. Harbv, 23 Beav. 508 ; 3 Jur., N. S. (r/) Shaw r. Neale, 20 Beav. i:.7 ; G 47 S." H. L. C. 581. 856 CONCURRENCE IN IGNORANCE OF RIGHTS. curity, he shall be postponed ; and the foi'mer creditors will be postponed to those who are subsequent to the bank- ruptcy {h). And notice of the fact that the bankrupt is so carrying on business Avill be imputed to the former creditors, if it appear that the bankrupt have paid oflf some of them, and that one of those paid was an assignee under the bank- ruptcy (/). So if the vendor of an estate, having notice that it was bought with trust money, leave part of the price under the absolute control of one of the trustees, Avithout the concurrence of the others, or of the cestuis que trust, he cannot, as against the other trustees or the cestuis que trust, claim a lien on the estate for the unpaid part of the purchase-money (A). 1644. Where a person, entitled to an estate subject to charges, was enabled to make an equitable security by pro- ducing receipts for the charges, which the persons entitled to them had signed on a bona fide agreement for a mortgage se- curity ; they, having been guilty of no fraud, and being prior in time, were preferred (/). And the rule does not apply, where the person, who con- curs in the deed, is ignorant of his right ; as where a mort- gagor, not aware of his right to set aside the incumbrance for fraud, concurred in a sub-mortgage ; for it is the per- sonal misconduct, in allowing the subsequent security, which binds him ; and this cannot exist without actual knowledge of his rights {m). 1546. An incumbrancer will not lose his priority by omit- ting to make advances necessary for the recovery of the fund which is the subject of the security, and to answer or notice communications by the mortgagor's ao;ent informino; him of the necessity for such advances; unless distinct notice be given, that if no advances be made a new charge will be created ; especially if the subsequent incumbrancer have taken the se- (//) Tucker v. Hernaman, 4 Dc G., {I) Beckett v. Cordley, 1 Bro. C. C. Mac. & G. 395 ; Troughton v. Gitley, .mbl. 630. (i) Tucker v. Hemamann, supra. (*) White V. Wakefield, 7 Sim. 401 Ambl. 630. (,/i) Cockell v. Taylor, 15 Beav. (i) Tucker v. Hemamann, supra. FRAUD I'.V MAKKIKI) \\()MI:N AM) IMAM'S. 8.07 curity without inquiry into the prior rights {it). But the first incumbrancer Avill not be allowed the benefit of advances made by the other, Avithout paying him the amount of his advances with interest (o). 1546. AVhere a person advances part of the purchase- money of an estate to an intended purchaser, who is, but not to the lender's knowledge, an uncertificated bankrupt, and pays the amount to the vendor, who executes the conveyance to the purchaser and delivers the title deeds to the lender ; and the purchaser afterwards gives the latter a memorandum of deposit, the whole being one transaction ; the lender acquires a lien on the deeds as against the purchaser's assignees ; for though in general an uncertificated bankrupt can only acquire property for the benefit of his assignees, and can therefore have no right to charge it as against them, yet here the estate was conveyed by the vendor on the undertaking of the lender to advance the money, and the conveyance, to the extent of the advance, was in fact made for his benefit (/?). 1647. Coverture being no excuse for fraud, a wife, who fraudulently enables her husband to raise money on her estate, shall be postponed to the mortgagee (q). And if a married woman, representing herself to be single, execute a mortgage in that character, the court, as against her, if she survive her husband, and as against her heir or other person claiming only as a volunteer through her, if she do not survive her husband, will give the mortgagee a specific charge, as an equitable mortgagee, upon the property upon Avhich he was induced, by the fraud, to lend his money (r). And so of an infant, if he be old and cunning enough to carry out a fraud, he shall make satisfaction. Therefore, if an infant remainderman, being almost of full age, be active in persuading a mortgagee to lend money on the security of a mortgage in fee, knowing the mortgagor to be but tenant (n) ^rvci-s r. United Giiannitoc and (/)) Mcux v. Smith, 11 Sim. 410. Life Assurance Company, 1 Jnr., N. 8. (y) Evans r. Bicknell, Ves. 181. 8;?3 ; 3 Eq. R. 579 ; 7 De G., M. & 0. (r) Vanghan r. Vanderstegon, 2 121. Drew. 363, 379. io) Id. M. VOL. II. ' 3 K 858 LOSS OR DESTRUCTION OF SECURITY. for life, he shall uot afterwards claim as remainderman against the mortgagee (s). Of the Loss or Destruction of the Subject of the Security. 1 548. The benefit of a security may be lost by the destruc- tion or loss of the property of which it is the subject (t). When the security is upon a ship which is captured by an enemy, it is lost, even though the person entitled to the benefit of it be a neutral, and though the debt were contracted in time of peace. The captors seize the gross tangible property with- out regard to any claims upon it as between the owners and other persons, whether by way of mortgage {u), bottomry (x), or lien (y), for purchase-money or on any other account ; and on the other hand Avhere the property is protected from cap- ture, the intending captors can derive no benefit from their enemies' ownership of such interests. But nothing; short of an actual total loss will discharge the condition of a bottomry bond. As long as the ship exists in the hands of the owner, whatever may be the extent of her damage, or if having been captured by an enemy she be retaken, there is no total loss or destruction (r). And if she be sold in a foreign port as unseaworthy, although without express notice of the bond, the purchaser will take subject to it (a). 1 549. The right of the owner of property generally, and therefore of one who has a pledge or other security thereon, is not destroyed by the mere transmutation of its subject-matter into a different form without his assent {b). («) Watts V. Cresswell, 9 Vin. Abr. 415, pi. 24 ; 2 Eq. Ca. Ahr. olG ; and see Cory v. Gertckcn, 2 Mad. 40 ; and Clare v. Bedford, 13 Vin. Abr. 53G-7 : and note, that in the principal case de- fendant was said to have been privy to a fui'ther advance after he came of age. (t) Story, Bailm. § 363. (?/) The Aina, Li Jur. 681. (x) The Tobago, 5 Rob. 218. ( y) The Marianna, 6 Rob. 24 ; The Ida, ] 8 Jur. 752. (::) Thompson v. Royal Exchange Assurance, 1 M. & S. 30 ; Joyce v. Williamson, 3 Dougl. 1G4. (tf) The Catherine, 15 Jur. 231. (h) Story, Bailm. § 363 ; Story, Agency, § 231 ; citing Taylor v. Piumer, 3 M. & S. 562 ; Lane v. Dighton, Ambl. 409; Lord Chedworth V. Edwards, 8 Vcs. 46 ; Whitecombe v. Jacob, 1 Salk. 160, and other cases of trust and agency. ( ( «"^^J ) CHAPTER XII. OF TAKING THE ACCOUNTS. Part I.— Of Accounts generally between the Mortgagor and Mortgagee. Part II. — Of Accounts of Interest. Part III.— Of Accounts of Costs. Part 1.— Of Accounts generally between the ]\roRT- GAGOR AND MORTGAGEE. 1550. TT7<o IS hound by Accounts. 1562. Of Accounts atjainst the ^loi-tgagor, and of the Bents and Profits. 1572. Of Accounts against the Mortgagee and his Assignees. 1581. Of Accounts against the Mortgagee in Possession. 1603. Of the Manner of Charging the Mortgagee in Possession. 1617. Of Allowances to the Mortgagee. 1622. Of taking the Account n-ith Rests. 1630. Of Carrging on the Accounts. Iflio is bound hy Accounts. 1550. An account, -wlietlier taken out of or in court, be- tween the mortn;agee and the mortgagor, or persons standing in liis place, binds subsequent incumbrancers, though they were not privy to the taking of it, unless there be fraud or collusion ; and particular errors must be shown, for to a merely general charge that the account was taken by fraud and collusion, a simple denial by the answer Avill be sufficient (a). 1551. And an account taken in court, between the mort- (fl) Sherman r. Cox, 3 Rep. in Cli. Wrixon v. Vizc, 2 Dm. & War. 102 ; 85 ; Needier r. Deeblc, 1 Ch. Ca. 2'tO ; notwithstanding Dick v. Butler, 1 Mol. Knight V. Bampfeild, 1 Vem. 170; 42; Williams i. Day, 2 Ch. Ca. 32. 3 K 2 SGO THE TERSOXS UPOX ■\VIIO:\I gagee and the tenant for life of the estate, will bind tlie person entitled to the vested remainder, though he were no party to the suit ; as well as a contingent remainderman, though not in esse when the accounts Avere taken (J); but accounts taken in the absence of the tenant for life, and of every other person interested in their correctness, -will not bind the remaindei-man. He will, therefore, not be bound by accounts taken under a decree had upon sequestration (c) in Ireland, (or which is equivalent to it, taken j)ro covfesso in England (rZ) ), and will be allowed, in case of a doubt as to the existence of the debt, to have a general account. Upon the same principle the mortgagor, or a person claiming under him, is not bound by accounts taken in his absence between the morto;ao;ee and the assignee ; and whatever the latter may have paid, he can claim under his assignment no more than is really due as between the mortgagor and the mortgagee, and is subject to have the accounts taken from beginning to end, though he had no notice by endorsements on the deeds, or otherwise, that part of the debt had been discharged (e) (1692). But it seems, that if redemption be sought after a great length of time, or the dismissal of a former bill to redeem, or several assign- ments, the account will not be taken {f) against an assignee in possession, but from the time of his purchase ; prior to which the profits Avill be set against the interest. 1552. '\\Tiere an insolvent is party to the suit he is bound by the accounts, though the assignee be absent {g). Where the tenant for life is a party to the suit, and the accounts have been fairly taken, the remaindermen being bound, will only {h) Allen V. Papworth, 1 Ves. 103 ; Belt's Sup. 01 ; see 2 D. & War. 205. (c) Wrixon V. Vize, 2 I)ru. & AVar. 192 ; Dick v. Butler, supra. (<f) It is irregular to take accounts ex parte under a decree taking the bill pro confesso for want of anxrver in England ; see King v. Bryant, 3 M. & C. 101. (e) Porter v. ITubhart, 3 CIi. K. 78 ; Matthews v. Wallwyn, 4 Ves. 1 ] 8 ; Chamhers v. Goldwin, 9 Ves. 2;"4 ; Mangles v. Dixon, 3 II. L. C. 737 ; Earl Macclesfield v. Fitton, 1 Vern. 169. If the mortgagor were a witness, but not a party to the assignment, the bill should charge that he knew and agreed to the contents of the deed. (Jamieson V. English, 2 Mol. 337.) (/) Pearson v. Pulley, 1 Ch. Ca. 102. in) Byrne v. Lord Carew, 13 Ir. Eq. K. 1. THE ACCOUNTS ARE niXDINO, 861 be allowed to surcharge and falsify (/<). And an infant heir will be bound bv an account taken in a suit in which his an- cestor was plaintiff; but leave will also be given hini to sur- charge and falsify (/). But it seems that, in the case of married women, the court Avill not dispense with the taking of an ac- count, and the substitution, by consent, of an affidavit verify- ing the amount due (j). 1 553. The transferee of a mortgage will be bound by a statement in the deed as to the amount due on the security, notwithstanding a special receipt clause to the effect that part of the sum is for costs, the amount of which is to be afterwards adjusted (A). 1 554. Sureties are bound by the accounts of a receiver ap- pointed by the court, where the accounts are regularly passed according to the course of the court (/)( 809). 1555. The accounts taken in a suit by a subsequent incumbrancer against the mortgagor and the prior incum- brancer, bind the mortgagor as to the amount of the debt due to the prior incumbrancer, so long as the decree remains unimpeached (jn). But accounts taken under a decree are not binding upon the co-defendants to the suit, as between themselves, except so far as the relief sought by the plaintiff required that such accounts should be taken as betAveen those defendants. In the case, therefore, of a simple bill to redeem against several inciun- brancers, it being unnecessary for the purposes of a decree to take the accounts between the co-defendants, the subsequent incumbrancers, any accounts so taken will not be binding as between them {ji) ; nor Avill the court in such a suit suffer one defendant to interrogate another as to his claims, where the discovery is unnecessary for the purposes of the decree, though it might be otherwise useful to the party seeking it ; it being (/i) Wrixoii I'. Vize, 2 Dm. & "War. (/) ^Meacl v. Lord Orrery, 3 Atk. 102. -'t^. (/) Badham v. Odell, 4 Bro. P. C. (//() Farqiiharson »•. Seton, 5 Russ. 340. 4.-1. (/■) Harrison V. Kennedy, 10 Hare, li. («) Cottinghain v. Emi of Shrcws- (A) In re Forsyth, 1 1 Jur., N. S. 213; bun,-, 3 Hare, (127. S. C. id. 615. 862 "WHEN SETTLED ACCOUNTS MAY a principle that, except for the purposes of the decree, no party to a suit may examine another. 1 666. The accounts also, whether they be taken in the pre- sence or absence of the interested parties, are not absolutely binding ; they may be opened for fraud or surcharged and falsified for error (o), either of law or fact. The relative situation of the parties, the manner in which the settlement of accounts took place, or the nature of the error proved, may amount to such fraud as will determine the court to open a settled account (/>) ; and this has been done after more than twenty years and the death of the person guilty of the fraud. But liberty to surcharge and falsify is given where there are only mistakes and omissions in the stated accounts {q) ; and it depends upon the principle, that one error ha\dng been proved others may be found. In either case the party seeking relief must prove fraud or particular errors, and his proof must be founded upon specific charges or statements in the bill (r). 1667. But where the relation of attorney and client subsists between the mortgagor and mortgagee, it has been held in Ireland that the accounts will be opened between them merely on a general allegation of error, if sufficient cause be shown ; and though this doctrine, which indeed is somewhat ambiguous, has not been supported by the Court of Chancery in England, yet in that court the account will be opened on slighter evi- dence than where the relation of attorney and client does not exist; but it is understood that where fraud, or error amounting to evidence of fraud, in the bill of costs, which forms the sub- Co) Vernon v. Vawdry, 2 Atk. lU) ; Chambers v. Goldwin, i) Ves. 205 ; Drew V. Power, 1 Sch. & Lef. 192 ; Needier v. Dccblc, 1 Ch. Ca. 299 ; Tay- lor V. Haylin, 2 Bro. C. C. 310. (i?) Roberts v. Kuffin, 2 Atk. 112. {q) Vernon v. Vawdr\% supra ; Roberts v. Kuffin, supra ; Davies v. Spurling, Tarn. 199 ; Allfrey v. All- frey, 1 Mac. & G. 87 ; Coleman v. Mellersh, 2 id. 309. (r) Drew v. Power, 1 Sch. & Lef. 192 ; Chambers v. Goldwin, 9 Ves. 206 ; Taylor v. Haylin, 2 Bro. C. C. 310; Parkinson v. Hanbury, L. R., 2 II. L. 1. Note, however, that this liberty has been given to a judgment creditor seeking to open a foreclosure to which he was not a party, where, before decree, the mortgagee had notice of the judgment. (Bird v. Gandy, 7 Vin. Abr. 45, pi. 20 ; 2 Eq. Ca. Abr. 251.) BE SUIICIIAKGED AXD FALSIFIED, 863 ject of the security, are relied on, there must be averment and proof of the specific items relied on as fraudulent or erro- neous (s). 1558. Particular statements of error are also only necessaiy where the bill seeks to impeach a settled account, and not where an account is prayed by the bill, and no settled ac- count is proved ; though the answer suggests the existence of a settled account. In such a case liberty will be given to sui'charge and falsify, if upon inquiry any settled account be found to exist, Avhether specific errors have been charged or not (/). An error in the accounts not detected in, but corrected and satisfied before the commencement of the suit, is no ground for a decree to surcharge and falsify the accounts (ii); on the other hand, a person whose account is impeached, cannot (a-) deprive his opponent of the benefit arising from the existence of errors in the account, or alter his rights, by giving him notice in the progress of the suit, as he from time to time discovers errors, that he is Avilling to correct them. 1659. In touching settled accounts the court looks at the principle involved, and not at the amount of the error, and will grant relief, however small may be the sum in question. Relief has thus been given upon an error of only a few shillings (y). The principle of purging an account, admitted to contain an error, by setting off" against it an error alleged to have been made in another account, in favour of the person prejudiced by the first, is inadmissible (c). It appears not to have been decided whether, where there (s) Lewes V. Morgan, Morgan r. Lawless v. Mansfield, 1 Dm. &. War. Lewes, Morgan r. Evans, 3 Y. & J. 557. 230, 394 ; 5 Price, 42 ; 3 Anst. 769 ; («) Davies v. Sparling. Tarn. 199 ; 4 Dow. 29 ; 8 Bligh, 777 ; Lawless v. 1 R. & M. 64. Mansfield, 1 Dm. & War. 5J7 ; Mat- (,»•) Lawless v. Mansfield, 1 Dru. & thews V. Wallwyn, 4 Ves. 118 ; Morgan War. 557. «". Higgins, 1 Gif. 270 ; Waters r. Tay- ( _;/) Lewes r. ilorgan, 5 Price, 8G ; lor, 2 My. & C. 526 ; Blagrave v. Routh, Lawless v. Mansfield, 1 Dru. & War. 2 K. & J. 509, and on appeal, 3 Jur., 616. N. S. 399. (r) Lawless v. Mansfield, supra. (t) Kinsman v. Barker, 14 Ves. 579 ; 864 ACCOUNTS AGAINST MORTGAGOR. are several distinct accounts, in some only of which errors are alleged and proved, all become liable to be surcharged and falsified (a). If a settled account be proved, as set up by the answer, and no error be shown by the plaintiff, the bill will be dis- missed (i) The reservation in an account of " errors excepted " does not prevent it from being considered as settled ; and such an account will be taken to be settled, where the balance is carried over to a new account (c). 1 560. It seems that where a plaintiff prays for an account he need not(c?) in general offer to pay the balance, if it be found against him ; for the prayer for an account is equiva- lent to such an offer, and on further directions the court will decree that he pay such balance. 1561. After the hearing of the cause it is not proper (e) to file a supplemental bill, for the purpose of bringing forward facts known to the plaintiff before the filling of the original bill, and praying that other matters may be considered in taking the accounts before the master. The plaintiff should ask leave to amend or to file a supplemental bill before the cause has gone so far. Of Accounts against the MoTtgagor, and of the Rents and Profits. 1662. The mortgagee is entitled to an immediate ac- count (/) of his principal, interest and costs, and to have a day fixed for payment or foreclosure ; and a bill so framed as to seek relief on other matters, in which he is not interested, and the consideration of which would delay the taking of the accounts, is demurrable for multifariousness (476). (a) Lawless ?;. Mansfield, supra ; and (e) Johnson v. Curtis, 3 Bro. C. C. see Chambers v. Goldwin, where, hoAv- 200. ever, the commission complained of (rZ) Colombian Government v. Roth- extended to all the accounts. (9 Ves. schild, 1 Sim. 103 ; Knebell v. White, ii54.) 2 y. & C. 20 ; and see Parker v. Al- (J) Endo V. Caleham, Youngc, 300; cock, Younge, 301. Drew V. Power, 1 Sch. & Lef. 192; (rO Swan w. Swan, 8 Price, 518. Lawless v. Mansfield, supra. (/ ) Pearse v. Hewitt, 7 Sim. 471. now DEBT MUST BE TUOVED. 865 The production oi" tlie security is generally prima facie evidence of the existence of the debt (//), and if i)ayment be acknowledged in the usual manner by the deed, and sworn to by the mortgagee in his answer, he need not prove the i)ay- nient of the consideration money by other evidence, even against a purchaser of the estate, especially after some tune has elapsed {h). But where there are manifest signs of fraud there must be proof of actual payment (/), and where there is an uncertainty as to the amount of principal due, either be- cause it is shown that the sum mentioned in the security was not advanced, but that only a running security was intended to be made (/t) ; or by reason of the making of further ad- vances (/), an inquiry will be directed to ascertain the amount lent, under or on the credit of the mortgage security, and if there be no evidence of the amount really lent, the mort- o-ao-or will be charged to the extent of his own admissions only(7«) (699). 1 563. Entries in the books of a deceased person, who was the solicitor of the mortgagor, at the date of the mortgage, to the eflfect that he had received the money and had paid it over to the mortgagor, are admissible (») as evidence of payment of the mortgage money : even though the result of taking those items into account between the mortgagor and the soli- citor was to leave the latter to a slight amount the creditor of his client ; the entry being considered upon the whole to be against the solicitor's interest. 1 564. In the case of a mortgage, given to a solicitor by («7) riddock v. Brown, 3 P. Wms. 2 Ilai-e, 310. 289. {h) Melland v. Gray, 2 Y. & C. C. {h) Holt V. Mill, 2 Vcni. 270 ; C. 109. Hampton v. Spencer, id. 288. In God- (/) Gordon v. Grahiun, 7 Viu. Abr. dard v. Complin, 1 Ch. Ca. 119, the 52, pi. 3. coiut thought such evidence good (?«) Melland v. Gray, supra, against a jointress, ten years having («) Clark v. Wilmot, 1 Y. & C. C. passed ; but the jilaintitT insisting that C. 53 ; 2 id. 259, note. The same laid it was not enough, there was further down by Holt, C. J., of a scrivener's evidence. book, but not in favour of the scrivener (J) Piddock V. Brown, 3 P. AVnis. himself. So of the book of the bui-sar 289 ; see as to pro^■ing consideration of a college. (Smartle v. AVilliams, for a bond debt, Whitaker v. Wright, Comberbach, 249.) 866 KIGIIT OF MORTGAGEE his client to secure the amount of a bill of costs, the court will assume, after several years have elapsed, that the business charged for was actually done ; but the peculiar jealousy with which it watches such transactions will cause it to direct an inquiry as to the fairness of the charges, although at the time of executing the security the client had assented to the bill(o). And Avhere money has been lent by the attorney to the client, the security is not conclusive proof of the actual advance, which must be proved by other evidence (/;). 1565. An account of profits rQCQiyeA pendente lite will not be directed by the court in favour of judgment creditors (^q) against the original debtor and owner of the estate, upon setting aside a fraudulent conveyance ; the principle with re- spect to such creditors being merely to remove the obstruction from their way, so as to leave the estate free for them. 1666. The rents and profits received by the heir, being part of the assets of the ancestor, against which the judgment creditors could have had judgment at law, they are entitled to an account of them against the heir in equity (r). 1567. The right of the legal mortgagee is to take posses- sion ; and so long as he abstains from doing so, neither the mortgagor, remaining in possession (5), nor his assignees in bank- ruptcy, nor a person holding under a mere voluntary trust for the mortgagor, and whose possession may therefore be con- sidered to be that of the mortgagor {t), is bound to account to the mortgagee for the rents. And this rule applies not only to the case of a mortgage in fee, but also to a security upon a term (m), or an estate for lives (a;); precluding any account, though the tei-m have expired, or the lives dropped ; and (0) Wragg V. Denham, 2 Y. & C. 117. ( p) Lewes v. Morgan, 3 Y. & J. 394 ; ,") Price, 42 ; 8 Bligh, 811 ; Lawless v. Mansfield, 1 Dru. & War. 557 ; Gres- ley V. Moulsey, 8 Jur., N. S. 320. (q) Higginsv. York Buildings Com- pany, 2 Atk. 107 ; and sec 10 Hare, 43. (r) Higgins i'. York Buildings Com- pany, supra. («) Drumniond v. Duke of St. Al- bans, 5 Ves. 438 ; Ex parte "Wilson, 2 Vcs. & B. 252 ; Higgins v. York Buildings Company, supra ; Ex parte Calwell, 1 Mol. 259. {t) Hole V. Lord Bexley, 20 Beav. 127 ; Flight V. Camac, 4 W. R. 654, L.C. (m) Gresley v. Adderley, 1 Sw. 573. (.») Coleman v. Duke of St. Albans, 3 Vcj, 25. TO UENTS AND PROFITS. 8f)7 :is well to the owner of an estate in possession, keeping down tlie interest of charges on the estate (y) as to an ordinary mortgagor. 1668. Xor will the mortgagee out of possession be entitled to the rents paid by the tenants to the receiver in the cause, even after notice given them by the mortgagee ; it being first necessary to apply to the court to discharge the re- ceiver (735). Xor to growing crops which have been re- moved by the mortgagor between the time of demand and recovery of possession, unless he can claim them as emble- ments, under an express contract of tenancy ; but he has a right to all crops growing on the premises when he takes possession (z). 1669. The legal mortgagee, who gives notice to the tenant to pay him the rent, becomes entitled to the rent which is due at the date of the notice, as well as to that which accrues afterwards, whether the lease be made before or after the mortgage ; for in the one case the lease is void against the mortgagee, and in the other notice of the morto-aore to the tenant operates as an attornment by him (a). In bankruptcy, also, the rule is that the legal mortgagee takes the rents (Z») from the time at Avhich he enters or gives notice to the tenant ; or if he neither enters nor gives notice, then from the time of sale only, the order for sale not being equivalent to notice. But as the equitable mortgagee cannot generally take pos- session, his right to the rent does not arise by notice to the tenant, and is not recognized till the order for sale is made. From that time he is entitled to the rent (c), even though an inquiry as to the dates of his securities form part of the order (rZ). And if by any means he should get into la■^^•f^d (y) Earl of Cliircndon c. Bailiam, monts under licence to dig brick earth, 1 Y. & C. C. C. 688. held to belong to the mortgagee as rent (z) Ex parte Temple, 1 Gl. & J. in ancar. (Ex parte Hankey, Mont. & 216. Mac. 247.) {a) Moss V. Gallimore, 1 Dougl. 27'.t; (<•) Ex i)arte Burrell, 3 Mont. & A. Keech v. Hall, Dongl. 21 ; Pope v. 439 ; Ex parte Carlon, id. 328 ; 2 Biggs, B. & C. 245 ; sec 4 Ann. c. Dea. 332 ; Ex parte Scott, 3 M. & A. 16, ss. 9, 10. 592. (b) Ex parte Living, 2 :^Iont. & A. (d) Ex parte Thorpe, 3 Mont. & A. 223 ; Ex parte Barnes, 3 id. 497. Pay- 441. And where for want of sufficient 868 receiver's right to rents. possession, he will be entitled, as a legal mortgagee under like circumstances, to the rents from the date of his possession (e), and he will not be made to refund them upon the granting of the order [f). From the time of the receiver's discharge, or of the appli- cation for it, the mortgagee may be considered to be in pos- session, and to be entitled to the rents {g). And when a se- ([uestration has been issued for contempt, the rents received by the sequestrators will be ordered to be paid to mortgagees coming in to be examined pro interesse suo, and showing their title ; because the sequestrators are officers of the court, and hold for the persons rightfully entitled, and not for the plain- tiff (A) (783). If, however, the mortgagee be dispossessed by the mort- gagor's collusion with the tenants, and his persuasion to attorn to him, he ought to account for the rents uj)on coming to redeem {i), and the court will restrain him from committing waste (A), if necessary, though no injunction be prayed by the bill. 1570. The receiver is entitled to rents in arrear at the time of his appointment ; but as to the produce of crops shipped to the consignees of the mortgagor, but not converted prior to the appointment of a receiver on behalf of the mort- gagee (J), the mortgagor is not obliged to give any account of it. 1571. If })ayments be made by the mortgagor to the ori- evidence, the claim was referred for 500. Sec Murtagh v. Tisdall, 2 Ir. Eq. further inquiry, and aftenvards was es- E. 41. tablished, the rcnt.s were allowed from (/) Mead v. Lord Orrery, 3 Atk. the date of the order of reference. (Ex 235. parte Smith, 3 M., T>. & De G. 080.) {l-) Goodman v. Kine, 8 Beav. 379. (e) Ex parte Bignold, 4 Dea. & Ch. {I) Codrington v. Johnstone, 1 Beav. 259 ; 2 ]\Iont. & A. 214 ; 4 L. J. 520. As to the right of prior mort- (N. S.) Bank. 58. gagces and judgment creditors who (/) Ex parte Williams, 13 W. R. have extended a receiver obtained by a 504. puisne incumbrancer under the mort- (//) Thomas v. Brigstocke, 4 Russ. gage and receiver acts in Ireland, to 64. rent in arrear, sec Davoren v. Collins, 2 (A) Walker r. Bell, 2 Mad. 21 ; and Jo. 807 ; Coleman v. Mason, 4 Ir. Eq. see cases cited there; Tatham v. R. 421; Boyd v. Burke, 8 id. GOOj Parker, 1 Jur.,N. S. 992 ; I Sm. & Gif. Moore v. Marquis Donegal, 11 id. 412. ACCOUNTS AGAINST MORTGAGEK. 809 iilnal inorti>ao;ec, af'tei* but witliout notice of the assiirniuent, the assignee >viil be bound to allow such payments (?«). Of Accounts against the Murtcjacjec and his Assirjnees. 1572. 11", upon a sale of the mortgaged estate by tlie mort- gagee, under his power of sale or otherwise, or by the mort- srajror, Avith the mortfragee's consent, it be aojreed that the purchase-money shall be received by the latter, in part re- duction of the debt ; or if it appear from the nature of the transaction that the money was i)aid to the mortgagee in respect of the mortgage, the payment will be taken (tj) as atrainst the mortfjasjee to have been so made, and not to have been made on a general account, between him and the mort- gagor. And if the mortgagee have adopted the mortgagor's contract for sale, the mortgagee as between himself and the purchaser stands in the mortgagor's place, and must bear the loss occasioned by the insolvency of a person to whom the de- posit has been paid (o). Interest paid on money which is afterwards found not to be included in the mortgage, Avill not be taken to have been paid on account of the principal (/?). 1573. Where a morts-ao-e creditor insured a life to secure himself against a certain risk, and the risk ceasing, the office nevertheless paid him the amount secured by the policy; it was held, that his right being only to guarantee himself against a loss by the particular risk, the guarantee was satisfied when the risk ceased ; and, therefore, that the money was not paid by the office under tlie contract of indemnity effected by the policy, and was not a payment in part discharge of the security ((/). The principle that life insurances are contracts of indem- nity, being now exploded (r), the reason for this distinction (w) Williams v. Sorrcll, 4 Ves. 389. {q") Henson v. Blackweli, 4 Ilaiv, («) Young V. English, 7 Boav. 10 ; 434. Johnson v. Bounic, 2 Y. & C. C. C. (?•) Dalliv v. India and Ix>ndon Life 268. Assurance Comiiany, IS Jur. 1024 ; see (o) Rowe V. May, 18 Beav. 613. also Law v. London Indisputable Life (^)) Blandy v. Kimbcr, 2.j Beav. Policy Company, 1 Kay & Jo. 22;3. 53 870 ACCOUNTS AGAINST PURCHASERS seems to have failed, and the case would perhaps now be de- cided upon the ordinary principles relating to policies of insurance effected as collateral securities (1821). 1574. As a general rule, the bond Jide purchaser of an incumbrance, for less than is due upon it, or than it is worth, whether he be a creditor of the mortgagor {s) or a stranger {i), is entitled, both against the mortgagor or his heir (m) and other incumbrancers (.r), to be paid all that is due on the purchased security (1661) : and there is no right against him for an account of what he has paid for his purchase (?/). So if the reversioner in fee, not being the original mortgagor of an es- tate which is subject to several charges, purchase the first for less than is due upon it, he may hold it for all that is due, and the puisne incumbrancers shall have no account against him, nor any equity to make the purchased security stand only for the price which he paid for it {z). This rule, which in several earlier cases (a) was somewhat differently stated, depends upon the principle {h), that the assignee stands in the place of his assignor ; and as the latter might have assigned to him (s) Morret v. Paske, 2 Atk. 54 ; it seems not to be applicable where Darcy v. Hall, 1 Vem. 49. the purchase was made by a puisne in- {t) Davis v. Barrett, 14 Beav. 542 ; cumbrancer. And in the colony the Anon., 1 Salk. 154. privy council has refused to allow the (m) Phillips V. Vaughan, 1 Vem. question of the amount of the considera- 336 ; Ascough v. Johnson, 2 Vem. tion paid by a transferee to be entered 60. into where the purchase was fairly made, {x) Morret v. Paske, 2 Atk. 54. and had been recognized judicially in the (//) It was otherwise by the civil law presence of the mortgagor, holding as altered by the Lex Anastasiana, that the Anastasian law, or any analo- under wliich an assignee for valuable gous rule, cannot justly be apjjlied to consideration of a debt or other chose cases free from the taint of unfairness, in action, whether secured by mort- nor unless it be clearly shown to be ap- gage or otherwise, could not recover plicable. (Colquh. R. C. L. § 1758 ; 3 against the debtor or his estate, for more Burgc, Com. 550 ; Macrae v. Good- than the consideration which he paid to man, 5 E. F. Moore, 31 G.) the assignor, with legal interest from {z) Davis t'. Barrett, 14 Beav. 542. the time of payment. This law, in- («) See Phillips i;. Vaughan, 1 Vera, eluding the right to compel the ces- 336 ; Long v. Clopton, 1 Vem. 464, n. ; sionary to swear to the amount jiaid, Williams t>. Springfield, id. 476. by which after tender he is bound, is {h) Anon., 1 Salk. 154 ; and see said to prevail in Holland, and as part Dobson v. Land, 14 Jur. 290 ; 8 Hai-e, of the Koman Dutch law is in force 216. in the colonv of British Guiana. But OF INCUMBRANCES. 871 (jratis, it is but just that the measure of the aHowance shouhl be what was due, and not what was paid. The assignee takin<^ the hazard, should also have the benefit of the bargain, of which neither the mortgagor, nor any subsequent incum- brancer, can have any equity to deprive him. 1675. The rule is, however, dittcrent, if the purchaser of the incumbrance be a person, in whom the estate charged with the incumbrance has become vested, subject also to other lia- bilities of the former owner ; as the heir at law, or executor of the latter (c): or if he be a person standing in any con- fidential relation with the mortgagor, by reason of which his interest and his duty are in confiict, unless (as is laid down in Vei'non {d) ) the purchaser have bought to protect an incum- brance to which he himself is entitled. Such is the position of a guardian (e), trustee {/), counsel ([/) or agent {h) ; the tenant for life also, according to Lord St. Leonards, if he buys a mort- gage on the inheritance for less than is due, does so for the benefit of the estate (/); and subject to the same equity is the surety {k) of the mortgagor : who, being liable upon a con- tract of indemnity with his principal, is under an obligation, if he can make terms with the creditor, to treat the settlement as a payment of the debt, and to give his principal the benefit of the arrangement. To all these persons, therefore, no more will be allowed in account, than they have paid for the incum- brance, with interest at the legal or current rate, if that be less than the interest reserved (/). 1576. This equity continues to operate, although the actual employment, or circumstances, which produced the re- lation of trustee and cestui que trust, have ceased to exist ; so (r) Braithwaite v. Braithwaite, 1 (Z;) Hobday r. Tctcrs, 28 Bcav. 349 ; Vern. 335 ; Morret v. Paske, 2 Atk. 54. G Jur., N. S. 794 ; Morrct v. Paske, (rf) Darcy v. Ilall, 1 Vern. 48. supra. {e) Towell v. Glover, 3 P. Wins. (/) Sec Hill v. Browne, Dr. 42G ; G 251, note. Ir. E4. K. 4o;}. (/) Morret v. Paske, supra; see (Z;) Reed r. Norris, 2 My. & Cr. 361 ; also Baskett t\ Cafe, 4 De G. & S. Ex parte Kushforth, 10 Ves. 420 ; But- 388. Cher r. Churchill, 14 Ves. 567. (j) Carter v. Palmer, 8 CI. & Fiu. (0 Caiter v. Palujer, 8 CL & Fiu. 657. 657. 872 WHEN PURCHASER IS TRUSTEE. that the purchaser of au iucunibrauce, avIio has stood towards those interested in the estate in the relation of trustee, al- though he no longer does so, will be allowed no more than he has paid, unless he have entered into a fair contract with the persons interested, that he may become the purchaser ; or can show, that there was no fraud or concealment, nor any ad- vantage taken of information acquired in the character of trustee (m). A moi'tgagee, after payment of his mortgage debt, has been said (n) to be a trustee within this rule, but hardly seems to be within the principle ; unless, perhaps, it be a mortgagee in possession, holding over after payment. But though the pur- chase be made by a person, who, under ordinary circumstances, would be allowed no more than he paid ; yet if it were made under the advice of a puisne incumbrancer, who did not dis- close the fact, that he, and not the purchaser, would reap the benefit of it, the full sum due will be allowed to the assignee (o). 1577. Where it was alleged by the mortgagor in his bill, that the assignment w^as made to the solicitor of the assignor, under an arrangement between the plaintiff and the assignor of the mortgage, so that the solicitor became a trustee for the mortgagor, and the estate redeemable at the price paid by the solicitor, though he had afterwards assigned in consideration of the Avhole principal money secured by the deed; the court, in the absence of sufficient evidence on the point, gave (/») the mortgagor the option of taking an inquiry into the truth of the circumstances under which the assignment was alleged to have been made. (to) Carter v. Palmer, 8 CI. & Fin. widow ; but, according to the Reg. 857 ; Ex parte James, 8 Ves. 252 ; Lib. A. 1717, 609, the mortgagee only Coles p. Trecothick, 9 Ves. 247. claimed the sum which he had paid for («) Baldwj-n v. Banister, 3 P. "Wms. the dower, and which was allowed him. 251, n. ; but see Dobson v. Land, 14 It appears, therefore, that the point did Jur. 288 ; 8 Hare, 216. According to not arise. ihQ rQT[\ori oi Baldwynw. Banister, thQ (o) Bayly v. Wilkins, 3 J. & L. heir of the mortgagor was to have the 630. benefit of the purchase by the mort- {p) Batchelor v. Middlcton, 6 Hare, gagee of the dower of the mortgagor's 75. BIORTGAGEE IN POSSESSION. 873 1678. Creditors who sell the securities in their hands, and purchase themselves, must take them at the market price of the day, and cannot credit the debtor with less than that price on the speculation, that, if the securities had come together into the market, the price would have fallen {q). 1 579. It has been laid down, that on a bill for an account, evidence as to the state of the accounts ought not to be al- lowed at the hearing, because of the inconvenience of taking an account in part, which ought to be taken altogether on a subsequent proceeding (r). But it has been pointed out that such evidence, though inadmissible to prove at the hearing the particulars of the account, may be material to show the rio-ht to an account where the defendant has not in terms con- ceded it ; for the right is then matter of evidence {s). The court may decide, at the hearing on the report and merits, how the accomit ought to be taken {t). 1580. In a question as to accounts which had been kept by a creditor in the position of a trustee, but which were always open to the inspection of the debtor, the books Avere admitted as prima facie evidence of the amount of all monies received and paid by the creditor, with liberty to surcharge and falsify {u). Of Accounts against the Mortgagee in Possession. 1581. The mortgagee Avho takes possession of the mort- o-aged estate is required to be diligent in realizing the amount due on the mortgage, that the estate may be restored (x). He is liable (y) to account for the rents and profits during his (q) Stubbs V. Lister, 1 Y. & C. C. C War. CSS ; Skirrett v. Atliy, 1 Ba. & 81. Be. 433. (?■) Walker v. Woodward, 1 Russ. («) Ogden v. Battams, 1 Jiir., N. S. 107; Law v. Hiintcr, id. 100. And 791. Alderson, B., seems to have been in- (_x) Vcv Turner, L. J., Lord Ken- clined, upon these autliorities, to reject sington v. Bouverie, 7 Dc G., M. & G. evidence at the hearing that an anniii- 157 ; 1 Jur., N. S. 581. As to the tant was not overpaid (Knebell v. different nature of the possession of a White. 2Y.Sc C. 20. ) person who holds under a receivershii) («) Toniliu V. Tonilin, 1 Hare, 23G, deed, see S. C. 245. ( >/) Gould V. Tancred, 2 Atk. 534. (f) Bunie ;•. Robinson, 1 Dru. & M. VOL. II. 3 L 874 ACCOUNTS AGAINST PAWNEE OF CHATTEL. possession (and in taking snch an account the vStatute of Limitations is no bar (z) ), unless he can enter into possession under sucli an agreement with the mortgagor, for possession at a fixed rent, as the court will uphold (357). 1582. The pawnee of a chattel is also bound to render a due account of all the income and profits derived from the pledge (867), where such an account is within the scope of the bailment, as in the case of profits arising from the labour of cattle pledged ; being, however, entitled to deduct all ne- cessary costs and expenses. But it is considered that the pawnee is only liable for such profits as he might have, but has not made, when he has neglected an unplied obligation to employ the pledge at a profit, as in the case of a ferry-boat or a coach, the employment of which, in the ordinary mode of hire, was contemplated by the parties (a). There appears, however, to be a distinction as to benefits incidentally arising to the pawnee from the possession of the pledge, and not ac- quired by its employment for profit, where the pawnee is put to expense in keeping it ; for we have already seen that if the pledge be a cow or a horse, the pledgee may take the milk of the one, and may ride the other, by Avay of recompense. 1583. A person in possession of an estate under a deed which is in eficct a mortgage, accounts as a mortgagee, thousfh the deed under which he holds is in terms a deed of trust (h). The representatives of an incumbrancer (being also the trustee), under a deed by virtue of which he was to be in pos- session, and to apply the rents in payment of the interest and principal of the mortgage debt during a certain period, and then to sell and pay oft' the residue and hold the surplus upon the trusts of the deed, are only liable to account (on a bill filed by them for an account and sale and payment of the mortgage debt) as mortgagees in possession during actual possession, and not for rents which the trustee might have received if he had taken possession earlier, though after ac- cepting the trust he had for many years suffered the settlor to (z) Hood r. Easton. 2 Jur., N. S. (h) Chambers v. Goldwin, 5 Ves. 729. 834 ; 9 id. 254. {a) Storj', Bailments, § 348. LIABILITY OP MORTGAGEE IN POSSESSION. 875 receive the rents ; hut it seems that upon a cross bill by the cestnis que trust of the settlement to have the benefit of the trusts, the trustee's estate might have been made liable to the earlier rents also (c). 1584. A mortgagee is not held to have taken possession merely because he has insured the property, or has asked for without obtaining the rent, if there be no evidence of an act amounting to attornment (f/). It is in the discretion of the court to grant an inquiry as to the fact of possession, though it is usual to grant it upon the suggestion in the answer. The inquiry will be, whether the mortgagee have been in possession of the rents and profits as mortgagee, and if he have, the account is directed to be taken against him as such, including -wilful default (e), and admission of possession, though contrary to the fact, has been held to make him liable to account on that footing (/). The mortgagee who gives notice to the tenant not to pay rent to the mortgagor, and yet does not take possession, must answer for any loss arising from his neglect {g). He is, how- ever, not bound upon taking possession to enter upon the whole of the mortgaged property ; and if he sufier the mortgagor to receive the rent of part, he will not be charged constructively, as if in possession of the AA'holc (A). 1585. He is subject to account to those who are interested in the equity of redemption, and he cannot by any dealing with the estate discharge himself of this liability (z). After receiving notice of a puisjie mortgage, the mortgagee in pos- session becomes liable to account to the pidsne incumbrancer for so much of the surplus rent as he has paid to the mort- gagor or his representatives ; but so long as the mortgagee in possession is without notice, the jmisnt mortgagee cannot call (<) Bcarc v. Prior, G Beav. 183. court (1603). id ) Ward r. Carttar, ;]5 Bcav. 171. (/) Parker v. Watkins, Johns. 133. ic) Dobson V. Lee, 1 Y. & C. C. C. (y) Heales v. :M'Murray, 23 Beav. 714. But no special direction as to 401. wilful default seems necessary, for ae- (//) Soar r. Dalby, 15 Bcav. loG. counts are so taken apjainst the raort- (/) Hiudc v. Blake, 11 L. J., N. S. gagcc in possession hy the course of the Ch. 2G. 3 L 2 876 RENTS RECEIVED BY MORTGAGEE. upon bim or the mortgagor for an account of the bygone rents (_/). 1686. The suit of the puisnt incumbrancer, brought to enforce his claim (the prior incumbrancer being made a party), amounts to an equitable possession of the rents, and binds {k) the surplus rents in the hands of the prior incumbrancer until the dismissal of the bill, though the suit be not prosecuted. And the mortgagee must account for whatever he may receive after the decree to account (/), though the practice is to direct the account without future words. But, it is said, he is not bound to account for the profits received after foreclosure to a puisne incumbrancer, though he had notice of his claim before decree {yn). 1587. As to surplus rents which the mortgagee has paid over to or allowed the mortgagor to receive, before any other creditor commenced proceedings or gave notice of his claim, the morto-ao-ec Avill be allowed them in account as matter of just alloAvance, or may have leave to set off any just demand, if he find that he can avail himself of any such matter of dis- charge ; and no creditor can recover the rents so paid over or received in any subsequent proceeding (w). A mortgagee in possession is chargeable with surplus rents, which, instead of applying in discharge of principal and interest, he has allowed to be received by a married woman, the owner of the estate, for her maintenance, without her husband's permission ; but if there be reasonable ground to suppose that on application to the court, such payments would have been ordered or sanctioned, the mortgagee will not be charged with costs, of which none will be given on either side ; although, by disallowing the payments, the balance of the account be turned in the mortgagor's favour (o). "o^is^ (j) Haddocks r. "Wren, 2 Cli. R. 582. 209 ; Berney v. Scwcll, 1 Jac. & W. {m) Bird v. Gandy, 7 Vin. Abr. 45, C47 ; Parker v. Calcraft, C Mad. 11 ; pi. 20 ; 2 Eq. Ca. Abr. 251. Archdeacon t'. Bowes, 13 Price, 353, (n) Archdeacon r. Bowes, 13 Price, 308. 353 ; Holton v. Lloyd, 1 Mol. 30. (/O Parker D. Calcraft, Mad. 11. (o) Clark r. Cook, 3 De G. & S. (0 Bnlstrode v. Bradley, 3 Atk. 333. JUDGMENT CREDITORS ; GUARDIANS; ASSIGNEES. 877 1588. If a mortgagee by mistake include iu a lease of the moi'tfjrao^ed estate land Avhich is not morto-agcd to liim, but to another incumbrancer, Avho concurs in the lease, the latter will be entitled to have the rents apportioned, and to au account of a proportion of the back rents {p). 1589. If the incumbrances be such, that they cannot be made effectual -without execution (as in the case of a charge upon an ecclesiastical benefice, which must be perfected by sequestration (881) ), a subsequent execution creditor is en- titled to an account against an earlier, although there be incumbrancers prior to both who have not taken out execu- tion ; for their incumbrances, if not proved iu the cause, are not recognized by the court ; and the owners of them, being unable to take the surplus themselves, are not suffered to keep it against others who have been more diligent (y). 1590. Where a prior judgment creditor, entitled to pos- session under writs of elegit, agrees mth others in possession as to the discharge of his debt, the accounts will not be so taken as to benefit another puisne incumbrancer, and affect the rights of the prior judgment creditor under the agree- ment, on the ground that the latter, by a subsequent transac- tion, has precluded himself from getting any further benefit from his writs (r). 1591. If the guardian of an infant take an assignment of a mortfrase on the infant's estate, he must thenceforth account as mortgagee in possession {s) (though the original mortgagee had not entered), and not as guardian, for the rents and profits which have been, or might have been, received by him since the assignment. But a solicitor who pays oft' the mortgage debt of his client will be treated as his agent, and not as mortgagee in possession, though he receive the rents {£). 1592. As the assignee of a mortgage claiming under an assignment, made wnthout the privity of the mortgagor to the (;;) Han-3-mnn t\ Collins, IS Jur. (.s-) Bishop r. Sharpc, 2 Vcrn. 469. 501 ; 18 Bcav. 11. (f) Ward v. Carttar, L. K., 1 Eq. 29 ; {q) Cuddingtou v. Withy, 2 S\v.l74. 3j Beav. 171. (r) Helcc. LordBcxley, 17Bcav. 14. 878 ACCOUNT AGAINST TENANT FOR LIFE account, will receive from the mortgagor so much only as is due ou the security, without reference to what -was paid on the assigimient, so the mortgagor, upon an assignment so made, loses none of his right to an account of past receipts from the mortgagee (?0 '^vho has been in possession, though the latter may have accounted Avith the assignee (1551) ; nor does the mortgagee get rid of his liability to future accounts, but may be decreed to account, both before and after the assignment : which seems to have been put upon the reason that the mortgagee must be responsible for the person to whom he assigns the mortgagor's estate. It has been doubted, whether, if the mortgagor hide so that he cannot be served with process in a foreclosure suit, the mortgagee should be answerable after assignment (:i-). 1593. "Where the creditor is in possession of the debtor's estate, as receiver under his power of attorney, and after- wards becomes mortgagee of the same estate, he will not necessarily be charged as a mortgagee from the time of his becoming so : but must still account ( ?/), and be entitled to allowance as a receiver, during the subsistence of the trusts for which the power was executed. 1594. The tenant for life being bound to keep down the interest upon mortgages {z) (1643), the accounts will be taken as against his assignee on the footing, that as such assignee he was bound to keep down the interest of the in- cumbrances affecting the inheritance, which were vested in him, out of such rents as he had received (a) : but during the life estate the assignee is not liable to account as a mortgagee in possession (b). 1595. An account of profits Avill be directed back in favour of the OAvner of an estate, from whom a fraudulent conveyance has been obtained, such account however being (u) Vcnahlcs v. Foylc, 1 Cli. Cu. 2 ; (a) Incorijoratcd Society r. Richards, 1 Eq. Ca. Abr. 328. 1 Dru. & War. 258. In this case the (a;) Id. assignee was holding over adversely to ( y) Lord Trimleston v. Ilamill, 1 those in remainder, Ba. & Be. .377. (b) Whitbread v. Smith, 3 Do G., (z) Blake v. Foster, 2 Ba. & Be. Mac. & G. 727. 387. AND JUDGMENT CREDITOlC. 879 liable to be limited to the time of filing the bill if the owner have not been diligent in asserting his right (c). 1596. It has been held in Ireland ((/), that the elcf/it cre- ditor in possession is not bound to account as a mortgagee in possession at the suit of a judgment creditor, who has not sued out an eler/it and has given no notice of his claim to the creditor in possession ; but that he shall only account from the filing of the bill. But where the debtor, or his representative (being persons in privity with the estate), seek an account from the cler^it creditor, the latter shall account (e) for all that he might have received without wilful default. So, in England, Avhere an elegit creditor came under 1 & 2 Vict. c. 110, s. 13, for a sale of the estate, he was compelled to submit to account as a mortgagee in possession (/), as the l">rice of the relief sought ((/), although Lord Ilardwicke's remark, that equity would oblige the judgment creditor (/<) to account for the whole that he had received, was cited as a proof that no further account could be had against him. The general liability of the judgment creditor to account as a mortgagee in possession Avas doubted by Sir Anthony Hart (i). 1597. To avoid circuity a judgment creditor, who gets into possession as assignee of a term of which he is a trustee for the debtor, and not under an elegit, may set oflf the rents and profits which he has received, against the amount due to him in respect of his judgment debt; but he will be charged as mortgagee in possession {k). {c) Mulhallen v. Maruni, 3 Dm. & War. 317. (rf) jM'DonncU v. Walshc, 2 Dni. & War. 252 ; see Sliaw v. ^lurtagh, Hayes, 580. (e) O'Brien v. Maliou, 2 Dm. & War. 306. (/) Bull I'. Faulkner, 1 Do G. & S. G85. ( g^ Account of the sum due to tlio jiUuntiff for principal, interest and costs, on his judgment debt [or, ii'liere the judgment creditor is an as- signee, on foot of the judgment ob- tained hy A. against B.], and of all sums received hy him, or by his order, or for his use, in respect of the rents and profits of the lands, whereof pos- session had been delivered to him by the sheriff [cr from and out of the real imd personal property of the judgment debtor], or which, ^nthout his wilful default, might have been received. (//) Godfrey v. Watson, 3 Atk. 517. (0 Ilolton'c. Lloyd, i:\rol.30. (ft) Hele V. Lord Bexley, 17 Bcav. 880 OCCUPATION RENT AGAINST MORTGAGEE. 1598. "Where a judgment creditor in possession has ob- tained assignments of several judgments, the rents are to be applied, first in discharge of the interest, and then of the principal of the judgment debt, in respect of which he took possession, and then in discharge of the principal and interest of the several judgments in succession, and not of the interest on all the judgments, before payment of the principal of any of them (/). 1599. An equitable mortgagee, by deposit, may have an account against the Crown of rents and profits received under an extent (?«) (967). The inquiry will be, who has received the rents and profits of the estate since the same was seized into the hands of her Majesty, under the writ of extent against A. B., and by what authority and to Avhat amount, and what has become thereof. 1 600. If it be sought to charge the mortgagee in posses- sion with an occupation rent it ought to appear (?«) on the bill, that he has been in actual possession of the whole, or some part of the estate ; the mere allegation of possession not being sufficient, unless it appear that he was in possession under a claim of absolute ownership ; in which case (o) an occupation rent is directed as of course. The direction will be prefaced by an inquiry (7;) as to the fact of occupation, and the occupation rent will be fixed according to the value which the estate Is proved to be worth ; but no rent will be charged during such timQ as the property from its ruinous state, or for any other reason, is incapable of making any return {q). 1601. Under the j^rayer for general relief, the plaintiff is entitled to an account of rents and profits received, though it be not specially asked, if the statements of the bill be suffi- cient to sustain such a prayer (r) ; but where more than one (Z) Skirrctt v. Athy, 1 Ba, & Be. 406. 430 ; sec Montgomery v. Donohoc, 5 {0) See Smart v. Hunt, 1 Vera. 418, Ir. Ch. K. 405 ; Kirl)y v. O'Shcc, 1 note. Jo. oG5. {p) Set. Dec. 225, ed. 2, 4C8, ed. 3. (»0 Casberd v. A.-G., Dan. 238 ; G (y) Marsliall r. Cave, 3 L. J. (Ch.) Pr. 411. -57. («) Trulock r. Kobcy, 1.5 Sim. 273 ; (r) Parker r. Alcock, Younge, 361 ; bcc in Fee v. CorUne, 11 Ir. E(i. K. Truluck /•. liobcy, 15 Sim. 2G5. MANNER OF CHARGING MORTGAGEE. 881 person has been in possession, and the plaintiff prays expressly for an account against the last of them only, especially if he state that the whole or almost all of the mortgage debt and interest has been discharged by rents received by him, some inference arises that against the other the account was meant to be waived. And it has been doubted {s) whether the prayer for general relief would give a right, in such a case, to an account against the person who was first in possession. 1602. After redemption, the mortgagor cannot recover from the estate of the deceased mortgagee, under the com- mon prayer in a creditor's suit, sums claimed in respect of the profits of the estate during the mortgagee's possession, even though at the date of the decree for redemption the mort- gagor was ignorant of the subject of the claim. The only remedy in such a case is to file a bill to correct the decree {t). Of the Manner of charging the Mortgagee in Possession and of the Allowances made to him. 1603, The account usually directed against the mortgagee in possession either of tangible property or of a business (m) is of what he has, or without wilful default might have, received from the time of his taking possession. This, it is said, is the only instance in which the court directs an account in this form without any special case made for the purpose {x). And the mortgagee will not be subjected to it, unless it be shown, not merely that he was in possession, but that he was so in the character of mortgagee. If he enter and receive the rents under an agreement of tenancy, or in the real or supposed character of purchaser, or otherAvise do not assume to receive them as mortgagee in possession, he will not be liable to this form of account {g). So Avhere a person got into possession under a forfeiture, (.<) Tmlock V. Robey, and sec id. Bouvcric, 7 De G., M. & G. l.'O; 1 283, note. Jur., N. S. 581. {t) Shoobridge r. Woods, S Jiu". 27. (y) Page v. Linwood, 4 CI. c^ Fin. («) Sec Cbapliu c. Young, 33 Bcav. 399 ; Paikinson v. Ilaubuiy. L. R., 2 330. II. L. App. 1, distinguishing Nccsom (,r) Per Turner, L. J., Kensington r. v. Clarkson, 2 Ilarc, 103. 882 ACCOUNT OF RENTS AGAINST MORTGAGEE. and not as mortgagee, and held without complaint or claim for several years, and was dealt mtli by persons who had acknowledged that their rights were gone, and had accepted his bounty ; the court refused to entertain a suit by such persons seeking to charge the possessor as mortgagee (z). The mortgagee is not usually required (a) to account for more than he has received, or according to the actual value of the land, unless it can be proved, that but for his gross default, mismanagement or fraud, he might have received more. Such may be evidenced by his refusal or removal of a suffi- cient tenant (i), who offered or paid a certain rent; his refusal, in combination with the tenant (c), to receive the rent, or to take out execution on a judgment in ejectment ; or his making an improper use of his security, by suffering the mortgagor himself to take the profits {d), to the prejudice of his other creditors, or, where he is bankrupt, of his assignee. But in these cases the proof must be distinct. The mort- gagor is not sufiered to bring in the mortgagee, and ask him how much rent he could have got, when in possession, nor to involve him in a minute inquiry (e), whether some person was ready, unknown to him, to have given more rent for the estate ; and the mortgagee may even be excused for refusing a higher offer from a sufficient person ; as if the tenant in possession be in arrear, and by removing him the arrear might have been lost. And it is the duty of the mortgagor, if he have the opportunity, to give notice to the mortgagee, that the estate can be made, and to assist him in making it, more productive ; which if he omit to do, and lie by, making no objection to the mortgagee's proceedings, he cannot afterwards charge him with mismanaixement. (2) Blennerhassctt 1;. Day, 2 Ba. & (r7) Chapman v. Tanner, 1 Vcni. 2G7; Be. 104-, 125. Coiipring r. Cooke, id. 2G9 ; and see 2 (a) Anon., 1 Vcm. 4.5 ; Hughes v, Sch. & Lcf. G06. Williams, 12 Ves. 493; Wraggr. Den- (6') Metcalf v. Camjiion, 1 Mol. ham, 2 Y. & C. 1 17. 238 ; Hughes v. Williams, 12 Vcs. (^b) Anon., 1 Vem. 45. 493 ; Brandon v. Brandon, 10 W. R. (c) Duke of Bucks v. Gayer, 1 Vern. 287. 2.-S. EXTENT OF ALLOWANCES TO MORTGAGEE. 883 1604. The mortgagee in possession accounts for rent, after the rate which has been reserved. But if fraud or wilful default be shown by the other party, it will be for the mortgagee to prove that no tenant offered, or could be had, with reasonable diligence. Any act to prevent the letting, to which the mortgagor was a party, will be an answer to the charge of wilful default (/). The pince at which the mortgagor proves the estate to have been let, whilst in the hands of the mortgagee, will be taken (fj) to be the rate at which it was let during the whole time of his possession, unless he show the contrary. 1606. Where a lease made by the mortgagor to the mort- gagee has been set aside (357), the mortgagee will not be charged with a higher rent than that reserved by the lease (h) if the circumstances were such that no higher rent could be obtained. And if a fair rent have been reserved on such a lease, the m.ortgagee will be charged (?) in account with the rent, as it became due, till the first day of payment after the filing of the plaintiff's bill, and from that time at a fair rent to be fixed by the court. 1606. The mortgagee will be allowed monies paid for the redemption of land tax (/t), and for the renewing of leases upon which the estate is held, though there be no covenant by the mortgagee to renew (/), as well as what he has ex- pended for the preservation of the estate, as for head rent, or in preserving the property from deterioration (m), or in sup- porting the mortgagor's title to the estate, where it has been impeached, or otherwise doing what is essential to protect the mortgagor's title (?<), or to make his own title good against (/) Trimlcston v. Hamill, 1 Ba. & (0 Woollcy v. Drag, 2 Anst. 551 ; Be. 385 ; Mctcalf v. Campion, 1 :Nrol. 5 Bac. Abr. 736 ; Manlovc r. Bale, 2 238. Vcm. 84 ; Lacon v. Mcrtins. 3 Atk. 4. (^) BlackJock v. Bai-ucs, Scl. Cli. But be cannot compel the mortgagor to Ca. 53. renew. (70 Gubbins v. Creed, 2 Sell. & Lef. (w) Burrowcs v. iMolloy, 2 Jo. & 214, Lat. 521 ; Brandon r. Brandon, 10 (i) Webb V. Korkc, 2 Scb. & Lef. W. K. 287. 661. («) Godfrey i. Watson, 3 Atk. 517; (Ji) Knowles v. Chapman, Set. Dec. Siuidon r. Hooper, 6 Beav. 24C. 226, cd. 2 ; 4 07, ed. 3. 884 .y^LOWANCE FOR INSURANCE. the mortgagor, at law or in equity, or in taking out adminis- tration to the morto-ao-or to secure himself, in case he Avere defeated at law (o). Money laid out in perfecting the mort- gagee's title, as in payment of the fines and fees upon admis- sion to copyholds, and the costs of procuring a (necessary) Act of Parliament will also be allowed to the mortgagee, and so will premiums due to an insurance office (being mort- gagees) Avhich the mortgagor has agreed but failed to pay(;?), and all such monies will be added to the principal debt, and like it will carry interest (1637, 1721). 1607. But money paid for insuring the mortgaged pro- perty against fire "will not be allowed, (except under the statu- tory provision hereafter noticed,) whether the mortgagee were in possession or not ; unless the insurance were effected and continued, in conformity with the provisions of the mortgage deed ; for the mortgagee is entitled, as between himself and the mortgagor, to make and have the benefit of any contract which does not affect the mortgaged property ; and not being liable to account to the mortgagor for the insurance money, he cannot without express contract charge the estate with the l^remiums {q). But by a modern statute, the person to whom any principal (o) Lomax v. Hide, 2 Vern. 185 ; 14 Jur. 288 ; Bellamy v. Brickenden, 2 Ramsden v. Langley, id. 530. But not Jo. & H. 137. Premiums disallowed costs of defending his title to the mort- against a puisne mortgagee. (Brooke v. gage against a third person. (Parker?;. Stone, 34 L. J., N. S. (Ch.) 250.) The Watkins, 2 Johns. 133.) premiums were allowed in the case first (;;) Earl Pitzwilliamt;. Price, 4 Jur., cited upon a subsequent occasion by N. S. 889, and sec Bro\vn v. Price, id. Knight Bruce, V. C. ; not, it appears, 882. But tlic premiums will be dis- upon any ground inconsistent with the allowed if the insurance be not actually pi-incijile stated above, but on the con- effected by the office. (Grey t'. Ellison, sidc)-ation that the insurances were 2 Jur., N. S. 511.) In the Court of Ad- clfeeted, so far as circumstances would miralty the rule as to charges for wages, permit, in accordance Avith the covc- towagc and pilotage is that neither the nants contained in the mortgages. owner nor the bond-holder will he al- (Dol)son v. Land, 4 De G. & S. 575.) In lowed them, unless the sanction of the Scholeficld v. Lockwood, the M.R.,not- court, which may be had without insti- withstanding these authorities, is said to tuting a suit, be first obtained. (The have allowed fire insurance premiums Janet Wilson, Swab. 201; The Cor- under " just allowances." The decree nelia Henriette, L. R., 1 Ad. 51 ; The was reversed on other points. (9 Jur,, Fair Haven, id. 67.) N. S. 738, 1258.) (//) Dobson V. Land, 8 Hare, 216 ; ^rORTGAGEE MUST ACT PROVIDENTLY. 885 money, secured or cliargcd by deed on any hereditaments, shall for the time being be payable, his executors, adminis- trators and assigns, are empoAvered (unless the power be nega- tived by express declaration in the security, and subject to any variations or limitations therein contained), at any time after any omission to pay any premium on any insurance, Avhich by the teims of the deed ought to be paid by the person en- titled to the property subject to the charge, to insure and keep insured from loss or damage by fire the whole or any part of the property, whether affixed to the freehold or not, which is in its nature insurable, and to add the premiums paid for any such insurance to the principal money secured, at the same rate of interest as if the power had been in terms conferred by the person creating the charge (r). If the mortgagor and mortgagee effect a joint insurance on the mortgaged estate, the mortgagee paying the premiums, and the premises being destroyed by fire, the mortgagor's assignees procure payment from the company, they will be ordered to pay it into court, though they have already paid it to the account in bankruptcy ; there being no right in one of the parties in respect of a joint security to apply the produce, irrespective of the claims of the other party (.?). 1608. So long as the equity of redemption remains with the mortgagor, he is bound to indemnify the estate against expenses incurred in protecting the title (t) ; and even where the equity has passed into the hands of an assignee, expenses so incurred, if the mortgagee remain passive, will not fall upon the estate (?^) ; though the mortgagee have been made a party, and the result is advantageous to him. 1609. The mortgagee in possession is bound to act as a provident owner, and he will be liable for wilful default if, being in possession under a mortgage of unfinished leasehold buildings, he neither sells the property nor completes the (r) 23 & 24 Vict. c. 145, ss. 11, 32 ; 557. and sec sect. 34, limiting the power to {t) Langton v. Laugton, IS Jur. transactions subsequent to the statute, 1002 ; riiene r. Gillan, o Hare, 1 . and to mortgages or charges to secure (u) Langton v. Langton, IS Jur. loans on existing or future debts. 1002 ; 1 id. N. S. 1078. (n) Rogers v. Grazebrook, 12 Sim. 886 MORTGAGEE IN POSSESSION OF MINES. buildings, whereby the leases are forfeited. But lie is not obliged to defend the possession of property which the exercise of a strict le^al rio;ht has thrown into his hands (s). He will not be charged with deterioration of the property, arising from ordinary decay by time, nor even from want of repair, which has caused a diminution in the annual value ; and it has been said that he ought not to be charged Avith the same degree of care, which a man is supposed to take who keeps possession of his own property. But he ought to do such repairs as he can pay for out of the rents received after his interest is paid(0; and if there be gross or wilful negli- gence, the mortgagee will be held responsible {u). He will therefore be liable for the loss occasioned by alterations, inju- rious to the value of the estate, such as the pulling down of cottages and the cutting of timber, being chargeable with the value thereof with interest {x) 1610. The mortgagee in possession, who without special authority opens mines or quarries, will be charged with his receipts, but will not be allowed the costs of severing the produce or other expenses; for he has no right to speculate at the mortgagor's expense, and the act is a sale of part of the inheritance (?/). But a mortgagee with an in- sufficient security may open new, or may Avork or lease aban- doned mines, and will be only liable to account for the profits or royalty, and not for the value of the ore raised or the («) Perry v. Walker, 1 Jur., N. S. to fall clown. (Batchclor v. Ikliddleton, 74G ; 3 Eq. R. 721, appealed on other G Hare, 7;').) No injunction against a points ; Cocks v. Grey, 1 Gif. 77 ; 3 mortgagee to stay waste committed by Jur., N. S. 1115, other persons, under an alleged custom (t) Richards v. Morgan, 4 Y. & C, and without his permission, the facts Appendix, 570. being shown, though the mortgagee («) Russel '6". Smithies, 1 Anst. 9G ; made no affidavit. (Anon., IL. J.,Ch. Seton, 398, ed. 3. 110. (i-) Sandon v. Hooper, C Beav. 24G ; ( ?/) Hughes v. Williams, 12 Vcs. 493; Gubbins V. Creed, 2 Sch. & Lcf. 214. Thorneycroft r. Crockett, IG Sim. 445, Iiiquhy whether dctei-ioration had arisen see Hood v. Easton, 2 Gif. 692 ; 2 from the gross negligence of the mort- Jur., N. S. 729, where mortgagee, with- gagces, from M-ant of pro]icr rejiairs and out authority to work mines, authorized want of cultivation. (Wragg v. Den- strangers to work them ; doubted on ham, 2 y, & C. 117.) Whether the appeal, 2 Jur., N. S. 917. See as to mortgagee, to the damage and injuiy brickmaking, Set. 398, ed. 3. of the mortgagor, allowed the buildings mortgagee's allowances for repairs. 887 damage caused to the surface (z). And if he be specially au- thorized to work the mines, he will be allowed the expenses incurred iu doing so, with interest {a). If the mortgagee come into possession of open mines, he cannot be called upon to speculate by working them, however likely it may be that the mines will be improved by a large expenditure (b). He is not bound to advance more tlian a prudent owner, and cannot be charged Avith mismanagement if he omit to do so. If there be reason to think that mines have been recklessly worked with a view to undue profit, so as to leave them unfit for further working without a great outlay, the court will direct an inquiry (r,-) as to the manner of working them, and as to their condition ; even it seems if no suggestion as to undue working be made by the bill. Under an inquiry whether the mortgagee has expended any and what sums of money in ne- cessary repairs and lasting improvements, it may be found that he has opened and worked mines (d) (1638). 1611. The mortgagee in possession need not rebuild ruinous premises, or increase his debt by laying out large sums beyond the rent (e). On the other hand, he Avill be allowed for proper and necessary repairs to the estate (/); and if buildings are incomplete or become ruinous, so as to be unfit for use, he may complete or pull them down and rebuild, as well in ordinary cases for the preservation of his security (^), as, where the tenure is copyhold, to prevent the lord from entering for the forfeiture (h). And the rebuilding or repair- ing may be done in an improved manner, and more substan- tially than before {i), so that the work be done providently, and that no ucav or expensive buildings be erected for pur- (r) IMillctt V. Davey, 9 Jur., N. S. (/) Godfrey ;•. Watson, 3 Atk. 518 ; 92 ; 31 Beav. 470 ; 32 L. J. (Ch.) Saudon v. Hooper, C Beav. 2-iC. 122. (u) Newman v. Baker, rinch, 38; (a) Norton r. Cooper, 25 L. J. (Ch.), .Marshall r. Cave, 3 L. J. (Ch.) 57. 121. For ionu of mcpury, sec Setou, 39G, (J) Rowc v. Wood, 2 J. & W. 555. cd. 3. (c) Mulhalleu i. Marum, 3 Dm. & (h) Hardy v. Reeves, 4 Ves. 46G. W. 317. (/) ^iai-shall r. Cave, supra. And (^Z) Thorneycroft v. Crockett, IG Sim. sec Jortin r. S. E. R. Company, 2 Sni. 445. & G., reversed on other points by H. of (e) Richards v. Morgan, supra; L., G IL L. C. 440 ; Moore r. Fainter, Moore v. Fainter, G Jur. 903. supra. 888 WHEN ALLOWED FOR BIPROYEMENTS. poses difFerent from those for which the former buildings were used ; for the property when restored ought to be of the same nature as when the mortgagee received it ; and if it be thus wholly, or in part, converted from its original purposes, the money expended will not be allowed to be charged upon it. This right of the mortgagee is founded upon the principle that the mortgagor, Avhose right is only equitable, must re])ay all that is equitably due ; and it does not necessarily belong to the owner of a mere rent-charge, who must make good at law his right to be repaid money laid out upon the land (o). 1612. It is also the duty of the mortgagee to inform the mortgagor, as soon as possible, of the necessity for incurring extraordinary expenses. And whenever the works done amount to improvements, though of a lasting kind, the mort- gagee in possession may hardly be said to be safe {p), unless he get the consent or acquiescence, on notice, or by approval of the accounts of the persons interested in the equity of redemption. It is clear (y) that he will not be alloAved for such improve- ments, made on his own authority, as are not necessary to preserve, though they may increase, the value of the estate ; for, if it were not so, a weapon Avould be put in the mort- gagee's hands with which he might greatly clog the right of redemption; which he has no right to make more expensive than is necessary to keep the estate in good repair, and to protect the title. But the objection to repairs and improve- ments should be raised on the pleadings (r). He may, however, be entitled to the value of improvements, which he has made under the belief that he was absolute owner (.9) ; and so may a person who has been in possession as owner {t), under a deed which is afterwards set aside for (0) Hooper v. Cooke, 20 Beav. G39. (/•) rowell v. Trotter, 1 Dr. & Sm. {]}) Trimleston v. Hamill, 1 B. & Be. 388 ; Moore v. Painter, 6 Jm-. 90.3. .385 ; Sandon r. Hooper, Beav. 24G. (.9) Thome r. Newman, Finch, 38. The Court of Bankruptcy will on peti- And see Swan v. Swan, 8 Price, 518, tion give leave to make improvements as to the right upon partition of a part- and to add the costs to the debt. (Ex owner who has improved, parte Smith, 3 Mont. & A. 63.) {t) Mulhallen r. Alarum, 3 Dru, & (^) Sandon v. Hooper, G Beav. 24C. War. 317. VALUE OF IMmOVEJIENTS. 889 fraud or held to be a contract for a redeemable Interest (zO- Where the tenant for life of lands subject to a mortgage, paid off the mortgage, and took an assignment, and improved the estate (:r), upon redemption he had no allowance for improve- ment before he took the assignment, being then in as a tenant for life : from the assignment he Avas allowed two-thirds of the value of lasting improvements, but not the other third, because he had the benefit during his life ; and no interest was alloAvcd during his life, because tenant for life must keep do^^-n the interest during his life. And a tenant for life who makes improvements at his own discretion, or with the consent of the trustees, is not generally entitled to have them out of the corpus (//). 1613. To entitle the mortgagee to an inquiry, as to money laid out in lasting improvements, he need not prove at the hearing what precise sums were so laid out ; yet no in- quiry Avill be granted on his bare allegation, without evidence that he has laid out money for the purpose (z). If a tenant for life make repairs, which are not of a nature to justify the expense of an inquiry, none will be directed, and the cost will not be charged upon the inheritance, though the tenant for life was not bound to make the repairs ; but it seems that it would be otherwise if the sum expended were very large, or a case of Avilful default were made out (a). Where a mortgagee of copyholds, having got into posses- sion by ejectment pending a foreclosure suit, made lasting improvements after the suit was set down for hearing, an inquiry as to the improvements was ordered after decree on petition (b). 1614. In estimating the value of improvements, where («) Fee r. Cobinc, 11 Ir. E(i. Fv. 40G. (.r) Newling v, AbI)ot, Vin. AI)r. Account (D. a), 8, p. 185 ; 2 Eq. Ca. Abr. 500. (y) Dixon r. Peacock, H DrcAV. 288. (.-) Sandon r. Hooper, G Bcav. 24G. It is, however, said to have been done in another case " at tlie rcciucst" of the mortgagees. (Johnson ?•. Bounie, 2 Y. M. VOL. IT. & C. C. C. 278.) Account of beneficial improvements, of expenses o£ planting trees and oi'chards, or so much thereof as are in good condition and of benefit to the plaintiff. (Gubbins r. Creed, 2 Sch. & Lef. 214.) («) Sharshftw v. Gibbs, Kay, 333 — 337. {h) Spurgeon ?•. Witliam, 21 Dec. 1855, yi K. ;? M 890 ALLOWANCES TO MORTGAGEE there has been rebuilding, it ■^vill be ordered (c), that the old buildings be valued as old materials only, if they were in- capable of repair ; otherwise as buildings standing. The words " all just allowances," in a decree, do not autho- rize (d) an alloAvance for improvements, but the decree must particularly mention them, which it never docs, unless there be laid before the court some evidence that improvements have been made. 1615. The mortgagee will of course be allowed the ex- penses of sales and of receiving the purchase-monies in accounting for such purchase-monies. And if he pay (e) the out-going tenant, even after the com- pletion of the accounts, for crops in the ground or other par- ticulars from which the mortgagor will receive benefit, the amount will be allowed him ; though the payments were made under an agreement or in pursuance of an arbitration not binding upon the mortgagor: an inquiry being directed, if necessary, as to the proper amount to be allowed ; and regard being had to the custom of the country. 1616. The cost of repairs to the mortgaged property, done by order of the mortgagee in possession, constitutes a debt payable by his executrix out of his general estate, and is not chargeable to the legatee of the mortgage debt (/). Of Alloioances to the Mortgagee. 1617. The mortgagee may agree with the mortgagor for the appointment of a receiver to be paid by the latter {g), or may appoint one under the statute (712). But neither the morto-ao;ee, nor his assignees or executors, nor a trustee for the mortgagor's creditors, can have any allowance for personal care or trouble in receiving the rents of the estate, notwith- standing an agreement with the mortgagor for that purpose ; even where before the existence of the present statutory power he might have appointed a receiver ; viz., where from the {c) Robinson v. Eidley, G Mad. 2. (/) Gil>bonr. Gibbon, 17 Jnr. 416 ; (d) Knowlcs V. Spcncc, Mos. 220 ; 13 C. B. 205. Morjjby v. Mcadc, 1 Jo. G20. ( g) Chambers r. Goldwin, 9 Vcs. (e) Oxcnham v. Ellis, IS Bcav. 271. FOR RECEIVER AND FOR COMMSSIOX. 891 nature of the property so much time and trouble •would be sacrificed by personal receipt of the rents, that a provident owner whose time was of value Avould probably have d<jne so (A). Nor will the mortgagee be allowed the commission for receiving rents which would have been payable under the contract to the mortgagor's receiver, if one had l^ecn ap- pointed (i). But the cost of a receiver would be allowed where the appointment was a provident act, although the mortgage were vested in a trustee for the mortgagee (/t), whose position was such that he might have received the rents himself without much trouble ; the equitable, and not the legal owner, being the person whose means of managing the estate are considered. 1618. A mortgagee executing his power of sale is so far in the position of a trustee, that he can have no commission for conducting the sale professionally, and the prohibition extends to the partnership of which he may be a member (Z). Auctioneers, therefore, can have no alloAvance upon selling for one of their firm, who is a mortgagee Avitli a power of sale. But persons in the position of mortgagees, who sell, or, it may be presumed, receive the profits of, or otherwise manage the mortgaged property, under the direction of the court, are not deprived (//i) of the remuneration to which they Avould ordinarily be entitled, because they are mortgagees of the same property. Therefore, whore shipbrokers, being also mortgagees, sold the ships which were the subject of the se- curity, although thoy were allowed no brokerage in respect of a ship sold by them under their power as mortgagees, or trustees for sale, yet as to sales made under the direction of the court, and not under their own title, thev were allowed the ordinary commission. (//) Bonithon v. Ilockmorc, 1 Vcm. (/•) Davis r. Demly, ^fad. 17(1 316 ; French r. Baron, 2 Atk. 120 ; (Z) Mathison v. Clarke, 3 Drew. 3 ; Godfrey v. "Watson, 3 id. olS ; Nichol- 18 .Tur. 1020. For the rule as it affects son V. Tutin, 3 K. & J. loO ; 3 .Tur., trustees in general, sec 1 Y. & C C. C. N. S. 23.->. 320 ; 1 Coll. 2G0 ; 2 Beav. 128 ; 8 id. (/) Stains v. Banks, d Jar., N. S. 593 ; 9 id. 388 ; 10 id. 523. 1049. C^'-U* i^i^ -xj^^-^v^v. oL-^ ^«t (,„) Arnold r. Gamer, 2 Ph. 2:11. 892 ALLOWANCE FOR COMMISSION And it seems that an agreement by the mortgagor of ships, to employ the mortgagees as brokers in such sales as shall be made under the security, at a rate exceeding the usual rate of brokerage, is valid (o)— an exception to the rule above stated, ^vhich is doubtless made in favour of the course and custom of trade. 1619. The mortgagees of West India estates, when out of possession, also stand in this matter upon a somewhat diffe- rent footing from ordinary mortgagees (204) : being allowed to stipulate for, and to charge (;?) commission upon consign- ments from and supplies to the estates, and to agree that the produce shall be consigned to them, so long as the debt re- mains (^). But the commission upon consignments made in the West Indies, and upon the money expended there for the use of the estate, is only allowed as compensation for the trouble of management, and requires personal attention to that duty. The mortgagee, however, will be allowed what he may have actually paid to others, whom he has entrusted with the management in his absence, provided such payments be reasonable : which may be the subject of inquiry (r). And even when he is in possession, the usual charges may be made on West India mortgages for commission upon the consignments, in cases in which duties and obligations beyond those of an ordinary mortgagee are cast upon the mortgagees, as where (s) they take upon themselves to provide for debts due from the mortgagor to third persons, and by the terms of the agreement they are to be in possession of the estate, and to manage it by their agents ; receiving however no commission for the management, in case the debtor should take it upon himself. But the first mortgagee of a West India estate will not be (o) Arnold v. Gamer, 2 Th. 231. sec Ogclcii v. Battams, 1 .Tur., N. S. 791. (^) Lcith V. Irvine, 1 My. & K. 277. (q) Bunbury v. Winter, 1 Jac. & W. That a managing agent in England, not 2oij. in the position of a trustee, may be en- {r) Cliambcrs v. Goldwin, 9 Ves. titled to commission or profit on mate- 254 ; Forrest ■??. Ehves, 2 Mcr. G8. rials snpplied, if he stipulate for it ; (.?) Bunbury v. Winter, 1 Jac. & W. but not where it is only provided that 255 ; Faulkner v. Daniel, 3 Ilarc, 218 ; he shall be allowed for "expenditure ;" Savers v. Whitfield, 1 Knap]), 133. ON WEST INDIA ESTATES. 893 appointed consignee, without a pi*c\ious stipulation for such an appointment, because his proper remedy is to take posses- sion of the estate (^), and being then subject to the same rules as other mortgagees in possession, he will not be entitled to allowances for management, or to conmiission on consign- ments (u). It has been doubted (x), whether the consignee of a West India estate can contract for consignments beyond as well as durincr the time in which the estate is indebted to him for advances. 1620. If a mortgagee in possession, whether in this or a foreign country, manage the mortgaged estate by his agent, he may charge for the agent's salary, though not for his own trouble ; and if at the time, and irrespective of his taking possession, he have already in his employ clerks or agents, by whom the business of the estate is transacted, he is equally entitled to rehnbursement in respect of the attention and tune bestowed by his servants upon this new business ; and the value of this right -will be fixed by apportioning the whole expense of the trading establishment among the whole of the concerns managed by it, allotting to each its rateable share of the cost. And upon this principle an inquiry has been directed (y), in the case of a AVest India mortgage, into the proportion which the consignments and supplies of the mort- gaged estate bore to the whole consignments and supplies under the mortgagee's management. 1621. The rules which prohibit or limit the making of payments or alloAvauces by the mortgagor to the mortgagee in possession do not altogether depend upon the laws concern- ing usury, and by the repeal of those laws (1689) they arc probably not affected (356). As a mere creditor out of pos- session, the mortgagee might even before the repeal of the usury laws take reward for managing the estate, provided it were not taken as the price of forbearing the demand of the debt. But upon taking possession, he becomes, not as he is (f) Cox V. Chanipncys, Jac. 57G. 255. 0() Lcith V. Irvine, 1 Myl. & K. (//) Lcith i. Irvine, 1 Mvl. .«^ K. 277, 277. (.r) Bimbury c. Winter, 1 Jac. & W. 894 WHEN RESTS DIRECTED. sometimes called a trustee (for that character does not belong to him in strictness until he is holding over after payment of his debt), but quasi owner of the estate, and being then in uncontrolled management Avithout any poAver of interference in the mortgagor, except some act be done Avhich calls for the interference of the court, or any security against overcharges, no alloAvances are made him either directly or indirectly in respect of his personal trouble {z). An improper allowance, in an account betAveen the mort- gagor and mortgagee, made to the latter in respect of payment for receiving rents, is a ground to surcharge and falsify («). Of taking the Account with Rests. 1623. The usual (i) mode of taking accounts against the mortgagee in possession, is to set the total amount of rents and profits received by, or found to be chargeable to, him against the whole amount due upon the mortgage debt ; viz., in discharge successively of the interest of the mortgage debt, and of money advanced for costs and improvements, and then of the principal of the same monies (c): but in certain cases in accounts of real estate (fZ), Avhere the receipts of the mortgagee (<?) are more than sufficient to cover the interest, the annual surj)lus Avill be considered as applicable in reduction of the principal money, Avhich is called taking the accounts ioith rests. 1 623. It is not of course to direct rests against the mort- gagee in possession (/), and although the facts that the in- terest has not been in arrear, and that the rents and profits (r) T^ith V. Irvine, 1 Myl. & K. 277; (e) Thorueycroft v. Crockett, 2 H. Robertson v. Norris, 1 Gif. 428. of L. C. 239. (a) Langstaffc v. Fcnwick, 10 Vcs. (/) Davis r. May, Coop. 23S ; 19 404. Vcs. 382 ; Donovan r. Fricker, Jac. (J) Pow. Mort. O-yS, a, cd. G, 1G5. Otherwise in Ireland, where rests (c) Webb V. llorke, 2 Sch. & Lef. are made half-yearly -without speeial CGI. direction ; but not at intermediate id) Robinson v. Cumuiiug, 2 Atk. ])eriods. (Graham r. Walker, lllr. Eq. 410. R. 415.) INTEREST IN ARREAR. 895 have exceeded tlie interest, are reasons for directing them to be made, they will not be directed on account of evciy trifling excess of interest (//). On the other hand, rests arc not usually directed, -where the interest was in arrear at the time of taking possession (h), and the liability to this mode of account does not, without special reason, attach to a mort- gagee Avho has taken possession when an arrear of interest was due, after that arrear has been paid off(z). As, where for ten years the mortgagee's receipts were less than his pay- ments, but exceeded them during the rest of his possession, though not to an amount sufficient to discharge the mortgage debt ; and the court refused to order rests against him (k). Because rests are not directed from a particular period of the account, when the arrear of interest only is discharged (Z). But from the time of payment of the principal they will be directed from a particular period {i7i). 1624. Nor is the fact, that an arrear of interest is or is not due at the time of taking possession, altogether decisive upon the question of rests, but the general right of a mort- gagee not to be paid piecemeal, as well as the circumstances of the particular case, will be considered (n). So that if the mortgagee have been driven by the acts of others to take possession, have been harassed by litigation, and thereby put to costs (even though the costs have afterwards been adjudged to be paid him by his opponent), and his own conduct have been free from harshness or vexation, or, if in the case of lease- holds, the security be endangered by nonpayment of ground rent or insurance, or through want of repairs, rests will not be directed against him, though as to other circumstances he might be within the general rule. Generally if a mortgagee be not liable to rests Avheu he ( /7) Shcpbard v. Elliot, 4 Mad. 254; Vcs. 382. Goiild V. Tancrcd, 2 Atk. 533 ; Schole- (m) Wilson v. Metcalfe, 1 Russ. 530; ficlil V. In^am, C. P. Cooper, 477. "Wilson r. Cliier, 3 Beav. 13(j. (/() Wilson V. Clucr, 3 Beav. 13G ; («) Ilorlock r. Smith, 1 Coll. 287 ; ]Moore i: Fainter, 6 Jur. 903. GouUl v. Tancred, 2 Atk. 534 ; and see (i) Finch V. Bro\\-n, 3 Beav. 70. id. 411 ; Fatch v. Wild, 30 Beav. 99, (A) Latter v. Dashwood, G yini. 4G2. observations of Turner, L. J., 3 Dc G., (0 Davis V. May, Coop. 238 ; 10 & J. 122. 896 RESTS AGAINST MORTGAGEE IN OCCUPATION. takes possession he will not become so until the principal as well as the interest of the morto-ao-e debt has been dis- charged (o). But if the mortgagee have taken possession, under circmnstances Avhich do not subject him to annual rests, and there is afterwards a settled account, by which it appears that no interest is due, or that if any be in fact due, it has been satisfied as interest, by being turned into principal ; and the mortgagee continues in receipt of rents more than sufh- cient to satisfy the interest of such principal, the settlement is considered as a rest made by the parties : and the mort- gagee will thenceforth be treated as a mortgagee who takes possession, Avith no interest in arrear, and will be subject {p) to annual rests {q). Where the mortgagee takes possession after bills have been indorsed to him for the arrears of interest, which bills become due and are dishonoured after possession taken, the interest is considered to be in arrear at the time of taking possession, and no rests will be made (r). 1 625. The mortgagee in occupation is as much within the principle upon which rests are directed, as he who merely receives the rents and profits, and the court can accordingly direct rests to be made {s) in taking accounts of occupation rents. But rests are not directed where the occupation is under an agreement for tenancy with the mortgagor (J). (o) Per Lord Langdale, SBcav. 140 ; ceding balance (1629), so as to charge Scholefield v. Lockwood, 32 Bcav. 439. the defendant witli compound interest (7;) Wilson?;. Cluer, 3 Bcav. 13G. thereon." (Gotham t'. West, Rolls, 15th ((/) Direction to make Bests — November, 183G, R. L.) " Take an account of what sliall be (r) Dobsou v. Land, 4 De G. & S. coming duo on account of rents and .')7u. profits, to be applied in the first ])lace in (.s) Wilson i\ Metcalfe, 1 Russ. 530. pajTTient of interest and principal, and Make annual rests in account of the make annual rests ; and in taking such rents received by, and on the occupation account make all just allowances." rent accrued due from, the late A. N. in (Yates r. Ilambly, 1 Mad. 14.) But the her lifetime ; and also on the rents re- following is more strict : — " Take an ceivcd by, and occupation rent accrued account, &c. ; and in taking the said due from, the said defendants, or any account, make annual rests of the clear of them, since the death of A. N. ; and balance, and comi)ute interest on such compute interest after the rate of il. per respective balances at 5Z. ])er cent. ; cent, upon sucli rents and occupation and in making such annual rests, ex- rents respectively. (Id.) cept the first, include in the balance {t) Page v, Linwood, 4 CI. & Fin. thca stated the interest of each pre- 399. DIRECTION OP llESTS BY DECUEE. 897 1626. "Where an incumbrancer denies his character as such, and sets up an adverse title, he will not be suffered to turn round, being defeated, and claim all the benefits at- tached to the character of a fair creditor ; but rests will be directed {u) against such an incumbrancer, where in an ordi- nary case none would have been directed according to the general principles of the court. 1627. Annual rests cannot be made in taking the accounts, unless they be directed by the decree {x), and where omitted they cannot be directed in chambers under 15 & 16 Vict. c. 86, s. 54, or under Cons. Gen. Ord. xxxv, rule 19 (y). And the court will not in this or other respects direct accounts to be taken in a different manner from those com- monly directed in redemption decrees, unless sufficient ground be raised in the pleadings, such as a suggestion that the rents and profits exceeded the interest; or unless some case be made for keeping the question open for future determina- tion (r). But if at a later stage of the cause it appear as the result of inquiries already directed, that the mortgage debt was paid off during the mortgagee's possession by means of the refits and profits, rests will be directed (a) from that time, though no foundation were laid for them, or direction given by a previous order. And this may be done, where, pending the proceedings under the decree, and prior to the report or certificate, the mortgagee for the first time becomes overpaid by the receipt of rents, though he will not be charged (i) Avith interest on the surplus received prior to the date of the re- port, but will be charged with the sums subsequently received, with interest thereon at four pounds per cent, from the times when they were received. A false statement by the mortgagee, in his answer, that tlic («) lucoi-porated Society v. Rich- 119. ai-ds, 1 Dru. & War. 258, 290. (:) Ncesom i-. Clarkson, i Ilarc, 97 ; (.r) Gould r. Taucrcd, 2 Atk. 533 ; Sdiolcficld r. Ingram, C. P. Cooper, Webber i'. Hunt, 1 Mud. 13 ; Fowler 477. V. Wightwick, cited there ; Donovau v. (a) Wilson v. Metcalfe, 1 Kuss. Frickcr, Jac. IGo. 530. ( y) Nelson r. Booth, 3 Dc G. & J. (^b) Lloyd v. Jones, 12 Sim. 490. 898 TAKING THE ACCOUNT WITH RESTS. mort2;ao-e remains unsatisfied, -will also be a reason for a sub- sequent direction to make rests (c). And if rests have been directed in a redemption suit, which, is afterwards abandoned, and a foreclosure suit commenced by the mortoao-ee, the accounts Avill be taken in the new suit on the footing of the former decree, up to the date thereof, and therefore with rests ; though there be no evidence in the new suit to warrant a decree with rests (d). 1628. It has been said, that the sums which a mortgagee in possession receives in respect of the mortgaged premises, at times between the dates of the annual rests, must be applied when they exceed the interest, to sink the principal (e). But this intimation was founded upon the usury laws, since the repeal of which it is presumed that no such rests will be made unless for particular reasons they are specially directed. 1629. Where the direction is to ascertain the balances in the hands of an accounting party, at the end of each year, and to compute interest thereon, at the end of each year, the terms of the decree will be satisfied (/) by calculating interest upon each balance of principal, for the year foUoAving that in which such balance is ascertained, and charging the party with the aggregate of the sums of interest, in addition to the ultimate balance of principal. But if the decree also direct annual rests, and that the party be charged with interest on the balances, at the rate and in the manner directed in respect of the former computation of interest, the interest calculated on the original balances, instead of being carried to a separate account, and being added together to form the ultimate ba- lance, must be added (//) from time to time to the balance of principal found due, and the future interest must be calculated on such joint balances of principal and interest (A). (c) Montgomery v. Calland, 14 Sim. (/) Ilcighington v. Grant, 5 Myl. & 79. In Quarrcll v. Bcckford, 1 Mad. C. 258. 209, simple interest only was asked for ({/) Id. ; Raphael r. Boclim, llVcs. and given. 1)2. (d) Morris v. Islip, 20 Bcav. 654. (k) Sec Yates v. Hambly, 1 Mad. 14; (c) Binnington v. Harvvood, T. & K, Gotham v. West, Eeg. Lib. supra. 477. OF CAUIIYING ON THE ACCOUNTS. 899 And if the decree direct (i), that Avhen and as often as the rents and profits exceed the interest of the mortgage debt, they are to be applied in reduction of the principal, the sums received by the mortgagee between the dates of the annual rests, calculated from the date of the mortgage deed, are to be applied whenever they exceed the interest, in reduction of the principal ; and the rest Avill thenceforth be calculated from the time of such excess. Of carrying on the Accounts. 1630, After the amount due has been ascertained and certified, the proper course for the mortgagee in possession appears to be to retain the possession, but to abstain from re- ceiving the profits ; for if the mortgagee vary the amount found due by the receipt of rent, or other monies on account of the estate, the accounts must be carried on and a new day fixed for redemption (A) (1798); and where the mortgagor insisted upon this right to carry on the accounts, the mort- gagee was not alloAved to verify by affidavit, and pay over the amount received after the taking of the accounts {).) ; though it has been said to be of course to make him account by affi- davit for subsequent receipts irii). The receipt of rent after default, and before the affidavit of default, does not make a further account necessary {ii). There is very little authority as to the proper course, when the mortgagee is in possession of property, the receipts from which are at frequent and irregular periods. In the case of tolls, after the first day fixed for payment, the plaintiff has been ordered to appropriate the net subsequent receipts in satisfaction of subsequent interest (o) ; and it seems doubtful whether the court would make any special order, until the variation of the balance found due makes it necessary to carry on the accounts. (i) Binnington v. Ilarwood, T. & TJ. S.'j. 477. (w) Oxcnliani i-. Ellis, 18 Bcav. (Ji) Garlick r. Jackson, 4 Bcav. 154; 51)3. Aldcn V. Foster, 5 id. 592; Ellis t-. («) Constable v. llowick, 5 Jur., Griffiths, 7 Bcav. 83. N. S. 331. (/) Buchanan r. Grccn^\ay, 12 Bcav. (") Gumcy i-. Duckett, Set. 405, cd. 3. 900 WHEN INTEREST IS PAYABLE. Chapter XII. Part 2.— Ol-^ Accounts of Interest. 1631. Of the Persons ivJio arc houtid to jfay and entitled to receive Interest. 1661. Of the Conversion of Interest in arrear into Prlncijjal. 1667. Of computing subsequent Interest. 1672. Of the night to set off Arrears of Interest. 1673. Of the Right to Arrears of Interest under the Statute of Limitations. 1683. Of the Pate of Interest. 1690. When Interest ceases. 1631. Interest is not payable upon a mere contract for lending money, even where the contract is under seal, unless there be an agreement express, or implied, for the payment of interest : and except in the case of mercantile securities, or where the promise to pay interest is to be inferred from the usage of trade («). Upon bond {h), and mortgage debts, interest is jiayable, though it be not expressly reserved, and whether the mort- gage be legal or equitable (c) ; but not where the contract expressly provides for reconveyance upon payment of the principal only (fZ). It has been doubted (e) whether a mere deposit of title deeds, without a legal security, will make a debt bear interest Avhich bears none in its nature ; but the anonymous case above cited seems to dispose of the question. And mere deposit of deeds, with intent to create a security, having clearly the effect of an equitable mortgage (42), with- out any express agreement, the right to interest as on a mort- sao-e debt is also implied: and so it has been held in the Court of Chancery in Ireland (/). A power to charge land with a sum of money carries power to charge it also "vvith interest {fj). (a) Calton v. Bragjj, 15 llast, 223 ; yM, and tlic course of interest then Iliggins V. Sargent, 2 B. & C. 348 ; ceases. (Vau Leeuweii, l)k. 4, cli. 7, Page V. Newman, [) P>. & C. 378. s. G.) (i) Farquhar v. Morris, 7 T. 11. (d) Thompson v. Drew, 20 Bear. 124. 49. (c) Anon., 4 Taunt. 87G ; Ashwell (e) Ashton v. Dalton, 2 Coll. 565. V. Staiiutoii, ."0 Beav. 52. JJy the (/) Carey v. Doyue, 5 Ir. Ch. E. Roman Dutch law when tlic arrears (jf 104. interest amount to more than the prin- (y) Kilmurry v, Geary, 2 Salk. 538. cipal, the remaining interest may not be WITEN INTEREi^T IS TAYABLE. 901 1632. A charge of debts by will, upon real estate, does not entitle simple contract creditors to interest, unless the debtor have given to the debts the (quality of specialties in his lifetime, as by making a schedule of debts and creating a trust terai for payment thereof (A). If the debtor execute a deed of trust for the benefit of his creditors, those who exe- cute the deed become mortgagees, and get a right to interest; but they have no such right under a mere covenant on the part of the debtor to pay the debt. If, by the terms of the deed, some of the creditors are to be paid their debts, and others are to be paid their debts with interest, the latter class have a priority as to interest (z). 1633. Where an award, made under an arbitration, di- rected the payment of a sum of money on given days, Avithout interest, out of the proceeds of securities not then realized, and a considerable time elapsed before the securities were realized, it was held, that although the money was awarded to be paid on certain days, so that interest might be recoverable from those days on the contract (/t), yet the proceeds of the securities could not on that account be made liable for interest, contrary to the agreement, though the debts in respect of which the award was made were debts bearing interest (Z). 1634. Interest arises on a mortgage from day to day (m) ; but it is said to be a rule of the Court of Chancery in Ireland, that it ought not to run, in the case of a general and national calamity, during such tune as, in consequence thereof, nothing is paid out of the laud assigned for payment of interest (yz). The person who takes the produce of the security is entitled to the interest to the time of his death, or other termination of his interest ; and the interest of money secured on mort- (Ji) Stewart V. Noble, Vera. & Scriv. 47-i ; 2 Ei}. Ca. Abr. Gil ; 4 Bro. P. C. 528—537 ; Banvell v. rarkcr, 2 Ves. 503 ; and accordingly ordered by the 304. House of Lords, that in taking the, (i) Jenkins v. Peny, 3 Y. & C. account such abatements or allowances ITS. were to be made for interest, as were (/;) Lowndes v. Collcns, 17 Ves. 27. usually made in Ireland, on account of (I) Collett V. Ncwnham, 1 Drew. rebellion or other public calamities, 447. hai)iiening' to affect estates in mort- (w) 'Wilson r. Ilarman, 2 Ves. 072. gage. (?i) Basil V. Achcson, 15 Vin. Abr. 902 WHEX INTEREST IS TAYABLE. gage has tbus been paid over to tlic administratrix of a tenant for life, though the mortgage money was subject to a trust to be applied in the purchase of land ; and it was not taken as rent unapportionablc before the act 4 & 5 Will. 4, c. 22, s. 2 (o). 1685. The agreement to pay interest up to a certain time does not even at law exclude a contract to pay it after that time; the reservation of interest shows that the debt was in- tended to bear interest, and makes it reasonable to suppose that it should continue to do so. So Avhere in a mortgage, dated in February, 1834, from B. to A., it was recited, that to induce A. to make the advance, C. had agreed to covenant for the due payment of interest, and B. covenanted to pay the principal and interest in February, 1835, and C. covenanted that B. & C, or one of them, during the continuance of the security, would j^ay the interest to become due by even half- yearly payments; C.'s covenant was held to extend to the interest, so long as the principal remained unpaid (p). 1636. The mortgagee in possession, who holds over after payment of everything due to him, will be charged with sub- sequent receipts and interest from the filing of the bill, or from the date of a prior notice, to pay over his receipts as di- rected by the notice, or even from the time of payment, if he falsely deny by his answer that the mortgage is satisfied ; and a mortgagee who has not been in possession is liable to pay interest on a balance found to be due from him if he impro- perly resist redemption (rj). If the mortgagor come to the court to restrain the mort- gagee from using his remedy at laAV, the indulgence will only be granted upon payment to the mortgagee of the principal sum and all interest which appears to be due to the time of payment ; but in a proper case the payment of interest may be ordered to be made without prejudice to any question in the cause ; as if the mortgagor contend that he was prevented (o) Edwards v. Warwick, 2 P. W. Greenhill, C M. & G. 50. 171. (q) Smith V. Tilkington, 1 Dc G., F. (2') Price V. Great "Western Railway & J. 120. Company, IC M. & W. 244 ; King v. WHEN INTEREST IS PAYABLE. 903 from redeeming at the time for which notice was given, Ijy the negligence or default of the mortgagee. And if such a case be established, the surplus interest may be ordered to be repaid (r). If a scrivener take money and give a note to place it out at interest, he is bound to do so and is answerable for the in- terest, except so far as the employer may have accepted any security which he may have effected {s). 1637. The court allows the mortgagee interest in certain cases upon money which he has laid out for the benefit of the estate or the support of his security (1606), payments so made being treated as further advances, and the rate is gene- rally that which is payable on the original loan. Thus, interest will be allowed upon fines paid by the mortgagee for the re- newal of leases upon which the estate is held, though there be no covenant by the mortgagor for renewal (t) upon pre- miums on life policies, which form part of the security (ii) upon money laid out in supporting the mortgagor's title where it has been impeached (x), or in the redemption of land tax (i/) ; and generally upon money laid out in lasting improvements or otherwise for the benefit of the estate, Avhere the principal so laid out is allowed (rr). And interest has been given upon premiums paid for keeping up life policies, to which the secu- rity was made subject, under a provision charging the security with payment of all such sums as a surety should be compelled to pay, with interest thereon (a) ; but interest Avas not given under that provision upon costs paid by the surety ; though it will be directed upon costs also, where they have been paid under an order of the court which declared the person paying them to be entitled to an indemnity for so doing (b), as well - (;■) Lord Midlcton r. Eliot, lo Sim. ( y) Knowlcs v. Chapman, Set. Dec. 531. 22G, ctl. 2. (s) Bai-wcll V. rarkcr, 2 Ves. 3C4. (2) QuaiTcll r. Beckford, 1 ^fad. (0 5Bac.Abi-.73G ; Maidovc c. Bale, 281 ; Webb r. Rorkc, 2 Sdi. c<c Lcf. 2 Vein. 84 ; Lacon v. JSIertins, 3 Atk. 070. 4; "Woolleyr. Drag, 2 Anst. 551. (a) Hodgson v. Hodgson, 2 Keen, (?/) Bellamy v. Brickcnden, 2 Jo. & 701. n. 137. (b) AVainman v. Bowkcr, 8 Beav. (j-) Godfrey v. Watson, 3 Atk. 518. 303. 904 WHEN IXTEREST IS ALLOWED. as upon interest whicli the owner of an incumbered estate has been compelled to pay, Avliere the former owner has cove- nanted to indemnify him against such incumbrances (c). 1638. Interest has also been alloAved upon large sums ex- pended by the mortgagee in the working of mines, where he was authorized by the deed to work them and was to be repaid all costs and expenses with interest (1610). 1639. It is not the practice generally to allow interest upon money expended by the mortgagee in repairs, although it has sometimes been done {d). 1640. A mortgagee will be allowed no interest upon a debt which would have been satisfied but for his wrongful or inequitable act, during such time as the debt has thereby remained unsatisfied. Thus (e), where a vendor who had become liable to an action by the purchaser upon a cove- nant for quiet enjoyment, delayed the purchaser's action, by setting up an acknowledgment, improperly obtained from the mortgagee of the latter (whose mortgage he paid off), that the payment was in full of all demands in respect of the cove- nant ; interest on the mortgage debt was refused during the delay of the action, because the damages recovered at law would, but for the delay, have swept away the mortgage debt, so that the interest could never have accrued. 1641. A prior incumbrancer Is not by mere laches in enforcing payment of his interest, deprived of his right to that interest as against the jraisnc incumbrancer, the latter being not without remedy (/) ; because he may redeem (539), and get the estate himself. And this, it is said, even though he let the interest run in arrear with an ill intent, to get the estate itself; but if there be fraud or collusion it will be otherwise (^). The doctrine must be taken to imply, that the puisne incumbrancer knows that the interest is running in arrear, for otlierwisc he would have no warning to exercise his right of redemption. (c) Executors of Fergus v. Gore, 1 (/) Aston v. Aston, 1 Ves. 263. Sch. & Lef. 107. ( //) Bentliam v. Haincourt, Pre. (J) Set. 384, ed. 3. Ch. 30 ; Chapman v. Tanner, 1 Vcrn. (e) Thornton v. Court, 3 Dc G., M. L'G7. & G. 293. f.r \r.ir,iTY of tkxant ix taii. DO.' So, tlie negleol, Avitliout iVaml, oi' tlio incumbrancer to demand interest from the tennnt lor life, or to require him to pay head rents, will not [)rejudice the right against the re- mainderman (/<). 1642. The adult tenant iu tail of an incumbered estate is not obliged to keep down the interest ou the charge ; be- cause, having or being able by his own act to acquire full power over the estate, neither the issue in tail nor the re- mainderman have any equity to call for an indemnity against the arrears of interest accrued during the possession of their predecessor (z). And on the other hand, if the tenant in tail die witiiout barring the entail, after keeping down the interest, or taking an assignment of the mortgage (in which case he is considered to have paid himself the interest out of the rents and profits), the issue in tail have the benefit, and the personal representatives of the tenant iu tail have no equity to charge the re^'ersion with intciiest accrued during his life (/c). And so it is if the husband of tenant in tail seised in rio;ht of his wife, take iu the mort2;ao;e, for he takes subject to all the rights and remedies of the mort- gagee and the reversioner, and, after receiving the rents during the wife's life, cannot come against the estate for the interest (Z) (1416). But iu such a case, an account will be directed of the profits accrued since the death of the wife, and subsequent interest will be allowed. 1643. An infant tenant iu tail, however, being unable to make the estate his o\a\, is not upon the same footing as an adult, but is in the position of a tenant for life (?«) (1647, 1813), (li) Loftus r. Swift, 2 Scli. & Lef. G42 ; Roe v. Pogson, 2 Mad. 457 ; Wiixon V. Vizc, 2 Dru. & War. 203 ; Hill V. Browne, Dm. 42G. (/) Chaplin v. Chaplin, 3 Atk. 234 ; Burgcs r. ^lawhcy, T. & li. 1G7 ; Monntcaslicll v. Oxenfonl, Ir. Ch., 28 Jan. 1804. (/') Amcsbnry v. Bro\ni, 1 Vcs. 477. (/") Aniesbnrv v. Brown, snjn-a. M. VOL. II. (;«) Sarjeson ?•. Cruise, cited 1 Ves. 477, 480 ; S. C. Sargeson r. Scaly. 2 Atk. 412, and T. & B. 17G ; per Lord Rcdcsdale, 1 Bli. 499 ; Burgcs r. Maw- l)cy, T. & E. 177. But note that Sir T. Plmuor, il. E., puts a -vn-ong c n- struction upon the words of Sir "W. Grant, M. E., in Bertie v. Lord Abing- don, 3 ^Icr. i"56t!. The latter is supposed to have said that " there could be no ques- tion as to the obligation of an infant 3 X 906 LIABILITY OF TENANT FOR LIFE. who is bound («) (as is also the tenant for years (o)) to keep down the interest of the charge during the continuance of his estate, to the extent of the rents and profits ; and who is not exempted from this liability by the possession of an absolute power of appointment, by virtue whereof he is able, like the tenant in tail, to make the estate his own (p) ; and who can- not discharge himself from it by ])rocuring the mortgage to be assigned to a trustee for himself (5-). The assignee and judo-ment creditor of the tenant for life arc subject to the same equity (/•). It is incumbent on the reversioner, to see that this duty is performed by the tenant for life (5) ; and if it be neg- lected, the reversioner (i^), or it seems the next tenant for life {u), may file his bill to make the rents amenable, and may compel the tenant for life to answer what has accrued. But if the reversioner stand by, and alloAV the rents to be received, and not applied in payment of interest, the rever- sion will be charged, and the reversioner cannot afterwards establish a debt against the assets, on the ground that the rents were sufficient (.r). The reversion may also be charged, if the rents be in- pufiicient, and the arrears of interest have thus been thrown upon the reversion, Avhcrej having accrued during the time tenant in tail to keep down the interest." His words really were, " There can he no question /« this case with respect to the obligation, &c." i.e. the question docs not arise here. For the question was between real and personal represen- tatives, between ^vhom there is no equity, but only between the represen- tatives and those in remainder. {n) Revel v. Watkinson, 1 Vcs. 0.'] ; Amesbury v. Bro\ni, id. 477 ; Faulkner V. Daniel, 3 Hare, 199 ; Bulwer v. Ast- Icy, 1 Ph. 422 ; Playfair v. Cooper, 17 Beav, 187; and sec T, & R. 174 ; 1 Jur., N. S. o80. (o) 1 Ves. 480. {]>) Whitbroad v. Smith, Z Do G., M. & G. 741. {q) Long V. Harris, 1 Jur., N. S. 913. (r) Scholeficld v. Lockwood, 9 Jur,, N. S. 12.-j8. (.s) 2 Jo. & Lat. IGO ; l^j, 339. (/) 5 Ves. lOG ; and see Hayes v, Hayes, 1 Ch. Ca. 223 ; Coote, Mort. 438. Sec per Lord Cam]5bell, C., 7 H. L. C. 57u. But per Lord Westbury, C, in Scholefield v. Lockwood, supra. " A tenant for life has all his lifetime to pay off the arrears of interest, and he can- not be charged \\ith neglect of dut}', neither docs any right arise to the re- mainderman until death or insolvency of the tenant for life." There seems to lie no other authority for this view oC the law. (?/) Revel V. "Watkinson, 1 Vcs. 0.']. (ic) 19 Beav. o\. Per Lord Romilly. LIABILITY OF TENANT FOR LIFE. 907 of one Icnaiii ibr life, they wei-e dischar^etl by llio trii.stce.s of :i subsequent life estate (/y). And Avherc tlie tenant lor life of an incumbered estate cliarged the estate luider a power, with a principal sum and interest, and then mortgaged both the charge and the interest, and kept down so much of the interest as the estate would not pay, out of his own monies, without informing the re- maindeniian of the insufficiency, or of the intention to charge it on the estate, it was held that there was no charge and that the payments showed an intention to exonerate (r). 1644. If a mortgagee, who has suffered the interest to run in arrear, purchase the estate of the tenant for life, the surplus rents received after the purchase, beyond the current interest of the mortgage, must be applied in discharge of the arrears ; and the mortgagee cannot charge the arrears upon the inheritance («): for the vendor under whom he claims was bound to keep down the interest. 1646. If an estate have been partly in the possession of a tenant for life, and jjartly of a person who takes under the limitations of a prior settlement (as a jointress), and there- fore is not bound to pay the interest on the incumbrances, the tenant for life must discharge the arrears, which accrued in the time of the paramount estate, out of the additional rents received at its expiration (Z»). The case of Tracy v. iMcbj Hereford has been stated (c) by an eminent judge to establish the general proposition, that a tenant for life in remainder must bear the arrears of in- terest which accrued during the estate of a prior tenant for life : but this construction has been repudiated as inequitable and unnecessary for the determination of the case in Avhich it (y) Sharshaw v. Gibbs, Kay, 333. («) Lord Pcnrhra v. Huylics, 5 Vcs. (r) Lord Kensington v. Bouverie, 7 00. So as to a purchaser who actually IL L. C. 557, and G Jur., N. S. 105 ; pays off the arreai-s. (Whitbrcad ;•. diss. Lords Cranworth and Wcnsleyd.nle, Smith, 3 Dc G., M. & G. 741 : and sec who agreed ^\^th the judgments of the Kuscombe ;*. Hare, 2 BL, N. S. 192.) L.J.I., holding that the silent pay- (&) Eevel v. "Watkinson, 1 Ves. 93 ; ments of the tenant for life did not Tracy v. Lady Hereford, 2 Bre. C. C. show an intention to exonerate ; see 7 128. De G., yi. & G. 134, and 19 Bcav. 39. (.•) .'. Yes. 106. 3x2 908 LIABILITY OF TENANT FOR LIFE was laid down (rf). Tlio rule goes no f\ivthcv than to make each tenant for life bear the arrears which have accrued during his own time, although during part of the time another may have been in possession of part of the estate under a paramount title (e) ; and to liquidate such arrears he must furnish all the rents if necessary during the whole of his life ; but subject, it seems, to this equity (/), \iz., that if the settlor of the estate be to the tenant for life in loco parentis, and the tenant for life not otherwise provided for, a reason- able maintenance shall be allowed him out of the rents and jn'ofits. 1646. And Avhere the incumbrances on the estate consist of annuities, the measure of the tenant for life's liability is the value of the annuity, which the decree will direct to be ascertained : and the interest of the estimated amount will be kept down by the tenant for life (^). And so the tenant for life, during whose time an annuity prior to his estate has run in arrear, will not be ordered to pay the arrears, but only so much as, during the continuance of his life estate, will keep down the interest of the charge, which those arrears constitute upon the corpus of the estate (A). If arrears of rent, which, in the vicAV of a court of equity, are specifically applicable to the payment of interest, be re- ceived by the tenant for life, he cannot retain them when the interest is in arrear, though they all accrued in his own time ; especially if he were jiarty to a transaction in which those rents were assumed to have been applied in payment of the interest (z). 1 647. With respect to the infant tenant in tail, there is an apparent disagreement from tlic general authorities (1643) (rZ) Sec 2 Jo. & Lat. IGO ; Kay, tenant for life, which tends to show 339. tliat he was then considered liable for (t-) Id. and Tracy v. Lady Hereford, the an-ears. supra. ( ^y) Bulwcr v. Astley, 1 Ph. 423. (/) Revel y.WatkinHon, IVcs. 193; (A) Playfair v. Cooper, 17Beav. Butler'.s case cited there ; T. & R. 194. 1«7. Note, however, that in Itevcl v. Wat- (J) Caulfield ii.Magnire, 2 Jo. & Lat. kinson the hill was by a subsequent 141. AND OF TENANT BY CURTESY. 909 in an early case {It), in Avhicli the court refused to order the executors of an infant tenant in tail to pay the arrears of interest out the infant's personal estate ; and the observations (jf the court, as reported in Peere "Williams, tend to show that the decision was upon the general ground, that the tenant in tail is not bound to keep down the interest. It has however been suggested (/), that the real ground was not that the in- fant was not liable to keep down the interest, but that it ought not to be paid out of his personal estate ; for, per Lord Ilard- wicke (/«), the rents and profits were the fund out of which the guardian should have paid the interest. And so it was held in the case oi Burges v. Mawbey {ii). The like rule no doubt applies to the infant tenant for life. 1648. Where the estates of the husband and wife were mortgaged to secure the husband's debt, and payment was en- forced out of the produce of the wife's estate ; it was held, that the representatives of the wife should have no interest on the sums, which the husband's estate had thus become liable to recoup to them ; and consequently that a judgment creditor of the wife, claiming against the husband's estate upon the foundation of this equity, could have no interest upon the debt which he recovered (o). The husband and wife are not bound to keep doAvn the interest of a mortgage on the wife's estate for the benefit of her heir ; though for what he may have actually paid in respect of such interest, he will have no allowance. And as tenant by the curtesy (1643), he must keep down after his Avife's death, the interest on the original debt, and on the arrears which have accrued during her lifc(70. 1 649. The order of the court, directing a receiver to kcc]) down the interest of incumbrances, does not amount to an ap- propriation of the rents and profits to that purpose, so a5 to {!{) Chaplin t>. Chaplin, 8 P. Wms. (o) Lancaster v. Evoi-s, 10 Bear. 229. 266, 154. (/) Per Sir T. Plumer, T. & l\. 177. {p) Pvuscombc i-. Ilaic, 2 BU., In. S. (;») In Serjcson v. Scaler, cited id. 192. 00 T. & K. 107, 178. 910 WHEN INTEREST ALLOWED make the rights of the parties where the interest has not been paid or applied for, the same as if interest had been actually paid iq). The order is partly made in justice to the incum- brancers, partly for the benefit of the estate, lest the incum- brancers should proceed in respect of their unpaid interest ; but if they do not apply for it, they are presumed to be con- tent with their security for principal and interest, and the estate remains burthened with the arrears, for Avhich there is no equity against the surplus rents paid over by the receiver. 1660. A mortscasee who comes to the Court of Bank- ruptcy for the realization of his security, is not entitled by the practice of that court to interest upon his debt after the date of the fiat, until there is a surplus (r) ; but under peculiar circumstances, as Avhere the mortgagee at the request of the assignees has postponed the sale for the purpose of getting a better market, or has made some other special agreement with them, interest after the bankruptcy will be allowed {s). Of Payment of Interest on Arrears of Annuities, and on Bond and Judgment Debts. 1651. As a general rule, interest is not allowed upon ar- rears of an annuity, though it be charged upon land, but under special circumstances only. It was held by Lord Hard- wicke, that if the annuity were given for maintenance, or there were a penalty for securing the payment of it, interest should be given on the arrears [t). But the rale as to mainte- nance has not been followed (^<) ; and it has been long held, that the security of a bond and penalty raises no equity for interest on the arrears, because no interest was recoverable at law on a judgment debt, though damages were given in the (/?) Bertie t). Lord Abingdon, 3Mer. {t) Newman v. Auling, 3 Atk. 579 ; 560. see also Ferrers v. Ferrers, Ca. t. (r) Ex parte Badger, 4 Ves. IG." ; Tall). 2. Ex parte Kensington, 2 M. & A. 300; («) Tew v. Earl of Winterton, 1 Ex parte Lubbock, 9 Jur., N. S. 854. Ves. jun. 450; Creuze j;. Hunter, 2 (.?) Ex parte Kensington, supra. Sec id. 157 ; and sec Mcllish v, IMcllish, 1 1 the principle of this rule discussed in Ves. 51G. Griffith, Bankruptcy, Gil. ON AltllEARS OF ANNUITIES. 01 1 nature of interest (.r). And the disinclination to give interest has gone so far, that the court has even refused it Avhen the annuity had been enjoyed for many years, and the assignee had been deprived of possession by the act of the court ; and this, although the fund out of which it was payable was pro- ductive, and the interest of it actually went into the pocket of the o"\\Tier of that fund (y). But this seems to have been an extreme case ; and though mere legal delay be no ground for giving interest, either on an annuity or a judgment (z), yet it seems clear at the present day, that if the annuitant had the means of recovering his annuity at law, but was re- strained from doing so at the instance of the person liable to pay the annuity; or if the latter come for the help of the court against the hardship to which he Avould be exposed at law, the court will give interest on the arrears, on the prin- ciple of restoring the annuitant to the position he Avould have been in if the court had not interfered (a). And if the person liable to pay the annuity had grossly misconducted himself, in evading payment of the annuity (i), or in disputing its exist- ence on unjust grounds, as by setting up the destruction of a bond after admitting that it was caused by an accident (c), or have otherwise, by his conduct or absence, delayed the pro- ceedings of the creditor, interest will be given : especially if the person liable to the payment were a party to the creation of the obligation (rr). Interest has been given on the aQ;o;rco;atc amount of arrears due at the death of the surviving grantor of an annuity, the l"und having been accumulating for many years in court, and there having been no person for a long time after the death of the surviving grantor who could have been sued on the judgment (e). "O O' (.r) Booth t-. Lcyccstcr, 3 ^ry. & C. Tiiylor v. Taylor, 8 Hare, \20. 459; Gaunt v. Taylor, 3 My. &: K. (/;)Mavtyn i-. Blake, 3 D. .'c W. 302. V>o. (»/) Per Sir J. Leach, cited 3 D. & (c) Crosse v. BcdingticUl. 12 Sim. W. 138. 3o ; and sec 10 Hare, ]3(;. {z) jMartyu t. Blake, ;! D. & W. iL'."; {d) Booth i'. Lcycestcr, 3 ^fyl. & C. Berrington v. Evans, Youngc, 1'7G ; 450. Earl Mansfield t-. Ogle, 4 Do Ci. & J. 38. (<•) Hyde v. Price, 8 Siui. o't^. But {ii) Booth. r. Leyccstcr, 1 Keen, 247: this decision i;: not a strong ouc. It 912 WHEN INTEREST ALLOWED ■♦ 1652. To avoid circuity of action the court will also give interest where there Avould be a clear case for damages at law, under a covenant for payment of the annuity, and it is clear that the measure of damages would be the amount of the ar- rears with interest thereon (/) ; as if there be a covenant to indemnify the annuitant against prior incumbrances, by the claims of the owners of which, the perception of the annuity was prevented, especially if this have occurred in consequence of the acts of the covenantor. But such a case will not arise on a mere covenant to pay the annuity, with a clause enabling the annuitant to enter and hold until payment {g) of the an- nuity, and of such costs, losses, damages and expenses, as shall be occasioned by non-payment thereof; for such expressions only amount to an indemnity against the costs incident to entry and possession, and loss from enforcing the security. 1653. Although as a general rule, the court refuses interest on arrears, yet, if the annuitant have entered into possession, he will not be obliged to quit possession unless tlie grantor will allow him interest ; but he cannot have this relief on the ground that there was a poAver in the grantee to enter, if he did not do so. The grantee must first avail himself of his remedy, and then seek the consequent relief (A). Nor will it be assumed (z), in favour of the claim for interest, that the annuitant would have used his legal remedies, but for the presence of a receiver appointed by the court ; nor admitted, that by reason of the receiver's appointment, the annuitant is to be considered as having been restrained from using his re- medies. And the annuitant will not even have the benefit of an accidental union in himself, of the right to the annuity, and the title to the term Ijy which it is secured, where there is a contest respecting the annuity ; on tlie ground that the an- was pronounced before judgment was C. 153. given on the appeal in Booth v. Lej'- ( g) Booth r. Leyecstcr, 8 ]\I. & C. cestcr, 3 M. & C. 4j'J ; see Jenkins v. 459. Briant, IG Sun. 272 ; and sec 10 Ilare, (/c) Eobinson v. Cmnming, 2 Atk. 135. 409 ; Booth v. Leyecstcr, 3 My. & C. (/) Martyn r. Blake, 3 D. & W. 459. 123 ; see also Gay r. Cox, 1 Kidg. 1'. (z) Taylor v. Taylor, 8 Haic, 120. ON ARREARS OF ANNUITIES. 913 nuitaut may not, as a trustee of the annuity, use lor liis own benefit a power thus accidentally acquired. 1664. Although interest will be given where the arrear has been caused by the act of the party liable for the pay- ment, in taking away the legal right of the annuitant, it is different Avhere there is a substantial dispute as to the an- nuity, in consequence of which the money has been brought into court for the benefit of all parties (A). AVhere the fund in court has been invested, application should be made to the court to set aside and keep distinct a part of the fund or in- come required for satisfaction of the annuity; and if this be omitted and the accumulations be carried to a general account, the profit produced by a part of the fund will not be separated for the benefit of the annuitants. This application, it seems, should be made immediately after the title to the annuity has been established (Z). 1655. It is provided by Consolidated Order xlii. r. 10, that a creditor, whose debt does not carry interest and who shall establish it before the master, under a decree or order in a suit, shall be entitled to interest at the rate of £4 per cent. per annum from the date of the decree, out of any assets which may remain, after satisfying the costs of the suit, the debts established, and the interest of such debts as by law carry in- terest. This order, which does not apply to debts established prior to the date of its issue (m), makes no alteration, it seems, in the general rule concerning interest on arrears; it does not mean that all debts, whenever due, are to bear interest from the date of the decree, but that debts proved after the decree shall bear interest from the time Avhen they are proved ; and it has been held in an administration suit, that, after payment of the debts due from the testator, the assets might be made liable to interest upon arrears of an annuity, at the respective times of their becoming due after the date of the decree (?i). Nor is the practice of the Court of Chancery in this matter (/.■) Taylor r. Taylor, supra. S. 1;10. (I) Booth r. Leyccstcr, 3 ^ly. & C. («) Lainson v. Lainson, 17 Jiu. i59. 1044 ; 18 Bcav. 7. (;«) Gallard c. Watsuii, -i Dc G. & 914 WHEN INTEREST ALLOWED ON affected at all by 3 & 4 AVill. 4, c. 42, s. 28 (1833), which gives to juries, at the trial of an issue or inquisition of damages, poAver to allow interest to creditors upon debts or sums cer- tain; nor by 1 & 2 Vict. c. 110, ss. 17, 18, which gives in- terest on judgment debts (o) (1659). 1666. Bond debts generally carry no interest, either at law or in equity, beyond the amount of the penalty, which is taken to represent by the agreement of the parties the nltimate amount of the debt. But the conduct of the obligor, the interference of the court, and other special cir- cumstances, make in this case also exceptions to the general rule {p). And if there be a bond and a mortgage to secure the same sum, with all interest that may grow due thereon, interest Avill be carried under the mortgage beyond the penalty of the bond ; for the amount of the penalty is not to prejudice the mortgage {q). And it matters not whether the mortgage precede or follow the bond. Interest will also be given in such a case where the mortgagor is a surety, as the creditor may make the mortgage as available as if it Avere given by the principal debtor. But a trust for payment out of the proceeds of real estate, of bond debts, together with the interest due and to grow due for the same, to the day of payment, will not (r) carry interest beyond the penalties of the bonds ; for, as interest does not grow due beyond the penalties, by virtue of the rule under consideration, the trust Avill be satisfied by payment of interest to the amount of the penalties. 1667. It has been said (a-), that if the bond be tacked to another security, as to the mortgage for securing other sums, the mortgagor may not redeem unless lie will pay the interest which is above the penalty. This is doubted by Mr. Powell (#), (o) Kc Powell's Trust, 10 Hare, 134; (//) Clarke v. Lord Abingdon, 17 Earl Mansfield v. Ogle, 4 Dc G. & J. Ves. lOG. 38. ('/•) Hughes V. Wynne, 1 My. & K (?;) Tew V. Earl of Winterton, ?, 20; Clowes r. Waters, 10 Jur. C32. Bro. C. C. 489 ; Mackwortli v. Thomas, («) Peers v. Baldwin, 2 Eq. Ca. Abr u Ves. 329 ; Clarke v. Scton, Ves. Gil. 411 ; Atkinson r. Atkinson, 1 B. i*^ 15c. (/) Pow. Mort. 305, cd. G. 239. BOND AND JUDGMENT DEBTS. i)l3 because tacking Is only to avoid circuity ol' action (1219), but it is supported by Mr. Coventry (z^) on the ground, that the excess of interest may be tacked in the nature of further ad- vances. The doubt of Mr. Powell seems more correct in principle than the reason against it ; for a bond is alloAved to be tacked to prevent a circuity of remedy in respect of a re- covei'able debt, and not to make a new remedy Avhere there was none before : and we have seen that, as a general rule, there is no remedy for interest beyond the penalty. Neither can interest in arrear be turned in such a manner into principal, as the treating it as a further advance would imply (1666). The proposition may, however, be supported upon the prin- ciple, that a person, who comes for the aid of equity to compel redemption, nuist do equity by payment of all in- terest ; and the rule has been so laid down where a mortgagee has tacked a judgment to his mortgage (.r). 1658. Interest has been given beyond the penalty to a judgment creditor, who was a trustee in possession under the will of the debtor, on the ground that he might have retained the rents (though he did not do so) to pay the interest due to himself, and that but for the filing of the bill he would have retained possession as trustee (y). As prior to the act 1 & 2 Vict. c. 110, interest was not generally given upon judgments at law, except by way of damages, so on taking accounts in equity (z) no interest was alloAved on judgment debts, unless the original debt Avere one which carried interest. Yet if the debtor were guilty of vexatious conduct, or sought the aid or indulgence of the court, he was made to pay interest on the judgment debt. 1659. By 1 & 2 Vict. c. 110, s. 17, every judgment debt in England (which includes a debt for which a judgment has been given as security) («), and by 3 & 4 Vict. c. 10a, s. 26, every debt due on a judgment, not confessed or recovered for ((/) Tow. Jilovt. 350, note (q). (:) Gannt v. Taylor, o :Nry. & K. (j-) Sec Godfrey v. Watson, :3 Atk. 302 ; Hunt v. Cradock, 1 Jur. 73.*.. 517. ('0 Knight r. Bowycr, 4 Dc G. .^ J. (//) Atkinson i'. Atkiusou, 1 Bu. & Gl'J. Be. 2;>l». 916 INTEREST ON JUDGMENT DEBTS. any penal sum, for securing principal and interest in Ireland, bears interest at the rate of four pounds per cent, per annum, until satisfaction from the entering up of the judgment (Z»). It has been laid down of the Irish (c), and it follows of the Eno;lish act, that no chano-e is made in the character of the judgments, but that the Statute of Limitations continues to bar the interest given on the judgment debt. The 18th sect, of 1 & 2 Vict. c. 110, which gives to decrees and orders of court the force of judgments, does not, in com- bination with sect. 17, make a person ordered by the court to pay a sum of money, the amount of Avhich is to be ascertained by inquiry, liable to pay interest on that sum between the date of the decree, and the time at which the amount payable is ascertained {d). 1660. It is provided by the Attorneys and Solicitors Act, 1860 (c), that whenever a decree is made by the Court of Chancery (162), in which the payment of any costs pre- \dously taxed either in the suit or proceeding in which such decree or order is made, or in any other suit or proceeding, is ordered, and wdiether the certificate of such previous taxation have been made before the passing of the act, or shall be made thereafter, the court or judge making such decree or order may order the amount of such costs as taxed, including the certified costs of taxation, to be paid with interest, at the rate of 4Z. j)er cent, per annum from the date of the certifi- cate ; the amount of such interest to be verified by affidavit, and to be payable and recoverable out of the same fund, and in the same manner, as the amount of such costs. Of ike Conversion of Interest in Arrear into Principat. 1661. It was said (/) to be always a rule, that the assig- nee of a mortgage should have interest for the interest due {h) I. e. the day on which judgment (o) Henry v. Smith, 2 D. & W. 381. is .signed in tlic master's book. Fi.sher {d ) A.-G. v. Lord Carrington, G V. Budding, Scott, N. R. 516 ; 3 M. Bear. 4G0. & G. 238 ; Newton v. G. J. K. Com- (e) 23 & 21 Vict. c. 127, s. 27. pany, IG M. iS: W. V.y.K (./■) Anon., 1 Ch. Ca. 238. CONVERSION OF IXTIJIKST INTO I'UIN'CTPAL. 917 at tlie assignment; but now(y), \i' thoro, be an an'onr of in- terest on a mortgage, and an assignment be made by the mortgagee with the concurrence of the mortgagoi*, the in- terest paid by the assignee shall be taken as principal, and carry interest ; but Avhcre it is assigned -without the concur- rence of the mortgagor (unless it seems (h) he first refuse, either to pay off the debt, or to join in the assignment), the assignee must take only u])on the same terms with the as- signor : that is, he will be entitled as asiainst the mortfrajjor to no more than is actually due on the security, without reference to what he may have paid, and the interest which he pays will not be taken as principal (1674). The mere privity or assent of the mortgagor to the account is not sufficient (/) to change the interest into principal, even if he sign the account ; for no intent is thereby shown to alter the nature of that part of the debt which consists of interest. On the other hand, conversion may take place on the mere Avritten consent of the mortgagor, or person entitled to redeem, Avithout his being actually a party to the assio-n- ment, or even on inference of his consent arising from his acts or from his acquiescence ; thus where interest had been paid for many years upon an ascertained balance of i)rincipal and interest, reported due at the date of a decree for sale, the court inferred an agreement that interest should be paid as the price of forbearance to enforce the sale (k). And again, where a puisjie incumbrancer, who had purchased the equity of redemption under a decree of the court, took in two judg- ments prior to a mortgage security, at the desire of the mort- gagee, who was unable to take them in hhnself, the court considered (/) his consent to be equivalent to his joining iu ( tj) Ashcnluirst v. James, 3 Atk. Be. 375. 271 ; Earl of ^Iiiccleslicld v. Fitton, ] (/) Ashcnliiu-st r. James, 3 Atk. Vem. 1G8 ; Matthews i-. "Walwvii, i 271. There seems fomicrly to have Ves. lis ; Chambers v. Goldwin, 9 been a practice of adding the interest Ves. 25i ; Mangles v. Dixon, 3 II. L. to the iirincipal.upoii asslLrnment, after C. 737. forfeiture by nonpayment of interest, (//) Anon., Bunb. 41. though the time for pa)Tncnt of the (/) Bromi V. Barkham, 1 V. M'nis. principal had not arrived. See Glad- G52. Av^ni V. Ilitcliman, 2 Voni. 135. (A) M'Carthy v. Llandaff, 1 Ba. .'t 918 AGREE!MENT TO CONVERT the deed, and alloAvcd the judgment creditor interest on all that he had paid. 1662. Inquiries will be directed as to what is due on the mortgage, and what has been paid by the assignee (m). If it be denied that anything was due at the time of the assign- ment, the inquiry Avill be, Avhat Avas due at the time of the mortgage, Avhat at tlie time of the assignment, and wdiat remains due ; and if it appear as the result of the inquiry that nothing was due at the time of the assignment, the assicrnment will be declared void as against the estate of the mortgagor. But if otherwise, and the assignment were made without the mortgagor's privity, he or those claiming under him will be at liberty to redeem on paym.ent of what has been found due on the original security (??,). 1663. Interest upon arrears, or upon fines for nonpay- ment of principal and interest, is not allowed by the court Avhere there is no contract for it(o). And before the abo- lition of the usury laws there could be no payment of such interest by virtue of an original stipulation in the mort- gage deed, but the interest must first be due, before any agreement to turn it into principal would hold good (j^). It Avas decided at an early period by Lord Keeper North (q), that such interest as was reserved in the body of the deed should be reckoned principal ; because, being ascertained by the deed, an action of debt Avould lie for it, and it Avas reason- able that damages should be given for its nonpayment. But this doctrine assumed the A^alidity of the bargain, AA'hich was afterwards denied, on the ground of usury ; and upon that ground alone the rule just stated appears to stand. For, although Lord Eldon said, that such a bargain Avas neither illegal nor unfair, he added that the court Avould not alloAv it, (m) Smith v. Pcmljcrton, 1 Cli. Ca. moutli, Salk. 449 ; Broadway v. More- C7. craft, Mos. 247 ; Sir Thomas Mcer's (?i) Matthews r. "Waluyii, 4 Vcs. case, cited Foi-. 40; Ex parte Champion, 129 ; Lunn v. St, John, cited there. .'i Bro. C. C. 440 ; Ex parte Bcvan, 9 (tf) Proctor V. Cooper, Pre. Ch. 110 ; Vcs. 223 ; Llorgan v. Mather, 2 Vcs. Thomhill v. Evans, 2 Atk. 330 ; Par- jun. 21. kcr r. Butcher, L. R., 3 Eq. 762. (q) Howard v. Harris, 1 Vern. 194. (^;) Lord OssuLston v. Lord Yar- INTEREST INTO rillNCirAL. 019 because it tended to usury, though it was not usury (r) ; and another learned judge (5), who questioned the accuracy of this language, considered that the doctrine could not be supported, except on the ground that, some advantage being supposed to arise to the mortgagee, idtra the 5/. per cent, interest, and that advantage being secured by an original stipulation, the contract savoured of usury. The getting a collateral advan- tage has also been mentioned as a reason for the rule {t), but this seems to be merely a form of usury {u) ; and if it be, as it clearly is [x), laAvful to turn interest into principal by agree- ment after the interest has become due, and provided there be no oppression, there seems no reason, save that of usury, why the like bargain may not be made on the original con- tract, when the parties are dealing at arm's length, and the mortgagor may be able to choose his own lender. It is there- fore submitted, that, with the abolition of the laws against usury, all reason for the prohibition of original contracts to turn interest into principal, except where fraud and oppression are in question, has ceased (y) : and it is believed that such a contract is now generally considered to be valid (356). 1664. An exception to the rule against the conversion of interest into principal, under the original contract, is founded on the law respecting mercantile transactions ; for as by that law it was alloAvable (contrary to the general rule of the English law that a contract for compound interest is not valid (r) ) to make rests in transactions between merchants, by previous agreement, such being the usual course of (?•) Chambers v. Goldwin, 9 Vcs. tlie principal and interest already due, 271. with interest on that interest, the master (s) Aldcrson, 1?., in Blackhurn v. came to the singular conclusion that the "Warwick, 2 Y. & C, 92 ; see also second transaction was a satisfaction of Sackctt V. Bassctt, 4 ^Mad. 58, where an the first mortgage, hut was itself void issue was directed. for usury; thus holding the same deed (t) 9 Vcs. 272. to be at once good against the creditor (?/) Sec Barnard v. Young, 17 \'cs. for one purpose, and bad for another. 47 ; Lcith v. In-inc, 1 My. & K. 284. Tlie question of usury aftenvards went (.r) Blackbuni r. Warwick, 2 Y. & to a jury. (Sackctt r. Bassctt, 4 Mad. C. 92 ; Thornhill v. Evans, 2 Atk. iWl. 58.) (y) In a case in which, after interest (r) Ex parte Bevan, 9 Vcs. 223 ; had become due, the mortgagee took a Fcrgusson r. Fyffe, 8 CI. ^^ E. 121. second security for a sum composed of 920 CONVERSION OF INTEREST INTO TRINCIPAL. trade {a), so it was hold in oqiiity (/*), that securities upon land might, notwithstanding the usury laws, be given to secure the final balances due on such transactions ; and this exception, which, however, only applies during the subsist- ence of the mercantile relation, and not after it has merged into that of mortgagor and mortgagee (c) is applicable to deal- ings between bankers and their customers (fZ). Whether such rests could be made at shorter intervals than a year, seems to have been doubted, though the rule amongst merchants does admit of half-yearly and quarterly rests ; and such have also been allowed on admissions in the case of a mort- gage (e). But these decisions were prior to the changes Avhich were made in the law of usury before they were finally abolished ; and from the construction put by several eminent judges (/) upon the statute 2 & 3 Vict. c. 37, which abolished usury as to contracts above 10/. (1689), with an express exception of securities upon land ; it was held to folloAV (^), that where money was paid to bankers in discharge of a security taken by them upon land, for the balance due from a customer, which balance was partly made up of discount upon bills charged at a higher rate than 51. per cent., the excess of in- terest charged for discounting such of the bills as were within the statute 2 & 3 Vict. c. 37, must be disallowed. 1665. It has been said, that interest upon interest in arrear, when the mortgage is paid off, is never allowed in equity {h); which probably depends on the rule that interest on arrears will not be given on an agreement made before the arrears were due ; but such an agreement for the reason given above would probably now be held good. 1666. A mere notice by the mortgagee to the mortgagor is not sufficient to turn arrears of interest into principal. (a) Ex parte Bevan, supra. (e) Id. (J) Lord Clancarty v. Latouchc, 1 (/) See Ex parte Warrington, Ba. & Be. 420. Dc G., M. & G. 159 ; Lane r. Ilorlock, (c) Crosskill v. Bower, 32 Beav. 8G ; 1 Drew. D87 ; James v. Eicc, Kay, 32 L. J., Ch. 540 ; Morse v. Salt, 32 231. L. J., Ch.7o6. (r/) Thomas r. Cooper, 18 Jur.r.SS. {(l) RufFord V. Bisliop, 5 Russ. 340. (//) Thornliill r. Evans, 2 Atk. 3.30, COMPUTATION OF SUBSEQUENT INTEREST. 921 The debtor must distinctly assent to the demand. The agree- ment must also he made fairly, and is generally and most properly upon the advance of fresh money (/). It is clearly not looked upon with favour by the court, and will be avoided by circumstances which show extortion ; as if the interest on the arrears be fixed at a higher rate than that on the original security. The infant heir of the mortgagor has been held (h) bound by an agreement of this kind, made to prevent the mortgagee from entering ; it being clearly for her benefit, and made with the privity of her nearest relations. And such an agreement, made by the assignee of the equity of redemption, in trust for the payment of debts, and to pay the surplus to the mortgagor, has been held (/) to bind the mortgagor's heir, though no party thereto. But such an agreement made in favour of the first mort- gagee will not hold against later incumbrancers of whom he had notice ; for the same reason which prevents a mortgagee i'rom tacking further advances against such subsequent incum- brancers fw). Of Compntinf/ subsequent Interest. 1667. It was formerly the practice of the court, upon enlarging the time for payment of the mortgage debt (1789) to direct subsequent interest to be computed on the aggregate amount of principal, interest and costs found due by the foraier report, and from the confirmation thereof (?«); the reason of which Avas, that as the further time was given to the mortgagor, by the favour of the court, he was put upon temis, by which the other party M'ould be indemnified for the delay ; or, it has been said (o), that he might sufier for dis- obeying the order of the court for payment on the day fixed. (i) Tompson r. Leitli, 1 Jur., N. S, 2 Eden, 201. 1091 ; Thoniliill w Evan::*, supra. («) Bickham v. Cross, 2 Vcs. 171 ; (/■■) Earl Chcstcrfiekl r. Lady Crom- Crcnzo r. Hunter, 2 Vcs. jun. 1." ; well, 1 E.i. Ca. Abr. 2Sii. Turner v. Turner, 1 Jae. & W. 31). {I) Comvay v. Shrimpton, 2 Eq. (o) Brown v. Biukbani, 1 V. Wnis. Ca. Abr. 738 ; 5 Bro. V. C. 187. Cr)2. (h() Digby r. Craggs, Ambl. (J 1 2; M. VOL. II. ,-. V ^" **"' *•> *""*''^ "^ y~' ' ^'i'V tHr t ^- ■* ^ ■ • - "^ '' "*." '^ ' 922 COMPUTATION OF SUBSEQUENT INTEREST. But the practice was not followed in suits in which the delay was not granted by the favour of the court, and it seems not to have prevailed in suits for sale and payment of incum- brances (p) ; the distinction between such suits in which the delay does not arise from the default of the mortgagor, and in which the practice might be highly injurious to the interests of other creditors, and suits for foreclosure, having been long recognized ; but in a suit for sale, an order has been made to compute interest on the principal only, without prejudice in case there should be a surplus («7). 1668. At the present day, it is the practice in suits for administration, where the mortgaged estate has been sold, to compute subsequent interest on the principal only (?-). In foreclosure suits, when the time for redemption is enlarged, on payment within a short time of the interest and costs (.<?), subsequent interest can of course be given upon the prin- cipal only (t). But if the court should enlarge the time with- out imposing this condition, or requiring payment of interest on the whole principal, interest and costs, it will be payable on the principal and costs only (u). 1 669. Where an infant heir had revived and carried on a creditor's suit, commenced by the mortgagor, but neglected to pay the money on the day appointed by the decree, the subsequent interest was directed (x), in accounts taken in a foreclosure suit instituted by the mortgagee, to be taken from the confirmation of the former report, on the sum thereby reported due ; the former decree having been signed and enrolled, and the infant, subject to his right to surcharge and falsify, being held to be bound thereby ; and as this was not a case in which the person in default was seeking (^) Ilarris v. Harris, 3 Atk. 722. withstanding Bruero v. Wharton, 7 (q) Neal V. A.-G., Mos. 24G. Sim. 483. (r) Whatton r. Cradock, 1 Keen, (n) Whitfield v. Eoberts, 7 Jvu-., N. 2G7 ; Brcwin v. Austin, 2 Keen, 211. S. 12G8. In Wilkinson v. Charlesworth, («) Edwards v. Cunliffc, 1 Mad. 287 ; 2 Beav. 470, interest was given on the Jones V. Creswickc, 'J Sim. .''04 ; Monk- principal only, though the time for pay- house V. Coqioration of Bedford, 17 nicnt hud hccn allowed to expire. Ves. 381. (./•) Badham v. Odcll, 4 Bro. P. C. (t) Brcwin v. Austin, 2 Keen, 211 ; 349. Wliatton r. Cradock, 1 Keen, 2G7 ; not- RIGHT TO SET OFF INTEREST. 923 the iudulgciice of the court, the decision seems still to be of iiuthority. 1670. Where interest runs on the whole sum found due by a certificate, it so runs only from the confirmation of the certificate, and up to that time on the principal only (//). 1671. Where the question of interest is not reserved by the decree, it is properly a matter of rehearing, or to be determined on further directions where they are reserved, and should not be brought forward by petition ; which is only jn-opcr for carrying out the directions of the decree (z). Of the Rif/ht to set off Interest. 1672. If the mortgagee purchase and take possession of the estate, and no interest be paid either on the mortgage debt or the purchase-money before completion, there Avill be a set off pro tanto from the date of possession ; and the interest will be payable on the balance of the purchase-money only (a). But the devisee of the mortgagor is not entitled, on redemp- tion, to set off the arrears of interest on a legacy bequeathed by the mortgagee to the mortgagor, against the amoimt due on the mortgage; because set-off does not take effect ipso jure, or without a process in our courts, but the debts subsist notwithstanding the cross demands, and may be separately assigned; and if the mortgagor had sold the estate subject to the mortgage, the purchaser could not have come for such an account. It seems, however, that before the death of the mortgagor, the set-off might have been directed, upon taking the accounts {b). Where incumbrancers had enforced their lien against tlie assignees of the bankrupt's estate, in a Chancery suit, in which the subject of the security had been sold, and the pro- ceeds applied in reduction of the debt, the mortgagees, in proving for the residue, were allowed to set off the income of (y) Jacob I'. Eai-1 of Suffolk, Mos. and see in Lord Midleton r. Eliot,!.") 27 ; Kelly v. Lord Bcllcw, 4 Bro. V. C. Sim. 53L 495. (rt) Wallis v. Bastard, 4 Dc G., M. (z) Crcuzc V. Hunter, 2 Ves. jun. & G. 25L 1C4 ; Goodycre r. Lake, Ambl. 584 ; (Jj) Pettat v. Ellis, Ves. 5C;i. 3 02 924 RIGHT TO AEREARS OF INTEREST l)roperty accruing after tlie bankruptcy, against the Interest on the debt since the same period (c). And wliere there is delay in carrying out the order for sale, the equitable mort- gagee may apply the rents in reduction of interest accruing after the order, and to the date of the account (rZ), though generally lie cannot have or prove for it beyond the date of the fiat (c ). Of the Bif/ht to Arrears of Interest under the Statutes of Limitation. 1673. It was provided by 3 & 4 Will. 4, c. 27, s. 42, that I . after the 31st day of December, 1833, no arrears of rent or [^a of interest in respect of any sum of money charged upon, or cW \J^ payable out of, any land or rent, or in respect of any legacy, [ <iC ' ' 01* ^iiy damages in respect of such arrears of rent or interest, V shall be recovered by any distress, action or suit, but within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing- shall have been given to the person entitled thereto, or his agent (503, 680), signed by the person by whom the same was payable, or his agent (503) : provided that where a prior incumbrancer (1678) (which includes a judgment creditor (/), but not a trustee holding outstanding interests upon trust for the person claiming the benefit of the proviso ( y) ), shall have been in possession or receipt of the rents and profits within one year before an action or suit shall be brought by a puisne. inciunbrancer of the same land, the puisne incumbrancer may recover in such action or suit the arrears which have become due during the whole period of the prior incumbrancer's pos- session or receipt, though such time may have exceeded six years. Before the day appointed for this act to take effect, viz., on the 1st of June, 1833, another act, being c. 42 of the same {e) Ex parte Tenfold, Re Barker, 4 Ex parte Lubbock, 9 Jur., N. S. 85.". Dc G. & S. 282. (/) 2D. & W. 300. (rf) Ex parte Ramsbottom, 4 Dca. & {g) Chinnery v. Evans, 11 H. L. C. Ch. 198; 2 Mont. & A. 79. ] 15. (f) Ex parte Badger, 4 Ves. 1G5 ; UNDER THE LIMITATION ACTS. 925 session of parliament, came into force ; by which twenty years was assigned (s. 3) as the time of limitation for actions of covenant or debt upon any bond or specialty, and this, which was at first confined to England, was in 1840 extended to Ireland by 3 & 4 Vict. c. 1 05, s. 32. 1674. The construction of these enactments is, that no more than six years' arrears of rent or interest can be recovered against the land, by force of 3 & 4 AVill. 4, c. 27, s. 42, in respect of any sum charged upon, or payable out of, any land or re^it;. unless the existence of a trust to secure the debt and interest brings the case within the exception as to express trusts, pro- vided by sect. 25 of the same act ; and that under 3 & 4 AVill. 4, c. 42, and the Irish act, interest may be recovered for twenty years by action of covenan t o r debt on the specialty (A). 1675. Before the courts had arrived at the conclusion-- above pointed out, as to the true construction of these statutes, it had been held (e) by Sir J. Wigram, V. C, that the pro- vision of c. 42 of 3 & 4 Will. 4, was an exception out of the ■ enactment of c. 27, not merely — as limited by these authori- ties—enabling the interest of money charged on land, and secured by specialty, to be recovered against the person of the debtor, by action on the bond or covenant, but that it was a complete exception for all purposes ; so that where the debt was secured by specialty, the twenty years' interest might be recovered, as well against the land, as against the person of the debtor. This, as a general decision, cannot now be sup- ported ; but so far as it rested upon the particular circum- stances of the case (and the Vice -Chancellor's observations show that in a great measure, though perhaps not entirely, it did rest upon those circumstances), it appears to remain uii- (/i) Paget V. Foley, 2 Biug. N. C. 204 ; 15 L. J. (N. S.) Cb. 6;] ; Cox r. G79 ; Strachan r. Thomas, Sims r. Dolman, 2 De G., M. & G. ."iOi' ; Snow Thomas, 12 A. & E. o3(; ; llarrissou v. r. Booth, 2 K. & J. 132 ; 8 Dc G., M. Duignan, 2 1). & W. 2<J5 ; Hodges v. & G. GS) ; Shaw v. Johnson, 1 Dr. & Croydon Canal Company, 3 Bcav. 8G ; Sm. 412 ; Lewis r. Duncombc, 20 Hmitcr V. Nockolds, 1 :Mae. & G. G41 ; Bcav. 175 ; 7 Jur., N. S. Git5 ; Bound Hughes v. Kelly, 3 D. & W. 482 ; v. Bell, 30 id. 121 ; 7 Jur., X. S. 1183. Humfrey v. Gery, 7 C. B. B. 507 ; (() Du Vigicr i. Lcc, 2 Haic, 326. Young V. Lord ^^'atcrpnrk, 13 Shn. 926 RIGHT TO ARREARS OP INTEREST affected by the other authorities. In the case before V. C. Wigrain, the author of the incimibrances was not alive, as he was in the later case of Hunter v. NocJwlds (k). Now, we have seen, that although a mortgagee cannot tack the covenant or bond of the mortgagor against him to the mortgage, yet to avoid circuity he may do so against the heir (1S19): and all the authorities show that though the mortgagee can recover but six years' arrears of interest against the mortgaged estate, he may recover for twenty years under the covenant. Part therefore of the debt may be considered to be secured by the mortgage, and other part by the specialty ; and the mortgage debt, and the specialty debt, may accordingly be tacked against the heir of the mortgagor, w here he is bound by the covenant (Z); provided there be no creditors, or persons having a lien on the estate subsequent to the mortgage, whose rights, according to the rule of tacking just referred to, would inter- fere with this process. And this, it seems, may be done in a redemption suit (m), although no case for tacking have been made on the pleadings, for there the court puts the mort- gagor, who is seeking relief against the legal rights of the mortgagee, upon the terms of paying all that is due ; but in a foreclosure suit the court, although recognizing the right to tack the interest, whether by virtue of a covenant contained in the mortgage or in some other deed, has refused to alloAv it, where no case was made for that kind of relief on the pleadings {n). 1676. The 42nd section of 3 & 4 Will. 4, c. 27, does not apply to an annuity charged on personal estate, the yearly payments not being considered as interest in respect of a legacy {()). But it a2)j)lies to an annuity payable out of land by virtue of the words " arrears of rent ; " because tlic inter- (/<•) 1 Mac. & G. G40. (//(,) Elvy r. Norwood, supra. (Z) Du Vigier t". Lcc, 2 Ilarc, 320; (?i) Sinclair v. Jackson, 17 Beav. Elvy V. Norwood, 5 De G. & Sm. 240 ; 405. But Du Vigier v. Lee was a fore- lOJiir. 493. In Shaw V. Jolnison, the closure suit, and no such case was mortgagor was also living and the case made. was taken out of the statute by the (o) In re Ashwell's "Will, Joh. 112 ; existence of a trust. (1 I). & Sni. Eoch v. Cullen, G Hare, 531. 412.) UNDER THE LIMITATION ACTS. 927 pretation clause speaks of annuities charged on, or payable out of, land. It has been held (p), in a suit by a mortgagor, to recover the surplus of purchase-money arising from the sale of the estate by the mortgagee, that the latter, by reason of the statute, could retain only six years' arrears of interest ; it being apparently assumed that the mortgagor could have redeemed on payment of interest for that time- But the statute points to a proceeding by the mortgagee to recover interest ; and it has been observed that it does not follow, because a mortgagee who has allowed his interest to run in arrear for more than six years before suing, is limited to in- terest during that jteriod, that a mortgagor who has lost his legal right and comes for redemption is to get an advantage for his neglect to pay interest. It was, therefore, concluded that the mortgagor's bill to recover the surplus purchase-money is not a suit for the recovery of money ; and in a suit to admi- nister the mortgagee's estate, a petition to apply the produce of the sale of the morto;ao;ed estate accordinji' to the rights of the parties, was held not to be a proceeding to recover in- terest Avithin sect. 42 of the statute ; and the whole of the arrears were ordered to be paid to the mortgagee (//). The words "the person by whom the same was payable" (sect. 42), denote, not merely the mortgagor, who is the person legally bound to pay the interest, but all persons against whom payment of the arrears may be enforced by any action or suit. They there- fore include subsequent incumbrancers, by whom the interest may properly be said to be payable, because they are entitled to pay it in redemption of the jirior mortgage, and arc liable to be made defendants to a suit in equity to compel payment out of the land. And where there are successive incum- brances, the acknowledgment of the mortgagor alone will not, under this section, keep alive the right of the first incum- brancer to arrears of interest beyond the period fixed by the statute, to the detriment of later incumbrancers who have not made any acknowledgment (683) (r). (2>) Masou r. Brondbcnt, 33 Bcav. (r) Bolding f. Lane, 1 Dc G., J. I'v. 296. S. 122 ; 9 Jiu'., N. S. oOG ; overruling y (q) Etlmunds r. Waugh, L. K., 1 Eq. S. C. 3 Gif. SGI ; 8 Jur., N. S. 407. '418. ^ , 928 RianT to arreaks or interest 1677. Judgment debts are clearly debts charged upon land ■vvithin the act 3 & 4 Will. 4, c. 27* s. 42, and the interest on them is interest within that section, and is, therefore, recover- able for six years only (s) ; and the rights of the judgment creditors to arrears of interest are co-extensive ao;ainst the real and personal estate, there being no more right against the personal than against the real estate. 1678. The exception in 3 & 4 Will. 4, c. 27, s. 42, as to the possession or receipt of the profits of land, by a prior in- cumbrancer (1673), relates not merely to the actual land, or property which is held by the prior mortgagee, but also to the estate or interest therein of the person in respect of whose debt possession has been taken. Therefore (t) the judgment creditor of a remainderman cannot have the benefit of the exception, so as to get interest beyond six years, on the ground that an incumbrancer of the tenant for life has been in prior possession ; for if the possession had been vacant as to incum- brancers, the judgment creditor of the remainderman could not have entered in the time of the tenant for life. The ex- ception is only in favour of persons who are waiting, being imable to come in during a prior possession, but who come in within a reasonable tune after that possession is at an end. And apart from the plain equity of this doctrine the case appears to be met by the interpretation clause of the act, which extends the meaning of the word '' land" to any share, estate or interest in the several kinds of property which it includes. So that the exception may be read thus, " where any prior mortgagee, &c. shall have been in possession of any share, estate or interest in land, &c. within one year next before an action or suit shall be brought by any person en- titled to a subsequent mortgage, &c. on the same estate, share or interest.''^ This exception states the only case in Avhich it was in- tended to relieve the creditor from the effect of the previous enactment. (.?) O'Kelly V. Bodkiu, 3 Ir. Eq. R. & S. 211. 090 ; Henry v. Smith, 2 Dm. ."t W. (i) Vinceut v. Going, 1 Jo. & Lai. 381 ; overruling Kcalj v. Boclkin, Sausbc 097. UNDER THE LIMITATION ACTS. 929 1679. The court will not, to avoid circuity of action, enforce an obligation indirectly where the consequence would be an evasion of the Statute of Limitations. Therefore, where an annuitant filed a bill to raise the arreai's of his annuity against a purchaser, subject to the annuity, of the estate charged, an account of arrears for more than six years Avas refused (m), though the result was to drive the annuitant to sue the personal representatives of the grantor of the annuity, upon his covenant, at law, for twenty years' arrears; the representatives so sued being entitled to sue the pur- chaser again, in equity, in respect of their testator's right to an indemnity against the covenant ; which circuity might have been avoided, by enforcing the same obligation against the purchaser in the first suit. The decision, however, rested much on the circimistauces that the covenantor's representa- tives were not parties to the suit, that the obligation was personal only, and that there was no proof that the covenan- tor's estate was damnified. The 42nd section of the statute, as we have already had occasion to observe, is aftected by the 25th section, which re- lates to cases of express trust (689). 1680. It has been determined in England (x), that a fore- closure suit, although in tenns it only seeks the exclusion of an equity, is in substance a suit for the recovery of the mort- gage money, and as such falls within sect. 40 of 3 & 4 Will. 4, c. 27; but this opinion, though at first (y) accepted by Lord St. Leonards, was afterwards dissented (^) from by him ; because, he observes, a foreclosure suit does by no means necessarily, though it may incidentally, lead to the payment of the money ; but the act applies strictly to an action or suit to recover the money secured by any mortgage, &c. The terms of the 42nd section are difiereut; the lano-uaoe being- that no arrears shall be recovered by any distress, action or suit, not by any suit for the recovery of the arrears. Now if, in a foreclosure suit, the principal and tAventy years' arrears of interest be (k) Han-issou r. Diiignan, 2 D. & (//) Henry v. Smith, 2 D. .<t W. 3.<7. W. 205. (:) Wiixun r. Vi/c, 3 1). & AV. 104. (.c) Dcarmun v. Wjehc, l) fcjim. 075. 930 RESERVING HIGHER INTEREST paid off, those arrears are recovered by the suit, and are, therefore, -svitlun the very words of the act (a). 1681. A mortgage of a canal, Avith the works and rates, is within the act 3 & 4 Will. 4, c. 42, and six years' arrears of interest only are recoverable against the mortgaged pro- perty (I)) ; but the tolls of a turnpike are not an interest in land within the act (c). 1682. The operation of the statute as to interest, or arrears of an annuity, Avill not be hindered by a mere find- ing that the estate is subject to an incumbrance (<^) ; but it will be otherAvise if the person entitled to the charge be a party to the inquiry, and have carried in a claim upon which the finding was grounded (e). Of the Rate of Interest. 1683. Whetlier tlie security expressly provide or not for payment of interest after the time fixed for redemption, in- terest at the rate reserved up to that time will still be re- coverable even at law — not on the contract, but as damages for detention of the debt ; and therefore at laAV only to the extent of the damages laid. The mortgagor therefore, to avoid the j^ayment of subsequent interest, must be prepared to pay at the day fixed, and must give notice that he will do so (/). It is a well-settled, if not an intelligible rule, that if the mortgagee Avill stipulate for a higher rate of interest, in de- fault of punctual payment, he must reserve the higher rate as the interest payable under the mortgage, and j)rovide for its reduction in case of punctual payment (g) ; and cannot effect his object, by reserving the lower rate, and making the {a) Sinclair f. Jackson, 17 Bcav. 405; (r) Grecnway v. Bromfield, 9 Hare, Du Vigicr I'. Lcc, 2 Hare, y2G. I'Ol . (J) Hodges V. Croydon Canal Com- (/) Price v. G. W. E. Company, \C, pany, 3 Bear. 80. M. & W. 244 ; Morgan v. Jones, 8 Exch, {c) Mcllish t'. Brooks, id. 22 ; and (120 ; Watkin v. Morgan, G C. & V. see Re Langham's Trust, 10 Hare, GGl. 446. (y) Strode r. Parker, 2 Vern. 31G ; (d) Harrisson v. Duignaii, 2 D. & Jory v. Cox, Pre. Ch. 1(;0 ; Walmeslcy W. 2'Ju. r. iJuoth, Barn. CIi. 4sl. ON DEFAULT OF PAYMENT. 931 higher the penalty for non-payment at the appointed time ; because, it is said, an agreement of the latter kind, being nomine poence, is relievable in equity (/t). Where the provision is general the mortgagor cannot have the benefit of the provision for the smaller rate of interest, unless he strictly perform the condition ; he -will have no relief after the tmie of payment has passed (z). But if it be provided, that, as often as interest shall be paid within the limited time, the lower rate shall be accepted, or some equi- valent words be used pointing to any payment of interest, the mortgagor will not, by a single breach of the condition, lose his right to the benefit of it on future payments, but only upon that particular occasion (Jt). 1684. It has, however, been supposed (/), that the rate of interest may be raised, if it be doiic as the price of the mortgagee's forbearance, the additional interest being then looked upon, not as a penalty, but as a liquidated satisfaction agreed upon by the parties. And for this doctrine, tAvo deci- sions have been cited as authorities. In the one {m), the mortgage money, which consisted of debts already due to creditors, was made payable by instalments, Avith interest at 51. per cent. ; and there was a covenant, that if the money were not paid at the appointed times, or within three months after, the mortgagor, for every sum so unpaid, should pay 8/. per cent, until actual payment. The Court of Chancery decreed no more than 51. per cent, interest ; but the House of Lords, on appeal, tlirected interest at that rate to be com- puted upon every instalment for three months after it became due, and from the end of every three months interest at 8^. (Ji) Holies V. Wyse, 2 Vcni. 289 ; Strode r. Parker, id. 310; Nicholls r. Maynnrd, 3 Atk. 519. But there will be no relief in C(iuity under an agree- ment not to call in a mortgage on punc- tual payment of interest, though it be but two or three days in arrcar. (Ilicks V. Gardner, 1 Jur. 541.) (/) Bonafous ?•. Eybot, 3 Bur. 1375; Jory V. Cox, Pre. Ch. IGO; Stanhope r. Manners, 2 Ed. lyO. (Ji) Stanhope v. Manners; sec Bur* rowes V. Molloy, 2 Jo. & Lat. 521 ; Waj-n V. Lewis, 25 L. T. 2G4. An exe- cutor has been held to be justified in accepting the smaller rate of interest, though it was not paid at (he day fixed. (Ablington v. Booth, 3 Jm-., N. S. 49.) (/) Pow. Jilort. 901, ed. G. (w) Burton v. Slattcry, 5 Bro. I'. C. 233. 932 RESERVING HIGHER INTEREST per cent, was allowed according to the deed. But this decree was made ex parte, the respondent not ha-vdng appeared, and no case having been printed for him. Not a word was said of forbearance, nor is any reason given for the judgment, and it is not clear how a question of forbearance could arise, or why the reservation was less a penalty than in other cases. The other case (w) in question certainly seems to have turned upon forbearance, but it was after the arrear of in- terest had accrued ; the mortgagor on an account of principal and interest stated, having desired the forbearance of the mortgagee, and promised satisfaction ; upon which promise the court laid hold, and comj)elled the mortgagor to perform it by paying the higher rate of interest, which in one way or another was reserved by the security in default of punctual payment. Now, that upon an agreement made after interest has become due it may be turned into principal, we have already seen (1663). No doubt, therefore (o), the parties may stipulate in like manner for a higher rate of interest, but that does not touch the question of enforcing a penalty, entered into before interest has become due ; and the case is nothing to the pur])ose. It is also ill-rej^orted and contradic- tory, for the statement is that the mortgage was at 6/. per cent., with a proviso to take 5/., which was valid. But Parker, L. C, is twice made to say in his judgment, that the proviso obliged the party to pay 6/. per cent., in default of paying 51., which was a penalty, and relievable. 1685. In the same case it was said, that though the penalty were relievable if only a very short time had happened, it might not be so in case of a long arrear of interest ; and that on a written promise to make satisfaction for forbearance, the court would give the mortgagee some allowance in case of a great arrear of interest, even though no penalty were reserved. 1686. In a case (/?), heard before the Lords Commissioners in 1690, where 51. per cent, was reserved, and the mortgagor (;t) Brown v. Barkham, 1 P. Wms. Parker, L. C, in this case. Gi52. (j>) Marquis of Ilallifux v. IliggiuSj (<>) Sec tlic concluding remarks of 2Vcrn. loo. ON DEFAULT OF PAYJIENT. 933 covenanted to pay 61. per cent, if he made default for sixty days after payment, the doctrine above stated was not acted on, but 61. per cent, interest was decreed ; for the covenant, it was said, was the agreement of the parties, and not to be relieved against as a penalty ; but this decision, how- ever judicious in substance, has been clearly overborne by the current of later authorities. The case has been sup- posed to be misstated ((/), but it agrees Avith the registrar's book ; yet it is singular that in the subsequent case of Holies V, TVj/se (/•), it is said that the interest in Hall/fax v. Ilif/ffins was reserved at 61. per cent., with an agreement to accept 51. ; and the yet later case of Strode v. Parker {s) seems to imply the same. Lord Eldon, referring to the subject by way of illustration only (0, took quite a different view of the doctrine ; treating the reservation of the higher interest as a penalty, whether it were reserved only on non-payment, or originally, with an agreement for reduction on punctual payment; and saying that in either case relief might be had in case of non-pay- ment at the time, by paying the lesser rate of interest ; and putting the mortgagee in the same position as if it had been paid at the time, by giving him interest upon the unpaid in- terest. But although this view of the matter is entitled to great respect, it Avas only put forward extrajudicially, and does not seem to be consistent with any reported cases. 1687. Where no rate of interest is fixed by the parties, the court can fix it, and Avill adopt the current rate of 51. per cent, {it) ; which also appears to be the proper rate, where an absolute deed is cut down to a security under circumstances analogous to those which were formerly applied in cases of usury ; though no certain rule can be laid doAvn upon the {q) Powell, Mort. 901, n. (I). of interest agreed to be taken on a bot- (/•) 2 Vcni. 289. toniry bond, and tbe rate was fixed at (.s") Id. 31(». that which the risk wonld command at (t) Scton v. Sladc, 7 Ves. 273. the port where the bond was made, and (k) Ashwellr. Staunton, 30 Beav.r>2. was ascertained by a reference to the In the case of " The Change," 29 L. T. registrar and merchants. 147, evidence was refused of the rate 934 AGREEMENT TO REDUCE INTEREST. subject (?^). In the case of further advances, or of money allowed in the nature of further advances, the interest is generall}' given at the same rate as upon the monies origi- nally lent(j,'). It has, however, been directed to be com- puted after the rate current in a foreign country, where the money was expended, the current rate there being less than the interest reserved by the mortgage {y) ; but if it were othenvise, it is presumed that the rate of interest reserved by the mortgage would be adopted, as in ordinary cases. 1688. An unwritten agreement to reduce the rate of in- terest on a mortgage is good ; but in the absence of evidence or presumption of such an agreement, the difference between the rate reserved and that actually paid must be made good [z). So if a higher rate than is reserved be paid, the excess may be deducted on discharge of the mortgage (a). The mortgagee in possession will be allowed only the lov/er rate of interest reserved on punctual payment {h). 1689. In the days of the usury lav/s, no more than the legal rate of interest Avas allowed in England on a mortgage of land in a foreign country, where greater interest Avas lawful ; and upon a legacy charged on land in such a country, no greater interest was given as a matter of discretion (c). And, as a general rule, in other cases, where there is no question arising from the employment of money in trade, or from other exceptional circumstances, the court allows in- terest upon money at 4/. per cent. {d). And even where a mortgagee, who had been let into possession till he should be paid the sum lent and interest, held over, being overpaid for (w) Sec Douglas v. Culvcnvcll, 31 L. (Ij) Stains v. Banks, 9 Jul'., N. S. J., Ch. 544; Re Unsworth, 2 D. & S. 337. 1049. ^h*^Z^,Ctt, //Vt ' ^^^^ {x) Woollcy y. Drag, 2 Anst. .Oul. (^ Stapleton v. Conway, 1 Ves.427; (_y) Quarrell v. Bcckford, 1 Mad. and see 2 Bur. 1095. 281; and see Badham v. Odell, 4 Bro. (rZ) 1 Bro. C. C. 380; 2 Vcs. 239 ; P. C. 349. Archdeacon v. Bowes, M'Clel. 149 ; (2) Lord Milton v. Edgworth, 5 Bro. Ilcathcote v. Hulme, 1 J. & W. 122. P. C. 313; Gregory v. Pilkington, 2G But 5Z. per cent, in Ireland. (Leslie L. J. (Ch.) N. S. 177; 8 De G., M. & v. Leslie, LI. & Goo. temp. Sugd. 1 ; G. G16. Simpson v. O' Sullivan, 3 D. & W. (fl) Tyler v. Manson, 5 L. J., Ch. 459.) 34. RATE OF INTEREST ALLOWED. 935 tKirty-four years, he was only charged (e) with interest at 4/. per cent., though he had purchased part of a prior mortgage on the same estate, which had been paid off with interest at 51. per cent. (/). (c) Archdeacon v. Bowes, M'Clel. 149 ; Montgomery v. Calland, 14 Sim. 7i). (/) Usuiy, in its sense of excessive interest for the loan or forbearance of money, after being forbidden by statutes during several centuries, is no longer an offence against the law of England ; yet for the purposes of contracts exist- ing at the repeal of the usury laws, some notice of the subject is still neces- sary. The following is a summar}- of the several statutes by which the offence of usury has from time to time been de- fined, since the act 12 Anne, c. 2, s. IG, after the passing of which the prior acts expired or became obsolete. That sta- tute prohibited the taking, from and after the 29th September, 1714, above 5^. per cent, per annum upon any loan of monies, wares, merchandizes or other commodities, and made void all bonds, contracts and assurances for the se- curity of any such loans ; but it was declared by several later acts (14 Geo. .^, c. 79 (1773—4); 1 & 2 Geo. 4, c. 51 (1821—2); 3 Geo. 4, c. 47 (1823) ), that, subject to restrictions as to ad- vancing more than the value of the land, and as to registration, all mort- gages, securities and transfers which by any British subjects had been, or should be, made and executed in Great Britain concerning lands and hereditaments in Ireland, or in any British colonics, &c., in the "West Indies, or any estate or in- terest therein, to any British subjects, for securing the repaj-ment of money thereon really lent, with interest, whe- ther payable in Great Britmn or in the jdacc where the security la}-; and all bonds and covenants made and executed in Great Britain, either by persons bor- rowing such money, or by any other re- siding in Great Britain, or elsewhere, by way of collateral security for payment of such interest, or for securing additional or a higher rate of interest, and whether sucli collateral seciirity shoukl be made at the time of executing the mortgage, or at any sul)sequent time, or \\'ith tlio original mortgagees or their assignees, or the representatives or trustees of such mortgagees or assignees ; and all trans- fers and assignments, made in Great Britain, of such mortgages, securities or bonds, to any British subjects, should be as valid as if they had been made, and the interest thereon made payable, and as if the persons making such col- lateral securities had resided in the countrj' where the lands lay ; and that none should be subject to the penalties of the statute of Anne, by taking in- terest at the rate allowed by the law of the country where the lands lay, so that as to future transactions the interest taken should not exceed CZ. per cent. per annum ; but for that rate, the rate allowed by the law of the country ^\•hero the lands lay was substituted by the last of the above acts. By a modern act (5 & C Will. 4, c. 41) it was declared, that securities made void by the statute of Anne sliould thenceforth, instead of being void, be only deemed to have been given for an illegal consideration. By other acts (3 & 4 Will. 4, c. 98, s. 7 (1833); 1 Vict. c. SO (1837) ; 2 Sf 3 Vict. c. 37, s. 1 (1S30) ), bills and notes (which included waiTants of attorney to secure the amount of the bills or notes — Connop v. Meaks, 2 Ad. & El. 320) made payable at or within three months sifter date, or not having more than thrce months to run, and after- wards twelve months' bills .and notes, and still later, the like bills and notes, 936 WHEN INTEREST CEASES. When Interest ceases. 1690. The mortgagee is entitled to six months' interest from the date of the notice to him of the intended discharge of as well as all other contracts for the loan or forbearance of money above 10?. sterling (saving the laws conceniing pawnbrokers), were successively mth- drawn from the operation of the usury laws ; but by a proviso, ^\'hich was first held by the Court of Q. B. (Hodgkin- son V. Wyatt, 4 Q. B. E, 749) to he, and afterwards by tlie Covu-t of C. B. (BeU V. Coleman, 2 C. B. R. 2G8) not to be, retrospective, it was declared, that the act should not extend to the loan or forbearance of any money upon the security of any lands, tenements or hereditaments, or any estate or interest therein. The period for the operation of the last-mentioned act Avas several times extended (3 & 4 Vict. c. 8.'] (1840); 4 & -, Vict. c. .54 (1841); G & 7 Vict. c. 4.'5 (1843); 8 & 9 Vict. c. 102 (184.-.); 13 & 14 Vict. c. 50 (1850) ), but before its ultimate expiration all existing laws against usury were repealed (17 & 18 Vict. c. 90 (1854) ), with a proviso, that where interest was payable at the pass- ing of the act, upon any contract, ex- press or implied, for payment of the legal or current rate of interest, or where upon any debt or sum of money interest was then jiayablc by any rule of law, the same rate should be recover- able as if the act had not ])assed. And also saving the Pawmbrokers' Acts (108)- By :J9 & 40 Geo. 3, c. 99, cer- tain rates were fixed for interest and warehouse room, and for intermediate sums exceeding 2.?. C,(l. and not exceed- ing 40s. interest at 201. per cent, was authorized to be taken. The abolition of the usury laws has made these pro- visions unimportant. An earlier act (G & 7 Will. 4, c. 32, .s. 2 (1836) ) provided that, notwith- standing the usury laws, benefit liuild- ing societies might receive from any member thereof bonuses and interest on shares received, or any part thereof, without being subject to the penalties and forfeitures imposed by the usury laws. And the trustees of loan so- cieties, established under another act (3 & 4 Vict. c. 110, s. 21 (1840) ), vi'cre similarly authorized, to the extent of 121. per cent, per anniun ; though, on the ground that such advances have the character of partnership transac- tions, it had already been held legal to pay a premium to such societies, above 5Z. per cent, interest, on the advance of the loan. (Silver r. Barnes, 6 Bing. N. C. ISO, and case there cited before Alexander, C. B. So Burbridge v. Cot- ton, 5 De G. & S. 17.) The act of 2 & 3 Vict. c. 37, did not repeal the act of 12 Anne, but only took out of its operation all con- tracts made usurious by that statute, except such as related to land. (Thi- bault V. Gibson, 12 M. & W. 88. See Langton v. Haynes, 1 II. & N. 36G.) Nor did the statute of 2 & 3 Vict, repeal or aljsorb those of 3 & 4 Will. 4, or 1 Vict., which immediately preceded it ; for these, though negatively expressed, were, in fact, aflirmative statutes, and, therefore, not repealed by a subsecjuent affirmative statute. (Clack d. Sains- bury, 11 C. B. R. 711 ; Nixon v. Phil- lips, 7 Ex. 188 ; Ex parte Wamngton, 3 Dc G., M. & G. 159.) Now these statutes of 3 & 4 Will. 4 and 1 Vict, made valid bills and notes, Avhich would have been void under the statute of Anne, and made no provision against securities on land. Hence it was deter- mined, that if a three months' bill were void under the statute ?> 8c 4 Vict, because it was collaterally secured on land, it would yet be valid under the act 3 & 4 Will. 4. But it was held in equity (Lane v. ■VVUEN INTEUEST CEASES ; USURY. 937 the security (1378) ; aud where the mortgagee assents in an administration suit to a sale of the mortgaged pro})erty, he Horlock, 1 Drew. 587 ; James v. Rice, Kay, 231 ; Ex parte Wan-in jjton, 3 Dc G., M. & G. 1.50; Bond v. Bell, 4 Drew. 157; 3 Jur., N. S. 1290, but Stuart, V.-C. dissents. Thomas v. Cooper, 18 Jur. 688. The case of Lane v. Horlock was afterwards re- versed in the House of Lords, upon the ground that the advances, being on bills of three months, were protected by the statute 3 & 4 Will. 4, c. 98, s. 7 ; see 5 H. L. C. 580), notwithstanding several dicta of common law judges to the contrary, that a bill or other con- tract for the loan or forbearance of money at more than 5/. per cent, in- terest, which was valid by sect. 1 of the stat. 2 & 3 Vict. c. 37, was not made altogether void by the subsequent pro- vision of that act concerning securities on land ; for the landed security only, and not the personal contract, was held to have been aimed at ; and whiLst the one remained in full force the other was left within the operation of the statute of Anne. And it seems that the result of con- tracts made before the act of 2 & 3 Vict, and since that of 3 & 4 Will. 4, c. 98, for securing on land money bearing more than ol. per cent, interest, would have been the same ; because the latter statute and that of 1 Vict. c. 80, only removed from the influence of the statute of Anne such notes and bills as had respectively but three and t\velve months to run, leaving all other securities untouched. (James v. Rice, Kay, 231.) The courts of law took a somewhat different view of these statutes, hold- ing, first, that the relaxing statutes 3 & 4 Will. 4, c. 98, and 1 Vict. c. 80, only applied to interest on loans, where the bill securing the loan was the real bond Jide ground of debt, and did not ex- tend to the case of a bill given in ad- dition to a security of another kind ; M. VOL. II. so that those statutes would not protect a loan at more than 5^. per cent., se- cured by other means than by a bill or note alone ; as, for instance, by a war- rant of attorney and deposit of a lease. (Berrington v. CoUis, 5 Bing., N. C. 332.) But that if the bill or note were the real, or principal security, and the deposit or mortgage only collateral, then both the collateral security and the bill would be good. (Bell v. Cole- man, 2 C. B. R. 268.) So where a note, bond and mortgage were given for the whole amount of the alleged advance, but the sum paid was less, by the dis- count at 5^. per cent, of the note, with other charges, the jury having found, that the discoimt of the note was the primary object, and that the mortgage was only a collateral security, the mortgage was held to be good (Doe v. Haughton v. King, 11 M. & W. 333); and Parke, B., said, that the discount- ing being a fair transaction, the secu- rity by which it was protected must be so also {sed qii.) ; and that there was nothing in 1 Vict. c. 80, which made it less legal to protect such a payment by security on land than in any other way. The result of this view seems to be that a question would always arise whether the mortgage was collateral or a part of the original security. The Court of Q. B. also, on the assumption that 2 & 3 Vict, was re- trospective (from which, however, the Court of C. B. soon after dissented — Bell i: Coleman, 2 C. B. R. 268), held, after the passing of that act, that a bond made before it, to secure an usurious debt, also secured by a deposit of title deeds, was bad. (Hodgkinson v. AVyatt, 4 Q. B. R. 749.) It was held in equity (Lane v. Hor- lock, 1 Drew. 587 ; see Bond r. Bell, 4 Drew. 157 ; Boughton i: Jervis, 3 Gif. 144), that if, prior to the making au advance of money at interest%eyond 5/. 3 P 938 WHEN IXTEREST CEASES ; USURY. will have interest for six months from the date of the assent, if the mort2:ao;e be discharo;ed before the end of that time ; but if it be not, interest I'uns to the time of payment {g). percent, per aiimim, the lender required the particuUirs of the rental and valua- tions of the hoiTower's real estates, and the amount of the existing charges thereon, and then took for his security a warrant of attorney, by entering up judgment, upon which he obtained a charge on the land as complete as if he had it by direct agreement under 1 & 2 Vict. c. 110, s. 13 ; the wairant of at- torney would be within the statutes of usury, though it contained no mention of any security upon real estate, and though it were sworn by the lender and the borrower's solicitor, that no conver- sation took place as to making the real estates a security, and that the object of the inquiry was only to ascertain the sufficiency of the borrower's means. But this decision was opposed to the judgment of the Court of Q. B. in Lane V. Horlock, 4 Dowl. & Lo^\^ld. P. C. 408. With the view taken in equity upon this point by Kindersley, V.-C, Lord Cranworth, C, was inclined to agree, but the decision itself (see 5 H. L. C. 580) was reversed by the House of Lords, on the ground that the ad- vances, having been made on bills of three months, were protected by 3 & 4 Will. 4, c. 98, s. 7. The Court of Q. B. held, in another case (Withy v. Gil- liard, 4 D. & L. P. C. 424, n.), that where there was no mention in the security of the borrower's real estate a warrant of attorney upon which judg- ment had been forthwith entered up was valid ; and that the act did not apply where the land was thus in- directly affected. Usury might be avoided notwith- standing excessive interest, or advan- tage, if the safety of the money ad- vanced were hazarded. Therefore, although an annuity for years which would yield more than the amount of the jjurchase-money with legal interest was usurious, notwithstanding old au- thorities to the contrary, yet a life annuity was not usurious, because of the ob\aous risk of the dropping of the life before the repayment of the pur- chase-money. (Fereday v. Wightwick, 1 Russ. & Myl. 50 ; Tam. 250 ; Bel- cher r. Vardon, 2 Coll. 172, and cases cited in them ; Chillingworth v. Chil- liugworth, 8 Sim. 404 ; Flight v. Chap- lin, 2 B. & Ad. 112.) Nor did a life annuity become usurious by reason of a stipulation, where there were several lives, that ujion the dropping of one before the last the grantor should in- sure to the extent of the principal sum; there being still a hazard that the re- maining lives might drop together, and no absolute certainty of recovering on the policy. (Re Naish, 7 Bing. 150 ; Holland v. Pclham, 1 Cr. & Jer. 575.) So a security, of which the creditor was to replace the same amount of bor- rowed stock absolutely, at a given time, with interest in the meantime at i)l. per cent., was not usurious (FoiTCst V. Elwes, 4 Ves. 492) ; for, although the mortgagee would have more than the amount of his principal and legal in- terest in the event of a rise in the price of stock, yet if there were a fall he ■would have less, and the hazard saved the bargain ; Ijut if the agreement were, that the lender at his option should cither have the stock or the principal money and interest at ol. per cent., the fund being in no danger, and there being a chance of an advantage to the creditor, the transaction would be usu- rious. (Barnard r. Young, 17 Ves. 45 ; White V. Wright, 3 B. & Cr. 273.) Cir- {y) Day v. Day, 31 Beav. 270. WHEN INTEREST CEASES ; USURY. 939 If the mortgage cannot be discharged at the tinie fixed, by reason of the iua))ility of the mortgagee to produce the deeds; cumstances, however, might take an agreement of this kind out of the statutes ; as where (Goddanl v. Leth- bridge, 16 Beav. o2i)) the contract was to replace the borrowed stock when the creditor desired, and in the mean- time to pay interest at ol. per cent., but there was also a money bond conditioned to be void on payment of a sum equal to the produce of tlie stock borrowed ; the contract being made between near con- nections and without distress or oppo- pression, the court held that only the stock was meant to be restored — that the creditor liad no option to demand either money or stock, and that if the debtor, upon a fall in the price, had replaced it, the creditor would not have been al- lowed to sue on the bond. A partnership deed, under which the person admitted into partnership was to be under no liability for partnership expenses, and was to receive in lieu of profits an annual sum, exceeding in amount the legal interest on his advance towards the partnership cajiital, which advance was to be repaid him on his giving twelve months' notice of retire- ment from the firm, was not considered usurious, although the partner so ad- mitted was not required to attend to the business ; because though not liable, as between himself and his co- partners, he was liable for all the debts of the finn as against the rest of the world. (Fereday I'.Hordem, Jae. 144. For other cases as to usury, see Sinclair V. Stevenson, 2 Bing. 514 ; Marsh v. Martindale, 3 Bos. & Pul. 154.) It seems that the hazard that would save a security from the taint of usury must be apparent from the nature of the bargain. Hazard arising from an accidental defect in the security, such as insufficiency of value, or the gradual weai'ing out of the security, would not be sufficient. (Chillingworth v. Chilling- worth, 8 Sim. 404.) 3 The effect of usury upon the prin- cipal money could not be avoided by securing the interest in a different man- ner (Roberts v. Tremayne, Cro. Jac. 507) ; nor, in the case of a money or stock mortgage, by securing the return of the stock by one mortgage, and of the money and interest by another. (White V.Wright, 3 B. & C. 273.) And where a note was made the only secu- rity for usurious interest, and a lease was assigned as further security for the principal, with legal interest, but in- terest was taken at 71. per cent, per annum, the whole transaction was held to be usurious and void. (Follett v. Moore, 4 Ex. 410.) Neither might the taint of usury be avoided by disguising the matter as an affair- of trade, or pur- chase of goods at exorbitant prices (Barker v. Vansommer, 1 Bro. C. C. 149; Iving v. Hamlet, 2 M. & K. 456), or b}- any other device. And, if the lessee of land assigned his lease, in consideration of a sum of money, taking from the assignee an underlease at a rent greater than the legal interest of the money, the transaction was looked upon as a device to evade the law, notwithstanding the liabilities attached to the character of assignee of the lease. (Doe r. Chambers, 4 Camp. 1 ; Belcher v. Vardon, 2 Coll. 162 ; see Eari Mansfield v. Ogle, 7 De G., M. & G. 181.) When the bargain was in the shape of a sale of goods, which the vendor insisted should form part of the con- sideration, at apparently exorbitant prices, or other circumstances of sus- picion are present, the onus of proving that the transaction was not usurious, but that the goods were sold at their estimated value, lay on the creditor who, under colour, or by means of the sale, advanced the money (Davis r. Hard- acre, 2 Camp. 375; King v. Hamlet, 2 M. & K. 456) ; but, if it appeared that P 2 940 ■WHEN INTEREST CEASES ; USURY. or if in a redemption or foreclosure suit he omit to attend at the time and place fixed for payment, he Avill be allowed no in- the borrower took the goods openly and willingly at fair shop prices, or expect- ing to make a jirofit by them, it was for him to show the usury. (^Coombe v. Miles, 2 Camp. 553.) As no attention would be paid to the letter of the contract if the substance were illegal, so if it were legal in sub- stance the words used would not be laid hold of to defeat the contract. There- fore an agreement for the sale of an estate at a certain price, payable by in- stalments upon given days, with illegal interest, was held not to be usurious ; on the ground that, though the word •' interest" was used, the whole amount agreed to be paid was in fact part of the purchase-money. (Beatc v. Bidgood, 7 B. & C. 453.) Where a contract was on the face of it usurious, but the defect was shown to have arisen from an error of the agent employed or other\vise accidentally, the matter was not Mdthin the statute of Anne (Buckley v. Guildbank, Cro. Jac. C78 ; Nevison v. Whitley, Cro. Car. 501 ; Glasfurd v. Laing, 1 Camp. 149 ; Ballard v. Oddey, 2 Mod. 307) ; and on proof of the circumstances, a court of equity would give relief by reforming the instrument, even after it had been declared bad for usury at law. (Hodg- kinson v. W}'att, I) Beav. 56G.) It was said at law (Ballard v. Oddey, 2 Mod. 307), that a contract must be in itself usurious, and was not made so because the creditor took more than was allowed ; so that if there were a mortgage for lOOZ., with a proviso to be void on payment of lOGZ. at the end of the year, and no covenant that the mortgagor .should take the profits until default ; although the mortgagee was thus strictly entitled both to interest and profits, yet if this were not ex- pressed the agreement was not usury. And courts of law considering them- selves bound to read an agreement, so that it shall (Le Grange v. Hamilton, 4 T. R. G13 ; 2 PI. Bl. 144 ; 5 T. R. 367) be legal, if they can do so, professed an inability to make even the simple calculation necessary for the conclusion, that the sale of an annuity of 20^. for sixty years, at the price of 200^., was on the face of it usurious. (Ferguson V. Sprang, 2 Camp. 576.) Courts of equity generally only set aside usurious contracts, on the terms of payment of what was really due with legal interest (Scott v. Nesbit, 2 Cox, 183 ; 2 Bro. C. C. 640); for the statutes did not extinguish the debt, but only precluded the remedy. ( Stanton v. Knight, 1 Sim. 482.) So a fair debt re- mained good, though a subsequent usurious contract were made respecting it. (Gray v. Fowler, 1 H. Bl. 462 ; see also Packer v. Ramsbottom, 3 B. & C. 257 ; Wood v. Grimwood, 10 B. & C. 679.) It has, however, been said (Bel- cher V. Vardon, 2 Coll. 162), that the principles applicable to the redemption of valid securities did not apply in every respect to cases of usurious con- tracts ; and where the plaintiffs sued as assignees of a bankrujjt, they were held entitled to relief, on the terms of al- lowing a proof under the fiat against the bankrupt's estate, for the amount fairly due. Where an equitable mortgage by de- posit of deeds was void for usury, the possession which the mortgagee had under the usurious contract being con- tinued would uphold a parol agreement for a fresh deposit under a non-usurious contract, against the Statute of Frauds, just as if upon the making of the new agreement the deeds had been returned to the mortgagor, and re-delivered by him to the mortgagee. (James v. Rice, Kay, 231, on app. 18 Jur. 818 ; 5 De G., M. & G. 4G3.) The court would decree money over- paid, in pursuance of an usurious con. -WIIF.N INTEREST CEASES. 041 terest beyond that day ; but where the omission arose from a mistake, and the mortgagor also neglected to attend, the mortgagee was not compelled to wait another six months ; but a new time was fixed for payment at the end of ten days (A). 1691, Interest will cease to run upon the mortgage debt from the time at which a proper tender of the Avhole amount due is shown to have been made (^). But it ought to appear, that, from the time of the tender, the money was kept ready by the mortgagor, and that no profit was afterwards made of it ; upon proof of the contrary whereof the interest will still ruu(/^). And there must be an actual tender of the money due (I) (1383). The court will not stay the interest on proof of a proposal by the mortgagor, where money is due to him from the mortgagee on another account between them, to satisfy the mortgage by deducting the sum due thereon from the other debt (7/0' Executors who refuse a proper tender on the ground that they have not proved the will can demand no further interest, because they may receive the money before probate {n). 1692. If the right to redeem be disputed, and an in- quiry becomes necessary, the mortgagee is not to lose his interest, pending the inquiry, although a tender have been made (o). tract, to lie accounted for, notwith- 598. standing the agreement of the oppressed (A') Lutton v. Eodd, supra ; Gyles party to allow such payments. (Bosan- v. Hall, 2 P. Wms. 379. quet ;•. Dashwood, Forr. 38.) (Z) Church v. Bishop, 2 Ves. 371. (/() Lord ^lidleton v. Eliot, 15 Sim. (m) Garforth v. Bradley, 2 Ves. 531; llJur. 743; Hughes r. Williams, C75. Kay, Api). IV., and form of order (») Austin v. Dodwell's Executors, there. 1 Eq. Ca. Ahr. 319. (0 Lutton V. Rodd, 2 Ch. Ca. 20G ; (o) Sharpnell v. Blake, 2 Eq. Ca. Robarts v. Jeffcry, 8 L. J. (Ch.) 137 ; Abr. 604. Cliff V. Wadsworth, 2 Y. & C. C. C. 942 mortgagee's right to costs. CiLvrTEK XII. Part III.— Of Accounts of Costs. 1693. Of the General RigU of the 3Iortgagee to Costs. 1709. Of the Costs vndcr a Decree for Sale. 1712. Of the EqnitaUe Mortgagee's Right to Costs. 1719. Of the Costs of the Inciimbranoers under the Lands Clauses Consolida- tion Act. 1721. Of the Mortgagee's Right to Costs and Expenses disbursed. 1737. Of the Mortgagee's Liability to Costs incurred by the Loss of the Deeds. 1738. Of Costs arising out of Assignments pendeiite lite. 1739. Of the Costs of Re-conreyance. 1747. Of the Right of disclaiming Parties to Costs. Y!b1. Of adding Costs to the Debt after Decree. 1759. Of Solicitor's Costs. 1762. Of Costs upon staying Proceedings. Of the general Right of the Mortgagee to Costs. 1693. It is a general rule, concerning the costs of suits for redemption, and for foreclosure, or otherwise relating to questions between the mortgagor and mortgagee, that the latter is entitled to be repaid such of the costs as originally fall upon himself; and they are accordingly added to the amount due upon his security, and with the principal and interest form part of a single debt, and are all payable in the same priority. And the Court of Chancery, assuming a jurisdic- tion over the whole subject-matter of the security, in like manner suffers the mortgagee to add to his debt all such costs as have been incurred by him in any action of ejectment, or other proceeding at laAV, for the recovery of the estate, or for the establishment or defence of the mortgage title (jo) (1721). So costs incurred in respect of one estate may be added to the debt due upon another, of which redemption is decreed ; as where i^q) a mortgagor sought to redeem two estates, upon (^) Dctillin V. Gale, 7 Vcs. 58.3 V. Trecothick, 2 Ves. & B. 181 Barnes v. Racstcr, 1 Y. & C. C. C. 403 cumbrancer have also been given to the debtor in a suit in equity, in which the securities wore set aside. (Stanley «>, Dunstan v. Patterson, 2 Ph. 341 ; Lord Bond, Jur. 423.) Midleton v. Eliot, 15 Sim. 531. The {q) Batchelor v. Middleton, 6 Hare, costs of proceedings at law by an in- 86. mortgagee's RiGnx TO COSTS. fjir; only one of which redemption was decreed, such of the costs as related to the estate, in respect of which no relief was granted, were added to the amount due upon the rcdeemal>le security, although the plaintiff sued in forvid pauperis. And if one of two mortgagees file a bill for foreclosure, the other being a defendant, the decree will direct foreclosure on default of payment of the whole debt, and the costs of both mort- gagees (/•). 1694. A person in whom the mortgagee's interest in the security has become vested, such as a judgment creditor, (and a fortiori where there is an absolute assignment,) is sub- stituted for him in respect of the right to costs. And where the equity of redemption is vested in trustees, to sell, and pay off the mortgage, and dispose of the surplus, the judg- ment creditor of the mortgagee, suing for a sale, is en- titled (.s) to be paid his debt and costs in priority both to the mortgagee and the owners of the equity of redemption, and subject only to the costs of the trustees. 1695. Defendants in suits to set aside unconscientious dealings with reversions and on post-obit securities were for- merly considered, in respect of their right to costs, as mort- gagees {t). There appears now to be no imperative rule, but the plaintiff will be made to pay the costs occasioned by charges of fraud which he does not substantiate {u). It seems that if a bill to foreclose be dismissed, in a case where the existence of a right of foreclosure is doubtful, as on a security in the nature of a Welsh mortgage (13), the dismissal should be without costs {x). 1696. Althouo;h the morti;ao;or himself is bound to indcm- nify the estate against expenses incurred in protecting the title, so long as the equity of redemption remains with him {y), yet as against a puisnt mortgagee, or other pur- chaser or trustee of the equity of redemption, the first mort- (?•) DaTenport ?•. James, 7 Ilarc, G. 55 ; St. Albyn r. Harding, 27 Bcav. 249. 11 ; Foster v. Roberts, 20 Bcav. 4(:7. (.«) Clare r. Wood, 4 Hare, 81. (.r) Teulon r. Curtis, Younge. 610. (^) Bowes r. Heaps, 3 Vc3. & B. 117; (y)LaDgton v. Langton, IS Jur. Marsack v. Reeves, 6 Mad, 109. 1092 ; rev. on principal point, 1 Jur., (m) Edwai-ds v. Burt, 2 De G., M. & N. S. 1078, 944 WHEN MORTGAGEE BECOMES gagee has generally uothing beyond the common right of adding the costs to his debt (z) : even though expenses have been incurred by the argument of a question raised by the puisne mortgagee, which was not material to the merits of the cause, though the costs occasioned by an unsuccessful objec- tion to the mortgagee's right to sue may be thrown on the defendant (a), and so may the costs of a suit which the incum- brancer has been obliged to institute by reason of subsequent dealings with the estate by the owner of the equity of re- demption without giving notice of the charge (Z»). 1697. Though costs thus naturally follow the redemp- tion, it may be that where the right to redeem is disputed, and the question is doubtful, no costs will be given on either side (c). And there are several exceptions to the rule, under which a morts-affee is entitled to add his costs to the debt, which extend, not merely to deprive him of that right, but also to compel him to pay costs. But the court departs from the general rule with same reluctance, and seems formerly to have even doubted its power to throw costs upon the mort- gagee. Thus, in an early case {d), Parker, J., sitting for the Chancellor, said it would be going too far to make a mort- gagee pay the costs of the suit, though he had set up as an absolute conveyance an instrument, which, by a writing under his own hand, he had admitted to be only a security, and the mortgagee's own right to costs only was held to be forfeited. And even Lord Eldon is said to have thought (e), that there was no instance in which such an order had been made against a mortgagee, though he soon after alluded to a case (/) in which it had been done. The jurisdiction has now for a long time been fully established. But the mortgagor's claim that the mortgagee shall pay the costs, should be included in the (z) Frazcr v. Jones, 5 Ilarc, 475 ; (d ) Franklyn v. Fern, Bam. Ch. 30. Philips V. Davies, 7 Jur. 52. (e) 7 Ves. 586. (a) Tildesley v. Lodge, 3 Jur., N. S. (/) Shuttleworth v. Lowther, cited 1000. 7 Ves. 586 ; and see Baker v. Wind, 1 (J) Wise V. Wise, 2 Jo. & Lat. 403. Ves. 160. (c) Kirkham v. Smith, 1 Ves. 257. LIABLE TO PAY COSTS. 945 inquiry as to the amount due, for otiierwise the court will not attend afterwards to evidence upon the subject {g). 1698. The order for payment of costs by the mortgagee is not necessarily an order for personal payment ; he may be allowed to add the costs to his debt (/*), or they may be set off against the amount payable to him in respect of his debt (z) ; and when such costs become payable in a -puisne mortgagee's suit to redeem, the uncertainty whether he Avill do so when the accounts are taken is a reasoYi for setting off the costs against the debt of the prior mortgagee, who is ordered to pay them (A). 1699. A direction in the decree to tax the mortgagee the costs of the suit, amounts to a direction to pay him his whole costs, without exception as to any part of the cause ; and Avill be so construed, although the mortgagee, by holding over after payment, have made the suit necessary, and although he have raised an improper defence (Z). The objection to the form of decree should be made at the hearing, for the court will not, on grounds which might then have been urged, review the taxation {vi). 1700. Where a mortgagee, plaintiff in a foreclosure suit, dies, having made himself liable to costs, and his executors, without revmng, file a new bill for foreclosure, the court will give them no costs in the second suit unless they pay the testator's costs in the first ; though it will not stay proceedings or refuse a decree in the second suit, until payment of those costs (n). 1701. Where the costs of the suit, or part of them, would have been thrown upon a mortgagee, being solvent, if he be insolvent, and, therefore unable to pay, he shall not receive any general costs (o). 1702. The power of giving costs against the mortgagee (<7) Dunstanr. Patterson, 2 Ph. 311; (/) QuarrcU v. Beckford, 1 Mad. Wright i\ Jones, C. P. Cooj). 403. 2r,0; "Wilson v. :Metcalfe, 1 Russ. r)3(). (A) Pelly V. Wathen, 7 Hare. 372. (/«) Price i\ M'Beth, 10 Jiir., N. S. (i) Banks v. Whittall, 1 De G. & S. 579. 541 ; West r. Jones, 1 Sim. N. S. 218. (n) Long v. Storie, 9 Hare, 542. Qt) Whcaton v. Graham, 24 Beav. (o) Eider v. Jones, 2 Y. & C. C. C. 483. 335. 946 AVIIEN MORTGAGEE PAYS will be exercised, Avhere the mortgagee bas been guilty of gross misconduct or oppression, or even where, without im- proper motives, he has caused expenses to be incurred which cannot justly be thrown upon the mortgagor. Therefore, if the mortgagee set up an unjust defence (/»), or resist a bill to redeem on the ground of a foreclosure, collusively obtained, or, it seems, if he resist any just claim to redeem, he will be liable to so much of the costs as his improper conduct has caused, though he will be entitled to the ordinary costs of redemption (q). And if the contract under which he claims be illegal (r), or if he have been guilty of ill conduct in attempting to deprive another of the benefit of his security, by a dealing behind his back, he may be refused his costs (s). The like order has been made where a mortgagee, whose pre- sence was necessary to complete the redemption, and might have removed the difficulty which caused the suit, neglected to attend at the appointed time and place ; though, not having actively opposed the redemption, he was not ordered to pay costs (t). 1703. A mortgagee will also be made to pay the costs occasioned by a claim which he makes, but fails to establish, or by charges of fraud or connivance which he cannot sub- stantiate (u) ; or of a suit by a puisne mortgagee for an account of the produce of a sale, if the defendant have refused to ac- count and the balance be found against him {x), as well as of inquiries into the mortgagor's claim for dilapidations, and of evidence of the mortgagee's refusal to account ; or he may be deprived of his costs to the hearing ( ?/). But he will not be (^) Mocatta v. Murgatroyd, 1 P. TVms. 393 ; Baker 7?. Wind, ] Vcs. 160 ; and see Thomton v. Court, 4 I)e G., M. & G. 293 ; England v. Codring- ton, 1 Ed. 1G9. (q) Harvey v. Tcbbutt, 1 J. & W. 197 ; Price v. Bcrrington, 7 Hare, 394 ; see Harryman v. Collins, 18 Jur. 501 ; 18 Beav. 11; and see Malone v. Geraghty, 3 Dru. & War. 248, 250 ; 1 H. L. C. 81. Ch. 112. (s) Taylor v. Baker, Dan. 82. (0 Cliff V. Wadsworth, 2 Y. & C, C. C. 598. (u) Montgomery v. Calland, 14 Sim. 79 ; Cockell v. Taylor, 15 Beav. 127 ; Green v. Briggs, 6 Hare, 632 ; West ?', Jones, 1 Sim., N. S. 218. (a?) Tanner v. Heard, 23 Beav. 555 ; see 3 Jur., N. S. 427. (y) Sandon v. Hooper, 6 Beav. 246 ; (r) Johnson v. Williamshurst, 1 L. J., Powell v. Trotter, 1 Dr. & Sm. 388 OR IS DISALLOWED COSTS. 947 ordered to pay, or forfeit his rigiit to, costs in the absence of misconduct, by merely extending^ his claim beyond that to Avhich the court adjudges him to be entitled (z), or by stijju- lating that the accounts required shall be furnished at the costs of the mortgagor where they are of a special nature («). Nor will he be made to pay the costs occasioned by a dispute as to a fact, where the court gives so much Aveight to the mortgagee's objection as to direct an issue, although the result be against him (Z>). 1704. It is the duty of the mortgagee so to choose his remedy as not to incur unnecessary costs. Where a suit was not originally commenced as, but was afterwards turned into a foreclosure suit, so much of the costs as were incurred before it assumed that form, including the costs of the trial of an issue, by which the plaintiff was found to be mortgagee, were thrown upon him ; the bill in its original fonn having been liable to be dismissed with costs (c). And a mortgagee who files a bill for foreclosure in Ireland (Avhich results in a sale) (941), will not generally be allowed more costs there than if he had taken the less expensive remedy under the bankruptcy; but it seetns that he will not lose his full costs by refusing to abandon his suit commenced before bankruptcy, though the assignees offer him all the costs already incurred (d). So of particular costs incurred by the mortgagee in the suit unnecessarily ; as on the refusal of a motion to dissolve an injunction restraining an action at law (to which injunction the plaintiff is clearly entitled), the costs of which have been thrown upon the defendant, although, according to the usual practice, the costs of such motions are costs in the cause ; and where the mortgagee, applying for sale in bankruptcy and for (z) Loftus I'. Swift, 2 Sell. i<t Lef. G. 728. 657; Alexander v. Simms, 20 Beav. (h) Wilson r. Metcalfe, 3 Mad. 4.5. 123 ; but see Sporle v. Whayman, 20 (c) Smith r. Smith, Cooper, 141 ; Beav. 607; 24 L.J. (Ch.) 789, where Briant r. Lightfoot, 1 Jur. 20; Phil- a mortgagee entitled only to a memo- lii)s r. Davies, 7 Jur. 52. randum of deposit required a legal (^) Hofxan r. Baird, 4 Dru. & War. mortgage and no costs given to either 296 ; Bernard r. Sadlier, 4 L-. Eq. li, party. 6L (o) Norton v. Cooper, 5 De G., M. & 948 WIIEX MORTGAGEE BECOMES the costs of an action at law, Avas refused them, because by proceeding with the action he Avould have recovered the costs at LawT^'). 1 705. The costs incurred by an improper joinder of parties, whether as plaintiffs or defendants, must be paid by the mort- gagee (/). Thus a bill for sale, in which prior annuitants (1030) Avere joined, was dismissed as against them with costs, though they appeared at the hearing and consented ; because the sale ought to be made subject to their annuities (^). And where subsequent incumbrancers were brought forward by the first mortgagee, Avith power of sale in a suit for sale under the decree of the court, and they appeared and consented, their costs were given out of an estate insufficient for payment of the first mortgage (/*). But in a case in Ireland, Avhere the executor of a mortgagor was made a defendant to a fore- closure suit, there being no personal assets of the deceased, and a deficient fund, it Avas stated and held to be the practice not to give such costs to the prejudice of incumbrancers (i). The devisee of a mortgagee, who made the heir a party to his foreclosure suit to establish the aa^II ao;ainst him, was ordered to pay the heir's costs, and not to have them over against the estate (j). 1 706. Again, if the mortgagee refuse a proper tender, or proceed after payment of all that is due, he does so on peril of paying the costs incurred after the payment or tender (k), whether it were made before or after the filing of the bill, and Avhether by the mortgagor or one representing him, or by (e) Marsack v. Reeves, 6 Mad. 109 ; the reason given is not satisfactory. Ex parte Fletcher, Mont. 454 ; Cocks (k) Shuttle worth v. Lowther, 7 Ves. V. Stanley, 4 Jur., N. S. 942. 586 ; Cliff v. Wadsworth, 2 Y. & C. C. (/) Pearce v. Watkins, 5 De G. & C. 598 ; Harmer v. Priestley, 16 Beav. S. 317 ; Booth v. Creswicke, 8 Jur. 509 ; Morley v. Bridges, 2 Coll. 621 ; 323. Gregg I'. Slater, 22 Beav. 3 14. And to (ff) Delabere V. Norwood, 3 Svir. 144, save the expense of coming to the note, and see Horrocks v. Ledsam, 2 court on further consideration, a direc- Coll. 208. tion that the mortgagee shall pay the (h) Cooke V. Brown, 4 Y. & C. 227; costs, if the sum due does not exceed Alston V. Parker, 5 L.J. (N. S.), Ch. 3. the tender, may be added to the decree (i) Grace v. Lord Mountmorris, 2 at the hearing. (Hoskcni?. Simcock, 11 Dm. & W. 432. Jur., N. S. 477.) (j) Skipp v.Wyatt, 1 Cox,352. But LIABLE TO PAY COSTS. 949 a puisne incumbrancer (/). And where tlie plaintlfr in a re- demption suit offered to pay the amount found due by the report, with costs to that time, which the defendant refused to accept, the latter was ordered to be paid the costs only up Id the date of the report ; and it seems to have been merely because the case was new, that the defendant was not ordered to pay all the subsequent costs (m). But if the mortgagor make no tender, but only state by his answer that he Avas willing to pay so much as he considered to be due, before the institution of the suit, he will not save the costs, although at the hearing he succeed in establishing his case as to the amount due (?/)• Where a tender has been made and refused, the application, that the mortgagee may pay the subsequent costs, may be made either by motion or petition at the hearing, supported by affidavits of the tender and refusal (o). 1707. If the mortgagee file a bill of foreclosure, and upon taking the accounts it be shown that nothing was due at the filing of the bill, or if he drive the mortgagor to institute a suit under like circumstances, he must bear {p) the whole expense of the suit ; and so if the costs be only occasioned in part by the accounts and inquiries relating to the mortgage debt, and the mortgagee have suppressed facts, a knowledge of which would have led to the discovery that he was overpaid (such as the fact that he has been in possession) ; or if, being a defendant, he deny by his answer that he is satisfied, when nothing remains due, he must pay the costs of so much of the proceedings as have been caused by his denial or false sug- gestion {q). So where, knowing that he is already overpaid, the creditor contests the mode of taking the accounts and fails (/•) ; or causes subsequent proceedings by keeping money (Z) Smith I'. Green, 1 Coll. 564 : so hearing. (9 Jur., N. S. 886.) decided, although the decree is ex- (o) Sentance v. Porter, supra, pressed to be by consent. And see (/;) Biuniugton r. Ilarwood, T. & S. C. 2 Col. G26, n. K. 477 ; Monis v. Islip, 23 Bcav. 244; (m) Sentance v. Porter, 7 Hare, 426. O'Neill v. Innes, 15 Ir. Ch. E. 527. (>t) Hodges V. Croydon Canal Coin- {q) Montgomery v. Calland, 14 Sim. pany, 3 Beav. ^G ; Gammon v. Stone, 79 ; Snagg v. Frizcll, 3 Jo. vt Lat. 1 Ves. 339. And see Broad v. Selfe, 383. where, under the circumstances, no (r) Skirrett v. Athy, 1 Ba. & Be. costs were given on either side to the 434. 950 mortgagee's eight to costs in his bands a long time after his right to receive them, as mortgagee in possession, has ceased {s) ; he will be allowed such costs only as arose whilst he filled the character of a creditor, and must pay the rest. But prima facie, the mort- gagee in possession has a right to the costs of a suit instituted to take the account, and it is not merely because there is a difficulty in taking it, not occasioned by his misconduct, or because the result is against him, that he will be deprived of his costs {t). Neither Avill this be done, Avhere he is found to have been overpaid, though he have insisted that a large sum remained due to him, if the decree have been made to include costs in the usual form (u). 1708. A person who, whether his true character be that of a mortgagee or not, places himself in the position of an accounting party, and so undertakes a duty which he cannot perform, by reason of the loss of vouchers for sums which he has paid, will not have the costs of taking the accounts {x). Of the Costs under a Decree for Sale. 1 709. The decree for the sale of an incumbered estate does not of itself alter the rights of the parties, but the purchase- money being considered to be substituted for the estate, the produce of each separately incumbered estate will be treated in the same manner as the estate (y), and each incumbrancer will be paid his costs, including the costs of the petition for payment to him of the produce of the sale, together with his principal and interest, according to priority; and the costs of the sale will not in the first place, without a special direction, be paid out of the general fund (z). The mere (s) Archdeacon v. Bowes, 13 Price, have two charges he takes all his costs 353. with the first. But in Ii-eland the prac- (^) Snagg V. Frizell, 3 Jo. & Lat. tice is to give the costs of the puisne in- 383. cumbrance in priority with it (Handcock (w) Gilbert v. Golding, 2 Anst. 442. v. Handcock, 1 Ir. Ch. R. 444. In some (x) Price V. Price, 15 L. J. (Ch.) 13. recent cases it has been held or intimated (?/) Upperton v. Ilan-ison, 7 Sim. that the actual costs of the sale ought 444 ; Chis.sum v. Dewes, 5 Russ. 29 ; first to be paid out of the proceeds, be- Bames v. Racstcr, 1 Y. & C. C. C. 401 . cause the mortgagee must have incurred So Belchier i-. Butler, 1 Ed. u23; Wild them if he had instituted a suit to V. Lockhart, 10 Bcav. 320. realize his security. (Dightonu.Withers, (z) And if the first incumbrancer 31 Beav.423 ; BeiTy v. IIebblethwaite,4 UNDER DECREE FOR SALK. iiol consent of the mortgagee to the sale will not deprive him of his priority in respect of costs, so long as he insists upon his right against the mortgaged estate ; whether that consent be given in a redemption or foreclosure suit, or in a suit (whether the mortgagee be or l)e not a party thereto) for the general administration of the mortgagor's estate («) ; or in a suit for carrying out the trusts of a deed, to which the incumbrancer is not a party, for sale of the estate and pay- ment of the costs of the trustees, and then of the incumbran- cers according to their priorities (Z<) ; provided that the mort- gagee so consenting be not actively seeking his remedy against the mortirao-or's general assets. For if he come in under a suit for administering the whole of the mortgagor's estate, including property (however small) which is not included in his own security, and a fortiori if he commence or file a bill for the further prosecution of such a suit; the costs of the sale and of the suit will be treated as costs of administration, and all parties w'ill be paid costs in the first instance ; after which the produce of the mortgaged estate will be paid to the mortgagee according to his priority, and as to the rest of his claim he will be paid pro rata with the other creditors in equal degree (c). The same rule has been follow ed w^here a mort- gagee, being defendant in an administration suit in which the amount of his mortgage was the subject of inquiry, claimed a much larger sum than was found due ; upon the principle that K. & J. 80; andseeTucklcyt;. Thomp- («) Hcpworth v. Heslop, 3 Hare, son, 1 J. & 11. 126, but see S. C. ou 485; Armstrong r. Storer, UBeav. 535; app. 20 L. J., N. S., Ch. 548 ; and per and see In re Marine Mansions Corn- Turner, L. J., in Ward i: Mackinley, pany, L.K., 4 Eq. 601, where debenture 2 De G., J & S. 363; 10 Jur., N. S. holders upon the general property of 1063.) It is questionable if this ought the company came in under a winding- to be done, because the suit and sale up order, and were paid out of the fund, are for the benefit of the general estate, after deducting only the costs of reali- and the mortgagee consents to the sale zation. at the instance and for the bcnctit of (/y) Crosse v. General Reversionary the owners of the estate, where he might and Investment Society, 3 De G., M. & otherwise have been content to rest G. 698. upon his security. (c) Brace v. Duchess of ilarlbo- If the decree have directed that the rough, Mos. 50 ; Tipping v. Power, 1 proceeds of the sale shall be paid to the Hare, 405; Armstrong v. Storer, 14 mortgagee, the costs of the sale canuot Beav. 535 ; Ford c. Earl Chesterfield, afterwards be deducted. (Id.) 21 Beav. 426. 952 COSTS OF EQUITABLE MORTGAGEE. in a foreclosure suit, if the mortgagee claimed too much, the costs would have followed the result (d). Where, however, a puisne incumbrancer, either by a suit to ascertain the priorities or by proceeding in a dormant suit, is the means of securing and distributing a fund for the benefit of all the incumbran- cers, his costs of the suit or proceeding Avill be paid before the other charges on the fund, though it be no administration suit (e). 1710. A suit by a cestui que trust against the trustees and mortgagees of the trust fund, in which the title of the plaintiff and the priorities are disputed and inquired into, is a suit for administering the trust estate in Avhich the costs of all parties will first be paid out of the fund, and not a mere suit for re- demption (_/); although the bill originally prayed for payment of the first mortgagee's debt, and of the residue to the plaintiff. But in a suit for foreclosing a mortgage of a term, the mort- gagee retains his priority as to costs, though by agreement the reversion be included in the sale (y). 1711. The owner of a share of an estate and his incum- brancers have but one set of costs, which goes to the first incumbrancer (h). Of the Equitable Mortfjafjee's Right to Costs. 1712. An equitable mortgagee, whether with or without a memorandum of deposit, has the same right in equity to add his costs to his debt as a legal mortgagee (z); and so has a solicitor who establishes a lien for costs upon documents in his possession {k). But the principle does not apply to the case of a solicitor taking a security for his unsettled account, id) Whiter. Gudgeon, 30 Beav. 545. (^) Cutfield v. Eichards, 26 Beav. But it is not said that there was a 241: but see Macrae ^. Ellerton, 4 Jur., tender, and it seems that without a n. S. 967. tender, the mortgagee would not have (A) Remnant u. Hood, 27 Beav. 613; lost his costs in a foreclosure suit Equitable Insurance Company v. Ful- (1706). Icr, 7 Jur. N. S. 307. (e) White v. Bp. of Peterborough, (i) Queen v. Chambers, 4 Y. & C. Jac. 402; Ford v. Earl Chesterfield, 54. Lewis v. John, 9 Sim. 366; Con- supra; Wright V. Kirby, 23 Beav. 463 ; nell v. Ilardie, 3 Y. & C. 582 ; Wade Ihler V. Davies, V. C. S. 9th July, ^,. Ward, 4 Dr. 602. 1864. (7i) Pelly V. Wathen, 7 Hare, 372. (/) Bryant v. Blackwell, 15 Beav. 44. IN EQUITY AND IN BANKRUPTCY. 953 whore the charges are shown to Ije excessive ; these costs not being: the result of the debtor's endeavour to release his estate from a just demand, but of establishing the fact that he has been overcharged (/). The solicitor therefore will pay so much of the costs as relates to the question of the fairness of his bill. 1713. Where the mortgagee petitions for a sale in bank- ruptcy {m), it is necessary (unless there be a special custom to the contrary (n) ) that he shall have taken a memorandum of deposit as evidence of his equitable security ; for if he have neglected to do so he will be obliged to pay all the costs of the petition, including the costs of the assignees' appearance thereon ; and the mortgagee has no right to costs, even though it was not his fault, but that of the bankrupt, that no proper mortgage or evidence of security Avas given (o). Such costs must be paid by the mortgagee personally, and not out of the produce of the sale (p). On the other hand, if the assignees raise objections on frivolous or mistaken grounds, they will only have costs out of the general estate, or may be made to pay the costs which arise out of their improper opposition ((7). 1714. The memorandum will not carry costs where the security is extended to a larger sum than that originally spe- cified ; nor Avhere it extends to property not included in the memorandum ; nor where a loan is made upon deposit of as;reements for leases, and the leases being afterwards exe- cuted are deposited without a new writing ; but the costs will be allowed if part only of the deposited documents be given up, and others substituted for them (r). 1715. The memorandum need not be contemporaneous with (l) Dctillin r. Gale, 7 Vcs. 5S3. (ot) Ex parte Barelay, 5 De G., M. & G. 403 ; Ex parte Home, 1 Mad. 622 ; Ex parte Trew, 3 id. 372 ; Ex parte Briirhtwcn, 1 Sw. 3; Buck, 148 ; Ex parte Robinson, 1 Dca. & Ch. 119; Ex parte Sikes, Buck, 349. Where there was a memorandum with a verbal ex- tension the costs were apportioned. (Ex parte Ford, 3 M., D. &: De G. 457.) («) Ex parte Moss, 3 De G. & Sm. M. VOL. II. 599 ; see Ex parte Shcppard, 2 M., D. & De G. 431. (o) Ex parte , 2 Mad. 281. ij>) Ex parte Home, 1 Mad. C.22. (q) Ex parte Iloi-ne, supra ; Ex parte Bate, 1 Mont. & C. 58. (?■) Ex parte Anderson, 3 De G. & S. GOO ; Ex parte Robinson, 1 D. & C. 119 ; Ex parte Pigeon, 2 D. & C. 118 ; Ex parte Cobhara, 3 Dea. 609. 3 Q 954 ]\iortgagee's costs in bankruptcy. the deposit, nor of a formal nature ; and if it sufficiently show the purpose or terms of the deposit, it is not inoperative by reason that it requires parol explanation (s). But a mere receipt by the debtor, written on the creditor's direction to an agent to advance the loan on a deposit of documents, is in- sufficient (^); and it is necessary that the memorandum be signed or written by the debtor or his agent {u). 1716. Where the written memorandum was lost, and not admitted by the assignees, an inquiry was directed as to the fact, nature, and object of the deposit, and whether a memo- randum was signed; and upon a report that it was lost, costs were given as in the case of a written memorandum ; except that the petitioner was to pay so much of his own costs and of the costs of the assignees of and occasioned by the applica- tio7i, as had been incurred by the loss of the memorandum {x). 1 71 7. The equitable mortgagee, who is entitled to the costs of an application for sale in bankruptcy, also has the costs where the same application is for leave to bid (?/). But where the mortgagee makes a separate application for leave to bid, he must pay the costs of it, unless the petition were presented at the request or by the consent of the assignees (z). And if he have caused unnecessary expense the costs will not be allowed merely because the assignees consent (a). 1718. If the mortgagee become the purchaser of the es- tate, he must pay the assignees all expenses attending the sale which they might properly have deducted from the purchase- money, though the price was insufficient to cover the mort- gage debt (i). («) Ex parte Re)Tiolds, 2 M. & A. G. 297. 104; 4 Dca. & Ch. 278; Ex parte Rcid, (//) Ex parte Berkeley, 4 D. & C. Mont. & M. 114 ; Ex parte Smith, 1 ,'572; 2 M. & A. 54. M., D. & De G. 1C5 ; Ex parte Corlett, (z) Ex parte Robinson, 1 Mont. &■ M. id. 089 ; Ex parte Vauxhall Bridge 261 ; Ex parte Williams, 1 D. & C. Company, 1 Gl. & J. 101; Ex parte 489; Mont. 514 ; Exparte Coort, 7 Jur. Bisdee, 1 M., D. & De G. 333. 8G4. it) Ex parte Powell, 6 Jur. 490. (a) Ex parte Danks, 12 L. J., N. S. (m) Ex parte Emmerton, 3 D. & C. Bky. 45. 654; Ex parte Reid, 1 D. & C. 250. (b) Bowles v. Pcrring, 5 Moore, 290; («) Ex parte Rodgers, 3 il., D. & De 2 B. & B. 457. COSTS UNDER LANDS CLAUSES ACT. 955 Of the Costs of Incumbrancers under the Lands Clauses Consolidation Act. 1719. The rights of incumbrancers upon lauds, taken by public coniiianies, to costs, -when application is made to the Court of Chancery for investment of the purchase-monies, are governed by sect. 80, of the Lands Clauses Consolidation Act (c), which provides that in all cases of monies deposited in the bank under the provisions of that or the special act, or an act incorporated therewith, except where such monies shall have been so deposited by reason of the wilful refusal of any party entitled thereto to receive the same, or to convey or release the lands in respect whereof the same shall be payable, or by reason of the wilful neglect of any party to make out a good title to the land required, the Court of Chancery may order the costs of the following matters, including therein all reasonable charges and expenses incident thereto, to be paid by the promoters of the undertaking, (that is to say) the cost of the purchase or taking of the lands, or which shall have been incurred in consequence thereof, other than such costs as are therein otherwise provided for, and the costs of the investment of such monies in government or real securities, and of the reinvestment thereof in the purchase of other lands, and also the costs of obtaining the proper orders for any of the purposes aforesaid, and of the orders for the pay- ment of the dividends and interest of the securities upon which such monies shall be invested, and for the payment out of court of the principal of such monies or of the securities whereon the same shall be invested, and of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimants. 1720. Incumbrancers upon the interest of a tenant for life or jointress ai-e not entitled to the costs of appearing to consent to the investment (</), unless they have been served at the suggestion of the company, or under other special cir- (p) 8 Vict. c. 18. 150 ; In re Webster, 2 Sm. & G. (fZ) Ex parte Smith, 6 Railw. Ca. App.VI. 3 Q 2 956 COSTS UNDER LANDS CLAUSES ACT. cumstances {e) ; nor are incumbrancers upon the corpus of the estate, whose debts are to be paid off out of the fund in court (/), or whose incumbrances have been created after the land Avas taken, and the money paid into court (cf). But costs have been given to the incumbrancer paid off, out of the money in court, where the security was a charge created by a will (A) ; and the company pays the costs of the mort- gagee, where he appears on an application to invest the purchase-money otherwise than by payment of his mortgage debt {i). The costs of applying the purchase-money in discharge of incumbrances on other parts of the estate, not being specially mentioned in the act, are not allowed against the company (A). The exception in the act, as to costs occasioned by litigation between adverse claimants, applies to the costs of an addi- tional application occasioned by disputes between the owner and his incumbrancers (/). Of the Mortgagee's Right to Costs and Expenses disbursed. 1721. Besides the costs of the suit, in which the mort- gagee's rights are immediately adjusted, as between himself and the owner of the equity of redemption, he has also a right to be repaid all costs and expenses, reasonably and properly incurred in ascertaining or defending his rights, or in recovering the mortgage debt, at law or in equity (m). (e) In re Ilungcrford, 1 K. & J. 413. were given by Kindersley, V.-C, In re (/) In re Hatfield, 7 Jur., N. S. 383; Lcglii, 2 W. R. 100. 29 Beav. 370 ; 32 id. 252. {I) In re Joliffe, 3 Jur., N. S. 633. ig) Re Middle Drainage, &c. Com- (w/) Godfrey v. Watson, 3 Atk. 517; missioners, Morg. & Davey, Costs, 200. Detillin v. Gale, 7 Ves. 583 ; Ellison v. (Ji) Ex parte Baroness Braye, 11 W. Wright, 3 Russ. 458 ; Dryden v. Frost, R. 333. 3 My. & C. G70. But where he acts as (/) In re Nash, 1 Jur., N. S. 1082 ; his own solicitor, he will only have Ex parte Peyton, 2 id. 1013 ; Egre- costs out of pocket in the matters in mont V. Thompson, cit. 28 Beav. 625; which he has so acted (Sclater v. Cot- In re Brooke, .30 Beav. 233. tam, 3 Jur., N. S. 030; Trice v. Davies, (A) Ex parte Corporation of Shef- V.-C. K. 10 June, 1862.) But this was field, 21 Beav. 162, L. C. Act; Ex a case of express trust. So where mort- parte Hardwicke, 17 L. J. (Ch.) 422 ; gagee was an auctioneer. (Thompsons, and In re Yeates, 1 2 Jur. 279, on similar Rumball, 3 Jur. 53.) clauses in private acts. But the costs COSTS AND EXPENSES DISBURSED. 957 Hence tlie costs of a foreclosure suit, pending which a suit for redemption is commenced by a puisne incumbrancer, -will be provided for in the latter suit(n), and the mortgagee will be allowed the costs of an ejectment suit (o), or of an action against the mortgagor's surety for the debt (/?), though the fruits of it be lost by the surety's insolvency ; as also the costs of defending the security against an action at law : and the mortgagee will not be held doA\Ti to the amount at which his costs were taxed at law {q). In like manner, the costs will be allowed to the mortgagee of taking out administration (r) to the mortgagor, or to a person interested under his will, as a necessary party (.s) ; or of obtaining a stop ordei*, in pur- suance of the mortgage deed, upon a fund in court, the sub- ject of the mortgage, unless the application were unneces- sary (t). But without the special direction of the court the taxing master will not alloAv the morto-aoree his costs of obtaining the stop order (m). The mortgagee's case for the allowance of costs of administration, or other extraordinary expenses incurred before the conmiencement of the foreclo- sure suit, ought to appear on the record and in the decree ; but the claim will be sufficiently supported by an allegation that other costs, charges and expenses have been properly incurred (a:). 1722. It is essential to the claim of the mortgagee, that his proceedings have been reasonable, for the allowance of the costs is in the discretion of the court (j/). And none will (?}) Ainsworth v. Eoe, 1-t Jur. 874. Ramsdent). Langlev, id. 53G. (o) Lewis )•. John, 9 Sim. 300 ; Ilor- (r) Ilamsden v. Lungley, supra, lock r. Smith, 1 Coll. 21)8 ; Saiulon v. (s) Hunt v. Fowncs, 9 Vcs. 70. Hooper, 6 Beav. 246, where plaintiff (t) Hoole v. Roberts, 12 Jur. 108. appears to be printed for r/(/<!'«<7a«f. («) Waddilove v. Taylor, 6 Hare, ( p) Ellison V. Wright, 3 Ru.ss. 4 j8. 307. The right to the costs of an action on (.r) Millard r. ilagor, 3 Mad. 433 ; the covenant against the mortgagor, ex- Ward v. Barton, 1 1 Sim. 534 ; Set. cept for this authority, was d.)ubted by 381, cd. 3; MciTiman v. Bonner, 10 Jur. Kinderslcy, V.-C. ; but the principle N. S. 534. Form of inquiry, 1 Set. stated appears clearly to cover it ; and 396, ed. 3. And if the decree give no the admission of the doubt would open direction, an inquiry may be directed on many well-settled questions as to mort- further consideration. (Thompson v. gagees' costs ; seeMerriuum i'. Bouner, Rumball, 3 Jur. 53.) 10 Jur., N. S. 534. ( y) As a general principle, where a (jr) Lomax v. Hide, 2 Vem. 184 ; person defends an action at law, and 958 COSTS OF USELESS LITIGATION. be given in respect of improper or useless litigation by the mortgagee ; as Avhere {z) having only a title in equity, he defends an action by the legal owner for the recovery of the estate ; or if he sue for rent in an action in the name of a person who has no right to sue (a) ; or Avhere {b) he sues a purchaser under the poAver of sale, for specific performance of the contract, if the bill, being dismissed with costs, appear to have been improper, and was not sanctioned by the mort- gagor ; though counsel have advised that the purchaser could not rescind the contract; or Avhere (c) the mortgagor having refused to redeem because the mortgagee has lost the title deeds, the latter brings ejectment. And where (c?) the legal estate, the possession of which gave the right to sue in eject- ment, had been obtained by a fraudulent transaction behind the back of a puisne incumbrancer, with notice of his right, the court refused to make any order as to the ejectment. An equitable mortgagee has also been refused the costs of a suc- cessful defence against an extent in aid (e). And even where a mort2:ag;ee succeeded in a second trial at law, having been defeated on the first, he was refused at law the costs of the first trial, on the ground that he Avould have succeeded then if the defence had been properly con- ducted {/). The mortgagee will have no costs as against the devisees of the equity of redemption, of an action against the mortgagor's executor, for recovery of money due from the mortgagor's personal estate (^). 1733. Neither will the mortgagee, being a trustee, be allowed the costs of a suit for recovery of the trust funds. afterwards resorts with success to equity, his opponent will not be saddled with costs both at law and in equity, but with the costs of one proceeding only. (4 De G., M. & G. 247.) (z) Dryden r. Frost, 3 Myl. & Cr, 670 ; 2 Jur. lO'JO. (a) Burke v. O'Connor, 4 Jr. Ch. R. 418. (h) Peers v. Cecley, 15 Beav. 209. (c) Lord Midleton v. Eliot, 14 Sim. S31. (d) Taylor v. Baker, Dan. 82. For the consequences to a solicitor of taking stejjs in the name of his client, the mortgagee, and from improper motives, to commence a foreclosure suit, see Re Barrow, 17 Beav. 547 and 5G0, n. (e) Ex parte Stephens, 2 M. & A. 31. (/) Holt V. Roe, 6 Bing. 447. (.7) Lewis V. John, 9 Sim. 366 ; C. P. Coop. 8. COSTS IN RESPECT OF SECURITY. 959 where they have been endangered by his own want of care, and the fraud of otliers ; nor will the costs of unnecessary parties to such a suit be thrown upon the fund, to the preju- dice of puisnt incumbrancers : for the trustee, being himself liable to replace the fund, the suit is considered to be for his own benefit (A). But a mortgagee of trust money was allowed the general costs of a suit to enforce his security, where the mortgagor had signed a receipt for the whole amount, without having received all of it, and part was lost by the default of the mortgagee's agent ; with whom the mortgagor had dealt, knowing that he w^as intrusted with the fund for the purposes of the transaction (?"). 1724. Although the mortgagee may have properly and successfully prosecuted an action at law, yet if previous de- crees have been made in equity, since the costs at law were incurred, without providing for their payment, and the costs at law arose in a proceeding between the same persons who were parties to the suit in equity, the court will not, while the former decrees stand unaltered, allow those costs to the mort- gagee at a subsequent hearing on further directions, under the head of just allowances (/e). 1725. Where the mortgagee is entitled to costs incurred in respect of his security, and upon bringing an action for them accepts in satisfaction money paid into court, he has no further claim upon the estate in respect thereof, nor in respect of the costs of an action at law beyond the amount at which they have been taxed, though the taxation was between party and party ; and if the mortgagee resist redemption upon tender of such costs, and of the principal, interest and other costs due to him, he will be liable to the general costs of a suit for redemption (Z). 1 726. A person who has advanced money for the protec- tion of a fund, the subject of a security, without notice of (/j) Allen V. Kiii<;ht, '» Hare, 272. nn order made in chambers by Maule, (i) West V. Joucs, 1 Sim., N. S. J., was wrong ; and the extra costs oc- 205. casioned thereby -were not thrown upon (i) Horlock r. Smith, 1 Col. 208. the mortgagee. But no reason is (Z) Morley v. Bridges, 2 Col. 621. given. The j udgmcut obscurely intimates that 960 COSTS OF PREPARING SECURITY. such security is entitled to costs against the prior mortgagee, ■who, not being allowed to take the benefit of such advance without indemnifying the lender, has not offered to indemnify him Avithout suit (?«). 1727. Xo costs will be allowed of doing an unnecessary act, as of redocketing a judgment which is already in force (?i). 1728. The costs of, and incident to, preparing the mort- gage, are not mortgagee's costs, the payment of which may be insisted upon in a foreclosure suit, although the mortgagee be one of a firm of solicitors by whom the business was done (o). Nor has the solicitor of an intended mortgagee any claim at law against the intended mortgagor for the costs of an unsuccessful negotiation for the security, or for the costs of investigating the title to the property ; there being no im- plied contract on the part of the borroAver to produce a secu- rity of any particular degree of safety, or any particular title, as in the case of a contract for sale(/:'). But if the Court of Chancery authorize a mortgage of an infant's estate, and the negotiation goes off without any default on the part of the mortgagee, after he has incurred expenses in the examination of the title, the court, on petition, will allow him his costs out of the infant's estate (</) (276). 1729. If an agreement have been made that the reason- able costs of the intended lender shall be paid, he cannot claim the banker's commission, or other expenses of obtaining the money, incurred before he has accepted the title ; nor, it is said, the costs of selling stock, or of realizing other securities for the purposes of the loan (r). 1730. Whilst the equity of redemption remains with the mortgagor he must indemnify the estate against expenses in- curred in protecting the title ; and even where the equity has passed into the hands of an assignee, between whom and the (m) Myers v. United Guarantie and 240. Life Assurance Company, 1 Jur., N. S. (p) Melbourne v. Cottrell, 29 L. T. 833 ; 7 De G.,M. & G. 112. 293. (n) MackcD, Petitioner, 2 Jo. & (q) Craggs v. Grey, 35 Beav. 166. Lat. 16. (r) In re Blakesley, 32 Beav. 379. (0) Gregg V. Slater, 2 Jur., N. S. COSTS OF ASSIGNMENT. 961 mortfafee there is no privity of contract, costs so incurred Avill not be thrown upon the mortgagee, where he has been passive as to the proceedings, though he reap the benefit of the outlay ; but it seems it would be otherwise if the mort- gagee have been active in or have otherwise adopted the proceedings (s). 1731. The estate being considered at law after forfeiture as the property of the mortgagee, he is entitled to deal with it as owner, and to be indemnified against all costs arising out of his legal and reasonable acts {t) ; and the same principle is extended to equitable mortgagees. If, therefore, the mort- gagee assign, after the time for payment has passed, the costs of persons claiming under the assignment, and Avho are neces- sary pai'ties to the suit, as trustees or otherwise, Avill be paid by the mortgagee in the first instance and added to his debt (u) ; and, as a general rule, it seems, that the costs of persons who are necessary parties by the mortgagee's act, will be thus dis- posed of. But where the mortgagee has been disalloAved or ordered to pay costs, for improper conduct, the mortgagor has been ordered to pay the costs of the mortgagee's trustee and to be repaid by the mortgagee (.r). 1732. It is not a reason for depriving the mortgagee of his rifht to charge the costs against the estate, that the person, in respect of whose interest they were incurred, might have been a co-plaintitf in the suit; because he may have objected to be a plaintiff (.v). By this il seems it is to be understood, that, to deprive the mortgagee of the costs of the party joined as a defendant, it must be shown, not only that he might have been, but that he was willing to be, a plaintiff, and that the mortgagee wilfully abstained from so joining him ; for it has (.<!) Lanfitun r. Laiigton, 1 Jur., X. the charge or life estate ; not by the S. 1078 ; 7 De G., M. & G. 30; and inheritance or the estate out of which the see the judgment in the court below, charge is raisable. (Stewart r. Marquis 18 Jur. 1093. Donegal, 2 J. & L. G(>2; Ennis «;. (/) Wcthcrcll V. Collins, 3 Mad. 235 ; Brady. 1 Dr. & Wal. 720. ) Bartlc V. Wili^in, 8 Sim. 238. (,r) Montgomery r. Calland, H Sim. (?0 Smith r. Chichester, 2 Dru. & 70 ; Cockell v. Taylor, 15 Bcav. 127. War. 393; Bartle v. "Wili^in, supra. (y) Browne r. Lockhart, 10 Sim. But the costs of incumbrancers on a 426. charge or life estate will be borne by 962 COSTS IMPROPERLY CAUSED elsewhere been laid dowu (z), that the cestui que trust, before filing his bill, should apply to the trustee to be a co-plaintiff; and that if the cestui que trust neglect to do so, and the trustee be not in default, the former shall pay the trustee's costs. And, on the other hand, if the trustee refuse, upon an offer of indemnity, to join as a co-plaintiff, he departs from his duty, and Avill not be entitled to his costs as defendant. And the infancy of the plaintiff' makes no difference. So, it is said («), that cestuis que trust, whose titles are identical, and their trustees, should join in answering. 1733. But the mortgagee's acts must have been so done as not to burden the estate with unnecessary expense. Therefore if the mortgagee, or those who represent him, transfer mort- gages on distinct estates, by a single deed, so as to cause a necessity for a covenant for production, either by the person redeeming (b), or by those interested under the assignment, in case the former should Avaive his right to delivery (c), the costs of preparing and perfecting the covenant and attested copies, and of the redeeming parties' application to the court, will fall upon the mortgagee's estate ; but where the mortgagor refused an offer to deliver the deed to him upon his covenant- ing to produce it, the costs of his application to the court for a reconveyance were thrown upon himself (o') (1864). 1734. Neither can the mortgagor be saddled with the costs of an assignment by the mortgagee (being the costs of making the assignment, and not such as arise from the joinder of parties to a suit in consequence thereof), where the assign- ment has been made without the mortgagor's knowledge, and without his being first called upon to pay or procure payment of the mortgage debt (e). Nor to the costs of such deeds as are not necessary for the security of the mortgagee : such as a declaration of trust where the mortgagee is a trustee if). 1735. The costs of the assignees in insolvency of a mort- (z) Eeade v. Sparks, 1 Mol. 8. (c) Dobson v. Land, 4 De G. & S. (a) Id. ; Homan v. Hague, 1 Mol. 575 — 581. )4, note. {(l) Capper v. Terrington, supra. {h) Capper v. Terrington, 1 Coll. (<-) Re Radcliffe, 22 Beav. 20L 103. (/) Martin's case, 5 Bing. 160. BOIINE BY MORTGAGEE. 963 gagee must be borne by his estate, or by the transieree if the mortgage be transferred, and the assignees are necessary j)arties {g). And the costs both of the mortgagee himself, and of a trustee, where either of them are necessary parties by the imprudence of the mortgagee, may be thrown upon the latter. Instances of this have occurred where the devisee of land, charged with but insufficient for the full payment of the legacy, mortgaged the land ; which being an improper act, and in no way charge- able on the legatee, the costs of the suit to raise the legacy were not allowed out of the price of the estate (^). And, in like manner, the plaintiff, in a suit to raise the arrears of an annuity, was obliged to pay the costs of his trustee, in whom a terra of years had been vested for securing the annuity, but who had never accepted the trust, and refused to do so by answer (z). 1736. It has been said (A), that where an incumbrancer creates a trust for his own purposes, and in a suit concerning the fund, it becomes necessary to bring him and his trustee before the court, the incumbrancer gets only his o^\^\ costs and pays those of the trustee ; but where the incumbrancer devises or disposes of the charge to several, each, being made a defen- dant, gets his costs, because all represent but one original in- cumbrancer. The former part of this proposition seems hardly consistent with the principle stated above as to the rights of the mortgagee. Of the Mortgagee's Liability to Costs incurred by the Loss of the Deeds. 1737. The mortgagee, or those Avho claim under him, also become liable, where he has lost the title deeds of the estate, for any costs which have been incurred in consequence of such loss. If, therefore, upon the mortgagor's refusal to repay the debt, by reason of the non-production of the deeds, and the ((/) Coles r. Forrest, 10 Bcav. 5j2 ; (?) Hickson i\ Fitzgerald, 1 Mol. 14, Horan ?v "Wooloughan, Beat. 1. note. (;i) Shacklcton r. Shacklcton, 2Sim. (/?•) Galway r. Butler, 1 Mol. 13, & St. 242. note. 964 ASSIGNMENTS PENDENTE LITE. mortgagee's neglect to give a satisfactory indemnity, a bill of foreclosure be filed (/) or an ejectment brought (7?i); or if the mortgagor file a bill for redemption {n), upon non-production of the deeds, in which he offers to redeem, and requires a recon- veyance ; the costs of any of such suits or action Avill fall upon the mortgagee. And on a bill for redemption, the court will not consider Avhether the indemnity, if any have been offered, should have satisfied the mortgagor ; for he is entitled to insti- tute a suit, in order that any person with whom he may here- after deal, respecting the estate, may be fully satisfied of the loss. But it is said, that in a foreclosure suit it will be in- quired, whether a proper indemnity were off^ered (o). So, if the mortgagee have a power of sale, but by reason of the loss of the deeds he is obliged to come for a sale under a decree, the subsequent incumbrancers are entitled to be paid their costs of the suit out of the purchase-money, although the amount of it be insufficient to pay the principal and interest due to the plaintifi'(p). The mortgagee must also give the indemnity, at his OAvn costs (y) (1868). Of the Costs arising out of Assignments Pendente Lite. 1738. If an assignment of the mortgage security be made after decree, or it seems at all pendente lite, the mortgagor will not be charged with the costs of the supplementary proceeding by which the assignee is brought before the court (r). But it has been held, that the costs of an assignment pendente lite by the second mortgagee to the first, and by the first to the as- signee of her original interest, may be so charged against the {I) Stokoe V. Robson, 19 Ves. 385. 531. (m) Lord Midleton v. Eliot, 15 Sim. (r) Barry v. Wrey, 3 Russ. 465 ; £31. Coles V. Forrest, 10 Beav. 552. Where (n) Lord Midleton v. Eliot, supra. an order was made in a foreclosure suit (o) And see Macartney v. Graham, to revive against an assignee after 2 Russ. & M. 353. decree, it was ordered to be specified (^) Wontner v. Wright, 2 Sim. that the costs should be paid by the 643. plaintiff. (James v. Harding, 24 L. J. (j) Lord Midleton v. Eliot, 15 Sim. (Ch.) 749.) COSTS OF RECONVEYANCE. 965 estate, though the assignee of that original interest took pen- dente lite. A purchaser pendente lite comes into court pro bono etmalo, and may become liable for tlie -whole costs of the suit(5). Of tlic Costs of Reconveyance. 1739. The costs of reconveyance are borne by the mort- gagor (0, as Avell in oi-dinary cases as where the estate has been settled or devised by the mortgagee, or has descended. An exception to this rule is Avell established (though it has been admitted with reluctance) Avhere the mortgagee is of unsound mind, whether he have been found so by inquisition or not ; for the conveyance of his interest by the committee, in- cluding the costs of the petition, and of the order for conveyance or vesting, is made at the cost of the lunatic's estate, Avhere he is beneficially interested in the mortgage money (ii). But the exception is not extended to the case of a descent of the mort- gaged estate upon a lunatic heir at law (a:), and if the mort- gagee be a bare trustee, the costs of reconveyance will be paid either by the persons beneficially interested, or by the mort- gagor iy). The costs were thi'own upon the latter, in a case in whicli it appeared, by an express declaration of trust upon the face of the deed (r), that the mortgagee had no beneficial interest. The petition for reconveyance seems very generally to have been presented by the mortgagor ; but it was laid down by Lord St. Leonards, C, that the proceedings ought to originate (.S-) Anon., 1 Atk. 89. J. (Ch.), N. S. 112; Re Rowley, 32 (t) 6 Hare, 475 ; 1 De G., M. & G. L- J., Ch. 158. But the mortgagor 43g_ bears the cost of the stamp on the vest- (h) Ex parte Richards, 1 Jac. & W. ing order. (Re Thomas, 22 L. J., Ch. 264 ; Re Townshcnd, 2 Ph. 348 ; Re 858.) Wheeler, 1 De G., M. & G. 434 ; see ( y) Re Tarbuck, 17 July, 1820 ; Re ReMarrow, Cr. &rh. 112; T.e Thomas, Davidson, 11 Aug. 1820, cited Shelf. 22 L. J. (Ch.) 858. and 1 Week. K. 155 ; Lun. 508-9, ed. 2. Re Biddle, 23 L. J. (Ch.) 22 ; Haw- (-) Re Lewes, 1 Mac. & G. 23. The kins V. Perry, 25 L. J., N. S. (Ch.) 656 ; declaration of trust is referred to in the 8 De G., M." & G. 439 ; 4 W. R. G8G. jud-mcnt, but it docs not appear that it (a-) In re Stuart, 4 De G. & J. 317 ; affected the principle of the decision. In re Jones, 7 Jur., N. S. 115 ; 30 L. f 966 COSTS OF RECONVEYANCE. ■with the committee, and that the mortijagor should thenceforth have no right to costs, where he petitioned, unless the conamittee had declined to do so (a). 1 740. As to costs of reconveyance or revesting, where the estate has been devised by the mortgagee to trustees (i), or has descended to an infant heir (c), (unless perhaps he have suffered it to descend, under circumstances which show great disregard of the mortgagor's interest) {d),) the rule is clear, that the mortgagee's estate is entitled to receive the costs of the pro- ceedings, Avith the principal and interest. 1741. The costs of surrendering, or conveying to the equitable mortgagee upon the foreclosure, are not generally provided for by the decree (e), Avhich simply directs the sur- render or conveyance to be made (1810); and it has been said (f), that Avhere a freehold estate is the subject of the se- fl curity, such costs ought to be paid by the mortgagee, because | he takes the initiative in procuring the reconveyance to be made in compliance with the orders of the court, by preparing and tenderingi: the deed for the mortgagor's execution : but other- wise in the case of copyholds, because it is the mortgagor's duty to obey the decree, by surrendering, without any previous tender, or other act by the mortgagee. And the contract on an equitable mortgage, being a contract to transfer the legal estate to the mortgagee, the party whose duty it is to make the transfer must pay the expenses of it. This reasoning seems hardly satisfactory, so far as it applies, to a case between mort- gagor and mortgagee, the principle, that any part of the costs are dependent upon the accident that one party in particular must take the initiative in carrying out the order of the court. It is submitted that the costs might properly be charged in both cases upon the mortgagee, upon the principle that he takes the estate in satisfaction of the whole debt, interest and (a) Re Wheeler, 1 De G., M. & G. Company v. Westcomh, 2 Ry. Ca. 211 ; 434. but this was not a mortgagee's case. (J) Kingt). Smith, 6 Hare, 473. (e) In Hill v. Price, Set. 206, ed. 2, (c) Ex parte Oramancv, 10 Sim. 404, ed. 3, the mortgagor is directed to 298 ; King v. Smith ; and see Ex pay the expense, but the cost was pro- parte Cant, 10 Ves. 554. vided for by covenant. See next case. (d) See Midland Counties Railway (/) Pryce v. Bury, 2 Drew. 41. COSTS OF RECOXVETAXCE. 967 costs. If the legal estate were conveyed before suit, the costs of conveyance would be first charged upon the estate ; and it seems reasonable to pursue the same course in completing the mortgagee's title under the decree, especially if the estate be not in the hands of one personally liable to indemnify the mortgagee against expenses incurred in respect of it. 1 742. A mortgagee is not bound ig) to assign the estate, after payment, to the mortgagor, or his nominee, if he have notice of an equitable claim by another person on the estate; and if he have agreed to assign upon the false representation that he is bound to do so, the agreement will be treated as a nullity, and the mortgagee will be entitled, as against the mortgagor and his intended assignee, to the costs of their suit to compel the assignment, so far as the costs relate to matters in issue in the suit. 1743. In like manner, if the mortgagor pay the debt to the mortgagee without respect to an equitable claim, of which he has notice, against the latter, he mav become liable to such claim. Where such a claim was made by the mortgagee's solicitor for costs, an order was made for taxation of the costs, and for payment thereof by the mortgagee and the mortgagor, or one of them, within a short day from service of the certifi- cate of taxation. And this Avas done where the money was paid by the mortgagor in pursuance of an agreement for com- promising the suit(/t). 1744. A trustee for the mortgagee is bound to assign ac- cording to his direction, and if he refuse to do so, in a plain and simple case, as for instance to a purchaser under a power of sale, he will be made to pay the costs of a suit rendered necessary by his refusal (?). 1745. The solicitor of a mortgagee, who claims a lien on the title deeds in his hands, as against the mortgagee, is en- titled {k) in a redemption suit to the costs of a petition by the mortgagor, for delivery of the deeds, on payment of the balance ( ^) Banks v. "Whittall, 1 De G. & S. 34. 541. {k) Rider u. Jones, 2 Y. & C. C. C. (h) White V. Pearce, 7 Hai-e, 276. 335. (i) Hampshire v. Bradler, 2 Coll. 968 COSTS OF NECESSARY PARTIES. due on the mort^acje, in discliare:e of his lien, such costs to be paid by the mortgagor ; but not to the costs of investigating a lien claimed by him against other persons. And the mortgagor must be at the expense of the order for delivery of the deeds, where they have come into the custody of the court, in the course of an administration suit of the morts-agee's estate, rendered necessary by the nature of his will ; and where they are not deposited in court by reason of any default or mis- conduct (/). But it Avill be otherwise if the mortgage be made to executors pending an administration suit, and the mortgagor have no notice either of the character of the executors, or of the suit, and afterwards the executors find it proper to deposit the deeds in court ; for then, if the executors refuse to apply for an order for redelivery, the mortgagor may get the order, and will be entitled to the costs of so doing {in) : which the mortgagees may be ordered to j)ay without prejudice to any future decision as to the person upon whom they shall ulti- mately fall. 1746. The costs of trustees under a settlement of the equity of redemption, where they are necessary parties to convey the estate, will be paid out of the mortgage debt {n) ; and so, where the plaintiff is a judgment creditor of the first mortgagee, the cost of such trustees will be paid even before those of the plaintiff, or of the first mort- gagee (o). But it seems, that the costs of parties made necessary by the act of the mortgagor are otherwise not generally paid by the mortgagee. Therefore, where the bankrupt devisee of an equity of redemption disclaimed, and the bank- rupt was joined (1021), lie had no costs from the mort- gagee (/?); for it seems, that by the disclaimer, the assignee's interest became revested in the bankrupt. And the mort- gagee will not be ordered to pay such costs, even where he has been decreed to pay his own costs of an unsuccessful claim, the determination of which was the object of the (0 Burden v. Oldaker, 1 Coll. 105. {%) Siffken v. Davis, Kay, xxi. (to) Reed V. Freer, 13 L. J. (Ch.) {p) Clare i'. Wood, 4 Hare, 81. 417 ; 8 Jur. 704. (jr,) Singleton v. Cox, 4 Hare, 326. COSTS OF DISCLAIMING PARTIES. 9G9 suit(<7). Except, however, the costs of the solicitor to the Suitors' Fee Fund, under Cons. Ord. XL. s. 4, where he is appointed guardian to an infant defendant ; because he is an officer of the court, appointed at the request and for the benefit of the mortgagee, who must pay his costs in the first instance (even though the security be deficient), but may add them to his debt (?•)• Of the Right of disclaiminff Parties to Costs. 1747. The right of disclaiming defendants, particularly where they fill the character of assignees in insolvency, to receive costs, has been the subject of much discussion (1884). It seems, however, to be now settled, that insolvents' as- signees are in no better position as to their costs than any other defendants who disclaim ; and that they have no right, arising out of the office which they fill, to receive costs from the mortgagee, even upon the terms that he may add them to his debt: nor upon the ground that the assignee has re- ceived no assets out of the insolvent's estate. For the as- signee stands in the place of the insolvent, who can give him no more right than he had himself (5). 1748. It has been intimated (0, that the cases of assignees in bankruptcy or insolvency, and of puisne incumbrancers, are not identical ; and it is presumed, that the distinction was founded upon the position of the former as public officers ; but the equity arising out of that character has been said(«) to {q) Green v. Briggs, 6 Hare, G32. several decisions, viz. Peake v. Gibbon, (;•) Harris v. Hanilyn, 3 De G. & 2 Rnss. .<v 'SI. :^oi ; Tarn. 505 ; Wood- S. 470 ; Newburj- v. :Marten, 15 Jur. ward r. Iladdon, -1 Sim. GOG ; "Weaving 166; Spurgeoii c. Witliain, .M. K. I'l r. Count, 6 Sim. 439; Boswelln. Tucker, Dec. 1855, on petition for costs not pro- 1 Bcav. 493, and others, by which costs vidcd for by decree, as well as at tlie had been given to the provisional hearing. assignee, as a public officer. And in (s) Cash V. Belcher, 1 Hare, 310 ; Ablett r. Edwards, noticed 10 Sim. Hunter v. Pugh, id. 307, note ; Ap- 5G3, note, the costs of a disclaiming plcbv I'. Duke, id. 303, and 1 Ph. 272; defendant were ordered to be jiaid, and Clark r. Wilmot, 1 Y. & C. C. C. 53, added to the plaintiff 's debt, and 1 Ph. 27G ; Hughes r. Kelly, 3 (f) 1 De G. & S. 544. Dm. & War. 495. Tliese cases, and («) 1 Hare, 309. especially Appleby r. Duke, overrule M. VOL. II. 3 K 970 GENERAL RIGHT TO COSTS be insufficieut to lessen the mortgagee's security, by increas- ing the charge upon the estate. And the costs even of the Attorney-General (.r), claiming ineftectually on behalf of the crown, have been refused, Avhere the costs Avould have come out of the morto-ao-ed estate. It is clear that a provisional assignee who takes up the liti- gation as a contending party, instead of disclaiming, will be left to take his costs out of the insolvent's estate (y). 1749. The general rights of disclaiming defendants, upon the subject of costs, have been said, by an eminent judge, to fall within the three following rules (z), viz. — First. In suits for foreclosure or redemption, where a de- fendant disclaims in such a manner as to show that he never had, and never claimed, an interest at or after the filing of the bill, he is entitled to his costs. Secondly. If a defendant, having an interest, show that he disclaimed, or ofiered to disclaim before the institution of the suit, he is also entitled to his costs. Thirdly. Where a defendant having an interest allows him- self to be made a party to the suit, and does not disclaim or offer to disclaim till he jjuts in his answer or disclaimer, he is not entitled to his costs (1763). To which it may be added, that a defendant properly made a party, Avho, after bill filed disclaims, and, without waiting to be asked, offers to be dismissed without costs, and is yet brought to a hearing, will have his costs subsequent to the disclaimer (a). Although, if disclaiming, he also answers and appears to claim his costs, he will have none (b). 1750. These rules may be illustrated by the following au- thorities and examples. It was long since laid down(c), that if the defendant dis- claim, the court will in general dismiss the bill as against him («) Perkins u. Bradley, 1 Hare, 219; («) Davis v. Whitmore, 28 Beav. see Kane v. Reynolds, 4 De G., M. & (il7; Dillon v. Ashwin, 10 Jur., N. S. G. 5C5. 11<J; Talbot t'. Kcmshead, 4 K. & J. ( y) Rider v. Jones, 2 Y. & C. C. C. 93. 335. (h) Maxwell i;. Wightwick, L. R., 3 (2) Ford V. Earl of Chesterfield, IG E(j. 210. Beav. 516. (c) Mitf. PI. 319. OF DISCLAIMING DEFENDANTS. 971 Avitli costs; by ^vliich It is to l)e understood (</ ), tliiit il" the disclaimer show that the defendant never had any interest, or, having had any, that he had 2)arted with it, or disclaimed, or offered to disclaim beiore the filing of the bill, he will be en- titled to costs as having been ijnproperJy made a party ; but if he were interested at the filing of the bill, and there were no special circumstances, the mere fact of his saying that he finds his interest worth nothing, and therefore repudiates it, does not show that he was improperly joined, and therefore does not give him a right to costs. It is therefore clear, that a simple disclaimer, or abandonment of interest after the filing of the bill, gives no right to costs, although the disclaimer state that the defendant never claimed, or pretended to have any interest ; and though it appear by the bill, that the money remaining due is more than the value of the estate ; if, when the bill was filed, an interest was then actually vested in the defendant (c). But if he show that he never had and never claimed an interest, at or after the filing of the bill, it Avill be otherwise ; as if a person, named in a will as a devisee in trust, show by his ansAver(y) that he has always refused to act, he will be allowed his costs ; and that not merely of a short disclaimer, but also of a correspondence set out in his answer, which showed that the circumstances were within the knowledge of the plaintiff, and that a simple disclaimer should have been called for. The same has been held as to a person beneficially interested under a will, who had never claimed any benefit under, or accepted the devise (^). So where the defendant disclaimed, and answered that he had assigned (d) Tipping v. Power, 1 Ilarc, 40"). 3G9 ; and see Wilton v. Jones, 2 Y. & (1842) i Fewster v. Turner, cited there C. C. C. 244. (1841) ; Gabriel v. Sturgis, 5 Ilare, 97; (s) Higgins v. Frankis, 15 Jur. 277. Grigg I'. Sturgis, id. 93 (184G). Rut ([uery as to this case ; for the (e) Gibson r. Nifoll, i) Beav. 403 devisee need not aceept the devise by ( 1846) ; Ohrly v. Jenkins, 1 De G. & any formal act, but the estate is prima S. 543 (1847) ; StafTurth v. Pott, 2 De facie vested in him. If behave not dis- G. &S.571 (1848); Buchanan c. Green- claimed, or offered to do so, how di>es way, 11 Beav. 58 (1848) ; contra, Sil- his case differ from that of a necessary cock V. Roynon, 2 Y. &. C. C. C. 37G defendant, who has not disclaimed (1843). before suit? (/) Bcubow c. Davies, 11 Benv. 3 k2 972 WHEN DISCLAIMING DEFENDANT Avhatever interest lie ever liiul in the subject-matter of the suit to another, who admitted the assignment (A). 1761. A defendant who has never claimed an interest need not show that he disclaimed, or gave notice that he would do so before he was joined (/). And a statement, that if he had been applied to, he would have released, or disclaimed his right, but that no such application was made to him, gives no right to costs (k) ; for this shows that the right remains in the defendant; and it does not appear to have been laid down, that it is the duty of the plaintiff to apply to a defendant before filing a bill, to ascertain whether he Avill disclaiin such interest as may be vested in him, though such a rule appears to be reasonable. Where a defendant put in an imperfect disclaimer, stating only that she did not claim to be interested ; it was said that the terms of the disclaimer should have been that she did not and never did claim, and that she disclaimed ; for she might be a necessary party as a trustee, and yet might claim no in- terest accordincr to her own words. And she was refused her costs (Z). It may seem to be here implied, that if the dis- claimer had been more complete, costs would have been given. But it is considered, that this was not meant in a general sense. In the case in question, the amended bill showed that the defendant had no interest. 1752. It seems, therefore, that a disclaimer, which would have divested the interest before suit, or an offer to disclaim or to release, which would deprive the plaintiff of any equity to throw upon the defendant the burden of his costs, must have been actually made (?n). In accordance with which principle is a decision (w) ])y Shadwell, V.-C. E., allowing the costs of a disclaiming assignee, who, having been informed by the plaintiff's solicitors sometime before the filing of the (A) Glover v. Rogers, 17 L. J. Ford v. Wliite, 16 Beav. 125. (Ch.) 2. (l) Vale v. Merideth, 18 Jur. 992. (i) Bellamy v. Brickenden, 4 K. & (m) Lock v. Lomas, 15 Jur. 162. J. 670. (n) Thompson v. Kendall, 9 Sim. (k) Collins V. Shirley, 1 Russ. & 397. M. 638 ; Cash v. Belcher, 1 Ilarc, 310 ; IS ENTITLED TO COSTS. 973 bill, that he was a necessary party to a conveyance, directed the draft conveyance to be sent to his solicitor, by whom it was perused and approved, and then returned to the plain- tiff's solicitor; — after Avhich no communication took place until service of the subpoena : for here the defendant's con- duct clearly amounted to an offer to convey. 1753. But a distinction has been taken, where (o) it was made part of the plaintiffs' case, that they had applied to and requested the defendants to pay the mortgage debt, but that the defendants had refused to do so : the averment being followed by an interrogatory founded thereon ; whereas the answer stated that no such application was ever made, that, if it had been made, the defendants Avould have released and disclaimed. The decision was not approved of by Romilly, M. R., but seems to have been cited to him from an imperfect report. The judgment of Stuart, V.-C, expressly puts the case upon different grounds from those on which the other cases were decided, viz., upon the untrue averment in the bill (which, however, was admitted to be such as is commonly used in foreclosure bills), and upon the conduct of the parties ; and whether or not it be followed, its justice is clear. For, how- ever correct may be the principle so much insisted on by Wi2:ram V.-C, and followed in all the cases, viz., that, if the defendant were interested at the filing of the bill, he Avas a necessary party, that principal does not justify the infliction of costs, upon a man to whom no opportunity was ever given of disclaiming or conveying. To such a person the rule which denies costs to a defendant who allows himself to be made a party, and does not disclaim, or offer to do so, until answer, is not applicable ; for he may be ignorant of the suit until the bill is served upon him. And though the court have not made it the plaintiff's duty to apply to the de- fendant, yet if the plaintiff aver falsely that he has so ap- plied, the averment may be well taken as an admission of a duty to apply, and the defendant may be put in the same (o) Gurney v. Jackson, 1 Sm. & G. 97 ; 17 Jur. 204. 974 COSTS OF DISCLAIMING DEFENDANTS. position as if he had been enabled to disclaim before the com- mencement of the suit. The assignee of a bankrupt mortgagor, who by his answer disclaimed all interest in the equity of redemption, and alleged a previous offer to do so, but claimed another interest in the suit, was neither allowed to receive, nor ordered to pay, costs (p). 1754. It is not necessary, that the offer to disclaim contain also an offer to pay the costs of the disclaimer {q). 1765. The defendant is not obliged to go into evidence to prove that he has no interest (r). If a defendant disclaim generally, and the plaintiff reply to the disclaimer, so that the defendant is obliged to go into evidence to support his statement, the plaintiff must pay the costs (s) (that is, it is presumed) of the evidence ; but if no evidence be used, the replication alone gives no right to costs. And if the disclaimer.be as to part, and the answer as to other part of the subject-matter, the plaintiff is entitled to reply (0- 1756. Where a defendant assigns his interest before answer, he ought not to file an answer and disclaimer, with- out communicating with the plaintiff's solicitor ; otherwise he will have no costs. On the other hand, the plaintiff ought not, under such circumstances, to strike out the defendant by amendment, before moving to dismiss ; and if he occasion the defendant any costs by so doing, the defendant will be enti- tled to be indemnified in respect of such costs (u) (1884). Of adding Costs to the Debt after Decree. 1757. After a decree had been made in a foreclosure suit, and the accounts taken and report confirmed, the court (/>) Edwards v. Jones, 1 CJoll. 247. replication and service of suhpcena to {q) Lock u.Lomas, 15 Jur. 1C2. rejoin gave a right to costs for the (r) Glover v. Rogers, 17 L. ,T. vexation; hnt the suhpcena to rejoin (Ch.) 2. has been now abolished. (93 Ord. 8 («) Ford V. Earl of Chesterfield, 16 May, 1845.) Beav. 516 ; sec Mitf. PI. 311), ed. 4 ; {u) Hawkins v. Gardiner, 17 Jur. 380, ed. 5. 780 ; and see Wright v. Barlow, 15 {t) Williams v. Longfellow, 3 Atk. Jur. 1149. 582 ; where it is also said that the COSTS ON TROCEEDING AFTER DECREE. 975 refused to alter the decree on petition, l)y directing that there should be no redemption until payment of costs since incurred by the plaintiff, in a different suit, in respect of property mortgaged to him, which upon sale proved to be insuthcient ior payment of the prior incumbrancers (.r). It seems that the order here sought would have altered not merely the amount payable but also tiic terms of redemption. But where a mortgagee of copyholds had got into possession by ejectment, pending the foreclosure suit, at the hearing of which the costs of the ejectment, amongst other expenses, were not provided for, the court did, but not without hesita- tion, make a subsequent order on petition, that those costs and expenses should be added to the principal sum due (y). 1758. If a suit for redemption be heard on bill and answer, and upon the defendant's submission to be redeemed the usual account is directed and a day appointed for redemption, taxed costs will be given when the bill is dismissed upon the plain- tiff's default in payment ; because the reference is on a sub- sequent proceeding beyond the bill and answer ; and this was done (z) even before the general rule, that no more than forty shillings' costs should be given on the dismissal at a hearino: on bill and answer, was modified by Lord Ilardwicke's Order of 27th April, 1748, which gave the court a discretionary power of decreeing taxed costs upon such a dismissal. Of Solicitor s Costs. 1759. The Attornies and Solicitors' Act (a) provides, that Avhere a person not chargeable within the meaning of the act with a bill shall be liable to pay, or shall have paid the same, the like application may be made for taxation, and the same course pursued on taxation as if the application were made by the party chargeable ; provided that in case the application be made when under the provisions of the act a reference is not authorized to be made, except under special circum- (.r) Banon v. LanceficUl, 17 Bcav. that littJe or no ojiposition was made 208. to the order. (y) Spurpeon v. "Withani, M. E., (z) Newshmu r. Gray, 2 Atk. 2S6. 21 Dec. 1855. It appeared, however, (a) C & 7 Vict. c. 73, s. 3S. 976 COSTS UNDER SOLICITORS ACT. stances, the court or judge to whom the application shall be made may take into consideration any additional special cir- cumstances applicable to the person seeking taxation, though such circumstances might not be applicable to the party chargeable with the bill, if he Avere the party seeking the taxation. 1 760. The right of the solicitor of the mortgagee to his charges against his client are the same, and his bill will be taxed on the same principle, where the taxation is applied for by the mortgagor under the above enactment, as where the mortgagee himself applies (Z»). The mortgagor has the same right to tax the bill of the mortgao-ee's solicitor as the mort- em O O gagee had; and if the latter has bound himself as to the solicitor the mortgagor is bound also, and can only tax against the mortgagee (c). 1761. If a solicitor, being a trustee of mortgaged pro- perty, agree with another solicitor, that the latter shall transact trust business upon agency terms, and the costs of such business become payable out of the mortgaged estate, the persons beneficially interested in the equity of redemp- tion, who seek taxation of the agent's bill, are entitled to have it taxed as between principal and agent ; because the co-trustees of him who made the agreement have a right to the benefit of it for their cestuis que trust {d). Mortgagee's costs are taxed in the Court of Admiralty upon the same principles as in Chancery (e). Of Costs upon staying Proceedings. 1762. Upon staying proceedings in a foreclosure suit, upon the offer of a puisne incumbrancer to pay the plaintifi*'s debt, the costs of the subsequent incumbrancers, parties to the suit, have been ordered to be paid by the plaintifi", who (J) Re Jones, 8 Beav. 479. Re Lees, 5 Beav. 410 ; Re Carew, 8 (c) Re Baker, 32 Beav. 526. id. 150 ; In re Wells, id. 416. And see {d ) Re Taylor, 18 Jur. 6G6 ; 18 generally as to taxation, Daniell's Ch. Beav. 165. As to the taxation of bills Pr. ed. 4. of costs in mortgage cases, see further (e) The Kestrel, L. R., 1 Ad. 78. COSTS ON STAYING PROCEKDINGS. 977 was to have them over from the incumbrancer moving to dismiss {f). A mortgagee wlio has filed a foreclosure bill, pending a suit to administer the mortgagor's estate, is entitled, after being satisfied under the latter, to dismiss his own suit, and to have the costs of it {g). (/) Jones ?•. Tinney, Kay, xlv. {g) Brooksbank r. Iligginbottoiu, 31 Beav. 35. ( 978 ) CHAPTER XIII. OF THE DECREE AND OF MATTERS CONSE- QUENT ON THE DISCHARGE OF THE SECURITY. 1763. Of the Nature and Form of the Decree. 1783. Of the Time aUoved for Payment. 1789. Of Enlarging the Time for Payment and Opening the Foreclosure. 1809. Of the Conveyance and Delivery of Possession of the Estate on Re- demption, Foreclosure or Sale. 1821. Of the Right to Policies of Tnsrirance effected as Collateral Securities. 1829. Of Decrees for Sale. 1844. Of Decrees and Orders against Infants and Trustees. 1863. Of Decrees against Married Women. 1864. Of the Delivery of the Title Deeds. 1868. Of the Loss of the Title Deeds. 1873. Of the Order absolute for Foreclosure. 1881. Of the Dismissal of the Bill for Redemption. Of the Nature and Form of the Decree. 1763. The amount due to the first incumbrancer, whether by mortgage or judgment (a), having been fixed, we must in the next place consider, who is the person entitled to the first right of redemption. And here it is to be noted, that whether the suit be by mortgagor or mortgagee, the price of redemption is the same (Z») (1251). Each party, according as he may be plaintiff or defendant, may be subject to par- ticular equities arising out of those characters, but no dis- tinction is made as to the course and order of redemption, between a suit in Avhich the owner is seeking to clear his estate from incumbrances, and that in which the first (c) or a {a) For decree in suit by judgment Watts v. Symes, 1 De G., M. & G. creditor, sec Bates v. Hillcoat, Set. 452, 240. ed. 3. (c) Barnes v. Fox, Set. 439, ed. 3. (J) Du Vigier v. Lee, 2 Hare, 32G -, NATURE AND EFFECT OF DECREE. 079 sulj.se(|uent (r/) mortgagee is seeking to get j)ossession of tlie estate in satisfaction of his debt. And though the mortgagee submit to depart from the common form of the decree in one j)articular, as if the decree direct an account, and then reserve further directions, instead of the usual order for payment or foreclosure ; yet he retains his right to have the further decree made in the usual form (c). 1764. Where there are several mortgages in succession, the decree proceeds upon the principle, that the second mort- gagee, as the first assignee of the equity of redemption, fills the place, and acquires the rights of the mortgagor ; and he has, therefore, the first right to redeem, upon payment of what is due to the first mortgagee, who, upon such payment, is ordered to convey to the second mortgagee ; but, in default of payment, the latter is foreclosed. The second mortgagee being thus removed out of the way by foreclosure, an account is taken of the first mortgagee's subsequent interest and costs, and upon payment thereof, with the amount originally found due, the third mortgagee may redeem him ; and this process is carried on as to all the successive incumbrancers, until the mortgagor or ultimate owner of the equity of re- demption alone remains, when he may in like manner redeem, and in default stands foreclosed ; and, in the latter case, the estate remains to the first mortgagee, free from all incuni- bvances. And note, that where there are several incum- brancers, and the mortgagor's bill for redemption is dismissed (which is generally equivalent to foreclosure (188S) ), the last incumbrancer becomes quasi mortgagor, and the others become first and subsequent incumbrancers according to their priorities {/). 1766. It has been thus far assumed, that none of the suc- cessive incumbrancers have exercised their i-ights of redemp- tion. But the decree, in the next place, provides for the exercise of these rights, by directing, that in case the second (^) Jackson r. Brcttall, Set. 477, cd. see observation, 1 Dc G., M. & G. 3 ; Thaokwmy i: Bell ; Bell v. Cart- 242. Avright (1885, 1897). (/) 3 Hare, 637. («) Dunstau i;. Patterson, 2 Ph. 341; 980 FORM OF DECREE; PERMISSIVE REDEMPTION. mortgraaee shall redeem the first, an account shall be taken of what is due to the person so redeeming on his own security, and for what he shall have paid the first mortgagee, with interest thereon, and costs ; and upon payment of the aggre- gate of these sums, the third mortgagee has liberty to redeem the second, in default of Avhich he is foreclosed according to the process first pointed out; and a further account having been taken of Avhat is due to the second mortgagee in respect of his OAvn debt, and of his payments, the next incumbrancer, or, if there be none, the mortgagor, will be at liberty to redeem. But if the third mortgagee shall have redeemed the second, an account is taken of what is due to the third, in respect of his security, and of what he has paid; and he may be re- deemed by the next incumbrancer, or the ultimate owner of the equity of redemption. Finally, upon non-payment to the last person to be re- deemed of what he shall have paid to the prior incumbrancers, and of his own principal, interest and costs, the owner of the equity himself stands absolutely foreclosed, and the estate as before remains in the hands of such one of the incum- brancers as has cleared off" the rest, free from all the debts which afi'ected it. 1766. But here it is to be observed, that, although redemp- tion is commonly enforced by foreclosure, that kind of relief is not a necessary consequence of default in payment of the money ; for the redemption may be merely permissive. Thus a tenant in tail of incumbered estates, the settlor of which has covenanted to relieve them from incumbrancers, and has thus, as between himself and the persons taking rmder the settle- ment, thrown the debts upon his unsettled estates, may redeem if he will pay oiF all the incumbrancers. But if this right of redemption be worked out, in the course of a suit by a person who is subject to the same equities as the settlor, as, for ex- ample {g), his assignee in insolvency, there will be no fore- closure on default, but dismissal only, against the tenant in ig) Chappell v. Rees, 1 De G., M. & G. 393. lUGIITS OF SEVEKAL MORTGAGEES. 981 tail ; for the assignee cannot ioreclose one w hose estate the insolvent has covenanted to relieve from liability. Again, it seems that if, for any reason, the decree to ac- count, instead of being made in the usual manner, proceed upon the undertaking of the mortgagor to pay what shall be found due, the mortgagee, relying upon this undertaking, cannot avail himself of the right to foreclose if default be made in the payment (A). 1767. The defendant who has the first right to redeem has an interest and a right to see that the decree is perfected against the first mortgagee ; and, consequently, before decrees made on default were absolute in the first instance (1876), the puisne incumbrancer might move to serve a subpoena on the first mortgagee, that the latter might show cause why a decree on default should not be made absolute against him(0. 1768. Where there are several mortgagees, and the first is also part owner of the equity of redemption, the decree di- rects {j), that upon payment to the first mortgagee of all that is due to him, by the second, the former shall convey the whole estate, subject to his right to redeem the part in the equity of redemption whereof he is interested ; on default of payment, the second mortgagee is foreclosed in the usual manner. The owner of the residue of the equity of redemption re- deems on payment of all that is due, but receives a convey- ance only of that part, in which he is interested (A). In case of redemption by the second or other subsequent morto-afree, he is redeemable in his turn ])V the first mort- gagee, being owner of part of the equity, and by the owner of the residue of the equity, on payment by each of a part of (/i) Dunstan v. Patterson, 2 Ph. 341. (i) Cottingham v. Earl of Sbrews- burj', 5 Sim. 30.'). {j) Sambroke v. Haiibury, Scton, 209, ed. 2 ; see Sober c. Kcni]) (1911); see a decree stated 4 Y. & C. 449. (/fe) But query if be ou;ibt uot to bare a conveyance of all, subject to tbe right of the first mortgagee to redeem bis share of tbe equity again, upon payment of a projjortion, un tbe jiriu- ciple that the mortga<ree must be en- tirely redeemed, or not at all ; or whe- ther, to avoid such a circuity, the part owner of the equity ought not in tbe first instance to redeem the mortgagee on ]iayment of a sum proportioned to tbe redeeming pai'ty's share. 982 RIGHTS OF PUISNE MORTGAGEES. the mortgage debt proportioned to his share ; and upon re- demption, the estate is conveyed to them in the proportions in which they are entitled. If the first mortgagee do not make the payment in respect of his share in the equity, the bill in respect thereof is dismissed. And upon the like default by the other owner of the equity, he is foreclosed. 1769. Where a puisne mortgagee of estates, distinct por- tions of which have been previously mortgaged to several persons, seeks redemption, and to foreclose the mortgagor, he is entitled to a decree providing that he may redeem both or either of the estates. If he redeem both, he may foreclose the mortg;ao;or unless he also redeem both ; if he redeem but one, the mortsrao-or must redeem that one or be foreclosed : and as to that which the plaintiff does not redeem his bill will be dismissed (Z) (1261). 1770. Where a mortgagee of shares upon which calls had been made since the date of the security, filed his bill to en- force his security, offering to pay the subsequent calls, the company, disputing the security on the ground that the shares were forfeited, were treated as puisne mortgagees disputing the priority of the first incumbrancer, whom they were or- dered to redeem ; paying his debt and the calls paid, less the sums received by him on account of profits (/n). 1771. If the morto-ao-or be entitled to a set-off in matters in respect of which he files his bill for an account, the court may give him the benefit of his set-off, and may either make one decree in his suit and in that of the mortgagee, or may make a separate decree for an account against the mortgagee personally; or, upon payment into court by the mortgagor of the principal and interest, a decree may be made in both causes, and the foreclosure may be suspended until both accounts have been taken {n). 1773. Where one person has mortgaged his estate as a (f) Pelly V. Watheii, 7 Hare, 351 — cording to priority. (Whitegrave t;. 363. App. on another point, 1 De G., Craddock, Set. 439, ed. 3 ; Morgan v. M. & G. 16; where a mortgagee eii- Sandys, id. 442.) titled to several securities has no right (/») Watson v. Eales, 23 Beav. 294. to tack, redemption will be directed ac- («) Dodd v. Lydall, 1 Hare, 333. wife's right of redemption. 983 surety for another, the decree is so framed as to give the surety the full benefit of his rights, against the estate of the principal debtor. And the right of redemption being given to both, it is ordered, that if the money be paid by the prin- cipal debtor, the estate shall be conveyed to their respective owners ; but if by the surety, both estates are conveyed to him, and he of course holds that which belonged to his jjrin- cipal, subject to redemption by him. If neither principal nor surety redeem, the equities of both their estates are fore- closed (o). 1773. Where there were several mortgages of a wife's freehold and leasehold, by her and her husband to the same mortgagee, to secure several sums (the title deeds of the free- holds being also declared by memorandum to be deposited as a security for the sum secured by the leaseholds), and after a second security on the Avhole property to another incum- brancer, the husband became insolvent ; it being declared that the wife had a separate right to redeem the leaseholds ; 'the decree (p), after directing that, in taking the accounts, the costs should be apportioned between the securities of the prior morto-agee, and that the several amounts due on those securi- ties respectively should be distinguished, and after the usual provision for redemption by the second incumbrancers, and the husband's assignees successively, directed that the Avife should be at liberty to redeem the first mortgagees, or be foreclosed, as to the leaseholds, on payment of the amount due on the leasehold security ; that in case the second mort- gagees should redeem the first as to both securities, the mort- gagor's assignees might redeem them, or be foreclosed, upon which the wife should redeem the second incumbrancers in re- spect of the leaseholds, or be foreclosed ; and that in case the mortgagor's assignees should redeem either the first or the second incumbrancers as to both securities, the mortgagor's (o) Becket v. Micklethwaite, Set. ported also 5 De G. & S. 603) ; but the Dec. 210, ed. 2 ; 417, ed. 3 ; see Aid- observatioDS of Parker, V.-C, must be worth r. Robinson (1931 ^> which also grievously niisrejiortcd. The decree provides for redemption as between the ajipears to be framed with much care, principal and the surety. Compare IG Jur. 1134. (j?) Hill V. Edmonds (1902)- Ke- 984 RIGHTS OF DERIVATIVE MORTGAGEES. "svife should redeem the assignees in respect of the leasehold security, or be foreclosed as before {q). 1774. Where the husband and Avife joined in a mortgage of the wife's estate to secure the husband's debt, and the equity of redemption was limited to the wife, her heirs and assigns, it was held, on the bankruptcy of the husband, that the wife (the assignees Avaiving their prior right) might re- deem (1325). In the event of dismissal on non-redemption, the life estate of the bankrupt was ordered to be sold, and, after deduction of the proceeds from the debt, proof was to be admitted for the residue ; but in case of redemption the proof to stand for the whole amount, subject to any question as to the right to expunge it (r). If the mortgage of the wife's estate were executed by her and her husband, part of the money having been advanced to her before marriage, and the equity of redemption be reserved to husband and wife, the decree for foreclosure will be against them both (s) (1863). 1775. Where a security has been made subject to a deri- vative mortgage, the decree directs (^) an account of what is due to the orio-inal mortsragee or his assignee, and then of what is due to the derivative mortgagee. And that upon payment to the latter of the sum due to him, not exceeding the sum found due to the oi'iginal mortgagee, and on payment of the residue if any of what is due to the original mortgagee, both of them shall reconvey. In case of default and foreclo- sure accordingly, after the computation of the subsequent in- terest and costs due to the derivative mortgagee, he is ordered to reconvey, on payment of that amount by the original mort- gagee, and, in default of payment, the latter is foreclosed. According to another form (u), after taking accounts of ((/) For form of decree where mort- (?•) Glcaves v. Paine, 1 De G., J. & gagee had a mortgage of property be- S. 87 ; 9 Jur., N. S. 367 ; Ex parte longing to A. and B. for money ad- Paine, id. 701. vanced to them in different proportions, (s) Lewis v. Poole, 3 Gif . 636. and another mortgage of the separate (t) Dalton v. Wilson, Set. Dec. 204, property of A., and of his interest in ed. 2 ; 421, ed. 3. the joint property to secure his separate (w) Stephenson v. Green, Set. 230, debt, see Iliggins v. Frankis, 10 Jur. ed. 2 ; 473, ed. 3. 328. KIGIITS OF DERIVATIVE MORTGAGEES. 985 ■what is due to the urigintil anil derivative mortgagees re.sitcc- tively, the sum due to the latter is deducted from what is due to the former, and payment is ordered to be made to each of what is due to him; upon the making of which payments, both mortgagees are directed to reconvey as before, and on default, the bill (being a redemption bill) is dismissed. But the latter form seems less complete than the other, inasmuch as it assumes that less is due on the derivative than on the original mortgage. Where the original securities had been ordered to be set aside, on payment by the mortgagor of principal, interest and costs, the mortgagee and submortgagee may be ordered, upon payment of that amount into court, to reconvey and deliver up the deeds without Avaiting for the settlement of the ac- counts and equities between them (a:). 1776. If several of the co-owners of an estate agree to a sale, and the purchaser, believing that the agreement binds the entirety, pays off a mortgage on the property, the decree will be made against the shares of those only who have not concurred in the sale ; and it will provide for partition in case of redemption (y). Where after a decree in a foreclosure suit, a puisne mort- sao-ee made a derivative mortgage, and the derivative mort- gagee filed a new bill against all the parties to the former suit, praying that he might have the benefit of that suit, and might redeem the prior and foreclose the subsequent mort- s-ao-ees, the bill was dismissed (2:) as against all but the as- sio-nor Avith costs, and an account Avas directed of Avhat Avas due to the derivative mortgagee, for prhicipal, interest and costs of the second suit; upon payment of Avhich by the assignor, (the costs i)aid by liim to the other defendants in tlie second suit being on a rehearing disalloAved,) Avithin six months, the assignee should reconvey ; but that in default the assignor should be foreclosed, and the assignee be entitled in right of his security to the benefit of the decree and proceedings (.r) Lysaglit v. Wcstniacott, .1:5 1320, Bcav. 417. (2:) Booth w Crcswicko, 8 Sim. 352; (//) Davics c. Diu ios, .Tur., N. S. 8 Jur. 323. M. VOL. II. 3 S 986 rede:mptiox of annuities and chattels. in the second suit, and to stand in the place of and use the name of the assignor in the further prosecution of the first suit ; and in the meantime should be at liberty to attend the takiiio; of accounts in that suit. 1777. The decree for the redemption of an annuity does not difier in principle from the common redemption decree ; though, from the nature of the transaction, a preliminary de- claration, setting forth the terms upon which the security is redeemable, is often necessary. After (z) the usual account of what is due in respect of the principal and interest of the purchase-money or other sum upon payment of which redemp- tion is decreed, and of the costs of the grantee, and of the monies received by him on account of the annuity, the last- mentioned monies are ordered to be applied, first in reduction of interest, and then of the principal ; and reconveyance and the usual subsequent proceedings are directed, upon payment of what remains due. In case of overpayment, the grantee is directed to repay the overplus to the grantor. 1778. Where the mortgage is of land, and there is also a simple assignment of stock or other personal chattels, or a policy of assurance, the proper decree would be for sale of tKe chattel security in the first instance, and then for fore- closure in respect of the deficiency, lest by taking the estate first, the foreclosure should be opened by the subsequent sale of the policy (1800). But where (a) the assignment of the policy was followed by trusts for the application of the monies to become payable by \irtue of the policy, although it was doubted whether those trusts excluded the right to sell the policy, yet, inas- much as, according to the letter of the deed, if the mortgagor had died before the decree, the mortgagee would have been entitled to the full enjoyment of the security, by first apply- ing the policy monies, and then foreclosing for the deficiency, the literal construction was followed, and foreclosure alone was decreed; although it was liable to be opened, if the (z) Moore v. Rowe, Byne v. Vivian, (a) Dyson r. Moms, 1 Hare, 413. Set. 232, 233, ed. 2 ; 480, ed. 3. SUIT ON BEHALF OF CREDITORS. 987 mortfafi^ee slioulJ aftcnvards resort to the monies to bcconie payable on the policy (which he was allowed to retain for that purpose) to cover the amount for which the estate might be insuflicient. Hence will be seen the importance, where a mortgage of chattels is made as a collateral security to a mortgage of real estate, of not inserting any provisions which may affect the mortsjasee's rig-ht to an immediate sale of the chattels, and thereby abridge the remedy against the primary security also (h). 1779. A mortgagee who sues on behalf of himself and the other creditors of a deceased mortgagor (606) is entitled to the usual equitable mortgagee's (c) decree, and also to the general creditor's (d) decree. But as he may be satisfied out of the personal estate, as the primary fund for payment of the mortgage debt, and may not need the ap})lication of the seciu'ity, the course is (e) not to decree relief directly against the securitv bv wav of foreclosure, and also against the general estate, but after the account of what is due on the mortgage, to take the usual accounts of the personal estate and of the debts ; and if the personal estate should be insuffi- cient to pay the debts, then an account of the other real estate of the deceased, and to ascertain whether there be any and what other incumbrances on the real estate, other than that of the plaintiff: and upon further consideration the court will then be able to give the plaintiff the benefit of his security and of his right ao;ainst the general estate. 1780. The decree will be prefaced (in a redemption suit) by a declaration that the right of redemption is still subsist- ing, or (in a suit for foreclosure or sale) that the security is ( b ) For forms of decree on mortgages 405. of stock and chattels see Scton, 402— (rZ) Skey v. Bennett, 2 Y. & C. C. C. 400, cd. 3 ; and on a mortgage by one of 405. the ]iartners in a mine where the other (c) Ilanman v. Riley, 9 Iljire, App. ])artners have a right of pre-emption, xl. ; Stone v. Van lleytluiysen, IS Jiir. see Redmayne v. Forstcr, L. R., 2 Eq. 344 ; and see a decree in extenso in 467. Mai-shall v. M'Aravey, 3 Dm. & War. (c) Greenwood v. Firth, 2 Hare, 241, 23G. note ; Skey v. Bennett, 2 Y. & C. C. C. 3 s2 988 TROCESS or redemption or foreclosure. valid (y), where those matters have been in dispute ; and it declares, where it is necessary, the rights and priorities, as well of the several incumbrancers, as of any person who has paramount claims on the estate {g) : and after providing for other incidental matters, the decree directs that the necessary accounts be taken, and, where necessary, that rests be made (1623), and that the amount due from the mortgagee on account of his receipts be applied, first in payment of interest, and then of the principal of the mortgage security (A). It is also directed that the amount due to each mortgagee in re- spect of his own debt be added to whatever he may have paid for the redemption of preceding incumbrancers, and all sums to which the court may consider him to be entitled for im- provements (1611), or payments made in respect or for the protection (1606) of his security or of the estate (/). And upon payment of the siun thus ascertained to be due, by the person whose turn it is to redeem, the mortgagee is ordered to reconvey the estate to or according to the direction of such person, where a conveyance is necessary, and to deliver to him all deeds and other documents relating to the estate. 1781. If the money be not duly paid, the defaulter, being a defendant, is generally foreclosed (1764); but if he be the ])laintifF in a redemption suit, his bill will be dismissed (1881), and thereupon the mortgagee becomes entitled to hold the estate, free from the debts, in payment of which default has been made. But where a sale has been decreed in lieu of foreclosure, the sale takes place in default of payment at the appointed time, and the produce, being distributed amongst the incum- brancers according to their several rights and jmorities, the surplus, if any, is paid over to the person who was the ulti- mate owner of the equity of redemption. 1782. If an estate subject to a mortgage be sold abso- (/) ITolmcs V. Turner, 7 ITarc, 300, (A) See In Thomeycroft v. Crockett, note and form ; Faulkner v. JJanicl, '.i 2 H. L. C. 240. Hare, 199, establishing judgment debt; (/) For form of foreclosure decree Carlon v. Farlar, 8 Beav. 52G ; and see by consent \vitliout account, see Boy- Set. 4',.'), ed. 3. dell r. Manby, ITarc, liii. iff) Jones V. Griffith, 2 Coll. 207. TIME ALLOWED FOU TAYMENT. 989 liitely uiuler an extent, and the money paid into court, the crown will not be allowed upon motion to })ay ofi' the mort- gagee at once, without his consent, but a reierence will be ordered to ascertain Avhut is due on tlie mortgage (h). Of /he Time allowed for Pdijment. 1783. To the person entitled to the first right to redeem, it is the practice to give six months from the date of the certificate, "which fixes the amount of the debt ; and the equitable, as well as the legal, mortgagee has a right to this time, whether the decree be for foreclosure or sale il), and although the security be given for a debt, which does not carry interest (7/1). And in a suit by a creditor to enforce his security under a conveyance by the debtor, upon trust to sell in case of nonpayment of principal and interest by a given day, with covenants by the creditor not to sell without giving six months' notice, and by the debtor to pay the debt and interest, but with no express proviso for redemption, the debtor's power of preventing the trust for sale from arising, by payment of the debt, amounts to a right of redemption, and entitles him to the common equity against a mortgagee coming to enforce his security {n). 1784. Whether a judgment debtor, when his creditor comes for foreclosure or sale under 1 & 2 Vict. c. 110, s. 13, is entitled to six months to redeem, seems to have been doubted, the point having been left for consideration and the time afterwards given by consent. There seems, how- ever, to be little room for doubt; the judgment creditor is a (piasi equitable mortgagee (o), and having the remedies incident to that character, his debtor should clearly have the corresponding equities. (Jt) The King v. Coombcs, 1 Pr. 207. Wliitti'v, 17 Jiir. 7.M. (/) Parker r. Ilouscfield, 2 M. & K. (w) Meller v. Woods, 1 Keen, 16. 41!), Newton i'. Aklous, ^Meux r. («) Bell r. Carter, 17 Bcav. 11 ; 17 Ferae, Spring v. Allen, cited tlicrc ; Jur. 478. Thorpe v. Gartside, 2 Y. & C. 7^0 ; (o) Ex parte Boyle, 17 Jur. "J70 ; ?< Price V. Carver, 3 M. & C. 157— 1(53 ; De G., M. & G. 530. But sec now 27 Lister v. Tumor, 5 Ilai-e, 281, 293 ; & 28 Vict. c. 112 (138)- King I'. Leach, 2 Ilaic, 57 ; Lloyd r. 990 ONE TIME TO SEVERAL CKEDITORS. 1785. Each of the persons entitled to a subsequent right of redemption has three months from the date of the further certificate ; and in the case of a derivative mortgage, this rule applies to the original mortgagee's right to redeem, upon default of redemption by the mortgagor of the original and derivative mortgages {p). 1786. But where several judgment creditors are entitled to subsequent rights of redemption, one period only of three months is given to them all, it being considered that they ought not to stand exactly in the position of persons yv\\o have advanced money on a security ; the delay which would arise from giving them successive periods being also a good reason for this rule (</). And it may happen, as where eight subsequent incumbrances were efiected upon one day, that only a single right of redemption will be given to the several mortgagees (r). The same rule is applied in the case of re- demption by the members of a building society, to whom an estate purchased by their trustees has been allotted (5) ; and generally to persons claiming under the same instrument, although, as in the case of tenant for life and remainderman, their periods of enjoyment are different (^); but where the equity of redemption in different parts of the mortgaged estate has been vested in several persons as purchasers, or purchasers and mortgagees, by instruments of different dates, they will have successive rights of redemption according to priority of date, as in the case of successive mortgagees of the same property {u). In case more than one of several persons entitled to redeem should be prepared to redeem, at the appointed time, an application must be made to the court, which it is presumed (/>) Dalton V. Wilson, Set. 205, cd. 2; N. S. 200. 421, ed. 3. (.s) Teto v. Hammond, 30 Beav. 405; {q) Radcliff v. Salmon, 4 De G. & 8 Jur., N. S. 550. S. 526 ; Long v. Storic, V.-C. T. 18 {t) See per Wood, V.-C, Beevor v. Feb. 1852 ; Stead v. Banks, 5 l)e G. & Luck, L. R., 4 Eq. 537. S. 560 ; 16 Jur. 945 ; Bates v. Hill- {u) Titley v. Davies, 2 Y. & C. C. C. coat, 16 Beav. 139 ; Dec. Set. 452, 399, n. ; Beevor v. Luck, not^rithstand- ed. 3. ing Edwards v. Martin, 4 Jur., N. S. (r) Long V. Storie, 23 L. J. (Ch.) 1044 ; 28 L. J., Ch. 49. ENLARGING TIME FOR PAYMENT. 991 would then make a special order, enabling each of such credi- tors to redeem according to his priority (v). The direction for " payment within six months after the date of the certificate," being matter which would have been inserted by the registrar as part of a usual order, may be added by way of correction of the decree, on motion or pe- tition (x). 1787. Contrary to the usual legal computation, by which, except in the case of mercantile instruments (y), the word " month " means prima facie a lunar month, a calendar month is implied where the word is used alone, to denote the period allowed for redemption (r). 1788. AVhere the person to whom the money is payable under the decree is a trustee, who appears on the proceedings to have been guilty of breaches of trust, and the court is satisfied that he is an improper person to receive the money he will be restrained from doing so, and another person will be appointed. The solicitor of the cestuis que trust may be appointed, but not a person who is not an officer of the court, unless he give security, and the money will be paid to the person se- lected, upon his undertaking to pay it into court. The application may be properly made by petition (a). Of enlarging the Time for Payment, and of opening the Foreclosure. 1789. The mortgagor may be relieved from the strict terms of that part of the decree in a foreclosure suit which directs payment of the redemption money on a certain day, either by a postponement of that day, or by an actual opening of the foreclosure, after the day has been sufi^ered to pass (e) See for form of decree, Edwards in Ireland (Uevcreux v. Bradstreet, V. Martin, 28 L. J., Ch. 49. Wall. Lvne, 338), and under 8 Geo. 1, (ar) Bird i'. Heath, 6 Hare, 236. See c. 2, Ireland, s. 4, as to time for redcmp- Cons. Ord. xxiii. s. 21. tion to mortgagee of evicted lessee. (y) Reg. V. Inhabitants of Chawton, (Bidduliih v. St. John, 2 Sch. & Lcf. IQ. B. 247. 512.) (:) Anon., Bam. Ch. 324 ; 2 Eq. {a) Snare i'. Baker, 13 Jur. 203. Ca. Abr. 605. So under 4 Geo. 1, c. 5, dd2 SEVEllAL ORDERS FOR ENLARGEMENT. without payment. The application is made on motion by the person entitled to redeem, or it may be made at the hearing of a special ajiplication, by the mortgagee, to make the fore- closure absolute (b). 1 790. It is only in a foreclosure suit, as a general rule, and not in a suit for redemption, that this indulgence is granted ; because, in the latter case, the mortgagor comes to the court for relief, professing that his money is ready, but, in a foreclosure suit, he redeems by compulsion (c). So the morto-ao-or will not be suffered to redeem after the day ap- pointed in a redemption suit has passed, and before any order has been made to dismiss the bill, though he tender the prin- cipal and interest due to the day of the tender (d). But it seems that, on special circumstances, this relief can also be had in a suit for redemption (e). 1791. Upon good cause shown, the court does not stop at a single enlargement. Relief has been given three, and even four times in succession ; and this, although the time fixed by- previous orders of enlargement have been thereby expressed to be peremptory, and even though the mortgagor have un- dertaken, by signing the Registrar's book, not to ask for any further time (/). But the time is not enlarged, as of course, even upon the first application. Some reason (though a very strong one is not necessary) must be given ; as that the defendant has used his best endeavours to find an assignee without success, but that if time be granted there is a reasonable prospect of getting the money (//); or that negotiations for that purpose are actually pending. And the magnitude of the sum in- volved, and of the arrears of interest, are circumstances to which weight will be given, but not it seems to the latter, if the arrears have been suffered to increase (7i). (/-) Clay V. , 9 Sim. 317, n. ; (/) Anon., Bam. Ch. 221 ; Edwards Lee V. Heath, id. 307, n. ; Aldeii v. v. Cunliffe, 1 Mad. 287. Foster, 5 Beav. 592. ( ff) Nanny v. Edwards, 4 Russ. 124 ; (c) Novosiclski v. "Wakefield, 17 Eyre v. Hanson, 2 Beav. 478 ; Quarles Ves. 417. ■«• Knight, 8 Price, 630. {d) Faulkner v. Bolton, 7 Sim. 310. (//) Ilolford v. Yate, 1 Kay & Jo. (e) Tipping v. Hawes, 10 Aug. 1810, 677. cited 17 Ves. 417. FOUM OF OKDEli FOU ENLAllGL.MKNT. 993 But something more than this seems necessary upon subse- quent applications; such as evidence (z) that some steps have been actually taken, as the result of which the money is likely to be forthcoming. And a strong case of unex])ected delay or difficulty must be made out to support a tliinl or fouith ii|)plication. 1792. Under the usual circumstances of an application by the mortgagor, by reason of his being unable to raise the money in time, it is necessary to show that the estate is an ample security for the debt (A), which fact was foi-merly stated on the face of the order {I). Where, however, a necessity for enlarging the tune has arisen from the opening of the account by the act of the mortgagee, the order will be made, although the security appear on the evidence to be of doubtful suffi- ciency ; but care will be taken that nothing is added by the delay to the amount of the debt {in). 1793. The period granted upon the first application is usually six months, and it does not appear that any longer time has been granted at once. The like period has also been given on a subsequent application, but the usual period has then varied from five to three months according to the cir- cumstances. 1794. The order commonly directs, that the time be en- larged upon payment {n) by the mortgagor to the mortgagee, on or before the day originally fixed for payment of the prin- cipal, interest and costs of the amount certified to be due for interest and costs on the mortgage ; but where the large sum of 8,000Z. was due for interest, the first order was made on payment of 3,000/. only on account of interest (o). The general condition of payment of interest will not be relaxed by reason of the infancy of the person entitled to redeem (jo). (/) Edwards v. CunliiTc, 1 Mad. (m) Geldard i». Hornby, snpra. 287. ('0 Edwards v. Cunlitfc, 1 Mad. "-'87; (A) Eyre r. Hanson, 2 IJcav. 478; Scton, ]i»7, ed. 2 ; 390, ed. 3. Edwards v. Cunliffc, 1 Mad. 287; (o) Holford v. Yate, 1 Kay & Jo. Nanny v. Edwards, 4 lluss. 124 ; Anon., 677. Bam. Ch. 221. ( j>) Coonibe r. Stewart, 13 Bcav. (/) Gcldard v. Horuby, 1 Hare, 251. Ill, 994 MHEN RIGHT TO REDEEM IS DISPUTED. But if, from the circumstances of the case, or the shortness of the interval between the time of application and of payment under the decree, there is likely to be a difficulty in making the payment in due time, the court will direct enlargement on payment of the interest and costs in a month, or some other convenient time from the date of the order {q). And if there be any doubt as to the sufficiency of the security, the condition will also be imposed of immediate payment of the interest to accrue down to the day fixed for the ultimate payment of the mortgage debt (r). (1668.) If the tune fixed for payment be likely to expire before the hearing of objections to the certificate which fixes the time of payment, the court will either enlarge the time on the usual application, or (s) if the defendant omit to apply, a new day will be appointed, even after the objections have been over- ruled. 1795. Where the right to redeem is in dispute, and time is required to prosecute an appeal, the object of the court is to make an order, which, without touching the decree, will yet secure to the person redeeming the recovery of the money which the decree requires him to pay. In such a case {t) the terms imposed will be the payment into court of principal and arrears of interest, consent to a receiver, and payment of interest from the filing of the bill, or payment of principal, interest, and costs of suit and of the application. The amount paid in will be ordered to be invested at the risk of the appli- cant (m) ; and if the dividends or any interest be ordered to be paid to the mortgagee it will be upon his undertaking to repay the same upon the reversal of the decree. It appears to have been hinted, that the mortgagee's refusal to produce the title deeds for the mortgagor's inspection (582), although the court would not order such production, would be {(f) Eyre v. Hanson, 2 Bcav. 478; Bedford, 17 Ves. 380 ; Finch i;. Shaw, Geldard v. Hornby, 1 Hare, 251. 20 Bcav. 555 ; and see Holford -y. Yate, (r) Geldard v. Hornby, supra. 1 Kay & Jo. 677. («) Kenvoize v. Cooper, 1 Sim. & St. (?/) Finch v. Shaw, 20 Beav. 555 ; 364. see Taylor v. Waters, 1 Myl. & C. 266. (t) Monkhouse v. Corporation of OrENING FORECLOSURE AFTER DEFAULT. 995 a good reason for enlarging the time (x) ; but tliis opinion, if ' it were really expressed, seems open to great doubt. 1 796. The order -will in all cases proceed to foreclose the mortgagor upon non-payment at the appointed time of the sum, upon the conditional payment of which the order is made (y). And if the condition be not complied with the order of foreclosure absolute may be made as of course, and its discharge has been refused (z) with costs, though it was sworn to have been obtained by surprise during a treaty be- tween the parties, and notwithstanding an affidavit by the tenant in possession, that he was willing to purchase the estate for more than twice as much as was due on the security. But the order will be discharged if the mortgagee by his own act (as by receiving rent) vaiy the amount due between the date of the certificate and of the order absolute («). 1797. The court will also appoint a new day for payment of the mortgage debt, after default has been made on the day first fixed ; and even after inrolment of the decree, or of the order absolute for foreclosure (b). And this has been done in favour of the heir of the mortgagor, where the latter was foreclosed on his own consent, given by signing the registrar's book (c). But then the applicant must not only show that he will be able to redeem, if further time be given, but he must also account satisfactorily for non-payment at the proper time. The expectation that the money will be ready, founded upon a treaty already commenced with a proposed assignee ; ignorance of the confimiation of the master's report ; misin- formation as to the day fixed for payment ; irregularity in the proceedings of the suit, prior to the order absolute ; the (a*) Per Lord King, Mos. 24G. Ismoord v. Claypool, 9 Sim. 317, ii. ( y) Edwards v. Ciuilifl'e, 1 Mad. Nanfan i;. Perkins, 9 Sim. 308, n. 287 ; Eyre v. Hanson, 2 Beav. 478, Cronii)ton t'. Earl of Effingham, id and other cases. 311, n. ; Jones v. Creswicke, id. 304 ; (2) Jones V. Koberts, M'Clcl. & Y. "> Jur. 7G3 ; Booth v. Creswicke, 6 id 567. 1023 ; Ford v. Wastcll, 6 Hare, 229 (a) Holford v. Yate, 1 Kay & Jo. 2 Ph. 591 ; Lee v. Heath, 9 Sim. 306, n 677 ; see statement of the case. (c) Abney r. Wordsworth, 9 Sim {h) Cocker r. Bcvis, 1 Ch. Ca. 61 ; 317, n. 996 CIRCUMSTANCES UNDER WlllCn * illness, or accidental inability to travel, of the person charged with payment of the money, and poverty, which could be shown to be but temporary, are matters which in the various cases (c/) have been admitted as reasons for granting further time, after inrolment of the decree for foreclosure. The order to enlarge the time after inrolment of the order absolute will be made without vacating the inrolment, and may therefore, it is said, be made by a puisne judge, without leavino- room for the objection that it aiFects an order of the Lord Chancellor {e). 1798. The time of payment may also be postponed, by the death of one of several mortgagees entitled on a joint account where payment was directed to be made to them all (/), or by reason of some act done by the mortgagee ; as if, being in possession, he receive rents, or other monies on account of the estate, after the sum due has been certified {g), because the amount being then varied, the account must be carried on, and a new day fixed for payment (1630). This may be done on the motion of either of the parties. And if the person en- titled to redeem make objection, the mortgagee will not be sufiered to verify by affidavit the amount received, and pay it over at once (A). But it is not necessary to carry on the ac- count and to fix a new day where the rent has been received after default, though before the affidavit of default was made {i). The mortgagee is not on the other hand entitled to any right to postpone redemption, after the day fixed for pay- (^d) See the cases cited above, and the order absolute to stand. See also see Joachim v. M'Douall, 9 Sim. 314, Crompton v. Lee, 9 Sim. 311, n. ; Nan- n. ; Ford i-. Wastcll, 6 Ilarc, 229 ; 2 fan v. Perkins, id. 308, n. Ph. 591. (/) Blackburn v. Caine, 22 Beav. (e) Ford r.Wastell, supra ; Thornhill G14 ; Kingsford v. Poile, 8 W. R. 110. V. Manning, 1 Sim. N. S. 4.51, where it {g) Garlick v. Jackson, 4 Beav. 154; is said to have been Sir J. Wigram's Aldcn i'. Foster, 5 Beav. 592 ; Ellis v. impression, that the enlargement leaves Griffith.s, 7 Beav. 83. the order absolute untouched (and see (/i) Buchanan i". Grccnway, 12 Beav. Ismoord v. Claypool, 9 Sim. 317, n.). 355 ; but see Oxenham v. Ellis, 18 But Sir J. Wigram said, that the order Beav. 593. should be to vacate the inrolment and (/') Constable v. Howick, 5 Jur., discharge the order absolute on con- N. S. 331. dition of payment, and on non-payment FORECLOSURE WILL BE OPENED. 997 ment, until payment by the person redeemin*^, of sums which ' liave been subsequently added to the debt, in respect of anotlier security ; because this would be to alter a decree u])()n an in- terlocutory application (A). It seems also, that it is not the practice (/) to put the person redeeming, upon terms of immediate payment of the interest and costs, when the time is thus enlarged by reason of the act of the mortgagee ; but the order has been made in that form (w?), where there was a doubt as to the sufficiency of the security. 1799. The foreclosure may also be opened by the act of the mortgagee (w), if he sue the mortgagor upon his covenant or bond, where the estate proves insufficient to satisfy the mortgage debt. And this, though the decree have been signed and inrolled(o). 1800. The mortgagee, it will be remembered, has a general right to enforce all his remedies at the same time (603). Now, if he proceed first upon his covenant or bond, and obtain part payment of his debt, he may still foreclose for the residue ; but, if he proceed by foreclosure first, and then, finding the estate insufficient to satisfy the debt, goes on to sue upon his covenant or bond for the deficiency, equity will only permit him to do this, upon giving a new right of redemption to the mortgagor: for if the mortgagee take his legal remedy first, the mortgagor retains his right to redeem, and the mortgagee ought not, by electing to take the estate first, to be able to get both it and the debt. And the ri^-hts of the mortgao-or and morto;ao:ee beins; cor- relative, the latter is not entitled to sue for the deficiency after foreclosure, unless he can give to the morto-acjor his ro- ciprocal right of redemption. So that if, by selling the estate to a stranger, the mortgagor be prevented from redeeming, equity will also deprive the mortgagee of his right to sue for the deficiency, and will nut sufi'er liiin to set up his own act, (^') Barron r. Lanccfidd, 17 Boav. (w) Geklard 7'. ITonihy, 1 Hare, 2.' I. 208. (w) Cook /•. Sadler. L' Vern. 2:!:.. (/) Buchanan c. C;rcon\vny, I'J \Wnv. (o) Daslnvood r. Blythway, 1 Eq. 355, and other cases above. Ca. Abr. 317. 998 CIRCUMSTANCES UNDER WHICH as a reason for suino-, without giving a new right of redemp- tion (;?) (998, 1778). 1801. It seems consistent Avith this principle, that if the estate have been put up for sale, and bought in by the mort- gagee, or a trustee for him, the rights of the parties should remain as if there had been no sale ; because the estate, or the power of reconveyance, remains in the mortgagee, and redemp- tion can still be had. It seems, in fact, to have been the opinion of Lord Thurlow, in such a case, that the mortgagee mio-ht proceed at law, and an offer was made to continue the injunction against the judgment, if the plaintiff would bring the money into court. But the bill of the mortgagor was not directly for redemption, but only for delivery of the bond, and for an injunction against the judgment ; and it Avas not said whether or not the condition of redemption should be attached to the right to sue ((/). In a note supposed to have been made by Richards, C. B. (r), when at the bar, it is said to have been held in this case, that the mortgagee may sell, and also sue on his bond, there being no reason why a lender should lose part of his debt, and not be able to enforce his additional security. But this strikes at the whole rule, which, permitting the mortgagee to sue first, and then to foreclose, restrains him from suing after foreclosure, without giving a new right to redeem ; a rule which is con- sistent with equity, and a proper check upon speculating morto-agees. The lender has ample means of security. He is not bound, at the outset, to lend his money upon an estate of the sufficiency of which he cannot assure himself. Before the foreclosure is complete he may use all his remedies at once, and if he foreclose he has a chance of profit. Why then should he complain if the estate turn out of less value than the debt ? It has been said (.9), that until the estate be sold he ( fi) Lockhart r. Hardy, '.) Heav. 349 ; been disputed, and the confusion of the and sec Tookc v. Hartley, 2 Bro. C. C. arguments as stated is such, that there 125 ; 2 Dick. 785 ; and Perry v. Bar- cannot be said to be any clear authority kcr, 8 Ves. 527, and 13 id. 198. on the point. iq) Tooke v. Hartley, 2 Bro. C. C. (r) See 2 Bro. C. C. Belt's ed. 125. The correctness of the report has (.9) Loyd v. Mansell, 2 P. Wms. 73. FORECLOSURE AVILL BE OPEXEI). 999 c.'uinot tell its value, and tlierelure does not know whether liLs debt be satisfied or not. But, if a purchaser out of possession can judge of the value of the estate to buy, the mortgagee in possession can surely form as good an estimate. 1802. The foreclosure will also be opened if the decree have been obtained by false evidence (t), or other fraudulent or collusive {u) practice ; as other decrees are set aside under the like circumstances (x). So an estate was held (y) to be redeemable, notwithstanding a release of the equity of redemption, more than twenty years old, and a decree of foreclosure by consent, more than five years old, signed and enrolled ; because the release was made upon a secret trust to pay the mortgagor an annuity, the land being also of much greater value than the debt. And after sixteen years a decree has been opened (r), under the concur- rent circumstances of a great excess in the value of the estate, and the distressed condition of the mortsasor : the last cir- cumstance being probably an indication of oppression on the mortgagee's part; for the court is generally unwilling to open a foreclosure after long acquiescence, especially if buildings or other improvements, or settlements, have been made on the faith of the decree, and where the foreclosure has been by con- sent ; and has refused such relief after six years (a). 1 803. The foreclosure cannot be opened in part ; and a bill which admits the validity of the decree as to some of the parties to the suit, and seeks to open it only as to one of them, is therefore demurrable (b). 1 804. The decree will not be opened after it has been signed and inrolled, on the mere ground of the overvalue of the estate (though it has been said that a sale at an undervalue would be a substantial objection on a bill to set aside the (0 Loyd V. Manscll. 2 P. Wnis. 73. 47G, note to j.l. 1 ; Lant v. Crisp, id. («) Ilarvcy v. Tcbbutt, 1 J. & W. 4(;;) ; Floctwootl v. .laiiscii, 2 Atk. 4G7 ; r.i7. and see Thoniliill r. Manninj^, 1 Sim., {x) Gore v. Stacpoole, 1 Dow, 18. N* S. 451 ; Jones r. Ivendrick, 2 Eq. (y) Morley r. Elways, 1 Cli. Ca. Ca. Alir. 002. 107. {Ij) Patch r. Ward, 4 Gif. 90: 9 (z) Burgh t'. Langton, 1") Vin. 470. Jur., N. S. 373. («) Tooke V. Bisliop of Ely, lo Yin. 1000 M'HEN FORECLOSURE WILL BE OPENED. sale) (f), or of" parol declarations concerning the mortgage, if there be no fraud (d). And a bill so filed for redemption, on the gromid of parol declarations by the mortgagee, both before and after the decree, that he was willing to take his money, the fraud being denied, was dismissed with costs {c). Nor can a mortgagor be relieved against a decree of fore- closure, obtained by consent upon unwritten terms, alleged to have been agreed upon by the solicitors of both parties, and Avith which the mortgagee afterwards refused to comply, by a suit for performance of the agreement ; parol evidence of the tenns of the agreement being inadmissible : but it seems, that upon sufficient parol evidence, the foreclosure might have been opened, on the ground that the agreement concerned an order of court, and was made by persons competent to agree upon its terms (f). 1805. The foreclosure will not be opened, by reason that the mortgage has been mentioned by the mortgagee in his will as a debt {</), as mortgage money, or as an interest in pro- perty mortgaged to him (A) ; but the i:)roperty will pass by the will, according to the actual interest of the testator. 1 806. The circumstance that a decree for sale, erroneously directs payment of the surplus money to the tenant for life, will not be a reason for opening the decree after a lapse of some years, if the sale have been fairly conducted, and there were in fact no surplus {i) ; though the objection would have been substantial, if a surplus had really been paid to the te- nant for life ; and redemption may be afterwards decreed of an estate which has been sold by the mortgagee, under his power, if due notice were not given according to the deed (k), 1807. If the mortgagor have not insisted at the hearing of a foreclosure suit, or on the taking of the accounts, upon (r) Per Lord Manners, C, JA<^ht- Abr. 47C, n., pi. 1 ; 2 Eq. Ca. Abr. f,08. bume V. Swift, 2 Ba. & Be. 207. (/t) Silberschihlt v. Schiott, 3 Ves. (d ) Whishall v. Short, 7 Vin. 397. & B. 45 ; Legros v. Cockerell, 5 Sim. {(■) Roscarrick r. Barton, 1 Ch. Ca. 384. 218. (/■) Lightbume v. Swift, 2 Ba. & Be. (/) Cox V. Pecle, 2 Bro. C. C. 334. 207. ((/) Tooke V. Bisliop of Ely, 15 Vin. (k) See Smith v. Fox, G Hare, 38G. CONVEYANCE AND DELIVERY OF POSSESSION. 1001 his right to redeem, he ought not to he admitted to redeem afterwards, except upon new matter. And u])on filing a bill for redemption, after he has acquiesced in a foreclosure de- cree, the time for redemption under that decree ought not to be enlarged on motion ; because (Z), notwithstanding the fore- closure, the plaint iir will have the benefit at the hearing of any ociuity Avhich may arise upon his redemption bill. 1808. If an incumbrancer Avho seeks to open the foreclo- sure and to redeem, on the ground that he was not a party to the suit, be in an obscure station and his means doubtful, he will be ordered to give security for costs in case he do not redeem {rn). Of the Convei/ance and Deliver^/ of Possession of the Estate on Redemptioji, Foreclosure or Sale. 1809. The mortgagee cannot refuse, when the estate is redeemed, to restore possession of it to the mortgagor, or those claiming under him; having no right, Avhether the mort- gagor's title be good or bad, to dispute it ; or to deal with the security in such a manner, that upon discharge of the debt the estate cannot be restored (n), nor can the mortgagee claim to retain the estate on the ground that the mortgagor has covenanted with the mortgagee with respect to a separate matter, upon which a judgment, Avhich would be a lien upon the laud, might ultimately be obtained ; or that another debt might be added to the security in case of a sale where no sale took place (o); and where, after decree to account and pending exceptions to the master's report, the mortgagee committed waste, he was ordered to redeliver possession to the mort- gagor ; who, however, being a pauper, was ordered to give (J.) Fleetwood v. Jansen, 2 Atk. 63, 70 ; Thornton r. Court, 3 De G., 4G7. j\r. & G. 293; Walker v. Jones, L. R., 1 (;h) Bird v. Gandy, 7 Vin. Abr. 45, P. C. 50. pi. 20; 2 Eq. Ca. Abr. 251, n. ; and (o) Mayor of Brecon v. Seymour, 5 see Stevens v. Williams, 1 Sim., N. S. Jur., N. S. 10G9 ; Chilton v. Carring- 545. ton, 15 C. B. 95. («) Tasker v. Small, 3 Myl. & Cr. M. VOL. II. 3 T 1002 DIRECTIONS FOR RECOISTV^EYANCE security to abide the event of the account (p). At the present day a receiver would probably be appointed under such cir- cumstances. Where the mortgagee has notice of a prior equitable right in a person claiming under the mortgagor, he may refuse to reassign the legal estate to the mortgagor, or a puisne incumbrancer without the consent of the owner of the prior right. Therefore {q), where a mortgagee B. was paid off by C, but refused to assign to him upon the ground of a prior equitable lien in A. ; in suits filed by the contending parties it was decreed that A. might redeem C, and in that case that B. should assign to A. without prejudice; no assign- ment being necessary by C. or the mortgagor. In case of his not paying C, A. to be foreclosed. In case of payment A. to be redeemed by the mortgagor on payment of what he should have paid C, viz., his own debt and costs and B.'s costs which he was decreed to pay. The mortgagor to be foreclosed on nonpayment. And until redemption the mortgagee may hold the estate against everybody who has not a paramount title, and if pos- session have been got against the mortgagee by fraud, pending the suit, the estate must be restored before redemption (r). 1810. Where a legal security is the subject of the suit, the decree provides, that, upon payment, the mortgagee shall surrender or reconvey to the person redeeming (whether he be the mortgagor himself, or one claiming under him as a puisne mortgagee or otherwise), free from incumbrances by the mortgagee, or any claiming under him ; and shall deliver upon oath all deeds and other documents relating to the es- tate. If the mortgagee be in possession, it is also proper to add {s), that he shall deliver possession of the mortgaged es- tate ; for the person redeeming is not to be put to his eject- ment after payment to recover the possession. The decree then provides, that, in default of payment, the (p) Hanson v. Derby, 1 Vera. 392. pi. 13 ; and see Tyson v. Cox, T. & R. (q) Banks v. Whittall, 1 De G. & S. 395. 541. (s) Yates v. Tlambly, 2 Atk. 3G3 ; (r) Lant v. Crispe, 2 Eq. Ca. Abr. Arthur v. lijggs, Evans v. Kiusey, Set. 599 ; 15 Vin." Abr. " Mortgage," 409, 4G8, ed. 3. AND DELIVERY OF POSSESSION. 1003 person to whom tlie right of redemption was given, do stand foreclosed ; but this should not be followed by any order to give possession, because the legal estate is already in the mortgagee, and he is left to his ejectment {t), if he cannot otherwise get into jiossession. Where the security is equitable, the mortgagee upon re- demption is ordered to deliver up all deeds, &c., in his custody relating to the estate, to the person redeeming, but in case of nonpayment, the party making default is ordered to convey or surrender to the mortgagee, free from incumbrances (?<)(! 741); or if a sale be directed, the produce is ordered to be paid to the credit of the cause, to be applied as the decree directs. If the estate have been sold by the mortgagee under his power of sale, the sur})lus money paid into court will be paid out to the administrator of the mortgajjor, though the heir-at- law disputing the validity of the mortgage have commenced an ejectment against the purchaser (x). 1811. The reconveyance is directed in terms applicable to the interest of the person to whom it is to be made. AVhere a single right of redemption is given to several, one of Avhom may redeem separately, as to successive tenants for life (y), to tenant for life, or hi^ assignee, and tenant in tail, joint te- nants (r), or tenants in common, the decree directs a convey- ance to be made to them, or to such of them as shall redeem ; or, as to the latter, the conveyances may be ordered to be made to them of their specified proportions of the equity of redemption (a). Where the right is given to representatives, or to husband and wife, the order is merely to convey to them or as they shall appoint. Settled estates are directed to be conveyed upon the trusts of the will or settlement, under which the limitations have (0 Sutton V. Stone, 2 Atk. 101 ; 9 W. R. 799. "Wood i;. Hodges, 2 Towl. Exch. Pr. (y) Ayuslcy r. Kecd, Set. IGG, ed. 2; 342. 294, ed. 3. («) Holmes v. Turner, 7 Hare, 370, (r) Sober v. Kemp, 6 Hare, 1G2, n. n. ; Footner v. Sturgis, 5 De G. & S. (fl) Sambrooke c. Hanbury, Set. 208, 737; Pryce u. Bury, 17 Jur. 1173. ed. 2; 427, ed. 3; Thonieycroft r. (j) In re Mary Smith's Mortgage, Crockett, 2 II. of L. C. 247. 3t 2 1004 DIRECTIONS FOR AND FORM OF been created (/>). A^^lere a single right is given to a person claiming under a settlement, and to another party, to redeem settled and unsettled estates, the former being entitled to re- deem all, but the latter those which are unsettled only, the unsettled estates are directed to be conveyed to the redeeming parties, or to him Avho shall redeem, and the settled estates upon the trusts of the settlement (c). And in case of infancy, the reconveyance is ordered to be made to such person as shall for that purpose be named in the chief clerk's certificate (c?). 1812. A reconveyance upon payment of the debt, where the time has been enlarged after inrolment of the order abso- lute for foreclosure, will be made subject to any contract which the mortgagee has entered into concerning the estate after the inrolment ; upon the faith and from the date of which he has full power to deal with the estate as his own (e). 1 81 3. And upon foreclosure, if there be a paramount claim (such as dower), unaffected by the decree, the right of the claimant will be declared, or the foreclosure will be expressly made subject to it {f). And incumbrancers taking the estate, or money which represents it(_j7), will be ordered to discharge any liabilities past or future, to which the estate may be sub- ject, or to make any payments which other incumbrancers ought to have received out of the estate. So tenants by the curtesy (A), and other tenants for life, will be ordered, upon taking the estate, to pay the past and future interest upon the mortgage (1643). 1814. If the person in whom the estate will vest by virtue of the foreclosure be a trustee, the decree declares, that in case of foreclosure such person is to be considered as a trustee of the mortgaged premises for the benefit of the cestuis que trust, according to their respective proportions of the mort- gage debt {i). And so on redemption by a person entitled to (i) AjTisley ». Reed, Set. Dec. supra; (/) Jones V.Griffith, 2 Coll. 208; Colycr V. Colyer, 9 L. T., N. S. 214. Set. 205, ed. 2 ; 424, ed. 3. (c) Chappell v. Ilces, 1 De G., M. & (^) Sec Barnes v. Racster, 1709- G. 393. Ui) Dale v. Taylor, Set. 231, ed. 2 ; id) Seton, ed. 3, p. 689. 475, ed. 3. (c) Thonihill v. Manning, ] Sim. (?) Set. 20G, ed. 2 ; 424, cd. 3. N. S. 451. RECONVEYANCE OF ESTATE. 1005 a partial interest under the settlement, the inoilg;i<ree nuiy require the insertion of an express declaration in the recon- veyance, that it is made subject to the trusts of the settle- ment (k). 1816, The mortgagee is not obliged to assign the mortgage debt to the mortgagor upon redemption ; or to a purchaser, when the security is paid oflp out of the proceeds of a sale under a decree (/) ; or to convey to any other person as a mortgagee in his own place; being bound only to reconvey the estate to the owner of the equity of redemption i^m). 1816. IJut where a i)urchaser from the mortsfajror buvs free from incumbrances, and, desiring to take an assignment of the security, procures the mortgagee to release the mort- gagor from all liability in respect of the mortgage debt, and protects him against any additional expense arising from the form of the conveyance, the mortgagor cannot refuse to con- vey the equity of redemption in such a manner as to keep the security on foot(7«). 1817. On the discharge of a mortgage, under ordinary circumstances, the estate is reconvey ed to the owner of the equity of redemption, or the mortgage term is surrendered by a concise deed of conveyance or surrender, purporting to be made in consideration of the payment of all monies due in respect of the security ; with a covenant by the reconveying party that he has done no act to incumber (o). The same course is usually adopted on the discharge of an equitable mortgage created by deed ; although by the mere receipt for the mortgage debt the mortsasee's interest in the estate be- comes revested (j9). "Co" (/.') Wicks c. Scrivcns, 1 J. & IT. 21.">. tator, or only against his o\vn. The (Z) James v. Biou, 3 Sw. 23-4 ; Col- opinions given by counsel being dif- ycr V. Colycr, 9 L. T., N. S. 21-t. ferent, " enough to make a man for- (/«) Dunstan f. Patterson, 2 Ph. 341 ; swear ever having to do with law," Anon., 2 ^lol. 505. tlicy agreed to refer it to Sei-jcant May- (») Cooper V. Cartwright, Job. ti79. nard. (Diar}-, 29 June, 1(U>3.) (o) If Pepys may be trusted, it wa.s (jj~) As to the circumstances under nueertalTi in his time whether either by which it will be presumed that the legal law or practice the representative of the estate in mortgaged property has l)eca mortgagee in reconveying was bound reconveyed, or a mortgage term surren- to warrant against the acts of his tes- dered before the passing of the Satisfied 1006 RECONVEYANCE OF ESTATE. 1818. In the case of a mortgage of copyholds, if after the admittance of the surrenderee, the surrenderor perform the condition, he may re-enter and shall have the land without any new admittance, or any new fine ; for he is in of his old estate. But. if the day of payment of the money by the sur- renderor be past, so that he has only an equity of redemption, he must pay a fine and be readmitted (§'). Whether the money be paid or not at the proper time, if the surrenderee have not been admitted, it is considered suflft- cient in practice to enter satisfaction on the rolls (r) (24). 1819. A court of law cannot order a reconveyance, or the surrender of a mortgage term, and therefore will not (under the Common Law Procedure Act, 1854, s. 85) admit an equit- able replication which cannot be dealt with completely, unless such an order can be made {s). 1820. The statute 6 & 7 Will. 4, c. 32, s. 5, concerning building societies, makes a receipt for monies advanced by the society, indorsed upon any mortgage or further charge by the trustees of the society for the time being, sufficient to vacate the mortgage or further charge, and to revest the estate in the person entitled to the equity of redemption, without the necessity for any reconveyance ; the form of the receipt being specified in a schedule, directed to be annexed to the rules of the society {t). In like manner, the Merchant Shipping Act, 1854 (u), de- clares, that where any registered mortgage has been dis- charged, the registrar shall, on the production of the mortgage deed, with a receipt for the mortgage money indorsed thereon, duly signed and attested, make an entry in the register book to the eflfect that such mortgage has been discharged ; and, upon such entry being made, the estate, if any, which passed to the mortgagee, shall vest in the same person or persons in Terms Act, see Sugd. V. & P. cd. 11, (s) Gorely v. Gorely, 1 H. & N. pp. 527, 528 ; Dav. Conv. Pre. vol. 2, 144. 618, n., ed. 2. (t) For foiins of decrees for redemp- (^) Gilb. Ten. 276 ; see Simonds v. tion by incmJ)crs of building societies, Lawnds, Cro. ¥Ah. 239. see Seton, 481, 482, ed. 3. (r) 1 Scriv. 194, ed. 4 ; 129, ed. 5 ; {u) 17 & 18 Vict. c. 104, sect. 68. 2 Dav. Conv. 587, ed. 2. RIGHT TO COLLATEUAL, SECURITIES. 1007 whom the same would, hamng reijard to Intcrvcniitf) acts and circumstances, if any, have vested, if no such mort<5age had ever been made. And so upon tlie indorsement on a certificate of mort- gage (90), of the discharge of a mortgage made under such certificate, the mortgagee's estate becomes vested in the per- son or pei'sons in whom it would, having regard to intervening acts and circumstances (if any), liave vested, if no such mort- gage had been made {x). If therefore the first of two mortgages be paid off, and a receipt be given for the money, and duly registered under the Shipping Act, it seems clear that the first mortgagee's interest Avould vest, by virtue of the receipt, in the second mortgagee, as the person in whom it would have vested by an intervening act, (viz. the second mortgage,) if the first mortgage had not been made. The language of the Building Societies Act is less precise, but the second mortgagee is clearly the person entitled to the equity of redemption, for, upon reconveyance in an ordinary case by the first mortgagee, the mortgagor becomes a trustee for the second mortgagee ; and it has accordingly been deter- mined that a new mortgage made to a third person after the discharge of the building society will not pass the legal es- tate, which devolves upon the second mortgagee (y). Of the Right to Policies of Insurance effected as Collateral Securities. 1821. If the grantee of an annuity, by way of security, or other mortgagee, choose to insure the life of his grantor, or an ordinary creditor the life of his debtor, paying the pre- miums out of his own pocket, the policy belongs to the grantee or creditor, the insurance being a contract between other per- sons, and with Avhich the debtor has no concern. He cannot call upon the creditor to keep the policy in force, and the re- {x) Sect. 80(7). ( y) Prosser v. Rice, 28 Beav. 68 j Pease v. .Jackson, W, N. 1867, 257. 1008 RIGHT TO POLICIES OF INSURANCE ceipt of the insurance money by the latter is not a discharge of the debt (r). But if, upon the insurance by the creditor it be agreed, or can be inferred, that the debtor shall be charged with the pre- miums, and that the policy is effected as a security or indem- nity, the policy or the balance of the insurance money, after discharo-e of the debt, will be the debtor's, and it will be im- material in such a case that the premiums were not actually paid by the debtor, if he have been - charged with them in account by the creditor, and have not disputed his liability to pay them (a) ; and as the mere non-payment by the mort- gagor of a charge attributable to the mortgaged property, cannot have the effect of foreclosure, the payment by the mortgagee of the premiums, on the mortgagor's refusal, will not divest the right of the latter to the policy, after payment by him of the advances with interest (5). 1822. The circumstance that an allowance for insurance was included in the calculation of the consideration will not, however, entitle the debtor to a policy kept up by the cre- ditor, if there were no stipulation by the debtor for an insu- rance ; the matter is then at the option of the creditor, Avho, whether he effects an insurance, or by retaining the money becomes his own insurer, is equally entitled to the benefit of the arrangement (e). In the case of Freme v. Brade, and also in Lea v. Tlin- ton {d), in which the policy having been effected as an indem- nity by the joint act of all parties, was held to belong to the debtor, the creditor became the executor of the debtor ; but (z) Gotlicb V. Cranch, 17 Jur. 704 ; 4 De G., M. & G, 440 ; Williams v. Atkyns, 2 Jo. & Lat. 603 ; Ilumiihrey V. Arabin, LI. & G., t. Plunkett, 318 ; Ex parte Lancaster, 4 De G. & S. 524 ; Aldcrson v. White, 3 Jur., N. S. 1316, reversed on other points ; Bash- ford V. Cann, 33 Beav. 109. (a) Holland v. Smith, Esp. 11 ; Ex parte Lancaster, supra ; Morland v. Isaac, 20 Beav. 389 ; Brown v. Free- man, 4 De G. & S. 444 ; Henson v. Trusts, 1 Gif. 94 ; 5 Jur., N. S. 1153 ; Courtenay v. Wright, 6 Jur., N. S. 1283 ; 2 Gif. 337 ; Lea v. Hinton, 19 Beav. 324 ; 5 De G., M. & G. 823 ; exijlained in Freme v. Brade, 2 De G. & J. 582. (/>) Drysdale v. Piggott, 8 De G., M. & G. 54G ; 2 Jur., N. S. 1078 ; 22 Beav. 238. (c) Freme v. Brade, 2 De G. & J. 582 ; 4 Jur., N. S. 746. (d) 19 Beav. 324 ; 5 De G., M. & Blackwell, 4 Hare, 434 ; In re Storie's G. 823, explained in Freme v. Brade. EFFECTED AS COLLATERAL SECURITIES. 1009 it does not appear that in the one case the creditor's rio-ht to the policy was lessened by this circumstance, or that in the other the debtor's right was founded upon it. And it is evi- dent that the fiduciary relation between the creditor and the debtor's estate, only arose after the date of the security, viz., at the time of the debtor's death : whereas, if by the terms of the security itself, the creditor be placed in the position of a trustee, as if the security be assigned to him upon trust after payment of costs to retain the debt, and pay over the surplus, he must account for the insurance money after deducting the premiums; being within the principle which forbids dealings by a trustee with the trust estate for his own benefit {e). 1823. It has also been held (/) that a mortgagor of poli- cies of insurance, or the vendor of a reversionary interest, who has assigned policies to the purchaser, which the mort- gagee or assignee has kept on foot at his own expense, has no claim upon them, or the produce of such of them as have been sold, when the security or sale has been set aside ; on the ground that the contract under which they were kept up having been declared void, no obligation arose out of it be- tween the parties, and the result was the same as if the mort- gagee had kept up the policies for his own pleasure. 1824. If an annuity be granted for lives, which arc in- sured by the grantee, the insurance money received by him on the dropping of one of the lives will not be applied either in payment of arrears of the annuity, or in part redemption ; but may be held by the grantee, at least until complete re- demption, as compensation for the loss to his security from the dropping of the life (</). 1825. An agreement may be expressed or inferred, under (e) Ex parte Andrews, re Einmett, an interest derived from the mortgagor. 2 Rose, 410. An Irish case was dis- (Bell v. Aheame, 12 Ir. Eq. R. 576.) tinguishcd from this, not only on (/) Penncll r. Millar, 23 Beav. 172; account of the absence of an express Foster r. Roberts, 2',) Bcav. 4G7 ; 7 trust, but also because in Ireland the Jur., N. S. 400 ; Bromley r. Smith, 2G insurer need not be interested in the Beav. 644 ; 5 Jur., N. S. 833. subject-matter of the insurance, and ( g) Milliken v. Kidd, 2 Con. & L. therefore could not, as in Ex parte An- 442. drews, have insured only by \-irtue of 1010 RIGHT TO POLICIES OF INSURANCE ■which the debtor shall take the benefit of the insurance. Thus an agreement (/O, that if redemption shall take place, after the premivmis shall have been paid for the current year, the mortgagor shall repay the mortgagee such proportion of that premium as shall belong to the then unexpired part of the current year, has been held to be sufficient evidence of an intention, that the policy should be assigned with the principal security, upon redemption ; even without regard to subse- quent words importing yet more clearly a right in the mort- gagor, to require an assignment of the policy. But the passing of letters between the parties, which refer to the necessity for the insurance, or a provision in the principal security for pay- ment by the debtor of the additional premiums, which in certain events might become payable upon the policy ; or a covenant by the cestui que vie of the annuity, to do the neces- sary acts for the effecting of the insurance, are not sufficient {i) to give the mortgagor or grantor of the annuity a title to the policy; for these are only statements of, or references to the terms, upon which the transaction was effected, and afford no evidence of a contract, which will take the case out of the general rule. Xor does it affect the question, that the policy recites that the insurer has an interest in the life of the insured, which in- terest, by the redemption of the security, has since ceased (A). It seems that letters which have passed between the parties may be looked at, in order to ascertain whether there were any contract concerning the right to the policy, where there is no discrepancy between the letters and the security (/) ; though it w(juld be otherwise if the effect of the letters would vary the stipulations of the security (vi). 1 826. If there be an actual contract that the policy shall be assigned to the grantor, on redemption of the security, if he shall elect to take it, then, although the grantee may be (A) Williams v. Atkyns, 2 Jo. & don Life Assurance Company, 18 Jur. Lat. 603. 1024. (i) Gotlieb V. Cranch, 17 Jur. 686 ; {I) Gotlieb v. Cranch, 17 Jur. 686, on app., id. 704 ; 4 De G., M. & G. 704. 440. {m) See Squire v. Campbell, 1 Myl. {h) See also Dalby v. India and Lon- & C. 459. EFFECTED AS COLLATERAL SECURITIES. 1011 under no obligation to keep up the policy even after the grantor has elected to take it, he has clearly no right after such election to dispose of it for his own benefit. And it was considered, that he could not do so even before election ; for the notice of election does not change the rights of the parties, being only part of the transaction of repurchase (/«). 1827. A\ here an assignment of a life policy made as a collateral security on a mortgage of realty, was followed by trusts for the application of the monies to be received under the policy, on the construction of which the court refused to decree a sale of the policy (in a suit for foreclosure of the real estate) as inconsistent with the trusts, the mortgagee was suffered (<?) to retain the policy, that he might apply the fruits of it upon the mortgagor's death, in making good any defi- ciency in the value of the real estate. 1828. If a lessee mortgage his interest, the benefit of a fire insurance, efl'ected in the names of himself and the lessor, passes by, though it be not mentioned in the mortgage ; and the mortgagor will be ordered to sign a joint receipt with the lessor to the office for the money. Neither has the mortgagor any equity to be repaid, out of the produce of the policy, money expended by him about the rebuilding of the pro- perty, the expenditure being voluntary (^) (1607). Of Decrees for Sale. 1 829. AVliere the decree is for sale, instead of foreclosure, the direction is, that upon default in payment the premises comprised in the security be sold, and the produce applied in discharge of the security. If the estate be sold by consent of all parties, and the purchase-money in court be properly in- vested, the investment is not made at the risk of the mort- gagee, though it may happen to have been made on his appli- cation instead of that of the j)urchaser ; being still treated by the court as a creditor, and his interest running on, he will be (n) Hawkins v. "Woodgatc, 7 Beav. (/;) Gaiden v. Ingram, L'3 L. J. (Ch.) 565. 478. (<i) Dyson v. Morris, 1 Hare, 413. 1012 DISPOSITION OF PURCHASE-MONEY. entitled to be repaid any deficiency, caused by the investment, out of the assets in an administration suit, in which he has proved his debt {q). Neither is the investment made for his benefit, so that he cannot claim accumulations arising from the purchase-monies, unless they have been carried to his separate account (r). So where the CroAvn has sold extended lands, the proceeds of which have been paid into court under an order obtained by the jDurchaser, and invested ; the Crown will receive only its principal, interest and costs, and not a share of the accumulations (s). In like manner, if money re- presenting the sum due on a mortgage, be paid into court, and the mortgagee be afterwards paid out of the security, the fund in court is released, and the investment and accumulations belong; to the morto;ao;or. And if the fund have been blended with other monies, there will be an inquiry to ascertain how much of the compound fund has arisen from the investment of the mortgage fund, and of the dividends of the stock pur- chased with it(^). 1830. The statute 15 & 16 Vict. (948) does not authorize the Court of Chancery to direct the sale of a mortgaged es- tate upon an interlocutory application (u), or it seems after the making of the usual foreclosure decree (x), though it has been considered to be within the discretion of the court to make such an order with the consent of the first mortgagee (?/); and perhaps this view may be supported by analogy to the practice of the court in opening foreclosures, and thereby varying decrees upon motion contrary to its usual course (1797). 1831. If the sale be directed at the request of the mort- gagor, or other person to whom the statute gives the right of demanding it, without the consent of the mortgagee, or those claiming under him, the deposit required by the statute is (q) Tompsctt ?>. "Wickcns, 2 Jur., (//) Wayn v. Lewis, 1 Dr. 487 ; 22 N. S. 10 ; 3 Sm. & G. 171. L. J. (Ch.) 10.51. (?•) Irby V. Irby, 22 Beav. 217. (a;) Girdlestone v. Lavender, 9 Hare, (s) The King v. De la Motte, 2 H. & liii ; 16 Jixr. 1081. N. 589; and see 25 Geo. 3, c. 35. (y) Laslett v. Cliffe, 2 Sm. & G. ( t) Taylor v. Waters, 1 Myl. & Cr. 278. 267. FORM OF ORDER FOR SALE. 1013 indispensable, -wliatever may be the value of tlie estate ; be- cause (?) the mortgagee is not to run any risk of losing his rights, upon any speculation as to the value. The amount of the deposit (Avhich Avill be fixed in the judges' chambers, if the parties do not agree,) is in the dis- cretion of the court, and appears to have been generally fixed with reference to the probable expenses («) of the sale; though in a case(Z») in which a sale was ordered after decree for fore- closure, a sufficient amount was paid in, to indemnify a puisne mortgagee who had bought in several incumbrances, to the extent of his entire advances. 1832. AVhere the sale is directed under circumstances which require a deposit to be made, the order Avill be to sell, in case the deposit be paid within a short tmie — as a week — from the date of the certificate of the amount proper to be deposited ; or, it is presumed, from the date of the decree if the parties agree at once upon the amount ; but in case of default in making the deposit during the same period, or in case no sale shall take place within six months from the date of the certificate then foreclosure (c). The deposit is made for the indemnity of the mortgagee, and if the attempt to sell be abortive, it will be applied in discharge of his costs of the sale {(1). 1833. The conduct of the sale will be given in preference to the person by whom it may be most conveniently eiFected ; and Avhere the plaintiff was a second mortgagee, it was there- fore given to the first on account of his possession of the deeds {e). 1 834. The period of six months is the time allowed by the court, in cases of sale not under the act, as also in foreclosure decrees (1783), during which the estate may be redeemed (/); (;:) Bellamy r. Cockle, IS Juv. 4(',.") ; (<•) Bellamy t>. Cockle, supra, see Boydell c. Maiiby, 9 Have, liii ; {d) Corsellis ». Patmau, L. R., 4 Eq. Burmester v. ^loxon, 35 Beav. 310. 156. (a) Bellamy v. Cockle, 18 Jur. 465 ; (e) Hewitt »'. Nanson, 28 L. J. (Cli.) Whitfield V. Roberts, 5 Jur., N. S. 628. N. S. 49. (J) Laslett V. Cliffe, 2 Sra. & G. (/) Lloyd r. Whittey, 17 Jur. 7:.4. 278. 1014 FORM OF ORDER FOR SALE. under the act the court may order a sale, without giving the usual or any time to redeem. But three months has been taken as a convenient limit adversely to the mortgagor (p). Where an order was made for sale on the mortgagee's appli- cation (A), giving but one month to redeem, the time was sup- posed (i) to have been fixed because a speedy sale was desi- rable for all parties, and a like period has been given in another case (j) where the mortgagee applied for sale. But in the absence of the owners of the equity of redemption, at the hearing, although they appeared in the suit, the court de- clined {k) to use its full power by directing an immediate sale. And where a judgment creditor applied in a foreclosure suit for a sale, the court refused to act at all upon the statute in the defendant's absence!^/); though it does not appear, whether he was only absent at the hearing, or had not ap- peared at all to the claim. The court has exercised its power of ordering sale without time to redeem as against infant defendants, upon the ground of local and temporary circumstances, which were shown to affect the marketable value of the property (wi). Where the security consisted of real and personal property, the decree ordered payment into court of the proceeds of the sale, distinguishing the proceeds of the realty from that of the personalty (n). 1835. Where a sale is decreed by the Court of Admiralty, leave will be given to the mortgagee to bid as a purchaser (o); and the Court of Chancery will give the like permission upon motion (p), when it orders a sale, unless the applicant have the conduct of the sale ; in Avhich case if he desire to bid, it seems that the course is to appoint some other person to con- duct the sale {q). AVhere an estate was bought by a person, (^) New-man v. Selfe, 10 Jur., N. S. (I) Jones v. Bailey, 17 Beav. 582. 2r,l. (wt) Mears v. Best, 10 Ilare, li. (h) Staines v. Rudlin, 9 Hare, iiii, («) Cator v. Reeves, 16 Jur. 1004, marg. ; IG Jur. 90.5. and form there ; 9 Hare, Iiii, marg. (i) See Lloyd v. Whittey, supra. (o) Wilsons, 1 W. Rob. 173. (j) Smith V. Robinson, 1 Sni. & (p) Ex parte Marsh, 1 Mad. 148. Qif 140. (q) Domville v. Berrington, 2 Y. & / M Id. C. 723 ; and held, on appeal in bank- WHEN MORTGAGEE MAY BITY. 1015 liavin"" the conduct (»f tlie sale "without leave, and in a f'eifned name, it was ordered to be resold, and a much greater pjrice being realized than was paid by the purchaser, he was ordered to pay the costs (r). 1836. In bankru])tcy (978), any mortgagee, Avith the leave of" the court first obtained (s), (which may be given by the registrar in chambers (0? and if separately applied for must be obtained at the mortgagee's expense (m),) may bid at a sale of the mortgaged property ; and though he has no right to bid without previous leave, yet under peculiar circumstances, where he has done so, leave has been granted nunc pro tunc ; as where he bought without any previous intention to do so, and only to prevent a sale at an under value {v). He has also been allowed to take a conveyance as purchaser, after a sale to another person, at the price for which the estate was pur- chased by the latter, on an affidavit of no collusion, and that the object was to save the costs of another sale (x). 1837. If an imauthorized purchase be not immediately confirmed, it seems that the proper course is not to set it aside, but to resell and hold the first purchaser to his bargain, unless a better price can be obtained (y). And if the mortgagee, having purchased under his own power of sale, afterwards come to the court for a sale, the estate will be put up at the price at which he bought (z). 1838. Where the mortgagee is a successful bidder he will rni)tcy, that, notwitlistamling the delay (r) Sidnc}- v. Ranger, 12 Sim. 118. of the persons having tlic eonduct of (s) Banl^ruptcy Act, 18G1 (24 & 25 the sale, the conduct should not be Vict.), c. 134, s. 132. See Ex parte given to the mortgagee, who had leave Hammond, Buck, 4G4. to bid. (Ex parte M'Gregor, 4 De G. & (O Gen. Ord. under Act of 18G1. S. 603.) In Ireland leave to bid has («) Ex parte Robinson, M. & M. been given to the mortgagee without 2C1 ; Ex parte Blakeley, 2 M. & A. 54. taking from him the carriage of the (y) Ex parte Tedder, 3 D. & C. 622; decree, where the property was clearly sec Ex parte Yorke, 3 De G., M. & G. insufficient to pay the debt ; especially 329. if there were no bona fide bidder on a (x) Ex parte Prevost, 3 L. J., N. S previous sale. (Straight v. Patterson ; Bkcy. 79. Bower r. Allen, 9 Ir. E4. R. 149 and (y) Ex parte Ashley, 3 D. & C.olO. note i Steel v. Devonport, 11 id. 339.) (z) Ex parte Francis, 1 D. & C. 274. 1016 PURCHASE BY PERSONS INTERESTED. not be exempted from paying the deposit (a); and the con- duct of the sale -will be Avith the assignees, even in the case of a leo;al mort^ao-e, and though the mortgagee waive his right to bid (Z»). He cannot, therefore, have leave to bid unless he will abandon his right to sell under his power (c). If the mortgagee be also the creditors' assignee, the official assignee (consenting) may be ordered to conduct the sale, with liberty for the mortgagee to become the purchaser at a price fixed if np bidding be made to that amount {d). And in some cases, where the mortgagee has also been the assignee, a solicitor has been named to attend the taking of the accounts, and to conduct the sale on behalf of the creditors at the cost of the estate {e). A separate solicitor has also been appointed for the purposes of the sale, when the mortgagee was solicitor to the fiat {f)', and where the same solicitor was concerned both for the assignees and the mortgagee (^). 1 839. Neither the solicitor to the assignees, except as mort- gagee, nor the assignees themselves by reason of their fidu- ciary position, can generally be purchasers of the mortgaged property, and a purchaser who falls Avithin this disability will be held to be a trustee for the creditors {h) ; or a resale will be ordered, at the price which was to have been paid by the purchaser, another solicitor being appointed to conduct it, and the original purchaser being held to his bargain if no better price be obtained (i). And a like order has been made where the assignee bought by mistake {k). {a) Ex parte Tatham, 1 M. & A. 335 ; 4 D. & C. 3G0 ; Ex parte Ste- phens, 2 M. & A. 31 ; Anon., 4 L. J., N. S. Bkcy. 4. {h) Ex parte Hodgson, 1 Gl. & J. 12 ; Ex parte Smith, 2 D. & C. GO ; Ex parte Cuddon, 3 M., D. & De G. 302. (c) Ex parte Davies, 3 D. & C. 504 ; Bee Ex parte Coninicrcial Bank, 'J L. T., N. S. 782. {d) Ex parte Young, Dc G. 14G ; Ex parte Ilolyman, 8 Jur. 15G. Ex parte Lees, 2 D. & C. 360 ; see lu re Salisburj^, Buck, 245. (/) Ex parte Briggs, 3 M. & A. 505 ; 3 Dea. 238. {rj) Ex parte Rolfe, 1 D. & C. 77 ; Mont. 515 ; and see Ex parte Bromage, De G. 375. ( h) Ex parte Badcock, Mont. & M. 231 ; see Ex parte Bennett, 10 Ves. 380. (i) Ex parte Farley, 3 D. & C. 1 10; Ex parte Turvill, 3 D. & C. 346. {k) Ex parte Cuddon, 3 M.,D, & De (e) Ex parte Cowdry, 2 Gl. & J, 272 ; G. 302. EQUITIES BOUND BY DECREE FOn SALE. 1017 The same disability applies to the receiver; though under cer- tain circumstances, or by consent, he may have leave to bid (/), Under extraordinary circumstances, however, an assignee may have leave to bid, as where no bidder had appeared at a pre- vious sale by auction ; but it must be with the consent of all the creditors who have proved, a part of them only being unable to bind the rest ; and the assignee's solicitor will not liave the conduct of the sale (jn). 1 840. The assignees are also generally not allowed to have a reserved bidding, on the sale of mortgaged property (71). But it was allowed where the value of the equity of redemp- tion greatly exceeded the mortgage debt, on the undertaking of the assignees to pay the mortgagee his princii)al, interest and costs (0). 1841. By analogy to the mortgagee's ordinary right to exercise his poAvcr of sale, unless he be paid or tendered the sum due on his security, he may insist upon the execution of the order for sale (p). And the court will not postpone it, on the assignee's request, for such a purpose as putting the es- tate into a course of cultivation with the purpose of increasing its selling value. If the assignees improperly delay the sale of the property, the course of the mortgagee is to prosecute the order for sale which has already been made, and not to apply for a new order (q). 184S. The rights of equitable incumbrancers on the estate, whether they be plaintiffs or defendants, or only come in under the decree, are bound by the decree for sale, in the same manner as the equity of redemption is bound by a fore- closure decree. The purchaser, therefore, upon obta*ining a conveyance of the legal estate, takes the property discharged of all claims, and is not entitled to any release from the equit- able incumbrancers (r). (0 Audcrson v. Andcrsou, 9 Ir. Ta[. D. & C. 2'Jl. K. 23. (0) Ex parte Ellis, 3 D. & C. 297. (to) Ex parte Hodgson, 1 Gl. & J. 00 Ex parte Belcher, 2 D. & C. 587. 12 ; Ex parte IVrdrland, ISroiit. & ^f. (q) Ex parte Kobinson, 3 D. & C. 76 ; Ex pai-tc Beaumout, 1 M, & A. 103. 350. (»•) Keatinge v. Kcatingc, 6 Ir. Eq. (») In re Skinner, 1 M. & A. 81 ; 3 R. 43 ; Webber r. Jones, id. 112. M. VOL. II. 3 U 1018 WHETHER INFANTS AEE ENTITLED 1843. If the mortgagee becomes the purchaser, and his principal and interest exceed the pnrchase-money, he may be let into possession as from a date earlier than that fixed by the contract (s). Of Decrees and Orders against Infants and Trustees. 1 844. Infants may be foreclosed, or a sale may be directed against them ; but it Avas formerly the practice in decrees for these and for many other purposes^ to give the infant six months after coming of age, to show cause against the de- cree (0; which indulgence to infants Avas at first thought (^^) to have been abolished in all cases by the provision of the act of 11 Geo. 4 & 1 Will. 4, c. 47, s. 10, that in any action or proceeding for the payment of debts, or any other purposes, against any infant under the age of twenty-one years, the parol should not demur ; that is, the infancy should not be set up as a bar to the suit during minority. But it was after- wards held {y)y that no such effect resulted from this section of the act ; because the right of the parol to demur put a stop to any proceeding against the infant : and was therefore alto- gether different in its nature from the right to show cause, which did not prevent a decree from being made against the infant binding upon him, if no cause Avere shoAvn within the allotted time. The right to a day to show cause Avas therefore held to remain unaffected in suits in Avhich a conveyance Avas required from the infant, as in suits for the foreclosure of equitable mortgages (r^). 1845. But it seems that the right has been taken away, or affected, by subsequent statutes. The Trustee Act, 1850, gives (.r) a general power to courts of equity, Avhen any decree shall be made for the conveyance (s) Batcst'. Bonnor, 7 Sim. 427. ()') Scholeficlil v. Ilcafield, 7 Sim. (0 :\rallack V. Galton, .3 P. Wms. CG9 ; but sec 8 id. 470 ; Price t;. Carver, .•3.52; Bishop of Winchester v. Beavor, ?, Jilyl. & Cr. 157. .*} Vcs. jun. .314; Spencer v. Boyes, 4 (w) Scholefield f. Ileafield ; Price r. Ves. 370 ; Booth v. Rich, 1 Vcrn. 29.> ; Can'er, suj^ra. Bennett i;. Edwards, 2 Vcrn. 3!t2. (.r) 13 & 14 Vict.c. CO, s. 30. ((/) Powys r, Mansfield, G Sim. 637. TO A DAY TO SHEW CAUSE. lOlD or assignment of any lands, to declare that any of the parties to the suit are trustees within the meaning of the act, and to make such order as to the estate^, rights and interests of .such persons as arc authorized bv the act to be made concerning the estates, rights and interests of trustees. And the courts may make orders (y), vesting the estates, or releasing or dis- posing of the contingent rights of infant trustees, in such persons, and manner, as the court shall direct ; which orders are to be as effectual as if the infant trustees had attained twenty-one, and had duly conveyed or assigned the lands in the same manner, and for the same estate, or had released or disposed of the contingent right. 1846. For the better understanding tlie effect of this statute, upon the foreclosure of equitable mortgages, it is necessary to refer to the different manner in which the decree affects these and legal securities ; namely, that whilst a con- veyance is required to complete the title by foreclosure of an equitable mortgagee, that of the legal mortgagee requires no such formality : because the legal title 'is already vested in him, and the equitable right of the mortgagor is completely bound by the decree. And the day to show cause was given to the infant in respect of the conveyance Avhich he Avas re- quired to make, and not in respect of the equitable right Avhich the decree had already bound. Therefore Lord liard- wicke said (c), it was the course of the court not to give a day, unless a conveyance was directed either in form or sub- stance. The case of Price v. Carver (a), cited above, in which it was held before the Trustee Act, that the day should still be given, appears to be a decision as to equitable mort- gages only. Lord Cottenham there observed, that " cases of foreclosure and partition, and all others in which a convey- ance is required from an heir, except those in which the parol would demur at law, are cases in Avhicli a day is given." And again, " in all other cases" (i. e. except cases of sale for payment of debts), " in Avhich a conveyance is required from an infant, the law remains as before, and the practice there- (//) ir> & 14 Vict. c. r.O, ss. 7, 8. West, t. llardwickc, 082. (:) Shcffiekl r. Duohess of Bucks, (a) 3Myl. & Cr. l.">7— IfiO, ;5 i: 2 1020 WHETHER INFANTS ARE ENTITLED fore remaius the same." Now, in cases of partition, Lord Redesdale expressly says {b), that the day to show cause is given, where the infancy of any of the parties, or other cir- cumstances, prevent mutual conveyances ; the decree being then to make partition, give possession, and order^ enjoyment, until effectual conveyances can be made. As therefore Lord Cottenham could not have referred to those cases of partition in which the legal estate is outstanding, and not in the infant (for then the conveyance could be made at once), it is plain, that he was also not speaking of foreclosure suits, where no conveyance of the legal estate was required, but of suits (such as that before him) relating to equitable^ mortgages, where it was necessary to wait for a conveyance, until the coming of age of the infant heir or devisee. There seems, therefore, to be no reason for giving the day to show cause where the se- curity is legal. And this view appears to have been adopted by Lord St. Leonards in foreclosure suits in Ireland, in which, according to the practice there, sales having been directed, it was held, that the infant^ should have no day (c). And in a suit in England by mortgagees, to establish their claim a2:ainst a settlement, it was said that the infant should have a day, if the result of a case at law made it necessary for the infant to execute a conveyance, but not otherwise (</). But the Trustee Act, 1850, puts the infant heir or devisee of the right of redemption of an equitable mortgage in the same position in this respect, as if the mortgage were legal ; for it enables the court to make the conveyance, and thereby to complete the mortgagee's title Avithout waiting for the infant's majority. His whole right, both legal and equitable, can now be bound by the decree and order of the court, and the right to the day to show cause should cease, with the reason upon which it was founded. It is not very clear what view has been taken by the courts (7y) Plcarling, 120, cd. 4 ; 143, c<l. 5, Tilson v. Lawder, 2 D. & War. 285; citing A.-G. r. Hamilton, 1 Mad. 214 ; Mahon v. Dawson, id. 280, n. sec the fonn, 2 Eq. Dr. 38D. (d) Walsh v. Trcvannion, IG Sim. (c) Clinton v. Bemai-d, Dru. 287 ; G 180 ; and see Re Williams' estate, 5 De Jr. Eq. R. 355 ; Ilutton v. Mayne, 3 Jo. G. & S. 515. & Lat. 580 ; 'J Ir. Eq. R. 343 ; and see TO A DAY TO SHEW CAUSE. 1021 upon tins subject. Lord Cranwortli, V.-C, is reported to have observed, in a foreclosure suit (c), that the Trustee Act, 1850, did not alter the right of the infant, in respect of the day to show cause. In a partition suit (/), Knight Bruce, V.-C, said, that instead of giving the day to show cause, the court would declare that, after the making of the partition, the infant would be a trustee, within the act, of such parts of the property as should be allotted in severalty to the other parties. But as in practice the order absolute for foreclosure is made as of course, no application is made for such a declar- ation, and the practice of giving a day to show cause is still followed {{/). 1 847. With respect to sales of mortgaged estates, made in suits for payment of debts, the same statute (A) Avhich abo- lished parol demurrer, enacted, that where in any suit, in any court of equity, for payment of the debts of any person or persons deceased, to Avhich their heir or heirs, devisee or de- visees, may be subject or liable, such court of equity shall decree the estates liable to such debts, or any of them, to be sold for satisfaction of such debt or debts, and by reason of the Infancy of any such heir or heirs, devisee or devisees, an im- mediate conveyance thereof could not, as the law then stood, be compelled ; in every such case, such court shall direct, and if necessary compel, such infant or infants to convey such estates to be sold, by all proper assurances in the law, to the purchaser or purchasers thereof, in such manner as the said court shall think proper and direct: and that every such infant shall make such conveyance accordingly, and every such conveyance shall be as valid and effectual, to all intents and purposes, as if such infant or infants is or are, at the time of executing the same, of the full age of twenty-one years. By a later act (i), courts of equity are also authorized to direct mortgages as well as sales to be made, of the estates of such (e) Ncwbiuy v. Marten, 15 Jur. 2; 577, cd. 3. 16G. (r/) Sec Set. C80, C(l. 3. (/) Bowa V. Wright, 4 Dc G. & S. (//) 11 Geo. i & 1 Will. 4, c. 47, 2G5 ; 15 Jur. 981; sec however Ilan- s. 12. cock f. Hancock, Scton, Dec. 337, cd. (/) 2 & 3 Vict. c. CO, s. 1. 1022 WHETHER INF.VNTS AKE ENTITLED infant heirs and devisees ; and also to be made in cases where the tenant for life or first executory devisee of the estate is an infant. And by a yet later act {j), the provisions of 11 Geo. 4 & 1 Will. 4, c. 47, Avere further extended, to any case, in which any lands, tenements or hereditaments, of any deceased person, shall by descent, or otherAvise than by devise, be vested in the heir or co-heirs of such persons, subject to an executory devise over, in favour of a person or persons not existing, or not ascertained ; and in any such case, courts of equity are authorized to direct such heir or co-heirs, notwith- standing infancy, to convey or otherwise assure the fee simple or other interest to be sold to the purchaser, or as the court shall think proper, and every such conveyance shall be as effectual as if the heir or co-heirs executing the same were seised or possessed of the fee simple or other estate to be sold, and if an infant were of full age. By the effect of these statutes it is clear that the infant has no longer a day to show cause in the cases which fall within their provisions (A). 1848. The Trustee Act, 1850, directs (/), that when a decree shall have been made by any court of equity, directing the sale of any lands for the payment of the debts of a de- ceased person, every person seised or possessed of such lands, or entitled to a contingent right therein, as heir, or under the v.ill of such deceased debtor, shall be deemed to be so seised, possessed or entitled upon a trust within the meaning of the act. And the court may discharge the contingent right, under the Avill of such deceased debtor, of any unborn person. And the Trustee Act of 1852, directs (m), that when any decree or order shall have been made by any court of equity, directing the sale of any lands, for any purpose whatever, every person seised or possessed of such land or entitled to a contingent right therein, and bound by the decree or order, shall be deemed to be seised, jiossessed or entitled within the Act of 1850; and the court may, if it think fit, make a vesting order of such lands, -which shall be as effectual as a proper ij) 11 & 12 Vict. c. 87, s, I. (/; 13 & M Vict. c.CO, s. 29. (A) See 3 Myl. & Cr. 1G3. (w) \:, & IG Vict. c. o5, s. 1. TO A DAY TO SHEW CAUSE. 1023 assurance made by a person free from disability. In all suits, therefore, in which a sale may be had, and consequently where a sale is made in a foreclosure suit, the court may at once make that conveyance, for which it was formerly necessary to wait until the infant obtained his full age. And if the view taken above, as to the failure of the reason for giving a day to show cause against a foreclosure decree of an equitable mortgage, be correct, it should follow that, where a sale is directed in a foreclosure suit, the power of the court to com- plete the sale against the infant is a good reason for taking away the right to show cause in that case also. 1 849. The efi'ect of giving the day to show cause in fore- closure suits, was not to enable the infant to ravel into the account, nor even to give him a new right of redemption, but only to show error in the decree (n). Though in creditors' and other suits, not for foreclosure, it seems the infant was allowed to put in a new answer on coming of age (o). 1860. The decree declared (7^), that the infants should stand absolutely debarred and foreclosed, &c., unless they, upon being served with a subpoena to show cause against the decree, should within six months after they should respectively attain the age of twenty-one years, shoAV unto the court good cause to the contrary. But where there was a defective security, with a covenant for further assurance binding the infant heir, it was ordered (q), that upon default, the mort- gagees Avere to be let into possession of the mortgaged pre- mises, and to hold and enjoy the same as against the defendant, until he should attain the age of twenty-one years ; and upon his attaining that age, the defendant was to surrender the mort- gaged premises to the plaintiffs, upon the trusts of the in- denture, unless, upon being served, Sec, the defendant should show good cause to the contrary. And the like order upon the infant, to convey or surrender, upon attaining twenty-one, (n) Jlallack v. Galton, 3 P. Wms. 504 ; Kelsall v. Kelsall, 2 Myl. & K. 3o2 ; Bishop of "Winchester r. Bcavor, 412. 3 Vcs. 314 ; "Williamson v. Gordon, 19 (j}) Seton, 341, cd. 2. id. 11 4. (17) Spencer r. Boycs, 4 "Ves. 370. (0) Fountaiuc r. Cuinc, 1 P. Wms. 1024 VESTING OKDEES OF ESTATES of course also preceded tlie order for a day to show cause, ■where an equitable mortgage was foreclosed (1878). 1851. It is not the practice to direct a sale against an infant, until the court be satisfied that it is for his benefit. The course is to direct an inquiry (r) upon this point, unless it be settled by proper evidence at the hearing (.v). The same rule prevails as to orders for sale, under 15 & 16 Vict. c. 86, s. 42 ; and the court accepts the affidavit of the trustees, as mfficient evidence that a sale will be beneficial (f). 1852. By the Trustee Act, 1850, the Lord Chancellor (and now also the Lords Justices, as persons intrusted with the care of the persons and estates of lunatics) may make vesting orders of lands, or contingent rights in lands, of which any lunatic or person of unsound mind shall be seised or possessed upon any trust, or by way of mortgage. And also to make an order vesting in any person the right to transfer or receive the dividends of stock, or to sue for and recover any chose in action to which any lunatic or person of unsound mind is solely entitled, upon trust or by way of mortgage ; and where the lunatic is entitled jointly with any other person or persons, to vest such rights either in the person or persons so jointly entitled, or in such person or persons jointly with any other person or persons (m). And where any infant shall be seised or possessed of any land, or contingent right in land, upon any trust or by Avay of mortgage, the Court of Chancery may make a vesting order of such lands or rights ; and such vesting orders shall respec- tively vest the lands or rights in such person or persons, in such manner, and for such estate as the court shall direct (v). Under this power, where it was desired to vest the estate in the mortgagee's executors, one of whom was a married woman, so as to enable them to reconvey without an acknoAvledgment by her under the Fines and Recoveries Act, the estate was (r) Davis v. Dow(ling,2 Keen, 247 ; Mcars v. Best, 10 Hare, li. Monday v. Monday, 1 Vcs. & B. 223. (t) SilTkcn v. Davis, Kay, xxl. (s) Sdiolcfield r. Ilcafield, 7 Sim. (?/) Sects. 3, 4, 5, 20, 27. 669 ; Davis v. Dowding, 2 Keen, 247 ; (v) Sects. 7, 8. OF LUNATICS, INFANTS AND OTHERS. 1025 vested to such uses as the executors should appoint, and, in default, to the use of them in fee, subject to the equity of redemption (^x). And when any person, to whom any lands have been con- veyed by way of mortgage, shall have died without having entered into the possession or receipt of the rents and profits thereof, and the money due in respect of such mortgage shall have been paid to a person entitled to receive the same, or such last-mentioned person shall consent to an order for the reconveijance of such lands, the Court of Chancery may make a like vesting order (?/); 1. When an heir or devisee (2) of such mortgagee shall be out of the jurisdiction of the Court of Chancery, or cannot be found. 2. Whenever an heir or devisee of such mortgagee shall, upon a demand by a person entitled to require a conveyance of such lands, or a duly authorized agent of such last-men- tioned person, have stated in writing that he will not convey the same, or shall not convey the same for the space of twenty- eight days next after a proi)er deed for conveying such lands shall have been tendered to him by a person entitled as afore- said, or a duly authorized agent of such last-mcutioned person. 3. When it shall be uncertain which of several devisees of such mortgagee was the survivor. 4. When it shall be uncertain as to the survivor of several devisees of such mortgagee, or as to the heir of such mort- oanee, whether he be living or dead. 5. When such mortgagee shall have died intestate as to such lands, and without an heir, or shall have died, and it shall not be known who is his heir or devisee. The order of the court in any one of these cases has the same effect as if the heir or devisee, or surviving devisee, as the case may be, had duly executed a conveijancc or assigu- (.r) h\ re rowcll, 4 K. & J. 338. estate, cither by a direct gift of the ( y) Sect. 19. estate itself, or as implied by a gift of (z) As to the ^Yords which will the debt or security, see Jarui. Wills, amount to a devise of a mortgaged Ch. LM. 1026 VESTING ORDERS OF ESTATES ment of the lauds, in the same manner, and for the same estate (1859). 1853. "Where the estate was in an heir at law out of the jurisdiction, though the court could not make an order under sect. 19, because the mortgagee had entered into possession, a vesting order was made under sect. 9, Avhich enables the court to vest lands of which any person solely seised or possessed upon any trust shall be out of the jurisdiction, or cannot be found («). 1864. In every case in which the persons intrusted with the care of the persons and estates of lunatics, or the Court of Chancery, are enabled to make a vesting order affecting lands or contingent rights, the said persons or court may, if it shall be deemed more convenient, appoint a person to convey or assign such lands, or to release or dispose of such contin- gent rights {b). 1855. As to lands within the Duchy of Lancaster, or the counties palatine of Lancaster or Durham, the court of the Duchy Chamber of Lancaster, or the Courts of Chancery of the counties palatine respectively, may make like orders as to lands within their respective jurisdictions, as the High Court of Chancery may make, by virtue of the act. But no person within the limits of the jurisdiction of the High Court of Chancery shall be deemed by such local courts to be a trustee within the act (c). The powers given to the Court of Chancery and the persons entrusted Avith the custody of lunatics respectively, extend to all lands and personal estate in the Queen's dominions and colonies, except (as to the powers of the court) Scotland ; and except (as to the lunacy jurisdiction) Scotland and Ireland ; and may respectively be exercised by the Court of Chancery and persons intrusted with the custody of lunatics in Ire- land, with respect to all lauds and personal estate in that country (</). - - 1856. "When any vestiug order is made over copyhold or (a) In re Skitter, 4 W. R. 701, sec (h) Sect. 20. sect. 10, as to persons jointly seised or ('•) Sect. 21. possessed upon any trust. (d) Sects. 51 — o7. OF LUXATICS, INFANTS AND OTIIKUS. 1027 customary laud, -with the consent of the lord or lady of the manor, the land -will vest without surrender or admittance ; and when any person is appointed to convey or assign copy- hold or customary land, such person may do all acts, and execute all instruments for completing the assurance of such lands ; and such acts and instruments shall have the same effect, and, subject to the customs of the manor, and the usual payments, shall give the same rights to admission, as if the person in whose place the appointment is made, being free from disability, had duly done and executed such acts and instruments (e). 1867. "With respect to the clauses which concern the estates of lunatics and persons of unsound mind, it may be noticed, that under the repealed act of 1 Will. 4, c. 60, the second section of which enabled the Lord Chancellor to di- rect the committee of a lunatic to convey, although by the fifth section any person might be appointed to convey on the part of a person of unsound mind not found so by inquisition, the appointment of the ad interim committee of a person of the latter class, was refused ; and the petition Avas directed to stand over until the appointment of a committee (/). The court has also refused {(/) to go into the question, whether the lunatic was a trustee within the act of 1850. 1858. The word " lands" in the statute of 1850 applies to any estate or interest in land {li), and therefore applies to the right of an infant tenant in tail; as does also the act of 1 "Will. 4, c. 47, s. 11, which enables the Court of Chancery, in suits for the sale of real estates for the payment of debts, to order in- fants to convey such estates (z) (2022). "Where the legal estate is vested in the mortgagee by the security, and the equity has been devised, no vesting order of the infant devisee's interest will be made to the purchaser of the estate ; because the infant's equitable interest is bound by the decree for sale {k). (e) Sect. 28. (0 Radeliffe v. Eccles, 1 Keen. 130. (/) Kc Poultoii, 1 Mac. & G. 100. (/^ He Williams' Estate, J De G. & (fl) Re Kanishay, Ij Jur. t'.l>. S. 515. (//) Sect. 'J. ] 028 VESTING ORDERS OF ESTATES The estate of the mortgagee, outstandmg in his infant heir, may be vested in, the devisees of the equity of redemption, subject to a legacy with Avhich it lias been charged by the testator (Z). 1859. The nineteenth section has been held (m) to autho- rize an order to vest the mortgaged estate, as to which the morto-ao'ee has died intestate, and where his heir cannot be found, in the executor of the mortgagee ; on the ground that " conveyance," and not merely " reconveyance," appears by the concluding words of the section to have been contemplated by the act, a liberal interpretation of which required this con- struction. The decision clearly rests upon convenience ; but it seems to be little in accordance with the familiar rule of construction, which requires, that no Avords be rejected, upon which a meaning can be put, consistent Avith the rest of the enactment. Now the clause expressly requires, that the money due in respect of the mortgage shall have been jjaid to a person entitled to receive the same ; and this is consistent with a "reconveyance," but not with a conveyance by the heir to the executor, where no money passes, and where, con- sequently, the words relating to the payment become a dead letter. And upon the ground that in such a case the mort- gage debt was not paid, and that a "reconveyance" was not sought. Turner, V.-C. had refused (ji), before the order above cited was made by the Court of Appeal, to make a vesting order under the nineteenth section ; and he pointed out that it mio-ht be a reason for the limitation to the case of recon- veyance, that so long as the money remains unpaid there may be equities between the heir and the personal representatives of the morto-ag-ee, with which it would not be convenient that the court, upon such a proceeding, should interfere. 1860. AVhcre the customary fee of copyholds was surren- (J) Re Ellerthorpc, 18 Jur. CCO. transfer. (In re Hewitt, 27 L. J. (Ch.) (m) Ec Boden's Estate, IG Jur. 279 ; N. S. 302.) But such an order was 1 Dc G., M. & G. 57 ; 9 Hare, 820. made, In re Towcll, 4 K. & J. 338 ; The Court of Appeal declined to vest In re Skitter, 4 W. II. 791. the estate in the administrator, though {n) Re Meyrick's Estate, 9 Ilarc, he was beneficially interested, where IIG ; 15 Jur. 505. there was no present intention to sell or UNDER TnE TRUSTEE ACTS. 1029 dered by a debtor to his creditor (o), upon trust to sell and pay the debts out of the proceeds, and to pay the surplus to the debtor, his executors, administrators and assigns, and more than twenty years after the personal representative of the creditor sold the property for much less than the amount of the debt, the debtor and his customary heir having both in the meantime died intestate, and there being no personal representatives, and the title of the present customary heir not to be proved without great expense ; the copyholds were vested in the purchaser without service of notice, either on the customary lieir, or the personal representative of the debtor. It was argued in this case, that if any service were necessary, it should be on the personal, and not on the real representative. But note, that if under a potver of sale in a mortgage an estate be sold after the death of the mortEragor, it will be real estate, notwithstanding the direction to pay to the executors or administrators ; because the equity of redemption has descended : but, if the sale be in the life- time of the mortgagor, the personal representative will be entitled {p). 1861. A lessee who has mortgaged by Avay of underlease, with a power of sale, and has covenanted to assign the residue of the term as the purchaser shall direct, is not (y) however a trustee, for a purchaser of the underlease, under the power ; the covenant to assign does not make him a trustee ; and though an assignment might be compelled by suit, the court will not make an order under the Trustee Act, which would amount to a decree for specific performance, in the absence of the person who should be the defendant in a suit for that kind of relief. But if the mortgagor covenant in the meantime to hold the outstanding estate upon trust for the mortgagee, there is an express trust within the act (?•). 1862. A vesting order has been made of the beneficial in- terest of infants, and possible unborn children, in land decreed (o) Ee Wise, 5 Dc G. & S. 415. {q) Re rropcrt, 22 L. J. (Cli.) 04,'^. {]}) Wright I'. Rose, 2 yini. & St. (?•) Re CoUingwood, 6 W. R. 536; 323. and see 2 David's Couv. 589, cd. 2. 1030 DECREES AGAIXST MARRIED WOMEX. to be sold for payment of debts, and other purposes (s), under the combined provisions of the act of 1852, s. 1, and of ss. 16 and 30 of the act of 1850; -which provide respectively for the release and discharge of the contingent rights of unborn per- sons, and for declarations concerning the rights of parties to the suit, or the interests of unborn persons Avho might claim under any party to the suit. But under the act of 1850 alone, a vesting order against infants beneficially entitled to real estate, on a certain contin- gency, Avas refused (t). Orders under the Trustee Acts concerning lands, stock or choses in action subject to a mortgage, may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the monies secured by such mortgage (m). Of Decrees against Married Women. 1863. If a bill be brought against a feme coverte owner of the equity of redemption, and her husband, to foreclose, she is liable (though during the coverture) to be absolutely fore- closed ; and no day shall be given to her or her heirs to redeem after the determination of coverture {x). But the decree must be made against married Avomen in the usual form, and an immediate order absolute cannot be made even by consent (?/). Of the Delivery of the Title Deeds. 1864. It is the duty of the mortgagee Avho has accepted the mortgagor's notice of discharge, to see that the deeds are forthcoming, and that the mortgagor may be enabled Avithout risk to pay the money, and to take his reconveyance on the day fixed (c). Both the decree in equity and the order at («) Wake V. Wake, 17 Jnr. 54.'. (y) Harrison v. Kennedy, 10 Hare, {t) Weston V. Filer, 16 Jur. lOIO. li. {u) Act of 18.j0, s. ?,1. (z) Lord Middlcton v. Eliot, la Sim. (a;) Mallack v. Galton, .", P. Wms. 531. 352. DELIVEllY OF TITLE DEEDS. 1031 common law staying proceedings on redemption (628) provide for the delivery of the deeds to the redeeming party ; and he is entitled to demand them, although by the act of the mort- gagee in disposing by a single instrument of the estate, and the debt, other persons have acquired an interest in a title deed of the estate (a). This right extends to all assignments and reconveyances executed between the original mortgage and the final redemption (b). And where several mortgages upon distinct estates have been transferred by a single deed, one of the mortgagors Avho comes to redeem singly is entitled to have the deed of transfer delivered to him, upon his cove- nanting to produce it (c) (1733). Where the mortgagee re- conveys only part of the estate, and is entitled to retain the deeds by virtue of his absolute title to the greatest part of the property, he ought also to covenant with the redeeming party for production {d). 1865. It is usual for the mortgagee to be prepared with an affidavit of the documents to be delivered up in case of redemption ; and the mortgagor may require the affidavit at his own expense, but he should give previous notice to the morto;a2;ee of his intention, and in case of his neglect to do so, and of the non-production of the affidavit, a new day must be fixed for payment {c). 1 866. In case of foreclosure, it has been said (/) that the common decree does not direct delivery of the deeds by the mortgagor, especially where the mortgage is for a term, which, however great may be the length of the term, gives the ter- mor no riiiht to the title deeds of the estate : and that the order for delivery is only made where there is a special con- tract to deliver the deeds upon default of payment of principal and interest. It is, however, submitted that the true reason for omitting the direction in the case of a mortgage in fee is, that the (rt) Dobson r. Liuui, 4 Dc G. & S. {d ) Yates v. Plumbe, 2 Sm. & Gif. 575, 581. ITi. (J) Hudson V. Malcolm, 10 W. JR. (c) Weeks r. Stourton, llJiir., X. S. 720. 278. (e) Capper r. Tenin^ton. 1 Coll. (/) Wiscinjin r. Wcstland, 1 Y. & 103. J. 117. 1 032 EFFECT OF LOSS OF TITLE DEEDS. mortgagee who forecloses, either by direct delivery from the mortgagor upon the making of the security, or from another incimibrancer whom he has redeemed, has the deeds already in his possession ; and a modern decree on an equitable mort- gage shows {g), that where all the deeds are not already in the mortgagee's custody, the decree, after directing the mort- gagor to convey on default of payment, goes on to order delivery of the deeds. A decree of foreclosure may be made at the suit of a first mortgagee without any order against the holder of the deeds for the delivery of them ; as where they are in the hands of a person who has taken them bona fide and without actual or constructive notice of fraud from a person without title (A). 1867. Upon the sale of a ship, under an order of the Court of Admiralty, for the satisfaction of bottomry, or other claims (975), the title is complete without any delivery of the register. And no order will be made for its delivery against the official agent of a foreign government, who alleges that he detains it under the laAv of his own country. But the court will order delivery of the register in the case of a British vessel, because its jjroduction may be necessary at the custom-house (J). Of the Loss of the Title Deeds. 1868. If the title deeds of the estate have been mislaid or lost by, or stolen out of the custody of, the mortgagee, or his agent, the court, either in a redemption or foreclosure suit, will direct an inquiry according to the circumstances, as to what deeds or documents were delivered to the mortfraGfee, and whether they are or not existing, or lost, or in the poAver of the mortgagee to produce, or what has become of them (/t). If the deeds be certified to be lost, or are known to have been destroyed by the mortgagee, an inquiry will be directed ( (j) Ilolmes V. Turner, 7 Hare, (Ji) Smith v. Bickncll, cited 3 Ves. 370, n. & B. 51 ; Stokoe v. Robson, 3 Ves, & ill) Kendall v. Hulls, 11 Jur. 8Gt. B. 51 ; Bentinck-y. Willink, 2 Hare, 1 ; (?) " The Tremout," 1 W. Kob. Luccraft v. Ilitc, cited 2 Hare, 14. 1G3. EFFECT OF LOSS OF TITLE DEEDS. lO.'i.'J as to what indemnity or security ought to be given in respect of the loss (I), and also as to what ought to be allowed as a sufficient compensation for the damage done to the estate by the loss or destruction of the deeds (m); which compensation is given in respect of the expense to arise on future dealings with the estate, in getting office copies of the decree and other proceedings in the suit, which must thenceforth form part of the title ; and not as speculative damages (n) for injury occa- sioned by the absence of the deeds at a sale ; and the amount of the compensation will be set off against the principal and interest due on the security. 1869. The mortgagee will also be directed to deliver upon oath attested copies of such of the documents destroyed, of which attested copies can be made or had. And if it be found or appear that the deeds were stolen, an indemnity will be de- creed (o), but no liability arises for compensation in such a case, whether the deeds Avere in the possession of the mort- sati-ee himself, or of his solicitor or agent, in whose custody he might properly have left them if they had been his own, and no fraud or collusion be shown (p) ; although the circmn- stance that the deeds were lost out of the custody of the soli- citor of the mortgagee, for Avhose convenience they were so deposited, seems in one case (5^) to have been thought a reason (amongst others) for giving compensation. 1 870. And if the result of the inquiry be merely that the deeds are not to be found, it seems that an indemnity only, and no compensation, will be directed, for the party charge- able is then entitled to assume that which is most for his own advantasre, viz., that the deeds were stolen, or are otherwise missing, not by reason of any wrong or negligence on his part (?•). (!) Lord Midleton v. Eliot, 15 Sun. (0) Shelmardinc v. Harrop, 6 Mad. 537. 39 (see form of bond of indemnity iu (;?() Honiby v. Matcham, IG Sim. Stokoe c. Robson, id. p. 41). 325 ; 11' Jur. 825. (JJ) Jones r. Lewis, 2 Ves. sen. 240; (;«) Brown v. Sewell, 1 1 Hare, 49 ; and sec Woodman v. Higgins, 14 Jur. 17 Jur. 708 ; !iml see -Macartney v. 846. Graliam, where the docuiiient lust was (q) Bro\ni i: Sewell, 17 Jur. 70S ; a bill of exchange, and only iudcniuity 11 Hare, 4lt. was given; 2 R. & il. 353. ('■) Smith v. BickncU, cited 3 Ves. M. VOL. II, 3x 1034 INDEMNITY FOR LOSS OF TITLE DEEDS. Where the deeds Avere lost by or stolen from one of several mortgagees, being executors, against the survivors only of whom the suit was brought, without joining the representa- tives of him who was the cause of the loss, no indemnity or compensation was given (5). 1871. Where the mortgagee, suing in right of his wife, an administratrix, was unable to produce the deeds by reason that the wife, who was separated from him, and had possession of the deeds, had delivered them to her attorney, who claimed to hold them adversely, an account was ordered to be taken of the principal, interest and costs ; the amount to be paid into and to remain in the bank, until the deeds could be se- cured and a reconveyance had(f). 1873. The court will give compensation for the loss of deeds if the justice of the case require it, under the prayer for general relief, though indemnity only be sought by the bill(M). Where the value of the mortgaged estate was 20,000/., and the amount of the mortgage debt about 9,300/., the sum of 500/. was proposed and approved of(x) as a proper compensa- tion for the loss of the title deeds and documents (1737). Of the Order absolute for Foreclosure. 1 873. Upon an affidavit of nonpayment of the money at the appointed time and place, or subsequently, to the person to whom it is directed to be paid, or his agent, the order for fore- closure contained in the original decree ( 1 764) will be made absolute by an order of course (1/). And this final order of foreclosure must be obtained, before an account is taken of & B. 51 ; Stokoe v. Eobson, 19 Ves. & B. 51. 385. Sec 17. J ur. 700. In Lord Midle- (t) Schoole v. Sail, 1 Sell. & Lef. ton V. Eliot (supra), there was loss un- 170. explained, but traced to the negligence («) Brown v. Scwell, 17 Jur. 708 ; of the mortgagee's agent : no compcn- 1 1 Ilare, 49. sation was directed or srmght, and there (a-) Honihy v. Matcliam, IG Sim. was a previous correspondence on the 325. footing of indemnity only. ( y) Scton, 393, ed. 3 ; Dan. 897, («) Smith V. Bicknell, cited 3 Ves. cd. 4. ORDER ABSOLUTE FOR FORECLOSI'RE. 1035 subsequent interest and costs, and a time appointed for the exercise of the next right of redemption («). 1874. If the person entitled attends by his agent, the agent ought to be authorized by a power of attorney to re- ceive the money ; and for want of such autliority, the court has refused to make the order absolute, though no person ap- peared to receive the money (i). The order was, however, made when the person entitled also attended during a portion of the time between the hours fixed for payment (c) (1384). 1875. A general order of the Court of Chancery {d) pro- vides that, where a defendant makes default at the hearing of a cause, the decree shall be absolute in the first instance, without giving the defendant a day to show cause ; and shall have the same force and effect as if it had been a decree nisi in the first instance, and had been afterwards made absolute in default of cause shoAvn by the defendant. And it may be here observed, that instead of the former practice, under which, upon the nonappearance of the defendant at the hear- ing, the plaintiff took a decree Avhich he could abide by, the present course is for the court to hear the cause, and to give the plaintiff the decree, to Avhich, upon the pleadings and evi- dence, it judges him to be entitled (e). 1876. Under another order of the court (/), such decree is to be made upon the hearing of a cause in which the bill has been ordered to be taken pro confesso, as to the court seems just, and in the case of any defendant who has appeared at the hearing, and has waived all objection to such order, or against whom the order has been made, after appearance by himself, or his own solicitor, or upon notice served on or after the execution of a writ of attachment against him, the decree is to be absolute. (a) Whitbrcad v. Lyall, 2 Jur., N. S. {c) Haves r. Brvcrly, 3 Drn. & TVar. 671 ; 3 Sm. & G. 314. 274; Ilakewcll v. Webber, 9 Hare, (J) Guruey v. Jaekson, 1 Sm. & G. 541. But in Fiuley r. AckriIl,2.">May, xxvi. ISGl, Stuart, V.-C, said tbat the prac- (r) Lechmerc v. Cbimp, 31 Bcav. tiee is not as stated above, and made 578 ; 9 Jur., N. S. 4S2. sueh a decree as the plaintiff could (rf) 44tb Order, Aug. 1841 ; Cons. abide by. Ord. XXIII. s. 12. . (/) Cinis. Ord. XXII. 5. 8. 3x2 1036 ORDER ABSOLUTE FOR FORECLOSURE. AVliere the bill had been taken pro confesso against a de- fendant, Avho did not appear at the hearing, a decree of fore- closure absolute in the first instance was refused {(j)-, it being considered that the plaintiff was only entitled to such a decree as he would have had if the defendant had appeared at the hearing ; but, it is submitted, that the expression " such a decree as seems just," means a decree according to the merits of the case ; and that in form the decree should be subject to the general orders of the court, and therefore in an absolute form, according to Cons. Ord. XXIII. s. 12, cited above. The court will not dispense with service of the copy, decree and proceedings, directed by Cons. Ord. XXII. s. 8, where a bill has been taken pro confesso, upon the ground of the expense and difficulty of making the service. If the service cannot be, or is not, duly effected, the proper course for the plaintiff (A) is to apply to the court, at the end of three years [i), for an order to make the decree absolute ; and if the court be satisfied with the reasons for non-service it will then dispense with the service. The order to dispense Avith service will not generally be made till the three years have expired {It), but where the defendant was a trustee, living out of the jurisdic- tion, and the cestuis que trust were parties, the dispensation was granted ; the plaintiff, however, expressing that he was willing to wait until the end of the three years before making the order absolute (/). It is no objection to taking a decree pro confesso against a mortgagor, that the bill prays a subpoena against him when he shall come within the jurisdiction (wz). 1 877. The court will add to the decree of foreclosure on an equitable mortgage, a declaration under sect. 30 of the Trustee Act, 1850, that a mortgagor out of the jurisdiction is a trustee for the mortgagee, and will make a prospective {ij) Brierly v. Ward, 1.1 Jiir. 277. Beav. 83; Thurgood v. Cane, 32 Beav. (Ji) Vaughan v. Rogers, 11 Beav. 156. 1G.5. {h) James v. Kice, 5 Dc G., M. & G. (i) Cons. Ord. XXII. s. 15 (Z). As 4G3. to service of and disjiensing with notice (Z) Benbow v. Davies, 12 Beav. under Cons. Ord. s.s. 11, 12 (87th Ord. 421. May, 1845) ; see Trilly v. Kccfe, IG (/«) Flight v. Camac, 13 Sim. 413. DISMISSAL OF BILL FOR REDEAirTION. 1037 order vesting tlic property in the equitable mortgagee («). But it has been said, that such a declaration ouglit not t(j be made as an addition to the common order to make the decree absolute, but should be made on a separate application (o). 1878. The order absolute, so far as it concerns infant defendants, must contain the same declaration, giving the infants a day to show cause upon attaining tAvcnty-one, as the original decree (/>) ; if it be proper to give it there. If it be clearly for the benefit of the infant, as where the security is insufficient, and the plaintiff offers to pay his costs, no day Avill be given (q). 1879. The order for foreclosure does not relate back to the decree for an account, so as to make the mortgage real estate from that time ; it is not until the final order that the quality of personalty is lost (r). 1 880. A release after decree of foreclosure is equivalent to an absolute foreclosure by order {s) (653), Of the Dismissal of the Bill for Redemj^ion. 1881. The bill for redemption will be dismissed, on motion of course upon production of the report, or certificate of the amount due, and of an affidavit of attendance and nonpayment of the money {t) (475) ; even though after the time fixed for payment the mortgagor have tendered the principal and in- terest, with an additional sum for interest, to the day of tender {u). But the special circumstances seem to make it proper in such a case to move upon notice. 1 882. Dismissal of the bill to redeem, by reason of default in payment of the money, or for any other cause than for («) Lcchmcrc v. Clump, .'50 Bear. (-/) BiHson r. Scott, 2 Set. GSG, ed. 218, 3 ; Croxon v. Lever, 10 Jur., N. S. 87. (o) Smith V. Boucher, 1 Sm. & Gif, (»•) Thompson v. Grant, 4 Mad. 72; 16 Jur. 1154. But it is said to 438. have been made in Lcchmere v. Clamp, (*•) Ecynoldson v. Tcrkins, Ambl, 31 Beav. 578 ; though it was also made 5G5. on the original hearing according to (jf) Stuart u. Worrall, 1 Bro. C. C. 30 Beav. 218. 581 ; Proctor ;•. Gates. 2 Atk. 140 ; (^) Williamson v. Gordon, 19 Ves, Marsham v. Gray, 2 Atk. 2S7. 114. (m) Faulkner v. Bolton, 7 Sim. 319. 1038 DISMISSAL OF BILL •want of prosecution, operates as a decree of foreclosure (;r). And in a decree to redeem an annuity, a declaration that in case of dismissal on nonpayment the annuity shall be con- sidered as a morto-age debt, and shall be irredeemable accord- ingly, prevents the grantor from raising in future any question as to the validity of the annuity ; and he will be restrained accordingly from proceeding at law for that purpose ( ?/). 1883, The bill Avill be dismissed at the hearing, if the right to redeem be repelled by the court ; and the dismissal was held upon appeal to be proper where the plaintiff having claimed an absolute right to redeem upon certain terms, the decision was, that he had no equity to redeem upon those terms {£). So in a suit for redemption or foreclosure, by a person who is subject to the same equities as the mortgagor, the bill will be dismissed as against a defendant, who, as between himself and the mortgagor, is not liable to be foreclosed by incum- brancers on the estate, having prior rights to such defendant. Thus, where A. was a mortgagor, B. and C. incumbrancers, and X. tenant in tail in remainder, whose estate, as between himself and A. was not liable to the incumbrances of B. and C, having been exonerated therefrom by A.'s covenant ; a bill by E., a subsequent judgment creditor of A., was dis- missed against X, {a), because E. was not in the position of a purchaser for valuable consideration without notice, but was subject to the same equities as A., and could not compel X. to pay off B. and C. (1363). And the same principle applies where the suit is by the assignee of the insolvent mortgagor and covenantor (Z»). The bill for redemption will also be dismissed, if, at the {x) Cholmlcy v. Oxford, 2 Atk. (z) Scagravc v. Pope, 16 Jur. 1103 ; 2G7 ; Bishop of Winchester v. Taine, 1 De G., M. & G. «03, n. 11 Ves. 199; Hansard /;. Hardy, 18 (a) Hughes v. Williams, 3 Mac. & Ves. 460 ; Inman v. Wearing, 3 Dc G. G. 683. But, semUe, that X. should & S. 734. See Woodi). Surr, 19 Bcav. first have had a permissive right to 5.")1. redeem. See ChappcU r. Rees, infi-a. (y) Plight V. Chambre, 1-1 Jur. (*) Chai)pell t?. Rees, 1 Dc G., M. & 123. G. 393. AGAINST DISCLAIMING DEFENDANTS. 1039 hearing, the plaintiff' refuse to ask for any accounts (c); \vl»ich may happen when the plaintiff", being a puisne incumbrancer, finds that the security is altogether insufficient. 1884. It is the practice to dismiss the bill, as against de- fendants who disclaim all interest in the mortgaged premises, where such defendants are able to make and do make a com- plete and valid disclaimer; and provided the disclaimer be complete, it seems to be equally good, whether it were made before or after the filing of the bill ; the usual course being in fact to file an answer and disclaimer {d). But if the disclaimer be insufficient in form, or ineffective by reason of the disability of the disclaiming party, the decree will be for foreclosure (1749). The first defect arises where the pleadings admit that the estate is vested in the party, and contain an entire or partial disclaimer only of any interest therein ; as Avhere («) the pro- visional assignee of an insolvent submits that the estate and effects of the insolvent are vested in him as such provisional assignee, but claims no interest therein, save such as may be vested in him as trustee for the creditors, whose rights he leaves to the care of the court. And a disclaimer by a husband, entitled in right of his wife and by the wife, seems to have been considered to be imper- fect, by reason of the disability of the parties to disclaim by such means ; for where an estate in remainder was vested by devise in a son and daughter, the former was dismissed, but not the latter and her husband ; though they all claimed to be dismissed by virtue of a joint answer and disclaimer (/). (c) Gibson v. Nicoll, 9 Bcav. 403 ; trustee against whom the bill was dis- lOJur. 419. missed merely stated by his answer, (rf) Alihvortli /•. Kobinson, Reg. Lib. and it appeared, that he had never 1839, fo. 874 ; Thompson v. Kendall, 9 acted, and had formally renoimccd the Sim. 397 ; Silcock v. Roj-non, 2 Y. & trust by deed. C. C. C. 37C ; Loek v. Loma-s, in Jiu-. {e) Appleby v. Duke, 1 Hare, 303; 162 ; semhle, also in Ford v. Eiu-1 of Collins v. Shirley, 1 Russ. & M. G3S ; Chesterfield, 10 Beav. 516 ; Vale v. 9 Sim. 399, cited from Reg. Lib. Mcrideth, 18 Jur. 992 ; Thomeycroft (/) Silcock v. Roynon, 2 Y. & C. C. E. Crockett, 2 II. of L. C. 239, where, C. 376. so far as appears by the report, a 1040 DISMISSAL OF BILL But, in another case {(j), the bill was dismissed against an equitable devisee of an estate, and her husband, upon their answer and absolute disclaimer. And it seems that such a disclaimer is good. The Statute of Fines and Recoveries (s. 7) provides for disclaimers by married women, but that provision appears to have been intended to remove a doubt as to their power of disclaiming by deed. Now, it was held (A), where there was a mortgage by husband and wife, without a fine, of lands purchased to the use of them and their heirs, that the wife was bound, after the husband's death, by their joint answer to a bill to foreclose ; the answer being held equal to a fine ; and so it is conceived the wife's right would be equally bound by their joint disclaimer. A decision has also been reported in a case {i), in which the morto;ao;ed estate having; been devised to a trustee in fee, pending the suit, a bill of revivor and supplement was filed against the trustee, the cestui que trust, and the heir of the testator ; and the two latter disclaimed, admitting the will and the jDlaintiff's title ; yet upon argument they were foreclosed. The case of Collins v. Shirley, cited above, was mentioned as an authority, but the real ground of the decision there seems to have been the imperfect form of the disclaimer ; and the case oi Ahlett v. Edwards (k), the particulars of which do not appear, was also cited. The grounds of the decision in the principal case are difficult to understand, though foreclosure was said to be material to the title. If the disclaimer be complete, foreclosure, which implies the presence of an in- terest to be affected, seems to be something more than useless ; and it is not easy to see what interest could have here remained in the cestui que trust after disclaimer, upon which the fore- closure could operate. The case of the heir at law is not more clear, unless, by a refinement of reasoning, the efiect of the disclaimer by the cestui que trust was thought to leave her interest to descend to the heir, unaffected by his own dis- {()) Buchanan v. Grccnway, 11 IVcrn. 4],n. Beav. 58. (/) Perkin v. Stafford, 10 Sim. 562. (h) Anon., Mos. 248 ; S. C, cited (/.;) Noticed, 10 Sim. 563, n. AGAINST DISCLAIMING DEFENDANTS. 1041 cliiimer. This case seems, however, to have been subse- quently considei'Ctl as an authority for the foreclosure of disclaiming defendants in a suit in which all the defendants disclaimed (/). In another case (m) it was arranged, that, upon the consent of the assignee of an insolvent to be at once foreclosed absolutely, he should receive his costs. It is pos- sible that foreclosure was required here, Avith reference to the statute 1 & 2 Vict. c. 110, s. 68, which provided, that where only a provisional assignee should have been appointed, con- veyances of the insolvent's interests, which were of no value to the creditors, might be made by order of the court. il) Johnson v. Clarke, 3 W. R. (m) Staffurth v. Pott, 2 De G. & S. 193. 571. APPENDIX. Decrees : 1885. Thachivray v. Bell. 1897. J^M V. Cartivright. 1902. Ii'>ll V. Edmo7ids. 1911. Soher v. Kemp. 1915. Tliifffu'S V. Wi/litrms. 1926. C/aippell V. i.'tY's. 1931. Al(l>vo7-th V. liohinsoii. 1939. Barnes v. liaester. Of various Statutes relating to Securities : 1949. Benefices Plurality Act. 1959. Charitable Trusts Acts. 1960. Commissioners Clauses Act, 1847. 1975. Companies Acts. 1991. Copyhold Enfranchisement Acts. 2021. County Courts Equitable Jurisdiction Act. 2022. Bcbts ; Mortgages of Infants^ Estates for Payment of. 2023. Improvement Acts. 2053. Iiiclosure Acts. 2060. •Judgment Acts. Discharge of Crown Debts. 2062. Lands Clauses Consolidation Act, 18-15. 2073. Land Tax Redemption Acts. 2078. Municipal Corporation Acts. 2081. Public Works and Fisheries Acts. 2082. Bailway Companies Securities Act, 1866. 2094. 'Turnpike Acts. 2113. ^^ t'st India Incumbered Estates Acts. 2120. Of Stamps upon Securities. 1044 APPENDIX. DECREES. 1885. DECKEE for Successive Redemptions. THACKWKAYz;. BELL, 1 Feb. 1840. T. T. and M. T. (third mortgagees), .... W. B. (assignee of first mortgagee), J. S. C. and Jane his wife (owners of equity of redemption), S. L. and E. his wife, and M. C. (personal representatives of second mortgagee), and J. M. (his customary heir), Plaintiffs. Defendants. September, 1817. — J. H. mortgages copyholds to J. B. to secure 200Z. and interest. December, 1818. — Further charge to same to secure lOOZ. and in- terest, and J. B. duly admitted. May, 1820. — J. H. surrenders to Jane B., subject to J. B.'s mort- gage, and she admitted. March, 1821. — Jane B. mortgages equity of redemption to T. M., and he admitted. April, 1823. — Jane B. marries J. S. C. June, 1823. — J. B.'s mortgages transferred to W. W., who enters into possession of part of the premises. January, 1825. — J. S. C, and Jane his wife, mortgage part of the estate to T. T. and M. T. the plaintiffs. ■ . — W. W. dies, and his representatives surrender to W. B., defendant. . — T. M. dies, leaving defendants S. L. and E. his wife, and M. C, his personal and J. M. his real repre- sentatives. 1886. Account of first DECREE. — Account of what is due to the defendant W. B. for mortgagee's debt principal and interest, in respect of the said several mortgage sur- renders of September, 1817, and December, 1818, and for costs pro- perly incurred in respect thereof, and tax him his costs of the suit. Account of the rents and profits of the mortgaged premises re- ceived by the said defendant W. B., or by the said W. W, (or his personal representatives), under whom tlie defendant W. B. claims, or by any other person or persons by his or their order, or for his or their use, or which, without his or their wilful neglect or default, Of rents, &c. re- ceived by lirst mortgagee in pes session, TIIACKWRAY V. BELL. 104o iiii"ht liavc been received. Let \\\\\xi shall Lie owing on sucli last to be deducted mentioned account of rents and profits be deducted from what shall be found due to the defendant W. B. for principal, interest, and costs as aforesaid. 1887. And upon the defendants S. L. and E. his wife, and M. C. (a), Liberty to pcr- paying to the defendant W. B. the balance which shall be remaining \\^e% of^ecomi'* due to him for such principal, interest and costs as aforesaid, after ireem'''orpayinciit such deduction as aforesaid, within six months after the certificate of of balance: the chief clerk of the judge to whose court this cause is attached shall liave been duly signed and approved, at such time and place as shall be appointed by the said certificate. Let the defendant W. B. surrender and re-assign the mortgaged And thereupon , c , <• 1 ""-' *'''*' niort- premises comprised in the said mortgage surrenders of, &c., iree and gagee to convey clear of and from all incumbrances done by him or any claiming ° ""'■ under him, or those under whom he claims, and deliver upon oath all deeds, papers and writings in his custody or power relating thereto, to the said S. L. and E. his wife, and M. C, or as they shall appoint. 1888. But in default of the said defendants S. L. and E. his wife, and in default, fore- M. C, paying to the said W, B. such balance as aforesaid, by the time aforesaid. Let them stand absolutely debarred and foreclosed of and from all right, title, interest and equity of redemption of, in and to the said mortgaged premises. And in case of such foreclosure, 1889. Compute for the defendant W. B. his subsequent interest on his in sucii case, . . 1 • 1 /■ 1 • 1 • compute and tax said mortgages, and tax him his subsequent costs ot the said suit, lirst niortt,'ai.'ee'H And upon the plaintiffs T. T. and M. T. paying to the defendant ^e?t'and costs?" W. B. what shall be certified to be due to him for principal, interest and liberty to ' . • 1 • third mortga^'ees and costs as aforesaid, after such deduction as aforesaid, within three to redeem, &c. months after the further certificate, c^c, at such time and place, &c., L^'t the defendant \V. B. surrender and re-assign the said mortgaged premises comprised in, &c., free and clear, &c., and deliver upon oath, &:c., to the said T. T. and M. T., or as they shall appoint. But in default of the said T. T. and M. T. paving to the defendant In default, fore- . , . . closure. W. B. what shall be found due to him as aforesaid, by the time afore- said. Let them stand absolutely debarred and foreclosed, &c. (1888)- And in case of such foreclosure, 1890. Compute the defendant W. B. subsequent interest on his said mort- In such ca>e, , , • 1 • 1 r 1 • 1 • 1 1 compute and tax gages, and tax liim Ins subsequent costs or tlie said suit, and upon tlie urst mortsafice's said J. S. C, and Jane his wife, paying to the defendant W. B. what re?tT.uu"oVts!'''' should be reported due to him for princiiial, interest and costs as and owners of ' . . equity of rcdemp- aforesaid, within three months after the further certificate, fcc, at such tion to redeem, &c. (a) The original liere erroneously gives a right to redeem to tlie cus- tomary heir also. 1040 APPENDIX. In default, fore- closure. 1891. In case of re- demption by re- presentatives of second mortga- gee, Account of their debt, and of what they shall have paid to first niort- pagee, and tax their costs. 1892. And liberty for third mortgagees to redeem them. In default, fore- closure. 1893. Tiien compute and tax second mortgagee's re- presentatives' subsequent inte- rest and costs. And owners of e juity of redemp- tion to redeem them, &c. I n default, fore- closure. 1894. In case of re- d ;mpti!jn by third mortgagees. Account of their debt, and of what they shall have p iid to second mortgagee's re- presentatives, and tax their costs of suit and at law. time and place, &c., Let the defendant W, B. surrender and re-assign, &c. (1887j, and deliver, &c., to the said J. S. C, and Jane his wife, or as they shall appoint. But in default of the said J. S. C, and Jane his wife, paying to the defendant W. B. what sliall be found due, &c. (1888). But in case the said S. L. and E. his wife, and M. C, should redeem the said AV. B. as aforesaid, by the time aforesaid, Let an account be taken of what is due to the said S. L. and E. his wife, and M. C, as the executors of T. M. deceased, in the plead- ings named, for principal and interest in the mortgage security of the 1st day of March, 18'21, made by Jane B. in the pleadings named to the said T. M., and for what the said S. L. and E. his wife, and M.C., shall so pay to the said W. B. for principal, interest and costs as aforesaid, and for interest thereon, and also to tax the said S. L. and E. his wife, and M. C, their costs of the said suit. And upon the said T. T. and M. T. paying unto the said S. L. and E. his wife, and M. C, what shall be found due to them for such principal, interest and costs as aforesaid, within three months after, &c.. Let the said S. L. and E. his wife, and M. C, surrender and re- assign tlie said mortgaged premises comprised in the said surrenders of, &c. (1887). But in default of the said T. T, and M. T. paying, &c. (1888). And in case of such foreclosure, Compute the said S. L. and E. his wife, and M, C, their subse- quent interest on their said mortgage, and on what they should have paid to the said W. B., and tax them their subsequent costs of this suit. And upon the said J. S. C, and Jane his wife, paying to the said S. L. and E. his wife, and M. C, what should be found due to them for principal, interest and costs as aforesaid, within three months, &c., after the further certificate, &c., Let the said S. L. and E. his wife, and M. C, surrender and re-assign, &c. (1887). But in default of the said J. S. C, and Jane his wife, paying to the said S. L. and E. his wife, and M. C, what shall be found due to them, &c. (1888j. But in case the said T. T, and M. T. shall redeem the said S. L. and E. his wife, and M. C. as aforesaid, Let an account be taken of what was due to the said T. T. and M. T. for principal and interest on their mortgage security dated January, 1825, in the pleadings mentioned, and for what the said T. T. and M. T. shall so pay to the said S. L. and E. his wife, and M. C, for principal, interest and costs as aforesaid, and for interest thereon, and also to tax the said T. T. and M. T. their costs of the said suit, and at law, And 1895 And account'of Take an account of the rents and profits of the said mortgaged BELL V. CARTWRICnX. 1017 premises received by tlie said T. T. and M. T., or either of tliem, or rents, kc re- ' , ,1- -1 p ■L ■ 1 ^ , ■ ceived by them. by any other persons by tiieir or either ot their order, or lor tlieir or either of their use, or which, without their wilful neglect or default, mitrht have been received. » ^72^ let what shall be owing on such account of rents and profits And deduct rents be deducted from what shall be found due to the said T. T. and M. T. debt, for such principal, interest and costs as aforesaid. 1896. And upon the said J. S. C, and Jane his wife, raving to the said And recitinption 1 /. 1 • • by owners of T. T. and M. T. what shall be found due to them for such principal, equity of red.-mp- interest and costs as aforesaid, after such deductions as aforesaid, of°baiancel!&c" within three months after the further certificate, &c. (1887)- But in default of the said last-named J. S. ('., and Jane his wife, in default, fore- ' closure, paying to the said T. T. and M. T. what shall be remaining due to them for such principal, interest and costs as aforesaid, by the time aforesaid, the said J. S. C, and Jane his wife, are from thenceforth, &c. (1888). Usual directions. Liberty to apply. DECREE carrying on Proceedings informer Suit, and directing further Accounts and Redem])tion. SUPPLEMENTAL SUIT TO TIIACKWRAY V. BELL. BELL V. CARTWRIGHT. AVilliam Bell, Plaintifl'. 1897. John Simpson Cartwright and Elizabeth Baines, . . Defendants. Margaret Thackwray, one of the former plaintifl^s and third mort- gagees, died ; and her executor and co-mortgagee assigned to Bell, the now plain titi^. Jane Cartwright, late defendant and owner of the equity of redemp- tion, also died, having devised her equity, as to three-fifths thereof, to defendant J. S. Cartwright, her husband, and, as to two-fifths, to defendant Elizabeth Baines. Defendants S. Learoyd and wife, Calvert and Mann, representatives of the second mortgagee, also assigned to Bell, who therefore acquired the interests of all the incumbrancers. Supplemental Decree, 20 Feb. 1854. « QQft Enter decree and proceedings in the other suit, and evidence in this Enter procetd- inps and evi- SUlt. dence. 'Let the decree made in the original cause, TJiachwray v. Bell and Carr)- on proceed- , ,. . , 1 1 1 1 . I i- I-. 1 incs in fonuer others, in the proceedings mentioned, and dated tlie 1st day ot reb- su,;. ruary, 1840, and the proceedings thereunder, so far as is now neces- sary, be carried on and prosecuted as between the plaintiffs and the 1048 APPENDIX. 1899. Accounts. Particulars of se- curities. Amount due to plaintiff as first niortgajjee and assignee of in- cumbrances on footing of former decree. 1900. Tax plaintiff's costs of this and former suit, and of other parties to former suit. And certify amount due on accounts. 1901. On payment by tenants in com- mon of equity of redemption, Plaintiff to re- convey to de- fendants. In default, fore- close defendants. defendants in this suit, in like manner as is thereby directed between the parties to the said suit in which such decree was made. Ajid let the following inquiry and accounts be made and taken in this cause, viz. : — 1st. An inquiry of what particulars the property comprised in the several mortgages in the pleadings mentioned consist. •2ndly. An account of what is due to the plaintiff by virtue of his mortgage security in the decree in lliachicray v. Bell mentioned, and also as assignee of the several mortgage securities, therein also men- tioned, of S. L. and E. his wife, M. C. and J. M., the defendants in the former suit, and of T. T. and M, T., the plaintiffs in the said former suit, such account of what is due to the plaintiff to be taken on the footing of the decree in the said former suit. And let the proper taxing master of this court tax the plaintiff the costs of this suit, and also his costs as defendant in the said former suit, and also the costs of the said former suit of the plaintiff and the defendants to that suit, S. L. and E. his wife, M. C. and J. M., and of the plaintiffs to the said former suit, T. T. and M. T. And let the total amount due to the plaintiff, on taking the accounts aforesaid, and for all the costs hereinbefore directed to be taxed, be certified. And on the defendants J. S. C. and E. B., or either of them, paying to the plaintiffs such total amount, within six months after the certi- ficate of the chief clerk of the judge to whose court this cause is at- tached shall have been duly signed and approved, at such time and place as shall be by the said certificate appointed, Let the plaintiff re-convey the premises comprised in the said several mortgage securities, free and clear, &c., and deliver over on oath all deeds, &c. (1887), to the defendants, or as they shall direct. But in default of the defendants, or either of them, paying such total amount to the plaintiff, within the time aforesaid, the defendants are tlienceforth to stand absolutely debarred and foreclosed, &c. (1888)- Just allowances. Liberty to apply. Illl.r, r. EDMONDS. 1049 DECREE J'ur liedanption hij and Foreclosure of Sub- sequent Incumhranccrs and Assif/nees of the Insol- vent ]\Iortff(i(/or of Distinct Estates, ujjon one of which the Insolvcnfs IVife has a separate liifjht of Redemption. HILL V. EDMONDS, 18.32. lieg. Lib. A. \%:A,fn. 1380. Sarah Hill, William Clarke, John Hurst Wane . . Plaiutitfi. 1902. Charles Edmonds, James Painton, Thomas Hall, Samuel Sturgis, Joseph Bullock, and Anne his wile. . . Defendants. Januar)', 1849. — Distinct mortgages by Bullock and Anne his wife to Hill of wife's freeholds to secure ICO/., and of her leaseholds to secure 300/., the deeds of the freeholds being also deposited as security for the latter. November, 1849. — Second mortgage of whole premises to Edmonds, Painton and Hall. Hill devises to Clarke and Wane, and appoints them and Sarah Hill (the plaintiffs) executors. November, 1849. — Bullock becomes insolvent, and Hall is ajipointed to be his creditors', and Sturgis his provisional, assignee. 1903. DncREE. — Account of what is due to the jjlaintifTs for principal and Account of what interest in respect of the debt of 100/., and interest secured by the securlues. ° deed of January, 1849 ; and of what is due for principal and interest in respect of the debt of 300/., secured by the other indenture of January, 1840, and the agreement of that date. Tax the plaintilf's costs of tliis suit and apportion such costs be- Tax and appor- ... tion costs, dis- tween the debts of 100/. and 300/. respectively ; distmguish the amount tinguishing the due for principal, interest and costs, in respect of the debts of 100/. such^recurfty," and 300/. respectively, and certify the total amount due in respect of ^"'^ certify total, the said securities. 1904. Upon payment by the defendants Edmonds, Painton and Hall, some second incuni- or one of them, of the total amount due, within six months, &c., Let tjrancers tore- ' '_ _ ' ' deem on payment the plaintiffs assign the mortgaged premises free from incumbrances, of total, or be &c., and deliver deeds, &c., to the defendants, or such of them as shall redeem (1887). Jn default of the said defendants, or some or one of them, redeem- ing, foreclose them (1888). And in that ease, 1905. Compute subsequent interest in respect of both sums, and tax the Account of sui.- ' '■ ' ' sequent interest plaintiffs their subsequent costs, and apportion such subsequent costs and costs, and M. VOL. II. 3 Y 1050 APPENDIX. apportion aiid distinguish, ut supra. 1906. Assignees of hus- band (mortgagor) to redeem on pay- ment of total, or be foreclosed. 1907. Account of sub- sequent interest and subsequent costs on 300/. se- curity. Wife of mort- gagor to redeem on payment of amount found due tliereon, in default to be foreclosed. 1908. In case of re- demption by se- cond incum- brancers, Subsequent accounts and re- demption by as- signees of mortga- gor upon payment of amount found due to second in- cumbrancers, and of what they shall have paid, and subsequent inte- rest and costs. In default, fore- closure. 1909. Subsequent ac- counts in respect of the 3001. secu- rity : (ut supra), and distinguish what is due to the plaintiffs for principal, interest and costs, including such subsequent interest and subsequent costs in respect of the said debts of lOOZ. and 300Z. respectively. And, Upon payment by Sturgis and Hall (as the assignees of the said Joseph Bullock), or one of them, of the total amount due fur prin- cipal, interest and costs, and subsequent principal, interest and costs, within three months, &c.. Let the plaintiffs assign, Src, &c., /?2 default of such payment foreclose the said defendants Sturgis and Hall. And in that case, Compute subsequent interest upon the amount found due to the plaintiffs in respect of the said principal sum of 300/., and tax the plaintiffs their subsequent costs in respect of the said sum of SOOl. And, Upo7i payment by the defendant Anne Bullock of the amount found due in respect of the said sum of 300Z., within three months, &c., Let the plaintiffs assign the premises comprised in the security for 300Z., to the said Anne Bullock, free, &c. (1887)- Ln default of such payment, foreclose the said defendant Anne Bullock (1888)- But in case the defendants Edmonds, Painton and Hall shall redeem the plaintiffs, Take an account of what is due to them for principal and interest on their security of November, 1849, and compute subsequent interest on what they, or some or one of them, shall so pay to the plaintiffs, in respect of the said sums of lOOZ. and 300Z., and tax the defendant Edmonds his costs (a). And, Upon the defendants Sturgis and Hall, as such assignees, or one of them, paying to the defendants Edmonds, Painton and Hall, some or one of them, the amount found due to them for principal and interest, and also paying to them or such of them as shall redeem the plaintiffs, what they or he shall so pay the plaintiffs, and subsequent interest thereon as aforesaid, and to the defendant Edmonds his costs of this suit, within three months, &c.. Let the defendants Edmonds, Painton and Hall assign to the defendants Sturgis and Hall, free, &c. (1S87)- In default of defendants Sturgis and Hall, or one of them, paying to the defendants Edmonds, Painton and Hall, or one of them, &c., and also paying to the defendants or such of them as shall redeem the plaintiffs, what they or he shall so pay to the plaintiffs, and subsequent interest as aforesaid, and to the defendant Edmonds his costs, foreclose them (1888). And in that case, Compute subsequent interest on what the defendants Edmonds, Painton and Hall, some or one of them, shall have paid to the plain- tiffs in respect of the said security for 300/., and tax the defendant (a) The reason for this distinction is not apparent. for 8001., free, &c. (1887), to the said deleiidant Anne Bullock. Jn in default, fore- clobure. default, foreclose her (1888)- ni LL V. EDMONDS. 1 < • J 1 r.diiionds his costs of suit iu respect of the 300/. A/td upon pavnioiit And redemption, n 11 1 1 I !■ 1 i-i 1 II • by wife of moit- bv the deiendant Anne JJullock to tlie ueienuaiits i-.dniouus, I'auilon Kagor, upon pay- and Iliill, or such of them as shall redeem the jjlainlitis, the amount !nJ;u[,'brln*ce"!!of found due to them in respect of such principal, interest and costs, and a'nount paid by ' _ ... . tliem on rcdemp- to the defendant Edmonds his costs of this suit in respect of the said lion thereof, and n 1 . , . , ID r , 1 1 r- 1 1 T-' 1 1 subsequent inte- sum of 300/., within three months, &c., Let tlie defendants hduionds, rest and conts. Painton and Hull assiifn the i)remises comi»rised in the i-aid security In I clou 1910. And in case the defendants Sturgis and Hall, as such assignees, in case of re- shall redeem the plaintiffs or the defendants Edmonds, Painton and gfJJJees"" ^ ^ IJall, Compute subsequent interest on what they or one of them shall Subsequent ac- , 1 1 p 1 1^ 1 in- tounts in respect nave so paid to the plaintms or to the deiendants Edmonds, rainton of the30o;. secu- and Hall, or such of them as may have redeemed, in respect of the "'^ ' said security for 3U0Z., and Tax the defendant Sturgis his costs in respect of the said security for 300Z. And, Upon payment by the defendant Anne Bullock to the defendants And redemption Sturgis and Hall, as such assignees as aforesaid, or one of them, what gagor on payment shall be found due to them for what they or he shall have so paid to a°n,^ouJ,f p^'alfy the plaintilFs or the defendants Edmonds, Painton and Hall, or such them on redemp- ' .... "on thereof, and of thi'm as may have redeemed iu respect of the security for 3U0/. and subsequent inte- subsec[uent interest, and to Sturgis his costs of suit in respect of the provisional as- said sum, within three months, &c., Let the defendants Sturgis and s»guee- Hall assign the premises comprised in the security for 300/., free, &c. (1887), to the defendant Anne Bullock, «Scc. In default, foreclose in default, fore- her (1888)- Just allowances. ABSTRACT of Foreclosure Decree in favour of the 1911. Assignee of a Mortgage of several Estates, of the Equity of Redemjytion of one of lohich she is Pur- chaser, and for Specific Performance of Agreement for Purchase of the latter Estate against the Repre- sentative of the Mortgagor. SOBER V. KEMP(rt). Plaintiff, mortgagee by assignment of estates "W. X. and Y. witli agreement for tlie purchase of the equity of redemption of ^^ . K. devisee and legal personal representative of mortgagor and vendor. B. mortffasree of later date of estates X. Y. and Z. L. mortgriis:ee after B. of same. ■o"o (a) 6 Hare, 160, note. 3 Y 2 1052 APPENDIX. 1912. Decree. — Declare that the agreement for the sale of W. ought to be specifically performed and carried into execution, and decree the same accordinglj'. Let K., as devisee and legal personal representa- tive of testator, convey W. to the plaintiff, or as she shall direct. 1913. Account of what is due to plaintiff for principal and interest, and tax her costs. Aiid upon payment by B. of what shall be so due, Let the plaintiff assign the premises comprised in her said mortgage, other than W., free from all incumbrances. And deliver up deeds, &c. /m default, foreclose B. Like directions as to L. and K. successively. 1914. In case B. shall redeem, account of what is due to him, and upon payment by L., Let B. assign the premises comprised in his mortgage, and in the mortgage to the plaintiff' other than W., free from incumbrances, and deliver deeds, &c. to L. In default, foreclose L. And like process as to K. If L. should redeem, account of what is due to him, and directions for redemption by, or foreclosure of, K. HUGHES V. WILLIAMS. See 3 Mac. Sf G. 683. 1915. A. seised of estates 1, 2, 3, 4, subject to a legacy of 800Z. payable to B. afterwards the wife of Z. 1818. — A. mortgages 1 and 4 to C. 1822. — A. settles 1, 3 and 4, making himself tenant for life, and X. tenant in tail in remainder, and covenanting against in- cumbrances by himself or his ancestors. 1823.— A. leases part of 1 to T. 1836. — A. mortgages 2 to D. 1843. — E. becomes registered judgment-creditor, with agreement for a legal mortgage of T.'s lease (a). 1844. — A. becomes insolvent and F. his assignee. On Bill by E. Decree by Wigrani, V.-C, April, 1848. 1916. Account of what is due to B. for principal and interest from the end of a year from testator's death (1927) ; and of what is due to C. andD. On payment by E. to B., C. and D., Let them convey; And in default, dismiss the bill. But in case of redemption by E., If F. shall pay E. what she shall have paid to B. C. and D. and her own debt; Let E. convey to F. (a) There were subsequent incumbrancers intervening between E. and F., as appears by the decree on appeal (1923)' HUGHES V. WILLIAMS. 10J3 In default, foreclose F. And in case of such foreclosure, and of payment of such sum to E. by X., Let E. convey to X. Jn default, foreclose X. Per Lord Truro, C, on appeal. First, it is wrong to foreclose X. upon non-payment to B. and C. ; 1917. because, though theirs are good charges on the inheritance, and ])rior to the settlement, yet as A. covenanted against incumbrances by him- self or his ancestors, the settled estates are exonerated from incum- brances as between A. and X., who is a purchaser for valuable con- sideration under the settlement. Then E., the plaintitf, is subject to the same equities as A., and is not in the situation of a purchaser for valuable consideration without notice ; and cannot compel X. to pay oH" incumbrances, against which A. covenanted by the settlement. As between A., or tlie plaintiff claiming under him, and X., the effect of the covenant in the settlement is to throw the incumbrances prior to the settlement on estate 2; or on the life estate only of A. in the settled estates 1, 3 and 4. (Averall v. Wade, LI. & Goo. t. Sugd. 252.) Secondly, as to the foreclosure of X , on non-payment of the amount 1918. due to D. D.'s mortgage only comprises estate 2, which is not in settlement, and in which X. has no interest. The decree is therefore wrong in this also. Thirdly, the judgment-debt being the debt of A., and subseqeunt to 1919. the settlement, cannot affect X., against whom the bill should be dis- missed. Therefore, Dismiss the bill as against X., with costs to be taxed and paid by 1920. the plaintiff. Account of what is due to Z. and B. his wife, in right of B., for 19^1. principal and interest on her legacy of 8U0/. — interest to be at 4/. per cent. (1687). for six years prior to the filing of the bill, or at tlie rate directed by the will — and tax their costs. Account of what is due to C. and D. for principal and interest. D. accounting for rents and profits received by him, and tax their costs. Upon the plaintiff paying to Z. and B. his wife the amount of prin- 1 922. cipal, interest and costs due to her, and paying to C. and D. their principal, interest and costs, within six montlis, &c., Let Z. and B., C. and D., respectively assign and convey. In de- fault, dismiss bill with costs to be paid by plaintiff. But in case plaintiff shall redeem them, compute subsequent in- 1923. terest upon what plaintiff shall pay, and take account of w hat is due to plaintiff for principal and interest upon her judgment-debt, and tax her costs ; 1054 APPENDIX. And upon payment by subsequent incumbrancers to plaintiff, of what she shall pay to Z. and B. his wife, C. and D., for principal, in- terest, costs and subsecjuent interest, and also plaintiff's principal, in- terest and costs, within three months, &c., Let the plaintiff release and convey, &c. I?i default of payment by subsequent incumbrancers, foreclose them and 1 924, Compute subsequent interest upon plaintiff's payments, and upon what is found due to her, and tax her further costs. And upon payment by F. to plaintiff of what she shall have paid to Z. and B. his wife, C. and D. with subsequent interest, and what is due to herself as aforesaid, within three months, &c.. Let plaintiff convey to F, In default, foreclose him. 1925. In case of redemption by subsequent incumbrancers. Compute sub- sequent interest upon what they shall pay, and take account of what is due to them on their judgment-debt, and for their lien secured by deposit of title deeds, deducting rents received by them, and tax their costs ; And upon payment to them by F. of the total amount due, ■within three months, &c.. Let them release and convey to F. In de- fault, foreclose F. Usual directions. Liberty to apply. CHAPPELL V. REES. See 1 De G., M. Sf G. 393. 1926. A. seised of estates 1, 2, 3, 4, subject to a legacy of 800Z. payable to B. Mortgages 1, 3, 4. Settles same upon himself for life, remainder to first (X.), and other sons in tail, and covenants against incumbrances. Mortjrages 2. Becomes insolvent ; and F. appointed assignee. On bill by F. seeking an account of incumbrances, that the priorities, and the extent to which the rights of X. are subject to in- cumbrances, might be ascertained, and for a sale and divi- sion ; or that the plaintiff may redeem if necessary, and the estate of X. be made liable as far as is proper. Decree by Wigram, V.-C. 1927. Calculate interest on the legacy for one year after the testator's death (a) (1916). Account of what is due to the several incumbrancers. And on the plaintiff and defendant X. paying to the said defendants (the incumbrancers) respectively what shall be found due to them re- spectively for principal, interest and costs, within six months, &c., at (a) Per Lord St. Leonards on appeal. The decree is right except as to the part which relates to the allowance of interest upon the legacy for a period beyond six years from the filing of the bill. CHAPPEL]. /'. UEES. 1055 sucli time and place, &c., the said defendants, the incmnbrancers, are to release and convey the said estates respectively comprised in their several mortgages and incumbrances, and according to the respective interests of the several parties, free and clear, &c., that is to say, As to the estate 2 (unsettled), to the plaintiff, and the defendant X , 1928. or to such of them as shall so redeem the same ; And as to the other three estates, 1, 3, 4 (settled), upon the trusts 1929. of the settlement dated, &c., in the pleadings mentioned (delivery of deeds, &c.) But in default of the plaintiff and X., or either of them, redeeming the said mortgaged premises within the time aforesaid, DLvniss the plaintiff's bill with costs to be taxed, and to be paid by 1930. the plaintiff. Usual directions. ALDWORTII V. ROBINSON, 1840. Reg. Lib. A., 1839, /o. 874 ; and see 2 Beav. 287. 1826. — Grove End Farm (A.) mortgaged by Lindsey and another, and 1 931 . estate (B.) mortgaged by Robinson to plaintiff to secure 6,000/. and interest advanced to Robinson. 1826. — Grove End Farm (A.) also mortgaged to plaintiff to secure 5,000/. and interest, advanced to Lindsey. 1828. — September and October. Further charges on both estates to secure 500/. and interest advanced to Robinson. It seems that Lindsey devised part of his mortgaged estate (A ) to Lydia Elizabeth Robin>on in fee, and other part for life, with remainder to Robinson the mortgagor, and devised to him the other part, subject to incumbrances mentioned in the will. 1932. Decree. — The defendant Maria Ainge disclaiming by answer all Dismissal of dis- _? 1 -LMi • 1 claiming defend- interest in the mortgaged premises ; Dismiss the bill as against hor ant. with costs, such costs, when taxed, to be paid by the plaintiff and added to his cost?. Account of what is due to the plaintiff for principal and interest in Accounts. respect of the several mortgaged debts of 6,000/. and 500/., secured to him by the first-mentioned indentures of 1826, and by the further charges of 1828. And a like account of what is duo for principal and interest in respect of the mortgage debt of 5,000/., secured by the secondly mentioned indentures of 1826, and tax the plaintiff his costs. Let the said costs when taxed, and the costs hereinbefore directed Cofts. ,,„, -,,•«• 1 ■ IT-, Apportionment to be paid to the defendant Maria Ainge, be apportioned between g,. 1056 APPENDIX. On payment by mortpapor and devisee of surety, or either of them, of all : Or on payment by mortgagor of debts secured on both estates ; the said debt of 5,000/. and tlie total amount of the debts of 6,000/. and oOO/. (viz. 6,000/.), according to the amounts of the said principal sums. And upon the defendants Robinson and L. E. Robinson, or either of them, paying to the plaintiff the amount due in respect of the whole of the said principal monies, interest and costs; Or if the defendant Robinson shall piiy to the plaintiff what, upon taking the said accounts, shall be found due to him in respect of the several debts of G,000/. and 51)0/. with the apportioned costs in respect of those debts, such payments to be made witiiin, &c. ; 1933. Convey A. to the several devisees thereof, anil B. to mort- gagor. 1934. If mortgagor shall pay debt secured by both estates, and the other de- visee of A. that secured by A. only, Convey B. to the mortgagor. and A. to the other devisee thereof, subject, &c. Let the plaintiff" convey as follows, viz. : — If the defendant Robinson shall pay the whole of the said prin- cipal, interest and costs. Let the plaintiff convey unto and to the use of the defendant L. E. Robinson, her heiis and assigns, or as she or they shall appoint, the premises comprised in the secondly mentioned indenture of 1826, and devised to her by the will of the said J. Lindsey. And also convey to her and her assigns for her life, with remainders over, and subject as in the said will mentioned, all such part of the mortgaged hereditaments comprised in the last-mentioned indenture as are so devised to her. And convey unto and to the use of the defendant Robinson, his heirs and assigns, or as he or they shall appoint, subject nevertheless and with such powers as in the said will mentioned, all other the here- ditaments comprised in the last-mentioned indenture, and devised by the said will to the defendant Robinson in fee, subject as in the said will is mentioned. And convey to him, his heirs and assigns, or, frc, the hereditaments comprised in the said indenture of I'^^ii first mentioned. All the said estates to be conveyed free from incumbrances by, &c. And the plaintiff to deliver upon oath to the defendant L. E. Robin- son, or &c., all deeds, &c. solely or principally relating to tlie premises to be conveyed to her, pursuant to the directions hereinbefore con- tained. And (like form as to defendant Robinson). But if the defendant Robinson shall pay what shall be due in re- spect of the said mortgage debts of 6,000/. and 500/., and the costs apportioned in respect of those debts: And the defendant L. E. Ro- binson shall pay what shall be found due in respect of the said mott- gage debt of 5,000/., and the costs apportioned in respect thereof: Let the plaintifi' convey unto and to the use of the defendant Robin- son, his heirs, &c., the hereditaments comprised in the first stated in- denture of 1826, free, &c., and deliver upon oath, &c. And convey unto and to the use of the defendant L. £. Robinson, or as she or they shall appoint, the hereditaments comprised in the secondly stated indenture of 1826, subject nevertheless to such powers ALDWOinil /•. ItOBINSON. 1057 and charges contained in tlie will of the said J. Lindsey, or such of tliem as shall be suhsistin;,' unsatisfied ; such conveyances to be nmde I'ree, &c., and the ])luintiil' to deliver up, &.c. 7/" the defendant Robinson shall pay the plaintiff what shall be if moripapor* found due in respect of the 0,000/. and 500/., and the costs apportioned cureV'b '^ b'^^''i' '*^" in respect thereof: Hut the defendants Robinson and L. E. Robinson but neither de- shall not, nor shall either of them, pay what shall be due in respect of fe"dant ohail pay * i J tr that secured by the 5,000/ , and tiie costs apportioned in respect thereof: -A- only, Let the plaintiff" convey to the use of the defendant Robinson, his convey B. to the heirs and assigns, or, &c., the hereditaments comprised in the indenture "'O'^eagor, of 18-26,^rs/ stated, irita from incumbrances, and deliver, &c. And in such last-mentioned case let the defendants Robinson and and foreclose him L. E. Robinson stand foreclosed of all right and equity of redemp- vu'lel'of A.^s'To' tion in the hereditaments comprised in the secondly stated indenture of ■'^• 18-26. 1936. And if the defendant L. E. Robinson shall pay the whole of the if the other de- said principal money and interest, and costs, ^a^lu'^''^' *''"" Let the plaintiff convey unto and to the use of her, her heirs and convey both es- assigns, or &c., all the before-mentioned hereditaments, as well those '^tes to her, sub- . , ject, SiC. comprised in the secondli/ stated as in the Jirst stated indenture of 1826, but as to the hereditaments devised by the will of the said J. Lindsey, subject to the said powers and charges therein contained, or such of them as shall be then subsisting and unsatisfied, free, &c., and the plaintiff' to deliver, &c. 1937. And in that case compute subsequent interest upon what the defen- And compute dant L. E. Robinson shall so pay to the plaintiff for principal, interest J"s'{'''^"^"' '"'^" and costs as aforesaid. And upon the defendant Robinson paying to And upon pay- the defendant L. E. Robinson what she shall so pay to the plaintiff" mortgagor^ ^ with such interest thereon as aforesaid within three months, &c.. Let the defendant L. E. Robinson convey to the defendant Robinson, Let her convey to his heirs and assigns, or, kc, the hereditaments comprised in the in- '"'^ ^- • denture of 18'20, ^ns^ stated, and all tiie hereditaments comprised in and so much of the indenture of 1826, srcond/i/ stated, and by the will of J. Lindsey fo'hTm!tuS"s devised to the said Robinson, subject nevertheless, as to the heredita- to part to her ufe- . • 1 -ii 11. interest therein, ments devised by the said wdl to the detendant L. E. Robinson for her life, to her life interest therein, and subject, as to all the said heredi- taments, to such powers and charges as by the said will were made or given, or which may be still subsisting unsatisfied. And deliver ail deeds, &c., solely or principally relating to the hereditaments herein- before directed to be conveyed, to the defendant Robinson. 1938. But in default of the defendant Robinson so paying to the defendant in default, fon- L. E. Robinson such principal, interest and costs, Let the defendant *^'°''* '"°"8agor- Robinson be absolutely foreclosed, «k:c. And in default of the defendants Rubinson and L. E. Robinson, or Vpon non-pay- 1058 APPENDIX. nieiit by either, foreclose both. either of tliem, making such payments, kc, Let them both stand ab- sohitely foreclosed, iScc. Usual directions. Liberty to apply. 1939. BARNES V. RACSTER. 22 April, 1842. Reg. Lib. A. 1841, fo. 1221 ; reported, I Y. Sf C. C. C. 401 (a). £ 1784 1792 1795 1798 1800 Jauncey and wife Barnes (plaintiff) Hartwright Williams Barnes (plaintiff) A. B. C. A. 243 292 292 325 13,553 Foxhall Foxhall No. 32 X. X. (This being also a further security for the debt secured by the deed of 1792.) 1801 1803 1804 Williams Baker and Bury Will lams £ c. 292 Foxhall . X. • • 143 . . 13,553 No. 32 . Y. c. 13,553 No. 32 . Y. The following payments were ordered : — To Jauncey and wife " Plaintiff a proportionate part of " Hartwright, residue of " W^illiams " Plaintiff, proportionate part of . " Baker and Bury, further part of " Williams, residue of . and . . . . £243. 292. same. 325. 13,553. same. same. 143. 1 940. Decree. — It appearing that the 243/. stock will be insufficient for payment in full of the amount reported due to the defendants Jauncey, and Jane his wife, for principal and interest under the security of 1784, and their costs, Produce of secu- Let the said sum of 243/. stock be sold, and out of the produce, and Jim mortgagees, out of the amount due in respect of interest thereon, pay the costs of (a) The dates of the incumbrances are in the first column ; the names of their owners in the second; the sums of the stock in the fourth represent in round numbers the investments of the purchase-monies of the several estates ; the fiftli column contains the names of the several estates as stated in the judgment in Yoimge and Collier; and the letters in the third and sixth columns refer to the text, where this case is noticed upon the subject of marshalling (1362)- BARNES V. KACSTEK. 1059 the above-naniod defendants, and pay the residue to them in discharge of the said security of 1784. It appearing that plaintiffs, under their security of 1792, are tlie 1941. first incumbrancers upon estates now represented by 202/. stock, and, under their several securities of 1800, are also the first incumbrancers upon estates represented by 13,5."):3/. stock, and that the last-niontioned securities are also a further security for the debt secured by the inden- ture of 1792 : And that if the plaintiffs were to resort for payment of the debt due to them to the fund representing the estate comprised in the security of 1792, so far as the same would extend, they would ex- haust the whole thereof; and if they were to resort for payment of the debt due to them exclusively to the funds representing the estate com- prised in the securities of 1800, they would to a great extent disap- point the third incumbrancers on the last-mentioned fund : 1942. Declare that the plaintiffs ought to receive payment of the amount Apportion and due to them for principal, interest and costs, out of the two funds of respect or secu- 292/. stock and 13,553/. stock, and the respective amounts of cash mo! "atelbiy''"'^ which shall be certified to have accrued in respect of the said funds ?^' °'^F°.?''"'' . , , . . (X)and No. 32 respectively, rateably and in proportion to their respective amounts. (Y). And let the amount due to the plaintiffs by virtue of their security of 1792, and of their several securities of 1800, and their costs and sub- sequent interest and costs, be apportioned rateablj' and in proportion to the amount of the said two funds of 292/. stock and 13,553/. stock, and the respective amounts of cash due in respect of the said funds respectively, and let the amounts be certified accordingly. And it appearing that the said 292/. stock, and the dividends already 1943. accrued, or whicli may accrue due thereon, will be more than sufficient for payment of the proportion of principal, interest and costs of the plaintiff, to be paid out of the said fund, under the declaration herein- before contained, but will be insufficient for payment in full of the amount certified to be due to the defendants the Ilartwrights, by virtue of their security of 1795, with what shall be due to them for subsequent interest, and past and subsequent costs, Let the said sum of 292/. stock be sold, and out of the produce, and pay residue of out of the cash which has accrued or may accrue due in respect of the ^°-^''^" ^^l '" ' second mortgagee said sum of stock, pay the proportion of the i)laiutiff's costs, payable thereof, under the declaration hereinbefore contained, out of the same fund, and also the proportion of principal and interest payable thereout under the said declaration, in part discharge of the plaiutift^'s security of 1792 ; and out of the residue of such produce and cash pay the costs of the dtfendants the Hartwrights. Aiid in case the residue shall be more than suflicient for payment of the said costs. Let what shall remain of such residue be paid to the defendants the Hart- wrights, iu discharge of the principal and interest due under their security of 1795. 1060 APPENDIX. 1944. Pay produce of security of 1798 to C, the mortgagee thereof. And it ap])earing that the 325/. stock will be insufficient for payment in full of the amount due to the defendant Williams, under his security of 1798, with costs, and subsequent interest and costs, Let the said sum of 32oZ. stock be sold, and out of the produce, and out of the cash which has accrued, or may accrue due in respect of the said sum of stock, if the same shall be sufficient, pay the costs of the defendant Williams, and the residue in discharge of the principal and interest due under his security of 1798. But in case such produce shall be insufficient for payment in full of the costs of the defendant "Williams, pay the whole thereof in part discharge of his costs. 1945. Out of residue of No. 32 (Y), pay mortgagees of 1803. And then mort- gagee of 179s, 1801 and 1804. And it appearing that the said 13,553/. stock, with the dividends thereon, will be more than sufficient for payment in full of the proportion of the amount certified to be due to the plaintiffs under their securities of 1800, and of their costs, and subsequent interest and costs which shall be certified to be payable out of the 13,553/., and the cash due in respect thereof: And also more than sufficient for payment in full of the amount certified to be due to the defendants Baker and Bury- under their security of 1803, and their costs, and subsequent interest and costs, but will be insufficient for payment in full of the amount certified to be due to the defendant Williams under his securities of 1798, 1801 and 1804, and subsequent interest: Let the said sum of 13,553/. be sold, and out of the produce, and out of the cash which has accrued, or may accrue due in respect of the said sum of stock, pay the proportion of the plaintiff's costs, pay- able under the declaration hereinbefore contained, out of the said fund, and pay the proportion of the amount due to the plaintiffs for prin- cipal and interest under their securities of 1800, whicii, under the said declaration, is payable out of the said fund in further discharge of what is due to them in respect of the same securities, and thereout also pay the costs of the defendants Baker and Bury, and also what is due to them for principal and interest under their securities of March, 1803, in discharge of their said securities ; and after payment thereout, in case the costs of the defendant Williams shall have been fully paid under the declaration hereinbefore contained. Let the residue of the money to arise by sale of the 13,553/. stock be paid to the defendant Williams in part discharge of his principal and interest under the securities of 1798, 1801 and 1804; but if the costs of the defendant Williams shall not have been fully paid under the said declaration, then let so much of the balance of 13,553/, stock, and the said apportioned amount of cash, as shall remain after the payments hereinbefore directed to the plaintiffs, and the defendants Baker and Bury, and for their respective costs, as will make up the deficiency of such costs of the defendant Williams, be paid for the residue of his costs, and let the remainder be paid to him in part discharge of the principal and interest due to him by virtue of the securities of 1798, 1801 and 1804. RARXER r. RACSTER. lOGl Audit appearing that the defendants Baker and Burj-, who, under 1946. tlieir securities of 1803, are first incumbrancers of tlie estate now represented b)' the said sum of 143/. stock, will be fully satisfied the amount due to tliem for jirincipal and interest, by virtue of th "ir secu- rity of 1803, together with their costs, by the means hereinbefore mentioned : And that the 143/. stock, with tiie dividends thereon, will be insuflScient for payment in full of the balance due to the defendant "Williams under the securities of 17U8, 1801 and 1804, with subsequent interest after the payments hereinbefore directed in resjiect of hi> said securities : Iransfer the said sum of 143/. stock, and pay the casli due in respect Pay produce of thereof to the defendant Williams, in discharge of the securities of in '^further dis- ' 1798, 1801 and 1804. And for the purposes aforesaid, &c. i8o[^anciS^804.' And let the plaintiffs, out of the monies to be received by them l 947 under this order, pay to the defendants J. Jauncey, and Jane his wife, Mortgagees to be the sum of 75/. 18s. Gd., being the amount of rents and profits which wlIiclTriu;" ''"™* the said defendants ought to have received as first mortgagees. And should have re- ,, , o c ceived. to the defendant Williams the sum of 101/. I8,s\ Gr/., being the amount which the last-named defendant ought to have received as first mort- gagee. _ , 1948. And that the plaintiffs and defendants do respectively deliver to Ji. Y., Delivery of JeeJs the purchaser of the hereditaments mentioned in the pleadinas, all title ^o P""''^*"- deeds and muniments of title relating to the said hereditaments and premises in their respective custody, possession or power. Liberty to apply. 1062 APPENDIX. OF SECURITIES UNDER VARIOUS STATUTES. 1949. Bishop to direct inquiry as to residence. 1950. May raise money by mortgage of glebe and profits of benefice. 1951. Duration of mortgage and liability of incum- bent. 1952. Patron and in- cumbent may object. Bishop ma7 refuse. Of Securities upon Ecclesiastical Benefices (a) (393). Upon or at any time after the avoidance of any benefice, the bishop is authorized and required to issue a commission to four beneficed clergymen of his diocese, or if the diocese be within his pecuhar juris- diction, but locally situate in another diocese, to four beneficed clergy- men of such diocese, one of whom shall be rural dean (if there be any), directing them to inquire whether there is a fit house of residence within the benefice, and what are the annual profits of the benefice, and if the clear annual profits exceed 100/., whether a fit house can be provided on the glebe or otherwise. In case it be reported in writing by the commissioners, or any three of them, tliat there is no fit house of residence within the benefice, that the annual profits exceed 100/., and that a fit house can conveniently be provided on the glebe, or on land which can be conveniently pro- cured, the bishop is to obtain an estimate of the cost of the work, and thereupon, by a mortgage of the glebe, tithe, rents, rent-charges and other profits, to raise the amount of the estimate (after deducting the value of the saleable materials), not exceeding four years' net produce of the benefice, after deducting outgoings, except the salary of the assistant curate where necessary. The mortgage is to be made for a term of thirty-five years, or till the money to be raised, with interest, costs and charges, be fully paid; and every incumbent is liable to the payment of so much priucipiil, inte- rest and costs, as according to the act shall become payable during his incumbency, and he and his representatives are liable to proportionate payments for the year whicii shall be growing at the time of the incumbent's death or the avoidance of the benefice; which said priu- cijial, interest and costs, and proportionate payment growing at the time of the death of the incumbent or of the avoidance, may be reco- vered by action of debt in any court of record (b) (703)' The bishop is to transmit copies of the report to the patron and incumbent, on wliose objection within two months the bishop may modify the plan ; or if he shall think it not expedient to raise money by mortgage, or take other measures for providing a house, he may state in detail the special circumstances and the ground of his opinion in the next annual return made, according to the act, to the Queen in Council (c). («) The Benefices Plurality Act, 1 & 2 Vict. c. lOG. (i) Sect. (i2. (c) Sect. 63. OF SECURITIES UNDER VARIOUS STATUTES. 1063 1953. Every niortgagee is to execute u counterpart of the mortgage, to be Coumcipait and ke])t by the incumbent for the time being, a copy being registered with n!ortgage?"" the registrar of the bishop, and the deed, or a certified copy, is to be allowed as legal evidence in case the original be lost or destroyed (a). 1954. Whenever the principal and interest directed to be paid to the mort- Mortgagee may gagee under the act is in arrear for forty days, the mortgagee, his executors, administrators or assigns, may recover the same with costs by distress and sale, as landlords may recover rents in arrear (/;) (832)- 1955. The money raised is to be paid to a person or persons nominated by Application of the bishop, who is to contract for and see to the execution of the works, *"°°^y "^^''^ • and to pay the money expended and the costs of the mortgage, and to account to the bisliop; and any balance is to be applied in lasting improvements iu building on the glebe or in discharge of the principal debt(c). 1956. The incumbent and his successors, after the expiration of the first Mode of payment c .\ ^ /• I • I ^ c ^\ ■ • I 1 11 1 of principal and year or tlie term (in whicli year no part ot the principal shall be interest. repaid), is to pay every year to the mortgagee one-thirtieth of the principal until repayment of the whole; and at the end of the first and each succeeding ye:u- shall pay yearly interest on the unpaid part of the principal; and shall annually insure, at his own expense, in a sum to be fixed by the bishop ; and in default of payment of principal or interest, or neglect to insure, the bishop may sequester the profits of the benefice till such payment or insurance be made (d). 1957. The sum payable at the end of the year in which there shall be an Apportioimu-nt avoidance of the benefice shall be apportioned between the successor and benTfic'e.*'"^ " the incumbent avoiding the benefice by death or otherwise, or his representatives, in proportion to the profits received by them respec- tively during the year ; the amount to be determined by arbitration iu case of difference (e). 1958. All monies received from representatives of any former incumbent. Application of , , 1 ■ 1 . • • . 1 1- 1 • . !■ .1 . monies received and not laid out in repairs, are to be applied in part ot the payments for dilapidations. under the estimate ; and all money thereafter to be recovered or received after the completion of and payment for the buildings, is to be applied in payment of the principal of the mortgage debt: or, in case of discharge thereof, shall be paid into the hands of the bishop's nominee, to be expended in additional buildings or iniprovenients upon the glebe, to be approved by the bishop ; and in the meantime, or in case such buildings are not necessary, shall be laid out in government or other good securities, and the interest thereof paid to the incumbent for the time being {J'). (a) Sect. 64. (d) Sect. 67. (b) Sect. G5. (f) Sect. 68. (c) Sect. 66. (/) Sect. 69. 1064 ArPEXDIX. 1959. Charity Commis- sioners may authorize mort- gages of charity estates. Of Securities under the Charitable Trusts Act. By tie Charitable Trusts Acts (a), the Board of Cliarity Conuiiis- sioneis niaj' authorize trustees of charity estates to raise any sum of money by mortgage of all or any part of the estates for making the repairs and improvements mentioned in the acts, and ordei'ed by the commissioners, or to any other purpose or object which the board shall consider to be beneficial to the charity or the estate, or the objects thereof, and which shall not be inconsistent with the trusts or inten- tions of the foundation, with such provisions as to the hoard may seem iiecessarj', for directing the trustees or administrators of the charity to discharge the principal debt or any part thereof, by such yearly or other instalments, within thirty years from the date of the security, as to the board may seem fit ; or to form an accumulation or sinking fund out of the income of the charity, for discharging the principal debt, or any portion thereof, within the same period : and shall give direc- tions as to the investment and accumulation of such fund, which shall be carried into effect by the trustees or administrators of the charit}'. 1 Q60 ^'^ Securities according to the Commissioners Clauses Act. By the " Commissioners Clauses Act, 1847"(Z'), the object of which is to comprise in one act sundry provisions usually contained in acts of parliament authorizing the execution of undertakings of a public nature by bodies of commissioners, trustees, or other persons, not being joint stock companies, and which extends only to such undertakings or commissioners as shall be authorized or constituted by any act of parliament thereafter to be passed, which shall declare that, the act shall be incorporated therewith ; the term " the commissioners" is defined to mean the commissioners, trustees, undertakers, or other per- sons or body corporate constituted by the special act, or therebj^ intrusted with powers for executing the undertaking (c). 1961. Form of raort- gages. AVith respect to the mortgages to be executed, and by whom, it is enacted that — Every mortgage or assignation in security of rates or other property authorized to be made under the provisions of that or the special act shall be by deed duly stamped, in which the consideration shall be duly stated ; and which shall be under the common seal of the commis- sioners if they be a body corporate, or if thej' be not a body corporate shall be executed by the commissioners or any five of them, and may be according to the form in the Schedule (B.) to the act annexed or to the like effect; and the respective mortgagees or assignees in security shall be entitled one with another to their respective proportions of the rates and assessments or other property comprised in such mortgages (a) Cliaritable Trusts Act, 185.3, 16 & 17 Vict. c. 137, s. 21 ; Charitable Trusts Amendment Act, 1855, 18 6c 19 Vict. c. 124, s. 30 j 23 & 24 Vict, c. 136, s. 15. (6) JO Vict. c. 16. (c) Sects. 1, 2. OF SECURITIES UNDER VARIOUS STATUTES. 10G5 or assignations rospeclivel\', according to tlie respective sums in such inortiraires or assignations mentioned to be advanced by sucli mort- gngees or assignees respectively, and to be repaid the sums so advanced, with interest, without any preference one above another by reason of the priority of advancing such monies, or of the dates of any such mortgages or assignations respectively (a). 1962. A register of mortijawes or assi^rnations in security shall be kept by Regisu-r of mort- , ■ , • . , . , . -1 1 gaRts to be kept. the clerk to the commissioners, and wliere by tlie special act the com- and to be open to missioncrs are authorized or required to raise separate sums on separate '"*P^' '°"- rates or other property, a separate register shall be kept for each class of mortgnges or assignations in security, and within fourteen daj's after the date of any mortgage or assignation in security an entry or memorial of the number and date thereof, and of the names of the parties thereto, with their proper additions, shall be made in the proper register ; and every such register may be perused at all reasonable times by any person interested in any such mortgage or assignation in security without fee or reward (0). 1963. Any person entitled to any such mortgage or assignation may Transfers of / ;. . , , . , . , , mortgages, transfer his right and interest therein to any otiier person; and every such transfer shall be by deed duly stumped, wherein the considera- tion shall be truly stated ; and every such transfer may be according to the form in the Schedule (C.) to the act annexed, or to the like effect (c). 1964. Within thirty days after the date of every such transfer, if executed Register of within the United Kingdom, or otherwise within thirty days after the ke^pt* arrival thereof in the United Kingdom, it shall be produced to the clerk to the commissioners, and thereupon such clerk shall cause an entry or memorial thereof to be made, in the same manner as in the case of the original mortgage or assignation in security, and for such entry the clerk may demand a sum not exceeding five shillings; and after such entry every such transfer shall entitle the transferee, his executors, administrators or assigns, to the full benefit of the original mortgage or assignation in security, and the principal and interest thereby secured ; and such transferee may in like manner assign or transfer the same again, toties quoties ; and it shall not be in the power of any person, except the person to whom the same shall have been last transferred, his executors, administrators or assigns, to make void, release or discharge the mortgage or assignation so transferred, or any money thereby secured {d), 1966. Unless otherwise provided by any mortgage or assignation in secu- interi>t on mort- rity, the interest of the money borrowed thereupon shall be paid half- ^'^f.teariy.''*"' yearly to the several parties entitled thereto («). (a) Sect. 75. (rf) Sect. 78. (6) Sect. 76. (c) Sect. 79. (c) Sect. 77. JT. VOL. II. 3 Z 1066 1966. Power to borrow money at a lower rate of interest to pay off securi- ties at a higher rate. 1967. Repayment of money borrowed at a time and place agreed upon. 1968. Repayment of money borrowed ■when no time or place has been agreed upon. 1969. Interest to cease on expiration of notice to pay off a mortgage debt. APPENDIX. If the commissioners can at any time borrow anj' sum of money at a lower rate of interest than any securities given by them and then in force shall bear, they may do so in order to pay off and discharge the securities bearing such higher rate of interest, and may charge the rates and other proi^crty which they may be authorized to mortgage or assign in security under that or the special act, or any part thereof, with payment of such sum and such lower rate of interest, in such manner and subject to such regulations as are therein contained with respect to other monies borrowed on mortgage or assignation in secu- rity (a). The commissioners may, if they think proper, fix a period for the repayment of all principal monies borrowed under the provisions of this or the special act, with the interest thereof, and in such case shall cause such period to be inserted in the mortgage deed or assignation in security ; and upon the expiration of such period the principal sum, together with the arrears of interest thereon, shall, on demand, be paid to the party entitled to receive such principal money and interest, and if no other place of payment be inserted in such deed such principal and interest shall be payable at the office of the commis- sioners {h). If no time be fixed in the mortgage deed or assignation in security for the repayment of the money so borrowed, the party entitled to re- ceive such money may, at the expiration or at any time after the expi- ration of twelve months from the date of such deed, demand payment of the principal money thereby secured, with all arrears of interest, upon giving six months' previous notice for that purpose, and in the like case the commissioners may at any time pay off the money bor- rowed, on giving the like notice ; and every such notice shall be in writing or ])rint, or both, and if given by a mortgagee or creditor shall be delivered to the clerk or left at the office of the commissioners, and if given by the commissioners shall be given either personally to such mortgagee or creditor, or left at his residence, or if such mortgagee or creditor be unknown to the commissioners, or cannot be found after diligent inquiry, such notice shall be given by advertisement in the London Gazette if the office of the commissioners is in England, the Edinburgh Gazette if it is in Scotland, or in the Dublin Gazette if it is in Ireland (c). If the commissioners shall have given notice of their intentiou to pay off any such mortgage or assignation in security at a time when the same may lawfully t)e paid off by them, then at the expiration of such notice all furtlier interest shall cease to be payable thereon, unless, on demand of payment made pursuant to such interest, or at any time thereafter, the commissioners fail to pay the principal and interest due (a) Sect. 80. (&) Sect. 81. (c) Sect. 82. OF SECURITIES UNDER VARIOUS STATUTES. 1067 at tlie expiration of such notice on such mortgage or assignation in s<'curity («)• ^ 1970. In order to discharge the principal money borrowed as aforesaid on Monies burrowed ,. ,. I . .1 • • 111 <J" security of security of any of tlie rates, the commissioners shall every year appro- rate* to be paid priate and set apart out of such rates respectively a sura equal to tiie pejlo^, ''™"*'^ prescribed part, and if no part be prescribed one-twentieth part of the sums so borrowed respectively, as a sinking fund to be apj)lied in paying ofl" the respective principal monies so borrowed, and shall from time to time cause such sinking fund to be invested in the pur- chase of exchequer bills or other government securities, or in Scotland deposited in one of the banks there incorporated by act of parliament or royal charter, and to be increased by accumulation in the way of cumpound interest or otherwise, until the same respectively shall be of sufficient amount to pay off the princijial debts respectively to which such sinking fund shall be applicable, or some part thereof, which the commissioners shall think ought then to be paid off, at which time the same shall be so applied in paying off the same in manner in the act mentioned (/<). 1971. Whenever the commissioners shall be enabled to pay off one or more Mode of pa>ing of the mortgages or assignations in security which shall be then pay- off mortgages, able, and shall not be able to pay off the whole of the same class, they shall decide the order in which they shall be paid off by lot among the class to which such one or more of the mortgages or assignations in security belong, and shall cause a notice, signed by their clerk, to be given to the persons entitled to the money to be paid off, pursuant to such lot, and such notice shall express the principal sum proposed to be paid off, and that the same will be paid, togetiier with the interest due thereon, at a place to be specified, at the expiration of six months from the date of giving such notice (e). 1972. Where by the special act the mortgagees or assignees in security of Arrears of inte- . *. 1 ^ /• • 1 r ^1 rest, when to be the commissioners are empowered to enforce tne payment ot tlie ar- enforced by rears of interest, or the arrears of principal and interest, due to them, je^j'e'ivlr™^"* °^ ^ by the appointment of a receiver, then if, within thirty days after the interest accruing iijton any such mortgage or assignation in security has become payable, and after demand thereof in writing, the same be not paid, the mortgagee or assignee in security may, without prejudice to his right to sue for the interest so in arrear in any of the superior courts, require the appointment of a receiver, by an application to be mnde as herein-after provided; and if within six months after the Arrears of prin- , ^ . ^. . cipa) and interest, principal money owing upon any such mortgage or assignation in security has become payable, and after demand tliereof in writing, the same be not paid, together with all interest due in respect thereof, the mortgagee or assignee in security, without prejudice to his right to sue /or such principal money, together with all arrears of interest, (a) Sect. 83. (c) Sect. 8.1. (6) Sect. 84. 3 z 2 1068 APPENDIX. 1973. As to the appoint- ment of a re- 1974. Account books to be open to the inspection of mortgagees. in any of the superior courts, may, if his debt amount to the pre- scribed sum, alone, or, if liis debt do not amount to the prescribed sum, he may in conjunction with other mortgagees or assignees in security whose debts being so in arrear, after demand as aforesaid, together with liis, amount to the prescribed sum, require the appoint- ment of a receiver, by an application to be made as provided iu the act (a). Every application for a receiver in the cases aforesaid shall in England or Ireland be made to two justices, and in Scotland to the sheriff, and on any such application such justices or sheriff may, by order in writing, after hearing the parties, appoint some person to re- ceive tlie whole or a competent part of the rates or sums liable to the payment of such interest, or such principal and interest, as the case may be, until such interest, or until such principal and interest, as the case may be, together with all costs, including the charges of receiving the rates or sums aforesaid, be fully paid ; and upon such appointment being made, all such rates and sums of money as aforesaid, or such part thereof as may be ordered by the said justices or sheriff, shall be paid to the persons so to be appointed, and the money so paid shall be so much money received by or to the use of the party to whom such interest, or such princifial and interest, as the case may be, shall be then due, and on whose behalf such receiver shall have been appointed, and after such interest and costs, or such principal, interest, and costs, have been so received, the power of such receiver shall cease (b). The books of account of the commissioners sliall be open at all seasonable times to the inspection of the respective mortgagees or as- signees in security of the commissioners, with liberty to take extracts therefrom, without fee or reward (c). 1975. Power to borrow on mortgage. Of Statutory Mortgages hy Joint Stock Companies. By the Companies Clauses Consolidation Act, 1845, joint stock com- panies authorized by their special acts to borrow money on mortgage or bond may (rf), subject to the restrictions contained in the special act, borrow sucli sums of money as shall from time to time bj' an order of a general meeting of the company be authorized to be borrowed, not exceeding in the whole the sum prescribed by the special act, and may secure the repayment with interest, by a mortgage of the un- dertaking (406) and the future calls on the shareholders, or by bonds (but not so as to preclude the application of the calls to the purposes of the company (e) without express provision). And on dis- charge of any part of the money borrowed niay(y) again, from time to time, borrow the amount paid off, upon obtaining the authority of (a) Sect. 80. (6) Sect. 87. (c) Sect. 88. {(l) 8 & 9 Vict. c. 16, s. 38. (e) Sect. 43. (/) Sect. 39. OF SECURITIES UNDER VARIOUS STATUTES. 1069 a general meeting of the company in cases where the money is not reborrowed in order to pay ott' any existing mortgage or bond. 1976. Where ("a") by the special act tlie company shall be restricted from Evidence of right , , -1 1 ,. ■ • c I ■ -.1 to borrow, borrowing on mortgage or bond until a dennite portion ot tlieir cajjital shall be subscribed or paid up, or where the authority of a general meeting is required for such burrowing, the certificate of a justice that such definite portion of the capital has been subscribed or paid up, and a copy of the order of a general meeting of the company autho- rizing the borrowing of any money certified by one of the directors or by tiie secretary to be a true copy, shall be sufticient evidence of the subscription or payment of such capital, and of the making of the order for borrowing; and upon production to any justice of the books of the company, and of such other evidence as he shall think sufficient, such justice shall grant the certificate aforesaid. 1977. Every mortgage and bond for securing money borrowed by the Fonnofmort- conipany shall be by deed (/*) under the common seal of the company, ^*^*" duly stamped, and wherein the consideration shall be truly stated, and may be according to the form given in the schedule, or to the like effect. 1978. The respective morf^a^ees are entitled, one with another, to their Mortgagees ea- ' ^ ° . • 1 • I titled without respective proportions of the tolls, sums and premises comprised in tlie preference. mort£Ho-es, and of the future calls, if comprised therein, according to the respective sums in such mortgages mentioned to be advanced, and to be repaid the sums so advanced, with interest, without any prefer- ence one above anotlier, by reason of the priority of the date of any such mortgage, or of the meeting at which it was authorized (c). And a like provision is made for the payment, without preference, of the obligees of the bonds {d), 1979. Within fourteen days after the date of any mortgage or bond, the Registration of number and date thereof, and the sums secured thereby, and the names •"'"''k^"- of the parties tliereto, with their proper additions, are to be entered in a register kept by the secretary of the company, and which is to be open to the perusal of the shareholders or bond creditors, or of any person interested in any such mortgage or bond (e). 1980. By "The Companies Act, 18G2" (/), every limited company under Registration the act is required (under a penalty of oOl. against any director, under Actofii.62. manager or other officer of the company who knowingly authorizes or permits the omission) to keep a register of all mortgages and charges specially affecting property of tlie company, and to enter into such register in respect of each mortgage or charge, a short descrip- (a) Sect. 40. Anglian Railway Company, 3 Mac. (6) Sect 41. & G- 125. (c) Sect. 42. («) Sect. 45. (d) Sect. 44. See Russell v. East (,/) 25 & 26 Vict. c. 89, s. 43. 1070 APPENDIX, 1981. Penalty for un- authorized mort- gages. 1982. Transfers of mortgages and registration thereof. 1983. Payment of interest. tion of tlio property mortgaged or charged, the amount of charge created, and the names of the mortgagees or persons entitled to such cliarge. The register is to be open to inspection by any creditor or member of the company at all reasonable times, the right being en- forceable both by a penalty in case of refusal, and also, as respects companies registered in England and Ireland, by the order of any judge sitting in chambers, or of the Vice- Warden of the Stannaries in the case of companies subject to his jurisdiction. By anotlier statute (a), which recited that many railway companies had borrowed money in an unauthorized manner, upon the security of loan notes, or other instruments purporting to give a security for repay- ment of principal sums borrowed at certain dates, and for payment of interest thereon in the meantime, a penalty was enacted equal to the amount purporting to be secured by any loan note or other negotiable or assignable instrument, thenceforth issued by any railway company, purporting to bind the company as a legal security for money advanced to them otherwise than under the provisions of an act or acts of par- liament, authorizing the company to raise such money and to issue such security. But it was provided that any company might renew any such loan note or other instrument issued by them prior to the pass- ing of the act, for any period not exceeding five years from that time. By this act the borrowing of money by railway companies otherwise than in conformity with the terms of their special act is impliedly for- bidden (b). Any person entitled to any mortgage or bond executed in pursu- ance of the Companies Clauses Act, may, from time to time, transfer his interest therein by deed duly stamped, which may be in the form given in the schedule, and in which the consideration is to be truly stated (c). And within thirty days after the date of every such transfer, if executed within the United Kingdom, or otherwise within thirty days after the arrival thereof in the United Kingdom, it shall be produced to the secretary, who shall cause an entry of it to be made in the same manner as the original mortgage [or bond] ; and after such entry every such transfer shall entitle the transferee to the full benefit of the original mortgage or bond, in all respects ; and no transferor, after transfer, shall have power to make void, release or discharge the mortgage or bond so transferred, or any money thereby secured ; and until such entry, the company shall not be responsible to the transferee in respect of such mortgage [or bond] (d). The interest of the money borrowed upon any such mortgage or bond shall be paid at the periods appointed in such mortgage or bond ; and if no periods be appointed, half-yearly, to the several parties (a) 7 & 8 Vict. c. 85, s. 19. (i) Chambers v. Manchester and Milford Railway Company, 10 Jur. N. S. 700. (c) 8 & 9 Vict. c. 16, s. 46. (d) Sect. 47. OF SECURITIES UNDER VARIOUS STATUTES. 1U71 entitled thereto, and in preference to any dividends payable to the shareholders of the company (a). 1984. The interest on any such mortgage or bond shall not be transferable Transferor except by deed duly stamped (h). ' *''*'" ' 1985. The company may fix a period for the repayment of the prin- Re-paymitu uf cipal money borrowed, with the interest, and in such case shall cause fnteresr. such period to be inserted in the mortgage deed or bond ; and upon the expiration of such period the principal sum, together with the arrears of interest thereon, shall, on demand, be paid to the party entitled to such mortgage or bond ; and if no other place of payment be inserted in such mortgage deed or bond, such principal and interest shall be payable at the principal office or place of business of the company (c) (704). If no time be fixed in the mortgage deed or bond for the repayment 1986. of the money borrowed, the party entitled to the mortgage or bond may at, or at any time after, the expiration of twelve months from the date of such mortgage or bond demand payment of the principal money with all arrears of interest upon giving six months' previous notice for that purpose, and iu the like case the company may at any time pay off the money borrowed on giving the like notice (1379) ; and every such notice shall be in writing or print, or both ; and if given by a mortgagee or bond creditor shall be delivered to the secretary or left at the principal office of the company ; and if given by the company shall be given either personally to the mortgagee or bond creditor, or left at his residence ; or if such mortgagee or bond creditor be unknown to the directors, or cannot be found after diligent inquiry, such notice shall be given by advertisement in the London or Dublin Gazette, according as the principal office of the company shall be in England or Ireland, or in some newspaper, as thereafter mentioned (d). 1987. If the company shall have given notice of their intention to pay off Cesser of any such mortgage or bond, at a time when the same may lawfully be '" ^"* ' paid off by them, then at the expiration of such notice all further interest shall cease to be payable on such mortgage or bond, unless on demand of payment made pursuant to such notice, or at any time thereafter, the company shall fail to pay the principal and interest due at the expiration of such notice on such mortgage or boud(e). 1988. Where by the special act the mortgagees of the company shall be Appointment of empowered to enforce the payment of the arrears of interest, or of '^^"'*"- principal and interest due on such mortgages, by the appointment of a receiver, then, if within thirty days after the interest accruing upon any such mortgage has become payable, and after demand thereof in (a) Sect. 48. (d) Sect 51 ; see sect 138. {b) Sect. 49. (e) Sect 52. (c) Sect. 50. 1072 APPENDIX. 1989. Manner of ap- pointing re- 1990. Accounts to be open to inspec- tion. writinjr, the same be not paid, the mortgagee may, without prejudice to bis riglit to sue for tlie interest so in anear in any of the superior courts of law or equity, require the appointment of a receiver by an application to be made as thereinafter provided. And if within six months after the principal money owing upon any such mortgage has become payable, and after demand thereof in writing, the same be not paid, the mortgagee, without prejudice to his right to sue for such principal money, together with all arrears of interest, in any of the superior courts of law or equity, may, if his debt amount to the pre- scribed sum alone, or if liis debt does not amount to the prescribed sum, he may in conjunction with other mortgagees, whose debts being so in arrear after demand as aforesaid, shall, together with his, amount to the prescribed sum, require the appointment of a receiver by an application to be made as thereinafter provided (a). Every application for a receiver in the cases aforesaid shall be made to two justices ; and on any such application it shall be lawful for such justices by order in writing, after hearing the parties, to appoint some person to receive the whole or a competent part of the tolls or sums liable to the payment of such interest, or such principal and interest, as the case may be, until such interest, or principal and interest, as the case may be, with all costs, including the charges of receiving the tolls or sums aforesaid, be fully paid ; and upon such appointment being made, all such tolls and sums of money as aforesaid shall be paid to and received by the person so to be appointed ; and the money so to be received shall be so much money received by or to the use of the party to whom such interest, or principal and interest, as the case may be, shall be then due, and on whose behalf such receiver shall have been appointed ; and after such interest and costs, or such principal, interest and costs, have been so received, the power of such receiver shall cease (b). At all seasonable times the books of account of the company shall be open to the inspection of the respective mortgagees and bond cre- ditors thereof, with liberty to take extracts therefrom without fee or reward (c). 1991. Commutation of rights of lords of manors. Of Securities under the Copyhold Enfranchisement Act. Under the Copyhold Enfranchisement Act(c?), the rights of the lords of manors may be commuted for a rent-charge and fine certain on death or alienation ; and lords and tenants are empowered to effect voluntary enf*ranchisements. All lands enfranchised under the act are to be held under the same title as that under which they were held at the time of enfranchisement, and not subject to any incumbrances, claims or demands affecting the manor of which they are holden (e). (a) Sect. 53. (6) Sect. 54. (c) Sect. 55. (rf) 4 & 5 Vict. c. 35. (e) Sect. G4. OF SECUKITIES UNDER VARIOUS STATUTES. 1073 , , 1992. Tenants with limited interest, and wlio sliall pay any expenses or charge* by costs of enfrancliisoment, may, witii the consent of the copyhold com- n,JJtied ijitere»t. missioners, and by a simple entry on the court rolls, charge such expenses and costs, with interest at 41. per cent., on the copyholds to which the same relate, but so that the principal charge shall be les- sened in every year by one-twentieth of such original charge, and shall be subject to previous mortgages (a). 1993. The lord of a manor having a particular interest, or being a trustee. Charges by lords and who shall, in case of commutation, pay any such expenses or costs, Terest "or being may, with the consent of the commissioners, charge such expenses and tr'^*'«=e6. costs, and the expenses (to be previously approved by the commis- sioners, or by an assistant-commissioner) of employing agents to pro- tect his interests, or otherwise, with interest at il. per cent, per annum* on the manor to which the same relate, but so that the principal charge shall be lessened in every year following such charge by one-twentieth of the original charge, and shall be subject to previous mortgages {b). 1994. Immediately after the date of the final confirmation of the appor- charges take tionment, or from the date of the conveyance by which the enfran- fifniatfon'of^apl chisement is eftected, the lands shall stand charged with the respective portionment. sums mentioned in the apportionment to be j)ayable to the lord and steward, or other officers, with lawful interest from the day mentioned in the apportionment till payment ; and until payment, the person or persons for the time being seised of the manor shall be deemed to stand seised as mortgagee in fee thereof, for the benefit of tlie lords as to the sum payable to them, and of the steward or other officers as to the sums payable to him or them, and subject to the power of continuing the charge as thereinbefore provided. And the person so seised, or Remedies of the lords or stewards respectively in his name, may, from time to time, ™orteagees. adopt such means as a mortgagee in fee of freeholds is entitled to, for enforcing payment of such principal sums and interest, with the like right to obtain payment of all attendant and incidental costs and expenses ; and the lord shall have power to distrain on lands in respect of which the said sum or sums shall be payable, for receiving paj"^- ment of interest due thereon, as fully as if the same had been rent in arrear(e) (2003, 2019). 1996. Every such last-mentioned sum by the act charged on any lands priorities of shall be the first charge on such lands, and have priority over all *'**'^8e8. mortgages, charges and incumbrances afi'ecting such lands (except tithe rent-charges), notwithstanding such mortgages, charges and incumbrances shall be of earlier date than the charges under the act {d). 1996. Any tenantwhose lands shall be enfranchised under the act may charge chargci by tn- the same (or any of them, provided he shall hold the whole under the [enan'ts!'"* (a) Sect 68. (c) Sect. 70. (6) Sect. 69. (d) Sect. 71. 1074 APPENDIX. same right and same estate) with the payment of sucli sums as aforesaid, and the costs of such charges and lawful interest thereon respectively, to any person who shall advance such sums on the security of the lands so to be charged, and his executors, administrators and assigns ; and for securing tlie same witli interest may demise the lands, by way of mortgage for any terra of years, to the lender, his executors, ad- ministrators, assigns, or appointees ; so as such demise be made with a proviso that the term shall be void' on payment of the amount thereby secured with interest at an appointed time : and such charge shall have the like priority with the original charge under the act, and with the powers and rights to which a first mortgagee would as mortgagee by demise be entitled (a). 1997. Enfranchisement By another act (b) it was provided, that in addition and subject to of annual rent. the provisions of the act 4 & 5 Vict. c. 35, any enfranchisement may be made wholly or partly in consideration of a grant of an annual rent in fee, to be thenceforth charged upon and issuing out of the en- franchised lands ; the rent to be valued and subject to variation as a commutation rent charge under the said act. 1998. Mode of charging If the Consideration shall be wholly or partly a grant of an annual rent, the person empowered by the act to obtain enfranchisement may grant a rent to the person enfranchising, and his heirs, to the uses and upon the trusts, upon which the manor of which the lands are parcel was held at the time of enfranchisement; and may charge the rent on such of the lands enfranchised as shall be fixed on, and make the same payable by equal half-yearly payments (c). And the rent shall be a rent service, and shall be parcel of and appendant and appurtenant to the same manor as the lands enfranchised ; and may be granted either by a deed or by a schedule of appointment, to be made and signed pursuant to the directions of the acts. 1999. Priorities of Rents Created under the act are made a first charge, with priority rent-charges. ^^^^ ^]| q^]^qj incumbrances, though of earlier date, except tithe rent charges {d). And it is provided that sub-lessees shall not in conse- quences of any charge under the act be liable to the payment of a greater sum than if such charge had not been made (e). 2000. Recovery of costs, By a yet later act(y), the provisions of the former acts, as to the penses! *° '^^ recovery of expenses, costs and charges, to be paid by any tenant being a trustee, and not beneficially interested in the lands of which he stands admitted tenant, to be affected by any commutation or en- franchisement under the acts, shall extend as well to cases in which there shall not, as to those in which there shall be an apportionment or commutation on enfranchisement in pursuance of the acts. (a) Sect. 72. (^d) Sect. 7. (6) 6 & 7 Vict. c. 23, s. 1. (e) Sect. 8. (c) Sect. 2. (/) 7 & 8 Vict. c. 55, s. 1. OF SECURITIES UNDER VARIOUS STATUTES. 1075 2001. Every person beneficially interested in the lands, having a limited cuarKcn by pcr- beneficial interest only, and who shall nay any such expenses, costs ■•»"»" '*h'.'""'<-d ■' ' I J J 1 > >- ^•■•' beneficial iii- and charges to any tenant being such trustee as aforesaid, may, with tcresu. the consent of the copyhold commissioners, by entry on the rolls of the manor, charge such expenses, costs and charges, with interest at 41. per cent, per annum on the lands to which the same relate ; but so that the principal charged on such lands be lessened in every year following such charge, by one-twentieth at least of such original charge, and shall be subject to previous mortgages (a). 2002. The provisions charging and securing, and authorizing the chargin? Provisiuns as to and securing, the consideration money of any enfranchisement under wheTe^no'appor-^ the acts, and the costs of the charges with interest, and also as to the ''<"»ment. priority of charges and securities for the same, and otherwise in refer- ence thereto, are extended mutatts mutandis as well to cases in w Inch there shall not, as to those in which there shall be an apportionment on enfranchisement under the acts. And on any enfranchisement where there is no apportionment, the charge of the consideration money and interest is to commence from the date of the conveyance or assurance by which the enfranchisement is made(i). 2003. The provisions of the act 4 & 5 Vict. c. 35, s. 70 (1994), autho- Distress and rizing distress and entry in case of nonpayment of rent charges to be ^" ^^' granted under the act, are extended to all rent charges granted and made payable under the act of 6 & 7 Vict, or the present act (c). 2004. Under the Copyhold Act, 1852 {d), the compensation to be received Where lord's by the lord for enfranchisement, where effected at the instance of the l^°^''rMnaVn as a tenant, and where the compensation exceeds 20/., shall, if the commis- first charge, sioners so direct, and with the consent of all incumbrancers, if any, whose incumbrances shall have been in existence at the passing of the act, remain as a first charge on the land enfranchised, until the expi- ration of such time, not exceeding ten years from the day of such completion, as the commissioners shall appoint, and interest at 4/. per cent, per annum shall be payable thereon half-yearly ; and where the enfranchisement shall have been effected at the instance of the lord, the compensation shall be an annual rent-charge issuing out of the lands enfranchised. Provided that the parties to any enfranchisement under the act may agree, with the sanction of the commissioners, that the compensation shall be either a gross sum of money to be paid or charged as aforesaid, or a yearly rent-charge or a conveyance of land to be settled to the same uses as the manor of which the enfranchised lands are holden is settled, as provided in the former acts with respect to enfranchisements effected by virtue thereof. And the valuers are to frame an award showing the amount, nature and particulars of tiie (a) Sect. 2. (c) Sect. 7. {b) Sect. 4. (rf) lo & 16 Vict. c. 51, s. 7. 1076 AFPENDIX. 2005. Charges to be effected by certi- cate. 2006. Certificate and charge trans- ferable. 2007. Redemption of lent-chargeE. compensation, -wliich is to be in full satisfaction of all manorial rights, save as thereinafter mentioned. Any charge under the act is to be a first charge on the lands, and to have priority over all incumbrances affecting such lands (except tithe cnmnuitation rent-charges or charges under the drainage acts), notwithstanding the earlier date or anterior title of such incumbrances. Provided that, notwithstanding any such charge, any monies already invested, or previously secured or charged on the lands, may be con- tinued on the security thereof, notwithstanding the imj)osition of the charge under the act; and that no charge shall have priority over any incumbrance affecting the lands enfranchised at the passing of the act, without the consent of the persons entitled to such charge (a). Every charge under the act shall be made by a certificate under the hands and seals of the commissioners, to be called a certificate of charge, and such certificate shall specify the whole amount of prin- cipal money to be charged on the lands enfranchised under the act, subject to which the land is enfranchised, and may specify any place to be agreed upon between the parties as the place of payment of the principal money and interest charged by the certificate, and may by the agreement of the parties and the direction of the commissioners provide that the principal money or any part thereof shall continue upon the security of the certificate for any term not exceeding tea years ; and the lands charged may be described by reference to the enfranchisement under the acts or otherwise as the commissioners may think fit, and the certificate may be in the form set forth in the sche- dule to the present act, or in such other form as the parties, with the consent of the commissioners, may think proper, and shall be entered on the court rolls of the manor {b). The certificate and charge are made transferable by endorsement of the certificate, which may be in the form set forth in the schedule or • to the like effect (c) ; and the certificates and transfers are chargeable with the like stamp duties as other mortgages and transfers (d). Upon the request of the owners of land chargeable with a rent- charge under the acts, the commissioners shall certify, under their hand and seal, the sum of money in consideration of which the rent-charge may be redeemed ; and when it shall appear to them that payment or tender of such consideration money has been duly made, the commis- sioners may certify that the rent-charge has been redeemed under the act, and the certificate shall be final and conclusive. But no redemp- tion under the act shall be effected of rent-charges created before the passing of the act, except with the consent in writing of the persons entitled to the receipt of such rent-charge (e). (a) Sect. 10. (fe) Sect. 12. (c) Sect. 13. (d) Sect. 14. le) Sect. 37. OF SECURITIES UNDER VARIOUS STATUTES, 1077 2008. \V here the person entitled to a rent-cliarge, redeemable under the wiiat amouiasto act, sliall be abs<dutely entitled to or shall be able to dispose of the fee ^^^.s-'deraUon. simple in possession thereof independently of the act, and shall not be a spiritual person entitled in respect of his benefice or cure, or a cor- poration prevented from alicnintjsuch rent-charge otherwise than under the act, a payment or tender to the person so entitled of the sum of money certified by the commissioners as aforesaid, after six months' notice to the person entitled to the rent-charge, shall be deemed a due payment of the consideration money ; and in every other case the pay- ment of the money so certified under the act shall be deemed a due payment of the consideration money (a). 2009. Any occupying tenant of any lands to be enfranchised under the act. Occupying who shall pay any rent-charge or interest whicli may become payable /ed^uct^paymenu under the act, shall be entitled to deduct the amount thereof from the froni r«=nt- rent payable by him to his landlord, and shall be allowed the same in account with his landlord (0). 2010. A surrenderee by way of mortgage, under a surrender entered on Mortpapee may the court rolls, and in the possession or receipt of the profits of the redeem rent- land, shall be deemed a tenant within the act entitled to obtain, or to '^'^^■^ses. join in obtaining and efl'ecting enfranchisements and redeeming a rent- charge under the Copyhold Acts, with the apjjrobation of the commis- sioners ; and any money paid by any mortgagee in respect of the consideration or costs of enfranchisement, or redemption of rent-charge under the Copyhold Acts, shall be added to the amount due to him as mortgagee, and the land shall not be redeemable without payment of such money, with interest thereon (c). 2011. By the Copyhold Acts Amendment Act, 1858 (rf), the consideration charge of corn- er compensation money for commutation or enfranchisement, ])ayable expenses under under the obligation of the Copyhold Acts, may, with the consent of ^'^^°^ i^^"*- the commissioners, be charged on the land commuted or enfranchised. The absolute owner of land conveyed in consideration of or compen- sation for commutation or enfranchisement, may, with the consent of the commissioners, charge upon the land commuted or enfranchised such reasonable sum as in the judgment of the commissioners may be eijuivalent in value to the land conveyed (e). A lord, empowered by the acts to purchase the tenant's interest, has the same right to charge the land purchased, and also the manor and land settled therewith, to the same uses as the tenant has under the act to charge enfran- chisement monies (_/*). Expenses incurred under the acts may be charged on the manor or on the lands commuted or enfranchised, or on both, accordiuij as the obligations to pay may attach ; or expenses payable by the lord may (a) Sect. 38. (d) 21 & 22 Vict. c. 94, s. 21. {b) Sect. 42. (f) Sect. 22. (c) Sect. 43. (/) Sect. 23. 1078 APPENDIX. 2012. Charge of prin- cipal and interest or of periodical payments. be paid out of the compensation or consideration money, or be cliarged on the rent-charge or other consideration or compensation for commu- tation or enfranchisement (a). Any charge in respect of consideration or compensation, or of the purchase-money or of the value of laud conveyed, may, when the parties agree and the commissioners approve, be made for principal and interest, or for a series of periodical payments, which at the termi- nation thereof, at the period specified, shall leave the manor or land discharged (b). Charge of special expenses of raising money, &c. 2013. Certificate of charge in case of disputed title. 2014. Form of certifi- cate of charge. 2015. Effect of certifi- cate and charge belonging to lord with limited interest. When a lord or tenant is authorized by the acts to raise money on charge, or to purchase or convey any land, and charge the principal or purchase-money or the value on a manor or land, the expenses incurred about raising money on charge, or about the purchase, or purchase and conveyance, shall (but as distinct from the general expenses of commutation or enfranchisement) be considered, for all purposes or effects of charging, as part of the principal purchase-money or value to be charged (c). All other charges, in respect of expenses of proceedings under the Copyhold Acts (except expenses of purchase by the lord), shall be for such period as the parties may agree, and the commissioners approve, not exceeding fifteen years, and at such interest as stated in the certificate of charge {d). If by reason of disputes as to title, it shall appear to the commis- sioners to be uncertain upon what person the order to pay costs or expenses should be made, the commissioners may grant to the person entitled to the costs or expenses a certificate of charge on the manor or land in respect of which the costs or expenses were incurred, which shall operate as other certificates of charge under the act (e). Every charge under the act is to be by certificate (the contents and form of which is presented in the act) under the seal of the commis- sioners, countersigned by the person at whose instance the charge is made, and is to specify the nature and object of the charge, and is made transferable by endorsement (_/'). Whenever a lord of limited interest shall be entitled to a certificate of charge in respect of enfranchisement money left chargeable on enfranchised land, the charge shall remain appendant and appurtenant to the manor, but not so as to be incapable of being severed therefrom or affected by the extinction thereof; and the certificate of charge shall state that the lord to whom it is issued has only a limited interest in the charge ; or it may purport to be issued to the lord for the time being of the manor; and either of such statements in the certificate (a) Sect. 24. {b) Sect. 25. (c) Sect. 26. (d) Sect. 27. (e) Sect. 28. (/) Sects. 29, 30. OF SECURITIES UNDER VARIOUS STATUTES. 1079 shall be notice to all persons of the limited interest in the charge which may pass by the transfer of such certificate (a). 2016. Awards of enfranchisement, certificates and transfers of charge stamp uuir*. under the act, are chargeable with the like stamp duties as deeds of enfranchisement, mortgages and transfers of mortgages (i). 2017. Any charge under the act, made in consideration of the value of Priorities oi land conveyed as consideration, or of consideration or compensation ^ "^^'' money, or of purchase-money, or the expenses of purchase and con- veyances, is made a first charge on such manor or land, with j)riority over all incumbrances affecting the same (except tithe commutation rent-charges and charges or rent-charges under the drainage acts), not- withstanding the priority of date or anterior title of such incumbrances ; but any monies already invested, or previously secured or charged thereon, may be continued on the security thereof, notwithstandiug the imposition of the charge under the present act (c). 2018. Any certificate of charge may be taken by the lord, or tenant, or Certiiicates of owner of any land charged thereby, and shall not merge in the free- me7ge."°"° hold unless the owner of the charge shall by endorsement on the cer- tificate of charge, or otherwise, declare in writing that the same shall merge and cease (d) (1410)- 2019 The owner for the time being of a certificate of charge shall, in Remedies of' respect of any payment in the nature of interest or instalment that o«n«" o*" ' J ' -^ ^ certificates of may become due under the certificate, have the same remedies, and charge, become subject to the same conditions in the recovery thereof, as are provided by the copyhold acts (1994) in respect of rent-charges ; and for further remedy in that behalf, and in respect of any payment in the nature of interest, or of a periodical payment, or of an instalment, or of a gross principal sum that may be secured by the certificate, the manor or land shall, from tlie date of the certificate, stand charged with the respective sums mentioned in such certificate to be payable ; and until such payment, the owner for the time being of the certificate shall stand seised of the land as a mortgagee in fee thereof, and the person so seised may, from time to time, adopt such proceedings as a mortgagee in fee of freehold land is entitled to, for enforcing payment of principal or interest, with the like right to obtain payment of all attendant and incident costs and expenses (e). The Copyhold Inclosure and Tithe Commissions were amalgamated Amalgamation of by 14 & 15 Vict. c. o3, amended by 2o k -JO Vict. c. 73. copyhold and •' ' • tithe comrnU- sions. Of the Equitable Jurisdiction of the County Courts over Securities. 2021 By the County Courts Equitable Jurisdiction Act (a) the county jurisdiction of (a) Sect. 31. (d) Sect. 34. lb) Sect. 32. (e) Sect. 35. (c) Sect. 33. (/) 28 & 29 Vict. c. 99, 463, note. County Courts 1080 APPENDIX. in redemption and foreclosure suits. courts shall have and may exercise all the power and authority of the High Court of Chancery, in (amongst other matters), All suits for foreclosure or redemption, or for enforcing any charge or lien, where the mortgage, charge or lien shall not exceed in amount the sum of 500Z. (a). Proceedings under the act which relate to tlie recovery or sale of any mortgage, charge or lien on lands tenements or hereditaments shall be taken in that county court within the district of which the landsj tenements or hereditaments, or any part thereof, are situate (b). Of Mortgages of Infants' Estates for Payment of Debts. 2022. Where in a suit for the payment of debts, to which the heir or de- visee of the deceased debtor may be liable, a court of equity shall decree the estates liable to the debts to be sold or mortgaged for satis- faction thereof, the court may direct mortgages as well as sales to be made of the estates of the infant heir or devisee. And where heredi- taments are devised in settlement by any person whose estate shall be liable for the payment of his debts, and by such devise shall be vested in any person or persons for life, or other limited interest, with any re- mainder, limitation or gift over which may not be vested or may be vested in some person or persons from whom a conveyance or assu- rance cannot be obtained, or by way of executory devise, the court by which any such decree for payment of debts shall be made may direct mortGraiifes as well as sales of the hereditaments so devised in settle- ment, and may authorize them in cases where the tenant for life, or other person having a limited interest, or the first executory devisee, is an infant. And the infant may be compelled to execute a convey- ance (1858). The surplus monies are declared to belong to the same persons Avho would have been owners of the hereditaments sold, if no sale or mortgage had been made {c). The acts do not authorize the court to extend the sum directed by the decree to be raised by mortgage for payment of the debts, for the purpose of repairing the property proposed to be mortgaged, though it was said to be impossible otherwise to raise the money on the es- tate {d). 2023. Persons who may have leave to charge estates with costs of improvements. Of Securities under Improvement Acts. By 8 & 9 Vict. c. 56 (e), any tenant by the curtesy, or for his own or any other life or lives, or for years determinable on life or lives, in- fant by guardian or next friend, or idiot or lunatic by committee, (a) Sect. 1 (3). Whether the court is authorized by the act to establish a lien, which in respect of such liens as may be actively en- forced is a necessary preliminary to the relief, 961 (^ee Att.-Oeti. v. Sit- tingbourne, Sfc. Railway Company, L. R., 1 Eq. 636), query. (b) Sect. 10. {c) 11 Geo. 4 & 1 Will. 4, c. 47, ss. 1 1, 12, as amended and explained by 2 & 3 Vict. c. 60. (d) Hilt v. Maurice, 1 De G. & S. 214. (e) Sect. 3. OF SECURITIES UNDER VARIOUS STATUTES. 1081 married woman entitled for separate nse by next friend, or husband of married woman entitled in her right, or feofiies or trustees for charit- able or other purposes, or ecclesiastical or otiier corporation aggregate or sole, or mortgagee or incumbrancer in fee in possession, or person entitled in fee to any equity of redemption and in possession, are au- thorized to apply to the Court of Chancery for leave to make perma- nent improvements by draining, warjiing, irrigation, or embankment, and to pray that the expenses of the improvements may be a charge upon the inheritance. 2024. After inquiry by the court and certificate made and indorsed accord- Priority and re- ^ J J . , 1 gistration of ing to the act, the inheritance of the land will be charged with the charges. money advanced and expended, with interest for the advance ; and such charge will have priority over other charges except tithe commu- tation rent-charges, and any quit or chief rents incident to tenure : and a memorial of the charge is to be registered where it affects lands in a register county or in Ireland (a). 2026. The certificate is to be filed in the report office, and a signed dupli- Filing and effect of ccrtitic&tc cate thereof is evidence of the title to the money : and the security takes effect as from the granting of the certificate (6). 2026. The money bears interest at a rate agreed upon, not exceeding 5 per Rate of interest. cent. (c). 2027. The principal is repayable by equal annual instalments, not being Mode of re-pay- less than 12 nor more tiian 18, in cases of improvements by drainage, •warping, irrigation or embankment; and not less than 15 nor more than 18 where the improvements are by the erection of buildings {d). 2028. The petitioner, and every succeeding tenant for lite, or person with \Vho liable for . . , ' . 1 • 1 1 » 1 • *i interest, limited interest, is bound to pay interest and instalments during ttie continuance of his title: on the termination of which, by death or otherwise, the inheritance is chargeable with not more than six years arrears of interest then due, and one-half of the last instalment then due, and the interest and instalments thereafter to become due(tf). 2029. By 9 &. 10 Vict. c. 101 (/), any person desirous to improve lands Power to charge ■^ , , , • 1 1 1 ^ r .• lands for drainage by drainage works, and to obtain advances under the act tor executing ^orkshy direc- them, may, as to lands in Great Britain (rj), apply to the Inclosure ^X^lSerT Commissioners, who may, if they shall think fit, direct that the ex- penses of investigating and of inspecting and ascertaining the due ex- ecution of the works, or part of such expenses, shall be a charge upoa (a) Sects. 4,5, G. 20 Vict. c. 9, s. 1), 18, 20, 21, 23, 24. (b) Sect. 7. (s) The act also applies to Ire- ((?) Sect. 8. land, but an abstract of the nume- (ti) Sect. 9. rous Irish improvement acts would (e) Sect. 10. have occupied more space than could (/) Sects. 14, 15, 17, (see 19 & conveniently be spared. M. VOL. II. 4 A 1082 APPENDIX. 2030. Certificates of advance. Security by -way of rent-charge. 2031. Mode (if recovery and priority of rent-charge. 2032. Provision as to Scotch entails. 2033. Effect of charge upon trustee's powers of invest- ment. 2034. Liability of owners of limited interests to pay- the land. In case of the dissent, upon notice by advertisement, of any person liaving an estate in or charge upon the land to which the appli- cation relates, the commissioners shall certify sucli dissent to the owner of the land who makes the application, and who may then apply to the Court of Chancery, or to the (lourt of Session in Scotland, for authority to procure an advance under the act. Upon the execution of the works, the commissioners may issue a certificate of advance, specifying the land in respect of which the ad- vance is to be made, and certifying that the sum therein mentioned should be issued to the person therein named ; whereupon the advance is directed to be made by the Commissioners of the Treasury (a). The land is charged with the payment in respect of the ad- vance of a rent-charge at the rate of GZ. 10s. for every 100/. of such advance ; and so in proportion for any less amount, to be payable for the term of 22 years by equal half-yearly payments {b). Every such rent-charge in England is made recoverable by the commissioners of stamps and taxes in the same manner as rent-charges in lieu of tithes under 6 & 7 Will. 4, c. 71 ; and such rent-charges are to be subsequent in order of charge to tithe rent-charges, and quit or chief rents incident to tenure, but to have priority over other charges on the same land ; and such rent-charges in Scotland are to be re- coverable as feu duty or annual rent or other payment to the crown, but subsequent in order of charge to feu duty, with preference over all other charges on the same land : but the rent-charge is to have no preference unless it be sued for within three years after it becomes payable (c). No proprietor of an entailed estate in Scotland is to be held to have contravened the conditions of entail, by having availed himself of the act ; and no rent-charge on any entailer! lands in Scotland, under the act, is to be a ground of adjudging selling or evicting lands contrary to the provisions and conditions of entail, but is to be an effectual charge upon the entailed lands to every other effect, and upon the rents and profits thereof (rf) (2047)- The charge is not to be deemed such an incumbrance as to preclude a trustee of trust money to be invested on purchase of the land, or on mortgage, from investing in the purchase of or upon mortgage of land charged, unless the terms of the trust shall expressly provide that land so purchased or taken in mortgage shall not be subject to any rent-charge under tlie act (e). Every person on whose application a rent-charge is charged, and every succeeding heir of entail, tenant for life, life renter, or other («) 19 & 20 Vict. c. 9, s. 3, (fc) 9 & 10 Vict. c. 101, s. 3k (c) Sect. 35. (d) Sect. 3G. (e) Sect. 37. OF SECURITIES UNDER VARIOUS STATUTES. 1083 owner of a limited interc?f, sliall, as between liimsclf and tliose in re- mentor rent- niainder or reversion, be bound to pay ii-.ilf-ycarly payijients of tlie rent-charge during the continuance of his interest, and if in actual occupation, or entitled to an apportioned part of the rents to the time of the termination of his interest, shall be bound to pay an apportioned part of that half-yearly ])ayment of rent-charge which shall become due next after the termination of his interest, proportioned to the time between the day of the previous half-yearly payment and the day of such termination (a). The act also provides for the deduction of the rent-charges by tenants or occupiers, and for the apportionment of rent-charges (h). 2035. The owners of lands charged with rent-charges are at liberty, before Owners oi lands 1 i' ' 1 charged mav the expiration of -JO years after the commencement thercot, to redeem redeem rent- such rent-charges or any part thereof, not being less than 10/. per charges. annum, on payment to the commissioners of stamps and taxes in Great Britain of arrears and of the aggregate amount of half-yearly payments not then due, after allowing discount at the rate of 3/. !().«. per cent, per annum in respect of such several future payments; and the Board of Inland Revenue are to deliver to such owners certificates of such redemption (c). 2036. No bond, security, certificate or other instrument under the act is Securities not ' •' ' liable to stamp chargeable with stamp duty (d). duty. The powers conferred by the act are explained and regulated by a subsequent statute ; and by a yet later act further provisions are made for facilitating improvements by drainage (e). 2037. ]jy the Improvement of Land Act, 1SG4(/'), when the commis- ciiar-e by inclo- .„,, ,. ifi'/\i i sure commis- sioners are satisfied that the improvements defined in (^) the act, or sioners under part thereof, have been properly executed, they are to execute a cfn4"^^"^^" charge, under their hands and seal, on the inheritance or fee of the land, or some sufficient jiart thereof, for the sum by the provisional or other sanctioning order expressed to be chargeable in respect of the improvements, or for a proportional part thereof, if only part of them have been executed, together with the interest by the same order ex- pressed, and tiie amount which shall have been paid in respect of the . purchase of adjoining lands, or of any easement or right afl'ecting ad- joining lands, with interest at the like rate {h). (a) Sect. .38. see 11 & 12 Vict. c. 119 ; 13 & 1 1- (6) Sects. 40, 44; and see 19 & Vict. c. 31 ; 14 & 15 Vict. c. 5:5; 20 Vict. c. 9, s. 8. 19 & 20 Vict. c. 9. (r) Sect. 45 ; 19 & 20 Vict, c. 9, (/) 27 & 28 Vict. c. 1 H-." s. 10. ig) See sect. 9. (d) Sect. 47. CO Sect. 49. (e) 10 & 11 Vict. cc. 11.38 ; anil 4 A 2 1084 2038. Charge may in- clude expenses and interest. 2039. Charge created by absolute order by way of rent- charge. 2040. Form of charge in favour of company. Adoption of act by improvement companies. 2041. Absolute order conclusive evi- dence of charge. APPENDIX. The commissioners have power, at the request of the landowner (a), to include io the princii)al money charged the expenses of the applica- tion to the commissioners, or of his contract with any company or person relating to the execution of the improvements; or to the ad- vance of money for their execution ; and may also include interest not exceeding 51. per cent, per annum on all payments forming part of the principal money, from the dates of such payments to that of the absolute order, but so as no interest be allowed on any such pay- ments for more than six years ; provided that the total amount of principal charged on the lands improved shall not exceed that to which the inheritance or fee of the lands improved will be directly benefited by the improvements (Z>). Every charge under the act is to be created by an order called an absolute order, and by way of rent-charge, payable half-yearly, for the terra of years fixed by the sanctioning order; the firet payment to be six months after the time when the works were executed to the satisfaction of the commissioners. The payment for each half-year is to be expressed to be, as to part, a repayment of a certain amount of principal money, and as to the remainder a payment of interest, and is to be stamped as a mortgage for a like amount, and a copy is to be authenticated by the seal of and kept by the commissioners, and such copy and any copy thereof authenticated by their seal shall be evi- dence of the contents and purport of the absolute order (c). The charges are to be according to the form in the schedule, or as near thereto as circumstances will admit {d). Whenever by assignment under the act (e) or otherwise a company shall become entitled to the creation of a charge under the act, the commissioners may create such charge in the form of, and so that it may operate as, an absolute or other corresponding order under the act or acts applying to such company (f). Improvement companies, by notice to the commissioners, may adopt the act, and with the sanction of their shareholders, according to the act, may execute or advance money for improvements under it, al- though not authorized to do so by their own act (ff). The execution of the absolute order by the commissioners is to be conclusive evidence, in all courts, and for all purposes, of the validity of the charge expressed to be made, and no inquiry is to be permitted into the title or estate of the landowner, or the due performance of anything required to be done by the act, or as to any other matter upon which the validity of the charge might, but for this enactment, have depended (h). (a) See definition, sect. 8. (6) Sect. 50. (c) Sect. 51. (rf) Sect. 52. (fi) See sect. 26. (/) Sect. 53. (g) Sect. 54. (h) Sect. 55. OF SECURITIES UNDER VARIOUS STATUTES. 1085 2042. A memorial of the absolute order creating the rent-charge in Eng- chaiKe to be land or Wales is to be registered at tlie office of Land Registry in [and regUtry. Eni,'ltind, and in Ireland in the deed and will registry there, as men- tioned in the act; and ail grants of rent-charges in Scotland are to be registered in the general or particular registry of Sasines. Provided that every rent-charge to which the present clause applies shall have priority, as is declared in the act (a). 2043. Where the costs of any public or general improvements are autho- Costs of Kuiurai ,. rill- 1 improvfimiUh rized to be charged upon the inheritance ot the lands improved, any may be ( iiarged landowner who shall have been assessed and shall have become liable p"ov"d.' '"" for any such charge in respect of his land may apply to the commis- sioners to sanction the charging of the money so assessed upon the land in respect of which the landowner shall have been so assessed, and the commissioners may, after the money shall have been paid by the landowner, charge the same by an absolute order upon the inherit- ance or fee of the land in respect of wliich the assessment was made and paid, or so much thereof as the commissioners will sanction, with interest (i). Such absolute order and charge may be in any form, and for any term permitted by the act, which applies in like manner as if tlie order and charge were made in resjiect of improvements on tlie land exe- cuted under the act ; and the commissioners may charge the land with the costs, charges and expenses of the application and order, or any contract connected therewith, as under sect. 50, respecting works exe- cuted under the act (e). 2044. From the date of the absolute order, the grantee, his executors, ciiarpe i^ from . . ... , ii 1 1 date of absolute administrators, successors and assigns, have a charge upon the lands ^,J^^J for the principal money from time to time undischarged, by payment of the rent-charge with interest at the rate expressed: and with Priority of priority over every other then existing and future charge and incum- '^ "^ ' brance atiecting the lands or estates and interests respectively, whether created under the powers of any act of parliament or otherwise, ex- cept quit rents, crown rents, chief rents, feu duties, ground annuals, and other charges incident to tenure, tithe commutation rent-charges, and teinds, charges under any act authorizing advances of public money for improvement of land, and charges created under this act, or of prior date created under any other existing act authorizing the charo-inij of lands with tlie expense of and incident to their improve- ment. Provided that if part only of the land charged is subject to a mortgage or other incumbrance, the charge created under the act shall have priority only to the extent of a due proportion of such charge, when and so soon as the same shall be ascertained under sec- tion 66 (rf). (a) Sect, 56 ; see sect. 59. (c) Sect. 58. (6) Sect 57. (j) Sect. 59. 1086 2045. Charges to be personalty, but may be merged. Charges made lawful invest- ments for trust monies. 2046. Charges not to preclude trust in- vestments. 2047. Scotch entails. 2048. Interest on arrears. 2049. Assignment of rent-charges. 2050. Liability of owners of limited interests. APPENDIX. Every charge under the act as regards the holder is to be deemed personal property, but every holder may direct by deed that it be reunited to, and merge in, the beneficial interest in the laud as if it were of the same nature and tenure, and all trustees, directors and others, authorized to invest on real security, may invest on such charges or on mortgages thereof, unless the contrary be provided by the instruments directing or authorizing tlie investments (a). No charge made by any absolute order under the act shall be deemed to be such an incumbrance as shall preclude a trustee, with power to invest in the purchase of land or mortgage, from investing it in the purchase or mortgage of land so charged, unless the terms of the trust or power expressly provide that lands to be purchased or taken in exchange be not subject to any prior charge (b). The act contains provisions respecting Scotch entails and the re- covery of the rent-charges corresponding with those in sects. 36 and 35 of 9 & 10 Vict. c. 101 (c) (2032). If any rent-charge be in arrear, the arrear is not to bear interest for more than six months, but interest at the rate of 5Z. per cent, in respect thereof is recoverable in the same manner as the sum in arrear. Pro- vided that, if at the end of six months from the time of any payment falling into arrear, there shall not be on the land charged a sufficient distress to answer the said payment and interest, then the arrears of such payment shall bear interest at 51. per cent, per annum till satisfaction ; and such interest may be recovered in the same manner as the sura in arrear (d). The person entitled to a rent-charge may assign it by a deed duly stamped, and the assignment may be according to the form mentioned in the schedule, or as near as may be, and shall be effectual to vest both at law and in equity the charge thereby assigned, and all powers, authorities, rights and remedies of the assignor, in the assignee, his successors, executors, administrators and assigns, and notice of the assignment is to be sent to the commissioners at their office in Lon- don (e). The act does not provide for the registration of assignments. The act contains provisions for the discharge of the periodical pay- ments of the rent-charge by persons having limited interests, corre- sponding with section 38 of 9 & 10 Vict. c. 101 (2034), with a proviso that no person becoming entitled in possession to any estate or interest in land shall be liable, as between himself and the persons entitled to the rent-charge, to pay any arrears of charge remaining unpaid at the (a) Sect. 60. (//) Sect. 61. (f) Sects. 62, 63. (d) Sect. 64. (e) Sect. 65. OF SECURITIES UNDER VARIOUS STATUTES. 1087 time of his becoming so entilled in possession, beyond tlie amount of two years' payment of sucli charge. And that the amount jjuid by any person in respect of such arrears, and any costs occasioned by non-payment thereof, shall be a debt from the person who in the first instance ought to have paid the same, or from his estate, to the person Mho i)aid the same, and shall be recoverable accordingly (a). 2051. The tenant of the land paying the charge is to be entitled to deduct Tenant paying the amount from his rent, except as to such part thereof as he has agreed di/ut from *" to be charged Mith during his occupation; and where the improve- "^^"'^ ments include other lands, the commissioners may declare in the abso- lute order, what part of the whole charge payable in respect of the improvement shall be payable by such tenant or occupier during his tenancy, in respect of probable improvement of the land included in his tenancy (b). 2052. Subject to certain limitations, the commissioners may release part of commissioners the lands charged, or may apportion the charge on ditierent lands (c). J^^ap'porUcm Every such apportionment or release is to be in the form given in the charge, act, and is to be registered and evidenced as in section 5G (d) ; and such apportioned or released charges are to be recoverable out of the apportioned lands, or lands not released, as original charges under the act(e). 'NVhere lands are charged by more than one absolute order, any order of apportionment or release under the preceding sections may comprise all or any number of the rent-charges existing by virtue of such absolute orders (/*). Of Securities under Inclosure Acts. Odf^'k By an act for consolidating the provisions of inclosure acts, it was Char^-es on and .,,,,, ^ , , ,, , . . , . , mortgapcs of provided ((7) that where the expenses 01 obtainnig and executmg tiie allotments and act are payable by the proprietors of the lands to whom any allotments to secure ex-"*** shall be made, it shall be lawful for the husbands, guardians, trustees, pensesof incio- . „ „ , • . II sure under committees or attornies of any of the owners or proprietors of allot- -JiGeo. 3, c. los. ments or exchanged lands being under disability, and for any of the said owners or proprietors, being tenants in tail, or for life or lives, or years determinable on life or lives, or on any other contingency, or otherwise interested as aforesaid (except the rector or vicar of the parish), to charge such iiUotments or exchanged lands and premises with such sum or sums of money as by the award, or by any writing under the hands of the inclosure commissioners, they shall adjudge necessary to defray the respective shares of the charges incident to and attending the obtaining and executing the act, and of charging the (rt) Sect Gfi. (e) Sect 70. (6) Sect. 67. (/) Sect. 71. \c) Sect. ()8. {g) 41 Geo. 3, c. 109, s. 30 ; and \d) Sect. t)9. The reference in see 6 & 7 Will. 4, c. 115, ss. 45—48. the act is erroneously to sect. 54. 1088 APPENDIX. 2054. Powers under « & 9 Vict. c. 133. land, so that the same shall not e.vceecl 51. for every acre of such allot- ments or exchanged lands; and to mortgage or otherwise subject the hereditaments so to be charged for any term of years ; or in case any person in possession who shall be liable to, and charged with, a share of such expenses, or enabled to charge the land with the same, shall advance and pay the money, the commissioners may mortgage or sub- ject the lands to such person for any term of years for the payment of such monies, with interest to commence on the termination of the right of such person in the premises ; so that every such security be made with a j)roviso to cease and be void, or with an express trust to be sur- rendered or re-assigned when the money thereby to be secured shall be fully satisfied; and with a covenant to keep down the interest, so that no person afterwards becoming possessed of or entitled to any such lands or hereditaments shall be liable to pay arrears of interest for more than six calendar mouths preceding the time when the title to such possession shall have commenced. By another act (a) it is lawful for all persons interested in allotments in severalty, or allotments of stints, or rights of pasture respectively, to be made under the act, being tenants for life or in tail, or for any other estate of freehold or inheritance, and for the husbands, guardians, trustees, committees, or attornies respectively, or persons acting as such of persons under disability, or beyond the seas, and for the trustees or feoffees for charitable, parochial, or other uses, or the majo- rity in number of them, in respect of lands held in trust for such uses, with the consent of the commissioners under their hands and seal, and for the incumbent of any ecclesiastical benefice, Avith the consent in writing of the bishop of the diocese and of the patron of the benefice, from time to time to charge their respective allotments with not more than 61. per acre towards their respective proportions of the inclosure expenses ; and for securing rejjayment, with interest, to mortgage or demise the allotments unto or in trust for any lender for any term of years, but with a condition to cease, or upon trust to be surrendered or assigned, when the money and interest shall have been fully paid, so that in every such mortgage or demise made by or on behalf of any person entitled to any such allotment for life, there be contained a covenant to pay interest during his life; but that no person afterwards becoming possessed shall be subject to more tlian six months' arrears previous to the time when his title shall commence: and every incum- bent of a benefice, by whom such mortgage or demise sliall be made, shall keep down the interest on so much of the principal as shall Repayment of remain owing ; and shall repay, in reduction of principal, one-thirtieth one-thirtieth "f n .r • ■ n 1,1 , ,. r 1 •■ principal yearly, ot the money originally secured, at the end or one year from the date of the mortgage, and a like sum at the end of each succeeding year until the whole be repaid ; and every such mortgagee and his assigns shall have the like remedies in case of non-payment of the monies tliereby secured, as in case of other mortgages of the like nature. (a) 8& 9 Vict. c. 118, s. 133. OF SECURITIES UNDER VARIOUS STATUTES. 1089 2055. "Where (a) any persons shall, under the provisions of the last-mentioned Money to be paid act, mortgage their allotments, or demise the same in trust to raise 'o comraiMioneM. monej' to defray iiiclosure expenses, the money shull be paid to tiie commissioners, whose receipt is made a sufficient discharge to the mort- gagee or lessee ; and the money shall be applied by the commissioners for the purpose for w Iiich it may be raised under the act. Where a sum of money, part of the proceeds of the sale of settled 2056. estates, was paid by the trustees of the settlement (who had power to apply it in discharge of incumbrances affecting the estates) to the tenant for life, and he retained it in payment of exjjenses incurred by him in inclosures ; it was held that though, by reason of his death, the formalities required by the acts of 8 & 9 Vict, and 1 1 &: 12 Vict, could not be complied with, yet as there was considered to be evidence of his intention to charge the money on the allotments, so much of the advance as was properly expended about the inclosure, not exceeding 6/. per acre, were a charge on the allotments (b). 2057. Under another act, inequalities of value of lands exchanged, and of inequaiiuesof ,,. 1 1 1 • 1 1 value may be allotments on partitions, etiected under the inclosure acts, may be com- compensated by pensated by rent-charges where the deficiency in value of any here- rent-charges, ditaments to be compensated does not exceed one-eighth part of the actual value thereof (c). 2058. The amount of the rent-charge is to be fixed by the inclosure award, Amount and or the order of exchange or partition. Every rent-charge is valid and ^"°" yo c a indefeasible against the land charged, subject only to the tithe rent- charge, land-tax, local rates and taxes, quit or chief rents incidental to tenure, and charges created under drainage or improvement acts ; and prior to all other charges, and recoverable as tithe rent-charge under 6 & 7 Will. 4, c. 71 (c/). 2059. Every rent-charge created under the act is to enure to the same Charge to he '', .... , ... , 1 subject to same uses and trusts, and is subject to the same conditions, charges and incidents as lands incumbrances, as the lands in respect of the deficiency in the value ^"ie^nfy" hereof whereof such rent-charge is made payable will stand and be limited, "t is granted. after the confirmation of the inclosure award, or order of exchange or partition, as the case may be (e). OJ' the Dischai-gc of Crown Debts and Lis pendens. Whenever a quietus shall be obtained by a debtor or accountant to 2060. the crown (136. 1479), ""J i"" ofHce copy thereof shall be left witli the senior master of the Court of Common Pleas, together with a certificate (a) 1 1 & 12 Vict. c. 99, s. 8. (c) 20 & 21 Vict. c. 31, ss. 6, 7, 8. lb) Vernon v. Earl Mmncrs, 31 (rf) Sects. 9, 10. Beav. 617 ; 9 Jur., N.S. 9. (e) Sect. 11. 1090 APPENDIX. signed by the accountant-general tliat the same may be registered, the said master shall forthwith enter the same in the said book of debtors and accountants to the crown in alphabetical order by the name of the person whose estate is intended to be discharged by such quietus, with the date ; and shall for any such entry be entitled to a fee of 2s. (jd. (a). 2061. The Commissioners of the Treasury for the time being, or any three of them, may also by writing under their hands, upon payment of such sums of money as they may think fit to require into the Exchequer to be applied in liquidation of the debt or liability of any debtor or ac- countant to the crown, or upon such other terms as they may think proper, certify that any lands, tenements or hereditaments of any such crown debtor or accountant shall be held by the purchaser or mort- gagee, or intended purchaser or mortgagee thereof, his or their heirs, executors, administrators and assigns, wholly exonerated and discharged from all further claims of the crown in respect of any debt, claim or liability present or future of the debtor or accountant to whom such lands, tenements or hereditaments belonged, or in cases of leases for fines to certify that the lessees, their heirs, executors, administrators and assigns, shall hold so exonerated and discharged without pre- judice to the rights and remedies of the crown against the reversion of the lands, tenements or hereditaments comprised in any such leases, and the rents and covenants reserved and contained by and in the same, and thereupon the same lands, tenements or heredita- ments shall respectively be held accordingly wholly exonerated and discharged as aforesaid, but in cases of leases without prejudice as aforesaid {l>). Provided that any such certificate, or the discharge of any such lands, tenements or other hereditaments by virtue of this act, shall in nowise impeach, lessen or afiect the right of the crown to levy the whole of any debt or demand which may at any time be due from any such debtor or accountant to the crown out of or from any other lands, tenements or hereditaments which would have been liable thereto in case no such certificate had been granted and no such discharge had been obtained (c). 2062. Power to redeem mortgages. Of liedemjition by the Promoters of Undertakings under the Lands Clauses Consolidation Act, 1845. The Lands Clauses Consolidation Act provides that {d), — The promotei's of the undertaking may purchase or redeem the in- terest of the mortgagee of any lands which may be required for the purposes of the special act, whether they shall have previously pur- chased the equity of redemption or not, and whether the mortgagee shall be entitled in his own right or in trust ; and whether he be in possession by virtue of the mortgage or not, and whether the mortgage (a) 2 & 3 Vict. c. 11, s. 9. (ft) Sect. 10. (c) Sect. 11. (rf) S & 9 Vict. c. IS, s. 108. OF SECUniTIES UNDEU VAlilOUS STATUTES. lOUl affect the lands solely or jointly with any other lauds not required for the purposes of the sj)ueial act. And in order thereto, the j)romoters may pay or tender to the mort- gagee the principal and interest due, together with his costs and charges, if any, and six months additional interest; and thereupon the mortgagee shall immediately convey his interest in the lands comprised in the mortgage to the promoters, or as tliey shall direct, or the pro- moters may give notice in writing to the mortgagee that they will pay off the principal and interest due on the mortgage at the end of six months computed from the day of giving the notice; and if they shall have given any such notice, or if the party entitled to the equity of redemi)tion of any such lands shall have given six months notice of his intention to redeem, then at the expiration of either of such notices, or at any intermediate period, upon payment or tender by the pro- moters to the mortgagee of the principal money due, and the interest which would become due at the end of six months from the time of giving either of such notices, together with his costs and expenses, if any, the mortgagee shall convey or release his interest in the lands comprised in the mortgage to the promoters, or as they shall direct. 2063. If, on such payment or tender, any mortgagee shall fail to convey Deposit of mort- or release his interest in the mortgage as directed by the promoters, or non-coln'ej-ante shall fail to deduce a good title to their satisfaction, the promoters may i>y mortgagee, deposit in the bank the principal, interest and costs if any due on the mortgage, and also if payment be made before the expiration of six months' notice, such further interest as would at that time become due, and they may execute a deed poll, duly stamped in the manner pro- vided by the act in the case of the purchase of lands by them, and thereupon, as well as upon such conveyance by the mortgagee if any such be made, all the estate and interest of the mortgagee and of his trustees and cestuis que trust shall vest in the promoters, and they shall be entitled to immediate possession if the mortgagee were himself en- titled to possession (a). 2064. If the mortgaged lands are of less value than the principal, interest Compensation and costs, the value or compensation shall be settled between the mort- Ts o"Lrs'\''aYa'e gagee and the owners of the cipiity of redemption on the one part and ^''*» <*'='''• the promoters of tlie undertaking on the other part, and if they cannot agree the same shall be determined as in other cases of disputed compen- sation ; and the amount of the value or compensation shall be paid by the promoters to the mortgagee in satisfaction pro tanto of the mort- gage debt ; and upon ])ayment or tender tlie mortgagee shall convey or release all his interest to tlie promoters of the undertaking or as they shall direct {b). 2065. It upon such payment or tender any mortgagee shall fail to convey, Deposit m bank or adduce a good title, the promoters may deposit the amount of the vi'ya"nce.° ''°°' (a) Sect. loy. (b) Sect. 110. 1092 APPENDIX. 2066. ■Where only part of land required •which is of less value than debt. 2067. Deposit in bank upon non-con- veyance. value or compensation in the bank, and every payment or deposit shall be accepted by the mortgagee in satisfaction of the debt pro tanto, and shall be a full discharge of the land from all money due thereon ; and the promoters may execute a deed poll in the manner provided in the case of purchase; and tliereupon the estate and interest in the lands of the mortgagee or his trustee sliall become absolutely vested in the proniotersj and they shall be entitled to immediate possession if the mortgagee were so entitled ; but all rights and remedies possessed by the mortgagee against the mortgagor by virtue of any bond, covenant or obligation, other than the right to such lands, shall remain in force in respect of so much of the mortgage debt as shall not have been satis- fied by such payment or deposit (a). If part only of the mortgaged lands be required, and the part required be of less value than the principal, interest and costs, and the mortgagee shall not consider the residue of the lands sufficient security for the money charged thereon, or shall not be willing to release the part re- quired, the value of such part, and also the compensation to be paid in respect of severance or otherwise, shall be settled by agreement between the mortgagee and the owner of the equitj' of redemption, and the promoters of the undertaking ; and if the parties fail to agree shall be determined as in other cases of disputed compensation, and the amount shall be paid to the mortgagee in satisfaction of the mortgage debt pro tanto, and thereupon the mortgagee shall convej' or release all interest in the mortgaged lands, the value whereof shall have been so paid, and a memorandum shall be indorsed on the deed creating the mortgage, and slial] be signed by the mortgagee, and a copy of the memorandum shall, if required, be furnislied by the promoters at their expense to the party entitled to the equity of redemption of the lands comprised in the mortgage deed {b). If upon payment or tender to the mortgagee of the value or com- pensation, the mortgagee shall fail to convey or release to the pro- moters his interest in the lands in respect of which compensation shall Lave been jjaid or tendered, or shall fail to adduce a good title, the pro- moters may pay the amount into the bank, and the amount so paid shall be accepted by the mortgagee in satisfaction of the debt pro tanto, and shall be in full discharge of the portion of the mortgaged lands required ; and on execution by the promoters of a deed poll duly stamped, the lands shall become absolutely vested in them as to the estate and interest of the mortgagee, or any person in trust for him ; and they shall be entitled to immediate possession if such mortgagee were so entitled ; but the mortgagee shall have the same powers and remedies for recovering or compelling payment of the mortgage money, , or the residue thereof and the interest thereof, upon and out of the residue of the mortgaged lands or the portion not required for the pur- (a) Sect. 111. (b) Sect. 112. OF SECURITIES UNDER VARIOUS STATUTES. 1093 poses of tin; special act, as lio would have had out of the whole of the lands originally comprised iu mortgage (a). 2068. If the mortgac^ee shall have been required to accept payment of the Where mortgagee whole or part of his mortgage money at a time earlier than that cep"'payiiient limited by the deed, the jjronioters of the undertaking shall pay him, l^efore time in addition to the sum which shall have been paid off, all sucii costs and expenses (to be taxed in case of difference and payment enforced according to the act) as shall be incurred by the mortgagee in respect of or which shall be incidental to the re-investment of the sum paid off, the costs in case of difference to be taxed and payment enforced iu the manner provided with respect to the costs of conveyances ; and the mortgagee is entitled to compensation for any loss to be sustained by him by reason of the premature discharge of his mortgage debt, if the rate of interest secured by the mortgatje be higher than at the time of repayment can reasonably be exfiected to be had upon re-invest- ment, regard being had to the then current rate of interest ; until pay- ment or tender of which compensation, the promoters of the under- taking are not, as against the mortgagee, to be entitled to possession (i). 2069. As to lands charged with rent service, rent-charge, or chief or other Settlement of , . , 1 p • 1 1 p disputed corn- rent or other payment or incumbrance not before provided tor; pensation. ^ny difference between the promoters and the party entitled to a charge on the lands required as to the consideration to be paid for the release of the lauds therefrom, or from the portion affecting the lands required for the purposes of the special act, is to be determined as in other cases of disputed compensation (c). 2070. If part only of the lands charged with the rent or incumbrance be Apportionment required for the purposes of the act, an apportionment of the charge may be settled by agreement between the owner of the charge and the owner of the lands and promoters ; and if the apportionment be not settled by agreement the same may be settled by two justices; but if the remaining part of the lands so jointly subject be a sufficient secu- rity for the charge, then, with the consent of the owner of the lands so jointly subject, the party entitled to the charge may release the lands required on condition or in consideration of the other lands remaining exclusively subject to the whole charge ((/). 2071. On payment or tender of the compensation so agreed or determined Deposit in bank to the owner of the charge, such owner shall execute a release of the veyance"'*^""" charge, and if he fail to do so, or to adduce a good title to the charge, the promoters may depo^it the amount of compensation in tlie bank, and may execute a deed poll, duly stamped in the manner provided in the case of purchases, and thereupon the rent service, rent-charge, (a) Sect. 113. (c) Sect. 115. lb) Sect. 114. {d) Sect. 116. 1094 APPENDIX. 2072. Where land re- leased was sub- ject jointly with other lands. cliief or other rent, payment or incumbrance, or the portion thereof in respect whereof compensation shall have been paid, shall cease and be extinguished («). If any such lands be so released from any charge or incumbrance, or portion thereof, to wliich they were subject jointly with other lands, such last-mentioned lands shall alone be charged with the whole of such charge, or with the remainder thereof, as the case may be ; and the party entitled to the charge shall have the same rights and reme- dies over the last-mentioned lands for the whole, or for the remainder of the charge, as the case may be, as he had previously over the whole of the lands subject to the charge; and if upon such charge or portion of charge being so released, the deed or instrument creating or trans- ferring such charge be tendered to the promoters of the undertaking for the purpose, they or two of them shall subscribe, or, if they are a corporation, affix their common seal to a memorandum of such release endorsed upon such deed or instrument, declaring what part of the lands originally subject to such charge shall have been purchased by virtue of the special act ; and if the lands be released from part of such charge, what proportion of such charge shall have been released, and how much thereof continues payable ; or if the lands required shall have been released from the whole of such charge, then that the remain- ing lands are to remain exclusivelj' charged therewith ; and such memorandum shall be made and executed at the expense of the pro- moters, and shall be evidence of the facts therein stated, but not so as to exclude any other evidence of tlie same facts (Z»). Of Securities under the Land Tax Redemption Acts. 2073 Persons with' ^Y t^^e Land Tax Redemption Act(e), for the purpose of redeeming limited interests j^nJ tax charired on hereditaments belonginpr to any persons not being may mortRaRe » .,.,,. f> i bodies politic or corporate, or companies, leoiiees or trustees tor cha- ritable or other public purposes (2077)j the persons in possession or beneficially entitled to the rents, but not having the absolute estate or interest in the property (except tenants at rack rent and crown tenants of the duchy of Lancaster or Cornwall), are empowered to mortgage the lands in fee or for a term, where they are not copyhold or of cus- tomary tenure, or to grant rent-charges to secure money raised for the redemption of the land tax (d). or grant rent charges for re- demption of land tax. Similar powers are given to committees and curators of lunatics or 2074. Trustees and others may create jJiots, and to all executors and administrators, curators or trustees securities having authority to act for infants, minors, issue unborn, femes covert, or other incapacitated persons (^). (a) Sect. 117. {bj Sect. 118, (c) 42 Geo. 3, c. IIG. (d) Sect. 51. (e) Sect. 53. OF SECURITIES UNDER VARIOUS STATUTES. 1095 2075. Tlie securities arc to be made under the autliority and witii tlie con- securities lo be sent and approbation of the cunmiissioners of the Treasury, or any commufio'lferi of three or more of them, certified by their signing and sealing the instru- Treasury, raent (a). 2076. Where the consideration money for the security does not exceed No stamp duty •^ 1/7 where considera- 1,000/., the security is not hable to any stamp duty (o). tion does not exceed 1 1,000. Like powers of sale, mortsajje and {^ranting rent-charges are given *U77. *^ ., e p n- 1- I'owcrs to corpo- to bodies politic or corporate, companies and trustees or leoitees lor rations, &c. charitable or other public purposes (c). Of Securities according to the Municipal Corjwration Acts. 2078 By the Municipal Corporations Act ((/), the councils of bodies cor- Municipal rorpo- , , , , • 1 /> 11- rations can only porate, elected under the act, are restrained from mortgage and aliena- mortfjaBc with tion of the lands, tenements or hereditaments of the corporation, except xreasury. with the consent of the lords commissioners of the Treasury, and after such notice as is required by the act. And by the Municipal Corpora- tions Mortgages Act, 18G0 {c), in any case where the commissioners of the Treasury approve of any mortgage of any hereditaments of the body corporate of any borough, they maj', as a condition of their approval, Who may require require that the money borrowed on the security of such mortgage ^"^^ o'f"repay° shall be repaid, with all interest thereon, in thirty years, or any less ""^"'• period, and either by instalments or by means of a sinking fund, or botii, as the commissioners may think fit; and in every such case, the Nature of se- sums required for providing the repayment of the principal and interest of the money borrowed become charged, by virtue of the act, upon the hereditaments comprised in such mortgage (without prejudice to the security thereby created), or any other hereditaments (if any) of the body corporate, or the borough fund, or the borough or other rates, legally applicable for the payment or discharge of the money borrowed, or the expenses which it may be borrowed to defray, or on all or any of the securities aforesaid, as the said commissioners may direct. 2079. "When money so borrowed is directed to be paid by a sinking fund, Disciiargeby the council of the borough are directed (/), out of the rents of the here- "u"d"*° ^'" ' ° ditaments, or out of the borough fund, or rates on which the sums required for the sinking fund are charged under the act, to invest such sums, at such times, and in such government annuities, as the commis- sioners may direct ; and in like manner to invest and accumulate the dividends ; and the annuities purchased are to be placed to the account of the corporation in the matter of the act, and the dividends to be paid to such person as the council shall ajtpoint, and to be invested ; but the annuities are not to be sold or transferred without the consent, in writing, of the commissioners of the Treasury. (a) Sect. 54 ; 1 & 2 Vict. c. 58. {d) 5 & 6 Will. 4, c. 7(>, s. 94. \h) 42 Geo. 3. c. IHi, s. (iS. (e) 23 Vict. c. IC, s. 1. (c) Sects. 69, 7ti. (/) Sect. 2. 1096 APPENDIX. Powers of Treasury as to in- vestments for sinking fund. 2080. Provision for discharge of old debts. "Where, before the passing of the act, the commissioners of the Trea- sury have approved of any mortgage of the corporation property, and have required a sinking fund to be formed in the names of trustees, the commissioners are empowered (a) to require tlie securities in which investments have been already made, to be transferred into the name of the corporation, in the matter of tlie act, or to require any money applicable for the purposes of the sinking fund to be invested in the purchase of government annuities in the name of the corporation, in the matter of the act. For the discharge of mortgage debts incurred before the passing of the act, and for which there was no legal provision, corporations are empowered (b) to submit to the lords of the Treasury any scheme for the discharge of such debts by instalments, or by a sinking fund, or by both, extending over any term of years ; and if the commissioners approve of such scheme, the sums required are charged, by virtue of the act, upon the hereditaments of the corporation, the borough fund or rates, or any other rates applicable to the discharge of such debts, or on any of the said securities, as the commissioners may approve and direct ; and the above provisions, applicable to the repayment of money borrowed on mortgage by a sinking fund and instalments, or both, except the limitation to a period of thirty years, are made applicable to the provision for the discharge of a mortgage debt under this sec- tion : provided that notice of the application to the commissioners for the approval of the scheme be given, and a copy of the memorial to be sent be open to inspection, as in cases of application to the commis- sioners for their approval of a disposition of hereditaments. Of Securities under the Public Works and Fisheries Acts. 2081. By a long series of statutes commencing with 57 Geo. 3, c. 34, and all of which are referred to in 29 & 30 Vict. c. 72, the commissioners of the Treasury are authorized to make advances of public money for various useful public works and purposes, taking securities for the repayment thereof upon the works, and the tolls and other proceeds derived therefrom. The last statute of the series is 30 Vict. c. 32. 2082. Interpretation. Of Securities by Bailway Companies. By the Railway Companies Securities Act, 1866(e) — The t'trm "railway" includes a tramway autliorized by act of par- liament incorporating the Companies Clauses Consolidation Act, 1845. ** Railway company" includes every company authorized by act of parliament to raise any loan capital for the construction or working: of a railway, or for any other purpose connected with the conveyance by such company of traffic on a railway, either alone or in conjunction with other purposes. (a) Sect. 6. {b) Sect. 10. (c) 29 & soviet, c. 108, s. 1. OF SECURITIES UNDER VARIOUS STATUTES. 1097 Tlic term "act of parliament" includes a certificate of the Board of Trade under any act of i)arlianient(«). 2083. Every railway company is to rec^iater and keep registered at the Repistration of office of the Registrar of Joint-Stock Companies in England, the name "eVed officer. *" of their secretary, accountant, treasurer or chief cashier for the time being authorized by them to sign instruments under the act ; or if they tiiink fit the names of two or more such officers of the company so authorized, such officers or any one of them to be called the regis- tered officer (Z*). 2084. Within fourteen days after the end of each half-year (which is fixed ^^f^-^^^^l\l^^- by the act), the company is to make an account of its loan capital capital to be authorized to be and actually raised to the end of that half-year, spe- cifying the particulars described in part 1 of the first schedule (e) (2091), the board of trade being empowered to prescribe the form of the account ((/). 2085. The loan capital half-yearly account may be perused at all reason- Accounts maybe able times, by any shareholder, stockholder, mortgagee, bond creditor, '""P^'-*^ • or holder of debenture stock, or any person interested in any mort- gage, bond or debenture stock of the company (e). 2086. A copv of the loan caijital half-yearly account, certified and signed Copy of loan . ,T. . . 1 -'i-ii -i. X- ■ • i ca|)ital account by the registered officer, is to be deposited with tlie registrar ot joint- to be registered, stock companies in England, within twenty-one days after the end of each half-year, and the company is at liberty to deposit like copies with the registrar of joint-stock companies in Scotland, and with the assistant-reiristrars of joint-stock companies in Ireland (/). 2087. It is unlawful for any railway company to borrow any money on ^[.^'g^™^^'^^" *"* mortgage or boud, or to issue any debenture stock under any act of raising loan, the session, or passed after the end of the half-year to which their then last registered loan capital half-yearly account relates, unless and until they have first deposited with the registrar of joint-stock com- ]ianies in England, a certified and signed statement specifying the particulars described in part 2 of the first schedule (2092), and the form of which account may be prescribed by the Board of Trade ; and copies of which may also be deposited in Scotland and Ire- land (</). 2088. Penalties are enacted against the company for breaches of the above Penalties, regulations; and a general power is given to inspect the documents kept by the registrar or assistant-registrar under the act(/i). (a) Sect. 2. (e) Sect. 7. (b) Sect. 3. (/) Sects. 8.9. (c) Sects. 4, 5. (g) Sect. 10. (rf) Sect. 6. Co Sects. 11, 12. M. VOL. II. -i ii 1098 2089. Declaration to he placed on mort- gages and bonds. 2090. Nothing to airect liabilities of com- pany, &c. 2091. Particulars of loan capital. APPENDIX. A declaration in the form or to the effect mentioned in the 2nd scliedule to the act (2093) is to be phiced on every mortgage deed or bond given after the 21st January, 18G7, by a railway company for securinfj money borrowed by the company, and on every certificate given alter that day by a railway company tor every sum of debenture stock issued by the company ; the declaration being signed by two directors specially authorized, and appointed by the board of directors to sign such declarations, and by the company's registered officer (a). And penalties are enacted against the breach of this regulation, and in case of the signature by any director or registered officer signing any declaration, account or statement under the act, knowing the same to be false in any particular; or being otherwise guilty of any offence against the act {b). Nothing in the act, or in any account, statement or declaration under it, affects in any action or suit any question respecting any loan, debt, liability, mortgage, bond or debenture stock, as between a rail- way company or any director or officer of a railway company on the one side, and any person or class of persons on the other side (c). And an account, statement or declaration under the act is not admissible as evidence in favour of a railway company of the truth of any matter therein stated (d). The particulars required to be specified in the half-yearly account under section 5 (2084), are— (1.) The statutes under the powers of which the company have contracted any mortgage or bond debt, existing at the end of the half-year, or have issued any debenture stock then existing, or under which any then existing mortgage or bond debt or debenture stock has been confirmed, or under which they have any subsisting power to contract any mortgage or bond debt, or to issue any debenture stock, either on fulfil- ment of any condition or otherwise. (2.) The amounts of the mortgage or bond debt or debenture stock thereby authorized or confirmed. (3.) Whether or not by any such act or acts the obtaining the cer- tificate of a justice or sheriff for any purpose, or the ob- taining the assent of a meeting of the company, has been made a condition precedent to the exercise of the power thereby conferred, of borrowing on mortgage or bond, or of creatine' and issuinjj debenture stock. (4.) The date at which such condition has been fulfilled. (5.^ The amount or aggregate amount under the powers of such act or acts actually borrowed up to the end of the half-year, on mortgage or bond (distinguishing them), and then being («) Sect. 14. (6) Sects. 15, 16, 17. (e) Sect. 18. Id) Sect, 19. OF SECUIJITIES UNDER VARIOUS STATUTES. 1099 an existing: debt, and of debenture stock actually issued up to tlmt time and then existing. (C.) The amount or aiifgregate amount remaining to be borrowed. The second and every subsequent half-yearly account to show also, (7.) The items described in paragraphs (-2) and (o) of this part of tile j)resent schedule for two consecutive half-years, and the increase or decrease of any of those items in the second of those half-years as compared with the first (a). 2092. The particulars to be stated as to the new borrowing powers (2087) Particulars of new borrowing are — powers. (1.) The act of parliament conferring the power to borrow on mort- gage or bond, or to issue debenture stock, either on fulfilment of any condition or otherwise. (2.) The amount of mortgage or bond debt or debenture stock thereby authorized. (3.) Whether or not by such act the obtaining a certificate of a justice or sheriff for any purpose, or tiie obtaining of the assent of a meeting of the company, has been made a condi- tion precedent to the exercise of the power thereby conferred of borrowing on mortgage or bond, or of creating and issu- ing debenture stock. (4.) The date at which such condition has been fulfilled (b). 2093. The declaration to be placed on mortgage deeds and bonds (2089) Deciacation. (each officer who signs declaring for himself) declares that the deed or bond is issued under the borrowing powers of the company as regis- tered on the day of , and is not in excess of the amount there stated as remaining to be borrowed ; with the necessary varia- tions. Of Securities under the Turnpike Acts. AOC\c\ By the general turnpike act (c), the trustees or commissioners of Borrowing any turnpike road are authorized to borrow money at interest on the credit of the tolls arising on such road, and to demise and mortgage, iu the form given in the act, the tolls on such roads or any part or parts thereof, and the turnpikes and toll-houses for collecting the same (the costs and charges of which mortgages are to be paid out of the tolls), as a security to any person or persons, or their trustees, who shall ad- vance such money. Copies of all such mortgages are to be entered by the clerk or treasurer to the trustees or commissioners, in books which are to be open for inspection. 2095. Any mortgagee or person entitled to the money secured may assign Transior of or transfer his interest in the mortgage, and the principal and interest ^'^'^"" ^' {a) First Sched., Part I. (c) 3 Geo. % c. 126, s. 81. \b) First Sched., Fart II. 4 B 2 1100 APPENDIX. therebj' secured, by a transfer in tlio form contained in tlie act, and to be indorsed on or annexed to tlie mortgage. The transfer is to be produced and notified to the clerk or treasurer of the trustees or commissioners, within two calendar months next after the day of the date thereof; who is to enter tlie same in the books on payment of a fee, and the transfer will then (and by force of the word "then" the entry of the transfer is essential to its va- lidity (a) ) entitle the assignee to the full benefit of the security. Every assignee may assign the security, and none but the last assignee may release or discharge it ; and all mortgagees or transferees in pro- portion to the sums secured become creditors on the tolls, toll-gates and houses, in equal degree one with another, or in such order as shall be agreed upon or stipulated by the trustees or commissioners at the time of the advances. 2096. Effect of se- curity. 2097. Trustees not Ijcrsonally liable. The statutory mortgage conveys to the mortgagee such proportion of the tolls arising and to arise on the turnpike road and the gates and toll-houses erected or to be erected for collecting the same as the sum advanced bears to the whole sum then or thereafter to become due on the security of the toll-gates and toll-houses. The whole legal estate therefore does not pass by the first mortgage of a proportion of the turnpikes, toll-houses, &c. Any mortgagee may sue in ejectment, and the mortgagors are estopped from setting up a mortgage of earlier date against Iiim ; but on obtaining possession he holds for the benefit of all the other mortgagees as well as for him- self (^). And where, after a mortgage under the general act, a further mortgage was made under a subsequent act for the purposes of a new branch road, subject to a provision that the monies due on the credit of the former tolls should have preference and priority of charge and pay- ment, before the advances for the branch road ; it was held, that, not- withstanding this provision, the legal estate passed to the subsequent mortgagee, who could recover in ejectment, but with a liability to account with the mortgagees according to tlie rights as prescribed by the acts (c). The security gives the mortgagee no legal right to demand principal or interest : the commissioners are merely trustees for the mortgagees for the application of the monies in the order directed by the act. The trustees cannot therefore be compelled by mandamus to pay the interest (J ) (704). The trustees or commissioners of any turnpike road are declared not to be personally liable for the payment of any money by reason of their having signed or executed any mortgage, or asignraent by way of mort- (a) Doe d. Jones v. Jones, 5 Ex. 16. (6) Doe d. Banks v. Booth, 2 Bos. & P. 219; Doe (1. Jiaiton v. Pen/old, 3 Gale & I). 235 ; 3 Q. B. 7-57 ; 6 Jur. 'J48 ; Doe d. Levi v. Home, 7 Jur. (c) Doe d. Thompson v. Lediard, 4 B. & Ad. 137. {d) See Pardoe v. Price, 11 M. & W. 427 ; The Queen v. The Trustees of the Dalhy and Worksop Turnpike- road, Tl L. J., Q. B. 164; and see Crewe v. Edleston, 3 Jur., N. S. 128. OF SECURITIES I'XDER VARIOrS STATUTES. 1 101 gage or other security, in pursuance of any turnpike road act. And the costs, charges and expenses of defending any proceeding against any sucli trustee or commissioner, for anything done in pursuance of the general or any turnpike act, orwiiich he sinill incur in consefpience of such proceeding, are to be defrayed out of the tolls of the road for which he shall act (a). 2098. If any lands, tenements or hereditaments which shall be purchased Pi!'cha^^'c of in- „ , „ „ ,. ... ., cumbered lands for the purposes of any act for making or maintaining turnpike roads, purchased, shall be in mortgage, the trustees are required to pay to the mort- gagee such monies as shall be agreed for, ascertained and determined for the purchase of such hereditaments or a competent part thereof; and such monies when so paid shall be deemed to be in disciiarge of the principal money or part thereof due on such mortgage ; and an acknow- ledgment of the receipt thereof shall be made by endorsement on the mortgage deed, and signed by the mortgagee, his e.vecutors, adminis- trators or assigns, and attested, and shall be a full discharge to the trustees and also to the mortgagor for the money expressed in such endorsement (Z»). 2099. All books kept for registering mortgages and assignments, and all Trustees' books entries therein, and all books containing the accounts and proceedings of the trustees in the execution of any local turnpike act kept accord- ing to the provisions of any such act, or of the act of 3 Geo. 4, c. ]'26, or the present act, and made evidence thereby, shall be admitted in evidence in all courts, and by all judges, justices and others, without proving the facts therein contained, unless such facts or any of them shall be first controverted, notwithstanding the repeal of any former act under the provisions of which such books may have been originally kept. The books are to be kept by the clerk, and are to be open without fee to the inspection of the trustees and of creditors, who may take copies or extracts (c). \ 2100. Where at the time of the expiration or repeal of any turnpike act, Loans under new , 1 , -1 1 1 111 • • p acts to be subject any monies borrowed, subscribed or advanced under the provisions ot to unpaid loans the act, shall be due on the credit of the tolls, the term and tolls to be ", pelled'aas.'* °' granted by every sub>equent act for maintaining the road, are made subject to the repayment of the monies which shall remain due on the credit of such tolls, and of the interest thereof, as effectually as if the monies had been borrowed or became due on the credit or security of the tolls to be granted by such subsequent acts: and every person who may owe or be subject to the payment of any sum of money to the trustees for carrying any such former act into execution shall be liable to the payment thereof to the trustees for executing any such subse- quent act or acts ; and such monies shall be applied by them to the purposes of such subsequent act or acts(c?). (a) 4 Geo. 4, c. 95,s. 61 ; and see (6) 7 & 8 Geo. 4, c. 24, s. 7. 7 & 8 Geo. 4, c. 24, ss. 2, 3 ; and (c) 9 Geo. 4, c. 77, s. 2. Parrett v. Eyre, 10 Bing. 283. {d) Sect. 10. 1102 2101. Securities avail- able after repeal or expiration of act. 2102. Cancellation of old and grant of new securities. 2103. Loss or destruc- tion of securities. 2104. How mortgagee to obtain posses- sion. 2105. ^lortgagee to account. APPENDIX. Contracts and securities entered into with the trustees for carrying any local turnpike act into execution, or by any otiier persons on behalf of the trustees, according to the provisions of the acts, shall remain in force notwithstanding the expiration or repeal of the act, and shall be available until the same are fully satisfied and performed (a). The trustees appointed by virtue of any local turnpike act may receive and cancel all or any of the mortgages granted under the trusts of any former act for the same road or any part thereof, and in lieu thereof give another mortgage, or other mortgages, at the expense of the parties requiring the same (b). Where it shall appear by the books of the trust, or by any satisfac- tory evidence adduced at any meeting of trustees, that any person or persons is or are a creditor or creditors on security of the tolls autho- rized by any local act to be taken, and that the mortgage or assign- ment of the tolls for securing any such sura or sums has been lost, mis- laid or by accident destroyed, the trustees or any three or more of them may execute, at the expense of the person applying for the same, an assignment of the tolls granted by any such local act for the monies mentioned in such original assignment or transfer (c). Any mortgagee of any tolls, toll-gates, bars, chains, toll-houses and buildings on any turnpike road, who seeks to obtain the possession thereof in order to obtain payment of the principal money and interest due, or any part thereof, may, without uniting the other mortgage^, obtain such possession ; but shall not apply the tolls Avhich may con- sequently be received by hiin to his own exclusive use and benefit, but to the use and benefit of all the mortgagees, pari passu, and in propor- tion to the several sums which may be due to them as such mort- gagees (d). The terms of this provision do not warrant the proposition, that a mortgagee who brings ejectment has no title till he gets into possession ; and it has been held(e), that if after ejectment properly brought, another mortgagee also commences ejectment and obtains judgment by default, the judgment is no bar to a verdict for the plain- tiff in the first ejectment. Every mortgagee in possession of any toll-gate or bar erected on any turnpike road, or of any lands or tenements the rents and profits whereof are a])propriated to the repairs of any part of any turnpike road, shall, within twenty-one days after receiving notice in writing from the trustees or commissioners of such road, render an exact account in writing to such trustees or commissioners, or to such person as they shall appoint, of all monies received at such gate or bar or otherwise, and of the mortgagee's expenditure in keeping or repairing (a) Sect. 11. (b) Sect. 12. (c) Sect. 13. (d) 3 Geo. 4, 126, s. 49. (e) Doe d. Butt v. Rous, 17 Jur. 502. OF SECURITIES UNDEIl VAItlOUS STATUTES. 1 IQ.'i the same, under a penalty of 50Z. (to be ajjplied to the use of the road), for every refusal, neglect or omission to render such account (a). 2106. Any mortgagee who shall keep possession of any toll-gate or bar, iioidini,' o^er and receive the tolls or duties thereat, or any such rents and profits, """ P"y""^'"- after being fully satisfied the mortgage debt, interest and costs, shall forfeit as a pi-nalty, to the trustees or commissioners, double the money received in excess, with treble costs of suit; such money when reco- vered to be applied to the use of the road {b). 2107 Mortgagees in possession of any toll-gate or bar, set up on any Mort^'agee may turnpike road, are authorized to let the tolls of such gate or bar as may ''-'"°"''- be done by the trustees or commissioners of a turnpike road, and with the like powers as may be exercised by them ; and contracts for farm- ing or letting tolls, signed by such mortgagees, are made as valid as like contracts signed by the trustees or commissioners {c). 2108. The clerk, to the trustees or commissioners is not required (d) to send •'^i"*' "end state- statements of the affairs of the road to the secretary of state in respect o/state/ of any period during which the tolls of the road are received by any niortsafjee. But every mortgagee in possession of any toll-gate or bar is di- rected (e), under a penalty in case of neglect, to transmit on or before the 25th day of March in every year to one of the principal secreta- ries of state an annual statement of the revenue of the road received by such inortgagei', during the year ending the 31st day of December then preceding, and of the expenditure or application thereof, in the form contained in the schedule to the act 3 & 4 Will. 4, c. 80; or as near thereto as circumstances will admit. 2109. Where any mortgage of the tolls of any turnpike road shall be wiu-n niortt;agee made under the powers of any act, ])a5sed or to be passed after possession'.^ the session of parliament of 1850, (other than an act continuing the term of any existing act,) no holder of such mortgage shall be en- titled to enter into possession of all or any of the toll-gates, bars, chains, toll-houses or buildings upon such road, in case and so long as the interest on the mortgage debt thereby secured, up to the last half-yearly or other day on which such interest is payable, be paid within one month after such day or after demantl (which shall last happen); and where any mortgagee in possession as afore- When he must said has been fully paid all interest up to the last half-yearly or other sion. ''''°*"'''" such periodical day as aforesaid, together with any costs he may be entitled to retain out of the tolls of the road, he shall, within twenty-one days after such payment render, to the trustees or com- (a) 3 Geo. 4, c. 126, s. 47. (rf) Sect. 5. (b) Sect. 48. {e) Sect. 6. (c) 12 Sc 13 Vict. c. 87, s. 4. 1104 APPENDIX. missioners of such road an account of his receipt as such mort- gagee in possession, and of the apphcation thereof, and shall pay the balance, if any, in his hands to the treasurer of such road, and shall deliver possession of all toll-gates, bars, chains, toll-houses and build- ings of which he may have been in possession to the said trustees or commissioners, or to some person appointed by them ; and where no half-yearly or other periodical day is fixed by such mortgage or other- wise for the payment of interest, such interest shall, for the purposes of this provision, be deemed to be payable on the 1st day of May and the first day of November in every year (a). 2110. Reduction of in- The trustees or commissioners of any turnpike road in England, at terest and dis- , , , .";„,., , ^ , charge of arrears, a general annual or otlier meeting (or which and or the purpose whereof twenty-one days' previous notice shall be given in some newspaper usually circulated in the county or counties in which the road is situate) may resolve, that if the consent of the mortgagees be obtained, an application be made to one of her Majesty's principal secretaries of state for a provisional order to reduce the rate of interest on the mortgage debts charged or secured on the tolls or revenues of such road, to such amount as may be resolved on at such meeting, and for extinguishing in whole or in part the arrears of the interest on such debts, or for either of such purposes ; and where any such reso- lution is made, the trustees or commissioners shall cause notice to be given by advertisement or otherwise of such resolution, with such in- formation in relation to the matter of the proposed application, and the consents required by the act, as the trustees or commissioners shall think fit. And if it shall appear to the trustees or commissioners at any general or other meeting, that the persons entitled to two-thirds of the money charged or secured on the tolls or revenues of the road, and remaining unpaid, have signified in writing under their hands their consent to the proposed application, the trustees or commissioners may make an application accordingly to one of the principal secreta- ries of state for a provisional order for such reduction of the rate of interest on the said debts, and for extinguishing in whole or in part the arrears of interest thereon or for either of such purposes. And such application shall be signed by three or more of such trustees or commissioners, who shall therein certify that the consents required by the act to such applications have been given (h). This provision was at first confined to cases in which the revenues of the road applicable to the payment of the interest were insufficient to pay it in full (c) ; but by subsequent acts, it was extended to the case of any turnpike road, the act in relation to which was continued by any annual turnpike acts continuance act, though the revenues of such road be not insufficient for such payment (^Z). The act empowers all executors, administrators, guardians, trustees, (a) 13 & 14 Vict. c. 79, s. 5. (d) 23 & 24 Vict. c. 73, s. 3 ; 24 (b) 14 & 15 Vict. c. 38, s. 1. & 25 Vict. c. 46, s. 2. (c) Id. I OF SECURITIES UNDER VARIOUS STATUTES. 110.5 and committees of tlie estates of idiots and lunatics, entitled to any money secured on the tolls or revenues of tlie road, to consent to the application, and indemnifies them for doing so («). The secretary of state, after the receipt of any such application, may make a provisional order in pursuance of such application, and may cause such provisional order to be published as he shall think fit ; and if it be enacted by any act of parliament that such provisional order shall be confirmed and be absolute, it shall be as binding and of the like force and effect as if the provisions thereof had been expressly enacted by parliament; and every such act shall be deemed a public general act (b). In pursuance of these provisions, the interest on many mortgages of turnpike tolls has been reduced, and the provisional orders have been confirmed by subsequent statutes. 2111. Where turnpike road trustees or commissioners are desirous Discharge of se- of paying off any portion of the principal due on the credit of * the road, when all the interest has been paid or satisfied, they are em- powered at a meeting to be held as mentioned in the act, instead of paying the same rateably among all the creditors, to determine by lot to which of the creditors the whole or any part thereof shall be paid, and may pay the same to such creditor or creditors only, or to any of the creditors, with the consent of all the other creditors (c). 2112. By another act (c?) the trustees or commissioners of any turnpike Creation of sink- road thereafter borrowing or securing money on the credit of the tolls discharge by are directed out of the tolls, and in priority to all other payments there- composition. out, except the interest on any such money and on any other existing securities, to set apart iJl. per cent, per annum on the amount of the mortgage debt, and as often as the sums so set apart shall amount to 2001., to apply the same in the discharge of a proportional part of the debt, at a mooting (of which notice is to be given), by payment to the creditor who shall have offered to accept the lowest composition iu respect of such monies; and shall apply the surplus, if any, or a por- tion of such sum as the case may require, in or towards the discharge of monies owing on the securities of the tolls to the creditor who shall have oflered to accept the next lowest composition in respect of such monies, and so until the sum shall be exhausted; with liberty for the trustees or commissioners to determine by lot the preference among two or more such creditors who shall have ofi'ered to accept an equal rate of composition, or to pay such composition rateably among such cre- ditors, as the trustees or commissioners think fit; and if there be no such proposal, or there be any surplus of the sum after applying the same so far as may be necessary in or toward the discharge of the monies to which such proposals relate, the trustees or commissioners may apply the said sum rateably among the creditors, or may pay the same (a) H & 15 Vict. c. 38, s. 2. (c) 4 Geo. 4, c. 95, s. 60. (6) Sect. 3. (rf) 12 & 13 Vict. c. 87, s. 3. 1106 APPENDIX. to such of them as may be determined by lot, as the trustees or eom- sioners think fit. Of the \Ycst India Incumbered Estates Acts. 2113. By the West India Incumbered Estates Acts, 1854, 1858, 1862, and 1864 (a), the treasury is empowered to appoint commissioners for the sale of incumbered estates in the West Indies, who constitute a court of record, with the powers, authority and jurisdiction of a court of equity in England, and in any colony or colonies within which the acts may be or come into operation (2119), for the investigation of title, for ascertaining and allowing incumbrances and charges, and the amounts due thereon, and for settling the priorities thereof; and the rights of the owners and others in lands in respect of which applica- tion is made under the acts, or in the money to arise from sales under the acts, and for enforcing, rescinding and varying contracts for sale under the acts, as are vested in courts of equity in relation to sales under the direction of the court. The commissioners are empowered to sell incumbered property situate in colonies within their jurisdiction, including live or dead stock, plant, carts, carriages, implements, duplicate and other unfixed macliiuery, utensils, and other chattels and effects employed in or about the cultivation of the land or any part thereof, and subject to any incumbrance affecting the land or any part thereof, aud all or any other horses, mules, cattle, live or dead stock, plant, carts, carriages, implements, duplicate and other unfixed machinery, utensils and other chattels and effects so employed, and the owner or part owner or any mortgagee of whicli sjiall apply for or consent to such sale ; and as to the owner with or without the concurrence of any trustee for him, or by the trustee with the concurrence of the owner. And where an incumbrance is vested in trustees or settled on persons in succession, the commissioners may act on an application by the trustees or by the first person entitled to the income, or any other person having in the oi)inion of tlie commissioners sufficient interest in the incumbrance to justify an application for sale. 2114. The acts contain various provisions as to the form of application, the proceedings of the commissioners thereon, the mode of sale, the pay- ment and application of the purchase-money, the effect of the convey- ances, the mode of proceeding where part only of the land subject to an incumbrance is sold, and other matters necessary for carrying into effect the intentions of the act. 2115. The costs of the proceedings are in the discretion of the commis- sioners, and unless by their direction the costs of the petitioner of his (a) 17 & 18 Vict. c. 117; 21 & 22 Estates and Incumbered Estates Vict. c. 96 ; 25 & 26 Vict, c. 45 ; 27 Court Acts, which court is now & 28 Vict. c. 108. These acts are merged in the Irish Landed Estates founded upon the Irish Incumbered Court. OF SECUKITIES UNDER ^ AUIOUS STATUTES. 1 107 petition for sale, are not payable out of the proceeds of the sale other- wise than in the order of priority in which his incumbrance is pay- able. An appeal from the orders of the commissioners lies to the privy 2116. council. AVhen an absolute or conditional order is made for sale under the 2117. acts, the commissioners are empowered to appoint a receiver or receivers of such lands or property, or any part thereof, in like manner as the Court of Ciiancery in England may appoint a receiver of the rents and profits of any lauds within its jurisdiction, in a suit relating to such lands ; and the receiver so appointed has the powers of receivers appointed by the Court of Chancery in England, subject to the general rules to be made by the commissioners. The receiver 60 appointed is to give security and to be entitled to 2118. such remuneration as the commissioners sliall direct, subject to the general rules : and the balance due to him in respect of his remunera- tion, or in respect of his proper expenditure in the management and cultivation of the estate, is a charge thereon in priority to all incum- brances. The following colonies are made subject to the acts after an order 2119 in council directing the same to come into operation therein ; and the colonies concerning which such orders have been made are distinguished by the dates of the orders which respectively relate to them : — 18G1, Jamaica. IJarbadoes. 1857, St. Vincent. 1866, Grenada. 1858, Tobago. St. Lucia. 1864, Antigua. 1867, Dominica. 1860, St. Christopher's. 1865, Montserrat. 1867, Nevis. 1860, The Virgin Islands. British Guiana. Trinidad. The Bahamas. The Turk's Islands (a). (a) The rules made by the com- found in Cust on the West India missioners under these acts will be Incumbered Estates Acts. 1108 APPENDIX. OF STAMPS UPON SECURITIES. 2120. Registration of bill of sale. 2121. Bond for payment or transfer nf money or stock. 2122. Bond as addi- tional security. BILL OF SALE. See Mortgage (2138). Every affidavit (a) renewing the registration of a bill of sale, shall bear an adhesive common law stamp of the value of 5s. No copy of any bill of sale of personal chattels shall be filed, unless the original shall be produced to the proper officer, with whom the copy is to be filed, duly stamped (6), BOND (c) in England or Ireland, and personal bond in Scotland, given as a security for the payment of any sum of money, or for the transfer or re-transfer of any share in any of the government or parliamentary stocks or funds, or in the stocks or funds of the Bank of England or Ireland, or of the East India or South Sea Company, or of any other company or corporation, which shall be secured also by a mortgage, wadset, or other instrument in writing, by the act charged with, and which shall have paid the same duty as a mortgage or wadset, or for the performance of covenants contained in such mort- gage or other instrument or writing, or for both those purposes; pro- vided such mortgage, wadset, or other instrument in writing shall bear even date with, and be referred to in such bond (d) : Where the sum of money, or the value of the stock or funds secured, shall not exceed 800/., The same ad valorem duty as on a mortgage or wadset for se- curing the like amount or value. And where such sura of money or value shall exceed 800?. £10 Bond in England or Ireland, and personal or heritable bond in (a) Bills of Sale Act, 186G, 29 & 30 Vict. c. 9(j. (6) 24 & 25 Vict. c. 91, s. 34. This enactment docs not prevent the givinp; in evidence of a bill of sale not duly stamped at the time of filing the copy, if the deficiency of duty and the penalty be paid. {liel- lamy v. Saull, 4 B. & S. 265 ; 32 L. J., Q. B. 3fJG.) (c) 13 & 14 Vict. c. 97, sched., taking eflTect from and after lOth October, 1850. (rf) The words "bear even date" tie down the operation of the clause to the date written on the instru- ment. Therefore, although the mort- gage and the bond were executed at the same time, if they do not bear the same date, it will not be suffi- cient to stamp the bond (being over 800/.) with a U. stamp. {Wood v. Nortoii, 9 B. & C. 885 ; 4 M. & R. (i73, under 55 Geo. 3, c. 184.) The provision applies if the instruments be of even date, although the obligor in the bond be not the same person wlio is the maker of the collateral security. And a recital of the colla- teral security in the bond, provided it appear by the recital that the deed of even date was an instrument whicli required an ad valorem stamp ( Wal- mesley v. Brkrley, 1 M. & Rob. 529), will be prima facie evidence that there was a valid deed of the same date for the same money ; it is not necessary to j)roduce the latter with a denoting stamp sliowing the pay- ment of the ad valorem duty, for the statute does not require it to be shown as a condition precedent that the ad valorem duty has been paid. {Qnin v. King, 1 M. & \V. 42.) OF STAMPS UPON SECURITIES. 1 1(J9 Scotland, given as an additional or further sficiirity for the paj-ment of any further sum or sums of niuuey, or for tiie transfer or re-transfer of any share in any of the stocks or funds before mentioned, previously secured by a bond, mortgage, or other security therein referred to, and which shall have paid the proper ad valorem duty on bonds or mortgages imposed by law at the date thereof (2138): Where the sum of money, or the value of the stock or funds se- cured, shall not exceed 1,400/., The same ad valorem duty as on a bond or mortgage for secur- ing the like sum or value. And where such sum of money, or the value of the stock or funds secured, shall exceed 1,400/ £11-5 2123. Bond uj)on (e) and in respect of any bond, debenture, or other Uonu by loreifn security for money by whatever name, made in the United Kingdom government, &:c. or elsewhere, by or on behalf of any foreign or colonial government, state, or company, and bearing date or signed after the passing of the act (not being a bill of exchange or promissory note chargeable as such with stamp duty, nor being an instrument already chargeable with the same duty as a bond, or for which a composition in lieu thereof is payable), which shall be issued, delivered, assigned, trans- ferred, or negotiated within the United Kingdom : The same stamp duty as is chargeable on a bond made in the United Kingdom, for securing the payment of the like amount of money. Provided that this shall not extend to charge with stamp duty any Proviso, instrument bond fide made and issued at any place out of the United Kingdom as a security for the repayment of money raised or procured on loan in foreign parts, and not lent or advanced by any person resi- dent in the United Kingdom, and the interest whereon shall not be paid within the United Kingdom, If(/j any person shall make, issue, deliver, assign, transfer, or Penalty, negotiate in the United Kingdom any bond, debenture, or other security, by the act chargeable with stamp duty, or shall pay any instrument or dividend accrued due in respect of any such instru- ment, before the same shall be duly stamped for denoting the said duty, he shall forfeit the sum of "20/. 2124. Any {g) transfer or assignment, disposition or assignation of any Transferor bond such bond as is mentioned in 13 & 14 Vict. c. 97, and which shall have y\^^_ ^.^7. paid the proper ud valorem duty on bonds: Where the princii)al money or stock secured by the bond shall not exceed in amount or value in the whole the sum of 1,400/., The same duty as on a bond for the total amount or value of such principal money or stock. (e) 25 Vict. c. 22, Sched. (C). {g) 13 & H Vict c. 97, Sched. (/) 25 Vict. c. 22, s. 3S. 1110 APPENDIX. And in every other case such transfer, assignment, disposition, or assignation, shall be chargeable with the duty of . . £1 15 And see Progressive Duty (2158). 2125. rntier30&3i The above duties on the transfer of bonds are repealed from and Yict. c. 90. ^j.^^^. ^j^^ passing of 30 & 31 Vict. c. 90, s. 23 (l-2th Aug. 1867), and instead thereof the following are enacted : Upon every transfer or assignment, disposition or assignment of any bond, given as a security for the payment or repayment of money, or for the transfer or re-transfer of any share in any of the stocks or funds mentioned in the schedule to 13 & 14 Vict, c, 97 (2121), and of any bond, debenture or other security charged with stamp duty by 25 Vict. c. 22 : For every full sum of 100/., and also for any fractional part of 100/. thereby transferred, assigned, or disponed, of the amount or value of the principal money or stock secured by such bond, debenture or other security, or of the penalty of the bond in respect whereof the same is charged with duty, as the case may«be, the duty of 66?. Proviso. Provided always that in the case of a bond charged with the fixed maximum duty of IZ. or 1/. 15s. (2121, 2122), no transfer, assign- ment, disposition or assignation thereof hereby charged shall be chargeable under this act with more than the amount of such fixed maximum duty. 2126. When cognovit COGNOVIT. A mere cognovit requires no stamp (7<) ; but in requires s amp. (.prtain cases it becomes liable to be stamped as an agreement. To create this liability, it seems that there must be mutuality in the agreement (i) ; and no liability arises by a mere stipulation that the defendant will take no advantage of the giving of the cognovit before declaration (A), or that time shall be given for payment (/), or that in default of payment on a certain day the plaintiff may sign final judgment and issue execution {m) ; though where the cognovit pro- vided for payment of the debt by instalments, a stamp was held to be necessary (n). 2127. On mortgages of COPYHOLDS (o). Where any copyhold or customary lands or copy 10 s a one. jjgj-editaments shall be mortgaged by means of a conditional surrender or grant (2138)> the ad valorem duty shall be charged on the surrender or grant, or the memorandum thereof, if made out of court; as on the copy of court roll of the surrender or grant if made in court. And copies of court roll made after the 31st August, 1815, of surrenders and grants made in court before or upon that day, and subsequent to (h) Ames v. Hill, 2 B. & P. 150. (m) Bray v. Hanson, 8 M. & W. (i) Per Taunton, J., Gieenv. Gray, 668 ; but see Ames v. Hill, supra. 1 Dowl. P. C. lijO. (n) Reardon v. Swabey, 4 East, (fc) Green v. Gray, supra. 188. {I) Jay X. Warren, \C.&V.5Z1 ; (o) 55 Geo. 3, c. 184, Sched. Morley v. Hall, 2 Dowl. P. C. 494. Mortgage. OF STAMFS UrON SECUIllTIES. 1111 tlie 10th October, 1808, sliall be cliar^ed witli the said ad valorem duties. But copies of court roll of surrenders and grants made before or upon the lOtli day of October, 1808, sliall not be liable thereto. 2128. And where any copyhold or ciisfoniary lands or hereditaments shall WiHi oiiier pro- be mortgaged or cliaigcd together uith otiier property, for securing one and the same sum of money, or one and the same share of any of the stocks or funds before mentioned, the ad valorem duty shall be charged in the deed or instrument relating to the other property {p). 2129. COVENANT {q). Any separate deed of covenant, made on the Covenant nn sale sale or mort£;age of any freehold, leasehold, copyhold, or customary ^^ ^^' ^ '"''■ estate, or of any right or interest therein (the same not being a deed chargeable with ad valorem duty under the head of Conveyance in the schedule) for the conveyance, assignment, surrender, or release of such estate, right or interest, or for the title to or quiet enjoyment, freedom from incumbrances, or further assurance of the same estate, right or interest or otherwise, by way of indemnity in respect of the same, or for the production of the title deeds or muniments of title relating thereto or for all or any of those purposes : Where the ad valorem duty on the purchase-money or considera- tion, or on the mortgage-money, shall not e.\ceed the sum of \0s., A duty equal to the amount of such ad valorem duty. And where the same shall exceed that amount, 10s. And see Progressive Duty (2158). 2130. Any deed containing a covenant for the payment or repayment of Coven mt for pay- ,. ,. ^1 . .. ^ !• i> iiient or transfer any sum or sums or money, or tor the transter or re-transter ot any of money or share or shares in the government or parliamentary stocks or funds, stock, or in the stock and funds of the Bank of England or Ireland, or of the East India or South Sea Company, or of any other company or corporation, in any case where a mortgage made for the like j)urpose would be chargeable under the schedule with any ad valorem duty exceeding in amount the sum of \l. 15s.; or for the payment of any annuity, or any sums at stated periods, in any case where a bond for the like purpose would be chargeable with any such duty : The same ad valorem duty as on a mortgage or bond respec- tively for the like purpose (2121, 2138). See Progressive Duty (2158). 2131. Provided that where any covenant shall be made as an additional Covenant as . further security, or further security tor tlic payment or repayment, transfer or re- transfer of any sum or suras of money, or any share or shares in any of the said stocks or funds, or for the payment of any annuity or suras at stated periods at the same time or already or previously se- (p) This provision is enforced (7) 13 & 14 \'ict. c. 97, Sched., strictly. {Reed v. IVilmot, 7 Binij. taking etiect from and after lOtli 577 ; 5 M. & P. 553.) '^ October, 1850. 1112 APPENDIX. Exemption. 2132. IMortfjages by distinct instru- ments. 2133. Duplicate securities. cured by any bond or other instrument mentioned and referred to by the deed containing such covenant, and chargeable with, and whicli shall have paid the proper ad valorem duty under the head of Bond or Mortgage, or (as respects anj' annuity) under the head of Convey- ance respt^ctively, in tlie scliedule or under any act or acts in force at the date thereof in respect of the same sum or sums, share or shares, the said ad valorem duty hereby charged shall not be payable upon or in respect of such covenant; and if required for the sake of evidence, the deed containing such covenant shall on the same and such bond or other instrument being produceLl, duly stamped in other respects, be stamped with a particular stamp for denoting or testifying the pay- ment of the ad valorem duty hereby charged. Exemption from the preceding ad valorem duty, but not from any other duty to which the same may be liable, Any covenant contained in any deed chargeable with any duty under the head of Mortgage, in the schedule, or in any deed ex- empted from the ad valorem duty on mortgages by the act 3 Geo. 4, c. 117, such deeds hereby exempted operating as a security by way of mortgage, or as a transfer, assignment, disposition or assignation thereinafter charged for the same sum or sums of money, or share or shares in any of the stocks or funds, which is or are the subject of such covenant. Also any covenant contained in any deed chargeable with any duty nnder the head of Settlement in the schedule, in respect of the same sum or sums of money, or share or shares in any of the said stocks or funds, which is or are the subject of such covenant. DISTINCT INSTRUMENTS (r). Where several distinct deeds or instruments falling within the description of any of the instruments charged with the said ad valorem duty on mortgages (s) (2138), and wadsets shall be made at the same time for securing the payment or transfer of one and the same sum of money, or one and the same share of any of the stocks or funds before mentioned, the said ad valorem duty if exceeding 21. shall be charged only on one of such deeds or instruments, and all the rest shall be charged with the duty to which the same may be liable under any more general description of such deeds or instruments, and if required for the sake of evidence, all the rest of such deeds or instruments shall be also stamped with a par- ticular stamp for denoting the payment of the ad valorem duty, on all tlie said deeds or instruments being produced duly stamped with the duties charged thereon. DUPLICATE OR COUNTERPART(0 of any deed or instru- (r) 55 Geo. 3, c. 184, Sched. Mortgage. (s) A surrender of copyholds by way of mortgage, and a deed of even date containing a covenant to repay and a power of sale on default, forms substantially one security, and is not within the proviso as to distinct deeds. (Sellick v. Trevor, 11 M. & W. 722.) (0 13 & 14 Vict. c. 97, Sched. OF STAMPS UPON SECURITIES. 1 1 1 -J inent of any descri])tion whatever, chargeable with any stamp duty or duties, either under tlie schedule or any otlier act or acts then in i'orce : Where such stamp duty or duties chargeable as aforesaid (exclb- sive of progressive duty) shall not amount to the sum of five bhilliugs, The same duty or duties as siiall be chargeable on the original deed or instrument, including the progressive duty thereon (if any). And where the same (exclusive as aforesaid) shall amount to the sum of five shillings or upwards ..... .£0 5 And where in the latter ca^e any such deed or instrument, together with any schedule, receipt or other matter put or endorsed thereon or annexed thereto, shall contain 2,160 words or upwards, then for every entire quantity of 1,080 words contained therein over and above the first 1,080 words, such duplicate or counterpart sluill be charged with the further progressive duty of ..... £'0 2 G Prf)vided always, that in such latter case, the duplicate or counter- part shall not he available unless stamped with a particular stamp for denoting or testilying the payment of the full and proper stamp duty on the original deed or instrument, which said particular stamp shall be impressed upon such duplicate or counterpart, on the same being produced, together with the original deed or instrument, and on the whole being duly executed and duly stamped in ail other respects (w). EXEMPTIONS (see Covenant) from the ad valorem duty on 2134. mortgages, &c., but not from any other duty to which the same may be liable: Anv deed or other instrument made in pursuance of, and con- Security in pur- •' 1 1 1 1 • I I suance of agree- formably to any agreement, contract or bond, charged witli, ana ment.sjc, already which biiall actually have paid the said ad valorem duly (.r). stumped. 2135. Any bill of sale, conveyance, assignment, or other deed or instru- Securities on ment whatever, for the sale, transfer or other disposition, either abso- '' ''"'' lutely or by way of mortgage or otherwise, of any ship or vessel, or any part, interest, share or property of or in any ship or vessel (?/). 2136. Transfers or assignments of bonds or mortgages given by public Transfers of seeu- ° , . . , 1 • ... , ,.1 rities by public companies, where, on the ongmal making and issuing tliereot, tlie companies, same shall be stamped with an amount of duty equal to three times the ad valorem duty chargeable thereon, and over and above the ad (tt) As to duplicates of any deed the whole being produced duly or instrument chargeable with the stamped, the latter were also to be ud valorem duty on mortfrajies and stamped with a particular stamp for wadsets exceeding '21. before 11th denoting the payment of the said October, 185fi. one of them only was ad valorem duty. (5o Geo. 3, c. 1S4, charged therewith, and tlie other or sclied.) other's with the duty to which the (x) 55 Geo. 3, c. 184, sched. same might be liable under any Mortgage. more general description; and on (i/) C Geo. 4, c. 41, s. 1. M. VOL. II. 4 C 1114 APPENDIX. 2137. Additional secu- Tities. 2138. Mortgage securi- tie valorem duty : but the exemption does not extend to duty to wliich the transfer may be liable as a settlement (z). ^OT exemptions prior to the 11th October, 1850, of instruments for additional or further security under 55 Geo. 3, c. 184; 56 Geo. 3, c. 56, and 3 Geo. 4, c. 117, s. 3, see those acts. And see Banhruptnj Act, 12 & 13 Vict. c. 106, s. 138. Buildimj Societies Act, 10 Geo. 4, c. 56 ; 4 & 5 Will. 4, c. 40 ; 6 e^ 7 Will. 4, c. 3-2 (a). Loan Societies Act, 3 & 4 Vict. c. 110, ss. 9, 14. {Ireland) 6 & 7 Vict. c. 91, s. 26. Clergy Besidence Act, 17 Geo. 3, c. 53, s. 15. Improvement Act, 8 & 9 Vict. c. 56, s. 47. Land Tax Tiedemption Acts, 42 Geo. 3, c. 116, ss. 68, 81, 107, 173 ; and other Land Tax Redemption Acts. Toor- Law Act, 4 & 5 Will. 4, c. 76, s. 86. MORTGAGE(Z;). See Copyholds ; Distinct Instruments. Conditional surrender by way of mortgage, further charge, wadset and heritable bond, disposition (e), assignation or tack in security, and eik to a reversion of or affecting any lands, estate or property {d), real or personal, heritable or moveable whatsoever : (a) 16 & 17 Vict. c. 59, s. 14; and in Scotland, see 24 & 25 Vict. c. 50. {a) Sect. 4 of the last act incor- porates sect. 37 of 10 Geo. 4, c. 56, and exempts from stamp duty all securities for the purpose of carry- ing; that act into execution ; and the etiect of 6 & 7 Will. 4, c. 32, s. 4, is not restricted by 3 & 4 Vict. c. 73, s. 1. ( Walker v. Gilvs. 6 C. B. 662 ; Barnard v. Pihworth, id. 698, n.) A mortgage taken by a building so- ciety before its rules liad been certi- fied under 10 Geo. 4, c. 56, and 4 & 5 Will. 4, c. 40, does not require a .stamp. ( JVilliams v. Ilaj/ward, 25 L. J., Ch. 289; 22 Beav.2'20.) (b) 13 & 14 Vict. c. 97, Sched., taking effect from and after 10th October, 1850 ; and see 28 & 29 Vict. c. 78, s. 26. An assignment of property to indemnify an assignee agains-t, or to secure a contingent future payment, is as much within the statute as where the payments are certain. (Lard Canning \. Raper, 1 El. & Bl. 164; 17 Jur. 390; 22 L. J., Q. B. 87, under 55 Geo. 3, c. 184; Morlimore v. Commissioners 0/ Inland Revenue, 2 H. & C. 838 ; 10 Jur. (N. S.) 868.) The delivery of a bill of lading, and policy of insu- rance for goods, with a letter stating that it will afford a security for ad- vances, is" not a mortgage, there being no conveyance by way of se- curity. It is only a pledge and not within the statute. (Harris v. Birch, 9 M. & W. 591 ; 1 Dowl. (N, S.) 899.) The restriction, which prohi- bits the stamping of a promissory note after the making, apj)lies only to the note stamp. The fact, that an instnunent which may be stamped after the making, as a mortgage, con- tains also a promissory note, does not prevent the subsequent stamp- ing as a mortgage. ( IVise v. Charlton, 4 A. & E. 786.) (c) This is a technical word, which refers only to a Scotch instrument. {Harris v. Birch, supra.) {d) A policy of insurance is pro- perty \vit\un this clause, and a mort- gage of it requires an ad valorem stamp. {Caldwell v. Dau'son, 5 Exch. 1 ; 55 Geo. 3, c. 184.) So of the good will of a trade. {Potter v. Com- missioners of Inland Revenue, ] Exch. 147.) But formerly neither judgment debts, interests of part- ners in the partnership contracts and debts, nor policies of insurance, were considered to be property with- in the acts. See Warren v. Howe, 2 B. & C. 281 ; Belcher v. Sikes, 6 B. & C. 234 ; Blandy v. Herbert, 9 B. &: C. 39G, now overruled. OF STAMPS UrON SIXUUITIKS. 1 1 lo ,.. • ... . 2139. Alsu any deed containing an obligation to intclt any person in oi.ii^'atiom to an annual rent, or in lands or other lieritablf! subjects in Scotland, '"^*'f^- under a clause of reversion, but without any personal bond or obii;^a- tion therein contained for payment of the money or stock intended to be secured : 2140. Also any conveyance of any lands, estate or property, in trust, to Trust* tm ^ak• by be sold or otherwise converted into money, which shall be intended * '"""^ ^' only as a security, and shall be redeemable before the sale or other disposal thereof, either by express stipulation or otherwise; £xccj)t whvre such conveyance shall be made for the benefit of Except creditors' " deeds creditors generally or specified, who shall accept the provision made for payment of their debts in full satisfaction thereof, or who shall exceed five in number: 2141. Abo any defeasance, letter of reversion, back bond, declaration or Defeasance, 8cc. other deed or writing, for defeating or making redeemable, or explain- ing or qualifying, any conveyance, disposition, or assignation, or tack of any lands, estate or property, whatsoever, which shall be appa- rently absolute, but intended only as a security : 2142. Also anv acreement, contract or bond, accompanied with a deposit ARreemcnt to '^ , , accompany de- of title deeds for making a mortgage, wadset or any such otlier secu- posit of deeds, rity or conveyance as aforesaid, of any lands, estate or property, comprised in such title deeds, or for pledging or charging the same as a security (e) : 2143 An ao-reement or memorandum in writing, relating to the deposit of Afrreement with ° „ - ^ , , ,, , o deposit of land a land certificate under the Transfer of Land Act, tor the purpose ot certificate, creating a lien on the estate and interest of the depositor (/) : 2144. Also any deed wherebv a real burden shall be declared or created Declaration of J - real burden. on lands or heritable subjects in Scotland : 2145. Where the same respectively shall be made as a security for the ^J'^J'^'^^^^^™; payment of any definite and certain sum of money (^)42147), ail- (c) The liability to a mortgage property, the deeds of which had stamp is not created by a memoran- been previously deposited with him. dum with deposit of title deeds by {Pijle v. Partridge, lo -M. & W. 20.) way of security, merely containing a A bond has been held to be suffi- record of the purpose for which the ciently stam^ied as a simple bond deposit was made. {Meekw Btn/liss, for the retransfer of stock, thonglj .'H L. J., Ch. 448.) Nor by the de- accompanied by a collateral sccu- livery of a bill of lading and policy rity insutKciently stamped; and a of insurance for goods, with a letter bond to replace stock accompanied making them a securityfor advances, by a deposit of title deeds is not altiiougli the memorandum confer a liable to a mortgage stamp as a bond power of sale. {Harris \. Birch, 9 for making a mortgage. {lilair v. M. &W, 591 ; 1 Dowl. (N.S.)899; Ormoud, 14 Q. B. 732; 14 Jur. 191; In re Atteuboroitsh, 11 Exch. 461 ; held under like words in 48 Geo. 3, 25 L. J., Ex. 22.) Nor by a docu- c. 149, sched. Mortgage.) ment confirming distresses and other (/) 25 & 2(5 Vict. c. 53, s. 73. proceedings by the lender respecting (g) The definite and certani sum 4c 2 1116 APPENDIX. vanced or lent at the time, or previously due and owing, or forborne to be paid, being payable, 2146. Security for future advance. 2147. Security for un- certain sum. Not exceeding 50Z Exceeding 501. and not exceeding lOOZ. lOOZ. 150Z. 150Z. 200/. 200Z. 2oOZ. 2oOZ. 300Z. And where the same shall exceed 300Z. then for every lOOZ. and also for any fractional part of lOOZ. d. 3 6 9 3 6 2 6 And where the same respectively shall be made as a security for the repayment of money to be thereafter lent, advanced or paid, or which may become due upon an account current, together with any sum already advanced or due, or without, as the case may be, other than and except any sum or sums of money to be advanced for the insurance of any property comprised in such mortgage or security against damage by fire, or to be advanced for the insurance of any life or lives, or for the renewal of any grant or lease upon the dropping of any life or lives, pursuant to any agreement in any deed whereby any estate or interest held upon such life or lives shall be granted, assigned or assured, or whereby any annuity shall be granted or secured for such life or lives : If the total amount of the money secured, or to be ultimately re- coverable therenn, shall be limited not to exceed a given sura, The same duty as on a mortgage or wadset for such limited sum. And if the total amount of the money secured, or to be ultimately recoverable thereupon, shall be uncertain and without any limit (h) of money here referred to is the principal sum secured without re- gard to interes:, although interest be secured from a day prior to the date of the security ; provided, it seems, it do not appear on the deed, that interest was then due. Held as to 55 Geo. 3, Barker v. Smnrk, 7 M. & W. 590 ; on a bond, Davies v. Heath, 3 C. B. 938. And, under the same act, without regard to money which the mortg.igee in that character is entitled to receive, and which is only a charge on the pro- perty, and does not constitute a debt recoverable at law between the par- ties. Such are costs incurred in re- covering the debt with interest {Doe d. Scrutnn v. Snailh, 8 Bing. 146 ; 1 Moore & S. 230) ; taxes payable in respect of the mortgaged property or debt, and interest {Doe d. Merce- ron v. Bragg, 8 A. & E. C20); costs incurred in the renewal of leases or otherwise ( Wrouiiliton v. Turtle, 11 M. & VV. 561 ; SNev. & P. 644 j 1 D. & L. 473 ; Lysnght (lessee cf) v. Ciuieaily, 10 Ir. L. R. 269); and liremiums on policies and costs of obtaining new policies. {Law- rence v. Boston, 7 Exch. 28 ; 21 L. J., Ex. 49.) And the stamp was held sufficient, though an uncertain sum not otherwise ncovcrable was charged, where it was not shown that tlie ainount of it with the prin- cii)al debt would exceed the sum for which the deed was stamped. (Pad- don v. Barl/ett, 2 A. & E. 9 ; 5 N. & M. 1. See also IVatson v. Mac- quire, 5 C. B. 836(2146).) {h) A mortgage deed, though OF STAMPS UPON SECURITIES. 1117 (2145), t''PH the same sliall be available as a. security or charge for sucli an amount only of money or stock intended to be thereby secured as the ad valorem duty denoted by any stamp or stamps thereon will extend to cover : 2148. And wi)ere the same respectively shall be made as a security for securit) lonrans- the tninsfer or re-transfer of any share in any of the government or Itock.''*'^*' °' parliamentary stocks or funds, or in stock and funds of the Bank of England or Ireland, or of the East India or South Sea Company, or of any otiier company or corporation, in consideration of stock or money advanced or lent at the time or previously due and owing, or forborne to be paid, being payable. The san)e duty as on a mortgage or wadset for a sum of money equal to the value of the stock or fund secured, according to the average price thereof on the day of the date of the mort- gage or other instrument aforesaid, or on eitiier of the ten days preceding; or, if there shall not have been any known sale on any of such days, then on the latest day preceding on which there shall liave been a known sale. 2149. And where any such deed or instrument as aforesaid shall be made Security for , • !• 1 n 1 repayment of respectively as a security lor the repayment or any rent-charge or rent or annuity, annuity, or any sum or sums of money by way of repayment, or in satisfaction or discliarge, or in redemption of any sum of money lent, advanced or paid as or for, or in the nature of a loan, intended to be repaid^ satisfied, discharged or redeemed in manner aforesaid. The same duty as on a mortgage or wadset for the sum of money so lent, advanced or paid. And (i) where the same respectively shall be made as a security for Security for tlie payment of a sum of money, and also for tiie transfer or re- ™""^y ^' transfer of a sliare in any of the said stocks or funds, the ad valorem duty shall be charsed in respect of each. And (/f) in case the same shall be made respectively as a security for security for the payment or transfer to difi^erent persons of separate and distinct dUiinctsuma. sums of money, or shares in any of the said stocks or funds, the ad valorem duty sliall be charged for each separate and distinct sum of money or share in any of the said stocks or funds therein specified and secured, and not upon the aggregate amount thereof. made for securing repayment of an ferent sums by several persons, it uncertain and unlimited amount of will not be necessary to stamp for money or stock, is admissible in evi- each debt separately, unless it appear dence under this provision for so on the face of the dceil that the se- much of the money or stock intended curity was for sej), irate and distinct to be secured as tiie a'i valorem duty sums, and the right to sue is in dis- denoted by the stamp will cover. tmct persons. Even an indorsement {Morgan v. Pike, H C. B. 473 ; 2 C. on the deed by the mortgagee, show- L. R. 696; "23 L. J., C. P. 6k) ing that the advance was by several (/) 55 Geo. 3, c. ISt, sched. persons, will not be sutKcient (lieeci Mortgage. v. W'Umot, 7 Bing. 577 ; Doe d. {k) Id. Although the sum se- Duwne v. Gr-vier, 5 L. T. 37.) cured was in fact advanced in dii- 1118 ArPENDIX. 2150. Transfers of uiort- Any TRANSFER (Z) Or iissigumcnt, disposition or assignation of any gages. mortgage or wadset, or of any such other security as aforesaid, or of tlic benefit thereof, or of the money or stock thereby secured, For (m) every lOOl. or any fractional ])art of lOOZ. of the amount or value of the priiici])al money or stock already secured by such mortgage, wadset, or other security as aforesaid, thereby transferred or assigned or disponed, the duty of Crf. And if any further sum of money or stock shall be added to the principal money or stock already secured as aforesaid, the same duty as on a mortgage or wadset for the amount or value of such further money or stock. Where (?2) no further sum of money or stock shall be added to the principal money or stock already secured. If such principal money or stock already secured shall not exceed in amount or value in the whole the sum of 1,400Z., The same duty as on a mortgage or wadset for the total amount or value of such principal money or stock ; And if such principal money or stock shall exceed in amount or value in the whole the sum of 1,400Z. £1 15 And where any further sum of money or stock shall be added to the principal money or stock already secured, The same duty as on a mortgage or wadset for such further money or stock only. And in every other case not hereinbefore expressly provided for, such transfer, assignment, disposition or assignation shall be chargeable with the duty of ill 15 2161. Where furtiK-r Provided always, that no such deed or instrument as aforesaid, shall in any of the said several cases be chargeable with any further or other dut}' than is herein expressly provided (except progressive duty, 2158), by reason of its containing any further or additional security, for tlie payment, or transfer or re-transfer, of such money or stock, or any interest or dividends thereon, or any new covenant, proviso, stipu- lation or agreement, or other matter whatever in relation to such money or stock, or the interest or dividends thereon, or by reason of its containing all or any of such matters (o). (I) See Doe d. Brame v. Maple, 3 which see David. Con v. vol. 2, note Bing. N. C. 832; 5 Scott, 35. A to transfers of mortgages), it was de- transfer will not be considered as an clared that any transfer or assign- original mortgage for want of proof ment, disposition or assignation al- of the seisin of the mortgagor. ready made, or wliich on or before {w2) 28 & 29 Vict. c. 9G, after 5th the 10th day of October, 1850, July, 18G5. miglit be made, of any mortgage, (7/) After 10th October, 1850, to wadset or other security in the said 5th July, 1865. acts or any of them mentioned, or of (0) By sect. 9 of this stat. (13 & 14 the benefit thereof, or of the money Vict. c. 97), in order to remove the or stock thereby secured, should not doubts as to the duties upon trans- by reason of its containing, either by fers of mortgages under the statutes tlie mortgagor or by any jiersun en- 55 Geo. 3, c. 184', 3 Geo. 4, c. 117, titled to tiie property mortgaged by and 5 & 6 Vict. c. 82 (for a notice of descent, devise or bequest from sucii security given. increased. OF STAMPS UrON SECURITIES. Ill'-' 2152. MonTOAOE. Any deed or instruniont made for tlie fiirtlier assur- MonuaKL i>) way , „ ^ I ■ 1 1 II 1 1 II of further assur- ance only of any estate or property wiiicli slmll huve been ulrcauy ^„^.^. mortgaged, pledged or charged as a security by any deed or instru- ment wliich shall have paid the ad valorem duty on mortgages or bonds chargeable under any act or acts in force at the time of mak- ing such last-mentioned deed or instrument: (2163) 2153. Also any deed or instrument made as an additional or further se- MortRage ai « - I u <• „ addilioiial secu- curity for any sum or sums of money, or any share or shares ot any ji,y_ of the stocks or funds before mentioned (2148), which shall have been already secured by any deed or instrument which shall have paid the said ad valorem duty on mortgages or bonds (j?) chargeable as aforesaid, shall be chargeable respectively with the following duties, viz.: Where the total amount or value of the money or stock already secured, and in respect whereof the said ad valorem duty shall have been paid, shall not exceed the sum of 1,400/., The same duty as on a mortgage or wadset for the amount or value of the said money or stock. And in every other case . . . . • . £1 lo 2154. Provided always, that if any further sum of money or stock shall where debt in be added to the i)rincipal money or stock already secured, such deed or instrument for further assurance, or additional or further security, either by the mortgagor or by any person entitled to the property mortgased by descent, devise or bequest from such mortgagor, shall be chargeable only (exclusive of progressive duty) with the ud valorem duty on mortgages under the act in respect of such further sum of money or stock, in lieu of the duty aforesaid, notwithstanding that the same deed or instrument may also contain any covenant, either by the mortgagor, any further or additional by any person entitled as aforesaid, security for tlie payment or tr.ui-fcr ah'eaily made or which might be or re-transfer ot" such money or made as atoiesaid, operating or in- stock, or any interest or dividends tended to operate as a further charge thereon, or any new covenant, pro- oras a security forany further or addi- viso, power, stipulation or agree- tional money or stock advanced ujjon ment or other matter whatever in any property already comprised in relation to such money or stock, any mortgage or other security, or the interest or dividends thereon, should not by reason of its contain- er by reason of its containing ing all or any of the matters aloresaid all or any of such matters, be or in relation to the money or stock be deemed to be liable to any fur- previously secured, or the interest or ther or other duty (except progres- dividends thereon, be deemed to be sive duly) than the duty thereinafter liable to any further or other stamp mentioned, viz., where no further duty than the duty chargeable on an money or stock had been or should original mortgage for the further or be added to the principal money or addition liI money or stock by such stock already secured a stamp duty deed of further charge or security of 1/. 15.f. ; and where any further charged or secured, or intended so sum of money or stock had been or to be. should be added to the principal (/)) See under the act o5 Geo. 3, money or stock already secured, the c. IS-t, Picrnpoint v. Gower, \ ISI. same stamp dutv only as on a mort- \- G. 705, 5 Sc. N. U. 60.1, whore the gaue or wadset for such further sum original security was by warrant of or stock, and that any deed or in- attorney, strument, either by the mortgagor or 1120 APPENDIX. mortgagor or by any person entitled as aforesaid, proviso, power, stipulation or agreement, or other matter whatever in relation to the money or stock already secured, or the interest or dividends thereon. 2166. Reconveyance. Any RECONVEYANCK, release, Surrender, discharge or renunciation of any mortgage or wadset, or of any other such security as aforesaid, or of the benefit thereof, or of the money or stock thereby secured : Where the total amount of the principal money or stock at any time secured shall not exceed the sum of 1,400/., The same duty as on a mortgage or wadset for the amount or value of the said money or stock. And in any other case £1 15 2166. Mortgage wiih MORTGAGE, Wadset, &cc.(g), with a conveyance of the equity or equity ofredemp- right of redemption or reversion, or other matter in the same deed, fion. Yi2_. Where anjr deed or writing shall operate as a mortgage or other instrument hereby charged with the ad valurem duty on mortgages, and also as a conveyance of the equity or right of redemption or re- version of any lands, estate or property, therein comprised to or in trust for or according to the direction of a purchaser, such deed or writing shall be charged not only with the s'd\d ad valorem duty on mortgages, but also vvith the ad valorem duty hereinbefore charged on a conveyance upon the sale of any property, but where the equity or right of redemption or reversion shall be thereby conveyed or limited in any other manner, such deed or writing shall be charged only as a mortgau:e. 2157. other cases of And in all cascs where a mortgage or other instrument hereby mortgage with , i • i i , . , i n i ... othermatter. Charged With the ad valorem duty on mortgages shall be contained m one and the same deed or writing with any other matter or thing (except what shall be incident to such mortgage or other instrument) such deed or writing shall be charged with the same duties (except progressive duty) as such mortgage or other instrument, and such other matter or thing would have been separately charged with if contained in separate deeds or writings. See Progressive Duty. 2158. Progressive duty. PROGRESSIVE DUTY (r). Where any deed or instrument chargeable with any stamp duty under this schedule, or under any other act or acts in force, together with any schedule, receipt or other matter put or endorsed thereon, or annexed thereto, shall con- tain 2,160 words or upwards, then for every entire quantity of 1,080 words tiiere shall be charged the further progressive duty following (that is to say): Where such deed or instrument shall be chargeable with any ad (q) 55 Geo. 3, c. 18^, schcd. MorU (>) 13 fie H Vict. c. 97, sched. gage. OF STAMPS UPON SECURITIES. 1 1 ^ 1 valorem stamp duty or duties not exceeding in the whole the sum of 10s. a further progressive duty equal to the uinount of such ad valorem duty or duties. And in every other case (except where any other progressive duty is by the schedule expressly charged thereon) a further progressive duty of £0 10 2159. Provided always, that nothing in the act shall extend to charge Provino. the said progressive duty in any case in which express provision is made by any such act or acts as aforesaid for charging a certain duty on every skin, shert or piece of vellum, parchment or paper, in or upon which any deed or instrument shall be contained or written, or to charge witli progressive duty any description of deed or instrument not chargeable with progressive duty under any act or acts then in force, or to charge any deed or in>trument with any higher rate or amount of progressive duty than was then chargeable on a deed or instrument of the like description, under any such act or acts as afore- said. PUBLIC COMPANIES. See Exemptions (2136). 2160. RECOGNIZANCE (s), statute merchant and statute staple, as Reeopnizancr „ ., , n c ■. for payment of security for the payment ot any sum or sums or money, annuity or mouey. annuities, or for the transfer of any share or shares in any of the government or parliamentary stocks or funds, or in the stock and funds of the Bank of England, or of the East India or South Sea Company : Where such payment or transfer shall not be already secured by a bond or mortgage, or by some other instrument hereby charged with the same duty as a bond or mortgage (2121), The same duty or duties as on a bond given for the like purpose in England. And where such payment or transfer shall be already secured as above mentioned . . . . . . . • .£100 2161. Recognizance, statute merchant and statute staple, as security Recntnizance „ _ r 1 for perlornianco for the performance ot any covenant, contract or agreement, or tor tiie of contract or due execution of any office or trust, or for rendering a due account of ''"'*'• money received or to be received, or for indemnifying any person or persons against any matter or thing, 1/. 1.5s. See Progressive Duty (2158). RECONVEYANCE. See Mortgage (2155). SHIPS. See Exemptions (2135). TRANSFER OF MORTGAGE. See Mortgage (2150). {s) 55 Geo. 3, c. ISl, sched. 1122 2162. Warrant of attor- ney to conffss jiidftnient as security. 2163. Where there is collateral security duly stamped. And where giver IS in actual custody. APPENDIX, WARRANT OF ATTORNEY (0 (witb or without a release of errors) to confess and enter up a judgment in any of her Majesty's courts at Westminster or in Ireland, or of the Counties Palatine of Lancaster and Durham, or in any other court of record holding pleas, where the debt or duuiuge amounts to 4Us., which shall be given as a security for the payment of any sum or sums of money, or for the transfer of any share or shares in any of the government or parlia- mentary stocks or funds, or in the stocks and funds of the Bank of England or Ireland, or of the East India or South Sea Company, or of any other company or corporation. The same duty as on a bond for the like purpose (2121)- Except where such payment or transfer shall be already secured (2152) by a bond, mortgage, or other security, which shall have paid the proper ad valorem duty on bonds or mortgages imposed by law at the date thereof, exceeding in amount the sum of 6s. And except where the warrant of attorney shall be given for secur- ing any sura or sums of money exceeding 200/., for which the person giving the same shall then be in actual custody under an arrest on mesne process, or in execution (u). And in these excepted cases a duty of 5s. Other warrants of attorney. Warrant of Attorney not otherwise charsred £1 15 (0 13 & 14 Vict. c. 97, scbed. See Semple v. Nicholson, 4 H. & N. 298. The defeasance on a warrant of attorney is part of it, and does not require an additional stamp as an agreement. {Cawthonie v. Holben, 1 B. & P.N. R. 279.) («) It need not appear on the face of the warrant that the party was in custody. {Hartley v. Manson, 4 M. & G. 172; 1 Dowl. N. S. 711; 11 L. J. C. P. 199.) Although a warrant be joint and several, it will not be within the exception, where only one of the parties giving it was in cus- tody when it was executed. {Solari v. Goi-stoii, 2 P. & D. 338.) INDEX. * * ,^* Tlte references are to the liogrx. ACCIDENT, omission by, of requisites of mortgage may be supplied, 11. ACCOUNTANT, has specific lien, 180. ACCOUNTANT-GENERAL, notice to, gives no priority, 593. ACCOUNTS. See Costs ; Interest ; Mortoagee. where' absent incumbrancers bound by, 5.58, 859. wlicn renuiiiKleriiiaii bound by, 8CI0. when mortgagor and his assignee bound by, 860, 8(jl. insolvent, heir and maiTied woman, 860, 861. surety, 801. co-defendants, 861. where accounts may be opened or surcharged and falsified, 862. when opened between attorney and client, 862. when particular statement of en-or necessary, 863. when errors corrected or otfcrcd to be corrected, 863. amount of error not material, 863. not jiurgcd by set-off of errors, 863. whether several accounts surchiu'ged by errors in some, 864. when accounts are settled, 864. prayer for, is eipiivalent to offer to pay balance, 864, Against mortgagor, mortgagee entitled to immediate account, 864. how far debt ])roved by security, 865. when incjuiry necessary-, 865. when no evidence of amount, 865. what entries in books admissible, 865. evidence of debt to solicitor for costs, 865. where no account of ]n-<4]ts prndcute lite, 806. account of rents received by heir, 866. no account of rents against mortgagor or persons claiming under him, f^M. right to rents and growing crops when mortgagee is out of possession, 867, 868. of jiaymcnls to mortgagee without notice of assignment, 869. Against mortgager, what payments taken as made on mortgage account, 809. when mortgagee liears loss from insolvciicy of payee of deposit, 869. effect of payment on policy effected as collateral security, 869. See POLICY OF Insurance. no account against bona fide purchaser of security as to pmxhase-moncv, 870. nile of civil law upon tliis subject, 870, n. where assignee takes subject to liabilities of former owner, 871. or is in confidential relation with mortgagor, 871. oris tenant for life or surety, 871. effect of cesser of confidential relation 1)efore purchase, 872. whether mortgagee after payment is trustee within rule, 872. where in(|uiry as to circumstances of asj.iginnent, 872. manner of charging creditors who buy from themselves, 873. how evidence taken as to state of accounts, 873. where creditor's books adtnittcd as evidence, 873. 1124 INDEX. ACCOV:!iTS-continiied. Against mortgagee in postirssion, he accounts for rents during possession, 873. how far }nnvnee accounts for profits, 874. where mortgage is in form of trust deed, 874. where mortgagee is liable for not taking possession, 875. mortgagee must account to owners of equity of redemption, 875. liable to ]niisne incumbrancer after notice, 875. but not after foreclosure, 870. where allowed surplus rents paid to mortgagor, 876. where chargeable with surplus rents, 876. apportionment of rent under erroneous lease, 877. account between execution creditors where prior incumbrancers, 877. how guardian, being assignee of mortgage, accounts, 877. solicitor paying client's mortgage, 877. mortgagee in possession must generally account to mortgagor, notwithstand- ing assignment, 878. how creditor accounts where he is at first receiver, 878. assignee of tenant for life of equity of redemption does not account as mort- gagee in possession, 878. how elegit creditor accounts, 879. application of rents received during possession, 880. process of charging occupation rent, 880. when account of rents granted, 880. no account of rents after redemption, 881. form of account against mortgagee in possession, 881. possession as mortgagee must be shown, 881. effect of possession under agreement or forfeiture, 881, 882. when mortgagee must account according to actual value, 882. mortgagor should give notice that estate can be made more productive, 882. for what rent mortgagee accounts, 883. what payments for estate allowed to mortgagee, 883, 884. when insurances, 884, 885. rights and liabilities of mortgagee when in possession, 885, 886. when in possession of mines, 886, 887. liability as to repairs, 887. right to be paid for improvements, 888. Taking rvitli rests, how accounts against mortgagee are usually adjusted, 894. how taken with rests, 891:. when rests directed, 895. when not directed though possession taken without arrear of interest, 895. generally no liability to rests if none when possession taken, 896. otherwise when account settled, 896. mortgagee in occupation is within principle as to rests, 896. unless occupation is by agreement, 896. forms of directions to make rests, 89G, n. adverse claimant sul)ject to rests, 897. rests must be directed by decree, 897. ground for, ought generally to be laid in pleadings, 897. where ordered in other cases, 897. ordered, if mortgagee state accounts falsely, 898. where on footing of a former decree, 898. application of receipts between dates of rests, 898. how terms of decree for, carried out, 898, 899. Carrying on accounts, accounts carried on, if rents received after certificate, 899. how mortgagee accounts subsequently, 899. further account necessary by receipt of rent after default, 899. course when profits received at irregular periods, doubtful, 899. ACCRETIONS, to security, right of mortgagee to, 336, 337. of pledgee, 337. ACKNOWLEDGMENTS. See Limitations. INDEX. \\'25 ADMIRALTY COURT, jurisdiction of, overclaims of mortgagees of ships, 67, 08. bottomry bonds enforceable in, 85. where jjroieediiij^s in, restrained, 85, 86. order of, for payment of money has force of judgment, 105. sales by.OoO. will marshal securities according to equitable and maritime priority, 766. but both funds must be under control of court, 7G7. taxation of niortj;agcc's costs in, 976. ADMITTANCE, lord cannot compel mortgagee to take, except by custom, 20. ADVOWSON, mortgagee of, entitled to sale and foreclosure, 525. AGENT. See Factor ; Liens, Niit depending on possession. cannot generally pledge principal's property, 251. exceptions to rule, 251. may tender debt for principal, 775. effect of purchase of incumbrance by, 871. AGISTMENT, of cattle, no lien for, 160. ALDERNEY, a home port, 82. ALLOWANCES. See Pay. ANNUITY, with clause of repurchase, effect of, 18. circumstances indicative of loan, 18. included in "rents" in judgment acts, 486. rules as to interest on arrears of, 910, 913. decree for redemption of, 986. ANTICHRESE, nature and effect of, 10, n. APPARENT POSSESSION. See Reputed Ownership. what is under Bills of Sale Act, 58. APPROPRIATION, of general payments, rules as to, 778 — 781. ARREARS, rules as to interest on, 910 — 914. ASSIGNEE. Sec Accounts. of mortgagor may redeem, 312. not where he has only dry right, 314. in bankruptcy of mortgagor may redeem, 318. of security, rules as to accounts against, 870 — 873. right of, to costs, 969. ASSIGNMENT. Sec Equitable Assignment ; Mortgage, TRAxsrER of. ASSUMPSIT, where mortgagee may sue in, 397. where pawnee may sue in, 398. ATTESTATION, of warrant of attorney, how made, 98. ATTORNEY. See Solicitor. attestation by, of warrant of attorney, 97, 98. lien of, upon fruits of judgment, 140 — 148. See LlENi. and client, opening accounts between, 862. 1126 INDEX. ATTORNEY-GENERAL, -where he should be party to mortgage suit, 551, 5G4, 570. costs of, claiming ineffectually on behalf of CKnm, 970. ATTORNMENT. See Receiver. to mortgagee, or under judgment excepted from attornments, void under 11 Geo. 2, c. ID^-IG^, n. BANKER, entitled to general lien, 1G3. lien of, in resi)ect of bills discounted or accepted, 1G6, 1G7. under general \a\v merchant, 1G7. where he may jdcdgc customers' negotiable securities, 258. BANIvliUPTCY. See Priority by Statute. no lien on proceedings in, 179, 182. nor on books or certificate of bankrupt, 182, nor in favour of assignee on dividend, 182. securities for obtaining discharge of bankrupt, bad, 219. wluTC good, in hands of innocent holders, 220. j urisdiction in, over pay and pension of naval, military, and civil officers, 223. securities by banki'upt's assignees under statutory powers, 243. assignees in, of mortgagor may be sued for foreclosure, 373. Proof in, right of proof in, in respect of vendor's lien, 525. creditor proving for whole debt must generally give up security, 538. when creditor is entitled to full benefit of security under sect. 184 of act of 1849.. 539. nature of debt for which security obtained, 538. creditor must proceed to immediate sale, 539. construction of word " lien" under the act, 539. exce](tion to rule as to proof, whei-e security is on estate of a surety, 540. a])plication of exception, 540, 541. where debt is contracted without authority of creditor, 541. cases of joint and separate debts and estates, 542. ■where consideration for debt proved was interest on secured debt, 542. security abandoned by proof without disclosure, 542. after election, proof not to l)e retracted, 543. where part of estate is unsaleable, 543. where different securities are given for fvirther charge, 543. where creditor has securities belonging to debtor of bankrupt, 543. where assignees ordered to endorse deposited bill, 543. firoof where surety applies for sale, 544. proof and payment on sale by annuity creditor, 544. proof by secured creditor desiring to vote for assignees, 544. assignees cannot abandon mortgaged property except for benefit of creditors, 544. proof under bottomry or respondentia bond, 544. on policy of insurance, 544. on bankruptcy of underwriter, 545. b_v annuity creditor, 545. right of annuitant to sue surety on bankruptcy of grantor, 545. does not create notice, G34. effect of Fines and Recoveries Act upon defective assurance by bankrupt, G44— 64G. court of, cannot determine priorities or validity of securities except by con- sent, 733. right of mortgagee seeking relief in, to interest, 910. BENEFIT BUILDING SOCIETIES ACT, redemption under, 329 — 33.'5. company borrowing of building societj' may redeem on same terms as ordi- nary mortgagors, 332. jurisdiction of courts of equity not affected by act, 332. effect of redemption suit by member of, 332. monthly payments to, under mortgage, are a charge within G & 7 Will. 4, c. ?,2 . . 4G5, n. contracts of, as to interest exempted from usury laws, 93G. INDEX. 1127 BILL BKOKKIJ. See Eaxker. where lie iiiiiy pledj^'e bills held for discount, 258. cannot mux. customers' bills and pledge in bulk except by cnstom, 258, 259. BILLS OF LADING AMEXDMKXT ACT, effect of, m;]2, 84;J. HILL OF SALF>, of chattels, effect of, 22. possession of creditor not ncrcssary for validity of, 22. but continued possession of delitor fraudulent, unless notice to holder, 22. what instruments included in, under Bills of Sale Act, 57. stamps on, 11 OS. BILLS OF SALE ACT, registration under, 5;5. renewal of registration, 59. where necessity for registration under arises, 55, 59. not necessary "for validity of instrument against holder of subseiiuent bill of sale, 55. effect of execution against unregistered bill of sale, 55. requisites of formal parts of bill of sale, 55. ■where original schedule is lost, 5G. form of affidavit of witness, 56. where bill of sale subject to defeasance, condition or declaration of trust, 5G. what inelu(le(l niid nut included in term " bill of sale," 57. what included and what not in term " personal chattels," 58. where personal chattels are in apparent possession of maker of bill of sale, 58. Irish act concerning, 59. BOND DEBTS, interest on, 914. BONDS, relating to securities on property, stamps on, 1108. BOTTOMRY, nature and effect of contract of, 75, 84. bottomry bond, where assignable, 75. requisites of, 75, 7G. who may make, 76. nature of jiower to make, 7<i. may be made upon cargo, 70. but not without shij) and freight, 77. and shiix)wner is liable to owner of cargo, 77. liability of master is generally nominal, 77. repayment depends on arrival of ship, 77. owaiers not ])ersonally liable,_77. object of, is siqiply of necessities of ship, 78. boml not invalid because voyage illegal, 78. how far voyage may be beyond owners' knowledge, 78. particular voyage should be stated in bond, 78. for what purjioses money may be raised n])on, 78, 79. how far for expenses of former voyage, 7'J. liability of freight to, 79. how far loan must have been made in rt)ntemplation of bottomrj', 80, where collateral security may be taken, 80. bond may be valid for jiart of advance, 80. lenders siiould inform master of necessity for bottomry, 81. responsibilities of lender, 81. as to incpiiries and advertisements by master, 81. debtor to ship cannot lend on bottomry, 81. owners' agent may do so, SI. as to conununication by ma.ster with owner of ship and cargo, 82, S.'J. distinction between home and foreign pt>rts, 82. 1128 INDEX. BOTTO^mr -co7itmned. maritime risk necessary in bottomry, 83. bond enforceable it" voyage fraudulently abandoned, 83. should be enforced within reasonable time, 84. destroyed by change in time of payment, 84. how validity of determined, 84. where and how enforceable, 85, 86. creditor under, may prove in bankruptcy, 544. is lien upon shi]i, (J98. though ship sold as unscaworthy, 858. BRISTOL BARGAIN, nature of, 208. BRITISH GUIANA, right by law of, of person who pays off debt, 808, n. BROKER. See Bill Broker. entitled to general lien in certain cases, 163, 165. where acting for agent he has lien against principal, 165, 166, under general law merchant, 167. CALICO PRLNTTER, entitled to general lien, 163. CALLS, unpaid, power of company to mortgage, 232, 233. CANAL COMPANY, notice of assignment of shares of necessary, 588, n. CANONRY, how far profits of assignable, 224. CAPTURE, of ship, affects whole property \vithout regard to rights of neutrals or others, 858. CARGO, of whole ship will not pass by assignment of ship under " appurtenances," 67. CARRIER, not entitled to general lien except by usage or contract, 163. lien of, by usage not favoured, 164. lien of, for carriage of goods, 183. lien does not extend to person of or clothes worn by passenger, 184. ■where it extends to stolen goods, 184. is only for price of carriage, 184. where stage coachman has privilege of, 184. CERTIFICATE, of registry of ship cannot be pledged, 66. CERTIFICATED CONVEYANCER, has specific lien, 181. CESTUI QUE TRUST, when right of accrues under Statute of Limitations, 286. right of, to redeem leaseholds in Ireland, 314. when necessarj- parties to mortgage suits, 572, 573. distinction between cases of wills and of settlements, where trustees of latter have no funds, 574. or estate is represented by infant heir, 574. where cestuis que trust under settlement are infants, 575. in redemption suit where one mortgage only is in trust, 575. where one of several cestuis que trust sues, others must be joined, 575. supposed distinction between joint tenants and tenants in common not tenable, 576, 677. INDEX. lll^U CESTUI QUE THrST— continued. in redemption by representatives of deceased trustee or by survivin;,' tru-stcc, 577. in suit on mortgage made under power of investment, o77. in suit by several trustees where cestuis que trust numerous and fluctuating, 577. scheduled creditors, 578. where investment was in breach of trust, 578. equitable tenant in tail where object is to sell estate, 570. in suit by executor to realize debt due from co-executor, 579. in suit by equitable mortgagee to enforce specific performance of sale under power, 57;i. part-owner of debt secured to another person, 579. CHARGING ORDER. See Stop Order. nature and affect of, 100. what property it affects, 100, 101. how entitled and made, 101. how made absolute, 101. may be discharged or varied, 102. how made at law and in Chancery, 102. where judgment is under control of Chancery, 102. order extends to all debtor's interest, 10.3, 105. where not rescinded by court of law, 104, 105. CHARITABLE TRUSTS ACTS, securities under, 1064. CHATTELS. See Fixtures, effect of redemise of, by mortgagee, 23. where chattels not existing, incomplete, or of uncertain nature, may be mort- gaged, 23, 24. where subsequent ratification necessary, 24. where licence to take possession necessarj-, 24. effect of mortgage of future chattels in equity, 25. either bailor or bailee may bring trespass in respect of, 336. CHATTELS PERSONAL, may be mortgaged or pledged, 22. notice of securities on, when necessarv-, 586. what are personal chattels under Bills of Sale Act, 58. redemption of, 328. where redeemable on notice by mortgagee he must give reasonable notice, 477. damages of mortgagor where reasonable notice not given, 477. mortgage of, as collateral securitv, should preserve right to immediate sale, 987. CHOSES IN ACTION, how far included in stat. 13 Eliz., 197, 198. equitable assignee of, takes subject to equities, 696. CHRONOMETER, passes by mortgage of ship with appurtenances, 29. COACHMAKER, has specific lien, 180. CO-DEBTOR, has rights of surety under ilercantile Law Amendment Act, 809. COGNO"\t:T. See Warrant of Attorney. provisions as to, under 1 & 2 Vict. c. 110. .95, 98. when liable to be stamped, 1110. COLLATERAL ADVANTAGE, not allowed to mortgagee, 208, 209. M. VOL. II. 4 D 1130 INDEX. COLLATERAL SECURITY. See Policy of Insurance. COLONIES, BRITISH, English mortgage law generally prevails in, 5, n. exceptions, 5, n. COMMISSION, of partition no lien on, 182, of officer not assignable, 223. •where purchase-money of may be dealt with, 223. CO]MMISSIONER, for taking accounts has specific lien, 181. CO:^IMISSIONERS CLAUSES ACT, securities according to, 1064. co:^nriTTEE, of lunatic, his right to redeem, 308. COMPANIES ACTS, notice under, 595. statutory mortgages under, 1068. COMPANIES CLAUSES CONSOLIDATION ACT, notice under, 595. CONCEALMENT, of security, a criminal oilencc, 277, n. CONDITION. See Redemption. effect of non-performance of in mortgage by mortgagor, 7. proviso for repurchase upon non-performance of, 13. for repurchase construed strictly, H. where upheld, 15, 16. that conveyance shall be void on certain payment, 16. effect of breach of, in mortgage of copyholds, 20. performed by payment before the day if accepted by creditor, 770. or by tender, 770. CONDITIONAL SALE, or settlement, 13, 17. operation of, may depend upon circumstances, 17. no foreclosure under, 1 8. evidence of intention in making, 19. CONDITIONAL SURRENDER, nothing passes by, till presentment and entry, 20. how far lord bound to accept where made upon trusts, 20, 21. stamps on, 1114. CONSIGNEE, when mortgagee of West India estate may be, 893. CONSOLIDATION OF SECURITIES. See Priority, Equitable. CONTRIBUTION, 755—759. See Liability. CONVERSION, of mortgaged estate by sale under power, 588, n. COPYHOLD, how mortgage of is effected, 19. where cojiyholds are held for lives, 21. how far included in statute 13 Eliz., 197, 198. arc included in 27 Eliz., 203. mortgagee of, may sue before admittance, 513. when re-admittance necessary on discharge of mortgage of, 1006. when sufficient to enter satisfaction, lOOG. stamps on securities relating to, 1110. INDEX. IKU COPYHOLD ACTS, securities under, 107 CORPORAL TOUCH, how far necessai\v to vest goods in consignee, 841. CORPORATION, not bound at law by deed made nltra vires, 230. COSTS. See Decree for Payjient of Money. evidence of debt to soliritor for, 8Go. general rij;ht of mortga<,^cc to, 942. costs of proceedings at l:nv, 942. costs in respect of several estates where redemption only of one, 942. assignee of mortgagee acquires his right to costs, 'J4;^. right of defendants in suits concerning unconscientious bargains, 943. where right of foreclosure is doubtful, 943. first mortgagee not entitled to indemnity as against assignee of equity of re- demption, 943, 944. costs where right of redemption is doubtful, 944. mortgagee may lose right to or be ordered to pay costs, 944. but claim against mortgagee must be included in inquir)', 944. order for costs against mortgagee not necessarily for personal payment, 945. direction to tax mortgagee's costs amounts to direction to pay, 945. objection to order should be made at hearing, 94.'). where mortgagee made liable to costs executors tiling new bill have no costs till payment of first costs, 945. where mortgagee liable to costs is insolvent he sliall not receive general costs, 945. mortgagee liable to costs where guilty of misconduct or oppression, or has caused improper expenses, 94G. must not incur unnecessary costs, 947, 94S. liable for costs incurred by improper joinder of parties, 948. for costs incurred after full ])ayment or actual tender, 948, 949. application that mortgagee may pay subsequent costs should be made at hear- ing, 949. where nothing due at filing of bill, mortgagee bears all costs, 949. mortgagee bears costs occasioned by his denial or false suggestion, 949. and costs of proceedings where overpaid, 949, 950. mortgagee in possession has general right to costs of taking account, 950. where mortgagee or other accounting party loses vouchers, 950. Under decree for sale, costs generally paid with principal and interest out of produce, 950. mere consent of mortgagee to sale will not deprive him of right to costs, 951. otherwise if mortgagee seeks remedy actively against mortgagor's general assets, 951. same ^vhere mortgagee defendant in administration suit claims more than is due, 951. where puisne incumbrancer is the means of securing fund his costs paid fii^st, 952. mortgagee of term retains priority as to costs though reversion sold, 952. costs of owner of share of estate and his incumbrancers goes to first incum- brancer, 952. Costa of equitable mortgagee, equitable mortgagee has same right to costs as legal mortgagee, 952. and solicitor who has lien for costs, 952. but not where his charges are excessive, 952, 953. memorandum necessary to give right to, on sale in bankruptcy, 953. where assignees of bankru]>t may become liable to, 953. where memorandum will not carry costs, 953. what memorandum sufficient, 953, 954. where memorandum lust, 9">4. 4 1) 2 1132 INDEX. VO'^TS—confinved. Coxfs of eqiiitafjle mortgaffee—contmned. right to, on application for leave to bid, 954, ■where mortgagee is purchaser, 954. Of incnmhrancers under Lands Clauses Act, 955, 956. Costs and exjjenses dishui'sed, 956. what costs mortgagee entitled to he repaid, 956, 957. mortgagee's claim to, should appear on record, 957. allowance of costs disbursed is in discretion of court, 957. none in respect of improper or useless litigation, 958. nor to mortgagee in trust when fund endangered by his want of care, 959. where he accepts money paid into court, 959. or resists redemption on tender, 959. in respect of advances for protection of fund without notice of security thereon, 959, 9G0. none in respect of unnecessary act, 960. of and incident to preparing mortgage not mortgagee's costs, 960. mortgagee's solicitor has no right to, of unsuccessful negotiation for security, 960. otherwise where Couii; of Chancery authorizes mortgage of infant's estate, 960. what included in agreement for reasonable costs of intended lender, 960. liability of mortgagor and his assignee to indemnify estate against costs of protecting title, 960, 961. right of mortgagee to indemnity for legal and reasonable acts, 961. Avhere person in respect of whose interest costs were incurred might have been a co-plaintiff, 961, 962. mortgagee's acts must have been reasonable, 962, 963. where mortgagor liable for costs of assignment, 962. costs of mortgagee's assignees, 962, 963. in respect of trusts created by mortgagee, 963. Inm/rred hy loss of deeds, liability of mortgagee for such costs, 963, 964. Of assignment pendente lite, 964, 965. Of reconveyance, generally borne by mortgagor, 965. where mortgagee or his heir is lunatic, 965. where he is trustee and lunatic, 965. where estate devised to trustees or descended on infant, 966. of surrender or conveyance to equitable mortgagee, 966. arising out of suit to enforce improper agreement to assign, 967. out of improper assignment of debt, 967. of suit for assignment brought against trustee of mortgagee, 967. right of mortgagee's solicitor claiming lien to costs of mortgagor's petition for delivery of deeds, 967. when mortgagor pays costs of order for delivery of deeds in court, 968. of trustees under settlement of equity of redemption, 968. of parties made necessary by act of mortgagor, 968. of solicitor to suitor's fund where guardian to infant defendant, 969. Of disclaim iny parties, of assignees in bankruptcy and insolvency, 969. general rights of disclaiming defendants to, 970. simple disclaimer after bill filed gives no right to, 971,972. proper form of disclaimer, 971. rale where defendant has never claimed, 972. distinction where plaintiff's application to defendant to pay debt alleged and denied, 973. where assignee disclaimed equity of redemption, but claimed another interest, 974. offer to disclaim need not offer to pay costs, 974. defendant need not prove absence of interest, 974. where defendant obliged to go into evidence in support of disclaimer, 974. effect of assignment of interest before answer, 974. Costs after decree, where they may be added to debt, 975. where redemption suit heard on bill and answer, and dismissed on default in payment, 975. INDEX. 1133 COSTS— con fintied. Costs of solicitors, rig:ht of taxation in mortgage cases, 976. where trustee solicitor agrees with another to transact on agency terms, 'J76. On staying proceedings, costs of subsequent incumbrancers on offer of puisne incumbrancer t) pay debt, 976. of foreclosure bill dismissed where debt satisfied in another suit, 977. COUNSEL, effect of purchase of incumbrance by, 871. COUNTERPARTS, stamps on, of securities, 1112. COUNTY COURTS ACT, 18(55, jurisdiction oF, over foreclosure and redemption suits, 263, n. ordinary relation between mortgagor and mortgagee not a tenancy within, 470. judgments of, after execution aided in equity, 486. execution by bailiff of, 490, n. equitable jurisdiction of, over securities, 1079. COVENANT, for payment not necessary part of a mortgage, 7, 10. may explain intention. 10. to charge land where it will amount to equitable security, 42 — 44. absolute, not to call in money for certain period, suspends mortgagee's remedy, 373, 374. where mortgagee may sue in, 395. where implied in mortgage, 396. in mortgages of public works, 396. where implied, 396, 397. mortgagee's remedy where no covenant, 397. assignee cannot sue on breach of personal, 397. damages for breach of, to keep up policy, 398. in mortgage to building society to pay subscriptions, not extinguished by statutory receipt, 398. by mortgagor not implied in joint lease by him and mortgagee, 476. effect of, in joint lease by mortgagor and mortgagee, 476. money covenanted to be charged is "estate " within judgment act, 485. stamps on deeds of, relating to securities, 1111. CREDITORS, where general of mortgagor may redeem, 316, 317. CROPS, and produce of, right to, 807, 868. CROWN, right to redeem in case of forfeiture, 309. salvage liens have priority against, 526. sale where estate is vested in, 527, 528. is subject to prior equities, 715. proceedings in case of extent after bankruptcy, 716. marshalling against, 764. account of rents against, 880. CROWN DEBTS, entered up against mortgagee paid off where not available, 90. registration of judgments and securities for, 116. of execution in respect of, 117. re-registration of, 115. rights of crown as to, 714, 715. statutory discharge of, 1089. n 34 INDEX. CURTESY, toiiant hy, liis right to rcdeoin, 307. must keep down interest, 'JO'J. CUSTOM, of London, as to recovery of debts in Lord Mayor's Court, 94- n, DEBT, where mortgagee may sue in, 395, 397. where pawnee may bring, 398, 399. mortgagee not bound to assign, 1005. DECREE OR ORDER FOR PAYMENT OF MONEY. See Notice by Records. has force of judgment under judgment acts, 105. under bankrupt acts, 111. how process obtained, 106. what kind of decree or order within act, 106, 107. when and how enforced, 107. nature of proceeding, 107. to what costs act applies, 107. effect of orders to enter up judgment for taxed costs, and to tax costs, 108. where judgment is entered uj) on contingent debt, 108. on annuity, 108. order must be for payment to creditor himself, 108. does not apply to money ordered to be paid into court, 108. DECREE, form of, where several moilgagees in succession, 979, 980. where first mortgagee is part-owner of equity of redemption, 981. in redemption suit by puisne mortgagee where portions of estate previously mortgaged separately, 982. company disputing security on shares as forfeited, ordered to redeem as puisne mortgagees, 982. how benefit of set-off given to mortgagor, 982. where one estate mortgaged as surety for another, 982, 983. where wife has separate right to redeem, 983, 984. in cases of derivative mortgage, 984, 985. where some co-owners agree to sale, and purchaser pays off mortgage on entirety, 985. for redemption of annuity, 986. where mortgage comprises realty and personal chattels, 986. where security on policy contains trust of proceeds, 986. in suit by mortgagee on behalf of himself and other creditors, 987. prefatory matters and form of decreeing redemption and foreclosure, 987, 988. on non-payment, 988. in ca.se of sale, 988. where mortgaged estate sold under extent, 989. for sale, form of, 1011. See Sale. DEEDS, mortgagee in fee entitled to, ,337. tennor for years not entitled to those relating to freehold, 337. right of mortgagee of tenant for life, 337. right of tenant for life subject to mortgage for term, 339. special grant of or covenant to deliver, 338. how mortgagee may lose right to for want of grant, 338. effect of delivery of mortgage deed with oljject of transferring debt, 339. mortgagee need not give up deeds till actual payment or tender, 340. rule extends generally to creditors holding deeds, and to holders of liens, 340. and to persons otherwise Ijound to produce, 340. mortgagee not generally bound to produce deeds, 341, 342, 343. where he mu.st produce them, 341, 342. mortgagee must produce where mortgagor was bound to do so, 343. no inspection in favour of intended transferees, 343. INDEX, 1135 BEEDS-continiied. wlieu holder of lien may refuse production, M',1. when rule as to prodmtion applies to colonial estate, 344. where estate is to be sold, ^44. when documents are not in power of mortgagee, 344. whether right to resist production applies to niortgjige deed, ;544, ;!4.j. mortgage deed must i)e produicd in hankrupte^', ;545, 34(j. order to produce menioraiidum of deposit at connnon law, I54G. order for inspection uiuler ICvidence Amendment Act, '.iUi. no production of deed where mortgagee has bad title, 347. production at hearing for evidence, 347. right of mortgagee of remainderman, 347. mortgagor cannot refuse production on ground of mortgagee's privilege, 348. where no general right to [(roduction, none ordered on cross-bill, 348. order to produce deed all'ects every thing dcjK'nding ujion it, 348. order for production of, on sale for recovery of crown debts, 530. when equitable mortgagee may retain against legal incumbrancer, 671. effect of mortgagee's neglect as to getting or giving up possession of, 846—852. possession of, may be test of right, 847. may be recovered at law by owner from bond fide jiurchascr without notice, 847. mere possession of deeds by mortgagor will not postpone mortgagee, 847. inference from mortgagee's neglect to obtain or inquii-e for, 847. sun-enderee of copyholds not inquiring for, postponed, 848. where neglect is accom])anied by fraud, 848. effect of failure to obtain deeds "by neglect or deceit of mortgagor, 848. where mortgagor makes excuse for non-production, 849. where mortgagor is not entitled to hold or is bound to retain deeds, 849. where mortgagee ol)tains deeds with notice of inijiroiicr custody, 850. same principles a])i)lied where mortgagee has given up deeds, 851. where given up without fraud or neglect, 851. where it cannot be discovered how mortgagor obtained deeds, 852. liability to costs incurred by loss of, 963, 964. ordered to be delivered on payment of debt into coirrt before settlement of accounts between mortgagee and sub-mortgagee, 985. duty of mortgagee to have them ready on redemption, 1030. delivery provided for by decree and order to stay proceedings at law, 1031. extent of mortgagor's right, 1031. where one mortgagor redeems, mortgages transferred by single deed, 1031. where only part of estate reconveyed, 1031 . as to affidavit of documents by mortgagor, 1031. as to direction in decree for delivery of deeds, 1031, 1032. where foreclosure decree made without order against holder of deeds, 1032. on sale of ship in Admii-alty title complete without delivery of register, 1032. where no order for deliverv of register against agent of foreign govermuent, 1032. ordered in case of British vessel, 1032. inquiries where deeds are lost or stolen, 1032. nature of compensation allowed for loss of, 1033. indemnity only where deeds stolen, 1033. or where they only cannot be found, 1033. mortgagee directed to deliver on oath attested copies of destroyed documents, 1033. where deeds lost by one of several mortgagees, whose representatives arc not parties, 1034. where deeds arc retained by attorney of wife administratrix, 1034. compensation niav be given as general relief though indemnity only asked, 1034. scale of compensation, 1034. DEFEASANCE, stamps on, 1115. DEFECTIVE ASSURANCES, where defective legal operation of mortgage made good, 641. 1136 INDEX. DEFECTIVE ASSURAl^CES—coidiiiued. where all interests are equitable, 642. where mortgagor with bad title afterwards acquires new one, 642. effect of mortgagor's covenant for further assurance, 642. where interest of conveying ]iarties mistaken, 643. W'here defective assurance made by tenant in tail, 643. provisions of Fines and Recoveries Act as to, 643. of Bankruptcy Consolidation Act, ] 849 . . 644—646. where bankrupt not compelled to exercise power of disposition under sect. 64, 646. where judgment debtor ordered to disentail, 646. of ships not according to statute, not helped in equity, 646 — 649. questions as to rights under may be settled in mortgage suits, 649. DELIVERY OF POSSESSION. See Reconveyakce. mortgagee boimd to restore on redemption, 1001. DEMURRAGE, shipowner has no lien for, 188. DERIVATIVE, mortgage, decree in case of, 984. where derivative mortgage made after decree, 985. DESTRUCTION, of security, effect of, 858. DETERIORATION, mortgagee's liability for, 886. DEVISEE, of equity of redemption may redeem, 319. DISCHARGE. See Abandonment ; Destruction ; Fraud ; Merger ; Negligence ; Payment ; Release ; Stoppage in Transitu ; Waiver. of mortgage, entry of on register, 50. how it should be effected, 781, DISCLAIMER, where it gives right to costs, 969 — 974. where bill dismissed against defendant filing, 1039 — 1041. DISCOVERY, right to, in equity in cases of immoral securities, 219, 221. DISMISSAL, of redemption bill on non-payment, 1037. where notice of motion for proper, 1037. where it operates as foreclosure, 1038. in suit to redeem annuity, 1038. takes place where right of redemption repelled, 1038. or against defendant not liable to be foreclosed, 1038. or if plaintiff refuse to ask for accounts, 1038. against disclaiming defendants, 1039. when disclaimer sufficient for the purpose, 1039—1041. DISTINCT INSTRUMENTS, of mortgage, stamps on, 1112. DISTINCT SUMS, stamps on security for, 1117. DISTRESS, effect of grant of power of, 469. distrainer of goods has no lien after replevin, 821. DISTRINGAS, when it should be placed on fund, 593. DIVORCE, COURT OF, order of, not a judgment within 1 & 2 Vict. c. 113, semble, 106, n. INDEX. 1137 DOCK WARRANT, inriorsemeiit of, will not pass property, 833. DOWRESS, her right to redeem, 307. to exoneration out ot" husband's estate, 740. DUPLICATE, instruments of security, stamps on, 1112. DYER, has no general lien but by usage or contract, 163. has specific lien, 180. ECCLESIASTICAL BENEFICES, charges upon, forbidden by statute, 224, 487. sequestration of, may be obtained by assignees in bankruptcy, 224. provision for service of cure, 225. assignees have no right until sequestration, 225. securities upon, under Gilbert's Act, 225, 226. under Benefices Plurality Act, 1 & 2 Vict. c. 106.. 1062. charges upon, in Ireland, 220. not included in judgment acts, 487. how far warrant to enter up judgment on, is void, 487, 488. ELEGIT. See Execution ; Judgment. why writ of execution against land so called, 88, n. nature of interest of tenant by, 718, n. EQUITABLE ASSIGNMENT, nature and effect of, 45. may be verbal, 45. no particular form necessaiy, 45. requisites of, 45, 46. rules as to concuiTence of holder of fund, 46, 47. debtor with notice of, bound to pay assignee without indemnity, 47. but only where his title is complete, 48. costs of, by mortgagee, 962. where made pendente life, 964, 965. equities, how far recognized by Merchant Shipping Acts, 64, 65. ESCHEAT, right of redemption in case of, 310. " ESTATE," effect of word in mortgage of estate and undertaking, 232. ESTOPPEL, where mortgagor's lease good by, 473. mortgagor's interest by, passes by descent and purchase, 473. even where estates are equitable, 473. in case of copyholds, 473. no estoppel where mortgage disclosed, 473. how tenant may defend action by mortgagor without denial of title, 474. where doctrine of, does not apply against tenant, 474. EVIDENCE, how security proved at hearing, 392. where witness becomes entitled to security, 393. when payment of consideration must be proved, 393. where validity of security doubtful, 393, 394. practice where lunacy of mortgagor alleged, 394. of debt and security, 865, 866. EXCHEQUER, sales in, for crown debts, 530. EXECUTION. See Garnishee Order. against pledge, 73. 1 1 38 INDEX. EXEC\]'n01^— continued. registration of, in respect of crowni debts, 117. registration of, under 27 & 28 Vict. c. 112.. 119. what real estate may be taken under 1 & 2 Vict. c. 110, s. 11.. 484. provision as to coi)yh(>lds, 4S4. lands need not be desciibcd by metes and bounds, 484. what personalty niay be taken under judgment acts, 489, 490. creditor must indemnify sheriff if he is required to sue, 490. effect of seizure by sheriff in case of goods and chattels real, 490. only goods in debtor's j)ossession can be seized, 490. and generally only what can be sold, 491. limited interest of debtor may be sold, 491. balance in hands of late sheriff cannot be taken, 491. property seized not available for creditor of execution creditor, 491. sheriff not compelled to sell where rent due, 491, 492. execution against goods does not prejudice bond Jide title of third person without notice, 492. creditor under, may buy from sheriff, 502. eft'ect of, upon creditor's other remedies, 817, 818. effect of, u]50u creditor's rights in bankruptcy, 818. entry of fact of execution by Master of Common Pleas, 819. EXECUTORS. See Trustees. securities by, 244, 245. power to mortgage or pledge personalty, 249. EXEMPTIONS, from stamp duty, 1113. EXONERATION. See Liability. EXTENT. See Crown; Crown Debts. right of crown where mortgaged estate sold under, 989. EXTORTION, effect of, upon security, 208. how jurisdiction over, affected by repeal of usury laws, 208. FACTOR, acting as broker has no lien as factor, 162. entitled to general lien, 1G3. nature and extent of his lien, 164. how far he might pledge principal's goods before Factors' Acts, 251. in case of tortious pledge, 251. directions not amounting to authority to jdedge, 252. effect of statute 4 Geo. 4, c. 83.. 2.52. 6 Geo. 4, c. 94.. 252. applied only to documents intrusted to factor, 253. 5 & 6 Vict. c. 39 gave validity to .securities by agents intrusted with goods or documents of title thereto, 253. Stat. 6 Geo. 4 required possession to be that of a factor, 254. neither this nor statute of Victoria apply to servant intrusted with chattels, 254. not necessary that sale of goods should be agent's ordinary occupation, 254. contracts in consideration of transfer of other projjerty subject to security, good, 254. substitution of goods for original pledge, 254, 255. transactions only jtrotccted by act where hond fide and without notice, 255. when mala fidrx inferred, 255. loan to pay joint debt of factor and another not j)roteeted, 255. pledge for existing debt due from agent not protected, 256. meaning of documents of title in 5 & 6 Vict. c. 39.. 256. when agent is intrusted within act, 256, 257. what acts are pledges or liens within act, 256. when agent is " possessed " within act, 256. when loan is deemed to be made on security of goods or documents within act, 256. INDEX. • 1139 YACTOll—cnntiniud. what is a "contract" or "advance" within act, 257. civil respon.siiiility of agent not afft-cted, ^o?. remedies of owner of goods pledged hy, without authority, 257, 258. pledges by, before 5 & 6 Vict. c. au, not made valid thereby, 258. FARRIER, lien of, 183. FELLOWSHIP, of college, how far profits of assignable, 223. FEME COVERTE, bound by notice, 595. FISHERIES ACTS, securities under, 1096. FIXTURES, where mortgage affects such as are subsequently acquired, 25, 26. exception as to trade fixtures, 26. qualifications arising from terms of security, 26. rules concerning, apply to mortgages of leasehold as well as freehold, and to equitable mortgages, 27. what passes under term " fixtures," 28. mortgagee's right to prevent removal of, 334. FORECLOSURE. See Mortgagee ; Order absolute ; Payment. is always in default of redemption, 2. where incomplete securit}- remains personal assets of mortgagee, 372. none till default in jiayment, 373. time for, may be limited, 373. suit for, is for recovery of land or rent under Statute of Limitations, 374, 375. See Limitations. how decreed in case of security with illegal agreement, 395. mortgagee of chattel entitled to, 498. bill ought to be framed for, 514. where it may be had on hill asking general relief, 514. owner of j^art of debt cannot have, for part of estate, 514. right of remains where receipt is given for debt, but bills dishonoured, 514. unless bills taken in payment, 515. right of, where mortgage is by trustees under power, 515. right to, not affected by power of sale, 51,"). no right of, under charge without condition, 515. nor upon mere trust for sale with covenant to pay, 515. is strict right of legal mortgagee, 517. and of equitable mortgagee who can call for legal security, 518. mortgagee of equity of redemption entitled to, 518. where creditor may waive right to legal security, 518. whether equitable mortgagee by deposit without agreement for mortgage, entitled to, 51 S, 521. result of authorities, 521. right of judgment creditor to, 522. improper where mortgagor interested in security, 527. none against crown, 527. nature of decree for sale in Ireland like that of foreclosure decree, 529. not necessary consequcmc of default in payment, USO, 9S1. may be opened after inrolmeut of decree or order absolute, 995. See Pay- ment. not opened in part, 999. in favour of person foreclosed by his own consent, 995. grounds for opening after inrolment, 995, 996. form of order, 096. where mortgagee uses other remedies after foreclosure, 997. effect of purcliase of estate by mortgagee, 998. where decree obtained by false e^ndence or fraud, 999. after release of equity on secret trust, 999. 1140 ■ INDEX. FORECLOSURE— continued. in case of great excess of value of estate with other circumstances, 999. excess of value alone not sufficient, 999. on evidence of agreement, 1000. not opened on account of devise of estate as a debt, 1000. effect of direction in decree for sale to i)ay surplus to tenant for life, 1000. where right of redemption not insisted on at hearing, 1000. on filing new bill after acquiescence in decree, 1001. where incumbrancer seeking must give security for costs, 1001. FORFEITURE, right of cro\vn to redeem imder, 309. FRAUD, omission by, of mortgage requisites, may be supplied, 11, 12. security not impeachable for, by defendant in foreclosure suit, without cross suit, 355. security partly valid not set aside, 355. where priority lost by, 846. See Priority, Loss of. FRAUDULENT CONVEYANCE, how account taken in case of, 879. FRAUDULENT SECURITIES, when void against creditors under stat. of 13 Eliz., 194. not against assignee without notice, 194. when void against purchasers under 27 Eliz., 194. effect of, in bankruptcy, 195, 196. transactions and executions with and against bankrupt when valid, 196. security bj deposit before act of bankruptcy good, 197. execution must be perfected by sale, 197. rule does not apply to sequestration against ecclesiastical benefice, 197. Stat. 13 Eliz., how far applicable to copyholds, 197, 198. and to choses in action, 197, 198. how far assignment affects rights of subsequent creditor at law and in equity, 198. right of subsequent creditor when assignment set aside, 199. what consideration will support deed under statutes, 199. imder 13 Eliz. transaction must be bonajide, 199. when fraud may be infen-ed, 199. how far deed may be good though creditors defeated, 200. subsequent .security under prior agreement good, 200. coercion by favoured creditor not necessary for validity, 200. property may be delivered secretly, 201. creditor may be debtor's solicitor, 201. to what extent debtor may assign his property, 201. where present advance saves deed, 201. power to assignee to carry on trade, 202. consideration of bygone debt bad, 202. where existing security is discharged, 202. effect of deed may be shown by evidence, 202. where lender has no notice of fraud, 202. construction of 27 Eliz. c. 4. .203. consideration must be valuable, 203. circumstances which avoid deed under, 203. evidence of effect of deed, 203. equitable mortgagee is a purchaser within, in equity, 204. by whom fraudulent deed may be set aside, 204. where deed remains in hand of debtor's agent, 204. effect of continued possession of chattels by assignor, 205. inference of fraud arises from possession of title deeds, 204. effect of reputed ownership of chattels in bankruptcy, and under statute of Elizabeth, 205. possession not fraudulent where delivery to assignee inconsistent with trans- action, 205. INDEX. 1141 FRAUDULENT SECVmTIT.^-continiied. other circumstances under which assi^riior may hold possession, 206, afiainst whom assif;nmciit good, thou^li not followed by possession, 20G. ships at sea and unfinislied chattels, li()7. goods pledged by vendor, 207. provisions of 24 & 25 Vict. c. 90, ss. 75, 70, as to fraudulent jjledges, 408. FREIGHT, how far assignable without regard to shipping acts, 67. cargo of whaler not incident to ship as, 07. where subject of lien, 185 — 191. priority under mortgage of, 095, 096. liable for expenses of voyage, 097. when master of ship nia\ refuse delivery except on daily pavment of, 840, n. FULLER, has no general lien but by usage or contract, 163. FURTHER ASSURANCE, stamp on, 1119. FURTHER CHARGE, stamp on, 1114. FURTHER SECURITY, stamp on, 1118, 1119. FUTURE ADVANCES, stamps on securities for, 1116. GAGE, effect of, under French law, 5, n. GAMING, securities on contracts of, 217. where good in hands of purchaser without notice, 218. equitable I'emedies against, 219. liability to discovery in respect of, 219. GARNISHEE ORDER, judgment creditor may examine debtor as to debts due to him, 492. order to attach debts, 492. order «?*•/ against garnishee, 493. where debt attached belongs to third person, 493. execution against garnishee, 49.'!, 494. what debts may be attached, 49;5, 494. rent may be, but not in Mayor's Court, 493. where debt is due to estate in course of administration, 494. creditor's right where garnishee taken in execution, 494. where debtor has been taken, 4i)4. debts bound in garnishee's hands by notice, 494. proceeding against garnishee where liability disputed, 495. what acts will discharge garnishee, 495, 490. rales in Lord Mayor's Court as to debtor's right to take objections, 490. custom relating to, in London not applicable to debts not vested in defen- dant, 497. GENERAL AVERAGE, lien for, 188. GILBERTS ACT, securities upon benefices under, 225, 226. GUARDIAN, where transactions with ward set aside, 211. his right to re<leem, l?OS. may tender deiit for ward, 775. effect of purchase of incumbrance by, 871. when assignee of mortgage, how he accounts, 877. GUERNSEY, law used in, 5, n. is a home port, 82. 1142 INDEX. HALF-PAY. See Pay. HEIR-AT-LAW, of mortgagor may redeem, 310. •\vheu on presumption of ancestor's death, .319. must adhere to alleged title by descent, 323. right of, to redeem, destroyed by conversion of estate by ancestor, 324. of wife redeeming, bound to pay off further advance to husband, 324. one co-heiress may sue the other, being devisee of the mortgage, 324. heir and devisee should not be co-plaintiffs, 324. right of posthumous heir against mortgagor's daughter, 325. of mortgagee is trustee for executor, 371. foreclosure by, good against mortgagor though executor entitled, 372. entitled after release or foreclosure, 371. right of, where foreclosure is open for fraud or otherwise, 372. HEIRLOOMS, inspection of, ordered in favour of trustees, 347. HERITABLE BONDS, stamps on, 1114. HORSES. See Innkeeper ; Stable-keeper. HYPOTHECA, effect of, under Roman Civil Law, 5, n. HYPOTHECATION, right confeiTed by, and application of under English law, 5. HYPOTHEQUE, effect of, under French law and other foreign laws, 5, n. IDIOT, stranger may tender debt for, to save forfeiture at law, 775. ILLICIT INTERCOURSE, securities for, 215. IMMORAL SECURITIES, security for immoral consideration void, 215. effect where it is for past or future illicit intercourse, 215, 21G. marriage brocage securities, 216. reward for influence in disposal of property, 217. for procuring, or on sale of public office of trust, 217. See OFFICES. for gaming and wagering considerations, 217 — 219. for obtaining discharge of bankrupt, 219, 220. for obtaining withdrawal of bill in parliament, where good, 220. for debt arising by robbeiy, good, 220. for ceasing from illegal act, where good, 220. right to discovery in cases of, 221. IMPROVEMENTS, when mortgagee allowed value of, 888. securities under Improvement Acts, 1080. INCLOSURE ACTS, securities under, 1087. INFANTS, money of, not generally lent on mortgage by Court of Chancery, 250, n. bound by notice, 595. where mortgage paid out of personalty debt kept alive, 759. effect of fraud by, 857. may be foreclosed, or a sale directed against him, 1018. fonnerly entitled to show cause after coming of age, 1018. whether entitled since passing of Trustee Act, 1018 — 1023. effect of giving day to show cause, 1023. form of decree giving day, 1023. no sale against, unless ff)r infant's benefit, 1024. vesting orders of trust and mortgage estates of, 1024 — 1030. when day given in order absolute, 10;'7. statutory mortgages of estates of, 1080. INDEX. 1143 INNKEEPER, lien of, lor keep of horse, 160, 183. for l)oanl, &c., of finest, IHIl who entitled to lien as innkeeper, 183. where lien arises, and extent of it, ls;{. where good a;;ainst proiierty not ljelon{;in<^ to guest, 182. not bound to in(|uire into necessity for supplies furnished, 184. where he has lien for money lent, 184. lien of, docs not extend to IxKly or clothes worn by guest, 184. cannot generally sell under lien, 499. INSPECTION. See Dekds ; Heirlooms. INSURANCE. See Policy of Insurance. of lives of cestuis que rie cannot be compelled by court on mortgages of estates for lives, 21. assured under policy of, may prove in bankruptcy, 544. when payments for allowed, 884, 885. INSURER, of ships, right of as mortgagee to policies not affected by Shipping Acts, 60. INTEREST. See Set-off ; Usury. no particular rate necessary in bottomry, if maritime risk incurred, 83. allowed at 41. i)cr cent, on consignees' payments, 133. when arrears of may be tacked, (508. not payable on mere contract for loan, 900. except by course of trade, 000. payable generally on bond and mortgage debts, 900. whether on security iiy deposit, 900. may be charged under power to create charge, 900. where under testamentary chai-ges and trust deeds, 901. under award, 901. arises on mortgage from day to day, 901. effect on, of public calamity in Ireland, 901. right to, of person with limited interest, 901. effect of agreement to pay to certain time, 902. how charged against mortgagee holding over or resisting redemption after payment, 902. mortgagor must pay up as price of indulgence, 902. where scrivener is answerable for, 903. where allowed to mortgagee for expenditure generally, 903. for working mines, 904. for repairs, 904. on debt which would have been satisfied but for mortgagee's wrongful act, 904. whether prior incumbrancer loses against ]j}tisn£ incumbrancer liv laches only, 904. mere neglect of incumbrancer to demand does not prejudice right against re- mainderman, 905. adult tenant in tail not bound to keep do\vn, 905. personal representatives of adult tenant in tail who has kept down interest cannot charge reversion, 905. husband of tenant in tail cannot coino ujiou estate for, 905. except after wife's death, 905. infant tenant in tail not lioinid to keej) down, 905, 908. tenant for life or years must kee]i down interest, 905, 90G. notwithstanding absolute power of appointment, 906. not discharged by procuring assignment of mortgage, 906. assignee and judgment creditor of teinint for life subject to same ccpiity, 906. right of reversioner as against tenant f<ir life not jiaying interest, Wi\. where reversion chargeable with arrears, rents being insufficient, 906, 90". where mortgagee allowing interest to run in arrear, ]iurehases estate of tenant for life, 907. where estate is partly in possession of tenant for life, and parti} of person having jirior charge on inheritance, 907. 1144 INDEX. I'^TEREST—continued. liability of tenant for life in remainder as to arrears of prior tenant for life, 'J07,"908. liability of tenant for life in case of, and as to arrears of annuities, 908. where arrears of rent applicable to interest are i-eceived bv tenant for life, 908. right to, of representatives of wife on monies due from husband's estate, for which she was surety, 909. husband and wife not bound to pay for benefit of wife's heii', 909. tenant by curtesy must keep down, 909. order to receiver to pay, is not appropriation of rents, 909. mortgagee who comes to Court of Bankruptcy for realization of security not generally entitled to, afterdate of fiat, 910. On arrears of annuities, not generally allowed, 910. exceptions to rule, 911, 912. where annuitant is in possession of rents, 912. where in consequence of dispute as to annuity money has been brought into court, 913. effect of Consolidated Order xlii, r. 10. .91.3. of 3 & 4 Will. 4, c. 42, s. 28 and 1 & 2 Vict. c. 110, ss. 17, 18.. 914. On bond debts, generally carry none beyond penalty, 914. exceptions, 914. where bond is tacked to another security, 914, 915. where creditor was a trustee in possession, 915. On judgment debts, before and under 1 & 2 Vict. c. 110, ss. 17, 18, and 3 & 4 Vict. c. 105, s. 26.. 915, 916. under 23 & 24 Vict. c. 127, s. 27 (Attorneys and Solicitors Act), 916, Conversion of, into principal, rule as to conversion of arrears of, 916, 917. none by mere assent of mortgagor to account, 917. where agreement to convert inferred, 917. on arrears or fines for non-payment not allowed without contract, 918. formerly no contract for conversion good, before interest actually due, 918. original contract for, now considered valid, 919. exceptions to original rule in case of mercantile transactions, 919, 920. effect of changes in usury laws upon, 920. interest on arrears when mortgage discharged, 920. mere notice by mortgagee will not turn arrears into principal, 920. requisites of agreement, 921. where infant heir of mortgagor bound by, 921. agreement in favour of first mortgagee will not bind later incumbrancers of whom he had notice, 921. Subsequent interest, practice as to allowance of subsequent interest on enlargement of time for redemption, 921, 922. computed on principal only both in administration and foreclosure suits, 922. when on principal and costs, 922. where infant heir revived and carried on creditors' suit, 922. from what time, where it runs on whole sum found due by certificate, 923, where not resened by decree it is matter of rehearing, 923. Arrears of, vnder Statutes of Limitation, under 3 & 4 Will. 4, c. 27, s. 42, and 3 & 4 Will. 4, c. 42, s. .3, and 3 & 4 Vict. c. 105, s. 32 (Ireland), only six years' arrears recoverable against land, 924, 925. unless in case of express trust, 925. but twenty years' arrears by action on specialty, 925. effect of Da Vigier t. Lee and Hunter v. Nockolds, 925, 926. to what annuities sect. 42 of 3 & 4 Will. 4, c. 27, applicable, 9?6, 927. what interest can be retained where, after sale by mortgagee, mortgagor sues for surplus purchase-money, 927. words " the person by whom the same is payable" denote all persons against whom arrears may enforced, 927. INDEX. 1145 ll^TERVST— rout; niied. Arrears of, under Stntiites of Limitation— vont'muoii. mortgaj^or's ackn()\vlcd;;mciit will not ineserve rij^lit of first incumbrancer against later ones, 1)27. judgment creditors can only have six years' interest, 028. effect of excejition in 3 & 4 Will. 4, c. 27, s. 42, as to possession or receipt of profits of land, 928. court will not enforce obligation indirectly where conse<iuence would be evasion of statute, 'J21t. ap])!ication of statutes to suits to recover money, 020. mortgage of canal works and rates is within '6 He i Will. 4, c. 42.. 030. not turnpike tolls, 030. effect upon operation of statute of finding that estate is subject to incum- brance, 030. lidte of interest, interest runs at law as damages after time for redemption, though not re- served, 930. how higher rate of interest reserved in default of punctual payment, 930. when condition for punctual ])aymcnt must be strictly ])crformcil, 031. whether interest may be raised as price of forbearance, 031, 033. Lord Eldon's view of the doctrine, 033. practice of court where no rate of interest fixed, 033. in case of bottomry bond, 033. where absolute deed cut down to security, 033. in case of further advances, 034. as to money expended, 034. unwritten agreement for reduction is good, 034. where higher rate i)aid than reserved excess may be deducted, 934. mortgagee in j)ossession only allowed lower rate reserved, 034. general rate allowed by court, 034. where mortgagee in possession holds over, 934. When interest ceases, mortgagee entitled to six months' interest from date of notice, 936. where mortgagee assents to sale in administration suit, 037, 038. where mortgage not discharged at time fixed by default of mortgagee, 939, 940. where mortgage not discharged through mistake, 941. when interest ceases from tender, 941. actual tender necessary, 041. executors' bond to accepc tender before probate, 041. mortgagee does not lose interest after tender, 941. where inquiry necessaiy on dispute as to right to redeem, 941. IN\^OICE, will not pass property in goods, 833. ISLE OF MAN, lapse of estate in, on non-redemption, 283, n. JERSEY, law used in, 5, n. is a home port, 82. JOINT CREDITOR, ])ayment to one discharges debt at law, but not in equity, 778. JOINT DEBTOR, discharge of one releases all, 778. JOINT STOCK COMPANIES. See Companies Acts; Jldgment Credi- tor; Mortgagee; Receiver. statutory mortgages by, 1068. JOINT TENANTS. their right to redeem, 304. JOINTRESS, her right to redeem, 306. M. VOL. II. -i E 1146 INDEX. JUDGMENT. See Charging Oedek ; Notice BY Record ; Priority ; Re- gistration. nature and effect of judgment debt, 87. extent of, under stat. Westminster 2.. 87, 88. execution upon, under Statute of frauds, 88. extent of charge under 1 & 2 Vict. c. 110. .89. restriction ui)on proceeding under, in equity, 89. where right to jn-et'ei-ence under, in bank.rui)tcy, 89. where not available against mortgagee paid off under 18 & 19 Vict. c. 15.. 90. under 23 & 24 Vict. c. 38, A\Tit of execution must have issued and been registered and executed within three months from registration, 91. under 27 & 28 Vict. c. 112, lauds must have been delivered in execution, 91, • 92. under 23 & 24 Vict. c. 38, execution necessary against equitable interests, 92. consent order to enter up must be filed, 99. meaning of, in 3 & 4 Will. 4, c. 27, s. 40. .377. is direct charge upon debtor's interest, 485. where it binds purchaser's interest before conveyance, 485. where debtor's interest against pmxhasers under decree for sale, 485. binds money covenanted to be charged on land, 485. where mortgage debt and interest, 485. not purchase-money of real estate converted, 485. are entered of day when signed, 712, n. may be ordered to be entered nunc j^ro tunc, 712, n. release of, 783. where only ]5art of land is released, 783. interest on, 915. discharge of crown debts, 1089. extension of j udgment acts to Palatine Courts, 109. removal of, from inferior to superior courts, 109, 110, 111. registration of, necessary upon removal, 110. validity of, when removed, assumed by superior court. 111. Yulu7itarij, treated as in invittim, 4. consequences of adverse character attributed to, 95. recognition of voluntary character of, 95. provisions as to warrants to confess judgments and cognovits under 3 Geo. 4, c. 39. .95. under l' *& 2 Vict. c. 110 . . 92, 9G— 98. JUDGMENT CREDITOR. See Garnishee Order. of mortgagor may redeem, 314. of public works only entitled to receiver against land, 35G. may have execution against chattels, 35G. subject to receiver where appointed, 423. but where debenture creditor is trustee, 357. and right limited by Railway Companies Act, 18G7..357. the effect of scheme filed under that act, 357. right of, to receiver under Municipal Corporations Act, 422, n. has same remedy in equity as if charge agreed to be made, 485. remedy of, against debtor's equitable interest in term, 485, 48G. right of, independent of acts, is legal, 486. and not assisted in equity, 48G. unless during year from entering up execution is issued, 48G. right of, to sale, 521—52,3. in case of pul)lic undertakings, 524. how he accounts, 879. form of order, 879, n. JUST ALLOWANCES, where surplus rents paid to mortgagor before notice are, 870. in decree do not authorize allowance for imi)rovements, 890. LANDS CLAUSES ACT, redemption under, 1090. INDEX. 1147 LAND TAX, payments for, allowed, 883. LAND TAX KEDEMl'TION ACTS, securities under, 10'J4. LAND TRANSFER ACT, settlement of priorities under, 708. LEASE. See MoRTGAoon ; Mortgagee. how far nu)rtj,^iiL,'ee allowed to take from mortgagor, 209, 210. renewal of, by mortgagor, enures to mortgagee for purpose of security, 336. by mortgagee enures to mortgagor on redemption, 337. where renewed improperly, 337. lease of mortgagor after mortgage good against tenant by estoppel, 473. lease good by esto])pel made good by mortgagee's conveyance, 473. •where mortgagee of, not atfccted by judgment sulfered in ejectment by laud- lord, r>8!), n. payments for renewals of, allowed, 883. LEASEHOLDS, for years, how mortgaged, 21. bound by judgment acts after execution, 48G. LEGAL ESTATE. See Priority ; Tacking. LEGATEE, of legacy charged on land may redeem, 319. LESSEE, of mortgagor may redeem, 314. LEX ANASTASIANA, rights of assignee of security under, 870, n. LIABILITY. Uxoneration, personalty of borrower generally liable for debt on simple contract, unless bond or covenant given, 735. personal lialulity after tran.sfer, 735. liabilitv of estate, 735. linl)ility of personalty not affected by mortgagee's election of remedy, 735. old rule as to liability of personalty as between mortgagor's representatives, 73(!. principle extends to pledged chattels specifically devised, 73G. to what securities princi])le aiijilies, 737. rule altered by Locke King's Act, 737, 752 — 755. personalty of heir, devisee or jjurchaser of mortgagor not liable, 738. nor of mortgagor under a power, 738. nor of surety, 738.- where wife and husband treated as surety, 738. presumption that wife's estate is mortgaged for husband's benefit, 738. when he pays oif the mortgage, 739. otherwise when wife inherits mortgaged estate, 739. or mortgages before marriage, 739. principle carried out in husband's favour, 739. where estate of wife not entitled to exoneration, 739, 740. dowress takes subject to husband's mortgage, 740. exonerated as to debts not charged on land, 740. wife's right of exoneration as against husband's other creditors, 740. 741. wife only surety as to property not vested in husband ^'(/rr nuiritl, 741. right of exoneration nuxy be subject of eiiuitable plea at law, 741. extent to which parol evidence admitted that wife's estate wsis mortgaged for husband, 742. original debtor may shift primary liability, 742. substituted o:\iier of mortcased estate nuw adopt debt, 742. ■^ ^ 4 E 2 " 1148 INDEX. LlABU.lTY—co)if!)iued. £xoneration — continued. covenant for payment by substituted o-wner of mortgaged estate does not generally make jiersonulty liable as between his representatives, 743. even though abandoned or imjieri'ect intention of payment shown, 744. otherwise where special contract for ))ayment and Iienetit accepted, 744. or M'here further sum borrowed and new security made, 744. or one covenant for pajTiient of debt with other personal debts, 744. or covenant to convey estate discharged of debt, 744. intention that estate shall remain liable shown by alienation without indica- tion of intention to exonerate, 745. where tenant for life ^\-ith power exercises it only for purpose of mortgage, 745. where heir or devisee acquires mortgagor's personalty and dies, estate not exonerated by it in hands of his heir, 745. where covenant of indemnity by heir w^ll not be adoption of debt, 745. where first devisee of estate being executor of mortgagor had not completed his title to personalty, 745. debt thrown upon estate where personalty of heir or devisee had not re- ceived benefit, 747. intention to exonerate personalty should be clear though express words not necessary, 748. exoneration is generally only in favour of person intended to be benefited, 748. unless other intention sho\vn, 748. or no gift of fund exonerated, 748. what expressions show intention to exonerate personalty, 740 — 751. what expressions will throw debt on personalty not otherwise liable, 751. Effect of Locke King's Act. applies to copyholds but not leaseholds or chattels real, 752. to ecjuitable mortgage by deposit, 752. to vendor's lien by subsequent statute, 753. exoneration of realty only extends to value of fund charged by testator, 753. act does not apply where another fund provided for payment, 753. judicial construction of " any contrary or other intention," 753, 754. statutory construction in wills of persons dying after 31 Dec. 18G7. .755. Contribution,, reciprocal action of rights of contribution and marshalling, 755. order of liability where primary fund insufficient, 75G. when several estates liable to rateable contribution, 75G. where contribution prevented by marshalling, 756. effect of sale or exchange of part of incumbered estate, 757. effect of mortgage before election by perscm bound to elect, 757. where insurance office has no contribution in respect of payment on mort- gaged policy, 757. no right of contribution between representatives of lunatic, 757. when mortgage paid out of lunatic's personalty l)y order of court, 758. provisions of Lunacy Act, 1853, as to dealings with lunatic's estate, 758. order of court as to primary fund will not affect will of lunatic made before lunacy, 759. infant's mortgage debt paid out of personalty kept alive, 759. ^lar.sJiallinff, effect of (If)ctrine of, as compared with right to throw debt on another estate by means of redemption, 759, 7C0. equity will not marshal where by aiding one incumbrancer it would injure another, 700. exceptional decision in Admiralty, 760, note. debt thrown rateably ujion both securities, 761. second incunibran<'er with covenant against incumbrances may marshal against subscfjuent creditor ))y judgment or pendente lite, 761. so tenant in tail under settlement for valuable consideration, 762. position of subsequent incumbrancer where assignee for valuable considera- tion without notice, 762. when mortgagees are ai)pointees under power, 762. marshalling arrears of interest on judgments of tenant for life as against remainderman, 763. INDEX. 1149 lAABUATY—coHfiiuicd. MurslMlUng — continued. surety has benefit of rifjjht of marshallinfr, 703. and unpaid vendor of floods a^Minst jded^'ce of bill of lading, 7G3. niortt^ajzce's ri^^dit to nuirshal oven-ides surety's right to securities, 7G3. marshalling when estates have descended, 7U3. when debtor is bankrupt, 7G3. against wife mortgagor, 7(i4. where security extended by crown, 764. marshalling against crown, 7()4. widow may marshal in respect of paraphernalia, 704. mortgagee of part of charged estate may marshal against part not mortgaged, 704. mortgagee of chattels distrained may maishal against assignees of mortgagor, 704. ]nu(haser of estate bound by mortgagee's right to marshal, 704. marshalling allowed after payment of creditor with double fund, 704. where first mortgagee's right not interfered with, 705. right of jiocuniary legatee to niarslial, 705. mtu-shalling restsupon general e(iuitable principles of administration, 765. does not a])ply where no question as to suthciency of single fund, 760. ai)plications of principle of marshalling in Admiralty Court, 700. nuirshaUing may be directetl though right not expressly claimed, 707. LIENS. See Judgment ; Solicitor. considered as securities ai-ising by law, 3. what they comprise, 3. nsc of the word lien, 3, n. rights corresponding to, may be by contract, 4. nature and incidents of, 4. Of rriulor, difference between vendor's lien on land and chattels, 122. principle of, 122. where it arises again.st land, 122, 12.3. where principle of does not apply, 123. of purchaser for price prematurely paid, 123. where it does not ai-isc, 124. lial)ility of holder of chattel under lien to preserve it, 479. where preservation causes expense, 47'.>. liolder of chattel under, cannot demand payment for warehouse, 479. chattel held under, cannot be taken in execution, 491, 820. c(mstrncti()n of word lien in sect. 184 of Bankruptcy Act, 1849.. 539. absence of receipt on conveyance is notice of, 598. English maritime law as to, 097. discharged by tender, 770. of vendor of land when waived by taking security, 813 — 816. of vendor of goods when waived, 816. waiver of other liens, 810 — 824. not destroyed by right of set-off, 817. of solicitois destroyed by payment to new solicitors, 817. where lien may revive by re-possession, 821. parting with subject of, is abuse of right, 820. to what extent assignment by owner of lien will be good, 820. holder of, cannot retain for dift'erent debt or under another right, 820. LIENS NOT POSSESSORY, On partnership property, where it arises, 124. as to distinction between and ordinary lien upon stock in trade, 125. not available where continuing partner has made ^oh/j /fW^" assignment, 125. extends generally to property helil fur jiurposes of partnership, 120. not to property held in conmion by part owners, 126. only arises on dissolution of partnership, 127. where company has lien on shares of proprietors, 127. lien belongs to creditors only in respect of equities of partners, 127. 1150 INDEX. LIENS NOT TOSSESSORY— continued. On j)a)-tnershlp properi]! — continued. where dissolution was caused by death, 127. rights of creditors in such cases, 128. L'wn of agent, where a'uent entitled to lien in respect of outlay or liability for principal, 128. ■' Lien for expenditure, no lien generally for expenditure on another's property, 12'J. case of tenant in common and joint tenant, 12'J. where property bought mthout title, 12i). where laid out on faith of re])rcsentation, 129. where in exjiectation of jirotit, lo4. on agreement for lease, 12i). for discharge of incumbrance, 130, 306. on estate of lunatic, 130. advances for salvage, 130. on mining property, &c., 131. on West India estates, 131. allowed both to manager and consignee, 131. none in favour of o-rnier, 132. where manager is appointed by owner of limited interest, 132. Expenditure on West India estates, where mortgagee is in possession, 133. where estate is managed by court, lien is on every fund in power of court, 133. consignee's lien only arises on final settlement, 133. consignee requiring payment must apply for dischai'ge, 133. in respect of what payments allowed, 133. not aifected by bad management without mala fides, 133. how far ti-ustee being consignee may have hen, 13-1. lien on salvage, 134. no lien under agreement to advance unless whole advance made, 135. Of trustees and on trust property, where trustee advances for trust, 135. none for advances in breach of trust, 135. not lost by payment into court, 135. for security of trust fund upon property into which it is traced, 135, 13G. money must be shown to be the actual fund, 136. in case of advance to infant under power, 137. where trust money is invested in purchase of real estate, 137. lien may be upon other property of receiver of fund, 137. where money raised under power is applied in excess of power, 137. money in hands of factor or broker for special purpose, 138. on property of debtor who has deposited deeds and withdrawn them, 139. Liens of attornies vponjvdrjments, Sfc., particular lien on fruits of judgment, 140. ajjplies to fruits of arbitration or compromise, 140. but must have been recovered by attorney's diligence, 140. solicitor of defendant entitled to, in equity, 140.^ extent of, 1 40. none on trust fund, except to trustee, 141. on money actually received or held to abide event, 141. the lien on real estate allowed by Lord Hardwicke, 141. afterwards disallowed, 141. but court empowered by statute to create charge, 143. extent of charge allowed by court, 143. not allowed in suit for infant during infancy, 144. how order made at law, 144. equitable right of solicitor to lien not affected by act, 144. effect of equitable and statutory rights, 144. equitable lien binds assignees of client, 144. and his administratrix, 144. cannot be prejudiced by release of order for costs, 144. how lien enforced, 145. INDEX. 1 I 1 LIENS NOT POSSESSORY— rowf/m/r-rf. Liens of attorutrx npoii jiuhjmvntx, ^■r. — Qm\i\\\w\\. does not prevent coiiiproinise where not eollusive, 145, 14(;. remedy of attorney in ease of collusi(jn, 1-1 »;. attorney mnst do ecjuity, 140. lien at an end where client cannot enforce claim, 147. effect of set-off iii)()u lien, 117, 148. Mar'dimr Urns, what liens allowed hy marilinie law, 148. where master can have lien for outlay a.s atront, 14!t. statutory lien of master under Merchant Sliippinj; Act, 18r)4..149. of seamen and masters under Admiralty Court Act, 18G1..14'J. extent of power ;_nven to court by that act, 150, 151. its power over claims for huildiii;^- repairs and neccs.sai-ies, 150. for dama<;c to -^oods and daniaj:e hy ship, 151. lien upon proceeds of car^o for advances for .ship, 151. lien under rij^ht to averajic, 152. lien under act of 1862 for loss of life, per.sonal injury or damage, 152. extent of ap])lication of act, and of act of 1H54 . . 152. how vaUie of ship ascertained for purposes of acts, 153 — 155. in what courts lien may he enforced, 155, 15G. . lien not di.scharged by sale of ship, 15G. LIENS POSSESSORY, nature of possessory liens, 15G, 157. f^eneral and specific liens, nature of, 157. chattel nuist belonjr to debtor in same character in which he owes debt, 157. possession essential to {general as well as to sjiecial lien, 157. l)roperty must have come to claimant in ordintiry course of dealing, 158. no lien where delivery is for special purpose, 158. where it is in hands of apcnt, 158. possession need not be corporal, 159. possession of agent may ^nve lien to principal, 159. possession must ]>e continuous, 159. lien may arise under contract for amount of consideration, 100. holder of property claiming lien as agent must show authority, 101. GeneralUcns. See Banker; Buokeu; Factor; Solicitor; Wharfinger. founded upon contract or usage, 101. where admitted without proof, 161. where special agreement created by notice of course of trade, 161. claimant of, must have acted in character of which lien is the privilege, 161. rights of strangers not affected by, 102. in what kinds of business admitted, IGIJ — 168. Ofuttornies and .wUcltors vjjon documents and other chattels, 168—160. See Solicitor. Specific liens, favom-ed by law, 101. lien for labour is only where work is com]detc, 1 80. gives right to retain every part of goods for work done on all, 181. applies to every exercise of trouble, expense or skill, 181. work must be by authority of owner, 181. lien is only cm chattel which receives labour, 182. no lien on official records, 182. lien for salvage, 182. lien of innkeeper, 183, 184. See Innkeeper. of can-ier, 184. Sec CARRIER. of ship-owner, 184—191. See Ship-owner. of wharf-<.w^ler, 191. See Wharf-oWNER. of vendor of chattels, 191. See VENDOR OF CHATTELS. LIMITATIONS, STATUTES OF. See Interest. will nin as to estate of decea.scd partner, although interest paid by survivors, 12S. does not Imr attoniey's lion or jiossessory lien, 144, 102. effect of 21 Jac. 1, c. 10, in equitv, 281. provisions of 3 & 4 Will. 4. c. 27, s. 28, as to right of redemption, 282. applied to mortgngee iu possession at passing of act, 283. 1152 INDEX. LIMITATIONS, STATUTES OF- continued. right of redemption not baiTcd while mortgii<:;or holds part of estate, 283. time does not run until day of redemption, 2S4. or under Welsh mortgaf;;e until satisfaction, 284. antiquity of mortgagee's possession more regarded than novelty of mort- gagor's title, 2S4. mortgagee's possession under, must be adverse, 285. time w-ill not run while estate is irredeemable, 285. in cases of collusion, 285. where possession adverse, though taken by mistake, 286. where right accrues in cases of trusts, 286. what acknowledgment will save right of redemption, 286 — 288. no form of acknowledgment necessary, 288. acknowledgment not inferred from equivocal expressions, 288. effect of filing foreclosure bill, 288. acknowledgment must be by mortgagee, 289. may be to mortgagor or his agent, 289. nature of agency, 289. acknowledgment may be after possession for twenty years, 289. acknowledgment by tenant in tail will revive right, 290. lessee of mortgagee bound by acknowledgment, 290. effect of statute not prevented by mere demand, 290. effect of commencement of suit, 290. whether statute saves redemption in case of disability, 290. statute does not affect redemption of pledged goods, 291. statute must be set up by pleadings, 292. how set up, 292, 293. mortgage debt, within what period recoverable under, 373. foreclosure suit is for recovery of land or rent only, 375. and governed by 3 & 4 Will. 4, c. 27, s. 24, and 1 Vict. c. 28 . . 375. where mortgagee defendant not bound by, 376. how time runs against purchaser fi-om mortgagor and mortgagee, 376. assignee's right of entry under 1 Vict. c. 28, against defendant in possession by sufferance, 376. acknowledgment under sect. 14 of 3 & 4 Will. 4, c. 27 . . 376. disability, allowance for, under 3 & 4 Will. 4, c. 27, s. 16.. 377. 3 & 4 AVill. 4, c. 27, s. 24, includes legal mortgages, 377. how time runs, under covenant for quiet enjoyment, after default, 377. meaning of word judgment in 3 & 4 Will. 4, c. 27, s. 40.. 377. statute applies to reversions, 378. application of statute where suit delayed on account of existing creditor's suit, 378—380. vendor's right to recoTer purchase-money within sect. 40. .380. not saved by creditor's or administrator's suits, 380. time does not run where mortgagee in as tenant for life, 380. or semble as tenant in common, 381. where appointment of receiver prevents time from running, 381. claims not barred where money paid in breach of trust, 381. time runs against mortgagee, though no adverse possession, 381. statute saved by part payment or acknowledgment, 382. as to effect of payment by devisee or receipt of rent in keeping alive debt against debtor's personalty, 382. and of payment by one of several persons liable against the others, 383. nature of acknowledgment required by sects. 40— 42.. 383. acknowledgment must be by person liable or his agent, 384. jjayment by consent does not bar i-ights of infants, 384. w^here payment of interest by mortgagor's agent keeps debt alive against es- tates sold, 384. the cases of Balding v. Lann and Chinnery v. Evans considered, 385. payment of interest by stranger no acknowledgment, 386. acknowledgment must show that debt is subsisting, 386. acknowledgment by trustee sufficient, 386. letter signed by amanuensis, 386. where acknowledgment is by person who fills double character, 386. no bar by undisturbed po.ssession of debtor for twenty years, and punctual payment, 387. INDEX. 1103 LBIITATIONS, STATUTES OT— continued. disabilities under stat. of Will. 4... '587. rijiht to sue must accrue during disaliility, 387. disability must be clearly stated, 387, statute does not apply to express trusts, 388, 389. schedule<l incumbrancer not party to deed is not cestui que trust, 389. where express trusts arise and where not, 389, 390. remainderman not bound by statute till ri^4it of possession accrues, 390. where rif^ht to sue accrues in case of concealed fraud, 390. limitation as to actions of covenant or debt on specialty, 390. provision of Mercantile Law Amendment Act in case of joint contractors, 391. persons who have not set up statute have no right of contribution against those who have, 391. LIS PENDENS. See Notice by Records, 29. registration of, 116. in case of winding-up petition is against company only, IIG. discharge of, pending or after suit under Lis Pendens Act, 1867.. 630. effect of appeal upon, 632, 633. where it will not affect \nth fraud, 633. will not postpone registered conveyance, 633. takes effect from service of bill, 633. effect of, upon purchaser for value without actual notice, 634. statutory discharge of, 1089. LLOYD'S BOND, nature and effect of, 230, n. LOAN SOCIETIES, partly exempted fi-om former usury laws, 936. LOCKE KING'S ACT. See Liability. LONDON, custom of foreign attachment in Court of Lord Mayor of, 496, 497. LORD, right to redeem in case of escheat, 310. LUNATIC, securities upon property of, under Lunjicy Regulation Act, 239, 240. effect of statutoiT security in case of married woman, 240. where interest of lunatic is contingent or reversionai-y, 240, 241. money expended for improvement of laud may be raised without right of sale or foreclosure, 241. interest in surplus monies of lands sold or mortgaged under act, 241. I'ower to order mortgage or sale under Lunacy Regulation Act, 1862.. 242. money of, not generally lent on mortgage by Court of Chancery, 250, n. what evidence will invalidate contract for lunacy of mortgagor, 394. no equity between representatives for restoration of payment in dischaigeof mortgage, 758. provisions of Lunacy Act, 1853, as to dealings with estate, 758. vesting orders of estates of, when trustee or mortgagee, 1024 — 1027. court may make order to convey such estates, 102G. MAN, ISLE OF, a home port, 82. MANAGER, not generally appointed of pulilic undertaking, 422. under Railway Companies Act, 1867.. 422. MARRIAGE BROCAGE, securities for, 216. 1154 INDEX. MARRIED WOMAN, has power to mortgage land, money to be laid out in land, and proceeds of land, 233. mortgage of her term, 23-1. of her reversionary personalty, 234, 235. deposit by husband of mortgage deeds of, not a reduction of debt into pos- session, 235. where entitled in equity to settlement, 235, 236. where equity not enforceable against mortgagee or assignee for value, 236. how equity may be claimed, 23(). whether mortgage of, without fine, may be established by acts of wife after husband's death, 236, 237. mortgage of, without fine, binds after joint answer in suit, 237. may contract debt on mortgage or credit of separate estate, 237. written engagements of, included in testamentary charge of debts, 238. where separate estate of, may be liable to her debts or costs, 238. where debts of, are chargeable on property, subject to her appointment, 238. when her separate estate ^dll be held liable, 238, 239. effect of too large assignment by, 239. as to restraint on sale or incumbrance by, 239. estate of, does not pass under Lunacy Regulation Act without acknowledg- ment, but heir bound, 240. effect of fi-aud by, 857. decree where she has separate right of redemption, 983. where decree against both husband and wife, 984. may be absolutely foreclosed without day to show cause, 1030. no immediate order absolute against, by consent, 1030. MARSHALLING. See Liability. no right to, in favour of creditor otherwise barred, 392. none by husband's creditors against estate of wife, 741. MASTER. See Bottomry. of ship, nature of his liability under bottomry bond, 77. has possessory lien for freight and general average, 188. MERCHANT SHIPPING ACTS. See Registration ; Shipping. notice under, 595. MERGER OF DEBT, where merger of debt presumed, 784. where legal merger wall not affect equitable interest, 784. where presumption i-ebutted, 785. arises whether charge is secured by legal or equitable interest, 785. effect of merger upon priorities of incumbrancers, 785. whether purchaser of equity of redemption can keep up charge for his own benefit, 780. efPect of decisions in Mocatta v. Murgatroyd, Greswold v. Marslmm, and Toulm'ui V. Steere, 786 — 788. judgment assigned to trustees of debtor's estate does not merge, 789. presumption of merger on payment by tenant in tail, 789 — 791. but not by owner of estate defeasible under executory devise, 789. nor by tenant for life, 789. tenant for life need not show intention to preserve charge, 790. rights of tenant in tail in remainder, or who is restrained from alienation, same as those of tenant for life, 790. equities unchanged when estates enlarged, 790. where tenant in tail is infant or lunatic, 791. application of principles as to payments by tenant for life in case of bond debts, 791. no equity to bring back merged charge where estate goes over after merger, 792. where remainderman must repay charge to representatives of tenant in tail, 792. what evidence as to merger may be used, 792. prevented by express declaration, 792. INDEX. 1155 MERGER OF T>¥.BT—(n,iti>ivefl. conveyance wit limit (leclaiiition not snflRcicnt, 793. intention should be dearly .stutcil, 7'J3. acts of tenant for life which raise presumption of merger, 704. circumstances which favour presunii)tion of merf.'er by owner, 794 — I'JO. no merf^er where it would i)revent o]i('ration of trust, 790. charge may lie subject to liabilities although merged, 79i>. where evidence of intention absent most beneficial cour.se to owner followed, 797, 79«. intention not presumed on ground of dealings in ignorance of rights, 798. no merger in favour of person with fraudulent title, 798. personal representatives not dcjirived of charge by Statute of Limitation.s where no person liable to ])ay, 799. on merger of tithes, lands become sabjcct to charges which affected tithe.-, 800. tithes may be merged by person without title, 800. MERGER OF SECURITY, how security may merge, 800. remedies under securities mast be co-extensive, 801. in ca.se of co-debtors, 801. securities must be vested in same persons, 801. must relate to same debt, SOI , 802. debtor may be made bankrupt in respect of debt merged, 802. merger may be prevented by expressed or implied intention, 802. MILLER, has no general lien but by usage or contract, 163. has specific lien, 180. MIXES, liens for e.xpenditiire on, 131. mortgagee's liabilities as to, 88G. MISREPRESENTATION, security obtained by is bad, 208. MISTAKE, omission by, of mortgage refjuisites may be sujiplied, 11. MORTGAGE. See Bill of Sale; Equitable Assignment ; Moktgage, Equitable; Mortgage, Transfee of; Mortgage, Welsh; Ship- ping. nature of, 4. may be legal or equitable, G. may be transferred, 6. form and effect of, 7. for term of years, objects and effect of and when used, 7, u. for terra gives no right to sale of term or foreclosui'e of fee, 528. Glanvill's and Littleton's definition of, 9, n. ancient form of, in England, 10, n. omission of rcfpiisites of may be supplied, 11. may be effectual though retained by debtor, 12. intention to make not lightly inferred, 12. under power, 228—233. See Tower to mortgage. mortgage implies a loan, 735. stamps on, 1114— 1 120. MORTGAGE DEBT. See Liability. belongs to personal representative of mortgagee, 371. old rules concerning, .'570, n. is charge within judgment act, 485. MORTGAGE, EQUITABLE, nature of, 6. recognized at law, G. what property may be subject of, 29. ctTect of, upon property transferable under pai-ticular statutes, 80. created either by formal mortgage or by mere deposit, 31. 1156 INDEX. MORTGAGE, EqUITABLE-continued. how intent to create may be shown, 32. where security inferred from deposit alone, 32. rule in bankruptcy, 33. where deposit im])erfect or documents remain in keeping of debtor, 33. where written undertaking without actual deposit, 33. deposit of pai-t of deeds, 3i. whether deposit of attested copy is effectual, 35. to make submortgage deposit of original memorandum not necessary, 35. no security by parol agreement to deposit, 35. what property affected by mortgage by deposit, 35. extent of security measured by the agreement, 35. what debts will be covered by deposit, 36. where deposit will cover future advances, 37. legal security not extended to future advances on parol agreement, 37. effect of parol evidence as to natm'e of possession, 38. promise to pay debt out of an estate, 38. incomplete agreement for security, 38, 39. preliminary step in effecting security M-here it does not amount to equitable mortgage, 39. effect of delivery of deeds to be held till execution of mortgage, 39. delivery for purpose of preparing mortgage, 39 — 41. no equitable security by deposit of deeds of land registered under Registra- tion of Titles Act, 42. where power of attorney will create equitable charge, 42. where covenant or agreement to charge land will create equitable security, 42-44. parol evidence of arrangements contained in separate iustrimient, 44. of ships under 8 & 9 Vict. c. 89.. 61. under Merchant Shipping Act, 1862. -65. by deposit of registered mortgage of ship, 66. MORTGAGE, TRANSFER OF, transferee bound by equities between mortgagor and transferor, 6. usual to assign debt, 6. benefit of debt passes by transfer of estate, 6. benefit of security passes by assignment of debt, G. MORTGAGE, WELSH, nature and effect of, 7, 8. mortgagee's possession and receipt of rents necessary to, 8, 9. when redeemable, 8. variation in form of, 8. MORTGAGEE, of leaseholds, liabilities of, 21. not compellable to take legal assignment, 22. mortgagee not in possession not bound by acts of mortgagor's mana"-er of West India estate, 132. equitable, is purchaser within 27 Eliz., 204. cannot impeach mortgagor's title, 274. when he may restrain acts which diminish value of estate, 334. when property is taken under Lands Clauses Act without providing for his interests, 336. in case of a mortgage of tolls, 336. where pnisn£ incumbrancer takes possession under elegit, 336. right of, to accretions to security, 336. when he may exercise his remedies, 349, 735. may pursue all remedies at once, 350. may sue for foreclosure after redemption, 350. unless undertaking of plaintiff in redemption suit to pay, accepted, 350. may sue after decree in favour oi puisn6 incumbrancer, 350. may file bill for conveyance, 351. may proceed against deceased mortgagor's assets, 351. may prove in administration suit, 351. even after decree of foreclosure upon tcnns, 351. IN'DF.X. 1157 nOJiTG AG¥AZ—co>it!>nied. wliere iiiort}ijao:or's legatees not ol)li<rc(l to rcfuinl, 3."2. when remedy lost apiinst general assets, 352. right to prove in bankriii)t( y, 352. And see Bankruptcy. right to benefit of creditor's trust deed, 352. of share of colliery, remedy against co-teimnts, 352. may interplead where equity of redemption is in dispute, 352. coming to equity not sent to law, 353. legal, cannot sue in equity to set aside equitable settlement, 353. lending to trustees has only remedies of mortgagee, 353. may sue in/crind jxivjjtrig, 353. where general right to sue restrained, 353. entangled accounts, 353. to prevent double account, 354. where unable to reconvey, 354. where acts done contrary to equity, 355. where security is ultra rirr.i, irregular or fraudulent, 355. where security subject to rights of others, 355. where others have acquired sul)scqucnt rights against him, 35C. of trust ])ropcrty may exercise rights contrary to trusts, 356. mortgagee of public works may only have receiver against land, 35G. restraint on remedies of, by scheme under Kailway Companies Act, 18C7.. 357. where no account given, 358. tender refused, 358. in case of laches, 358. where advowson is security, 358. secm'ity protected where right to redeem made out, 358. where mortgagee has acted mala firlf, 359. or is selling for improper object, 35!». not restrained under contract which ap])licant is impeaching, 359. nor in respect of contract for sale, 359. how far by virtue of judgment acts which suspend remedies, 359, 360. cannot defend ejectment as landlord unless interested, 4(12, n. entitled to rents under existing tenancy as reversioner, 462. right of, to distrain and sue for rent under tenancy prior to mortgage, 463. relation of mortgagor to, when retaining possession without express con- tract, 464. special right of entry on default should ])e reserved to, 468. not in possession cannot sue tenant of mortgagor for mesne profits, 471. or distrain upon or sue him for rent, 471. after recognition cannot treat tenant as trespasser, 471. recognition creates tenancy from year to year, 471. what amounts to recognition by, of mortgagor's tenant, 472. CiUinot lease for years without mortgagor's concurrence, 475. remedy of lessee where mortgagor will not concur, 475. where lease of, confirmed by mortgagor, right enui-es to person who has legal interest, 475. effect of reservation of rent to mortgagee and mortgagor during respective interests, 475. of personal chattels, when and how he may sue in respect of them, 476. when right of ])C)ssession is complete, 476. right of })ossession is consistent with trust, 477. may sue mortgagor's bailee for, 477. of ship in possession shouhl sell, 481. if unable to sell may use, 4S1. how chargeable on improvident sale, 482. not bound to speculate, 4S2. where restrained from interfering with use by mortgagor, 482. is entitled to fruit of mortgagor's contract, 482. but must take possession, 483. where liable for necessaries, 483. of chattels selling must account for proceeds, 499. pnisn£, where he may buy from first mortgagee, 502. may sue for foreclosure or sale without taking possession, 513. in possession should state fact in bill, 513. 1158 INDEX. MORTGAGi:E-confini/ed. may not debute title in foreclosure snit, 513. with paramount title, no sale against without consent, 528. not bound on sale of leaseholds to indemnify assignees, 535. may apply to stay bankrupt's certificate, 544:. does not lose rijzht by execution afjainst debtor, 818. in possession must be dilificnt in realizing estate, 873. accounts against, 873, et hifra. See Accounts. in possession must act as provident owner, 885. where not bound to defend possession, 886. where not charged with deterioration, 88G. how fai' bound to repair, 886. forms of in(|niry as to deterioration by neglect of, 880, n. his rights and liabilities in respect of mines, 886. when he may open new or work abandoned mines, 886. not bound to speculate, 887. where inquiry proper as to working of mines, 887. how far bound to repair or rebuild, 887. distinction between his rights and those of owner of rent-charge, 888. should inform mortgagor when unusual expenses necessary, 888. when he should have consent, 888. for what improvements allowed, 888. when entitled to inquiry as to improvements, 880. how value of rebuilding by, estimated, 890. allowed costs of sales, 890. and payments to outgoing tenants, 890. cost of repairs by, is payable out of his general estate, 890. Allowances to, none for personally receiving rents, 890. nor commission for sale of property, 891. except where sold under direction of court, 891. in case of mortgage of ships, 892. in case of West India estates, 892. allowed in respect of management, 892. and in respect of extraordinary obligations, 892. where mortgagee in possession may charge for agent's salary, 893. rules as to allowances not dependent upon law of usury, 893. principles upon which he has no allowance for personal trouble, 894. improper allowance is ground to surcharge aiid falsify, 894. how he should proceed after certificate of sum due, 899. may hold against all but paramount title till redemption, 1002. vesting orders of estates of, 1025 — 1030. MORTGAGOK, may sue in form,a pauperis, 353. cannot set up title of third person against mortgagee, 462. though unable to sue, may distrain for rent or justify as mortgagee's bailiff, 463. after possession by mortgagee, remedy for rent not received is only on taking accounts, 463. retaining y)osscssion without special provision, nature of interest, 463, 464. is not tenant at will, 464. nor receiver of mortgagee, 464. how far tenant at sufferance, 464. may exercise ordinary rights of property, 465, may hold courts, 465. may exercise franchise, 465. is owner within statute of sewers, 465. may be treated as tenant or trespasser, 465. not entitled to rents in arrear or crops, 405. what amounts to redemise to, 465, 466. no redemise without certainty of time, 466. no tenancy where it would be inconsistent with general object of deed, 467. tenancy may arise by force of intention, though no reversion in donee of power of distress, 468. INDEX. 1159 MORTGAGOR— confhiiie.I. iiu)rt;.ni>rce may retain rij^ht of ejectment, thouj^h apt words used to create tcruiiicy, 4(;,s. tenancy not created by mere power for mortgagee to distrain, 4GH. nature of tenancy of, 4()'.(. l)y what provisions tenancy of, created, 4(19. eifect of payment of rent "to mortgagee for property not included in mort- gage, 470. cannot determine tenancy at will by assignment, 470. ordinary relation lietwcen, and mortgagee not a tenancy within County Courts Act, 470. tenant of, after mortgage, may be ejected or distrained upon by mortgagee, 470,471. remedy of tenant against mortgagor, 470. mortgagor's tenant, accepted by mortgagee, is only tenant from year to year, 471. where mortgagor's tenant may give possession to mortgagee and sue mort- gagor, 471. may distrain for rents under lease after mortgage till mortgagee interferes, 47:5. with power to lease, may lease to trustee for himself, 475. cannot sue with mortgagee on joint demise, 475. covenant by, not imjjlicd where he leases jointly with mortgagor, 47G. of chattels, when he may sue mortgagee's assignee for, 477. his right to employ mortgaged ship, 4S2. bound to indemnify estate against costs of protecting title, 885. with notice of equitable claim, paying debt to mortgagee, may become liable to claim, 9(>7. MUNICIPAL CORPORATIONS ACTS, securities according to, lO'Jj. NEGLECT. See Priority, Loss op. NEGLIGENCE, against negligence, sets matter at large, ."i'J'J. NEGOTIABLE SECURITY, pledgee of, may sue for debt due thereon, 477. but cannot compromise for less, 477. notice of assignment of, not necessary, 587. NEW ZEALAND COMPANY, notice of assignment of land order of, not necessary, .'SS, n. NOTICE. See PRIORITY; Security ox Chattkls ; Tackino. none of trusts, &c., to be received under Merchant Shipping Act, 1854 ..04. explanation of provisions by act of l8(!L'..tI5. effect of provisions retiuiring notice of sale under power, 503. of sale may be good, notwithstanding disal)ility, oO.'l assignee of personalty must give, of his title, .")S);, 587. legal and equitable incumbrancers equally hound to give, 586. notice aliunde to holder of fund not sufficient, 586. rule that assitrnee must give, not ap])licable to negotiable instruments, 587. nor to assigmncnts of interests in land, 5S7. but is necessary where real estate is converted, 587, 588. notice to original mortgagor of assignment of mortgage not necessary, 589. where persons dealing with incumbered property should give, 589. Knture and conditions of, is either express or implied, 590. may be verbal or written. ."90. object of, not material where given, 590. must be distinct, 590. should be given by person interested, 590. Avhere it does not arise by reputation, 591. 11 GO IXDEX. 'SOTlCY.—confun/Ptf. X(itin-e and conditions of — continued. sliould be given before completion of transaction, 591. before fiat or petition for bankruptcy, 591. ought generally to be in the transaction in question. 591. operates in transaction under Court of Chancery, 59L*. should be given to per.<on who has control over fund, 59l\ in cases of executors and trustees, 592, 594. master of ship, 593. proceeding where no proper recipient of notice, 593. ■where fund in court, 594. where two stop orders on same day prior notice prevails, 594. to trustee effectual, not^nthstanding payment under Trustee Belief Act, 594. form of declaration where trustee has notice, but no cestui que trust in esse, 594. holder of property must accept notice, 594. service on agent of holder, 594. notice to public companies, 595. under Merchant Shipping, Companies, and Companies Clauses Acts, 595. feme covert and infant bound by, 595. Constructive, nature and effect of, 595, 596. when it arises, 596, 597. Sy neglect and fraud, when it arises, 597, 598. of what it does not give notice, 598. person alleging notice in another must prove it, 598. SctKcen principal and agent, nature of, 599 and n. in case of counsel and solicitor, 599. between country solicitor and London agent, 599. whei"e notice in prior transaction is good, 600. where agent acts for several mortgagees, 600. employment of agent must have been of a responsible kind, 601. notice of what one principal knew as agent for the other, 601. practical effect of decisions, 602. length of interval after which notice imputed, 602. where transaction is fraudulent and agent is interested in concealment, 603. where not fraudulent apart from concealment, 603. actual retainer of agent unnecessary to let in notice, 604. where agent only employed in part of transaction, 604. effect of delivery of papers to agent if he did not inspect them, G04. where mortgagor prepares security, 605. not assumed that mortgagor's solicitor acted for mortgagee, C05. giver of notice must see that it reaches proper person, 605. who is proper recijjient of, on behalf of insurance and other companies, 605, 606. notice to one of several partners sufficient, 606. in case of mutual assurance and banking companies, 606. how far notice to one tru.stee binds the others and cestui que trust, 607. By recital or reference, notice of instrument is notice of contents, 607, 608, 609. exception in case of fraud, 608. rule extenils to imrticulars of transaction, 609. and equities arising out of it, 609. liy peculiarity in conveyance, 610, 611. where deed or matter does not necessarily affect title, 611. jiurchase from heir with notice of will of ancestor, 612. purcha.ser should use best means of knowledge, 613. effect of notice of entail, 614. of assignment of term to attend inheritance, 614. notice of application of clear equitable doctrine, 614. where equity is doubtful, 615. in case of settlement improperly framed, 615. notice of postnuptial settlement is notice of prior articles, 615. INDEX. IIOI N( )TICE — continued. Jiy recital or reference — coiitiniiod. where one estate is lialile to iuciiiiiljrances cliarfrcil on the other. (»!.>. purchaser not hound to know all equities of partieular deeil, t;i(j. witness has not notice of contents of deed, (JIG. where inartificial instrument carries notice of its contents, filO. where recital of instrument is inaccurate or inconi])lete, (>l(i. no notice of matters collateral to subject of intjuiry, G17, G23. of documents examined or left for inspection, 017. of judfiuients hy person who has searched, (U.S. liij /j()Kxex.iii)/t of title deeds, (Hi-!, Oil). underwriters have, of broker's lien on policy, G20. Jiy tenancy, nature and extent of, C20— G22. in dcalini;s with executors, &e., 623— G26. mortfrityee not <;enerally IjoiukI to inquire of executor, 023. where pledire is for ))rivate debt of executor, 02+. where executor mort{,'ages lus absolute owaicr, 025. where executors sell to survivinf^ ])artners, 025. rules apply to mortgage by administrator, 020. By records, statutes, 020. court rolls, 020. registration of deeds, 027. registry not notice, 627. acts only protect persons without notice, G28. where registry has been searched, 628. lis jH'ndens, 028. continued ])rosecution of suit necessary, 030. vacation of registration under Lis Pendens Act, 1867.. 030. to what interests lis j'endens extends, 031, G;i2. whether transaction after bill dismissed isi pendente lite, 032. suit not brought to hearing does not create lis pendens, 032. Aotice by judgments, decrees, rules and orders, (;2',t. rule as to notice by decree only applies where decree puts an end to suit, 032, 033. Notice of hiinJtriiptcy, 634:. corporations and compsmies have notice of, by notice to agents, 035. Plea of purchase without, bsxrs hoth legal and equitable title, 035. principle of, 035. where i)roperty is in medio, 036. cannot be set up by purchaser who has title against mortgagor only, 030. where legal title is clear and absolute, 636. should be set up by plea, G30. mode and effect of pleading, 637 — 639. General, does not affect puisni incnmbrance which avoids earlier deed, 663. what amounts to neglect in giving of mortgage of chattels, 094. what notice will affect incundiranccr under Kegistration Act.s, 703. does not affect priorities of judgment creditors, 723. NOVATK), nature and effect of, in civil law, 812. OFFICES, PI7BLIC, securities for obtaining or procuring sale of, or relating to, bad, 217. sale of, is malum in se at law, 221. forbidden by statutes, 221. ORDER ARS(UA:TE, for foreclosure, is of course on afTidavit of non-payment according to decree, 1034. must be obtained before accounts in respect of next right of redemption, 1034. M. VOL. II. 4 F 1162 INDEX. ORDER ABSOLUTE— CO )ifi mi ed. not made -where agent of mortgagee attends alone without power of attorney, 1035. is made at once where defendant makes default at bearing, 1035. where bill is taken pro co»fc'sso, 1035, 1036. where service of decree cannot be made under Cons. Order, xxii. s. 8 • . 103G. after what time service dispensed with, 103G. declaration that mortgagor is trustee not added to common order, 1037. must give infants their day, if proper in original decree, 1037. does not make mortgage real estate from decree to account, 1037. release after decree is equivalent to, 1037. ORDER FOR PAYMENT OF MONEY. See Decree foe Payment of ilOXEY. PACKER, entitled to general lien, 1G3. and specific lien, 181. PACTIIM ANTICHRESEOS, nature of, 9, n. PARENT AND CHILD, where transactions between, set aside, 211. PARTIES, receiver not necessary to suit by first incumbrancer, 447. general practice concerning, 547. nature of interests of, in suits concerning mortgages, 547. all persons interested in estate or security should generally be, 547. Orvner of equity of redemption, must be joined where question of redemption arises, 548. with reference to mortgagee's right to complete redemption, 548. surety for mortgagor when, 549. where validity of mortgage contested, 549. married woman owner of, 549. tenant for life, 549. subsequent mortgagee purchaser of equity, 549. where bankrupt or insolvent, 550. in case of fraud or charge of possession of documents, 550. when bankrupt may be party, 550, 552. attorney-general in case of forfeitui'e, 551. Assignees of hanhrupt mortgagor, official and creditors' assignees where proper parties, 551. proceedings where they disclaim, 551. where not to be joined, 551. where bill is for receiver, 551. where creditors sue on refusal of assignees, 551. where they may be made parties after issue joined, 551. Assignees of eqiiity of redemption. who must be, where equity of redemption is settled, 552. tenants for life, 552, 553. on i\ii^\h pendente lite of owner of first estate of inheritance, 551. owners of new interests on determination of contingency, 552. trustees to preserve contingent remainders, 553. trustees for sale, 553. trustees of settlement of lease, 554. lessee of mortgagor and mortgagee, 554. subsequent incumbrancers, 554. prior and subsequent incumbrancers of tolls, 555. subsequent judgment creditors, 555. in register counties, 557. effect of judgment acts, 23 & 24 Vict. c. 38, and 27 & 28 Vict. c. 112 . . 557. where notice of subsequent incumbrance received pending suit, 558. not sufficient to serve subsequent incumbrancers with copy bill, 559. mortgagor's trustee to bar dower, 559. INDEX. 11G3 I'A RTIES— continued. Devisee and heir of nwrtgafior, 059. trustees of will charfiiii;^ estate, uGO. legatees of Icj^acies clmrjretl on estate, 5C0. heirs of Scotth entail, .j").'! attorney-general shoulil be joined in absence of heir, 5C4. no inc|uiry directed as to heir, 'A>\. Personal i-eprenentative of mortgagor, not generally ne(;essary party, 5G1. where he should be joined, i>i>\. where suit relates to chattel interest, oOl, 5G3. where interested in produce of sale, 502. of tenant for life who was in possession, 502. in case of claim for exoneration out of mortgagor's personalty, 562, 563. to avoid circuity of suit, 5(i3. where e(|uity of redemption converted by mortgagor, 503. where administrator under limited administration sufficient party, 562, 564. effect of absence of mortgagor's representative, 564. Mortgagee and claimants under him, mortgagee where not necessary party, 565. where title impeached, 565. where no interest claimed, 505. after assignment, 560. where only part of security assigned, 567. tenants in common, &c. of debt, 567. in suit hy puisni incumbrancer, 567, 568. or judgment creditor, 567. where mortgagee redeemable in part only, 568. where receiver is prayed, 568. Assignees and devisees of debt and seruritji. owner of legal interest necessary party, 569. first tenant in tail under .settlement, 569. purchaser under power of sale not, 569. trustees, 569. wrongful possessors under mortgagee, 570. Heir of mortgagee, necessary where he has legal estate, 570. where not found, attorney-general must be joined, 570. Personal representative of mortgagee, generally necessary, 571. not under Welsh mortgage, 571. of tenants in common, 571. of trustees, 571. in suit ])y sub-mortgagee, 571. of unpaid vendor of realty, 571. where absence of, does not appear till hearing, 571. Persons heneficiuUy interested under mortgagor or mortgagee. See Ces- TUis QUE Trust. Assignees pendente lite of mortgagor or mortgagee, assignee pendente lite not necessary party, 580. nature and extent of the rule, 581, 582. assignee of legal interest is necessary party, 582. and assignee in insolvency, 582. effect of 2 & 3 Vict. c. 11.. 583. proceeding by assignee pendente lite desiring to be joined, 583. right of assignee ji^fw^/f/ffc lite to object for want of parties, 584. in suit to discover incumbrances defendant cannot raise objection in respect of absence of prior incumbrances, 5s4. how new piu-ties brought before court in mortgage suit, 584. TARTNERS, where one of them may make security on personal property of firm, 2j9. not in respect of money lent for extraordinary purposes, 259. nor for separate debt of one partner, 259. where separate security was for purposes of partnership, 260. 4 F 2 1164 INDEX. YARTKERS—cofitinned. where partner dies whose estate is mortgaged for partnership, 2G0. one partner cannot mortgage real estate of firm, 2(10. where benefit of security to partnership is extended to partners for the time being, 200, 2G1. PART OW^NER, of ship, cannot pledge as against other pai-t o-(\aiers, 261. PAWN. See Pledge. PAWNBROKERS, regulations concerning, 73, 74. statutory power of sale of, 512. on sale of pledge only mider takes that it is ^redeemable, 51.3. PAY, to persons in service of crown where not assignable, 221, 222. where it is to enable recipient to perform future duties, 223. payment to representatives of Indian judge, 223. PAYMENT. See Tender. mortgagee entitled to six months' notice before, 768. • extent of rule, 7G9. six months' interest equivalent to notice, 769. where shorter notice sufficient or none necessary, 769. before the day fixed, if accepted, is performance of condition, 770. when payment to mortgagee's agent will be discharge for principal or in- terest, 776. possession of security not generally sufficient, 777. when agent may receive interest, 777. effect of payment of principal to mortgagee's agent before day fixed, 777. payment to one joint creditor is discharge at law, 778. but not in equity, 778. on death of one joint creditor his representatives entitled, 778. payment to trustee is good discharge, 778. rule as to application of unappropriated payments, 778. debtor may appropriate at time of payment only, 778. creditor may afterwards appropriate, 779. e^'idence of appropriation, 779. direction to creditor's agent, 779. extent of creditor's right under law of England and civil law, 779. in case of debtor's bankruptcy, 779. presumption of consecutive payments where no appropriation, 780. rule of civil law where no appropriation, 780. in Scotch law, 780, n. no appropriation /^os^ litem motani, 781. effect of payment by worthless security, 817, 829. mortgagor paying debt with notice of equitable claim mav become liable to it, 967. time allowed for, by decree, 989. persons entitled to suljsequent right to redeem, 990. in ca.se of derivative mortgage, 990. in case of judgment creditors, 989, 990. where only one period given to several incumbrancers, 990. where more than one of such j)ersons is ready to redeem, 990. direction for payment within six months may 1)C added to decree by petition, 991. time allowed reckoned in calendar months, 991. payment of money where trustee unfit person, 991. day of payment may be j>ostponed or foreclosure opened, 991. how application for time made, 992. generally time only given in foreclosure suit, 992. how often time may Ije enlarged, 992. what reasons sufficient, 992, 993. where security must be shown to be sufficient, 993. length of time granted, 993. INDEX. 1165 TA YMENT - continued. form of order, 998. where objections pcndinp; to certificate, 994. where time re<iiiirecl to pro.sccute a])pcal, 994. whctlier refusal of mortgagor to produce deeds is ground for enlargement, 994. effect of non-payment at enlarged time, 99.". order discharged \>y variation of account l)y mortgagee, 995. new day after imolraent of decree or order absolute, 995—1001. See FoiuiCLOSUHE. when time for, postponed by act of mortgagee, 996. where mortgagee uses other remedies after foreclosure, 997. PENSIONS, assignments of, where void, 221, 222. when a.ssignable, 222. juri.'^dictiou of Court of Bankruptcy over, 223. PERSONAL REPRESENTATIVE. See Parties.. of mortgagor, right of, to redeem, 326 — 329. where goods are pledged, 328, 329. of mortgagee entitled to debt, 371. PERSONALTY, not included in stat. 27 Eliz., 203. PILOTAGE, when payments for, allowed to mai-itime creditor, 884, n. PLANTING, inquiry as to, by mortgagee, 889, n. PLEDGE, how created, and effect of, 5, 68. possession necessary to pledgee's title, 68. pledge and accessories liable for whole debt, 68. pledgee has only special property in, 68. ownership revested on payment or tender, 69. what may be pledged, 69. nature of delivery and possession, 69. where pledgor may retain possession or use, 69. pledge must be delivered as security, 70. may be implied, 70. not ccintincd to securities for money, 70. must he made with consent of owner, 70. right of execution against, by creditors of pawnor and jiawmee, 73. l)awnee may recover in action for debt without returning, 398. where pawnor has recovered value of, on MTongf ul conversion, debt remains, 398. where pledgor leaves pawn till it is spoilt, pledgee may sue for debt, 399. waived by redelivery to creditor, 819. unless as agent, 819. PLEDGEE. See Pawnbroker. where he may deliver pawn to stranger, 71. may sell his interest, 71. cannot sell or pledge more than his own interest, 71. except negotiable securities, 71. creditor of pa^Tiee must deliver to pa^^•nor upon payment or tender to pawnee of original debt, 71. intention of refusal to redeliver is for jury, 71. wrongful conversion docs not destroy contract, 72. may deliver chattel to true owner, 72. boiind to restore pledge on payment, 478. how ftir responsible, 478. where debt tcTidered before loss, 478. in case of theft, 478. 1166 INDEX. TLEBGE'E-continiwd. his right of user, 479, 480. under Mahonimedan law, 480, n. cannot demand payment for warehouse, semble, 479. selling must account for proceeds, 4'J9. cannot foreclose, 498, n. selling cannot buy pawn, 502. how he accounts for profits, 874. PLEDGOR, undertakes that he has interest in pledge, 70. without title cannot give title to pledgee, 70. or to second pledgee against first, 71. where pledgor has limited interest, 71. where he holds chattel only as a pledge, 72. may sell his right in pledge, 73. may redeem under Pa^vnbroker's Act at any time before sale, 513. POLICY OF INSURANCE. See Insura^^ce. damages for breach of covenant to keep up, 398. pledge of, gives implied authority to sue on policy, 398. on ship, pledge of, passes no interest in ship, 483. annuitant or mortgagee effecting and keeping up on debtor's life is entitled to retain, 1007. belongs to debtor where he pays or is charged with premiums, 1008. where allowance for insurance is included in calculation of consideration, 1008. when mortgagee is a trustee of policy, 1009. when security has been set aside, 1009. where annuity is for lives which are insured by grantee, 1009. where agreement expressed or implied that policy shall belong to debtor, 1010. not material that insurer's interest ceases on redemption, 1010. how far contract may be ascertained from letters, 1010. where there is contract that grantor may elect to take, 1010. where policy is assigned as collateral security with subsequent trusts, 1011. benefit of fire policy passes by mortgage though not mentioned, 1011. PORT-CHARGES, ship owner has no lien for, 188. POSSESSION. See Accounts; Mortgagee; Pledge; Waiver. mortgagee not compelled to take, 413. acts which do not amount to, 875. court may grant inquiry as to fact, 875. may be taken in part, 875. suit of puisne incumbrancer is equitable possession, 876. POWER OF ATTORNEY, where it may create an equitable security, 42. or equitable assignment, 45. POWER TO MORTGAGE. See Agents; Bankruptcy; Lunacy; Mar- ried Women ; Sale ; Trustees. should specify intention, 228. general power to sell does not include, 228. acquiescence in security under doubtful power, 228. effect of power to creditor to take possession and receive profits, 229. power must be exercised in accordance with instrument creating it, 229. where exercised to secure debt contracted on improper security, 229. where consistent wth general power to mortgage, 229. security under, may be good though mode of making wrong, 229. no debt at law where maker has no capacity to contract it, 230. how far security may be good in equity though lender not empowered to borrow, 230. power must be exercised consistently with object, 231. INDEX. 11G7 rOWER TO UOUTG AGE— cotit in tied. effect of this rule ujion .securities on public undertakings, 231—233. where included in power to sell, 2-17. under power to sell or mortgage, no sale after mortgage xemhlc, 247. charge of debts on real estate does not authorize mortgage for purpose of business, 200. power to mortgage does not authorize mortgage for existing debt, 250. how far seciu-ity in excess of power treated as valid, 200. PRESERVATION, of estate, payments for, allowed, 883. PRESUMPTION, Of death, nature and extent of, 320—322. generally ari.ses after seven years, 320. probable origin of rule, 320, n. not less than ten years generally sufficient for change of property, 321. as to presumption of time of death within the seven years, 322. death not presumed till after diligent inquiry, 322. security to refund in case of re-appearance, 322. French law as to presumption of death and disposal of property, 322. PRINTER, has specific lien, 181. PRIORITY. See Defective Assttrance ; Tackixg. bona fide advance on deposit without notice of trust will prevail against trust, 41. registration under Irish Act is effectual according to, 49. in bankruptcy in respect of judgment, 89. in administration of estates in respect of unregistered judgments. 118, 110. registration not necessary where judgment is against executor, 118. of salvage liens, 520. Legal estate gives both at law and in equity, G40. pvisne mortgagee without notice of prior mortgage getting in term, 640. where quasi legal estate obtained by delay of prior incumbrancer, 641. Eqihtable priority, eqnitable mortgagee without notice may tack against mortgagor and tho.se who claim under him, 670. equitable ]irioritios are generally according to date, 670. excei)tii)n in salvage cases, 670. application of principle of exception, 670, 671. equitable incumbrancer may get priority by means of legal title, 671. when allowed to retain deeds against legal mortgagee, 671. no advantage by legal interest with notice of trust, 671, 672. equitable mortgagee with notice of former mortgage is affected by former mortgagee's notice, 672. claim of equitable mortgagee prevails against lien of mortgagor's solicitor, 672. equitable incumbrancer not protected by his assignor's concealment of notice, mortgagee under breach of trust cannot claim against beneficiarv-, (k 3. mortgagor ^vith infirm title cannot convoy equitable interest, 673. puisne mortgagee with notice cannot oust prior equitable mortgagee, 673. first incumbrancer cannot iirejudiee subsequent, 673. produce of sale bound by same equities as estate, 674. puisni incumbrancer buying estate discharged must apply purchase-money according to priorities, 674. priorities under Irish decree for sale, 674. priority where securities effected by fraud or in breach of tnist, 675, 676. trustee's right to indemnity prcferreil to charge by cestui que trust, 676. as between mortgagor and mortgagee, mortgage affects whole of mort- gagor's interest, 677. rule where incnmbrancer has priority over one of earlier date, but not over one postponed to him, 677. priority between unpaid vendor and claimant under purchaser, 678. 1168 INDEX. TniOmTY-co/if;>nn'(?. Illght to consvllclatc securities, nature and principles of right, 678. acted upon at law, G79. distinguished fi-om legal right to tack, G7!). mortgagee entitled, though securities vested in trustees, 679. and -where he claims by assignment, 679. though he had no previous interest in security, 680. and had notice of subsequent incumbrance, 680. right not affected by sale under power, 680. or by change in ownership of estate, 680. and though purchaser of ecjuity had no notice, 680. purchaser of equity redeeming may hold till paid cvcrvthing, 680. pidsn^ mortgagee able to charge estate not originally lialde, 680. rule where one estate is sold and the other mortgaged after mortgage of both, 681. how redeeming assignee deprived of right to hold both securities, 681. mortgagee may consolidate whether securities unite before or after union of equities of redemption, 682. where distinct shares of estate are mortgaged after splitting of equity of re- demption, 683. no consolidation against person engaged in one security only, 683, 684. where no consolidation of tenant for life's security against remainderman, 684. right of consolidation not limited to cases of legal securities, 684 — 686. right of consolidation belongs to judgment creditors, 686. oven-ides right of surety for one debt, 686. applies to securities of different natures, 686. applies equally in proceedings to redeem and to realize securities, 686. and in bankruptcy, 686. mortgagor cannot insist upon, as against puisne mortgagee, 687. no right to consolidate where one security satisfied before the other is com- plete, 687. Priority in securities on chattels, notice on assignments of chattels gives priority, 668. inquiry should be made as to prior charges, 688. notice does not operate until fund has reached trustee, 689. but should be given at earliest pei'iod, 689. priority of holder of fund, 689. extends to rights of set-oii and other equities, 689. no priority by notice to accountant-general, 690. priority by .stop order, 690, 691. rule as to notice binds assignees in bankruptcy, 691. priority of bankrupt's assignees under statutory rights, 691, 692. priority of judgment creditor with charging order, 692, 693. no y)riority against cestui que trust by notice where trust is complete, 693, 694. mortgsigee not guilty of negligence not po.stponed by earlier notice of later incumbrancer, 694. mortgagee of freight must take possession before completion of voyage, 69.5. what con.stitutes such completion, 69.5. priority may be saved by notice where possession impossible, 69.5. mortgagee's neglect to take possession gives no right to later incumbrancer with notice, 696. where erpial innocence and diligence, priority of time prevails, 696. equitable assignee of chose in action is subject to prior ecpiitics, 696. Priority under maritime law, under French Code de Commerce, 697, n. precedence is according to lex fori, 698. last in date is paid first, 698. ransom of ship prevails over prior mortgage, 698. salvage of cargo over respondentia, 698. rule of precedence only applies where salvage, 698, 699. so in case of land, 699. no precedence beyond necessity, 699. priority of lien for wages, 699. iXDi:x. 11G9 VmOlUTY—continiad. Priority under maritime /</?« — continued. " master's claim for \va<;es cannot compete with marinerb', fiO'j, "00. how far against Ixhk (holder, 700. existing; maritime lien preferred to shipwri^^ht's possessory lien, 700. hnt not continuiiifi' or imi)erfect claims, 700. where lien for damage preferreil to mi)rt;,'a>>;e or bottomry bond, 700. where tseveral causes first decree preferred, 701. no distinction between ship and proceeds, 701. By statute, Jtctjistration acts, rules of priority under, in Eiifrland and Ireland, 702. where nnregi^tered deed not postponed to re<:istered jud<rmcnt, 7o4. where um-cpstered deed i)rotected by one ref^istered, 704. whether earlier and later deeds must be by same grantor, 705. no priority by registered assignment of money charged on land, 70.5. registered charge not preferred to subsequent mortgage under power, 70.5. othenvise as to judgment under 1 & 2 Vict. c. 110. . 70G. unregistered appointment ])ostponcd, 70(i. registration protects mortgagor's title, 706. no priority by informal registration, 70fi. effect of non-registration within limited period where inevitable, 707. priority of documents registered on same day is according to numbers at- tached, 707. settlement of priorities under Land Transfer Act, 708. Shipping acts, under 8 & 9 Vict. c. 8'.i, was according to date of indorsement of certificate, 708. under act of 18."i4, according to date of registration, 709. how far unregistered further charge can be tacked, 709. priority of security duly registered over assignees in bankniptcy of mort- gagor, 710, 711. priorities under act of 18.'>4 of certificates of inortgage, 711. registered mortgagee is owner for puqjose of security, 712. Judgment acts, judgment creditor holds, subject to same liabilities as debtor, 712. prior equitable interests prevail against execution as well as against judg- ment, 713. anil under 1 & 2 Vict. c. 110, as well as old law, 713. different kinds of eciuities which prevail against judgments, 713, 714. rights of crown against debtors, 714, 713. crown does not lose priority where security is breach of trust against it, 716. equitable mortgagee protected against judgment notwithstanding elegit, 716—718. so under Irish Act, in case of registered afiidavit, 719. equitable incumbrancer of chattels, Mith complete title, has priority over subsequent judgment creditor, 719. before 1 & 2 Vict. c. 110, judgment defeated by moi-tgage under earlier power, 719. assignee of personalty has priority over subsequent judgment creditor, though not comideted by notice. 720. judgment creditor not prior to earlier voluntary settlement as purchaser under 27 Eli/.. 721. judgment creditor of heir or devisee has no priority over simple contract debts of ancestor or devisor, 721. where he has priority over creditors under trust deed, 721. lauds aliened by heir not liable to execution by creditors of ancestor, 721. chju-ge of judgment creditor not affected by statute which suspends remcily, 722. sequestration against benefice will not have priority over earlier security, 722. execution creditor loses prioritv over property not sold under execution, 722. order where judgment creditor received more than amount due, 722. priorities of securities registered in county and Common Picas, 72o. 1170 INDEX. PKIORITY BY Statute -continued. Judgment acts — continued. priorities of judgment creditors not affected by notice, 723. priority of curlier county registration of judgment good, though entered up \vith notice of earlier judgment, 72-i. decree of equity, registered with notice of eai'lier um-egistered conveyance, ■will not jirevail, 724. priority under docketed judgment, 724. under judgment registered, but not docketed, 725. in administration of assets, unregistered judgment has no priority over simple contract debts, 725. effect of 23 & 24 Vict. c. 38, s. 4, as to registration, 725. non-registration does not affect priority against executors, 725. where priority of time is material in administration of assets, 726. where judgment and decree for administration obtained on same day, 726. effect of judgment pending administration suit, 726. effect of attachment in Lord Mayor's Court in administration of assets, 726. where priority given to foreign judgment, 726. priority of judgment obtained by default, 727. priority of executions where iirst is void by debtor's bankruptcy, 727. Under Bankrvpt Acts, where secured creditor is only entitled rateably, 727. where seizure and sale must be complete before filing petition for adjudica- tion, 727, 728. effect of provisions in Irish and English bankriapt acts as to executions on judgments by default, confession or nil dicit, 728 — 730. priorities under Sheriff's Act (Ireland), 732, 733. effect of warrant of attorney under Insolvent Debtors' Act by insolvent, 732. priority of friendly society on bankruptcy of treasurer, 733. priority of commissioners under West India Estate Acts, 733. priority of mortgagees of public works and companies, 733. Loss of, by neglect or fraud as to deeds, 846, 852. See Deeds. where vendor delivers conveyance, with receipt, for unpaid pmxhase-money, 852. where one of several transferors, being solicitor of transferee, receives money, 852. where transferee hands deeds to original mortgagee, being solicitor of mort- gagor, 853. no excuse for priormortgagee that another induced him to commit fraud, 853. to affect mortgagee with fraud of agent, relation of principal and agent must subsist at the time, 853. priority lost by leading another to act upon a certain state of things, 854. effects and instances of rule, 854, 855. stranger may be made liable for his false rejjrescntation, 855. not lost by wilful obstruction of another creditor, 855. case of bankrupt allowed to carry on ])usiness without certificate, 855. vendor of estate leaving price under control of one trustee, 856. where receipts for charges on estate signed under agreement for mortgage, 856. where person concurs in arrangement in ignorance of his right, 856. where priority not lost by omission to make salvage advances, 856. effect of fraud by married women and infants, 857. PROBATE, COURT OF, order for payment has not effect of judgment, 106. PRODUCTION. See Deeds. I'ROHIBITION, against incumbrance, effect of, 226 — 228. does not affect charge upon income already due, 228. in case of married women, 239. PUBLIC WORKS AND FISHERIES ACTS, Bccurities under, 1006. INDEX. 1171 rURCHASE-MONEY, how disposition of surplus should he provided for in power of sale, 507, 508. as to payment of interest on surplus, 508, at whose risk invested, 1011. for whose benefit, 1012 on sale by crown, 1012. where fund is blended with other monies, 1012. PURCIIASEKS, for valuable consideration, not affected by judgment acts, 4R9. QUARANTINE, effect of order for, upon right to stop in transitu, 839, 840, n. RAILWAY COMrANIES, statutory securities by, 1096. REAL ESTATE, mortgaged estate not treated as, on ground of absolute title by possession, 373. RECEIPT, absence of, on conveyance, notice of vendor's lien, 598. RECEIVER, Apjjointment of, iy parties, person entitled to debt may appoint under 23 & 24 Vict. c. 14."), s. 11..309. manner of appointment, 400. statutory receiver is agent of owner of mortgaged property, 400. powers of statutory receiver, 400. removal of, and appointment of new, 400. may retain commission, 400. his power to insure, 401. is agent of mortgagor, 401. under joint appointment of mortgagor and mortgagee may demand posses- sion under 4 Geo. 2, c. 28.. 401. so of receiver under court, 401. right of mortgagee against receiver of judgment creditor under Municipal Corporation Act, 419, n. appointment of, under Sheriffs' Act, does not decide questions of equitable right, 732. where mortgagee allowed expenses of, 890, 891. Appointment of , hy court, person applying for, must be interested, 402. form of application, 402. suit for ai)iiointment of only should not be brought to heiiring, 402. api)lication for, should not he ex parte, 403. nor on personal service without leave, 403. where may be in chambers, 403. evidence on, 403. appointment of new, where original has not acted, 404. appointment unwillingly distiarbed, 404. appointment of new consignee before death of acting, 404. on decree pro confesso receiver cannot act without leave of com't, 404. nature and extent of security by, 405. arrangements for lessening security, 405. when sureties dispensed with, 405. inrolment of recognizance, 40G. Kature of apjiointment, for whose benefit, 40H. does not alTect rights of parties, 406. nor Statute of Limitations, 400. when rent jiaid in hy, does not belong to incumbrancer, 407. For and a{iainst ivhom appointrd, not generally for legal incumbrancer, 407. nor always where legal right obstructed, 407. where equitable initimbrancer may have, 40S. but his right is subject to that of legal incumbrancer, 408. 1172 INDEX. llECFAVEll—coitfiinirJ. F'or and against whom appointed — continued. M'here legal incumbrancer has prior security, 409. when in favour of owners of prior charges in possession, 409. may be against incumliranccr in possession as tenant, 409. prior mortgagee opposing must swetu- that something is due, 409. where amount cannot be ascertained by reason of negligence, presumption that nothing is due, 410. definite sum must be sworn to, 410. appointment without prejudice to prior legal owner out of possession, 410. proceedings of prior mortgagee where appointment was in his absence, 410. where appointed against legal title, 411. such appointment made unwillingly, 411. nmst be probability of establishment of adverse title, 411. where legal estate is in trustees, 412. or in claimants under voluntary settlement, 412. where applicant cannot use legal remedy, 412. not where effect would be to establish disputed right, 412. not where legal title to ship was in question, 413. M'here not against estate vested in trustees, 413. nor against consignees, 413. v.here on death, disclaimer or misconduct of trustees, 413. where against legal joint tenant or tenant in common, 414. where some of the owTiers are infants, 414. against mortgagor in possession with legal title, 414. over rents where several mortgagors tenants in common, 41.5. not generally in redemption suit, 415. not on defendant's application, plaintiff opposing, 41 T). where defendant entitled to, against co-defendant, 41."). as part of terms on enlarging time for redemption, 41.j. where equitable owmer out of jurisdiction, 41 G. ])ower of court to appoint not affected by testamentary appointment of guardian, 416. where judgment creditor may have, 416. appointment of, under Sheriffs' Acts in Ireland, .t & 6 Will. 4, c. o.) ; 3 & 4 Vict. c. 105 ; and 19 & 20 Vict. c. 77. .417— 421. manner and conditions of appointment under acts, 418, 420. ex parte ap])lication for, under acts not a lis pendens, 421. Over what property appointed, when over government pension or public office, 421. when over rates and tolls, 421, 422. over public undertaking, 422. under Companies Clauses Act, 422. under Municijjal Corporations Acts, 422, n. profits of fellowship, 423. of canonry, 423. not of half-pay of officers, &c., 423. or pension to support dignity, 423. or profits of ecclesiastical benefice, 424. of mines at instance of part owner, 424. when of land of tenants in common, 424. of colonial estate, 424. of realty or personalty in foreign country or dependency, 424, 425. of unsold part of pledge, 499. At nvhat stage of catise, where before answer, 425. after answer pending plea, 425. before appearance, 425. before service of copy Inll, 425. where defendant out of jurisdiction, 426. where at hearing, 426, 427. where after decree, 427. not before hearing on evidence taken in cause, 427. INDEX. 1175 HECFAVEU—continved. Who may he appointed, person appointed in chambers or by decree, 427, 42S, must have time for the duties, 428. practisinf^ barrister may be, 428. but not peer, 428. nor, semhle, member of House of Commons, 42H. nor judge's elerii, 429. where solicitor may be, 429. not ])ersoii under security to crowTi, 429. nor next friend or his son, 429. where trustee eligible, 429. where guardian tenant for life, person interested or jiarty to suit, -l.'JO. West India mortgagee where not to Ije eon.signee, 4W. preference to nominee of mortgagee or ecjuitable tenant for life, 4.'JU. A uthorltij of, not of liis own authority to bring ejectment, 430. or defend action, 430. one not to take possession against another, 430. but not restrained on application of person not interested, 431. extent of his power to distrain, 431. where leave to distrain refused, 432. tenants should attorn to, 431. effect of attornment to, 431. how receiver gets into possession, 431, 432. delivery of court rolls to, 432. court not willing to give him independent powers, 432. tenants may be ordered to attorn to se(|uestrator, 433. ])ractice as to letting by receiver, 433, 434. where may give notice to quit, 434. where he should move for leave to let, 434. in case of colonial estate, 434. lease not allowed to bind infant, 434. where bound by unauthorized lease, 434. effect of lease by tenant for Mh' pendente lite after appointment of receiver, 435. where power given him to inspect property, 435. from what time rents bound by appointment of, 435. when he can perform his duties, 435. his right to rents in arrear and produce, 435, 43(5. right of, to rent and arrears of rent, 43B, 8G7, 868. must pay balance to prior incuml>rancer who takes possession, 436. duty of, in case of interference with rents, 436. to whom money received by belongs, 436. rights to, of prior mortgagees, 437. not directed to keep down interest till security established, 437. liight of, to apply to court, rule as to his taking proceedings, 437. does not lose his privilege where he is party to cause, 438. where he should join in proceeding, 438. Possession of, possessioTi of, is possession of court, 438. cannot be disturl)ed without leave of court, 43S, 439. authority of, only to be questioned in court, 439. order of ajipointment must be distinct, 439. should <lirect delivery of pos,session or attornment, 440. how court deals with sheriff disturbing receiver, 440. how execution creditor protected, 440. exercise by I'ourt of power to commit, 441. where sheriff seizing under court not protected by it, 441. remedies of persons clainii'ig jiaramount interests to receiver, 441, 412. where prior incumbrancer gnilty of delay, 443. mode of apjdication for leave to proceed, 443. Expenditure by, general rule as to, 443, 444. in case of unauthorized expenditure, 444. U 74 IXDEX. HECTAYEH— continued. Liabilities of, extent of liability, 444. where he may deposit money with banker, 444, 445. liable for loss of fund put out of his control, though as check upon him- self, 445. person assuming character of, is responsible as receiver, 445. application of money paid to ■wrong person, 44G. wliere wrongful payment made by receiver's agent, 44G. liability of receiver aj)pointed by colonial court, 446. liability of consignees of produce, 44G. where receiver may be sued, 446. not necessary party to bill by first incumbrancer, 447. how receipt of money by receiver prevented, 447. who suffers for loss or waste by receiver, 447. where ordered to account again, 447. Alloivances of, mode of remuneration of, 447, 448. settled at passing of accounts, 448. has no vested right to receive money for sake of poundage, 448. j)ractice in lunacy, 448. where right lost by omission to pass accounts no allowance against infants, 448. where forfeited costs not struck out after being allowed, 449. where amount reconsidered, 449. no allowance generally for voluntary act, 449. where expenses for allowed, 449. costs of hostile application against receiver, 449. no expenses or allowance for unauthorized journey, 450. or where authorized by some of parties, 450. as to allowance for scheme, &c., of estate, 450. fees in judges' chambers on passing accounts, 450. Passing accounts, mode of passing, 451. order for production of documents, 452. process upon receiver's default, 452. four days' order by one receiver against another, 452. Payment of balances by, orders as to payment of balances, 452. receiver may not make interest on interim receipts, 453. where he should obtain order to pay in surplus rents, 453. may be deprived of salary and charged interest, 453. inquiry as to what might have been laid out, 453. as to inquiry after accounts passed, 454. proceedings where accounts not regularly passed, 454. committal of receiver for non-payment of balance, 455. remedies against receiver after discharge, 455. after dismissal of bill, 455. admission of assets by receivers' executor makes him liable, 455. if receiver die no summary jurisdictirm against executor, 455. account against executor and surety, 455. where recognizance enforced against surety, before amount due ascertained, 456. recognizance not enforced without leave, 456. extent of surety's liability, 456. proceedings by surety when sued, 457. surety stands in receiver's place, 457. Discharge of, upon whose application discharged, 457. where bill dismissed or proceedings stayed, 457. continuance of, for prior creditors, 458. where appointed during minorities, 458. substitution of trustees for, 458. receiver or sureties not generally discharged on own application, 458. what are grounds for discharge, 458. allowing owner to retain possession no reason, 459. INDKX. 11 7-3 lU^CElVTJi—conti mud. Discharge of — continued, irrejiuhirity in accounts, 459. application for, how made, 4r)9. ou^ht not to appear ui»t)n, 459. form of order to vacate rcco}rni/.ance, 459. discharfjc of recofiiiizance on surety's api)lication, 4G0. notice of apjflication for dischart,a' sliould l)e served personally, 4C0. remedy ajjainst discharged receiver not paying in haluuce, 4GU. deposit of accounts when receivership completed, 460. RECOGNIZANCE. See Judgjibnts. nature of, under jud<;mcnt acts, 91, n. at Uiw and by way of statute merchant and statute staple, 91, n. stamps on, 1121. RECONVEYANCE, petition for, in lunacy cases, should be presented by committee, 965, 966. mortgagee with notice of equitable claim on estate should not convey to mortgagor, 967. trustee of mortgagee bound to assign according to his direction, 967. where mortgagee has notice of prior equitable right, he may refuse to re- assign to mortgagor, 1002. form of decree for reconveyance, 1 002. where estate sold under power of sale, 1003. on redemption by pei-son with limited interest, 1003. in case of settled estates or infants, lOO.'J, 1004. subject to mesne and paramount claims after time enlarged, 1004. where foreclosing party is trustee, 1004. mortgagee not bound to convey to another person as mortgagee, 1005. where he is bound to convey so as to keep secm-ity on foot, 1005. form of reconveyance, 1005. of discharge of equitable mortgage, 1005. court of law cannot order, 100(). receipt operates as under Building Societies and Merchant Shipping Acts, lOOG, 1007. stamps on, 1120. RECORDS, judicial, no lien on for fees of officers, 182. REDEMPTION. See Decree; Dismissal. See *7kttt'e^ and foreclosure generally reciprocal rights, 2. non-exercise of right generally followed by foreclosure, 2. where omission of proviso for may be sujiplicd, 11, 12. what will show right of where not expressed, Hi. right to, of owner of goods pledged by factor without authority, 257. construction of proviso for at law, 262. different etfect of, where chattels are mortgaged and where pledged, 263. how condition is construed in equity, 263. person seeking must show good title, 204. mortgagor redeeming may not contest mortgagee's title, 265. where title adverse to equity is made out, 2H5. where court acts on. prima facie title of plaintiff, 265. where offer to redeem is necessary, 266, 267. in case of annuity, 267 and n. form and effect o"f offer to redeem, 26S, 269. where prayer for relief amounts to prayer for redemption, 269. effect of rule against multifariousness upon suits for, 269, 270. Defences to hill for, release of equity, 270. unless improperly obtained, 271. possession under foreclosure decree inrolled, 271. cannot be pleaded until final order, 272. who bound by decree of, 272. where land is out of jurisdiction, 273. 1176 INDEX. EEDEMPTION— rr^wf/// iwrl. Dffenccx to hill for — coiitimicil. or situate in Inn of Court, '1~Z. plea that property is not sul)ject to mortgage, 274. plea of paramount title, 274. loss of equity under statute of clandestine mortgages, 274. construction of act, 27(5. cannot be used by dishonest mortgagee, 276. statute may be pleaded by assignee, 27G. Time for. 8ee Limitations, Statute of. mortgage not redeemable before day fixed, 277, 284. distinction in case of mere trust for sale, 277, n. right may be postponed, 278. but not generally contined to given period or particular class, 278. original agreement for discharge of, not allowed, 279. right of pre-emption may be given to mortgagee, 280. rules concerning redemption of chattels and stock, 280, 281. part of estate cannot generally be redeemed separately, 283, 284. ■what persons generally entitled to, 293. causes of uncertainty as to, 293. jjrovisions of Fines and Recoveries Act as to mortgages by tenants iu tail, 294. presumption in other cases against intent to alter rights, 294. mere difference in form of reservation does not make change, 294. purpose to change rights must appear, 295. different reservation of equity of settled estate makes no change, 295. contra where equity of fee simple estate is settled, 29G. effect of limitation of estate after satisfaction of debt, 296. in case of mortgage for term and declaration affecting fee, 296. distinction in Anson v. Lee considered, 297. cases of Barnett v. Wilson and Whithread v. Smith, 300. where vdie concurs in mortgage wth husband, 301. effect of declaration that tenant for life should keep down interest where remainderman joins in mortgage, 302. effect of reconveyance to uses to bar dower after devise under old law of wills, 302. nrife's and snretifs right to redeem her real and personal estate, 302, 303. where husband obtains new lease of wife's leasehold, 303. surety's right to redeem, 303. married woman mortgaging for husband, redeems as surety, 304. how wife sues for redemption, 304. bankrupt husband may be co-jdaintiff, 304. joint tenants and tenants in common, their right to redeem, 30-1. rights of tenant in tail, tenant for life, and remainderman,, 305. remainderman has no right against tenant for life, 305. cannot redeem without liis consent, 305. tenant for life cannot compel redemption against remainderman, 306. consequence of death of tenant for life pending suit of his mortgagee, 306. remainderman obtains no right of, by onussion to make tenant for life keep down interest, 306. right of jointress, 306. of doivress, 307. of tenant hy curtesu, 307, 308. of f/nardians and committees, 308. oi forfeiture and. escheat, 30H. of cron-n under forfeiture, 309—311. of lord under escheat, 311. of assignee under voluntary or other conveyance, 312. nature oi puisni mortgagee's right to, 312. terms of redcmittion liy voluntary grantee, 313. right of assignee oi' piii.in^ mortgage after decree in foreclosure suit, 313. where assignee has no beneficial intei-est, 314. lessee of mortgagor may redeem, 314. where cestm que trust of leasehold in Ireland may redeem, :!I4. judgment creditor, right of, to redeem, 314. general creditor, right of, to redeem, 316, 317. IN'DLX, 1177 llETlEyiTTlO'S— continued. Time for— coniinaed. trvstecs for creilitors, right of, 317. sequestratorg, rij^ht of, to redeem, 317. assignees in bankruptcy, 318. devisees of ecjuity of redem]ition, 310. legatee of legacy charged on land, 310. heir at law, 319. where entitled on presumption of nncestor'.s death, 320—322. beneficial owner of equity of redemption may redeem, trustees refusing, 32G. not after bankruptcy, 326. right of per.sonal representative to redeem leasehold or other chattel.s, .320. none as to term created for purixt.se of .security, 32H. where administrator of lessee for years mortgages, 326. when executor of outlaw may redeem, 327. right to redeem goods, 328. whether representative of pledgor can redeem, 328, 329. under Benefit Building Societies Acts, 329. not decreed on failure of suit to deliver up securities for fraud, .".9."). decree for, against subsequent incumbrancers, on proof of their iuciuii- brances, 395. pi-ice of, is same whether suit by mortgagor or mortgagee, 978. where bill for, dismissed, last incumbrancer becomes quasi mortgagor, 979. may be permissive only, 980. defendant with first right of, entitled to perfect decree against mortgagee, 981. fonn of decrees for successive, 1044, 1047. under Lands Clauses Act, 1090. KEDEMPTION, EQUITY OF, nature and incidents of, 263, 264. recognized at law, 264. may arise by inference only, 264. may be established by evidence, 264. adverse claimants of, cannot sue as co-plaintiffs, 26.">. where several persons entitled may sue, 265. ■prima facie title to, is sufficient, 323. REGISTER OF SHIP, delivery of, on sale in Admiralty Court, 1032. REGISTRATION. See Bills OF Sale Act; rraoRiTY; Shippino. documents requiring registration under Middlesex, Yorkshire, Hull and Iri.sh Acts, 48. nnder Irish Act registered instruments effectual according to priority of re- gistration and right of grantor, 49. effect of registration of wills under, 49. in case of concealment, suppression or contest as to, 49, 50. entry in register of discharge of mortgage, 50. to what property Registry Acts extend, 50. as to leases not exceeding twenty-one years under English and Irish Acts, 51. where registration of equitable securities necessary, 52. under act to facilitate proof of title to and conveyance of real estates, 52. of annuities, 53, 54. nnder Bills of Sale Act, .53— ."9. of securities under Merchant Shipping Act, 62. of judgments removed from inferior courts, 110. of orders for payment of money and costs under Bankrupt Acts, 111. of judgments under County Registration Acts, 112. under Old Docketing Acts and 1 & 2 Vict. c. 110, and subsequent acts, 112,113. enactments upon closing of dockets under act of William and Mary, 113. re-registration under 2 & 3 Vict. c. 11.. 11."?. effect of that statute in protecting registered incumbrancer, 114. M. VOL. II. 4 G 1178 INDEX. REGISTRATION— w^ff/nwf^. effect given to re-registration by 18 & 19 Vict. c. 15.. 114, 115. registration and re-registration of judgments, &c., on crown debts, 115, IIG. of lis petidenst, 116. of judgments in respect of preference in administration, 117, 118. of process of execution in respect of, 117, 119. registration of execution under 27 & 28 Vict. c. 112. . 119. necessity for, under County Acts, not affected by Judgment Acts, 120. is under control of master, 120. of affidavit as mortgage in Ireland, under 13 & 14 Vict. c. 29. . 120. effect of statute, 121. acts do not vitiate unregistered deed, 702. effect of registration in counties and Common Pleas upon priorities, 728. RELEASE, intention to release not sufficient in equity, if no release at law, 781. may be effected by cancellation, 782. act's of creditor may prevent him from enforcing security, though no release, 782. effect of reconveyance or release in consideration of fictitious securities, 782. creditor in such a case retains right against surety, 783. where mortgagor, after fraudulent release, makes another security, 783. effect of release of judgment, 783. stamps on, 1120. REMAINDERMAN, right of, to redeem, 305. not bound by Statute of Limitations till right of possession accrues, 390. RENTS, received by equitable mortgagee not recoverable by owner of estate at law, 6. no lien for, in favour of landlord who neglects to distrain, 139. rights to, when mortgagee is out of possession, 867, 868. how applied in discharge of several debts, 880. taking accounts of, 880, 881. RENUNCIATION, stamps on, 1120. REPUTED OWNERSHIP, of chattels, doctrine of, not affected by Bills of Sale Act, 60. RESCISSION OF CONTRACT. See Stoppage in Transitu, 824—823. RESPONDENTIA. And see Bottomry. is hypothecation of cargo, 84. nature and principles of, 85. as to notice of, to owners of cargo, 85. binds owners personally, 85. creditor on, may prove in bankruptcy, 544. REVERSION, mortgagee of, entitled both to sale and foreclosure, 525. REVERSIONARY INTERESTS, securities by owners of, where set aside, 211. where settlement of reversion good, 212. where sale of, is bad, conveyance stands as security, 212. where security upon may be good for actual advances, 212. where set aside unconditionally, 212. SALE. See Foreclosure. with proviso for repurchase, nature and requisites of, 14. power of, does not turn pledge into mortgage, 72. INDEX. 1179 SALE — continued. of goods subject to sliipowner's lien under Merchant Shipping Act, 18G2.. 189. in what cases power of, can be added to mortgage made under power, 2 tS. purchaser suliject to agreement fur mortgage is bound by power of sale iu mortgage, ^49. power of sale not implied in conveyance ordered to stand as security, 24'J. when incumbered property liable to, either by creditor or by judicial process, 497. produce of, is bound by same equities as estate, 674. priorities under Irish decree for, G74. L/uh-r pon-cr inrulrnt to Hccurttij, when right to, is vested in mortgagee or pleilgee of personalty, 497, 498. no right to, given by possessory lien, 4'JS, 4119. nor by lien for unpaid purchase-money, 499. except in either case by custom, 499. by pawnee not justified by notice requiring payment of more than debt, 498, n. Under express power, power of sale safer than trust, oOO. power not aR'eeted by joint demise by mortgagor and mortgagee to receiver, 500. must not be used for oppression or collateral purpo.se, oOO. money paid to prevent exercise of, may be recovered at law, 500. may be set aside for neglect or irregularity, 501. objections must be dearly disclosed, 501. no interference with exercise of power only because of mortgagor's objection, 501. bona fide sale not invalid because initiated by purchaser, 501. prevented where mortgagor exposed to liability under former contract, 50i. mortgagee must stop on tender of sum due, 501. where on tender of principal and interest only, 501. where y^* ?■(?/(« facie title to redeem made out iu suit, 502. not by mere tiling of bill to redeem, 502. mortgagee or his trustee cannot generally bid, 502. sale bad where clerk of mortgagee's solicitor has bid, 502. creditor named as trustee of trust deed not acting may buy, 502. where puisne mortgagee may buy, 502. execution creditor may buy from sheriff, 502. not restrainable where mortgagor's remedy confined to damages, 503. not generally restrained for want of notice, 503. effect of provisions requiring notice of, 503. by whom power should be exercisable, 504. power of, should be vested in personal representatives of mortgagee, 504. when power exercisable by devisees, assigns and survivors of mortgagees, 504. how first and second mortgagees may concur in, 505. continuance of power of, iq)on transfer, 505. power of, may be extended by reference, 505. where sale may be made subject to prior mortgage, 506. must not be private except by express authority, 506. what conditions may be used upon, 50G. purchaser with notice of irreguhxr sale not protected by usual clause as to irregularity, 5()(). must he made with proper discretion, 500. when mortgage may be taken for purchase-money, 507. effect of purchase by mortgagee of second mortgagee's interest, 507. purchaser under, not entitled to benefit of mortgagor's covenant to concur, 507. what evidence purchaser entitled to of right to exercise power, 507. how surplus purchase-money should be disposed of by })ower, 507, 508. where mortgagee not chargeable with interest on surplus pmchase-monev, 508. Under statutory pon-er, power of, given to mortgagee by 23 & 24 Vict. c. 1 45 . . .509 — 51 1. "402 1180 INDEX. SALE — continued. Under statutory ^ower— continued. does not apply to property not the subject of tenure, 509, n. only applies to instruments executed after date of statute, 511. and to securities for loan or debt, 511. after what period it can be exercised, 511. how far purchaser's title protected by, 511. effect of provision vestiufr property for all interest of mortgagor, 5ri. power of, under Land Kegistry Act, 512. under Merchant Shipping Act, 512. under Pawnbrokers' Act, 512, 513. Under judicial process, 513. by Court of Chancery under Equity Lmpi'ovement Act, 15 & 16 Vict. c. 80, s. 48.. 516. power of Court of Chancery in Ii-eland, under 19 & 20 Vict. c. 77, s. C.. 516, n. under 15 & 16 Vict, coui't has discretion, 516. is proper i-emedy in case of mere charge or trust for sale without condition, 515, 516. how power is exercised, 516, 517. sale by Court of Chancery under inherent power, 517. legal mortgagee not generally entitled to, 517. is proper relief for equitable incumbrancer with charge or lien, 518. puisne mortgagee not entitled to, 518. equitable mortgagee with deposit only may have, 520. right of judgment creditors to, 521, 522. under Judgment Law Amendment Act, 27 & 28 Vict. c. 112, s. 4.. 523. right of mortgagee to, with scanty security, 524. right of mortgagee of reversion to, 525. and of advowson, 525. form of prayer for, 525. vendor's and other liens enforceable by, when established by decree, 525. when land taken by public company, 525. how far on trust pi'operty, 526. in case of salvage lien on West India estate, 526. in case of infant heir or devisee, 526, 527. where mortgagor has interest in security, 527. right of assignee of insolvent mortgagor, 527. where estate is in crown, 527, 528. may be ordered where proper though not prayed, 528. form of decree for, where paramount title, 528. always directed in Irish foreclosure suit, 528. Fur recovery of crown dehts, by Court of Exchequer, 529. notice of should be given to mortgagee, 530. may be ordered by any court of law or equity, 530. By Court of Admiralty, court must be satisfied as to validity of bond, 530. , where bond fraudulent, sale invalid, 531. sale of ship sul)ject to claims on proceeds, 531. delivery of register not necessary to complete sale by court, .■".:! I . where register ordered to be delivered, 531. In hankrnptcy, under order of 1794... 531. under rules of 1852, .532, 533. rights of unpaid vendors to sale and proof for deficiency, 533. unpaid vendor's consent necessary for sale, 533. no sale were security is tainted, 534. or made in contemjdation of bankruptcy, 534. or in case of stale demand, 534. not an objection to, that debt could not be called in, 534. effect of covenant not to assign lease, 534. mortgagee may apply to court, waiving special power, 5.35. when and what submortgagee may sell, 535. deposit or memorandum not necessary for order to sell, 535. INDEX. 1181 SALE — continued. In bankruptcy — continued. but debt must be evideneed, 535. right not affected by inipeil'ection in security, 53r». nor by interest of third person, 5;5(}. nor by prior security wliere inoperative, 536. where sale will not be ordered, 530, 537. how arraugeil where mortgagee is petitioning creditor or assignee, 537. mortgagee mu.st bring before court depositees of deeds, 5;»7. effect of mortgagee's application for second sale, 537. Court of Bankruptcy cannot compel completion of pui-chasc, 537. cannot order sale where bankruptcy suspended, 537. Decree for, form"of, 1011, 1013. at what period directed under 15 & 16 Vict. c. 86.. 101 L'. when made without mortgagee's consent deposit is indispensable, 1012. how amount of deposit fixed, 1013. to whom conduct of sale given, 1013. what time given for redemption in cases of, 1013, 1014. when mortgagee may have leave to bid at, 1014. when leave given nunc pro tunc in liaiiknipt( y, 1015. course where unauthorized purchase not coutirmed, 1015. mortgagee buying must pay deposit, lOKi. who has conduct of, in bankruptcy, lUlU. what persons not allowed to purchase, 1016, 1017. when reserved bidding allowed, 1017. mortgagee may insist on execution of order for, 1017. rights of equitable incumbrancers are bound by decree for, 1017. when mortgagee purchasing may have possession before time fixe<l, 1018. not directed against infant unless for his benefit, 1024. SALVAGE, where lien for, 182. See LiEXS. priority in cases of, 670, 699. See Bottomry. is lien on ship, 698. SARK, ISLE OF, a home port, 82. SATISFACTION. See Payment. SCRIVENER, as to payment of principal or intci'cst to, 77r>, 777. SECURITY. See LiEX ; Bottomry; Judgment; Mortgage; Pledge. nature and incident^ of, 1. created by contract t)r arises by law, 2. not by mere contract to deposit, 2. contract to boiTow or lend on. not enforced in equity, 2. intention to create, carried out, 2. takes effect according to intention, 2. different kinds of those created by contract, 4. when void or imperfect, 193. when not void for all purposes, 193. fraudulent. See Fraudulext SECURITIES, upon property forbidden to be incumbered, 22t;. what act crea'tes forfeiture within prohibition, 226. effect of deposit of lease, 227. effect of giving warrant of attorney or cognovit followed by judgment and executimi, 227. effect of charging order under 1 & 2 Vict. c. 110.. i:27. SEQUESTRATION. , nature of. not altered by act giving decree force of judgment, lOh. of ecclesiastical benefice in bankruptcy, 224. 1182 INDEX. SEQUESTRATION— coM««7/fl<^. right of sequestrator to redeem, ^\7. on decree pro ro/ifesso seijiR'strator cannot act without leave of court, 404. where discharged by appointment of receiver, 459. judgment creditor may obtain, 487. proceedings upon, 487. sometimes directed liy Court of Chancery to bishop, 487. SET-OFF, effect of, upon attornies' lien on judgment, 147, 148. does not take effect ipso jure in England, 7I3S. surety's right of, in bankruptcy, 811. does not destroy lien, 817. of interest on debi and purchase-money, 923. none of interest on legacy by mortgagee against mortgage debt, 923. of interest in bankruptcy, 923, 924. how benefit of given on decree, 982. SHERIFFS' ACT, effect of appointment of receiver under, 731, 732. SHIP. See Bottomry ; Shipping. loss of security by capture of, 858. no total loss if retaken or still in existence, 858. sold in foreign port is subject to bottomry rights, 858. SHIPOWNER, LIEN OF, entitled to lien for passage money and freight, 185. what property bound by, 185. on what freight lien arises, 185, right to, affected by manner of letting ship and time of delivering cargo, 186. court looks at effect of whole contract, 186. effect of words of demise, 18G. where freight payable before delivery of cargo, 186. where goods shipped, shipowner is entitled to earn freight, 187. where consignees abroad procure cargo on homeward freight, 187. has no lien for port charges or demurrage, 188. where not for wharfage, 188. regulations as to, of Merchant Shipping Act, 1862. . 188 — 191. SHIPPING, how mortgaged under statutes, 60 — 64. under 8 & 9 Vict. c. 89.. 60. creation of equitable interests in, under 8 & 9 Vict., 61. mortgage of, under Merchant Shipping Act, 1854.. 62. registration of mortgage of, 62. registration of transfer of security, 62. of transmis.sion of mortgagee's interest, 62. certificate by registrar with power of mortgage or sale, 63. regi.stration of particulars of, 63. exercise of power contained in certificate, 63. cancellation of certificate, 63. loss or obliteration of certificate, 63. revocation of power in certificate, 64. as to necessity for registration, 64. mortgage of, made before completion and registered after registration by owner, good against his assignees in bankruptcy, 64. no valid mortgage of, unless forms of acts complied with, 65. registered transfer of, may be treated as security, 65. certificate of registry of ship cannot be pledged, 66. exception to ruk; as to number of registered owners, 66. mortgages of, not affected by Bills of Sale Act, 1854,. 68. right of mortgagee to use, 481 — 483. earnings of, pass to mortgagee, 483. liable for expenses in hands of mortgagee, 483. IXDEX. 1183 SUlFPI'SG—rnntimied. assurance of, not according to statutes, not assisted in equity, 640. or at law, 047. in case of fraud, 647. relief jrivcn where contract relates only to proceed.s of sale, 047. where intended niortj,mge is not registered as security, 648. where mortgagee allowed to sue, notwithstanding want of strict compliance with act.s, 709, 710. stamps on securities relating to, 1113. See Exemptions. SHIPPING NOTE, will not pass property in goods, 833. SHIPWRIGHT, has specific lien, 181. where he may enforce lien against mortgagee, 482, 483. SOLICITOE, effect of possession by, of clients' deeds, 32. lien of, upon fruits of judgment, 140—148. See LlENS. entitled to general lien, 103, 168. General lien, of, only gives right of detainer, 168. extent of, 108. to what property applicable, 169. property must be hfeld in character of attorney or solicitor, 1G9. only binds documents of employer, 170. where employer has limited or special pi'operty, 170. in cases of treaty for loan, 170, 171. in respect of mortgagee's costs, 171. in case of fraudulent sale, 171. solicitor bound by equities which bind client, 171. no lien after notice of subsequent equities, I7l-'. documents must be in custody of person whose costs are in question, 172. right of London agents of country solicitor, 172. no lien for business wrongfully done, 173. right when solicitor dischai-ges himself, 173. right of client in that case, 173. where solicitor refu.ses to proceed without costs, 174. where he disputes remuneration, 174. misconducts himself, 174. dissolves partnership, 174. becomes bankrupt, 174. right of new solicitor in suit, 174. lien of representatives of deceased solicitor, 175. right when solicitor is discharged by client, 175. where he voluntarily produces papers, 175. suit not suspended till payment of solicitor, 175. where bill not properly delivered, papers must be given up, 176. where solicitor offers to proceed, 1 76. is only right between client and solicitor, 176. where" client bound to produce, production is without prej udice to lien, 1 76. where lien is collateral to cause, 176. where claim must be paid before production, 177. where document is impeached by suit, 177. where detention endangers client's property, 177. lien will not prevent completion of order of court, 177. in case of suit by next friend repudiated by plaintiff, 177. where deeds are in solicitor's hands only for pui7)oses of suit, 177. client ordered to produce must discharge lien, 178. where deeds belong to a trust, 178. where lien is claimed on estate of lunatic, 178. no lien on client's will, 170. nor on proceedings in bankruptcy, 179. where delivery ordered summarily at law and in equity, 170, 180. remedy where lien disputed, 180. 1184 IXDEX. aOLlCITOli—eontinned. General lien of — continued, drafts and copies must be delivered up, 180. statutory power of courts to order delivery, 1 80. Securities to, when securities to, by client, may be set aside, 212, 21.3. i-ules in equity as to such .securities, 213. security to, upon subject of suit, good, 213. effect of sale to, of subject of suit, 213. where consideration for security to, is money due on account, 211. security to, may be made under pressure, 214. where security to, is oppressive or fraudulent, 21-t. where it is for unascertained costs or advances, 214-. where accounts opened in such cases, 214. effect of Solicitors' Act upon action on such security, 215. securities for future costs, bad, 215. where such security includes existing debt, 215. agreement for payment of future costs out of particular fund, good, 21."). cannot sue on charge for costs pending taxation, 374. lien of, on papers only gives right of retainer, 499. where lien destroyed by payment to new solicitors, 8] 7. does not lose lien by attaching client, 818. paying client's mortgage, how he accounts, 877. JSTABLE-KEEPER, has no lien for keep of horses, 160. STATUTES MERCHANT AND STATUTES STAPLE, the several forms, natures and effects of, 93, n. nature of tenancy by, 718, n. STAYING PROCEEDINGS, under stat. of 7 Geo. 2, c. 20 . . 361. proceedings at law, 361. immediate decree in equity, 362. act applies to actions on covenant, 3G2. amount to be brought in by mortgagee, 363. rules at law where several debts or costs are claimed, 363. where right to redeem is denied, 362, 363, 364. in cases of ejectment, 362, n. claims for costs under, 364. mortgagor must have appeared in ejectment, 364, 36.5. when sufficiently a defendant, 3(')5. judge at chambers may order delivery of deeds, 365. how application made in equity, 365. admis.sion of plaintiff's title must be complete, 365. and submission to demand and relief, 365. all redeeming defendants must api)]y, 366. no order where infant defendant, 366. iif)r under general powers of court, 366. where discovery of subsequent incumbrances required, 366. court has discretion in cases of contempt, 366. act only applies to simple foreclosure suits, 366. not where sale prayed, 367. evidence of dispute as to right to redeem, 367. at law application necessary before mortgagee can sue out execution, 367. but court will enlarge time under order, 367. order not discharged on motion, 368. statute only gave new j urisdiction to courts of law, 368. courts of equity stay proceedings on payment or tender under inherent powers, 368. but not where priorities disputed or order in another suit, 368. court may make decree under inherent powers where it could not under statute, 369. $.e.mhle no order vrithout payment or tender on application of one defendant 369. Ts here proceedings stayed on general convenience or policy, 370. INDEX. 11 S5 STEVVAUD OF MANOK, has notice by admittance of piior mortgagees, COO. STOPPAGE IN TRANSITU, nature of ri;;ht, S24. rescission of contract, 824. stoppage must be adverse to vendee, 82.i. whether stoppage rescinds contract, 825. vendor's right is paramount to lien of middleman, 826. vendor's right to resell after rescission, 826. after stoi)page, s2t>. jurisdiction of courts of law and equity over right of st<ippagc, 826, 827. where light may be enforced by way of marshalling, 827. is the right of vendor or consignor, 828. not of mere surety, 828. where it belongs to public enemy, 828. vendor must be unpaid, 828. where bills are given for price, 829. vendor need not wait result of accounts, 829. seizes at his ovm peril, 829. paid vendor obtaining possession liable in trover, 829. right to stop depends on insolvency of vendee, 829. effect of premature exercise of right, 830. right arises by vendee's neglect to perform conditions of payment, 8,^0. right defeated by absolute assignment for valuable consideration, 830. indorsee takes subject to conditions of bill of lading, 881. where he takes subject to vendor's right, 831. rights of consignee or indorsee under Bills of Lading Amendment Act, 832. claim of assignee docs not prevail against vendor's possession. 833. vendor's right not defeated by attachment pending transit, 833. vendor has no right at law after satisfaction of absolute assignee, 833. vendor's right remains subject to transfer by way of security, 833. right applies to interest in goods to be ascertained, 834. not upon goods appropriated for payment of debt, 834. goods must be in custody of middleman, 834. where delivery to carrier is delivery to purchaser, 835. where vendor reservesj«.'! dhponendi, 836. evidence of vendor's intention not to part with goods, 835, 836. delivery must be into actual or constructive possession of consignee, 806. where delivery is conditional, 837. where goods are not separated or ascertained, 837. delivery may be complete though further transit intended, 837. or where delivery is at middleman's warehouse, 838. and further transit is to be by vendee's agent, 838. where middleman allows goods to remain for vendee's convenience, 839. consignee nuiy anticipate delivery notwithstanding consignor's direction, 839. completion of transit by wrongful delivery, 839. effect of quarantine order, 839, n. constructive delivery by delivery of part, 840. imperfection of deliverv, though from collateral matter, may preserve right, 840. what acts of ownei-ship by consignee arc sufficient, 841. holder of goods cannot prolong transit by wrongful detainer and delivery, 842. vendor may order redelivery to himself, 843. only goods in transitu at stoppage revest in vendor, 843. mav be effected by notice to holder or his principal, 843. nia'v be effected by agent of consignor, 843. how far agent or indorsee may sue under Bills of Lading Amendment Act, 844. when stoppage by agent must be effected, 844. ratification of agent's authority, 844. liability of holder of goods for improper delivery to consignee, 814. consignor need not prove title to holder, 844. effect of holder's refusal to deliver, 845. 1186 INDEX, STOPPAGE IN TRA'SSITV-continned. holder who has admitted title of claimant cannot aften\'ai-ds dispute it, 845. ehxim after sale of goods by crown will bind proceeds, 845. whetlicr insolvency of vendee entitles vendor to refuse to send goods on tran- sit, 845, 84G. STOP ORDER. See CHARrxixG Order. must be obtained upon fund in Chancery affected by charging order, 102, 690. effect of, and when granted, 103, 104. how obtained, 104. notice of, should be given, GOO. applies only to jiarticular charge, 690. where account carried over, effect of stop order by later mortgagee, 690. where several obtained on same day, priority of notice prevails, 691. SUBSISTENCE, of seamen, lien for, 699. SURETY. See Liability ; Receiver. entitled to discovery of principal's securities, 348. right of, to benefit of securities over-ridden by right to consolidate securi- ties, 686. unless surety has special contract for priority, 686. his right to mars^hal, 763. right to benefit of securities overrides surety's right to marshal, 763. his right to the benefit of creditor's securities, 807. creditor bound to hold them for his benefit, 807. right extends to all equities of creditor, 808. right of, to securities under Mercantile Law Amendment Act, 809, statute applies to co-debtor, 809. released by creditor's neglect to preserve security, 810. but creditor may assign security or debt, 810. and assignee takes subject to surety's right, 810. right of set-off in bankruptcy, 811. discharge of one co-surety is release at law of all, 811. also equitable satisfaction, 811. mere surety cannot stop in transitu, 828. effect of purchase of incumbrance by, 871. form of decree in favour of, 982. SURRENDER. See Conditioxal Surrender. of security, stamps on, 1120. TACIvING. See Priority, Equitable. nature and effect of, 649. depends upon dominion over prior legal interest, 650. prevented by out.-tanding estate, 650. time at which it may be obtained, 650. pai-tial legal interest sufficient, 651. how far legal estate, in part of security, protects, 651. actual possession of legal estate not necessary, 651. what acts are equivalent to possession, 652, 653. where satisfied security will protect, 653. in case of crown debt, fi5.S, n. no advantage where obtained by ill-practice or with fraudulent design, 654. but mortgagee, without notice of fraud, may have priority, 654. legal estate without notice protects, though assignor has notice, 654. and legal estate with notice protects, if assignor has not notice, 655. in case of trust, 655, 656. debt must have been contracted on credit of estate or specific securities taken afterwards, 656. consequences of rule, 656. effect of possession of judgment, 657 — 659. effect of statute 1 & 2 Vict. c. 110, in this respect, 659. INDEX. lis: TAClWisG— continued. lender on securities for contract of sale cannot protect advance by legal estate, OCO. person tacking must hold securities in same right, 6G0. consequences of rule, (>(!0. when person tackiujx must have no notice of mesne incumhrancc, 661. application of rule, 6t)l. where mort<.'ajiee has fortriven part of debt, and then lent further sum, 662. right of tirst mortgagee with security for further advances, when second lends with notice of it, 002. prior mortgagee cannot tack debt taken in pendente lite, 663. ■ pvis/it iiicumltranccr may, when taken before decree, 663. restriction depends upon rule as to notice, 603. principles upon which rule is founded, 063, 004. debts which are lien on estates may be tacked against mortgagor, his sureties and others claiming under him, 664. right to tack further advance against surety, 664. right to tack judgment debts, 605, 600. against whom debts, which are not a lien on the estate, may be tacked, 666, 667. how far tacking allowed to avoid circuity, 607. when arrears of interest may be tacked, OCS. how far simple contract debts may be tacked, 668. general result of rules as to legal tacking, 608, 669. TAILOR, has specific lien, 181. TENANT. See Mortgagee ; Mortgagor. of mortgagor, where he may pay rents to mortgagor, 462. of mortgagor, not giving notice of ejectment by mortgagee, not liable penalties, 462, n. TENANT FOR LIFE, right of, to redeem, 305. presumption as to merger on discharge of debt by, 789—791. effect of purchase of incumbrance by, 871. how accounts taken against, 878. of mortgaged land, how allowed for improvements, 889. must keep down interest, 906 — 909. TENANT IN TAIL, mortgage of. is good against volunteers, 203. provision of Fines and Recoveries Act as to mortgages by, 294. right of, to redeem, 305. effect of imperfect assurance by, 043 — 646. judgment debtor, where ordered to disentail, 646. presumption as to merger on discharge of debt by, 789—792. adult not liable to keep down interest, 905. infant is bound, 905. TENANTS IN COMMON, their right to redeem, 304. cannot have partition in redemption or foreclosiu-c suit, 004. TENDER. See Payment. mortgagee bound to accept unconditional tender of all that is due, 769. but not tender, coupled with demand for immediate execution of assignment, 700. of debt secured by demise to be void on payment, discharges land, 770. discharges lien, 770. creditor's conduct may amount to dispensation with, 770. tender to save condition at law, 770. what attendance necessary where certain hour fixed for payment, 770. place at which tender should bo made, 771. money in which tender should be made, 772. 1188 INDEX. TEy^DER — confinved. where law prevents production in specie, 773. when actual production of money is necessary or otherwise, 773, 771. must not be clogged with condition, 775. hy and for whom tender may be made, 775. to whom tender must be made to perform condition at law, 775. persons entitled in equity, 775. executors of mortgagee, 776. where to agent of mortgagee, 77(5. TIMBER, mortgagee's right to preservation of, 334. TIME, enlargement of. See Payment. TITHES, merger of, 800. TITLE DEEDS. See Deeds. TOLLS, mortgage of, with " underta!. r :" effect of, 232. mortgage of, gives no right to lam^ 233. power to mortgage does not include toll-houses, 23.1. mortgage of toll-houses passes interest in land, 233. remedy of mortgagee of, where no covenant to pay, 39<i. TOWAGE, when payments for allowed to maritime creditor, 884, n. TRAXSFEES OF SECURITIES. See Accounts. stamps on, 1113, 1117, 1118. TRANSMUTATION, of form of property, does not destroy security, 858. TRUSTEES, statutory securities by, 243, 244. securities by, under im]jlied power, 244. where mortgagee must inquire as to object of, 245, 2-1 G. where charge upon rents and profits may be raised out of corpu.i, 24f). where fines are to be raised, 246. statutory power to rai.se mouey for equality of exchange or renewal of leases, 247. where power to mortgage is implied in power to sell, 247. may be raised without decree under power to raise for debts and legacies, 248. other ca.ses where mortgage may be made, 248. extent of their right to invest tru.st money on mortgage, 250, n. where mortgagee of trust estate has the ordinary mortgagee's rights, 304. for creditors of mortgagor, where entitled to redeem, 3] 7. where solicitor need not disclose name of cestui s que trust, whose money was lent in his name, 579. may give good discharge for mortgage debt, 778. effect of purchase of incumbrance by, 871. vesting orders of estates of, 1024. TRUST FOR SALE, stamps on security by way of, 1 11.5. TURNPIKE ACTS, securities under, 1099. UNDERTAKING, public, effect of mortgage of, 231, 232. INDEX. llSy UNDERWOOD, mortgagee's right to prevent cutting of, 33.J. UNDUE IXELUENCE, securities obtained by, may be set aside, 210—215. cases in which it arises, 211. securities for exercise of, in disposal of property, 'jl?. UNFINISHED HOUSES, how mortgagee in possession must deal with, 88.">. USURY LAWS, effect of repeal of, as to extortionate securities, 208. 209, 212. as to conversion of interest into principal, 918 — 920. summary and effect of statutes relating to, 935 — 9-11, n. VADIUM, MORTUUM K^D VIVUM, effect of, 9, 10, n. VENDOR. See LiEX. lien of, upon land for purchase-money, 122. distinguished from lien on chattels, 122. principle of, 122. when and against whom it exists, 122, 12.3. may be supported by parol evidence, 123. for price of and compensation for land taken under Lands Clauses Act, 123. where purchase-money left in hands of one of several ti-ustees, 123. And see Discharge of Security; Waiver. of goods, lien of, 191. arises out of original ownership, 191. extends to factors, 191. gives right to stop in transitu. See Stoppage ix Transitu, 191. overrides lien against purchaser or subpurchaser, 191. no lien against purchaser in respect of charges jiayable at future time, 192. purchaser who pays may recover from veiulur, 192. VENDORS, unpaid, priority between and claimant under purchaser, 678. VESTING ORDER. See Lunatic ; ^Mortgagee ; Trustee. WADSET, stamps on, IIU, 1120. WAGERES'G, securities on contracts of, 217. WAGES, of seamen, form lien on ship, 698, 699. when payments for allowed to creditor, SS4, u. wai\t:r, (If security. See Stoppage IN Transitu ; Surety. may be express or implied, 803. where not implied, 803. by carrying on inconsistent proceedings, 801. w'hat proceedings held to be waiver of right of mortgagee, 804 — 80G. where proceedings are for safety of estate, 805, n. rights not altered by mere decree for sale, 805. general rules, 806. where personal decree against executor consistent with liability of estate, 806. waiver of lien by trustee, 807. 1 1 90 INDEXr W A I VEH—conti n ued. waiver of right against surety, 807 — 811. onus of showing waiver by taking new security is upon owner of estate, 81 1. what is evidence of waiver, 812. of lien of vendor of land when destroyed or otherwise by taking security, 813, 8U. general effect of authorities, 815. effect of receipt in deed, 815. waiver of lien of vendor of goods, 816. waiver of other liens by taking security, 81G. right of mortgagee not" waived by execution against debtor, 817. nor of holder of lien by attachment, 818. otherwise in case of judgment debt, 818. possessory lien waived by loss of possession, 819. so of pledge, 819. effect of redelivery to debtor as creditor's agent, 819. where creditor cannot restore it, 819. waiver by claim for third person's debt or by different title, 820. by constructive loss of possession, 821. involuntary loss of possession no waiver, 821 . nor giving it up under fraudulent inducement, 822. delivery destroys lien of vendor oi goods, 822. effect of part delivery and of delivery order, 822. where vendee pays warehouse rent, 822. vendor's land may be vendee's warehouse, 82.3. where vendor's claim is only personal, 824. WAREHOUSE RENT, where payment of shows possession, 841. WARRANT OF ATTORNEY. See Ecclesiastical Benefice. to confess judgment where it does not create forfeiture under restriction against alienation, 94. provisions as to, under 1 & 2 Vict. c. 110.. 95— 98. must be filed, 95. effect of bankruptcy upon, 95. defeasance of, how to be ^\Titten, 95. particulars of to be entered in Court of Queen's Bench, 95. entr}' of satisfaction upon, 96. must be made in presence of attorney, 96. and indexed, 96. act applies to warrants made abroad, 96. where attorney not necessary, 97. qualifications of attorney, 97. his duties, 98. attestation of, how made, 98. where maker of, may contest it, 99. requisites of, under Bankrupt Act, 1849.. 99. stamps on, 1122. • WASTE, lien for, against profits received in time of person committing, 139. WEAK INTELLECT, securities by persons of, may be set aside, 211. WEIGHING AND SAMPLING, when they amount to taking possession, 841. WELSH MORTGAGE. See Mortgage, Welsh. WEST INDIA ESTATES. And see Liens. lien of manager and consignee for expenditure on, 131—134. commission to consignees of, 892, 893. Incumbered Estates Acts, HOC. INDEX. 1191 WHARF OK WAREHOUSE OWNER, lien of, for rent ami expenses under Merchant Shipping Act, 18C2. .191. WHARFAGE, when ship-owner has no lien for, 188. WHARFINGER, entitled to general lion, 163. nature and extent of his lien, 164. how far dependant on usage or agreement, 164, 1C5. indorsed receipts of, will not pass property, 833. WIFE. See Married Woman. WILFUL DEFAULT, when account taken against mortgagee with, 881. form of decree for, 1044. WILL, where notice of, is notice of contents to purchaser from heir-at-law, 612. purchaser under, where in foreign tongue, not affected by notice of ditFicult equity, 615. solicitor has no lien on original, 179. WITNESS, to deed not affected by notice of its contents, 616. FINIS. LONDON : PRINTED BY C. ROWORTH AND SONS, NEWTON STREET, W.C. — a (Catalogue OF LAW WORKS I'UULISHKD BY MESSRS. B U T T E R W R T 11 ?iaUJ UoofesclliTS antJ ^Jui)liBi)fV's HfTi fi>' s '^r '1,..^^ u-* TO THK UIKKN'S MOST EXCELLENT MAJESTY AND Tti H.R.H. THE PRINCE OF WALES. " Now for the Laws oj England (if I shall speak my opinion of them " without partiality cither to my profession or country), for the matter and " nature of them, I hold them wise, just and moderate laws: they give to God, " they give to Ceesar, they give to the subject what appertaineth. It is true " tltey are as mixt as our language, compounded of British, Saxon, Danish, *' Norman customs. And surely as our language is thereby so much the richer. " so our laws are lihrwise by that mixture the more complete." — LoRV Bacon. 18t)8. 7, FLEET STREET. LONDON, E.C. o- o t^nljfi to Catalogue, o- Abridgment. I'etersdorff 23 Accounts, Law of. Pulling' ... 30 Actions at Law. Kerr 12 Lush 8 AVilliams 27 Admiralty, Practice. Coote ... 10 VrizeLaw. I,ushingloii IG Reports. Robinson 34 Swabey 34 Lushingtou .. 34 Browning S; Lusli- ington 34 Arbitrations (Masters and Workmen). Lovesy 21 Articled Clerlv. Hallilay's Reporter ... 5 Mosely 14 Attachment, Foreign. Brandon .. 18 Australia. Torrens ... ... 20 Banking. Grant ]y Keyser 31 Bankruptcy. Davis 7 Bar. Law Students' Guide 32 Pearce 29 Smith 23 Barbados, Law of 29 Belligerents. Hamel 29 Phi:limore 31 Bills of Exchange. Grant 19 Blackstonc. Steplien's 8 Blockade. Deane 31 Boundaries, Hunt 4 Brokers. Keyser 31 Carriers, Inland. Powell ... 28 Railway. SlieJford ... 28 Catalogue, General 29 Chamber Practice, Common Law. Parkinson . ... 19 Chancery Practice. Goldsmith 23 Hunter 8 Drafting. Lewis ... 11 Channel Islands. Bowtlitth 30 Charitable Tnists. Pye 32 Tudor 13 PAGE Church Building. Trower 22 Civil Service Exam. Cutler 28, 29 Circumstantial Evidence. Wills 16 Code, English Law. Blaxland 32 Collieries. Bainliridge 27 Colonial Law. Barbados 29 Torrens 29 Commentaries. Stephen's Blaokstone's 8 Commercial, Law. Chitty 32 Treaties. Hertslet ... 31 Forms. Crabb ... 15 Common Form Practice. Coote 4 Common Law, Abridgment. Petersdorff 23 At Chambers. Parkinson 19 Costs. Gray 29 Plendi7}g. Chitty, jun 17 Greening 30 Williams 27 Practice. Dixon 8 Kerr ... .. 12 Luih 8 Compensation, Law of. Ingram 14 Shelfiird 28 Consolidation Acts. Sheiford 28 Constitution. May 12 Stejjhen 8 Contraband of War. Deane 31 Moseley 18 Contracts, Specific Performance. Pry 24 Conveyancing, Inlroductio7i to. Lewis 11 Practice. Barry 10 Rouse 9 Sheppard's Touch- stone 32 Smith 25 Tudor 12 For/ns. Christie 15 Crabb 15 House 9 Shellord 15 Convictions (Summary), St/nopsis of. Oke ... 20 Forms. Oke 21 Copyholds, Enfranchisement. Rou.se 16 Law of. Scriven 18 FACE Coroner. Baker 30 Corjjorations, In General. Grant... 17 Mujiicipal. Sewell... 31 Costs, Law of. Gray ... 29 County Com'ts. Davis ... 6 Equity Practice. Davis 7 Crimes. Davis 35 Cruninal Law. Davis 28 Oke 20 Customs. Hamel 31 Deeds. Tudor 12 Descents. Fearne 31 Divorce. Brandt 30 Browning 18 Swabey & Tristram ... 34 Drainage. Wilson 31 Woolrych 17 Easements. Washburn 30 Ecclesiastical, Practice. Coote 29 Judgments. Burder v. Heath ... 33 Long V. Cape Town 33 WestertontJ.Liddell 32 Election, Law. Lewis 30 Warren 30 Committee!. Sharkey 29 Warren 30 England, Laws of. Blackstone 11 Francillon 29 Stephen 11 English Bar. Law Students' Guide 32 Pearce 29 Smith 23 Equity, Draftsman. Lewis ... 11 Pleader. Drewry ... 22 Practice. Goldsmith 23 Suit in. Hunter ... 8 See Chancery. Evidence, Circumstantial. Wills 16 County Court. Davis 7 Law of. Powell ... 26 Wills. Wigram ... 27 Examinatiniis. Preliminary . Benliam 14 Reporter. Hallilay ... 5 Intermediate and Final. Mostly 14 Fences. Hunt ... 4 » Cf INDEX TO CATALOGUE. Fisheries. vaoe Oke 2.") Fonns, Conveyancing. Crabb 15 Rouse 9 Muyislfrial. Oke ... 21 Pleading. Greening 30 Probate. Chadwitk It) Game Laws. Oke 25 Gaming. Edwards 32 Gavelkind. Robinson 31 Gncrn.sey (Law of). Howdilch 30 Highways. Glen 24 Hindu Law. Cutler 29 House of Ivords, Practice. May ... 12 Reports. Clark ... 34 Idiots. I'hillips 28 Indian Succession Act. Hyde 31 Inteniational Law. Deane 31 Haniel 20 Philliniore 31 Jamaica Riot. Williams 33 Jersey (Law of). Bowditch 30 Joint Stock. Banks. Grant ... 19 Companies. Shelford 35 Jurisprudence. Law Magazine ... 36 Justice of Peace. Oke ... 20 Law Magazine 36 Law Studies. Cutler's Lecture ... 29 • Francillon 29 Smith 26 Leading Cases, Jieal Properly. Tudor 12 Leases. Crabb 15 Rouse 9 Legacy Duties. Shelford 16 Legitimacy. Gardner Peerage ... 29 Life Assurance. Blayney 32 Local Government. Bristowe 29 Glen 24 Lords Chancellors, &c.. Catalogue of. Hardy 32 Smyth 32 "^Lord Mayor's Court. Brandon 25 Lunacy. Phillips 28 PAGE ... 28 ... 20 ... 21 Magisterial Law, Davis Practice. Oke Furmt. Oke Maritime Warfare. Ileane Haniel Marriage Acts. Burn Master and Servant. Davis Master and Workmen. Lovesy Mayor's Court. Brandon Memoir, Lord Lyndhurst Mr.JusticeTalfourd... Mercantile Accounts. Pulling Merchant Shipping. O'Dowd ^lilitia Laws. Dwyer Mines and Minerals. Bainbridge Mortgages. Fisher Rouse Municipal Elections. Haly Sewell Neutrals. Philliniore Nisi Prius. Leigh Nuisances. Glen Pamphlets Parliamentary. May Warren Partnership. Di.xon Pothier Patents. Curtis Norman Peerage Claim. Lemarchant's Gardner Petty Sessions. Oke Pleading, Common Law. Chitiy, Jun. Greening Williams Equity. Drewry Lewis Guide. Anstey Precedents, Conveyancing. Crabb Rouse Priority. Fisher Private Bills. May Prize Law. Lushington 16 21 35 30 30 30 30 31 27 10 9 30 31 31 30 24 33 12 30 5 32 30 29 29 20 17 30 27 22 II 32 15 y 10 12 Prolmte, page Practice. Coote ... 4 Forms. (Miadwick ... 19 Duties. Shelford ... 16 Reports. Swabey 4: Tristram 34 Public Health. Glen ?.i Railways. Redrield 30 Compensation. Ingrain 14 Carriers. Powell ... 2H Real Property. Tudor 12 Chart. Fearne ... 31 Registration. Warren 30 Reports. {Laic) 34 Religicm. Supremacy of Crown . 33 Religious Confession. Badeley 33 Ritual. Bay ford 33 Haniel 33 Piiilliinore 33 Roman Law. Cutler 29 Tomkins 15 Savings Banks. Grant 19 Sea Shore. Hunt 4 Sewers. Woolrych 17 Sheriff. Sewell 31 Sheriff's Court. Davis 6 Specific Performance. Fry 26 Stock Exchange. Keyser 31 Succession Duty. Shelford 16 Suit in Eipiity. Hunter 7 Sununary Convictions. Oke 20 Touchstone. Sheppard 32 Treaties. Hertslet 31 Trusts, Charitalde. Tudor 13 Turnpike Laws. Oke 20 Wills. Crabb 15 Redheld 30 Rouse 9 Tudor 12 Wigram ... .27 Winding-up. Grant 19 Shelford . •• 35 Window Lights. Latham ; 13 o- »- LAW WORKS PUBLISHED BY © Coote's & Tristram's Probate Practice.— 5tli Edition. 8vo., 245. cloth. THE PRACTICE of the COURT of PROBATE, in Common Form Business. By Henry Charles Coote, F.S.A., Proctor in Doctors' Commons, &c., &c. Also a Treatise on the Practice of the Court in Con- tentious Business, by Thomas H. Tristram, D.C.L., Advocate in Doctors' Commons, and of the Inner Temple. Fifth Edition, with great Additions, and including all the Statutes, Rules, Orders, &c., to the present time ; toge- ther with a Collection of Original Forms and Bills of Costs. "The profession will be glad to welcome the publication of this most valuable work. When the monopoly which the proctors and advocates enjoyed in Doctors' Commons was abolished, and the practice in probates and letters of administration was thrown open to the general profession, the uninitiated derived greater benefit and instruction from this book than from any other which was published for their guidance. It has become an acknov/- ledged nece^sity in the library of every prac- titioner. Since the publication of the last edi- tion, new rules have been promulgated for the Court of Probate, other regulations have been made by acts of parliament and an order in council, and the practice of the Court has in some respects been altered and settled. Tliese changes have been attended to. A more "useful book than this we do not know, and we need not say more than that in this edition the authors have done all in their power to increase its utility and secure its completeness." — Law Magazine and Review. " A tifth edition in so short a time is a suc- cess that few Jaw books can boas-t, and it is ■well deserved. Mr. Coote as a proctor pos- sesses that intimate acquaintance with the ininutife of practice which experience only can supply : and Dr. Tristram's education as an advocate enables him to treat of the juris- diction of the I*robate Court, the law which it administers, and the principles established for the administration of that law, with a mastery of his subject that has made this production of the united labours of two such competent men the accepted text book of the Probate Court. Having noticed its successive editions as they appeared, it remains only to say that it brings down the statutes and cases to the present time." — Law Times. " We must not omit to praise the complete character of the Appendix, which, occupying more than half the whole work, presents us with the statutes, the orders in council, rules and fees, tables of costs and forms, and leaves nothing to be desired by the proctor or solicitor either in the routine of common form or in the stages of suits." — Law JoumaS. Hunt on Boundaries and Fences. Post 8vo., 9s. cloth. THE LAW RELATING to BOUNDARIES and FENCES. By Arthur Joseph Hunt, of the Inner Temple, Esq., Barrister at Law. " Among other matters discussed are the rights of property on the sea shore ; navigable and private rivers ; the duties of mine owners with regard to boundaries ; the rights and lia- bilities of landlords and tenants as to fences, hedges and ditches, and the liability to make and repair the same; the duty to fence land adjoining roads ; the law relating to trees and hedges on the boundaries of property, &c. The second chapter of Mr. Hunt's work, which re- lates to fences generally, is especially worthy of perusal, as cases are repeatedly arising be- tween adjoining proprietors. Too much praise cannot be given to the modesty of an author, who, following the example of early text writers, constructs his work on the so-called utterances of the judges, and does not, like some writers, place too much reliance upon his own ipse dixit. With these remarks we take leave of Mr. Hunt's book, recommending it as a work containing a great deal of information in a small compass, and cue on which no small amount of time, labour and research must ne- cessarily have been bestowed." — Law Times. " Mr. Hunt has done good service by collect- ing and arranging, in a clear and convenient manner, a large amount of information which lies scattered through the old text books, the reports and the statutes, and to which there has hitherto been no clue. Mr. Hunt appears to have ransacked the American as well as the English treatises and reports : but his work is not a mere compilation : he has investigated for himself and stated the results concisely and clearly." — Jurist. " The law of boundaries and fences, is, in the work before us, treated with great ability, and as the language is clear, and, as far as may be, free from technicalities, it will be found useful beyond the limits of the legal profession." — AlhencBum. " This is a very useful work as a common place book on the subject of which it treats." — Law Magazine. " This is a concise and well-written book on a small but not unimportant subject, and dis- plays considerable care both in arrangement and detail. It will be seen that the author very carefully and completely dissects his subject, and then very succinctly treats of the parts." — Sulicilors' Journal. Sf -» o MESSRS. nUTTRRWORTri, 7, FLEET STREET, E.C Dixon's Law of Partnership. 1 vol. 8vo., 2'2.v. clotli. A TREATISE on the LAW of PARTNERSHIP. By Jo.sKiMi Dixon, of Lincoln's Inn, Esq., Barrister at Law. Editor of " Lush's Common Law Practice." "It is with considerable gratilicatioii that and students Mr. Dixon's treatise as tlie best we find tlie subject treated by a writer of Mr. exposition of the law we have read, for the Dixon's reputation for learninj,', accuracy and arrangement is not only arti^itic, but conri«,e- paiiKstakiiig. Mr. Lindley's view of the sub- ncss has been studied without sacrifice of clear- ject is that of a philosophical lawyer, Mr. ness. He sets forth the principles upon which Dixon's is purely am! exclusively practical the law is based as well as the ca.tes by which from beginninj,' to end. We imagine that very its application is shown. Hence it is something few questions are likely to come before the more than a digest, which too many law books practitioner which Mr. Dixon's book will not are not: it Is re.illyan essay."— Anw Times. be found to solve. Having already passed our " Mr. Dixon's manual on the law of partner- opinion on the way in which the work is car- ship will be an acceptab'e addition to the ried out, we have only to add that the value of shelves of our law libraries, whilst from its the hook is very materially increased by an portable size it will bs equally useful as a excellent marginal summary, and a very co- companion in court. He has evidently be- pious index."— //««> Mayiizinc and Review. stowed upon this book the same conscientious "Mr. Dixon has done his work well. The labour and painstaking industry for which we book is carefully and usefully prepared."— had to compliment him some months since Solicitors' Journal. when reviewing his edition of Lush's ' Practice " Mr. Dixon enters into all the conditions of of the Superior Courts of Law,' and, as a re- partnerships at common law, and delines the suit, he has produced a clearly written and well rights of partners among themselves; the arranged manual upon one of the most impor- rights of the partnership against third per- tant branches of our mercantile law."— iam sons; the rights of third persons against the Journal. partnership; and the rights and liabilities of " The law of partnerships at common law, individuals, not actually partners, but liable as it is established by the latest decisions, to be treated by third persons as partners." — will be found concisely stated in these pages. The Times. The matter is well arranged and the work is " We heartily recommend to practitioners carefully executed."— Athenaum. Hallilay's Law Examination Reporter. THE LAW EXAMINATION REPORTER. Edited by RiCHAHD IIallilay, Esij., containing all tlie tiiiestions and Answers at the Examinations of Law Students at the Incorporated Law Society. *^* Published in Numbers at 6d., by Post 7d., every Term on the Morning of the Second Day after the Examination. Contents of No. I.— Hii.. Term, 1S6C.— Notice to Readers— How to Study— The Examiners- Examination Questions and Answers. Contents of No. H.- East. Term, ISCO.— Notice to Readers— What to Study for Pass or Honors— The Examiners— Examination Questions and Answers. Contents of No. HI.— Trin. Term, ISOC— My lirst Criminal Client— Important Bills in Par- liament — The Examiners — Exatninalion Questions and Answers. Contents of No. IV.— Mich. Term, ISGO.— On Memory, its Abuse and its Aids— Result of the past, intermediate and final Examinations — The Examiners — Examination Questions and Answers. Contents of No. V.— Hit,. Term, 18()7.— Sketches at a Police Court-Reviews of New Books- Observations on the Michaelmas Term's Questions— The Examiners— All the Hilary Tenn's Questions and Answers. Contents of No. VI.— East. Term, ISti?.— The Preliminary Examinations and the Judges Dis- pensations—Observations on the Hilary Term's Equity Questions — The Examiners— All the Easter Term's Questions and Answers. Contents of VII.— Trin. Term, 1867.— Notice to Readers — The Rejected and the Reason- Examination and Leg.-il News— The Examiners— Intermediate Examination Questions- Final Examination (Questions and Answers. Contents of No. VIII.— Mich. Term, 1867.— New Statutes— Result of Past Examinations- New Prizes— Law Societies— Reviews of Books— The Examiners— The Intermediate Ques- ^, tions— All the Michaelmas Term's Examination Que.'.tions and Answers. Contents of No. IX. — HiL. Term, 18GS.— Notice to Readers— Proposed Amalgamation of the Bar and the Attornies— New Statutes and Rules— Correspondence— Moot Points— Reviews of New Books— Intennedinte Examination Questions- The Examiners— Final Examination Questions and Answers for Hilary. Contents of No. X.— East. Term, 18G8.— Hints to Young Attorneys— Reviews of Books— Inter- mediate Questions and Answers— All the Easter Term's Final Questions and Answers. Contents of No. XI.— Trin. Term, ISGS.— What to do after Passing— Answers to Mont Points — Reviews— Intermediate Questions and Answers— Trinity Terms Final Questions and Answers. to- © © LAW WORKS PUBLISHED BY Davis's Law of Master and Servant. 12mo. 6.V. clotli. THE MASTER AND SERVANT ACT, 1867 (30 & 31 Vict. e. 141), witli an Introduction, copious Notes, Tables of Offences, and Forms of Proceedings, prepared expressly for tliis Work. By James E. Davis, Esq., Banister at Law, Stipendiary Magistrate, Stoke-upon-Trent. »»* Besides the Act and copious Notes, Jntrodiiction, and a variety of Forms of Summons, Orders, Convictions, Recognizances, itc, specially prepared for this icori; Tabhi have heen framed ctassifyiiKj all the offences irillnii the jurisdiction, of Justices. It is hoped that this will be found useful, not onli/ to Magistrates and their Clerts, but to the Legal Frofessimi generally, for in consequence of tlte new Act not describimj the offences, but merely referring to a schedule of seventeen former Acts, it is very difpcitll to say what cases are or are not within the purview of the new Act. The decisions of the ^uperiw Courts, so far as they are applicable to the present laic, are also given. " We are clad to see that the qtiestion has been treatnl so ablv and carelully as it isiu thepreseut volume. .Mr. Davis was one ol tie commissioners whose recomniendatioDS led to the passing of ihe act of last session, so tliat he is well fitted to point cm the scope and general intentions of the sta- tute, while his experience as stipendiarv magis- trate of Sitoke-upon- 1 rent render his suggestions as to the practice and i)rocedure to be employed in working out its provisions peculiarly valuable." — ■'ioliciloTs' Journal. " ihe task that Mr. Davis undertook in editing this new Master ami "-ervant Act has been well performed, and indeed in a manner that i)rohably no one who did not enjoy the exceptional advan- ta'^es for the purpose that Mr. Davis does could have executed so satislactorily." — Jiiih Law Times, '• With such a manual before them as that of I\Ir. Davis, magistrates and practitioners will have little difficulty in fully comprehending the law and knowi'g how to api)ly it. We therefore recommend this edition to them."— Oloucetter Jouruitt. " Ihe editioDof the act which Mr.T'avis, the sti- pen :iarv magistrate at .Stoke upon- Trent, has just published, will prove of great use as a clue to this legislatii e Irtbvriuth. In thisliitle work so much of the statutes refem-d to as is required to make the new law intelligible is quoted at full length, and Mr. Davis has also added sundry tables of matters and things within the junsdiclioii ot jus- tices under the Master and Servant Act, which remedy as far as possible the omissions of the measure itself."— .i'a/u/rfa^ l^eview. " This will be found a useful little work for all who have occasion to inquiie into master aud servant laws as afiected by the statute of la.t session. This book is calculated to be especially serviceable to magistrates and justices of the peace, and they undoubtedly will find it very useful. It is written by one of themselves, ana is therefore likely to be particularly adapted to their wants." — Law Jourtial. " He has been enabled to present in this volume a lucid interiJretation of the recent act, an inter- pretation the necessity for which will be appre- dated from the fact that t'.e act of 1867 has been based on a number of statutes to which it refers merely in a schedule. This book summarizes the state of the law before the passing of the act. and points out the chan^'es which have been effected thereby. It also contains copious notes and forms, witli tables of offences, by means of which and the comments of the writer the existing state of the law and the necessiiy for farther amendments will be clearly understood." — Observer. " Mr. Davis has performed a good service by publishing that act with an introduction and noies for the guidance of magistrates, lawyers atid others. His exposition of the act is clear and full, making everything as to its application plain enough for ihe guidance even of those who are not of the legal profession."— IJ/iwAHr^A Courant. " Any unhappj; man who may wish to make use of the statute of 1867 might therefore have to undertake a mostlalwrious hunt through the sta- tutes at large, if he were not saved from that dire necessity by a compilation such as that which is now before us. Mr Davis has in this little vo- lume collected a large amount of practical infor- mation." — Athenaum. Davis's County Courts Act, 1867. Now ready, royal 12ino., \'ls. cloth. THE COUNTY COURTS ACT, 1867, and the provisions of tlie Common Law Procedure Act, 18-54, relating to Discovery, Attachment of Debts, and Eijuituble Defences (applied by Orders in Council to the County Courts). Edited, with Notes and Introduction and a Chapter on Costs, together with all the New County Court Rules, Orders and Forms, by J. E. Davis, Esq., Barrister at Law. *»* This edition may he used either as an Appendix to the third edition of " Davis's Practice and Eiidenee in the County Courts," or as an independent work. " Mr. Davis has good title to come before th ; public with a book on the New County (^ourt Act, inasmuch as he has already occupied the ground by his Manual on the Practice and i,i idence and other Proceedings in the County Courts, and might feel himself called upon to complete his former treatise by adding what was rendered ne- cessary by the (hanges of the law, as he justly says the best way to acquire a thorough know- ledge and comprehension of the jurisdiction and nraciice of ".he Coun y I ourts is to treat the new law assuppleniental to the formerlaw. Wemay add that this treaii:-e is arranv,'<d very clearly, and the prattitioner can in a moment find the in- fornstiou which he mav require. Ihe book is admirably printed, and there is a go'id index to the whole volume." — Law Journal. " This volume contains a preface, an introduc- tory chapter, the act itself, annotated, a chapter on costs, the order in council, all the new rules, forms and orders, &c., and a full index. 1 he principal feature which attracted our attention is the ch^ipter on costs, no other treatise on the act which has vet appeared having dealt with this im- portant subject specifically. It would be unfair to extract, even in an abridged form, this valu- able addition to the law literature of the C^ounty Courts, and we would recommend our readers to obtain Mr. Davis's volume, even though they al- ready possess any of the treatises puDlished on the new act. ihe whole work is done in Mr. Davis's usually thorough and efficient manner, and the book is got u]i in Messrs. Butterworths' best style." — La-w Times. ® » Davis's County Courts Equitable Jurisdiction. Royal 12ino., 5s. doth. THE ACT to confer on the COUNTY COURTS a LIMITED JURISDICTION ill EQUITY, 2h & -JS) Vict. cap. U!>, with tlio New Uulcs and Forms, including those of -JHtli May, IHOCJ; iilso Introductory Chapters, Copious Notes and a Full Index. I3y Jamk.s Edv'aiu* Davi.s, Estj., of the Middle Tciuple, Barrister at Law. Davis's County Courts Practice and Evidence.- Third Edit. One tliifk volmiu', Uoviil 12i!io. 2Si. cloth. A MANUAL of the PRACTICE and EVIDENCE in ACTIONS and other PROCEEDINGS in the COUNTY COURTS, including the PRACTICE in BANKRUPTCY, with an App.ndi.x of Statutes and Rules. By Ja.mes Edwauu Davi.s, of the Middle Tciujde, Esq., Barrister at Law. Third Edition, considerably enlarged. •»* T/iis U the oiili/ iroik on Hie Coiintii Courts irhicit i/ires Forms i/ I'laiiils ami treat* fully 0/ lite Lt(w and ErUknct: in Actions and other I'roceeilinijs in these Courts. "It is undoubtedly the best book on the Practice of the County Courts, and tlie appear- ance of a tliird editioti proves that such i-> the opinion of the Profession." — Law 2'ivie.i. "This is the third edition of a text-book which is well known in both branches ol the Legal Hrofessiou. From a small be{,'inning it has gradually grown into a bulky volume of 8.9 pages, and now contains an inexhaustive exposition of the Law and Practice relating to the County Courts. The second part of this manual contains a valuable digest of the Law of Evidence, as applicable to tlie Procedure of the County Courts. In this particular, it cer- tainly e.xcels all the other text-books on the subject. The importance of this part of the work cannot be t^o highly estimated. The chapters on the County Practice in Bankruptcy d splay the usual care and ability of the author, and give a completeness to a work which lias hitherto been deservedly popular in the Pro- fession." — Law Magazine. " This is a greatly enlarged edition of Davis's County Courts Practice, a w. rk well enough known as to need no inlrodurtion to the legal public, or at any rate to that purlion of it con- cerned with pioceedings in the County Courts. The edition before us follows in its main features the second edition of the book, but it is to that second edition as the full-blown rese to the bud, not merely in quantit) but in quality of matter. We can heartily and salely reconmiend the book for the i)erusal of all in- tending practitioners in any County Court." — Solicilurs' Journal. Hunter's Suit in Equity. —Fourth Edition. Post Svo. 104-. cloth. AN ELEMENTARY VIEW of the PROCEEDINGS IN A SUIT IN EQUITY. With an Appendix of Forms. By Sylvf.stkr J. Hunter, B.A., of Lincoln's Inn, Barrister at Law. Fourth Edition, G. W. Lawuance, M.A,, of Lincoln's Inn, Barrister at Law. and that it has been found to pirfurni its iiro- viiu-e IS proved by Its arrival at a fourth ediiiuii. Mr. I.awraiiee has added a chapter on thetiimt- al>le jurisdiction of llie county courU>. — i-a» Times ■ , e 1 •■ This book bus now niaiiiiamed lor so long a time the position of a stnod-irJ muuiul tor the use of law students, th.ii there is little for us to sav re>urctiuK its general scope. I he work is iuteriJeU for beginners, and llie design is eXLel- lently carried out. KverythiiiK i> there vi-hi.h »uv;ht to be placed before the learner, and yel the biok is not encumbired with references and d. tails whuli would serve merely to embarrass him ; the arraiib-eiuent is nUo very clear. Since the issue of the first edition in ltt.>0, two suc- cessive editions besides the present have l>een preiiared by .Mr. Lawrame, the present editor, a suthcient guarantee ih.it the book has answen-d the purpose lor which it was intended. —inU- ciiort' Journal, by " It is now ten yearssiuee Mr. iluiiter's modest and unpreteiidinc volume first saw the light, and few we imagine have been the students of equity practice during those years who have not l)een indebted to Us paces for their first initiation into the mysteries of the Court "i ('haneery N» ithin the compass of three Inmdred pai;es the rculer (as far as is possible without the result of prac- tical experience) may obtain an accurate idea of the various incid ntal proceedinus 'eading up t > and following ihe decree, while the several stages of tiie suit are all carefully illusiraied by forms referred to in the text and collected together in an appendix atiheeud of the yolune. We will only add that we are glad to find this little work is in such good hands, and while it continues to receive from time to time .\lr. Lawrance's careful revision, we venture to pre- dict for it a long-lived success and many future editions." — Laiv Journal. " An outline, after this fashion, of a suit in equity is contained in Mr. Hunter's little \olume, 0- 9 & LAW WOEKS PUBLISHED BY O Lush's Common Law Practice. — Third Edit, by Dixon. 2 vols. Svo., 4C.V. cloth. LUSH'S PRACTICE of the SUPERIOR COURTS of COMMON LAW at WESTMINSTER, in Actions and Proceedings over wliich they have a common Jurisdiction : with Introductory Treatises re- specting Parties to Actions; Attornies and Town Agents, their Qualifica- tions, Rights, Duties, Privileges and Disabilities ; the Mode of Suing, wliether in Person or by Attorney in Forma Pauperis, &c. &c. &c. ; and an Appendix, containing the authorized Tables of Costs and Fees, Forms of Proceedings and Writs of Execution. Third Edition. By Joseph Dixon, of Lincoln's Inn, Esq., Barrister at Law. "This is an excellent edition of an excellent work. We tliiiik that Mr. Dixon has heeu wise in basing l)is work on the original edition o( the Practice, and not upon the second edition pub- lished in the year 1856. The last nine years alone have produced a very large number of new cases, and even had the text of the second edition been followed, much must have been altered or re-written. The responsibility, more- over, for any imperfections would have been divided between three writers, and the result of their united labours would probably have not been very satisfactory. As Mr. Lush's heavy professional engagements made it im- possible for him to remodel his book himself, the best course was that it should be re-edited at first hand and not indirectly. Literary patchwork is always objectionable. To edit an author is a task requiring great skill, but to edit an author's edition is still more difficult. We congratulate Mr. Dixon on the judgment he lias displayed in selecting the proper alter- native. He has effected a most successful ' restoration.' As far as the great changes in the law permit, he has re-produced the original work. He has adopted Mr. Lush's arrange- ment, and only made those alterations and additions which recent legislation has rendered indispensable. The whole work, which con- tains altogether I,18!{ pages, concludes with a copious index, entirely re-written and very con- siderably enlarged. Mr. Dixon has made very few retrenchments in Mr. Lush's work. Nearly all his alterations have been by way of addition. The forms of declarations, pleas, &c., contained in the first part of the original work, have been, we think, wisely omitted. Their place is rather in a treatise on pleading than in one of practice. Altogether, both in what he has omitted and what he has added, Mr. Dixon has been guided by sound discretion. We trust that the great and conscientious labours he has uudergone will be rewarded. He has striven to make his work " thorough," and because he has done so we take pleasure in lirartily recommending it to every member of both branches of the pro- fession." — Solicitora" Journal, " Lush's Practice is whatTidd's Practice was in our days of clerkship, and what Archbold's Practice was in our early professional days — the practice in general use, and the received authority on the subject. It was written by Mr. Lush when he was only a junior rising into fortune and fame. His practical know- ledge, his clearness and industry, were even then acknowledged, and his name secured for his work an immediate popularity, which ex. perience has confirmed and extended. But the work was, in its turn, productive of con- siderable advantage to the author, it largely increased the number of his clients. When new editions were called for, Mr. Lush was too occupied with briefs to find time for the preparation of books, and hence the association of his name with that of Mr. Dixon as editor, and by whom the new edition has been pro- duced. Mr. Dixon reminds us that twenty-five years have passed since Mr. Lush made his appearance as an author, and vast indeed have been tiie changes the law has since witnessed. So numerous are they, that the editor has found it the most convenient course to igTiore, as it were, the second edition, to take the text of the original work as it came fresh from Mr. Lush's pen, and to mould that to the present practice. He is thus enabled to assure the reader, that for every alteration in, or addition to, the text, he alone is responsible. The in- dex is very copious and complete. Under Mr. Dixon's care Lush's Practice will not merely maintain, it will largely extend its reputa. tion." — Law Times. "The profession cannot but welcome with the greatest cordiality and pleasure a third edition of their old and much valued friend ' Lusli's Practice of the Superior Courts of Law.' Mr. Dixon, in preparing this edition, has gone back to the original work of Mr. JustLce Lush, and, as far as the legislative changes and decisions of the last tv/enty-five years would allow, reproduced it. This adds greatly to the value of this edition, and at the same time speaks volumes for Mr. Dixon's conscientious labour." — Law Journal. © © o MESSRS. BUTTERWOHTII, 7, FLEET STREET, E.G. 9 Rouse's Practical Conveyancer. — Third Edition. Two vols. 8vo., 30s. cloth. THE PRACTICAL CONVEYANCER, giving, in a mode combining facility of reference with general utility, upwards of Four Hundred Precedents of Conveyances, ^Mortgages and Leases, Settlements, and Miscellaneous Forms, with (not in previous editions) the Law and numerous Outline Forms and Clauses of Wills and Abstracts of Statutes affecting Real Property, Conveyancing jMcmoranda, &c. By R(illa Rocsi:, Esq., of the Middle Temple, Barrister at Law, Author of " The Practical Man," &c. Third Edition, greatly enlarged. " The best test of the value of a book written professedly for practical men is the practical one of the number of editions through which it passes. The fact that this well-known work has now reached its third shows that it is con- sidered by those for whose convenience it was written to fulfil its purpose well."— Zaw " This is the third edition in ten years, a proof that practitioners have used and ap- proved the precedents collected by Mr. Rouse. In this edition, which is greatly enlarged, he has for the first time introduced Precedents of Wills, extending to no less than 116 pages. We can accord unmingled praise to the con- veyancing memoranda showing the practical effect of the various statutory provisions in the different parts of a deed. Ifthe two preceding editions have been so well received, the wel- come given to this one by the profession will be heartier still." — Late Times. " So far as a careful perusal of Mr. Rouse's book enables us to judge of its merits, we think that as a collection of precedents of general utility in cases of common occurrence it will be found satisfactorily to stand the application of the test. The draftsman will find in the Practical Conveyancer precedents appropriate to all instruments of common occurrence, and the collection appears to be especially well supplied with those which relate to copyhold estates. In order to avoid useless repetition and also to make the precedents as simple as possible, Mr. Rouse has sketched out a num- ber of outline drafts so as to present to the reader a sort of bird's-eye view of each instru- ment and show hini its form at a glance. Each paragraph in these outline forms refers, by distinguishing letters and numbers, to the clauses in full required to be inserted in the respective parts of the instrument, and which are given in a subsequent part of the work, and thus every precedent in outline is made of itself an index to the clauses which are neces- sary to complete the draft. In order still further to simplify the arrangement of the work, the author has adopted a plan (which seems to us fully to answer its purpose) of giving the variations which may occur in any instrument according to the natural order of its different parts." — Late Journal. "That the work has found favor is proved by the fact of our now hiving to review a third edition. This method of skeleton precedents appears to us to be attended with important advantages. Space is of course saved, but besides this there is the still more important consideration that the draftsman is materially assisted to a bird's-eye view of his draft. Ever>'one who has done much conveyancing work knows how thoroughly important, nay, how essential to success, is the formation of a clear idea of the scope and framework of the instrument to be produced. To clerks and other young hands a course of conveyancing under .Mr. Rouse's auspices is, we think, cal- culated to prove very instructive. To the soli- citor, especially the country practitioner, who has often to set his clerks to work upon drafts of no particular difficulty to the experienced practitioner, but upon which they the said clerks are not to be quite trusted alone, we think to such gentlemen Mr. Rouse's collec- tion of Precedents is calculated to prove ex- tremely serviceable. We repeat, in conclusion, that solicitors, especially those practising in the country, will find this a useful work."— Solicitors' Journal. o Qf- -® 10 LAW WORKS PUBLISHED BY Fisher's General Law of Mortgage. — Second Edition. Two vols, roval 8vo., cloth. THE LAW of MORTGAGE, and other Securities upon Pro- perty. By William Robkrt Fisher, of Lincoln's Inn, Esq., Barrister at Law. Second Edition, very considerably enlarged. Coote's Admiralty Practice. — Second Edition. 8vo.. 16.5. cloth. THE PRACTICE of the HIGH COURT of ADMIRALTY of ENGLAND: to which is added the Practice on Appeal therefrom to the Most Honorable the Privy Council, together with original Forms and Bills of Costs. By Henky Charles Coote, F.S.A., one of the Ex- aminers of the Iligii Court of Admiralty, Author of " The Practice of the Court of Probate," &c. Second Edition, almost entirely re-written. Barry's Practice of Conveyancing. 8vo., 18.9. cloth. A TREATISE on the PRACTICE of CONVEYANCING. By W. Whittaker Barry, Esq., of Lincoln's Inn, Barrister at Law, late Holder of the Studentship of the Inns of Court, and Author of " A Treatise on the Statutory Jurisdiction of the Court of Chancery." CONTENTS: — Ch.*p. 1. Abstrarts of Title. — Ch*p. 2. Agreements. — Chap. 3. Particulars and Conditions of Sale. — Chap. 4. Copyholds. — Chap. 5. Covenants. — Chap 6. Creditors' Deeds and Arrange- ments. — Chap. 7. Preparation of Deeds Chap. 8. On Evidence. — Chap. g. Leases. — Chap. 10. Mortgages. — r'HAP. 11. Paitneiship Deeds and Arrangements. — Chap. 12. Sales and Pur- chases. — Ch»p. 1.3. S( ttlements.— Chap. 14. Wills. — Chap. 15. The Land Rfgistry Act, 25 & 26 Vict. c. 53.— Chap. 16. The Act for ohtaining a Declaration of Title, 25 & 26 Vict, c. 67. — Index. " The author of this valuable treatise on con- veyancing has most wisely devoted a considerable part of his work to the practical illustration of the working of the recent Statutes on Kegistratiou of Tiile— and for this, as well as for other rea- sons, we feel bound to strongly recommend it to the practitioner as well as the student. J he author has proved himself to be a master of the subject, for he not only gives a most valuable supply of practical suggestions, but criticises them with iiiuch ability, and we have no doubt that his criticism will meet with general ap- pioval." — Lau} AJagazitie, " 1 he author introduces a work which will be found a very acceptable addition to the law library, and to supi)ly a want which we think has hitherto been felt. It contains, in a concise and readable form, the law relating to almost every point likely to arise in the ordinary every day practice of the conveyancer, with n ferences to the various authorities and statutes to the latest date, and may be described as a manual of practical conveyancing." — I^aa Juurnal. " i his treatise supplies a want which has long been felt. J here has been no treatise on the Practice of Conveyancing issued for a lung time past that is adequate forthe present requirements. Air. Harry's work is essentially what it professes to be, a treatise on the Practice of Convey ancmg, in which the theoretical rules of real jiroperty law are referred to only for the purjinse of eluci- dating the practice. .Mr. Barry appears to have a very accurate insight into the practice in every dfpartmeulof ourreal property system. Although we cannot boast, like IJuval, of having ever read abstracts of title with pleasure, we have certaiidy read Mr. Barry's chapter on abstracts and nu- merous other parts of his work with very con- siderable satisfaction on account of the learning, great familiarity with practice, and powerof ex- position of its author. I he treatise, although capable of compressi in, is the production of a per- son of great merit and still greater promise." — Solicitors'' Jonrnttl. " Readers who recal the instruction they fathered from this treatise when published week y wjek in the pages of the Law 1 iujes, will be pleased to learn that it has been reproduced in a handsome volume, which will be a welcome addi- tion to the law library. It will be remembered that the papers so contributed by Mr. Barry were remarkaiile for tlie precision with which the law was stated, and being addressed to law students this was a characteristic of primary importance. The Author's design was to do for the practice of conveyancing what Mr. Joshua Williams has done for its principles, to describe it simply, clearly and succinctly, recollecting that he was only laying the foundation and not crowning the edifice. A work the substance of which is so well known to our readers, needs no recom- mendation from us, for its merits are paltnt to all, from personal acquaiiitance with them, i he information thiit the treatise so much admired may now be had in the more convenient form of a book, will sutfice of itself to secure a large and eag>-r demand for it." — J^aa Times. " I he work is clearly and agreeably written, and ably eluiidates the subject in hand." — Jus- tice of the I'eace, " Mr. Barry has the rare faculty of being very comprehensible to his readers; he has his sub- jects so well in hand, that he is able to conden.'ie them without in any way leaving U perceptible that too little has been done ; and so well has he laid out his t-nble of contents, that it becomes at once an el ab irate index, by which any point can be at once found ; and the legal reatier will un- derstand this when we say that the index or table of contents extends to no less than eighteen closely-i)rinted pages Ihe work is the most im- portant and best treatise on conveyancing that now exists, and the student can have no better authority than Mr. Barry to get himself well up in conveyancing. Nor can the legal prac- titioner, and especially country solicitors, find a Safer book of reference in practice than Mr. Harry's very valuable treatise." — I^eas 0/ the World. " We must content ourselves with the state- ment thnt the present is a work of very great ability. Ihere is no modern work which deals with precisely the same subj< ct, and we have no doubt whatever that this will prove a book of very great value, both to the practitioner and to the sl\ident-a.l-\tiw. "—Athenaum. Q o MESSRS. BUTTEinVORTH, 7, FLEET STREET, E. C. 11 Stephen's Commentaries. — Sixth Edition. Just readv, in i vols. Svo., .C\: Is. clotli. NEW COMMENTARIES ON THi: LAWS OF ENG- LAND, partly foundid on Blackstone. By IIknuy Joii.v Stkimckn, Scrjeant-at-Liiw. Tlie Sixth Edition, prepared for tlie jircss, by Jamks Stephen, LL.D., of the Middle Tenijjle, Barrister-at-Law, late Recorder of Poole, and Professor of English Law at Kuig's College, London. Lewis on Equity Drafting. Post 8vo., 12»-. ciotli. PRINCIPLES of EQUITY DRAFTING; with an Appendix of Forms. By IIubeut Lewis, B.A., of the Middle Temple, Barrister at Law ; Author of " Principles of Conveyancing," &c. This Work, intended to explain the general principles of Equity Drafting, as ..well as to exemplify the Pleadings of the Court of Chancery, will, it is hoped, be useful to lawyers resorting to tlie New Equity Jurisdiction of the County Courts. ••• " We havelittle doubt that this work will soon gain » favorable place in the estimation of the profession. It is written in a clear attractive style, and is plainly the result of much thoughtful and conscientious labour."— i-o.v Magazine and lievieu. " Mr. Lewis's work is likely to have a much wider circle of readers than he could have anticipated when he commenced it, for almost every page will be applicable to ( ouiity Court I'ractice, should the bill, in any shape or uudur any title, be retained in the new jurisdiction,— without it we fear that equity in the County Courts will be a mass of uncertainty,— with il every practitioner must learn the art of equity drafting, and he will 5nd no belter teacher than Wr. Lewis "—Z.aai Times. " I his will, we think, be found a very useful work, not only to students for the bar and solicitors practising in the County Courts, as anticipated by the author, but also to the equity draftsmau."— Z^Ho Journal. Lewis's Introduction to Conveyancing. Svo., ISi. cloth. PRINCIPLES of CONVEYANCING explained and illus- trated by Concise Precedents; with an Appendix on the effect of the Trans- fer of Land Act in modifying and shortening Conveyances. By Hibert Lewis, B.A., late Scholar of Emmanuel College, Cambridge, of the ^Middle Temple, Barrister at Law. " The preface arrested our attention, and the examination we have made of the whole treatise has given us (what may be called a new sensation) pleasure in the perusil of a work on Convey- ancing. We have, indeed, read it with pleasure and i>rofit, and we may say at once that .M r. Lewis is entitled to the credit of ha> ing produced a very useful, and, at the same time, original work. Ihis will appear from a mere outline of his plan, which is very ably worked out. the manner in which his dissertations elucidate his subject is clear and practical, and his expositions, with the y help of his precedents, have the best of all ^ qualities in such a treatise, being eminently ju- dicious and substantial. Mr. Lewis's work is conceived in the right spirit. Although a learned and goodly volume, it may vet. with perfect Propriety, be called a "handy book." It is esides a courageous attempt at legal improve- ment; and it is, perhaps, by works of such a ciiaracter that law reform may be best accom- plished." — ham Magazine and lietiea. "It was still fell that a work explanatory and illustrative of conveyancing precedents remained ^desideratum. Mr. Lewis pnposes to supply this want in the work now before us 1 he book will be of the greatest use to those who h.ive some an- tecedent knowledge of real property law, but who have not had much experience in the preparation of conveyances. ' How to do it' might well be the motto of the author, and certainly no ordi- nary lawyercan peruse Mr. Hubert Lewi>'s book without making himself much more competent to prepare and understand conveyancing than he was before. On the whole we consider that the work is deserving of high praise, both for design and execution, it is wholly free from the vice of book making, and indicates considerable re- flection and learning. -Mr. Lewis has. at all events, succeeded in producing a work to meet an acknowledged want, and we have no doubt be will find many grateful readers amongst more advanced, not less than among younger, students. In an appendix, devoted to the Land Transfer Act of fast session, there are some useful and novel criticisms on its provisions."— 6«/ici/w<' Journal. " Mr. Lewis has contributed a valuable aid to the law student. He h^is condensed the practice of conveyancing into a shape that will facilitate its retention by the memory, and his precedents are usefully arranged as a stries of progressive lessons which maybe used as either illustrations or exercises."— /.<ii» Times. " We tiave long felt the want of a book of this kind. It is a work of no ordinary diffi- culty, but, judging from a first perusal, it could not have fallen into better hands, the great object in compiling a book of this nature is to make it practically useful, and in this .Mr. l.e»is has been generally successful. The |>erusalof the work has given ns much pleasure, it shows a thorough knowledge of the various subjects treated of. and is clearly and intelligibly written. Students will now not only be able to become proficient draftsmen, but, by carefully studymg .Mr. l*wi<.'s dissertations, m.iy obtain an insight into the hitherto neglected principles of convey- ancing."— i^f a/ Examiner. o -o -o 12 LAW WORKS PUBLISHED BY Kerr's Action at Law. — Third Edition. 12mo., 13s. cloth. AN ACTION AT LAW : being an Outline of the Jurisdiction of the Superior Courts of Common Law, with an Elementary View of the Proceedings in Actions therein. By Robert Malcolm Kerr, Barrister at Law ; now Judge of the Sherift's Court of the City of London. Third Edition. " There is considerable merit in both works (lohn William Smith's anil Malcolm Kerr's); but the second (Kerr) has rather the advantage, iu being more recent, and published since the Com- mon Law Procedure Act. I860 "—Jurist. " Mr. Kerr's bools is more full and detailed than that of Mr. John William Smith, and is therefore better adapted for those who desire to obtain not merely a general notion but also a practical ac- quaintance with Common Law Procedure" — "Asa Third Fdition the volume ueeds no de- scription and permits no criticism. Knough to say that its present appearance will amply sustain tlie reputation it had already acquired." — Xazc 'Times, " rhis is jnst the book to put into a Student's hand when he enters the legal profession. We have had occasion more than once to recommend it to the notice of our junior brethren."— Xe/fu- leian. Solicilon^ Journal. Tudor's Leading Cases on Real Property, &c.— Second Edition. One thick vol. royal 8vo., 42s. cloth. A SELECTION OF LEADING CASES on the LAW RELATING to REAL PROPERTY, Conveyancing, and the Construc- tion of Wills and Deeds ; with Notes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister at Law. Author of " A Selection of Lead- ing Cases in Equity." Second Edition. " The Second Edition is now before us, and we are able to say that llie same extensive knowledge and the same laborious industry as have been exhibited by Mr. Tudor on fornur oicasious characterize this later production of his legal authorship; and it is enough at this moment to reiterate an opinion that Mr. Tudor has well maintained the high legal reputation which his standard works have achieved iu all countries where the English language is spoken, and the decisions of our Courts are quoted." —Law Magazine and Reviea. " The work b^fore us comprises a digest of decisions which, if not exhaustive of all the principles of our real property code, will at least be fouud to leave nothing untouched or unelaborated under the numerous legal doc- trines to which the < ases severally relate. To Mr. Tudoi's treatment of all these subjects, so complicated and so varied, we accord our entire commendation. There are no omissions of any importantcases relative to the various branches of the law compi ised in the work, nor are there any omissions or defects in his statt ment of the law itself applicable to the cases discussed by him. We cordially recommend the work to the practitioner and the student alike, but espe- cially to the former." — Solicitors' Journal. " This and the other volumes of Mr. Tudor are almost a law library in themselves, and we are satisfied that the student would learn more law from the careful reading of them than he would acquire from double the time given to the elaborate treatises which learned professors recommend tlie student to peruse, with entire forgetfulness that time and brains are limited, and that to do what they advise would be the work of a life. .Smith and Mr Tudor will to- gether give them such a knowledge of law as they could uot obtain from a whole library of text books, and of law that will be useful every day, instead of law that they will not want three times in their lives. At this well the practising lawyer might beneficially refresh his memory by a draught, when a leisure hour will permit him to study a leading case. No law library should be without this most useful book." — Lazo Timet. o Sir T. E. May's Parliamentary Practice.— Sixth Edition. Now ready, in one very thick volume, 8vo.,35s. cloth. A TREATISE on the LAW, PRIVILEGES, PROCEED- INGS and USAGE of PARLIAMENT. By Sir Thomas Erskine May, K.C.B., of the Middle Temple, Barrister at Law ; Clerk Assistant of the House of Commons. Sixth Edition, Revised and Enlarged. Contents : — Book I. Constitution, Powers and Privileges of Parliament. — Book II. Practice and Proceedings in Parliament. — Book III. The Manner of Passing Private Bills, with the Standing Orders in both Houses, and the most recent Precedents, o o- MESSRS. BllTTERWORTII, 7, FLEET STREET, E. C. 13 Latham on the Law of Window Lights. Post 8vo., 10.. cloth. A TREATISE on tl.e LAW of WINDOW LIGHTS. Francis Law Latham, of the Inner Temple, E&q., Barrister ut Law. By "This is not merely a valuable addition to the law lil>rary of the practitioner, it is a book that every law student will read with liiDlit. It exhausts the subject of which it treats." — Law Times. " His arrangement is logical, and he dis- cusses fully each point of his subject. The work, in our opinion, is both perspicuous and able, and we cannot hut compliment the author on it " — Law Journal. " A treatise on this subject was wanted, and Mr. Latham has succeeded in meeting that want." — Allicnttum. " Mr. Latham is evidently one of those authors who like to have a complete skeleton of their subject elaborated before puttin;; pen to paper; and the consequence is, that tliis little work is one which we have mut h plea- sure in recommending to the profession. The seciuence of discussion is well ordered, and the author's plan well adhered to ; and although the text comprise.s loss than ^50 octavo pages, the subject is quite exhaustively treated. To solicitors the volume will, we think, be par- ticularly serviceable. Armed with the work we have now reviewed, the practitioner will be in a fair way to cope successfully with the most exigent client who comes to consult him about his windows "—Soliiilurt Journal. " This subject haa acquired a )(eneral com- mercial interest, and a clear concise work ui)on it is, at this time, very opportune. .Mr. Latham's treatise on the Law of Window Lights appears to supply in a convenient form all the information which, in a general way, may be requiied. The text throughout is lucid and is well supported by precedents."— Buildiiitj News. " The ancient light question, owing to the demand for enlarged buildii\gs within the area of our large towns, becomes more important every day, and Mr. Latham has done well in providing a new treatise on the suliject, and setting forth some of the more recent decisions of our courts. It is well arranged and clearly written. We recommend the book." — Builder. Tudor's Charitable Trusts.— Second Edition. Post 8vo., 18s. cloth. THE LAW OF CHARITABLE TRUSTS; with the Statutes to tlie end of Session 1862, the Orders, Regulations and Instructions, issued pursuant thereto ; and a Selection of Schemes. 13y Owkn Davies Tudor, Esq., of the Middle Temple, Barrister-at-Law ; Author of " Leadinir Cases in Equity;" " Real Property and Conveyancing;" &cc. Second Edition. " Mr. Tudor in the present edition of his work has struck out beyond his original inten- tion, and has made it a complete eompcMulium of the law of charities. In carrying out this intention his object appears to iiave been to produce a practical and concise summary of this branch of the law. No living writer is more capable than Mr. Tudor of producing such a work : his Leading Cases in liquity, and also on the Law of Ileal Property, have de- servedly earned for him the highest reputation as a learned, careful and judicious te.xt-writer. The main feature of the work is the manner in which Mr. Tudor has dealt with all the recent statutes relating to this subject : we have only to add that the index is very carefully com- piled." — Solicitors' Journal. "Mi. Tudor's excellent little book on Chari- table Trusts. It is indeed no longer a little book but a bulky one of some 650 pages. Mr. Tudor however is a singular painstaking au- thor, his books, as the profession well knows, are models of industry and care, and hence their ))opularity. This second edition has col- lected the cases decided since the issue of the first, and their number is surprising — upwards of one thousand. Mr. Tudor has made his work complete by the introduction of several schemes for the settlement of charities, so that it is in all respects the text-book for the lawyer, as well as a hand-book for reference by trustees and others engaged in the management of charities." — Law Times. "The account of the Law of Mortmain and the statutes respecting charitable bequests in their bearing on the dilVerent religious orders is full and definite, and the duties of trustees are explained in a clear and straightforward way. Altogether this work must be exceed- ingly useful, not to say indispensable, to all persons who are connected with charitable trusts whether as founders, managers or trus- tees." — English Churchman. "To this second edition large additions are made, and it is now a complete compendium of the Law of Charities."— C/.riVn/ Journal. " To all who have occasion to look into the nature and origin of those trusts, together with the several Acts of Parliament which atfect or govern them. Mr. Tudor's work will be found of great value, more especially as in this second and improved edition all the more recent cases have been carefully collated.' — Belt's Messenger. » Q o -» 14 LAW WORKS PUBLISHED BY Mosely's Handy-Book for Articled Clerks. I'imo., 7s. clotli. A PRACTICAL HANDY-BOOK of ELEMENTARY LAW, designed for the use of Articled Clerks, with a Course of Study and Hints on Reading for the Intermediate and Final Examinations. By M. S. Mosely, Solicitor, Clifford's Inn Prizenian, M. T. 1867. This useful little book is intended for the use of articled clerks during the period of their arti- cles. Ine style of this book is peculiar: it is an exaggeration of the style adopted by Mr. Ilaynes in his admirable "nutlines of Equity.' The author seeUiS to think the adoption of such a style the only way to make the study of the law popular, and we are not [jrepared to say he is wrong." — Laui Magmine and Reviezi'. "I he design of this litile book is to combine instruction, advice and amusement, if anything amusing can be extracted from the routine of a solicitor's office and the studies of articled clerks. 'I'he book will certainly be found useful by any articled clerk, for it contains much information which it is sometimes very troublesome to find, and the facetiousness of Mr. Mosely's manner will doubtless help to grease the course of a rough and uneasy subject." — Lau! Journal, " There are few who read this book with care who will not readily admit that on n]any intricate points of law their notions have become much clearer than before their acquaintance with it. Both parts are well worked out, and will be found useful ; but in the second division of each chap- ter the law student will find most valuable in- formation, as there Mr. Mosely not only marks out the course of reading which he recomme:ids for each year, but also carefully analyses the contents of each book, and points out those chapters and subjects which it will be most ad- vantageous for the student to master at the first reading, and those which he ought to defer till a second perusal and a wider experience have made him more competent to understand them. "J he style is remarkably good, and, considering the sutijcct, free from technical expressions." — Iri\h Law Times. Benham's Student's Examination Guide. 12mo. Zs. cloth. THE STUDENT'S GUIDE to the PRELIMINARY EXA- MINATION for ATTORNEYS and SOLICITORS, and also to the Oxford and Cambridge Local Examinations and the College of Preceptors; to which are added numerous Suggestions and Examination Questions, selected from those asked at the Law Institution. By James Erle Benham, of King's College, London. " The book is artistically arranged. It will become a useful guide and instructor not only to law students but to every student who is preparing for a prelimiuary examination." — haw Journals " The book is written in a clear and agreeable style, and, in spite of a few blemishes, will no doubt be found useful by the class of readers for whom it is intended." — Laa Magazine and Review. " Mr. Bf nhatn lias produced a very useful manual for tlit aid of intcudin;; candidates at the solicitors' prelimiuary examinations and the Oxford and Ciimbiidge local examinations. He gives many suggestions on all the subjects of examinati.^n and full information tliercon " — Law Examination Keporler, " It is certainly a useful guide to that curious olla podriUa expected from the candidate. There are persons who can never learn to swim with- out first feeling the confidence which an arti ficial aid gives them, and to those who are nervous at faring the troubles of dates and arithmetic it may be well to have a systematized mode of 'cram' suggested in a distinct and ac- curate manner." — London Review, " A useful little treatise by Mr. J,)mes Erie Benham, intended to supply to students about to encounter the examination which precedes entering into articles of clerkship the necessary informatiou as to subjects of study " — Star. " lie has succeeded in producing a book which will doubtless prove useful to those students who desire to prepare themselves for examination without the ass stance of a tutor. The sets of examination papers appear to be judiciously selected and are tolerably full." — ■ Jriih Law Times. Ingram's Law of Compensation for Lands, &c. Post 8vo. 105. cloth. COMPENSATION to LAND and HOUSE OWNERS: being a Treatise on the Law of the Compensation for Interests in Lands, &c. payable by Railway and other Public Companies ; with an Appendix of Forms and Statues. By Thomas Dunbar Ingram, of Lincoln's Inn, Esq., Barrister at Law. O " We say at once that it is a work of great merit. It is a concise, clear and complete ex- position of the law of compensation applicable to the owners of real property and rail ;^ ay and other companies." — Law AJa^azine. " Whether for companies taking land or hold- ing it, Mr. Ingram's volume will be a welcome guide. With this in his hand the legal adviser of a company, or of an owner and occupier whose property is taken, and who demands compen- sation tor it, cannot fail to perform his duty rightly." — Lnw Times. O- « MESSRS. BUTTEinVOUTII, 7, l-LEET STREET, E.G. 15 Tomkins' Institutes of Roman Law. Part I. royal 8vo. (to be completed in Three Parts) 125. clotli. THE INSTITUTES OF THE ROMAN LAW. Part I. The Sources of the Roman Law and the Eastern and Western Empires. D.C.L., Barrister-at-Law, of Lincoln " Ihis work promises to lie an important ami valuable coiiiriliulion to the stuiiy of the Honiaa Law." — Lau; Magazine. " Of all the works on the Roman I aw we believe this will be the best suited to law stu- dents. Mr. lomkins pives us a simple Knglish history of Komaii Law, ai ranged most lucidly with mark'inal notes, and |>rinted in a form cal- culited for easy rendint; and retention in the memory. We welcome the book of Mr. lom- kins. It is calculated to promote the study of Koman Law; and both at the I niversities ;ind in the Inns of <.'ourt it is a work which may safely and beneficially be employed as a text book." — I^:v Times. " Ihis work is pronounced by its author to be strictly elementary. But in regard to the labour bestowed, the re.scarch exerci-ed, ami the ma- terials brought toKeiher, it seems to deserve a more ambitious title than that of an elementary treati.se. The chapter on lepal instruction, de- tailiog the sysleuis of legal education pursued its external History to tl)e decline of By Frederick Tomkin.s, M.A., 's Inn. in the various epochs of Rome, reflects ureal credit on the author, and so far as we know is purelv ori'.;inal, in the sense that no precedini; kntdish writer has collated the matter therein cont.'iined." — Laa^ Journal. " .Mr. lomkins has chosen his subject wisely in at least one respect, there can be no doubt that a pood introductory treatise on the Konian law is sorely needed at present. The present part is only an instalment. Ilut the present part IS unquestionably both valuable in itself and of pood promise for the future. We know of no other book in which anything like the same amount of information can be accjuired with the same ease. We shall lo'.k with preat interest for the publication of the remainder of this treatise. If the second part is as well executed as the first and bears a due proportion to it, we think the work bids fair to become the standard text bonk for English students." — Holicttort' Journal, Christie's Crabb's Conveyancing.— Fifth Edit, by Shelford. Two vols, royal 8vo., 3/. cloth. CRABB'S COMPLETE SERIES of PRECEDENTS in CONVEYANCING and of COMMON and COMMERCIAL FORMS in Alphabetical Order, adapted to the Present State of tlie Law and the Practice of Conveyancing ; with copious Prefaces, Observations and Notes on the several Deeds. By J. T. Christik, Esq., Barrister-at-Law. Tiie Fifth Edition, with numerous Corrections and Additions, by Leo>'.\rd Sheltord, Esq., of tlie Middle Temple, Barrister-at-Law. From the Law Times. " The preparation of it could not have been con- fided to more able hands than those of Mr. Shel- ford, the veter.in authority on real property law. With the industry that distinguishes him he has done ample justice to his task. In carefulness we have in him a second Crabb, in erudition Crabb's superior ; and the result is a work of which the oripinal author would have been proud, could it have appeared under his own auspices. It is not a book to be qu ted, nor indeed could its merits be exhibited by quotation. It is essentially a book of riractice, which can only be described in rude onl- ine and ilismissed with applause, and a recom- mendation of it to the notice of those for whose service it has becu so laboriously compiled." From the Solicitors' Journnl. "The collection of precedentscontninedin these two volunifs are all that could be desind. I hey are particularly well adapted lor Solicitors, being of a really practical character. They are more- over free from the useless repetitions of common forms that so much increase the bulk and expense of somecoUectionsthat we could n.ime. v\ e know not of anv colleciion of conveyaniinp precedents that would make it so possible for a tyro to put together a presentable draft at an exiK'ency, or which are more handy in every respect, even for the experienced draftsman. Mr. Shelford has proved himself in this task to be not m. worthy of nis formerrepiitation. 1 o those familiar with his other works it will be a sulVicieut recommendation of this." From the Law Magazine and Review. " I this important |iart of his duty— the remo- delling and perfecting of the I'orms-even with the pxaminalion which we ha' e already been at.le to afl'ord this work, we are able to affirm, that the learned editor has been eminentiv successful and effected valuable improvements.' From the Law Chronicle. " It possesses one distinciive feature in devoting more attention than usual in such works to forms of a commercial nature U e are satisfieii Ironi an examination of the pre sent with the immediately preceding edition that -Mr. >heltord has very con- sideraldv improved the character ol the ''ork, both in the prefaces and in the forms, (.n the whole the two volumes of Crabb s l-rrjedcnts, as edited by Mr. Leonard Shelford. will be found extremely useful in a solicitor's office, presenting a large imouM of real propertv learning, w.ith verv numerous precedents: indeed we know ol no book s.justlv entitled lotne appelKition ot hamlv as the fifth edition of Mr. Crabb s Precedents. o- o a 10 LAW WORKS PUBLISHED BY Rouse's Copyhold Manual. — Third Edition. Just published, r2mo., 10s. 6d, cloth. THE COPYHOLD ENFRANCHISEMENT MANUAL, giving the Law, Practice and Forms in Entrancliisenients at Common Law and under Statute, and in Commutations ; with the Values of Enfranchise- ments from the Lord's various Rights : the Principles of Calculation being clearly explained, and made practical by numerous Rules, Tables and Examples. Also all the Copyhold Acts, and several other Statutes and Notes. Third Edition. By Rolla Rouse, Esq., of the Middle Temple, Barrister at Law, Author of " The Practical Conveyancer," &c. " This new edition follows the plan of its pre- decessor, adopting a fivefold division: — 1. i he 1-aw. 2. 1 he Practice, with Practical Sugges- tions to Lords, Stewards and Copyholders. .'J. 1 he Mathematical couMderation of the Subject in all its Details, with Rules, Jahles and Kxam- plcs. 4. Forms. 5. 1 he ^Sta^utes, with i^otes. Of these, we can only repeat what we have said before, that they exhaust the subject ; they give to the practitioner all the materials required by him to . conduct the enfranchisement of a copyhold, whe- ther voluntary or compulsory " — L,a:i> Times. " When we consider what favor Mr. House's Practical Man and Practical Conveyancer have found with the profession, we feel sure the legal world will greet with pleasure a new and im- proved edition of his copyhold manual. Ihe third edition of that work is before us. It is a work of great practical value, suitable to lawyers and laymen. We can freely and heartily recom- mend this volume to the practitioner, the steward and the copyholder." — La?/) Magazine. " Now, however, that copyliold tenures are being frequently converted into freeholds, Mr. House's treatise will doubtless be productive of very extensive benefit; for it seems to us to have been very carefully prepared, exceedingly well composed and written, and to indicate much ex- perience in copyhold law on the part of the author."— i'f/jcJitfri' Journal. Lushington's Naval Prize Law. Royal 8vo., 10s. Qd. cloth. A MANUAL of NAVAL PRIZE LAW By Godfrey LusHiNGTON, of the Inner Temple, Esq., Barrister at Law, Wills on Evidence.— Fourth Edition. 8vo., 10s. cloth. AN ESSAY on the PRINCIPLES of CIRCUMSTANTIAL EVIDEMCE. Illustrated by numerous Cases. By the late AVilliam Wills, Esq. Fourth Edition, edited by his Son, Alfred Wills, Esq., Barrister at Law. Shelford's Succession Duties.— Second Edition. 12mo., 16s. cloth. THE LAW relatincr to the PROBATE, LEGACY and SUCCESSION DUTIES in ENGLAND, IRELAND and SCOTLAND, including all the Statutes and the Decisions on those Subjects : with Forms and Official Regulations. By Lkonard Sfelford, Esq., of the Middle Temple, Barrister-at-Law, The Second Edition, with many Alterations and Additions. " The book is written mainly for solicitors. Mr. Shelford has accordingly planned his work with careful regard t'> its practical utility and daily use."— .SV</iVi/or*' Journal. " Ihe treatise before us on the charges which the State levies on the devolution of property by death has been one of the most useful Hiid popular of his productions, and being now the text book on tne subject nothing remains but to make known its aijpearance to our readers. Its merits have been already tested by most of them."— Xaw Tirnes. " The work, although called a new edition, is in great part entirely new. On the wh(de Mr. Shelford's book appears to us to be the best and most complete work on this extremely intricate subject." — Law Magazine. \ « IS o- a MESSRS. BUTTERWOIITH, 7, FLEET STREET, E.G. 17 Woolrych on Sewers. — Third Edition. 8vo., \2s. clotli. A TREATISE of the LAW of SEWERS, including' tlie DRAINAGE ACTS. By Himphuy W. Woolrych, Serjeant at Law. Third Edition, with considerable Additions and Alterations. " Two editions of it have been speedily ex- hausted, and a tliird called for. The autlior is an accepted authority on all subjects of this class." — Lavi Times. '• This is a third and preatly enlarged edition of a book which has already obtained an esta- blished reputation as the most complete dis- cussion of the subject adapted to modern times. Since the treatise of Mr. Serjeant Callis in the early part of the 17th century, no work niling the same place has been added to the liieraturcof the Profession. It is a work of no slight labour to digest and arrange this mass of legislation; this task, however, Mr. Serjeant Woolrych has undertaken, and an examination of his book will, we think, con- vince the most exacting that he has fully succeeded. No one should attempt to meddle with the Law of Sewers without its help." — Solicilors' Journal. Grant's Law of Corporations in General. Royal 8vo., 26s. boards. A PRACTICAL TREATISE on the LAW of CORPORA- TIONS in GENERAL, as well Aggregate as Sule; including Miinicipiil Corporations ; Railway, Banking, Canal, and other Joint-Stock and Trading Bodies ; Dean and Chapters ; Universities ; Colleges ; Schools ; Hospitals ; with quasi Corporations aggregate, as Guardians of the Poor, Church- wardens, Churchwardens and Overseers, etc. ; and also Corj)orations sole, as Bishops, Deans, Canons, Archdeacons, Parsons, etc. By James Grant, Esq., of the Middle Temple, Barrister at Law. Chitty, jun. Precedents in Pleading.— Third Edition. Part 1, Royal 8vo., 20s. cloth. CHITTY, Jun. PRECEDENTS in PLEADING; with copious Notes on Practice, Pleading and Evidence, by the late Jo.-;eph Chiity, Jun. Esq. Third Edition. By the late Tompson Ciutty, Esq., and by Leofhic Temple and R. G. Williams, Esquires, Barristers at Law. (Part 2 is in preparation.) " Jo enter into detailed ciiticism and praise of this standard work would be ijuile out ol plnce. It) the present instance the niHtler ha.% lallen into competent hands, who have 5i)ared no jmins. I his valuable and useful work is ;irou(;ht down to the present time, altered in accord^mce with ilie ca es and statutes now in force, (ire.it care has been expended by the competent editors, and its usefulneNS, as heretolore, will be found not to be confined to the chambers of the special P eader, but to be of a more extended choraiter. lo those who knew the work of old no recomuienda- tion is wanted, to those younger members ot the profession who have not that privileRe we would suttgesl thnt they should at once make its ac- quaintance." — Xiii' Journul, " 1 he value of this practical work has greatly increased in the iiraclical bands of the editors. It is framed solely with the view of being a safe and ready puide for the practitioner in the art of pleading. J he uotes are concise and suggestive. and almost every precedent is accompr'nied by a list of the cases supporting it. 1 he pr. cedents themselves give abundant proof of the learning and care thai have been devoted to them. We hojie that the remainder will soon be published. When it is tinished the work will, without d-iubi. be the best and most complete work on pleading in our libraries." — /-a" Alaiiazine. •' A book almost as well known to the profession as " I'idd " was has been republished, we might almost say rewritten, and adapted to the reijuire- Oienls of modern pleading Few ll:ere are for whom assistance will not be found by reference to these pages, wliich serve vet another usetui purpose, by helping the lawyer to pick holes in his adversary's pleadings, as well as properly to frame his own. Nor is the volume uselul in the .Superior Courts only ; practitioners in the County Courts will tiud it a valuable adviserin the preiMratiou of pleadings, such as they are. — o- o »- -o 18 LAAV WORKS PUBLISHED BY Scriven on Copyholds. — Fifth Edition by Stalman. Abridged in 1 vol. royal 8vo., £\ : lO.v. clotii. A TREATISE ON COPYHOLD, CUSTOMARY FREE- HOLD and ANCIENT DEMESNE TENURE, with the Jurisdiction of Courts Baron and Courts Leet. By John Sckiven, Serjeant at Law, Fifth Edition, containing references to Cases and Statutes to 1807. By Henuy Stalman, of the Inner Temple, Esq., Barrister at Law. half a century been not only a standard work but one of unimpeachable authority, and in its pages the present generation has learned all that is known of copyhold and customary tenures. All that is necessary to say is, that in the pre- sent edition of Scriveu on Copyholds Mr. Stal- man has omitted what it was useless to retain, and inserted what it was necessary to add. Until copyholds have disappeared utterly, it is at least certain that Scriven on Copyholds by Stalman will hold undisputed sway in the pro- fession." — Lazti Jounial, " Ko lawyer can see or hear the word 'copy- hold' without associating wiih it the name of Scriven, whose book has been always esteemed not merely the best but the only one of any worth. Until a commutation of the tenure for a fixed rent-charge, afier the manner of a tithe commutation, is compelled by the legislature, this treatise will lose none of its usefulness to the solicitors in the country." — Laie Times. " It would be wholly supeiHuous to offer one word of comment on the general body of the work. Scriven ou Copyholds has for exactly Browning's Divorce and Matrimonial Causes Practice. Post 8vo., 8s. cloth. THE PRACTICE and PROCEDURE of the COURT for DIVORCE and MATRIMONIAL CAUSES, including the Acts, Rules, Orders, copious Notes of Cases and Forms of Practical Proceedings, By W. Ernst Browning, Esq., of with Tables of Fees and Bills of Costs, tlie Inner Temple, Barrister-at-Law. " After a careful study of this work, we un- hesitatingly recommend it as well to the student as to the legal practitioner." — Law Magazine and Jtfiiiew. " If the future editions are edited with the same care and ability that have been bestowed upon this, it will probably take its place as the rractice of the Divorce Court." — Jurist. "We ought not to omit noticing the very useful precedents of bills of costs which it contains. These alone are sufficient to obtain a good circulation for this manual." — Solici- tors' Journal. " Mr. Browning's little volume will doubt- less become the practice of the Divorce Court." — Law Times, Brandon's Law of Foreign Attachment. 8vo., lis. cloth. A TREATISE upon the CUSTOMARY LAW of FOREIGN ATTACHMENT, and the PRACTICE of the MAYOR'S COURT of the CITY OF LONDON therein. With Forms of Procedure. By Wood- THORPE Brandon, Esq., of the Middle Temple, Barrister-at-Law. <S Moseley on Contraband of War. Post 8vo., 5«. cloth. WHAT IS CONTRABAND OF WAR AND WHAT IS NOT. Comprising all the American and English Authorities on the Suhjcct. By Jo.SEr'H Moseley, Esq., B.C.L., Barrister at Law. ''& »- MESSRS. BUTTERWOKTH, 7, FLEKT STKEI:T, E.G. I'J Chadwick's Probate Court Manual. Royal 8 vo., 12s. cloth. EXAMPLES of ADMINISTRATION BONDS for the COURT of PROBATE; exhibiting tlie Principle of various (Jraiits of Administration, and the correct INIode of preparing the Bonds in resj)ect thereof; also Directions for preparing tlie Oaths, arranged for practical utility. With Extracts from the Statutes; also various Forms of Affirmation prescribed by Acts of Parliament, and a Supplemental Notice, bringing the work down to 1805. By Samuel Ciiadwick, of Her Majesty's Court of Probate. " We undertake to say that the possession of this volume t>y practitioners will prevent many a hitch and awkward delay, provoking to the lawyer himself and difficult to be salislactorily explained to the clients."— Law Magazine and lieiiesv. " Mr. Chadwick's volume will be a necessary part of the law library of the practitioner, for he Las collected |>recedents that are in constant re- quirement. Ihis is purely a book of practice, but therefore the more valuable. It tells the reader what to do, and thai is the information most required after a lawyer betiius to practise." — Law Timet. Grant's Law of Banking.— Second Edition by Fisher. 8vo. 2\s. cloth. GRANTS LAW of BANKERS and BANKING and BANKS OF ISSUE, Limited and Chartered, and Winding-up ; Directors, Managers and Officers ; and the Law as to Cheques, Circular Notes or Letters of Credit, Bank Notes, E.xchequer Bills, Coupons, Deposits, &c. (Appendix contains the Bank Notes Issue Bill, and Reasons for Bill, and Official Bank Returns.) Second Edition. By R. A. Fisher, Esq., of the Middle Temple, Barrister-at-Law. "The present editor has very much in- creased the value of the original work, a work whose sterling merits had already raised it to the rank of a standard text-\iook."— Law ^faga- zine. " No man in the profession was more com- petent to treat the subject of Banking than Mr. Grant. This volume appears opportunely. To all enfiaRcd in the litigations, as well as to all legal advisers of Bankets, Mr. Grant's work will he an invaluable assistant. It is a clear and careful treatise on a subject not already exhausted, and it must become the text-book upon it." — Law Times. " A Second Edition of Mr. Grant's well- known treatise on this branch of the law has been called for and ver>' ably supplied by Mr. Fisher." — Law Times, Second Xolice. " The learning and industry which were so conspicuous in Mr. Grant's former work are equally apparent in this. The book supplies a real want, which has long been felt both by the profession and by the public at large." — Jurist. " We commend this work to our readers. It is at once practical and intelligible, and is of use alike to the unprofessional as well as the professional reader. No bank, whether a pri- vate concern or a joint-stock company, should be without it." — Money Market Reiiew. Parkinson's Common Law Chamber Practice. 12ino., Is. cloth. A HANDY BOOK FOR THE COMMON LAW JUDGES' CHAMBERS. By Geo. H. Parkinson, Chamber Clerk to the Hon. ^Ir. Justice Byles. " Kor this work Mr. Parkinson is eminently qualilied." — Jurist. " It is extremely well calculated for ihe purpose for which it is intended. So much work i.s now done in Common Law Chambers by junior clerks that such a little treatise is much wanted. Mr. Parkinson has performed his task skilfully and with care." — S'licitors' Journal. " I'he practice iu Chambers has become saffi- ciently important to call for a tre.iiise devoted to it, nor could a more competent man for the task have presented himself than Mr. Parkinson, whose great experience as well as intelligence have lonp placed him in the position of an autho- rity on all matters appertainini? to this peculiar but very extensive branch of Common Lay Prac- tice.''— Laai Times. " There is much that would prove ver>- useful to the practitioner in Mr. Parkinson'scompilation. and which, so far as we an- aware, is not to be found in any other book collected^ with equal con- ciseness."— ^aa' Magazine and lietiea. -O- O- -s 20 LAW WORKS PUBLISHED BY Oke's Magisterial Synopsis. — Tenth Edition. Very nearly ready, one very thick vol., 8vo. THE MAGISTERIAL SYNOPSIS : a Practical Guide for Magistrates, their CJerks, Attornies and Constables; Summary Convictions and Indictable Offences, with their Penalties, Punishments, Procedure, &c., being Alphabetically and Tabularly arranged. By George C. Oke, Chief Clerk to the Lord Mayor of London, Author of " The Magisterial For- mulist," " The Laius of Turnpike Roads," " A Handy Book of the Game and Fishery Laios," &c. &c. Tenth Edition. Opinion of Lord Chancellor Westbury. " Upper Hyde Park Gardens, October 30lh, 1862. "The Lord Chancellor presents his compliments to Mr. Oke, and thanks him very much for the valuable present of his most excellent and elaborate works, the ' Magisterial Synopsis' and ' Magisterial Formulist,' which, in the opinion of the Lord Chancellor, will be of great public service. " To George C. Oke, Esq., Src, &c., &c.. Mansion House, London." Opinions of the late Lord Chancellor Campbell. " I congratulate you on the great success of your valuable Synopsis, and I shall be well pleased to be Dedicatee of successive editions while you desire that 1 should have this honour." — Letter to Mr. Oke, dated April 6tk, 1858. " Stratheden House, May 2ith, 1858. " My dear Sir, — I thank you for the copy of your new edition which you have had the goodness to send nie, and I am glad to hear of the increased circulation of the Work. " Your instructions as to cases under 20 & 21 Vict. c. 43, will be particularly useful. " I remain, yours faithfully, " George C. Oke, Esq." " Campbell." " I am aware that the Lord Mayor has at present an able assistant in the person of a gentleman of tlie name of Oke, Author of the ' Magisterial Synopsis,' a very enterprising, able and learned man." — The Lord Chancellor {Campbell) in the House of Lords, February 23rd, 1860. Oke's Turnpike Laws. — Second Edition, 12ino., 185. cloth. THE LAWS of TURNPIKE ROADS; comprising the whole of the General Acts; the Acts as to the Union of Trusts, for facilitating Arrangements vk^ith their Creditors; the Interference of Railways and other Public Works with Roads, their Non-repair, and enforcing Contributions from Parishes (including the Acts as to South Wales Turnpike Roads), &c. &.C. ; practically arranged, with Cases, Notes, Forms, &c. &c. By George C. Oke, Author of ''The Magisterial Synopsis" and ''The Magisterial Formulist," &c. Second Edition. " In the ' '■ynopsis' Mr. Okp is iinitiue ; the plan was perfectly oiiginal. and he has no com- peiitor. In the I urnpike Law he is himself a conii)etltor with others, who had previously pos- session of the field. Nevertheless, -o well has he exet uted his design ihat his volume has fairly taken precedence in the esteem of tlie profession, because he has written it with the same in- dustrious research and painstaking correction whicli distinguished the 'Synopsis.'" — Law 'i'tmes. " All Mr. Oke's works are well done, and his 'Turnpike Laws' is an aduiiralile specimen of the class of books re' uired for the guidance of magistrates and legal practitioners in country districts." — Ho/icitun Jonr/tal, « © Q MESSRS. BUTTERWOKTII, 7, FLEET STREET, E.G. 21 Oke's Magisterial Formulist. — Fourth Edition. Now reiidy, in One thick volume, 8vo., .'ih.i-. clotli. The he MAGISTERIAL FORMULIST; beiiitr a complete Colkc- tion of Forms and Precedents for juacticiil use in all Cases out of Quarter Sessions, and in Purocliiiil Matters, by JNIaj^istrates, their Clerks, Attornies and Constables: with an Introduction, Explanatory Directions, Variations and Notes. By (Jkoiuje C. Uke, Autliorof " The Magisterial Synopsis," &.c. &c. Fourth Edition, enlar^^ed and improved. •«• This new edition is brought down to the close of the last Session of Par- liament (1S67). It is much enlarpred and improved, and contains the Forms under the Master and Servant Act, 18G7, and the maj^isierial legis- lation of the last six years. of I86l liave justitird and drmaiided a new edition, and in lliat new edition we believe will be found the same qualities of accuracy and cornpletencM which disiingnished its three predecessors. No clerk to justices, and no justice who is anxious to discliaige his onerous functions successfully, should be without the ' MaRisicrial Formulist' and the ' Manislc ri^l Synopsis;' and it need scarcely be added that those members of the profession who are brought in coutact with business iu petty sessions will derive great assistance from them." — Laze Jfurnal. " Til is wnrk is too well known to nerd eulogy. It is in univirsal use in magistrates' courts ; IC has been out of print for some time, and a new edition was ur^eutly requiied. We believe that Mr. Oke purpusely delayed it that it miglit be made contemporaneous, or nearly so, with the Synopsis. The coiitenis are brouuhl down to the end of last yeai, and coiisequenlly it in- cludes a 'I the forms required by the new statutes and decisions ol the six years that liave elapsed since the publication of tne third edition. They have been arraiiced under divers new titles, and especially the modes of deacril'inp indictable offences have been much enlarR d. It is a book that has been known so long, and so extensively, that no fui titer description of it is needed now." Laa Times. "The publication of a new edition of this most useful collection of forms has been urgently called for. Mr. Oke's works are so well known to all who are concerned iu the administration of magisterial law, that we need say no more tlK<n that the present edition seems to have been prepared with his usual care. On a reference to a very full index at the end of the book, we have been unable to detect the omission of any subject in the place where it might be expected to be found, and such lories as the author has had to draw, and not merely to transcribe, appear well executed." — So/icilort' Jiturriat. " Mr. Oke has had many predecessors in his oflice of Chief Clerk to the Lord Mayor of London of skill, learning and reputation, but it would be impossible to name any one ot such olVuers who has rendered such signal services to tl.e administration of the law by the justieis as the author of the book before us it is indeed ditticult to offer any remarks of moment upon a work which has gone through three editions, and has been acknowledged as com- plete by all who has had occasion to use it. But time alone, and the m.iss of new legisla lion which it has brought with it, have made tlie revision of the book necessary. The im- portant changes and extensions ot the law ad- ministered by the magistrates since the session Notes. By C. W. Lovksv, Esq., of Lovesy's Law of Arbitration (Masters and Workmen). 12mo, 4«. cloth. {Dedicated, hi/ jfrrmis.tioti, to Lord St. Leonards.) THE LAW of ARBITRATION between MASTERS nnd "VVORKMl'^N, as founded upon the Councils of Conciliation Act of 18G7 (30 & 31 Vict. c. lOo). the Masters and Workmen Act (o Geo. 4, c. 96), and other Acts, with an Introduction and the Middle Temple, Barrister at Law. " Where the adoption of this act is conleni- plated, a betiei hiindbook could not be provided fur the b''ii<l''nce of masters and men than this edition of the act (which has been carefully and intelliiiently noted by .Mr. I.ovesy), as bein^ printed iu a convenient form for use and provid»d with nn excellent index."— /-«» Timet. " 1 he professed object of the aiiihor has been to pive the siibitance of the two siatules in a impniar form, and in that endeavour he seems to nave succeeded." — Law Journal. " VS e ihiiik the duly has been well jierformed by Mr. I.ovesy. He has piven us a clear and concise stalenieni of the effect of the five statutes aforesaid, nnd we think his little book will be found extremely useful."— .Su/ici/Kr/ Journal. " I think you have bestowed much attention upon the late statute and added some useful Uiiies."- /.ore/ ■Si. L-evnartls. In a plain familiar style, such as may be readily comnreheinled by those for who»e benefit he writes, the author has (?i»eii the substance of the several statutes relatinn to this siibjecl, and the notes which he has introduced will consider- ably facilitate the attainment of bis objecl. I he book is not exclusively addressed to the le^-al world ; all those who come wiihiu Ibe compre- hensive terms of employers and eniploytd may refer to it wiih advaiita);e, and we sincerely trust that the publication of this useful work w ill be the means of decreasing some of the cx- istiuK' difficulties." — Junice oj' the Peace. &- -JQ oo LAW WORKS PUBLISHED BY Trower's Church Building Laws. Post 8vo. 8s. cloth. THE LAW of the BUILDING of CHURpHES, PAR- SONAGES, and SCHOOLS, and of the Division of Parishes and Places. By Charles Francis Tkower, M.A., of the Inner Temple, Esq., Barrister at Law, late Fellow of Exeter College, Oxford, and late Secretary of Pre- sentations to Lord Chancellor AVestbury. " A good book on this subject is calculated to be of considerable service both to lawyers, clerics and laymen, and, on the whole, after taking a survey of the work before us, we may pronounce it a useful work. It contains a great mass of inforoidtion of esseritial import, and those who, as parishioners, legal advisers, or clergy, men, are concerned with glebes, endowments, district chapelries, parishes, ecclesiastical com- missions, and suchlike matters, about which the pub ic, anil notably the clerical public, seem to Know but little, but which it is needless to say are matters of much importance." — So/icitors' Juuntal. " i he questions discussed make the work a most valuable legal guide to the clergy. Mr. J rower proposes by this volume to assist the clergy and the lawyers in their dealing with this subject. His book is just the one we could wish every clergyman to possess, for if it was in the hands of our readers they would be saved the trouble of asking us very many questions." — Clerical Journal, " Mr. J rower brings his professional research to the rescue. In a well-arranged volume this gentleman points out concisely and intelligibly how the difficulties which usually beset parties in such matters may be avoided."— Ujefvrd University Herald. " 1 he learned author of this lucid volume has done his best to summarise the several acts of par- liament that bear upon ecclesiastical structures, and to explain their meaning. On all the topics germane to its title this volume will be found a handy book of ecclesiastical law, and should on that account be made widely known among the clergy. The production is worthy of its author, and will, we hope, shortly establish itself in the good esteem of the clerical and general public." —Church Mail. " Mr. I'rower aims very successfully at giving' a complete account of the present state of the law, and rendering it as nearly as possible in- telligible, and we hojie that it may prove useful to all church building clergy anJ laity. It is a compact and handy treatise, very clearly written, well arranged, easy of reference, and, besides a good table of contents, it has an elaborate index. It is a book we are glad to have and to recom- mend." — Literary/ Churchman, " ts'ot only has Mr. I'rower performed this work, but he has performed it in a th<iroughly satisfac- tory manner, giving us a volume which will set many minds at rest, and prevent, it may be, many a parish squabble, or its natural complement a lawsuit. We recommend all our clerical readers to peruse the book with attention from beginning to end, and at once to give it a place in their libraries." — Church Opinioii, " Mr. Trowcr has, as we have said, supplied this need ; nnd done so fairly well. On the sub- jects of these acts, viz. — church building, par- sonage building, school building (including in the word 'building' augmenting and repairing) and erecting districts or sub-parishes — he has pro- duced a very useful and concise practical guide." — Guardian. " 1 his book will be a boon to many a puzzled and bewildered clergyman. Mr. J'rower deserves the gratitude of all those who wish for a guide through that 'labyrinth of ambiguity,' which ourunecclesiastical method of ecclesiastical le:;is- lation has built up. We commend the book to every clergyman " — Chwchman. " We welcome Mr. Trower's book as a valuable and useful manual of the obscurest and most dis- creditable portion of the statute book." — Record, " Mr. Trower took upon himself a task by no means inviting, but one which the author — evidently looking upon it as a labour of love — has performed in a manner which doesjustice to the subject and credit to his own reputation as a scholar and lawyer." — Builder, Drewry's Equity Pleader. 12mo., 6s. cloth. A CONCISE TREATISE on the PRINCIPLES of EQUITY PLEADING ; with Precedents. By C. Stewart Drewry, of the Inner Temple, Esfj., Barrister at Law. "It will be found of f,'reat utility as intro- ductory to the more elaborate treatises, or to refresh the memory after the study of the larger books." — Lmv Time3. " Keeping in view Mr. Drewry's design, namely, to produce a work on Equity Plead- ing for the information of students, he has successfully accomplished his professed ob- ject." — Law Chronicle. " As an introduction to pleadings as they now subsist in the Equity Courts the book is well timed." — Law Magazine and Law Review, Smith's Bar Education. Svo., 9.«. cloth. A HISTORY of EDUCATION for the ENGLISH BAR, with SUGGESTIONS as to SUBJECTS and METHODS of STUDY. By Philip Anstie Smith, Esq., M.A., LL.B., Barrister-at-Law. ©- O o MESSRS. BUTTERWOHTH, 7, FLEET STREET, E.G. 23 Goldsmith's Equity. — Fifth Edition. Post 8vo., IGs. cloth. THE DOCTRINE and PRACTICE of EQUITY : or, a Con- cise Outline of Proceedings in the High Court of Chancery. Designed principally for the Use of Students. By G. Goldsmith, Esq., M.A., Bairister-at-Law. Fifth Edition, including all the alterations made in pur- suance of the late acts and the orders thereon to the present time. " A vohnue designed for tlic law student. pcrliaps tliroufili life, crude and unready. Hence such a volume as Mr. Goldsniitli This manual seeks to prevent such a result hy has published is a perennial, and, while introducing to the learner a plain summary of addressed principally to the student, it may the doctrines of equity, together with a sketch be profitably read by the practitioner. Five of the practice in the Chancery Courts. We editions attest the approval of those who have cordially recommend Mr. Goldsmith's Treatise experienced the benefit of its instructions. It to those for whom it is designed." — The Law has grown in bulk with each successive appear- Mugnzine and Review. ance, as Mr. (loldsmith discovered what were " It contains a great deal of miscellaneous in- the wants of his readers, and a continued sue- formation, and if a student were confined to cession of new topics has been added. It is the selection of one book on equity, both for now an extremely comprehensive sketch of its doctrine and practice, he could hardly do the history, jurisdiction and practice of our better than choose the one before us." — The Courts of Equity — a summary of what could Solicitors' Journal. be obtained only by hard reading of Reeve "It is eminently a student's book, and as and Spenie and Ayckbourn and Drewry. It such has we believe been appreciated. We re- commences with an historical outline : then it collect consulting a former edition a dozen states the principles of equity jurisprudence ; years ago, and we are glad to see that it is still then it shows their application to the various in favour. The Work contains evidence of ori- subject matters that fall within its jurisdic- ginality, and freedom from hackneyed phrase- tions; and finally, it presents a clear and very ology. It is not intended to lay before the instructive sketch of the procedure by which student the system of Equity jurisprudence, those jurisdictions are enforced." — Law Times. hut it is intended as a pioneer for the studies " Theexcellencies of each ('Smith's .Manual' that should follow, and it is well suited to that and ' Hunter's Suit') appear to be successfully end. It will certainly impress the student combined in Mr.Goldsmith's Treatise. Though with a notion of Equity principles and practice, professedly an elementary work, its merits are and it will so far familiarize him with the sub- greater than its pretensions. Professing to ject, that he will more readily catch hold of its accomplish a limited task, that task has been ramifications when he studies it more deeply." well done. The knowledge in haste and by — The Leguleian and Articled Clerks' Matja- piecemeal acquired, remains long ill digested, zine. Petersdorff's Abridgment of the Common Law. — New Ed. Now complete in 6 vols., Royal 8vo., 71. 7s. cloth. A CONCISE, PRACTICAL ABRIDGMENT of the CO-AI- MON AND STATUTE LAAV, as at present administered in the Common Law, Probate, Divorce and Admiralty Courts, excluding all that is obsolete, overruled or superseded : comprising a Series of Condensed Treatises on the dilferent Branches of the Law, Avith detailed Directions, Forms and Prece- dents ; an Alphabetical Dictionary of Technical Law Terms and Maxims, and a Collection of Words that have received a SpecialJudicial Construction ; the whole illustrated by References to the principal Cases in Equity, and in the Scotch, American and Irish Reports, and the most eminent text writers. By Chaules Petersdouff, Serjeant-at-Law, assisted by Charles W. Wood, Esq., and Walker Marshall, Esq., Barristers-at-Law. " Mr. Serjeant PetersdorfT has brought to a on the completion of the first volume. Now close his labours upon this great and useful that the sixth has been published, we have work. It is a complete dictionary of the law nothing to add, except that the execution as it exists at the present day, and is also an seems to be in the best style of this laborious index to every law library. We noticed the jurist and professional wiitcr." — Timet. plan and object of this work at some length o- •24 LAW "WORKS PUBLISHED BY -& Glen's Law of Highways.— Second Edition. Post 8vo., '20s. cloth. The LAW of HIGHWAYS: comprising the Highway Acts 1835, 1862 and 1864; the South Wales Higliway Act ; the Statutes and Decisions of tlie Courts on the subject of Higluvays, Bridges, Ferries, &c., iuchiding the Duties of Iligliway Boards, Surveyors of Highways, the Law of Highways in Local Board of Health Districts; Highways affected by Bailways, and Locomotives on Highways. With an Appendix of Statutes in force relating to Highways. By W. Cunjsingham Glkn, Esq., Barrister at Law. Second Edition. " Altouethcr we may contiilently venture to confirm ilie statement in the jirel'ace that it may now fairly claim to be recognized as a standard authority on the law of hit;hwiiys by those who are eni;aged officially or otherwise in the admi- nistration of that branch of the law. It is so as we from personal knowledge can affirm, and, we may add, that it is received by them as a trust- worthy guide in the dischcirge of their onerous duties." — Law Times, " The present edition of Mr. Glen's work con- tains a great deal of valuable matter which is entirely new. lo those interested in the law of highways this manual as it now appears will he found a safe and efficient guide." — Law Magazine. " iVIr. Glen has an established reimtation in the legal profession as a careful and laborious writer, and this new edition of his new work ou highway law will convince those who refer to it that lie has neglected no topic likely to (>e useful to those whose duties require them to have a knowledge of this particular branch of the law. This work aspires above others which profess merely to be anuotated reprints of acts of parliameot. It will be found to contain much information which might be looked for elsewhere in vain. Ihe general law upon the sub;ect is set forth with a care and lucidity deserving of great praise, and a good index facilitates reference, and renders this work the most complete on this inijiortant subject which has yet beeu published."— yuf/ice of the Pence. " Mr. (ilen may well say that an entire revision of the first edition was necessitated by the recent statutes, and his second edition is a bulky volume of 800 ^)ages. His work may be read with satis- faction oy the general student as well as referred to with confidence by the practitioner. We need say nothing further of this second edition than that we think it likely lo iiiaiiitaiii fully the repu- tation obtained by iis predecessor. It has the advantages, by no means unworthy of considera- tion, of being well priuted and well indexed, as well as well arraugtd, and a copious index of statutes renders It a perfect compendium of the authorities bearing in any way ou the law of highways."— Solicitors' Journal. Glen's Law of Public Health — Fourth Edition. Post 8vo. 24s., cloth. A TREATISE on the LAW relating to PUBLIC HEALTH and the Local Government of Towns, including the Law relating to the Removal of Nuisances injurious to Health and the Prevention of Diseases ; with Statutes and Cases. By W. Cunningham Glen, Esq., Barrister at Law. Fourth Edition. Fry's Specific Performance of Contracts. 8vo., 16.5. cloth. A TREATISE on the SPECIFIC PERFORMANCE of CONTRACTS, including those of Public Companies, with a Preliminary Chapter on the Provisions of the Chancery Amendment Act, 1858. By Edward Fry, B.A., of Lincoln's Inn, Esq., Barrister at Law. " It will be seen what a masterly grasp the author has taken of his subject, and his treatment of the various parts of it ecjually exhibits the hand of a man who has studied the law as a science. He is skilful in the extraction of principles, )irecise in the exposition of them, apt in their apjilication to the particular case, but in all he is thoroughly 1)iactical. 1 he practiliotier who uses it as a text )Ook will find in it an adviser who will tell him not only what the law is, but how it may be en- forced." — Law Times. " .Mr. Fry's work jiresents ina reasonable com- pass a larKe tiuantity of modern learning on the subject of contracts, with reference to the com- mon remedy by specific performance, and will thus be acceptable to the profession generally." — Law Chronicle. " There is a closeness and clearness in its style, and a latent fulness in the exposition, which i.ot only argue a knowledge of the law, but of those varying circumstances in human society to which the law has to be am^Med ."—Spectator. " Mr. Fry's elaborate essay appears to exhau'-l the subject, on which he has cited and brought to bear, with great diligence, some 1,500 cases, which include those of the latest reports."— iaw JUanaziiie and Review. " Although a professional work, it is sufficiently pojiular in style to be serviceable to all persons engaged in commercial or joint-slock under- takings." — 'I'he 'Times. 1 he law of specific performance is a growing law just now, and the characteristic which gives its special value to Mr. I'ry's work is, that the recent cases are as well digosted in his mind as the older ones. Mr. Fry's is one of the best specimens of the modern law book." — The Lconomist. ©- © o MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 25 Oke's Game and Fishery Laws. — Second Edition. 121110., lOs. Gd. clotli. A HANDY-BOOK of the GAME and FISHERY LAWS ; containing the whole Law as to Game, Licences and Certificates, Pouching Prevention, Trespass, Rabbits, Deer, Dogs, Birds and Poisoned Grain tliroughout the United Kingdom, and Private and Salmon Fisheries in England. Systematically arranged, with the Acts, Decisions, Notes, Forms, Suggestions, &.C., &c. By George C. Oke, Autlior of " JTiC Magisterial Synopsis," &c. &c. Second Edition. • 0* This Edition includes Chapters on the Scotcli and Irish Game Laws, Pro- perty in Game, Suggestions for Amendment of tlie Laws, the Poaching Prevention Act, 1862, the Poisoned Grain Prohibition Act, 18G3, &c. &c. " The first editiou haviiii; enjoyed a rapid sale, a second has enabled Mr. Oke greatly to enlarge his design and to add the very im- portant statutes which have been paS5ed since the publication of the first edition. Its size is doubled, a tabular list of the penalties has been appended, and the index made extremely copious and complete. This is now really what it is termed, a Handy Book of the Game and Fishery Laws, and gives all the information that can be ri (juired by the sportsman or his legal adviser." — Law Times. " This treatise has come out at a very season- able time, casting the light of English law en recent statutes for the protection of game by land or water, and will be found invaluable to all connected with those laws." — Perl/ishire Courie". " The work is carefully composed, and coii- taius a full index." — Suliciiors' Journal. " Care and Industry are all that ran be shown in such productions, and theje qualities are generally shown in the present works. Mr. Oke's book takes a somewhat larger range than Mr. Faterson's, as it embraces the lale statute relating to the Salmon Fisheries." — Al/ieiiitum, " The plan of Mr. Oke's Handy Book is a very plain and useful one • • It will be a most acceptable addition to the country geiitle- mun's library, and piesents a most intelligible guide to the existing Englitli laws on game and fish, brought down to the present time." — 'I'Ae Field. " To sportsmen, as well as to those magis- trates and prolessional gentlemen who aie coii- cenitd in the administration of the Game Laws, Mr. Oke's digest and interpretation of the various statutes will prove of great assistaoce." — Stamford \Icrcurt) " Mr. Oke makes the laws easily rompie- hended in all their bearings, so that the pir^tpn requiring information will find it at once, and that in a condensed form. • • It is a work that every sportsman would find useful, now ^hat the season is before him and lie is anxious to know how the law st.mds uudtr the reci ut at ts of parliament." — Util'i Scv Menenger. " We recommend justices, landlords and others whom it behoves to be well acquainted with the Game Laws, to supply themselves with a copy of this work ; they will find every requisite information in a small space and in au intelligible form." — CamSridgt Chronicle. Smith's Practice of Conveyancing. Post 8vo., 6j>'. cloth. AN ELEMENTARY VIEW of the PRACTICE of CON- VEYANCING in SOLICITORS' OFFICES; with an Outline of the Proceedings under the Transfer of Land and Declaration of Title Acts, 18C'2, for the use of Articled Clerks. By Edmund Sjiitii, B.A., lute of Pembroke College, Cambridge. Attorney and Solicitor. O © ©- -© 20 LAW WORKS PUBLISHED BY Powell on Evidence.— Third Edition by Cutler & Griffin. Now ready, 12mo., 15?. cloth. THE PRINCIPLES and PRACTICE of the LAW of EVI- DENCE, By Edmund Powell, M.A., Barrister at Law. Third Edition by John Cutler, B.A., of Lincoln's Inn, Barrister at Law, Professor of English Law and Jurisprudence, and Professor of Indian Jurisprudence ; and Edmund Fuller Griffin, B.A., of Lincoln's Inn, Barrister at Law. " We have very great pleasure in noticing this edition of a work with which we have long been familiar. It was certainly a good idea to make the book useful to the equity practitioner, (t was a still better idea to adapt the Anglo- Indian rules of evidence, which must assist materially those who are stud\ing in England for the Indian bar, or preparing for the Indian civil service. Mr, Cutler, being Professor of Indian Jurisprudence at King's College, has executed this latter branch of the work with the ability which was to be expected from him, and we can heartily recommend this excellent edition of Mr. Powell's hookas likely to prove of very wide utility." — Laio Times. "To put before students in an attractive and concise form the principles of the laws of evidence the authors have achieved a success. The treatise before us has with great care and skill incorporated the principles of evidence observed in equity, and also the salient rules adopted in the An^'lo-lndian courts. While we think that the sphere of this treatise must be confmed to the education of students, we have no hesitation in assertmg that within that sphere the book is a great success, and we cordially recommend the volume to students both for the English bar and for the Indian bar. Its simplicity and perspicuity render it also a valuable aid to members of the Indian civil service." — Law Joufiial. " This is a new edition of a work which we fancy has scarcely been as well known as it deserves. It has not of course the pretensions to completeness of Mt. Pitt Taylor's 'jook, nor possibly has it so much merit as an original and scientific treatise as Mr. Best's, at the same time it is probably more useful than either for ready reference in court on ordinary points. The present volume is of liatidy size, is moderately cheap, and its contents are re- markably well arranged, so tliat anything it contains can be rapidly found. We think this will be enough to make the work useful to practitioners on circuit, at quarter sessions, and especially in county courts where access to a library is not usually to be had and it is inconvenient or impossible to take many or large books. To students and young barris- ters also the book will be useful, not only for reading at home, as more practical than Best and less detailed than Taylor, but also for taking with them into court." — Solicitors' Journal. " This is a good edition of a very useful vc ork. The book itself we have always considered as well adapted for the student and convenient for the jjractitioner. It explains principles clearly, and illustrates them without over- loading them by the cases quoted. The work is more practical in its object than that of Mr. Best, and treats the subject in a more succinct manner than Mr. Pitt Taylor. There could be no better introduction to the study of the law of evidence than Mr. Powell's book, whilst it is perfectly suitable for ordinary reference, and the care that has been bestowed on it by the present editors will, we think, considerably enhance its value The law has been brought down to the close of last year, and the principles of the law of evidence followed by the Court of Chancery have been incorporated in the work, and the rules of evidence adopted by the Anglo-Indian courts have been referred to, the chief part of the Indian Evidence Act being in the appendix. This last feature of the work will render it very valuable for those who are studying for the Indian civil service, and will not be with- out interest for all who wish to understand thoroughly the principles of the law of evi- dence." — Law Magazine and Review. " We are glad to see a new edition of Mr. Powell's work on the law of evidence. It was no doubt an act of some temerity on Mr. Powell's part wlien he first gave the legal public the fruits of his labours on this subject in the face of such exhaustive treatises as Taylor, Phillips, Starkie, and Roscoe. But that such » work was wanted, and is appre- ciated by the profession, is evidenced by the sale of two editions, and the production of a third. Mr. Powell's plan is well known. It is to state fundamental principles and illus- trate them by leading cases, and he has brought to bear on his task powers of arrange- ment, of brevity and clearness of expression seldom met with. The present edition is ably edited by Mr. Cutler and Mr. Grithn, who have, in addition to tlie previous text, added the principles and practice of the law of evi- dence adopted by the Court of Chancery, and other important matter, and brought down the law to the present time. The hook will be found a most useful addition to the law- yer's library, and to those practising, or about to practise, in the county courts it is almost a necessity."— Xaw Examination Reporter. o -13 Q MESSRS. BUTTERWOKTU, 7, FLEET STREET, E.G. 27 Wigram on Extrinsic Evidence as to Wills. Fourth Edition. 8vo., 1 1.5. cloth. AN EXAMINATION OF THE RULES OF LAW respectirifr the Admission of KXTHIXSIC EVIDENCE in Ai.l of tho INTEM- PRETATION OF WILLS. By the Ri-ht Hon. Sir Jamks Wiguam, Knt. The Fourth Edition, prepared for the press witli the sanction of the learned Author, by W. Knox Wiguam, M.A., of Lincohi's Inn, Es<i., Barrister-ut-Law. " In the celebrated treatise of Sir .lames Wigram, the rules of law are slated, discussed and explained ia a Diaoner which has excited the admiration of every jud^e who has had to con- sult it" — /x)i-rf Kiiitsdoun, in a Priip i'lmncil JudtmeHl.JulyBih, 1B6U. Williams's Common Law Pleading and Practice. Svo., l'2s. cloth. An INTRODUCTION to PRACTICE and PLEADING in the SUPERIOR COURTS of LAW, embracing an outline of the whole proceedings in an Action at Law, on Motion, and at Judges' Cliain- bers; together with the Rules of Pleading and Practice, and Forms of all the principal Proceedings. By Watkin Williams, Esq., of the Inner Temple, Barrister at Law. " For the Student especially the book has fea- tures of peculiar value, it is at the same lime scientific and practii al. and ihrouKhout the work there is a judicious uniou of geueral priuciples with a practical treatment of the subject, illus- trated (>y forms and examples of the main pro- ceedintjs."— yurijf. Bainbridge on Mines and Minerals.- Svo., cloth. Third Edition. A TREATISE on the LAW of MINES and MINERALS. By William Bainbuidge, Esq., F.G.S., of the Inner Temple, Barrister at Law. Tiiird Edition, carefully revised, and much enlarged by additional matter relating to manorial rights— rights of way and water and other mining easements— the sale of mines and shares — the construction of leases— cost book and general partnerships — injuries from undermining and inundations — barriers and working out of bounds. With an Appendix of Forms and Customs and a Glossary of English Mining Terms. " When a work has reached three editions, critici.sm as to its practical value is .superfluous. We believe that this work was the first pub- lished in En(;land on the special subject of mining law — others have sin^e been published — but we see no reason in looking at the volume before us to believe that it has yet been super- seded." — Liiu Mni/nzine. " Mr. Bainbridge was we believe the first to collect and publish, iti a separate treati^e, tlie Law of Mines and .Mineials, and the work was so well done that his volume at once took its place in the law library as the text book on the subject to which it was devoted. This work must be already familiar to all readers whose practice brings them in any manner in con- nection with mines or mining, and they well know its value. We can only say of this new- edition that it is in all respects worthy of its predecessors." — Law Tim ft. " .\fter an interval of eleven years we have to welcome a new edition of Mr. Bainbridge's work on mines and minerals. It would be entiiely superfiuous to attempt a general re- view of a work which has for so long a period occupied the position of the standard woik on this important subject. Those only who, by the nature of their practice, have learned to lean upon Mr. Bainbridge as on a solid statf, can appreciate the deep research, the admira- ble method, and the graceful st; le of this model treatise. Therefore we are merely re- duced to the inquiry, whether the law has, by force of statutes and of judicial dei isions, un- dergone such development, modification, or change since the year 1 850 as to justify a new- edition 1 That question may be readily answered in the athrmative, and the additions and corrections made in the volume before us furnish ample eviilenie of the fact. It may be also stated that this book, being priced at 30j., has the exceptional character of being a cheap law publication." — Lair Joiinial. o 28 LAW WORKS PUBLISHED BY -O Civil Service Examinations. 8vo., 1*. sewed. ON REPORTING CASES for their PERIODICAL EXAMINATIONS by Selected Candidates for the Civil Service of India : Being a Lecture delivered on Wednesday, June 12, 18G7, at King's College, London. By John Cutler, B.A., of Lincoln's Inn, Barrister at Law, Professor of English Law and Jurisprudence and Professor of Indian Jurisprudence at King's College, London. Davis's Criminal Law Consolidation Acts. 12mo., lOs. cloth. THE NEW CRIMINAL LAW CONSOLIDATION ACTS, 18G1 ; with an Introduction and practical Notes, illustrated by a copious reference to Cases decided by the Court of Criminal Appeal. Together with alphabetical Tables of Offences, as well those punishable upon Summary Conviction as upon Indictment, and including the Offences under the New Bankruptcy Act, so arranged as to present at one view the particular Offence, the Old or New Statute upon which it is founded, and the Limits of Punish- ment ; and a full Index. By James Edward Davis, Esq., Barrister- at-Law. 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" Mr. Powell's writing is singularly precise and condensed, without being at all dry, as those who have read his admirable I'.ook of Kvidence will attest. It will be seen, from our outline of the contents, how exhaustively the subject has been treated, and that it is entitled to be, that which it aspires to become, the text book on the Law of Carriers." — I^aw Times. " 1 he .subject of this treatise is not indeed a large one, but it has been got up by Mr. I'owell with considerablecare,andcontainsam;>le notice of the most recent cases and authorities." — Jtirisl. " 1 he two chapters on the Railway and Canal Traffic Act, ]H5t), are quite new, and the recent cases under the provisions of that statute are analyzed in lucid language."— Xazo Magazine, Phillips on the Law of Lunacy. Post 8vo., 18s. cloth. THE LAW CONCERNING LUNATICS, IDIOTS and PERSONS of UNSOUND MIND. By Charles Palmer Phillips, M.A., of Lincoln's Inn, Esq., Barrister at Law, and Secretary to the Com- missioners of Lunacy. 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